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https://www.courtlistener.com/api/rest/v3/opinions/3851912/ | Argued April 14, 1927.
Plaintiff's husband was a truck driver for the defendants, E. H. B. Claar. While at his home, and not in the course of his employment, he ran a splinter into the ball of his left foot. The wound festered and he was unable to work for about a week. At the end of that time, he returned to work and drove the truck a distance of some sixteen miles, using the left foot to depress the pedal which releases the clutch, just as he had always done and was compelled to do by the construction of the machine. The next day the wounded foot was much worse, he was taken to a hospital, and died of tetanus within twenty-four hours.
Claiming that his employers were liable under the Workmen's Compensation Acts, plaintiff initiated these proceedings. The referee made an award in her favor, the workmen's compensation board approved the finding, but the court of common pleas reversed and entered judgment for defendants. Plaintiff thereupon took the present appeal.
It is not claimed that there was an accident, or any unusual happening, in the course of the work decedent did after the splinter ran into his foot; but it is alleged by plaintiff, and denied by defendants, that the pressure on the ball of the foot, in the way he was required to use it, made the wound worse, and hastened his death. It is not necessary for us to consider the evidence bearing on *Page 421
that point, for we are of one mind that defendants are not liable in any event.
Section 301 of the Workmen's Compensation Act of June 2, 1915, P. L. 736, 738, says that the parties entitled under the statute shall receive "compensation for personal injury to, or for the death of, such employee, by an accident, in the course of his employment. . . . . . The terms 'injury' and 'personal injury' as used in this act shall be construed to mean only violence to the physical structure of the body, and such disease or infection as naturally results therefrom." It is clear that, if the language quoted is to be given its normal meaning, plaintiff cannot recover, for there was no violence to the physical structure of the body, in the course of the employment, nor any disease or infection arising from an accident occurring during that time. Plaintiff alleges, however, that, in furtherance of the beneficial purposes of the statute, we have construed those words liberally, and that such interpretation makes the defendants liable. But this is an error.
In McCauley v. Imperial Woolen Co., 261 Pa. 312, 327, we said that "It is plain from these provisions that the act before us contemplates injuries by accident only, and, therefore, does not cover what are termed 'occupational diseases'. . . . . . In short, if the incident which gives rise to the injurious results complained of can be classed properly as a 'mishap' or 'fortuitous' happening, — an 'untoward event, which is not expected or designed,' — it is an accident within the meaning of the Workmen's Compensation Law: see House of Lords Case of Fenton v. Thorley Co., 19 T. L. R. 684, 685; Boardman v. Scott Whitworth (1902), 1 K. B. 43, 46. When, however, death results from germ infection, to bring a case of this character within the Act of 1915, supra, the disease in question must be a sudden development from some such abrupt violence to the physical structure of the body as already indicated." *Page 422
In Lane v. Horn Hardart Baking Co., 261 Pa. 329, 332, we said, "On the governing rules of law, the commissioner correctly states: 'The term "personal injury" in our act is confined to injuries of accidental origin and such diseases as naturally result therefrom, and must be held to include [only] any form of bodily harm or incapacity [accidentally] caused by [either] external violence or physical force.' "
In Clark v. Lehigh Valley Coal Co., 264 Pa. 529, 533, we said: "If death comes, during the course of employment, in an ordinary way, natural to the progress of a disease with which one is afflicted, and with which he was smitten before the accident, there can be no recovery (McCauley v. Imperial Co., supra, 327; Lane v. Horn Hardart Co., supra, 333); but, if the demise is brought about by an injury due to some mishap, or accident, happening during the course of his employment, the fact that deceased had a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation."
In Mauchline v. State Insurance Fund, 279 Pa. 524, 526, it is said: "To be an accident, within the Workmen's Compensation Law, the injury must usually result from some undesigned event occurring at a particular time" during the course of the employment.
In Gausman v. Pearson, 284 Pa. 348, 354, we said: "The next question is, Can this claim be sustained on disability resulting from apoplexy? This must be answered in the negative. Treating what happened to claimant that Saturday noon as the beginning of the apoplectic disturbance and a part thereof, it was not shown to have been an accident within the meaning of the Workmen's Compensation Law. To constitute an accident there must be some untoward occurrence aside from the usual course of events. . . . . . Disability, overtaking an employee at his work, is not compensable unless the result of accident. And the burden is on claimant *Page 423
to prove it was such and not from natural causes: Skinner's Pennsylvania Workmen's Compensation Law, 54, and cases there cited. True, Dr. Frederick attributed the exhaustion, or stroke, to claimant's exertion in the performance of his work and expressed the opinion that but for the work it would not have happened at that time; in other words that the disability was hastened by the work; even so, that alone would not constitute an accident; otherwise it would be unsafe to give employment to anyone advanced in years. Disability, hastened by such exercise, cannot be treated as accidental; neither can death or disability overtaking an employee in the course of his employment, and resulting from a natural cause; if it could, it would render the employer an insurer of the life and health of the employee."
From this review of the relevant authorities, it is clear that plaintiff is not helped by them. She could not recover unless there was "an accident in the course of the employment." Here there was none. The finding by the referee that there was such an accident, is reviewable by us since there was no evidence to support it (Stahl v. Watson Coal Co., 268 Pa. 452; Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 207); this latter case (page 210) being also authority for the proposition that "where, despite the opportunities afforded by the Workmen's Compensation Law, no relevant evidence at all is produced to sustain a particular finding, the courts are not obliged to return the record to give the one bearing the burden of proof a further opportunity to establish his case." A fortiori this must be so where, as here, the claimant proves such a state of facts as shows she has no cause of action.
The judgment of the court below is affirmed. *Page 424 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3851921/ | This appeal is from an order entered by the court below, after a hearing de novo, sustaining the action of the board of school directors of the School District of the Borough of Tarentum in dismissing W. A. Swick, appellant, as a professional employee of the school district and directing that he be discharged.
For some years prior to June 19, 1936, appellant, W. A. Swick, was employed as principal of the Tarentum High School. On that date he was notified by the school board that he had one year within which to find a new *Page 199
position or elect to stay at the end of that period as an ordinary teacher. On March 9, 1937, he received a second notice from the board that he would not be retained as principal the following year and was given until March 26, 1937, to accept the offer of a teaching contract. Appellant applied to the board for the teaching contract on March 25, 1937, the day before expiration of the period of election, but the board did not meet to pass upon his application until after passage of the Teachers' Tenure Act of April 6, 1937, P. L. 213, and he received no notification of appointment as teacher for the ensuing year until April 13, 1937. Under these circumstances, it was held that appellant had not waived his rights under the principal's contract and that he was entitled to a new contract as principal: Teachers' Tenure Act Cases, 329 Pa. 213, 238-39.
On February 15, 1938, the board executed a contract with appellant, as principal, for the school term 1937-38, and on the same date notified him of certain charges which had been made against him. The taking of testimony on these charges was commenced on February 28, 1938, the date fixed for hearing, before six of the seven members of the board, but was not completed, and the hearing was adjourned until March 3, 1938. On the latter date only five members of the board were present, the sixth member who was present on February 28, 1938, being absent on account of illness, and the board adjourned the hearing, over appellant's objection, without calling any witnesses. No further action was taken until September 15, 1938, on which date the board passed a resolution discontinuing the charges filed on February 15, 1938, and new charges were then made against appellant by a former member of the board. These charges included incompetency, wilful and persistent negligence, cruelty, and persistent and wilful violation of the school laws, and were substantially the same as those of February 15, 1938. After hearings, which the court below has found were conducted in a fair and impartial manner, *Page 200
the board concluded that the charges, other than the charge of cruelty, had been sustained and, accordingly, adopted a resolution that appellant be dismissed.
Upon receiving notice of this action, appellant took an appeal to the common pleas, and requested a hearing de novo. Without making any findings of fact or conclusions of law as to the merits of the charges against appellant, the court sustained the appeal, on the grounds that the board had no legal right to adjourn or continue the hearing, once begun, over appellant's protest, and that a discontinuance of proceedings on the charges made against him on February 15, 1938, did not permit the filing of the same charges thereafter. On appeal to the Superior Court the order of the common pleas was reversed and the record remitted for further proceedings and disposition on the merits: Swick v. Tarentum Boro. SchoolDist., 141 Pa. Super. 246 (allocatur refused, 141 Pa. Super. xxxiii).
At the ensuing hearing in the court below, the evidence taken before the board was made part of the record, by stipulation of counsel, as though given on the hearing de novo, and additional evidence was presented to the court. On December 9, 1940, the court filed its adjudication, in which it sustained the action of the board, on the grounds of wilful and persistent negligence and persistent and wilful violation of the school laws, and entered an order dismissing the appeal and directing that appellant be discharged. Exceptions filed by appellant were dismissed by the court en banc, after argument, as were also exceptions filed by the board to the trial judge's failure to sustain the charge of incompetency, and the present appeal was then taken.
On this appeal it is sought by appellant to relitigate, as part of the present case, certain procedural questions, unrelated to the merits, all of which were involved, considered, and finally and conclusively determined against him on the prior appeal to the Superior Court, and are not, therefore, now open to further review. See Swick v. *Page 201 Tarentum Boro. School Dist., supra. Accordingly, the only questions properly before us at this time are those relating to whether the findings of the court below as to alleged derelictions of duty on the part of appellant are sufficiently established by the evidence and, if so, whether the omissions shown, or any of them, constituted valid cause for his dismissal under section 1205 (a) of the School Code, Act of May 18, 1911, P. L. 309, as amended by the Act of May 29, 1931, P. L. 243, section 26, and the Act of April 6, 1937, P. L. 213, section 2, providing as follows: "The only valid causes for termination of a contract in accordance with the provisions of this section shall be — Immorality, incompetency, intemperance, cruelty, wilful and persistent negligence, mental derangement, persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe, or substantial decrease in the number of pupils or students due to natural causes." As to these matters we are unable to conclude that any of the material findings and conclusions of the court below are unsustained by the evidence or clearly erroneous, and we are, hence, of opinion that its order that appellant be discharged was just and proper, in the circumstances disclosed by the record, and must be affirmed.
The finding of persistent and wilful violation of the school laws is based principally upon appellant's omission to conduct monthly fire drills in the Tarentum High School during the school year 1936-37 and for some years prior thereto. Under the Act of May 12, 1911, P. L. 294, which applies not only to public schools having fire escapes, as appellant apparently contends, but to all public schools having fire escapes, appliances for the extinguishment of fires, or proper and sufficient exits as required by law, "either or all", and the Act of April 27, 1927, P. L. 450, which applies to all public schools as well as to private schools, it was appellant's duty, as "principal" or "teacher in charge" of the Tarentum High School, to conduct fire drills periodically in such school, not less *Page 202
frequently than once a month, throughout the school term. The district superintendent of schools so instructed appellant, and directed that the drills for the high school be conducted in accordance with rules and regulations prepared by the State Fire Marshall, under the direction of the Superintendent of Public Instruction, which he delivered to appellant, providing, inter alia, as follows: "Fire drills must be held at least once a month. Oftener until pupils learn the signals and regulations." Appellant admits fire drills were not conducted monthly in the Tarentum High School, as prescribed and directed, and that he never held fire drills during the winter months, stating he "made it a point not to have fire drills in weather that would endanger the children's health." Four or five drills at most were conducted by appellant during the nine-month school year, at irregular intervals in the spring and fall, and drills were never conducted when the pupils were in chapel or assembly. This conduct on the part of appellant, in disregard of the statutes and regulations issued by the Superintendent of Public Instruction, and in defiance of the express directions of his immediate superior, the district superintendent of schools, amounted to a clear violation of the school laws and his contract, both persistent and wilful, as the court below found, and, in our opinion, affords ample justification, of itself, for his removal as principal. CompareGanaposki's Case, 332 Pa. 550. As the opinion of the court below states: "The provisions of the statutes are mandatory, and are to be enforced in order that panics may be averted and tragedies prevented. . . While it may be a laudable resolution not to subject the children to the perils of inclement weather, this seems to be a rather lame excuse for failure to comply with a specific mandate which has for its purpose the prevention of loss of life. In our climate, it would seem that even during the winter there are times when this risk could safely have been taken. However that may be, the legislature, in the exercise of its power so to do, has specifically *Page 203
undertaken to require that these drills shall be held, and it is not within the appellant's discretion to disregard its mandate or substitute his judgment in a matter so vital to the interests of the school children of this Commonwealth." But the order of the court below does not rest upon this finding alone. The court found further that appellant was guilty of wilful and persistent neglect of his duties, as principal, in that he failed to conform to accepted and recognized standards as to supervision of instruction, failed to hold proper faculty meetings, failed to give proper directions to teachers, and failed properly to coordinate the courses of study from year to year. These findings are clearly sufficient to sustain the charge of wilful and persistent negligence, as the court below held, and, being supported by competent evidence, they must be accepted by us on this appeal: Horosko v. Mt. Pleasant Twp.Sch. Dist., 335 Pa. 369, 371; Lane's Appeal, 141 Pa. Super. 259,262.
In addition to the matters already referred to, the evidence discloses that appellant failed to establish or enforce regulations calculated to preserve order in the hallways and in the incoming and outgoing of the students, although the need for such measures was repeatedly called to his attention by the district superintendent; that he failed to establish student participation in control of discipline, contrary to a resolution of the board of directors and the instructions of the superintendent directing that he do so; and that for a period of three years he neglected to schedule a weekly assembly of the students, over the repeated objections of the superintendent and in disregard of the express directions of the board, for the reason that there had been some disorder, which apparently he could not control, and because he thought it no longer advantageous to the school. While it may be that much of the evidence as to these complaints was too remote, in point of time, to warrant a finding of wilful and persistent negligence or, as the court below thought, indicated at most "a *Page 204
tendency on the part of appellant to delay action and put off problems until another day", we think the court might well have concluded, as did the board, that this evidence, and other evidence disclosed by the record, including that relating to appellant's foolish maintenance of hostility between himself and his assistant principal, his failure to prepare proper schedules, and his giving of unauthorized credits and diplomas, was, nevertheless, amply sufficient to sustain a finding of incompetency. As is stated in the separate opinion filed by Judge PATTERSON: "It may well be that any single act of an administrative officer could not be invoked as a cause for dismissal, and yet when often repeated and when taken in connection with analogous actions indicative of a disregard for duty, defiance of supervisory authority, and general incompetence, the whole structure becomes a character index, evincing definite inaptitude for a place of authority, especially in our schools, where the welfare of the youth is vitally at stake . . . [Considered as a whole, the evidence indicates] a woeful lack of capacity that has too long endured."
Order affirmed at appellant's cost. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3857029/ | Argued April 14, 1943.
The decedent, Clarence J. Smith, was a piano tuner by occupation. For many years he was employed by the defendant company to go out and tune pianos on their order. He worked on the defendant's orders *Page 535
every Monday, Wednesday, and Friday at $4 per day; and on Saturdays he generally tuned pianos at the William Penn Hotel in the City of Pittsburgh at $2 for each piano tuned, with a minimum of $4. The hotel paid for this by remittance to the defendant company, and they in turn paid the decedent $2 for every piano tuned. The decedent had private work of his own, unconnected with the defendant, and on days that he would take care of his own clientele he would not receive his customary $4 (if that happened on a Monday, Wednesday, or Friday).
On Saturday, October 7, 1939, the decedent went to the William Penn Hotel prior to 9:00 A.M. and began work on some pianos on the seventeenth floor of the hotel. He finished or left this work at 9:30 or 10:00 A.M. and left the seventeenth floor. He was not seen again until 4:30 P.M. when he was hit by an automobile in the middle of the intersection of William Penn Way and Sixth Avenue, in the City of Pittsburgh as he was crossing from the opposite side of Sixth Avenue, going in the direction of the hotel. After being struck, he entered the William Penn Hotel about 5:00 P.M. to work on a piano in the "Chatter-box," a room on the first floor. On October 22, 1939, the decedent died as a result of the wounds inflicted when he was struck on October 7, 1939.
The evidence indicated that the defendant company carried compensation insurance and social security on the decedent.
The referee found that the claimant's decedent was in the course of his employment with the defendant at the time of the accident; that he was an employee within the meaning of the Workmen's Compensation Act, and awarded compensation to the widow, claimant.
An appeal from the referee's findings was taken to the Workmen's Compensation Board. The Board, with some modification of the wage rate, affirmed the referee's *Page 536
findings of fact and conclusions of law and ordered the payment of compensation. The defendant then appealed to the Court of Common Pleas of Allegheny County, which court in an opinion by MARSHALL, J., dismissed the appeal and affirmed the order of the Board and entered judgment in favor of the claimant and against the defendant. From that judgment the defendant has taken this appeal. Appellant contends first, that decedent was an independent contractor, and secondly, if he was an employee of defendant company, the accident did not occur in the course of his employment.
Section 301 (c) of the Workmen's Compensation Act of 1939, P.L. 520 provides, inter alia, "The term injury by an accident in the course of his employment shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer whether upon the employers premises or elsewhere. . . . . . ."
The witness, A. Razaire, head houseman of the William Penn Hotel, testified that he saw the claimant's husband on the seventeenth floor at 9:30 A.M. tuning a piano; he further stated that he did not see him again until 4:50 P.M. coming into the main entrance of the hotel. The witness, Toth, another employee of the hotel, testified that the decedent left the Urban Room (seventeenth floor) about 10:00 A.M. and he did not see him again until "ten to five" that afternoon in the Chatter-box Room. There is no testimony whatsoever to establish where the decedent had been from 10:00 A.M. until 4:30 P.M. when he was struck while crossing the intersection of William Penn Way and Sixth Avenue.
There is no evidence which would warrant the conclusion that decedent was an independent contractor. All of the testimony warrants the conclusion that he was an employee of defendant company. The sole *Page 537
question is whether there is any testimony to establish that the accident occurred in the course of his employment. Having occurred off the premises, claimant has the burden of establishing that decedent was at the time of the accident actually engaged in the furtherance of the business of his employer.
In Shoffler v. Lehigh Valley Coal Co., 290 Pa. 480, 484,139 A. 192, Mr. Justice KEPHART stated that "injuries suffered in the course of his employment do not include (a) injuries received while away from the actual place of employment, where the deviation or departure is wholly foreign to his duties, and amounts to an abandonment of employment. . . . . ."
In Moyer v. Reading Co., 112 Pa. Super. 19, 21,171 A. 105, President Judge TREXLER said: "The claimant seeking compensation for his death must prove that at the time he was struck he was engaged in furthering the business of his employer. . . . . . The inference that he was `actually engaged in the furtherance of the business or affairs of the employer' must be more than a mere conjecture. Poffinberger v. Martin Co., 83 Pa. Super. 524; Stevens v. Parker Co., 108 Pa. Super. 520,165 A. 665."
In Titus v. S.E. Sostmann Company et al., 133 Pa. Super. 201, 2 A.2d 580, it was held by this court in an opinion by Judge RHODES, that an employee is not entitled to compensation for injuries occurring off the premises of his employer, unless at the time of the accident the employee was actually engaged inthe furtherance of the business or affairs of his employer.
When claimant's decedent left the hotel in the morning it was with the intention of returning later in the day to tune another piano in the hotel. It would be a reasonable inference, in view of the fact that he had the right to serve personal clientele, that he went on a mission of his own when he left the hotel, and *Page 538
therefore took himself out of the employment for which he went to the hotel in the morning on behalf of his employer, and did not resume the duties of his employment with the defendant until he reentered the hotel.
In Knowles v. Parker Wylie Carpet Co., Inc. et al., 129 Pa. Super. 257,259, 195 A. 445, it was held by this court, in an opinion by Judge BALDRIGE: "Ordinarily, when an accident occurs to an employee off the employer's premises, there is no presumption that at the time of the accident he was in the course of his employment. The burden rests upon the claimant to prove, by competent evidence, that when the accident occurred he was actually engaged in a furtherance of the business or affairs of his employer (Hunter v. American Steel Wire Co., 293 Pa. 103,141 A. 635; Altman v. Kaufmann Realty Co. et al., 110 Pa. Super. 178, 167 A. 394; Paulin v. Williams Co. Inc. et al., 122 Pa. Super. 462, 186 A. 415, affirmed by the Supreme Court); and that his presence was required there by the nature of his employment: Shoffler v. Lehigh Valley Coal Co.,290 Pa. 480, 139 A. 192; Leacock v. Susquehanna Coll. Co., 98 Pa. Super. 581; Baumann v. Howard J. Ehmke Co. et al., 126 Pa. Super. 108, 190 A. 343."
We are of the opinion that the claimant's proof fell short of carrying the burden placed on her to establish that the decedent was at the time of the accident actually engaged in the furtherance of the business or affairs of his employer as required under the Act of Assembly.
Judgment reversed and now entered in favor of the defendant. *Page 539 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3848603/ | We concur in the order made by the court below and since in the opinion filed satisfactory reasons are set forth in support of the order, no further discussion is required.
Order affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3851922/ | The plaintiff was a passenger in an automobile driven by William Lennox on West Ohio Street in the City of Pittsburgh. While traveling eastwardly toward Federal Street, the left front wheel struck a hole in the street, causing the driver to lose control, and the automobile was deflected into a telegraph pole along the sidewalk. The hole was five or six inches deep, about a foot in width, and two and a half feet in length. It had been *Page 346
there from the previous winter. The accident occurred on May 16, 1938, about 11:30 P. M. The driver of the automobile explained that he did not see the hole because it was dark and the hole looked somewhat similar to that portion of the street car track, which was paved with cobble-stones. After striking the hole, the driver testified to hearing a loud crash which sounded like a blowout. When the automobile stopped it was against the pole, with the right rear wheel up over the curbstone, and the tire on that wheel was flat. Joseph Ingram, the plaintiff, was seriously injured.
Before this court the appellant raises two questions: First, the driver of the car having stated immediately after the accident that he thought a blowout was the cause, is there error in the Court's charge if it fails to contain a clear statement on the issue of fact as to whether the defect in the street or the blowout was the cause of the accident? Upon the subject of proximate cause, the learned trial judge charged: "Was the negligence of the City of Pittsburgh the proximate cause of the accident? That is to say the nearest cause, that is what the word proximate means. Was it the nearest cause of what took place, not nearest necessarily in time but nearest in causal relationship to what occurred. Now it might be the nearest, that is to say the proximate cause, even though there was negligence also on the part of another person, that is to say you might find that there was some negligence on the part of the operator of the automobile, but if that negligence of the City of Pittsburgh contributed to the happening of the accident and the accident would not have occurred except for that negligence on the part of the City of Pittsburgh, then you may properly find that so far as negligence of its own is concerned, the City of Pittsburgh would be answerable to the plaintiff. If the City was negligent but its negligence did not have anything to do with the happening of the accident, then your verdict should be for the defendant, the City. But if its negligence did have *Page 347
something to do with this accident, did contribute to the happening of the accident, then the next question is what about the plaintiff and his conduct in connection with the accident." The appellant in its brief states "this portion of the Charge is technically correct in defining 'proximate cause' as 'nearest in causal relationship'. It is still correct in saying that the City may be liable if its negligence contributed to the cause of the accident together with some negligence on the part of the driver, although an instruction upon intervening cause might not have been amiss. But it is respectfully submitted that the failure to state the issue as between the rut and the blow-out was basically misleading and erroneous." With this final conclusion we cannot agree. An examination of the record discloses no testimony to show a blowout of the tire prior to striking the hole or rut in the street. In fact the weight of the evidence is to the effect that the automobile struck the rut or hole, thereby causing the driver to lose control, causing his foot to miss the brake and hit the accelerator, speeding the car into the pole at the side of the highway, and then the right rear wheel struck the curb, causing the tire to blow out and flatten.
The Court asked the attorneys on both sides if they had any requests for additional charge, or any corrections, and none was stated. No request was made for the additional instruction which appellant now claims should have been given, nor was any specific exception taken to the instructions as given. The appellant may not now complain of the inadequacy of a charge on a particular point when no request to give a more extended charge was presented to the trial court: Rowles v. Evanuik,350 Pa. 64, 72, 38 A.2d 255. In Mastel v. Walker, 246 Pa. 65, at 71, 92 A. 63, we stated: "While the instructions on the measure of damages were somewhat scant, and the adequacy of the charge may be justly criticized in that and, possibly, in other respects, yet, it contains no positive misstatements of law, or anything *Page 348
tantamount thereto. At the trial, the appellant made no specific objection to any particular part of the charge; moreover, he neither complained of its inadequacy, nor submitted any requests for instructions on the proximate cause of the accident, or upon the measure of damages or the evidence relating thereto. In Fortney v. Breon, 245 Pa. 47, we recently said, 'Under such circumstances, the rule is that if an instruction is clearly erroneous on the question of damages, it is ground for reversal, no matter whether specific instructions were requested or not, but if the charge be only inadequate, it is the duty of counsel to ask for more definite instructions, and failure to do so will, as a rule, be deemed a waiver of any objection that might otherwise be made, especially where it is obvious that no harm was done by the matter complained of (Burns v. Penna. R. R. Co., 239 Pa. 207); and this rule applies in the present instance.' " In Klein et ux. v. Weissberg, 114 Pa. Superior. Ct. 569, at 574, 174 A. 636, it was stated: "Appellant also complains because the trial judge did not give the jury instructions that defendant's negligence must be the'proximate cause' of the accident. The lower court points out in its opinion that the trial judge asked both counsel at the conclusion of his charge if they desired him to add or correct anything, and defendant's counsel did not request him to say anything to the jury on 'proximate cause': . . . Furthermore, we doubt the wisdom or advisability of a court's using abstruse legal terms to instruct a jury where their use is not absolutely necessary. 'Proximate cause' means nothing to an ordinary jury, and in most cases an attempt to explain it to them, when not necessary, would only befog the issue." There was no evidence in this case to indicate a tire blowout before striking the rut or the curb, and if the hole in the street brought about such a result, it would still be the proximate negligence causing the injury to the plaintiff, permitting the plaintiff to recover from the City under all the facts produced in this case. *Page 349
The second reason assigned by the defendant for a new trial was the contradiction in the testimony of the plaintiff at this trial concerning occupation and earnings, as against that given before the Liquor Control Board and at two prior trials of this same case. There was sufficient testimony, if believed by the jury, to sustain the verdict they returned, and there is no complaint by the appellant that the verdict is excessive. Although marked inconsistencies and contradictions appeared in the testimony of the plaintiff, yet, the findings of fact being based on oral testimony, even when parts thereof are inconsistent, the question of credibility is for the jury. So when the plaintiff's testimony at various times, and with which he is confronted, is shown to differ from that offered at the trial and is apparently inconsistent therewith, leaving it uncertain just what his recollection is of the facts respecting which he testifies, it is the province of the jury to reconcile the conflicting statements, or to draw the line between them and say which shall prevail. See Ely v. Pittsburgh, Cincinnati,Chicago St. Louis Railway, 158 Pa. 233, 238, 27 A. 970; Dankov. Pittsburgh Railways Company, 230 Pa. 295, 79 A. 511;Commonwealth v. Alessio, 313 Pa. 537, 544, 169 A. 764;Haverkamp et al. v. Sussman, 317 Pa. 187, 189, 176 A. 206;Anstine et al. v. Pennsylvania Railroad Company et al., 342 Pa. 423,429, 20 A.2d 774; Johnson v. Staples et al., 135 Pa. Super. 274,280, 5 A.2d 433. The learned trial judge called the jury's attention to the discrepancies in the testimony of the plaintiff and properly cautioned them as to their duty in passing on its credibility. Under the circumstances, the plaintiff's credibility was for the jury, and not for the court: Danko v. Pittsburgh Railways Company, supra. The request for a new trial was properly refused.
Judgment affirmed. *Page 350 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1063884/ | 593 S.E.2d 827 (2004)
42 Va. App. 650
John William REEVES
v.
COMMONWEALTH of Virginia.
Record No. 1190-02-2.
Court of Appeals of Virginia.
March 23, 2004.
*828 Michael Morchower (Sherry Netherland; Christopher C. Booberg; Morchower, Luxton & Whaley; Thorsen & Scher L.L.P., on brief), Richmond, for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: BENTON and CLEMENTS, JJ., and HODGES, Senior Judge.
JEAN HARRISON CLEMENTS, Judge.
John Williams Reeves was convicted in a jury trial of first-degree murder, in violation of Code § 18.2-32, and breaking and entering, in violation of Code § 18.2-90. On appeal, he contends the trial court erred in denying his motion for a new trial because the jury panel from which the jury for his trial was chosen was not randomly selected. He argues the trial court improperly permitted members of the term jury pool to volunteer for the jury panel. Finding no error, we affirm the trial court's judgment and Reeves's convictions.
I. BACKGROUND
On December 14, 2001, after a four-day trial, a jury in the Circuit Court of Albemarle County convicted Reeves of the first-degree murder of his former wife, Deborah Yount Reeves, and of breaking and entering.
On March 1, 2002, Reeves filed a motion for a new trial, alleging that, while awaiting sentencing, he learned the jury in his case had been chosen in an "irregular and unlawful fashion." Specifically, Reeves argued the trial court violated Code § 8.01-357's mandate that "[t]he jurors should be selected randomly" when, at the jury orientation held on December 3, 2001, the court requested and accepted volunteers from the jury pool to be on his jury panel.
*829 In support of his motion, Reeves submitted an affidavit executed on January 25, 2002, by Sandra V. Arbogast. In her affidavit, Arbogast stated that, having been "called as a potential juror to serve during the December 2001 Term of Court for the Circuit Court of Albemarle County," she attended an orientation session for that term's prospective jurors on December 3, 2001. Arbogast further stated in her affidavit that the following events occurred during and after that orientation:
A. The judge or clerk told the group that everyone had to serve at least five days during the term. He explained that an approximately four day criminal trial would take place during the week of December 11, 2001, and that jurors who volunteered to serve on that panel would not be required to serve on any additional days during that term if selected for actual service on the jury panel. Thereafter, people began raising hands to volunteer for the four day trial and their names were taken. I raised my hand and was selected as a potential juror for the criminal trial set to start on December 11, 2001.
B. I appeared at the Circuit Court of Albemarle County on December 11, 2001. I was not selected to be part of the jury panel and was dismissed. Because I was not selected for service on this trial, I remained eligible for further service during that term.
The trial court conducted a hearing on Reeves's motion for a new trial on April 17, 2002. At that hearing, the trial judge informed the parties that he was present at the jury orientation conducted on December 3, 2001, and confirmed defense counsel's representation that there was no court reporter there. Because there was no transcript of that proceeding, the trial judge expressed his willingness to state for the record his recollection "of what happened [at the orientation] and how the jury was selected," to which defense counsel responded, "Yes, sir. We would accept your the Court's representations to this regard."
The Commonwealth's Attorney then informed the trial court that he objected to the introduction of Arbogast's affidavit into evidence because, based on a conversation he had with Arbogast the week before the hearing, the affidavit did not accurately reflect Arbogast's recollection of what the judge or clerk said about the four-day trial that would start on December 11, 2001. Were Arbogast called to testify, the Commonwealth's Attorney explained, she "would not necessarily say" the judge or clerk described the four-day trial as a criminal trial.[1]
After further discussion of the Commonwealth's objection, the following colloquy took place:
THE COURT: ... So, why don't we do this. The affidavit is here as Exhibit B. [The Commonwealth's Attorney] has represented that he talked to the affiant, Sandra Arbogast, and is your representation, she doesn't remember the word criminal being used?
[COMMONWEALTH'S ATTORNEY]: Yes.
THE COURT: Okay.
[COMMONWEALTH'S ATTORNEY]: Her representation to me, was she remembers hearing the word criminal. She doesn't remember whether she heard it at the orientation or on December 11th, the first day of trial. She doesn't remember when she heard it.
THE COURT: So are you willing to have [the Commonwealth's Attorney's representation] be considered or at least
[DEFENSE COUNSEL]: Yes, that's to be considered. It could have been at orientation or it could have been at a later time.
THE COURT: On the day of the trial?
[DEFENSE COUNSEL]: Date of trial.
THE COURT: Okay.
[COMMONWEALTH'S ATTORNEY]: Date of the trial, there is a major significance there.
THE COURT: I understand. So let me go ahead and tell you what I remember [about the orientation]. On December 3rd, it's term day. And we have a hundred and twenty-five (125) jurors summoned ... [,] *830 selected randomly from the master pool. So a hundred and twenty-five (125) less anybody that had been excused for orientation were here for jury selection. The Court looks over its docket and sees how many trials it has for the term of December and January. Historically it is a light term because of the Christmas holiday. So we normally don't have jury trials from the 20th of December through after the new year. Traditionally the Court assigns six jury days at orientation. So jurors are asked to bring in calendars and the Court assigns days for jury service. And people who have conflicts are then able to take another date if a date suggested is not agreeable with the calendar. On this particular term it was announced that there was a four-day trial in December. I can honestly tell you I do not remember whether the word criminal or civil was mentioned. I believe it was a multi-day, four-day trial. And the Court stated that if jurors were willing to serve for a continuous four-day period that that would satisfy and I was either handing out five or six days as jury days. It's normally six, but if it's a light docket it could be five. But the way it was presented to the panel was I need jurors for the four-day trial, and then I'm going to assign other jury dates to the remaining jurors present. So everybody got dates assigned. So it was announced that I needed to have a show of hands of people who could do the four-day trial beginning December 11th. I took hands and went around the room randomly to identify people and have those people assigned for that jury trial. And I was my goal was to get forty (40) people to be on the panel and my recollection is I got up to thirty-nine (39) and that's all I could get in the terms of hands [of] people who could do it, and so we stopped at thirty-nine (39). I then assigned jury dates to the remaining jurors who were here. So all jurors got dates assigned on December 3rd for jury duty. And I do also recall that counsel objected to one of the jurors summoned because the juror was the wife of Detective Hope. So you all eliminated that person and we got another juror to replace is my recollection.
[COMMONWEALTH'S ATTORNEY]: Yes, sir, I notified the Court a couple of weeks in advance.
THE COURT: And that's what tends to tell me that maybe I didn't say it was a criminal trial. But I didn't even know Officer Hope's wife was in that thirty-nine (39). So I'm not sure I distinguished that the four-day trial was civil or criminal, but I'm not betting my life on it, because I don't remember. But anyway, that's what I remember as to how things happened on that day.
The trial judge added:
The only other thing I would supplement was that I I believe I recall, because I do this every term, is that there were no capital cases on the docket, so, you know, if anybody was concerned about a death penalty case, I just make the general announcement none of these trials are death penalties. But I didn't make any comment about this four-day trial that I can recall. I mean, it certainly wasn't a death penalty case, so I made that general announcement, but I do not recall whether I said criminal or civil. My inclination is that I said a four-day, but you can argue it all three ways, it's fine.
The trial court subsequently received Arbogast's affidavit "subject to [the Commonwealth's Attorney's] representation that it was either at orientation or the day of trial."
Reeves presented one witness in support of his motion for a new trial, Jacob Van Bowen, Jr., a retired professor of statistics, who qualified as an expert in the field of statistical analysis. Van Bowen presented a statistical analysis in which he had been asked to compare, in terms of race, age, and employment, the 125 members of the jury pool for the December/January term of court with the 38 members of the 40-member jury panel from which the jury for Reeves's trial was selected. Van Bowen explained that, because two members of the jury panel were not members of the jury pool, he did not include them in his statistical analysis. Van Bowen performed his analysis by reviewing the "List of Veniremen" for the December/January term and the "Jury List" of the *831 panel for Reeves's trial. Because the lists provided no information regarding the race of the members of the pool and panel, Van Bowen assumed, for purposes of his statistical analysis, that there was only one African American on the jury panel and that the jury pool had exactly the same racial composition as the population of Albemarle County at large. No evidence of the racial make-up of the jury pool or panel was presented at the hearing.[2] Van Bowen further assumed, based on information apparently from the United States Census Bureau on a print-out "possibly off the internet," that the African-American population of Albemarle County was 9.7% of the county's overall population. Based on these assumptions, Van Bowen concluded that it was "unlikely" (meaning less than a 5% probability) that a random selection process would have resulted in a jury panel of the age and racial make-up of the jury panel in Reeves's case.
Van Bowen also testified that the master list for the December/January term included "three professors, three registered nurses, two physicians, two medical technicians and one health physicist." When asked if any of those people appeared on the list for the jury panel, he testified, "I didn't check, but I didn't see those." He then stated that, although he had not calculated the percentage, the chances were "exceedingly small" that a random selection process would have resulted in the exclusion of all eleven of those people. The 40 members of the panel included, among others, a forensic toxicologist, two nurses, a social worker, a scientist, three teachers, a CEO, two executives, a vice president, two managers, an editor, a writer, and an insurance underwriter. Only two on the panel were listed as being retired.
On cross-examination, Van Bowen acknowledged that the difference between the average age of the members of the jury pool and average age of the members of the jury panel was "statistically insignificant" by itself and became significant only when combined with the racial disparity between those groups. He further acknowledged that, if the racial make-up of the jury pool did not coincide, as he assumed, with the racial make-up of the county at large, he "calculated the wrong thing." He also acknowledged that, if, contrary to his assumption, there were two African Americans on the jury panel instead of only one, the result of his statistical analysis "would be substantially different from what [he] calculated" and he would no longer be able to conclude that it was unlikely that a random selection process would have resulted in a jury panel of the age and racial make-up of such a panel.
After hearing argument, the trial court denied Reeves's motion for a new trial, specifically finding, inter alia, that there was "no irregularity" in the jury-selection process.
This appeal followed.
II. ANALYSIS
On appeal, Reeves concedes, as he did below, that the members of the 125-person jury pool for the December/January term and the members of his jury itself were properly chosen using random selection processes, as required by state law. He asserts, however, that the prospective jurors on the 40-member panel from which his jury was selected were not randomly selected because they were improperly permitted at the December 3, 2001 jury orientation "to volunteer" to serve on the jury panel for his four-day criminal trial. As a result, Reeves argues, the panel was "statistically dissimilar" in terms of race, age, and the "presence of health-care employees or professionals" from the panel that would have been selected had a random selection process been used. Thus corrupted, Reeves maintains, the panel could not then be cured by the random selection of the jury itself. Hence, Reeves contends, in allowing the members of the jury pool "to volunteer for the trial on which they would sit," the trial court deprived him of a randomly selected jury, in violation of Code *832 § 8.01-357.[3] Accordingly, he concludes, the trial court erred in refusing to grant his motion for a new trial. We disagree.
The right to a trial by an impartial jury is guaranteed under both the United States and Virginia Constitutions. See U.S. Const. Amend. VI; Va. Const. art I, § 8. This guarantee is reinforced by legislative enactment and by the rules of court. Code §§ 8.01-357, 8.01-358; Rule 3A:14(a)(7). It is the trial judge's duty to secure an impartial jury for the parties. Salina v. Commonwealth, 217 Va. 92, 93, 225 S.E.2d 199, 200 (1976).
Gosling v. Commonwealth, 7 Va.App. 642, 645, 376 S.E.2d 541, 543 (1989).
Here, Reeves filed a motion in the trial court requesting a new trial. In that motion he challenged the propriety of his convictions on the ground that the jury in his case had been chosen in an "irregular and unlawful fashion," because the trial court permitted members of the jury pool "to volunteer" to serve on the jury panel for his trial.
Reeves's motion for a new trial was made pursuant to Code § 8.01-352, which provides as follows:
A. Prior to the jury being sworn, the following objections may be made without leave of court: (0 an objection specifically pointing out the irregularity in any list or lists of jurors made by the clerk from names drawn from the jury box, or in the drawing, summoning, returning or impaneling of jurors or in copying or signing to failing to sign the list, and (ii) an objection to any juror on account of any legal disability; after the jury is sworn such objection shall be made only with leave of court.
B. Unless objection to such irregularity or disability is made pursuant to subsection A herein and unless it appears that the irregularity was intentional or that the irregularity or disability be such as to probably cause injustice in a criminal case to the Commonwealth or to the accused and in a civil case to the party making the objection, then such irregularity or disability shall not be cause for summoning a new panel or juror or for setting aside a verdict or granting a new trial.
Thus, in order to be granted a new trial on the basis of his motion, Reeves had the burden of establishing (1) that there was an irregularity in the impaneling of the 40-member jury panel from which his jury was selected and (2) that such irregularity was either intentional or caused prejudice to him. See O'Dell v. Commonwealth, 234 Va. 672, 690, 364 S.E.2d 491, 501 (1988). Upon our review of the record, we agree with the trial court that Reeves failed to prove that any irregularity had occurred.
"Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all "reasonable inferences fairly deducible therefrom." King v. Commonwealth, 264 Va. 576, 578, 570 S.E.2d 863, 864 (2002).
Applying this standard to the record before us, we initially note that the evidence is in equipoise as to whether the members of the 125-person jury pool were informed at the jury orientation session that the four-day trial starting on December 11, 2001, was a criminal trial. The trial judge, who was present at the orientation session, clearly said, "I'm not sure I distinguished that the four-day trial was civil or criminal, but ... I don't remember." In addition, the trial judge received Arbogast's affidavit subject to the stipulation that it proved she learned the trial was criminal either at the day of trial or at the orientation session. Thus, in the absence of other evidence, this evidence was in a state of equipoise as to whether the 125-person jury pool learned that the four-day trial was criminal.
We hold, however, that the record is devoid of relevant credible evidence that supports *833 Reeves's claim that the jury panel from which his jury was selected was "statistically dissimilar" in terms of race, age, and the "presence of health-care employees or professionals" from the panel that would have been selected had a random selection process been used at the orientation. In asserting that claim, Reeves relies solely on Van Bowen's testimony regarding his statistical analysis of the list of prospective jurors on the December/January term pool and the list of prospective jurors selected at the orientation to serve on the panel from which the jury for Reeves's trial was chosen. Based on his, analysis, Van Bowen concluded that the make-up of Reeves's jury panel, in terms of age, race, and employment, was unlikely to occur as a result of a random selection process.
Our review of the record, however, reveals two major evidentiary flaws in Van Bowen's analysis that, for purposes of this appeal, render his conclusions essentially meaningless. First, Reeves argues that the statistical analysis demonstrates a disparity in health-care professionals between the jury pool and jury panel. Van Bowen testified at the hearing that the master list for the jury pool included "three professors, three registered nurses, two physicians, two medical technicians and one health physicist." When asked, however, if any of those people appeared on the list for the jury panel, he testified, "I didn't check, but I didn't see those." He then stated that, although he had not calculated the percentage, the chances were "exceedingly small" that a random selection process would have resulted in the exclusion of all eleven of those people. Van Bowen did not explain and the record does not disclose the relevance of such a statistical analysis. Although those eleven people were not on the jury panel, the record indicates that other health-care employees and professionals were on the panel, including a forensic toxicologist, two nurses, a social worker, a scientist, three teachers, a CEO, two executives, a vice president, two managers, an editor, a writer, and an insurance underwriter. The failure of the analysis to include these jurors and to explain the relevance of the others discounts its validity.
Second, it is clear from Van Bowen's testimony at the hearing that two assumptions were critical to his determination that the combined age and racial disparity between the jury pool and the jury panel was not likely the product of a random selection process. Specifically, Van Bowen assumed, without any specific knowledge thereof, that the racial composition of the jury pool mirrored the racial composition of Albemarle County and that there was only one African American on the jury panel. No evidence providing a basis for either of these assumptions was presented at the hearing. In light of Van Bowen's testimony that the age disparity was statistically significant only when combined with the racial disparity, these assumptions were plainly essential to his conclusions. Indeed, Van Bowen acknowledged that, if there had been two African Americans on the panel, he could not have characterized the, age and racial make-up of the panel as an unlikely product of a random selection process. He further acknowledged that, if the racial make-up of the jury pool did not mirror the county's racial composition, he "calculated the wrong thing."
Having no basis in evidence, Van Bowen's conclusions amount to nothing more than mere speculation and conjecture. It is axiomatic that an appellant cannot establish reversible error by the trial court based on nothing more than speculation or conjecture. See, e.g., Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d 146, 151 (1994) (observing that the requisite showing on appeal of prejudice to a defendant by the denial of a continuance motion cannot be based on "mere speculation"). We conclude, therefore, that Reeves's claim that the jury panel from which his jury was selected was "statistically dissimilar" in terms of race, age, and the "presence of health-care employees or professionals" from the panel that would have been selected had a random selection process been used at the orientation is without merit.
Turning our attention to the actual selection by the trial court of the members of the panel from which Reeves's jury was chosen, we find that no irregularity occurred.
*834 Code § 8.01-355, which governs the stage of jury selection at issue here, provides that the "judge shall direct the selection of as many jurors as may be necessary to appear for the trial of any case. Any court shall have power to discharge persons summoned as jurors therein, or to dispense with their attendance on any day of its sitting."
Here, contrary to Reeves's characterization of those who served on the panel as "volunteers," we hold, based on the trial judge's description of what took place at the orientation, that the court did not improperly request and accept "volunteers" to serve on the panel. Initially, we note that the record indicates that the jurors who are summoned in this jurisdiction "are asked to bring in calendars" to the orientation session. At that session, the trial judge, after explaining to the prospective jurors that they would all be assigned dates for jury service and that service "for a continuous four-day period" would satisfy their jury duty for the term, announced that he needed jurors for a four-day trial starting on December 11, 2001. The trial judge then asked for "a show of hands of people who could do the four-day trial." (Emphasis added.). Upon receiving a show of hands, the trial judge "went around the room randomly to identify people and have those people assigned for that jury trial." Hoping "to get forty ... people to be on the panel," the trial judge found only thirty-nine members of the pool "who could do it." The trial judge then assigned jury dates to the remaining prospective jurors in the pool. The court "was ... handing out five or six days as jury days." All of the members of the pool "got dates assigned."
We conclude that, in selecting the jury panel from which Reeves's jury was chosen, the trial court did not seek out those members of the jury pool who expressed a desire to serve on the panel. Instead, the court sought out those members of the pool who indicated they were available to serve on the panel. In other words, the court separated those members of the pool who were able to serve as a juror on the four-day trial from those who were not. The judge reasonably could conclude that the jurors made that decision based in part on their calendars. Those who could serve those dates were assigned to the panel for the four-day trial; those who could not were assigned other dates. All members of the pool were assigned dates to serve.
Certainly, a trial court's discretion under Code § 8.01-355 permits it to avoid unnecessarily imposing a particular jury assignment upon a member of the jury pool who is unable to serve that assignment without undue burden, if the court sees fit to do so. See United States v. Anderson, 509 F.2d 312, 322 (D.C.Cir.1974). Here the court's "endeavor was to eliminate the tedious process of examining one by one the obviously large group who would seek to be excused for that reason." Id. In distinguishing between those who could serve on the four-day trial and those who could not, "the judge did not exclude anyone or any cognizable group. The sole criterion he employed was ability to serve ...; the panel from which the jury was drawn was distinguished only by that quality." Id. (footnote omitted).
Hence, we conclude that the methodology employed by the trial court in selecting the jury panel in this case was not irregular and did not violate Reeves's right to a trial by an impartial jury. We hold, therefore, that, because Reeves failed to meet his burden of proving that there was an irregularity in the impaneling of the jury panel, the trial court did not err in denying his motion for a new trial.[4]
Accordingly, we affirm Reeves's convictions.
Affirmed.
NOTES
[1] Neither party presented Arbogast as a witness at the hearing.
[2] Defense counsel asked the Commonwealth's Attorney to stipulate that there had been only one African American on the 40 member jury panel, but the Commonwealth's Attorney replied that he could not recall how many of the members of the panel were African Americans. Similarly, the trial judge indicated that he, too, could not recall the number of African Americans on the panel.
[3] Code § 8.01-357, which applies to the selection of the jury itself, provides as follows:
On the day on which jurors have been notified to appear, jurors not excused by the court shall be called in such manner as the judge may direct to be sworn on their voir dire until a panel free from exceptions shall be obtained. The jurors shall be selected randomly. The remaining jurors may be discharged or excused subject to such orders as the court shall make.
[4] Having determined that Reeves failed to establish an irregularity, we do not address whether the claimed irregularity was intentional or caused prejudice to Reeves. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3846409/ | Magen, the plaintiff, filed this bill against Neiman, Dubison and Margulis, claiming to be the holder of one-fourth interest in certain realty by virtue of a declaration of trust executed by the first named defendant, which property was subsequently conveyed to the second, and by him on the same day to the third. He asked that the deed to the latter be declared null and void and that Neiman be compelled to account to him as the owner of a one-fourth interest in the land. No preliminary objection was made on the ground that an adequate remedy at law existed, if the rights asserted were legally enforceable, as required by the Act of June 7, 1907, P. L. 440 (Bank of Pittsburgh v. Purcell, 286 Pa. 114), and the case proceeded to hearing. It is now too late to raise the question of jurisdiction in equity, and we must determine whether Magen produced testimony entitling him to the relief prayed for.
The facts found by the court, based on sufficient evidence, disclose the following situation: Neiman and one Pogach, now deceased, were, in 1925, partners, engaged in the real estate business, a fact well known at that time to Magen. On October 7th, they purchased certain property from Slominsky, the deed for which was duly recorded. The grantees were named as individuals, but the purchase price was paid with the firm's funds, and the land became in reality a partnership asset: Davis v. Hillman, 288 Pa. 16. An innocent purchaser, later acquiring an interest therein, had the right to rely on the record, which indicated the parties were tenants in common, but the rule is otherwise where, as here, there was actual notice of the firm's ownership (Erwin's App., 39 Pa. 535), a distinction recognized in Cundey v. Hall, *Page 168 208 Pa. 335, 339, a leading case frequently cited when the rights of parties under deeds so drawn are in question.
During February, 1926, Neiman, without the joinder of his wife, executed a written declaration of trust to Magen for one-half of his interest in the real estate, amounting to one-fourth of the entirety, for the sum of $3,182.07, but this paper was never recorded. Later, on July 11, 1927, the entire tract, with another parcel not involved in this proceeding, was conveyed by Neiman individually and as surviving partner of the firm, Pogach having in the meantime died, to Margulis, through the nominee of the latter, Dubison, a strawman, for the sum of $160,000, less a commission of $5,000. A settlement was made by the grantee with the full knowledge of Magen, and the deed recorded. The purchaser had no knowledge of the outstanding declaration of trust signed by Neiman, and its holder, the present plaintiff, though aware of the contemplated sale, made no objection to the transfer to Dubison, who thereafter conveyed to Margulis. Magen was within reach at the time of closing the transaction, and was advised that a check had been drawn to the firm for the balance due after provision for the outstanding liens. He knew this had been endorsed by the representatives of the firm and handed to Margulis, in part payment of an outstanding claim held by him. Plaintiff made no complaint of the sale until a year after the deeds referred to had been recorded. Admittedly, the purchasers were in entire ignorance of the existence of the unrecorded declaration of trust, and the beneficiary therein therefore had no claim by virtue of Neiman's writing purporting to transfer to him an undivided interest in the lands: Salvation Army v. Lawson,293 Pa. 459; Smith v. Miller, 296 Pa. 340; Meehan v. Williams,48 Pa. 238.
No relief could be granted against the two defendants named, and the deeds, taken in good faith, for a valuable consideration, cannot be declared null and void as *Page 169
prayed for. It was conceded by the plaintiff in the court below that a decree should be entered in their favor. On no other ground was relief sought as against them, nor was there any suggestion of a change of attitude by plaintiff in this respect set forth in the statement of questions intended to be argued, filed in the court below. On this appeal, however, a new theory is propounded, based on the fact that Margulis agreed to pay to Neiman a share of the profits which might be secured on a resale, in consideration of his services in effecting it, and it is therefore now urged that an injunction should have been awarded against Margulis to restrain him from making payment of any sum which the latter may earn, if such a transaction is consummated. It is insisted Magen, by reason of the declaration of trust, will become entitled to a share of any moneys which Neiman, through his efforts as sales agent, may receive. Such decree was not asked in the bill filed, nor was the case tried on the theory of the existence of any such right. It is too late to demand it here for the first time, even if it had merit (Prenzel v. Apex Hosiery Co., 299 Pa. 17; Luther v. Luther,216 Pa. 1; Linck v. Plankenhorn, 286 Pa. 319), though under the findings made it has none. Our view is not altered by a consideration of Shannon v. Early F. Co., 296 Pa. 141, relied on by appellants, and the bill was properly dismissed as to both Margulis and Dubison.
A different question arises as to the first defendant, who was asked to account for the value of one-fourth of the property in question, as well as for profits he might receive for his personal services if able to resell the property for Margulis at a profit. Magen's rights rest on the unrecorded written declaration of trust, executed by Neiman in 1926. It referred to property acquired by the partnership, of which he was a member, a fact known by plaintiff at the time. The deed named Neiman and Pogach as grantees, and if the recorded title alone had been depended on, the transferee would have had the *Page 170
right to believe they held as tenants in common. The court found that the firm was engaged "in operative building and the buying and selling of real estate," when it took title in 1925, and the evidence shows Magen knew the land was purchased with partnership funds, thus constituting it a part of the firm's assets: Act of March 26, 1915, P. L. 18. The property was occupied and used by the partnership until its sale in 1927. Appellant, in attempting to explain the failure of Mrs. Neiman to sign the declaration of trust, takes the position, at one point, that the property was at that time treated as a firm asset, for he states in his brief, (page 29), "Since the real estate was partnership property, Jennie Neiman had no dower interest in it."
The dispute as to the real character of the holding by Neiman and Pogach becomes important because of the evidence which shows that Magen surrendered any claim he had, based on the paper of 1926, by agreeing to the cancellation of his rights in consideration of the promise by Neiman to repay the sum advanced. The court found, on what we believe sufficient evidence, that such an understanding was reached, and that two payments amounting to $1,500 have already been made and received in part satisfaction of the total sum of $3,182.07, which sum Neiman agreed to pay and Magen to accept in full release of his demand acquired by the writing referred to. If this was a mere assignment of a fourth interest in the partnership, it was a right to personalty, and the agreement to release was clearly binding, though the promisor would be personally liable for the unpaid balance of $1,682.07, for such an interest could be transferred by parol. The court here found that it was so released. This is supported not only by the evidence of the parties, but the attending circumstances proven. The property was largely encumbered, and additional sums were required to pay interest on the mortgages, taxes and improvements, and Magen was unable to furnish the further funds needed, though called upon to *Page 171
make the necessary advances. It also appeared that though he knew of the negotiations for the sale of the realty in which he now claims to have an interest, and was present at the settlement, yet made no objection to the transfer of the title to Margulis, nor asserted the existence of any right therein at the time, or for a year after the deed was recorded.
It is earnestly contended, however, that the declaration of trust, unrecorded, and executed alone by the husband, effectively transferred the one-fourth interest in the land in question, and the holder is entitled to an accounting for its net value, as well as to a share of any profit which Neiman may earn if he resells the land at a profit, on behalf of the record owner. There would be force in this argument if Magen had not released and surrendered his rights to Neiman, upon the agreement of the latter to repay the money advanced, which understanding has been partly executed. It is urged that the equitable interest acquired in the land could not legally be retransferred by parol, because of the statute of frauds: Act of March 21, 1772, section 1, 1 Sm. L. 389, as amplified by the Act of April 22, 1856, P. L. 533, section 4.
Assuming that we are dealing with realty, rather than a personal interest in a partnership, we are still of the opinion that the waiver and surrender of Magen's claim was properly proven. It may be conceded that equitable interests in land can be conveyed only in writing (Murphy v. Hubert, 7 Pa. 420), but they may be given up if some unequivocal act, showing such purpose, appears, as by performance in whole or in part: Brownfield's Exrs. v. Brownfield, 151 Pa. 565. The power to so surrender has been recognized where executory contracts to convey are involved (Boyce v. M'Culloch, 3 W. S. 429), and the same conclusion is reached where no possession had been taken by the one acquiring an equitable interest: Dayton v. Newman, 19 Pa. 194; Garver v. McNulty, 39 Pa. 473. *Page 172
Appellant suggests that the rights of Magen could have been released had the original writing been returned, but this naturally would not have occurred until the balance of $1,682.07 was paid. Here, testimony showed an agreement to release, two payments on account, the known sale of the property to an innocent third person without claim of any right therein, and no assertion of any interest until more than a year thereafter. As said in Brownfield's Exrs. v. Brownfield, supra, "Where a contract may be surrendered by parol, the conduct of the parties may be quite as significant of their intention as any words they might use." A distinction is to be drawn between a waiver and discharge of an interest in land, shown by a contract of sale, or, as in this case, a holding of an interest therein for another, and a repurchase. In the latter case a writing is required to satisfy the statute of frauds. Where, however, the cestui que trust has never had possession, and accepted, in whole or in part, the consideration for a surrender of his rights, he cannot thereafter claim specific performance of his agreement, as here attempted: Grove v. Donaldson, 15 Pa. 128.
Treating the right covered by the trust agreement as partnership property, and therefore personalty, there can be no question as to Mangen's power to surrender his interest by parol. We reach the same conclusion if it be considered as equitable interest in land, under the circumstances here presented. The court justifiably held he released whatever right he possessed for a specific sum, of which practically one-half has been paid, and a definite amount is fixed as remaining due. There is therefore no necessity for an accounting, unless Neiman is legally under obligation to give plaintiff a portion of the profits he may in the future earn, if he effects a profitable sale for Margulis. Any such right was waived by Magen's parol surrender of all interest in his bargain, evidenced by the declaration of trust.
The decree of the court below is affirmed at the cost of appellant. *Page 173 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3851924/ | The facts are stated in the opinion of the court below by ALESSANDRONI, J., as follows:
This action, to recover the sum of $10,800.00 claimed as the balance of commission agreed upon for services rendered in connection with the refinancing of a mortgage secured on defendant's property, has yet to reach the stage of a hearing upon the merits. The statement of claim was met by a rule for more specific statement of claim. To the amended statement, filed thereafter, an affidavit of defense raising questions of law was filed; the reply to the affidavit of defense containing new matter, brought forth a rule for judgment for want of a sufficient reply, which is before us at this stage.
Defendant corporation is the owner of premises 925-27 Market Street, Philadelphia, Pa., which, on June 7, 1935, was encumbered by a mortgage in the face amount of $750,000.00, as reduced, given to the Pennsylvania Company *Page 523
for Insurances on Lives and Granting Annuities, Trustee, said mortgage bearing interest at the rate of six per cent per annum. On the last mentioned date, the following unrecorded and unacknowledged writing was delivered to the plaintiff:
"Rogers Realty Company 925-27 Market Street Philadelphia
June 7, 1935.
Mr. Albert Smukler, Phila., Pa.
Dear Sir:
This letter will authorize Albert Smukler to act as agent for the Rogers Realty Company, to secure a first mortgage of $550,000.00 upon the premises situated and known as Nos. 925-927 Market Street in the City and County of Phila., Pa.
That the mortgage to be secured shall be for the term of five years from the time of execution bearing interest at the rate of 5% per annum payable semi-annually.
For and in consideration of the procuring of the above mortgage, the Rogers Realty Company agrees to pay to Albert Smukler the sum of Eleven Thousand Dollars.
This authorization will remain in force until September 28, 1936, and up until that date if the Mortgage is secured by Rogers Realty Company, they are responsible to Al Smukler for $11,000.
Very truly yours, Rogers Realty Company (Corporate Seal) (Signed) Irving Blauner, President."
It has been stipulated by counsel that the plaintiff was not then and is not now licensed as a real estate broker or salesman, within the meaning of the Act of May 1, 1929, P. L. 1216, 63 Purdon Statutes Sec. 431, et seq. *Page 524
The amended statement of claim recites, inter alia, that pursuant to his written authorization, plaintiff succeeded in having the Pennsylvania Company for Insurances on Lives and Granting Annuities enter into a formal written agreement under date of December 13, 1935, extending the existing mortgage for a term of five years from August 17, 1935, as reduced in the principal sum thereof from $575,000.00 to $550,000.00, bearing interest at the rate of five per cent per annum, said mortgage to be amortized at the rate of $12,500.00 semi-annually. At the same time the defendant paid to the Pennsylvania Company for Insurances on Lives and Granting Annuities the sum of $5,750.00, being interest at the rate of one per cent for one year on $575,000.00, the principal sum then unpaid on the mortgage. Plaintiff further avers that shortly after October 10, 1935, he communicated the terms of the proposed extension of mortgage to the President of the defendant corporation who orally agreed thereto and agreed to pay to the plaintiff the sum of $11,000.00 originally agreed upon, provided plaintiff secured a third person to purchase a subordinated interest of $25,000.00 in the said mortgage, as required by the Pennsylvania Company, which purchaser the plaintiff did procure. Within a few days after the consummation of the extension agreement on December 13, 1935, the defendant made payment to the plaintiff of $200.00 on account of the agreed commission of $11,000.00 but has refused to pay the balance thereof.
In the new matter raised in the affidavit of defense, the defendant reasserts the position taken by it in the earlier affidavit of defense raising questions of law, to wit: that the Act of May 1, 1929, P. L. 1216, requires that persons engaged in the real estate business be licensed by the Department of Public Instruction, and, unless so licensed, may not bring suit for compensation for services rendered. It is averred that plaintiff was not so licensed and held no duly executed letter of attorney authorizing him to render the service for which compensation *Page 525
is claimed, as provided in an exception to the aforementioned Act (Section 2 (c)).
Plaintiff's reply to the new matter raises the issue of whether or not the letter of authority is a sufficient compliance with the Real Estate Broker's Act, which defendant denies and, further, that it authorizes only the obtaining of a new mortgage, whereas plaintiff obtained an extension of an existing mortgage; that the letter contemplated a five-year mortgage whereas the extension was for only four years, five months and four days. Likewise, the Rule for Judgment asserts that the letter "requires" a straight mortgage whereas the extended mortgage called for semi-annual amortization; that the said letter did not require the payment "of any bonus or premium," which the defendant was obliged to pay, nor did the letter contemplate the purchase of a subordinated interest by a third person, as required by the extension of mortgage. Fundamentally, however, it is the contention of the defendant that the action is being brought not upon the letter of authority, but rather upon the alleged oral agreement by defendant to accept the terms of the extended mortgage as proposed by the Pennsylvania Company and so consummated; that no action may lie on the then made oral agreement to pay a commission to the plaintiff, because of the provision of the Real Estate Broker's Act, supra.
Narrowed to the point of real dispute, therefore, the question raised by the present Rule is, "Did the plaintiff hold in good faith a 'duly executed letter of attorney' from the defendant-owner of the real estate authorizing 'the negotiation of any loan thereon.' " Act of May 1, 1929, P. L. 1216, Section 2 (c), 63 Purdon Statutes Section 432 (c). It is the position of the defendant that since the mortgage extension consummated differed in its terms from the provisions of the letter of authority, the plaintiff is thrown upon an alleged oral authority to proceed with the extension agreement and hence is barred from recovery: Verona v. Schenley Farms Co., 312 Pa. 57
(1933). *Page 526
A reference to the opinion in the Verona case, supra, is enough to understand the reasons which motivated the enactment of the Real Estate Broker's License Act and the legislative history which preceded it. It is admitted, by the pleadings, that the plaintiff herein was not a licensed real estate broker or salesman, but, it is asserted, that by reason of the exception provided in Section 2 (c) of the Act, he is not barred from recovery. That section provides:
"(c) Neither of the said terms 'real estate broker' or 'real estate salesman' shall be held to include within the meaning of this act any person, firm, association, partnership or corporation who, as owner, shall perform any of the acts with reference to property owned by them, nor any person holding in good faith a duly executed letter of attorney from the actual owner of any real estate, authorizing the sale, conveyance or leasing of such real estate for and in the name of such owner, or the negotiating of any loan thereon, * * *."
The amendment to this section, adding the requirement of recordation of the letter of attorney (See 63 Purdon Statute Sec. 432 (c)), being subsequent to the letter of authority herein construed, does not affect our disposition.
We believe the answer to this question is clear. The plaintiff acted pursuant to a duly executed letter of attorney. The suggestion that the transaction consummated differed substantially from the written authority is wholly without merit at this stage of the proceeding. True it is that the letter given did not cover the details of the transaction. It is well to note, however, that as to such details, the letter of authority is silent, rather than contradictory. Bearing in mind the evil sought to be averted by the enactment of the statute, we do not believe it was ever intended by the legislature that the authority be all inclusive in detail, as suggested by the defendant. The letter authorized the plaintiff to "act as agent to secure a first mortgage of $550,000.00." This he *Page 527
did, with such terms and conditions appended thereto as were acceptable to the defendant. No more is required to comply with the provision of the Act, else the exception permitted thereunder to afford protection to one who acts in an isolated transaction would be nullified completely. One objective sought to be averted by the legislative requirement, namely, to prevent multifarious claims based on allegations of oral agreements in real estate transactions, would, by any other construction of this Act, be turned to reach a wholly unconscionable result.
In Verona v. Schenley Farms Co., 312 Pa. 57 (1933), the authority alleged was oral and the action fell clearly within the prohibition of the statute. We have examined the paper books in Freeman v. Foster, 121 Pa. Sup. 595 (1936), and find that the only writing therein, far from being "a duly executed letter of attorney" to the plaintiff was an option to purchase, clearly insufficient.
Having passed the question of whether or not the plaintiff may bring this suit, all other questions such as the nature of his agreement or agreements with the defendant, and the quantum of performance are matters of proof upon the trial of this issue.
The other objections raised by the Rule are likewise dismissed.
Order entered dismissing rule for judgment for want of a sufficient reply to new matter. Defendant appealed.
The order is affirmed on the opinion of Judge ALESSANDRONI of the court below. Costs of this appeal to be paid by appellant. *Page 528 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4244606/ | AMERICAN HONDA MOTOR CO. v. THYGESEN
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AMERICAN HONDA MOTOR CO. v. THYGESEN2018 OK 14Case Number: 116394Decided: 02/13/2018THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2018 OK 14, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
AMERICAN HONDA MOTOR COMPANY INC., a foreign corporation, Petitioner,
v.
THE HONORABLE NORMAN THYGESEN, Respondent.
APPLICATION TO ASSUME ORIGINAL JURISDICTION AND
PETITION FOR WRIT OF PROHIBITION OR MANDAMUS
¶0 Petitioner is an automobile manufacturer and is the defendant in a manufacturer's- product-liability action in which the Respondent is the presiding judge. Respondent sanctioned Petitioner for its inability to supply the plaintiff in the underlying action with certain electronic data that pertained to the design process of the vehicle at issue, data that Petitioner asserts was lost pursuant to its data-retention policy. Petitioner now seeks the intervention of this Court, claiming that the Respondent's sanction order was not authorized by law. We hold that under the circumstances, 12 O.S.2011 § 3237(G) prohibits the trial court from entering sanctions against Petitioner.
ORIGINAL JURISDICTION ASSUMED; WRIT OF PROHIBITION GRANTED
Bart Jay Robey and Eric A. Moen, Chubbuck, Duncan & Robey, P.C., Oklahoma City, Oklahoma, for Petitioner.
James G. Wilcoxen, Wilcoxen & Wilcoxen, and Jeff Potts, Jeff Potts Law Office, Muskogee, Oklahoma, for Real Party in Interest, Harold G. Hayward, Jr.
Wyrick, J.:
¶1 The district court in this case sanctioned Honda Motor Company for "destroying evidence." The evidence--a computer program that Honda uses when designing new models of its vehicles1--had been deleted pursuant to a routine document-retention policy some 12 years prior to the accident that sparked this litigation.2 The Plaintiff in the case wants the computer program so that his expert can use it to attempt to demonstrate that Honda could have designed a safer car. The computer program is expensive--between two and three million dollars according to Plaintiff--so he understandably wanted to get it from Honda rather than pay to recreate it. As punishment for Honda's inability to produce the program, the district court issued an order directing that an "adverse inference" jury instruction be given at trial, i.e., an instruction telling the jury that it can infer that the computer program would be adverse to Honda's defense. This was a clear abuse of the trial court's discretion to issue such sanctions.3 We accordingly assume original jurisdiction and issue a writ of prohibition preventing the Respondent, Hon. Norman Thygesen, or any other assigned judge, from enforcing the August 9, 2017, sanctions order.
¶2 The sanctions order was a clear abuse of discretion because it failed to account for 12 O.S.2011 § 3237(G), which prohibits sanctions in circumstances like these unless there is a finding of "exceptional circumstances":
ELECTRONICALLY STORED INFORMATION. Absent exceptional circumstances, a court may not impose sanctions on a party for failure to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Section 3237(G) applies because there is nothing in the record to indicate that the deletion of the program was the result of something other than the routine operation of Honda's information-retention system. Nor is there anything in the record to demonstrate Honda was operating its retention policy in bad faith when it deleted the program some 12 years prior to the commencement of litigation.
¶3 To be sure, this "safe harbor" provision doesn't protect a party who fails to "implement[] a sufficient litigation hold once a lawsuit is filed or becomes likely"4--that's the very sort of bad-faith operation for which a sanction would be permitted. But there is nothing on this record to suggest that Honda was required to halt the normal course of its retention policy in 2003 in anticipation of litigation that didn't commence until 2015--no decision from this Court has ever recognized a duty to preserve data in anticipation of litigation that might happen 12 years in the future. And to recognize such a duty would essentially require Honda to retain all electronically stored information relating to the design of the 2006 Accord for as long as one of those cars might still be on the roads. Such a broad and long-running duty would be antithetical to the design of section 3237(G), which plainly recognizes the need of individuals and entities not to be burdened by legal obligations to retain their electronically stored information in perpetuity.
¶4 Thus, because Honda was under no legal obligation to retain the computer program at the time it was deleted, and its deletion was pursuant to the routine, good-faith operation of Honda's document-retention system, Honda falls within section 3237(G)'s safe harbor. Only some "exceptional circumstances" would therefore permit sanctions, none of which was found by the district court. Accordingly, the district court's sanctions order was not authorized by law.
¶5 For these reasons, we assume original jurisdiction, and issue a writ of prohibition preventing the Respondent, Hon. Norman Thygesen, or any other assigned judge, from enforcing the August 9, 2017, sanctions order.
Combs, C.J., Gurich, V.C.J., and Kauger, Winchester, Edmondson, Reif, and Wyrick, JJ., concur.
Colbert, J., dissents
FOOTNOTES
1 The particular data Plaintiff desires is called Finite Element Modeling (FEM), which is the result of a process by which engineers convert the physical details of a car into mathematical equations for purposes of testing. The design details of the car are broken down into "elements," and each element is then reduced to a series of equations. It can take an entire day to model just one element of a car's design, and there can be as many as a million elements to a single car. Once an element is modeled, analysts can then isolate or group the element with others to test for things like how the element will react to a particular impact. This process allows manufacturers to test crashworthiness without having to physically build and crash a car.
2 The accident in this case took place in August of 2015. The vehicle at issue was a seventh-generation Honda Accord, the U.S. production of which lasted from 2003 to 2007. The FEM data Plaintiff seeks was created during the design phase of the vehicle between 2000 and 2002. According to Honda, this data was discarded by 2003 pursuant to its document-retention policy. Indeed, Plaintiffs conceded at the hearing before the district court that the relevant data was destroyed before the vehicle was released for public consumption, Tr. of Hr'g on Pl.'s Mot. to Compel, App'x at 284, which demonstrates that the loss occurred not only well before this litigation was imminent, but also before any such litigation could have been pending.
3 See Exxon Co., U.S.A. v. Dist. Ct. of Kingfisher Cty., Fourth Judicial Dist., 1977 OK 231, ¶ 6, 571 P.2d 1228, 1230; Warren v. Myers, 1976 OK 118, ¶¶ 20, 22, 554 P.2d 1171, 1174 ("[T]he extraordinary writs of mandamus and prohibition may be resorted to only in cases where the trial court lacks jurisdiction or has clearly abused judicial discretion in its orders controlling pre-trial discovery. . . . [M]andamus or prohibition to require or prohibit the trial court from enforcement of an order regarding the answering of interrogatories will only be entertained by this Court if the trial court is either without jurisdiction or has clearly exceeded the bounds of judicial discretion").
4 Steven S. Gensler, Oklahoma's New E-Discovery Rules, 81 Okla. B.J., no. 29, at 2427, 2433 (Nov. 6, 2010), available at http://www.okbar.org/members/BarJournal/archive2010/ NovArchive10/obj8129Gensler.aspx.
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1976 OK 118, 554 P.2d 1171, WARREN v. MYERSDiscussed
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https://www.courtlistener.com/api/rest/v3/opinions/3859281/ | Argued March 8, 1938.
This is an appeal by plaintiff from the refusal of the court below to take off a compulsory nonsuit entered in an action of assumpsit by plaintiff against the executors of the last will and testament of Alice Cole, deceased. If plaintiff established a prima facie case, the nonsuit must be set aside. In considering plaintiff's evidence we must assume it to be true, and give plaintiff the benefit of all inferences fairly deducible therefrom, and resolve all doubts in favor of a trial. Allen *Page 13 v. Mitten Bank Securities Corporation, 129 Pa. Super. 341,195 A. 459; Donze et al. v. Devlin, 329 Pa. 1, 195 A. 882.
Plaintiff's action was instituted to recover for work and labor performed for deceased in the construction of a barn on her farm. The work was done by plaintiff between March, 1931, and April, 1933. The foundation and the superstructure were built by plaintiff, with exception of certain work which was performed by others. The barn was constructed out of second-hand lumber which was obtained from another building and transported by plaintiff. Deceased lived more than a year after the erection of the barn by plaintiff, and repeatedly stated that she was going to "make it right" with him. Deceased also stated that, plaintiff having built the barn, she was going to pay him; that she was waiting for the money she had in a closed bank to settle things with plaintiff.
Although there was testimony that the labor cost for such a barn as that erected by plaintiff was approximately $300, the evidence did not disclose the value of the labor performed by others.
There was offered and admitted in evidence copy of the last will and testament of Alice Cole, paragraph 5 of which was as follows: "Fifth: I give and bequeath to James Westcott, the sum of One Hundred (100) Dollars, in payment of labor building barn." The will was executed on April 25, 1934. Deceased died on May 28, 1934.
Plaintiff established a prima facie case, and the non-suit was improper. Plaintiff erected the barn, with certain additional assistance; deceased recognized plaintiff as the builder of the barn; and deceased acknowledged her indebtedness to him, at least to the extent of $100 in payment of his labor. The relationship of debtor and creditor was established between the parties, and, for the services shown to have been performed, *Page 14
plaintiff was entitled to recover no less than the amount that deceased directed in her will that plaintiff should receive "in payment of labor building barn."
The photographs which plaintiff offered in evidence were properly excluded by the trial judge on the state of the record at the time they were offered.
The first and third assignments of error are sustained.
Judgment is reversed with a venire. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3851938/ | Plaintiff brought this action in trespass to recover damages for injuries sustained when he was jolted from the tailboard of a truck owned and operated by defendant. The jury having returned a verdict in plaintiff's favor, defendant took this appeal from the judgment entered thereon, assigning as error, inter alia, the refusal of the learned court below to grant his motion for judgment n. o. v.
According to plaintiff's evidence, which is taken as true and viewed in the light most favorable to him, on September 17, 1939, he attended a picnic given by a *Page 358
lodge of which he and defendant were members, in a grove five miles from Bristol, in Bucks County, Pennsylvania, where they resided. At about seven o'clock that evening, plaintiff assisted in loading tables, trestles, and empty tubs and crates onto defendant's Chevrolet truck, a vehicle with closed cab and open body whose sides were a foot and half high. It had an eighteen-inch-wide hinged tailboard which was held in a horizontal position by chains at each end extending at a forty-five degree angle to the sides of the truck. When the loading was completed, defendant said to plaintiff and two others: "Come on, fellows, I will take you home." Although there was room in the cab for only three persons, the body of the truck contained ample vacant space — four or five feet — to accommodate more. Plaintiff, however, seated himself on the tailboard facing backward with his legs dangling. Defendant took the driver's seat, the other two passengers sat beside him in the cab, and they proceeded homeward at a speed of from forty to fifty miles an hour. When they had almost reached their destination in Bristol, and as the truck was being driven over the crest of a bridge and was "just about the manhole" which protruded two or two and a half inches above the surface of the street, plaintiff felt a severe jolt and was thrown from the truck, sustaining serious injuries.
Upon this evidence defendant is charged with negligence in that with knowledge of plaintiff's position on the truck and the dangers incident thereto he drove at an excessive speed over the raised manhole which he should have seen. While there is some question in our minds as to whether or not plaintiff proved this allegation of negligence, we shall not pass upon it, but assume that the jury was justified in finding defendant negligent and turn to the question of plaintiff's contributory negligence. The rule is well settled in this Commonwealth that where a person chooses a place of danger in preference to one of comparative safety, and by reason of his position is injured, his own act in placing himself *Page 359
in such dangerous position amounts to an assumption of the risk and he cannot recover even though another contributes to his injury through negligence. Hence, a passenger who rides on the running board of an automobile and is injured through the fault of the driver is, in a suit against the driver, guilty of contributory negligence as a matter of law: Srednick v. Sylak,343 Pa. 486; Valente v. Lindner, 340 Pa. 508; Schomaker v.Havey, 291 Pa. 30. The same principle was applied to one who elected to ride on the open platform of a truck in preference to sitting in the cab: Zavodnick v. A. Rose Son, 297 Pa. 86,91. The parallel to the instant case is manifest. The movable tailboard of the open truck, with its tendency at every bump, however slight, to throw the person seated thereon into the air and go out from under him, was obviously not a safe place on which to ride. If plaintiff had sat in the body of the truck, where, according to his own testimony, there was "plenty of room" "right around where I was at", and grasped its fixed sides, rather than the bouncing tailboard and flexible chain, he would not have fallen off. Plaintiff's action in riding on the unsteady tailboard was, in view of the obviousness of the risk and the ease with which it could have been avoided, an act of negligence concerning which reasonable men can have no difference of opinion.
Plaintiff contends, however, that he was not bound to anticipate defendant's negligence in driving at a rate of speed dangerous to plaintiff riding in the position where defendant knew he was and which defendant knew was attended by risks. In support of this contention plaintiff cites McFadden v. PennzoilCo., 341 Pa. 433, in which we held that plaintiff, though he had ridden in the body of a truck rather than upon the driver's seat, was entitled to assume that the driver, who had stopped and signalled to plaintiff to alight, would not, as he was doing so, negligently back up without warning and run over him. It is at once apparent that in that case plaintiff's negligence in riding in the body of the truck in no way contributed to his injury. In the case now before us, on *Page 360
the contrary, plaintiff's act of riding on the tailboard directly contributed to his injury. It is beyond dispute that one who rides on a tailboard is in danger of falling off, and for this reason such a person must be held guilty of contributory negligence as a matter of law if he does fall off. If, however, he were hit by another car running into him from behind, and sued the owner thereof, his own contributory negligence would be for the jury, because it is not clear beyond doubt that one who rides on a tailboard will be run into by another vehicle. This is the same distinction as that which we have made in the case of a passenger riding on the running board of an automobile: in a suit against the owner, he is barred by contributory negligence as a matter of law, but as against a third person, his alleged contributory negligence is for the jury: Srednick v. Sylak, supra, and cases there cited at page 489.
After a careful study of the record, and giving plaintiff the benefit of every fact and inference properly deducible therefrom, we are convinced that the court below erred in refusing defendant's motion for judgment n. o. v. This disposition renders it unnecessary to discuss the remaining assignments of error.
Judgment reversed and here entered for defendant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3859289/ | Argued May 5, 1937.
This is an appeal from the decree of the learned court below sustaining certain exceptions to an account of the trustee of a mortgage pool. *Page 555
J. Walter Snoke executed and delivered to the Peoples Trust Company of Annville a bond and mortgage, dated September 4, 1924, in the sum of $4,500, with interest at 6%. On December 1, 1925, the trust company sold and transferred to Leah B. Stauffer, $3,000 of this mortgage, "with all the rights, remedies, incidents and appurtenances thereto belonging . . . . . . TOGETHER with the bond or obligation in said Indenture of Mortgage," and, in consideration of 1% per annum of the principal, to be deducted from the interest, guaranteed the repayment of the principal, with interest at 5%, and agreed to collect the interest. It was stipulated also that the trust company, for the purpose of facilitating the collection of the debt and interest, would retain possession of the bond and mortgage and note the assignment thereof.
The trust company subsequently set up mortgage pools and transferred to pool "C", containing securities in which others had a beneficial interest, its remaining share of $1,500 in the mortgage. On December 15, 1931, the trust company closed its doors and the Secretary of Banking took possession. On petition of the Secretary, the court below, on February 19, 1934, appointed Harry M. Bowman substituted trustee of this mortgage pool. Snoke, the mortgagor, on January 17, 1936, paid him the principal of $4,500 and interest. Bowman filed an account of his trusteeship of the pool, in which he charged himself with monies collected, including the amount he received in payment of the Snoke mortgage. In the schedule of distribution attached to his account, there was allocated to Mrs. Stauffer the sum of $3,233.50 which represented her full portion of the mortgage principal and interest, but she was charged with $269.83, her alleged proportionate share of the expenses incurred in the administration of the pool.
The only exceptions filed to the account were by Mrs. Stauffer. Those relating to the deduction of the $269.83 *Page 556
were sustained by the learned court below. It is of this action the appellant complains.
The trust company had no authority to place in the pool property which its own books disclosed had been specifically assigned to Mrs. Stauffer and had belonged to her since December 1, 1925. That was prior to the formation of the pool, and the testimony clearly established that the trustee knew of her ownership. Her share of the mortgage was never part of the pool, nor was it an asset of the bank when it ceased to function — and cannot be so treated. There is no proof that any certificate was issued to her evidencing the fact that she had the right to participate in the proceeds of the pool. Its administration therefore was none of her concern. No expenses were incurred in the collection of the Snoke mortgage and Mrs. Stauffer, as a co-owner thereof, could not be saddled with any costs or expenses in the liquidation of this pool in which she had no financial interest; nor could her vested ownership of the security, evidenced by a valid assignment, be affected by the insolvency of the trust company. True, she did not record the transfer of part
of the mortgage and bond, but that did not affect her acquired rights. Recording is not essential if interested parties are not prejudiced by failure so to do.
Hancock's Appeal, 34 Pa. 155; Hodge's Appeal, 84 Pa. 359;Appeals of Fourth National Bank et al., 123 Pa. 473, 16 A. 779, and the other authorities relied upon by appellant, are not in point, as in those cases there were forced sales of property and less was realized therefrom than was required to liquidate the indebtedness. Here, no question of a pro rata distribution or priority rights of creditors are involved, as in those cases, for the entire debt due the owners of this mortgage was paid.
The solution of the problem before us does not depend primarily on a breach of the clause in the agreement *Page 557
that the trust company would guarantee the repayment of the mortgage. As we have already observed, the indebtedness was paid in full, the trustee has accounted therefor and is ready to pay, subject to the credit claimed. Mrs. Stauffer's status as a co-owner of the mortgage was fixed prior to the time the Secretary of Banking took possession of the trust company. We can see no equitable or legal reason to divert money due her to the payment of any part of the costs and expenses of the administration or liquidation of this pool. She, individually, owned two-thirds of the mortgage; it has been paid to her agent, and she is entitled to all the proceeds, less only commission she agreed to pay.
The decree of the lower court is affirmed, at appellant's costs. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/155424/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ANTHONY R. HAMILL,
Petitioner-Appellant,
v. No. 96-8086
(D.C. No. 95-CV-093-J)
WYOMING DEPARTMENT OF (D. Wyo.)
CORRECTIONS STATE
PENITENTIARY WARDEN, in his
official capacity; WYOMING
ATTORNEY GENERAL, in his
official capacity,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA, MCKAY, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Petitioner Anthony R. Hamill, a Wyoming state prisoner proceeding pro se,
filed a habeas corpus petition under 28 U.S.C. § 2254, seeking relief from a
parole revocation proceeding. The district court dismissed his petition on the
merits 1 and denied petitioner a certificate of appealability. This appeal followed.
In this court, petitioner has again applied for a certificate of appealability.
Our recent decision in United States v. Kunzman, ___ F.3d ___, No. 96-1310,
1997 WL 602507, at *1 n.2 (10th Cir. Oct. 1, 1997), makes it clear now that to
take an appeal in this circuit in a habeas case like this one, where the petition
was filed before the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,
1996), it is a pre-AEDPA certificate of probable cause that is required, rather
than an AEDPA certificate of appealability. Regardless of the label, however,
petitioner’s substantive burden is the same. Both certificates require that
petitioner make a substantial showing of the denial of a constitutional right.
1
In so doing, the district court rejected the magistrate’s recommendation
that the petition be dismissed on the ground of state procedural default. The
issue of a possible procedural default has not been raised on appeal and we do
not address it.
-2-
Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746
(1997), overruled in part by Lindh v. Murphy, 117 S. Ct. 2059, 2061 (1997).
Petitioner contends that he was deprived of due process during the course
of his parole revocation proceeding. On appeal, he argues three alleged due
process violations: 2 (1) excessive delay between his detention for suspected
parole violations and the preliminary or “probable cause” hearing; (2) the
presence of a non-neutral party during the state parole board’s deliberations
following his revocation hearing; and (3) the failure of the parole board to state
the evidence relied upon in revoking his parole. The district court rejected these
claims (and the others before it), and concluded that petitioner’s parole revocation
proceedings were “constitutionally adequate.” R., tab 13 at 26. The district court
also found that petitioner had failed to demonstrate he suffered prejudice as a
result of any of the alleged constitutional violations. See id. at 29.
Petitioner’s first due process argument focuses on the delay between his
detention by authorities for suspected parole violations and his probable cause
2
Both petitioner’s application for certificate of appealability and his opening
brief clearly identify as issues on appeal only three of the six issues he raised in
district court. We consider these the issues for decision, notwithstanding
respondents’ answer brief, which inexplicably addresses all six issues and
presumably gave rise to petitioner’s reply brief, which does the same. See
Coleman v. B-G Maintenance Management of Colo., Inc., 108 F.3d 1199, 1205
(10th Cir. 1997) (issues not raised in the opening brief are deemed abandoned or
waived).
-3-
hearing. Petitioner was taken into custody on June 30, 1994, and his preliminary
hearing did not occur until August 11, 1994, forty-two days later. Mere delay,
however, even if assumed to be excessive, does not necessarily constitute a due
process violation entitling petitioner to immediate release. McNeal v. United
States, 553 F.2d 66, 68 (10th Cir. 1977). Instead, “to establish a legal right to
habeas relief, the delay, taking into consideration all the circumstances, must
also be prejudicial.” Id.; see also Harris v. Day, 649 F.2d 755, 761-62 (10th Cir.
1981). Petitioner does not allege any prejudice as a result of the delay between
his detention and his preliminary hearing. 3
Petitioner also claims that he was denied the required “neutral and
detached hearing body,” Morrissey v. Brewer, 408 U.S. 471, 489 (1972)
(quotation omitted), by the presence during the parole board’s deliberations of the
corrections official who initiated petitioner’s revocation proceeding and presented
3
Citing the admonition in Morrissey v. Brewer, 408 U.S. 471, 485 (1972),
that the preliminary or probable cause hearing be held “as promptly as convenient
after arrest while information is fresh and sources are available,” petitioner does
note in his brief that “[e]ven the adverse witness that was asked to appear failed
to show,” Appellant’s Opening Brief at 4. However, petitioner cites nothing in
the record to indicate that the witness’ absence was a result of the delay. See
Gaddy v. Michael, 519 F.2d 669, 678 (4th Cir. 1975) (if parolee seeks to claim
prejudice by reason of loss of evidence or unavailability of witnesses, “he is
obligated to show what evidence and what witnesses he would have presented
at a timely hearing which were unavailable to him because of the delay and,
absent such a showing, he may not claim prejudice in this particular” (quotation
omitted)).
-4-
the state’s case for revocation. We disagree. Petitioner does not allege that the
official participated in the board’s deliberations, cf. Shepard v. Taylor,
433 F.Supp. 984, 986 (S.D.N.Y.), aff’d mem., 573 F.2d 1295 (2d Cir. 1977)
(due process violated where one of the two hearing examiners was the official
who recommended and obtained the parole violation warrant application), and
indeed the record includes an affidavit (which petitioner does not challenge)
indicating that the official said nothing during the deliberations, see R., tab 6,
exh. H at 2. The board’s action in simply allowing the corrections official to
remain in the room during its deliberations while asking petitioner to leave
does not, in and of itself, absent any showing of actual bias or prejudice, support
a conclusion that the board was less than neutral and detached.
Finally, petitioner argues that his due process rights were violated because
the parole board’s revocation order does not set forth the evidence upon which the
board relied in revoking his parole as required by Morrissey, 408 U.S. at 489.
Again, we disagree. We note that the order in this case does not consist entirely
of boilerplate language that sheds no light on the basis for revocation, but
contains specific findings as to what conduct charged was proven at the hearing
by substantial evidence. Petitioner has not challenged the sufficiency of the
evidence to support those findings. Under these circumstances, we cannot say
that petitioner’s due process rights have been violated.
-5-
We conclude that petitioner has failed to make a substantial showing of the
denial of a constitutional right, and thus we DENY petitioner a certificate of
probable cause and DISMISS the appeal. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-6- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3858443/ | Argued April 12, 1934.
Appellant filed a petition for review upon which, after hearing, the referee awarded compensation for partial disability and which was affirmed by the compensation board. On appeal to the common pleas the award was set aside and claimant's petition for review dismissed.
An agreement, dated March 17, 1932, was entered into between claimant and his employer and insurance carrier, providing for compensation at $1500 per week from March 1, 1932, for fifteen weeks, in which agreement the accident and injury is described as follows: "Hooking a well on with a chain. Chain slipped smashing index and middle fingers left hand. Amputation of first phalange of second finger left hand." On June 16, 1932, a supplemental agreement was entered into setting forth that the status of the claimant changed June 14, 1932 as follows: "Middle finger of left hand amputated back to metacarpal phalangeal joint, on June 7, 1932. It was necessary to remove the entire finger, in order to have any use of the other *Page 377
three." This agreement provided for an additional period of fifteen weeks at the same rate. Payments were made under this agreement and the last payment was made on September 26, 1932, at which time a final receipt was executed by the claimant.
On December 12, 1932, claimant filed his petition for review on the ground of mistake, alleging, inter alia, as follows: "I believed that my total disability was the loss of my second finger whereas I now know that my total disability is at least 50% loss of the use of my left hand." Defendant filed an answer denying liabilty and the matter proceeded to a hearing.
The referee found, inter alia, the following facts: That the petitioner herein petitions for partial disability, alleging 50% loss of the use of his left hand; that due to infection there is stiffness in the joints of the remaining fingers of the injured hand which interferes with the grasping power of the hand, and that this disability is equal to 25% loss in earning power.
Claimant testified as follows (p. 12a): "Q. The condition of your hand now is the same as when you signed the final receipt? A. I can not see that it is any better. Q. Is it any worse or just the same? A. No, it is not any worse." The remaining portion of his testimony consisted largely of a description of his injuries and of his efforts to use his hand but nowhere does it appear that any mistake was made in reference to the execution of the agreement; in fact, the record is barren as to circumstances under which it was signed.
Claimant's physician testified that the condition of the hand was due to the injuries to the finger and the infection which affected the nerves and tendons of the hand. Appellant complains that the court erred in concluding that the infection must have been subsequent to the amputation of the finger. Whether this finding was correct or not is immaterial, as the vital *Page 378
question is, was the final receipt signed under a mistake of law or of fact.
It is conceded by appellant that if the petition was based upon conditions developing after the execution of the agreement, it would be barred by Section 413 of the Act of 1915, P.L. 736, as amended by Section 6 of the Act of April 13, 1927, P.L. 186 (77 PS 772), but contends that the agreement was based upon a mistake of fact existing at the time of its execution.
A final receipt having been executed, relief could only be secured under Section 434 of the Act of 1915 as amended by the Act of 1919, P.L. 642, (77 PS 1001). The form of the petition used refers to Section 413 but the relief sought was the setting aside of the final receipt under Section 434. We have repeatedly held that it makes no real difference under which section a petition may have been filed, provided proper ground for action by the compensation authorities under either be proved. An examination of the testimony shows that claimant did not attempt to prove that any mistake had been made at the time of the execution of the original agreement nor did the referee make any finding that the agreement had been founded upon a mistake of law or fact.
Undoubtedly, the claimant is suffering from more disability than was covered by the supplemental agreement but he executed it, received the compensation it provided for and, upon receipt of a check for the final payment, signed the final receipt. Section 434 requires that in order to set aside a final receipt it must be proved that such receipt was procured by fraud, coercion or other improper conduct of a party or is founded upon a mistake of law or of fact and the burden of proof is on claimant to establish his right to have a final receipt set aside by evidence reasonably satisfactory that a mistake has been made: Shuler v. Mid Valley Coal Co., 296 Pa. 503, *Page 379 146 A. 146; Bukovac v. Eastern Coke Co., 109 Pa. Super. 235,167 A. 658. In view of the fact that the testimony does not establish that a mistake actually existed, coupled with the further fact that the referee failed to find that any mistake actually did occur, we believe the lower court was correct in setting aside the award.
Appellant further contends that the court below should have, instead of dismissing the claimant's petition for review, referred back the proceedings to the compensation authorities for further findings, and relies upon the Act of June 26, 1919, P.L. 642 (77 PS 879), which provides: "If such court (common pleas) shall sustain the appellant's exceptions to a finding or findings of fact and reverse the action of the board founded thereon, the court shall remit the record to the board for further hearing and determination." This act has been passed upon by our courts on several occasions, the last case being Telario v. Jefferson
Indiana Coal Co., 105 Pa. Super. 305, 161 A. 486, in which opinion reference is made to other cases dealing with the act. However, we do not find this act applicable for the reason that the court of common pleas did not sustain the appellant's exceptions to a finding or findings of fact but found from the record that there was no finding of fact by the referee or the board that a mistake existed at the time of the execution of the final receipt; that as a matter of fact, the evidence did not establish that a mistake existed, and found as a conclusion of law that claimant was not entitled to have the final receipt set aside. We believe the act in question to be applicable only within the plain language of the statute, to wit, when the appellant's exceptions are sustained to a finding or findings of fact of the referee or the board.
Judgment affirmed. *Page 380 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3862602/ | Argued May 5, 1930.
The appellant maintains a produce yard containing thirteen tracks in the City of Pittsburgh. These tracks are in pairs with a space of about 24 feet on either side of each pair for vehicles to drive east and west for the purpose of loading and unloading cars. There is a crossing, 30 feet wide, running north and south over these tracks. A large amount of business is transacted daily in this yard as the produce is sold and delivered where the cars are spotted.
It appears under the plaintiffs' testimony that about 4:30 in the afternoon of March 12, 1928, the A.B. Produce Company's truck, driven by Charles Reed and on which the minor plaintiff was riding as a helper, entered the yard at 18th Street with a partial load of produce to be put in the car standing on track No. 1. The truck, proceeding at the rate of 15 miles per hour, crossed several tracks on the way to its destination. As it was crossing track No. 10, at a distance of about 5 feet to the left of a draft of cars which were standing flush with the crossing, the cars were moved, without warning, and collided with the truck, pushing it to the opposite side of the crossing and injuring the occupants and damaging the truck. *Page 66
This action was brought to recover damages for the injuries sustained by the helper as the result of the alleged negligence of the defendant company, and verdicts were rendered in favor of the plaintiffs, which the court refused to disturb.
The appellant contends (1) that there could be no recovery as the injured plaintiff had no right to be in the yard at the time of the accident, and (2) that he was guilty of contributory negligence.
