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https://www.courtlistener.com/api/rest/v3/opinions/3403752/ | The superior court did not err in affirming the award of the State Board of Workmen's Compensation for any of the reasons assigned.
DECIDED JULY 16, 1947.
1. On July 12, 1945, the claimant filed an application for compensation with the State Board of Workmen's Compensation for an injury caused by an accident arising out of and in the course of her employment. Many hearings were held on this application. The first one was on July 27, 1945, and the last on December 3, 1946.
The record in this case is unusually voluminous, containing over 260 pages. The evidence taken at the hearings consumes the larger portion of the record. The briefs of counsel are lengthy and in much detail relative to the respective contentions, as well as the law applicable thereto. We have studied the record and the briefs exhaustively and to the best of our ability. We see no good purpose that would be served by going into a detailed discussion of the evidence. The hearing director made the following award: *Page 463
"Findings of Fact. From a preponderance of all the evidence adduced at the hearings in this case, I find as a matter of fact that the claimant sustained an accidental injury July 15, 1944, which arose out of and in the course of her employment and which resulted in a superficial burn of claimant's chest. I further find as a matter of fact that the disability from which claimant suffered as a result of said accident completely cleared up within a period of seven days. I further find as a matter of fact that the condition from which claimant is suffering at the present time is not related in any way or manner, directly or indirectly, to the accident sustained by claimant July 15, 1944. There is ample evidence in the record to support a finding of fact that claimant was suffering chronic colitis on July 15, 1944, and for some time prior thereto. Claimant contends that as a result of said accident she suffers nervousness, constipation, and headaches. According to claimant's own admission, she was suffering from frequent headaches and constipation on December 3, 1943. On June 9, 1944, Dr. James Murray certified to claimant's employer that claimant was nervous and the work she was doing at that time, namely, riveting, was too trying on her nerves, and recommended a change of work for claimant. The burden rested with claimant to establish by competent evidence that the disability from which she is now suffering is the result of the accident sustained by her July 15, 1944, or at least that said accident aggravated her pre-existing condition. This burden claimant has failed to carry. On the other hand, the preponderance of the testimony definitely establishes the fact that the ailments now complained of by claimant existed prior to July 15, 1944, and were in no way attributable to said accident.
"Award. Wherefore, based upon the above and foregoing findings of fact, it is the award of the undersigned director that claimant's claim for compensation be and the same is hereby denied. This the 29th day of July, 1946."
This award was appealed to the full board, for review. Notice was given to the parties of the assignment for a hearing before the full board. At the date set for hearing the claimant petitioned the full board to take additional testimony of Dr. Smith. The full board granted this request, and at the time named for taking the testimony of Dr. Smith, the employer asked leave to submit *Page 464
additional testimony of Dr. Hutchins. Both requests were granted by the director. The additional testimony was taken and the record referred back to the full board. After notice of hearing to the parties, the full board passed the following order: "The above stated case came on for hearing before the full board November 25, 1946, upon application of claimant objecting to the award of Director Pat J. Riordan, dated July 29, 1946. After an exhaustive and painstaking review of the entire record in this case, the board is of the unanimous opinion that the award of Director Riordan, dated July 29, 1946, should be affirmed in its entirety, ample evidence being in the record to sustain the findings of fact contained in said award. "Award. Wherefore, it is the award of the full board that said award of Director Pat J. Riordan . . be and the same is hereby affirmed." The claimant thereafter duly appealed the case to the superior court. The judge of that court affirmed the award, stating that in his judgment the record contained abundant evidence which would have authorized an award in favor of the claimant, but that there was ample evidence in the record to sustain the award against her. It is on this judgment that error is assigned here. After considering the whole record, we are convinced that there is sufficient competent evidence to sustain the award of the hearing director and of the full board. This being so, this court is without authority to disturb the findings. Where there is any competent evidence to support an award, in the absence of fraud the superior court and this court are without authority to set it aside. The decisions to this effect are numerous. We will not cite them in detail, but one interested may examine the citations under the Code, § 114-710, and the supplement thereto, under the catchwords "Conclusiveness of finding" and "Evidence," and also under § 114-708, and the supplement thereto, under the catchwords "Conclusiveness of findings." It then necessarily follows that, insofar as the evidence goes, the superior court did not err in affirming the award for any of the reasons assigned.
2. (a) Counsel for the claimant earnestly insist that the judgment of the superior court should be reversed, under the record, for the reasons that, when a compensation case is appealed from the award of a single director to the full board, it is a de novo proceeding; that the full board did not so try the case, since there *Page 465
was additional evidence of Dr. Smith taken after the case was referred to the full board; and that the full board in its final hearing did not consider this additional testimony. It is true that, when an appeal is made to the full board from an award of a single director, it is a de novo proceeding. Burel v. LibertyMutual Ins. Co., 56 Ga. App. 716 (3) (193 S.E. 791). The last portion of Code, § 114-708, dealing with this question states: "All of the directors may remand to a single director any case before them for review for the purpose of taking additional evidence; said evidence shall be delivered to all of the directors and it shall be taken into account before rendering any decision or award in such case." The full board is not obliged to take additional testimony. Whether it does or does not, the case is opened and the board becomes a fact-finding body. American Mutual Liability Ins. Co. v. Jenkins, 63 Ga. App. 777
(12 S.E.2d 80). And on review of an award of a single director, and acting as a fact-finding body, either from the evidence taken by the single director and submitted to them, or where additional evidence is taken by the order of the full board, they may reverse the award of the director though there may be some evidence to support his findings. Austin v.General Accident c. Assurance Corp., 56 Ga. App. 481
(193 S.E. 86); Merry Bros. Brick Tile Co. v. Holmes, 57 Ga. App. 281
(1) (195 S.E. 223); American Mutual Liability InsuranceCo. v. Bond, 62 Ga. App. 562 (1) (8 S.E.2d 715). It has been the general practice that where the full board approves the award of the single director, it does so without making any specific or new finding of fact different from that set out in the award of the single director. It will be noted that the section of the Code above quoted requires the full board, on review of a case, to take into account any additional testimony. There is nothing in this record to show that they did not do so, even though they did not specifically say so in an additional finding of fact. The full board did say this: "After an exhaustive and painstaking review of the entire record in this case, the board is of the unanimous opinion that the award of Director Pat J. Riordan, dated July 29, 1946, should be affirmed in its entirety, ample evidence being in the record to sustain the finding of fact contained in said award." It is evident, therefore, that the full board did take into "account" the additional testimony taken. *Page 466
(b) It is further contended earnestly that the board erred in approving the award of the single director, which was rendered on July 29, 1946, after the additional evidence had been taken. It is contended that the full board should have made another and distinct finding of fact as of the date of its final award on November 25, 1946, since additional testimony had been taken in the meantime. The award before the board for review was the award of July 29, 1946, and the taking of additional testimony in no way necessarily altered it, if the full board in passing upon the credibility of the witnesses, and the force of the documentary evidence contained in the record, did not see fit to change the award of the single director. As stated above, it was a de novo proceeding and the board, as a fact-finding body, from the record of the evidence contained therein, could have changed the award of the single director, as we have hereinbefore observed, even though there was some evidence to support the award of the single director. But the full board was within its authority in sustaining the award of the single director, provided, of course, that the evidence did not demand a contrary finding. Of course, the superior court and this court have no such authority to deal with facts, where there is any competent evidence to support the final award. The evidence in this case does not demand a finding for the claimant. The superior court did not err in affirming the award of the State Board of Workmen's Compensation for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3403750/ | The evidence supported the verdict, and the court did not err in overruling the motion for new trial.
DECIDED SEPTEMBER 6, 1941.
The defendant was tried on a charge of murder and convicted of involuntary manslaughter in the commission of an unlawful act. He made a motion for a new trial, based on the usual general grounds, which the court overruled, and he excepted.
The only question for the court to decide is, does the record show sufficient evidence to support the verdict? Briefly the evidence shows as follows: The defendant, the deceased, and two other companions traveling in an automobile, arrived from Colquitt, Georgia, in the City of Americus. All had been drinking to some extent. They went into an eating place, ordered sandwiches, and up to this time they were peaceful. The defendant remarked that he did not know that he wanted a sandwich. The deceased replied: "Go ahead and eat it, you son of a bitch." The defendant retorted: "Don't say that any more." The deceased repeated the opprobrious words. The defendant, according to some of the State's witnesses, facing Jordan, struck him one severe blow with his fist *Page 741
in the face and knocked him back and onto the concrete floor. Jordan was rendered unconscious and was carried to a hospital for treatment. An examination was made of Jordan by Dr. Primrose, on his arrival at the hospital. This occurred about eight o'clock in the evening. The next morning Jordan was removed from the hospital by his family and the family physician, Dr. Smith. The injuries caused the subsequent death of Jordan. Both doctors testified that there were three wounds on him, two on the scalp, and one, a laceration, on the face. Dr. Primrose testified in part as follows: "There was one wound in the back of the head about level with the top of his ear on the left side. The scalp was lacerated down to the bone, exposing the skull, and a small wound about an inch or two on this side. It was the back part of the head. There is a knucklebone that protrudes on the back part of the head. The wound I found was below the knucklebone. The wound was down to the bone. If a man was knocked down on a level or substantially level concrete floor the part of the head which most probably would come in contact with the floor would be the most prominent part of the head, just about that knucklebone. The wound I have described is below that location. Any blunt instrument could have caused the wound on the left back of the head. If a man was knocked down and hit on a concrete floor, and assuming he fell on his back, I do not see how a man could have very probably received a wound like he received so low down. After examining the wounds, the wound on the back of the head and the wound on the side level with the ear, it was my conclusion at the time that he was struck in the back of the head with some heavy blunt instrument, with force necessarily. It could have been anything made of metal or a very heavy bottle or something like that. A pistol butt, brass knucks, or any piece of iron. The right side of Mr. Jordan's face was swollen and scratched up considerably, and the right eye was closed from swelling. From the appearance of the side of his face he must have come in contact with some substance that was sliding or scratching over his face. I am familiar with concrete floors. If a man fell on his face on a concrete floor I would say that he would receive such scratches as I found on Mr. Jordan's face. I could not give you offhand any other reason or way that those scratches could have occurred. When I examined the wounds on the body of Mr. Jordan I came to the conclusion that there was *Page 742
possibly a fracture at the base of the skull with hemorrhages of the brain. He was in an unconscious condition when I saw him. The wound level with the ear on the left side in my opinion caused the fracture at the base of the skull. Mr. Jordan's condition was critical the night I examined him. In my opinion the wound would possibly be a mortal wound." Dr. Smith in substance corroborated the testimony of Dr. Primrose.
The indictment charged, and the evidence was sufficient to show, that Jordan was struck by a blunt instrument or other means used in a manner and to an extent unjustified under the law. This was peculiarly a jury question. This court is without authority to interfere with its finding. Clarke v. State, 35 Ga. 75
(3); Smith v. State, 47 Ga. App. 781 (171 S.E. 587);Prosser v. State, 60 Ga. App. 604 (4 S.E.2d 499). No one will dispute the right of the defendant to assault and beat another for such opprobrious words as Jordan used towards the defendant in the instant case. Code, § 26-1409, announces this right. It provides: "On the trial of an indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobrious words, or abusive language, used by the prosecutor, or person assaulted or beaten; and such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury." But the law also says, inferentially at least, that the battery can not be disproportionate to the opprobrious words used, and never to the extent of taking life, intentionally or unintentionally, where the battery is excessive. Any step beyond proportionate resentment carries one into the mire of unlawfulness, whether there be one or many blows, and the Code section quoted provides the means by which this question is determined, as follows: "And such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury." It will be seen that this is always a question for the jury in each case under all the facts and circumstances adduced on the trial. The jury heard all the testimony and were correctly informed as to the law applicable thereto. Even though the State's evidence may in part have been in conflict, on the whole evidence the jury determined that the blow inflicted by the defendant was disproportionate to the opprobrious words used and was therefore unlawful, *Page 743
whether inflicted with the fist or other instrument causing Jordan's death. On the question of conflict in the testimony of the State's witnesses, see Alexander v. State, 1 Ga. App. 289
(57 S.E. 996); Sessions v. State, 6 Ga. App. 336 (2) (64 S.E. 1101).
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3403790/ | This case is a companion to Cook v. Kroger Baking Grocery Co., ante, 141. The two cases were heard together, and the instant writ of error is controlled by the ruling there made. The judge did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.
DECIDED JUNE 19, 1941. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3403780/ | 1. The action being based on the use of the words "damned bitch" to and of the plaintiff in the presence of others, it being charged by innuendo that thereby the defendant meant that she was a common prostitute, thus imputing the commission of a crime, and the ruling on the defendant's demurrer having adjudicated that the words were susceptible to the meaning ascribed by the innuendo, the court erred in refusing to permit one of the hearers of the defendant's characterization of the plaintiff as a "damned bitch" to testify that the usual meaning and common understanding of the words used were that she was a common prostitute.
2. The court did not err in refusing to permit the plaintiff to testify as to her understanding of the meaning of the words used or the usual meaning and understanding thereof, such testimony by the plaintiff being of no probative value, inasmuch as the publication, which is essential to support an action for slander, must be made to one other than the person defamed.
3. The case being predicated on the use of words actionable per se, it was not necessary to allege and prove special damage, and such evidence was incompetent and inadmissible. Accordingly, the court erred in admitting in evidence, over objection of counsel for the plaintiff, her *Page 152
testimony that what the defendant called her did not cause her any loss of time or damage in her work as a housewife.
4. Because of the above rulings it is unnecessary to pass on the general grounds of the motion for new trial or the special ground of the motion assigning error on the direction of the verdict against the plaintiff.
DECIDED OCTOBER 10, 1942.
Mrs. Bettie Kaplan brought suit against G. A. Edmondson, alleging in substance that on December 12, 1940, while the defendant was at her home attempting to repossess certain household furniture which she had purchased from him, and while she was resisting his efforts to remove the goods from her home, the defendant, in the presence and hearing of his collector, one Mr. Pittman, and her two small children, said to her, "You damned old bitch, you, I'm going to take my stuff, and I will beat you with my cane before I get out of here;" meaning by the use of the word "bitch" that she was a whore and a common prostitute, guilty of the offense of fornication and adultery, a criminal offense under the laws of Georgia, and by the use of the said epithet meant that she was guilty of debasing acts which of their nature may exclude her from society, and that the said charge was false and was maliciously made by the defendant, damaging her good name and reputation, and judgment was prayed in the sum of $500. The defendant filed a demurrer, general and special, which was overruled by the court, and no exception was taken. He also filed an answer denying the substantial allegations of the petition.
Upon the trial of the case the evidence showed that, as alleged in the petition, the defendant and his collector went to the home of the plaintiff, and the defendant was in the act of removing therefrom certain furniture which she had purchased from him under a written contract, and that upon her being called into the house by her young daughter and while actively resisting the attempted repossession by the defendant he, according to her testimony, in the presence of his collector, Pittman, and her eight- year-old daughter, said to her in a loud voice, "You damned bitch. I'll hit you with my cane." She further testified that she did not know the meaning of the word "bitch;" that she did not *Page 153
work for a living; that her business was that of a housewife, doing cooking, dishwashing and common house work while living with her husband; and that what the defendant called her did not cause any loss or damage in her work. D. A. Pittman, the defendant's collector at the time of the occurrence, testified that he was present when the defendant sought to remove the furniture, and that the defendant drew back his walking cane and said to the plaintiff, "You damned old bitch. I'll knock your brains out," and that the witness did not know "the definition of the word `bitch.'" On cross-examination he testified that the defendant "did not say anything about her character." Phil Kaplan, husband of the plaintiff, testified that he knew "the definition of the word `bitch' as applied to a woman. It means just a common whore."
The defendant offered no evidence, and after some argument by counsel the court directed a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds, and on several special grounds, and the exception is to the judgment overruling the motion.
One ground of the motion for new trial complains that the court erred in refusing to allow one of the hearers of the defendant's characterization of the plaintiff as a "damned bitch" to testify as to "the usual meaning and understanding of the expression as applied to a woman," the plaintiff's counsel having insisted to the court that if the witness were permitted to answer he would testify that it "means such a woman is a common whore." The petition alleged that in the circumstances detailed the defendant called the plaintiff a "damned bitch" and by innuendo charged that thereby he meant that she was a whore and a common prostitute, guilty of the offense of fornication and adultery, a criminal offense under the laws of Georgia, and by the use of the said epithet meant that she was guilty of debasing acts which of their nature may exclude her from society. The Code, § 105-702, provides: "Slander, or oral defamation, consists, first, in imputing to another a crime punishable bylaw; or, second, charging him with having some contagious disorder, or being guilty of some debasing act which may excludehim from society; or, third, in charges made against another in reference to his trade, office, or profession, calculated to injure him therein; *Page 154
or, fourth, any disparaging words productive of special damage flowing naturally therefrom. In the last case, the special damage is essential to support the action; in the first three, damage is inferred." (Italics ours.) The plaintiff contends that the present action is maintainable under either of the two provisions italicized above, and by the ruling on the defendant's general demurrer, which was not excepted to, it has been adjudicated that a cause of action was set forth in the petition, it being contended that if the plaintiff proved that the defendant, in the circumstances related, spoke of and concerning the plaintiff the alleged defamatory words, and the jury should believe that they were used by the defendant with the meaning ascribed to them by the innuendo, the jury would be authorized to return a verdict for the plaintiff for general damages, no special damage having been alleged and there being no necessity for such allegation and proof where words imputing a crime, being slanderous per se, are used.
In presenting to the jury's consideration the meaning in which it was alleged the words "damned bitch" were used, the plaintiff had the right to show by any bystander who heard the defamatory words whether or not they were understood in the sense ascribed to them by the innuendo. The record shows that one Pittman, who was present and heard the defendant use such language to and of the plaintiff, testified that he "did not know the definition of the word `bitch,'" and on cross-examination he testified that the defendant "did not say anything about her character." It appears from the ground of the motion under consideration, certified by the trial judge as being true in its recitals, that the effort to show by the witness "the usual meaning and understanding of the expression `damned bitch'" was made after the witness had testified as to the use of the defamatory words to the plaintiff, and that the court limited the witness, in respect to answering counsel's question as propounded, to testifying as to "the definition of the word `bitch'." The gist of the action of slander is the unfavorable impression created in the mind of a third party by an alleged tort-feasor in using defamatory words of and concerning another in the hearing of such third party. Where a word is reasonably susceptible of two meanings, one of which is innocent and the other defamatory, the plaintiff may *Page 155
allege by innuendo the meaning in which it was used, and it is for the jury to say whether or not the word as used was slanderous.
As was said in Park v. Piedmont Arlington Life InsuranceCo., 51 Ga. 510: "If the plain, unambiguous words contained in the publication do not impute a criminal offense, the meaning thereof can not be enlarged or extended by an innuendo for that purpose; but when the language used is capable of being understood in a double sense, the one criminal and the other innocent, the plaintiff, by making the proper allegations in his declaration, may, by an innuendo, aver the meaning with which he thinks it was published, and the jury may find whether the publication was made with that meaning or not." In Williams v.Equitable Credit Co., 33 Ga. App. 441 (126 S.E. 855), it was said: "Words that do not in themselves unequivocally convey a charge which may become libelous when falsely and maliciously published may nevertheless convey such a charge when the words are capable of being so understood and are so understood by the person [the third party] to whom they are uttered. Words apparently innocent may convey such a charge when they are considered in connection with the innuendo and the circumstances surrounding their publication." In Odgers on Libel and Slander (5th ed.) 116 it is stated: "If the words are incapable of the meaning ascribed to them by the innuendo and are prima facie not actionable, the trial judge will stop the case. If, however, the words are capable of the meaning ascribed to them, however improbable it may appear that such was the meaning conveyed, it must be left to the jury to say whether or not they were in fact so understood."
The court determined that the words alleged to have been used by the defendant were susceptible to the meaning ascribed by the innuendo. That ruling on the demurrer became the law of the case. It remained for the jury to determine from any evidence introduced upon the trial whether or not the words ascribed by the innuendo as charging the plaintiff with a crime were in fact so understood by any one who heard them. We think that under the authorities above quoted the plaintiff had the right to show by the witness Pittman, not merely the "definition" of the words "damned bitch." as ruled by the judge, but what he knew to be the usual meaning and understanding of the expression, *Page 156
and that the judge erred in not permitting the witness to so testify. Nor was the error rendered harmless by the fact that the witness testified that he did not know the "definition" of the words. A person may not know the definition of a word and yet may know its meaning as employed in common use. For example, he might state that he does not know the definition of the word "speedometer" and still testify that he knows from common use and understanding that it designates an instrument which is employed for measuring the speed and distance traveled by an automobile. Accordingly, we hold that the proffered testimony should have been admitted, and that it should have been left to the jury to determine, with his other testimony in evidence, that is, that the defendant "did not say anything about her character," whether or not the defendant used the words with the meaning ascribed to them by the innuendo and whether or not they were so understood by the witness.
Another ground of the motion for new trial complains that the court erred in admitting in evidence testimony of the plaintiff on cross-examination, over objection of counsel for the plaintiff, that what the defendant called her did not cause her any loss of time or damage in her work as a housewife. The case being predicated on the use of words actionable per se, it was not necessary to allege or prove special damage if such words were used with the meaning ascribed by the innuendo, and such evidence was incompetent and inadmissible. Atlanta Post Co. v.McHenry, 26 Ga. App. 341 (4) (106 S.E. 324).
One ground of the motion for new trial complains that the court erred in refusing to allow the plaintiff to testify that she understood the meaning of the words "damned bitch" to be a common prostitute, and another ground complains that the court erred in not permitting the plaintiff to testify that the usual meaning and understanding of the words as applied to a woman are that she is a common prostitute. In order to support an action for slander it is absolutely essential that the alleged defamatory words be published, that is, used in the hearing of some person other than the one defamed. Consequently, the testimony of the plaintiff as to her understanding of the meaning of the words used and as to the usual meaning and understanding of the words *Page 157
would be without probative value, and the court did not err in rejecting such testimony.
In view of the above rulings it is unnecessary to pass upon the general grounds of the motion for new trial or the special ground of the motion assigning error on the direction of the verdict against the plaintiff.
Judgment reversed. Felton, J., concurs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3403789/ | 1. Any authorized arresting officer may seize for condemnation a vehicle used illegally in transporting prohibited liquors and beverages, and an automobile so seized by State patrolmen, and turned over to the sheriff of the county in which it was seized, who reports the same to the solicitor as provided by the statute, is subject to condemnation.
2. The State may condemn the equity, if any, held by the operator and person in possession of an automobile, where it is used in the illegal transportation of prohibited liquors and beverages, although the legal title thereto is held by another under a retention-of-title contract securing an indebtedness against it. The law requires only that the holder of any bona fide lien, where the illegal use of the vehicle was without his knowledge or consent, shall be protected to the full extent of his lien.
DECIDED FEBRUARY 26, 1947. REHEARING DENIED APRIL 1, 1947.
The Solicitor of the City Court of Thomasville brought a proceeding in that court in behalf of the State of Georgia for the condemnation of an automobile, alleged to have been used in the illegal transporting of liquors and beverages, under the provisions of the Code, § 58-207, as amended by the act approved February 1, 1946 (Ga. L. 1946, p. 96). Consolidated Loan Company, a partnership, filed an intervention setting up that Sam Thompson, the alleged owner and person in possession of the automobile at the time it was seized, was not the owner thereof, but that the intervenor was the legal owner and holder of the title to the said automobile, as shown by a retention-of-title contract attached to and made a part of the intervention, and the prayer was that condemnation be denied. Upon the hearing before the court, sitting as judge and jury, a judgment was rendered in favor of the intervenor for the amount of the debt with the interest thereon due by Thompson on the retention-of-title contract held by it. The finding and judgment of the court was that the intervenor was *Page 78
entitled to the money due on the contract and lien held by it, but that any equity in the automobile, held by Thompson, was subject to condemnation. The intervenor excepted to that judgment in the bill of exceptions brought to this court.
1. At the close of the evidence upon the hearing, the intervenor moved for a dismissal of the petition upon the ground that the evidence showed that the sheriff of the county was not the arresting officer who seized the automobile, and error is assigned upon the overruling of that motion. The petition for condemnation alleged that an officer with authority had seized the automobile being used for transporting intoxicants, and the evidence showed that two State patrolmen, agents of the Georgia Alcohol Tax and Control Unit, were the officers who made the seizure. We think that it is immaterial whether the automobile was seized by a State patrolman, or by the sheriff or some other duly authorized arresting officer, although the notice given to the solicitor recites that the automobile was seized by the sheriff. State patrolmen work in cooperation with the sheriffs of the various counties, and they were authorized to seize the automobile and report the same to the sheriff as the arresting officer of the county in which the seizure was made. The evidence also showed that the automobile was turned over to the sheriff, who gave the solicitor the required notice before the filing of the petition for condemnation. We think that this was sufficient and that the court properly refused to dismiss the proceeding on the ground stated.
2. The next contention of the intervenor is that the legal title to the automobile was not in Sam Thompson, the operator of the automobile at the time it was seized, but was in the intervenor under the retention-title contract held by it, and for this reason the automobile could not be condemned, where the evidence showed that the intervenor had no knowledge of the illegal transportation of the liquors and beverages in the automobile. The intervenor's contention is based upon the rulings of this court in Seminole Securities Co. v. State, 35 Ga. App. 723
(134 S.E. 625), and in State of Georgia v.Industrial Acceptance Corp., 37 Ga. App. 253 (139 S.E. 577), and other cases holding that before a vehicle can be condemned the State must show that it was used in conveying the prohibited liquors or beverages with the knowledge of the owner or lessee. All of the cases relied on by the intervenor were decided *Page 79
prior to the amending act of 1946, which seems to make clear that the State can condemn an equity, if any, in an automobile held by the operator thereof who illegally transports liquors and beverage therein, although the legal title to the automobile may be held by another. The amendment to the Code, § 58-207, which was approved on February 1, 1946, provides, in paragraph (g), in part as follows: "The holder of any bona fide lien on the property so seized shall be protected to the full extent of his lien, provided such holder shows that the illegal use of the property was without his knowledge, connivance or consent, express or implied." Regardless of what the rule may have been prior to this amendment, and we do not have to decide that question, we think that it was the intention of the legislature in amending the statute to protect bona fide lien holders without destroying the right of the State to condemn. We think that this construction is legally and morally correct. The judgment of the court in this case clearly protected the holder of the legal title by providing that it be paid in full all principal and interest due on its retention-title contract, and this was all that the intervenor could ask for or was entitled to receive under the law as we have construed it. The judgment of condemnation was authorized by the evidence, the intervening party has not been hurt by the condemnation, and there was no error in the ruling of the court.
Judgment affirmed. Sutton, P. J., and Felton, J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3862799/ | To remand this case to the Public Utility Commission serves no purpose, and merely delays a proceeding which should have been terminated long ago. The order of the commission, filed December 7, 1942, which we reversed in Peoples Natural Gas Company v.Pennsylvania Public Utility Commission, 153 Pa. Super. 475,34 A.2d 375, was substantially and reasonably correct both on the facts and on the law. But the commission, in its order of February 16, 1944, clearly attempted to apply the directives — now conceded by the majority to have been erroneous in part — of this court set forth in its opinion reversing the commission's order of December 7, 1942. The commission, in making its first order, as stated in the order of February 16, 1944, avoided "the *Page 241
acceptance of original cost, prudent investment, reproduction cost, or other single element, as the rate base," but considered "every element and [gave] it proper weight in the ultimate finding of fair value." The last order of the commission was the result of the application of principles which it realized, and we now acknowledge, were incorrect.
The commission, in making its order of December 7, 1942, was of the opinion that the reproduction cost figures in the record presented by the utility were entirely unreliable and worthless. See order nisi, March 4, 1942 (3531a); final order, December 7, 1942 (3721a). Upon the case being remitted under our decision of November 10, 1943 (153 Pa. Super. 475, 34 A.2d 375), the commission thereupon accepted such estimates, which it had thus characterized, and based its order of February 16, 1944, thereon. Counsel for the commission confirmed this fact at the argument of the present appeal at Pittsburgh on April 25, 1945. But the majority opinion still leaves the commission with no alternative but to repeat the error. It is immaterial that the utility has not questioned the present order as confiscatory; the order is a nullity, and the proceeding is before us in its entirety for an independent judicial determination of findings of fact establishing value. Accordingly, it is my view, in order that no more confusion may be created in the utility law especially as it relates to valuation, we should make our own determination of fair value and express our independent judgment as to both the law and the facts.1 See Solar Electric Co. v. Pennsylvania Public *Page 242 Utility Commission et al., 137 Pa. Super. 325, 353, 354,9 A.2d 447. The utility had claimed that confiscation of its property would result from the enforcement of the commission's order of December 7, 1942. Naturally it does not make such a claim as to the order of February 16, 1944,2 which is invalid due to our manifest errors with which the commission sought to comply against its own judgment. But for such an erroneous view of the law given by this court, the commission would not have reached the conclusion that it did upon this record.
The majority opinion now reverses Peoples Natural Gas Companyv. Pennsylvania Public Utility Commission, 153 Pa. Super. 475, 34 A.2d 375, as to expensed items in the determination of the rate base. To this extent I concur. My reasons are given in my dissent in 153 Pa. Super. 475, 503, 34 A.2d 375, 391. In 153 Pa. Super. 475, 34 A.2d 375, in reversing the commission for the exclusion of expensed items, this *Page 243
court relied upon Hope Natural Gas Company v. Federal PowerCommission, 134 F.2d 287, later reversed in Federal PowerCommission et al. v. Hope Natural Gas Co., 320 U.S. 591,64 S. Ct. 281, 88 L. Ed. 333, and indicated that as long as present fair value is the base capital investment items must be included although charged to expense. In that opinion this court also said (p. 486): "That appellant owns the property and is using it in the service is unquestioned. And, so long as present fair value is the test, it makes no difference whether appellant bought it, received it as a gift, or won it in a lottery." It is significant that the majority opinion now modifies this concept of fair value.
In the majority opinion the principle of "the law of the case" is invoked but not followed. It corrects at least one of the errors in the opinion in the Peoples case, 153 Pa. Super. 475, 34 A.2d 375. I am at a loss to understand upon what principle of law it can be supposed that this court has no power in this case now before us to correct other more material errors. The principle of "the law of the case" has little, if any, application in public utility rate cases. I believe we are free to make a complete, instead of a partial, correction of errors made in our former decision. See Reamer's Estate, 331 Pa. 117,122, 123, 200 A. 35; 3 Am. Jur. p. 546, § 990.
The majority opinion goes on to say: "Solar Electric Co. v. P.U.C., supra (137 Pa. Super. 325, 9 A.2d 447), is the present rate-making law of this State. . . . It was our intention in the prior appeal (153 Pa. Super. 475) not to modify the general principles of the Solar case." In view of such statements in the majority opinion, it is impossible to ascertain the applicable law of this state in determining the fair value of the property of a utility.
I do not agree that Solar Electric Co. v. Pennsylvania PublicUtility Commission et al., 137 Pa. Super. 325, 9 A.2d 447, is the present rate-making law of this *Page 244
state, or the applicable law in determining the fair value of the property of a utility. I think the Solar Electric Company case, inter alia, has been overruled.
In the Peoples case, 153 Pa. Super. 475, 34 A.2d 375, all of the elements upon which the commission made its finding of fair value (exclusive of working capital) were eliminated except reproduction cost new less depreciation. The commission had considered reproduction cost depreciated, original cost depreciated, book value, and invested capital for a limited purpose (see footnote 2). Under that decision of this court it is obvious that the commission could not make a finding of fair value based on any elements other than reproduction cost depreciated, or the equivalent — original cost trended. It can readily be seen that the commission is bound to a formula which requires adherence to one element, to wit, reproduction cost new less depreciation. I think it may be safely asserted that this is in conflict with our statutory law and the pronouncements of this court. In that opinion it is said (p. 489): "Since the legislature put fair value into our law, together with what in 1937, when the law was passed, was universally understood to have been the elements of fair value, that body alone can take it out and substitute something else in its place." Reliance was placed upon McCardle v. Indianapolis Water Co., 272 U.S. 400,47 S. Ct. 144, 71 L. Ed. 316, as establishing reproduction cost as the dominant basis of value. The McCardle case was decided in 1926. In 1933, Mr. Chief Justice HUGHES wrote the opinion in LosAngeles Gas Electric Corp. v. Railroad Commission ofCalifornia, 289 U.S. 287, 53 S. Ct. 637, 77 L. Ed. 1180. There is no reasonable ground to intimate or assert that the legislature in 1937 meant fair value to be as indicated in the McCardle case in 1926 rather than as understood in the Los Angeles case in 1933. Our present situation is a glaring example of the failure to realistically approach the subject of valuation. To attempt to control the commission's judgment on a *Page 245
matter of valuation by insisting upon a particular formula is only conducive to chaos in the field of rate-making. Valuation, under Smyth v. Ames, 169 U.S. 466, 18 S. Ct. 418, 42 L. Ed. 819, may be cumbersome and permit consideration of a polyglot of elements, but it at least has afforded an opportunity for a commission to utilize its judgment without undue restraint. Mr. Justice HARLAN, in Smyth v. Ames, 169 U.S. 466, 18 S. Ct. 418,42 L. Ed. 819, 849, said: "And, in order to ascertain that value [fair value], the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property."
In Solar Electric Co. v. Pennsylvania Public Utility Commissionet al., supra, 137 Pa. Super. 325, 347, 9 A.2d 447, 461, we said: "The Supreme Court of Pennsylvania and this court have consistently followed the rule of Smyth v. Ames in the valuation of the property of public utilities." See Erie City et al. v.Public Service Commission, 278 Pa. 512, 521, 123 A. 471; BangorWater Co. v. Public Service Commission, 82 Pa. Super. 48. In the Solar Electric Company case, in making our own determination of fair value, we said that our "independent judgment" was exercised "after considering the character of respondent's plant, the book cost of invested capital as shown on the company's books, the reproduction cost new and the accrued depreciation."
In view of these pronouncements by our court, determination of fair value, in the manner prescribed in the Peoples case,153 Pa. Super. 475, 34 A.2d 375, is diametrically contrary to the legal principles recognized as applicable up to that time. *Page 246
The elements upon which a finding of fair value could be made were enumerated in section 20, art. 5, of the Public Service Company Law of 1913, P.L. 1374, which reads as follows: "In ascertaining and determining such fair value, the commission may determine every fact, matter, or thing which, in its judgment, does or may have any bearing on such value; and may take into consideration, among other things, the original cost of construction, particularly with reference to the amount expended in the existing and useful permanent improvements; with such consideration for the amount in market value of its bonds and stocks, the probable earning capacity of the property under particular rates prescribed by statute or ordinance, or other municipal contract, or fixed or proposed by the commission, and for the items of expenditures for obsolete equipment and construction, as the circumstances and the historical development of the enterprise may warrant; the reproduction costs of the property, based upon the fair average price of materials, property, and labor, and the developmental and going concern value of such public service company; and these, and any other elements of value, shall be given such weight by the commission as may be just and right in each case.
"(b) The Commission shall also have power to make revaluations of the property of any public service company, from time to time, and to ascertain and determine the value of new construction, extensions, and additions to the same."
The Act of 1937 did not enumerate the elements to be considered by the commission in fixing fair value of a utility's property. Section 311, art. 3, of the Act of May 28, 1937, P.L. 1053, 66 P. S. § 1151, reads as follows: "The commission may, after reasonable notice and hearing, ascertain and fix the fair value of the whole or any part of the property of any public utility, in so far as the same is material to the exercise of the jurisdiction of the commission, and may make revaluations from time to *Page 247
time and ascertain the fair value of all new construction, extensions, and additions to the property of any public utility. When any public utility furnishes more than one of the different types of utility service enumerated in paragraph seventeen of section two of this act, the commission shall segregate the property used and useful in furnishing each type of such service, and shall not consider the property of such public utility as a unit in determining the value of the property of such public utility for the purpose of fixing rates."
The term "fair value" in section 311, 66 P. S. § 1151, and the term "just and reasonable rates" in section 309, 66 P. S. § 1149, were apparently left undefined by the legislature for a purpose. At most, reproduction cost is to be considered; it is not the dominant basis of fair value. As the legislature did not define or limit such terms, it could very properly be assumed that the concept of that which is "fair value" and the concept of that which is "just and reasonable" might change from time to time, although this court has taken the position that the Act of 1937, in section 311, art. 3, 66 P. S. § 1151, continued the provisions of section 20, art. 5, of the Act of 1913.
I think the commission originally gave as much consideration to the reproduction cost element as was reasonably warranted under the conditions presented in this case, and we had no substantial ground for reversal. The burden of proof in a rate case is on the utility. "What the commission may see fit to ask for is one thing, but what a utility must produce in order to sustain its burden of proof in a rate case is a different matter": PeoplesNatural Gas Co. v. Pennsylvania Public Utility Commission,141 Pa. Super. 5, 15, 14 A.2d 133, 137. The commission made a finding of reproduction cost, but it pointed out that this finding was on unreliable evidence. The weight therefore to be given to such finding was to be determined by the facts in this case. The basis of calculation of fair value, in the order of *Page 248
February 16, 1944, as admitted by commission's counsel at the argument at Pittsburgh, is the discredited testimony as to reproduction cost. It is true that the United States Supreme Court, in McCardle v. Indianapolis Water Co., supra,272 U.S. 400, 47 S. Ct. 144, 71 L. Ed. 316 (1926), places great emphasis on reproduction cost. It reiterated this doctrine in St. Louis O'Fallon Railway Co. v. United States, 279 U.S. 461,49 S. Ct. 384, 73 L. Ed. 798 (1929), but prior to the enactment by the Pennsylvania legislature of the Public Utility Law of 1937 there was a considerable change in attitude on the part of the United States Supreme Court as to those theories which we have adopted without any consideration of subsequent modification by that court. In 1933, in Los Angeles Gas Electric Corp. v. RailroadCommission of California, supra, 289 U.S. 287, 53 S. Ct. 637,77 L. Ed. 1180, 1193, Mr. Chief Justice HUGHES said: "The actual cost of the property — the investment the owners have made — is a relevant fact. Smyth v. Ames, 169 U.S. 466, 547, 42 L. Ed. 819,849, 18 S. Ct. 418." In that case the court found that while the California commission had based its rates principally upon investment costs, it had done so largely because evidence as to reproduction cost was unreliable; and that on the whole the California commission had given as much consideration to the reproduction cost factor as was warranted under the circumstances. Mr. Chief Justice HUGHES, in his opinion, also pointed out that both actual cost and reproduction cost were relevant facts, but that neither was the final and exclusive test; and that the weight to be given to either of them was to be determined by the facts of the particular case.
In 1942, in Federal Power Commission v. Natural Gas PipelineCo., 315 U.S. 575, 62 S. Ct. 736, 86 L. Ed. 1037, 1049, 1050, the United States Supreme Court went on to say: "The Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas. Agencies to whom this legislative *Page 249
power has been delegated are free, within the ambit of their statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances. Once a fair hearing has been given, proper findings made and other statutory requirements satisfied, the courts cannot intervene in the absence of a clear showing that the limits of due process have been overstepped."
Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591,64 S. Ct. 281, 88 L. Ed. 333, 345, was decided on January 3, 1944, wherein it was said: "It is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act3 is at an end. The fact that the method employed to reach that result may contain infirmities is not then important. Moreover, the Commission's order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order under the Act carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."
In the field of rate-making, we have been largely guided by the decisions of the United States Supreme Court, and have necessarily relied upon the views of that court as to the constitutional requirements. In Bangor Water Co. v. PublicService Commission, supra, 82 Pa. Super. 48, 55, this court, in an opinion by the late President Judge KELLER, said: "The decisions of the Supreme Court of the United States require us to base the fair return upon its present value; that is, its reasonable value at the time it is being used for the public."
"It is impossible," the majority opinion states, "from the order of the commission now before us to determine the process by which it determined the rate base." On *Page 250
the contrary, the order has no other basis to support its validity than the worthless testimony of the utility's witness as to reproduction cost. The standard furnished by the majority opinion for the future guidance of the commission is of such a nature as to be impossible of practical application except in so far as the commission is obliged to accept the utility's evidence as to depreciated reproduction cost in the determination of fair value and in fixing a rate base.
A pertinent inquiry would be: Where do we stand on utility valuation as a result of the Peoples case, 153 Pa. Super. 475, 34 A.2d 375, and Philadelphia Transportation Co. v.Pennsylvania Public Utility Commission, 155 Pa. Super. 9,37 A.2d 138, and the majority opinion in the present case? In the Philadelphia Transportation Company case this court said (p. 21): "This finding [of original cost] is ineffective in determining value for the reason that the costs were not trended to reflect current prices of labor and materials on that date." In the same case we also said (p. 22): "In the absence of adjustments of original or historical costs to determine present fair value as of the date in question the finding of the commission [as to original cost] is entitled to little consideration as a determining element."
In the Peoples case, 153 Pa. Super. 475, 484,34 A.2d 375, this court said that unless there has been no great change in cost levels, or there has been a change but proper adjustment made based upon competent evidence of price trends, original cost is irrelevant to rate base determination. Now we again say — original cost must be trended. Such pronouncements are judicial legislation, and are in conflict with our own statements and with the statutory law which we have recognized. If any such qualification of original cost as an element of fair value exists, it is not to be found in any statute or legislative enactment; and no acceptable reason has been even suggested in support of the validity of such judicial *Page 251
amendment. In the Peoples case, 153 Pa. Super. 475, 482,488, 34 A.2d 375, we said "the legislative mandate in this commonwealth is that the rate base is fair value," and that "our legislature adopted the Public Utility Law of 1937 and wrote `fair value' into section 311 (66 P. S. § 1151), and that standard, minus a detailed list of the elements constituting fair value, was carried over from the Public Service Act of 1913." In order to retain a proper perspective, it is to be noted that five months later, in the Philadelphia Transportation Company case, we refused to be bound by these declarations, and rejected the fair value elements which did not suit us notwithstanding the plain words of the statute which we had held controlling but did not follow.
I have previously quoted section 20, art. 5, of the Public Service Company Law of 1913. In construing that section we have said it was mandatory to consider all of the elements enumerated in the section. We said in Beaver Valley Water Company v. PublicService Commission, 76 Pa. Super. 255, at page 259: "The Public Service Company Law (article V, section 20a), directs that in ascertaining and determining the fair value of a public service company's property it may [shall] take into consideration among other things (1) the original cost of construction; (2) the amount in market value of its bonds and stocks; (3) the probable earning capacity under the rates fixed by the commission; (4) expenditures for obsolete equipment and construction, — (as warranted, in connection with (2), (3) and (4), by the circumstances and historical development of the enterprise) —; (5) reproduction costs of the property, based upon the fair average price of materials, property and labor; (6) developmental and going concern value — all of which, together with any other elements of value, are to be given such weight as may be just and right in each case." See, also, Bangor Water Co. v. PublicService Commission, supra, 82 Pa. Super. 48, 52.
Nevertheless, in the Peoples case, 153 Pa. Super. 475,34 A.2d 375, and in the Philadelphia Transportation *Page 252 Company case, 155 Pa. Super. 9, 37 A.2d 138, and again in the present majority opinion, this court has ruled out original cost of construction unless the items are trended, and by elimination nothing is left upon which a rate base can be predicated by the commission except reproduction cost new less depreciation. The result is palpably wrong, and the power to fix fair value passes largely to the utility. As the first specific element of fair value, original cost is mentioned both in the Act of 1913 and in our opinion in the Beaver Valley Water Company
case without any limitation or suggestion that consideration of this element shall depend either upon the persistence of price levels or the application of trends. The same is true of Smyth v.Ames. To the contrary actual invested capital has always been considered in Pennsylvania as one of the relevant valuation factors. See Highspire Water Co. v. Public Service Commission,76 Pa. Super. 504; Borough of Lewistown v. Public ServiceCommission, 80 Pa. Super. 528; New Street Bridge Co. v.Public Service Commission, 271 Pa. 19, 38, 114 A. 378.
In the Solar Electric Company case, in making our own determination of fair value, we considered book cost of investments, and therefore the commission should not be prohibited from doing likewise. Rate-making should be a simple process rather than a tangled and mystic affair. The administrative agency should have freedom of action under equitable principles. Original cost less depreciation is a ready and equitable element for making a finding of fair value and for ultimate fixing of rates; likewise the straight-line or age-life method is proper for determining the amount of depreciation to be deducted from the cost of the plant.
Adding to the confusion is our statement in the PhiladelphiaTransportation Company case that the market value of securities as one of the elements to be considered in finding fair value should have been disregarded by the commission. This holding is in conflict *Page 253
with the statutory mandates as interpreted by us in other cases, as well as with the rules of law previously laid down by this court with respect to the factors to be considered in arriving at a fair value determination. In Solar Electric Company case, supra, 137 Pa. Super. 325, 9 A.2d 447, we said that we followed Smyth v. Ames, and that the elements to be considered by the commission in ascertaining and determining fair value were those enumerated in section 20, art. 5, of the Public Service Company Law of 1913, P.L. 1374, and we went on to say (p. 336): "While the new act (Public Utility Law) does not go into details as to the items which should be considered by the commission in fixing the fair value of a utility's property, as fully as the old act (Public Service Company Law) did, this was not because of any intention to change the law in this respect, but because the decisions of the United States Supreme Court and of our Supreme Court had definitely settled the principles to be applied by the commission in arriving at such fair value, and they did not require elaboration in the statute." Section 20, art. 5, of the Public Service Company Law of 1913, and Smyth v. Ames recognized market value of bonds and stocks as one of the relevant elements to be considered by the commission in determining fair value.
We have thus, so far as the State of Pennsylvania is concerned, neither consistency nor continuity of the utility law.
I think a solution of this case might be for us to accept the commission's original finding of fair value, including working capital, of $21,566,085, and accept the alleged additions to the utility's property since 1938, in the net amount of $4,334,096, providing it is stipulated that this amount represents capital investment and not expensed items. We would thus have a rate base of $25,900,181, with an allowable return of 6 1/2 per cent. This would be adequate for all purposes, and would represent fair value determined in accordance with the law.
ROSS, J., joins in this dissent.
1 "The argument for insisting upon the necessity for an independent judicial determination of findings of fact establishing values can be neatly stated in the form of a syllogism. Rate-making is an appropriate exercise of the legislative power provided that the rates are not confiscatory. Whether or not they are confiscatory depends upon the correctness of the finding as to value. The facts relating to value must thus be independently found by a court in order for a court to conclude that a particular legislative act was within the legislative power; otherwise the legislature would itself be finding the facts upon which the very exercise of legislative power depends. It was thus not enough for a court to satisfy itself that the trier of the facts, the administrative, had followed the correct rules as to valuation. Instead, the actual determination of value had to be made by the court": The Administrative Process, James M. Landis, pp. 127, 128. See OhioValley Water Co. v. Ben Avon Borough, 253 U.S. 287,40 S. Ct. 527, 64 L. Ed. 908.
2 Utility's average annual earnings for 10 years preceding rate increase (4173a, 4191a) ................... $1,010,206.60
Utility's own estimate of annual earnings in justification of increased rates (2763a) ............................. 708,295.04
Annual earnings allowed by commission's original order of December 7, 1942 (3721a) ........................... 1,401,796.00
Annual earnings allowed by commission's order of February 16, 1944, after case remanded by this court (4364a) ..................... 2,528,500.00
The commission originally found that the Standard Oil Company was the sole owner of the utility, and that the total invested capital was $12,744,126. (3563a) The commission did not consider invested capital as being a direct factor in fair value determination, but it did point out that such capital performed a very important function by showing at what point a fair value finding would work a hardship on the utility's owners.
3 The Federal Natural Gas Act of 1938 and the Pennsylvania Public Utility Law of 1937 are similar in some respects. *Page 254 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3861283/ | Argued October 26, 1944.
On March 29, 1944, information was lodged charging George Bausewine, chief of police of the borough of Norristown, with bribery and non-feasance in office. The same day notice was served on the district attorney by the defendant waiving a hearing and also presentment to the grand jury. In compliance with defendant's request and in pursuance of the Act of June 15, 1939, P.L. 400, 19 P. S. § 241, eight district attorney bills were prepared and submitted to his counsel, who made some suggestions for changes in the wording of the bills, which were adopted. On April 3, 1944, the date of the trial, the defendant filed a formal waiver of indictment. Before the case reached the jury six of the bills had been withdrawn from its consideration. The defendant was convicted of bribery and non-feasance in office on the remaining two bills, to wit No. 95 February Term, 1944 and No. 95-5 February Term, 1944, respectively.
We will first give consideration to the appellant's contention that the evidence was insufficient as a matter of law to support his conviction and that the verdict was clearly against the weight of the evidence. This requires a review in some detail of the testimony. The Fraternal Order of Orioles, hereinafter referred to as Orioles, maintained a clubhouse in Norristown in which were operated eight illegal slot machines for at least a period of two years, which included 1943 and a part of 1944. The profits from these machines to the Orioles were shown to have averaged $2,750 a month.
Vincent U. McCafferty, called by the commonwealth, testified that in 1942 a man by the name of Kriebel was the chief steward and that he, assistant steward, drove him to Bausewine's home in 1942. Kriebel having died in January 1943, McCafferty "carried out just as he did." Every month from January 1943 up to and including January 1944 he put $50 in cash in an envelope and delivered it to Bausewine. *Page 538
There appears in the minutes of the house committee of the Orioles as of February 7, 1944, the following: "Agreed that as this club is operated in a strictly legitimate manner, no money to be paid anyone as so-called protection money." There was no proof that any money was paid Bausewine during the month of February. McCafferty said that on March 10, 1944, he received a telephone call about 6 o'clock from the defendant asking him how he was and where he had been. He answered: "Seven o'clock tonight." The defendant replied: "Okay." Shortly after seven that evening John Gilinger, chairman of the house committee of the Orioles in his car drove the witness to Bausewine's home. McCafferty had in his possession the envelope containing $50, which he had previously shown Gilinger. Arriving in front of the Bausewine house he proceeded up the walk and as he was on the porch, Bausewine, who had been sitting at the window, opened the door and received the money. McCafferty was asked with whom he had a conversation as a result of which he made this payment to Bausewine. He replied Mr. Morrow, the president of the Orioles. Gilinger corroborated this testimony relating to the visit to the defendant's house and the delivery to him of the envelope containing the money.
The credibility of McCafferty was vigorously attacked. He had originally stated on March 16, 1944, that the final payment of $50 was made to Bausewine on the evening of March 14, 1944, and subscribed to a written statement to that effect in the office of the district attorney, although he did not appear very positive as to the date. Accordingly the information and the bills of indictment originally alleged March 14 as the date of the last payment. It became apparent subsequently to the district attorney that March 14 could not have been the date on which McCafferty made the final payment as beyond question between 5:00 and 9:00 P.M. on *Page 539
that day the defendant was continuously in a meeting of the Commercial Club, where there were present many prominent citizens of Norristown. The district attorney again interviewed McCafferty in an effort to learn the correct date of this alleged last payment. McCafferty then acknowledged his error and fixed the date as March 10, 1944, explaining that when he made his first statement he was confused, nervous and excited due to the unusual experience of appearing in the district attorney's office, where there were detectives and police present. He explained that he recalled the correct date after talking to his brother Joseph, to whom he had loaned his car on the date the payment was made. That was the reason given for using the Gilinger car. Joseph McCafferty was called and corroborated his brother's testimony as to borrowing his car on March 10.
Bausewine's defense was that he did not know McCafferty and he denied that he ever received any money from him, although he did not specifically deny the telephone conversation to which we have referred. A further defense was that of an alibi. He introduced testimony that between 3:00 and 9:00 P.M. of the evening in question he was several miles away from his home taking a ride with a friend named Lewis; that in the course of this trip they made stops at two different hotels. The proprietors of these hotels, friends of Bausewine, and Lewis were called as witnesses to support his alibi defense.
The defendant claims further that his arrest was the result of a frameup; that Gilinger, chairman of the house committee of the Orioles, was a brother-in-law of Captain Butler of the Norristown police force, against whom he had made formal charges of falsifying his alleged resignation from the state police and accepting a bribe while a member of that organization and that it was he in retaliation who was the instigator of this prosecution. *Page 540
It is true that some of the commonwealth's testimony was circumstantial. Chief Justice MAXEY in an opinion in Commonwealthv. De Petro et al., 350 Pa. 567, 39 A.2d 838, interestingly discusses the test to be applied in passing upon the probative value of circumstantial evidence. That opinion cited with approval Commonwealth v. Skwortzo, 113 Pa. Super. 345,173 A. 480, where it was stated p. 348, that if the substance of the testimony is not "so weak and inconclusive that as a matter of law no probability can be drawn from the combined circumstances" then it will support a verdict of guilty.
This question naturally arises: What prompted the extraordinary minute of the house committee? It will not require an inordinately suspicious mind to conclude that there was some basis for its passage. It is a reasonable inference that the Orioles subsequently concluded for reasons that were persuasive, to continue the monthly payments notwithstanding the minute of the house committee. Under the evidence adduced the trial judge would have committed clear error if he had withdrawn this case from the jury's consideration, as there were controversial questions of fact for their consideration. If they believed, as they apparently did, that these payments were made and were for the purpose alleged, the verdict was warranted. We have no difficulty in concluding that the evidence was sufficient to support the conviction.
Nor can we say that the verdict was so clearly against the weight of the evidence as to convict the trial judge of abuse of discretion in not granting a new trial. He had the benefit of seeing and hearing the witnesses and expressed the opinion that the verdict was not so shocking to his conscience as to warrant the granting of a new trial, as "a very fair minded" jury heard the case. The granting or refusal of a new trial in criminal, as well as civil, cases on the ground that the verdict is against the weight of the evidence, is a matter largely *Page 541
within the sound discretion of the trial judge: Commonwealth v.Croce, 89 Pa. Super. 249, 250, 251; Commonwealth v. Samson,130 Pa. Super. 65, 76, 196 A. 564.
The appellant's next contention is that the Chief of Police of Norristown is an officer of the commonwealth within the meaning of the statute defining bribery and that under the well recognized rule where a crime is punishable by statute a defendant cannot be proceeded against at common law: § 1104 of 1939 Criminal Code, supra, 18 Pa.C.S.A. § 5104; Commonwealth v. Clark,123 Pa. Super. 277, 294, 187 A. 237; Commonwealth v.Peoples et al., 345 Pa. 576, 579, 28 A.2d 792. The defendant was charged with bribery at common law and also under the statute. The defense contends, and we think correctly, that the commonwealth at the trial relied upon the common law charge. True, the defendant raised no objection at the trial that the offense came within the 1939 statute, supra, and that therefore there could be no conviction of common law bribery. It was not too late, however, to raise this question in arrest of judgment;Commonwealth ex rel Mees v. Mathieu II, 107 Pa. Super. 261,265, 163 A. 109.
We will turn now to consider section 303 of the Criminal Code of 1939, supra, 18 Pa.C.S.A. § 4303, to determine whether defendant comes within its terms. It provides as follows: "Whoever shall directly or indirectly . . . . . . give or make any . . . . . . payment . . . . . . of any money, goods, or other thing, in order to obtain or influence the vote, opinion, verdict, award, judgment, decree, or behavior of any member of the General Assembly, or any officer of this Commonwealth, judge, juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter or thing whatsoever, depending or which shall depend before him or them, is guilty of bribery, a misdemeanor. . . . . ." (Italics supplied.) *Page 542
Is the chief of police of Norristown an officer of this commonwealth? Section 1125 of the General Borough Act of May 4, 1927, P.L. 519, Article XI, as amended June 24, 1939, P.L. 689,53 P. S. § 13201, provides that borough councils may appoint, pay and remove the chief of police and that the burgess of the borough shall have full charge and control of this officer. He is an officer of a borough within the commonwealth, but not an official of the Commonwealth of Pennsylvania. An analysis of the language in this statute confirms that view. Section 303, supra, relates to a thing to be attained or influenced by a bribe. "Vote, opinion, verdict, award, judgment, decree or behavior" are specified. A chief of police has no official relation with any of those matters. Those who come within the provisions of that section are legislators, judges, jurors, etc., who make up the legislative and judicial branches of our government. They are the officers of the commonwealth within the purview of the statute. Nothing is said in this section about municipal officers. Then we go further and examine sections 304 and 305, 18 Pa.C.S.A. § 4304, 4305, dealing with corrupt solicitation and the practice of corrupt solicitation of "municipal officers" and "public officers of the State or of any political subdivision thereof." If the legislature had meant to embrace within section 303 municipal officers, it would have said so definitely as it did in sections 304 and 305. An officer of the commonwealth is generally, if not always, regarded as a public officer, but those who occupy a subordinate position in a municipality, such as policemen, firemen, etc., who are employed and paid by the municipality, do not have a definite term of office, and whose duties are discharged primarily in connection with municipal affairs, even though they are in a sense in the public service, cannot properly be considered as public officers or officers of the commonwealth. Nor are they regarded as public officers within the constitutional provision of Article 6 of section 4. "Where, *Page 543
however, the officer exercises important public duties and has delegated to him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a public officer." Richie v.Philadelphia, 225 Pa. 511, 516, 74 A. 430. See, also, Finley v.McNair et al., 317 Pa. 278, 281, 176 A. 10.
Houseman v. Commonwealth, 100 Pa. 222, cited by the appellant is not in conflict with our conclusion that this defendant was not an officer of the commonwealth. That case involved the construction of section 4, article 6 of the Constitution and involved the right to remove a collector of delinquent taxes in the city of Philadelphia, prior to the expiration of the term of his appointment. It was held there that the receiver of delinquent taxes in Philadelphia is a public officer as a considerable part of the money collected, amounting to a very large sum, is payable to the commonwealth, which indicates the public character of his official position.
Some of the cases cited by the appellant involves members of the state police. This defendant cannot be compared to a superintendent of the state police, or to a member of that force. They are officers of the commonwealth appointed and subject to removal by state officials and paid out of state funds.
In Commonwealth v. Norris, 87 Pa. Super. 61, the defendant was a chief of police of the borough of Emporium and was indicted, charged with extortion under section 12 of the Criminal Code of 1860, P.L. 382, 18 Pa.C.S.A. § 281. That act is limited to certain clerks, prothonotaries, etc., "or other officer of this commonwealth." The defendant was found guilty of extortion as "an officer of this Commonwealth." An appeal was taken to this court and we held that while the defendant could not be convicted under section 12 because he was not such an officer as comes within the provisions, it *Page 544
does not follow that he could not be convicted of extortion at common law. See, also, Commonwealth v. Ruff, 92 Pa. Super. 530,536. If the chief of police of a borough could not be convicted of extortion under that statute, he does not by the same reasoning, come within the statute making the acceptance of a bribe an offense. True, bribery and extortion are different offenses, but they are very closely allied: Commonwealth v.Wilson, 30 Pa. Super. 26, 31. We think the reasoning in theNorris case is applicable to the one in hand. Our study of the Act of 1939, supra, which as a penal statute must be construed strictly, brings us to the conclusion that the defendant is not an officer of the commonwealth and within its purview. But a conviction had under the common law is sustainable: Commonwealthof Pa. v. Benedict et al., 114 Pa. Super. 183, 173 A. 750.
The appellant further asserts that the conviction under bill No. 95-5 is invalid. This bill is endorsed on the back "Obstructing Justice and the Administration of Government" and charged that defendant ". . . . . . being then and there chief of police of the Borough of Norristown, and by virtue of such office being then and there charged with a public duty to uphold, maintain and enforce the ordinance of the said Borough and the laws of the Commonwealth, did corruptly refrain from doing his official duty in permitting the Fraternal Order of Orioles Nest No. 152, Norristown, Pa., to set up, maintain and exhibit certain gambling devices, to wit: slot machines . . . . . .; and further that he, the said George Bausewine, did conduct himself on the said fourteenth day of March A.D. 1944, and divers other times within two years last past, so as to injure or tend to injure, obstruct and prevent public justice and the administration of government, against the peace and dignity of the Commonwealth of Pennsylvania."
The court ruled the first part of this bill could be sustained as a charge of non-feasance in office, failing *Page 545
to discharge his duties, and as such submitted it to the jury, but withdrew from its consideration the second part charging obstruction of justice. No valid objection can prevail to having two or more counts included in one bill where they are founded on the same facts and arise out of the same offense.
Appellant claims that this was a fundamental and prejudicial error in that he was called upon to answer a new and different charge than that averred in the bill. He concedes, as indeed he must, that the caption is not part of the indictment (Brown v.Commonwealth, 78 Pa. 122) and he does not claim that the first part of the bill does not sufficiently charge non-feasance in office, but asserts that the trial judge withdrew from the consideration of the jury bill. No. 95-4, which charged non-feasance, because the evidence was insufficient to establish that offense. At that time the trial judge stated that there was not sufficient evidence to support the averments in that bill, but called attention to the fact that the averment in the bill under consideration was different. The former charged the defendant with aiding and abetting the Orioles in setting up andmaintaining the slot machines. The trial judge then said that the non-feasance should have been stated in that bill as in bill No. 95-5, now under attack. It is argued also that under section 13 of the Act of March 31, 1860, P.L. 427, 19 P. S. § 433, amendments made during the trial are limited to instances where there have been variances between the indictment and the evidence offered in proof thereof; that here there was no such variance and that the change went to the substance of the indictment, and as amended it charged a different offense. We do not agree at all with this position. There was no amendment made or new charges introduced. The well recognized rule is that every indictment for a common law offense shall be deemed sufficient if it charges the crime so plainly that the nature of the offense may be understood, that the courts look more *Page 546
to attaining substantial justice than supporting technical and artificial objections to the pleadings: Commonwealth v. Norris,
supra, p. 64. The defendant was not harmed or prejudiced by the court's action. We find no merit in this complaint.
The last objection that the sentence is invalid must be sustained. The court imposed sentence on each bill, directing the defendant in each case to pay a fine of $100 and undergo imprisonment in Montgomery County prison in single and solitary confinement at labor for not less than 4 months and not more than 23 months until the sentence is complied with. The sentences to run concurrently. The appellant was convicted of misdemeanors at common law. Under Pennsylvania common law, felonies are punishable by solitary confinement and hard labor, but misdemeanors are punishable by fine and imprisonment:Commonwealth v. Gable, 7 S. R. 423, 435.
Under section 1101 of the Penal Code of June 24, 1939, P.L. 872, 18 Pa.C.S.A. § 5101: "Every offense now punishable either by the statute or common law of this commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore." These offenses, therefore, were punishable by "fine and imprisonment." Commonwealth v. De Grange,97 Pa. Super. 181, 188. Imprisonment or simple imprisonment means confinement in a county jail or workhouse. Imprisonment at labor by separate or solitary confinement means confinement in the penitentiary or a suitable county prison: Commonwealth of Pa.v. Arbach, 113 Pa. Super. 137, 139, 172 A. 311.
The Act of June 19, 1911, P.L. 1055, § 6, as amended by the Act of June 29, 1923, P.L. 975, § 1, 19 P. S. § 1057, authorizing imposition of sentence for indefinite term, applies only to crimes punishable by imprisonment in a state penitentiary:Commonwealth ex rel. Guiramez v. Ashe, Warden, 293 Pa. 18, 20,141 A. 723. Where there is no punishment fixed by statute, the court may *Page 547
pass judgment of a character similar to that provided for the class of offenses to which the particular crime belongs:Commonwealth v. Kelsea, 103 Pa. Super. 399, 401, 157 A. 42.
As there is no defect in the indictment or error in the trial it is not necessary to reverse the proceedings, but as the sentence is improper the record will be remitted for the passing of a proper sentence: Commonwealth of Pa. v. Williams and Breese,102 Pa. Super. 216, 156 A. 711; Commonwealth ex rel. Paigev. Smith, Warden, 130 Pa. Super. 536, 548, 198 A. 812.
We have carefully considered this record and read with interest the exhaustive brief of counsel for the appellant. All the questions discussed therein have been carefully considered. We are convinced that appellant had a fair, impartial and legal trial. Practically all the legal positions taken by him were adopted by the trial judge and he has not complained of any inadequacy or unfairness in the charge.
The conviction is sustained, but the record is remanded for resentence according to law. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3403920/ | 1. The failure of the plaintiff in error to pay the costs for sending up the transcript of the record from the trial court to the appellate court is not a good ground for the dismissal of the writ of error. The clerk is entitled to a judgment for the amount of such unpaid costs, under the provisions of the Code, § 24-2729, except in cases where affidavit of inability to pay cost is filed.
2. An appeal is a de novo investigation, and it was error for the court to dismiss the appeal where there was no defect in the appeal proceedings, and where the adverse party did not consent for the appeal to be withdrawn or dismissed.
DECIDED APRIL 16, 1945.
R. L. Bethea as county administrator for Jefferson County, Georgia, filed in the court of ordinary of that county an application for the appointment of a permanent administrator for the estate of Summer field Tucker Dixon, deceased, alleging that the deceased was a resident of Jefferson County at the time of his death and that he left an estate of real and personal property worth about $2000; that he died intestate; that his estate was unrepresented; and "that the said estate is not likely to be represented unless permanent letters of administration thereon are issued in pursuance of this petition." He prayed for the usual citation, which was issued and published as required by law. Hubert Dixon, A. D. Dixon, Mrs. W. E. Smith, Mrs. L. R. Pafford, and Mrs. L. H. Walden, as the sole heirs at law of Summerfield Tucker Dixon, filed a caveat in which they objected to the appointment of an administrator for the estate of the said deceased. The case was tried in the court of ordinary and the ordinary rendered a judgment sustaining the caveat and refusing to appoint an administrator, on the ground that the applicant had failed to show that the deceased owned any property at the time of his death. The applicant appealed the case to the superior court, and when it came on for trial there the caveators made a written motion to dismiss the appeal, not for any defect in the appeal proceedings, but for several other reasons, the substance of which was to the effect that the county administrator in seeking to administer on the S. T. Dixon estate was doing so at the instance of W. T. Rawleigh Company, whose debt had been discharged in the United States bankruptcy court, and no appeal was pending to said discharge; that the creditors of S. T. Dixon were represented in the bankruptcy court by a duly appointed trustee in the bankruptcy proceeding, he being the only person who can and does represent the creditors; and that since the complaining creditor, W. T. Rawleigh Company, is barred by discharge in bankruptcy, any estate of S. T. Dixon not impounded by the trustee in bankruptcy, belongs to the heirs at law of S. T. Dixon and it is their privilege not to have an administration, if they so desire. The court sustained the motion and dismissed the appeal, and the applicant excepted to that judgment. *Page 386
1. The motion of the defendant in error to dismiss the writ of error for failure of the plaintiff in error to pay all of the costs for sending up the transcript of the record from the trial court can not be sustained. "The failure of the plaintiff in error to pay the costs in the lower court is not a good ground for the dismissal of the writ of error in the reviewing court."Heyman v. Decatur Street Bank, 16 Ga. App. 14
(84 S.E. 483). Also, see Brewer v. Brewer, 6 Ga. 587; In the matterof Contempt by Four Clerks, 111 Ga. 89 (6) (36 S.E. 237). The clerk is entitled to a judgment for the amount of the costs for sending up the transcript of the record to the appellate court, under the provisions of the Code, § 24-2729, except in cases where affidavit of inability to pay cost is filed.
2. An appeal will lie to the superior court from a decision of the court of ordinary refusing the appointment of a permanent administrator (Code, § 6-201); and § 6-501, provides: "An appeal to the superior court is a de novo investigation. It brings up the whole record from the court below, and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not; either party is entitled to be heard on the whole merits of the case." § 6-503 is as follows: "No person shall be allowed to withdraw an appeal after it shall be entered, but by the consent of the adverse party." It was error to dismiss the appeal. The motion was not predicated on any defect in the appeal proceedings, but a dismissal was sought for reasons not appearing on the face of the appeal, or even in the application for administration. Whether the facts alleged in the motion to dismiss the appeal are sufficient to defeat the application for administration is not now up for decision. The appeal proceeding was a de novo investigation and the applicant was entitled to be heard on the merits of his case. For cases in point and controlling on the question here involved, see Rousch v.Green, 2 Ga. App. 112 (58 S.E. 313); Davenport v. Puett,4 Ga. App. 83 (60 S.E. 1031); Rabun v. Planters Cotton OilCo., 68 Ga. App. 37 (21 S.E.2d 922); Singer Mfg. Co. v.Walker, 77 Ga. 649.
Judgment reversed. Felton and Parker, JJ., concur. *Page 387 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2700097/ | [Cite as State v. Latimore, 2011-Ohio-3562.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2010CA00226
JAMES LATIMORE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010CR0167
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 18, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO ANTHONY KOUKOUTAS
PROSECUTING ATTORNEY, 116 Cleveland Ave. NW
STARK COUNTY, OHIO Suite 808
Canton, Ohio 44702
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00226 2
Hoffman, J.
{¶1} Defendant-appellant James Latimore appeals his conviction and sentence
entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE FACTS1 AND CASE
{¶2} On January 24, 2010, Appellant was involved in a high speed pursuit
involving members of the Canton Police Department. In the early morning hours,
Officer Thomas Hastings of the Canton Police Department testified he responded to a
call of “shots fired” at 1547 Robin Court S.E. Canton. When he saw the headlights of a
vehicle coming towards him, he decided to pursue that vehicle and get the license plate
number. Officer Hastings initiated a traffic stop, activating the sirens and lights of his
vehicle, at which point the suspect vehicle “took off.” Officer Hastings then became the
lead vehicle in pursuit of the suspect vehicle.
{¶3} Officer Brandon Shackle testified he and his partner were the second
vehicle in pursuit of the suspect vehicle. Officer Gary Premier joined the pursuit of the
suspect vehicle. Hastings testified the suspect vehicle went off the roadway, and he
then attempted to box in the vehicle. The suspect vehicle rammed his cruiser and tried
to drive away on foot. Appellant ultimately exited the suspect vehicle, and tried to run
away on foot. Officer Premier gave Appellant audible commands to stop, but Appellant
continued. Officer Premier proceeded to taser Appellant and then placed him under
arrest.
1
A more complete recitation of the facts will be set forth as necessary in the disposition
of Appellant’s individual assigned errors.
Stark County, Case No. 2010CA00226 3
{¶4} James Nosic testified at trial he and Appellant had been together
consuming alcohol during the early morning hours of January 24, 2010, and Appellant
was driving the vehicle they occupied the night in question. He testified he was drunk
on the night in question.
{¶5} Appellant was indicted on four counts of felonious assault, in violation of
R.C. 2903.11(A)(2), with four repeat violent offender specifications under 2941.149; one
count of failure to comply with an order or signal of a police officer, in violation of R.C.
2921.331B)(C)(5)(A)(II); one count of resisting arrest, in violation of R.C. 2921.33(C)(1),
and one count of domestic violence, in violation of R.C. 2919.25(A).
{¶6} A jury trial commenced on July 1, 2010. Appellant was found guilty on
three counts of felonious assault, one count of failure to comply with an order or signal
of a police officer, and one count of resisting arrest. The trial court then found Appellant
guilty of the three repeat violent offender specifications.
{¶7} The trial court proceeded to sentence Appellant to five years on each
count of felonious assault, two years for the failure to comply charge, to be served
consecutive to the terms for felonious assault, and sixty days for the resisting arrest
charge, to be served concurrent to the other sentences, for a total prison term of
seventeen years.
{¶8} Appellant now appeals, assigning as error:
{¶9} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶10} “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.
Stark County, Case No. 2010CA00226 4
{¶11} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
APPELLANT TO CONSECUTIVE SENTENCES.”
I.
{¶12} In the first assignment of error, Appellant maintains his convictions for
felonious assault and resisting arrest are against the manifest weight and sufficiency of
the evidence.
{¶13} Our standard of reviewing a claim a verdict was not supported by sufficient
evidence is to examine the evidence presented at trial to determine whether the
evidence, if believed, would convince the average mind of the accused's guilt beyond a
reasonable doubt. The relevant inquiry 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 proven beyond a reasonable doubt, State v. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, superseded by State constitutional
amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684
N.E.2d 668.
{¶14} The Supreme Court has explained the distinction between claims of
sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a
question for the trial court to determine whether the State has met its burden to produce
evidence on each element of the crime charged, sufficient for the matter to be submitted
to the jury.
{¶15} Manifest weight of the evidence claims concern the amount of evidence
offered in support of one side of the case, and is a jury question. We must determine
whether the jury, in interpreting the facts, so lost its way that its verdict results in a
Stark County, Case No. 2010CA00226 5
manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, 678
N.E.2d 541, 1997–Ohio–52, superseded by constitutional amendment on other grounds
as stated by State v. Smith, 80 Ohio St.3d 89, 1997–Ohio–355, 684 N.E.2d 668. On
review for manifest weight, a reviewing court is “to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the judgment must be
reversed. The discretionary power to grant a new hearing should be exercised only in
the exceptional case in which the evidence weighs heavily against the judgment.” State
v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175. Because the trier of fact is in a better position to observe the
witnesses' demeanor and weigh their credibility, the weight of the evidence and the
credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10
Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.
{¶16} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(2), which reads:
{¶17} “(A) No person shall knowingly do either of the following:
{¶18} “(1) Cause serious physical harm to another or to another's unborn;
{¶19} “(2) Cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordnance.”
{¶20} Appellant argues the record does not reflect he knowingly intended to
cause or attempt to cause physical harm to the officers; rather, his actions indicate he
Stark County, Case No. 2010CA00226 6
was merely attempting to flee the situation. Further, Appellant asserts the State has not
demonstrated the officers sustained serious physical harm as a result of the incident.
{¶21} Appellant was also convicted of resisting arrest, in violation of R.C.
2921.33, which reads:
{¶22} “(C) No person, recklessly or by force, shall resist or interfere with a lawful
arrest of the person or another person if either of the following applies:
{¶23} “(1) The offender, during the course of or as a result of the resistance or
interference, recklessly causes physical harm to a law enforcement officer by means of
a deadly weapon;”
{¶24} Appellant maintains he was the victim of excessive force, rather than user
of force during the arrest process.
{¶25} Officer Hastings testified at trial:
{¶26} “A. As soon as I hit my lights and sirens, he took off.
{¶27} “Q. Okay. Did you see any other cars behind you or did you know of any
other cars behind you?
{¶28} “A. I knew the other cruisers were directly behind my car, Cruisers No. 40
and 43.
{¶29} “Q. Who was in Cruiser 40?
{¶30} “A. 40 was driven by Officer Shackle and Dendinger.
{¶31} “Q. Okay.
{¶32} “A. Which is our 2-man car.
{¶33} “Q. Okay.
{¶34} “A. And Officer Premier was in Car No. 43.
Stark County, Case No. 2010CA00226 7
{¶35} “Q. Okay.
{¶36} “A. Those are the initial officers that were sent to the call.
{¶37} “Q. Okay. So you end up being the lead officer in the chase?
{¶38} “A. That’s correct.
{¶39} “* * *
{¶40} “A. I am in 37. I pulled up here trying to block him in.
{¶41} “Car 40 actually followed him up on the grassy embankment. 43 actually,
I guess, turned.
{¶42} “When I tried to block him in here, his car tires continued to spin. He
started turning this way, I came back out onto Eleventh Street.
{¶43} “That’s when he rammed my cruiser spinning me around 180 degree so I
was facing back westbound.
{¶44} “Q. Were you able to see where the Defendant went?
{¶45} “A. He continued to go eastbound. As soon as I got hit, I got out of my
vehicle and started chasing him on foot.
{¶46} “* * *
{¶47} “What did you see when you exited your car?
{¶48} “A. When I jumped out of my vehicle, I began to chase them. They were
already 50, 60 yards down the road. His - -
{¶49} “Q. Okay, when you say them, who do you mean by them?
{¶50} “A. The Defendant and our other cruisers.
{¶51} “Q. Okay. Was anyone out of their cars at that point?
Stark County, Case No. 2010CA00226 8
{¶52} “A. At that point his car was coming to rest. He had made it through the
fence line with his vehicle, and it was actually sliding back down the hill.
{¶53} “Q. Where did it appear that he was trying to go?
{¶54} “A. He was trying to make it up to Route 30 in the vehicle.
{¶55} “Q. Okay. And you said - - was he, I guess if Route 30 is north, was he
north of the fence toward Route 30 or south of the fence toward Eleventh Street?
{¶56} “A. He was north of the fence line. He went through the fence at several
different points actually because his vehicle had struck a lot of the poles and the chain
link fences that’s there.
{¶57} “Q. Okay. So you saw the vehicle coming back down coming to rest.
{¶58} “What did you see next?
{¶59} “A. I saw the Defendant exit the driver’s side of the vehicle, and he
immediately took off northbound on foot.
{¶60} “Q. Okay. What did you do in response to that?
{¶61} “A. Myself and Officer Premier who was in Car 43, we chased him on foot.
I was still probably another 20 feet behind them where Officers Dendinger and Shackle
took the vehicle.
{¶62} “There was another suspect in the vehicle.
{¶63} “Q. Okay. What color was the suspect who fled?
{¶64} “A. He was a black male.
{¶65} “Q. And what color was the suspect who was in the vehicle?
{¶66} “A. A white male.
{¶67} “Q. Okay. He fled up on Route 30. Where did you go?
Stark County, Case No. 2010CA00226 9
{¶68} “A. We had chased him northbound onto Route 30. I called out that he
was trying to run down Route 30.
{¶69} “He was on the eastbound side running east, and then he jumped the
median which is a cement barrier; and he began running eastbound on the westbound
side.
{¶70} “Q. All right. Did you see any traffic on Route 30 during this time?
{¶71} “A. There wasn’t traffic that I saw or noticed that was coming towards us
when I passed to go across Route 30.
{¶72} “While we were fighting with him on the westbound lane, there was
definitely cars passing us.
{¶73} “Q. Okay. We will get to the west, fighting with him in the westbound lane.
{¶74} “A. Okay.
{¶75} “Q. When he fled up the hill to Route 30, did that give you any safety
concerns at that point?
{¶76} “A. Yes.
{¶77} “Q. What were they?
{¶78} “A. Well, we didn’t know - - we thought that this was an armed individual.
We had a shots fired call at 1547. We didn’t know if anybody was injured at that point.
{¶79} “He had struck several vehicles of ours putting us in danger; and if he
made it up on the highways and got away, we believed that he still had a gun on him at
that point.
{¶80} “Q. Okay. Now, you mentioned that he’s running then down the, would be
the westbound lane against oncoming traffic eastbound?
Stark County, Case No. 2010CA00226 10
{¶81} “A. Correct.
{¶82} “Q. How far did he get?
{¶83} “A. Warner Road is, I believe, four blocks east of Renick. We ended up
fighting him; and when I looked over, we were over Warner Road bridge.
{¶84} “* * *
{¶85} “Q. Okay. Was Officer Premier successful in Tasing the Defendant?
{¶86} “A. No, sir.
{¶87} “Q. What happened?
{¶88} “A. One of the probes missed him, and it went over the top of him; and
then he immediately ran at Officer Premier, and they began to fight.
{¶89} “Q. Okay. Which way was he running when he ran at Officer Premier?
{¶90} “A. Back southbound.
{¶91} “Q. Back southbound.
{¶92} “A. He was actually - -
{¶93} “The Court: Let’s stop a minute.
{¶94} “A. Okay.
{¶95} “The Court: Go ahead.
{¶96} “Q. Okay. How far did he get?
{¶97} “A. I believe Officer Premier was actually in the roadway on Route 30, and
he was up against the center or the far north wall of Route 30.
{¶98} “When Officer Premier missed him, he turned around and immediately
came at him.
{¶99} “So they were almost fighting on Route 30 in the roadway.
Stark County, Case No. 2010CA00226 11
{¶100} “Q. All right. What did you do - - what did you see Officer Premier do?
{¶101} “A. They were, they were connected arm in arm struggling basically.
Looked like they were wrestling each other.
{¶102} “I approached them and tackled both of them to the ground.
{¶103} “Q. And when you got them to the ground, what did you do?
{¶104} “A. We continued to fight. He wouldn’t stop fighting.
{¶105} “We delivered several strikes to his midsection, anywhere we could get
him to stop trying to fight with us.
{¶106} “Q. And where were you in relation to the roadway on Route 30?
{¶107} “A. We were in the - - on the berm of the road.
{¶108} “Q. And were you eventually successful in subduing the Defendant?
{¶109} “A. Yes. After several minutes of fighting, we got him handcuffed.
{¶110} “Q. All right. And where did you put his hands?
{¶111} “A. We put his hands behind him.
{¶112} “Q. Okay.
{¶113} “A. After we - - I mean we struggled with him for several minutes trying to
get him to end the fight.
{¶114} “I believe I had to call back out after I said he had him secured because he
continued to fight. He kept kicking, pushing up, trying to run.
{¶115} “Q. All right. Were you injured as a result of his actions during the arrest
portion?
{¶116} “A. During the arrest, I mean I was sore afterwards. It was a pretty far run,
I was tired.
Stark County, Case No. 2010CA00226 12
{¶117} “Several days after I was sore. I wasn’t sure if it was from the fighting or
from the car accident, but nothing, nothing that kept me from working.”
{¶118} Tr. at 195-197; 199-200; 202-205; 208-211.
{¶119} Officer Shackle of the Canton Police Department testified:
{¶120} “Can you tell us what happened to Car 37, the first car?
{¶121} “A. First cruiser - - this is going to be 30 eastbound.
{¶122} “As the Defendant went off the road here, Car 37 came up here and was
paralleling him when the Defendant came back onto the road, struck the back end of the
cruiser and spun it around.
{¶123} “Q. Okay. Where were you at that point?
{¶124} “A. At that point I was coming back onto the road as well because I had
also gone onto the grassy area.
{¶125} “I had to come down this way to avoid getting hit by this cruiser right here,
Officer Hastings, and then came back out around him.
{¶126} “After he hit him, I came up this way; and that’s when the Defendant struck
me on the rear driver’s side door.
{¶127} “* * *
{¶128} “Q. Okay. After it hit the tree, what did you do?
{¶129} “A. After it hit the tree, I exited my cruiser through the driver’s side door;
and my partner exited the passenger side door.
{¶130} “We saw the driver of the SUV get out and run up onto Route 30, running
eastbound onto Route 30.
Stark County, Case No. 2010CA00226 13
{¶131} “I started to run up that way and then realized there was still a second
person in the car, in the SUV. So I went back to the SUV.
{¶132} “Q. Now, at this time did the fact that you saw a suspect driver fleeing give
you any safety concerns?
{¶133} “A. No.
{¶134} “Q. Did - -
{¶135} “A. Repeat - -
{¶136} “Q. Did the fact that you saw the suspect outside of the car give you any
safety concerns?
{¶137} “A. Did he make me feel more safer or - -
{¶138} “Q. Did he give you concerns for your own safety?
{¶139} “A. Yes, it did.
{¶140} “Q. Okay. What were those concerns?
{¶141} “A. We were advised that it was a shooting, that somebody was shooting
at a house.
{¶142} “We didn’t know where the gun was at in the car, if there was even a gun
in the car. We just were advised there was a shooting, so there was a gun supposed to
be in play here.
{¶143} “Q. All right. And so you saw him going up Route 30 and then you came
back to the cruiser?
{¶144} “A. Right.
{¶145} “Q. Who was the second person in the SUV?
{¶146} “A. That was a passenger, Jami Nosic.
Stark County, Case No. 2010CA00226 14
{¶147} “Q. And what did you do?
{¶148} “A. He stayed in the SUV. He obeyed our commands to get out of the
vehicle, lay down on the ground while we secured him in handcuffs.”
{¶149} Tr. at 291; 293-295.
{¶150} Officer Premier of the Canton Police Department testified:
{¶151} “Q. Okay. Who was behind the suspect vehicle?
{¶152} “A. As the suspect vehicle pulled out, Car 37 which contained Officer
Hastings was actually sitting at this stop sign on Gonder.
{¶153} “He turned eastbound, also, directly behind the suspect vehicle. Then Car
40 was behind Car 37. I was behind Car 40 and Car 43.
{¶154} “Q. Where did you go from there?
{¶155} “A. At that time Officer Hastings initiated his overheads and sirens, and we
all followed suit.
{¶156} “Q. When you say you all followed suit, what do you mean?
{¶157} “A. We all turned on our lights and sirens, also.
{¶158} “The suspect vehicle seemed to be picking up a high rate of speed
eastbound on Sherrick.
{¶159} “* * *
{¶160} “A. Yeah. So as we’re heading off the road, he is going in a northeast
direction, both of us.
{¶161} “I run over the gas pole. I go in the median to follow him. The
Defendant’s vehicle strikes the fence.
Stark County, Case No. 2010CA00226 15
{¶162} “It is a chain link fence that keeps people from getting on the highway from
points except for on ramps and off ramps.
{¶163} “He strikes that fence. The vehicle becomes airborne. He runs over
approximately 60 – 70 feet of that fence.
{¶164} “The vehicle ends up - - there is a bush and there is a hill kind of going up
to 77. That vehicle rides the fence for 60, 70 feet approximately.
{¶165} “Somehow makes it around this bush and stops right here next to a tree
with the passenger door actually right up against a tree.
{¶166} “My vehicle stops about approximately 20 - 30 feet away from the
Defendant’s vehicle.
{¶167} “Car 40 is actually about right here past me. I think they pulled up after
they were struck.
{¶168} “37 stays where it is with Officer Hastings.
{¶169} “At that time I - - do you need me to - -
{¶170} “Q. No, I just wanted to clarify. You mentioned Interstate 77. Is it just - -
{¶171} “A. Oh, did I state 77? I’m so sorry. It is Route 30.
{¶172} “Q. All right. At that point all the vehicles are at a stop?
{¶173} “A. At that time all vehicle are stopped.
{¶174} “Q. Did they go any further at that point.
{¶175} “A. No. None of these vehicles that are pictured here moved anymore
from this point on.
{¶176} “Q. Okay. Why don’t you take your seat. Thank you.
Stark County, Case No. 2010CA00226 16
{¶177} “After the vehicles came to a stop, were you able to see behind you what
anybody did?
{¶178} “A. I didn’t look behind me at all.
{¶179} “Q. What did you do?
{¶180} “A. I exited the vehicle and immediately drew my duty weapon.
{¶181} “Q. And your duty weapon is a revolver - -
{¶182} “A. Yes, it is a semiauto .40 caliber Glock.
{¶183} “Q. It is a gun?
{¶184} “A. Yes.
{¶185} “Q. And what did you do?
{¶186} “A. I got myself in a comfortable shooting position because I expected the
suspect to get out of the vehicle after everything has just transpired and to come out
shooting is what I expected.
{¶187} “Q. And why did you expect that?
{¶188} “A. Because we initially, the call was a shots fired call.
{¶189} “Q. Okay. What happened?
{¶190} “A. I heard other officers - - I actually exited the vehicle. I had my duty
weapon drawn. I heard other officers yelling commands.
{¶191} “I saw the suspect get out of the vehicle and immediately run northbound
up the hill towards Route 30.
{¶192} “* * *
{¶193} “Q. When he began running, did you follow him and where to?
Stark County, Case No. 2010CA00226 17
{¶194} “A. Yes, he ran up onto Route 30. At that time I holstered my duty
weapon and ran up the hill.
{¶195} “He actually ran accrossed [sic] Route 30 which is going to be the
eastbound lane, ran acrossed [sic] it to the divider.
{¶196} “And when I first got up to the edge of the road, I kind of looked to make
sure any traffic was coming. I ran across the road.
{¶197} “I noticed that he - - I didn’t make it across the road. He jumped the
divider first, and he disappeared; and I drew my duty weapon again.
{¶198} “* * *
{¶199} “Q. Let me stop you. While this chase is going on down Route 30, were
there cars coming?
{¶200} “A. I did see some cars coming from the on - - going eastbound.
{¶201} “At the time we were in the westbound lane when we were running down
the middle of the divider, there was no - - or the middle lane, there was no cars at that
time, that period of time.
{¶202} “Q. All right. Now, you mentioned he gets to the overpass of Warner
Road.
{¶203} “How high up is that overpass?
{¶204} “A. It appeared to be 25 to 30 feet.
{¶205} “Q. So it’s, to Warner Road it is 25 to 30 feet.
{¶206} “A. Yes.
{¶207} “Q. All right. What did the Defendant do at that point?
Stark County, Case No. 2010CA00226 18
{¶208} “A. The Defendant appeared to be running towards the side as if he was
going to jump.
{¶209} “Q. And what did you do in response to that?
{¶210} “A. At that time I drew my Taser which I carry in a leg holster on my left
side. I drew it with my left hand and fired. I missed the Defendant.
{¶211} “Q. So the Ladies and gentlemen know, what is a Taser?
{¶212} “A. The Taser is just an electronic device that incapacitates your muscles
and sends electrical charge into your body to cut the transmission of signals to your
muscles and kind of make them freeze up.
{¶213} “Q. Have you been trained on the Taser?
{¶214} “A. Yes.
{¶215} “Q. And do you know if the Taser is lethal or deadly force or something
less?
{¶216} “A. It is less than lethal.
{¶217} “Q. Okay. After you miss from firing the Taser, what happened?
{¶218} “A. At that time the Defendant turned around as if he knew the sound - -
the Defendant turned around and began to, you know, swing wildly at myself.
{¶219} “Q. How close were you to him at that point?
{¶220} “A. By that time, because when I shot the Taser I was still running. I shot
the Taser and I kept coming. Then he turned around and then we were hand to hand.
{¶221} “Q. What did he do to you?
{¶222} “A. We kind of clinched up. He was swinging like, you know, overhand.
Stark County, Case No. 2010CA00226 19
{¶223} “Him and I, you know, I struck him several times trying to get him to the
ground; and at that time I kind of felt a big blast from behind where both of us had went
over to the ground, and that was when Officer Hastings kind of tackled the group; and
we both went down to the ground. All three of us actually went down on the ground.
{¶224} “Q. Okay. Where were you when the struggle began?
{¶225} “A. Right in the middle lane of Route 30.
{¶226} “Q. And how did you strike him? How did you strike the Defendant?
{¶227} “A. I punched him in the face and, you know, tried to hit him in the chest
as much as I could, what I could get without, you know, with his arms being in front of
me.
{¶228} “Q. And what was your purpose in doing that?
{¶229} “A. I was trying to get him under control as quick as possible knowing that
we were going to be fighting in the middle of a highway, a 3-lane highway.
{¶230} “Q. All right. You mentioned then you are tackled by Officer Hastings and
you all go down to the ground.
{¶231} “A. Yes.
{¶232} “Q. What happened next?
{¶233} “A. The Defendant did not, you know, just kept resisting. We could not get
cuffs on him. We were taking elbows and everything else that he could put out.
{¶234} “You know, all we could do at that time because of being exhausted from
running, we were - - I could just lay on him and try to get him, hold him down onto the
ground to get the cuffs on him.
Stark County, Case No. 2010CA00226 20
{¶235} “Q. All right. Again, where were you at this point when you were
attacked?
{¶236} “A. Still in the middle lane.
{¶237} “Q. Did the - - what eventually happened then?
{¶238} “A. We eventually got him cuffed. We had to physically bring him to the
side lane. I believe after we actually had him to the side - -
{¶239} “Q. Let me stop you. Side lane by - - what do you mean by side lane ?
{¶240} “A. I’m sorry. It is actually the curb lane on the north, the furthest north
side of the highway.
{¶241} “Q. So the curb next to the right-hand lane?
{¶242} “A. Yeah.
{¶243} “Q. Going westbound in this direction. Okay. What did you do then?
{¶244} “A. We actually - - at that time I actually had, my Taser was still on my - - it
was actually stuck on my finger. During the whole fight it was going off, but it was on
my hand.
{¶245} “Q. Okay.
{¶246} “A. It wasn’t actually being gripped by my hand. It was actually stuck over
my gloves on my hand.
{¶247} “Q. Okay.
{¶248} “A. You know, we got him in the cuffs. I was able to pull that back off of
my finger and reholster.
{¶249} “Q. What happened to the Defendant next?
Stark County, Case No. 2010CA00226 21
{¶250} “A. We were able to cuff him and get him back, get him - - you know, he
was very obstinate the whole time.
{¶251} “We were able to get him to his feet and walk him back across 30.
{¶252} “At that time, you know, like I said, there was cars actually coming in either
direction at that time. I couldn’t tell you how many, but we had to watch for them and try
to flash our lights to slow them down.
{¶253} “Q. Now, you reached the median. Did you make it over the median
okay?
{¶254} “A. To get over the median was difficult with him cuffed. He did not want
to go over. He was leaning to either side making it very hard for us to get him back to
the vehicle.
{¶255} “Q. Now, who was with you at this point other than the Defendant?
{¶256} “A. It was, it was myself, Officer Hastings, and then Officer Heslop had
came up because, you know, Officer Hastings did state on the radio that the suspect
was still fighting and we could not get him in cuffs.
{¶257} “* * *
{¶258} “Q. Now, did you suffer any injuries that night?
{¶259} “A. Yes. I had a - - after I got the suspect secured in the vehicle, I noticed
that I had a tightness in my right hand.
{¶260} “When I took my glove off, it was swollen.
{¶261} “Q. All right. Did you go to the hospital for that?
{¶262} “A. Yes.
{¶263} “Q. Where did you go?
Stark County, Case No. 2010CA00226 22
{¶264} “A. Aultman.
{¶265} “Q. And what was the result of your hospital visit?
{¶266} “A. It was a strain.
{¶267} “Q. And did the swelling eventually subside?
{¶268} “A. Yeah, later on that day.”
{¶269} Tr. at 462-465; 468-474; 476-482; 488.
{¶270} Based upon the above, we find there is ample, competent, credible
evidence to support Appellant’s convictions for three counts felonious assault and
resisting arrest, and the jury did not lose its way in finding Appellant guilty of the
charges. The evidence was sufficient for the jury to find Appellant used his vehicle as a
deadly weapon causing or attempting to cause the cruiser occupants physical harm.
Appellant’s first assignment of error is overruled.
II.
{¶271} Appellant’s second assignment of error argues he was denied the
effective assistance of counsel. Appellant asserts his counsel’s overall performance in
representing him fell below the acceptable standard. Specifically, Appellant claims his
trial counsel failed to obtain the Bill of Particulars despite having requested the same
from the State, was not prepared for trial, missed two pretrials, and his overall
performance fell below the objective standard for reasonableness.
{¶272} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry in whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
Stark County, Case No. 2010CA00226 23
by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838,
122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶273} In determining whether counsel's representation fell below an objective
standard of reasonableness, judicial scrutiny of counsel's performance must be highly
deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties
inherent in determining whether effective assistance of counsel was rendered in any
given case, a strong presumption exists that counsel's conduct fell within the wide range
of reasonable, professional assistance. Id.
{¶274} In order to warrant a reversal, the appellant must additionally show he was
prejudiced by counsel's ineffectiveness. This requires a showing counsel's errors were
so serious as to deprive the defendant of a fair trial; a trial whose result is reliable.
Strickland 466 U.S. at 687, 694, 104 S.Ct. at 2064; 2068. The burden is upon the
Appellant to demonstrate that there is a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different. Id.;
Bradley, supra at syllabus paragraph three. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Strickland, supra; Bradley, supra.
{¶275} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697. Accordingly,
we will direct our attention to the second prong of the Strickland test.
Stark County, Case No. 2010CA00226 24
{¶276} Appellant has not satisfied either prong of Strickland. As set forth in our
analysis and disposition of Appellant’s first assignment of error, the evidence presented
at trial was sufficient to convict Appellant of the charges, and Appellant has not
demonstrated that but for counsel’s presumed errors the outcome of the trial would
have been otherwise. Appellant conclusively presumes but for Appellant’s alleged
errors he would not have been convicted of the charges, and has not demonstrated had
counsel been more adequately prepared or had counsel received the Bill of Particulars,
the outcome of the trial would have been different.
{¶277} Based upon the foregoing, Appellant's second assignment of error is
overruled.
III.
{¶278} In the third assignment of error, Appellant maintains the trial court’s
imposition of consecutive sentences is an abuse of discretion.
{¶279} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, the Supreme
Court of Ohio set forth the following two-step approach in reviewing a sentence:
{¶280} “In applying Foster [State v., 109 Ohio St.3d 1, 2006–Ohio–856] to the
existing statutes, appellate courts must apply a two-step approach. First, they must
examine the sentencing court's compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed
under an abuse-of-discretion standard.”
Stark County, Case No. 2010CA00226 25
{¶281} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶282} We note although in Oregon v. Ice (2009), 555 U.S. 160, the United States
Supreme Court upheld the constitutional validity of an Oregon statute similar to Ohio's
pre- Foster sentencing statutes, the Supreme Court of Ohio in State v. Hodge, 128 Ohio
St.3d 1, 2010–Ohio–6320, held the Oregon case did not revive the Foster statutes, and
trial courts are not obligated to engage in judicial fact-finding prior to imposing
consecutive sentences.
{¶283} At the sentencing hearing in this matter, the Court stated on the record,
{¶284} “Ah, but as I hand down this sentence, I will say for the record that, Mr.
Latimore, as I watched this testimony throughout the trial, I’m not sure that you grasp
the concept that when police officers leave their house every night, they don’t know
whether they are going to make it home or not.
{¶285} “It’s a serious job. Carries a lot of risk.
{¶286} “And what I watched in this trial was a conscious disregard by you. I
mean, I watched you drive into vehicles of police that were chasing you; I watched you
run through stop signs, where someone innocent could have gotten killed. At no point
did you stop.
{¶287} “And when I balance your conduct in this courtroom, your conduct, ah,
disrespect - - and I’ve made it very clear in my courtroom, anybody that disrespects
police officers, there is going to be a price to pay.
Stark County, Case No. 2010CA00226 26
{¶288} “So I’m going to issue the following sentence: On count one, felonious
assault, felony of the first degree, I’m going to sentence you to a prison term of five
years.
{¶289} “Count two, felonious assault, felony of the first degree, I’m going to
sentence you to prison term of five years, to be served consecutive with count one.
{¶290} “Count three, felonious assault, felony of the first degree, I’m going to
sentence you to a prison term of five years, consecutive with counts one and two.
{¶291} “Count four, the felonious assault, you were found not guilty.
{¶292} “Count five, failure to comply with an order or signal of a police officer, I’m
gonna, ah, sentence you to a period of two years, consecutive with one, two and three.
{¶293} “Count six, resisting arrest, ah, 60 days, concurrent with count one.
{¶294} “So I want to make it very clear to you you are going to be incarcerated for
a period of 17 years.
{¶295} “I’m also going to order restitution to the Canton Police Department of
$14,027.97.
{¶296} “Now, I also have to advise you of what’s called post-release control.
These four, or these three felonious assaults carry a mandatory post-release control of
five years.”
{¶297} Tr. at 9-11.
{¶298} Upon review, Appellant’s sentence is within the guidelines and statutory
parameters, and the trial court did not abuse its discretion in imposing consecutive
sentences. The third assignment of error is overruled.
Stark County, Case No. 2010CA00226 27
{¶299} Appellant’s conviction and sentence in the Stark County Court of Common
Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00226 28
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JAMES LATIMORE :
:
Defendant-Appellant : Case No. 2010CA00226
For the reasons stated in our accompanying Opinion, Appellant’s conviction and
sentence in the Stark County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/153024/ | 615 F.3d 391 (2010)
Gene Irving GARLAND, Petitioner-Appellant,
v.
Warden Keith ROY, Respondent-Appellee.
No. 09-40735.
United States Court of Appeals, Fifth Circuit.
August 13, 2010.
*393 Gene Irving Garland, Jr., Texarkana, TX, pro se.
Michael Wayne Lockhart, Asst. U.S. Atty., Beaumont, TX, for Roy.
Before KING, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Pro se petitioner Gene Irving Garland appeals the dismissal of his habeas corpus petition brought pursuant to 28 U.S.C. § 2241. In that petition he argues that he is entitled to release in light of United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), which held that the money-laundering statute's, 18 U.S.C. § 1956(a)(1), term "proceeds" was ambiguous and as a result, in certain circumstances, must be read to mean "profits." Santos clearly applies retroactively to Garland's convictions at issue in this case. United States v. McPhail, 112 F.3d 197, 199 (5th Cir.1997). Garland contends that, under Santos, he was wrongfully convicted of multiple nonexistent money laundering offenses because the indictment and the jury instructions did not require the Government to prove that he used "profits" to pay "returns" to investors in his illegal pyramid scheme. He also argues that his petition satisfies 28 U.S.C. § 2255's "savings clause" and thus can be brought under § 2241. We agree that Garland's petition states a claim falling within § 2255's "savings clause" and thus he may proceed under § 2241. Therefore, we REVERSE the dismissal and REMAND for further proceedings consistent with this opinion.
BACKGROUND
"28 U.S.C. § 2255 . . . is the primary means under which a federal prisoner *394 may collaterally attack the legality of his conviction or sentence." Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.2001). "However, § 2241 may be utilized by a federal prisoner to challenge the legality of his or her conviction or sentence if he or she can satisfy the mandates of the so-called § 2255 `savings clause.'" Id. at 901.
The "savings clause" states:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e).
This court has interpreted § 2255(e) to mean that there are three "factors that must be satisfied for a petitioner to file a § 2241 petition in connection with § 2255's savings clause." Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (citing Reyes-Requena, 243 F.3d 893). They are: (1) the petition raises a claim "that is based on a retroactively applicable Supreme Court decision"; (2) the claim was previously "foreclosed by circuit law at the time when [it] should have been raised in petitioner's trial, appeal or first § 2255 motion"; and (3) that retroactively applicable decision establishes that "the petitioner may have been convicted of a nonexistent offense." Reyes-Requena, 243 F.3d at 904. See also Christopher v. Miles, 342 F.3d 378, 382 (5th Cir.2003).
The petitioner bears the burden "to demonstrate that the § 2255 remedy is inadequate or ineffective." Christopher, 342 F.3d at 382. He must "com[e] forward with evidence . . . show[ing]" each element of the Reyes-Requena test. Wesson v. U.S. Penitentiary, Beaumont, Tex., 305 F.3d 343, 347 (5th Cir.2002). Therefore, before allowing the petitioner to proceed under § 2241, "[w]e must examine the merits of the petitioner's claim to determine whether" the Reyes-Requena factors are satisfied. Christopher, 342 F.3d at 383. Accordingly, in reviewing the instant dismissal, we need to become familiar with not only the background of Garland's habeas petition, but also the underlying convictions that Garland claims may have been for non-criminal conduct.
The challenged convictions consist in relevant part of 52 counts of money laundering pursuant to 18 U.S.C. § 1956(a)(1)(A)(I). In addition, those money-laundering charges were predicated upon Garland's commission of the unlawful acts described in 62 counts of mail fraud pursuant to 18 U.S.C. § 1341 and one count of securities fraud pursuant to 15 U.S.C. §§ 77q(a) and 77x.
The money-laundering statute under which Garland was convicted established four essential elements of the crime: (1) that he knew "that the property involved in a financial transaction represent[ed] the proceeds of some form of unlawful activity" (emphasis added); (2) that he "conduct[ed] or attempt[ed] to conduct such a financial transaction"; (3) that the financial transaction "in fact involve[d] the proceeds of [the] specified unlawful activity" (emphasis added); and (4) that the transaction was undertaken with "the intent to promote the carrying on of [a] specified unlawful activity." 18 U.S.C. § 1956(a)(1)(A)(I). At the time Garland was convicted, the statute did not define the meaning of the term "proceeds."[1]
*395 The indictment and the jury instructions tracked the language of the money-laundering statute by describing Garland's alleged money laundering as his knowing use of the "proceeds" of his pyramid scheme to pay sums falsely described as earnings to his investor-victims in order to further the operations of his scheme.[2] Thus, neither the indictment nor the jury instructions required the Government to prove that Garland transacted in "profits" of his unlawful activities, rather than "gross receipts," in order to convict him of money laundering. In fact, it appears that the alleged transactions underlying the money-laundering charge could not have involved "profits," as the only allegation was that Garland took "proceeds" from his criminal activities and used it to maintain the criminal enterprise.
As it explains on appeal and is reflected in the indictment, the Government proved that Garland engaged in securities fraud and at least one count of mail fraud by alleging that he conducted a "pyramid scheme" involving the sale of fraudulent securities. In other words, based on the indictment, the Government alleged that using the mails Garland sold fraudulent securities and then used the proceeds from those sales to distribute money to individuals who had previously bought his "securities," under the guise that this was a return on the individuals' initial investments, thereby encouraging their continued investment in his fraud. See 15 U.S.C. § 77q(a) (stating that securities fraud occurs when "any person in the offer of sale or any securities" uses the "mails, directly or indirectly . . . to employ any device, scheme or artifice to defraud; or . . . to obtain money or property by means of any untrue statement of a material fact or . . . to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser");[3] 18 U.S.C. § 1341 (stating that mail fraud occurs when one "places in any post office or authorized depository for mail matter, any matter or thing whatever. . . or knowingly causes to be delivered by mail . . . any such matter or thing" that was part of a "devised or intend[ed] . . . scheme or artifice to defraud or for obtaining money or property by means of false or fraudulent pretenses . . ."). In this manner, it is possible that the same payout of proceeds as "returns" to investors formed the basis of the mail and securities fraud convictions, as well proved the element of the money-laundering charge that *396 Garland transacted in "proceeds" of the underlying unlawful activity.
Following his convictions, Garland filed two unsuccessful habeas petitions. His present petition pursuant to 28 U.S.C. § 2241 argues that the Supreme Court's interpretation of the money-laundering statute in United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), reveals retroactively that Garland was convicted of nonexistent crimes of using "receipts" rather than "profits" from his pyramid scheme to further the scheme's operations. The combination of the plurality and concurring opinions in Santos holds that in certain circumstances, elaborated on below, "proceeds" must be defined as "profits" instead of "gross receipts." 128 S.Ct. at 2034 n. 7 (Stevens, J., concurring in the judgment).[4]
The district court, which adopted without alteration the recommendations of the magistrate judge, dismissed Garland's petition on two grounds. First, the magistrate judge concluded that Santos's narrow definition of "proceeds" as "profits" is limited to the specific facts of that case, under which the petitioners were convicted of money laundering stemming from the unlawful activity of running an illegal gambling operation. Thus, the magistrate judge reasoned, Santos does not apply to Garland's conviction and therefore he was not convicted of a nonexistent offense in light of that case. Second, the magistrate judge stated that any claim that Garland could have raised in light of Santos was not previously "foreclosed," as this circuit has never specifically held that "proceeds" should be defined as "receipts" rather than "profits." Garland's objections on both points were overruled.
STANDARD OF REVIEW
"This Court reviews de novo a district court's dismissal of a section 2241 petition on the pleadings."[5]Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.2000).
DISCUSSION
We consider each of the Reyes-Requena factors in turn. We conclude that Garland's petition satisfactorily establishes each factor and therefore his claim may proceed under § 2241.
1. Claim based on a retroactively applicable Supreme Court decision
There can be no question that Garland's petition satisfies the first Reyes-Requena factor, i.e. that his claim is based on a retroactively applicable Supreme Court decision. The Government argues that Santos should not apply retroactively because "the Supreme Court did not make its holding retroactive." Government Br. 15 (emphasis in original). However, as Garland argues, our case law establishes that new decisions interpreting federal statutes that substantively define criminal offenses automatically apply retroactively and Santos is an exemplar of such a decision. See United States v. McPhail, 112 F.3d 197, 199 (5th Cir.1997).
In Davis v. United States, the Supreme Court held that a petitioner could collaterally attack his conviction based on a decision issued "after [the petitioner's] conviction was affirmed" if that decision established that the "conviction and punishment *397 are for an act that the law does not make criminal." 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). This court has interpreted Davis to hold that "substantive, non-constitutional decision[s] concerning the reach of a federal statute . . . do[] not implicate the retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989),[6] [and instead] appl[y] retroactively to cases on collateral review." United States v. McPhail, 112 F.3d at 199 (citing Davis, 417 U.S. at 341-47, 94 S.Ct. 2298; United States v. McKie, 73 F.3d 1149, 1153 (D.C.Cir.1996); United States v. Dashney, 52 F.3d 298, 299 (10th Cir.1995)). McPhail further explained that a decision is "substantive, non-constitutional[,] . . . concerning the reach of a federal statute," if it "articulates the substantive elements that the government must prove to convict a person charged under the statute." Id. By so doing, that decision "explains what conduct is, and has always been, criminalized by the statute" and thus "it applies retroactively to cases on collateral review" without triggering the Teague analysis. Id. Accordingly, the McPhail panel concluded that a petitioner could collaterally attack his conviction for "using" a firearm in furtherance of his crime based on Bailey v. United States, 516 U.S. 137, 147-51, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which was handed down subsequent to his conviction becoming final, and which established that the Government must "present evidence sufficient to show active employment of the firearm" in order to sustain such a conviction. McPhail, 112 F.3d at 199.
In light of McPhail, Santos is a prime example of a Supreme Court decision retroactively applicable to cases pending on collateral review. Santos examines the meaning of the word "proceeds" in the money-laundering statute, 18 U.S.C. § 1956. It determines that, in certain circumstances, "proceeds" cannot be understood as "gross receipts," but rather must be defined as "profits." See Santos, 128 S.Ct. at 2034 n. 7 (Stevens, J., concurring in the judgment). Thus, for money laundering falling within the case's holding, Santos "fill[s] gaps in [the] statute" by "defin[ing][a] potentially ambiguous statutory term[]." Id. at 2031. Just as in McPhail, Santos construed the reach of a federal statute more narrowly than its broadest possible meaning, thus requiring the Government to prove additional facts in order to convict Garland of money laundering. Accordingly, Santos applies retroactively. It is not barred from having retroactive effect upon cases on collateral review under the Teague analysis because it is a substantive, non-constitutional decision concerning the reach of a federal statute.
2. Claim was previously foreclosed by circuit law
Likewise, as Garland argues and the Government appears to concede, his present claim was "foreclosed" under our pre-Santos cases. See Government Br. 15. Thus, he satisfies the second Reyes-Requena factor.
Our cases have never explicitly defined the meaning of "foreclosed by circuit law" as used in this Reyes-Requena factor. Nonetheless, we have previously adopted the ordinary meaning of "foreclosed""exclude[d]" by prior controlling case law. 6 *398 Oxford English Dictionary 47 (2d ed.1989). See Garrido-Morato v. Gonzales, 485 F.3d 319, 322 n. 1 (5th Cir.2007); United States v. Cathey, 259 F.3d 365, 368 (5th Cir.2001). We have consistently held that if an argument falls within the scope of, and is excluded by, a prior holding of a controlling case, it is foreclosed by that case. The court need not have specifically considered and rejected the exact claim for it to be foreclosed, as long as the breadth of a prior holding was meant to encompass and preclude the argument.
For instance, in Garrido-Morato we held that circuit case law "foreclosed" the defendant's claim that her conviction "for harboring aliens should not bar her from discretionary relief" from deportation. 485 F.3d at 322 n. 1 (citation and quotation marks omitted). Individuals are barred from such discretionary relief if they have committed an "aggravated felony." See id. A prior case in this circuit had "held that the parenthetical `related to alien smuggling' [in the statute defining aggravated felonies] is descriptive and not limiting." Id. Clearly, harboring aliens, although not part of the process of importing or exporting aliens, could be described as relating to alien smuggling. See Black's Law Dictionary 1516 (9th ed.2009) (defining "smuggling" as "[t]he crime of importing or exporting illegal articles"). Therefore, we concluded that our case law excluded the defendant's narrower interpretation of "aggravated felony" as not including harboring aliens; Garrido-Morato was "foreclosed" from arguing that she was entitled to discretionary relief on the basis that she had not committed an aggravated felony. Id.
Similarly, in Cathey, 259 F.3d at 368, we held that Cathey's argument"that the district court's sentence, based on its finding that [another individual's] death resulted from [Cathey's] distribution of heroin, violated [Cathey's] right to a jury"was "foreclosed" by United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). In Watts, the Supreme Court held "that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Cathey, 259 F.3d at 368 (quotation marks omitted) (quoting Watts, 519 U.S. at 157, 117 S.Ct. 633). The Supreme Court had established a general rule that encompassed, rejected and thereby "foreclosed" the defendant's specific argument.
Under this definition, Garland's claim was previously foreclosed by circuit case law. In United States v. Allen, a panel of this court wrote, "[f]raudulent scheme[s] produce[] proceeds, at the latest when the scheme succeeds in disgorging the funds from the victim and placing them into the control of the perpetrators." 76 F.3d 1348, 1361 (5th Cir.1996). The panel then used this definition to conclude that the defendants could be convicted of money laundering because the money "left the control" of the victim and "came into the possession" of the defendants. Id. The court indicated it did not need to determine that the funds were the profits of the unlawful activity; it was sufficient that the Government demonstrated that the defendant had control over the funds. Id. See also United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.1994) (stating that "[t]he only permissible inference from the government's proof is that [the defendant] was in possession of the proceeds of unlawful activity," when all the Government had shown was that the defendant had control over money obtained through the sale of illegal drugs). In this manner, this court previously held that the term "proceeds" was defined by whether the defendant had control over the derivatives *399 of an unlawful activity, not the nature of those derivatives, i.e., whether the money or property represented the "gross receipts" or "profits" of the fraud. "We are bound by the decisions of prior panels." United States v. Rose, 587 F.3d 695, 705 (5th Cir.2009). Therefore, as Allen predated Garland's conviction and remained controlling case law until Santos, Garland was previously foreclosed by circuit case law from raising his instant claim.
3. Claim establishes petitioner may have been convicted of a nonexistent offense
Garland argues that he satisfies the third Reyes-Requena factor because the four-Justice plurality opinion in Santos held that "proceeds" must always be defined as "profits." Therefore, because his trial court in its charge to the jury defined "proceeds" as "any property" derived from the specified unlawful activity, he may have been convicted based on a set of facts that did not fall within the statute. He acknowledges that in Santos Justice Stevens wrote a narrower concurrence in the judgment, providing the necessary fifth vote for a majority of the Court. However, Garland argues that we should ignore Justice Stevens' analysis.
While we agree with Garland's ultimate conclusion that he satisfies the final Reyes-Requena element, we cannot agree with his analysis of Santos's holding. "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). As a result and as was conceded by the Santos plurality, Justice Stevens' concurrence controls and therefore determines the scope of the Court's holding. See 128 S.Ct. at 2031 (plurality opinion) ("Since his vote is necessary to our judgment, and since his opinion rests upon the narrower ground, the Court's holding is limited accordingly." (citing Marks, 430 U.S. at 193, 97 S.Ct. 990)).
A.
We begin our analysis of whether Garland's claim is sufficient to establish that he may have been convicted of a nonexistent offense by determining the holding of the Court in light of the splintered Santos decision. Although, as dictated by Marks, our conclusion will ultimately depend on the ways in which Justice Stevens' holding narrowed that of the plurality, we begin by establishing the underlying principles on which he and the four member plurality evidently agreed.
First, as Justice Scalia writing for the plurality explained, at the time the Court rendered its decision, the term "proceeds" in the money-laundering statute was undefined and its meaning ambiguous. "The federal money[-]laundering statute does not define `proceeds.'" Santos, 128 S.Ct. at 2024 (plurality opinion). While, typically, "[w]hen a term is undefined, we give it its ordinary meaning," here "`[p]roceeds' can mean either `receipts' or `profits.'" Id. "Both meanings are accepted, and have long been accepted, in ordinary usage." Id. "`Proceeds,' moreover, has not acquired a common meaning in the provisions of the Federal Criminal Code." Id. "Most leave the term undefined." Id. Therefore, this "ordinary meaning" method of statutory construction was unavailing. "Under either of the word's ordinary definitions, all provisions of the federal money-laundering statute are coherent; no provisions are redundant; and the statute *400 is not rendered utterly absurd." Id. at 2025. Accordingly, "[f]rom the face of the statute, there is no more reason to think that `proceeds' means `receipts' than there is to think that `proceeds' means `profits.'" Id. at 2025. See also id. at 2031 (Stevens J., concurring in the judgment) ("When Congress fails to define potentially ambiguous statutory terms, it effectively delegates to federal judges the task of filling gaps in a statute. Congress has included definitions of the term `proceeds' in some criminal statutes, but it has not done so in 18 U.S.C. § 1956, the money-laundering statute at issue in this case." (citations and footnote omitted)).
Second, if "proceeds" were to be defined as "receipts" rather than "profits," the money-laundering statute would be left open to what a majority of the Court characterized as the "merger problem." Santos, 128 S.Ct. at 2026 (plurality opinion) ("If we accepted the Government's invitation to speculate about congressional purpose, we would also have to confront and explain the strange consequence of the `receipts' interpretation, which respondents have described as a `merger problem.'"); id. at 2033 (Stevens, J., concurring in the judgment) (stating that defining "proceeds" as "receipt" "runs squarely into what can be characterized as the `merger' problem."). The plurality explained the meaning of "merger problem" by relating the phrase to the specific facts of Santos. The "jury found Santos guilty of . . . one count of running an illegal gambling business" and "two counts of money laundering" based upon his "payments to runners, winners and collectors" involved in the gambling business. Id. at 2023 (plurality opinion). See also id. at 2033 (Stevens, J., concurring in the judgment). The plurality concluded that these dual charges resulted in the "merger problem" because:
If "proceeds" meant "receipts," nearly every violation of the illegal-lottery statute would also be a violation of the money-laundering statute, because paying a winning bettor is a transaction involving receipts that the defendant intends to promote the carrying on of the lottery. Since few lotteries, if any, will not pay their winners, the statute criminalizing illegal lotteries would "merge" with the money-laundering statute.
Id. at 2026 (plurality opinion) (citation omitted). Moreover, the plurality continued, "[t]he merger problem is not limited to lottery operators." Id. "For a host of predicate crimes, merger would depend on the manner and timing of payment for the expenses associated with the commission of the crime." Id. "Few crimes are entirely free of cost, and costs are not always paid in advance." Id. "[A]ny wealth-acquiring crime with multiple participants would become money-laundering when the initial recipient of the wealth gives his confederates their shares." Id. at 2026-27. Thereby, corresponding to what may have occurred in Garland's case, the plurality explained that the "merger problem" resulted any time the definition of "proceeds" as "receipts" enabled the money-laundering charge to rely upon the same "transaction" as the "predicate crime." Justice Stevens later adopted this understanding of the merger problem in his concurrence. Id. at 2032-33 (Stevens, J., concurring in the judgment)
As a result of these underlying premises shared by Justice Stevens and the plurality, both agreed that, at least in certain circumstances, "proceeds" must be defined as "profits" rather than "receipts." The plurality would have held that "[b]ecause the `profits' definition of `proceeds' is always more defendant-friendly than the `receipts' definition, the rule of lenity dictates that it should be adopted." Santos, 128 S.Ct. at 2025 (plurality opinion). However, *401 limiting the scope and reasoning of this holding, Justice Stevens' concurrence dictates that the definition of "proceeds" in the money-laundering statute must be determined via a bifurcated analysis. Santos, 128 S.Ct. at 2034 n. 7. (Stevens, J., concurring the judgment). First, a court must determine whether, when "proceeds" are defined as "gross receipts" rather than "profits," the defendant would face the "merger problem." Id. at 2033-34 & n. 7. If so, then, consistent with the plurality's decision, the rule of lenity governs and "proceeds" must be defined as "profits"; and the court need not proceed to the second step of Justice Stevens' analysis. Id. at 2034 n. 7. However, if, instead, there is no "merger problem," Justice Stevens' analysis, unlike the plurality, directs that a court must look to the legislative history of the money-laundering statute to determine how to define "proceeds." Id. A court does so with the default presumption that "proceeds" should be defined as "gross receipts," unless the legislative history affirmatively supports interpreting "proceeds" to mean "profits." Id. at 2031-34.
Our understanding of Justice Stevens' limits on and disagreements with the plurality's rule begins and ends with Justice Stevens' closing footnote, the only place in his short concurrence in which Justice Stevens attempted to lay out an independent holding rather than his partial disagreements with the plurality and the dissent. There, Justice Stevens responded to what the plurality characterized as its effort to determine the "`stare decisis effect'" of the splintered Santos decision. Santos, 128 S.Ct. at 2034 n. 7 (Stevens, J., concurring in the judgment) (quoting id. at 2031 (plurality opinion)). The plurality had argued that, based on Justice Stevens' concurrence, the holding of Santos is that "`proceeds' means `profits' when there is no legislative history to the contrary." Id. at 2031 (plurality opinion). Justice Stevens rejected this interpretation. Id. at 2034 n. 7 (Stevens, J., concurring in the judgment). Instead, he explained that his concurrence in the judgment, "rests on [1] my conviction that Congress could not have intended the perverse result that the dissent's rule [that `proceeds' should always be defined as `receipts'] would produce if its definition of `proceeds' were applied to the operation of an unlicensed gambling business. [2] In other applications of the statute not involving such a perverse result, I would presume that the legislative history summarized by Justice Alito [who dissented arguing that the legislative history of the money-laundering statute demonstrates that `proceeds' should always be defined as `gross receipts'] reflects the intent of the enacting Congress." Id. (citing id. at 2035-36 & n. 1 (Alito, J., dissenting)).
Just above that footnote, Justice Stevens explained what he meant by "the perverse result" by relating that phrase to the facts of Santos. He wrote:
As the plurality notes, there is "no explanation for why Congress would have wanted a transaction that is a normal part of a crime it had duly considered and appropriately punished elsewhere in the Criminal Code [by criminalizing gambling], to radically increase the sentence for that crime [by enabling the same conduct to constitute money laundering]." This conclusion dovetails with what common sense and the rule of lenity would require. Faced with both a lack of legislative history speaking to the definition of "proceeds" when operating a gambling business is the "specified unlawful activity" and my conviction that Congress could not have intended the perverse result that would obtain in this case under Justice Alito's opinion [arguing that "proceeds" always means "receipts," *402 which would have allowed for such dual convictions for the same transaction], the rule of lenity may weigh in the determination. And in that respect the plurality's opinion [defining "proceeds" as "profits"] is surely persuasive.
Id. at 2033-34 (citation omitted) (quoting id. at 2027 (plurality opinion)). Thus, according to Justice Stevens, the "perverse result" is when a defendant could be punished for the same "transaction" under the money-laundering statute as well as under another statute, namely the statute criminalizing the "specified unlawful activity" underlying the money-laundering charge. The "perverse result" and what the plurality and Justice Stevens called the "merger problem" are one and the same. See United States v. Kratt, 579 F.3d 558, 562 (6th Cir.2009) (using "merger problem" and "perverse result" interchangeably); United States v. Bucci, 582 F.3d 108, 124 (1st Cir.2009) (same).
Justice Stevens' concurrence also indicated that he understood Justice Alito to have concluded that the legislative history indicates "proceeds" should always be defined as "gross receipts." Justice Alito's analysis, in the portion of his dissent cited in Justice Stevens' explanatory footnote, argued that the evident congressional intent requires "proceeds" to always be defined as "receipts." Santos, 128 S.Ct. at 2035-36 & n. 1 (Alito, J., dissenting). Specifically, in the cited section, Justice Alito argued that the legislative history of the ratification of the United Nations Convention Against Transnational Organized Crime is "instructive" as to the congressional intent in passing the money-laundering statute and indicates that "proceeds... mean[s] any property derived from or obtained, directly or indirectly, through the commission of an offence." Id. at 2036 (quotation marks omitted) (quoting United Nations Convention Against Transnational Organized Crime, Art. 2(e), Nov. 15, 2000, 2225 U.N.T.S. 209). Further, Justice Stevens stated, "As Justice Alito rightly argues, the legislative history of [18 U.S.C.] § 1956 makes it clear that Congress intended the term `proceeds' to include gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales." Id. at 2032 (Stevens, J., concurring in the judgment).
In sum, Justice Stevensthrough his footnote explicating his conclusion and the remainder of his opinion clarifying the meaning of that footnoteturned the plurality's rule, that "proceeds" must always be defined as "profits," into a two-part holding. See Santos, 128 S.Ct. at 2034 n. 7 (Stevens, J., concurring the judgment). First, he stated that he was joining the plurality's rule, that the rule of lenity dictates that "proceeds" must be defined as "profits" in cases where defining "proceeds" as "gross receipts" would result in the "perverse result" of the "merger problem." Id. In other circumstances, however, he could not agree with the plurality that "proceeds" must have one uniform meaning, "profits." Instead, second, he stated that "in other applications of the statute not involving such a perverse result," he would start from the presumption that "proceeds" should be defined as "gross receipts," but he would look to the legislative history of the money-laundering statute, 18 U.S.C. § 1956, to challenge this presumption. Santos, 128 S.Ct. at 2034 n. 7 (Stevens, J., concurring the judgment). Only if he could locate adequate legislative history to rebut this presumption, indicating that "proceeds" should be defined as "profits," would he conclude that Congress meant for the narrower definition to apply. Id.
The other circuits that have analyzed Santos and Justice Stevens' concurring opinion, have adopted four different views *403 of Santos's holding. Reluctantly, we refrain from joining any of these camps but must follow our own reading of Santos. We do not reach this outcome lightly, but we believe that each of their interpretations violates the rule of Marks: that when the Supreme Court issues a splintered decision, we are bound by the entire "position taken by those Members who concurred in the judgment on the narrowest grounds." Marks, 430 U.S. at 193, 97 S.Ct. 990. Each of the existing interpretations of Santos's holding either interprets Justice Stevens as too narrowly limiting the decision of the plurality or fails to give full effect to the concurrence's meaning. Nonetheless, we note that our rule is largely consistent with, although distinguishable from, the holdings of the Sixth and Ninth Circuits and, likely, the First Circuit.
The Fourth, Eighth and Eleventh Circuits have held that in light of Justice Stevens' concurrence, Santos defines "proceeds" as "profits" only when courts are presented with the particular facts of Santos, where the petitioners were convicted of laundering money from the "unlawful activity" of running an illegal gambling operation. United States v. Spencer, 592 F.3d 866, 879-80 & n. 4 (8th Cir.2010); United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir.2009); see also United States v. Howard, 309 Fed.Appx. 760, 771 (4th Cir.2009) (unpublished). The Third and Seventh Circuits have concluded that Justice Stevens' concurrence indicates "proceeds" must be defined as "profits" any time the legislative history of the money-laundering statute does not affirmatively indicate otherwise. United States v. Lee, 558 F.3d 638, 643 (7th Cir.2009); United States v. Yusuf, 536 F.3d 178, 186 n. 12 (3d Cir.2008). Analogous to the first step of Justice Stevens' bifurcated rule, the Ninth Circuit and, likely, the First Circuit have held that "proceeds" must be defined as "profits" any time the "merger problem" articulated in Santos would result if "proceeds" is defined as "gross receipts." United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir.2009); United States v. Bucci, 582 F.3d 108, 123-24 (1st Cir. 2009) (suggesting this interpretation in dicta). Finally, similar to both steps in Justice Stevens' rule, the Sixth Circuit has held, "`proceeds' does not always mean profits, as Justice Scalia concluded; it means profits only when the § 1956 predicate offense creates a merger problem that leads to a radical increase in the statutory maximum sentence and only when nothing in the legislative history suggests that Congress intended such an increase." United States v. Kratt, 579 F.3d 558, 562 (6th Cir.2009) (emphasis added).
However, as demonstrated by the analysis above, we believe that each of these interpretations of Santos is mistaken. Undermining the Fourth, Eighth and Eleventh Circuits conclusion that Santos's holding is limited to the facts of that case, Justice Stevens' concurrence stated that his opinion sought to address the facts of Santos and "other applications of the [money-laundering] statute." Santos, 128 S.Ct. at 2034 n. 7 (Stevens, J., concurring in the judgment). Contradicting the Third, Seventh, Ninth and, likely, the First Circuits' holding that Santos's rule was driven entirely by either the merger problem or the money-laundering statute's legislative history, Justice Stevens stated that the holding of his concurrence took account of both considerations, although to different extents. In tension with the Sixth Circuit's holdingthat "proceeds" should be defined as "profits" only when the "merger problem" would occur, it would result in a substantial increase in the defendant's sentence, and the legislative history does not indicate otherwise Justice Stevens stated that his desire to *404 avoid the "merger problem" and to defer to congressional intent motivated different facets of his holding. The "merger problem" does not need to coexist with legislative history indicating that "proceeds" should be defined as "profits" for that definition to apply. Furthermore, Justice Stevens did not state that the defendant needed to suffer a harsh increase in his sentence in order for "proceeds" to be defined as "profits." He wrote that the fifteen-year increase in the Santos's sentences made the merger in Santos "particularly unfair," but the particular sentence was just a symptom of the unfairness of the merger that his opinion was crafted to avoid. Id. at 2033-34. Therefore, we conclude that a more nuanced, bifurcated analysis is required to fully apply Justice Stevens' concurrence.
B.
Applying our view of the holding of Santos to the instant case, we do not reach the second step of the inquiryin which we would examine the money-laundering statute's legislative history. As laid out in the background section, we conclude that in light of the statute, indictment, and jury instructions of this case, it appears that (1) the Government did not prove or attempt to show that Garland engaged in money laundering with "proceeds," narrowly defined as "profits" rather than as "gross receipts"; (2) the same "transaction" may have been used to prove both the underlying unlawful activity and the money-laundering charges; and therefore (3) Garland's convictions for mail and securities fraud potentially "merged," as defined by Justice Stevens and the plurality, with his money-laundering conviction. Accordingly, Garland was potentially convicted of a nonexistent offense, satisfying the third Reyes-Requena factor.
CONCLUSION
Because we find that in light of Santos Garland has brought a claim that satisfies each of the Reyes-Requena factors, his petition falls within § 2255's "savings clause," allowing him to bring a habeas petition under § 2241. Therefore, we REVERSE the district court's dismissal and REMAND this case to the district court for further proceedings consistent with this opinion.
NOTES
[1] In May 2009, subsequent to Garland's conviction, appeals and prior petitions and the Santos decision, Congress amended the money-laundering statute to provide a definition of "proceeds." Fraud Enforcement and Regulatory Act of 2009, Pub.L. No. 111-21, § 2(f)(1), 123 Stat. 1617, 1618 (2009). Specifically, it provided a broader definition of "proceeds" than the interpretation of the term offered in Santos, that proceeds "means any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." 18 U.S.C. § 1956(c)(9).
[2] Specifically the indictment alleged that the "financial transaction" involving "proceeds," in which Garland engaged, was that Garland used money taken in by the securities and/or mail frauds and "caused checks to be issued. . . which were made payable to" a defrauded individual and "which payment purposed to be legitimate . . . return," thereby seeking to maintain the fraud. The jury instructions stated that in order to conclude Garland transacted in "proceeds" the jury only needed to find that Garland attempted or engaged in a transaction that involved "any property, or interest in property . . . acquire[d] or retain[ed] as a result of the commission of the underlying specified unlawful activity."
[3] 15 U.S.C. § 77x, under which Garland was also convicted, specifies the punishment for committing securities fraud under "any of the provisions of this subchapter." It does not represent a separate offense.
[4] As will be discussed at more length below, Justice Stevens' opinion is controlling.
[5] Because Garland seeks to proceed "under § 2241, he was not required to obtain a certificate of appealability to proceed on appeal." Padilla v. United States, 416 F.3d 424, 425 (5th Cir.2005).
[6] In Teague, the Supreme Court "adopt[ed] Justice Harlan's view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S. at 310, 109 S.Ct. 1060. | 01-03-2023 | 08-13-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3862484/ | Argued September 29, 1941.
This case involves the revocation of a liquor license, issued to appellant, Alexander Oriole, proprietor and operator of "The Arena Log Cabin," a restaurant and bar establishment in the City of Philadelphia. On November 8, 1940, the Pennsylvania Liquor Control Board issued a citation to the appellant, charging that the licensed premises had a passageway or communication to or with a place of amusement, in violation of the provisions of the Act of July 9, 1881, P.L. 162, (47 P. S. § 181). After a hearing was had on the citation, the board found that the premises in question were directly connected with a place of amusement contrary to the provisions of the Act of 1881, and thereupon, on *Page 466
January 16, 1941, entered an order revoking appellant's restaurant liquor license. In the course of the proceedings on the appeal from the order of the board to the Court of Quarter Sessions for the County of Philadelphia, counsel for appellant admitted the existence of a passageway between the tap room and the "Arena" itself, conceded to be a place of amusement. On March 18, 1941, the order of the Liquor Control Board revoking appellant's license was sustained by the court below "subject to the condition that the said licensee shall be afforded a reasonable time to be fixed by the Board to remove or close the passageway or communication between the licensed premises and a place of amusement known as the Arena; and upon performance of this act and upon further application to this court, the order of revocation will be modified." This appeal was made a supersedeas.
The principal question involved in this appeal is whether the court below erred in holding that the Act of 1881 was not repealed by the Pennsylvania Liquor Control Act of November 29, 1933 (Sp. Sess.), P.L. 15 as reenacted and amended by the Acts of July 18, 1935, P.L. 1246, and June 16, 1937, P.L. 1762, (47 P. S. § 744-602-14). Primarily the issue is one of legislative intent. The Act of 1881 provides: "That no license for the sale of vinous, spirituous, malt or brewed liquors, or any admixtures thereof, in any quantity, shall be granted to the proprietors, lessees, keepers or managers of any theaters, circus, museum or other place of amusement, nor shall any house be licensed for the sale of such liquors, or any of them, or any admixtures thereof, which has passage or communication to or with any theater, circus, museum or other place of amusement; and any license granted contrary to this Act shall be null and void."
The principle is established, as appellant contends, that a subsequent statute revising the whole subject of a former statute, and evidently intended as a substitute *Page 467
for it, although it contains no express words to that effect, operates to repeal the statute. This rule of law, however, applies only when the subsequent statute provides a complete and comprehensive method for doing what was provided for in the prior statute, and the two methods are exclusive and cannot be harmonized: App. of Visitors to the Allegheny County Home,109 Pa. Super. 519, 167 A. 632; Shibe's Case (Hadley's Appeal),117 Pa. Super. 7, 12, 177 A. 234.
It will be noted that by Section 802 of the Act of 1933 as reenacted and amended, the legislature specifically repealed the Act of March 27, 1923, P.L. 34, the Act of April 14, 1863, P.L. 389, the Act of May 20, 1913, P.L. 229 in part, and further expressly repealed all other acts and parts of acts, includingspecial or local acts, inconsistent with this Act, which otherwise would be repealed by implication.
Appellant calls attention to section 602 (14) of the Act of 1933, as reenacted and amended which provides that no licensee may permit in any licensed premises, or in any place operated in connection therewith, dancing, theatricals, floor shows, or moving picture exhibition unless a special permit for such entertainment is first obtained from the board. This provision, it is contended, in effect permits the sale of liquor at places of amusement, and is therefore directly contrary to the Act of 1881. This contention is untenable. The section of the Pennsylvania Liquor Control Act referred to does, in fact, provide that premises lawfully licensed to sell liquor may, with special permission, offer certain forms of amusement. It does not follow that all places of amusement, or places operated in connection therewith, are entitled to obtain, or having obtained, to retain a license to sell liquor. For it is not a place of amusement that is granted a license to sell alcoholic beverages, but rather that a bona fide club, restaurant or hotel is permitted by special permission to offer certain forms of amusement. "To hold otherwise would open the door *Page 468
to the granting of licenses to every theater, moving picture show, skating rink, stadium, baseball park, and other place of amusement, which undertook to operate a so-called `eating place' in connection therewith. Only language which would compel an inescapable conclusion of such construction, would sanction such view," Shibe's Case, supra, p. 14.
The purpose of the Act of 1933 was, as its title states, "to regulate and restrain the sale, manufacture, possession, transportation, importation, traffic in, and use of alcohol, and alcoholic and malt or brewed beverages," not to promote their sale. Its enactment was an exercise of the police power of the Commonwealth. The act does not authorize the issuance of a license for the sale of such liquors independent of and disconnected with the particular business of the defined kind of hotel, club and restaurant. Similarly, "the Act of 1881 was a restraint upon the liquor traffic. It prohibited the granting of a license to certain persons in certain businesses, namely, places of amusement and to premises which has a passage or communication to or with a place of amusement. It too was enacted in the exercise of the police power of the State and had for its purpose the public good by the restraint of this business,"Shibe's Case, supra, p. 13, 14.
Had the legislature intended to repeal the Act of 1881, it is reasonable to conclude that it would have included in its repealer, as embraced in the Acts of 1935 and 1937 reenacting and amending section 802 of the Act of 1933, the specific repeal of the Act of 1881. This conclusion is particularly supported by the legislature's omission to do so, following the decision of Shibe's Case which held that the Act of 1881 has not been repealed by the Act of May 3, 1933, P.L. 252, known as the "Beverage License Law," as amended by the Act of December 20, 1933, P.L. 75, (47 P. S. § 84), known as the "Malt Liquor License Law."
It is our opinion that the purposes of the Act of 1881 *Page 469
and the Act of 1933 as reenacted and amended are not inconsistent, but in harmony; that the two methods are not exclusive but supplementary, and that the Act of 1881 has not been repealed.
The order of the court below is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3859356/ | Argued April 18, 1949.
Defendant insurer issued a group life insurance policy to United States Steel Corporation for the benefit of its employes and those of a number of its subsidiaries. Rosella F. Best was a laborer in the employ of Carnegie-Illinois Steel Corporation, a subsidiary covered by the policy. On her written application for participation, a certificate, dated April 26, 1944, was issued to her by the defendant insuring her life under the group policy in the sum of $2,000. Her daughter, the present plaintiff, was named beneficiary in the certificate. The insured left her work finally on October 5, 1944. Thereafter she was totally and continuously disabled by pulmonary tuberculosis until her death on August 19, 1945. At the close of plaintiff's case, brought to recover the face of the policy, a compulsory nonsuit was entered. This appeal is from the refusal of the court to take it off. The question, on undisputed facts, is whether the plaintiff is barred from recovery as a matter of law. This appeal in every aspect is ruled by Peyton v. Equit. Life Assur. Soc., 159 Pa. Super. 318,48 A.2d 145, which construed a similar if not identical insurance policy. *Page 454
In her application for insurance Rosella F. Best authorized deductions by her employer from her earnings in amounts sufficient to cover her contributions to the premium charges. Under the group insurance plan the premium due from an employe was deducted from his first pay each month, in a fixed amount, which carried the employe's insurance through the next succeeding month. The deduction from the present insured's last pay, after ceasing work, was made by her employer on October 7, 1944. This premium contribution carried her insurance in force to November 30, 1944. Plaintiff admits that the premium due from the insured for the month of December 1944 was not paid and no other premium payments were made thereafter either by her or on her behalf.
The question here is whether the insurance contract of Rosella F. Best terminated on November 30, 1944, or whether the plaintiff beneficiary may recover notwithstanding no premium payments were made after October, 1944.
The Group policy provided: "The insurance of any employee shall automatically cease upon the occurrence of any of the following events: (a) the termination of this policy, (b) the cessation of premium payments on account of such employee's insurance hereunder, (c) the thirty-first day following the termination of his employment in the classes of employees insured hereunder. Cessation of active work by an employee shall be deemed to constitute the termination of his employment except that, an employee absent from work because of disability due to injury or sickness or on account of lay-off or leave of absence, will, subject to the continuance of premium payments
on account of such employee's insurance, be regarded as still in the employment of the Employer during the period of such disability, lay-off or leave of absence until the effective date of the discontinuance of such employee's insurance as entered on the Employer's records . . ." (Italics added.) The certificate issued *Page 455
to Rosella F. Best contained this similar provision: "The insurance upon the life of any Employee shall automatically cease upon discontinuance of his required contributions toward the payment of premiums for the insurance under the policy, or in the case of the termination of his employment with the employer in the specified classes of employees, the insurance shall automatically cease upon the thirty-first day following the date on which such termination takes place; . . ." Thus by the above provision of the contract the insurance could be made to continue for thirty-one days following the cessation of active work by an employe but only upon payment of the premium contribution for the month. The policy specifically provides that one on leave of absence because of disability from accident or sickness will "subject to the continuance of premium payments" be regarded as an employe covered by the policy. As in the Peyton case the non-payment of premium clause is separate and distinct from other provisions of the present policy and of itself operates to terminate the insurance.
