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https://www.courtlistener.com/api/rest/v3/opinions/1509459/	123 F. Supp. 109 (1954) TILBURY v. ROGERS, Regional Director, U. S. Department of Labor, et al. MITCHELL, Secretary of Labor, U. S. Department of Labor v. TILBURY (two cases). Civ. Nos. 4004, 4040, 4052. United States District Court, W. D. Louisiana, Shreveport Division. August 4, 1954. 110 111 Robert G. Chandler, Shreveport, La., for M. A. Tilbury. Stuart Rothman, Washington, D. C., Earl Street, T. Hagan Allin, Dallas, Tex., for James P. Mitchell, Secretary of Labor. Frederick J. Stewart, Shreveport, La., for William A. Self and Jimmie Simmons. DAWKINS, Jr., Chief Judge. Almost in point here is Newton's third law of physics which holds that for every action there is an equal and opposite reaction. Launched with some sureness against several adversaries, an action for a Declaratory Judgment has brought forth a multipronged counterattack: Asking that we declare his business and the work of a number of his employees not subject to the Fair Labor Standards Act,[1] M. A. Tilbury, d/b/a Tilbury's Southern Meat Compoany, in C.A. No. 4004 impleaded twelve of his employees, as well as the Local and Regional Directors of the Wage-Hour and Public Contracts Division of the Department of Labor. By consent these officials were dismissed from the suit as improper parties defendant.[2] Two of the employee-defendants counterclaimed[3] for overtime pay, penalties and attorney's fees. But Pandora's box still was not empty: In C.A. No. 4040, the Secretary of Labor sued Tilbury for a permanent injunction against further alleged violations of the Act; and in C.A. No. 4052, he claimed substantial overtime payments said to be due to four of the Tilbury employees who were impleaded in C.A. No. 4004. The remaining six employees have not appeared or made claims. Inasmuch as the facts are equally applicable to all three actions, they were consolidated for trial and decision, with separate judgments, of course, to be rendered in each case. Since Tilbury is the named defendant in two of the three actions, and a defendant in counterclaims in the third, we shall refer to him, for convenience, as defendant. He paid his employees straight weekly wages well above the minimum required by the Act. Admittedly, however, he did not compensate them for overtime, and until February 4th, 1953, did not keep proper records, believing that the Act was inapplicable to his operations. Since then he has complied with it fully in all respects, except it is contended he has not done so in connection with certain "incentive" payments, discussed infra. The primary, the basic questions for resolution are whether 1) these employees were "engaged in commerce" or 2) in "production of goods for commerce," so as to come within the purview of the Act. 29 U.S.C.A. § 202. If either question is answered in the affirmative, the Act is applicable. Defendant's business is wholesale distribution, entirely intrastate, of meat, meat products and by-products. His customers are restaurants, hotels and similar establishments, which order special cuts or types of meat that are prepared by his employees. Regularly each week he receives large shipments of these commodities from points outside Louisiana. A relatively small percentage of these 112 (less than 4%) come directly to his place of business. Most come from packing plants in Shreveport. All such shipments, however, are delivered, unloaded and placed upon the floor of defendant's storage room by employees of the packers. There is a dispute as to whether the shipments regularly are checked in and placed on shelves or hooks in the storage room by the butchers and boners for whom and by whom claims for overtime are here asserted, or whether this is done by the shop foreman or manager. We have concluded that it is the latter, not the former, whose duty it is and who regularly perform these tasks. Although two of the employee-claimants, McBride and Dyess, testified that they spend about two hours each week at such work (and it was stipulated that two others would testify likewise), we prefer to believe the testimony of Mr. Blalock, the shop foreman, to the effect that the butchers and boners are called upon to do this only on rare occasions, when both he and Mr. Johnson, the manager, are absent. He, unlike the claimants, has no direct interest in this litigation. His version is far more logical and likely businesswise than is theirs. We cannot say, therefore, that any substantial amount of work time was spent by the butchers and boners in checking or handling incoming shipments of meats. This must be shown before their work or wage payments become subject to the Act.[4] It is the nature and extent of their duties in this respect, not the character of defendant's business, which is controlling.[5] Furthermore, it is our opinion that the shipments had completed their interstate journey when they came to rest on defendant's storage room floor, having been placed there by the packers' employees. Accordingly, we hold that no proper basis has been established for application of the Act with regard to this type of work. There are other facts, however, which bring the duties and wages of these employees under the Act: Regularly and necessarily in the course of their employment, while preparing meats and meat cuts for defendant's customers, his butchers and boners handle or otherwise work upon bones and other inedibles which are a part of the meats bought by defendant from the packers.[6] Defendant regularly sells these, and they go directly or indirectly into interstate commerce in various forms such as animal food, etc. The parties have stipulated that defendant knew, or had reason to believe, these by-products would be shipped extra-state. Even without the stipulation, if defendant knew or had "reasonable grounds to anticipate" and we think he did that these inedibles would move into commerce, the Act would be applicable.[7] This part of defendant's business, it is true, constitutes only .216 of 1% of his total dollar volume of sales, and 8.45% of the total tonnage of meat products 113 sold. But that is not the governing factor, for the Supreme Court has held that the rule of "de minimis" has no application to cases of this kind. "The Appellate Division applied the maxim de minimis to exclude respondent from the provisions of the Act. We think that was error. The Court indicated in National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 59 S. Ct. 668, 672, 83 L. Ed. 1014, that the operation of the National Labor Relations Act (49 Stat. 449, 29 U.S.C. § 151, 29 U.S. C.A. § 151) was not dependent on `any particular volume of commerce affected more than that to which courts would apply the maxim de minimis.' That Act, unlike the present one (Walling v. Jacksonville Paper Co., 317 U.S. 564, 570, 571, 63 S. Ct. 332, 336, 87 L. Ed. 460), regulates labor disputes `affecting' commerce. 49 Stat. 450, 29 U.S.C. § 152, 29 U.S.C.A. § 152. We need not stop to consider what different scope, if any, the maxim de minimis might have in cases arising thereunder. Here, Congress had made no distinction on the basis of volume of business. By § 15(a) (1) 29 U.S. C.A. § 215(a) (1) it has made unlawful the shipment in commerce of `any goods in the production of which any employee was employed in violation of' the overtime and minimum wage requirements of the Act. Though we assume that sporadic or occasional shipments of insubstantial amounts of goods were not intended to be included in that prohibition, there is no warrant for assuming that regular shipments in commerce are to be included or excluded dependent on their size. * * " Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S. Ct. 511, 512, 90 L. Ed. 607. In that case the White Plains Publishing Company regularly sent extrastate only one-half of 1% of its newspapers. We thoroughly disagree with this holding and believe Justice Murphy's dissent is correct, but we are bound to follow the interpretation of Congressional intent reached in the majority opinion. Since practically all of the working time of defendant's butchers and boners is indirectly involved in the production of bones and other inedibles this being "production of goods for commerce"while they simultaneously and directly are preparing meat cuts for defendant's customers, we have no alternative but to hold that the work of these employees "in commerce" is "substantial", and their wage payments are subject to the Act. Having arrived at that conclusion, we now consider the remaining factual and legal issues which proceed from it: There is a dispute as to the exact number of hours worked each week by these employees. The Secretary and employee-claimants insist this amounted to as much as 63 hours, whereas defendant argues that they worked an average of 56 hours per week. We believe the latter's version is eminently correct. Prior to February 4th, 1953, no time cards were kept, but from that point forward they were. The employees admitted they worked the same number of hours before and since that date. They also admitted that defendant paid them for every hour they worked. The cards were prepared and kept current each day by the bookkeeper after receiving reports from the shop foreman. At the end of each week, when receiving their pay, the employees were shown the cards and required to sign them. In their testimony they expressly admitted that they make no claim of fraud, misrepresentation, error or duress in this respect. They conceded defendant's complete honesty. We are convinced that any other conclusion than that defendant's records are correct, and that his factual contention is correct, would be absurd. Accordingly, we find and hold that these employees worked an average 56-hour week during the period material to this litigation. Beginning in early June 1953, and continuing until late November of 114 that year, defendant admittedly paid his employees an extra $10 per week. This amount was not considered by him in calculating overtime payments due. He contends this was simply a bonus, an extra incentive or inducement to a higher quality and quantity of work; therefore, that he owes nothing further for overtime. He does not argue that this was extra pay for overtime work. The Secretary and employee-counterclaimants contend, on the other hand, that defendant was required by law to add this to their regular base pay rates in figuring overtime payments due, since they worked more than 40 hours per week. The latter contention is correct.[8] These extra amounts during that period must be added to the regular 40-hour week base pay and from the total the hourly rate for overtime may be computed. The Secretary insists he is entitled to the injunction against future violations prayed for in C.A. No. 4040. It is true, as he urges, that in the past defendant technically has been guilty of transgressing the Act in failing to keep proper records and in paying his employees a straight weekly wage, without regard to the overtime requirements of the Act. It is true also that defendant in these proceedings has contested applicability of the Act to his business and these employees. Yet, the record is convincing that his attitude resulted, not from a willful attempt at evasion or violation, but from the advice of his counsel, honestly given and accepted. After all, the question was far from clear. Our holding of liability under the Act was arrived at with difficulty and only after soul-searching study of the applicable authorities, with all of which we do not agree, but by which we are bound. Defendant now is maintaining, and we believe he will continue to do so, entirely adequate and accurate work time-cards, with a time clock. Since February 4, 1953, he has been paying his employees wages in accordance with the Act, except for the "incentive" payments just discussed. As to these, we are sure he was in good faith. There is every reason to expect that in the future, and after he has paid the arrearages due, he will continue to comply with the law in all respects. In keeping with the judicial attitude found in Walling v. Youngerman-Reynolds Hardwood Co., Inc., 325 U.S. 419, 65 S. Ct. 1242, 89 L. Ed. 1705, and exercising the discretion with which we are vested, we must deny the prayer for an injunction. Like observations and conclusions are applicable to the demand by the employee-claimants in C.A. No. 4004 for liquidated damages. We believe and find, as suggested by their counsel in brief, that a fair and adequate award would be 5% on the amounts owed them by defendant from their due dates until paid. As to the counterclaim for attorney's fees in that action, we note the following: Their attorney prepared and filed for them an answer and counterclaim. He appeared in Court at a hearing on certain preliminary motions, but did not argue. He entered into a written, one-page stipulation with defendant's counsel. He attended the trial, which lasted about four or five hours, but took no active part in it, and questioned no witnesses. He offered no evidence as to the extent or value of his work. He filed three briefs of two or three pages each. For the most part, and with no reflection intended upon his energy or ability, we must say he "rode piggyback" on the arguments and briefs presented by the Secretary's counsel. For these efforts, all things considered, we feel that a fee of $350 will compensate him amply for his time and the results obtained. Accordingly, there will be judgment in C.A. No. 4004 rejecting that plaintiff's demands in full. There will be further judgment against Mr. Tilbury and in favor *115 of counterclaimants, Self and Simmons, for all amounts of overtime due, plus 5% thereon from the due date of each payment as liquidated damages, and an attorney's fee of $350. In C.A. No. 4040, there will be judgment in favor of defendant, rejecting plaintiff's demands. In C.A. No. 4052, there will be judgment for plaintiff and against defendant as demanded. Proper decrees, in keeping with this opinion, should be presented for signature after the attorneys have calculated the correct amounts due. This opinion will serve as our Findings of Fact and Conclusions of Law. Rule 52(a), Fed.Rules Civ.Proc., 28 U.S. C.A. NOTES [1] 29 U.S.C.A. § 201 et seq. [2] Rogers v. Skinner, 5 Cir., 201 F.2d 521. [3] 29 U.S.C.A. § 216(b). [4] Divins v. Hazeltine Electronics Corp., 2 Cir., 163 F.2d 100; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S. Ct. 332, 87 L. Ed. 460; Skidmore v. John J. Casale, Inc., 2 Cir., 160 F.2d 527. [5] Overstreet v. North Shore Corp., 318 U.S. 125, 63 S. Ct. 494, 87 L. Ed. 656. [6] This is "production of goods for commerce". See Walling v. Peoples Packing Co., 10 Cir., 132 F.2d 236, and authorities therein cited. [7] "In determining the coverage of the Act, a manufacturer can not assume an attitude of detached aloofness from his product, ignoring the ultimate purpose or use for which it is intended. If he knows, or reasonably should know, that in the normal and ordinary course of business his product will move in interstate commerce, or if he intends or expects that it will so move, either alone or in connection with some other product, he is a producer of goods for commerce within the meaning of the Act. Actual knowledge that his product will so move is not essential. Nor is it of any consequence that the manufacturer's activities in connection with the product terminate before it moves in interstate commerce." Tobin v. Celery City Printing Co., 5 Cir., 197 F.2d 228, 229. See also Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S. Ct. 125, 87 L. Ed. 83; D. A. Schulte, Inc., v. Gangi, 328 U.S. 108, 66 S. Ct. 925, 90 L. Ed. 1114. [8] Walling v. Harnischfeger Corp., 325 U.S. 427, 65 S. Ct. 1246, 89 L. Ed. 1711; Bibb Mfg. Co. v. Walling, 5 Cir., 164 F.2d 179, certiorari denied, Bibb Manufacturing Co. v. McComb, 333 U.S. 836, 68 S. Ct. 607, 92 L. Ed. 1121.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509457/	596 S.W.2d 681 (1980) M. B. M. COMPANY, INC., Petitioner, v. Shirley Ann COUNCE, Respondent. No. 79-313. Supreme Court of Arkansas. March 24, 1980. 