It is true, as maintained by the appellant, that there was no proof of any contractual right with or express permission from the appellant company to put the produce in the car and that most of the business of buying, selling, delivering, and transferring produce ended at 2:00 P.M. But from the evidence offered upon the part of the plaintiffs, the yard was open and the crossing was used by vehicles delivering produce from one car to another and for other purposes until 5:00 o'clock. The yard master called upon the part of the defendant admitted that the trucks remained in the yard until that time. The driver and his helper had, under the circumstances, the right to feel confident that the appellant would discharge its duty by exercising a reasonable care and give adequate warning of train movements. With the amount of traffic on this crossing, there was reason for apprehending the use of the tracks by others and precaution was a necessary duty of the appellant in the moving of its cars.
The appellant maintains that under the authority of Gillis v. P.R.R. Co., 59 Pa. 129, it was liable only for a wanton or an intentional injury. The injured person was an employe of a produce merchant and had, in his possession, the key of the freight car in which the produce was to be shipped. He was using the crossing, not as a stranger or an intruder, but under an implied invitation from the appellant. As the lower court well said, "It would seem unreasonable *Page 67
to hold that the plaintiff was bound, before entering the yard, to verify from the defendant that the owner of the produce actually had contracted for its shipment or that failing to make such inquiry, it (Produce Company) must be treated as a trespasser." As the injured plaintiff had the privilege to be in the yards, it follows that the failure of the appellant's employes to exercise a reasonable care to avoid the collision was negligence: Kay v. P.R.R., 65 Pa. 269; Curtis v. DeCoursey,176 Pa. 446; Robb v. Niles-Bement-Pond Co., 269 Pa. 298; John v. Reick-McJunkin Dairy Co., 281 Pa. 543.
This brings us to the question of the alleged contributory negligence of the helper and driver in failing to "stop, look and listen" before entering on track No. 10. They testified that the truck was stopped at the corner of 18th and Pike Streets about 5 feet from the entrance to the yards, just before entering track No. 14, and where they had a clear vision across the intervening tracks to track No. 1. There were no cars on track No. 14, but on tracks 13, 12, 11 and 10 cars were standing on either side of the driveway. The appellant contends that the driver of the truck should have stopped between tracks 11 and 10 where there was a 24-foot space. They were driving a large 2 1/2 ton truck and although the driver was unable to give its length, it probably would have required most of that space to accommodate it. Stopping at that point would not have given information to the driver that an engine was attached to this draft of nine cars on No. 10 track as the tracks curved to the left and his vision was limited to about four cars. The driver and helper having stopped, looked and listened before committing themselves to the crossings were not required, under the conditions that prevailed, to stop before crossing each of the successive tracks unless there was reasonable apprehension that there would be a movement of cars. It is a well known fact *Page 68
that cars placed upon the siding in railroad yards remain there for hours, and the mere presence of the cars would not of itself indicate their movement. If it is the duty of a driver of a truck crossing a series of tracks, where there is traffic, to stop before entering each track, those following in the rear might be placed in a hazardous position as, for instance, in this case, there is only a 5-foot clearance between the pairs of tracks. This requirement would not only be impracticable, but dangerous. Mr. Justice KEPHART, in Frank v. Reading R.R.,297 Pa. 233, said that this is a situation which should not be worked out through a trial judge but rather left to the jury to determine whether care was exercised under the circumstances. This is not a case of stopping where there is a limited vision before crossing a siding and an intervening space before reaching the main tracks, where one can safely stop and look for an approaching train, as in Siegel v. N.Y.C.R.R., 67 Pa. Super. 307, but comes under the rule that where stopping after the tracks have been entered upon might be more dangerous than proceeding, one ought to get over the tracks as rapidly as conditions warrant. See Frank v. Reading R.R., supra; Barthelmas v. L.S. M.S. Ry Co., 225 Pa. 597; Razzis v. P.
R. Ry. Co., 273 Pa. 550; Thomas v. P.R.R., 275 Pa. 579.
Judgments are affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3859296/ | Argued November 10, 1931.
These appeals by defendant are from judgments entered on verdicts rendered against him in actions for personal injuries sustained by two of the plaintiffs in a collision between the automobile in which they were riding and defendant's automobile. The cases were tried together, were argued together in this court, and may be disposed of in a single opinion. The only issue raised by counsel for defendant at the trial and before us is whether there was any evidence which warranted a finding by the jury that the relation of master and servant existed between defendant and the person in charge of his car at the time of the accident.
Defendant owned the automobile which was being operated by one Paige at the time of the accident. He was a member of the Automobile Club of Philadelphia, hereinafter called club, which operated a garage at *Page 375
23 So. 23rd Street, Philadelphia. For some time prior to September 12, 1928, the night of the accident, he had been using the club's service for "short parking." He paid the regular charge of 35 cents for the storage and an additional regular charge of 25 cents for furnishing him with a man whose duty it was to accompany him to his destination and then return the car to the garage. The superintendent of the garage, called as a witness by plaintiffs, in describing the terms upon which service was rendered to defendant and all other members of the club, stated: "If you came there to go down to the theatre, or something of that kind, there was a charge made of 35 cents, and also a charge made if the car was brought back and forth from the city. ...... On a delivery or bringing in of a car, if the member of the club wanted to stop and pick a man up to bring the car back from town there would be a charge of 25 cents made for that, and also if the car was returned, was brought down again another charge of 25 cents in addition to the storage. ...... Q. In other words, the man was furnished by the Automobile Club? A. Right. ...... Q. Prior to September 12, 1928, had Mr. Allen at any time had occasion to use any of the men employed by the Automobile Club? A. Yes, he had. Q. Tell us what, under what circumstances? A. Well, either delivery or bringing in of his car, he would take the man down to the center of the city and the man brought the car back. Q. When that was done, did Mr. Allen pay the man directly or did he pay the garage? A. A bill was sent out at the end of the month, his monthly bill, and that charge was made on that bill." It appeared further that a member of the club had a right to keep the chauffeur out as long as he wished on the basis of a charge of 75 cents per hour. There was no evidence that defendant ever used this kind of service. On the evening of the accident defendant drove his car to the garage *Page 376
of the club and requested the night foreman to furnish him with a man to take him to the theatre. Paige, one of the regular employees of the club, was selected by the foreman to accompany defendant. Paige got into the car and defendant drove it to the Walnut Street Theatre and then turned it over to Paige with the direction "to have the car there after the curtain." Paige stored the car in the garage and was driving it back to the theatre when the accident happened.
Defendant offered no testimony and submitted a point for binding instructions, which the court below declined. The only errors assigned are the refusal of defendant's point and the dismissal of his motion non obstante veredicto.
We think that the evidence did not warrant a finding that Paige was defendant's servant at the time plaintiffs were injured. The club agreed, for stipulated charges, not only to store defendant's car but also to furnish an employee to run it to the garage from the place at which defendant delivered it to its employee and to redeliver it to defendant at the place he requested delivery to be made. Under this arrangement the car was entirely under the control of the garage operator from the time it was delivered to the employee to be driven back to the garage until it was redelivered to defendant. While the employee was driving the car back and forth, in the absence of the owner, he was not the servant of the owner but of the club which employed him and paid him for his services. He was under the control of the latter and was subject to its orders and directions, and during that time the car was as much in the custody of the club as when it was stored in the garage. While the employee was taking the car from the garage to the theatre he was acting in furtherance of the business of his employer who was responsible for his acts. The principle controlling the case is well settled by many authorities, *Page 377
among which are Luckett v. Reighard, 248 Pa. 24, and Griesmer v. Netter, 273 Pa. 546, which, in our opinion, rule this case. In both of those cases the arrangement was that the proprietor of the garage was not only to store the car but also to call for and deliver it to the owner's residence. In each case the accident happened while the employee of the proprietor of the garage was taking the car from the owner's residence to the garage. It was held that the driver of the car was not in the employ of the owner, but of the owner of the garage, while it was being driven to the garage. The present case is not distinguishable from those cases on the ground that in both of them there was a definite agreement providing for the storage of the car and the driving of it back and forth between the owner's home and the garage at a monthly rate. Here, as there, the taking of the car back and forth was a part of the service contracted to be rendered by the operator of the garage. The difference in the form of the contract makes no difference. The master is the person in whose business an agent is engaged at the time, and who has the right to control and direct his conduct. Jimmo v. Frick, 255 Pa. 353, relied upon by counsel for appellee as ruling this case in his favor is radically different from it in its controlling facts. There the proprietor of the garage at which defendant stored his car furnished the owner with a driver at 75 cents an hour; the driver was acting as chauffeur for defendant, who was in the car and had the right to direct and control the driver's conduct, when the accident happened; and the garage proprietor had no authority to operate the car and did not do so. It was held that while the driver was in the general employment and pay of the garage proprietor, he was, at the time of the accident, the servant of the defendant on whose business he was driving the car and *Page 378
under whose direct control he was acting. Some stress was laid by counsel for appellee on the fact that under the arrangement between defendant and the club defendant could hire a chauffeur from the club at 75 cents per hour, and that when the chauffeur was acting in that capacity he was subject to the orders of the owner of the car. We deem it sufficient answer to this argument to state that Paige was not acting in any such capacity when the accident happened. In fact, as stated above, there is no evidence that defendant ever used one of the club's employees in that kind of service. Plaintiffs' attempt to prove that Paige was defendant's agent at the time of the accident failed. Our conclusion is that defendant's points for binding instructions or his motions for judgment non obstante veredicto should have been granted.
In each appeal, No. 59, October Term, 1931, and No. 60, October Term, 1931, the judgment is reversed, and here entered for defendant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3854576/ | Argued September 27, 1943.
This appeal is from a judgment entered by the learned court below against the defendants on the pleadings in an ejectment case.
John F. Boyle died testate December 3, 1940. He named in his will John F. Burgess as executor and trustee, and title to him passed thereunder to the premises in dispute known as No. 4136 Manayunk Avenue, Philadelphia. Defendants in their answer averred that they obtained possession of these premises in October 1933 from Boyle under a verbal lease providing for a rental of $50.00 per month, and that they would receive a credit for lodging and boarding Boyle, leaving a net cash balance due monthly of $15.34, and that this rental arrangement continued until Boyle's death.
Defendants averred also that the premises are not now being used entirely by them, a portion being vacant, that the part they occupy has a rental value of *Page 568
$15.00 per month and that they offered to pay plaintiff that amount which has been declined. Of course the defendants were not entitled to a credit for Boyle's lodging and boarding after his death. It is not alleged that they entered into a new lease, so that the only lease that remains in effect is the original one providing for payment of $50.00 per month which defendants do not contend has been paid. The defense that the lessees offered payment of the rent cannot prevail.
The second defense is that the plaintiff failed to comply with O.P.A. Regulations.
The defendants as tenants recognize that the legal title to the premises is in plaintiff, but claim the right of possession under the original lease until they can secure living quarters relying upon Maximum Rent Regulation No. 28, relating to restrictions of removal of tenants, as provided by part 1388.1806, 1942 Federal Register pages 4913, 4915; that plaintiff as required thereby should have notified the O.P.A. Office of the Philadelphia area of his instituting this action.
The regulations referred to provide in part that "So long as the tenant continues to pay rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations by action to evict, or to recover possession by exclusion from possession or otherwise."
It is apparent that the facts averred by defendants do not bring this case within the O.P.A. Regulations as the defendants failed to pay the rent in accordance with the lease so that notice was not required to the Federal Agency.1
The appellants argue also that the Plaintiff's Declaration *Page 569
was insufficient to support the judgment. We find no merit in that contention. The pleadings in this ejectment case warranted the entering of judgment for the plaintiffs and the court below acted within its authority in doing so. Jennings v. Maley,261 Pa. 485, 104 A. 731.
Judgment affirmed.
1 Reporter's note: By amendment dated October 20, 1942, subsequent to the bringing of this suit, the Rent Regulation for Housing was amended to require a preliminary ten day notice to vacate to be served on the tenant and a copy to be sent to the Area Rent Office within twenty-four hours. By further amendment dated March 24, 1943, the time for preliminary notice in non-payment of rent cases was reduced to three days. Under both amendments further notice was also required to be given to the Area Rent Office of the institution of any action to remove or evict the tenant on any ground including non-payment of rent. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3854704/ | Argued November 9, 1948.
This divorce action was instituted by the husband alleging indignities. The master recommended the libel be dismissed, and the court below overruled libellant's exceptions and refused a decree.
Both the master and the lower court found the respondent's conduct sufficient to constitute indignities, but held that libellant did not prove that he was the injured and innocent spouse.
We have made a careful and independent examination of the evidence and reach the same conclusion.
The parties were married in 1932. Three children were born; one lived five years; and the other two were seven years and three years of age at the time of the hearing, and resided with their mother. Libellant owned and operated his own general mercantile and electrical repair shop in Khedive, Greene County. His wife took care of their home directly across the street and assisted him in the store. Their marital difficulties centered about various girls employed in the shop. Although libellant attempted to show that respondent could not get along with his girl clerks, his chief complaint concerns his wife's conduct towards Betty Shoemaker who started to work in the fall of 1943.
Libellant complains that his wife publicly called him and the Shoemaker girl opprobrious names and accused them of running around together. Respondent is charged with causing disturbances before customers in the store for the purpose of humiliating him. Her repeated outbursts are alleged to have discouraged patrons and caused the libellant's profitable business to decline. In February, 1944, libellant gave his wife a note for Betty directing the payment of certain bills. Respondent cut off the bottom part of the note which read "I hope to see you tonight Betty — Art," and she is accused of not giving the note to Betty. In March, 1944, respondent, in the presence of customers in the store, accused Betty Shoemaker of running around with her husband. The *Page 548
two engaged in a hair-pulling contest, and respondent struck Betty's head on the cash register and threw her on the floor. When libellant learned of the fight he continued to live at home, but ended their relationship as husband and wife; and on May 31, 1944 he left his wife and children and moved to Waynesburg.
In a divorce action the burden is on the libellant not only to prove that the respondent by a course of conduct rendered his condition intolerable and life burdensome, but it must clearly appear that libellant was the innocent and injured party. Taylorv. Taylor, 142 Pa. Super. 441, 16 A.2d 651; Meligakes v.Meligakes, 151 Pa. Super. 1, 28 A.2d 815.
It is unnecessary for us to decide whether respondent's conduct was such as to warrant the severance of their marital ties. Our study of the record convinces us that the libellant is not the injured and innocent spouse.
In justification of her conduct respondent related several incidents which standing alone might be considered unimportant, but taken together were sufficient to arouse the ire and resentment of a normal and reasonable woman in love with her husband and fearful that she was losing his affection. Respondent admitted publicly using profane language relative to her husband and Betty Shoemaker. There was testimony that the parties got along together very well until Betty started to work. After that, libellant was found with her in the store acting in an amorous manner, at least indecorous conduct in the normal relationship of a married employer and a female employe. Betty admitted going to dinner with libellant on three or four occasions. Disinterested witnesses testified they saw them together at a carnival walking arm in arm; one time in the store she unzipped his coat and put a ribbon with a pencil on it around his neck; they were seen sitting very close together on a bench in the store touching one another; they went to the movies together; and he frequently took her home *Page 549
from work at night. His conduct with Betty Shoemaker was a matter of common knowledge in the community. While the record lacks evidence of immorality between the two, respondent's apprehensions were certainly not without foundation.
The legal principles involved in this appeal are now so well settled that they scarcely need authority to support them. This Court has repeatedly stated that false and totally unproved accusations of immorality, together with conduct maliciously designed to humiliate and embarrass libellant in his business and social life may constitute indignities. Di Stefano v. Di Stefano,152 Pa. Super. 115, 117, 31 A.2d 357; Knapp v. Knapp,152 Pa. Super. 412, 33 A.2d 88. However, indignities are not grounds for divorce where they are provoked by the complaining party, provided the retaliation is not excessive. Richards v.Richards, 37 Pa. 225; Kerr v. Kerr, 115 Pa. Super. 18,174 A. 820; Deutsch v. Deutsch, 141 Pa. Super. 339, 344,14 A.2d 586; Philo v. Philo, 154 Pa. Super. 563, 36 A.2d 833. We do not condone respondent's conduct, but it is understandable. If respondent became unduly jealous as libellant charges, it was his own conduct with Betty Shoemaker which produced it, and it was within his power to allay his wife's feelings by discontinuing his improper relations with his employe. His feelings for this girl are clearly revealed by his refusal to discharge her. At the time of the hearing she was again working for him in his new shop in Waynesburg. While their relationship could have been platonic it would not so appear to a wife whose love for her husband might make her more distrustful than if she did not care for him. Respondent might have been more temperate in her accusations but she could hardly be expected to remain calm and complacent.
While we are not called upon to decide whether the husband's conduct would entitle the respondent to a divorce if she were the libellant, we are mindful of *Page 550
President Judge KELLER'S words, "Conduct by a husband with respect to other women, although not sufficient to support a charge of adultery, may be considered as a form of personal indignity to his wife rendering her condition intolerable and life burdensome": Lowe v. Lowe, 148 Pa. Super. 439, 442,25 A.2d 781. See also Dearth v. Dearth, 141 Pa. Super. 344,15 A.2d 37; Wick v. Wick, 352 Pa. 25, 42 A.2d 76; Macormac v.Macormac, 159 Pa. Super. 378, 48 A.2d 136.
Decree affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3854705/ | Argued April 16, 1947.
The lower court entered judgment on an award of compensation made by the referee and affirmed by the board.
The facts as found by the referee appear in his fourth finding as follows: "That on August 28th, 1944 the claimant, who was employed by the defendant part time as a tailor, was using a heavy sewing machine when the belt slipped off and it was necessary to pull the machine *Page 85
from the wall in order to place the belt back on the treadle; the claimant gave the machine a jerk to pull it out from the wall and, when he did so, sustained sharp pain in his back." Claimant's testimony, the source of the above finding, is that the sewing machine which he used was pedal operated and was about the same size as "a home sewing machine — only heavier." He described the alleged accident thus: "A belt fell off from the machine and I went to put him on, see, I can't reach it and I drag up that machine, it's too close to that wall, and I drag up that machine and I feel that pain . . . I hold that machine like that and move that machine, it was heavy, I jerk it and when I jerk it I feel right here pain in my back." The pain was in the right sacroiliac region and was disabling.
An X-ray examination revealed, in the opinion of a medical expert, "a very marked arthritic condition of his back" of long standing. There was competent medical testimony that the disability suffered by claimant resulted entirely from an aggravation or lighting up of the existing arthritis. The evidence is sufficient to support the fifth finding of the referee that: "As a result of the said accident your Referee finds as a fact that the claimant sustained a sprain of the low back muscles and an aggravation of a pre-existing arthritic condition." From these findings, affirmed by the board, it is at once apparent that the compensation authorities assumed an accidental injury but no facts were found from which an accident could be inferred. Replacing the belt on a pedal operated sewing machine and moving it from the wall to make it accessible, were acts within the normal and usual duties of an operator of a sewing machine and there is nothing in the evidence indicating either over-exertion or other fortuitous happening as the cause of claimant's disability. The act of claimant in moving the machine was not an accident; it was merely an incident of the day's work. *Page 86
This case discloses no more than proof of the aggravation of a pre-existing condition; that in itself is not enough, and does not give rise to the inference that its cause was accidental. There must be clear proof of an accident. Adamchick v. WyomingVal. Col. Co., 332 Pa. 401, 3 A.2d 377; Paydo v. UnionCollieries Co., 146 Pa. Super. 385, 22 A.2d 759. We have collected and discussed some of the authorities in Garver v. B.K.Elliott Co. et al., 155 Pa. Super. 511, 38 A.2d 533 (a case which has much in common with the present appeal on the facts), to which may be added, Wilcox v. Buckeye Coal Co. et al.,158 Pa. Super. 264, 44 A.2d 603.
Since claimant suffered an aggravation of an existing abnormal condition while performing his usual work, without the happening of any untoward occurrence, this claim for compensation falls within the first type of cases, as classified in Royko v. LoganCoal Co., 146 Pa. Super. 449, 22 A.2d 434; as such, claimant's disability is not compensable.
The judgment is reversed and is here entered for the defendant employer. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3854531/ | Argued April 20, 1948.
Appellant was charged in two separate indictments with having committed the crime of sodomy on two separate occasions. The first offense was alleged to have been committed December 30, 1946, and the second, April *Page 125
18, 1947. He was acquitted of the second offense but convicted of the first. He filed motions for a new trial and in arrest of judgment. Both motions were refused. On this appeal, however, he has assigned as error only the refusal of his motion for a new trial.
Appellant is 46 years of age and unmarried. The prosecuting witness was a boy 14 years of age when the first offense is alleged to have been committed. Appellant was at the time pursuing a course of study looking to his master's degree in music at Pennsylvania State College. He had been Supervisor of Public School Music in Mercer, Pa., from 1936 to 1942, and from 1942 to March, 1946, he was in the Army, having served overseas in the Burma sector. Following his discharge from the Army, he took a six weeks' course at Carnegie Tech, Pittsburgh, in the summer of 1946 and entered State College in the fall. It was then that he met the Shearer boy, having first been attracted to him by the fact that they both bore the given name of Cecil.
During the Christmas holidays, he visited his brother in Pittsburgh, and on December 27, from the brother's address, he mailed a New Year's greeting card to Shearer. It was in a sealed envelope and addressed to Shearer at "R.F.D., State College, Penna." In addition to the printed New Year's greeting, the following personal message was written on the card: "Will arrive in Bellefonte about noon Monday Dec. 30th on the train. Am staying at the Penn-Belle Hotel Monday Tuesday nights. `Cecil'." He testified that he was to play in an orchestra at a dance on Tuesday night, New Year's Eve, and that he went to Bellefonte a day early so that he would be certain to be on time for the dance. Instead of registering at the hotel from his State College address, or from his Mercer address, he registered from his brother's address. No explanation was given by him for so doing.
The Shearer boy testified that the greeting card was handed to him by his mother late in the afternoon or *Page 126
early in the evening of December 30 at his home on Bellefonte rural route, and that in response to the message he went to the hotel where he met Bowles about eight o'clock. Bowles took him out to dinner and then took him to his room in the hotel where the offense allegedly was committed. He was given two dollars by Bowles and after leaving the hotel returned to his home.
It is not denied that Bowles mailed the card or that he was registered at the Penn Belle Hotel, but it is vigorously and strenuously denied by him that he committed sodomy on the boy on the date alleged, or at any other time. He bases his argument in support of his appeal from the refusal of his motion for a new trial on the ground that the verdict was against the weight of the evidence, chiefly for the following reason. Before the greeting card left the post office at State College, a line in red pencil was drawn through "State College" and a similar line was drawn through the words "Unknown on R.D." which had been stamped on the envelope at State College. It was then re-addressed to "Bellefonte, R.D." and handstamped or stenciled "State College, Pa., Dec. 30, 1946, 1:30 PM." The postmaster at Bellefonte, called as a witness by appellant, testified that in due course of the mails the card would not have reached the Bellefonte office until 8 P.M. on December 30 and would not have been delivered on the Bellefonte rural route until the following day. This testimony was offered for the purpose of rebutting the testimony of Shearer that he had received the card December 30.
Had the prosecution relied on the presumption that the card would have been placed in the Shearer mail box on December 30 in due course of the mails, the presumption would have been clearly rebutted by the testimony of the Bellefonte postmaster. Cf.Beeman v. Supreme Lodge, Shield of Honor, 215 Pa. 627, 64 A. 792. But the prosecution did not rely on a presumption. It relied on the direct and positive testimony of the boy as to when he received the card, and the testimony of his *Page 127
mother that she took it from the mail box and handed it to him, although she could not, or at least did not, attempt to fix the time. So what we really have is the defense attempting to rebut with a presumption direct and positive testimony of the prosecution, rather than the prosecution relying on a rebuttable presumption. Furthermore, the postmaster admitted that it was possible for the card to have been delivered to the boy without its going through the Bellefonte office. There was nothing on the envelope in which it was contained to indicate that it had ever gone through the Bellefonte office.
The Commonwealth argues that "It is obvious that the clerk at the State College post office may have seen the letter on the `unknown desk' and recognized the person to whom it was addressed, for it appears that the residence of the witness was about three miles from State College . . . which would be considerably closer than the Bellefonte post office and have delivered the letter by hand." It is not "obvious" that "the clerk . . . delivered the letter by hand." Both the mother and the boy testified that it was she who handed it to him. But we agree that it is at least a possibility based on the testimony of the postmaster and a fact that may have been inferred by the jury from testimony that it found to be credible. The jurors, having rejected the testimony of Shearer as to the offense alleged to have been committed April 18, probably accepted it as to the offense for which they convicted appellant because of the self-incriminating or "crucifying" greeting card which he admittedly sent to the boy. That is why we attach so much importance to it and have so carefully weighed and considered and discussed at some length the testimony pertaining to it.
In our opinion the testimony of the boy, standing alone, would not be sufficient to sustain a conviction. His credibility was greatly weakened by the presumption that in the ordinary or due course of the mails he *Page 128
would not have received the communication from Bowles until the day following the commission of the alleged offense. But when his testimony is considered in the light of all the attendant circumstances and especially the presence of the appellant at a time and place appointed by him, a man of 46, for a meeting with a boy of 14, one can come to no other logical conclusion than that the meeting was for the purpose of an assignation and that the illicit purpose of the assignation was attained by the perpetrator.
Whether the presence of the boy in appellant's hotel room resulted from the message sent to him by appellant, or from a chance meeting, is not of great importance, except as it affects the credibility of the boy. The important fact, as found by the jury, and it is the crux of the case, is that Bowles took the boy to his room in the hotel and there committed the act of sodomy.
The granting or refusal of a new trial is within the discretion of the trial court and its action will not be reversed on appeal unless a clear abuse of discretion appears. Commonwealth v.Dress, 354 Pa. 411, 47 A.2d 197; Commonwealth v. Dellcese,155 Pa. Super. 120, 38 A.2d 494.
As stated in the opinion of the learned president judge of the court below, he "had an opportunity to observe the principals in this case and Cecil Shearer, the young man, was a country boy, large for his age, and not too bright. Cecil A. Bowles is a much older individual and an educated man.
"The acceptance of the testimony of Cecil Shearer would account for the interest which the defendant had in the younger man. There are a great many young men in State College and yet the testimony of Cecil Bowles impresses one with the fact that this boy had been singled out by the defendant for some reason. . . . This would appear to be more than a mere passing acquaintanceship, . . ." *Page 129
Upon the whole record we are satisfied that the defendant was fairly and ably tried and defended, and properly convicted and sentenced.
The judgment is affirmed, and it is ordered that appellant appear in the court below at such time as he may be there called and that he be committed by that court until he has complied with his sentence or any part thereof which had not been performed at the time this appeal was made a supersedeas. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/202918/ | 501 F.3d 24 (2007)
Nelson ARISTUD-GONZÁLEZ, Plaintiff, Appellee,
v.
GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO (GDB); William Lockwood-Bennet, as current President of the GDB, Defendants, Appellants.
Héctor Méndez-Vázquez, as former President of the GDB; Government Development Bank for Puerto Rico (GDB); William Lockwood-Bennet, as current President of the GDB; Raquel Andújar, as Director of the Department of Pre-intervention of the GDB; Edgardo Rodríguez-Nieves, as Director of Human Resources of the GDB; Awilda Arches, as Director of Payroll; AIICO of PR; Insurance Company X, Defendants.
No. 06-2676.
United States Court of Appeals, First Circuit.
Heard May 11, 2007.
Decided August 31, 2007.
*25 Mariela Rexach-Rexach with whom Ricardo Guzmán-López de Victoria and Schuster Aguiló LLP were on brief for defendants, appellants.
Fredeswin Pérez-Caballero with whom Jesús Hernández-Sánchez and Hernandez Sanchez Law Firm were on brief for appellee.
Before BOUDIN, Chief Judge, HOWARD, Circuit Judge, and SAYLOR,[*] District Judge.
BOUDIN, Chief Judge.
Nelson Aristud-Gonzalez was an employee of the Government Development Bank for Puerto Rico ("the bank"). He began work in 1999 as a payroll assistant and became a payroll manager in 2000. When that promotion was revoked because the bank had not followed merit procedures, he was made a special assistant to the bank president-a "trust" position subject to removal at will. In September 2005, Aristud lost that position and was given no other.
In 2003, while working as special assistant, Aristud brought suit under 42 U.S.C. § 1983 (2000), charging that he had been deprived of his payroll manager position based on his political affiliation; lack of a prior hearing (allegedly in violation of his *26 due process rights) was also alleged.[1] The named defendants were the bank, an instrumentality of the Commonwealth of Puerto Rico, and its then-president Hector Mendez-Vazquez.
The district court rejected the first amendment claim, determining that there was no evidence of improper political motivation sufficient to justify a trial. As to the lack of a pre-deprivation hearing, the court held that under Puerto Rico law Aristud had no property interest in his payroll manager job because the appointment had been improper, Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173 (1st Cir.1988), and none in his subsequent "trust" position as special assistant. 3 P.R. Laws Ann. § 1465(2) (2006); Galloza v. Foy, 389 F.3d 26, 34 (1st Cir.2004).
Aristud had not sought relief implicating his original position at the banka career position as payroll assistantbut the district court's decision adverted to it as part of the chronology. The district court noted that Aristud had secured the payroll manager job after losing the assistant position and that he had lost the assistant position because it was classified as a job for union members and Aristud had declined to join the union.
Following the dismissal of his section 1983 claims, Aristud brought a new lawsuit in the Puerto Rico Superior Court. In it, he sought to require the bank to reinstate him to his original career position as payroll assistant. Again, Aristud alleged political discrimination in violation of the First Amendment.[2] The bank countered by moving in the original federal action for an injunction to bar Aristud from pursuing his new case; the new case, argued the bank, was an attempt to re-litigate matters foreclosed by the federal judgment.
The district court rejected the request. In a brief decision, the court said that it had power to protect its prior judgment; but it said "substantial justification" was needed to interfere with state proceedings and thatbecause res judicata and collateral estoppel defenses could be asserted in those state proceedingsthere was no irreparable injury and an adequate alternative remedy existed. A motion for reconsideration was denied.
The bank now appeals to this court, arguing that the district court abused its discretion in declining to enjoin the new state court proceeding. Abuse of discretion is the usual standard applied in reviewing the grant or denial of a preliminary injunction, although issues of law (reviewed de novo) and issues of fact (reviewed for clear error) can also arise. Water Keeper Alliance v. United States Dep't of Def., 271 F.3d 21, 30 (1st Cir. 2001). The bank makes arguments that could be classified in each of these categories.
Much of the bank's brief is devoted to an attempt to show that the new state court suit is barred by findings made in the federal action;[3] the pertinent doctrine is *27 collateral estoppel or issue preclusion. The bank also argues that the new suit is barred by the doctrine that forbids claim splittingmerger and bar or claim preclusion. The latter is sometimes called res judicata but strictly speaking both doctrines are branches of res judicata, which is the umbrella term.
Whether either issue or claim preclusion applies to limit or bar Aristud's new suit would take some sorting out. Claim preclusion, especially in federal courts, has expanded in recent decades from its long-time use to prevent re-litigation of the same "cause of action" to the barring of claims that were not brought earlier but grew out of the same nucleus of operative facts and "should have been brought" in the earlier action. E.g., Porn v. Nat'l Grange Mut. Ins. Co., 93 F.3d 31, 34 (1st Cir.1996).
Issue preclusion doctrine has been more stable, in the respects pertinent to this case, but normally does not bar a whole suit but rather only re-litigation of specific facts earlier resolved and necessary to the original judgment. Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir. 1994). Issue preclusionunlike the more rigid rules governing claim preclusionis also subject to various conditions and exceptions laid out in the Restatement, treatises and case law.[4] For example, it is far from clear that a description of how Aristud came to lose his first position was "necessary" to the judgment in the federal lawsuit.
Some overlap exists between Aristud's two lawsuits but we have no intention of pursuing the issueand for the same reason as the district judge. True, a federal court can issue an injunction to protect its judgment; this is a conventional ground for equitable relief and an explicit exception to the Anti-Injunction Act, 28 U.S.C. § 2283, which otherwise limits the ability of federal courts to derail state litigation.
However, the "protect the judgment" category covers more than one type of case. For example, ancillary injunctive relief is common where a defendant has failed to comply with a prior injunction. E.g., Nat'l Law Ctr. on Homelessness & Poverty v. United States Veterans Admin., 765 F.Supp. 1, 6 (D.D.C.1991). Injunctive relief incident to an interpleader action is also commonthe whole purpose being to avoid inconsistent results in separate lawsuits. E.g., Gen. Ry. Signal Co. v. Corcoran, 921 F.2d 700, 707 (7th Cir.1991).
By contrast, the need for an injunction barring a new lawsuit, where relief is sought solely on the ground that the claim has already been litigated in a prior action, takes more justification, De Cosme v. Sea Containers, Ltd., 874 F.2d 66, 68-69 (1st Cir.1989), and injunctive relief based on issue preclusion would be even rarer. Yes, the judge in the prior case knows the scope of his own litigation, but the judge in the new case has the advantage in assessing its scope. And res judicata in both its forms turns on the relationship between two lawsuits.
Accordingly, many judges would take the view that, absent unusual circumstances, res judicata is just another defense that ought to be asserted in the new lawsuit; and judges are even more likely to take this view where, as here, the res *28 judicata question is itself subject to debate and might not yield an all or nothing answer. We ourselves have said that substantial justification should be provided for such intervention. SMA Life Assurance Co. v. Sanchez-Pica, 960 F.2d 274, 277 (1st Cir.1992).
No doubt some cases call out for preemption: considerations might be the number and frequency of new suits, whether they are obviously barred by res judicata, the burden imposed by re-litigation in a far away or unfriendly venue, improper motivations for the new suit or suits and the extent to which the res judicata issue turns on judgments that are clearly better able to be made by the first judge. Courts have adverted to such concerns to inform their discretion.[5]
This case has nothing that leaps out as a reason for taking the res judicata issues away from the local courtlet alone reasons so compelling that we would think that the district court had abused its discretion. The bank criticizes the district judge for failing to spell out his calculations; but the considerations so plainly supported a decision to leave the matter to the local court that no one needed further explanation and the appeal, although not technically frivolous, is hopeless.
The district judge spoke both of a lack of irreparable injury and of an available remedy of urging res judicata defensively in the new lawsuit. The bank says that the defense against the new lawsuit will cost time and money and that this counts as irreparable injury; it does not address the adequate remedy issue but conceivably could argue that it would cost more to litigate in the new case.
Courts sometimes treat the cost of further litigation as an important equitable consideration, sometimes say it is not irreparable injury, and sometimes disregard irreparable injury as a requirement where someone seeks to re-litigate a previously decided issue.[6] Possibly there is some pattern to this contrariety of statements; not all litigation expenses are the same in magnitude or certainty or symmetry as between alternative forums.
In all events, the Puerto Rico courts are an alternative forum and any assumption that it would cost less to decide the res judicata issue in the district court is unsupported. If the res judicata issue can be easily resolved, the local court can do that. And, to the extent that res judicata has some application but does not end the local litigation, only one court need tackle the problem rather than two.
Affirmed.
NOTES
[*] Of the District of Massachusetts, sitting by designation.
[1] After Aristud was terminated in September 2005, he sought to amend his federal complaint to include allegations arising from that termination. The court did not permit the amendment, which would have been Aristud's third.
[2] He also sought reinstatement to this position under Puerto Rico lawlater reenacted in 3 P.R. Laws Ann. § 1465a(1)providing for reinstatement of career employees who are transferred to trust positions.
[3] The bank asserts that two pertinent issues allegedly resolved in the first case will, based on the complaint and discovery materials in the second case, be at issue in the second: whether Aristud lost his first job as payroll assistant because it was a union job and he was not a member; and whether the bank had a policy of discriminating against members of Aristud's party.
[4] See Restatement (Second) of Judgments § 28 (1982); 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d §§ 4416, 4422, 4426 (2002 & Supp.2007); Hoult v. Hoult, 157 F.3d 29, 31 (1st Cir.1998) (noting doctrine's various exceptions).
[5] Harrelson v. United States, 613 F.2d 114, 116 (5th Cir.1980) (possible use to bar repetitive suits where litigants are harassing their opponents); In re Louisiana-Pacific Inner Seal Siding Litig., 234 F.Supp.2d 1170, 1180 (D.Or.2002) (risk that multiple state court suits would be instituted against defendant); Walter E. Heller & Co., Inc. v. Cox, 379 F.Supp. 299, 309-10 (S.D.N.Y.1974) (litigant subjected to fifteen repetitive suits over nine years).
[6] Compare Ballenger v. Mobil Oil Corp., 138 Fed.Appx. 615, 622 (5th Cir.2005) ("No independent demonstration of irreparable harm or a lack of alternative remedies is necessary to win an injunction under the relitigation exception to the Anti-Injunction Act."), with In re SDDS, Inc., 97 F.3d 1030, 1041 (8th Cir.1996) (the cost of relitigation constitutes irreparable harm), and with FDIC v. Bank of N.Y., 479 F.Supp.2d 1, 19 (D.D.C.2007) (cost of repetitive litigation an equitable consideration), and with SMA Life Assurance, 960 F.2d at 277 (defendant had not demonstrated irreparable harm or an inadequate remedy). | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3854707/ | Argued November 19, 1949.
Arbitrators selected under a written collective bargaining agreement between The Westinghouse Air Brake Company, hereafter called Westinghouse, and United Electrical, Radio and Machine Workers of America, Local No. 610, hereafter called the Union, found for the latter. Contending only that "the arbitrators exceeded their powers", within the meaning of the Act of April 25, 1927, P. L. 381, § 10(d), 5 Pa.C.S.A. § 170, Westinghouse obtained a rule to show cause why the award should not be vacated. After argument the court below discharged the rule, and Westinghouse appealed.
The agreement provides for submission of grievances to arbitrators and the method of their selection. A section *Page 93
defines grievances: "A grievance is defined to be any question or controversy between the Company and one (1) or more employees or the Union as to the application, interpretation or violation of the terms of this Agreement, or any matter involving wages, hours or working conditions not specificallycovered by this Agreement." (Emphasis added.) It provides that a decision of two of three arbitrators shall be the decision of the board, and: "The decision of the Board shall be final and binding upon both parties." There is also a provision: "The Board of Arbitration shall not have the right to in any way alter, amend or enlarge the terms of this Agreement."
The grievance submitted to the arbitrators related to and called for an interpretation of Section 1 of Article II of the agreement: "The normal work-week shall be forty (40) hours, consisting of five (5) eight-hour days, Monday to Friday, inclusive, except where continuous operation requires otherwise. Nothing contained in this Section shall be interpreted to limit the right of the Company to schedule more or less than normal working time." Two other sections of the agreement are also pertinent. Article I, Section 6 provides: "Management of the plant and direction of the working forces are vested in the Company. The exercise of such rights by the Company shall include but not be limited to the right to hire, assign and schedule the work, . . . provided that no action so taken shall be in violation of any other provisions of this agreement." Article IV, Section 2, "Overtime at the rate of time-and-one-half shall also be paid for all hours worked between 7:15 a.m. Saturday and 7:15 a.m. Sunday."
The Union's written grievance charged that Westinghouse violated Section 1 of Article II: "By laying men off a day or more in their normal scheduled work week (Monday through Friday) when they had work available." The arbitrators, with the one selected by Westinghouse *Page 94
dissenting, found as a fact: "On or about the middle of September the Company began to lay off certain electricians for different days during the Monday to Friday work-week and ordered them to report for work on the following Saturday." Concerning this there seems to be no dispute, for Westinghouse in its brief says: "The employer directed . . . employees . . . to lay off one week day and to work on the following Saturday." With that fact established, although the decision is not for us, there would appear to be some substantial basis for the contention that Westinghouse actually scheduled a work-week other than the normal work-week provided by the agreement for some of its employes.
In an opinion of considerable length the majority arbitrators found the facts, analyzed the contentions of both parties, and interpreted the controverted section. They held: "Insofar as Article II relates to the instant case in which there has been no establishment of compelling operating necessity for deviating from its normal work-week prescription, it requires that when 40 hours of work are available, they shall be scheduled by the Company in 8 hour days, Monday to Friday inclusive. Article II does not require that 40 hours of work per week be made available. It does not prohibit the Company's providing more than 40 hours of work per week and where more than 40 hours of work per week are provided, it does not by its terms even limit the Company's choice as to whether the hours above 40 shall be made available outside the Monday to Friday normal work-week or as extra hours within the days of that normal work-week."
Continuing their interpretation, the majority said: "Article II is thus not a guarantee of a minimum or maximum work-week. It is however a guarantee for the employees that the `first' 40 hours of work made available in any week shall be scheduled for performance in *Page 95
units of 8 hours on each of the five days from Monday to Friday, inclusive. The only possible exception would be in a case of compelling operating need. Whether there can be even this exception under the terms of the contract and if there can be, how extreme the need must be, are matters not here at issue."
The arbitrators concluded that each employe involved in the proceeding was "entitled to be paid for the number of 8 hour days . . . on which the Company broke his work-week, in violation of Section [Article] II." According to a stipulation, filed by counsel in the court below to enable it to prepare the certificate of the amount in controversy, the total amount of the award was $411.68. However, it appears that not all of the aggrieved employes' claims were presented to the arbitrators and that they will be determined by the eventual result of this litigation.
The arbitrators' award is assailed by Westinghouse as a violation of the provision that they "shall not have the right to in any way alter, amend or enlarge the terms of the Agreement." The word "guarantee", as employed in the opinion is especially objectionable; and its use, Westinghouse argues, adds a new term to the agreement and, to that extent, constitutes an amendment and enlargement of its terms. Upon this is based the contention that "the arbitrators exceeded their powers." It may be conceded arguendo that even without the quoted clause the arbitrators would not have been authorized to rewrite the agreement.
The Westinghouse position is neither tenable nor new. The arbitrators were expressly authorized to interpret the agreement. The object of interpretation is to discover meaning. Determination by a competent tribunal of a meaning which one party has not previously discerned or thereafter will not concede does not demonstrate abuse of the interpretative process or that the *Page 96
tribunal has altered, enlarged, reformed or rewritten the instrument.
A similar argument was rejected in a leading case, KingstonCoal Co. v. Glen Alden Coal Co., 312 Pa. 546, 553,168 A. 677. There the appellant also asserted "that the arbitrator exceeded his jurisdiction [powers] by reforming and rewriting the contract in awarding plaintiff [appellee] prices higher than those designated in the instrument itself." The contract provided that appellant should pay appellee "the same prices . . . as the Railroad Company obtains from the sale of its coal at its breakers." The arbitrator decided that the quoted stipulationmeant "current market prices." This finding was based upon evidence taken by the arbitrator,1 and a study of all the terms of the contract. By applying principles of interpretation the arbitrator discovered in the agreement a meaning which the appellant had not previously attributed to it and which it persistently contested. Nevertheless the Supreme Court held: ". . . we are not at liberty to contradict it [the arbitrator's decision], even if we felt so inclined, since the parties have agreed that the decision of the arbitrator shall be final and binding."
The Court quoted and followed the statement of the controlling principle laid down in P. O. S. of A. Hall Assn. v.Hartford Fire Ins. Co., 305 Pa. 107, 116, 117, 157 A. 259: "The general rule undoubtedly is that, unless restricted by the agreement of submission, arbitrators *Page 97
are the final judges of both law and fact, and an award will not be reviewed or set aside for mistake in either. And this is the reasonable view, for a contrary holding would mean that arbitration proceedings, instead of being a quick and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expense, but settling nothing finally."
The excerpt states the settled law of Pennsylvania, and governs this case. Rosenbaum v. Drucker, 346 Pa. 434,31 A.2d 117; Goldstein v. International Garment Workers' Union, 328 Pa. 385,196 A. 43; Pierce Steel Pile Corp. v. Flannery, 319 Pa. 332,179 A. 558; Britex Waste Co., Ltd., v. Nathan Schwab Sons, 139 Pa. Super. 474, 12 A.2d 473. We may vacate an award only for the reasons stated in the Act of April 25, 1927, § 10, supra, and the only reason assigned for vacating this award is not supported by the record.
Order affirmed at appellant's costs.
1 The testimony taken by the arbitrators in the instant case has not been printed. From statements in the opinion of the court below, the opinion of the arbitrators, and briefs of counsel we gather that the arbitrators held at least two hearings at which at least 211 pages of testimony were taken, and that the arbitrators considered facts relating to the history of the adoption of the section in dispute, "the actual practice of the parties from 1941 until the present time", negotiations for the alteration of the terms of the agreement, and other relevant matters of fact. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1975686/ | 505 N.E.2d 445 (1986)
Pete HAZIFOTIS, Appellant (Defendant below),
v.
CITIZENS FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee (Plaintiff below).
No. 4-1185A330.
Court of Appeals of Indiana, Fourth District.
October 8, 1986.
Ordered Published March 23, 1987.
*446 Robert E. Stochel, John M. O'Drobinak, P.C., Crown Point, for appellant.
Paul A. Rake, Eichhorn, Eichhorn & Link, Hammond, for appellee.
YOUNG, Judge.
Pete Hazifotis appeals a judgment of foreclosure in favor of Citizens Federal Savings and Loan Association. He argues that:
1) Citizens failed to notify him of its intent to accelerate the maturity of the mortgage debt;
2) The transfer of the business property by Hazifotis to World Wide, Inc. terminated Hazifotis' obligation under the mortgage; and
3) The bank's acceptance of payments from World Wide, Inc. and Thureanos indicated that the bank had acquiesced in the assumption of the mortgage and therefore Hazifotis was no longer personally liable for the debt.
We affirm.
Hazifotis borrowed $48,000 from Gary Federal securing the loan by a real estate mortgage on property he was purchasing. The loan, which was closed on July 31, 1979, was to be utilized to purchase property for a snow blower and lawn mower business. Hazifotis agreed to pay the indebtedness and interest on the note, together with all taxes, assessments and insurance associated with maintenance of the property. Among other things, failure to perform as promised allowed Gary Federal to declare the note in default, accelerate the note, collect the balance and foreclose on the real estate. The mortgage was recorded August 6, 1979, and Hazifotis received the mortgage proceeds with which he purchased the property.
After the property was purchased, the snow blower and lawn mower business was established as World Wide, Inc., whose operations were supervised by a Mr. Thureanos. In January 1981, Hazifotis sought to divest himself of any interest in World Wide, Inc. by having Thureanos take it over. In June 1981, Hazifotis conveyed the mortgaged property to World Wide, Inc. for $10.00 by Warranty Deed with the restrictive language "subject to: ... First Mortgage of Pete Hazifotis to Gary Federal... ." (R. 476) Simultaneously, he sold his share of World Wide, Inc. to Thureanos for $1,000.00.
*447 As part of the transaction, Hazifotis intended that Thureanos would assume his outstanding mortgage explaining his desire to Dominic Cefali, president of Gary Federal. However, there were no further discussions because interest rates were too high. No paperwork was prepared to effect an assumption nor was Gary Federal's permission sought. When Hazifotis completed the sale he knew that there had been no transfer of his obligation. Thureanos never assumed the mortgage. Only the Gary Federal Board could approve an assumption and as a matter of policy, such an assumption would never release the original obligor.
In May 1981, when Hazifotis failed to make his monthly payment as required by his note to Gary Federal, Gary Federal sent Hazifotis a delinquency notice, but his account remained delinquent. On December 30, 1982, the loan was treated as being in default for non-payment and failure to maintain insurance. Citizens Federal subsequently acquired Gary Federal in September 1983 and Jody Edinger of the successor business wrote a certified letter to Hazifotis explaining that if there were no "resolution of the problems of a delinquency, then, we would have to initiate a foreclosure." (R. 414) Thereafter, Hazifotis was sent past due notices on a monthly basis to his Harrison Street address. Hazifotis showed the letter to Thureanos, who made some of the payments on the loan, but the loan was never brought current. Foreclosure proceedings were begun July 17, 1984 with the resulting judgment against Hazifotis.
Hazifotis first argues that Citizens failed to clearly and unequivocably notify him of its intent to accelerate the maturity of the mortgage debt. Citing First Federal Sav. & Loan Ass'n v. Stone (1984), Ind. App., 467 N.E.2d 1226. His reliance upon that case is misplaced. In Stone, the debtor, pursuant to the bank's request, made tender offers for the amount due. These offers were rejected by the bank. The offers were held to have prevented the acceleration of the debt and foreclosure by the bank because the bank's intent to accelerate was not clear and unequivocal since the bank had solicited Stone's offer of payment. Contrary to Hazifotis' contentions, the Stone decision merely states that a mortgagee may not declare the entire amount of a debt due after the debtor has tendered an offer to pay the full amount due. Stone, supra at 1233. In Stone, such an offer was solicited by the bank and made by the debtor. In the present case, Hazifotis tendered no offer to pay the full amount of the arrearage. Rather, Thureanos made some of the past due payments, but the loan was never brought current. Thus the Stone case is inapposite.
In addition, Hazifotis agreed to pay the purchase money loan according to certain terms and upon default repay the accelerated remaining balance without "notice of non-payment and protest...." Further, he agreed that the "[m]ortgagee is hereby authorized and empowered, at its option and without affecting the lien ... to declare without notice, all sums secured ... immediately due and payable ..." and he agreed that "the mortgagee may deal with such successor or successors in interest ... and ... may extend time for payment ... without in any way affecting the liability of the mortgagor." Promises of this variety in the mortgage agreement operate to discharge any need for the type of notice of acceleration claimed here, because the lender is by operation of the agreement requiring strict compliance even if payments are accepted late and can give notice by his foreclosure action. Skendzel v. Marshall (1973), 261 Ind. 226, 301 N.E.2d 641, 643. Thus by agreement, notice prior to commencement of the legal action is not required.
[S]ince a security agreement is to be enforced according to its terms, an agreement containing a non-waiver and non-modification clause gives the secured party the right to take possession of the collateral without notice upon default.
Van Bibber v. Norris (1981), 275 Ind. 555, 419 N.E.2d 115, 122. This principle is operative in a mortgage context in "preventing acceptance of late payments from operating as a waiver of a subsequent default." First Federal Sav. & Loan Ass'n v. Stone, *448 supra at 1232. Thus, the argument that Gary Federal forfeited its right to accelerate the mortgage by accepting some late payments is without merit. Similarly, the argument that Hazifotis was no longer obligated under the mortgage because of the transfer of the land to World Wide, Inc. must fail.
The conveyance by a mortgagor of the mortgaged premises to another does not exonerate him from personal liability for the debt secured. Stamper v. Link (1946), 117 Ind. App. 212, 69 N.E.2d 600.
In our view, it is the law of Indiana that a conveyance of real estate subject to an encumbrance such as a mortgage, which is the personal obligation of the grantor, without any assumption by the grantee to discharge the encumbrance, does not operate to relieve the grantor of his obligation to the mortgagee or to transfer such obligation to the grantee.
Walther v. C.I.R. (7th Cir.1963), 316 F.2d 708, 710. Thus Hazifotis remained obligated under the mortgage.
Hazifotis next argues that he was not personally liable for the mortgage note because Citizens by accepting payments from World Wide, Inc. and Thureanos somehow acquiesced to its assumption not so. Citizens' acceptance of payments from World Wide, Inc. did not release Hazifotis from his liability. There was no assumption of the original mortgage by World Wide, Inc. and there was no modification of the original mortgage terms or alteration of the personal liability originally imposed. In fact, no written documents were prepared that would provide for an assumption by World Wide, Inc. Thureanos understood there to be no assumption and he understood that in the absence of an appropriate written agreement there was no assumption. Likewise, Hazifotis admitted in his discussion with Thureanos that he was still liable on the mortgage and that he had not been able to complete the transfer of his obligation to World Wide, Inc. Moreover, Gary Federal had a standing policy that it would not allow the release of the primary obligor and it evidenced nothing to indicate that it had. It never changed the rate of interest, waived the lateness of a payment, or withheld its efforts to bring the loan current. Rather, all of the evidence indicates that the parties recognized that any assumption would require refinancing at a different interest rate and the payment of additional points. This was specifically considered and rejected by Thureanos, and Hazifotis understood that without a new agreement based upon "a change in the interest rates and new points" all he could rely upon was Gary Federal's awareness of the sale. This is insufficient. That Gary Federal may have been aware of the transaction does not release Hazifotis. Gregory v. Arms (1911), 48 Ind. App. 562, 96 N.E. 196. Indeed the trial court found inter alia:
25. That Cefali discouraged HAZIFOTIS and Thureanos from pursuing and completing said assumption immediately, in the expectation that interest rates would drop in the near future.
26. That all three men knew, understood and expected that formal paperwork and a renegotiation of the terms of said mortgage were required to complete a valid assumption of the mortgage and to discharge HAZIFOTIS' liability on said debt.
27. That said formal paperwork was never completed.
28. That all said parties were aware that said paperwork was not done.
29. That PETE HAZIFOTIS has been a licensed real estate broker since 1965, active in the real estate business since 1963, and is aware of the documents required to effect a valid mortgage assumption.
30. That George Thureanos has been a licensed real estate salesman since approximately 1956, and manages several businesses.
31. That neither Thureanos nor World Wide, Inc. assumed said mortgage and note, and Defendant PETE HAZIFOTIS remains personally liable on said debt.
*449 Moreover, even if there were a proper assumption, this standing alone, does not release the obligation of the original mortgagor unless there was also some change in his rights relative to repayment of the debt. While it is true that when a mortgage is assumed a relationship between grantor and grantee may become as that of principal and surety, the relationship of the original borrower does not change as to the lender in the absence of an express agreement on the part of the mortgagee to look first to the grantee. Geisen v. Karol (1928), 86 Ind. App. 653, 159 N.E. 469.
If the purchaser assumes the mortgage, he becomes as to the mortgagor the principal debtor, and the mortgagor the surety, but the mortgagee, unless he has assented to such an arrangement may treat both as principal debtors, and may take a personal judgment against each of them in addition to his decree of foreclosure.
Id. Gregory, supra at 567-568, 96 N.E.2d at 199. Accordingly, Hazifotis' claims that he is released because Gary Federal accepted payments from World Wide, Inc. or because Thureanos responded to Jody Edinger's letter are incorrect. Absent dealings between World Wide, Inc. and Gary Federal or Citizen's Federal which would operate "in such a manner as would jeopardize or alter the surety-principal relationship," there is no legal basis for allowing the release of Hazifotis on his obligation. First Federal Savings & Loan Ass'n of Gary v. Arena (1980), Ind. App., 406 N.E.2d 1279, 1285. Hazifotis is personally liable according to the terms of his original promise.
Affirmed.
CONOVER, P.J., and MILLER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3862614/ | Argued April 20, 1948.
The Pennsylvania Public Utility Commission issued an order extending the operating privileges of a co-partnership, trading as "Trafford Motor Coach Service," presently authorized to transport persons on scheduled bus service, to the privilege of providing group and party service at points on its authorized route.
The appellant, a partnership consisting of a father and his two sons, holds a certificate authorizing the furnishing of similar service in the Borough of Irwin and the Townships of Penn and North Huntingdon in Westmoreland County. It is the understanding of counsel for all parties that this appeal concerns only the area for which appellant has been certificated. The appeal is based on the ground that there is no substantial evidence with rational probative force to sustain the order, chiefly for the reason that the applicant offered no disinterested testimony as to the need for additional service in the three areas in which appellant has group and party rights.
True, the applicant relied solely on the testimony of its manager as to requests he had received for service in the Irwin vicinity, in North Huntingdon Township, and, on the testimony of one of its drivers, as to the need for service in the village of Claridge in Penn Township. No matter how unimpressive this testimony may appear to us, it was competent testimony and therefore its weight was for the Commission. In Alko ExpressLines v. Pa. P.U.C., 152 Pa. Super. 27, 30 A.2d 440, this Court said (p. 33): "The applicant's general traffic manager testified that the company had received numerous calls and requests including those from their customers desiring to make shipments from Philadelphia to Pittsburgh and vice versa. This testimony was admissible and its weight was for the commission: Modern *Page 11
Transfer Co., Inc. v. Pennsylvania Public Utility Commission et al., supra, p. 204."
Appellant complains that the additional rights granted to applicant "cut at the very heart of Gongaware's business." That is unfortunate, if true, but the extent to which there shall be competition is an administrative question which must be left to the discretion of the Commission. John Benkart Sons Co. v. Pa.P.U.C., 137 Pa. Super. 5, 7 A.2d 584; Sayre v. Pa. P.U.C.,161 Pa. Super. 182, 54 A.2d 95.
The route traversed by the applicant having been heretofore established, the sole question involved is whether there is sufficient competent evidence of rational probative force to sustain the order of the Commission extending the operating privileges of applicant to group and party service in addition to its regular bus schedule. There are no special rules relating to group and party certificates. Despite the able argument of counsel for appellant, we are not persuaded that this case presents anything more than an administrative question to be decided by the Commission. Highway Express Lines, Inc. v. Pa.P.U.C., 161 Pa. Super. 98, 54 A.2d 109; Yellow Cab Companyv. Pa. P.U.C., 161 Pa. Super. 41, 54 A.2d 301; Gallagher Sons v. Pa. P.U.C., 161 Pa. Super. 243, 53 A.2d 842;Gannon v. Pa. P.U.C., 162 Pa. Super. 88, 56 A.2d 366.
Order affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/153850/ | 94 F.3d 1437
71 Fair Empl. Prac. Cas. (BNA) 1466, 5 A.D. Cases 1572,18 A.D.D. 235, 8 NDLR P 296
Lennon H. MacDONALD, Plaintiff-Appellant,v.DELTA AIR LINES, INC., a Delaware corporation, and DeltaFamily Care Retirement Plan, Defendants-Appellees.
No. 95-4098.
United States Court of Appeals,Tenth Circuit.
Aug. 26, 1996.
John Preston Creer, Salt Lake City, Utah, for Plaintiff-Appellant.
Chris Wangsgard, Parsons Behle & Latimer, Salt Lake City, Utah, for Defendants-Appellees.
Before EBEL, KELLY, and HENRY, Circuit Judges.
HENRY, Circuit Judge.
1
Plaintiff Lennon H. MacDonald appeals the district court's grant of the summary judgment motion of defendants Delta Air Lines, Inc, and Delta Family Care Retirement Plan on his age discrimination and disability discrimination claims. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
2
The following are the undisputed facts in this case as set forth by the district court: Mr. MacDonald had been an airplane mechanic for Western Air Lines ("Western") for eighteen years when Western merged with Delta Air Lines ("Delta"). After the merger, he became a Delta mechanic on April 1, 1987. His duties as an aircraft mechanic included meeting arriving flights, checking with the crew to identify any mechanical problems, and preparing flights for timely departure.
3
As part of his duties in meeting arriving aircraft, Mr. MacDonald was assigned to an arrival gate in accordance with a schedule which was posted each morning on a mechanics' bulletin board. Under Delta's written policy, mechanics, including Mr. MacDonald, should be at the arrival gate five minutes before a flight arrived. If the aircraft crew had some mechanical problem to report, the assigned mechanic would correct the mechanical problem, if possible, before the plane took off. Additionally, the mechanic had the responsibility of visually inspecting the aircraft to detect possible mechanical problems and of determining if a flight should be delayed to repair mechanical malfunctions. After making a repair, the mechanic would document the repair in the computer log. Performance of these duties required fifteen to thirty minutes, even if the plane had no mechanical problems to report.
4
On June 29, 1993, Mr. Joseph F. Froehlich, Delta's general foreman of maintenance for Salt Lake City and the associated regional area, was observing operations at the D Concourse of the Salt Lake City Airport. At about 10:00 a.m., Mr. Froehlich noticed that Delta Flight 443 had arrived at Gate D3 and that no mechanic was present to meet the flight. Mr. Froehlich then walked down to the D Gate ready room, seeking an explanation for the absence of a mechanic at Gate D3. As he entered the room, he saw Mr. MacDonald sitting in the break area reading a newspaper or magazine. Mr. Froehlich went to the foreman's office and advised foreman Mark Werner that no mechanic was present at Gate D3. Mr. Werner investigated this report and discovered that Mr. MacDonald was the mechanic assigned to Flight 443. He located Mr. MacDonald in the break room reading a newspaper and told him to go work his assigned flight.
5
The next day, June 30, 1993, Mr. Froehlich called Mr. MacDonald into his office and asked him to write an incident report explaining why he did not meet Flight 443. Mr. MacDonald complied and submitted a report in which he indicated that he did not meet the flight due to an oversight of time on his part. After reviewing the incident report, Mr. Froehlich informed Mr. MacDonald that his reason was unacceptable. Mr. Froehlich then suspended Mr. MacDonald from employment pending further investigation, based on his failure to meet the flight and on his prior poor work performance.
6
Mr. Froehlich subsequently recommended that Delta terminate Mr. MacDonald's employment. On July 2, 1993, Mr. Ernie Menet, the Delta aircraft maintenance manager, submitted a written memorandum recommending that Mr. MacDonald be terminated based on his failure to meet the flight and on prior disciplinary problems. Delta management accepted this recommendation. On July 20, 1993, Delta offered Mr. MacDonald the choice of resigning or of being terminated. He subsequently resigned at age fifty-two.
II. DISCUSSION
7
We review de novo the district court's grant of summary judgment, applying the same standard as did the district court. E.g., Jones v. Unisys Corp., 54 F.3d 624, 627 (10th Cir.1995). Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "A fact is 'material' only if it 'might affect the outcome of the suit under the governing law,' and a dispute about a material fact is 'genuine' only 'if the evidence is such that a reasonable jury could return a verdict for the non-moving party.' " Thomas v. IBM, 48 F.3d 478, 486 (10th Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). We view the evidence and draw any inferences therefrom in the light most favorable to the party opposing summary judgment, here Mr. MacDonald. Id. at 484.
8
Mr. MacDonald claims that Delta fired him in violation of both the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. However, because Mr. MacDonald has failed to establish a prima facie case under either act, meaning that no reasonable jury could return a verdict in his favor, we uphold the district court's grant of summary judgment to the defendants on both claims.A. The Age Discrimination Claim
9
Under the ADEA, an employer cannot "discharge any individual ... because of such individual's age." See 29 U.S.C. § 623(a)(1). Thus, for Mr. MacDonald to establish a claim under the ADEA, he must show that Delta's decision to fire him was motivated, at least in part, see James v. Sears, Roebuck & Co., 21 F.3d 989, 992 (10th Cir.1994) (explaining that the plaintiff is not required to show that the employer was motivated only by the plaintiff's age), by his age. See, e.g., Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993); Jones, 54 F.3d at 630; Thomas, 48 F.3d at 484. There are two methods for showing that an ADEA defendant held the requisite discriminatory intent. First, the plaintiff may present direct proof of the defendant's discriminatory intent. Mr. MacDonald has offered no direct evidence showing that Delta fired him because of his age; therefore, he must proceed in the second manner, by presenting circumstantial evidence that indirectly proves Delta's discriminatory motive in firing him, see Jones, 54 F.3d at 630; Thomas, 48 F.3d at 484.
10
Where an ADEA plaintiff presents only circumstantial evidence of discrimination, we apply the analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973) (a Title VII case). See, e.g., Jones, 54 F.3d at 630; Thomas, 48 F.3d at 484. For a plaintiff-employee to establish a prima facie case of age discrimination, the McDonnell Douglas analysis requires a showing that "(1) the employee belongs to the protected age group; (2) the employee's job performance was satisfactory; (3) the employee was discharged; and (4) the employee was replaced by a younger person." Thomas, 48 F.3d at 484.
11
1. The Establishment of the First Three Elements of the ADEA Claim
12
The parties do not dispute that Mr. MacDonald has established the first and third elements of a prima facie case under the ADEA. When Delta forced him to resign, effectively firing him, he was fifty-two, bringing him within the ADEA's protected class of individuals, those "who are at least 40 years of age," 29 U.S.C. § 631(a).
13
As to the second element, the defendants argue that Mr. MacDonald has not shown that his "job performance was satisfactory" in light of his past adverse employee evaluations and his failure to meet his assigned flight on June 29, 1993. See Thomas, 48 F.3d at 484. However, we conclude that there is sufficient evidence in the record to create a genuine issue of material fact as to whether Mr. MacDonald was a satisfactory airplane mechanic. This evidence includes the following: On March 5, 1993, four months before Mr. MacDonald's termination, Mr. Larry Rogers, who was Mr. MacDonald's supervisor at the time, completed a personnel evaluation of Mr. MacDonald. See Aplt's App., Ex. D at 83. In all categories evaluated, he gave Mr. MacDonald a rating of "standard." Id. He stated that Mr. MacDonald "continue[d] to improve in his use of the computer system and the tech manuals ... [and] continue[d] to make the effort to improve from the below standard rating he was given." Id. at 84. Mr. Rogers recommended that Mr. MacDonald "be taken off the monthly evaluation list," describing Mr. MacDonald as "dependable, cooperative and always willing to help out when asked." Id.
14
In addition to Mr. Rogers's "standard" evaluation, the evidence regarding the frequency of a mechanic missing an assigned flight and the punishment imposed for doing so shows that a reasonable jury could conclude that, despite missing his assigned flight, Mr. MacDonald was a satisfactory airplane mechanic. Mr. Mark Werner, a Delta foreman at the Salt Lake City airport, testified in his deposition that occasionally "there is an airplane that arrives and a mechanic isn't there to start his work on it." See Aple's Supp.App., Ex. F at 233. Both he and Mr. Tom Orges, a Delta supervisor, testified in their depositions that they were unaware of any employee, other than Mr. MacDonald, having been fired for missing an assigned flight. See id. at 238-39; Aple's Supp.App., Ex. E at 228-29. Further, Mr. MacDonald stated in his affidavit that he had "never been written up for missing an airplane in 24 years and 5 months of service with Western and Delta Air Lines, except for the one incident on June 29, 1993." See Aplt's App., Ex. H at 199. Taken together and viewed in the light most favorable to Mr. MacDonald, this evidence shows that he was fired for an incident of unsatisfactory performance that had previously been committed by others who did not suffer similar punishment. This evidence in sum might lead a reasonable jury to conclude that Mr. MacDonald was a satisfactory airplane mechanic, establishing the second element of his ADEA claim for purposes of summary judgment.
15
2. The Failure to Establish the Fourth Element, Replacement
16
by a Younger Person
17
Mr. MacDonald has not, however, established the fourth element of a prima facie case under the ADEA, that he "was replaced by a younger person," Thomas, 48 F.3d at 484. In an attempt to establish this element, Mr. MacDonald argues that he was replaced by Mr. John R. Brzenk. The parties do not dispute that Mr. Brzenk is younger than Mr. MacDonald. Their dispute focuses on whether Mr. Brzenk replaced Mr. MacDonald after Delta fired him.
18
The uncontradicted evidence establishes that Mr. Brzenk was originally assigned as a mechanic in department 250, Mr. MacDonald's department. Aplt's App., Ex. J at 207. He was then temporarily assigned to work as a training instructor on a project involving Delta 737 aircraft. Id. During this temporary assignment, he was no longer paid by department 250, but was instead on the payroll of the department that paid the training instructors working on the 737 project. Id. When Mr. Brzenk's temporary assignment ended, he returned, once again as a mechanic, to department 250. Id.
19
Mr. MacDonald asserts that in transferring Mr. Brzenk back to his position as a mechanic in department 250, Delta replaced him with Mr. Brzenk. If in fact Mr. Brzenk were transferred in order to replace Mr. MacDonald, this would be true. However, Mr. Orges's uncontradicted deposition testimony establishes that Mr. Brzenk "always was in department 250," see id., and was not transferred to department 250 in order to replace Mr. MacDonald.
20
Mr. Orges testified in his deposition that Mr. Brzenk's assignment as a training instructor was "a temporary situation." Id. That assignment was originally for "approximately 18 months," id. at 208, and was only shortened by Delta's decision to sell the fleet of 737's for which Mr. Brzenk was training people, id. at 207-08, causing Mr. Brzenk's return to Mr. MacDonald's department to coincide with the timing of Mr. MacDonald's termination. Mr. Orges testified that when Mr. Brzenk accepted the temporary assignment as a training instructor, he was "told ... that once his stint of 18 months is up, that he goes back to his same position." Id. at 208. Finally, Mr. Orges testified that even while Mr. Brzenk was on temporary assignment and on another department's payroll, he was still included in the total number of mechanics allotted to department 250. Id.
21
In addition to Mr. Orges's deposition testimony, exhibits attached to the affidavit of Mr. Joseph F. Froehlich, Delta's general foreman of maintenance for the regional area including Salt Lake City, indicated that Mr. Brzenk was always considered one of the mechanics assigned to department 250. See Aplt's App., Ex. M. The first exhibit, a report made on June 18, 1993, two days before Mr. MacDonald was fired, lists Mr. Brzenk as a mechanic assigned to department 250. See id. at 219. In a subsequent report, made on November 2, 1993, Mr. Brzenk was still listed as a mechanic assigned to department 250. See id. at 224. These reports demonstrate that Mr. Brzenk was considered a mechanic with department 250, both before and after Delta fired Mr. MacDonald, meaning that Mr. Brzenk did not replace him.
22
Not only do these reports indicate that Mr. Brzenk did not replace Mr. MacDonald, they show that no one replaced him. They state that as of June 18, 1993, two days before Mr. MacDonald was fired, department 250 was approved to have 116 mechanics, but was assigned only 110. See id. at 218. As of November 2, 1993, the department was still approved to have 116 mechanics, but the number assigned to it had reduced to 103. Id. at 223. As the district court noted, this decrease in the number of mechanics in the department indicates that Mr. MacDonald was not replaced by anyone, younger or older.1 Based on this uncontradicted evidence, a reasonable jury could not conclude that Mr. Brzenk replaced Mr. MacDonald. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Thomas, 48 F.3d at 486. Therefore, he has not established the fourth element of his prima facie case under the ADEA. For this reason, we affirm the district court's grant of the defendants' motion for summary judgment on this claim.
B. The Disability Discrimination Claim
23
In addition to his claim that he was fired because of his age, Mr. MacDonald asserts that Delta fired him because of a disability he had under the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. §§ 12101-12213. Specifically, he claims that Delta's knowledge of his vision problems caused Delta to regard him as having "a physical ... impairment that substantially limit[ed]" his ability to perform the duties of an airplane mechanic. See 42 U.S.C. § 12102(2)(A), (C).
24
The ADA prohibits a "covered entity" from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees." See 42 U.S.C. § 12112(a). The Act defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." See 42 U.S.C § 12111(8). Thus, to establish a prima facie case under the ADA, Mr. MacDonald must establish "(1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disability." See White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995), quoted in Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir.1995). Mr. MacDonald has failed to establish the first and third elements of an ADA claim.
25
1. Failure to Establish a Disability Under the ADA
26
The ADA defines a "disability ... with respect to an individual" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Mr. MacDonald relies upon subsection (C) of § 12102(2) in an effort to establish that he was disabled under the ADA. Subsection (C)'s description of "such an impairment" refers to subsection (A)'s definition of the type of impairment required under the ADA. Thus, under subsection (C), a person is disabled under the ADA if he is "regarded as having," 42 U.S.C. § 12102(2)(C), "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," 42 U.S.C. § 12102(2)(A), regardless of whether he actually has such an impairment, see Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir.1995) (holding that the plaintiff "might have qualified as disabled under the ADA if she could have provided sufficient summary judgment evidence that she was regarded by [the defendant] as having an impairment that substantially limited a major life activity, whether she actually had such an impairment or not " (emphasis added)).
27
To determine whether Mr. MacDonald has satisfied § 12102(2)(C)'s definition of a disability, thereby establishing the first element of his ADA claim, we must define three terms that, by reference to § 12102(2)(A), are included in the definition: "regarded as," "major life activities," and "substantially limits." The ADA does not define these terms. For this reason, we have previously referred to the Act's implementing regulations, see 29 C.F.R. Pt. 1630, for clarification. See Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S. Ct. 1104, 130 L. Ed. 2d 1071 (1995).
28
(i) "Regarded As"
29
The regulations implementing the ADEA explain that a person is regarded as having an impairment that substantially limits a major life activity if he
30
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
31
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
32
(3) Has none of the impairments defined in [29 C.F.R. § 1630.2(H) ]2 but is treated by a covered entity as having a substantially limiting impairment.
33
29 C.F.R. § 1630.2(l )(1)-(3) (emphasis added). Thus, "[a] person is 'regarded as having' an impairment that substantially limits the person's major life activities when other people treat that person as having a substantially limiting impairment. The focus is on the impairment's effect upon the attitudes of others." Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995) (citation omitted).
34
(ii) "Major Life Activities"
35
In order to evaluate Mr. MacDonald's assertion that he is disabled under the ADA, the second term from § 12102(2) that must be defined is that which Delta must have perceived as being substantially limited by his impaired vision: "major life activities." See 42 U.S.C. § 12102(2)(A), incorporated in 42 U.S.C. § 12102(2)(C). The ADA's implementing regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." See 29 C.F.R. § 1630.2(i) (emphasis added). Mr. MacDonald claims that Delta perceived his vision problems as substantially limiting the "major life activit[y]" of "working." See id.
36
(iii) "Substantially Limits"
37
The final aspect of the ADA's definition of a disability under 42 U.S.C. § 12102(2)(C) that requires explanation is the requirement that the impairment at issue be perceived as "substantially limit[ing]" a major life activity. See 42 U.S.C. § 12102(2)(A), incorporated in 42 U.S.C. § 12102(2)(C). The regulations implementing the ADA list three factors that "should be considered in determining whether an individual is substantially limited in a major life activity." See 29 C.F.R. § 1630.2(j)(2). They are: "(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2)(i)(iii), quoted in Bolton, 36 F.3d at 943; see also 29 C.F.R. § 1630.2(j)(3)(ii) (listing three additional factors that "may be considered in determining whether an individual is substantially limited in the major life activity of 'working' "), quoted in Bolton, 36 F.3d at 943.
The regulations further explain that
38
[t]o demonstrate that an impairment "substantially limits" the major life activity of working, an individual must show "significant[ ] restrict[ion] in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities."
39
Bolton, 36 F.3d at 942 (quoting 29 C.F.R. § 1630.2(j)(3)(i)). The regulations guide us further in our analysis of whether Mr. MacDonald has shown that Delta regarded his impaired vision as substantially limiting the major life activity of working by defining what is meant by "a class of jobs" or "a broad range of jobs." They define a "class of jobs" from which an individual's impairment restricts him as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(B). They define a "broad range of jobs in various classes" from which an individual's impairment has disqualified him as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(C). If neither of these definitions is met, and an individual instead shows only that he is unable "to perform a single, particular job," see 29 C.F.R. § 1630.2(j)(3)(i), the regulations and case law make clear that he has not shown that he is "substantial[ly] limit[ed] in the major life activity of working." See id.; see also Bolton, 36 F.3d at 942 (quoting 29 C.F.R. § 1630.2(j)(3)(i)); Dutcher, 53 F.3d at 727 (explaining that "the inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working."); Wooten, 58 F.3d at 386 (holding that under the ADA, " 'working' does not mean working at a particular job of that person's choice.").
40
Thus, to establish that he has a disability under 42 U.S.C. § 12102(2)(C), Mr. MacDonald must have shown that Delta regarded him as being substantially limited in performing either a class of jobs or a broad range of jobs in various classes. He claims that he has done this because "[a]n airplane mechanic is a class of jobs," see Aplt's Br. at 15, and Delta regarded his impaired vision as significantly restricting his ability to be an airplane mechanic. He relies upon the following evidence in support of this argument: He testified in his deposition that six months before June of 1993, the month in which he was fired, he told Mr. Orges that he "believed that [he] had a cataract which was preventing [him] from performing [his] job as an aircraft mechanic." See Aple's Supp.App., Ex. D at 110. In addition, on May 10, 1993, less than two months before he was terminated, his impaired vision caused him to fail a physical that one must pass in order to be certified to taxi aircraft. See Aplt's App., Ex. D at 85-86.
41
This evidence fails to establish that Mr. MacDonald was disabled under the ADA's definition found in 42 U.S.C. § 12102(2)(C) because it does not show that Delta regarded his vision problems as substantially limiting his ability to be an airplane mechanic. It in no way indicates that Delta treated him as having a substantially limiting impairment. See 29 C.F.R. § 1630.2(l )(1)-(3); Wooten, 58 F.3d at 385. If in fact Mr. MacDonald told Mr. Orges of his vision problems, which Mr. Orges disputes, there is no evidence that Mr. Orges or any other Delta employee treated or regarded Mr. MacDonald differently as a result of this knowledge. In fact, the evidence upon which Mr. MacDonald relies in support of this claim establishes that the only treatment by Delta of him that resulted from his failed eye exam was that Delta did not allow him to taxi aircraft. However, taxiing aircraft is neither "a class of jobs," nor "a broad range of jobs in various classes," but is instead "a single, particular job." See 29 C.F.R. § 1630.2(j)(3)(i). Mr. MacDonald himself admitted in his deposition testimony that "passing the taxi physical wasn't a necessary part of being an aircraft mechanic." See Aple's Supp.App., Ex. D at 111. In fact, Mr. MacDonald had not been certified to taxi aircraft since 1985, see Aplt's App., Ex. H at 199, meaning he had performed the job of airplane mechanic for approximately eight years without taxiing aircraft before he was terminated. Therefore, when Delta disallowed him from taxiing aircraft due to his impaired vision, it did not demonstrate that Delta regarded him as being substantially limited in his ability to perform the major life activity of working.
42
2. Failure to Establish that the Disability Resulted in Termination
43
Even if Mr. MacDonald's evidence showed that he was disabled under the ADA, which it does not, he has not established the third element of an ADA claim, that he was terminated because of this disability. See White, 45 F.3d at 360-61. He has presented no evidence suggesting that Delta terminated him because it regarded his vision problems as substantially limiting his ability to be an airplane mechanic. There is no evidence that Mr. Orges, who Mr. MacDonald claims knew of his impaired vision, was in any way connected to his termination. There is also no evidence that Mr. MacDonald's failure to pass the eye exam needed to taxi aircraft was related to his eventual termination. We therefore affirm the district court's grant of summary judgment to the defendants on Mr. MacDonald's ADA claim.
III. CONCLUSION
44
Because we conclude that Mr. MacDonald has failed to establish a prima facie case under either the ADEA or the ADA, we hold that a reasonable jury could not return a verdict in his favor on either claim. We therefore AFFIRM the district court's grant of summary judgment to the defendants on both claims.
1
Mr. MacDonald does not argue that this reduction in assigned mechanics in department 250 reflects that Delta was reducing its workforce. See Aplt's Br. at 9. Had he instead argued and established that the decrease in mechanics was part of a reduction in Delta's workforce, he would have needed to demonstrate the fourth element under McDonnell Douglas "by producing 'evidence, circumstantial or direct, from which a fact-finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.' " Jones, 54 F.3d at 630 (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988))
2
Section 1630.2(h) defines "physical or mental impairment" as used in 42 U.S.C. § 12102(2) | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4523754/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0983-19
JUAN ANTONIO GONZALEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY
W ALKER, J., filed a dissenting opinion in which S LAUGHTER, J., joined.
DISSENTING OPINION
This case comes back before our Court after we remanded to the court of appeals. Gonzalez
v. State, 544 S.W.3d 363, 375 (Tex. Crim. App. 2018). On remand, the court of appeals overruled
Appellant’s issues which claimed that the evidence is legally insufficient to support his conviction
for murder. Appellant petitions this Court for discretionary review. Because I agree with Appellant
and the dissenting Justice at the court of appeals that the evidence is legally insufficient, I would
grant review. Because the Court does not, I respectfully dissent.
I — Background
2
The basic facts of this case are, essentially,1 that Juan Antonio Gonzalez, Appellant (age 17
at the time), and his two friends, Alan Medrano (age 19) and Juan Gomez (age 18), were walking
home from school in the late afternoon along a sidewalk on the side of a busy residential street. As
they were walking, Gomez “keyed” several parked cars, including the car of Jonathan Molina, a
police officer who was off-duty at the time. Molina, who was not in uniform, emerged angrily from
his house and confronted Gomez. Although there is some dispute as to how angry and
confrontational Molina was and which particular words he said to Appellant, Medrano, and Gomez,
an argument quickly ensued and escalated. Molina shoved Appellant, and Appellant reacted by
punching Molina. Then, Appellant tackled Molina by using a “judo move” to take down Molina by
picking him up by the legs and dropping him. This caused Molina’s head to hit the concrete
sidewalk, and Molina, who weighed 275 pounds, likely did not break his fall in any way. Appellant
got on top of Molina and punched him two or three times in the face. Then Appellant, Medrano, and
Gomez walked away from the scene, and they began running when they heard a bystander say the
police were being called.
The evidence showed that Molina’s head hit the concrete in an area where the surface was
irregular and jutted up “like a teepee.” Molina suffered a brain injury and died ten days later.
According to the medical examiner, Appellant’s punches had nothing to do with the cause of death.
The blow to Molina’s head from hitting the sidewalk was not a survivable injury.
After the fight, Appellant went to an uncle’s apartment and began sending and receiving
messages on Facebook, including messages related to the fight. In messages to his girlfriend,
1
The facts of this case were thoroughly recited in our previous opinion. See Gonzalez, 544
S.W.3d at 365–69.
3
Appellant told her that he might go to jail because he and “two friends walked home and this guy
starting talking shit to us, and at first I told him to back off and he pushed me so I punched him, then
tackled him, then punched him again.” Appellant also said that “It’s not my fault tho he was like 30
and twice my size, . . . I’m really really really scared” and “I shouldn’t have hit him, I don’t know
what I was thinking.” He told his girlfriend that they ran when they saw the man twitching and
bleeding. After hearing a news report that Molina had died, Appellant messaged Medrano that, “I
hope u didn’t get caught I killed the guy, he went into compulsions and died.” When later accounts
reported that Molina was alive, Appellant messaged, “Dude turn on the news there’s all this crap
going on.” Appellant claimed he was going to turn himself in the next day, but police located and
arrested him at 3:00 a.m.
At trial, Medrano testified that he and Appellant routinely taught each other and practiced
boxing and judo moves. He testified that Appellant taught him how to take down someone bigger
by grabbing their legs and dropping them, causing the person to fall on their own weight, allowing
the person who executed the move to climb on top of the downed individual. Medrano said he and
Appellant would wrestle and practice moves while hanging out at home.
Appellant was charged with capital murder, but the jury convicted him of the lesser offense
of murder. After we remanded this case back to the court of appeals,2 that court considered, among
other issues, Appellant’s challenge that the evidence was legally insufficient to support the murder
conviction. The court of appeals disagreed and found that there was legally sufficient evidence to
2
Id. at 375.
4
show that Appellant either intended to cause Molina’s death,3 or, while intending to cause serious
bodily injury to Molina, committed an act clearly dangerous to human life that caused Molina’s
death.4 Gonzalez v. State, No. 08-14-00293-CR, 2019 WL 1553583 at *5–9 (Tex. App.—El Paso
Apr. 10, 2019) (not designated for publication). Justice Rodriguez dissented. Gonzalez, 2019 WL
1553583 at *21 (Rodriguez, J., dissenting). She agreed with Appellant that the evidence was
insufficient to show murder. Id. Instead, she thought the evidence was sufficient to support
manslaughter, and she would have reformed the judgment to reflect a manslaughter conviction and
remanded for a new punishment hearing. Id.
II — Sufficiency of the Evidence
In assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts
“consider all the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt.” Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44
(Tex. Crim. App. 2019) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007));
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard requires the appellate court to defer “to
the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Zuniga v. State, 551
S.W.3d 729, 732 (Tex. Crim. App. 2018) (quoting Jackson, 443 U.S. at 319). Each fact need not
3
See TEX . PENAL CODE Ann. § 19.02(b)(1) (“A person commits an offense if he . . .
intentionally or knowingly causes the death of an individual”).
4
See id. § 19.02(b)(2) (“A person commits an offense if he . . . intends to cause serious
bodily injury and commits an act clearly dangerous to human life that causes the death of an
individual”).
5
point directly and independently to guilt if the cumulative force of all incriminating circumstances
is sufficient to support the conviction. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018)
(citing Hooper, 214 S.W.3d at 13). It is not necessary that the evidence directly prove the defendant’s
guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant’s guilt,
and circumstantial evidence can alone be sufficient to establish guilt. Id.
An appellate court cannot act as a thirteenth juror and make its own assessment of the
evidence. Id.; Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Instead, the appellate
court’s role is restricted to guarding against the rare occurrence when the factfinder does not act
rationally. Nisbett, 552 S.W.3d at 262; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
This rationality requirement is a key, explicit component of the Jackson sufficiency standard. See
Jackson, 443 U.S. at 319 (“[T]he relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”) (emphasis added).
Thus, a reviewing court is not to simply determine whether there is evidence that supports
the verdict, and, if so, declare that the evidence is legally sufficient. “[T]he Jackson v. Virginia
standard is not a ‘no evidence’ standard.” Johnson v. State, 23 S.W.3d 1, 15 (Tex. Crim. App. 2000)
(McCormick, P.J., dissenting). The Jackson standard “requires the reviewing court to consider all
the evidence in the ‘light most favorable to the verdict,’ and then it requires the reviewing court to
decide whether the jury’s finding is ‘rational.’” Id. (emphasis in original).5
5
“[A]ll of the evidence is to be considered.” Jackson, 443 U.S. at 319 (emphasis in original);
McDaniel v. Brown, 558 U.S. 120, 131 (2010) (“a reviewing court must consider all of the evidence
admitted at trial when considering a Jackson claim”). Thus, an argument that “direct and
circumstantial evidence against the jury’s verdict is ignored” in a proper Jackson sufficiency review
“is a misstatement of the law. In a legal-sufficiency analysis, no evidence is ‘ignored’ because the
6
Accordingly, while “[w]e are not to sit as a thirteenth juror reweighing the evidence or
deciding whether we believe the evidence established the element in contention beyond a reasonable
doubt . . . we are to ask ourselves whether the trier of fact, acting rationally, could have found the
evidence sufficient to establish the element beyond a reasonable doubt.” Blankenship v. State, 780
S.W.2d 198, 207 (Tex. Crim. App. 1988) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.
App. 1988)). “It is the obligation and responsibility of appellate courts ‘to ensure that the evidence
presented actually supports a conclusion that the defendant committed the crime that was charged.’”
Ross v. State, 543 S.W.3d 227, 234 n.14 (Tex. Crim. App. 2018), and Reynolds v. State, 543 S.W.3d
235, 241 n.10 (Tex. Crim. App. 2018) (both quoting Winfrey v. State, 323 S.W.3d 875, 882 (Tex.
Crim. App. 2010)); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). “[W]e test the
evidence to see if it is at least conclusive enough for a reasonable factfinder to believe based on the
evidence that the element is established beyond a reasonable doubt.” Blankenship, 780 S.W.2d at
207 (citing Jackson, 443 U.S. at 318).
III — Could a Rational Jury Infer Intent to Cause Death?
“Although the question is an exceedingly close one,” the court of appeals concluded that a
rational jury could find intent to cause death from evidence that Appellant got on top of Molina after
the takedown and evidence that Appellant left the scene.
The court of appeals found it important that after Appellant tackled Molina, Appellant got
on top of Molina and punched him two or three more times. Citing Hall v. State, the court of appeals
took this as evidence of striking a helpless victim, which raises an inference that a fatal blow was
standard requires a reviewing court to view all of the evidence in the light most favorable to the
verdict.” Cary v. State, 507 S.W.3d 750, 759 n.8 (Tex. Crim. App. 2016) (emphasis in original).
7
struck intentionally or knowingly. See Hall v. State, 970 S.W.2d 137, 140 (Tex. App.—Amarillo
1998, pet. ref’d). But while Hall did take into account evidence that the defendant struck the victim
after the victim was rendered helpless as evidence supporting intent to cause death, the Hall court
had much more than the additional strikes. The Hall court found “ample” evidence, consisting of:
1) the disparity in size between [Hall] and Draper, 2) [Hall’s] repeated hitting and
kicking of Draper as he sat on the ground in a stupor unable to defend himself, 3)
[Hall’s] yelling at Draper during the assault, 4) the great force of the blows as
evinced by [a witness’s] ability to hear them from inside her house, 5) [Hall’s] attack
upon those who interceded, 6) the dire nature of Draper’s injuries, 7) [Hall’s]
callousness towards his victim as evinced by the decision to leave the injured man
on the ground and take his car once the beating ended, and 9) [Hall’s] resumption of
the attack after coming back to the house to retrieve cigarettes.
Id. While there are some similarities between Hall and this case, the differences between the facts
of Hall and the facts of Appellant’s case are apparent. For instance, Appellant was smaller than
Molina. Additionally, Appellant’s fight with Molina was, by all accounts, very short-lived, whereas
the assault in Hall lasted five to fifteen minutes. Id. at 139. And, perhaps most significantly, the Hall
court made sure to note that:
That the medical expert testified to various possible causes of the resulting head
trauma and death does not change our conclusion. This is so because no one
presented evidence indicating that Draper fell and struck his head. Nor was evidence
presented indicating that anyone other than appellant struck the decedent.
Id. at 140. This case has exactly that evidence—Molina fell and struck his head on the sidewalk. This
was the sole cause of Molina’s death. In contrast, the medical expert in Hall opined that the victim
in that case, Draper, died from cranial hemorrhaging caused by blows to the head that, although
could have been caused by a fall, could have also been caused by a fist or a foot. Id. at 139. Hall is
distinguishable, and the court of appeals erred by relying on it to find intent to cause Molina’s death.
The court of appeals also relied on Phillips v. State to find intent to cause Molina’s death,
8
based upon evidence that Appellant left the scene, even though he knew that Molina was seriously
hurt. See Phillips v. State, 216 S.W.2d 213 (Tex. Crim. App. 1948). In Phillips, Phillips, the victim,
and a third man spent the night drinking in a rural area several miles east of Wichita Falls. Id. at 214.
Eventually, they got into a “difficulty” and the victim was knocked to the ground. Phillips and the
other man then returned to Wichita Falls, leaving the victim lying helpless in an unconscious or
semi-unconscious state on the side of the highway. Id. The victim’s dead body was discovered the
next morning in a barrow ditch. Id. We noted that the evidence showed that Phillips struck the
deceased three or four times with blows of great force, rupturing almost all of the arteries in the
brain. Id. We also noted that, after knocking the victim down, rendering him helpless and in an
unconscious or semi-conscious condition, Phillips dragged the victim to the edge of the road and left
him lying there. Id. We found that intent to kill could be inferred from those facts. Id.
But just as Hall is distinguishable from this case, so too is Phillips. Unlike in Phillips, the
fight between Appellant and Molina occurred in the afternoon on a well-traveled road in a residential
area, and Appellant did not try to hide Molina’s body. Furthermore, the fight occurred in plain view
of neighbors and drivers on the road. But of those people, the court of appeals pointed out that
“Appellant had no basis to know the bystanders’ competence or willingness to assist the downed
man.” But the evidence showed that Appellant knew the bystanders were willing to assist Molina.
A woman on the porch of a nearby house was told to call the police, and two of the witnesses
actually called 9-1-1 for help. And not only was help called for, help did arrive and take Molina to
the hospital. This case is different from Phillips. The fact that Appellant and his friends left Molina
on the sidewalk, while bystanders were gathering around and some of which were calling 9-1-1, does
not reflect an intent to leave the man for dead.
9
Instead of being evidence of Appellant’s mental state during the fight, the evidence that
Appellant left the scene reflects his mental state after the fight. Indeed, the court of appeals took the
fact that Appellant left the scene, in combination with evidence showing that Appellant was later
aware that the police were looking for him that evening but stayed home, as evidence of flight. The
court of appeals correctly noted that evidence of flight from the scene of a crime is a circumstance
from which an inference of guilt may be drawn. Appellant argued that he left the scene because he
thought he might get into trouble, but the court of appeals discounted this explanation because “the
trier of fact was not required to accept” it.
If the trier of fact was not required to accept that explanation, what other explanation could
there be? Fleeing the scene of a crime to avoid getting into trouble is the very reason evidence of
flight is relevant and probative of guilt. Evidence of flight shows that the defendant knew that
something bad happened and that, because he could get in trouble for it, he ran to avoid getting into
trouble. This makes evidence of flight useful to prove guilt where the defendant claims no
knowledge of or no involvement in the crime—if he wasn’t involved, why would he run and hide?
Appellant’s argument, that he left the scene because he thought he might get into trouble, is
exactly the inference that can be made from evidence of flight. Such evidence of flight does no more
than show that he caused Molina’s injury. This was never in dispute. What the evidence of flight
does not do is show that Appellant intended to cause Molina’s death.
In sum, I disagree with the court of appeals that the evidence was legally sufficient to show
that Appellant intended to cause Molina’s death.
IV — Could a Rational Jury Infer Intent to Cause Serious Bodily Injury?
The court of appeals found that intent to cause serious bodily injury could be inferred from
10
the evidence that Appellant took Molina’s legs out from underneath him while on a concrete surface,
after which Appellant hit Molina in the face while his head was against the ground. According to the
court of appeals, “[t]hese actions raise at least an inference of acting with the conscious objective
or desire to create a substantial risk of death through causing serious bodily injury.” Gonzalez, 2019
WL 1553583 at *8.
The court of appeals’s conclusion, I believe, is not based upon a consideration of all of the
evidence. The evidence includes not just the fact that Appellant used the takedown move on Molina
on an uneven concrete surface, but also evidence showing that Appellant and Medrano regularly used
the same takedown move on each other without injury. A rational jury could not conclude that
Appellant intended serious bodily injury through the use of the takedown move.
When Medrano was fourteen or fifteen years old, he had trained for five or six months at a
boxing gym, and Medrano shared the moves he learned at boxing with Appellant. Gonzalez, 544
S.W.3d at 368. Similarly, Appellant showed Medrano judo moves that he learned from taking two
to three months of judo classes years before the incident. Id. One of the moves involved taking a
person down by grabbing their legs, picking them up, and using their own force against them. Id. The
two would practice and teach each other these skills two to three times a week. Id.
While the State presented evidence that Appellant and Medrano had practiced these
takedown moves, from which a rational jury could infer that Appellant was aware that the takedown
move would cause the other person to fall down, the State failed to present any evidence to show that
Appellant knew the move could cause injury, much less serious bodily injury. There was no evidence
that Appellant, Medrano, or anyone else was injured as a result of the move before Appellant used
the move on Molina in this case. The State also failed to present evidence that Appellant was, at the
11
very least, aware that using the move could cause an injury, even though the move never did in his
personal experience. Instead, the evidence produced at trial showed that the takedown move, while
practiced by Appellant and Medrano, did not cause injury, let alone a fatal head injury. Medrano and
Appellant’s repeated practices of the move upon each other without injury shows that Appellant was
unaware that the move could cause serious bodily injury. If Appellant was unaware that the
takedown move could cause an injury, how could he have had an intent to cause serious bodily injury
through use of that very same move? If, instead, there was evidence that Appellant, while teaching
and practicing the move with Medrano, discussed with Medrano about the dangers of the move
especially when performed on hard surfaces, the evidence would at least show he was aware of a
risk, and a jury could infer that he consciously disregarded the risk by his use of the move on Molina
in this case. Of course, such direct evidence of risk awareness is not always available, and awareness
of a risk can be inferred from circumstantial evidence.
Justice Rodriguez, in her dissent below, found that Appellant’s use of the takedown move
on the sidewalk constituted conscious risk creation sufficient to support manslaughter. Gonzalez,
2019 WL 1553583 at *21. But manslaughter, which is defined as the reckless causing of death,6
requires not only conscious disregard of a risk but also awareness of that risk.7 Is there circumstantial
evidence from which the jury could infer awareness and thus recklessness? Arguably, there is.