Plaintiff however contends that the question of her right of recovery was for the jury under an extended insurance clause of the policy. Rosella F. Best, on November 30, 1944, when her insurance ceased by operation of the above provisions of her contract, was totally disabled by disease and her disability continued until it resulted in her death on August 19, 1945. The policy provided that the beneficiary shall be entitled to the proceeds of the policy under such circumstances, subject to this condition: "That such employee's death occurred within a period after said date not longer than the time such employee's insurance hereunder had theretofore been continuously in force and in any event not longer than twelve months after said date . . ." The insured's total period of employment from April 26, 1944, to November 30, 1944, was 219 days. From the date of termination of the insurance on November 30, 1944, to *Page 456
the date of death on August 19, 1945, the elapsed time was 262 days.
Plaintiff has not been able to establish a date of termination of the policy, according to its terms, beyond November 30, 1944, and has not brought the insured within the above extended insurance provision.
The insured's employer had $58.25 in back pay due her when she stopped work which she did not draw until March 16, 1945. There is no merit in the contention that the employer should have paid the insured's monthly premium for the month of December 1944, at least, out of the above sum in its hands. This the employer was powerless to do. This sum was wages for October 1944 and the employer had already made the only authorized premium deduction under its agreement with the insured. Moreover, in deducting premium payments from an employe's wages and transmitting them to the insurer, the employer company acted as agent of the insured and not of the insurer: Bahas v. Equit. Life As. Society, 128 Pa. Super. 167,171, 193 A. 344, affirmed in 331 Pa. 164, 200 A. 91. And if the employer had failed in the performance of a duty in that respect plaintiff's right of action would have been against the employer and not the insurer. The insured could have, but did not, authorize her employer to pay her premium contributions after October 1944 out of the wages due her when her employment ceased.
It is unimportant that the insured's employment was not formally terminated on the records of her employer until December 13, 1944, or that she never received notice of the termination of her employment. This case turns, not upon when the employment terminated, but when the insurance coverage ceased. As to that, what we said in Peyton v. Equit. LifeAssur. Soc., supra, p. 323, is equally pertinent here: "In the present case employment was not the sole requirement for insurance coverage; and continuance of the insurance was not *Page 457
co-extensive with employment. There could be employment without insurance coverage. . . . The determining factor here is the policy provision requiring payment by an employee of a monthly contribution in advance as a condition precedent to insurance coverage. By the clear terms of the group policy and the individual certificate, failure of an employee to make such payment caused an automatic cessation of insurance coverage."
Finally, as in the Peyton case, p. 324, the right of the insured under the provision of the contract to have issued to her upon payment of the applicable premium, "an individual policy of life insurance in any one of the forms customarily issued by the Society" within 31 days after termination of her employment did not extend her insurance under the group policy beyond November 30, 1944, when the coverage ceased for nonpayment of premium contributions. The privilege of the so-called "conversion" under that provision of the policy was never exercised by the insured.
The plaintiff cannot recover as beneficiary under a construction of the policy most favorable to her under the admitted facts.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3860025/ | Argued November 13, 1930.
A careful review of all the evidence in this case, considered in the light most favorable to the plaintiffs, satisfies us that Diamond, who was driving the Sklaroff truck when it was hit by the defendant's trolley car, must be held guilty of contributory negligence as matter of law, and that defendant's points for binding instructions should have been affirmed or judgments non obstante veredicto entered in its favor.
Island Road runs east and west. Two street car tracks are maintained along or upon it by defendant, one on the north side, for west bound traffic and the other on the south side for east bound traffic, with the roadway for vehicular traffic between. At or about 77th Street it is practically a country road, the country being open with only a few houses around.
At eleven o'clock in the morning of March 26, 1926, *Page 239
the plaintiff Diamond was driving the other plaintiffs' truck westward on Island Road on the north side of the roadway used for vehicular traffic, traveling about twenty miles an hour, and intending to turn southward into 77th Street. As he approached 77th Street and started to make the turn he saw defendant's car approaching from the west about 400 feet away. He slackened his speed to ten miles an hour but did not look again until his front wheels were across the first rail of defendant's east bound track, and then defendant's car was distant from 125 to 150 feet away. Thinking, he said, that he could clear the track he proceeded and was struck before the truck was clear of the track and overhang of the car. In doing this he violated the well-established rule which required him to look for the defendant's car just before entering on the track: Smathers v. Pittsburgh Butler St. Ry. Co., 226 Pa. 212, 215; Benamy v. Reading Transit Light Co., 269 Pa. 372, 373; Camac v. Phila. R.T. Co., 269 Pa. 543, 544; Kalter v. Phila. R.T. Co., 95 Pa. Super. 116,121; Thornton Fuller Auto Co. v. Phila. R.T. Co., 95 Pa. Super. 286, 288. When he looked the second time he was already in a place of danger, with his front wheels over the first rail where it would have taken as long to stop and reverse and back off as to go ahead and clear the track. Had he looked just before going on the track he would have seen defendant's car only 150 feet away and coming at a rate of 35 to 40 miles an hour, and would have realized that if the trolley car had traveled 250 feet while he had crossed the roadway between the tracks, it was at least doubtful whether he could safely clear the track while the car traveled the remaining distance. There is no room for question that Diamond testified that he looked just before he started to make the turn and did not look again until he was partly across the track; *Page 240
and that being so, and having been hit before, in the ordinary operation of his truck, he could clear the track, he must be held guilty of contributory negligence as matter of law.
The first and second assignments of error in each appeal are sustained. The judgment in each case is reversed and entered in favor of the defendant non obstante veredicto. No. 334, October Term, 1930. Judgment reversed and entered in favor of the defendant non obstante veredicto. No. 336, October Term 1930. Judgment reversed and entered in favor of the defendant non obstante veredicto. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3404049/ | 1-4. The special grounds of the motion for new trial, complaining of errors alleged to have been made in the charge of the court, are without merit.
5. Under the conflicting evidence a jury question was presented as to whether or not the identify of the bottle, tendered by the defendant as being the one which exploded and injured the plaintiff, had been sufficiently established.
6. The evidence was sufficient to authorize the verdict returned by the jury in favor of the defendant.
DECIDED JUNE 21, 1941.
Guy Cole, by next friend, instituted an attachment proceeding against Pepsi-Cola Bottling Company, and thereafter filed a declaration in the superior court in aid of the attachment proceeding, seeking to recover damages because of injuries sustained by him on account of the alleged negligence of the defendant. It was alleged that the defendant, a corporation, was and is a bottler and distributor of a certain carbonated beverage known as "Pepsi-Cola," and under a pressure system charges carbonated water made of carbonic acid gas into a glass bottle in which has been placed certain ingredients of Pepsi-Cola syrup, and that said corporation bottles such beverage into a glass bottle the minimum contents of which are twelve fluid ounces, and that each of said bottles weighs about or in excess of one pound, and that the bottles are capped with an automatic capping machine so as to make them air tight; that after they are so charged with carbonated water and capped as herein alleged they are placed in a case as a salable product and *Page 205
sold as a beverage to retail dealers; that said corporation sells and distributes the bottles and contents thereof to various retail dealers throughout the territory where the defendant's plant is in operation; that the Pepsi-Cola beverage is sold to the general public as a healthful and harmless drink, being distributed by the defendant, its officers and agents, to various retail dealers, and that it advertises said Pepsi-Cola as a refreshing, healthful, sparkling, bracing beverage, thus inviting the general public to the use of the same; that one of the said crates, bottled and charged as herein described, was delivered to the place of business of one T. H. White, having been brought from Anderson, South Carolina, by one Craft, an employee of the defendant, the bottles having been handled only by employees of the defendant and having been placed by said employees in the place of business of said White, proprietor of a restaurant located in the City of Hartwell, Georgia; that to the best of the information and belief of the plaintiff the bottles were bottled and prepared for sale to the general public at the place of business of the defendant in Anderson, South Carolina, at which plant the bottles were prepared as a beverage suitable for the use of the general public; that the said T. H. White procured the crate of Pepsi-Cola from the employees of the defendant, and the Pepsi-Cola was deposited in said bottles in a certain ice box located on the premises at the place of business of the said White, and was being offered for sale in said manner to the general public on the 14th day of June, 1938; that on the day named the plaintiff was employed as a helper in the place of business of White and was working in his store on the date herein set out, which store keeps and offers for sale certain beverages for the use of the general public, among them being the Pepsi-Cola bottled by the defendant, and said Pepsi-Cola is purchased exclusively from the defendant for resale, deliveries being made to said store by employees of the defendant by truck operating out from the Anderson, South Carolina, bottling plant of the defendant; that the Pepsi-Cola is unloaded and stacked in the place of business of the said White, and said Pepsi-Cola was unloaded and stacked in the place of business and was being offered for sale by said store on the date herein alleged, the delivery of the Pepsi-Cola having been previously made; that on said date of June 14, 1938, the plaintiff, being then and there employed as a general helper on the premises of the said White's store, *Page 206
had transferred some of the Pepsi-Cola, with others working in the store, from the crates wherein the same had been stacked by the employees of the defendant to an ice box located on said premises for the purpose of sale to the general public as ice-cold Pepsi-Cola; that said ice box had two compartments, one of which is used for the storage of bottled drinks of the said store, and the other containing a receptacle for the storage of ice; that on the day alleged the plaintiff, with the assistance of the said White, joint operator of the said place of business, had opened the ice-box lid for the purpose of packing ice around and about the bottles containing Pepsi-Cola, the plaintiff being at the time in a leaning position over the ice box, when suddenly and without warning one of the bottles of Pepsi-Cola, containing the product sold by the defendant, violently and suddenly exploded, a large and sharp piece of glass flying upwards and from said bottle, and propelled by the force of the explosion struck the left eye of the plaintiff and injured him in described particulars; that said bottle was not handled by others than employees and agents of the defendant except as herein alleged, and the plaintiff exercised ordinary care in handling the bottle, as did all other employees in said store; that the plaintiff did nothing to cause the explosion of said bottle, but exercised all caution to prevent the same, and the explosion was caused by the negligence of the defendant, its agents, and employees, which negligence was the proximate cause of the plaintiff's injuries. It was alleged that the defendant was negligent: (a) in that it charged said bottle containing carbonated water, or carbonic acid gas, and the contents of the Pepsi-Cola syrup with too high a pressure on the bottle; (b) that said bottle was dangerously and highly charged with carbonated water or carbonic acid gas; (c) in placing on sale a bottle of the said beverage so highly charged and so dangerously charged with carbonated water as to cause a sudden and violent explosion of the same; (d) in failing to use the proper care in charging the bottle with an excessive quantity of carbonated water, which bottle, if it had been properly charged, would not have exploded; (e) in placing on sale and allowing to be placed on sale a bottle which was insufficient and incapable of withstanding the force of the charge of carbonated water or carbonic acid gas; (f) in failing to properly inspect the bottle and discover whether it was fit for use as a Pepsi-Cola bottle; (g) in inspecting the bottle and in failing to properly *Page 207
ascertain whether or not it was unfit for the purpose used; (h) in failing to make the proper inspection of the bottle or test the same to determine whether or not it was dangerously and excessively charged with carbonated water and whether or not it was dangerous to the general public; (i) the defendant advertised and sold its beverage as a harmless and refreshing drink and was negligent in bottling and placing on the market, for the purpose of sale, the bottle which was excessively and dangerously charged with explosive gas, the bottle being in a defective condition and not being strong enough to withstand said charge.
On the trial of the case the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds and several special grounds. The court overruled the motion, and the exception here is to that judgment.
1. Special ground one of the motion for new trial assigns error on a purported excerpt of the charge of the court. The language quoted does not, however, appear in the charge in immediate sequence, but is an assembly of parts of the charge out of proper relation to the context in which used, and in part in reverse order in which used, and mixed with language which constitutes instructions as to legal principles applicable to issues under the contentions of the plaintiff is other language which refers merely to contentions of the defendant as to exercising ordinary care and representing a separate and distinct instruction of the court as given to the jury in another context. This assignment of error is without merit. All of the quoted language, when placed in its proper relation within the charge, is not subject to any objection urged by the plaintiff in error.
2. The court charged the jury as follows: "If you find that the defendant company has exercised ordinary care in the transaction under investigation, then there can be no recovery, regardless of whether the bottle broke or exploded, and regardless of whether the plaintiff was injured as complained of. Manufacturers of food and drink in this State are not insurers of their products, but they must exercise ordinary care and diligence in the preparation and distribution to their trade. And in this case if you find that the defendant has used this ordinary care there can be no recovery. The mere fact that the bottle burst would not authorize you to find a verdict against the defendant unless you further find that the *Page 208
defendant was negligent, lacking in care in one or more of the ways set out in the petition. . . If it has not been satisfactorily shown to you what caused the bursting or explosion of the bottle in question, and if the cause of its bursting remains a mystery to you, unless it has been shown to your satisfaction that the bottle burst because of the alleged negligence of the defendant, there can be no recovery." Error is assigned on the grounds that the court unduly stressed the contentions of the defendant, and that the charge was argumentative and invaded the province of the jury, in that it had the effect of withdrawing from the consideration of the jury the doctrine of res ipsa loquitur, about which the court had previously charged the jury, and which if applied set up an inference of negligence against the defendant "and precluded the question of ordinary care from the minds of the jury, the only issue in such case being as to whose negligence it was that caused the injury," and that for this reason the charge was confusing and misleading to the jury.
The excerpt is not subject to the objection that it unduly stressed the contentions of the defendant. The defendant was entitled to have the court state them to the extent shown, especially in a case of this kind where by proof by the plaintiff of certain facts and circumstances the jury would be authorized to apply, as the court had charged, the doctrine of res ipsa loquitur, and in doing so examine the defendant's evidence to determine whether or not it had exculpated itself from the inference of negligence which the jury might draw. With respect to the other objections urged the following is applicable: One who manufactures and markets a bottled beverage is not, in this State, an insurer of the wholesomeness of the contents or the safety of the bottle, but is bound only to the exercise of ordinary care in respect thereto, and the statement by the court of such rule of law did not amount to an argument. The right of the jury to apply the doctrine of res ipsa loquitur in a given case is not tantamount to relieving the plaintiff of the burden of showing that the defendant has failed to exercise ordinary care towards the plaintiff. The maxim res ipsa loquitur, as was said in Cochrell v. Langley Mfg. C., 5 Ga. App. 317, 322
(63 S.E. 244), "has been a prolific inspiration to much useless and wasted juridic erudition," and it was added in the same case: "Practically, as we said in [Monahan v. National Realty Co.] *Page 209
4 Ga. App. 680 (62 S.E. 127), the doctrine is simply a rule of circumstantial evidence, which permits an inference to be drawn from proved facts. It furnishes a working basis for reasonable hypothetical conjecture, and gives scope for legitimate reasoning by the jury. The philosophy of the doctrine is stated in section 5157 of the Civil Code [Code of 1933, § 38-123]: `In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter-evidence, may infer the existence of other facts reasonably and logically consequent on those proved.'"
In showing facts and circumstances which permit the jury to find that the casualty or phenomenon was unusual and extraordinary and free from all external causes, and thereupon to apply such doctrine, the plaintiff is merely using a medium, distinct from that involving direct evidence, by which to establish an ultimate fact, and thus undertaking to carry the burden cast on him by law of proving his case by a preponderance of the evidence. The court was correct in charging, and without militating against such doctrine, that the plaintiff could not recover if it was shown that the defendant had exercised ordinary care as pleaded. If the plaintiff, in a case of this kind, shows merely the fact of a bursting bottle, and stops there, he would not make out his case. The explosion may have been caused by accident or by the act of a third party, and not by the negligence of the defendant. The responsibility must be fixed by the jury, and while they may in a proper case apply the doctrine of res ipsa loquitur, it is error for the court to instruct them that they must do so. Where an event "is unusual and extraordinary in its nature, and there is nothing to indicate an external cause, but the peculiar character of the accident is sufficient within itself to indicate that it must have been brought about by negligence on the part of some one, and where the most reasonable and probable inference which can be rationally drawn from the happening of such an event is that it would not and could not have taken place had not the person charged with furnishing or maintaining the instrumentality causing the accident been guilty of the particular acts or omissions set forth by the plaintiff as constituting the actual cause, then the jury is authorized to apply the rule of evidence known as the doctrine of res ipsa loquitur, in determining whether or not the accident must have been thus occasioned."Atlanta Coca-Cola Bottling Co. v. Danneman, *Page 210 25 Ga. App. 43 (102 S.E. 542); Atlanta Coca-Cola Bottling Co. v.Shipp, 41 Ga. App. 705 (2) (154 S.E. 385); Macon Coca-ColaBottling Co. v. Crane, 55 Ga. App. 573 (190 S.E. 879). "Where an action is brought to recover damages for an injury caused by the explosion of a bottle, the contents of which were manufactured, bottled, and sold by the defendant as a harmless beverage, an inference of negligence on the part of the manufacturer arises, when it is shown that all the persons through whose hands the bottle had passed were free from fault, and that the condition of the bottle and its contents had not been changed since it left the defendant's possession." Payne
v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762
(73 S.E. 1087); Macon Coca-Cola Bottling Co. v. Crane, supra.
There may be evidence before the jury which would authorize them to find that the plaintiff's or some other intermediary's negligence was the cause of the bottle bursting, and in that case the jury would not need to resort to the application of the doctrine of res ipsa loquitur. But if they eliminate, as to negligence, all intermediaries or the fact of an accident, the inference of negligence would rest upon the one who put in circulation the thing which caused the damage, and "In such a case it would be no answer, when the maxim that the thing spoke for itself is invoked, to say that when the injury resulted the thing was not in the possession, power, or control of the manufacturer." Payne v. Rome Coca-Cola Bottling Co., supra. Accordingly, if when the plaintiff had made out such a case and rested, and the defendant put up no evidence to exculpate itself, the plaintiff would be entitled to a verdict. But if the defendant introduced evidence to show the exercise of ordinary care on its part in respect to the thing doing the damage, it would be the duty of the jury, if they applied the doctrine of res ipsa loquitur, to determine whether or not the defendant had shown to their satisfaction that it was not negligent as claimed. If the jury find that the defendant has successfully established its defense, it would return a verdict in its favor, but nevertheless the inference of negligence, drawn from the unusual and extraordinary event, would not have been set aside, but would persist for all time, not against the defendant, but against some undisclosed person, notwithstanding the fact, as said by Judge Russell in Sinkovitz v. Peters Land Co., 5 Ga. App. 788,795 (64 S.E. 93), the cause of *Page 211
the occurrence "might still be involved in unsolvable mystery." From the above discussion it is seen that the court, while it charged the jury as to the doctrine of res ipsa loquitur, did not err in also charging that the burden was upon the plaintiff to prove the defendant's negligence by a preponderance of the evidence, and that the plaintiff could not recover if the jury found that the defendant did not fail to exercise ordinary care.
3. Ground three of the motion for new trial sets forth a purported excerpt of the charge of the court which does not represent a distinct and connected instruction of the court, but is a combination of widely-scattered parts of the charge. Accordingly, this ground is without merit and insufficient to call for any ruling.
4. The entire charge of the court, of which complaint is made in special ground four of the motion for new trial, is not subject to any of the objections urged, and in view of what has been stated hereinbefore in the opinion any detailed discussion is deemed unnecessary and unprofitable.
5. The fifth special ground of the motion for new trial assigns error on the admission in evidence of an empty broken bottle as the one which had burst and injured the plaintiff, it being contended by the plaintiff in error that it had not been sufficiently identified. While the evidence in this respect was conflicting, it was sufficient to require submission to the jury of the issue of identity.
6. The evidence on the trial of the case was voluminous, but without entering into any detailed discussion it is deemed sufficient to say that from it the jury was authorized to return the verdict in favor of the defendant. It can not be known whether or not the jury applied the doctrine of res ipsa loquitur. Without doing so they were authorized to find from the testimony of one of the plaintiff's witnesses, who with him was, at the time of plaintiff's injury, about to place some bottled Pepsi-Cola in an ice box in which other bottled drinks were already present, that this witness in moving some of the bottles from one side of the ice box to the other side "jostled" or struck together some of the bottles, and that in this manner one of the bottles was cracked or broken and exploded with resulting injury to the plaintiff. If, however, the jury did not so find, and did not find that the explosion was caused by the plaintiff's negligence or that of any person who handled the bottle after it left the possession of the manufacturer, they were authorized *Page 212
to apply the doctrine of res ipsa loquitur, and in applying the same to find that the defendant had exculpated itself from any inference of negligence, in that it had used ordinary care and diligence in the manufacture and marketing of its product. There was uncontradicted evidence that it had bought all of its bottles from a very reputable manufacturer, that it employed modern and efficient machinery and equipment in the preparation and processing of its product, and there was evidence that it carefully tested and inspected the bottles which it used and studiously sought to avoid any overcharge. In all respects the jury was authorized to find that in these matters the defendant exercised ordinary care and diligence and an expert witness testified for the defendant that in his opinion the explosion of the bottle was caused from outside pressure. While it is properly contended that the evidence showed that the defendant used refilled bottles, these bottles were not such as came from sources unknown to the defendant and about which there was no evidence as to the reliability of the manufacturer or the quality of the bottles, but were all bottles which had been purchased from one source, a manufacturer of high standing, and which were always carefully inspected at each time of refilling. The mere fact of a refilled bottle would not establish its unfitness for use. In Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43
(102 S.E. 542), cited and relied on by the plaintiff in error in this respect, it appeared that the bottle had not been purchased from a reputable dealer and was a refilled bottle originally purchased by some bottling concern other than the defendant in that case from persons unknown to the defendant. The defendant sought to exonerate itself from blame by showing that it had exercised ordinary care, in that the bottle had been skilfully and properly charged in accordance with the most approved and scientific process, and that the bottle furnished to the plaintiff did not disclose any inherent defect or weakness, and had been purchased as a sound and suitable article from a reputable dealer, but, in the opinion of the court, the evidence failed to thus account for the particular bottle causing the injury. That case is readily distinguishable on its facts from the present one.
Judgment affirmed. Stephens, P. J., concurs. Felton, J.,concurs in the judgment. *Page 213 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3863620/ | This suit is brought by Ellen O. Peck, Mary T. Peck, Maria S. Peck, and Elizabeth A. Peck, children of the late Allen O. Peck, and residuary devisees and legatees under his will, against their mother, Mary E. Peck, widow of said Allen and executrix of his will, and against Benjamin W. Smith, assignee of said Mary E. Peck, for the benefit of her creditors. The will of Allen O. Peck, after directing the payment of his debts and funeral expenses and an annuity of one hundred dollars to his aunt, contained the following residuary clause, to wit:
"I give, devise, and bequeath all the residue and remainder of my estate of all kinds to my children, share and share alike, to have and to hold the same to them and their respective heirs, subject however to the following provision for my wife, Mary Elizabeth Peck: in lieu of her dower in my said estate, my said wife may use, occupy, and enjoy such parts of my estate as she may at any time elect for the residence of herself and my children, and the income of all other parts of my said estate for the use and benefit of herself and my children during her life, and until the day of her marriage; but from the day of her marriage, and for the remainder of her life, she may have only the use and income of one half of my estate, including such part thereof as she may select for her residence and the household furniture."
The will appoints the said Mary E. executrix, and authorizes her as such to sell so much and such parts of the estate, real and personal, as she may judge proper and expedient, at such times as she may judge expedient, and also such as she may judge necessary or desirable for security or reinvestment.
The bill sets out that Mary E. Peck qualified as executrix, and, after administering the estate, filed in the probate court a statement *Page 262
showing that she still held as executrix, besides other property, divers shares of stock in corporations in the city of Providence, to wit: sixteen shares in the Bank of America, one hundred and sixty shares in the Providence Gas Company, and forty-five shares in the American Screw Company and that thereafter, being unused to business and relying upon the advice of her brother, the late Henry C. Whitaker, who misled her for his own advantage, she had said sixteen bank shares, and one hundred and thirty of said Gas Company, and forty of said Screw Company shares transferred into her own individual name, and pledged said one hundred and thirty and said forty shares to various banks as security for advances made to him under her name; and also that said sixteen shares of the Bank of America are now claimed by the bank, under a provision of its charter, for discounting paper held by it on which, as it claims, said Mary E. Peck is liable as maker, indorser, or otherwise, the proceeds of the discount having gone to Whitaker. The bill further sets forth that there were also sundry parcels of land belonging to the estate of Allen O. Peck, and that, after the death of Whitaker, said Mary E. Peck, discovering what she had done through his agency, and that she was insolvent and that her property was attached, made a general assignment under the statute, Pub. Stat. R.I. cap. 237, § 12, to the defendant Smith in trust for her creditors.
The bill also alleges that said Smith claims to be entitled as assignee to certain interests in all the property devised and bequeathed as aforesaid, and is about to advertise them for sale in discharge of his duties under the assignment; that the complainants have filed against him their claims for the shares of stock transferred into the name of said Mary E. Peck, and pledged as aforesaid; and that they claim that the said Mary E. Peck took under their father's will no assignable interest in the property thereby devised and bequeathed. The bill also claims, in their behalf, that, if the court should decide that she did have an assignable interest, they are entitled, by reason of the conversion of said trust property, to an equitable set-off, recoupment, charge, and lien therefor, to the extent of the conversion, against said interest; and that, inasmuch as said interest is less in value than the property so converted, they are entitled to have the whole of it conveyed *Page 263
to them, deducting its value, as it may be found, from the amount of their claim presented by them to said Smith.
The prayer of the bill is that the complainants may be decreed to be entitled to a set-off or recoupment, as aforesaid; and that the defendant Smith may be decreed to convey the interest of Mary E. Peck under the will held by him to the complainants, the full value, as computed by a master or otherwise, to be deducted from their claim against him, and that he may be enjoined from selling said interest or any part thereof; and for general relief.
Mary E. Peck answers admitting the allegations of the bill, and submitting herself to the order of the court. The defendant Smith answers admitting the allegations, but he sets up that the complainants have commenced suits in equity in this court against the American Screw Company, against the Providence Gas Company, and against the Bank of America to recover the stock, or portions of the stock, or the value of the stock, for the conversion of which by Mary E. Peck they seek by this suit to recoup from the property held by said Smith as assignee, all of which suits remain undetermined, and said Smith thereupon claims and submits:
1. That the complainants are not entitled as against him to the relief prayed for.
2. That, at all events, they should first exhaust their remedy at law against the said Mary E. Peck, executrix, and the sureties on her bond.
3. That they should exhaust the remedy sought to be enforced in the three equity suits aforesaid before they have any remedy against the real estate belonging to Smith as assignee.
Under the first head two questions arise, namely, first,
Did Mary E. Peck take an assignable interest in the estate of Allen O. Peck under his will; and if so, second, Is that interest in the hands of her assignee liable to charge or recoupment in favor of the complainants, in preference over the other creditors, for their interest in the stock transferred into her individual name and pledged?
The first of these questions, though raised by the bill, has not been argued by counsel, it being apparently assumed that Mrs. Peck took a life estate under the will in the entire residuum.
We *Page 264
think she took an estate for life therein, and partly, if not wholly, free from trust for her children, and that, to the extent of her beneficial interest, it was assignable. The case does not at present require us to go any further. 1 Perry on Trusts, §§ 112, 113.
As to the second point, the claim of the complainants is, that where property is held in trust for life, with remainder over, and the capital is broken into for the benefit of the life tenant in violation of the trust, there the life interest may be held to make good the deficit, not only against the life tenant himself, but also against his assignee in bankruptcy or insolvency. We think there can be no doubt that such is the rule when the trust is regularly constituted, the trustee and thecestuis que trustent being different persons. In such case the trustee has the right to secure or indemnify himself for such inroads on the capital out of the income accruing to the life tenant, and the latter's assignee, who takes only an equitable interest, must take it as his assignor held it, subject to the right. Williams v. Allen, 32 Beav. 650; Ex parte Turner, 2 De G., M. G. 927; M'Gachen v. Dew, 15 Beav. 84; Lincoln
v. Wright, 4 Beav. 427; Fuller v. Knight, 6 Beav. 205; Exparte Turpin, 1 Pa. D. C. 120; Ex parte King, 1 Deacon, 143;Priddy v. Rose, 3 Meriv. 105. In Barratt v. Wyatt, 30 Beav. 442, it was held that, when trustees are made liable for a breach of trust committed for the benefit of the life tenant, they are entitled to be recouped out of his interest, although they have ceased to be trustees. In Fuller v. Knight, 6 Beav. 205, it was held that a trustee, who has committed a breach of trust for the benefit of the life tenant, cannot by contract waive his right of recoupment out of the life interest, the doctrine of the court being that he possessed the right not only for himself, but also for the cestuis que trustent in remainder, and that it is therefore his duty to exercise it for them where he had not himself repaired the wrong. See Price v.Blakemore, 6 Beav. 507; Carson v. Sloane, 13 Ir. L.R. 139.
The case at bar differs from the cases cited in this, that here it is not the trustee who is seeking to recoup, but thecestuis in remainder. It also differs in that there was here no formal trust, but the will devised and bequeathed the residue directly to the complainants subject to the estate given to Mrs. Peck. A trust *Page 265
grew out of Mrs. Peck's appointment as executrix, and her continuing to hold the shares of stock in her representative capacity after she had paid the debts, she herself being the life tenant. She did not divest herself in equity of this trust when she transferred the shares into her individual name, and therefore her subsequent pledging of them was in equity a new violation of the trust; and the question is, whether, under the cases cited, the complainants, as tenants in remainder, are entitled as against her assignee to have her interest held to answer for any losses which may result therefrom. We think they are so entitled. The trustee has disabled herself from acting for them, though under Fuller v. Knight, supra, it would be her duty to act for them if she could. In the same case it was admitted by counsel, apparently with the concurrence of the court, that the equitable tenants in remainder could bring suit for themselves, though the court held that, notwithstanding they could do so, it was the duty of the trustee to bring suit for them. In other words, the doctrine recognized was that the right of recoupment out of the life interest was not simply the right of the trustee for his own indemnity or protection, but likewise the right of the tenants in remainder. If this be so, the court will not allow the right of the cestuis to be lost by the voluntary assignment of the trustee, but will hold the trust property subject to the right in the hands of the assignee at the suit of the cestuis. And see Lewin on Trusts, *771; Woodyatt
v. Gresley, 8 Sim. 180. In the last cited case, the suit was brought by trustees of the equitable remainder under a secondary settlement, and some of the cestuis que trustent thereunder.
Our decision is, that the complainants are entitled to have Mrs. Peck's life interest in the shares of stock which passed to her assignee held to answer for any losses which have resulted or may result from her misconduct before described. We do not think her life interest in the real estate is subject to the same equity, since the real estate was not involved in the trust.Egbert v. Butter, 21 Beav. 560.
We know of no principle upon which the complainants can be required to exhaust their remedy against the sureties on the bond given by Mrs. Peck, as executrix, before prosecuting their claims against her life interest; but, on the contrary, we are inclined to *Page 266
think that, if the sureties were compelled to satisfy the claims before its enforcement against the life interest, they would be entitled to be subrogated to the right of the complainants against the same.
There will be no restraint under this decision as to the assignee's selling Mrs. Peck's interest in the real estate; but we are of opinion that her interest in the shares of stock in his hands under the assignment, with the interest accruing thereon, should be kept in some proper manner to await the result of the suits brought to recover the other shares, then to be further adjudicated upon as equity requires. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3855681/ | Argued March 15, 1939.
The appellee brought suit under a group insurance policy covering agents of the defendant company. The insured was entitled thereunder to disability benefits while "wholly and continuously disabled, as a result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation or performing any work for wage or profit."
The plaintiff's statement averred that on January 29, 1937, while in active service, he suffered an illness which totally and continuously disabled him for a period of fifty-two weeks. The defendant admitted plaintiff was temporarily disabled from January 29, 1937, until April 25, 1937, and paid benefits covering that period, but denied that he was prevented from engaging in any occupation or performing any work for wage or profit after April 25, 1937.
Plaintiff sought to recover disability payments alleged to be due for the remainder of the fifty-two-week period, and obtained a judgment. *Page 262
The appellant's chief complaint is directed to instructions given the jury. The trial judge in his general charge correctly told the jury that under the provisions of the policy plaintiff could not recover unless he was unable "to perform any of the duties of any occupation which the insured might be ordinarily capable of performing."
Plaintiff submitted the following point for charge: "2. The Plaintiff's inability to do the greater portion, the substantial part of his work or duty is sufficient to enable him to recover under the policy." That incorrectly stated the law applicable to the case and was in conflict with instructions in the charge, and should have been refused. The court, however, affirmed the point and then added: "As we have said to you, the reasonable interpretation of the words of the contract is that total disability to engage in any occupation or work for profit or wage, means, unable to perform any of the duties of any occupation which the insured might be ordinarily capable of performing." These two statements of the law are irreconcilable. One is right, the other admittedly is wrong. What was the jury to follow? The construction to be placed on the language in the policy was vitally important. It is very essential that instructions in the general charge and answer to points submitted should be harmonious, clear, and definite.
This case is similar in its facts to Cooper v. MetropolitanLife Ins. Co., 317 Pa. 405, 407, 177 A. 43, where the jury was told that "Totally and wholly disabled, as used in the policies, meant not `absolute helplessness, but rather the inability of the insured to do the greater portion or substantial part of his work or duty.' The court, in holding those instructions erroneous, said (p. 408): "A reasonable interpretation of the words of the policy is, that the total disability to engage in any occupation or work for compensation or profit which is insured against, means inability to perform any of *Page 263
the duties of any occupation which the insured might be ordinarily capable of performing."
We are all of the opinion that the error in the affirmance of the point, to which we have called attention, was not corrected by the trial judge's reference to his general charge. It is true that in passing upon the charge of the court the general effect thereof controls. A single misstatement or mere inadequacy is not generally regarded so serious as to require the granting of a new trial. That is necessary only when the charge, taken in its entirety, misguides the jury: Com. v. Glenn, 321 Pa. 241,183 A. 763; Giannone v. Reale, 333 Pa. 21, 3 A.2d 331. But an erroneous or misleading instruction on the law involved cannot be overlooked or counted as harmless error, notwithstanding the granting of new trials is not desirable: Raskus v. AlleghenyValley Street Railway, 302 Pa. 34, 153 A. 117; Walters v. W. S.Life Ins. Co., 318 Pa. 382, 178 A. 499. The two conflicting statements of the learned trial judge, concerning a pivotal matter, must have been confusing to the jury, leaving them to surmise which instruction was correct, and constituted a basic error. It has been frequently held that where part of a charge as to material questions of law is contradictory, the judgment must be reversed. "But when the answer to a point is palpably wrong, it cannot be aided by the general charge": Rice v. Olin, 79 Pa. 391,397. In Davidson v. Traction Co., 4 Pa. Super. 86, 93, where judgment was reversed because the trial judge qualifiedly affirmed the plaintiff's first point for charge, the court said: "This was manifestly erroneous and inconsistent with other portions of the charge and the answers to other points. . . . . . We are sure that the learned judge did not intend to convey that impression, but we are not sure that the jury did not receive and act upon it. . . . . . . An obscure answer to a point may be aided in this manner, but not one that is palpably wrong: [citing cases.]" See, also, Gearing v. Lacher, 146 Pa. 397, 400, *Page 264 23 A. 229; Otto Gas Engine Works v. Pepper, 228 Pa. 205, 211,77 A. 443; Irwin Gas Coal Co. v. Logan Coal Co., 270 Pa. 443, 447,113 A. 667.
Judgment of the court below is reversed, and a new trial ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3863627/ | Upon this petition it appears that service of the writ, in the case for which a trial is asked, was not made upon the defendants, and that they had no notice of the suit. *Page 525
The petitioners do not contradict the return of the officer, but supplement it by facts which show that no legal service of the writ was made, on account of which judgment was rendered against them by default. This entitles them to a trial.
Case remitted to the District Court of the Tenth Judicial District for trial. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3404126/ | In this action upon a policy of life insurance the evidence conclusively established the defense of material misrepresentation inducing the issuance of the policy, made by the insured in her application for the policy, the application having been attached to the policy. The court did not err in directing the verdict for the defendant.
DECIDED SEPTEMBER 29, 1943.
The plaintiffs sued on a policy of life insurance issued by the defendant company to Mrs. Zaharenea Vlass, in which they were named as beneficiaries. The defendant pleaded that the policy was void because of material misrepresentations made by the insured in her application which was attached to and made part of the policy. The application shows that in answer to questions therein the applicant made the following statements: that she had never suffered from or consulted a physician for any complaint or affection of the throat or lungs, or of the heart or blood-vessels, or palpitation, or high-blood pressure, or angina pectoris, or pain in the chest, or from other complaints. She further stated, in answer to questions in the application, that during the past five years she had not been examined or treated by, or consulted, a physician, and that she had never had advice about her heart or lungs, or submitted to electro-cardiographic or x-ray examination *Page 7
or to blood tests. In signing the application she made the following statement: "I declare that the above answers are full and true, and that I am now and am usually of sound health; and I agree that this declaration, with the answers given by me in the personal declaration made in lieu of medical examination, or the answers given by me to the medical examiner, should an examination be required, shall be the basis of the policy." The application was signed in August, 1938, the policy was issued on August 18, 1938, and the insured died on November 4, 1939.
On the trial the undisputed evidence showed that the insured was a regular patient of Dr. Rufus Dorsey during the years 1936 and 1937, and that Dr. Dorsey gave her digitalis and nitroglycerin as heart stimulants. The following evidence also was undisputed: On January 12, 1937, Dr. Jeff L. Richardson examined the insured with an electrocardiogram, an instrument used in diagnosis of heart disease, and found that she had a coronary disease. Dr. Newdicate Owensby treated the insured for two years before her death, and found she had high-blood pressure and some organic heart disturbance. Dr. William F. Lake, in March, 1934, made an x-ray picture of the heart, chest, and lungs of the insured. The above-stated evidence was undisputed. Further, the uncontradicted evidence was that in issuing the policy the defendant relied upon the representations made by the insured in the application.
In our opinion, the foregoing undisputed evidence demanded a finding that the insured made several material misrepresentations in her answers to the questions propounded in her application for the policy. The misrepresentations were material in that they changed the nature, extent, and character of the risk. Whether misrepresentations are material is ordinarily a question for the jury; but where, as here, the evidence excludes every reasonable inference except that they were material, no issue is presented upon that point for determination by the jury, and it is not necessary for the insurance company to show actual moral fraud on the part of the insured. Jefferson Standard Life c. InsuranceCo. v. Henderson, 37 Ga. App. 704 (141 S.E. 498); NationalLife Accident Insurance Co. v. Preston, 68 Ga. App. 614,616 (23 S.E.2d 526).
The court did not err in directing the verdict for the defendant.
Judgment affirmed. MacIntyre and Gardner, JJ., concur. *Page 8 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3404131/ | The verdict was authorized by the evidence, and the motion for new trial shows no cause for a reversal of the judgment.
DECIDED MARCH 12, 1940. REHEARING DENIED MARCH 26, 1940.
H. Grady James brought suit on a policy of life insurance in which his wife was named as the insured, and he as the beneficiary. The sole defense shown by the answer was that the plaintiff had executed a release which completely discharged the defendant from any and all liability on the policy. The jury *Page 388
returned a verdict in favor of the plaintiff for $249 as principal, $85.68 as interest, and $50 as attorney's fees. The defendant's motion for new trial (comprising the general grounds and several special grounds complaining of certain excerpts from the charge of the court) was overruled, and that judgment was assigned as error. As regards the general grounds, the sole question is, did the evidence show a signed release by the plaintiff that discharged the defendant from any liability onthe policy? In respect to this issue, the judge in his order denying a new trial made the following statement: "The plaintiff in part testified: `I signed the release on the policy the day my wife was buried, and the occasion for my signing was that Mr. Cooper [the agent of the defendant who solicited and delivered the policy] said he had to have it to get the insurance. . . When he gave me the dollar and I signed the paper, Mr. Cooper said he had to have some showing for the company, and he was going to take the paper to Atlanta and collect the $250. He said he would have to have the release before he could get the money; said he would have to turn it over to the company in order to get the money, and that was the reason I signed the receipt. I signed the release after I had surrendered the policy, about a week afterwards. Mr. Cooper said he had to have the release signed so he could get my money for me from his company . . I have never read the release until yet. When the application was made out Mr. Cooper asked me to sign it, and I did. I have been knowing Mr. Cooper for several years. . . I was notified that the company was not going to pay the insurance before I signed the release, but I signed it because Mr. Cooper said he had to have it. Mr. Cooper had told me that they were not going to pay, but when I signed that release he told me he was going to get the money for me anyhow. He didn't attempt to explain how he was going to get it, but said he had to have the release. He didn't say that the company had changed its attitude about paying me, but he said he was going to get it, said he would sue them himself. He simply misled me.' Cooper was not called as a witness. The quoted testimony of the witness [James] clearly establishes that he was inexperienced in insurance matters, and that he was literally following the requests of Cooper, the agent, as though he were a child, in first complying with his request to sign his wife's name to the application after Cooper had filled it out, *Page 389
and also in delivering the policy and the signed release settlement after the death of his wife. If Cooper, the general agent of the company, had not procured the signature of the plaintiff to the release settlement, there could be no question as to the company's liability to pay the indemnity named in the policy. That the plaintiff was misled by Cooper is therefore obvious. . . It is therefore my opinion that the case comes within the exception stated in the following rule of law: `It is a fundamental principle that one who can read must read; and the signing of a paper would be a waiver of representations alone as to the contents thereof. However, such representations as to the contents of a paper, coupled with a trick or artifice to procure the signing of the same, may constitute such fraud as would relieve the signer of the obligation thereunder.' Gossett v.Wilder, 46 Ga. App. 651 [168 S.E. 903]; Atlanta Life Ins.Co. v. Walker, 53 Ga. App. 80 [184 S.E. 776]. The company acted on the application made out alone by its general agent, Cooper. `One who solicits insurance, and represents the company in conducting the negotiations which lead up to the execution of the contract and subsequently in the delivery of the contract itself, is the general agent of the company, with reference to that particular contract. Relatively to it, he is as much the alter ego of the company as any other corporate officer.' GermanAmerican Life Association v. Farley, 102 Ga. 720, 735
[29 S.E. 615]; Johnson v. Aetna Ins. Co., 123 Ga. 404
[51 S.E. 339, 107 Am. St. 92]. . . This is the second verdict rendered in favor of the plaintiff."
We agree to the foregoing opinion of the able trial judge, and hold that the verdict was authorized by the evidence, and that the several excerpts from the charge, complained of, when considered in connection with the entire charge and the facts of the case, show no cause for a reversal of the judgment. The cases cited in behalf of the plaintiff in error which apparently show holdings contrary to the present ruling, are differentiated by their particular facts from this case.
Judgment affirmed. MacIntyre and Guerry, JJ., concur. *Page 390 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714970/ | 518 S.W.2d 942 (1975)
COIFFURE CONTINENTAL, INC., Appellant,
v.
Hans ALLERT, Appellee.
No. 18510.
Court of Civil Appeals of Texas, Dallas.
January 23, 1975.
Rehearing Denied February 20, 1975.
*943 Donald W. Keck, Keck & Barnes, Dallas, for appellant.
George M. McDonald, Kelsoe & Paternostro, Dallas, for appellee.
CLAUDE WILLIAMS, Chief Justice.
Coiffure Continental, Inc. brought this action in the district court seeking to enjoin Hans Allert from violating a covenant against competition contained in an employment contract between the parties. The trial court denied the relief sought and this appeal followed. We find that the trial court erred in refusing to grant temporary injunction and, therefore, reverse the judgment.
At all times relevant to this case, Coiffure Continental, Inc. operated three places of business in Richardson and Dallas engaging in hairdressing for women. One of its shops is located at 210 Northpark in Dallas, where it employed approximately fifteen hairdressers. Gunther Sperling is president and general manager of the corporation. On November 1, 1963, following negotiations, the corporation entered into a written employment contract with Hans Allert, then a resident of Germany, in which Allert agreed to be employed by Coiffure Continental, Inc. as a hairdresser. The contract contained the following provision:
EMPLOYEE further agrees that he will not individually nor with any other person working or not working for said firm, for a period of TEN (10) MONTH immediately following his resignation as an EMPLOYEE for said firm for any reason or disagreement whatsoever open-work-or assist in any beauty salon within the radius of TEN (10) miles from any beauty salon in which EMPLOYEE had worked longer than (2) months, and such beauty salon is owned by COIFFURE DE CONTINENTAL INC. or COIFFURE D' EUROPE.
The contract also provided a guaranteed minimum of $400 per month and a 50% commission of all gross proceeds in excess of $800 produced as a result of Allert's services.
Allert came to the United States and started his employment for the corporation *944 pursuant to such contract in February 1964, and was assigned to the Northpark salon. He continued this employment without interruption for more than ten years. On August 18 or 19, 1974, the employment relationship was severed and Allert admits that he then entered into a competitive hairdressing business within the ten-mile radius designated in the contract. This action was then instituted by the corporation to restrain Allert from violating the noncompetitive agreement.
In defense of the action, Allert took the position that the 1963 contract of employment had been revoked by a subsequent agreement made between the parties in 1967. We hold that the subsequent agreement did not revoke the original contract.
On January 1, 1967, Allert and the corporation entered into a written agreement in which the corporation agreed to pay Allert a bonus of $80 for completing three full years of working for the company, ending February 28, 1967, and thereafter agreed to pay Allert a "five percent additional commission from income received through services performed by employee." As originally drawn, this agreement provided that the first $1,000 of said bonus and commission should be a "guarantee deposit" held by employer and released only to employee upon compliance with the following agreements: "(1) To give a written notice when resigning of at least four months, before leaving present employment; (2) To comply and agree with all articles signed in employment contract; and (3) Not to take away any employees working for Coiffure Continental for at least nine months after resigning." The second provision above quoted was deleted prior to execution of this agreement.
On the trial of the case Allert testified that he had specifically requested that the second provision of the agreement be deleted, saying:
I asked him for to strike it out because I wanted to be completely out of that contract and we want to make a new contract and that's what he promised me.
By this testimony, appellee Allert contends that the entire 1964 contract was revoked by mutual agreement and that the 1967 agreement is related to the older agreement only with reference to the basis for compensation. Accepting the testimony of Allert, as the trial judge must have, this places the dealings between the parties in the following context: (1) They have an operative legal relationship under the 1964 agreement; (2) Allert becomes dissatisfied; (3) The corporation and Allert agreed to terminate the 1964 contract and increase defendant's compensation; and (4) The parties execute the 1967 agreement. The question thereby presented is whether all prior and contemporaneous oral agreements are considered merged into the 1967 agreement. If so, this would have the effect of excluding Allert's testimony that the corporation orally agreed to terminate the 1964 contract inasmuch as there is no reference or inference in the 1967 instrument concerning such termination. We conclude that this parol testimony was not admissible.
In resolving the question, we find the rule with respect to the proof and enforcement of collateral agreements to have been stated by Justice Calvert in Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 33-34 (1958). Speaking for the Supreme Court, he followed the rule, as found in Restatement of Contracts § 240 (1932):
(1) An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, nor a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and
(a) is made for separate consideration, or
(b) is such an agreement as might naturally be made as a separate *945 agreement by parties situated as were the parties to the written contract.
Assuming that the alleged oral revocation of the 1964 contract is consistent with the 1967 instrument, such oral agreement clearly does not fall within subsection (a) of the above-stated rule because no additional consideration beyond retention of Allert's services was provided for the revocation agreement. Accordingly, we must consider if the oral agreement "might naturally be made as a separate agreement by parties situated as were the parties to the written contract." We think not. As Hubacek notes, "[I]t is more than normally natural that agreements will be made collaterally to the execution of negotiable instruments because to include them would destroy negotiability." There is no such reason for omission of the agreement in this instance. Allert testified that he wanted completely out of the 1964 contract when he executed the 1967 agreement. From the beginning, he had worked under a written contract. It does not seem "natural" to us that when they signed the subsequent agreement, which provided additional compensation, the parties would make an oral agreement revoking the former agreement without mentioning such revoking agreement and would leave all the terms of the employment, other than those concerning the additional compensation, to rest on the oral understanding. It is extremely doubtful that Allert would revoke that contract and execute the 1967 agreement providing for an additional five percent commission, without mentioning the fifty percent commission which produced the major portion of his income for the majority of the ten years he was employed by the corporation. Therefore, the parol evidence rule precludes the enforcement of the contemporaneous agreement revoking the 1964 contract. Accordingly, we hold that the 1964 contract remains effective, as amended by the 1967 agreement.
Allert argues that the deleted portion of the 1967 instrument demonstrates the intent of the parties to revoke the 1964 contract. We cannot agree with this contention inasmuch as the portion of the 1967 agreement that had been stricken was merely a condition to be fulfilled before the corporation released the $1,000 to Allert. Such removal of the provision can in no sense be held to be an absolute revocation of the 1964 contract.
Allert also contends that the covenant not to compete is inoperative because the corporation fired him and the quoted covenant is only operative following his resignation. The testimony presented in this record is clear as to what actually happened prior to the time Allert left the employment of the corporation. Allert testified that prior to August 18, 1974, he had already signed a proposed lease agreement on property he intended to use as a beauty shop within the proscribed territorial restriction of the noncompetitive covenant. He further testified that he had made a bank loan application in order to finance his new endeavour and that he had ordered printed announcements to be mailed out to prospective customers, including customers of the corporation. Both Allert and Sperling, the latter on behalf of the corporation, testified that on August 18, 1974, (Sunday), Sperling called Allert and they arranged a meeting at the Northpark salon. At that time Sperling told Allert that he knew of Allert's preparation to open his own shop and if he was going to compete with the corporation, he should terminate his employment with the Northpark store at that time. On Monday, August 19, 1974, which normally would be his day off, Allert gave Sperling the keys which he had used and received a check for the balance of his earnings in return. Sperling testified he informed Allert at that time that if the bank loan fell through Allert could return to his work with the corporation on Tuesday. The bank loan did not fall through and Allert never returned to the corporation's employment. *946 Regardless of what Allert may have said about being "fired," we construe these facts to clearly demonstrate that Allert chose to leave the corporation's business. Allert had the clear choice to remain (1) on Sunday, August 18, 1974, by not competing with the corporation, and (2) on Monday, August 19, 1974, by giving assurances of his intention not to compete and by coming to work on schedule. By his failure to return to work with the corporation, Allert clearly made his choice which constitutes his resignation pursuant to the terms of the 1964 contract.
In any event, we are not convinced that the provisions of the agreement of 1964 only apply in the event of resignation of the employee. It is expressly provided that the employee agrees that he will not compete for a period of ten months within the radius of ten miles "immediately following his resignation as an employee of said firm for any reason or disagreement whatsoever ...." The word "disagreement" would indicate that any dispute or lack of understanding between the parties resulting in cessation of employment would bring into play the noncompetitive provision.
It is now well established that contracts ancillary to employment involving trades or professions which provide for agreements against competition are enforceable, though amounting to limited restraint of trade, where such contracts are reasonably limited as to time and space. Krueger, Hutchinson & Overton Clinic v. Lewis, 266 S.W.2d 885 (Tex.Civ.App. Amarillo), affirmed, 153 Tex. 363, 269 S.W.2d 798 (1954); Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960); Restatement of Contracts §§ 515, 516 (1932). Allert makes no complaint either in the trial court or before this court that the territorial and time limitations are unreasonable so we need not consider this question.
It is also an essential element of such noncompetitive contracts that the covenant not to compete be reasonably incident to the contract of employment and essential to the protection of the employer's business and goodwill. Toch v. Eric Schuster Corp., 490 S.W.2d 618 (Tex.Civ. App.Dallas 1972, writ ref'd, n. r. e.). The record before us demonstrates conclusively that Allert violated the terms of the noncompetitive agreement by entering a similar business within an area of less than ten miles from the business of the corporation, and continues to do so without restraint. It is also evidence that such competition by Allert constitutes an invasion into the business of the corporation and that such should not be allowed. We find, and hold, that the trial court abused its discretion in refusing to grant the injunctive relief sought by appellant corporation.
The judgment of the trial court is reversed and here rendered that Hans Allert be and is hereby restrained from engaging, directly or indirectly, in the practice or business of hairdressing or cosmetology within a radius of ten miles of any location or business owned by Continental Coiffures, Inc. in Dallas or Richardson, Texas, and is further enjoined from soliciting or diverting the business of any customer of Continental Coiffures, Inc. to Allert's benefit or to that of any competitive beauty salon, such injunction to remain in force and effect pending final hearing on the merits of this cause now pending in the district court of Dallas County, Texas, but in no event beyond the period of ten (10) months following August 19, 1974.
Prior to issuance of mandate herein, Coiffure Continental, Inc. shall execute and file with the clerk of this court a bond payable to Hans Allert, with two or more good and sufficient sureties, to be approved by the clerk of this court in the amount of $5,000, conditioned as required by the terms of Texas Rules of Civil Procedure, rule 684.
Reversed and rendered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3404176/ | 1. "It is now unquestioned that a witness may testify that statements made over a telephone were statements of the accused, where the witness is able to recognize the voice." 1 Wharton Criminal Ev. (11th. Ed.), § 267 (7), p. 330, 332, and § 267 (4), p. 330, 331. In the only special ground of the motion for a new trial the objection is raised that the testimony of the prosecutrix, who testified that she recognized the voice of the accused, was a conclusion and inadmissible. This ground is not meritorious. See, in this connection, People v. Strollo, 191 N.Y. 42 (83 N.E. 573); State v. Usher, 136 Iowa 606 (111 N.W. 811). *Page 206
2. As to the general grounds, the question is whether or not the prosecuting witness was able to recognize the voice of the defendant over the telephone. Held: The evidence in the instant case relative to the identification and recognition of the voice of the defendant over the telephone by the prosecutrix is equally as strong, if not stronger, than the evidence of identification and recognition of the voice of the defendant over the telephone in the case of McClung v. State, 62 Ga. App. 892 (10 S.E.2d 303). The evidence was sufficient to authorize the jury to find that the prosecuting witness recognized the voice of the defendant over the telephone, and under the evidence as a whole they were authorized to find the defendant guilty as charged.
3. The trial judge did not err in overruling the defendant's motion for new trial, and the evidence authorized the verdict.
Judgment affirmed. Parker and Townsend, JJ.,concur.
DECIDED MAY 28, 1947.
STATEMENT OF FACTS BY MacINTYRE, P. J.
The defendant, Arthur Taylor, was indicted for the offense of using profane, vulgar, and obscene language without provocation in the presence of a female in violation of Code, § 26-6303. The jury found the defendant guilty, and the defendant filed a motion for new trial on the general and one special ground which was an elaboration of the general grounds. The trial judge overruled the motion, and the defendant excepted.
From the evidence it appears that the prosecutrix received seven or eight telephone calls at her home from a man who used abusive or obscene language. She did not recognize the voice, and the caller did not reveal his identity. After discussing the matter with the sheriff and the solicitor-general, she agreed to make an appointment to meet the caller at a specified time and place. When the person called the prosecutrix the next time, a meeting was arranged. The sheriff concealed himself in the rear of the prosecutrix's automobile. The defendant drove by the automobile and stopped. He approached the car and asked the prosecutrix about the bus and train schedules. When the defendant noticed the sheriff in the rear of the automobile, he started to walk off. The sheriff got out of the car and asked the defendant several questions about his driver's license and identification. The defendant was then arrested and placed in jail. The sheriff called the prosecutrix and asked her to call the defendant at the jail on the telephone. This was accomplished, and the prosecutrix testified *Page 207
that the "voice I talked to some twenty minutes after he was arrested was the same voice that called me that morning, that I made this date with, and I am positive it was," and "that is the same voice that called me some seven times and used this language you read out of the indictment."
Evidence was introduced by the defendant to show that he could not have made the telephone call at the time the appointment was made with the prosecutrix, that his general reputation was good, and that he had valid reasons for being at the place where he was arrested. The jury resolved the conflicting evidence adversely to the defendant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4567089/ | 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 September 17, 2020 *
Decided September 18, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-1404
JOAN PANSIER and ESTATE OF GARY Appeal from the United States District
PANSIER, Court for the Eastern District of Wisconsin.
Debtors-Appellants,
v. No. 19-C-1431
UNITED STATES OF AMERICA, William C. Griesbach,
Creditor-Appellee. Judge.
ORDER
Joan Pansier challenges a district court’s order affirming a bankruptcy court’s
denial of damages for an alleged violation of a stay on collecting debts. Because she and
her husband Gary (who died several months ago) did not timely appeal the bankruptcy
court’s decision, we vacate the district court’s judgment and remand with instructions
to dismiss that appeal for lack of jurisdiction.
*
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. 20-1404 Page 2
Gary and Joan Pansier wanted to appeal a bankruptcy court’s ruling. They had
filed for Chapter 7 bankruptcy in 2018, and the automatic stay associated with the filing
prevented the Internal Revenue Service from levying a portion of Gary Pansier’s
pension to satisfy their tax liabilities. See 11 U.S.C. § 362(a). The bankruptcy court
granted the United States’ motion for relief from the stay. Although any order granting
relief from an automatic stay is itself stayed for two weeks, see FED. R. BANKR. P.
4001(a)(3), just days after the court granted the motion the IRS issued a notice of levy to
resume collecting the pension. In July 2019 the Pansiers moved for damages based on
the notice of levy, see 11 U.S.C. § 362(k), and argued that the IRS had been collecting
more from the pension than the bankruptcy court had permitted. The bankruptcy court
denied relief on August 19, 2019. It ruled that, although the notice of levy violated the
stay, the Pansiers had suffered no damages and the IRS had thereafter collected the
proper monthly amounts from the pension. The Pansiers filed a notice of appeal on
September 30, 2019—42 days later. The government did not argue that the appeal was
untimely, and the district court affirmed the bankruptcy court’s decision on the merits.
The United States now argues that the district court lacked jurisdiction to review
the bankruptcy court’s decision. We agree. A notice of appeal must be filed within
14 days of a bankruptcy order. The 14-day rule comes from Federal Rule of Bankruptcy
Procedure 8002(a)(1) and implements the statutory directive from 28 U.S.C. § 158(a)(1).
We held in In re Sobczak-Slomczewski that this 14-day appeal period is therefore
jurisdictional and mandatory. 826 F.3d 429, 432 (7th Cir. 2016). The Pansiers filed their
notice of appeal 28 days after the deadline, so the district court never possessed
jurisdiction over the bankruptcy court’s order. See id. Because the district court had no
jurisdiction over the appeal, we must vacate its judgment and remand with instructions
to dismiss. See Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 639 (1949);
Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 818 (7th Cir. 2014).
We add two final observations. First, we recognize that the government did not
raise this jurisdictional defect in the district court and, consequently, that court believed
that it had jurisdiction. But under the jurisdiction-granting statute, 28 U.S.C. § 158,
failure to file a timely appeal deprives a district court of jurisdiction regardless of
whether the parties raise the issue. In re Sobczak-Slomczewski, 826 F.3d at 431–32. Neither
the district court nor this court can make equitable exceptions to jurisdictional
requirements. Bowles v. Russell, 551 U.S. 205, 214 (2007). Second, Joan Pansier tells us
that she wishes to represent her husband’s estate in this matter. A non-lawyer may not,
however, represent an estate (unless the non-lawyer is the sole beneficiary, a point that
Joan does not clearly resolve for us). See Malone v. Nielson, 474 F.3d 934, 937 (7th Cir.
No. 20-1404 Page 3
2007). No matter; there is no mandatory priority among reasons not to reach the merits
of a case. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007).
Our decision about the untimeliness of the bankruptcy appeal renders any potential
representational issue irrelevant.
We thus VACATE the judgment and REMAND to the district court to DISMISS
the appeal from the bankruptcy court for lack of jurisdiction. | 01-03-2023 | 09-21-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4567094/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ERIC HILLER,
Appellant,
v. : C.A. No. $19A-10-001 RFS
THE CITY OF REHOBOTH
BEACH,
Appellee.
ORDER
Submitted: 8/14/2020
Decided: 9/18/2020
Robert C. McDonald, Esq., 1010 N. Bancroft Parkway, Suite 22, Wilmington, DE 19805,
Attorney for Appellant.
Daniel A. Griffith, Esq., 405 N. King Street, Suite 500, Wilmington, DE 19801, Attorney
for Appellee.
I. INTRODUCTION
Before the Court is Eric Hiller’s (“Hiller”) writ for mandamus.! The Court heard oral
argument on August 14, 2020 and reserved decision. For the reasons that follow, Hiller’s petition
is denied.
Il. FACTUAL AND PROCEDURAL HISTORY
At all times relevant, Hiller was a police officer with the Rehoboth Beach Police
Department (“RBPD”) in Rehoboth, Delaware. The matter currently before the Court arises from
an internal investigation administered against Hiller stemming from events that transpired during
the transport of a prisoner.
Hiller originally filed a writ for certiorari, however, it is clear from the briefing and oral argument he is seeking a
writ of mandamus and not a writ certiorari.
RBPD initiated an internal investigation. Hiller was charged with several violations of the
Rehoboth Beach Police Department professional standards during an interview, dishonesty and
violations of written directions.
In July 2018, Hiller was advised that he must complete a computer voice stress analyzer
exam (“CVSA”) so that the RBPD might examine the truthfulness of Hiller’s statements made
during his initial interview involving the events of the prisoner transport. On or about November
30, 2018, Hiller was requested to take a CVSA. An investigator and CVSA examiner, Mike
McQuillen (“McQuillen”), was selected to administer the CVSA and Lt. Jaime Riddle (“Riddle”)
was present. Hiller’s wife accompanied Hiller to the CVSA. Riddle asked Hiller and his wife if
they were recording the examination, which is prohibited.” Hiller’s responses to Riddle before
the CVSA was started were indirect and circuitous.’
Investigator: Well you are refusing because J am asking you questions...
Hiller: You asked me and I answered it.
Investigator: Is anyone other than me recording this interview? I am asking you
that question.
Hiller: Just as you stated right there, I am permitted to ask questions as it relates
to my job. Correct?
Investigator: Is anyone in this room besides me recording this interview?
Hiller: Not me and I don’t know whether that is the only recording he has, I have
no idea...
Investigator: To your knowledge is anyone else in this room besides me and Mr.
McQuillen....
Hiller: I am prepared to go forward.
Investigator: I asked you a question. Besides me and Mr. McQuillen, is there
anyone in this room to your knowledge...
Hiller: I can speak for myself and me and I am here prepared to go forward. I am
here willing to do the interview as asked. I have complied with everything that I
am responsible for. And I am here to proceed forward. And if suddenly now you
are trying to use me as that I am refusing to do what is asked of me.
Investigator: You are making this complicated.
* The Confidentiality Mandate signed by Hiller, dated January 26, 2018, provides that “Principals and/or witnesses
are not permitted to record, audio or video, any professional standards interviews or proceedings.”) Appellee’s
Answ. Br. Ex. B.
3Appellee’s Answ. Br. Ex. D.
Hiller: J am not making it complicated.*
Following the above colloquy, Hiller announced he would like to seek counsel and the
interview was ended and postponed. McQuillen administered the second CVSA on or about
January 25, 2019. During this second CVSA, Hiller was also questioned about recording the first
scheduled CVSA. Again, Hiller’s wife attended.
Hiller faced the following charges: (1) Count I - Rule 800 - Professional Standards
Investigations”, (2) Count II - Rule 400 - Dishonesty, and (3) Count III - Rule 302 - Rules of
Conduct (Violations of Written Directions). Hiller requested a hearing before the disciplinary
board. On April 29, 2019 and May 14, 2019, the disciplinary hearing took place before the
Disciplinary Hearing Panel (“the Panel”). The Panel was made up of a three-member trial board
selected by the Criminal Justice Council under authority of 11 Del. C. § 9205(b).° On July 12,
2019, the Panel issued its decision.
The Panel found Hiller was not dishonest but was circuitous and semantical. The Panel
determined the evidence supported Count I. The Panel concluded that Hiller failed to answer
questions and render relevant statements.’ More specifically, the Panel found the question
regarding Hiller’s wife recording to be a “simple question” to answer and Hiller failed to answer
the questions in a “straightforward manner.”*® The Panel concluded that there was no evidence in
4 Appellee’s Answ. Br. Ex. D
> Rule 800 provides that “Employees are required to answer questions and render material reports and relevant
statements in a professional standard investigation when so directed” and “Employees will submit to a Computer
Voice Stress Analyzer if requested in accordance with state statutes and department policies.” Appellee’s Answ. Br.
Ex. C.
® 11 Del. C. § 9205 provides in relevant part:
The hearing shall be conducted within the department by an impartial board of officers. The
prosecuting party and the officer and/or the officer's representative shall be given an opportunity
to present evidence and argument with respect to the issues involved. Both the department and the
officer may be represented by legal counsel. In the event an impartial board cannot be convened,
then a board of 3 officers or more shall be convened under the auspices of the Delaware Criminal
Justice Council.
7 Appellee’s Answ. Br. Ex. A.
8 Id. at 37-38.
the record that Hiller was dishonest or conspired with his wife to record the interview. Therefore,
Hiller was found to have committed Count I, but not Counts II and ITI.
The Panel also found RBPD violated Hiller’s The Law-Enforcement Officers' Bill of
Rights (“LEOBOR”). These violations included insufficient notice of the CVSA,? allowing an
outside contractor to question Hiller'®, and questioning Hiller for an unreasonable amount of
time.
On or about September 20, 2019, Hiller was discharged. Hiller appealed his termination
to the City. Pursuant to Section 11 of Rehoboth Beach Police Departmnet General Order 262A,
the Mayor and Commissioners consider whether the Chief’s decision to terminate Hiller was
just.'! Hiller’s discharge was upheld by the City.
Hiller filed a petition for mandamus, asking this Court to reinstate him to his position as
police officer. Oral argument was heard on August 14, 2020, and the Court reserved decision.
This is the Court’s decision.
Ill. PARTIES’ CONTENTIONS
Hiller contends his rights were violated as a matter of law and fact when he was
terminated as a police officer with Rehoboth Beach Police Department. Hiller argues there were
LEOBOR violations throughout the course of the investigation and, therefore, Hiller’s
termination was in error. Hiller also argues his termination was in error because the Panel found
Hiller was not dishonest and a writ of mandamus reinstating him to his position is the appropriate
remedy.
° LEOBOR requires notice in writing of the nature of the investigation prior to being questioned. Hiller received
notice of why he was being directed to submit to a CVSA the same day it was to be administered. The Board found
notice immediately preceding the investigation to be improper. Jd. at 40.
'° McQuillen was not employed by the department, nor did he hold a Delaware Council on Police Training
certification. /d.
™ Appellee’s Answ. Br. Ex. G.
Hiller argues the violation he was found guilty of took place during the CVSA.'* Because
the Panel determined the CVSA was in violation of Hiller’s LEOBOR protections, the evidence
obtained during the CVSA cannot be used to support a finding of guilt. Hiller also argues that his
termination is inconsistent with the Panel’s finding of no dishonesty. Therefore, Hiller argues
RBPD, RBPD Chief of Police Keith Banks, the Mayor and the Town Council could not
terminate Hiller.
Hiller contends the actions mandated under LEOBOR are ministerial, rather than
discretionary; therefore, mandamus is proper.
RBPD argues mandamus is not the appropriate remedy because there are other remedies
available to Hiller. RBPD also contends mandamus is not appropriate because Hiller’s
termination was a discretionary act as the Chief had discretion to choose the type of discipline
for Hiller. RBPD also argues Hiller offers no meaningful evidence that he was not guilty of
Count I, and Count I allows for termination.
IV. DISCUSSION
Mandamus is an exceptional remedy that is not available as a matter of right.'? “A writ of
mandamus may be issued by the Superior Court to command a lower court, agency, or public
official to perform a duty ‘to which the petitioner has established a clear legal right.’”!4 “A writ
of mandamus will not issue, however, unless the petitioner can establish that there is no other
adequate remedy available.” When another remedy is available, the Court will deny
mandamus. !°
'2 However, the Rule 800 conviction, as later explained, arose immediately before the first scheduled CVSA, which
was not administered.
3 Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015).
4 Td. (citing Clough v. State, 686 A.2d 158, 159 (Del.1996)).
'S Haden v. Bethany Beach Police Dep't, 2014 WL 2964081, at *6 (Del. Super. Ct. June 30, 2014).
At the August 14, 2020 oral argument, counsel and the Court discussed whether there
were other remedies available. Throughout the colloquy, counsel agreed there were other
avenues Hiller could take.'® As a matter of law, other remedies were available to Hiller;
therefore, the Court declines to exercise the exceptional remedy of mandamus.
Even if the Court were to consider Hiller’s petition on the merits, the Court would still
decline to exercise its authority and grant mandamus. Hiller contends the Panel’s findings of
dishonesty and LEOBOR violations warrant a finding his termination was in error. The Panel
found Hiller violated Rule 800 — a Class A offense. The Panel based the finding on Hiller’s
behavior during the pre-CVSA colloquy after a hearing where Hiller had his “day in court” to
contest this aspect of his behavior. The Panel found Hiller did not commit the other charges,
giving consideration to the LEOBOR violations. A Class A offense allows for termination as a
possible punishment. Although Hiller could have received a lesser punishment, termination was
still an available discretionary option.
Although termination was an appropriate punishment choice for a Rule 800 violation,
Hiller contends the LEOBOR violations warrant reversal of his termination.'’ The Panel found
multiple LEOBOR violations; however, not every LEOBOR violation will support issuance of
mandamus.!®
16 Tr, 10:2-6 (Mr. McDonald stated Hiller “could bring a claim in Chancery Court seeking a property interest for
injunctive order but ultimately restoring to his duty.”); Tr. 11:18-12:4; Tr. 55:13-56:4.
'” Reference is made to 11 Del C. § 9206, which provides:
No evidence may be obtained, received or admitted into evidence in any proceeding of any
disciplinary action which violates any of the rights established by the United States Constitution or
Delaware Constitution or by this chapter. The tribunal may not enter any judgment or sustain any
disciplinary action based on any evidence obtained in violation of the officer’s rights as contained
in this chapter.
However, Hiller’s pre-CVSA statements are different from what is contemplated by section 9206. The exchange that
the Panel found supported Charge I was merely preliminary, and the charge of Rule 800 arose from his evasive
responses. Appropriately, the meeting was ended.
18 See Smith v. Dep't of Pub. Safety of State, 1999 WL 1225250, at *13 (Del. Super. Ct. Oct. 26, 1999), aff'd, 765
A.2d 953 (Del. 2000). See also Brittingham v. Town of Georgetown, 113 A.3d 519, 528 (Del. 2015) (“this Court has
Hiller received a hearing and the Panel absolved him of dishonesty and conspiracy,
noting the LEOBOR violations. Ultimately, Hiller was terminated because of the pre-CVSA
colloquy, which was preliminary in nature. Hiller knew he was being investigated concerning the
transport of the prisoner and would have to submit to a CVSA. Further, he brought his wife as
his representative to the CVSA. Hiller was circuitous and semantical when asked whether he or
his wife were recording the interview. Recording the interview is prohibited, and Hiller knew
that prohibition.'?
In certain circumstances, mandamus may address LEOBOR violations, including
reinstatement; however, the violations must be substantial in nature.2? LEOBOR violations that
do not rise to the level of procedural or substantive due process violations do not warrant
mandamus.”! For example, failing to schedule a hearing and preventing an officer to be heard
would be such a violation for mandamus.” The violations put forth by Hiller are mere technical
ones. Hiller received a hearing and was aware of the charges against him. Hiller was further
afforded an appeal of the Chief’s decision to terminate him. The Court finds Hiller does not
allege violations “sufficiently egregious or compelling to warrant the Court interjecting in the
routine disciplinary proceedings of a state agency.””?
also affirmed the trial court's denial of mandamus relief when any violations were technical in nature and there was
no prejudice to the officers involved....”).
'9 Hiller signed a document, dated January 26, 2018, putting him on notice that principals and witnesses are not
permitted to record the interview. Appellee’s Answ. Br. Ex. B.
?° In Smith, the plaintiff set forth several LEOBOR violations, including lack of notice prior to being questioned;
however, the Court found the violations technical and decline to exercise jurisdiction over the matter pursuant to a
writ of mandamus. 1999 WL 1225250 at *12-13.
21 Smith, 1999 WL 1225250 at *13 (The court stated: “The LEOBOR violations set forth in Plaintiff's complaint are
technical in nature. The Complaint does not allege violations which rise to the level of procedural or substantive due
process violations.”).
22 See Id.
3 Id. at *13. See also Brittingham v. Town of Georgetown, 2011 WL 2650691, at *4 (Del. Super. Ct. June 28, 2011),
aff'd, 113 A.3d 519 (Del. 2015).
V. CONCLUSION
Considering the foregoing, even assuming mandamus is available, the Court declines to
exercise its discretion on the present record. Therefore, Hiller’s petition is denied.
IT IS SO ORDERED.
dF. Stokes, Judge
bS Ed Bl d38 OZ
ALNAOI K3SSNS
AYUVLONOHLOYd G34 | 01-03-2023 | 09-21-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3404175/ | The special assignments of error are without merit. The evidence supported the verdict. The court did not err in overruling the motion for new trial.
DECIDED NOVEMBER 16, 1940.
The undisputed evidence shows that a shipment of flour, 700 bags in two cars of 350 bags each, originating in Tacoma, Washington, arrived in Atlanta, Georgia, sealed in cars of the plaintiff in error (called defendant) in a damaged condition. The shipment traveled from Tacoma to Charleston, South Carolina, by boat, where it was unloaded and reloaded on cars of the defendant. The cars moved from Charleston to Waycross, Georgia, over the defendant's tracks, and thence in the same cars to Atlanta over the A., B. C. Railway Company. The jury found the shipment to have been damaged in the amount of the verdict, $1145. There is no denial that the flour was damaged by the absorption of some foreign chemical, but how, where, and at what point the damage occurred is disputed both by contentions and in some particulars by the evidence. The testimony for the plaintiff was to the effect that the flour was ordered as a part of a larger shipment, and that when it arrived it was as ordered except that it was tainted by odor and fumes in the two cars in which it moved, for which reason it was rejected, though later purchased in its damaged condition at $2075. The testimony for the defendant was to the effect that when the flour was loaded in the cars at Charleston the cars were *Page 612
inspected for nails, trash, and odor, and that the cars were perfectly clean and sweet. Construing this evidence most strongly in favor of the jury's verdict, we find that the damage occurred after the shipment had been loaded into the defendant's cars in Charleston, and from there in transit to Atlanta, by reason of some foreign chemical substance within the cars. There is sufficient evidence to support the verdict, and we hold against the assignments of error in grounds 1, 2, and 3.
We turn next to consider the assignments of error in grounds 4 to 13, inclusive. It is well to state that this case was brought to this court by a direct bill of exceptions assigning error on a judgment of the lower court sustaining a demurrer to the petition as amended. This court reversed that judgment and held the petition good. Sperry Flour Co. v. Atlantic Coast Line R. Co.,54 Ga. App. 725 (189 S.E. 278). An application to the Supreme Court for certiorari was denied. The law of the case was thereby fixed, and we might here reiterate that the evidence sustained the allegations of the petition as amended. We will not here repeat these allegations. Counsel for the plaintiff in error argue "that some of the language of this court's opinion is obiter dicta, and not necessary to the decision that a cause of action was set forth in the petition," and move to reconsider the case and confine the language of the decision to the points necessary to the judgment. We think what was there said is pertinent to the judgment written. If it be true that under the allegations this is not a suit for breach of the contract of carriage under an interstate shipment, it is nevertheless true that it is a suit for a tort, planted on and growing out of such a contract.
Assignments of error in grounds 4, 5, 6, 7, and 8 are on the charge of the court to the jury, as follows: (4) "I charge you that the Sperry Flour Company was under the protection of the interstate-commerce law, which controlled every phase of the transportation of the flour from Tacoma, State of Washington, to Atlanta, Georgia; and such law made every service rendered in the transit of said flour, including the furnishing of suitable cars for the shipment, an interstate-commerce service. That the law did not require the Sperry Flour Company to know anything about the Port Utilities Commission to which the Atlantic Coast Line furnished the cars. The furnishing of the cars was a matter of interstate commerce *Page 613
routine, with which the Sperry Flour Company had no concern. I charge you that the defendant admits that the flour was shipped from Tacoma, State of Washington, to Atlanta, Georgia. I charge you that this was an interstate-commerce shipment." (5) "I charge you that if the defendant furnished two of its cars to the Public Utilities Commission, that if the two cars were needed for the transportation of the flour from Charleston to Waycross, and thence over the Atlanta, Birmingham and Coast Railroad to Atlanta, that if the flour when loaded in defendant's cars was in good condition, that if the Atlanta Flour and Grain Company opened the cars and then discovered that the cars were filled with fumes from some kind or kinds of chemicals, and fumes had tainted the flour to such extent as to materially damage same, and that if the cars when furnished contained noxious chemicals of some sort which produced said fumes during the days and nights consumed in the transportation and delivery of said cars to and at Atlanta, that on account of said flour being tainted, if so tainted, the Atlanta Flour and Grain Company refused to accept and pay for the said flour, then the Sperry Flour Company would be entitled to recover compensatory damages equal to the injury sustained by said flour on account of such damages claimed solely by reason of the tainting of said flour, provided you find that it was so tainted." (6) "I charge you further, that the term `transportation' in this case includes cars, irrespective of ownership, and irrespective of any contract for the use thereof, and all services in connection with the receipt, delivery, and transfer in transit, and handling of the property transported." (7) "I charge you that it is immaterial whether or not all of the alleged damages may have matured on defendant's railroad. The defendant is liable as a connecting carrier for whatever damage that may have been sustained in this interstate shipment, if the damage was the result of the defendant's negligence, though the shipment, locked and sealed, also passed over the Atlanta, Birmingham and Coast Railroad on its way to destination at Atlanta." (8) "If you should believe, gentlemen, that the entire damage to the shipment resulted solely from defendant's own negligence in furnishing defective cars filled with noxious chemicals and fumes, as alleged in the petition, for the transportation of the flour for the entire journey from Charleston to Atlanta, a considerable part of the journey being over its own *Page 614
railroad, and the flour being damaged solely by the noxious chemicals and fumes, if you should so find, then the defendant would be liable in damage in this case." These charges were adjusted to the evidence in the case, were in accordance with the law of the case as announced in Sperry Flour Co. v. Atlantic Coast Line R.Co., supra, and were not erroneous for any of the reasons assigned.
Error is assigned in ground 9 on the court's refusal of a request to charge as follows: "I further charge you that the uncontroverted evidence shows that the initial rail carrier who issued the bill of lading is the Port Utilities Commission, a common carrier operating a railroad connecting the docks and wharves of Charleston, South Carolina, with the lines of railroad entering Charleston, South Carolina; that under the law the duty of furnishing cars for the transportation of this shipment was on the Port Utilities Commission as such initial carrier; and if you find as a fact that this defendant furnished a string of cars, that is, more than two cars, any two of which were suitable for shipment of this nature, and that from this string of cars the two selected were improper cars, the liability, if any, would be on the initial rail carrier." The request, aside from being argumentative, was inapplicable.
Ground 10 complains of the charge as a whole. The charge was adjusted to the facts and substantially covered the principles of law announced by this court when the case was here before.
Ground 11 assigns error on the admission of what purported to be the Code of South Carolina, fixing the status of the Public Utilities Commission, and showing that it was not a common carrier under the laws of that State. This evidence was offered in rebuttal of parol testimony of the plaintiff, to the effect that this concern was a common carrier. If this question was material — and we do not think it was, under the facts of this case, we must hold that the evidence was not inadmissible for any reason assigned.
Grounds 12 and 13 assign error upon the court's refusal to grant a nonsuit and to direct a verdict, respectively. As to ground 12, an assignment of error on the refusal of a motion to grant a nonsuit has no place for consideration by this court, where, after the overruling of such motion, the case proceeds to trial, and a verdict is returned in favor of the plaintiff, and a motion for new trial is filed by the defendant. Kalas
v. Fay, 31 Ga. App. 109 (2) (120 S.E. 28); GeorgiaGranite Cor. v. Union Granite Co., *Page 615 31 Ga. App. 261 (4) (120 S.E. 547); Avant v.Hartridge, 45 Ga. App. 644 (2) (165 S.E. 924); Smith
v. Barr, 32 Ga. App. 53 (122 S.E. 626). As to ground 13, it is not error to refuse to direct a verdict.Scarborough v. Edgar, 176 Ga. 574 (6) (168 S.E. 592);Council v. Nunn, 41 Ga. App. 407 (2) (153 S.E. 254).
Outside of the position of plaintiff in error that the evidence failed to establish the fact that the flour was damaged after being loaded into its cars, it has another contention. The thread of this argument or contention runs throughout the record, as well as the brief and argument of the plaintiff in error. It is to this effect: that the plaintiff in error owed the defendant in error no duty to furnish cars, and that this duty was owed to Sperry by the initial carrier. Therefore the plaintiff in error, owing no duty, could be held responsible for no negligence. This is wherein this court differs with the position of able counsel for the plaintiff in error, both in the instant case and when it was here before. If the plaintiff in error owed no such duty, but assumed this duty from the shoulders of another, at the request of another, or with another, it then stepped into all the responsibilities of performing that duty without damage to another's property. If it assumed the duty of furnishing cars when it was not under any obligation to do so, it was bound, under the law, to furnish suitable cars for the purposes intended. Its own evidence shows that it did furnish these cars, alone or in conjunction with another, and the evidence is sufficient to show that the cars were unfitted for the purpose of shipping flour, and that the defendant in error was thereby damaged.
This being the first time this case has appeared on the facts, it is of such a nature that we do not think the law contemplates that damages should be awarded for delay.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2577568/ | 194 F. Supp. 2d 87 (2002)
ALBANY INSURANCE CO., Plaintiff,
v.
UNITED ALARM SERVICES, INC., et al., Defendants.
No. 3:00CV1193(AWT).
United States District Court, D. Connecticut.
March 29, 2002.
*88 *89 Robert K. Marzik, Stratford, CT, Jamesf. Sweeney, III, Donovan, Parry, Carbin, McDermott & Radzik, New York City, Thomas M. Rittweger, Nicoletti, Hornig, Campise & Sweeney, New York City, for Plaintiff.
Thomas J. Hagarty, Jr., Laura Alexandra Pascale, Halloran & Sage, Hartford, CT, for United Alarm SVSC, Inc.
Cynthia Ann Jaworski, Law Offices of Grant H. Miller, West Hartford, CT, for Advanced Automatic Sprinker Protection, Inc.
Thomas M. Murtha, Maher & Murtha, Bridgeport, CT, for City of Danbury, Danbury Pub. Util. Dept., Danbury Water Dept., William Buckley, Paul Galvin, John Doe.
David A. Haught, Robert G. Clemente, Paul A. Croce, II, Cooney, Scully & Dowling, Hartford, CT, for Otto Contracting Co.
RULING ON MOTION FOR SUMMARY JUDGMENT
THOMPSON, District Judge.
The plaintiff, Albany Insurance Company ("Albany"), brought this action against United Alarm Services, Inc. ("UAS") and several other defendants, seeking reimbursement for a payment it made under an insurance policy. UAS has moved for summary judgment on two grounds. First, UAS contends that Albany's claims against it are barred by virtue of waiver provisions in the agreements between Albany's insured and UAS. Second, UAS contends that even if the waiver provisions are not enforceable, the plaintiff's recovery as to UAS must be limited to $250.00, as set forth in the liquidated damages clauses in those agreements. For the reasons set forth below, the defendant's motion is being granted based on UAS's first argument.
I. FACTUAL BACKGROUND
On or about September 16, 1998, UAS entered into two written contracts with the Fairfield Processing Corporation ("Fairfield"). Each contract was for a term of three years. The first contract was a "Central Station Monitoring Agreement", which provided that in exchange for Fairfield's payment of a monthly fee of $17.50, UAS would monitor the fire alarm system at a warehouse owned by Fairfield and located in Danbury, Connecticut (the "Warehouse").
The second contract was a "Preventive Maintenance & Service Plans" agreement, which provided that UAS would "perform services to equipment/system" located at the Warehouse. Specifically, Fairfield signed up for "The Tune-Up" and "The Easy Sleeper" plans offered by UAS. Under "The Tune-Up" plan, UAS agreed to "[h]ave our trained technicians test and inspect your entire system, clean all security devices and document all poorly functioning components." Pl.'s Memo. Opp. Summ. J. ("Pl.'s Memo."), Ex. 3. Fairfield agreed to pay $125.00 per inspection for this service. Under "The Easy Sleeper" plan, UAS agreed to "return your system to its original working condition regardless of broken or damaged equipment." Id. Fairfield agreed to pay a monthly fee of $16.67 for this service.
Paragraph five of the Central Station Monitoring Agreement and paragraph four of the Preventive Maintenance & Service Plans agreement are identical, and contain, inter alia, a waiver by Fairfield of certain of its rights against UAS and a waiver, by Fairfield on behalf of its insurers, of any right of subrogation against UAS.
On July 5, 1999, a portion of a sprinkler main in the Warehouse became dislodged, causing water to flow into the Warehouse. Approximately 1.3 million gallons of water flooded the warehouse, damaging finished *90 goods stored there. Both of the agreements described above were in effect at the time of the flood.
The plaintiff, by virtue of a property insurance policy with Fairfield, paid Fairfield $715,930.96 for the property damage caused by the flood. Albany commenced this subrogation action against UAS and others in an effort to recoup its payment to Fairfield from the defendants.
II. LEGAL STANDARD
A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c) (2000). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir.1994). Rule 56(c) "mandates the entry of summary judgment ... 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." Celotex Corp., 477 U.S. at 322, 106 S. Ct. 2548.
When ruling on a motion for summary judgment, the court must respect the province of the jury. The court, therefore, may not try issues of fact. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is well-established that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." Anderson, 477 U.S. at 255, 106 S. Ct. 2505. Thus, the trial court's task is "carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined ... to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is "genuine ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. 2505 (internal quotation marks omitted). A material fact is one that would "affect the outcome of the suit under the governing law." Id. As the Court observed in Anderson: "[T]he materiality determination rests on the substantive law, [and] it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. Thus, only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. When confronted with an asserted factual dispute, the court must examine the elements of the claims and defenses at issue on the motion to determine whether a resolution of that dispute could affect the disposition of any of those claims or defenses. Immaterial or minor facts will not prevent summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir.1990).
When reviewing the evidence on a motion for summary judgment, the court must "assess the record in the light most favorable to the non-movant and ... draw all reasonable inferences in its favor." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Del. & Hudson *91 Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir.1990)). Because credibility is not an issue on summary judgment, the nonmovant's evidence must be accepted as true for purposes of the motion. Nonetheless, the inferences drawn in favor of the nonmovant must be supported by the evidence. "[M]ere speculation and conjecture" is insufficient to defeat a motion for summary judgment. Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315 (2d Cir.1997) (quoting W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)). Moreover, the "mere existence of a scintilla of evidence in support of the [nonmovant's] position" will be insufficient; there must be evidence on which a jury could "reasonably find" for the nonmovant. Anderson, 477 U.S. at 252, 106 S. Ct. 2505.
Finally, the nonmoving party cannot simply rest on the allegations in its pleadings since the essence of summary judgment is to go beyond the pleadings to determine if a genuine issue of material fact exists. See Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548. "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact," Weinstock, 224 F.3d at 41, if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, which must "demonstrate more than some metaphysical doubt as to the material facts, ... [and] must come forward with specific facts showing that there is a genuine issue for trial." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993)(quotation marks, citations and emphasis omitted). Furthermore, "unsupported allegations do not create a material issue of fact," Weinstock, 224 F.3d at 41. If the nonmovant fails to meet this burden, summary judgment should be granted. The question then becomes: is there sufficient evidence to reasonably expect that a jury could return a verdict in favor of the nonmoving party. See Anderson, 477 U.S. at 248, 251, 106 S. Ct. 2505.
III. DISCUSSION
The plaintiff's Second Amended Complaint contains 13 counts; the first six set forth claims against UAS. Counts One, Two and Three are claims for breach of contract, negligence and gross negligence and/or recklessness relating to the Central Station Monitoring Agreement. Counts Four, Five and Six are claims for breach of contract, negligence and gross negligence and/or recklessness relating to the Preventive Maintenance & Service Plans agreement. UAS raises as an affirmative defense to each of these claims the waiver provisions set forth in paragraph five of the Central Station Monitoring Agreement and paragraph four of the Preventive Maintenance & Service Plans agreement.[1] The plaintiff contends that the waiver provisions are unenforceable because they are ambiguous and also because they are against public policy.
Under Connecticut law, a party to a contract may waive any defenses or rights it has against the other party to the contract, and such a waiver will be enforced if it is clear and unambiguous. See Bialowans v. Minor, 209 Conn. 212, 550 A.2d 637, 639-40 (1988) (waiver of right to file mechanics' lien); City of New Haven v. Local 884, Council 4, AFSCME, 237 Conn. 378, 677 A.2d 1350, 1354 (1996) (noting that "the general rule [is] that rights may be waived" by contract or by actions); Conn. Nat'l Bank v. Douglas, 221 Conn. *92 530, 606 A.2d 684, 691 (1992) ("a guarantor may expressly waive claims relating to a secured creditor's alleged impairment of collateral"); Hartford-Connecticut Trust Co. v. Clark-Barone Co., 21 Conn.Supp. 368, 154 A.2d 883, 885 (1959) (voluntary waiver of rights in a contract is not contrary to public policy, which supports freedom to contract).
The Connecticut Supreme Court recently commented on the approach that a court should take in determining whether a contract term is clear and unambiguous, as follows:
In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. A contract is unambiguous when its language is clear and conveys a definite and precise intent. The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. Furthermore, a presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature.
United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 791 A.2d 546 (2002) (internal quotation marks and citations omitted).
A contractual waiver of subrogation rights is enforceable if, by this standard, the waiver is clear and unambiguous. In a case which is often cited by Connecticut courts in the context of subrogation actions, the Connecticut Supreme Court described subrogation as follows:
Subrogation is a doctrine which equity borrowed from the civil law and administers so as to secure justice without regard to form or mere technicality.... It is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience, should have been discharged by the latter. It is a legal fiction through which one, who not as a volunteer or in his own wrong, and where there are no outstanding and superior equities, pays the debt of another, is substituted to all the rights and remedies of the other, and the debt is treated in equity as still existing for his benefit.... Equity seeks by this action, as it does by that for reimbursement, contribution, and exoneration, to prevent the unearned enrichment of one party at the expense of another, by creating a relation somewhat analogous to a constructive trust in favor of the subrogee, or party making the payment, in all legal rights held by the creditor....
There is no more reason to deny that the person claiming subrogation should have the benefit of the securities because there is not an agreement to that effect than there would be in the absence of some agreement for equity to refuse to enforce a constructive trust or to deny the right of the assignee of a debt to have the benefit of the security given for it. The terms of the agreement between the parties might prevent the application of the remedy. But the subrogation does not depend upon an agreement that the person claiming it should have the benefit of the security. The question here is whether in equity and good conscience the plaintiffs are entitled to priority in order to secure to them the benefit which at least between the parties to the transaction it was agreed they should have.
Home Owners' Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 193 A. 769, 772-73 (1937) (emphasis added) (internal quotation marks and citations omitted).
*93 Subrogation actions are often brought by insurers, as is the case here. In this context, subrogation is the right of the insurer to be put in the position of its insured so that it may pursue recovery from third parties who are legally responsible to the insured for a loss paid by the insurer. When an insurer brings a subrogation claim, the insurer's rights "are no different or more advantageous" than the rights of the insured, and the insurer "stands in [the insured's] shoes as to any waiver or estoppel" which could affect the rights of the parties. Arton v. Liberty Mutual Ins. Co., 163 Conn. 127, 302 A.2d 284, 291 (1972). See also Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 586 A.2d 567, 570 (1991) (noting that a subrogee insurer has "no greater rights" against a defendant than the insured possessed and is "equally subject to any defenses" that the defendant might have asserted against the subrogor); KND Broadcasting Corp. v. Neiditz, No. SCH-4240, 1984 WL 255653 (Conn.Super.Ct. May 18, 1984) ("[T]he general rule is that the subrogee stands in the shoes of its insured and can obtain no greater rights against a third person than its insured had.").
The Central Station Monitoring Agreement and the Preventive Maintenance & Service Plans agreement each contain two pertinent provisions. First, paragraph two of each of these agreements provides that Fairfield will obtain "insurance covering personal injury, including death, and real or personal property loss or damage in, about or to the premises." Pl.'s Memo. Ex. 2, Ex. 3. Second, each of these agreements contains a waiver provision. Paragraph five of the Central Station Monitoring Agreement and paragraph four of the Preventive Maintenance & Service Plans agreement are identical and read as follows:
Subscriber does hereby for him/her/itself and all parties claiming under him/her/it release and discharge Company from and against all hazards covered by insurance or bond, including all deductible and retained limits as well as loss or damage in excess of policy limits. It is expressly understood and agreed that no insurance company, insurer, or bonding company or their successors or assigns shall have any rights created by a Loan Agreement, Loan Receipt, or other like document or procedure, or any right of subrogation against Company.[2]
Pl.'s Memo. Ex. 2, Ex. 3.
The first sentence of this paragraph includes a waiver by Fairfield of its own rights to recover from UAS any damages arising from hazards covered by insurance "Subscriber does hereby for ... itself ... release and discharge [UAS] from and against all hazards covered by insurance or bond ...." Pl.'s Memo. Ex. 2, Ex. 3. Such a contractual waiver of rights is enforceable under Connecticut law. See Maryland Cas. Co. v. The Trane Co., 46 Conn.Supp. 172, 742 A.2d 444, 445-46 (1999). The damage caused by the flood was covered by insurance, issued by Albany, so Fairfield has no right to recover from UAS for damages caused by the flood.
Under Connecticut law, Albany, as a subrogee, has no greater rights against UAS than its subrogor, Fairfield, has,
The insurer's right of subrogation against third persons causing the loss paid by the insurer to the insured does not rest upon any relation of contract or *94 privity between the insurer and such third persons, but arises out of the contract of insurance and is derived from the insured alone. Consequently, the insurer can take nothing by subrogation but the rights of the insured, and is subrogated to only such rights as the insured possesses. The principle has been frequently expressed in the form that the rights of the insurer against the wrongdoer cannot rise higher than the rights of the insured against such wrongdoer, since the insurer as subrogee, in contemplation of law, stands in the place of the insured and succeeds to whatever rights he may have in the matter. Therefore, any defense which a wrongdoer has against the insured is good against the insurer subrogated to the rights of the insured.... [A] subrogee can obtain no greater rights against a third person than its subrogor had.
Orselet v. DeMatteo, 206 Conn. 542, 539 A.2d 95, 97-98 (1988) (internal quotation marks and citations omitted). Because as Fairfield's subrogor, Albany has no greater rights than Fairfield has, and Fairfield has waived its rights to recover from UAS for damages resulting from the flood, Albany also has no right to recover any such damages from UAS.
In addition, the first sentence of this paragraph includes a waiver by Fairfield of the rights of all parties claiming under it to recover from UAS for any damages arising from hazards covered by insurance "Subscriber does hereby for ... all parties claiming under ... it release and discharge [UAS] from and against all hazards covered by insurance or bond ...." Pl.'s Memo. Ex. 2, Ex. 3. Furthermore, some parts of what is stated implicitly in this portion of the first sentence are stated expressly in the second sentence. The pertinent language in that second sentence is that "[i]t is expressly understood that no insurance company, insurer or bonding company ... shall have ... any right of subrogation against [UAS]." Pl.'s Memo. Ex. 2, Ex. 3. Thus, this is a situation where the terms of the agreement between Fairfield and UAS prevent the exercise of the equitable remedy of subrogation by any person who would otherwise have subrogation rights against UAS. The language in Home Owners' Loan Corp. makes it clear that such terms in an agreement are enforceable. See Home Owners' Loan Corp., 193 A. at 773 ("The terms of the agreement between the parties might prevent the application of the remedy."). See also Farmington Cas. Co. v. Williams Real Estate Co., 1999 WL 734935 (S.D.N.Y. Sept.20, 1999), aff'd, No. 99-9267, 2000 WL 1186006 (2d Cir. Aug.21, 2000) (finding valid and enforceable a waiver of subrogation clause contained in a lease agreement between the plaintiff's insured and the defendants); Tokio Marine and Fire Ins. Co. Ltd. v. Employers Ins. of Wausau, 786 F.2d 101, 104-05 (2d Cir.1986) (upholding waiver of subrogation clause in a construction contract).
Giving the words of the two agreements their natural and ordinary meaning, the court concludes that the language is clear, and also that the language conveys a definite and precise intent that no insurer have any rights of subrogation against UAS. The plaintiff argues, however, that the waiver provision is ambiguous for two reasons.
First, Albany contends that the language in paragraph two of each of the agreements, which requires Fairfield to obtain "insurance covering personal injury, including death, and real or personal property loss or damage in, about or to the premises", makes it unclear whether the waiver provision applies only when there is a tort claim or also applies when a claim is brought for breach of contract. However, Albany bases this argument on the premise that the term "hazards covered by insurance", *95 which is used in the waiver provision, is defined in paragraph two of the agreement. That term is not defined there. Also, Albany's argument is, in substance, that both the insurance provision and the waiver provision are to be understood in terms of the type of claim involved, and that is not so. The insurance provision refers only to the type of injury, loss or damage that must be covered and does not include any limitation based on the nature of the claim Fairfield would have. Finally, looking at the plain language of the waiver provision, there is no indication that the parties intended to limit the scope of the waiver provision in the manner suggested by Albany. The waiver provision states that Fairfield discharges UAS "from and against all hazards covered by insurance", and that "no insurance company ... shall have ... any right of subrogation" against UAS. Pl.'s Memo. Ex. 2, Ex. 3 (emphasis added). There is no basis in the language of the waiver provision for distinguishing between those situations where Fairfield has a contract claim and those where it has a tort claim. The cases relied on by Albany, St. Paul Fire and Marine Ins. Co. v. Protection Mutual Ins. Co., 644 F. Supp. 38 (S.D.N.Y.1986), and Viacom Int'l, Inc. v. Midtown Realty Co., 193 A.D.2d 45, 602 N.Y.S.2d 326 (N.Y.App.Div.1993), are inapposite because they involve contract language that is different in material respects.
The plaintiff also argues that the waiver provision is ambiguous because "it is ambiguous whether insurance was to be procured for the benefit of both parties." Pl.'s Memo. at 8. This question is immaterial because there is no basis in the language of the waiver provision for determining the scope of the waiver based on whether insurance was to be procured for the benefit of both parties or for the benefit of only one of them.
Finally, Albany argues that the waiver provision in paragraph five of the Central Station Monitoring Agreement and paragraph four of the Preventive Maintenance & Service Plans agreement violates public policy. Albany relies on Conn. Gen.Stat. § 52-572k, which provides, in pertinent part:
Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee's agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by a licensed insurer.
Conn. Gen.Stat. § 52-572k(a) (West 2002). However, § 52-572k is inapplicable to this case for at least two reasons. First, § 52-572k applies only to construction contracts. The Connecticut Supreme Court has held that in construing a statute, "the title of the legislation is an aid to statutory construction." P.X. Restaurant, Inc. v. Town of Windsor, 189 Conn. 153, 454 A.2d 1258, 1261 (1983). The title of § 52-572k is: "Hold harmless clause against public policy in certain construction contracts". This title clearly suggests that application of the statute was intended to be limited to construction contracts. "The legislature, in specifically outlawing hold harmless agreements in the construction industry, showed an intention that such a practice not be deemed against public policy in other situations, for had the legislature *96 intended to outlaw all such provisions as against public policy, it could have said so." Burkle v. Car and Truck Leasing Co., Inc., 1 Conn.App. 54, 467 A.2d 1255, 1257 (1983).[3]
Second, § 52-572k governs only those contracts "entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto". The plaintiff argues that the contracts at issue here concern the Warehouse's sprinkler system, and that the sprinkler system is an appurtenance to the Warehouse. An appurtenance is defined as "[a]n article adapted to the use of the property to which it is connected and which was intended to be a permanent accession to the freehold." Black's Law Dictionary 103 (6th Ed.1990).
The plaintiff has not provided any Connecticut precedent supporting its contention that a sprinkler system is an appurtenance within the meaning of this statute, but even assuming that a sprinkler system is an appurtenance, the contracts at issue here concern an alarm system, not a sprinkler system. Also, the Central Station Monitoring Agreement clearly states that title to all equipment associated with the alarm system remained with UAS unless sold and fully paid for, and that UAS reserved the right to remove and disconnect the equipment in the event of a default in payment by Fairfield. See Pl.'s Memo. Ex. 2 ¶ 7. Thus, the alarm system was not intended to be a permanent part of the real property, and is not an appurtenance.
Finally, the court notes that this analysis is consistent with that of courts in New York. Under New York law, "[s]prinkler systems may legitimately be considered appurtenances of real property ... whereas it has been held that contracts for installing and maintaining alarm systems are not contracts affecting real property or for services rendered in connection with construction, maintenance and repair of real property within the meaning of" a New York law similar to § 52-572k. Antical Chems., Inc. v. Westinghouse Sec. Sys., Inc., 86 A.D.2d 768, 448 N.Y.S.2d 279, 282 (1982) (internal quotation marks and citations omitted). See also El Chami v. Automatic Burglar Alarm Corp., 106 Misc. 2d 559, 434 N.Y.S.2d 330, 331 (1980) (acknowledging case law holding that a sprinkler system is an appurtenance but stating that an alarm system is not an appurtenance).
For these reasons, the court finds that § 52-572k does not apply to this case, and it is not a basis for denying the defendant's motion for summary judgment.
IV. CONCLUSION
For the reasons stated above, the Defendant's Motion for Summary Judgment [Doc. # 43] is hereby GRANTED.
The Clerk shall terminate United Alarm Services as a defendant in this case.
It is so ordered.
NOTES
[1] UAS also argues, in the alternative, that even if Albany has the right to seek reimbursement from UAS, the liquidated damages clauses set forth in the agreements limit the plaintiff's recoverable damages to $250.00. Because the court finds that the waiver provisions in the agreements are valid and enforceable, the court does not reach this issue.
[2] The term "subscriber" refers to Fairfield Processing Corporation and the term "company" refers to UAS.
[3] The Connecticut legislature has adopted several statutes dealing with alarm systems. Had the legislature intended § 52-572k to apply to contracts for monitoring or maintaining alarm systems, it could have specifically included such systems in the statutory language. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1976182/ | 397 Pa. 94 (1959)
Miller, Appellant,
v.
Montgomery.
Supreme Court of Pennsylvania.
Argued March 20, 1959.
July 2, 1959.
Before JONES, C.J., BELL, MUSMANNO, JONES, COHEN, BOK and McBRIDE, JJ.
*95 W. Davis Graham, for appellant.
Robert E. Ashe, with him Ashe & Ashe, for appellee.
OPINION BY MR. JUSTICE McBRIDE, July 2, 1959:
This action in trespass was instituted by Calvin E. Miller against Kenneth D. Montgomery, Administrator of the Estate of James H. Montgomery, deceased.
The evidence is necessarily meager in that Montgomery, who was the operator of the motor vehicle in which Miller was a passenger, was killed in the accident and Miller himself died prior to trial. No eyewitness was available. However, plaintiff did introduce the testimony of three persons who came upon the scene immediately after the accident. From their testimony it appears that Miller and Montgomery were employees of the Pennsylvania State Highway Department. They quit work at 4:30 p.m. on September 28, 1950 and started toward their homes in Kittanning upon State Highway Route 85 in a pick-up truck owned and operated by Montgomery. Miller was sitting beside him when they left their work project. Troutman and Fair, who were fellow workmen of Miller and Montgomery, testified that they were also proceeding upon the same highway toward Kittanning and came to where the highway crosses Cowanshannock Creek. At this point the road *96 curved to the left in the direction in which they were proceeding and the berm was observed to be disturbed or torn up. The guard rail at or near the bridge was broken or bent, and Montgomery's truck was observed in the creek, lying on its roof, with its wheels in the air. Miller was pinned under the truck and only released in time to prevent his being drowned, but Montgomery was dead when taken from the wreckage. The narration of these circumstances was confirmed by Dr. Stitt, who was also proceeding along the same highway and happened upon the scene at about the same time. That is all of the testimony since defendant introduced no evidence. The court, which, at the close of plaintiff's evidence, had refused defendant's motion for a compulsory nonsuit, submitted the case to the jury which returned a verdict in favor of defendant on which judgment was entered.
Plaintiff urges, on appeal, that the trial court committed reversible error in that: (1) the charge to the jury placed an improper emphasis on the burden of proof upon plaintiff; (2) in charging at all on the question of contributory negligence of plaintiff; and, (3) it incorrectly affirmed two points for charge requested by defendant. These allegations will be considered seriatim.
The plaintiff contends that the lower court erred in placing undue emphasis on the burden of proof upon him because of a failure to properly apply the doctrine of exclusive control. The doctrine of exclusive control, however, has no application to the facts of the instant case. As we are reversing for other error, we feel that it is incumbent upon us to direct the trial judge on retrial to refrain from any discussion of such doctrine.
Plaintiff next alleges that the trial court committed reversible error in charging on contributory negligence. The court said: "Well, then we come to the next question *97 in the case. That is, whether there was any contributory negligence on the part of Mr. Miller. Did he use due care, under the circumstances? Did he act as an ordinary, careful, prudent person would, under like or similar circumstances? If he did not, he would be guilty of negligence, and if it contributed in the slightest degree to the accident and injury, again there can be no recovery. There must be a verdict in favor of the defendant." The plaintiff does not contend there is any error in the content of the charge, for it is apparent that the charge is accurate and correct as an abstract proposition of law. Rather, it is contended that no charge at all as to contributory negligence should have been given or the court should have ruled as a matter of law that plaintiff was not guilty of contributory negligence. Again, it must be remembered that plaintiff's case disclosed no contributory negligence and no evidence was offered by defendant from which the contributory negligence of plaintiff could be inferred. Since the burden of establishing contributory negligence is on the defendant it follows that where there is no evidence in the record to justify a jury in inferring that plaintiff was guilty of contributory negligence, it is the duty of the court to give binding instructions that as a matter of law, no such question exists in the case. Hepler v. Hammond, 363 Pa. 355, 69 A. 2d 95; McCracken v. Curwensville, 309 Pa. 98, 163 Atl. 217; 38 Am. Jur., 1080, Negligence, § 367; Summary of Pennsylvania Jurisprudence, Torts I, § 134. In Hepler v. Hammond, supra, at page 357, this Court said: "It is elementary that a trial judge should not instruct a jury to find a material fact in the absence of evidence to support this finding." In the present case the court either should not have instructed the jury on contributory negligence; or, if it was thought necessary to instruct them on that subject, the Trial Judge *98 should have told them specifically that such an issue was not in this case.
The verdict returned by the jury was as follows: "And now, to-wit: June 17th, 1958, we, the Jurors empaneled in the above entitled case, find the defendant not guilty of negligence, and a verdict in favor of the defendant."
In light of this specific finding of the jury that the defendant was not guilty of negligence, it may well be that they never reached the question of plaintiff's contributory negligence. For this Court to reverse the trial court there must have been an error such as to have misled the jury to the plaintiff's prejudice. Lyons v. Wargo, 386 Pa. 482, 126 A. 2d 411; Harmon v. Chambers, 358 Pa. 516, 57 A. 2d 842. Since the case must be retried for another reason, it is unnecessary to decide whether the error was harmless. It should not be repeated in any event.
The third point made by plaintiff is based on the following point for charge requested by defendant and submitted to the jury by the court: "If the vehicle left the road by reason of some suddenly occurring defect or mechanical failure of the vehicle, or of a tire, of which defendant had no knowledge, that would not be negligence on the part of the defendant."
Thus, although the defendant offered no explanation of how the accident happened, and no such exculpatory evidence appeared in plaintiff's case, the trial court invited the jury to indulge in speculation and conjecture as to how the accident might have happened without defendant's fault. Of course, there is no limit to the number of hypothetical situations which may be conjured up to explain away an accusative set of circumstances. If we were to accept this charge as being correct, a trial judge could, in this same situation, properly charge that perhaps defendant died of a heart *99 seizure, or was felled by any given number of different maladies, or any number of other causes for this car running off the road, all of which would operate to excuse defendant. Once the trial court enters into the realm of uninhibited conjecture there is no limit to the possible causes which could be ascribed to this accident. Under the court's charge, therefore, the jury's verdict finding defendant free of negligence may well have been based upon the conjecture and speculation prompted by the affirmation of this point. A verdict based on speculation and conjecture cannot be allowed to stand. Pascarella v. Kelley, 378 Pa. 18, 105 A. 2d 70. Plaintiff's motion for a new trial should have been granted.
Judgment reversed and new trial ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3994340/ | 1 Reported in 191 P.2d 865.
The defendant herein, George Hoffman, being then confined in the state penitentiary at Walla Walla, was, by information filed April 25, 1946, by the prosecuting attorney of Walla Walla county, charged with the crime of *Page 476
"escape as prisoner," the charging portion of the information reading as follows:
"That the said George Hoffman in the county of Walla Walla, State of Washington, on the 24th day of April, 1946, being then and there a prisoner confined in a prison to wit: The Washington State Penitentiary, under and by virtue of a sentence imposed and commitment issued by R.M. Webster, a judge of the Superior court of Spokane County, Washington, on the 1st day of February 1944, in a cause entitled `State of Washington against George Hoffman, Defendant' in which said George Hoffman was convicted of the crime of Burglary in the Second Degree did then and there wilfully, unlawfully, and feloniously escape from said prison by the use of force and fraud."
The defendant, having pleaded not guilty to the information, was put upon his trial, the jury finding the defendant guilty as charged by the information. From a judgment and sentence imposed pursuant to the verdict of the jury, the defendant has appealed.
Appellant assigns error upon one of the trial court's instructions to the jury; upon the court's refusal to give a requested instruction; upon the denial of appellant's motion for a directed verdict, and upon the denial of his motion for a new trial.
Appellant did not testify and introduced no evidence, and, on this appeal, relies solely upon his contention that the evidence introduced by the state is not sufficient to support the verdict of guilty, the judgment based thereon, and the sentence imposed.
The evidence discloses that, during the month of April, 1946, appellant was lawfully confined, as above stated, in the Washington state penitentiary, and, on the twenty-fourth day of that month, was so confined. It appears from the evidence that, on the date last mentioned, appellant, in some unknown manner, concealed himself in the recreation yard of the penitentiary, hiding there until after the yard supposedly was cleared; that, after the guards had been withdrawn from the watch towers overlooking the yard, appellant, with the aid of a basketball backstop post, climbed the wall surrounding the yard, the wall being fourteen *Page 477
feet in height, and escaped. The statement of facts contains no direct evidence that appellant hid in the yard, while present there during the recreation period, on the day of his escape, but testimony introduced by respondent tends to eliminate any other theory concerning his escape.
Appellant was taken into custody in the city of Tacoma, May 28, 1946, and returned to the penitentiary. In due time, he was placed upon his trial, pursuant to the information referred to above.
No evidence introduced by the state supports the charge that appellant escaped from the penitentiary by "fraud," and the court properly withdrew that portion of the charge from consideration by the jury. Respondent argues that, from the evidence, the jury was warranted in finding that appellant escaped from the penitentiary by the use of force.
Rem. Rev. Stat., § 2342 [P.P.C. § 114-109], reads as follows:
"Every prisoner confined in a prison, or being in the lawful custody of an officer or other person, who shall escape or attempt to escape from such prison or custody, by force or fraud, if he is held on a charge, conviction or sentence of a felony, shall be guilty of a felony; if held on a charge, conviction or sentence of a gross misdemeanor or misdemeanor, he shall be guilty of a misdemeanor."
There is no statute in this state making escape from prison an offense save the above, which declares an escape "by force or fraud" to be a crime.
From the statement of facts, it appears that, when the usual evening count of the prisoners disclosed appellant's absence, a search was made, with the result that the above-mentioned, four-by-four-inch post, nine or ten feet in length, was found leaning against the inside of the wall enclosing the recreation yard. This post had been a support of a basketball backstop in the yard. The lower end of the post, which had been buried in a block of cement, was much rotted and decayed. Leaning against the wall, the post reached to within three or four feet of the wall's top. On the outside of the wall, near the point where one using *Page 478
the post as an aid in mounting the wall would have descended to the ground, were footprints indicating that the person who made them had an unusually short stride, which corresponded with that of appellant.
The statement of facts contains no evidence as to how, when, or by whom the basketball post was broken at the surface of the ground or placed in position against the wall, the evidence disclosing, however, that the post was much rotted at its base.
The issue is narrow and sharply drawn between appellant and respondent, the former contending that the record contains no evidence to the effect that appellant used "force" in escaping from the penitentiary, while respondent contends that the evidence affords a sufficient foundation for the verdict of the jury and the judgment entered thereon.
[1] In the case of State v. Hoffman, 110 Wash. 82,188 P. 25, it was held that penal statutes must be strictly construed. In the course of the opinion, the court said:
"Unless the language of the statute makes the conduct of the appellant criminal, there can be no recourse to the intention of the act to establish its interpretation. Though conduct may be within the reason of an act and the mischief to be remedied thereby, yet it cannot be punished as a crime if not so denominated by the statute. Lewis, Sutherland's Statutory Construction (2d ed.), § 520."
Rem. Rev. Stat., § 2298 [P.P.C. § 112-83] (which is a portion of chapter 249, p. 890, Laws of 1909, entitled "Criminal Code"), reads as follows:
"Every provision of this act shall be construed according to the fair import of its terms."
[2] It may be noted that § 884 of the Code of 1881 made it a crime for a person confined in jail to "break such jail and escape therefrom"; Rem. Rev. Stat., § 2342, supra, being essentially a re-enactment of the prison-break statute, with the addition of the element of fraud, and refers to an "escape," without direct reference to the element of prison break. Many states have enacted statutes making it a crime for one lawfully confined to escape from prison, but, in this *Page 479
jurisdiction, such an escape is not made a crime by statute unless effected by "force or fraud."
Appellant and respondent are correct in agreeing that the word "force," as used in the statute above quoted, is the equivalent of an element of the common-law crimes of "prison break" or "prison breach." It is also true that there is some analogy between the use of force in effecting a "prison break" or an escape from prison, and the use of force in effecting a burglarious entry. To support a conviction of burglary, it must appear that some degree of force was used in effecting the entry.
Respondent cites the case of State v. Rosencrans, 24 Wash. 2d 775, 167 P.2d 170, in which a judgment of guilty of the crime of second-degree burglary was affirmed. In the course of the opinion, we said:
"The gist of burglarious breaking is the application of force to remove some obstacle to entry, and the amount of force employed is not material. The exercise of the slightest force is sufficient. The breaking consists of the removal by the intruder, by the exercise of force, of an obstruction which, if left untouched, would prevent entrance. Hence, the application of force to push further open an already partly open door or window to enable a person to enter a room or building, is a breaking sufficient to constitute burglary if the other essential elements of the offense are present."
As to the crime of burglary, the foregoing statement is supported by the weight of authority.
In the case at bar, there is no evidence directly tending to prove that appellant broke the rotted post loose from the ground and placed it against the wall to use as an aid in effecting his escape. As to this phase of the case, the evidence is purely circumstantial.
An authority very frequently cited in cases involving prison break is the English case, decided in 1821, of Rex v. Haswell, Russ. Ry. 458, 168 Eng. Rep. 896. In that case, it appeared that the defendant was charged with a felony by way of prison breach, he having, while in prison under a lawful sentence, escaped by tying two ladders together, placing them against the wall of the prison yard, *Page 480
and climbing to the wall's top. Loose bricks had been placed upon the top of the wall in such manner that any person climbing over the wall would dislodge the bricks, causing them to fall and so give an alarm. It appeared probable that the bricks were accidentally thrown down by the prisoner in passing over the top of the wall. The judge who tried the case was in doubt as to whether the defendant was guilty of "prison breaking" or merely escaping, the latter constituting a lesser offense. Judgment was reserved for disposal by the entire court. After consideration, the judges were unanimously of the opinion that the escape was a "prison breach," and, therefore, a felony.
The case has been frequently cited and discussed by text writers and courts. While the headnote preceding the statement of the case indicates that the throwing down of the loose bricks resting on the top of the wall constituted the escape a prison breach, even though they were dislodged by accident, the summary of the opinion of the judges does not directly state that the overthrowing of the bricks was the decisive point in the case. Text writers and courts have cited the case of Rex v. Haswell, assuming that the dislodgment of the bricks was the point upon which the judges reached their conclusion that the defendant was guilty of prison breach. It seems probable that such was the case, but, as respondent argues, the conclusion of the judges was simply that the record showed that the crime of prison breach had been committed.
Counsel for respondent argues that the amount of force required to scale a wall is greater than that required to open a closed door or to push further open an already open door, both of which actions, as well as others requiring the exertion of comparatively little physical force, have been held to constitute a "breaking," within the statutes making burglary a crime.
The amount of muscular force necessarily exerted in accomplishing a certain act is not the criterion by which the legal results following from that act must be determined. Walking along level ground requires some physical exertion, climbing a steep incline or a flight of stairs *Page 481
or a ladder or a rope requires more exertion, much more than pushing further open a partially open door, but the latter act constitutes a forcible entry or exit because the force exerted removes an obstacle to such entry or exit, while the other acts have not the same legal consequences.
Several standard texts on criminal law state that a prisoner climbing over a prison wall is guilty of escape but not of prison breach. 2 Brill, Cyclopedia of Criminal Law 1795, § 1167; Harris's Criminal Law (13th ed.) 61, 62; Clark Marshall, Law of Crimes (4th ed.), 604.
In the case of State v. King, 114 Iowa 413, 87 N.W. 282, 89 Am. St. 371, 54 L.R.A. 853, the supreme court of Iowa said:
"The acts constituting the breaking of a prison are not different from those essential to be shown in establishing burglary or other criminal breaking, save, possibly, in the direction from which applied. Randall v. State,53 N.J. Law, 488 (22 Atl. Rep. 46). Something must be done tending to open a way through confining walls or other obstructions to free entrance or exit."
In the case of State v. Hatfield, 66 Wash. 9, 118 P. 893, 38 L.R.A. (N.S.) 609, this court held that an attempt to saw a bolt in a cell grating constituted the use of force in an attempt to escape from prison.
[3] The common law distinguished between the offenses of escape, on the one hand, and prison breach or prison break, on the other, the first being the unlawful departure of a prisoner from custody without any exertion of force, the latter being the offense of breaking from a prison with or by the exertion of force, in contrast to an escape by stratagem. 1 Burdick, Law of Crime, 458, 468, §§ 305, 312; 19 Am. Jur. 362, 363, §§ 5, 6; 30 C.J.S. 1142, 1148, §§ 2, 13.
[4] The only statute of this state making an escape a crime is Rem. Rev. Stat., § 2342, supra, in which the word "escape" is used instead of the common-law term "prison break," and, to constitute a crime within the statute, the escape must be "by force or fraud." The use of the word "force" in connection with escape necessarily indicates the *Page 482
common-law offense of prison break, as, otherwise, the word "force" would be superfluous. The statute does not make an escape from prison an offense unless accompanied by the use of either force or fraud. The crime established by the section is not defined by statute and, consequently, must be construed with the aid of the common law. Rem. Rev. Stat., § 2299 [P.P.C. § 112-85]; 3 Sutherland, Statutory Construction (3d ed.), 1, §§ 5301, 5302, 5303; 10 R.C.L. 579, 580, §§ 2, 3; United States v.Zimmerman, 71 F. Supp. 534, 537.
In 2 Brill, Cyclopedia of Criminal Law, 1795, § 1167, it is stated that one confined in prison who merely climbs over the prison wall and escapes is not guilty of prison breach (citing the case of Rex v. Haswell, supra.)
In the case of Crosby v. Commonwealth, 242 Ky. 62,45 S.W.2d 822, the defendant and other prisoners escaped from jail by passing through a tunnel which had been dug through the wall, then using a rope or ladder of blankets which extended from the second floor of the prison to the ground. It did not appear that the defendant on trial had assisted in tunneling the wall, and it was held that, under the statute of Kentucky, the defendant was not guilty of forcible escape.
[5] The evidence introduced by respondent does not support the jury's finding that appellant used "force," within the meaning of Rem. Rev. Stat., § 2342, supra, in the course of his escape from the penitentiary. The trial court instructed the jury that the use of force was an essential element of the crime with which appellant was charged, and that "The physical force required to climb a wall . . . if you find he did any of these things, would be escaping by the use of `force.'" In so instructing the jury, the trial court erred, as the jumping over or climbing of a wall is not the use of force, within the statute.
The record contains no evidence which supports the jury's verdict finding appellant guilty as charged. *Page 483
The trial court erred in denying appellant's motion for a directed verdict of not guilty.
The judgment appealed from is reversed.
MALLERY, C.J., STEINERT, SIMPSON, and JEFFERS, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1510088/ | 760 A.2d 1108 (2000)
361 Md. 234
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Howard J. FEZELL.
Misc. AG No. 34, Sept. Term, 1999.
Court of Appeals of Maryland.
October 13, 2000.
*1109 Melvin Hirshman, Bar Counsel, for the Attorney Grievance Com'n of Maryland.
Howard Fezell, Frederick, pro se.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.
RAKER, Judge.
The Attorney Grievance Commission, through Bar Counsel, charged Howard J. Fezell, Respondent, with violations of Maryland Rules of Professional Conduct 1.1, Competence;[1] 1.3, Diligence;[2] 1.4, Communication;[3] 3.2, Expediting Litigation;[4] and 8.1(b), Bar Admission and Disciplinary *1110 Matters.[5] Pursuant to Maryland Rule 16-709(b), we referred the charges to Judge John H. Tisdale of the Circuit Court for Frederick County to conduct a hearing and make findings of fact and proposed conclusions of law.
I.
Pursuant to an order of this Court, Judge Tisdale held an evidentiary hearing on January 12, 2000. Respondent asserted, in a Motion to Dismiss, that, because Rule 8.1 prohibits knowingly failing to respond to a lawful demand for information from a disciplinary authority, any allegation that he violated Rule 8.1 must state that a lawful demand was made. He argued that since Bar Counsel's Petition did not state that a lawful demand was made, only that Respondent failed to respond to requests from the Attorney Grievance Commission, those portions of the Petition relating to a violation of Rule 8.1 should be dismissed. Respondent further argued that the only method open to Bar Counsel to make a lawful demand was to issue a subpoena.
Bar Counsel responded that the subpoena power is intended to allow Bar Counsel to obtain documents from third parties not under the Attorney Grievance Commission's jurisdiction. Moreover, the subpoena power is discretionary, not mandatory, and is therefore not the sole method available to Bar Counsel to request information.
Denying the Motion to Dismiss, Judge Tisdale concluded that the rule empowering Bar Counsel to issue subpoenas was intended primarily to allow Bar Counsel to obtain information from those who are not parties to the case and was not meant to be Bar Counsel's sole method of effecting a lawful demand upon an attorney. Judge Tisdale filed an Opinion and Order setting forth his findings of fact and conclusions of law. He concluded that Respondent had violated Rules 1.3, 1.4, 3.2, and 8.1(b) of the Maryland Rules of Professional Conduct. Judge Tisdale further concluded that Respondent did not violate Rule 1.1. The Opinion and Order reads as follows:
"This matter came before the court pursuant to an order of the Court of Appeals of Maryland. On January 12, 2000, this court conducted a hearing in accordance with Maryland Rule 16-710 regarding a petition filed by the Attorney Grievance Commission (hereinafter the "Commission") concerning Howard J. Fezell (hereinafter the "Respondent"). The court took the matter sub curia.
"The Petition filed by the Commission concerns violations of professional ethics alleged in complaints of two clients of Respondent and his inadequate response to resulting inquiries of Bar Counsel. The Commission alleged violation of Maryland Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 3.2 (Expediting Litigation), and 8.1(b) (Bar Admission and Disciplinary Matters) in the Szarvas matter, along with violation of Rule 8.1(b) in the Weller complaint.
"At the hearing, Respondent acknowledged that he had not done a good job in handling the Szarvas divorce. As for his failure to comply with the Commission's requests for information, Respondent argued that nothing in the Maryland Rules compelled a reply. Respondent *1111 claimed that the letters from the Commission regarding the Szarvas and Weller complaints were `requests' for information and, as such, did not qualify as `lawful demands' within the language of Rule 8.1(b). Respondent argued that since the Commission has subpoena power under Maryland Rule 16-704(c), a subpoena must be issued in order to make a `lawful demand.'
"In accordance with Maryland Rule 16-711(a), the following findings of fact have been established by clear and convincing evidence:
FINDINGS OF FACT
"Respondent was admitted to practice law in the State of Maryland on June 21, 1978. Prior to the complaints filed in this matter, Respondent had never been the subject of public discipline.
Complaint of Mary L. Szarvas
"In May 1994, Mary L. Szarvas paid Respondent a fee of $600.00 and retained him to obtain a divorce on the ground of mutual and voluntary separation which commenced November 6, 1993. On May 19, 1994, Respondent filed a complaint for a limited divorce with a copy of the parties' separation agreement attached. Respondent personally served the summons on Mr. Szarvas on June 2, 1994. When Mr. Szarvas did not respond, Respondent obtained an order of default on November 18, 1994.
"On April 26, 1995 and again on June 14, 1995, Respondent filed supplemental complaints for absolute divorce. On each occasion, a copy of the complaint was mailed to Mr. Szarvas, but no summons was issued or served upon the defendant.
"Ms. Szarvas, her sister Linda Main, and Respondent appeared before a standing examiner to have testimony taken on July 7, 1995 pursuant to Rule 2-542. Mr. Szarvas did not appear. On July 21, 1995, Respondent filed the transcript of the testimony with the Circuit Court for Frederick County. However, this testimony was not ripe since it was taken prior to an answer or entry of any order of default regarding the supplemental complaints for absolute divorce.
"On November 15, 1995, Respondent filed a request for order of default which was denied because service had not been effected on the defendant as to the supplemental complaints pursuant to Rule 1-321(b).
"On December 6, 1995, Respondent filed another supplemental complaint for absolute divorce and mailed a copy to Mr. Szarvas. Mr. Szarvas did not respond to the supplemental complaint.
"On April 5, 1996, Respondent filed a supplemental complaint for absolute divorce. A writ of summons was issued. There is no record of service of the summons and supplemental complaint.
"On December 6, 1996, Respondent requested the Clerk of Court to reissue a summons for private service upon the defendant. On December 22, 1996, Mr. Szarvas was served, but he never filed a answer. On June 16, 1997, the court entered an order of default.
"Testimony was taken at Respondent's law office on June 20, 1997 before a standing examiner, and a transcript of the testimony was filed with the court on November 4, 1997. Ms. Szarvas learned from the clerk's office that the June 20, 1997 testimony had become stale since it was not filed within ninety (90) days of the taking of testimony.
"After June 20, 1997, Ms. Szarvas left telephone messages and notes at Respondent's office frequently. He did not reply except to instruct her to attend and give testimony before an examiner on two later occasions.
"The Respondent instructed Ms. Szarvas to come to his office to give testimony on January 30, 1998 at 4:00 p.m. Ms. Szarvas and Ms. Main waited at Respondent's *1112 office on this date from 3:55-4:30 p.m., but Respondent never arrived.
"On February 10, 1998, Ms. Szarvas filed a complaint against Respondent with the Commission.
"On February 18, 1998, the Commission sent a letter to Respondent, enclosing a copy of Ms. Szarvas's complaint and requesting a response within fifteen (15) days. Respondent did not reply to this request.
"On March 2, 1998, testimony in the Szarvas matter was again taken before a standing examiner. The Respondent filed the transcript of the testimony with the court on March 5, 1998.
"On March 12, 1998, the Commission sent a second notice to Respondent regarding the Szarvas complaint, requesting a reply within ten (10) days of receipt. This letter was sent by certified mail, and the return receipt was signed by Respondent. Respondent claimed he did not receive the first notice and requested another copy of the complaint.
"On March 25, 1998, the Commission sent Respondent a copy of the Szarvas complaint, and requested a response within fifteen (15) days. In return, Respondent sent the Commission a copy of the judgment of absolute divorce entered on March 30, 1998, but made no further reply.
"On August 25, 1998, Commission investigator John Reburn called Respondent and left a message requesting a return call. Respondent did not return this call.
"On August 26, 1998, Mr. Reburn wrote to Respondent requesting a meeting to discuss the complaint and review the file of Mary Szarvas. Respondentdid not reply to this request.
"On September 8 and 9, 1998, Mr. Reburn called Respondent and left messages requesting a return call to which Respondent did not reply.
"On September 9, 1998, Mr. Reburn left a business card at Respondent's law office with a note requesting a phone call.
"On September 10, 1998, Mr. Reburn contacted Respondent by telephone and requested a meeting. Respondent declined this request and chose to discuss the matter by telephone. In this conversation, Respondent acknowledged that testimony in the Szarvas matter became stale and had to be retaken. Additionally, Respondent explained that it took four years to obtain Ms. Szarvas's divorce because Mr. Szarvas often moved and was therefore difficult to serve.
"Ms. Szarvas was aware of Mr. Szarvas's address throughout Respondent's representation.
CONCLUSIONS OF LAW
"By his conduct in handling the divorce of Mary Szarvas, respondent has violated Maryland Rules of Professional Conduct 1.3,1.4, 3.2, and 8.1(b).
"Respondent violated Rule 1.3 in that it took him four years to obtain a divorce for Ms. Szarvas. Respondent's repeated failure to file testimony timely and to serve the defendant demonstrates a lack of reasonable diligence. Although Respondent claims that Mr. Szarvas was difficult to locate, the defendant's address could have been obtained from Respondent's client throughout the representation.
"The court finds that Respondent violated Rule 1.4 through his pervasive failure to inform Ms. Szarvas of the status of her case. Throughout the four years of representation, Ms. Szarvas never received anything in writing from Respondent, and he only called her to schedule the taking of testimony. Ms. Szarvas was left unaware of the status of her case, and had to obtain information regarding her divorce from the clerk's office.
"Respondent has violated Rule 3.2 by failing to obtain an uncontested divorce within four years. Respondent's repeated *1113 failure to serve the defendant throughout the four years of representation unreasonably delayed Ms. Szarvas's divorce. Testimony had to be taken on three separate occasions due to Respondent's errors. As a result, court time was spent unnecessarily in filing and reviewing inappropriate pleadings and testimony submitted by the Respondent.
"Respondent has violated Rule 8.1(b) by failing to respond to the February 18, 1998 and March 12, 1998 letters from the Commission requesting information regarding the Szarvas complaint. In addition, Respondent's limited cooperation with investigator John Reburn frustrated the Commission's investigation of the Szarvas matter.
"Respondent's argument that Bar Counsel's requests for information do not qualify as `lawful demands' in the language of 8.1(b) is without merit. Rule 16-704 gives Bar Counsel subpoena power, but the issuance of a subpoena does not therefore become Bar Counsel's sole means of making a `lawful demand.' Even a cursory reading of Rule 16-704(c) demonstrates that subpoena power is provided to Bar Counsel to obtain information from those who are not parties to a specific complaint. The attorney against whom a complaint has been filed is entitled to notice of a subpoena; it is not to be served on him. Rule 16-706 charges Bar Counsel with the duty to investigate attorneys, and Bar Counsel's letters and Mr. Reburn's investigation were both in accordance with this duty. Respondent's failure to respond to the inquiries has impaired Bar Counsel's ability to fulfill this obligation.
"Of equal or greater concern is Respondent's disregard of the spirit and intent of the Rules of Professional Conduct. The preamble to those rules notes that `[t]he legal profession's relative autonomy carries with it special responsibilities of self-government.' Those responsibilities can only be carried out with candor and cooperation by each lawyer when dealing with the Attorney Grievance Commission. Respondent resisted the efforts of the Commission to investigate the complaints and then attempted to justify his recalcitrance by a formalistic interpretation of procedural rules.
"The court does not find any violation of Rule 1.1. The Commission has not presented clear and convincing evidence that Respondent's handling of the Szarvas matter demonstrated a lack of legal knowledge, skill, or preparation. Although the Respondent took testimony prematurely on one occasion and allowed testimony to become stale on another, such errors do not rise to the level of incompetent representation.
Complaint of Kerry D. Weller
"On June 19, 1998, Kerry D. Weller retained Respondent to retrieve guns and ammunition that had been seized in a police raid.
"Mr. Weller and Respondent agreed to an advance fee of $500.00, and Mr. Weller gave Respondent a check for $250.00. Two weeks later, Mr. Weller gave Respondent another check for $250.00 which Respondent never deposited. Mr. Weller stopped payment on the second check.
"On June 26, 1998, Respondent sent a letter to Officer Walter S. Dacuycuy in an attempt to retrieve Mr. Weller's firearms.
"Mr. Weller attempted to call Respondent several times but received no response. When Mr. Weller was able to contact Respondent, he requested that Respondent deposit his second retainer check and retrieve his firearms. Respondent informed Mr. Weller that he would deposit the check and that he was awaiting a response from Officer Dacuycuy regarding the firearms.
"In September 1998, Mr. Weller retrieved the firearms himself.
*1114 "On September 14, 1998, the Commission received a complaint from Mr. Weller based on Respondent's failure to deposit his second retainer check or retrieve his firearms.
"On October 16, 1998, James P. Botluk, Assistant Bar Counsel, wrote to Respondent regarding Mr. Weller's complaint and requested a response in writing within fifteen (15) days. Respondent did not reply.
"On November 17, 1998, Melvin Hirshman, Bar Counsel, wrote to Respondent and enclosed the October 16, 1998 letter. Mr. Hirshman requested a reply from Respondent within ten (10) days. The letter was sent by certified mail, and the return receipt was signed by Respondent. Respondent did not reply to this request.
CONCLUSIONS OF LAW
"Respondent has violated Rule 8.1(b) through his failure to reply to the October 16 and November 17, 1998 letters regarding Mr. Weller's complaint. This court finds that Bar Counsel's letters qualify as `lawful demands.' Therefore, Respondent's knowing failure to respond to Bar Counsel's inquiries of Mr. Weller's complaint violates Rule 8.1(b)."
II.
Before this Court, Respondent excepts to Judge Tisdale's findings that he violated Rule 8.1(b) and moves to dismiss the Petition on the grounds that it fails to state a cause of action upon which relief can be granted. His argument is two-fold. First, Respondent argues that, because Bar Counsel has not alleged in the Petition that a lawful demand for information was made upon Respondent, he has not set forth specific facts that would state a cause of action upon which relief could be granted, and, thus, the Petition must be dismissed. Second, Respondent contends that, in order to issue a lawful demand for information, Bar Counsel must issue a subpoena. Since Bar Counsel never issued a subpoena, he never made a lawful demand, and Rule 8.1(b) has not been violated.
A. Failure to State a Claim
We shall first address Respondent's argument that the Petition fails to state a claim upon which relief can be granted. As to the complaint of Mary Szarvas, the Petition states: "Respondent did not respond to the Attorney Grievance Commission when requested to respond to the complaint of Mary Szarvas. Respondent took the position that there was no rule requiring a response nor anything in the Maryland Annotated Code or in any of its various court rules that gives the Attorney Grievance Commission authority to make demands for a response to a complaint." As to the complaint of Kerry D. Weller, the Petition states: "The Respondent, however, again took the position in a response to a request for information from Bar Counsel about the complaint that he did not have to respond to a demand for information from a disciplinary authority and therefore refused to do so."
Respondent's Motion to Dismiss the charges alleging a violation of Rule 8.1(b) on the ground that the Petition is insufficient because it fails to allege that Bar Counsel made a lawful demand for information is denied. An attorney in a disciplinary hearing is "entitled to procedural due process, which includes fair notice of the charge." In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968). See Maryland Rule 16-709. The Petition clearly advised Respondent of the precise nature of the charges against him and set forth details sufficiently clear and specific reasonably to enable him to prepare a defense to the charges.
Maryland Rule 16-709 addresses charges brought by Bar Counsel in disciplinary proceedings. Section 709(c) requires that "[t]he charges shall be in writing and shall be sufficiently clear and specific reasonably to inform the attorney *1115 proceeded against of any misconduct charged and of the basis of any allegation that he is incompetent." To be sufficient, a petition must be intelligible and sufficiently informative to allow an accused attorney to prepare a defense. See Attorney Grievance v. Alison, 349 Md. 623, 641, 709 A.2d 1212, 1221 (1998) (holding that charges were sufficiently clear and specific to inform attorney of misconduct charged even though allegations did not specifically state that a cause of action was "frivolous," but merely cited the rule number and presented facts to support the allegation). So long as the petition informs the attorney of the misconduct charged in language which is clear and sufficiently specific to enable the attorney to prepare a defense, the charges need not be set out in any particular form. See Bar Ass'n v. Cockrell, 270 Md. 686, 692, 313 A.2d 816, 819 (1974) (holding that, while the [predecessor] rule requires that the charges be sufficiently clear and specific so as to enable the attorney to prepare a defense, no certain form or detail is required).
The Petition cited Rule 8.1 and presented facts to support the alleged misconduct. Bar Counsel alleged that Respondent refused to respond to requests for information from the Commission. While neither allegation contained Respondent's talismanic phrase, "lawful demand," the allegations were sufficiently clear and specific reasonably to inform Respondent of the alleged misconduct and to allow him to prepare a defense.
B. Subpoena Argument
Respondent argued at the hearing before Judge Tisdale, and makes the same argument before this Court, that, because Bar Counsel is empowered to issue subpoenas pursuant to Maryland Rule 16-704(c), only a subpoena would qualify as a "lawful demand" under Rule 8.1, and any letters that he received were merely requests for information. Judge Tisdale rejected Respondent's argument and concluded that the subpoena power under Rule 16-704 was intended to enable Bar Counsel to obtain information from third parties not subject to the authority of the Attorney Grievance Commission. He concluded that the letters received by Respondent qualified as "lawful demands." We agree and deny Respondent's Motion to Dismiss.
In construing a rule, we apply principles of construction similar to those used to construe a statute. See Holmes v. State, 350 Md. 412, 422, 712 A.2d 554, 558 (1998). We seek to discern legislative intent, beginning with an examination of the text of the rule. See State v. Harrell, 348 Md. 69, 80, 702 A.2d 723, 723 (1997). We give the words their ordinary and usual meanings. See Holmes, 350 Md. at 412, 712 A.2d at 558. If the language is clear and unambiguous, our analysis ends. See id. Even where the language is clear, however, we may look to other sources that bear on the purpose or intent of the rule. See State v. Wiegmann, 350 Md. 585, 592, 714 A.2d 841, 844 (1998).
Maryland Rule 8.1(b) provides in pertinent part as follows:
An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
* * * * * *
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.