682 Parker & Henry, Jonesboro, for petitioner. Barrett, Wheatley, Smith & Deacon, Jonesboro, for respondent. POGLEMAN, Chief Justice. Shirley Ann Counce appealed from a summary judgment against her in her suit against M.B.M. Company, her former employer, to recover damages for wrongful discharge and for intentional infliction of emotional distress. Because we find a material issue of fact as to intentional infliction of emotional distress, we affirm the action of the Court of Appeals reversing the judgment and find no error in that court's holding. In her complaint, respondent Counce alleged that, on February 2, 1977, she was "laid off" from her employment by petitioner at Coleman's Bar B-Q, its place of business in West Memphis, supposedly because her services were no longer needed but that she was subsequently told by an employee of petitioner that she must submit to a polygraph examination in connection with a money shortage on the last day she worked. She further alleged that she passed the test and demanded her wages for her last 17 hours of work, but when she received her paycheck it amounted to only $0.81 after an unexplained deduction of $36, which was later explained as being her share of the money which was missing on February 2. She asserted that these actions by petitioner were an intentional course of conduct designed to cause severe emotional distress, and that her termination was in retaliation for alleged stealing and a breach of the employment relationship and in violation of public policy. M.B.M. moved for summary judgment on the basis of the discovery deposition of Ms. Counce and those of Jerrell Coleman Moss, area supervisor for M.B.M., who was in charge of the West Memphis store, and 683 Porter Moss, president of M.B.M. Since we are considering a summary judgment, we will view this evidence in the light most favorable to Shirley Ann Counce, against whom it was rendered. Ms. Counce was employed by M.B.M. at the West Memphis store on January 17, 1977. The store manager was Jan Hylander. Between the closing of the business on February 1, 1977 and its reopening the following day, $99.00 in money and checks were missing. Ms. Counce had been assigned to the cash register on that evening. She had no knowledge the money was missing until the store manager called her on the morning of February 2. When Ms. Hylander asked her if she had put all the money and checks together as she was supposed to do, Ms. Counce answered in the affirmative. Later Ms. Hylander called Ms. Counce and told her that she was laid off because Ms. Hylander had too much counter help. Shortly thereafter, Ms. Counce called and asked Ms. Hylander about her pay, but was told that she would have to take a polygraph test before the company would release her check. She went to Memphis and submitted to the test, which was arranged by Coleman Moss. The polygraph operator told her that she had passed and that M.B.M. would have to release her paycheck. The next day she picked up her check for the previous week's work. A week later she picked up her check for the last 17 hours she had worked. When she noticed that it was for only $0.81, she went back to Coleman's Bar B-Q and asked Jan Hylander why it was for that amount but was told that she would have to talk to Coleman Moss. Ms. Counce then called him on the telephone, asked why her money was withheld and told him that she had passed the test and needed her money. Coleman Moss responded, "I need mine, too." Ms. Counce applied for unemployment benefits and gave the same reason for her discharge that she had been given by Jan Hylander. She was denied benefits because the employer had stated that she was laid off because of numerous customer complaints, a bad attitude and violation of company rules and policies. At the time Ms. Counce was discharged, M.B.M. was advertising for counter help in the West Memphis newspaper. Coleman Moss stated that the reason Ms. Counce was dismissed was because there were two customer complaints about her service, but he did not know the name of either customer. Ms. Counce never had any problems or arguments with customers. The deduction from her pay was one-third of the missing money and the president of the company made the decision to withhold it. After an investigation by the Labor Department, this amount was paid to Ms. Counce. Coleman's Bar B-Q did not have excess counter help when she was discharged. No one ever said that Ms. Counce had stolen the missing money. The written employment agreement between Ms. Counce and the company provided that she could be discharged at any time, without notice. In that contract, she consented, if she were employed, to submit to a polygraph test at any time during her employment and she understood that employees of Coleman's might be required to take such tests. Ms. Counce first argues that there was a breach of the employment relationship in violation of public policy. This is but another way of saying that M.B.M. breached the contract of employment. She relies to some extent upon cases holding that discharge of an employee for filing a worker's compensation claim, for refusing to "go out" with her foreman, for going on jury duty, or for refusal to commit perjury, is a breach of contract. She contends that, upon the authority of such cases, she has stated a cause of action in contract. We might well agree with Ms. Counce if there was any indication that she was discharged for exercising a statutory right, or for performing a duty required of her by law, or that the reason for the discharge was in violation of some other well established public policy. That simply is not the case here. Since it is not, our holdings in such cases as Miller v. Missouri Pac. Transportation Co., 225 Ark. 475, 283 S.W.2d 158, lead 684 us to hold that Ms. Counce has failed to establish a cause of action for breach of contract. In that case, the court relied upon the rule that, where no definite term of employment is specified in the contract of employment, and in the absence of other circumstances controlling the duration of the employment, the contract is terminable at the will of either party. That rule has greater impact when, as here, the contract specifically authorizes the employer to terminate the contract at will. In the absence of violation of some clearly established public policy, we join the Supreme Court of Utah in declining an invitation to remake the contract between the parties or to somehow devise a basis for relief whenever one party to a contract can show injury flowing from the exercise of a contract right by the other. Mann v. American Western Life Ins. Co., Utah, 586 P.2d 461 (1978). This is not a case in which there was injury resulting from a physical impact, so appellant's right to recover damages for emotional distress depends upon the existence of a cause of action to recover these damages when distress is not merely "parasitic" as an element of damages for physical injury. The idea that a recovery should be permitted in some cases of this sort is not novel. In 2 Harper & James, The Law of Torts 1033, § 18.4 (1956), the authors said: The more recent trend, in the British Empire is well as America, has been away from this mechanical requirement of impact. Where defendant's conduct is intentional, or willful and wanton, or constitutes a technical trespass or other legal wrong (which is complete without a showing of damage), recovery has often been allowed for emotional disturbance and its consequences. This has been so for a long time, but there has been an extension of liability along this line in recent years. * * In a footnote, the authors state that the oldest example was a case decided in 1348. The concept of allowing recovery of damages for mental distress and injured feelings is not completely new in Arkansas. We upheld a recovery for mental suffering which was unaccompanied by any physical injury in Wilson v. Wilkins, 181 Ark. 137, 25 S.W .2d 428. Although we recognized that in actions for negligence there can be no recovery for mental suffering where there has been no physical injury, we said: The rule is well settled in this state, but it has no application to willful and wanton wrongs and those committed with the intention of causing mental distress and injured feelings. Mental suffering forms the proper element of damages in actions for willful and wanton wrongs and those committed with the intention of causing mental distress. Our holding in Wilson is not controlling authority for a holding that Ms. Counce has a cause of action against M.B.M, because the actionable wrong recognized in that case was wilful intimidation of the plaintiff's rights of personal security and of private property. The cause of action was based upon threats of the defendants that, if the plaintiff did not leave the community in which he lived, they would put a rope around his neck. Later in Geyer v. Western Union Telegraph Co., 192 Ark. 578, 93 S.W.2d 660, we again recognized the rule that, under the common law, there can be no recovery for fright or mental anguish caused by mere negligence, but that a recovery may be had where fright or mental anguish is caused by wilful conduct. In that case damages for mental anguish and fright were not sought, but we upheld a recovery for physical pain and injury attributable to the inability of the plaintiff to attend her brother's funeral because she was misled by an incorrect transmission of a death message. Our statement in Wilson either overlooked or disregarded our previous holding in St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42, 104 S.W. 551, 13 L.R.A. (n.s.) 159, the very case distinguished in the opinion. We actually held in Taylor that there could be no recovery for mental anguish unaccompanied by physical injury or some other recoverable elements of damage and that an independent action for damages for 685 mental anguish and humiliation would not lie, even though the violation of duty made the basis of the complaint was wilful. Authorities supporting this view were set out in the Taylor opinion and the same rule was followed in such subsequent cases as Chicago, Rock Island & Pacific Ry. Co. v. Moss, 89 Ark. 187, 116 S.W. 192, and Pierce v. St. Louis, Iron Mt. & S. Ry. Co., 94 Ark. 489, 127 S.W. 707. In the latter case, we explicitly declined an invitation to overrule Taylor in this respect. We had also held that the use of impolite and insulting language which caused humiliation and mental suffering was not actionable where there was no physical injury, even though we recognized that there are cases where there could be recovery for mental suffering coupled with a "constructive physical injury," such as duress or coercion, where there is no physical violence but an actual restraint or coercion. Chicago, Rock Island & Pacific Ry. Co. v. Moss, 89 Ark. 187, 116 S.W. 192. We followed this constructive physical injury theory in Arkansas Motor Coaches, Inc. v. Whitlock, 199 Ark. 820, 136 S.W.2d 184, holding that the act of a bus driver in laying his hand on a passenger in leading him from the bus, humiliating and embarrassing him before the other passengers, constituted an actionable wrong for mental anguish for which the coach company would be liable. We had also held that mental anguish was not a recoverable element of damages when three plaintiffs were unable to attend the funeral of a close relative due to their being prevented from boarding a train, because we could find no causal connection between the mental anguish suffered solely because of their being delayed and the physical pain suffered from illnesses contracted by the plaintiffs as a consequence of the same act of the defendant railroad. Chicago, Rock Island & Pac. Ry. Co. v. Mizell, 118 Ark. 153, 175 S.W. 396. Wittingly or unwittingly, we departed from the parasitic requirement in Wilson and there are subsequent holdings by this court that where the defendant's action constituting the wrong is wanton or wilful, there may be a recovery for humiliation and mental suffering. When we held in Rogers v. Williard, 144 Ark. 587, 223 S.W. 15, 11 A.L.R. 1115 that there could be recovery for bodily pain and suffering resulting from fright caused by a wilful wrong, we pointed out that we had not overruled St. Louis Iron Mt. & S. Ry. Co. v. Bragg, 69 Ark. 402, 64 S.W. 226, 86 Am. St. Rep. 206 in Taylor, Moss or Pierce. We found that it was inferable from Bragg that there could be recovery for bodily injuries from fright caused by a wilful tort or wanton wrong. We moved a little further toward the rule relied upon by respondent in Erwin v. Milligan, 188 Ark. 658, 67 S.W.2d 592, where we held that a married woman could recover damages for shock to her moral sensibilities and ideas of decency, nervous collapse, pain, anguish, humiliation and her physical pain and suffering and impairment of health attributable to a miscarriage because of physical shock, all of which were caused by indecent proposals made to her by the defendant. We did say in Erwin that there could be a recovery of damages for mental pain and anguish caused by wilful or intentional conduct, citing a textbook statement that damages are recoverable for mental suffering consisting in a sense of wrong or insult, indignity, humiliation or injury to the feelings where the suffering is the result of a wanton or intentional trespass on the person of a woman. We made no reference to Davis v. Richardson, 76 Ark. 348, 89 S.W. 318, in which we had reversed a judgment in favor of a female because she had been permitted to recover damages on account of indecent and insulting proposals made to her by a male, because she had suffered no physical injury. Although we had never held that there could be a recovery for emotional or mental distress or mental suffering in the absence of a physical injury either accompanying the mental suffering or resulting from it, we were led to say by way of dictum in Chicago, Rock Island & Pacific Ry. Co. v. Caple, 207 Ark. 52, 179 S.W.2d 151, that where the action of the defendant is wanton or wilful there may be a recovery for humiliation and suffering without any 686 physical injuries, citing Erwin, Rogers, and Lyons v. Smith, 176 Ark. 728, 3 S.W.2d 982, none of which is outright authority for the statement. In Lyons, there had been a recovery of actual damages for loss of use of the plaintiff's property and of exemplary damages for humiliation and mental suffering. It was not until we decided Oian Af///s, Inc. v. Dodd, 234 Ark. 495, 353 S.W.2d 22, that we actually sustained an award for humiliation, embarrassment, mental anguish and loss of weight from worry and lack of sleep. There we relied upon the dictum in Caple for stating that, in some instances, we had held there may be recovery for humiliation and mental suffering in the absence of any physical injury. We held that there might be such a recovery in an action for invasion of privacy "just as in cases of wilful and wanton wrong." It must be acknowledged, however, that one of the elements supporting the plaintiff's recovery in that case was a physical factor, i. e., loss of weight resulting from worry and lack of sleep, another physical manifestation. We carried the constructive physical injury theory to its ultimate limits in holding that a complaint of a married woman seeking damages for worry, humiliation, distress of mind, public shame and degradation, by reason of the actions of a hotel manager in wrongfully ordering her out of the room to which she and her husband had been assigned and out of the hotel by insulting and abusive language falsely imputing adultery to her, stated a cause of action, Stevenson v. John J. Grier Hotel Co., 159 Ark. 44, 251 S.W. 355. The constructive physical injury was based upon her leaving the hotel before restraint and coercion by the manager became actual rather than constructive. The evolutionary process demonstrated by our own decisions culminating in such holdings as those in Wilson, Rogers, Erwin, Caple and Olan Mills, caused Prof. William T. Prosser to say, in 1939, that it was time that the courts recognize that they had created a new tort. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Michigan Law Review 874. He theorized that there was no necessity that a tort have a name. According to him, the new tort consisted of intentional, outrageous infliction of mental suffering in the extreme form and that it resembled assault. He pointed out that, in spite of the fact that mental anguish had been recognized in early assault cases, the law had been reluctant to accept interest in peace of mind as entitled to independent legal protection. He described the matter dealt with in this new tort as outrageous conduct of a kind especially calculated to cause serious mental and emotional disturbance. Prof. Prosser pointed out that in many cases in which recovery for mental suffering was permitted as parasitic damage, that element was the only substantial damage actually sustained. Our cases are certainly illustrative of this statement. Prof. Prosser pointed out that the courts had strained (as this court certainly has) to find a technical battery, an assault, a false imprisonment, a trespass or even an invasion of the right of privacy "as a bare excuse" to permit recovery for mental injury, when it was the only substantial damage suffered. Chief Judge Henley, after reviewing our cases, including Caple, Wilson, Rogers, and Bragg, in Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D.Ark, 1959), correctly concluded that Arkansas was an "impact" state, even though the impact could be constructive. The California Supreme Court took the step recommended by Prof. Prosser in State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal. 2d 330, 240 P.2d 282 (1952). Justice Traynor, speaking for the court, reviewed the evolutionary process by which the interest in mental and emotional tranquility and freedom from mental and emotional disturbance was converted from a thing of insufficient importance to require others to refrain from conduct intended to cause such a disturbance, to the exact opposite, so that conduct intended to invade freedom from severe emotional distress is now tortious. This transition was also reviewed in George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915, 46 A.L.R. 3d 762 (1971). The 687 Massachusetts court there recognized the tort but clung to the requirement that there be bodily harm. Only five years later the Supreme Court of Massachusetts said that it had concluded that the extension of its recognition of the existence of a cause of action for intentional infliction of severe emotional distress to cases in which there was no bodily injury was both warranted and desirable. The Supreme Court of Missouri, recognizing that it had previously accepted the view that a right of action does exist for damages for severe emotional distress intentionally caused by conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community, first held that such a cause of action had been stated in Warrem v. Parrish, 436 S.W.2d 670 (Mo., 1969). The Tennessee Supreme Court recognized the "new tort" in Medlin v. Allied Investment Co., 217 Tenn. 469, 398 S.W.2d 270. Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (1961) is another case in which the intentional infliction of emotional distress has been specifically recognized as a tort. It was Prof. Prosser's theory that the problems inherent in allowing such recoveries could be more intelligently dealt with if we were to jettison the entire cargo of technical torts with which the real cause of action has been burdened and recognize and treat the intentional infliction of extreme mental suffering by outrageous conduct as a separate and independent tort. Nearly 20 years later, Prof. Prosser was able to say that it appeared to be quite generally recognized that the nameless wrong which was usually called the intentional infliction of mental suffering, or mental anguish, or mental disturbance or emotional distress was entitled to be recognized as a separate tort. Prosser, Insult & Outrage, 44 Cal.L. Rev. 40 (1956). See also, Magruder, Mental & Emotional Disturbance in Torts, 49 Harv. L.Rev. 1033 (1936). It is not a long step from Wilson, where we found some remote actionable wrong or from Olan Mills, where we resorted to the right of privacy to support an award to an outright recognition of intentional infliction of emotional distress. In Restatement of Law, Torts 2d, § 46, p. 71 et seq., the tort is recognized. We need only to abandon our strained efforts to find a tort or a theoretical physical impact or injury and the consequent tenuous reasoning in order to justify the award of damages for mental anguish. By doing so, we can and do now recognize that one who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. It is of little consequence that different terms are used in describing the element of compensable damages involved as mental suffering, mental anguish, emotional distress, etc. Prof. Prosser sees the term mental anguish comprehensive enough to cover everything from nervous shock to emotional upset, and agrees that the words emotional distress may well be used. In his view they include all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, anger, embarrassment, chagrin, disappointment, worry and nausea. Prosser, Insult & Outrage, 66 Cal. L.Rev. 43 (1956). See also, Restatement, Torts 2d 22, § 46, Comment j. The emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. It must be reasonable and justified under the circumstances. Liability arises only when the distress is extreme. Restatement, Torts 2d 78, § 46, Comment j. By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See Restatement of the Law, Torts 2d 72, § 46, Comment d. Since we recognize the tort of intentional infliction of emotional distress, we conclude that granting a summary judgment 688 was error. Ms. Counce has no cause of action for intentional infliction of emotional distress because of petitioner's action in discharging her, because petitioner is not liable for doing that which it had the legal right to do. Restatement, Torts 2d 76, § 46, Comment g; Prosser, Insult & Outrage, 44 Cal.L.Rev. 40, 49. M.B.M.'s conduct subsequent to her discharge is a different matter. Prof. Prosser states that there are cases in which the extreme and outrageous nature of the conduct arises not so much from what is done as from the abuse by the defendant of a relationship with the plaintiff which gives him power to damage the plaintiff's interests. Prosser, Insult & Outrage, supra, 47. Certainly there was such a relationship so long as Ms. Counce was not paid for her work until the time of her discharge. Such a relationship also existed with reference to her entitlement to unemployment compensation benefits. The facts disclose that, in order to receive her pay, Ms. Counce was forced to submit to a polygraph test after her employment had been terminated and to cause a labor department investigation to collect $36 of the $36.81 due her. There is, at this point, no satisfactory explanation of the basis for withholding this money after she had passed the polygraph test. The different reasons given for her discharge are a significant circumstance, particularly when Coleman Moss' unsatisfactory explanation of the basis for the statement made by M.B.M. to the Employment Security Division is taken into account. We have no hesitation in saying that there was a material issue of fact as to whether M.B.M.'s conduct was extreme and outrageous. The question of severe emotional distress is another matter. We can say with assurance that there is no issue of fact on humiliation, because Ms. Counce has eliminated that sort of distress by her own testimony. Perhaps we should not say that the element of bodily harm is totally eliminated but it seems certain from respondent's testimony that her bodily harm was slight, if existent at all. We cannot say, with the degree of certainty that we should where summary judgment is involved, that there is no material issue of fact as to her unpleasant mental reactions such as anguish, shock, anger, embarrassment, chagrin, disappointment or worry. We agree with the Court of Appeals that. the summary judgment must be reversed. The cause is remanded to the Court of Appeals with directions to remand it to the trial court for further proceedings not inconsistent with this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509539/	465 A.2d 207 (1983) STATE v. Peter VERLAQUE. No. 82-159-C.A. Supreme Court of Rhode Island. September 6, 1983. 208 Dennis J. Roberts II, Atty. Gen., Margaret R. Levy, Sp. Asst. Atty. Gen., for plaintiff. William F. Reilly, Public Defender, Barbara Hurst, Chief Appellate Atty., Providence, 209 Janice M. Weisfeld, Asst. Public Defender, for defendant. OPINION SHEA, Justice. The defendant, Peter Verlaque (Verlaque), appeals from a Superior Court jury conviction of murder in the second degree. We reverse. Although Verlaque raises a number of issues, we shall address only those questions relating to the motion to suppress his confession and Rule 16 of the Superior Court Rules of Criminal Procedure. On Friday evening, May 30, 1980, Verlaque left the Causeway Lounge in Smithfield, where he had been drinking for approximately four to five hours, and began hitchhiking to another bar. He decided to visit Maria Dube (Maria) after having been dropped off in the vicinity of her house. Sometime after she admitted Verlaque into her house, an argument erupted. The dispute continued in Maria's bedroom, where Verlaque started punching her, wrapped a towel around her neck, and finally strangled her. He then took a broken wine bottle and savagely cut her body in a number of places. Verlaque left Maria's dog in the bedroom with her body and departed. Having taken Maria's car keys, he drove away in her green Pontiac Firebird. Verlaque spent the following day with a friend, Charles Pelletier (Charles). When Verlaque arrived in Maria's car, Charles inquired where he had gotten the car. Verlaque responded, "[Y]ou don't want to know" and added that "the girl that owned it didn't need it anymore." After relating that he had gotten into an argument with and beaten the girl, he said, "[Y]ou should have seen her, she was a real mess." Later they gathered with some friends in a field on the outskirts of Pascoag. There, Charles's brother, Richard, told Verlaque that he should bring the car back to the rightful owner. Verlaque replied that he couldn't. Richard asked, "What the hell did you do? Did you kill her?" Verlaque only said that she was dead. The following day, Verlaque left the car in a parking lot and threw the keys into a river. Six days after the incidents described, at the urgent request of Maria's physician, a patrolman for the Smithfield police department went to Maria's residence to urge her to report for her kidney dialysis treatment. The patrolman entered the house through an open window and found Maria's now-blackened body and the remains of a dog. An autopsy revealed abrasions of the face and neck, hemorrhaging of the neck, multiple rib fractures, and lacerations of the chest, all of which resulted in death. The following day, Verlaque asked Richard if he knew whether the police were looking for him. Richard asked Verlaque if he had strangled Maria or cut her. Verlaque answered that he wasn't sure which killed her. When Richard asked Verlaque if he had killed the dog, he answered, "No, Richard, you know I wouldn't do something like that." On information obtained during their investigation, the police obtained an arrest warrant. Verlaque was arrested and transported to the Smithfield police station where he signed a waiver-of-rights form and confessed to the killing. THE MOTION TO SUPPRESS The first issue we shall address is the trial justice's refusal to suppress Verlaque's confession. Verlaque claims that the state failed to prove that the waiver of his Miranda rights and subsequent confession were knowing, voluntary, and the product of a free and rational intellect unhampered by the effects of mind-altering drugs. When a defendant challenges the voluntariness of a statement or confession, the trial justice must conduct a hearing outside the presence of the jury. The confession is admissible if examination of the totality of the circumstances surrounding the interrogation shows, by clear and convincing evidence, that the defendant voluntarily waived his right to remain silent and 210 have the assistance of counsel. State v. Benton, R.I., 413 A.2d 104, 109 (1980); State v. Espinosa, 109 R.I. 221, 228, 283 A.2d 465, 468 (1971). If the trial justice admits the confession, he must instruct the jury to make an independent assessment of its voluntariness. State v. Killay, R.I., 430 A.2d 418, 421 (1981). When reviewing the admissibility of a confession, this court initially looks at the record to determine if the trial justice adequately and correctly followed the procedural safeguards set forth above. If they were observed, we then proceed to examine the record in the light most favorable to the prevailing party and order reversal only if we conclude that the decision of the trial justice was clearly wrong. Killay, supra at 421. In the present case, we conclude that the trial justice correctly followed the procedural safeguards; therefore, we shall independently examine the record only to determine if his decision was clearly wrong. In ruling on Verlaque's motion to suppress, the trial justice found that the state had met its obligation to prove, by clear and convincing evidence: (1) that Verlaque had been informed of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (2) that he had understood these rights and had knowingly, intelligently, and voluntarily waived them; and (3) that he thereafter made a voluntary statement. From our examination of the record, we find no reason to say that the trial justice was clearly wrong in concluding that Verlaque's confession was voluntary. The evidence presented indicates that Verlaque was adequately and effectively apprised of all his rights under the Miranda decision. In addition, the record is replete with evidence that Verlaque was able to understand those rights, the nature of his actions, and the consequences of a waiver. Although he was arrested at a beer party, the police officers testified that there was nothing unusual about his speech, attitude, or actions; nor did the officers detect the odor of alcohol on his breath. Verlaque indicated that he did not want an attorney and that he did not wish to telephone anyone. In fact, when a family member called, Verlaque refused to talk with him. We listened, as did the trial justice and jury, to the tape recording of Verlaque's statement. The statement itself is indicative of its voluntariness. It is replete with detail. No subject, however unpleasant, is avoided in Verlaque's narration of the events. His pronunciation is clear, not slurred. The assertion of defendant's appellate counsel that "Verlaque alternated between bouts of crying and strange fits of laughter" during his statement not only is an overstatement but is also very misleading. Verlaque laughed when he related to the officers that a certain woman decided to leave a party with him rather than with another man. Likewise, he cried when he related the gruesome details of the murder. After reviewing the entire statement, we are convinced that the crying is not conclusive of Verlaque's confusion or intoxication, rather it indicates remorse, embarrassment, and possibly revulsion at the viciousness of the murder. Moreover, Verlaque exhibited enough concentration to make corrections on the transcribed statement the same night that he confessed. The defendant's appellate counsel places great reliance on Verlaque's testimony concerning the amount of alcohol he drank and the number of pills he ingested prior to his arrest. She makes much of Verlaque's statement that "these goofers are terrible." Although we are aware that the term "goofers" is slang for some type of drug, we believe, as did the trial justice, that this statement does not have much significance, largely because everything else about Verlaque's behavior and judgment appeared normal under the circumstances.[1] Furthermore, she overlooks the contradictory testimony 211 of the police officers and other witnesses which the trial justice, at the suppression hearing, chose to believe. In addition, the trial justice took into account Dr. John DeFeo's testimony concerning the effect combining a hypothetical amount of alcohol and drugs would have on a person's ability to reason, but he concluded that the hypothetical result was not consistent with Verlaque's condition when he gave his statement. Our independent review of the record leads us to the conclusion that Verlaque probably exaggerated the amount of alcohol and drugs he had taken. Indeed, the record is full of competent evidence that supports the trial justice's conclusion that the confession was admissible. Verlaque's appeal on this ground, therefore, is without merit. Verlaque also contends that the trial justice erred by holding the suppression hearing during the trial rather than prior to trial. Although we realize this issue need not be decided to dispose of this appeal, we take the opportunity today to review this area of the law. He relies upon State v. Maloney, 111 R.I. 133, 300 A.2d 259 (1973), where this court stated, "[I]n all criminal trials conducted subsequent to the filing of this opinion, efforts to suppress evidence must be, by motions, made and heard prior to trial." Id. at 144, 300 A.2d at 265. Verlaque's reliance on Maloney is misplaced. In Maloney, this court was responding to a situation where the defense attorney failed to file a motion to suppress prior to trial. We believe that the court was concerned about the possibility of a defense attorney subverting the state's right to appeal an adverse evidentiary ruling by waiting to object to the introduction of evidence until after the trial has begun. An examination of Rule 12(b)(4) of the Superior Court Rules of Criminal Procedure in conjunction with Maloney supports our conclusion that the rule in Maloney was designed to preserve the state's right to appeal. Rule 12(b)(4) provides that "[a] motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue." (Emphasis added.) The reporter's notes to this rule state that "[it] is fashioned in large part upon its federal counterpart." Rule 12(e) of the Federal Rules of Criminal Procedure concerns the discretion of a trial justice to defer ruling on pretrial motions. The rule provides that the motion "shall be determined before trial unless the court, for good cause, orders that it be deferred * * * but no such determination shall be deferred if a party's right to appeal is adversely affected." (Emphasis added.) Federal courts do require motions to suppress evidence to be heard prior to trial in order to prevent frustration of the central purpose of 18 U.S.C.A. § 3731 (West 1969), which essentially provides the government a right to appeal certain evidentiary rulings. United States v. Barletta, 644 F.2d 50 (1st Cir.1981). The case at bar illustrates the necessity of the state's knowing the outcome of the motion to suppress prior to the empaneling of the jury. The postponement of the suppression hearing placed the state's case in a precarious position. By its request to delay the suppression hearing, the state forfeited its right to appeal since jeopardy would have attached to Verlaque before a ruling was made. It is hard to perceive how a defendant could be prejudiced by this procedure, for it appears the defense had much to gain and the state everything to lose by a postponement of the hearing. All this aside, however, we would be willing to grant a defendant relief if he could demonstrate that he