Appellant and his friends were walking along the concrete sidewalk, and they had to be aware that
6
See TEX . PENAL CODE Ann. § 19.04(a) (“A person commits an offense if he recklessly
causes the death of an individual.”).
7
See TEX . PENAL CODE Ann. § 6.03(c) (“A person acts recklessly . . . with respect to . . . the
result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable
risk that . . . the result will occur.”).
12
the sidewalk was made of concrete. And as discussed above, Appellant was aware that the takedown
move would cause the person it is used upon to fall. Thus, while the evidence is insufficient to
support murder, the dissent below raises a strong point that the evidence supports manslaughter, at
the most. Her suggestion to consider the possibility of reforming the judgment to show a conviction
for manslaughter is another reason to grant review.
While the evidence probably shows that Appellant was reckless, it undoubtedly shows that
Appellant should have been aware that the moves he practiced with Medrano had the potential to be
dangerous. And Appellant should have been aware that performing the move outdoors on a sidewalk
was dangerous. But “should have been aware” makes a case for criminal negligence,8 not intent to
cause serious bodily injury.
IV — Was the Takedown an Act Clearly Dangerous to Human Life?
Even if Appellant caused Molina’s death while harboring a specific intent to cause serious
bodily injury, such intent alone is not enough to support a conviction for serious-bodily-injury
murder under § 19.02(b)(2). The second element of prosecution under § 19.02(b)(2) requires a
showing that the individual commits an act clearly dangerous to human life. Lugo-Lugo v. State, 650
S.W.2d 72, 81 (Tex. Crim. App. 1983). The character of the act clearly dangerous to human life is
measured by an objective standard. Id. I have reservations as to whether Appellant’s act in this
case—the takedown of Molina—meets that standard.
The jury heard evidence that Appellant and Medrano routinely practiced takedown moves
with each other without incident. The jury did not hear evidence that the move used by Appellant
8
See TEX . PENAL CODE Ann. § 6.03(d) (“A person acts with criminal negligence . . . with
respect to . . . the result of his conduct when he ought to be aware of a substantial and unjustifiable
risk that . . . the result will occur.”).
13
was inherently dangerous, let alone clearly dangerous to human life. Instead, the jury was presented
with evidence that the move was dangerous in this case, performed under the particular circumstance
of an uneven concrete surface. Outside of that circumstance, the takedown move was relatively safe,
and the evidence presented to the jury proves the point—there was one fatal injury against a context
of numerous unremarkable uses of the move without injury.
Nevertheless, the court of appeals concluded that “undercutting someone’s feet in a way that
they might fall without the ability to brace themselves, and fall on a hard-uneven surface” is an act
clearly dangerous to human life. This was in contrast to situations in which the court of appeals
apparently would have found the very same takedown move to not be an act clearly dangerous to
human life, such as “a student felled in a padded Judo studio, or a gridiron running back who is
protected by padding and expecting a tackle.” Gonzalez, 2019 WL 1553583 at *9. The court of
appeals’s approach, finding that the takedown move is an act clearly dangerous to human life under
the specific circumstances of this case while on the other hand acknowledging that the same act is
safe in other circumstances, warrants review.
V — Conclusion
In conclusion, I would grant Appellant’s petition. The evidence in this case is, from the
record before us, insufficient to support a rational jury conclusion that Appellant intended to cause
death or intended to cause serious bodily injury, and the evidence may also be insufficient to support
a conclusion that Appellant’s takedown of Molina was an act clearly dangerous to human life.
Because the Court refuses review, I respectfully dissent.
Filed: April 8, 2020
14
Do Not Publish | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554091/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2855
__________
UNITED STATES OF AMERICA
v.
RAYMOND MAINOR,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-06-cr-00140-001)
District Judge: Honorable Wendy Beetlestone
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 3, 2020
Before: AMBRO, GREENAWAY, JR., and PORTER, Circuit Judges
(Opinion filed: August 7, 2020)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Raymond Mainor appeals the District Court’s order granting in
part and denying in part his motion for a reduction of sentence under 18 U.S.C.
§ 3582(c). We will affirm the District Court’s judgment.
In 2008, pro se appellant Raymond Mainor was convicted of the following drug
and firearm offenses:
• Count 1: possession with intent to distribute five kilograms or more of cocaine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)
• Count 2: possession with intent to distribute five kilograms or more of cocaine in a
school zone in violation of 21 U.S.C. § 860(a)
• Count 3: possession with intent to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
• Count 4: possession with intent to distribute 500 grams or more of cocaine in a
school zone in violation of 21 U.S.C. § 860(a)
• Count 5: possession with intent to distribute five grams or more of crack in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
• Count 6: possession with intent to distribute five grams or more of crack in a
school zone in violation of 21 U.S.C. § 860(a)
• Count 7: possession of a firearm in furtherance of a drug-trafficking crime in
violation of 18 U.S.C. § 924(c)
• Count 8: possession of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1)
• Count 9: distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
• Count 10: distribution of cocaine in a school zone in violation of 21 U.S.C.
§ 860(a)
ECF No. 161 (judgment) at 1–2. The Court treated the drug offenses from counts 1, 3, 5,
and 9 as lesser-included offenses of counts 2, 4, 6, and 10, respectively. See id. at 1. The
Court then sentenced Mainor to concurrent terms of 20 years’ imprisonment on counts 2,
4, 6, and 10; a concurrent term of 10 years’ imprisonment on count 8; and a consecutive
2
term of 5 years’ imprisonment on count 7, for a total term of 25 years in prison. See id.
at 3. The Court also imposed 20 years of supervised release as to counts 2, 4, 6, and 10,
and 3 years of supervised release as to counts 7 and 8, all to run concurrently. See id. at
4. Mainor appealed, and we affirmed. See United States v. Mainor, 393 F. App’x 10 (3d
Cir. 2010).
Since the time of Mainor’s sentencing, there have been two relevant amendments
to the sentencing statute. First, in 2010, the Fair Sentencing Act reduced the penalties for
crack offenses like Mainor’s (involving less than 28 grams of crack and occurring after a
prior qualifying conviction) to eliminate the mandatory minimum and set a statutory
maximum of 30 years. See 21 U.S.C. § 841(b)(1)(C) (2010); see generally Dorsey v.
United States, 567 U.S. 260, 269 (2012).1 It did not, however, change the sentencing
range for his offenses involving cocaine. See 21 U.S.C. § 841(b)(1)(A)(ii), (b)(1)(B)(ii),
(b)(1)(C). And it applied only to defendants sentenced after August 3, 2010. See
Dorsey, 567 U.S. at 282. Second, in 2018, the First Step Act made certain provisions of
the Fair Sentencing Act retroactive, including its reduction of sentences for crack
offenses. See First Step Act of 2018, § 404, Pub. L. No. 115-391, 132 Stat. 5194, 5222;
see also United States v. Jackson, -- F.3d ---, No. 19-2499, 2020 WL 3563995, at *2 (3d
Cir. July 1, 2020).
1
The distribution-in-a-school-zone statute does prescribe a one-year mandatory
minimum. See 21 U.S.C. § 860(a).
3
Based on these statutory changes, Mainor filed a motion for a reduction of
sentence under 18 U.S.C. § 3582(c). The District Court denied the motion in part and
granted it in part. The Court determined that, while Mainor was eligible for a reduced
term of imprisonment for his crack offense (count 6), it would decline to use its discretion
to adjust that sentence because it would not affect Mainor’s total time in prison. The
Court explained, “even if Mainor’s ten-year[2] sentence on the crack charge were lowered,
the twenty-year mandatory minimum for his powder cocaine offenses would remain
unchanged.” ECF No. 254 (Dist. Ct. Op.) at 6–7. The Court did, however, reduce
Mainor’s term of supervised release. The Court stated that Mainor had been sentenced to
consecutive ten-year terms of supervised release: “a ten-year term for his powder cocaine
offense, the statutory minimum, and a ten-year term for his crack cocaine offense.” Id. at
7. The Court reduced the term of supervised release for the crack offense to 6 years, for a
total term of 16 years. See ECF No. 258 (amended order). Mainor appealed.
We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review
the District Court’s order for abuse of discretion. See Jackson, 2020 WL 3563995, at *2;
see also United States v. Sutton, -- F.3d ---, No. 19-2009, 2020 WL 3428076, at *6 (7th
Cir. June 23, 2020) (“A district court has broad discretion in addressing a First Step Act
motion.”).
2
As we discuss below, the District Court incorrectly recounted the length of some of
Mainor’s terms of imprisonment and supervised release.
4
On appeal, Mainor argues that we should vacate the District Court’s order because
the Court misstated the length of the terms of imprisonment and supervised release at
issue.3 We agree (as does the Government) that the District Court’s recitation was
inaccurate: Mainor’s term of imprisonment for the crack offense is 20 years, not 10, and
he is subject to concurrent 20-year terms of supervised release, not consecutive 10-year
terms. See ECF No. 161 (judgment).
However, we conclude that the District Court’s error is harmless. “A non-
constitutional error is harmless when it is highly probable that the error did not prejudice
the defendant.” United States v. Zabielski, 711 F.3d 381, 387 (3d Cir. 2013) (alteration
omitted) (quoting United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008)); see also
Williams v. United States, 503 U.S. 193, 203 (1992) (explaining that error is harmless if
it “did not affect the district court’s selection of the sentence imposed”); United States v.
Flowers, -- F.3d ---, No. 19-3742, 2020 WL 3428073, at *4 (6th Cir. June 23, 2020)
(applying harmless error on appeal of district court’s denial of motion to reduce sentence
under First Step Act). The District Court made clear that the reason it declined to reduce
Mainor’s term of imprisonment on the crack count was because “nothing the Court does
3
We will consider only the issue that Mainor raised in his opening brief. See Laborers’
Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994) (“An issue is waived unless a party raises it in its opening brief, and for those
purposes a passing reference to an issue will not suffice to bring that issue before this
court.” (quotation marks, alteration omitted); Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the same rules that
apply to all other litigants”).
5
as to Mainor’s crack sentence will affect the total time he spends incarcerated.” ECF No.
254 at 7. That rationale is not affected by the fact that the crack sentence is actually the
same length as, and not shorter than, the other sentences. Thus, we will not disturb the
District Court’s denial of this part of Mainor’s motion.
Likewise, Mainor has made no effort to show that the District Court’s inaccuracy
regarding the length of his terms of supervised release prejudiced him. We agree with the
Government that Mainor was not harmed by the District Court’s order “reduc[ing] the
total term of supervised release from 20 years to 16 years.” Gov’t Br. at 21.4
Accordingly, we will affirm the District Court’s judgment.
4
If anything, the Court’s error may have prejudiced the Government, but since the
Government did not file a cross-appeal (or otherwise object), we need not explore that
matter further. See Greenlaw v. United States, 554 U.S. 237, 240 (2008); United States
v. Gutierrez-Ceja, 711 F.3d 780, 783 (7th Cir. 2013).
6 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3857066/ | Argued October 16, 1931.
This appeal is from a judgment entered for want of a sufficient affidavit of defense.
On March 21, 1928, Norman R. Cromwell, the owner of nine properties situate on Dodson Road, in the County of Philadelphia, executed and delivered to the plaintiff nine bonds and accompanying mortgages covering the premises. On the same date, Cromwell conveyed the premises to the defendant, who held title thereto until June 25, 1929, when she conveyed them to Frances Kalden. When the settlement was made on March 21, 1928, Louis Blaul, the beneficial owner of the property, in order to complete the settlement, borrowed from the defendant the sum of $5,325, and, as security for repayment of the loan, conveyed the title to her. This real estate was subsequently sold at sheriff's sale and the plaintiff, as a mortgagee, was required to pay the taxes assessed on January 1, 1929, which is the basis of this suit.
The affidavit of defense avers that the defendant was never in possession of the property; that at no time did she collect the rents or exercise any ownership over the real estate, except to permit the title to be conveyed to her. She alleged that a verbal agreement was made by John M. Hendricks, her husband, acting not only for Blaul, but for herself. This agreement made by Hendricks with himself as agent for both parties was very indefinite as to its terms and conditions. At any rate, it seems that the defendant was to hold the title solely and only as a trustee for Blaul, until such time as he would pay the sum of $5,325.54, and she and "her nominee or nominees holding title" *Page 312
would, upon the repayment of that sum, reconvey the title to Blaul, his heirs and assigns. It was averred that the plaintiff had knowledge of this oral agreement.
It is contended upon the part of the appellant that she was but a dry trustee under the authority of Rawle v. Renshaw, 15 Pa. Super. 488. In that case, there was a written, but unrecorded, declaration of trust, providing that the registered owner was a bare trustee without a beneficial interest, with no duties or privileges whatever, except to reconvey to the real owner on request. These facts were known to the mortgagee. The case at bar is readily distinguishable from that case, as this defendant had a beneficial interest in the property. The affidavit of defense clearly indicates that the property was conveyed to her to protect her in a loan she had made to the beneficial owner. She could retain the title until that money was repaid to her, or she could have conveyed the legal title when, and to whom, she chose. She was not subject to anyone's dictation until she was repaid. She certainly had an interest therein which the conveyance protected. When one acquires a personal interest in land to which he has title, a dry trust is not created and he cannot escape taxation: Bergdoll v. Pitts., 41 Pa. Super. 257. In the case of Com. Natl. Bank v. Shoemaker, 13 W.N.C. 255, the bank held title as collateral for a loan. The Supreme Court said, "The bank held title to the land by a deed absolute on its face, and also caused it to be registered as an absolute title, in the Registry Bureau, under the 14th March, 1865 (Purd. Dig. 1376-7). By this record of title it became liable for the taxes thereafter assessed thereon, and liable for damages sustained by the mortgagee by reason of their nonpayment."
The appellant contends further that she is not liable, as a first mortgagee is seeking to recover taxes paid *Page 313
by it from one, who, it knew at the time it made the mortgage loan, was, in reality, a second mortgagee. A sufficient answer to that position is that the appellant averred that the property was conveyed to her solely and only as a trustee, not as a mortgagee, and it is upon the affidavit of defense that this appellant must rely. Nor do we think it necessary to discuss whether the affidavit of defense is insufficient for its failure to set forth the terms of the trust, as contended by the appellee, for, in our view, the averment that the defendant had a beneficial interest prevents her from setting up the defense of a bare trust. The notice to the plaintiff of this oral trusteeship has no bearing on this case, in view of the defendant's beneficial interest.
The conclusion of the learned court below is fully sustained by authority. Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3854547/ | Argued April 13, 1925.
This is an appeal from judgment on a verdict for the death of a three-year-old child. Defendant operates a street car line on 18th Street in the City of Erie, turning its cars on a "Y" at the intersection of 18th and Cranberry Streets. Eighteenth Street extends east and west, Cranberry Street intersecting at right angles. From the 18th Street tracks, at two points each a very short distance east and west respectively from the Cranberry Street intersection, switch tracks curve northward into Cranberry Street, forming a triangle of tracks, used to turn cars around. A street car had moved west on 18th Street, and stopped on the east side of Cranberry Street to discharge passengers. At the rear, was a fender tied up against the car. Having discharged passengers, the car crossed Cranberry Street, westward, and stopped at a short distance beyond the switch point; then, to turn around, it reversed and moved over the track curving northward into Cranberry Street. During that operation there were but two employees on the car, the motorman, who from the front platform operated the car as it crossed Cranberry Street and who remained there during the movement north into Cranberry Street, and the conductor, who according to evidence on behalf of plaintiff, stood somewhere about the middle of the car. There was no one on or near the rear platform, which became the front of the car as it moved into Cranberry Street. Just before or about the time the movement from 18th Street into Cranberry Street was begun, witnesses *Page 237
saw the child standing between the tracks directly in front of the car in its course into Cranberry Street. Before bystanders could give an effective alarm to those in charge of the car, it ran over the child. A witness for the defendant testified that the child had hung on to the fender on the rear when it stopped on the east side of 18th Street to discharge passengers, and had so remained until it was jolted off in making the turn into Cranberry Street. We must, however, take the evidence in its aspect most favorably supporting the verdict, and have so stated the facts inferable.
When the car proceeded from 18th Street northward into Cranberry Street, there was no one on what was then the front of the car, to see whether the track was clear. The evidence which the jury may have accepted, shows that the child was then standing between the rails and on part of a public highway used by pedestrians in crossing 18th Street. Over such a place, defendant's car could not move without observation, or warning, if necessary. Several witnesses testified that the forward movement was made without warning. When asked, " How do you turn your car around at 18th and Cranberry?" the motorman testified, "...... when we have a two man car the conductor generally goes to the back end of the car and says `Back up' ......," and he testified that the conductor did so for this movement. The jury was, however, justified by the evidence that neither observation nor warning took place, in concluding that therefore defendant was negligent: Toner v. P.R.R. 263 Pa. 438, 440; Rymowich v. Ry. Co., 231 Pa. 582.
The contributory negligence of the parents could not be declared as matter of law. The parents were in humble circumstances, living near by on 18th Street. There was evidence that the child had but ten minutes before been with its mother, who was ironing in her kitchen; she had six children, the oldest aged nine, to *Page 238
look after, and she had no servant; the child had escaped from her unobserved.
The third assignment must also be overruled. The jury was plainly instructed that plaintiff cannot recover unless defendant was negligent, and even then may not recover, if plaintiff's negligence contributed.
The judgment is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554096/ | NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-AUG-2020
07:51 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF THE ARBITRATION BETWEEN
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Union-Appellant,
and
CITY AND COUNTY OF HONOLULU, DEPT. OF HUMAN
RESOURCES (ROUTE SELECTION) BM-12-02 (2014-022),
Employer-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P. NO. 17-1-0123)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Chan and Wadsworth, JJ.)
Union-Appellant United Public Workers, AFSCME, Local
646, AFL-CIO (UPW) appeals from the April 17, 2018 Final Judgment
(Final Judgment), entered in favor of Employer-Appellee City and
County of Honolulu (the City), by the Circuit Court of the First
Circuit (Circuit Court).1 UPW also challenges the Circuit
1
The Honorable Jeffrey P. Crabtree presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Court's April 17, 2018 Order Denying Motion for Civil Contempt
Citation Mandate for Payment of Monetary Judgment, and for Other
Appropriate Relief (Order Denying Contempt Motion).
UPW raises four points of error on appeal, contending
that the Circuit Court erred by: (1) refusing to give final and
binding effect to the September 1, 2017 First Amended Decision
that was entered in the underlying arbitration proceeding (First
Amended Decision), modifying the deadlines set by the arbitrator,
and collaterally attacking its own November 13, 2017 Amended
Judgment confirming the First Amended Decision (Amended
Judgment); (2) denying UPW's November 24, 2017 request for a
civil contempt remedy; (3) denying UPW's request for mandamus
against the City to comply with the non-monetary aspects of the
Amended Judgment; and (4) denying UPW's November 24, 2017 request
for attorneys' fees and costs.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve UPW's points of error as follows:
(1) UPW argues that the Circuit Court collaterally
attacked the First Amended Decision and the Amended Judgment by
giving the City until January 16, 2018, to demonstrate compliance
with the terms of the First Amended Decision. The First Amended
Decision ordered the City to make certain payments and take other
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
actions within specified periods of time. It is undisputed that
the City did not comply with those deadlines.
A collateral attack is defined as "an attempt to
impeach a judgment or decree in a proceeding not instituted for
the express purpose of annulling, correcting or modifying such
judgment or decree." Kim v. Reilly, 105 Hawai#i 93, 96, 94 P.3d
648, 651 (2004) (citation omitted). As we explained in Smallwood
v. City & County of Honolulu:
The word collateral, in this connection, is always used as
the antithesis of direct, and it is therefore wide enough to
embrace any independent proceeding. To constitute a direct
attack upon a judgment, it is said, it is necessary that a
proceeding be instituted for that very purpose. . . . But
if that action or proceeding has an independent purpose and
contemplates some other relief or result, although the
overturning of the judgment may be important or even
necessary to its success, then the attack upon the judgment
is collateral and falls within the rule. A direct attack on
a judicial proceeding is an attempt to avoid or correct it
in some manner provided by law. A collateral attack on a
judicial proceeding is an attempt to avoid, defeat, or evade
it, or to deny its force and effect in some manner not
provided by law.
118 Hawai#i 139, 147–48, 185 P.3d 887, 895–96 (App. 2008)
(citation omitted).
UPW relies on Kim, 105 Hawai#i at 96-97, 94 P.3d at
651-52, wherein a defendant challenged an underlying judgment,
arguing the amount of the award should be reduced pursuant to
statute, in response to the plaintiff's motion to enforce. The
supreme court held that the defendant's challenge constituted an
improper collateral attack, because the defendant failed to raise
the statute during the arbitration, challenge the confirmation,
or file an appeal. Id. at 96, 94 P.3d at 651. This case is
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
distinguishable from Kim, because here, in response to UPW's
contempt motion, which had the stated goal of enforcing the First
Amended Decision, the City did not challenge the First Amended
Decision; and, in denying the motion, the Circuit Court did not
modify either the First Amended Decision or its judgment
confirming it. The City argued that it intended to comply with
the First Amended Decision, but that it was delayed by
"processing the funding requisitions, obtaining funding
authorizations, and actual 'cutting' of the checks." We cannot
conclude that the City's failure to fully comply with the First
Amended Decision constitutes a collateral attack on the First
Amended Decision. Likewise, the Circuit Court's Amended Judgment
confirmed the First Amended Decision, and awarded additional
attorneys' fees, costs and interest against the City. In denying
the contempt motion and fashioning other enforcement mechanisms,
the Circuit Court did not collaterally attack the First Amended
Decision or the Amended Judgment. The January 16, 2018 deadline
was set to ensure the City's compliance with the Circuit Court's
order that the City fully comply with the payments and actions
set forth in the First Amended Decision. We conclude that, under
the circumstances here, the collateral attack doctrine does not
apply. Accordingly, the first point of error is without merit.
(2) UPW argues that the Circuit Court erred by not
holding the City in contempt for failing to comply with certain
remedial terms of the First Amended Decision, which was confirmed
4
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in the Amended Judgment. The power to hold a party in contempt
is an inherent power of the court to do what is necessary to
carry out justice. LeMay v. Leander, 92 Hawai#i 614, 621, 994
P.2d 546, 553 (2000) (citing Kukui Nuts of Hawaii, Inc. v. R.
Baird & Co., Inc., 6 Haw. App. 431, 436, 726 P.2d 268, 271
(1986)). Whether a party is in civil contempt is reviewed for
an abuse of discretion. Id. at 620, 994 P.2d at 552.
The moving party in a civil contempt action must
establish: "(1) the order with which the contemnor failed to
comply is clear and unambiguous; (2) the proof of noncompliance
is clear and convincing; and (3) the contemnor has not diligently
attempted to comply in a reasonable manner." Id. at 625, 994
P.2d at 557 (citing King v. Allied Vision, Ltd., 65 F.3d 1051,
1058 (2d Cir. 1995)). The movant is "required to establish all
three factors[.]" Maui Muscle Sports Club Kahana, LLC v. Ass'n
of Apartment Owners of Valley Isle Resort, CAAP–13–0000452, 2014
WL 3671565, *11 (Haw. App. July 23, 2014) (mem. op.). These
factors must be proven by clear and convincing evidence. LeMay,
92 Hawai#i at 624–25, 994 P.2d at 556–57 (citation omitted).
The Circuit Court denied the motion for contempt
because it found that its language in the Amended Judgment
ordering the City to comply with the terms of the First Amended
Decision "forthwith" was ambiguous. UPW points to the plain
language meaning of forthwith. Black's Law Dictionary defines
"forthwith" as: "1. Immediately; without delay. 2. Directly;
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promptly; within a reasonable time under the circumstances."
Black's Law Dictionary 725 (9th ed. 2009). While it is clear
that "forthwith" requires prompt action, the Circuit Court
interpreted the use of the word in its own judgment as lacking
sufficient clarity to warrant a finding of contempt.
Whether an action can be considered done forthwith may
depend on the circumstances. In ruling on the contempt motion,
the Circuit Court referred to Hawaii Revised Statutes (HRS)
§ 651-34, the execution statute, to establish a deadline for
compliance with the Amended Judgment. This was not an abuse of
discretion, particularly given that UPW's contempt motion
referred to a writ of execution, and UPW explained that it was
also requesting mandamus relief because execution on the monetary
portion of the Amended Judgment (namely the attorneys' fees owed
to UPW) was not an available remedy against the City.
UPW posits that the Circuit Court should have enforced
the deadlines established in the First Amended Decision.
However, these deadlines had already passed. Moreover, under
Hawaii's contempt jurisprudence, the meaning of the order alleged
to have been violated must be ascertained from the four corners
of the order itself. "[T]o hold a party in civil contempt, there
must be a court decree that sets forth in specific detail an
unequivocal command that the contemnor violated, and the
contemnor must be able to ascertain from the four corners of the
order precisely what acts are forbidden." LeMay, 92 Hawai#i at
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625, 994 P.2d at 557 (citation and internal quotation marks
omitted).
Even if we were to conclude that the Circuit Court's
order effectively extending the deadline for compliance with the
First Amended Decision was an abuse of discretion, any such error
was harmless where the purpose of the contempt motion was
fulfilled. A civil contempt proceeding is intended to provide a
remedy for one of the parties. Hawaii Pub. Emp't Relations Bd.
v. United Pub. Workers, Local 646, 66 Haw. 461, 479, 667 P.2d
783, 795 (1983). In contrast to criminal contempt, which is
intended "to punish past defiance of a court's judicial
authority, thereby vindicating the court," LeMay, 92 Hawai#i at
621, 994 P.2d at 553 (citation omitted), the civil contempt
sanction is intended as a coercive tool to enforce compliance
with an order of the court. "[T]he significant and essential
characteristic of a sanction imposed for civil contempt is that
the penalty can be avoided by compliance with the court order."
Hawaii Pub. Emp't Relations Bd., 66 Haw. at 479, 667 P.2d at 795
(citation omitted) (emphasis in original).
Here, the remedy sought was obtained. When the Circuit
Court entered the Order Denying Contempt Motion on April 17,
2018, the City had complied with the terms of the Amended
Judgment. We conclude that the Circuit Court did not abuse its
discretion in denying the UPW's motion for contempt.
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(3) UPW argues that the Circuit Court wrongfully
denied mandamus relief against the City to enforce compliance
with the First Amended Decision and Amended Judgment. However,
whatever mandamus power the circuit courts once had was
superceded by the 1972 adoption of the Hawai#i Rules of Civil
Procedure (HRCP). HRCP Rule 81.1 expressly abolished the writ of
mandamus in the circuit courts, except when directed to a court
of inferior jurisdiction. Accordingly, we conclude that the
Circuit Court did not err when it refused to issue a writ of
mandumus in this case.
(4) UPW argues that the Circuit Court abused its
discretion in declining to award it attorneys' fees and costs
incurred in bringing its contempt motion. Citing In re Hawai#i
State Teachers Ass'n [(HSTA)], 140 Hawai#i 381, 402, 400 P.3d
582, 603 (2017), UPW argues that public policy favors a grant of
attorneys' fees as a way to "discourage all but the most
meritorious challenges to arbitration awards." This court,
however, has also previously pointed to judicial efficiency as a
policy concern in denying attorneys' fees in an enforcement
action. See In re Arbitration Between United Public Workers,
Local 646, [(UPW)] and City & County of Honolulu, 119 Hawai#i
201, 212, 194 P.3d 1163, 1174 (App. 2008) (citing Rev. Unif.
Arbitration Act (2000) (RUAA), Prefatory Note, 7 U.L.A. 3 (2005))
(goals of arbitration act include "promoting the relative speed,
lower cost, and greater efficiency of the arbitration process"
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and "minimizing court involvement once an arbitration award is
finalized"). We held that the purposes of RUAA § 25, the model
for HRS § 658A-25, were not "subverted" by disallowing attorneys'
fees on an enforcement motion after an arbitration award had been
confirmed. Id. Furthermore, we held that denying attorneys'
fees on the denial of enforcement would harmonize the law on
arbitration with the general policy of prohibiting recovery of
legal fees associated with executing a judgment. Id. at 211, 194
P.3d at 1173 (citing RUAA § 25 cmt. 4, 7 U.L.A. 86). UPW argues
that the more recent precedent in In re HSTA should be applied
instead of the "narrower" reading of In re UPW. However, in In
re HSTA, the issue was whether HRS § 658A-25 authorized
attorneys' fees on appeal from an order confirming an arbitration
award, whereas here, UPW sought fees on a motion to enforce an
arbitration award. In addition, here, although the Circuit Court
did take steps to enforce the Amended Judgment, it did not grant
the remedies requested by UPW in UPW's November 24, 2017 motion.
Under these circumstances, we conclude that the Circuit Court did
not abuse its discretion by not awarding UPW a further attorneys'
fees award in conjunction with the contempt motion.
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For these reasons, the Circuit Court's April 17, 2018
Final Judgment is affirmed.
DATED: Honolulu, Hawai#i, August 7, 2020.
On the briefs:
/s/ Katherine G. Leonard
Herbert R. Takahashi, Presiding Judge
Rebecca L. Covert,
(Takahashi and Covert), /s/ Derrick H.M. Chan
for Union-Appellant. Associate Judge
Ernest H. Nomura, /s/ Clyde J. Wadsworth
Deputy Corporation Counsel, Associate Judge
for Employer-Appellee.
10 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3857047/ | Argued April 15, 1936.
We agree with the conclusions of the referee, board and court of common pleas that the plaintiff is entitled *Page 426
to compensation for the death of her husband. The only question raised on this appeal is whether there was sufficient competent evidence to sustain the referee's findings that the deceased met his death as a result of an accident.
The referee found: "That on October 18, 1930, the [deceased], a man 61 years of age, when loading oxygen cylinders in freight car, some cylinders fell on his left foot, bruising said foot. That as a result of said bruises the [deceased's] left leg became swollen and painful with evidence of infection, and said condition developed into a case of extensive chronic periostitis, which aggravated a pre-existing condition of arteriosclerosis, causing his heart muscles to become gradually worse until the [deceased] died from chronic myocardial insufficiency on February 24, 1933. That said injuries sustained were a direct contributory factor to his death."
We will refer briefly to the facts tending to sustain the findings of the referee. Prior to October 18, 1930, James Lafferty was a laborer in good health. On that day while in the course of his employment with the defendant he was injured by the falling of a heavy iron cap upon his left foot. He was able to work for a few days when the injury to the foot incapacitated him. He was attended for a time by the defendant's physician, was in a hospital for a time and was not able to work again prior to his death on February 24, 1933. Dr. Charles A. White who attended Lafferty from October 9, 1932 until his death testified as follows: "This heart condition was caused by arteriosclerosis which is a hardening of the inner coats of the arteries extended to the coronary arteries which would carry blood or nutriment to the heart muscles. When the coronaria arteries became infected, the heart muscles became affected as well. I believe that this arteriosclerosis was undoubtedly aggravated if it was not caused by this foot injury. I don't *Page 427
know that Mr. Lafferty had any arteriosclerosis before his injury, but I do know he had it in October, 1932, and that the condition of his heart muscles became gradually worse until his death in February in 1933, and the diagnosis generated the seat of this pain and swelling in the foot. In my professional opinion, undoubtedly, had a direct influence on causing this heart lesion to become worse. Q. You would then say from your knowledge of the patient and the history of the case that the condition of his foot contributed directly to his death? A. Yes, I would say it contributed directly to his death."
There was other evidence not as explicit, but tending to corroborate the conclusions of Dr. White. The deceased received compensation for his injuries until February 23, 1933, a total of 117 1/7 weeks. During this time there was a petition to terminate presented by the defendant, and this petition was determined adversely to the defendant by referee, board, and court of common pleas. We cannot understand the testimony of the physicians as meaning anything else than that the existing physical condition of the deceased was aggravated and his death accelerated by the injury received in his employment. Such being the case the claimant is entitled to recover compensation. The fact that the deceased had a chronic ailment which made him more susceptible to an injury than an ordinary person will not defeat his right to compensation. On the contrary, if the pre-existing ailment was aggravated and his death accelerated by the injury, then under the law he was entitled to compensation: Kucinic v. Foundry Co.,110 Pa. Super. 261, 168 A. 344. Also see Zionek v. Coal Co., 105 Pa. Super. 189, 160 A. 154; Johnson v. Orcutt,103 Pa. Super. 507, 157 A. 46; Sepesi v. Coal Co., 114 Pa. Super. 385, 174 A. 590; Lucas v. Coal Co., 118 Pa. Super. 182, 179 A. 876; Bartlinski v. Mining Co., 117 Pa. Super. 437, 177 A. 518. It *Page 428
is not vitally important whether the accident directly caused the arteriosclerosis or aggravated a latent existing condition of the blood vessels or the heart: Flowers v. Canuso, 115 Pa. Super. 234, 175 A. 287. We are all of the opinion that the case was correctly decided by the court below.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3862634/ | Argued March 11, 1924.
The only question involved in this appeal is whether the Workmen's Compensation Board, upon cause shown, may grant a claimant who has been disallowed compensation, but failed to appeal from such decision, a rehearing of his petition after the ten days allowed for taking an appeal have expired. If it may, the judgment of the lower court must be affirmed.
In disposing of the question it must be borne in mind that the Workmen's Compensation Board is not a court and a proceeding under the act creating it is not "litigation" to which established rules and principles of common law practice are applicable: Gairt v. Curry Coal Mining Co., 272 Pa. 494, 498. If the necessary authority has been conferred upon the board, it is not restricted in its action by terms or return days, but may grant a rehearing when the interests of justice require it, within *Page 175
such general limitation as may be imposed by the act. And it is the duty of courts to construe the act liberally, as respects the claimant's right to compensation, having in mind the benevolent and humanitarian purposes of its enactment: Gairt v. Curry Coal Mining Co., supra, p. 498; Blake v. Wilson, 268 Pa. 469, 474; Callihan v. Montgomery, 272 Pa. 56, 59; Clark v. Clearfield Opera House Co., 275 Pa. 244, 246.
Keeping this purpose in mind we are of opinion that express authority to grant a rehearing in such case is given the board in section 426 of the act as amended by the Act of June 26, 1919, P.L. 642, p. 665, which provides: "The board, upon petition of any party and upon cause shown, at any time before the court of common pleas of any county of this Commonwealth to whom an appeal has been taken under the provisions of section 427 of this article shall have taken final action thereon, may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation or other order or ruling, or has sustained or reversed any action of a referee. If the board shall grant a rehearing of any petition from the board's action on which an appeal has been taken to and is pending in, the court of common pleas of any county of this Commonwealth under the provisions of section 427 of this article, the board shall file in such court a certified copy of its order granting such rehearing and it shall thereupon be the duty of such court to cause the record of the case to be remitted to the board."
The appellants contend that this section limits the board, in its grant of a rehearing, to cases which have been appealed to the court of common pleas, but we place no such narrow construction upon it. It does not read, "Whenever an appeal has been taken to the court of common pleas, of any county, and is still pending, the board may, upon petition of any party, upon cause shown, grant a rehearing," etc. The clause relating to an appeal has no such restrictive meaning. It means rather, as it *Page 176
says, that such rehearing may be granted by the board, upon petition and cause shown, at any time, except that if an appeal has been taken to the court of common pleas under section 427, the rehearing must be granted before final action has been taken by such court thereon. This construction is strengthened by the last sentence of the section above quoted. If the whole section is limited in its scope to cases in which appeals have been taken to and are pending in the courts of common pleas, there would be no necessity for inserting the conditional clause, but the duty of the board to file in such court a certified copy of its order granting a rehearing and of the court thereupon to remit the record would apply in all cases. The fact that it was thought necessary to make the distinction is persuasive evidence that the right to grant a rehearing, for cause shown, applies to cases not appealed as well as to those where an appeal is pending.
A fair reading of the section, having in mind its evident purpose, is to authorize a rehearing, at any time, upon petition and cause shown — that is, when justice requires, — of any petition upon which the board has made an award or disallowance of compensation, with this qualification, that if an appeal has been taken to the common pleas, the rehearing must be granted before final action by that court, and in that event, the board shall file in such court a certified copy of its order granting a rehearing and thereupon the court must cause the record to be remitted to the board. The action, thus authorized, was taken by the board in Carlin v. Coxe Bros. Co., 274 Pa. 38, where, at first, it disallowed compensation to the claimant because the causal connection between the accident and the employee's death had not been sufficiently established. Subsequently, on petition and over the protest of the employer, the board ordered a rehearing and allowed compensation and the Supreme Court approved this action. The cases from Illinois and Texas cited by appellants are of no weight because the compensation acts of those states do not confer *Page 177
the authority, on the board given by our amendment of 1919.
But appellants assert that where a claimant has not appealed from the award or disallowance of the referee, the board has made no award or disallowance, and hence section 426 does not apply; but this is sticking in the bark. The referee is simply the agent of the board; his findings and awards or disallowances are not made direct to the parties but are filed with the Workmen's Compensation Bureau (sec. 404) in accordance with the rules and regulations of the board, and copy thereof served by it upon the parties in interest; and the referee's report and award, unappealed from, is considered the action of the board, just as the entry of judgment by the prothonotary for want of an affidavit of defense is on behalf of the court, or the report of an auditor to which no exceptions have been filed is considered as the action of the court. This is clearly the case, for by section 414 (amendment of 1919) it is provided that the board may either refer claim petitions to a referee or hear them itself, except that hearings where the parties agree on the facts, but fail to agree on the compensation payable thereunder (section 411) and on petitions for commutation, (section 412) must be had before the board.
What then is the period of limitation, if any, under the act, within which the board may grant such a rehearing? We think it may be determined by analogy from the decisions of the Supreme Court upon the right of the board to grant a review in other cases. In Gairt v. Curry Coal Mining Co., supra, the claimant was injured on March 10, 1917, and a compensation agreement entered into on May 4, 1917. On July 29, 1918, the compensation authorities made an order that the agreement fixing compensation for total disability should terminate as of July 9, 1918, and payments ceased as of that date. Between December 2, 1918, and March 24, 1919, three separate petitions were presented by the claimant asking for review and modification of said order of July 29, 1918, *Page 178
all of which were refused. No appeal was taken by the claimant from any of said orders. On October 10, 1919, he presented a petition to reinstate the original agreement, and on April 24, 1920, the board acting thereon found that the claimant was totally and permanently disabled and made an order reinstating the compensation agreement as of July 9, 1918. In passing upon the right of the board to review its order after such a lapse of time the Supreme Court said: "The relevant legislation clearly contemplates that, after a compensation agreement has been filed, or an order for compensation made, persons affected may apply for review and modification during the time the agreement or order has to run"; and the court approved these extracts from the opinion of the chairman of the board in that case: "A disability agreement contemplates a total payment of compensation to the claimant for a period of 500 weeks...... When a workman is injured and a compensation agreement is entered into, it is within the minds of the parties, or at least the law imputes the intention to the parties, that such agreement may run 500 weeks, if the injury develops total disability for that length of time; so that, when the board, either of itself, or by one of its referees, relieves the employer of such payment, it merely suspends that payment or that obligation, waiting further developments of injuries." In Hughes v. American International Shipbuilding Co., 270 Pa. 27, it was held that the limitation of one year imposed by section 315 of the act upon claims for compensation did not apply to cases where compensation agreements or claim petitions had been filed. And in Chase v. Emery Mfg. Co., 271 Pa. 265, 269, the court said: "There is no limitation of time on the right of review," probably intending thereby, within the limit of 500 weeks contemplated for total disability. But, if it should be held that the petition for rehearing must be presented within the period fixed by law for compensation with respect to the particular disability suffered, then in this case it would be 175 weeks (for the *Page 179
loss of one hand, section 306, c) and the petition would still be in time.
The facts in this case fully warrant the action of the board upon the rehearing of the case. At the original hearing the claimant was not represented by counsel; the foreman to whom he had immediately reported the injury to his hand and who had communicated such report to the employer was not present as a witness; there was some doubt at the time whether the abscess then on claimant's hand was caused by the injury or was tuberculous in character. At that stage of the disability it was difficult to determine. Some of the physicians diagnosed the abscess as tubercular and testified that, if so, it was of longer standing than the date of the alleged accident. The referee reluctantly disallowed the claim on the ground that it had not been sufficiently established that the disability was due to the accident. After the order of disallowance the hand grew worse, was operated on about a year after the hearing, and on July 3, 1922, about a year and three months after the claim was dismissed, was amputated, and it was found from a bacterial test of the diseased tissue at the time of amputation and of the claimant's sputum, that he was not tubercular. The surgeon who saw the injured hand two days after the accident and who subsequently performed the amputation testified that he was now satisfied there was a direct connection betwen the injury and the disability, necessitating the amputation of the hand; that in his opinion there was neither a tubercular or syphilitic involvement, but that the disability resulting in the loss of claimant's hand followed and was caused by the injury to the palmar surface of his hand, as testified to by him and the foreman.
We are satisfied that our construction of section 426 as above is warranted by the language used and is in accord with the general scheme of the act as amended in 1919, and the decisions of the Supreme Court construing it. We find, in the other sections of the act as amended, *Page 180
the utmost liberality extended the claimant in every other contingency; and under their authority, relief has been granted in very many cases by way of review, long after the time for appealing from the order or decision complained of had expired. A few cases have already been referred to. Others may be found in Miller v. Pittsburgh Coal Co., 77 Pa. Super. 51; Parlovich v. Phila. R.C. I. Co., 76 Pa. Super. 86; Dime T. S.D. Co. v. Phila. R.C. I. Co., 78 Pa. Super. 124; Sarnis v. Phila. R.C. I. Co., 80 Pa. Super. 228; Stinger v. Rinold Bros., 80 Pa. Super. 420. The amendment of 1919 generously gives opportunity to a claimant on reversal of an award in his favor to present additional evidence in support of his claim: Kuca v. L.V. Coal Co., 268 Pa. 163; and section 426 unquestionably authorizes a rehearing, even when an appeal is pending in the common pleas. Is it unreasonable that opportunity for relief should be provided in the act for the claimant who has been disallowed compensation, but is unable to demonstrate the injustice of the order until after the ten days allowed for an appeal have expired? To so hold could only militate against the claimant, for it is admitted that the employer can always, for cause shown, secure a review of an award of compensation; whereas if disallowed, the only party seeking a rehearing would be the claimant. The circumstances justifying a rehearing would, of course, have to be exceptional, and the board can be trusted to see that the privilege is not abused.
Judgment affirmed at the costs of the appellants. *Page 181 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/50243/ | 488 F.3d 680
SCOTTSDALE INSURANCE CO., Plaintiff-Appellant,v.KNOX PARK CONSTRUCTION, INC.; et al., Defendants,Knox Park Construction, Inc., formerly known as City Homebuilders Construction, Inc., Defendant-Appellant,v.Landmark Insurance Company, Defendant-Appellee.
No. 05-10929.
United States Court of Appeals, Fifth Circuit.
June 5, 2007.
Michael Forest Nelson (argued), Burt Barr & Associates, Dallas, TX, for Scottsdale Ins. Co.
Mark Allen Ticer (argued), Law Office of Mark A. Ticer, Dallas, TX, for Knox Park Constr., Inc.
Oscar Rey Rodriguez, Walter A. Herring, Barbara Pilo (argued), Fulbright & Jaworski, Dallas, TX, for Landmark Ins. Co.
Appeal from the United States District Court for the Northern District of Texas.
Before GARWOOD, WIENER*, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
1
In this declaratory judgment action, the district court granted two motions for summary judgment by Landmark Insurance Co. ("Landmark") and denied a cross-motion by Scottsdale Insurance Co. ("Scottsdale"). The court concluded that Landmark did not owe a duty to defend and was not obligated to cover breach of warranty claims brought in an underlying suit against Shade Tree Electric, Inc. ("Shade Tree"), which was the insured of both Scottsdale and Landmark. Knox Park Construction Co. ("Knox Park"), who had asserted the breach of warranty claims, had joined Scottsdale's cross-motion concerning the coverage issue. Scottsdale and Knox Park appeal. We dismiss the appeal of Knox Park, and as to the appeal of Scottsdale, we affirm in part and reverse in part.
I. FACTS AND PROCEEDINGS
2
In an underlying state court action, Knox Park sued Shade Tree after identifying construction defects in work performed by Shade Tree for Knox Park. Knox Park asserted, inter alia, negligence, breach of warranty, and breach of contract causes of action. In September 2001, Scottsdale sought a declaratory judgment in federal court regarding its duties to defend and/or indemnify its insured, Shade Tree,1 in the underlying dispute. Scottsdale was Shade Tree's primary insurer, and Knox Park and Shade Tree were the original named defendants in the declaratory judgment action.
3
In December 2002, Scottsdale filed an amended complaint in the declaratory judgment action, adding Landmark, another of Shade Tree's insurers, as a defendant. The initial and amended federal complaints together asserted that Landmark owed an obligation to defend and indemnify Shade Tree and that Scottsdale did not. In the federal action, Knox Park never filed a cross-claim against its co-defendant Landmark.
4
Landmark moved for partial summary judgment, arguing that Scottsdale, and not Landmark, owed a duty to defend Shade Tree in the underlying state court suit. The district court granted Landmark's motion and later administratively closed the case pending the resolution of the case in state court. Scottsdale, Shade Tree, and Knox Park later settled the state court action for $535,000. The settlement agreement provided that Scottsdale would pay $535,000 to Knox Park. In exchange, Knox Park released Shade Tree and Scottsdale from all liability. Landmark was not a party to the agreement and, consequently, received no favors from the parties to it. Knox Park reserved the right to recover the difference between $535,000 and $1.2 million from Landmark alone. Scottsdale reserved its right to recoup part of the $535,000 in settlement funds from Landmark in the federal action.
5
Following the settlement, the district court re-opened the federal action, and Landmark filed a second motion for summary judgment, arguing that (1) Scottsdale had not shown an "ultimate defined loss" in excess of the Scottsdale policy's limit that would trigger coverage under the Landmark policy; (2) Scottsdale had not complied with all conditions precedent to recovery in the Landmark policy; and (3) Scottsdale had not shown that Shade Tree was the insured in the Landmark policy. Scottsdale opposed and filed a cross-motion for summary judgment against Landmark; Knox Park purported to join the cross-motion, though it had never filed a claim against Landmark.
6
Reaching only the first of Landmark's arguments, the district court found that Scottsdale had failed to demonstrate an "ultimate net loss" in excess of the limit reserved to the Scottsdale policy and granted summary judgment in favor of Landmark.
II. STANDARD OF REVIEW
7
Questions of standing are reviewed de novo. Maiz v. Virani, 311 F.3d 334, 338 (5th Cir.2002). The district court's grant of summary judgment is also reviewed de novo. Morris v. Equifax Info. Servs., LLC, 457 F.3d 460, 464 (5th Cir. 2006). Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED R. CIV. P. 56(c). The parties do not dispute that Texas law applies to this diversity case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
III. DISCUSSION
8
Three issues are raised by the parties: (1) Landmark argues that Knox Park does not have standing to appeal; (2) Scottsdale and Knox Park assert that the district court's grant of summary judgment on the coverage issue was erroneous; and (3) Scottsdale alone argues that the district court's grant of summary judgment on the duty to defend issue was in error.
A. Standing
9
Whether a party has standing to appeal involves the question of justiciability, namely, "whether the plaintiff has made out a `case or controversy' between himself and the defendant within the meaning of Article III." Rohm & Hass Tex., Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 208 (5th Cir.1994). "Merely because a party appears in the district court proceedings does not mean that the party automatically has standing to appeal the judgment rendered by that court." Id. There must be "some threatened or actual injury resulting from the putatively illegal action," Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (internal quotation omitted), and a litigant may not merely "champion the rights of another," Ortiz Bros., 32 F.3d at 208. Regarding the injury required, "[a]n indirect financial stake in another party's claims is insufficient to create standing on appeal." Id. (alteration in original) (internal quotation omitted). "[T]he injury or threat of injury must be both real and immediate[,] not conjectural or hypothetical." Id. (internal quotation omitted).
10
We agree with Landmark that Knox Park has no standing to appeal. Knox Park has never filed a cross-claim against Landmark. Instead, Knox Park joined Scottsdale's motion for summary judgment on Scottsdale's claim that sought to establish that the Landmark policy covers breach of warranty damages and, consequently, that Landmark must indemnify Scottsdale for the amount Scottsdale paid to Knox Park for such damages. Knox Park, however, cannot champion a claim brought by Scottsdale. Id. at 208 & n. 9. Knox Park does not gain anything if Scottsdale prevails and wins indemnity from Landmark because Knox Park has released Scottsdale from liability.
11
Without a claim of its own in the federal litigation, Knox Park has only an "indirect financial stake" in the resolution of the coverage dispute through its ability to litigate its claims in the future. Id. at 208 (internal quotation omitted). The district court's judgment concerned whether the Landmark policy covered breach of warranty damages caused by the insured. Because Knox Park is neither the insured nor an insurer in this dispute, a determination that the Landmark policy covers breach of warranty damages does not automatically result in a recovery by Knox Park of the damages that it preserved in the state court settlement agreement and now seeks on appeal. Without a claim, Knox Park can only posit that a favorable coverage ruling here is likely to later result in its recovery of damages from Landmark after a settlement or further litigation.
12
Knox Park raises some arguments in support of standing, all of which are meritless. Knox Park contends that a holding that it has no standing could result in conflicting judgments, speculating that if it is dismissed and this court holds that the Landmark policy does not cover breach of warranty damages, a subsequent suit between Knox Park and Landmark could end with a contrary result. A potential for conflicting results, however, does not confer standing without a direct, real, and immediate injury. See id. The test for standing focuses on "whether the plaintiff has `alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction," Warth, 422 U.S. at 498, 95 S. Ct. 2197 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)), not on whether the result may possibly conflict with that in a hypothetical future lawsuit.
13
Knox Park also argues that its failure to file a claim against Landmark is not fatal because the Federal Rules render cross-claims permissive and because it does not need its own claim, since Scottsdale's complaint sought declarations regarding all parties' rights and duties. Knox Park is correct that cross-claims are permissive, but their permissiveness speaks not to whether relief can be granted when there is no claim filed but to whether those claims can be brought in subsequent litigation. See Dunn v. Sears, Roebuck & Co., 645 F.2d 511, 512 n. 1 (5th Cir.1981) ("[C]ross claims are permissive rather than compulsory[,] and a party to an action has the option to pursue [them] in an independent action.").
14
Knox Park's argument that it has standing based on Scottsdale's request for declarations of all parties' rights and duties is also flawed. Declaratory judgment does not exist to allow courts to decide rights between two co-defendants when they have not sought to have their rights declared. The Declaratory Judgment Act provides that "any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a) (emphasis added). Similarly, summary judgment is available only for parties who have filed a claim. See FED.R.CIV.P. 56(a) ("A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may ... move with or without supporting affidavits for a summary judgment...."). Knox Park and Landmark did not formally seek to have their rights vis-à-vis one another determined by the district court. Knox Park's appeal is dismissed.
B. Coverage
15
The resolution of this issue depends entirely on language in the policies. The district court granted Landmark's motion for summary judgment and denied Scottsdale and Knox Park's motion for summary judgment on the issue of whether the Landmark policy covered any of Knox Park's claims against Shade Tree. The court found that Scottsdale presented no evidence of a loss that would trigger the Landmark policy, which the district court found to exist for damages caused by the insured that exceeded $1,000,000. Scottsdale challenges this ruling, contending that the breach of warranty damages were covered by the Landmark policy and not the Scottsdale policy. Landmark is therefore required, according to Scottsdale, to indemnify it for the portion of the $535,000 paid to Knox Park that represents payments for breach of warranty damages.
16
(1) Landmark's subrogation arguments
17
Landmark argues that Scottsdale's right to indemnification is based on Scottsdale's contractual subrogation to the rights of its insured, Shade Tree, and that the settlement agreement released Shade Tree from liability, thus extinguishing any subrogation rights.
18
Landmark's argument is unavailing, however, because even assuming Scottsdale had no contractual right of subrogation on the basis of a release of liability in favor of Shade Tree, it can equitably subrogate to the rights of Shade Tree to enforce the Landmark policy. See Employers Cas. Co. v. Transport Ins. Co., 444 S.W.2d 606, 610 (Tex.1969) (noting that if the policy in question did not allow contractual subrogation, equitable subrogation applies). "The doctrine of subrogation is given a liberal application, and is broad enough to include every instance in which one person, not acting voluntarily, has paid a debt for which another was primarily liable and which in equity and good conscience should have been discharged by the latter." Liberty Mut. Ins. Co. v. Gen. Ins. Corp., 517 S.W.2d 791, 797 (Tex.App. 1974) (internal quotation omitted); see also Am. Indem. Lloyds v. Travelers Prop. & Cas. Ins. Co., 335 F.3d 429, 435 (5th Cir. 2003) (noting that when two primary insurers of the same insured settle a claim and one insurer pays "more than its share," the other insurer is entitled to recover the excess paid). If the Landmark policy covers the breach of warranty claims, Scottsdale is entitled to recover, since Scottsdale paid the debt on those claims.
19
(2) The Landmark policy
20
Two types of insurance policies are at issue: the Scottsdale primary policy and the Landmark policy, which is labeled an umbrella policy. Umbrella policies can provide horizontal coverage, even though the policy limits of the primary policy have not been exhausted, in situations where the primary policy does not cover claims that are covered by the umbrella policy. See, e.g., Mission Nat'l Ins. Co. v. Duke Transp. Co., 792 F.2d 550, 552 (5th Cir. 1986) (applying Louisiana law).
21
The relevant portion of the Landmark policy provides:
22
We will pay those sums the insured becomes legally obligated to pay for "ultimate net loss"2 in excess of the "retained limit" because of "bodily injury" or "property damage" to which this insurance applies ....
23
"Retained limit" means the greater of:
24
a. The sum of amounts applicable to any "claim" or "suit" from:
25
(1) "Underlying insurance", whether such "underlying insurance" is collectible or not; and
26
(2) Other collectible primary insurance; or
27
b. The "self-insured retention" ....3
28
"Underlying insurance": means the coverage(s) afforded under [designated] insurance policies ....
29
(emphasis added). The parties do not dispute the district court's conclusion that the Scottsdale policy is the only designated policy referred to in the definition of "underlying insurance."
30
The coverage issue turns on (1) whether "coverage(s) afforded" means insurance coverage provided, and not excluded, by the Scottsdale policy for particular categories of liability, or (2) whether, taking into consideration the "underlying insurance" definition's reference to "coverage(s) afforded," the Landmark policy is not triggered until the total amount of coverage afforded by the Scottsdale policy for claims in all categories is exhausted.
31
Scottsdale asserts that the district court erred by not specifically considering the definition of "underlying insurance," which is "coverage(s) afforded" by the Scottsdale policy. Because "[r]etained limit" is defined with reference to "underlying insurance" and the Landmark policy provides coverage for damages in excess of the retained limit, Scottsdale argues, the Landmark policy provides horizontal coverage when the Scottsdale policy provides no coverage for a given type of claim. Per Scottsdale's view, "coverage(s) afforded" means the insurance provided, and not excluded, by the Scottsdale policy.
32
The contrary reading of the phrase "coverage(s) afforded" in the definition of "underlying insurance" is one in which "coverage(s) afforded" means the total monetary coverage, i.e., policy limit, afforded by the "underlying insurance," notwithstanding any coverage exclusions. Thus, the Landmark policy, as the district court found, would only provide coverage when the total damages (both covered or not covered by the Scottsdale policy) exceeded the Scottsdale policy limit of $1,000,000.
33
The latter reading of the policy is faulty. It confuses the concepts of liability limits and coverage limits, which are distinct. Wells v. Gulf Ins. Co., 484 F.3d 313, 315 (5th Cir.2007). Insurance policies, moreover, "are strictly construed against the insurer in order to avoid exclusion of coverage," see Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984), and Landmark drafted the policy.
34
Interpreting "underlying insurance" to mean the insurance coverage provided and not excluded properly gives meaning to the words "coverage(s) afforded" and resolves any uncertainty about the policy's language in favor of coverage.4 Also, the Landmark policy excludes from its coverage situations in which the primary insurance becomes uncollectible, due to, inter alia, insolvency. It defines "retained limit" with reference to "`[u]nderlying insurance,' whether such `underlying insurance' is collectible or not." Applicability, collectibility, recoverability, and coverage are concepts used to define the scope of horizontal coverage. See Duke Transp. Co., 792 F.2d at 552-53. Landmark only specified non-collectible underlying insurance. It could have added language like "whether covered or not" but did not do so.
35
We hold that the district court erred in granting summary judgment in favor of Landmark on the issue of whether the Landmark policy provided coverage for breach of warranty damages when "retained limit" was defined as "coverage(s) afforded" by the "underlying insurance." That leaves the issue of whether the Scottsdale policy covers the breach of warranty claims at issue. If it does not, the Landmark policy covers horizontally.
36
(3) The Scottsdale policy
37
Scottsdale contends that the Scottsdale policy and the Landmark policy differ in one important respect that requires a holding that the former does not cover breach of warranty damages and the latter does. That difference is in the policies' exclusions on "property damage." Scottsdale's argument is that the Scottsdale policy's "property damage" exclusion is broader than the corresponding exclusion in the Landmark policy because of the policies' respective definitions of "your work," a term that forms part of both policies' property damage exclusions. The Scottsdale policy's definition of "your work" includes "[w]arranties or representations made at any time with respect to the fitness, quality, durability, performance or use of `your work.'" Landmark does not argue this point; thus it concedes that the Scottsdale policy excludes damages arising from such warranties.
38
The Landmark policy's definition of "your work" applicable to the property damage exclusion does not include warranties and representations, and therefore the Landmark policy does not exclude damage from such acts. Since the damages at issue are breach of warranty damages, the Landmark policy covers.
39
(4) Landmark's alternate bases to affirm
40
The Landmark policy requires, as a condition precedent to liability, that the "ultimate net loss" be finally determined by actual trial or by "written agreement of the insured, the claimant or the claimant's legal representative and us [Landmark]" (hereinafter, "Consent Clause"). Landmark argues that Scottsdale did not satisfy the Consent Clause because there was no trial in the underlying suit and Scottsdale did not obtain any consent to the settlement agreement.5 Landmark is correct that there was no trial and, though Landmark demanded settlement within the Scottsdale policy's limits, it was not a party to the state court agreement and did not consent to the settlement.
41
Nonetheless, Landmark waived its right to deny coverage on the basis of the Consent Clause pursuant to the rule in Gulf Insurance Co. v. Parker Products, Inc., 498 S.W.2d 676, 679 (Tex.1973). Under Gulf Insurance, an insurer can require an insured to comply with a consent clause "for its own protection, but it may not do so after it is given the opportunity to defend the suit or to agree to the settlement and refuses to do either on the erroneous ground that it has no responsibility under the policy." Id. The policy behind the waiver of consent clauses is as follows:
42
The rationale behind holding to this particular waiver theory is that a claimant should not be required to approach his insurer, hat in hand, and request consent to settle with another when he has already been told in essence, that the insurer is not concerned, and he is to go his way. It is difficult to see why an insurer should be allowed, on the one hand, to deny liability and thus, in the eyes of the insured breach his contract and, at the same time, on the other hand, be allowed to insist that the insured honor all his contractual commitments .... [I]n the case of existent, denied liability the denial is a breach of contract on the part of the insurer and its breach should[,] by rights, relieve the insured of the punitive effects of his failure to comply with consent provisions of the insurance policy.
43
Ford v. State Farm Mut. Auto. Ins. Co., 550 S.W.2d 663, 666 (Tex.1977) (ellipses in original and internal quotation omitted). Given that Landmark demanded settlement within the Scottsdale policy's limit and did not provide coverage below that limit, Landmark's refusal to cover was motivated by its erroneous view that coverage existed only for liability in excess of $1,000,000. Also, Landmark had an opportunity to agree to a settlement since it demanded one. Landmark cannot invoke the Consent Clause while simultaneously refusing to cover breach of warranty damages. See Gulf Ins., 498 S.W.2d at 679; see also Ford, 550 S.W.2d at 666.
C. Landmark's duty to defend
44
The district court granted summary judgment in favor of Landmark on Scottsdale's claim that Landmark owed a duty to defend Shade Tree. The district court found that Scottsdale had a duty to defend Shade Tree because at least some of Knox Park's claims were not excluded by the Scottsdale policy.
45
The district court found that the Landmark policy did not confer a duty to defend because its terms limited the duty to situations where the "underlying insurance" is exhausted. Scottsdale challenges this finding, contending that Landmark owes Scottsdale a pro rata portion of the attorneys fees Scottsdale expended defending Shade Tree on the breach of warranty claims, since those claims were covered by the Landmark policy. The Landmark policy provides:
46
We have a duty to defend the insured [Shade Tree] against any "suits" to which this insurance applies:
47
(a) But which are not covered by any "underlying insurance" shown in the Declarations or by any other applicable primary policies that may apply; or
48
(b) If the applicable limit of "underlying insurance" is exhausted.
49
As noted above, the definition of "underlying insurance" specifically refers to the Scottsdale policy, and the parties agree that the definition refers to no other policies.
50
Scottsdale seizes on the Landmark policy's acknowledgment of a duty to defend under (a) or (b) and argues that the district court's conclusion based on (b) — no exhaustion of the "underlying insurance" policy's limits — ignores the possibility of a duty to defend under (a). Scottsdale contends that subsection (a) of the Landmark policy provides a duty to defend in situations, such as the one here, where the primary policy does not provide coverage for particular claims. It does not argue that subsection (b) confers a duty to defend.
51
Scottsdale's argument is flawed. At least some of the claims in the state court suit were covered by the Scottsdale policy. As such, Scottsdale had a duty to defend the entire suit. See, e.g., Enserch Corp. v. Shand Morahan & Co., 952 F.2d 1485, 1492 (5th Cir.1992) ("If any allegation in the complaint is even potentially covered by the policy then the insurer has a duty to defend its insured."). Under the plain terms of subsection (a) in the Landmark policy, Landmark has no duty to defend when a suit is covered by "any `underlying insurance.'" Because the Scottsdale policy covers the state court suit, the Landmark policy provides that Landmark has no duty to defend Shade Tree. This is so even though, as discussed supra, the Landmark policy covers breach of warranty claims that the Scottsdale policy excludes from coverage, since the duty to defend in the Landmark policy is determined on a per suit, rather than a per claim, basis.6
IV. CONCLUSION
52
We DISMISS Knox Park's appeal for lack of standing. We AFFIRM the district court's judgment that concluded Landmark had no duty to defend Shade Tree, we REVERSE the judgment that concluded the Landmark policy did not cover breach of warranty damages, and we REMAND for proceedings not inconsistent with this opinion.
Notes:
*
Judge Wiener concurs in the judgment only
1
Shade Tree has multiple d/b/a aliases that include "Ace Electric & Plumbing" and "Ace Electric & Plumbing HVAC."
2
"Ultimate net loss" is defined as "the total amount of damages for which the insured is legally liable in payment of `bodily injury', `property damage' or `advertising injury.'"
3
There is no "[o]ther collectible primary insurance," and the "self-insured retention" is not applicable, since it is less than the amount from "underlying insurance."
4
Under Texas law, when a policy is susceptible to more than one reasonable interpretation, courts must resolve the uncertainty by adopting the construction that favors coverageSee, e.g., Nat'l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). Assuming both interpretations are plausible, Scottsdale's interpretation that the Landmark policy provides horizontal coverage should prevail.
5
Landmark also argues that the insured on the Landmark policy was different from the insured on the Scottsdale policy. This contention is based on the fact that Shade Tree had multiple d/b/a aliases, one of which was the Scottsdale insured and a separate one of which was the Landmark insured. This argument does not require a holding that Shade Tree is not a Landmark insured since a slight variation of an assumed name does not prevent coverage when the true identity behind the assumed names is the sameSee Scottsdale Ins. Co. v. Sessions, 331 F. Supp. 2d 479, 486 (N.D.Tex.2003), aff'd, Scottsdale Ins. Co. v. Williams, 108 Fed. Appx. 909 (5th Cir. 2004); see also Dillard v. Smith, 146 Tex. 227, 205 S.W.2d 366, 367-68 (1947) (holding that, under Texas law, a person doing business under an assumed name can be sued under the assumed name, his natural name, or both).
6
The cases cited by Scottsdale that allocate attorneys fees among insurers are inapposite. InCoastal Iron Works, Inc. v. Petty Ray Geophysical, 783 F.2d 577, 585-86 (5th Cir. 1986), the court split attorneys fees between two insurers, but, unlike here, the insurance policies conferred on both insurers a duty to defend. In Hardware Dealers Mutual Fire Insurance Co. v. Farmers Insurance Exchange, 444 S.W.2d 583, 590 (Tex.1969), both insurers' policies entirely covered the insured without the distinction here that one policy covered certain claims and another covered different claims.
53
GARWOOD, Circuit Judge, concurring in part and dissenting in part:
54
I join in all of Judge Clement's well considered opinion except as follows.
55
I disagree that Landmark's demand that Scottsdale accept a settlement within Scottsdale's policy limits constituted a denial of coverage on Landmark's part or a waiver of its rights under the actual trial or approved settlement clause of its policy. And, the fact that Landmark had the opportunity to agree to a settlement but declined to does not, of itself, mean anything more than that it exercised the rights its policy gave it.
56
However, in my opinion Landmark had a duty to defend Shade Tree against Knox Park's suit in which Knox Park made breach of warranty claims against Shade Tree. Landmark's policy provided the primary, and the only, liability or indemnity coverage for such claims. In my view, a reasonable construction of the Landmark policy is that, for this purpose, the Knox Park suit was not "covered by" the Scottsdale policy because although that policy covered some of the claims in the suit it did not cover the breach of warranty claims, which only the Landmark policy covered. While a contrary construction of the Landmark policy is also reasonable, we are to adopt that reasonable construction which favors the insured and comports with the settled Texas rule that where primary liability coverage is concerned there is no duty to indemnify absent a duty to defend. Landmark refused to perform and repudiated its duty to defend Shade Tree and for that reason waived its rights under the actual trial or approved settlement clause of its policy. See, e.g., Gulf Ins. Co. v. Parker Products, 498 S.W.2d 676, 679 (Tex.1973). | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4554098/ | HTTP/1.1 200
Date: Fri, 07 Aug 2020 19:07:48 GMT
Content-Type: application/pdf | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3859327/ | Argued April 20, 1927.
The plaintiff in his statement of the cause of action averred that a Ford car which he owned was being driven by his employe over a grade crossing of the track of the defendant company when a train operated by the employes of the defendant company collided with the said automobile, slightly damaging same; that before any material damage was done to said automobile the train was brought to a stop and the automobile (hereinafter designated as the car) inspected by the driver; and the driver requested the train crew to assist him in removing the car from the tracks; that the employes of the defendant company refused such assistance, and thereupon, in a careless and negligent manner, and with a total disregard for the property of said plaintiff, caused the train to again collide with the said automobile and entirely destroy the same. The plaintiff recovered a verdict and judgment in the court below and the defendant appeals.
The evidence produced by the plaintiff clearly established that the driver of his car neither stopped, looked nor listened as he approached the grade crossing. An engine of the defendant company moving eastward, with the tender in front, was approaching the crossing from the west. The driver does not appear to have looked in that direction until his car was about three or four feet from the track, at which point he saw the tender of the locomotive appear in the crossing; he did not have his car under such control as to stop there and in his testimony thus explains what he did: "Q. And in order to avoid running into it headlong, you turned your car and ran parallel with it to the right? A. Yes, sir." He thus drove to the right, eastward and when the front part of his car had passed from the public highway on to the right of way of defendant company the tender of the locomotive struck the left side of the car near the front door; the car was whirled round so that the front end of it was *Page 132
pushed into the bank and the rear of it was wedged against the drive wheels of the engine; it was wedged in between the bank and the engine. The locomotive had been moving slowly and was stopped when the plaintiff's car was in the position above indicated, the front of the car being against the bank and the back of it against the locomotive; the left rear wheel being crushed and that corner of the car lifted from the ground eighteen inches or two feet, resting upon the drive rod connecting the wheels of the locomotive. The driver and the passengers who were in the car then got out of the car and had suffered no injuries to their persons. The testimony of the driver directly contradicted the averment of plaintiff's statement that the employes of the defendant company had refused to assist in the attempt to remove the car from its position. His testimony on this point was to the effect: "Q. Well, now, after these men in the automobile and the train crew came, what did you do? A. Why, we were going to lift the car to one side. Q. Who were going to lift it? A. Myself and some of the men that were standing around, and the train crew. Q. All right. A. And it seemed to be stuck, or something. Q. Well, did you make any effort to move the car? A. Yes, sir, when it was stuck why I went to hunt for a pry or something to pry it loose." This witness did not testify that he had notified the train crew that he was going to get a pry or anything to be of assistance in removing the car from the position in which it was wedged between the engine and the bank. There was no evidence from which a jury should have been permitted to infer that those operating the locomotive had been guilty of any negligence as they approached the grade crossing.
The learned counsel for the appellee speaks in his paper book of two collisions. It is conceded on behalf of appellee that there could be no recovery for the damages resulting from what is called the first *Page 133
collision. The contention on behalf of plaintiff is that the damages resulting from what is called the first collision were trifling, and that after the locomotive had come to a stop and the car of the plaintiff, being then only slightly damaged, was wedged in between the bank and the locomotive, it was the duty of those operating the locomotive to keep it standing upon the track and wait until the driver obtained some means for removing the car when it had been found that the men could not lift it with their hands. It is further contended that if the locomotive had been moved westwardly, instead of eastwardly, the pressure upon the automobile would have been relieved and it could then have been removed in such a manner as to prevent further damage. We have carefully studied the evidence and find nothing upon which to base the suggestion that there were two collisions. The first collision, which resulted exclusively from the negligence of plaintiff's driver, knocked the plaintiff's car from the track, dragged it some distance and when the locomotive was stopped the tender and part of the locomotive had passed beyond the car and the back of the car was in some way entangled with the driving rod or driving wheels of the locomotive. This was all the result of one collision and left the car in actual contact with the locomotive. The evidence clearly establishes that the train crew kept the locomotive standing there ten or fifteen minutes and it is to be kept in mind that locomotives and trains cannot be kept standing indefinitely, thus suspending public transportation. The testimony produced by the plaintiff established that the train crew made an effort to lift the car of the plaintiff out of the way and they, with the assistance of others, were unable to move it. They were not bound to wait indefinitely the return of the driver with something which might possibly aid in removing the car. The negligence of plaintiff's employe was the natural, primary, and proximate cause of the entire occurrence. *Page 134
The collision naturally involved the probability of the car becoming entangled with the locomotive in such a manner that it would be difficult to remove it and that further damage to the car was likely to follow. The inquiry must always be, whether there was any intermediate cause, disconnected with the primary fault and self-operating, which produced the injury: Bunting v. Hogsett, 139 Pa. 363. The rule to stop, look and listen, is not a rule of evidence but a rule of law, peremptory, absolute and unbending; and it cannot be ignored, evaded, or pared away by distinctions and exceptions: Atlantic Refining Co. v. N.Y.C.
St. L.R.R. Co., 67 Pa. Super. 320.
When the driver drove the car from the public highway on to the right of way of the defendant company he became a trespasser and the railroad would only be liable for damages wantonly and wilfully inflicted. When the tender and part of the locomotive had already passed the car before being brought to a full stop, it may be possible that less damage would have been done the car had the locomotive and tender moved back westwardly, instead of proceeding eastwardly, the direction in which they had been previously going, but the determination of that question would involve an exercise of judgment upon the part of the employes of the railroad company and for a mere mistake in judgment their employer would not be liable. The point submitted by the defendant requesting binding instructions ought to have been affirmed.
It being conceded by the plaintiff that there could be no recovery for any damage to the car resulting from the accident prior to the removal of the locomotive in the easterly direction, after it had been brought to a full stop, the burden was upon the plaintiff to produce evidence establishing the value of the car after what is called the first collision. The evidence as to the condition of the car after it had been struck by both the locomotive and tender and wedged into the *Page 135
bank by the side of the right of way was most unsatisfactory. The driver, when interrogated on that point, testified: "Q. Did you examine the car after the first collision? A. Not a thorough examination, but I looked at it. Q. What was the damage that you noticed when you first looked at the car? A. Why, there was one back wheel broke, and a dinge in the body." All the other witnesses who testified concerning this point, on behalf of the plaintiff, made only the same sort of examination. With such an examination they could only guess at the extent to which the car was actually damaged. The accident occurred after dark and those witnesses were simply guessing at the extent of the damage to the car resulting from the collision. The witness, Kearns, who was called by plaintiff to place an estimate on the damages to the car, testified as to what it would cost to repair those parts which the witnesses who had made merely superficial examinations of the car had observed, and testified that to repair those parts would cost only $55.00. When this witness was asked the direct question what was the fair market value of that car when it was wedged between the locomotive and the bank, with the left hand corner two feet off the ground and the front part of it against the bank, his answer disclosed that he was unwilling to make an estimate. "Q. What would you say was a fair market value of the car immediately after the first collision? A. Well, in the way it was setting, it would be pretty hard to tell just exactly. You couldn't get a man to buy a car that was all jammed up like that one was, and give you any price on it at all, I wouldn't imagine." And, in cross-examination: "Q. You don't know, do you? You don't know what the fair market value was; you don't know what you could have got on the open market for that car right after that collision took place, do you? A. No, not just exactly." When the claim is for pecuniary damage to property of the character involved in this case, the *Page 136
evidence must fix the actual loss with reasonable precision, through witnesses with knowledge of the fact. This burden is always upon the complaining party. Damages are never presumed; the plaintiff must establish by evidence such facts as will furnish a basis for their assumption according to some definite and legal rule: Forrest v. Buchanan, 203 Pa. 454; Beck v. Baltimore Ohio R.R. Co., 233 Pa. 344. The jury were in this case really permitted to guess at the difference between the market value of the car after it had been struck, the front of it pushed up against the bank and the left hand rear wheel lifted from the ground two feet, and the market value of the car after the locomotive had been moved away eastwardly. All the assignments of error are sustained.
The judgment is reversed and is here entered in favor of the defendant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3857055/ | Argued March 12, 1935.
Defendant was convicted on an indictment charging him with having unlawfully, wilfully, fraudulently and feloniously, by trick and artifice, taken and carried away from the person of Mrs. Clara Thomas, a diamond ring valued at $275. Defendant's motions for a new trial and arrest of judgment were refused.
Mrs. Thomas and the defendant had been on friendly terms for some time and the defendant, either at the request of the prosecutrix or on his own wish, arranged for the purchase of the diamond ring in question and Mrs. Thomas gave as a payment her diamond ring. On July 5, 1933, defendant obtained the diamond ring from Rothsteins, the jewelers, on a written bailment *Page 258
lease for the sum of $275; on which lease was credited the sum of $100, the value of the ring given to the defendant by Mrs. Thomas. A short time later, defendant made a gift of the leased ring to Mrs. Thomas and according to her testimony she had no knowledge of the ring being under lease until about three weeks after its delivery. Defendant later made several payments on the rentals required under the bailment lease and according to his testimony had made personal demand upon Mrs. Thomas for the ring so that he might surrender the ring to the Rothsteins, who were demanding its return, which she refused to do. Later the defendant told the prosecutrix that the ring was valuable and should be insured, and she gave him the ring to have it insured and he was to return it. Defendant admitted that he told Mrs. Thomas that the ring ought to be insured and in order to get the insurance, it was necessary to take it down town to a jeweler and have it appraised. On the day the ring was delivered to the defendant or a short time later, the ring was returned to the Rothsteins and on the same day it was returned to the defendant and was retained by him until a few days before the trial, a period of four months, when it was delivered to the Rothsteins. A short time after the delivery of the ring by Mrs. Thomas to the defendant, she demanded its return, which defendant refused to do although he gave her a key to a safety deposit box in which the ring was supposed to be but did not tell her where the box was located. The case was submitted to the jury on the question whether at the time the ring was delivered to the defendant, it was taken by him with the intent to convert it to his own use without the consent of the owner.
Appellant urges that the evidence was not sufficient to sustain the conviction. The Act of March 31, 1860, P.L. 382, § 103, (18 Pa.C.S.A. § 2771) which covers the crime of "larceny" does not define it but the generally accepted *Page 259
definition is that larceny is the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner, without his consent: Wharton's Criminal Law, 12th Ed. vol. 2, § 1097.
"To sustain an indictment for larceny, the goods alleged to have been stolen must be proved to be either the absolute or special property of the alleged owner provided, that such owner be not technically the defendant. . . . . . . But it is not necessary that the alleged owner should be legally entitled to hold property. It is enough if he in any sense have title": Wharton's Criminal Law, vol. 2, 12th Ed., § 1172. "Every person who has obtained by any means possession of any movable thing is deemed to be the special owner thereof, as against any person who cannot show a better title thereto": Wharton's Criminal Law, vol. 2, 12th Ed., § 1179. "Doubtless a bailee can be described as the owner if a thief is indicted; for as to the wrongdoer, possession is sufficient": Com. v. Tobin, 2 Brewster 570. "Possession, e.g., of a finder, or even of a thief, or of one who bought from a thief, will make such property that the taking of it from him by another may be itself a theft": Trickett on Criminal Law, vol. 1, p. 10. The possession of the ring by the prosecutrix was sufficient special ownership that taking it from her would constitute larceny and if by means of any trick or artifice she was induced to part with the possession only, still meaning to retain her right of property, the taking by such means amounts to larceny: Com. v. Eichelberger, 119 Pa. 254, 13 A. 422; Com. v. Dehle, 42 Pa. Super. 300, 304.
Appellant admits that the prosecutrix had sufficient title to the ring to maintain a charge of larceny against anyone who took the ring from her other than the one who procured possession of the same for the purpose of returning it to the owner. In stating his position, appellant *Page 260
loses sight of the material facts that on the day the defendant delivered the ring to the bailor it was returned to the defendant and retained by him until almost the day of the trial of the indictment. He himself recognized the prosecutrix had a right to the ring as he gave her a key to a safety deposit box in which the ring was supposed to be. Assuming that it was the legal duty of the defendant to return the ring to the bailor for his failure to make the payments, however, when it was returned to him it was his duty to return the ring to the prosecutrix; as against her, Rothsteins were the only ones entitled to the ring, if the payments were not made. Under all the circumstances, the jury would be clearly warranted in finding that by trick and artifice he obtained possession of the ring with the intention to deprive the prosecutrix of her rights of possession.
The first, second, third and fourth assignments of error relate to the charge of the court. The language complained of in the first assignment of error is as follows: "that it is not controlling here whether this ring was held in possession by the prosecutrix under a bailment lease such as has been exhibited here or not." In this we see no just cause for complaint. The controlling question for the jury to determine was whether by the artifice which defendant used, he took the ring with the felonious intent. The bailment lease was one of the facts to be considered but not the controlling fact.
In the second assignment of error, appellant emphasizes that the court disregarded the chief defense that the real ownership of the ring was in the bailor (Rothsteins). Conceding that under the terms of the lease Rothsteins could have obtained the ring, still as between the defendant and the prosecutrix, the latter was entitled to the possession. As we have heretofore stated, it is not necessary that the absolute owner be deprived of the possession. The special ownership which the *Page 261
prosecutrix had was sufficient ownership which if taken with a felonious intent, made out the crime of larceny.
We shall not quote in full that portion of the charge which is assigned as error under the third assignment as the particular language which is complained of is as follows: "We mention that in connection with the notice given by the firm of Rothstein's for the return of this property, and we call attention to Mr. Rothstein's statement that notice was given and the ring brought back, and then the defendant was again allowed to have possession of it, under which circumstances it was the plain duty of the defendant to return the ring to the prosecutrix." Appellant's special complaint is that because of his experience with the prosecutrix in her refusal to give up the possession of the ring he was not required to place himself at the mercy of the prosecutrix with respect to the obtaining possession of the ring when again required under his bailment lease. In this the appellant loses sight of the fact that he obtained possession of the ring by artifice; that instead of returning the ring to the permanent possession of the bailor, had the ring returned to him, retained possession of it and thereby prevented the prosecutrix from asserting the title which he had given to her, of which title $100 had been credited as payment from her. We believe this portion of the charge to be a correct statement of defendant's duty.
The fourth assignment complains that the court charged the jury that it was the plain duty of the defendant to return the ring to the prosecutrix. In that connection the court further charged: "His failure to do that, however, of itself would not make him guilty of larceny. You must find as we have said, that there was a felonious intent or intention to steal as of the time that the ring was taken or gotten from the prosecutrix." If the ring was obtained by the defendant as alleged by the Commonwealth, he could not shield himself *Page 262
behind an arrangement which he had made with the bailor so as to deprive the prosecutrix of her rights. His possession of the ring was not only subject to the rights of the bailor but also subject to the rights of the prosecutrix.
In the fifth assignment appellant contends that the charge of the court as a whole was inadequate and misleading. Before concluding the charge, the court asked counsel whether there was anything he had omitted or they wished corrected in his charge. Counsel for defendant thereupon stated that the court erred in stating that the prosecutrix had a sufficient interest in the ring to make the taking of it by the defendant larceny, and in stating that it was defendant's plain duty to return the ring to the prosecutrix. Thereupon, the court further charged the jury and said in part as follows: "What we meant to say was that the prosecutrix had sufficient title or interest in the ring to make the taking of it larceny, if in connection with the taking of it you find there was an intent to steal it, that is, a felonious intent. We reaffirm that it was the defendant's plain duty to return the ring to the prosecutrix, when Rothstein's returned it to him. The only one who had a right to interfere with prosecutrix's possession of the ring was the Rothstein Company." When asked if there was anything further, no requests were made by counsel. Much of appellant's argument on this assignment relates to the assignments of error that we have previously discussed in which we find no error. Although the court did not attempt to repeat the testimony in detail, a fair analysis of the charge as a whole convinces us that it was not inadequate or misleading, but that it fairly presented to the jury the questions that were involved in the trial.
The assignments of error are overruled and the judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in *Page 263
the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3884231/ | November 29, 1904. The opinion of the Court was delivered by
The appeal in this case is from an order sustaining a demurrer to the complaint for insufficiency and dismissing the complaint. The action was for damages based upon the following allegations:
"I. That the defendant is now and at the times herein stated was a corporation duly chartered, organized and doing business under the laws of the State of South Carolina, with its principal place of business at Laurens, S.C. and is engaged in the business of buying cotton from the initial seller and in the manufacture of cotton goods.
"II. That the plaintiff is the owner of real estate near Park Station, in Laurens County, and said State, and rented a part of his said land to W.K. McDowell for agricultural purposes for the year 1902. The said rent being payable in the fall of the year 1902.
"III. That on the day of November, 1902, the said W.K. McDowell sold to the defendant, Laurens Cotton Mills, one bale of cotton of the value of forty-five dollars, on which the plaintiff held a lien for his said rent, and the said *Page 276
McDowell failed within ten days thereafter to pay the said rent or to deposit the amount of the same with the clerk of court for Laurens County.
"IV. That soon after the sale of the said cotton to the defendant by the said W.K. McDowell, the plaintiff notified the defendant that he held a lien on the said cotton for rent, and requested and demanded of the defendant the possession of the said cotton, and also demanded of the defendant an inspection of its books, wherein is kept a record of all cotton bought from the initial seller, which demand and request the defendant wilfully, maliciously and in wanton disregard of the rights of the plaintiff, and in open violation of the laws of the State of South Carolina, refused. That the plaintiff then applied to Magistrate John M. Hudgens for a warrant of seizure against the said cotton, which warrant was duly and regularly issued, directed to the sheriff of Laurens County, South Carolina. That the said sheriff by his duly and legally appointed deputy went to the office of defendant, in the city of Laurens, S.C. for the purpose of executing the said warrant of seizure, and demanded of the president and secretary of the defendant an inspection of its books, wherein is kept a record of all cotton bought by the defendant from the initial seller; but the defendant, through its officers and agents, wilfully, maliciously and in wanton disregard of the rights of the plaintiff, and in open violation of the laws of South Carolina, refused to allow the said deputy to inspect its books, and thereby prevented him from executing the said warrant.
"V. That by reason of the defendant's refusal to deliver the said cotton to the plaintiff, and its refusal to allow either the plaintiff or the sheriff to inspect its books as aforesaid, the plaintiff has suffered damage to the amount of two thousand dollars."
The specifications of insufficiency were:
"I. Because the complaint fails to allege that the defendant was in possession of the bale of rent cotton at the time *Page 277
that plaintiff demanded its possession or an inspection of the books, or that defendant was in possession thereof at the time lien warrant was issued, or at the time the action was brought.
"II. Because the said complaint fails to allege any actual damage sustained by the plaintiffs.
"III. Because the complaint fails to connect the plaintiff with any tort committed by the defendant, or to show that plaintiff was damaged by any tort committed by the defendant."
The exceptions impute error in sustaining the demurrer upon the above grounds.
When a fact is pleaded, whatever inferences of law or conclusions of fact may properly arise from it, are to be regarded as embodied in such averment. Mason v. Carter, 8 S.C. 103. The following, from Pomeroy on Code Pleading, has been several times approved in our decisions: Childers
v. Verner, 12 S.C. 1; Jerkowski v. Marco, 56 S.C. 241,246, 34 S.E., 386. "The true doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and complete by amendment."
Applying this rule in connection with the rule that pleadings should be liberally construed with a view of substantial justice between the parties, we think it was error to sustain the demurrer, and dismiss the complaint. In Graham v.Seignious, 53 S.C. 132, 137, 31 S.E., 51; Michalson v.All, 43 S.C. 459, 21 S.E., 323; Drake v. Whaley, 35 S.C. 187,14 S.E., 397, it is shown that one who receives *Page 278
and disposes of cotton subject to lien with notice of the lien, is liable in damages to the lienee. The complaint alleges the plaintiff's lien, the purchase of the cotton by defendant, notice of the lien soon after the purchase, and refusal to deliver the cotton upon demand of plaintiff, and refusal of the demand of the officer having warrant of seizure, to prevent inspection of books, required by law to be kept, containing a record of cotton bought from the initial seller, in wilful disregard of plaintiff's rights, thereby preventing the execution of the warrant of seizure. That defendant had possession of the cotton soon after the sale of it to defendant by the lienor, when notice of the lien was given, is a reasonable inference from the purchase of the cotton for manufacturing purposes, and refusal to produce it on demand of the plaintiff, or to permit the use of means provided by law for the identification of cotton purchased. It is not probable that defendant had sold the cotton before notice of the lien, as it was not bought for sale but for manufacture. If the cotton after notice of the lien was sold or used in manufacturing, that would be a conversion, rendering defendant liable in damages. So that it follows, as a reasonable inference from facts alleged, that defendant either had possession of the cotton as purchased soon after the purchase, or had converted it into some manufactured product, in either of which cases liability in damages would attach after notice of the lien.
The second specification is disposed of by reference to the allegations as to the loss and value of the cotton subject to plaintiff's lien.
That the third specification could not be sustained follows from what has been already said.
The judgment of the Circuit Court is reversed. *Page 279 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3890709/ | Complainants below, three in number, are county highway commissioners for Carroll County, elected for two years, in August, 1932, pursuant to provisions of chapter 662, Private Acts of 1931. They filed their bill to restrain defendants Murray Gilkey and Henry Betts, claiming appointment under chapter 579, Private Acts of 1933, from displacing complainants in their offices, on the ground that the act under which they claim title is unconstitutional. They charge (1) that the changes made by the new Act of 1933 are colorable only, affecting in no fundamental the road law of 1931 for Carroll County; (2) that powers are undertaken to be conferred on the commissioners with respect to the disposition of property which may be lawfully exercised by the county court only; (3) that the caption is misleading and deceptive; and (4) that the Act of 1933 was passed by the Legislature fraudulently and collusively and is therefore void. The chancellor sustained a demurrer challenging these contentions, and complainants appealed.
Recognizing the power of the Legislature to terminate the holdings of incumbents of office by abolishing the offices held by them, or by the making of such fundamental changes in the law under which they hold as will work the same result, it is, also, well settled that the changes in the form or structure of the governmental agency affected must be real and substantial, not colorable only. Goetz v. Smith, 152 Tenn. 462, 278 S.W., *Page 467
417; Smith v. Sells, 156 Tenn. 539, 3 S.W.2d 660;Haggard v. Gallien, 157 Tenn. 269, 8 S.W.2d 364;Holland v. Parker, 159 Tenn. 306, 17 S.W.2d 926; Loring
v. McGinness, 163 Tenn. 543, 44 S.W.2d 314; Butler v.McMahan, 166 Tenn. 511, 64 S.W.2d 1; Powers v. Wiseman,167 Tenn. 140, 67 S.W.2d 142, 143.
In most of these cases the acts in question were upheld, but in all of them the principle was approved that the changes must not relate alone to details of conduct and operation, but must go to the basic structure or fundamental form of the governmental arm affected.
In Loring v. McGinness, supra, among other changes, a county road commissioner was created to be elected by popular vote, succeeding a body chosen by the county court. The act was sustained. In Holland v. Parker, supra, this same change in the source of authority was made, with a like result. In Butler
v. McMahan, supra, among other changes, a superintendent was substituted for a highway commission, in effect a change from a commission to a managerial form of government. The changes were found to be not merely colorable. In the last published opinion,Powers v. Wiseman, supra, the act transferred the duties formerly exercised by a county board of nine members to the workhouse commission of the county, with the effect of abolishing the former. It was held that the "change to the new system was real and not merely colorable."
On the other hand, in Smith v. Sells, supra, the court felt constrained to hold the changes colorable only, and the act void. It provided for the substitution of a county board of public school directors of five, for a county board of education of nine. The court held that this reduction in the number of the members was not substantial, *Page 468
as related to the form of the governmental agency. Other changes were with regard to details of service and compensation. We find a strong analogy in the case now before us. Here the two changes apparently stressed are, one, a reduction in the number of the commissioners, from three to two, the county judge being chairmanex officio under both acts. No change in the name occurs here, as was the case in Smith v. Sells, supra. And, two, the new act provides for supervision of the work to be done by foremen, to be selected by the commission, rather than by or through a "supervisor," to be selected in like manner. The commissioners themselves are still to be elected as before, by popular vote and for a like term of two years.
The reduction in number is no more fundamental than in Smith
v. Sells, supra. Nor is the division of the county into two, rather than three, road districts, as in the old act.
The omission from the new act of any provision for a road supervisor is stressed as a substantial change in the form of this governmental agency. Counsel treat the old act as having created this office and placed the road work of the county in the hands of this officer, to be elected for a fixed term of four years, and appear to argue that the abolishment of this controlling and dominating officer and the vesting of control in the commission was a real and substantial change in the form of this governmental branch. This theory rests, in part, on a mistaken conception of the provisions of the old act touching this matter. The old act merely "authorized" the highway commission "to employ a competent road supervisor for a period not to exceed four (4) years," and at a salary "not to exceed" the sum named. *Page 469
It was left optional with the highway commission (1) to employ one at all, (2) to fix his term, within four years, and (3) to fix his salary. It was provided that "the County Highway Commission shall assign to such road supervisor [if chosen by them] such duties as it may see fit and proper," etc. He was distinctly the creature of the commission. Moreover, this, as we conceive, is a detail only of management and supervision, not going to the basic form of government generally of the road work of the county. If to effect economy, or obtain better results, the Legislature thought it wise to take from the highway commission this "authority" and specify the use of foremen only, this could have been done effectively by an amendment to the existing law.
The other provisions of the Act of 1933 which modify or otherwise change the old law plainly relate to details of reporting, or accounting, or internal management. As was said inSmith v. Sells, supra: "It seems obvious to us that the system of government and control of the county schools [here the county roads] is identical under each of the two statutes," or, at least, so nearly so as not to constitute substantial changes in the form. And, "The differences are confined to mere matters of detail, and cannot have the effect of changing the nature or identity of the office of members." This we find to be true here.
In view of the conclusions indicated, we find it unnecessary to discuss the other issues raised by the pleadings. On the grounds stated the decree of the chancellor sustaining the demurrer must be reversed, and the prayer of the bill for an injunction granted. *Page 470 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3890007/ | The indictment returned against plaintiff in error, Jake Vann, on February 1, 1939, contained two counts. The first count charged that on the 10th day of February, 1938, defendant "did unlawfully exhibit, keep and possess *Page 434
a certain gambling device or machine for the enticement of persons to play with and gamble on for good and lawful money of the United States of America or other valuable property." The second count charged that defendant on the day and year aforesaid, "did unlawfully possess, keep, let, hire, rent, lease, aid and promote furnish and supply certain gambling devices for the enticement of persons to play with and gamble on for good and lawful money" etc.
On the trial of the case, the court directed the jury not to consider the second count. Defendant was found guilty under the first count of the indictment and his punishment was fixed by the jury at a fine of $275. He has appealed to this court and assigned errors.
It appears from the record that more than six months prior to his indictment, but within twelve months thereof, defendant placed a number of slot machines in various resorts in Anderson County.
Section 11484 of the Code provides: "All prosecutions for misdemeanors, shall be commenced within twelve months next after the offense has been committed, except gaming, which shall be commenced within six months."
The first count of the indictment is based on section 5250 of the Code, which is as follows: "No person shall have in his possession any gambling table or any device whatever for the enticement of any person to gamble."
It is the theory of defendant that the offense defined in section 5250 is barred in six months, under the last clause of section 11484. On the other hand, the State insists that the period of limitation for prosecution based on section 5250 is twelve months, under the first clause of section 11484.
The next section of the Code following section 5250 (section 5251) provides as follows: "It is declared to be *Page 435
the duty of every judge, justice of the peace, sheriff, and constable to apprehend, or cause to be apprehended, any person known to him, upon his own view or upon information, to be guilty of this offense, and to commit him or cause him to be committed to jail, to await his trial at the next succeeding court having cognizance of the offense of gaming."
Neither section 5250 nor 5251 fixes any punishment for a violation of the provisions thereof. The accused, it is provided, is to be committed to jail "to await his trial at the next succeeding court having cognizance of the offense of gaming." Article XIV, chapter X, Title 1, Part IV of the Code (sections 11275, 11276) deals with the offense of "Gaming" — and by section 11282 provides the punishment for any person convicted for having in his possession "any gambling table or other device for the enticement of any person to play or gamble at." Nowhere in the chapter on "Gaming" is it made an offense for a person to have in his possession any gambling table or other device for the enticement of any person to gamble. The punishment alone is fixed for the offense. Section 5250 creates the offense. That the Legislature intended the offense should be classified as "gaming" is apparent from the provisions of section 5251, wherein it is provided, among other things, that the accused is to await his trial at the next succeeding court having cognizance of the offense of gambling. Being thus classified as gambling, the period of limitation for the prosecution of such offense (six months) necessarily applies.
The result is that the judgment of the trial court must be reversed and the case dismissed. *Page 436 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3884232/ | November 16, 1933. The opinion of the Court was delivered by
It appears from the statement made for the hearing of this appeal, and from the record, that plaintiff bought from the defendant certain fertilizers for use on her plantation in Dillon County for the year 1927. It is alleged in her complaint that the fertilizers were bought in February of that year, and that defendant was notified that immediate delivery was desired, and that it was promised by him; that, in spite of such notice and repeated demands for delivery, the fertilizers were so long delayed in delivery that plaintiff was unable to plant cotton and set out tobacco plants till such late dates that her crops were greatly injured and produced but a small return. She asked damages in the sum of $3,000. *Page 133
Defendant by his answer admitted the purchase of the fertilizers, denied all other material allegations of the complaint, and specifically denied any delay and negligence in the delivery of the fertilizers.