On its face, this Rule does not define a lawful demand from a disciplinary authority. Maryland Rule 8.1(b) is identical, however, to Rule 8.1 of the ABA Model Rules of Professional Conduct. Universally, the *1116 ABA Model Rule has been interpreted to require an attorney to respond to letters or telephone calls from the disciplinary authority without the use of a subpoena. See, e.g., In re Evans, 661 P.2d 171, 172-74 (Alaska 1983); In re Secrist, 180 Ariz. 50, 881 P.2d 1155, 1157-58 (1994); Bach v. State Bar, 52 Cal. 3d 1201, 278 Cal. Rptr. 371, 805 P.2d 325, 327-29 (1991); In re Rich, 559 A.2d 1251, 1254 (Del.1989); In re Washington, 489 A.2d 452, 456-57 (D.C. 1985); The Fla. Bar v. Grosso, 647 So. 2d 840, 840-41 (Fla.1994); In re Royal, 29 Ill. 2d 458, 194 N.E.2d 242, 243 (1963); Committee on Prof'l Ethics and Conduct of the Iowa State Bar Ass'n v. Peterson, 524 N.W.2d 176, 177-79 (Iowa 1994); In re Jackson, 252 Kan. 219, 843 P.2d 257, 259 (1992); Kentucky Bar Ass'n v. Blackburn, 883 S.W.2d 877, 877 (Ky.1994); In re McCoy, 375 N.W.2d 471, 471 (Minn. 1985); In re Staab, 719 S.W.2d 780, 783-84 (Mo. 1986); State ex rel Neb. State Bar Ass'n v. Kirshen, 232 Neb. 445, 441 N.W.2d 161, 166-70 (1989); State Bar of Nev., 98 Nev. 599, 655 P.2d 529, 530 (1982); In re Rogovoy, 100 N.J. 556, 498 A.2d 769, 773-74 (1985); In re Cardoso, 200 A.D.2d 42, 612 N.Y.S.2d 446, 446-49 (1994); In re Lince, 200 N.W.2d 56, 58 (N.D.1972); In re Gastineau, 317 Or. 545, 857 P.2d 136, 142 (1993); In re Chastain, 316 S.C. 438, 450 S.E.2d 578, 580 (1994); In re Clark, 99 Wash.2d 702, 663 P.2d 1339, 1341-42 (1983); Committee on Legal Ethics of W. Va. State Bar v. Keenan, 192 W.Va. 90, 450 S.E.2d 787, 789-91 (1994); In re Norlin, 104 Wis. 2d 117, 310 N.W.2d 789, 795 (1981).
This Court has a long history of holding that an attorney violates Rule 8.1(b) by failing to respond to letters from disciplinary authorities requesting information.[6]See, e.g., Attorney Grievance v. Tolar, 357 Md. 569, 582, 745 A.2d 1045, 1052 (2000) (holding that failing to respond to letters from Bar Counsel requesting a response constituted a violation of Rule 8.1); Attorney Grievance v. Briscoe, 357 Md. 554, 562-64, 745 A.2d 1037, 1043 (2000) (finding violation of Rule 8.1 where attorney failed to appear with documents at a hearing, despite receiving "notices" of the dates); Attorney Grievance v. Brown, 353 Md. 271, 286-87, 725 A.2d 1069, 1076 (1999) (finding violation of Rule 8.1 where counsel failed to respond to three letters sent by Bar Counsel requesting information); Attorney Griev. Comm. v. Milliken, 348 Md. 486, 500-01, 704 A.2d 1225, 1232 (1998) (holding that failure to respond to Bar Counsel's letters is a violation of Rule 8.1); Attorney Griev. Comm. v. Hallmon, 343 Md. 390, 407-08, 681 A.2d 510, 519-20 (1996) (holding that attorney violated Rule 8.1 when he refused to meet with an Assistant Bar Counsel to discuss an investigation after being requested to do so in a letter from the Assistant Bar Counsel); Attorney Griev. Comm. v. Kenney, 339 Md. 578, 587, 664 A.2d 854, 858 (1995) (holding that attorney violated Rule 8.1 when he failed to provide records of his escrow accounts and other information after being requested to do so by Bar Counsel); Attorney Griev. Com'n v. David, 331 Md. 317, 321-22, 628 A.2d 178, 181 (1993) (holding that failing to respond to two written inquiries by the Attorney Grievance Commission regarding a filed complaint constituted a violation of Rule 8.1); Attorney Griev. Comm'n v. Nisbett, 316 Md. 464, 470, 560 A.2d 18, 21 (1989) (holding that attorney's failure to respond to Bar Counsel's numerous requests for information in connection with complaints filed against the attorney violated Rule 8.1). In all of the cases above, Bar Counsel sent letters, not subpoenas, to request information or notify attorneys of investigatory hearings, and, in every case, this Court held that a lawful demand was made. Significantly, Respondent does not cite a single authority for the proposition *1117 that Bar Counsel must issue a subpoena to make a lawful demand.
Maryland Rule 16-704, formerly Rule BV 4, concerns Bar Counsel. Bar Counsel is empowered, inter alia, to investigate all matters involving possible misconduct called to his attention and to prosecute disciplinary cases. See Rule 16-704(b)(i). Rule 16-704(c)(1) provides as follows:
After a complaint has been filed, and with the prior written approval of the Chair or Acting Chair of the Commission, Bar Counsel may issue a subpoena to compel the production of designated documents or other tangible things at a time and place specified in the subpoena. In addition to giving any notice required by law, Bar Counsel shall provide prompt notice of the issuance of the subpoena to the attorney against whom the complaint has been filed. The notice shall be personally delivered or sent by regular mail to the attorney's last known address and to the attorney's address contained in the records of the Clients' Security Trust Fund, if different.
Rule 16-704(c)(2) sets out the procedure for the attorney or the person served with the subpoena to object to the subpoena, as well as Bar Counsel's authority to compel compliance with the subpoena. Finally, Rule 16-704(c)(3) provides that, "to the extent practicable, a subpoena shall not divulge the name of the attorney against whom the complaint has been filed." Bar Counsel is charged with investigating each complaint that an attorney has committed misconduct or incompetency. See Rule 16-706.
Rule BV4, the predecessor to Rule 16-704, was amended in 1992 to grant subpoena power to Bar Counsel prior to the scheduling of an Inquiry Panel. See Rule 16-706(d)(3)(c). Section (c) was added to BV4 at the request of Bar Counsel primarily to enable his staff to obtain financial and bank records in a more expedient manner. See Md. Court of Appeals, Standing Comm. on Rules of Practice and Procedure, Minutes of May 17-18, 1991, p.16., Reporters Note. The existing rule permitted an Inquiry Panel to cause the issuance of a subpoena for an Inquiry Panel proceeding; the proposed change permitted earlier responses from uncooperative attorneys who refused to produce their records. See id. In as much as Bar Counsel's investigation takes place before the Inquiry Panel is assembled and scheduled, Bar Counsel would resort to an "awkward procedure ... by convening a panel, establishing a `dummy' date for final hearing to issue a subpoena for bank records or other records and awaiting the receipt of those records and examination before convening the panel for a hearing." Id. (quoting Letter from William W. Beckett, Esq., Chairman of Attorney Grievance Commission, to Chief Judge Murphy (March 27, 1991)). The grant of this subpoena power was never intended to affect Rule 8.1 or Bar Counsel's ability to request information under that rule.
C. Exceptions
Respondent has filed two exceptions. Respondent excepts to Judge Tisdale's findings of fact and conclusions of law regarding Rule 8.1. Aside from his subpoena argument, which we have rejected, Respondent contends that the letters that he received from Bar Counsel did not contain the word "demand," nor did the correspondence inform Respondent that failure to respond within any time period could be considered an ethical violation. With respect to the Szarvas matter, Respondent argues that Judge Tisdale never made a finding that any lawful demand for information was made of him. He further asserts that Judge Tisdale ignored evidence that he placed a call to Bar Counsel after receiving the investigator's business card in his mailbox and that this evidence demonstrates cooperation with Bar Counsel. Finally, Respondent takes issue with the charges in the Statement of Costs that Bar Counsel has recommended that this Court order Respondent to pay.
*1118 Respondent's argument that the letters of Bar Counsel were merely requests to respond, as opposed to demands, is plainly frivolous. We summarily rejected this argument in Attorney Grievance v. Alison, 349 Md. at 641, 709 A.2d at 1221. Alison claimed that the hearing judge had ignored the plain language of a letter from Bar Counsel, which, according to Alison, "merely invited a response" and Alison "chose not to accept the invitation." Id. at 641, 709 A.2d at 1221. We said: "We find no merit to this claim. It is clear that Respondent knowingly failed to respond to a lawful demand for information from a disciplinary authority." Id.
Respondent was put on notice that Bar Counsel considered these letters to be lawful demands and that a refusal to respond to them would result in a violation of Rule 8.1, as Bar Counsel cited Rule 8.1 in three of the five letters that Respondent received. Judge Tisdale's conclusion of law that Bar Counsel's letters to Respondent qualified as lawful demands pursuant to Maryland Rule 8.1 was not clearly erroneous.
Because we conclude that letters from Bar Counsel qualify as lawful demands, Judge Tisdale made all of the necessary findings to support a violation of Rule 8.1. Judge Tisdale concluded that Bar Counsel established by clear and convincing evidence that Respondent received letters on five separate occasions involving two different complaints and that Respondent did not respond as requested.
Factual findings of the hearing judge are prima facie correct and will not be disturbed on review unless clearly erroneous. See Attorney Grievance v. Sheridan, 357 Md. 1, 17, 741 A.2d 1143, 1152 (1999). Factual findings will not be disturbed if they are based on clear and convincing evidence. See id. The hearing judge may "pick and choose which evidence to rely upon." Id. (citing Attorney Griev. Comm'n v. Kemp, 303 Md. 664, 674, 496 A.2d 672, 677 (1985)). Thus, the fact that Respondent may have initiated the phone call that led to a ten-to-fifteen minute discussion of the case does not undermine the finding that Respondent violated Rule 8.1. Even viewing the phone call in the light most favorable to Respondent, his belated cooperation with Bar Counsel does not excuse Respondent's failure to respond to the previous five letters sent by Bar Counsel.
Respondent disputes the reasonableness of Bar Counsel's Statement of Costs, which Bar Counsel has requested that this Court order Respondent to pay. Respondent argues that various charges in the Statement of Costs are either excessive or unnecessary, contending that he should not be required to pay in excess of $.15 for photocopies or in excess of $3.00 per page for transcription, inasmuch as the transcripts were not prepared on a rush basis. Respondent also objects to the assessment for time, travel, and overtime of a stenographer brought in from Anne Arundel County when the same service could have been obtained locally, presumably for less expense, in Frederick County.
The record before us, however, is devoid of any evidence regarding these charges. As such, Respondent has failed to carry his burden of proving his exception by a preponderance of the evidence. See Sheridan, 357 Md. at 17, 741 A.2d at 1152 (stating that attorney in a disciplinary hearing must establish factual matters in defense of attorney's position by preponderance of the evidence). Without evidence of the particular costs charged to Respondent and some evidence as to the reasonable charge for the same service, Respondent's exception must be denied.
III.
We turn now to the question of the appropriate sanction. We are mindful that the purpose of disciplinary proceedings is to protect the public rather than to punish the errant attorney. See Attorney Grievance v. Dechowitz, 358 Md. 184, 192, 747 A.2d 657, 661 (2000). The public interest *1119 is served when this Court imposes a sanction that demonstrates to members of the legal profession the type of conduct that will not be tolerated. See Attorney Grievance v. Bridges, 360 Md. 489, 516, 759 A.2d 233, 247 (2000) (quoting Brown, 353 Md. at 295, 725 A.2d at 1080). The severity of the sanction imposed depends upon the facts and circumstances of each case. See Dechowitz, 358 Md. at 192, 747 A.2d at 661.
Respondent has violated Rules 1.3, 1.4, 3.2, and 8.1(b). Bar Counsel recommends that this Court impose a suspension of not less than sixty days and order Respondent to pay the Attorney Grievance Commission's costs in this matter. Respondent recommends that, if this Court imposes any sanction, it should be a public reprimand. As support for this recommendation, Respondent notes that he has been a member of the Bar of the State of Maryland since 1978 and has not previously been the subject of public discipline.
Judge Tisdale noted that Respondent's repeated refusal to comply with the requests of Bar Counsel demonstrated a complete "disregard of the spirit and intent of the Rules of Professional Conduct." He concluded that, "Respondent resisted the efforts of the Commission to investigate the complaints and then attempted to justify his recalcitrance by a formalistic interpretation of procedural rules." We agree.
The practice of law carries with it special responsibilities of self-regulation, and attorney cooperation with disciplinary authorities is of the utmost importance to the success of the process and the integrity of the profession. See In re Norlin, 104 Wis. 2d 117, 310 N.W.2d 789, 795 (1981). As the Supreme Court of Washington stated:
The practice of law has been a profession of the highest order since its inception and it must continue to be so. Internal investigation of a complaint is an integral part of the machinery for handling charges regarding the ethics and conduct of the attorneys admitted to practice before this court. Public confidence in the legal profession, and the deterrence of misconduct, require prompt, complete investigations. The process of investigating complaints depends to a great extent upon an individual attorney's cooperation. Without that cooperation, the [disciplinary authority] is deprived of information necessary to determine whether the lawyer should continue to be certified to the public as fit. Obviously, unless attorneys cooperate in the process, the system fails and public confidence in the legal profession is undermined. If the members of our profession do not take the process of internal discipline seriously, we cannot expect the public to do so and the very basis of our professionalism erodes. Accordingly, an attorney who disregards his [or her] professional duty to cooperate with the [disciplinary authority] must be subject to severe sanctions.
In re Clark, 99 Wash.2d 702, 663 P.2d 1339, 1341-42 (1983).
Washington is not alone in recognizing the importance of attorney cooperation in disciplinary matters. See, e.g., Committee on Prof'l Ethics and Conduct of the Iowa State Bar Ass'n. v. Horn, 379 N.W.2d 6, 8 (Iowa 1985) ("It is vital to the accused lawyer, the members of the bar, and the general public that a complaint against a lawyer be promptly investigated and evaluated."); In re Staab, 719 S.W.2d 780, 783 (Mo.1986) (stating that the disciplinary authorities give time and service to maintain high standard in the legal profession and are entitled at a minimum to courteous response and prompt cooperation); In re Rogovoy, 100 N.J. 556, 498 A.2d 769, 772 (1985) (stating that, when a lawyer shows disrespect to an Ethics Committee, the lawyer shows disrespect to state Supreme Court because Ethics Committee is an arm of the court); In re Lince, 200 N.W.2d 56, 59 (N.D.1972) (noting that attorney's failure *1120 to cooperate with the disciplinary authorities is inexcusable and merits the condemnation of the court).
Respondent's violations of the Rules of Professional Conduct regarding diligence, communication, expediting litigation, and responding to lawful demands of Bar Counsel are serious. We agree with Bar Counsel and find that a suspension for sixty days is the appropriate sanction. The suspension is to be effective thirty days from the date of the filing of this opinion.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(C), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST HOWARD J. FEZELL.
NOTES
[1] Rule 1.1 (Competence) provides as follows:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
[2] Rule 1.3 (Diligence) provides as follows:
A lawyer shall act with reasonable diligence and promptness in representing a client.
[3] Rule 1.4 (Communication) provides as follows:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
[4] Rule 3.2 (Expediting Litigation) provides as follows:
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
[5] Rules 8.1(b) (Bar and Disciplinary Matters) provides in relevant part as follows:
An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
* * * * * *
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.
[6] The attorney's duty to respond is qualified by the privilege against self-incrimination. See Maryland Rule 1.6, Confidentiality of Information. See also Spevack v. Klein, 385 U.S. 511, 516, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3862332/ | Argued October 1, 1940.
The judgment of the court below is affirmed on the opinion of President Judge READER.
Judgment affirmed, and it is ordered that the defendant appear in 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/4062031/ | ACCEPTED
03-15-00056-CR
4703872
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/31/2015 11:43:27 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00056-CR
IN THE COURT OF APPEALS FOR THE FILED IN
3rd COURT OF APPEALS
THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 3/31/2015 11:43:27 AM
JEFFREY D. KYLE
Clerk
****************
VINCENT ALONZO CORSON
VS.
THE STATE OF TEXAS
****************
ON APPEAL FROM THE
426th JUDICIAL DISTRICT COURT OF
BELL COUNTY, TEXAS
CAUSE NO. 72,779
****************
STATE’S BRIEF
****************
HENRY GARZA
DISTRICT ATTORNEY
27TH JUDICIAL DISTRICT
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Texas 76513
(254) 933-5215 / (254) 933-5704 Fax
DistrictAttorney@co.bell.tx.us
ATTORNEYS FOR THE STATE
i
TABLE OF CONTENTS
Table of Authorities ................................................................................................................. ii
Appellant’s Brief ......................................................................................................................... 1
Prayer ............................................................................................................................................ 2
Certificate of Compliance with Rule 9 ................................................................................. 2
Certificate of Service ................................................................................................................ 3
ii
TABLE OF AUTHORITIES
Anders v. California, 386 U.S. 738
87 S. Ct. 1396 (1967) ................................................................................................... 1
Gainous v. State, 436 S.W.2d 137
(Tex.Cr.App.1969) ........................................................................................................ 1
iii
APPELLANT'S BRIEF
After a review of the record, the Appellant's counsel concludes that the
appeal is frivolous and that there are no arguable points of error (Appellant’s
Brief, pp. 1, 7).
Wherefore, Premises Considered, the State of Texas prays that the
decision of the Trial Court be affirmed, Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967); Gainous v. State, 436 S.W.2d 137 Tex.Cr.App.1969).
1
PRAYER
WHEREFORE, PREMISES CONSIDERED, and since no reversible
error is shown, the State respectfully prays that this Court affirm the
conviction.
Respectfully submitted,
HENRY L. GARZA
DISTRICT ATTORNEY
27TH JUDICIAL DISTRICT
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P. O. Box 540
Belton, Texas 76513
Bar I.D. # 15200000
(254) 933-5215 / (254) 933-5704 Fax
DistrictAttorney@co.bell.tx.us
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9 of the
Texas Rules of Appellate Procedure and that portion which must be included
Under Rule 9.4(i)(1) contains 369 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
2
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the State's Brief has
been sent by e-service to the e-mail address: ecopeland63@yahoo.com,
provided by the Attorney of Record, Erika Copeland, on this the 30th day of
March, 2015.
HENRY L. GARZA
DISTRICT ATTORNEY
27TH JUDICIAL DISTRICT
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P. O. Box 540
Belton, Texas 76513
Bar I.D. # 15200000
(254) 933-5215 / (254) 933-5704 Fax
DistrictAttorney@co.bell.tx.us
3 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3860068/ | Argued October 30, 1936.
A judgment was entered against Herman Stein, Pearl Stein, his wife, Benjamin Auerbach and Sarah Auerbach, his wife, on a bond accompanying a mortgage. The bond and mortgage were executed by the four defendants to the plaintiff. Benjamin Auerbach and Sarah Auerbach presented a petition to open the judgment. A rule was issued thereon, depositions were taken, and the rule discharged. Sarah Auerbach has appealed.
The petition to open the judgment set forth that the signatures of the petitioners to the bond and warrant and mortgage were obtained from them by a duly authorized agent of the plaintiff upon the representation made by plaintiff's agent at the time of their signing that the writings contained their oral understanding that Sarah Auerbach was giving her home as security to the extent of $500 on a mortgage loan made to her daughter, Pearl Stein, and that her home would be released as security upon the reduction of the mortgage loan from $2,000 to $1,500; that the Stein loan had been reduced to less than $1,500; and that there is no liability on the part of the petitioners on the said mortgage and the judgment entered by the plaintiff on the bond and warrant of attorney. *Page 591
Plaintiff, in its answer, averred that there was no such agreement as petitioners alleged; that the authority of its agent did not extend to making any such arrangements as asserted by petitioners; and that petitioners were barred by laches.
Appellant admits the execution of the mortgage and the accompanying bond on which judgment was entered; which judgment she now seeks to have opened on the ground that the bond and mortgage were executed by her on the false representation of plaintiff's agent that they contained a limitation of her liability. Where, as here, appellant seeks to strike down her written obligation, she must present evidence that is clear, precise, and indubitable. Peoples' Bank of California v. Stroud,223 Pa. 33, 35, 72 A. 341, 342; Certelli v. Braum, 294 Pa. 488,489, 144 A. 403; Helzlsouer, to use, v. Golub et al., 306 Pa. 474,478, 160 A. 118, 119.
It appears from the testimony that Herman Stein and Pearl Stein, his wife, the latter a daughter of appellant, applied in writing to the plaintiff building and loan association for a loan of $2,000 to be secured by a mortgage on premises at 6205 North Seventeenth Street, Philadelphia, of which they were the owners. The plaintiff association refused to lend more than $1,500 on the Stein property. Appellant and her husband presented to the plaintiff association an application signed by them for a second mortgage, covering appellant's property at 2940 Cambridge Street, Philadelphia, as additional security for the Stein loan of $2,000. These applications were granted by the plaintiff association on December 23, 1929, and on January 21 and 22, 1930, all the defendants executed a mortgage covering both properties and containing no limitation upon the amount for which any property or any person was to be liable, and at the same time there was executed by the defendants the bond and warrant *Page 592
on which plaintiff entered judgment on March 9, 1936. The Auerbachs were not able to read or write, excepting that Benjamin Auerbach could sign his name; appellant is about 75 years of age.
The testimony was conflicting. Proof of fraud in connection with the inclusion of appellant's property as security for the entire Stein loan must be found, if at all, in the testimony of Pearl Stein, Herman Stein, and appellant. Other witnesses who testified added nothing to appellant's case. Pearl Stein testified: "A. Well, after that it was agreed we had to sign the papers. We came to Mr. Keehfus and he told us the papers we were signing was only for the five hundred dollar bond to be held until five hundred dollars was paid on the property. Q. Until you had — A. Until we had five hundred dollars paid in on our house, then they would release that bond. Q. The bond of your mother's? A. Yes, the five hundred dollar bond on the property. . . . . . . Q. Did you read the application that was presented to you which identified as having been made up by Mr. Keehfus? A. Well, I did. Yes, I read it. Q. And after Mr. Keehfus told you that the loan was turned down at the December meeting what did you do next? A. He didn't tell me it was turned down. He told me that the only thing that could be done would be to allow me fifteen hundred dollars on the house and I would have to get the additional five hundred dollars as a bond which was to be held and released after I had paid in five hundred dollars on my house. . . . . . . Q. When you signed the bond and mortgage did you examine it? A. You mean did I read the papers? Q. Yes? A. Yes, I read it."
Herman Stein testified: "He [George Keehfus, conveyancer for plaintiff association] told us they could only give a fifteen hundred dollar mortgage but would give the entire two thousand if we could furnish a bond for five hundred dollars which was to be released *Page 593
when we had five hundred dollars paid into the building and loan, and that bond wasn't to be recorded. . . . . . . We went back and told Mr. Keehfus we could furnish the bond for five hundred dollars until we had five hundred dollars paid into the building and loan when it was to be released, and it was emphasized at that time that the bond was not going to be recorded."
Appellant testified: "Q. Did you sign the papers? A. Yes. Q. Where did you sign the papers? A. At my home. Q. Who was there when you signed that? A. Nobody. Q. Where was your husband? A. He was at the hospital, he was sick at that time. Q. He was sick at that time? A. He was sick, you know, in the hospital. After he came home he was sick and I was sad. I told him in the office, `Mr. Keehfus, you know I couldn't read, may be I will take a lawyer.' He said, `It is all right; you believe me so long, you believe me now. As for the five hundred dollars, as soon as you pay me five hundred dollars I give it to you, see.' He said it will be all right; so I went and took out of the Christmas Club five hundred dollars. I signed it. Q. You signed the papers after that conversation with Mr. Keehfus? A. Yes."
The hospital records showed that Benjamin Auerbach went to the hospital December 30, 1929, and left January 21, 1930.
George Keehfus, conveyancer for the plaintiff association, testified that Pearl Stein came to his office relative to a loan from the plaintiff association on her property; that plaintiff association refused to loan $2,000 on the Stein property without additional security; that the Steins and the Auerbachs made the necessary applications which were presented to plaintiff association; that appellant called at his office and stated she wanted to give her property as security for her daughter; that Pearl Stein was present when her father and mother signed the application; that the application *Page 594
was explained to the Auerbachs at the time of its execution; that plaintiff association acted favorably upon the applications; that he prepared the bond and mortgage which were executed by the Steins, in his office on January 21, 1930, and the next day by the Auerbachs at their home in the presence of Pearl Stein; that witness' son was also present at the time of their execution and acted as a witness; that the documents were not read by the Auerbachs, but were explained to them by the witness in the presence of Pearl Stein; that settlement was made at the Girard Title and Trust Company on January 23, 1930, by Pearl Stein; that appellant never offered him $500 for a release; that he never said anything to the Auerbachs or Steins about a $500 limitation; and that at the time of the execution of the bond and mortgage by the Auerbachs, in the presence of Mrs. Stein, he advised them that they were giving their property as additional security for the loan to their daughter and son-in-law.
Appellant also testified that she offered the conveyancer for the plaintiff association $500 for release of her property six months after the execution of the bond and mortgage, and that in 1931 she received $750 for matured free stock in the plaintiff association. In this connection her testimony is as follows: "Q. You say you went to Mr. Keehfus? A. Yes, to give him down five hundred dollars what I was holding for Mrs. Stein. Q. You wanted to give him five hundred dollars? A. Yes. Q. On the mortgage loan of your daughter's? A. Yes. Q. What did he say? A. He told me he couldn't do that way. He got to have more to cover the payments, and after that he said `Give me five hundred dollars. Loan it to me and I will give it back every year.' . . . . . . Q. When was this that you went to see him, how long ago? A. When I gave out the money, the same day. Before I take out the money the same day I got to go to the bank and take out the money. *Page 595
He told me, `I will pay you the five hundred dollars for your daughter.' Q. What did he say? A. He said, `You got to make another application.' That is what he said. He wouldn't do it because he wouldn't make up the papers. He said, `Loan it to me, my husband didn't need it at that time.'"
On July 19, 1934, appellant and her husband had issued a summons in equity against the plaintiff association, Herman Stein, and Pearl Stein. No further action was taken by appellant until petition to open judgment was filed on March 28, 1936. "While great laches or long delay in making an application to open a judgment is a circumstance of great weight against a petition, that is a matter for the consideration of the tribunal entertaining that proceeding": Miller Brothers et al. v. Keenanet al., 94 Pa. Super. 79, at page 83. From appellant's testimony it is clear that she displayed no diligence in attempting to enforce her contention.
"In determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the exercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of discretion is shown [cases cited]": Warren Savings Bank andTrust Co. v. Foley, 294 Pa. 176, at pages 184, 185, 144 A. 84, at *page 87.
It is necessary that the record show more than a mere conflict of evidence to warrant opening a judgment. "The evidence must carry such conviction of truth as to convince the judge that the judgment should be opened and a jury trial awarded: Mielcuszny et *Page 596 ux. v. Rosol, 317 Pa. 91 [176 A. 236]. The weight of the evidence and credibility of the witnesses are for the judge who sits as a chancellor: Jenkintown Nat. Bank's App., 124 Pa. 337, 344
[17 A. 2]; Augustine v. Wolf, 215 Pa. 558, 562 [64 A. 777]": Mutual B. L. Ass'n of Shenandoah v. Walukiewicz et al., 322 Pa. 240, at page 242, 185 A. 648, at page 649.
In refusing to open judgment the court below in its opinion stated: "The petitioners seek to set aside the contract embodied in the written bond and mortgage on the ground of fraudulent representations. To do so they must produce clear precise and indubitable evidence of the fraud. . . . . . . The testimony offered by the petitioners and their witnesses in depositions filed in support of the petition falls far short of these requirements and does not justify the opening of the judgment. . . . . . . Even allowing for the age and lack of education of the petitioners their stories are too indefinite and self-contradictory to afford a clear picture of what they claim happened."
In cases of this character, the issues are raised by the petition and answer, and only such testimony as is applicable to the issues so raised will be considered. See Warren Savings Bank Trust Co. v. Foley, supra; Shapiro et al. v. Malarkey, 278 Pa. 78,122 A. 341.
We have carefully examined the record, and we are of the opinion that the conclusion of the court below was proper, and that there was sufficient testimony to support its finding. Appellant has not met the burden placed upon her, and we find no abuse of discretion by the court below. See Mielcuszny et ux. v.Rosol, 317 Pa. 91, 176 A. 236.
Order is affirmed. *Page 597 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3992112/ | I think the instructions complained of only imposed upon defendants the obligation to exercise reasonable care under the facts and circumstances established by plaintiffs' evidence. According to plaintiffs' version of the collision, the truck, without warning, first turned suddenly over to the left side of the payment and then turned sharply to the right to enter the private driveway — thus blocking the pavement to its full width. To execute such a maneuver without warning in the middle of the block, to my mind, constitutes negligence, and that, in final analysis, is all that the instructions infer.
I dissent. *Page 587 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3862044/ | Argued October 26, 1934.
The question raised by this appeal is whether the Commonwealth of Pennsylvania is liable for the cost of printing the defendant's brief and record on appeal to the Supreme Court.
The facts may be stated as follows: Antonio Garramone was indicted in the court below for murder. On June 4, 1930 he pleaded guilty and, after hearing the evidence, the court below adjudged him guilty of murder of the first degree and fixed the penalty at death. He appealed to the Supreme Court of Pennsylvania (January Term 1932, No. 145) raising these questions: (1) Did the court err in adjudging the defendant guilty of murder in the first degree? (2) Did the court err in imposing sentence of death? and (3) Was there error "in hearing in rebuttal of evidence of good reputation, testimony of a specific act?" He was represented both in the court below and in the Supreme Court by his own counsel, not by counsel appointed by the court below for an indigent defendant. His counsel prepared a paper book consisting of brief and record which was printed at a cost of $202.50. On May 26, 1932 the Supreme Court rendered its decision (see 307 Pa. 507) wherein it sustained the court in adjudging *Page 590
him guilty of murder of the first degree, and did not reverse because of the admission of improper testimony, but directed the sentence to be modified from that of death to imprisonment for life; and on June 10, 1932 the defendant was re-sentenced, in accordance with the order of the Supreme Court, to separate or solitary confinement in the State Penitentiary for the Eastern District of Pennsylvania for the rest of his natural life and to pay the costs of prosecution. On April 2, 1934 he presented his petition in the court below asking for a rule to show cause why the sum of $202.50, the cost of printing the brief and record on appeal to the Supreme Court in the said case, should not be taxed as costs on the Commonwealth of Pennsylvania. A rule was granted, which on June 13, 1934 was made absolute. The Commonwealth has appealed.
Costs are not given in criminal cases by the common law: County of Franklin v. Conrad, 36 Pa. 317, 319 (1860); and in order to make the Commonwealth liable for their payment there must be clear and specific statutory authority: Com. v. Buccieri, 153 Pa. 570,26 A. 245 (1893). Our attention has been directed to no Act of Assembly specifically imposing the payment of defendant's costs in criminal cases, on the Commonwealth, and none directing that the Commonwealth pay for printing the defendant's brief and record on appeal. Counsel for appellee does not contend that he can compel the Commonwealth to pay them. He argues that the costs should be taxed on the Commonwealth, and that they are then collectible from the County of Philadelphia.
The County of Philadelphia, however, was not a party to this prosecution. As an agent or arm of the Commonwealth it is liable to pay only such costs, in criminal cases, as the legislature has specifically imposed upon it, and in order to make the County of Philadelphia liable there must be clear statutory warrant *Page 591
or authority for such action: County of Franklin v. Conrad, supra, p. 319; Com. v. Buccieri, supra; Dougherty v. Cumberland County, 26 Pa. Super. 610 (1904).
The Act of May 11, 1874, P.L. 132, relating to payment of costs in cases of felony, provides, "that the costs of prosecution on all bills of indictments charging a party with felony, ignored by the grand jury, shall be paid by the county; and in all cases of conviction of any felony, all costs shall be paid forthwith by the county, unless the party convicted shall pay the same; and in all cases in which the county pays the costs, it shall have power to levy and collect the same from the party convicted, as costs in similar cases are now collectible." It does not relate to the payment of the defendant's costs, but only to the costs of prosecution. In case of conviction such costs would be payable by, and collectible from, the defendant.
The Act of May 19, 1887, P.L. 138, entitled "An Act providing for payment of costs in criminal cases by the proper county" is limited by Section I to the costs of prosecution. It has nothing whatever to do with the defendant's costs. It "was passed to remedy an admitted hardship, by which the officers of justice andwitnesses for the Commonwealth in cases of misdemeanors were often unable to obtain the compensation due them under the law": Allen v. Delaware County, 161 Pa. 550, 29 A. 288 (1894), MITCHELL, J. It also provides that the county shall pay the necessary expenses of the district attorney in connection with any appeal or writ of certiorari to the Supreme Court, including a reasonable compensation for his services to be fixed by the court. There is not a word in the act that relates to costs of a defendant.
The Act of June 3, 1911, P.L. 627, which provides for the payment by the county of the costs of printing the paper book on appeal of certain persons convicted *Page 592
of murder of the first degree is limited to cases where "on account of the destitute circumstances of such person counsel shall have been assigned to him or to her." In the absence of statutory authority, the county was not liable to pay the fees of counsel assigned by the court to defend a pauper criminal, nor the expenses incurred by him in the preparation and course of the trial: Wayne v. Waller, 90 Pa. 99; and even now the court of quarter sessions does not have authority to order the county to pay the counsel fee of an attorney appointed by it to defend one charged with a misdemeanor: Com. v. Henderson, 113 Pa. Super. 348, 173 A. 868. See also Com. v. Wormsley, 294 Pa. 495,144 A. 428 (1928). The Act of June 3, 1911 has no application to this case, because, as before pointed out, the defendant had his own counsel and none was appointed by the court because he was in destitute circumstances.
The Act of April 15, 1907, P.L. 83, entitled "An Act relating to the taxing as part of the costs the printing of paper-books, upon appeals to Supreme and Superior Courts," as amended by the Act of April 27, 1909, P.L. 263, provides: "That in all cases, either in law or equity, wherein an appeal is taken from any judgment, decree, or order to the Supreme or the Superior Court, the party in whose favor the final decision is rendered shall be entitled to charge, and collect from the losing party as part of the costs, such amount as shall have been expended for printing paper books upon said appeal. The cost of printing the paper-book of each party shall be taxed as costs, collectible by the attorney of record of such party in such appeal. Said amounts to be taxed and collected in the same manner as costs are now taxed and collected by law." Attention is specially directed to the last sentence, "Said amounts to be taxed and collected in the same manner as costs are now taxed and collected by law." *Page 593
That is, the Act did not attempt to impose liability for costs when none theretofore existed; (York County v. Crafton, 100 Pa. 619
-1882) and cannot be construed as imposing liability on either the Commonwealth or the County for payment of the cost of printing a defendant's paper books in a criminal case: Com. v. Buccieri, supra, pp. 571, 572.
The Act of June 5, 1913, P.L. 422, is the act upon which the appellee chiefly relies. It is printed in the margin.1
The appellee contends that it is applicable to this case because it embraces all appeals to the Supreme or Superior Court "when the judgment, order, sentence, or decree is reversed by the appellate court." But authority to include the cost of printing paper books, as a part of the costs, goes back to the Act of April 15, 1907, supra, as amended by the Act of April 27, 1909, supra, and, as we have seen, they impose no such clear *Page 594
liability on the Commonwealth or county as to warrant the order in this case.
The inclusion of the word `sentence' in the act is not sufficient to create a complete change of policy as respects the payment of defendant's costs in criminal cases by the Commonwealth or, its arm and agency, the county.
When a defendant was convicted of a criminal charge he was always liable to pay the costs of prosecution; but the converse was not true. The Commonwealth was not liable, in case of his acquittal, to pay the defendant's costs; nor was the county liable to pay them except where liability was specifically imposed by the legislature. "Statutes permitting the imposition of costs in criminal cases upon the public are to be construed strictly. And the county commissioners have no authority to pay them, except when authorized by some act of assembly. Such authority must be expressly given in the act." Sadler's Criminal and Penal Procedure in Pennsylvania, Section 623, p. 495.
It followed, that when the cost of printing paper books on appeal was made part of the costs of the case, the general rule was not changed; and the inclusion of the word `sentence' in the Act of June 5, 1913, supra, while it made a losing defendant on appeal liable for the cost of printing the Commonwealth's paper books, did not impose on either the Commonwealth or county liability to pay for the paper books of a defendant in a criminal case who was successful in the appellate court.
In addition to the foregoing cases, see County of Bradford v. Wells, 125 Pa. 319, 17 A. 439 (1889); Codding v. Bradford County,116 Pa. 47, 9 A. 153 (1887); Berks County v. Pile, 18 Pa. 493
(1852); Com. v. Sawyer, 35 Pa. Super. 74 (1907).
The order of the court below is reversed.
1 "Section 1. Be it enacted, c., That in all appeals to the supreme or superior court, when the judgment, order, sentence, or decree is reversed by said appellate court, without a venire or order and judgment as to the payment of costs, the lawful costs in said case, taxed in the lower court, shall be paid by the losing party in such appeal; and, on the filing of the remittitur in said lower court, the proper officer shall enter judgment against said losing party, upon which judgment due process may issue for the collection thereof: Provided, however, That process to collect the said costs may be stayed if the court below shall determine the case is not finally closed between the parties, and the said losing party, or legal representative, shall bring a new action for the same cause of action against the other party, or legal representative, within thirty days after said determination. When such second or other action is brought, the collection of said costs shall be postponed until the final closing of said action, when said costs shall follow the judgment in said second or other case relating to the same cause of action. In default of said second or other action, the judgment for costs shall be final.
Section 2. That in all appeals to the supreme or superior court, when the judgment, order, sentence, or decree is reversed, with a venire for another trial, the costs taxed in accordance with existing law shall be paid by the losing party; and on the return of the remittitur in the lower court the proper officer shall enter judgment against said losing party, upon which said judgment due process of law may issue for the collection of the same, unless the said cause of action is again tried in the lower court by the parties, or legal representative, within one year after such remittitur is filed; in which event the costs shall follow the final judgment on such retrial, and be transferred by the proper officer to said case, and the former judgment satisfied if against the successful party." *Page 595 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3860519/ | Argued December 9, 1924.
The plaintiff brought an action before a magistrate in the City of Philadelphia to recover the sum of $67.50 for merchandise. The defendant did not appear at the trial and judgment was entered for the amount of the claim. Subsequently an appeal was taken to the municipal court by the defendant from the pleadings in which court it appears that the defendant denied the existence of the contract on which the plaintiff relied, and as an additional defense set up a counterclaim for damages for the breach of an agreement made by the plaintiff to deliver to the defendant a quantity of emeralds at the price of $160 per carat; the amount of the counterclaim being $368.28 and interest. The case was tried before the presiding judge without a jury who after hearing the evidence found against the plaintiff and in favor of the defendant for $399.31. From that judgment the plaintiff took the pending appeal. An insurmountable obstacle prevents the affirmance of the judgment. The jurisdiction of the magistrate is limited to demands not exceeding $100, under art. V, sec. 12 of the Constitution, and this limitation of general jurisdiction necessarily fixed the jurisdiction with respect to set-off and counterclaim, unless we are to hold unreasonably that while the *Page 351
plaintiff was limited with respect to the amount of his demand, no such limitation is imposed on the defendant with respect to his counterclaim or set-off. Such counter-demand is a claim by the defendant against the plaintiff. It is affirmative in its nature and its introduction in the case imposes on the defendant the burden of proof. It cannot be supposed that the legislature in fixing the jurisdiction of the magistrate intended to limit it as applied to the plaintiff and to extend it indefinitely with respect to the defendant. All of the cases hold that defenses of set-off and counterclaim are affected by the general jurisdiction of the magistrate as to the amount of the claim: Holden v. Wiggins, 3 Penrose Watt's 469; Deihm v. Snell, 119 Pa. 316; Backer v. Remov, 69 Pa. Super. 139; Lyons v. Barnett,79 Pa. Super. 352. The appeal from the judgment of the magistrate did not remove the case from the operation of the statute. While it is to be tried de novo after the appeal, this relates to procedure. The cause of action is the same and the court to which the appeal is taken has jurisdiction of the subject only because the magistrate had jurisdiction. It is not authorized in such a proceeding to try that which could not have been tried in the magistrate's court. It is clear that the counterclaim on which the appellee recovered could not have been entertained by the magistrate and that being the case the municipal court was controlled by the same limitation: Deihm v. Snell, supra; Katch v. Benton Coal Co., 19 Pa. Super. 476; Backer v. Remov, supra. It follows that the judgment was erroneously entered. It is therefore reversed. *Page 352 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3404513/ | Ford brought an action to recover of the Southeastern Fair Association damages arising from the theft of his automobile from the parking grounds of the defendant, and alleged as the cause of the loss certain acts of negligence of the defendant. The defendant filed its plea to the jurisdiction, and general and special demurrers to the petition, which plea and demurrers the court overruled. To these judgments the defendant filed exceptions pendente lite. The trial resulted in a judgment for the plaintiff, and the defendant filed its motion for new trial on the general grounds, and its amendment setting up special grounds, which motion as amended the court overruled. Exceptions are to the orders of the court overruling the plea, the demurrers, and the motion for new trial.
1. I specially concur in the ruling that under the allegations of the petition the civil court of Fulton County had jurisdiction. "Civil Court of Fulton County" is merely a new name for the Municipal Court of Atlanta (Ga. L. 1939, p. 449), and the act creating the municipal court (Ga. L. 1913, pp. 145, 158, § 26) provides that it shall have "jurisdiction to try and dispose of all civil cases [save where exclusive jurisdiction rests with other courts] of whatever nature, except injuries to the person or the reputation." The injuries alleged as the basis of recovery do not fall within the classification excepted.
2. I specially concur with the majority in the opinion that the *Page 876
court did not err in overruling the demurrers, but for the reasons hereinafter assigned. The petition alleged substantially, that the plaintiff and his wife visited the fair of the defendant; that the plaintiff paid as entrance fees fifty cents each for himself and his wife, and twenty-five cents "for the storing and parking of his automobile for safe-keeping while he and his wife were visiting the fair exhibits;" that he parked his automobile "at a place inside the fair grounds where he was directed to park same by the defendant;" that "he locked his automobile before leaving same;" that when he later returned (after such time as had been required to visit the exhibits and otherwise attend the fair) to the place "where he had parked his automobile upon the direction of defendant, . . his automobile had been stolen;" and that he notified the defendant that his automobile had been stolen. The negligence alleged was that the defendant failed to enclose properly the grounds, and did not provide the proper guards or watchmen to prevent the theft of his car; and that due to such negligence the defendant failed in the exercise of ordinary care to protect his automobile and prevent it from being taken from its possession, when it had led the plaintiff to believe, under its acts of taking possession of the car and directing its parking and placement, that the car would be safe from theft. A fuller exposition of the petition is unnecessary.
The demurrers raise but one material issue, that of bailment. I think this question is controlled in principle by the rulings in Dilberto v. Harris, 95 Ga. 571
(supra), and Keene v. Lumbermen's Mutual Insurance Co.,60 Ga. App. 864, 867 (5 S.E.2d 379). "A bailment is a delivery of goods or property for the execution of a special object, beneficial either to the bailor or bailee, or both; and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust." Code, § 12-101. It was ruled in Atlantic Coast LineRailroad Co. v. Baker, 118 Ga. 809 (supra), that "In order to create a bailment the bailee must have an independent and exclusive possession of the property." The allegations show a delivery of the property to the defendant on a contract of entrance of the car, beneficial both to the plaintiff and defendant, the immediate benefit to the defendant being the sum of twenty-five cents, and to the plaintiff the placement of the car on the fair grounds where he might *Page 877
leave it and attend the exhibits and other attractions, and then return for it for his departure from the grounds. The allegations show further that the plaintiff, on entering, remained momentarily in manual possession of the car, but, without choice or option,drove it and parked it under the control and at the direction of the defendant, and at a location on the grounds of the defendant as directed by the defendant; and that then he left it locked, and went to attend the fair for such period of time, long or short, as might be necessary for all purposes for which he had paid the fees for himself and wife. It is clear that during the time the plaintiff was driving and parking his car under the direction of the defendant the car was not in the independent and exclusive possession of the defendant and it is equally clear that the car would not have been in the defendant's independent and exclusive possession during the time of driving off the grounds. The question is, was the car in the independent and exclusive possession of the defendant during the time the plaintiff was away attending the fair and its attractions? If it was, the possession of the defendant was a bailment for hire, and the defendant was required to exercise "care and diligence in protecting and keeping" it "safely" (Code, § 12-103), the degree of care being as for a bailment for hire.
The court held in Dilberto v. Harris, supra: "The proprietor of a barber-shop kept for public patronage is liable to a customer for the value of his hat, which was deposited on a hatrack, in the shop and which, while the customer was being shaved, disappeared from the shop and was thus lost, such proprietor being, under these facts, a bailee for hire as to the customer's hat." Though the evidence was conflicting as to whether the plaintiff or the defendant's porter placed the hat on the hatrack, it was certain that the hat was placed on the rack in the barber-shop where all customers customarily placed their hats, and that the plaintiff then was shaved. It must be assumed that the court was fully cognizant of the law of bailments for hire, that the possession of the property must be in the independent and exclusive possession of the alleged bailee. It is clear that the effect of the decision was that while the hat was on the rack along with hats of other customers, and while the plaintiff was being shaved, the hat during that period of time was in the independent and exclusive possession of the barber, notwithstanding the hat may have been but a few feet distant from the plaintiff, *Page 878
and notwithstanding there was no contractual inhibition to the plaintiff recovering his hat at will, unaided, from the rack after the shave. Under these principles it appears that the possession of the car in the instant case was that of a bailee for hire. While the defendant's agents did not take manual control of the car and park it, the defendant nevertheless absolutely controlled and directed the parking of it in its "shop" or grounds; and, in analogy to the period of time the customer was "away" being shaved, the plaintiff was "away" during the time indicated, seeing the fair. It was not indicated as important (the decision being silent in this respect) that to perfect the bailment for hire it had been necessary that the proprietor alone recover the hat from the rack for his customer, but that if the customer himself took it from the rack he thereby defeated the bailment. The fact that the plaintiff in the instant case had the right to recover his car from its location where parked, without first getting permission instanter from the defendant or without first taking manual delivery from the defendant. I think immaterial to defeat the bailment for hire. While a bailment for hire may be the more readily evidenced when the proprietor of a parking lot issues a ticket and retains a stub, and thereafter requires the presentation of the ticket before his manual surrender of the possession of the car to the customer, such requirement does not alone determine the existence of the bailment. A bailment may exist without such delivery. Keene v.Lumbermen's Mutual Insurance Co., supra. I think such requirement, when used, goes more to the proper execution of the bailment than necessarily to its existence.
Moreover, the instant case on its facts is more strongly that of a bailment for hire than was Dilberto
v. Harris on its facts. In the Dilberto case no fee, as such, was paid for the deposit of the hat. In the instant case a fee of twenty-five cents was paid for entrance of the car for parking. The necessity for depositing the hat (unless the customer came bareheaded) was interrelated to the procuring of the shave, in that such "accommodation" went to the promotion of the business. I think that likewise it was in the financial interest of the defendant, in promoting attendance on its fair, to provide (except as to those who walked) a parking space for the automobiles of its customers, notwithstanding it charged extra therefor. The converse of independence and exclusiveness *Page 879
of possession of the property in the alleged bailee would be seen had the plaintiff been permitted to drive his car at will over the fair grounds, from which, parked or moving, he could have better seen the fair. No such permission obtained; the only permission which it may be inferred from the allegations the plaintiff had was (1) to park the car where directed, and (2) to drive it directly out when leaving the grounds. The fact that the car was left locked by the plaintiff would not of itself determine or defeat the existence of the bailment. Independence and exclusiveness of possession is not necessarily dependent on the right of the bailee freely to move the property about. A bailment may be of that which is fixed when placed in the possession of the alleged bailee, as well as that which is readily movable. There is no conflict in these rulings with those in Wall v. State, 75 Ga. 474. The fact that the defendant's business was not one which was operated the year round makes no difference. When the plaintiff left
the car and went to see the exhibits, he did not temporarily abandon his car as if he had parked it on the street, but he left it in the physical possession of the defendant. I think the plaintiff was buying something more than space (which might have been plentifully obtained within convenient walking distance of the fair grounds, and without charge, and withoutprotection of a bailee). I think he was purchasing all the benefits of a bailment for hire. "Where a fair association provided parking space for cars and charged for the same, held, that the association occupied the position of bailee." Chattanooga Interstate Fair Association v. Benton, 5 Tenn. App. 480. The case just cited and the instant case are largely identical on the facts, save that in the Benton case it was alleged and proved that an agent assured the bailor that his car would be taken care of, and that the fair association would be responsible for it. But such assurance would not be a sine qua non to the establishment of a bailment. The assurance would be no more than the law already required. While such assurance might be the better indicative of the intention of the alleged bailee to assume independent and exclusive possession, the absence of such assurance would not in itself defeat a bailment otherwise established. The ruling of the Benton case, not being qualified as resting upon the necessity of such assurance of care, I think is persuasive to the extent that a fair association, under the allegations and facts of the instant case, is a bailee for hire. *Page 880
3. I dissent from the ruling in the majority opinion that the judgment was not authorized by the evidence. In addition to substantiating the allegations, the evidence more fully showed that a certain portion of the fair ground was given over to the parking of cars, into which the plaintiff first entered by buying a ticket for the car, then driving forward about thirty feet, when his ticket was collected and the employees of the defendant started directing and controlling the movements of the plaintiff to the point of parking; and that upon leaving the car the plaintiff bought tickets for himself and his wife and entered the fair ground proper, which was separated by a fence from the parking section. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3404532/ | The defendant's conviction was authorized by the evidence; and the special assignments of error show no cause for a reversal of the judgment.
DECIDED JUNE 7, 1944. REHEARING DENIED JUNE 24, 1944.
The accused was convicted of the offense of bigamy; his motion for a new trial was denied, and that judgment is assigned as error. *Page 325
Upon the trial the State proved, and the defendant admitted, that the defendant's second marriage was consummated while his first wife was alive, and that he had knowledge of that fact; but he contended in his statement to the jury that, before his second marriage, he had paid to Allen Caruthers, a lawyer, $250 to obtain for him a divorce from his first wife; that subsequently the lawyer told him the divorce had been granted, and that he was free to marry again, and that he in good faith believed that he had obtained a valid divorce; and that his lawyer died shortly before his second marriage. The defendant introduced no evidence, either oral or documentary, but relied solely on his unsworn statement to the jury. "Any person being married who shall marry another person, the lawful husband or wife being alive, and knowing that such lawful husband or wife is living, shall be punished by confinement at labor in the penitentiary for not less than two years nor more than 10 years." Code, § 26-5602. In a prosecution for bigamy the State makes out a prima facie case when it proves that the man accused married two different women at different times, and that when he married the second time he knew that his first wife was alive. Robinson v. State, 6 Ga. App. 696,700 (65 S.E. 792). In that case this court said: "The State would make a prima facie case by proving that the defendant contracted a second marriage while his first wife was living; and if the defendant could prove that his wife had been absent and unheard of by him for more than five years prior to the time the second marriage was contracted, or that his first wife had obtained a divorce, he would be entitled to an acquittal. While the evidence on the part of the State does not show affirmatively that the defendant's wife had not been absent and unheard of by him for the statutory period, it was not necessary that the State should show this in order to make out a prima facie case. It does not appear, otherwise than from the defendant's statement, that his wife had been absent and unheard of by him for more than five years prior to the time he married the second time; and since the jury may disregard his statement, even when uncontradicted, the verdict [of guilty] is not without evidence to support it." In the instant case it appears from the defendant's statement that his New York lawyer told him that he had obtained a divorce for him from his first wife in the State of Arkansas, and that he believed his lawyer's statement. *Page 326
He failed to say in his statement that he had any personal knowledge of the divorce — he had only his lawyer's statement, and he failed to produce any court record or copy thereof, or any scrap of paper, or any testimony, to support his belief that he had obtained a divorce. In Robinson v. State, supra, the court stated: "As we have already said, however, the State would probably make a prima facie case by proving the first marriage, that the first wife is still living, and the second marriage, since there is a presumption that the first marriage once created has never been dissolved. 5 Cyc. 700. In the case of Parnell v.State, [126 Ga. 103, 54 S.E. 804], there is a dictum that if the defendant honestly believes that he has a right to make the second marriage and it appears that this honest belief is theresult of reasonable diligence to ascertain the truth [italics ours], then the jury would have the right to infer that the defendant had no criminal intent, and was therefore not guilty of any crime. We think this dictum sound. . . And where honest belief, founded on reasonable diligence to ascertain the truth, appears, the defendant should be acquitted, if the jury has a reasonable doubt as to whether or not there is criminal intent — a necessary ingredient of every crime." Generally, the question as to whether or not the defendant had employed reasonable diligence to ascertain the truth, is for the jury to determine, but where, as here, there is no evidence, and nothing in the defendant's statement, to show or to infer that he had exercised any diligence whatsoever to ascertain whether he had obtained a valid divorce from his first wife, the general rule does not apply.
The contention of the defendant that the burden is on the State to prove that he had never procured a divorce from his first wife is untenable. The State makes out a prima facie case when it proves the first and second marriages, and that the first wife was living at the date of the second marriage. To require the State in a bigamy case to negative a divorce from the first wife would be to require in many cases an impossibility, since it would necessitate the examination of the records in every jurisdiction in which a divorce might have been obtained and the submission of proof that it was not obtained in any of such jurisdictions.
The verdict was amply authorized by the evidence; and, under the particular facts of this case, including the charge of the court, the assignments of error upon certain excerpts from the court's *Page 327
charge, and upon the refusal to give certain requests to charge, fail to show cause for a new trial.
Judgment affirmed. MacIntyre and Gardner, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714973/ | 851 So.2d 839 (2003)
William RUDOLF, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D03-786.
District Court of Appeal of Florida, Second District.
August 8, 2003.
*840 SILBERMAN, Judge.
William Rudolf appeals the trial court's order summarily denying his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand (1) for an evidentiary hearing on his claim of ineffective assistance of counsel with respect to the State's plea offers; and (2) for the trial court to vacate the conviction and discharge Rudolf on count four, grand theft, based on a double jeopardy violation (which Rudolf couched as an ineffective assistance claim). We affirm the denial of his ineffective assistance claim with respect to the failure to raise a voluntary intoxication defense, and we affirm the remainder of the trial court's summary denial without discussion.
On September 9, 1999, Rudolf was convicted and sentenced for (1) grand theft motor vehicle; (2) possession of paraphernalia; (3) resisting an officer without violence; and (4) grand theft. He was sentenced to time served on the misdemeanor counts, counts two and three. The trial court imposed a five-year sentence on count one, consecutive to a five-year sentence on count four. This court issued its per curiam affirmance of Rudolf's direct appeal on July 2, 2000. Rudolf filed his amended motion for postconviction relief on July 9, 2001.
The charges arose when the victim, Robert Droud, reported that his truck was stolen from a convenience store parking lot on January 4, 1999. Count one charged the theft of the truck, and count four charged the theft of Droud's personal property (the stereo and tools in the truck). In August 1999, the State offered five years' probation, which Rudolf claims that defense counsel advised him to reject. He asserts that counsel advised him that she could get the charge dropped to unauthorized use of a motor vehicle and that he would get time served or at the most twenty-two months in prison; she did not advise him that he was facing a potential twelve-year term of imprisonment (five years for each third-degree felony and one year for each misdemeanor). He claims that if he had known he was facing twelve years, he would have taken the offer of five years' probation.
On the morning of trial, the State offered five years in prison. The defense rejected the offer and stated that Rudolf only scored 38.7 points and that he would plead out to time served. The trial court explained that under the new Criminal Punishment Code it had the discretion to sentence Rudolf to probation or up to the maximum sentence of twelve years' imprisonment. Defense counsel then asked what *841 happened to the offer of probation. The State explained that when it made the offer a month earlier it did not know that Rudolf had previously been placed on probation for grand theft motor vehicle and that he had violated probation after two weeks by again being charged with grand theft motor vehicle. Defense counsel stated, "I guess we are [going to trial] if we can't plead out to probation."
The trial court ordered the State to respond to Rudolf's amended motion for postconviction relief with respect to the claims of ineffective assistance of counsel. In its response, the State pointed out that the misdemeanor offense of unauthorized temporary use of a motor vehicle was repealed in 1982, citing chapter 82-164, section 2, Laws of Florida. The State admitted that it did not know what discussions occurred between Rudolf and defense counsel. The State argued that the trial court informed Rudolf of the twelve-year maximum, that he rejected the offer of five years in prison just before the trial began, and that "there was no offer of probation on the table at the time of trial."
To prevail on a claim of ineffective assistance of counsel, the defendant must prove "deficient performance by counsel and subsequent prejudice resulting from that deficiency." Cottle v. State, 733 So.2d 963, 965 (Fla.1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Defense counsel can be ineffective in failing to properly advise the defendant of a plea offer. Eristma v. State, 766 So.2d 1095, 1096 (Fla. 2d DCA 2000). When the alleged ineffectiveness concerns the rejection of a plea offer, the defendant must prove: "(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State's plea offer would have resulted in a lesser sentence." Cottle, 733 So.2d at 967; see Eristma, 766 So.2d at 1096. The prejudice to the defendant that Strickland requires "is inherent in the defendant's inability to make an informed decision concerning whether to accept the plea offer." Eristma, 766 So.2d at 1096 (citing Cottle, 733 So.2d at 969); see Aebi v. State, 842 So.2d 888 (Fla. 2d DCA 2003).
Here, Rudolf alleged that in August 1999 the State offered him five years of probation. He further alleged that he rejected the offer because his counsel told him that he would get time served, or at most, twenty-two months in prison, when he in fact was facing a potential twelve-year sentence. After trial, the court imposed a consecutive sentence resulting in total prison time of ten years. Thus, the offer of five years' probation and the later offer of five years in prison were less than the sentence he received.
The State points out that it later withdrew the offer of probation. However, the Florida Supreme Court stated in Cottle that "an inherent prejudice results from a defendant's inability, due to counsel's neglect, to make an informed decision whether to plea bargain, which exists independently of the objective viability of the actual offer." Cottle, 733 So.2d at 969. Consequently, Rudolf stated a sufficient claim on counsel's failure to properly convey the plea offer to him, and we reverse the summary denial on this claim and remand for an evidentiary hearing. As to the remedy should he prevail at the evidentiary hearing, we suggest "a `good faith resumption of plea negotiations.'" Eristma, 766 So.2d at 1097 (quoting Lewis v. State, 751 So.2d 715, 718 (Fla. 5th DCA 2000)); see Feldpausch v. State, 826 So.2d 354, 357 (Fla. 2d DCA 2002) (stating that "[t]his court has no authority to require *842 the State to reoffer its original plea offer").
Rudolf contends that trial counsel was also ineffective for failing to move for judgment of acquittal on count four on double jeopardy grounds. This is not a proper claim for ineffective assistance because the double jeopardy violation is fundamental error. Although counsel may have been deficient in failing to assert it, the issue could have been raised on direct appeal, see Johnson v. State, 747 So.2d 1027 (Fla. 2d DCA 1999), and a double jeopardy violation is likewise cognizable as a claim in a rule 3.850 motion. See Tidwell v. State, 790 So.2d 1184 (Fla. 2d DCA 2001); Plowman v. State, 586 So.2d 454 (Fla. 2d DCA 1991). Thus, we treat Rudolf's claim as one asserting a double jeopardy violation as a result of the convictions for grand theft motor vehicle (count one) and grand theft (count four).
In count four the State charged grand theft based on Rudolf taking Droud's "money or property" valued at $300 or more. At trial, the State proved that when Droud's truck was recovered the stereo system was missing, along with some of Droud's work tools. Droud testified that he had installed the stereo system in the truck, and he valued it at well over $300. He also testified that some work tools he referred to as "stilts" were missing and that they were worth about $250. Droud stated that some small tools such as hammers were missing, but he did not place a value on them.
The State is precluded by double jeopardy principles from obtaining convictions on both grand theft of a motor vehicle and grand theft of the contents when "there is one act of taking (of the car and its contents) with no geographic or temporal separation between two acts of taking." Beaudry v. State, 809 So.2d 83, 84 (Fla. 5th DCA 2002); see Sirmons v. State, 634 So.2d 153 (Fla.1994); Johnson v. State, 597 So.2d 798 (Fla.1992). Beaudry was convicted of grand theft of a motor vehicle and grand theft for computer equipment that was in the vehicle at the time Beaudry stole the car. The Fifth District reversed the conviction that was based on the grand theft of the computer equipment on double jeopardy principles. Similarly, Rudolf should not have been convicted of grand theft of the tools in Droud's truck.[1]
We recognize that the Fourth District upheld convictions for grand theft of a motor vehicle and grand theft of clothing in the same car in McInnis v. State, 605 So.2d 153 (Fla. 4th DCA 1992). The McInnis court relied on State v. Getz, 435 So.2d 789 (Fla.1983). However, in Johnson, the supreme court explained that the separate convictions for grand theft of a firearm and petit theft of a calculator in Getz were proper because in that burglary of a dwelling the defendant separately took each item with the intent to take each item. In contrast, Johnson "in one swift motion" wrongfully took a handbag which contained money and a firearm; thus, the supreme court held that his convictions for both grand theft of the money and grand theft of the firearm violated double jeopardy. Johnson, 597 So.2d at 798. Here, Droud left his truck with the keys in it while he went inside a convenience store. Rudolf got in the truck and drove away. He committed one act of stealing a vehicle, *843 with whatever contents might be in it, as did the defendant in Beaudry.
In addition, the State sought to establish the grand theft in count four based on a stereo system that was installed in the truck when the truck was stolen. Rudolf argues that the installed stereo system was a fixed part of the vehicle, like the engine, transmission, doors, windows, lights, and mirrors, and that, in fact, he could not have stolen the truck without the stereo system. He also asserted that to allow a separate grand theft conviction for the stereo system would allow the State to obtain additional grand theft convictions based upon a breakdown of parts of the vehicle that have a value of $300 or more. We agree that the claim of grand theft violates the prohibition against double jeopardy because there was only one act of taking, which was the taking of the truck. See Beaudry, 809 So.2d at 84.
Rudolf's conviction on count four is barred by double jeopardy principles, and is fundamental error which is apparent on the face of our record. Accordingly, no further hearing is necessary before the trial court, and we direct the trial court to vacate the conviction and discharge Rudolf on count four.
Rudolf also claims that counsel was ineffective for failing to raise voluntary intoxication as a defense and for failure to request the voluntary intoxication instruction. At the time the crimes occurred, January 4, 1999, voluntary intoxication was a defense to the specific intent crime of grand theft. See Locklear v. State, 847 So.2d 543 (Fla. 2d DCA 2003); Spivey v. State, 680 So.2d 565 (Fla. 1st DCA 1996); Ch. 99-174, § 1, at 968, Laws of Fla. (creating section 775.051, Florida Statutes, which abrogates voluntary intoxication as a defense, effective October 1, 1999).
A review of the trial transcript reflects, however, that Rudolf testified that he borrowed the truck from Droud in exchange for five pieces of rock cocaine and that Droud wanted the cocaine so that he could give it to a "trick girl" and have sex with her. Rudolf surmised that Droud later claimed his truck was stolen so that his wife would not know he was using cocaine and "playing around with some girl." On cross-examination, Rudolf denied that he stole the truck.
The voluntary intoxication defense is used to negate the specific intent necessary to commit the crimes. See Locklear, 847 So.2d 543. Rudolf's claim, in essence, is that he was innocent because he had the specific intent to borrow the car, and he did not steal it. Thus, any failure to raise a voluntary intoxication defense does not prejudice him when he claims that he did not steal the car, the charge in count one, or the personal property in the car, the charge in count four. See Rivera v. State, 717 So.2d 477, 485 (Fla.1998). Therefore we affirm the trial court's summary denial of this claim.
Affirmed in part, reversed in part, and remanded.
WHATLEY and SALCINES, JJ., Concur.
NOTES
[1] We note that the State's evidence failed to prove that the tools were worth $300 or more, as is necessary to sustain a grand theft conviction. See § 812.014(2)(c), Fla. Stat. (1999). Rudolf raised counsel's failure to move for judgment of acquittal on this basis as another ground of ineffective assistance; however, we need not consider this claim based on our disposition of the double jeopardy claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/93309/ | 144 U.S. 142 (1892)
BEDON
v.
DAVIE.
No. 210.
Supreme Court of United States.
Argued March 16, 1892.
Decided March 28, 1892.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA.
*143 Mr. S.P. Hamilton and Mr. Mills Dean for plaintiff in error.
Mr. Edward McCrady, Jr., for W.R. Davie, defendant in error.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is an action at law, in ejectment, brought in the District Court of the United States for the Western District of South Carolina, in June, 1873, by Doctor William Richardson Davie and others against James B. Heyward, the younger, and others, to recover a plantation situated in Chester district, in South Carolina, on the Catawba River, and known as Landsford.
Both the plaintiffs and the defendants respectively claimed the property under the will of General William Richardson Davie, the elder, made in September, 1819. The testator died in November, 1820. His will was duly executed to pass real estate, and was duly admitted to probate in the proper court. The plaintiffs were great-grandchildren of the testator, and were four in number. They were the children, and only heirs at law, of William Richardson Davie, doctor of medicine, who was the eldest male issue of Allen Jones Davie, who was a son of the testator.
The defendants were James B. Heyward, the younger, and *144 Sarah B., his wife; Mary Wysong and her husband, Dr. R. Wysong; Alice Bedon and Josiah Bedon, minor children of the late Josiah Bedon and Mary, his wife, now the said Mary Wysong; Hyder D. Bedon; William Z. Bedon; Julia Izard and her husband, Allen C. Izard; Jeannie B. Farrow and her husband, T. Stobo Farrow; A. Stobo Bedon; Richard Bedon; and Robin Carr Bedon, a minor.
Sarah B. Heyward, the wife of James B. Heyward, the younger, was called Sarah Bedon before she was married, and was the daughter of Julia A. Davie and her husband, Richard S. Bedon, the said Julia A. being the only daughter of Hyder Alli Davie, who was a son of the testator.
Mary Wysong, the wife of Dr. R. Wysong, was the widow of Josiah Bedon, who was a son of Richard S. Bedon and his wife, the said Julia A. Davie. Alice Bedon and Josiah Bedon were the children of the said Josiah Bedon and Mary, his wife. Hyder D. Bedon, William Z. Bedon, Julia Izard, Jeannie B. Farrow, A. Stobo Bedon, Richard Bedon and Robin Carr Bedon were children of the said Richard S. Bedon and Julia A., his wife. The defendant Josiah Bedon was a minor when this suit was brought, and during the entire time of its pendency, to a final judgment.
The clause of the will of the testator under which the title was claimed by both parties is set forth in the margin.[1]
*145 Frederick William Davie, named in the will, died in April, 1850, leaving no issue surviving him. He left a last will and testament, duly executed, appointing as his executors Frederick G. Fraser and William Davie DeSaussure.
Hyder Alli Davie, named in the will, died in June, 1848, before the death of Frederick William Davie. He left no male children, but only a daughter, the said Julia A., who, after the death of General William Richardson Davie, married the said Richard S. Bedon.
Allen Jones Davie, named in the will, was the eldest son and the eldest child of the testator, and when the testator died had three sons and a daughter, the eldest of which sons was Dr. William Richardson Davie, father of the four plaintiffs.
Frederick William Davie, under the will, entered into possession of the plantation and held the same during his lifetime. At his death, Dr. William Richardson Davie entered into the possession of it, and held it until he died, in January, 1854, intestate. In January, 1873, the defendant Heyward and his wife entered into possession of the plantation.
In July, 1873, on the petition of the defendant James B. Heyward for the appointment of a guardian ad litem for the infant defendants Alice Bedon and Josiah Bedon, as minor children of the late Josiah Bedon and Mary, his wife, then Mary Wysong, the said infants residing in the State of Maryland, *146 an order was made by the Circuit Court appointing said Heyward their guardian ad litem in this cause, and authorizing and directing him to appear and defend the action on their behalf. On August 1, 1873, Heyward, as their guardian ad litem, filed an answer for them, stating that, by reason of their tender years, they were wholly ignorant of the facts and statements set forth in the complaint, and, therefore, not able to admit or deny the same, but that they submitted their case to the discretion of the court and prayed its judgment for their costs and disbursements.
The defendants Heyward and wife, Dr. and Mrs. Wysong, Hyder D. Bedon, William Z. Bedon, Julia Izard and her husband, Jeannie B. Farrow and her husband, A. Stobo Bedon, and Richard Bedon, answered the complaint, in July, 1873, setting up, as a special defence, that Dr. William Richardson Davie, in his lifetime, while in possession of the plantation, executed to Frederick G. Fraser, as executor of Frederick William Davie, deceased, a lease of the plantation; that afterwards, Dr. William Richardson Davie and said Fraser both of them died, and William Davie DeSaussure became the sole executor of Frederick William Davie; that, as such executor, the said DeSaussure, being in possession of the plantation under said lease, was impleaded in the court of common pleas for Chester district, to answer to Lewis A. Beckham and William F. DeSaussure, survivors of themselves and Frederick William Davie, trustees under the will of Hyder Alli Davie, in an action of trespass for breaking and entering the premises in question; that said defendant pleaded not guilty, and the cause was tried before a jury at the fall term, 1855, and the jury found a verdict for the plaintiffs; that the defendant appealed, and the case was heard upon exceptions, in the Constitutional Court of Errors, the highest court of the State of South Carolina, at May term, 1856; that the appeal and motion of the defendant for a new trial were dismissed, and a judgment was entered in favor of the plaintiffs in that action, September 29, 1856, reciting a special verdict in the court of common pleas, which found certain facts set forth therein, and concluded by stating that if, upon those facts, the court should *147 be of opinion that the plaintiffs were entitled to the land, then the jury found for the plaintiffs, with $5 damages, but if upon those facts the court should be of opinion that the plaintiffs had no title to the land, then the jury found for the defendants; and that the judgment of the court thereupon was, that the plaintiffs were entitled to the land in question, and that they recover them against the defendants, with $5 damages and costs. The answer set up that by said judgment of the court of common pleas, and by the adjudication of the questions in litigation therein between the parties, by the Constitutional Court of Errors of the State, the rights of the plaintiffs in the present suit were fully and finally determined and adjudged, and they were barred thereby of all right of recovery against the defendants.
The plaintiffs filed a reply to that answer of Heyward and others, denying that the rights of the plaintiffs were determined and adjudged or in any way affected by the judgment in the case of Beckham v. DeSaussure, and alleging that the proceedings and judgment were not had between the same parties as the parties to the present cause, and did not involve the same subject matter; that the plaintiffs herein were not privies in blood or estate to any party or parties in that cause; and that the plaintiffs were not bound by the judgment therein. The reply also denied that the defendant in the case of Beckham v. DeSaussure was in possession of the premises in question, at the time of the commencement of that suit, or at any other time. It alleged that, before the institution of proceedings in that cause, to wit, on June 28, 1850, a bill in equity was filed by said Fraser, as executor of Frederick William Davie, wherein Dr. William Richardson Davie, (the father of the plaintiffs,) Richard S. Bedon and Julia A. Bedon, his wife, (the father and mother of the defendants Hyder D. Bedon, William Z. Bedon, Julia Izard, Jeannie B. Farrow, Sarah B. Heyward, Richard Bedon and Robin C. Bedon,) Josiah Bedon, (the father of the infant defendants Alice Bedon and Josiah Bedon,) Hyder D. Bedon and William Z. Bedon, defendants in this suit, and the said Beckham and William F. DeSaussure, surviving trustees under the will of Hyder Alli *148 Davie, (and plaintiffs in the suit mentioned in the answer of Heyward and others,) were impleaded as defendants, the subject matter of which action was the title of Dr. William Richardson Davie (the plaintiffs' father) to the said premises, under the will of General William Richardson Davie; that, the said cause having been heard, a decree of the court was duly entered, at Columbia, for the District of Richland, on March 19, 1851, whereby the title in fee of the said father of the plaintiffs in the land was confirmed and he was declared to be in rightful possession thereof; that that decree stands as the judgment of the court, unreversed and of force; and that the respective defendants in this cause, as parties, or privies to parties, in the cause of Frederick G. Fraser, Executor v. Dr. William Richardson Davie and the other defendants therein, were bound, concluded and determined by the decree therein, confirming the title of the said father of the plaintiffs in this cause to the premises in question.
The present case was tried before a jury. It found, on August 8, 1873, a special verdict, which is set forth in full in the margin.[1] Upon that special verdict, the District Court *149 entered a judgment, on the 16th of August, 1873. That judgment recited service of process on the various defendants, *150 and among others on the infant defendants, Alice Bedon and Josiah Bedon, minor children of the late Josiah Bedon and *151 Mary, his wife, then Mary Wysong, by publication and mailing through the post-office, and the appearance of said Alice *152 Bedon and Josiah Bedon, by James B. Heyward, their guardian ad litem, appointed by order of the court on July 28, 1873, and the service of their answer, and the service of the other answer and of the reply. The judgment also set forth at length the special verdict, and stated that the questions of law reserved for argument had been argued, and that it was adjudged that the plaintiffs recover of the defendants (including Alice Bedon and Josiah Bedon, minor children of Josiah Bedon and Mary, his wife, then Mary Wysong) the possession of the real property mentioned in the complaint, and the sum of five dollars for the withholding thereof, and the costs of the action.
The infant defendant Josiah Bedon, having become of age on December 21, 1885, sued out a writ of error from this court, on December 9, 1887, to review the said judgment. The writ was allowed by Judge Simonton, under § 1008 of the Revised Statutes, having been brought within two years after the judgment was entered, exclusive of the term of the disability of Josiah Bedon as an infant. 33 Fed. Rep. 93.
We are of opinion that the judgment must be affirmed, on the ground that the question raised by the plaintiff in error was adjudicated conclusively, so far as he is concerned, by the decree in the suit in equity of Fraser v. Davie. To that suit Josiah Bedon, the father of the plaintiff in error, and Mrs. Julia A. Bedon, the grandmother of the plaintiff in error, and her husband, Richard S. Bedon, were made defendants. The only title set up by the plaintiff in error is one alleged to be derived through his father and his grandmother. The decree in the suit of Fraser v. Davie, is found by the special verdict in this case to have been entered March 19, 1851, and to have been a decree dismissing the bill. The bill was taken pro confesso against all the defendants. Notice of an appeal from that decree was given, but the appeal was not prosecuted and was finally abandoned, and the decree remains unreversed.
The reply in this suit states that a decree in the case of Fraser v. Davie was duly entered on March 19, 1851, whereby the title in fee of Dr. William Richardson Davie, the father of the plaintiffs herein, in the premises in question, was confirmed, *153 and he was declared to be in rightful possession of said premises. The special verdict finds that the bill in the suit of Fraser v. Davie claimed that the title to the land was not in Dr. William Richardson Davie, but was either in the heir general of Hyder Alli Davie, (namely, Mrs. Julia A. Bedon,) or in the grandsons of Hyder Alli Davie, the sons of Mrs. Julia A. Bedon, and that the said bill was taken pro confesso against all the defendants, including Dr. William Richardson Davie, Richard S. Bedon and his wife, Julia A. Bedon, and their sons, Josiah Bedon, Hyder D. Bedon, and William Z. Bedon, and Lewis A. Beckham, and William F. DeSaussure, trustees under the will of Hyder Alli Davie.
It is claimed by the plaintiff in error, that the court below erred in not finding that the plaintiffs in this suit were concluded by the case of Beckham v. DeSaussure; and in not finding that Hyder Alli Davie took an estate in fee in the plantation; and in finding that Josiah Bedon, Hyder D. Bedon and William Z. Bedon were not issue male of Hyder Alli Davie living at his death, through their mother, Julia A. Bedon; and in not finding that Josiah Bedon, senior, the father of the plaintiff in error, died leaving issue male in the person of the plaintiff in error, and that the title to the plantation became vested in the father absolutely, in fee, on the birth of the plaintiff in error; and in finding that, as to the plaintiff in error, the decree in Fraser v. Davie determined the right of the possession of the plantation, and was res adjudicata.
The bill of complaint in Fraser v. Davie alleged that, by the will of the testator, the plantation, on the death of Frederick William Davie without male issue, passed to the heirs of Hyder Alli Davie, he having left, as male issue, the sons of his daughter, Julia A. Bedon, who were alive at the time of his death. The prayer of that bill was for the rescission of the lease from Dr. William Richardson Davie to Fraser, on the grounds set forth in the bill.
It is objected by the plaintiff in error, that the bill in Fraser v. Davie was filed in Richland district while the plantation was in Chester district. We perceive no force in that objection.
*154 The case of Fraser v. Davie is reported in 9 Rich. Law, 568, note, and that of Beckham v. DeSaussure, in 9 Rich. Law, 531.
The decree of March 19, 1851, in the suit of Fraser v. Davie, was prior to the judgment of September 29, 1856, in the suit of Beckham and DeSaussure, as trustees against DeSaussure, executor of Frederick William Davie, and as the plaintiffs in the present suit, the heirs at law of Dr. William Richardson Davie, were not parties to the suit of Beckham against DeSaussure, the judgment in that suit was of no force or effect in favor of the plaintiff in error, as against the decree in the suit of Fraser v. Davie.
The plaintiff in error, therefore, has no case, and the judgment is
Affirmed.
MR. JUSTICE GRAY was not present at the argument and took no part in the decision of this case.
NOTES
[1] Item I give and devise all the rest and residue of my lands and real estate in the State of South Carolina to my son Frederick William Davie to him and his heirs forever, subject however to the incumbrances mentioned in this will. And it is my will and I do hereby devise that in case of the death of my said son Frederick William, without issue male living at the time of his death, then in that case I give and devise the lands and real estate, so devised as above to the said Frederick William to his brother Hyder Alli Davie to him and to his heirs forever, subject however to the incumbrances in this will mentioned. And in case the said Hyder Alli Davie die without issue male living at the time of his death, then in that case I give and devise the said lands and real estate to the eldest issue male of my son Allen Jones Davie then living when such event shall take place; that is of the sons he may have living at my death, to him and his heirs forever, subject to the incumbrances, directed in this will. And should my said son Frederick William have issue male, and such issue male of my said son Frederick William should, or shall die without issue male living at the time of his death, then in that case it is my will and I do devise the lands and real estate, so devised and described above first to my son Hyder Alli Davie and his heirs, and then to the eldest issue male living at the time, of Allen Jones Davie, under the same limitations, and on the same contingencies, and in the same order and manner, as above directed, and devised, should my son Frederick William die without any issue male living at the time of his death, to them and their heirs forever. And should my son Hyder Alli Davie have issue male living at the time of his death and such issue male shall die without leaving issue male living at his death then in that case I give and devise the said lands and real estate so described and devised above should they so have vested under the above contingencies in such issue male to the eldest issue male then living of my son Allen Jones Davie being of his sons living at my death to him his heirs and assigns forever.
[1] Special Verdict.
We find:
First. That the plantation at Landsford, the subject of this suit, was the property of General William Richardson Davie at his death, which occurred on the fifth day of November, 1820, and that General Davie devised the plantation under the residuary clause in his will, dated the 17th September, 1819.
Second. That the family of the testator at the time of his death consisted of the following persons:
1. Allen Jones, (son,) born 16th February, 1785, (who resided out of the State of South Carolina,) married, and who then had issue, three sons and one daughter, the eldest of whom was William Richardson, the father of the plaintiffs in this case, which son, Allen Jones, by a second marriage had issue, five daughters and another son.
2. Hyder Alli, (son,) born 29th October, 1786, (who resided near, but not with the testator,) married, and who then had issue, one daughter, Julia A. then a minor unmarried, but who afterwards married Richard S. Bedon and was mother of the defendants, as hereinafter mentioned.
3. Mary Haynes, (daughter,) born 25th June, 1790, then unmarried, residing with the testator; afterwards the wife of John Crockett, with issue, two sons and two daughters. 4. Sarah Jones, (daughter,) born 12th March, 1793, then the wife of William F. DeSaussure, with issue then born, two daughters, and a son who was born December, 1819, and was called after the testator, William Davie DeSaussure, and which daughter afterwards had issue, another daughter and two sons.
5. Martha Rebecca, (daughter,) born 13th October, 1796, then unmarried, residing with the testator; afterwards the wife of Churchill B. Jones, with issue, a son and daughter.
6. Frederick William, (son,) born 11th April, 1800, then residing with the testator, an infant and unmarried.
Third. That upon the death of General Davie, Frederick William entered into and took possession of the said plantation under the devise in his father's will, and held the same until his death, which took place on the 29th April, 1850, he having had but one child, a son, who died in infancy before his father's death, to wit, in 1832.
Fourth. That Hyder Alli died before Frederick William, to wit, 13th June, 1848, having had issue but one child, a daughter, before mentioned, to wit, Julia A., who after General Davie's death had intermarried with Richard S. Bedon, by whom she had issue as follows: 1, Josiah Bedon, now deceased, leaving a widow, Mary, now the wife of Doctor R. Wysong, and two children, Josiah and Alice Bedon, minors; 2, Hyder Davie Bedon; 3, William Z. Bedon; 4, Julia, wife of Allen C. Izard; 5, Jeannie B., wife of T. Stobo Farrow; 6, Sarah B., wife of James B. Heyward, the younger, (the said James B. Heyward and Sarah B., his wife, being now the true tenants of the lands in question;) 7, A. Stobo Bedon; 8, Richard Bedon; and 9, Robin Carr Bedon; the last of whom is still a minor, and all of whom now living are defendants in this cause, and of whom Josiah, Hyder D. and William Z. were living at the death of their grandfather, Hyder Alli, and A. Stobo born after his death and before the death of Frederick William Davie.
Fifth. That Hyder Alli, by his last will and testament, a copy of which is made part of this verdict, devised and bequeathed his whole estate, real and personal, to Frederick William Davie, Lewis A. Beckham and William F. DeSaussure, in trust for his daughter, Mrs. Bedon, and her children.
Sixth. That Frederick William, during his last illness, sent for Dr. William R. Davie, then a resident of Alabama, to come to him at Landsford to arrange with him for the continued occupation of the lands by the widow of Frederick William after his death; that Dr. William R. Davie did accordingly make a journey to South Carolina, but did not reach Landsford until after his uncle's death; that upon the arrival of the said Dr. William R. Davie from Alabama, after the death of the said Frederick William, he entered upon and took possession of the said lands and, in compliance with his uncle's wishes, leased the same to Frederick G. Fraser, the brother of the widow and the qualified executor of Frederick William, for a term of ten years, at an annual rent of twenty thousand pounds of ginned cotton; that Frederick G. Fraser, as executor, having thus, in compliance with the wish of Frederick William Davie, secured a lease of the place for a number of years, placed Churchill B. Jones, son of Martha Rebecca Jones and nephew of the said Frederick William, in charge of the place, and the widow, with the said Churchill B. Jones, continued to reside upon the said lands, and, with the said Churchill B. Jones, worked the said plantation in the interest of the estate of Frederick William until dispossessed under the proceedings in the case of Beckham and DeSaussure against DeSaussure.
That on the 28th of June, 1850, Frederick G. Fraser, brother of the said widow and the said executor of Frederick William Davie, filed a bill in equity in Richland district, praying to be relieved from the said lease on the ground of mistake, as he had since been advised that the title to the said lands was not in the said William R. Davie, but either in the heir general of Hyder Alli or in the grandsons of Hyder Alli, the sons of Mrs. Julia A. Bedon; that to this suit William R. Davie, Richard S. Bedon and Mrs. Julia A. Bedon and their sons, Josiah Bedon, Hyder D. Bedon, and William Z. Bedon, and Lewis A. Beckham and William F. DeSaussure, trustees under the will of Hyder A. Davie, were made parties and the bill taken pro confesso against all the defendants.
That the cause came on to be heard before Chancellor Johnston, who, on the 19th March, 1851, by decree dismissed the said bill; that notice of appeal from this decree was given, but the appeal was not prosecuted and finally abandoned, and the decree remains unreversed; copies of which lease, bill and decree are made part of this verdict.
That William R. Davie, then residing in Alabama, remained in possession of the lands by his tenants under the lease until his death, which took place on the 4th January, 1854.
Seventh. That some time after the death of Dr. William R. Davie, to wit, on the 9th September, 1854, an action of trespass to try title was brought by Lewis A. Beckham and William F. DeSaussure, as survivors of Frederick William Davie, Lewis A. Beckham and William F. DeSaussure, trustees under the will of Hyder Alli Davie, against William D. DeSaussure, in the court of common pleas for Chester district, and upon a special verdict found it was adjudged that the said plaintiffs, Lewis A. Beckham and William F. DeSaussure had right and were entitled to the said lands, and that the said plaintiffs should recover against the said defendant, William F. DeSaussure, the said lands; which judgment was, upon appeal, confirmed by the court of errors for the State of South Carolina, a copy of the record in which case is made part of this verdict; that under this judgment the said Lewis A. Beckham and William F. DeSaussure obtained possession of the said lands in the year 1856. Eighth. That Frederick G. Fraser, executor of Frederick William Davie, departed this life on or about the 1st February, 1852, and that thereupon William D. DeSaussure, who had been named as executor in the will of Frederick William Davie, qualified thereon.
Ninth. That some time after the decision of the court of errors of the State of South Carolina of the case of Beckham and DeSaussure against DeSaussure, and final judgment entered thereon in the court of common plea for Chester district, proceedings were had in the court of equity for Chester district, by and among the children of Mrs. Julia Bedon, for a partition of the Landsford plantation among said children; that under said proceedings the said Landsford plantation was sold by the commissioner in equity for Chester district, and that Churchill B. Jones became the purchaser, paying a portion of the purchase money in cash and giving his bond, with a mortgage of the premises, for the balance; that thereafter Churchill B. Jones conveyed a considerable portion of said Landsford plantation to Cadwalader Rives and W.D. Fudge and remained in possession of the remainder himself; that thereafter the commissioner in equity for Chester district filed his bill in the court of equity for Chester district against said Churchill B. Jones, C. Rives and W.D. Fudge for a foreclosure of the mortgage given to said commissioner in equity to secure the purchase money; that under said proceedings a decree of foreclosure was had, a sale ordered, and the premises sold by said commissioner in equity, and that at said sale T. Stobo Farrow, as the agent of the children of Mrs. Julia Bedon, became the purchaser, and that under said title the defendants now hold, and that the defendant James B. Heyward, the younger, is now in possession under a lease from T. Stobo Farrow, as said agent of said heirs.
Tenth. That the said plaintiffs, William R. Davie, Mary Fraser, wife of Stephen McPherson Woolf, John McKenzie Davie and Allen Jones Davie, are the only surviving heirs at law of the said Dr. William R. Davie, who died intestate, and that the said plaintiffs are citizens of the State of Texas, and are of the ages following, to wit: William R. Davie, born 15th June, 1843; Mary Fraser Woolf, born 5th September, 1845; John McKenzie Davie, born 24th October, 1847; and Allen Jones Davie, born 31st July, 1850.
If upon the facts thus found the court shall be of opinion that the plaintiffs are entitled to the land, then we find for the plaintiffs the land described in the plat made by Charles Boyd, dated 17th May, 1813, as mentioned in the plaintiffs' complaint, and which lands are designated and contained within the lines indicated in the said plat by the numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, and the islands opposite, and five dollars damages; but if upon the facts found the court shall be of opinion that the plaintiffs have no title, then we find for the defendants. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/93316/ | 144 U.S. 210
12 S.Ct. 838
36 L.Ed. 407
STATE ex rel. QUINCY, M. & P. R. CO.v.HARRIS et al., Judges.
April 4, 1892.
Proceeding on mandamus, brought in the circuit court of Sullivan county, Mo., by the state, upon the relation of the Quincy, Missouri & Pacific Railroad Company, against Anderson W. Harris, George T. Todd, and Thomas Montgomery, as judges of the county court of Sullivan county, to compel them to issue $80,000 of bonds to the said railroad company. Judgment for defendants, which was affirmed in the state supreme court. 8 S. W. Rep. 794. Plaintiff brings error. Dismissed.
It appeared that a special election had been held, under the provisions of the Missouriconstitution of 1865, and Gen. St. 1865, p. 338, § 17, which authorize counties to subscribe for railroad stock upon two thirds of the qualified voters of the county voting therefor; that 1,049 votes were cast in favor of the proposed subscription, and 257 votes against it; that thereupon the county court made an order that the proposition to subscribe had carried; and that afterwards, in pursuance of an order of such court, the ex officio president thereof made a formal entry of such subscription on the books of the company. At the trial the voter's registration book of the county was received in evidence against plaintiff's objection, and it was afterwards admitted that it contained the names of 1,940 qualified voters. The following extract from the opinion of the state supreme court shows the grounds of its decision: 'The controlling question arising on the record is as to the propriety of the action of the trial court in admitting in evidence the said registration books. The objection to their admission was based mainly on the ground that after the election of February 22, 1870, the county court held that two thirds of the qualified voters voting at said election had voted in favor of the subscription, and directed the subscription to be made, which was thereafter made. It is established law in this state that county courts are only the agents of the county, with no powers except what are granted, defined, and limited by law; and, like all other agents, they must pursue their authority, and act within the scope of their powers. Wolcott v. Lawrence Co., 26 Mo. 272; Book v. Earl, 87 Mo. 246; Sturgeon v. Hampton, 88 Mo. 203. The power of the county court to subscribe to the stock of a railroad company was made by the constitution of 1865, and section 17, Gen. St. 1865, p 338, to depend upon the fact that two thirds of the qualified voters of the county, at a regular or special election held therein, should assent thereto. In the case of State v. Bransfield, 67 Mo. 331, this statutory provision, and the provision of the constitution of 1865 which gave origin to the statute, for the first time came before this court for construction, and it is there distinctly held that, under these provisions, the fact that a majority of voters voting at an election held for the purpose of determining whether or not a subscription should be made to the stock of a railroad company voted in favor of the subscription, was not sufficient to confer upon the county court the power to subscribe; but that, in order to the exercise of the power, it must appear that two thirds of the qualified voters assented to the subscription by voting in favor of it, and that the mere inaction of such voters, by failing to vote, did not express such assent, within the meaning of section 14, art. 11, Const. 1865. So it was also held in the case of Webb v. Lafayette Co., 67 Mo. 353; Ranney v. Baeder, Id. 476; State v. Walker, 85 Mo. 41. It is also held in the cases of State v. Bransfield, supra, and Ranney v. Baeder, supra, that the registration books may be properly received in evidence for the purpose of establishing the number of qualified voters in the determination of the question whether or not, at the election, two thirds of the qualified voters, as ascertained by the registration, assented to the subscription by voting for it. Taking, in this case, the admission that the registration books offered in evidence contained the names of 1,940 persons as qualified to vote in said county at said election, it is evident that two thirds of the qualified voters of the county of Sullivan did not assent to said subscription, as only 1,049 of said voters voted in favor of the subscription. Besides this, while there was evidence tending to show that the railroad company has complied with the conditions of the subscription, there was also evidence to show that it had not complied, and the trial court might, on this ground, have well denied the relief asked. The judgment, for the reasons given, is hereby affirmed.'
John P. Butler, for plaintiff in error.
A. W. Mullins, for defendants in error.
Mr. CHIEF JUSTICE FULLER.
1
The writ of error is dismissed because no federal question is involved, upon the authority, among other cases, of Railroad Co. v. Rock, 4 Wall. 177, 181; Water Co. v. Easton, 121 U. S. 388, 7 Sup. Ct. Rep. 916; New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 30, 8 Sup. Ct. Rep. 741; and St. Paul, M. & M. Ry. Co. v. Todd Co., 142 U. S. 282, 12 Sup. Ct. Rep. 281.
2
Writ of error dismissed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/95127/ | 175 U.S. 323 (1899)
NEW ENGLAND RAILROAD COMPANY
v.
CONROY.
No. 42.
Supreme Court of United States.
Argued April 3, 4, 1899.
Decided December 4, 1899.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.
*326 Mr. Frank A. Farnham for plaintiff in error.
Mr. James E. Cotter for defendant in error.
MR. JUSTICE SHIRAS, after making the above statement, delivered the opinion of the court.
It may be doubted whether the questions of law presented to us are really raised by the facts as certified. No facts are stated from which the jury might have found that, at the *327 time and place of the accident, there was any special reason why the brakemen should have been ordered by the conductor to take their places at the brakes, and therefore it is by no means evident that there was any dereliction of duty on the part of the conductor.
Nor is it clear that the negligence of the conductor, if negligence it was, in permitting the brakemen to ride in the caboose, was the proximate cause of Gregory's injuries. When the train parted the engineer had charge and control of the locomotive and attached cars, and it would seem to have been his duty, as it was within his power, to have prevented the subsequent collision of the detached parts. And, in that event, the case would be ruled by Baltimore & Ohio Railroad Co. v. Baugh, 149 U.S. 368, where it was held that the engineer and fireman of a locomotive engine, running alone on a railroad and without any train attached, are fellow servants, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former.
However, waiving these suggestions, and proceeding on the assumptions of the courts below that it was the duty of the conductor, at the time and place of the accident, to have the brakemen on the top of the cars where they could apply the hand brakes, and that his failure to do so was the proximate cause of the injury to the plaintiff's intestate resulting from the subsequent collision of the detached portions of the train, we meet the question, Would, in such a state of facts, the company be liable to the injured brakeman for the negligence of the conductor?
There is a general rule of law, established by a great preponderance of judicial authority in the English and in the state and Federal courts, that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. But there have been conflicting views expressed in the application of this rule in cases where the employer is a railroad company, or other large organization, employing a number of servants engaged in distinct and separate departments of service; and our present inquiry is whether the relation between *328 the conductor and the brakeman of a freight train is that of fellow servants, within the rule, or whether the conductor is to be deemed a vice principal, representing the railroad company in such a sense that his negligence is that of the company, the common employer.
Unless we are constrained to accept and follow the decision of this court in the case of Chicago, Milwaukee & St. Paul Railway Co. v. Ross, 112 U.S. 377, we have no hesitation in holding, both upon principle and authority, that the employer is not liable for an injury to one employe occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and that, accordingly, in the present case, upon the facts stated, the conductor and the injured brakeman are to be considered fellow servants within the rule.
We shall refer to a few of the authorities which establish these principles. Farwell v. Boston & Worcester Railroad, 4 Met. 49, is the leading case in Massachusetts. The question was thus stated by Chief Justice Shaw:
"This is an action of new impression in our courts, and involves a principle of great importance. It presents a case, where two persons are in the service and employment of one company, whose business it is to construct and maintain a railroad, and to employ their trains of cars to carry persons and merchandise for hire. They are appointed and employed by the same company to perform separate duties and services, all tending to the accomplishment of one and the same purpose that of the safe and rapid transmission of the trains; and they are paid for their respective services according to the nature of their respective duties, and the labor and skill required for their proper performance. The question is, *329 whether, for damages sustained by one of the persons so employed, by means of the carelessness and negligence of another, the party injured has a remedy against the common employer."
After discussing the principles of law and reason applicable to the case, the Chief Justice proceeded:
"In applying these principles to the present case, it appears that the plaintiff was employed by the defendants as an engineer, at the rate of wages usually paid in that employment, being a higher rate than the plaintiff had before received as a machinist. It was a voluntary undertaking on his part, with a full knowledge of the risks incident to the employment, and the loss was sustained by means of an ordinary casualty, caused by the negligence of another servant of the company. Under these circumstances the loss must be deemed to be the result of a pure accident, like those to which all men, in all employments, and at all times, are more or less exposed; and, like similar losses from accidental causes, it must rest where it first fell, unless the plaintiff has a remedy against the person actually in default; of which we give no opinion.
"It was strongly pressed in the argument, that although this might be so, where two or more servants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security; yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another. But we think this is founded upon a supposed distinction on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same and the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how *330 near or how distant must they be to be in the same or different departments? In a blacksmith's shop persons working in the same building at different fires may be quite independent of each other, though only a few feet distance. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet from each other and beyond the reach of sight and voice, and yet acting together.
"Besides, it appears to us, that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability, because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer; but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand toward him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow servant does not depend exclusively upon the consideration, that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liability, when it does not arise from express or implied contract, or from a responsibility created by law to third persons and strangers, for the negligence of a servant. . .. The responsibility which one is under for the negligence of his servant, in the conduct of his business, toward third persons, is founded on another and distinct principle from that of implied contract, and stands on its own reasons of policy. The same reasons of policy, we think, limit this responsibility to the case of strangers, for whose security alone it is established. Like considerations of policy and general expediency forbid the extension of the principle, so far as to warrant a servant in maintaining an action against his employer for an indemnity which we think was not contemplated in the nature and terms of the employment, and which, if established, would not conduce to the general good."
*331 In Holden v. Fitchburg Railroad Co., 129 Mass. 268, which was a case in which damages were claimed by a person employed to act as a laborer in the removal of a mass of earth overhanging the defendant's railroad, on the alleged ground of negligence on the part of a roadmaster who had charge of that portion of the railroad, the case of Farwell v. B. & W. Railroad, 4 Met. 49, was followed; and it was held, on principles established in that and subsequent cases, that it makes no difference that the servant whose negligence causes the injury is a submanager or foreman, of higher grade or greater authority than the plaintiff; and, in discussing the cases, Chief Justice Gray cited the case of Wilson v. Merry, L.R. 1 H.L. Sc. 326, 332, 334, 335, 336, and some of the observations made by the justices who delivered judgments therein in the House of Lords. Thus Lord Chancellor Cairns said:
"The master is not and cannot be liable to his servant unless there be negligence on the part of the master in that in which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business." "But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence, this is not the negligence of the master." Lord Colonsay said: "I think that there are duties incumbent on our masters with reference to the safety of laborers in mines and factories, on the fulfilment of which the laborers are entitled to rely, and for the failure in which the master may be responsible. A total neglect to provide any system of ventilation for the mine may be of that character. Culpable negligence in supervision, if the master takes the supervision on himself, or, where he devolves it on others, the heedless selection of unskillful or incompetent persons for the duty; or the failure to provide or supply the means of providing proper machinery or materials may furnish ground of liability."
*332 And see likewise the case of Clifford v. Old Colony Railroad, 141 Mass. 564, in which it was held that a section hand in the employ of a railroad corporation cannot maintain an action against the corporation for personal injuries caused by a collision between a hand car on which he was at work and an engine of a train run by servants of the corporation if the accident was occasioned by the negligence of the section boss and the engineer of the train.
In Sherman v. Rochester & Syracuse Railroad, 17 N.Y. 153, it was held by the New York Court of Appeals that a servant who sustains an injury from the negligence of a superior agent engaged in the same general business, can maintain no action against their common employer, although he was subject to the control of such superior agent, and that, accordingly, a brakeman upon a railroad whose duty it is not to apply the brakes except when directed by the engineer or conductor cannot maintain an action against their common employer for an injury resulting from the culpable speed at which the engineer and conductor ran the train. And this appears to be the settled doctrine in the State of New York. Besel v. N.Y.C. & H.R. Railroad, 70 N.Y. 171, 173; De Forest v. Jewett, 88 N.Y. 264.
The Supreme Court of Pennsylvania has held, in numerous cases, and it is settled law in that State, that a fellow servant, within the meaning of the rule, is any one serving the same master, and under his control, whether equal, inferior or superior to the injured person in his grade or standing, and the fact that the injured servant was under the control of the servant by whose negligence the injury was caused makes no difference. Weger v. Pennsylvania Railroad Co., 55 Penn. St. 460; Lehigh Valley Coal Co. v. Jones, 86 Penn. St. 432.
In Columbus & Indianapolis Central Railway v. Arnold, 31 Indiana, 174, the Supreme Court of Indiana held, reversing some previous cases to the contrary, that it is the duty of a railroad company to use all reasonable care in the proper construction of its road, and in supplying it with the necessary equipment, and in the selection of competent subordinates to supervise, inspect, repair and regulate the machinery, and to regulate and control the operation of the road; and that if *333 these duties are performed with care by the company, and one of the persons so employed is guilty of negligence by which an injury occurs to another, it is not the negligence of the master, and the company is not responsible.
Without following further the history of this subject in the courts of the several States, we may state that, generally, the doctrine there upheld is that of the cases herein previously cited, except in the courts of the States of Ohio, Kentucky and perhaps others, in which the rule seems to obtain that while the master is not liable to his servant for any injury committed by a servant of equal degree in the same sphere of employment, unless some negligence is fixed on the master personally, yet that he is liable for the gross negligence of a servant superior in rank to the person injured, and is also liable for the ordinary negligence of a servant not engaged in the same department of service.
Leaving the decisions of the state courts, and coming to those of this court, we find the latter to be in substantial harmony with the current of authority in the state and English courts. From this statement the case of Chicago, Milwaukee & St. Paul Railroad v. Ross, 112 U.S. 377, must, perhaps, be excepted, and to it we shall revert after an examination of our other cases.
Randall v. Baltimore & Ohio Railroad, 109 U.S. 478, was the case of an action in the Circuit Court of the United States for the District of West Virginia against a railroad corporation by a brakeman in its employ for personal injuries received, while working a switch, by being struck by one of its locomotive engines; and it was unanimously held by this court, affirming the court below, that the plaintiff could not recover, although the injury was occasioned by the negligence of the engineman in running his engine too fast, or not giving due notice of its approach. In the course of the opinion, which was pronounced by Mr. Justice Gray, he said:
"The general rule of law is now firmly established that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. This court has not hitherto had *334 occasion to decide who are fellow servants within the rule. . . . Nor is it necessary, for the purposes of this case, to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several States; because persons standing in such a relation to one another as did the plaintiff and the engineman of the other train are fellow servants, according to the very great preponderance of judicial authority in this country, as well as the uniform course of decision in the House of Lords, and in the English and Irish courts, as is clearly shown by the cases cited in the margin. They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object the moving of the trains."
Northern Pacific Railroad v. Herbert, 116 U.S. 642, was a case wherein it appeared that a brakeman suffered an injury by reason of the fact that the brakes which he was called upon to apply were broken and out of order, and it was held, per Mr. Justice Field, that it was the duty of the company to furnish sufficient and safe materials, machinery or other means by which service is to be performed, and to keep them in repair and order, and that as this duty had not been fulfilled the plaintiff was entitled to recover. There was another question in that case as to the import and effect of a statute of Dakota, in which Territory the accident took place, providing that "an employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employe," and that "an employer must, in all cases, indemnify his employe for losses caused by the former's want of ordinary care."
It was held, by a majority of the court, that these provisions *335 of the Dakota code expressed the general law that an employer is responsible for the injury to his employes caused by his own want of ordinary care; that his selection of defective machinery, which is to be moved by steam power, is of itself evidence of a want of ordinary care, and allowing it to remain out of repair, when its condition is brought to his notice, or by proper inspection might be known, is culpable negligence; that the cars, in that case, had been defective for years; that the brakes were all worn out, and their condition had been called to the attention of the yard master, who had control of them while in the yard, and might have been ascertained, upon proper inspection, by the officer or agent of the company charged with the duty of keeping them in repair, yet nothing was done to repair either brakes or cars; that, in such circumstances, the company had not exercised ordinary care to keep the cars and brakes in good condition; and that, therefore, under the provisions of the statute, the company was bound to indemnify the plaintiff. The minority of the court considered that the case was governed by the local statute, and that the statute, properly construed, relieved the employer, under the facts of the case, from liability to the injured employe. They declined to express any opinion upon the question of liability apart from the statute.
Quebec Steamship Co. v. Merchant, 133 U.S. 375, was an action brought in the Circuit Court of the United States for the Southern District of New York by one Merchant, who was employed as a stewardess of the steamship Bermuda, belonging to the defendant company. It appeared that the ship's company consisted of thirty-two persons, divided into three classes of servants, called three departments the deck department, the engineers' department, and the steward's department. The captain, the first and second officers, the purser, the carpenter and the sailors were in the deck department; the engineers, the firemen and the stokers were in the engineers' department; the steward, the waiters, the cooks, the porter and the stewardess were in the steward's department. At the close of the evidence the defendant's counsel requested the court to charge the jury to find a verdict for the defendant on the ground that the injury sustained by the plaintiff was occasioned, if there was *336 any negligence, by the negligence of a fellow servant. This the court refused to do. There was a verdict for the plaintiff, and the case was brought to this court. Here it was contended that, as the carpenter whose negligence was alleged as the cause of the accident, was in the deck department, and the stewardess in the steward's department, those were different departments in such a sense that the carpenter was not a fellow servant with the stewardess. But Mr. Justice Blatchford, speaking for the entire court, said:
"The injuries to the plaintiff were caused solely by the negligence of one or the other of two fellow servants who were in a common employment with her, and there was no violation or omission of duty on the part of the employer contributing to such injuries. Neither of her fellow servants stood in such relation to her or to the work done by her, and in the course of which her injuries were sustained, as to make his negligence that of the employer. The case, therefore, falls within the well settled rule, as to which it is unnecessary to cite cases, which exempts an employer from liability for injuries to a servant by another servant, and does not fall within any exception to that rule which destroys the exemption of the employer when his own negligence contributes to the injury, or when the other servant occupies such a relation to the injured party or to his employment, in the course of which her injury was received, as to make the negligence of such servant the negligence of the employer."
The next notable case is that of Baltimore & Ohio Railroad v. Baugh, 149 U.S. 368, in which it was held that an engineer and fireman of a locomotive, running alone and without any train attached, were fellow servants of the company, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former. In the course of the opinion Mr. Justice Brewer said:
"It may safely be said that this court has never recognized the proposition that the mere control of one servant over another in doing a particular piece of work destroys the relation of fellow servants and puts an end to the master's liability. On the contrary, all the cases proceed on the ground of some *337 breach of positive duty resting upon the master, or upon the idea of superintendence or control of a department. It has ever been affirmed that the employe assumes the ordinary risks incident to the service; and, as we have seen, it is as obvious that there is risk from the negligence of one in immediate control as from one simply a coworker. That the running of an engine by itself is not a separate branch of service seems perfectly clear. The fact is, all the locomotive engines of a railroad company are in the one department, the operating department; and those employed in running them, whether as engineers or firemen, are engaged in a common employment and are fellow servants."
We shall have occasion to revert to this case when we come to consider the decision in Chicago, Milwaukee & St. Paul Railroad v. Ross.
In Northern Pacific Railroad v. Hambly, 154 U.S. 349, it was held that a common day laborer in the employ of a railroad company, who, while working for the company under the order and direction of a section boss or foreman, on a culvert on the line of the company's road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company's road, is a fellow servant with such engineer and such conductor, in such a sense as exempts the railroad company from liability for the injury so inflicted; and Mr. Justice Brown, in delivering the opinion of the court, observed:
"To hold the principal liable whenever there are gradations of rank between the person receiving and the person causing the injury, or whenever they are employed in different departments of the same general service, would result in frittering away the whole doctrine of fellow service. Cases arising between persons engaged together in the same identical service, as, for instance, between brakemen of the same train, or two seamen on the same ship, are comparatively rare. In a large majority of cases there is some distinction either in respect to grade of service, or in the nature of the employments. Courts, however, have been reluctant to recognize these distinctions unless the superiority of the person causing *338 the injury was such as to put him rather in the category of principal than of agent, as, for example, the superintendent of a factory or railway, and the employments were so far different that, although paid by the same master, the two servants were brought no further in contact with each other than as if they had been employed by different principals."
In Central Railroad Co. v. Keegan, 160 U.S. 259, Baltimore & Ohio Railroad Co. v. Baugh was approved and followed in respect to its statement as to what constitutes a vice-principal.
In Northern Pacific Railroad Co. v. Peterson, 162 U.S. 346, an action had been brought in the Circuit Court of the United States for the District of Minnesota by Peterson to recover damages against the railroad company, alleged to have been caused by the negligence of the foreman of a gang of laborers, engaged in putting in repair sections of the railroad. The foreman had power to hire and discharge the hands who composed the gang, and had exclusive charge of their direction and management in all matters connected with their employment. The plaintiff recovered a verdict, and the judgment of the Circuit Court thereon was affirmed by the Circuit Court of Appeals of the Eighth Circuit. The cause was brought to this court, and the judgments of the courts below were reversed. The opinion of this court was by Mr. Justice Peckham, in which he reviewed the authorities, and expressed the following conclusions:
"The general rule is, that those entering into the service of a common master become thereby engaged in a common service and are fellow servants, and, prima facie, the common master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow servant. There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasonably *339 safe and competent men to perform their respective duties, and it has been held in many States that the master owes the further duty of adopting and promulgating safe and proper rules for the conduct of his business, including the government of the machinery and the running of trains on a railroad track. If the master be neglectful in any of these matters it is a neglect of a duty which he personally owes to his employes, and if the employe suffer damage on account thereof, the master is liable. If, instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect of that other, which, in such case, is not the neglect of a fellow servant, no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform as such. . . . The rule is that, in order to form an exception to the general law of non-liability, the person whose neglect caused the injury must be one who was clothed with the control and management of a distinct department, and not a mere separate piece of work in one of the branches of service in a department. This distinction is a plain one, and not subject to any great embarrassment in determining the fact in any particular case.
"When the business of the master or employer is of such great and diversified extent that it naturally and necessarily separates itself into departments of service, the individuals placed by the master in charge of these separate branches and departments of service, and given entire and absolute control therein, may properly be considered, with respect to employes under them, vice-principals and representatives of the master as fully and as completely as if the entire business of the master were placed by him under one superintendent. . . . This boss of a small gang of ten or fifteen men, engaged in making repairs upon the road wherever they might be necessary, over a distance of three sections, aiding and assisting the regular gang of workmen upon each section, as occasion demanded, was not such a superintendent of a separate department, nor was he in control of such a distinct branch of the work of the master, as would be necessary to *340 render the master liable to a coemploye for his neglect. He was in fact, as well as in law, a fellow workman; he went with the gang to the place of work in the morning, stayed there with them during the day, superintended their work, giving directions in regard to it, and returned home with them in the evening, acting as a part of the crew of the hand car upon which they rode. The mere fact, if it be a fact, that he did not actually handle a shovel or a pick, is an unimportant matter. Where more than one man is engaged in doing any particular work, it becomes almost a necessity that one should be boss and the other subordinate, but both are nevertheless fellow workmen."
The last case we shall refer to is that of Oakes v. Mase, 165 U.S. 363, where it was declared to be the settled law of this court that the relation of fellow servants exists between an engineer, operating a locomotive on one train, and the conductor on another train on the same road; and Northern Pacific Railroad v. Poirier, 167 U.S. 48, where it was held that a brakeman on a regular train of a railroad and the conductor of a wild train, on the same road, are fellow servants, and the railroad company is not responsible for injuries happening to the former by reason of a collision of the two trains, caused by the negligence of the latter and by his disregard of the rules of the company.
Without attempting to educe from these cases a rule applicable to all possible circumstances, we think that we are warranted by them in holding in the present case that, in the absence of evidence of special and unusual powers having been conferred upon the conductor of the freight train, he, the engineer, and the brakemen, must be deemed to have been fellow servants within the meaning of the rule which exempts the railroad company, their common employer, from liability to one of them for injuries caused by the negligence of another.
This conclusion is certainly sound unless we are constrained to hold otherwise by the decision in Chicago, Milwaukee & St. Paul Railroad v. Ross, already referred to. That was a case wherein an action was maintained, brought by a locomotive *341 engineer to recover damages received in a collision caused by the negligence of the conductor of the train; and it must be admitted that the reasoning employed by Mr. Justice Field, in his opinion expressing the views of a majority of the court, and the conclusion reached by him, cannot be reconciled with the other decisions of this court hereinbefore cited. We do not think that it would be proper to pass by the case without comment, nor yet to attempt to distinguish it by considerations so narrow as to leave the courts below in uncertainty as to the doctrine of this court on a subject so important and of such frequent recurrence. The case in hand exemplifies the perplexity caused by the Ross case. The trial court gave effect to it as establishing the proposition that the conductor of an ordinary freight train, with no other powers than those assumed to belong to such an employe by virtue of such a position, is a vice-principal, against whose negligence the company is bound to indemnify all the other employes on the train. Yet it is evident that the judges of the Circuit Court of Appeals did not find themselves able to either accept or reject such a proposition, as they have certified it to us as one on which they desire our instructions. Such a course plainly evinces doubts whether, in view of the decisions both before and since, the case of Chicago, Milwaukee & St. Paul Railroad v. Ross furnishes a safe and approved rule to guide the trial courts.
While the opinion in the Ross case contains a lucid exposition of many of the established rules regulating the relations between masters and servants, and particularly as respects the duties of railroad companies to their various employes, we think it went too far in holding that a conductor of a freight train is, ipso facto, a vice-principal of the company. An inspection of the opinion shows that that conclusion was based upon certain assumptions, not borne out by the evidence in the case, as to the powers and duties of conductors of freight trains. Thus it was said:
"We know from the manner in which railroads are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management *342 of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the terms is he a fellow servant with the fireman, the brakemen, the porters and the engineer; the latter are fellow servants in the running of the train under his direction; as to them and the train, he stands in the place of and represents the corporation."
We think these statements attribute duties and powers to conductors of freight trains much greater than ordinarily exist. Several of the instances of control assigned to the conductor really belong to the engineer, who, as railroads are now operated, is a much more important functionary in the actual movements of the train, when in motion, than the conductor. It is his hand that regulates the application of the brakes that control the speed of the train, and in doing so he acts upon his own knowledge and observation, and not upon orders of the conductor. Particularly has this become the case since the introduction of the air train-brake system. We can take notice of the act of March 2, 1893, c. 196, 27 Stat. 531, which enacted "that it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power-driving wheel brake and appliances for operating the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train-brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand-brake for that purpose." We do not refer to this statute as directly applicable to the case in hand, but as a legislative recognition of the dominant position of the engineer.
Cases are cited in the opinion in the Ross case in which it has been held by the Supreme Court of Ohio and by the Court of Appeals of Kentucky that railroad companies are responsible for negligence of conductors to other employes. *343 But those courts do not accept the ordinary rule exempting the master from liability to a servant for the negligent conduct of his fellows. At least, they do not apply such a rule to the extent that this and other courts have done. They hold that no service is common that does not admit a common participation, and no servants are fellow servants when one is placed in control over the other.
In so far as the decision in the case of Ross is to be understood as laying it down, as a rule of law to govern in the trial of actions against railroad companies, that the conductor, merely from his position as such, is a vice-principal, whose negligence is that of the company, it must be deemed to have been overruled, in effect if not in terms, in the subsequent case of Baltimore & Ohio Railroad v. Baugh, before cited. There Mr. Justice Brewer, in commenting upon the proposition applied in the Ross case, that the conductor of a train has the control and management of a distinct department, said:
"But the danger from the negligence of one specially in charge of the particular work is as obvious and as great as that of those who are simply coworkers with him in it. Each is equally with the other an ordinary risk of the employment. If he is paid for the one, he is paid for the other; if he assumes the one, he assumes the other. Therefore, so far as the matter of the master's exemption from liability depends upon whether the negligence is one of the ordinary risks of the employment, and, thus, assumed by the employe, it includes all coworkers to the same end, whether in control or not. But if the fact that the risk is or is not obvious does not control, what test or rule is there which determines? Rightfully this, there must be some personal wrong on the part of the master, some breach of positive duty on his part. If he discharges all that may be called positive duty, and is himself guilty of no neglect, it would seem as though he was absolved from all responsibility, and that the party who caused the injury should be himself alone responsible. It may be said that this is only passing from one difficulty to another, as it leaves still to be settled what is positive duty and what is personal neglect; and yet if we analyze these matters a little, there will appear less difficulty *344 in the question. Obviously, a breach of positive duty is personal neglect; and the question in any given case is, therefore, what is the positive duty of the master? He certainly owes the duty of taking fair and reasonable precautions to surround his employe with fit and careful coworkers, and the employe has a right to rely on his discharge of this duty. If the master is careless in the matter of employing a servant, it is his personal neglect; and if without proper care in inquiring as to his competency he does employ an incompetent person, the fact that he has an incompetent, and therefore an improper employe is a matter of his personal wrong, and owing to his personal neglect. And if the negligence of this incompetent servant works injury to a co-servant, is it not obvious that the master's omission of duty enters directly and properly into the question of responsibility? If, on the other hand, the master has taken all reasonable precautions to inquire into the competency of one proposing to enter into his service, and as the result of such reasonable inquiry is satisfied that the employe is fit and competent, can it be said that the master has neglected anything, that he has omitted any personal duty? And this notwithstanding that after the servant has been employed it shall be disclosed that he was incompetent and unfit? If he has done all that reasonable care requires to inquire into the competency of his servant, is any neglect imputable to him? No human inquiry, no possible precaution, is sufficient to absolutely determine in advance whether a party under certain exigencies will or will not do a negligent act. So it is not possible for the master, take whatsoever pains he may, to secure employes who will never be guilty of any negligence. Indeed, is there any man who does not sometimes do a negligent act? Neither is it possible for the master, with any ordinary and reasonable care, always to secure competent and fit servants. He may be mistaken, notwithstanding the reasonable precautions he has taken. Therefore, that a servant proves to be unfit and incompetent, or that in any given exigency he is guilty of a negligent act resulting in injury to a fellow servant, does not of itself prove any omission of care on the part of the master in his employment; and *345 it is only when there is such omission of care that the master can be said to be guilty of personal wrong in placing or continuing such servant in his employ, or has done or omitted aught justifying the placing upon him responsibility for such employe's negligence.
"Again, a master employing a servant impliedly engages with him that the place in which he is to work and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools and the machinery, than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools and the machinery, owes a positive duty to his employe in respect thereto. That positive duty does not go to the extent of a guarantee of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employe by whom that safety is secured or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employe, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore it will be seen that the question turns rather on the character of the act than on the relations of the employes to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor. But it may be asked, is not the duty of seeing that competent and fit persons are in charge of any particular work as positive as that of providing *346 safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken in providing such safe place and machinery, and so the former is as fully discharged, when reasonable precautions have been taken to place fit and competent persons in charge. Neither duty carries with it an absolute guaranty. Each is satisfied with reasonable effort and precaution."
Accordingly, the conclusion reached was that, although the party injured was a fireman, who was subject to the orders and control of the engineer, in the absence of any conductor, there was no liability on the company for negligence of the ad interim conductor.
That this reasoning and conclusion were inconsistent with those in the Ross case is not only apparent on comparing them, but further appears in the dissenting opinion in The Baugh case of Mr. Justice Field, who was the author of the opinion in the case of Ross. He said:
"The opinion of the majority not only limits and narrows the doctrine of the Ross case, but, in effect, denies, even with the limitations placed by them upon it, the correctness of its general doctrine, and asserts that the risks which an employe of a company assumes from the service which he undertakes is from the negligence of one in immediate control, as well as from a coworker, and that there is no superintending agency for which a corporation is liable, unless it extends to an entire department of service. A conclusion is thus reached that the company is not responsible in the present case for injuries received by the fireman from the negligent acts of the conductor of the engine. .. . The principle in the Ross case covers this case, and requires, in my opinion, a judgment of affirmance."
So likewise Mr. Chief Justice Fuller dissented in The Baugh case for the express reason that, in his opinion, the case came within the rule laid down in Chicago, Milwaukee & St. Paul Railroad v. Ross.
To conclude, and not to subject ourselves to our own previous criticism, of proceeding upon assumptions not founded on *347 the evidence in the case, we shall content ourselves by saying that, upon the facts stated and certified to us by the Judges of the Circuit Court of Appeals, we cannot, as a matter of law based upon those facts and upon such common knowledge as we, as a court, can be supposed to possess, hold a conductor of a freight train to be a vice-principal within any safe definition of that relation.
Accordingly we answer the first question put to us in the affirmative, and the second question in the negative.
MR. JUSTICE HARLAN dissenting.
I concurred in the opinion and judgment of this court in Chicago & Milwaukee Railroad v. Ross, 112 U.S. 377, and do not now perceive any sound reason why the principles announced in that case should not be sustained. In my judgment the conductor of a railroad train is the representative of the company in respect of its management, all the other employes on the train are his subordinates in matters involved in such management, and for injury received by any one of those subordinates during the management of the train by reason of the negligence of the conductor the railroad company should be held responsible. As the conductor commands the movements of the train and has general control over the employes connected with its operation, the company represented by him ought to be held responsible for his negligence resulting in injury to other employes discharging their duties under his immediate orders. If in such case the conductor be not a vice-principal, it is difficult to say who among the officers or agents of a corporation sued by one of its employes for personal injuries ought to be regarded as belonging to that class. Having these views, I am compelled to withhold my assent from the opinion and judgment in this case. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1714968/ | 402 So. 2d 1081 (1981)
Claude J. CRUMPTON
v.
STATE.
1 Div. 127.
Court of Criminal Appeals of Alabama.
May 26, 1981.
Rehearing Denied June 23, 1981.
*1082 Barry Hess and Daniel L. McCleave of Hess, Atchison & Stout, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
DeCARLO, Judge.
Murder in the second degree; fifteen years.
Appellant was indicted for the January 9, 1979, unlawful killing of his wife by shooting her with a pistol. He pleaded not guilty to the charge and later amended his plea to not guilty by reason of insanity. The jury found appellant guilty of second degree murder and the trial court set sentence in accordance with the jury's verdict.
The evidence presented by the State showed the following:
Mrs. Fay Howell testified that appellant and his wife had been her next-door neighbors for eight years. She stated that approximately 1:30 P.M. on January 9, 1979, appellant "came running into my house and was, you know, real upset and said he had killed his baby and then he changed it. He said, `Lou's killed herself. She said she didn't want to live any more. Come help me.'" Appellant told Mrs. Howell not to call his son because "he'll think I did it and he'll kill me."
On cross-examination, Mrs. Howell testified that appellant had a good reputation in the community, that he was truthful, hard-working, peaceful and law-abiding. Mrs. Howell was aware appellant and his wife were having domestic problems prior to the incident in question and that a divorce suit was pending.
Lane Winfield, a paramedic with the Prichard Fire Department, testified that he arrived at appellant's residence and found the deceased lying in the front yard on her stomach. Mr. Winfield stated that his examination of the deceased revealed no pulse or respiration.
John D. Powell of the Prichard Police Department testified that he went to appellant's residence on the date in question and observed the deceased lying in the yard and the appellant walking around wringing his hands saying, "My baby's been shot."
In response to Officer Powell's questions, appellant said that his wife, "had shot herself," *1083 and he led Officer Powell to the gun at the end of the kitchen table. Officer Powell stated that he did not see any blood or signs of a struggle near the gun. Appellant stated that his wife had the gun for protection. Appellant was placed under arrest and taken to the police station.
On cross-examination, Powell testified that he had known appellant for twenty years and that appellant had a good reputation in the community.
Detective Frank Dees of the Prichard Police Department testified that he received a .22 caliber pistol at the scene and took it, along with the deceased's clothing, to the toxicologist. Detective Dees stated that the pistol contained three or four spent shells and one or two live rounds. It was stipulated that Mrs. Crumpton's death was caused by a gunshot wound which entered her lung. It was further stipulated that the deceased was shot three times, twice in the arm and once in the back of the shoulder. The fatal bullet traveled through the deceased's arm and into her lungs.
Ms. Althea Lewis testified that she was friends with appellant and his wife and had known them for approximately ten years. Ms. Lewis recalled that in a conversation she had with appellant during the first part of January, 1979, appellant told her that he and his wife were going to have to go to court and he "didn't feel that it was right for him to have to move out and give up everything that he owned, you know, and worked for, and before he would do that, that he would kill Lou...."
On cross-examination, Ms. Lewis stated that when appellant said he would "kill her (Lou) first," it did not sound like him and she "didn't think he would do it."
Ms. Inez Crumpton, a sister of the deceased, testified that she was aware that the deceased had initiated a divorce proceeding against appellant. Ms. Crumpton stated that in a telephone conversation with appellant two or three months prior to the shooting, appellant told her the deceased "would die before he moved out of the house." Ms. Crumpton stated that she did not believe appellant at the time.
Detective J. R. Rigby of the Prichard Police Department, talked with appellant at the police station. Appellant was given his Miranda warnings and voluntarily signed a waiver and made a statement. In the statement appellant adhered to his story that the deceased "shot herself."
On cross-examination, Detective Rigby stated that he found appellant's house orderly. There did not "appear to have been any big fight going on in the place."
Richard D. Carter, a Firearms Examiner with the Department of Forensic Sciences, verified that the .22 caliber pistol recovered from the scene was the weapon that fired the fatal shot which struck the deceased. The deceased's robe, which contained three bullet holes, was also introduced. Mr. Carter said that in his opinion the revolver was fired from a distance of one-half inch, two inches and twelve inches, respectively, for the three gunshot wounds.
At the conclusion of Mr. Carter's testimony the State rested its case. The defense motion to exclude the State's evidence was denied and the defense presented its case.
Appellant testified in his own behalf that he and the deceased were married in June, 1960. He stated that the deceased had filed for a divorce in the latter part of 1978, and that he "didn't want one." Appellant stated that after the divorce proceedings were filed, he was of the impression "good progress" was being made towards a reconciliation. On the Saturday before the shooting appellant said that he and his wife "went out to a steak house and had supper and then we went clubbing until 2:00 o'clock in the morning." The following day he and the deceased went to his sister's house and "told her everything was going to be all right."
On the day of the shooting appellant testified that he got up around 11:00 A.M. The deceased had "gotten up around 7:00" A.M., left the house, and had come back about 11:30 A.M.
Appellant testified that while the deceased was fixing his lunch, she started an *1084 argument which lasted one and a half or two hours. The deceased told appellant, "I'm doing what I want to do. You always accused me of things so I'm just telling you I'm doing them now.... If you don't like it you can just kill me." Appellant stated that the deceased had been involved with several men during the last four or five years. "One time I caught her with one man, and, you know, actually caught her in there." Appellant testified that his wife's involvement with other men had been a constant source of friction between them. He stated that her past encounters were "all brought up" when the two were arguing. The last thing appellant remembered clearly before the shooting occurred was the deceased's telling him "it wasn't any of my business even if she decided she wanted to go with a nigger."
When questioned about his pending divorce from the deceased, appellant stated that his wife's filing for exclusive possession of their house "didn't make me mad, it just didn't help my feelings." Appellant testified that he could not remember telling Inez Crumpton he would have the deceased "dead" before she put him out of the house. Appellant also denied ever telling Althea Lewis he would "kill Lou before she makes me get out of that house."
However, appellant did testify that if he told Mrs. Howell, "I shot my baby, I killed my baby, Lou shot herself" then, "I said it." Appellant stated that he remembered very little about the incident, but did remember some people coming to the scene.
Appellant denied shooting the deceased. He said that he told "the truth" to Dr. Brown, a psychiatrist whom he consulted on the recommendation of his attorney after being charged with murder. He thought he told Dr. Brown that the deceased shot herself. "I don't remember if she shot herself, but I say she shot herself. I don't feel responsible."
Ms. Kay Phillips, appellant's sister, testified that she talked with the deceased on the Sunday night before she died and was of the opinion appellant and the deceased were getting back together. Ms. Phillips testified that appellant loved the deceased and was dependent on her.
Vincent P. Bitowf, appellant's former supervisor at the Alabama Shipbuilding and Dry Dock Company, testified that he knew appellant very well and "found him to be a very humble man, a hard working man." He stated that appellant had a good reputation and was truthful.
Daniel J. Maloney, also a co-worker of appellant, testified that he had known appellant at the Alabama Dry Dock since 1946, and that appellant's reputation was very good. Mr. Malone knew appellant to be truthful and "absolutely nonviolent."
Charles E. Gunter, appellant's immediate supervisor, testified that he had known appellant approximately thirty years. Mr. Gunter stated that appellant had a good reputation and was truthful.
Dr. Claude L. Brown testified that he saw appellant in his office twice after the shooting. Appellant told Dr. Brown that his marriage to the deceased had been a very mixed one in terms of gratification and frustration. The primary problems were brought on by the deceased's consistent infidelity over the years. Although appellant reproached the deceased concerning her behavior, he made no move to end their marriage. Four months prior to her death the deceased indicated that she was going to get a divorce. Appellant became extremely disturbed and increasingly unhappy at the thought of a divorce.
Dr. Brown stated that appellant gave him the following version of the shooting:
On the day of her death the deceased taunted appellant a great deal about seeing other men, living her own life and getting a divorce. Appellant felt hopeless and shot his wife with a .22 caliber pistol he had in his pocket. Immediately afterwards, he was overcome with terror and remorse and went to a neighbor to get help for the deceased.
Dr. Brown testified that there was no history of any relevant medical or psychiatric disorder in appellant's background. "Mr. Crumpton does not demonstrate any *1085 specific diagnosible mental disease. He does not have a mental disorder."
Dr. Brown explained that, psychologically, appellant viewed the deceased as a replica of his mother, and himself as the infant in their relationship. He stated that appellant made "a kind of unconscious treaty or pact" with the deceased. Dr. Brown said, "This pact being that I will stay with you forever regardless of what you do as long as you stay with me." Dr. Brown stated that the "pact" was working until the deceased, four months prior to her death, interjected a new element, the divorce, which ruined the balance of the equation. "This is tantamount in his unconscious to mother's leaving, which means death ... he felt this whole process is really being tantamount to his own annihilation." Then, out of an unconscious belief that it is "better to do it yourself than to have it done to you," appellant shot the deceased.
At the conclusion of Dr. Brown's testimony, the defense rested its case.
I
The State's evidence was sufficient to prove appellant's guilt beyond reasonable doubt. Section 13-1-70, Code of Alabama 1975. Although the evidence was conflicting in certain instances, any differences of fact were resolved by the jury. It is not the function of this court to re-weigh the evidence. We are required to review the evidence presented in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So. 2d 208 (1975), and not to substitute our judgment for that of the jury, Cumbo v. State, Ala.Cr.App., 368 So. 2d 871, cert. den., 368 So. 2d 877 (Ala. 1979).
II
Appellant maintains that the trial court committed reversible error when it gave the following statement of the law in its oral charge to the jury:
"As you know, there is conflict of testimony in this case. Of course, you must determine which witness you will believe and which witness you will not believe. However, I will tell you that every person who comes into this or any other courtroom in this State, takes the oath and takes this stand, is presumed to speak the truth. It is your duty as the jury in this case to reconcile the testimony of all of the witnesses with that of being the truth if it is possible for you to do so. As the sole triers of the facts, however, if you are unable to do this then you and you alone must decide which witness you are to believe and which witness you are not to believe, and if you believe any witness has willfully sworn falsely to a material fact, as the sole triers of the facts in this case you may disregard any person's testimony who has sworn falsely to any material fact. The reason for this being simply the law would presume that if a person would testify falsely in any one material aspect the law would presume that person would testify falsely in any other material aspect. So, like all of the other issues, you must determine which witness you are to believe and which witness you are not to believe.
"In weighing the testimony of the witnesses who took the stand you may consider many things, the demeanor of the witness on the stand, that is, his ability to see and know the facts about which he has testified; the relationship which he bears to the party; their interest in the suit; the manner in which the witness may be affected by your verdict; and, of course, any bias or prejudice which any witness may possibly possess.
"By way of a summary it has been said, and I think correctly so, that you are not required to leave your common sense outside of the jury room when you commence your deliberations. On the contrary, the law calls upon you 12 reasonable prudent men to use all of you combined wisdom, experience and common sense in sifting through the evidence, accepting the true and, of course, rejecting the false." (Emphasis added.)
Appellant excepted to this portion of the oral charge as follows:
*1086 "Next, Your Honor charged the jury that you may disregard any witness' testimony who has willfully sworn falsely to a material fact. The law presumes all of his testimony is false. We object to that in that law
"THE COURT: I don't think I said that, Barry.
"MR. HESS: I may have written it down wrong
"THE COURT: You did.
"MR. HESS.but that's the way I understood it.
"THE COURT: I said that the law presumes all witnesses speak the truth, but if any witness has sworn falsely to a material fact they may if they wish disregard that person's testimony. The theory of law being that if one would testify falsely in any one material aspect the law would presume he would testify falsely in any other material aspect, but go ahead.
"MR. HESS: We submit that the law does not presume that, it merely permits the jury to draw that conclusion if they see fit and this is falsely telling them that the law in fact presumes it to be totally false."
Appellant contends that the oral charge was defective in two ways: first, that the falsus in uno, falsus in omnibus (false in one thing, false in everything) instruction, while stated correctly once, was stated incorrectly twice because the trial court failed to instruct that the false swearing must be "willful;" and second, that the maxim is not a mandatory legal presumption but merely a permissible aid which the jury may use in weighing the evidence.
Initially, we note that the trial court's oral charge must be considered and construed as a whole and in connection with the evidence, and if, when so construed, it asserts a correct proposition applicable to the evidence, a disconnected part or sentence is not reversible error. Van Antwerp v. State, Ala.Cr.App., 358 So. 2d 782, cert. den., 358 So. 2d 791 (Ala.1978); Johnson v. State, 33 Ala.App. 159, 31 So. 2d 667, cert. den., 249 Ala. 433, 31 So. 2d 670 (1947).
An exception to the oral charge reaches only what the court did say, Grisham v. State, 147 Ala. 1, 41 So. 997 (1906). The objector or exceptor must select and recite, or state the substance of that part of the court's instruction to which the objection is made or the exception is taken. Knight v. State, 273 Ala. 480, 142 So. 2d 899 (1962); Walker v. State, 269 Ala. 555, 114 So. 2d 402 (1959); Crear v. State, Ala.Cr. App., 376 So. 2d 778, cert. den., 376 So. 2d 788 (Ala.1979); Oates v. State, Ala.Cr.App., 375 So. 2d 1285 (1979). An exception to a charge must be specific and must quote the court's approximate language so that the trial judge will have an opportunity to correct the error, if any. Orr v. State, 40 Ala.App. 45, 111 So. 2d 627, aff'd, 269 Ala. 176, 111 So. 2d 639 (1959).
An exception to a charge should set out the objectionable portion, and not merely refer to the charge on a particular subject. McGhee v. State, 178 Ala. 4, 59 So. 573 (1912); Shields v. State, 52 Ala.App. 690, 296 So. 2d 786, cert. den., 292 Ala. 749, 296 So. 2d 793 (1974). It is the accused's duty in excepting to separate the bad part from the good. Treadwell v. State, 168 Ala. 96, 53 So. 290 (1909). An exception merely describing the subject treated by the trial court in an oral charge is bad. Ex parte Cowart, 201 Ala. 55, 77 So. 349 (1917).
Based on the foregoing principles of law it is our opinion that appellant's exception did not adequately apprise the trial judge of the omission of the "willful" element of false swearing. In fact, in repeating the objectionable portion of the charge to the court, appellant stated that the trial judge "charged the jury that you may disregard any witness' testimony who has willfully sworn falsely to a material fact." (Emphasis added). Appellant's rephrasing, in which he recited what he thought he heard the trial judge charge, correctly states the very law appellant now complains was not stated. In other words, there was nothing in appellant's exception which alerted the trial judge to the omission of the word "willful" from the instruction. On the contrary, appellant's exception that the trial *1087 judge "charged" on willful false swearing did nothing more than reinforce to the judge that he had correctly charged the law on this point.
Thus, we hold that appellant's exception was insufficient to focus the trial judge's attention on any defect or misstatement in his instructions on willful false swearing, or to afford him an opportunity to make corrections on this matter. Exceptions to an oral charge cannot be made for the first time on appeal. Hall v. State, Ala.Cr.App., 375 So. 2d 536 (1979).
Even assuming that appellant had properly excepted to the charge, and we hold that he did not, the trial court's instruction was not so defective as to require reversal. The trial judge did instruct that the false swearing must be done "willfully," Pinkerton v. State, 246 Ala. 540, 22 So. 2d 113 (1945); Montgomery v. State, 17 Ala. App. 469, 86 So. 2d 132, cert. den., 204 Ala. 389, 85 So. 785 (1920), although he did not repeat the word "willfully" each time in connection with the phrases "sworn falsely" or "testify falsely" in his charge. Taken in context with the court's entire charge on this subject, we do not find that appellant's substantial rights were injuriously affected.
Appellant did correctly except to that portion of the charge stating "the law would presume that if a person would testify falsely in any one material aspect the law would presume that person would testify falsely in any other material aspect." Appellant, as can be seen from the record, excepted to what "the law presumes." The trial court's attention was thus focused in a sufficient manner on the claimed defect in his oral charge.
Appellant is correct that a falsus in uno charge requiring, instead of permitting, the jury to disbelieve a witness is error. See Lowe v. State, 88 Ala. 8, 7 So. 97 (1889); Watson v. State, 19 Ala.App. 267, 97 So. 118 (1923); Butler v. State, 16 Ala.App. 234, 77 So. 72 (1917). The charge must be phrased in permissive ("may disregard") rather than mandatory ("must disregard") terms. Lowe v. State, supra. See generally Annot. 4 A.L.R. 2d 1077 (1949).
It is our judgment that the trial court's additional sentence by way of explanation, and its use of the word "presume," did not amount to a mandatory falsus in uno, falsus in omnibus charge. The charge must be taken and construed as a whole, Van Antwerp v. State, supra. We note that immediately preceding the claimed objectionable portion of the charge, the court stated:
"As the sole triers of the facts ... you and you alone must decide which witness you are to believe...."
Likewise, immediately following the part to which appellant excepted, the court stated:
"So, like all of the other issues, you must determine which witness you are to believe and which witness your are not to believe."
When the foregoing statements are considered, along with the court's instruction that a willfully false swearing witness may be disregarded, we believe the clear impact of the whole charge to be permissive rather than mandatory. Therefore, we find no reversible error.
III
Next, the appellant complains that the trial court should have charged the jury on the law of mental disease or defect, a defense outlined in section 13A-3-1, Code of Alabama 1975, as amended.
The new Criminal Code, T. 13A, which includes section 13A-3-1, applies only to offenses committed on or after its effective date. Section 13A-1-7, Code of Alabama 1975. All of title 13A, including section 13A-3-1, took effect on January 1, 1980. Acts of Alabama No. 79-125 (May 29, 1979), section 13A-1-11, Code of Alabama 1975, as amended. The offense in the instant case occurred on January 9, 1979. Therefore, the law of mental disease or defect contained in section 13A-3-1, supra, has no application here.
We have examined the record and have found no error prejudicial to appellant.
*1088 Therefore, the judgment of conviction by the Mobile Circuit Court is affirmed.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3404661/ | The evidence supports the allegations of the indictment and sustains the verdict.
DECIDED JULY 3, 1943.
The defendant was convicted on an indictment which charged that he did "use, drive and operate an automobile, the same being a motor vehicle, on over and along a certain public street and public highway of said State and county, to wit: East Main Street and East 12th Street in the City of Rome, in an intoxicated condition, and while under the influence of intoxicating liquors, wines, beers, and opiates." He assigns error on the ground that the evidence does not support the verdict. These contentions are: (a) That there is no evidence to sustain the allegation that the defendant at the time was "under the influence of intoxicating liquors, wines, beers and opiates;" and (b) that the evidence does not show that the street was a "public" street. It is essential to allege and prove these two elements of the offense defined in the Code, § 68-307, for which the defendant was convicted. They are material and must be proved, as all other material allegations of an indictment or accusation must be proved. Brand v. State, 153 Ga. 639
(112 S.E. 829). They may be proved either by circumstantial or direct evidence. Jackson v. State, 56 Ga. App. 355
(192 S.E. 642).