was prejudiced by the trial justice's refusal to hear the motion to suppress before trial. Verlaque's brief, however, simply does not set out how he was prejudiced by the midtrial suppression hearing. He couches his argument in general objections rather than make specific allegations, stating that "[a]n admissible confession will clearly affect a defendant's method of voir dire and jury selection; whether to make an opening statement at 212 all and when; how to cross-examine the state's witnesses; and whether to even contemplate taking the stand in front of the jury." Because Verlaque does not indicate any specific instances of prejudice, his contention that the trial justice committed reversible error by holding the suppression hearing during trial is without merit. DISCOVERY The next issue concerns Rule 16 of the Superior Court Rules of Criminal Procedure. Verlaque claims that the state, through its prosecutor, repeatedly failed to provide timely and sufficient discovery pursuant to Rule 16. We must agree. On November 10, 1980, defense counsel filed a motion for discovery and inspection pursuant to Rule 16. The motion included a request for a written list of the names and addresses of all persons that the attorney for the state expected to call as witnesses at the trial. The motion also requested: "As to those persons whom the state expects to call as witnesses at the trial, all relevant recorded testimony before a grand jury of such persons and all written or recorded verbatim statements, signed or unsigned, of such persons and, if no such testimony or statement of a witness is in the possession of the state, a summary of the testimony such person is expected to give at the trial." On December 12, 1980, defense counsel filed a motion to compel discovery because the state had not yet complied with the discovery motion. A justice of the Superior Court granted the motion, ordering the state to furnish the discovery material by January 6, 1981. On December 18, 1980, the state partially complied with the discovery motion. However, it did not provide a list of witnesses and their addresses as had been requested. Instead, the prosecutor instructed defense counsel to "see attached list of names in report." The material that was included in the discovery packet included police reports written by Detective Thomas Oates and Sergeant Brian Burke, statements of Richard and Charles Pelletier and others, and Verlaque's confession. On April 10, 1981, defense counsel filed a motion to compel further discovery. The motion included requests for the following: (1) a letter written by Maria Dube to a person by the name of Jill, (2) photographs of Maria Dube, and (3) copies of the grand jury tapes, the tape of Verlaque's confession, and the tape of Mr. Pelletier's statement. On April 29, the state answered the motion. It provided a copy of the letter and a copy of each of the requested tapes but objected to furnishing the photographs. On August 18, 1981, the day the court began hearing pretrial motions, defense counsel made a motion to compel the state to furnish discovery material previously requested. This motion included a request for a list of witnesses that the state intended to call at trial. The prosecutor argued that the state had already complied with this request by providing defendant with statements and police reports within which he could find the names and addresses of the witnesses. The trial justice disagreed with the state's contention and ordered that the prosecutor provide the list requested. He stated, "[A] list means a list and not what names you can extract from the reports. There certainly can be far more names in the report than the state could possibly call as witnesses." The following day the state furnished defense counsel with a four-page list of fifty-three names and addresses of witnesses. The prosecutor asserted that all of the names were extracted from the discovery material that was previously provided to defense counsel. Defense counsel requested a continuance for several days, arguing that he needed time to check the list against the material he had already received in order to properly prepare for trial. He stated also that he did not recognize thirty-five of the fifty-three names. He also pointed out that the state should have provided him with a summary of the testimony these witnesses would give and requested that the state be precluded from presenting witnesses whose 213 testimony had not been summarized. The trial justice ruled that he would address the request to preclude witnesses from testifying if and when the state called a witness whose testimony had not been summarized. He also denied the continuance requested. He stated that it was clear from the reports what the witnesses would testify to. Thereafter, Verlaque unsuccessfully moved to pass the case, claiming he was unprepared to go forward because of the state's failure to comply with discovery. Later in the proceedings, during the mid-trial suppression hearing, the defense called Billy Hopkins (Hopkins) as a witness. It was during Hopkins's testimony that defense counsel first learned that Hopkins had given a statement to the police. Although the state had included Hopkins on its list of fifty-three witnesses, the state had never provided a copy of his statement to defense counsel. Again, defense counsel moved to pass the case because of the state's failure to comply with discovery. Although the trial justice denied the motion to pass, he ordered the prosecutor to review his files over the weekend to ensure that the defense had all the other witnesses' statements. On the following Monday morning, the prosecutor acknowledged that the state had not turned over reports prepared by Detective Gerald Prendergast of the State Police. The prosecutor, however, stated that he did not believe that this material was discoverable. The trial justice agreed with him but once again ordered the prosecutor to review his list of witnesses to determine whether or not the state was in possession of statements of anyone else whose name was included on the list of witnesses. The prosecutor then provided the defense with nine additional witness statements and reports, including the statement by William Hopkins. Simultaneously, the prosecutor also volunteered the activity report of Detective Prendergast, presumably in lieu of summarizing his testimony. Because of the late delivery of discovery material, defense counsel again asked the trial justice to declare a mistrial. He denied the motion, ruling that Verlaque was not prejudiced by the late tender of the additional witness statements. The trial justice did, however, grant defense counsel's alternative motion for a continuance until the following day so that the discovery material could be reviewed. Verlaque argues that the trial justice committed reversible error by refusing to grant a reasonable continuance when the state delivered its list of fifty-three witnesses and by either failing to pass the case or by refusing to prohibit certain witnesses from testifying. The imposition of any sanction for noncompliance with discovery obligations is a matter within the sound discretion of the trial justice. His ruling should not be overturned absent a clear abuse of discretion. State v. Concannon, R.I., 457 A.2d 1350, 1353 (1983); State v. Coelho, R.I., 454 A.2d 241, 245 (1982); State v. Darcy, R.I., 442 A.2d 900, 902 (1982). In Coelho, we stated that a trial justice, and this court on appeal, should examine four factors when considering a proper sanction for non-disclosure of discovery material. Those factors are "(1) the reason for non-disclosure, (2) the extent of prejudice to the opposing party, (3) the feasibility of rectifying that prejudice by a continuance, and (4) any other relevant factors." When the trial justice denied Verlaque's motion for a continuance of several days to examine the list of fifty-three witnesses, it is clear that he believed that the prosecutor did not deliberately fail to comply with Rule 16. At the time the trial justice made his determination, he could not perceive, as we can after a review of the entire record, how deliberate the noncompliance actually was. The prosecutor only called fifteen of the fifty-three witnesses he listed. It is difficult for us to believe that an experienced prosecutor would not know the day before trial who would testify for the state. We can only conclude that the prosecutor deliberately failed to follow both the letter and the spirit of Rule 16. Defense counsel, 214 at the last minute, had to determine who of the fifty-three witnesses listed would testify and prepare to cross-examine them. It is apparent to us that at this time, the prosecutor knew that he would be calling less then one-third of them. The language of Rule 16 is very clear. The prosecutor must provide a defendant with specific information when requested. The prosecutor does not have the authority to interpret the rule and decide what constitutes substantial compliance or equivalent compliance. Rule 16(a)(6) requires the attorney for the state to provide a list of witnesses, not what the prosecutor thinks is the functional equivalent of a list. The prosecutor [19] should have provided the list when it was originally requested. The list should have named the people he expected to call as witnesses. A list of witnesses means just that the people who will testify at trial. It does not mean everyone the Attorney General's department or the police interview in investigating the state's case. Too much information can be as useless as no information at all. This is especially true when an avalanche of information is dumped on the defense on the eve of trial. Because we conclude that the prosecutor deliberately failed to comply with Rule 16, it is unnecessary to consider whether or not Verlaque suffered procedural prejudice as a result of the noncompliance. See State v. Concannon, R.I. at , 457 A.2d at 1353. We remind every prosecutor of the words of Justice Sutherland in Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935): "The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is [*20] not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." The defendant's appeal is sustained, the judgment of conviction is vacated, and the papers of the case are remanded to the Superior Court for a new trial. NOTES [1] We also note that it is not clear from Verlaque's statement whether it was meant to describe his then-existing physical condition or was rather a reference to his physical or mental state at a prior time.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/8302422/	Mr. Justice McKinney delivered the opinion of the Court. This is a suit to recover damages under the Workman’s Compensation Act (Pub. Laws 1919, c. 123). The defense of failure to give the thirty days’ notice, as provided by section 22 of the act, was sustained by the trial court, and the suit was dismissed. At the time of the injury the plaintiff was between twenty and twenty-one years of age, and his insistence is that, being an infant, he was excused from giving notice, and relies upon the case of McClain v. Kingsport Improvement Corporation, 147 Tenn., 130, 245 S. W., 837. In that case the court said: “Infancy of dependents is a reasonable excuse for failure to give notice of the accident to the employer within thirty days.” In this case the action is not brought by “dependent infants” hut by an “employee,” who was over eighteen years of age at the time of the injury. This court, in Scott v. Nashville Bridge Co., 143 Tenn., 120, 223 S.W., 853, said: “It is next said that the act is unconstitutional, in that it undertakes to make an election for and a binding contract upon a minor employee, when, by reason of such minority, he is unable to make such election or contract. “In the caption to the act it is set forth as being one of the purposes of the act ‘to make minors sui juris for certain purposes.’ 134“In section 2, subsection b, of the act, it is provided: ‘ “Employees” shall include every person, including a minor, in the service of an employer," . . . under any contract of hire, apprenticeship, .written or implied. ’ “The second paragraph of section 7 of the act is as follows: ‘Whenever payment is made to any person eighteen (18) years of age or over the written receipt of such person shall acquit the employer.’ “In section 31, subsection 4, it is provided: ‘In case of physical or mental incapacity, other than minority, of the injured person, . . . the period of limitation in any such case shall be extended for one year from the date when such incapacity ceases.’ “We are of the opinion that the plaintiff is not in a positition to challenge the act upon the ground that it undertakes to make an election for a minor employee, because it is not shown that plaintiff is a minor; in fact, we do not understand that it is claimed that he is a minor, and therefore has no interest in the provisions of the act relating to minors. . “However, we think there is no question as to the power of the legislature to endow minors with the right to make contracts otherwise lawful, and after he has been so endowed he becomes, for the purpose of the act, an adult, or, at least, on the same plane. It was expressly so ruled in the case of Borgnis v. Falk Co., 147 Wis., 327, 133 N. W., 209, 37 L. R. A. (N. S.), 489. “And it was expressly held in the case of Young v. Sterling Leather Works, 91 N. J. Law, 289, 102 Atl., 395, in which case the validity of the Workmen’s Compensation Act of the State of New Jersey was challenged, 135that a minor lias no such, vested right in his disability recognized by the common law as to prevent the legislature from constitutionally removing such disability with respect to future contracts, and that it had the power to change the age at which the minor is privileged to exercise legal rights which should be-binding on him.” This court, by judicial construction/limited the act to such infants as were lawfully employed. Manning v. American Clothing Co., 147 Tenn., 274, 247 S. W., 103; Western Union Telegraph Co. v. Ausbrooks, 148 Tenn., 615, 257 S. W., 858, 33 A. L. R., 330. The act therefore in express terms, applies to infants (with the exception stated) the same as to adults who are “under contract of hire;” thus recognizing their right to contract with respect to their services. But, while thus amenable to the act and, impliedly, authorized to contract, a restriction is placed upon them in the seventh section of the act, as follows: “Whenever payment is made to a person under the age of eighteen (18) years, or to a dependent child as defined in subsection 2. of section 30 over the age of eighteen (18) years, the same shall be paid to a duly and regularly appointed guardian or trustee of such child, and in receipt of such guardian or trustee shall acquit the employer and shall be in lieu of any claim of the. parents of such child or minor for loss of services.” It thus appears that, with respect to an infant employee over eighteen years of age, the legislature intended to confer upon him the status of an adult. He is authorized to contract with his employer; to settle with him in case of injury, or (impliedly), if necessary, institute suit *136against him, as though he were an adult. It is different with respect to infant employees under eighteen years of age and infant dependents generally. Under all of the authorities the legislature has the power to fix the age at'which the disabilities of infancy shall be removed. The legislature has the same power to emancipate an infant that a parent has, and clearly such was the intention of the legislature in framing the act in question. By chapter 162, Acts 1915, jurisdiction is conferred upon the chancery court to remove the disability of minority where the infant is over eighteen years of age. Section 22 of the act expressly provides that every "injured employee” shall give notice within thirty days. It makes no exception, and the act makes an infant, lawfully hired, an employee. The only excuse offered by the plaintiff for failing to give notice was the fact that he was an infant. This is not a valid excuse or one that should excuse him from complying with the plain mandate of the act. We base our conclusion upon the fact that, under the provisions of the act, infant employees over eighteen years of age have been emancipated; thus distinguishing this case from that of McClain v. Kingsport Improvement Corporation, supra. Prom the foregoing it results that the judgment of the circuit court will be affirmed.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/1509556/	465 A.2d 204 (1983) STATE v. Maurice BURGESS. No. 82-332-C.A. Supreme Court of Rhode Island. September 2, 1983. 