The action was begun in January, 1931, and was tried by Judge Thomas S. Sease and a jury at the October term of the Court of Common Pleas for Dillon County, and resulted in a verdict for plaintiff in the sum of $1,483.33. A motion for new trial was made on the minutes of the Court, and later motion for new trial on after-discovered evidence was made on due notice. Both motions were heard and overruled by Judge Sease. This appeal followed.
There are three exceptions. It appears to us that the first two of these are based upon misconceptions of the Judge's charge.
The first exception imputes error to the trial judge, for that he "charged the jury in effect that in the consideration of this case the jury should give it the same consideration as if it had been brought in 1927, that they were not to allow the fact that it was not brought until 1931 to affect their verdict."
It appears from the record that counsel for appellant in argument had adverted to the fact that the action was not brought until 1931, though it was alleged that the cause of action accrued in 1927. Before beginning argument in reply, respondent's counsel asked the Court to instruct the jury that: "That this case was brought within the time allowed by law, and it is the duty of the jury to give it the same consideration as if it had been brought in 1927, and the jury must not allow that fact — that it was not brought sooner — to prejudice their minds. The law allows six years in which to bring an action of this kind."
To this the Court replied:
"Your proposition is correct, but I don't think I would have the right to tell the jury not to consider that, because *Page 134
it is in the testimony and they are to consider all the testimony; but I will give them the law all right.
"Mr. Rogers: I want your Honor to explain that that is the law.
"The Court: Oh, yes; that is the law."
Presumably this colloquy occurred in the presence of the jury. The disposition of it by the Court could work no hardship to the defendant. It distinctly left to the consideration of the jury the fact, which had been stressed in argument by counsel for appellant, that the action was not brought until 1931, although the alleged breach of contract occurred in 1927.
The charge hereabout was in these words: "I instruct you that where one brings suit of this kind within six years she is within the law and she has a right to maintain such a suit."
There can be no denial that this is a sound proposition of law and that it was applicable to the issues involved in the case.
The same misconception of the charge applies to the error imputed in the second exception. The alleged error was in these words: "Where a person goes to a railroad company and ships goods and has it consigned to himself no man has the right to go within that car, unless he has the bill of lading assigned to him by the shipper or consignee, or a written order for the bill of goods."
During the same colloquy above referred to between counsel for plaintiff and the Court, counsel asked the Court to instruct the jury in the language set out in the exception. The Court said:
"One of the railroad witnesses said that this was a white bill of lading and intimated in his testimony that any one could get the car.
"Mr. Rogers: I didn't get that. He said that there was a difference, but I don't think he explained it. It is the general *Page 135
law that the consignee, and the consignee alone or some one authorized by him, can take the goods out of that car.
"The Court: I think that the principle is right. The principle of law is elementary, of course."
It is patent that the last remark of the Court related to the general principle of law last suggested by counsel, and it is clear that the jury could not have been misled by the incident.
The charge in relation thereto was as follows: "I charge you that the law is that a bill of lading carries title to the property covered by the bill of lading."
We apprehend that there will be no denial of that proposition of law.
The third exception charges that it was error to refuse the motion for new trial made on the ground of after-discovered evidence.
It is the fixed rule that such motions are addressed to the sound discretion of the Court, and that the exercise of that discretion will not be disturbed unless it appears that the discretion has been abused; that is to say, that it amounts to an error of law.
We have carefully read the affidavits upon which the motion was predicated, and we concur with the circuit judge that they do not warrant setting aside the verdict and granting a new trial. With due diligence this after-discovered evidence could have been found two days before the trial as easily as it was found two days thereafter.
The exceptions are overruled, and the judgment is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur. *Page 136 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3890710/ | The bill of complaint states that the complainant, Nancy, was the widow and administratrix of Thomas Jenkins, deceased, who died in the month of August, 1797, in the State of North Carolina; that she not having skill to manage the administration procured her brother, the defendant, to receive money and tobacco of said estate to the amount of 1,228l. 6s. 8d. into his hands, to pay debts, c. and that the defendant afterwards exhibited to the County Court an account current, in which was stated sundry credits claimed for monies disbursed for the benefit of the estate; that the defendant afterwards exhibited against her a private account, and alleging that such account was correct, procured her to assume the payment of it, on condition that a credit should be allowed her of 70l. 5s. 7d.; that in said private account there are various errors, mistakes and omissions to her prejudice which are specified in the bill.
The complainants further state, that suits have been commenced against them on the settled account. The prayer is for an injunction; and that the settlement may be opened and corrected.
The answer of the defendant admits his agency, and alleges that he paid considerable sums for said estate and the family out of his own funds; that these sums formed the the debits in said private accounts, and that the accounts were fairly stated, and just credits given; and that the balance there struck is justly due. He answers particularly each averment specified in the bill and denies it, and exhibits a copy *Page 322
of the private account, at the bottom of which is a promise under the hand and seal of the complainant Nancy to pay the balance struck.
In examining this case, the private accounts, the account current, as it has been called, and much other testimony has been produced. It appears that on the trial at law the jury have given a credit for 50l.; and than the judgment has been taken for the balance after that sum is deducted.
It has been urged by the complainant's counsel that enough appears from the proof to show that in some particulars error was actually committed in the settlement, and that the Court will at least send the case to the master for his statement and report.
It appears to me that as the acknowledgment of the balance due is under the head and seal of the complainant Nancy, it was not competent for her to impeach it in a court of law. The complaints might certainly well come into this Court if injured in that settlement; but when they do come into this Court, they will have the burden of proof upon them. They must first allege particularly the errors which exist, and then produce satisfactory evidence to support those allegations. The defendant need only deny the errors, — the instrument will be deemed correct until proved otherwise. In this case the proof is before the Court, and if it supports the complainant's allegations, the Court may give relief without referring the matter to a master; and indeed unless the proof will justify a statement from the master on which they would relieve the party, the reference would only increase expense without a benefit to the parties. The complainant was the administratrix; the account current is nothing more than the account rendered to the County Court, in which she is debited with the whole amount of the personal estate, and in which she claims credit for all payments made, whether by herself or the defendant, who was her agent. The account was drawn by him and presented to the Court by her when he was not in the country. Unconnected with other evidence, it proves nothing in this cause. But it is alleged other proof shows the amount of tobacco *Page 323
put in his hands, to be larger than the amount stated in this account, and of course that he ought to credit her with the difference. Suppose the facts to be as stated? Her administration account rendered to the Court upon oath will be incorrect. If he is bound to account with her for a larger quantity than that stated in her account rendered, she immediately becomes responsible for the same amount and ought to charge herself with it in the account which she rendered. Is it not very probable that as she lived where the tobacco was raised, knew of its being taken to market and sold, that she would shortly after it was sold recollect the precise amount much better than any man would twelve or thirteen years after it? and if she knew the amount she would certainly see that it was correctly stated before she would swear to it. Yet if it be true that the amount is incorrectly stated, we are forced to consider not only that the defendant for this difference would upon his oath swerve from the truth; but that he would induce a sister with whom he seems to have been on friendly terms, to do so likewise. Before we admit a supposition so disgraceful, we ought to have pretty clear evidence. The testimony of Lynch alone goes to fix the amount of the tobacco raised in 1797 and 1798, and he does not speak, positively as to the quantity. Mr. Monroe speaks of the years 1799, 1800, and 1801, but his testimony would increase the quantity very little, and he seems to have no recollection that he can himself depend upon. Lynch places the actual quantity in 1797 higher than charged; in 1798 lower; and his statement as to the proportion coming to him does not correspond with the sum he received. Upon this part of the case, I am inclined to believe that the amount charged is perhaps the nearest correct, — at all events I am not convinced that the proof does support this part of the case.
We have no evidence of any frauds furnished the defendant to pay the debts with but the tobacco. We see that debts to a larger amount than it was sold for have been paid, and we can not say precisely by whom. It is most probable from the proof it was by *Page 324
the defendant. May we not then safely infer that some of these payments were out of his own funds, and that he has a just claim for that amount? Some of the items in the private account which are attacked by the bill, are clearly supported by the witnesses of the complainants themselves. There is no satisfactory evidence to show that any of them are wrong. Before we attempt to correct an account we must ascertain what alterations will put it right. Should we attempt from information before us to change this settlement, I think it more probable we should put it farther from the truth. Two witnesses seem to have been at this settlement, and neither of them is produced; nor is there any testimony to show advantage or improper conduct in the settlement; and after this lapse of time I will not distrust it.
This woman was left a widow in the neighborhood of her brother; she is equal to the settlement of the estate without assistance; he is applied to and undertakes. The debts are paid and the estate wound up; the parties on the best terms; a settlement is then made between them relative to his agency. She acknowledges he has paid out of his own money 113l. and gives an instrument promising to repay it. Is it reasonable, after the lapse of fourteen or fifteen years, to suppose he can recollect the whole transactions and have proof to explain them? They had mutual confidence; each would therefore take less trouble to keep vouchers and be ready to explain their transactions.
To impose upon and betray the confidence reposed by a woman destitute of any assistance, would be most disgraceful; and how we could sufficiently censure a brother who had betrayed the trust reposed in him by a sister I am at a loss to say. As there is in this case no evidence to justify the belief that there is any error in the settlement sought to be impeached, the bill must be dismissed with costs. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3891861/ | Paul Tevis filed his original action for damages for personal injuries against Proctor Gamble Distributing Company and J.G. Crihfield in the Second circuit court of Knox county. He sought a recovery in the amount of $50,000 on account of personal injuries received on the night of March 6, 1936, as a result of being struck by an automobile owned by Proctor Gamble Distributing Company and driven by J.G. Crihfield at the time of the accident while in the discharge of his duties as an employee of said company.
The first trial of the cause resulted in a mistrial. The second trial was finished on Friday, February 5, 1937, but the jury not having time to finish its deliberations on that date, it was respited until Monday, February 8, 1937. At the conclusion of its deliberations the jury returned a verdict in favor of the defendants, and the plaintiff's suit was dismissed. Thereafter plaintiff filed his motion for new trial in due course, and the same was overruled on March 6, 1937. The order denying motion for new trial was not entered at the time it was made, but on March 20, 1937, a nunc pro tunc order was entered as of March 6, 1937. This order allowed plaintiff 45 days within which to prepare and file both appeal bond and bill of exceptions. On April 19, 1937, the time for filing bill of exceptions was extended until April 30, 1937. And bill of exceptions was filed on April 29, 1937, or within the time as extended.
An appeal bond was filed April 17, 1937, 42 days from March 6th, the day upon which the court acted upon the motion for new trial, but less than 30 days from March 20th, the day upon which the nunc pro tunc order went to record. It is now insisted that the appeal bond was not filed within the time required by the statute, and that this court acquired no jurisdiction of the attempted appeal. This insistence is based upon the theory that the court could not grant more than 30 days for the filing of an appeal bond under the provisions of the statute, and that the appeal bond was not filed within 30 days from the making of the order overruling motion for new trial and granting an appeal.
This question has been before this court and the Supreme Court in various forms on numerous occasions, and while there is no question about the rule, it is sometimes difficult of application. It involves a consideration of the provisions of section 9047 of the Tennessee Code of 1932, which is as follows:
"When an appeal or appeal in the nature of a writ of error is *Page 498
prayed from a judgment or decree of an inferior court to the court of appeals or supreme court, the appeal shall be prayed and appeal bond shall be executed or the pauper oath taken within thirty days from the judgment or decree, if the court holds so long, otherwise before the adjournment of the court, but for satisfactory reasons shown by affidavit or otherwise, and upon application made within the thirty days, the court may extend the time to give bond or take the oath in term or after adjournment of the court; but in no case more than thirty days additional."
Mr. Justice Swiggert discussed this question most ably in the case of Physicians' Mutual Health Accident Insurance Co. v. Grigsby, 165 Tenn. 151, 53 S.W.2d 381, 382, in which, among other things, it was said:
"If the court holds as much as thirty days from the date of the rendition of a judgment, the circuit court is authorized by statute to extend the time for the filing of an appeal bond for an additional thirty days, making a maximum period of sixty days for the perfecting of an appeal by the filing of bond, as held in England v. Young, 155 Tenn. 506, 296 S.W. 14."
In the case before us the court verbally overruled the motion for new trial on March 6, 1937, but the order was not in fact entered of record on that date. And no order was entered of record until March 20, 1937, at which time the court still had authority to grant additional time not exceeding 30 days. The order as entered on March 20th attempted to allow appellant 45 days' time within which to file his appeal bond. And while it is insisted by appellee that this time is to be computed from the time of the making of the verbal order overruling motion for new trial, we do not think this insistence can be sustained. To give effect to this insistence would be to say that 14 days of the time allowed had already expired. There is nothing in the record to indicate that the court intended to so limit the time for appeal. On the contrary, we think a proper construction of the order entered would indicate that the court intended to give plaintiff in error 45 days from the entry of the order. And while the court was without authority to grant more than 30 days from the entry of the order, we think the order granting 45 days was sufficient to give the 30 days within the power of the court. And since the bond was filed within 30 days after the entry of the order, we think the motion to dismiss is not well taken, and that it must be denied. We think the filing of an appeal bond less than 30 days after the entry of an order granting 45 days is sufficient to transfer the case to this court, and that this court has jurisdiction to review the record. The order as entered was valid to the extent that the court had jurisdiction as to the time allowed, and invalid only to the extent of the excess time allowed. And we now proceed to an examination of the *Page 499
questions raised by assignment of errors. But before noticing the several errors assigned, we shall give a brief statement of the facts.
On the night of March 6, 1936, the plaintiff was driving his automobile westwardly from Newport towards Knoxville on U.S. Highway 11E. After crossing the Holston river bridge and traveling a short distance, plaintiff's automobile collided with an automobile owned and driver by a man by the name of Mullins. At the time of the collision the Mullins automobile was being driven in an easterly direction along said highway. As a result of the collision, both automobiles participating in same were disabled, the Mullins car in such position as to block the southern portion of the highway for vehicles, and extending somewhat diagonally across the same. Immediately after the collision plaintiff attempted to move his car off of the highway, and succeeded to some extent in doing so. The rear wheels of the car, which was a large Buick sedan, were off of the improved portion of the highay and the front wheels were on the shoulder of the road on the side opposite from the Mullins car. We think it appears that plaintiff moved his automobile as far as he could in its damaged condition.
After plaintiff had moved his automobile as above set out, he proceeded to try to unload its contents, which was moonshine liquor. While he was attempting to unload the liquor, he was struck by the automobile of defendants. The accident happened about 9 o'clock at night. The facts up to this point are not disputed, but there is some dispute as to certain features of the evidence as to the exact location of the two cars participating in the first collision, the speed of the car of defendants, etc. These matters will be discussed in connection with separate assignments of error by the plaintiff, which we now proceed to consider in their order.
It is first insisted that the court erred in not granting plaintiff a new trial because the evidence preponderated in favor of the plaintiff and against the defendant. This assignment presents no question for review in this court. There is no rule of law better settled in this state than that the verdict of a jury is conclusive of questions of fact where there is a conflict of evidence as to the particular fact decided by the jury, and that an appellate court will not pass upon the weight of the evidence or the preponderance of the same. This question was before the Supreme Court in the early case of Van Huss v. Rainbolt, 42 Tenn. 139, 140, 2 Cold., 139, 140, and the rule announced as above set out. The rule has been reaffirmed in numerous cases by this court and the Supreme Court in both published and unpublished opinions. See Brenizer v. Nashville, etc., Ry., 156 Tenn. 479, 3 S.W.2d 1053, 8 S.W.2d 1099. Also Greenlaw v. Louisville N.R. Co., 114 Tenn. 187, 86 S.W. 1072.
It is next insisted that the court erred in refusing to grant a *Page 500
new trial, because the verdict of the jury evinced passion, prejudice, and caprice against the plaintiff. Before proceeding to a consideration of this assignment of error, we think it not out of place to observe that there is no assignment to the effect that there is no evidence to support the verdict of the jury, and that this assignment is the only one which would involve a consideration of the evidence. It is not even insisted that there is no evidence to support the verdict, but we are asked to review all of the evidence in connection with this assignment and hold that a proper consideration of all of the evidence established the fact that the verdict of the jury was the result of passion, prejudice, and caprice. In other words, we are asked to accomplish the same results under this assignment that we could not accomplish under the first assignment presented, viz., to weigh the evidence and determine the preponderance of same. As an indication that this is the objective of this assignment in a separate treatment of same, a summary of the evidence of both plaintiff and defendants is given in brief. There is no attempt to point out any specific action of the jury indicating passion or caprice on its part in arriving at the verdict or any other act tending to impeach its verdict to any degree. And any attempt on our part to respond to the merits of this assignment would call for a consideration of the preponderance of the evidence, since no action of the jury other than its verdict after a consideration of all of the evidence is called in question. It is sufficient to say that we do not have jurisdiction to weigh the evidence, but since this insistence is so earnestly pressed, we think it not out of place to call attention to the evidence supporting the verdict of the jury.
There is proof in the record to the effect that plaintiff was driving his automobile loaded with illegal liquor over a stretch of highway covered with loose rock or gravel at a speed or from 75 to 80 miles per hour as he approached the automobile driven by William Mullins; that as a result of the rapid and dangerous rate of speed at which he was driving, plaintiff collided with the Mullins car, wrecking both automobiles and leaving them in such position as to appear to completely block other vehicles traveling in an easterly direction on said highway; that defendant Crihfield, while driving the automobile of Proctor
Gamble Distributing Company in an easterly direction on said highway, approached the point of the said collision between the car of plaintiff and Mullins. That there is a long and rather steep grade in the highway going in an easterly direction and ending some distance to the west of where the collision between plaintiff's car and Mullins' car had occurred. Crihfield was traveling at about 45 miles per hour as he went up this grade, but as he turned over the top he slowed down to about 40 miles per hour. After reaching the top of the grade going in an easterly direction, *Page 501
there is a very decided grade in the other direction. When Crihfield had passed over the top of the grade and within from 75 to 100 feet of the Mullins car, the lights on his car revealed the presence of the Mullins car, blocking the right-hand side of the highway. The shoulder and bank of the righthand side was cluttered up with piles of gravel, tar barrels, etc., so that he thought it would be unsafe for him to try to escape a collision by turning off of the road to the right. The loose gravel prevented him from stopping before reaching the Mullins car. As he approached in the darkness, it appeared that there was not sufficient room to pass between the Mullins car and the car of plaintiff. The witness Crihfield is corroborated in this by other witnesses who approached the point of the collision while the conditions were the same. Defendants insist that this constituted a sudden emergency created by the negligence of plaintiff, and that Crihfield was not guilty of any actionable negligence, and that the action of Crihfield in driving off of the highway on the left-hand side resulting in the injury to plaintiff while he was in the act of removing a case of liquor from his wrecked car was attributable to the existence of the sudden emergency created by plaintiff and not as a result of any actionable negligence on the part of said Crihfield. As hereinbefore stated, the jury returned a verdict of not guilty as to each of the defendants, indicating an acceptance of the defense of sudden emergency. And, as above indicated, while we are not privileged to weigh the evidence, we think there is an abundance of evidence to support the conclusions of the jury.
Plaintiff offered in evidence testimony of Dr. J.A. Stoechinger as follows:
"When Mr. Tevis first came to see me in regard to these convulsions, I made a Wasserman test and it was, as I recall, I think one plus positive. In other words, that test alone was no evidence that the man was suffering from syphilis, but because there was a supposition there, and because another physician at one time treated him for a light lesion he had on his urethra, I immediately gave him Salvarsan, without first definitely diagnosing whether this lesion was a syphilitic one or one due to un-hygienic conditions. I assumed, in view of the fact that he had convulsion seizures, that his seizures were of the syphilitic nature, and on that assumption I gave him syphilitic treatment, but when I sent him to Louisville, the written report from the doctor in Louisville to me was to the effect that he did not consider his condition to be due to syphilis. And upon having confidence in Dr. Glenn Spurling's ability in cerebral spinal conditions, I accepted his viewpoint and abandoned my diagnosis of syphilis entirely."
"There is no one in this city prepared to eliminate this man's condition any further than I could. There is no specialist on brain surgery or diagnosis in our city and as a consequence I sent him to *Page 502
Dr. Spurling of Louisville, Kentucky, who injected air into his brain, followed by X-ray pictures, and together with spinal punctures and other technique or examinations, derived that the diagnosis of syphilis was not a cause of this man's condition, and since there was, at that time, no one else in this state other than Glenn Spurling, I assumed that I was justified in treating this man on the evidence presented. I was giving him what is considered a therapeutic case. I was giving him Salvarsan."
"I accepted the opinion of Dr. Spurling of Louisville, that they were epileptic."
"After he returned from the visit to Dr. Spurling I no longer held the view that I had before, owing partly to his report and partly due to my own observation, in that he did not respond therapeutically to the Salvarsan, mercury and iodized solution that had been given him."
The trial judge excluded the evidence above, and his action in so doing is assigned as error. We think this assignment must also be overruled. In the first place, we think the probative value of the rejected testimony doubtful. But the testimony offered violates the rule prohibiting hearsay evidence from being introduced, and also the rule requiring the best evidence to be produced. The witness sought to testify to statements of Dr. Spurling, thus violating the rule against hearsay evidence, and he also sought to testify as to the contents of a written report made by Dr. Spurling, thus violating the rule requiring the production of the best evidence. But aside from these specific objections to the introduction of the testimony, we fail to see where it could have aided the cause of plaintiff to any great extent if admitted. As we view the testimony, it would have proved nothing, and its exclusion could not have seriously injured plaintiff.
It is next insisted that the court placed undue emphasis on the defense of sudden emergency relied upon by the defendants, in that the court repeated or referred to this question in whole or in part no less than six times. It is insisted that this repetition led the jury to believe that the court believed that defendant was, in fact, confronted with a sudden emergency, and intended that the jury should consider this question of paramount importance. We fail to find any basis for this contention after an examination of the charge. It is true that the trial judge used the term "sudden emergency" several times, but we think the repetition was only for the purpose of clarification of the issues for the jury, and not objectionable and did not prejudice the rights of the plaintiff. The charge of the court was given in great detail and was exhaustive. When taken as a whole, it represented a fair exposition of the rules of law applicable to sudden emergency, and it results that this assignment must be denied.
The next error assigned deals with the same question based *Page 503
upon a particular portion of the charge, it being insisted that the court should have qualified his charge on the theory of sudden emergency so as to deny to defendants the right to rely upon the defense of sudden emergency if the negligence of Crihfield created the condition. The charge of the court as given is not objected to, it is only insisted that it did not go far enough. In other words, it is not insisted that the court committed positive error in his charge, but that it was not amplified. We think it a sufficient answer to this insistence to say that the written charge of the court embraces twenty-four typewritten pages, and that all issues are dealt with in great detail. It is well settled that meagerness of a charge without positive error will not constitute grounds for reversal, and we think this rule is specially applicable in the case before us in view of the length of the charge as given. See Cooper v. State,123 Tenn. 37, 138 S.W. 826.
A trial judge is not required to anticipate and give in charge a full exposition of the law on all questions involved. It is only necessary that his charge be ample and a sufficient guide for the direction of the jury on the issues involved, and it will not be held defective in the absence of positive error. It was the duty of counsel for plaintiff to call the attention of the court to the omission now complained of, if it were deemed to be inadequate to meet the particular facts involved. In the absence of such request, it will be deemed that the charge was satisfactory at the time, and plaintiff will not now be heard to complain. This assignment will be denied.
The sixth and seventh errors assigned also deal with specific portions of the charge which it is claimed is error. It is not pointed out in what particular the language used is erroneous, and, when taken in connection with the charge as a whole, we fail to see wherein any error was committed. The insistence in brief seems to be that these particular portions of the charge are erroneous largely because of their relation to the charge as a whole, and not because of any error inherent in the particular language complained of separate and apart from other portions of the charge. But since it is not pointed out in what particular these two portions of the charge are erroneous, the assignments are insufficient to call for review by this court, and they are overruled.
It is next insisted that the court erred in referring to the fact that the plaintiff was injured while engaged in handling a car of liquor. And while it is freely admitted that the error complained of in this assignment is not sufficient of itself to warrant a reversal of the judgment, nevertheless, it is insisted that it constitutes a part of a jigsaw puzzle, which, when taken as a whole, is sufficient to demand a reversal. As above set out, we have examined the charge as a whole, and we fail to find any such condition as to justify a reversal on the charge of the court. And we might observe that we *Page 504
think the violation of law by plaintiff had a direct bearing on the accident and injury about which he here complains. In the first place, the initial collision seems to have resulted from the reckless abandon with which plaintiff was transporting a cargo of illicit liquor, and that his position at the time he was struck was brought about by his own negligent acts; that he did, in fact, create a sudden emergency for Mr. Crihfield to face, and the plaintiff's injuries were brought about by his own wrongdoing. And while the possession of the liquor might have been only incidental, we think the jury warranted in finding that the reckless speed with which plaintiff was driving was prompted by his anxiety over his cargo of liquor. In other words, it constituted a circumstance to which the jury could look along with other circumstances. It was a fact proven in the case, and, being such, was open to comment by the court. And unless his comments on this feature of the evidence constituted such positive error as to be prejudicial to plaintiff's rights, then no reversal should be granted for this reason. We fail to find any such prejudice, and this assignment of error is overruled.
The ninth assignment of error complains that the court placed undue vocal emphasis upon the doctrine of "sudden emergency." This assignment cannot be considered by this court. In the first place, there is no way whereby this court may know what vocal emphasis the trial judge employed in charging the jury. It is not made to appear from the record, could not be made to appear from the record, and, consequently, is not subject to review. This court can only review matters appearing in the record, and cannot assume to pass upon the inflection, feeling, or lack of feeling on the part of the trial judge, otherwise than appears from the language used by him in charging the jury. This assignment must be denied.
The tenth, eleventh, and twelfth errors assigned question the conduct of the trial judge in giving the jury a supplemental charge, after it had made a preliminary report that it was unable to reach a verdict. It is insisted that the trial judge coerced the jury into returning a verdict. There is no insistence that the jury was coerced to return a verdict in favor of the defendants, but only that it was coerced into returning a verdict. We think it would unnecessarily prolong this opinion to quote the discourse which took place between the court and a member of the jury relative to the failure to reach a verdict, the possibility of reaching such verdict, and the advisability of same. We think it sufficient to say that the court did indicate a desire that the jury arrive at a verdict. But it is not pointed out wherein this was prejudicial to plaintiff, and we think there is no showing that any such prejudice resulted. It might be observed in this connection that this was the second trial of the case, and that considerable time had been consumed on this second trial. It was *Page 505
natural that the trial judge would be anxious to get some tangible results from the time and expense of so long a trial. And we think it not improper for the court to impress upon the jury the fact that it was their duty to arrive at a verdict of some character. When properly analyzed, we think the charge of the court complained of went only to this extent, and that it was not objectionable, at least not sufficiently objectionable to constitute grounds for reversal. See 14 R.C.L., p. 750; 64 C.J., p. 590.
It is next insisted that the court erred in refusing to give in charge to the jury plaintiff's special request as follows:
"I charge you gentlemen of the jury that the fact that the plaintiff was transporting whiskey at the time of the accident it was not to be looked to by you in arriving at your conclusions as to liability, that this is admissible only for the purpose of affecting the credibility of the plaintiff. That a person can recover for an injury even tho he was engaged at the time in a law violation."
We think this special request was properly refused. It assumes that plaintiff was, at the time of the receipt of the injuries complained of, transporting whisky, when he was only attempting to unload and conceal the whisky. It is true that the transportation of the whisky was closely related to the time when the injury was inflicted, but it is well settled that a judgment will not be reversed for refusal to give a special request in charge to the jury, unless such special request is strictly accurate. Pennsylvania R. Co. v. Naive, 112 Tenn. 239, 79 S.W. 124, 64 L.R.A., 443.
The provision in the request to the effect, "That a person can recover for an injury even tho he was engaged at the time in a law violation," is not a complete statement of the law applicable to such cases. A person cannot recover for an injury received by him while engaged in violating the law, where such violation of the law was the proximate cause of the injury. In other words, the special request submitted as not a full and accurate statement of the law applicable to such cases, and, failing in this, it was properly refused by the trial judge. And, in addition to this fact, the general charge of the court had particularly charged the jury that plaintiff would be entitled to recover, if his injuries were proximately caused by the negligence of Crihfield. This charge was given without qualification, and sufficiently informed the jury that the fact that plaintiff was engaged in hauling liquor immediately prior to the injury would not constitute a bar to his recovery. This assignment will be overruled.
It is next insisted that the court erred in permitting counsel for defendants, over objections, to read to the jury in toto a certain indictment found by the United States District Court at Lexington, Ky., charging plaintiff and others with violating certain laws of the United States. The record discloses that counsel for defendants *Page 506
was engaged in cross-examining the plaintiff. He was asked if he had not been engaged in purchasing and transporting illicit liquor since the year 1932, and if he had not been indicted in the United States District Court along with other men as a liquor runner. This was objected to as being immaterial, and the objection was overruled. Plaintiff admitted that he had been indicted and found guilty of the charge of transporting whisky. As counsel proceeded with the cross-examination, this question was asked: "Q. There were three counts in this indictment, weren't there, against you — to refresh your recollection let me read it to you: `The Grand Jury of the United States of America, impaneled —.,'" At this point counsel for plaintiff interposed as follows: "I object to the reading of the indictment." To which the court responded, "Let him ask him." And counsel for plaintiff responded, "Except." Thereafter cross-examining counsel continued to cross-examine the plaintiff, and asked him numerous questions relative to the contents of the indictment. But no further objection was made to the questions or answers. It will be observed that the objection made did not specify any grounds, or point out wherein the question asked was objectionable. And it will be observed that the action of the trial judge went only to the extent of permitting counsel to complete his question. In other words, the trial judge only said, "Let him ask him." The further reading from the indictment for the purpose of refreshing the mind of the witness was not questioned, and the court was not asked to exclude same. No further objection was made. But aside from this the plaintiff admitted the truth of the fact that he was indicted, together with the charges against him and his conviction thereunder. The exception made was general without specifying the ground of the exception, and was insufficient under the rule applicable in this state.
"General exception to the admission of evidence, made on the trial below, will not be noticed in this court." Powers v. McKenzie, 90 Tenn. 167, 16 S.W. 559.
And the objection is insufficient to call for a reversal of the case by this court for the further reason that the facts proven over objection were freely admitted by plaintiff. Our Supreme Court has gone so far as to hold that evidence of the transportation of whisky obtained unlawfully admitted upon the trial of a criminal charge would not constitute ground for reversal, where defendant took the stand and admitted similar facts. See Hood v. State, 148 Tenn. 265, 255 S.W. 51. Also Zachary v. State, 144 Tenn. 623, 234 S.W. 758.
Under this condition the admission of the evidence could have done the plaintiff no injury, and it is well settled that the wrongful admission of incompetent evidence will not constitute grounds for reversal, where it could have done the party complaining no injury. *Page 507
Ellett v. Embury, 142 Tenn. 444, 217 S.W. 818; Lewisburg N.R. Co. v. Hinds, 134 Tenn. 293, 183 S.W. 985, L.R.A., 1916E, 420.
We have reached the conclusion that the facts in this case presented questions for the determination of the jury to pass upon, and that the case was submitted to the jury with proper instructions. It is highly possible that the jury was somewhat influenced by the fact that plaintiff was a confessed law violator, but he alone is to blame if the fact that his lawlessness militated against him, and his complaint is not in shape to be translated into any legal benefit at this stage of the proceedings. We are inclined to the opinion that a new trial, if granted, would most likely result in a verdict similar to that before us. However, we are not resting this opinion upon that consideration, but upon the conclusion that no prejudicial error was committed in the cause of the trial warranting a reversal of the judgment. All errors assigned will be overruled, and the judgment of the lower court will be affirmed.
Portrum and McAmus, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/100910/ | 271 U.S. 552 (1926)
MORSE DRYDOCK & REPAIR COMPANY
v.
STEAMSHIP NORTHERN STAR, ETC., ET AL.
No. 326.
Supreme Court of United States.
Argued May 6, 7, 1926.
Decided June 7, 1926.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
*553 Mr. Arthur H. Stetson for petitioner.
Mr. Frank A. Bernero, with whom Mr. Gerson C. Young was on the brief, for respondents.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner libelled the Northern Star alleging a lien for repairs furnished in New York, the home port of the vessel. The intervenor, Luber, set up a mortgage from the owner, the American Star Line, Inc., for over a million dollars, and the question here is which is entitled to priority. Both the District Court and the Circuit Court of Appeals decided in favor of the mortgage. 295 Fed. 366. 7 Fed. (2d) 505. A writ of certiorari was granted by this Court. 268 U.S. 683.
The mortgage, originally given to the United States when the ship was purchased, was executed and recorded on August 11, 1920, and a certified copy was left and kept with the ship's papers from September 23, 1920, but it was not endorsed upon the ship's papers until June 27, 1921. The repairs were made between November 14 and November 27, 1920, at the owner's request. One of the covenants of the mortgage was not to suffer or permit to be continued any lien that might have priority over the mortgage, and in any event within fifteen days after the same became due to satisfy it. Another covenant, probably shaped before the then recent Ship Mortgage Act, *554 1920, June 5, 1920, c. 250, § 30, 41 Stat. 988, 1000, required the mortgagor to carry a certified copy of the mortgage with the ship's papers, and to take other appropriate steps to give notice that the owner had no right to permit to be imposed on the vessel any lien superior to the mortgage. On these facts we feel no doubt that the petitioner got a lien upon the ship, as was assumed by the Circuit Court of Appeals. Ship Mortgage Act, Subsection P, 41 Stat. 1005.
The owner of course had `authority to bind the vessel' by virtue of his title without the aid of statute. The only importance of the statute was to get rid of the necessity for a special contract or for evidence that credit was given to the vessel. Subsection R, it is true, after providing that certain officers shall be included among those presumed to have authority from the owner to create a lien for supplies, goes on that "nothing in this section shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor." But even if this language be construed as dealing with anything more than the authority of a third person to represent the owner so as to create a lien, still when supplies are ordered by the owner the statute does not attempt to forbid a lien simply because the owner has contracted with a mortgagee not to give any paramount security on the ship. The most that such a contract can do is to postpone the claim of a party chargeable with notice of it to that of the mortgagee.
The petitioner's lien was valid and on the other hand there is equally little doubt that the mortgage was valid as soon as it was executed and recorded, before the endorsement upon the ship's papers. This view seems to *555 us plainly to be taken in Subsections C and D of the Act. So the question more precisely stated is whether the above-mentioned covenants postponed the lien to the mortgage security, as they would seem to do on the facts of the case but for the language of the statute that we shall quote.
The statute, after requiring the instrument to be recorded in the office of the Collector of Customs of the port of documentation, in order to be valid against persons not having actual notice, (Subsection C,) provides in Subsection D, (a) that "A valid mortgage which . . . . shall in addition have, in respect to such vessel and as of the date of the compliance with all the provisions of this subdivision, the preferred status given by the provisions of Subsection M, if (1) the mortgage is indorsed upon the vessel's documents in accordance with the provision of this section," with other conditions, (b) upon compliance with which the mortgage is called a `preferred mortgage.' Then follows in (c) a statement of what shall be indorsed. By (d) the indorsement is to be made by the collector of customs of the port of documentation or by the collector of any port in which the vessel is found if so directed by the former, and no clearance is to be issued to the vessel until such indorsement is made. Subsection M gives priority to a preferred mortgage over all claims against the vessel "except (1) preferred maritime liens and (2) expenses and fees allowed and costs taxed, by the court." By (a) of the subsection "`preferred maritime lien' means (1) a lien arising prior in time to the recording and indorsement of a preferred mortgage in accordance with the provisions of this section." Obviously the statute taken literally may work harshly if by any oversight or otherwise the collector does not do his duty, and excellent reasons could be found for charging the petitioner with notice of a document that both was recorded and was kept with the ship's papers. *556 But the words of the statute seem to us too clear to be escaped. The mortgage is made preferred only upon compliance with all the conditions specified, one of which is indorsement, and the maritime lien is preferred if it arises before the recording and indorsement of the mortgage. We see no room for construction, and there is nothing for the courts to do but to bow their heads and obey.
Decree reversed.
The separate opinion of MR. JUSTICE McREYNOLDS.
The repairs for which petitioner claims a lien were made at the vessel's home port, and there is nothing whatever to show any effort to bind her for their payment by special agreement. Under such circumstances the general maritime law gives no lien. If the repair company acquired one it arose from the provisions of the Act of 1920, and not otherwise. While Subsection P, § 30 of that Act declares generally that any person furnishing repairs shall have a lien on the vessel without allegation or proof that credit was extended to her, Subsection R of the same section expressly provides that "nothing in this section shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor."
When the petitioner furnished the repairs at the home port there was on the public record in the Collector's office at that same port a duly-authenticated bill of sale and a purchase money mortgage (a copy of the latter was also on board), which disclosed an express agreement by the owner "not to suffer nor permit to be continued any lien, encumbrance or charge which has or might have priority *557 over this mortgage of the vessel." The petitioner had easy access to these instruments and, by exercising slight diligence, might have ascertained their contents. They deprived the owner of both right and authority, within the true intent of the statute, to create the lien now claimed by the repair company. The purpose of this enactment was to protect honest furnishers who exercise diligence, and not to offer a wide-opened door for crooked transactions.
The trial judge held that under the circumstances the petitioner acquired no lien. I agree with him, and even venture to think that the argument in support of his conclusion cannot be vaporized by mere negation. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3402576/ | The court erred in sustaining the award of the Industrial Board, in the particular of awarding weekly compensation in the sum of $9.515. The evidence demanded a finding that the weekly compensation be allowed in the sum of $15.
DECIDED NOVEMBER 20, 1940.
The evidence required a finding by the Industrial Board, as to the issues under review, that the claimant was employed as an electric lineman, at the time of his injury, on an R. E. A. project, at seventy-five cents per hour; that under government regulations he was not permitted to work any week more than forty hours, at the rate of seventy-five cents per hour; that his work was regular; that at all times he was ready to put in forty hours weekly, that he made an average earning per week, for a period of about eleven months previous to the accident, of $19.03; that the work was all outdoor work; that during any week of the above period he did not work the full forty hours; that he was allowed under the employment to work the forty hours unless he was prevented from so doing because of weather or lack of material. He was asked, "How many hours were you allowed to make a week?" and answered, "Forty hours." He was asked, "Why were you only allowed to make forty hours a week?" and whether it was "because of government regulations?" He answered, "Yes." Again he was asked, "If you failed to make forty hours per week, why was it?" He answered, "On account of the weather or lack of material." The board, as to the issues under review, found that the average weekly wage was $19.03 and (the incapacity being total) awarded compensation in the sum weekly of $9.515 as fifty per cent. of the average weekly wage. The claimant appealed to the superior court, where the award was sustained. The claimant excepted, contending that the proper award weekly as compensation should have been $15, representing fifty per cent. of a regular weekly wage of $30, arising at the rate of seventy-five cents per hour for a weekly period of forty hours.
The Code, § 114-404, provides: "When the incapacity to work resulting from an injury is total, the employer shall pay or cause to be paid . . to the employee during such total incapacity a weekly compensation equal to one half of his average wages." § 114-404. "The compensation of an injured person shall be computed on the basis of the regular wage received by the employee on the date of the accident." § 114-402. In Carter v. Ocean Accidentc. Co., 190 Ga. 857 (11 S.E.2d 16), the Supreme Court held: "The compensation of an injured person under the workmen's compensation law shall be computed on the basis of the regular wage received by the employee on the date of the accident. Code, § 114-402 *Page 680
Though an employee had for ten months before the accident worked only three days per week, his `regular wage' was five dollars per day, and this daily wage is the basis upon which his compensation must be computed. To obtain a weekly basis the daily wage should be multiplied by six, the number of work days per week, rather than by three . . which is the number of days per week the employee had been working." The court observed further that "While he was paid so much per piece, this amounted to approximately five dollars per day," and that "These facts establish the regular wage received by the employee on the date of the accident, which is the basis fixed by the statute upon which compensation must be computed. . . We do not have in the law . . any authorization for using an average weekly wage, but are restricted solely to the regular wage received on the date of the accident. If a regular wage has been established and the employee is receiving it on the date of the accident, then that, and no other, is the basis on which compensation must be computed." In the instant case, while the claimant was ready at all times to work during a week, and at seventy-five cents per hour for a period weekly not to exceed forty hours, but for that period of time, full time, unless prevented from so doing by the weather or lack of material, and while his work was regular, the defendants in error contend, though they admit an average weekly earning of $19.03, that there was no employment shown to be by the day, butonly by the hour, that no daily wages were shown, and that the claimant at no time ever earned at the hourly rate to the full extent of the weekly forty hours. In this connection we quote from the brief: "The basis for compensation, except for admission of insurer, is 75¢ because there is no evidence that employee made more than 75¢ in one day or one week. Only a per-hour wage was shown, and that he was working when hurt." The literal evidence, it must be admitted in the light of the contentions of the defendants in error, fails to disclose any reference to a day as such; or whether agiven number of hours constituted a day; or whether the contract was for any definitely stipulated number ofdays as such, per week; or whether for five days at eight hours each, or for four days at ten hours each; or whether there could be any earnings for overtime work, at a time-and-half-time rate; or whether for overtime beyond the hours constituting a day; or whether beyond forty hours constituting a week; or whether *Page 681
the work might be daily at any uneven number of hours, with hours lost on one day regainable on a subsequent day or days.
The court must assume that all material facts were proved, and consider the assignments of error in the light of the evidence submitted. The evidence does, however, establish that there was definite employment, and regular employment by the week, at the rate of seventy-five cents per hour, for full-time work of 40 hours during a week, unless prevented from working "onaccount of the weather or lack of material." The claimant was ready and available for work at all times. None of the above evidence was contradicted by the defendants in error. But, as contended by them, there was no evidence certain as to what constituted a day's
work as such, with reference to any stated number of hours comprising a day. While this is true, we do not think the lack of literal evidence is fatal, applying the maxim, that is certain which may be rendered certain. "We do not have in the law . . any authorization for using an average weekly wage, but are restricted solely to the regular wage received on the date of the accident. If a regular wage has been established and the employee is receiving it on the date of the accident, then that, and no other, is the basis on which compensation must be computed." Carter v. OceanAccident c. Co., supra. We look to the evidence to determine whether the wage on the day of the accident can be made certain. We have the definite factors ofemployment by the week, a week of forty hours, and payper hour. Under Carter v. Ocean Accident c. Co.,
supra, we have the definite factor of six days as constituting a work week. From these known factors it becomes certain that an average work day must consist of not less than 6 2/3 hours, and at 75 cents per hour will consist of not less than $5 as average daily wages. An average of less hours per day would not render forty hours available per week; an average of more per day would run the number of hours per week into overtime. Consequently the average earnings per week would be, in the absence of other factors, $30, upon which would be figured weekly compensation. But there are other factors, those of weather and lack of material; and under the evidence these factors had prevented the claimant from ever earning the full $30 weekly, but only an average of $19.03, the sum weekly the defendants in error contend to be the correct amount on which weekly compensation should be figured, and as found by the board *Page 682
and approved by the court. We look to these factors as they were shown to have affected the daily wage on thedate of the accident. As to the factor of weather, in the absence of evidence we must assume that the periods of good and bad weather followed their usual pattern, that of existing in sequence, so that in good weather the work was steady, and in bad weather the work was broken or suspended. As to the factor of lack of material, in absence of evidence we must assume that employment was for full performance save only as that performance was prevented by lack of material. The evidence is conclusive to the effect that the claimant was working on the date of the accident, from which it must be inferred that the weather was such as not to prevent steady work on that day, and from which it must be inferred that there was no lack of material to prevent steady work on that day. We think these exceptions were matters of defense and should have been proved by the defendants in error, if they were in any way abridging that particular day of work. No evidence to that effect was offered. Moreover, no evidence was offered that these factors were obtaining over from the weeks before the accident, and were affecting the week of the accident, or would in any way have affected the future employment of the claimant had he not been injured, so as to prevent him in the future from working the full weeks and earning weekly $30. On the date of the accident the claimant was earning $5, without abridgment; that wage established is the criterion. It follows that the amount of the weekly wage on which the compensation must be computed is $30, rendering the amount of weekly compensation $15. Under Carter v. OceanAccident c. Co., supra, the rule is not altered because there might be parts of the week when the claimant might not have worked, when the average (approximate) wage is established on the date of the accident, as was in this case.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3995557/ | I concur in the foregoing opinion because it follows the previous decisions of this court, although a review of them convinces me that the principles announced therein were not strictly logical nor in harmony with what seems to me the better authority. If this were a new question I should not hesitate to dissent. But the rule being adopted, and the bar of the state having advised their clients thereunder, we should be slow to overrule it. Especially is this true where, knowing the rule, parties can by contract protect themselves as to the loss. The rule *Page 652
itself is not bad, although the reasons which led to its adoption were. The continuance of the rule can work no great hardship, although its first announcement may have because of rights which had arisen prior thereto. It is of the utmost importance that we should adopt a proper rule when the question is first presented; but it is hardly of less importance that stability should attach to our decisions and not require litigants to appeal to this court to determine whether our previous decisions are still the law. I therefore concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554101/ | HTTP/1.1 200
Date: Fri, 07 Aug 2020 19:07:51 GMT
Content-Type: application/pdf | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3995559/ | MILLARD, C.J., dissents.
The respondent sustained a minor injury while engaged in unloading crushed rock from a barge on Hood Canal. His claim for compensation was denied by the department of labor and industries, upon the ground that the injury was sustained while he was engaged in an off-shore occupation, not under the protection of the state workmen's compensation act. On appeal to the superior court, the department was reversed, and judgment entered directing the department to pay the respondent the sum of one hundred forty dollars, with costs. The trial court found: *Page 100
"That said plaintiff was employed on the shore, and a portion of the time upon the barge; that the employment and occupation of the plaintiff at the time he received his injury pertained solely to local matters having no direct relation to navigation and commerce."
The respondent's employer had a contract with the state to deliver crushed rock to storage dumps along a state highway. The rock was transported from a point near Charleston, on barges, to Hoodsport, on Hood Canal, where it was transferred into bunkers on shore, to be thereafter delivered by trucks to the place of use. In unloading, a clamshell shovel, operated from the shore, was used. When the cargo became low or scattered, it was necessary for workmen to go upon the deck and gather the rock into piles so that it could be taken up by the shovel. A part of the duties of the respondent was to go on the barge and assist in this operation. While so engaged, his shovel struck a protruding nail or bolt, causing an injury to his right forearm, the foundation of his claim before the department.
[1] The contention of the department is that respondent's injury is covered by the provisions of the longshoremen and harbor workers' compensation act, 44 Stat. 1424, Title 33, U.S.C.A., § 901 et seq., and not within the protection of the state workmen's compensation act. We are concerned here, of course, only with the question whether the state law gives a remedy to the respondent. It may be taken for granted that the letter of the workmen's compensation act is broad enough to cover his case, if it is competent for the state to supply a remedy. The longshoremen's act provides:
"Compensation shall be payable under this chapter in respect of disability or death of an employee, but *Page 101
only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. . . ." Title 33, U.S.C.A., § 903.
It will be seen that protection is afforded off-shore employees injured upon navigable waters of the United States, only where the state may not validly provide protection by its own laws. This leaves for solution, in any given case, the question whether the employment is of such character that the state may validly make its compensation act applicable thereto. In other words, is the employment such that, independently of the longshoremen's act, the state has such jurisdiction as will sustain the application of its compensation law to employees engaged in maritime work?
In Zahler v. Department of Labor Industries, 125 Wn. 410,217 P. 55, we said:
"There is, it must be conceded, a field occupied so exclusively by general Federal maritime law that the rules of which, with reference to that field, cannot be locally impaired by any state legislation. Speaking generally we think it may be safely said that when there is drawn in question a claim of right or obligation arising out of a purely maritime tort, a purely maritime employment or a purely maritime contract, such claim must be determined by the rules of the uniform Federal maritime law, regardless of any state legislation which may, in terms, seem to provide otherwise. Nor can state legislation impose upon an employer any obligation to contribute to a fund to pay awards under a workmen's compensation law, unless it affords protection to the employer as against claims of workmen or their dependents payable out of the fund to which the employer is compelled to contribute. [Citing cases] . . . all dealing with the rights of purely maritime employees to sue in the courts for injuries received, or the liability of employers to contribute *Page 102
to the accident fund under our workmen's compensation law because of having in their employ persons engaged in purely maritime service."
In the recent case of Dewey Fish Co. v. Department of Labor Industries, 181 Wn. 95, 41 P.2d 1099, it is said:
"Under the well-established rule, as we understand it, even though the operations be maritime in their nature and the contract of employment be considered a maritime contract, still if the operations and the employment have no direct relation to commerce and navigation, and are local in character and such as will not interfere with the uniformity rule, the state may assume jurisdiction."
The court there quotes from Southern Pac. Co. v. Jensen,244 U.S. 205, 37 S.Ct. 524, Ann. Cas. 1917E, 900, the rule to be applied in determining the manner and the extent of the permissible invasion of admiralty law by state legislation:
"And plainly, we think, no such legislation is valid if it contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations."
In the Dewey Fish Co. case, we held that workmen engaged solely in driving piles for the construction of fish traps, had nothing whatever to do with navigation:
"Their work is confined to building and maintaining fish traps founded in the earth beneath the waters; that, at most, such work has only an incidental relation to navigation and commerce; and that bringing them within the act will work no material prejudice to the general admiralty law or interfere with its uniformity; .. ."
A similar conclusion was reached in the case of Eclipse MillCo. v. Department of Labor Industries, *Page 103 141 Wn. 172, 251 P. 130, involving workmen employed upon navigable waters in floating logs for formation into rafts, preparatory to towing. This case, with its companion case,Sultan R. T. Co. v. Department of Labor Industries, Id., involving the handling of logs after the raft had reached its destination and been broken up, was affirmed by the supreme court of the United States in Sultan R. T. Co. v. Department ofLabor Industries, 277 U.S. 135, 48 S.Ct. 505.
The respondent contends that the present case is controlled in his favor by the Dewey and Sultan cases, but we think there is an essential distinction between the facts in those cases and in the one before us. The employment involved in the former cases had no direct relation to commerce and navigation and was so local in character as not to interfere with the uniform rule; while in this case, the employment of respondent in unloading a barge was a maritime transaction not of purely local concern, within the holding of the United States supreme court.
In Employers' Liability Assurance Corp. v. Cook,281 U.S. 233, 50 S.Ct. 308, a regular employee of the Ford Motor Company, open for any kind of work, was instructed, as part of his contract of employment, to assist in unloading a steamship then tied up at dock at Houston, Texas. While at work in the hold of the vessel, he sustained a fatal injury. The Ford Motor Company carried a policy of workmen's compensation insurance with the assurance corporation, in accordance with the provisions of the workmen's compensation act of Texas. The personal representative of the employee presented a claim to the industrial accident board for compensation because of his death. The claim was denied and suit brought, which, by transfer to the Federal courts, reached the circuit court of appeals *Page 104
for the fifth circuit, and ultimately, the supreme court. The circuit court of appeals held:
"We think it fairly can be said that the matter of unloading these two ships of the Ford Motor Company at rare intervals was `of mere local concern, and its regulation by the state will work no material prejudice to any . . . feature of the general maritime law.'" 31 F.2d 497.
The supreme court, in reversing the circuit court, said:
"Whether Cook's employment contemplated that he should work regularly in unloading vessels or only when specially directed so to do is not important. The unloading of a ship is not matter of purely local concern as we have often pointed out. Under the circumstances disclosed the State lacked power to prescribe the rights and liabilities of the parties growing out of the accident."
In Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, in reversing the supreme court of Pennsylvania, which had held the state compensation law applicable in the case of an employee injured while painting angle irons, as part of the necessary repairs in the engine room of a vessel, tied to a pier, the court said:
"The insistence in behalf of appellee Span is that when hurt he was doing work of a nature which had no direct relation to navigation or commerce; and to permit application of the State Workmen's Compensation Act would work no material prejudice to the essential features of the general maritime law as in GrantSmith-Porter Co. v. Rohde, 257 U.S. 469. But so to hold would conflict with principles which we have often announced. GreatLakes Dredge Dock Co. v. Kierejewski, 261 U.S. 479, 480, 481;Gonsalves v. Morse Dry Dock Repair Co., 266 U.S. 171, 172;Robins Dry Dock Co. v. Dahl, 266 U.S. 449, 457; Messel v.Foundation Co., 274 U.S. 427, 434; Northern Coal Dock Co. v.Strand, 278 U.S. 142, 144.
"What work has direct relation to navigation or *Page 105
commerce must, of course, be determined in view of surrounding circumstances as cases arise."
In the course of this opinion, the court had occasion to refer to Sultan R. T. Co. v. Department of Labor Industries,supra, characterizing the operations involved there as having relation to the nature of the occupations of men engaged in logging.
In Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, Ann. Cas. 1917E, 900, the railroad company operated a steamship between New York and Galveston. An employee of the company was killed while engaged in unloading a ship at a pier in the North river, New York harbor. The court held that the New York workmen's compensation act could not constitutionally govern the case of one so injured upon navigable waters while engaged in maritime service, holding that the state statute attempted to give a remedy unknown to the common law, incapable of enforcement by the ordinary processes of any court, and was not saved to suitors from the grant of exclusive jurisdiction to the Federal courts.
In Nogueira v. New York, N.H. H.R. Co., 281 U.S. 128,50 S.Ct. 303, there was involved the right of an employee injured on a float belonging to the railroad company. The float was a vessel used in the transportation of railroad cars, and at the time of injury, lying in navigable waters at a pier in the East river, New York harbor. The employee was engaged by the railroad company as one of a gang of freight handlers in loading freight into cars on the float. He was injured while using a hand truck in carrying a bale of paper over a plank running from the dock to the float at a steep incline. The contention was made that the car float was used as an adjunct of railroad transportation in interstate commerce, and that it was *Page 106
not the intention of Congress to substitute the remedy under the longshoremen's act for that of the Federal employers' liability act. The court held that the car float, being in navigable waters, was subject to the maritime law as much as any other vessel, and, since the injury was within the exclusive admiralty and maritime jurisdiction, as much as was the employee inSouthern Pac. Co. v. Jensen, supra, recovery for the injury through "workmen's compensation proceedings" could not "validly be provided by state law."
In State Industrial Com. v. Nordenholt Corp., 259 U.S. 263,42 S.Ct. 473, 25 A.L.R. 1013, a longshoreman was injured on a dock while engaged in unloading a vessel. It was decided that, in such a case, where the injury took place on an extension of the land, the maritime law did not prescribe the liability and the local law had always governed. The state workmen's compensation law was accordingly held to be applicable.
In the language of Chief Justice Hughes in the Nogueira
case, supra:
"The distinction was thus maintained between injuries on land and those which were suffered by persons engaged in maritime employment on a vessel in navigable waters."
This distinction is further illustrated in the recent case ofMinnie v. Port Huron Terminal Co., 295 U.S. 647, 55 S.Ct. 884, where a longshoreman was injured by a blow received from a swinging crane, while unloading a vessel lying in navigable waters. He was struck while on the deck of the vessel and precipitated to the wharf. In holding that the case was covered by the maritime law, the court, speaking through the chief justice, said:
"It was that blow received on the vessel in navigable water which gave rise to the cause of action, and the maritime character of that cause of action is not altered *Page 107
by the fact that the petitioner was thrown from the vessel to the land."
Continuing, the court refers to the case of Smith Son v.Taylor, 276 U.S. 179, 48 S.Ct. 228, as illustrating the converse of the case then before the court, saying:
"There a longshoreman, employed in the unloading of a vessel at a dock, was standing upon a stage that rested solely upon the wharf and projected a few feet over the water to or near the vessel. He was struck by a sling loaded with cargo, which was being lowered over the vessel's side and was knocked into the water, where some time later he was found dead. It was urged that the suit was solely for the death which occurred in the water and hence that the case was exclusively within the admiralty jurisdiction. We held the argument to be untenable. We said: `The blow by the sling was what gave rise to the cause of action. It was given and took effect while deceased was upon the land. It was the sole, immediate and proximate cause of his death. . . . The substance and consummation of the occurrence which gave rise to the cause of action took place on land.'"
In the Nogueira case, the court held that a car float in navigable waters was subject to the maritime law like any other vessel. So here, the barge, although towed, was a vessel within the maritime law. That the cargo carried was crushed rock, rather than coal, iron, or merchandise, made the operation no less a maritime one, exclusively under Federal jurisdiction and not within the protection of the state workmen's compensation act.
In the recent case of Puget Sound Bridge Dredging Co. v.Department of Labor Industries, 185 Wn. 349,54 P.2d 1003, where the liability of an employer for the payment of industrial insurance premiums was involved, it was said: *Page 108
"From these decisions, it is clear that, primarily, the criterion by which it is to be determined whether the claim of an injured workman comes under admiralty jurisdiction or under a state compensation act is the place where the injury was sustained. If the injury occurs on navigable water, the rights of the workman and the liability of his employer are to be determined by maritime law. If he is injured on land, his rights are governed by the state compensation act, notwithstanding he may be engaged in maritime work."
The judgment of the trial court is accordingly reversed, and the cause remanded with direction to dismiss.
MAIN, MITCHELL, BEALS, BLAKE, TOLMAN, HOLCOMB, and STEINERT, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523758/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 2, 2020 *
Decided April 8, 2020
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-1736
NATHANIEL JACKSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 12-cv-1084
ALTON ANGUS, et al., Michael M. Mihm,
Defendants-Appellees. Judge.
ORDER
This is the second time that Nathaniel Jackson’s lawsuit—his third against staff at
Pontiac and Dixon Correctional Facilities—comes to us on appeal. Jackson maintains
that prison staff violated his constitutional rights when they transferred him twice to
Dixon Special Treatment Center for mental-health treatment against his will.
See 42 U.S.C. § 1983. In a prior decision, we vacated the entry of summary judgment on
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1736 Page 2
claim-preclusion grounds and remanded the case for further proceedings on Jackson’s
claims (1) that certain mental-health officials at Pontiac and Dixon violated his due
process rights during the transfers and (2) that, during the second transfer, Pontiac’s
tactical team used excessive force when extracting him from his cell. See Jackson v.
Angus, 686 F. App’x 367 (7th Cir. 2017). On remand, the district court entered summary
judgment for the remaining defendants. Jackson appeals, and we affirm.
During Jackson’s incarceration from 2002 to 2016, various mental health
professionals diagnosed him with serious mental illnesses (including schizophrenia and
psychotic disorder), and he was transferred between different prisons several times—
sometimes at his request and other times involuntarily. This suit concerns his last two
transfers (in March 2011 and July 2012), over his objections, from Pontiac to Dixon
Special Treatment Center (STC)—a unit specializing in mental-health care. See ILL.
ADMIN. CODE 415.20(k).
In late 2010, Jackson was placed in segregation at Pontiac with a psychiatric
referral for paranoid behavior. Soon after, Dr. Alton Angus, a psychologist, attempted
to evaluate his mental-health status and needs. But Jackson refused to discuss his
mental-health history, accused Dr. Angus of harassing him, and threatened the
psychologist with a lawsuit. Dr. Angus conferred with other mental-health staff about
where to house Jackson after his release from segregation and determined that he
needed a mental-health placement.
A few days later, Dr. José Mathews, a Pontiac staff psychiatrist, recommended
Jackson’s transfer to Dixon STC. After reviewing Jackson’s medical records and
interviewing him in his cell (Jackson refused to come out), Dr. Mathews diagnosed
paranoid schizophrenia, paranoid personality disorder, and possible delusional
disorder. Jackson was not a danger to anyone, Dr. Mathews concluded, but he would
struggle to adjust to general population because of his paranoid behavior. If Jackson did
not consent to the transfer, Dr. Mathews asked the Placement Review Board to consider
sending him to Dixon STC against his will.
Dr. Angus then delivered a written notice of the transfer to Jackson’s cell and
sought his consent. Jackson refused. Dr. Angus tried to read him the notice, which
explained how he could request a hearing before the Board and present evidence to
contest the transfer, but Jackson grew hostile and refused to accept a copy of the notice.
Jackson did not request a hearing and refused to participate when the Board met
at the month’s end to consider the transfer. The Board gave its approval and, in a
No. 19-1736 Page 3
memorandum, informed Jackson that it based its decision on Dr. Mathews’s
recommendation and its own review of Jackson’s psychiatric records. Jackson was told
he could request a review of the decision at any time, and he was entitled to a hearing
every six months.
Jackson was transferred from Pontiac to Dixon STC in March 2011, the first of the
two transfers at issue in this appeal. Dr. Jamie Lynn Chess, a staff psychiatrist who
conducted an initial mental-health screening, observed that Jackson was illogical,
paranoid, agitated, and guarded, and she diagnosed potential paranoid schizophrenia.
Over the next six months, Jackson refused to attend his scheduled mental-health
appointments or speak with mental-health staff who visited his cell. In August, he was
transferred out of Dixon STC and eventually returned to Pontiac, where he demanded
to be taken off the psychiatric roll call. Based on his demands, mental-health staff
stopped coming to his cell.
The following July, still at Pontiac, Jackson requested a mental-health evaluation.
A psychiatrist came to his cell, but Jackson refused to speak with him, and the
psychiatrist—after reviewing Jackson’s records—recommended a second transfer to
Dixon STC. Dr. Angus again visited Jackson in his cell to notify him of the proposed
transfer, and again Jackson became hostile, refusing to sign or accept the notice. When
the Board met a few days later and approved the transfer, Jackson refused to attend or
participate. He received a memorandum of the decision a few days later.
The second transfer at issue occurred in late July, when several Pontiac tactical
team officers came to Jackson’s cell to transfer him. After ordering him three times to
come out of his cell, they warned him that they would use pepper spray if he did not
comply. When he still refused, they dispensed two short bursts of pepper spray into his
cell. After the fourth order, he finally left his cell, and officers led him outside, where a
nurse flushed his eyes. The officers then brought him back into the prison, where they
changed him into a fresh jumpsuit, before taking him to Dixon STC. He remained at
Dixon STC until Dr. Chess recommended that he be transferred out of the facility in
February 2013.
Jackson brought this prisoner’s rights action against employees from Dixon and
Pontiac. He alleged, in relevant part, that mental-health staff violated his due-process
rights during the two transfers to Dixon STC, and that members of Pontiac’s tactical
team used excessive force when they extracted him from his cell during the second
transfer. The district court determined that the suit was barred by two prior lawsuits
that Jackson had filed in state court. On appeal, however, we vacated the judgment with
No. 19-1736 Page 4
regard to certain members of the mental-health staff at both prisons as well as Pontiac’s
tactical team because the suits did not cover the same claims and defendants.
See Jackson, 686 F. App’x at 372.
On remand, the remaining defendants moved for summary judgment, and
Jackson requested counsel. The district court briefly recruited law students to represent
him, but Jackson later told the court he did not want their representation. When the
court gave him the choice of proceeding with the students or representing himself, he
chose self-representation. He later requested counsel again, but the court denied his
request on grounds that the case’s subject matter was not complex, and there was no
indication that he could not handle the case himself.
The court ultimately entered summary judgment for the defendants. Jackson’s
procedural due-process claims failed because, although he had a liberty interest in
avoiding an involuntary transfer to a mental-health hospital, he had not identified any
fact question regarding the procedural protections he was afforded: He received notice
of the transfer, an opportunity for a hearing, and an opportunity to appeal the decision.
Substantively, he had not come forward with any evidence showing that he was not
mentally ill. Moreover, Jackson’s excessive force claim failed because, although he
asserted that he was viciously beaten and pepper sprayed by tactical team officers
during the cell extraction, video evidence contradicted these claims and showed only a
de minimis use of force. And no evidence supported Jackson’s claims that the footage
was tampered with.
On appeal, Jackson first challenges the district court’s ruling on his due process
claim, maintaining that the Board’s decisions to transfer him were not supported with
adequate findings or evidence. Relying on Vitek v. Jones, 445 U.S. 480, 493–96 (1980), in
which the Supreme Court held that a prisoner’s involuntary transfer to a mental
hospital implicated a liberty interest protected by due process, he insists that the
Board’s transfer decisions had to contain findings that he suffered from a grave mental
illness and be supported by evidence such as behavioral incidents or descriptions of his
symptoms. Jackson reads Vitek together with Section 415.70 of the Illinois
Administrative Code, which governs involuntary psychiatric medication of prisoners,
to mean that the Board needed to find that he was “gravely disabled.”
Jackson misapprehends Vitek as establishing an evidentiary threshold for an
involuntary transfer. Vitek held only that prisoners are entitled to notice and a hearing
before being subjected to the stigmatizing effect of a transfer to a mental hospital
together with mandatory behavior-modification treatment. Id. at 495–96. And Section
No. 19-1736 Page 5
415.70’s requirement of a “grave disability” finding is triggered only when prison staff
medicate a prisoner involuntarily. Jackson presented no evidence that Dixon STC was a
mental hospital that subjected him to mandatory programming or that he was
involuntarily medicated there. To the contrary, he admitted that the only difference
between general population and Dixon STC was that he had scheduled mental-health
appointments, which he could refuse to attend.
Under the Illinois Administrative Code, prison staff provided Jackson with all
the process he was due. See Vitek, 445 U.S. at 488. Before any transfer can take place to a
unit like Dixon STC that specializes in mental-health care, the code requires only a
certified recommendation by a staff psychiatrist. See ILL. ADMIN. CODE 503.150; 415.20.
Inmates who do not voluntarily consent to such a transfer must receive written notice of
their right to challenge the transfer recommendation at a hearing before the Board. Id.
Here, Jackson received written notice of both proposed transfers and, when he withheld
consent, Dr. Angus attempted to explain to him how to challenge the recommendations
at a hearing. Moreover, the Board provided Jackson with written decisions explaining
that it had approved the transfers based on the staff recommendations and its own
review of his psychiatric records. And though Jackson asserts that the psychiatric
reports reviewed by the Board were false, he did not take the opportunity to challenge
them before the Board, and he has not offered any evidence supporting his assertions.
We turn next to Jackson’s excessive force claims against the members of Pontiac’s
tactical team. Jackson argues that the district court improperly concluded that video
footage of the cell extraction in July 2012 showed only a de minimis use of force. In
affidavits, he insists that the correctional officers beat him, used pepper spray without
justification, twisted his wrists, and pressed him against the wall to provoke him when
they restrained him.
We agree with the district court that Jackson’s assertions do not create a factual
dispute because they are clearly contradicted by video evidence. See Scott v. Harris,
550 U.S. 372, 379–81 (2007). Correctional officers violate the Eighth Amendment when
they use force “maliciously and sadistically for the very purpose of causing harm,” but
not when they apply it in good faith to maintain or restore discipline. See Hudson v.
McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)).
Here, video footage shows that tactical team officers used two short bursts of pepper
spray on Jackson only after he disobeyed three direct orders to come out of his cell for
the transfer. See Rice ex rel. Rice v. Correctional Medical Servs., 675 F.3d 650, 668 (7th Cir.
2012) (use of pepper spray justified when inmate refused to comply with order to step
No. 19-1736 Page 6
out of cell). After he left his cell, they led him outside so that a nurse could flush his
eyes before changing him into a new jumpsuit to mitigate the effects of the pepper
spray. Though they kept him restrained, the video shows only incidental bumping,
which the district court properly concluded did not constitute excessive force.
See Fillmore v. Page, 358 F.3d 496, 504–05 (7th Cir. 2004) (inmate’s discomfort and sore
wrists from restraint during transfer were not actionable). To the extent that Jackson
continues to insist that the video footage is doctored or incomplete, he submitted no
evidence to support these assertions.
Finally, Jackson argues that the district court erred when it refused his request to
recruit new counsel after he grew dissatisfied with the law students’ representation. He
maintains that he did not have the resources to gather evidence on his own and that he
could not be expected to competently litigate his case while the defendants were
accusing him of being mentally ill. But the court properly considered both the
complexity of the case and Jackson’s ability to litigate it himself each time he requested
counsel. See Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc). Based on
Jackson’s ability to litigate multiple cases on his own for several years and our own
review of the evidence he submitted in support of his claims, we cannot conclude that
the district court abused its discretion in deciding not to recruit a second lawyer for
him. Id. at 658–69.
AFFIRMED | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3995418/ | This is an appeal from an order of the superior court of Pierce county settling the account of a guardian.
It appears from the record that the appellant, Sento Gardella, and one Ethel Gardella were formerly husband and wife, and that the wards of the estate in which the account was filed are their daughters. The husband and wife were formally divorced in the year 1920, in an action brought by the wife for that purpose, and in which the property of the spouses was divided. Ethel Gardella died on March 22, 1923, leaving an estate consisting of both personal and real property, and on March 27, 1923, Sento Gardella was appointed administrator of her estate. At the same time, he was appointed guardian of the persons and estates of the daughters mentioned, with one Fred Weber and one Gotfried Ritter as his bondsmen. The estate was settled on December 24, 1924, and a decree of distribution entered in which property of the value of $6,433.75 was awarded to the daughters. The property was then in the possession of Gardella as administrator, and he thereafter continued in its possession as guardian.
Some years later, the bondsmen petitioned the court in which the guardianship was pending to withdraw as bondsmen of the guardian and be relieved from any further obligation thereunder. A citation was issued to the guardian, and he filed a partial account, in which it appeared that he then had on hand personal *Page 252
property belonging to his wards of the appraised value of $1,950. The court thereupon approved the account, reduced the amount of the bond required of the guardian from $9,000 to $2,000, and entered an order allowing the bondsmen to withdraw on the substitution of a new bond in the latter sum. Thereafter a bond was furnished by the guardian with other sureties, and an order was entered purporting to exonerate the original bondsmen from any liability on their undertaking. No notice of these proceedings was served upon the wards, nor was any one appointed to represent them in the proceedings.
Nothing further was done in the guardianship proceedings until in July, 1927, when Claudine Gardella, one of the wards, became of legal age. She endeavored at that time to have the guardian turn over to her such of the property of the estate as belonged to her. Failing to obtain relief in this manner, she applied to the court, through counsel, for an order requiring him to account for the property, which order the court granted. The guardian thereupon filed an account with the estate, in which he purported to account for the property he reported on hand at the time of his accounting when his original bondsmen were permitted to withdraw. Exceptions were taken to the account, on the ground that it was incomplete, whereupon the court ordered him to account from the inception of the guardianship proceedings. In the account filed in compliance with this order, the guardian charged himself, if we understand the statement, with total receipts of the value of $6,483.75, and credited himself with having expended on behalf of the ward Claudine, $1,683.02, and on behalf of the other ward Lucille, $1,144.74, leaving remaining in his hands the real property of the value of $2,500, and household furniture and an automobile of a total value of $500, and that *Page 253
there were against these items outstanding obligations in the sum of $570.08.
Exceptions were taken to this account, and a somewhat extended hearing was had thereon, at the conclusion of which the court found that the guardian had misappropriated of the funds of Claudine Gardella the sum of $1,461.28, and of the funds of Lucille Gardella the sum of $1,974.68, and found that he had possession of the real property, the household furniture and the automobile. The court further found that the guardian had so grossly mismanaged the estate of the wards as to require his removal as guardian of Lucille Gardella, and entered an order to that effect, and appointed another in his stead. It also entered a judgment against the guardian in favor of the wards for the sums it found due them respectively, and directed that he turn over to them the property of which he then had possession belonging to them. While no judgment was entered against the bondsmen of the guardian, it was
". . . ordered that neither of the official bonds of said guardian be exonerated nor his bondsmen discharged until such judgments be paid or otherwise discharged according to law."
The guardian alone appeals.
[1] Noticing the assignments of error in a somewhat different order than they are presented in the briefs, the first is that the court erred in refusing to recognize the orders entered in the first accounting as obligatory on the wards. But, as we have noted, the wards were not represented in that proceeding by any one other than the guardian himself, and he, in making his account, was acting in an adversary capacity in so far as their interests were concerned. The proceeding was, in its substance and effect, ex parte as to the wards, and no order entered therein adverse to them *Page 254
was obligatory upon them. In re Sullivan's Estate, 36 Wn. 217,78 P. 945; In re Sroufe's Estates, 74 Wn. 639,134 P. 471; Colkett v. Hammond, 101 Wn. 416, 172 P. 548. The court, therefore, did not err in refusing to recognize the orders as binding upon the wards.
[2] The second objection questions the rulings of the court in refusing to recognize as legitimate many of the items the guardian had charged against the wards. These we shall not notice in detail. It seems that, upon his appointment as administrator of the estate of the mother of the wards, he moved into the house upon the real property, and treated the entire property as his own until he was called upon to account at the time the administration was closed. He hired a housekeeper, and charged the entire expense of maintaining the household to the estate. After the close of the administration proceedings, he continued as before, the only change being that expense of maintaining the household was charged against the wards. It is argued in the briefs of the appellant that, because his charges were not questioned when he filed his final account in the administration proceedings, "it was in effect a statement from the court, `you may go ahead, these charges are legal.'" But we think the conclusion hardly follows. We are afraid that the wards' interests were not properly represented at the time the estate was closed, and that this is the real cause of the court's approval of the proceedings. But whatever may be the true reason, it would be too much to say that misappropriation of the funds of the estate furnished a justification for a like misappropriation of the funds of the wards. In making up the account, the court allowed the guardian credit for every item that was shown to have been expended for their individual benefit; such as the cost of their wearing apparel, *Page 255
education and the like, and seemingly much that appertained to the cost of maintaining the household. Nor was any charge made against the guardian for the use of the wards' property, which was found to be reasonably worth $35 per month. On the whole, we think the court was liberal rather than otherwise in the allowance of expenditures.
[3] Complaint is made in this connection because the court refused to allow compensation to the guardian for himself and his attorney. But we find no error in his order in this respect. The guardian, as we have indicated, conducted the guardianship proceedings without any apparent appreciation that the property in his charge was the property of his wards. He filed no inventory of the property; he obtained no orders from the court authorizing the expenditures made by him; kept no tabulated accounts of the expenditures, and required no formal vouchers for them. While numerous receipts for bills paid were filed with his account, there is nothing on the face of many of them that would even indicate that they in any way related to the guardianship proceedings. Under these circumstances we are clear there was no error in denying him compensation for his services.
[4] Objection is made to the judgments entered against the guardian in favor of the individual wards, the ground of the objection being that the court is without jurisdiction in this form of proceeding to enter such a judgment. But the judgments were clearly within the powers of the court. We have, in this state, no probate court, as courts of that character were known prior to the adoption of the state constitution. By that instrument, probate courts were superseded and jurisdiction "in all matters of probate" was vested in the superior courts. In dealing in matters of probate, therefore, the superior court does not require the *Page 256
aid of any other court or the aid of any other form of procedure to fully adjudicate the matters before it. In such instances, it exercises all of its powers as a court of general and superior jurisdiction, and when the justice of the matter requires it to do so, it may enter in the proceeding itself such orders and judgments as the necessity of the matter requires. Our holdings have been uniform to this effect. In re Sall, 59 Wn. 539,110 P. 32, 626, 140 Am. St. 885; In re Williamson, 75 Wn. 353,134 P. 1066; State ex rel. Keasal v. Superior Court, 76 Wn. 291,136 P. 147; Coleman v. Crawford, 140 Wn. 117,248 P. 386.
[5] It is complained that the order of the court with respect to the sureties was error. Whether the appellant can raise this question, may be doubted, since the order in no way affects him, and he is the sole appellant. But, passing this, the rights of the sureties are not affected by the order, further than it may be conclusive upon them as to the amount of the guardian's defalcation. But even this we do not determine. The bondsmen will have the opportunity to assert their rights in this respect when it is sought to hold them to their liability on the bond.
[6] Finally, it is objected that the order of the court with respect to turning over the property to the wards is in such form that it cannot be literally complied with. But we do not anticipate he will have difficulty on this score. If he does meet with such a difficulty, the trial court will aid him in any good faith effort he makes in that direction. It is not a matter requiring modification by this court.
The orders and judgments of the trial court are affirmed.
MITCHELL, C.J., TOLMAN, HOLCOMB, and BEALS, JJ., concur. *Page 257 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1975955/ | 153 Ill. App. 3d 408 (1987)
505 N.E.2d 773
DAVID M. NOVAK, Indiv. and as Adm'r of the Estate of Beverly Ann Novak, Deceased, Plaintiff-Appellant,
v.
A. RATHNAM et al., Defendants-Appellees (Robert Lee Endicott, Defendant).
No. 3-86-0237.
Illinois Appellate Court Third District.
Opinion filed March 20, 1987.
*409 Leslie J. Rosen, of Leonard M. Ring & Associates, of Chicago (Leonard M. Ring, of counsel), for appellant.
Neil F. Hartigan, Attorney General, of Springfield (Robert E. Wagner, Assistant Attorney General, of counsel), for appellees.
Judgment affirmed.
JUSTICE STOUDER delivered the opinion of the court:
In this wrongful-death action, plaintiff, David M. Novak, appeals from the judgment of the circuit court of Peoria County in favor of the defendants, Dr. A. Rathnam and David Girmscheid. Novak, individually and as special administrator of the estate of Beverly Ann Novak, filed a four-count complaint alleging that the defendants' negligent or wilful and wanton misconduct was the proximate cause of the decedent's death. The trial court originally dismissed counts I, III, and IV of the complaint which named Rathnam and Girmscheid and left standing count II against Robert Lee Endicott, the defendant who shot and killed the decedent.
Because this case was decided on the sufficiency of the complaint, the following facts are those alleged in the complaint. On July 8, *410 1976, Endicott was admitted as an in-patient to the Zeller Mental Health Center (Zeller) in Peoria. On July 21, he was found to be a person subject to involuntary admission pursuant to the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1985, ch. 91 1/2, par. 1-101 et seq.) Endicott was treated with antipsychotic medication during the period of his hospitalization and was prescribed additional medication upon his release. Girmscheid was responsible for Endicott's care and treatment during this time. Endicott was discharged on August 13, 1976, and was diagnosed as suffering from acute schizophrenic episodes.
Endicott was again involuntarily admitted to Zeller on February 2, 1978. He was placed under the care of Rathnam and Girmscheid, who had learned that Endicott had refused to maintain the antipsychotic medications prescribed upon his release in 1976. They also learned that Endicott had become hostile and threatening after his release. During this second term of hospitalization, Endicott refused to participate in group therapy and formal activities and had refused to take the medications prescribed.
Rathnam and Girmscheid allegedly diagnosed Endicott as a paranoid schizophrenic but failed to treat him for that condition. The complaint alleged that despite their knowledge of Endicott's behavior and violent tendencies, Rathnam and Girmscheid recommended his release. The complaint further alleged in count IV, based on a claim of wilful and wanton misconduct, that neither defendant reported his observations to their superiors and that they falsely reported that Endicott had been treated.
Endicott was released on March 24, 1978, and allegedly failed to maintain his prescribed medication. On May 4, 1979, while in Fort Lauderdale, Florida, and during the course of an attempted armed robbery, Endicott shot and severely injured Beverly Ann Novak, who later died of those injuries.
On appeal, Novak contends that Rathnam and Girmscheid had a duty to treat and confine Endicott, knowing that he possessed violent tendencies and that he posed a great danger to the public. He further contends that Rathnam and Girmscheid are not immune from suit as State employees by virtue of their employment with Zeller.
1, 2 In reviewing the sufficiency of a complaint in the context of a motion to dismiss, all well-pleaded facts and all reasonable inferences therefrom must be regarded as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372.) A cause of action should not be dismissed unless it is clear that no set of facts could be proved which would entitle plaintiff to recover. Willard v. Northwest *411 National Bank (1985), 137 Ill. App. 3d 255, 484 N.E.2d 823.
We must first consider whether Novak has alleged facts giving rise to a duty on the part of Rathnam and Girmscheid toward the decedent. The gist of this action is not based on professional malpractice, which would involve a duty extending to the psychotherapist's patient. Rather, this case deals with the negligence of the professional in releasing a patient in violation of a duty owed to the public at large. There are no Illinois cases directly confronting the question of a professional's liability for the negligent release of his patient. It must be remembered, however, that the decision to release an involuntarily admitted patient does not usually rest with a single individual, although the decision rests substantially on the opinion of the professional staff.
3 There is a great deal of reliance by both parties on the case of Tarasoff v. Regents of the University of California (1976), 17 Cal. 3d 425, 551 P.2d 334, and the cases either defining or expanding on its application. We note that Tarasoff dealt with the duty to warn a readily identifiable victim that the therapist's patient had threatened her. The patient eventually made good on his threat and the therapist was held liable for the failure to warn the victim. As has been done in the cases that have followed and limited Tarasoff (although we believe that Illinois would adopt Tarasoff's affirmative duty on therapists to warn foreseeable third parties), we do not believe that the duty would extend to victims who are not readily identifiable. See, e.g., Thompson v. County of Alameda (1980), 27 Cal. 3d 741, 614 P.2d 728.
There have been courts, Illinois included, that have modified or expanded on the holding in Tarasoff in the area of psychotherapist or hospital liability. (See generally Annot., 38 A.L.R. 3d 699 (1971).) In Johnson v. Village of Libertyville (1986), 146 Ill. App. 3d 834, 496 N.E.2d 1219, the court held that hospitals have a duty to control patients who the hospital knows should be involuntarily committed. However, Johnson seems to be based more on a negligent-escape theory, since the emphasis in the case is more on control than commitment. The complaint, in that case, stated only that the patient was in the hospital "shortly before the occurrence" and, as the dissenting opinion pointed out, the complaint was insufficient to allow the inference that the hospital "knew or should have known of [the patient's] mental disorders, drug addiction, and propensity toward violence." 146 Ill. App. 3d 834, 496 N.E.2d 1219, 1225.
Two other cases recognized a duty on the part of the psychotherapist or hospital which, if breached, would impose liability for the negligent release or the failure to commit an individual who the psychotherapist *412 either knows or should have known would pose a threat to the general public. In Currie v. United States (M.D.N.C. 1986), 644 F. Supp. 1074, the court recognized a cause of action for failure to commit a patient who had made threats of violence. The distinguishing factor in this case centered on the fact that the nature of the breach would be substantially different than that used in an ordinary negligence case. The court adopted a "psychotherapist judgment rule" which would examine the "good faith, independence, and thoroughness" of the psychotherapist's decision not to commit. This rule operates in much the same way that courts utilize the judicially created "business judgment rule" in deferring to the decision of disinterested directors of a business absent bad faith or self-interest. While recognizing the duty existed, the court dismissed the complaint, pointing to the facts of the case and noting that the psychotherapist's good faith was beyond dispute.
In Pangburn v. Saad (1985), 73 N.C. App. 336, 326 S.E.2d 365, the court found that the plaintiff had stated a valid cause of action for wrongful release of a mental patient where, less than 16 hours after his release, plaintiff's brother stabbed the plaintiff some 20 times and inflicted the disfiguring and life-threatening wounds. The court also determined that State-employed psychiatrists were only entitled to a qualified immunity and that the allegations of the complaint sufficiently demonstrated the psychiatrist's grossly negligent acts. The case was then remanded for trial.
The determination that a similar duty exists in this case would be essential in holding that Novak's complaint would withstand Rathnam and Girmscheid's motion to dismiss. And, once a duty is established, we must then examine the complaint to determine if it is sufficient to establish the breach of that duty.
4, 5 However, even if the complaint sufficiently alleges a duty owed and the breach of that duty, our analysis is not complete. We must next consider whether, based on the facts pleaded in the first amended complaint and the reasonable inferences therefrom, the trier of fact could conclude that Rathnam and Girmscheid's negligence in permitting Endicott's release was the proximate cause of the decedent's death. In order to recover for negligence or wilful and wanton misconduct, the plaintiff must show that his injury was proximately caused by the defendant's breach of the duty of care. (See Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96; Breck v. Cortez (1986), 141 Ill. App. 3d 351, 490 N.E.2d 88.) Whether an act or omission is the proximate cause of an injury is generally a question for the trier of fact unless the answer is so clear that reasonable minds would *413 agree on it unanimously. Reed v. Danville Concrete Products Co. (1981), 102 Ill. App. 3d 205, 429 N.E.2d 605.
6 In this case, we find no causal connection between the release of Endicott and the death of the decedent one year and two months later. At most, Rathnam and Girmscheid's conduct merely furnished a condition which made Endicott's travel to Florida possible. It was Endicott's conduct during the course of an attempted armed robbery which was the efficient and proximate cause of the decedent's death. The events were just too far removed in time to establish the requisite causal connection.
In view of our determination to affirm the decision of the trial court, it is unnecessary to discuss the final issue raised on appeal, which is whether the psychotherapist-defendants were immune from liability under a theory of sovereign immunity.
For the foregoing reasons, the judgment of the circuit court of Peoria County dismissing counts I, III, and IV of plaintiff's complaint for failure to state a cause of action is affirmed.
Affirmed.
SCOTT, P.J., and WOMBACHER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1714778/ | 104 So. 2d 391 (1958)
R.C. HARRISON, Appellant,
v.
STATE of Florida, Appellee.
No. A-279.
District Court of Appeal of Florida. First District.
July 17, 1958.
*392 R.C. Harrison, in pro. per.
Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
WIGGINTON, Judge.
Appellant was charged in the Circuit Court of Jackson County with the crime of grand larceny, for which crime he was convicted, adjudged guilty and sentenced to imprisonment in the state prison for a term of five years. This appeal assigns as error the insufficiency of the evidence to support the verdict and judgment.
The evidence adduced by the State was entirely circumstantial. The defendant offered no evidence and elected not to testify in his own behalf.
The evidence shows that defendant was employed by his uncle, E.D. Harrison, as a farm hand for some six months prior to the alleged larceny and was paid for his services at the rate of $3 per day plus certain meals. On January 22, 1957, defendant, together with members of his immediate family, and the uncle and his wife drove to Marianna. At that time the uncle had in his possession cash in excess of $1,300, from which he purchased an automobile license tag and a pair of shoes for his wife, and made a loan of $5 to defendant's mother, purportedly for defendant's benefit. Around noon the entire party returned to their respective homes in the northern part of the county near the community of Malone. The distance between their homes and Malone does not appear from the evidence. Defendant and his family debarked from the uncle's car at the cross-roads and the uncle, accompanied by his wife, proceeded to his home, where they remained for the rest of the day and night. Defendant was not seen again by the uncle until shortly before the trial of this case.
The uncle testified that around 8:00 p.m., after returning home from Marianna on the day in question, he took his money from his "Sunday pants" and placed it in the pocket of a "brand new pair of overalls." At that time he had three or four fives, four or five ones, and one ten dollar bill; the remaining $1,300, he was positive, was in twenty dollar bills. After "snapping" the pocket containing the money, the uncle placed the overalls on the table between the beds on which he and his wife slept. The couple retired around 10:00 p.m. that night and slept until around 11:00 p.m. when they were awakened by rain or some unidentified noise. The uncle left his bed and went outside the house, but seeing nothing unusual returned to the bedroom where he discovered his overalls on the floor under the bed and the table moved. Neither of the couple was sufficiently alarmed at the time to check on the money that had been placed in the overalls pocket. The next morning the pocket was examined and the money was discovered missing. The uncle was permitted to express his positive opinion at the trial that defendant was guilty of the theft of his money. This opinion, which was later admitted to be *393 only a strong suspicion, was apparently based in part upon the fact that the uncle owned a bulldog that would not allow strangers on the premises; that defendant was friendly with the dog; and that the defendant failed to report for work on the morning following the theft. Further, according to defendant's uncle, defendant had been present on numerous occasions when the "hands" were being paid and was the only person who knew he kept large sums of money. But, defendant had not seen his uncle's money while they were together on the day of the theft. The record is silent as to whether the uncle's bulldog was at home on the night in question or whether he had other friends. Likewise, just how the defendant came to be the only person who knew of the uncle's wealth when large sums were apparently displayed to the other "hands" is not made clear.
The State produced one Hatcher who testified that he saw the defendant around midnight on the date of the alleged theft when he came to the witness' home, the location of which is not disclosed, seeking a ride to Marianna or Malone; that enroute to Malone he stopped at defendant's home where he heard the defendant tell his mother "that was a hundred dollar bill I gave you;" that the two then proceeded to the "oil mill" at Malone where defendant gave the witness a dollar bill in payment for his transportation, which was the only money he saw in defendant's possession; and that he, the witness, then returned to his home.
One Baxter testified that he met the defendant at the "peanut mill" in Malone on the night of the theft and agreed to transport him to Marianna for $5. According to this witness, defendant stated he was going to Dallas, Texas, to visit his wife who was allegedly hospitalized there. Further, while enroute to Marianna, defendant offered to purchase the witness' car for $500 and "slipped" the witness five one hundred dollar bills. The deal was called off when the witness said defendant would have to drive him back to the mill before the sale would be consummated. Upon arriving in Marianna the witness drove defendant to a cab company owned by one Callaway and left him there at about 1:00 a.m. Defendant paid the witness with a twenty dollar bill and received $15 in change.
Callaway testified that he was called to the office of his company at around 1:00 a.m. on the morning after the alleged theft and there met the defendant, who stated he wanted to hire a cab to drive him to Lakeland, Florida, for the alleged purpose of accepting employment with a construction company in that area. The witness agreed to furnish a cab for defendant's trip for $80, whereupon defendant produced a "roll of money" and paid the agreed price with a one hundred dollar bill. One Dozier, the cab driver who transported defendant to South Florida, testified that he saw the defendant with a "roll of bills," but did not know the amount or denomination. He also testified that the defendant appeared as any one else in a hurry to get somewhere, but that his conduct was not otherwise unusual.
Defendant's motion for directed verdict was denied and the cause was submitted to the jury on the State's evidence alone, the defendant having elected not to offer any evidence.
From the foregoing facts it clearly appears that the only circumstances from which guilt could be reasonably inferred were the defendant's unexplained acquisition of a large sum of money and his sudden departure from home on the night the crime was alleged to have been committed.
Where the larceny of money is at issue, evidence tending to show the accused had no money before the larceny and considerable money thereafter is admissible, since a sudden and unexplained possession of means about the time a larceny is committed has the tendency to *394 connect the defendant with the crime where there are other circumstances to support it. One such supporting circumstance has been held to be the fact that money in the possession of the accused corresponds in description to that which was stolen.[1] It is well settled that exclusive possession of the whole or some part of stolen property by a defendant recently after a theft, is sufficient when standing alone, to cast upon the accused the burden of explaining how he came by it, or of offering some explanation, and, if he fails to do so, to warrant the jury in convicting him of larceny.[2]
In the instant case the State's own evidence conclusively showed that the stolen money consisted of $1,300 in twenty dollar bills, together with a few ones and fives, and one ten dollar bill. The money seen in defendant's possession consisted almost exclusively of one hundred dollar bills. Furthermore there is no positive evidence that the defendant here in fact had no money prior to the larceny charge but merely the inference that such was the case. Considering that the theft here charged necessarily occurred in the middle of the night, and in a rural community, we do not consider that the jury could with justification infer that the defendant, in a matter of not more than some ninety minutes, converted some if not all of the $1,300 in stolen twenty dollar bills into one hundred dollar bills. Such an inference would necessarily assume the defendant anticipated capture and therefore sought to alter the identity of the stolen money, either through some innocent party or through a prearranged accomplice. While there may be instances in which an assumption of this nature would be warranted, we cannot concede that it is proper or reasonable when, as here, there is a complete absence of any supporting evidence. Although questions of fact and the inference to be drawn therefrom are for the jury, it cannot be permitted to pyramid assumption upon assumption and intent upon intent in order to reach a conclusion predicated upon circumstance.[3]
Thus, we are left with defendant's act of leaving under the circumstances heretofore described. The flight of a person accused of a crime raises no presumption of guilt, but is a circumstance that goes to the jury to be considered by it with all other testimony and circumstances and given such weight as the jury may determine it entitled to. The rule is that when a suspected person in any manner endeavors to escape or evade a threatened prosecution, by flight, concealment, resistance to a lawful arrest or other ex post facto indication of a desire to evade prosecution, such fact may be shown in evidence as one of a series of circumstances from which guilt may be inferred.[4] At the time the defendant in this case left his home he was neither suspected nor accused of having committed the crime in question. Defendant's leaving at a time which could have been after the crime, although at an unusual hour, is, when standing alone, no more consistent with guilt than with innocence. For aught that appears in the record defendant's conduct could as readily have constituted a mere coincidence.
When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense.[5] If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent as to *395 which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be. It is the actual exclusion of each other reasonable hypothesis which clothes mere circumstances with the force of proof.[6] Circumstantial evidence which leaves nothing more than a suspicion that the accused committed a crime is not sufficient to sustain a conviction.
We are fully aware of the burden which our system of jurisprudence places upon those charged with enforcement of the law. In the absence of positive evidence resort must be frequently made to circumstances. When evidence of this kind is relied upon for conviction, it should be acted upon with extreme caution. Our responsibility in such cases human liberty being involved is doubly great.[7] The cloak of liberty and freedom is far too precious a garment to be trampled in the dust of mere inference compounded. As was stated in Adams v. State,[8] this court is fully cognizant of the rule that conviction may be had upon circumstantial evidence alone, and although the State's burden does not extend to an absolute metaphysical and demonstrative certainty in proving a crime by circumstantial evidence, it must be sufficient as to every essential element of the crime charged to meet the requirement of the rule as set forth above. When measured in a light most favorable to the State, the evidence adduced in this case is not sufficient to close the gap to the reasonable hypotheses of innocence; and is therefore insufficient to sustain conviction.
From our view of the record we are convinced that the interests of justice would best be served by the granting of a new trial. Accordingly, the judgment appealed from is reversed and the cause hereby remanded for a new trial.
CARROLL, DONALD K., J., concurring.
STURGIS, C.J., dissenting.
STURGIS, Chief Judge (dissenting).
I dissent because I am persuaded that the state maintained its initial burden of making out a prima facie case for conviction, which the defendant elected not to rebut.
Man's senses are nothing more than equipment that registers experience and enables him to draw inferences. The only thing of which he is positive is that he lives, and the judges among us can be no more certain of that fact than are the jurors. Under our system of criminal jurisprudence, however, it is the jurors who are empowered to measure the relative strength of testimony that admits of several inferences and to accept that inference which they believe to be correct. On that predicate, I respectfully submit that it is judicial speculation and an unwarranted invasion of the jury's prerogative to hold that the jury in this case could not "with justification infer that the defendant, in a matter of not more than some ninety minutes, converted some if not all of the $1300 in stolen twenty dollar bills into one hundred dollar bills."
Moreover, I do not believe that in order to convict it was necessary for the state to establish that the bills of $100 denomination traced into the hands of the defendant were the converted form of some of the stolen money, which consisted primarily of $20 bills. Such was only one of many facts and circumstances which in the aggregate required an explanation that the defendant elected not to give. In my opinion the evidence concerning $100 bills might have been entirely eliminated without relieving the defendant of the burden of *396 overcoming what I consider to be a prima facie case of guilt as made out by the state. Assuming the contrary, I suggest that the record shows ample opportunity within the mentioned ninety minute period for the defendant to make conversion of the stolen money into bills of larger denomination. That opportunity existed between the time of the theft and the time defendant awakened the witness Hatcher and hired him as the first of three persons hired to transport the defendant by automobile on a voyage that originally had Texas as its destination, was later changed to Lakeland, Florida, and eventually wound up at Lake Worth, Florida. A very full opportunity also existed when defendant stopped by his home, where he saw his mother and had an unusual transaction with her regarding a supposed $100 bill.