Let us inquire whether or not the proof sustains the charge. Two police officers testified for the State. They were riding together, in the performance of their duty, in a car on East Twelfth Street in the City of Rome, Floyd County. They knew the defendant. He was coming out of the yard drunk and staggering *Page 620
He was too drunk to drive. Defendant stated that he had been collecting for coal. He peddled coal and ice from house to house in a truck, which was parked further up the street. The officers told him not to drive the truck, that he was too drunk. Defendant told them that if he was drunk to lock him up. They stated that they did not want to do that, but that defendant was drunk all right, and was too drunk to drive. The two officers next saw the defendant in his truck at the intersection of Main and East 12th Streets in the City of Rome. He was driving the truck all right, making the lights, but too drunk to drive, and driving while intoxicated. One of the officers testified that he did not smell anything on the defendant's breath, but that defendant was staggering, and too drunk to drive an automobile. The other officer testified on cross examination: "I know when I smell onions and I know when I smell garlic. I did not smell onions nor garlic on his breath, and I could not say whether I smelled whisky, wine or beer, I don't know what it was." The preceding quotation from the brief of evidence was the only testimony to sustain the allegation that the defendant was under the influence of whisky, wine, and beer. It is contended by counsel for plaintiff in error that a correct interpretation of the testimony is that the officer did not know what caused the condition of the defendant. With this construction we can not agree. The officer testified that he did not smell onions or garlic on defendant's breath. These odors are thus eliminated. If the witness had concluded with the next phrase, "and I could not say whether I smelled whisky, wine, or beer," there would be no doubt as to the meaning of such phrase, because it is clearly inferable therefrom that he smelled whisky, or wine, or beer, on the defendant's breath. But the contention arises from the last qualifying phrase, to wit, "I don't know what it was." We must therefore determine the sense in which the word "what" is used. In the relation of this word, does it mean that the officer did not know whether he smelled whisky, or wine, or beer, and that he did smell one of the three on defendant's breath? Or does it mean that he did not know whether the odor was that of whisky, or wine, or beer, or some other substance? We find in Webster's Collegiate Dictionary that the word "what" may be used as: "A compound relative, equivalent to which with an antecedent demonstrative." Giving the testimony of the policeman this construction, *Page 621
which we think is the right construction, the testimony reads: "I do not know which I smelled on defendant's breath, whisky, wine, or beer." Under the evidence of this case, the jury were authorized to find that the defendant was operating his motor truck while under the influence of intoxicating liquor, either whisky, wine, or beer.
It is further contended that there is no evidence to show that the street on which the defendant was operating his truck was a "public" street as alleged in the indictment. On this point the evidence shows that it was in the City of Rome; that the defendant was selling coal and ice from house to house; that there were intersecting streets with traffic lights, over which the defendant was operating his car. Such evidence is sufficient, circumstantially, to show that the streets were public, and the contacts which the officers made were in the discharge of their duty in policing the public streets of the City of Rome in Floyd County. The court did not err in overruling the motion for new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3997373/ | Two separate actions were instituted by different plaintiffs against the same defendants to recover damages suffered in an automobile collision. These actions were consolidated for the purpose of the *Page 649
trial below, and a jury rendered separate verdicts, one in favor of each set of plaintiffs and against the defendant Seattle Automobile Company only. Judgments were entered on the verdicts, and the Seattle Automobile Company has appealed, the cases being now consolidated for the purpose of this appeal.
The errors assigned raise only questions as to instructions given and refused. As to the instructions given, it seems to be conceded that they were excepted to only because they are inconsistent with the theory of the requested instructions which were refused, and if we should find that the requested instructions were improper, then there will be no necessity for discussing the errors assigned upon instructions given.
To make the situation plain, we first quote sufficient of the refused requests to present clearly appellant's position:
"The latent defect of an automobile is one which is hidden and unknown and which would not be discovered by ordinary and reasonable inspection. If the accident involved in this case was caused by such a defect and said defect was unknown to Seattle Automobile Company and to its employee, Holden, you cannot find a verdict against defendant Seattle Automobile Company."
"One who is intrusted with an automobile not his own, to be driven by him on a temporary occasion, is not bound to make any inspection of it to ascertain whether it is safe to be used upon the streets, in the absence of some knowledge on his part, or notice to him, that the same may be defective. He has the right to assume, in the absence of knowledge or notice to the contrary, that it is safe to be driven upon the streets; and he is not responsible for an accident occurring while he is driving it by reason of a defect in the automobile not so known to him, and of which he has no notice at such time prior to the happening of the accident as would enable him to take precautions against an accident of that character. Therefore, if you find that the automobile belonging to the defendant Anderson *Page 650
was entrusted to Holden as agent of defendant Seattle Automobile Company for a temporary purpose, and that said Holden had no knowledge or notice that said automobile was in any manner defective, then Holden was under no obligation to inspect or examine said automobile but was entitled to assume and act upon the assumption that it was safe, with reasonable care, to drive said automobile on the streets; and if you further find from the evidence that said automobile, without knowledge or notice to said Holden, was, in fact, defective or while being driven by said Holden without any negligence upon his part became defective, and that when said defect was discovered by him, if it was discovered, said Holden could not by the exercise of reasonable care prevent the accident involved in this case, and that said accident occurred by reason of such defective condition of said automobile, if it was defective, and not by reason of any negligence upon the part of said Holden, your verdict must be in favor of the defendant Seattle Automobile Company."
"The automobile driven by Holden, the agent of the defendant Seattle Automobile Company, not belonging to said defendant nor said driver, neither said defendant nor said driver had any duty to make said automobile fit and safe for use upon the streets. If said automobile, in fact was defective and unsafe to be driven on the streets and said defendant or Holden had knowledge or notice thereof it would be negligent to drive said automobile on the streets, but in the absence of such knowledge or notice, it would not be negligence on the part of said defendant or said Holden for Holden to drive said car upon the streets in the usual way and in the exercise of reasonable care."
"You are instructed that if a latent defect existed in the car driven by Holden, which was unknown to him at the time of the accident or at a time sufficiently near thereto that he could take precautions against the happening of the accident under investigation, and that said latent defect was the sole and proximate cause of the accident in controversy, you cannot find a verdict against the Seattle Automobile Company."
"You are instructed that by common acceptation, an unavoidable or inevitable accident means a casualty *Page 651
which happens when all the means which common prudence suggests have been used to prevent it; and if you find from the evidence in this case that the brakes of the car driven by J.H. Holden suddenly gave way so that he could not operate or control the car, and that said Holden was guilty of no negligence, and that the accident complained of was the direct and proximate result of the giving way of said brakes, and that said Holden, by the exercise of reasonable care, could not prevent the giving way of said brakes or the collision which resulted in injury to said plaintiffs, then your verdict must be for the defendant, Seattle Automobile Company."
Defendant Anderson was the owner of the Oakland car which the jury found caused the damage. Contemplating the purchase of a new car from the appellant, Anderson had intrusted his car to an employee of appellant to drive it to appellant's place of business for the purpose of examination and the appraisal of its turn-in value. The car apparently had been so examined, and appellant's employee was returning it to Anderson's garage, when he descended a steep grade and passed into an arterial highway, without stopping before such entry as the city ordinance requires, at a high rate of speed, crashing into the car occupied by respondents.
J.H. Holden, the driver of the Oakland touring car at the time of the accident testified:
"I went down the first hill, and everything was holding all right, otherwise I would have turned to stop, but I went down the second hill and I was actually over halfway down; there is a V that turns off, and I just got beyond that . . . the first thing I realized was that the only thing that was holding me back was my motor, as Mr. Bell stated, a car on a hill of that kind, an Oakland touring car of that year is not very heavy, and the motor will hold it down to a pretty reasonable speed. I probably agree with him that you probably could go down if you didn't meet anybody at the bottom, *Page 652
the whole way, without brakes, and not attain a speed of possibly more than twenty miles an hour. I suddenly realized that there was nothing holding me but my motor."
and on cross-examination:
"Q. You say, in coming down this second hill, you realized that the engine was the only thing that was holding; what gave you that impression? A. Naturally preparing to come to a stop at the bottom of the hill, because there is always a lot of traffic on Eastlake. Q. Were you trying to operate your foot or the emergency brake? A. I tried to operate my foot brake first. Q. Did you operate the emergency brake? A. I pulled it back, yes."
An automobile mechanic called on behalf of the appellant testified as follows:
"Q. Did you notice anything in the car that would cause the brakes to be inoperative? A. Yes, sir; by the motor dropping, letting it down, letting your motor drop and you have no brake, not any brake being connected onto the motor, which would make a difference in the adjustment. Q. In other words, the break in the motor leg? A. Would make a difference in your brakes. Q. That would result in inoperative condition of the brakes? A. Yes. Q. Could a person have full control of a car with the brakes becoming inoperative? A. No, sir, not on a hill."
On cross-examination the same witness testified:
"Q. That break in that piece of iron that was holding up the engine might have been caused by this Oakland car hitting the Studebaker at the bottom of the hill, might it not? A. It might have. Q. In other words, when those two cars came into collision, at the bottom of the hill, that is what might have caused that break? A. It might have. Q. It would be a very likely thing to happen? A. It could happen, yes. Q. It would be a very probable thing when that car came down the hill and hit the Studebaker coming down the hill fast enough to turn it over, that something would break, isn't that true? A. Yes." *Page 653
And on re-direct examination the same witness testified:
"Q. Assuming that the brakes gave way about half way up the hill, and assuming that Mr. Holden's statement, that they did give way, is true, what would you say then with reference to where the new break occurred, what would be your judgment? A. I would say that the strain of the brake, their extra strain on the motor leg which supports the foot pedal, the emergency brake, which would let your motor get twisted and break that. Q. In other words, that would let it down so that the brakes would not operate? A. Yes."
On re-cross-examination he further testified:
"Q. Now, do I understand your claim is that this photograph is not correct, that the break was clear across instead of just half way across? A. I withdraw that statement; instead of being clear across, there is a piece bent back on this part here that was not broke. Q. There was a portion of it that was not broke? A. Yes, sir; it was bent. Q. As a matter of fact, the motor leg, was, after the accident, and including the new break, was really just broken about half way across? A. No, that was broke over half way. Q. You think it was broken over half way? A. Yes. . . . Q. All you know was that a portion of the break was new and right after the accident, it was bright like this, but whether it was all made there beforehand, that that cracked in two, you don't know? A. I could not say. Q. There is not any sagging of the hanger that is shown, of any kind, is there? A. It does not show in the picture. Q. Now, it is your theory, as I understand it, that this break was the cause of the brakes being in the condition that you found them after the accident? Mr. Dore: I think this theory is immaterial. Mr. Turner: His opinion has been asked. The Witness: I said it might have been. Q. You would not want to say it was so or was not so, would you? A. No. Q. As a matter of fact, this hanger is something that hangs the engine to the frame is it? A. Yes, sir. Q. It is not connected up at all with the brake system, is it? A. The engine is connected with the brakes. Q. There are four of those hangers, aren't *Page 654
there, on a car? A. Two, one on each side, in back, and one in front, — three; there are only two of them. Q. One in front — there are three? A. One in front — there are three. Q. One in front of the car and this one on the right-hand side at the back? A. Yes. Q. As I understand after this accident and this car had been smashed up, the brakes were out of shape and you found this particular break and you thought it might have caused it, but you would not say it did, that is your attitude? A. Yes, it might."
Another experienced automotive engineer called by the defendant testified as to an examination made after the accident as follows:
"Q. I will ask you to state what was the condition of the brakes at the time you made the examination. A. When I put the car up on jacks to test the brakes, the brakes were in reasonably good operating shape. Q. Was there anything in the brakes or in the condition of the car that would show or cause the brakes to be inoperative, prior to the time that you saw it? A. Yes, sir. There was a condition that might have caused it to be inoperative. Q. What was the condition? A. This particular break just shown in this rear engine hanger. Q. Explain to the jury exactly how that could be brought about, how it would cause the brakes to be inoperative. A. It is pretty hard to do without the aid of a blackboard. I think I might be able to state it this way: There are two fixed parts on the car, fixed in longitudinal alignment, to which the brakes are attached; one is the rear axle and the other one is the engine and transmission case. The forward part of the brake, the part which you apply with your foot, is fastened to the transmission case. It is an integral part or continuitary part of the engine. The hand brake is also fastened on the case; so it is fastened to become an integral part of the engine, — anything that might cause the distance to be shortened between the rear of the engine hanger and the axle, if that would be shortened, would allow the brakes to become inoperative, anything that would cause those to lengthen would naturally cause them to be tighter *Page 655
than it was previously, — in other words, the distance between the engine hanger and the rear axle is a vital part of the brake mechanism, anything that causes that distance to become changed, either longer or shorter, alterates the right condition of the brakes. I think that answers your question. . . . A. I understand the question is the brakes were inoperative, to what might that be attributed? Q. That is the idea exactly, what would cause it? A. Anything, as I said a moment ago in my statement, anything which will shorten the distance between the engine and the rear axle will make those brakes inoperative. Q. What I want to know is whether that exact condition that you saw on it would result in this failure to hold. A. This particular condition shown in here, this break in the rear engine hanger would allow the engine to move a small degree forward and backward. Of course it would bend this metal and it would require a considerable amount of free movement, to make it move about, and it could move and the fact that the engine could move, would allow the brakes to become inoperative."
On cross-examination he further testified:
"Q. As I understand you to say, that this might have caused the brakes to become inoperative? A. Yes. Q. You would not feel justified in going so far as to say that it would necessarily do it. You say it could move? A. I don't know what you mean by `move'. Q. That was the word you used. A. I was answering a specific question. I want to know what you are asking me right now, so I will give you a specific answer. Q. What I want to know is this: assuming the same state of facts that was assumed in his question, that the brakes were found inoperative at the accident and after the accident also you found this condition in the car shown by break in the motor leg? A. Yes, sir. Q. Could you say that it was the cause of the brakes being inoperative, or simply that it might have been? A. It would all depend upon whether the break in the motor leg had allowed the engine to go forward and backward. The position of the engine is the thing that determines whether the brakes become *Page 656
inoperative or not, not the fact of the break. . . . Q. Did you examine the other hangers? A. Yes, sir. Q. Were they in good condition? A. I didn't see anything serious the matter with them. The brakes were not 100 per cent efficient, but they were in reasonably fair shape. Q. So far as you could testify, Mr. Taylor, with the break in the motor hanger, which is the old part of it, the brakes might have held, the brakes on that car might have worked entirely efficient? A. I would say they may have; I would not want to make a specific division as to where they would not work, because I do not know."
The manner of attaching the motor to the frame of an Oakland car is definitely explained by a witness produced on behalf of defendant Anderson who testified as follows:
"A. All Oakland make of cars have a third suspension. It has two bearings on the back and one in the front. The two bearings is hung, fastened to what we call the second cross member of the frame. The motor is fastened with what we call an `L' that bolts up against the frame and turns and bolts back again. This is the third member. Then the second member is a part of the `L' also. The motor sets upon this cross member. This `L' as put on there is merely put there to hold the motor in line with the frame. If that was to bend, to break at any time, the motor would still stay in line. It could not drop down. When we take the motor out of the frame, we have to put it on a hoist, and it is quite difficult to raise the motor out of the frame to get it out of there; it will not drop down, because it still sets on the cross member. If that piece was to break at any time the motor would still be in line with the frame and it would have no connections with throwing the brakes out of line. All three supports would have to break to throw the brakes out of line at all. If that was to break the motor could not move one sixteenth of an inch backward or forward, because the front support of the motor is fastened with two 5/8's bolts through the front cross member and that break would give us no cause for the motor to slip *Page 657
backward or forward in any way. If the motor was to drop down, say it would drop down, it would throw the brakes on instead of throwing them off."
The same witness on re-direct examination, in explanation of the testimony in the case with reference to the car being moved by pushing with the brake set, after the accident, testified as follows:
"Q. I will ask you whether or not the condition of the brakes afterwards, whatever the condition was, may not have been caused by the accident in the wreck rather than any trouble before? A. The way the car is now after the wreck, why the frame is bent all out of shape and naturally the brakes would not be in condition."
None of this testimony was specifically denied and there is much more in the record which corroborates it.
[1] In other words, we have here a motor sitting upon and within a rigid steel frame and bolted thereto by three hangers or motor legs, each of rigid construction, one in front and one on each side at the rear. The breaking, or breaking and bending, of only one of these hangers, and that a rear one, could not, unless all physical laws have been repealed, have permitted the motor to drop through the solid steel frame upon which it rested, and could not have permitted the motor to move on the steel frame toward the rear, without breaking, or at least bending, the other two hangers. So far as any witness attempts to say, the braking power could only be affected unfavorably by the motor moving toward the rear, thus loosening the brakes, and since the physical facts show that such movement did not and could not have occurred, we have nothing in the way of evidence which would have justified an instruction on latent defects.
[2] Moreover, there is no evidence that the break in the motor leg or hanger occurred before the accident *Page 658
happened, and so little upon which to base an inference that it did so break, that the jury would have been obliged to indulge in pure speculation to so find, but even if the jury was permitted to draw the inference that the hanger broke while the car descended the hill just prior to the accident, it could not be permitted to base an inference on such an inference. Having inferred that the hanger so broke, through pure speculation, it could not therefrom draw the inference that the motor, because of the breaking, moved toward the rear and so loosened the brakes as to cause them to become inoperative.
"It is frequently laid down as a general proposition or rule that an inference cannot be founded on an inference or drawn from another inference. Such statements must, however, be received with caution. Analysis of any step of reasoning almost invariably shows it to be complex or compound rather than simple. Until the chances of error are eliminated in one inference, it forms an unsound foundation for a second inference; but once the chances of error are removed the process of reasoning upon inference becomes not only safe but also the common mode of reaching conclusions." Jones Commentaries on Evidence (2nd ed.), Vol. 1, § 11.
So here, the chances of error in the first inference of the breaking of the hanger before the accident were never eliminated; therefore it is an unsound foundation upon which to base a second inference.
There was no sufficient basis in the evidence to justify the giving of an instruction on latent defects, even if it be conceded that such an instruction may be given in a proper case. That question will be reserved for consideration when based upon substantial evidence.
[3] The facts as already outlined also plainly call for the rejection of the second of the quoted requested instructions, because it clearly appears that the automobile brakes were not defective when the car was intrusted *Page 659
to the driver Holden, and, in any event, we think one who undertakes to drive an automobile on the public streets and highways must be charged with notice of everything that a reasonable inspection would disclose, whether the car belongs to him, or to another and is loaned or rented to him for the occasion.
Finding no error, both judgments are affirmed.
FULLERTON, C.J., MITCHELL, MAIN, and ASKREN, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3995675/ | TOLMAN, C.J., and MILLARD, J., dissent.
During the month of January, 1925, one R. Stoller, being the owner of a hotel in the city of Camas, Washington, leased the same for the term of *Page 336
five years to defendants, J.W. and Ethel M. Faw, who were the owners of the furniture and movable equipment used in the operation of the hotel property. Defendants, having operated the hotel for several months, early in May, 1925, assigned the lease, with Mr. Stoller's consent, and sold the furniture and equipment, to Stanley and Claire Koron, husband and wife, a portion of the purchase price being evidenced by a note in the sum of $1,470, secured by a mortgage on the hotel furniture.
During the month of June following, plaintiff, W.T. Hartford, claiming title to the lease and furniture as successor in interest to Mr. and Mrs. Koron, demanded of the agent of defendants Faw, who were then in possession of the hotel, that the same be turned over to him. Defendants, by their agent, refused to deliver possession to plaintiff, and defendants soon thereafter sold the property to an innocent purchaser who had no notice of plaintiff's claim.
Plaintiff instituted this action against defendants, claiming damages from them as for conversion of the lease and of the personal property. The action was tried to a jury, and at the close of plaintiff's case the court sustained defendants' motion for a nonsuit, discharged the jury and entered judgment dismissing the action, from which plaintiff appeals.
Appellant assigns as error rulings of the trial court sustaining respondents' objections to testimony offered on appellant's behalf; upon the ruling of the trial court in respondents' favor upon their motion for a nonsuit; upon the denial by the court of appellant's motion for a new trial; and upon the entry of judgment dismissing the action.
The lease from Mr. Stoller to respondents contains the following provision: "Party of the second part agrees not to assign this lease without the consent of *Page 337
the lessor." The written consent of the landlord to the assignment from respondents to Mr. and Mrs. Koron was endorsed thereon at the time of the assignment, but it is not contended that Mr. Stoller ever consented to any other transfer of the lease, save in so far as appellant contends that such consent was orally granted to him, concerning which matter the trial court refused to allow appellant to testify.
It appears from the evidence that Claire Koron, assuming to act for the community composed of her husband and herself, under date May 21, 1925, executed an assignment of the lease in blank, together with a bill of sale of the furniture, also in blank, which documents were, for a valuable consideration, by Mrs. Koron delivered to one R.H. Vose, of Portland, Oregon, who a few days later transferred the same to L.H. Wood, who in turn passed the documents on to one H.H. Hurst, who on or about June 12, 1925, sold the property to appellant. Mr. Hurst's name was written in the assignment of the lease, which had, up to the time of the transfer to him, remained in blank, and appellant's name was written into the bill of sale as purchaser thereunder. Neither the assignment of the lease nor the bill of sale were recorded.
Appellant admits that the second purchaser of the property from respondents, presumably the present owner thereof, obtained good title, he having purchased without notice, either actual or constructive, of appellant's claim.
We are of the opinion that, for error in the exclusion of testimony, the judgment appealed from must be reversed and the cause retried.
[1] Appellant offered to prove by his own testimony that, on the day after he had purchased the lease and the furniture from Mr. Hurst, he went to Camas and saw the landlord, Mr. Stoller; that he then *Page 338
told Mr. Stoller that he had purchased the lease and asked him if he would consent to the assignment thereof to appellant; that Mr. Stoller thereupon stated that he had no objection and that he consented to the transfer of the lease to appellant. Respondents objected to this testimony on the ground that the same was "incompetent, irrelevant and immaterial, hearsay evidence, not in the presence of the defendants, of a material fact or statement which cannot be proven orally," which objection the trial court sustained.
Assuming, without deciding, that Mr. Stoller's consent was necessary to the validity of the transfer of the lease to appellant, and that appellant was obliged to make proof of such consent as a part of his prima facie case, we are of the opinion that the trial court erred in sustaining respondents' objection to the testimony offered. The original lease did not require that the lessor give his consent to any assignment thereof in writing, and, under the provision of the lease above quoted, we see no reason why an oral assent by the landlord to the transfer to appellant would not be sufficient. If, then, this agreement on the part of Mr. Stoller to accept appellant as his tenant could rest in parol, appellant, as a party to this agreement with Mr. Stoller, could testify concerning the same, even in an action between himself and Mr. Stoller's original lessees, the respondents herein, to which action Mr. Stoller himself was not a party.
The supreme court of Illinois, in the case of Williams v.Jarrot, 6 Ill. 120, said:
"The general rule of the common law is, that parol evidence is admissible to prove the sale, delivery and ownership of personalty."
In the case of Barker v. Bradley, 42 N.Y. 316, 1 Am. Rep. 521, the court held, in an action against executors, that the plaintiff could show by parol testimony an *Page 339
agreement between defendants' testator and a third party whereby defendants' testator agreed to pay an account due from the third party to the plaintiff. It appeared that some writings had been later signed in part execution of the parol agreement, but the court held these writings were not executed for the purpose of embodying the entire agreement in writing, but that it was the intention of the parties that the agreement rest in parol, and that it was competent for the plaintiff to prove by oral evidence the parol agreement upon which the action was instituted.
The supreme court of Oregon, in the case of Hotel Marion Co.v. Waters, 77 Ore. 426, 150 P. 865, held that, in an action to recover rent pursuant to a written lease, the defendant was entitled to introduce parol testimony concerning the assignment of the lease to a third party and the consequent release of defendant from liability thereon.
In the case of Bourn v. Beck, 116 Kan. 231, 226 P. 769, an action for slander of title, it was held competent for the plaintiff to testify concerning his conversations with a third party concerning the proposed deal between them, which plaintiff alleged was interfered with by the defendants. The court said:
"Bourn was permitted to testify as to his conversations with Burton concerning the proposed trade between them. This is objected to on the ground that the testimony was hearsay and included self-serving declarations. The objection is not well taken. The evidence was not introduced in order to persuade the jury of the existence of some fact by showing them that Bourn or Burton had at some time said that it existed. The purpose was to show that an oral agreement was reached by the two, and the primary evidence of that was what each said at the time; the question at issue was whether or not words had been used creating a tentative contract. The evidence was of a `verbal act.' *Page 340
"`The theory of the hearsay rule is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, butwithout reference to the truth of the matter asserted, the hearsay rule does not apply.' (3 Wigmore on Evidence, 2nd ed., § 1766.)"
In 2 Jones on Evidence (edition 1913), p. 649, is found the following:
"It is hardly necessary to cite authorities to the obvious proposition that when proof is to be made of a parol contract, or when for other reasons the statements of a person are relevant, such statements may be proved by third persons who were present as well as by the one who used the language. In such case the statements are not hearsay, but substantive evidence. The following is an apt illustration: A was the owner of an omnibus and delivered it to C under an agreement that he might take it and use it, and that it should become his property on payment of one hundred and fifty dollars, but if he failed to pay that sum, it should remain the property of A, and C should pay a reasonable price for the use of it. No time of payment or terms for its use were ever agreed upon; and no part of the price was ever paid. C took the omnibus, and repaired it, and painted his name upon it, and used it until January, 1855, when it was attached as his property at the suit of B and sold on execution to B. After the seizure and before the sale, the attaching officer and the attorney of B had notice that it was A's property. A called a witness to prove the agreement under which the omnibus was delivered to C. B objected, because he was not present at the interview, and because C might be called as a witness. The court, in confirming the admission of the evidence, said: `The evidence offered to prove the agreement of sale was clearly competent. It was not hearsay, but legal proof of a contract of which there was no other *Page 341
or better evidence. It was evidence of a fact, and not of a mere conversation or declaration. It being necessary to prove the agreement, of which there was no written evidence, it might be shown by the testimony of anyone who was present when it was made. It was not necessary to prove it by the testimony of one of the parties to the contract. His evidence might have been more satisfactory and decisive; but it was no better evidence, in a legal sense, than that of any third person who was present when the agreement was made.' [The quotation being from the opinion of the court in the case of Blanchard v. Child, 7 Gray 155.]"
Mr. Wigmore, in the second edition of his work on Evidence, vol. 3, § 1770, p. 778, lays down the rule as follows:
"Where the utterance of specific words is itself a part ofthe details of the issue under the substantive law and thepleadings, their utterance may be proved without violation of the Hearsay rule, because they are not offered to evidence the truth of the matter that may be asserted therein.
"(1) In issues of contract in general, this use of utterances is of course common. In particular:
"(a) The making of a contract necessarily involves utterances by conversation, letter, telegram, and the like; and these are admissible under the issue."
Any contention that appellant's evidence should have been rejected for the reason that Mr. Stoller's evidence would have been of a better character is answered by the rule laid down in 22 C.J., p. 979, as follows:
"The courts have repeatedly held that the best evidence rule does not apply to parol evidence so as to exclude the otherwise competent testimony of a witness on the ground that another witness who might give more conclusive evidence ought to be called . . ." *Page 342
In the same volume, on page 996, is found the following concerning proof of title to personal property:
"Where the title to personal property is in issue, and it appears that the title is evidenced by a bill of sale or other similar written instrument, it is generally held that the writing is the best evidence, and parol evidence is not admissible unless the instrument is lost or its absence is otherwise satisfactorily explained. There is, however, authority to the effect that title to personalty can be shown by parol, even though there is a writing, not produced, evidencing the same fact, at least where the title is not a matter of record, or where the witness bases his statement upon his own knowledge, and the written evidence consists merely of entries made by him from such knowledge. So also, where the title to personal property is not directly in issue and is only collaterally involved, or it is necessary for a party to make only a prima facie showing of ownership, the best evidence rule is not applicable and the title or prima facie
right of ownership may be proved by parol evidence, even though the bill of sale, or other instrument transferring title, is required by statute to be recorded."
We accordingly hold that the testimony offered by appellant concerning the consent of Mr. Stoller to the transfer of the lease to appellant constituted primary or original evidence concerning a fact which appellant was entitled to prove as part of his case in chief, and that the trial court erroneously sustained respondents' objection thereto.
[2] In regard to the bill of sale signed by Mrs. Koron, purporting to convey the furniture and equipment in the hotel, respondents argue that, as the same was signed by the vendor, with the place for the name of the grantee left blank, and as the instrument in that condition was passed from one vendee to another, no grantee appearing therein until appellant's name was written in at the time he succeeded to Mr. Hurst's rights, it should be held that appellant's title is defective *Page 343
for the reason that a bill of sale lacking a grantee is void, and that, for this reason, respondents' motion for a nonsuit was properly granted.
Such an instrument as that with which we are here concerned, executed by the vendor, no vendee being named therein, is not necessarily void. Rehm v. Reilly, 161 Wash. 418, 297 P. 147. From the record before us, it cannot be said, as matter of law, that the rapid-fire changes of ownership of the lease and furniture were for any reason ineffective or void. We are dealing only with the question of whether or not appellant made a primafacie case.
Under the circumstances here shown, appellant's case is not fatally defective because the bill of sale was executed without containing the name of the grantee, or because the same was not recorded. Respondents are not creditors of appellant or of his immediate grantor, within the provision of the section of the statute requiring that bills of sale be recorded. Rem. Comp. Stat., § 5827. Respondents held claims against the property under a mortgage, but the record or non-record of the bill of sale nowise affected their lien.
[3] As to the demand made by appellant for possession of the hotel property, we hold that the evidence shows, prima facie, that sufficient demand was made. Appellant testified that he informed the person in charge of the hotel that he had bought the lease and the furniture, that he demanded possession of the hotel from the person in charge thereof, which demand was refused, and that he endeavored to find respondents in order to demand of them personally that he be let into possession, but that he was never able to ascertain respondents' whereabouts. It also clearly appears from respondents' answer that they had at all times *Page 344
denied appellant's title, or that he had any right of possession.
[4] It appears, prima facie, at least, from the record, that the lease and furniture, upon being sold by respondents to Mr. and Mrs. Koron, became their community property. Mrs. Koron undertook to manage the hotel, and to transfer the lease and sell the furniture. To the assignment of the lease she signed her husband's name, by herself, and she individually signed the bill of sale. Mrs. Koron testified that she had authority from her husband to do what she did in connection with the hotel property, and that he subsequently ratified her acts.
The trial court seems to have been of the opinion that appellant could show the subsequent ratification of these acts by Mr. Koron, but could not by the testimony of Mrs. Koron show that she had from her husband authority to represent him and the community in dealing with the property. It is, of course, true that an agency cannot be established by the testimony of third parties as to declarations of the agent, but the agent himself may testify concerning his authority. In the case of Beeler v.Pacific Fruit Produce Co., 133 Wash. 116, 233 P. 4, the court said:
"While it is true that agency cannot be proved by the testimony of third parties as to the declarations of the agent made to them, the situation here is not that. Here the agent is testifying directly as to his authority, and we have heretofore held that such testimony is as admissible coming from the agent on the stand, as the contrary evidence would be from the principal as a witness."
It is probable that upon a retrial of the action these questions will not arise, as more satisfactory testimony along the line indicated will probably be produced. In so far as the questions here presented are *Page 345
concerned, we hold that appellant, prima facie, established a case.
The judgment appealed from is reversed, with instructions to grant appellant's motion for a new trial.
MAIN, PARKER, HERMAN, MITCHELL, HOLCOMB, and BEELER, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3864596/ | This is an action of trespass on the case *Page 448
for negligence, and is brought to recover damages for the loss of service of the plaintiff's minor daughter, Sarah McGarr, and also to recover for the expenses incurred by the plaintiff for medicines, medical attendance, and nursing, occasioned by reason of personal injuries sustained by said Sarah while in the employ of the defendant corporation.
Said Sarah McGarr, by her father and next friend Owen McGarr, had previously brought suit against the defendant to recover damages for personal injuries growing out of the accident in question (see 22 R.I. 347), and had obtained a substantial verdict therein; and thereafterwards the mother, Annie McGarr, brought this action to recover for the consequential damages suffered by herself on account of said injuries to her daughter; and upon trial thereof, a verdict was rendered in her favor for the sum of $9,500.
The case is now before us upon the defendant's petition for a new trial upon the grounds (1) that the verdict is against the law and the evidence; (2) that the presiding justice erred in admitting certain evidence against the objection of the defendant, and also erred in refusing to admit certain evidence offered by the defendant; (3) that the presiding justice also erred in his instructions to the jury; and (4) that the damages awarded by the jury were excessive and unjust.
At the trial of the case all of the questions involved, including the question of the defendant's negligence, were considered as fully as if there had been no prior verdict and judgment in favor of the daughter, Sarah McGarr.
The proof shows that she was employed by the defendant as a spinner, and at the time of the accident, January 6, 1899, was engaged in tending a spinning-frame in No. 6 mill of the defendant company. The spinning-frame was run by an overhead belt some ten feet from, and substantially parallel with, the floor. The claim of the plaintiff is that this belt, by reason of its improper and insufficient lacing, suddenly broke; and that one end of it struck her daughter upon the side of her head, inflicting severe injuries from which major hysteria developed, together with other physical ailments of a very serious and permanent nature. *Page 449
Owen McGarr, the father of Sarah and the husband of the plaintiff, died on November 5, 1900.
Defendant's counsel starts out with the broad contention that the action will not lie, on the ground that the plaintiff, as the mother of said Sarah, is not entitled to maintain it: first, because she was not bound to support her child Sarah; and second, because the right of action for loss of service, having become vested in the father during his lifetime, could not become divested and vest in the mother after his death.
Having taken this position at the jury trial, the defendant objected to the introduction of any testimony as to damages. And as the trial court overruled this objection, subject to exception by the defendant, the first question which logically presents itself is whether the action will lie.
That at the common law the father is entitled to the benefit of his minor children's labor while they live with him and are supported by him, there can be no doubt. His right to their services, like his right to their custody, rests upon the parental duty of maintenance, and is said to furnish some compensation to him for his own services rendered to the child. Schouler's Dom. Rel. 5th ed. § 252; Brown v. Smith,19 R.I. 319.
The mother, on the other hand, not being thus bound for the maintenance of her minor children, has no implied right, at the common law, to their services and earnings.
The common-law doctrine as thus briefly stated, however, has been greatly relaxed by modern decisions in this country, if not in England; and the strong tendency of the courts in this country, as well stated by Field, C.J., in Horgan v. PacificMills, 158 Mass. 402, "is to give to a widow left with minor children, who keeps the family together and supports herself and them with the aid of their services, very much the same control over them and their earnings during their minority, and to impose on her to the extent of her ability much the same civil responsibility for their education and maintenance, as are given to and imposed on a father." The chief justice then stated the opinion of the court in that case to be as follows: "We are of opinion that when a minor *Page 450
child lives with its mother who is a widow, and the child is supported by the mother and works for her as one of the family, the mother is entitled to recover for the loss of services of the child and for labor performed and expenses reasonably incurred in the care and cure of the child so far as they are the consequences of an injury to the child negligently caused by the defendant."
This statement of the law is abundantly supported by the authorities cited in the opinion, and by numerous others which might be added. See Am. Eng. Ency. of Law, 1st ed. vol. 17, p. 387, and cases collected in notes 1 2; Drew v. R.R. Co., 26 N.Y. 49; McElmurray v. Turner, 86 Ga. 215, at p. 219; 2 Kent Com. 205-6; Nightingale v. Withington, 15 Mass. 274; Natchezand Jackson, etc., R.R. Co. v. Cook, 63 Miss. 38; CountyCommissioners v. Hamilton, 60 Md. 340; Kennedy v. N YCentral etc., R.R. Co., 35 Hun. 186; Moritz v. Garnhart, 7 Watts, 302; Furman v. Van Sise, 56 N.Y. 435; Matthews v.Ry. Co., 26 Mo. App. 75.
It being well settled, then, that a widow may maintain an action for loss of services of her minor child, the next question which arises is whether the plaintiff can maintain her action, the cause of which accrued prior to the death of her husband.
The answer to this question, in so far as it relates to the plaintiff's right to recover for loss of service, etc., prior to the death of the father, depends primarily upon the relation which existed between the mother and daughter at the time of the accident as to the right of service; that is, whether the mother or the father of the girl at that time was legally entitled to her services. And as the father was presumably entitled thereto, it devolves upon the plaintiff to prove that he had in some way relinquished his right or conferred it upon her. While the right to the child's services is naturally in the father, he can doubtless surrender this right to another by contract or otherwise, in various ways, as (a) by binding the child as an apprentice, Ames v. Union R.R. Co., 117 Mass. 541; (b) by allowing another person to so act that he stands in locoparentis, Whitaker v. Warren, 60 N.H. 26. *Page 451
This principle is fully recognized in Morse v. Welton,6 Conn. 547, where it was held that the right of a parent to the services of his minor children "is bottomed on his duty to maintain, protect, and educate them. . . . But this right and this duty may be transferred to another, and may be relinquished to a child." The law doubtless is, however, that the father cannot permanently transfer his rights and duties to another except by deed. State v. Libbey, 44 N.H. 321.
The testimony upon which the plaintiff relies to show that the services of Sarah belonged to her at the time of the accident is to the effect that the plaintiff is and long has been the real head of the family; that she owns the property, takes care of the family, and pays the bills; and that, by express direction from the father in his lifetime, she was entitled to and did receive all of the earnings of the daughter Sarah. She employed the physician who has attended the daughter since the accident, and is personally responsible to him for his services. Dr. O'Keefe testifies that he rendered his services at the request of the mother; that the night he was called he saw the case would be prolonged, and he had a talk with the mother and she told him she wanted him to attend her daughter and would see him paid, and that his services have been charged to her. The testimony further shows that the father had no property, and no income except his current earnings.
In view of this state of the proof, plaintiff's counsel contends that the wages of Sarah were the property of the mother, for the recovery of which she could have maintained an action. In other words, the contention is that the arrangement and understanding between the father and mother of Sarah as to her wages, taken in connection with the other facts aforesaid, amounted to a relinquishment by the father of his right to the daughter's services and earnings and an assignment thereof to the mother, and hence that the latter can recover for the loss thereof.
We think this is so. It is true, the evidence fails to show the making of any formal agreement between the plaintiff and her husband as to the child's services and earnings; but *Page 452
as it appears that there was an understanding between them to the effect that they belonged to the mother, and as it also appears that the mother managed the affairs of the family, owned the property, and contracted and paid the bills, we think this is sufficient to entitle her to maintain the action, not only for loss of services, etc., since the death of the father, but also prior thereto. If the case were one which simply showed the payment to the mother of the child's wages, by direction of the father, we should not deem this sufficient to enable the mother to maintain an action of this sort, as it is matter of common knowledge that for prudential and other reasons this is frequently done. But where, as in the case at bar, there is other evidence which, taken in connection with this, shows a relinquishment by the father of his right to the child's services and an assumption of his duties to the child by the mother, then she can maintain the action. In a leading New York case upon assignment of claim by husband to wife, the wife was allowed to collect, in an action for the recovery of the value of services, for work and labor done by plaintiff's husband and assignor for the defendant. In rendering its opinion the court said: "The defendant contends that the plaintiff's title to the claim in suit is invalid because acquired by assignment directly from the husband. While a different rule might prevail if the rights of the husband's creditors were concerned, transfers of personalty made by husband to wife are sustained as valid between the parties and choses in action are held to pass by delivery from one to the other without a written assignment." Seymour v.Fellows, 44 N.Y. Superior Ct. 126. This case was affirmed upon an appeal in an opinion written by Danforth, J., who said: "The appellant objects that the assignment of the cause of action having been made directly to the plaintiff by her husband is void. The rights of creditors are not in question, and we think the court below properly overruled the objection." Seymour v.Fellows, 77 N.Y. 179.
In Harper v. Luffkin, 7 B. C. 387, the father was allowed to recover for the seduction of his married daughter, although her husband had not consented to his wife becoming the servant *Page 453
of her father. In delivering the opinion of the court, Lord Tenterden, C.J., in speaking of the husband, said: "He may put an end to that relation of master and servant; but unless he interferes, it by no means follows that such a relation may not exist, especially as against third persons who are wrong-doers. It appears to me that such a relation might, and did, in fact, exist in this case; and that, in the absence of any interference by the husband, it is not competent for the defendant to set up his rights as an answer to the action."
In Parker v. Meek, 35 Tenn. 29 (3 Sneed), the mother was held entitled to recover for loss of services consequent upon the seduction of her daughter, who was twenty-four years of age, although the father of said daughter was living at the time of the seduction. In delivering the opinion of the court, McKinney, J., said: "Where the action is case, it is no more necessary in the case of a daughter of full age than in that of a minor that she should have been living in the family of the parent at the time of the seduction. Nor is it any more important in the one than in the other, who was entitled to or enjoying her services at the time of the injury. The only inquiry of importance in either case is, on whom has the consequential injury fallen? And such person, whether father, mother or other person standing inloco parentis, is entitled to legal redress in the present form of action. . . . The present action may be maintained by the mother, although by reason of the fact that the father was living at the time of the seduction and the seduced was at the time a member of his family and rendering service to him, the mother was not then nor could she be in law entitled to the services of the daughter. But the latter having remained with the mother, after the father's death, in the presumed relation of servant, and the trouble and expenses of lying-in having fallen upon her, the action is maintainable upon this ground."
In Sargent v. Dennison, 5 Cow. 106, the mother, who was a widow, bound her minor daughter by indenture as a servant until she should be eighteen years of age. During that period the daughter was seduced and the indenture cancelled. *Page 454
Thereupon the daughter returned to her mother, who then sued for seduction in an action of the case. The court held that upon the daughter's return, the relation of master and servant was restored and that it was not material who was entitled to the services at the time of the seduction, but "the real inquiry is upon whom has the consequential injury fallen, the expense attending her confinement and the loss of her services."
In neither of these cases was there any claim that the mother had actually acquired the right to the service of the child at the time of the injury, as is shown in the case at bar Indeed, the right of recovery in those cases seems to be based upon a consequential injury independent of any such considerations. The last-named case was followed in Ingersoll v. Jones, 5 Barbour, 661; Bracy v. Kibbe, 31 Barbour, 273; Gray v.Durland, 50 Barbour, 100; Furman v. Van Sise, 56 N.Y. 435.
An examination of the numerous cases bearing upon the general question involved shows that the consensus of opinion is to the effect that, in cases of wrongful injury, whoever by reason of right or relationship suffers consequential damage thereby and may be liable for necessary expenses consequent upon such injury is entitled to recover against the wrong-doer the amount of such damages and necessary expenses. The right of recovery is based both upon the right to service and upon the liability to support and maintain the person injured where the result of the injury may be to render the person injured a public charge. The right to such recovery, in so far as it is based upon the liability to support the person injured, rests upon the pauper statutes, so-called, beginning with the 43rd Elizabeth, which is as follows:
Chapter 2, section 7. "And be it further enacted that the father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame and impotent person, or other person not able to work, being of sufficient ability, shall, at their own charges, relieve and maintain every such poor person in that manner and according to that rate as by the justices of the peace of that county, where such person, *Page 455
sufficient persons dwell, or the greater number of them, at their general quarter sessions shall be assessed, upon pain that every one of them shall forfeit twenty shillings for every month which they shall fail therein."
Our own pauper statute, Gen. Laws R.I. cap. 79, § 5, is a practical re-enactment thereof and is as follows:
Sec. 5. "The kindred of any such poor person, if any he shall have, in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, or children by adoption, living within this state and of sufficient ability shall be holden to support such pauper in proportion to such ability."
A number of courts have upheld the right of one standing inloco parentis to a child to recover for loss of services of such child, resting such right upon the liability of such person for the maintenance of the child under statutes similar to 43 Elizabeth. Thus in Moritz v. Garnhart, supra, the court said of a grandparent — and in that case it is pertinent to note that both the mother and putative father of the child were alive: — "He is indeed not a parent but is chargeable by the poor laws with the duty of one. The rights of a parent are pupilary, and as they are given for the benefit of the child the person in the exercise of them must necessarily have a correlative remedy for their infraction."
In Mathewson v. Perry, 37 Conn. 435, the court said: "Our statute concerning the support of paupers by relatives imposes the obligation to provide for children alike on father and mother, making each liable if of sufficient ability. (Gen. Stat. Tit. 50, sec. 40.) The provisions of this statute are taken substantially from the 43rd Elizabeth. If the right to receive the earnings of minor children, which is conceded to the father, be made to rest on the liability of the father for their support, the mother having the same liability should be entitled to the same right." See also Hammond v. Corbett, 50 N.H. 501;Whitaker v. Warren, 60 N.H. 26; Pacific R.R. Co. v.Jones, 21 Colo. 347.
The uncontradicted evidence in the case at bar shows that the plaintiff has supported, cared for, and nursed her said *Page 456
daughter Sarah since the happening of the accident in question, and also that she has lost the benefit of her services during all of said time. And we are of the opinion, and therefore decide, that, upon the facts and law as above stated, the rulings of the trial court, whereby the plaintiff was permitted to introduce evidence of loss of services, etc., from the date of the accident, were correct and should be sustained. The exceptions to such rulings are therefore overruled.
Amongst the testimony which the plaintiff was permitted to introduce, subject to defendant's exception, bearing upon the question of the defendant's negligence in causing the accident, was the following, viz.: She was permitted to prove the manner in which the belt which broke and struck the daughter was subsequently repaired. The witness Joseph Higginbottom, after having testified that at the time when the belt broke there was only one row of holes for the lacing in each end where it parted, was asked the following question: "Q. What did Mr. Smith do with the belt when he fixed it? A. He punched holes over again on each end of the belt. Q. When he punched them over again, how many rows of holes were there on each side? A. Two rows." Counsel for defendant objected to this, as it took place after the accident, saying: "They may have put on a new belt and done a great many things suggested by this accident, but you cannot put in testimony as to what occurred afterwards. The question is whether this belt at the time was proper — that is all. Sometimes an accident may happen, and that may suggest for the first time that something else might be done." After considerable discussion by counsel upon both sides, the court ruled that the testimony was admissible. Last question read to witness, as follows: "Q. When he punched them over again, how many rows of holes were there on each side? A. Two rows of holes on each side. Q. On each side of what? A. Of the belt."
While there has been some difference of opinion in the courts of the several States upon the question whether it is competent for a plaintiff in an action of this sort to prove that changes were made after an accident, looking to the improvement *Page 457
and safety of the appliance or structure causing the injury, it is now the "well settled rule of law," as said by Rogers, J., in delivering the opinion of this court in the recent case ofMorancy v. Hennessey, 24 R.I. at p. 209, "that evidence of precautions against further accidents taken after an accident, is not competent to show antecedent negligence."
In Morse v. Ry. Co., 30 Minn. 465, the question here involved was fully considered, and, notwithstanding several previous decisions of the court to the contrary, it squarely and strongly took the ground that such evidence was not only inadmissible, but that its admission was sufficient ground for a new trial. The court said: "But on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is on principle wrong; not for the reason given by some courts, that the acts of the employes in making such repairs was not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence."
In Corcoran v. Peekskill, 108 N.Y. 151, Earl, J., in delivering the opinion of the court, used the following language, which is very pertinent to the case at bar: "After an accident has happened it is ordinarily easy to see how it could have been avoided; and then for the first time it frequently happens that the owner receives his first intimation of the defective or dangerous condition of the machine or structure *Page 458
which caused or led to the accident. Such evidence has no tendency whatever, we think, to show that the machine or structure was not previously in a reasonably safe and perfect condition, or that the defendant ought, in the exercise of reasonable care and diligence, to have made it more perfect, safe, and secure. While such evidence has no legitimate bearing upon the defendant's negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury. Hence in this court, and generally in the Supreme Court, it has been held erroneous to receive such evidence."
The recent Pennsylvania case of Baron v. Iron Company,
decided in April, 1902 (51 At. Rep. 979), discusses the question very fully and arrives at the same conclusion, stating, in summing up, that: "To the same effect are the decisions of nearly every State in which the subject has been considered." And this statement is well fortified by the numerous cases cited. See alsoCorcoran v. Peekskill, 108 N.Y. 151, reversing judgment for plaintiff; Getty v. Town of Hamlin, 127 N.Y. 636, reversing judgment for plaintiff; Payne v. Ry. Co., 9 Hun. 526;Nalley v. Hartford, 51 Conn. 524; Ely v. Ry. Co., 77 Mo. 34; Hudson v. Ry. Co., 59 Iowa 581; Hewitt v. StreetRailway, 167 Mass. 483. See also cases collected in "Negligence Rules, Decisions and Opinions," by Edward B. Thomas, pp. 589-93, Title, "Subsequent Acts and Statements."
Of course the main purpose of the evidence introduced, as to the change in the manner of lacing the belt in question after the accident, was to show a recognition by the defendant of its negligence in not having properly laced it before the accident. And that such evidence might very naturally have been so taken and construed by the jury there can be no doubt. Its admission, therefore, was reversible error; Graham v. Coupe, 9 R.I. 478;Tourgee v. Rose, 19 R.I. 432; Kolb v. Union RailroadCompany, 23 R.I. 72; Corcoran v. Peekskill, 108 N.Y. 151.
But plaintiff's counsel argues in his brief that the testimony in question "was proper as showing the condition of the *Page 459
joint at the time it broke, and explaining why it broke, and as corroborating the testimony of the witnesses Higginbottom and Sarah McGarr to the effect that this `section-hand' who had charge of these belts was accustomed to make joints and lace them with only one row of holes punched upon either side."
Doubtless it did show, or strongly tend to show, why, in the judgment of the defendant's servant who repaired it, it was defectively fastened together; but, as already suggested, this knowledge might have been and probably was gained by reason of the accident, and hence cannot properly be attributed to the defendant before the accident happened. Its showing the condition of the belt at the time it broke and explaining why it broke, as argued, is not apparent; for at the time it broke it was, according to the testimony produced by the plaintiff, in a different condition, namely, there was but one row of holes in each end of the belt where it was laced, whereas afterwards a second row of holes was punched in each end thereof and two rows of lacing inserted.
As to the testimony being proper as corroborating the testimony of the witnesses Higginbottom and Sarah McGarr, as argued, it is sufficient to reply that we know of no rule of evidence which permits a witness to be corroborated in this manner.
Plaintiff's counsel further argues that: "At all events, in view of the other testimony in the case, the admission of this testimony was harmless to the defendant, and so is no ground for a new trial." As already intimated, we cannot agree to this contention. On the contrary, we are of the opinion that it was very prejudicial to the defendant, and that its admission was such error as compels the granting of a new trial. The exception to the admission of the testimony now under consideration is therefore sustained.
A number of other exceptions were taken by the defendant to the admission and rejection of testimony during the trial; but an examination thereof fails to satisfy us that any of them are tenable, or that they are of sufficient importance to require special consideration. *Page 460
There is an exception to the refusal of a request by the defendant to charge the jury, however, which we think should be sustained. We refer to the fourth request, which was as follows: "IV. If the belt broke and passed over the girl's head without hitting her, the matter of lacing and inspection is not material." This request should have been granted. The only claim which the plaintiff alleges and declares upon, and the only one which the evidence tends to sustain, and hence, of course, the only one upon which she can recover, is that the belt broke and struck the girl, and thereby caused the injury complained of. It therefore necessarily follows that if she was not hit by the belt the action cannot be maintained. This exception is therefore sustained.
There is also an exception by the defendant to the granting of a request made by the plaintiff to charge the jury to the effect that damages might be awarded for loss of the society of the child, caused by the accident. The court instructed the jury that if the plaintiff lost the society of the child "through the wrongful act of another, she would be entitled to recover for that." This was error. In an action of this sort the proper measure of damages is the pecuniary value of the child's services from the time of the injury until it attains its majority, less its support and maintenance, together with the necessary costs and expenses incident to the care and cure of the child, such as those for medical and surgical attendance. Sedgw. on Dam., 7th ed. vol. 2, p. 520, note (b), and cases cited. But the jury are not at liberty to consider the fact that the plaintiff has been deprived of the comfort and society of the child, nor can they consider any physical or mental suffering or pain which may have been sustained by the parent by reason of the injury to the child. Louisville, c., Ry. Co. v. Rush, 127 Ind. 545;Oakland Ry. Co. v. Fielding, 48 Pa. St. 320; Cowden v.Wright, 24 Wend. 429. In short, the measure of damages in such a case is the same as that which obtains in a case brought by a master for the loss of services of his servant or apprentice. It is therefore practically a business and commercial question only, and the elements of affection and sentiment have no *Page 461
place therein. Moreover, in the case at bar, the plaintiff does not allege in her declaration that any damages were sustained by reason of the loss of the society of her daughter, but only that she sustained damages by reason of having been deprived "of theearnings and income and services of her minor daughter andservant." and in nursing and caring for her, as aforesaid.
In actions for the seduction of a daughter, and for the alienation of the affections of a wife, a different rule doubtless prevails, and damages may be recovered for the disgrace and humiliation brought upon the parent in the former class of cases in addition to those sustained by loss of service — Cooley on Torts. 2d ed. 271; 2 Greenleaf on Ev., 16th ed. § 579; Sutherland on Damages, 2d ed. vol. 3, § 1283 — and for loss of the society and affection of the wife in the latter class. The defendant's exception to that part of the charge referred to is therefore sustained.
As we have come to the conclusion that a new trial must be granted, there is no occasion for us to consider the other grounds upon which the defendant's petition is based, namely, that the verdict is against the evidence and that the damages awarded are excessive.
The verdict is set aside, and a new trial granted. Case remitted to the Common Pleas Division for further proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3404720/ | Where the sole ground of a petition for certiorari is that the judgment of the inferior court is contrary to the evidence, the judgment of the superior court overruling the certiorari will not be reversed where it appears that the evidence is conflicting.
DECIDED APRIL 30, 1949.
The defendant, LeRoy Austin, was arrested and tried in the Recorder's Court of the City of Atlanta for violating the following ordinance (Code, City of Atlanta, 1942, § 66-201): "It shall be unlawful for any person to act in a violent, turbulent, quarrelsome, boisterous, indecent or disorderly manner, or to use profane, vulgar or obscene language, or to do anything tending to disturb the good order, morals, peace or dignity of the city." The defendant was convicted, and petitioned the Superior Court of Fulton County for a writ of certiorari. His petition was sanctioned, but upon a hearing the court overruled the certiorari, and that judgment is excepted to.
The petition for certiorari assigned error on the ground that the judgment was contrary to law and to the evidence. No reason was given why the judgment was contrary to law.
Officer Pearl Martin, a City of Atlanta policeman and witness for the city, testified: "I saw him lying in that prone position like he [the accompanying officer] said and went over and had to shake him twice, tapped him on the shoulder and shook him a little, and he sprang up and grabbed me here (indicating his shoulder) struck me on the side of the face, and I ducked and when I did I had to hit him with my first, and knocked him up on the porch. Then I saw what was going to happen and got my blackjack out; in the struggle I lost it and it fell down on the floor but I retrieved it after this officer came over. Q. Then did you arrest him? A. Yes; we had to subdue him in order to get him in the automobile. One thing he did say to me when he woke up, he said, `What the hell is going on here?' and I said, `It's the police.' He said `God damn the police,' and he swung up an grabbed me. Q. It is true you were passing along with the other officer and happened to see the defendant lying on the porch? A. Yes, after this colored woman told us about his being there . . his feet were out in the alley. The steps are very short and his head was on the porch and his feet in the alley; he was down the porch steps in a prone position on his back." (Italics ours.) Another officer, who was with Martin on the occasion in question, substantiated his testimony and also testified: "Well, I looked over and asked the woman, did he live there, and she said, `No, he didn't.' Thereupon Officer *Page 200
Martin got out of the car and approached the man to see what was the matter with him. We didn't know. A lot of times we find them drunk or stabbed, and he tapped the fellow on the shoulder and said, `Hey boy, this is the police; what's the matter with you?' This officer further testified: "He [the defendant] was very disorderly all the time, cursing the God damn police, and told me he was going to kill me, refused to get in the car, resisted arrest in every way possible; kicked me on the leg, and when we got to the car it started all over again." This officer also testified: "If he [the other officer] had failed to go over and investigate it, it would have been a gross neglect of duty to see a person lying in a prone position like that, and in my capacity as an officer to pass without investigating it; and we had no intention at that time of locking him up." There was other evidence that the defendant was drunk. The defendant's statement is as follows. "I got off from work at five o'clock or five-thirty and came through town and bought two records at a record shop, and went from there to a whisky store and bought a half pint of Shenley's Red Label and went by my sister's, left there, and went home and taken a jigger of that whisky at home, and left home and my wife and two children and went back around to my sister's; so I sat down in the glider and went to sleep, and when I woke up I never did get to myself, and they were beating me across the face and on the head, and the only thing I remember is when they were sewing my head up that night in Grady [Hospital] is the only thing I remember." The defendant introduced witnesses who corroborated this statement. The recorder, however, seems to have accepted the testimony of the witnesses for the city and found the defendant guilty as charged. We think that the evidence authorized such a judgment of guilty. See, in this connection, Holcombe v. State, 54 Ga. App. 213
(187 S.E. 599). It follows, therefore, that the court did not err in overruling the certiorari, as no error of law appears.
Judgment affirmed. Gardner J., concurs. Townsend, J., concursspecially. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3861778/ | Argued March 8, 1949.
Relatrix, by a series of orders in this habeas corpus proceeding, has had the custody of her daughter, now eight years old, and her four-year-old son for more than two years, subject to the father's limited right of visitation. It is the intent of the present order to permit her to take the children to her newly-established home in *Page 8
California with the right in the respondent to have the children for one month each summer at Mount Pocono in this State. The order however puts the burden on him of arranging for their transportation to and from California at his own expense if he would take advantage of the privilege.
The order must be viewed against the background of these facts: The parties were married in 1939 and established their home in Mount Pocono. When relatrix left the hospital in January 1945, following the birth of her son, she did not return to her husband. Shortly thereafter she brought an action in divorce on the ground of indignities and a decree was entered in December 1945. She married Nels C. Nelson, her present husband, on September 25, 1946, and took her children to live with him in Philadelphia. Nelson then had a stable position with a manufacturer in Philadelphia as production manager at an adequate salary. They intended to build a home and establish a permanent residence in Philadelphia. Their plans were changed however and in February, 1948, Nelson left Philadelphia and secured employment with a warehouse company in Los Angeles, California. He has been living in a rented apartment there and expects relatrix to join him with her two children. Pending disposition of this appeal relatrix has remained in Mount Pocono with the children. Respondent also has remarried and lives with his wife and their infant son in Mount Pocono. The comparative fitness of the parties is not an important consideration here. Both homes are proper places and it is conceded that relatrix and her husband, as well as respondent and his wife, are proper persons to be entrusted with the care and maintenance of the children. The proofs in the uncontested divorce proceeding brought by relatrix followed a familiar pattern and do not disqualify the respondent. *Page 9
The principle, that when an order is challenged as an abuse of discretion, only unusual circumstances1 can justify the placing of a child beyond the jurisdiction of a court (Com. exrel. Fortunes v. Manos, 140 Pa. Super. 352, 13 A.2d 886) is grounded on the well-established *Page 10
rule that normal relationships with both parents should be maintained. Com. ex rel. Moss v. Moss, 159 Pa. Super. 133,47 A.2d 534. After relatrix remarried and her husband moved to California it was her duty to join him there. We agree that the children belong with their mother and that her obligation to her present husband is a circumstance sufficient to justify the placing of these children in her care beyond the jurisdiction of the Pennsylvania courts, but only if this may be accomplished without destroying or unduly limiting the parental relationship between respondent and his children.
The record in this case raises the suspicion that at least one of the motives which prompted relatrix and her husband to move to California was to estrange the children permanently from their father and to sever that parental tie. Nelson is attached to the children and undoubtedly would like them in his home freed from the annoyance of sharing them with the respondent. The girl was registered in the public schools as Roberta Nelson. Nelson testified that the change of residence to California was made to better his condition, but the *Page 11
only betterment disclosed by the evidence is an increase in earnings of but $200 per year which is more than absorbed by the higher rent for an apartment which he must pay there. The court's order of December 30, 1946, following relatrix's marriage with Nelson amended the original order and gave the respondent the right "to call at the home [of relatrix] in Philadelphia at a reasonable and proper time and take said children once each week upon reasonable and proper notice . . ." Nelson in a letter written by him to respondent in February 1947 referred to the children as "my children" and indicated that he did not intend literal compliance with the order. He wrote: "Under no circumstances would my wife and I permit you to appear at our home."
The present order puts an unduly onerous condition on respondent's right to see his children. The situation is not of his making and he should not be compelled to pay a prohibitive price in time and money for the exercise of a right which the law gives him, with the estrangement of the children from him, their natural father, as an alternative. It is our considered judgment that if the children are to live with relatrix in California the whole obligation must be imposed on her of returning them to the respondent at his home in Pennsylvania each summer for the period of one month. And to insure that respondent's rights will be preserved, in that respect, this is a proper case in which a bond should be required of the relatrix in an adequate amount, with sufficient surety to be approved by the lower court, for compliance with the order and for the return of the children to the jurisdiction of the court whenever directed by it. That such compliance bond may be required by the court on allowing the removal of a child to a foreign jurisdiction, is well settled: Com. ex rel. Keller v.Keller, 90 Pa. Super. 357; Com. ex rel. Fortunes v.Manos, supra. If the relatrix is unwilling to assume that responsibility, the alternative may be the placement of the children *Page 12
with respondent in his home in Mount Pocono subject to the right of visitation by the relatrix and her right to have the children at all proper times. Respondent is attached to his children and both he and his present wife are willing and able to care for them properly. In general it is desirable that the needs of young children be served by their mother, Com. ex rel.Keller v. Keller, supra, but, as has been suggested, the rule "should not be carried further than the circumstances in each case require": Com. of Pa. ex rel. Stark v. Stark, 94 Pa. Super. 86.
The record is remitted to the lower court for a new or amended order not inconsistent herewith.
1 Orders in habeas corpus proceedings, generally, contemplate that both the children and their custodian remain within the jurisdiction of the court. And a mandate to that effect is often incorporated in such orders. We cannot agree with appellee that anything less than unusual circumstances will justify the removal of a child beyond the jurisdiction of the court. The cases support this view.
In Pyles v. Pyles, 157 Pa. Super. 450, 43 A.2d 651, both the father and the mother of the children were bona fide citizens and residents of West Virginia. An order of the common pleas of Westmoreland County, where the habeas corpus proceeding was brought, properly awarded custody of their children to the mother notwithstanding her known intention of returning with them to her home in West Virginia.
In Com. ex rel. Lamberson v. Batyko, 157 Pa. Super. 389,43 A.2d 364, the parents of the child were divorced. The mother found employment in Michigan and, without abandonment, allowed her child to remain for a time with members of her family in Cambria County. On habeas corpus following her remarriage in Michigan, the mother was awarded custody, with leave to take the child to her home in that State.
In Com. ex rel. McTighe v. Lindsay et ux., 156 Pa. Super. 560,40 A.2d 881, the custody of a child was awarded to its father who lived in New York City as against the respondents who had maintained the child in Pennsylvania, over a period. Under the circumstances, including the fact that the parents of the child were divorced and the mother was not interested in the proceeding, the court in the best interests of the child permitted its placement by the father in a proper home in New York State where he could visit the child frequently.
In Com. ex rel. Fortunes v. Manos, cited to the principle supra, the parents of the five-year-old child were divorced. The mother remarried and lived with her husband in Brooklyn. The lower court committed the child to its father with the direction that it be placed in yearly residence in an institutional school. We reversed, indicating that the father should provide a normal home for the child, failing which the mother should be permitted to take the child to her home in New York State for at least part of each year.
In Com. ex rel. Black v. Black et al., 79 Pa. Super. 409, the father of the child was unable to establish a home for his family and returned his wife to her former home in Maryland. His parents who had the children in Pennsylvania declined to allow the mother to live with them. The lower court under the circumstances, properly awarded the custody of the children to their mother in Maryland.
Com ex rel. Firestone v. Firestone, 158 Pa. Super. 579,45 A.2d 923, was an appeal from an order suspending support of a three-year-old child because the mother took the child to Florida and, as a necessary result, the father was deprived of his rights of visitation, which were made definite by an order of court in a prior habeas corpus proceeding. The parties were divorced. The mother went to Florida for her health on advice of her physician, and took the child with her. She later intended remarriage there, and did not return. All that the case decided was that the mother's defiance of the court's order in the habeas corpus proceeding, did not relieve the father from supporting his child. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/45372/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-17076 ELEVENTH CIRCUIT
SEPTEMBER 18, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-00128-CR-T-17TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEISSER VIVAS-QUINONES,
Defendant-Appellant.
----------------------------------------------------------------
Appeal from the United States District Court
for the Middle District of Florida
----------------------------------------------------------------
(September 18, 2006)
Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant Neisser Vivas-Quinones appeals his 135-month
sentence imposed after he pled guilty to (1) possession with intent to distribute
five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction
of the United States, in violation of 46 App. U.S.C. § 1903(a), (g); 18 U.S.C. § 2;
and 21 U.S.C. § 960(b)(1)(B)(ii); and (2) conspiracy to possess with intent to
distribute five kilograms or more of cocaine while aboard a vessel subject to the
jurisdiction of the United States, in violation of 46 App. U.S.C. § 1903(a), (g), and
(j); and 21 U.S.C. § 960(b)(1)(B)(ii). No reversible error has been shown; we
affirm.
Vivas-Quinones argues that the district court erred in denying him a minor
role reduction pursuant to U.S.S.G. § 3B1.2(b). He asserts that he was less
culpable than the other persons found on the drug smuggling boat (which was
carrying 4,000 kilograms of cocaine) because he did not have an ownership
interest in the smuggled drugs or plan the smuggling operation. Vivas-Quinones
also contends that the small compensation he received for his participation in the
operation indicates that he played a minor role.
We review for clear error the district court’s determinations about a
defendant’s role in an offense. United States v. Ryan, 289 F.3d 1339, 1348 (11th
Cir. 2002). “The defendant has the burden of establishing his role by a
preponderance of evidence.” Id. Under U.S.S.G. § 3B1.2(b), “[a] defendant
warrants a two-level reduction for playing a minor role in an offense if he is less
2
culpable than most other participants, although his role could not be described as
minimal.” Id.
In United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), we
set out two elements that inform the sentencing court’s determination about a
defendant’s role in an offense: (1) the defendant’s role in the relevant conduct for
which he has been held accountable; and (2) the defendant’s role as compared to
that of other participants in his relevant conduct. Id. at 940. About the first
element, De Varon explains that “[o]nly if the defendant can establish that [he]
played a relatively minor role in the conduct for which [he] has already been held
accountable -- not a minor role in any larger criminal conspiracy -- should the
district court grant a downward adjustment for minor role in the offense.” Id. at
944. About the second element, De Varon counsels that this relative culpability
inquiry includes “only those participants who were involved in the relevant
conduct attributed to the defendant. The conduct of participants in any larger
criminal conspiracy is irrelevant.” Id. The first element is the more important
and, in many cases, may end the inquiry.1 See id. at 945.
1
Vivas-Quinones asserts that our decision in De Varon leads to unjust results because De Varon
fails to consider the underlying acts leading to a drug courier’s role in the offense or to measure
properly the role of a crew member in relation to other participants in the conspiracy. But De Varon,
an en banc decision, remains the guiding law in this Circuit; and we repeatedly have upheld it. See,
e.g., United States v. Alvarez-Coria, 447 F.3d 1340, 1343-44 (11th Cir. 2006). Because we are
bound by our decision in De Varon, we do not reach Vivas-Quinones’s arguments about its
3
The district court committed no clear error in determining that Vivas-
Quinones’s role in the offense was more than minor. About the first element,
Vivas-Quinones’s sentence was based only on the relevant conduct for which he
was held accountable at sentencing: the 4,000 kilograms of cocaine seized from
the boat on which he was found. And in the drug courier context, a large amount
of drugs is an important factor in determining the availability of a minor role
adjustment. Id. at 943 (“[T]he amount of drugs imported is a material
consideration in assessing a defendant’s role in [his] relevant conduct. . . . [W]e
do not foreclose the possibility that amount of drugs may be dispositive . . . . ”).
About the second element, Vivas-Quinones was one of only six crew members on
the drug smuggling boat, which was carrying over four tons of cocaine. Vivas-
Quinones has failed to show that he was “less culpable than most other
participants in [his] relevant conduct.” Id. at 944. We see no clear error in the
district court’s refusal to apply a minor role reduction in this case.
AFFIRMED.
deficiencies. See United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc)
(“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though
convinced it is wrong.”); Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e
categorically reject any exception to the prior panel precedent rule based upon a perceived defect in
the prior panel’s reasoning or analysis as it relates to the law in existence at that time.”).
4 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4554115/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN E. WHITTED, No. 19-35612
Plaintiff-Appellant, D.C. No. 2:18-cv-00642-JCC
v.
MEMORANDUM*
PETER WINFIELD JORDAN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted August 5, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Stephen Whitted appeals the adverse summary judgment ruling on his claims
of intentional interference with a parent-child relationship, civil conspiracy, abuse
of process, constitutional and common law invasion of privacy, intrusion into
seclusion, intentional infliction of emotional distress (“IIED”), and negligent
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
infliction of emotional distress (“NIED”) against his ex-wife, her husband, and their
attorneys;1 the denial of his motion for a Rule 56(d) continuance; the denial of leave
to amend his complaint; and the imposition of Rule 11 sanctions for filing a frivolous
complaint. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Whitted’s intentional interference claim against Mr. Jordan is time-barred.
See Strode v. Gleason, 510 P.2d 250, 254–55 (Wash. Ct. App. 1973) (recognizing
cause of action and applying three-year statute of limitations). His allegations here
are lifted nearly verbatim from a 2011 intentional interference claim he made against
Mr. Jordan. It is thus beyond genuine dispute that Whitted was aware of his injuries
by 2011, and that more than three years had lapsed before he brought this claim. See
id. at 254 (accrual starts “when the parent is aware that the hurt is suffered”).
Nothing in the record suggests the Jordans’ attorneys abused the legal process
in bringing a successful child support claim against Whitted. See Hough v.
Stockbridge, 216 P.3d 1077, 1085 (Wash. Ct. App. 2009) (“Abuse of process
requires . . . (1) the existence of an ulterior purpose—to accomplish an object not
within the proper scope of the process—and (2) an act in the use of legal process not
proper in the regular prosecution of the proceedings.” (quotation marks omitted)).
The divorce decree’s initial misregistration was neither manifestly improper nor
1
Respectively, Lori Jordan, Peter Jordan, attorneys Stacey Smythe and Molly
Kenny, and The Law Offices of Molly B. Kenny.
2
suggestive of an ulterior motive. Indeed, both the King County Superior Court and
the Washington Court of Appeals found the error inconsequential to Whitted’s
rights. The attorneys’ decision to remove the superior court judge originally
assigned to that case also falls short of abusive. See Washington v. Waters, 971 P.2d
538, 541 (Wash. Ct. App. 1999) (allowing removal of superior court judge once as
of right subject only to timely filing of motion and affidavit).
Whitted likewise lacks legal recourse for his constitutional and common law
claims for invasion of privacy, intrusion into seclusion, and defamation. The
Washington Supreme Court has yet to recognize a constitutional cause of action for
governmental privacy invasions, much less those perpetrated by nonstate actors.
Youker v. Douglas Cty., 327 P.3d 1243, 1245 (Wash. Ct. App. 2014). Regardless,
the pictures of Whitted in handcuffs were taken in a public hallway and depict a
matter of public record. See Mark v. Seattle Times, 635 P.2d 1081, 1094 (Wash.
1981) (no invasion of privacy when photographed in a public place). And the
undisputed accuracy of the “off to jail” message in Ms. Jordan’s email sharing the
picture certainly renders it non-defamatory. See Bender v. City of Seattle, 664 P.2d
492, 503 (Wash. 1983) (requiring proof of “falsity”).
The same fate follows for Whitted’s IIED, NIED, and civil conspiracy claims.
One could not reasonably consider the noninvasive, unabusive conduct discussed
above “so outrageous in character, and so extreme in degree, as to go beyond all
3
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” See Kloepfel v. Bokor, 66 P.3d 630, 632 (Wash. 2003)
(emphasis omitted). An absence of evidence showing Whitted experienced
“objective symptomology” of emotional distress that was “susceptible to medical
diagnosis and proved through medical evidence” similarly shutters his NIED claim.
See id. at 632–33 (quotation marks omitted). Lacking a predicate act, his civil
conspiracy claims against the Jordans’ and their attorneys necessarily fail as well.
See Corbit v. J. I. Case Co., 424 P.2d 290, 295 (Wash. 1967) (requiring proof of
“unlawful purpose” or “unlawful means”).
We also affirm the district court’s denials of a Rule 56(d) continuance.2 See
Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001) (reviewing for
abuse of discretion). To the extent Whitted specified what facts additional discovery
might have gleaned, none were “essential to oppose summary judgment” here. See
Family Home & Fin. Ctr. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th
Cir. 2008). Notably, the discovery he sought pertained primarily to his irretrievably
time-barred claim against Mr. Jordan.
Nor did the district court err in refusing Whitted leave to amend his complaint.
See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (reviewing for
2
Because we affirm the district court’s grant of summary judgment and denial
of a Rule 56(d) continuance, we also affirm the court’s denial of Whitted’s motion
to compel supplemental discovery responses as moot.
4
abuse of discretion). Whitted identifies no evidence that the Jordans’ attorneys were
unfit or incompetent, see Anderson v. Soap Lake Sch. Dist., 423 P.3d 197, 207
(Wash. 2018); that they acted outside the scope of their employment, see id. at 208;
or that they engaged in some other unlawful act for which the Jordans might be held
vicariously liable, see Smith v. Sacred Heart Med. Ctr., 184 P.3d 646, 649 (Wash
Ct. App. 2008). His proposed factual allegations likewise fail to rescue his time-
barred claim against Mr. Jordan. Thus, the district court acted within its discretion
in denying his proposed amendments as futile. See Gabrielson v. Montgomery Ward
& Co., 785 F.2d 762, 766 (9th Cir. 1986) (“[A]ny amendment would have been futile
in that it could be defeated on a motion for summary judgment.”).
Finally, the district court did not abuse its discretion in imposing Rule 11
sanctions here. See Havensight Capital LLC v. Nike, Inc., 891 F.3d 1167, 1171 (9th
Cir. 2018) (reviewing for abuse of discretion). Each of Whitted’s ten causes of
action (thirteen had he been afforded leave to amend) is either time-barred,
duplicative of a nearly decade-old claim from another case, subterfuge for
challenging long-settled rulings in state court, dependent upon allegations of
obviously lawful conduct, or some combination thereof. See id. at 1174 (“District
courts can use Rule 11 to impose sanctions on any party that files a motion for an
improper purpose or who does so without a legal or factual basis.” (quotation marks
omitted)). We accordingly defer to the court’s conclusion that Whitted’s claims and
5
legal contentions were sufficiently frivolous to call upon the unique deterrence that
Rule 11 offers. See id.
AFFIRMED.
6 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3864171/ | This is an action to recover the value of a promissory note for $450, payable to the plaintiff's order, and by him indorsed and delivered to the defendant under the following circumstances: On the 29th April, 1873, the plaintiff had an interview with the defendant at his store on Eddy Street, in the city of Providence, where the defendant was carrying on a business which partly consisted of a traffic in liquor, sold *Page 95
in violation of law. The plaintiff agreed to purchase a half interest in the business, and in the lease, stock, and fixtures. A part of the stock was liquor, illegally kept for sale. The plaintiff agreed to give the defendant $1,250, and left with him the note above mentioned. The plaintiff testifies that he left the note with the defendant as security for the performance of the contract on his part. The defendant testifies that it was given to him to bind the bargain as part payment, and that it was expressly agreed that the note should be forfeited if the balance was not paid in the course of the week. A receipt given by the defendant at the time states that the note was received in consideration of the sale, leaving a balance of $800, to be subsequently paid. We think we must regard the note as given in part payment. The plaintiff, however, concluded not to carry out the agreement, and, a day or two afterwards, notified the defendant of his conclusion, and demanded a return of the note. The defendant refused to return the note, — he had, in fact, already sold it. The ground of the plaintiff's refusal to carry out the agreement was that the business designed to be carried on was illegal. There is no evidence, however, which satisfies us that the plaintiff was under any misapprehension as to the illegal character of the business when he agreed to buy a half interest in it, or that there was any fraud such as would vitiate the contract. The case raises the question whether a person who buys into a business, the stock of which he knows consists in part of liquor illegally kept for sale, and makes part payment therefor, is entitled afterwards, upon refusing to complete the purchase, to recover back what he has already paid.
The plaintiff does not claim he would be entitled to recover if there were no illegality in the contract. He does not claim he would be entitled to recover because of the illegality independently of the statute. He claims under the General Statutes R.I. cap. 79, § 54. Section 54 provides that "all payments or compensations for liquors sold in violation of law, whether in money labor, or personal property, shall be held and considered, as between the parties to such sale, to have been received in violation of law, without consideration, and against equity and good conscience." We should have no difficulty in giving the plaintiff judgment under this provision if the note had been given solely *Page 96
for liquors illegally sold. The difficulty of the case arises from the fact that only an uncertain portion of the purchase on account of which the note was given was liquors illegally sold. The plaintiff contends that the illegality of a part taints the whole of the sale, and that therefore he is entitled to recover the whole of the payment. The statute, however, does not so provide. The payment is recoverable under the statute only as a payment for liquors illegally sold. It is true, if the defendant were suing the plaintiff for not fulfilling his contract, the partial illegality of the contract would be a good defence. But this is so not by virtue of the statute but at common law, which refuses its assistance to either party to an illegal contract, where both have participated in the illegality. The question here is purely a question as to the construction of the statute. If the contract had been carried out by both parties, could the plaintiff keep the property and reclaim the consideration paid for it, because some part of the property was liquor illegally sold? The court would not, without strict necessity, construe the statute so as to sanction such an injustice. Nothing in the language of the statute calls for such a construction. But if the entire payment would not be recoverable in case the property had passed, why should a partial payment on account be recoverable when the property has not passed, — when it has not passed simply because the plaintiff refused to complete the payment? In either case, in our opinion, the provision of the statute applies to the payment only in so far as it is a payment for liquors illegally sold.
The plaintiff cites several cases in support of his right to recover. The cases cited are mostly cases of liquors sold and delivered, but not paid for, and therefore did not involve the right of a purchaser to recover back a payment already made. The case most nearly in point is Warren v. Chapman, 105 Mass. 87. That was an action on a promissory note for $500 given by the defendant to the plaintiff. The consideration was a promise on the part of the plaintiff to pay $500 on an account held by a firm of which he was a member against the defendant. The account was for $562.85, of which $58.75 was for liquors unlawfully sold, and $504.10 for goods lawfully sold. The payment on account had been made. The defendant contested the note as invalid because the consideration was an agreement to pay a *Page 97
debt incurred in part for liquor illegally sold. The court however held the note to be valid, because the lawful items of the account to which the payment was first to be applied exceeded $500. The case is rather against the plaintiff than in his favor.
The defendant contends that the case at bar is not within the statute, inasmuch as the statute applies to liquors sold, and here there was no sale because no delivery. We do not incline to that view. The statute provides that the money received for liquors illegally sold shall be held to have been received without consideration, and against equity and good conscience. But if the liquors themselves when delivered are no consideration, and it is against equity and good conscience to take pay for them, can a mere agreement for their delivery be a consideration so that it will be according to equity and good conscience to take pay for them? We think not. If the liquors when sold are no consideration, they are, by implication at least, no consideration when simply agreed to be sold.
We think the plaintiff is entitled to recover so much of the value of the note in suit as may be considered to have been received on account of liquors in the defendant's store illegally kept for sale.
The defendant claims that a portion of the liquors, being imported liquors in the original packages, were not illegally held for sale. The statute in force in April, 1878 (Gen. Stat. R.I. cap. 79), contained no saving in favor of such liquors, and such liquors are not protected under the laws of the United States, as we understand the decision of the Supreme Court of the United States, after they have passed out of the hands of the importer. License Cases, 5 How. U.S. 504.
We think the plaintiff is entitled to recover so much of the note as may be considered to have been received for liquors; and, the note having been received generally on account, the proportion to be recovered as paid for liquors is to be determined by finding the proportional value of the liquors as compared with the rest of the purchase.
We give the plaintiff judgment for $249.75, the amount being fixed by the consent of the parties. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/93441/ | 146 U.S. 314 (1892)
HALLINGER
v.
DAVIS.
No. 1100.
Supreme Court of United States.
Submitted November 7, 1892.
Decided November 28, 1892.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.
*316 Mr. B.F. Rice for appellant.
Mr. C.H. Winfield for appellee.
*317 MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.
It is contended on behalf of the appellant that the judgment and sentence of the Court of Oyer and Terminer of Hudson County, New Jersey, whereby he is deprived of his liberty and condemned to be hanged, are void, because the Act of Criminal Procedure of the State of New Jersey, in pursuance of the provisions of which such judgment and sentence were rendered, is repugnant to the Fourteenth Amendment of the Constitution of the United States, which is in these words: "Nor shall any State deprive any person of life, liberty or property without due process of law." Such repugnancy is supposed to be found in the proposition that a verdict by a *318 jury is an essential part in prosecutions for felonies, without which the accused cannot be said to have been condemned by "due process of law;" and that any act of a state legislature providing for the trial of felonies otherwise than by a common law jury, composed of twelve men, would be unconstitutional and void.
Upon the question of the right of one charged with crime to waive a trial by jury, and elect to be tried by the court, when there is a positive legislative enactment, giving the right so to do, and conferring power on the court to try the accused in such a case, there are numerous decisions by state courts, upholding the validity of such proceeding. Dailey v. The State, 4 Ohio St. 57; Dillingham v. The State, 5 Ohio St. 280; People v. Noll, 20 California, 164; State v. Worden, 46 Connecticut, 349; State v. Albee, 61 N.H. 423, 428.
If a recorded confession of every material averment of an indictment puts the confessor upon the country, the institution of jury trial and the legal effect and nature of a plea of guilty have been very imperfectly understood, not only by the authors of the Constitution and their successors down to the present time, but also by all the generations of men who have lived under the common law. It is only necessary, in order to determine whether the legislature transcended its power in the act, to inquire whether it is prohibited by the Constitution. The right of the accused to a trial was not affected, and we can, therefore, have no doubt that the proceeding to ascertain the degree of the crime where, in an indictment for murder, the defendant enters a plea of guilty, is constitutional and valid. Statutes of like or similar import have been enacted in many of the States, and have never been held unconstitutional. On the other hand, they have been repeatedly and uniformly held to be constitutional.
In Ohio the statute is: "If the offence charged is murder and the accused be convicted by confession in open court, the court shall examine the witnesses and determine the degree of the crime, and pronounce sentence accordingly." In Dailey v. The State, 4 Ohio St. 57, the statute was held to be constitutional and a sentence thereunder valid.
*319 The statute of California in relation to this subject is in the identical language of the statute of New Jersey. In People v. Noll, 20 California, 164, the defendant on arraignment pleaded guilty. Thereupon witnesses were examined to ascertain the degree of the crime. The court found it to be murder in the first degree and sentenced him accordingly. One of the errors assigned was that, after the plea of guilty by the defendant, the court did not call a jury to hear evidence and determine the degree of guilt. The Supreme Court held: "The proceeding to determine the degree of the crime of murder after a plea of guilty is not a trial. No issue was joined upon which there could be a trial. There is no provision of the Constitution which prevents a defendant from pleading guilty to the indictment instead of having a trial by jury. If he elects to plead guilty to the indictment, the provision of the statute for determining the degree of the guilt, for the purpose of fixing the punishment, does not deprive him of any right of trial by jury."
In Connecticut, the act of 1874 provided that in all prosecutions the party accused, if he should so elect, might be tried by the court instead of by the jury, and that, in such cases, the court should have full power to try the case and render judgment. In The State v. Worden, 46 Connecticut, 349, this statute was held not to conflict with the provisions of the state constitution, that every person accused "shall have a speedy trial by an impartial jury, and that the right of trial by jury shall remain inviolate."
And, of course, the decision in the present case, of the highest court of the State of New Jersey having jurisdiction, that the statute is constitutional and valid, sufficiently and finally establishes that proposition, unless the proceedings in the case did not constitute "due process of law" within the meaning of the Fourteenth Amendment to the Constitution of the United States.
That phrase is found in both the Fifth and the Fourteenth Amendments. In the Fifth Amendment the provision is only a limitation of the power of the general government; it has no application to the legislation of the several States. Barron *320 v. Baltimore, 7 Pet. 243. But in the Fourteenth Amendment the provision is extended in terms to the States. The decisions already cited sufficiently show that the state courts hold that trials had under the provisions of statutes authorizing persons accused of felonies to waive a jury trial, and to submit the degree of their guilt to the determination of the courts, are "due process of law." While these decisions are not conclusive upon this court, yet they are entitled to our respectful consideration.
The meaning and effect of this clause have already received the frequent attention of this court. In Murray v. Hoboken Land and Improvement Co., 18 How. 272, the historical and critical meaning of these words was examined. The question involved was the validity of an act of Congress giving a summary remedy, by a distress warrant, against the property of an official defaulter. It was contended that such a proceeding was an infringement of the Fifth Amendment, but this court held that, "tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this Amendment, the proceedings authorized by the act of Congress cannot be denied to be due process of law."
In Walker v. Sauvinet, 92 U.S. 90, it was held that a trial by jury in suits at common law, pending in the state courts, is not a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment of the Constitution of the United States to abridge. The court, by Waite, C.J., said: "A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land. This process in the States is regulated by the law of the State."
In Davidson v. New Orleans, 96 U.S. 97, an assessment of certain real estate in New Orleans for draining the swamps of that city was resisted, and brought into this court by a writ *321 of error to the Supreme Court of the State of Louisiana. In the opinion of the court, delivered by Mr. Justice Miller, will be found an elaborate discussion of this provision as found in Magna Charta and in the Fifth and Fourteenth Amendments to the Constitution of the United States. The conclusion reached by the court was that "it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case." Mr. Justice Bradley, while concurring in the judgment and in the general tenor of the reasoning by which it was supported, criticised the language of the court as "narrowing the scope of inquiry as to what is due process of law more than it should do."
However, in the very next case in which the court had occasion to consider the provision in question, Mr. Justice Bradley was himself the organ of the court in declaring that "there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances. The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States *322 separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceedings. ... Where part of a State is thickly settled, and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions trial by jury in one, for example, and not in the other... . It would be an unfortunate restriction of the powers of the state government if it could not, in its discretion, provide for these various exigencies." Missouri v. Lewis, 101 U.S. 51, 52.
In Ex parte Wall, 107 U.S. 265, it was held that a proceeding, whereby an attorney at law was stricken from the roll for contempt, was within the jurisdiction of the court of which he was a member, and was not an invasion of the constitutional provision that no person shall be deprived of life, liberty or property without due process of law, but that the proceeding itself was due process of law. The dissent of Mr. Justice Field in that case did not impugn the view of the court as to what constituted due process of law, but was put upon the proposition that an attorney at law cannot be summarily disbarred for an indictable offence not connected with his professional conduct.
One of the latest and most carefully considered expressions of this court is found in the case of Hurtado v. California, 110 U.S. 516, 534. The question in the case was the validity of a provision in the constitution of the State of California, authorizing prosecutions for felonies by information, after examination and commitment by a magistrate, without indictment by a grand jury.
In pursuance of that provision and of legislation in accordance with it, Hurtado was charged in an information with the crime of murder, and, without any investigation of the cause by a grand jury, was tried, found guilty and condemned to death. From this judgment an appeal was taken to the Supreme Court of California, which affirmed the judgment. This court, in reviewing and affirming the judgment of the Supreme Court of California, said: "We are to construe this phrase due process of law in the Fourteenth Amendment *323 by the usus loquendi of the Constitution itself. The same words are contained in the Fifth Amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares that `no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, ... nor be deprived of life, liberty or property without due process of law.'
"According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment is superfluous. The natural and obvious inference is, that in the sense of the Constitution, `due process of law' was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case. The conclusion is equally irresistible, that when the same phrase was employed in the Fourteenth Amendment to restrain the action of the States, it was used in the same sense and with no greater extent; and that if in the adoption of that Amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the States, it would have embodied, as did the Fifth Amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the Fourteenth Amendment, by parity of reason, it refers to the law of the land in each State, which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws and alter them at their pleasure." The passage from the opinion of Justice Bradley in Missouri v. Lewis, above cited, is then quoted with approval.
*324 In the Case of Kemmler, reported in 136 U.S. 436, 449, a fruitless effort was made to induce this court to hold that a statute of the State of New York, providing that punishment of death should be inflicted by an electrical apparatus, was void under the Fourteenth Amendment, and it was said: "The enactment of this statute was in itself within the legitimate sphere of the legislative power of the State, and in the observance of those general rules prescribed by our systems of jurisprudence; and the legislature of the State of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the State has thereby abridged the privileges or immunities of the petitioner, or deprived him of due process of law."
Applying the principles of these decisions to the case before us, we are readily brought to the conclusion that the appellant, in voluntarily availing himself of the provisions of the statute and electing to plead guilty, was deprived of no right or privilege within the protection of the Fourteenth Amendment. The trial seems to have been conducted in strict accordance with the forms prescribed by the constitution and laws of the State, and with special regard to the rights of the accused thereunder. The court refrained from at once accepting his plea of guilty, assigned him counsel, and twice adjourned, for a period of several days, in order that he might be fully advised of the truth, force and effect of his plea of guilty. Whatever may be thought of the wisdom of departing, in capital cases, from time-honored procedure, there is certainly nothing in the present record to enable this court to perceive that the rights of the appellant, so far as the laws and Constitution of the United States are concerned, have been in anywise infringed.
Other propositions are discussed in the brief of the appellant's counsel, but they are either without legal foundation or suggest questions that are not subject to our revision.
The judgment of the Circuit Court is
Affirmed.
JUSTICE HARLAN assents to the conclusion, but does not agree in all the reasoning of the opinion. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/152733/ | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 06-4180
LORENZO ANTHONY WILSON, a/k/a
Baby Ann,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 09-4573
LORENZO ANTHONY WILSON, a/k/a
Baby Ann,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge.
(8:03-cr-00457-PJM-2)
Argued: May 13, 2010
Decided: August 11, 2010
Before MOTZ and AGEE, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
2 UNITED STATES v. WILSON
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Motz and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Robert Kelsey Kry, MOLOLAMKEN, LLP,
Washington, D.C., for Appellant. Sandra Wilkinson, OFFICE
OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee. ON BRIEF: Mary Elizabeth Davis,
DAVIS & DAVIS, Washington, D.C.; Paul F. Enzinna,
BAKER BOTTS LLP, Washington, D.C., for Appellant. Rod
J. Rosenstein, United States Attorney, Baltimore, Maryland,
Deborah Johnston, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee.
OPINION
AGEE, Circuit Judge:
Lorenzo A. Wilson appeals from his conviction for conspir-
acy to kidnap, in violation of 18 U.S.C. § 1201(c) and § 2, his
sentence of life imprisonment for that offense, and the district
court’s order denying his post-sentencing motions for a new
trial. For the reasons set forth below, we affirm.
I.
Wilson, Kenneth Jamal Lighty, and James Everett Flood,
III, were charged in a five-count bill of indictment with kid-
napping resulting in the death of Eric Hayes, and aiding and
abetting the same, in violation of 18 U.S.C. § 1201(a) and § 2
("Count I"), conspiracy to kidnap, and aiding and abetting the
same, in violation of 18 U.S.C. § 1201(c) and § 2 ("Count
II"), and three counts of using a firearm in furtherance of a
UNITED STATES v. WILSON 3
crime of violence, and aiding and abetting the same, in viola-
tion of 18 U.S.C. § 924(c) and § 2 ("Counts III, IV, and V,"
respectively).
Wilson’s case was severed from the joint trial of Lighty and
Flood because of statements Wilson made implicating them.
Following a jury trial, Wilson was convicted of Count II, con-
spiracy to kidnap, but acquitted of the other charges. Wilson
was sentenced to life imprisonment. In their separate trial,
Lighty and Flood were found guilty on all counts. Flood was
sentenced to life imprisonment on the kidnapping conviction
and a sixty-five year consecutive sentence on the remaining
counts, while Lighty received the death penalty for the kid-
napping conviction and a consecutive fifty-five year sentence
on the remaining counts.1 The parties noted separate, timely
appeals, which were subsequently placed in abeyance pending
the district court’s resolution of motions by Wilson and
Lighty for a new trial. After a joint evidentiary hearing, the
district court denied those motions, and both Wilson and
Lighty noted timely appeals from those orders as well.2
Because the cases of Wilson, Lighty, and Flood overlap in
significant respects, not only in the underlying facts and evi-
dence presented at the respective trials, but also in two of the
legal issues raised, this opinion refers to or quotes without
citation from our decision in Lighty and Flood’s appeal,
United States v. Lighty, No. 06-6 and 09-0006. A more
detailed factual summary is contained in Lighty. Briefly,
though, the evidence adduced at Wilson’s trial showed the
following.
On the evening of January 3, 2002, Eric Hayes (also known
1
The Government sought the death penalty against Lighty only.
2
We heard argument in all three cases seriatim on May 13, 2010. Lighty
and Flood’s cases were consolidated for decision, and the opinions in the
three appeals are being released on the same date.
4 UNITED STATES v. WILSON
as "Eazy"3) and his friend, Antoine Forrest, were on Eighth
Street, S.E., Washington D.C., when two men in a dark Lin-
coln Continental exited the vehicle and asked if they could
purchase drugs. Hayes walked with the men toward an alley
in order to complete the transaction. After several minutes,
Forrest approached the alley and observed that one of the men
from the Lincoln was holding Hayes at gunpoint over the
front hood of the vehicle. The second man from the vehicle
approached Forrest, brandishing a firearm. Forrest fled the
scene, and when he returned a short time later, Hayes, the
other two men, and the Lincoln were gone.
Earlier in the evening, Eugene Scott (also known as
"Yogi") went to his girlfriend’s apartment about a block from
where Hayes was later kidnapped. Scott’s vehicle was stolen
in front of his girlfriend’s apartment building. After reporting
his car stolen to the police, Scott went to the 2500 block of
Keating Street, in the Hillcrest Heights area of Temple Hills,
Maryland. He observed an older model vehicle speeding
down the street, which came to a "screech[ing]" halt, and its
doors opened. Scott started walking in the opposite direction
when he heard a voice or voices from the vehicle saying,
"Yogi is this him?," "shut up," and "[w]hat the F." Scott testi-
fied that he did not respond and left the scene.
At approximately 8:30 p.m. the same evening, Michael
Davis and Robert Smith, Jr., who both lived in the 12800
block of Hillcrest Parkway in Temple Hills, Maryland,
observed a dark Lincoln Continental parked at the end of that
street adjacent to vacant land. Davis saw the front passenger
and rear passenger exit the vehicle and forcibly pull a man,
later identified as Hayes, out of the back passenger area of the
vehicle. Hayes was protesting "no" or "don’t" while on his
3
Throughout the record in this case, Hayes’ nickname is spelled as
"Eazy," which we use in this opinion. We note, however, that the nick-
name is spelled "Easy" in Lighty, consistent with how it is spelled in that
record.
UNITED STATES v. WILSON 5
knees, and then fell over after Davis heard what sounded like
two gunshots. Davis testified that after the shots were fired,
the passengers of the vehicle reentered the vehicle on the pas-
senger side and the vehicle departed. Smith also testified that
he saw Hayes being shot that evening. Smith was located fur-
ther away from the vehicle than Davis’ location. Smith saw
two individuals exit from the passenger side of the vehicle,
and heard gunshots, after which one person reentered the
vehicle on the passenger side. Smith and Davis separately
approached the area where Hayes’ body lay, and placed 911
calls to report the incident. Telephone records introduced into
evidence showed a 911 call placed at 8:50 p.m. reporting
Hayes’ body. Police subsequently retrieved two .380 caliber
shell casings from the scene.
Between 8:43 p.m. and 9:03 p.m., Wilson — who did not
own a cell phone — used Flood’s cell phone at least seven
times to communicate with his girlfriend, Krystal Phauls. Wil-
son instructed Phauls to meet him on Iverson Street in Hill-
crest Heights, a location less than two miles from where
Hayes was shot. Phauls and her friend Melissa Coles drove to
Iverson Street in Phauls’ vehicle, and picked up Wilson,
Lighty, and Flood4 as the final telephone call between Flood
and Phauls’ cell phones ended (approximately 9:03 p.m.).
The three men sat in the back seat of Phauls’ vehicle.
Lighty, seated in the middle, held a pair of Nike shoes and
had blood on his T-shirt. The men talked about having "done
something bad or killed someone." At their direction, Phauls
drove to the 2500 block of Keating Street, the same location
where Scott had earlier seen an older model vehicle and heard
voices asking him "is this him." The men got out of the vehi-
cle, looked at the ground, and one of them said "something
about blood." Phauls then dropped Lighty off at an apartment
4
Neither Phauls nor Coles knew Flood, who was introduced to them by
his nickname "Junebug."
6 UNITED STATES v. WILSON
complex in Hillcrest Heights and returned to her home.5 Coles
departed, and Phauls and Wilson went to dinner.
On returning to Phauls’ home after dinner, Wilson told
Phauls that he had driven Flood’s vehicle when he, Lighty,
and Flood "grabbed" "the boy" "Eazy" on 8th Street. Wilson
assured Phauls he had not killed "the boy," and said Lighty
had shot him. As Phauls and Wilson spoke, a two-way black
pager went off. Wilson looked at it, said, "the guy wasn’t
lying, his name is Eazy," and Phauls saw that the screen said
"Eazy" on it.6 (J.A. 189-96.)
The next day Wilson telephoned Phauls and told her to turn
on the television. She did so, and the news was reporting
Hayes’ murder. Phauls asked Wilson if he had done it, and
Wilson again told her he had only driven the vehicle, and that
Lighty had shot Hayes.
Wilson also told his friend CW7 that he had participated in
the Hayes kidnapping. CW testified Wilson said he "was rid-
ing with [Lighty] and [Flood] and someone else [and that the
men] road up 8th Street and [Lighty] got out [of] the car,
[and] asked a guy for some drugs or something." "When the
guy went and got the drugs or whatever, when he was coming
back towards [Lighty], [Lighty] snatched him, pulled out his
gun, made the dude get in the car, and they pulled off . . . ."
(J.A. 415-20.)
On January 30, 2002, less than one month after the Hayes
kidnapping and murder, Lighty and Wilson were involved in
5
Neither Phauls nor Coles could recall whether Flood got back into the
vehicle after stopping at Keating Street. However, they both agreed that
Flood was not in the vehicle when they arrived back at Phauls’ home.
6
Phauls testified that Wilson did not own a pager at that time, and For-
rest testified that Hayes owned a pager with a description consistent with
the pager Phauls saw Wilson with that evening.
7
CW is referred to herein pseudonymously.
UNITED STATES v. WILSON 7
a drive-by shooting on Afton Street in Temple Hills, Mary-
land ("the Afton Street Shooting"), which resulted in the death
of Antoine Newbill. Over Wilson’s objection, the Govern-
ment introduced evidence of the Afton Street shooting,
including Wilson’s confession to CW to having participated
in the event, eyewitness testimony regarding the shooting, and
ballistics evidence regarding the firearms used in the shoot-
ing. That evidence is described in greater detail below and in
the Lighty opinion.
Lighty was arrested on the evening of January 31, 2002. At
the time of his arrest, he was carrying a .380 caliber handgun.
Phauls testified that Wilson told her of Lighty’s arrest and that
he said Lighty had been arrested with "the gun that he used
to kill the two boys with." (J.A. 198.) CW also testified that
after Lighty was arrested, Wilson told him the handgun
Lighty had been arrested with had "a body or two on it" from
"Afton [Street]" and "Eighth Street." (J.A. 415-16.)
Brett Mills, an FBI firearms examiner, analyzed the two
.380 caliber shell casings recovered from the Hayes murder
scene, a .380 caliber shell casing recovered from the Afton
Street Shooting scene, and the handgun seized from Lighty at
the time of his arrest. Based on his analysis, Mills was able
to conclude that the shell casing recovered from the Afton
Street Shooting was fired by Lighty’s .380 caliber handgun
(to the exclusion of all other firearms). Mills also concluded
that the two .380 caliber shell casings recovered from the
Hayes murder scene shared numerous rifling characteristics in
common with shell casings from Lighty’s .380 caliber hand-
gun. However, he could not conclude to the exclusion of all
other firearms that Lighty’s handgun had fired the shell cas-
ings recovered from the Hayes murder scene. Similarly, while
bullets retrieved from Hayes’ body were consistent with and
possessed similar rifling characteristics to bullets fired from
8 UNITED STATES v. WILSON
Lighty’s gun, Mills could not make a definitive conclusion
that Lighty’s handgun had fired those bullets.8
Dr. Laron Locke, a medical examiner, examined Lighty’s
.380 caliber handgun and concluded that one of the abrasions
found on Hayes matched the barrel portion of Lighty’s hand-
gun and that another patterned abrasion matched the clip
release of the handgun. Dr. Locke concluded these abrasions
were consistent with Hayes being struck by Lighty’s .380 cal-
iber handgun.
II.
On appeal, Wilson raises four issues relating to the conduct
of his trial and sentencing hearing, three of which warrant dis-
cussion.9 First, he asserts the district court erred in allowing
the Government to introduce evidence of an unrelated crime
— the Afton Street Shooting — during the trial. Second, he
contends the Government violated his due process rights by
making certain prejudicial statements during closing argu-
ment. Third, Wilson claims he is entitled to a new sentencing
hearing because the district court improperly relied on a writ-
ten statement he made to investigators. We address each issue
in turn.
8
On cross-examination, Mills conceded that it was possible that as many
as twenty-four handgun manufacturers made handguns that produce simi-
lar rifling characteristics as the one Lighty possessed at the time of his
arrest.
9
Wilson also contends the district court erred in considering acquitted
conduct as part of its sentencing decision. He acknowledges, however, that
his argument is foreclosed by precedent of the Supreme Court and this
Circuit, and states that he is raising the issue only for preservation pur-
poses. (Appellant’s Br. 43-44.) Because the Supreme Court rejected a sim-
ilar claim in United States v. Watts, 519 U.S. 148 (1997) (per curiam), and
Watts remains binding precedent on this Court, United States v. Grubbs,
585 F.3d 793, 798-99 (4th Cir. 2009), the district court did not err in rely-
ing on acquitted conduct when sentencing Wilson.
UNITED STATES v. WILSON 9
A.
Wilson first argues the district court erred in allowing the
Government to introduce evidence of the Afton Street Shoot-
ing, which he maintains should have been excluded under
Federal Rule of Evidence 404(b) as evidence of "other wrongs
or acts solely to prove [Wilson’s] bad character." We review
the district court’s admission of evidence for an abuse of dis-
cretion. United States v. Basham, 561 F.3d 302, 325 (4th Cir.
2009). "A district court abuses its discretion when it acts arbi-
trarily or irrationally, fails to consider recognized factors con-
straining its exercise of discretion, relies on erroneous factual
or legal premises, or commits an error of law." United States
v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007).
1.
Prior to trial, Wilson moved in limine to exclude evidence
of the Afton Street Shooting. The district court denied the
motion without prejudice, concluding that Wilson’s state-
ments that Lighty had been arrested with the firearm used in
both the Hayes and Afton Street Shootings was "enough to
get the [Afton Street Shooting evidence] in. And it’s not even
a 404(b) issue at that point. It’s strictly a matter of an impor-
tant part of the first crime being identified two, three weeks
later in another context." (J.A. 126.)
As noted earlier, both Phauls and CW testified at trial that
Wilson told them the .380 caliber handgun in Lighty’s posses-
sion when he was arrested had been used to kill two males,
one of whom was Hayes. During the course of CW’s testi-
mony, the Government elicited additional information regard-
ing the Afton Street Shooting. CW testified that Wilson told
him that he "and a couple of guys went [to Afton Street] and
started shooting" "at a crowd of guys down there" in order to
confront a man known as "Boo-Boo." According to what Wil-
son told CW, "they pulled up, [Wilson’s] window was rolled
down and . . . he started firing at Boo-Boo." Wilson claimed
10 UNITED STATES v. WILSON
to have "two guns in his hand," and CW recalled that Wilson
thought "one of them was probably a .25 or a .380, and the
other one was probably a 9-millimeter." (J.A. 411-13.)
Thomas Hart, one of the Afton Street Shooting victims,
then testified that he, Newbill, and a man known as "Boo-
Boo" were standing on the street when a Ford Taurus drove
by and shots were fired at them from the front passenger side
and the rear of the car. Boo-Boo was not injured. Hart was
shot in the foot, the arm, and the chest, and Newbill died as
a result of gunshot wounds he received.
After CW and Hart’s testimony, but before the introduction
of other evidence regarding the Afton Street Shooting, Wilson
renewed his objection to the admission of any evidence of the
Afton Street Shooting. The district court again overruled the
objection, but gave the following limiting instruction:
You have heard testimony about the shooting of
Anthony Newbill on Afton Street. You are instructed
that Mr. Wilson, the defendant in this case, is not
charged with that offense and you may not consider
that evidence to indicate that Mr. Wilson has a pro-
pensity to commit crimes or is otherwise a bad char-
acter.
The evidence of the Newbill murder may be con-
sidered by you in this case only insofar as it may
indicate Mr. Wilson’s knowledge of the weapon
used in the Hayes kidnapping and Mr. Wilson’s
presence and involvement in the Hayes kidnapping.
(J.A. 520-21.)
The Government then called Marlon Hines, who lived off
of Afton Street and was in his home the day of the shooting,
as a witness. Hines described Hart, Newbill, and Boo-Boo
entering his home after the gunshots were fired. Newbill told
UNITED STATES v. WILSON 11
Hines he could not catch his breath and that he thought he was
shot. Hines testified that Newbill died in his (Hines’) home
shortly thereafter. Hines also described an incident a day or
two before the shooting. He and Newbill were driving
together on Afton Street when Hines observed Boo-Boo, Wil-
son, Lighty, and another man engaged in a heated argument.
Mills, the FBI ballistics expert, testified concerning similar-
ities between the .380 caliber shell casings retrieved from the
scene of the Afton Street Shooting and the Hayes murder bal-
listic evidence. In addition, he testified that the .380 caliber
handgun Lighty had on his person at the time of his arrest
conclusively matched shell casings retrieved from the scene
of the Afton Street Shooting.
During the final jury instructions, the district court reiter-
ated its limiting instruction with regard to the Afton Street
Shooting evidence:
Now you’ve heard testimony about the shooting of
Anthony Newbill on Afton Street. You are instructed
that the defendant, Lorenzo Anthony Wilson, is not
charged with that offense in this case. You may not
consider that evidence to indicate that Wilson has a
propensity to commit crimes or is otherwise a bad
character.
The evidence of the Newbill murder may be con-
sidered by you in this case only insofar as it may
indicate the defendant’s knowledge of the weapon
that was used in the Eric Hayes kidnapping and inso-
far as it may indicate the defendant’s presence at and
involvement in Eric Hayes’ kidnapping.
(J.A. 719-20.)
12 UNITED STATES v. WILSON
2.
Wilson challenges the admission of all of the Afton Street
Shooting evidence at his trial.10 He contends this evidence is
"classic propensity evidence" and should have been excluded
under Rule 404(b) and Rule 403. He asserts evidence of the
Afton Street Shooting was not necessary to provide context to
Wilson’s statements connecting Lighty’s .380 caliber hand-
gun to the Afton Street Shooting and Hayes’ shooting because
those statements are only relevant to the extent they showed
Wilson’s knowledge of the firearm’s use in Hayes’ murder.
Wilson further asserts that the Afton Street Shooting evidence
was not necessary to establish identity because the identity of
Hayes’ shooter (Lighty) was not in dispute during Wilson’s
trial. Lastly, he contends the Afton Street Shooting evidence
was unfairly prejudicial because it placed Wilson at the center
of a drive-by shooting wholly unrelated to the Hayes murder.
Accordingly, he contends the evidence impermissibly "invited
the jury to infer that Wilson was more likely" to have partici-
pated in the Hayes kidnapping based on his role in this other
crime.
3.
Federal Rule of Evidence 404(b) states, in relevant part:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may, how-
10
Wilson does not argue that the district court could not consider the
Afton Street Shooting evidence at sentencing, and indeed would be fore-
closed from arguing so under the precedent of the Supreme Court and this
Circuit. See Watts, 519 U.S. at 157 (holding that uncharged conduct may
be considered at sentencing when that conduct is proven by a preponder-
ance of the evidence); Grubbs, 585 F.3d at 799 ("[A] sentencing court
may consider uncharged . . . conduct in determining a sentence, as long
as that conduct is proven by a preponderance of the evidence."). Our
review is thus limited to its admission at trial.
UNITED STATES v. WILSON 13
ever, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or acci-
dent . . . .
Importantly, Rule 404(b) is "an inclusive rule, admitting all
evidence of other crimes or acts except that which tends to
prove only criminal disposition." United States v. Young, 248
F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks
omitted). We have adopted a four-prong test for assessing the
admissibility of evidence under Rule 404(b): (1) it must be
relevant to an issue other than character; (2) it must be neces-
sary to prove an element of the crime charged; (3) it must be
reliable; and (4) it must be admissible under Rule 403, in that
the probative value of the evidence must not be substantially
outweighed by its prejudicial effect. United States v. Queen,
132 F.3d 991, 995 (4th Cir. 1997); see also United States v.
Hines, 717 F.2d 1481, 1489 (4th Cir. 1983) (test applies to
acts occurring after the charged conduct).
Rule 404(b) does not limit the admission of evidence of
acts intrinsic to the crime charged. United States v. Chin, 83
F.3d 83, 87 (4th Cir. 1996). "Other . . . acts are intrinsic when
they are inextricably intertwined or both acts are part of a sin-
gle criminal episode or the other acts were necessary pre-
liminaries to the crime charged." Id. at 88 (citation and
internal quotation marks omitted). "[E]vidence is inextricably
intertwined with the evidence regarding the charged offense
if it forms an integral and natural part of the witness’s
accounts of the circumstances surrounding the offenses for
which the defendant was indicted." United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007) (citation and internal
quotation marks omitted).
The Afton Street Shooting evidence was not admissible as
an intrinsic act because it was not inextricably intertwined to
Hayes’ kidnapping and murder.11 That evidence was not an
11
The Government does not contend, nor could it, that the Hayes kid-
napping and shooting and the Afton Street Shooting were part of a single
14 UNITED STATES v. WILSON
"integral and natural part of" any "witness’s account[ ] of the
circumstances surrounding" Hayes’ kidnapping and murder.
The only connection between the two shootings occurred in
CW’s testimony relating Wilson’s statements that the .380
caliber handgun in Lighty’s possession at his arrest had been
used to kill two men, one of whom was Hayes.12 Although
some of the information regarding the Afton Street Shooting
may have been a "natural" part of CW’s explanation of what
Wilson’s statement meant, it was by no means an integral part
of CW’s testimony. The salient evidence at the trial was
CW’s testimony about Wilson’s knowledge of what firearm
had been used to shoot Hayes. CW’s protracted explanation
of the second shooting to which Wilson referred, which
included Wilson’s confession to participating in the Afton
Street Shooting, a description of that event, and CW’s identi-
fication of the individuals involved in the earlier confronta-
tion, was not integral to his testimony regarding Wilson’s
statements connecting Lighty’s gun to the two shootings. Any
"integral" part of CW’s testimony about the Afton Street
Shooting ended once he recited Wilson’s statement that the
same gun was used in both instances.
The testimony of Hart, Hines, and the law enforcement per-
sonnel was even more tangential than CW’s testimony. Their
testimony did not connect the Afton Street Shooting and the
Hayes kidnapping and murder because no connection existed.
The events occurred at different times, at different places, and
involved completely different motives. These witnesses pro-
criminal episode or that the former was a necessary preliminary to the lat-
ter. Instead, the Government’s argument that the Afton Street Shooting
evidence constitutes an "intrinsic act" is limited to the contention that the
incidents were inextricably intertwined.
12
Although Phauls also testified that Wilson told her Lighty’s .380 had
been used to shoot "the two boys," her testimony was limited to the Hayes
shooting and she did not provide any testimony about the Afton Street
Shooting.
UNITED STATES v. WILSON 15
vided absolutely no testimony about the Hayes kidnapping
and murder.
The Afton Street Shooting evidence was not inextricably
intertwined with the Government’s case against Wilson for
the Hayes kidnapping and murder. See United States v. Ste-
phens, 571 F.3d 401, 409-10 (5th Cir. 2009) (holding that evi-
dence that co-defendants acted together to create and register
a website patterned after the official Red Cross website was
not intrinsic to the charged crimes of identity theft and wire
fraud stemming from the creation and use of a website pat-
terned after the official Salvation Army website); United
States v. Eckhardt, 466 F.3d 938, 946 n.4 (11th Cir. 2006)
(holding that evidence of uncharged threatening telephone
calls made during 2003 were not inextricably intertwined with
the charged offense of making threatening phone calls
between 1997 and 1999 because the defendant’s "crime could
be fully presented via the interstate phone calls he made" dur-
ing the charged time frame).
We now turn to whether the Afton Street Shooting evi-
dence was admissible into evidence under the four-part test
for Rule 404(b). Cf. Queen, 132 F.3d at 995. The Government
posits that the Afton Street Shooting evidence was relevant
and necessary because it explained and substantiated Wilson’s
"two bodies" statements to Phauls and CW, and thus showed
Wilson’s "knowledge, intent and identity as a participant" in
the Hayes kidnapping and murder. Assuming, without decid-
ing, that Wilson’s statements make the Afton Street Shooting
evidence relevant, we conclude that the admission of this evi-
dence was not necessary to prove an element of the crime
charged.13 The admission of the Afton Street Shooting evi-
dence was therefore error.
13
While portions of CW’s testimony about the Afton Street Shooting
were relevant to explaining Wilson’s "two bodies" comment, the relevance
of his remaining testimony, as well as the evidence provided by other wit-
nesses, is less clear and, in some cases, non-existent. However, we need
not analyze the relevance of each piece of evidence because of our conclu-
sion regarding the necessity prong for admission under Rule 404(b).
16 UNITED STATES v. WILSON
"Evidence is necessary where, considered in the light of
other evidence available to the government, it is an essential
part of the crimes on trial, or where it furnishes part of the
context of the crime." Id. at 998 (internal citations and quota-
tion marks omitted). The only information from the Afton
Street Shooting evidence probative to Wilson’s participation
in the charged offenses was his knowledge that Lighty’s .380
caliber handgun had been used to shoot Hayes. Wilson’s
knowledge that Lighty’s weapon had also been used in an
unrelated shooting does not add anything to that evidence.
Moreover, because the Government had Lighty’s .380 caliber
handgun, it could — and did — introduce ballistics evidence
supporting the conclusion that the firearm had indeed been
used in the Hayes kidnapping.14 And, as discussed below, the
Government had Wilson’s confessions to Phauls and CW
admitting his participation in the Hayes kidnapping and mur-
der, as well as a host of other circumstantial evidence show-
ing that he participated in that offense. It cannot be said, then,
that the Afton Street Shooting evidence was "necessary" to
the Government’s case against Wilson. There was simply
nothing about the Afton Street Shooting evidence that was "an
essential part of the crimes on trial," particularly in view of
the mountains of non-Rule 404(b) evidence introduced at
trial. Compare United States v. McCallum, 584 F.3d 471, 477
(2d Cir. 2009) (finding other acts evidence unnecessary where
14
This fact distinguishes the situation in the case at bar from United
States v. Higgs, 353 F.3d 281 (4th Cir. 2003). In the Higgs trial, the Gov-
ernment introduced evidence of a prior shooting involving a .38 caliber
handgun with similar rifling characteristics to the same caliber weapon
used in the kidnapping and murder of three women, but which was never
recovered. Id. at 290-91, 294. The Higgs court held that evidence of the
defendant’s participation in the prior shooting was properly introduced
under Rule 404(b) as a means to link the defendant to the same caliber
handgun that a co-defendant testified the defendant owned and retrieved
from his residence on the night of the charged murders. Id. at 312. In addi-
tion, because the gun used in the charged offense was never recovered, the
evidence regarding the prior shooting "served the necessary function of
proving [the defendant’s] identity as one of the murderers and his use of
the firearm in connection with the murders." Id.
UNITED STATES v. WILSON 17
government presented "extensive" physical and testimonial
evidence on the same issue), with United States v. DiZenzo,
500 F.2d 263, 266 (4th Cir. 1974) (finding other acts evidence
necessary where that evidence "furnished more dependable
proof" than "sparse" intrinsic evidence). Because the Afton
Street Shooting evidence fails the "necessity" requirement for
admissibility under Rule 404(b), we need not analyze the
remaining requirements, as the district court abused its discre-
tion as a matter of law in admitting the evidence.
However, whether this error requires reversal of the judg-
ment depends upon whether admission of the Afton Street
Shooting evidence was harmless error. "Where error is
founded on a violation of Rule 404(b), the test for harmless-
ness is ‘whether we can say with fair assurance, after ponder-
ing all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially
swayed by the error.’" United States v. Madden, 38 F.3d 747,
753 (4th Cir. 1994) (quoting United States v. Nyman, 639
F.2d 208, 211-12 (4th Cir. 1980)). "This inquiry is not
whether, absent the improperly admitted evidence, sufficient
evidence existed to convict." Id. Rather, the inquiry is
"whether we can say that we believe it highly probable that
the error did not affect the judgment." Id. (citation and inter-
nal quotation marks omitted).
Having reviewed the record of Wilson’s trial, we conclude
with fair assurance that the admission of the Afton Street
Shooting evidence did not affect the judgment against him.
The evidence of Wilson’s participation in the conspiracy to
kidnap Hayes was overwhelming. Wilson confessed to his
role in the kidnapping to two individuals, Phauls and CW.
Their testimony about Wilson’s confession was substantially
the same, and was consistent with other evidence in the
record. Wilson admitted to Phauls and CW that he drove
Flood’s vehicle during the course of the kidnapping, which
began when Lighty grabbed someone named "Eazy" on
Eighth Street. During Wilson’s confession to Phauls, a text
18 UNITED STATES v. WILSON
pager started to ring, and Wilson — who did not own a pager
— looked at it, said, "[T]he guy wasn’t lying, his name is
Eazy," and Phauls observed that the name "Eazy" was scroll-
ing across the screen. Forrest corroborated that Hayes had
been kidnapped off of Eighth Street, that Hayes’ nickname
was "Eazy," and that Hayes owned a two-way pager. Wilson
said that Lighty shot Hayes, and that Lighty had been arrested
with the firearm he used to shoot Hayes. Ballistics evidence
indicated the .380 caliber handgun Lighty possessed at the
time he was arrested shared numerous rifling characteristics
with the firearm used to shoot Hayes.
In addition to testifying about Wilson’s confession, Phauls
also provided a first-hand account of Wilson’s actions later on
the evening of Hayes’ death. Phauls and her friend Coles tes-
tified that Wilson called Phauls in the time frame of the kid-
napping and asked her to pick him up off of Iverson Street.
Wilson did not own a cell phone, and Phauls did not know
Flood or recognize the calling number. Telephone records
confirmed that numerous telephone calls were placed between
Phauls’ and Flood’s cell phones at 8:43, 8:44, 8:51, 8:54,
8:59, 9:02, and 9:03 p.m. on the night of the Hayes kidnap-
ping and murder.15
Upon arriving at Iverson Street as the 9:03 p.m. call was
ending, Phauls and Coles observed Lighty, Flood, and Wilson
walking away from a house on Iverson Street.16 Neither
woman knew Flood, but he was introduced by his nickname
"Junebug." The women observed that Lighty carried a pair of
Nike shoes that matched the description of the shoes Hayes
was wearing the evening of his murder; in addition, Lighty
had blood on his T-shirt. While in the car, Lighty, Flood, and
15
Davis placed the 911 call reporting Hayes’ shooting at 8:50 p.m.
16
Flood’s girlfriend at the time, Marshall, later accompanied Flood to
that same house, where Flood retrieved his Lincoln Continental and drove
it to his parent’s home in North Carolina. Forensic evidence proved that
Hayes had been in the trunk and back seat of Flood’s Lincoln.
UNITED STATES v. WILSON 19
Wilson discussed having "done something bad or killed some-
one." At Wilson’s direction, Phauls drove to the same block
of Keating Street where Scott had earlier seen an older model
car pull up and voices inquire, "[I]s this him?" When Phauls
stopped her vehicle, the three men exited the car and checked
the ground for blood.
Against this evidence, we are confident Wilson’s convic-
tion "was not substantially swayed by" the errant admission
of the Afton Street Shooting evidence. Two additional factors
lend further support to this conclusion, the jury instructions
and limited use of the evidence. The district court issued two
cautionary instructions limiting how the jury was to use the
Afton Street Shooting evidence. Those instructions expressly
informed the jury that it could not infer from the Afton Street
Shooting evidence that Wilson had "a propensity to commit
crimes or is otherwise a bad character." In addition, the
instructions informed the jury that the evidence was relevant
only to establish Wilson’s "presence and involvement in"
Hayes’ kidnapping and murder. During her closing argument,
the Assistant United States Attorney ("AUSA") referred to the
Afton Street Shooting on three separate, but brief, occasions
during a closing argument that spans almost sixty pages of
trial transcript. And on two of those occasions, she reminded
the jury of the limited context in which the jury should con-
sider the Afton Street Shooting, connecting the evidence to
Wilson’s "two bodies" statement and the forensics evidence
which tended to support the veracity of that statement. The
Government’s use of the Afton Street Shooting evidence was
thus brief, and directed the jury’s attention to a very narrow
conclusion to be drawn from it.
As we recognized and cautioned with regard to Lighty, the
admission of evidence of an uncharged murder is undoubtedly
prejudicial. See, e.g., Chin, 83 F.3d at 88. Even assuming
some information about the Afton Street Shooting was rele-
vant or provided context to CW’s testimony, the testimony of
Hart and Hines, which detailed the Afton Street Shooting and
20 UNITED STATES v. WILSON
its aftermath, was not. Moreover, none of the Afton Street
Shooting evidence was necessary to prove an element of the
charged crime. However, given the strength of the Govern-
ment’s case and the extensive evidence of Wilson’s guilt, the
AUSA’s limited use of the evidence during the trial, and the
court’s cautionary instructions to the jury, we are satisfied that
the erroneous introduction of the Afton Street Shooting did
not affect the jury’s verdict.17
B.
Wilson next contends the district court erred in allowing
the Government to make improper statements during closing
argument, and thereby denied him a fair trial. He points to
three statements made by the AUSA that he asserts misstated
the law of conspiracy: In describing what Wilson did "to help
make this crime succeed," the AUSA recounted Phauls’ testi-
mony from Wilson "in the minutes, seconds of" Hayes’ death
"to get him with his co-conspirators out of there." (J.A. 749.)
The AUSA also noted that "[c]o-conspirators are agents of
one another," and explained that was "why [the jury] hear[d]
all the testimony about the acts of the other people in this
case. You heard about Mr. Flood’s acts. What did he do after-
ward? He drove by the crime scene, according to Tynika Mar-
shall, right?" (J.A. 748.) And in rebuttal, the AUSA described
Phauls’ and Coles’ testimony that they picked up Lighty,
Flood, and Wilson and that one of the men directed them to
Keating Street. Acknowledging that Coles’ testimony as to
which man directed Phauls to drive to Keating Street differed
during the trial and at the Grand Jury, the AUSA argued "[i]t
doesn’t matter. They [Lighty, Flood, and Wilson] are co-
17
As in Lighty, the AUSAs exercised poor judgment in putting the Afton
Street Shooting evidence before the jury in the guilt phase of Wilson’s
trial. We explained above that such evidence was not necessary and its use
pointlessly introduced error into the case. In different circumstances, such
a misjudgment by the prosecutors could lead to the reversal of an other-
wise valid conviction. We caution the U.S. Attorney’s office to exercise
more prudent judgment in the future.
UNITED STATES v. WILSON 21
conspirators." (J.A. 825.) Wilson argues these statements
wrongly suggested that he could be convicted of conspiracy
to kidnap based on actions that occurred after Hayes had been
killed and thus misstated the law of conspiracy, thereby
depriving him of substantive due process and his right to a
fair trial.18
Consistent with Supreme Court precedent, we have recog-
nized that a prosecutor’s improper argument may "so infect[ ]
the trial with unfairness as to make the resulting conviction a
denial of due process." United States v. Wilson, 135 F.3d 291,
297 (4th Cir. 1998) (internal quotation marks omitted). In
determining whether remarks by the prosecutor during closing
argument violate a defendant’s due process rights, the court
must consider whether the remarks were, in fact, improper,
and, if so, whether the improper remarks so prejudiced the
defendant’s substantial rights that the defendant was denied a
fair trial. Id. An assessment of prejudice requires the court to
consider: (1) the degree to which the prosecutor’s remarks
have a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or extensive;
(3) absent the remarks, the strength of competent proof intro-
duced to establish the guilt of the accused; (4) whether the
comments were deliberately placed before the jury to divert
attention to extraneous matters; (5) whether the prosecutor’s
remarks were invited by improper conduct of defense counsel;
and (6) whether curative instructions were given to the jury.
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).
18
In Grunewald v. United States, 353 U.S. 391 (1957), the Supreme
Court noted, "a vital distinction must be made between acts of conceal-
ment done in furtherance of the main criminal objectives of the conspir-
acy, and acts of concealment done after these central objectives have been
attained, for the purpose only of covering up the crime." Id. at 405. The
latter demonstrates "nothing more than that the conspirators do not wish
to be apprehended," and are not actions done in furtherance of the conspir-
acy. Id. at 406. Wilson thus maintains that acts occurring after Hayes’
death were committed after the "main objective of the conspiracy" to kid-
nap ended and therefore could not be used as proof that Wilson partici-
pated in the conspiracy.
22 UNITED STATES v. WILSON
Read in context, the AUSA’s statements do not satisfy this
high burden and did not deny Wilson a fair trial. Wilson’s
argument takes these statements out of context, isolating them
not only from the AUSA’s surrounding remarks, but also
from the other crimes for which Wilson was being tried.
Although Wilson was only convicted of conspiracy to kidnap,
he was tried on four additional charges, all of which were sub-
stantive criminal offenses. Indeed, the first two of the forego-
ing statements Wilson challenges occurred while the AUSA
was reviewing theories of liability (the Pinkerton doctrine19
and "aiding and abetting") relevant to the substantive, i.e.,
non-conspiracy charges. The AUSA’s statements were not
misstatements as to the law of conspiracy because they did
not address how Wilson could be held liable for participating
in the conspiracy. In describing the Pinkerton theory, the
Prosecutor noted that the doctrine made sense because "[c]o-
conspirators are agents of one another" and that was why the
jury heard evidence about what the other members of the con-
spiracy did. (J.A. 747-48.) Next, the AUSA addressed liability
as "an aider and abettor," and described that under that theory
Wilson could be convicted of a substantive offense committed
by a principal if he had "willfully and knowingly [sought] by
some act to make the crime succeed." The crime the AUSA
referred to was not conspiracy, but rather the substantive
offenses delineated in Counts I, III, IV, and V. In fact, the
AUSA specifically excluded the conspiracy charge from her
description, noting her reference was "not the conspiracy
[charge], because that’s kind of a different legal concept
. . . ." (J.A. 749.) Contrary to Wilson’s argument, the AUSA
did not assert that post-conspiracy events were sufficient to
convict Wilson of the conspiracy to kidnap.20
19
The theory of Pinkerton liability permits fellow conspirators to be
held liable for substantive offenses committed by a co-conspirator in fur-
therance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646-
47 (1946).
20
We further note that these statements regarding theories of liability for
the substantive offenses were not prejudicial to Wilson because the jury
did not convict him of any substantive criminal offense; he was acquitted
of all those charges.
UNITED STATES v. WILSON 23
The third statement Wilson challenges is the AUSA’s
explanation for a purported inconsistency in the testimony
about which passenger told Phauls to drive to Keating Street.
The AUSA stated that it did not matter which man told Phauls
where to drive because the men were "co-conspirators." (J.A.
824-25.) The comment does not, as Wilson contends, improp-
erly argue that he could be guilty of conspiracy based on
events after Hayes’ death. Rather, the AUSA’s statement
responded to Wilson’s closing argument drawing attention to
the inconsistency and suggested a reason short of fabricated
testimony to explain it. The AUSA’s fleeting mention of the
men being "co-conspirators" was not the focus of her discus-
sion at that time, as she immediately turned to an explanation
of how individuals often recollect details of the same events
differently.
The AUSA’s closing arguments did not misstate the law of
conspiracy or otherwise mislead the jury, nor did it prejudice
Wilson’s trial so as to deny him due process. Accordingly,
there was no error by the district court.
C.
Wilson next contends that his sentence should be vacated
and the case remanded for resentencing because his sentence
was based, in part, on what he contends was an involuntary,
and therefore inadmissible, statement he made to civilian
investigators. Approximately eighteen months after the Hayes
kidnapping, FBI Agent G. Joseph Bradley and Prince
George’s County Police Department detectives Sean Chaney
and Michael Straughan, questioned Wilson at Schofield Bar-
racks, Honolulu, Hawaii, where Wilson was then stationed
with the United States Army. Prior to interrogating him, the
investigators read aloud to Wilson an Advice of Rights form
that informed Wilson, inter alia, of his right to remain silent.
They then had Wilson read aloud the paragraph describing
"waiver of rights" in order to ascertain that Wilson read and
understood English. Wilson signed the form indicating that he
24 UNITED STATES v. WILSON
understood his rights; he then proceeded to answer the inves-
tigators’ questions and set forth his account of the Hayes kid-
napping and murder in a hand-written statement ("written
statement" or "statement").
Prior to trial, Wilson moved to suppress the written state-
ment, arguing it was involuntarily made. After an evidentiary
hearing, the district court held that the statement was volun-
tarily made and admissible at trial. Despite the court’s ruling,
the Government elected not to introduce the written statement
into evidence against Wilson at trial based on its belief that
portions of the statement were untruthful.21
During the sentencing hearing, the parties disputed what
offense level the conspiracy conviction constituted under the
Sentencing Guidelines. If Wilson was held responsible for a
conspiracy to kidnap resulting in Hayes’ death the offense
level would be higher than if he was simply held responsible
for a conspiracy to kidnap. The parties disagreed as to the
extent of Wilson’s role in the conspiracy to kidnap and what
evidence the district court could consider in resolving this dis-
pute. Both the Government and Wilson referred to the written
statement in order to bolster their respective positions, with
the Government contending it showed Wilson’s involvement
throughout the conspiracy, and Wilson contending it showed
he only played a limited role late in the course of the conspir-
acy.
The district court referred to the written statement as part
of its explanation for concluding Wilson could be held
responsible for Hayes’ death and that the offense level should
be set at the higher level. The court observed that it did not
"accept everything the defendant says [in the written state-
ment] as gospel on this. The things that are clearly incriminat-
21
Part of the written statement was consistent with the evidence ulti-
mately presented against Wilson at trial, and portions of the statement are
inconsistent. (J.A. 48-49, 110-11.)
UNITED STATES v. WILSON 25
ing to him, I’m inclined to accept. The other items in which
I find him incriminated are really supplied by other people."
(J.A. 881-82.) Expounding on this view, the Court stated:
I think [Wilson] clearly was trying to position him-
self to be out of the murder when he gave the state-
ment, but he was — as the Government says, he
stepped directly into the conspiracy when he did that
. . . but the reality is that all these people are telling
different stories. . . . I mean they’re all trying to pass
the buck here in terms of where they are.
(J.A. 882.)
Wilson asserts the district court erred in relying on the writ-
ten statement during sentencing because it was involuntarily
made as a matter of law. He contends he could not waive his
right to remain silent, as he was under a direct military order
to answer the investigators’ questions. Relying on two United
States Court of Military Appeals cases — United States v.
Dohle, 1 M.J. 223 (1975), and United States v. Duga, 10 M.J.
206 (1981) — he asserts that when a superior commands a
subordinate to answer a question, the subordinate "may
rightly be regarded as [having been] deprived of his freedom
to answer or to remain silent." He further contends the civilian
investigators’ separate warning of Wilson’s constitutional
rights had no effect on that military order requiring him to
make a statement because a civilian cannot countermand a
military order.
We review the district court’s factual findings underlying
a motion to suppress for clear error and its legal determina-
tions de novo. United States v. Perkins, 363 F.3d 317, 320
(4th Cir. 2004).
Wilson’s argument lacks merit. The two cases he relies on,
Dohle and Duga, are inapposite, addressing a military
accused’s rights under Article 31 of the Code of Military Jus-
26 UNITED STATES v. WILSON
tice rather than his constitutional right to remain silent. More-
over, they involve the rights of a military accused when he is
questioned by other members of the military rather than when
he is questioned by non-military investigators, as occurred
here. Dohle, 1 M.J. at 226 ("[W]e hold that where a person
subject to the Code interrogates — questions — or requests
a statement from an accused or suspect over whom the ques-
tioner has some position of authority of which the accused or
suspect is aware, the accused or suspect must be advised in
accordance with Article 31."); Duga, 10 M.J. at 208-12. Nei-
ther case supports the broad proposition Wilson advances
regarding the legal capacity of a member of the military to
waive his constitutional right to silence in questioning by
civilian authority. Wilson does not cite to — nor did we find
— any other authority that would support the broad proposi-
tion he advances.
The record supports the district court’s conclusion that Wil-
son’s statement was voluntarily made after the civilian author-
ities informed Wilson of his constitutional right to remain
silent. At the hearing on the motion to suppress, Wilson testi-
fied that he "believe[d] [he was] being ordered to speak to the
men that were in that room that day." However, the district
court concluded that Wilson’s testimony was not credible, and
its determination was not clearly erroneous. No other evi-
dence in the record supports Wilson’s self-serving testimony
or the conclusion that Wilson’s commanding officer ordered
him not just to "show up" at the interview, but also specifi-
cally to provide a statement to the investigators.
Moreover, the circumstances surrounding the interview
show that the civilian authorities informed Wilson of his right
to remain silent, and he voluntarily waived that right. Agent
Bradley and Officer Chaney testified that Wilson was not
handcuffed prior to or during the interview; no military per-
sonnel were present during the interview. Both described Wil-
son as being "eager" to tell his side of the story, and that
Agent Bradley had to stop Wilson from speaking in order to
UNITED STATES v. WILSON 27
Mirandize him prior to speaking with him. Agent Bradley
read Wilson "the FBI’s version of the Advice of Rights"
"word for word." (J.A. 52.) In addition, at Agent Bradley’s
request, Wilson read the Waiver of Rights paragraph aloud.
Wilson then signed the Advice of Rights form, spoke with the
investigators, and provided the written statement. On this
record, the district court did not err in determining Wilson
knowingly and voluntarily waived his right to remain silent.
Accordingly, the written statement was admissible, and the
district court did not err in using it in determining Wilson’s
sentence.
III.
Wilson contends the district court erred in denying his
motion for a new trial based on newly-discovered evidence
and a separate alleged Brady22 violation. Federal Rule of
Criminal Procedure 33 authorizes motions for a new trial
based on such evidence, permitting district courts to "vacate
any judgment and grant a new trial if the interest of justice so
requires." Such motions should be awarded, "sparingly," as "a
jury verdict is not to be overturned except in the rare circum-
stance when the evidence ‘weighs heavily’ against it." United
States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006) (quoting
United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003)).
We review the district court’s denial of a motion for a new
trial under an abuse of discretion standard. Perry, 335 F.3d at
320. In so doing, we "may not substitute [our] judgment for
that of the district court; rather, we must determine whether
the court’s exercise of discretion, considering the law and the
facts, was arbitrary or capricious." United States v. Fulcher,
250 F.3d 244, 249 (4th Cir. 2000) (quoting United States v.
Mason, 52 F.3d 1286, 1289 (4th Cir. 1995)).
22
Brady v. Maryland, 373 U.S. 83 (1963).
28 UNITED STATES v. WILSON
A.
Wilson moved for a new trial based on an alleged Brady
violation. He asserts the Government unlawfully withheld a
copy of police notes summarizing Lighty’s statements to the
police following his January 31, 2002 arrest.23 At the time of
his arrest, Lighty was in possession of a .380 firearm; the
police notes indicate that Lighty stated he "shot the [.380] one
time in the air" during the Newbill shooting. Wilson posits
that he was entitled to the police notes as Brady material
because Lighty’s statement contradicted CW’s testimony that
Wilson told him he had shot the .380 during the Newbill
Shooting. Wilson asserts that in addition to using the state-
ment to impeach CW’s testimony, he could have used
Lighty’s statement to argue against the admission of ballistics
evidence connecting the .380 to the Newbill and Hayes shoot-
ings. He contends that Lighty’s statement takes the .380 out
of Wilson’s hands and without being able to make that con-
nection, the Government would not have been able to intro-
duce evidence that the .380 was used during the Newbill
shooting and was consistent with the weapon used during the
Hayes kidnapping.
The district court denied Wilson’s motion for a new trial,
explaining that Lighty’s statement did "not exculpate Wilson
in any way" and was "not favorable to him in the Brady sense.
It doesn’t tend to show that he’s not guilty" of conspiracy to
kidnap. (Supp. J.A. 157-58.) In addition, the court noted there
were "no corroborating circumstances of the trustworthiness
of [Lighty’s statement" and the "result would not have been
different" "had this statement been made available to Wilson
at his trial." (Supp. J.A. 158-59.)
The district court did not abuse its discretion in denying
23
Although Wilson received a description of this document prior to trial,
he did not learn of Lighty’s actual statements until after his initial appeal
had been filed.
UNITED STATES v. WILSON 29
Wilson’s motion.24 In Brady, the Supreme Court held "that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 373 U.S. at 87. In
order to prove that the Government’s failure to tender certain
evidence constitutes a Brady violation, the burden rested on
Wilson to show that the undisclosed evidence was (1) favor-
able to him either because it is exculpatory, or because it is
impeaching; (2) material to the defense, i.e., "prejudice must
have ensued"; and (3) that the prosecution had materials and
failed to disclose them. United States v. Stokes, 261 F.3d 496,
502 (4th Cir. 2001).
Lighty’s statement is not Brady material because it is nei-
ther exculpatory nor material.25 Evidence is "exculpatory" and
"favorable" if it "may make the difference between conviction
and acquittal" had it been "disclosed and used effectively."
United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence
is "material" if it is "likely to have changed the verdict."
Moseley v. Branker, 550 F.3d 312, 318 (4th Cir. 2008).
24
In his reply brief, Wilson argues that because Brady violations are
reviewed de novo, the Court should review the district court’s denial of
his motion for a new trial based on an alleged Brady violation de novo
instead of for abuse of discretion. This argument is superfluous. Consistent
with United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001), motions
for a new trial based on an alleged Brady violation are reviewed for abuse
of discretion. It is an abuse of discretion for the district court to commit
a legal error — such as improperly determining whether there was a Brady
violation — and that underlying legal determination is reviewed de novo.
See United States v. Llamas, 599 F.3d 381, 391 (4th Cir. 2010) (quoting
United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007) ("A district
court abuses its discretion when it commits an error of law.")).
25
The Government contends that Wilson also failed to satisfy the third
requirement, because it did disclose the statement to Wilson. The district
court did not address this component or make any factual findings regard-
ing the sufficiency of what the Government did disclose to Wilson regard-
ing Lighty’s statements to the police. In light of our conclusion that the
other two requirements are not meant, we do not need to address this issue
and decline to do so.
30 UNITED STATES v. WILSON
Lighty’s statement fails on both fronts because it has no
bearing on Wilson’s participation in the Hayes kidnapping
and therefore provides no information relevant to the offense
Wilson was convicted of committing — conspiracy to kidnap
Hayes. The statement does not contradict any of the evidence
introduced to prove Wilson’s participation in the Hayes con-
spiracy. Moreover, Lighty’s statement does not diminish the
relevance of CW’s testimony that Wilson stated the .380 cali-
ber handgun had "two bodies" on it, thereby establishing Wil-
son’s knowledge that this firearm had been used in both the
Newbill and Hayes shootings. At most, Lighty’s statement
places the .380 in Lighty’s hands at some point during the
Newbill shooting.26 That evidence is not inconsistent with
Wilson’s participation in the conspiracy to kidnap Hayes. And
it is also consistent with CW’s testimony about Wilson’s con-
fession regarding the Newbill shooting because CW’s testi-
mony on who shot which firearm was equivocal, "From what
I recall, I think one of [the two guns CW fired during the
Newbill shooting] was probably a .25 or a .380, and the other
one was probably a 9-millimeter." (J.A. 412-13 (emphasis
added)). Even had Wilson possessed Lighty’s statement at
trial, it simply cannot be said that it would have effectively
made a difference in the verdict against Wilson.