205 Dennis J. Roberts, II, Atty. Gen., F. Thomas O'Halloran, Sp. Asst. Atty. Gen., for plaintiff. William F. Reilly, Public Defender, Barbara Hurst, Chief Appellate Atty., Paula Rosin, Asst. Public Defender, Providence, for defendant. OPINION SHEA, Justice. The defendant, Maurice Burgess (Burgess), appeals from Superior Court jury convictions of first- and second-degree sexual assault and committing an abominable and detestable crime against nature. The state concedes that we should vacate the conviction of committing an abominable and detestable crime against nature because this conviction and the first-degree sexual-assault conviction result from the same forcible-fellatio offense, thereby violating the double-jeopardy clause. Burgess also raises a number of other issues; however, the issue concerning the admissibility of Dr. Doreen Neptune's hearsay testimony is dispositive of the appeal. We reverse. We shall refer to the complaining witness as Marie. She testified that on the evening of January 24, 1981, a man grabbed her from behind and told her "to be nice to him" or else he would kill her. When she turned to face her assailant, he hit her in the head and shoved her to the ground. He beat her and then forced her into a deserted alley near the Union Paper Company, where he ordered her to commit an act of fellatio upon him. Marie was then forced to proceed farther into the alley and thrust onto a discarded cardboard box. A series of sexual assaults followed, the details of which it is not necessary for us to relate here. After the assault concluded, the assailant told Marie that she was going to make some money for him and that they would return to his apartment. Marie convinced him, however, to go to her house because it was closer. She told him that she had left her 206 keys at a friend's house and persuaded him to accompany her there. When they arrived, Marie "mouthed the words, `Please help me. I'm in trouble,'" and then asked her friend if she had her keys. At this point the friend knew something was wrong because she had never been given the keys. On a pretext, the friend was able to get Marie into the bedroom away from Burgess. Once in the bedroom, Marie told her friend that she had been raped and asked her to call the police. Her friend complied, and shortly thereafter the police arrived. They arrested the man who Marie said assaulted her. He was later identified as Burgess. Thereafter, Marie was taken by the police to the alley in which the assault had occurred. There they found the cardboard box and strands of Marie's hair. The police then took Marie to Women and Infants Hospital. Doctor Neptune, the examining physician, testified that she observed bruises on both of Marie's breasts and that she found tenderness in the posterior head area and in the abdomen. A rape kit was assembled and samples taken, but the tests revealed no spermatozoa or acid phosphatase. At trial, Dr. Neptune testified, over objection, that in the course of the doctor's taking a history, Marie related her story. According to Dr. Neptune: "[Marie] stated that she had visited a girlfriend's home, and as she left there, she was walking down Douglas Avenue and she passed three males standing in front of a liquor store, and shortly thereafter she was grabbed by from behind. * * * As she passed the El Reno Club, she noticed one male following her from behind. He grabbed her throat and stated, quote unquote, she will be nice to him. He then punched her and knocked her to the ground, stating that she will do what he said. He then pulled and knocked her to the ground stating she will do what he says. He then pulled her up by the hair and led her to a parking lot between * * . Anyway, this was a parking lot where he proceeded to undress her and then pull [sic] his pants off and proceeded to have sexual relations with her." The trial justice allowed Dr. Neptune's hearsay narration of the events because in his view, it was admissible under both the medical-diagnosis and excited utterance exceptions to the hearsay rule.[1] Medical History Exception to the Hearsay Rule In State v. Contreras, 105 R.I. 523, 253 A.2d 612 (1969), this court held that a statement made by a patient to a physician for the purpose of providing a "case history" is not always admissible. Admission or rejection of such evidence hinges on whether the patient's statements will assist or be helpful in the diagnosis or treatment of the ailment. Id. at 534-35, 253 A.2d at 619. These hearsay statements are admissible "because a person will presumably be truthful to a physician from whom he expects to receive medical attention." State v. Pina, R.I., 455 A.2d 313, 315 (1983). State v. Pina, like the case at bar, involved a sexual-assault allegation. The testimony of the doctor included the defendant's threats to kill the complaining witness and to throw her into the river. "It also included statements that [the] defendant `was horny and interested in sex' and that `he was going to rape her and didn't care what happened to him.'" Id. 455 A.2d at 315. This court reversed the conviction because the doctor's testimony included hearsay statements that were not pertinent to diagnosis or treatment. As in Pina, the history related by Dr. Neptune's testimony contained statements that were not pertinent to diagnosis or treatment, and therefore were erroneously admitted under the medical-diagnosis exception 207 to the hearsay rule. We have stated, "A doctor clothed in the garb of a medical expert possesses substantial stature in the eyes of a jury." Id. The narrative history testified to by Dr. Neptune corroborated Marie's testimony; therefore, admission of this testimony was highly prejudicial to Burgess. Excited Utterance Exception to the Hearsay Rule The trial justice also believed that Marie's statements to Dr. Neptune were part of the res gestae, more properly referred to as the spontaneous-utterance exception to the hearsay rule. Under this exception "a spontaneous exclamation may be admitted into evidence even if not strictly contemporaneous with the exciting cause if, from a consideration of all the facts in the case, it appears that the declarant, when he or she spoke, was still laboring under the stress of the nervous excitment engendered by the event he or she describes." State v. Jalette, 119 R.I. 614, 619, 382 A.2d 526, 529 (1978). "A spontaneous utterance is really an effusion. Being spontaneous, it is free from the elements of design, contrivance, and self-service * * *." In re Daniel, R.I., 456 A.2d 258, 260 (1983). Admissibility of a spontaneous utterance is addressed to the sound discretion of the trial justice. Id. 456 A.2d at 260. The state has the burden of proving that the statement is spontaneous and was made before the declarant had an opportunity to contrive or misrepresent. Id. In this case, we believe that the state failed to meet its burden. Although, in sexual offense cases there is a less demanding time element than in other cases, the state must still prove that the statement is spontaneous. See State v. Souza, R.I., 456 A.2d 775 (1983). Most of the factors taken into consideration to determine whether or not the statement is spontaneous militate against the use of the exception in this case. The assault took place sometime around 11 p.m. The police arrived and arrested Burgess at approximately 12 midnight. Marie told Dr. Neptune what had happened to her at approximately 1:45 a.m. Prior to that, Marie had accompanied the police to the scene and showed them where the assault occurred. Doctor Neptune was at least the fourth person who spoke with her after the incident, and the statements about which she testified had been made after Marie had had time to reflect. Although Dr. Neptune described Marie as appearing "emotionally upset," the mere fact that the declarant is upset does not suffice to establish the necessary foundation for the spontaneous-utterance exception. See In re Daniel, 456 A.2d at 261. The statement must be an effusion, and the evidence contained in the record simply is insufficient to demonstrate that Marie's statement was an effusive response to a startling event. For these reasons, we hold that the trial justice should have excluded Dr. Neptune's hearsay testimony. The defendant's appeal is sustained, the judgment of conviction is vacated, and the case is remanded to the Superior Court for a new trial. NOTES [1] Although the trial justice actually stated that the statement "might very well fall within the res gestae exception to the hearsay rule," the more proper term is the excited utterance exception to the hearsay rule.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509553/	282 F. Supp. 525 (1968) Eleanor FREEMAN, Administratrix of the Estate of Riley Freeman, Deceased, Plaintiff, v. GIACOMO COSTA FU ANDREA, Defendant and Third-Party Plaintiff, v. UNIVERSAL TERMINAL & STEVEDORING CORP., Third-Party Defendant. Civ. A. No. 37674. United States District Court E. D. Pennsylvania. April 5, 1968. S. Gerald Litvin, Philadelphia, Pa., for plaintiff. Harrison G. Kildare, Philadelphia, Pa., for defendant. OPINION FULLAM, District Judge. Defendant's motion for summary judgment raises novel and perplexing procedural issues. The underlying facts are undisputed: On Saturday morning, March 13, 1965, Riley Freeman was gravely injured in a waterfront accident. At 10:47 a. m. he was brought to the hospital, unconscious and in critical condition. His wife, Eleanor Freeman, was made aware of the seriousness of the situation and promptly consulted counsel. She arrived at the offices of her attorneys at about 11:30 a. m. Counsel immediately prepared a complaint, claiming damages for Mr. Freeman's injuries, and telephoned a deputy clerk of this Court, at his home, explaining that an emergency had arisen and that it was imperative that suit be 526 instituted at once. The latter official agreed to proceed forthwith to the courthouse in order to open the clerk's office to receive the complaint. Counsel's representative arrived at the courthouse with the complaint at 12:15 p. m. The deputy clerk arrived at about 12:45 or 12:50 p. m. The two men then proceeded to the clerk's office, where the complaint was time-stamped and docketed, at 1:00 p. m. The plaintiff named in the complaint was Riley Freeman. However, in the meantime, at 12:20 p. m., Mr. Freeman died. The complaint was duly served and an appearance entered by counsel for the defendant. The next procedural event of present significance occurred on August 3, 1967, when counsel for the defendant filed a "suggestion of death", making Mr. Freeman's death a matter of record. On August 23, 1967, plaintiff's counsel obtained court approval for the substitution of Eleanor Freeman, as administratrix of the estate of her late husband, as party-plaintiff. It is to be noted that this substitution occurred more than two years after the accident and ensuing death. A wrongful death action under the Pennsylvania statute[1] (Pa.Stat.Ann. tit. 12, § 1601) must be brought within one year after the death (Pa.Stat.Ann. tit. 12, § 1603). A survival action (Pa. Stat.Ann. tit. 20, § 320.603), like other claims for personal injuries, must be brought within two years (Pa.Stat.Ann. tit. 12, § 34 and tit. 12, § 1603). At common law, all causes of action abated at death, Johnson v. Peoples First Nat. Bk. & Tr. Co., 394 Pa. 116, 123, 145 A.2d 716 (1958). And the amendment of the caption and "substitution" of parties permitted in August of 1967 could not retroactively validate the proceedings, if there was no pending action to be amended. Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597 (1935). Thus the present motion makes it necessary to decide whether or not this action was commenced on behalf of the decedent during his lifetime. This is a question to be decided according to federal law. Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); Mahan v. Ohio Auto Rentals Co., 207 F. Supp. 383 (D.C.Ohio, 1962). "A civil action is commenced by filing a complaint with the court." Fed.R. Civ.P. 3. This means "filing [it] with the clerk of court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk." Fed. R.Civ.P. 5(e). Fed.R.Civ.P. 77(a) provides that "The district courts shall be deemed always open for the purpose of filing any pleading or other proper paper * ."[2] There is no local rule in this district establishing Saturday office hours for the clerk's office; as provided in Rule 77(c), the office is normally closed on Saturdays. The question of how pleadings can be filed when the clerk's office is closed does not often arise, largely because of the well-nigh universally established methods of computing time for limitations and related purposes, whereby a filing due on Saturday is regarded as timely if accomplished on Monday following. See, e. g., Rule 6(a) Fed.R. Civ.P.; Pa.Stat.Ann. tit. 46, §§ 538-540; Jones & Laughlin Steel Corp. v. Gridiron Steel Co., 382 U.S. 32, 86 S. Ct. 152, 15 L. Ed. 2d 26 (1965); Rupe v. State Public School Building Authority, 245 F. Supp. 726 (W.D.Pa.1965). 527 This principle of time-computation sheds no light on the present problem, however. To provide for flexibility in computing the expiration of a specified period of time measured from a known reference-point is one thing; to pretend to lengthen a man's life is quite another. The fixed reference-point in our case is at the end of the time period, not the beginning. Mr. Freeman's capacity to commence a law-suit, or to authorize, expressly or by implication, his wife to do so for him, ended at 12:20 p. m. on Saturday, March 13, 1965. The issue here is, as previously stated, had this action been "commenced" by that time? It is self-evident that the court could not be deemed "always open" for the filing of pleadings (Rule 77(a)) unless it were possible to file papers while the clerk's office is physically closed. Accordingly, it is settled law that delivery of a pleading to a proper official is sufficient to constitute filing thereof. United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L. Ed. 897 (1916); Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939). In Greeson v. Sherman, 265 F. Supp. 340 (D.C.Va.1967) it was held that a pleading delivered to a deputy clerk at his home at night was thereby "filed." But it is also reasonably clear that after-hours delivery to the clerk's office can constitute "filing", even though no one is present to receive, or learn about, the papers in question. In Hetman v. Fruit Growers Express Co., 200 F. Supp. 234 (D.N.J.1961), a complaint mailed at 5:00 p. m. on the last day, which reached the court's mailbox before midnight, was held timely filed. In Johnson v. Esso Standard Oil Co., 181 F. Supp. 431 (W.D.Pa.1960) the same result was reached where the complaint was delivered to the clerk's post-office box before midnight on the final day. See also Johansson v. Towson, 177 F. Supp. 729 (M.D.Ga.1959). In Central Paper Co. v. Commissioner of Internal Rev., 199 F.2d 902, 904 (6th Cir. 1952), it was held that a complaint was deemed filed when placed on a ledge near the mail receptacle of the court (the mailbox was too small). Perhaps the closest factual analogy to the present case was presented in Owens-Illinois Glass Co. v. District of Columbia, 92 U.S.App.D.C. 15, 204 F.2d 29 (1953). In that case, a petition for review was filed with the Board of Tax Appeals shortly before the office closed on the last day of the appeal period. Thereafter, a representative of the opposing side sought to file a cross-appeal after the office was closed. He contacted a Board member by telephone and, with his consent, slipped the cross-petition under the door of the Board's office, about one hour after closing-time. The document was found that night by a charwoman. Initially, the cross-petition was stamped "filed" as of the following morning (June 1), but this notation was later changed, on petition, to the previous day (May 31). The Court of Appeals held that the cross-petition was timely filed. The foregoing authorities permit the conclusion that if plaintiff's messenger had deposited the complaint in the clerk's mail-slot or slipped it under the door of the clerk's office, as soon as he arrived at the courthouse, the action would have been "commenced" during decedent's lifetime. Similarly, if he had delivered the complaint to the deputy clerk, or to a member of this Court, before 12:20 p. m., it is clear the filing would have been timely, even though the formal stamping and docketing did not occur until later. What plaintiff's representative actually did has some of the attributes of each of these alternatives but does not fully square with either; and the question is whether he "fell between the two stools." I recognize that a law-suit must be more than a gleam in the eye of counsel before it can be regarded as validly pending. At some point, procedural informality merges into and becomes a defect in substance. But under all of the circumstances of this case, I have concluded that the action was "commenced", *528 within the meaning of Rule 3, during Mr. Freeman's lifetime. The plaintiff's wife had authority to act for him under the emergency conditions then prevailing. Her intention to file suit was clearly manifested. The complaint was prepared and fully executed. Both she and her counsel proceeded with amazing dispatch, and did all that could reasonably be expected to lodge the papers with the clerk for filing. A proper official was informed by telephone. The complaint was delivered to the courthouse. All of this occurred before the plaintiff died. In light of the "always open" language of the statute and Rule 77(a), I believe it would violate the spirit of the rules and the intent of Congress to hold that the fact that the messenger waited in the corridor for the deputy clerk to arrive, instead of slipping the papers under the door, deprived the plaintiff of his day in court. This is undoubtedly a borderline case, and the result expressed above stretches the definition of "filing" to perhaps the utmost limits consistent with basic procedural requirements. The fact that both sides, for more than four years, proceeded on the assumption that the complaint was duly filed and the action validly pending, is a factor which makes it less difficult for me to adopt this expanded definition. The defendant is not prejudiced in any real sense, but merely deprived of a recently-discovered possible technical defense.