Among the facts before the jury which the defendant elected not to explain are these: His sudden flight in the middle of the night of the theft without announcing to his employer his intention to depart or whence he was going; the contradictory statements made by him on that night to the several witnesses as to the reason for his nocturnal venturing and the need for their services in transporting him; the spending by one in his circumstances of approximately $100 for taxi fares that night and winding up in Lake Worth, Florida, instead of his originally announced destination of Texas; his definite offer to purchase one of the automobiles hired by him that night for a part of his unusual trip, and his quick withdrawal of the offer when it was accepted on condition that he take the owner back to the owner's home, a retracing in the direction of the crime. These actions, coupled with the facts stated in the main opinion, appear to me to be consistent with guilt and so inconsistent with innocence that the jury was warranted, absent any explanation on the part of defendant, to find a verdict of guilty.
In so concluding I am not unmindful of and I highly respect the constitutional right of the citizen not to be compelled to bear witness against himself, and his concomitant privilege to refrain from testifying in his own defense. This privilege should have no greater dignity than the duty of the citizen to organized society. It should not shackle society's ability to convict one who fails to abide by its laws. When the accused elects to exercise the privilege of remaining silent in the face of competent evidence that loudly cries for the refutation or explanation that his voice alone can give, he takes the calculated risk of having the jury finally construe to his disadvantage every inference supportable by the evidence before it. As pertinently observed by Anderson, Associate Justice, dissenting in Trafficante v. State, Fla., 92 So. 2d 811, 816:
"To my mind there is no more damning evidence of guilt than the failure of a defendant, in a criminal case, to take the stand, face his accusers, the judge, the jury, and the prosecuting attorney and say, `I am not guilty.'"
Upon an appeal from a conviction under such circumstances I would reverse only if the evidence allows no inference upon which guilt could be predicated.
The facts here are clearly distinguishable from those in Adams v. State, Fla., 102 So. 2d 47, in which we reversed the lower court because of the insufficiency of circumstantial evidence. In that case the defendant lived about 100 miles from the scene of the theft, he had no connection with the owner of the stolen property, he made no sudden departure from his place of residence at the approximate time of the crime, and he did not at that time engage in an unusual and unexplained course of action upon which the jury could reasonably draw the inference that he was fleeing from the crime charged, as did the defendant in the case now on review.
For the reasons stated, I would have affirmed the conviction.
NOTES
[1] Thompson v. State, 58 Fla. 106, 50 So. 507.
[2] Tilly v. State, 21 Fla. 242.
[3] Gustine v. State, 86 Fla. 24, 97 So. 207.
[4] Blackwell v. State, 79 Fla. 709, 86 So. 224, 15 A.L.R. 465.
[5] Parish v. State, 98 Fla. 877, 124 So. 444.
[6] Mayo v. State, Fla. 1954, 71 So. 2d 899.
[7] Head v. State, Fla. 1952, 62 So. 2d 41.
[8] Fla., 102 So. 2d 47. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/93265/ | 143 U.S. 215 (1892)
LAWRENCE
v.
NELSON.
No. 1067.
Supreme Court of United States.
Submitted November 24, 1891.
Decided February 29, 1892.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
*220 Mr. Henry A. Gardner and Mr. Willian McFadon for appellant
Mr. Henry S. Robbins for appellees.
*221 MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.
The claim of each appellee being for less than $5000, the jurisdiction of this court is limited to the questions of law presented by the certificate of division of opinion between the judges of the Circuit Court. Chicago Union Bank v. Kansas City Bank, 136 U.S. 223.
The defendant was appointed administrator of David Ballentine's estate in Illinois only. As such administrator, he *222 appeared in and defended the suit brought by these plaintiffs in the Circuit Court of the United States in Arkansas. By the final decree in that suit it was adjudged that he, "as administrator of David Ballentine, deceased," was indebted to the plaintiffs in certain sums, and that he pay those sums to them "out of the assets of the estate of said David Ballentine in his hands remaining to be administered." In that suit he filed a petition for a rehearing, which was overruled.
The manifest intent and purport of that decree was to charge him, as administrator appointed in Illinois, with the payment of the plaintiffs' claims out of the assets in his hands as such administrator. If this case were before us on appeal from that decree, it might be doubtful, to say the least, whether the decree should be affirmed in view of the general rule that an administrator's power to act, as well as his duty to account, is limited to the State from whose courts he derives his authority, and that therefore he cannot sue or be sued in another State in which he has not been appointed administrator. Vaughan v. Northup, 15 Pet. 1; Aspden v. Nixon, 4 How. 467; Stacy v. Thrasher, 6 How. 44; Johnson v. Powers, 139 U.S. 156; Reynolds v. Stockton, 140 U.S. 254, 272; Judy v. Kelly, 11 Illinois, 211; McGarvey v. Darnall, 134 Illinois, 367.
But the case does not rest there. The statutes of Arkansas provide that "administrators and executors appointed in any of the States, Territories or districts of the United States, under the laws thereof, may sue in any of the courts of this State, in their representative capacity, to the same and like effect as if such administrators and executors had been qualified under the laws of this State." Arkansas Digest, 1874, § 4473. In accordance with that statute, the defendant, within a year after the overruling of his petition for a rehearing, filed a bill of review, alleging that these plaintiffs were about to proceed against him for the recovery of those sums in the State of Illinois, and praying for a review and reversal of that decree for several reasons, one of which was that he, "being an administrator appointed not by the courts of Arkansas, but by the courts of Illinois, could not be sued in *223 Arkansas;" and that bill, upon a hearing, was dismissed for want of equity.
The decree dismissing the bill of review for want of equity was a conclusive adjudication upon the merits. The point that the plaintiff in review, being an administrator appointed in Illinois only, could not be used in Arkansas, was apparent upon the face of the record of the decree sought to be reviewed, was stated in the bill of review, was necessarily involved in the decree dismissing that bill, and was thereby conclusively adjudged against the plaintiff in review, the original defendant. In filing the bill to have the former decree set aside upon the ground that it should not have been rendered against him as an Illinois administrator, he became himself the actor, and submitted that question to a court of competent jurisdiction, and its decision upon that question, whether favorable or adverse to him, was equally conclusive of the matter adjudged. Lyon v. Perin & Gaff Co., 125 U.S. 698; Whiting v. Bank of United States, 13 Pet. 6; Biddle v. Wilkins, 1 Pet. 686; Jewsbury v. Mummery, L.R. 8 C.P. 56.
Whatever doubt may have existed as to the validity of the former decree, as binding the assets of the deceased in the hands of the administrator, before the decree upon the bill of review, is removed by the latter decree; and, by the effect of this decree, the former decree must be treated, for the purposes of this case, as a judgment rendered by a Federal court of competent jurisdiction, and binding the assets of his intestate in his hands, just as if it had been rendered in a Federal court held in the State of Illinois.
This being so, the plaintiffs' claim was not barred by the omission to file it within two years in the county court of Lake County, according to the statutes of Illinois, or by the settlement of the estate and the discharge of the administrator in that court. Illinois Rev. Stat. 1874, c. 3, §§ 60, 70, 111. Such would seem to be the result of the decisions in Illinois. Darling v. McDonald, 101 Illinois, 370; Diversey v. Johnson, 93 Illinois, 547. But, however that may be, the general equity jurisdiction of the Circuit Court of the United States to administer, as between citizens of different States, the *224 assets of a deceased person within its jurisdiction cannot be defeated or impaired by laws of a State undertaking to give exclusive jurisdiction to its own courts. Green v. Creighton, 23 How. 90; Payne v. Hook, 7 Wall. 425. In Morgan v. Hamlet, 113 U.S. 449, cited by the appellant, the state statute in question was a mere statute of limitations, clearly applicable to suits in the Circuit Court of the United States, held within the State. Michigan Insurance Bank v. Eldred, 130 U.S. 693, 696.
The eighth question certified must therefore be answered in the affirmative, and this renders it unnecessary to give a definite answer to any of the other questions.
Decree affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4523763/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00786-CV
IN THE INTEREST OF P.M.M.K., a Child
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-PA-00915
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: April 8, 2020
AFFIRMED
Appellant (“Mother”) appeals the trial court’s order terminating her parental rights to her
daughter P.M.M.K. Mother challenges the legal and factual sufficiency of the evidence to support
the trial court’s findings on the statutory grounds for termination. See TEX. FAM. CODE ANN.
§ 161.001(b)(1). We affirm.
BACKGROUND
On May 1, 2018, the Texas Department of Family and Protective Services (the
“Department”) filed a petition for conservatorship of P.M.M.K. At the time, P.M.M.K. was
eleven. The Department amended its petition, on June 20, 2019, to seek termination of Mother’s
parental rights. On October 25, 2019, following a bench trial, the trial court ordered the
04-19-00786-CV
termination of Mother’s parental rights to P.M.M.K., pursuant to section 161.001 of the Texas
Family Code. Mother appeals.
STANDARD OF REVIEW
Parental rights may be terminated, pursuant to section 161.001, only if the trial court finds
by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1)
and that termination is in a child’s best interest. TEX. FAM. CODE ANN. § 161.001(b)(1), (2). Clear
and convincing evidence requires “proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Id. § 101.007. We
review the legal and factual sufficiency of the evidence under the standards of review established
by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266–67 (Tex. 2002). Under these
standards, “[t]he trial court is the sole judge of the weight and credibility of the evidence, including
the testimony of the Department’s witnesses.” In re F.M., No. 04-16-00516-CV, 2017 WL
393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017, no pet.) (mem. op.) (first citing In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); then citing City of Keller v. Wilson, 168
S.W.3d 802, 819 (Tex. 2005)).
PREDICATE STATUTORY GROUND
The trial court determined there was clear and convincing evidence that termination was in
P.M.M.K.’s best interest and that Mother (1) had engaged in conduct or knowingly placed
P.M.M.K. with persons who engaged in conduct which endangered her physical or emotional well-
being, see TEX. FAM. CODE ANN. § 161.001(b)(1)(E); (2) constructively abandoned P.M.M.K., see
id. § 161.001(b)(1)(N); and (3) used a controlled substance in a manner that endangered the health
or safety of P.M.M.K. and either failed to complete a court-ordered substance abuse treatment
program or, after completion of a program, continued to abuse a controlled substance, see id.
§ 161.001(b)(P). Mother does not challenge the trial court’s best interest finding but challenges
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04-19-00786-CV
whether legally and factually sufficient evidence supports the trial court’s findings as to the
predicate statutory grounds for termination under subsections (E), (N), and (P) of section
161.001(b)(1). Because termination pursuant to subsection (E) may have implications for a
parent’s parental rights to other children, we must address issues raised on appeal challenging the
trial court’s findings as to that subsection. In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019) (per
curiam).
Subsection (E) allows termination of parental rights if the trial court finds by clear and
convincing evidence that the parent “engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional well-being of the
child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Under subsection (E), the trial court must
determine “whether there is evidence that a parent’s acts, omissions, or failures to act endangered
the child’s physical or emotional well-being.” In re C.J.G., No. 04-19-00237-CV, 2019 WL
5580253, at *2 (Tex. App.—San Antonio Oct. 30, 2019, no pet.). “‘[E]ndanger’ means “to expose
a child to loss or injury, or to jeopardize a child’s emotional or mental health.” Id. at *3 (citing In
re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam)). “An endangerment finding often
involves physical endangerment, but the statute does not require that the parent’s conduct be
directed at the child or that the child suffer actual injury.” In re K.J.G., No. 04-19-00102-CV,
2019 WL 3937278, at *5 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.).
“Rather, the specific danger to the child’s well-being may be inferred from the parent’s misconduct
alone.” Id. (citation omitted). “Conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of a child.” Id. Our analysis under subsection
(E) may not rest on a single act or omission; it must be “a voluntary, deliberate, and conscious
course of conduct.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]
2010, pet. denied). We may consider conduct both before and after the Department removed the
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04-19-00786-CV
child from the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied).
Trial Testimony
Mother and the Department’s caseworker testified at trial. Mother testified that P.M.M.K.
is a middle child of five. According to Mother, while P.M.M.K. was in Mother’s care, she was
aggressive and violent toward authority. Mother stated that the case began after P.M.M.K.
assaulted teachers and that the Department took custody of P.M.M.K. in lieu of her receiving
juvenile probation. On May 1, 2018, the Department filed a petition for conservatorship of
P.M.M.K. but, initially, did not seek termination of Mother’s parental rights.
The caseworker testified that P.M.M.K. did well in her first placement after removal, and
the Department returned P.M.M.K. to Mother’s home for holiday visits. These visits went well.
In March 2019, P.M.M.K. was placed back with Mother. After only a few weeks, however,
P.M.M.K. ran away. According to the caseworker, P.M.M.K. was found and arrested two months
later with a “rock of ice” in her possession. 1
There is some dispute about when Mother reported that P.M.M.K. had run away. Mother
testified that she believed she reported P.M.M.K. as a runaway to police within two days after
P.M.M.K. had fled because the police would not accept a report for the first twenty-four hours
after P.M.M.K. went missing. Mother testified that she did not call the Department to report
P.M.M.K. as a runaway until two weeks after P.M.M.K. first went missing. The caseworker
testified that she did not find out about P.M.M.K.’s flight until she visited Mother’s home a “couple
1
“‘Ice’ is a street name for methamphetamine hydrochloride.” Rivera v. State, No. 2-05-056-CR, 2006 WL 743030,
at *2 n.4 (Tex. App.—Fort Worth Mar. 23, 2006, pet. ref’d) (mem. op.); see also Ex parte Lane, 303 S.W.3d 702, 715
n.7 (Tex. Crim. App. 2009) (describing “ice” as “the form of methamphetamine that is smoked”).
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04-19-00786-CV
of weeks later.” An affidavit in the record that is signed by the caseworker states that Mother
informed the Department that P.M.M.K. had run away four days after she fled.
P.M.M.K. was returned to the Department’s care after her arrest. The Department,
thereafter, amended its petition to seek termination of Mother’s parental rights. In August 2019,
Mother’s four other children were removed from her care based on allegations of Mother’s drug
use. 2 In September 2019, Mother told the caseworker that she was using methamphetamine.
Mother testified that she started using drugs when she was twelve years old. Mother testified that
she first used methamphetamine after P.M.M.K. was arrested with the drug in her possession
because “[Mother] wanted to see what [P.M.M.K.] was doing[—]what kind of drug was that.”
In September 2019, Mother was arrested for assault with a deadly weapon, and she was
incarcerated at the time of trial in October 2019. Mother acknowledged that in 2005 she had been
arrested for an assault on P.M.M.K.’s father and in 2012 she was arrested for an assault on another
individual.
Discussion
On appeal, Mother argues that the evidence adduced relating to her drug use, incarceration,
and alleged failure to timely report P.M.M.K. as a runaway cannot support an endangerment
finding under subsection (E). We disagree. Even if we discount the evidence related to the
timeliness of Mother’s runaway report, evidence as to Mother’s drug use, arrests, and incarceration
is legally and factually sufficient to support the trial court’s endangerment finding.
As to drug use, Mother argues there is no evidence that she used drugs while P.M.M.K.
was in her care or that P.M.M.K. knew of Mother’s drug use. However, absence of this evidence
is not determinative. Under subsection (E), a trial court may consider parental conduct that
2
The caseworker testified that the other children’s removal is the subject of a separate case with the Department.
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04-19-00786-CV
occurred outside of a child’s presence. See In re R.S.-T., 522 S.W.3d 92, 110 (Tex. App.—San
Antonio 2017, no pet.). Endangering conduct “does not have to be specifically directed at the
child; nor does it have to cause an actual injury to the child or even constitute a concrete threat of
injury to the child . . . [; r]ather, the statute is satisfied by showing that parental conduct simply
jeopardized the child’s physical or emotional well-being.” In re M.J.M.L., 31 S.W.3d 347, 350–
51 (Tex. App.—San Antonio 2000, pet. denied). Numerous courts of appeals have explained that
drug use and its effect on a parent’s life and ability to parent may establish an endangering course
of conduct. See In re S.S., No. 04-18-00325-CV, 2018 WL 6182852, at *5 (Tex. App.—San
Antonio Nov. 28, 2018, no pet.) (mem. op.) (citing, among others, In re J.O.A., 283 S.W.3d 336,
345 n.4 (Tex. 2009)). “Evidence that a parent continued to use illegal drugs even though the parent
knew her parental rights were at risk is conduct showing a voluntary, deliberate, and conscious
course of conduct, which by its nature endangers a child’s well-being.” In re K.J.G., 2019 WL
3937278, at *5. Drug use may support an endangerment finding “[b]ecause it exposes the child to
the possibility that the parent may be impaired or imprisoned[.]” Walker v. Tex. Dep’t of Family
& Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see
also In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109, at *2 (Tex. App.—San Antonio May
15, 2019, pet. denied) (mem. op.) (explaining that parental drug use may establish an endangering
course of conduct under subsection (E) because it is conduct that subjects a child to a life of
uncertainty and instability). Here, the undisputed evidence is that Mother first used drugs when
she was twelve years old and used methamphetamine during the course of the case because she
“wanted to see what [P.M.M.K.] was doing . . . .”
Mother makes no argument related to her history of arrests for assault but argues that her
incarceration at the time of trial cannot support an endangerment finding because such a finding
must be based on more than a single incident. “Although imprisonment, standing alone, does not
-6-
04-19-00786-CV
constitute ‘engag[ing] in conduct which endangers the emotional or physical well-being of the
child,’ it is a fact for the trial court to consider on the issue of endangerment.” In re S.F., 32
S.W.3d 318, 322 (Tex. App.—San Antonio 2000, no pet.). “The State need not show incarceration
was a result of a course of conduct endangering the child; it need only show incarceration was part
of a course of conduct endangering the child.” Id.
Here, testimony supports a conclusion that Mother’s incarceration was part of a course of
conduct endangering P.M.M.K. Mother testified that she had been arrested for assault in 2005 and
in 2012 and that she was currently incarcerated on a pending charge of assault with a deadly
weapon. See In re L.V.B.D., 04-19-00632-CV, 2020 WL 690634, at *2 (Tex. App.—San Antonio
Feb. 12, 2020, no pet. h.) (explaining that imprisonment as a result of a mother’s violent conduct,
even though not directed at her child, was a factor to be considered by the trial court on the issue
of endangerment). Mother also admitted to methamphetamine use, which exposed P.M.M.K. to
the possibility that Mother may be impaired or imprisoned. See Walker, 312 S.W.3d at 617.
On this record, we hold that the evidence is legally and factually sufficient to support the
trial court’s finding under section 161.001(b)(1)(E) of the Family Code. We do not address the
trial court’s findings under subsections (N) and (P) because only one predicate finding under
section 161.001(b)(1) is necessary to support a judgment of termination. See In re N.G., 577
S.W.3d at 237 n.1; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
CONCLUSION
Because Mother does not challenge the trial court’s best-interest finding and because we
overrule her challenge to the sufficiency of the evidence to support a finding on a predicate ground
for termination, we affirm the trial court’s order.
Rebeca C. Martinez, Justice
-7- | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523764/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00892-CV
IN THE INTEREST OF L.M.R., a Child
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2019-PA-02001
Honorable Peter A. Sakai, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: April 8, 2020
AFFIRMED
Appellant D.D. appeals the trial court’s December 11, 2019 final order in a suit affecting
the parent-child relationship (“SAPCR”) that appoints her possessory conservator of her child,
L.M.R., and appoints D.D.’s mother and L.M.R.’s maternal grandmother, J.G., as L.M.R.’s non-
parent permanent managing conservator. We affirm the trial court’s order.
BACKGROUND
D.D. is the mother of two children, C.D. and L.M.R. In June of 2018, the Department of
Family and Protective Services (“the Department”) attempted to work services with D.D.’s family
after receiving reports of domestic violence between D.D. and L.M.R.’s father, L.R. The
Department also received reports that D.D. used illegal drugs, had attempted suicide, and had
expressed suicidal ideations. On December 5, 2018, the Department removed the children from
D.D.’s custody because D.D. overdosed and was hospitalized in a mental health facility.
D.D. and the children lived with J.G. for a significant portion of the children’s lives. After
the Department removed the children, it placed them with J.G. and filed a petition to terminate the
parental rights of D.D., L.R., and C.D.’s father, H.T. However, the Department eventually
abandoned its request to terminate the parents’ rights, and C.D moved to California to live with
H.T. 1 J.G. intervened in the case and sought sole managing conservatorship of L.M.R. The
Department agreed that J.G. should be named permanent managing conservator of L.M.R., and it
recommended possessory conservatorship for D.D. and L.R.
On December 11, 2019, the trial court signed a final order appointing J.G. as L.M.R.’s
permanent managing conservator and D.D. and L.R. as possessory conservators. The court found
that appointing either D.D. or L.R. as managing conservator would not be in L.M.R.’s best interest
because that appointment would significantly impair L.M.R.’s physical health or emotional
development. The trial court ordered that D.D. would have possession of and access to L.M.R. for
four hours per week and prohibited D.D. from residing or staying overnight in the home where
L.M.R. lives. It also ordered J.G. to supervise D.D.’s visits with L.M.R. While D.D. appealed the
trial court’s order, L.R. did not. 2
ANALYSIS
Standard of Review
We review a trial court’s orders regarding conservatorship of a child for abuse of discretion.
In re R.J., 381 S.W.3d 619, 622 (Tex. App.—San Antonio 2012, no pet.). “In family law cases,
legal and factual sufficiency challenges do not constitute independent grounds for asserting error,
but are relevant factors in determining whether the trial court abused its discretion.” In re I.Z.K.,
1
On September 25, 2019, the trial court severed the cases involving C.D. and L.M.R. D.D.’s appeal of the trial court’s
final SAPCR order regarding C.D. is currently pending in this court in Cause Number 04-19-00866-CV.
2
L.R. filed a brief adopting the Department’s arguments on appeal.
No. 04-16-00830, 2018 WL 1176646, at *2 (Tex. App.—San Antonio Mar. 7, 2018, no pet.) (mem.
op.) (internal quotation marks omitted). A trial court does not abuse its discretion so as to require
reversal unless it acts arbitrarily, unreasonably, or without reference to any guiding rules or
principles. Alvarez v. Alvarez, No. 04-13-00787-CV, 2015 WL 1938700, at *1 (Tex. App.—San
Antonio Apr. 29, 2015, no pet.) (mem. op.). A trial court has “wide latitude” on issues of custody,
control, possession, and visitation. Brendel v. Brendel, No. 04-08-00883-CV, 2009 WL 3789604,
at *1 (Tex. App.—San Antonio Nov. 11, 2009, no pet.) (mem. op.). This standard of review
recognizes that the trial court “is in the best position to observe the demeanor and personalities of
the witnesses and can feel forces, powers, and influences that cannot be discerned by merely
reading the record.” Roberts v. Roberts, 402 S.W.3d 833, 841 (Tex. App.—San Antonio 2013, no
pet.) (internal quotation marks omitted).
Applicable Law
In a termination proceeding, if the trial court does not order termination of the parent-child
relationship, it shall either (1) deny the Department’s petition or (2) render any order in the best
interest of the child. TEX. FAM. CODE ANN. § 161.205; In re M.I.A., No. 04-19-00227-CV, 2019
WL 5030241, at *9 (Tex. App.—San Antonio Oct. 9, 2019, no pet.). In all cases involving
conservatorship of a child, the best interest of the child must be the trial court’s primary concern.
TEX. FAM. CODE ANN. § 153.002; Roberts, 402 S.W.3d at 841. “It is a rebuttable presumption that
the appointment of the parents of a child as joint managing conservators is in the best interest of
the child.” TEX. FAM. CODE ANN. § 153.131(b). However, that presumption is overcome if the trial
court “finds that appointment of the parent or parents would not be in the best interest of the child
because the appointment would significantly impair the child’s physical health or emotional
development.” Id. § 153.131(a).
Application
D.D. argues that legally and factually insufficient evidence supports the trial court’s finding
that appointing her as managing conservator would significantly impair L.M.R.’s physical health
or emotional development. The Department responds that the evidence supports the trial court’s
ruling and the court therefore did not abuse its discretion.
The Department caseworker who was assigned to this case testified that D.D. endangered
her children by, inter alia, failing to maintain a safe and stable home, using fake urine in drug tests,
engaging in criminal activity, and continuing an on-and-off-again relationship with L.R. even
though she claimed he abused her. The caseworker also noted that during the course of this case,
D.D. was hospitalized several times for suicidal ideations and once attempted suicide. In addition,
the caseworker reported that D.D.’s older child, C.D., had told his after-school teacher and his
father that he wanted to kill himself. Based on her observations, the caseworker did not believe
D.D. demonstrated an ability to change the behavior that led to the children’s removal. She noted,
for example, that D.D. had held “[a]t least five” different jobs over the course of this case and that
D.D. sometimes cancelled visits with the children because she reported being “too emotional” for
a visit. She also testified that she did not believe D.D. had adequately treated her mental health
conditions or shown that she can provide a safe and stable home environment for children. The
caseworker testified that she believes D.D. could pose a risk to the children if she were awarded
unsupervised visits with them. The caseworker agreed, however, that D.D. loves her children and
“interact[s] well” with L.M.R.
The Department also expressed concern about a June 4, 2019 incident in Lookout
Comanche Park that ended with D.D.’s arrest. The arresting officer, San Antonio Police
Department Detective James Burnette, testified that he was called to the park to investigate “a lady
in a car with a gun.” Detective Burnette testified that the woman he encountered “was extremely
drunk, acting like a drunk acts, very irrational, combative, argumentative” and that she said
“something to [the] effect” of asking him to shoot her. He also testified that she threatened, swore,
and spit at him and his partner, and that she used a racial slur against his partner. At trial, Detective
Burnette was unable to positively identify D.D. as the woman he arrested, but his police report
identifying her by her full name and describing her actions that night was admitted into evidence.
D.D.’s therapist, Glenn Tisdale, testified that D.D. told him she put a gun in her mouth and
pulled the trigger. See In re R.R., No. 02-13-00464-CV, 2014 WL 3953930, at *3 (Tex. App.—
Fort Worth Aug. 14, 2014, no pet.) (mem. op.) (identifying parent’s “history of mental disorders
[and] suicidal thoughts” as relevant to best interest determination). Tisdale also testified that D.D.
told him she did not want the responsibility of being a mother, and she acknowledged that “[o]n
some occasions” it was unsafe for her to be around her children. Tisdale testified D.D. had been
stable for approximately 60 days before trial but “the pattern is that [stability has] not always been
present.” He noted that she had been manic or unstable “more than half of the times” he had seen
her. He also testified that if D.D. does not take her prescribed medications, “there is a chance or
risk factor for . . . stress or frustration to be present with [the] children.” Based on these
observations, Tisdale believed D.D.’s visits with the children should be supervised.
D.D.’s current boyfriend testified that he called the police during the June 4 incident in the
park, that he owned the rifle the police removed from D.D. at that time, and that D.D. had taken
the rifle from him. He testified that D.D. “had a lot of anger toward herself,” but she is taking her
medication regularly and is more stable now than she was at the beginning of their relationship.
He does not believe she poses a danger to the children or anyone else and testified that “since she’s
been with me, she’s had more stability.” He believed it would be appropriate for D.D. to have
unsupervised access to her children for an extended period of time. He acknowledged, however,
that at the time of trial, he and D.D. had only been together for approximately four months.
D.D. described the June 4 incident as “a mental breakdown” that occurred because she
“was internalizing all of the negative things that were said about [her]” during a hearing in this
case that occurred earlier that day. She testified that since then, she has been put on a medication
regimen that makes her “completely able, stable, capable.” She told the trial court she has “learned
a lot of coping skills” over the course of this case and that she does not believe her access to her
children should be limited or supervised.
A trial court does not abuse its discretion if there is some evidence of a substantive and
probative character to support its ruling, even if the record contains conflicting evidence. In re
H.N.H., No. 04-18-00574-CV, 2019 WL 2996972, at *2 (Tex. App.—San Antonio July 10, 2019,
no pet.) (mem. op.). Here, although both D.D. and her current boyfriend testified that D.D.’s mental
health had stabilized, other witnesses testified that D.D.’s stability is “mostly up and down” and
that she exhibited erratic and dangerous behavior during the pendency of this case. Based on this
evidence, we hold the trial court did not abuse its discretion by finding that appointing D.D. as a
managing conservator would significantly impair L.M.R.’s physical health or emotional
development and was therefore not in L.M.R.’s best interest. See TEX. FAM. CODE § 153.131.
Accordingly, we overrule D.D.’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s December 11, 2019 final order in a suit affecting the parent-
child relationship.
Beth Watkins, Justice | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3861250/ | Argued April 28, 1942.
This action is based on negligence. The plaintiff is a dentist. The relief sought is damages for the destruction *Page 632
of his office equipment by fire. After a verdict in the sum of $2000 he filed a motion for new trial on the ground the verdict was inadequate. Defendant filed a motion for judgment n.o.v. The court granted the motion for judgment n.o.v. and refused the motion for new trial; the plaintiff appealed.
Appellant occupied the second floor of a V-shaped, triangular building fronting on three streets of the City of Pittsburgh, Fifth Avenue, Liberty Street, and Market Street. Trolley cars of appellees which pass the Fifth Avenue side of the building going north make a sharp turn into Liberty Street, the turn being greater than a right angle. The cars are powered by an overhead line which, of course, turns the corner with the tracks. It appears from photographs that at the apex of the curve there are three guy wires closely spaced on the trolley wire, which converge to a single attachment on a pole across the street from appellant's office. On the corner adjacent to the office building is another post to which are attached a veritable network of overhead wires. In addition to several guy wires, there is the necessary wiring for an attached traffic light and a large electric sign. A flexible cable leads from the electric sign to the building where it connects, through a panel board, with appellant's electrical equipment.
For perhaps a year prior to the accident it was a daily occurrence that, as appellees' cars negotiated the curve, the trolley pole would fly off and strike one or more of the guy wires. According to a qualified engineer, this striking of the pole against the guy wires would "tend to weaken either the insulator or the wires and their connections."
About six o'clock in the morning of December 17, 1938, as a car was passing, a policeman observed an unusual flash which "seemed to be coming from the trolley, the antenna to the trolley wire. . . . . ." The car stopped, the motorman got off, replaced the trolley pole which had slipped off the wire, and the car then *Page 633
moved on. The policeman then "looked up there and saw a [guy] wire dangling." This was immediately followed by the appearance of a flame along the wire leading from the electric sign to the building. And about a minute later, there was a flash or explosion on the second floor of the building.
In its opinion, the lower court said: "The weakness of plaintiff's position, as we view it, is that assuming that the breaking of the insulator, thereby causing the span wire to hang down, was the proximate cause of the injury complained of — and, in our opinion, there cannot be any serious question as to that — and that it was in a weakened condition as a result of the trolley poles striking against the wires or their attachments, there is no evidence that the weakness was patent and therefore discernible upon reasonable examination and inspection or what, if any, practicable measures should have been taken to guard against the breaking of the insulator or the wires."
We are unable to agree with the conclusion that there was insufficient evidence to support a finding of negligence.
It is well settled in this Commonwealth, that the rule of res ipsa loquitur does not apply to a broken trolley wire or a fallen trolley pole. Lanning v. Pittsburg Railways Co., 229 Pa. 575,79 A. 136; Patterson Coal Supply Co., v. Pittsburg Railways Co.,37 Pa. Super. 212; Zercher v. Philadelphia Rapid TransitCo., 50 Pa. Super. 324. But the quantum of proof necessary to establish negligence is very slight. Dougherty v. PhiladephiaRapid Transit Co., 257 Pa. 118, 124, 101 A. 344. We think it was supplied by the evidence that the pole was permitted frequently to slip off and strike the guy wire, that the striking would have a tendency to weaken the insulator or the wire and that, after the condition had been permitted to exist for about a year, the wire or insulator broke. The test is whether defendant's conduct would, with reasonable forseeability, *Page 634
result in injury, not merely whether the weakness in the guy wires could be observed by inspection. Nor was it appellant's duty to suggest what corrective measures should have been adopted. In Dougherty v. Philadelphia Rapid Transit Co., supra, the court suggested the conductor might be instructed to hold the trolley pole rope when the car traveled over a spot where an accident might happen if the trolley pole slipped off. In the present case, if some of the cars were one-man cars, the appellees might have assigned an extra man to board the cars as they negotiated the corner, or perhaps the appellees could have ascertained how long it would ordinarily require the wires to become weakened to the danger point and replaced them periodically. But these questions were all for the jury, not the court.
The order granting appellees' motion for judgment n.o.v. must be vacated.
There remains for consideration appellant's argument that the court also erred in refusing his motion for new trial. He offered evidence which, if believed, might have justified a verdict in his favor for approximately $4500. This represented the total value of property alleged to have been destroyed. But the evidence was oral and its weight for the jury. Since the verdict was substantial, we would not consider the refusal of a new trial an abuse of discretion. Woodward v. Consolidated Traction Co.,17 Pa. Super. 576; Zamojc v. Fisher, 127 Pa. Super. 171,193 A. 315; Patterson v. Pittsburgh Railways Co., 136 Pa. Super. 432, 7 A.2d 478. But motions for new trial are primarily addressed to the discretion of the trial court. And since it does not appear that the motion was disposed of on its merits but was refused because of the court's conclusion to enter judgment n.o.v., we consider it better practice to return the record so that appellant's motion for new trial may be decided on its merits. *Page 635
See Dalmas v. Kemble, 215 Pa. 410, 413, 64 A. 559; Buck v. Henry,52 Pa. Super. 477, 481.
It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3230073/ | John C. Weeks was sheriff of Dale county and as such executed an official bond as required by law with this defendant, National Surety Corporation, as surety. J. T. Weeks was the son of John C. Weeks and his regularly appointed deputy sheriff.
For and on account of an assault and battery committed by John C. and J. T. Weeks on plaintiff on or about October 23, 1933, the plaintiff brings this suit against the defendant as surety on the official bond of John C. Weeks as sheriff.
There are many exceptions reserved on the trial and appearing in the record before us, but none of these are to be considered on this appeal by reason of the fact that the only assignment of error is the action of the court in giving, at the request of the defendant, the general affirmative charge as requested in writing.
The question here presented depends upon the inquiry as to whether or not the sheriff and his deputy were acting within the line and scope of their authority in making the assault upon plaintiff within the contemplation of the obligations of the indemnity bond executed by this defendant.
The legal effect of the official bond in this case binds the principal and sureties thereon: (1) For every breach of the condition during the time the officer continues in office, or discharges any of the duties thereof. (2) For the faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of such bond, although no such condition is expressed therein. (3) For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by the failure to perform or the improper or neglectful performance of those duties imposed by law. (4) The words, "For the use and benefit of every person injured," as used in subdivision 3, shall include all persons having a direct and proximate interest in the official act or omission, and all persons connected with such official act or omission by estate or interest. American Surety Co. of New York v. First National Bank of Montgomery, 203 Ala. 179, 82 So. 429.
It is generally held and accepted to be the law that liability on an official bond arises only with reference to acts of the officer which pertain to some function or duty which the law imposes upon his office. Sureties are not liable for a purely personal act of an officer not done as a part of or in connection with his official duties. Where, though an officer, he commits an assault or a trespass not connected with the execution of legal process, nor with the legal functions of his office, his surety could not be liable by reason of the bond. 46 Corpus Juris, 1068 (399) 4.
The evidence in this case has been read and reread and in no part of it do we find any evidence tending to prove that the sheriff and his deputy were acting in their official capacities at the time of the assault upon plaintiff. They had no process to be executed, nor were they attempting to make an arrest of the plaintiff at the time of the assault. It appears to have been a personal matter between the sheriff and his deputy on the one part and the plaintiff on the other, and for that reason the court properly gave the affirmative charge at the request of the defendant.
We find no error in the record and the judgment is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3997981/ | I disagree with the majority upon two phases of the case:
I. I am of the opinion that appellant's steam heating plant and its operation are so intimately and vitally connected with its electric system that, for assessment purposes, the two utilities are to be regarded as a single unit. The properties of the two systems are under one ownership; they are jointly mortgaged to secure about sixty million dollars of outstanding bonds; a portion of the steam is produced with electricity from appellant's intercounty electric system; the managerial, *Page 436
executive, and accounting personnel perform the necessary services for both systems indiscriminately. In other words, the ownership, the activities, the sources of income, and the expense of operation of the two systems are unified. The mere fact that the steam heating plant itself is located wholly within King county and supplies steam to the business section of the city of Seattle only, is of minor importance when it is considered that appellant is engaged generally in the sole business of producing and distributing heat, light, and power in whatever form, over an area much larger than King county alone.
In valuing each county's proportion of an intercounty public service company's operating property, it is necessary to fix the value of the entire system. Northern Pac. R. Co. v. State,84 Wn. 510, 147 P. 45, Ann. Cas. 1916E, 1166. One of the favorite and most reliable criteria for determining the value of public service companies is known as the stock and bond method. That method is accurately described by Judge J. Stanley Webster in the case of Northern Pac. R. Co. v. Adams County, 1 F. Supp. 163,172, as follows:
"The authorities recognize as a relevant and highly important factor the value of the corporation's outstanding stock and bonds — the so-called `stock and bond' method. Under this plan, the average market quotations of the stock and bonds over a more or less arbitrarily fixed period of time is found, and this figure is multiplied by the total number of outstanding units of each class of securities. The result is supposed to reflect the value of all the stock and bonds outstanding, and consequently to evidence the value of all the corporation's property or assets. From this amount is deducted the value of the nonoperating property of the corporation, and the residue is taken as the value of its operating property — the property to be assessed. There is no dispute amongst counsel *Page 437
that this is a proper element to be taken into account, but, if there were dispute, the authorities amply sustain it, and I shall leave it there."
In State Railroad Tax Cases, 92 U.S. 575, 605, 23 L.Ed. 663, appears the following statement:
"It is therefore obvious, that, when you have ascertained the current cash value of the whole funded debt, and the current cash value of the entire number of shares, you have, by the action of those who above all others can best estimate it, ascertained the true value of the road, all its property, its capital stock, and its franchises; for these are all represented by the value of its bonded debt and of the shares of its capital stock."
Since the value of the entire assets of a public service company functioning in several counties must be considered in order to determine the value of its operating property, the state tax commission is, in the very nature of things, the proper authority to determine the comprehensive value. Any other method would be found, as it has many times been found, to be productive of inaccuracies, inequalities, and general confusion.
Recognizing the advantages of a systematized plan for assessment and the disadvantages flowing from multiplied local assessments, the legislature in 1935 adopted a uniform method for the assessment and taxation of properties of transportation and utility companies, including electric light and power, and heating companies. Section 2 of chapter 123, Laws of 1935, p. 361, provides:
"In all matters relating to assessment and taxation the commission shall have jurisdiction to determine what is operating property and what is non-operating property."
Section 7, p. 363, of the act provides for assessment, by thetax commission, of the operating property of *Page 438
such companies. Section 15, p. 368, of the act provides that the actual cash value of the operating property of such companies shall be apportioned by the commission to the respective counties and taxing districts wherein such property is located. Section 16, p. 370, provides that, when the state board of equalization shall have determined the equalized assessed value of the operating property of such companies, the commission shall certify such equalized assessed value to the county assessor of the respective counties, whereupon such value shall constitute the assessed valuation of the operating property in such county, upon which the taxes shall be levied and collected.
In Smith v. Northern Pac. R. Co., 7 Wn.2d 652,110 P.2d 851, we said:
"Under the authority vested in the tax commission by § 2 of the 1935 act (Rem. Rev. Stat. (Sup.) § 11156-2), that body has jurisdiction to determine what is operating property and what is non-operating property. In the absence of fraud, or of arbitrary and capricious action, its determination of such questions is controlling."
In view of the intercounty activity of appellant, I am of the opinion that the state tax commission is the proper authority to classify appellant's properties and to assess its operating property, and that the Redd case and the NorthwesternImprovement Company case, relied upon in the majority opinion, have no application here.
II. I am of the further opinion that appellant should have been allowed to recover on account of double taxes paid for the years 1936 and 1937. Although a literal interpretation of Rem. Rev. Stat., § 11315-6 (Laws of 1931, chapter 62, p. 204, § 6), quoted in the majority opinion, would bar this action in so far as it relates to those years, I am of the opinion that the *Page 439
statute did not contemplate, and therefore does not affect, the situation presented by this case.
It is apparent, I think, from the language of Rem. Rev. Stat., § 11315-2 (Laws of 1931, chapter 62, p. 201, § 2), that the statute contemplated the usual situation where a person, deeming a tax levied against his property to be unlawful or excessive, might, nevertheless, pay the tax under protest and thereupon
sue for the recovery thereof. In such instances, the taxpayer knows, or is presumed to know, that the tax has been levied. In the case at bar, however, appellant neither knew, nor should be presumed to know, of the levy by the county assessor for the 1936 and 1937 taxes, because in the same year the identical property had been assessed by the state tax commission, and the taxes which were levied pursuant thereto had in good faith been paid. Appellant did not learn of the county assessor's former levy until 1940, at which time the literal wording of Rem. Rev. Stat., § 11315-6, would bar it from any relief whatever.
To hold that appellant was required to institute its action within the time specified by the statute would, under the circumstances of this case, have compelled it, and likewise would have enabled it, to bring the action before it had actually paid the tax, even though it had no knowledge that the tax had been levied. Certainly the legislature did not contemplate that situation, for the statute is to the contrary. Any action brought before payment of the tax would be premature. There is no contention here that there was any delay in bringing the action after the tax was actually paid.
If the language of the statute, taken literally, is nevertheless sufficient to cover the present case, then I think that it should be held to be unreasonable, unjust, and equivalent to taking property without due *Page 440
process of law, because the taxpayer is thereby deprived of the right to a hearing in court.
For these reasons I dissent.
ROBINSON, C.J., concurs with STEINERT, J. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1975969/ | 153 Ill. App. 3d 700 (1987)
505 N.E.2d 691
LELAND J. EBERLE, Plaintiff-Appellant,
v.
FRANK T. BRENNER et al., Defendants (Henry G. Garrolts & Sons, Defendant-Appellee).
No. 4-86-0434.
Illinois Appellate Court Fourth District.
Opinion filed February 10, 1987.
Rehearing denied April 13, 1987.
Wayne R. Golomb, of Springfield, for appellant.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Gary L. Cline, and Glenn C. Ronaldson, of counsel), for appellee.
Order affirmed.
JUSTICE KNECHT delivered the opinion of the court:
The plaintiff, Leland J. Eberle, appeals from an order of the circuit court of Adams County granting the defendant, Henry T. Garrolts & Sons, a setoff against the jury verdict awarded against it in favor of the plaintiff. The plaintiff claims the amount paid to him in settlement by another defendant may not be credited against the judgment entered against this defendant as the two defendants were not joint tortfeasors and the liability of the settling tortfeasor was never established.
*701 Many of the facts giving rise to this appeal are set forth in greater detail in the plaintiff's first appeal, Eberle v. Brenner (1985), 131 Ill. App. 3d 394, 475 N.E.2d 639. Plaintiff was injured while cleaning high-pressure spray-painting equipment manufactured by Binks Manufacturing Company (Binks) and leased by defendant (Garrolts). Plaintiff sustained a high-pressure injection injury to his left index finger. He was immediately transported to the emergency room of Blessing Hospital in Quincy where he was treated by Dr. David Drennan. Later, Dr. Frank Brenner operated on the plaintiff's finger. The condition of the finger worsened, necessitating its amputation by Dr. Lewis Kinkead.
On February 23, 1982, the plaintiff filed a multicount complaint against Binks and Garrolts premised upon products liability and negligence. The plaintiff also alleged in his complaint malpractice claims against Frank T. Brenner, M.D., David B. Drennan, M.D., and Blessing Hospital. All defendants filed pretrial motions. Prior to the resolution of those motions, defendant Blessing Hospital settled with the plaintiff and paid him $18,000. The trial court then granted summary judgment to all remaining defendants, and the plaintiff initiated his first appeal. The appeal resulted in an affirmance of summary judgment in favor of both doctors and a reversal of summary judgment entered in favor of Binks and Garrolts. The cause was remanded to the trial court for further proceedings against Binks and Garrolts.
A jury trial against the two remaining defendants began on March 31, 1986, and resulted in a verdict for the plaintiff against Garrolts on the negligence counts only and in favor of Binks on both the negligence count and the products liability count. The jury assessed damages in the amount of $56,000 but reduced the award by 50% because of the plaintiff's own contributory negligence. After judgment was entered on the verdicts, Garrolts tendered the plaintiff $10,000 in full satisfaction of the judgment, claiming an $18,000 setoff in view of the settlement reached between Blessing Hospital and the plaintiff prior to judgment. The plaintiff filed a motion entitled "Motion to disallow claim of contribution," and on June 16, 1986, the trial court entered an order denying the plaintiff's motion and granting the defendant an $18,000 setoff. The plaintiff filed a timely notice of appeal asking the circuit court order allowing contribution be reversed.
The plaintiff contends this situation is governed by "An Act in relation to contribution among joint tortfeasors" (Act) (Ill. Rev. Stat. 1985, ch. 70, pars. 301 through 305) and that the Act imposes a *702 burden of proof upon a defendant claiming a right of contribution to make a showing that the party from whom it claims contribution is a joint tortfeasor and is liable to the plaintiff. Plaintiff maintains not only did the defendant not show that the hospital from whom it sought contribution was liable to the plaintiff but that the defendant could not show such liability on the part of the hospital given the facts of this case.
The only testimony at trial touching on the liability of any medical-care provider was given during the cross-examination of Dr. Edward Budil, who testified as an expert for the plaintiff. Dr. Budil testified he did not think he could tell at the time he saw plaintiff's finger whether or not the medical care given to the plaintiff contributed to the extent of the gangrenous changes and subsequent loss of the plaintiff's finger. Dr. Budil testified the damage may have already been done within a few minutes after the injury and, in that case, no type of surgery would have salvaged his finger. On further questioning, Dr. Budil stated there was "always a chance" that the medical care could have contributed to the loss of the plaintiff's finger. Plaintiff maintains this testimony as well as the fact that it had previously been established through summary judgment proceedings that the plaintiff did not have a cause of action against any of his medical-care providers clearly showed Blessing Hospital was not a tortfeasor. A careful reading of our opinion in Eberle v. Brenner (1985), 131 Ill. App. 3d 394, 475 N.E.2d 639, however, shows only that the summary judgment precluded liability on the part of the doctors and not the hospital.
It is not as clear as the plaintiff contends that the Act requires a determination of a settling codefendant's liability to the original plaintiff before allowing a setoff of his settlement as contribution to another defendant. (See Nguyen v. Tilwalli (1986), 144 Ill. App. 3d 968, 495 N.E.2d 630.) In this case we are not dealing with a case of contribution governed by the Act, but with a setoff despite the wording used in the motion and order below.
1 The theory of recovery in a negligence action is focused upon compensation to the plaintiff for his injuries and not punishment to the defendant. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 363, 392 N.E.2d 1, 5.) An injured person is entitled to one full compensation for his injuries, and a double recovery for the same injury is against public policy. (Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 412 N.E.2d 518.) Thus, a plaintiff who has recovered for his damages should have no basis to complain because a defendant benefited from a setoff.
*703 2 The original negligence on the part of the defendant is viewed as the proximate cause of all damages flowing therefrom, including any subsequent malpractice of a medical-care provider such as Blessing Hospital. (Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40.) Because of the liability of an original tortfeasor, such as Garrolts, for any subsequent aggravation of plaintiff's injury by a medical-care provider, the original tortfeasor has a cause of action against the medical entity for that portion of the damages caused by its conduct. 55 Ill. 2d 84, 92, 302 N.E.2d 40, 44.
3 The jury in the instant case found the loss of plaintiff's finger to be worth $56,000 and assessed damages in that amount against Garrolts. This total included the amount which would be attributable to Blessing Hospital for any actions it took which may have aggravated plaintiff's original injury. Setting off the $18,000 amount which the hospital already voluntarily paid plaintiff in settlement compensation for any injuries it may have caused merely saved defendant the trouble of suing the hospital to recover the hospital's share of the total liability. It did not unjustly enrich defendant and definitely not at the expense of plaintiff. To allow plaintiff to have the settlement payment from the hospital while requiring Garrolts to pay the entire amount of the judgment against it would allow a double recovery to the plaintiff. The plaintiff would then be receiving more than the jury determined he should be allowed to recover, having reduced his recoverable damages by 50% due to his own negligence in the use of the product. The setoff was properly allowed by the trial court.
For the foregoing reasons we affirm the order of the circuit court.
Affirmed.
GREEN and LUND, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3994284/ | This appeal is from the judgment of the lower court dismissing an application of appellant for writ of mandate against respondents, members of the board of prison, terms, and paroles, together with the warden of the Washington state penitentiary. Respondents demurred to the petition on the ground that the same did not state facts sufficient to constitute a cause of action or to justify any relief. An order was entered sustaining the demurrer and, appellant having refused to plead further, a judgment of dismissal was entered.
Appellant was duly convicted on October 24, 1931, of the crime of grand larceny, by the superior court for King county, and was sentenced on March 11, 1932, by that court, to serve not less than five years and not more than fifteen years on each of three counts, the sentences to run concurrently. This judgment and sentence was affirmed by this court in State v. Linden,171 Wash. 92, 17 P.2d 635, and appellant was accordingly committed to the state penitentiary at Walla Walla in March, 1933.
At the time of the sentence in this case, the maximum penalty for the crime was fifteen years. (Rem. Rev. Stat., § 2605 [P.C. § 8948].) Since no minimum penalty was prescribed by this statute, under the law prescribing indeterminate sentences, the court was required to "fix the same in his discretion at not less than six months nor more than five years." (Rem. Rev. *Page 247
Stat., § 2281, repealed by Laws of 1935, chapter 114, § 9, p. 319.) Under the then existing law, the state board of control, acting in conjunction with the warden of the state penitentiary, was entrusted with discretionary authority to release on parole after the expiration of the minimum term of imprisonment for which a prisoner had been committed under such terms and conditions as were deemed advisable. (Rem. Rev. Stat., § 2282.) Subsequently, the board of prison, terms, and paroles was created. (Rem. Rev. Stat. (Sup.), § 10249-1 [P.C. § 4503-31], Laws of 1935, chapter 114, p. 308.)
It appears that appellant, since his confinement, has conducted himself as a law-abiding inmate, that his institutional record, with the exception of one minor infraction of the rules, has been exemplary, that he has observed and complied with all the rules and regulations of the institution, and has held assignments of exceptional responsibility and trust.
It also appears that appellant completed his full minimum sentence imposed by the court, less one-third "good-time" allowed under the statute and recommended by the superintendent of the penitentiary, in July, 1936. This matter was in turn placed upon the docket of the board of prison, terms, and paroles at its bi-monthly session on July 6, 1936, the superintendent of the penitentiary having ordered the inclusion of appellant's name upon the docket. Appellant was called before the board, and the hearing in question was had at the state penitentiary at Walla Walla on July 8, 1936.
On or about July 13, 1936, the board issued the following order:
"The board of prison terms and paroles has not accepted the recommendation of the superintendent for good time in your case. When the minimum term of *Page 248
your sentence, as fixed by the court, has been served, your case will again be docketed for consideration by the board."
Appellant does not set forth any specific assignment of error in his brief, but the general tenor of the oral and written argument indicates that the alleged error is that the trial court erred in sustaining the demurrer, inasmuch as the hearing accorded appellant before the board was unfair, and the decision of the board was arbitrary and capricious.
[1] The relevant statutory provisions relating to paroles and to the recommendation of time credits are as follows:
"Every prisoner who has a favorable record of conduct at the penitentiary or the reformatory, as the case may be, or the laws of the state, and who performs in a faithful, diligent, industrious, orderly and peaceable manner the work, duties and tasks assigned to him to the satisfaction of the superintendent of the penitentiary or the reformatory, as the case may be, and in whose behalf the superintendent of the penitentiary or reformatory shall file a report certifying that his or her conduct and work have been meritorious and recommending allowance of time credits to him or her, shall upon, but not until, theadoption of such recommendation by the board of prison, terms andparoles, be allowed time credit reductions from the term ofimprisonment fixed by the board of prison, terms and paroles."
Rem. Rev. Stat. (Sup.), § 10249-2 [P.C. § 4503-32] (b); Laws of 1935, p. 312, § 2 (b). (Italics ours.)
"The board of prison, terms and paroles may permit a convicted person to leave the buildings and enclosures of the penitentiary or the reformatory, as the case may be, on parole, after such convicted person has served the period of confinement fixed for him or her by the board of prison, terms and paroles, less time credits for good behavior and diligence in work as provided for by this board: Provided, that in no case shall the inmate be credited with more than one-third *Page 249
of his sentence as fixed by the board." Rem. Rev. Stat. (Sup.), § 10249-4 [P.C. § 4503-34]; Laws of 1935, p. 313, § 4.
It is thus necessary to determine if the board is assigned ministerial or discretionary duties under the statute cited. The distinction between ministerial and discretionary duties has been stated as follows:
"Although courts have no right to control discretion except where it has been abused, it is none the less within the province of the courts to decide whether an act sought to be enforced is or is not ministerial. Whether the duty imposed is judicial or ministerial is to be determined by the nature of that duty, and not by the tribunal or person that is to discharge it. Judicial tribunals are often charged with the performance of purely ministerial functions and on the other hand executive or ministerial officers are also sometimes charged with judicial or quasi-judicial functions. While there is some conflict of opinion as to what constitutes, strictly speaking, a ministerial duty as distinguished from a discretionary duty, and while it is not always easy to determine where the line of demarcation lies between a ministerial act and an act involving the exercise of judgment, the distinction between merely ministerial and judicial and other official acts is generally said to be that, where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial." 38 C.J. 597, § 72.
Under the statutes cited above, it is clear that the board is clothed with discretionary authority, and it is not enjoined therein to perform any ministerial acts. The application of the recommendation of a superintendent of the penitentiary for the allowance of time credits is expressly conditioned upon its adoption by the board. *Page 250
The granting of a parole to a prisoner is also a discretionary act. Parole is not a right, but a privilege to be granted or withheld as sound official discretion may impel.
"Subject to the limitations imposed by statute, the question as to whether a prisoner shall be paroled is a matter for the discretion of the court, or officer or board in whom the authority to parole is vested. As a general rule, the prisoner is not entitled to a parole as a matter of right and, subject to some dissent, a parole is regarded as a mere matter of grace and favor. While, as has just been seen, the granting of a parole is not a matter of right, a prisoner who is eligible to a parole does have a right to have his application considered, and of this right he cannot be deprived by the court." 46 C.J. 1206, § 71.
To the same effect, see Oliver v. State, 169 Tenn. 320,87 S.W.2d 566; Garvey v. Brown, 99 Kan. 122, 160 P. 1027;State ex rel. Greene v. Rimmer, 131 Tenn. 316, 174 S.W. 1134;People ex rel. Cecere v. Jennings, 250 N.Y. 239, 165 N.E. 277;People ex rel. Seiler v. Hill, 348 Ill. 441, 181 N.E. 295.
Assuming, without deciding, that the board is vested with authority to grant a reduction of the minimum sentence fixed in the case at bar by the court, we come then to a consideration of the question whether the board exercised its discretion; and if so, was it exercised fairly and honestly?
Appellant admits that the board accorded him a courteous hearing and duly considered his application. While conceding that, if the board acted arbitrarily, or refused to exercise its discretion, the law will, by mandamus, require it to exercise its discretionary power, we are unable to find, from an examination of the record, that the board acted dishonestly, arbitrarily, or refused to exercise its discretion.
Abuse of discretion must appear very clearly before *Page 251
this court will interfere by mandamus. State ex rel. Cowles v.Schively, 63 Wash. 103, 114 P. 901; State ex rel. BellinghamPub. Co. v. Hinkle, 120 Wash. 85, 206 P. 942; State ex rel.Clithero v. Showalter, 159 Wash. 519, 293 P. 1000; State exrel. Farmer v. Austin, 186 Wash. 577, 59 P.2d 379; 38 C.J. 598, 600; 18 R.C.L. 116, § 28.
For this court to set aside the order of the board, would result in this court's substituting its judgment for that of the board. Morris v. Favor, 134 Wash. 75, 234 P. 1040.
No good purpose would be served by analyzing the authorities cited by appellant. Suffice it to say we have critically examined the same and find them not apposite to the case at bar.
[2] Other issues are suggested in appellant's brief, but they are not before us for consideration, inasmuch as no assignment of error has been made with respect to them as required by Rule VIII, subd. 2, of the rules of this court, 159 Wash. xliii. Blouen v. Quimpere Canning Co., 139 Wash. 436,247 P. 940; Goebel v. Elliott, 178 Wash. 444, 35 P.2d 44.
The judgment is affirmed.
STEINERT, C.J., MAIN, BLAKE, and SIMPSON, JJ., concur. *Page 252 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1976155/ | 768 A.2d 1256 (2001)
Loretta A. PROVOST et al.
v.
Dennis FINLAY, as Treasurer of the Town of Smithfield.
No. 99-549-Appeal.
Supreme Court of Rhode Island.
April 13, 2001.
Present WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Nancy A Palmisciano, Providence, for Plaintiff.
Melody A. Alger, Anthony J. Gianfrancesco, Providence, for Defendant.
OPINION
PER CURIAM.
A party's failure to serve a municipality with timely notice of a claim arising out of a highway-related injury caused the Superior Court to dismiss this compliant. The plaintiff, Loretta A. Provost, appeals from a Superior Court order granting the dismissal motion filed by the defendant, Dennis Finlay, in his capacity as Treasurer of the Town of Smithfield (town).[1]
Following a prebriefing conference, a single justice of this Court assigned this case to the show cause calendar and directed both parties to show cause why the issues raised by this appeal should not be summarily decided. Because no cause has been shown, we proceed to decide the appeal at this time.
The plaintiff alleged that on October 16, 1993, she fell into a manhole while walking *1257 on a sidewalk on Whitman Street in Smithfield. On March 22, 1995, she filed a complaint in the SuperiorCourt to recover damages under G.L. 1956 § 45-15-8 ("Recovery against town for damages from neglect to maintain highway or bridge") for the injuries she allegedly sustained as a result of the fall. The town answered the complaint by denying negligence and raising the defense of lack of timely notice. Thereafter, the parties conducted discovery and the matter proceeded to court-annexed arbitration.
On November 13, 1998, after arbitration proved unavailing and settlement negotiations collapsed, the town moved for dismissal of the complaint. It contended that plaintiff had failed to comply with the sixty-day notice requirement of § 45-15-9 because she had failed to provide notice of her claim to the town until approximately four months after her accident. The plaintiff objected to the motion, but she conceded that her notice was untimely under § 45-15-9. She contended, however, that the town should be estopped from asserting its defense of untimely notice because it had waited almost three years before filing its dismissal motion. Nevertheless, the motion justice granted the town's motion. On appeal, plaintiff maintains that, by waiting until the eve of trial to file its dismissal motion based upon the affirmative defense of lack of timely notice, the town's delay unduly prejudiced her.
The notice requirement in § 45-15-9(a), entitled "Notice of injury on highway or bridge Commencement of action," provides in pertinent part:
"A person so injured or damaged shall, within sixty (60) days, give to the town by law obliged to keep the highway, causeway, or bridge in repair, notice of the time, place, and cause of the injury or damage; and if the town does not make just and due satisfaction, within the time prescribed by § 45-15-5, the person shall, within three (3) years after the date of the injury or damage, commence his or her action against the town treasurer * * *."
The purpose of this statute is to give the municipality an opportunity to investigate claims and, if appropriate, to settle them without litigation. See Tessier v. Ann & Hope Factory Outlet, Inc., 114 R.I. 315, 318, 332 A.2d 781, 782 (1975) (explaining purpose behind § 45-15-9 is "to advise the city inwhat the alleged negligence consists and give an opportunity to investigate, while the facts are fresh and witnesses are available and before the conditions have materially changed, and to decide intelligently whether it is advisable to settle the claim and, if necessary, to prepare for trial").
The plaintiff concedes that she did not send notice to the town pursuant to § 45-15-9 until 124 days after sustaining her injuries. She maintains, however, that the city has waived its right to assert this lack-of-timely-notice defense by waiting over three years to file its dismissal motion on this basis. In support of this assertion, the plaintiff relies upon Mesolella v. City of Providence, 508 A.2d 661 (R.I. 1986). This reliance, we conclude, is misplaced.
In Mesolella, the plaintiff, a developer of a low-income housing project, brought an action alleging that the city of Providence had amended a zoning ordinance to prevent him from building the housing project. 508 A.2d at 663. The Superior Court entered a judgment declaring the amendment null and void and ordering a building permit to issue. Id. This Court affirmed that judgment. Id. Thereafter, Mesolella sought damages and the trial court assigned the matter to a special master for this purpose. Id. at 664. After numerous hearings, the special master awarded Mesolella damages in the amount of $715,182.82 for the city's wrongful interference with his proposed development. Id. at 665.
In its appeal to this Court, the city argued that the trial justice had erred in denying its motion to dismiss for Mesolella's *1258 failure to give the city the required notice of his claim pursuant to § 45-15-5. Id. The city contended that because Mesolella had failed to present his claim against it to the city council before he filed suit, his action should have been barred, under § 45-15-5. Id. The city acknowledged that it had neglected to raise this defense until nearly four years after the suit had commenced. Id. As a result, Mesolella contended, the city had waived its right to assert the defense of lack of notice under the provisions of Rule 9(c) of the Superior Court Rules of Civil Procedure. Id. at 667; see also Super. R.Civ. P. 9(c) ("Conditions Precedent. * * * A denial of performance or occurrence shall be made specifically and with particularity.").
This Court agreed, finding that the city had waived the defense of lack of notice. In Mesolella, the Court noted generally that, pursuant to § 45-15-5, the notice requirement is a condition precedent to filing suit against a municipality. 508 A.2d at 666. This Court found, however, that the city's failure to plead the defense, specifically and with particularity, according to Rule 9(c), constituted a waiver of the defense. Id. at 667.
But the Mesolella case is distinguishable from this one. First, Mesolella involved a failure to present a claim to a city council pursuant to § 45-15-5, whereas the case at bar involves lack of timely notice to a municipality under a different statute, § 45-15-9.[2] Second, in contrast to Mesolella, the municipality in this case included the lack-of-timely-notice defense in its answer to the complaint. Thus, the city did not waive its ability to raise this defense by failing to plead it affirmatively, as in Mesolella. Third, unlike the notice required by § 45-15-5, notice pursuant to § 45-15-9 cannot be waived voluntarily or involuntarily. See Lahaye v. City of Providence, 640 A.2d 978, 980 (R.I.1994) (per curiam). In Lahaye, the plaintiff argued that the city had waived its rights to pursue a summary judgment on the basis of insufficient notice under § 45-15-9 after waiting two years to file the motion. Id. at 979. This Court disagreed and held that, under § 45-15-9, "[s]ufficient notice is a prerequisite to bringing suit against a municipality. The notice requirement may not be waived voluntarily or involuntarily." Id. at 980 (citing Batchelder v. White, 28 R.I. 466, 467, 68 A. 320, 320 (1907)).
The plaintiff also argues that the dismissal of her complaint should have been without prejudice in order to permit her to refile it. In support of this assertion, the plaintiff relies upon the case of Blessing v. Town of South Kingstown, 626 A.2d 204 (R.I.1993). In Blessing, the plaintiffs filed an action against the town of South Kingstown alleging negligence. 626 A.2d at 204. The plaintiffs, however, had failed to present their claim against the town to the town council pursuant to § 45-15-5 before they filed their complaint. Id. The town moved to dismiss the action on the ground that the prior presentment of such a claim to the town council was a condition precedent to bringing an action against the town. Id. The court granted the motion and plaintiffs filed a second action under § 9-1-22, the so-called savings statute. Id. at 204-05. The town filed a subsequent motion to dismiss, which was denied. Id. at 205. The town then filed a petition for certiorari to this Court. Id.
On review, this Court ruled that the plaintiffs' failure to file a presentment of claim in an action which had been brought within the statute of limitations, would render the action neither a nullity nor untimely. Id. We determined that because the trial justice's decision was based solely upon an inadequate statutory presentment of the plaintiffs' claim before commencing the lawsuit, the dismissal did not constitute *1259 a judgment on the merits and, thus, the trial justice properly declined to dismiss the second action. Id.
The holding in Blessing, however, does not help the plaintiff in this action. This Court has stated that the notice required by § 45-15-9 is a jurisdictional condition precedent to bringing suit, and if a plaintiff fails to give such notice in a timely manner, the action must be dismissed because the Superior Court's jurisdiction has not been invoked properly. See Barroso v. Pepin, 106 R.I. 502, 506, 261 A.2d 277, 279 (1970).
For these reasons, we deny the plaintiff's appeal and affirm the judgment dismissing the complaint.
NOTES
[1] The town filed a motion to dismiss or, in the alternative, a motion for summary judgment. Although it is not clear from either the order or the transcript which motion the court granted, it makes no difference to the disposition of this appeal.
[2] It should also be noted that in Mesolella, the Court found that the city had "actual notice of the pending litigation and ample time to attempt to settle the claim, [which is] the purpose of the notice requirement." Mesolella v. City of Providence, 508 A.2d 661, 667 (R.I.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3403563/ | 1. The defendant was tried on an indictment for murder, and convicted of voluntary manslaughter. He filed his amended motion for a new trial, which was overruled, and assigns error on this judgment. This is the second trial under the indictment. On the first trial the defendant was convicted of murder. On April 21, 1946, the Supreme Court reversed that judgment (200 Ga. 566). The evidence is quite lengthy and conflicting. As to the general grounds, neither counsel for the State nor counsel for the defendant are at variance as to any point of law involved, except the defendant on one hand claims that the evidence is insufficient to sustain the verdict and the State takes the contrary view. We must assume that the court charged fully every principle of law applicable to the evidence. This is true, since there is no assignment of error on the charge or any portion thereof. Indeed, the charge is not made a part of the record. There is some evidence that would sustain a verdict of manslaughter either on the theory of homicide under a passion, or a homicide under the principle of mutual combat. We see nothing to be gained by detailing the evidence. The general grounds are not meritorious.
2. Special ground 1 assigns error on the admission of evidence over the objection of the defendant. This was testimony by the widow of the deceased. It was in rebuttal of the defendant's statement. The defendant in his statement had related a conversation that he had with the deceased on the morning of the homicide, which occurred in the afternoon. In effect, the defendant stated that when the deceased arrived at the home of the defendant, who lived with the defendant's brother, the defendant asked the deceased why he was so dressed up and where the defendant was going, whereupon the deceased remarked that he drank something that morning, had a fuss with his family, and left home. The widow was allowed to testify that the deceased did not have any fuss with his family and was not drinking to an extent that any person who did not know the deceased well could tell it. If we may concede that this testimony was inadmissible under the whole record of this case, we can not see that it was prejudicial to the defendant. Admittedly, the deceased and the defendant and others engaged in a drinking spree and brawl during the day and until the death of the deceased. Under the record, this portion of ground 1 presents no cause for reversal.
In this same ground error is assigned because the widow was permitted to testify that the deceased owned no knife. This testimony was offered by the State in rebuttal of the defendant's statement that when he shot the deceased, the deceased was advancing on him with his hands in his pocket, stating that he would cut the defendant's throat, and in rebuttal also of testimony for the defendant that the deceased was shot standing near a well, and that several months thereafter the well was cleaned out and mud taken therefrom which contained a knife. Under the record of this case we think that the testimony of the witness related a fact which the jury might well consider along with all the other evidence. We find no cause for reversal for any reason assigned in this ground. *Page 424
3. Special ground 2 assigns error on the admission over the objection of the defendant of testimony offered by the sheriff, who visited the scene of the homicide shortly after the killing. The sheriff made certain measurements at the scene as well as certain tests of shooting with the gun which the defendant used in killing the deceased. During the course of the sheriff's testimony, the following question was propounded to him: "Did you get a measurement from the corner of the house here, from the right-hand corner if you were facing the house, did you get a distance from there to where Mr. Hendrix's [the deceased's] body was lying?" The witness answered, "I measured from the corner of this house." The defendant interposed the following objections: "Now, if the court pleases, before he goes any further, I am objecting to that question and the answer as being an arbitrary distance. There is no evidence in this case at all that Mark West was ever at the locality embodied in the question he is asking. Any other distance might have been taken just as well, and to ask this witness if [he] measured from where the man was to a corner of the house is certainly not a proper question to be asked or answered. It doesn't illustrate any issue in the case, and besides it is prejudicial and hurtful to the rights of the defendant to a fair and impartial trial, in that he is undertaking to involve the corner of the house, given the jury inference that the man might have been standing behind the house and shooting at a different place than the evidence in this case shows so far." The solicitor-general then stated to the court: "I think in view of the testimony of the sheriff, if your honor pleases, what the distance would have had to have been in his judgment at the time Mr. Hendrix shot, we've got a right to compare that with the distance that he finds, whatever it is, that's what I'm asking, from the corner of this house to the wall, certainly it is admissible."
One of the main issues of fact was the distance between where the defendant was standing when he shot the deceased, and where the deceased was standing when he received his mortal wound. This issue also involved the contentions of the defendant in his statement as well as evidence in his behalf as to the exact position and conduct of the defendant and the deceased relative to each other at the time the mortal shot was fired. Under the record, this assignment of error is not meritorious.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.
DECIDED OCTOBER 21, 1946. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3860712/ | The foregoing opinion was prepared by Judge PARKER before his accession to the Supreme Court. It is now adopted and filed as the opinion of the court. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3252806/ | Plaintiffs (appellees) sued the defendants, R. L. Parsons Lumber Manufacturing Company, a partnership, and R. L. Parsons and Carolyn C. Smith, the partners, individually, on six promissory notes, executed to plaintiffs by the defendants under their tradename of R. L. Parsons Lumber Manufacturing Company. The first note was executed on December 16, 1929, and the other five during the early part of the year 1930. The dealings between the plaintiffs and defendants covered a period of several years. The suit was filed in the circuit court of Morgan county on April 15, 1930, and on the next day the plaintiffs caused to be issued out of said court a writ of garnishment, in aid of the suit, directed to and served upon Benton Turrentine, as clerk of the circuit court of Limestone county, who, as such clerk, was supposed to be indebted to defendants, or to have money or effects belonging to defendants in his possession, or under his control.
On May 8, 1930, the said garnishee made answer to the writ, admitting an indebtedness to defendants, at the time of filing his answer, *Page 63
of $900.76. On May 9, 1930, the defendants, under the provisions of section 8063 of the Code, gave bond and collected the money from the garnishee. This bond followed the terms of said statute in all respects.
The defendants, in the main suit, filed numerous pleas, including pleas of want of consideration, failure of consideration, and payment. The judgment entry recites that issue was joined by plaintiffs on each of the pleas, "separately and severally, with leave to give in evidence any matters that would constitute a good reply to said pleas, if well pleaded."
There was verdict for plaintiffs for the sum of $1,724.44, and judgment accordingly. This judgment was rendered on December 2, 1930, and at the conclusion of this judgment entry there follows, under date of December 3, 1930, judgment ascertaining and adjudging that the garnishee was indebted to the defendants, as of date May 8, 1930, in the sum of $900.76, "and that said amount shall bear interest from said date." The court then proceeded: "It is therefore ordered and adjudged by the court that the plaintiffs have and recover of the defendants and of their sureties on said (garnishment) bond, viz.: R. G. Cortner and Clara A. Cortner, the sum of $942.00, together with the cost of the garnishment."
It is insisted, first, by appellees that the judgments are separate, each final and supporting an appeal, and that both cannot be brought up for review by one appeal. In support of this contention appellees cite the case of Decatur Land Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509. This case dealt with a single appeal taken to the circuit court by a landowner from separate improvement assessments made by the city council of the city of New Decatur against each lot, as the statute required. The circuit court, on motion of the city, dismissed the appeal. The judgment of the circuit court was here affirmed, and this court, in that case, observed: "The doctrine upon which this ruling was rested is fully set forth in Mobile Imp. Co. v. Stein, 158 Ala. 113, 115, 116, 48 So. 368, 17 Ann. Cas. 288, and was later followed and approved in Fulton v. State, 170 Ala. 69, 54 So. 165. It is that two or more distinct judgments or decrees, each of which will support an appeal, cannot be united in one appeal. While this rule was announced and applied to a review sought by appeal to the Supreme Court, it is equally applicable to appeals authorized from separate assessments of distinct lots by municipal bodies in the exercise of their powers with respect to public improvements within their jurisdictions."
In the case of Mobile Improvement Co. v. Stein, supra, there was one appeal to this court, which sought to have this court, on that appeal, consider six separate and distinct judgments, in six separate and distinct forcible entry and detainer cases, to recover of the defendant six distinct parcels of land.
In the case of Fulton v. State, supra, the defendant had been convicted under two separate indictments. Two judgments were entered against him, but only one appeal was taken, which included both cases. The appeal was here dismissed upon the authority of Mobile Imp. Co. v. Stein, supra.
In the case of Kelly v. Deegan, 111 Ala. 152, 20 So. 378,379, in an opinion written by Chief Justice Brickell, this court held, "Two distinct decrees — the decree confirming the sale of the real estate, and the subsequent decree of dismissal of the petition of the appellant — cannot be joined, and by a single appeal introduced into this court for review." But the court proceeded to say: "There has been no objection taken to the appeal. If an objection had been made, as matter of right, the certificate of appeal was amendable by the appellant, so as to present either decree, as its subject-matter, for revision."
The case of United States F. G. Co. v. Benson Hdw. Co.,222 Ala. 429, 132 So. 622, also discusses the question, and holds, as a general proposition, that two separate judgments, decrees, or orders cannot be brought up for review by one appeal, when parties are not the same.
Had the appellees made proper motion to dismiss the appeal, it may be, though we do not decide the point, that his motion would be well taken, but no such motion was made, and the insistence is made for the first time in brief filed after the submission. The appellants, if such motion had been made, could have amended the certificate of appeal so as to present either judgment as the subject matter for revision. This was expressly so held in the case of Kelly v. Deegan, supra. In this state of the record, we will not dismiss the appeal, even if it were held to present two separate judgments for review.
It is insisted by appellants that the court committed reversible error in charging the jury, at the written request of the plaintiff: "I charge you that where the maker of a promissory note agrees with payee that if the payee will extend the time of payment to some future date, he will pay the same at the time so stipulated, such promise of the maker constitutes a new contract, binding in law and capable of enforcement, though the maker may have a good defense to the original note before the renewal under such agreement, either because of want of consideration or failure of consideration."
In the case of McCormick Harvesting M. Co. v. Yoeman, 26 Ind. App. 415,59 N.E. 1069, it is held: "It is the settled law in this state that where the maker of a promissory note agreed with the payee that, if the latter *Page 64
will extend the time of payment for a definite time, he will pay the same at the expiration of said period, and the time is so extended, such promise of the maker constitutes a new contract, binding in law, and capable of enforcement, though the maker may have had a good defense to such note before the agreement to extend was made."
It will be noted that the charge in question is almost an exact copy of the foregoing rule, with the added words "either because of want or failure of consideration." To substantially the same effect are the holdings in the following cases: Haglin v. Friedman, 118 Ark. 465, 177 S.W. 429; Stewart v. Simon,111 Ark. 358, 163 S.W. 1135, Ann. Cas. 1916A, 825; Hyer v. York Mfg. Co., 58 Fla. 283, 50 So. 485; Franklin Phosphate Co. v. Intern'l Harvester Co., 62 Fla. 185, 57 So. 206, Ann. Cas. 1913C, 1247.
In the case of Hogan v. Brown Co., 112 Ga. 662,37 S.E. 880, it was held: "One who executed and delivered a promissory note in renewal of a balance due upon a like note previously given for the purchase of personalty, and who at the time of giving the second note knew that this personalty was, when purchased, defective or worthless, was not, in defense to an action on that note, entitled to set up that the consideration thereof had failed because of the defectiveness or worthlessness of the property." To the same effect was the holding of the same court in the case of Atlanta, etc., Co. v. Hutchinson, 109 Ga. 550, and cases cited on page 552 thereof,35 S.E. 124, 125.
In the case of J. B. Colt Co. v. Kelly et al., 142 Miss. 617,107 So. 757, the Supreme Court of Mississippi, in a case very much like the present case, held: "The signing of the renewal note with knowledge of the breaches of the warranties is an estoppel of the defendants from setting up said breaches. Such signing of a renewal note is a waiver of the defense, and may not be set up to defeat the recovery of the renewal note," etc.
In the case of Cameron Johnson v. Nall, 3 Ala. 158, our own court has said: "He [referring to the purchaser of the note] had a right to purchase the note, and after purchase, it could be avoided in his hands for any want or failure of consideration, unless the makers had concealed the fact, on his application to them for information. He afterwards applied to them for payment, as we must presume, and they gave a new note, due more than a year afterwards: Even then they make no claim of a defence. We think the new promise was a waiver of any defence, as to the original consideration, and it would be a fraud on the holder, to permit the defendants now to inquire into the defective consideration of the first note."
The original note in the Cameron Case, supra, in renewal of which the note sued on was given, was not wholly without consideration, but was void only as to the interest. The note was made for the purpose of being sold to the then holder of the substituted note, and, if he had acquired it with knowledge of the facts, it would have been void only for the excess above the sum paid by him for it.
In 8 Corpus Juris, at page 444, § 658, the principle is stated broadly that "as between the original parties, and as against transferees who are not bona fide purchasers for value, a renewal note is open to all defenses which might have been made against the original note, at least in so far as they relate to consideration, such as want or failure of consideration, fraud, usury, gambling debts, or other illegality." And, continuing, the same authority further states the rule as to defenses cured by renewals to be: "However, where the defense is such that it can be and is cured by the renewal it cannot be urged. Thus, one who gives a note in renewal of another note, with knowledge at the time of a partial failure of the consideration for the original note, or of false representations by the payee, etc., waives such defense and cannot set it up to defeat or to reduce a recovery on the renewal note." Holczstein et al. v. Bessemer Trust
Savings Bank, 223 Ala. 271, 136 So. 409.
In Daniel on Negotiable Instruments, vol. 1 (6th Ed.) page 300, at section 205, the principle is thus stated: "An agreement to renew a bill or note is not valid unless upon consideration; the surrender and cancellation of a valid and enforceable obligation, however, is generally considered a sufficient consideration for the execution of a renewal note, and when the first note was without consideration, a renewal note is also."
Our own court, in the case of Cochran v. Perkins, 146 Ala. 689,40 So. 351, has committed itself to the proposition that, if the original note was without consideration, a renewal of such a note would be likewise without consideration. And this conclusion finds support in the Holczstein Case, supra.
Thus it follows that, where the original note was without consideration, any renewal thereof would be without consideration, and as between the original parties the renewal note would be subject to the same defenses as the original note.
The vice of the charge under consideration lies in the fact that the jury is instructed that the giving of a renewal note for the original note would preclude the defendants from making the defense of want of consideration as well as of failure of consideration.
The charge, therefore, in our opinion, was bad, in that it precluded the defendants by giving the second note from setting up as a defense that the first note was without consideration, but, as the evidence shows that at best there was a mere partial failure, *Page 65
and not a want of consideration, the giving of the charge was error without injury. We will not therefore reverse the trial court for the giving of said charge.
It is next insisted by appellants that the court committed reversible error in giving charge C, at the request, in writing, of the plaintiffs. This charge was: "The burden of proof rests upon defendant to reasonably satisfy you from the evidence the truth of each of their special pleas."
It will be noticed that this charge only deals with the question of burden of proof, nothing else. The burden of establishing to the reasonable satisfaction of the jury the special pleas was upon the defendants. If the defendants conceived that the charge was misleading, they should have asked an explanatory charge. This was not done.
It is next insisted that the court committed error in rendering judgment against defendants and sureties, on the bond given to procure dissolution of the garnishment, in excess of the indebtedness of the garnishee to the defendants. The garnishee by his answer admitted indebtedness to the amount of $900.76 at the time of his answer. The defendants by their bond secured the dissolution of the garnishment. Under the bond, they, the defendants and sureties, were liable for the payment of the $900.76 and cost of the garnishment suit, Code, § 8063, but not for interest on said $900.76. In charging the defendants and sureties with the interest on said sum, the court committed error. The judgment rendered on the dissolution bond will be here corrected by deducting the interest item of $41.24, reducing this judgment to $900.76 and cost. Of course, when his amount is paid to plaintiffs, the same shall be payment, pro tanto, of the original judgment against defendants.
As corrected herein, both judgments will be here affirmed. Let the appellees pay all cost of appeal.
Corrected, and, as corrected, affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3986661/ | I agree with the prevailing view that the court did not err in admitting in evidence the money found in possession of the defendant; and I also concur in the holding that the evidence was sufficient to support the verdict.
As to the third point, I also feel constrained to concur with the majority, especially in view of the recent case of State v.Hall, 105 Utah 162, 145 P.2d 494. As pointed out in the prevailing opinion, this court has repeatedly held that it is error to instruct the jury upon the elements of a prima facie case.
As observed in the prevailing opinion, Section 103-36-1, U.C.A. 1943, insofar as it sets forth the facts necessary to make a prima facie case, is for the guidance of the court. The jury is not concerned with what constitutes a prima facie case. The elements upon which the jury should be instructed are not the elements of a prima facie case of larceny, but the elements which constitute the crime of larceny.
Unfortunately there is some language in the case of State v.Hall, 105 Utah 162, 145 P.2d 494, 500, which seems to approve an instruction similar to the one given here. That language is out of harmony with the other decisions of this court, and should not be followed by trial courts in preparing their instructions.
With the majority, I agree that the instruction though erroneous, was not preduicial. Had the defendant offered any clear and direct evidence of alibi, or any other substantial evidence pointing to another as the culprit, I should *Page 212
be inclined to hold otherwise. In such a case, an erroneous instruction such as that given here, might be the very factor which would tip the scales in favor of the State. But the most that can be said for the case made by the defendant is that it shows a bare physical possibility that some one other than defendant might have committed the crime. On the evidence in the record, and in view of the other instructions of the court, which were quite favorable to the defendant, I am unable to say that the instruction complained of, though erroneous, was prejudicial. I therefor concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3860653/ | Argued December 12, 1944.
This is an appeal by defendants from a final decree of the court below granting a mandatory injunction.
Plaintiffs allege in their bill of complaint that defendants (husband and wife), as upper adjoining property owners, repeatedly dumped dirt onto plaintiffs' land without warrant and after notice to refrain. The prayer of the bill was for a preliminary injunction and for a mandatory injunction requiring defendants to build a retaining wall, to remove the dirt wrongfully dumped, and to restore plaintiffs' property to its original condition. Defendants filed an answer. Defendants, in filling in their own property so as to bring it up to the grade of the street and in order to build a driveway to their garage in the rear, dumped dirt along the side of plaintiffs' garage for a distance of 16 feet, a width of 6 feet, and a depth of 3 feet, and also in the rear of plaintiffs' property covering an area approximately 35 feet wide by 60 feet long and to a depth of 15 feet. The terraces and shrubbery on plaintiffs' land were covered, and, as a result of the fill on defendants' property *Page 145
without providing a retaining wall, dirt washes down on plaintiffs' property during rain storms.
The chancellor held that plaintiffs were entitled to relief. Defendants' exceptions were dismissed, and the chancellor's findings of fact and conclusions of law were approved by the court in banc. See Malanchuk et al. v. St. Mary's Greek CatholicChurch of McKees Rocks et al., 336 Pa. 385, 396, 9 A.2d 350.
Defendants assert that under the facts plaintiffs were not entitled to a mandatory injunction; that, in any event, a mandatory injunction could not be granted against the wife defendant; and that the chancellor should have found that the dirt dumped on plaintiffs' land was in accordance with an oral agreement.
Defendants' first contention is that plaintiffs are not entitled to any equitable relief.
In Bank of Virginia v. Adams, 1 Pars. Eq. Cas. 534, 541, it was said: "But to induce equity to refuse its aid to a suitor, it is not sufficient that lie may have some remedy at law. An existing remedy at law, to induce equity to decline the exercise of its jurisdiction in favor of a suitor, must be an adequate and complete one. And where, from the nature and complications of a given case, its justice can best be reached by means of the flexible machinery of a Court of Equity, in short, where a full, perfect, and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice." This statement of the rule as to equity jurisdiction has been repeated in Pennsylvania Railroad Co. v. Bogert, 209 Pa. 589, 601,59 A. 100, 105, and in Ramsey v. Ramsey, 351 Pa. 413, 41 A.2d 559.
Equity is the special forum for relief where there has been a trespass or nuisance of a continuing and permanent character.Gray v. Philadelphia Reading Coal Iron Co. et al., 286 Pa. 11,16, 132 A. 820. The resulting injury caused by defendants' wrongful conduct interferes with the ordinary use of plaintiffs' property. Pennsylvania Co. for Insurances on Lives and *Page 146 Granting Annuities et al. v. Sun Company, 290 Pa. 404, 409,138 A. 909. In the improvement of their own property defendants have actually appropriated a portion of plaintiffs' land. A mandatory injunction to prevent the wrongful invasion of plaintiffs' right to the use of their property is proper. Dodson v. Brown, 70 Pa. Super. 359; McCabe v. Watt (No. 1), 224 Pa. 253, 256,73 A. 453; Baugh v. Bergdoll, 227 Pa. 420, 76 A. 207. Notice to refrain from dumping dirt on plaintiffs' land was disregarded and continued notwithstanding assurances to the contrary. These findings of fact were fully supported by the evidence. Besides, no right having been shown, the acts of defendants appear to have been wilful. See Bright v. Allan, 203 Pa. 394, 400, 53 A. 251.
Defendants' second contention is that the mandatory injunction should not have been directed against wife defendant. In support of this position defendants assert that there is no evidence to indicate that wife defendant participated in the wrongful acts. Although the wife defendant owned the land in question, she did not testify. However, she knew that her husband was building a house on her land, and that a fill was being made. Certainly she knew what was going on. In her answer she relied upon the alleged oral agreement between her husband and plaintiffs as to the filling in of both properties. The chancellor specifically found, and the finding was affirmed by the court in banc, that the husband defendant was acting for himself and for his wife, the other defendant. The evidence was sufficient to support the finding. The injunction against both defendants was proper. SeeMiller v. McGowan, 29 Pa. Super. 71; Olenik v. Pompeo,81 Pa. Super. 497.
Finally defendants contend that the burden of proof was upon plaintiffs to establish that defendants dumped the dirt upon plaintiffs' land without their consent, and that in this respect they failed. The chancellor refused *Page 147
to find, as defendants requested, that there was an oral agreement as defendants alleged. The existence of such an agreement was denied. It was the position of the chancellor that there was no credible testimony to support such finding. A chancellor is not bound to accept the testimony of witnesses as true even though it is uncontradicted. Sweigart v. Burkholder etal., 154 Pa. Super. 424, 427, 36 A.2d 181. It was established and so found that defendants acted contrary to express notice by plaintiffs and in violation of assurances given.
The decree of the court below is affirmed, at the cost of defendants. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3861920/ | Argued December 13, 1944.
We are all of the opinion that this case does not present an occasion when a court, though adopting the findings of a jury, is justified in setting aside the will of a testator.
Clara Morrish died on May 15, 1943. On appeal from the probate of her will dated February 19, 1943, the judge specially presiding in the lower court submitted an issue devisavit vel non to a jury empaneled in the orphans' court under the Act of July 1, 1937, P.L. 2665, 20 PS 2585. At the trial the request of proponents of the will for a directed verdict was declined and the jury in answer to questions submitted by the trial judge made special findings to this effect: That testatrix when she made her will did not have testamentary capacity, and that the will was
induced "by undue influence, practiced upon her." On proponents' motion for judgment n.o.v. the trial judge, expressing more than doubt as to the sufficiency of the proof of incapacity, approved the finding of duress, and on that ground entered judgment on the verdict and set the will aside. Distribution of the estate was ordered under the intestate laws, with the exception of two bequests, one to a church and the other to a cemetery, which were considered effective because they had appeared in a prior will. The form of the order is unimportant in the light of our conclusion that the will is valid as a whole.
There is nothing in the Orphans' Court Act or in its amendments which disturbs the established practice *Page 397
of a hearing before a judge of the orphans' court to determine preliminarily, whether there is a substantial dispute as to the status of the will, raising an appropriate issue for a jury. There was no separate hearing in this case. The jury was sworn and the testimony was heard by the judge as chancellor (Geist'sEstate, 325 Pa. 401, 191 A. 29) and by the jury at the same time. At the close of the proofs the questions of testamentary capacity and undue influence were submitted to them.
When issues in a contested will case are sent for trial to the common pleas under § 21 (a) or (b) of the Orphans' Court Act of 1917, 20 PS 2581, 2582, the facts found by the jury must be accepted by the orphans' court as conclusively established, so long as the verdict of the jury stands undisturbed. Cross'sEstate, 278 Pa. 170, 122 A. 267; Tranor's Estate, 324 Pa. 263,188 A. 292. Subsection (d) of the 1937 amendment was an addition to § 21 of the act and did not interfere with the power of the orphans' court to certify issues to the common pleas. The amendment was intended merely to supply an alternate method, at the choice of the court, of obtaining a verdict of a jury on substantial issues in dispute. The judgment on a verdict of a jury in the orphans' court, also, is conclusive on the court unless set aside. The 1937 amendment provides: "The entry of judgments in such cases shall have the same force and effect and be subject to appeals in the same manner as appeals in like cases are now taken in the common pleas courts from judgments on issues certified by the orphans' court, except that only one appeal shall be taken and that from the final decree of the orphans' court, upon which appeal all alleged errors may be assigned, whether arising in the jury trial or otherwise."
It is still the duty of a judge to refuse to present a question to a jury, either in the common pleas or the *Page 398
orphans' court, "unless he feels the ends of justice call for a verdict against the will, or he is so uncertain on this point that he could conscionably sustain a finding either way on one or more of the controlling issues involved": Mark's Est., 298 Pa. 285,148 A. 297; DeLaurentiis's Est., 323 Pa. 70, 186 A. 359. Once the dispute is submitted to a jury, the power of the chancellor himself to decide the issues in the exercise of his reasonable discretion (Hile's Estate, 310 Pa. 541, 166 A. 575) is at an end.
The provision of § 21 (b) that "the facts established by the verdict returned shall not be reexamined in any appeal" (stemming back to the Act of March 15, 1832, P.L. 135) is in furtherance of the principle that the finding of facts by a jury are not advisory merely. Cross's Estate, supra. The orphans' court could not, therefore, nor may we, reexamine the facts and set aside the findings whether in agreement with them or not if they are supported by the evidence. But the question whether the evidence, in the light of the verdict, is sufficient to sustain the findings is a question of law reviewable in an appeal on motion for judgment n.o.v. The Act of April 22, 1905, P.L. 286, 12 PS 681 is equally applicable to trials by jury in the orphans' court as in the common pleas.
Decedent at the time of her death was 75 years old and was unmarried. In the will in question she ignored her nephews and nieces (her next of kin), and, subject to the payment of her debts, gave $200 to a church, $100 to a cemetery, and $300 to Alderfer Home where she had been cared for shortly before her death. The entire residue and remainder of her estate she bequeathed to Irvin D. Kratz and Carrie Waldecker, in equal shares. Neither of them was related to her.
On the question of her capacity, there is testimony that testatrix had been failing for some time prior to her death, physically as well as mentally with signs of senility. At times she was forgetful, timid, and mentally *Page 399
confused. But she had recently sold her house and she knew the sale price — almost her entire estate — and that the proceeds had been deposited in her name in two savings accounts in a bank. Up to the time when the will was made it was physical disability and not mental weakness which prevented her from transacting her other small business affairs; her conversations were intelligent and letters written by her, the last in March 1943, were coherent. We agree that this will may not be set aside for lack of testamentary capacity. Cf. Brennan's Estate, 312 Pa. 335,168 A. 25; Olshefski's Estate, 337 Pa. 420, 11 A.2d 487. The presumption of testamentary capacity has not been overcome; on the contrary it has been established that testatrix was mentally capable.
The testimony of undue influence also is insufficient to upset the will. Decedent lived alone and earned her own living. Both of the residuary legatees had been kind to her not only during her decline but over a long period. Mrs. Waldecker had been a friend for twenty-five years and had performed many small friendly services. She and decedent had worked together in the same employment and they had interests in common. Kratz was a real estate dealer who for more than fifteen years had collected the rents from tenants in the house owned by testatrix. He was entrusted with the custody of a former will which she had made. After she become physically helpless in January 1943 he, but always at her requests, arranged for withdrawals from her bank accounts and paid her bills for her. The few withdrawal orders signed by her never exceeded in amount the bills which he paid. She was moved to the Alderfer Home, a private home for the aged and for convalescents, on February 3, 1943. She then decided to sell her home and Kratz found a purchaser. He charged her no more than the usual commission. While at the Alderfer Home she decided to change her will. She discussed with Kratz a suggestion made to her by the Alderfers *Page 400
that she loan them the proceeds of sale of her home and make them the beneficiaries of her entire residuary estate in satisfaction of the loan. His reaction was that a bequest of not more than $300 would be adequate and advised her to keep her money for her own use. This was good advice and would not be evidence of undue influence from any source. Later, decedent sent for Kratz and told him to bring her old will with him. At her suggestion he noted changes in the margin of the former will and arranged with a lawyer to draw a new will embodying the bequests directed by her. When prepared, Kratz took the will to the Alderfer Home. He gave it to two of decedent's friends and asked them to go to her room and read the will to her. After hearing it read she approved the will as drawn; Kratz was then summoned and he was present only at its execution; her two friends signed as witnesses. Decedent died shortly thereafter; her death was hastened by a subsequent broken hip in a fall. Pneumonia was the immediate cause of death.
We are of the opinion that the testimony is insufficient to establish that the relationship between Kratz and testatrix was confidential in a legal sense. Aside from collecting her rents and selling her home which were purely business transactions, the small service of paying her few bills for her might have been performed by any person of her acquaintance. And though the fact that she gave her prior will, and possibly her bank books to him for safe keeping, indicates she had confidence in him, yet it does not establish that the relation between them was confidential. A confidential relationship does not exist as a matter of law between real estate agent and client and in our view the evidence did not raise an issue for the jury as to its existence in this case. Intimate contact between Kratz and testatrix aside from purely business transactions related to small friendly acts which he was asked to perform. He was not entrusted with supervising her affairs and as far *Page 401
as the evidence goes his advice was not sought except in the one instance above noted. And giving due weight to the testimony of impaired mental or physical capacity we are of the opinion that the evidence is insufficient to shift the burden upon proponents of proving that testatrix was not unduly influenced in making her will. The charge is rebutted by the circumstances and the testimony establishes no more than the opportunity for Kratz to attempt to exert influence; in our view it does not raise a suspicion that he did. Evidence of weakness of mind is not sufficient, without more, to make out even a prima facie case of undue influence. Cookson's Estate, 325 Pa. 81, 188 A. 904. There in no suggestion from the evidence that Mrs. Waldecker influenced testatrix in any degree.
"In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind . . . . . . fraud or threats or . . . . . . physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of the will": Phillips' Est., 244 Pa. 35,90 A. 457; Geho's Estate, 340 Pa. 412, 17 A.2d 342; CressmanEstate, 346 Pa. 400, 31 A.2d 109. A number of cases, where the evidence was found insufficient to establish duress, have factual elements in common with the present appeal, among them, Keen'sEstate, 299 Pa. 430, 149 A. 737; Miller's Estate, 265 Pa. 315,108 A. 616; Mark's Estate, supra.