Accordingly, Lighty’s statement was neither exculpatory
nor material, and it does not constitute Brady material. For
this reason, the district court did not abuse its discretion in
denying Wilson’s motion for a new trial based on the Govern-
ment’s failure to turn over the statement to Wilson prior to
trial.
26
Even if Lighty fired a shot in the air at the Afton Street Shooting, that
does not preclude Wilson from having fired shots as well.
UNITED STATES v. WILSON 31
B.
1.
Wilson also moved for a new trial on the basis of newly-
discovered evidence in the form of testimony from JM27 as
well as CW’s recantation of parts of his trial testimony
regarding Lighty and Wilson. The district court held a joint
evidentiary hearing to determine the nature of this evidence
and consider both Lighty and Wilson’s motions for a new
trial. The evidence presented at that hearing is discussed in
greater detail in the Court’s opinion in Lighty at Section
II.M.1.
Briefly synopsizing that testimony, in July 2006, JM was
arrested on felony gun charges. JM was a frequent informant
for law enforcement officials, and at the time of his arrest he
made — for the first time — statements concerning the Hayes
kidnapping and murder alleging that Tony Mathis (rather than
Wilson, Lighty, and Flood) was the responsible party.28 JM
testified that on the evening of Hayes’ murder he and a friend
were walking down Iverson Street when they saw a few peo-
ple standing by a vehicle with its trunk open. He identified
Mathis and other individuals he recognized, but he did not see
Lighty or Wilson, both of whom he knew. As he approached
Mathis, JM saw there was a body in the trunk and decided to
leave the area. A few days later, JM saw Mathis and con-
fronted him about "acting stupid" and "wilding out" when he
saw him the evening of January 3. Mathis responded by stat-
ing, "You know, niggers think it’s sweet. They think they can
just holler at [a baby’s mother] and get away with it." JM took
this to mean Mathis was upset about Hayes "trying to holler
at [Mathis’ baby’s mother], so he set him up and killed him."
27
JM is referred to pseudonymously.
28
Mathis was not indicted in Hayes’ kidnapping and murder. Wilson,
Lighty, and Flood argued as part of their respective defenses that Mathis
and the other two co-indictees were culpable.
32 UNITED STATES v. WILSON
JM acknowledged, however, that Mathis never told him he
kidnapped or murdered Hayes. When questioned about Lighty
and Wilson’s participation, JM testified, "Your Honor, I’m
not saying that Mr. Lighty or . . . Mr. Wilson wasn’t a party
to what ultimately happened. I just know what I saw that
night. They weren’t there. And I know that Tony Mathis had
motive, all the motive in the world, to commit the crime."
In February 2009, CW was interviewed by Lighty’s coun-
sel and signed a declaration recanting parts of his trial testi-
mony against Lighty. He claimed that he had lied about
Lighty confessing to the shooting because he was facing seri-
ous charges. In the written statement CW signed at the time
of this interview, he stated, "The only other person who was
rumored to be involved in this case who spoke to me about
it directly was Tony Mathis." Because CW asserted his Fifth
Amendment rights, he did not testify at the evidentiary hear-
ing. George Steel, a private investigator for Lighty’s counsel,
was present during CW’s interview and testified regarding the
circumstances surrounding the statements. Steel testified that
CW said he was recanting because "it was the right thing to
do" and not because of any threats he had received as a result
of his trial testimony. When asked whether CW made any
comments recanting the testimony he gave against Wilson,
Steel stated, "I don’t remember making that conclusion or
asking any questions about that."
After considering this evidence and hearing the parties’
arguments, the district court denied Wilson’s motion. In
reaching its decision, the district court reiterated the proper
standard for a motion for a new trial and concluded that the
new evidence did not satisfy Wilson’s burden to meet that
standard. The court noted many reasons to doubt JM’s testi-
mony, including the length of time that had passed before he
came forward, the similarity between his testimony and previ-
ous testimony he had provided as an informant in unrelated
cases, and discrepancies between JM’s testimony and prior
statements he had made regarding what he claimed to have
UNITED STATES v. WILSON 33
seen. Moreover, in light of the overwhelming evidence
against Wilson presented at trial, the district court concluded
that JM’s testimony would not have made a difference in the
outcome of the trial.
With regard to CW’s recantation, the district court deter-
mined that CW’s extensive prior statements had greater credi-
bility and corroborating evidence than his current recantation.
The court also noted threats CW had received as a result of
his testimony at the trials and the significant fact that Mathis
had died in the intervening period between CW’s trial testi-
mony and recantation.
2.
In determining whether a new trial should be granted on the
basis of newly discovered evidence, the Court uses a five-part
test:
(a) the evidence must be, in fact, newly discovered,
i.e., discovered since the trial; (b) facts must be
alleged from which the court may infer diligence on
the part of the movant; (c) the evidence relied on
must not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it
must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably
produce an acquittal.
Fulcher, 250 F.3d at 249 (quoting United States v. Curtis, 988
F.2d 1355, 1359 (4th Cir. 1989)). "Without ruling out the pos-
sibility that a rare example might exist, [the Court has] never
allowed a new trial unless all five elements were established."
Id. (citing United States v. Singh, 54 F.3d 1182, 1190 (4th Cir.
1995)).
With regard to the fifth prong, the "district court is required
to make a credibility determination as part of its probability-
34 UNITED STATES v. WILSON
of-acquittal" determination. United States v. Kelly, 539 F.3d
172, 189 (3d Cir. 2008). In making this determination, a dis-
trict court should focus on whether a jury probably would
reach a different result upon hearing the new evidence. Id. at
189. Of course, if the district court does not find a witness
credible, it follows that the district court would not find the
witness sufficiently persuasive to enable the district court to
conclude that witness testimony would probably produce an
acquittal at a new trial. Id. at 189 n.14. "To make a determina-
tion under this standard, the district court cannot view the
proffered testimony in a vacuum; it must weigh the testimony
against all of the other evidence in the record, including the
evidence already weighed and considered by the jury in the
defendant’s first trial." Id. at 189.
If a motion for a new trial is based on a witness’ recantation
of trial testimony, the motion should be granted only if the
court is "reasonably well satisfied" (1) that the testimony
given by a material witness was false; (2) the jury might have
reached a different conclusion without the false evidence; and
(3) the party seeking the new trial was surprised by the false
testimony and was unable to meet it or did not know of its fal-
sity until after trial. United States v. Lofton, 233 F.3d 313, 318
(4th Cir. 2000) (citing United States v. Wallace, 528 F.2d 863,
866 (4th Cir. 1976)). The failure to meet any one of the three
prongs is fatal. United States v. Carmichael, 726 F.2d 158,
159 (4th Cir. 1984). Post-trial recantations are "looked upon
with the utmost suspicion." United States v. Johnson, 487
F.2d 1278, 1279 (4th Cir. 1973) (citation and internal quota-
tion marks omitted).
3.
Wilson asserts the district court erred in determining that
JM’s testimony and CW’s recantation lacked credibility and
therefore did not satisfy the fifth prong ("would probably pro-
duce an acquittal") of the standard for granting a new trial. He
contends the district court improperly limited the scope of its
UNITED STATES v. WILSON 35
review and weighed the proffered testimony in a vacuum
instead of considering it in light of the weak evidence pre-
sented against him at trial. Wilson also claims that the court
erred in refusing to evaluate whether the new evidence would
have affected the jury’s determination regarding Phauls’ cred-
ibility. And he asserts the court improperly disregarded the
incentive both Phauls and CW had to lie when it compared
their testimony at trial to the new evidence.
We disagree. In reviewing JM’s testimony and CW’s pur-
ported recantation, the district court properly found that nei-
ther was credible. As we observed when examining the
court’s decision on this issue in Lighty, there were numerous
inconsistencies between JM’s testimony at the evidentiary
hearing and earlier statements he made to investigators
regarding the events in question. Specifically, in a 2006 inter-
view with the police, JM stated "Tony Mathis was the
shooter" in Hayes’ murder, and that "after the murder,
[Mathis] kept the victim in the trunk and drove around and
showed his body to drug dealers in the Iverson Street Area."
JM claimed Mathis shot Hayes "because the victim had
approached Tony’s baby’s mother and tried to get her tele-
phone number." (Supp. J.A. 47.) Later, in December 2007,
FBI Agent Bradley interviewed JM regarding what he pur-
ported to know about Hayes’ kidnapping and murder. During
that interview, JM was "adamant" that the incident he
described occurred in the summer of 2003 or 2004 because it
was warm outside. JM claimed Mathis told him he killed
Hayes because Hayes had been "messing with his girl." And
JM described seeing Hayes’ body in a tan-colored Buick.
JM’s statements at both of those prior interviews contradict
his testimony at the evidentiary hearing, and undermine the
credibility of the version of events he testified to at the hear-
ing.
The timing of JM’s initial statements to the police, and his
motives for making them, also undermine his credibility.
Although he had been a frequent confidential informant for
36 UNITED STATES v. WILSON
law enforcement for several years, JM did not mention any-
thing about Hayes’ kidnapping and murder until many years
after it occurred. JM’s initial statement to police implicating
Mathis in Hayes’ murder occurred after Mathis had been mur-
dered. He was facing serious charges at the time he provided
his initial statement. Moreover, no physical or other evidence
corroborates JM’s version of events. All of these factors sup-
port the district court’s basis for finding JM was not credible.
Contrary to Wilson’s contention, the district court did not
improperly limit the scope of its review or refuse to consider
JM’s testimony in the context of all the evidence adduced at
trial. The record shows that after finding JM not credible, the
court addressed whether JM’s testimony would probably pro-
duce an acquittal and concluded it would not. In so doing, the
court considered all of the trial evidence, including Phauls’
testimony that she picked up Wilson, Lighty, and Flood on the
evening of Hayes’ murder and drove them to Keating Street,
as well as Wilson’s confessions to having participated in the
kidnapping. Whereas JM’s testimony lacked corroborating
evidence, the evidence adduced at trial was based on the testi-
mony of multiple individuals, was supported by forensics evi-
dence showing that Hayes was in Flood’s vehicle and by
telephone records indicating that Wilson had used Flood’s cell
phone to call Phauls multiple times around the time of Hayes’
death, and included Wilson’s confession to two individuals.
For these reasons, the district court did not abuse its discretion
when it determined JM’s testimony was not credible and
would not have probably resulted in an acquittal.
With regard to CW’s recantation, we also conclude the dis-
trict court had an adequate basis on which to find the recanta-
tion lacked credibility and would not have probably resulted
in an acquittal.29 The district court had ample opportunity to
29
We note that the district court gave Wilson quite a bit of latitude to
develop the arguments regarding the relative strength of the trial evidence,
including questioning the veracity of Phauls’ testimony and her motive to
lie. That the district court did not agree with Wilson’s conclusion does not
mean that it failed in its duty to assess whether the new or recanted evi-
dence would have probably resulted in an acquittal.
UNITED STATES v. WILSON 37
assess CW’s credibility at trial, and was in the best position
to determine whether that prior testimony was credible. As
discussed above, CW’s testimony was corroborated by the
trial testimony of numerous other witnesses, as well as physi-
cal evidence. Of particular importance to Wilson’s reliance on
the recantation, CW did not explicitly recant his testimony
against Wilson, save for the general statement that Mathis was
the "only other person who was rumored to be involved in this
case who spoke to me about it." Moreover, several reasons
supported CW’s incentive to lie by recanting his trial testi-
mony, including community pressure to do so, threats CW
had received as a result of his trial testimony, and the fact that
CW did not recant and point the blame at Mathis until after
Mathis was ever so conveniently dead. As we concluded with
regard to Lighty, in light of the evidence corroborating CW’s
trial testimony and undercutting his post-trial recantation, we
conclude the record supports the district court’s conclusion
that the material portions of CW’s trial testimony were not
false. Moreover, since the newly discovered evidence Wilson
relies upon lacked credibility, it was not of such a nature that
"would probably produce an acquittal" in a new trial. Cf.
Fulcher, 250 F.3d at 249. Accordingly, the court did not
abuse its discretion in denying Wilson’s motion for a new
trial.
IV.
For the aforementioned reasons, we affirm Wilson’s con-
viction for conspiracy to kidnap and his sentence of life
imprisonment. We also affirm the district court’s order deny-
ing Wilson’s post-trial motions for a new trial.
AFFIRMED | 01-03-2023 | 08-11-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3980369/ | It is insisted that the charge quoted in the original opinion did not suffice for the customary charge on accomplice testimony. The alleged purchaser, (the only state's witness) denied any such agreement relative to whisky as was testified to by appellant. There was no corroboration of the state's witness as to the sale. The learned trial judge realized that if appellant's version of the matter was true the alleged purchaser was in fact criminally connected with the seller and therefore an accomplice witness, and there being no corroboration the state's case must fall. This is precisely what he told the jury. When the record is devoid of corroborating evidence why tell the jury there must be corroboration before *Page 111
conviction could be had. Why not tell them if they find the only state's witness to be an accomplice they must acquit?
The motion for rehearing is overruled.
Overruled. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/71770/ | Case: 09-20556 Document: 00511048785 Page: 1 Date Filed: 03/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2010
No. 09-20556 Charles R. Fulbruge III
Summary Calendar Clerk
In the Matter of: MARY ANN KNEZEK,
Debtor
CINDY NEELY,
Appellant,
v.
TRAVIS JOHNSON, Appellee, Defendant in Trial Court,
Appellee.
CONSOLIDATED with
No. 09-20574
In the Matter of: MARY ANN KNEZEK,
Debtor
CINDY NEELY,
Appellant,
v.
W. STEVE SMITH,
Appellee.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-09-1075
Case: 09-20556 Document: 00511048785 Page: 2 Date Filed: 03/11/2010
No. 09-20556
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
In this bankruptcy adversary proceeding, Cindy Neely contests two
separate judgments entered by the Bankruptcy Court of the Southern District
of Texas. The district court affirmed, and these judgments have been
consolidated for the purposes of the present review. Neely appeals the
judgments, arguing that the Bankruptcy Court erred in authorizing the sale of
certain property pursuant to 11 U.S.C. § 363(h) and allowing an earmarking of
the funds for the Trustee of Neely’s husband’s bankruptcy estate. We affirm.
I
Cindy Neely and Mary Ann Knezek together entered an agreement in 2003
to purchase property located in Rosenberg, Texas. Shortly thereafter, Mrs.
Neely’s husband, George Neely, a Houston attorney, filed for bankruptcy.
Subsequently, Knezek and Cindy Neely became embroiled in a lawsuit regarding
ownership of the Rosenberg property. The Texas state trial court entered a
judgment awarding a 50% undivided interest in the property each to Cindy
Neely and Knezek. In 2006, Knezek filed an adversary proceeding within the
main case of her own bankruptcy. Knezek sought authority to sell the
Rosenberg property and named Cindy Neely as a defendant. Cindy Neely, in her
capacity as co-owner, opposed this request. Neely argued that Knezek failed to
satisfy the elements of 11 U.S.C. § 363(h), a federal bankruptcy statute
authorizing the sale of a co-owner’s interest in property provided certain
conditions are met.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
2
Case: 09-20556 Document: 00511048785 Page: 3 Date Filed: 03/11/2010
No. 09-20556
During the pendency of Knezek’s sales adversary proceeding, the
Commission for Lawyer Discipline (CFLD) initiated a proceeding within the
main case of George Neely’s bankruptcy, seeking to bar George Neely’s discharge
of debts. Cindy Neely was not named as a party and did not intervene. But she
was deposed, and subsequently subpoenaed, for the trial held on the CFLD’s
adversary proceeding against her husband. This proceeding resulted in a series
of findings that George Neely had concealed property with the intent to hinder,
delay, or defraud his creditors in violation of 11 U.S.C. § 727(a)(2)(A) and (B).
As a result of these findings, the bankruptcy court ordered that any interest of
George and Cindy Neely in the Rosenberg property belonged with George Neely’s
bankruptcy estate and was not exempt on the date of his bankruptcy.
Following this order, the Trustee for George Neely’s bankruptcy estate
sought an amendment of the judgment in Knezek’s adversary proceeding against
Cindy Neely. Specifically, the Trustee requested an amendment identifying him
as a party for whom the sale proceeds of the Rosenberg property would be
earmarked. The bankruptcy court granted the Trustee’s request. Cindy Neely
appealed this judgment to the district court, which dismissed on the grounds
that Mrs. Neely was bound by the findings in the CFLD adversary proceeding
against her husband. This district court held that Cindy Neely’s interests had
been adequately represented at the CFLD proceeding, and her failure to appeal
the bankruptcy court’s judgment in her husband’s ancillary proceeding rendered
the district court powerless to grant any of her requested relief. The district
court dismissed her petition with prejudice, and this appeal followed.
3
Case: 09-20556 Document: 00511048785 Page: 4 Date Filed: 03/11/2010
No. 09-20556
II
“We apply the same standard of review as the district court, reviewing the
bankruptcy court’s findings of fact for clear error and conclusions of law de
novo.” 1
III
On appeal, Cindy Neely argues that the Bankruptcy Court erred by
allowing the sale of the Rosenberg property and ordering her share of the
proceeds to be awarded to the Trustee overseeing her husband’s bankruptcy
estate. Specifically, Neely argues that an earlier proceeding in state court,
which held that she owned a 50% undivided interest in the Rosenberg property,
precluded the bankruptcy court from earmarking any portion of the proceeds
from its sale for the Trustee. Neely further asserts that the order allowing the
sale was itself in error, because Knezek failed to satisfy the requirements of 11
U.S.C. § 363(h). We address each argument in turn.
A
Mrs. Neely argues that because a state court had awarded her a 50%
undivided interest in the Rosenberg property that the bankruptcy court was
barred under Rooker-Feldman doctrine from awarding any portion of the sales
proceeds to the Trustee overseeing her husband’s bankruptcy estate.2 Neely
misinterprets both the scope and legal effect of the state court’s ruling.
The Rooker-Feldman doctrine bars a losing party in state court “from
seeking what in substance would be appellate review of the state judgment in
a United States district court, based on the losing party’s claim that the state
1
In re Duncan, 562 F.3d 688, 694 (5th Cir. 2009) (quoting Hickman v. Texas (In re
Hickman), 260 F.3d 400, 401 (5th Cir.2001)).
2
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
4
Case: 09-20556 Document: 00511048785 Page: 5 Date Filed: 03/11/2010
No. 09-20556
judgment itself violates the loser’s federal rights.” 3 The doctrine is jurisdictional
in nature: federal district courts lack the requisite appellate authority to
“reverse or modify” a state-court judgment, because their jurisdiction under 28
U.S.C. § 1257 is “strictly original.” 4 But the doctrine has no application to a
federal suit brought by a nonparty to the state suit,5 nor does it preclude a party
from litigating an independent claim, even one that denies a legal conclusion
previously reached by a state court.6
“When there is parallel state and federal litigation, Rooker-Feldman is not
triggered simply by the entry of judgment in state court.” 7 The Supreme Court
has repeatedly held that “the pendency of an action in the state court is no bar
to proceedings concerning the same matter in the Federal court having
jurisdiction.” 8 Comity or abstention doctrines may, in various circumstances,
permit or require the federal court to stay or dismiss the federal action in favor
of the state-court litigation, but the Rooker-Feldman doctrine does not support
the notion that properly invoked concurrent jurisdiction vanishes if a state court
reaches judgment on the same or related question while the case remains sub
3
Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994).
4
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 287 (2005) (quoting
Rooker, 263 U.S. at 415-16) (explaining that if the state-court decision was wrong “that did not
make the judgment void, but merely left it open to reversal or modification in an appropriate
and timely appellate proceeding”).
5
Johnson, 512 U.S. at 1005-06.
6
Exxon Mobile, 544 U.S. at 293 (holding that if a federal plaintiff presents some
independent claim, albeit one that denies a legal conclusion that a state court has reached in
a case to which he was a party, then there is jurisdiction and state law determines whether
the defendant prevails under principles of preclusion).
7
Id. at 292.
8
Id. (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)).
5
Case: 09-20556 Document: 00511048785 Page: 6 Date Filed: 03/11/2010
No. 09-20556
judice in a federal court.9 The federal litigation of which Mrs. Neely
complains—her husband’s bankruptcy proceedings—predate the state court
action upon which she relies. Thus, Neely’s argument that the state court
judgment somehow deprived the bankruptcy court of jurisdiction under the
Rooker-Feldman doctrine is without merit.
Disposition of a federal action, once the state court adjudication is
complete, is governed by preclusion law.10 The Full Faith and Credit Act, 28
U.S.C. § 1738, requires a federal court to “give the same preclusive effect to a
state-court judgment as another court of that State would give.” 11 Preclusion,
however, is not a jurisdictional matter. “In parallel litigation, a federal court
may be bound to recognize the claim- and issue-preclusive effects of a state-court
judgment, but federal jurisdiction over an action does not terminate
automatically on the entry of judgment in the state court.” 12 In this regard, res
judicata is an affirmative defense which if not pled is considered waived.13
Although both the bankruptcy court and the district court invited Mrs.
Neely to submit briefing as to whether res judicata would apply to the state
court judgment, Neely failed to provide the state court pleadings or make any
substantial argument regarding the state court judgement’s preclusive effect.
The bankruptcy court made clear that the separate or community property
interest in the Rosenberg property was at issue. In response, Neely’s only
argument was that, because she was not a party to the CFLD adversary
9
Id.
10
Id. at 293.
11
Id. (quoting Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1986)).
12
Id.
13
See Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir.1985) (“[R]es judicata,
and hence collateral estoppel, is an affirmative defense which if not pled is considered
waived.”); FED . RULE CIV . PROC . 8(c) (listing res judicata as an affirmative defense).
6
Case: 09-20556 Document: 00511048785 Page: 7 Date Filed: 03/11/2010
No. 09-20556
proceeding against her husband, she could not be bound by it. The district court
properly rejected this argument, and any res judicata argument to the contrary
has been waived.
The law is clear that a nonparty may be bound when her interests are
“adequately represented by someone with the same interests who is a party.”14
The Fifth Circuit has emphasized that this principle is reinforced when the
nonparty shares counsel with a party to the underlying judgment.15 Cindy Neely
was represented during deposition in the CFLD proceeding by the same attorney
representing her husband; this same attorney entered an appearance on Cindy
Neely’s behalf on both days of the trial. Mrs. Neely had every reason to know
that, because the proceeding involved allegations as to the community property
of her marriage, her rights could be affected by the outcome.
“This case surely is not the paradigm situation in which Rooker-Feldman
precludes a federal district court from proceeding.” 16 The Trustee overseeing Mr.
Neely’s bankruptcy estate plainly has not repaired to federal court seeking to
undo a state court judgment against him. Rather, it appears the Trustee
properly moved for an amended judgment on the basis of the bankruptcy court’s
finding that the Rosenberg property was not purchased with Cindy Neely’s
separate funds and was property of the bankruptcy estate. Rooker-Feldman did
not prevent the bankruptcy court from exercising jurisdiction when Knezek filed
the state court action, and it did not emerge to vanquish jurisdiction after Cindy
Neely prevailed in the Texas courts.
14
Richards v. Jefferson County, Ala., 517 U.S. 793, 798 (1996).
15
1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1290 (5th Cir. 1991).
16
Exxon Mobile, 544 U.S. at 293 (internal citations and quotations omitted).
7
Case: 09-20556 Document: 00511048785 Page: 8 Date Filed: 03/11/2010
No. 09-20556
B
Neely next argues that the bankruptcy court committed error by allowing
the sale of the Rosenberg property because Knezek failed to satisfy the
requirements of 11 U.S.C. § 363(h). This section of the federal bankruptcy
statute authorizes sale of a co-owner’s property interest providing (1) partition
in kind of such property among the estate and such co-owners is impracticable;
(2) sale of the estate’s undivided interest in such property would realize
significantly less for the estate than sale of such property free of the interests of
such co-owners; (3) the benefit to the estate of a sale of such property free of the
interests of co-owners outweighs the detriment, if any, to such co-owners; and
(4) such property is not used in the production, transmission, or distribution, for
sale, of electric energy or of natural or synthetic gas for heat, light, or power.17
At trial, Knezek’s expert witness testified that a partition in kind of the
Rosenberg property would be impracticable, would realize significantly less
value for her estate than a sale free of the interests of a co-owner, and was not
used in the production of power. Neely failed either to rebut the expert’s
testimony or provide any substantial evidence to the contrary.
On appeal, Neely argues that Knezek failed to satisfy her burden of proof
under 11 U.S.C. § 363(h). To the extent that Neely raises such an issue, she has
failed to provide any citations to the record or case law. Accordingly, this issue
is waived as inadequately briefed.18 Further, Neely’s claim that Knezek has no
ownership interest in the property was never raised at trial. “It is well
established that we do not consider arguments or claims not presented to the
17
11 U.S.C. §363(h).
18
See, e.g., Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004)
(“Issues not raised or inadequately briefed on appeal are waived.”).
8
Case: 09-20556 Document: 00511048785 Page: 9 Date Filed: 03/11/2010
No. 09-20556
bankruptcy court.”19 We nevertheless note in passing that our review of the
record, Neely’s arguments, and the bankruptcy court’s well-reasoned opinion,
convinces us that if we were to address the burden of proof issue we would likely
agree with the bankruptcy court’s determination.
* * *
For the foregoing reasons, we AFFIRM the district court’s judgment.
19
Gilchrist v. Westcott (In Matter of Gilchrist), 891 F.2d 559, 561 (5th Cir.1990) (citing
Moody v. Empire Life Ins. Co. (In re Moody), 849 F.2d 902, 905 (5th Cir. 1988)).
9 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3997073/ | HOLCOMB and FULLERTON, JJ., dissent. *Page 515
One of the principal industries in the states of Washington and Oregon for years past has been that of the manufacture of doors and other joinery products from Pacific coast fir, a substantial part of such products having been exported to foreign markets, there meeting in competition like products chiefly manufactured in Sweden. Competition has been keen, and at times, at least, prices have not been satisfactory; and so, to better these conditions, nine corporations engaged in the business we have just described joined in organizing the respondent American Export Door Corporation and brought it into existence in December, 1926; they subscribing for all of its capital stock and each of them entering into a separate contract with it in substantially identical form, which contracts provided, among other things:
(a) That each of the nine subscribing corporations should have the right to have one of their executive officers on the board of trustees of the American Export Door Corporation;
(b) That the American Export Door Corporation should be the exclusive sales agent for all of the doors and other joinery products that each of the subscribing corporations might produce for export, and that it should receive a commission of five per cent on all sales made by it as such agent; *Page 516
(c) That prices should be fixed only by the board of trustees of the Export Door Corporation;
(d) That all orders should be allocated by the board of trustees to the various subscribing corporations in certain definite proportions which were agreed upon and made a part of the contract;
(e) The contract was not to apply to orders received and accepted before the organization of the Export Door Corporation, and —
(f) That if any of the subscribing corporations violated any of the provisions of the contract, its stock holding in the Export Door Corporation might be canceled and forfeited as liquidated damages, and that such offending member should pay further liquidated damages in the sum of fifteen per cent of the value of any doors or other joinery products sold for export by it to any one other than the Export Door Corporation.
Appellant John A. Gauger Co., a corporation, doing business as Knox Toombs, entered into this contract under date of January 18, 1927, and the other eight corporations interested entered into like contracts at about the same time. These nine corporations produced from eighty-five per cent to ninety-five per cent of all the fir doors exported from the states of Washington and Oregon. Subsequently, another producer signed such a contract, and certain other producers, while they refused to sign like contracts, did agree that they would not sell any doors for export except through the Export Door Corporation. Every producer of fir doors in the state of Washington, with one exception, signed such a contract, and the one refusing to sign entered into an agreement to sell its products only through the American Export Door Corporation.
E.W. Daniels, appellant's manager, became a member of the board of trustees of the American Export *Page 517
Door Corporation, and a schedule of prices was agreed upon by the board of trustees. A general manager was employed, and in February, 1927, he was sent to the United Kingdom to negotiate with distributors and to secure orders for the products in which the Export Door Corporation was to deal. This manager, after arriving in the United Kingdom and ascertaining conditions, reported that the Swedish competition was such that it would be necessary to reduce prices on certain grades of doors. Whether he actually quoted reduced prices, or quoted them subject to ratification, is disputed. In any event, he sent a cablegram from London to the Export Door Corporation in which he unequivocally stated that he had changed certain differentials, which it is conceded meant a reduction in price.
When the cable was received, the Export Door Corporation advised appellant Knox Toombs, quoting the cablegram referred to, and indicating that the subject would be one for consideration by the board of trustees. Immediately upon receipt of this letter quoting the cablegram, Knox Toombs notified the American Export Door Corporation that because of reduction in price without authority from the board of trustees, and because of the disturbance of its market for its products under contracts entered into before it subscribed to the contract with the Export Door Corporation specifically exempted by that contract, it withdrew from the contract, terminated the agency and refused further to be bound in any way. This notice was given on March 25, 1927.
Some months later, on July 12, 1927, the American Export Door Corporation began this action against Knox Toombs, seeking an injunction restraining it from selling its product for export except through the American Export Door Corporation, and to recover *Page 518
fifteen per cent liquidated damages on all sales of doors for export made by the appellant, since the date of the contract, to others. The trial court found that appellant was not entitled to terminate the agency, but took the position that the provision for fifteen per cent on all export sales as liquidated damages was unreasonable and could not be enforced. Damages were fixed at five per cent of the export sales as found by the court to have been made by the appellant, and an injunction was granted. From this final judgment, John A. Gauger Co., a corporation, doing business as Knox Toombs, has appealed.
[1] The appellants have raised many important points and supported their conclusions with substantial authority, but after considering the whole case, the view we have arrived at makes it necessary to state only one of the several points involved and that is the question of whether or no the contract is void as against public policy.
The contract between the parties is one of a series having, it is contended, as their purpose the creation of a monopoly, the limitation of production, and probably the fixing of prices in violation of Article XII, § 22, of the constitution of the state of Washington, which reads:
"Monopolies and trusts shall never be allowed in this state, and no incorporated company, copartnership, or association of persons in this state shall directly or indirectly combine or make any contract with any other incorporated company, foreign or domestic, through their stockholders, or the trustees, or assignees of such stockholders, or with any copartnership or association of persons, or in any manner whatever, for the purpose of fixing the price or limiting the production or regulating the transportation of any product or commodity. The legislature shall pass laws for the enforcement of this section by adequate penalties, and in case of incorporated companies, if necessary *Page 519
for that purpose, may declare a forfeiture of their franchise."
Without going into history, it is sufficient to say that our constitutional provision above quoted is simply a recognition of the common law on the subject reduced to definite terms and made the fundamental law of the state. It was adopted before the enactment of the Sherman Anti-Trust law by the Congress of the nation, and it stands as the complete and wholly unobscured guide pointing out the plain pathway of public policy in this state.
[2] Therefore our inquiry must be as to whether the contract in question offends against its terms.
That we have here a direct combination, must be admitted. Is its purpose the fixing of prices, the limiting of the production or the regulation of the transportation of any product or commodity?
By its terms, the contract provides for the fixing of prices only on merchandise exported, and, while an argument might be advanced to the effect that controlling production and fixing export prices might and probably would result in the fixing of prices to domestic purchasers, we pass that point. Does the contract limit production?
Respondent seems to contend that the effect of the contract was not to limit production and that there was no such intention. Evidence was given upon the question of intent, and no doubt it was the hope of the promoters that the Export Door Corporation would find a market for all that the members' mills might produce, but that is not the sense in which the limiting provisions of the constitution are used. No doubt, always a monopoly hopes and intends to market all of the product which it controls, but if in doing so, in such a case as this, it destroys or infringes upon the rights of any and all others to deal freely in the same *Page 520
product, then its action is an unreasonable restraint of trade under the common law and is in restraint of production under our constitution, because free and unrestrained production in the final analysis depends upon free and unrestricted trade in the article produced. In other words, the constitution contemplates a free market to both producer and purchaser.
Having invited its members to abolish their selling organizations and having set up its own to take their place, respondent would have the power to reduce the production of its members for export to nothing, if it saw fit, and that power is one of the evils which our constitution is intended to prevent.
The findings of fact and the judgment which respondent sought and obtained below also furnish a complete answer to this question. After it repudiated the contract, appellant sold doors f.o.b. its factory to brokers and dealers engaged in the export trade which it had reason to know would be exported by the purchasers. The trial court found:
"That since the execution of the aforesaid contract between plaintiff and defendant the defendant has refused and failed to assign and turn over to the plaintiff any orders or offers to purchase doors or other joinery products to be exported from the United States, although it has received such orders and offers and accepted the same and has heretofore filled and is now filling such orders; that since January 18th, 1927, up to December 1st, 1927, defendant in violation of the contract had received, accepted and filled orders for 97,565 doors to be exported from the United States of America, the F A S steamer value of which doors so sold for export being $159,997.71; there being attached to this finding lists showing said orders under the defendant's order numbers, the date when received and shipped, the number of doors and the value of the same on each order so filled, together with the exhibit numbers as shown in the evidence. *Page 521
"That the defendant threatened and threatens to continue to make sales of doors for export from the United States of America, not through the plaintiff, and contrary to the aforesaid contract, and has announced that it will not carry out its obligations under the above contract in any way, and has entered into contracts with other agents represented in the export of such doors from the United States of America, and it will be necessary for the plaintiff in order to enforce its rights against the defendant, if not granted equitable relief in this action, to institute many actions;"
and entered judgment accordingly. Plainly, then, as to all which might be sold to independent brokers and dealers for export, the production was limited, if not totally prohibited. This is limiting production in the constitutional sense. But, says the respondent, such brokers and export dealers might have purchased from the American Export Door Corporation itself. True, that is not forbidden by the contract and is a possibility, but is it reasonable to suppose that a concern, situated as respondent is, seeking to monopolize the export trade, will sell to its rivals on a basis which will permit them to compete with it? The evidence shows that it would not. The question answers itself.
The evidence discloses that there are but few independent dealers and brokers engaged in this export trade, perhaps but ten in all. Of these, respondent asserts three only are Washington corporations, but that is immaterial. All do or did business in this state by here purchasing a large part of the products in which they deal, and even a foreign corporation doing business in this state is entitled to claim the protection of its laws; or, passing that, one citizen of this state may claim the protection of our constitution just as surely and just as certainly, though he alone is affected by *Page 522
the act complained of, as though a majority of our citizens were likewise affected.
The evidence clearly establishes that the effect of the contract in question was to greatly limit, embarrass and in some instances practically end the business of the independent dealers and brokers in doors for export, a result which we hold comes within the constitutional prohibition.
In Manson v. Hunt, 82 Wash. 291, 144 P. 45, we recognized and gave effect to this constitutional provision under facts no more certainly pointing to monopoly; and in Washington CranberryGrowers Ass'n v. Moore, 117 Wash. 430, 201 P. 773, 204 P. 811, 25 A.L.R. 1077, we said:
"The appellant contends that a monopoly is created, trade restrained, the output of cranberries limited and prices are controlled. It may be admitted that, if this is the effect of the contract and the business transacted under it, it would be void and unenforcible."
But in that case the cooperative association in question controlled only about two per cent of the product, while here it is undenied that respondent's control, if its contracts be enforced, is practically total.
Inter City Auto Stage Co. v. Bothell Bus Co., 139 Wash. 674,247 P. 1040, might well have been put upon the sole ground that the monopoly there in question was a regulated monopoly under the statute creating it, the service and the rates both being subject to regulation by a department of the state government, hence, so far as it affected the public or the individual members thereof, it was no monopoly at all in the constitutional sense.
Under constitutional provisions and statutes against monopolies similar to ours, other states have, with considerable unanimity, denounced such contracts. *Page 523
Cases sufficiently parallel upon the facts to be authority here are:
Pocahontas Coke Co. v. Powhatan Coal Coke Co., 60 W. Va. 508, 56 S.E. 264, 116 Am. St. 901, 10 A.L.R. (N.S.) 268; SantaClara Valley M. L. Co. v. Hayes, 76 Cal. 387, 18 P. 391;Slaughter v. Thacker Coal Coke Co., 55 W. Va. 642,47 S.E. 247, 104 Am. St. 1013, 65 L.R.A. 342; Arnot v. Pittston ElmiraCoal Co., 68 N.Y. 558, 23 Am. Rep. 190; Texas Standard Oil Co.v. Adoue, 83 Tex. 650, 19 S.W. 274, 29 Am. St. 690, 15 L.R.A. 598; People v. North River Sugar Refining Co., 54 Hun 354, 7 N Y Supp. 406; State v. Smiley, 65 Kan. 240, 69 P. 199, 67 L.R.A. 903; Vulcan Powder Co. v. Hercules Powder Co., 96 Cal. 510,31 P. 581; Chicago, Wilmington Vermillion Coal Co. v.People, 114 Ill. App. 75; Morris Run Coal Co. v. Barclay CoalCo., 68 Pa. St. 173, 8 Am. Rep. 159; and Finck v. SchneiderGranite Co., 187 Mo. 244, 86 S.W. 213, 106 Am. St. 452.
That which amounts to a complete monopoly of the source of supply, presents a far different condition than that presented by the ordinary cooperative association covering a product as produced only in a limited field, which product must be marketed in competition with like products from all other districts and sources.
In the ordinary case the market is free, and independent dealers can buy from any one of many sources. Here, there is but one source, which is monopolized, and, as the evidence clearly shows, the independent dealers for export were virtually put out of business. Clearly such a condition is an unreasonable restraint of trade under the common law, and, as hereinbefore indicated, it offends against our constitutional provision against monopolies. *Page 524
[3] But, says the respondent, we are organized to act under the Webb-Pomerene Act (40 Stat. L. 516, ch. 50), and by that act those engaged in export are released from the monopolistic prohibitions of other laws.
Of course, the Congress cannot by its legislation nullify the constitution of any state relating to a domestic matter and equally, of course, the manufacture of doors is not interstate commerce. Anderson v. Shipowners' Ass'n of Pacific Coast,272 U.S. 359; United Leather Workers International Union v. Herkert Meisel Trunk Co., 265 U.S. 457.
[4] But let us see what the Webb-Pomerene Act provides. Section 2 of that act, which covers the present question, reads:
"That nothing contained in the Act entitled `An Act to protect trade and commerce against unlawful restraints and monopolies,' approved July second, eighteen hundred and ninety, shall be construed as declaring to be illegal an association entered into for the sole purpose of engaging in export trade and actually engaged solely in such export trade, or an agreement made or act done in the course of export trade by such association, provided such association, agreement, or act is not in restraint of trade within the United States, and is not in restraint of the export trade of any domestic competitor of such association: And provided further, that such association does not, either in the United States or elsewhere, enter into any agreement, understanding, or conspiracy, or do any act which artificially or intentionally enhances or depresses prices within the United States of commodities of the class exported by such association, or which substantially lessens competition within the United States or otherwise restrains trade therein."
The words,
". . . provided such association, agreement, or act is not in restraint of trade within the United *Page 525
States, and is not in restraint of the export trade of any domestic competitor of such association,"
seem exactly to except the present situation. If it were necessary to pass upon the Webb-Pomerene Act, which we think it is not, we should be obliged to hold that the present contract, by limiting the purchase and procuring of doors by independent dealers for export, comes within the exception and is still unlawful.
As already said, the findings and judgment appealed from conclusively establish that the contract is in unreasonable restraint of trade within the United States and in restraint of the export trade of competitors, else there could have been no recovery of damages and no enjoining of sales to competing exporters.
Respondent contends that, if this be the meaning of the exception in the Webb-Pomerene Act, then that act is a useless thing, because prices cannot be regulated abroad without a control of the source of supply, but, in the light of our constitution, that is not a question which should influence us, nor is it one which we should now decide.
Being convinced that the contract violates our constitutional provision against monopolies and is void under the common law, because it seeks an unreasonable restraint of trade, the judgment is reversed with directions to dismiss the action.
MITCHELL, C.J., PARKER, MAIN, BEALS, FRENCH, and MILLARD, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3862888/ | Argued December 9, 1943.
Plaintiff has appealed from the judgment entered by the court below in favor of defendant notwithstanding the verdict of the jury in an action to revive the lien of a judgment by writ of scire facias. On November 1, *Page 83
1930, appellee executed and delivered his judgment note in the amount of $650 to appellant. It contained a power of attorney authorizing a confession of judgment. It was filed in the office of the prothonotary and judgment entered thereon. Thereafter it was revived by the filing of an amicable scire facias. On June 4, 1937, appellee filed his voluntary petition in bankruptcy in the United States District Court for the Eastern District of Pennsylvania. At the time of filing the petition in bankruptcy appellee was indebted to appellant on the judgment note which is the subject of this action, and on other notes aggregating $600. On June 14, 1937, appellee filed his schedules in bankruptcy, and on October 29, 1937, he received his discharge in bankruptcy. In the schedules in bankruptcy so filed appellee did not list appellant among his creditors. On March 10, 1941, appellant caused a writ of scire facias sur judgment to issue against appellee to revive the lien of the judgment, which had been revived on April 25, 1935. Appellee filed an answer wherein he averred that the said debt was discharged by virtue of an adjudication and discharge in bankruptcy. The case came on for trial and the jury returned a verdict for plaintiff. Defendant's motion for judgment n.o.v. was granted by the court below because (1) appellant had actual knowledge of the bankruptcy proceedings; (2) there was no acknowledgment of the debt sufficient to make a new binding obligation; (3) had there been a new promise appellant would be obliged to sue on the new promise and not on the old obligation.
Appellant now contends (1) that her debt was not affected by the discharge in bankruptcy because it was not scheduled in time for proof and allowance; (2) that a promise made by appellee was sufficient to constitute a new obligation upon which suit could be brought; (3) that appellee was estopped from pleading discharge in bankruptcy. *Page 84
The judgment of the court below will be affirmed.
Section 17 of the Federal Bankruptcy Act, 11 USCA § 35, provides in part as follows: "(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as . . . . . . (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy."
In Barnes v. Silveus et al., 114 Pa. Super. 214, at page 218, 173 A. 837, at page 838, we said (quoting from Birkett v.Columbia Bank, 195 U.S. 345, 25 S. Ct. 38, 40, 49 L. Ed. 231): "`Actual knowledge of the proceedings, contemplated by the section [17 of the Federal Bankruptcy Act], is a knowledge in time to avail a creditor of the benefits of the law, — in time to give him an equal opportunity with other creditors.'"
Appellant admitted that appellee had stated to her that he was a bankrupt, and that he had advised her of the filing of his voluntary petition in bankruptcy. She also admitted that she went to the office of the clerk of the referee in bankruptcy and discussed the matter. There was other undisputed testimony that she had actual knowledge of the bankruptcy in time to prove her claim, and that she did not file her claim due to the fact that she considered it a waste of money to pay for the filing expense. Appellee's failure to incorporate appellant's claim in his schedules in bankruptcy did not deprive her of participation in the administration of the bankrupt estate, as she had actual knowledge of the proceedings in time to avail herself of the benefits of the law and to participate equally with other creditors.
It therefore follows that appellee's discharge in bankruptcy was an absolute extinguishment of the obligation, and not a mere bar of the remedy upon it. *Page 85 Kravitz v. Povlotsky, 333 Pa. 75, 77, 3 A.2d 922; Murphy v.Crawford, 114 Pa. 496, 498, 7 A. 142; Hobough v. Murphy, 114 Pa. 358,359, 7 A. 139; Bolton v. King, 105 Pa. 78, 81.
Appellant endeavored to prove a subsequent agreement between herself and appellee as to the payment of her claim. To make a new binding obligation more is required than an acknowledgment of the debt and an expression of an intention to pay. As said inBolton v. King, supra, 105 Pa. 78, at page 81: "The promise to restore a debt from which the debtor has been discharged, whether by proceedings in bankruptcy or otherwise, must be a clear, distinct and unequivocal promise to pay the specific debt, not the expression of a mere intention to pay; it must be without qualification or condition, and must contain all the essentials of a valid express agreement, excepting only the element of a valid consideration; the moral obligation, taken with the fact of a pre-existing liability, will furnish the consideration. In an action upon such a claim the declaration must, therefore, be upon the new promise, and not the original, as the latter is extinguished by the discharge." See, also, Murphy v. Crawford,
supra; Hobough v. Murphy, supra; Yoxtheimer v. Keyser, 11 Pa. 364; 8 C.J.S., Bankruptcy, § 583b, p. 1571; 28 Am. Jur., Insolvency, § 94, pp. 839, 840.
But the present action was not instituted by appellant on any new promise made to her by appellee. The scire facias was a proceeding upon the judgment as such, and therefore is not an original action. "By the bankruptcy the judgment is extinguished; the new promise creates a new debt, for which the prior indebtedness is the consideration merely. The new promise, and not the judgment, is the meritorious cause of action": Murphy v.Crawford, supra, 114 Pa. 496, at page 499, 7 A. 142, at page 143. If appellant had established a new promise which was binding on *Page 86
appellee her remedy was to sue on such new promise. Kravitz v.Povlotsky, supra, p. 78.
Appellant's argument is devoted principally to the doctrine of promissory estoppel. See Fried v. Fisher et al., 328 Pa. 497,501-503, 196 A. 39, 115 A.L.R. 147; Volkwein v. Volkwein, Ex'r,146 Pa. Super. 265, 272, 22 A.2d 81. To the present situation it could have no application. And what we have said disposes of appellant's alleged right to prevail in the present action.
Judgment of the court below is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3862171/ | Submitted December 12, 1924.
The action was in replevin. The appeal is from the refusal of the court below to enter judgment for the plaintiff for want of a sufficient affidavit of defense. The question involved is whether the bailor of an automobile chassis, in repossessing itself of the leased property, pursuant to the contract, on default of the bailee, is entitled to take and retain as its property an automobile body purchased by the bailee from a different manufacturer and placed by him on the chassis subsequent to the contract of bailment.
The White Company leased to the defendant "one used White Commercial Chassis, Serial No. 45427, together with all added and substituted parts and equipment, bodies and accessories placed on either the body or the chassis during the life of this lease, whether because of necessary repairs, replacements and additions or otherwise." Plaintiff contended that as the body was placed on the chassis by the defendant during the life of the lease, on his default, it was entitled, under the foregoing clause, to take and retain as its property not only the chassis but the body as well. It therefore replevied the entire truck and in its declaration claimed ownership and right of possession of both chassis and body. Defendant, in his affidavit of defense, denied plaintiff's ownership of the body and set up his own title thereto. On a rule for judgment for want of sufficient affidavit of defense the learned court below held that the plaintiff might have obtained judgment for the chassis, but that the claim in the declaration was too broad and discharged the rule.
The appellant must rely, if at all, on the special provisions of its contract. The general doctrine is well expressed in Ruling Case Law (Vol. 1, pp. 118, 119), as follows: "An article repaired by the addition of the repairer's materials, provided it remains substantially the same thing, belongs, together with the additional materials, to the owner of the original article. So, a *Page 487
wornout wagon which is repaired by the addition of materials of greater value than the wagon in its defective condition belongs, nevertheless, to the owner of the wagon, though the mechanic has his lien. But it seems that when the repairs may be severed from the original materials, without detriment to the rest of the article, they do not become the property of the owner of the article repaired, as where the repairs consist of new wheels and axles for a wagon." It is well known that a chassis and motor body, although joined together to form a truck, may easily be separated without injury to either.
But appellant points to the clause in the lease above quoted as justifying its position. The clause relied upon forms part of the description of the subject-matter leased; it is not a provision defining the terms and conditions of the contract. It purports to designate the property belonging to the bailor and leased by it to the bailee and for which the latter was to pay rent. It does not specifically provide that parts and equipment, etc., added by the bailee to the chassis during the life of the contract shall become the property of the bailor, but only describes the subject-matter delivered and leased by the bailor to the bailee; and if construed most strongly against the bailor, as it should be, it would not be held to cover anything else. How from such a clause, alone, can it be held that the bailor is leasing to the bailee property not yet in existence, and never in the ownership or possession of the former? It is broad enough to cover any parts, equipment, body or accessories which might be placed on the chassis by the bailor during the life of the contract.
But even if construed to extend the provisions of the lease to parts, equipment, etc., added by the bailee to the chassis it must, on any fair and reasonable interpretation, be confined to such articles as were furnished by the bailee by way of repair, replacement or substitution. In drawing up the contract a printed form was used which was intended for the bailment of a complete truck *Page 488
and not of a chassis only; for in its printed portions and except where "chassis" is written in the blank space left for the description of the bailed article, the agreement always refers to the "said truck." The printed words, "together with all added and substituted parts and equipment, bodies and accessories placed on either the body or the chassis during the life of this lease, whether because of necessary repairs, replacements and additions or otherwise," must, therefore, be construed in relation to complete trucks with body and chassis, and in mentioning "bodies," are intended to refer only to bodies supplied by way of replacement or substitution to a complete truck having a body when leased to the bailee. In the language of the court below: "The word `bodies' like the word `accessories' embraces only articles procured by the bailee to take the place of similar articles forming part of the trucks for the bailment of which the form was intended to provide. It would, of course, be impossible to add a body to a complete truck. Such an addition must necessarily be by way of substitution or replacement. The words `or otherwise' add nothing to the enumeration of particular cases which precedes them."
We concur in the admirable summary of that court: "It is our opinion that, under a proper construction of the contract between the plaintiff and defendant, the latter's failure to make the payments that he had agreed to make, gave the plaintiff the right to resume possession of what it had bailed to him, with such replacements as the defendant may have added thereto by way of substitution for broken or discarded parts; but that since the chassis as delivered to the defendant was without a body, that used by the defendant in connection with it cannot be regarded as a replacement or substitution and, therefore, is something which still belongs to him and over which the contract gives the plaintiff no right of possession. The rule for judgment, relating, as it does, to *Page 489
the entire truck replevied by the plaintiff, must be discharged."
The judgment is affirmed, with a procedendo. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3864638/ | This is a petition for certiorari to review the action of the zoning board of the town of North Providence, hereinafter called the board, which granted to Mary DeFelice an exception for the erection of a gasoline station and garage on her property at the southwest corner of Smith and Layton streets, otherwise described as lot 382 on assessors' plat 8 of that town. The writ issued and in compliance therewith the board has certified to this court all the records relating to the proceedings, which include a stenographic report of the testimony given for and against the granting of the application at a public hearing before the board. *Page 367
It appears of record that the DeFelice lot is in a business district but its westerly line bounds on a residential district. The petitioners Lough and wife own and reside on premises immediately to the west of that line. On the DeFelice lot, facing Smith street, there is now a small wooden building that is used in connection with a gasoline station which has been in operation for over seventeen years. At the rear of and attached to this structure is another wooden building, with a garage door opening on to Layton street, that has been used for a number of years for the repair of batteries and electrical mechanism on automobiles. Mrs. DeFelice asks for an exception to the zoning ordinance so that she may replace the buildings just mentioned with a complete new one-story building of cement block construction and white stucco finish, all repairs to automobiles to be made within that building.
According to the plans submitted to the board, the side elevation of the proposed building shows a garage door opening on to Layton street approximately the same distance from the Lough residence as the door which is now located in the present wooden building on that street. The plan also shows a window between the garage door and the end of the building. The main grounds of objection from remonstrants to the granting of the exception were that automobiles driven into and out of the garage from Layton street would create a traffic hazard dangerous to public safety, and that the value of surrounding property would be depreciated by the erection of the proposed building. A further objection by the Loughs was that noise and odors coming through the garage window would cause them personal discomfort. On the other hand, there was a great deal of testimony, through witnesses and by petition, denying all such claims and urging the granting of the exception as a marked improvement over existing conditions.
The power of a zoning board in passing on an application for an exception is controlled by the language of the ordinance. Such a question was fully considered by us in the recent *Page 368
case of Harrison v. Zoning Board of Review, 74 R.I. 135. What we there said as to the power of the board to grant an exception is clearly applicable in the instant case. Section 23, subdivision B, of the ordinance now before us provides as follows: "Exception under specific rules. When in its judgment the public convenience and welfare will be substantially served or the appropriate use of neighboring property will not be substantially or permanently injured, the Board of Review may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the applications of the district regulations herein established in harmony with their general purposes and intent as follows: (1) Permit the location of a use as specified in * * * subdivision B of Section 5," which section, by reference to sec. 6 (1), authorizes the location of a "gasoline * * * filling station" and a "Garage repair shop" in a business district.
The provisions of the ordinance were fully observed by the board. In its decision it expressly found that to grant the exception would "not be contrary to public interest" and, in further protection of that interest and also of neighboring property, it granted the exception subject to nine conditions, among which were that no automobile body work be conducted on the premises at any time; that no automobile repair work be done on Sunday or after 9 p.m. on other days; that no motor vehicles awaiting repairs be parked on Layton street; and that no gasoline be sold after 10 p.m. on any day.
[1-3] The discretionary power of the board to grant exceptions under the ordinance in this case is broad and, as this court said in East Providence Mills, Inc. v. Zoning Board of Review,51 R.I. 428, at page 432, such grant of power was manifestly intended to provide "a necessary flexibility in the zoning ordinances in exceptional cases." In order to prevail in the instant case the petitioners have the burden of establishing that the board abused its discretion in granting the exception. We cannot reach such a conclusion *Page 369
on the record before us. The board granted the exception because it was its considered opinion on the evidence before it that the exception was not contrary to public interest. In thus exercising its discretion it did not overlook the reasonable protection of neighboring property, as appears from the substantial conditions that it attached to its grant of the exception. Since the decision of the board is in accordance with the provisions of the ordinance and there is ample evidence to support that decision, we cannot say that the board acted arbitrarily or abused its discretion in the matter.
The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the decision of the respondent board is affirmed. The papers in the case which have been certified to this court are ordered sent back to the respondent board. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554132/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 1, 2020
* * * * * * * * * * * * * *
AMANDA JO KILGUS, * No. 18-513V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Dismissal; Insufficient Proof;
AND HUMAN SERVICES, * Tetanus and Diptheria (“Td”) Vaccine;
* Anaphylaxis; Brachial Neuritis.
Respondent. *
* * * * * * * * * * * * * *
Nathan P. Powell, Webb, Tanner & Powell, P.C., Lawrenceville, GA, for Petitioner
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent
DISMISSAL 1
On April 9, 2018, Amanda Kilgus (“Petitioner”) filed a petition for compensation under the
National Vaccine Injury Compensation Program 2 (“Vaccine Program” or “Program”). 42 U.S.C. §
300aa-10 to 34 (2012). Petitioner alleges that she suffered “injuries, including anaphylaxis or
anaphylactic shock and brachial neuritis,” as a result of a tetanus and diphtheria (“Td”) vaccine that she
received on September 10, 2016. Pet. at 1, ECF No. 1. The information in the record, however, does
not show entitlement to an award under the Program.
On September 25, 2019, Petitioner filed an unopposed motion for a decision dismissing her
petition. ECF No. 29. In her motion, Petitioner conceded that “[a]n investigation of the facts and
science supporting her case has demonstrated to petitioner that she will be unable to prove that she is
entitled to compensation in the Vaccine Program.” Id. at 1. She continued, “to proceed further would
be unreasonable and would not provide an efficient use of the resources of the Court, the [R]espondent
and the Vaccine Program.” Id. Respondent had no objection to Petitioner’s motion. Id. at 1-2.
1
This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the Internet. In
accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other
information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the I agree that the identified
material fits within the requirements of that provision, such material will be deleted from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act”
or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
To receive compensation under the Program, Petitioner must prove either (1) that she suffered a
“Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the
vaccination, or (2) that she suffered an injury that was caused by a vaccine. See §§ 13(a)(1)(A),
11(c)(1). An examination of the record did not uncover any evidence that Petitioner suffered a “Table
Injury.” Further, the record does not contain persuasive evidence that Petitioner’s alleged injury was
caused by the flu vaccine.
Under the Act, petitioners may not be given a Program award based solely on their claims alone.
Rather, the petition must be supported by medical records or the opinion of a competent physician. §
13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim, and Petitioner has
not filed a supportive opinion from an expert witness. Therefore, this case must be dismissed for
insufficient proof. The Clerk shall enter judgment accordingly. 3
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
2 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4246610/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM SCOTT PHILLIPS; SUZANNE No. 16-17189
SCHMIDT PHILLIPS; WILLIAM
COTTRELL, on behalf of themselves and D.C. Nos. 5:15-cv-04879-LHK
all others similarly situated, 5:15-cv-05205-LHK
Plaintiffs-Appellants,
MEMORANDUM*
v.
APPLE INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted February 15, 2018**
San Francisco, California
Before: HAWKINS and TALLMAN, Circuit Judges, and MURPHY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
William Phillips, Suzanne Phillips, and William Cottrell (plaintiffs) appeal
the district court’s dismissal of their putative class action against Apple, Inc. for
alleged violations of California’s Unfair Competition Law (UCL), Cal. Bus. &
Prof. Code § 1700 et seq., and False Advertising Law (FAL), Cal. Bus. & Prof.
Code § 17500 et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s dismissal for lack of standing and failure to state a claim.
Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1014 (9th Cir. 2013) (standing);
Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 (9th Cir. 2002) (failure to state
a claim). We affirm.
1. Plaintiffs do not have standing to seek an injunction. “Standing must
be shown with respect to each form of relief sought,” and a plaintiff seeking
injunctive relief “must demonstrate that he has suffered or is threatened with a
concrete and particularized legal harm, coupled with ‘a sufficient likelihood that he
will again be wronged in a similar way.’”1 Bates v. United Parcel Serv., Inc., 511
F.3d 974, 985 (9th Cir. 2007) (citation and internal quotation omitted) (quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).
Plaintiffs established a past injury: they paid data overuse charges to their
third-party wireless carriers for one billing cycle after Apple enabled “Wi-Fi
1
This is true even where, as here, a claim arises under state law. Hangarter v.
Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021–22 (9th Cir. 2004).
2
Assist” on their Apple devices. They have not established, however, that they face
a “real and immediate threat of repeated injury.” Bates, 511 F.3d at 985 (quoting
O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). They disabled Wi-Fi Assist, so it
no longer causes data overuse. Their second amended complaint did not allege
that they intended to install future updates that would enable Wi-Fi Assist, or that
Apple would install such updates automatically—despite the district court’s
warning that failure to do so could result in dismissal of plaintiffs’ claims.
The fact that Apple generally encourages consumers to install software
updates does not establish that plaintiffs themselves are likely to be injured by
future updates. They could choose not to install updates, or they could install them
and immediately disable Wi-Fi Assist. In either scenario, they will be unharmed.
We also note that despite plaintiffs’ contention that they “have no choice but to
upgrade their iOS devices,” and the fact that Apple released eleven updates to iOS
9 in 2015 and 2016, none of the plaintiffs have experienced data overages as a
result of Wi-Fi Assist since they discovered and disabled the feature. Plaintiffs
therefore lack standing to seek injunctive relief.
2. The district court properly dismissed plaintiffs’ UCL and FAL claims.
See Fed. R. Civ. P. 12(b)(6). The only remedies available under these statutes are
injunctive relief and restitution. Korea Supply Co. v. Lockheed Martin Corp., 63
P.3d 937, 943 (Cal. 2003); Veera v. Banana Republic, LLC, 211 Cal. Rptr. 3d 769,
3
775 (Cal. Ct. App. 2016). As described above, the plaintiffs do not have standing
to seek an injunction, and they have failed to state a claim of entitlement to
restitution.
Restitution under the UCL and FAL2 “is confined to restoration of any
interest in ‘money or property, real or personal, which may have been acquired by
means of . . . unfair competition.’” Kwikset Corp. v. Superior Court, 246 P.3d 877,
895 (Cal. 2011) (quoting Cal. Bus. & Prof. Code § 17203). A restitution order
“thus requires both that money or property have been lost by a plaintiff, on the one
hand, and that it have been acquired by a defendant, on the other.” Id. Those
requirements are not met here. The plaintiffs lost money in the form of data
overuse charges, but that money was acquired by their wireless carriers—not by
Apple.
Plaintiffs insist that there is “no support in California case law” for the
proposition that a restitutionary remedy requires a close relationship between the
defendant and the funds sought in restitution, but that assertion is belied by the
very cases they cite. Those cases establish that a defendant may be required to
make restitution where a plaintiff’s loss indirectly, but clearly, inured to the
defendant’s benefit. See, e.g., People, ex rel. Harris v. Sarpas, 172 Cal. Rptr. 3d
2
The restitutionary remedies provided by the UCL and the FAL “are identical and
are construed in the same manner.” Hambrick v. Healthcare Partners Med. Grp.,
Inc., 189 Cal. Rptr. 3d 31, 54 (Cal. Ct. App. 2015) (citations omitted).
4
25, 47 (Cal. Ct. App. 2014) (“[Defendants] received money indirectly from
customers . . . .”); Troyk v. Farmers Grp., Inc., 90 Cal. Rptr. 3d 589, 618 (Cal. Ct.
App. 2009) (allowing restitution where it could “be inferred a substantial portion of
the service charges paid by the class members . . . were indirectly received by
[defendant]”); see also Colgan v. Leatherman Tool Grp., Inc., 38 Cal. Rptr. 3d 36,
62 (Cal. Ct. App. 2006) (noting that restitution is appropriate “where money or
property identified as belonging in good conscience to the plaintiff could clearly be
traced to particular funds or property in the defendant’s possession” (quotation
omitted)).
Plaintiffs did not allege that Apple received money or property, indirectly or
otherwise, from their overage payments.3 The district court explicitly invited them
to do so, granting them leave to amend their complaint to “allege a sufficiently
traceable connection between the money they paid and the money Apple received.”
Plaintiffs declined that opportunity. Absent any allegation that Apple directly or
indirectly received the money plaintiffs paid their wireless carriers for excess data
usage, they are not entitled to restitution, and the district court properly dismissed
their UCL and FAL claims.
Costs are awarded to Appellee.
3
Their reference to Apple’s “history of smart engagement with wireless carriers”
does not establish any link between the data overuse charges they paid to their
carriers and Apple’s revenue-sharing agreement with AT&T.
5
AFFIRMED.
6 | 01-03-2023 | 02-20-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3863089/ | Argued December 10, 1928.
Claimant, a miner, was injured at work May 5, 1919. Beginning May 19, he received compensation for total disability under an agreement approved by the board, until August 25, 1920 (63 weeks) when he signed a final receipt and returned to and continued at work, not as miner, but as laborer and at less wages than he received before his injury. So the matter stood *Page 172
without suggestion of partial disability, until 354 weeks after May 19, 1919. He then filed a petition "to review the said agreement as provided in Sec. 413 of the Workmen's Compensation Act of 1919," on the ground that he had not recovered his health. He does not claim that total disability recurred. There is no averment that any fraud, coercion, other improper conduct of a party, or mistake had resulted in the execution of the agreement (Sec. 413, 1919, P.L. 661) or of the final receipt (Sec. 434, P.L. 669).
Evidence was taken and the referee made the following finding: "We find that the claimant signed the final receipt by mistake." An order was made requiring payment of compensation for partial disability for the period of 300 weeks following May 19, 1919, less the 63 weeks during which claimant had received compensation for total disability.
On appeal the board said "The record ...... contains no evidence that claimant was laboring under any mistake of fact or law or was the victim of coercion or fraud when he signed a final receipt and resumed work." That conclusion, of course, negatived the finding that the receipt was signed by mistake, quoted from the report of the referee. Notwithstanding that however, the board concluded its report by stating that "the referee's findings of fact are affirmed; the conclusions of law and award are set aside and the appeal sustained." On the appeal to the common pleas the court quoted the testimony concerning the execution of the receipt and said "from it the referee made his findings that the receipt was given by mistake which finding the board affirmed." That contradiction in the report of the board makes it impossible for us to review the case on the merits: it is essential to have a clear finding on the subject. We are therefore constrained to apply section 427 of the Act (1919 P.L. 642, 666) authorizing the court "if the findings of the board or referee are not, in its opinion, sufficient to *Page 173
enable it to decide the question of law raised by the appeal" to remit the record for more specific findings of fact: Allen v. Bill's Tire Shop, ___ Pa. Superior Ct. ___
It is settled that after 300 weeks (Sec. 306b, 1915, P.L. 736, 742) in the absence of fraud or any of the other contingencies specified in sections 413 and 434, supra, (the Act of April 13, 1927, P.L. 186, is not involved in this appeal) liability for partial disability ceases, (Ludington v. Russell Coal Mining Co., 90 Pa. Super. 318), and no award can be made. If, therefore, the receipt was not signed by mistake as the board found in one part of its report, the application for relief came too late, 354 weeks after the obligation to pay arose. On the other hand, if signed by mistake, as the board may also be understood to have found by its affirmance of the findings of the referee, the application would seem to be in time, not however for the reasons stated by the court below, but because a final receipt, executed by mistake, may be set aside under section 434 supra, although the applicable period during which compensation might have been payable (whether 300 or 500 weeks, depending on the character of disability) has elapsed. The court below, on the authority of Gairt v. Curry Coal Mining Company, 272 Pa. 494, (a case of total disability), was of opinion that because the act imposed liability for total disability for 500 weeks, claimant's petition in this case was in time (though based on a claim for partial disability), but that is incorrect because it is inconsistent with section 306 (b) supra, providing "This compensation shall be paid during the period of such partial disability; not, however, beyond 300 weeks after the fourteenth day of such total disability. Should total disability be followed by partial disability, the period of 300 weeks mentioned in this clause shall be reduced by the number of weeks during which compensation *Page 174
was paid for such total disability." See Ludington v. Russell Coal Mining Co., supra.
The judgment is reversed and the record is returned to the court below with instructions to remit the record to the Workmen's Compensation Board for further hearing and determination as prescribed by law; costs to abide the result. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3863090/ | Argued October 10, 1941
The plaintiffs, as assignees, brought an action of assumpsit to recover the amount alleged to be due on matured stock issued by the defendant building and loan association. After the pleadings were filed the plaintiffs moved for judgment for want of sufficient affidavit of defense. The court granted a rule, which, after argument was made absolute. Judgment was entered and damages assessed in the sum of $1,259.68. *Page 574
The following facts are in substance averred in plaintiffs' statement of claim. Walter H. Fenimore died testate July 9, 1931. In his will he bequeathed the residue of his estate to his wife, Catharine A. Fenimore, and his two sisters, Ida Fenimore, and Ella Fenimore. Among the assets of the estate were ten shares of the seventeenth series of the capital stock of the defendant building and loan association, which were pledged for loans made by the association to the decedent. In due course of time the ten shares of stock matured and the loans were paid. In March 1934, there was a balance of $978 due the estate. On September 16, 1935, the association paid on the matured stock in the seventeenth series ten per cent, or $98, leaving a balance due of $880.
The executors of Walter H. Fenimore filed their account, which was audited and an adjudication was filed in 1932. The defendant association failed to present a claim at the audit. Pursuant to the decree of distribution the executors assigned Fenimore's paid up shares to the residuary legatees.
Catharine A. Fenimore, the widow, died May 22, 1937, first having made her last will. In the adjudication of her estate her one-third interest in the ten shares of the building and loan stock was awarded equally to Gustav Kielmayer, Elizabeth Colton, Elizabeth Miller, and Nicholas Kielmayer.
The defendant, in its affidavit of defense, denied all liability and in its counter-claim and set-off averred that the decedent's estate was indebted to it under an agreement to indemnify the company from all loss, damages, etc., sustained by reason of a mortgage loan it made to Charles Allen. The appellant, in its paper book challenged the jurisdiction of the orphans' court to distribute the ten shares of stock, alleging that it was in possession and control thereof. That position, however, was abandoned at the argument of this appeal. There was left for our consideration the contention that the court erred in holding that the affidavit of defense was *Page 575
insufficient and that the counter-claim did not set forth a valid cause of action.
Section 49 [d] of the Fiduciaries Act of June 7, 1917, P.L. 447, 20 Pa.C.S.A. § 864, provides as follows: "No creditor of a decedent who shall neglect or refuse to present his claim at the audit of the account of the executor or administrator, . . . . . . shall be entitled to receive any share of the assets distributed in pursuance of such audit, . . . . . ."
It is true that at the time of the audit the liability of the estate had not matured as the association had not exhausted available remedies against the original debtor: League IslandCommunity Building and Loan Association v. Doyle, 323 Pa. 287,290, 291, 185 A. 636. Notwithstanding that fact, there was an alleged contingent liability; it was the duty, therefore, of the defendant association as a creditor to present its claim, whatever its status was, to the executors or to the court at the time of the audit or be debarred from participating in the proceeds of the estate, as provided in section 49 [d] supra.
In Piper's Estate, 208 Pa. 636, 57 A. 1118, the Supreme Court in a per curiam affirmed the decision of Judge PENROSE. Piper had executed a bond and mortgage and died some years thereafter. The executor's account was audited and a distribution awarded. The holder of the bond and mortgage did not present a claim at the audit. Four years later he filed a petition for the purpose of having the amount paid to the legatees applied to a deficiency resulting from the sale of the mortgaged property. In dismissing the petition Judge PENROSE held that the distribution by the orphans' court was binding upon everyone, and especially "those who are actually parties, or, but for their own act or laches, might have been. — Creditors who do not choose to come into the orphans' court have the right to stay out. They may, if they prefer, sue in another forum; but if they do they lose all claim to the fund distributed, and *Page 576
cannot be heard to complain that the rights which they failed to assert were not protected or provided for: Hammett's Appeal,83 Pa. 392."
This same principle is recognized and upheld in Downing v.Felheim et al., 309 Pa. 566, 164 A. 598; and Timmins' Estate,338 Pa. 475, 13 A.2d 7.
In Walbridge's Estate, 314 Pa. 250, 171 A. 580, the petitioners, four creditors, failed to give written notice of their claims as required by the Fiduciaries Act. They filed petitions to open the adjudication after it had been confirmed, alleging that no distribution had actually taken place. In two claims the amounts were fixed and in two they were contingent upon matters which were pending in bankruptcy court. Judge STEARNE of the orphans' court refused to open any of them and his opinion was affirmed per curiam on appeal.
Aarons v. Public Service Building Loan Association et al.,318 Pa. 113, 178 A. 141, the principal case relied upon by the appellant as controlling, has no effect upon the case at hand. There the question was whether a bank had a right, when served with a writ of attachment execution, to set off against a deposit account an indebtedness due by him to it. The court held that it did. It is quite apparent the question involved was not similar to that we have before us in this appeal.
The stock in question having been awarded by the orphans' court to the residuary legatees, these plaintiffs are the absolute owners thereof. The defense raised by the appellant is unavailing. We are in entire accord with the disposition made of this case by the learned court below.
Judgment is affirmed. *Page 577 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3864657/ | The case is before us upon the respondent's motion to establish the truth of exceptions alleged to have been taken by him at the trial of the above entitled indictment before a justice of the Superior Court sitting with a jury.
The respondent duly filed his bill of exceptions in the Superior Court. Some of the exceptions stated in the bill were allowed, two were disallowed and a number were altered by the justice.
A determination of the motion involves a consideration of proper practice in the statement of exceptions in accordance with the statute and the decisions of this court, and the relative duties of a justice of the Superior Court in passing upon the truth of exceptions stated in a bill, and of this court in passing upon their validity. In a number of reported and unreported cases we have declared that the statutory requirement that a bill of exceptions shall state separately and clearly the exceptions relied upon is met by a formal enumeration of the exceptions; that an exception to a ruling made in the course of a trial and appearing in the transcript is best stated by an exact reference to the place in the transcript where the ruling appears and also the place where the exception is noted; and that such statement is concerned only with the truth of the exception,i.e., the fact that it was duly taken and not at all with the claim of the party excepting as to the validity of the exception or as to its scope and effect. Such claims should not be made a part of the bill and are not for the consideration of a justice of the Superior Court when the bill is presented to him for allowance, but are matters to be urged to this court at a hearing upon the merits of the exception. Blake v. Atlantic NationalBank, 33 R.I. 109; Dunn Worsted Mills v. Allendale Mills,33 R.I. 115; Beaule v. Acme Finishing Company, 36 R.I. 74, at 76; Nichols v. Mason Co., 44 R.I. 43; Bannon v. Bannon,44 R.I. 468; Fainardi v. Pausata, 45 R.I. 462. *Page 247
The respondent's bill of exceptions, as presented to the justice for allowance, offended in many particulars against the rules of practice referred to above. We would recommend to counsel that in the future for their own convenience and for the convenience of the justice to whom a bill of exceptions is presented for allowance, they will adopt the simple method of stating exceptions which has been suggested in the opinions cited above.
We will consider as established as true the exceptions allowed by the justice in the form in which they were presented to him, although in some instances their statement is not in accord with the practice recommended by this court.
The statements of exceptions 35 and 104 were altered to correct clerical mistakes occurring therein. These mistakes relate to the numbers of the questions appearing on certain pages of the transcript. Exception 35 as allowed by the justice still contains a clerical mistake. The exception is noted on page 627 of the transcript and not on page 527. As thus corrected the allowance of these exceptions is approved.
The justice altered the statements of exceptions 24, 25, 61 and 73 in the bill. Each of these statements presents the same question. In each case on the face of the transcript it appears that an exception was noted to a ruling of the justice permitting the introduction of certain testimony. In his bill of exceptions the respondent claims in each case that the scope of the exception noted in the transcript, covered objections to the admission of other testimony to which exception was not specifically noted, and that the effect of the exception was to permit the review by this court of the admission of that other testimony. While such statement of an exception does not call upon the Superior Court justice to pass upon the validity of the exception it does seek an allowance of more than its truth as we have defined the word "truth" in this connection, i.e., the fact that the exception claimed was actually taken. It seeks to have an approval by the justice of the Superior *Page 248
Court of a party's claim as to the scope and effect of an exception beyond what appears upon the face of the record. In our opinion that is a question which is not to be submitted to such justice upon the presentation of a bill for allowance, but is a claim which can only be urged before us at a hearing upon the merits of an exception. We approve the action of the justice in allowing the exceptions in question solely as they appear in the transcript.
The statement of exception 41 was altered. The statement as set out in the bill is confusing and not in accordance with the record. The justice properly restricted the statement to the exception to his ruling refusing to strike out the witness' answer to a certain question, as the ruling and exception appear in the transcript.
The justice altered the statement of exception 81. The statement is involved and confusing. It violates the statutory requirement that exceptions should be stated separately and clearly. The transcript discloses that the exception upon which the respondent bases the statement in the bill was noted to the refusal of the justice to give a certain direction to the Attorney General concerning his examination of the witness Vincent F. Cosmo. If the respondent claims that this exception should be given a wider scope he may urge that claim before us at a hearing on the merits of the exception.
The exceptions 42, 59 and 67 should not be allowed. They are each governed by the same principle. Exceptions properly to be stated in a bill are solely those taken to rulings, directions and decisions of the Superior Court. Secs. 8 and 9 Chapter 348, General Laws 1923. Exceptions 42 and 59 were each based on the respondent's request that an exception be noted to a certain answer of a witness. Exception 67 was based on the respondent's request to have an exception noted to the method of the Attorney General in the examination of a witness. In neither instance was a request made to the justice for a ruling or direction regarding the matter in question. It is only to such a ruling or *Page 249
direction that an exception could properly have been taken and noted on the record, or stated in the bill.
The justice altered the statement of exception 96 as it appears in the bill, and allowed it as an exception to question 501 on page 1763 of the transcript. An examination of the transcript discloses that question 501 was a question propounded by the respondent to his own witness, Jordan, to which question the respondent had no reason to object and did not except. It is clear that the exception was, as the respondent has stated, to the ruling of the justice refusing to permit further examination of the witness Jordan as to movements of the respondent on a certain day. The justice also bases his refusal to allow the exception as stated by the respondent on the ground that later in the case the respondent was permitted to ask of the witness questions of similar purport. In this ground of refusal the justice was attempting to pass upon the possible prejudicial effect of the ruling, and to determine the validity of the exception rather than its truth. The exception as stated in the bill should be allowed.
The justice altered the statement of exception 64 and disallowed exception 107. The same question is presented in each and we will consider the two statements together.
Exception 67 was taken and noted at the conclusion of an extended interrogation of a witness by the justice himself. The record of the examination extends over fifteen pages of the transcript. The respondent in his bill states the exception as one taken to the examination of the justice.
Exception 107 was taken after the justice had interrogated another witness at some length. According to the transcript the exception does not relate to any particular question asked by the justice but to all of the examination of the witness by the justice up to the time the exception was noted. That is also the effect of the respondent's statement of this exception in his bill.
In the furtherance of justice it is sometimes proper and commendable for a judge presiding in a jury trial to interrogate *Page 250
a witness as to relevant matters proper to be presented to the jury. He should do this, however, with caution. In such examination he should guard against even the appearance of changing his position from that of a judicial officer impartially presiding at the trial to that of a partisan advocate interested in establishing the position of either party. He should not be led to express by language, or the tones of his voice, or in any other manner his opinion as to the credibility of the witness or the weight which should be given to his testimony. His examination is to be governed by the same rules as those which govern counsel and his questions are equally open to exception.
If an examination of a witness by the justice appears to counsel of either party to be improper and prejudicial to the rights of his client, such counsel is placed in an embarrassing position. On the one hand he must determine whether he will risk a possible loss of the jury's favor by objection and exception, thus perhaps appearing to desire to keep facts from the knowledge of the jury, which the judge from his impartial position in the case seems to regard as important and admissible; and, on the other hand, by remaining silent, and thus acquiescing in the examination, he may lose his right, upon review, to object to the introduction of evidence which he regards as improper and prejudicial to his client.
When, however, it appears to counsel that his duty to his client requires him to object and except to a question of the justice presiding, he should do so respectfully but without hesitation or apology, and the fair-minded judge, though he may regard the objection as unsound, will receive it and will note an exception taken to a question propounded by him with the same attention and the same judicial courtesy that he would give to objections and exceptions taken by counsel of one party to the questions of the other.
To the questions of a judge the same rules apply as to the time and method of making objections and taking exceptions as govern the objections and exceptions of counsel to *Page 251
the questions of his adversary. Objections and exceptions to questions must be taken as soon as the question is asked and before it is answered, and if the answer to a question is not responsive or is in any way improper motion should be made that it be stricken out.
If objection is to be made to his questions the justice is entitled to have the benefit of such objection and the reasons therefore before he proceeds further with an examination, which he may recognize as improper and prejudicial when such impropriety is brought to this attention. We will not permit a general exception taken after an examination, such as the ones in question, which will enable a party to press before us any claim of error which upon later careful consideration of the record the party may desire to urge with reference to any portion of an extended examination of a witness by a justice of the Superior Court. The exceptions 64 and 107 are disallowed.
The respondent may submit to us on March 22, 1926, a statement of his exceptions drawn in conformity with this opinion, stating therein, in order, all exceptions allowed by us, including such as have been allowed by the justice and approved by us. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3988234/ | I concur. As to the type of advertising put out by Auerbach and Schubach, some of it, I think, approaches the line of leading the public to believe that they are themselves practicing optometry and, if so, would be in contravention to subsection (3) of section 79-1-38. But I am unable to say that it was not sufficiently indicative, except possibly in several instances, that some licensed optometrist was doing the eye testing for them. *Page 54 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3871692/ | These are actions of trespass on the case, brought by a man and his wife respectively, to recover damages sustained and alleged to have been caused by the defendant's *Page 229
negligence in so operating an automobile that it ran into one in which the plaintiffs were riding, in the intersection of Thayer and Waterman streets in the city of Providence.
These actions were tried together before a jury in the superior court and at the conclusion of the trial a verdict for the defendant was returned in each case. Thereafter in each one a motion by the plaintiff for a new trial was granted by the trial justice, on the ground that the verdict was against the evidence and the weight thereof. Each of them is now before us on a bill of exceptions filed by the defendant, the principal exception being to the granting of the motion for a new trial. In neither of them was a bill of exceptions filed by the plaintiff.
According to the testimony of the plaintiff Major Edward K. Hovas the collision, which was at about 10 o'clock in the evening of Labor Day, September 1, 1941, when the weather was clear and the streets dry, occurred in the following manner: He, then a captain, was returning to his residence in the city of Providence from a shore resort and was driving his automobile in a southerly direction down Thayer street in about the center of the street. In the car with him were his wife and their three children. His wife was sitting on the right side of the front seat and their daughter Josephine, fifteen years old, was sitting between them. On the rear seat were their daughter Lydia, twenty years old, sitting on the left, and their son Roy, nineteen years old, sitting on the right.
Just before entering the intersection with Waterman street he stopped, a little beyond the "stop sign" on Thayer street on his right, the front of his car being then 2 or 3 feet north of the extension of the curb line of Waterman street, the sidewalk on which was 12 feet wide. His seat was 5 feet back of the front end of his car so that he had an unobstructed view up that street. While the car was stationary, he looked to his right to see if any car was approaching from that direction, and saw a car, which proved to be the *Page 230
defendant's, coming on its right side of Waterman street, at a speed which he estimated to be around 25 miles per hour. It was then about at the westerly end of a long building on the south side of the street. He saw no other car coming. Waterman street was 25 feet wide from curb to curb and there were trolley car tracks in the middle of it.
Major Hovas formed a judgment that it was safe for him to proceed across the intersection; so he then started his car forward in first, i.e., the lowest, speed and did not see the other car again until the rear of his car was over the trolley car tracks and the front part of it was beyond them. Then he saw the glare of headlights on his right and saw the defendant's car coming. It was very close and headed for the center of the plaintiff's car, which car was then in second speed; and he pushed the accelerator clear down. His car "jumped ahead" and had traveled about 10 feet farther and all but the rear of it was beyond the intersection, when the front of the defendant's car ran into the rear of the plaintiff's car. The result of the collision was that the plaintiff's car was turned upside down and badly damaged and both the plaintiffs were severely injured.
When he was later recalled by the defendant's attorney for further questioning and was asked whether he did not recollect testifying at a previous trial of the case that his car was in high gear and going about 12 miles per hour, when it was about at the center of the intersection, and that he "had skipped second", and that he had made an "instant stop" before entering the intersection, he answered in the negative and said that he believed that the car was in second gear, when it was in the middle of the intersection, but that it might have been in high.
The other plaintiff testified that, as her husband came to Waterman street, he stopped at the corner and then started again; that when he stopped, she saw a car to the right coming on Waterman street, quite a distance away; that when he started up again, he drove straight ahead and when they were almost three-quarters through the intersection, *Page 231
she saw the other car, a big one, approaching fast; that their car "started to shake like"; that when only the back of it was in Waterman street, the other car hit it with a bang; and that she next found herself on the sidewalk with a doctor beside her.
The daughter Josephine testified that at the time of the accident she was resting, with her head on the back of the front seat and her eyes closed; that she remembered the car stopping; and that then, as they were going across Waterman street, she felt a little jerk forward, as if her father had stepped on the accelerator; and that the next thing she remembered was an "awful bang and crash-up." The other daughter testified that her father's car stopped at the stop sign on Thayer street near Waterman street; that she was then looking to her left; that after they had gone some distance into Waterman street the car made a jerk forward and then a "bang up" occurred; but that she did not see what hit the car.
The plaintiff's son testified substantially as follows: He was at the time of the accident a pupil at the Hope street high school in Providence and was very familiar with the locality, having many friends in Brown University. His father's car stopped momentarily at the stop sign on its right side of Thayer street just before entering its intersection with Waterman street. The car was then about in the middle of Thayer street and the front of it was perhaps 3 or 4 feet beyond an extension of the northerly curb line of Waterman street.
When the car started up, after that stop, he had his face to the right, wondering if any of his friends were then around. He then saw one automobile, traveling downgrade easterly, on the south side of Waterman street and just about at the west end of the second building west of Thayer street, on that side. This was a long laboratory building of Brown University. There was no other car between that one and Thayer street. He looked ahead down Thayer street *Page 232
and saw a car parked on the right side but not in the way of his father's car.
When he looked to his right again, he saw that the car which he had seen on Waterman street was coming quite fast on the south side of that street, between the trolley car tracks and the curb, and was only about 10 feet away from his father's car. Then his father's car "lurched forward suddenly." He watched the other car, which made no change of speed but came straight forward and struck his father's car, only 3 or 4 feet of which was in the intersection, overturned it and continued about four car lengths down Waterman street.
Major Littlefield testified for the plaintiffs substantially as follows: He lived on the northerly side of Waterman street east of Thayer street and at the time of the collision involved in this case was returning home from a moving picture theater on the latter street. As he was walking down the easterly side of that street, intending to turn to his left on reaching Waterman street, he saw, out of the corner of his eye, an automobile, which he afterwards learned was that of Major Hovas, moving south on Thayer street and approaching Waterman street. He noticed it go to the intersection, stop there and then proceed across Waterman street.
At the time when it made this stop he saw headlights coming down Waterman street, which were then probably about midway of the laboratory building at a point which, at a "rough guess", he would say was about 100, 150 or 200 feet from the intersection when the car on Thayer street started to cross. He formed no judgment of the speed of the car on Waterman street. The car on Thayer street had reached a point a little beyond the intersection, when the right rear of it was hit a crashing blow by the right front of the car coming down Waterman street.
Not wishing to be caught by the police as a material witness, he "ducked out of sight." The next day he learned from a newspaper of Major Hovas's connection with this *Page 233
collision. About two months later he went on special duty at Camp Devens for two weeks and there had occasion to meet Major Hovas, for the first time, and inadvertently admitted that he had witnessed this accident. "That", the witness said, "was the beginning of a long and beautiful friendship, you might call it."
On cross-examination he admitted that at the previous trial of these cases he probably testified that Major Hovas made an "instant stop" before entering the intersection. The context indicates that what he meant, if he so testified, was that Major Hovas stopped at the stop sign and then at once started forward again. This was no evidence that Major Hovas did not make a full stop.
A man who was a witness for the defendant testified to the following effect: On the evening of this collision he was walking westerly on the south side of Waterman street and was about 100 feet east of Thayer street when he saw a car, being the one which the defendant was driving, coming down Waterman street, not having yet reached Thayer street; and at the same time he saw a car moving down Thayer street and then in the middle of the intersection of the two streets. As an accident appeared to be imminent, he watched the cars. Then, to quote his own language, "the car coming down Waterman street struck the car at the right rear corner of the car and they broke away immediately and the car on Thayer street continued down Thayer street and as I was some ways from the corner, it disappeared from my view before it was turned over."
He said that he "didn't make any note of the speed of the car on Thayer street, except that it appeared to be increasing its speed, going faster all the time." He said that he thought that the car on Thayer street was going faster than the car on Waterman street. He went to the Hovas car and found that it had turned upside down and was across Thayer street at right angles, the front facing to the west. On cross-examination he stated that at the time of the collision the front portion of the Hovas car had cleared *Page 234
the southerly curb line of Waterman street and that it was the right front of the defendant's car that collided with the right rear of the Thayer street car.
The defendant himself was the only other witness who testified on his side of the case. He was twenty-one years old at the trial, which would make his age at the time of this accident about nineteen years. His testimony, in substance and effect, was as follows: At the time of the collision he was on the way to his home in Weymouth, Massachusetts, from the city of New Haven, where he had been spending the week-end. With him in the car were two other young men who, at the time of the trial, were respectively in the army and navy, and a young woman, who was his cousin. He had never driven through Providence before and was unfamiliar with the streets through which he was driving. One of the other young men was on the front seat with the defendant, whose cousin and the other young man were on the back seat.
The speed of his car, as he was driving down Waterman street, on its right side, and approaching Thayer street, was about fifteen miles an hour. As he started to enter the intersection, he looked to his right and then to his left and saw a car coming down Thayer street quite fast, right at him. He first saw it when he was entering the intersection. So he put on his brakes; and the other car, which seemed to be coming 30 or 35 miles an hour, veered sharply to the left and the front of his car came in contact with the rear of the other car, which tipped over and rolled over and hit a parked car on the west side of Thayer street. It rolled again and came to a standstill. His car stopped just about at the point of contact and stayed there until after he had gone to help people out of the Hovas car. He then came back and found, in the street, marks about 10 feet long, and curving a little to the right, made by his tires.
The police arrived in due time and he heard the police lieutenant ask the driver of the other car if he stopped at the stop sign, as he entered the intersection; and he heard *Page 235
the latter say that he slowed down almost to a stop at about 12 miles an hour and then came through. The defendant also testified, on cross-examination, that he had applied his brakes 20 to 25 feet before he got to Thayer street, though not as hard as he could; that when the collision occurred he had them down as hard as he could, but that he would say that the car "hopped ahead 2 or 3 feet"; that he believed that the front of his car was just about 3 or 4 feet into the intersection and was still slowing down, when he first saw the Hovas car, which was then just about at the line of Waterman street and moving at a speed of 30 or 35 miles an hour.
At the conclusion of the testimony of witnesses, the defendant's attorney read in evidence, by agreement with the plaintiffs' attorney, the following, as being the statement which a police lieutenant would, if present, testify was made to him by Major Hovas at the scene of the collision, soon after it occurred: "I was driving on Thayer street going south right in the center of the intersection, and out of the corner of my eye, I saw this car coming from my right and I did my best to get out of the way. I gave it the gas. The collision was too quick coming from my right. When it hit, it turned me around. I did my best to hold it and then it turned over. I had slowed down almost to a stop at the stop sign and that was the time I saw him and gave it the gas."
Also, by a similar agreement, the defendant's attorney read in evidence the following, as being the statement which the police lieutenant would, if present, testify was similarly made to him by the plaintiff's son: "I was riding in the rear seat of the Chevrolet on the right side, and looking to my right I saw the lights of a car on the highway but did not see the car until we passed the corner. Then I saw the car coming toward us. I thought it would hit in front and my father stepped on the gas and the car hit us and turned us sharply." *Page 236
The defendant's attorney, in his brief and argument before us, relied on numerous exceptions taken by him at the trial to statements made by the plaintiff's attorney to the jury and to rulings by the trial justice in the course of the trial. He tried to justify such reliance on the ground that if, notwithstanding such statements and rulings, the defendant was able to secure a verdict in his favor, "the evidence must have overwhelmingly preponderated in his favor." This argument is very ingenious, but we can see no merit in it.
The only decisive exception in each of these cases is the one taken to the decision of the trial justice in granting the plaintiff's motion for a new trial. In the case of Major Hovas the trial justice, in his decision, said that it seemed to him that the only real question was whether Major Hovas was guilty of contributory negligence by entering that intersection after having seen the defendant's car. This question he answered as follows: "I think the great preponderance of evidence is against that proposition. I think he was fully justified in entering the intersection at the time he did and that this collision was due entirely to the negligence of the defendant."
It is well settled by opinions of this court, that when the evidence is nearly balanced, or is such that different minds may reasonably and fairly come to different conclusions therefrom, the trial justice, in passing upon a motion for a new trial, should not disturb the verdict of the jury, even though his own judgment might incline him to a contrary conclusion. Humes v.Schaller, 39 R.I. 519 at 522; Nichols v. New England Tel. Tel. Co., 57 R.I. 180, at 185; Anderson v. Johnson,59 R.I. 241, at 244. In other words, he should give weight to a jury's finding and not set it aside upon a mere doubt of its correctness or substitute his own judgment for that of the jury. Colgan v.United Electric Rys. Co., 62 R.I. 184, at 188.
The rules to be applied by this court, when passing upon an exception to a decision of a trial justice sustaining a *Page 237
motion for a new trial on the ground that the verdict is against the weight of the evidence, are also well settled. One of these is that where the evidence is conflicting and there is nothing to indicate that the trial justice overlooked or misconceived any of the evidence or failed in any way to perform his duty in the matter, his decision granting a motion for a new trial will be regarded by us with great persuasive force and will not be disturbed unless it appears to be clearly wrong. Colgan v.United Electric Rys. Co., supra, at 190; Allsop v. Gallant,62 R.I. 339, 404. But if in the judgment of this court the decision was clearly wrong, an exception thereto should be sustained.
In Major Hovas's case we have carefully examined and considered the evidence relevant to the question of contributory negligence by him; and we are of the opinion that the trial justice was clearly wrong in deciding that "the great preponderance of the evidence" was against the proposition that the plaintiff was guilty of contributory negligence "by entering that intersection after having seen the defendant's car." On the contrary, the evidence on the question of Major Hovas's contributory negligence presented a clear issue of fact for the jury's determination; and such evidence was so nearly balanced that fair-minded persons could reasonably come to different and opposite conclusions. In our opinion the trial justice clearly misconceived the weight of the evidence on this issue.
We therefore are of the opinion that the defendant's exception to the decision of the trial justice should be sustained. As this conclusion is decisive of the defendant's right to the entry of a judgment in his favor in that case, upon the jury's verdict, we see no sufficient reason for deciding or discussing herein any of the defendant's other exceptions, nearly all of which were to the admission of evidence offered in behalf of the plaintiffs.
As to the wife's case, the situation is very different. There was no evidence that she had anything to do with the driving of her husband's car or assumed any responsibility with *Page 238
regard thereto, or that she was in any way guilty of contributory negligence. On the other hand, there was evidence from which the trial justice could reasonably find, as he did in passing upon her motion for a new trial, that the defendant was guilty of negligence in the driving of his car. And it is clear from the language of his decision that in his judgment the defendant's negligence was a proximate cause of the wife's injuries.
We therefore are of the opinion that the defendant's exception to the decision granting her motion for a new trial should be overruled. As the result of the overruling of that exception will be that she will be entitled to a new trial upon all proper issues in the case and the defendant will be entitled to all proper defenses, irrespective of any rulings made by the trial justice at the trial now under review, we see no sufficient reason for passing upon any of the other exceptions set forth in the defendant's bill of exceptions now before us.
In the action brought by Edward K. Hovas, the defendant's exception to the granting of the plaintiff's motion for a new trial is sustained, and the case is remitted to the superior court for the entry of judgment upon the verdict.
In the action brought by Lucy E. Hovas, the defendant's exception is overruled, and the case is remitted to the superior court for a new trial. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/699318/ | 59 F.3d 1240
Walkerv.Baldor Electric Company
NO. 94-60642
United States Court of Appeals,
Fifth Circuit.
June 13, 1995
Appeal From: N.D.Miss., No. 92-CV-337
1
AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1976279/ | 294 B.R. 703 (2003)
In re BLI FARMS, a Partnership, Richard Jerry Bli, Charlotte Bli, James and Pearl Bli, Debtors.
Bli Farms (consolidated Debtor), Plaintiff,
v.
Greenstone Farm Credit Services, FLCA, and its assignee, USA Farm Service Agency, Defendants.
Bankruptcy No. 01-22628. Adversary No. 02-2098.
United States Bankruptcy Court, E.D. Michigan, Northern Division.
June 26, 2003.
*704 Daniel L. Kraft, The Kraft Law Firm, Lansing, MI, for Debtors.
Jill M. Gies, United States Trustee's Office, Detroit, MI, U.S. Trustee.
OPINION REGARDING COURT'S CONTINUING JURISDICTION OVER THIS ADVERSARY PROCEEDING AND GRANTING PLAINTIFFS' EX-PARTE MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
WALTER SHAPERO, Bankruptcy Judge.
The procedural history of this consolidated bankruptcy case is summarized as follows:
Case Name/Number Description Date
Richard Jerry Bli
Case No. 01-20988 Chapter 11 filing 3/30/2001
James & Pearl Bli
Case No. 01-21070 Chapter 11 filing 4/6/2001
Charlotte Bli
Case No. 01-21069 Chapter 11 filing 4/6/2001
Substantively consolidated case of
Richard Bli, James & Pearl Bli,
*705
and Charlotte Bli Case No. 01-20988 Order substantively consolidating
above 3 Chapter 11 cases 7/12/2001
Bli Farms, a Partnership
Case No. 01-22628 Chapter 11 filing 8/31/2001
Substantively consolidated case of
Richard Bli, James & Pearl Bli, Order substantively consolidating
Charlotte Bli, and Bli Farms; the consolidated case of the individuals
Case No. 01-22628 and the partnership case 10/26/2001
This adversary proceeding was commenced on September 25, 2002. In it, Debtors (including Charlotte Bli), as Plaintiffs, sought declaratory relief in the form of a preliminary injunction and requested an immediate temporary restraining order to declare invalid a foreclosure sale of two parcels of real property owned by Debtor Charlotte Bli. The complaint asks the Court to find that the reinstatement operates to retroactively impose the automatic stay so that the stay would be considered to have been continuously in effect from the date of the prior dismissal date. A foreclosure sale occurred on a date falling between the initial case dismissal and its subsequent reinstatement, and thus the effect of Plaintiffs prevailing would be to arguably void that foreclosure sale. The Court denied Plaintiffs' preliminary injunction request on November 5, 2002. Defendants then filed motions for summary judgment, which the Court granted in favor of Defendant Greenstone on January 16, 2003, and Defendant USA on May 21, 2003. Plaintiffs' appeal of the summary judgment for Greenstone was dismissed by the District Court for want of prosecution. Plaintiffs are now are attempting to appeal the Court's May 21, 2003, order for summary judgment for Defendant USA. Debtors' counsel received that order on or about May 22, 2003. On June 12, 2003, the entire bankruptcy case was dismissed.
Jurisdiction
The June 12, 2003, Order of Dismissal of the entire consolidated bankruptcy case, did not include any language retaining jurisdiction over any pending adversary proceeding or any other matter. A threshold issue is whether this adversary proceeding can or should proceed (and, thus, whether the Court even has jurisdiction to decide the pending motion) due to the dismissal of the bankruptcy case. Case law generally holds that when a bankruptcy proceeding is dismissed, dismissal of all related proceedings automatically results. See, e.g., In re Statistical Tabulating Corp., Inc., 60 F.3d 1286, 1289 (7th Cir.1995) (holding that if the underlying bankruptcy case is dismissed, related adversary proceedings must also be dismissed because "federal jurisdiction is premised upon the nexus between the underlying bankruptcy case and the related proceedings"). If the issues involved in the adversary proceeding are dependent upon the existence of the bankruptcy, i.e., dismissal of the bankruptcy case moots the underlying controversy in the related adversary proceeding, then the adversary proceeding is properly dismissed. Id. (citing In re Income Property Builders, Inc., 699 F.2d 963 (9th Cir.1982)). However, exceptions to this general rule do exist, the most common being if the Court had specifically retained jurisdiction of this adversary proceeding in its dismissal order, which in this case, it did not. Id. at 1289. The Court may also look to other factors, which have been cited as determinative on this issue: "1) judicial economy; 2) fairness and convenience to the litigants; 3) the degree of difficulty of the related legal *706 issues involved." Fidelity & Deposit Co. Of Md. v. Morris (In re Morris), 950 F.2d 1531, 1535 (11th Cir.1992).
In the present case, dismissal of the bankruptcy did not bring about a full resolution of all disputes between the parties in this adversary proceeding; rather, the issue in this adversary proceeding is whether the foreclosure sale was valid, which in turn depends on whether as a matter of bankruptcy law, the reinstatement of the previously dismissed case operates retroactively for automatic stay purposes to the initial dismissal date. In a real sense it is an issue that can stand independently of the pendency of the bankruptcy today. Disposition of that issue can and should proceed irrespective of the recent dismissal, without the existence of the bankruptcy case. To decide otherwise would, among other things, leave the parties likely arguing the same issues in a state court about a pure bankruptcy law issue-a situation while not unheard of and within the legal competence of state courts, is nevertheless one where state courts are often disinclined to act, and the indicated factors militate in favor of this Court retaining jurisdiction by way of an appropriate exception to the general rule. Accordingly, the Court holds that it will retain jurisdiction over this adversary proceeding also keeping in mind that what is involved is a straightforward, discreet, essentially legal (bankruptcy law) question, which, when disposed of, will define the postures of the parties as to the status of the foreclosure involved.
Motion to Extend Time to File Notice of Appeal
Plaintiffs filed a notice of appeal on June 10, 2003, more than 10 days, but less than 20 days, after the May 21, 2003 judgment. Fed. R. Bankr.P. 8002(c)(2), requires a showing of "excusable neglect" to effectuate the tardy filing of the appeal. The Court has considered Plaintiffs' Motion and the oral argument of the parties at the hearing which took place on June 13, 2003.
In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 398, 113 S.Ct. 1489, 1499, 123 L.Ed.2d 74 (1993), the United States Supreme Court examined the standard of "excusable neglect" under Fed. R. Bankr.P. 9006(b)(1), and held that whether neglect can be considered "excusable" is an equitable determination, "taking account of all relevant circumstances surrounding the party's omission." The Pioneer Court specifically articulated the following factors to be among those relevant in this determination: 1) danger of prejudice to the debtor; 2) the length of delay and the potential impact on judicial proceedings; 3) the reason for the delay, including whether it was within the reasonable control to the movant; and 4) whether the movant acted in good faith. Pioneer, 507 U.S. at 395, 113 S.Ct. 1489.
"Neglect" by Plaintiffs' counsel is present here. The question is, however, whether that neglect was "excusable" under the cited standards. Pioneer involved Rule 9006(b)(1). This case involves Rule 8002(c)(2). Both rules utilize the phrase "excusable neglect," and the Court concludes that the analysis should be the same under both of those rules. This Court reads Pioneer to require consideration of all of the relevant facts and circumstances, including, the four factors specifically above referred to in the course of coming to a conclusion that is otherwise equitable, and, in the process, giving such weight to each of the various factors considered as the Court deems appropriate.
In this case, it is conceded by Defendant USA that: there is relatively greater prejudice to the Debtor than to it if the appeal *707 is not allowed to proceed; the length of delay is short; there will be minimal impact on the judicial proceedings (particularly because the bankruptcy case itself is now dismissed). Thus, all of the specific factors mentioned in Pioneer, save one, favor the movant in this case (and the Court does not see the existence of any other circumstances that materially bear on the result). This remaining factor has been referred to as the "law practice upheaval" or "extremely busy" factor. That is a factor which has been emphasized in various cases (and this case as well) that have found the neglect inexcusable, with an overlay in this case to the effect that counsel for Debtors is a sole practitioner and was spending much of his time during the 10-day appeal period in this Court in hearings on various aspects of this very same bankruptcy case. The Supreme Court in Pioneer and later lower court cases in this circuit have given the "law practice upheaval" excuse short shrift, or, in the words of the Supreme Court itself, such is deserving of "little weight." Pioneer, 507 U.S. at 398, 113 S.Ct. 1489.
It is true that the motion to extend the time to file an appeal or the actual notice of appeal itself could have been filed within the 10-day period in this case, notwithstanding how counsel was busy or preoccupied with this case or any other matter, i.e., the filing was within counsel's control and could have been accomplished timely. What saves the day for counsel, however, is that this factor should not be seen or considered as outweighing all of the other indicated factors, all of which favor a finding of "excusable neglect" and an otherwise appropriate equitable conclusion on the facts of this case. To be sure, the Court in Pioneer did mention the fact that the notice of the applicable deadline involved in that case was peculiar and inconspicuous, as part of its rationale, (which is not the case here where the order appealed from was both clear and received shortly after its entry). It is equally clear, however, at least to this Court, that such was neither the fulcrum of the Pioneer Court's conclusion, nor was its mention intended to exclude reliance on, or consideration of, or according appropriate weight to, the other factors the Court articulated as also, and properly, bearing on the ultimate result. The Court therefore concludes the facts of this case do constitute "excusable neglect," and the Debtors' motion to extend the time to file a notice of appeal pursuant to Rule 8002(c)(2) is granted. Accordingly, the Notice of Appeal filed by Debtors on June 10, 2003, was timely filed.
An appropriate order will enter contemporaneous with this Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3995706/ | I concur in the result. Essentially, the issue in controversy is whether Madison Street Hospital shall be operated as "a closed shop." That the issue presents a labor dispute, in contemplation of Rem. Rev. Stat. (Sup.), § 7612-13, is clear. Consequently, under Rem. Rev. Stat. (Sup.), § 7612-1, the court has no power to grant injunctive relief. *Page 196 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714967/ | 567 N.W.2d 314 (1997)
5 Neb. Ct. App. 867
Kim TETERS, Appellee, Cross-Appellant, and Cross-Appellee,
v.
SCOTTSBLUFF PUBLIC SCHOOLS, a political subdivision and nonprofit corporation of the State of Nebraska, Appellee, Cross-Appellant, and Cross-Appellee, and
Kiwanis Club of Scottsbluff, Nebraska, a nonprofit corporation doing business as Camp Kiwanis, Appellant and Cross-Appellee.
No. A-96-063.
Court of Appeals of Nebraska.
July 15, 1997.
*319 Julie A. Moran and, on brief, Brian D. Nolan, of Hansen, Engles & Locher, P.C., Omaha, for Appellant.
Paul W. Snyder, of The Van Steenburg Firm, P.C., Scottsbluff, for Appellee Teters.
John R. Hoffert, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for Appellee Scottsbluff Public Schools.
HANNON, SIEVERS, and MUES, JJ.
HANNON, Judge.
Kim Teters brought this negligence action against Scottsbluff Public Schools (SPS) and Kiwanis Club of Scottsbluff (Kiwanis) for injuries she sustained while serving as a parent volunteer at an SPS sponsored educational and recreational program at Camp Kiwanis in Scottsbluff, Nebraska. A jury found generally for Teters in her action against Kiwanis and awarded her $66,000 for her damages. The district judge, trying the case against SPS under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1991), also found in favor of Teters and held SPS and Kiwanis jointly and severally liable. Both SPS and Kiwanis now appeal. SPS did not join Kiwanis as an appellant, but under Neb. Ct. R. of Prac. 1C (rev.1996), SPS is considered a cross-appellant. We conclude that under the Nebraska Recreation Liability Act, Neb.Rev.Stat. § 37-1001 et seq. (Reissue 1993), Kiwanis is not liable to Teters, and, therefore, we reverse the judgment of the district court. Concerning Teters' action against SPS, we conclude that SPS had no duty to inspect for latent defects, and, therefore, we also reverse the district court's judgment on this matter.
I. TETERS' INJURY
On May 9, 1991, SPS sponsored an overnight "outdoor education experience" at Camp Kiwanis, which is operated by Kiwanis, for sixth grade students attending Bluffs Middle School. During the 2-day experience, the students participated in various recreational activities, including canoeing, archery, and hiking. Teters' daughter attended that event, and in answer to the school's request for parental supervision, Teters also attended. When Teters was injured, she was personally using part of the camp's obstacle course known as the slide-for-life, which is an apparatus that allows the participant to slide down a cable on a pulley. Specifically, Teters was unable to hold onto the pulley upon which she was riding, and as she fell from the pulley, the stitching on the slide's safety harness, which was designed to prevent falls, broke, causing her to fall approximately 15 to 20 feet to the ground. Teters was seriously injured by that fall.
II. FACTUAL BACKGROUND
In 1949, the city of Scottsbluff leased the land upon which Camp Kiwanis is situated to Kiwanis for 99 years. Over the years, the camp has been managed by the Camp Fire Boys and Girls and Kiwanis. Kiwanis reacquired management of the camp in January or February 1991.
One of the two managers of Camp Kiwanis testified that in April 1991, all groups were required to have reservations in order to use the camp and that no groups were allowed to enter the camp for free. The manager did, *320 however, testify that the Kiwanis' camp board permits the American Heart Association to use the camp without charge. James Livingston, who held the office of secretary of the camp board for Kiwanis, testified that the camp was not open to the public without charge, that the camp was fenced, that there were either "no trespassing" or "private property" signs posted, that the fees Kiwanis received were payment for rental of the facility, and that it was the Boy Scouts' obligation to maintain the slide-for-life. Livingston also testified that the Boy Scouts had built the slide-for-life sometime during Camp Fire's management of the camp.
Camp Kiwanis is located near the Riverside Zoo and is partitioned, at least in part, by a river. It is composed of a lodge, an office building, a craft building, and campgrounds with a bathhouse. According to Camp Kiwanis' fee schedule, the four areas can be rented individually or collectively. Use of the entire facility, excluding the office building, for 2 days and up to 100 persons costs $145.
On February 13, 1991, Livingston sent a letter to the curriculum director of SPS, concerning the use of Camp Kiwanis. The relevant portion of the letter is as follows:
I have enclosed the contract information for the Scottsbluff School 1991 Outdoor Education Program. We are happy that you have found this program a worthwhile addition to your curriculum each year and have chosen Camp Kiwanis as your "outdoor Classroom". We would hope that you would find time to visit the Camp when classes are in session and make any suggestions for improvement to the Camp manager. We are undergoing some changes in management in the Camp, however we are confident that everything will be in place for your anticipated dates (May 2/3, 9/10, 16/17, 23/24).
The total cost for use of Camp Kiwanis for the 1991 program will be as indicated below:
Cleaning deposit $20 per session X 4 sessions
(refundable if cleanup is done by the school) $ 80.00
4 sessions of outdoor education at Camp Kiwanis
two days each $580.00
TOTAL $660.00
Please fill in the facility rental contract and return one copy with your 80.00 cleaning deposit (to reserve four weeks) to Camp Kiwanis P.O. Box 294, Scottsbluff, NE 69361. Canoe rental agreements will be sent to you by Campfire.
On February 20, 1991, SPS and Kiwanis entered into a contract entitled "Camp Kiwanis Facility Rental Contract," which reads as follows:
Groups pay the cleaning deposit down when they confirm their reservation. If camp is cancelled four weeks before the event, the cleaning deposit is refundable. If camp is cancelled later than four weeks before the event, the deposit is NOT refundable. Rental fees are due when picking up the keys to open camp. The deposit is returned after the camp has been inspected for damages and for cleanliness and the keys have been turned it.
IT IS HEREBY AGREED THAT
Scottsbluff Public Schools under the supervision of Scottsbluff Public Schools may use Camp Kiwanis on the following dates May 2-3, 9-10, 16-17, and 23-24, 1991.
Both the above named group and the Board of Directors of Camp Kiwanis will abide by the rules, regulations and obligations set forth in the attached materials.
In the "General Rules" section of the attached materials, the following language is found: "NEITHER THE CITY OF SCOTTSBLUFF, CAMP KIWANIS BOARD OF TRUSTEES NOR CAMP MANAGEMENT is liable for accidents, injuries or loss." (Emphasis in original.) Additionally, in the section entitled "Other Information" is the following provision:
The obstacle course has some new equipment that should be checked out by a supervisor before allowing any youth to use it. We are reasonably sure that the course is safe, but it is necessary to instruct youth on how to use the more difficult sections; such as the slide for life, meat grinder, and log swing. The use of *321 the course is without liability to Camp Kiwanis.
(Emphasis in original.) SPS paid Kiwanis the $660 for use of the property for four sessions.
When Teters arrived at Camp Kiwanis on May 9, 1991, the students were already in a meeting in which one of the parent volunteers was demonstrating how to canoe. Teters did not come into contact with anyone representing Camp Kiwanis or SPS. After being briefed on canoeing, the students were broken up into 5 groups of approximately 11 or 12 and directed to the parent volunteer of the individual groups. Teters' daughter was assigned to Teters' group. During the course of the day, each group was to participate in five different activities: canoeing, archery, obstacle course, scavenger hunt, and fishing. A parent volunteer was permanently stationed at the canoeing and archery sites but not at the obstacle course.
In the afternoon, Teters' group took its turn on the obstacle course. Part of the obstacle course included the slide-for-life, a recreational instrumentality composed of two elements. The first element was a 15- to 20-foot-high cable connecting two platforms that participants would walk across. Two additional cables suspended above and to the sides of the cable enabled the participants to balance themselves as they crossed between platforms. In order to prevent the participants from falling if they lost their balance, a fourth cable, the safety cable, was suspended above the other cables. Each participant was secured to the safety cable by what was referred to as a "safety harness." The safety harness, which appears to have been a homemade device, consisted of two automobile seatbelts sewn together. (Exhibit 49 is a photograph of a similar harness revealing that one of the belts contained a buckle with the letters "GM" on it.) One belt, which was placed around the participant's waist, was sewn to a second belt, which had a hook that snapped onto the overhead safety cable. If a participant fell while crossing between platforms, the safety harness would prevent the participant from falling to the ground.
The second element of the slide-for-life consisted of a descending cable that ran from the second platform to a pole located some distance away. A pulley device with handles on both sides was attached to the cable. The participants would stand on the second platform, grab hold of the pulley's handles, and step or jump off of the platform. The pulley and the rider would naturally descend down the inclined cable to the ground. A rope, most likely used to pull the pulley back up to the second platform after someone had ridden it to the pole, hung down from the pulley. A safety cable, which also ran between the second platform and the pole, was situated above and parallel to the descending cable. A participant reaching the second platform from the first platform would need to unhook the safety harness from the first safety cable and then rehook it to the descending safety cable. The hook at the end of the safety harness appeared to allow for quick changes.
When Teters' group reached the slide-for-life, two of the students familiar with the obstacle demonstrated its use for the others. Teters, who had not been instructed on its use, learned how to operate it from watching as well. All of the students in Teters' group, except for her daughter and a friend, successfully completed the slide-for-life, and some students went on the obstacle more than once. Before each student used the obstacle, Teters visually checked the harness. However, none of the students dropped far enough to test the harness' ability to withstand weight.
The two reluctant students told Teters that they would only go on the slide-for-life if she did so first. Teters initially said no, "At that point in time I did not know for sure if I wanted to go on it, whether it would bewhether I was too heavy or that I just didn't know if I wanted to go on it." Teters thought she might be too heavy, weighing 150 pounds, or that she should not go down it because she was an adult. One of the students in her group told her that a teacher, whom Teters knew weighed more than she, had gone down. Teters again inspected the harness before she actually used it and found that it looked the same as when her group *322 first started using it. Teters admitted that she did not see any tears, threads, or loose material during her inspection.
Teters then climbed to the top of the first platform, hooked the safety harness to the safety cable, and walked across the wire to the next platform. Upon reaching the second platform, Teters detached the safety harness from the first safety cable and reattached it to the descending safety cable. Teters then grabbed the pulley and jumped off the platform. According to Teters, one of her hands slipped off the pulley, and as she was falling, she felt the safety harness ripping and tearing. Teters attempted to grab the rope that hung down from the pulley but was unsuccessful. The record is not clear on when in the process of Teters's trip to the ground that the safety harness began to rip. Teters testified that she was grasping the "bar" when the harness started tearing, but she also testified that "when I was slipping and falling the belt started ripping." Nevertheless, the safety harness' belt parted, and Teters fell 15 to 20 feet to the ground. Teters sustained serious injuries as a result of that fall.
At trial, the broken safety harness was not offered in evidence. The camp manager testified that after the accident, he attempted to have the harness repaired but that nobody would agree to do so and eventually it was thrown away. The record reveals that there were two safety harnesses associated with the slide-for-life. Photographs of the second safety harness, which Teters testified was similar to the one she had used, was introduced into evidence. The camp manager testified that in Teters' accident, the stitching holding the two belts together had come undone. There was evidence in the record that the stitching had failed once before when Camp Fire was managing the camp.
It is undisputed that no warnings or instructions were given to Teters concerning the use of the slide-for-life. Additionally, Teters testified that she did not feel that it was necessary to ask anyone for information regarding its use because "I knew whatwe knew what we were supposed to do." Teters further testified that she inspected the harness before each student used it and never observed any loose threads, rips, tears, or unraveling seams.
Kiwanis' motion for summary judgment on the grounds that the Nebraska Recreation Liability Act (Act) barred Teters' action was denied. At the conclusion of evidence, Kiwanis and SPS each moved for a directed verdict. Teters also moved for a directed verdict on the affirmative defenses of SPS and Kiwanis, namely the applicability of the Act. The court denied the motions by SPS and Kiwanis but sustained Teters' motion as to the applicability of the Act. Specifically, the court found:
TheI find that the Camp Kiwanis is closed to the public without prior arrangement and a payment of scheduled fees. It is notit is not a place in the eyes of the law under the Tiece v. City of Omaha case where the Recreational Liability Act would apply. That act seeks to encourage owners of the land to make their land available free to the public for recreational purposes by limiting their liability. I find absolutely no applicability to that provision owned by Kiwanis or the land leased and owned by Kiwanis. I find irreconcilable conflict in the language of the statute relating to rent, but I find the characterization that the Kiwanis chooses to call their fee structure rent not persuasive and that reasonable minds could not differ that this is a fee charged situation. I intend to submit this case to the jury on the legal authorities and the legal theories strictly relating to invitee.
The jury subsequently returned a verdict in favor of Teters and against Kiwanis in the amount of $66,000. The district judge also entered judgment in favor of Teters and against SPS, found that Teters' negligence was 0 percent, and concluded that SPS' and Kiwanis' negligence was joint and several. Both Kiwanis and SPS filed a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict. The court overruled their motions.
III. ASSIGNMENTS OF ERROR
Kiwanis contends that the district court erred in (1) in overruling its motion for summary judgment, (2) overruling its motion for *323 a directed verdict, (3) sustaining Teters' motion for a directed verdict, and (4) overruling its motion for new trial and/or its motion for judgment notwithstanding the verdict. Essentially, Kiwanis' sole argument is that the court erred in failing to apply the Act.
SPS contends that the district court erred in (1) overruling its motion for directed verdict, (2) finding that it was liable for Teters' injury, (3) finding that it was guilty of actionable negligence, (4) failing to find that Teters was contributorily negligent in a degree sufficient to bar her recovery, (5) sustaining Teters' motion for directed verdict on the applicability of the Act, and (6) overruling its motion for new trial and/or its motion for judgment notwithstanding the verdict.
Teters cross-appeals, contending that the Act is unconstitutional. However, this court does not have jurisdiction to determine the constitutionality of a statute. Neb. Const. art. V, § 2; Neb.Rev.Stat. § 24-1106(1) (Reissue 1995). We therefore assume that the Act is constitutional without considering the question.
IV. STANDARD OF REVIEW
In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed unless clearly wrong, and when determining the sufficiency of the evidence to sustain the judgment, it must be considered in the light most favorable to the successful party. McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996). Every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can reasonably be deduced from the evidence. Id.
A jury verdict will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party. World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996).
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. Brown v. Wilson, 252 Neb. 782, 567 N.W.2d 124 (1997).
V. ANALYSIS
A denial of a motion for summary judgment is not a final order and is therefore not appealable. Moulton v. Board of Zoning Appeals, 251 Neb. 95, 555 N.W.2d 39 (1996). However, the motions for directed verdict by SPS and Kiwanis raise the same questionthat of liability. When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law. Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d 778 (1996).
1. NEBRASKA RECREATION LIABILITY ACT
The threshold issue in Teters' action against both Kiwanis and SPS is whether the Act relieves either or both parties of liability. The Act was enacted in 1965 to "encourage owners of land to make available to the public land and water areas for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon." § 37-1001.
If the Act applies, § 37-1002 provides that "an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes." Further, § 37-1003 provides:
[A]n owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby (1) extend any assurance that the premises are safe for any purpose, (2) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property *324 caused by an act or omission of such persons.
Under § 37-1005, an owner of land is liable only:
(1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land. Rental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made by the owner of the land.
If the Act applies, it clearly relieves the applicable defendant of liability. In the instant case, Teters does not claim that her fall was in any way caused by willful or malicious conduct by either SPS or Kiwanis, but, rather, contends that the fee paid by SPS to Kiwanis was a charge, which precludes the applicability of the Act.
Unfortunately, the provisions of the Act are so interrelated that it is difficult to organize the discussion of the several issues presented by the facts of this case by following the organization utilized by the Act. To summarize, the applicability of the Act to Kiwanis and SPS depends upon the resolution of the following issues: (1) Were Kiwanis and SPS "owners" under the Act? (2) Was Camp Kiwanis being used for "recreational purposes"? (3) Was the money paid by SPS to Kiwanis a "charge" or a "rental"? and (4) Was Camp Kiwanis open to members of the public without charge under the holding of McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996)? In order for the Act to apply so as to restrict common-law liability, the answers to the first, second, and fourth questions must be "yes" and the answer to the third question must be "rental."
(a) Were Kiwanis and SPS Owners?
Section 37-1008(2) provides that "the term owner includes tenant, lessee, occupant, or person in control of the premises." Kiwanis, as lessee of Camp Kiwanis under a 99-year lease with the city of Scottsbluff, is clearly an owner under that definition. Whether SPS is a tenant, lessee, occupant, or person in control of the camp is less clear.
The contract between SPS and Kiwanis, entitled "Camp Kiwanis Facility Rental Contract," refers to rental fees being due "when picking up the keys to open camp." It is a very brief contract, but it states that "Scottsbluff Public Schools under the super-vision of Scottsbluff Public Schools may use Camp Kiwanis on the following dates...." Two pages of rules are attached to the short contract. The rules have to do with keeping the camp clean and preserving the improvements and equipment. Thus, while it may be argued that SPS was not a lessee, it is clear from the rental contract that SPS was, at the very least, the occupant or person in control of the camp. Moreover, Nebraska case law establishes that a political subdivision can be an owner under the Act. See Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981). We conclude that both Kiwanis and SPS were owners under the Act.
(b) Was Camp Kiwanis Being Used for Recreational Purposes?
As stated above, in order for an owner to be protected from liability under the Act, the land must be used for recreational purposes. See §§ 37-1002 and 37-1003. Under § 37-1008(3),
the term recreational purposes shall include, but not be limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water-skiing, winter sports, and visiting, viewing, or enjoying historical, archeological, scenic, or scientific sites, or otherwise using land for purposes of the user.
(Emphasis supplied.) This definition is so broad, particularly the emphasized portion thereof, that there can be no serious question that SPS and Teters were using Camp Kiwanis for recreational purposes.
(c) Was Money Paid by SPS to Kiwanis "Charge" or "Rental"?
This question is relevant under two sections of the Act. Section 37-1003 provides that the Act covers "an owner of land who... invites or permits without charge any person to use such property for recreational *325 purposes." Section 37-1005 provides that the Act shall not limit liability "where the owner of land charges the person or persons who enter or go on the land. Rental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made by the owner of the land." "[T]he term charge shall mean the amount of money asked in return for an invitation to enter or go upon the land." § 37-1008(4). Additionally, § 37-1004 provides that "an owner who leases land to the state for recreational purposes shall not by giving such lease ... (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land." With these statutes as background, we now proceed with our analysis of this issue.
The Nebraska Supreme Court has said that the clear meaning of § 37-1005 is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility. Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984). In the instant case, it is undisputed that before any group could enter onto Camp Kiwanis, it had to pay a fee. Individuals not part of a paying group were not invited upon the property. The general public, as opposed to the groups who had paid the fee, was not invited upon the land.
SPS paid $145 for each 2-day stay at the camp. According to Kiwanis' fee structure, the SPS' payment was for use of the lodge, craft building, and campgrounds with bathhouse. Teters, however, was not charged any kind of fee to enter onto the property. The issue now before us is whether the fee paid by SPS constitutes a charge which consequently excludes Kiwanis from the protection of the Act.
Section 37-1005 seems to assume a clear distinction between "rental paid" and "charge." Although the district court found that the two terms were irreconcilable, it still concluded that the fee paid was a charge and that therefore Kiwanis was not protected by the Act. We understand the district court's difficulty in trying to distinguish between the two terms. While the Nebraska Supreme Court has differentiated between fees paid for entry upon land from fees paid for the right to use specific facilities associated with that land, see Garreans, supra (where court distinguished between entry fee and camper-pad fee), it has never specifically distinguished between "rental paid" and "charges."
A statute is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous. State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996); Kuebler v. Abramson, 4 Neb.App. 420, 544 N.W.2d 513 (1996). Because the term "rental paid" is not specifically defined in the Act, we must interpret this phrase, especially as it relates to the term "charge." Interpretation of a statute requires the court to determine and give effect to the intent of the Legislature and the purpose intended to be advanced by adoption of the statute, as can be ascertained from the entire language of the statute, given the plain, ordinary, and popular sense of the statute's language. Kuebler, supra.
The legislative history of the Act throws some light on the intended distinction between the terms "charge" and "rent." The Act is based substantially on a model recreational land use act promulgated by the Council of State Governments (hereinafter model act). See 24 Council of State Governments, Suggested State Legislation 150 (1965). See, also, Annot., Effect of Statute Limiting Landowner's Liability for Personal Injury to Recreational User, 47 A.L.R. 4th 262 (1986); 62 Am.Jur.2d Premises Liability §§ 118 to 135 (1990). The model act uses the term "charge" but not the term "rent." It provides that land leased to the state or a subdivision thereof for "any consideration" shall not be deemed a charge. 24 Council of State Governments, supra at 151. In comparison, Nebraska's Act provides, in place of that provision, that "[r]ental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made by the owner of the land." § 37-1005. Thus, Nebraska's Act enlarges the exception in terms of the organizations that can qualify for protection but limits the exception to those transactions where rent, as opposed to any consideration, is paid.
*326 Nebraska's legislative history sheds some additional light on the issue. The Committee Statement on L.B. 280, 75th Leg. (March 26, 1965), of the Agriculture and Recreation Committee, stated that the proposed bill varied from the model act in that the proposed bill would not provide a limitation on liability for an injury suffered "in any case when a charge is made unless that charge be in the nature of rent." (Emphasis supplied.) The statement explained that the "effect of this act would be to open more lands to recreational activities on either a free or a rental basis."
In Webster's Encyclopedic Unabridged Dictionary of the English Language 248 (1989), only 2 of the 46 definitions of the word "charge" have a meaning possibly applicable to the use intended by the Act: "35. a fee or price charged: a charge of 59 cents for admission," and "36. a pecuniary burden, encumbrance, tax, or lien; cost; expense; liability to pay." The same work defines "rent" as "a payment made periodically by a tenant to an owner or landlord in return for the use of land ... or other property." Webster's, supra at 1215.
The Nebraska Supreme Court has said, "`"A lease is a species of contract for the possession and profits of land and tenements, either for life, or for a certain period of time, or during the pleasure of the parties; and the essential elements of a contract must be present,"' quoting 51 C.J.S. Landlord & Tenant § 202 b. (1947)." Krance v. Faeh, 215 Neb. 242, 245, 338 N.W.2d 55, 57 (1983). Accord Johnson v. City of Lincoln, 174 Neb. 837, 120 N.W.2d 297 (1963).
"A lease of real estate is a hiring or renting of it for a certain time for a named consideration. A tenant rents the land and pays for it either in money or a part of the crops...." Hampton v. Struve, 160 Neb. 305, 311, 70 N.W.2d 74, 78 (1955) (where court was considering whether person who planted crop was tenant or sharecropper). In comparison, someone may be granted a license to enter upon real estate. "A license in respect of realty is an authority to do an act on the land of another without possessing any estate in the land, and is to be distinguished from a grant or demise creating some interest in the property." 53 C.J.S. Licenses § 88 (1987). In view of the relative meanings of these words and the use of the word "lease" in § 37-1004, we conclude that the Legislature intended to draw a distinction between consideration paid for a lease, that is, becoming a tenant on the property with the right of possession, and consideration paid for a license or mere permission to go upon the land.
In the instant case, it is clear that Teters would not have been able to enter onto Camp Kiwanis had SPS not paid the money. Nevertheless, Kiwanis' fee schedule and the "rental contract" suggest that the fee was for rental of various areas of the property rather than for admission. SPS received more than the right to go upon Camp Kiwanis. SPS was the exclusive user of the camp during the time it had reserved the property, and the written contract, which specifically used the term "rent," provided that the camp was under SPS' supervision. Consequently, we conclude that the fee paid by SPS was not a charge but, rather, a rental.
(d) Was Camp Kiwanis Open to Public?
In McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996), the Nebraska Supreme Court held, upon the basis of the purpose of the Act stated in § 37-1001, that the Act did not apply to a student participating in a clinic sponsored by the student's school's athletic program because the property on which the injury occurred, the school's athletic field, did not fall under the category of recreational use of land open to members of the public without charge. In doing so, the court recognized that a landowner need allow only some members of the public, including the plaintiff, to use the owner's land without charge to facilitate the purpose of the Act. See, also, Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993) (Act applied where defendant selectively allowed members of public, including plaintiff, to use land for recreational purposes).
Recently, in Brown v. Wilson, 252 Neb. 782, 567 N.W.2d 124 (1997), the Nebraska Supreme Court concluded that a child who was invited to her friend's home to play was *327 not a member of the "public" under the Act. As stated by the court:
The term "public" connotes "an unexclusive group of persons." 73 C.J.S. Public at 330 (1983). The word "public" has also been defined as "[t]he whole body politic, or the aggregate of the citizens of a state, nation, or municipality[;] ... does not mean all the people, nor most of the people, ... but so many of them as contradistinguishes them from a few[;] ... the people of the neighborhood[;] ... the inhabitants of a community." Black's Law Dictionary 1227 (6th ed.1990).
252 Neb. at 786-87, 567 N.W.2d at 128.
In the instant case, Kiwanis allowed any unexclusive group of persons to use the camp that wished to do so, upon the payment of rent. Thus, with respect to Kiwanis, the camp was open to the public.
Although SPS qualifies as an owner under the Act because it was an occupant or a person in control of the premises, it is not entitled to the protection of the Act because it did not hold the land open to members of the public. For the 2 days that SPS was on the premises, Camp Kiwanis was not open to the "public," as that term is defined in Brown. Only students, teachers, and parent volunteers could enter onto the land. See, e.g., McIntosh, supra (where field was open only to students who were members or who intended to be members of school's football team). Teters, as a parent of one of the attending children, was not a member of the public. If SPS had owned the camp and sponsored the same type of educational and recreational event, it is clear that under McIntosh, it would not be entitled to the protection of the Act. A school or any other similar organization should not, therefore, be able to avoid liability for its negligence merely by renting land from an owner who is entitled to the protection of the Act.
In sum, we conclude that Kiwanis is afforded the protection of the Act but that SPS is not. Kiwanis was an "owner" of land, the land was used for "recreational purposes," the money paid was a "rental" rather than a "charge," and the land was held open to members of the public. SPS, however, did not hold that land open to members of the public, and consequently, it is subject to common-law liability.
2. TETERS VERSUS SPS
Having concluded that SPS is not entitled to the protection of the Act, we now address whether SPS can be held liable for Teters' injury. We first note that Teters does not qualify as an employee of SPS within the Nebraska Workers' Compensation Act. See, e.g., Mesa County Valley Sch. Dist. 51 v. Goletz, 821 P.2d 785 (Colo.1991) (volunteer baseball coach was not employee for workers' compensation purposes); Bd. of Educ. of Alpine School Dist. v. Olsen, 684 P.2d 49 (Utah 1984) (volunteer carpenter in woodshop class was not employee for workers' compensation purposes).
The Nebraska Supreme Court has said, "It is general knowledge that a public school is a tax-supported political subdivision in the business of providing academic and physical fitness and, as such, is liable for negligence under the Political Subdivisions Tort Claims Act." McIntosh v. Omaha Public Schools, 249 Neb. 529, 536, 544 N.W.2d 502, 507 (1996). For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from such undischarged duty. Tiede v. Loup Power Dist., 226 Neb. 295, 411 N.W.2d 312 (1987). We note that while some jurisdictions impose upon employers different standards of care if the individual is a gratuitous employee or a volunteer, see,30 C.J.S. Employers' Liability § 16 (1992); Milbank Mut. Ins. Co. v. Dairyland Ins. Co., 373 N.W.2d 888 (N.D.1985) (which has statute defining gratuitous employee), Nebraska makes no such distinction.
Recently, in Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996), the Nebraska Supreme Court abrogated the classifications of invitee and licensee in favor of a standard of reasonable care for all those lawfully on the premises of another. However, the Heins rule is prospective in application and thus without effect in the instant case.
*328 An invitee is a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. Heins, supra. Landowners owe invitees the duty of reasonable care to keep the premises safe for the use of the invitee. Id. A business visitor is considered an invitee, and thereby receives a higher degree of care, reasonable care, ostensibly because he or she conveys some benefit upon the landowner. Id.
A licensee is a person who is privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent, but who is not a business visitor. McIntosh, supra. An owner or occupant of premises owes only the duty to refrain from injuring a licensee by willful or wanton negligence or designed injury, or to warn the licensee of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee, who is required to exercise ordinary care. Heins, supra.
The distinction between invitees and licensees rests on the purpose for which the invitation was extended. Palmtag v. Gartner Constr. Co., 245 Neb. 405, 513 N.W.2d 495 (1994). If it is an invitation for personal pleasure, convenience, or benefit of the person enjoying the privilege, the person receiving it is a licensee, but if the invitation relates to the business of the one who gives it or for the mutual advantage of a business nature for both parties, the party receiving the invitation is an invitee. Id.
In the instant case, Teters responded to SPS' request for parent volunteers to supervise and provide assistance with the sixth grade's overnight trip to Camp Kiwanis. The invitation was an express invitation of a business nature. Thus, Teters was an invitee.
A possessor of land is subject to liability for injury caused to a business invitee by a condition of the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized the condition involved an unreasonable risk of harm to a business invitee; (3) the defendant should have expected that a business invitee such as the plaintiff either (a) would not discover or realize the danger, or (b) would fail to protect himself or herself against the danger; (4) the defendant failed to use reasonable care to protect the plaintiff invitee against the danger; and (5) the condition was a proximate cause of damage to the plaintiff. McIntosh, supra. This is essentially the same duty of care owed by an employer to an employee. See Grote v. Meyers Land & Cattle Co., 240 Neb. 959, 485 N.W.2d 748 (1992). Moreover, the Nebraska Supreme Court has stated: "A landowner should not be held liable for defects which an investigation might reveal unless the situation suggests an investigation, and the facts indicate to a reasonably prudent man the likelihood of existence of some hidden danger to persons lawfully on the premises." Kozloski v. Modern Litho, Inc., 182 Neb. 270, 274, 154 N.W.2d 460, 463 (1967).
The instant case presents us with the rare situation where the business invitee of a temporary lessee is attempting to hold the temporary lessee liable for an artificial condition present on the owner/lessor's property. It is undisputed that SPS neither created nor knew of the condition of the slide-for-life's safety harness. Therefore, SPS' liability is dependent on its duty to exercise reasonable care, which can only be found in a duty to discover a patent defect or flaw in the safety harness and in SPS' failure to fulfill that duty.
According to the rental contract, SPS only had use of Camp Kiwanis for four 2-day stays but was not in continuous possession of the camp between those stays. At trial, Teters testified that she visually inspected the safety harness before each student used it as well as before she used it. Such inspections revealed no patent defects. The question now before us is whether SPS, as temporary lessee, had a duty to inspect the slide-for-life for latent defects.
In Greene v. Seattle Athletic Club, 60 Wash. 300, 111 P. 157 (1910), the owner of an *329 armory leased the property to a corporation for only one evening to hold an exhibition of foot races. The corporation charged an admission fee. During one of the races, a balcony, where the plaintiff and others were watching the races, collapsed. Prior to the races, the corporation had observed in a general way the arrangement of the room in which the exhibition was given but had not made a detailed inspection of its construction. The plaintiff then brought suit against the corporation for damages. At the close of the plaintiff's evidence, the court entered a judgment of nonsuit.
On appeal, the issue was whether the corporation had a duty to have the building inspected by an architect or structural engineer. In holding that the plaintiff did not have a cause of action, the court stated:
The drill room was constructed by the state for public exhibitions. The seating capacity of the gallery was not wholly taken. The gallery was not overcrowded. The railing gave way on account of a latent structural defect, and not because too many people had been admitted. The railing had the appearance of being safe. The respondent, upon the facts stated, was warranted in relying upon its appearance. It had a right to assume that it was structurally sound.
Greene, 60 Wash. at 309, 111 P. at 160. With respect to the corporation's duty as temporary lessee, the court stated:
Viewing the case from the standpoint of the conduct of the average prudent man, we cannot escape the conclusion that there was no duty of further inspection upon the respondent. The defect was not patent. It took the building for one night only, and it had a right to rely upon its apparent safety.
Id. at 305-06, 111 P. at 159.
The court in Oxford v. Leathe, 165 Mass. 254, 43 N.E. 92 (1896), also addressed the duty of a temporary lessee. There, the owner of a rink leased the rink to the lessee for 4 days to conduct horse-training exhibitions. On the eighth day, the lessee was still holding over pursuant to an oral agreement when a platform collapsed, injuring the plaintiff. The plaintiff then brought an action against the owner rather than the lessee. With respect to the owner's liability, the court stated, "At the same time, the short and interrupted character of the occupation allowed to [the lessee] made it obvious that the safety of the building must be left mainly to the [owner]." Oxford, 165 Mass. at 255, 43 N.E. at 93. See, also, Annot., Amusements-Injury to Patron, 106 Neb. 333, 183 N.W. 567, 22 A.L.R. at 628 (1921).
Based on Greene and Oxford, we conclude that SPS did not have a duty to inspect the slide-for-life for latent defects. SPS was only in possession of Camp Kiwanis for a very short period of time, and the slide-for-life had the appearance of being safe. Moreover, Teters herself repeatedly inspected the safety harness without finding any defects. SPS had a right to rely upon the obstacle's apparent safety and assume that it was structurally sound. It naturally follows that SPS did not have a duty to warn users of latent defects. In the absence of such duties, there is no ground upon which to base liability. We conclude that the evidence would not support a finding that SPS did not create or know of the condition, nor did it fail in any way to exercise reasonable care to discover the condition, at least one of which is a predicate to establish the first of the five elements that a business invitee must prove in order to impose liability on a possessor of land. See, e.g., McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996).
VI. CONCLUSION
We conclude that Kiwanis was immune from liability under the Nebraska Recreation Liability Act and that SPS, as temporary lessee, did not owe Teters a duty to inspect for, or warn of, latent defects. Because a latent defect in the safety harness was responsible for Teters' injury, SPS cannot be held liable. The judgment of the district court is therefore reversed as to both SPS and Kiwanis.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3985662/ | I concur. The real defense to this suit lies in the fact that the Federal court, on condemnation proceedings by the Kennecott Copper Company, permanently restrained and enjoined the plaintiff and the defendant from hindering or interfering with the occupation of the Kennecott Company to which the 1 Federal court through power of eminent domain gave the surface rights. The plaintiffs were made party defendants in that suit. The effect of that judgment was to cut off access to tunnel No. 8 and made it impossible for the defendants to permit entry by the plaintiffs and therefore useless for the power to furnish further supplies, powder and tools for the prosecution of the work. It is this defense of excusable breach as it is sometimes called that defeats the right of plaintiffs to recover. The fact that the Federal court found the interest of plaintiffs in the so-called "royalty lease" valueless simply is some evidence of that fact but whether it has the strength of res adjudicata not being between the same parties although all these parties were in as condemnees in that suit, need not be determined.
There was no showing in this suit that the defendants had connived with the Kennecott Copper Company nor yielded to its condemnation suit in bad faith in order to squeeze out the plaintiffs which had it been the case might have given rise to an action for the recovery of the reasonable 2 value of the work and labor they put into the 579 feet. I fail to see why the lower court gave plaintiffs even nominal damages of ten cents and why, after it recited that an injunction prevented both plaintiffs and defendant from using the surface right (which in turn prevented access to tunnel No. 8), it should not have found that the "lease" was virtually terminated by circumstances beyond the control of both plaintiffs and defendants and that plaintiffs' damages were already determined in the condemnation suit and that such was a valid defense on part of the defendant. But since there was no cross appeal, the judgment should be affirmed. *Page 172 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1058506/ | 146 S.W.3d 469 (2004)
STATE of Tennessee
v.
Gregory ROBINSON.
Supreme Court of Tennessee, at Jackson.
Heard June 2, 2004 Session.
September 28, 2004.