[3] One further aspect of the case requires mention. It would perhaps have been possible to conclude that the defendant's acquiescence estops the defense from asserting the statute of limitations, and that the administratrix should therefore be permitted to maintain her action, as one duly instituted after the decedent's death, with the measure of damages changed accordingly.[4] Another view might be that whereas Mrs. Freeman thought she was acting as agent for her husband in starting suit, she was really, after 12:20 p. m., acting on behalf of his estate and in her own right; and the grant of letters of administration to her in 1967 merely converted a de facto status into a de jure status. Both of these approaches would require one to ignore the nature of the claim asserted in the complaint, and the parties named therein. More significantly, both approaches are based in part upon the fortuitous circumstance that the widow, rather than someone else, was appointed administratrix. I have therefore rejected both these approaches. For the foregoing reasons, I have concluded that the complaint in this action should be deemed to have been filed as of 12:15 p. m. on March 13, 1965, and that the defendant's motion for summary judgment should be denied. NOTES [1] The State statutes are "adopted" to supplement the general maritime law in this situation. Levinson v. Deupree, 345 U.S. 648, 652, 73 S. Ct. 914, 97 L. Ed. 1319 (1953); The Tungus v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503, 3 L. Ed. 524 (1958). [2] See also 28 U.S.C. § 452. The court's power to act is continuous; of course, in view of the specific reference to the filing of pleadings, and the duties of the Clerk in that regard (Rules 3, 77(c), 79), it is clear that the Clerk's power to act is likewise continuous. [3] Fed.R.Civ.P. 1 requires application of the procedural rules "to secure the just, speedy, and inexpensive determination of every action" (emphasis added). Technicalities are no longer accorded primary importance. Schaedler v. Reading Eagle Publication, Inc., 370 F.2d 795, 798 (3d Cir. 1967). [4] Cf. Radobersky v. Imperial Volunteer Fire Dept., 368 Pa. 235, 81 A.2d 865 (1951); Murray v. Philadelphia Transportation Company, 359 Pa. 69, 73-74, 58 A.2d 323 (1948).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509552/	465 A.2d 191 (1983) STATE v. Gerald M. TILLINGHAST and Harold L. Tillinghast. No. 80-181-C.A. Supreme Court of Rhode Island. September 1, 1983. 192 Dennis J. Roberts II, Atty. Gen., Stephen R. Famiglietti, Asst. Atty. Gen., for plaintiff. Joni Seplocha, Cranston, for Gerald Tillinghast. Joseph A. Bevilacqua, Jr., Providence, for Harold Tillinghast. OPINION KELLEHER, Justice. The defendants, Gerald M. Tillinghast and Harold L. Tillinghast, are brothers. Back in November 1978 Gerald worked for the city of Providence as an environmental-control inspector and Harold managed a restaurant situated in Providence on Broad Street. Today, the brothers are in prison following a Superior Court jury verdict which found that they murdered one George Basmajian on November 30, 1978, and that they had in their possession at that 193 time a stolen car, specifically, a 1974 Mercury sedan. Hereinafter we shall refer to the brothers either by their family name (Tillinghasts) or by their respective first names (Gerald or Harold) and to the deceased by his last name (Basmajian). Today, Vincent P. Vespia, Jr., is the chief of South Kingstown's police department. However, on the afternoon of November 30, 1978, he was a lieutenant in the detective division of the Rhode Island State Police. His assignment on this particular day was to serve as a member of a surveillance team that was composed of members of both the State Police and the Federal Bureau of Investigation. The subject of the day's surveillance was Basmajian. The team's membership varied. At one point on the day in question, it comprised six officers. Thereafter, it was reduced to four, and later in the day the team was further reduced to three. The mission of the surveillance team was, in the words of one of its members, State Police detective Lieutenant Thomas C. Griffin, to take a periodic look at "different underworld figures to see what their activities are." On November 30, 1978, surveillance began at 8 a.m. as Lieutenant Griffin in one unmarked car and FBI agent Robert M. Hargraves in another unmarked vehicle took up strategic positions near Basmajian's Johnston home. The record indicates that there was no activity during the morning but that during the afternoon Basmajian and his wife were observed as they left their residence and traveled to Providence to the Registry of Motor Vehicles. Mrs. Basmajian was the driver. She was driving a 1978 Lincoln Continental. When the Basmajians left the registry office, the surveillance team consisted of Lieutenants Vespia and Griffin and Philip G. Reilly, an FBI agent assigned to the Bureau's Providence office. The trio followed the Basmajians as the husband, now acting as the chauffeur, drove away and returned to Johnston to the home of Mrs. Basmajian's father. Later, Basmajian picked up a friend, David Cianci, in the Thornton section of Johnston and made his way with Cianci to an establishment called Michael's Lounge at 125 Broadway. It was estimated that Basmajian arrived at the lounge somewhere within the 5:45 to 6 p.m. time frame. As the duo entered the lounge, Lieutenant Vespia noticed that Gerald's 1975 Lincoln Continental was parked alongside the northerly curb of Broadway directly in front of the bar. About fifteen minutes after their arrival, Basmajian and Cianci left the bar and the Broadway area. They were watched as they entered a restaurant situated in Johnston's Thornton area. Later, at 6:45 p.m. Basmajian left Cianci, entered his Lincoln, and returned to Michael's Lounge. It should be noted that the members of the surveillance team were dressed in civilian clothes, driving unmarked vehicles, and in constant electronic touch with each other. The State Police were also using binoculars. Lieutenant Vespia was parked on the southerly side of Broadway just west of the intersection of Broadway and Dean Street. As he watched Basmajian and Gerald emerge from the lounge, he noticed that Gerald was wearing a golf-type cap and a dark, three-quarter-length jacket that had gold lettering on the back. After Basmajian and Gerald had completed their sidewalk conversation, Basmajian walked over to his Lincoln Continental, which was now parked alongside the southerly side of Broadway, and drove off. At this point, the team decided to split up, with Agent Reilly and Lieutenant Griffin keeping an eye on Basmajian and Lieutenant Vespia remaining in the Broadway area. At approximately 7:21 p.m., Lieutenant Vespia observed Gerald as he walked out of the lounge to a nearby phone booth. After making a telephone call, he returned to the lounge. Later, at 8:05 p.m., Gerald, who had been pacing up and down the sidewalk in front of the lounge, was seen to cross over to a small parking lot situated next to the Providence headquarters of the Internal Revenue Service. There he met his brother, 194 Harold, who had arrived in his Cadillac Eldorado. After a brief conversation, the Tillinghasts returned to the lounge. Basmajian then reappeared on the scene and this time parked his vehicle on Barclay Street, a very narrow street situated just west of the lounge. The trunk portion of the Continental could be clearly seen by Lieutenant Vespia. Basmajian had changed his clothes. Earlier he had been attired in a brown, three-piece suit, but as he entered the lounge at 8 p.m. he was wearing dark trousers and a black jacket with white sleeves. Basmajian and Gerald were observed as they came out and examined the interior of the trunk of Basmajian's vehicle. Gerald was wearing a golf cap, and the lettering on his jacket was now legible it said, "Brass Rail." It soon became apparent to Lieutenant Vespia that Basmajian and Gerald were about to enter Basmajian's Lincoln and leave the area. The lieutenant, in attempting to establish a new point of surveillance, made a series of turns and ended up traveling north on Dean Street. As he approached the intersection of Broadway and Dean Street, the green light was in his favor so he turned westerly toward Olneyville. As he made the turn, the lieutenant noticed that the first car in line at the red light halting traffic on Broadway was Basmajian's. After traveling about two blocks, Lieutenant Vespia glanced into the rear-view mirror just in time to see Basmajian negotiating a right turn with Gerald sitting alongside him. The lieutenant took his next right, but the Lincoln was nowhere to be seen. He thereupon notified Griffin and Reilly that he no longer had the Lincoln under surveillance. At this time, Reilly and Griffin were in Johnston. Upon receiving the communication from Lieutenant Vespia, Reilly checked the area near Basmajian's residence while Griffin reconnoitered the Silver Lake section of Providence. However, in due course the entire team headed toward an area east of Elmwood Avenue in Cranston near a social club that Basmajian was known to frequent. Lieutenant Vespia was the first to arrive in Cranston, and he assumed a surveillance point in the parking lot of a bowling alley situated on the easterly side of Elmwood Avenue in Cranston. At approximately 9 p.m., he observed a 1974 yellow Mercury sedan come out from behind the bowling alley and pass directly in front of him. As the vehicle passed by him, proceeding at approximately 5 miles per hour, the officer observed Gerald driving, Harold sitting on the passenger side of the front seat, and Basmajian occupying the right-hand side of the back seat. The lieutenant began following the Mercury and at the same time notified Reilly and Griffin of what was happening. From a position one or two car lengths behind the Mercury, Lieutenant Vespia proceeded to follow Gerald, who headed north on Elmwood Avenue, east on Park Avenue, north onto Route 10, and south onto Interstate Route 95. As Lieutenant Vespia followed the Mercury along Route 95, he was able to see three figures sitting in the car, two in the front seat and one in the back. When the Mercury approached exit ramp No. 13, it turned to the right and entered a roadway best known as the airport connector. This highway permits a southbound motorist either to travel to Theodore F. Green Airport or to come out onto Post Road in Warwick. The southbound motorist who exits at this point first turns to the right and, after traveling a short distance, negotiates a rather long curve to the left as the roadway turns toward the east, crosses over Route 95, and heads toward the airport. As a vehicle approaches the passenger terminal, the road once again begins to curve. A series of strategically placed traffic islands allows the motorist either to proceed to a parking area or to travel out onto Post Road. Lieutenant Vespia followed the Mercury as it entered the connector, and as he was negotiating the left-hand curve, he momentarily lost sight of the Mercury because the state had erected a snow fence some five to six feet in height along the divider that separates the airport-and-Post-Road-bound 195 traffic from other motorists who are proceeding along the connector on the other side of the divider and exiting southerly onto Route 95. The connector was thus constructed so as to allow two lines of traffic to proceed on either side of the divider. As Vespia regained sight of the Mercury, he was joined by Agent Reilly. They switched positions; Reilly became the team leader, and Vespia dropped back to second position. The operator of the Mercury proceeded toward the Post Road exit. The traffic light at the Post-Road-airport-connector intersection turned red. The Mercury came to a halt; Agent Reilly stopped behind the Mercury; Lieutenant Vespia then came to a halt behind Reilly; and bringing up the rear was Lieutenant Griffin. Reilly and Vespia both realized that the back-seat passenger could no longer be seen. At that time the only visible occupants of the Mercury were the driver and the front-seat passenger. It was now approximately 9:15 p.m. When the light turned green, the Mercury turned left onto Post Road, and at this point Lieutenant Vespia observed Gerald behind the wheel, still wearing his golf cap. After turning left onto Post Road, the Mercury immediately made a right-hand turn onto Fullerton Street. The surveillance team continued along Post Road because, in Lieutenant Vespia's words, "* * * we would have been made. * * * That's a police term for identified." After a few minutes, the team decided to survey various portions of the area west of Post Road. At 9:20 p.m. Agent Reilly radioed his colleagues that he had discovered the Mercury. It was found in a parking lot a block away from Fullerton Street behind the premises of a car-rental agency. When the officers looked into the Mercury, they saw Basmajian lying on the back seat. He was dead, blood still "gushing" from a "huge head wound." After a brief discussion, Vespia and Reilly left the scene in Vespia's car and headed for the Cranston social club. Griffin remained on the scene and notified State Police headquarters of the team's discovery. The social-club visit proved unproductive so Vespia and Reilly went to Michael's Lounge. They arrived at approximately 9:55 p.m. After entering the premises, they observed the Tillinghasts sitting at a table. They were arrested and taken to State Police headquarters. When the police and their quarry arrived at headquarters, Gerald was wearing his golf cap and his "Brass Rail" jacket. Lieutenant Vespia told the jury that when he looked at the sleeve of the jacket, he noticed it was wet with what appeared to him to be a "quantity" of blood. Subsequent investigation revealed that the Mercury had been stolen during the afternoon of March 30 from a garage situated in Providence at 757 Manton Avenue. This address was approximately one mile from the address used by the Tillinghasts. Basmajian's Lincoln was found in the bowlingalley parking lot. A medical examiner testified that the deceased had received nine gunshot wounds, three in the front torso and six in the right side of the face. He was of the belief that it was much more likely that the shots to the torso preceded the shots to the head and that it was quite unlikely that the driver, while going around the curve, could have shot the back-seat passenger. He also explained that his findings were consistent with the belief that the nine shots had emanated from the passenger side of the car. The firearms expert from the FBI concluded that a.38-caliber revolver was the murder weapon. His tests indicated that all nine bullets had been fired from the same weapon, and he then explained that most .38-caliber revolvers hold six bullets, some contain five, but none has a nine-cartridge capacity. Both Gerald and Harold testified, and they insisted that they had nothing to do with the homicide. They claim that they were both at the lounge at the time the Mercury was traveling south on Route 95. A number of the lounge's clientele testified 196 in support of the Tillinghasts, insisting that on the evening of November 30, 1978, they were miles away from the airport connector. Gerald also presented a number of expert witnesses who took exception to the conclusions expressed by the medical examiner and several experts employed by the FBI. In their respective appeals Gerald and Harold have raised several issues, all of which relate to rulings made by the trial justice in (1) his consideration of the admissibility of certain evidence, (2) the charge to the jury, and (3) Harold's motion for a new trial. One of the defense witnesses was Edmund DiMeglio. He is a cinematographer of some thirty years' experience. In July of 1979 he filmed a car similar to the 1974 Mercury, and like the Mercury, occupied by two individuals, turning left off the airport connector onto Post Road. The film was shot from four separate vantage points, each of which attempted to approximate the relative positions held by the surveillance team on the evening of November 30, 1978. Another section of the film, taken from the intersection of Dean Street and Broadway, showed two people standing in front of Michael's Lounge, apparently reproducing what Lieutenant Vespia indicated that he had seen on the night of the murder. Trial counsel for Gerald told the trial justice that the sole purpose for using the film was to assist the jury in better understanding the evidence. Before us, Gerald's appellate counsel insists that the movie would have impeached the testimony given by Lieutenant Vespia and Agent Reilly. The trial justice viewed the eight-minute footage taken during the daylight hours of July of 1979 and ruled