Decree reversed; judgment is entered in favor of proponents n.o.v.; the petition for an issue devisavit vel non is dismissed and the probate reinstated at the costs of the estate. *Page 402 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3848516/ | Argued April 20, 1932.
In the adjudication of the estate of Thomas J. Cancelmo, a claim was presented by the Citizens Bank *Page 181
Trust Company of Tampa, Florida, on two promissory notes aggregating $35,000, payment of which it was alleged by the claimant has been guaranteed to it in writing by Cancelmo in his lifetime. The court below allowed the claim and this appeal follows.
The controverted question is the scope of the contract of guaranty, which admittedly the decedent, with others, signed. It reads, omitting the immaterial parts: "That for and in consideration of the sum of one dollar to each of us in hand paid by the Citizens Bank and Trust Company of Tampa, Florida, . . . . . . and in further consideration that loans and advances hereinafter referred to are being and are to be madeat our request, we, the undersigned stockholders and officers
of the Growers Sales Company, Inc. . . . . . . do, jointly and severally, hereby guarantee to the said Citizens Bank and Trust Company the payment at maturity of any and all sums which the said Citizens Bank and Trust Company may lend or advance to the said Growers Sales Company or which the Growers Sales Company may in any way owe to the Citizens Bank and Trust Company by reason of indorsements, acceptances, over-drafts, drafts, or in any other way whatever, up to and not exceeding, the sum of . . . . . . $35,000.00. It being understood that this guarantee isa continuing guarantee covering all sums borrowed prior to May 31, 1927, and is to guarantee to the Citizens Bank and Trust Company the payment at maturity of any indebtedness which said Growers Sales Company may owe to said bank, but not to exceed at any time the said sum of $35,000.00." (The italics above and below are the writer's.)
The appellants advance three propositions to confute the decision of the court below: (1) That the undertaking of the decedent was a guaranty of borrowed sums "at maturity" without any provision authorizing renewal of notes, and as the bank surrendered the principal debtor's notes and accepted renewal notes without the knowledge or consent of the surety, the time of payment *Page 182
was thereby extended and the surety was discharged. (2) That the guaranty contains no specific provision covering preëxisting debts and hence the surety was not liable for such a debt evidenced by a note not yet matured, which note the bank by arrangement with the principal debtor, and without the knowledge or consent of the surety, surrendered to the principal debtor, taking a new note so as to bring it within the guaranty. (3) That the bank having in its possession a note payable to the principal debtor, failed to collect it, and permitted it to be barred by the statute of limitations, and hence the estate of the decedent is entitled to credit for the amount of this note.
The main issue is the first one, that the guaranty covered only notes as they matured, not renewals. The auditing judge so concluded, but the court in banc determined otherwise. We are of opinion that the decision of the court in banc was correct.
If the words "at maturity" are alone looked at and emphasized, appellant's position is a very strong one. That, however, is not the way to view the undertaking of guaranty. All its language must be considered: Knickerbocker Trust Co. v. Ryan, 227 Pa. 245, 250; Orth v. Board of Education, 272 Pa. 411,415; Nick v. Craig, 301 Pa. 50; Randal v. Jersey Mortgage Inv. Co., 306 Pa. 1. When this is done, the words "at maturity" no more stand out from the paper than do certain other of its provisions such as "loans and advances are being and are to bemade at our request," "hereby guarantee the payment at maturity of any and all sums which the [bank] may lend or which the [company] may in any way owe to the [bank] by reason of indorsements, acceptances, overdrafts [to which the words 'at maturity' could not apply in the way appellants would use them], drafts, or in any other way whatever. This guarantee isa continuing guarantee covering all sums borrowed." When all these clauses are taken into account, the words "payment at maturity" mean, not as appellants contend, *Page 183
the guarantee of the payment of each individual note as it matures, with the implied interdiction of renewals, but the payment of the entire indebtedness due the bank by the corporation when the bank demanded its payment provided it was due, up to the limit set forth in the agreement. We think the argument of appellants as to their decedent's rights and standing as a surety is pitched upon the principles which apply to sureties who are strangers in interest to the matter which they guarantee, and whose only relation to it is that of suretyship. Here, the decedent was not simply a surety, but he had a personal interest in the company whose obligations he was guaranteeing since he was one of its officers and stockholders. The law is not so tender to him as to one who was not being personally obliged by the loan of the bank's money: Richardson v. Draper, 87 N.Y. 337, 347; Matchett v. Winona Assembly,185 Ind. 128, 113 N.E. 1, 4; First Nat. Bank v. Livermore,90 Kan. 395, 133 P. 734 (47 L.R.A., N. S. 274). This is but a further application of the well-known principle that the rule of strict construction is to be applied only in favor of a gratuitous surety and not a compensated surety: Young v. American Bonding Co., 228 Pa. 373; Methodist Epis. Church of Franklin v. Equitable Surety Co., 269 Pa. 411; 50 Corpus Juris, pages 78 et seq.
The guaranty is dated the blank day of August, 1926. Contemporaneously with or immediately subsequent to its execution, on August 18, 1926, the bank took from the corporation two notes at ninety days, one for $25,000 and the other for $10,000. The bank did not require payment of these notes on their due date, but, without notice to or knowledge of the decedent, surrendered them to the corporation and accepted renewals of them maturing February 14, 1927. The decedent died January 14, 1927. Following his death the notes were twice again renewed by notes which came due on June 14, 1927. It is these last notes upon which claim is made. *Page 184
Appellants call to our attention the familiar principle last invoked by us in Yubas v. Makransky, 300 Pa. 507, that the obligation of a surety cannot be extended, by implication, beyond the terms of his contract. We do not intend to place limitations upon this rule where the circumstances call for its application, but here in our view the obligation of the surety is within the terms of the contract he executed when its complete text is brought into view. In Phœnix Brewing Co. v. Rumbarger, 181 Pa. 251, the surety was held liable on a bond conditioned for payment by the principal of all accounts in a course of dealing between him and plaintiff "when and as often as the same may fall due, or when thereunto legally required," after the principal had extended the time of payment by giving his creditor judgment notes for the amounts then due. See also 50 Corpus Juris, page 136, section 225 ("Principal and Surety"). Moreover even on appellants' restricted construction, much could be said in favor of the proposition that "payment at maturity" means actual payment of the indebtedness due the bank, not conditional payment. "Payment in commercial paper constitutes only conditional payment, and since conditional payment does not discharge the original indebtedness, it does not discharge the surety for such indebtedness:" DeRoy's Est.,305 Pa. 541, 544, and authorities therein cited. Much reliance as sustaining their position is placed by appellants on American Trust Co. v. Louderback, 220 Pa. 197, where the language in the recital and condition of the bond was to protect the obligee "from all loss . . . . . . by reason of the nonpayment at maturity of any commercial paper made or endorsed by Samuel K. Reichner" and where we held that the renewal notes were not covered. In the contract now being considered the language is much broader and more embracing.
We now come to appellants' second position, that the guaranty contains no specific provision covering preëxisting debts and hence the surety was not liable for such *Page 185
a debt evidenced by a note not yet matured, which note the bank, by arrangement with the principal debtor, and without the knowledge or consent of the surety, surrendered to the principal debtor, taking a new note so as to bring it within the guaranty. When account is taken of the fact that the note in question, together with the other note for $25,000 makes up the exact amount covered by the guaranty, the record would have to be clearer than it is in order to reach the conclusion that the $10,000 note was not covered by the contract. Again referring to its language, we see it says "loans are being and are to be made at our request." Certainly "are being made" may refer to existing loans. Further it says that the signers "guarantee the payment of any and all sums which [the corporation] may in any way owe to [the bank] up to the sum of $35,000.00. [This guarantee] is a continuing guarantee coveringall sums borrowed prior to May 31, 1927, [the note in question was given prior to that date] and is to guarantee the payment of any indebtedness which the company may owe to said bank" not exceeding the amount named. It cannot be convincingly argued that this language does not cover the obligation now in question. The auditing judge found that the $10,000 note was not a substituted one, but a new obligation for a new debt. We might well rest our conclusion on this finding, but have preferred to meet appellants' position as they have advanced it.
This brings us to the third and last question raised by appellants growing out of the facts that the appellee bank had in its possession a note for $2,500 payable to the Growers Sales Company and did not collect it, but, so it is alleged, permitted it to be barred by the statute of limitations. Appellants claim they are entitled to credit to the amount of this note. It was made by I. Cohen Sons, endorsed by the Growers Sales Company and delivered by it to the appellee as general collateral for the $35,000 loan. When delivered to appellee, it was overdue. The bank did not proceed at law for its collection, *Page 186
because its information was that the makers were without resources and it was not willing to put up the money necessary for attorney fees and the expenses of suit. As we understand the situation, however, suit has now been begun by the appellants or some one acting in their behalf to collect it from the makers in Pittsburgh where they reside. There is no testimony upon which it can be found that any loss has resulted from the delay in bringing suit. Appellants took no action and requested none by the appellee for a considerable period after they knew of the note. Furthermore, it appears that the note was tendered by the bank to Edwards, another of the guarantors, for such action as he might desire to take. In addition to this, it is still unknown whether the note is barred by the statute of limitations, depending on whether it is an obligation covered by the law of Florida, where the limitation is five years, or of this State, where it is six.
The decree is affirmed at appellants' cost. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3858097/ | Argued May 3, 1932.
This is an action of assumpsit to recover damages for breach of a contract. The court below sustained questions of law raised by defendant, and entered judgment in its favor.
The plaintiff alleges that he is entitled to recover certain monthly payments provided for in the following letter:
"August 31, 1927.
"Mr. Wm. F. Langer,
"Dear Sir:
"As you are retiring from active duty with this company, as superintendent of the annealing department, on August 31st, we hope that it will give you some pleasure to receive this official letter of commendation for your long and faithful service with the Superior Steel Corporation.
"The directors have decided that you will receive a pension of $100 per month as long as you live and preserve your present attitude of loyalty to the company and its officers and are not employed in any competitive occupation. We sincerely hope that you will live long to enjoy it and that this and the other evidences of the esteem in which you are held by your fellow employees and which you will today receive *Page 582
with this letter, will please you as much as it does us to bestow them.
"Cordially yours,
"(Signed) Frank R. Frost,
"President."
The defendant paid the sum of $100 a month for approximately four years when the plaintiff was notified that the company no longer intended to continue the payments.
The issue raised by the affidavit of defense is whether the letter created a gratuitous promise or an enforceable contract. It is frequently a matter of great difficulty to differentiate between promises creating legal obligations and mere gratuitous agreements. Each case depends to a degree upon its peculiar facts and circumstances. Was this promise supported by a sufficient consideration, or was it but a condition attached to a gift? If a contract was created, it was based on a consideration, and must have been the result of an agreement bargained for in exchange for a promise: Kirkpatrick v. Muirhead, 16 Pa. 117. It was held in Presbyterian Board of Foreign Missions v. Smith, 209. Pa. 361, 363, that "a test of good consideration is whether the promisee at the instance of the promisor, has done, forborne or undertaken to do anything real, or whether he has suffered any detriment or whether in return for the promise he has done something that he was not bound to do or has promised to do some act or has abstained from doing something." Mr. Justice SADLER pointed out in York M. Alloys Co. v. Cyclops S. Co., 280 Pa. 585, that a good consideration exists if one refrains from doing anything that he has a right to do, "whether there is any actual loss or detriment to him or actual benefit to the promisor or not."
The learned court below held that there was not a sufficient consideration as the plaintiff was not bound to refrain from taking other employment, or continuing *Page 583
his loyalty to the defendant. That he had the alternative of receiving the monthly payment or endeavoring to seek other employment does not determine the existence or non-existence of a consideration. But an agreement is not invalid for want of consideration because one party has an option while the other has not; it may be obligatory on one and optional with the other: 13 C.J. 336; York M. Alloys Co. v. Cyclops S. Co., supra.
The plaintiff, in his statement, which must be admitted as true in considering the statutory demurrer filed by defendant, alleges that he refrained from seeking employment with any competitive company, and that he complied with the terms of the agreement. By so doing, has he sustained any detriment? Was his forbearance sufficient to support a good consideration? Professor Williston, in his treatise on Contracts, sec. 112, states: "It is often difficult to determine whether words of condition in a promise indicate a request for consideration or state a mere condition in a gratuitous promise. An aid, though not a conclusive test in determining which construction of the promise is more reasonable is an inquiry whether the happening of the condition will be a benefit to the promisor. If so, it is a fair inference that the happening was requested as a consideration...... In case of doubt where the promisee has incurred a detriment on the faith of the promise, courts will naturally be loath to regard the promise as a mere gratuity, and the detriment incurred as merely a condition."
It is reasonable to conclude that it is to the advantage of the defendant if the plaintiff, who had been employed for a long period of time as its superintendent in the annealing department, and who, undoubtedly, had knowledge of the methods used by the employer, is not employed by a competitive company; otherwise, such a stipulation would have been unnecessary. That must have been the inducing reason for *Page 584
inserting that provision. There is nothing appearing of record, except the condition imposed by the defendant, that would have prevented this man of skill and experience from seeking employment elsewhere. By receiving the monthly payments, he impliedly accepted the conditions imposed and was thus restrained from doing that which he had a right to do. This was a sufficient consideration to support a contract.
The appellee refers to Kirksey v. Kirksey, 8 Ala. 131, which is also cited by Professor Williston in his work on Contracts, sec. 112, note 51, as a leading case on this subject under discussion. The defendant wrote his sister-in-law, the plaintiff: "If you will come down and see me, I will let you have a place to raise your family and I have more open land than I can tend; and on the account of your situation and that of your family, I feel like I want you and the children to do well." The plaintiff left her home and moved her family a distance of 67 miles to the residence of the defendant, who gave her the house and land, and after a period of two years, requested her to leave. The court held that the promise was a mere gratuity. In that case, as well as in Richards's Exr. v. Richards, 46 Pa. 78, there was no benefit to be derived by the promisor, as in the case at bar, and, therefore, a good consideration was lacking.
In this view, this contract is enforceable also on the theory of promissory estoppel. This principle has been stated by the American Law Institute in section 90 of the Restatement of the Law of Contracts, as follows: "A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." As we have already observed, the plaintiff was induced by the promises made to refrain from seeking other employment. A promissory *Page 585
estoppel differs from the equitable estoppel, as it rests upon a promise to do something in the future, while the latter rests upon a statement of a present fact. We have an example of the former in Ricketts v. Scothorn, 57 Neb. 51, 77 N.W. 365, where a grandfather handed his granddaughter a note for $2,000 saying, "I have fixed out something that you have not got to work any more. None of my grandchildren work and you don't have to." The grandfather did not ask his granddaughter to give up her employment, but merely promised that she would not have to work unless she wanted to. She stopped working, relying upon getting $2,000. The court admitted that there was no consideration, but enforced the promise because it had misled the promisee in such a way that it would be unfair to her to do otherwise; thereby invoking the principle of promissory estoppel. We do not mean to state that in all cases where a gratuitous promise is made, and one relies upon it, the promisee can recover, but, if a detriment of a definite and substantial character has been incurred by the promisee, then the court may enforce the promise.
Judgment is reversed, and the defendant is hereby given permission to file an affidavit of defense to the merits of the plaintiff's claim. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714784/ | 567 N.W.2d 692 (1997)
223 Mich. App. 576
SCHOLASTIC BOOK CLUBS, INC., Plaintiff-Appellee,
v.
STATE of Michigan, DEPARTMENT OF TREASURY, REVENUE DIVISION, State Treasurer, and Revenue Commissioner, Defendants-Appellants.
Docket No. 189386.
Court of Appeals of Michigan.
Submitted December 3, 1996, at Detroit.
Decided May 20, 1997, at 9:05 a.m.
Released for Publication August 22, 1997.
*693 Brann & Isaacson by George S. Isaacson and David W. Bertoni, Lewiston, ME, and Weisman, Trogan, Young & Schloss, P.C. by Anthony V. Trogan, Bingham Farms, for plaintiff-appellee.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Kevin T. Smith, Assistant Attorney General, for defendants-appellants.
Before MacKENZIE, P.J., and WAHLS and MARKEY, JJ.
MacKENZIE, Presiding Judge.
Defendants appeal as of right from an order granting plaintiff's motion for summary disposition pursuant to MCR 2.116(A) and holding that defendants could not impose use tax collection and remittance obligations on plaintiff. We affirm.
Plaintiff is a Missouri-based company that sells books and other materials to schoolchildren throughout the United States. The parties' statement of stipulated facts establishes that plaintiff mails catalogs to teachers, who are under no obligation to order any merchandise or to obtain orders from students. If a teacher or any of the teacher's students decides to order something, the teacher enters the order for the student and submits it to plaintiff with payment. The books are then delivered to the teacher, who distributes them to the students who have ordered. As a promotional program, plaintiff awards "bonus points" based on the amount of goods purchased. These points may be redeemed for additional books or materials that are typically used to supply classroom libraries or to provide books to low-income families. Plaintiff neither owns nor leases any real property in this state, and it has no employees or independent contractors in this state. Additionally, absent the role that Michigan school teachers play in marketing plaintiff's goods, plaintiff has never availed itself of any state or local services in Michigan.
Plaintiff instituted this declaratory judgment action after defendant Department of Treasury informed plaintiff that it was required to remit use taxes on the books sold to Michigan purchasers. Plaintiff contended that imposition of the use tax was a violation of the Commerce Clause of the United States Constitution, U.S. Const., art. I, § 8, because plaintiff did not have a substantial, continuing physical presence in Michigan. The trial court agreed, concluding that plaintiff's use of teachers to distribute its materials did not provide a sufficient presence for this state to impose use taxes on plaintiff.
Unlike the sales tax, which is a tax imposed upon sellers for the privilege of engaging in the business of making sales of tangible personal property at retail within this state, World Book, Inc. v. Dep't of Treasury, 222 Mich.App. 203, 205, 564 N.W.2d 82 (1997), the use tax is an excise tax imposed for the "privilege of using, storing, or consuming tangible personal property in the state." M.C.L. § 205.93(1); M.S.A. § 7.555(3)(1). The legal incidence of the use tax falls upon the consumer or purchaser who buys personal property outside this *694 state for use in Michigan, but the out-of-state seller is responsible for the collection of the tax. World Book, supra, p. 206, 564 N.W.2d 82.
Section 4(b) of the Use Tax Act exempts from taxation "[p]roperty, the storage, use, or other consumption of which, this state is prohibited from taxing under the constitution or laws of the United States, or under the constitution of this state." M.C.L. § 205.94(b); M.S.A. § 7.555(4)(b). To determine whether plaintiff is exempt from collecting the use tax under § 4(b), it must be determined whether imposition of the tax violates the Commerce Clause, which forbids the burdening of interstate commerce or its essential instrumentalities through taxation. Kellogg Co. v. Dep't of Treasury, 204 Mich.App. 489, 493-494, 516 N.W.2d 108 (1994). Faced with a Commerce Clause challenge, courts will sustain the imposition of the use tax when four factors, derived from Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977), are satisfied. Kellogg Co., supra, pp. 493-494, 516 N.W.2d 108; Guardian Industries Corp. v. Dep't of Treasury, 198 Mich.App. 363, 376, 499 N.W.2d 349 (1993). The four Complete Auto factors are: (1) the activity taxed must have a substantial nexus to the taxing state, (2) the tax must be fairly apportioned, (3) it may not discriminate against interstate commerce, and (4) it must be fairly related to services provided by the taxing state. Kellogg, supra, p. 495, 516 N.W.2d 108; Guardian Industries, supra, p. 376, 499 N.W.2d 349.
This case involves the first Complete Auto factor, that is, whether plaintiff's activities are sufficient to establish a substantial nexus with Michigan. It is well established that an out-of-state vendor whose only contacts with the taxing state are by mail or common carrier, or whose business activity is limited to the mere solicitation of sales, lacks the substantial nexus required by the Commerce Clause. See Guardian Industries, supra, p. 376, 499 N.W.2d 349; Nat'l Bellas Hess, Inc. v. Dep't of Revenue of Illinois, 386 U.S. 753, 757, 87 S. Ct. 1389, 1391-92, 18 L. Ed. 2d 505 (1967). In Quill Corp. v. North Dakota, 504 U.S. 298, 112 S. Ct. 1904, 119 L. Ed. 2d 91 (1992), the Court refused to renounce the Bellas Hess "bright-line, physical presence requirement," 504 U.S. at 317, 112 S.Ct. at 1916, and held that an out-of-state vendor must have some "physical presence" in the taxing state to establish a substantial nexus with it. The Court recognized that a substantial nexus may be created by the presence of a small sales force, plant, or office within the state. Because the business in Quill had no physical presence in the taxing state, North Dakota, the Court found that that state's imposition of the use tax on goods sold to North Dakota residents violated the Commerce Clause. See Guardian, supra, pp. 376-377, 499 N.W.2d 349.
In contrast, it is also well established that the presence of salespersons who are employed by an out-of-state vendor to solicit business in the taxing state, regardless of whether they are residents of the taxing state, constitutes a sufficient nexus with that state. Guardian Industries, supra, p. 377, 499 N.W.2d 349. In Scripto, Inc. v. Carson, 362 U.S. 207, 212, 80 S. Ct. 619, 622, 4 L. Ed. 2d 660 (1960), the Supreme Court extended this concept to include a situation where the out-of-state vendor retained parttime, nonexclusive wholesalers, or "jobbers," to market their products in the taxing state. The plaintiff vendor in Scripto hired independent contractors in the taxing state to take orders from customers within the state. These salespersons, who were not exclusively employed by the plaintiff, then received a commission on each sale. The Court found the fact that the workers were not formal full-time employees to be a "fine distinction... without constitutional significance." Id. at p. 211, 80 S.Ct. at pp. 621-22. Rather, the Court stated, "The test is simply the nature and extent of the activities of the [out-of-state vendor]." Id. Scripto has been recognized as the furthest extension to date of a state's power to impose use taxes against the limitations of the Commerce Clause. Bellas Hess, supra, at p. 757, 87 S.Ct. at 1391-92; Quill, supra, at p. 306, 112 S.Ct. at pp. 1909-10.
In this case, the department contends that plaintiff's use of Michigan teachers to take students' book orders and deliver ordered books constitutes a substantial nexus to, or physical presence in, Michigan. *695 Equating Michigan teachers to a sales force representing plaintiff in Michigan, the department argues that the imposition of use tax collection responsibilities on plaintiff does not violate the Commerce Clause under Quill. The issue is one of first impression in this state. Other jurisdictions that have considered the question are split with respect to whether a state's teachers provide the requisite substantial nexus or physical presence to allow the imposition of a use tax collection obligation on out-of-state vendors. We conclude that the use of teachers, without more, does not establish a substantial nexus with, or physical presence in, this state.
The department relies on Scholastic Book Clubs, Inc. v. State Bd. of Equalization, 207 Cal. App. 3d 734, 255 Cal. Rptr. 77 (1989), a case involving this plaintiff's challenge to the imposition of California's use tax on the materials it sold through California school teachers. Finding that the teachers served the same function as did the independent contractors in Scripto, the California court concluded that once the teachers undertook to act with respect to the plaintiff's products, they were acting under the plaintiff's authority. Id. at p. 737, 255 Cal. Rptr. 77. The court also noted that the plaintiff depended on the teachers "to act as its conduit to the students" and that the bonus point system was similar to the commissions given to the contractors in Scripto. Id. at p. 740, 255 Cal. Rptr. 77. By using the teachers as an intermediary, the plaintiff was "exploiting or enjoying the benefit of California schools and employees to obtain sales," id., and therefore had an obligation to pay use taxes to the State of California. The Kansas Supreme Court recently adopted the Scholastic Book Clubs analysis in In re Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 920 P.2d 947 (1996).
Plaintiff relies on Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). Like plaintiff, Troll, a New Jersey corporation, markets and sells children's books throughout the United States by mailing catalogs to teachers. Its operation is essentially identical to plaintiff's:
The catalogs instruct the teacher on how to collect student orders, how to consolidate those student orders, and how to collect the money for the orders. After collecting the student orders, the teacher fills out one master order form in his or her name and sends it to Troll....
When the books arrive, the teacher retrieves the student order forms and distributes the books accordingly. Teachers can receive cash or merchandise "bonuses," depending on the size of the order. Troll estimates its total annual sales in Arkansas at 2.7 to 3 million dollars. [ Id. at pp. 196-197, 871 S.W.2d 389.]
Unlike the California court, the Pledger court found that the State of Arkansas had failed to show the necessary authority and control for an agency relationship to exist between Troll and the teachers. Id. In reaching that conclusion, the court rejected the California court's analysis for two reasons. First, it noted that Scholastic Book Clubs, supra, was decided before the United States Supreme Court decided Quill, supra, and did not take into consideration the bright-line physical presence test for mail-order sales mandated by Quill. Pledger, supra, at p. 392. Second, the Arkansas court determined that, unlike California, Arkansas agency law does not allow agency to be implied retroactively by ratification. Id. The court therefore found that Troll did not have the requisite physical presence for the state to validly impose a use tax obligation on it. Pledger's reasoning has been adopted by the Ohio Board of Tax Appeals in Troll Book Clubs, Inc. v. Tracy, No. 92-Z590 (1994 Ohio Tax LEXIS 1374).
In this case, the Michigan teachers who receive plaintiff's catalogs are clearly not its employees. Under Michigan law, they are also not plaintiff's agents. There is no indication that Michigan teachers have the authority to bind plaintiff. Further, plaintiff has no control over the teachers; the teachers are under no obligation to participate in plaintiff's program. See Meretta v. Peach, 195 Mich.App. 695, 491 N.W.2d 278 (1992). Indeed, teachers are invited to be consumers of plaintiff's materials, just as are their students. We decline to find that plaintiff has a physical presence in this state because, unlike the situation in the California Scholastic Book Clubs case, plaintiff's mail contacts with Michigan teachers do not give rise to an agency relationship.
We also agree with the Pledger court that the requirement of Quill, supra, that an out-of-state *696 vendor have an actual physical presence in the taxing state, is not satisfied by plaintiff's contacts with Michigan teachers. The teachers are not a sales force that works for plaintiff. Rather, they are analogous to parents who order an item from a mail-order catalog for their children; no one would seriously argue that such parents are a "sales force" for mail-order vendors. As stated previously, the teachers are primarily plaintiff's customers and are under no control by, and vested with no authority to act on behalf of, plaintiff.
In the absence of plaintiff's physical presence in Michigan, the substantial nexus with this state necessary to satisfy the Commerce Clause does not exist. Because no such substantial nexus exists the department may not, under the constitution, impose upon plaintiff the obligation to collect Michigan use taxes on the goods purchased by residents of this state. We therefore affirm the decision of the trial court.
Our disposition of the above issue makes it unnecessary to address defendants' remaining claims.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3855699/ | Argued December 16, 1937.
On June 9, 1936, libellant filed his libel in divorce, alleging cruel and barbarous treatment, indignities to the person and wilful and malicious desertion, as of June 22, 1934. The libel was referred to a master, who filed a report finding that the causes of cruelty and indignities had not been sustained, but recommended that a decree be granted on the ground of desertion. Exceptions filed to the report were sustained by the court of common pleas, and from the decree, dismissing the libel, this appeal was taken.
Libellant, aged 35 years and respondent aged 40 at the date of the first hearing, were married in Philadelphia on January 30, 1926, and lived together in Philadelphia and Upper Darby until November 30, 1930, when libellant left the home. In December, 1930, the Court of Quarter Sessions of Delaware County entered an order of support of $7 per week against libellant. The parties did not meet again until March, 1931. In March, 1931, libellant called on respondent at her home in an effort to reduce the support order. They spent several nights together at respondent's and one night at libellant's home. The agreed to live together at 1410 Chestnut Street, Upper Darby, and a few days later libellant wrote to respondent stating that at any time it was convenient she should come to live with him at the above address. Respondent replied that she had turned the letter over to her lawyer. Shortly afterwards, libellant was placed in jail for failure to comply with the support order.
In March, 1931 libellant instituted divorce proceedings on the ground of cruelty and indignities. Upon *Page 145
petition of libellant, an order was made discontinuing this libel.
Sometime in the spring of 1932, libellant talked to respondent concerning her return, discussed their resumption of marital relations, and the wife agreed to return. They interviewed respondent's attorney, who was instructed to suspend the court order for one year. A few days later, they quarreled, and, according to libellant, he was told to leave her home and never come back. Libellant was again arrested and the support order reinstated. From the spring of 1932 until July, 1934, they saw each other on one occasion, and that was in court. On July 10, 1934, libellant wrote the respondent the following letter:
"Keystone Telephone Exchange, 9th and Main Sts., Darby, Pa. July 10, 1934,
Dear Evelyn,
It seems to me that both of us are making mistakes which are resulting in a terrible waste of both our lives.
Although my previous invitations to you to live together as man and wife have been refused by you, and although you have not seemed to understand that I was sincere in making the offers, I have been thinking that a great many misunderstandings could have been avoided and that if both you and I will try to reason things out sensibly and not look for double meanings in words that are said and statements that are made, we could get along together.
It would be very much more satisfactory to see you personally and discuss the matter and reach a decision; and if you are willing to see me, I shall be very glad to do so at any time and place you will suggest.
However, I am writing this letter as the best means I have to convey my thoughts to you at this time, and the purpose is to say that I am entirely willing that you and I should live together as man and wife, and you *Page 146
are welcome to come and live with me at my present address, and I am willing to secure a home, whether it be a small house or apartment, provided, of course, the same is within my means in accordance with what I earn; and I am making this as a definite offer to you to come back with me again so that we can live together as man and wife. I am willing to furnish a home which will be comfortable, but, of course, it must be one that I can afford to maintain without running into debt.
Will you please consider this a sincere offer on my part, expressed as clearly as I can in a letter, that I am willing to come with you or have you come with me and live together, and whatever other details may be necessary to be worked out can be done by both of us sitting down like two sensible people and talking the same over.
Please let me hear from you very soon as to your attitude at this time, as I shall be interested in knowing what you will wish to do.
Sincerely,
Robert R. Wilhelm."
The reply of respondent to this letter is as follows:
"July 16, 1934.
Dear Bob,
I have your registered letter of July 10th and the contents are amazingly surprising since one month ago you consulted Alice as to whether she thought I would be amicable towards getting a divorce so that you and Mrs. Reibold could be married.
I never refused to cooperate with you towards getting together again even when your offers proved to be insincere. Your intentions at the last reconciliation were to live with me long enough to get out of the jurisdiction of the Media Courts, then leave again.
Your attitude, both before you left our apartment at Stonehurst Hills and on several occasions since then, makes it impossible for me to trust you. I'm sorry.
Sincerely, Evelyn." *Page 147
From the findings of the master that the charges of cruelty and indignities had not been sustained, to which no exceptions were taken it must be assumed that libellant was not justified in separating from his wife on November 30, 1930. From this premise, to establish that the subsequent conduct of the respondent constituted wilful and malicious desertion, the burden rests upon libellant to adduce clear and satisfactory evidence of the good faith of his offer to resume the marital relation. On both occasions that libellant desired reconciliation, respondent apparently accepted his offers as being sincere, as she agreed to a suspension of the court order. Conceding that she was not justified in her abrupt refusal to continue further discussions of her return to live with him, it was rather unusual, after a complete severance of all relations, and his complete silence and indifference for two years, to attempt a reconciliation by means of the letter of July 10, 1934. There are circumstances about the letter of reconciliation which belie its seeming frankness. The letter is quite formal and studied in its manner and is hedged with careful qualifications. It was sent by registered mail and a copy of it retained by the libellant. These circumstances cast a serious doubt on libellant's sincerity and give rise to a suspicion that the letter was sent for purely evidential purposes. An offer to resume the marital status must be made in good faith. In Gordon, v. Gordon, 208 Pa. 186, 57 A. 525, it was said: "To bar the running of the term against the offending party, an offer of reconciliation or an offer to return to the injured party must be made in good faith with the desire that it be accepted and with the intention that if the reconciliation is effected the derelict party will honestly perform his whole duty as husband towards the one whom he deserted. Such an offer must to demand a decree of divorce. If, however, the offer *Page 148
to resume marital relations is not made in good faith, and with the intention to live in the relation of husband and wife, but with the view of defeating a divorce, or for any other dishonest purpose, the injured party may decline to accept it without being deprived of the right to procure a divorce after the expiration of two years from the date of the desertion." This rule applies not only to the party defending against the divorce, but also to a party seeking a divorce who attempts to establish his case by first making an offer of reconciliation. Whether the offer was made in sincerity and with a bona fide intention to perform the marital duties is a question for the court when the case is tried without a jury: McClurg's Appeal, 66 Pa. 366; Gordon v. Gordon,
supra. Moreover, whatever weight may be given libellant's letter is balanced by the respondent's reply in which she frankly states her reasons for disbelieving the sincerity of his offer of reconciliation. Reading the record as a whole, it is apparent that respondent did not trust libellant. In her reply she gave a specific reason why she did not believe him, yet he never made any effort to remove her doubts. This letter was the only contact libellant had with his wife over a period of four years prior to the filing of the libel.
In order to justify the granting of a divorce, the libellant must establish his case by clear and satisfactory evidence: Lomaxv. Lomax, 87 Pa. Super. 543; Reinhardt v. Reinhardt,111 Pa. Super. 191, 169 A. 408; Wagner v. Wagner, 112 Pa. Super. 485, 171 A. 419. Viewed in this light, we are of the opinion that the record does not establish such clear and satisfactory proof as warrants us in finding that the refusal to accept the offer of July 10, 1934, constituted a wilful and malicious desertion.
Decree affirmed. *Page 149 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3858505/ | The foregoing opinion was prepared by Judge FINE before his resignation on March 1, 1950. It is now adopted and filed as the opinion of the Court. *Page 383 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3995445/ | This is a companion case to that of State v. Johnson, ante
p. 456, 273 P. 532, and upon the authority of that case the judgment will be affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1276080/ | 957 P.2d 575 (1998)
327 Or. 76
In re Complaint as to the CONDUCT OF James B. DONOVAN, Accused.
OSB 96-172; 96-161; 96-156; 96-157; 96-159; 96-160; 96-176; 96-177; 96-178; 96-6; 97-20; 97-21; 97-22; 97-23; 97-25; 97-26; 97-27; 97-24; 97-70; 97-71; 97-62; 97-63; 97-64; 97-69; 97-94; 97-95; 97-161; 97-111; SC S43992.
Supreme Court of Oregon.
Submitted on the Record March 24, 1998.
Decided April 16, 1998.
Jane E. Angus, Assistant Disciplinary Counsel, Lake Oswego, for the Oregon State Bar.
No appearance contra.
Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, DURHAM, KULONGOSKI and LEESON, JJ.[*]
PER CURIAM.
This is a de novo review of a lawyer disciplinary proceeding. ORS 9.536; Rules of Procedure (BR) 10.1 and 10.6. On October 16, 1997, the Oregon State Bar (the Bar) filed an amended formal complaint[1] against the accused for 28 violations of Disciplinary Rule (DR) 1-102(A)(3);[2] 28 violations of DR 2-106(A);[3]*576 28 violations of DR 6-101(B);[4] 28 violations of DR 7-101(A)(2);[5] 28 violations of DR 9-101(A);[6] 1 violation of DR 9-101(C)(3);[7] 3 violations of DR 9-101(C)(4);[8] 1 violation of DR 2-110(B)(2);[9] 1 violation of DR 3-101(B);[10] 1 violation of ORS 9.160;[11] and 29 violations of DR 1-103(C).[12]
The accused filed no answer and made no other appearance regarding the amended complaint. The trial panel entered an order of default on December 18, 1997. Accordingly, we deem the allegations of the Bar's amended formal complaint to be true. BR 5.8(a); In re Bourcier, 325 Or. 429, 431, 939 P.2d 604 (1997). Because of the default and the number of charges against the accused, the Bar submitted the matter to the trial panel without a formal hearing. The trial panel found the accused guilty of all the charges and disbarred him.[13]
Under ORS 9.536(2) and BR 10.1, this court is required to review the trial panel decision. We allowed the Bar's motion to submit the matter on the record without briefing or oral argument. ORAP 11.25(3)(b). The accused made no appearance in this court.
We conclude, as did the trial panel, that recitation of the pertinent facts underlying each of the Bar's causes of complaint would not benefit the Bar or the public. Suffice it to say that, on 27 occasions before he was suspended from the practice of law, and once thereafter, the accused agreed to perform legal services, accepted a fee to perform them and failed to complete the work.
*577 The accused repeatedly failed to deposit fees that he had received in his clients' trust account and did not return fees when his clients complained to him that he had not performed the legal work for which they had retained him. Neither did the accused respond to his clients' many requests for information nor return his clients' files when they asked him to do so. The accused overdrew his clients' trust account several times, and his bank closed that account on August 16, 1996, because of "negative activity." The accused eventually closed his office without notifying his clients and left no forwarding address or telephone number. The accused never responded to the Bar's repeated inquiries regarding the many complaints that it had received from the accused's clients. The record shows, and we find, that the accused is guilty of all of the charged misconduct.
In determining the appropriate sanction for ethical misconduct, we look to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) and Oregon case law. In re Dickerson, 322 Or. 316, 324, 905 P.2d 1140 (1995). Under ABA Standard 3.0, we consider (1) the ethical duty violated, (2) the lawyer's mental state, (3) the potential or actual injury caused by the misconduct, and (4) the existence of aggravating or mitigating factors. 322 Or. at 324, 905 P.2d 1140.
The accused violated numerous ethical duties to his clients. He received several notices informing him that he was failing to perform legal work that he had agreed to perform and for which he had accepted a fee, that on many occasions he had failed to deposit client funds into a client trust account and that the bank had closed his trust account, because it was overdrawn. The accused repeatedly failed to cooperate with the Bar's inquiries and investigations. The accused's failure to complete the work he had agreed to perform caused actual injury to his clients. The record reveals numerous aggravating factors, including multiple offenses over a substantial period of time and failure to respond to or cooperate with the Bar's investigations. ABA Standard 9.22. There are no mitigating factors.
ABA Standard 4.11 provides that "[d]isbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client." Even a single act of intentional and dishonest appropriation of a client's trust funds in violation of DR 1-102(A)(3) warrants disbarment. In re Whipple, 320 Or. 476, 488, 886 P.2d 7 (1994). In this case, the accused engaged in multiple acts of intentional and dishonest appropriation of client trust funds.
Disbarment also can be appropriate when the accused fails to perform services for a client, engages in a pattern of neglect with respect to client matters, or abandons the practice of law and causes serious injury to a client. ABA Standard 4.41. The accused has demonstrated lack of diligence in all three respects, and several of his clients suffered serious injury as a consequence. See In re Sousa, 323 Or. 137, 915 P.2d 408 (1996) (attorney disbarred, among other reasons, for four violations of DR 6-101(B) and four violations of DR 1-103(C)). We need not belabor the obvious: The accused's misconduct compels disbarment.
The accused is disbarred.
NOTES
[*] Graber, J., resigned March 31, 1998, and did not participate in the decision of this case.
[1] Pursuant to BR 3.1, regarding temporary suspension during pendency of disciplinary proceedings, this court suspended the accused from the practice of law on February 20, 1997. The Bar filed its initial formal complaint against the accused on September 8, 1997.
[2] DR 1-102(A)(3) provides:
"It is professional misconduct for a lawyer to:
"Engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]"
[3] DR 2-106(A) provides:
"A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee."
[4] DR 6-101(B) provides:
"A lawyer shall not neglect a legal matter entrusted to the lawyer."
[5] DR 7-101(A)(2) provides:
"A lawyer shall not intentionally:
"Fail to carry out a contract of employment entered into with a client for professional services but the lawyer may withdraw as permitted under DR 2-110, DR 5-102 and DR 5-105."
[6] DR 9-101(A) provides, in part:
"All funds of clients paid to a lawyer or law firm, including advances for costs and expenses and escrow and other funds held by a lawyer or law firm for another in the course of work as lawyers, shall be deposited and maintained in one or more identifiable trust accounts in the state in which the law office is situated."
[7] DR 9-101(C)(3) provides, in part:
"A lawyer shall:
"Maintain complete records of all funds * * * of a client coming into the possession of the lawyer and render appropriate accounts to the lawyer's client regarding them."
[8] DR 9-101(C)(4) provides, in part:
"A lawyer shall:
"Promptly pay or deliver to a client as requested by the client the funds * * * in the possession of the lawyer which the client is entitled to receive."
[9] DR 2-110(B)(2) provides:
"A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
"The lawyer knows or it is obvious that the lawyer's continued employment will result in violation of a Disciplinary Rule."
[10] DR 3-101(B) provides:
"A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."
[11] ORS 9.160 provides:
"Except for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar."
[12] DR 1-103(C) provides:
"A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers, subject only to the exercise of any applicable right or privilege."
[13] The trial panel's opinion states that, "because of the repeated pattern of the same conduct, because of the egregious nature of the conduct of which the accused has been found guilty, and because the appropriate sanction for the misconduct of which the accused has been charged and found guilty is so obvious, no extended discussion of the various disciplinary rules is necessary nor would such a discussion serve any function here." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1715130/ | 851 So.2d 829 (2003)
Richard HOOD, Appellant,
v.
STATE of Florida, Appellee.
No. 1D03-0669.
District Court of Appeal of Florida, First District.
July 31, 2003.
Appellant, pro se.
Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The appellant challenges the trial court's denial of his motion to correct his illegal *830 sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which alleged that his sentence of imprisonment for violation of probation in case number 93-1274 is illegal because the trial court had not previously orally pronounced a term of probation in that case. Because the appellant's sentence violates double jeopardy, we reverse.
On March 14, 1995, the appellant was sentenced to five years' imprisonment on count one to be followed by five years' probation on counts two and three in case number 93-1274. On March 2, 1998, the appellant violated his probation on counts two and three in case number 93-1274 and in various other cases. At the sentencing hearing, the trial court orally pronounced the following sentence:
the Court will adjudicate you, Mr. Hood, guilty on all counts and place you in the department of corrections for a period of five years on each of the felony counts to run concurrently, followed by excuse me, not on all of them, but let's say five years in the department of corrections in all counts of 93-1274, that case, followed by five years of probation on each of the other felony counts, third degree felony counts, to run concurrently. So five years in the department of corrections on all counts, running concurrently, in 93-1274, and all of the remaining felony counts will be probation for five years following the prison sentence.
Thus, the trial court sentenced the appellant to five years' imprisonment on all counts in case number 93-1274 and to five years' probation on all other counts in all other cases. However, the appellant's written judgment and sentence stated that he was sentenced to five years' imprisonment followed by five years' probation on count one and to five years' probation with 262 days of jail credit on count two in case number 93-1274. The appellant completed his term of incarceration, but he violated his probation. On March 22, 2001, the appellant's probation was revoked and he was sentenced to another five years' imprisonment on case number 93-1274. The appellant now alleges that his March 22, 2001, sentence in case number 93-1274 violates double jeopardy because he had completed his sentence when he completed his term of incarceration.
Double jeopardy claims are cognizable under rule 3.800(a) when such errors are apparent on the record. See Hopping v. State, 708 So.2d 263, 265 (Fla. 1998); Jackson v. State, 650 So.2d 1026, 1027-28 (Fla. 1st DCA 1995); Valdes v. State, 765 So.2d 774, 776 (Fla. 1st DCA 2000). The appellant is correct that he cannot receive an additional sentence after fully satisfying his original sentence. Once the appellant's 1998 sentence to five years of incarceration was orally imposed, the trial court could not change it for a more onerous sentence, and the trial court's oral pronouncement controlled over the written sentence. See Ashley v. State, 850 So.2d 1265 (Fla.2003). Because the appellant was orally resentenced only to prison in case number 93-1274, the written judgment adding a term of probation was legally void. Consequently, the appellant could not be sentenced to a term of imprisonment for violating a term of probation that was never imposed.
We therefore reverse the trial court's summary denial of the appellant's motion to correct his illegal sentence and remand for the trial court to vacate the appellant's sentence in case number 93-1274.
REVERSED and REMANDED.
KAHN, WEBSTER and POLSTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/58858/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 4, 2008
No. 07-12022 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20072-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PIEDAD ELENA ECHAVARRIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 4, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
William N. Norris, appointed counsel for Piedad Elena Echavarria in this
direct criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967). Our independent review of the entire record reveals
counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and Echavarria’s conviction and
sentence are AFFIRMED.
2 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4240130/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00011-CV
In re Shakeel Mustafa
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
MEMORANDUM OPINION
Relator’s motion for temporary relief and petition for writ of mandamus are denied.
See Tex. R. App. P. 52.8(a).
__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Filed: January 26, 2018 | 01-03-2023 | 01-30-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1714955/ | 518 S.W.2d 234 (1974)
Charles R. BROWN, Appellant,
v.
CONSOLIDATION COAL COMPANY and Federal Insurance Company, Appellees.
Supreme Court of Tennessee.
December 16, 1974.
*235 H. Calvin Walter, Knoxville, for appellant.
W. Keith McCord, Egerton, McAfee, Armistead, Davis & McCord, Knoxville, for appellees.
OPINION
FONES, Chief Justice.
This workmen's compensation case is before us on the technical record only, the single issue being the authority of the trial judge to correct the weekly compensation rate and the amount of total benefits due the employee, Brown, for permanent total disability, upon petition of the employer filed approximately 14 months after entry of judgment.
Employee, Charles R. Brown, filed a complaint on April 29, 1971, seeking workmen's compensation benefits for the occupational disease known as coal worker's pneumonocosis. Employee alleged that he had last worked for employer, Consolidation Coal Company, on May 23, 1966, but that his occupational disease had been first diagnosed within the year preceding the filing of his bill. Employer answered, admitting that the plaintiff last worked for defendant on May 23, 1966. Other issues made by the answer are not relevant here.
The suit was partially tried in November, 1971, but leave granted employer to take and file a doctor's deposition delayed entry of the judgment until June 19, 1972. The judgment entered on that date contains a finding that the employee is entitled to permanent total disability and continues with the following recitals:
"In this case the Court further finds that complainant meets all requirements of the law as to employment, notice, etc., so as to be eligible for the foregoing award.
The Court finds that the complainant is entitled to disability benefits from the date of Dr. Swann's diagnosis, May 11, 1971, at the rate of $47.00 per week thereafter until the total of 400 weeks or *236 EIGHTEEN THOUSAND EIGHT HUNDRED ($18,800.00) DOLLARS has been paid."
On August 22, 1973, employer filed a petition seeking correction of the 1972 judgment. No responsive pleading was filed to said petition and, on December 10, 1973, the trial judge entered an order reciting that, after reviewing the record and the applicable law, and hearing argument of counsel, the Court was of the opinion that there was a mistake apparent on the face of the record, granted employer's petition and decreed a correction of the June, 1972 judgment, to reflect an award of $38.00 per week, limited to a total of $14,000.00.
Employer's petition alleges that all benefits paid to employee, to date, were at the weekly rate of $38.00; that in May of 1966, the compensation rate schedule provided for benefits of $38.00 per week, and a maximum of $14,000.00, for permanent total disability; that,
"... At the time the judgment was entered the applicable statutory provisions allowed benefits of $47.00 per week or a total of $18,800.00 and the mistake in the record is obviously due to the fact that the Court and attorneys inserted the figures applicable to benefits payable at the time the suit was tried rather than including in the judgment the benefits due the plaintiff under controlling law."
Effective July 1, 1971, the Legislature increased the benefits to be awarded under T.C.A. § 50-1007(d) from $47.00 per week, with a maximum of $18,800.00, to $55.00 per week, and a maximum of $22,000.00. It is therefore apparent that the mistake did not arise because the court and attorneys inserted the figures payable at the time the suit was tried. The benefits awarded in the June, 1972 judgment were those in effect on May 11, 1971, the date adjudged to be the date upon which disability benefits should begin, recited to be the disease diagnosis date.
Employer's petition for relief is predicated upon the assertion that the mistake made under the recited circumstances is a mistake "apparent on the face of the record", and seeks relief, "pursuant to T.C.A. § 20-1513, and other applicable law."
As noted above, in the order granting said relief the trial judge was of the opinion that, "... there is a mistake apparent on the face of the record." No other reason for granting relief is recited in said order.
At the time of entry of the June, 1972 judgment, T.C.A. § 20-1513, as well as § 20-1512 and § 20-1508 had been repealed, and were superseded by Rule 60 TRC. Said rule reads as follows:
"RULE 60. RELIEF FROM JUDGMENTS OR ORDERS
60.01 Clerical Mistakes
Clerical mistakes in judgments, orders or other parts of the record, and errors therein arising from oversight or omissions, may be corrected by the court at any time on its own initiative or on motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
60.02 Mistakes; Inadvertence; Excusable Neglect; Fraud, etc.
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise *237 vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this Rule 60.02 does not affect the finality of a judgment or suspend its operation, but the court may enter an order suspending the operation of the judgment upon such terms as to bond and notice as to it shall seem proper pending the hearing of such motion. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud upon the court. Writs of error coram nobis, bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining relief from a judgment shall be by motion as prescribed in these rules or by an independent action."
The question of whether or not the error before the Court is "apparent on the face of the record" is no longer relevant, there being no reference to that class of errors in Rule 60.
Employee's single assignment of error asserts that the Court had no authority to grant the petition to correct the judgment because petition was filed more than one year after entry of the judgment. In brief and argument it is his contention that the error is not a clerical mistake, but falls within the classification set forth in Rule 60.02(1), mistake, inadvertence, surprise or excusable neglect, unavailable after passage of one year.
At first blush it would appear that the use of the incorrect rate schedule in awarding judgment in a workmen's compensation case could be classified as a clerical error. It can logically be stated that the act of turning to T.C.A. § 50-1007(d) and reading therefrom the maximum weekly rate and the maximum total benefits that can be awarded is a ministerial act and that an error in inserting said figures in a judgment could be classified as a clerical mistake.
It is relevant, at this point, to observe that statutory benefit increases have been enacted in almost every legislative session over the past ten years or more. The Court can take judicial notice of the fact that awards in literally thousands of workmen's compensation cases have been made upon the principle that the applicable rate schedule is that schedule in effect upon the date of the employee's injury. However, that question was first adjudicated in a reported case, Cates v. T.I.M.E. DC., INC., 513 S.W.2d 508 (Tenn. 1974). It has never been judicially determined in a reported case that the applicable rate schedule for occupational disease awards is controlled by the date the employee last worked, when the diagnosis was first made at a later date. In light of the foregoing observations, it must be obvious that the mistake made in the instant case was not a clerical mistake. The trial judge, having signed the order, must be presumed to have made a determination that the rate schedule in effect in May, 1971, was the applicable schedule. That determination, as elementary as it may be thought to be, involves a legal construction of the workmen's compensation laws, and is a judicial function, as distinguished from a ministerial or clerical act.
On the record before us, it is admitted that the applicable rate schedule is the one in effect in May, 1966, and we affirm that legal construction of the Workmen's Compensation Act.
In the absence of evidence bearing upon the reason for the draftsman's insertion of the May, 1971 compensation rate and the scope of the trial judge's judicial function performed at the time he signed the judgment approved by counsel for both parties, we are impeded in our effort to determine *238 whether the mistake was an oversight as contemplated in Rule 60.01 or a mistake, inadvertence, surprise or excusable neglect as contemplated in Rule 60.02. On the technical record we find that the error cannot be attributed to any of said reasons.
However, we hold that relief is available to the employer under Rule 60.02(5), "any other reason justifying relief from the operation of the judgment."
This Court holds that the award of the correct workmen's compensation rates applicable to any given suit under said Act is of such overriding importance to employer and employee alike, that, in those cases where there is no dispute as to the date controlling the compensation rates, authority is vested by Rule 60.02(5) for the correction of error therein on motion made within a reasonable time and not limited to one year. Under the circumstances of this case, we find that employer's petition was brought within a reasonable time.
The purpose of the Workmen's Compensation Act is such that the courts of this State should have the authority to correct an error in awarding less than the full rate of compensation to which an employee is entitled, within a reasonable time after judgment. On the other hand, from the employer's viewpoint, whether insured or self-insured, the only constants in its financial exposure are the weekly rates and maximum benefits, the number and wages of their respective employees, and it is unjust to add the variable of errors in awarding more than the applicable compensation rates. Equity, justice, reason and a proper concept of the role of the courts in adjudicating workmen's compensation cases dictate the necessity of correcting errors within the limitation hereinabove stated. Thus we find, "other reason justifying relief from the operation of the judgment" in this case.
We are aware that this decision is contrary to the result reached in College Coal Mining Company v. Smith, 160 Tenn. 93, 21 S.W.2d 1038 (1929), and Shockley v. Morristown Produce & Ice Company, 171 Tenn. 591, 106 S.W.2d 562 (1937).
Both the change in law wrought by Rule 60 and this Court's view of the necessity of accuracy in decreeing the correct rate and maximum benefit under Workmen's Compensation Act justify departure from the result of said cases.
The order of the trial court, correcting the error in the rates of compensation to be awarded employee, is affirmed. The costs are divided equally between employer and employee.
COOPER, HENRY, BROCK and HARBISON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3996835/ | 1 Reported in 201 P.2d 691.
The appellant was convicted of the crime of murder in the first degree. The evidence introduced at the trial, aside from the written confession, was circumstantial.
The slain man, James Moore, was of the age of seventy-nine years, somewhat crippled and partially blind. He lived in a small two-story house near the town of Hartford, in Snohomish county. November 18, 1947, his body was found lying face up on the floor of his house. The condition of the body indicated that death had occurred a considerable time before its discovery. Beside him were bloodstained pieces of wood, portions of a white cane, and particles of glass which evidently came from a broken light bulb located in the ceiling. He had been badly beaten about the head and face, and his throat cut in such manner as to practically sever the head from the body. No fingerprints were found upon any of the articles in the room.
The appellant, fourteen years of age, lived with his mother and stepfather, within two blocks of Mr. Moore's residence. He had been attending junior high school for about a month prior to the murder. He was acquainted with Mr. Moore, and had been in his house on one occasion.
November 17, 1947, appellant talked to two girls, mentioned the murder, and told them to look in the newspapers for the news. At that time, nothing had appeared in the newspapers concerning the murder. Appellant, questioned by several county officials, denied that he committed the crime. He was arrested, and a full confession, written on school paper and signed by him, was found in his possession. The confession read as follows: *Page 317
"Nov. 17, 1947
"I, Dick Hein, better known as Richard Hein, am going to write a confession to the murder of James Moore, Residence of Lake Stevens, Washington. This is how it happened: I was walking around the neighborhood smoking when I thought I would go in and find out how Jim's wife was geting along at the hosipitle
at Monroe. We talked for about five mintuets. Then I pick up a cane, smash the light bulb, and start beating Jim. I busted the cane all to hell on his head, then I hit him with a heavy peace of wood. He still groaned with pain so I took up a knife and cut his throat and took the money he had with him which amounted up to $15.80 and got out of there. Dick or Richard Hein "P.O. Box 99 "Hartford, Wash."
The first assignment of error has to do with the refusal of the court to allow a certain witness to testify. The question of the witness' right to testify arose in the following manner: Inez Pitzer, who had attended junior high school with appellant, called as a witness for the state, testified, on cross-examination, that appellant had told her that he had murdered him (Mr. Moore). The testimony on cross-examination was:
"Q. What happened that day that led up to this conversation? Do you remember that? A. Well, my girl friend and I, when he passed us, we remarked on his hat. We said that it was a pretty hat and we liked it. Q. Then, what happened after you remarked about the pretty hat? A. Well, he just turned around and said that he murdered a guy for it, and we didn't believe him because we thought he was joking, and he said it in a joking way. Q. He said he murdered a man for the hat? A. Yes. Q. Do you remember what kind of a hat that it was? A. It was a red hunting hat."
During the time appellant's evidence was being submitted to the jury, Inez Pitzer was called to the witness stand, and the following occurred:
"DIRECT EXAMINATION
"BY MR. CONROY: Q. Will you give your name, please? A. Inez Pitzer. Q. Are you the girl that testified this morning? A. Yes. Q. And you mentioned a red hat Richard Hein was wearing, this morning. Do you remember that, *Page 318
Inez? A. Yes, uh-huh. Q. I give you what we have here as Defendant's Exhibit Number `1', and ask you if you have seen this hat before, and if that is the hat that Richard Hein was wearing? MR. SHERIDAN: I object to this witness testifying, Your Honor. I do not observe her name on the defendant's list of witnesses. THE COURT: Well, if it is not there, the objection will be sustained. MR. DAILEY: She is here as a State's witness, if Your Honor please. THE COURT: That doesn't make any difference. She is not on the stand as the State's witness now. MR. DAILEY: Give us an exception, Your Honor, to His Honor's ruling. MR. CONROY: All right, Inez. I guess that's all. Thank you."
It is admitted that the name of the witness, Inez Pitzer, was not on appellant's list of witnesses. Counsel for appellant take the position that the appellant was, by the ruling of the court, deprived of his constitutional right to have witnesses testify on his own behalf. The trial court based its ruling on the provisions of Rem. Rev. Stat., § 2050 [P.P.C. § 131-2], which provides that a defendant in a criminal case must, within five days after the prosecuting attorney files his list of witnesses, file with the clerk "a list of the witnesses which the defendant intends to use at the trial."
Counsel for the state argue that the objection is not well taken, because counsel for appellant, when the witness was called and objection was made to her testifying, did not make any statement to show the nature of the testimony which they expected Miss Pitzer would give.
The statute to which we have just referred, was passed in its present form in 1925, and has come to the attention of this court on several occasions. In State v. Sickles, 144 Wn. 236,257 P. 385, we considered the validity of the statute, in view of the provisions of Art. 1, § 22, of our state constitution, which gives a defendant the right to compulsory process in order to compel the attendance of witnesses. This court interpreted the statutory constitutional provision, as follows:
"We think in this statute a reasonable time is provided. But if the defendant did not know that certain witnesses were important to his defense at that time, and learns of them later, he should be entitled to furnish a list of such witnesses and procure compulsory process for their attendance. *Page 319
Indeed, this constitutional right obtains at all times to the end of the trial. That was what was done to further the attainment of justice on behalf of the prosecution in the Bokien case,supra [State v. Bokien, 14 Wn. 403, 44 P. 889]. That was what should have been done in this case. In this case, counsel for respondent, the defendant, made an offer of proof of what each individual witness would testify to. He also made an offer to show that the defense did not know of the witnesses until the night before the trial. In such case the exclusion of the testimony of the witnesses for the defendant would prevent the defendant from having a fair trial, as guaranteed by the constitution."
Our holding in the companion case of State v. Adams,144 Wn. 699, 257 P. 387, appears in this statement:
"The trial court made the same order in this case as was made in the Sickles case, ante p. 236. . . .
"What he should have done would have been to call for reasons, if any, why the list of witnesses had not been furnished by the defendant earlier, and exercised his discretion as to whether the witnesses would be allowed to testify on behalf of the defendant, although no list of witnesses had been furnished by defendant or his counsel before trial."
It appears in State v. Lunsford, 163 Wn. 199, 300 P. 529, that the defendant offered as a witness a woman whose name had not been listed as a witness and who had not been subpoenaed. In that case, we explained the rule further by holding:
"Upon such a situation arising as that now under discussion,an offer of proof should be made, stating, briefly, thesubstance of the testimony which will be given by the witnesswhose testimony is desired. There is nothing in the record before us from which it can be determined that Mrs. Dennison would have testified to any facts material to the issues, or that her testimony would have been admissible in evidence. In theSickles and Adams cases above cited, the respective defendants were not allowed to introduce any testimony whatever save their own. In the case at bar, appellant presented much testimony on his behalf, and an entirely different question is presented upon the assignment of error now under discussion. *Page 320
"It is a very simple thing for a defendant to make a statement by way of an offer of proof, embodying the substance of what he believes will be the testimony of a witness offered on his behalf. To hold that, upon this matter, the action of the trial court constituted reversible error, might result in a ridiculous situation if, after reversal of the judgment of guilty, upon the case once more coming on for trial, it should appear that the witness whose testimony was desired by defendant could give no testimony which was pertinent or which under the law was admissible. Because of the failure of appellant to make anyoffer of proof as to the facts concerning which Mrs. Dennisonwould testify, we find no reversible error in the ruling of thetrial court refusing to allow the witness to be sworn." (Italics ours.)
The facts in State v. Martin, 165 Wn. 180, 4 P.2d 880, show that the trial court refused to allow two witnesses to testify who were not named on defendant's list of witnesses, though he intended to call them, and who were present at the trial in response to a subpoena issued at the direction of the court. Defendant's counsel made an offer of proof which showed that the evidence which would be given by the witnesses was competent. This court analyzed our former opinions, and, in reversing the judgment of the trial court, held:
"Applying to this situation the doctrine of State v. Sickles
and the other cases above cited, we do not hesitate to decide that the trial court abused its discretion in not allowing the rejected witnesses to testify; for the only purpose the statute was designed to serve — i.e., to guard the state against an unexpected defense or against inability to attack the testimony of unscrupulous witnesses — was not present in this case; and there was no reason whatever for penalizing the appellant for not complying with the statute, however inexcusable his neglect may have been, when his noncompliance put the state to no disadvantage.
"The respondent argues that this holding would render the statute meaningless and useless in every conceivable case, but with this we can not agree. If, in such a case as this, the state should claim surprise, it might become the duty of the court, not to declare that the appellant's evidence should not be received, but that the state should have a reasonable opportunity to prepare itself against surprise; for the constitution, by guaranteeing an accused person the right to defend himself and to compel the attendance of *Page 321
witnesses by the court's own process, necessarily gives him the right to have attending witnesses heard."
Our last case dealing with the statute under consideration isState v. Thomas, 8 Wn.2d 573, 113 P.2d 73. In that case, this court again reviewed its former opinions and then definitely followed the holding in the Lunsford case to the effect that, if a defendant desired to call a witness who had not been mentioned in the list required by statute, he must make a formal offer of proof.
[1] While there are some statements made in our decided cases which lend weight to a contrary conclusion, we are persuaded that, in any case, a defendant, in order to secure the testimony of a witness whose name has not been placed on the witness' list, must make a statement outlining the testimony which he seeks to secure from the witness. The purpose of making a formal offer of proof is to inform the court and counsel concerning the reason for calling the witness, so that the court may ascertain the nature of the evidence and admit it, if competent, or allow the state time to meet unexpected testimony.
[2] We hold that the court did not abuse its discretion in refusing to allow the witness, Inez Pitzer, to testify when she was called as a witness for appellant.
[3] The next assignment of error concerns the court's refusal to allow a red hat to be admitted in evidence. No sustaining authority is cited to indicate error, and we are not acquainted with any case which holds that a trial court is guilty of an abuse of discretion in holding as Judge Bell did in this case. There was no indication, at the time the offer was made, that the hat, if admitted in evidence, would tend to prove or disprove any material charge in the information.
[4] Appellant contends that the trial court committed error when it sustained an objection made by the prosecuting attorney to a question asked of appellant concerning a conversation he had with his brother. It is our conclusion that the court was correct in holding that the evidence was hearsay. *Page 322
[5] The last assignment of error has to do with the question concerning the possession of money by appellant. There was evidence produced by the state to the effect that, shortly after the death of Mr. Moore had been ascertained, appellant had in his possession a ten-dollar bill and a one-dollar bill. The manifest purpose of the evidence was to show that the motive of murder was robbery. In explaining the possession of the money, appellant testified that he had received it from a man named Magnuson, in payment for taking part in a wrestling bout. The court sustained an objection to the question, "Why did he pay you money for that"? Clearly, the court's ruling was correct. There was no useful purpose to be served by receiving evidence concerning the reason for Magnuson paying appellant to take part in a wrestling match. Appellant had the benefit of the evidence concerning the source of the money he had in his possession. He was entitled to that evidence, and no more. Appellant received a fair and impartial trial.
The judgment based on the verdict of the jury is affirmed.
MALLERY, C.J., MILLARD, ROBINSON, and SCHWELLENBACH, JJ., concur.
February 8, 1949. Petition for rehearing denied. *Page 323 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/156703/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 4 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
NICK AVILA, JR.,
Petitioner-Appellant,
v. No. 98-1148
(D.C. No. 97-M-2648)
UNITED STATES OF AMERICA, (D.Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Petitioner Nick Avila, Jr., appeals the district court’s denial of his petition
for writ of error coram nobis. We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In September 1987, Avila, a Denver attorney, was indicted by federal grand
jury on four drug-related counts. He was subsequently convicted of all four
counts and was sentenced to four concurrent ten-year terms of imprisonment and
was fined a total of $10,000. His convictions were affirmed on direct appeal to
this court. United States v. Avila , No. 88-1427 (10th Cir. 1989). In July 1989,
the Colorado Supreme Court disbarred Avila as a result of his convictions.
People v. Avila , 778 P.2d 657 (Colo. 1989).
Avila completed his period of imprisonment and, on December 18, 1997,
filed a petition for writ of error coram nobis, asking the district court to set aside
his federal convictions because “he was denied his constitutional right to an
objective prosecutor at all stages of his trial proceedings.” In support of his
petition, Avila alleged the prosecuting attorney in his case “made written and oral
accusations that [Avila] attempted to murder him and otherwise intimidate his
prosecution of [Avila] just prior to the commencement of the jury trial.”
According to Avila, these accusations were based on the discovery, shortly before
trial, of an explosive device affixed to the prosecutor’s car, and on the fact that
the prosecutor’s apartment complex was fire-bombed on the morning Avila’s trial
commenced. Avila further alleged the writ was an appropriate remedy because,
despite having served his period of imprisonment, he continued to suffer criminal
and civil penalties resulting from the convictions. In particular, he alleged he still
-2-
owed a substantial portion of the criminal fine levied against him, and he was
unable to regain his license to practice law because of his convictions. The
district court denied Avila’s petition, concluding even if Avila’s allegations were
true, he had failed to demonstrate his trial was affected in any way by the
prosecutor’s personal interests or motives.
The writ of coram nobis is an “extraordinary remedy” available to a
petitioner no longer in custody who seeks to vacate his conviction in
circumstances where the petitioner can demonstrate that he is suffering civil
disabilities as a consequence of the criminal convictions and that the challenged
error is of sufficient magnitude to justify the extraordinary relief. United States
v. Castro , 26 F.3d 557, 559 (5th Cir. 1994). “Because the writ continues
litigation after final judgment and exhaustion of other remedies, relief should be
‘allowed through this extraordinary remedy only under circumstances compelling
such action to achieve justice.’” Klein v. United States , 880 F.2d 250, 253 (10th
Cir. 1989) (quoting United States v. Morgan , 346 U.S. 502, 511 (1954)). Thus,
“[i]t is presumed that the proceedings leading to the conviction were correct . . .
and the burden is on the petitioner to demonstrate that the asserted error is
jurisdictional or constitutional and results in a complete miscarriage of justice.”
Id.
Avila contends he need not demonstrate actual prejudice flowing from the
-3-
prosecutor’s alleged bias against him. Instead, he argues, the mere existence of
the prosecutor’s bias is sufficient to raise due process concerns and should have
required the prosecutor to recuse himself from further participation in the trial.
Avila cites Young v. United States ex rel. Vuitton et Fils S.A. , 481 U.S. 787, 789
(1987), which held counsel for a party that is the beneficiary of a court order may
not be appointed as special prosecutor in a contempt action alleging violation of
that order. We find Young inapposite as it involved a court’s authority to initiate
criminal contempt proceedings and to appoint a private prosecutor. Nothing in
this case is remotely similar. Avila was prosecuted for drug-related crimes, not
criminal contempt. The prosecutor was an Assistant United States Attorney, not a
special prosecutor. The prosecutor’s alleged bias stems from his being the target
of two apparent crimes, not from his representation of another person or entity.
More on point is United States v. Lorenzo , 995 F.2d 1448 (9th Cir. 1993),
where defendants were convicted for involvement in sending IRS 1099-MISC
forms to government officials, including a United States Attorney and several
assistants, and seeking tax refunds. Defendants argued on appeal that, because
the United States Attorney and several assistants were “victims” of the crime, the
office of the United States Attorney should have recused itself from prosecuting
the case. The Ninth Circuit rejected this argument, holding defendants had not
demonstrated prejudice. Id. at 1453. Other circuits agree that a criminal
-4-
defendant complaining of an appearance of conflict on the part of a prosecutor
must demonstrate actual prejudice, particularly where the defendant’s challenge is
not asserted until after conviction. See , e.g. , United States v. Lilly , 983 F.2d 300,
309-10 (1st Cir. 1992); Dick v. Scroggy , 882 F.2d 192, 197 (6th Cir. 1989);
Wright v. United States , 732 F.2d 1048, 1056 n.8 (2d Cir. 1984); United States v.
Heldt , 668 F.2d 1238, 1276-77 (D.C. Cir. 1981).
Because Avila has not even attempted to demonstrate actual prejudice
flowing from the prosecutor’s alleged bias, we agree with the district court that
Avila has failed to overcome the presumption that the proceedings leading to his
convictions were correct.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
-5- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/155569/ | F I L E D
United States Court of Appeals
Tenth Circuit
NOV 18 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-3379
v. D. Kansas
EDITH FAYE WACKER, also known (D.C. No. 92-CR-40042)
as Edie Wacker,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is
therefore ordered submitted without oral argument.
Edith Faye Wacker pleaded guilty to one count of conspiracy to possess
with the intent to distribute marijuana in violation of 21 U.S.C. § 846 and to one
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
count of unlawful use of a firearm during and in relation to a drug trafficking
crime in violation of 18 U.S.C. § 924(c). On appeal, we remanded Wacker’s
sentence “with instructions that the district court specifically articulate the factual
basis and findings necessary for imposing the ‘manager or supervisor’
enhancement under USSG § 3B1.1(b).” United States v. Wacker, 72 F.3d 1453,
1480 (10th Cir.), cert. denied, 117 S. Ct. 136 (1996).
Prior to resentencing, Wacker filed a motion pursuant to 28 U.S.C. § 2255
seeking to vacate the conviction and sentence imposed on the § 924(c) count. The
government conceded that there is an insufficient factual basis for her guilty plea,
and the district court accordingly vacated Wacker’s conviction and sentence as to
the § 924(c) violation. The court then resentenced her and included a two-level
enhancement pursuant to USSG § 2D1.1(b)(1) for possession of a firearm during
a drug trafficking offense. Wacker argues that the district court violated our
mandate by conducting resentencing on issues not decided in the direct appeal and
that the district court lacked jurisdiction to resentence her on a count of
conviction not challenged in her § 2255 motion.
While we agree with Wacker that our mandate was limited to resentencing
on the specific issue of the “manager or supervisor” enhancement under USSG
§ 3B1.1(b), see United States v. Webb, 98 F.3d 585, 587-88 (10th Cir. 1996),
cert. denied, 117 S. Ct. 1097 (1997), her subsequent filing of a § 2255 motion
-2-
broadened the scope of the resentencing. When the district court has itself
vacated a count of conviction pursuant to a § 2255 motion, it has jurisdiction to
determine the scope of resentencing. See United States v. Moore, 83 F.3d 1231,
1235 (10th Cir. 1996). And in United States v. Mendoza, 118 F.3d 707, 709-10
(10th Cir.), cert. denied, 1997 WL 612704 (U.S. Nov. 3, 1997), we specifically
held that in a § 2255 proceeding the district court has jurisdiction to enhance the
sentence pursuant to USSG § 2D1.1(b)(1) after vacating a § 924(c) conviction.
We therefore agree with the district court that “it is unnecessary in the context of
evaluating Edith Wacker’s § 2255 motion for the court to consider whether it is
constrained by the Tenth Circuit’s mandate from enhancing her sentence pursuant
to § 2D1.1(b)(1),” United States v. Wacker, 1996 WL 596744, at *2 (D. Kan.
Sept. 16, 1996), and that her sentence was properly enhanced upon resentencing.
Accordingly, the sentence imposed by the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-3- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/93308/ | 144 U.S. 136 (1892)
DILLMAN
v.
HASTINGS.
No. 201.
Supreme Court of United States.
Argued March 9, 1892.
Decided March 28, 1892.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.
*137 Mr. A.S. Worthington for appellant.
No appearance for appellees.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
This was a bill filed by Jared W. Dillman, November 8, 1886, against the administrators of Joseph Hastings, deceased, in the Circuit Court of the United States for the Northern District of Ohio, which set forth that from and including the month of March, 1875, to and including the month of May, 1881, complainant sent to Hastings from time to time various sums of money to be lent by him for complainant at interest, Hastings being instructed and agreeing to reinvest the interest in the same way. The money was first invested at ten per cent annual interest but early in 1881 Hastings informed Dillman that the rate of interest was reduced to eight per cent. Hastings died on February 12, 1886.
The administrators answered, alleging ignorance of the *138 transactions or agreements between Hastings and Dillman except that they admitted that at the time of his death Hastings had of Dillman's money the sum of $1875. They also averred that an agreement to account for interest at ten per cent was illegal and void; and set up the statute of limitations as to that part of the account which accrued prior to December 25, 1879.
Replication was duly filed and depositions taken, and on January 10, 1888, by agreement of parties the cause was referred to the clerk of the court "because of his skill in matters of accounting," as a special master, "to hear and from the testimony determine and report to the court, what, if anything, is due complainant herein from the defendants herein on account of the matters set forth in complainant's bill filed herein and what relief be granted to said complainant; and for the purposes of this reference the said special master is hereby vested with all the power and authority conferred upon masters in chancery by the equity rules of the Supreme Court and by the practice of this court. He is authorized to hear testimony, and he will report his findings of law and fact, together with the evidence taken, and also state an account, based upon such facts, between said parties, at the earliest practicable day."
On April 28, 1888, the master filed his report, finding due to the complainant the sum of $14,394.50, with interest thereon at the rate of six per cent from February 12, 1886. This total was arrived at by charging Hastings with the cash received by him, with interest on each item at ten per cent, with annual rests, to April 1, 1881, and at eight per cent thereafter, making an aggregate of $15,694.50, and deducting therefrom a credit by cash paid on February 2, 1886, of $700, and also the sum of $600 for compensation allowed Hastings, leaving a balance of $14,394.50.
Complainant's counsel filed three exceptions to the master's report, of which the first and second alone were relied on, which were: (1) That the master allowed interest at the rate of only six per cent from the time of the death of Joseph Hastings, whereas he should have allowed eight per cent: *139 (2) That the master allowed a compensation of $600 for services of Hastings, whereas no compensation should have been awarded. The defendants filed ten exceptions, but they have not appealed, and therefore these need not be considered, except so far as they were sustained by the court.
The case having come on to be heard on the report and the exceptions on both sides, was argued by counsel, and the court disallowed complainant's exceptions, and also defendants' exceptions, except that the court found "that the master erred in the method of computing interest on the amounts in his report set forth; that the taxes set out in the evidence in the case should have been allowed the respondents, and that the respondents should have been allowed the sum of one thousand and eighty dollars for compensation for services in the agency." And the court, except as above specified, confirmed and approved the report, and, after making the allowances indicated, found that there was due complainant from the administrators of the estate the sum of $12,172.59, with interest from June 5, 1888, the first day of the term, and decreed accordingly. The case was thereupon appealed to this court by the complainant
In the account stated by the master, interest was included up to April 1, 1881, at the rate of ten per cent, and at eight per cent thereafter, with annual rests. This was upon the view that Hastings had invested complainant's remittances at these rates, and received and reinvested the interest in the same way, as shown by the correspondence between the parties. We concur with the master that this is a fair deduction from the evidence, which leaves no reasonable doubt that such was the fact, and if not, that complainant believed it to be so upon the strength of Hastings' assurances to that effect, and left the money in his hands under that conviction.
Not only did the correspondence sustain the master's conclusion, but the administrators did not testify, and produced no books or papers showing the state of accounts between the decedent and the complainant, notwithstanding notice to do so, and although the letters tended to establish that Hastings kept a book containing an account of his investments for *140 complainant. The trust relation between the parties was fully disclosed and entitled complainant to a complete accounting; and, as the master held, it was clearly Hastings' duty to keep accounts as between him and complainant, and whatever data existed in Hastings' papers, calculated to throw light upon the transactions, should of course have been furnished. In the absence of such data and upon a careful examination of the evidence, we hold that the master was right in the course he pursued.
On the second of April, 1881, complainant wrote Hastings that, according to his account, if he had calculated correctly, the sum in Hastings' hands on April 1 amounted to about $10,500; and this does not appear to have been questioned by Hastings. According to the master's report the sum at that time, interest being included at ten per cent, with annual rests, was $10,495.18, and interest after that was calculated at eight per cent with which rate complainant wrote he should be entirely satisfied, but wished his money returned to him so far as that rate could not be obtained.
Defendants' third exception questioned the allowance of interest upon the ground that an agreement to account to plaintiff at such rates would be illegal and void, and because it was not shown that such interest was received by the deceased. But it was not contended that if the interest were received, defendants were not obliged to account therefor, and we think for the reasons given that this exception should not have been sustained. The Circuit Court does not seem to have delivered any opinion, and there is nothing in the decree giving a sufficient basis to ascertain, with precision, in what respect the court held that the master erred in the method of computing interest. But this is not material, inasmuch as we are of opinion that the master's report was correct in this regard.
After the death of Hastings, which occurred, as already stated, on February 12, 1886, his administrators should not be held to respond at a greater rate of interest than six per cent, which was the legal rate in Ohio, in the absence of special agreement, it not sufficiently appearing that they themselves *141 received interest at a higher rate, and therefore the complainant's first exception was properly overruled.
The master allowed six hundred dollars compensation, which was raised by the court to one thousand and eighty dollars. A portion of this increase, we presume, was for interest upon the proper compensation from time to time during the period covered by the transactions. At all events, while the proof is not satisfactory that Hastings was to obtain his compensation from complainant rather than from the borrowers, we are not inclined to modify the decision of the court upon this point, and this disposes of the second exception.
It was found by the court that the taxes set out in the evidence as paid by Hastings should have been allowed the defendants. As we understand the record, these taxes amounted with the interest thereon, calculated at ten per cent and eight per cent up to February 12, 1886, to $770.45, and we agree with the master that it does not appear for whom these taxes were paid. It was provided by the statute of Ohio that "every person required to list property on behalf of others ... shall list it separately from his own, specifying in each case the name of the person, company or corporation to whom it belongs." Rev. Stats. Ohio, 1890, § 2735. No such listing of Dillman's money is shown.
The evidence established the payment of certain taxes by Hastings, but not that they were paid on account of Dillman or of anybody other than himself. It appeared that Hastings had money of his own, and that he received money from other persons than Dillman, which he loaned for them, taking the securities in his own name. If Dillman could have been taxed in respect of his moneys in Ohio, it is enough that the record does not show that these taxes were levied as against such moneys, and paid on his account. And here again the absence of evidence on defendants' behalf should be borne in mind, for, we repeat, it was Hastings' duty to have kept accounts, and the case made justifies the inference that there were such. The bill avers that when complainant presented his claim against the estate he credited these taxes, with interest, upon the faith of a memorandum furnished by defendants, *142 but, finding that the credit was unfounded, he insisted that he should not be charged therewith. In our judgment the court ought not to have allowed the taxes under the circumstances.
We notice that interest should have been allowed at the rate of eight per cent on the $700 paid by Hastings to Dillman, February 2, 1886, from that date to February 12, being $1.55, as shown by the account annexed to the bill.
The amount found due by the master was $15,694.50, from which he deducted $700 in cash, paid February 2, 1886, and $600 for compensation. We think from the $15,694.50 there should be deducted $701.55, and also $1080 as compensation, as found by the court. This leaves a balance of $13,912.95, and to that extent the decree is modified.
The result is that the decree will be reversed with costs, and the cause remanded with a direction to enter a decree for $13,912.95, with interest at six per cent from February 12, 1886, to the date of the decree.
Decree reversed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3993802/ | HOLCOMB, J., dissents.
This action was instituted as a condemnation proceeding, upon the petition of the Puget Sound Power Light Company, a corporation. The purposes for which the corporation is organized are extensive and are both public and private. For a number of years it has been, and is still, engaged in carrying out those purposes. When this proceeding was commenced, the corporation was engaged in constructing a hydro-electric plant on Baker river to produce additional electric power, estimated at 18,000 *Page 309
K.W. In order to transmit this power it is necessary to construct and use a transmission line or lines across the lands of Floyd Sill and others, described in the petition. Being unable to agree with the landowners on the price to be paid for an easement for such transmission line, the corporation seeks to acquire it by condemnation. On hearing the application for an order adjudicating that the use for which the plaintiff sought to acquire such easement was a public use and that there was public necessity therefor, the superior court made the following findings of fact, conclusions of law and order, viz.:
"This cause came on regularly for hearing on the 15th day of September, 1924, upon the application of the petitioner for an order of adjudication of public use and necessity, the petitioner and the respondents appearing by their respective attorneys of record. Evidence was adduced and certain admissions were made and stipulations entered into upon the trial, from which the court finds and determines — that the petitioner is a corporation authorized to do business in the state of Washington, and has paid its annual license fee last due to said state, and is empowered by its articles of incorporation to engage in and is actually engaged in, among other things, the business of generating and distributing electric power and energy in and throughout Snohomish, Whatcom, Skagit, King, and Pierce counties and elsewhere throughout the state of Washington, for the operation of interurban railways and to furnish light for public buildings and places and to many persons for use in their homes, and is also engaged in supplying such power to persons who use it for manufacturing purposes, and that all of the original capital stock of the petitioner has been subscribed and paid; that petitioner now has available for all purposes about 143,000 K.W.; that it is now engaged in the construction of a water-power generating plant on the Baker river wherein it proposes to produce electric current to be used for public purposes to the extent that there shall be demand for such use; *Page 310
that it sells, and proposes to sell, current for manufacturing purposes to other concerns and for other private uses; that it operates interurban lines, furnishes light for public buildings and places and to many persons for use in their homes; that it seeks the rights here sought to be appropriated by it in order that it may transmit over the lines to be built by it and thus render available for distribution and use the electric current to be by it generated at said Baker river plant; that at the peak hour, or time of highest demand for public uses upon its now available current, it has current actually devoted to private uses to the extent of from 25% to 30% of its total supply; that at the hour of minimum demand for its public uses, it now has available for private uses 50% to 60% of its total current; that it actually has at the present time a surplus over all demand, both for public and private uses, of approximately 23,000 K.W.; that the transmission lines for which the easement is sought to be condemned herein would be used to transmit power for use in operating street railways, interurban lines, street lighting, and lighting in homes under franchise of petitioner and also for operating manufacturing plants, but such transmission lines would not be constructed in any other manner for the transmission of all of such power than they would be constructed if wholly devoted to transmitting power used wholly for public uses; that if the rights sought to be condemned are for a public use within the meaning of the constitution and the law, necessity exists for the acquisition of such rights.
"In view of the foregoing, the court concludes that the contemplated use of the rights sought to be condemned herein is not a public use, and for that reason
"It Is Ordered, Adjudged and Decreed that the petitioner's said application be and the same is denied, to which order the petitioner excepts and its exception is allowed."
The petitioner made no request for any finding that was refused, nor was any exception taken to any finding that was made. The petitioner filed written exceptions to the conclusion of law entered in the case, and *Page 311
by writ of review has brought the case here for our determination.
It may be well to state that we do not understand by the allegations of the petition or the findings of fact, or both, that the plaintiff has heretofore availed itself of, or is now proceeding under, the provisions of the act of March 13, 1907, Laws of 1907, p. 349; Rem. Comp. Stat., § 5432 [P.C. § 7617], relating to corporations organized for the purpose of generating and transmitting electrical power for the operation of railroads and railways or for municipal lighting, of which, in the case ofState ex rel. Dominick v. Superior Court, 52 Wn. 196,100 P. 317, 21 L.R.A. (N.S.) 448, we said:
"It is questionable whether the legislature intended by this act to merely enlarge or extend the uses that might be made of electricity generated for public purposes and not needed therefor, or whether it intended to enlarge the power of eminent domain itself. If the former was intended, the act would seem to be entirely free from constitutional objection, while in the latter case the validity of the act would be very questionable, under previous rulings of this court."
In eminent domain proceedings on the petition of a corporation such as this one, § 925, Rem. Comp. Stat. [P.C. § 7650], requires that three things be satisfactorily proven to the trial court, in the following order, viz: (1) that the contemplated use for which the property sought to be appropriated is really a public use; (2) that the public interest requires the prosecution of such enterprise; and (3) that the property sought to be appropriated is required and necessary for the purposes of such enterprise. The part of § 16, art. 1, of the state constitution that covers this subject deals only with the first of those three things. It says:
"Whenever an attempt is made to take private property for a use alleged to be public, the question whether *Page 312
the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public."
Thus, by both the constitution and the statute, the primary question is that of public use. In this case the trial judge did not find that there was a necessity for the taking of the property, but the finding was "that if the rights sought to be condemned are for a public use within the meaning of the constitution and the law," that then there was necessity for acquiring the property. The language used is somewhat faulty, but evidently it was intended to mean that, if the contemplated use of the property sought to be taken was really a public use, that then necessity existed for the acquisition of it, because, immediately following that statement in the findings, the court makes its only conclusion "that the contemplated use of the rights sought to be condemned herein is not a public use."
Under the constitution and the statute, private property may not be taken for uses that are both public and private; nor for a private use, "except for private ways of necessity and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes;" nor for purposes that are private, or both public and private, with the proviso that if later on it be found necessary to do so, that then it shall be devoted to a public use; but, on the contrary, it is plainly the intent, according to the terms of the law and the sovereign nature of the right, that, at the time of taking the property, the contemplated use to which it is to be devoted shall "be really public," and in the determination of that question "courts look to the substance rather than the form, to the end rather than to the means."
Certain of our cases are quoted and relied on by the plaintiff. Among them are State ex rel. Harlan v.Centralia-Chehalis *Page 313 Elec. R. P. Co., 42 Wn. 632, 85 P. 344, 7 L.R.A. (N.S.) 198, and State ex rel. Harris v. Superior Court, 42 Wn. 660,85 P. 666, 7 Ann. Cas. 748, 5 L.R.A. (N.S.) 672. In the latter case, as stated by counsel, it was said:
"We held in the State ex rel. Harlan v. Centralia-ChehalisElec. R. etc. Co., ante p. 632, 85 P. 344, that the operation of an electric car was a public use, and the right of condemnation existed for the purpose of obtaining power necessary for the prosecution of such business. It is, also, we think, without question now admitted that the furnishing of electric lights to a municipality is a public use which warrants condemnation of private property."
Also the case of State ex rel. Harris v. Olympia L. P.Co., 46 Wn. 511, 90 P. 656, wherein we said, "It is conclusively shown that the rise of the water in the lake will cover the lands sought, and since it is conceded — or, at least, was decided in this case when it was here before — that the street railway and electric lighting systems are for a public use, it follows that the respondent was authorized to condemn the land sought." Also the case of Tacoma v. Nisqually Power Co.,57 Wn. 420, 107 P. 199, cited only by the plaintiff, was one wherein it was held, upon eliminating by the process of construction the word "private" from the act, that every mentioned and described purpose in the act is an undoubted public use and that "there is no commingling of public and private purposes, nor authority given under the act to use any of the facilities therein referred to for other than a distinctively municipal use." True, in the opinion in that case it was said that if, at a time when the peak load was not required for public use, it permitted for other use what the evidence showed to be insignificant and purely incidental that it would not defeat the right to condemn for public use, nevertheless, it was observed *Page 314
by the court, "In the case before us now, it is apparent from the evidence, which must be the controlling feature, that the city's need of the power it seeks is a strictly municipal and public use, and that it is not seeking, in its requirement of 20,000 horse power, more than will in the near future be required for a purely public use." Also the case of State ex rel. Lyle Light,Power Water Co. v. Superior Court, 70 Wn. 486, 127 P. 104, cited by counsel, was one wherein the court said, "The petition avers, and the testimony shows, that the uses sought to be served by respondent and for which the property is sought to be taken are public." And another case cited, State ex rel. WeyerhaeuserTimber Co. v. Superior Court, 71 Wn. 84, 127 P. 591, was one wherein, although the objects of the condemning company as expressed in its articles were for both public and private use, it was said, "The evidence, however, shows that the only present market for electric current and the only present purpose of the respondent is to furnish electric light to the town and inhabitants of Sultan."
To the extent that these cases declare what are public uses and that condemnation will be allowed where the property sought will be used only for public purposes, although the powers possessed by the condemning company may be both public and private, there can be no question. Nor is there any doubt in the present case that the property sought, if permitted to be acquired, would be devoted more largely to public uses, although manifestly, to a very great and important extent it would be devoted continuously to private uses. There is neither allegation nor finding in this case that there is at this time, or according to any anticipated need for the near future, any necessity for the taking of this property for public use. On the contrary, it appears clearly that if there is any necessity whatever for *Page 315
acquiring the property it is for the prosecution of uses that are both public and private and which are combined in such manner that they may not be separated.
In State ex rel. Harris v. Superior Court, 42 Wn. 660,85 P. 666, it was held that a company operating a street railway system and public lighting plant was not entitled to exercise the right of eminent domain to secure electric power to sell to the public generally and without discrimination, in addition to the amount required for its light and street railway system. In that case, upon permission granted, the power company amended its petition and, upon a second trial, both the trial court and this court allowed condemnation. State ex rel. Harris v. Olympia L. P. Co., 46 Wn. 511, 90 P. 656. This court, in the latter case, held "that both the petition to condemn and the testimony in support thereof showed that the lands sought to be condemned are necessary for public use and that the respondent corporation intended to so use it," following the rule of State ex rel.Harlan v. Centralia-Chehalis Elec. R. P. Co., supra.
This court, like many others, has often said that if a private use is combined with a public one in such a way that the two cannot be separated, then, unquestionably, the right of eminent domain could not be invoked to aid the enterprise, "and this being true, we think it must be true, also, that when a corporation, whose articles disclose purposes some of which are public and some of which are not, seeks to exercise the right of eminent domain, we may look to its application and the evidence introduced at the hearing to determine what its real purposes are." State ex rel. Harlan v. Centralia-Chehalis Elec. R. P.Co., supra.
In this case the findings show that the relator is not only empowered but is actually engaged in both public and private enterprises; that without the Baker river *Page 316
project it now has available 143,000 K.W.; that at the peak hour, or time of highest demand for public uses upon its present available current, it has current actually devoted to private uses to the extent of twenty-five to thirty per cent of its supply; that at the hour of minimum demand for public use it now has available for private uses fifty to sixty per cent of its total current; and that it has at the present time a surplus over all demand, both for public and private uses, of approximately 23,000 K.W. That is, while serving the public at the peak hour, it has, not simply available but actually devoted to private uses, twenty-five to thirty per cent of its present supply of power, and while it has a greater amount of power for private use when not using the maximum for public purposes, still the unquestioned finding is that it actually has at the present time a surplus over all demands, both for public and private use, of approximately 23,000 K.W.
As we view it, this is not a case of providing for a public use and, when the maximum for that purpose is not required, devoting it, or a part of it, to some other purpose so as to prevent waste, but a case of actually devoting one-fourth of the total available supply to private use at the same time of the highest demand for public service and still have over and above the two combined a supply of approximately one-sixth of the total present available supply. Under such circumstances we know of no sound reason for holding, nor any case judicially declaring, the contemplated use of additional property to be really public, hence there is no necessity shown for the taking of the property sought to be acquired.
Plaintiff lays considerable stress on the following words in the findings: "But such transmission lines would not be constructed in any other manner for the transmission of all of such power than they would be *Page 317
constructed if wholly devoted to transmitting power used wholly for public uses." These words immediately follow the statement "that the transmission lines for which the easement is sought to be condemned herein would be used to transmit power for use in operating street railways, interurban lines, street lighting, and lighting in homes under franchise of the petitioner and also for operating manufacturing plants," which altogether constitute one finding as made by the court. Because of the language first above quoted, it is argued, in effect, that, since the same servitude would be imposed on the land if all of the power transmitted over the lines thereon was devoted to a really public use, it is immaterial to the rights of the parties if a part of the power transmitted be devoted to a private use. The argument is not convincing because it neither comprehends nor answers the vital question in the case. The real test or question is, what is the contemplated use of the power intended to be transmitted over lines for the erection and maintenance of which the property is sought to be taken? We think it must be held that the conclusion of the trial court was right.
The order denying the petition is affirmed.
TOLMAN, C.J., MAIN, PARKER, MACKINTOSH, BRIDGES, and ASKREN, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2575451/ | 98 F. Supp. 2d 216 (2000)
Leona McCULLEY
v.
SOUTHERN CONNECTICUT NEWSPAPERS, INC.
No. 3:96CV1274(RNC).
United States District Court, D. Connecticut.
March 29, 2000.
*217 *218 Leona McCulley, pro se.
Kevin O'Leary, Cummings & Lockwood, Hartford, CT, for Defendant.
CHATIGNY, District Judge.
After review and absent objection, the recommended ruling is hereby approved and adopted.
RECOMMENDED RULING
MARTINEZ, United States Magistrate Judge.
Pending before this court is the defendant Southern Connecticut Newspapers' Motion for Summary Judgment (doc. # 81). The undersigned recommends that the motion be GRANTED in part and DENIED in part for the reasons that follow.
I. PROCEDURAL HISTORY
The plaintiff's pro se complaint sounds in three counts. In the first count, she alleges that her race and gender were motivating factors in the defendant's failure to promote her. In her second and third counts, she claims that the defendant withheld her short term disability benefits and terminated her in retaliation for filing discrimination complaints with the U.S. Equal Employment Opportunity Commission ("EEOC") and the State of Connecticut Commission on Human Rights and Opportunities ("CHRO").
On August 6, 1999, the defendant filed a motion for summary judgment urging this court to grant judgment in its favor on all three counts. On August 30, 1999, the plaintiff filed an opposition to the motion for summary judgment.[1]
II. FACTS
The plaintiff, an African American woman, was employed by The Advocate, a daily newspaper in Stamford owned by the defendant Southern Connecticut Newspapers, Inc. The defendant hired the plaintiff in 1984 as a part-time driver. (Doc. # 83, ¶ 1). Her responsibilities included "delivering newspapers to racks," training other drivers, "covering shorts" and making "bundle drops." (Doc. # 83, ¶ 2).
In 1986, the plaintiff made allegations of gender discrimination against The Advocate and claimed that similarly situated *219 males were paid more than females. The CHRO investigated the complaint and determined that there was insufficient evidence to substantiate the claims. (Doc. # 83, ¶¶ 3, 4).
In January 1994, the plaintiff applied for a full-time motor route driver position. (Doc. # 83, ¶ 5). Her supervisor, Gary Edwards, awarded her the position. It was considered a promotion from her part-time position. (Id.) As a full-time driver, the plaintiff reported for work at 9:00 a.m. and left about 1:30 p.m. (Doc. # 83, ¶ 6). She also had to work from 4:00 a.m. until about noon on Saturdays and Sundays. (Doc. # 87, ¶ 2).
During the same period of time that the plaintiff was employed by The Advocate as a full-time driver, she also worked for the Laidlaw Bus Company. (Doc. # 83, ¶ 6).
In the early months of 1995, another full-time motor route driver position became available. (Doc. # 83, ¶ 10). The plaintiff told her supervisor that she would be interested in the position if it meant an increase in pay and a day off. (Doc. # 83, ¶ 12).