*473 Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Joseph F. Whalen, Associate Solicitor General; William L. Gibbons, District Attorney General; and Patience R. Branham and Paula Wulff, Assistant District Attorneys General, for the appellant/appellee, State of Tennessee.
Joseph S. Ozment and Steffen G. Schreiner, Memphis, Tennessee (at trial); and Edmund L. Carey, Jr., Nashville, Tennessee, and Robert C. Brooks, Memphis, Tennessee (on appeal), for the appellee/appellant, Gregory Robinson.
Heard in Nashville June 2, 2004.
OPINION
FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
*474 We granted the State's application for permission to appeal to determine whether the Court of Criminal Appeals erred by reversing the defendant's conviction for premeditated first degree murder and his sentence of death. Upon review, we hold that the Court of Criminal Appeals erred in reversing the defendant's conviction and sentence. In particular, we conclude that the trial court did not err by failing to instruct the jury on facilitation and solicitation or by permitting the medical examiner to display the victim's cleaned and reconstructed skull as a demonstrative aid during his testimony; that the prosecution did not present inconsistent theories and evidence in the separate trials of the defendant and co-defendant Prentiss Phillips; and that the sentence of death is not disproportionate considering the circumstances of the crime and the defendant. Having reinstated the defendant's conviction and sentence, we have also reviewed and considered all other errors alleged by the defendant and conclude that none warrants relief. With respect to issues not herein specifically addressed, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part, affirmed in part, and the judgment of the trial court is reinstated.
I. Factual Background
The defendant, Gregory Robinson, was convicted by a Shelby County jury of the premeditated first degree murder and especially aggravated kidnapping of Vernon Green. Proof presented at trial established that on the afternoon of April 30, 1997, a squabble between two small children in the Hurt Village Apartments in North Memphis led to an argument between the mothers of these children, which escalated into a fight, including gunfire, between the women's boyfriends, members of rival Memphis gangsthe Gangster Disciples and the Vice Lords.[1] As a result of this fight, the Hurt Village Gangster Disciples called an "aid and assist" meeting, and Memphis-area Gangster Disciples congregated at an apartment in the Hurt Village complex for this meeting. Although the victim was not a gang member and had not been involved in the earlier fight, he was seen near the apartment where the aid and assist meeting was being held. When a gang member accused Green of acting as a lookout for the Vice Lords, the defendant instructed other gang members to "snatch him up" and bring him to the apartment. For one and one-half to two and one-half hours, the defendant, along with other gang members, beat and interrogated Green. Eventually Green was taken from the apartment by six gang members and shot to death in Jessie Turner Park.[2] Green's body was discovered in the park between 5 and 5:30 a.m., on May 1, 1997, by members of a local walking club, who called the police. When Officer Alvin Peppers arrived at the scene, he found the victim's body lying face down in a prone position. Officer Peppers explained that he could not identify the victim's features, such as eye color, because the "face of the body was so mutilated that there was nothing that we could identify." Officer Peppers found no identifying objects on the body, such as a wallet or jewelry, but he recovered a numbered dry cleaner's tag from inside the victim's clothing that apparently was helpful in identifying the victim. Two live .45 caliber bullets, two .45 caliber bullet casings, and *475 one .20 gauge shotgun shell casing were found within a five foot radius of the victim's body. The following complicated and detailed recitation of the testimony at trial is necessary to a full and proper consideration of the issues presented in this appeal.
Several former gang members testified about the events surrounding Green's kidnapping and murder. Two of these testified for the prosecution. The first, Christopher James, known as "Big Chris," testified for the prosecution. James had been a Gangster Disciple for three or four months on April 30, 1997. Around 5 or 6 p.m. on April 30, 1997, James and fellow Gangster Disciples, Jarvis Shipp, known as "J-Roc," and two other gang members called "Popcorn," and "Steve," witnessed a fight between Shipp's girlfriend and the girlfriend of "Snoop," a Vice Lords gang member. Later, as James, Shipp, and Popcorn were walking toward the apartment of Shipp's girlfriend, Snoop approached them and begin swinging at Shipp. After Shipp and Snoop began fighting, another Vice Lord drew a gun. At this point, James and Popcorn fled, but a bullet grazed Popcorn's hand as they were running from the scene. They arrived from the fight at the Hurt Village apartment of sisters Natalie, Nichole, and April Black around 8 p.m. Shortly thereafter, Shipp, along with fellow Gangster Disciples Prentiss Phillips, James Lee White Carradine, known as "Thug Life," and "Steve," and "Chuck" arrived at the apartment. Shipp was angry and decided to "call some more Gangsters over there to Hurt Village." An aid and assist meeting was called, and according to James, twenty or thirty additional Gangster Disciples from all over Memphis arrived at the apartment for the meeting.
After their arrival, Phillips came inside the apartment and said that Vernon Green was outside "watching out at the apartment." One of the later arriving Gangster Disciples, whom James identified as the defendant, instructed Shipp and three other Gangster Disciples to "go snatch up" Vernon Green. James said Shipp and the others followed the defendant's instruction without hesitation. Green arrived at the apartment around 10 p.m., escorted by "[t]wo disciples in front [and] two disciples in the back." Green stood in the middle of the floor as the defendant asked Green if he had been outside watching for the Vice Lords. The defendant then hit Green in the face, struck Green numerous times, both with his fists and with a broom stick, and then pushed Green onto the couch. James, who had lived in the Hurt Village apartments and known Green for seven years, described Green as the neighborhood comedian and stated that Green had not been a gang member and had not been involved in the fight earlier in the day.
After Green was beaten, he was taken upstairs by "two other guys." Green remained upstairs for thirty to forty-five minutes. During this time, James was "jumped on" and "beat up" downstairs by six Gangster Disciples because he had not helped "Jarvis and them fight." James testified that Phillips came out of the kitchen, where he had been meeting with Shipp and Kevin Wilkins, known as "Big Folk," "cut on the radio and started picking out six people," who then beat James for fleeing rather than aiding Shipp during the fight with Snoop. James testified that Phillips, not the defendant, selected the gang members who beat James and that the defendant had been upstairs at this time.
Green was escorted downstairs after James was beaten, but a short time later, Green was taken from the apartment. Before Green left the apartment, James saw the defendant, Shipp, and Phillips talking *476 together in the kitchen and overheard the defendant say, "Y'all know what to do." James believed this statement meant "[t]hey [were] going to kill [Green]." James recalled that the victim had been held at the apartment two or two and one-half hours. When asked if the victim said anything during this time, James said the victim "told Prentiss [Phillips], `tell them folks to stop.'" When Green was escorted from the apartment by Shipp, Wilkins, Charles Golden, known as "Fufu," and Antonio Jackson, Green had been wearing a black shirt, black pants, and black shoes. Green's black shirt had been pulled over his head so that Green was unable to see or use his arms to resist. As this group left the apartment, James overheard the defendant again say, "Y'all know what to do." James also testified that the defendant at one point aimed a nine millimeter gun at his face, while threatening that the "same thing" would happen to James if James ever said "something about it." James believed the defendant's comment meant "[t]hey going to kill me too." After Green and the other gang members left the apartment, Phillips and "Steve" walked James home in the early morning hours of May 1, 1997.
James admitted that he had never seen the defendant before April 30, 1997, and that the defendant had not been a member of the Hurt Village Gangster Disciples. James maintained, however, that the defendant had been a member of the Memphis Gangster Disciples and had been present at the Hurt Village apartment on April 30, 1997.
Defense counsel on cross-examination questioned James regarding a statement he made to the police on May 8, 1997, one week after these events occurred. In that statement, James informed the police that "[he] saw Anthony, Jarvis Shipp, Shaun, and a big heavy-set guy that I don't know his name, Antonio Jackson, and Big Folk" kill Green. (Emphasis added.) In his May 8 statement James also said that "Shaun" instructed Shipp and three other gang members to "go snatch Vernon Green up" and that "Shaun" questioned and hit Green at the apartment. In his May 8 statement James provided the following account of the events:
J-Roc, MacKaos, Shaun, and Low-Down went into the kitchen for a private meeting. And I heard them talking softly to each other for about five minutes. And then J-Roc and Shaun came out of the kitchen. And then MacKaos and Low-Down came out of the kitchen. And MacKaos said, you all need to take care of this and told Jarvis, what you-all do now is personal. Then MacKaos and Low-Down left.
Also in his May 8 statement, James indicated that "Shaun came up to me and said I better not say nothing to nobody, and if you think this was something let us find out that you said something about this." Although on May 8, 1997, James told the police that many gang members beat the victim, James testified at trial that only the defendant beat Green. Finally, in this May 8, 1997, statement James claimed he
heard three cars start and heard at least six doors close. And after they left-and Prentiss had a gun in his right hand and said, if anyone say anything about this they will be dealt with. And then he said, all the gangsters in here keep this on the 1919. And after that Prentiss and Steve escorted me to my house.
When asked by police on May 8 if he had anything else to add to his statement to aid the investigation, James had replied: "All I can say is that Vernon was a good person and didn't need to be killed by anyone." When defense counsel pressed James to explain why he had mentioned *477 the name "Shaun" and had not once mentioned the defendant's name in his May 8, 1997, statement, James replied:
Man, hold up man. When Vernon was getting beat, man, Vernon the one who called that man Shaun. So I went by what Vernon called him.
James admitted he had not previously provided this information to police and also conceded he had not previously indicated the defendant threatened him while holding a nine millimeter gun to his head. Although James had consistently "given the same name for everybody else that did everything that night," the actions he attributed to the defendant at trial had been attributed to "Shaun" in his May 8 statement. In response to questions from defense counsel, James indicated that Phillips was "coordinator" and Shipp "chief of security" of the Hurt Village Gangster Disciples. James did not attribute a rank to the defendant, however.
On re-direct examination, James clarified his prior testimony and May 8 statement, explaining that many gang members beat the victim, but the defendant hit Green first and no other gang member beat Green at the same time as the defendant. James also explained he had not known the gang members present on April 30, 1997, by their legal names and had referred to them by their street names. James said he had never seen the defendant before that night, had not known the defendant's name, and had referred to the defendant as "Shaun" in his May 8 statement because he heard Green refer to the defendant as "Shaun." James explained that, when the police showed him a photographic array shortly after Green's kidnapping and murder, he selected the defendant's photograph but referred to the person in the photograph as "Shaun."
James maintained the accuracy and truthfulness of his May 8 statement and claimed its only error was his use of the name "Shaun" when describing the defendant's actions. James claimed he had not learned the defendant's correct name until the first day of trial. James reaffirmed his direct testimony and reiterated that the defendant gave the order to "snatch up" Green; that the defendant beat Green; that the defendant met with Phillips, Shipp, and Wilkins in the kitchen; and, that the defendant twice commented,"Ya'll know what to do." On re-cross-examination, defense counsel pointed out that, despite his proclamation to the contrary, James knew the defendant's correct name prior to trial and had used the defendant's correct name when previously testifying. Sergeant William Ashton of the Memphis Police Department corroborated James's testimony regarding the photographic array. Sergeant Ashton recalled that James identified the defendant's photograph from the array, but referred to the person in the photograph as "Shaun."
Testifying next for the prosecution, Jarvis Shipp, known also as "J-Roc," admitted he had been a Gangster Disciple and that he had held the "chief of security" rank in the Hurt Village section of the gang. Shipp corroborated James's testimony concerning the squabble between the children that led to the argument between the children's mothers that eventually escalated to the altercation between Shipp and Snoop. Shipp also corroborated James's testimony concerning James and Popcorn fleeing the fight and the gunshot injury to Popcorn.
When he arrived at the Hurt Village apartment of Natalie, Nichole, and April Black at about 9 p.m., Shipp saw James, Popcorn, Phillips, Isiah Triplett, Sepacus Triplett, Steve Hardin, and James Lee White Carradine, all members of the Gangster Disciples. The Black sisters also were present, but Phillips, the "coordinator" of the Hurt Village Gangster Disciples, *478 ordered the Black sisters upstairs. After they complied, Phillips called an aid and assist meeting, stating that the Gangster Disciples were going to "step to another level" and retaliate against the Vice Lords. Shipp believed Phillips meant the Gangster Disciples were going back to hurt all or some of the Vice Lords as revenge for injuring Popcorn.
Shipp explained how the Gangster Disciples were organized into sections throughout Memphis. In addition to the Hurt Village section, where Phillips was the "coordinator" and Shipp the "chief of security," the Gangster Disciples had sections in Mitchell Heights, South Memphis, Scutterfield, Frayser, Watkins Manor, Binghampton, Hyde Park, Douglass, Riverside, Castalia, Whitehaven, Tulane, and Westwood. According to Shipp, "T-Money," who lived in Chicago, was the "head guy over the whole entire city" of Memphis. Kevin Foley, also known as "Kaos," was the number two person over the entire city. However, because "T-Money" was out of town, "Kaos was like the governor" over Memphis. According to Shipp, the defendant was from the Mitchell Heights section of the gang and "at that particular time he was a active chief of security over the entire city of Memphis." As such, the defendant ranked just below Kaos, and because T-Money was out of town, the defendant effectively ranked second in the Memphis Gangster Disciples. As chief of security for Memphis, the defendant ensured that all section security chiefs were organized and gave orders when Kaos was not around to do so.
Shipp and Phillips followed the chain of command when calling the aid and assist meeting on April 30, 1997, calling first Kaos then the defendant. After these calls were made, forty to eighty Gangster Disciples from all over Memphis arrived at the apartment, and many of them were armed with handguns. After their arrival, Phillips ordered James Lee White Carradine and another person upstairs to prevent the Black sisters from coming downstairs or leaving the apartment.
Kaos arrived at the apartment about 9:30 or 9:45 p.m. The defendant arrived shortly thereafter and immediately asked Shipp, "Why aren't your guys on point?" Shipp said the defendant meant, "Why aren't your guys on security, watching out, looking?" The defendant directed Shipp, as "the security of Hurt Village" to determine the identity of the "guy peeping around the corner." After escorting the defendant inside the apartment, Shipp left to determine the identity of the person. When Shipp returned a short time later and advised the defendant that the person was Vernon Green, the defendant inquired, "Who is Vernon Green?" Phillips and others "started screaming" that Green was a Vice Lord. The defendant then ordered Shipp and five other gang members to place Green under "GD arrest." According to Shipp, the defendant meant gang members were to detain and hold Green against his will.
After locating Green, Shipp told Green "my brothers, the Gangster Disciples, wanted to speak with him," and escorted Green inside the apartment. After directing Green into the dining room, the defendant asked Green if he was a Vice Lord. When Green replied, "no," the defendant asked Green if he knew where the Vice Lords were located. When Green again replied "no," the defendant, Phillips, and Wilkins began punching, hitting, and physically abusing Green. After Green fell to the ground, Shipp asked the others gang members to "hold up" on beating Green. Shipp then assured Green "we weren't going to do nothing to him, we just wanted to know" the location of the Vice Lords. Green then said the Vice Lords were at a *479 particular location, so the defendant ordered Shipp, and five other gang members to verify Green's information. About halfway to this location, Shipp and the others met a woman "who considered herself a sister of the Gangster Disciples." She told them the Vice Lords were "running down Danny Thomas."
Shipp and the others returned to the apartment, and when they arrived, the victim was sitting in a corner, away from the couch. According to Shipp, Green had been forced to sit in the corner because Green "had defecated on himself." Shipp and other gang members ridiculed Green for doing so. After learning the Vice Lords had not been at the location Green provided, the defendant ordered Sepacus Triplett and another gang member to take Green upstairs. Shipp went upstairs as well and saw Green lying on the floor of a bedroom with gang members standing around him pointing guns at his head and threatening to kill him. Shipp said the Black sisters were in another upstairs bedroom with a box springs mattress across the door to prevent their departure. When Shipp heard loud music and returned downstairs, Phillips and the defendant were selecting gang members and instructing them to form a circle. Phillips "told James to get in the center of the circle." Shipp said Phillips was in charge of the situation, but the defendant was advising on the proper procedure because Phillips had never before "put a brother in violation." When asked which of the two had the higher rank, Shipp replied: "Basically, you'll say Gregory Robinson." However, Shipp qualified his reply by pointing out that these events occurred in Hurt Village, Phillips's "turf." Shipp agreed that the Gangster Disciples are structured somewhat like the United States, with a national leader and local leaders.
After James moved to the center of the circle, the defendant and Phillips announced James had "six minutes six seconds, no cover up," meaning James would be beaten for six minutes and six seconds by six people.[3] Gangster Disciples referred to this punishment as "a pumpkin head." According to Shipp, James was placed in "retirement" or "on hold" for six months and told not to consider himself a Gangster Disciple. Phillips and another individual, whom Shipp did not know, then escorted James out of the apartment.
After James left, Shipp told "the guys to bring [Green] downstairs." Green arrived downstairs with a t-shirt over his head to obstruct his sight and to restrict his hands so that he could not break away or defend himself. Shipp testified that the defendant, Phillips, and Wilkins each individually spoke to Kaos on a cellular telephone, during "one long continuous conversation." Shipp reported that after hanging up, "[t]hey said Kaos said, `take him fishing.'" Shipp, who was not a part of the conversation with Kaos, understood this meant they were to "take [Green] way out somewhere out of the district, rough him up a little bit by physical abuse, and let him get back the best way he could." Shipp then heard the defendant direct Phillips and Wilkins to select six men to take Green to a destination. Wilkins picked Antonio Jackson, a man known as "Paris," and another individual Shipp did not know. Phillips selected Shipp, Charles Poole, and a man known as "MacEndo." Shipp testified that Wilkins, Jackson, Paris, and MacEndo were from Mitchell Heights. Shipp was from *480 Hurt Village, and Charles Poole was from Scutterfield.
Wilkins left with the six men selected, and Phillips remained at the apartment. The men drove in two separate cars to Bellevue Park. When Green pulled the shirt from his eyes and realized he was in a dark area, he began pleading with them, saying numerous times, "just let me go, man, I'm not going to say nothing, please, just let me go." Shipp, Paris, Poole, and MacEndo physically carried Green to the top of a hill and dropped him onto the ground. Wilkins "suggested" the other men stand a few feet away from Green. Shipp testified that although Wilkins was not superior in rank to the defendant, Wilkins was the "big head" who was giving directions at the park. Wilkins kicked Green in the side and asked Green if he had any last words. Shipp then heard a gun being cocked and saw Jackson fire the gun. Green was lying face down, and bullets struck his lower back and buttocks. Green began gasping for breath and saying that he had been hit, that he was dead, and that he was not going to say anything. When Jackson remarked to Wilkins that the buckshot were not affecting Green, Wilkins asked Paris for his chrome plated automatic pistol. Wilkins handed the pistol to Jackson, who shot Green in the head. The gun jammed, but Jackson adjusted it and fired again. The gang members then fled the scene and later met at a gas station on South Parkway, where Wilkins advised them to "take the streets, act normal." Wilkins gave them marijuana to "calm us down." They met again at an apartment in the Mitchell Heights area. Shipp later learned this apartment belonged to "Fufu" Charles Golden.
Two days after the murder, Phillips told Shipp to take a "six day vacation." Phillips called the defendant, and the defendant arrived and drove Shipp, his "baby's mother" and his children to a local motel. The defendant told Shipp not to answer his pager or use the telephone. However, Shipp answered a page from Phillips and learned that the police were looking for him. Shipp then paged the defendant, who immediately returned Shipp's call but reprimanded Shipp for being "a knucklehead" who disobeyed orders not to use the telephone or answer his pager. After again telling Shipp not to answer the telephone or respond to his pager, the defendant assured Shipp that he, or "other brothers," would be dropping by to check on Shipp. Three days later, the defendant sent "a guy by the name of Crenshaw and two more younger guys" to pick up Shipp and his family at the motel.
At the conclusion of his direct examination testimony, Shipp claimed that he had been threatened by Gangster Disciples for being a "snitch" and explained that he had sought protective custody because he feared he would be unable to survive in the general jail population, which included many Gangster Disciples. Shipp declared he had given truthful testimony and denied the State had offered any deals, promises, or representations in exchange for his testimony.
On cross-examination, Shipp admitted that he had given a lengthy statement to the police on May 27, 1997, and had not once mentioned the defendant's name, even though he had mentioned numerous Gangster Disciples, including Kaos, Phillips, Jackson, and Wilkins. Shipp admitted he had identified numerous Gangster Disciples when shown photographic arrays, including Kaos, Phillips, Wilkins, Jackson, Carradine, Golden, "Smash," Anthony, Johnny, and Sepacus Triplett, but had failed to identify the defendant when given the opportunity.
Although Shipp indicated in his May 27, 1997, statement that Kaos was the governor *481 of Memphis, contrary to his trial testimony, in this same statement Shipp claimed that Wilkins, from the Mitchell Heights area, was the chief of security for North Memphis, that Phillips outranked Wilkins, and that Jackson was chief of security of Scutterfield. Furthermore, in his May 27, 1997, statement Shipp indicated that Phillips, not the defendant, instructed him to arrest Vernon Green; that Phillips, not the defendant, beat the victim; that Phillips, not the defendant, instructed gang members to take Green upstairs after he had been beaten; and that Phillips, not the defendant, decided Green's fate because Phillips and others assumed Green would "put the law in [Phillips's] business or [Green] would get the Vice Lords to retaliate against us."
On cross-examination, Shipp admitted that Shaun Washington, a Gangster Disciple from Mitchell Heights, had been present at the apartment on April 30, 1997, although he had failed to mention Shaun Washington in his May 27, 1997, statement to the police or in his direct testimony. Shipp testified that some Gangster Disciples have gold teeth, that the Gangster Disciple symbols include the six-point star, the pitchfork, the heart with wings, a crown, a "devil tail," and the world with a sword piercing it. Shipp claimed that he had never heard the phrase "take him fishing" before April 30, 1997, but he maintained he had believed the phrase meant they were to drive away and leave Green to make his own way home. Shipp admitted there had been no discussion at the park about whether or not they were to kill Green. Shipp also admitted that he had been acquainted with Green because he had dated Green's sister. Shipp conceded that he had been charged with first degree murder after giving the May 27, 1997, statement, and that the prosecution had filed a notice of intent to seek the death penalty. When asked if he expected any consideration from the prosecution in exchange for his testimony, Shipp responded, "Yes, because the simple fact I'm facing the death penalty." When asked to clarify, Shipp stated, "If it's in the progress. If it's in the will." When defense counsel commented, "You're not up here testifying for your health, are you, sir?" Shipp responded, "I'm up here testifying to tell the truth on my behalf and on behalf of the victim's family."
On re-direct examination, Shipp confirmed that he had identified only one Gangster Disciple, Kaos, who outranked the defendant, and Shipp said he did so because "Kaos had told on" him. Shipp pointed out that the defendant, not Kaos, had taken him to a hotel and advised him how to protect himself. Shipp also claimed he had been afraid to identify the defendant because the defendant was "not playing with a full deck." Shipp maintained he had told the truth at all times, including his May 27, 1997, statement, except for his failure to identify the defendant.
On re-cross examination Shipp emphasized that he had implicated Kaos because "[e]veryone knew that Kaos was a snitch." Shipp conceded he had initially implicated and identified Phillips, even though he had testified that Phillips and the defendant were "kind of on the same level" in terms of authority. Shipp admitted he had never implicated the defendant prior to testifying at trial and acknowledged that he hoped to avoid the death penalty by testifying against the defendant.
Also testifying for the prosecution, Dr. Thomas Deering, the forensic pathologist and assistant Shelby County medical examiner who performed Green's autopsy, explained that Green had a shotgun wound and two gunshot wounds to the right side of his head, a shotgun wound across his *482 upper back, and a shotgun wound to his left buttock. The shotgun wound to the right side of Green's head lacerated his brain and fractured the base of his skull and would have itself been fatal. Gunshot wound B, near Green's right temple, also fractured Green's skull and struck his brain and was alone "a severe if not fatal wound." Gunshot wound C began at Green's right temple, fractured his skull, broke his jawbone on the right, traveled through the back part of his tongue, and injured muscles in the right side of his neck. The shotgun wound to Green's upper back caused superficial scraping and would not have produced death in and of itself, although it would have been painful. The shotgun wound to Green's left buttock fractured the lower part of his back bone and his coccyx and also lacerated his rectum and bladder. Dr. Deering opined that the victim was alive when the various wounds were inflicted.
Dr. Deering cleaned and reconstructed the victim's skull to determine the order of the gunshot wounds. After examining the reconstructed skull and considering the level of bleeding at each wound, Dr. Deering determined that the shotgun wound to the right side of Green's head was inflicted first, that gunshot wound B was inflicted second, and gunshot wound C was next inflicted, in almost the same location as gunshot wound B. Although he could not determine if the shotgun wounds to Green's back and buttocks preceded the wounds to his head, Dr. Deering testified that the shotgun wound to Green's buttocks had a great deal of associated bleeding and would have been quite painful. Given the minimal associated bleeding, Dr. Deering opined that Green had very little blood pressure and was "in trouble" at the time Green was shot in the back.
On cross-examination, Dr. Deering agreed that he had reported no physical evidence of a severe beating. On redirect, Dr. Deering acknowledged that Green's head was so severely damaged by the gunshot wounds that physical evidence of any beating about Green's head may not have been visible. Nonetheless, on re-cross-examination, Dr. Deering admitted that "an average-sized guy" striking "hard blows with a closed fist" to a person's head would result in visible injuries. The prosecution then rested its case.
Testifying first for the defense, James Lee White Carradine, known as "Thug Life," admitted he had been present at the Hurt Village apartment on the evening Green was kidnapped and murdered. Carradine maintained, however, that he and Isiah Triplett had remained upstairs with the Black sisters for most of the evening. Although Carradine identified several Gangster Disciples who were at Hurt Village apartment, he maintained the defendant had not been present at the apartment. Carradine said he first met the defendant at the Shelby County jail and did not know whether the defendant was a Gangster Disciple.
Carradine explained that, although a man known variously as "Greg," "MacGreg," or "Red Greg,"[4] had been present at the apartment in Hurt Village on the evening of Green's murder, the defendant was not that man. As to MacGreg's rank, Carradine stated, "I'm just not familiar. You know, he had top rank." Nonetheless, Carradine maintained that Phillips outranked "that MacGreg" and that "Kaos was the dude that was over all of it." Carradine said the person he knew as MacGreg had been present at the apartment and armed with a gun. He described MacGreg as bald, with a light mustache, very light complected, *483 about 5'6" or 5'7" in height, with "a bunch of tattoos," and "twelve gold in his mouth," a "six-point star in the web of his hand," tattoos on his neck, body, and arms, including a "GD" tattoo, a "MacGreg" tattoo on his right forearm, and a "to the world blow" tattoo on his left arm. Carradine confirmed that he had told the police in a May 9, 1997, statement that MacGreg was chief of security and was know as the "Executioner."
On cross-examination, the prosecution pointed out that Carradine had testified similarly at Kevin Wilkins's trial, stating that he knew a person known as "Big Folk" but that Kevin Wilkins was not that person. Carradine reluctantly admitted he had been a Gangster Disciple but maintained that he had no leadership role or rank within the gang. While Carradine denied participating in the physical assault on Green, he recalled seeing the victim kneeling beside the staircase, with Shipp and six others standing around him. Carradine explained that Phillips, along with the men he knew as MacGreg and Big Folk, were "standing behind the six dudes that were around Vernon," talking on the telephone. Carradine recalled Shipp had been walking between the two groups. After Green was moved to an upstairs bedroom, Carradine heard someone telling Green "to shut up before he got killed then." Carradine confirmed that Phillips was the Hurt Village coordinator and Shipp the Hurt Village chief of security and said that MacGreg ranked "somewhere around" two or three in the Memphis Gangster Disciples.
After Carradine testified, the defendant displayed his person to the jury. The record reflects he had no tattoos on his chest, neck, or back, no "MacGreg" or "Greg" tattoo on his right arm, no star tattoos on his hands, and no tattoo of "to the world blow" on his left arm. The record also reflects that the defendant had on his left arm a tattoo of "two heart's intertwined with each other, one with the name Sardie, one with the name Samantha." Also tattooed on his left arm was the word "Red." A tattoo on the defendant's right arm was described as following in the record; "a number one with what appears to be a brick of a wall with Mom and Annie on it." Finally, the record reflects that the defendant had six gold teeth on the bottom and four gold teeth on the top, for a total of ten. The letters "G" "R" "E" "G" appeared on his four top gold teeth. The record reflects there were no stars or "pitch forks or anything else on the teeth."
Annie Robinson, the defendant's mother, along with Nichole Robinson and Patricia Anne Robinson, two of the defendant's sisters, testified that the defendant never had tattoos or gold teeth as described by Carradine. The defendant's mother, along with the defendant's friends, Danny Williams and Ronald Dowell, testified that the defendant had never been a gang member.
While admitting he had been at the Hurt Village apartment on April 30, 1997, Sepacus Triplett nonetheless denied being a member of the Gangster Disciples. However, Phillips directed Triplett to "control the door," so Triplett had answered the door for "everybody" and knew "who came in and who didn't come in." Triplett said he had not seen the defendant at the apartment and believed Phillips was "in charge." On cross-examination, Sepacus Triplett admitted he had lied to the police in a statement given on May 8, 1997, and that he had pleaded guilty to facilitation in connection with Green's murder.
Frederico Mason testified that, although he was not a member of the Gangster Disciples, he had been present at the apartment on April 30, 1997. Mason had *484 seen a man known as "MacGreg" a "couple of times at Hurt Village," but Mason did not know if MacGreg was a Gangster Disciple. Mason maintained the defendant and MacGreg were not the same man. Mason did not see the defendant at the apartment on April 30, 1997, had never seen the defendant at the Hurt Village complex, and had first seen the defendant when shown a picture by a police detective. Mason did not know if MacGreg had been at Nichole Black's apartment on April 30, 1997, because he was "going upstairs and downstairs." Mason knew Kaos but said he did not know if Kaos had been at the apartment on April 30, 1997, but Mason had seen Phillips and Shipp discussing Green's fate. When asked if he saw anyone else, Mason replied, "Like I said, them the only peoples that I just knew, you know." On cross-examination, Mason admitted he left the apartment at approximately 10 p.m. and did not return until approximately 3 a.m.
Steven Hardin testified also and admitted he had pleaded guilty to facilitation to especially aggravated kidnapping in connection with Green's kidnapping and murder. Hardin arrived at the apartment between 5:30 and 6 p.m. on April 30, 1997. Hardin said Shipp called the aid and assist meeting and many people arrived whom Hardin had never before seen. Hardin "vaguely" remembered some of the people who arrived for the meeting, and in particular, he remembered a man known as MacGreg being there that night. Hardin said MacGreg had tattoos on his hand, arms, neck, and shoulder and had a nicely trimmed "blondish beard." Hardin maintained the defendant was not "MacGreg," and said at no time during the evening did Hardin observe the defendant at the apartment. Hardin admitted that he had been "told to go upstairs by Prentiss Phillips and lookout the window and inform them" if anyone, the police, the Vice Lords, "whoever tried to come up to the apartment." Hardin stayed at his upstairs lookout post from 6:30 p.m. until 12 or 1 a.m. On cross-examination, Hardin admitted that, after pleading guilty, he had feared revenge from other Gangster Disciples incarcerated with him and acknowledged that his incarceration with other gang members was a frightening situation.
April Black testified that, on the evening of April 30, 1997, she was held in an upstairs bedroom at gunpoint by members of the Gangster Disciples. Black acknowledged her acquaintance and association with members of the Gangster Disciples, including Kaos, MacGreg, and Phillips. She admitted MacGreg had been at the aid and assist meeting at her apartment, but maintained the defendant is not MacGreg. Black admitted she was serving a ten-year sentence in the Mississippi Department of Correction for armed robbery, but claimed she was not incarcerated with Gangster Disciples from Memphis. On cross-examination Black admitted her brother had been shot by Gangster Disciples in the Shelby County jail, but she denied being afraid of the gang, although admitting she was "concerned."
Horace Black, April Black's brother, admitted he had been a member of the Gangster Disciples for ten years. He also admitted knowing the defendant from jail, but said, to his knowledge, the defendant had never been a member of the Gangster Disciples. Horace Black said he did not know Kaos, despite being a gang member for ten years. On cross-examination, Horace Black admitted that he previously had been convicted of possession of a controlled substance with the intent to sell, manufacture, or deliver, and aggravated robbery.
Sergeant Richard Parker, a Memphis police officer who had been assigned to the *485 Gang Task Force for five years, testified for the defense about gang tattoos. Sergeant Parker described the readily identifiable tattoos often used by Gangster Disciples. He stated the defendant's tattoos could "possibly" be gang tattoos, but he could not readily identify them as such. He indicated the letter "E" of the defendant's "RED" tattoo resembled a Gangster Disciple trademark, "although it was missing the post under it." He further noted that gang members often "camouflage" their tattoos, and he pointed out that tattoos can be easily changed. Sergeant Parker indicated that gang members had begun to eschew tattoos to avoid detection and explained that gold teeth, common among Gangster Disciples, can be removed and changed. Defense counsel pointed out that when he initially showed Sergeant Parker photographs of the defendant's tattoos, Sergeant Parker opined that the defendant's tattoos were not gang-related. After speaking with the prosecuting attorneys in the hall outside the courtroom, Sergeant Parker "came to the conclusion that the tattoos could possibly be gang-related."
Based upon this proof, the jury convicted the defendant of premeditated first degree murder and especially aggravated kidnapping, finding the defendant criminally responsible for the conduct of another.
The trial proceeded to the penalty phase. To establish the two aggravating circumstances the murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death and the murder was committed during a kidnapping[5] the prosecution relied upon the proof presented during the guilt phase of the trial and re-called Sergeant Peppers to the stand. Sergeant Peppers identified a photograph of the victim's body as it appeared when discovered in Jessie Turner Park on the morning of May 1, 1997.
A friend of the defendant, his mother, and two of his sisters testified in mitigation. They described him as a "loving father" of seven children, ranging in age from one to six years old, a member of a large, close-knit family, a concerned and caring brother to his five sisters, and the youngest of his mother's six children and her only son. He attended church. Although he had no steady job, the defendant had been trained as a welder. Both the defendant's mother, and Debra McNeese, a mitigation specialist with Probation Management Group, testified that the defendant had a learning disability and had dropped out of school in the ninth grade. After leaving school, the defendant worked with his father at Eagle Iron Work. Testifying in his own behalf, the defendant asked the jury to spare his life so that he could see his children.
Upon finding that the prosecution had proven both aggravating circumstances beyond a reasonable doubt and that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt, the jury imposed a sentence of death. The defendant appealed, and the Court of Criminal Appeals reversed the defendant's convictions and sentence of death. The State thereafter filed an application for permission to appeal. For the following reasons, we disagree with the Court of Criminal Appeals and reinstate and affirm the defendant's convictions and sentence of death.[6]
*486 II. Failure to Instruct on Lesser-Included Offenses
The Court of Criminal Appeals held that the trial court erred by failing to instruct the jury on facilitation and solicitation of first degree premeditated murder and especially aggravated kidnapping. The Court of Criminal Appeals therefore reversed the defendant's convictions and remanded to the trial court for a new trial. In this Court, the State concedes that, under the circumstances of this case and the test enunciated in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn.1999), facilitation and solicitation are lesser-included offenses of first degree premeditated murder. Nonetheless, the State maintains that the evidence in this case did not justify a jury instruction on either of these lesser-included offenses.
In State v. Burns, 6 S.W.3d at 466-67, this Court explained that an offense is lesser-included if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
"Whether or not a particular lesser-included offense should be charged to the jury depends on whether proof in the record would support the lesser charge." Id. at 468. This Court has adopted a two-step inquiry for determining if the evidence justifies a jury instruction on a lesser-included offense. The trial court must first determine:
whether any evidence exists that reasonable minds could accept as to the lesser-included offense. In making this determination, the trial court must view the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence. Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser-included offense.
Id., at 469. Whether an instruction is required depends upon the evidence, not the theory of the defense or the State. State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002); State v. Richmond, 90 S.W.3d 648, 660 (Tenn.2002). Applying these principles, we conclude that the trial court did not err in failing to instruct on solicitation and facilitation.
A. Solicitation
A person may be convicted of solicitation if that person "by means of oral, written or electronic communication, directly or through another, intentionally commands, requests or hires another to *487 commit a criminal offense ... with the intent that the criminal offense be committed...." Tenn.Code Ann. § 39-12-102(a) (1997). Part (c) of the Burns test, which makes solicitation a lesser-included offense, applies "to situations in which a defendant attempts to commit, or solicits another to commit, either the crime charged or a lesser-included offense, but no proof exists of the completion of the crime." State v. Ely, 48 S.W.3d 710, 719 (Tenn.2001); See also State v. Marcum, 109 S.W.3d 300, 303-04 (Tenn.2003) (quoting this principle and holding that the trial court did not err in failing to instruct on attempted rape where the evidence did not support an attempt but instead supported only the completed offense of rape or the defendant's claim of innocence). As in Marcum, in this case, the evidence unmistakably established either the completed offenses of murder and especially aggravated kidnapping or the defendant's claim of innocence. Consequently, the trial court did not err by failing to instruct the jury on solicitation.[7]
B. Facilitation
Part (c)(1) of the Burns test clearly designates facilitation a lesser-included offense of the charged offense. Burns, 6 S.W.3d at 467. Thus, facilitation is a lesser-included offense of premeditated murder and especially aggravated kidnapping. Having determined that facilitation is a lesser-included offense, we must next determine whether the evidence in this case warranted an instruction on facilitation.
Tennessee Code Annotated section 39-11-403(a) (1997), defines "facilitation" as follows: A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.
(Emphasis added.) Criminal responsibility requires "the intent to promote or assist the commission of the offense." Tenn. Code Ann. § 39-11-402 (1997). Significantly, facilitation requires the lack of criminal responsibility intent. Thus, for a reasonable jury to find the defendant guilty of facilitation of first degree premeditated murder or especially aggravated kidnapping, the jury would have to conclude that the defendant, while lacking the intent to promote or assist the commission of either offense, knowingly furnished substantial assistance in the commission of premeditated murder and especially aggravated kidnapping. See id. § 39-11-403(a) (1997). This record contains no evidence that reasonable minds could accept to support these conclusions. As recounted in great detail above, with respect to premeditated murder, the evidence reasonably supports only one of the following conclusions: (1) Robinson was not present at the apartment, was not involved in Green's murder or the Gangster Disciples, and therefore is completely innocent; (2) Robinson is innocent because, while he gave orders, he did not order anyone to kill or kidnap Green; or (3) Robinson is guilty by criminal responsibility because he ordered other gang members to kidnap and kill Green. Considering the evidence in the light most favorable to the existence of the lesser-included offense, the evidence does not support the notion that the defendant *488 merely furnished substantial assistance in the commission of premeditated first degree murder and especially aggravated kidnapping, without intending to promote or assist the commission of these offenses.
The Court of Criminal Appeals opined that the "knowingly furnishes substantial assistance" element of facilitation of first degree murder was supported by proof that the defendant ordered others to take Green to a secluded location. However, as the State points out, the evidence indicates that the defendant told other gang members to take the victim "fishing." Shipp testified that he had never before heard that instruction but believed it meant gang members were to take the victim "way out somewhere out of the district, rough him up a little bit by physical abuse, and let him get back the best way he could." Accepting this view of the proof, no reasonable juror could have found that the defendant knowingly furnished substantial assistance in the commission of the murder. Indeed, under this view of the proof, Green's murder directly violated the defendant's instruction. It simply defies logic to conclude that the defendant, while not intending to aid or promote Green's murder, nevertheless ordered other gang members to take Green "out of the district, rough him up a little bit by physical abuse, and let him get back the best way he could," knowing all along that these gang members intended to kill Green. Simply put, no reasonable jury could have concluded from the evidence presented that the defendant had the knowledge required for facilitation but lacked the intent required for criminal responsibility. We therefore conclude that the trial court did not err by failing to instruct the jury on facilitation to commit premeditated murder. See Ely, 48 S.W.3d at 724 (holding that the trial court did not err by failing to instruct facilitation as no reasonable jury could believe that, although the defendant was present at the scene of the robbery, knew that the accomplice intended to commit robbery, and substantially assisted in the commission of the robbery, he "nevertheless did not intend `to promote or assist the commission of the offense ...'"); Burns, 6 S.W.3d at 471 (holding that the trial court did not err in refusing to instruct on facilitation because no reasonable jury could conclude that the defendant had the knowledge required for facilitation but lacked the intent required for criminal responsibility).
As to facilitation to commit especially aggravated kidnapping, the Court of Criminal Appeals explained that, although the proof established the defendant's direct participation in initially kidnapping and beating Green at the apartment, a jury could have concluded that the defendant did not intend the kidnapping be especially aggravated when he ordered gang members to take Green "fishing." Again, as explained above, from the evidence presented, no reasonable jury could have concluded that the defendant had the knowledge required for facilitation but lacked the intent required for criminal responsibility to commit especially aggravated kidnapping. Given the proof presented, the defendant was either guilty by virtue of criminal responsibility or he was innocent. Therefore, the trial court did not err in failing to instruct the jury on facilitation of especially aggravated kidnapping. The Court of Criminal Appeals's decision setting aside the defendant's convictions and remanding for a new trial therefore is reversed.
III. Jarvis Shipp Accomplice Instruction
The defendant asserts that the trial court erred by instructing the jury they were to determine as a question of *489 fact whether or not Jarvis Shipp was an accomplice to the crime. The State asserts the defendant waived this issue by failing to object to the charge given the jury. Alternatively, the State argues that any error was harmless because Shipp's testimony was corroborated abundantly by James's testimony and other evidence, as the Court of Criminal Appeals found.
When the facts concerning a witness's participation are clear and undisputed, the trial court determines as a matter of law whether the witness is an accomplice. Ripley v. State, 189 Tenn. 681, 687, 227 S.W.2d 26, 29 (1950); State v. Perkinson, 867 S.W.2d 1, 7 (Tenn.Crim.App. 1992). If the facts are disputed or susceptible to different inferences, the jury must decide as a question of fact whether the witness is an accomplice. Perkinson, 867 S.W.2d at 7. The test generally applied is whether the witness could be indicted for the same offense charged against the defendant. Monts v. State, 214 Tenn. 171, 191, 379 S.W.2d 34, 43 (1964).
In this case, the facts were not disputed, and the trial court should have instructed the jury to consider Shipp an accomplice as a matter of law. However, the defendant failed to object to the trial court's instruction and thus waived the issue. Furthermore, even considering the merits of the issue, the error is harmless because James's testimony and Dr. Deering's testimony sufficiently corroborated Shipp's description of the events so that the evidence is sufficient to support the jury's verdict of first degree murder. This issue is without merit.
IV. Display of Skull and Admission of Photographs
The State next challenges the Court of Criminal Appeals's conclusion that the trial court erred both in allowing the forensic pathologist to use the victim's cleaned and reconstructed skull when testifying about the victim's injuries and in admitting into evidence certain photographs depicting the victim's body. While the State concedes that the Court of Criminal Appeals recited the correct standard of appellate review, the State nonetheless maintains that the Court of Criminal Appeals failed to apply the correct standard. According to the State, rather than determining whether the trial court abused its discretion, the intermediate appellate court independently assessed the propriety of using the skull at trial before concluding there was "no need for its introduction."[8] The State also relies upon several cases in which this Court rejected defense challenges to the admission of a victim's skull during a murder trial. See, e.g., State v. Pike, 978 S.W.2d 904, 925 (Tenn.1998); State v. Cazes, 875 S.W.2d 253, 263 (Tenn. 1994); State v. King, 718 S.W.2d 241, 250-51 (Tenn.1986); State v. Morris, 641 S.W.2d 883, 888 (Tenn.1982).
In response, Robinson argues that this Court's prior decisions are not controlling because, unlike the defendants in those cases, he was charged with premeditated first degree murder by criminal responsibility and was not accused of actually inflicting the fatal injuries upon the victim. Furthermore, the defendant argues that Dr. Deering's thorough and clear testimony regarding the victim's injuries rendered the skull's use unnecessary. Although Robinson admits that Dr. Deering's testimony and use of the skull to explain the order of the gunshots corroborated Shipp's testimony, the defendant nonetheless *490 maintains that the skull was not relevant to "any disputed issue in the guilt phase" of his trial. The defendant argues that, in light of the great danger of unfair prejudice, the trial court erred by allowing Dr. Deering to testify and display the skull during his testimony.[9]
Admission of evidence is entrusted to the sound discretion of the trial court, and a trial court's ruling on evidence will be disturbed only upon a clear showing of abuse of discretion. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn.1997). A trial court's exercise of discretion will not be reversed on appeal unless the court "applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining." State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997). When determining admissibility, a trial court must first decide if the evidence is relevant. Tenn. R. Evid. 402 ("All relevant evidence is admissible except as provided by the Constitution of the United States, the Constitution of Tennessee, these rules or other rules or laws of general application in the courts of Tennessee. Evidence which is not relevant is not admissible."); State v. James, 81 S.W.3d 751, 757 (Tenn.2002). Evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" is relevant evidence. Tenn. R. Evid. 401. After a court concludes evidence is relevant, the court must then weigh the probative value of the evidence against the danger the evidence will unfairly prejudice the defendant at trial. Relevant evidence should be excluded if the court determines that the probative value of the evidence "is substantially outweighed by its danger of unfair prejudice." Tenn. R. Evid. 403 (emphasis added). This Court previously has emphasized:
Rule 403 is a rule of admissibility, and it places a heavy burden on the party seeking to exclude the evidence. Excluding *491 relevant evidence under this rule is an extraordinary remedy that should be used sparingly and persons seeking to exclude otherwise admissible and relevant evidence have a significant burden of persuasion.
James, 81 S.W.3d at 757-58 (internal quotations and citations omitted).
Applying these principles, we conclude that the trial court did not abuse its discretion by allowing Dr. Deering to testify and display the skull to explain his testimony. Indeed, nothing in this record indicates that the trial court "applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining."
In a jury-out hearing the trial court carefully considered the defense objections, correctly summarized governing law regarding the prosecution's right to prove its case, and accurately concluded that this right may not be foreclosed by a defendant's characterization of the proof as undisputed or by a defendant's offer to stipulate or concede certain factual issues. See James, 81 S.W.3d at 761; State v. West, 767 S.W.2d 387, 394 (Tenn.1989) (holding that the trial judge did not err by refusing to accept defendant's offer to stipulate the identity of all property when the defendant made the offer in an effort to eliminate highly emotional and prejudicial testimony); King, 718 S.W.2d at 250-51 (holding that the victim's skull and skull fragments were properly admitted even though the defendant stipulated prior to trial that the victim's death resulted from a shot in the back of the head from a high-powered rifle). After acknowledging that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, the trial court specifically concluded that the probative value of Dr. Deering's testimony and his use of the skull to explain his testimony outweighed the danger of unfair prejudice. The trial court stated: "I can't think of a better way to display and show the injuries than by use of the actual skull. I'm not sure that you could recreate that sufficient to do what I anticipate the doctor's going to do based on what I heard him do last time." Later in the proceeding while ruling upon the admissibility of certain photographs, the trial court noted that the skull was less graphic and a better aid "to demonstrate the injuries" than some of the photographs. Defense counsel apparently agreed with this assessment, stating, "[a]nd with that skull you don't have the blood and the gore that you see in those photographs. [Dr. Deering] more than adequately demonstrated to this entire courtroom in a very academic, professional fashion."
Furthermore, as the defendant correctly admits, Dr. Deering's testimony about the order of the gunshots corroborated Shipp's testimony. Indeed, it was Shipp's testimony about the order of the gunshots that Dr. Deering used the skull to clarify and explain. Such corroborating evidence clearly was relevant because it was necessary to the prosecution's case. This Court repeatedly has held that a conviction may not be based solely upon the uncorroborated testimony of an accomplice to the offense. See State v. Bane, 57 S.W.3d 411, 419 (Tenn.2001); State v. Stout, 46 S.W.3d 689, 696-97 (Tenn.2001); State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994). Evidence corroborating an accomplice's testimony, such as Dr. Deering's testimony, therefore certainly qualifies as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable." Tenn. R. Evid. 401. The defendant bore the heavy burden of establishing that the danger of unfair prejudice from Dr. Deering's testimony and use of the skull *492 substantially outweighed its probative value. The trial court did not abuse its discretion by concluding that the defendant failed to meet this burden. The Court of Criminal Appeals's decision to the contrary is reversed.
The State also challenges the Court of Criminal Appeals's conclusion that the trial court erred by admitting Exhibit 10, a post-mortem photograph of the victim's right forehead. Again, admission of evidence is entrusted to the sound discretion of the trial court, and appellate courts should not reverse a trial court's admissibility decision absent a showing of abuse of discretion. Here again, no abuse of discretion has been shown. The trial court found, and the Court of Criminal Appeals agreed, that the photograph in question, Exhibit 10, along with two other photographs, Exhibits 8 and 9,[10] were relevant to show premeditation, the cause of death, and the victim's location and body position, and also were necessary to illustrate the testimony of many of the state's witnesses. Immediately upon admission of the photographs, the trial court gave the jury a limiting instruction and cautioned the jury against improperly using the photographs. The trial court did not act as a rubber stamp and admit every photograph the prosecution proffered. As previously stated, the trial court excluded certain autopsy photographs, noting their admission was not necessary because Dr. Deering had been allowed to use the victim's skull as a demonstrative aid. The trial court did not apply an incorrect legal standard. Tennessee courts follow a policy of liberality in the admission of photographs in both civil and criminal cases. See State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978). Photographs of a corpse are generally admissible in murder prosecutions if they are relevant to the issues at trial. Id. at 950-51. The trial court's determination that the photographs were relevant to issues at trial is not illogical nor irrational and did not cause an injustice to the defendant. As the trial court found, the photographs were relevant to several issues, illustrated and supplemented the testimony of Dr. Deering, and revealed the brutality of the attack and the extent of force used against the victim. See State v. Smith, 868 S.W.2d 561, 576 (Tenn.1993). For all these reasons, we conclude that the trial court did not err by admitting Exhibits 8, 9, and 10 into evidence. The Court of Criminal Appeals's decision to the contrary is reversed.
V. Sergeant Ashton's Testimony
Relying upon Crawford v. Washington, ___ U.S. ___, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), defense counsel complains that Sergeant Ashton's testimony regarding Shaun Washington's identification of the defendant constituted inadmissible hearsay that violated his constitutional right to confront the witnesses against him. We agree with the Court of Criminal Appeals and the trial court that the defendant elicited this hearsay evidence and cannot complain now about its introduction. When defense counsel cross-examined Sergeant Ashton about his preparation of photo spread "GG," the following exchange occurred.
Q: And as case coordinator during your investigation are you aware of any other individuals that were interviewed that identified "GG," number six, as being there?
A: Yes, sir.
Q: And who would that be, sir?
*493 A: Right offhand I wouldn't know. I'd have to look at my case.
Q: Okay. Would you please do you have that somewhere nearby?
A: I believe I've got a copy of it in my office.
Q: Okay. Could you go obtain that?
A: It'd take me a few moments.
Q: Okay. Could you do that, sir?
THE COURT: What are you asking Mr. Ozment?
MR. OZMENT: You honor, I'm asking him to obtain whatever other identifications were made of "GG" six.
The court then recessed for the evening, and when cross-examination resumed the next day, the following exchange occurred between defense counsel and Sergeant Ashton.
Q: Sergeant Ashton, yesterday when we left off we were talking about the photo spread and the people that had identified people in the photo spread, correct?
A: Yes, sir.
Q: Particularly photo spread "GG," correct?
A: Yes, sir.
Q: And the last question I left on was who else identified someone out of photo spread "GG." Have you had an opportunity to check your records on that?
A: The best I could determine it was Christopher Lewis and Shaun Washington.
Q: Okay. So out of all the people that when they were shown this photo spread by officers in your department that identified Gregory Robinson during the course of your investigation the only two were Christopher James and Shaun Lewis, correct Shaun Lewis James?
A: That's what we've got in their statements, correct.
On re-direct, Sergeant Ashton testified that, while giving a statement on June 13, 1997, Shaun Washington looked at photographic array "GG" and identified the defendant as MacGreg. When asked about Washington's demeanor at the time, Sergeant Ashton responded, "He was very sure of himself." The defendant did not interpose an objection to Sergeant Ashton's testimony.
While the defendant may very well be correct that both Crawford and Tennessee Rule of Evidence Rule 803(1.1) bar hearsay statements of identification if the declarant does not testify at trial, neither Crawford nor Rule 803(1.1) is dispositive in this case because the defendant himself both elicited and opened the door to the testimony he now assigns as error. Under these circumstances, the defendant is not entitled to relief. Indeed, it is well-settled that a litigant "will not be permitted to take advantage of errors which he himself committed, or invited, or induced the trial court to commit, or which were the natural consequence of his own neglect or misconduct." Norris v. Richards, 193 Tenn. 450, 246 S.W.2d 81, 85 (1952); see also State v. Smith, 24 S.W.3d 274, 279-80 (Tenn.2000); Tenn. R.App. P. 36(a). Thus, the defendant is not entitled to relief on this claim.
VI. Failure to Declare a Mistrial
The defendant further maintains that the trial court erred in denying his motion for a mistrial given the prosecutorial misconduct in presenting Nichole Black's testimony. During its rebuttal, the prosecution called Nichole Black, one of the sisters held in the apartment on the night of Vernon Green's murder. Black testified that the defendant had been in the apartment on the night in question. *494 On redirect examination, the prosecutor handed Black a photograph and asked if she could identify the person in the photograph. Defense counsel objected to the identification, and the trial court held a jury-out hearing. Ultimately, the trial court excluded Black's testimony and ordered it entirely stricken from the record because the prosecution had failed to inform defense counsel that Black had made a prior identification of the defendant. Although the trial court denied the defendant's request for a mistrial, the trial court instructed the jury to disregard Black's testimony.
The decision of whether to grant or deny a motion for a mistrial rests within the sound discretion of the trial court. A mistrial should be declared only upon a showing of manifest necessity. State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn.2003). "In other words, a mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage of justice would result if it did." State v. Land, 34 S.W.3d 516, 527 (Tenn.Crim.App.2000). Appellate courts should not reverse a trial court's decision denying a request for a mistrial absent a clear showing that the trial court abused its discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn.2002).
The record in this case supports the trial court's decision and demonstrates no abuse of discretion. Nichole Black testified that even though the power was out in her apartment on April 30, 1997, she had observed a man for approximately thirty seconds by the light of a small pocket pager held near her face and that the man in the photograph "looked like" the man she observed. Nichole Black had just previously testified that no one in the courtroom, including the defendant, was at her apartment the night of Green's abduction and murder. Viewing it as a whole, Nichole Black's testimony was uncertain and vague. The trial judge twice instructed the jury to disregard her testimony in its entirety. Jurors are presumed to follow the instructions of the court. Reid, 91 S.W.3d at 279; Stout, 46 S.W.3d at 715; State v. Williams, 977 S.W.2d 101, 106 (Tenn.1998). Under these circumstances, the trial court did not abuse its discretion by denying the defendant's request for a mistrial. This issue is without merit.
VII. Due Process Violation: Inconsistent Theories & Evidence
In his October 2000 motion for a new trial, the defendant alleged his Due Process rights had been violated because the theory of guilt presented by the prosecution at the October 1999 trial of co-defendant Phillips was fundamentally inconsistent with and inherently contradictory to evidence and argument presented by the prosecution at his November 1998 trial.[11] The trial judge who presided at the various trials and plea colloquies related to this murder rejected the defendant's claim. The trial court noted that although "the evidence did not absolutely establish the identity of the leader at this meeting, there was ample evidence that the Defendant was a leader at that meeting. The fact that Prentiss Phillips, a co-defendant was also identified as a leader at this meeting does not render the finding that this Defendant was a leader invalid."
The defendant renewed his Due Process claim in the Court of Criminal Appeals. After announcing that the claim was a question of first impression in Tennessee, *495 the Court of Criminal Appeals adopted the analysis of the United States Court of Appeals in Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.2000). Consistent with the Eighth Circuit's approach, the Court of Criminal Appeals explained that, in separate trials against co-defendants for the same crime, the prosecution violates Due Process by pursuing factually contradictory theories that are at the core of the prosecution's case. The intermediate appellate court explained that to obtain relief under this approach, a defendant must establish not only a "core" inconsistency, but also a reasonable likelihood that the outcome of the trial would have been different absent the inconsistency. Applying this test, the intermediate appellate court found that, during the separate trials of the defendant and co-defendant Phillips, the prosecution "presented some proof and arguments which were inconsistent, contradictory, and factually irreconcilable regarding the relative rank of the defendant and Phillips." The Court of Criminal Appeals nonetheless concluded that the defendant had failed to establish a reasonable likelihood that absent these prosecutorial inconsistencies the jury's verdict in the guilt phase would have been different. However, finding a reasonable likelihood that the jury would not have imposed a sentence of death absent the inconsistencies, the Court of Criminal Appeals concluded that the defendant's sentence of death should be reversed on this ground alone.
In this Court, the State initially argues that the Court of Criminal Appeals erred in recognizing an independent Due Process bar to the prosecution's reliance and pursuit of inconsistent theories at separate trials involving the same crime. The State concedes that a prosecutor clearly deprives a defendant of Due Process by knowingly using false evidence or argument to obtain a conviction or sentence.[12] However, citing cases from other jurisdictions, the State points out that the law is less clear as to whether Due Process precludes a prosecutor's use of factually inconsistent or contradictory theories where there is no known falsity. See, e.g., People v. Sakarias, 22 Cal. 4th 596, 94 Cal. Rptr. 2d 17, 995 P.2d 152, 174 (2000) ("Less clear is whether, knowing falsity aside, a prosecutor oversteps constitutional limits by asserting, in separate trials of different defendants, factually inconsistent or contradictory theories of criminal events.") The State also maintains that this Court need not definitively clarify the law in this case because the prosecution neither pursued inconsistent theories nor presented contradictory evidence at these separate trials.
In contrast, the defendant argues that the Court of Criminal Appeals correctly recognized the Due Process claim, appropriately adopted the Eighth Circuit's analysis of such claims, and accurately found a Due Process violation in this case. Nonetheless, the defendant challenges the Court of Criminal Appeals's conclusion that the Due Process violation did not affect the jury's verdict at the guilt phase of his trial.
Having thoroughly reviewed the defendant's extensive trial record, the supplemental record consisting of transcripts from the separate trials or plea colloquies of co-defendants Antonio Jackson, Prentiss Phillips, Jarvis Shipp, and Kevin Wilkins, and the very lengthy appellate briefs, we are not persuaded the prosecution pursued inconsistent theories or offered contradictory *496 proof at the separate trials of these co-defendants.[13]
As previously detailed, the prosecution offered proof at the defendant's trial to establish that the defendant, as chief of security, ranked third in the city-wide hierarchy of the Memphis Gangster Disciples. Witnesses testified the defendant ordered other gang members to "snatch up" the victim, and that the defendant himself beat the victim at the apartment. Proof also showed that the defendant ordered others to take the victim upstairs and detain him. Witnesses testified that the defendant ordered Wilkins and Phillips to select gang members to take the victim "fishing." But, the jury also heard proof to show that Phillips was coordinator for the Hurt Village Gangster Disciples. When asked who had the higher rank, Phillips or the defendant, Shipp indicated the defendant ranked higher, but Shipp emphasized that the murder occurred on Phillips's "turf" in Hurt Village and that Phillips and the defendant were "kind of on the same level" in terms of authority. James was not asked about the defendant's rank, did not attribute a rank to the defendant, and stated he had never seen the defendant before April 30, 1997. However, James testified that Phillips held the rank of coordinator within the Hurt Village Gangster Disciples and it was Phillips whom the victim asked to stop the assault. Moreover defense counsel emphasized through cross-examination that Shipp and other prosecution witnesses had initially given statements to the police implicating Phillips as the ranking Gangster Disciple responsible for the orders that resulted in the victim's murder. Indeed, both James and Shipp were closely questioned about their failure to initially implicate the defendant, and in particular, defense counsel emphasized that Shipp did not implicate or mention the defendant in his initial statement to the police but had instead named and implicated Phillips.
Both Shipp's and James's testimony conveyed Phillips's leadership role in Green's kidnapping and murder. Testimony indicated that Phillips announced the Hurt Village Gangster Disciples were going to retaliate against the Vice Lords and step up the violence to another level and that Phillips and Shipp called the aid and assist meeting. Testimony also showed that Phillips posted gang members as lookouts at the door of the apartment and in an upstairs bedroom, that Phillips accused the victim of being a lookout for the Vice Lords, and that the victim asked Phillips, rather than the defendant, to "tell them folks to stop." Furthermore, the testimony indicated that Phillips announced James would be punished for failing to aid Shipp in the fight with the Vice Lords and selected gang members to inflict the punishment. In addition there was proof that Phillips met with the defendant and Kaos. A defense witness said he heard Phillips and Shipp discussing Green's fate; and testimony indicated that Phillips, at the defendant's direction, selected three of the gang members who removed Green from the apartment. Finally, there was testimony that Phillips escorted James home and told Shipp to take "a six day vacation."
At Phillips's subsequent trial the State argued and presented evidence to show *497 that Phillips, as coordinator, was the ranking member of the Hurt Village Gangster Disciples, called the aid and assist meeting, and gave orders to others during the meeting. There was testimony that Phillips reported the victim was outside and that Phillips stated the victim would have to be killed. The proof showed that Phillips picked other gang members, including his number two man Shipp, to be part of the group that removed Green from the apartment and killed him. However, the proof at Phillips's trial also showed that the defendant, answering Phillips's call, attended the aid and assist meeting, ordered others to "snatch up" the victim, met with Phillips in the kitchen, ordered the victim taken upstairs after the victim had been beaten. The jury at Phillips's trial also heard evidence that the defendant was Kaos's chief of security with authority to carry out orders from Kaos, that the defendant ordered the victim taken from the apartment, and that the defendant and Phillips each picked three gang members to take the victim from the apartment.
As should be apparent from these brief summaries, the prosecution did not pursue inconsistent theories or present inconsistent proof at these separate trials. As the State points out, the focus in each trial was upon each defendant's culpability, but the theory remained the same. At Phillips's trial, the prosecution focused on Phillips's culpability for the kidnapping and murder, and much of this proof related to Phillips's position as coordinator of the Hurt Village Gangster Disciples. Witnesses at Phillips's trial were familiar with Phillips's coordinator rank, but had never seen the defendant before the evening of April 30, 1997. The defendant makes much of the fact that the prosecution at Phillips's trial argued that Phillips, as coordinator of the Hurt Village Gangster Disciples, had an additional reason for participating in the victim's kidnapping and murder, stating:
[P]art of this ... was a personal situation. This wasn't entirely a Gangster Disciple matter. It was personal. It was a personal affront to this man's ego, this man, the coordinator of Hurt Village. An altercation had happened on his turf between the Vice Lords and the Gangster Disciples and it diminished his power. And he wasn't going to stand for it.
The prosecution did not make this argument at the defendant's trial. And, given that this argument was completely unrelated to the defendant, the prosecution's failure to press this argument is logical. However, this argument is entirely consistent with testimony at the defendant's trial indicating that Phillips was very upset after the skirmish with the Vice Lords and called the aid and assist meeting because he wanted to step up the violence and retaliate against the Vice Lords. Thus, from our thorough review of the record and the briefs, we conclude that the prosecution did not pursue inconsistent theories at these separate trials.
By so stating, we do not intend to imply the evidence at these separate trials was identical. It was not discrepancies exist. But these discrepancies were isolated and immaterial when taken in context and certainly do not give rise to a Due Process violation.
As a practical matter, discrepancies are commonly unavoidable when several individuals are prosecuted in separate trials for the same offense. Indeed, such trials present challenges because "the truth is clouded by secret and elaborate gang rituals; the use of two and three code names for gang members; and the commission of crimes by groups." State v. Phillips, 76 S.W.3d 1, 10 (Tenn.Crim.App.2001). Furthermore, as the Alabama Court of Criminal Appeals noted, "evidence of criminal *498 conspiracies hardly ever comes from ministers and civic leaders." Anderson v. State, 354 So. 2d 1156, 1159 (Ala.Cr.App.1977). This case well-illustrates that point. James and Shipp were themselves gang members, and Shipp was an accomplice to these crimes. The Court of Criminal Appeals has described James as "a rather inarticulate witness who was prone to cryptic responses." State v. Jackson, 52 S.W.3d 661, 667 (Tenn.Crim.App.2001). This description is entirely accurate. James appeared to contradict himself while testifying at both the defendant's trial and Phillips's trial, but the prosecution did not encourage him to do so. Rather, the record suggests the prosecutors were sometimes themselves surprised or confused by his answers. At the defendant's trial, James was not asked and did not ascribe a rank to the defendant but indicated that Phillips and Shipp followed the defendant's directions without hesitation. At Phillips's trial, James first said Phillips outranked the defendant but later testified the defendant, not Phillips, had been "calling the shots" in the apartment. The prosecutors did not adopt this testimony to argue that Phillips outranked the defendant. Instead, the prosecution's evidence, argument, and theory focused upon Phillips's own statements and actions and upon Phillips's rank and authority as coordinator of the Hurt Village Gangster Disciples.
We also are not troubled, as was the Court of Criminal Appeals, by the prosecution's decision to call Shipp as a witness at the guilt phase of the defendant's trial while offering his testimony at only the sentencing phase of Phillips's trial. As previously explained, Shipp initially gave a statement to the police implicating Phillips and attributing to Phillips many of the actions he attributed to the defendant at the defendant's trial. Had Shipp been called by the prosecution as a witness at Phillips's trial and then provided testimony consistent with his initial statement to the police, the prosecution's proof at the separate trials would have been inconsistent. By choosing not to call Shipp during the guilt phase of Phillips's trial, and offering his testimony on a narrow point at the sentencing phase, the prosecution avoided even the potential for inconsistencies. Furthermore, unlike the Court of Criminal Appeals, we do not find the prosecution's failure to question James about the defendant's rank at the defendant's trial unusual. James testified he had never seen the defendant prior to April 30, 1997, and had been a member of the East Village Gangster Disciples only three or four months at that time. Given this testimony, the prosecution had no reason to believe James knew anything about the defendant's rank. Moreover, James illustrated his lack of knowledge or uncertainty on this issue at Phillips's trial where James testified inconsistently when questioned about the relative ranks of Phillips and the defendant.
In short, the prosecution presented a consistent theory at these separate trials. The prosecution at each trial sought to establish each defendant's criminal responsibility for first degree murder and especially aggravated kidnapping by showing that each defendant held a leadership position in the gang, either citywide chief of security or Hurt Village coordinator, and that, acting in his leadership role, each defendant ordered and otherwise directed gang members to kidnap and murder Vernon Green. Accordingly, we do not agree with the Court of Criminal Appeals's conclusion that the prosecution presented factually inconsistent theories and evidence at the defendant's and Phillips's separate trials. Reversal of the defendant's death sentence on this basis, therefore, is not warranted. The defendant's sentence of death is reinstated.
*499 VIII. Apprendi & Ring Challenge
Having concluded that the defendant's conviction of first degree murder and sentence of death should be reinstated, we next consider the defendant's contention that his sentence should be vacated as unconstitutional because the aggravating circumstances were not charged in the indictment. As support for this claim the defendant relies upon Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). This issue is without merit. See State v. Berry, 141 S.W.3d 549 (Tenn. 2004).[14]
IX. Mandatory Review
Tennessee Code Annotated section 39-13-206(c)(1) (1997), mandates that this Court determine: (1) whether the sentence of death was imposed in any arbitrary fashion; (2) whether the evidence supports the jury's finding of statutory aggravating circumstances; (3) whether the evidence supports the jury's finding that aggravating circumstances outweigh any mitigating circumstances; and (4) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.
A thorough review of the record reveals that the evidence is sufficient to support the jury's finding of the aggravating circumstances beyond a reasonable doubt. The jury based imposition of the death penalty upon two aggravating circumstances: "the murder was especially heinous, atrocious, or cruel in that in involved torture or serious physical abuse beyond that necessary to produce death" and "the murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit ... kidnapping." See Tenn.Code Ann. § 39-13-204(i)(5), (7) (1997).
The defendant contends that the evidence is not sufficient to support the jury's finding of the (i)(5) aggravating circumstance because the aggravating circumstance may not be vicariously applied where, as here, the first degree murder conviction is based upon criminal responsibility. In determining whether the evidence supports a jury's finding of a statutory aggravating circumstance, the proper inquiry for an appellate court is whether, after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt. State v. Suttles, 30 S.W.3d 252, 262 (Tenn.2000).
In Owens v. State, 13 S.W.3d 742, 760 (Tenn.Crim.App.1999), perm. app. denied (Tenn.2000), the intermediate appellate court approved vicarious application of the (i)(5) aggravating circumstance. The defendant in Owens hired Sidney Porterfield, *500 her co-defendant, to kill her husband. Porterfield bludgeoned Owens's husband to death with a tire iron. Owens did not participate in the bludgeoning, and, as here, was not present when the assault occurred; yet the jury applied the (i)(5) aggravating circumstance to support imposition of the death penalty. Owens argued the jury had erred in applying the aggravating circumstance because she actually had not participated in the murderous assault. In rejecting this assertion, the Court of Criminal Appeals emphasized that the statutory language of the (i)(5) aggravating circumstance focuses on the nature and circumstances of the murder rather than the conduct or intent of the defendant. The intermediate appellate court opined that this Court had implicitly approved vicarious application of the aggravating circumstance in another case. Owens, 13 S.W.3d at 761 (citing State v. Blanton, 975 S.W.2d 269, 279-80 (Tenn. 1998) (upholding the jury's finding of the (i)(5) aggravating circumstance to support death sentence on the premeditated murder convictions despite the lack of evidence indicating that the defendant inflicted the fatal blows)). Thus, the Owens court held that the (i)(5) aggravating circumstance can be applied to support the death penalty for a defendant, who, like Owens, did not inflict the fatal blows.
Applying the analysis the Court of Criminal Appeals applied in Owens, this Court has held that the (i)(3) aggravating circumstance may not be vicariously applied. Johnson v. State 38 S.W.3d 52, 63 (Tenn.2001). In so holding, we emphasized that, "unlike other aggravating circumstances, such as the (i)(5) aggravator, the statutory language of the (i)(3)[15] aggravating circumstance" focuses upon the defendant's actions and intent rather than upon the actual circumstances surrounding the killing. Id. Although we formally adopted the analysis of Owens, we expressly declined in Johnson to adopt the holding of Owens with respect to the (i)(5) aggravating circumstance.[16] Vicarious application of the (i)(5) aggravating circumstance now is squarely presented. Therefore, we take this opportunity to agree with the Court of Criminal Appeals and adopt the holding of Owens. We hold that the (i)(5) aggravating circumstance may be vicariously applied because the statutory language focuses upon the nature and circumstances of the crime, rather than the actions, intent, and conduct of the defendant. This holding breaks no new ground. See State v. Carter, 988 S.W.2d 145, 150 (Tenn.1999) (noting that the (i)(5) aggravating circumstance focuses upon the "circumstances of the killing" and stating that "whether the defendant intended the victim's suffering is irrelevant under (i)(5)"). Thus, the defendant's assertion is without merit.
Furthermore, the evidence is sufficient to support the jury's finding of the (i)(5) aggravating circumstance. Green was "arrested" and held at an apartment where numerous armed gang members, led by the defendant, beat and threatened him. Testimony indicated that Green asked his captors for release and relief, that he appeared very frightened, that he defecated during the ordeal and was ridiculed for doing so, and that he begged his *501 captors to let him go, promising that he would not report their crimes. Witnesses indicated that Green became even more frightened upon arriving at the park where he was murdered. There, Green's captors physically carried and dropped him on the hilltop where he was murdered. Before Green was repeatedly shot in the head, Green begged for his life. Green continued to beg for his life and cry out after being shot in the buttocks and the back. Dr. Deering opined that the gunshot wounds to Green's buttocks would have been very painful. Dr. Deering also opined that the first gunshot wound to Green's head would have been fatal. In short, the evidence clearly is sufficient to support the jury's finding that "the murder was especially heinous, atrocious, or cruel in that in involved torture or serious physical abuse beyond that necessary to produce death." This issue is without merit.
Also without merit is the defendant's claim that the (i)(7) felony murder aggravating circumstance may not be applied to impose the death penalty upon a defendant who did not personally kill the victim. See Tenn.Code Ann. § 39-13-204(i)(7). This aggravating circumstance may be applied upon proof that "the murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit ... kidnapping." See id. at (5), (7). The proof in this record clearly is sufficient to support the jury's finding that Green's murder was knowingly directed by the defendant while the defendant had a substantial role in committing Green's kidnapping. This issue is without merit.
Furthermore, the evidence supports the jury's determination that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. Additionally, there is no indication that the sentence of death was imposed in an arbitrary fashion.
We must next conduct a comparative proportionality review. Addressing this issue, the Court of Criminal Appeals held the death sentence disproportionate.[17] We disagree. Statutory comparative proportionality review is an additional safeguard against arbitrary and capricious death sentences. State v. Bland, 958 S.W.2d 651, 663 (Tenn.1997); Tenn.Code Ann. § 39-13-206(c)(1)(D). Our function in performing this review is not to search for proof that a defendant's death sentence is perfectly symmetrical with the penalty imposed in all other first degree murder cases, but to identify and invalidate the aberrant death sentence. State v. Godsey, 60 S.W.3d 759, 782 (Tenn.2001); Bland, 958 S.W.2d at 665. In conducting comparative review, we do not act as a "super jury," nor do we second-guess the jury's decision. Bland, 958 S.W.2d at 668. A death sentence is aberrant, and thus disproportionate, "[i]f the case, taken as a whole, is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed." Bland, 958 S.W.2d at 665.
"Selecting similar cases ... for comparison is not an exact science." Id. at 667. "Not included in the pool of similar cases are first degree murder cases in *502 which the State did not seek the death penalty or first degree murder cases in which a sentence other than death was agreed upon as part of a plea bargaining agreement." Godsey, 60 S.W.3d at 784. Comparative proportionality review is not a search for disproportionate or aberrant life cases. Id. As the United States Supreme Court explained:
Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the [death] penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.
Gregg v. Georgia, 428 U.S. 153, 203, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Godsey, 60 S.W.3d at 784-85.
After identifying similar cases, this Court carefully examines the facts of the crimes, the characteristics of the defendants, and the aggravating and mitigating factors in the case on appeal and the similar cases. Godsey, 60 S.W.3d at 782; Bland, 958 S.W.2d at 664. While the aggravating and mitigating circumstances are important for comparison purposes, this Court considers many variables including: (1) the means of death; (2) the manner of death (e.g., violent, torturous, etc.); (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victims' circumstances including age, physical and mental conditions, and the victims' treatment during the killing; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effects on non-decedent victims. Bland, 958 S.W.2d at 667 (citing cases). In addition, several criteria are relevant to a comparison of the characteristics of defendants, including: (1) the defendant's prior criminal record or prior criminal activity; (2) the defendant's age, race, and gender; (3) the defendant's mental, emotional or physical condition; (4) the defendant's involvement or role in the murder; (5) the defendant's cooperation with authorities; (6) the defendant's remorse; (7) the defendant's knowledge of helplessness of victim(s); and (8) the defendant's capacity for rehabilitation. Id.
Mindful of these factors, we have compared the defendant's sentence to the sentence imposed in similar cases in the relevant pool and have determined that the death sentence imposed upon the defendant is not disproportionate. As the State points out, the death penalty has been imposed and upheld in at least five other execution-style first degree murder cases. See State v. Reid, 91 S.W.3d 247, 287 (Tenn.2002); State v. Austin, 87 S.W.3d 447, 465 (Tenn.2002); State v. Howell, 868 S.W.2d 238, 262 (Tenn.1993); State v. Van Tran, 864 S.W.2d 465, 482 (Tenn.1993); State v. Harris, 839 S.W.2d 54, 77 (Tenn. 1992). Furthermore, the death penalty has been imposed in several cases in which the jury found the same two aggravating circumstances as those relied upon by the jury to support imposition of the death penalty in the defendant's case. See State v. Morris, 24 S.W.3d 788, 791 (Tenn.2000); State v. Mann, 959 S.W.2d 503, 504 (Tenn. 1997); State v. Hall, 958 S.W.2d 679, 683 (Tenn.1997); State v. Barber, 753 S.W.2d 659 (Tenn.1988); State v. Zagorski, 701 S.W.2d 808, 811 (Tenn.1985). Perhaps most significantly, however, the death penalty has been imposed and upheld in several other cases in which the defendant, like the defendant in this case, was not present at the scene of the murder. Austin, 87 S.W.3d at 465-66; State v. Stevens, 78 S.W.3d 817, 823 (Tenn.2002); State v. Hutchison, 898 S.W.2d 161, 164 (Tenn. *503 1994); State v. Porterfield and Owens, 746 S.W.2d 441, 444 (Tenn.1988).
The Court of Criminal Appeals distinguished these cases, noting that this case does not involve a "murder for hire." While this clearly is a distinction, it is not a difference that renders these cases wholly irrelevant for comparative proportionality review. Motive is merely one factor to be considered. Proof that the defendant had the authority to direct this murder without providing remuneration to the perpetrators does not mitigate his culpability.
The intermediate appellate court also distinguished this case on the basis that there was no evidence the murder was carefully planned. We disagree. The record establishes that the victim was held at the apartment several hours, and during this time, the defendant and other gang leaders met several times in the kitchen and also spoke several times on the telephone to discuss the victim's fate. At the defendant's direction, Phillips and Wilkins hand-selected gang members to take the victim from the apartment. This circumstantial evidence indicates that the victim's murder was planned by several gang members, including the defendant.
Another factor influencing the Court of Criminal Appeals's decision to find the sentence disproportionate was the lack of evidence indicating the defendant instructed other gang members how to commit the murder. Again, we disagree that this lack of evidence is unique. For example, there was no evidence in Owens to suggest that the defendant instructed Porterfield to bludgeon her husband to death with a tire iron. The lack of definitive evidence[18] suggesting the defendant told other gang members how to commit the murder does not render the death sentence comparatively disproportionate, although this is a fair point to argue as mitigation in a capital sentencing proceeding.
Although differences exist between this case and the similar cases listed above, we have previously indicated that comparative proportionality review "is not a search for proof that a defendant's death sentence is perfectly symmetrical." Bland, 958 S.W.2d at 665. Indeed, "no two defendants and no two crimes are precisely alike." State v. Bane, 57 S.W.3d 411, 429 (Tenn.2001). We are unable to conclude that this case is "plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed."
The Court of Criminal Appeals also based its finding of disproportionality on its conclusion that no rational basis justified imposing a death sentence upon the defendant and a sentence of life imprisonment without the possibility of parole upon Phillips. In so holding, the lower court relied upon this Court's decision in State v. Cauthern, 967 S.W.2d 726, 741 (Tenn. 1998), for the proposition that disparate sentences between co-defendants render the capital sentence disproportionate unless there is a rational basis for the disparate sentences. As the State points out, the disparate sentences at issue in Cauthern were initially imposed by the same jury. The intermediate appellate court also failed to note that this Court has emphasized and reiterated that a death sentence is not disproportionate "merely *504 because the circumstances of the offense are similar to those of another offense for which a defendant has received a life sentence." Austin, 87 S.W.3d at 465; State v. Hall, 976 S.W.2d 121, 135 (Tenn.1998). Furthermore, this Court has often stressed that a jury's isolated decision to afford mercy does not render a death sentence disproportionate, unless the death sentence is aberrant, i.e., the case, taken as a whole, is plainly lacking in circumstances consistent with other cases in which the death penalty has been imposed. As previously explained, the death sentence in this case is not aberrant.
The defendant's and Phillips's cases are extremely similar, as the State concedes. Nonetheless, differences significant to comparative proportionality review exist. Most importantly, Phillips's jury found only one aggravating circumstance that the murder was committed in the course of a kidnapping. Tenn.Code Ann. § 39-13-206(i)(7) (1997). Furthermore, although Phillips was the Hurt Village Gangster Disciples coordinator, the defendant ranked third in the citywide hierarchy of the Gangster Disciples and bears more of the responsibility for Green's murder. For all these reasons, we conclude that the defendant's sentence of death is not disproportionate to the sentence imposed in similar cases, considering both the circumstances of the crime and the defendant.
X. Conclusion
We have considered the entire record in this case and find that the sentence of death was not imposed in any arbitrary fashion, that the sentence of death is not excessive or disproportionate, and that the evidence supports the jury's finding of the statutory aggravating circumstance and the jury's finding that these aggravating circumstances outweighed mitigating factors beyond a reasonable doubt. We have also considered the defendant's remaining assignments of error and conclude that none warrant relief. With respect to issues not specifically addressed herein, we affirm the decision of the Court of Criminal Appeals, authored by Judge Joe G. Riley, and joined by Judge David Hayes and Judge John Everett Williams. The defendant's convictions and sentences are affirmed. The sentence of death shall be carried out as provided by law on the 11th day of May 2005 unless otherwise ordered by this Court or other proper authority. It appearing that the defendant is indigent, costs of this appeal are taxed to the State of Tennessee.
ADOLPHO A. BIRCH, JR., filed a concurring-dissenting opinion.
APPENDIX
(Excerpts of the Decision of the Court of Criminal Appeals)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 6, 2003 Session
STATE OF TENNESSEE v. GREGORY ROBINSON
Direct Appeal from the Criminal Court for Shelby County, No. 97-13179-80; James C. Beasley, Jr., Judge.
No. W2001-01299-CCA-R3-DD Filed August 13, 2003
JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT WILLIAMS, JJ., joined.
*505 OPINION
[Deleted: STATE'S PROOF GUILT PHASE]
[Deleted: DEFENSE PROOF GUILT PHASE]
[Deleted: JURY'S VERDICT GUILT PHASE]
[Deleted: STATE'S PROOF PENALTY PHASE]
[Deleted: DEFENSE PROOF PENALTY PHASE]
[Deleted: JURY'S VERDICT PENALTY PHASE]
ANALYSIS OF ISSUES PRESENTEDGUILT PHASE
I. DENIAL OF INDIVIDUAL AND SEQUESTERED VOIR DIRE OF THE VENIRE
The defendant claims that the trial court erred in denying his motion for individual, sequestered voir dire of the jury panel. The prevailing voir dire practice is to examine jurors collectively. State v. Austin, 87 S.W.3d 447, app. at 471 (Tenn.2002), cert. denied, ___ U.S. ___ (2003). There is no requirement in capital cases that death qualification of a capital jury be conducted by individual, sequestered voir dire. Id. (citing State v. Stephenson, 878 S.W.2d 530, 540 (Tenn.1994)). Moreover, as a general rule, the decision to allow individual voir dire of prospective jurors is within the discretion of the trial court. Stephenson, 878 S.W.2d at 540. The defendant has failed to show the trial court abused its discretion in denying his motion for individual, sequestered voir dire.
II. REJECTION OF BATSON CHALLENGE
The defendant contends that the trial court's conclusory rejection of a timely Batson challenge to the state's striking of five African-American members of the venire, without any contemporaneous findings and without requiring the state to proffer an explanation, warrants a remand for a hearing to determine whether a new trial should be granted.
During voir dire, seven jurors were excused by the state as a result of peremptory challenges. After their dismissal, the defense raised an objection and noted that five of these jurors were African-American. The trial court found there was no basis to declare that any of the challenges were based upon race.
A state's use of peremptory challenges to intentionally exclude jurors of the defendant's race violates the defendant's right to equal protection. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Court upheld this principle in Powers v. Ohio, but eliminated the requirement that the defendant and the potential juror share the same race. 499 U.S. 400, 415, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). A defendant seeking to raise a Batson claim must first make a prima facie showing of purposeful discrimination against a prospective juror. Batson, 476 U.S. at 93-94, 106 S. Ct. 1712. The defendant must establish "that a consideration of all the relevant circumstances raises an inference of purposeful discrimination." Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 903 (Tenn.1996). If a prima facie showing of purposeful discrimination is established, the burden then shifts to the state to establish a neutral basis for the challenge. Batson, 476 U.S. at 97, 106 S. Ct. 1712.
The trial court must give specific reasons for each of its factual findings in *506 ruling on peremptory challenges. Woodson, 916 S.W.2d at 906. This should include the reason the objecting party has or has not established a prima facie showing of purposeful discrimination. The trial court's findings are to be accorded great weight and will not be set aside unless they are clearly erroneous. Id.; see also Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (noting deference to the trial court is necessary relating to credibility).
The trial court found that the defendant had not made a prima facie showing of discrimination. In determining whether the defendant has established a prima facie case, the trial court may consider whether similarly situated members of another race were seated on the jury. State v. Stout, 46 S.W.3d 689, 711 (Tenn.) (citations omitted), cert. denied, 534 U.S. 998, 122 S. Ct. 471, 151 L. Ed. 2d 386 (2001). The trial court may also consider the demeanor of the attorney who exercised the challenge, which is often the best evidence of the credibility of proffered explanations. Id. at 711-12 (citations omitted).
In the instant case, the record reveals that the final jury consisted of six African-Americans and six Caucasians. At the motion for new trial, the court commented that the only reason advanced by the defense to establish a prima facie case was the number of strikes used against African-Americans. While the court conceded that a prima facie case may be established by numbers alone, the trial court further explained that was not done in the instant case. Indeed, the trial court stated:
... if all you're standing up and saying is ... numbers alone, that's my prima facie case, I stilland I know what the case law saysbut I'm still of the opinion that at the time of my observations, my being present, listening to the jurors testify, observing the demeanor of the jurors, watching and taking notes of what was going on, I was not convinced at that time that there was a systematic exclusion of African-Americans from this jury, and that was the basis for it; not strictly on numbers, but it was based on the overall circumstances of what was occurring in the courtroom.
We cannot conclude that the trial court's findings were clearly erroneous. See State v. Keen, 31 S.W.3d 196, app. at 227-29 (Tenn.2000) (holding there was no showing of purposeful discrimination where four African-American jurors were peremptorily challenged by the state), cert. denied, 532 U.S. 907, 121 S. Ct. 1233, 149 L. Ed. 2d 142 (2001). In light of the trial court's findings, we conclude this issue is without merit.
III. SUFFICIENCY OF THE EVIDENCE
The defendant contends the evidence was insufficient to support his convictions. We conclude the evidence was sufficient to support both convictions.
A. Legal Standard
In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Moreover, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id.
*507 Where sufficiency of the evidence is challenged, the relevant question for an appellate court 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 or crimes beyond a reasonable doubt. Tenn. R.App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn.1996). The weight and credibility of the witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim.App.1996).
The state's theory at trial was that the defendant was responsible for the actions of his fellow Gangster Disciples based upon the theory of criminal responsibility. It is undisputed that the defendant was not present at the murder scene. As applicable to the case at bar, a person is criminally responsible for the conduct of another if, "[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense." Tenn.Code Ann. § 39-11-402(2) (1997).
B. Analysis of Overall Sufficiency of the Evidence
In this case, it is without dispute that the victim was unlawfully removed or confined so as to substantially interfere with his liberty; it was accomplished with a deadly weapon; and the victim suffered serious bodily injury. Thus, an especially aggravated kidnapping was committed. See id. §§ 39-13-302(a), -305(a)(1), (4). It is further without dispute that the victim was intentionally killed with premeditation. Thus, a premeditated first degree murder was committed. See id. § 39-13-202(a)(1). The only issue relating to sufficiency of the evidence is whether the defendant was criminally responsible for the conduct of those who actually committed or consummated these offenses. See id. § 39-11-402(2).
We begin our detailed analysis of the evidence in this case by reiterating that our standard of examining the evidence in a light most favorable to the state includes "all reasonable and legitimate inferences that may be drawn therefrom." State v. Smith, 24 S.W.3d 274, 279 (Tenn.2000) (citing Cabbage, 571 S.W.2d at 835). Thus, we recognize that jurors may evaluate the evidence in light of their common experiences in life and their common sense. See Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 858-59 (1956).
Viewing the evidence in a light most favorable to the state, the evidence established the defendant was a high ranking Gangster Disciple. He was portrayed as chief of security for the entire city of Memphis. Upon his arrival at Black's apartment, he ordered fellow Gangster Disciples to "snag" the victim for "GD arrest." Several Gangster Disciples, in parade-like fashion, brought the victim before the defendant. The defendant initiated a beating of the victim by hitting him numerous times; others subsequently joined in the beating. The defendant demanded that the victim tell him the location of the Vice Lords. Reluctantly, the victim revealed a location. The defendant then ordered some Gangster Disciples to scout the location and return with their findings, which they did. The evidence further indicated that the defendant was angry upon learning that the Vice Lords were not at the location described by the victim. The defendant, Prentiss Phillips, and Kevin Wilkins were each part of a *508 telephone conversation with Kaos, who was superior in rank to the defendant. Immediately after this conversation, the defendant directed Phillips and Wilkins to each pick three men and take the victim "fishing." He further stated, "Y'all know what to do." Thus, it was reasonable for the jury to assume the defendant, Phillips, and Wilkins were all aware of Kaos's directive, and the defendant ordered that Phillips and Wilkins be responsible for carrying out that directive. Although Shipp thought the order to take the victim "fishing" only meant physical abuse, Shipp was not a part of the conversation with Kaos.
The jury could further infer that Wilkins, who had been a part of the phone conversation and knew the victim was to be killed, was ordered by the defendant to carry out the directive. One of the first things said to the victim at the park was from Wilkins, who was the ranking Gangster Disciple at the park and who asked the victim if he had any last words. The murder was then accomplished under Wilkins' direction.
As it relates to the charge of premeditated first degree murder, the state was required to establish beyond a reasonable doubt that the defendant in giving these orders had the specific intent that the victim be murdered. See Tenn.Code Ann. § 39-11-402(2). Viewing the evidence in a light most favorable to the state, we conclude a rational trier of fact could find the defendant and Wilkins got the directive from Kaos that the victim was to be killed; the defendant ordered Wilkins (and Phillips) to carry out the directive; and Wilkins, a subordinate of the defendant, personally supervised the murder. The jury could further rationally conclude from the evidence that the Gangster Disciples was an organization structured according to rank and that orders given by those of superior rank should be obeyed in order to avoid severe sanctions. Thus, the jury could rationally conclude Wilkins carried out the order of the defendant.
What started out as a rift between a Vice Lord and a Gangster Disciple culminated in the gathering of a throng of Gangster Disciples, heavily armed and bent on retaliation. The retaliation effort had as one of its leaders the defendant. The lower-ranking Gangster Disciples followed not only the defendant's orders, but his example of violence.
Accordingly, the evidence is sufficient to support the conviction for criminal responsibility for premeditated first degree murder.
As to the defendant's conviction for especially aggravated kidnapping, we conclude the evidence is sufficient. Viewing the evidence in a light most favorable to the state, the defendant ordered the victim to be brought to the apartment where numerous Gangster Disciples had weapons. The defendant severely beat the victim with his fist and a broom stick; others beat him as well. The defendant ordered that Green be taken upstairs where numerous gang members threatened him with weapons pointed at his head. The defendant ordered Green be taken "fishing" and told his fellow Gangster Disciples, "Y'all know what to do." Wilkins followed those orders, took the victim to Bellevue Park, and supervised the murder. This evidence is more than sufficient to support the defendant's conviction for especially aggravated kidnapping.
C. Accomplice Corroboration
The defendant argues that the evidence is insufficient because it consisted of uncorroborated accomplice testimony. Additionally, he asserts that the trial court failed to instruct the jury that (a) accomplice testimony cannot be corroborated by *509 evidence from another accomplice; (b) only a non-accomplice can corroborate the testimony of an accomplice; (c) Jarvis Shipp was an accomplice as a matter of law; and (d) the jury must decide whether Christopher James and Shaun Washington were accomplices.
1. Waiver
The state contends that the defendant has waived these issues for failing to submit proposed instructions on accomplice testimony. See State v. Anderson, 985 S.W.2d 9, 17 (Tenn.Crim.App.1997) (holding the failure to request accomplice instruction waives issue); State v. Foster, 755 S.W.2d 846, 848-49 (Tenn.Crim.App. 1988) (noting the defendant's responsibility to request instruction; failure constitutes waiver).
In instructing the jury regarding accomplice testimony, the trial court utilized the pattern jury instruction. See T.P.I. CRIM. 42.09 (4th ed.1995). The trial court further instructed the jury that they were to determine whether the witness, Jarvis Shipp, was an accomplice to the alleged crime. The pattern charge does not contain a specific provision that accomplice testimony cannot be corroborated by other accomplice testimony.
The record reflects the trial court advised the parties that it would be instructing on accomplice testimony. There were no special requests. After instructing the jury and prior to jury deliberations, there were no objections and no special requests. Tennessee Rule of Criminal Procedure 30(b) provides that the parties are to be given an opportunity to object to the content of jury instructions or the failure to give requested instructions; however, the failure to make objections in these instances does not prohibit them from being used as grounds in the motion for new trial. See Tenn. R.Crim. P. 30(b); State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn.1996). However, alleged omissions in the jury charge must be called to the trial judge's attention or be regarded as waived. State v. Haynes, 720 S.W.2d 76, 84-85 (Tenn. Crim.App.1986). In contrast to an erroneous instruction or the failure to give a requested instruction, defense counsel cannot sit on an objection to an omitted charge and allege it as a ground in the motion for new trial. Id.; State v. Stigall, No. 02C01-9610-CR-00371, 1998 WL 3340, at *1, 1998 Tenn.Crim.App. LEXIS 27, at *4 (Tenn.Crim.App. Jan. 7, 1998, at Jackson).
The jury instruction given by the trial court was accurate. The defendant has waived any alleged error for the failure to specifically charge the jury that accomplice testimony cannot be corroborated by the testimony of other accomplices. Further, we discern no plain error. See Tenn. R.Crim. P. 52(b).
2. Standard of Review
An accomplice is a person who "knowingly, voluntarily and with a common intent unites with the principal offender in the commission of a crime." State v. Allen, 976 S.W.2d 661, 666 (Tenn.Crim.App. 1997). Uncorroborated testimony of an accomplice-witness will not support a conviction. State v. Bane, 57 S.W.3d 411, 419 (Tenn.2001), cert. denied, 534 U.S. 1115, 122 S. Ct. 925, 151 L. Ed. 2d 888 (2002). Corroborating evidence is evidence "entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference not only that a crime has been committed but also that the defendant was implicated in it." Bigbee, 885 S.W.2d at 803 (citations omitted). The independent corroborative testimony must include some fact or circumstance which affects the defendant's identity. State v. Boxley, 76 *510 S.W.3d 381, 387 (Tenn.Crim.App.2001). In Bethany v. State, this court stated:
The question of who determines whether a person is an accomplice depends upon the facts of each case. When the facts of a witness's participation in a crime are clear and undisputed, it is a question of law for the court to decide. When such facts are in dispute or susceptible of an inference that a witness may or may not be an accomplice, it then becomes a question of fact for the jury to decide.
565 S.W.2d 900, 903 (Tenn.Crim.App.1978); see State v. Lawson, 794 S.W.2d 363, 369 (Tenn.Crim.App.1990).
3. Christopher James
The evidence established that Christopher James was a relatively new member of the Gangster Disciples and had no "rank" within the group. The evidence further established that, at the "aid and assist" meeting held at the apartment, James was punished for failing to take part in the earlier fight that initiated the chain of events culminating in the murder. Although he was present when Vernon Green was brought into the apartment, there is no evidence that James did anything other than sustain a beating for his failure to assist fellow gang members earlier that day. The proof fails to establish that James was an accomplice to the murder and kidnapping of Vernon Green.[1] Thus, the defendant's argument that the trial court should have submitted an instruction to the jury as to whether Christopher James was an accomplice is without merit.
4. Shaun Washington
The defendant contends Shaun Washington's identification should be considered accomplice testimony. Washington did not testify as a witness in this matter. Sergeant William Ashton testified that Christopher James identified the defendant in a photo line-up as the person whom James referred to as "Shaun." Defense counsel asked Sergeant Ashton on cross-examination if anyone else identified the defendant in the photo line-up. Sergeant Ashton, in response to this question, stated that Washington had identified the defendant as being present at the apartment on the night of the murder. There was no request that Washington be included in the accomplice instruction. This issue is waived.
[Deleted: 5. Jarvis Shipp]
D. Identification Evidence
Within his challenge to the sufficiency of the evidence, the defendant challenges the following identifications: (1) the identification made by Christopher James using a photograph array; (2) the identification made by Shaun Washington; (3) the testimony of Jarvis Shipp; and (4) the testimony of Nichole Black. With the exception of the challenge to Shipp's testimony, these issues are discussed in issue six, infra. Regarding Shipp, the defendant contends that his testimony is uncorroborated. However, we have concluded that the evidence sufficiently corroborated Shipp's testimony. Moreover, any conflicts between Shipp's testimony and his prior statement to police were thoroughly addressed on cross-examination.
*511 E. Testimony of Christopher James
The defendant alleges the testimony of Christopher James as to what he thought was going to happen to the victim when he left the apartment was "pure, baseless speculation" and should be excluded from consideration in this appeal. During direct examination of James, the following colloquy occurred:
Q: What did you hear him say?
A: "Y'all know what to do."
...
Q: Now, was this after they had beaten you up?
A: Yes, ma'am.
Q: What did you thinkwhat did you feel at this time was going on?
A: I really couldn't say.
Q: What did you think was going to happen to Vernon?
A: They was going to kill him.
No objection was made by the defendant. By failing to make a contemporaneous objection to testimony, a defendant waives appellate consideration of the issue. State v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim.App.2001); State v. Thompson, 36 S.W.3d 102, 108 (Tenn.Crim.App.2000). Accordingly, absent an objection, the statement was properly admitted as proof. State v. Stevens, 78 S.W.3d 817, app. at 849 (Tenn.2002), cert. denied, 537 U.S. 1115, 123 S. Ct. 873, 154 L. Ed. 2d 790 (2003). We further discern no plain error. See Tenn. R.Crim. P. 52(b).
[Deleted: F. Improperly Admitted Evidence]
G. Anthony Issue
The defendant contends his convictions for both premeditated first degree murder and especially aggravated kidnapping violate due process because the kidnapping was incidental to the murder. We disagree.
A separate conviction for kidnapping may violate due process when the kidnapping is "essentially incidental" to the accompanying felony conviction and is not "significant enough, in and of itself, to warrant independent prosecution." State v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991). In examining this issue, we must first determine whether the movement or confinement employed was beyond that which was necessary to commit the accompanying felony. State v. Dixon, 957 S.W.2d 532, 535 (Tenn.1997). If so, we must next determine whether the additional movement or confinement: "(1) prevented the victim from summoning help; (2) lessened the defendant's risk of detection; or (3) created a significant danger or increased the victim's risk of harm." Id.
We conclude the defendant's dual convictions for especially aggravated kidnapping and premeditated first degree murder do not violate due process. The movement and confinement of Green was beyond that necessary to commit the murder. Furthermore, the additional confinement and movement prevented Green from summoning help and lessened the risk of detection. Therefore, the especially aggravated kidnapping was not "essentially incidental" to the premeditated murder.
[Deleted: IV. PROSECUTORIAL INCONSISTENCY]
V. PROSECUTORIAL MISCONDUCT AND WITNESS JARVIS SHIPP
The defendant complains that prior to trial, Shipp attributed various acts to Prentiss Phillips, not to the defendant, and failed to identify the defendant as a co-perpetrator in these crimes. The defendant specifically alleges violations of Brady, 373 U.S. at 87,83 S. Ct. 1194 and Giglio *512 v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). The defendant asserts that the prosecution withheld information of:
(1) an informal "wink and a nod" ... in exchange for Shipp's testimony, by which the state would not seek the death penalty against him if he went to trial; and
(2) the transcript of a hearing held on Shipp's motion to suppress his own statement given to police (which had been denied), in which Shipp testified to a motive why he had confessed to the crime [which] was dramatically at odds with the claimed motives he (and the State's prosecutors) told the jury were his "courageous" reasons to do so (remorse for the victim and a desire to make amends to the victim's family).
The defendant claims he requested exculpatory information during pretrial discovery; the state failed to produce the information; and the information would have impeached Shipp's credibility.
The duty to disclose exculpatory evidence extends to all "favorable information" irrespective of whether the evidence is admissible at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn.2001). The prosecution's duty to disclose Brady material also applies to evidence affecting the credibility of a government witness, including evidence of any agreement or promise of leniency given to the witness in exchange for favorable testimony against an accused. Giglio, 405 U.S. at 154, 92 S. Ct. 763; Johnson, 38 S.W.3d at 56. While Brady does not require the state to investigate for the defendant, it does burden the prosecution with the responsibility of disclosing statements of witnesses favorable to the defense. State v. Reynolds, 671 S.W.2d 854, 856 (Tenn.Crim.App.1984). However, this duty does not extend to information that the defense already possesses, or is able to obtain, or to information not in the possession or control of the prosecution or another governmental agency. State v. Marshall, 845 S.W.2d 228, 233 (Tenn.Crim. App.1992).
In order to prove a due process violation under Brady, the defendant must show the state suppressed "material" information. Brady, 373 U.S. at 87, 83 S. Ct. 1194; State v. Edgin, 902 S.W.2d 387, 389 (Tenn.1995). Undisclosed information is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S. Ct. 3375 (citations omitted); Johnson, 38 S.W.3d at 58. Furthermore, a reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. To establish materiality, an accused is not required to demonstrate "by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Therefore, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id.
A. "Wink and a Nod" Agreement
During the defendant's trial, Jarvis Shipp testified on direct examination that the state had not made him any promises in exchange for his testimony and that he was testifying freely and voluntarily. On cross-examination, the following colloquy occurred between defense counsel and Shipp:
Q: ... Let me ask you this. Do you expect some typealthough there's *513 not a formal deal, do you expect some type of consideration for your testimony here today?
A: Yes, because the simple fact I'm facing the death penalty.
Q: Okay. So you do expect to gain something in your case by testifying here today, correct?
A: If it's in the progress[sic].
...
Q: Okay. So let me ask you this. You feel like by telling the story that you've told today that that could help you, correct?
A: Yes.
...
Q: And you feel that if you help them convict Mr. Robinson that they might not seek that death penalty against you, right?
A: No, because they stillI still could go to trial and they still get the death penalty.
Q: But you're hoping that they consider that, correct?
A: Yes.
Q: And you're hoping that that consideration will result in you [sic] not looking at a death-penalty situation, correct?
A: Correct.
The defendant asserts that, in two subsequent trials, i.e., State v. Antonio Jackson and State v. Prentiss Phillips, Jarvis Shipp acknowledged he had an agreement with the state. During co-defendant Antonio Jackson's trial, Shipp initially denied that he had an agreement with the state. Later, however, he stated that his attorney had informed him that if he pled guilty, he would receive a sentence of life with the possibility of parole or less. Shipp further stated that, by testifying at Jackson's trial, he was hoping for a better deal from the state. Later in co-defendant Prentiss Phillips' trial, Shipp admitted that he intended to enter a guilty plea as to his involvement in the events. He further stated, "I expect my life to be saved."
At the defendant's hearing on his motion for new trial, Shipp's attorney, Gerald Skahan, was called to testify regarding any agreement between his client and the state. The following colloquy occurred:
Q: Do you recall telling me when I asked what sort of agreement, if you had an agreement with the prosecutors, do you recall telling me basically it was a wink and a nod?...
A: I did use ... those words but in a context thatlike I testified to earlier,... I was fortunate enough to have somebody that was able to give testimony....
What my personal opinion is about the way it's done, I think everybody knows what's happening. I think the defense lawyers know. I think the prosecutors know. And I think the defendants know from being in jail. But that's the way it's done here.... And as for Giglio and stuff like that, I thinkthat's where I use it in the context of a wink and a nod; ... I think everybody knows what's going to happen, but there is never an offer conveyed. There is never something saying that we will specifically do this. It's just at the end of every one of these trials, it works out. And that's what I mean by a wink and a nod.
In its order denying the defendant's motion for new trial, the trial court found that at the time of the defendant's trial, Shipp did not have a "deal" with the state, although Shipp may have hoped his testimony would lead to a "deal." It further found the state did not withhold evidence *514 of a "deal" from the defendant, and the defendant thoroughly questioned Shipp at trial regarding a possible "deal." The trial court concluded the state did not violate Brady or Giglio. We agree with the trial court.
While Shipp may have hoped that his testimony would result in favorable treatment, the record does not establish that an agreement existed between the state and Shipp at the time of the defendant's trial. See Hartman v. State, 896 S.W.2d 94, 101-02 (Tenn.1995). Furthermore, the fact that Shipp later pled guilty to a lesser charge of facilitation of the offenses does not establish the existence of a prior agreement. See State v. Williams, 690 S.W.2d 517, 525 (Tenn.1985). Moreover, Shipp testified in this case that he indeed expected to receive favorable treatment in exchange for his testimony. In the absence of any proof that an agreement indeed existed at the time of the Shipp's testimony at the defendant's trial, this issue is without merit.
B. Transcript of Motion to Suppress
Next, the defendant asserts that the state, in violation of Brady, failed to provide a copy of the transcript from Shipp's hearing on the motion to suppress his statement to police. In that transcript, Shipp averred that his original statement to police was given out of fear that he would be placed in a pod with members of the Traveling Vice Lords. The defendant claims that Shipp's motive of fear in giving the statement was at odds with his alleged noble motive of testifying at trial, which was "to tell the truth on my behalf and on behalf of the victim's family."
In its order denying the motion for new trial, the trial court found this information would not have affected the verdict. We likewise see little benefit that would have been derived from pointing out to the jury that Shipp's motive for giving the pretrial statement was fear, whereas his alleged motive for testifying at trial was more noble. In fact, it was the defendant's position at trial that the contents of Shipp's pretrial statement, which did not mention any involvement by the defendant, was accurate.
Regardless, we conclude this transcript does not meet the Bagley test for materiality. The trial court noted Shipp testified he hoped to gain some favor with the state through his testimony. The trial court found that defense counsel had questioned Shipp extensively regarding inconsistencies between his statement to police and his testimony at trial. Accordingly, we conclude there was no reasonable probability that, had this evidence been disclosed, the result of the proceeding would have been different. See Bagley, 473 U.S. at 682, 105 S. Ct. 3375. The failure to reveal this transcript did not undermine the confidence in the outcome of the trial. Id.[2]
*515 The defendant also contends that by failing to provide the transcript to Shipp's suppression hearing at the conclusion of Shipp's testimony, the state violated Tennessee Rule of Criminal Procedure 26.2 by failing to provide what is commonly referred to as Jencks material.[3]
Rule 26.2(a) provides that:
After a witness other than the defendant has testified on direct examination, the trial court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
A "statement" of a witness includes "[a] written statement made by the witness that is signed or otherwise adopted or approved by the witness." Tenn. R.Crim. P. 26.2(g).
Numerous federal courts have held that prior testimony does not qualify as Jencks material because the witness's statements are a matter of public record. See, e.g., United States v. Chanthadara, 230 F.3d 1237, 1254-55 (10th Cir.2000) (holding that the prior trial testimony of an expert witness was not Jencks material), cert. denied, 534 U.S. 992, 122 S. Ct. 457, 151 L. Ed. 2d 376 (2001); United States v. Jones, 160 F.3d 473, 479 n. 5 (8th Cir.1998) (noting that matters of public record do not fall within the scope of the Jencks Act); United States v. Isgro, 974 F.2d 1091, 1095 (9th Cir.1992) (stating that "trial testimony is not within the scope of the Jencks Act"), cert. denied, 507 U.S. 985, 113 S. Ct. 1581, 123 L. Ed. 2d 148 (1993); United States v. Harris, 542 F.2d 1283, 1293 (7th Cir.1976) (same), cert. denied, 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779 (1977). The Tennessee rule is similar to the federal rule. See Fed.R.Crim.P. 26.2. Here the defendant contends he did not have ready access to this transcript. We need not determine this issue. For the same reasons we found the transcript did not meet the materiality test under Bagley, we conclude the defendant was not prejudiced by any alleged violation of Rule 26.2.
VI. IDENTIFICATION ISSUES
The defendant asserts that numerous errors regarding a photograph array and identifications warrant a new trial. We disagree.
A. Suggestive Photograph Array
The defendant first asserts that the trial court erred in allowing a suggestive photograph array into evidence over objection. We disagree.
1. Suppression Hearing
During the suppression hearing, the defendant presented the testimony of Charles Poole, who stated he was also arrested and charged with the murder of Green. Poole testified that after he was arrested, Sergeant Ashton questioned him and showed him a photograph array. Poole testified that when he did not identify anyone, Sergeant Ashton pointed toward the photograph of the defendant. Poole stated that although he did not identify anyone in the array, he believed the officer wanted him to identify the defendant's *516 photograph. Upon viewing the photograph array, Poole stated the array depicted five "dark-skinned" African-Americans and one "light skinned" African-American. He stated the defendant, who was depicted in photograph six, was the person with the light skin tone.
Sergeant William Ashton, the case coordinator, testified he prepared a photograph array and showed it to witnesses. He stated he arranged the array by using the defendant's photograph and other photographs of those who resembled the defendant. The officer then presented the array to various witnesses and asked them if they could identify anyone in the array. Sergeant Ashton testified he never suggested to witnesses whom they were to identify.
Sergeant Ashton described the defendant's skin tone as "light" and opined that all of the men depicted in the photograph array had light skin tones. He stated he showed the array to Shaun Washington and Christopher James, both of whom identified the defendant's photograph.
2. Trial Court's Findings
In denying the defendant's motion to suppress the identifications and photograph array, the trial court found that Poole's credibility was "about as narrow as it can get." The trial court then stated it examined the photograph array and described the array as six photographs of African-American males with either a "shaved head or very, very short cropped hair" and "lighter" skin tones. It found that the photograph array was not overly suggestive and that photograph six, which depicted the defendant, was not unique as compared to the other five photographs in the array. The trial court then concluded the photograph array was not suggestive, that the officer's actions were not suggestive, and the witnesses did not rely upon anything suggestive in making their identifications.
3. Standard of Review
The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this court unless the evidence contained in the record preponderates against them. State v. Ross, 49 S.W.3d 833, 839 (Tenn.2001). Absent a showing by the defendant that the evidence preponderates against the judgment of the trial court, this court must defer to the ruling of the trial court. State v. Cribbs, 967 S.W.2d 773, 795 (Tenn.), cert. denied, 525 U.S. 932, 119 S. Ct. 343, 142 L. Ed. 2d 283 (1998).
4. Analysis
Convictions based on eyewitness identification at trial following a pre-trial photographic identification will be set aside only if the photographic identification was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). However, a pre-trial confrontation procedure may be unlawful if, under the totality of the circumstances, the procedure is unnecessarily suggestive. Stovall v. Denno, 388 U.S. 293, 301-02, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).
Although it may be suggestive, an identification may satisfy due process as reliable and admissible when considering the totality of the circumstances. See State v. Brown, 795 S.W.2d 689, 694 (Tenn.Crim. App.1990). This court must consider five factors in determining whether the in-court identification is reliable enough to withstand a due process attack despite the suggestiveness of the pre-trial identification. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State *517 v. Strickland, 885 S.W.2d 85, 88 (Tenn. Crim.App.1993). These factors are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the time between the crime and the confrontation. Strickland, 885 S.W.2d at 88 (citing Biggers, 409 U.S. at 199, 93 S. Ct. 375).
Based upon our review of the photograph array, we conclude that the evidence does not preponderate against the findings of the trial court. Although the complexion of the defendant is somewhat lighter than the complexions of other persons in the array, it was not impermissibly suggestive. This issue is without merit.
[Deleted: B. Out-of-Court Identification by Shaun Washington]
[Deleted: C. Nichole Black's Testimony]
D. Failure to Grant a Continuance
The defendant challenges the trial court's refusal to grant an overnight continuance to permit him to obtain a "tattoo expert." At the motion for new trial hearing, this claim was expanded to include a witness regarding dental work. The defendant asserts that the denial prevented him from obtaining testimony which would have cast serious doubt upon the defendant's identity as the person who gave the orders on the night of the murder.
The defendant asserts he was surprised by the testimony of his witness, Officer Parker, who testified on cross-examination by the state that a tattoo could possibly be altered. The defendant sought permission to find a tattoo expert who could examine his tattoos. The trial court denied the request, noting the testimony was from a defense witness, the cross-examination should have been anticipated by the defendant, and the testimony, at most, indicated a mere possibility of an alteration. At the time the request was made, the defendant had not identified any particular expert nor had his tattoos been examined by someone to determine whether they exhibited signs of alteration.
At the motion for new trial hearing, defense counsel stated Jason Owens, a tattoo artist, "would have examined the defendant's tattoos, and he would have testified to the effect that [defense counsel had] represented and, also, as to his opinion as to whether there had been any cover-up or erasure of the defendant's tattoos." Defense counsel stated Owens would further testify that coverups or erasures are detectable. The defendant also presented a proffer from the records clerk of a dentist. The proffer indicated that the defendant had paid for gold crowns two months prior to the murder and gave no indication that the crowns contained letters or designs of the type attributed to "MacGreg." As the trial court noted, there had been testimony to the fact that gold caps are removable, and the proffer did not address that possibility.
The decision whether to grant a motion for a continuance is a matter of discretion for the trial court, the denial of which will not be overturned on appeal absent a clear showing the trial court abused its discretion to the prejudice of the defendant. State v. Melson, 638 S.W.2d 342, 359 (Tenn.1982), cert. denied, 459 U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983); Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim.App.1973). In order to establish an abuse of discretion, the complaining party must make a clear showing of prejudice as a result of the continuance being denied. State v. Teel, 793 S.W.2d 236, 245 (Tenn.), *518 cert. denied, 498 U.S. 1007, 111 S. Ct. 571, 112 L. Ed. 2d 577 (1990).
The offer to secure dental testimony was not a basis for the motion for a continuance. Since an appellant cannot change theories from the trial court to the appellate court, this aspect of the issue is waived. Alder, 71 S.W.3d at 303; State v. Dooley, 29 S.W.3d 542, 549 (Tenn.Crim. App.2000). As to the request for a tattoo expert, we note, as did the trial court, that the controverted testimony was elicited from Officer Parker, who was a defense witness. The witness only stated that it was possible that the defendant's tattoos could have been altered. No particular witness was identified at the time of the request for a continuance, nor had the defendant's tattoos been examined by a potential witness. The trial court had no assurance that a witness could be secured by the next day of trial. We also note that the basis of identification by the state's witnesses did not relate to tattoos or gold teeth. The issue of tattoos and gold teeth arose during the testimony of defense witnesses. Under these circumstances, we are unable to conclude the trial court abused its discretion in denying the request for a continuance.[4]
[Deleted: VII. USE OF THE VICTIM'S SKULL AND PHOTOGRAPHS DURING THE GUILT PHASE]
VIII. PROSECUTORIAL MISCONDUCT
The defendant alleges numerous instances of misconduct by the state. The state contends that in most instances the issue is waived due to the absence of a contemporaneous objection. The state further contends these allegations are otherwise without merit.
A. Witness Voucher
The defendant asserts that various prosecutorial comments made in relation to the testimony of Christopher James and Jarvis Shipp constituted improper vouching for their credibility and rendered his trial unfair. During the state's closing arguments, the prosecutor made comments regarding the honesty of both James and Shipp. The prosecutor also made comments during the direct-examination of Shipp and closing arguments regarding Shipp's bravery in testifying. The state responds, in part, that the defendant has waived this issue for failing to enter a contemporaneous objection. We agree with the state that the defendant has waived this issue due to his failure to proffer contemporaneous objections to the challenged remarks. See State v. Green, 947 S.W.2d 186, 188 (Tenn.Crim.App.1997); State v. Farmer, 927 S.W.2d 582, 591 (Tenn.Crim.App.1996); Tenn. R.App. P. 36(a). We further discern no plain error. See Tenn. R.Crim. P. 52(b).
B. The State Argued Facts not in Evidence
The defendant next complains of the following statement made by the prosecutor during closing argument: "[T]here was a murder, because there was an execution of a person, and the State has a duty to investigate that and do the best they can to determine who is responsible for that." The defendant argues this statement transforms the prosecutor's statements regarding the credibility of James and Shipp into "facts not in evidence." *519 The defendant further complains about the following argument made regarding Shipp: "[T]hat was a death sentence right then and there ... [h]e's got to watch his back everyday for the rest of his life." In addition, he challenges the following statement made in reference to both witnesses: "[Chris James and Jarvis Shipp] haven't conferred.... They haven't talked. They haven't met.... These men have not conferred in their testimony in any way." Finally, the defendant states that the prosecutor improperly argued that, "[Sepacus Triplett], now that he is in the realm of confinement with other people who are involved in the Gangster Disciples organization, all of a sudden now he has a clear memory about his involvement." The defendant contends no evidence exists in the record to support these statements.
Although we conclude all of these statements are reasonable inferences from the evidence, the defendant has waived any challenge to these issues by failing to raise a contemporaneous objection. See Tenn. R.App. P. 36(a). We further discern no plain error. See Tenn. R.Crim. P. 52(b).
C. The State Commented on the Defendant's Decision not to Testify
During closing arguments in the guilt phase, the prosecutor stated
[Jarvis Shipp] said, I'm doing this, I'm telling you the truth to help me, but also doing this to help the victim's family. Did you hear that from anybody else? anybody else who sat in this chair and said, I pled to this, you know, I was there?
Did anyone else exhibit any remorse? Did anyone say, I want to do the right thing. I want to doI want to assist this family in the grief that they're exhibiting, that they're feeling in this matter. No one else did.
The defendant now argues this was an improper remark on his election not to testify. See Griffin v. California, 380 U.S. 609, 613, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (holding prosecutor may not comment on the defendant's failure to testify). Although these statements appear to properly relate to an attack on gang members who testified for the defense, the failure to contemporaneously object waives the issue. See Tenn. R.App. P. 36(a). Further, we discern no plain error. See Tenn. R.Crim. P. 52(b).
D. The State Presented Irrelevant Evidence Regarding the Victim
During its case-in-chief, the state presented the testimony of Christina Green, the victim's sister. Ms. Green stated she and the victim had a "real close" relationship. She further stated she attended the victim's funeral and that it was a "closed casket." Defense counsel then objected, and the trial court sustained the objection, finding the information regarding the casket was not probative to the state's case-in-chief. The prosecutor then asked Ms. Green if she missed her brother, and she responded affirmatively.
The defendant asserts that Christina Green's testimony was irrelevant to the issue of guilt or innocence and was not introduced for any other purpose but to inflame the passions of the jury. However, other than the testimony regarding the victim's coffin which the trial court sustained, the defendant did not contemporaneously object to this testimony. Therefore, any issue regarding Ms. Green's testimony in its entirety is waived. See Tenn. R.App. P. 36(a).
Next, the defendant alleges Dr. Deering's remark that the shotgun wound to the buttocks would have been painful was *520 not relevant to a determination of guilt or innocence and only inflamed the jury. However, the defendant was charged with especially aggravated kidnapping, one element of which is serious bodily injury. See Tenn.Code Ann. § 39-13-305(a)(4). "Serious bodily injury" includes "extreme physical pain." Id. § 39-11-106(a)(34)(C). Accordingly, such testimony regarding the gunshot wound to the buttocks was relevant.
E. The State Made Improper Statements During Voir Dire
The defendant contends the state made improper statements to the jury during voir dire, which denied him a fair trial. During voir dire, the prosecutor, in discussing the different roles of the courtroom participants, stated:
On one matter that we all agree, we want a fair trial and impartial judicial proceeding. The defense wants that for their client, Mr. Robinson. But there's another person in this courtroom, ladies and gentlemen. Someone that you can't see. And that is the victim.
The defense objected and the trial court instructed the prosecutor to ask the jurors a question. The prosecutor then stated to the jury, "My question to you, ... is that you keep that in mind throughout all your deliberationsthere's one other person involved in this process." The defendant made no objection. The prosecutor then engaged in a lengthy discussion of the law and defined various legal terms.
The prosecutor's comments during voir dire had no effect on the result of the trial. These statements were minuscule compared to the lengthy voir dire. Furthermore, there is no indication that the prosecutor was acting with the intent to provoke unfair bias among the potential jurors. This issue lacks merit.
F. Victim's Identity
The defendant contends the state engaged in prosecutorial misconduct in seeking to suggest that he intended to obliterate the victim's identity despite the lack of supporting evidence and the trial court's instructions not to do so.
During the guilt phase of the trial, the state sought to introduce numerous photographs into evidence based upon its theory that the defendant intended that the victim's identity be obliterated. The trial court refused to admit the photographs based upon this theory. However, Sergeant Alvin Peppers testified that upon arriving at the scene, he was unable to identify any of the victim's features because "the face of the body was so mutilated." Upon objection by defense counsel, the trial court disallowed the introduction of a photograph depicting the victim's face due to its prejudicial effect but permitted Sergeant Peppers to testify regarding his observations while at the scene.
Prior to Dr. Deering's testimony, the trial court held a jury-out hearing to discuss photographs which would be introduced during the doctor's testimony. The trial court again prohibited the state from introducing photographs based upon this theory because no one had testified that the defendant had instructed the gang members to erase the victim's identity. However, the trial court further stated that the prosecutor could argue an inference based upon the evidence admitted.
We are unable to conclude the state engaged in prosecutorial misconduct. The trial court refused to admit numerous photographs based upon this theory. Furthermore, the prosecutor could properly argue an inference based upon Sergeant Peppers' testimony regarding the appearance of the victim at the scene and Dr. Deering's testimony regarding the location *521 and effect of the various gunshot wounds. This issue is without merit.
IX. JURY INSTRUCTIONS GUILT PHASE
The defendant claims that the trial court improperly charged the jury. Specifically, he alleges the jury instructions defining "intentional" and "knowing" conduct, direct and circumstantial evidence, and reasonable doubt were erroneous. We disagree.
Under the United States and Tennessee Constitutions, a defendant has a right to trial by jury. State v. Garrison, 40 S.W.3d 426, 432 (Tenn.2000). A defendant also has a right to a correct and complete charge of the law, so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions. Id. In evaluating claims of error in jury instructions, courts must remember that "`jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning.'" Vann, 976 S.W.2d at 101 (quoting Boyde v. California, 494 U.S. 370, 380-381, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)), cert. denied, 526 U.S. 1071 (1999). Therefore, we review each jury charge to determine if it fairly defined the legal issues involved and did not mislead the jury. See State v. Hall, 958 S.W.2d 679, 696 (Tenn. 1997), cert. denied, 524 U.S. 941, 118 S. Ct. 2348, 141 L. Ed. 2d 718 (1998).
A. Instruction on Intentionally and Knowingly
In instructing the jury on the elements of premeditated first degree murder, the trial court defined "intentionally" as, "A person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result...." In regard to second-degree murder, the trial court similarly defined "intentionally" and further instructed the jury as follows:
"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.
The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.
The defendant cites as error the trial court's instruction on "intentionally" for premeditated first degree premeditated murder and "knowingly" for second degree murder because they are result-of-conduct offenses. In support of his argument, the defendant relies upon this court's decision in State v. Page, 81 S.W.3d 781 (Tenn. Crim.App.2002), a decision filed long after the trial of this case. The defendant argues that this court's decision in Page requires reversal in the present case as the trial court committed the same error by instructing the jury in the disjunctive on the definition of "intentionally" and "knowingly." Id. at 788.[W]e conclude the instructions constituted harmless error. See State v. Dotson, No. M2001-01970-CCA-R3-CD, 2002 WL 31370471, at *4, 2002 Tenn.Crim.App. LEXIS 884, at *12 (Tenn.Crim.App. Oct. 21, 2002, at Nashville), perm. to app. denied (Tenn.2003).
B. Instruction on Direct and Circumstantial Evidence
The defendant challenges the trial court's use of the alternative pattern jury instruction on direct and circumstantial evidence. See T.P.I.CRIM. 42.03(a) (4th *522 ed.1995). It provides in pertinent part as follows:
Direct evidence is those parts of the testimony admitted in court which referred to what happened and was testified to by witnesses who saw or heard [or otherwise sensed] what happened first hand. If witnesses testified about what they themselves saw or heard [or otherwise sensed], they presented direct evidence.
Circumstantial evidence is all the testimony and exhibits which give you clues about what happened in an indirect way. It consists of all the evidence which is not direct evidence....
The defendant claims the instruction erroneously implies that "all evidence is direct evidence, except hearsay." Here, a "commonsense understanding of the instructions in the light of all that has taken place at the trial likely ... prevail[ed] over technical hairsplitting." Boyde, 494 U.S. at 381, 110 S. Ct. 1190. We conclude that there is no reasonable likelihood that the jurors interpreted the trial court's instructions so as to prevent proper consideration of direct and circumstantial evidence.
C. Reasonable Doubt Instruction
The defendant argues that the instruction provided by the trial court erroneously defined reasonable doubt. The trial court provided the following instruction on reasonable doubt:
Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a captious, possible or an imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the offense.
See T.P.I.CRIM. 2.03 (4th ed.1995).
Our courts have upheld the constitutionality of the language contained in this reasonable doubt instruction. See, e.g., State v. Bush, 942 S.W.2d 489, app. at 521 (Tenn.), cert. denied, 522 U.S. 953, 118 S. Ct. 376, 139 L. Ed. 2d 293 (1997); Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn. Crim.App.1994). Accordingly, this issue is without merit.
[Deleted: X. LESSERINCLUDED OFFENSES]
XI. JURY MISCONDUCT
The defendant complains that his right to an impartial jury was violated when juror Gina Boyd was untruthful during voir dire, and, despite the sequestration order, Boyd had contact with a person outside the jury.
A. Bias/Prejudice
During voir dire, Boyd stated she worked "intake" as a deputy jailer in Shelby County. She denied knowing the defendant or anything about the case. Boyd stated she would be able to be fair and impartial in hearing all the evidence. During the motion for new trial, Boyd testified that although there were times when she was in different areas of the jail, she did not recall seeing the defendant in the jail.
Boyd stated that during the trial, she noticed an arm band on the defendant's wrist and realized he was an inmate, although she still did not know where he was housed. She did not return to the jail until after the conclusion of the trial. Boyd maintained she never had supervisory authority over the defendant at the Shelby County Jail.
*523 Defense counsel subsequently presented jail records which established that on October 8, 1998, Boyd was temporarily assigned to work in the pod where the defendant was housed for a period of three hours. Although the duty log sheet reflects that a head count may have been taken while Boyd was working in the pod, there is no indication as to who took the head count.
The burden is on the defendant to establish a prima facie case of juror bias. State v. Akins, 867 S.W.2d 350, 355 (Tenn.Crim. App.1993). If a juror intentionally fails to disclose information on voir dire which might indicate partiality, a presumption of prejudice arises. Id.
The trial court found there was no "nexus" shown to exist between the defendant and the juror. The trial court further found there was no indication Boyd recognized the defendant. We conclude that the trial court's ruling is supported by the evidence. This issue is without merit.
B. Separation of Sequestered Jury
At the hearing on the motion for new trial, juror Boyd testified that after being selected for the jury, she advised her mother she was selected for a "profile" murder case and was upset. Defense counsel stated they had interviewed the juror's mother, who stated her daughter came home in order to secure clothing for her sequestration and said she was "extremely upset" in having to serve on "a high profile gangster case."
The trial court found that juror Boyd had already testified she was upset and told her mother she was sitting on a "profile" murder case. Thus, the court saw no relevance in the mother's proposed testimony. The defendant made no formal proffer of the mother's testimony.
Although we question whether this issue has been properly preserved due to the failure to make a formal proffer of the mother's proposed testimony, we find it without merit. Once separation of a sequestered jury has been shown by the defendant, the state has the burden of showing that such separation did not result in prejudice to the defendant. State v. Bondurant, 4 S.W.3d 662, 672 (Tenn.1999). Here, the record supports the finding by the trial court that there was no showing of prejudice even if the mother testified in accordance with defense counsel's declarations. This issue lacks merit.
XII. THIRTEENTH JUROR/JUDGMENT OF ACQUITTAL
The defendant asserts that the trial court, acting in its capacity as the thirteenth juror, should have granted a new trial because the guilty verdicts were contrary to the weight of the evidence. Alternatively, he asserts that the trial court should have granted his motion for judgment of acquittal.
Tennessee Rule of Criminal Procedure 33(f) provides that "[t]he trial court may grant a new trial following a verdict of guilty if it disagrees with the jury about the weight of the evidence." When a trial court makes a determination following Rule 33(f), the court is acting as thirteenth juror. See State v. Gillon, 15 S.W.3d 492, 500 (Tenn.Crim.App.1997). In the instant case, the trial court expressly approved the verdict as thirteenth juror in the order overruling the motion for new trial. Contrary to the defendant's argument, the trial court is not required to delete from its consideration evidence that might later be found to be inadmissible.
The defendant also argues that the trial court erred by failing to grant his motion for judgment of acquittal. See Tenn. *524 R.Crim. P. 29. This court has noted that "[i]n dealing with a motion for a judgment of acquittal ... the trial judge is concerned only with the legal sufficiency of the evidence and not with the weight of the evidence." State v. Hall, 656 S.W.2d 60, 61 (Tenn.Crim.App.1983). The standard for reviewing the denial or grant of a motion for judgment of acquittal is analogous to the standard employed when reviewing the sufficiency of the convicting evidence after a conviction has been imposed. See State v. Ball, 973 S.W.2d 288, 292 (Tenn.Crim.App.1998). Thus, our review of this issue is encompassed within our previous review of the sufficiency of the evidence.
[Deleted: XIII. CUMULATIVE ERROR]
XIV. SENTENCE FOR ESPECIALLY AGGRAVATED KIDNAPPING
The defendant does not challenge the length of his twenty-five-year sentence for especially aggravated kidnapping. However, he argues the trial court's order that it run consecutively to the sentence of death is flawed in that the trial court failed to make the requisite findings for consecutive sentencing. See State v. Imfeld, 70 S.W.3d 698, 708-09 (Tenn.2002); State v. Lane, 3 S.W.3d 456, 460 (Tenn.1999); State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.1995).
A trial court may impose consecutive sentencing upon a determination that one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exist. This section permits the trial court to impose consecutive sentences if the court finds, among other criteria, that "the defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high." Tenn.Code Ann. § 40-35-115(b)(4). However, before ordering the defendant to serve consecutive sentences on the basis that he is a dangerous offender, the trial court must find that the resulting sentence is reasonably related to the severity of the crimes and necessary to protect the public against further criminal conduct. See Imfeld, 70 S.W.3d at 708-09; Wilkerson, 905 S.W.2d at 939.
Based on our review of the record, we conclude the trial court's findings parallel the requirements of the statute addressing consecutive sentencing and Wilkerson. See Tenn.Code Ann. § 40-35-115(b)(4); Wilkerson, 905 S.W.2d at 938-39. The trial court imposed consecutive sentencing based on its finding that the defendant was a dangerous offender. It further found the resulting sentence was reasonably related to the severity of the crimes due to the manner in which the victim was beaten and humiliated prior to his death. The trial court also specifically found society needed to be protected from the defendant. The trial court's findings are supported by the record based on the defendant's conduct.
[Deleted: ANALYSIS OF ISSUES PRESENTEDPENALTY PHASE]
[XV. CHALLENGES TO THE (i)(5) AND (i)(7) AGGRAVATORS]
The defendant challenges the constitutionality of both the (i)(5) and (i)(7) aggravating factors. See Tenn.Code Ann. § 39-13-204(i)(5), (7). We disagree with the defendant's contentions.
A. (i)(5) AggravatorUnconstitutionally Vague and Overbroad
The defendant argues that the "heinous, atrocious, or cruel" aggravator is vague and overbroad. However, our supreme court has rejected this argument. State v. *525 Keen, 31 S.W.3d 196, 211 (Tenn.2000), cert. denied, 532 U.S. 907, 121 S. Ct. 1233, 149 L. Ed. 2d 142 (2001).
He further asserts that the jury instruction, as given, is not a unitary instruction. Our supreme court has previously stated that the phrase "especially heinous, atrocious, or cruel" is a unitary concept, State v. Van Tran, 864 S.W.2d 465, 479 (Tenn. 1993), cert. denied, 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994), which "may be proved under either of two prongs: torture or serious physical abuse," Keen, 31 S.W.3d at 209 (citations omitted). Further, our state supreme court has previously found the defendant's argument that the jury charge deprived him of a unanimous jury verdict to be without merit. State v. Sims, 45 S.W.3d 1, 18 (Tenn.), cert. denied, 534 U.S. 956, 122 S. Ct. 357, 151 L. Ed. 2d 270 (2001).
B. (i)(5) AggravatorFailing to Meaningfully Narrow Pool
The defendant argues that the (i)(5) aggravator, either alone or combined with the (i)(7) aggravator, fails to meaningfully narrow the class of death eligible defendants. The Tennessee Supreme Court has rejected this argument. See Terry v. State, 46 S.W.3d 147, 159 (Tenn.), cert. denied, 534 U.S. 1023, 122 S. Ct. 553, 151 L. Ed. 2d 428 (2001).
[Deleted: C. (i)(5) and (i)(7) Aggravators Vicarious Application]
XVI. DEFENDANT'S PRIOR ARREST
The defendant next asserts the trial court erred in failing to grant a mistrial when, during the sentencing phase, the state improperly asked a defense witness about the defendant's "prior arrest." The defendant presented his sister's testimony concerning his relationship with his family. On cross-examination, the state asked the defendant's sister whether she was aware of the defendant's prior arrest. The trial court sustained the defendant's objection and instructed the jury to disregard the question and answer.
Although we have difficulty understanding why a prosecutor would ask such a question in the penalty phase of a capital trial without prior court approval, we fail to find any resulting prejudice in light of the trial court's prompt curative instruction.
XVII. PREJUDICIAL INFORMATION REACHING THE JURY
A. List of Aggravating Circumstances
The defendant argues that the trial court improperly read to the jury all the possible aggravating circumstances during jury selection and not just the two relied upon by the state. The record reflects that the trial court did recite to the venire during the jury selection process the entire list of available statutory aggravating circumstances.
It is error for the trial court to instruct the jury on inapplicable aggravating circumstances. State v. Blanton, 975 S.W.2d 269, 281 (Tenn.1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1118, 143 L. Ed. 2d 113 (1999). However, the entire list of aggravating circumstances was not submitted to the jury as part of the instructions prior to deliberations. It was simply part of the explanatory portion of the trial court's discussion with the venire. At the close of the proof at the sentencing phase, the jury was properly instructed only as to the two aggravating factors relied upon by the state. This issue is without merit.
B. Use of Especially Aggravated Kidnapping to Enhance Punishment
The defendant complains that the trial court permitted the prosecution to improperly *526 suggest that the felony murder aggravator, which was based upon the underlying especially aggravated kidnapping, should be given extra weight against any mitigators. Specifically, the defendant cites to the state's argument, "You've already come to this determination that there was, indeed, an especially aggravated kidnapping and that there was, indeed, a murder. The other one is the heinous, atrocious, and cruel." This argument is misplaced. The prosecution was merely reiterating to the jury that they had found during the guilt phase the elements of especially aggravated kidnapping, the underlying felony in the (i)(7) aggravator.
The defendant also argues that the use of the same "serious bodily injury" to the victim to enhance kidnapping to especially aggravated kidnapping and to apply the (i)(7) aggravator was "double counting," which violated double jeopardy. Initially, we note that the felony murder aggravator is triggered by a murder in perpetration of a "kidnapping"; it is not required to be an "especially aggravated kidnapping." See Tenn.Code Ann. § 39-13-204(i)(7). Regardless, there is no double jeopardy violation. See State v. Stout, 46 S.W.3d 689, 706 (Tenn.), cert. denied, 534 U.S. 998, 122 S. Ct. 471, 151 L. Ed. 2d 386 (2001).
C. Failure to Limit the State's Aggravators to (i)(5)
The defendant asserts that the trial court improperly permitted the state to rely upon two aggravating circumstances after defense counsel had detrimentally relied upon the state's opening argument of the penalty phase indicating it was relying upon only the (i)(5) aggravator. The state indeed only mentioned the "heinous, atrocious, or cruel" aggravator in its opening statement. However, prior to the defendant's proof, the trial court heard argument on this issue and ruled the state was not limited to only one aggravating factor. It further noted the state had given proper notice of both aggravators. We agree with this ruling and discern no undue prejudice to the defendant.
XVIII. PROHIBITION FROM CONSIDERING MITIGATING EVIDENCE
The defendant contends the trial court unconstitutionally prevented the sentencing jury from considering relevant mitigating evidence by excluding consideration of evidence of the defendant's character and record.
A. Instruction to Jury Regarding Mitigating Factors
The defendant complains of the following instruction regarding consideration of mitigating evidence:
Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing; that is, you shall consider any aspect of the circumstances of the offense favorable to the defendant which is supported by the evidence.
The defendant asserts that by failing to instruct the jury that it may also consider "any aspect of the defendant's character or record," this instruction erroneously limited the jury to mitigating evidence related to the circumstances of the offense, and, in effect, the jury was instructed not to consider any evidence related to the defendant's character or record. The language suggested by the defendant is in the pattern jury instruction but was inadvertently omitted by the trial court. See T.P.I. CRIM. 7.04(c) (4th ed.1995); see also id. (7th ed.2002).
A jury instruction on mitigating circumstances may be found "prejudicially erroneous" *527 only if "`it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.'" State v. Reid, 91 S.W.3d 247, app. at 308 (Tenn.2002) (quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn.), cert. denied, 522 U.S. 999, 118 S. Ct. 567, 139 L. Ed. 2d 407 (1997)). In the instant case, we conclude that the instructions provided by the trial court when viewed in their entirety fairly submitted to the jury the legal issues. Accordingly, the omission in the trial court's instruction did not prejudice the defendant.
B. Burden of Proving Mitigators
The defendant asserts the failure to instruct the jury that he did not have the burden of proof as to any mitigating factors was prejudicial. The jurors were instructed that the state had the burden of proving beyond a reasonable doubt any aggravating factor. They were further instructed there was no requirement for unanimity with respect to any particular mitigating factor. Upon reading the instructions as a whole, we fail to conclude the alleged omission misled the jury.
C. Closing Argument by the State
The defendant next objects to a portion of the state's closing argument during which the prosecutor asserted it was "patently offensive" to argue that the defendant's life should be spared because of his children and that such a plea was equally offensive in view of the defendant's lack of remorse. These statements were made during the state's rebuttal closing following the defendant's plea for mercy based upon his family support and potential for rehabilitation. The trial court cautioned the prosecutor after the defense objected to these statements. The trial court further instructed the jury:
Ladies and Gentlemen, let me say to you that the appearance, or lack of appearance, on behalf of Mr. Robinson of any remorse is not a factor for you to consider in determining what the punishment in the case should be....
Lack of remorse is not a statutory aggravating circumstance, and it is not proper rebuttal because the defendant did not argue his remorse as a mitigating factor. However, the jury is presumed to follow the curative instruction of the trial court. State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim.App.1994). Accordingly, although the prosecutor erred, such error is harmless in light of the curative instruction.
D. Trial Court's Limitation on the Defendant's Testimony
The defendant complains he was prevented from presenting evidence of his innocence at the penalty phase by virtue of an in limine order. Specifically, the defendant refers to the trial court's ruling regarding his statement given outside the presence of the jury at the beginning of the sentencing phase. During this jury-out hearing, the defendant asserted he was wrongfully convicted. He also stated he did not receive a fair trial due to the admission of improper testimony, which the jury did not disregard. He further alluded to various instances of misconduct by a particular juror and improper removal of evidence from the courtroom by the prosecutor. In response to these statements, the trial court made the following ruling:
I'm not going to allow him to testify about the entire case in front of the jury, whether he, if he wants to testify he got a fair trial, or didn't get a fair trial and on all these other statements he wants to make. That may be proper, but I'm not going to allow him to get up there to attack a particular juror, so that's the basis for my decision.