that, in his opinion, this evidence would be of no assistance "whatsoever" to the jury, pointing out that the jury had already viewed at night the areas in question. The basic principles that govern the admissibility of photographs also govern the admission of motion pictures. First, it must be shown that the film is fair and accurately represents or portrays the events in question. State v. Pulphus, 465 A.2d 153 (R.I. 1983). Whether sufficient foundation has been established for its admission is a question directed at the sound discretion of the trial court. State v. Deering, 291 N.W.2d 38 (Iowa 1980); 3 Wharton, Criminal Evidence, § 639 (13th ed. 1973); 3 Wigmore, Evidence, § 789(b) (1970 ed.). Where, as here, the movie in question is a reconstruction of certain events and purports to show what a witness could or could not have seen, evidence must be adduced demonstrating that conditions at the picture-taking time were substantially similar to those that existed at the time in question. State v. Johnson, 291 Minn. 407, 91, 192 N.W.2d 87, 91 (1971); 3 Scott, Photographic Evidence, § 1322 at 185-86 (1969 ed.); 3 Wigmore, Evidence, § 798 (1970 ed.). Also, as with all other evidence, the party attempting to introduce the evidence must demonstrate that it is relevant, that is, it must tend "`to prove or disprove a point provable in the case.'" State v. Pulphus, at 157. Here, we cannot fault the trial justice. The events at the Post-Road-airport-connector intersection took place at night, and a portion of the available illumination came from a nearby gas station. In contrast, the cinematographer worked in the daylight and at one time apparently pointed his camera into the sun. His camera-lens nighttime portrayal of the sidewalk scene cannot pass muster because nobody took the trouble to find out what were the power-of-magnification capabilities of the binoculars used by Lieutenant Vespia. There was also a dispute as to the accuracy of the placing by the cinematographer of Reilly's vehicle at the intersection, and there was no evidence that the model cars were of the same height, width, and window space as those used by the surveillance team. One of the state's experts was a special agent with the FBI whose specialty 197 is the comparison and matching of human hairs. During his direct testimony, this witness reported that he had found hairs inside the yellow Mercury which were microscopically similar to sample hairs taken from Gerald and Harold. This discovery established the fact that the Tillinghasts were inside the Mercury, if not at the time of the murder, then at some other time that was not explained. On appeal, Gerald's appellate counsel contends that the trial justice should have passed the case because of the prosecution's failure to furnish the defense with certain "exculpatory" evidence that she described as "a test on hair samples from the victim's car." This claim completely misses the mark because the record indicates that the motion to pass came after the agent had testified in redirect examination that he had compared a known sample of Gerald's hair with hairs found by the State Police in Gerald's Lincoln Continental rather than in Basmajian's Lincoln. Obviously, the fact that Gerald's hair was found in his own car is neither exculpatory nor prejudicial to him. Since he owned the Lincoln, one would expect to find his hair in his car. The denial of the motion to pass was well warranted. In order to sustain a conviction on the receiving-of-stolen-goods counts, the state was required to show that the 1974 yellow Mercury had a November 30, 1978 value in excess of $500.[1] In seeking to sustain this burden, the state produced three witnesses, none of whose names was furnished to Harold, who had taken advantage of Rule 16 of the Superior Court Rules of Criminal Procedure and asked the state to furnish him with a list of the names of the witnesses it expected to call at trial. The state had listed the Mercury owner's name, but she had died prior to trial. The deceased's son testified during direct examination that his mother's car had been stolen. However, in cross-examination he conceded that there was a possibility that his mother on November 30, 1978, had allowed somebody to take the car. Thus, the state, in order to counter this testimony, produced a Providence police officer and a State Police civilian employee. The officer testified that on November 30, 1978, he responded to a call to the deceased's home on Manton Avenue in Providence and received a report that her car had been stolen. The civilian employee testified that once the department had received a teletype announcement relative to the theft of the 1974 Mercury, the report of the theft was filed with the National Crime Information Center. The third witness was a vice president and general manager of a Providence automobile agency. He told the jury that on the day of its theft, the yellow Mercury had a retail value of $1,900 and a wholesale value of $1,300. As this court noted in State v. Concannon, R.I., 457 A.2d 1350, 1353 (1983), the imposition of a sanction for violation of Rule 16 involves the discretion of the trial justice; and in the fashioning of such a sanction, consideration should be given to the reason for the nondisclosure, the extent of the prejudice to the opposing party, the feasibility of rectifying by a continuance, and any other relevant factors. Here, the necessity for the appearance of the police officer and the civilian employee was totally unforeseeable. The prosecutor conceded that he had forgotten about the necessity of establishing the value of the car. We fail to see how the defense was prejudiced by the events in question. The only question concerned the car's value, and when the representative of the automobile dealer gave its book value, no one took issue with his report or requested a continuance to dispute his testimony. In State v. Silva, 118 R.I. 408, 374 A.2d 106 (1977), we faulted the trial justice for excluding defense testimony on the basis that it failed to comply 198 with the provisions of Rule 16 and noted that barring a party from calling a witness is a drastic sanction to be imposed in a trial where the goal is the ascertainment of truth. What was said in Silva is equally apropos to the [19] case at bar. We have no doubt that the Tillinghasts were well aware that the yellow Mercury that had been reported stolen during the afternoon of November 30, 1978, had a value well in excess of the $500 limit set forth in the statute. In his charge to the jury, the trial justice, in defining the crime of murder, told the jury that "murder" is the "unlawful killing of a human being with malice aforethought." "Malice aforethought," he explained, is also called "premeditation." "Malice aforethought is the conscious design or intent to kill. That is that, before the killing, the defendant thought of doing it, and acted upon that thought." Harold now complains that the trial justice should have defined the term "malice." We shall not consider this contention because the defense failed to comply with Super. R. Crim. P. 30 and its requirement that a party objecting to the charge must inform the trial justice in clear and distinct language the matter in regard to which objection is being lodged and the grounds for objection. Otherwise, the objection will not be considered on appeal, for, as this court has so frequently said, if a defendant has neither objected to the charge nor requested [20] a different one, the charge as given becomes the law of the case. State v. Romano, R.I. , 456 A.2d 746 (1983); State v. Collazo, R.I. , 446 A.2d 1006 (1982); State v. McAssey, R.I. , 432 A.2d 683 (1981). At trial nobody lodged an objection to the portion of the charge now being challenged. After explaining to the jury that a defendant's intent can be determined from a consideration of one's conduct, the trial justice then continued and told the jury that on the evidence before it, the jury had but one choice in the event it voted for a guilty verdict; the verdict that would be returned in such event would be murder in the first degree. The Tillinghasts now claim that the trial justice should have afforded the jury an opportunity to return a second-degree-murder verdict. Recently, in State v. Innis, R.I., 433 A.2d 646, 651 (1981), this court emphasized that instruction should not be given on the lesser degree of murder or manslaughter when there is no evidence to support such a verdict. As this court has noted, the critical difference between the two degrees of murder is the time between the formation [21] of the homicidal intent and the killing itself. If the premeditation is more than momentary, the murder is one of first degree and no charge on second degree is necessary; if the premeditation could be less, then the offense may be murder in either the first or second degree and a charge on both must be given. State v. Myers, 115 R.I. 583, 591, 350 A.2d 611, 615 (1976). The critical evidence in regard to this phase of the Tillinghasts' appeal came from the medical examiner, Dr. William Q. Sturner. He indicated that Basmajian was first shot three times in the torso and then six times in the head. It was his opinion that all nine shots originated from a point within three feet of the deceased. When the medical examiner was asked how long Basmajian had lived after sustaining the nine wounds, the witness replied by first pointing to one of the chest wounds in a photograph and then saying that death had occurred within a matter of minutes. Thus, it is clear that even though death was imminent, bullets continued to be fired from the front seat. This evidence, plus the observations made during the ongoing surveillance, clearly indicates that Basmajian's death was not a sudden [22] shooting but a well-planned execution that, unfortunately for the Tillinghasts, failed to take into consideration the fortuitous fact that Basmajian was to be the subject of the surveillance team's scrutiny on November 30, 1978. Thus, the trial justice's refusal to charge on second-degree murder was unquestionably correct. 199 The trial justice has also been faulted for his refusal to charge the jury that since the defense of an alibi was offered, it was the state's burden to prove beyond a reasonable doubt that Gerald and Harold "were not at Michael's Lounge on the evening of November 30, 1978." We would first point out that the request misrepresents the state's position. The state has always conceded that there were times during the evening of November 30, 1978, when the Tillinghasts were in the lounge. The dispute was over the times when they allegedly left the premises. Obviously, the request is based upon the Supreme Court's admonition that the prosecution must prove every element of the crime charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). However, subsequently, in Patterson v. New York, 432 U.S. [*23] 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the Court made it clear that the burden of persuasion on affirmative defenses may be shifted to the defendant and went on to define "affirmative defense" as one that "does not serve to negative any facts of the crime which the State is to prove in order to convict * ." Id. at 206-07, 97 S. Ct. at 2325, 53 L. Ed. 2d at 290. In State v. Alexander, 161 W. Va. 776, 245 S.E.2d 633 (W. Va. 1978), the West Virginia Supreme Court upheld the trial justice's instruction which charged that where the state had established a prima facie case and the defendant had relied upon the defense of an alibi, the burden was upon the defendant to prove the alibi, not beyond a reasonable doubt or by the preponderance of the evidence, but by such evidence as would, when considered with the evidence as a whole, create in the minds of the jurors a reasonable doubt in regard to the accused's guilt. However, in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir. 1982), the Court of Appeals faulted the Alexander type of charge, vacated Adkins' conviction, and pointed out that an alibi negatives every fact necessary to prove the crime because the defendant [24] could not commit the offense if he was elsewhere at the time, and in the process the court rejected the West Virginia court's characterization of the alibi as an affirmative defense. Here, however, the trial justice did not travel the path taken by the West Virginia court. He told the jury in simple and direct language that the burden was upon the state to prove beyond a reasonable doubt the essential elements of the offenses charged. He also reminded the jury that the presumption of innocence remained with the Tillinghasts until such time as each juror was persuaded by proof beyond a reasonable doubt as to the brothers' joint guilt or individual guilt. The trial justice then also stressed that "the defendant does not have to prove his innocence. He does not have to prove anything. The burden of proof in a criminal case is on the State and never shifts to the defendant." After explaining the various elements of the murder and receiving counts, the trial justice once again admonished the jurors that if it was their unanimous belief that the state had proved defendants guilty beyond a reasonable doubt, they should return guilty verdicts but, by the same token, if they believed [25] that the state had failed to prove the guilt of one or both of the defendants beyond a reasonable doubt, they should without any hesitation return one or two not-guilty verdicts. It is clear from our consideration of the entire charge that the jury was well aware that even though the Tillinghasts had presented evidence indicating that they were some place other than at the scene of the crime, no burden had been cast upon them. The jury was quite cognizant that the state was still required to establish every element of the crimes charged beyond a reasonable doubt. One such element was proof by the state of the Tillinghasts' presence in the yellow Mercury as it traveled along the connector, over Post Road, to the area behind the car-rental agency. The state, by proving its own case beyond a reasonable doubt, necessarily disproved the alibi evidence. Despite their assertions to 200 the contrary, no burden of proof whatever was imposed upon the Tillinghasts. The denial of Harold's new-trial motion merits little discussion. The trial justice, after an exhaustive review of the evidence that was adduced at a lengthy trial, quite properly classified the case as "one to be decided on credibility." He rejected the "alibi" testimony of the defense witnesses, who insisted that the Tillinghasts were at Michael's Lounge at the time Lieutenant Vespia was trailing the yellow Mercury south on Route 95 and along the airport connector. On the other hand, the trial justice believed the prosecution witnesses because they were credible. Lieutenant Vespia had said that Harold was a front-seat passenger when the Mercury passed by him in the bowling-alley parking lot. Agent Reilly also testified that as he waited at the red light behind the Mercury, he was able to see the front-seat passenger. He identified the passenger as Harold. The trial justice also said that he was convinced from the evidence adduced at the trial that Gerald and Harold were guilty as charged. There is no question but that the trial justice exercised his independent judgment and chose to believe the state's witnesses. We see no reason to question his belief, and we do not find that he overlooked or misconceived evidence or was clearly wrong in his denial of the motion for a new trial. The defendants' appeal is denied and dismissed, the judgments of conviction appealed from are affirmed, and the case is remanded to the Superior Court. BEVILACQUA, C.J., did not participate. NOTES [1] If an individual receives stolen goods that have a value in excess of $500, such individual is deemed to have committed a felony, but if the value does not exceed $500, the crime is deemed to be a misdemeanor. See G.L. 1956 (1981 Reenactment) § 11-41-5.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509554/	596 S.W.2d 271 (1980) SABINE PRODUCTION COMPANY, Appellant, v. FROST NATIONAL BANK OF SAN ANTONIO, Trustee, et al., Appellees. No. 1610. Court of Civil Appeals of Texas, Corpus Christi. February 28, 1980. Rehearing Denied March 27, 1980. 273 Robert B. Payne, Ronald G. Houdyshell, Payne & Spradley, Dallas, for appellant. John H. Tate, II, Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., Kip McKinney Espy, Fred C. Meyer, Jr., Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for appellees. OPINION BISSETT, Justice. This venue case involves an appeal by Sabine Production Company [Sabine], a corporation, from an order of the District Court overruling its plea of privilege to be sued in Dallas County, where its principal office was located, rather than in Live Oak County, where suit was filed. The plea of privilege, which involves questions of venue under Tex.Rev.Civ.Stat.Ann. art. 1995 §§ 5, 14, 23, 27 and 29a, arises out of a suit concerning royalty rights under a uranium lease covering land in Live Oak County. The controversy began with an action for trespass to try title and declaratory judgment brought by National Bank of Commerce of San Antonio and others [hereinafter collectively referred to as NBC] against Frost National Bank of San Antonio and others [hereinafter collectively referred to as Frost], the purpose of which was a judicial determination that a certain 1975 uranium lease was not subject to a 1944 pooling agreement concerning the same property. Subsequently, United States Steel Corporation [U. S. Steel], the present lessee under the uranium lease, asked for judicial resolution of the royalty rights pursuant to the 1975 uranium lease. 