On January 23, 1995, the defendant posted a notice concerning this position. The notice stated that a full-time motor route position was open and that the defendant was accepting applications for the position. The notice described the position as follows, "Responsibilities will include: delivering a motor route every day, removing and installing tubes, filling in for other drivers, and assisting supervisors with managing district while off." (Doc. # 83, ¶ 11). The job requirements were described as follows:
Must be a dependable individual available to work a 7-day work week. Must be able to lift bundles up to 50 pounds and be able to install and remove tubes. Must have valid driver's license. Must be able to work well under pressure and assume responsibilities on short notice. Hours will vary between 4:00 a.m. to noon weekdays, and 3:00 a.m. to noon on weekends. WEEKENDS WILL BE REQUIRED.
(Doc. # 88, Tab B, p. 4). The notice also stated that a "preferred candidate" was being considered but that qualified employees were nevertheless encouraged to apply. (Id.) The notice did not indicate the pay rate for the position. (Id.)
The defendant has a policy that allows it to pre-select a "preferred candidate" for a position. The policy provides that
if there is a preferred candidate for a position or if a position has been created for a particular employee, the job posting will state that there is a preferred candidate. A preferred candidate is one who through position, training and/or experience is well qualified. The preferred candidate may be a current employee or an outside candidate.
(Doc. # 88, Tab B, p. 1).
Before the notice describing the job opening was posted, Richard Nevers, an African American man, was identified as the preferred candidate. At that time, Mr. Nevers was employed by the defendant as a part-time driver. (Doc. # 83, ¶ 19-20).
The plaintiff applied for the posted position. On her application, she wrote, "can work hours." (Doc. # 88, Tab B, p. 6). She and Mr. Nevers were interviewed and considered for the position. On January 30, 1995, Mr. Nevers was selected. (Doc. # 83, ¶ 17; Doc. # 88, Tab B, p. 7). Both before and after Mr. Nevers received the new position, he was paid $8.70 per hour. The plaintiff was paid $11.10 per hour during the same time period. (Doc. # 83, ¶ 20; Doc. # 84, Tab C, Ex. C).
In or about April 1995, the plaintiff filed another complaint with the CHRO alleging discrimination. She asserted that the defendant discriminated against her in failing to offer her a promotion,[2] that is, in failing *220 to give her the position that was filled by Mr. Nevers. Specifically, she claimed that the she was discriminated against based on her race and gender. (Doc. # 83, ¶ 22).
During the relevant time period, the defendant employed ten full-time motor route drivers, including the plaintiff and Mr. Nevers. Three of the ten were African American women. (Doc. # 83, ¶ 21).
On July 30, 1995, the plaintiff received a favorable performance evaluation as well as an increase in her salary. (Doc. # 83, ¶¶ 26-27; Doc. # 84, Ex. E).
In September of 1995, the plaintiff requested short term disability benefits. (Doc. # 82, ¶ 23). The defendant did not pay the benefits right away. It explains that there was a delay while the defendant awaited medical documentation to substantiate the plaintiff's claims. (Doc. # 84, Tab C). The defendant began paying the benefits on September 27, 1995. (Doc. # 84, Tab D).
In November 1995, the plaintiff filed another complaint with the CHRO, this time alleging that the defendant withheld the short term disability benefits for a retaliatory purpose. (Doc. # 83, ¶ 24).
On February 10, 1996, the plaintiff had an argument with a co-worker, Carolyn Heard. The State of Connecticut Department of Labor Employment Security Appeals Division described the incident as follows:
The [plaintiff] was involved in an incident in the employer's parking lot on February 4, 1996, in which she had blocked two other employee vehicles from exiting or entering the facility. One of these coworkers, Roseann Reggiano, got out of her vehicle and asked the [plaintiff] to move the company van so she could exit the employer's facility and begin her own route. The [plaintiff] believed that, in requesting the [plaintiff] to move her vehicle, Reggiano called the [plaintiff] a black bitch, but the [plaintiff] could not verify that Reggiano had done so. The [plaintiff] asked the other employee, Carolyn Heard, if she had heard Reggiano call her a black bitch. Heard told the [plaintiff] that she had not heard Reggiano use this term, that the [plaintiff] "should drop it," and that Heard did not want to get involved in the incident. The [plaintiff] went to her manager, Gary Edwards, to complain about Reggiano's alleged comment. Edwards investigated the incident, which included talking to Reggiano and Heard, who both denied that the comment was made. When the [plaintiff] later asked Edwards the results of his investigation, he told her that Reggiano and Heard had denied the comment was made and that the matter should be dropped.
On February 7, the [plaintiff] approached Heard and started to argue with her about the incident and Heard's failure to take the [plaintiff]'s side against Reggiano. Heard testified that the [plaintiff] was "like a crazy person," that she was upset and talking loudly. Heard subsequently spoke to Edwards and asked him to tell the [plaintiff] to leave her alone. In response, Edwards brought the [plaintiff] into his office and warned her that she should cease discussing the incident of February 4 with Heard.
(Doc. # 88, Tab D, p. 16).
Nevertheless, on February 10, 1995, the plaintiff approached Ms. Heard while she was delivering papers on her route. (Doc. # 83, ¶ 28). Ms. Heard complained to the police that as she drove up to a customer's house, the plaintiff drove alongside Heard and asked Heard whether she had called the plaintiff's house and told the plaintiff "to leave her alone." The women exchanged words and Heard drove away. (Doc. # 84, Ex. G).
Ms. Heard told Gary Edwards what happened. She was very upset. Edwards met with the plaintiff, discussed the incident and told her to leave for the day. The plaintiff asked if she was fired. Edwards replied, "not necessarily." He placed the plaintiff on paid leave until the *221 matter could be further investigated and resolved. Although the plaintiff did not work that weekend, she was paid her full salary. (Doc. # 84, Tab D).
Shortly after his discussion with the plaintiff, Edwards learned that the plaintiff had called the police. When the police arrived, the plaintiff complained that Edwards had shoved her. (Doc. # 87, ¶ 20). Edwards denied the plaintiff's allegations. (Doc. # 84, Tab D).
Edwards found that the plaintiff
had verbally abused Ms. Heard after being specifically directed not to have contact with her. This behavior constituted not only unacceptable abuse, but also insubordination. In addition, [he] concluded that Ms. McCulley engaged in dishonesty, specifically in the police report regarding [his] conduct. Finally, [he] concluded that [the plaintiff] had engaged in inappropriate conduct on company property and while using the company van, including using offensive language and attempting to engage a coworker in an altercation.
(Id.) Edwards determined that the plaintiff had engaged in misconduct and terminated her employment.
The evidence before the court also reveals that another Advocate employee, a white male, was accused of a number of instances of misconduct. His misconduct ranged from carelessness to racial and sexual harassment and spanned several years. (Doc. # 88, Tab C, Ex. D). He was disciplined progressively. The evidence begins with a written warning; with each successive instance of misconduct, there were more severe consequences. Finally, after the fifth instance, he was terminated. (Id.) The evidence does not reveal the same type of progressive discipline for the plaintiff.
III. STANDARD OF REVIEW
A party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, admissions, together with affidavits, show that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Summary judgment is not appropriate where, based on the evidence, a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The party seeking summary judgment bears the burden of showing the absence of any genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
A. Burden-Shifting Paradigm
At the summary judgment stage of an employment discrimination case, a plaintiff must first establish a prima facie case by a preponderance of the evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973) (discussing burden shifting paradigm); Chertkova v. Connecticut General Life Ins., 92 F.3d 81, 86-87 (2d Cir.1996) (discussing burden shifting under Title VII); Fisher v. Vassar College, 70 F.3d 1420, 1433 (2d Cir.1995)(same). This burden is "minimal." Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999). If the plaintiff is successful in establishing a prima facie case, a presumption of unlawful discrimination arises. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir.1996).
Once the plaintiff establishes a prima facie case, the burden of production then shifts to the defendant, who must rebut the presumption by articulating a legitimate, non-discriminatory reason for its action. See id. This burden is also slight; the defendant need do no more than offer an explanation. See id. If the defendant meets this burden, the presumption raised by the plaintiff's prima facie case is rebutted and it drops from the case. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). "The plaintiff then has the opportunity *222 to demonstrate that the proffered reason was not the true reason for the employment decision and that race [and/or gender] was." Bickerstaff, 196 F.3d at 446. This opportunity "now merges with her ultimate burden to persuade the trier of fact that she has been the victim of intentional discrimination (i.e., that an illegal discriminatory reason played a motivating role in the adverse employment decision)." Id.
B. Race and Gender Discrimination Claims
In her first count, the plaintiff contends that the defendant discriminated against her on the basis of her race and gender when it failed to give her the full-time motor route driver position she applied for in January, 1995. The defendant asks the court to grant summary judgment in its favor on this count because it claims that the undisputed facts show that the plaintiff cannot establish a prima facie case of discrimination.
To establish a prima facie case under Title VII, a plaintiff must show that (1) she is a member of a protected class, (2) she is qualified to hold the position, (3) she suffered an adverse employment action, and (4) the adverse action occurred under circumstances that give rise to an inference of discrimination. See Austin v. Ford Models, Inc., 149 F.3d 148, 152-153 (2d Cir.1998). In order to establish this fourth element, the plaintiff must show that she was treated differently from similarly situated employees outside of her protected class. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
For purposes of this motion for summary judgment, the defendant concedes that the plaintiff is a member of a protected class and that she was qualified for the position of full-time motor route driver. See doc. # 82, pp. 13-14. The defendant maintains, however, that there is no genuine issue of material fact as to whether the plaintiff suffered an adverse employment action.
A plaintiff sustains an adverse employment action if she suffers a "materially adverse change" in the terms and conditions of employment. Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.1999). To be materially adverse, the change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir.1993). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Id. An employment action may also be adverse if "it results in a change of responsibilities so significant as to constitute a setback to the plaintiff's career." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640-41 (2d Cir.2000). An adverse employment action will be found where a plaintiff applies for a specific promotion and is rejected for a discriminatory reason. See Brown v. Coach Stores, 163 F.3d 706, 710 (2d Cir. 1998).
The defendant submits that the full-time motor route position was not a promotion. It explains that at the time the plaintiff applied for the new job, she was already employed as a full-time motor route driver and had the same responsibilities as the new position; therefore, the defendant argues, the position would have been only a lateral transfer. In addition, the defendant argues, when Mr. Nevers received the position, he was paid a wage substantially lower than that which the plaintiff was paid.
The plaintiff, on the other hand, maintains that "the actual position was an Assistant Supervisor and the [defendant falsely] writes the name of the job position *223 to discourage other people from appl[y]ing so that he can give it to who ever he wants to." In support of this statement, the plaintiff directs the court to pages 7 through 15 of Tab B, Doc. # 88. The court has carefully reviewed these documents and finds that they do not support the plaintiff's conclusory allegation that the position was a promotion.[3] At best, they show that some full-time motor route drivers fulfilled some supervisory duties while the motor route manager was on maternity leave. See e.g. Doc. # 88, Tab B., pp. 9-10. "Statements that are devoid of specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff, 196 F.3d at 452.
The plaintiff fails to show that she suffered an adverse employment action. She fails to establish that the position which she sought was a promotion or that she received a demotion, a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities. There is no indication that there was a significant change in her responsibilities or that she endured a setback to her career.
Although the plaintiff's burden of establishing a prima facie case of discrimination is slight, see Chertkova, 92 F.3d at 87, the plaintiff in this case has failed to put forward evidence that satisfies this de minimis standard.[4]
*224 C. Retaliatory Denial of Benefits Claim
Title VII retaliation claims are governed by the same legal framework as discrimination claims. In order to establish her prima facie case of retaliation, the plaintiff must show that (1) she participated in a protected activity; (2) the defendant was aware of her participation in the activity; (3) she endured an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse action. See Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir.1993).
In count two of her amended complaint, the plaintiff alleges that the defendant retaliated against her when it denied her request for short term disability benefits. The defendant asks that the court grant summary judgment in its favor on this count because the plaintiff cannot establish a causal connection between the filing of her complaint and the denial of benefits. Specifically, the defendant contends that the plaintiff cannot prove the nexus because the undisputed facts show that the defendant paid the benefits to the plaintiff two weeks before she filed the complaint which alleged that the benefits were withheld for a discriminatory purpose. The defendant's argument lacks merit.
The defendant correctly states that where the claimed retaliatory act occurs before the plaintiff engaged in the protected activity, the plaintiff cannot establish the factual connection. See DuBois v. New York, 966 F. Supp. 144, 148 (N.D.N.Y. 1997). Although it is true that the plaintiff did not file her discrimination claim alleging that the defendant withheld her benefits for a retaliatory purpose until after she began receiving benefits, the defendant's argument is flawed. The defendant fails to acknowledge that the plaintiff filed a number of discrimination claims before she filed her application for short term disability benefits. These earlier complaints of discrimination are adequate evidence, at this stage of the case, to show a causal connection between the complaints and the later delay in benefits. Therefore, summary judgment is not proper.
D. Retaliatory Termination Claim
In the third count of her operative complaint, the plaintiff alleges that the defendant terminated her employment in retaliation for her filing of discrimination complaints with the CHRO and EEOC. The defendant asks the court to grant summary judgment in its favor on this count because, it maintains, the plaintiff cannot show a causal connection between the filing of the complaints and the adverse employment action. It maintains that the plaintiff last filed a charge of discrimination in April 1995 and was not terminated until almost a year later in February 1996.
The defendant's recitation of the facts is incorrect. The record is clear that the plaintiff filed a complaint alleging discrimination in November 1995, only 3 months before she was terminated. The proximity in time between these two events is sufficient to establish the causal connection. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995)(causal connection found where the plaintiff was terminated *225 three months after making a complaint of sexual harassment).
Next, the defendant argues that it is entitled to summary judgment because it offered a legitimate, nondiscriminatory reason for terminating the plaintiff and the plaintiff failed to demonstrate that the reason was both false and that discrimination was the real reason. See doc. # 82, p. 28, citing St. Mary's, 509 U.S. at 515, 113 S. Ct. 2742.
Contrary to the defendant's assertion, the plaintiff need not prove that the defendant's proffered reason was false and that discrimination was the real reason that she was terminated. Rather, the plaintiff need only show that retaliation was a motivating factor in the decision to terminate her employment. The Second Circuit recently explained the source of this confusion:
Though there are sentences in some opinions to the effect that a Title VII plaintiff must prove "both that the [defendant's proffered reason] was false and that discrimination was the real reason," St. Mary's, 509 U.S. at 515, 113 S. Ct. at 2752, these decisions do not require a finding of [falsity] in addition to a finding of discrimination; they make quite the different point that a Title VII plaintiff may not prevail by establishing only [falsity], but must prove, in addition, that a motivating reason was discrimination. See id. at 511[, 113 S. Ct. 2742].... The opportunity presented to the plaintiff under the paradigm to show the employer's proffered reason false is designed simply to sharpen the inquiry into the elusive factual question of intentional discrimination. The consequence of a plaintiff engaging this opportunity and demonstrating falsity is that it may (and, in most circumstances, will) advance her greater enterprise of showing discriminatory intent. Thus properly understood, as the paradigm hones and sequentially narrows the factual inquiry, it extends to the plaintiff the opportunity to demonstrate that the proffered reason was false, as one means to support her ultimate burden of proving discrimination.
Bickerstaff, 196 F.3d at 447 (citations and internal quotation marks omitted). Put another way, "[t]he plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the `motivating' factors." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995).
Application of the paradigm to the instant case reveals that the plaintiff has established her prima facie case of retaliation and the defendant has satisfied its burden of production by proffering a legitimate reason for terminating the plaintiff's employment. The court must then determine whether the plaintiff has presented sufficient evidence from which a rational trier of fact could infer that she was the victim of retaliation. See Bickerstaff, 196 F.3d at 447. In making this determination, the court must consider the evidence as a whole and not in a piecemeal fashion. See id. at 448.
The court concludes that the plaintiff has offered sufficient evidence to support an inference that retaliation was a motivating factor in the defendant's decision to terminate her employment. A rational jury could credit the evidence that she was terminated only three months after filing her last complaint. In addition, the jury could infer retaliation from the evidence that shows the plaintiff suffered a more severe form of discipline than at least one other employee who was accused of engaging in serious misconduct. These circumstances are sufficient to defeat the defendant's motion for summary judgment.
IV. CONCLUSION
The Defendant's Motion for Summary Judgment should be GRANTED as to *226 Count One and DENIED as to Counts Two and Three.
Either party may seek the district judge's review of this recommendation. See 28 U.S.C. § 636(b)(written objections to ruling must be filed within ten days after service of same); Fed.R.Civ.P. 6(a), 6(e) 7 72; Rule 2 of the Local Rules for United States Magistrate Judges, United States District Court for the District of Connecticut; Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992)(failure to file timely objection to Magistrate Judge's recommended ruling waives any further review of the ruling).
March 10, 2000.
NOTES
[1] In considering this motion for summary judgment, the court is mindful that the plaintiff is proceeding pro se. The court has read the pleadings as well as the plaintiff's other submissions in a liberal manner and construed them in the manner most favorable to the plaintiff. See, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
In response to the motion for summary judgment, the plaintiff submitted a Local Rule 9(c)2 statement (doc. # 89), a Statement of Material Facts as to Which There Can Be No Dispute (doc. # 87) and an affidavit (doc. # 88). Appended to her affidavit are a number of documents which she apparently obtained during discovery. Finally, she submitted two memoranda (doc. 86, 92). Although the plaintiff's submissions are in some places inartful, the court is persuaded that she understands the summary judgment process. See Vital v. Interfaith Medical Center, 168 F.3d 615, 620-21 (2d Cir.1999)(district courts must be sure that a pro se litigant is aware of obligations during the pendency of a motion for summary judgment as well as the possible consequences of the motion).
[2] The defendant disputes that the full-time motor route position was a promotion. See, infra at 222-23.
[3] Page 7 is a Status Change Form dated January 4, 1995 that relates to Richard Nevers. It states that Mr. Nevers was promoted from part-time driver to full-time motor route driver on January 30, 1995 at the same rate of pay.
Page 8 is another Status Change form. It indicates that Richard Nevers was promoted again on February 17, 1997. He was promoted from full-time motor route driver to a managerial position. (This promotion is not the focus of the plaintiff's complaint.)
On page 9 is a copy of a memorandum from Gary Edwards to the Stamford Motor Route Division dated November 1, 1995. It states that "[e]ffective immediately, Christine Jones will begin helping Richard Nevers supervise the Stamford Motor Routes until Debbie returns to work."
Page 10 is a copy of the August 1995 "Inside Edition" which is "A Newsletter for Advocate and Greenwich Times Employees." Handwritten on the first page is the following notation:
"My supervisor was fired after me[.] Tim Mann took her place on March 6, 1996[.] Deborah Schmidel was fired[.] They did fight her unemployment either."
The plaintiff also highlighted the following:
Tim Mann, Motor Route Driver, began working for our company in January 1994 but is a seasoned newspaper carrier with almost six years of experience. Tim was nominated for his superior performance in June when he covered for his supervisor, Christine Jones, while she was out on maternity leave. Tim was quickly trained in all aspects of her job which included learning 13 district motor routes, the department computer system, and several daily reports. Gary Edwards says that, "Tim did an excellent job on all of the above, in addition to following through on any problems. A motor route manager's success can be measured with a delivery per complaint ratio for the district."
Page 11 is a copy of a page entitled "Welcome Aboard." The plaintiff circled "Motor Route Driver" next to Tim Mann's name.
Page 12 is an original of a handwritten and undated note that says, "Rich/Chris See me to discuss an `RDBA'". It is signed "L." The plaintiff does not explain the significance or the meaning of this note.
Page 13 is a copy of a right to sue letter dated September 10, 1996.
Page 14 is mostly illegible, but the bottom portion reads, "Leona Good work!! This customer called to compliment you on your good, on time delivery service. She is very happy with you!!" It is signed, "Gary."
Page 15 is a letter from a customer to the Office Manager of the Circulation Department at The Advocate complimenting the plaintiff on a job well done.
[4] The plaintiff also fails to establish proof giving rise to an inference of racial or gender discrimination. Although the court's determination that the plaintiff failed to show she suffered an adverse employment action is dispositive of the plaintiff's first count, this point is worthy of brief discussion.
A primary method by which a court can infer discriminatory animus is if the person who received the sought after position was not a member of the plaintiff's class. See Harmon v. Runyon, No. 96 Civ. 6080, 1997 WL 786383 (S.D.N.Y. Dec. 19, 1997) (plaintiff failed to show that she was treated differently from similarly situated employees outside her class where three other members of her class were not subjected to same adverse employment action); Samuels v. New York State Dept. of Correctional Servs., No. 94 Civ. 8645, 1997 WL 253209 (S.D.N.Y. May 14, 1997)(black female plaintiff failed to establish an inference of racial discrimination where two out of four promotions she complained of were given to black males). The fact that the position which the plaintiff sought was filled by a member of her same protected class undercuts her claim of racial discrimination.
Moreover, the plaintiff fails to offer any evidence that she was treated differently because she is a woman. Indeed, the defendant offers evidence that three of the ten motor route drivers were women. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2575529/ | 98 F.Supp.2d 1344 (2000)
Pamela LEWIS, Plaintiff,
v.
CITY OF ST. PETERSBURG, Defendant.
No. 8:00-CV-00128-T-17A.
United States District Court, M.D. Florida, Tampa Division.
May 3, 2000.
*1345 Jean A. Laws, Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, Stuart, FL, for plaintiff.
William N. Drake, Jr., City of St. Petersburg, St. Petersburg, FL, for defendant.
ORDER
KOVACHEVICH, Chief Judge.
THIS CAUSE is before the Court on:
(1) Defendant, City of St. Petersburg's, Motion to Dismiss or for Summary Judgment, (Dkt.4), filed on January 25, 2000;
(2) Plaintiff, Pamela Lewis', Response in Opposition, (Dkt.22), filed on March 10, 2000;
(3) Defendant, City of St. Petersburg's, Motion for Summary Judgment, (Dkt.16), filed on February 25, 2000; and
(4) Plaintiff, Pamela Lewis', Response in Opposition, (Dkt.22), filed on March 10, 2000.
I. Background
The following factual allegations are taken from Plaintiff's Fourth Amended Complaint, filed on January 20, 2000. (Dkt.2). Plaintiff is the duly appointed personal representative of the Estate of TyRon Lewis, deceased. Plaintiff brought this suit pursuant to Florida's Wrongful Death Act, Fla. Stat. § 768.16-768.27, as the personal representative of the Estate of TyRon Lewis, a deceased minor. The survivors of TyRon Lewis are listed as: Pamela Lewis, the mother of TyRon Lewis; Joe Hawkins, the father of TyRon Lewis; and Aaron M. White, the surviving minor child of TyRon Lewis.
According to Plaintiff, on or about October 24, 1996, St. Petersburg Police Officers, James Knight and Sandra Minor, shot decedent TyRon Lewis through the windshield of a motor vehicle being operated by decedent TyRon Lewis. At the time Officers Knight and Minor shot TyRon Lewis, TyRon Lewis was seated in the driver's seat of a motor vehicle that had stopped at the intersection of 18th Avenue South and 16th Street South in St. Petersburg, Florida. The shots fired by Officers Knight and Minor resulted in the death of TyRon Lewis.
Plaintiff alleges that Officers Knight and Minor were acting within the scope of *1346 their employment with the St. Petersburg Police Department when they fired shots at decedent TyRon Lewis. According to Plaintiff, Officers Knight and Minor, as well as all other St. Petersburg Police Officers, owed a duty to decedent TyRon Lewis to operate their firearms, and conduct themselves, in a reasonable manner in attempting to stop and/or arrest decedent TyRon Lewis. Plaintiff states that Officers Knight and Minor breached the duty of care owed to decedent TyRon Lewis by discharging their firearms through a vehicle windshield and by otherwise conducting themselves in a careless and negligent manner. The death of TyRon Lewis, according to Plaintiff, was the result of excessive force used by the St. Petersburg Police Department. Plaintiff states that Defendant and the St. Petersburg Police Department breached the duty owed to TyRon Lewis, by failing to properly train law enforcement officers on how to handle a crisis management situation and how to properly use force in a crisis management situation.
In addition to claiming wrongful death under Florida Statutes, Plaintiff alleges that Defendant violated 42 U.S.C. § 1983. Plaintiff states that as a result of the single instance of misconduct performed by Defendant, it can be inferred that a departmental policy exists which condones the use of excessive force by law enforcement officers. The departmental policy of condoning excessive force, according to Plaintiff, permitted and tolerated a pattern and practice of using excessive force against the public by law enforcement officers. Plaintiff states that a de facto policy and custom of tolerating and condoning the use of excessive force has been created by the St. Petersburg Police Department. According to Plaintiff, the policy of condoning the use of excessive force was continued after the death of TyRon Lewis through Defendant's failure to investigate, prosecute, and discipline Officers Knight and Minor, and all other St. Petersburg Police Officers involved. Plaintiff states that as a direct and proximate result of the actions taken by Defendant and the St. Petersburg Police Department, TyRon Lewis suffered severe bodily injury, which resulted in his death.
II. Standards of Review
A district court should not dismiss a complaint unless it appears, "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). To survive a motion to dismiss, a plaintiff may not merely "label" his or her claims. See Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum, the Federal Rules of Civil Procedure require a "short and plain statement of the claim" that "will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." See Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)).
In deciding a motion to dismiss, the court may only examine the four corners of the plaintiff's complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D.Fla.1995). "The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). In addition, a court must accept the plaintiff's well pled facts as true and construe the complaint in the light most favorable to the plaintiff. See Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla. 1995). However, when on the basis of a dispositive issue of law, no construction of the factual allegations of the complaint will support the cause of action, dismissal of the complaint is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991).
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and *1347 that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue of material fact' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of the case with respect to which that party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of genuine issues of material fact. See id. That burden of showing a basis for a motion can be discharged by "showing ... that there is an absence of evidence to support the non-moving party's case." See id. at 323, 325, 106 S.Ct. 2548.
Issues of fact are "`genuine' only if a reasonable jury considering the evidence presented could find for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which will affect the outcome of the trial under governing law. See id. at 248, 106 S.Ct. 2505. In determining whether a material fact exists, the court must consider all the evidence in a light most favorable to the non-moving party. See Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. See Hayden v. First Nat'l Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir., 1979) (quoting Gross v. Southern Railway Co., 414 F.2d 292, 297 (5th Cir.1969)).
Although factual disputes preclude summary judgment, the "mere possibility that factual disputes may exist, without more, is not sufficient to overcome a convincing presentation by the party seeking summary judgment." See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). When a party's response consists of "nothing more than a repetition of his conclusional allegations," summary judgment is not only proper but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981).
III. Discussion
A. State Law Claims
Defendant states that dismissal is warranted because Plaintiff has failed to allege a sufficient factual basis for the state law claims contained within Plaintiff's Fourth Amended Complaint. According to Defendant, Plaintiff's state law allegations of negligent use of force, negligent training, and other unspecified negligent actions must be dismissed because: (1) Florida law does not recognize a duty of care with respect to how a police officer fires a weapon; (2) Florida law does not recognize a cause of action for negligent use of excessive force; (3) a general immunity exists for discretionary police power functions involving law enforcement; (4) no common law duty exists for the exercise of discretionary police power functions; (5) no common law duty exists for the training of police officers; (6) police training is within the discretionary, judgmental, planning-level activities protected by state law immunities; and (7) Plaintiff's statement that police officers were "conducting themselves in a careless and negligent manner" does not state sufficiently the conduct alleged to be negligent.
*1348 Florida Statute § 768.19, in pertinent part, states:
When the death of a person is caused by the wrongful act, negligence, default, breach of contract, or warranty of any person ... and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person ... that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured ....
Under Florida law, the elements necessary to state a claim of negligence are duty, breach, causation, and damages. See Paterson v. Deeb, 472 So.2d 1210, 1214 (Fla. 1st DCA 1985). If even one of the elements of the negligence cause of action are missing, the entire cause of action must fail. See Cato v. West Florida Hospital, Inc., 471 So.2d 598, 600 (Fla. 1st DCA 1985).
Generally, the State of Florida and its subsidiaries are immune from tort liability. Fla. Const., Art. X, § 13. However, Florida Statute § 768.28, expressly waives sovereign immunity in specific circumstances. Florida Statute § 768.28 states, in pertinent part, that:
(1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act....
(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment.
While Florida Statute § 768.28, waives sovereign immunity on a broad basis, Florida courts have recognized two exceptions to that waiver: (1) the discretionary governmental functions exception; and (2) the public duty doctrine exception. See Farabee v. Rider, 995 F.Supp. 1398, 1403 (M.D.Fla.1998)(citing Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla.1979)); Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912, 918-21 (Fla.1985); Seguine v. City of Miami, 627 So.2d 14, 16-18 (Fla. 3d DCA 1993). If either the discretionary governmental function exception or the public duty doctrine exception apply, the governmental entity is immune from liability. See id.
The discretionary governmental function exception relates directly to the separation of powers doctrine and "recognizes that there are certain policy-making, planning, or judgmental governmental functions which are inherent in the act of governing and, therefore, ought not be subjected to scrutiny by judge or jury because it would inappropriately entangle the courts in fundamental questions of planning and policy." Seguine, 627 So.2d at 16; see also Kaisner v. Kolb, 543 So.2d at 732, 737 (Fla.1989); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla.1979). A four-part test has been adopted by the Florida Supreme Court to determine whether a governmental action is discretionary. A governmental action is discretionary if: (1) the action involves a basic governmental policy, program, or objective; (2) the action is "essential to the realization or accomplishment of that policy, program, or *1349 objective"; (3) the action "require[s] the exercise of basic policy evaluation[s], judgment[s], and expertise on the part of the governmental agency involved"; and (4) the "governmental agency involved possess[es] the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision." Trianon Park Condominium Ass'n, 468 So.2d at 918.
Courts have, in very limited circumstances, recognized that a governmental entity could be held liable in tort for actions taken by law enforcement officers. See Seguine, 627 So.2d at 18. Governmental entities may be liable for tortuous conduct committed by a law enforcement officer against an individual when that individual is in the physical custody of law enforcement after a temporary detention or arrest. See id. This law enforcement duty of care has been recognized, and limited, to situations where a law enforcement officer deprives an individual of the opportunity to make decisions for himself and, therefore, the individual cannot protect himself from the harmful result of negligent police orders. See id. (citing Kaisner, 543 So.2d at 734, 737-38 (requiring a detained motorist to remain at a location which places the individual in great danger, and results in injury to the individual)).
The public duty doctrine exception states that a governmental entity is not liable for the commission of a tort for breaching a duty owed to the public at large. Seguine, 627 So.2d at 17. In order to be liable for the commission of a tort, the government must have breached a specific duty owed directly to an individual, not the community. Id. The public duty doctrine exception is based on the "need to prevent the chilling of the law enforcement processes, as well as the availability of other remedies against private parties who initially created the danger which caused the damage." Id. (citing Trianon Park Condominium Ass'n, 468 So.2d 912 (Fla. 1985)).
"How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance which there has never been a common law duty of care." Trianon Park Condominium Ass'n, 468 So.2d at 919. Judges, police officers, and prosecutors are among the most notable public officials permitted to use discretionary power to enforce compliance with the laws of the state. See id. "The fundamental police function in enforcing the criminal law would be unduly hampered if law enforcement decisions were generally subject to after-the fact judicial review through private tort litigation...." See id.
i. Negligent Use of Excessive Force
In the case at hand, Plaintiff states that Officers Knight and Minor negligently used excessive force against decedent TyRon Lewis by discharging their firearms into a vehicle occupied by TyRon Lewis. Plaintiff states that the death of decedent TyRon Lewis was the result of the alleged negligent use of excessive force committed by Officers Knight and Minor. After considering the four corners of Plaintiff's Fourth Amended Complaint in a light most favorable to Plaintiff, this Court finds that all allegations in Plaintiff's Fourth Amended Complaint relating to negligent use of excessive force must be dismissed.
A presumption of good faith has traditionally surrounded a law enforcement officer's use of force in making an arrest. See City of Miami v. Sanders, 672 So.2d 46, 47 (Fla. 3d DCA 1996). A law enforcement officer is ordinarily liable only for damages that have resulted from a clear use of excessive force. See id. (citing Jennings v. City of Winter Park, 250 So.2d 900 (Fla. 4th DCA 1971)). When a law enforcement officer uses excessive force against an individual, that law enforcement officer is liable for damages under *1350 a claim of battery. See id. (citing Mazzilli v. Doud, 485 So.2d 477, 481 (Fla. 3d DCA 1986)). Under a claim of battery, a law enforcement officer's actions should be analyzed to determine if the amount of force used by the law enforcement officer was reasonable under the circumstances. See id.; see also City of Miami v. Albro, 120 So.2d 23 (Fla. 3d DCA 1960). When a law enforcement officer believes that the use of force is "necessary to defend himself or another from bodily harm while making [an] arrest," the law enforcement officer has a complete defense to claims of alleged use of excessive force. Fla. Stat. § 776.05(1).
Plaintiff, in the case at hand, alleges that Defendant, through the actions of Officers Knight and Minor, "negligently used excessive force" against decedent TyRon Lewis. As the Third Circuit Court of Appeal for the State of Florida stated in City of Miami v. Sanders, 672 So.2d at 47, "a suit for a police officer's use of excessive force involves the intentional tort of battery." The commission of a battery against an individual cannot be negligently done. See id. Negligent actions are unintentional, while the commission of a battery is intentional. "[I]t is not possible to have a cause of action for `negligent' use of excessive force because there is no such thing as the `negligent' commission of an `intentional' tort." See id. at 48. To hold otherwise would place a "chilling effect on law enforcement efforts, and would render meaningless the defense under [Florida Statute] Section 776.05(1)." Id. (citing Seguine v. City of Miami, 627 So.2d 14, 19 (Fla. 3d DCA 1993)).
While negligence claims may be brought against a governmental entity, such claims must be based on something besides the use of force in making or attempting to make a lawful arrest. See City of Miami v. Sanders, 672 So.2d at 48. "[T]he sole basis and limit of an arresting officer's liability in making a lawful arrest is founded on a claim of battery, in that excessive force was involved in making the arrest. The concept of a cause of action for `negligent' excessive force is an oxymoron..." See id. Therefore, this Court finds that all claims contained within Plaintiff's Fourth Amended Complaint relating to negligent use of excessive force must be dismissed.
ii. Negligent Decision to Use a Firearm
While Plaintiff's Fourth Amended Complaint does not directly allege a claim for negligence based on Officer Knight and/or Minor's negligent decision to use a firearm, the Court will construe Plaintiff's apparent claims that Defendant, through Officers Knight and Minor, negligently decided to use a firearm in the process of attempting to arrest decedent TyRon Lewis as a separate claim for negligence.
In order to state a claim for negligence, under Florida law, a plaintiff must allege the existence of a duty, a breach of that duty, causation, and damages resulting from the breach. See Miller By and Through Miller v. Foster, 686 So.2d 783, 783-84 (Fla. 4th DCA 1997). As stated previously, Plaintiff's claims of negligent infliction of an intentional tort must be dismissed. Plaintiff's Fourth Amended Complaint claims that Defendant, through Officers Knight and/or Minor, acted negligently by intentionally deciding to discharge their firearm[s] at decedent TyRon Lewis. Plaintiff's Fourth Amended Complaint does not allege that Officers Knight and/or Minor negligently handled their firearm or committed any other act of negligence with regard to the intentional decision to discharge their firearm[s]. As Plaintiff has, again, alleged that Defendant negligently committed an intentional tort, this Court must, again, find that dismissal is appropriate.
Under the facts alleged, even if Plaintiff had properly alleged a cause of action for negligent use of a firearm against Defendant, this Court has no difficulty finding that Defendant is immune from Plaintiff's allegations under either *1351 the discretionary function doctrine or the public duty doctrine exceptions to the waiver of sovereign immunity, as contained in Florida Statute § 768.28. The alleged negligent and excessive actions performed by Officers Knight and Minor were taken to enforce criminal laws. Actions taken to enforce criminal laws are generally immune under the discretionary function doctrine and the public duty doctrine exceptions to the waiver of sovereign immunity, unless extenuating circumstances exist. See Trianon Park Condominium Ass'n, 468 So.2d at 918-21; Seguine, 627 So.2d at 18. Plaintiff, in the case at hand, has failed to allege the existence of any extenuating circumstances that would remove Defendant's immunity.
Plaintiff has failed to show the existence of any duty owed directly to decedent TyRon Lewis, as opposed to a duty owed to the public at large. Without a showing that Defendant owed any duty specifically to decedent TyRon Lewis, the government is immune from suit under the public duty doctrine exception to the waiver of sovereign immunity. A relationship establishing a duty of care owed to an individual has been recognized in situations where an officer arrests an individual and thereafter places that individual in a harmful situation. See Seguine, 627 So.2d at 18. In the situation where an individual is arrested or in law enforcement custody, the individual's right to make decisions and to act in a manner designed to promote personal safety have been taken away, and the arresting law enforcement officer owes the arrested individual a duty of due care. See id. Decedent TyRon Lewis was not under arrest at the time Officers Knight and/ or Minor allegedly discharged their firearms.
Under Florida law, a law enforcement officer is:
Justified in the use of any force:
(1) Which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest;
(2) When necessarily committed in retaking felons who have escaped; or
(3) When necessarily committed in arresting felons fleeing from justice. However, this subsection shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and:
(a) the officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or
(b) The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.
Fla. Stat. § 776.05
The decision made by Officer Knight and/or Officer Minor to use deadly force against decedent TyRon Lewis is exactly the type of discretionary decision which is protected by governmental immunity. On a daily basis, law enforcement officers encounter situations that require split second decisions to be made. A decision concerning whether to use deadly force is one of those split-second decisions that must be made. A law enforcement officer's decision to use deadly force, like a decision to provide or not provide police protection, is a discretionary decision that rests at the very heart of an officer's ability to protect all members of a society, including himself and other officers. See id. (stating the four prong requirement for classifying an action as discretionary); Everton v. Willard, 468 So.2d 936 (Fla.1985)(decision to arrest is discretionary); Wong v. City of Miami, 237 So.2d 132 (Fla.1970)(decision to provide police protection is discretionary); Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979)(decision to provide police protection is discretionary).
*1352 After viewing Plaintiff's Fourth Amended Complaint in a light most favorable to Plaintiff, this Court finds that all claims relating to the alleged negligent use of a firearm must be dismissed. Further, even if dismissal was not warranted, this Court finds that Defendant is immune under both the public duty doctrine exception and the discretionary governmental function exception. Defendant did not owe a duty of care individually to decedent TyRon Lewis and the decision to use deadly force was a discretionary decision. As such, Plaintiff's allegations relating to the alleged negligent decision to discharge a firearm must be dismissed.
iii. Negligent Training
Plaintiff also alleges that Defendant acted negligently when training Officers Knight and Minor. In particular, Plaintiff states that Defendant "breached its duty to TyRon Lewis, by failing to properly train its officers in how to handle crisis management situation [sic] and failing to train its officers regarding the proper use of force in a crisis management situation." (Dkt.2).
Under the law previously discussed by the Court, Defendant requests that this Court dismiss Plaintiff's allegations concerning negligent training. Defendant states that decedent TyRon Lewis was not owed a duty of care and that the decision on how and to what extent to train law enforcement officers is a discretionary decision which is immune from suit.
As this Court previously discussed, in order to properly allege a cause of action for negligence against a governmental entity, a Plaintiff must allege the existence of a duty, a breach of that duty, causation, and damages. See Miller v. Foster, 686 So.2d 783, 783-84 (Fla. 4th DCA 1997). Once a plaintiff has alleged the elements necessary for a claim of negligence against a governmental entity, a plaintiff must show that the governmental entity has waived sovereign immunity as to that claim. Florida courts have acknowledged two exceptions to the waiver of governmental immunity: (1) the discretionary governmental functions exception; and (2) the public duty doctrine exception. See Farabee, 995 F.Supp. at 1403; Trianon Park Condominium Ass'n, 468 So.2d at 918-21; Seguine, 627 So.2d at 16-18. If either the discretionary governmental function or the public duty doctrine exception applies, the governmental entity is immune from liability. See id.
Plaintiff, in the case at hand, has sufficiently alleged a claim of negligence against Defendant with regard to allegations of negligent training contained within Plaintiff's Fourth Amended Complaint. Within the Fourth Amended Complaint, Plaintiff states that Defendant and Officers Knight and Minor "breached [their] duty to TyRon Lewis, by failing to properly train officers in how to handle a crisis management situation and failing to train its officers regarding the proper use of force in a crisis management situation." Plaintiff's Fourth Amended Complaint sufficiently states that Defendant had a duty to train law enforcement officers, that Defendant breached that duty, that Defendant proximately caused the breach and the resulting damages, and that damages existed. Therefore, Plaintiff has sufficiently stated a cause of action for negligent training within the Fourth Amended Complaint, to withstand Defendant's Motion to Dismiss.
However, even though Plaintiff's Fourth Amended Complaint facially satisfies the requirements for pleading a cause of action for negligent training, this Court finds that Defendant is immune under the public duty doctrine exception to the waiver of sovereign immunity, as contained in Florida Statute § 768.28. Plaintiff's Fourth Amended Complaint alleges that Defendant owed a duty to decedent TyRon Lewis to properly train law enforcement officers. However, this Court finds nothing to support Plaintiff's allegations that Defendant owed a specific duty to decedent *1353 TyRon Lewis to properly train law enforcement officers.
The public duty doctrine exception states that a governmental entity is not liable for the commission of a tort for breaching a duty owed to the public at large. Seguine, 627 So.2d at 17. In order to be liable for the commission of a tort, the government must have breached a specific duty owed directly to an individual, not the community at large. Id. The public duty doctrine exception is based on the "need to prevent the chilling of the law enforcement processes, as well as the availability of other remedies against private parties who initially created the danger which caused the damage." Id. (citing Trianon Park Condominium Ass'n, 468 So.2d 912 (Fla.1985)). While Plaintiff's Fourth Amended Complaint facially contains sufficient allegations to show the existence of some duty owed to the public at large by Defendant, which is sufficient to withstand Defendant's Motion to Dismiss, Plaintiff's Fourth Amended Complaint does not establish, and the Court is unable to find law supporting such a finding under the circumstances encountered in this case, that Defendant owed a specific duty to decedent TyRon Lewis to properly train law enforcement officers.
As this Court is unable to find that Defendant owed any specific duty to decedent TyRon Lewis, Defendant is immune from Plaintiff's claims of negligent training. As such, this Court finds that dismissal of all claims relating to the alleged negligent training of law enforcement officers must be dismissed.
iv. General Claims of Negligence
In addition to claiming that Defendant negligently used excessive force, negligently decided to use a firearm, and negligently trained law enforcement officers, Plaintiff's Fourth Amended Complaint states that Defendant committed other acts of negligent conduct. Defendant requests that this Court dismiss Plaintiff's claims relating to other acts of negligent conduct because Plaintiff has failed to sufficiently identify those acts.
In order to state a claim of negligence under Florida law, it is necessary to allege the existence of a duty, breach of that duty, causation, and damages resulting from the breach. See Miller By and Through Miller, 686 So.2d at 783-84. While Plaintiff alleges, within the Fourth Amended Complaint, that Defendant committed other acts of negligence than those listed in the Fourth Amended Complaint, Plaintiff has failed to allege the existence of any of the elements for negligence with regard to those alleged other negligent actions committed by Defendant. As Plaintiff has failed to allege the existence of a duty, a breach of that duty, causation, and damages regarding the other alleged negligent actions committed by Defendant, this Court finds that all claims related to other negligent actions committed by Defendant must be dismissed.
B. Federal Claim
In addition to the state law claims asserted within Plaintiff's Fourth Amended Complaint, Plaintiff asserts that Defendant has violated 42 U.S.C. § 1983. Plaintiff states that Defendant deprived decedent TyRon Lewis, under color of state law, of rights, privileges, and immunities secured to decedent TyRon Lewis by the Constitution and laws of the United States. Plaintiff states that Defendant's alleged negligent use of excessive force and negligent law enforcement training evidences Defendant's policy of condoning the use of excessive force. According to Plaintiff, Defendant's departmental policy of condoning excessive force permitted and tolerated the existence of a pattern and practice of using excessive force by law enforcement officers. Plaintiff states that the alleged use of excessive force against individuals, including decedent TyRon Lewis, was "condoned and permitted" by Defendant. (Dkt.2). Plaintiff's Fourth Amended Complaint also states that Defendant was deliberately indifferent to the constitutional *1354 rights of individuals that Defendant was charged with protecting through "its failure to investigate, prosecute, [and] discipline the subject officers who employed such improper acts" as using excessive force. (Dkt.2).
Defendant requests that this Court dismiss Plaintiff's allegations relating to an alleged violation of 42 U.S.C. § 1983, because Plaintiff's state law allegations of negligence do not establish a federal right or claim. Further, Defendant states that there is no respondeat superior liability for the alleged negligence committed by law enforcement officers.
In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the United States Supreme Court held that a federal court may not apply "heightened pleading standards" in a section 1983 action. As a result of the U.S. Supreme Court's finding in Leatherman, section 1983 actions are held to the same pleading standards as any other action. See Leatherman, 507 U.S. at 168, 113 S.Ct. 1160. Federal Rule of Civil Procedure 8(a)(2) states that "a claim for relief shall contain a short and plain statement of the claim showing that the pleader is entitled to relief."
The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a "short and plain statement of the claim" that will give [the defendant] fair notice of what the [p]laintiff's claim is and the grounds upon which it rests.
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the depravation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purpose of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
In an action against a governmental entity, liability for a violation of 42 U.S.C. § 1983, may not be premised only on a theory of respondeat superior. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1503 (11th Cir.1985). However, governmental entities may be liable under 42 U.S.C. § 1983, if the governmental entity deprives individuals of civil rights pursuant to a governmental policy or custom. See Mandel v. Doe, 888 F.2d 783, 791 (11th Cir.1989). A local government may be held liable under 42 U.S.C. § 1983, "when execution of a government's policy or custom, whether made by its lawmakers or by those whose ediets or acts may fairly be said to represent official policy, inflicts the injury...." Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
In order to show liability under 42 U.S.C. § 1983, a single action taken by an individual with the authority to make policy may be sufficient to show official policies or customs, under certain circumstances. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). However, to withstand a motion for summary judgment, a plaintiff may be required to show other occurrences of the activity alleged to be the policy of the governmental entity. See Searer v. Wells, 837 F.Supp. 1198, 1201 (M.D.Fla.1993). In order to establish a policy or custom sufficient to impose municipal liability, it is generally necessary to show a persistent and widespread practice. See Burnette v. Ciolino, 750 F.Supp. 1562, 1564 (M.D.Fla.1990). In addition, a plaintiff must show that the *1355 municipality had actual or constructive knowledge of the acts complained of. See id. Random acts or isolated incidents are normally not sufficient to show a policy or custom. See Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986).
Plaintiffs Fourth Amended Complaint states that the alleged negligent use of excessive force against decedent TyRon Lewis, and alleged negligent training of law enforcement officers, establishes the existence of Defendant's departmental policy to condone the use of excessive force. Plaintiff states that the departmental policy of permitting the use of excessive force against individuals, including decedent TyRon Lewis, allowed a pattern and practice of excessive force to be used against the public by law enforcement. As Defendant tolerated this alleged pattern and practice of using excessive force, according to Plaintiff, Defendant has enacted a de facto policy and custom of using excessive force. Plaintiff states that Defendant was deliberately indifferent to the constitutional rights of individuals, including decedent TyRon Lewis, by failing to properly investigate, prosecute, and discipline law enforcement officers who employed improper acts.
In deciding Defendant's Motion to Dismiss, this Court must only consider, in a light most favorable to Plaintiff, the four corners of Plaintiff's Fourth Amended Complaint. After considering the allegations contained within Plaintiff's Fourth Amended Complaint, this Court finds that Plaintiff has sufficiently alleged a violation of 42 U.S.C. § 1983, to withstand a motion to dismiss. Plaintiff has alleged that Defendant: (1) acted under color of state law; and (2) deprived decedent TyRon Lewis of a right, privilege, or immunity secured by the Constitution or laws of the United States. Plaintiff alleges that Defendant acted under color of state law, pursuant to an official policy, custom, and practice of using excessive force and failing to train law enforcement officers.
As Defendant's Motion to Dismiss Plaintiff's allegations concerning a violation of 42 U.S.C. § 1983, must be denied, this Court will now address Defendant's alternative Motion for Summary Judgment. As this Court previously stated, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Issues of fact are "`genuine' only if a reasonable jury considering the evidence presented could find for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
After considering, the pleadings, affidavits, admissions, answers to interrogatories, and relevant case law, this Court finds that Defendant's Motion for Summary Judgment, as to Plaintiff's 42 U.S.C. § 1983, claim, must be granted. The Court is satisfied that no genuine issue of material fact exists as to the liability of Defendant under 42 U.S.C. § 1983. This cause of action was originally filed in this Court in Case No. 8:97-CV-2854-T-17, in 1997. On February 25, 1998, Plaintiff voluntarily dismissed the action contained in Case No. 8:97-CV-2854-T-17. After voluntarily dismissing the federal action, Plaintiff re-filed the cause of action in state court on March 28, 1998. On December 22, 1999, Defendant was served with Plaintiff's Fourth Amended Complaint, which once again, alleged a federal cause of action. Defendant removed the state court action on January 20, 2000, to this Court. As a result of voluntary dismissal, re-filing, and amendment of complaints, this cause of action has been pending, in some fashion, since 1997. This Court finds that as a result of the manner in which this case has progressed, adequate time for discovery to support Defendant's Motion for Summary Judgment and Plaintiff's response, has been provided to both parties. In addition, *1356 even if adequate time for discovery was not provided, Plaintiff failed to object to Defendant's Motion for Summary Judgment by stating that adequate time for discovery was not provided. As adequate time for discovery was provided to the parties on this issue, this Court will address Defendant's Motion for Summary Judgment.
In support of Plaintiff's 42 U.S.C. § 1983, claim, Plaintiff states that one incident of alleged negligent use of excessive force by Officers Knight and Minor against decedent TyRon Lewis establishes Defendant's policy and/or custom of violating individuals protected constitutional rights. However, after viewing all of the evidence submitted, the Court finds that the alleged negligent use of excessive force against decedent TyRon Lewis was an isolated incident that cannot be said to create a custom or widespread practice of permitting and condoning the use of excessive force by law enforcement officers.
In addition to claiming that Defendant violated decedent TyRon Lewis' constitutional rights by using excessive force, Plaintiff claims that Defendant violated decedent TyRon Lewis' constitutional rights by failing to adequately investigate and discipline officers who have committed other acts of excessive force. (Dkt.22). Plaintiff has failed to submit anything to this Court to support this conclusory allegation. In opposition to summary judgment, Plaintiff submitted one affidavit. (Dkt.23). The affidavit submitted in opposition to summary judgment does not address the investigatory or disciplinary policies of Defendant, but instead merely addresses the alleged negligent use of excessive force committed by Officers Knight and Minor. As Plaintiff has failed to provide any evidence to support this allegation, the Court finds that summary judgment is appropriate. Accordingly, it is
ORDERED that Defendant, City of St. Petersburg's, Motion to Dismiss, (Dkt.4), be: GRANTED as to Plaintiff's state law claims alleging "unspecified acts of negligence"; be GRANTED as to Plaintiff's state law claims alleging "negligent use of excessive force"; be GRANTED with prejudice as to Plaintiff's state law claims alleging "negligent training"; and be DENIED as to Plaintiff's federal law claims alleging a violation of 42 U.S.C. § 1983. Defendant's alternative Motion for Summary Judgment, (Dkt.4), be GRANTED as to Plaintiff's federal claims alleging a violation of 42 U.S.C. § 1983; and be DENIED as moot as to all other claims. Defendant's Motion for Summary Judgment, (Dkt.16), be DENIED as moot. The Clerk of the Court be DIRECTED to enter Judgment as to Plaintiff's federal claims, brought under 42 U.S.C. § 1983, and dismiss all other claims consistent herewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3985437/ | While, in the case where a metropolitan district embraces exactly the same territory as a city, the purpose of combining the resources of various towns and cities does not appear, yet from a close study of the act that purpose is still apparent, in that water districts thereunder may pool their resources and combine for the performance of municipal functions too great for any singly to undertake.
Moreover, holding as I have that a public entity or agency with power to exercise one or more proprietary municipal functions is not a municipal corporation as meant by article 14 where it has not the power locally to legislate or govern in the manner characteristic and traditionally thought of as the primary purpose of municipal corporations, I see nothing which has been urged which prevents the Legislature from authorizing such an entity as is contemplated by the ordinance before us in this case to be formed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714925/ | 518 S.W.2d 243 (1975)
Faye Lois TURNER, Appellant,
v.
The STATE of Texas, Appellee.
No. 49287.
Court of Criminal Appeals of Texas.
January 29, 1975.
*244 Russell T. Van Keuren, Houston, for appellant.
Oliver S. Kitzman, Dist. Atty., Hempstead, Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of murder with malice aforethought; the punishment, imprisonment for ten years.
The appellant was tried before a jury upon the indictment in this cause and the jury returned a verdict of guilty of murder without malice; however, the jury deadlocked on the issue of punishment and a mistrial was declared. At the trial from which this appeal arose, a different jury found appellant guilty of murder with malice.
The appellant argues that she has been twice put in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution of the United States. The Fifth Amendment's double jeopardy clause has been applied to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707. The question before us now is whether the appellant was acquitted by a jury in a former trial for the same offense for which she here stands convicted. We hold that she was so acquitted and reverse the judgment.
At the first trial the jury was instructed on the law of malice aforethought and then further instructed "that if the defendant in killing the deceased, if she did, was not prompted and did not act with malice aforethought, then you will find the defendant guilty of murder without malice." The jury's verdict stated "we, the jury, find the defendant guilty of murder without malice aforethought." Therefore, the issue of the ultimate fact of malice has been determined by a valid and final judgment of acquittal, and the appellant cannot be expected to "run the gantlet" a second time. Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469. Just as the issue of identity was resolved adversely to the State in Ashe v. Swenson, supra, the issue of malice was resolved adversely to the State in the instant case. See Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300; Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199; Galloway v. Beto, 5 Cir., 421 F.2d 284. See also the recent case of Pope v. State, Tex.Cr.App., 509 S.W.2d 593, where we held:
"The jury's guilty verdict at the first trial on the offense of intentional infliction of injury upon a child fourteen years of age or younger operated as an acquittal of the offenses of assault to murder with malice and without malice.... Under these circumstances, we conclude that there was prior jeopardy as to the offenses of assault to murder with malice and without malice."
The appellant could not validly be convicted of murder with malice aforethought. And, in the event of another trial, appellant cannot be convicted of any offense greater than murder without malice. Pope v. State, supra. To the extent that Hill v. State, 126 Tex. Crim. 79, 69 S.W.2d 409, and other cases may be in conflict with our holding herein, they are overruled.
In view of the disposition of this case on the ground of error discussed, the other grounds will not be considered.
The judgment is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1714943/ | 518 S.W.2d 928 (1975)
The STATE of Texas et al., Appellants,
v.
Bill BRYAN et al., Appellees.
No. 16411.
Court of Civil Appeals of Texas, Houston (1st. Dist.).
January 30, 1975.
*930 Ogden Bass, Crim. Dist. Atty., A. B. Crowther, Jr., Asst. Crim. Dist. Atty., Angleton, for appellants.
No brief for appellees.
COLEMAN, Chief Justice.
This is an appeal by the condemning authority in a condemnation action from a judgment rendered on a jury verdict.
The State of Texas and the County of Brazoria, hereinafter referred to as the State, instituted an action to condemn 0.736 acre of land in Brazoria County. The State objected to the award made by the special commissioners and duly perfected their appeal to the District Court of Brazoria County, Texas. The commissioners' award was deposited by the State and was withdrawn by the landowner, hereinafter called Bill Bryan. The only issues at the trial were the value of the land taken and the damages to the 1.023 acre of the remaining property. The jury found that the value of the land taken was $15,000.00 and that the value of the remainder immediately before the taking was $70,000.00 but immediately after the taking was only $55,000.00.
The State contends that the trial court erred in not striking a juror for cause. During the voir dire examination of the jury panel it developed that Mrs. Jack E. Titus owned land in the vicinity of the condemned property. She stated that she had a value placed on her property and that while she would try to base her verdict on the evidence that she might hear from the witness stand, she would be "a little prejudiced about it" if she didn't think he was getting a proper amount because "if we put our land up for sale we would ask for, you know, a specified amount." The trial court refused to disqualify the witness, but there is nothing in the record to show that the State was thereby caused to take an objectionable juror.
The State contends that the record shows the juror was disqualified under Article 2134, Vernon's Annotated Texas Civil Statutes, as being a "person who has a bias or prejudice in favor of or against either of the parties." The testimony is susceptible to the construction that she had an opinion as to the value of the property in the area of the land being condemned, and that she had an opinion that the State should pay its full value. This does not show such bias or prejudice in favor of the condemnee as to disqualify the prospective juror. However, we think the juror might well have been excused from service on this case by reason of her opinion as to the value of the land. No reversible error appears, however, because the State has failed to show that it was denied a trial by a fair and impartial jury. It was not shown that the State was forced to try the cause before an objectionable juror, and it must be presented that the State was afforded a fair and impartial jury. City of Hawkins v. E. B. Germany & Sons, 425 S.W.2d 23 (Tex.Civ.App.Tyler 1968, writ ref'd n. r. e.).
*931 Upon direct examination the landowner testified to the effect that he was unwilling to sell his property, that he didn't want to get rid of it, that he couldn't do without the property, that the subject property was priceless to him, and that he could not replace the property for 50 cents a square foot. These statements were volunteered by the witness, and were not directly responsive to the questions asked. Objections were made to the statements and were sustained by the court. The court instructed the jury to disregard these statements. These statements were prejudicial to the State's rights in that they were calculated to and possibly did create sympathy for the landowner. We cannot say that the court's admonition to the jury was ineffective, or that the statements were so prejudicial as to require a reversal of the judgment. City of Mart v. Hasse, 281 S.W. 318 (Tex.Civ.App.Waco 1926, writ dism'd). The trial court did not err in refusing to grant the State's motion for mistrial.
The trial court permitted the appraisers who testified at the trial to state the sales price of various properties which they considered comparable to the property being taken. Each of the appraisers testified to a number of sales which he had considered in forming his estimate of the value of the property under consideration. The three appraisers who testified for Mr. Bryan, the landowner, based their opinion of the value of the property taken to some extent on sales of land made after the stipulated date of taking. In each instance the State objected to the testimony as to the sales price of these tracts on the ground that the necessary predicate had not been laid showing that said sales had not been influenced by the subject highway acquisition project, that is, that there was no project enhancement contained in the sales price of said sales. These objections were overruled. A 20-acre tract of land adjacent to the Bryan property was sold after the date of taking for $10,000.00 per acre. There was testimony by two of the Bryan appraisers that this land was in some respects comparable to the Bryan property. The State introduced evidence showing that by reason of the project the adjacent property owned by Mr. Idoux lost a relatively small frontage on Highway 35, but gained a much larger frontage on the access road to be constructed. The State then moved to strike the testimony of Mr. Powers, who had supported his opinion as to the value of the property taken with three comparable sales, one of which was the Idoux to Powers sale. This motion was denied.
In State v. Oakley, 356 S.W.2d 909 (Tex.1962), it was stated that testimony concerning comparable sales, which is inadmissible to prove the facts of such sales as evidence of the value of the property condemned is not hearsay in the true sense when offered to show a basis of the opinion value stated by an expert witness. The court said:
"... The better reasoned view, in our opinion, is that the testimony is proper in such latter capacity, where, as in the case at bar, the testimony is given by a professionally qualified appraiser whose qualifications, and the comparability of the sales to which he testifies, are not challenged...."
Evidence of sales of comparable land made subsequent to the date of condemnation may be admitted into evidence where the sales considered involve land that was not benefited or its market value affected by the public improvement causing the condemnation. City of Austin v. Bergstrom, 448 S.W.2d 246 (Tex.Civ.App. Austin 1969, writ ref'd n. r. e.); State v. Williams, 357 S.W.2d 799 (Tex.Civ.App. Texarkana 1962, writ ref'd n. r. e.).
In City of Fort Worth v. Corbin, 504 S.W.2d 828 (Tex.1974), the Supreme Court said:
"The determination of the cut off date for project enhancement must be made by the court and not by the jury. That ruling must often precede the determination of comparability of sales as well as *932 the admissibility of other evidence, which are matters for the judge to decide..."
The court also said:
"Sales of land outside the airport may be admissible under a proper exercise of the trial court's discretion, but dissimilarity of location and market is significant; the expert appraiser must be required to recognize this fact in estimating market value of the taken land... It was at this point of comparable sales and the measurement of value based thereupon that the errors of this trial had the most damaging effect upon the verdict and the judgment."
The question of project enhancement is related to the comparability of the sale offered in support of the expert's opinion. Where a proper objection is made to a sale on the ground that it is not comparable or that the value of the property sold has been affected by the project, the trial court must determine whether or not the sale is comparable and whether or not the price received has been influenced by the project. Where it is shown that the sale occurred after the date of taking the burden is upon the party offering the testimony to develop the facts showing whether or not the price of the property under consideration was affected by the public improvement causing the condemnation. Until such a showing is made the trial court is in no position to exercise his discretion as to the admissibility of the sale. Here the trial court admitted into evidence the sale without testimony from which he could determine lack of enhancement due to the project.
Mr. Bryan, the landowner, testified that as of the date of taking he had an opinion that the fair cash market value of the property was 50 cents a square foot. He explained his opinion by saying, "I haven't been able to replace it for that. I have been looking for a place." He had previously testified: "Well, of course to me, you know, it is priceless because I just don't want to get rid of it, it is something I can't do without and do anything with the rest of the property." The State moved for a mistrial pointing out to the court that the fact that the landowner was unwilling to sell had nothing to do with market value and was highly prejudicial and inflammatory. He also pointed out that the testimony about replacement value was prejudicial and presented to the jury an erroneous concept of value. The trial court had previously sustained an objection to the testimony about the land being priceless to the owner and ordered the jury to disregard that part of the answer. The court then sustained an objection to the witness's answer that he could not go out and replace the property for 50 cents a square foot and refused the motion for a mistrial. Prior to the conclusion of the trial the State made a bill of exception which reflects that Mr. Bryan based his testimony as to the value of his land, in part, on the fact that he could not replace the land for 50 cents a square foot. The State then moved that the court strike Mr. Bryan's opinion testimony as to the value of the land, and this motion was denied. This action of the trial court was error. Replacement cost is not a proper basis for the valuation of property where said property has a market value. An opinion founded on an improper measure of valuation is of no probative force. State v. Zaruba, 418 S.W.2d 499 (Tex.1967); Taylor County v. Olds, 67 S.W.2d 1102 (Tex.Civ. App.Eastland 1934).
The State contends that the attorney for the landowner's jury argument was so highly prejudicial that it could not be cured by an instruction from the court. The expert appraiser whose testimony was offered by the State testified that the property remaining after the taking would not be suitable for the operation of the mobile home and motor home business which was operated by the landowner on the premises prior to the taking. He further testified that the property was suitable for the operation of other kinds of business *933 including a beer distributorship, a repair garage and lumber yard. He identified pictures which he had taken of similar businesses in and around the city. He also testified that the property remaining was worth as much after the taking as it was prior to the taking. In his final jury argument counsel for the landowner stated:
"... The State's appraiser says it is not suitable for Bill Bryan to continue and operate his mobile home and motor home business, but can you get this, Ladies and Gentlemen, get this, that the State says `Well, he can put in a beer joint or a beer distributorship. He can move off. We don't care whether he gets a place or not, don't care what he pays for it. He can put in a warehouse and rent it for 8 cents a square foot... They tell this man that chose his profession of mobile homes and motor homes, that he can put in a lumber yard, and yet it is not damages....
"`... It is offensive to me that the State would take that position, that you would put these Christian people out of business and put them in the beer business ...
"`... This is the first time that I ever saw the government come in and tell a man `We are going to take your property, we are going to take so much of it that you can't operate your business there, but you can put in a beer distributorship.'"
The contention is made that the argument presented an improper basis of value and damages to the jury; was highly emotional and prejudicial; and was outside the record.
Where the ownership of land, improvements and business conducted thereon are in the same person, evidence of resulting injury to the business is admissible, not as a separate item of damage, but as affecting the market value of the remaining land and improvements for the uses to which they were adapted and were being made. State v. Zaruba, 418 S.W.2d 499 (Tex.1967); City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951).
The testimony that the land remaining after the taking was no longer suitable for the conduct of the business which the landowner had been conducting on it was admissible as an element of damage. There was testimony that a large building was located on the remaining property, and that the lack of parking area diminished its value. On the other hand there was testimony that while the building and land remaining was not suitable to the conduct of the landowner's business, it was suitable for other types of business. In this case, the State was, in effect, putting the landowner out of business at this location. While we do not approve the language of the argument, the purport of the argument that the landowner could not continue his business was proper. There was no evidence, and no argument, concerning the necessity for or cost of tearing down the building, or concerning the amount of profits lost in the conduct of the established business. We condemn the language used for the reason that it was an appeal to emotion and sympathy. In this aspect the argument was erroneous, but we cannot say that it was so highly prejudicial and inflammatory that the harmful effect could not have been removed by an instruction from the court. The State made no objection to the argument and asked for no such instruction.
The landowner's counsel also stated to the jury, "Yes, the taxpayer is going to pay for it and they are going to pay for it in Maine, they are going to pay for it in California, they are going to pay for it everywhere. That is where the taxes go, for the public good, and I guarantee you it won't amount to a mil out of your pocket." This argument was objected to as appealing to the personal interest of the juror. The objection was overruled by the court. This argument constituted an improper appeal to the personal financial interests of the juror and was outside the record.
*934 In his argument the attorney for the State said:
"Fortunately, or maybe unfortunately, we have nobody to sit in the chair as our client, but I am here representing the taxpayers and citizens of Brazoria County and the State of Texas."
The attorney for the landowner objected, saying:
"... that he is here representing the taxpayers, that is out of the evidence. There is no evidence that he is representing them."
The court overruled the argument, saying: "I will allow it in argument." Referring to the landowner and the taxpayers the attorney for the State then said: "They deserve equal consideration." It can be seen that the argument of which the State complains was made in response to a previous argument of the attorney for the State.
The Supreme Court of Texas has stated clearly the rule which we must follow in considering assignments relating to the improper argument of counsel. In Texas Sand Company v. Shield, 381 S.W.2d 48 (Tex.1964), the court said:
"Regrettably, on several occasions this court has been called on to decide whether an argument by counsel necessitated a reversal of a cause. In some of the cases, such as Southwestern Greyhound Lines v. Dickson, supra, it has been held that argument otherwise excessive or improper is justified by `invitation' emanating from the opposite side. In other cases, such as Blum v. Simpson, 66 Tex. 84, 17 S.W. 402 (1886), the rule as announced in Southwestern Greyhound does not authorize the use of language, the purpose of which is only to influence or prejudice the jury. Other cases deal with the question of whether certain types of argument are `curable' or `incurable'.... However, regardless of the type or category in which an argument might fall, the true test is as laid down in Texas Employers Ins. Ass'n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954), the test that has been consistently followed by this court since the adoption of Rules 434 and 503, supra. In the Haywood case, we said: `The true test is the degree of prejudice flowing from the argumentwhether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.'"
The court erred in overruling the objection to the statement by the State's attorney that he was representing the taxpayers. Such a statement invited the jurors to consider their own self interest in returning their verdict. The court also was in error in overruling the State's objection to the argument of the attorney for the landowner. This argument, however, was in reply to the argument of the State. After considering the entire record we cannot say that the argument was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
Finally the State contends that the trial court erred in not granting plaintiffs' requested instruction No. 5, reading:
"In determining the market value of the 0.736 acres of land condemned, as that is submitted to you in Special Issue No. 1, you are instructed that since the 0.736 acres of land in question is within the boundary of the very highway project for which it is being acquired, you shall not take into consideration any increase in market value of said 0.736 acres of land, if any there was, which may have been caused by this acquisition program."
In presenting their value testimony, the defendant landowner's witnesses introduced, over objection, sales made subsequent to the date of taking. These sales may have been influenced by the acquisition program. There is testimony in the *935 record of other comparable sales made prior to the date of taking. The trial court gave the jury no instructions limiting the jury in their consideration of the expert appraisers' testimony as to comparable sales. The landowner is not entitled to be compensated for the land taken at the market value of other lands where the market value of such lands has increased by reason of the public improvement after the date of taking. There is no evidence from which the jury could determine whether the purported comparable sales which occurred after the date of taking reflected project enhancement, or the amount by which the value of those lands had been enhanced. The error, if any, was the action of the trial court in admitting such sales. The requested instruction would have been of little, if any, value to the jury in determining the market value of the land taken at the date of taking. The trial court did not err in refusing to submit the requested instruction.
Mr. Sid Holdridge valued the property taken at $8,832.00 ($12,000.00 per acre) and the improvements on the land at $5,700.00, for a total of $14,532.00. Mr. Roy C. Powers valued the property taken at $13,248.00 ($18,000.00 per acre), and the improvements at $13,750.00 for a total of $26,998.00. Mr. Gene Hughes valued the property taken at $9,200.00 ($12,500.00 per acre), and the improvements at $12,013.00 for a total of $21,213.00. These were the three appraisers presented by the landowner. Mr. Bob Hutchins valued the property taken at $6,256.00 ($8,500.00 per acre), and the improvements at $4,802.00, for a total of $11,058.00. Mr. Holdridge valued the remainder property including the improvements located thereon at $70,718.00 before the taking and $54,908.00 after the taking, resulting in damage to the landowner in the sum of $15,810.00. Mr. Powers valued the remainder property at $98,000.00 before the taking, and $55,000.00 after the taking, resulting in damage to the landowner in the amount of $43,000.00. Mr. Hughes valued the remainder property at $62,382.00 before the taking, and $51,511.00 after the taking, resulting in a damage to the landowner in the sum of $10,871.00. Mr. Hutchins valued the remainder property prior to the taking at $68,344.00 and was of the opinion that after the taking the value was the same, resulting in no damage. The jury was asked to value the property taken including improvements and answered $15,000.00. They found that the value of the remainder including improvements before the taking was $70,000.00, and that the value of the property after the taking was $55,000.00, resulting in a damage to the landowner of $15,000.00. There is no way by which we can determine the value the jury placed on the improvements, therefore we do not know the value placed on the land taken exclusive of the improvements. The answers made by the jury are well within the limits of the testimony given by the various expert appraisers. We see no indication that the jurors were influenced by improper motives or inadmissible evidence in arriving at their answers to the issues submitted. We cannot say that the accumulation of errors probably caused the rendition of an improper judgment.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1976219/ | 294 B.R. 635 (2003)
In re Heidi L. STIPETICH, Debtor.
Heidi L. Stipetich, Plaintiff,
v.
First Mount Vernon Industrial Loan Association, Defendant.
Bankruptcy No. 02-29200-MBM. Adversary No. 02-2543-MBM.
United States Bankruptcy Court, W.D. Pennsylvania.
June 20, 2003.
*636 *637 Steven T. Shreve, Glosser & Shreve, Pittsburgh, PA, for Debtor.
Joseph M. Fornari Jr., Office of the U.S. Trustee, Pittsburgh, PA, for U.S. Trustee.
MEMORANDUM AND ORDER OF COURT
M. BRUCE MCCULLOUGH, Bankruptcy Judge.
AND NOW, this 20th day of June, 2003, upon consideration of (a) the adversary complaint of Heidi Stipetich, the above-captioned debtor and plaintiff herein (hereafter "the Debtor"), which adversary complaint contains three counts for, in particular, (i) violation of Maryland's usury laws, (ii) constructive fraudulent conveyance under 11 U.S.C. § 548 and Maryland's fraudulent conveyance provisions, and (iii) common law fraud, (b) the Debtor's motion for partial summary judgment, wherein the Debtor appears to seek summary judgment *638 on her usury law violation and constructive fraudulent conveyance counts, (c) the response and cross-motion for partial summary judgment by First Mount Vernon Industrial Loan Association, defendant herein (hereafter "First Mount Vernon"), wherein First Mount Vernon seeks summary judgment in its favor on the same two counts for which the same is presently sought by the Debtor, and (d) the numerous other submissions in the matter filed by the parties; and subsequent to notice and a hearing on the matter held on May 21, 2003, it is hereby ORDERED, ADJUDGED, AND DECREED that (a) with respect to the Debtor's usury law violation count, First Mount Vernon's cross-motion for summary judgment is GRANTED and the Debtor's motion for summary judgment is DENIED WITH PREJUDICE, and (b) with respect to the Debtor's constructive fraudulent conveyance count, both the Debtor's motion for summary judgment and First Mount Vernon's cross-motion for summary judgment are DENIED WITHOUT PREJUDICE. The rationale for the Court's decision is set forth in detail below.
I.
The Debtor alleges in Count 1 of her adversary complaint that at least some portion of the interest charges and other fees that First Mount Vernon imposed upon the Debtor for a $550,000 loan that First Mount Vernon extended to the Debtor in March 2001 (hereafter "the FMV Loan") violates Maryland's usury laws. In particular, the essence of the Debtor's usury claim appears to be that some portion of the interest charged by First Mount Vernon on the FMV Loan, first at a rate of 18% and then, subsequent to the FMV Loan going into default, at a rate of 24%, as well as at least some portion of the other fees that were charged by First Mount Vernon on such loan, are usurious pursuant to Maryland's usury laws because (a) the FMV Loan, argues the Debtor, is not a commercial loan within the meaning of Maryland's usury laws, and (b) First Mount Vernon, apparently argues the Debtor, could, with respect to the FMV Loan, neither charge interest at the aforesaid rates charged nor collect a portion of the other fees charged unless such loan is such a commercial loan. Without conceding what portion of the interest and other fees relative to the FMV Loan would be usurious in the event that the FMV Loan is not a commercial loan, First Mount Vernon appears to concede that, if the FMV Loan is not a commercial loan within the meaning of Maryland's usury laws, then at least some portion of such interest and fees are usurious under Maryland law.[1] However, and as one would expect, First Mount Vernon maintains that the FMV Loan is a commercial loan within *639 the meaning of Maryland's usury laws. First Mount Vernon further argues that, by virtue of signed written declarations made by the Debtor when the FMV Loan was advanced to her, the Debtor is equitably estopped[2] from denying that the FMV Loan is a commercial loan.
The parties appear to agree, and in any event a genuine factual dispute does not exist, that (a) the FMV Loan actually operated to refinance a prior loan obtained by the Debtor from a lender other than First Mount Vernon (hereafter "the 1st Refinancing Loan"), which prior loan itself operated to refinance an initial mortgage loan of $350,000 that the Debtor obtained from yet a third distinct lending institution (hereafter "the Initial Loan"), (b) the FMV Loan, the 1st Refinancing Loan, and the Initial Loan are or were each secured solely by a mortgage or a deed of trust on a particular piece of Maryland realty that was owned by the Debtor when she obtained each such loan (hereafter "the Maryland Realty"), (c) the Debtor obtained the Initial Loan with the purpose of investing the proceeds therefrom in an entity entitled U.S. Funding, see 12/13/02 Stipetich Dep., Docket No. 19, p. 121, lines 17 21, (d) the Debtor actually invested all $350,000 of the proceeds from the Initial Loan in U.S. Funding and thereby obtained an ownership interest therein, see Id., and (e) the Debtor obtained both the 1st Refinancing Loan and the FMV Loan for the purpose of staving off a foreclosure on the Maryland Realty. The Debtor also maintains, and the Court does not understand First Mount Vernon to dispute, that, although the Debtor intended to and did invest the $350,000 in proceeds from the Initial Loan in U.S. Funding, she was actually swindled out of said $350,000 by virtue of entering into such investment transaction, which investment transaction, she argues, was the perpetration of a fraud by the principal owner of U.S. Funding.
The Court holds, as a matter of law, that interest charged by First Mount Vernon on the FMV Loan that is not in excess of 18% annually, and that portion of the other fees relative to the FMV Loan that may statutorily be considered to be interest by a provision of Maryland's usury laws (hereafter collectively referred to with other interest charged on the FMV Loan as "interest") and that, in conjunction with the other interest charged on the FMV Loan, does not exceed 18% on an annual basis, is not usurious under Maryland's usury laws regardless of whether the FMV Loan is a commercial loan. The Court holds as it does because:
(a) the default maximum interest rate that can be charged with respect to loans in Maryland is 6%, see Md.Code Ann., Commercial Law § 12-102 (West 2003);
(b) absent the applicability of one of the numerous exceptions set forth in Md.Code Ann., Commercial Law § 12-103(b) (f), "a lender may charge interest at an effective rate *640 of simple interest not in excess of 8 percent per year on the unpaid principal balance of a loan if there is a written agreement signed by the borrower which sets forth the stated rate of interest charged by the lender," Md.Code Ann., Commercial Law § 12-103(a)(1) (West 2003);
(c) the parties do not dispute that there exists a written agreement that was signed by the Debtor which sets forth the 18% and 24% rates to be charged by First Mount Vernon relative to the FMV Loan, which means that, by virtue of § 12-103(a)(1), a maximum interest rate of at least 8% thus may be charged with respect to the FMV Loan;
(d) "[i]f a loan made under . . . [§ 12-103(a)(1)] is secured by the pledge of collateral which is other than a savings account or if such loan is unsecured, the lender may charge a rate of interest not in excess of 18 percent," Md.Code Ann., Commercial Law § 12-103(a)(3) (West 2003); and
(e) the parties do not dispute that the FMV Loan is secured only by the Maryland Realty, which means that, by virtue of § 12-103(a)(3), an interest rate of at least 18% may be charged with respect to the FMV Loan rather than the 8% ceiling rate called for by § 12-103(a)(1), and regardless of whether the FMV Loan is a commercial loan.[3]
The Court also holds, as a matter of law, that interest charged by First Mount Vernon on the FMV Loan that exceeds 18% on an annual basis will not be usurious under Maryland's usury laws provided that the FMV Loan is a commercial loan. The Court holds as it does because:
(a) "[a] lender may charge interest at any rate if the loan is . . . (ii)[a] commercial loan in excess of $15,000 not secured by residential real property; or (iii)[a] commercial loan in excess of $75,000 secured by residential real property," Md.Code Ann., Commercial Law § 12-103(e)(1)(ii) & (iii) (West 2003);[4] and
(b) the initial principal balance of the FMV Loan greatly exceeded $75,000, which makes insignificant any dispute that the parties may have as to whether the Maryland Realty that indisputably collateralizes the FMV Loan is residential in nature if such realty is not residential in nature, then § 12-103(e)(1)(ii) applies provided that the FMV Loan *641 is a commercial loan, and if such realty is residential in nature, then § 12-103(e)(1)(iii) applies provided that the FMV Loan is a commercial loan.
Finally, however, the Court holds, as a matter of law, that interest charged by First Mount Vernon on the FMV Loan in excess of 18% annually will be usurious under Maryland's usury laws if the FMV Loan is not a commercial loan. The Court holds as it does because:
(a) 18%, as set forth above, is established as the ceiling rate that may be charged for annual interest on the FMV Loan unless one of the exceptions set forth in Md.Code Ann., Commercial Law § 12-103(b) (f) applies to such loan; and
(b) First Mount Vernon, as alluded to above, appears to concede, and the Court concludes as well in any event, that the only one of the many exceptions to the 8% and, thus, the 18% ceiling rate contained in Md.Code Ann., Commercial Law § 12-103(b) (f) that can apply to the FMV Loan is that set forth in § 12-103(e)(1)(ii) or (iii) for a commercial loan.
Based upon the foregoing analysis, the Court agrees with what the parties appear to have resolved themselves, namely that the issue key to a resolution of the Debtor's usury law violation count is whether the FMV Loan is a commercial loan.
A commercial loan under the Maryland usury laws "means a loan which is made: (1)[s]olely to acquire or carry on a business or commercial enterprise; or (2) [t]o any business or commercial organization." Md.Code Ann., Commercial Law § 12-101(c) (West 2003). The parties agree that § 12-101(c)(2) does not apply to the FMV Loan since such loan was made to the Debtor, who is an individual rather than a business or commercial organization. However, the parties dispute whether § 12-101(c)(1) applies to the FMV Loan, with the Debtor advancing several reasons for her position that such provision does not so apply and that the FMV Loan, consequently, is not a commercial loan. First, the Debtor argues that the FMV Loan is (a) a simple refinancing of a previous mortgage loan collateralized by the Maryland Realty, which refinancing the Debtor obtained, not for investment purposes, but rather so as to stave off a foreclosure upon the Maryland Realty, and (b) consequently not a commercial loan by virtue of § 12-101(c)(1). By making this particular argument, the Debtor necessarily takes the position that the character of the FMV Loan should be ascertained without any regard for the characterization of the Initial Loan, notwithstanding that, and as the parties agree, the FMV Loan refinanced an earlier refinancing of the Initial Loan, which latter loan was obtained with an obvious purpose of investment. Second, the Debtor contends (a) that, even if a characterization of the Initial Loan controls when making a determination as to the character of the FMV Loan, the ultimate employment of the Initial Loan proceeds rather than the purpose for which such proceeds were sought controls when making a determination as to the Initial Loan's character, (b) that the ultimate employment of the Initial Loan proceeds was not their investment in U.S. Funding but rather their fraudulent and tortious conversion by the principal owner of U.S. Funding, (c) that a loan the proceeds of which are so converted cannot be characterized as one for investment purposes, and (d) that the FMV Loan is, consequently, not a commercial loan by virtue of § 12-101(c)(1). Finally, the Debtor maintains that, even if the purpose for which the Initial Loan was obtained by the Debtor controls when making a determination *642 as to the character of the Initial Loan and, thus, the FMV Loan, and even though the purpose of the Initial Loan was to make an investment in U.S. Funding, the Initial Loan is still not one that was made to acquire or carry on a business or commercial enterprise. The Debtor so argues, inter alia, because, argues the Debtor in turn, a loan sought so as to permit an investment in a business or commercial enterprise and the Debtor concedes that the purpose of the Initial Loan was such because the Debtor concedes that such loan was sought solely for the purpose of making an investment in U.S. Funding, see 12/13/02 Stipetich Dep., Docket No. 19, p. 121, lines 17 21, which entity is a for-profit corporation and, thus, also a business or commercial enterprise is not necessarily the equivalent of a loan that is made to acquire or carry on the same.
A. The Proper Method of Characterizing the Initial Loan.
Addressing first the second of the three arguments advanced by the Debtor and recounted in the preceding paragraph, the Court rejects such argument for at least two reasons. First, even if the ultimate employment of the Initial Loan proceeds rather than the purpose for which such proceeds were sought controls when making a determination as to the character of the Initial Loan, the Court cannot accept that the Initial Loan proceeds were ultimately employed by the Debtor for anything other than to invest in U.S. Funding. Indeed, the Court does not even find the Debtor to genuinely dispute that she ultimately used the Initial Loan proceeds to invest in U.S. Funding. Instead, it appears to the Court that the Debtor confuses how she employed such proceeds, which, as set forth in the immediately preceding sentence, was to make the investment in U.S. Funding, with how she alleges the Initial Loan proceeds were ultimately employed by the principal owner of U.S. Funding after she made her investment therein. The Court rejects outright, as a matter of law, any notion that how someone other than the Debtor employed the Initial Loan proceeds subsequent to their employment by the Debtor affects a determination as to the character of the Initial Loan. Therefore, even if the ultimate employment of the Initial Loan proceeds is dispositive when ascertaining the character of the Initial Loan, the Initial Loan must be characterized as one for investment.
Second, the Court, in any event, holds, as a matter of law, that a loan, for purposes of Maryland's usury laws and § 12-101(c)(1) in particular, is characterized by the purpose for which such loan is sought rather than the ultimate use to which such loan's proceeds might be put by a borrower. Maryland's usury statutes are silent, and caselaw construing the same is nonexistent, with respect to the issue that is the subject of the Court's legal holding set forth in the immediately preceding sentence. However, the Court draws support for such legal holding not only from the fact that the same makes the most sense from a logical standpoint but also from case authority construing an analogous provision of the federal Truth in Lending Act (TILA). See, e.g., Poe v. First National Bank of DeKalb County, 597 F.2d 895, 896 (5th Cir.1979) (courts look to purpose of loan to determine whether it fits within exemption to TILA, pursuant to 15 U.S.C. § 1603(1), for credit transaction involving extension of credit primarily for business, commercial, or agricultural purposes); Stillman v. First National Bank of North Idaho, 117 Idaho 642, 791 P.2d 23, 25 (App.1990) (same, noting that stated purpose rather than ultimate use of the loan controls exemption determination under 15 U.S.C. § 1603(1)). *643 Because, and as the Debtor concedes, the purpose for which the Initial Loan was sought was so as to allow the Debtor to make an investment in U.S. Funding, the Initial Loan must be characterized as one of investment.
B. The Proper Method of Characterizing the FMV Loan.
Addressing next the first of the three arguments advanced by the Debtor and recounted several paragraphs above, the Court rejects such argument for two reasons. First, the Court holds, as a matter of law, that a refinancing loan, for purposes of Maryland's usury laws and § 12-101(c)(1) in particular, is characterized by the purpose which prompted the initial loan that is sought to be refinanced by way of said refinancing loan rather than the purpose for which such refinancing is sought. Maryland's usury statutes are silent, and caselaw construing the same is nonexistent, with respect to the issue that is the subject of the Court's legal holding set forth in the immediately preceding sentence. However, the Court draws support for such legal holding from case authority construing an analogous provision of TILA. See Toy National Bank of Sioux City v. McGarr, 286 N.W.2d 376, 378 (Iowa 1979) (characterizing refinancing loan by purpose of loan that was refinanced, and holding that a commercial loan that is refinanced is not transformed into a personal loan because such refinancing was obtained to stave off foreclosure on a residence that served as collateral for the initial loan); Stillman, 791 P.2d at 26 (same); but see Anderson v. Lester, 382 So.2d 1019, 1023 (La.Ct.App.1980) (characterizing refinancing loan by purpose for which refinancing is sought, and holding that a commercial loan is transformed into a personal loan when such commercial loan is refinanced so as to stave off foreclosure on a residence that served as collateral for the initial loan). Furthermore, the Court discounts contrary case authority construing such analogous TILA provision when such contrary authority is considered within the context of usury laws because, if a refinancing of a loan were to operate to transform what was initially a commercial loan into a noncommercial loan, thereby restricting a lender for such refinancing as to the interest rate that it could charge thereon, then the market for many such refinancing loans would greatly diminish if not dry up entirely.[5] Because, and as the *644 Debtor concedes, the purpose for which the Initial Loan was sought was so as to allow the Debtor to make an investment in U.S. Funding, both the 1st Refinancing Loan and the FMV Loan must also be characterized as one of investment.
Second, the Court holds that the Debtor is equitably estopped in any event from denying that the FMV Loan is an investment loan. The law regarding equitable estoppel in Maryland is stated as follows:
In Knill v. Knill, [306 Md. 527, 510 A.2d 546 (1986)] . . . we defined equitable estoppel to be "`the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part requires some corresponding right, either of property, of contract, or of remedy.'"
The cited work describes the general principle underlying estoppel in pais as loss-shifting. Pomeroy states, "When one of two innocent persons that is, persons each guiltless of an intentional, moral wrong must suffer a loss, it must be borne by that one of them who by his conduct acts or omissions has rendered the injury possible."
In Grimberg v. Marth, [338 Md. 546, 659 A.2d 1287 (1995)] . . . we restated the elements of estoppel, saying:
"`[I]t is now well established that `an estoppel may arise even where there is no intent to mislead, if the actions of one party cause a prejudicial change in the conduct of the other.' Indeed, all that is needed to create an equitable estoppel is (1) voluntary conduct or representation, (2) reliance, and (3) detriment.'"
Chevy Chase Bank, FSB v. Chaires, 350 Md. 716, 715 A.2d 199, 209 (1998) (citations omitted). The Debtor is equitably estopped to deny that the FMV Loan is at least an investment loan because (a) the Debtor voluntarily signed at least three separate documents at the time when the FMV Loan was made that contain explicit representations, inter alia, to the effect that the FMV Loan "will be used entirely for commercial, business and/or investment purposes" (hereafter "the Loan Documents"), see Ex. to Def.'s Reply (Borrower Affidavit, Borrower Certifications, and Business and Investment Affidavit), Docket No. 21, (b) First Mount Vernon relied on such signed declarations by the Debtor as evidenced by the fact that First Mount Vernon proceeded to close on the FMV Loan and lent under the presumption that the FMV Loan is one for commercial, business and/or investment purposes, see supra p. 638 note 1 (such presumption by First Mount Vernon follows because, had it known that the FMV Loan was not at least an investment loan with a chance of being a commercial loan, then First Mount Vernon would have had no reason not to lend under Subtitle 10 of Title 12), and (c) First Mount Vernon would suffer detriment were a court to now hold that the FMV Loan is not an investment loan given that (i) an investment loan, as set forth below, necessarily constitutes a commercial loan as well, see infra pp. 646-47, and (ii) part of the interest charges imposed on the FMV Loan are usurious unless such loan is a commercial loan. In order to clarify the Court's preceding holding, the Court notes that it holds only that the *645 Debtor is equitably estopped to deny that the FMV Loan is an investment loan; the Court does not hold that the Debtor is likewise equitably estopped to deny that the FMV Loan is a commercial loan because (a) the declaration in at least one of the Loan Documents (the Borrower Affidavit to be precise), by virtue of the insertion therein of the phrase "and/or," allows for the Debtor to argue that she declared that the FMV Loan was made for but one, rather than all three, of the stated purposes of business, commercial, and investment, (b) the Court cannot presume that the Debtor would wish to argue now that she declared, and is thus equitably estopped to deny, that the FMV Loan was made for either a business or commercial purpose given that a loan for either such purpose would clearly render the same a commercial loan within the meaning of § 12-101(c)(1), and (c) the Loan Documents were all drafted by First Mount Vernon and, thus, shall be strictly construed against it. The Court's decision regarding equitable estoppel is unaffected by any possible argument by the Debtor that she failed to read any of the Loan Documents prior to signing them and that, consequently, she did not voluntarily represent to First Mount Vernon that the FMV Loan was one for commercial, business and/or investment purposes because the Debtor, even if she failed to read the Loan Documents, is equitably estopped from denying that she read such documents. The preceding conclusion follows because (a) the Debtor, even if she failed to read the Loan Documents, nevertheless signed them voluntarily, (b) equitable estoppel, at least in Maryland but presumably elsewhere as well, need not necessarily be supported by a voluntary representation but can instead be supported by voluntary conduct as well, see supra p. 644, (c) First Mount Vernon relied on the Debtor's voluntary affixation of her signature to the Loan Documents as evidenced by its decision to proceed with the closing of the FMV Loan, (d) the Debtor has not pointed the Court to any basis upon which the Court could possibly find, let alone provided the Court with minimal evidence sufficient to withstand a cross-motion for summary judgment to the effect, that First Mount Vernon had reason to believe that the Debtor did not read the Loan Documents before she signed them, (e) the Court thus must conclude that First Mount Vernon was justified in so relying on the Debtor's voluntary conduct in the form of her affixation of her signature to the Loan Documents, and (f) First Mount Vernon would suffer detriment were a court to now hold that the Debtor is not bound to what she signed and that, as a result, First Mount Vernon perhaps had no basis for proceeding to lend to the Debtor as if the FMV Loan were an investment loan. The Court's decision regarding equitable estoppel is also unaffected, and First Mount Vernon's reliance upon the substance of the signed declarations by the Debtor contained in the Loan Documents is justified, even (a) if this Court or a reviewing court were to presently hold that a refinancing loan, for purposes of Maryland's usury laws and § 12-101(c)(1) in particular, is characterized by the purpose for which such refinancing is sought rather than the purpose which prompted the initial loan that is sought to be refinanced by way of said refinancing loan, (b) if this Court or a reviewing court were to consequently hold presently that the FMV Loan was for personal purposes and, thus, is not one of investment, and (c) though First Mount Vernon knew when the FMV Loan was made that the Debtor was undertaking such refinancing not so as to make an investment but rather so as to stave off a foreclosure on the Maryland Realty. The preceding conclusion is dictated *646 because, when the FMV Loan was made, the state of the law regarding whether a refinancing loan such as the FMV Loan is to be characterized as an investment loan or not was so unsettled that First Mount Vernon (a) then had every reason to believe that the FMV Loan is one of investment, and (b) thus justifiably relied on the content of the signed declarations by the Debtor to the effect that the FMV Loan is at least an investment loan; indeed, the state of the law remains very much unsettled at the present time, which means that not until the entry of this Court's ruling or any subsequent appeal of the same can one be certain one way or the other as to whether the FMV Loan is one of investment.
C. Whether an Investment Loan is Necessarily a Commercial Loan Within the Meaning of § 12-101(c)(1)?
The Court addresses finally the Debtor's argument that a loan sought so as to permit an investment in a business or commercial enterprise (i.e., an investment loan) is not necessarily also a loan that is made to acquire or carry on the same (i.e., a commercial loan within the meaning of Maryland's § 12-101(c)(1)). As an initial matter, and for the reasons set forth in the preceding section, the Court cannot accept First Mount Vernon's position that the Debtor is equitably estopped to deny that the FMV Loan is a commercial loan within the meaning of Maryland's § 12-101(c)(1). See supra p. 645. Because the Debtor is not so equitably estopped, the Debtor is free to argue as she does that investment loans in general, and the FMV Loan in particular, are not necessarily commercial loans within the meaning of § 12-101(c)(1). However, and unfortunately for the Debtor, the Court rejects such argument by the Debtor if for no other reason than that investment loans in general, and the Initial Loan and, thus, the FMV Loan in particular, fall within the parameters of the plain language of § 12-101(c)(1). The Court holds as it does because, as explained below, any investment in a business or commercial enterprise (a) enables one to acquire, at least in part, such business or commercial enterprise, and (b) also enables such business or commercial enterprise to be carried on.
The Debtor maintains that (a) one only acquires a business or commercial enterprise within the meaning of § 12-101(c)(1) if one obtains at least a controlling ownership interest in the same, (b) the Debtor acquired much less than a controlling ownership interest in U.S. Funding when she made her investment in such entity, and (c) the Initial Loan and, thus, the FMV Loan consequently was not made to acquire U.S. Funding. The Court rejects such argument, however, because (a) § 12-101(c)(1) says nothing about the acquisition of a controlling interest in a business or commercial enterprise, instead by its broad terms encompassing loans the purpose for which is the acquisition of any portion of a business or commercial enterprise, and (b) the Court cannot conjure up any reason why Maryland's legislature would have wished for § 12-101(c)(1) to be read in such a constricted fashion as is now suggested by the Debtor indeed, why, for instance, would Maryland's legislature have wished to exclude from its usury laws via § 12-101(c)(1) loans that are made with the purpose of acquiring a 51% ownership interest in a business or commercial enterprise but not similar loans which serve to acquire but a 49% ownership interest therein. Therefore, the Court holds that a loan made with the purpose of acquiring an ownership interest of any size in any type of business or commercial enterprise such as, for instance, the Initial Loan and, thus, the FMV Loan falls within that portion of *647 the plain language of § 12-101(c)(1) dedicated to "acquisition of a business or commercial enterprise" and, thus, necessarily constitutes a commercial loan that is excluded from the reach of Maryland's usury laws.