*528 The defendant subsequently testified but made no reference to the alleged unfairness of his trial. The defendant has cited no authority indicating a defendant has the right to testify that he did not receive a fair trial and verbally attack jurors. Nor do we find such attacks to be proper residual doubt testimony. "Residual doubt evidence" generally consists of proof at the sentencing phase indicating the defendant did not commit the offense, notwithstanding the guilty verdict. State v. McKinney, 74 S.W.3d 291, 307 (Tenn.), cert. denied, 537 U.S. 926, 123 S. Ct. 321, 154 L. Ed. 2d 219 (2002); State v. Hartman, 42 S.W.3d 44, 55-56 (Tenn.2001). Although the defendant had the right to proclaim his innocence, we are unable to conclude that he was prevented from doing so by virtue of the trial court's ruling.
E. Other Errors
The defendant asserts numerous errors during the penalty phase regarding closing arguments and the jury instructions which related to mitigating circumstances. We have reviewed the defendant's assertions and find the defendant is not entitled to relief on any of these issues.
XIX. ADMISSION OF PHOTOGRAPH DURING PENALTY PHASE
The defendant contends that the trial court erred in admitting a photograph depicting a detailed and close-up view of the gruesome wounds to the victim's face during the penalty phase. Although the trial court refused to admit the photograph at the guilt phase, the court permitted its introduction at the penalty phase, advising the jury to consider it only for the purpose of determining whether the crime was heinous, atrocious, cruel, or constituted torture.
Photographs depicting a victim's injuries have been held admissible to establish torture or serious physical abuse under aggravating circumstance (i)(5). See, e.g., State v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994) (photographs depicting the victim's body, including one of the slash wounds to the neck, which was "undeniably gruesome," were relevant to prove that the killing was "especially heinous, atrocious, or cruel" and were admissible for that purpose), cert. denied, 516 U.S. 829, 116 S. Ct. 99, 133 L. Ed. 2d 53 (1995). The photograph in question accurately depicts the nature and severity of the injuries inflicted upon the victim. This evidence was relevant to the state's proof of the "heinous, atrocious, or cruel" aggravating circumstance. The decision to admit this photograph was not an abuse of discretion.
XX. PROSECUTOR'S ARGUMENTS
The defendant complains the state attempted to suggest the defendant intended to obliterate the victim's identity despite the fact there was no evidence to that effect, and the trial court repeatedly instructed the state not to do so. The defendant references the following argument of the state: "This was an extortion of his whole identity. His whole face, his identity. The aggravator we've proven is that there was a felony involved and that this was heinous, atrocious, and cruel." We discern no error regarding this statement.
XXI. JURY INSTRUCTIONS DURING SENTENCING
The defendant asserts the written verdict form misstated the law and allowed the jury to impose the death penalty without requiring the state to prove the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. At issue is that portion of the charge setting forth the requirements authorizing *529 a sentence of death. The trial court quoted the pattern jury charge verbatim. See T.P.I.CRIM. 7.04(c) (4th ed.1995); see also id. (7th ed.2002) (containing identical language). We are unable to conclude this charge misled the jury.
The defendant further contends the trial court erred by failing to define the "knowing" mens rea required for the felony murder aggravator. See Tenn.Code Ann. § 39-13-204(i)(7). If the court erred, the error was harmless.
[Deleted: XXII. EXISTENCE OF AGGRAVATING FACTORS]
[Deleted: XXIII. PROSECUTORIAL INCONSISTENCIES AND THE DEATH PENALTY]
[Deleted: XXIV. APPRENDI V. NEW JERSEY]
XXV. THIRTEENTH JUROR PENALTY PHASE
The defendant argues that the trial court, acting in its capacity as "thirteenth juror" pursuant to Tennessee Rule of Criminal Procedure 33(f), should have granted a new sentencing hearing since the jury's death verdict was contrary to the weight of the evidence. As previously indicated in this opinion, the trial court expressly approved the verdict as thirteenth juror in its order overruling the motion for new trial. The order specifically referred to the convictions as well as the penalty of death. This issue lacks merit.
XXVI. CONSTITUTIONALITY OF THE TENNESSEE DEATH PENALTY STATUTE
The defendant contends our death penalty statute is unconstitutional. The Tennessee death penalty statute has been upheld repeatedly. See, e.g., State v. Reid, 91 S.W.3d 247, app. at 312-14 (Tenn.2002); State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519 U.S. 847, 117 S. Ct. 133, 136 L. Ed. 2d 82 (1996).
The defendant also argues death by lethal injection is unconstitutional. While the Tennessee Supreme Court has not expressly addressed this issue, see State v. Suttles, 30 S.W.3d 252, 264 (Tenn.), cert. denied, 531 U.S. 967, 121 S. Ct. 401, 148 L. Ed. 2d 310 (2000), such challenges have been rejected by other courts. See Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th Cir.1997), cert. denied, 523 U.S. 1082, 118 S. Ct. 1533, 140 L. Ed. 2d 683 (1998); State v. Webb, 252 Conn. 128, 750 A.2d 448, 458, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); and State v. Hinchey, 181 Ariz. 307, 890 P.2d 602, 610, cert. denied, 516 U.S. 993, 116 S. Ct. 528, 133 L. Ed. 2d 434 (1995). We likewise conclude that lethal injection is not constitutionally prohibited.
[Deleted: XXVII. COMPARATIVE PROPORTIONALITY REVIEW]
[Deleted: REMAND]
[Deleted: CONCLUSION]
ADOLPHO A. BIRCH, JR., J., concurring and dissenting.
I concur in the conclusion of the majority that Robinson's convictions should be affirmed. As to the sentence of death, however, I continue to adhere to my views, previously expressed in a long line of dissents, that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See Tenn. Code Ann. § 39-13-206(c)(1)(D) (1995 Supp.). I have repeatedly expressed my displeasure with the current protocol since the time of its adoption in State v. Bland, *530 958 S.W.2d 651 (Tenn.1997). See State v. Davis, 141 S.W.3d 600, 632 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Berry, 141 S.W.3d 549, 590 (Tenn. 2004) (Birch, J., concurring and dissenting); State v. Holton, 126 S.W.3d 845, 872 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn.2003) (Birch, J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn.2003) (Birch, J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn.2002) (Birch, J., concurring and dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn.2002) (Birch, J., dissenting); State v. Stevens, 78 S.W.3d 817, 852 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. McKinney, 74 S.W.3d 291, 320-22 (Tenn.2002) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431-32 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn.2001) (Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn.2001) (Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 233-34 (Tenn.2000) (Birch, J., dissenting). As previously discussed, I believe that the three basic problems with the current proportionality analysis are that: (1) the proportionality test is overbroad,[1] (2) the pool of cases used for comparison is inadequate,[2] and (3) review is too subjective.[3] I have previously discussed, in depth, my perception that these flaws undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). I continue to adhere to my view that the current comparative proportionality protocol is woefully inadequate to protect defendants from the arbitrary or disproportionate imposition of the death penalty.[4]
But beyond the foregoing, which addresses proportionality review in general, the number of participants in this offense and the wide disparity in the sentences imposed in this case invite a yet more specific scrutiny. Of the four others prosecuted *531 for this offense, only Robinson received the death penalty. Prentiss Phillips was convicted of first-degree murder and especially aggravated kidnapping and received sentences of life without parole for the murder, plus twenty-five years, respectively.[5]See State v. Phillips, 76 S.W.3d 1 (Tenn.Crim.App.2001), perm. app. denied (Tenn.2001). Antonio Jackson was convicted of facilitation of first-degree murder and especially aggravated kidnapping and received sentences of twenty-five years on each of those offenses, to be served consecutively. See State v. Jackson, 52 S.W.3d 661 (Tenn.Crim.App.2001), perm. app. denied (Tenn.2001). Kevin Wilkins' conviction for first-degree murder (and life without parole sentence) was reversed on appeal for insufficient evidence, leaving him with a single conviction for especially aggravated kidnapping, although it is evident from the testimony in this record that he was the person who actually fired the fatal shots into Vernon Green's body. See State v. Kevin Wilkins, No. W1999-01462-CCA-MR3-CD, 2000 WL 1229156 (Tenn.Crim.App. at Jackson, Aug. 18, 2000), perm. app. denied (Tenn. 2001).[6]
Of course, a death sentence for one defendant is not rendered arbitrary, excessive or disproportionate merely because another defendant in the same case has received a sentence less than death.[7] But here, the arbitrary nature of the sentencing process becomes strikingly manifest. Thus, I am constrained to wholeheartedly agree with the conclusion reached by the Court of Criminal Appealsthat no rational basis exists to distinguish Robinson's sentence of death from the lesser sentences imposed upon the other defendants. Accordingly, I deem Robinson's sentence to be arbitrary, excessive, and disproportionate.
In light of the foregoing, I respectfully dissent from that portion of the majority opinion that affirms the imposition of the death penalty upon Gregory Robinson and concur in the affirmance of his convictions.
NOTES
[1] Witnesses at trial also referred to this gang as the Traveling Vice Lords.
[2] The park previously had been known as Bellevue Park.
[3] According to Shipp, James actually was beaten by twelve individuals during the six minutes, six seconds time period. Because he was a "big guy" the first six individuals "got tired" and "stopped hitting on him." At the three minute, three second mark, Phillips selected six other individuals, to continue the beating, one of whom was Shipp.
[4] For purposes of clarity, we will consistently use the reference MacGreg.
[5] Tenn.Code Ann. § 39-13-204(i)(5), (7) (1997).
[6] Despite reversing the defendant's conviction and death sentence, the Court of Criminal Appeals considered all the issues raised by the defendant on appeal as well as the issues appellate courts are mandated by statute to consider in capital cases. Thus, this case need not be remanded to the Court of Criminal Appeals for further consideration, and we have considered all the issues raised by the defendant as well as the mandatory statutory review issues and have concluded the convictions and sentences should be affirmed.
[7] In Burns this Court indicated the trial court should provide a jury instruction on solicitation at the new trial, even though the offense had been completed. However, this portion of Burns has been clarified in the later cases of Ely and Marcum. These cases plainly explain that instructions are not required on either solicitation or attempt where the evidence clearly establishes completion of the charged offense.
[8] We note in this regard that the skull was not introduced into evidence and therefore was never given to the jury for inspection.
[9] To establish unfair prejudice, the defendant points out that a juror experienced a migraine headache during Dr. Deering testimony and was excused from the jury after medical personnel examined her. The defendant's assertion is without merit. We agree with and set out below the trial court's decision on this issue.
In regard to the juror referred to by the Defendant, she experienced a migraine headache and requested Darvocet (an extremely powerful painkiller available only by prescription) for her pain. The requested medicine was unavailable to the Court, and after being examined by a doctor who confirmed that the juror did indeed have a migraine, the juror was dismissed due to the fact that the doctor stated it would take approximately two to three hours for the migraine to subside. The juror in no way, shape or form indicated or in any way implied that the skull contributed to the onslaught of her condition. The juror had obviously experienced migraine headaches before, given that she normally took Darvocet to control these headaches. The Defendant has offered no proof whatsoever that the demonstration of the skull had any connection to the juror's migraine. The Defendant does however, make much of the fact that this juror wrote the word "pain" on her notepad, and asserts that she held it up for other jurors to see, and that this action prejudiced the jury. The actions of this juror were made known to this Court during trial. This Court questioned two jurors in regard to this incident. One juror stated that she had not seen any such note. Another juror testified that she had seen it, stating, "It said, pain. P-A-I-N. Her head was hurting real bad. And she just wrote pain on it and held it up." It is obvious to this Court that the word pain was in reference to the migraine, and that the members of the jury who saw this note also understood the reference. Accordingly, this Court finds that the probative value of the skull was not outweighed by the danger of unfair prejudice. This issue is without merit.
[10] Exhibit 8 depicts the injury to the victim's buttocks. Exhibit 9 depicts the injury to the victim's back.
[11] The appeal in this case has been delayed because the record was lost and had to be reconstructed and because unopposed motions requesting extensions have been granted.
[12] See, e.g., Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).
[13] Having so concluded, we need not and do not consider the State's assertion that, even if such Due Process claims exist, such claims should be raised in a post-conviction petition not on appeal and the State's assertion that the Court of Criminal Appeals erred in adopting and applying the analytical framework articulated by the Eighth Circuit Court of Appeals. However, based upon our finding, we reject the defendant's assertion that the prosecution failed to disclose affirmative exculpatory evidence that Phillips was the highest ranking gang member and that Phillips was ultimately responsible for the murder.
[14] The defendant also challenged the consecutive sentences imposed for his especially aggravated kidnapping conviction. In this Court, the defendant filed a letter of supplemental authority relying upon Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to support his challenge. The defendant argues that pursuant to Blakely and Apprendi, he was entitled to a jury trial on the factors supporting consecutive sentencing. The State did not respond. The record reflects that the defendant did not rely upon Apprendi in the trial court or in the Court of Criminal Appeals in support of this claim, nor did he argue in the lower courts that a jury had to make the consecutive sentencing findings. We note that several courts have rejected the defendant's contention and held that Blakely and Apprendi do not apply to the decision to impose consecutive sentences. See People v. Sykes, 120 Cal. App. 4th 1331, 16 Cal. Rptr. 3d 317, 327 (2 Dist.2004) (citing cases).
[15] The statutory language provides: "[t]he defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during his act of murder." Tenn.Code Ann. § 39-2-203(i)(3) (1982 & Supp.1986).
[16] Johnson, 38 S.W.3d at 63 n. 17 ("While we formally adopt the method used by the Owens Court in analyzing this issue, we do not necessarily adopt the conclusions of that court in applying this analysis to any aggravating circumstance other than the (i)(3) aggravator.")
[17] Apparently, the Court of Criminal Appeals addressed this issue in the interest of judicial economy. Under most circumstances, appellate courts should refrain from conducting a comparative proportionality review if the capital case is being reversed and remanded for a new trial or a new sentencing hearing. See, e.g., State v. Bondurant, 4 S.W.3d 662, 675 (Tenn.1999); Carter, 988 S.W.2d at 153.
[18] Evidence indicates the defendant told other gang members to take the victim "fishing." The record reflects the gang had a language all its own. James testified he heard the defendant twice tell other gang members "Ya'll know what to do."
[1] We note that in the case of co-defendant Antonio Jackson, a panel of this court concluded that evidence of James's presence at the apartment did not implicate him as an accomplice to the kidnapping or murder of Green. State v. Jackson, 52 S.W.3d 661, 666 (Tenn.Crim.App.2001).
[2] The state also contends this transcript was a public record equally available to the defense, thus exempting it from the Brady requirements. See Marshall, 845 S.W.2d at 233. Several courts have concluded the failure to reveal public records does not violate Brady. See, e.g., Kidwell v. State, 264 Ga. 427, 444 S.E.2d 789, 792 (1994) (concluding transcripts of trials of other defendants were public records and, therefore, the state was not required to disclose them); People v. Salgado, 263 Ill.App.3d 238, 200 Ill. Dec. 784, 635 N.E.2d 1367, 1376 (1994) (holding that prior inconsistent statements contained in transcripts were a matter of public record and no less available to the defendant than to the state). The defendant contends the suppression hearing transcript was not readily available to defense counsel. We need not determine this issue in light of our holding that the transcript did not meet the Bagley materiality test.
[3] The holding in Jencks v. United States, 353 U.S. 657, 672, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957), and subsequent congressional action was incorporated into Rule 26.2 of both the Federal and Tennessee Rules of Criminal Procedure, requiring the production of statements of witnesses at trial.
[4] We see no indication in the record that the tattoo artist, Jason Owens, had examined the tattoos of the defendant. The defendant correctly states in his brief that an ex parte request for funds to retain Owens was filed shortly prior to the motion for new trial hearing and denied by the trial court.
[1] I have urged adopting a protocol in which each case would be compared to factually similar cases in which either a life sentence or capital punishment was imposed to determine whether the case is more consistent with "life" cases or "death" cases. See State v. McKinney, 74 S.W.3d at 321 (Birch, J., concurring and dissenting). The current protocol allows a finding proportionality if the case is similar to existing death penalty cases. In other words, a case is disproportionate only if the case under review "is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed." Bland, 958 S.W.2d at 665 (emphasis added).
[2] In my view, excluding from comparison that group of cases in which the State did not seek the death penalty, or in which no capital sentencing hearing was held, frustrates any meaningful comparison for proportionality purposes. See Bland, 958 S.W.2d at 679 (Birch, J., dissenting). This case, in particular, is a prime example of the arbitrariness of this protocol.
[3] As I stated in my concurring/dissenting opinion in State v. Godsey, "[t]he scope of the analysis employed by the majority appears to be rather amorphous and undefinedexpanding, contracting, and shifting as the analysis moves from case to case." 60 S.W.3d 759, 797 (Tenn.2001)(Birch, J., concurring and dissenting).
[4] I also note that in a recent study on the costs and the consequences of the death penalty conducted by the State Comptroller, one of the conclusions was that prosecutors across the state are inconsistent in their pursuit of the death penalty, a fact that also contributes to arbitrariness in the imposition of the death penalty. See John G. Morgan, Comptroller of the Treasury, Tennessee's Death Penalty: Costs and Consequences 13 (July 2004), available at www.comptroller.state.tn.us/orea/reports.
[5] As noted by the Court of Criminal Appeals in its unredacted opinion, the State also sought the death penalty against Phillips, making it a prime case for comparison, even under the standards of Bland. State v. Gregory Robinson, No. W2001-01299-CCA-R3-DD at pp. 52-53, 2003 WL 21946735 (Tenn. Crim.App. at Jackson, Aug. 13, 2003).
[6] The disposition of Jarvis Shipp's case is unknown, although there is evidence in the record that he was testifying against this defendant in the hope of receiving a favorable plea bargain, presumably for something more favorable than the death penalty. See Majority Opinion, at 518-520.
[7] See, e.g., State v. Burns, 979 S.W.2d 276, 285 (Tenn.1998); State v. Cauthern, 967 S.W.2d 726, 741 (Tenn. 1998). | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1714978/ | 212 Wis. 2d 169 (1997)
567 N.W.2d 905
STATE of Wisconsin, Plaintiff-Respondent,
v.
Craig DAMASKE, Defendant-Appellant.[]
No. 96-1762-CR.
Court of Appeals of Wisconsin.
Oral argument May 28, 1997.
Decided June 24, 1997.
*175 On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen M. Glynn and Robert R. Henak of Shellow, Shellow & Glynn, S.C., of Milwaukee. There was oral argument by Robert R. Henak.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general. There was oral argument by Warren D. Weinstein.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
FINE, J.
Craig Damaske appeals from a judgment, entered on a "no contest" plea, convicting him of one count of second-degree sexual assault, see § 940.225(2)(a), STATS., and from the trial court's order denying his motion for postconviction relief.[1] He claims: (1) that his request-for-substitution-of-judge *176 filed against the Honorable Diane S. Sykes prevented her from hearing his case; (2) that the trial court erred in denying his motion to withdraw his plea; (3) that the trial court erred in considering evidence during the sentencing hearing that Damaske had previously sexually assaulted other women; and (4) that he did not have effective assistance of counsel. We affirm.
I.
A criminal complaint charging Damaske with four counts of second-degree sexual assault was filed on May 3, 1995. It alleged that a young woman went to a tavern where Damaske worked to apply for a job as an exotic dancer at a stag party he was planning for a friend. Later, according to the complaint, after Damaske and the woman went to a number of other taverns, they returned to Damaske's tavern where she auditioned for the job. The complaint alleged that Damaske raped the woman during the audition engaging in three different acts of penis-to-tion penetration, and one act of tongue-to-vagina penetration. All the time, the complaint charged, the woman told Damaske" `no' "and" `stop it'" "but did not resist because she feared the defendant would harm *177 her." On May 15, 1995, the State filed an Information that charged all four counts.
On May 22, 1995, Damaske's lawyer and the prosecutor appeared before the Honorable David A. Hansher for a scheduling conference. Judge Hansher's clerk advised them that August 21, 1995, would be the date for the final pretrial conference, and that the trial would start on August 30, 1995. Judge Hansher then told them that the Honorable Diane S. Sykes would preside over the pretrial conference and the trial, but that he, Judge Hansher, was willing to take Damaske's plea if he wanted to enter one before August 1.[2] Damaske was not present. When he appeared later that afternoon, Judge Hansher reiterated: "Make sure your client knows it goes trial [sic] before Judge Sykes in a different building." Damaske filed his substitution request against Judge Sykes on August 10, 1995.
Damaske filed a motion in limine to exclude "other acts" evidence authorized by RULE 904.04(2), STATS.[3]*178 The State, on the other hand, sought an order in limine under RULE 904.04(2) permitting the introduction of evidence that Damaske had raped three other women, at the tavern and at his residence, in 1983 and 1986. Damaske was never charged in connection with those alleged incidents.
On August 21, 1995, Judge Sykes denied Damaske's request for substitution as untimely because he had "actual notice" of the reassignment from Judge Hansher on May 22. Judge Sykes also granted Damaske's motion to adjourn the trial to permit him to review the material that the State sought to have admitted under RULE 904.04(2), STATS. The trial was set for October 23, 1995. At a pretrial hearing on September 12, 1995, Judge Sykes granted the State's motion in limine to permit introduction of the prior sexual assaults under RULE 904.04(2).
At an October 13, 1995, pretrial conference, the parties told Judge Sykes that they had plea-bargained the case: Damaske would plead "no contest" to one count, the other counts would be dismissed; the State would recommend the maximum penalty of ten years in prison, and the trial court would order a presentence report. After hearing from the victim, who told Judge Sykes that she did not object to the plea bargain, Judge Sykes adjourned the case until October 23, 1995, for entry of Damaske's plea.
*179 On October 23, 1995, after going through an extended personal colloquy with Damaske, as required by § 971.08(1), STATS., and after making certain that Damaske understood that she could sentence him to prison for ten years and that the State was recommending such a sentence, Judge Sykes accepted Damaske's "no contest" plea, and remanded him into custody until the sentencing date, which was set for November 17, 1995. On November 17, 1995, sentencing was adjourned because Damaske had not cooperated with the presentence writer, apparently on the advice of lawyers who now represent him on this appeal.[4]*180 Damaske reaffirmed, however, that he wanted to keep the lawyer who was then representing him, and told Judge Sykes that he would cooperate with the presentence writer. The matter was adjourned to December 8, 1995, for sentencing.
On December 8, 1995, Damaske appeared before Judge Sykes for sentencing. Damaske's lawyer affirmed that he had reviewed the presentence report with Damaske and that they had no corrections. Damaske's lawyer objected, however, to the trial court's consideration for sentencing of the evidence it had ruled admissible under RULE 904.04(2), STATS. The trial court rejected Damaske's objection, noting correctly:
The case law is clear that the state can submit uncharged, unproven offenses, dismissed cases and so on all for consideration for what they are worth in terms of the Court fashioning an appropriate sentence.
Damaske requested that the sentencing be adjourned, which Judge Sykes granted. The case was adjourned until January 5, 1996.
On January 5, 1996, a different prosecutor appeared on the State's behalf, and Damaske objected because the prosecutor's sister had an office-sharing arrangement with the lawyer representing Damaske. Judge Sykes determined that there was no conflict, a ruling that is not challenged on this appeal, and denied Damaske's request to have the original prosecutor appear. Judge Sykes again asked Damaske's attorney *181 whether he had reviewed the presentence report with Damaske and, if so, whether there were "any factual corrections that need to be made to the pre-sentence itself." Damaske's attorney replied that "there is really nothing" other than some typographical errors that had already been mentioned. The presentence report did not mention Damaske's alleged prior sexual assaults.
During the January 5th sentencing hearing Judge Sykes heard from a woman who claimed that Damaske had brutally raped her in 1986, and how that had affected her. Judge Sykes also heard from the victim in this case, and how the rapes had affected her. After statements by both the State and Damaske's lawyer, Damaske attacked the fairness of the proceeding:
Well, I would like to say that these whole court proceedings have been totally unfair. Starting out with four counts that I am allegedly charged with it is almost impossible for a middle class person to defend himself. It is almost impossible. Everybody in the jail, the pod, gets a free attorney. This is like $40,000. You're forced to plead no contest. You're forced by the state and the proceedings.
Everything [Damaske's attorney] motioned that he asked for was denied. He did not get one motion granted to him. But [the prosecutor], everything he asked for the Court was with open arms....
Nobody ever said [one of the lawyers representing Damaske on this appeal] was my attorney. [The lawyer then representing Damaske] has been on my left side ever since this thing started. If I knew there was going to be a trial today, that my attorney could not question these people, these so called witnesses I would not have ever plead no contest. I am an innocent man. That's all I have to say.
*182 In response, Judge Sykes gave Damaske a chance to confer with his lawyer to see if Damaske was going to stand by his plea. After conferring with his lawyer, Damaske indicated that he wanted to withdraw his "no contest" plea. Damaske's lawyer responded that he would seek to withdraw from the case if Damaske withdrew his plea. Judge Sykes set the matter down for further proceedings on January 19, 1996, during which time Damaske could be evaluated by the office of the State Public Defender to see whether he qualified for its representation. Judge Sykes set January 12th as the date by which Damaske would have to file his motion to withdraw his plea, and by which Damaske's lawyer would have to file his motion to withdraw from the case.
On January 30, 1996, Judge Sykes summarized what had happened since January 5:
When we were last in court, the case was scheduled for sentencing....
[Damaske] indicated a desire ... to withdraw his no contest plea and we scheduled the matter for further proceedings accordingly, as well as a deadline for filing of that motion.
[Damaske's attorney] announced his intention, if that motion was going to go forward, to move to withdraw from the case because of conflict of interest created by the situation. Nothing was filed prior to the next court date. That date had to be rescheduled to today. We were informed that the sentencing was going to proceed. The defendant had changed his mind back again and wished to remain in the same posture that the case was in when it was here previously, that is, scheduled for sentencing and wished to proceed to sentencing, and then this morning there was filed a pro se motion to withdraw the no contest plea, apparently drafted by *183 defense counsel at the defendant's request but signed by the defendant himself rather through counsel, together with a motion from [Damaske's attorney] to withdraw as counsel as a result of the defendant's apparent now continuing desire to move to withdraw the no contest plea in the case.
Damaske's lawyer explained what had happened:
Judge, with respect to the filing of the motion, on the 11th day of January I had prepared notice of motion and motion to withdraw as counsel and it's dated the 11th day of January, 1996. I visited with Mr. Damaske in the jail and I told him that the motions had to be filed by the 12th. I explained to him that it was necessary to have them filed in a timely fashion because that is the way the Court had calendared the time table [sic] and that in fact if the Court would contemplate such a motion, that there would be a necessity to have a response from the State either in writing or through some type of testimony which would have also required me as his attorney to be called by the State and I'm certain that's what would have happened, to explain what I had done during the course of my representing Mr. Damaske.
I presented Mr. Damaske with the pro se motion to withdraw the no contest plea, because this was his wish, and I told him if he wanted me to file it, I would and rather than sign it and date it for purposes of filing for purposes of further hearings on the matter, Mr. Damaske signed the bottom of a copy of the pro se motion to withdraw the no contest plea, stating, "Please do not file. I would like to proceed with sentencing. Dated January 12th, 1996. Craig Damaske."[5]
*184 As noted from Judge Sykes's summary, Damaske had changed his mind againagain seeking to withdraw his plea. Judge Sykes found that Damaske had, however," waived his right to move prior to sentencing to withdraw his no contest plea, because he did not meet the deadline established by the Court for doing so." Judge Sykes followed the State's recommendation and sentenced Damaske to a ten-year period of incarceration.
II.
As we have seen, Damaske claims: (1) that his request-for-substitution-of-judge filed against Judge Sykes prevented her from hearing his case; (2) that Judge Sykes erred in denying his motion to withdraw his plea; (3) that Judge Sykes erred in considering evidence during the sentencing hearing that Damaske had previously sexually assaulted other women; and (4) that he did not have effective assistance of counsel. We discuss these claims in turn.
A. Substitution request.
Damaske was told on May 22, 1995, that Judge Sykes would preside over his trial. He did not, however, file his request for substitution until August 10, 1995. Judge Sykes determined that the request was not timely because it was filed more than fifteen days after Damaske received notice of her assignment. See § 971.20(5), STATS.[6] Damaske could have challenged *185 the determination by seeking "review, either by the chief judge of the administrative district or via a writ of *186 prohibition." State ex rel. Nowak v. Waukesha County Circuit Ct., 169 Wis. 2d 395, 397, 485 N.W.2d 419, 420 (Ct. App. 1992); see also Clark v. State, 92 Wis. 2d 617, 631, 286 N.W.2d 344, 349 (1979) (trial judge's ruling on whether a request for substitution is timely can be reviewed by "requesting the court of appeals to exercise its supervisory authority"). He did neither. Moreover, he could have gone to trial before Judge Sykes and, if *187 convicted, challenged on appeal Judge Sykes's denial of the substitution request. See Clark, 92 Wis. 2d at 631, 286 N.W.2d at 349 (trial judge's ruling on whether a request for substitution is timely can be reviewed on appeal from judgment of conviction following trial). Damaske did not do this either. Rather, he entered a "no contest" plea, see § 971.20(9), STATS.[7]
*188 [1]
"A guilty plea, made knowingly and voluntarily, waives all nonjurisdictional defects and defenses, including alleged violations of constitutional rights prior to the plea." State v. Aniton, 183 Wis. 2d 125, 129, 515 N.W.2d 302, 303 (Ct. App. 1994). This is true, of course, of all pleas that result in conviction, "whether denominated as a `guilty plea,' a `no contest plea,' or an Alford plea.'" State v. Kazee, 192 Wis. 2d 213, 219, 531 N.W.2d 332, 334 (Ct. App. 1995).[8] As a matter of policy, however, § 971.31(10), STATS., preserves to a defendant the right to appellate review of the denial of motions to suppress evidence "notwithstanding the fact that [the] judgment [of conviction] was entered upon a plea of guilty." This provision applies to "no contest" pleas as well. State v. Esser, 166 Wis. 2d 897, 899 n.1, 480 N.W.2d 541, 542 n.1 (Ct. App. 1992). Although § 971.20(9), STATS., provides that, with the exception of conducting an initial appearance, accepting pleas, or setting bail, "the judge whose substitution has been requested has no authority to act further in the action" following the "filing of a request for substitution in proper form and within the proper time," this is a limitation on the trial judge's competency to act, not on his *189 or her jurisdiction. See Aniton, 183 Wis. 2d at 129, 515 N.W.2d at 304 ("The circuit court lacks criminal subject-matter jurisdiction only where the complaint does not charge an offense known to law."). Accordingly, the statutory right of substitution may be waived. State v. Hollingsworth, 160 Wis. 2d 883, 891, 467 N.W.2d 555, 558 (Ct. App. 1991). See also Clark, 92 Wis. 2d at 630-631, 286 N.W.2d at 349 (defendant waives right to complain on appeal that a timely filed request for substitution was not honored when defendant fails to diligently assert right); Nowak, 169 Wis. 2d at 397-398, 485 N.W.2d at 420 (waiver by failure to promptly seek review of denial of request for substitution).
[2]
Had the legislature intended to permit defendants to obtain post-judgment review of a trial judge's denial of a substitution request "notwithstanding the fact that such judgment was entered upon a plea of guilty," § 971.31(10), STATS., it would have so provided. It has not. And for good reason. Absent application of a guilty-plea-waiver rule and the requirement that a defendant seek timely review of a trial judge's rejection of a request for substitution, the request could lie dormant, like a hibernating mole, called from its sleep only if the defendant were dissatisfied with his or her sentence. By entering his plea and by proceeding to sentencing without either seeking a review of Judge Sykes's denial of his request for substitution or at least reserving the right to appeal from that denial, Damaske waived any objection to Judge Sykes's competency to "act further" in his case.[9]
*190 B. Damaske's attempt to withdraw his plea.
1. Prior to sentencing.
[3, 4]
Prior to sentencing, a "defendant should be allowed to withdraw a guilty plea for any fair and just reason, unless the prosecution would be substantially prejudiced." State v. Canedy, 161 Wis. 2d 565, 582, 469 N.W.2d 163, 170 (1991) (italics deleted). Whether that standard is satisfied, however, rests within the trial court's discretion. Id., 161 Wis. 2d at 579, 469 N.W.2d at 169. An evidentiary hearing is required unless "the defendant fails to allege sufficient facts in his motion to raise a question of fact, or [if the motion] presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief." Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629, 633 (1972).
[5]
The trial court here was presented with a defendant who professed a desire to plead "no contest" but, at the last moment prior to imposition of sentence, had second thoughts. The trial court appropriately gave him time to confer with his lawyer, and, appropriately, set a time within which Damaske would have to file his motion to withdraw his plea. As Nelson recognizes, an evidentiary hearing is not required unless the motion papers allege facts, which, if true, would entitle the *191 defendant to the relief sought. Given that Damaske not only did not file his motion within the time set by the trial court, but affirmatively told his lawyer not to file the papers, he cannot now be heard to complain that his motion not filed should have been heard.[10] This is as clear a case of waiver as can be imagined. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 31, 559 N.W.2d 563, 568 (1997) (waiver is the "`voluntary and intentional relinquishment of a known right'") (cited source omitted). The decision to accept conviction via a voluntary plea and, here, its reaffirmation, is a "`grave and solemn act'" and should not be so lightly treated that it takes on the character of "a move in a game of chess." See United States v. Hyde, ___ U.S. ___, 117 S. Ct. 1630, 1634, 137 L. Ed. 2d 935, 942 (1997) (quoted source omitted). The trial court acted well within its discretion in concluding that Damaske's attempt to again change his mind the morning of sentencing came too late.
2. After sentencing.
[6]
"After sentencing, a defendant who seeks to withdraw a guilty or no contest plea carries the heavy burden of establishing, by clear and convincing evidence, that the trial court should permit the defendant to withdraw the plea to correct a `manifest injustice.'" State v. Krieger, 163 Wis. 2d 241, 249, 471 N.W.2d 599, *192 602 (Ct. App. 1991) (quoted source omitted). Whether to grant or deny a motion to withdraw a plea "is addressed to the sound discretion of the trial court and we will only reverse if the trial court has failed to properly exercise its discretion." Id., 163 Wis. 2d at 250, 471 N.W.2d at 602.
On this appeal, Damaske gives two reasons in support of his claim that withdrawal of his plea is necessary to correct a "manifest injustice." This is how he frames the first ground in his appellate brief:
At the time he entered his no contest plea, Mr. Damaske did not know that his sentence would turn in part upon the bald claims of other alleged victims, the allegations of which he would be denied any opportunity to refute despite his claims that they were false.
This overstates it. As we have seen, Damaske knew at the January 5, 1996, sentencing hearing that the trial court would consider the statements by the women who claimed that Damaske had raped them, and that those women would not be subject to cross-examination.[11] Indeed, he knew that the trial court would consider those statements by December 8, 1995. He also knew, because it was explained to him at the October 23, 1995, plea hearing, that by entering his plea he was, as phrased by the trial court, giving up his "right to confront the witnesses against" him.
*193 [7]
On January 5, 1996, Damaske requested and was granted an adjournment to file a motion to withdraw his plea. Several days later, on January 12, after conferring with his lawyer, Damaske decided to go ahead with the sentencing nevertheless. In light of this reaffirmation of his plea and his stated desire, as expressed in his handwritten note, "to proceed with sentencing," he cannot now assert that he would not have entered his plea if he had known that the trial court would consider at sentencing the statements of the other women whom he could not confront. See State v. Paske, 121 Wis. 2d 471, 473-475, 360 N.W.2d 695, 696-697 (Ct. App. 1984) (where defendant knew prior to sentencing of prosecutor's breach of plea bargain, defendant's decision not to withdraw his no-contest pleas prior to imposition of sentence was reaffirmation of those pleas). As the supreme court explained more than two decades ago when a defendant did not challenge the prosecutor's breach of a plea bargain: "The situation is not so much waiver of claimed error, rather it is an abandonment of right to object by persisting in a plea strategy after the basis for the claim of error is known to defendant." Farrar v. State, 52 Wis. 2d 651, 660, 191 N.W.2d 214, 219 (1971) (parenthetical and footnote omitted). We apply this rationale here. Damaske has not established that failure to permit him to withdraw his no-contest plea because of his alleged misunderstanding of what the trial court would consider at sentencing (which is belied by the record) will result in a "manifest injustice," and the trial court here acted well within its discretion in denying that relief.
*194 [8]
The second ground upon which Damaske bases his claim that withdrawal of his plea is necessary to correct a "manifest injustice" is, as expressed in his appellate brief:
Mr. Damaske's plea also was not knowing and voluntary because it was in effect coerced by his belief that he could not afford to have the case tried, and thus the direct result of fear, ignorance and mistake.
The only authority cited for the unique proposition that a defendant can withdraw a plea after imposition of sentence because he or she did not want to spend the resources that would be necessary if a not-guilty plea were pursued is State v. Booth, 142 Wis. 2d 232, 418 N.W.2d 20 (Ct. App. 1987), which does not stand for that proposition at all. Every defendant, of course, has a right to counsel, Gideon v. Wainright, 372 U.S. 335 (1963), and Wisconsin provides counsel for those defendants who cannot afford to hire a lawyer. See CHAPTER 977, STATS. Few pleas would ever be final if they could be withdrawn because after sentencing a non-indigent defendant decides that in retrospect that he or she should have spent the money necessary to go to trial. Damaske has not demonstrated that permitting him to withdraw his plea on the second-asserted ground is necessary to prevent a "manifest injustice"; the trial court acted well within its discretion in denying that relief on this second ground as well.
C. Sentencing.
Damaske claims that the trial court denied him due process in considering evidence during the sentencing hearing that Damaske had previously sexually *195 assaulted other women without permitting him to cross-examine them. This claim, too, is without merit.
[9, 10]
Although an opportunity for cross-examination is, of course, required at trial, Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985), "there are significant differences between the jury's role in adjudicating guilt and the trial court's responsibility to determine an appropriate sentence." State v. Marhal, 172 Wis. 2d 491, 503, 493 N.W.2d 758, 764 (Ct. App. 1992). As recognized by Justice Hugo L. Black in a decision for the United States Supreme Court almost a half-century ago:
Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders.
Williams v. New York, 337 U.S. 241, 246 (1949) (footnotes omitted). Thus, for example, a sentencing court may consider conduct for which the defendant has been acquitted. Marhal, 172 Wis. 2d at 503-504, 493 N.W.2d at 764; see also United States v. Watts, 519 U.S. ___, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997) (per curiam) (under the federal sentencing guidelines). Moreover, as pertinent here, a "trial court in imposing sentence for one crime can consider other unproven offenses, since those *196 other offenses are evidence of a pattern of behavior which is an index of the defendant's character, a critical factor in sentencing." Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559, 562 (1980). See also State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377, 381 (1990) ("Evidence of unproven offenses involving the defendant may be considered by the court" in "determining the character of the defendant and the need for his incarceration and rehabilitation."). Cross-examination of those presenting this evidence, either in court, by letters received by the court and shared with counsel, or in statements made to a presentence writer, is not required as long as the defendant has an opportunity to rebut the evidence. Williams, 337 U.S. at 250 (matters properly considered by sentencing court need not be "restricted to [evidence] given in open court by witnesses subject to cross-examination"); United States v. Lawrence, 934 F.2d 868, 874 (7th Cir. 1991) ("[A] sentencing court may consider uncorroborated hearsay that the defendant has had an opportunity to rebut, illegally obtained evidence, and evidence for which the defendant has not been prosecuted."), cert. denied, 502 U.S. 938.[12]
[11]
The trial court here granted Damaske an adjournment to investigate and, if possible, rebut the charges. Although he claims that this opportunity was hampered by the women's refusal to discuss the matter with his lawyer, the trial court took that into account and, as it indicated in both its written decision denying Damaske's motion for postconviction relief and its earlier oral ruling, gave the statements the weight that it *197 deemed appropriate.[13] Damaske's due-process rights were not violated.
D. Effective assistance of counsel.
Damaske claims his counsel was ineffective because he did not timely file the request for substitution against Judge Sykes.[14]
[12-14]
Every criminal defendant has a Sixth Amendment right to the effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 686 (1984), and a coterminous right under Article I, § 7 of the Wisconsin *198 Constitution, State v. Sanchez, 201 Wis. 2d 219, 226-236, 548 N.W.2d 69, 72-76 (1996). In order to establish violation of this fundamental right, a defendant must prove two things: (1) that his or her lawyer's performance was deficient, and, if so, (2) that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687; see also Sanchez, 201 Wis. 2d at 236, 548 N.W.2d at 76. A lawyer's performance is not deficient unless he or she "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. The defendant must also prove prejudice; that is he or she must demonstrate that the trial lawyer's errors "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Put another way: "In order to show prejudice, `[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Sanchez, 201 Wis. 2d at 236, 548 N.W.2d at 76 (quoting Strickland, 466 U.S. at 694). This "prejudice" component of Strickland "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). In assessing a defendant's claim that his or her counsel was ineffective, a court need not address both the deficient-performance and prejudice components if the defendant does not make a sufficient showing on one. Strickland, 466 U.S. at 697; Sanchez, 201 Wis. 2d at 236, 548 N.W.2d at 76.
*199 [15]
A timely-filed request for substitution would have removed Judge Sykes from Damaske's case. Yet, Damaske has not shown that Judge Sykes's handling of Damaske's case rendered "the proceeding fundamentally unfair," see Fretwell, 506 U.S. at 372, or that she was not impartial, see Strickland, 466 U.S. at 686. Judge Sykes handled the case with grace, understanding, patience, and fairness, all in the face of a defendant who repeatedly flip-flopped in his positions and who, she wrote in her decision, was "manipulating the system for delay purposes." Judge Sykes's rulings on the legal issues surrounding Damaske's attempt to withdraw his plea and the subsequent sentencing were correct.[15] Her statement on sentencing reflects a careful consideration of all the appropriate factors; indeed, other than Damaske's unhappiness that Judge Sykes considered the statements of the other women he is alleged to have raped, he does not challenge on this appeal the exercise of her sentencing discretion.
[16]
Apparently recognizing that he cannot show that the proceedings before Judge Sykes were "fundamentally unfair," see Fretwell, 506 U.S. at 372, Damaske argues for a per se rule. The denial of a timely-filed request for substitution is grounds for reversal, State v. Austin, 171 Wis. 2d 251, 255-259, 490 N.W.2d 780, 782-784 (Ct. App. 1992), unless, as we hold above, the *200 right to rely on the substitution request was waived. This aspect of Damaske's appeal, however, is presented to us as an ineffective-assistance-of-counsel claim. The United States Supreme Court has held that there is a significant distinction between the consequences on appeal of trial-court error and the consequences of that same error when it is raised in an ineffective-assistance-of-counsel context. Thus, Kimmelman v. Morrison, 477 U.S. 365 (1986), recognized that although a defendant appealing the improper denial of a Fourth-Amendment suppression motion "need prove only that the search or seizure was illegal and that it violated his reasonable expectation of privacy in the item or place at issue," a defendant asserting an ineffective-assistance-of-counsel claim must prove "that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Id., 477 U.S. at 374-375. See also State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 254, 548 N.W.2d 45, 48 (1996) (no per se prejudice when appellate lawyer fails to perfect appeal). Of course, some deprivations of a defendant's rights are considered to be prejudicial per se under Strickland. Strickland, 466 U.S. at 692-693; State v. Smith, 207 Wis. 2d 259, 279-281, 558 N.W.2d 379, 388-389 (1997). Smith expanded this list to encompass a trial lawyer's failure to object to the prosecution's breach of a plea bargain, Smith, 207 Wis. 2d at 281-283, 558 N.W.2d at 389-390, essentially because of the difficulty in making a retrospective assessment of actual prejudice, id., 207 Wis. 2d at 281, 558 N.W.2d at 389. There is no such difficulty here: the focus is on "fairness," not results. Strickland, 466 U.S. at 693-694. Indeed, inquiry into whether another judge would have been more lenient than Judge Sykes (who accepted the *201 plea-bargain and granted the State's motion to dismiss three out of the four counts), or whether another judge would have given more or less weight to the statements of the other women who claim that Damaske had raped them, is beyond the pale of an ineffective-assistance-of-counsel analysis:
The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices, should not be considered in the prejudice determination.
Id., 466 U.S. at 695.[16] The trial court correctly rejected Damaske's ineffective-assistance-of-counsel claim.
*202 By the Court.Judgment and order affirmed.
NOTES
[] Petition to review denied.
[1] Section 940.225, STATS., provided, as pertinent to this appeal:
(2) SECOND DEGREE SEXUAL ASSAULT. Whoever does any of the following is guilty of a Class C felony:
(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
This section was amended by 1995 Wis. Act 69 to increase the penalty from a ten-year "Class C felony," see § 939.50(3)(c), STATS., to a twenty-year "Class BC felony," see § 939.50(3)(bc), STATS. 1995 Wis. Act 69, §§ 3, 4, & 5. The new penalties apply to crimes committed after the Act's effective date, which was December 2, 1995. 1995 Wis. Act 69, § 20(1).
[2] Judge Hansher told the parties:
I'm willing to take the plea. As long as it's before August 1, I'll take the plea. You can choose your judge I guess.
[3] RULE 904.04, STATS., provides:
Character evidence not admissible to prove conduct; exceptions; other crimes. (1) CHARACTER EVIDENCE GENERALLY. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(a) Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same;
(b) Character of victim. Except as provided in s. 972.11 (2), evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (c) Character of witness. Evidence of the character of a witness, as provided in ss. 906.07, 906.08 and 906.09 (2) OTHER CRIMES, WRONGS, OR ACTS. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[4] Damaske's lawyer explained the situation to Judge Sykes as follows:
From the last time we were in court, the office of Shellow, Shellow & Glynn[,] representatives from that office have visited with Mr. Damaske on at least four separate occasions and apparently have made contact with him and discussed matters concerning this case and based on things that I know, reviewed transcripts with Mr. Damaske, and it's my further understanding that it was the father of the defendant, at least that's what I've been told, the father of the defendant who had asked the law firm to involve itself in this procedure.
Mr. Glynn and Mr. Henak from that same firm, I know from jail records, have been to visit Mr. Damaske in the infirmary and as of today's date, no one from that law firm has contacted me in writing or by phone or by fax to inform me that they in any way represent Mr. Damaske.
So, I put that out on the record, Judge, because I'm the attorney of record. No appearance has been made, no letter of retainer has been submitted to the Court from Mr. Glynn's office and I can only assume that it's because of the various concerns that Mr. Damaske's, the defendant, father has in this case that that law firm has been asked to review matters.
In any event, as a result of a conversation that was had between the defendant and Mr. Glynn, it was the defendant's understanding that he was not to talk to anybody. When I had an associate visit with Mr. Damaske on one occasion without my presence, the associate was told by Mr. Damaske that he had no comment for him, so under the circumstances once I had a chance to discuss matters completely with Mr. Damaske, he explained to me what he thought was the right thing to do and that was to say nothing and at one time he was at least under the belief that he was going to be hiring new counsel as indicated in this memo.
[5] A copy of that document with Damaske's signature is in the appellate record.
[6] Section 971.20, STATS., provides:
Substitution of judge. (1) DEFINITION. In this section, "action" means all proceedings before a court from the filing of a complaint to final disposition at the trial level.
(2) ONE SUBSTITUTION. In any criminal action, the defendant has a right to only one substitution of a judge, except under sub. (7).
The right of substitution shall be exercised as provided in this section.
(3) SUBSTITUTION OF JUDGE ASSIGNED TO PRELIMINARY EXAMINATION. (a) In this subsection, "judge" includes a court commissioner who is assigned to conduct the preliminary examination.
(b) A written request for the substitution of a different judge for the judge assigned to preside at the preliminary examination may be filed with the clerk, or with the court at the initial appearance. If filed with the clerk, the request must be filed at least 5 days before the preliminary examination unless the court otherwise permits. Substitution of a judge assigned to a preliminary examination under this subsection exhausts the right to substitution for the duration of the action, except under sub. (7).
(4) SUBSTITUTION OF TRIAL JUDGE ORIGINALLY ASSIGNED. A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.
(5) SUBSTITUTION OF TRIAL JUDGE SUBSEQUENTLY ASSIGNED. If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed with the clerk within 15 days of the clerk's giving actual notice or sending notice of the assignment to the defendant or the defendant's attorney. If the notification occurs within 20 days of the date set for trial, the request shall be filed within 48 hours of the clerk's giving actual notice or sending notice of the assignment. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.
(6) SUBSTITUTION OF JUDGE IN MULTIPLE DEFENDANT ACTIONS. In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants. If severance has been granted and the right to substitute has not been exercised prior to the granting of severance, the defendant or defendants in each action may request a substitution under this section.
(7) SUBSTITUTION OF JUDGE FOLLOWING APPEAL. If an appellate court orders a new trial or sentencing proceeding, a request under this section may be filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.
(8) PROCEDURES FOR CLERK. Upon receiving a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is determined to be proper, the clerk shall request the assignment of another judge under s. 751.03.
(9) JUDGE'S AUTHORITY TO ACT. Upon the filing of a request for substitution in proper form and within the proper time, the judge whose substitution has been requested has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail.
(10) FORM OF REQUEST. A request for substitution of a judge may be made in the following form:
STATE OF WISCONSIN
CIRCUIT COURT
.... County
State of Wisconsin
vs.
.... (Defendant)
Pursuant to s. 971.20 the defendant (or defendant's) request (s) a substitution for the Hon.... as judge in the above entitled action.
Dated...., 19...
.... (Signature of defendant or defendant's attorney)
(11) RETURN OF ACTION TO SUBSTITUTED JUDGE. Upon the filing of an agreement signed by the defendant or defendant's attorney and by the prosecuting attorney, the substituted judge and the substituting judge, the criminal action and all pertinent records shall be transferred back to the substituted judge.
[7] Damaske argues that § 971.20(9), STATS., which permits a judge against whom a timely request for substitution has been filed to "accept pleas," refers only to pleas offered on the day the request is filed. The language of § 971.20(9) contains no such limitation. Damaske, however, points to the following language in the Judicial Council Note:
Sub. (9) is prior sub. (2), amended to allow the judge whose substitution has been requested to accept any plea. The prior statute allowed the judge to accept only pleas of not guilty. This revision promotes judicial economy by allowing the judge whose substitution has been requested to accept a guilty or no contest plea tendered by the defendant before the action is reassigned. Defendants preferring to have guilty or no contest pleas accepted by the substituting judge may obtain that result by standing mute or pleading not guilty until after the action has been reassigned.
Although one possible inference that can be drawn from this note is that the plea accepted by the judge against whom a substitution has been timely filed must be entered at the same proceeding at which the request is filed, the statute is not so limited, and it is to a statute's clear language that we owe obeisance, not it's legislative history. See Goodyear Tire & Rubber Co. v. DILHR, 87 Wis. 2d 56, 74, 273 N.W.2d 786, 796 (1978). Indeed, many requests are filed with the clerk and not presented to the judge at a proceeding. See § 971.20(3)(b), STATS. ("A written request for the substitution of a different judge for the judge assigned to preside at the preliminary examination may be filed with the clerk, or with the court at the initial appearance."). Nevertheless, we need not decide this issue because of our conclusion that by entering that plea without either a reservation of rights or seeking immediate review of Judge Sykes's denial of the request, Damaske waived whatever right he had to prevent Judge Sykes from imposing sentence. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) ("cases should be decided on the narrowest possible ground").
[8] An "Alford" plea is one where the defendant accepts conviction while simultaneously proclaiming his or her innocence. See North Carolina v. Alford, 400 U.S. 25 (1970). Such pleas are permitted in Wisconsin. State v. Garcia, 192 Wis. 2d 845, 856-860, 532 N.W.2d 111, 115-117 (1995).
[9] We do not decide whether such a reservation of rights would have been effective, given the alternate routes to seek review of a trial judge's denial of a substitution request. See Gross, 227 Wis. at 300, 277 N.W. at 665 (only dispositive issue need be addressed); Blalock, 150 Wis. 2d at 703, 442 N.W.2d at 520 ("cases should be decided on the narrowest possible ground"). But see State v. Kazee, 192 Wis. 2d 213, 219, 531 N.W.2d 332, 334 (Ct. App. 1995) (attempt to preserve issue by agreement despite guilty-plea-waiver-rule ineffective).
[10] As noted by his lawyer's in-court recounting of the events leading up to the sentencing hearing on January 30, 1996, Damaske wrote on the motion that his lawyer had prepared to withdraw Damaske's plea: "Please do not file, I would like to proceed with sentencing." (Uppercasing omitted.) Damaske wrote, dated, and signed this statement on January 12, 1996, the date by which the trial court indicated that any motion to withdraw the plea had to be filed.
[11] Damaske told the trial court on January 5, 1996: "If I knew ... that my attorney could not question these people ... I would not have ever plead no contest." Yet, a week later, he reaffirmed his plea and wrote that he wanted "to proceed with sentencing."
[12] Damaske concedes in his reply brief on this appeal that "there is currently no per se right to cross-examine witness at sentencing."
[13] The following is an excerpt from the trial court's written decision:
As I indicated previously at the December 8, 1995 hearing on this issue, the defendant's due process rights were not violated by his inability to confront these people.
... I can give those prior episodes to the extent that they are going to be talked about here the weight that they deserve recognizing that the matters did not go to trial, the witnesses weren't subjected to cross-examination, that there was no right of confrontation and so on in giving to them the weight that they deserve....
[Citation omitted.] For these reasons, I find that the defendant has not established by clear and convincing evidence that a manifest injustice would result if he were not allowed to withdraw his plea of no contest. His motion to withdraw his plea at this time is therefore denied.
[14] In making this argument, Damaske assumes "that the time for filing the request in fact runs from the date of actual notice." Damaske does not argue that his lawyer's performance was deficient because he did not seek review of Judge Sykes's denial of the substitution request, and, accordingly, we do not address this issue. See Schenkoski v. LIRC, 203 Wis. 2d 109, 115 n.3, 552 N.W.2d 120, 122 n.3 (Ct. App. 1996) ("An issue raised but not briefed or argued is deemed abandoned.").
[15] We do not decide whether Judge Hansher's statement on May 22, 1995, that Judge Sykes would take over Damaske's case was sufficient "notice" under § 971.20(5), STATS. See Hoffman, 227 Wis. at 300, 277 N.W. at 665 (only dispositive issue need be addressed); Blalock, 150 Wis. 2d at 703, 442 N.W.2d at 520 ("cases should be decided on the narrowest possible ground").
[16] The plea bargain limited Damaske's exposure to a tenyear sentence, which is what the prosecutor recommended and is what the trial court imposed. But prisoners in Wisconsin do not serve the time to which they are sentenced. A study commissioned by the Wisconsin Policy Research Institute reports that "the average length of a sentence in Wisconsin is 10.5 years, but the average length of actual confinement is under 2 years." J. DiIulio, Crime and Punishment in Wisconsin (Wisconsin Policy Research Institute Report, Vol. 3, No. 7 (1990)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3405101/ | The court did not err in overruling the plaintiff's motion to dismiss the answer of the defendant, but did err in overruling the plaintiff's motion for new trial.
DECIDED OCTOBER 16, 1940.
H. H. Dobson sued W. C. Monk on a promissory note for $115. The defendant contended that he did not owe the note, because the consideration had totally failed, in that he had bought an automobile from the plaintiff by executing the note sued on and by assuming the payment of a balance due thereon, which he alleged the plaintiff represented to be $140, and that the plaintiff represented to him that plaintiff owed a finance company no past-due installments, and that no payment would have to be made to the finance company until thirty days after the purchase of the car by the defendant; that when he bought the car one installment of $25.38 was past due; that soon after the sale the plaintiff told the defendant he would have to have the car or a payment would have to be made to the finance company; that the plaintiff asked him to return the car to him at the home of the mother of the plaintiff; that he returned the car as requested, and that the finance company repossessed the car at that place; that the plaintiff wilfully misrepresented the fact of the past-due installment, and that defendant was induced thereby to give the note sued on. A motion by the plaintiff to dismiss the answer of the defendant was overruled, to which ruling the plaintiff excepted pendente lite. The jury found for the defendant. The plaintiff excepted to the overruling of his motion for new trial, and to the overruling of the motion to dismiss the answer.
1. The answer of the defendant was good as against general demurrer, because it alleged a rescission of the sale contract by an agreement consummated by the defendant.
2. The court erred in charging the jury as follows: "To support a plea of total failure of consideration in this case, it must be established by the evidence that the equity in the automobile purchased by the defendant was entirely worthless for any purpose, and *Page 366
if he did not have an equity, or he could not use the equity, then that would not be a case in defense of the plaintiff," because there was no evidence that the plaintiff did not have an equity in the car, and because it was confusing and misleading in that it confused the issues of rescission by agreement and of total failure of consideration, and was ambiguous in that it is not clear whether the last clause authorized or forbade a finding for the defendant on the issue of total failure of consideration.
3. The following charge was error: "When the defendant executed and gave the plaintiff the note sued on, and if at the time thereof the plaintiff stated to the defendant that there was not any past-due payments on said car, and you find that from the evidence, and that there would not be a payment due for some thirty days, and you find that from the evidence, and that the defendant believed and acted upon that statement, if you find from the evidence there was a payment due that defendant didn't know about, then the defendant, if he so elected, could return the automobile to the plaintiff, and he could not be liable for that note," for the reason that the only valid defense set forth in the answer was that of rescission by an agreement and performance thereof by the defendant. There was no evidence that defendant tendered the car back to the plaintiff otherwise than in accordance with an alleged agreement on the part of the plaintiff to take it back. The defendant testified that the plaintiff agreed to take the car back, and that defendant left it at the plaintiff's mother's home as directed by the plaintiff, all of which plaintiff denied.
4. The fifth assignment of error is covered by division 2, supra.
5. The admission of testimony as to the misrepresentation as to the past-due installment, even if erroneous, a question which we do not decide, was harmless, because the only issue in the case was whether the sale contract had been rescinded by consent.
There is no merit in any other assignment of error. The court properly overruled the motion to dismiss the defendant's answer, but erred in overruling the plaintiff's motion for new trial.
Judgment reversed in part and affirmed in part.Stephens, P. J., and Sutton, J., concur. *Page 367 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523779/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00498-CV
MWM HELOTES RANCH, LTD. and Myfe Moore,
Appellants
v.
John H. WHITE, Jr., Individually, John H. White, III, Individually, John H. White, Jr., John H.
White, III and Molly C. White, in their capacities as Co-Trustees of the 1983 John H. White
Long-Term Trust F/B/O John H. White, Jr. and of the 1976B Partnership Trust; TCW Helotes
Ranch Ltd, and Tuleta C. White,
Appellees
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2018CI11563
Honorable David A. Canales, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: April 8, 2020
AFFIRMED
Appellants MWM Helotes Ranch, Ltd. and Myfe Moore (collectively, “Moore”) appeal
the denial of their motion to vacate an arbitration award against them on the sole ground 1 that the
1
After the appellants’ brief and the appellees’ briefs were filed, a new appellate attorney entered the appeal on Moore’s
behalf. In two orders dated April 1, 2019 and May 3, 2019, this court denied Moore leave to raise new appellate issues
in an amended brief or reply brief asserting the arbitrator exceeded the scope of her authority and was biased against
Moore.
04-18-00498-CV
arbitrator abused her discretion by failing to grant a postponement of the arbitration hearing. We
overrule Moore’s issue and affirm the trial court’s judgment.
BACKGROUND
The underlying arbitration arises out of the settlement of a lawsuit originally filed by John
H. White, Jr. in 2005 seeking to partition the land that he and his two sisters Myfe Moore and
Tuleta White, and their respective trusts or limited partnership entities, inherited from their father.
After three years of litigation, the parties 2 entered into a settlement agreement in 2008 that
partitioned the land and established an appraisal process to determine any owelty payments due
between the siblings based on the value of their parcels (the “Settlement Agreement”). The
Settlement Agreement included a provision for binding arbitration before Sue M. Hall (the
“Arbitrator”) of any dispute regarding “enforcement or violation” and “interpretation, enforcement
and/or performance” of the agreement.
Disagreements subsequently arose concerning the appraisal process and a dam on Moore’s
property in need of remediation. John White filed a petition initiating arbitration in 2009
requesting the Arbitrator to interpret and enforce the appraisal provision of the Settlement
Agreement. The parties agreed to a set of arbitration rules, later supplemented by an addendum
(collectively, the “Arbitration Rules”), intended to govern the arbitration proceedings. With
respect to postponements, Rule 2(d) of the Arbitration Rules states in relevant part:
Continuances. Except by stipulation of the parties or for good cause shown, no
continuances or postponements of the date initially set for hearing shall be granted
by the arbitrator. If one of the parties fails to appear for the hearing(s), the arbitrator
may proceed to determine the controversy . . . .
2
As used in this opinion, “John White” collectively refers to John H. White, Jr., individually, John H. White, III,
individually, and John H. White, Jr., John H. White, III and Molly C. White in their capacities as Co-Trustees of the
1983 John H. White Long-Term Trust F/B/O John H. White, Jr. and of the 1976B Partnership Trust. Similarly, “Tuleta
White” collectively refers to TCW Helotes Ranch, Ltd. and Tuleta C. White, individually.
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04-18-00498-CV
In the addendum, the parties acknowledged that the arbitration process could result in “a series of
awards and rulings in this matter before everything is finally concluded,” and stated they “do not
want to wait months to discover that another party objects to an award or ruling by the Arbitrator”
and wanted to avoid filings in the public domain. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 171.088(b) (90-day statutory deadline to seek to vacate an arbitration award). To avoid such
delays, the parties agreed to the following “Objection Rule:”
The parties shall have 20 days from the issuing of each award or ruling to object or
to request reconsideration. If a party does not file an objection or request
reconsideration by the 20th day following the award or ruling, the award/ruling will
be final and any party shall have the right to judgment on that ruling.
In 2011, the parties agreed to a supplement to the Settlement Agreement which established
an escrow fund to be used by Moore for remediation of the dam according to standards set by the
Texas Commission on Environmental Quality (the “Supplement”). During the next three years,
the Arbitrator heard and ruled on a series of requests for enforcement and other arbitrable disputes
between the parties regarding the dam project. Moore challenged and sought to vacate each of the
awards issued by the Arbitrator. The Honorable Stephen B. Ables was selected by the parties to
serve as a Special Judge to determine whether any challenged award, decision, or order by the
Arbitrator should be reheard, confirmed, modified, or vacated. Special Judge Ables ultimately
confirmed all three of the arbitration awards challenged by Moore.
In 2014, John White filed the instant arbitration claim that gives rise to this appeal — a
claim for breach of the Settlement Agreement and Supplement based on Moore’s failure to begin
remediation of the dam. White sought to recover damages to his land located downstream of the
dam, his portion of the escrow funds, attorneys’ fees, and arbitration expenses. On September 6,
2017, John White amended his pending claim to add a request for enforcement of an easement
located on Moore’s property. Tuleta White later joined in the amended claim.
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04-18-00498-CV
On September 21, 2017, the Arbitrator gave the parties notice that a final arbitration
hearing on the amended claim was set for November 14-16, 2017. On October 25, 2017, John
White’s counsel sent a letter to Moore advising her that John White intended to conduct an
inspection of the dam located on her property on November 1, 2017 in preparation for the
arbitration. The next day, John White’s counsel forwarded the October 25, 2017 notice of
inspection to attorney Tom Joseph via email “as a courtesy” based on communications with Tuleta
White’s counsel stating that Joseph was representing Moore. Tom Joseph had not made an
appearance in the arbitration.
On October 31, 2017, the day before the scheduled dam inspection, Anne Joseph Carraway,
an attorney associated with Tom Joseph, P.C., sent a letter on behalf of Joseph to the Arbitrator
and to counsel for John White and Tuleta White. The letter acknowledged notice of the dam
inspection and requested a postponement based on Joseph’s unavailability due to a “serious family
emergency.” The letter stated in relevant part:
Although Tom has represented Myfe Moore in some recent easement issues and
did intend to represent her in pending matters, he has been out of the office for the
past week, due to a serious family emergency. Unfortunately, due to this
emergency, he is unable to represent her any longer, and has requested that I relay
this information to you. His inability to represent her is due to no fault of Ms.
Moore’s, but to his recent and future inability to give this case the attention it
requires while attending to a personal family matter.
The letter went on to state that Moore was “entitled to have an attorney present at any interaction
with opposing counsel” and “therefore, the inspection . . . propos[ed] for tomorrow cannot take
place.” Carraway explained that she had assisted Joseph on Moore’s case during the “past couple
of weeks” but was not completely familiar with all the issues and the many files and reports
contained in the case’s long history. She then suggested, “[b]ecause of this and the upcoming
holidays, a postponement until after the new year seems appropriate,” adding, “I cannot imagine
that her new attorney will have time to properly prepare before then.” Carraway closed the letter
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04-18-00498-CV
by stating, “I know Ms. Moore has actively begun trying to locate a new attorney . . . .” The only
explicit reference to the upcoming arbitration hearing was in the regarding line which read, “Re:
White Lake Dam Inspection/Pending Arbitration Matters.”
On November 3, 2017, Moore herself sent an email to the Arbitrator and copied counsel
for John White and Tuleta White. Moore’s email stated:
[p]lease review the letter that my former attorney sent you in October. Due to a
family emergency, he had to remove himself from our case, so I have no lawyer
currently. I have the right to have an attorney to represent me and my family, so I
am going to need at least 2 weeks to locate and hire a lawyer, and am currently
interviewing a firm. A new lawyer will need at least 90 days to review and evaluate
the 10 years of data from the disputes that my brother brought against me and my
sister. Thank you for a reply as soon as possible.
Later the same day, the Arbitrator issued a written decision denying Moore’s request for a
continuance of the November 14-16, 2017 arbitration hearing. The Arbitrator acknowledged
receipt of Moore’s email and stated, “[t]he basis of [Moore’s] request was that an attorney who is
not an attorney of record in this matter has had a family emergency and is unable to come into the
case for Ms. Moore et al.” The Arbitrator referred back to her written decision on September 17,
2015 which permitted Moore’s then-counsel to withdraw but specifically instructed Moore to
obtain new counsel within 15 days and required new counsel to file “an entry of appearance” in
the arbitration by October 2, 2015. The Arbitrator then noted, “[n]o counsel, including the counsel
with the family emergency, has made an appearance for [Moore] in the more than two (2) years
since the referenced ruling.” The Arbitrator further stated that the recent notice of the November
14-16, 2017 arbitration hearing on the amended breach of contract claim had given “Myfe Moore
et al an additional month and a half to obtain counsel for the hearing or to make plans to represent
herself in the proceedings.” The Arbitrator then concluded there were “no legitimate grounds for
delaying” the hearing and denied Moore’s request for a continuance.
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04-18-00498-CV
On November 9, 2017, six days after the continuance was denied, Tom Joseph wrote a
letter to the Arbitrator, but did not copy counsel for John White or Tuleta White. Joseph’s letter
references “Re: White Lake Dam Inspection/Pending Arbitration Matters” and states:
Just a note as a courtesy. We undertook to represent Ms. More [sic] and spent many
hours familiarizing ourselves with the many events occurring in her past case
history . . . On October 25, 2017, I had an emergency situation which caused my
wife to be taken to an emergency room . . . this occasion would pre-empt any time
I could use for Ms. Moore’s case and still attend to my existing case load. My wife
remains hospitalized as of this writing and my time has become more scarce for my
practice. In fairness to Ms. Moore, she did not intend that your call to arbitration
would be ignored.
Joseph also explained that he is a solo practitioner and Carraway, his niece, occasionally assists
him on voluminous cases but is not a regular practicing attorney outside of his supervision.
The arbitration hearing proceeded as scheduled on November 14 through 16, 2017.
Evidence was presented by the parties and two expert witnesses. Neither Moore nor any attorney
appeared on her behalf during the three-day arbitration hearing. On February 7, 2018, the
Arbitrator issued her Arbitration Decision and Award (the “Award”) finding that Moore had
breached the Settlement Agreement/Supplement and awarding John White damages based on the
diminished value of his property due to non-remediation of the “high hazard” dam, ordering release
of the escrow funds to John White and Tuleta White, and granting their request for recovery of
attorneys’ fees and costs of arbitration. In addition, the award granted a permanent injunction to
enforce Tuleta White’s easement on Moore’s property and voided a separate easement document
filed by Moore.
Moore filed a motion to vacate the Award based solely on the Arbitrator’s failure to
postpone the arbitration. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a)(3)(B) (denial of a
request for postponement despite a showing of sufficient cause). John White filed a response
asserting, among other arguments, that Moore waived her complaint by failing to object to the
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04-18-00498-CV
Arbitrator’s ruling denying a postponement as required by the agreed Objection Rule. On June 6,
2018, Special Judge Ables issued a verdict finding that Moore failed to establish grounds to vacate
the Award and denied her motion to vacate and confirmed the Award. A final judgment on the
Award and an order of severance were signed by the district court on June 22, 2018. This appeal
by Moore followed.
DISCUSSION
An appellate court reviews a trial court’s decision to vacate or confirm an arbitration award
de novo. City of Laredo v. Mojica, 399 S.W.3d 190, 194-95 (Tex. App.—San Antonio 2012, pet.
denied). Because Texas law 3 favors arbitration, judicial review of the arbitrator’s award is
“extraordinarily narrow” and deferential. Id. at 195; Stieren v. McBroom, 103 S.W.3d 602, 605
(Tex. App.—San Antonio 2003, pet. denied) (reviewing court may not substitute its judgment for
that of the arbitrator’s merely because it would have reached a different result). An arbitration
award has the same effect as the judgment of a court of last resort. CVN Group, Inc. v. Delgado,
95 S.W.3d 234, 238 (Tex. 2002). All reasonable presumptions are indulged in favor of the
arbitration award and none against it. Id. As a corollary, the arbitration decision under review is
presumed correct on matters where the record is silent. NAFTA Traders, Inc. v. Quinn, 339 S.W.3d
84, 102 (Tex. 2011).
In challenging the Award, Moore had the burden to establish one of the statutory grounds
for vacating an award. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.087 (trial court “shall
confirm” the award unless grounds are offered to vacate, modify or correct); see also id.
§ 171.088(a) (grounds to vacate award), (c) (if motion to vacate is denied, court shall confirm the
award). Specifically, the party seeking to vacate an arbitration award bears the burden in the trial
3
The parties expressly agreed the Texas General Arbitration Act (“TAA”) would govern the arbitration proceedings.
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04-18-00498-CV
court of bringing forth a sufficient record that establishes its basis for vacating the award. NAFTA,
339 S.W.3d at 101. If the record does not demonstrate error, an award must be presumed correct.
Id. at 102; In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 400 (Tex. App.—Dallas 2009,
pet. denied).
Moore’s sole ground 4 for vacating the Award was that the arbitrator “refused to postpone
the hearing after a showing of sufficient cause for the postponement.” TEX. CIV. PRAC. & REM.
CODE ANN. § 171.088(a)(3)(B). On appeal, Moore asserts that she submitted three requests for
continuance — Carraway’s October 31, 2017 letter, Moore’s own November 3, 2017 email, and
Joseph’s November 9, 2017 letter — which showed her attorney had a family emergency that
precluded his representation and therefore she established “sufficient cause” to postpone the
hearing scheduled to begin in two weeks. The appellees argue that there was waiver; Joseph was
not attorney of record for Moore in the arbitration; only two of Moore’s requests for continuance
came before the ruling denying the continuance and the requests were not verified and did not
contain specific facts to establish sufficient cause for postponement; Moore failed to supply a
complete record for the judicial review of the Arbitrator’s ruling; and Moore has a history of
changing attorneys to delay the arbitration proceedings and avoid unfavorable rulings and failed
to show she was not at fault.
Waiver
Appellees argue that Moore waived her complaint regarding denial of her request to
postpone the hearing because she did not object to or request reconsideration of the Arbitrator’s
4
In addition to the motions for leave addressed in footnote 1 of this opinion, Moore’s reply brief raises a separate
vacatur argument under subsection (a)(3)(D) of section 171.088. That ground was not raised in Moore’s motion to
vacate. Because there is nothing in the record indicating that ground was raised at the trial court’s hearing on Moore’s
motion to vacate, we do not consider that argument. See Black v. Shor, 443 S.W.3d 154, 163 (Tex. App.—Corpus
Christi-Edinburgh 2013, pet. denied) (party seeking to vacate arbitration award must present any grounds for doing
so to the trial court or those complaints are waived on appeal).
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04-18-00498-CV
ruling within twenty days as required under the agreed Objection Rule; therefore, she failed to
preserve any error for appellate review. See TEX. R. APP. P. 33.1(a).
At its core, arbitration is “simply a matter of contract between the parties” and the
arbitrator’s powers are derived from the parties’ agreement. NAFTA, 339 S.W.3d at 87 (quoting
First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). “[A]s with any other contract,
the parties’ intentions control” and “courts and arbitrators must give effect to the contractual rights
and expectations of the parties” in construing or enforcing an arbitration agreement. Id. at 90
(quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010) (internal citations
omitted)). Parties may agree on the rules under which any arbitration will proceed. Stolt-Nielsen,
559 U.S. at 683.
Here, as noted above, the parties were contractually obligated to arbitrate any disputes
related to interpretation or enforcement of the Settlement Agreement and Supplement and began
doing so in 2004, continuing to the present. In addition, the parties agreed to the Arbitration Rules,
including the Objection Rule, to govern the procedures used throughout the course of arbitration.
As set forth above, in the Objection Rule the parties expressly stated their intent to shorten the
period for objecting to an award or ruling by the Arbitrator from months to 20 days. To achieve
that purpose, the agreed Objection Rule required that a party object or move to reconsider any
“award or ruling” by the Arbitrator within 20 days, and specified that upon a failure to do so the
award or ruling would become “final and any party shall have the right to judgment on that ruling.”
The parties stated the purpose of the 20-day objection period was to avoid the uncertainty inherent
in “wait[ing] months to discover that another party objects to an award or ruling by the Arbitrator”
and avoid the constant public filing of awards with the court for confirmation.
Moore initially asserts the 20-day Objection Rule did not apply to the Arbitrator’s
interlocutory order denying her motion for continuance. In support, Moore isolates one phrase,
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“the right to judgment on that ruling,” and argues the Objection Rule only applies to an award or
ruling on which the party has a “right to judgment” absent objection. Since neither party had a
“right to judgment” based on the ruling denying a continuance and the losing party had no right to
interlocutory judicial review of the ruling, Moore contends applying the Objection Rule in the
continuance context makes no sense. Moore argues, “[a]t best, the twenty (20) day provision for
Moore’s objections applied only when the Arbitrator’s final Default Award was issued.” We
disagree. Moore’s restrictive interpretation of the Objection Rule ignores the plain language of
that agreed rule which expressly applies to interim “rulings” as well as “awards.” Denial of a
request for postponement is an interlocutory “ruling,” not an “award” subject to judicial review
under the TAA. See SM Architects, PLLC v. AMX Veteran Specialty Servs., LLC, 564 S.W.3d
902, 905-06 (Tex. App.—Dallas 2018, pet. denied) (noting that the term “award” under the TAA
contemplates finality such as “a judgment, sentence, or final decision,” and that there is no judicial
review of an interlocutory order under the TAA). In addition, Moore overlooks the Objection
Rule’s statement that, absent an objection, an award or ruling becomes “final” in addition to also
conferring the right to judgement as appropriate. Reading the agreed rule as a whole and in view
of the parties’ stated purpose, we construe the Objection Rule as requiring an objection or request
for reconsideration of a ruling denying a continuance of an arbitration hearing.
In addition to the Objection Rule agreed to by the parties, the familiar rules for preserving
complaints on appeal, as well as presenting a complete record, apply equally to judicial review of
an arbitration award. NAFTA, 339 S.W.3d at 101 (“[a] court must have a sufficient record of the
arbitral proceedings, and complaints must have been preserved, all as if the award were a court
judgment on appeal.”). Thus, Moore was required to object to the Arbitrator’s ruling denying the
postponement in order to preserve any error for review. Id.; TEX. R. APP. P. 33.1(a).
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04-18-00498-CV
Moore alternatively asserts she did comply with the 20-day Objection Rule because
Joseph’s letter to the Arbitrator dated November 9, 2017 constituted a timely objection and/or
request for reconsideration. However, Joseph’s letter merely provided more detail regarding his
family emergency and explained why Carraway was unable to represent Moore on her own.
Although it was sent within the twenty-day period for objections, Joseph’s letter cannot fairly be
construed as an “objection” or request for “reconsideration” of the Arbitrator’s ruling because the
letter’s substance does not contain any expression of an objection or any request that the Arbitrator
reconsider her decision to deny the continuance and proceed with the November 14-16, 2017
hearing. The letter ends by stating that Moore did not intend to ignore the “call to arbitration,” but
goes no further even though the hearing was still five days away. Indicating the Arbitrator did not
view Joseph’s letter as an objection or reconsideration request, her Award recites that “no
responsive pleading” was filed by Moore after the ruling denying postponement of the hearing.
As noted, Moore did not appear at the hearing and no one appeared on her behalf, so an objection
or request to reconsider was not made at the hearing. Moore first raised a complaint about the
Arbitrator’s denial of her request for postponement in her motion to vacate the Award filed on
April 26, 2018.
Based on the record before us, we therefore conclude that Moore failed to preserve her
complaint for review. TEX. R. APP. P. 33.1(a); NAFTA, 339 S.W.3d at 102.
Showing of “Sufficient Cause” to Postpone Hearing
Even if Moore had preserved her complaint for review, the record here does not support a
finding that she established “sufficient cause” for postponement of the arbitration hearing, and thus
fails to show the Arbitrator abused her discretion in denying the postponement. See State v. Crank,
666 S.W.2d 91, 94 (Tex. 1984) (granting or denial of continuance is matter of sound discretion).
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04-18-00498-CV
Tom Joseph Was Not Attorney of Record for Moore in the Arbitration
The Arbitrator’s decision denying Moore’s request for postponement relies on the fact that,
since her September 2015 order and as of her ruling on November 3, 2017, no attorney had entered
an appearance in the arbitration on behalf of Moore. The Arbitrator acknowledged the basis of
Moore’s request was Joseph’s family emergency, which prevented him from “com[ing] into the
case for Moore et al.” (emphasis added). The Arbitrator stressed in her ruling that Joseph was
“not an attorney of record in this matter” and during the two-year period since her last attorney
withdrew “no counsel, including [Joseph] . . . has made an appearance for Moore . . . .” Finally,
the Arbitrator noted that the notice of setting gave Moore one and one-half months to obtain an
attorney for the November 14-16, 2017 hearing.
Moore first argues that a formal appearance by counsel in the arbitration was not required.
However, Moore ignores the language in the Arbitrator’s September 17, 2015 order stating that
“[i]f no counsel files an entry of appearance in this arbitration by October 2, 2015,” then pleadings
and notices were to be served on Moore directly. (emphasis added). Moore’s argument is further
contradicted by references in the Arbitration Rules to counsel “appearing of record.” For example,
Rule 4 governing communications with the Arbitrator requires a copy of any correspondence with
the Arbitrator to be sent to the opposing party “or to counsel if one appears of record.” The
Arbitrator’s September 17, 2015 order and the Arbitration Rules clearly envisioned an entry of
appearance in the arbitration by a party’s counsel.
Moore next argues there was no reason for her to engage a new attorney to represent her in
the arbitration after the September 17, 2015 order because the disputes were resolved and there
was “no ongoing activity” in the arbitration until the November 14-16, 2017 hearing was set.
Moore also points out that, according to the 2015 order, “the only consequence” of her not having
an attorney was direct service of any pleadings or notices. The record shows, however, that John
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White filed his claim for breach of the Settlement Agreement on October 21, 2014; therefore, it
was pending at the time of the 2015 order. The record also shows that Moore engaged an attorney,
Dale Mockford, during 2016 to resist the post-judgment collection efforts by John White of the
$700,000 owelty owed by Moore under the 2015 Arbitration award; Mockford never appeared of
record on Moore’s behalf in the arbitration. When John White filed his amended claim for breach
of contract on September 6, 2017, he served Moore directly because no attorney had appeared for
her in the arbitration.
Finally, Moore argues that, even though no attorney had entered an appearance in the
arbitration on her behalf, “all opposing counsel and the Arbitrator were aware of Joseph’s
representation of Moore by at least October 13, 2017, the date on which Joseph was included on
the email distribution of the [Tuleta White] Parties’ joinder in the Amended Claim.” John White
responds that Joseph was copied “as a courtesy” because it was learned that Joseph attended a
meeting between Moore and Tuleta White and her counsel concerning the easement dispute
between them. In their briefs, John White and Tuleta White stress that it was unknown whether
Joseph would be representing Moore at the upcoming arbitration hearing, or merely informally as
other attorneys had done for Moore on related matters. Moore argues that on October 23, 2017,
Joseph again emailed Tuleta White’s attorney stating he would be representing Moore “on all
matters,” which included the upcoming arbitration. Carraway’s letter dated October 31, 2017
stated that Joseph “has represented Moore in some recent easement issues and did intend to
represent her in pending matters.” Even if Joseph intended to represent Moore at the upcoming
arbitration hearing on November 14-16, 2017, the record shows he had not entered an appearance
in the arbitration on behalf of Moore and had not otherwise notified the Arbitrator that he was
counsel of record for Moore on the amended breach of contract claim to be resolved at the
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04-18-00498-CV
upcoming hearing. Therefore, the Arbitrator’s reason for denying Moore’s request for
postponement, as stated in her written order, is supported by the record.
Request for Postponement Did Not Contain Sufficient Information
In addition, the information before the Arbitrator at the time of her ruling denying the
postponement did not establish sufficient cause to postpone the hearing. Moore asserts she
established “sufficient cause” for a postponement through her “three requests for postponement”
based on her attorney Joseph’s serious family emergency: the Carraway letter dated October 31,
2017; Moore’s email dated November 3, 2017; and Joseph’s letter dated November 9, 2017. The
determination of whether the Arbitrator abused her discretion in denying the postponement must
be based solely on the information before her at the time of her ruling. See Hamm v. Millennium
Income Fund, L.L.C., 178 S.W.3d 256, 272 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)
(appellate court may not evaluate trial court’s ruling based on materials that were not before it at
the time that it ruled). As noted above, Joseph’s letter providing more detail concerning his family
emergency was not sent until after the Arbitrator’s ruling denying the postponement on November
3, 2017. Thus, in reviewing the Arbitrator’s decision to deny a postponement, neither the trial
court nor this court can consider Joseph’s November 9, 2017 letter. 5
Looking at the two documents before the Arbitrator at the time of her ruling, Carraway’s
letter states only that Joseph intended to, but no longer could, represent Moore in the upcoming
arbitration matter due to a serious family emergency. Carraway’s letter provided no further detail
regarding the family emergency such as its nature, its expected duration, etc. Moore’s email a few
days later referred only to her “former attorney’s family emergency.” No further information was
provided to the Arbitrator before she made her ruling on November 3, 2017, the same day as
5
For the same reason, neither the trial court nor this court can consider Moore’s sworn declaration attached to her
motion to vacate.
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Moore’s email. In addition, these two requests for postponement were made approximately two
weeks before the scheduled arbitration hearing. Moore’s email states that she will “need at least
2 weeks to locate and hire a lawyer” and she is “currently interviewing a firm.” Carraway’s
October 31, 2017 letter states, “I know that Ms. Moore has actively begun trying to locate a new
attorney.” Both Carraway and Moore stated in their communications to the Arbitrator that, given
the lengthy history of the family dispute, a new attorney would need sufficient time to become
familiar with the case and suggested a 90-day postponement. In addition, the record reflects that
Moore has repeatedly changed attorneys during the course of the arbitration proceedings — on at
least two occasions, the attorneys’ withdrawal occurred shortly before a scheduled hearing. The
Arbitrator was entitled to consider Moore’s request for postponement of the November 14-16,
2017 hearing in the context of the entire case.
The term “sufficient cause” for postponement of an arbitration proceeding is not defined
in the statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a)(3)(B). Texas courts have
held that the Rules of Civil Procedure governing motions for continuance in a trial court are
“instructive.” See Mann v. Mann, No. 04-07-00154-CV, 2008 WL 577266, at *3 (Tex. App.—
San Antonio March 5, 2008, pet. denied) (mem. op.) (the grounds and procedure applicable to a
motion for continuance in a trial court are instructive in the context of “sufficient cause” under
section 171.088(a)(3)(B)); see also Hoggett v. Zimmerman, Axelrad, Meyer, Stern & Wise, P.C.,
63 S.W.3d 807, 811 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (same). Rule 251 states that
no continuance shall be granted “except for sufficient cause supported by affidavit” or by consent
of the parties or operation of law. TEX. R. CIV. P. 251. Rule 253 provides that, except as provided
elsewhere in the rules, “absence of counsel will not be good cause for a continuance or
postponement . . . except it be allowed in the discretion of the court, upon cause shown or upon
matters within the knowledge or information of the judge to be stated on the record.” TEX. R. CIV.
- 15 -
04-18-00498-CV
P. 253. Generally, when a movant fails to comply with Rule 251’s requirement that the motion
for continuance be supported by affidavit, the reviewing court presumes the trial court did not
abuse its discretion in denying the motion. See Villegas v Carter, 711 S.W.2d 624, 626 (Tex.
1986). However, as Moore notes, the courts have recognized that when an emergency leaves a
party without legal representation due to no fault of their own, the absence of an affidavit is not
dispositive. See id. Here, as discussed above, Joseph’s family emergency could not leave Moore
without legal representation where he had not yet entered the arbitration on her behalf. See Mann,
2008 WL 577266, at *1 (arbitrator who refused to postpone hearing based on attorney’s
unavailability reasoned that attorney had not made an entry of appearance in the arbitration or
obtained an order of substitution from the trial court). In addition, even setting aside the fact that
the two requests for continuance by Carraway and Moore were unsworn, the requests failed to
provide the Arbitrator with evidence of sufficient cause to postpone the hearing that was still two
weeks away.
For all of the reasons stated above, the record here does not reflect that the Arbitrator
clearly abused her discretion when she denied Moore’s request to postpone the arbitration hearing.
See Villegas, 711 S.W.2d at 626 (ruling granting or denying a motion for continuance will not be
disturbed unless the record discloses a clear abuse of discretion).
CONCLUSION
Based on the foregoing analysis, we overrule Moore’s issue on appeal and affirm the trial
court’s judgment denying Moore’s motion to vacate and confirming the Arbitration Award.
Liza A. Rodriguez, Justice
- 16 - | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3405136/ | The notice to terminate the tenancy involved here was insufficient as a matter of law.
DECIDED APRIL 10, 1948.
Radcliff Memorial Presbyterian Church Inc., whom we shall call the landlord, instituted a dispossessory warrant against George Pace, whom we shall call the tenant, for possession of the premises known as 436 Auburn Avenue N.E., Atlanta. The dispossessory warrant was instituted July 30, 1947. The affidavit alleged: that the tenant failed to pay the rent and was holding the premises over and beyond the term for which the premises were rented to him; that the landlord desired and had demanded possession of the premises, and that the tenant refused to deliver possession; that the landlord had complied with the rent regulations of the Office of Price Administration, in that the landlord had given the tenant proper notice with a copy to the Rent Control Office, on the following grounds, to wit: that the landlord seeks possession of the premises for the occupancy of the premises by the pastor of the church. The tenant filed a counter-affidavit. He denied that he owed any rent, and alleged that he had tendered the rent to the landlord, and that *Page 841
it had been refused; that he had been ready, able, and willing to pay the rent and had tendered the same and offered to pay the same into court; that he had not been served with any notice to vacate the premises; that he was a tenant at will, and that no demand had ever been presented to him to vacate the premises, as is provided by law.
A judge of the Civil Court of Fulton County, after hearing the evidence, found in favor of the landlord. The tenant duly appealed from this decision to the Appellate Division of the Civil Court. The appellate division affirmed the judgment of the single judge. It is on the judgment of the appellate division that the tenant assigns error and brings the case here.
The landlord introduced as a witness Mrs. Readie P. Ashurst, employed by the O. P. A. as housing expediter. The witness stated that she had the original registration of the premises in question known as 436 Auburn Avenue N.E.; that it was originally registered October 1, 1942. Mrs. Lula Pace was shown to be the tenant of the premises in question. The witness stated further that she had a certificate relating to eviction, on O. P. A. form D-7, dated December 26, 1944. Mrs. Lula Pace was shown to be the tenant on that form. The witness had O. P. A. form D-7 dated May 6, 1947, which showed George Pace to be the tenant of the premises in question. She identified a form dated May 6, 1947, form D-7, docket No. I. V. A. T. K. 7303, signed by James L. Taylor Jr., Rent Director for the Atlanta Defense Rental Area.
Dr. Thos. A. Slater testified for the landlord: He was chairman of the board of trustees for the landlord church and had been since 1939. He knew the tenant, and gave the tenant a notice to terminate the tenancy of the premises in question. The last notice he gave was on July 26. He gave the tenant notice to terminate prior to that time, on March 11, 1947; and the notice he gave to the tenant would be effective from March 22, 1947, to May 22, 1947. The witness further testified: Immediately prior to the filing of the dispossessory warrant on July 26, 1947, he made personal demand of the tenant for the premises in question. At the time of this demand, the tenant stated that he had no place to go and offered to pay the rental at that time. The tenant was paying at the end of the month. *Page 842
The rent he offered to pay "would have paid from the 22nd of that month to the 22nd of the following month." The same witness testified on direct examination that the church was seeking to recover possession of the premises for the purpose of occupancy by the pastor. On cross-examination, the witness testified that he went to see the tenant at the tenant's home on July 22, 1947, and told the tenant on June 22, 1947, that that would be the last rent he would collect from the tenant; that the witness would take the matter up with the board, and the tenant could come to see the witness the following Monday. The tenant came on Monday, and the witness told the tenant that the board said to turn the matter over to a lawyer. That is the only conversation had with the tenant about the rent. The last rent that the witness collected was May or June. The witness then testified concerning a certain memorandum which he had made; that he had no record of where he went to see the tenant on July 22, but that he did go to see him. The witness stated that he had a memorandum, and he got the date of the trial from that — got the date of the two months' notice to terminate the tenancy — that was the date of the trial, on March 11, 1947. The witness notified the tenant on March 11, 1947; notified the tenant on that date, in the courthouse lobby, to terminate the tenancy; that was the two months' notice. The witness further testified that the church wanted the property immediately, and as to whether "that's all," he testified: "I did say, we wanted the property and the church wanted the property because it needed it and wanted it immediately. As to whether what I have just said was all I told him: Isn't that a notice? I think it is a notice. That's all I told him, that's all I could tell him." The witness stated that he notified the tenant of the fact that the landlord was going to issue a dispossessory warrant, notified the tenant of that fact; "that was not after July 22nd;" notified the tenant as soon as the lawyer told the witness of the steps that would be taken. It was then July. "As to whether he has paid the rent until July 22nd, I couldn't tell you. I did not collect it; Taggert collected the rent; Taggert, the treasurer, collected the rent . . As to whether I know of any other notice that anyone else gave him except what I have just told you, nobody had any right to give any notice except myself." *Page 843
Joseph E. Buffington, attorney of record for the landlord, testified that on March 11, 1947, in the lobby of the courthouse of Fulton County he made demand on George Pace personally that the landlord was terminating the tenancy of the tenant two months from March 22, 1947 — May 22, 1947. On cross-examination, the same witness testified: "I know that he paid the rent after that time, on June 22nd; he paid me the rent at that time, up to date, it was paid up to the date of March 11, paid it to me . . I don't know that they collected a month after that, up to July 22nd, but I have been advised that the rent was paid up to July 22nd."
The tenant was called as a witness for the landlord, and upon being questioned by the attorney for the landlord, stated: The witness was present at the trial before Judge Bell in a proceeding between the landlord and the wife of the tenant, Lula Pace. In that proceeding the court held that there was no relation of landlord and tenant between Radcliff Memorial Presbyterian Church and Lula Pace. The witness did not recall any notice the tenant was given to terminate the tenancy as of March 11, 1947, to start March 22, 1947, and to become effective May 22, 1947. The witness recalled that he gave a receipt for the rental that was due up to that date. Dr. Slater did not give the witness any notice and Dr. Slater did not, shortly after July 22, 1947, demand the premises in question from the witness. On recross, the witness could not recall the date he went to the office of Dr. Slater and offered the rent and Dr. Slater refused; but it was after July 22, within a week thereafter. Dr. Slater wouldn't take it. Then it was that Dr. Slater informed the witness that the board had instructed that the matter be turned over to the attorney for the landlord. The witness testified that no rental had been paid since July 22, 1947. The witness, being questioned by his own attorney, testified: that he had paid the rent up to July 22, 1947, to Dr. Slater; that on July 22nd, he went to Dr. Slater's office because Dr. Slater did not come and get the money on July 22, and the witness went to see Dr. Slater because he got uneasy about the matter; that he carried the rent to Dr. Slater on that date; it was on Saturday afternoon. Dr. Slater stated to the witness that he would have to see the board, and for the witness to return *Page 844
Monday. The witness went back Monday. Dr. Slater informed him that the board had instructed Dr. Slater to give the case to the lawyer. No one gave the witness any notice or made any demand on him after July 22, no one gave the witness notice to get out after July 22, or June 22. The witness testified that there had been no other notice at all.
The landlord introduced a copy of the registration with the O. P. A. of the premises in question; the maximum legal rent of $25 per month in the name of Mrs. Lula Pace as tenant. The landlord introduced as an exhibit a document concerning the premises in question, omitting the formal parts, as follows:
"To: (Name and address of (Name and address of tenant)
petitioner) George Pace,
Radcliff Memorial Presbyterian 426 Auburn Ave., N.E.,
Church Atlanta, Georgia.
158 1/2 Auburn Ave., N.E.,
Atlanta, Ga.
"This certificate authorizes Radcliff Memorial Presbyterian Church or Dr. Thomas H. Slater to pursue his remedies for the removal or eviction of the tenant named above from the above-described accommodations in accordance with the requirements of the local law. The Rent Director finds that, subject to any conditions stated below, eviction or removal of the tenant is not inconsistent with the purposes of the Emergency Price Control Act of 1942, as amended, or of the Rent Regulation issued thereunder for this defense rental area.
"Conditions: The purpose for which eviction of the tenant is authorized is for occupancy by the pastor of the Radcliff Memorial Presbyterian Church.
"Action to remove or evict the tenant shall not be commenced sooner than three months after April 21, 1947. This certificate only authorizes an action to be brought for the eviction or removal of the tenant instituted in accordance with the requirements of local law and does not pass upon the merits of such action under such law. [Dated] May 6, 1947. [Signed] James L. Taylor Jr., Rent Director, Atlanta Defense-Rental Area."
The tenant introduced the following receipts: "Received from Mr. George Pace: Twenty-five and No/100 Dollars. Rent 436 *Page 845
Auburn Avenue N.E., May 22d to June 22d, 1947. [Signed] Radcliff Memorial Presbyterian Church, Per Thomas H. Slater, Clerk. $25.00."
"Received from Mr. George Pace: Twenty-five and No/100 Dollars. Rent from June 22d to July 22d, 1947. [Signed] Radcliff Memorial Presbyterian Church, Per Thos. H. Slater, Chairman."
This is substantially all the evidence in the record.
1. (a) The reason we have set out the evidence so fully is in order to discuss more clearly the issues. The evidence impresses us that only one notice was given by the landlord to the tenant. This notice was on March 11. 1947, and the two months' period allowed the tenant under the law of this State as a tenant at will was to begin on March 22, and terminate on May 22 following. Evidently the landlord was at that time under the impression that the tenant could be evicted after May 22. But as counsel for the landlord further inquired into the question, it is apparent that he came to realize that, where the owner of property desires possession of it for his own occupancy, the O. P. A. regulation in existence at that time, required 90 days' notice prior to eviction. Then it was that the landlord procured from the O. P. A. on May 6, 1947. An order authorizing the landlord to proceed with eviction proceedings to repossess the premises for its own use. It will be noted that this order was dated May 6, 1947. It will be further noted that it provided that the eviction proceedings could not be instituted earlier than 90 days from April 21, 1947. This order further provides: "Notice to Tenant: This form does not order you to move. The issuance of this certificate does not effect your rights at local law under present rental agreement." There is not a word of evidence in the record that this notice was ever served on the tenant.
(b) It is conceded by counsel for the landlord that, were it not for the 90 days' notice required under O. P. A. regulations, in a case of this sort, the acceptance of the rent after May 22, 1947, would have created a new tenancy at will, and that before *Page 846
the landlord could evict it would be necessary under the law to give a new 60 days' notice of intention to evict. This is for the reason that the acceptance of rent after the termination of the 60 days' notice is a waiver and invalidates the 60 days' notice required under the law. So also, the acceptance of the rent for July would work the same result. It therefore follows that by accepting rent for June and July, the tenancy at will, under the State law, was extended for those periods. Under this record it is not shown that any notice was given for the beginning or the termination of the 90 days' period covered by the O. P. A. regulations. The only definite notice given, so far as this record shows, was on March 11, 1947, to cover a two months' period from March 22, 1947, to May 22, 1947. We do not understand why the O. P. A. authorization, which was dated on May 6, 1947, was retroactive to April 21, 1947. Certain it is that the record does not reveal any notice whatsoever to the tenant that he would be evicted after the expiration of 90 days from April 21, 1947. It therefore follows that the 90 days' notice, as required under the O. P. A. regulations, effective and in operation on March 11, 1947, and May 6, 1947, was not complied with.
To sustain the contention of the landlord, its counsel citesSimpson v. Blanchard, 73 Ga. App. 843 (3) (38 S.E.2d 634). That decision is not authority to sustain the kind of notice here revealed by the evidence. As somewhat on the question before us, see Mattox v. Chapman, 67 Ga. App. 467
(20 S.E.2d, 859); Harrell v. Souter, 27 Ga. App. 531
(109 S.E. 301). Also, in Willis v. Harrell, 118 Ga. 906, 909
(45 S.E. 794), the court said: "It takes very little to convert a tenancy at sufferance into a tenancy at will. Receipt of rent, demand for rent, or anything that indicates the permission of the landlord for the tenant to remain in possession, will have this effect." The court there, it is true, was dealing with the difference between a tenancy at sufferance and a tenancy at will. We are sure, however, that the principle applies also to a situation where, as here, the landlord had given a definite date for termination of a tenancy at will and thereafter accepted rent, and the landlord thereby renewed the tenancy at will, nothing more appearing. And thereafter, in order to proceed under 2 months' notice of the State's statute or the 90 days' notice under the O. P. A. regulations, another notice is *Page 847
required by law for a date of termination under either the State law or the provisions of the O. P. A. regulations. The evidence shows that the rent was paid or duly tendered and refused.
Under a situation as revealed by this record, we are reluctant to disturb the judgment of the court below, but feel that under the law we are constrained to do so.
Judgment reversed. MacIntyre, P. J., and Townsend, J.,concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4240361/ | J-A03007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANDRE MURRAY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DOMINIC TRIPODI & JOSEPHINE :
TRIPODI :
:
APPEAL OF: JOSEPHINE TRIPODI : No. 98 EDA 2017
Appeal from the Order November 15, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2014 No. 0495
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 30, 2018
Appellant, Josephine Tripodi, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which vacated the jury verdict
awarding Appellee Andre Murray no damages for pain and suffering and
granted Appellee a new trial on non-economic damages, in this negligence
action. On June 4, 2014, Appellee filed a complaint against Appellant and
her husband Dominic Tripodi, claiming the Tripodis negligently failed to
remove snow and ice on their property within a reasonable amount of time
following a snow event in February 2014, which caused Appellant to slip and
fall and sustain injuries. The parties proceeded to compulsory arbitration on
January 20, 2016; the panel decided Appellant was not negligent. The
parties stipulated to dismiss the claims against Appellant’s husband.
Appellee timely filed a notice of appeal to the Court of Common Pleas on
January 22, 2016.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03007-18
On August 31, 2016, a jury found Appellant liable and awarded
Appellee $2,729.00 in damages for medical expenses but awarded no
damages for pain and suffering. On September 7, 2017, Appellee filed a
post-trial motion for a new trial on damages. Appellant subsequently filed a
post-trial motion seeking judgment notwithstanding the verdict (“JNOV”).
On November 15, 2016, the court granted Appellee’s post-trial motion for a
new trial on damages and denied Appellant’s post-trial motion for JNOV.
Appellant timely filed a notice of appeal on December 9, 2016. By order
entered December 12, 2016, with Pa.R.C.P. 236 notice issued the next day,
the court directed Appellant to file a concise statement of errors per
Pa.R.A.P. 1925(b), within 21 days. Appellant electronically filed her
statement on the docket on December 30, 2016. The certificate of service
indicates counsel hand-delivered the statement to the trial judge’s chambers
on that date.
Preliminarily, appellants must timely comply whenever the trial court
orders them to file a Rule 1925(b) concise statement. Commonwealth v.
Lord, 553 Pa. 415, 719 A.2d 306 (1998). Regarding civil cases:
Our Supreme Court intended the holding in Lord to
operate as a bright-line rule, such that failure to comply
with the minimal requirement of Pa.R.A.P. 1925(b) will
result in automatic waiver of the issues raised. Given the
automatic nature of this type of waiver, we are required to
address the issue once it comes to our attention. …
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224 (Pa.Super. 2014) (en banc) (internal citations and
-2-
J-A03007-18
quotation marks omitted) (emphasis omitted). In addition to filing a concise
statement on the docket, an appellant must concurrently serve the trial
judge. Pa.R.A.P. 1925(b)(1). Failure to serve the trial judge can constitute
waiver of issues on appeal. See Forest Highlands Community Ass’n v.
Hammer, 879 A.2d 223 (Pa.Super. 2005) (explaining Rule 1925(b) imposes
waiver consequences upon appellant who fails to serve trial judge with
concise statement of errors). Nevertheless, upon application of an appellant
for good cause shown, this Court may remand in a civil case for the filing of
an initial, amended or supplemental concise statement and/or a
supplemental trial court opinion. See Pa.R.A.P. 1925(c)(2), Note.
Instantly, by order entered December 12, 2016, with Rule 236 notice
issued the next day, the court directed Appellant to file a Rule 1925(b)
statement. Thus, Appellant’s concise statement was due January 3, 2017.
Appellant electronically filed her statement on the trial court docket on
December 30, 2016. The certificate of service indicates counsel hand-
delivered the statement to the trial judge on that date. Nevertheless, the
court issued a Rule 1925(a) opinion, acknowledging that Appellant timely
filed her concise statement electronically on the docket but insisting
Appellant failed to serve the trial judge until January 9, 2017, constituting
waiver of all issues on appeal. Consequently, the trial court declined to
address any of Appellant’s issues on the merits. In response, Appellant filed
an application for relief in this Court, claiming appellate counsel personally
-3-
J-A03007-18
hand-delivered the concise statement to the trial judge’s chambers on
December 30, 2016. Counsel stated he knocked on the door of the trial
judge’s chambers and, when no one answered, he placed the statement in
the appropriate mail slot around 1:30 p.m. on that date. Appellant attached
to the application for relief, inter alia, a copy of the cover letter with the
concise statement, dated December 30, 2016, and an affidavit swearing and
affirming counsel personally hand-delivered the statement to the trial
judge’s chambers on that date. This Court denied the application without
prejudice to renew the issue before the merits panel.
Under these circumstances, particularly in light of court closures and
vacations around the New Year’s holiday, Appellant has demonstrated good
cause to consider her Rule 1925(b) statement as timely filed and delivered
to the judge on December 30, 2016. Accordingly, we remand for a
supplemental trial court opinion addressing all issues raised in Appellant’s
Rule 1925(b) statement, within 30 days from the date of remand. See
Pa.R.A.P. 1925(c)(2), Note. Oral argument shall proceed as scheduled,
unless this Court is notified otherwise.
Case remanded with instructions. Panel jurisdiction is retained.
-4-
J-A03007-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/18
-5- | 01-03-2023 | 01-30-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3405407/ | The court erred in rejecting certain documentary evidence offered by the defendant.
DECIDED APRIL 23, 1946.
The accused was convicted of an assault with intent to murder, his motion for a new trial was overruled, and that judgment is assigned as error. The evidence authorized the jury to find as true the following facts: On October 10, 1944, in the City of Douglas, Jack Young, a city policeman, saw the defendant asleep in a chair in a filling station, near a sidewalk and in full view of any persons walking thereon. The defendant was drunk, and Young approached him, told him that he (defendant) was drunk and arrested him. Young was in the uniform of a city policeman, and took hold of the defendant and they walked together on the street for about 100 feet, and the defendant was cursing and said, "Jack, God damn it, I ain't going to the calaboose." He said that several times. A little later on, he grabbed Young's gun and said: "I got your gun and I am going to blow your God damn heart out." Young also got part hold of the gun, and in the struggle the gun was fired and Young was shot. The bullet went through Young's arm and into his chest. The defendant kept his grip on the gun all through the struggle, and it was taken from him by a bystander after the shooting. *Page 730
The defendant in his statement to the jury said: that, when he was a boy, he was thrown out of a buggy when a horse ran away, and that the accident made a lesion on his brain and caused him to have "spells" and to lose his memory; that he continued to have such spells as he grew older, and after he went into the Army; that he was taken to an Army hospital and treated there for several months and finally discharged from the Army; but that his mental trouble continued, and on the day when policeman Young was shot, his (defendant's) mind was bad and he knew nothing about the shooting or about his arrest by Young. The defendant also introduced testimony tending to show that he occasionally had epileptic fits. He also offered for evidence a document showing his clinical record as recorded in the Army hospital at Keesler Field, Mississippi. This documentary evidence was rejected; and that ruling is assigned as error in a special ground of the motion for new trial. The certificate to the clinical record reads: "I certify that the above is a true abstract of the clinical record of Gordon L. Rowland, 34587145, who was hospitalized at this station on the dates indicated. George J. Crabner, 1st Lt., MAC, Registrar." The record disclosed that Rowland was admitted to the hospital in January, 1943, and was discharged in May, 1943. The State contends that the document was properly rejected because an "abstract" of a record is not a certified copy thereof. We can not agree with that contention. Webster's Dictionary defines the word "abstract" as "a summary or epitome containing the substance" of something. In this case the "abstract" consists of two and one-half closely typewritten pages and apparently left out nothing of the defendant's condition, history, and treatment. The document tended to support the defendant's statement to the jury and the other testimony in the case as to his mental condition at the time he shot the policeman, and was admissible for what it was worth. The error in excluding the document from the evidence was not cured by allowing the defendant to read it as a part of his statement to the jury.
Since another hearing must be had, it is not necessary to pass on the ruling denying the motion for a continuance on the ground of an absent witness. *Page 731
The remaining special grounds are without substantial merit, and the general grounds are not now considered.
Judgment reversed. Gardner, J., concurs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523799/ | DENIED and Opinion Filed April 8, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00359-CV
IN RE KELDRICK GREEN, Relator
Original Proceeding from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F96-14798-RT
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Evans
Opinion by Justice Myers
In this original proceeding, Keldrick Green seeks a writ of mandamus to
compel the trial court to order the State to produce discovery materials arising from
his 1996 trial. Relator claims he needs the discovery for a prospective 11.07 writ
application. Relator alleges he filed a motion for discovery in the trial court seeking
the State’s responses to any motions, witness statements, police reports, DNA
evidence, book-in sheets, exhibits, statements from the complainant, tape recordings
and videotapes, any exculpatory evidence, and any inducements, arrangements,
agreements or promises offered to any of the witnesses. Relator further alleges the
trial court denied his motion for discovery by order entered November 20, 2019.
A petition seeking mandamus relief must contain a certification stating that
the relator “has reviewed the petition and concluded that every factual statement in
the petition is supported by competent evidence included in the appendix or record.”
TEX. R. APP. P. 52.3(j). Relator’s petition does not contain a certification and thus
does not comply with rule 52.3(j). See id.; In re Butler, 270 S.W.3d 757, 758 (Tex.
App.—Dallas 2008, orig. proceeding).
Furthermore, rule 52.3(k)(1)(A) requires the relator to file an appendix with
his petition that contains “a certified or sworn copy of any order complained of, or
any other document showing the matter complained of.” TEX. R. APP. P.
52.3(k)(1)(A). Rule 52.7(a)(1) requires the relator to file with the petition “a
certified or sworn copy of every document that is material to the relator’s claim for
relief that was filed in any underlying proceeding.” TEX. R. APP. P. 52.7(a)(1).
Relator has attached copies of his motion for discovery and the trial court’s
order to his petition, but the documents are not certified or sworn copies and thus
not properly authenticated under the rules of appellate procedure. As the party
seeking relief, relator has the burden of providing the Court with a sufficient
mandamus record to establish his right to mandamus relief. Walker v. Packer, 827
S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Without an authenticated record,
relator cannot show he is entitled to relief. See Butler, 270 S.W.3d at 759.
Moreover, to establish a right to mandamus relief, relator must show that the
trial court violated a ministerial duty and there is no adequate remedy at law. In re
–2–
State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding).
The trial court has ruled on relator’s motion and relator does not identify any other
ministerial duty the trial court has not performed.
After the trial court’s plenary jurisdiction expires, it does not retain general
jurisdiction over a case. State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002)
(plurality op.). The trial court retains limited jurisdiction to address certain matters
such as ensuring that a higher court’s mandate is carried out, fact finding on habeas
applications, and presiding over post-conviction DNA testing. Id. Relator’s effort
to obtain discovery from the State does not fall within the trial court’s limited
continuing jurisdiction. See id. Thus, we cannot conclude the trial court violated a
ministerial duty by denying relator’s motion for discovery.
Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R.
APP. P. 52.8(a) (the court must deny the petition if the court determines relator is not
entitled to the relief sought).
/Lana Myers/
LANA MYERS
JUSTICE
200359F.P05
–3– | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3987190/ | I concur in the opinion of Judge EVANS. I am well satisfied with the holding that under a charge of misappropriating a credit, the check or draft need not be described with greater particularity than found in this information. The rule applicable in prosecutions for forgery does not apply here.
I am not so well satisfied as to the second point, but am impelled to concur because the defect or ambiguity was not pointed out by defendant at any time prior to the decision of this court. This convinces me that the defendant was not misled or prejudiced in any way by any claimed ambiguity with respect to the ownership of the credit. The information twice affirmatively and positively alleged that such credit was owned by the Utah Poultry Producers Co-operative Association. If defendant had been misled in any respect, undoubtedly his counsel would have urged the matter in brief and argument. As it is the objection was waived. This court has no duty to scrutinize the record in order to discover errors, not called to its attention, on which to base a reversal. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523791/ | DISMISS and Opinion Filed April 8, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00420-CV
THE ESTATE OF MAYBELLENE ANDERSON, DECEASED
On Appeal from the Probate Court No. 2
Dallas County, Texas
Trial Court Cause No. PR-16-01315-2
MEMORANDUM OPINION
Before Justices Schenck, Molberg, and Nowell
Opinion by Justice Schenck
Before the Court is appellants’ motion asking that we withdraw their notices
of appeal. Appellants inform the Court that they no longer desire to pursue this
appeal. We construe the motion as a motion to dismiss the appeal. We grant the
motion and dismiss this appeal. See TEX. R. APP. P. 42.1(a)(1).
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
190420F.P05
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE ESTATE OF MAYBELLENE On Appeal from the Probate Court
ANDERSON, DECEASED No. 2, Dallas County, Texas
Trial Court Cause No.
No. 05-19-00420-CV PR-16-01315-2.
Opinion delivered by Justice Schenck.
Justices Molberg and Nowell
participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee U.S. Bank National Association as Legal
Title Trustee for Truman 2016 SC6 Title Trust recover its costs of this appeal from
appellants Jackquelyn Strickland, Erika Johnson, and Carlester Harper.
Judgment entered this 8th day of April, 2020.
–2– | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/93586/ | 148 U.S. 615 (1893)
CASEMENT
v.
BROWN.
No. 173.
Supreme Court of United States.
Submitted March 24, 1893.
Decided April 10, 1893.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.
*621 Mr. W.A. Hutchins and Mr. J.W. Bannon for plaintiffs in error.
Mr. Thornton M. Hinkle, for defendants in error.
MR. JUSTICE BREWER delivered the opinion of the court.
The defendants contend: First, that they were not independent contractors, but employés of the railroad companies, *622 and that, therefore, the railroad companies and not themselves were responsible for any negligence; second, that they were not guilty of any negligence; and, third, that if they were, the plaintiffs were also guilty of contributory negligence, and therefore debarred from any recovery.
With reference to the first contention: Obviously, the defendants were independent contractors. The plans and specifications were prepared and settled by the railroad companies; the size, form and place of the piers were determined by them, and the defendants contracted to build piers of the prescribed form and size and at the places fixed. They selected their own servants and employés. Their contract was to produce a specified result. They were to furnish all the material and do all the work, and by the use of that material and the means of that work were to produce the completed structures. The will of the companies was represented only in the result of the work, and not in the means by which it was accomplished. This gave to the defendants the status of independent contractors, and that status was not affected by the fact that, instead of waiting until the close of the work for acceptance by the engineers of the companies, the contract provided for their daily supervision and approval of both material and work. The contract was not to do such work as the engineers should direct, but to furnish suitable material and construct certain specified and described piers, subject to the daily approval of the companies' engineers. This constant right of supervision, and this continuing duty of satisfying the judgment of the engineers, do not alter the fact that it was a contract to do a particular work, and in accordance with plans and specifications already prepared. They did not agree to enter generally into the service of the companies, and do whatsoever their employers called upon them to do, but they contracted for only a specific work. The functions of the engineers were to see that they complied with this contract "only this, and nothing more." They were to see that the thing produced and the result obtained were such as the contract provided for. Carman v. Steubenville & Indiana Railroad Company, 4 Ohio St. 399, 414; Corbin v. American *623 Mills, 27 Connecticut, 274; Wood on Master and Servant, 610, § 314.
It is unnecessary to inquire whether, because of the supervision retained by the companies through their engineers, or because the work which was done was work done on a public highway, the companies might also be responsible for any negligence in the progress of the work. 2 Dillon on Municipal Corporations, 4th ed., § 1030; Cleveland v. King, 132 U.S. 295; Chicago v. Robbins, 2 Black, 418; Robbins v. Chicago, 4 Wall. 657; Water Company v. Ware, 16 Wall. 566. It is enough for this case that these defendants contracted to do the work, and to produce a finished structure according to certain plans and specifications, and having made such contract, and engaged in such work in accordance therewith, they are responsible for all injuries resulting from their own negligence. While doubtless the original written contract would cast upon the defendants as contractors the duty of taking all reasonable precaution, by buoys or otherwise, to warn those travelling on this public highway of any danger arising from their work, yet, in addition, it appears that there was a special contract by which they agreed to furnish the material and perform the work of preparing and keeping in place buoys and lights to warn against all danger. Surely, having made a contract to do the entire work, and in addition a special agreement to keep proper buoys and lights in place to warn persons of danger, it does not lie in their mouths to say that their negligence and omission of this contractual duty cast no responsibility upon themselves, but was only the negligence and omission of duty of the railroad companies, for which the latter, and the latter alone, were responsible.
Secondly, equally clear is it that they were guilty of negligence in failing to replace the buoy over this submerged pier. According to the findings, they knew that that which had been there had been carried away, and had ample time to put another in its place. They knew of the submerged pier, and of the danger to boats therefrom; they knew what was necessary to guard against that danger, for they had previously been taking the proper precautions. Having omitted to replace *624 the buoy, although they knew of the necessity therefor and had ample time to do so, or otherwise to warn of the danger, they were guilty of negligence, and responsible for all injuries which resulted therefrom.
But the stress of this case arises on the third of their contentions, and that is, that the plaintiffs were guilty of contributory negligence. It is said that the river was so high that it was dangerous to attempt to run a steamboat with barges down the current; that the piers on the shores, on either side, were visible, and in fact seen by the pilots, and thus they knew the line on which were placed the then submerged piers in the river; that they were familiar with the river at this place, knew that a bridge was being constructed, and during its construction had passed there twice a week, and saw and knew where the piers were located, and to what extent the work had progressed; that the day was clear, and the steamer under control, steaming and handling well; and that although approaching where they knew were these partially constructed piers, and seeing that they were submerged, no halt was made, nor any one sent forward to take observations or make inquiry. In view of these facts, it is strenuously urged that the pilots and officers of the steamboat were guilty of negligence which contributed directly to the injury, and that, therefore, the plaintiffs, being responsible for the negligence of their agents and employés, cannot recover. It must be conceded that these facts, thus grouped together, point in the direction of negligence on the part of the pilots and officers. They knew that there was danger there, and, therefore, were bound to take suitable precautions to guard against it; they knew that pier "D" was near the Ohio shore, and that its construction had progressed further than that of the other piers, and still they did not direct the course of the boat away from that shore, and into the unobstructed channel.
On the other hand, it must be observed that the mere fact of high water does not establish negligence on the part of the plaintiffs. Indeed, as water is a necessity for and means of steamboat navigation, it would seem that the more water the less danger. If it be said that the increased volume of water *625 increases the current, and, therefore, the difficulty of controlling the motions of the vessel, it is enough to say that the findings show that there was no difficulty or danger in this case on that account. The injury resulted from a submerged obstruction, and the more water there is, apparently the less danger from such sources. It is true, the findings state that business on the river was partially suspended on account of the high water. That may have been because prudent men were unwilling to risk the dangers, arising therefrom, or because everything on the river driven by steam power was needed to prevent the high water from carrying away personal property along the shore, and to collect that which was being borne away. Whatever may have been the reasons, the fact that business was only partially suspended is satisfactory evidence that it was not in and of itself negligence for these plaintiffs to attempt to run their boats down the river. If it be said that the pilots ought to have taken the boats farther out into the channel, it is sufficient answer that it is found as a fact that it was both customary and proper for coal fleets, such as these, to keep somewhat near the Ohio shore at this place, "running the points," as the expression is, and the fact that, in this case, they miscalculated the exact location of the submerged pier does not subject them to the condemnation of negligence. It seems from this finding that they were pursuing the proper as well as the customary course, and a mere error of judgment is not; under such circumstances, negligence. While it is true the findings state that the pilots knew where the piers were located, and to what extent the work had progressed, having been in the habit of passing there twice a week during the construction, yet it is not to be assumed therefrom that the court meant to find that these pilots knew the exact height to which pier "D" had been carried, the exact stage of the water at the time, and, therefore, the exact depth of the water above the pier, and also its exact location in the river. All that can reasonably be inferred from the language is, that they possessed such knowledge of the location and construction of the piers as they would acquire from passing up and down the river twice a week in boats. And in reviewing a judgment *626 it is not proper to place any narrow, strained or strict construction on the language with which the court describes its findings of fact, in order to sustain the contention that they do not support the conclusions of law and the judgment. On the contrary, if any reasonable and fair construction thereof will sustain the judgment, such construction should be recognized and adopted by the appellate court as the true construction. If it be said that, knowing, as they did, that somewhere in the line between the two shore piers was this submerged pier "D," they should have ascertained for a certainty its exact position before proceeding on their course, it may be replied that the fact that this was an artificial obstruction, placed there by parties still engaged in the construction of a bridge across the river, and, therefore, having a present duty of caring for the structures and seeing that no one was injured thereby, is a fact of significance. If it was a natural obstruction, one in respect to which no party had any duty of preservation or warning, it might be that the obligation resting upon the pilots would be of a different and more stringent character. But they knew that here a great work was being constructed by these defendants; that it was their duty to give all needful warning to persons and boats going up and down the river; and that, if there were no buoys in place or other warning given, they might fairly conclude that all of these piers were so far submerged as to threaten no danger to passing boats.
Further, as appears from the findings, they saw no break in the water, nothing which would indicate that the top of the submerged pier was near the surface. And still further, one of the boats in the fleet had but shortly before passed there in safety. They evidently relied on two facts: First, that the appearance of the water in the course they were taking indicated that the pier, if in that course, was so far submerged as to threaten no danger; and, secondly, that if there were any danger to be apprehended from such an obstruction, the parties in charge of the work would have indicated by buoys or otherwise the place of the danger. Shall they be condemned because they relied upon the defendants' faithful discharge of the duty of giving suitable warning, and in the absence of such warning *627 believed there was no danger, and seeing nothing in the appearance of the water to suggest danger, pursued that which was the customary and proper course for boats to pursue in passing from above to below the line of the bridge? It appears from the findings that the lookout was not confined to one person, but that several were gathered in the pilot-house, on the lookout for all indications of danger, and all customary guards and warnings.
We are of opinion that the conclusion of the Circuit Court was right, and that it would be placing too severe a condemnation on the conduct of the pilots in charge of the boats, to say that their error of judgment, their dependence on the appearance of the stream, and their reliance upon the duty of the defendants to place suitable buoys or other warnings, was such contributory negligence as would relieve the defendants from liability for the results of their almost confessed, and certainly undoubted, negligence.
The judgment is affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3405250/ | The evidence was insufficient to authorize a finding that the hernia alleged to have been sustained by the claimant for compensation arose suddenly, or that it arose immediately following an accident.
DECIDED DECEMBER 5, 1941. REHEARING DENIED DECEMBER 15, 1941.
George C. Beckmann, on April 24, 1940, filed with the Industrial Board a claim for compensation against his employer, Quality Motors Incorporated, in which he stated that he "was injured on January 17, 1940, while moving an oil drum, having felt something slip in his groin which developed to be a hernia," and that "he has been examined and treated by Dr. R. E. Oliver . . who advises an immediate operation and wearing of a truss." This claim was heard before Honorable Harry E. Monroe, a member of the Industrial Board, on July 10, 1940. The employer admitted that on January 17, 1940, the claimant was employed by it as service manager at $37.50 a week. The employer and insurance carrier denied that the claimant had sustained an accidental injury causing a hernia while engaged in the performance of the duties of his employment.
Dr. Robert E. Oliver, a practicing physician, testified for the claimant in part as follows: "I examined Mr. Beckmann about January 17 this year. After that I examined him about the 31st. He now has a hernia. There is an apparent protrusion at this *Page 370
time. I have prescribed an operation for him. At the time I first examined him there was no bulging, there was tenderness over the external inguinal ring. His condition was such at that time that after an examination I thought there was no hernia present; that there was only a strain of the ligaments and muscles in the inguinal region." Q. "If there were a slight tear in the abdominal wall which would only admit a small protrusion, would that only be discernable by an incision at that point, or could that be told by feeling?" A. "Of course there is a limit to the size of the protrusion that you could probably feel with the finger. There might have been such an injury that rent any tissues that you couldn't feel. The only way you could find out would be by incision. I have known Mr. Beckmann sometime, and have never known him to have a hernia before this. From my experience as a physician I know it is a definite fact that hernias start from some initiative cause, and that they progress in size as time goes on with additional work, the bulging becomes more and more pronounced. The examination that I made was at Mr. Beckmann's request."
The claimant testified in part as follows: "On or about January 17 of this year I had an injury at the place of business. I was heading up a barrel of oil, and just as I started to lift it up I felt a pain in my side, down in the region of my groin. I had to let it back down. I couldn't keep on working. My job is not a laborer's job. I was able to continue work. My position is supervisor, not laborious work. As soon as I felt that pain I didn't move for a second or two. . . I did not slip or fall or have an accident of any kind. It was just an ordinary strain."
B. L. Duke testified in behalf of the claimant in part as follows: "I am employed by Quality Motors and I was in Mr. Beckmann's department about January 1. I remember what happened that day when Mr. Beckmann was lifting a drum of oil. We buy oil in bulk; barrels contain 55 gallons. It weighs about 300 pounds. It requires two men to lift the barrels and Mr. Beckmann and I were heading up one when he seemed to be in pain, and later on during the day he remarked to me that he thought he had ruptured himself lifting the barrel. The only thing I noticed happened at the time we were lifting it he seemed to be in pain and was holding his side. He let go of the barrel."
The claimant further testified as follows: "The next day Dr. *Page 371
Oliver came. He is a customer. While he was there I told him I had a pain in my side and went in the washroom, and he told me to take my clothes down and he examined me. I still have pain there. It goes and comes. It kept on hurting a little worse and worse, and the next time the doctor came in the latter part of the month I asked him to examine it again. It was around January 31. There was a swelling at that time. He punched up there, and I hollered. I had never had a rupture before. I have not lost my salary. My claim is entirely for surgical fee for an operation which I am willing to undergo." Q. "You did not feel any pain at that time?" A. "It must have hurt or I wouldn't have asked the doctor to look at it. I had pain enough to let the barrel down, and I called Mr. Duke." Q. "It was a couple of days later before you felt pain?" A. "No, it was the next day when the doctor came in." Q. "Was it the next day when you felt pain?" A. "No, that is when the doctor examined it." Q. "Did you feel any pain at that time? You said you didn't, didn't you?" A. "I don't know. . . It must have pained me or I couldn't [wouldn't] have called the doctor. My guts didn't fall right down on the floor." Q. "You signed a statement, `I didn't feel any pain and did not do anything about it until a couple of days later when for the first time I began to feel pain'?" A. "It was the next day when it gave me a lot of trouble. At the time this happened I must have felt pain. I dropped the barrel. As to which is correct, I must have had a pain or I wouldn't have dropped the drum. I did not report it at that time to any one connected with the Quality Motors. The first report I made was on January 31 when I handed the report to Mr. Ferguson. I didn't send for Dr. Oliver; he just happened in. I know he comes in about every two weeks to have his car fixed." The claimant testified on redirect examination in part as follows: "I am foreman of the service department and all notices like that are submitted to me. On the date of the accident I had enough discomfort to drop the barrel. I still work for the Quality Motors and have lost no time."
The employer and insurance carrier introduced in evidence the signed statement of the claimant as follows: "I am employed as service manager of the Quality Motors at a salary of $37.50 a week. On the 17th day of January, 1940, at about 5 o'clock in the afternoon, *Page 372
I was moving an oil drum and felt something slip in my groin. I did not feel any pain and did not do anything about it until a couple of days later when, for the first time, I began to feel a pain. Dr. Robert L. Oliver happened to come in the place and I asked him to examine me. He examined me at that time and said that there appeared to be a slight strain. He did not prescribe any treatment except to stay off my feet as much as I could. It kept hurting me, and about two weeks later he examined me again and told me that I was ruptured. At the time that I moved the drum I did not slip or fall. It was just the strain. I did not think anything of it at the time as it seemed to be just a slight strain, and did not make any report of it until the 31st day of January when I made up the report. This was the day of, or the day after, the second examination by Dr. Oliver. The same day that I made up the report I gave it to Mr. Ferguson. When Dr. Oliver first examined me he felt the injured place and had me cough. He said that I only appeared to have a slight strain, but said nothing about my being ruptured. Some of the men who have been injured at the plant have been sent to Dr. Oliver. I have never been ruptured nor examined for a rupture nor worn a truss before this time. I have had no general physical examination that I can remember by any doctor for probably fifteen years. The reason that I made no report of this occurrence until after the second examination was because I did not think that I had been hurt, and thought nothing of it until Dr. Oliver told me that I had a rupture."
The claimant, recalled, testified: "I did not write this statement. They wrote it out and I signed it. I first made a statement of the entire matter before witnesses, then this was dictated in my presence. After it was finished I was asked if it was correct, then a copy of it was sent to me at my place of business. I read it over carefully and made a correction of it then and eventually signed it, and sent it back. I have never had any pain before. I am such a man that I did not have any experience with hernias. I didn't know there had to be pain immediately following the accident. Being such a man I could take it, although I suffered discomfort I didn't call it pain at that time. I feel the same way now as I felt then. I have a numbness like your foot goes to sleep. That is the way I felt the time I lifted it as far as I can remember. As far as I can remember I felt pain." *Page 373
Dr. Oliver, recalled, testified: "At the time I examined Mr. Beckmann on January 18 I probed around the region of the groin. It was very tender. He told me at that time that he had pain in his side and that is the reason I examined him to determine what the pain was coming from. That was the day after the accident."
The employer and insurance carrier read into the record the following statement of the general manager of the employer, Dale Critz: "A few days after January 31, 1940, a report was given me of an injury sustained by George Beckmann, who is employed by the Quality Motors Incorporated as service manager. I had no notice whatsoever of any injury to him prior to that time, nor as far as I have been able to find by complete investigation did he report the matter to any one prior to that date when he handed Mr. Ferguson the first report of injury. I did not provide medical treatment for him nor advise him to see Dr. Oliver. I did not authorize any one else to do so."
On July 10, 1940, Director Harry E. Monroe rendered an award in which he found as a matter of fact that the claimant "on January 17, 1940, while performing a service for his employer . . which service arose out of and in the scope of his employment in that the claimant was handling a barrel of oil and as he started to lift it up he let the barrel down and couldn't keep working, `that at the time of lifting said barrel he had a sensation causing him to know that he had received some injury;'" that "claimant is now suffering from hernia and did not have hernia prior to January 17, 1940," that the "injury arose out of an accident in that in so far as claimant was concerned it was not expected or designed and must necessarily within the purview of the workmen's compensation act be classified as an accident; that the strain causing said hernia amounts to an accident within itself; that no compensation is payable since salary of the claimant has not been diminished;" and accordingly found that the employer and insurance carrier furnish the claimant a radical operation for the cure of the hernia and pay all reasonable medical and hospital expenses incident to the operation not exceeding $500.
From this award the insurance carrier and employer appealed directly to the superior court on the ground that the facts found by the director did not support the award; that there was no competent evidence in the record to warrant the award and that such *Page 374
award was contrary to law. The appeal was denied by the superior court on April 9, 1941, and to this judgment the employer and insurance carrier excepted. No compensation was awarded the claimant, but the board found that the employer was liable to furnish the claimant with a radical operation. The claimant insists that he sustained a compensable hernia while engaged in the performance of his duties as service manager of his employer, and that he should be treated in a surgical manner by a radical operation at the expense of his employer. The employer and insurance carrier deny any liability, and contend that the award was erroneous for the reason that it was not "definitely proved to the satisfaction" of the director that such hernia resulted "from an injury by accident arising out of and in the course" of the employment for the reason that it appeared from the evidence before the director that the hernia suffered by the claimant resulted from an injury sustained by him in the ordinary performance of his duties.
"In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee's employment it must be definitely proved to the satisfaction of the Department of Industrial Relations: First, that there was an injury resulting in hernia; second, that the hernia appeared suddenly; third, that it was accompanied by pain; fourth, that the hernia immediately followed an accident; fifth, that the hernia did not exist prior to the accident for which compensation is claimed. All hernia, inguinal, femoral, or otherwise, so proven to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by radical operation." Code, § 114-412. The only claim here is for the cost of the operation and attendant expenses. The evidence was insufficient to establish when or how the alleged hernia arose, and was therefore insufficient to show that the hernia appeared suddenly, or that it immediately followed an accident, assuming that there had been an accident. For these reasons the award of the director finding for the claimant, which was directly appealed from to the superior court, was unauthorized, and the judge erred in not sustaining the appeal of the employer and the insurance carrier. *Page 375
The following represents my individual views: I am of the opinion that the evidence was sufficient to authorize the finding that whatever injury the claimant may have received, whether it were a hernia or not, was accompanied by pain in the sense of the requirement of the statute. While there are some inferences from his testimony that he did not suffer pain, it clearly appears that he was physically sensitive to some disorder in his body resulting immediately after he had lifted the barrel, which caused a discomfort. I am of the opinion that any feeling of discomfort or disorder in the region affected comes within the definition of "pain" in the sense of the statute. I am of the opinion that "pain" is used in the sense of there being some discomfort or disorder in the body of which the claimant is conscious, and which indicates to him that he has been injured.
A hernia resulting to an employee from an act done in the ordinary performance of his duties, and done in a manner not unusual or unexpected, is not an injury by accident. "Where an employee's duty is to build and construct cabinets and, with the help of another person, put them in position, and where while in thus putting one of the cabinets into position the employee does so in the ordinary manner for the performance of this duty and in a manner not unusual or unexpected in its performance, and does not exert or strain himself in a manner which is unusual or unexpected in the performance of this duty, but in the performance of his duty of sliding the cabinet into place he exerts himself only in the manner ordinarily required and expected of him, and a hernia results, the hernia does not result from an injury by accident. Had the employee, while thus engaged in sliding the cabinet into position, fallen or stumbled, or had the cabinet fallen upon him, or had he sustained any other `mishap not expected or designed' (see 19 A.L.R. 102, 103), and a hernia resulted therefrom, a different question might have been presented." Westbrook v. Highview Inc., 42 Ga. App. 834
(157 S.E. 362). In Atlantic Coast Shipping Co. v. Stasiak,158 Md. 319 (148 A. 452), it was held as follows: "Where a stevedore as claimant in proceedings for compensation because of hernia testified that he was doing ordinary work of stevedore, that nothing slipped or fell, and that he was doing what all other stevedores were doing at time he felt pain, and there was no evidence that injury was caused by any unusual strain or by any condition not an incident *Page 376
to claimant's employment, injury was not an accidental injury within meaning of Compensation Law." In Tackles v. Bryant
Detwiler Co., 200 Mich. 350 (167 N.W. 36), it was held as follows: "Where a servant sustained an inguinal hernia while lifting a block of timber weighing about 200 pounds, without slipping or falling or being struck by the timber, nothing out of the ordinary happening, it being his duty to lift such timbers and having lifted them before, the injury was not `accidental' within the meaning of the workmen's compensation act." In Kutschmar v. Briggs Mfg. Co., 197 Mich. 146 (163 N.W. 933), it was held as follows: "Under the Michigan workmen's compensation act (Pub. Acts 1912 [Ex. Sess.] No. 10), providing for compensation for accident and injury to or death of employes, no compensation can be recovered except for accidental injuries, and hence a workman who ruptured himself while lifting an iron bar in his usual manner is not entitled to compensation." In Industrial Commission v. King, 45 Ohio App. 425 (187 N.E. 253), it was held as follows: "Evidence that molder, suffering from inguinal hernia, while working in usual manner sustained strangulated hernia, held as matter of law not to show `accidental injury arising out of and caused by employment.'"
While it appears from the evidence that the claimant, together with another person, lifted a 300-pound drum or barrel of oil, and as the claimant started to lift the barrel he felt a pain in his side, and, after lifting the barrel he dropped it, it appears that the claimant only lifted the barrel and afterwards put it down on feeling pain. It does not appear that the claimant in lifting the barrel did so in a manner other than in the ordinary, usual, and expected manner in the performance of the duty of lifting the barrel, or that he exerted or strained himself in a manner unusual or unexpected in the performance of this duty. The mere straining in lifting the drum or barrel in the ordinary manner required for its lifting, if such strain causes a hernia, is not an accident in the sense of its meaning in the compensation act causing an injury resulting in hernia. If the claimant sustained the hernia as the result of the lifting of the barrel it does not appear that it resulted from an injury by accident.
In American Mutual Liability Ins. Co. v. McCarty, 45 Ga. App. 483
(165 S.E. 291), in which it was held that a hernia resulting from an injury received when moving an object with a crowbar, it *Page 377
appeared from the evidence that while using the crowbar, the claimant voluntarily twisted it, and "went with it," and that while "he was prizing on this crowbar," he "just felt something hit him in the groin." In that case the court distinguished theWestbrook case by saying: "It does not appear in this case, as it appeared in the Westbrook case, that the claimant was performing a duty in the ordinary manner and in a manner not unusual or unexpected; nor does it appear in this case, as it appeared in the Westbrook case, that the claimant did not `exert or strain himself in a manner unusual or unexpected in the performance of this duty.'"
I am of the opinion that the evidence was insufficient to authorize a finding by the director that the claimant sustained a hernia resulting from an injury caused by accident.
Judgment reversed. Sutton, J., concurs specially. Felton, J.,dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3405253/ | The petition as amended did not set forth a cause of action, and the court properly sustained the general demurrer.
DECIDED MAY 20, 1940.
C. L. Lamb brought suit against Louis Greeno and J. W. Brown, alleging that the defendants were indebted to him $185.46 by virtue of moneys had and received by them from plaintiff, said moneys consisting of $100 cash paid to Louis Greeno and $85.46 expended in repairing the property of the defendants; and that although said defendants were in equity, law, and good conscience required to pay said moneys to plaintiff, and although due and payable, they have failed and refused to pay. Judgment against both defendants was prayed. Brown was not served. Greeno filed general and special demurrers. The court sustained the special demurrers, giving the plaintiff leave to amend within ten days, but overruled the general demurrer. No exception pendente lite was filed by the defendant. Within the time allowed the plaintiff amended the petition by alleging that "the $100 in question was paid to said Louis Greeno as a binder and as part of the purchase-money for the purchase of the property for which said action is being brought, and $85.46 was expended by petitioner in repairing the property of the said defendant, while he was under the belief and of the opinion that he, said plaintiff, was to occupy and use said property, and he, said plaintiff, would get the benefit of the expenditures which he was making upon said property. Petitioner shows that J. W. Brown is the owner of the property, and that Louis Greeno purported to act as agent for the consummation of said sale; but that said Louis Greeno is indebted to your petitioner, in that said Louis Greeno represented to your petitioner that, regardless of what the terms of the sales ticket might be as to who was to obtain the loan, that if petitioner would pay to said Louis Greeno $100 that he, said Louis Greeno, would obtain the loan on the property, and there would be no danger of the plaintiff losing either the binder or expenditures which he made to repair said property, and he paid the money to said Louis *Page 616
Greeno and made said expenditures on the express representation and terms that said Louis Greeno would protect petitioner, and thereafter said Louis Greeno to his attorney and other persons admitted liability in the premises, and offered from time to time to make restitution to your petitioner, and admitted he had misled and deceived said plaintiff into paying said money, and admitted he, said Louis Greeno, had breached his part of the contract in failing to obtain the loan for him, which was part of the consideration of said sale and payment of said money." Greeno filed general and special demurrers to the petition as amended, and the exception is to the judgment sustaining the general demurrer.
The plaintiff contends that the overruling of the general demurrer to the original petition adjudicated that it set forth a cause of action for money had and received, and that the court erred in sustaining the general demurrer, filed at a subsequent term of court, to the petition as amended. As a general rule, all demurrers must be filed at the first term, but "an amendment to a petition which materially changes the cause of action, made at any stage of the case, opens the whole petition to demurrer at that time. Aliter, when the amendment makes no material change in the cause of action." Kelly v. Strouse, 116 Ga. 872
(43 S.E. 280); Code, § 81-1312. An examination of the petition as amended discloses that, whatever cause of action is attempted to be set forth, it does not, in consequence of the amendment, show that the plaintiff is entitled to recover as for money had and received; and that although the amendment contains some allegations appropriate to a cause of action for fraud and deceit or for a breach of contract, the petition as amended in fact sets forth no right to recovery. Whether the original petition set forth a cause of action for money had and received with respect to the $100 received by Greeno, it did not set forth a cause of action as to recovery of the $85.46 which was expended by the plaintiff in repairing property, inasmuch as such amount was not held by either of the defendants, but represented a sum which was voluntarily expended by the plaintiff. The $100 is shown to have been given to Greeno, as agent of Brown, as a binder under some indefinite agreement to purchase from Brown some undescribed property. Thus the cause of action has been materially changed with respect to any right to recover for money had and received. It is alleged that Greeno promised the plaintiff *Page 617
that if he would put up such a binder, Greeno would procure for the plaintiff a loan on the property to be bought, and that there would be no danger of his losing either the binder or the benefits of the expenditures on the property. If by such allegations the pleader seeks to set out a cause of action for fraud and deceit, they fail of their purpose because such an action can not be maintained where the representations are not made as to a present or past fact, but, as here, involve promises as to future acts. It is alleged in the petition that Greeno "admitted he had misled and deceived said plaintiff into paying said money, and admitted he, said Louis Greeno, had breached his part of the contract in failing to obtain the loan for him;" but this allegation amounts only to a conclusion on the part of the pleader, and is not good against the general demurrer.