As well, when one invests funds in a business or commercial enterprise, one generally, if not always, desires that such funds will then be used so as to carry on such business or commercial enterprise. In fact, the Debtor cannot successfully argue anything different with respect to her own investment in U.S. Funding. Indeed, the Debtor procured the Initial Loan and, thus, the FMV Loan as well with the purpose of then utilizing the proceeds therefrom to acquire an ownership interest in U.S. Funding, after which she certainly desired that the funds so invested would be utilized so as to carry on what she apparently understood to be the legitimate purpose of U.S. Funding. Moreover, the plain language of Maryland's § 12-101(c)(1) encompasses a loan made with the purpose of aiding in the carrying on of a business or commercial enterprise regardless of whether the borrower for such loan possesses or thereby acquires an ownership interest in such business or commercial enterprise. Therefore, and for instance, § 12-101(c)(1), by its terms, encompasses a loan taken out by a parent to aid a child in the carrying on of a child's business or commercial enterprise even if the parent, by virtue of such aid to such child, does not take back an ownership interest in such child's business or commercial enterprise. In light of the preceding observation, to wit that § 12-101(c)(1) encompasses loans made to carry on a business or commercial enterprise even if no ownership interest therein is owned or thereby obtained, it makes absolutely no sense to hold at the same time that, if a loan is taken out by a borrower so as to permit such borrower to obtain an ownership interest in a business or commercial enterprise, then such loan will only fall within the parameters of § 12-101(c)(1) if the ownership interest therein obtained is greater than 50%. Therefore, the Court holds that a loan made with the purpose of investing in any type of business or commercial enterprise such as, for instance, the Initial Loan and, thus, the FMV Loan also falls within that portion of the plain language of § 12-101(c)(1) dedicated to "carrying on a business or commercial enterprise" and, thus, necessarily constitutes a commercial loan that is excluded from the reach of Maryland's usury laws.
D. Conclusion.
Because the Court holds that the FMV Loan constitutes a commercial loan within the meaning of Maryland's § 12-101(c)(1), First Mount Vernon, as explained in an earlier portion of the instant opinion, was free to charge any interest rate on the FMV Loan that it wished pursuant to § 12-103(e)(1)(ii) and (iii). Consequently, the Court is constrained to conclude that interest charged by First Mount Vernon on the FMV Loan in excess of 18% on an annual basis is not usurious under Maryland's usury laws of course, the interest charged on such loan up to 18% is, as set forth above, also not usurious under such usury laws. Moreover, the Court ascertains that a genuine dispute does not exist with respect to any fact that is material to any of the findings or conclusions that the Court makes in support of, or including, the ultimate conclusion that is drawn in the preceding sentence herein. Therefore, First Mount Vernon is entitled to a judgment in its favor as a matter of law with respect to the Debtor's usury law violation count. Accordingly, and pursuant to Fed.R.Bankr.P. 7056 and Fed.R.Civ.P. 56, the Court grants First Mount Vernon's cross-motion for summary judgment and denies *648 with prejudice the Debtor's motion for summary judgment, but only as the same pertain to the Debtor's Count 1 for violation of Maryland's usury laws.
II.
In Count 2 of her adversary complaint, the Debtor asserts that First Mount Vernon's May 13, 2002 recording of a deed, which deed operated to convey title to the Maryland Realty from the Debtor to First Mount Vernon and which deed was executed by the parties on or about September 26, 2001 (hereafter "the Deed"), is constructively fraudulent under both 11 U.S.C. § 548 and Maryland's fraudulent conveyance provisions. The gravamen of the Debtor's constructive fraudulent conveyance claim is that the Debtor did not receive reasonably equivalent value in return for the transfer of the Maryland Realty via First Mount Vernon's recording of the Deed, which claim the Debtor makes because she alleges, in turn, that (a) the Maryland Realty was worth $1.1 million on May 13, 2002, and (b) the value of that which she received from First Mount Vernon in return for the recording of the Deed was not worth anywhere near $1.1 million. The Debtor argues, in particular, that she only received approximately $462,000 from First Mount Vernon in return for the Deed that was recorded, which figure (a) consists, as the Court understands it, of approximately $445,000 to pay off the 1st Refinancing Loan plus roughly $17,000 in accrued property taxes and other charges that First Mount Vernon picked up at the time of the making of the FMV Loan, and (b) does not include any amount for accrued but unpaid interest, points, and other various charges relative to the FMV Loan, which omission is due, the Court presumes, to the Debtor's claim in her Count 1 that all such interest and other charges should be disallowed because of First Mount Vernon's alleged usury law violations.
First Mount Vernon defends against the Debtor's constructive fraudulent conveyance claim by maintaining, inter alia, that (a) the Maryland Realty was worth only $733,750 on May 13, 2002, and (b) the Debtor received value from First Mount Vernon in return for the recording of the Deed equal to at least approximately $740,000. The consideration figure of $740,000 asserted by First Mount Vernon equals the dollar amount of what First Mount Vernon alleges the Debtor owed on the FMV Loan as of May 13, 2002, inclusive of all interest and other charges relative to the FMV Loan that, the Court presumes, were then contractually due and owing. See Arthur G. Bennett Aff., ¶ 19 (part of Docket No. 17).
As the Court orally conveyed to the parties at the hearing on the instant matter held on May 21, 2003, the Court shall deny both the Debtor's motion and First Mount Vernon's cross-motion for summary judgment as the same pertain to the Debtor's constructive fraudulent conveyance count because, if for no other reason, a genuine issue exists as to the relevant value of the Maryland Realty on May 13, 2002, which value is unquestionably material to a resolution of the Debtor's constructive fraudulent conveyance count. The Court holds, however, that the value of what First Mount Vernon gave to the Debtor in return for the recording of the Deed is equal to whatever, in fact, is the dollar amount of the Debtor's indebtedness on the FMV Loan as of May 13, 2002, inclusive of all unpaid interest and other charges then due and owing on such loan in accordance with the contracts that pertain to such loan. The Court holds as it does because (a) First Mount Vernon accepted the Deed in full satisfaction of the Debtor's indebtedness on the FMV *649 Loan, see 12/13/02 Stipetich Dep., Docket No. 19, Ex. 18 (copy of the Deed), which acceptance, however, was conditioned on the Debtor's failure to locate a successful purchaser for the Maryland Realty prior to the depletion of an escrow fund, see Arthur G. Bennett Aff., ¶ 17, (b) the aforesaid condition attached to First Mount Vernon's acceptance of the Deed presumably did not occur until at or about May 13, 2002, at which time (i) First Mount Vernon recorded the Deed, and (ii) the FMV Loan, pursuant to the Deed, was thus satisfied by virtue of the conveyance of the Deed, (c) the satisfaction of the outstanding balance on the FMV Loan as of May 13, 2002, is thus that which was given by First Mount Vernon to the Debtor in return for the May 13, 2002 recording of the Deed, and (d) all unpaid interest and other charges then contractually due and owing on the FMV Loan must be allowed given that, as set forth in Part I of the instant opinion, none of such interest and other charges are usurious under Maryland's usury laws. Furthermore, the Court does not presently understand the Debtor to disagree with First Mount Vernon that approximately $740,000 was contractually due and owing on the FMV Loan as of May 13, 2002, inclusive of interest and other charges contractually due and owing with respect to such loan. Therefore, and assuming that the Debtor does not contest such $740,000 figure, $740,000 will, for purposes of the Debtor's constructive fraudulent conveyance count, equal the value that the Debtor received in return for the recording of the Deed.
III.
The Debtor asserts, First Mount Vernon admits, and the Court agrees that the Court has subject matter jurisdiction over each of the three counts contained in the Debtor's adversary complaint, although the statutory basis for such jurisdiction is actually found in 28 U.S.C. § 1334(b) rather than, as is asserted by the Debtor, in 28 U.S.C. § 157(b)(2)(H), (K), and (O); the paragraphs in 28 U.S.C. § 157(b)(2) serve to provide a list of matters that will be considered core proceedings within a bankruptcy court after it has been determined that subject matter jurisdiction therein exists via § 1334(b), which jurisdiction is referred to such bankruptcy court via 28 U.S.C. § 157(a).
The Debtor also asserts that the entirety of the matters raised by way of her complaint constitute a core proceeding pursuant to § 157(b)(2)(H), (K), and (O). First Mount Vernon admits the substance of such assertion by the Debtor. The Court agrees that the Debtor's Count 2, that is the Debtor's constructive fraudulent conveyance action, constitutes a core proceeding pursuant to § 157(b)(2)(H). However, the Court sua sponte determines, as it is authorized to do pursuant to 28 U.S.C. § 157(b)(3), that the Debtor's Count 1, that is the Debtor's usury law violation action, constitutes a noncore proceeding notwithstanding the parties' agreement to the contrary. The Court holds as it does because (a) the extent of the Court's subject matter jurisdiction, that is whether a proceeding is core or noncore, must be ascertained separately with respect to each claim for which relief is sought within an adversary proceeding, see In re Passodelis, 234 B.R. 52, 62 (Bankr.W.D.Pa.1999) (quoting from and citing to Halper v. Halper, 164 F.3d 830, 836 & 838-839 (3rd Cir.1999)), (b) it thus matters not when ascertaining whether the Debtor's usury law violation action constitutes a core matter that the Debtor's separate count for constructive fraudulent conveyance is a core matter, (c) "`[a] proceeding is core [1] if it invokes a substantive right provided by Title 11 [of the U.S.Code] or [2] if it is a proceeding, that *650 by its nature, could arise only in the context of a bankruptcy case,'" In re Guild and Gallery Plus, Inc., 72 F.3d 1171, 1178 (3rd Cir.1996); Halper, 164 F.3d at 836-837, (d) the Debtor's usury law violation claim neither invokes a substantive right provided by Title 11 nor is a proceeding that by its nature could only have arisen within the context of a bankruptcy case, and (e) the Debtor's usury law violation claim does not fall within any of the illustrative matters listed in § 157(b)(2) including, and notwithstanding the contrary plea of the Debtor, those matters set forth in paragraphs (H), (K), and (O) of § 157(b)(2).
Because the Debtor's constructive fraudulent conveyance action constitutes a core matter, the Court is empowered to enter final orders and judgments with respect thereto. See 28 U.S.C.A. § 157(b)(1) (West 1993). However, since the Debtor's usury law violation count constitutes only a noncore matter, the Court may enter final orders and judgments regarding such action only if the parties consent thereto. See 28 U.S.C.A. § 157(c) (West 1993). Must such consent be express or can it also be implied? Furthermore, if such consent must be express, how can express consent be effected?
The bankruptcy rules straightforwardly provide that, within the context of an adversary proceeding, such as, for instance, the present one wherein arises the Debtor's usury law violation claim, final orders and judgments may not be entered by a bankruptcy court with respect to a noncore matter "except with the express consent of the parties." Fed.R.Bankr.P. 7012(b), 11 U.S.C.A. (West 2003) (emphasis added). Relying on such bankruptcy rule, some courts hold that the requisite consent under § 157(c) can only be express and cannot be supplied by implication. See, e.g., In re Norton, 87 B.R. 1021, 1022-1023 (Bankr.D.S.D.1988) (finding that the matters at issue therein were noncore despite the parties' agreement to the contrary, failing to find the requisite consent under § 157(c) by implication notwithstanding the parties' aforesaid agreement, and directing the parties to amend their complaint, counter-complaint, and responses thereto so as to indicate whether they expressly consent to the entry of final orders and judgments regarding noncore matters). Such bankruptcy rule notwithstanding, however, much caselaw exists to the effect, indeed perhaps "`[t]he substantial weight of authority [ ] indicates[,] that a party can impliedly consent to entry of judgment by the bankruptcy court in a non-core related matter.'" In re Pisgah Contractors, Inc., 215 B.R. 679, 682 (W.D.N.C.1995) (quoting from In re Johnson, 960 F.2d 396, 403 (4th Cir.1992), and citing other similar decisions); see also 10 Collier on Bankruptcy ¶ 7012.11 at 7012-25 n. 3 (Bender 2003) (citing numerous cases to the same effect); In re Farmland Industries, Inc., 2003 WL 1950004 at *4 (Bankr.W.D.Mo.2003) (plaintiff deemed to have consented to the entry of a final order or judgment in a noncore matter by virtue of having filed complaint in the first place). Moreover, case authority exists for the proposition that a defendant's admission that a matter is core "may be deemed an expression of consent to allowing . . . [a] court to determine . . . [a] matter, even if it is non-core." In re Grigsby, 119 B.R. 479, 484 (Bankr.E.D.Pa.1990), vacated on other grounds, 127 B.R. 759 (E.D.Pa.1991). Of course, if such an admission by a defendant constitutes express consent by that party to the entry of final orders and judgments in a noncore matter, then certainly a plaintiff's allegation contained within a complaint to the effect that a matter is core should also constitute similar express consent indeed, the Court believes that to deem such an allegation by a *651 plaintiff an expression of such consent is particularly appropriate given that plaintiffs in general, at least in the Court's experience, will, from time to time, allege that matters are core when they full well know the exact opposite, that is that such matters are noncore, with the hope that, by so alleging, perhaps they can obtain the entry of a final judgment by the Court in their favor.
In light of the foregoing, the Court rules that the parties herein expressly consented to the entry of final orders and judgments with respect to the Debtor's usury law violation claim, with such express consent effected by virtue of the Debtor's allegation and First Mount Vernon's admission to the effect that such claim is core; such ruling negates the necessity of having to resolve whether the consent called for by § 157(c) can be supplied by implication. Because the parties consent to the entry of final orders and judgments with respect to the Debtor's usury law violation claim, the Court's rulings in Part I above, to wit that First Mount Vernon's cross-motion for summary judgment is granted and the Debtor's motion for summary judgment is denied with prejudice to the extent that the same pertain to the Debtor's Count 1 for usury law violation, shall constitute a final, in contrast to a proposed, order/judgment upon the Court's full adjudication of the remaining counts within the Debtor's complaint (i.e., Counts 2 and 3 therein). As an aside, the Court notes that, from a practical standpoint, whether its rulings with respect to the Debtor's usury law violation claim can constitute a final order rather than a proposed order may not be significant, and notwithstanding that proposed rulings by a bankruptcy court both factual and legal that are the subject of a specific objection are reviewed de novo by a district court, see 28 U.S.C.A. § 157(c)(1), whereas only legal rulings by a bankruptcy court are subjected to de novo review by a district court on appeal, see 1 Collier on Bankruptcy ¶ 3.03[3][c] at 3-51 n. 9 & ¶ 5.11 at 5-37 (Bender 2003) (quoting from Fed.R.Bankr.P. 8013). The Court believes as much because the Court disposed of the Debtor's usury law violation claim by way of the entry of a summary judgment, which means necessarily that the Court, in ruling as it did, both (a) abstained from making any findings regarding disputed facts, and (b) thus only drew relevant legal conclusions, which legal conclusions, as set forth above, are subjected to de novo review by a district court regardless of whether they are final or proposed; put differently, the Court believes that its rulings with respect to the Debtor's usury law violation claim will be subjected to de novo review by the District Court regardless of whether the parties consented to the entry by the Court of final orders and judgments with respect to such claim.
IV.
IN SUMMARY, (a) with respect to the Debtor's usury law violation count, First Mount Vernon's cross-motion for summary judgment is GRANTED and the Debtor's motion for summary judgment is DENIED WITH PREJUDICE, and (b) with respect to the Debtor's constructive fraudulent conveyance count, both the Debtor's motion for summary judgment and First Mount Vernon's cross-motion for summary judgment are DENIED WITHOUT PREJUDICE.
NOTES
[1] First Mount Vernon asserts, and the Court agrees, that none of the interest or other charges relative to the FMV Loan would have been usurious had the FMV Loan been extended to the Debtor pursuant to the provisions of Subtitle 10 of Title 12 of Maryland's Annotated Code (Credit Grantor Closed End Credit Provisions). See Md.Code Ann., Commercial Law § 12-1003(a) (West 2003) (maximum interest charged on FMV Loan was equal to 24% annually, which rate is authorized under this statutory provision) & Md.Code Ann., Commercial Law § 12-1005 (West 2003) (see, in particular, subsection (a)(3)(i), which allows for unlimited fees if a loan is "[s]ecured by a first lien on residential real property;" FMV Loan was secured by first lien on what the Debtor contends is residential realty). However, First Mount Vernon concedes that (a) it needed to make an election to lend under such subtitle, which election it did not make when extending the FMV Loan to the Debtor, and (b) the provisions of such subtitle are thus irrelevant to a determination now as to whether certain of the interest and other charges relative to the FMV Loan are usurious under § 12-103.
[2] First Mount Vernon, at various points in its first Memorandum of Points and Authorities, characterizes its estoppel position as one that is predicated upon the application of the doctrine of collateral estoppel rather than equitable estoppel. The preceding notwithstanding, however, First Mount Vernon supports its estoppel position by quoting at length from and citing liberally to decisions that deal with the doctrine of equitable rather than collateral estoppel. Furthermore, it is clear to the Court that (a) the doctrine of collateral estoppel has no applicability to the instant matter, and (b) the doctrine of equitable estoppel is particularly germane to a resolution of the instant matter, see infra pp. 14-18. Therefore, the Court shall henceforth refer to First Mount Vernon's estoppel position as one that is predicated upon the application of the doctrine of equitable rather than collateral estoppel.
[3] Md.Code Ann., Commercial Law § 12-103(a)(3) also provides that:
on a loan made on or after July 1, 1982, a lender may charge an effective rate of simple interest not in excess of 24 percent per year on the unpaid principal balance, provided that[, inter alia,] . . . (v)[t]he loan does not include a balloon payment, unless payment in full is due on demand or in one year or less.
Md.Code Ann., Commercial Law § 12-103(a)(3) (West 2003). However, First Mount Vernon cannot utilize this particular portion of Maryland's § 12-103(a)(3) as statutory authority to charge 24% interest on the FMV Loan because (a) such loan includes a balloon payment, see 12/13/02 Stipetich Dep., Docket No. 19, Ex. 1 (Balloon Deed of Trust Note, p. 1), and (b) full payment on such loan was due neither on demand nor within one year after such loan was made (FMV Loan was made on March 12, 2001, and full payment was not due until April 1, 2002), see Id.
[4] Md.Code Ann., Commercial Law § 12-103(e)(1)(i) provides that "[a] lender may charge interest at any rate if the loan is . . . [a] loan made to a corporation." Md.Code Ann., Commercial Law § 12-103(e)(1)(i) (West 2003). Section 12-103(e)(1)(i) obviously does not apply with respect to the FMV Loan given that the same was made to the Debtor, who is an individual rather than a corporation.
[5] The rationale for the conclusion in the text that immediately precedes the instant footnote follows: (1) If the circumstances warrant, and the competitive forces within the lending market support, charging a relatively high rate of interest on a loan, and if such circumstances and competitive forces have not changed when the borrower of such loan seeks to refinance, then one would certainly expect that a lender, generally speaking, would not wish to participate in the refinancing of such loan unless such lender could continue to earn on the refinancing roughly the same return that was earned on the initial loan; and (2) That being the case, if a refinancing can transform what was a loan upon which, relatively speaking, a high interest rate legally could be, and was, charged into one upon which such a rate cannot legally be charged, then one would likewise expect that, provided that a borrower's circumstances do not change and market forces remain constant, the market of available lenders for such refinancing would be extremely slim if nonexistent. Applying the foregoing rationale to the instant Debtor, in particular, the Court suspects that she very well might not have been able to obtain a refinancing of either the Initial Loan or the 1st Refinancing Loan had such refinancing transformed either such earlier loan from a commercial loan, for which a high rate of interest could be, and presumably was, charged, into a non-commercial loan, for which such a rate could not be charged, because the Court understands neither the Debtor's circumstances primarily her monthly income nor the competitive forces of the lending market to have appreciably changed since she obtained either the Initial Loan or the 1st Refinancing Loan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1276111/ | 286 S.C. 486 (1985)
334 S.E.2d 528
STATE of South Carolina, ex rel. T. Travis MEDLOCK, Attorney General, Appellant,
v.
LOVE SHOP, LTD., John A. Williamson, Robert V. Bondy, and William E. Flatt, Defendants, of whom John A. Williamson and Robert V. Bondy are Respondents. Appeal of John A. WILLIAMSON and Robert V. Bondy.
0545
Court of Appeals of South Carolina.
Heard June 17, 1985.
Decided August 27, 1985.
*487 Atty. Gen. T. Travis Medlock and Asst. Atty. Gen. C. Richard Kelly, Columbia, for appellant.
John A. Williamson and Robert V. Bondy, pro se.
Heard June 17, 1985.
Decided Aug. 27, 1985.
Per Curiam:
This action was brought by the State against the defendant Love Shop, Ltd. and three of its officers for violating *488 the South Carolina Unfair Trade Practices Act, S.C. Code Ann. Sections 39-5-10 to -560 (1976). The circuit court, the Honorable E.C. Burnette presiding, entered an order of default against Love Shop, Ltd. and respondents John Williamson and Robert Bundy upon their failure to answer. The court also scheduled a hearing to determine appropriate relief before Special Circuit Court Judge James C. Harrison, Jr.
Judge Harrison ordered dismissal of the actions against the respondents Williamson and Bondy after the State's presentation of its evidence of damages. He found that the State had failed to effect service on Williamson and had failed to prove that Bondy was a "controlling person" of Love Shop, Ltd. within the meaning of the Unfair Trade Practices Act. It is from these two rulings that the State appeals, contending Judge Harrison erred in reversing findings entered earlier by Judge Burnette in his order of default. We agree, reverse and remand.
It is settled that one circuit judge does not have the power to review, modify, affirm or reverse the findings of another circuit judge. Cook v. Taylor, 272 S.C. 536, 252 S.E. (2d) 923 (1979); Sheppard v. Kimbrough, 282 S.C. 348, 318 S.E. (2d) 573 (Ct. App. 1984). The question is whether Judge Burnette entered findings on the issues ruled by Judge Harrison. We hold that he did.
Before a default judgment may be entered the plaintiff must prove and the court find that jurisdiction of the defaulting party was acquired by lawful service of process. S.C. Code Ann. Section 15-35-310 (1976); 49 C.J.S. Judgments Section 211 (1947). In entering an order of default, therefore, the court necessarily found that it had jurisdiction of Williamson. In addition, it explicitly found that "the Defendants Love Shop, Ltd., John A. Williamson, and Robert V. Bondy have been duly served with a Rule to Show Cause, Summons and Complaint." Judge Harrison's subsequent ruling that Williamson was not served thus reversed Judge Burnette's finding and was error.
Likewise, entry of an order of default is an admission by the defaulting party of the well-pleaded allegations of the complaint:
*489 The defendant, by waiving a contest and suffering a default to be taken against him, admits the truth of the allegations, set out in the plaintiff's declaration or complaint.... Hence the default authorizes the entry of any judgment warranted by the facts alleged.
Gadsden v. Home Fertilizer & Chemical Co., 89 S.C. 483, 487-88, 72 S.E. 15, 17 (1911) quoting Gillian v. Gillian, 65 S.C. 129, 132, 43 S.E. 386, 387 (1903).
Based on respondent Bondy's admission by default, Judge Burnette found him individually liable for the acts alleged. Judge Harrison was bound by the admission and finding. Cook v. Taylor, 272 S.C. at 536, 252 S.E. (2d) at 923. His reversal of the finding was therefore error.
For the reasons given, the judgment under appeal is reversed and the case is remanded to the circuit court for determination of appropriate damages against the respondents Williamson and Bondy.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3858777/ | Argued November 22, 1938.
This case is an action for divorce a vinculo matrimonii, brought by Benjamin Fishman, libellant, against his wife, Rebecca Fishman. The libel alleged as grounds for divorce (1) cruel and barbarous treatment, endangering his life, and (2) indignities to his person such as to render his condition intolerable and life burdensome. The master, before whom the case was heard, recommended a divorce on the ground of indignities to the person. The report of the master having been approved, the court below entered a final decree which is assigned as error.
Where an action is heard before a master, we are required to consider the evidence de novo, pass upon its weight and upon the credibility of witnesses, and reach an independent conclusion upon the merits as to whether a legal cause for divorce has been established: Huston v. Huston, 130 Pa. Super. 501,197 A. 774. And the burden is upon the libellant to prove his case by a preponderance of clear and satisfactory evidence: Mayer v. Mayer,133 Pa. Super. 128, 2 A.2d 37.
Benjamin Fishman and Rebecca Fishman were married on June 15, 1909. As a result of the marriage, six children were born, two of whom died very early in life. Of the remaining four children, three — Ervin, Ida and Bertha — have been living with the libellant since respondent's separation. The fourth child, Eva Fishman Propper, is married and resides with her husband.
Eight hearings were held before the master, and hundreds of pages of testimony were taken. Nine witnesses, including all of the four children, testified in *Page 219
behalf of the libellant; on the other hand, the respondent produced no witnesses other than herself.
The master, in his report, specifically found, ". . . . . . that respondent did over a period of time, unwarrantedly accuse libellant of improper conduct with his sister-in-law and of evil intent toward other women . . . . . . that these accusations were accompanied by insulting and humiliating conduct, as well as violence . . . . . . that respondent was guilty of numerous unwarranted outbursts of temper, in which she frequently directed toward libellant a storm of physical and verbal abuse . . . . . . that respondent, on numerous occasions, over a long period of time, humiliated her husband before his friends, and in his relations with them." The master concluded, from the facts revealed by credible testimony, that respondent had rendered the condition of her husband intolerable and life burdensome.
The report of the master, although only advisory and not controlling, is to be given the fullest consideration, particularly as regards the credibility of the witnesses, as he has had the advantage of seeing the parties and hearing the testimony: Wiley v. Wiley, 125 Pa. Super. 547, 549,190 A. 363; Golden v. Golden, 134 Pa. Super. 211, 3 A.2d 941.
A careful reading of the record reveals that, although all of the witnesses did not testify in a manner to corroborate each other, the major charges directed against respondent are corroborated by all the witnesses. The serious trouble between the parties began early in 1932, from which time forward libellant's life was made miserable for him. He was made the direct object of her ungovernable temper. She often manifested her rage by the hurling of abusive language and vile names, but on many occasions substituted more weighty objects, such as a shoe, an iron, or a frying pan. At closer range, pinching, scratching and physical blows were effectively administered. Many of these physical attacks took place in the presence of witnesses and the *Page 220
testimony in this respect was corroborated. Respondent repeatedly leveled baseless charges of infidelity at libellant, attacked his reputation for good moral character and accused him of being directly responsible for the death of two of their children through neglect and carelessness on his part. Time and time again she humiliated him before his friends and in the presence of their children.
The record is replete with many particular instances illustrative of respondent's character and of her abuse of libellant. It would be to no purpose to review the entire testimony in relation to her conduct. However, the more serious acts of misconduct do require discussion. Libellant testified that on one occasion when the parties lived at Medford, New Jersey, respondent became enraged because of a visit libellant had made to his sister-in-law, Anna, and threw a frying pan at him. Their daughter, Ida, described this incident and testified that her mother had accused her father of improper relations with Anna. Anna was made the subject of many a quarrel and the basis for respondent's nagging libellant over a period of many years. On another occasion, when the parties first moved to Glassboro, New Jersey, libellant had offered to show a lady visitor through the upper part of the house. Respondent imputed improper motives to libellant in his offer of assistance. She also accused libellant of winking at a woman customer in the store, of being intimate with a neighbor, the barber's wife, and of loving another woman. It appears from the evidence that all these charges, ranging from flirtations to infidelity on the part of libellant were entirely baseless and without any foundation whatsoever.
Another very serious offense is attributed by the testimony to the respondent. On one occasion, she told a Mrs. Lichtman that their baby, Dorothy, had died because her husband had failed to furnish food. At the hearing, respondent repeated this accusation. The fact *Page 221
was brought to light, however, that at the time of Dorothy's death, and for some time previous thereto, respondent had the bank account in her name, and other money in her control. Likewise, at the hearing, respondent charged that the death of another child, David, was due to libellant's neglect in watching him. These charges of neglect of duties, levelled at libellant, resulting in the death of his children, are, insofar as the evidence indicates, without any support in fact. Such baseless charges directed at libellant constitute the more serious, though by no means the entire part of respondent's course of misconduct. That other greatly humiliating treatment was suffered at her hands is amply sustained by the record. The testimony also discloses that libellant's health had suffered and that he had become thin and nervous as a result of his wife's conduct, but that since the parties have been separated, he is much improved in health.
Accusations of misconduct and infidelity, made without foundation and persisted in so as to become a course of conduct, constitute a species of indignities and, when they are accompanied by other insulting and humiliating conduct, are sufficient to warrant a decree of divorce: Secor v. Secor,126 Pa. Super. 561, 191 A. 647.
Libellant has, in our opinion, met the burden of proving his case by a preponderance of clear and satisfactory evidence. His testimony was strongly corroborated by the testimony of his children and by disinterested witnesses. Respondent, however, produced no witnesses and her testimony was uncorroborated. We conclude that respondent, by a continuous course of conduct toward libellant, rendered his condition intolerable and life burdensome.
Decree affirmed. *Page 222 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523776/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00312-CV
Marcel MARTINEZ,
Appellant
v.
GOLD STANDARD PLUMBING, LLC,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-17644
Honorable Aaron Haas, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice
Delivered and Filed: April 8, 2020
JUDGMENT SET ASIDE AND REMANDED
On March 17, 2020, Appellant/Cross-Appellee Marcel Martinez and Appellee/Cross-
Appellant Gold Standard Plumbing, LLC filed a “Joint Motion to Dismiss Appeal.” The parties
assert that they have reached an agreement to settle their dispute and request that the judgment of
the trial court be set aside and the cause remanded to the trial court for rendition of a judgment in
accordance with the parties’ settlement agreement. The motion is granted. Accordingly, the final
judgment of the trial court signed on February 14, 2019, and corrected on March 20, 2019, is set
04-19-00312-CV
aside without regard to the merits, and the cause is remanded to the trial court for rendition of
judgment in accordance with the parties’ settlement agreement. TEX. R. APP. P. 42.1(a)(2)(B).
PER CURIAM
-2- | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3863879/ | This is a cause in equity, begun by a bill of complaint that was filed by the administrator of the estate of Olney L. Pickering against the administrator of the estate of J. Everett Pickering, who was the son of Olney L. Pickering, and against the Rhode Island Hospital Trust Company. The subject matter of the suit is the ownership of a savings bank account which, at the death of Olney L. Pickering, was in that bank in the name of J. Everett Pickering, who is generally hereinafter referred to as Everett Pickering and who died about nine years after the death of his father and without having learned of that account, so far as appears. Each of the administrators asserted that the account belonged to the estate of his own decedent.
The cause was heard in the superior court on bill, answer, cross-bill and evidence, the latter being in the form of an agreed statement of facts; and the trial justice filed a decision in which he held the respondent administrator to be entitled to the bank account. A decree was entered accordingly and the cause is now before us on the appeal of the complainant administrator. The material facts set out in the agreed statement are as follows: Olney L. Pickering, on June 16, 1915, deposited the sum of $890.25 in the Mechanics Savings Bank, Woonsocket, Rhode Island, in the sole name of his son J. Everett Pickering, whose whereabouts at that time were not known, intending to make a gift thereof to this son. The bankbook, immediately upon its issuance, was left by Olney Pickering with the bank for *Page 267
safekeeping. Two additional deposits were made to the same account and no withdrawals were ever made. In December 1928 the Mechanics Savings Bank was absorbed by the Rhode Island Hospital Trust Company with all its accounts and deposits, and the account in question has remained inactive in the possession of the trust company and now amounts to about $2600.
At the time of the original deposit Everett Pickering had been missing for about five years, having left his wife in 1911 after being married three years. Save for a single postcard received in 1914, she had never heard from him, nor had she been able to communicate with him. However, she maintained relations with Olney Pickering, and was accustomed to make periodical visits to the latter's home. Yet she never learned of the deposit in her husband's name until 1922. At that time Olney Pickering handed her a bankbook of an account of $100 which he had opened in his own and her names, and said: "I have already taken care of Everett" and informed her that the bankbook in Everett's name was at the bank for safekeeping, but she could have it if she wanted it.
Two years after this incident, to wit, in March 1924, she received a letter from her husband, Everett, bearing a New York address. She notified Olney Pickering of this fact, and he thereupon turned over to her the bankbook in question with instructions to send it to Everett. Instead of sending the book as she was directed, she sent a letter in which she made no mention of the book. This letter was returned to her undelivered; and it is agreed that Everett never had any knowledge whatever of this deposit in his name.
She retained possession of the bankbook for approximately six months, when, at Olney Pickering's request, she returned it to him, in order that he might have interest credited thereon. At the same time she also returned to him, for a similar purpose, the bankbook standing in both *Page 268
their names. The latter book he returned to her, but retained the book standing in Everett Pickering's name.
On January 1, 1928, Everett Pickering not having been heard from since 1924, Olney Pickering attempted another disposition of the deposit in question. In a writing bearing that date, he declared that if Everett Pickering was not heard from within six years, the money was to be divided equally among the specifically named children of another son. The writing also contained the statement that the book was being left in the care of Lucy England, a daughter of Olney Pickering. However, the book was found among the effects of Olney Pickering after his death in 1929. Everett Pickering was not heard from within six years from the date of the above-mentioned writing, nor subsequently, until notice was received of his death in 1938.
The same bank account was involved in two previous cases which came before this court, Pickering v. Pickering,64 R.I. 112, and Pickering v. Higgins, Admr., 69 R.I. 22; but in neither of them was involved the question which is in issue in the instant cause.
The trial justice based his decision herein mainly upon two statements quoted by him from the article on "Gifts" in 28 C.J. 617, at 639, 662. These statements, with which the complainant's attorney says he "has no quarrel," are as follows: "While there must be a delivery and acceptance to complete the gift, it does not necessarily follow that the delivery must be made directly to the donee, but the delivery may be to a third person for the benefit of the donee. Where a delivery is thus made to a third person, the question whether the gift was thereby completed without actual delivery to the donee depends entirely upon whether the person to whom the property is delivered receives it as the donor's agent or as trustee for the donee.
"Where the donor deposits money in the name of the donee and delivers to him, or to a third person for him a pass book therefor . . . the transaction is a valid gift inter vivos." *Page 269
At the end of the agreed statement of facts hereinbefore set forth and above the signatures thereto of the attorneys for the contesting parties, is the following paragraph: "Upon the above statement of facts, the question has arisen whether Olney Pickering made a complete and irrevocable gift of the deposit standing in his son Everett's name by handing the passbook to the latter's wife with instructions to send it to him, or whether he still maintained title and control of said deposit and the intended gift failed for want of completion."
This paragraph is not a statement of one of the facts
agreed upon by these attorneys, but is only a statement of a question of law as to which those attorneys differed; and although the trial justice based his final decision upon an affirmative answer to the question thus stated, we are not therefore bound to treat it as the decisive issue in the case. On the contrary, we are convinced that before discussing that question we should decide, on the facts stated, whether Olney Pickering had made a valid gift to his son Everett of the bank account in question by depositing money in the Mechanics Savings Bank to the credit of this son, having the book which represented the deposit issued so as to make the money payable on Everett's order and leaving the book in the custody of the bank for the benefit of Everett.
In Howard, Admr. v. Savings Bank, 40 Vt. 597 (1868), the plaintiff's intestate, Almira Goodell, deposited of her own money in the defendant bank $220 in the name of Adaline F. Brown, her niece, and received a deposit book upon which the treasurer of the bank made the following entry: "1864, No. 530. Adaline F.Brown deposited $220." The latter died in May 1865 and Almira Goodell died during the next August. Immediately after the latter's death the deposit book was found among her effects and a little later came into the hands of the plaintiff as administrator of her estate. He demanded from the bank the amount due thereon; and the husband of Adaline Brown also demanded from the bank that amount as having belonged to his wife *Page 270
at the time of her death. Under the circumstances the bank refused to comply with either demand and this action was brought to determine the ownership of the deposit.
There was no evidence that Adaline Brown in her lifetime had any knowledge of the deposit or that her husband had any such knowledge until after the decease of Almira Goodell. He was made a defendant in the case. At a jury trial the trial justice directed a verdict for the defendants and the case was heard in the supreme court on the plaintiff's exception to this direction and the exception was overruled.
In its opinion, at page 599 of the report, the court said that it appeared "that both Almira Goodell and the bank at the time the deposit was made, treated it as made by Adaline F. Brown and as her property." The court said also that the treasurer of the bank made in her name a duplicate of the entry in its books.
Then follows in the opinion this language: "The presumption is that all this was done by and under the direction of the donor, and intended by her as evidence of a perfected gift. The bank in virtue of the deposit had the right to regard Adaline F. Brown as the depositor and legal owner of the money. The transaction constituted an agreement, a legal privity between the bank and Adaline F. Brown, by force of which the bank became accountable to her and to no other person; she thereby became bound by the by-laws and regulations of the corporation in respect to the deposit, after which the donor had no power to recall the gift, and it is not claimed that she ever attempted to recall it."
The court said also that the plaintiff's counsel insisted that the deposit book was the evidence of the deposit and was retained by the intestate; and that the bank was liable to pay the deposit to the lawful holder of the book and therefore the gift was never perfected. As to this contention the court said: "It is true that the deposit book is evidence of the deposit, but it is no better evidence than the entry of the deposit in the treasurer's book and retained by him." *Page 271
Just a few lines farther on, the court said that the deposit "was evidence only that Adaline F. Brown had deposited $220 in the defendant bank, but the book, in the hands of Almira Goodell, the defendants knowing as they did, the origin and character of her possession of it, was no evidence to the defendants that she had any interest in or right to the deposit. The possession of the book alone, gave the intestate no power or authority to control the deposit or to interfere with it." At page 601 the court said that there was no evidence "that she, at any time after the deposit, made any claim against the bank for the money, or that the bank ever recognized any liability to her on account of the deposit. We are of the opinion that the plaintiff's intestate had no interest in the deposit at the time of her decease."
That case is cited with evident approval in Ray v.Simmons, 11 R.I. 266 (1875), a similar case except that therein the deposit in a savings bank was made by the depositor in his own name as trustee for the plaintiff; and a book thus describing the account was issued to the depositor. He handed it to her and she then returned it to him; and he kept it until his death. This court held that there was a valid trust for her benefit.
In Minor v. Rogers, 40 Conn. 512 (1873), a widow with a considerable estate and no children deposited $250 in a savings bank in her own name as trustee for a boy thirteen years old, whose parents were near neighbors and friends of hers, and told these parents what she had done and that he would need the money for his education. Later on, having retained the book, she drew out all the money covered thereby and spent it for her private purposes. It was held by the court that a trust was established for the benefit of the boy and that he was entitled to recover from her estate all that money with bank interest thereon. In the opinion the case of Howard, Admr. v. Savings Bank, supra, and other similar cases, including Gardner v. Merritt, 32 Md. 78
(1869), are cited with evident approval. *Page 272
In the latter case Mrs. Merritt from time to time over a period of five years deposited in a savings bank various sums of money to the account of each of her five grandchildren, subject to her order or that of her daughter. Soon after the death of the grandmother this daughter, who was the executrix of the will of the former, drew out all the money that had been thus deposited and proceeded to treat it as part of the estate. It was held that the deposits were perfected gifts and that the money belonged to the grandchildren.
The case of Minor v. Rogers, supra, was cited with approval and quoted from in the opinion in the case of Martin
v. Funk, 75 N.Y. 134, (1878). In the latter case the intestate, Mrs. Boone, deposited in a certain savings bank $500, declaring at the time that she wanted the account to be in trust for Lillie Willard, who was the plaintiff in the case. The account was so entered, and a passbook was delivered to the intestate which contained these entries: "The Citizens' Savings Bank in account with Susan Boone, in trust for Lillie Willard. 1866, March 23. $500." The latter was then eighteen years old and was a distant relative of the intestate.
The intestate retained possession of the passbook until her death in 1875 and plaintiff was ignorant of the deposit until after that event. The money meantime remained in the bank, with the accumulated interest, until the death of the intestate, except that she drew out one year's interest. The action was brought against the administrator of her estate and the bank for the delivery of the passbook and the recovery of the money.
The court held that a valid trust was created for the benefit of the plaintiff. Beginning at the bottom of page 137 the court says: "The act constituting the transfer must be consummated, and not remain incomplete, or rest in mere intention, and this is the rule whether the gift is by delivery only, or by the creation of a trust in a third person, or in creating the donor himself a trustee. Enough must *Page 273
be done to pass the title, although when a trust is declared, whether in a third person or the donor, it is not essential that the property should be actually possessed by the cestui quetrust, nor is it even essential that the latter should be informed of the trust." The court in its opinion thoroughly discusses the law applicable to such a trust and says at the top of page 138: "Enough must be done to pass the title. . . ."
The court in Martin v. Funk, on page 139, cites the case of Ray v. Simmons, 11 R.I. 266 (1875) in which, as above stated the supreme court of this state cited, with evident approval, Howard, Admr. v. Savings Bank, 40 Vt. 597, supra.
In Ray v. Simmons this court also cited, with evident approval, the case of Wheatly v. Purr, 1 Keen 551, saying with regard to it that therein "the settlor instructed her banks, with whom she had a deposit of £ 3,000, to place £ 2,000 in the joint names of the plaintiffs and her own, as trustee for the plaintiffs. The sum of £ 2,000 was entered by the bankers in their books to the account of the settlor as trustee for the plaintiffs, and a promissory note given for it payable to the settlor trustee for the plaintiffs, or order, fourteen days after sight. A receipt for this note was signed by the settlor and given to the bankers. The trust was held to be effectually created. In our opinion, the case is not distinguishable from the case at bar. Indeed, the case at bar is stronger in that notice of the trust was communicated to the cestui que trust."
In Davis v. Ney, 125 Mass. 590 (1878), Mary Ney, on September 24, 1875, had six separate deposit accounts in a certain savings bank for which she had six bankbooks. On that date, by an assignment, she assigned these deposits and delivered the bankbooks therefor to the treasurer of the bank, the consideration being that he would draw for her whatever she wanted during her life and the balance, if any, left at her death was to be paid by the treasurer to her son. The son was not informed of this agreement until after her decease. After her decease the question was *Page 274
raised as to the ownership of this balance and it was held that it belonged to the son, a trust for his benefit having been created. See also Jones v. Nicholas, 151 Iowa 362 (1911), and cases cited therein, and Streeper v. Myers, 132 Ohio St. 322,7 N.E.2d 554 (1937).
The attorney for the complainant in the instant case mainly relies, in his brief, on Sessions v. Moseley, 4 Cush. 87 (1849) and Flaherty v. O'Connor, 24 R.I. 587 (1903), in which the former case is relied upon and quoted from. But in neither of those cases was a deposit in a savings bank account by one person in the name of another person involved; and in our judgment neither of those cases is of any assistance in the determination of the vital issue in the instant case, as we view it. Nor, in our opinion, is any other case which is relied on by the complainant's attorney.
In the instant case we are of the opinion that, on principle and according to by far the greater weight of authority, the father, in depositing $890.25 in the Mechanics Savings Bank in Woonsocket, and therewith opening an account for that sum in the name of and payable to his son J. Everett Pickering and in having the bankbook made out accordingly and leaving the book in the possession of the bank for his sons, so that the latter could get it at any time by identifying himself and then use it in drawing money from the account, created a valid trust for the benefit of the son, with the bank as trustee.
We are also of the opinion that as the trust was not subject to any condition to be performed or satisfied by the son, there is no necessity of showing that he ever assented to the trust or even learned of it during his lifetime.
The conclusion that such a valid trust was created is also supported by the fact that the father told the son's wife, not long after the deposit was made, that he had already taken care of the son. And his action, taken when he learned that she had received a letter from the son, in getting the book from the bank and delivering it to her for the purpose of having her send it to the son, was fully consistent *Page 275
with a belief by the father that he had already created a valid trust in the son's favor.
Also his action, taken much later, in getting the book from her in order to have accumulated interest credited thereon by the bank was fully consistent with such a belief. Moreover, the fact that, so far as appears, he never drew or tried to draw any money from the account indicates that he regarded it as being in trust for the son.
It is true that very much later he tried to make some other disposition of the fund. But this might well have been due to a belief that his son was dead; and it cannot be given any appreciable weight against a finding that a valid trust in the son's favor was created by the original deposit.
In view of all the facts set forth in the agreed statement, we are of the opinion that the final conclusion arrived at by the trial justice in his decision was correct, though not for the precise reason given by him; and that therefore the final decree entered thereon in favor of the respondent administrator should be affirmed.
The complainant's appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/163713/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 29 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOE R. McBRIDE,
Plaintiff - Appellant,
No. 02-6378
v. (D.C. No. 02-CV-1128 -M)
(W.D. Oklahoma)
JOHN DOE; BIG BROTHER BIG
SISTER PROGRAM,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge , McKAY and McCONNELL , Circuit Judges.
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.
Plaintiff Joe R. McBride, who at the time of filing this appeal was an
Oklahoma state prisoner, brought this action in federal court under a claim of
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
diversity jurisdiction, 28 U.S.C. § 1332(a). He alleges that when he was between
nine and eleven years old, he was sexually assaulted by a man named “Scott,”
who was his mentor in the Big Brother Big Sister Program (“the Program”).
Defendants are the Program and “Scott,” who is denominated in the caption as
“John Doe.” In his complaint, Plaintiff alleged that “Scott” had “moved out of
state” but made no allegations regarding the citizenship, state of incorporation, or
principal place of business of the Program.
The district court adopted the report and recommendation of the magistrate
judge, and dismissed the action for want of subject matter jurisdiction, holding
that Plaintiff “has failed to present sufficient factual allegations demonstrating
diversity of citizenship” with regard to Defendant “Scott.” Although the district
court focused on the lack of jurisdictional allegations regarding “Scott,” we
affirm on the basis of a lack of jurisdictional allegations referring to the Program.
“The party seeking the exercise of jurisdiction in his favor ‘must allege in
his pleading the facts essential to show jurisdiction.’” Penteco Corp. v. Union
Gas Sys., Inc ., 929 F.2d 1519, 1521 (10th Cir. 1991), quoting McNutt v. General
Motors Acceptance Corp. , 298 U.S. 178, 189 (1936). When suing multiple
defendants in a diversity action, the plaintiff bears the burden of proving that
diversity jurisdiction exists for each defendant. United States ex. rel. General
Rock & Sand Corp. v. Chuska Dev. Corp. , 55 F.3d 1491, 1495 (10th Cir. 1995).
-2-
Plaintiff’s filings, both before the district court and before this court,
contain no information from which it can be determined whether diversity exists.
Plaintiff fails to allege what type of entity the Program is or whether he is suing
the local, regional, or national branch of the Program. More significantly,
Plaintiff has not alleged the Program’s citizenship, state of incorporation, or
principal place of business, and thus fails to carry his burden of establishing
diversity with regard to each of the named defendants.
Although we are mindful of our duty to construe the allegations of pro se
litigants liberally, Plaintiff’s filings lack even the most minimal assertions
required to establish jurisdiction in federal court. We find that dismissal is
warranted despite Plaintiff’s pro se status. See Meyerson v. Harrah’s East
Chicago Casino , 299 F.3d 616, 617 (7th Cir. 2002) (dismissing pro se lawsuit for
lack of subject matter jurisdiction when plaintiff failed to allege citizenship of
defendants).
We therefore AFFIRM the district court’s dismissal of the complaint. We
DENY Plaintiff’s motion to proceed without prepayment of the appellate filing
fee. Plaintiff must make immediate payment of the unpaid balance due.
Entered for the Court
Michael W. McConnell
Circuit Judge
-3- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1837813/ | 52 Mich. App. 337 (1974)
217 N.W.2d 99
PEOPLE
v.
JACK DYKSTRA FORD, INC.
Docket No. 15893.
Michigan Court of Appeals.
Decided March 27, 1974.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Edwin M. Bladen and J. Ronald Kaplansky, Assistants Attorney General, for the people.
Anderson, Carr, Street & Hornbach, for defendant.
*339 Before: DANHOF, P.J., and BRONSON and O'HARA,[*] JJ.
O'HARA, J.
This is an appeal on leave granted from a circuit court affirmance of a conviction in district court under a penal statute. We set it forth in relevant parts:
"Sec. 421d. Any person who alters the mileage registered on the odometer of a motor vehicle offered for sale or lease other than by setting it at zero, or who offers for sale or lease any vehicle with knowledge that the mileage registered on the odometer thereof has been altered without disclosing the facts to the prospective purchaser other than by setting it at zero, or any person who modifies the odometer by tampering, or by the elimination, substitution or addition of components designed to increase, delete or prevent the registering of mileage, is guilty of a misdemeanor. It is not a violation of this act to delete or change odometer mileage registered in the course of predelivery testing of any motor vehicle by its manufacturer prior to its delivery to a dealer.
"Sec. 421e. No dealer shall be convicted under the provisions of section 421d if he possesses an affidavit from the immediate prior owner of the motor vehicle attesting to the fact that the odometer has not been set back and stating the exact mileage at the time the dealer purchased the motor vehicle. Said affidavit shall be supplied to any prospective buyer on request. Any person who gives a false affidavit under the provisions of this section is guilty of a misdemeanor." MCLA 750.421d; MSA 28.657; MCLA 750.421e; MSA 28.658.
The statute is attacked by defendant-appellant upon two basic constitutional grounds.
1) Lack of scienter as a required element of the offense.
*340 2) Violation of the equal protection clauses of the United States and Michigan Constitutions.
We do not reach these questions. We opine, in what we readily concede is obiter dictum, that serious constitutional questions arise under both the foregoing specifications of error. We add that the statute might well be vulnerable to constitutional challenge on the ground of vagueness. We commend to the Legislature a review of the statute with attention to the foregoing observations. Its purpose in protecting the public from common ordinary dishonesty is most desirable. No purchaser should be bilked when buying a used motor vehicle the true driven mileage of which has been altered to show lesser mileage. Nonetheless we cannot disregard constitutional safeguards to accomplish a desirable result.
It is to be noted that for whatever reason the Legislature provided that no dealer should be convicted under the penal proviso of the act "if he possesses an affidavit * * * attesting to the fact that the odometer has not been set back and stating the exact mileage at the time the dealer purchased the motor vehicle. Said affidavit shall be supplied to any prospective buyer on request." MCLA 750.421e; MSA 28.658. (Emphasis supplied.)
We set forth herein a replica of the instrument defendant had in its possession at the time the car was purchased and which was offered as an exhibit by defendant.
"ODOMETER-AFFIDAVIT
To be completed by owner
" ROBERT JAMES being first duly sworn deposes and says:
"1. That he is the present owner of a (year) 1970 (make) FIREBIRD, serial no. ___________.
*341 "2. That on the date set out below he sold/traded the afore-described vehicle to DYKSTRA.
"3. That to the best of his knowledge, information and belief, the odometer of said vehicle has not been set back.
"4. That the actual number of miles on said vehicle is 29800.
"Further Deponent Sayeth Not.
"Date: 4/12/71 ROBERT JAMES
Signature of Owner
"Subscribed and sworn to before me this 14th day of APRIL 1971.
" VILNIS MEIERS
Notary Public
"VILNIS MEIERS
"Notary Public, Jackson
County, Michigan. My
commission expires Apr.
20, 1973"
Several things should be noted in connection therewith.
First, the mileage, as found by the district judge in his opinion, is not "exact". It is according to the testimony of the declarer his best estimate of the mileage on the date he sold the car to the defendant. There is no question that the figure was within a hundred miles or so of the actual mileage.
The seller was not required to fill it out at the time of the sale. Admittedly, it was requested of him after he sold the car to defendant, but before defendant sold it to the purchaser. Third, incontestably the instrument was in the dealer's possession at the time of the resale of the vehicle. Fourth, it is uncontroverted that the prospective buyer made no request to see the form. Under the *342 statute there is no requirement to show it to the purchaser absent such request.
There is absolutely no doubt that somebody turned the odometer back from some 29,000 miles to about 13,000 miles after the original owner sold it to the defendant.
Somebody violated the plain terms of the act. We add, again gratuitously, that this was no prank. If it was done by the dealer or his agent, it was done with the guilty purpose of deceiving a used car buyer.
We didn't, however, write this complete defense to conviction therefor into the act by including in it the following:
"No dealer shall be convicted under * * * section 421d [the penal provision] if he possesses an affidavit * * * attesting to the fact that the odometer has not been set back and stating the exact mileage at the time the dealer purchased the motor vehicle." (Emphasis supplied.)
We think we know what the Legislature intended by what it said but in dealing with criminal statutes we are obligated to accept their clear wording irrespective of what we think might have been intended.
The Attorney General, whose consumer protection division initiated this action (not the purchaser), argues most vehemently that the instrument set forth heretofore was not an "affidavit" within the terms of the act because the declarer did not subscribe and swear to it in the presence of the notary who attested to the fact that he did both. The testimony establishes that he did neither. The notary perfunctorily attested both to the fact that it was the seller's signature and that he *343 signed in her presence. The practice is hardly novel but no less improper because of that.
Defense counsel concedes candidly in his brief that the instrument does not comport with the "accepted, classical definition of an affidavit".
Of course, it does not. We think, however, that since the declarer-signer testified that he inserted the mileage in his own handwriting, that the signature was his, that he knew he was signing an affidavit, and that he was in fact swearing to the verity of its contents, it fulfills substantially the statutory requirement. It was in the dealer's possession as of the time the complaint was issued.
It might be well if our Legislature took notice of the fact that to a certain degree Congress has preempted this field by its enactment of a Federal statute. 15 USCA 1981 et seq.
This is not to say that our Legislature cannot enact more stringent requirements than the national Congress in the field. It cannot, of course, by its legislative act excuse compliance with the Federal minimum requirements.
We respectfully but most earnestly suggest to our state Legislature that it reexamine the statute in question in light of our discussion herein and with attention to the cited Federal statute especially in connection with the constitutional challenges raised by appellant.
Because of the general absolution granted by § 421e of the offense specified in § 421d we reluctantly set aside the conviction.
Reversed.
DANHOF, P.J., Concurred.
BRONSON, J. (dissenting).
I cannot share my colleagues' interpretation of this statute and the *344 result reached. The facts giving rise to this prosecution represent, in my mind, the classic situation the statute was enacted to discourage.
Robert James traded in his 1970 Pontiac Firebird automobile to the defendant and purchased another vehicle. At that time all parties agree that the Pontiac had approximately 29,800 miles on the odometer. Little more than one to one and one-half weeks later Mr. James recognized his car on a local street and out of curiosity peeked through the window at the mileage. The odometer then read approximately 14,000 miles. Mr. James next contacted the new owner, Mrs. Mary Farrow.
Mrs. Farrow testified that she and her husband first saw the Pontiac on defendant's lot (approximately four days after Mr. James had traded it in) and the car had 13,769 miles on the odometer at that time. Mrs. Farrow further testified that she and her husband relied on the low mileage as a major factor in their decision to purchase the Pontiac. They placed a deposit on the Pontiac that evening and picked up the car the next day, paying the balance. The Secretary of State's records indicate that there were no owners other than the defendant after Mr. James traded in the car and before it was sold to the Farrows.
At trial, the sales manager, the salesman, and the mechanic handling the sale and delivery of the Pontiac declined to testify and asserted their constitutional privilege against self-incrimination.
When Mr. James traded in his automobile he filled out the "affidavit" reproduced in full in the majority opinion. It is claimed that possession of this "affidavit" accords a defense to the defendant by reason of the first sentence in MCLA 750.421e; MSA 28.658 (quoted by my colleagues). I disagree. First, the "affidavit" was not, in the strict sense, a *345 true affidavit. On its face the jurat demonstrates that it was signed on a different day from the day the signature was affixed by the affiant. I would find this was not an affidavit within the meaning of the statute and affirm on that basis alone. However, I further believe that the first sentence of § 421e, supra, should be read to accord a defense only when the alteration of the odometer's mileage occurred prior to the acquisition of the auto by the dealer or person charged under the statute. Any other construction makes avoidance of the clear intent and legislative purpose an easy matter for the unscrupulous.
The defendant was fined $100 and costs of $50. Because no specific penalty is provided in the statute, the maximum fine and sentence allowed by law is set by MCLA 750.504; MSA 28.772. The penalty allowed is $100 and/or 90 days in jail. It is obvious that the corporation cannot be put in jail. The only effective remedy against the corporation is the fine. In times where it is often commonplace for fines of $100 to be levied in more serious traffic violation cases, a $100 fine should not be commonplace for conviction under this statute. This is especially true where incarceration, as noted, is not available as a deterrent. If the Legislature adopts my colleagues' recommendation and reexamines the statute, they might wish to give specific attention to a penalty provision providing more discouragement against future violation.
I would affirm the conviction.
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/62845/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 28, 2008
No. 08-10350
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-60198-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFERY PERKINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 28, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Robin Farnsworth, appointed counsel for Jeffrey Perkins, has filed a motion
to withdraw on appeal, supported by a brief prepared pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because
independent review of the record confirms counsel’s conclusion that the record
does not contain any potentially meritorious issues for appeal, we GRANT
counsel’s motion to withdraw and AFFIRM Perkins’s conviction and sentence.
2 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3861694/ | Argued May 4, 1938.
Joseph Shilko filed a libel in divorce against his wife, Antoinette Shilko, alleging cruel and barbarous treatment and indignities, and a decree was entered by the court below granting the divorce on the ground of indignities. We are all of the opinion that the decree is not supported by evidence that is clear and satisfactory, as it is required to be: Buys v. Buys,56 Pa. Super. 338; Aikens v. Aikens, 57 Pa. Super. 424;Picciano v. Picciano, 110 Pa. Super. 189, 191, 168 A. 488;Good v. Good, 113 Pa. Super. 592, 594, 173 A. 430.
In divorce cases where there has not been a trial by jury, it is the duty of this court to consider all the evidence and determine independently whether the conclusion reached by the master or the court below is supported by such a preponderance of evidence as the law *Page 397
requires: Reinhardt v. Reinhardt, 111 Pa. Super. 191, 193,169 A. 408. Findings made by the court below or the master are entitled to consideration but have not the conclusiveness of those of an auditor or master in chancery approved by the court in banc: Apelian v. Apelian, 111 Pa. Super. 208,169 A. 454.
This decree was entered a few days prior to the expiration of the term of office of the judge who heard the witnesses and no opinion was filed. Consequently, we have not the benefit of findings of fact or a discussion by the judge. We find the evidence in support of the decree very weak.
The parties had each been married before and libellant had one child and respondent two children when they were married on April 28, 1931. They separated May 27, 1934. When the evidence was taken the libellant was 57 and the respondent 45, and libellant's son had married respondent's daughter.
The libellant depended largely upon his own testimony to show that when they were living in the same house respondent refused at times to occupy his bed, that she swore at him, and that she accused him of having a venereal disease. We have a good picture of the situation with relation to swearing by quoting libellant's own testimony: "Q. Was there any loud and boisterous language used or any swearing at that time? A. Certainly, she was swearing. Q. Did you do any swearing? A. Certainly, I gave her back. Q. You gave it back to her? A. Sure, she swore to me, and maybe I swore at her —" This shows the style of language adopted by the parties themselves and does not indicate that the husband was of such a sensitive nature as to have his condition rendered intolerable by swearing. While there was some evidence to the effect that the wife had said her husband had a venereal disease, she denied that she had so stated. In addition, the admitted course of conduct *Page 398
of the parties would seem to sustain the wife's testimony. The wife further testified that one of the witnesses who corroborated libellant in this respect had come to her after they separated and informed her that libellant had had a venereal disease. We were not impressed with the testimony of the corroborating witness.
The evidence comes far short of establishing such a course of conduct by the wife as to render his condition intolerable and life burdensome. See Brown v. Brown, 124 Pa. Super. 237,188 A. 389; Sharp v. Sharp, 106 Pa. Super. 33, 161 A. 453;Kett v. Kett, 117 Pa. Super. 236, 177 A. 509. Not only so, but there was the testimony of the respondent and several witnesses to the effect that when the parties were living together the libellant was frequently intoxicated, and the wife attributed their troubles to that fact. Indignities provoked by the complaining party are no ground for divorce unless the retaliation is excessive: Richards v. Richards, 37 Pa. 225, 228;Kerr v. Kerr, 115 Pa. Super. 18, 22, 174 A. 820.
The most that could be said for libellant's evidence was that it showed incompatibility between the parties, but that is not a ground for divorce in this Commonwealth.
The decree of the court below is reversed at the costs of the appellant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4062008/ | ACCEPTED
03-15-00157-CV
4726823
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/1/2015 12:31:18 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00157-CV
ARAMARK UNIFORM & CAREER § IN THE THIRD
FILED IN
APPAREL, LLC, § 3rd COURT OF APPEALS
Appellant, § AUSTIN, TEXAS
§ COURT OF 4/1/2015 12:31:18 PM
APPEALS
v. § JEFFREY D. KYLE
Clerk
§
AGENTEK, INC. §
Appellee. § AUSTIN, TEXAS
APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
A. INTRODUCTION
1. Appellant is ARAMARK UNIFORM & CAREER APPAREL, LLC;
Appellee is AGENTEK, INC.
2. This interlocutory appeal is from a denial of a motion to compel
arbitration and stay proceedings in Cause No. D-1-GN-14-005219, pending in the
98th Judicial District Court of Travis County, Texas. (See Notice of Appeal.) In May
2012, the Appellant here filed a claim with the American Arbitration Association
pursuant to the terms of an arbitration agreement that it believed bound the parties.
In December 2014, the Appellee filed its Original Petition in the instant action in
Travis County. In January 2015, Appellant filed its application to compel arbitration
and stay the proceedings in Travis County and also filed an Answer to the Original
Petition. On February 19, 2015, the 98th Judicial District Court heard argument on
Appellant’s application to compel arbitration and stay the proceedings, and shortly
PAGE 1 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
thereafter, on February 24, signed an order denying that motion, and Appellant timely
filed its notice of appeal in the district court on March 10, 2015. (See Id.)
3. Between the time that the district court signed its order and Appellant
filed its notice of appeal, Appellee served two sets of discovery requests on Appellant,
and has offered no indication that it intends to await the disposition of this appeal
before advancing full-ahead in the district court.
4. Because Appellee is moving forward with litigation in the district court,
Appellant moves this court to stay the district court proceedings pending appeal.
Texas Rule of Appellate Procedure 29.5(b) makes it clear that that district court may
not make any orders that “interfere[] with or impair[] the jurisdiction of the appellate
court or effectiveness of any relief sought or that may be granted on appeal.” Whether
the district court makes any order, however, allowing discovery to move forward in
the district court deprives Appellant of the most significant benefit of its agreement to
arbitrate – specifically the right to have disputes resolved in a more efficient and
economical fashion than traditional litigation. In order to protect this right, both the
Federal Arbitration Act (which applies to this case) and the Texas Arbitration Act
authorize litigants to seek immediate appellate review of an order denying a motion to
compel arbitration. If Appellant is forced to incur the expense of litigation before its
appeal is heard, the appeal will effectively be moot (even as this Court has obviously
attempted to expedite this and similar interlocutory appeals), and the Federal
Arbitration Act and Texas Arbitration Act’s right to appeal would be – effectively –
PAGE 2 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
meaningless. As discussed below, because this appeal (i) raises serious legal issues, (ii)
Appellant will be irreparably harmed without a stay of this proceeding pending an
appeal, (iii) Appellee will not be substantially harmed by the granting of a stay, and (iv)
both the public interest in conserving judicial resources and the strong state and
federal policies in favor of arbitration weigh in favor of a stay, the balance of equities
dictate that the district court proceedings should be stayed pending this appeal.
B. ARGUMENT & AUTHORITIES
5. Both the Federal Arbitration Act and the Texas Arbitration Act
authorize immediate appellate review of an order denying a motion to compel
arbitration or refusing a stay of litigation pending arbitration. 9 U.S.C. § 16(a)(1); Tex.
Civ. Prac. & Rem. Code §§ 171.098(a)(1), 51.016. Appellant has obviously exercised
its right to an immediate interlocutory appeal of the district court’s order denying its
application to compel arbitration and stay the district court proceedings.
6. There is no statute or Texas case suggesting that proceedings in the
district court are automatically stayed pending the outcome of an appeal of an order
denying a motion to compel arbitration. To the contrary, the Texas Rules of Civil
Procedure make it clear that “[w]hile an appeal from an interlocutory order is pending,
the trial court retains jurisdiction of the case . . .” and may make any other order that
is not “inconsistent with any appellate court temporary order” and that does not
“interfere[] with or impair[] the jurisdiction of the appellate court or effectiveness of
any relief sought or that may be granted on appeal.” Tex. R. App. P. 29.5. By the same
PAGE 3 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
token, the “appellate court may make any temporary orders necessary to preserve the
parties’ rights until disposition of the appeal . . . .” Tex. R. App. P. 29.3.
7. Appellant urges that the only way to preserve the parties’ rights until
disposition of the appeal is by maintaining the status quo with an order staying any
further proceedings in the district court.
8. While there is no Texas authority directly on point, and this Court is not
bound by federal authority regarding the procedural aspects of this case, Roe v.
Ladymon, 318 S.W.3d 502, 510 (Tex. App. – Dallas 2010), the Texas Arbitration Act
and the Federal Arbitration Act are quite similar, and Texas courts look to federal
cases interpreting the FAA as persuasive in matters governing Texas’s own statutory
scheme, Kilroy v. Kilroy, 137 S.W.3d 780, 787 n.2 (Tex. App. – Houston [1st Dist.]
2004). And the policy behind why federal courts frequently (automatically in a
majority of federal Circuits) stay trial court proceedings pending appeals of denials of
motions to compel arbitration is identical to the policy interest here; if Appellant’s
claims are arbitrable, then the only place it should be required to continue with the
dispute resolution process is in the arbitration.
9. The majority of the United States Courts of Appeal to consider the issue
have held that a stay of all district court proceedings is automatic upon the filing of a
non-frivolous appeal from a denial of a motion to compel arbitration. See Ehleiter v.
Grapetree Shores, Inc., 482 F.3d 207, 215 n.6 (3d Cir. 2007); McCauley v. Halliburton Energy
Servs., Inc., 413 F.3d 1158, 1162-63 (10th Cir. 2005); Blinco v. Green Tree Servicing, L.L.C.,
PAGE 4 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
366 F.3d 1249, 1251 (11th Cir. 2004); Bradford-Scott Data Corp. v. Physician Comp.
Network, Inc., 128 F.3d 504, 507 (7th Cir. 1997). Others have held that staying the case
is discretionary. See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53-54 (2d Cir. 2004);
Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990).
10. Even in jurisdictions where a stay is discretionary, like the Ninth Circuit,
courts overwhelmingly find that a stay should be issued pending the appeal of a denial
of a motion to compel arbitration. See, e.g., Hunt v. Check Recovery Sys., Inc., Nos. C-05-
4993-SBA, C-06-203-SBA, 2008 WL 2468473 (N.D. Cal. June 17, 2008 (granting a
stay and noting that “California district courts frequently issue stays in an action when
there is a matter pending interlocutory appeal.”); Steiner v. Apple Computer, Inc., No. C-
07-04486-SBA, 2008 WL 1925197 (N.D. Cal. Apr. 29, 2008 (granting a stay and
noting that “almost every California district court to consider whether to stay a
matter, pending appeal of an order denying a motion to compel arbitration, has issued
a stay”).
11. The only way to “preserve the parties’ rights until disposition of the
appeal” is by staying the trial court proceedings in this case. If the Court finds that the
arbitration that has been pending since May 2012 is the proper forum for this dispute,
the district court’s and the parties’ resources will have been needlessly expended on
continuing preparations for trial. To force Appellant to litigate this matter while its
appeal is pending is to deprive it of the most significant benefit of the parties’
agreement to arbitrate – specifically, the right to have disputes resolved in a more
PAGE 5 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
efficient and economical fashion than traditional litigation. See Trefny v. Bear Stearns Sec.
Corp., 243 B.R. 300, 309 (S.D. Tex. 1999) (“[Movant] will suffer irreparable injury
absent a stay because it will be forced to participate in discovery under court order
and its right to arbitrate the dispute will be jeopardized by such discovery.”); C.B.S.
Employees Fed. Credit Union v. Donaldson, Lufkin & Jenrette Secs. Corp., 716 F. Supp. 307,
310 (W.D. Tenn. 1989) (“If the defendants are forced to incur the expense of
litigation before their appeal is heard, the appeal will be moot, and their right to
appeal would be meaningless.”).
12. This question is not theoretical; Appellee has served discovery requests
on Appellant, evidencing its intent to have the district court case move forward even
as this appeal is pending.
13. And if the Court grants the stay, it will have no effect on Appellee.
Appellee has had the opportunity at any point after May 2012 to file its suit in the
Texas court, if it believed that the arbitration was improper and should not have been
moving forward. Appellee cannot, therefore, be heard to complain of delay, even if
this appeal had the potential to be lengthy. The reality is that this Court appears to be
treating this appeal expeditiously. And Appellant has not acted to delay any
proceeding at any point, but rather promptly filed a motion to compel arbitration, and
promptly filing a notice of appeal when that motion was denied.
PAGE 6 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
C. CONCLUSION
14. Courts across the country routinely stay district court proceedings
pending an appeal of an order denying a motion to compel arbitration. And given
Appellee’s actions in moving the litigation forward in the district court, this Court
should act to “preserve the parties’ rights until disposition of the appeal” by staying
proceedings in the district court until this Court has an opportunity to determine
whether the case should be submitted to arbitration. Even though the district court
has not yet affirmatively exercised its jurisdiction in a way that renders this appeal
meaningless, the Appellee has used the district court’s continued jurisdiction over this
matter to undermine the Appellant’s right to an immediate appeal of the denial of its
motion to compel arbitration; Appellant has been and will continue to be irreparably
harmed without a stay of these proceedings. Consequently, Appellant respectfully
///
///
PAGE 7 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
requests that the Court stay any further proceedings in Cause No. D-1-GN-14-005219
in the 98th Judicial District Court of Travis County pending resolution of this appeal.
Respectfully submitted,
COLEMAN FROST LLP
By: /s/ Daniel L. Alexander
Daniel L. Alexander
State Bar No. 24058225
429 Santa Monica Boulevard, Suite 700
Santa Monica, California 90401
Tel. (310) 576-7312
Fax (310) 899-1016
daniel@colemanfrost.com
ATTORNEYS FOR APPELLANT
ARAMARK UNIFORM & CAREER
APPAREL, LLC
CERTIFICATE OF CONFERENCE
I hereby certify that, in accordance with Texas Rule of Appellate Procedure
10.1(a)(5), I conferred with counsel for Appellee about the merits of this Motion.
Appellee does not agree to the relief requested in this Motion.
/s/ Daniel L. Alexander
Daniel L. Alexander
PAGE 8 APPELLANT’S MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING APPEAL
CERTIFICATE OF SERVICE
I certify that on April 1, 2015, I served a copy of APPELLANT’S MOTION
TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL on the
counsel listed below by electronic service, and the electronic transmission was
reported as complete. My e-mail address is daniel@colemanfrost.com.
W. Reid Wittliff Attorneys for Appellee
reid@wittliffcutter.com AGENTEK, INC.
WITTLIFF CUTTER, PLLC
1803 West Avenue
Austin, Texas 78701
/s/ Daniel L. Alexander
DANIEL L. ALEXANDER
ATTORNEY FOR APPELLANT
ARAMARK UNIFORM & CAREER
APPAREL, LLC | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3855855/ | Argued April 17, 1925.
The record shows such material departure from equity Rules, 68 etc., that we are constrained at once to remit the record for reconsideration and disposition in accordance with those rules. The decree entered by the lower court cannot be considered as final. A decree nisi should have first been entered.
Decree reversed and record remitted with a procedendo. Costs of this appeal to abide final determination of the case. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3403728/ | 1. The evidence, although conflicting, was sufficient to support the verdict, and the trial judge did not err in overruling the general grounds of the motion for a new trial.
2. A change or alteration which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject matter of a contract intact, is a modification of the contract.
(a) In the present case, the addition of sweetened condensed milk to the other items which the plaintiff was allowed to sell under the provisions of the written contract, for which the plaintiff was to receive a commission of only 3 percent, and the addition of other territory to that specified in the written contract in which the plaintiff was allowed to sell goods and receive commissions on his sales therein, was a modification of the written contract.
(b) If proof goes to the jury without objections which would show a right in the party offering it, the jury may consider it, although there are no allegations in the pleadings setting up the facts thus proved.
(c) Where there has been evidence submitted without objection relating to the same cause of action, which evidence could have been authorized by an amendment to the pleadings, the judge is authorized to charge the jury on the issues thus made by the evidence.
3. The terms of a written contract may be modified or changed by a subsequent parol agreement between the parties, where such agreement is founded on a sufficient consideration.
(a) Since the issue, as to whether or not the written contract between the parties had been modified or changed by a subsequent parol agreement was made by evidence introduced by both the plaintiff and the defendant, without objection from either party, the court did not err in charging the jury with respect thereto, although such modification was not pleaded by the defendant.
4. No error of law appears, and the court did not err in overruling the motion for new trial as amended.
DECIDED FEBRUARY 8, 1946. REHEARING DENIED FEBRUARY 26, 1946.
The plaintiff sued the defendant, alleging in substance: that he and the defendant entered into a contract on September 11, 1941, *Page 495
whereby he was employed as a salesman, and was to receive commissions on his sales at the rate of five percent on merchandise which carried a twelve percent or larger profit to the defendant, and at the rate of three percent on merchandise which carried a profit of ten or eleven percent; that pursuant to the terms of the contract he sold sweetened condensed milk, which carried a profit to the defendant of more than twelve percent; that the defendant was indebted to him in the sum of $4363.93, this being the balance due the plaintiff for commissions on such sales; and that payment of said sum had been refused. He sought a judgment against the defendant for this amount.
The defendant answered, denying in substance the allegations of the petition, and the case was submitted to a jury.
On the trial, the plaintiff introduced in evidence the contract between him and the defendant, which provided in part: "Your employment will be to cover the same territory for us that you are now covering, and add as much additional territory as practical to cover where we are not already represented. This would mean all of the State of Georgia and as much of Alabama as practical, and maybe you would want to go in some parts of Florida. . . Your employment will be on a commission basis, and will be subject to immediate termination at the option of either you or ourselves. Your commissions will be as follows: . . (5) On powdered milk in quantities under 25 bbls., the commission to be 1 to 5 bbls., price 75¢ per bbl. On 25 bbls., price 50¢ per bbl. No commission on carloads. (6) We will want to take as much volume fruit business, or maybe other business that we are not now getting which will be sold on a small profit. Your commissions will be 5% if we get 12% or larger profit, and 3% if our profit is 10 or 11%. We do not intend to handle on a closer basis than this. . . This understanding covers what is in my mind at the moment, but something may have been overlooked. Should a situation that is not covered arise, your pleasant co-operation is expected, because, although I appreciate your suggestions, I must operate the business in a manner that seems best to me."
The plaintiff testified in part: that he sold sweetened condensed milk for the defendant, and that the sum sued for represented the difference between commissions on his sales of the sweetened condensed milk at a rate of three percent, which the defendant had *Page 496
paid him, and commissions on such sales at a rate of five percent, which he claimed under the terms of his contract with the defendant; that he did not sell any sweetened condensed milk when he began working for the defendant, but sold powdered milk; that as the war progressed the powdered milk became harder to get and the bakeries could not get it and were satisfied with anything they could get; that the defendant was handling sweetened condensed milk at a plant in Atlanta, and the plaintiff asked the defendant several times to allow him to sell some of it, but the defendant refused; that early in May, 1943, the defendant said that he had a surplus of the sweetened condensed milk, and that if the plaintiff wanted to sell it, it was all right, but the defendant would not pay but three percent commissions on it because it did not carry the full margin of profit; that he told the defendant that if it did not carry the full margin of profit, the contract would take care of it; that when he learned that the defendant's profit was nearly thirteen percent, he asked the defendant several times why he was not paid a five percent commission on his sales, and each time the defendant told him that he knew they had an agreement and for him to forget about it; that he continued to protest against the three percent commissions several times during 1943 and 1944, and had never agreed to reduce them, nor did he have any contract with the defendant different from the one sued on; that he was paid up until the time he left the defendant's employment on March 14 or 15, 1944.
The defendant testified in part: that he entered into the contract sued on with the plaintiff; that one of the staple items sold by him was powdered milk, and that was the only kind sold by him at the time the contract was made; that when the powdered milk supply gave out, he and his associates found a supply of sweetened condensed milk, and he went to the desk of the plaintiff, and in the presence of Mr. Behm and Mrs. Leach told the plaintiff that he could sell the sweetened condensed milk, and the defendant would give him a commission of three percent on such sales; that the sweetened condensed milk was to take the place of the powdered milk, which they were unable to obtain; and that "What I make does not enter into the transaction; if you are willing to handle it on the three percent basis, I will let you . . and if not, we will just forget about it;" and that the defendant replied, *Page 497
"Well, three percent is satisfactory;" that the plaintiff later told him of some sales he was making of the condensed milk, and asked if he could be allowed a larger commission, and he told the plaintiff that he would cancel the contract if the plaintiff was dissatisfied, and the plaintiff told him that as long as he was paid commissions on sales outside of Atlanta, the agreement was entirely satisfactory with him; and that he heard nothing more about the plaintiff being dissatisfied until after the plaintiff had left his employment when he received a letter from a lawyer that he owed the plaintiff some commissions.
R. A. Behm testified in part for the defendant: that he was present when the conversation took place between the plaintiff and the defendant about selling sweetened condensed milk; that he heard the defendant tell the plaintiff that he would give him a commission of three percent on sales of the condensed milk, and did not hear any objection from the plaintiff to this statement.
Ann Leach, testified in part for the defendant: that she was present and heard the conversation between the plaintiff and the defendant, and that the defendant told the plaintiff "Now, Mr. Evans, I am willing to allow you three percent on this condensed milk. You can go ahead and make the sale. It is all right with Mr. Wood. Now the margin of profit doesn't enter into it; regardless of what I make on it, your commission will be three percent. Mr. Evans, is that perfectly agreeable with you?" and that the plaintiff replied, "It is, Mr. Henson."
There was other evidence, both oral and documentary, but we think that the above is sufficient for a clear understanding of the questions here involved.
1. The contention of the plaintiff in error, that the pleadings and the evidence demanded a finding in his favor, and that the judge therefore erred in overruling the general grounds of the motion for a new trial, is without merit. The plaintiff contends that, since the defendant admitted the execution of the written contract and it was undisputed that the plaintiff had sold the amount of sweetened condensed milk alleged in the petition, a finding in his favor was demanded, where it also appeared that he had received a *Page 498
commission of only three percent on these sales, while the contract provided for a commission of five percent, and since it appeared that the condensed milk carried a profit of nearly thirteen percent to the defendant. While a written contract can not be changed or modified by parol evidence of what was said or done at the time it was made, it is competent for the parties to modify its terms by a subsequent parol agreement, and thus make a new contract. Elyea-Austell Co. v. Jackson Garage, 13 Ga. App. 182
(79 S.E. 38). Also see McGregor v. BensingerSelf-Adding Register Co., 86 Ga. 439 (12 S.E. 683); MoonMotor Car Co. v. Savannah Motor Car Co., 41 Ga. App. 231
(152 S.E. 611); American National Insurance Co. v. Lynch,49 Ga. App. 580 (176 S.E. 546). Although there were no pleadings of the defendant setting up a change or modification of the written contract, yet evidence was introduced by him, without objection from the plaintiff, that subsequently to entering into the written contract, he and the plaintiff had a parol agreement with respect to the sale of sweetened condensed milk whereby the plaintiff was to sell the condensed milk at a commission of only three percent without regard to the profit it carried to the defendant, and that the milk was sold under the terms of this subsequent parol agreement. "It has often been held by this court, that if proof goes to the jury without objection, which would show a right in the party offering it, the jury may consider it, although there are no allegations in the pleadings setting up the facts thus proved. This is put upon the ground that if objection be made that the pleadings do not authorize the testimony, the party tendering it might amend so as to make it admissible." Artope v. Goodall, 53 Ga. 318, 324. Also seeHaiman v. Moses, 39 Ga. 708; Howard v. Barrett,52 Ga. 15 (2); Parsons v. Wilson, 22 Ga. App. 279
(95 S.E. 1009); Metropolitan Life Insurance Co. v. Hale, 47 Ga. App. 674
(171 S.E. 306). Moreover, both the plaintiff and the defendant introduced evidence from which the jury was authorized to find that the sale of sweetened condensed milk was not in contemplation of the parties at the time the contract was made, but that the sweetened condensed milk was sold under a subsequent parol agreement, made when it became impossible to obtain powdered milk. The plaintiff testified that it was several months after the written contract before he was allowed to sell sweetened condensed *Page 499
milk, and that he was given this right by a parol agreement with the defendant. When the plaintiff and the defendant differed as to the terms of this parol agreement and introduced evidence in support of their contentions, it was for the jury to determine the truth of the matter. Cothran v. Brower, 75 Ga. 494,500. The evidence, although conflicting, is sufficient to support the verdict, and this court cannot say as a matter of law that the trial judge abused his discretion in overruling the general grounds of the motion for a new trial. Williams v. Pilcher,31 Ga. App. 591 (121 S.E. 581).
2. In special grounds 1, 2, 3, 5, and 7 of the amended motion for a new trial, the plaintiff in error contends that the court erred in instructing the jury that he contended there had been a modification of the written contract, whereby he was allowed to sell an additional item of merchandise not set out in the written contract, upon the grounds that he had not contended on the trial that there had been a modification of the written contract, and that the instructions were not authorized under the pleadings and the evidence in the case.
While the plaintiff's pleadings do not set out a modification of the written contract, on the trial the plaintiff testified that at first he sold powdered milk and that: "In the bakery supply business, as war conditions became more difficult, milk became harder to get. Powdered milk was difficult to get and it got so we couldn't get it and the bakeries couldn't get it, and they were being satisfied with anything they could get. Mr. Henson was handling this sweetened condensed milk at the plant in Atlanta. . . Several times I asked him to let me sell some of it. He said `No, we don't get enough to take care of the dairy trade.'. . But one day, early in May I think it was . . in 1943, he came to me and said, `We got a little surplus of this sweetened condensed milk, and if you want to go out and see what you can do with it, all right.'. . So I started out. . . To a certain extent, this condensed milk took the place of powdered milk." Under this, as well as other evidence in the case, it appears that it was several months after the execution of the written contract before the plaintiff was given permission to sell sweetened condensed milk, that this permission was verbal, and that, to an extent, the sweetened condensed milk took the place of the powdered milk *Page 500
which the plaintiff had been selling under the provisions of the written contract. Moreover, under the terms of that contract, the territory of the plaintiff was specified as "all the State of Georgia, and as much of Alabama as practical, and . . some parts of Florida;" and the evidence showed that the condensed milk was shipped to cities in Pennsylvania, Virginia, North Carolina, Texas, and Louisiana, as well as to cities in Georgia and Florida. A change or alteration, which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter of a contract intact, is a modification of the contract. See 40 C. J. 1486. In the present case, the addition of sweetened condensed milk to the other items which the plaintiff was allowed to sell under the provisions of the written contract, for which the plaintiff was to receive a commission of only three percent, and the addition of other territory to that specified in the written contract, in which the plaintiff was allowed to sell goods and receive commissions on his sales therein, was a modification of the written contract. The fact that the modification was not set out in the pleadings was immaterial, where the modification was set out or claimed by the plaintiff in his evidence. The general rule is that a charge on legal principles must be adjusted to both the pleadings and the evidence. This rule, however, is qualified when evidence has been introduced without objection relating to the same cause of action, which evidence could have been authorized by an amendment to the pleadings. Under such circumstances, in civil cases, the judge is authorized, but not required, to charge upon the issue thus made by the evidence. Jones v. Hogans, 197 Ga. 404,412 (29 S.E.2d 568), and cit. Since the contention was made by the plaintiff in his evidence, the judge was authorized to charge on the contention thus made, and the court did not err in overruling special grounds 1, 2, 3, 5, and 7 of the amended motion for a new trial.
3. Special grounds 4, 6, 8, and 9 of the amended motion — which assign error on instructions by the court that, if the jury found that the contract made by the parties on September 27, 1941, had been modified to provide for a commission of three percent to the plaintiff on sales of sweetened condensed milk, the jury should find for the defendant — are without merit. The plaintiff contends that these charges were error, on the grounds *Page 501
that they were not authorized by the pleadings of the defendant, and that it did not appear from the pleadings and evidence that the defendant was entitled to a modification of the contract; and upon the further grounds that the charges were not sound statements of principles of law, and were not applicable to the issues involved in the case. Since the issue, as to whether or not the contract entered into between the parties on September 27, 1941, had been modified or changed by a subsequent parol agreement, was made by evidence introduced by both the plaintiff and the defendant, without objection from either party, the court did not err in giving the instructions complained of, although the subsequent modification was not pleaded by the defendant.Jones v. Hogans, supra. These instructions were adjusted to the issues raised by the evidence, were sound as statements of law, and were not error for any reason assigned.
The cases cited and relied on by the plaintiff in error are distinguishable on their facts from the present case. In Davis
v. Morgan, 117 Ga. 504 (43 S.E. 732, 61 L.R.A. 148, 97 Am. St. R. 171), the court, after holding the subsequent agreement in that case void, because, under the facts of that case, there was no consideration to support it, said: "If there had been any change in the hours, services, or character of work, or other consideration to support the promise to pay the increased wages, it would have been enforceable." In the present case, there was a change in the services, as sweetened condensed milk was added to the items sold by the plaintiff, and there was a change in the territory in which the plaintiff was entitled to receive commissions on his sales of condensed milk, and the commissions sued for arose largely by reason of sales of the condensed milk in this enlarged territory. In Supreme Lodge Knights of Pythias
v. Crenshaw, 129 Ga. 195 (58 S.E. 628, 13 L.R.A. (N.S.) 258, 121 Am. St. R. 216, 12 Ann. Cas. 307), the case was on appeal from a judgment sustaining demurrers to the defendant's special pleas and answer, while in the present case the evidence of the subsequent parol modification of the written contract was introduced in evidence without objection from the plaintiff. InFruit Dispatch Co. v. Roughton-Halliburton Co., 9 Ga. App. 108
(70 S.E. 356), and Wofford Oil Co. of Georgia v.Solomon, 47 Ga. App. 42 (169 S.E. 780), the court, in instructing the jury, misstated contentions *Page 502
of the losing party, while in the present case the court merely instructed the jury on issues raised by the evidence, but not set out in the pleadings of either party. We do not construe the certificate of the trial judge approving the amendment to the motion for a new trial as certifying that he instructed the jury on contentions not made by the plaintiff, but construe the certificate to mean that he gave the instructions complained of in the amended motion, and that it was the contention of the plaintiff in error did the amendment to the motion that he had not contended on the trial that there had been a subsequent modification of the written contract. As disclosed by the record, the plaintiff in error did contend in his evidence before the jury that there had been a subsequent modification of the written contract, and as set out in this opinion, the court did not err in so instructing the jury, even though such contention was not raised by the pleadings in the case.
The evidence authorized the verdict, no error of law appears, and the judge did not err in overruling the motion for a new trial as amended.
Judgment affirmed. Felton and Parker, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3403732/ | 1. Under the provisions of the Code, § 26-1602, there are two cases, one where the child who is kidnapped has a parent or guardian, the other where the child has neither. In the first class of cases mentioned, the crime is against the rights of the parent or guardian, while the other class of cases is against the child. In the first class, the consent of the child is generally immaterial. In the other class, the State must prove that the kidnapped child was forcibly, maliciously or fraudulently led, taken or carried away or decoyed or enticed away, against the will of the child and without the consent of the child.
2. The assignments of error in the special grounds require no reversal for the reasons given in the opinion.
DECIDED NOVEMBER 6, 1948.
The defendant was convicted on an indictment based on the Code, § 26-1602. Omitting the formal parts, the indictment alleged that the defendant did "forcibly, maliciously, feloniously and fraudulently lead, and carry away, decoy and entice away one Sarah Jewell Defoor, she being a child under 18 years of age, from her parent, Jim Defoor, against his will and without his consent." The defendant filed his amended motion for a new trial, which the court overruled. It is on this judgment that error is assigned. *Page 852
Briefly, the evidence shows that the defendant, a married man having a wife and two children, picked Sarah Jewell Defoor up at a schoolhouse where she was attending school. She was 13 years of age and small of stature. At the time the defendant took the child into his car at the schoolhouse there was with him his wife and his sister-in-law, both the ladies being a sister of the child. They rode from the schoolhouse to the home of a relative of the family. The child was left there. The defendant returned to his home. The child often visited her sister, the wife of the defendant. The child was living with her father and attending school. Her mother was dead. The father had married again. When the child did not return home from school, the father became alarmed and began a search for the child. The defendant and the child were missing for approximately a week. An alarm was given throughout the community as to the child's disappearance. Radio announcements of her disappearance were given. Georgia Bureau of Investigation agents' services were procured. Newspaper articles carrying an account of the affair were published. When the defendant returned after about a week, he was arrested at Jake Lawson's home in Stephens County. The child had been located at the same home just prior to the defendant's arrest. After the defendant was arrested he made a statement to the officers and members of the G.B.I. to the effect that he picked the girl up and that he spent one night with her in the car in the road, and spent one night with her in a house. Upon inquiry from the officers concerning the publicity given to the absence of the defendant and the child, he stated that he went through Hart County, Georgia, and into Anderson, South Carolina. The officers traced his car into South Carolina, but were unable to find out who, if anyone, was with him. The officers got the impression that the defendant stated that he first returned the child to Jake Lawson's and then went into South Carolina. The sheriff testified that the defendant was about 25 years old and the child seemed to be "of very tender age."
The father of the child testified that the child left without his consent and against his will.
The State introduced other testimony which we do not think it material here to relate. *Page 853
The defendant made the following statement: "You have heard the witnesses make their statements; they have told you the fact. I have not carried the child off. I did not encourage her to go. That is all I have to say."
The offense was alleged to have been committed on January 17, 1946. The defendant was tried on May 15, 1947. During the meantime the child had married an uncle of the defendant. The State did not put up the child. The defendant did, and he introduced her sister also. The child testified that her father did not want her to stay at home. However, she also testified that she was not with the defendant; that she went no place with him alone.
1. Under the Code section upon which this indictment is based provision is made for two cases, one where a child has a parent or guardian, and the other where the child has neither. In the latter case the child must be forcibly, maliciously or fraudulently led, taken or carried or enticed away against its own will and without its consent; in the former if these things shall be done against the will and without the consent of the parent or guardian, irrespective of that of the child, this alone will complete the offense. See Gravett v.State, 74 Ga. 191; Bryant v. State, 21 Ga. App. 668
(94 S.E. 856). The present case falls in a class of the first cases because the child had a parent. The crime as alleged and as made out by the evidence is against the right of the parent. On this point counsel for the defendant cite the case of Hendon v.State, 10 Ga. App. 78, 82 (72 S.E. 522). A careful reading of the Hendon case will disclose that it is not in conflict with the Supreme Court decision in the Gravett case, nor with the Bryant case, supra. In the instant case the State was able to make out the charge of the invasion of the parental right over the child without any reference to the testimony of the child or any other evidence produced by the defendant. Indeed, there is practically no unimpeached testimony of the defendant which would demand the jury to find that the father in any wise gave his consent for the child to leave with the defendant. So far as the general grounds are concerned, the evidence sustains the verdict. *Page 854
2. Special ground 1 assigns error as follows: "Because the court erred in admitting, over the objection of movant, the following testimony of the witness Jim Defoor: `I never saw the defendant but the one time, that night he came to my house, is the only time I saw him. After I moved to Habersham County, the defendant, Garvin LeCroy, came to my house on a Saturday night; he came there in a car four times. It was about the first Saturday night or Sunday of April, 1947. My daughter, Sarah Jewell Defoor was at my home at that time. This fellow drove up in my yard, and me and my boy went out; it was between eight and nine o'clock, and we went out there and asked him who he was, and he said it was Loyd Lawson, married your daughter, and it was not him; it was another fellow; George Franklin was the one that brought him there, and he is a married man, he told me. The way he commenced, I asked him who he was, and he said it was Loyd Lawson, married your daughter, and I said, get out and come in, just that way, and I said, who is that fellow you have with you? and he wouldn't tell me; he said, this is Garvin LeCroy, still I didn't believe that was that fellow that married my girl. It was not him. I said, you all leave without any trouble. They wanted to know if Sarah Jewell was there, and I told them that she was, and they wanted her to go with them and she told them she was not going with them, and I told them to leave without any trouble. I didn't want any trouble. Garvin LeCroy begged me to come over on the side of the car where he was, and I wouldn't do it. I just said, you all leave, and went back in the house, and they seed I was not coming, and both of them jumped out of the car. Garvin LeCroy tried to get Sarah Jewell to leave with him, and she refused; she told him she was going to stay with me all the time. I do not know if Garvin LeCroy had her out any other times between January 17, 1946, and the time she was taken away, and the time I moved to Habersham County, without my consent; I didn't see them any more after I left down here on Christmas Eve day; I didn't see him any more until that night.' Movant then and there objected to the admission of said testimony on the ground that it was evidence of a separate, distinct and independent crime, namely, an assault and battery or an assault with intent to murder more than one year after the alleged kidnapping *Page 855
occurred; and that it was prejudicial and injurious to the defendant and did not illustrate any issue that was before the jury on the charge made in the indictment. The witness says he moved into Habersham County last `Christmas Eve' which was Christmas Eve, 1946, and he says this occurrence took place at his home in April, 1947, some fifteen months after the alleged kidnapping. Movant insists that it was grave and harmful error to admit this testimony and was highly prejudicial to movant's case."
We have set out this ground in full for the reason that we can not see how it could have been prejudicial to the defendant. It was alleged to have been over a year after the occurrence upon which the defendant was tried before the indictment was drawn. While this was alleged to be an assault and battery or an assault with intent to murder on the part of the defendant, we do not think the evidence objected to is sufficient to make out such a crime. Moreover, the evidence for the defendant refers to the same transaction without any objection. When the child was on the stand testifying on behalf of the defendant, she testified that she married Loyd Lawson, an uncle of the defendant, and that she last saw her husband when he came to her father's house in Habersham County. The defendant was with him. They went to her father's house. Her husband went for her, but her father wouldn't let her go. "I wouldn't get with my husband because my father held me." The father held her when the defendant and her husband came up there to carry her away. She testified that that was the last time she saw her husband. She further testified that since her father moved to Habersham County she had not seen the defendant except on the occasion in question when he went to her father's house with her husband. Under all the facts of this case we do not think that the errors assigned in this special ground require a reversal of the case.
3. Special ground 2 assigns error on the refusal of the court to give a written request as follows: "Request to charge: I charge you that even though the child alleged to have been kidnapped appears to be under the age of 18 years, yet if it appears that she has reached the age of discretion, then you would have a right to consider whether or not she consented to accompany the defendant, and if she did so under these circumstances, the *Page 856
defendant could not be guilty of the offense of kidnapping." When we view the charge of the court as a whole, under the evidence in this case, and particularly the following excerpt from the charge, we do not think the case should be reversed for any alleged errors assigned in this ground, when we read the request to charge in comparison with what the court did charge on this subject. The court charged: "Now, I charge you, gentlemen of the jury, that the consent of the child herself is immaterial, if you find that that child has not reached the age of discretion, and if you further find that she was carried away, enticed, decoyed away, without the consent of the parent, it would be immaterial whether she consented to be so carried away." It is true that the wording is somewhat different, but the effect is the same. We find no reversible error in this ground.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur. | 01-03-2023 | 07-05-2016 |
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