Furthermore, any conclusion on the part of Greeno that he had deceived the plaintiff would not be decisive of that issue; and with no more facts shown than that he promised to obtain a loan for the plaintiff if he would give a binder to bind the trade for the undescribed property, this court could not, in the absence of any allegation that the plaintiff had made it possible for the defendant Greeno to carry out his promise by the plaintiff acquiring title so as to authorize the grant of a loan to him, agree that such a conclusion was warranted or binding on such defendant. Again, it is shown by the petition as amended that Greeno "offered from time to time to make restitution" to the plaintiff; and no reason is shown why the plaintiff did not accept such offer to return the $100, instead of bringing suit. As to the defendant Brown, it is not alleged that he had anything whatever to do with the act of Greeno in promising to effect a loan on the property if bought. So far as the petition as amended discloses, no reason is assigned why the $100 should be returned to the plaintiff, as it is not even alleged that the loan was not obtained. If it is sought to set forth a cause of action for breach of contract with respect to the sale of any property, it must be said that it is not alleged that Brown refuses to go forward with the trade, or that Greeno is obstructing its consummation; and as to the procurement of a loan it is not shown, as above mentioned, that the plaintiff has made it possible for the defendant Greeno to effect the same. In any view of the allegations of the petition as amended, no cause of action was set forth. The court properly sustained the general demurrer. *Page 618
Judgment affirmed. Stephens, P. J., concurs. Felton, J.,concurs specially. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3863435/ | Argued April 25, 1929.
The question for determination is whether an assignment "for a valuable consideration" of a chose in action as collateral security for a pre-existing debt is valid.
A.D. Roberts, alias Allen L. Rosenthal, was arrested and Tsorvas entered bail for his appearance before the United States District Court for the Western District of Pennsylvania. Roberts deposited fifteen hundred ($1,500) dollars in the hands of Tsorvas to indemnify him as bondsman.
Some time during the year 1924, Roberts paid attention to Ruth Friedman, representing himself to be an unmarried man, and induced her to lend him various sums of money which aggregated more than fifteen hundred ($1,500) dollars. She learned, subsequently, that Roberts was a married man, engaged in a fraudulent business, and had been indicted in the United States Court.
In January, 1925, Roberts executed the following assignment: "For a valuable consideration which becomes effective only after the matter at Pittsburgh in re Roberts v. U.S. Government case is finally settled and disposed, I hereby set over, transfer and assign *Page 533
all my right, title and interest in the sum of fifteen hundred dollars ($1,500), now in the hands of Demus K. Tsorvas of Pittsburgh, Pa., to Ruth Friedman of Detroit, Mich., and I hereby authorize the said Demus K. Tsorvas to pay said fifteen hundred dollars ($1,500), to said Ruth Friedman, etc."
Roberts was duly convicted, sentenced to imprisonment in the Federal Penitentiary at Atlanta, after an appeal had been taken and the judgment of conviction affirmed, so that his case was finally settled and disposed of.
Roberts also formed an acquaintanceship with one, Sophie Levin. He borrowed money from her and gave his judgment note, dated March 19, 1925, in the sum of six hundred ($600) dollars, payable in ninety days, and also a note, dated April 20, 1925, in the sum of five hundred ($500) dollars. On February 4, 1927, Sophie Levin caused to be issued a writ of foreign attachment, naming Tsorvas as garnishee, attaching the fifteen hundred ($1,500) dollar funds in his hands.
An issue was framed to determine the ownership of the fund. Ruth Friedman was named defendant and filed an affidavit of defense. A rule was taken to show cause why judgment should not be entered for want of sufficient affidavit of defense and the court, on March 8, 1928, made the rule absolute and judgment was entered for the plaintiff. On March 14, 1928, an amended affidavit of defense was presented to the court. The judgment was stricken off and the amendment allowed to be filed. It is contended that this action was irregular, but there was no exception to the order, and therefore it is not before this court.
The lower court's conclusion was that "this assignment is not an enforceable contract because it lacks consideration. For this reason the rule for judgment must now be made absolute." The assignment of the *Page 534
chose states that it was for a "valuable consideration." Whether it was for forbearance in instituting an action or some other valuable consideration, we are not informed, and it is not important. It is difficult to get stronger evidence that there was a valuable consideration than that of an expressed acknowledgment over the assignor's signature.
Judge PENROSE in Pierson's Estate, 6 District Reports, page 24, said: "In the present case the existence of a consideration is expressly admitted in the writing itself, which declares that the promise is for `value received' (Jerome v. Whitney, 7 Johns. 321; Toner v. Taggart, 5 Binney 490; Sidle v. Anderson, 9 Wright 467). This at least creates a presumption which stands until overcome by proof, and, so far as appears, there was no such proof."
Professor Williston, in his work on Contracts, states: "A statement of an existing fact is prima facie evidence of that fact." Section 115-B, Vol. 1, page 248. See also 13 Corpus Juris 367.
A legal presumption was created by the assignor's admission that there was a valuable consideration and as there was no proof to the contrary, the lower court was in error in making the rule absolute on the ground that the assignment was without consideration.
The appellee raises the question that the assignment, if valid, did not take effect until April 13, 1927, when the United States Government case had been finally disposed of, and, as the attachment was served on February 4, 1927, the lien of the appellee is prior to that of the assignment. The language of the assignor is: "I hereby set over and assign, etc." It was a present transfer of a fund that was in esse and definitely designated. The payment was not, dependent upon an acquittal or conviction of the assignor, but the money was to be paid "only after the matter *Page 535
at Pittsburgh ...... is finally settled and disposed of." The postponement of payment did not prevent an absolute transfer of all the title the assignor had in the fund on the date of the execution of the assignment. The assignor certainly could not have successfully claimed that he retained title to the fund; he parted with all the title he had, and the attaching creditor stands in no better footing than his debtor: Dix v. Cobb,4 Mass. 508; Thayer v. Daniels, 113 Mass. 129; Norton v. Insurance Co.,111 Mass. 532; Taft v. Bowker, 132 Mass. 277.
The only assignment of error is sustained and judgment reversed. Costs to be paid by appellee. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3986256/ | Only three alleged errors are assigned or argued. I shall state my views on each of them seriatim. (1) Alleged insufficiency of the evidence: As to this, a reading of the record discloses ample evidence to not only justify the court in submitting the case to the jury, but also to sustain a verdict of guilty. The only seriously disputed question is the identity of the person responsible for the death of the deceased. Defendant's conduct and statements alone are sufficient to support the finding that he was the one concerned in the collision which resulted in death. (2) The court did not err in rejecting the testimony of Zackerson as to what Maloney said to him. There was no such showing of spontaneity as to require a holding by the trial court that Maloney's statement was part of the res gestae. (3) On the question of instructions, the only error assigned and discussed is the refusal of the court to give defendant's requested instructions Nos. 3 and 4. The reason given for alleging error is that the jury were not instructed plainly enough that they all must agree on one or more of the acts alleged as constituting the crime. There was no point made regarding the sufficiency of the information and no exception taken or error assigned to any of the instructions as given. The requested instructions are far from models of clarity and accuracy, and, as pointed out by Mr. Justice LARSON in his opinion, were properly refused. True, the instruction given might have been more artistically worded, but no juror would be misled by it. Read in connection with the whole charge, the instruction sufficiently conveys the information that the jurors should unite in finding the existence *Page 378
of one or more of the acts charged before a verdict of guilty could be returned.
The record being free from error, the judgment of conviction should be affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1061699/ | 723 S.E.2d 638 (2012)
60 Va. App. 69
Roy M. CARRITHERS
v.
Kimberly A. HARRAH.
Record No. 1747-11-1.
Court of Appeals of Virginia, Chesapeake.
April 17, 2012.
Blanche M. Garber (Jeffrey M. Summers; BMGLAW LLC; The Law Office of Jeffrey M. Summers, PLLC, on briefs), for appellant.
Jeffrey F. Riddle (William C. Cowardin, Jr.; Cowardin & Kim, P.L.C., Newport News, on brief), for appellee.
Present: Felton, C.J., and PETTY and BEALES, JJ.
PETTY, Judge.
Appellant, Roy M. Carrithers, appeals an order of the circuit court ("trial court") ruling that the Juvenile and Domestic Relations *639 District Court of the City of Newport News ("JDR court") had jurisdiction to enter a money judgment against him for child support arrearages, pursuant to Code § 16.1-278.18(A). Carrithers also appeals an order of the trial court awarding appellee, Kimberly A. Harrah, attorneys' fees for the relevant proceedings in the trial court below. Harrah, on her part, has moved this Court to dismiss Carrithers' appeal for failure to timely file his notice of appeal as required by Rule 5A:6(a). For the reasons expressed below, we grant Harrah's motion to dismiss this appeal. Accordingly, we do not address the merits of Carrithers' assignments of error.
I. BACKGROUND
The parties were divorced on May 12, 1993. The divorce decree ordered Carrithers to pay Harrah child support for the child born during their marriage, as well as to provide and maintain health insurance for the child and to pay all medical and dental bills not covered by that insurance. In 2005, after the child had turned eighteen years old, Harrah filed a "Motion and Notice of Judgment for Arrearages" in the JDR court, pursuant to Code § 16.1-278.18(A). Finding that Carrithers had failed to pay any of the court-ordered child support and certain medical and dental expenses, the JDR court entered a judgment on March 9, 2006 awarding Harrah $62,096.06 plus interest.
In 2010, Carrithers moved the JDR court to reinstate the case on its docket and to vacate its judgment entered on March 9, 2006. Carrithers argued that he had not been duly served with Harrah's motion for judgment for arrearages and that the JDR court therefore lacked jurisdiction to enter its judgment against him. On December 14, 2010, the JDR court dismissed Carrithers' motion, concluding that its "jurisdiction to enforce its support orders is continuing and therefore is proper."
Carrithers appealed the JDR court's decision to the trial court, arguing that the JDR court did not have personal jurisdiction over him because he was not properly served with Harrah's motion as required by Code § 16.1-278.18(A). On March 29, 2011, the trial court entered an order ("March 29 order") ruling that the JDR court had jurisdiction to enter its judgment of March 9, 2006 and remanding to the JDR court all matters pertaining to child support. On the same day, the trial court issued a letter directing the parties to file briefs regarding their motions for attorneys' fees and costs. On August 1, 2011, the trial court entered another order awarding Harrah $5,825 in attorneys' fees for the proceedings in the trial court. Carrithers filed his notice of appeal on August 30, 2011.
II. ANALYSIS
In her motion to dismiss Carrithers' appeal, Harrah argues that Carrithers failed to timely file his notice of appeal as required by Rule 5A:6(a). Based on controlling Supreme Court precedent, we agree.
Rule 5A:6(a) provides, in part: "No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, ... counsel files with the clerk of the trial court a notice of appeal...." See Code § 8.01-675.3 (providing that generally, "a notice of appeal to the Court of Appeals in any case within the jurisdiction of the court shall be filed within 30 days from the date of any final judgment order, decree or conviction"). "In general terms, a final judgment is one which disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment." Super Fresh Food Markets of Va., Inc. v. Ruffin, 263 Va. 555, 560, 561 S.E.2d 734, 737 (2002); see also James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137 (2002). The question of whether a particular order is a final judgment is a question of law that we review de novo. See Rusty's Welding Serv., Inc. v. Gibson, 29 Va.App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc) (noting generally that "we review questions of law de novo").
In its March 29 order, the trial court ruled that the JDR court had jurisdiction to enter its judgment of March 9, 2006 and remanded to the JDR court all matters pertaining to child support. This ruling constituted a final judgment on the merits of Carrithers' appeal to the trial court from the JDR court. The *640 "ministerial superintendence of execution of the judgment" was transferred to the JDR court. See Super Fresh Food Markets, 263 Va. at 560, 561 S.E.2d at 737. The only matter unresolved by the trial court's March 29 order involved the pending requests by both parties for attorneys' fees and costs. The fact that the trial court did not rule on the parties' motions for attorneys' fees and costs in its March 29 order does not negate the fact that the March 29 order was indeed a final judgment on the merits of the case.
As the Supreme Court has recently reiterated:
"[W]hen a trial court enters an order, or decree, in which a judgment is rendered for a party, unless that order expressly provides that the court retains jurisdiction to reconsider the judgment or to address other matters still pending in the action before it, the order renders a final judgment and the twenty-one day time period prescribed by Rule 1:1 begins to run."
Johnson v. Woodard, 281 Va. 403, 409, 707 S.E.2d 325, 328 (2011) (emphasis added) (quoting Super Fresh Food Markets, 263 Va. at 561, 561 S.E.2d at 737). The trial court's March 29 order contained no language retaining jurisdiction to address the parties' pending requests for attorneys' fees and costs. Thus, the order "`render[ed] a final judgment.'" Id. (quoting Super Fresh Food Markets, 263 Va. at 561, 561 S.E.2d at 737).
The trial court's letter of March 29, 2011, which directed the parties to file briefs regarding their motions for attorneys' fees and costs, did not affect the finality of the trial court's order entered that same day disposing of the merits of the case. The Supreme Court addressed a similar situation in City of Suffolk v. Lummis Gin Co., 278 Va. 270, 683 S.E.2d 549 (2009). In City of Suffolk, the trial court entered an order nonsuiting the case and stated in its order that "[t]his suit shall remain on the docket for the Court to determine issues concerning attorney fees, costs and expenses incurred by [certain defendants]." 278 Va. at 274, 683 S.E.2d at 551 (first alteration in original). Over the ensuing months, the trial court received the parties' briefs regarding the issue of attorneys' fees and costs, heard their oral presentations, and entered another order, styled "Final Order," awarding attorneys' fees and costs to the defendants who had requested them. Id. at 274-75, 683 S.E.2d at 551. Noting that a nonsuit order is a final judgment, id. at 277, 683 S.E.2d at 552, the Supreme Court held that the trial court's language in its nonsuit order attempting to preserve the issue of attorneys' fees and costs was an ineffectual attempt to avoid the strictures of Rule 1:1, id. at 277, 683 S.E.2d at 552-53.
In other words, even if an order granting a final judgment on the merits of a case contains express language indicating that the trial court intends to rule on a request for attorneys' fees at a future time, such language does not negate the fact that such an order is in fact a final judgment. The Supreme Court has held that if a trial court wishes such an order not to be a final order, it must "includ[e] specific language [in the order rendering judgment] stating that the court is retaining jurisdiction to address matters still pending before the court." Johnson, 281 Va. at 409-10, 707 S.E.2d at 328; see id. at 410, 707 S.E.2d at 328 (holding that a nonsuit order was not a final order because it expressly stated that "this Court shall retain jurisdiction of this matter to consider any application for attorney's fees and costs" and that "for [the] purposes of Rule 1:1, this is not a final order" (alteration in original)); cf. Super Fresh Food Markets, 263 Va. at 562-63, 561 S.E.2d at 738-39 (holding that an order entered within twenty-one days of the entry of final judgment was insufficient to counteract the operation of Rule 1:1 even though the order expressly "stated that the trial court would `retain jurisdiction over this action ... [to] consider and rule on' Super Fresh's motion for reconsideration," because the order did not actually modify, vacate, or suspend the final judgment, as Rule 1:1 requires (alteration and omission in original)). A mere indication that the trial court intends to rule on pending motions is insufficient to negate the finality of an order rendering a final judgment on the merits of a case. See City of Suffolk, 278 *641 Va. at 277, 683 S.E.2d at 552-53.[1] This is particularly true where, as here, the trial court's intention regarding the pending motions is not even expressed in the order rendering the final judgment.
Thus, the trial court's letter indicating its intent to address the issue of attorneys' fees and costs at a future time does not mean that its March 29 order was anything other than a final order. Since Carrithers failed to file his notice of appeal within thirty days of the March 29 order, he is precluded from challenging anything resolved by that order in this appeal. See Rule 5A:6(a); Hall v. Hall, 9 Va.App. 426, 428-29, 388 S.E.2d 669, 670 (1990) (holding that to appeal a particular issue resolved by a trial court's ruling in a final divorce decree, a party must appeal from the decree within thirty days of its entry and is not entitled to wait until thirty days from the entry of a subsequent equitable distribution award in a bifurcated proceeding). Hence, because both of Carrithers' assignments of error are premised on alleged error in the trial court's March 29 order, his notice of appeal, filed on August 30, 2011, did not give this Court jurisdiction to review any of the arguments he now seeks to make.[2] Therefore, we are obliged to dismiss this appeal for lack of jurisdiction. Johnson v. Commonwealth, 1 Va.App. 510, 512, 339 S.E.2d 919, 920 (1986) (noting that "the failure to file a notice of appeal with the clerk of the trial court within 30 days after entry of final judgment as required in Rule 5A:6(a) is jurisdictional").
III. CONCLUSION
For the foregoing reasons, we grant Harrah's motion to dismiss this appeal.
Dismissed.
NOTES
[1] Anything in Alexander v. Flowers, 51 Va.App. 404, 658 S.E.2d 355 (2008), or Mina v. Mina, 45 Va.App. 215, 609 S.E.2d 622 (2005), that might suggest the contrary would be superseded by the Supreme Court's opinions discussed above. We express no opinion regarding the extent to which Alexander or Mina might have been implicitly overruled by the Supreme Court.
[2] It is true that Carrithers' notice of appeal was filed within thirty days of the trial court's August 1, 2011 order awarding Harrah $5,825 in attorneys' fees. Although Carrithers' second assignment of error challenges this award of attorneys' fees, the doctrine of res judicata bars our consideration of the sole argument he raises under this assignment of error. Carrithers' only argument challenging the award of attorneys' fees is that the JDR court-and derivatively the trial court-lacked personal jurisdiction over him. This issue of personal jurisdiction was an issue "finally and conclusively resolved" by the trial court's March 29 order. See Hall, 9 Va.App. at 428, 388 S.E.2d at 670. Therefore, since Carrithers did not timely appeal from the March 29 order, the doctrine of res judicata bars him from arguing the issue of personal jurisdiction in this appeal. See id. at 428-29, 388 S.E.2d at 670. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3871763/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]DECISION
Before this Court is an appeal from a final decision of the Public Utilities Commission Division of Public Utilities Carriers (hereinafter "PUC" or "Division") granting William E. West, III, (hereinafter "West") the authority to operate a towing service. The plaintiff, Rhode Island Public Towing Association, Inc., has filed this appeal seeking to overturn the PUC's final order issued on August 27, 1993. Jurisdiction is pursuant to R.I.G.L. 1956 (1988 Reenactment) § 42-35-15.
FACTS AND TRAVEL
On May 20, 1993, William E. West, III, d/b/a "Bill's Towing" filed an application with the PUC seeking a Certificate of Public Convenience and Necessity authorizing the operation of a vehicle towing service within Region II of Rhode Island, comprised of Barrington, Bristol, Jamestown, Little Compton, Middletown, Portsmouth, Newport, Tiverton, and Warren. The plaintiff filed a timely Notice of Protest on May 28, 1993. Pursuant to R.I.G.L. 1956 (1988 Reenactment) § 39-12-7, as amended, a PUC hearing officer conducted a hearing to determine whether West met the requirements proscribed by § 42-35-15 thus entitling him to a Certificate.
At the hearing, West proffered testimony in support of his application. West and four witnesses argued that there exists a need for more towers in Little Compton and that it would be convenient to the public if an additional towing service were rendered in the area. Specifically, West testified that he had six years of experience in the towing business and that he presently owned a tow truck and a car carrier with a wheel lift apparatus (Hearing Transcript at 6). Terry Quick, a lifelong resident of Little Compton and a member of the Little Compton Police Department from 1969 to 1978, also testified on behalf of West. Based on his personal and professional experiences, Quick concluded that not enough towing operators exist to service the rapidly growing population in that area. (Id. at 27). Similarly, former Little Compton Police Lieutenant, Bertrand A. Chretien, testified that the delay with which towers currently respond to the frequent number of accidents on the curvy roads of Little Compton and South Tiverton reflects the need for an additional tow operation. (Id. at 37, 38). Finally, Joseph Medeiros, Jr. and Douglas Waite, both in the auto repairs and parts businesses, respectively, expressed the need for more carriers to be available to tow wrecked vehicles to and from their businesses. (Id. at 45, 53).
In opposition to West's application, the plaintiff offered Notices of Protest from five protestants who contend that an adequate supply of towers is available to the Little Compton area, and thus, there is no need for an additional "certificated" tower. (Id. at 60). Mr. Quick testified that he "[had] to wait two hours as recently as two weeks ago for a truck . . . [and] finally took other means" of transporting his car. (Id. at 27). Mr. Chretien testified that it would be to the "police department's advantage to have another licensed truck available . . . especially if we got [sic] multiple car accidents." (Id. at 38).
On August 27, 1993, the PUC issued a Report and Order granting West a permit to operate a towing business in Region II of Rhode Island. (Report and Order at 3). It is from this final order that the plaintiff has made a timely appeal to this Court.
STANDARD OF REVIEW
This Court is granted jurisdiction to review final orders of the PUC pursuant to § 42-35-15 of the Administrative Procedures Act, G.L. 1956 (1988 Reenactment). Specifically, this Court's scope of review of such decisions is governed by § 42-35-15(g), which provides:
42-35-15. Judicial review of contested cases.
(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Accordingly, when reviewing an agency decision, the court must not substitute its judgment for that of the agency with respect to the credibility of witnesses or the weight of the evidence.Costa v Registry of Motor Vehicles, 543 A.2d 1307, 1309 (R.I. 1988). A reviewing court will give great deference to an agency's final decision. Blackstone Valley Electric Co. Public UtilitiesCommission, 543 A.2d 253 (R.I.), Cert. denied, 488 U.S. 995
(1980). Moreover, the court must affirm if there is substantial evidence in the record to support the decision and no other violation under § 42-35-15 is shown. R.I.G.L. § 42-35-15.
Conversely, if the agency's decision is clearly erroneous in view of the reliable, probative and substantial evidence contained in the whole record, the reviewing court may overturn it. Milardo v. Coastal Resources Management Council,434 A.2d 266, 270 (R.I. 1981). Only if the agency's factual conclusions are "completely bereft of competent evidentiary support in the record" will the court reverse. Sartor v. Coastal ResourcesManagement Council, 542 A.2d 1077, (R.I. 1988). If there is an interpretation or application of law at issue, however, the reviewing court is free to make its own determinations. Carmodyv. R.I. Conflict of Interest Commission, 509 A.2d 453, 458 (R.I. 1986); Turner v. Dept. of Employment Sec. B. of Rev.,479 A.2d 740, 742 (R.I. 1984). Thus, absent any judicial review of questions of law, the court's review is confined to the hearing record. R.I.G.L. § 42-35-15(f).
THE AGENCY'S DECISION
Pursuant to its powers enunciated in § 42-35-1(c), the PUC issued a Certificate of Public Convenience and Necessity authorizing defendant-West to operate a towing service in Region II of Rhode Island. In its decision, the PUC found that the public need and convenience would best be served by permitting an additional tower to operate in the area.
The PUC's final determination of an applicant's petition is governed by R.I.G.L. § 39-12-7. After reviewing the hearing officer's recommendatory order and findings of fact, the Division administrator may approve the Order if two criteria have been met. The administrator must find that (1) ". . . that the applicant is fit, willing and able properly to perform the service proposed. . .", and (2) ". . . that the proposed service . . . is or will be required by the present or future public convenience and necessity. . .". Id. Thus, the administrator must be satisfied that the applicant has put forth sufficient evidence to meet the foregoing test. At issue here is whether there is substantial evidence in the record which supports the Division's order.
FITNESS
The first question this Court must address is whether the PUC had before it sufficient evidence upon which it could predicate the defendant's fitness to operate a towing service. The Division found that the defendant met the requirements as proscribed by §39-12-7, and after reviewing the record, this Court agrees. The hearing officer heard testimony from Mr. West that he had six years of experience in the towing business, was adequately equipped to perform, and was informed as to the proper insurance coverage required by law. (Report and Order at 2). The hearing officer also heard testimony in favor of West's character from Lt. Chretien who testified that ". . . he knows West personally and regarded him as a responsible individual." (Id. at 3).
The hearing officer found this testimony regarding West's fitness to be convincing and credible. Based upon West's application and the evidence before it, the Division found that ". . . the statutory requirements have been met." (Id. at 4). In view of the foregoing testimony and the record on the whole, this Court is satisfied that the Division officer was presented with substantial evidence such that it could find the defendant fit, willing and able to perform the proposed service, as proscribed by § 39-12-7.
PUBLIC NECESSITY
The plaintiff contends that defendant-West failed to establish the public necessity element set forth in § 39-12-7. In support of its argument, the plaintiff cites Capaldo v. PublicUtilities Hearing Board, wherein the court found "what is conducive to the general public need, convenience, interest, safety, protection and welfare is always the true test " of what constitutes `public convenience and necessity.' (See Plaintiff's Brief at 8, citing Capaldo v. Public UtilitiesHearing Board, 70 R.I. 356, 360, 38 A.2d 649 (1944).) It was also held, however, in the pivotal case of Abbott v. PublicUtilities Commission that "[p]ublic service . . . is the test in granting a certificate of public convenience and necessity."Abbott v. Public Utilities Commission, 48 R.I. 196, 136 A. 490
(1927).
Although the foregoing factors must be considered when defining public necessity, this Court would be remiss in adhering to any one steadfast test of public necessity. Instead, it is critical that the definition of "public necessity" remain malleable and responsive to the needs of the particular community in question. As our Supreme Court has reiterated throughoutAbbott's progeny, ". . . `public convenience and necessity' has no well-defined meaning." Domestic Safe Deposit Co. v.Hawksley, 111 R.I. 224, 227, 301 A.2d 342, 344 (1973). This Court is also mindful that "the definition of need is a relative one." Id. at 227, 301 A.2d at 344. . Given the flexible nature of the meaning of `public necessity' and the ample testimony on record, this Court finds that the Division had before it substantial evidence to conclude that an additional towing operator is both convenient and necessary to the Little Compton community.
The plaintiff urges that the public of Little Compton is adequately served by the present number of towers in the area. (See Tr. at 32). In particular, the plaintiff contends that West's witnesses misperceive a need for more towing services because they are "unaware of the eleven towers . . . capable of towing in that area." (Id. at 68). As further evidence of the lack of need of an additional tower, the plaintiff notes that a company in the Little Compton area went out of business and there is ". . . a number of operators in the area who can handle [bus tows] . . .". (Id. at 69).
West, however, proffered testimony at the hearing that showed the present number of towers in the Little Compton area is not sufficient to serve the public need. Mr. Quick, Mr. Medeiros, and Mr. Chretien all cited specific instances when they or someone they knew were unable to obtain a towing service when it was needed. Significantly, Mr. Quick testified that he "had to wait two hours as recently as two weeks ago for a truck . . ." and finally resorted to "other means" to transport his car, and on another occasion, the operator arrived the next morning to tow his car. (Id. at 31, 69). Mr. Medeiros, who repairs exclusively Little Compton school buses, also testified that he had difficulty obtaining a tow truck when buses broke down in and around Little Compton. (Id. at 45-6). Finally, Mr. Chretien testified that it would be ". . . to the police department's advantage to have another license truck available . . . especially if we got [sic] multiple car accidents." (Id.
It is clear from the Division's Report and Order that it found these latter contentions to be more persuasive. The hearing officer specifically found that the defendant's proffered testimony ". . . establishes that there is a perceived need for an additional tower in Little Compton and South Tiverton." (Report and Order at 4). The law is well-settled that "[t]he weight to be given to any evidence rests with the sound discretion of the hearing officer." The Environmental ScientificCorporation v. Durfee, 621 A.2d 200, 206 (1993). It is also well-settled that in granting a certificate of public convenience and necessity, "the court may consider such factors as competitive stimulation and anti-monopoly prophylaxis." DomesticSafe Deposit Co., 111 R.I. at 228, citing Short Line, Inc. v.United States, 290 F. Supp. 939 (D.R.I. 1968). The plaintiff urges that the defendant's towing company is not necessary to the public because a sufficient number of services exists. The record is replete, however, with evidence to the contrary. The evidence presented to the hearing officer led the Division to find unequivocally that ". . . the applicant clearly demonstrated a local need." (Report and Order at 5). It is evident from the testimony of record and from the PUC's findings that the public is best served by a flourishing spirit of competition.
The Division responded to the community's "perceived need" by granting West's towing license. Furthermore, in finding that public necessity existed "despite a limited showing of need" (Report and Order at 5), the PUC's decision reaffirms the basic premise that ". . . protecting existing investments . . . from even wasteful competition must be treated as secondary to the first and most fundamental obligation of securing adequate service for the public. . .". Yellow Cab Co. v. Public UtilitiesHearing Board, 73 R.I. 217, 54 A.2d 28 (1947). In keeping with this premise, the PUC's decision places the community's needs above monopolistic protection of existing towing operations.
CONCLUSION
This Court's determination of the case at bar hinges upon whether, as is required by § 42-35-15, there is substantial evidence in the record which supports the Division's order. Our Supreme Court has defined "substantial evidence" as "more than a scintilla but less than a preponderance." Apostolou v.Genovesi, 120 R.I. 501, 508, 388 A.2d 821, 824-5 (1978). After careful examination of the entire record, this Court finds that the PUC's decision was clearly supported by "probative, reliable and substantial evidence. . ." as is statutorily required. Accordingly, the August 27, 1993 decision of the Public Utilities Commission is hereby affirmed.
Counsel shall prepare the appropriate order for entry. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1066966/ | IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Brief March 31, 2003
RODNEY JOHNSON v. JAMES GULLEY
Direct Appeal from the Circuit Court for Shelby County
No. CT-007605-01 Robert A. Lanier, Judge
No. W2002-02357-COA-R3-CV - Filed July 28, 2003
The trial court dismissed this case based on the one-year limitations period applicable to attorney
malpractice actions. We regard the trial court’s order as an award of summary judgment and affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY, J., joined.
Rodney Johnson, Pro Se.
Bradley J. Cordts, Memphis, Tennessee, for the appellee, James M. Gulley.
MEMORANDUM OPINION1
The facts pertinent to this appeal are undisputed. On April 29, 1999, James M. Gulley (Mr.
Gulley) represented Rodney V. Johnson (Mr. Johnson) in General Sessions Criminal Court of Shelby
County, where Mr. Johnson pled guilty to assault. On July 30, 2001, Mr. Johnson filed a civil
warrant in the Court of General Sessions for Shelby County against Mr. Gulley alleging
“misrepresentation” by Mr. Gulley with respect to the 1999 plea in criminal court. The general
sessions court awarded judgment to Mr. Gulley based on the one-year statute of limitations for
attorney malpractice actions. Mr. Johnson appealed to circuit court, which dismissed the cause based
upon the statute of limitations. Mr. Johnson now appeals to this Court.
1
Rule 10 of the Rules of the C ourt of App eals of T ennessee: T his Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorand um opinion when a
formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any reason in any unrelated
case.
Issue Presented
The dispositive issue on appeal, as we perceive it, is whether Mr. Johnson’s cause of action
is barred by the one-year statute of limitations applicable to allegations of attorney malpractice.
Standard of Review
Although the order of the trial court is one sustaining Mr. Gulley’s September 11, 2002,
motion to dismiss, we note that the court’s September 23, 2002, order followed an additional motion
by Mr. Gulley on September 13, 2002, for summary judgment. After reviewing the record, it is clear
to this Court that the trial court could not have determined the date of the plea in criminal court
without looking beyond the pleadings. Therefore, we regard the trial court’s order as one awarding
summary judgment to Mr. Johnson, and review it accordingly. See Adams TV of Memphis v.
ComCorp of Tenn., 969 S.W.2d 917, 920 (Tenn.Ct.App.1997)(motion to dismiss converted to
motion for summary judgment when trial judge considered matters outside the pleadings).
A motion for summary judgment is appropriately granted only upon a showing that there are
no genuine issues of material fact and that the party moving for summary judgment is entitled to
judgment as a matter of law. Tenn. R. Civ. 56.04. The party moving for summary judgment bears
the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d
618, 622 (Tenn.1997). Since only questions of law are involved, there is no presumption of
correctness regarding a trial court's grant or denial of summary judgment. Id. Our review of an
award of summary judgment is therefore de novo upon the record. Warren v. Estate of Kirk, 954
S.W.2d 722, 723 (Tenn.1997).
Running of the Limitations Period
Tennessee Code Annotated § 28-3-104(a)(2) provides a one-year limitations period for causes
of action alleging attorney malpractice. Although Mr. Johnson’s plea in the criminal court is not
dated, and Mr. Gulley fails to state the date in his affidavit, the parties do not dispute that the plea
was signed by Mr. Johnson and entered on April 29, 1999. Further, that the plea was signed by Mr.
Johnson on April 29, 1999, is supported by Mr. Johnson’s motion to consolidate of June 12, 2002,
his motion to continue trial of September 13, 2002, and by the November 19, 2001, affidavit of
Joseph Bailey in support of Mr. Johnson which was filed in the general sessions court on December
7, 2001. Therefore, it is clear to this Court that any “misrepresentation” by Mr. Gulley with respect
to the guilty plea in criminal court occurred on or before April 29, 1999.
Mr. Johnson argues that the limitations period in this case should be tolled because Mr.
Gulley fraudulently concealed facts pertaining to the April 29, 1999, plea. We find this argument
to be without merit. Assuming, arguendo, that Mr. Johnson’s statement in his
September 13, 2002, motion to continue trial and Mr. Bailey’s affidavit in support of Mr. Johnson
are true, Mr. Johnson was dissatisfied with the April 29, 1999, plea at the time it was made, despite
having voluntarily signed it. Mr. Johnson alleges he directed Mr. Gulley to withdraw the plea on the
-2-
day it was made. In his brief to this Court, Mr. Johnson states that he again directed Mr. Gulley to
withdraw the guilty plea on April 30, May 3 and May 4, 1999. Assuming that allegation to be true,
Mr. Johnson was aware of any alleged “misrepresentation” on April 29, 1999. We find no evidence
of concealment.
In light of the foregoing, we affirm summary judgment for Mr. Gulley. This cause of action
is barred by the one-year limitations period prescribed by Tenn. Code Ann. § 28-3-104(a)(2). Costs
of this appeal are taxed to the appellant, Rodney V. Johnson, for which execution may issue if
necessary.
___________________________________
DAVID R. FARMER, JUDGE
-3- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3405436/ | 1. A warden of a public-works camp will not be held liable for the torts of convicts on the mere averment that he was negligent "in permitting said convicts to roam the roads of this county and State at large [in a truck], without any guard," whereby injuries resulted from a collision of the truck with the plaintiff's car. Under the statute with reference to the regulation and control of convicts (Code, §§ 77-307, 77-311, 77-313) it was discretionary with the warden to determine how and in what manner convicts employed outside the confines of the camp doing work in connection with the operation of the camp should be suffered to go at large. And wardens, as here, acting in a discretionary capacity, will not be liable unless guilty of wilfulness, fraud, malice, or corruption; or unless they knowingly act wrongfully, and not according to their honest convictions of duty.
2. Under the ruling just stated, the action seeking damages against the warden for injuries caused by the negligent acts of convicts, was properly dismissed on general demurrer.
DECIDED MARCH 20, 1942.
The action for damages for personal injuries was brought against the board of commissioners of roads and revenue of Henry County and E. Q. Owen, individually and as warden of Henry County. The judge dismissed the action on general demurrer and the plaintiff excepted. This appeal, as stated in plaintiff's brief, is concerned only with the liability of Owen, individually and as warden of Henry County. The petition alleged that the plaintiff sustained injuries under the following circumstances: On August 29, 1938, the plaintiff was in her automobile returning to her home. At a point within a few hundred yards from her home she was confronted by a truck coming in the opposite direction, which belonged to the board of commissioners of Henry County and was loaded with pine logs, and which was being driven by a white man, a convict, who was accompanied by another convict, a negro. "Immediately upon observing the truck approaching her, your petitioner, upon ascertaining that it was travelling at a rapid rate of speed and while at the time she was operating her car carefully and at a slow rate of speed, turned her car out of the road to the extreme right-hand side of the road, and then suddenly, to her utter astonishment, and when she saw that the truck was keeping on her side of the road and was proceeding directly toward her, and while she was on the right-hand side of the road, and at a time when your petitioner had almost stopped her car, the said convicts, while driving said loaded truck, lunged forward and struck your petitioner's car in front, completely demolishing the car and injuring your petitioner to the extent that she was unconscious, and to the extent that your petitioner was with much force hurled about between the wreckage of said car." At the time of the wreck the convicts were under the influence of intoxicants, were incapable of operating said truck, and deliberately drove the truck into the plaintiff's car, even though there was sufficient room to pass on their side of the road. It was further alleged that on the occasion in question the defendant was responsible for the personal conduct, acts, and doings of the convicts, and had released them from the camp and permitted them to use the truck to haul logs from certain farms to the public-works camp in McDonough, without a guard or an official, and the truck "was being operated with defective brakes, and so defective and worn, that said truck was being operated practically without the use of any brakes. That by permitting *Page 60
said convicts to so act, as described in the preceding paragraph of this petition, they were thereby permitted without any restriction whatsoever to obtain access to intoxicating liquor. That said convicts did obtain intoxicating liquor, which they could not have done had it not been for the said defendant Owen's permitting them, two convicted convicts, to operate dangerous machinery on the public highways of this State and without any custody and control over their acts or without placing any guards over them." The plaintiff alleged that she was free from fault and that the negligence of Owen in permitting said convicts to roam the roads of this county and State at large without any guard was the proximate cause of the injury. The question before this court is whether the petition set forth a cause of action against the warden.
After a diligent study of the petition we reach the conclusion that the only act of negligence on the part of the warden disclosed in the petition was "in permitting said convicts to roam the roads of this county and State at large, without any guard."
The power and duty to exercise judgment and discretion is not conferred alone on public officers who sit as judges. There are a large number of such officers whose duties lie wholly outside the domain of courts of justice. To distinguish them from judicial powers, such powers are termed quasi-judicial or discretionary, as they are said to lie midway between judicial and ministerial ones. The name of the officer or officers is immaterial, and the question depends on the character of the act. If the act done for which recovery is sought is judicial or quasi-judicial in its nature, the officer acting is exempt from liability. Mechem on Public Officers, 420, §§ 636, 638. For reasons of private interest and public policy a quasi-judicial officer can not be called on to respond in damages to a private individual for the honest exercise of his judgment within his jurisdiction, however erroneous or misguided his judgment may be, "for their authority is fixed by laws which those who deal with them are as much bound to know as are the officers themselves. Otherwise, not only would it be difficult to get responsible men to fill public office, but there would be constant temptation to yield officially to unlawful demands, lest private liability be asserted and enforced. But, although officers, they may not be rascals, and liability may arise for tortious conduct. In matters of ministerial duty they may even be liable for nonfeasance as well as misfeasance, *Page 61
for mistakes and neglects (11 Cyc. 410; Amy v. Supervisors, 11 Wall. 136, 20 L. ed. 101); but in matters of judgment and discretion they are liable only if they act wilfully, corruptly, or maliciously (11 Cyc. 411)." Commercial Trust Co. v. Burch, 267 Fed. 907, 909; Tucker v. Shorter, 17 Ga. 620; Ghent
v. Adams, 2 Ga. 214, 216. This exemption from personal liability extends to wardens in their act in permitting convicts to go at large. Mechem on Public Officers, 424, § 639.
In this State, "All convicts, whether sentenced for felony or misdemeanor crimes, and all convict camps [now public-works camps] shall be under the direct supervision of the Prison Commission, which shall provide rules and regulations for the management, discipline, and control of said convicts, and of said convict camps, subject to the approval of the Governor. The Commission shall have complete management and control of the State convicts; shall regulate the hours of their labor, the manner and extent of their punishment, the variety and quantity of their food, the kind and character of their clothing; and shall make such other rules and regulations as will assure their safekeeping and proper care." Code, § 77-313. In addition, the statute provides: "The Commission shall appoint such wardens and guards as may be necessary, and shall define their duties." Code, § 77-307. And further provides: "All wardens . . shall be required to take an oath to perform their duties under the law and the rules of the Commission, before entering upon the discharge thereof." Code, § 77-311.
Thus, the warden of a public-works camp, under authority from the Prison Commission has the charge and custody of the camp, its buildings, tools, trucks, implements, and all other property pertaining thereto and it is his duty to superintend the internal police and discipline of the camp as required by the general rules, regulations, etc., prescribed by the Commission. It seems to us that the statute invests the Prison Commission, and through it, the warden, with a discretion as to the superintendence and control of the public-works camps and the convicts confined therein. The Commission is authorized to make such rules and regulations as they may deem expedient and proper for the good government thereof, and thus there is at least an implied authority given the warden, during daylight, to employ convicts outside the bounds of the camps in cutting and hauling wood (in the truck) from certain farms near *Page 62
the camp to the camp. How or in what manner convicts employed outside the confines of the camp shall be permitted to go at large is nowhere specified by the law, but is left to the wise discretion and control of the Commission, and through it, the warden.
The language and reasoning in Schoettgen v. Wilson,48 Mo. 253, 257, is so peculiarly applicable to the instant case that we quote in full the following: "Officers acting within the scope of their jurisdiction and in pursuance of discretionary powers devolved upon them, will not ordinarily be held responsible for an error of judgment. Discretion implies to a certain extent judicial functions; and where an officer acts in such a capacity, to render him personally liable it must be shown that his decisions were not merely erroneous, but that he acted from a spirit of wilfulness, corruption and malice; in other words, that his action was knowingly wrongful, and not according to his honest convictions in respect to duty. (Reed v. Conway,20 Mo. 22; Pike v. Megoun, 44 Mo. 491; Caulfield v. Bullock, 18 B. Mon. 494). In the well-known case of Wilkes v. Dinsman, 7 How. 89 [12 L. ed. 618], the Supreme Court of the United States held that an officer invested with certain discretionary powers could not be made answerable for any injury when acting within the scope of his authority and not influenced by malice, corruption or cruelty — that his position was at least quasi official; and it has often been decided, and appears to be well settled, that the acts of a public officer, on public matters within his jurisdiction, and where he has a discretion, are to be presumed legal until shown by others to be unjustifiable. Gidley v.
Palmerston, 7 Moore, 111; Vanderheyden v. Young, 11 Johns. 150; Martin v. Mott, 12 Wheat, 31) [6 L. ed. 537]. This is not on the principle merely that innocence and rightdoing are to be presumed until the contrary is shown, but that the officer, being intrusted with a discretion for public purposes, is not to be punished for the exercise of it, unless it is first proved against him either that he exercised the power confided in cases without jurisdiction, or in a manner not confided to him, as with malice, cruelty or wilful oppression, or, in the words of Lord Mansfield, that he exercised it as if the heart were wrong. (Wallv. McNamara, 2 Carr. P. 158, and note.) In Jenkins v.
Waldron, 11 Johns. 121 [6 Am. D. 359], Spencer, J., speaking for the whole court says: `It would, in our opinion, be opposed to all the principles of law, justice and sound policy, to *Page 63
hold that officers called upon to exercise their deliberate judgments are answerable for a mistake in law, either civilly or criminally, when their motives are pure and untainted with fraud and malice.'" Our Supreme Court, in Henderson v. Dade CoalCo., 100 Ga. 568 (28 S.E. 251, 40 L.R.A. 95), has said: "As a general rule, persons in charge of a State convict, whether their custody and control of him be lawful or otherwise, are not liable in damages for a criminal tort committed by him while at large, although his being at large was by their permission, or because of their negligence in failing to keep him safely confined. Ordinarily, under such circumstances, the convict's wrongful act would be too remote a consequence of his keepers' misconduct in the promises to render them responsible to the person injured. This rule would, of course, be varied if they were in any way connected with the perpetration of the tort, or had reasonable grounds for apprehending that it would be committed."
The allegation of negligence here is that the defendant warden was negligent "in permitting said convicts to roam the roads of this county and State at large, without any guard." We have seen that under the statute with reference to the regulation and control of convicts it is not unlawful, in the exercise of his discretion, for the warden to employ convicts outside of the public-works camps, for the statute at least grants implied authority for the warden so to do. The warden was the only person who could control them when they were laboring outside. If the warden, acting in good faith, merely erred in judgment, in not adopting rules sufficiently stringent for the government and control of the convicts (as for instance sending a guard along when they were employed outside the camp during daylight hours), he would not on that account be held answerable. To hold him liable it would be necessary to allege and prove that he had been guilty either of wilfulness, fraud, malice, or corruption; or that he had knowingly acted wrongfully, and not in accordance with his honest convictions of duty. There is nothing in the petition to show that the defendant warden acted without the sphere of his jurisdiction, or that he acted wilfully, fraudulently, or maliciously in disregard of the rights of others. Were such the case, there would be no doubt as to his liability, but under the facts alleged we think the petition was defective and was properly dismissed on demurrer.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur. *Page 64 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1976391/ | 375 N.W.2d 59 (1985)
STATE of Minnesota, Respondent
v.
Roger Gordon CLARK, Appellant.
No. C3-85-318.
Court of Appeals of Minnesota.
October 8, 1985.
*60 Warren Kochis, Ann M. Gustafson, Asst. County Atty., Willmar, for respondent.
John Mack, New London, for appellant.
Heard, considered and decided by WOZNIAK, P.J., and PARKER and LESLIE, JJ.
OPINION
PARKER, Judge.
Roger Gordon Clark appeals from a conviction for aggravated DWI, Minn.Stat. § 169.121, subd. 1(a) and 3(a) (1984); aggravated violations, Minn.Stat. § 169.129 (1984); and unlawful acts, Minn.Stat. § 171.22(5) (1984). Appellant claims the *61 trial court erred by allowing evidence of a prior DWI conviction to be submitted to the jury when he had offered to stipulate unequivocally to the conviction with regard both to the aggravated DWI charge and the aggravated violations charge. He also contends the trial court's refusal to allow one of appellant's witnesses to testify as a sanction for non-disclosure of the witness was unconstitutional. Finally, appellant argues the trial court erred in applying bail to the satisfaction of his fine since his attorney had filed a lien on the bail. We reverse on the submission to the jury of the prior DWI conviction, and therefore do not reach appellant's constitutional claim.
FACTS
Shortly after midnight on August 8, 1984, Deputy Ronald Konieska of the Kandiyohi County Sheriff's Department stopped a pickup truck driven by appellant after observing it traveling very slowly and weaving in and out of its proper traffic lane. Deputy Konieska testified appellant identified himself as Ricky Glenn Clark and said he did not have his driver's license with him.
Deputy Konieska suspected appellant was under the influence of alcohol and decided to take him into custody in order to test him pursuant to Minn.Stat. § 169.123 (1984). At that moment, the New London, Minnesota, Chief of Police arrived on the scene. He recognized appellant and informed Deputy Konieska of his true identity. Appellant was transported to Willmar where, after consulting with an attorney, he refused to take a breathalyzer test. A driver's license check under appellant's real name revealed his license had been revoked because of a 1984 DWI conviction.
Appellant was charged with violating the above enumerated statutes. Prior to trial, the parties agreed to stipulate with regard to the aggravated DWI charge that appellant had a prior DWI violation. This would allow the court to find appellant guilty of a gross misdemeanor and sentence him under § 169.121, subd. 3(a), if the jury convicted him of simple DWI. The trial court accepted that stipulation.
The appellant also offered to stipulate that his driver's license was revoked prior to August 8, 1984, and that it was revoked as a result of the prior DWI conviction for purposes of Minn.Stat. § 169.129. The State objected, arguing it would be prejudiced by the stipulation because it would remove from the jury's consideration two of the three elements of the offense. The court allowed evidence of appellant's prior DWI conviction and resulting driver's license revocation to be presented to the jury in connection with the aggravated violations charge (§ 169.129).
The jury found appellant guilty of all three offenses. The court applied appellant's bail to the fine imposed pursuant to Minn.Stat. § 629.53. Appellant's counsel objected, arguing that his previously filed attorney's lien gave him a priority interest in the bail.
ISSUES
1. Whether the trial court erred in not allowing appellant to stipulate to his prior DWI conviction and revoked license status, thereby removing those elements of Minn. Stat. § 169.129 from the jury's consideration.
2. Whether the trial court erred by applying appellant's bail to the satisfaction of his fine when appellant's attorney had previously filed a Notice of Attorney's lien on the bail.
DISCUSSION
I
The appellate courts of the State of Minnesota have addressed the issue of stipulations to prior DWI convictions four times in the past year. See State v. Berkelman, 355 N.W.2d 394 (Minn.1984); State v. Braun, 354 N.W.2d 886 (Minn.Ct.App. 1984); State v. Clark, 361 N.W.2d 104 (Minn.Ct.App.1985); State v. Eliason, 361 N.W.2d 103 (Minn.Ct.App.1985). In each of these cases, it was held that the trial court must accept an unequivocal judicial admission *62 of a prior DWI and let the defendant remove from the jury the issue of whether he had prior DWI convictions.
The above cases dealt with violations of Minn.Stat. § 169.121, subd. 3(a), (aggravated DWI) and not the aggravated violations statute, Minn.Stat. § 169.129 in issue here.[1] However, the supreme court's analysis in Berkelman focused primarily on the law of evidence, not statutory construction of § 169.121, subd. 3(a). It was the severely prejudicial effect of evidence of prior DWI convictions which prompted the rule in Berkelman. As the court noted:
If a defendant is willing to concede that he has a prior DWI conviction, we fail to see why the evidence, with its great potential for being improperly used, should be admitted, unless, of course, the evidence is admissible under Rule 404(b) as evidence relevant to some disputed issue.
Berkelman, 355 N.W.2d at 397 n. 2.
The trial court apparently accepted the stipulation of the prior DWI for purposes of the aggravated DWI charge, but refused the stipulation for purposes of the aggravated violations statute. We also note that there is little point in accepting the stipulation to the prior DWI for purposes of the aggravated DWI charge, only to allow evidence of the prior DWI to be admitted for purposes of the aggravated violations charge. We think the court in Berkelman was instructing that where any criminal statute requires proof of a prior DWI conviction in order to prove the offense, the trial court must accept an unequivocal judicial admission of a prior DWI by the defendant. Since proving a violation of § 169.129 in this case necessitated proving a prior DWI conviction, it was error for the trial court to refuse to allow defendant to stipulate to the existence of his prior DWI conviction.
The trial court also refused to allow the defendant to stipulate that his license was revoked, which is another element of § 169.129. The general rule is that a criminal defendant's judicial admission or offer to stipulate does not necessarily take away the state's right to offer evidence on a point. State v. Davidson, 351 N.W.2d 8 (Minn.1984); Berkelman, 355 N.W.2d at 397. Berkelman and Davidson therefore represent limited exceptions to this general rule.
We believe, however, that an offer to stipulate to a prior license revocation in a prosecution under § 169.129 falls within the Berkelman exception. If the jury is informed that a defendant charged with driving under the influence had a revoked license at the time, we think there is serious risk that the jury will infer the defendant has a prior DWI and utilize that inference in determining the guilt of the defendant. The potential of such evidence for unfair prejudice is identical to the prejudice induced by evidence of a prior DWI conviction. We hold, therefore, that the trial court must allow the defendant to stipulate to the prior revocation of his driver's license unless the prejudicial effect of this evidence is outweighed by its probative value to some disputed issue.[2]
Nor can this error be considered harmless. Error in the reception of evidence will only be disregarded "if there is no reasonable possibility that the evidence complained of might have contributed to the conviction," or when the defendant's guilt was "conclusively proven." State v. *63 Fratzke, 354 N.W.2d 402, 409 (Minn.1984) (quoting State v. Paige, 256 N.W.2d 298, 302 (Minn.1977); State v. Hutchison, 121 Minn. 405, 409, 141 N.W. 483, 484 (1913)). Here, Clark did not take a breath test. The evidence of intoxication was entirely observation testimony by police officers. We cannot conclude from the record that appellant's guilt was so "conclusively proven" that we may disregard the erroneous reception of the prior DWI conviction and license revocation. Given the highly prejudicial nature of this evidence, we conclude that there is reasonable doubt that the erroneously admitted evidence contributed to the verdict. See State v. Johnson, 294 N.W.2d 848 (Minn.1980). Therefore, a new trial must be granted on the charges of aggravated DWI, § 169.121, subd. 1(a) and 3(a), and aggravated violations, § 169.129.
While appellant challenged his conviction for unlawful acts under § 171.22(5), he presents no argument on appeal as to why that conviction should be overturned. That judgment is therefore affirmed.
II
Appellant next claims that the trial court erred in applying appellant's bail to the payment of his fine where appellant's attorney had previously filed a notice of attorney's lien on the bail. It should be initially noted that appellant has questionable standing to raise this claim, which seems to be an assertion of his attorney's contractual rights. The attorney, of course, is not a party to this action. We see little evidence of an injury in fact to the appellant as a result of his bail going to pay his fine instead of his attorney; in either event, appellant has parted with the money. See Snyder's Drug Stores, Inc. v. Minnesota State Board of Pharmacy, 301 Minn. 28, 32-33, 221 N.W.2d 162, 165-66 (1974) ("injury in fact" concept adopted as test for standing). The purpose of the doctrine of standing, however, is to "guarantee that there is a sufficient case or controversy between the parties so that the issue is properly and competently presented to the court." Twin Ports Convalescent, Inc. v. Minnesota State Board of Health, 257 N.W.2d 343, 346 (Minn.1977) (quoting Minnesota State Board of Health v. City of Brainerd, 308 Minn. 24, 30, 241 N.W.2d 624, 628 (1976)). While we have some misgivings that no memoranda were supplied by the parties to the trial court on this issue, we are satisfied that the parties have competently presented the issue to this court and we will address the merits.
We have serious doubts that Minn. Stat. § 481.13 (1984) extends beyond civil actions, but we will nevertheless undertake a construction of the statute to determine if the lien can attach to cash bail. The statute grants an attorney's charging lien on "the cause of action and on the client's interest in any money or property involved in or affected by any action or proceeding in which he may have been employed, and on the judgment." Boline v. Doty, 345 N.W.2d 285, 289 (Minn.Ct.App.1984).
We think it plain that cash bail is not a "judgment" within the meaning of the statute. The lien on a "cause of action" only attaches to the client's cause of action. Lafleur v. Schiff, 239 Minn. 206, 58 N.W.2d 320 (1953). Since only plaintiffs or defendants with counterclaims possess causes of action, appellant, as a criminal defendant, possesses no cause of action to which the lien could attach.
Therefore, in order for the lien to attach, the attorney must have been employed in an action or proceeding which involved or affected the client's interest in any money or property. In order for the lien to attach under this provision of the statute, the client's interest in money or property must have been an issue in the action or proceeding. See Crolley v. O'Hare International Bank, 346 N.W.2d 156 (Minn.1984); Schroeder, Siegfried, etc. v. Modern Electronic, 295 N.W.2d 514 (Minn.1980).
In this case, the appellant's interest in the cash bail is not an issue in the proceeding; whether or not appellant violated certain criminal statutes is the sole issue in the proceeding. We conclude, *64 therefore, that the statute does not grant a charging lien on appellant's bail held by the court.
DECISION
Appellant must be allowed to stipulate both to his prior DWI conviction and the revocation of his driver's license in a prosecution under Minn.Stat. § 169.129. Appellant's attorney may not assert a lien pursuant to Minn.Stat. § 481.13 on appellant's bail in the possession of the court.
Affirmed in part, reversed in part, and a new trial granted on the aggravated DWI and aggravated violations statute. Bail is ordered reinstated except as to any bail applied to pay the fine for the unlawful acts conviction.
NOTES
[1] Minn.Stat. § 169.129 states:
Any person who drives, operates, or is in physical control of a motor vehicle, the operation of which requires a driver's license, within this state in violation of section 169.121 * * before his driver's license or driver's privilege has been reinstated following its cancellation, suspension or revocation (1) because he drove, operated, or was in physical control of a motor vehicle while under the influence of alcohol or a controlled substance or while he had an alcohol concentration of 0.10 or more or (2) because he refused to take a test which determines the presence of alcohol or a controlled substance when requested to do so by a proper authority, is guilty of a gross misdemeanor.
[2] The effect of allowing such a stipulation in a prosecution under § 169.129 is "that the case will be submitted to the jury as an ordinary DWI case." Berkelman, 355 N.W.2d at 397 n. 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3865171/ | These two actions in assumpsit in assumpsit on promissory notes were tried together to a jury and resulted in a verdict of $684.17 for each plaintiff. Defendants' motion for a new trial in each case was denied. The cases are before *Page 121
us on exceptions to these decisions and on certain other exceptions to rulings during the trial.
The plaintiffs and the defendants are the original parties to the two notes, which are identical except for the names of the respective payees. They are dated September 29, 1936, payable one year from that date, and signed by the defendants, Timothy J. Falvey and "Mrs. T.J. Falvey". Unless otherwise indicated the word defendant will hereinafter refer to Timothy J. Falvey.
It appears in evidence that in July 1936 the plaintiffs, who were experienced in running a laundry, agreed to go into the laundry business with the defendant, who apparently had no such experience, and to this end the parties incorporated as the Pawtuxet Valley Laundry, Inc., hereinafter called the corporation. Each plaintiff invested $750 in the venture and received therefor seven and one half shares of stock of the corporation, while the defendant invested $2000 and received twenty shares of that stock. The corporation had no other assets. This money, in the aggregate sum of $3500, was spent mainly in buying, for cash or on terms, the necessary machinery and installing the same on premises owned by defendant's wife. Mary F. Falvey, which she leased to the corporation for $1 a year. The laundry began to operate about the middle of August 1936, with the plaintiffs in charge of the business in its various branches, including the hiring of all help.
Some five weeks thereafter the corporation found itself unable to meet its obligations, which amounted to about $5000. The plaintiffs thereupon decided to sell their shares of stock in the corporation and, in conformity with a provision of its by-laws, first offered them to the defendant, who refused to buy them, as they were worthless in his opinion. Finding no other purchaser for the shares, the plaintiffs again offered them to the defendant, who finally consented to buy them, according to his testimony, upon certain terms and conditions.
The defendant testified that he agreed to pay $1000 to *Page 122
each plaintiff, $500 in cash and $500 by promissory note payable in one year, on the following conditions: first, that each plaintiff continue to work for him, at least for that time, at a salary of $22 a week for Bettencourt and of $17 a week for Amaral; second, that each plaintiff would use his best efforts to build up the business of the laundry, as if it were his own; and, third, that each plaintiff would not engage in the laundry business in competition with him in that section of this state commonly known as the Pawtuxet Valley. Throughout his testimony the defendant insisted that he was not buying the shares of stock, as such, for they had no value; and that, although he took a transfer of the shares, what he really bought was "everything that went with it", including also "the good will of the business." The defendant further testified that this agreement, which was entered into at the laundry, was made known by the parties to the lawyer who drew the notes and also to Mrs. Falvey, when, at the plaintiffs' request, they all went to his home for her signature on the notes. The testimony of Mrs. Falvey in reference to the above-mentioned conditions is to the same effect.
In their testimony neither plaintiff recalled any definite agreement in connection with the notes. Amaral, however, admitted that he had agreed that, on the Monday following the delivery of the notes, he would start working for the defendant for $17 a week, while Bettencourt testified that he refused to work for the defendant, as the latter offered to pay him only $10 or $15 a week. Amaral also testified that he did not go to work on that Monday because, on the preceding Saturday, the defendant told him that he could not afford to pay him more than $10 a week. The defendant denied the testimony of both plaintiffs on this point.
Amaral further testified that he and Bettencourt worked on the Saturday of the week in which the notes were delivered. On the other hand, Falvey testified that the laundry was ordinarily closed on that day; that he had occasion to go to the laundry after working hours on Friday of that *Page 123
week and saw nothing unusual about the place; that he next went there early the next Monday morning and found the place closed, neither the plaintiffs nor the other help having reported for work; that he then went looking for the plaintiffs and found Amaral picking up laundry for an independent laundry driver, so-called, but could not find Bettencourt. On this point the latter testified that he had gone to New York for a rest; that shortly after his return he bought out a laundry in Hope Valley; and that he did serve some customers in the Pawtuxet Valley, the territory covered by the defendant's laundry.
By questions, which were excluded on plaintiffs' objections, the defendants sought to show that when the defendant Falvey entered the laundry on Monday morning he found that the "flat" was gone, the records were missing, the boiler was disconnected and without water, the extractor was dismantled, and dye had been thrown into the washers. Following the rulings excluding these questions, the defendants made an offer of proof as to such matters, which was denied by the trial justice. The same situation, both as to the exclusion of testimony and the denial of an offer of proof, arose in connection with the testimony of defendants' witness Harry D. Whitman, who was with the defendant Falvey when he went to the laundry on that Monday morning. The issue raised by these rulings is the subject of defendants' exceptions 2, 3, 4, 5, 6, 7, 9, 10 and 11.
The defendants contend that the proffered testimony was pertinent, as it tended to show, when considered with all the other circumstances in evidence, a total failure of consideration for the notes, and that its exclusion was prejudicial error. The plaintiffs, on the other hand, contend that such testimony was immaterial, as the defendants had received all that was bought from the plaintiffs, namely, the fifteen shares of stock which they owned; and that the right to recover for any damages resulting from their alleged improper conduct was in the corporation and not in the defendants. The trial justice apparently adopted the plaintiffs' *Page 124
view in this matter and excluded the testimony under consideration.
In adopting this view the trial justice misconceived the real purpose of the testimony that was excluded. The controlling issue in the case was whether the transaction in question was the sale of shares of stock and nothing more, as the plaintiffs contend, or whether such sale was incidental to an agreement with the conditions hereinbefore set forth, as the defendants contend. It is clear to us that the excluded testimony was offered by the defendants as tending to prove, in conjunction with all the other circumstances in evidence, a breach of the alleged agreement amounting, in substance, to a total failure of consideration, which agreement, according to the defendants, was the real consideration for the transaction with the plaintiffs. In our opinion, such testimony had a material bearing on the question of defendants' liability and its exclusion was prejudicial error.
Defendants' exceptions 2, 3, 4, 5, 6, 7, 9, 10 and 11 are sustained. In view of this conclusion it becomes unnecessary to consider defendants' other exceptions.
The cases are remitted to the superior court for a new trial. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4000145/ | Plaintiff brought this action to recover the amount of certain checks alleged to have been converted *Page 342
by the defendant bank. From a directed verdict in plaintiff's favor upon which a judgment was entered, this appeal was taken.
The facts of the alleged conversion are briefly as follows: The respondent corporation, with its place of business in Seattle, had in its employ one Culpepper, whose duties were that of bookkeeper and cashier as well as salesman. The bank account of the corporation was kept in the Dexter Horton National Bank, and all checks were required to be signed by a Mr. Belcher, the corporation's president, or its secretary, Mr. Paddock. It appears that Culpepper also countersigned the checks issued by the corporation, but this was not required so far as the depository bank was concerned, but was a method employed by the corporation to be sure that such checks were entered upon its books. Culpepper's instructions required him to deposit all checks belonging to the corporation in the depository bank. To this end, he was provided with the customary rubber stamp reading:
"Pay to the Order of Ballard Branch Dexter Horton National Bank of Seattle. California Stucco Co. of Washington."
He had no authority to cash, endorse, handle or dispose of the checks in any other manner.
Culpepper, however, decided to embezzle some of the moneys of the corporation, and to this end adopted the following scheme: The corporation had in its office another rubber stamp reading: "California Stucco Company of Washington." This stamp was used for marking goods, packages, etc., and was not intended for use on checks. Culpepper would take checks belonging to the corporation and affix this stamp on the back and underneath it write "By Charles Culpepper." Those checks were then presented by him to certain retail establishments and cashed. The money so *Page 343
received was converted by him to his own use. The firms receiving the checks involved in this action all deposited them in the Marine National Bank of Seattle, and the proceeds were collected by that bank from the several banks on which they were drawn. When the corporation discovered these facts, it brought suit on the theory that the Marine National Bank, by collecting the proceeds of the checks had in law been guilty of conversion.
[1] The facts just stated are not in dispute, and we turn to the first point raised by appellant, namely, that the appellant was not liable, because it had no notice that Culpepper's endorsement was without authority. It seems to be contended that notice or knowledge of want of authority is the controlling feature in cases of this character. In support thereof appellant has cited Hill Syrup Co. v. American Savings Bank Trust Co.,133 Wn. 501, 234 P. 11, where we held not liable a bank which paid corporate checks drawn by the president of the corporation in favor of another corporation in which he had a controlling interest, on the ground that the bank had no notice of want of authority to draw the checks. The distinction between that action and this is quite obvious. There the checks were drawn by one having authority to draw the checks of the corporation, but did not have authority to draw the particular checks. This, however, was something that the bank in that action could not know. Its duty was to see that the check was drawn by one having authority to sign the corporation's checks, and nothing but a personal investigation would disclose whether each particular check was authorized by the corporation.
Here the endorsement was made by one having no authority, under any conditions, to endorse the checks belonging to the corporation. The bank stands in the *Page 344
same position with regard to the endorsements as the stores where the checks were first cashed. The parties cashing them had no right to assume that, because Culpepper was employed by the California Stucco Company, he also had authority to endorse and cash its checks. If mere employment furnishes apparent authority to endorse checks, then no business would be safe.
The observation of the New York Court of Appeals in StandardSteam Specialty Co. v. Corn Exchange Bank, 220 N.Y. 478,116 N.E. 386, is especially illuminating. In that case it appeared that a bookkeeper whose powers were limited to placing a rubber stamp endorsement on the back of checks belonging to the corporation and depositing them, took several checks, endorsed them in her own handwriting, cashed them with third parties and kept the proceeds. The parties who cashed the checks presented them to the defendant bank, which was not the depository bank. The bank collected the checks from the drawers. Neither the parties who first cashed the checks nor the bank had any notice of the fact that the endorsements were without authority or were made for the bookkeeper's personal benefit. Said the court:
"Any person taking checks made payable to a corporation, which can act only by agents, does so at his peril, and must abide by the consequences if the agent who indorses the same is without authority, unless the corporation is negligent (People v. Bankof North America, 75 N.Y. 547), or is otherwise precluded by its conduct from setting up such lack of authority in the agent as inPhillips v. Mercantile Nat. Bank of N.Y., 140 N.Y. 556,35 N.E. 982, 23 L.R.A. 584, 37 Am. St. Rep. 596.
"If the original indorsement was authorized, the diversion of the funds after indorsement would not make it a forgery; but, if the original indorsement *Page 345
was unauthorized, parties dealing with the wrongdoer and innocent parties alike were bound to know the lack of the agent's authority to convey title away from the true owner to any one. Cohen had power to make deposits in the Greenwich Bank; she had no power to collect the checks or even to deposit them elsewhere for collection. She was a mere conduit through which the checks received by her employer passed to her employer's bank for collection. The right to indorse was a mere incident to the authority to deposit. Banking customs imply such authority to indorse pro forma from the right to make the deposit to the credit of principal's account, and it may be said that the specific authority to place this restrictive indorsement on the checks added nothing to Cohen's authority to deposit the checks. The indorsement was a necessary and customary incident to the act of making such deposits. The business man who authorizes his clerk to take his checks to his bank for deposit does not vest in her so dangerous a power as to preclude him from setting up her lack of authority if she indorses his name in blank and innocent persons cash the checks for her without inquiry. The stringent rules of agency and the arbitrary rules of the law of negotiable paper alike protect the principal from such unauthorized acts. If greater authority has been conferred, expressly or by implication, or if the principal has been negligent or has ratified the conduct of his agent, the law will not shield him; but here the facts are stipulated, and the only question of law presented is whether the indorsement of the checks by the plaintiff's agent was without its authority, and therefore a forgery. Precedent and the custom of merchants alike indicate that the transaction was not a mere diversion of funds and it follows that the plaintiff may recover."
To the same effect see United States Portland Cement Co. v.United States Nat. Bank of Denver, 61 Colo. 334, 157 P. 202, and Schaap v. State Nat. Bank of Texarkana, 137 Ark. 251,208 S.W. 309, and cases there cited. *Page 346
The rule has been well stated in a note to 31 A.L.R., p. 1063, as follows:
"According to the general rule, a bank or other corporation, or an individual, who has obtained possession of a check upon an unauthorized or forged endorsement of the payee's signature, and who collects the amount of the check from the drawee, is liable for the proceeds thereof to the payee or other owner, notwithstanding they have been paid to the person from whom the check was obtained."
The note is attached to the well-considered case of Allen v.Mendelsohn Sons, 207 Ala. 527, 93 So. 416, 31 A.L.R., p. 1063.
The principle deducible from these premises and the universal weight of authority is that neither the good faith of the bank or its lack of notice are material in cases of this character, and we conclude that this point is not well taken.
[2] Complaint is also made that respondent should have instituted suit against the makers of the checks upon the theory that the appellant bank had no authority to collect, and the checks, so far as respondent is concerned, have not been paid. But whatever rights respondent possesses, whether it be to sue the makers of the checks, the appellant bank, or the parties who originally cashed the checks is not material here. The question more properly is: Has the respondent a right to sue the appellant? The cases cited support this authority abundantly, and they are based upon the theory that the respondent may ratify the collection of the checks, but deny that the appellant bank has any title to the proceeds thereof.
In United States Portland Cement Co. v. United StatesNational Bank of Denver, supra, this precise point is disposed of as follows:
"It is conceded that the drawee bank would have a cause of action against the defendant in error for *Page 347
the amount of these checks. This, upon the theory that they had never been paid and that the plaintiff could still recover the amount from the maker of the check, and that the maker in turn could prevent the drawee bank from charging the amount to his account. If the plaintiff in error had authorized the defendant in error bank to make these collections for it, the drawee bank could not recover back from the defendant in error bank, and the maker of the check could not prevent the payee bank from charging the amount to its account. When the plaintiff in error ratified this collection, the same result follows, and the defendant in error bank, not having accounted to it for the money (if the allegations of the complaint are true) it has its cause of action therefor."
[3] Error is also urged because the trial court refused to admit evidence concerning what is termed negligence upon the part of the corporation in failing to strictly supervise, watch and control the actions of Culpepper. Negligence is no defense to an action of this character. Culpepper had no right to endorse the checks or accept the proceeds. It was not claimed that there was any evidence of even apparent authority other than his mere employment. Can one who takes from a servant that which belongs to the master be heard to say upon demand by the master for its return, "You were negligent in trusting your servant"?
The rule is that one who acts upon the endorsement of negotiable paper must ascertain its genuineness at his peril.Independent Oil Men's Ass'n v. Fort Dearborn Nat. Bank, 226 Ill. App.? 570; Schmidt v. Garfield National Bank, 64 Hun (N.Y.) 298, 19 N.Y. Supp. 252.
Other assignments of error have been carefully considered and found to be unavailing to the appellant.
The judgment is affirmed.
HOLCOMB, PARKER, and BEALS, JJ., concur. *Page 348 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1715060/ | 567 N.W.2d 724 (1997)
Tim WHITE, et al., individually and on behalf of the State of Minnesota, Appellants,
v.
MINNESOTA DEPARTMENT OF NATURAL RESOURCES, Respondent, and
Birch Terrace, et al., Defendant-Intervenors, Respondents.
No. C8-97-62.
Court of Appeals of Minnesota.
August 19, 1997.
*728 Elizabeth H. Schmiesing, Brian B. O'Neill, Richard A. Duncan, Faegre & Benson L.L.P., Minneapolis, for appellants.
Hubert H. Humphrey, III, Attorney General, Craig L. Engwall, Assistant Attorney General, David P. Iverson, Assistant Attorney General, St. Paul, for respondent Minnesota Department of Natural Resources.
Grant J. Merritt, Burber Timmer Zahn, P.L.L.P., Minneapolis, for Defendant-Intervenors, Repondents.
Considered and decided by NORTON, P.J., and PETERSON and AMUNDSON, JJ.
OPINION
PETERSON, Judge.
In this appeal from a summary judgment, appellants argue that the district court erred in determining that: (1) the Minnesota Department of Natural Resources is not required to prepare an environmental impact statement for a trail project, and (2) appellants failed to establish a prima facie case under the Minnesota Environmental Rights Act. We affirm in part, reverse in part, and remand.
FACTS
In 1975, the legislature authorized construction of the Northshore trail, beginning in Duluth, extending northeasterly through Two Harbors and Grand Marais, and ending at the Canadian border near the north shore of Lake Superior. The 146-mile section of the trail from Duluth to Grand Marais was completed in 1984. The remaining 40-mile section of trail from Grand Marais to the Canadian border was not completed in 1984 because the Grand Portage Indian Reservation's Business Committee denied respondent Minnesota Department of Natural Resources (DNR) permission to build the trail across reservation land. The Northshore trail has been used primarily by snowmobilers and hikers.
In 1988, the Cook County Board of Commissioners passed a resolution requesting that the Northshore trail be completed to the Canadian border. In 1990, the Grand Portage Indian Reservation announced its willingness to cooperate in completing the trail. In 1991, representatives from the DNR, the United States Forest Service (USFS), which was involved in the project because part of the proposed trail would pass through Superior National Forest, and the Grand Portage Indian Reservation met to discuss a preliminary route for the trail extension.
USFS and DNR personnel began assessing potential environmental impacts resulting from development of an identified trail corridor. A federal environmental assessment, completed by the USFS in 1993, concluded that no significant environmental impact would likely result from trail construction across USFS lands and recommended construction of a specified trail corridor. Following an appeal by local residents, the environmental assessment was withdrawn, and a broader review of the potential environmental impact of the entire trail extension, including evaluation of alternative routes, was undertaken by the USFS and the DNR.
*729 The DNR prepared an alternative form environmental assessment worksheet (AEAW) for the proposed trail extension. The AEAW addressed environmental effects that would or could result from the proposed trail extension, and dealt with issues of public concern. The AEAW analyzed three alternatives: (1) not constructing the proposed trail extension; (2) a southern trail route; and (3) a northern trail route.
After the AEAW was completed and made available for public review, a 30-day public comment and review period occurred. Following the comment and review period, the DNR issued a record of decision concluding that the proposed trail extension did not have the potential for significant environmental effects and therefore no environmental impact statement (EIS) was required for the project. The record of decision specifically addresses issues raised during the public comment and review period and states that its conclusion is
[b]ased on consideration of the criteria and factors specified in the Minnesota Environmental Review Program Rules to determine whether a project has the potential for significant environmental effects, and on the findings and record in this matter.
Appellants began this action against the DNR, alleging claims under the Minnesota Environmental Policy Act (MEPA) and the Minnesota Environmental Rights Act (MERA). Appellants sought a declaratory judgment compelling the DNR to prepare an EIS for the proposed trail extension and an injunction prohibiting the DNR from proceeding with construction of the trail extension. The district court granted respondents' motion for summary judgment.
ISSUES
1. Is the DNR's decision not to prepare an EIS supported by substantial evidence in the record and not arbitrary and capricious?
2. In deciding appellants' claims under MEPA and MERA, should the district court have considered evidence outside the administrative record?
3. May appellants maintain a MERA action against the DNR to challenge a project for which the DNR has conducted environmental review under MEPA?
4. Did appellants present a prima facie case under MERA?
ANALYSIS
On appeal from a summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). This court must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,
cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.
Krogness v. Best Buy Co., 524 N.W.2d 282, 285 (Minn.App.1994), review denied (Minn. Jan. 25, 1995).
[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.
Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn.App.1994).
I.
Appellants contend that the district court erred in determining that the AEAW process used by the DNR for the trail extension project is exempt from MEPA and therefore shielded from judicial scrutiny. The district court, however, did not determine that the AEAW process used by the DNR is not subject to judicial scrutiny. The court made no specific determination regarding the AEAW process. The district court simply determined that because the Northshore trail was an enactment of the legislature, the trail extension project was exempt from MEPA, and, therefore, the DNR was not required to prepare an EIS.
Appellants argue persuasively that the trail extension falls within exceptions to the MEPA exemption for legislative enactments. *730 Under these exceptions, appellants contend, an EAW was mandatory. Therefore, the district court erroneously concluded that the trail extension is exempt from MEPA. Whether an EAW was mandatory, however, is a moot issue because an EAW was prepared.
The DNR elected to prepare a discretionary EAW under Minn. R. 4410.1000, subpt. 3D (1995) (discretionary EAW shall be prepared "when the proposer wishes to initiate environmental review to determine if a project has the potential for significant environmental effects"). For purposes of determining whether an EIS is required, the rules do not distinguish between a mandatory and a discretionary EAW. See, e.g., Minn. R. 4410.1000, subpts. 2-3 (1995) (addressing mandatory and discretionary EAW categories),.1200 (1995) (EAW content), .1400 (1995) (preparation of an EAW), .1700 (1995) (decision on EIS). The DNR requested permission from the Minnesota Environmental Quality Board (EQB) to use an alternative form for the EAW. The EQB chair may approve the use of an alternative EAW form. Minn. R. 4410.1300 (1995). EQB granted the request, and the DNR prepared an AEAW. Minn. R. 4410.1300 does not limit the use of an alternative form to a mandatory EAW. The DNR sought public comments on the AEAW. See Minn. R. 4410.1600 (1995) (30-day period for review and comment on EAW begins on day EAW availability notice is published). Finally, based on the AEAW and the comments received on the AEAW, the DNR determined that the trail extension does not pose potentially significant environmental effects and decided not to prepare an EIS. See Minn. R. 4410.1700 (1995) (decision on EIS). The district court determined that the DNR's decision not to prepare an EIS was supported by substantial evidence and was not arbitrary or capricious.
Appellants argue that the discretionary AEAW prepared by the DNR was deficient in that it did not contain information that it was required to contain under MEPA, and as a result, the DNR did not consider factors it was required to consider when deciding whether to prepare an EIS. This court
attaches a presumption of correctness to agency decisions and shows deference to an agency's conclusions in the area of its expertise. When reviewing any agency's determination, the court independently examines the agency's record and decision and need not defer to a lower court's decision on the same matter.
Agency decisions are reversed only when they reflect an error of law, the findings are arbitrary and capricious, or the findings are unsupported by substantial evidence. The court has endorsed the following definition of "substantial evidence":
1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
2. More than a scintilla of evidence;
3. More than some evidence;
4. More than any evidence; and
5. Evidence considered in its entirety.
The substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency in view of the entire record as submitted. If an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfinder. The court will intervene, however, where there is a "combination of danger signals which suggest the agency has not taken a `hard look' at the salient problems" and the decision lacks "articulated standards and reflective findings."
Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668-69 (Minn.1984) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977)).
An agency ruling
is arbitrary and capricious if the agency: (a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency's expertise.
*731 Minnegasco v. Minnesota Pub. Utils. Comm'n, 529 N.W.2d 413, 418 (Minn.App. 1995), rev'd on other grounds, 549 N.W.2d 904 (Minn.1996).
Appellants argue that the AEAW failed to analyze adequately the cumulative potential effects of the trail extension because the only mention of cumulative impacts in the AEAW was that,
[c]ompletion of the final link of the North Shore State Trail is expected to increase use along the full length of the trail. An estimated 12,000 to 16,800 trips are expected by the 2000-2001 snowmobiling season along the North Shore Trail at a point just west of Grand Marais.
The AEAW, however, also contains the following additional cumulative effects analysis:
Increased recreational activity and tourism will positively affect the local and regional economy * * *, and have mixed, less measurable effects on communities within the affected area * * *. These effects are discussed in detail in supporting technical documents which are available from project proposer. Negative effects described in these reports are not anticipated to be of a lasting, measurable or regional significant nature.
Effects on the Grand Portage Reservation, the City of Grand Portage, Pigeon River and to the Ontario Trail System are expected to be similar to those described for eastern Cook County. Commerce encouraged by the presence of snowmobilers include resorts and lodging, restaurants and taverns, and gasoline and convenience stores. Although there are instances of such enterprises being located in remote areas, new facilities would most likely be constructed on property with ready access to year-round roads or highways. In most cases, connecting trail systems are already in place, so no major trail construction is anticipated. Some of these trails may eventually need to be improved to accommodate added use. Were the extension not constructed, it is reasonable to assume that the development pattern currently evolving in eastern Cook County would continue. That is, development of businesses based around homesteads, self-employment and low-intensity cottage industries. Examples include horse-powered logging, exotic bird raising, spiritual retreats, dog sledding and various forms of motorized and non-motorized recreation.
Although not very detailed, the analysis indicates that the DNR concluded the proposed trail extension would not significantly add to the environmental impact of the existing trail. An "EAW is not intended to be a detailed analysis of potential environmental impacts of a proposed project." Iron Rangers for Responsible Ridge Action v. Resources, 531 N.W.2d 874, 880 (Minn.App. 1995), review denied (Minn. July 28, 1995).
"The EAW is a brief document prepared in worksheet format which is designed to rapidly assess the environmental effects which may be associated with a proposed project" and to help determine "whether an EIS is needed."
Id. (quoting Minn. R. 4410.1000, subpt. 1 (1993)). Appellants do not contend that the analysis or its conclusion is contrary to the evidence in the administrative record. Cf. Trout Unlimited, Inc. v. Minnesota Dep't of Agriculture, 528 N.W.2d 903, 908 (Minn.App. 1995) (determination was arbitrary when contrary to evidence in the record), review denied (Minn. Apr. 27, 1995).
Appellants also argue that the DNR failed to consider the cumulative effect of the trail on the Grand Portage Indian Reservation. The AEAW states that "[i]ssues beyond the scope of this evaluation include * * * studies of impacts to the Grand Portage Reservation." The record of decision states that the DNR did not
conduct an in-depth social or economic analysis of potential project-related effects to the town of Grand Portage or to Grand Portage Band Members.
But the AEAW's cumulative effects analysis quoted above indicates that the DNR did consider likely effects on the Grand Portage Reservation.
Appellants also contend that the DNR failed to consider the cumulative effects of future spur trails on the Northshore trail. The DNR acknowledges that two spur trails *732 have been proposed by local residents and that they might be developed in the future. But the record of decision states, "No specific request for required DNR approval has been submitted. No known future projects are anticipated for this site." Because there were no specific plans for the spur trails, any effects they may have on the Northshore trail are speculative, and any consideration of these effects is equally speculative.
In Trout Unlimited, the record indicated that
it would be impossible to determine the potential for significant environmental effects associated with the irrigation project without determining the extent of future plans for farming and irrigation in the area.
528 N.W.2d at 908. Here, in contrast, appellants cite nothing in the record indicating that the Northshore trail's potential for significant environmental effects cannot be determined without determining the effects of two potential spur trails. In fact, appellants do not cite any evidence indicating that the spur trails will have any effect on the Northshore trail.
Relying on Trout Unlimited, appellants argue that the DNR improperly based its conclusion that the proposed trail extension did not have the potential for significant environmental effects on the possibility of future mitigation efforts. In Trout Unlimited, the Commissioner concluded:
Monitoring and permit conditions can identify significant impacts and modify or terminate the project if necessary.
Trout Unlimited, 528 N.W.2d at 909. This court decided:
Under the Commissioner's analysis, the irrigation project would go forward without an EIS and in the event significant environmental effects did occur, the Commissioner would then rely on monitoring or restrictive permitting procedures to reduce or eliminate those deleterious effects. The very purpose of an EIS, however, is to determine the potential for significant environmental effects before they occur.
Id. (emphasis in original).
Mitigation is an appropriate criterion to consider when determining the potential for significant environmental effects. Minn. R. 4410.1700, subpt. 7.C. In Trout Unlimited, the Commissioner did not consider environmental effects likely to result from the project or how any effects could be mitigated in determining the need for an EIS, but instead deferred those considerations until construction of the project was underway. Here, the AEAW extensively addresses the extent to which identified environmental effects can be mitigated:
No significant runoff problems are anticipated if mitigation measures are properly followed. Erosion control measures must also be appropriate for and tailored to site characteristics. Appropriate measures will include a mix of hay bales, check dams, seeding and mulching, silt fences, and sediment ponds. The Cook County Soil & Water Conservation District will be consulted prior to construction to determine recommended erosion control practices.
* * * *
* * * Wetland impacts resulting from filling or draining can be kept to a minimum by avoidance, minimization, and lastly, through mitigation. Whenever possible, wetland crossings will be winter-only, with summer trail users rerouted to existing roads and trails * * *. The use of winter crossings will help minimize the filling of natural functioning wetlands. Unavoidable wetland impacts must be mitigated for under the Wetland Conservation Act, Executive Order 91-3 and under the U.S. Army Corps of Engineers' Section 404 permit program.
Certain federally-protected wetlands may require avoidance rather than mitigation because artificially created wetlands are less effective at removing non-point source pollutants, and they do not always retain all of the characteristics of a naturally-functioning wetland. To increase the likelihood of successful mitigation, wetlands should be replaced in-kind and in-place. Natural wetland soils removed during trail construction should be used in mitigation areas to provide a seed bank for natural revegetation. Restoration or rehabilitation of previously degraded wetland areas *733 should also be considered for mitigation purposes.
* * * *
* * * Routing the trail away from ecologically-significant forest stands and through forest types more dependent upon disturbance (e.g., shade intolerant hardwoods) will minimize disturbance to sensitive natural communities. Efforts will also be made to avoid separating or isolating unbroken tracts of forest and to keep the trail corridor as narrow as possible through contiguous forest areas to reduce fragmentation effects. Trails & Waterways staff will route the final trail corridor carefully with the (on-site) assistance of DNR Wildlife and SNA staff to avoid designated or candidate "old-growth" stands, large "forest patches" and other high quality plant communities. Other suggested mitigation measures include following old roads or trails where possible, minimizing trail width and forest canopy gaps, and re-seeding disturbed areas promptly with native plant and grass species.
* * * *
* * * Concerns about soil erosion, sedimentation and impacts to water quality and stream habitat are most pronounced during trail construction when unstabilized soil is temporarily exposed to the elements. Culvert crossings also present a challenge during construction, due to the in-channel disturbance typically required during installation. However, sediment sources diminish with time as vegetation becomes reestablished on the fill material and along stream approaches.
Excavating will be kept to a minimum in order to minimize soil erosion and potential drainage problems. Where the trail passes over large rocks and boulders, the trail will be constructed by leveling low spots with fill rather than by cutting the area with heavy equipment. Rocks and soil disturbed during construction will be used whenever possible in trail construction. Excess material will be deposited at agreed upon waste areas and seeded to grass. Where the trail parallels an existing road, the trail will serve as a winter-only route, not requiring the installation of culverts.
Where the trail follows lakes, streams, rivers or ponds, the Cook County Shoreland Zoning Ordinance will be observed (i.e., setbacks, screening) and a suitable distance maintained between water bodies and the trail to protect water quality. Buffer strip width will be determined by the amount and type of vegetation, and by the slope and trail grade. Erosion control measures will be employed as appropriate (e.g., hay bales, check dams, seeding and mulching, silt fences, sediment ponds, etc.), along the full length of the extension, to prevent water movement down the trail causing erosion, soil sedimentation and degradation of water resources. Runoff will be directed into vegetated areas. Cut banks will also be revegetated with a native seed mix that is beneficial to wildlife.
* * * *
* * * Under normal wildland conditions, snowmobiles manufactured subsequent to 1975 should emit no more than 34 dB(A) at a distance of 300 yards approximately the same level as a soft whisper [i.e., 35 dB(A)] at 5 feet. Still, in remote, semiprimitive recreation areas, like the interior of Cook County, even a much lower noise level is likely to give rise to annoyance, especially among those who have spent considerable time and dollars to escape noise and human activity. Conflicts thus seem inevitable, despite the advent of newer, quieter snowmobiles. These conflicts will be addressed by maximizing the distance between the trail corridor and year-round residences, and by reducing the speed of snowmobiles in inhabited areas. Vegetative screening and natural sound barriers will be used in problem areas, and careful trail planning, engineering and design should further reduce offending snowmobile noise. Even snowbanks and trees have been shown effective in reducing noise levels by up to 20 dB(A) when placed between machine and listener. These mitigative measures, coupled with strict enforcement of speed limits, should address most concerns regarding snowmobile noise. Continuing complaints will be dealt *734 with on a case-by-case basis by the Trail Manager.
Because the AEAW sets forth specific mitigation measures to address specific environmental effects, it was proper for the DNR to consider mitigation measures in determining the potential for significant environmental effects. See Iron Rangers for Responsible Ridge Action, 531 N.W.2d at 881 (when proposed mitigation measures were "more than mere vague statements of good intentions," county properly considered mitigation of the environmental effects in determining that an EIS was not required).
Based on the administrative record, we conclude that substantial evidence supports the DNR's decision that no EIS was required for the trail extension and the decision was not arbitrary and capricious.
II.
Appellants next contend that the DNR failed to address adequately the proposed trail extension's effects on several natural resources. Appellants submitted evidence regarding these effects that was not part of the administrative record and argue that because the AEAW was inadequate, the district court should have considered this evidence. The evidence includes deposition testimony and affidavits regarding potential environmental effects resulting from construction of the proposed trail extension, how the DNR decides whether an EIS is required, and how the DNR would address environmental concerns that could arise during construction. The DNR requested that the district court exclude the additional evidence. The district court did not rule on the request or refer to the evidence in its order or memorandum.
We first note that the record does not establish that the district court did not consider the evidence submitted by appellants. The evidence was not excluded by the district court, and it is part of the record on appeal.
"It is well to bear in mind that on appeal error is never presumed. It must be made to appear affirmatively before there can be reversal. Not only that, but the burden of showing error rests upon the one who relies upon it."
Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975)(quoting Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464 (1944)). Because we independently examine the agency decision and do not defer to the district court's decision, however, we will discuss the purposes for which the evidence may be considered.
Minn.Stat. § 116D.04, subd. 2a(b) (1996), provides:
The responsible governmental unit shall promptly publish notice of the completion of an environmental assessment worksheet in a manner to be determined by the board and shall provide copies of the environmental assessment worksheet to the board and its member agencies. Comments on the need for an environmental impact statement may be submitted to the responsible governmental unit during a 30 day period following publication of the notice that an environmental assessment worksheet has been completed. The responsible governmental unit's decision on the need for an environmental impact statement shall be based on the environmental assessment worksheet and the comments received during the comment period, and shall be made within 15 days after the close of the comment period.
(Emphasis added.)
Under the plain language of the statute, the DNR was required to base its decision on the administrative record. Also, concerns about the adequacy of the EAW could have been raised during the comment period, and the DNR would have had an opportunity to apply its expertise in responding to the concerns. Had concerns been raised during the comment period, they would have become part of the administrative record. Permitting a reviewing court to consider evidence outside the administrative record when reviewing an agency decision that must be based on the administrative record raises the possibility that the court will second-guess the agency on the basis of the additional evidence. Therefore, evidence submitted for *735 the first time to the district court may only be considered for limited purposes.
The court may consider evidence outside the administrative record when (1) the agency's failure to explain its action frustrates judicial review; (2) additional evidence is necessary to explain technical terms or complex subject matter involved in the agency action; (3) the agency failed to consider information relevant to making its decision; or (4) plaintiffs make a showing that the agency acted in bad faith. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-37 (9th Cir.1988).
[A]llegations that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept "stubborn problems or serious criticism * * * under the rug," raise issues sufficiently important to permit the introduction of new evidence in the District Court, including expert testimony with respect to technical matters, both in challenges to the sufficiency of an environmental impact statement and in suits attacking an agency determination that no such statement is necessary.
County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-85 (2d Cir.1977).
The evidence introduced for the first time in the district court, however, would be probative only insofar as it tended to show either that the agency's research or analysis was clearly inadequate or that the agency improperly failed to set forth opposing views widely shared in the relevant scientific community.
Id. at 1385.
An EAW is a brief document "designed to set out the basic facts necessary to determine whether an EIS is required for a proposed project." Minn. R. 4410.0200, subpt. 24 (1995). It is difficult to imagine a situation where there would not be additional information that could be included in an EAW. But appellants cannot defeat a motion for summary judgment simply by presenting additional evidence that was not considered by the DNR when making its decision. Instead, appellants must present evidence that the DNR failed in its responsibility to prepare an EAW "designed to set out the basic facts necessary to determine whether an EIS is required," either by avoiding an issue or by ignoring evidence about an issue that was addressed.
If the evidence submitted outside the administrative record demonstrates that the agency's effort was clearly inadequate or that the agency failed to set forth widely shared relevant scientific views, the court's proper function is to remand to the agency for correction of the agency's errors. Reserve Mining Co. v. Minnesota Pollution Control Agency, 267 N.W.2d 720, 723 (Minn. 1978).
Rare and Sensitive Plants.
Relying on evidence outside the administrative record, appellants argue that rare and sensitive plants will not be adequately protected. A sensitive plant survey conducted by the DNR did not include mosses and lichens and may have missed species of concern because it was done late in the growing season. But the record of decision states that a "biological survey will be conducted prior to construction to avoid disturbance to sensitive plants and animals." Cf. Iron Rangers for Responsible Ridge Action, 531 N.W.2d at 882 (in rejecting argument that EIS was needed because RGU failed to conduct extensive botanical survey, court noted that botanical survey would be conducted before construction permit was issued).
The DNR trail manager for the Northshore trail testified that if rare and sensitive plants were encountered during construction and the trail could not be rerouted, the plants would be sacrificed. Testimony that rare and sensitive plants may not be protected if discovered is not evidence that such plants exist or that DNR failed in its responsibility to consider rare and sensitive plants when preparing the AEAW. Appellants cannot avoid summary judgment by producing evidence of a mere possibility of harm to rare and sensitive plants. They must produce "specific facts which establish the existence of a genuine issue for trial." Krogness, 524 N.W.2d at 285.
*736 Wetlands.
The DNR trail manager also testified that the trail extension would cross some wetlands that cannot be avoided because of topography. Appellants submitted an affidavit in which a forest hydrologist opined that the trail manager was not qualified to perform wetlands delineation. This evidence simply challenges the DNR's discretion in accepting the manager's qualifications. It does not demonstrate that the DNR avoided any wetlands issue or ignored evidence about wetlands.
Trail Use Estimates.
Appellants argue that the DNR did not adequately address the environmental impact of the proposed trail extension because the DNR's estimates for trail use were too low. A study performed for the DNR contained a high-use estimate of 24,800 snowmobiles for the 1995-96 season. The DNR trail manager reduced the estimate to 17,800 trips. Appellants argue that this reduction was arbitrary. But the evidence offered by appellants indicates that the numbers included in the raw data given to the consultant who prepared the study were "crude at best." Also, the trail manager explained the limitations of the raw data and described the process of estimating future trail use as "guesswork." Although a different analysis of the data may have yielded a different decision, appellants did not establish that the DNR's analysis of the data was clearly inadequate.
Old Growth Forest.
Relying on a DNR internal memorandum outside the administrative record, appellants argue that the proposed trail extension would adversely impact old growth forest stands. But the memo concerned a northern trail route, which the DNR decided not to pursue.
Grand Portage National Monument.
In an affidavit outside the administrative record, the superintendent of the Grand Portage National Monument, stated that the proposed trail extension would adversely affect the monument because of impacts associated with noise, visual intrusion on the historic setting, and the likelihood that snowmobiles will use the monument as a snowmobile trail. But the AEAW and the record of decision state that the DNR will follow state and federal regulations governing preservation of historical sites. The affidavit does not establish that the DNR's consideration of the potential impact on historic settings was inadequate.
Quietude.
Relying on evidence outside the administrative record, appellants argue that the DNR failed to evaluate adequately the quietude issue. Appellants submitted an affidavit stating that the DNR relied on incorrect assumptions, including that snowmobiles will travel in a single file and well-spaced manner and that snowmobiles will not leave the trail, in preparing the AEAW. The affidavit also states that the AEAW failed to address the impact of snowmobile noise in conjunction with other activities, such as timber harvesting, and that the AEAW failed to address the effects of noise on nonmotorized trail users. But the record includes scientific data that support the conclusions in the AEAW and in the record of decision that the trail extension will have no significant noise impact.
Air.
Appellants presented evidence to the district court indicating that the use of the proposed trail extension could result in interstate highway levels of air pollution. The record demonstrates that in preparing the AEAW, the DNR relied on an EIS prepared by the Montana Department of Fish, Wildlife and Parks for its snowmobile grant program and on state and federal data on snowmobile emissions. Appellants' evidence may contradict the evidence in the record, but it does not demonstrate that the DNR avoided an issue or ignored evidence.
Water Resources.
Relying on evidence outside the administrative record, appellants argue that the proposed trail extension may adversely impact designated trout streams and lakes. Appellants presented affidavits indicating that pollution from snowmobiles could make the waters unsuitable for trout to live in. *737 Appellants specifically express concern about Trout Lake. But the AEAW states that the DNR will comply with Minnesota Pollution Control Agency rules to protect the quality of the Trout Lake fishery. Again, appellants' evidence does nothing more than contradict the evidence in the record.
The evidence appellants submitted outside the administrative record did not establish a material question of fact regarding whether the DNR clearly failed in its responsibility to prepare an EAW either by avoiding an issue that should have been addressed or by ignoring evidence about an issue that was addressed.
III.
MERA, Minn.Stat. §§ 116B.01-.13 (1996) permits any person to maintain a civil action for declaratory or equitable relief against another person
for the protection of the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction * * *.
Minn.Stat. § 116B.03, subd. 1. The district court determined that appellants may bring an action against the DNR under MERA, but granted the DNR summary judgment on appellants' MERA claim because it concluded that appellants failed to establish a prima facie case. Appellants contend that the evidence they presented outside the administrative record established a prima facie case. The DNR argues that where environmental review has already occurred under MEPA, the scope of the district court's review of a MERA claim should be the same as the scope of review of a MEPA claim. Therefore, the DNR concludes, the district court should not have considered the evidence submitted outside the administrative record, and the court's review of appellant's MERA claim should have been limited to a determination whether the DNR's decision that the trail extension will not have significant environmental effects was arbitrary and capricious in light of the administrative record.
The DNR makes several policy arguments that MEPA and MERA have virtually identical purposes and remedies, and that, therefore, review on a MERA claim should be limited to the administrative record if environmental review has already occurred under MEPA. But the DNR cites no statutory language that distinguishes a MERA action following environmental review under MEPA from a MERA action where there was no environmental review.
Under MERA, the statutory definition of "person" includes "any natural person, any state, municipality or other governmental or political subdivision or other public agency or instrumentality." Minn.Stat. § 116B.02, subd. 2 (1996). Consequently, under the plain language of the statute, any natural person may maintain a civil action against a public agency for the protection of natural resources from pollution, impairment, or destruction. Appellants are natural persons who maintained such an action. Although appellants' MERA action is based on the same nucleus of facts as their MEPA action, the MERA action is an independent action brought originally in the district court. Unlike the MEPA action, the MERA action does not seek review of an agency decision. Therefore, there is no reason to limit the district court's scope of review as if it were reviewing an agency decision, and the district court was free to consider evidence outside the administrative record.
To establish a prima facie case under MERA, a plaintiff must show (1) the existence of a protectable natural resource; and (2) that defendant's conduct will or is likely to cause pollution, impairment or destruction of that resource. State by Schaller v. County of Blue Earth, 563 N.W.2d 260, 264 (Minn.1997). MERA defines "pollution, impairment or destruction," as "any conduct by any person which violates, or is likely to violate" any environmental quality standard, permit, or similar rule, or "any conduct which materially adversely affects or is likely to materially adversely affect the environment." Minn.Stat. § 116B.02, subd. 5 (1996).
Because almost every human activity adversely impacts a natural resource, and MERA cannot be construed "`as prohibiting virtually all human enterprise,'" Schaller, 563 N.W.2d at 265 (quoting State ex rel. *738 Wacouta Township v. Brunkow Hardwood Corporation, 510 N.W.2d 27, 30 (Minn.App. 1993)), the following factors are considered to determine whether conduct materially adversely affects, or is likely to materially adversely affect, the environment, and therefore, whether the second prong of a prima facie MERA case has been established:
(1) The quality and severity of any adverse effects of the proposed action on the natural resources affected;
(2) Whether the natural resources affected are rare, unique, endangered, or have historical significance;
(3) Whether the proposed action will have long-term adverse effects on natural resources, including whether the affected resources are easily replaceable (for example, by replanting trees or restocking fish);
(4) Whether the proposed action will have significant consequential effects on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed);
(5) Whether the affected natural resources are significantly increasing or decreasing in number, considering the direct and consequential impact of the proposed action.
Id. at 267.
These factors are not exclusive and each factor need not be met in order to find a materially adverse effect. Rather, the factors are intended as a flexible guideline for consideration as may be appropriate based on the facts of each case.
Id.
When considering these factors in the context of a summary judgment motion, the court must view the evidence in the light most favorable to the nonmoving party. See Bennett v. Storz Broadcasting Co., 270 Minn. 525, 531, 134 N.W.2d 892, 897 (1965) (party moving for summary judgment has burden of proof and nonmoving party has benefit of view of evidence in light most favorable to him).
The district court concluded that appellants' concerns regarding the trail extension's effects on natural resources "are principally speculative in nature and in no event rise to the prima facie standard required to be met under MERA."
It appears, however, that in reaching this conclusion, the district court did not view the evidence in the light most favorable to appellants. The district court stated in its memorandum:
Defendant DNR made a determination that the Trail will not have significant effects on the environment, and Defendant has presented an ample body of evidence to support its decision. Defendant's determination was neither arbitrary nor capricious, and the Court must therefore defer to Defendant's judgment in the matter.
In evaluating the evidence in support of the MERA claim, the district court owed no deference to DNR's judgment. Rather, the court was to make its own determination whether the evidence, viewed in the light most favorable to appellants, established a prima facie case under MERA.
Viewing the evidence in the light most favorable to appellants, we conclude that appellants established a prima facie case under MERA. Appellants presented expert testimony that snowmobile exhaust emissions contain much greater amounts of carbon monoxide, nitrogen oxides, hydrocarbons, and particulate matter than are present in automobile exhaust. Consequently, the amounts of these substances present on the trail extension will exceed the level at which an air pollution permit would have to be obtained if the trail extension were a highway project.
Considering the first Schaller factor, exhaust emissions at a level that would trigger air pollution permit requirements for a highway project have an obvious adverse effect on air. Considering the second factor, air is present around the entire earth, and in that sense, is not rare, but at any given point on earth, only certain air is present, and in this sense, air is unique. Where air is polluted, there is no other air available to be used. Under the third factor, the expert testimony submitted by appellants indicates that the exhaust emissions will be present for portions of each year the trail is used; snowmobiles will not use the trail year-round. The *739 record does not indicate whether air currents or other processes will restore air quality during other portions of the year. Considering the fourth factor, the expert testimony indicates that exposure to certain pollutants in automobile exhaust presents a cancer risk and suggests that exposure to these pollutants at higher levels in snowmobile exhaust presents a greater cancer risk. Finally, considering the fifth factor, the quantity of air will not change significantly whether the trail extension is constructed or not.
Appellants' expert testimony regarding the effects the trail extension will have on air quality is subject to challenge at a later stage of the proceeding, but at this stage, we conclude that the testimony is sufficiently specific to establish a prima facie case that the trail extension is likely to have a materially adverse effect on the environment. We, therefore, reverse the grant of summary judgment on appellants' MERA claim and remand for further proceedings.
In remanding for further proceedings on the MERA claim, we do not intend to limit the proceedings to consideration of adverse effects the trail extension is likely to have on air quality. The air quality evidence was addressed in detail simply to explain the analysis that is to be applied to evidence of possible adverse environmental effects when determining whether a prima facie case has been presented. We also note that we agree with the district court that much of the evidence presented by appellants is conclusory or speculative, and as such, contributes little to the consideration of the five Schaller factors.
DECISION
DNR's decision not to prepare an EIS was supported by substantial evidence in the record and was not arbitrary and capricious. Evidence submitted by appellants outside the administrative record did not establish a material question of fact regarding whether the DNR clearly failed in its responsibility to prepare an EAW either by avoiding an issue that should have been addressed or by ignoring evidence about an issue that was addressed. Appellants presented a prima facie case that the Northshore trail is likely to have a materially adverse effect on the environment.
Affirmed in part, reversed in part, and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/155647/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 5 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RONALD M. RUSSELL,
Petitioner,
v. No. 97-9501
(Petition for Review)
RAILROAD RETIREMENT BOARD,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, 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
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
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.
Plaintiff filed an application for disability annuity with the Railroad
Retirement Board (Board), alleging disability since October 15, 1992. A Hearing
Officer found that plaintiff was entitled to an occupational disability, because he
could not perform his regular railroad occupation, but deferred a decision on the
application for a period of disability under the Social Security Act and consequent
qualification for early Medicare coverage, pending plaintiff’s decision as to
whether he would appeal the denial of a period of disability. Plaintiff did appeal,
and a Hearing Officer found that plaintiff could perform unskilled light work
available in the national economy and, therefore, that he was not entitled to a
period of disability and early Medicare coverage. Plaintiff appealed that decision
to the Board, and it affirmed and adopted the decision of the Hearing Officer
denying plaintiff’s application for a period of disability under the Social Security
Act.
The affirmance by the Board is a final decision within the meaning of
45 U.S.C. § 355(f), and is therefore appealable to this court under 45 U.S.C.
§ 231g. We review the Board’s decision to determine whether it is supported
by substantial evidence and is free from arbitrary or capricious conduct. See
Gatewood v. Railroad Retirement Bd., 88 F.3d 886, 888 (10th Cir. 1996).
“The findings of the Board as to the facts, if supported by evidence and in the
-2-
absence of fraud, shall be conclusive.” 45 U.S.C. § 355(f). After reviewing the
record in light of these standards, we affirm. 1
Plaintiff complains that he is disabled because of back problems and the
related pain. We agree with the Hearing Officer’s assessment that the plaintiff
retains the capacity to perform light work; the record contains substantial
evidence to that effect. Plaintiff argues that the Hearing Officer erred in not
relying solely on Dr. Sanchez’s opinion that plaintiff was disabled from all work.
The Hearing Officer was entirely within her province to decline to give
Dr. Sanchez’s opinion controlling weight, even though he was a treating
physician, because it was not “well supported by clinical and laboratory
diagnostic techniques” and it is “inconsistent with other substantial evidence in
the record.” Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995) (quotation
omitted). The Hearing Officer carefully considered Dr. Sanchez’s opinion and
the evidence related to it, and she expressed specific and legitimate reasons for
rejecting his opinion. See Hamilton v. Secretary of Health & Human Servs.,
961 F.2d 1495, 1498 (10th Cir. 1992). Our review of the record supports
that decision.
1
We note that, because of the similarity of the Social Security Act and the
Railroad Retirement Act, the same analysis can be applied to appeals from
decisions under both Acts. See Aspros v. Railroad Retirement Bd., 904 F.2d 384,
386 (7th Cir. 1990).
-3-
Plaintiff also argues that the Hearing Officer failed to properly develop the
record. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) (discussing
the ALJ’s duty to develop the record). Specifically, he complains that she did not
allow him to testify at the hearing, interrupting his testimony and substituting her
own testimony through leading questions. We have carefully reviewed the
hearing transcript, and we see no impropriety in the Hearing Officer’s conduct of
or participation in the hearing. She did not breach her duty to develop the record.
Neither do we find merit in plaintiff’s claim that the Hearing Officer failed
to properly consider his subjective complaints of pain. The Hearing Officer
properly considered and analyzed plaintiff’s allegations of disabling pain, see
Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992), and she found
them credible only to the extent that plaintiff could not perform work above the
light level. Her finding was based on plaintiff’s sporadic use of prescription
medications, his intermittent use of over-the-counter pain medications, and his
limited participation in physical therapy. The record contains substantial
evidence supporting the Hearing Officer’s finding regarding plaintiff’s subjective
complaints of pain. Further, because the Hearing Officer credited plaintiff’s
allegations of pain only insofar as they prohibit him from performing work above
the light category, she did not err in relying on the grids in finding plaintiff not
disabled. See Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994).
-4-
In sum, the record contains substantial evidence in support of the Hearing
Officer’s finding that plaintiff retained the residual functional capacity to perform
a wide range of light work. The decision of the Railroad Retirement Board is
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
-5- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1265733/ | 197 Ga. App. 527 (1990)
399 S.E.2d 83
PAYNE
v.
JOYNER et al.
A90A0726.
Court of Appeals of Georgia.
Decided October 26, 1990.
Lokey & Bowden, Peter K. Kintz, K. Scott Graham, for appellant.
Drew, Eckl & Farnham, G. Randall Moody, for appellees.
BEASLEY, Judge.
Payne, who was not wearing a seat belt and was injured upon falling from an open jeep when Joyner swerved to avoid another vehicle at an intersection, appeals the denial of her motion for new trial.
Viewed in favor of the verdict, the evidence showed the following. The accident occurred on May 26, 1985 near midnight. Payne consumed four beers between 9:30 and 10:30 p. m. while at a local restaurant with four friends. She then drove her friend's car to another restaurant because she believed the friend too inebriated to safely drive. Payne wore her seat belt. Payne called Joyner, with whom she had a date that evening. Joyner came to pick her up in his jeep, in which she had ridden before and used the seat belts. The jeep had the roof and doors off and Joyner was wearing his seat belt. He did not mention to Payne that she should engage hers.
As they approached the intersection, the traffic light turned yellow. Believing he could not safely stop, Joyner went through the intersection and swerved to miss a vehicle approaching from the passenger side. Payne fell out of the vehicle and was injured when she hit the pavement. No contact was made between the vehicles. When Joyner was asked to get Payne's identification, he discovered in her purse a pint of Seagrams, which he threw into a ditch. When the paramedics arrived, she told them "I don't need help, get me some Seagrams." Her blood alcohol level measured .10 approximately 45 minutes later.
1. Prior to trial, Payne filed a motion in limine to prohibit testimony or evidence regarding the fact that she was not wearing a seat belt. The second enumeration assigns error in its denial and subsequent denial of a new trial on this ground. The motion was premised solely on the theory that OCGA § 40-8-76.1 (d) is to be given retroactive effect to the 1985 incident. The effective date of the statute was September 1, 1988.
OCGA § 40-8-76.1 (b) mandates that each occupant of the front seat of a vehicle "shall . . . be restrained by a seat safety belt . . ." while the vehicle is moving on a public street. Subsection (d) states that "[f]ailure to wear a seat safety belt in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, . . . and shall not diminish any recovery for damages arising out of the . . . occupancy, or operation of a passenger vehicle."
*528 Although the amended motion for new trial contends that the motion in limine was erroneously amended because 1987 case law[1] allowing seat belt evidence should be applied only prospectively and not in the 1985 calamity, there was no mention of that argument in the motion in limine or during trial and it could not be a basis for new trial. OCGA § 5-5-22; Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 309 (7) (187 SE2d 915) (1972); Georgia Power Co. v. Hendricks, 97 Ga. App. 369, 370 (1) (103 SE2d 601) (1958).
As to the argument based on the statute, the seat belt law is a prospective statute only, applying to incidents on or after September 1, 1988. Bales v. Shelton, 197 Ga. App. 522, 524 (3) (a) (399 SE2d 78) (1990). See Jones v. Scarborough, 194 Ga. App. 468 (1) (a) (390 SE2d 674) (1990); Boatwright v. Czerepinski, 194 Ga. App. 697 (2) (391 SE2d 685) (1990) (accident 1987; trial December 1988).
At the time of trial in 1989, evidence of failure to use a seat belt was admissible on the question of damages if there was evidence that the injuries could have been reduced by use of a seat belt, which was shown here. Bales, supra; Boatwright, supra; Katz v. White, 190 Ga. App. 458 (379 SE2d 186) (1989); Sapp v. Johnson, 184 Ga. App. 603, 606 (3) (362 SE2d 82) (1987).
There was no error in the denial of the motion in limine.
2. Defendant also urges error in the trial court's charge on contributory negligence. Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). Objection was that the principle did not apply to the case.
The charge was from Vol. 1 Suggested Pattern Jury Instructions p. 291. It was followed by a charge on comparative negligence which Payne acknowledged was appropriate.
The discussion of contributory negligence at trial and in the brief centers on the seat belt issue. The charge, however, contained no reference to seat belts but addressed the concept generally. Evidence unrelated to the seat belt issue justified the charge. Payne's consumption of alcohol, resulting in a blood alcohol level of .10 forty-five minutes after the fall, could have affected her equilibrium enough to have caused her fall and merited the instruction. Vogt v. Rice, 114 Ga. App. 251 (1) (150 SE2d 691) (1966); see Lawrence v. Edwards, 128 Ga. App. 1, 2 (3) (195 SE2d 244) (1973). We need not address whether, absent this evidence, the charge was appropriate solely on the seat belt evidence as the charge related to liability instead of damages. Reese v. Lyons, 193 Ga. App. 548 (4) (388 SE2d 369) (1989); Cannon v. Lardner, 185 Ga. App. 194, 195 (363 SE2d 574) (1987); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 *529 SE2d 352) (1986) (physical precedent).
Denial of the motion for new trial was not error.
Judgment affirmed. Deen, P. J., and Pope, J., concur.
NOTES
[1] Cullen v. Timm, 184 Ga. App. 80 (360 SE2d 745) (1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1053381/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 10, 2007
RUDELL FUNZIE v. STATE OF TENNESSEE
Appeal from the Circuit Court for Lake County
No. 05-CR-8737 R. Lee Moore, Jr., Judge
No. W2006-00174-CCA-R3-HC - Filed July 9, 2007
The petitioner appeals the denial of habeas corpus relief by the Lake County Circuit Court from his
imprisonment for three 1982 armed robbery convictions. On appeal, the petitioner claims that he
was sentenced to serve concurrent twenty-five year sentences at thirty-five percent and that because
he has served that percentage of the sentences, his sentences have expired. We hold that the trial
court properly dismissed the petition and affirm its judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN , JJ., joined.
Jim W. Horner, District Public Defender, and Patrick R. McGill, Assistant Public Defender, for the
appellant, Rudell Funzie.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
OPINION
According to allegations of the petition, the petitioner was sentenced on October 6, 1982, to
three concurrent twenty-five year sentences. The petitioner alleged that his sentences expired in
2001 and that he was being illegally restrained in the Department of Correction.
At the hearing on the petition, the state presented the testimony of Carla Hopper, a record
clerk with the Department of Correction.1 She testified that the petitioner was released on parole on
December 9, 1991, that he absconded from parole on March 6, 1995, that a violation warrant issued
on September 14, 2004, and that his parole was revoked on October 8, 2004. She said that “[t]he
1
Ms. Hopper was not identified on the record at the hearing other than as “the lady from the prison,” although
a subpoena in the technical record identifies her as a record clerk with the Department of Correction.
Board of Paroles added a delinquent time back to his sentence.” She said his sentence expiration
date was June 18, 2013.
The petitioner testified at the hearing. He claimed that various sentencing credits operated
to reduce his sentence and that before he was paroled in 1991, he had already served his sentences
in their entirety. He referred to various documents, which were introduced as exhibits at the hearing.
The trial court denied relief, determining that the petitioner’s claim related to sentencing credits and
not expiration of his sentences.
In this state, “[a]ny person imprisoned or restrained of his liberty, under any pretense
whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment and restraint.” T.C.A. § 29-21-101; Church v. State,
987 S.W.2d 855, 857 (Tenn. Crim. App. 1998). The purpose of a habeas corpus petition is to
contest void and not merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993)
(citing State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968)). Habeas
corpus relief is available only when it appears on the face of the judgment or the record that the trial
court was without jurisdiction to convict or sentence the defendant or that his sentence has expired.
Archer, 851 S.W.2d at 164. The burden is on the petitioner to establish that the judgment is void or
that the sentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290,
291-92 (1964).
In the trial court, the petitioner claimed that various calculations and reductions resulted in
his having already served his sentences. On appeal, he asserts that he has served the required thirty-
five percent of his twenty-five year sentences, which he argues equates to expired sentences. The
petitioner’s appellate position is contrary to the law. A defendant has no right to the privilege of
parole. See T.C.A. §§ 40-28-117(a); 40-35-503(b). The authority to grant parole is vested
exclusively in the board of probation and parole, and the granting of parole is a discretionary matter.
Doyle v. Hampton, 207 Tenn. 399, 403, 340 S.W.2d 891, 893 (1960). Further, a prisoner does not
have an absolute right to be released on parole when he has served the minimum term for his
conviction. State ex rel. Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839, 840-41 (1969).
As this court has often recognized, a habeas corpus action is not the proper means by which
to challenge the denial of prison privileges and related internal prison matters that have no bearing
on the validity of the restraining conviction, the resulting sentence, or the expiration of the sentence.
See, e.g., State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986). Issues relative to the
Department of Correction’s calculation of sentencing credits and parole dates are handled through
the Administrative Procedures Act. See T.C.A. §§ 4-5-101 to -325; Brigham v. Lack, 755 S.W.2d
469, 471 (Tenn. Crim. App. 1988). As such, the trial court properly dismissed the petition.
In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.
___________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
-2- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3996480/ | About 1910, Daniel Salwt appeared in Seattle as the prophet of a new religious cult designated by him as the "Seventh Elect Church in Israel." He claimed to be a messenger from God, commanded to gather together 144,000 persons to be known as the "Elect of God." His teachings were that the cult would grow and prosper until it reached a membership of 144,000 of the Elect of God, and then the entire membership would be translated into heaven without physical death. He made little or no progress during the first eight or ten years, but in 1921 he had gathered together eight members and sufficient funds to build a church. Living quarters were provided for in connection with the church.
From 1921 to June 14, 1929, the date of Salwt's death, the number of his followers varied somewhat, but on the average the church had a membership of twenty-five persons. The members were principally day laborers, such as shingle weavers, plasterers and mechanics, earning from three to five dollars a day. Those who lived at the church were required to lay all their earthly goods upon the altar in the nature of free will offerings. They lived in common and had one pocket-book. Salwt, as well as the other members or disciples, would preach or exhort upon the public streets of Seattle, and distribute literature or "religious tracts" setting forth the teachings and doctrines of the church.
Salwt and his adherents banded themselves together as a voluntary association until 1922, when they organized a corporation. Salwt became its president and treasurer, and remained its leader until his death, *Page 475
at which time there was on deposit in his name in two banks at Seattle, money in excess of $103,000. In addition thereto, several pieces of real estate situated within the state of Washington stood in his name.
The First Seattle Dexter Horton National Bank was appointed and qualified as administrator of his estate, and filed an inventory as required by law. Claims were filed by the appellants with the administrator, which the latter rejected.
February, 1930, the respondent instituted this action, and in its complaint alleged that Salwt had received the real estate and the money on deposit in the two banks for the use and benefit of the church and its members, and that all of the property and money was held by the decedent in trust for the church; that the appellants' claims were spurious and false; that the decedent, Salwt, was not indebted to the appellants or any of them, and the respondent church undertook to impress a trust upon these funds in its favor. The appellants, in their answer, denied all the material allegations of the complaint, and by way of cross-complaint prayed that these same funds be impressed with a trust in their favor. The cross-complaint sets forth the respective claims of the several appellants to the funds under the control of the administrator.
The administrator interposed a demurrer to appellants' cross-complaint, which was sustained by the trial court. The appellants declined to plead further and appealed to this court. The judgment of the lower court was reversed, and the cause remanded for trial. Seventh Elect Church in Israel v. FirstSeattle etc. Bank, 162 Wn. 437, 299 P. 359. The opinion there should be read in connection with the opinion here.
On July, 1931, the cause proceeded to trial upon the merits, and resulted in a decree whereby all of the property, both real and personal, in the hands of the *Page 476
administrator, except the cost of administration, was given to the church, and the appellants' causes of action were dismissed, from which decree they have appealed.
The appellants contend that, since this court, in the case ofSeventh Elect Church in Israel v. First Seattle etc. Bank,supra, overruled the demurrer of the administrator to the appellants' cross-complaint, thereby holding that the cross-complaint stated facts sufficient to constitute a cause of action, the judgment or decree appealed from must be reversed, because, as they contend, the evidence is sufficient to sustain the allegations of the cross-complaint.
Parenthetically, it should be pointed out that the former appeal was between the administrator and these appellants, whereas the controversy on this appeal is between the church
and the appellants.
The controlling question, then, is whether the evidence is sufficient to sustain the allegations of the appellants' cross-complaint. The material allegations in each of the several causes of action in the cross-complaint are:
"That the said decedent was the organizer and head of a certain religious cult known as the Seventh Elect Church in Israel; that he called himself and was known as the `Messenger' and taught that those who followed him would never die and that he would lead them into heaven without going through the physical destruction of the body called death; . . . that the decedent had established the rule for his followers that while belonging to the cult they must leave with him for safekeeping all they ownedof money and property and all they earned; that the deposits somade were to be kept by the decedent for the depositor's account,the ownership thereof always remaining in the depositor." (Italics ours.) *Page 477
Each of the appellants further alleged that they became disciples of Salwt because they believed in him and in his teachings.
[1] From our review of the record, we are of the opinion that the evidence does not support the allegations of the cross-complaint, and especially the material portions thereof which we have italicized. The moneys and property contributed and conveyed by the several appellants were not given to Salwt forsafekeeping, but were given to him as free will offerings, for the use and benefit of the church, without reservation and for the purpose of aiding the church in spreading the gospel and the doctrines believed in and taught by all of the appellants as well as by all of the members of the church.
Furthermore, the evidence is clear that Salwt did not claim the money nor property as his own. He dealt with it as though it belonged to the church. Salwt did not personally profit from the free will offerings. He lived a lowly life, as did the rest of the disciples of the church. They preached upon the streets of Seattle, in weather bad or fair; a fervent and devoted religious sect, seeking not earthly reward but preparing themselves for a broader and nobler life.
But as time went on, the appellants became lukewarm, and from January, 1926, to October, 1928, one by one they withdrew from the church. These withdrawals all occurred prior to the death of Salwt. The appellants brought no independent action to recover the moneys and properties they had contributed, nor to recover for the value of the services rendered by them, but filed their cross-complaint after this action had been instituted by the church. From two to five years elapsed from the time the various members withdrew up to the time this action was brought. The appellants, having withdrawn and seceded from the *Page 478
church, now seek to recover their contributions, whether in money or property, and seek compensation for services rendered.
[2] The law is well settled that, where members of a church withdraw or secede, either singly or in a body, they forfeit all their rights to the church property. They cannot recover that which they voluntarily turned over to the church.
"`The separation or secession of part of the members from a church does not destroy the identity of the church or lessen the rights of those adhering to the organization, but members seceding from a church thereby forfeit all rights to the church property, and the courts, when called upon, will award the property, and all rights pertaining thereto, to those who continue to adhere to the doctrine, tenets, and rules of the church as they existed before the division, . . .' 34 Cyc. 1167.
"Lost River Norwegian Evangelical Congregation v. Thoen,149 Minn. 379, 183 N.W. 954; Apostolic Holiness Union of Post Fallsv. Knudson, 21 Idaho 589, 123 P. 473; Slinker v. SumnerCounty Building Loan Ass'n, 96 Kan. 672, 153 P. 537;Christian Church of Vacaville v. Crystal, 78 Cal.App. 1,247 P. 605." Saints of Spokane v. Bailey, 153 Wn. 294,279 P. 750.
The rule is well stated in Borgman v. Bultema, 213 Mich. 684,182 N.W. 91:
"Under our well established rules of law, acquiesced in by all our courts, and which, as I understand it, no one disputes, where property is dedicated to the use of a religious denomination it cannot thereafter be diverted to the use of those who depart from that faith, but must remain for the use and benefit of those who still adhere to the faith. It is conceded that the property in question in this case has been dedicated to the use of those who adhere to the faith of the Christian Reformed Church, and that it must there remain, and should it appear that any have departed from that *Page 479
faith they cannot claim the right to take the property with them."
[3] All of the appellants, except two, executed a "free will offering contract," dated April 5, 1926. This contract reads:
"April 5, 1926.
"FREE WILL OFFERING CONTRACT
"It is hereby stipulated and agreed by and between Daniel Salwt, the president and treasurer of the Elect Church in Spiritual Israel, of the second part, and all who undersign are and are known as the party of the first part: Whereas the party of the first part does covenant and agree with the party of the second part that in consideration of a home with the party of the second part does assign all his possessions over to the party of the second part, mortgages, bonds, lands, houses and lots, moneys and other securities that have any value and is accepted by the party of the second part. It is further agreed by first and second parties that the party of the first part can walk out of the association at his or her will but there is no redemption of property of any description whatsoever. The party of the second part at his own option help the party of the first part with the consent of the trustees, not otherwise. It is hereby understood that this benevolent society take up no collections in the church or out of it, but is strictly living on free will offerings only. All who subscribe their names to this contract become a member of this Elect Church and agrees to live in common as the apostles of old who sacrificed all: Neither are we allowed to have more than one pocketbook; Neither are we allowed to eat off of the mountains. It is further agreed all who sign this contract will do his best to support the church and to gather the Elect of God and do all he can to become of one mind and sling no slurs or insults or be offensive in any way. It is further agreed by first and second parties they will not conspire between themselves to withhold money of any amount: Any person found guilty of misdemeanor of this kind forfeits his right to the home and is expelled from the parsonage or home after a fair trial, and he sacrifices all he gave as a free *Page 480
offering to the Elect Church; this includes both male and female. Know all men by these presents: all who sign this contract sign it with their own free will, not being overpersuaded by anybody, but do it for the benefit of The Association in which they belong."
It is apparent that this free will offering contract was simply an embodiment of the teaching and understanding of all the members of the church. The appellants in their brief say:
"A reading of the free will offering contract will disclose that it is not more than a reduction to writing of the teachings and rules theretofore and thereafter taught and governing the members."
Under the terms of this contract, the appellants were privileged to secede and sever their connection with the church, but, doing so, they forfeited all right to their free will offerings, which became the property of the church.
True, Salwt told his followers he would never die, that he would lead them into heaven in the flesh. But these were not statements of fact. They were mere expressions of opinion, prophesies of a religious belief. Sacred Writ tells us that Elijah and Enoch were translated into heaven without death.
[4] It is the law that courts will not interfere with the liberty of conscience, and with the rights of every individual to select his own religious beliefs, so long as they are not against the peace and good order of society.
"The law is not the keeper of a man's conscience, and it is not within the province of any department of the government to settle differences in creeds, or to determine what ought or ought not to be a fundamental of religious belief, so long as the professed creed is not subversive of the peace and good order of society. It is the proud boast of our institutions that all opinions are tolerated, and entire freedom of action allowed, *Page 481
unless such interferes in some way with the rights of others. The liberty of conscience is secured by the provisions of our constitution, circumscribed only by the limitation that such liberty shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state." Ruse v. Williams, 14 Ariz. 445,130 P. 887, 45 L.R.A. (N.S.) 923.
The appellants having voluntarily contributed their money and property, they are estopped from recovering the same. Nor can they recover for services rendered. Ruse v. Williams, supra;Ellis v. Newbrough, 6 New Mex. 181, 27 P. 490.
The judgment appealed from is affirmed.
TOLMAN, C.J., HERMAN, PARKER, and MITCHELL, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3868771/ | The plaintiff obtained a judgment against the defendant in the District Court of the Seventh Judicial District. Thereupon the defendant's attorney, within the time prescribed by statute, filed an appeal bond, executed by himself in the name of the defendant, and paid the plaintiff's costs. Subsequently he filed the defendant's reasons of appeal at the next term of the Court of Common Pleas. Before the beginning of the term, the defendant also filed in the Court of Common Pleas a power of attorney, under seal, bearing date prior to the date of the appeal bond, authorizing his attorney to execute an appeal bond and do all things necessary to perfect an appeal, and ratifying all that had been done in the premises, but this power was not in fact executed until after the time prescribed by statute for taking an appeal had elapsed. The plaintiff, on this state of facts, moved the Court of Common Pleas to dismiss the appeal because the attorney had no authority under seal to execute the bond, and the power of attorney ratifying its execution was not given until after the time for taking the appeal had expired. The court granted the motion, and the defendant excepted.
In Murray Allen v. Peckam, 15 R.I. 297, it was held that an attorney, under a general authority to prosecute and defend suits for his client, has no authority to execute an appeal bond in his client's name, the rule being that power to execute a sealed instrument *Page 780
must itself be under seal. The plaintiff contends that the appeal bond was, therefore, void when it was filed, and that, as the power of attorney ratifying it, though dated before, was not in fact executed until long after the time for taking an appeal had passed, his judgment was not vacated thereby, and his right to the judgment became vested at the expiration of the period limited for taking an appeal. The argument is plausible, but we do not think it can be sustained. It rests upon the assumption that the bond, when filed, was not merely voidable, but absolutely void. We think that this is a mistake. The question was before the Supreme Judicial Court of New Hampshire inHaydock v. Duncan, 40 N.H. 45, cited by the defendant, in which it was held that such a bond was not void, but at most voidable; that the appellant might confirm and ratify it, and would then be estopped to deny that it was legally executed at its date, and valid and binding upon him from the beginning; that the adverse party might not object to it, or might admit the authority; and that, if the appeal should be prosecuted, the court would not permit the appellant or his sureties afterward to deny the authority of the attorney to execute it, and therefore if, before objection was made, the bond should be ratified, the objection would be avoided, since the bond would then be sufficient.
That such a bond is not void, but only voidable, was evidently the view taken by this court in Clarke Wife v.Mayor and Aldermen of Newport, 5 R.I. 333, in which the appeal bond was defective in the same respect as the present, and in which the court held that a motion to dismiss the appeal on the ground of defects in the appeal bond came too late when made in the Appellate Court after the appeal had been entered and twice continued. Had the bond been absolutely void, instead of merely voidable, there would have been no appeal, and the Appellate Court would have had no jurisdiction over the proceeding.
Our attention has been called to the language of the court inAndrews v. Beane, 15 R.I. 451. It is true the court in that case speaks of a bond, executed as the present is, as void and as a nullity, and assumes in argument that an appeal, when such a bond has been filed, is fatally defective. These expressions are to be taken, however, in the connection in which they are used. The question before the court was the constitutionality of a statute, the *Page 781
purpose of which was to validate, without the consent of the obligors, appeal bonds in appeals from judgments of justice courts theretofore signed by the attorney or agent of a party appellant for such appellant, the court assuming that the bonds intended to be validated by the statute included such a bond as the one then in suit, which was executed in the same manner as the one now under consideration. There was no question before the court as to whether a bond so executed could or could not be ratified by the client or principal of the attorney or agent, or as to what the effect of such ratification would be if made. The court was speaking of a bond not ratified, and which the statute was intended to validate, independently of the sanction of the obligor named therein. Such a bond the court might well say was void or a nullity, in the sense that it was not valid or binding on the obligor, without intending thereby that it was void or a nullity in the sense that it was incapable of ratification.
Exception sustained, and case remitted to the Court ofCommon Pleas for a new trial. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3868772/ | This is assumpsit for goods sold and delivered to, work and labor done and performed for, and cash advanced to John M. Cargill, defendants' testator in his lifetime. Pleas, the general issue and the statute of, limitations.
At the trial of the case in the Court of Common Pleas, at the December Term thereof, 1892, the plaintiff recovered a verdict for $2,474.44. The defendants now petition for a new trial on the grounds of erroneous rulings on the part of the Court, and that the verdict was against the evidence. *Page 304
The first contention of the defendants is, that there was no competent proof offered of the delivery of the goods charged to defendants' testator, or of the performance of the work and labor charged to him, the plaintiff having been wrongfully permitted to testify in the case as to the identity of his books.
We think the books of account produced by the plaintiff, supplemented by his oath, and identified by him and also by his clerk, Middleton, as being his regular books of original entries, were competent evidence to go to the jury of the sale and delivery of the goods, and the performance of the services charged therein, and also of the prices charged therefor.Hagaman v. Case, 4 N.J. Law, 370; Ducoign v. Schreppel, 1 Yeates, Pa. 347; 2 Amer. Eng. Encyc. Law, 467, 468, and cases cited. We also think it was competent for the plaintiff to testify to the identity of said books of account notwithstanding the other party to the cause of action was dead, this being a case in which he could have been a witness for this purpose at the common law, and hence within the exception of Pub. Stat. R.I. cap. 214, § 33; 1 Greenleaf on Evidence, 13th ed. §§ 118, 119, and notes; Wood's Practice Evidence, § 143-145, and cases cited;Dexter v. Booth, 2 Allen, 559; Green v. Gould, 3 Allen, 465. The plaintiff's case was strengthened also, by evidence that the defendants' testator, in his lifetime had full access to said books of account, and himself, made a number of the entries, both on the debit and credit sides of the account in question.
The second contention of the defendants is that the items charged as cash in said account should not have been allowed, as they were not proper subjects of book account. It is doubtless true that cash loaned or advanced is not ordinarily the proper subject of book account, except at any rate, to a very limited amount; Burns v. Fay, 14 Pick. 8; Kelton v. Hill, 58 Me. 114; Bassett v. Spofford, 11 N.H. 167; yet, where in the ordinary course of business between the parties, cash advances as well as payments are made the subject of book account, we see no reason for holding that such items may not as well be entered on and proved by the books as the ordinary *Page 305
items of account may be. That is to say, where the parties are in the habit of treating cash items, both on the debit and credit side of the account between them, as the proper subject of such account, the proof of the loan or advancement of money on the one side, or of the payment on account, of the same on the other, may be made by the production of the books, to the same extent as may the proof of the delivery of any other article. Wood's Practice Evidence, § 144. Under the proof in this case we think it was properly left to the jury to determine whether or not the cash items were proper subjects of book account. The presiding Justice instructed the jury very clearly as to the law applicable to such transactions, and left it for them to find whether or not the course of dealing between the parties was such that cash items might properly be made the subject of book account.
The bill of particulars filed in the case shows charges under the date of July 31, 1878, as follows:
"Stock and labor to May, 1876 ............................. $159 01 " " April, 1877 ........................... 57 85 Cottage at Vineyard, Mch. 6, 1876 ......................... 300 00 Furniture " " " ............................ 100 00 Shop on High St., 270 ..................................... 225 00 _______ Making a total of ......................................... $841 86
This amount the defendants contend should not have been allowed by the jury, there being no proof in support of the items except the said books; that the lumping of the accounts rendered them inadmissible as book accounts and that they are not proper subjects of such an account. We think the defendants' contention as to the first two of these items at any rate is correct. The charges do not appear at the beginning of the account as a balance brought forward from a previous account, as the dates would seem to indicate they might have been, but on the second page thereof, and each as having been made on July 31, 1878. There was no proof as to how these two items of $159.01 and $57.85 were made up, as to whether they ever appeared on any other account, or when they were in fact furnished, except that the first was *Page 306
prior to May, 1876 and the second prior to April, 1877, both antedating the first entry in the very extended book account sued on. Nor was there any proof that these entries were made in accordance with the usual course of business between the parties. On the other hand they are merely lump charges, evidently madeout of the ordinary course of business, and interjected into an account with which it does not appear that they have any connection. Rice on Evidence, 830; and cases cited; Lynch v.Petrie, 1 Nott McCord, 130.
The court below evidently took the same view of the law, as the jury were expressly instructed "that the account should be itemized, and that lumping the accounts renders the entry inadmissible, and not a subject of book charge." The jury, however, must have disregarded said instruction, as they found a verdict for the full amount of the plaintiff's claim.
As to the other three items objected to, viz.:
"Cottage at Vineyard, Mch. 6, 1876 ............... $300 00" "Furniture " " " ................. 100 00" "Shop on High St., 270 ........................... 225 00"
as there was evidence outside of the books that this property was transferred by the plaintiff to his father by mutual agreement, we think it was properly left to the jury to determine whether these charges were proven.
We do not think it was error on the part of the court below to rule that if there were mutual accounts between the parties, including items of debit and credit on each side, made within six years next before the commencement of the action, that no part of the account was barred by the statute of limitations. The books offered in evidence showed that there were mutual accounts between Charles Cargill and his father John M. Cargill, including items of debit and credit on each side, made by said John M. Cargill himself within six years of the date of the writ.
The law of mutual accounts is distinct from that of merchants' accounts, and is to the effect that in cases of mutual dealings between the parties no obligation is created in regard to each particular item but only for the balance, and it *Page 307
is the constantly varying balance which is the debt. Such a state of facts implies that the parties have mutually consented that each item, in whosesoever favor it may be, shall not constitute an independent debt due immediately, to be paid or enforced at once, but that the items occurring from time to time in favor of the respective parties shall operate as mutual set-offs, and that the shifting balance, when either or both shall call for it, shall be the debt. This is the reason why the statute of limitations does not apply during such a state of mutual dealings. Abbott v. Keith, 11 Vt. 525.
When men deal with an express or implied agreement that what each sells or delivers shall, instead of giving rise to a demand payable at once, stand as a payment, or set-off for what has been or may be received from the other, their liability will be limited to, and depend upon the balance as finally disclosed, and the statute will not begin to run, until the date of the last item. For an elaborate discussion of this question, see Gunn v.Gunn, 74 Ga. 555, and cases cited: 13 Amer. Eng. Encyc. Law, 765, 766.
The last ground of the defendants' petition for a new trial is that the court below refused to allow them to offer evidence that the goods, labor and cash charged against said John M. Cargill, were so charged upon a consideration previously executed by him, and not for the purpose of creating any indebtedness against him, but on the other hand to pay an indebtedness previously contracted by the plaintiff to him. In other words, as we understand it, the defendants offered to prove that said John M. Cargill and the plaintiff entered into an agreement, whereby the latter, in consideration of the conveyance to him by the former of a certain store and stock of goods therein, was to pay for the same in goods, labor and cash, the same to be credited to him from time to time as furnished, on account of said transaction, until the aggregate of such credits should balance his indebtedness to the former; and the defendants offered to show that the items which appear in the plaintiff's account as charges against said John M. Cargill were simply payments on account *Page 308
of the transaction aforesaid, and did not therefore, create any indebtedness against him.
We think it was error not to allow the defendants to offer proof that such was the agreement and understanding of the parties. The general issue in assumpsit puts the plaintiff upon proving his whole case, and entitles the defendant, without special notice, to give evidence of anything which shows that the plaintiff ought not to recover. 1 Wait, Actions Defences, 396, and cases cited; 2 Greenleaf on Evidence; 13 ed. § 135;Falconer v. Smith, 18 Pa. St. 130. If the agreement between the parties was in fact such as the defendants offered to prove, then the sale and delivery of the goods charged to John M. Cargill, as well as the performance of the labor, and the payments of cash charged to him, were simply by way of performance of the said agreement on the part of the plaintiff, and did not have the effect to create a debt against said John, but simply to pay a debt which the plaintiff owed him. The defendants were attempting to show that said goods, c., were in fact paid for in advance by the said John M. Cargill; that they "were furnished upon an executed consideration in pursuance of an antecedent duty, and that there never was a debt due for them for a single instant." Starratt v. Mullen, 148 Mass. 570, 697. In other words, if the agreement was as claimed by the defendants, no cause of action accrued to the plaintiff by reason of the sale and delivery to John M. Cargill of the goods charged, the work and labor done, or the cash paid, until, at any rate the aggregate value thereof exceeded the plaintiff's indebtedness to him. For, up to that time, each item of the plaintiff's bill was simply a payment on account of his indebtedness to said John M. Cargill, and hence could not be made the basis of a suit against him. Phipps v. Mahon, 141 Mass. 471; Green v. Brown, 3 Barb. S.C. 119.
The position taken by the plaintiff regarding the defendants' claim, viz., that it should have been interposed as a defence by way of set-off, to the plaintiff's account, is untenable, for the reason that, accepting the defendant's contention as true, which, for the purposes of this petition we are bound *Page 309
to do, there was nothing to be set-off, the plaintiff's indebtedness to the defendants' intestate, having been paid in the manner aforesaid. That is, according to the defendants' claim, there was no mutual account between the parties.
For the errors specified, there must be a new trial.
Petition granted. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/697822/ | 57 F.3d 1063
U.S.v.One 1987 Suzuki Samuri
NO. 93-6311
United States Court of Appeals,Second Circuit.
May 11, 1995
Appeal From: N.D.N.Y.92-cv-604
1
AFFIRMED. | 01-03-2023 | 04-17-2012 |
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