274 Frost then filed a counterclaim against NBC along with an "Original Claim" against U. S. Steel, Clay West Burns [C. W. Burns] and Sabine. The object of the counterclaim and "Original Claim" by Frost was multifaceted. First, Frost sought a declaratory judgment that the 1975 uranium lease was subject to the 1944 pooling agreement. Second, Frost attempted to impress a constructive trust upon its pro rata share of all past and future royalty payments under the pooling agreement for uranium produced under the uranium lease. Third, Frost, because of alleged fraud and breach of fiduciary duty, sought to recover actual and exemplary damages against Sabine (and others) to be computed upon the difference between the royalty formula expressed in the pooling agreement and the actual royalties received under the formula expressed in the uranium lease. Finally, Frost sought to have the uranium lease reformed to the terms and scope of the pooling agreement. After being brought into the controversy by Frost, Sabine filed a plea of privilege to be sued in Dallas County. Sabine is a Louisiana corporation with its principal place of business in Dallas County, Texas. Frost then filed a controverting plea alleging venue over Sabine in Live Oak County pursuant to the aforesaid subdivisions of the venue statute. Following a hearing at which only deposition and documentary evidence was presented, the trial court overruled Sabine's plea of privilege. Sabine attacks the order in four points of error. Sabine contends, in its third point, that Subdivision 5 of the venue statute does not permit Frost to bring the subject suit against it in Live Oak County. In order to sustain venue under Subdivision 5, the single fact that the party asserting venue is required to prove is that the defendant (in this case Sabine) contracted in writing to perform the obligation sued upon in the county of suit and that such instrument of writing expressly named that county, or a definite place therein, as the place where the obligation is to be performed. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942); Vahlsing, Inc. v. Esco, Ltd., 496 S.W.2d 652 (Tex.Civ.App. Corpus Christi 1973, writ dism'd). In its controverting affidavit, Frost urged venue under Subdivision 5 based upon the fact that the suit involved the breach of various duties concerning the 1944 pooling agreement. Sabine, however, was not a party to the pooling agreement nor did it ratify such agreement. Only a contract that has been entered into by a party or one authorized to bind him, or which has been assumed or ratified by him, can constitute the basis upon which to hold venue under Subdivision 5. Jordan v. Rule, 520 S.W.2d 463 (Tex.Civ.App.Houston [1st Dist.] 1975, no writ). Thus, venue over Sabine in Live Oak County is not sustainable if it is based, solely or in part, on the 1944 pooling agreement. Another written contract involved in the suit between Frost and Sabine is the 1975 uranium lease, to which Sabine is signatory. It is also Frost's contention that venue under Subdivision 5 can properly be based upon this written agreement. The resolution of this argument depends upon whether the obligation sued upon is expressly performable "in a particular county" as provided by Subdivision 5. Paragraph VIII of the lease states: "It is expressly and controllingly provided that all rentals, royalties and other payments of any kind and character, provided for in this Lease shall be payable in Live Oak County, Texas, except that if the depository bank (or any successor depository bank) shall be located in any county other than Live Oak County, Texas, then the annual rentals and royalties and other such payments herein provided for may be paid or tendered to such depository bank, as herein provided notwithstanding that such depository bank is not located in Live Oak County, Texas." (emphasis added). The emphasized portion of Paragraph VIII of the lease clearly allows for the possibility of payment in counties other than Live Oak. A contract providing for payment in more than one county is not performable "in a particular county" within the meaning 275 of Subdivision 5. Dean v. Paula Stringer Realtors, Inc., 583 S.W.2d 954 (Tex.Civ.App. Dallas 1979, no writ); Albin v. Hughes, 304 S.W.2d 371 (Tex.Civ.App.Dallas 1957, no writ). Hence, venue over Sabine is not sustainable under Subdivision 5. Sabine's third point of error is sustained. By its fourth point of error, Sabine contends that venue in Live Oak County cannot be sustained under Subdivisions 23 and 27 because there is no evidence of each element of a cause of action accruing in whole or in part in Live Oak County. A plaintiff who controverts a plea of privilege under Subdivisions 23 and 27 on the basis that the cause of action or a part thereof arose or accrued in the county where suit was filed, must plead and prove a complete cause of action against the corporate defendant. Kroger Co. v. Benavides, 486 S.W.2d 877 (Tex.Civ.App.Corpus Christi 1972, no writ). A cause of action is established by facts which show: 1) plaintiff's primary right and 2) defendant's act or omission which violates that right. Socony Mobil Co., Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App. Corpus Christi 1974, no writ). It is not sufficient that plaintiff merely establish a prima facie case. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (Tex.Comm'n App. 1941, opinion adopted). Frost alleged a cause of action against Sabine based on interference with contract and fraud. Texas recognizes the tort of intentional interference with contract rights. When a person knowingly induces another to breach his contract with third parties, the third parties have a right of action against the person causing the breach for any resulting damages. Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800 (Tex.Sup.1903); Woodruff v. Bryant, 558 S.W.2d 535 (Tex.Civ.App.Corpus Christi 1977, writ ref'd n.r.e.). In the case at bar there must be evidence that Sabine actually caused or brought about a breach of the 1944 pooling agreement, Woodruff v. Bryant, supra, and that the actionable conduct was willful and intentional with actual knowledge of the contract in question. Frost National Bank v. Alamo National Bank, 421 S.W.2d 153 (Tex.Civ.App.San Antonio 1967, writ ref'd n.r.e.). We hold that Frost has failed to establish these elements by a preponderance of the evidence. Texas also recognizes undue influence as a species of fraud. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (Tex. Sup.1954); Finch v. McVea, 543 S.W.2d 449 (Tex.Civ.App.Corpus Christi 1976, writ ref'd n.r.e.). This is basically what Frost alleged in its claim against Sabine. Undue influence may be exercised by fraud or by influence of the strong over the weak. Curry v. Curry, supra; Smith v. Mann, 296 S.W. 613 (Tex.Civ.App.San Antonio 1927, writ ref'd). Although undue influence is a species of fraud, evidence will not support a legal conclusion of undue influence unless it will support a legal conclusion of fraud. Curry v. Curry, supra; Finch v. McVea, supra. The essential elements of actionable fraud are enumerated in Custom Leasing, Inc., v. Texas Bank & Trust Co. of Dallas, 516 S.W.2d 138, 143 (Tex.Sup.1974), and in Sawyer v. Pierce, 580 S.W.2d 117, 124 (Tex. Civ.App.Corpus Christi 1979, writ ref'd n.r.e.). We see no reason to republish those elements. We hold that Frost failed to prove these elements. Venue as to Sabine cannot be held in Live Oak County under Subdivisions 23 and 27. Sabine's fourth point is sustained. By its first point of error, Sabine contends that the trial court erred in overruling its plea of privilege based upon Subdivision 14. Venue facts which Frost had the burden to establish under Subdivision 14 are: 1) that the suit is one for the recovery of land or damages thereto, and 2) that the land, or a part thereof, is situated in the county where the suit is filed. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (Tex.Sup.1945). Whether the suit is to recover land or damages thereto is determined by the allegations in the plaintiff's petition. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (Tex. Sup.1955). 276 A royalty in minerals is an interest in land. Tennant v. Dunn., 130 Tex. 285, 110 S.W.2d 53 (Tex.Sup.1937); A right to a future royalty payment is an interest in land. Clyde v. Hamilton, 414 S.W.2d 434 (Tex.Sup.1967). However, once minerals have been severed from the reservoir or strata wherein they were originally contained, such minerals, including royalties thereon, become personalty. Lone Star Gas Co. v. Murchison, 353 S.W.2d 870 (Tex.Civ. App.Dallas 1962, writ ref'd n.r.e.); Chapman v. Parks, 347 S.W.2d 805 (Tex.Civ.App. Amarillo 1961, writ ref'd n.r.e.); Phillips Petroleum Co. v. Adams, 513 F.2d 355 (5th Cir. 1975). In this case, it is undisputed that the uranium lease and the pooling agreement cover lands situated in Live Oak County. It is conclusively established by the evidence that Sabine sold its entire interest in the uranium lease to U. S. Steel prior to the institution of this lawsuit. Therefore, Sabine does not own any present or future interest in the uranium lease upon which a constructive trust could be imposed, and could not be affected by the reformation of the uranium lease or by a declaratory judgment concerning the lease. Frost's only other claims at the time it brought Sabine into the case concern past and accrued royalties, which are claims for recovery of personalty computed to money equivalents. Such claims are not claims for the recovery of an interest in land within the meaning of Subdivision 14. Sabine's first point is sustained. By its second point of error, Sabine attacks Frost's attempt to establish venue in Live Oak County as to it through a combination of Subdivisions 14 and 29a. Subdivision 29a has been held to provide that whenever there are two or more defendants in a suit which is maintainable as to at least one such defendant in the county of suit by virtue of some exception to Article 1995, then such suit may also be maintained in such county as to all necessary co-defendants. Subdivision 29a is purely ancillary to other exceptions contained in Article 1995, and can never be invoked to fix venue in a given county independent of some other exception contained therein. It applies only to suits against two or more defendants, at least one of whom may be sued in the county under some other section of the venue statute. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (Tex.Sup.1944). It is established by the evidence that U. S. Steel is the present owner of the working interest in the uranium lease, and that C. W. Burns is the lessor thereof. The only question to be resolved in disposing of the second point is whether Sabine is a necessary party to the suit by Frost against U. S. Steel and C. W. Burns. To be a necessary party, Sabine's joinder in the Live Oak County suit must be necessary in order to afford Frost the complete relief to which it is entitled against U. S. Steel and C. W. Burns. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956). An analysis of Frost's pleadings shows that Frost seeks the following relief: (1) Actual and exemplary damages on the part of C. W. Burns for breach of fiduciary duty; (2) Actual and exemplary damages because of undue influence by U. S. Steel and Sabine in the inducement of C. W. Burns to sign the uranium lease; (3) All "past due accrued and prospective damages computed based on the difference between a full undivided one-sixteenth (1/16) royalty computed upon and paid as to the fair market value of production and sale of uranium from the Clay West Burns lands, and the amount of royalty which was actually paid, or may be paid in the future, pursuant to the terms of the Amendment of Mining Lease (the uranium lease)"; (4) Reformation of the uranium lease so as to fall within the terms of the pooling agreement; (5) A declaratory judgment as to the applicability of the provisions of the pooling agreement to the mining *277 lease concerning royalty to be paid pursuant to the production of uranium; and, (6) The impressing of a constructive trust upon "all past and future royalties and upon the mineral estate itself for the purpose of protecting their rights to recover said damages." Concerning the evidence, it is undisputed that at the time this lawsuit was instituted and at the time of the venue hearing, Sabine did not own any interest in the uranium lease. Therefore, Frost could obtain full and complete relief from U. S. Steel and C. W. Burns without joining Sabine as a defendant in the action to reform the uranium lease, to secure a declaratory judgment declaring the rights of the litigants, and to impress a trust on future royalties. There is no evidence that Sabine was in possession of any "past" royalties, which would be personalty and Sabine had nothing whatever to do with "future royalties." Consequently, venue cannot be sustained under Subdivision 29a in conjunction with Subdivision 14 on the theory that this is a suit for the recovery of land because, as noted, at all times pertinent to this appeal, Sabine had no interest in the land sought to be recovered. With respect to the other relief, the damages sought by Frost were money damages resulting from: 1) breach of fiduciary duty by C. W. Burns; 2) undue influence by U. S. Steel and Sabine in inducing C. W. Burns to sign the uranium lease; and 3) recovery of money for royalties paid on past production of uranium when computed in the proper manner. None of the monies sought were for "damages to land" within the purview of Subdivision 14. The requirements of Subdivision 14 were not met so as to sustain venue under Subdivision 29a. Sabine's second point is sustained. The judgment of the trial court is REVERSED and judgment is RENDERED that the plea of privilege of Sabine Production Company is sustained, and that the cause against it be transferred to Dallas County, Texas. REVERSED AND RENDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509538/	113 F.2d 194 (1940) UNITED STATES v. STANOLIND CRUDE OIL PURCHASING CO. SAME v. GULF OIL CORPORATION. SAME v. SINCLAIR PRAIRIE OIL CO. Nos. 1975-1977. Circuit Court of Appeals, Tenth Circuit. June 29, 1940. 195 A. F. Moss, of Tulsa, Okl., and F. W. Files, of Pawhuska, Okl. (Norman M. Littell, Asst. Atty. Gen., Harry W. Blair and Aubrey Lawrence, Sp. Assts. to the Atty. Gen., Lawrence S. Apsey and Frederick W. Whiteside, Attys., Department of Justice, both of Washington, D. C., C. S. Macdonald, of Pawhuska, Okl., and H. R. Young, of Tulsa, Okl., on the brief), for the United States. Ray S. Fellows, of Tulsa, Okl. (Donald Campbell, Clay Tallman, Guy H. Woodward, and Charles R. Fellows, all of Tulsa, Okl., on the brief), for Stanolind Crude Oil Purchasing Co. James B. Diggs, of Tulsa, Okl. (William C. Liedtke, Russell G. Lowe, Redmond S. Cole, C. L. Billings, and James B. Diggs, Jr., all of Tulsa, Okl., on the brief), for Gulf Oil Corporation. Summers Hardy, of Tulsa, Okl. (Edward H. Chandler, Paul B. Mason, and N. A. Gibson, all of Tulsa, Okl., on the brief), for Sinclair Prairie Oil Co. 196 J. C. Denton, R. H. Wills, J. H. Crocker, I. L. Lockewitz, and J. P. Greve, all of Tulsa, Okl., amici curiae. Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges. PHILLIPS, Circuit Judge. Stanolind Crude Oil Purchasing Company[1] is a corporation organized under the laws of Delaware. Sinclair Prairie Oil Company[2] is a corporation organized under the laws of Maine. Gulf Oil Corporation[3] is a corporation organized under the laws of Pennsylvania. Each is, and for many years has been, engaged in the purchasing of crude oil in the state of Oklahoma. On November 28, 1936, the United States commenced suits in equity against each of them to recover for three per cent of the oil run to such corporations and their predecessors from leases on the Osage Indian Reservation, under division orders executed by the lessees of the leases from which the oil was run and approved by the Superintendent of the Osage Indian Agency.[4] The causes were transferred to the law docket and an amended complaint was filed in each case. Section 1 of the Osage Allotment Act, approved June 28, 1906, 34 Stat. 539, provides for an approved roll of the Osage Tribe of Indians. Section 2 provides for the allotting of the lands in the Osage Reservation in severalty to the members of the Tribe listed on the roll. Section 3 provides that all minerals under the Osage Reservation are reserved from allotment and retained for the Tribe as a whole for a period of twenty-five years from April 8, 1906,[5] and that leases for all oil, gas, and other minerals may be made by the Osage Tribe of Indians through its Tribal Council, with the approval of the Secretary of the Interior and under such rules and regulations as he may prescribe, provided "that the royalties to be paid to the Osage tribe under any mineral lease so made shall be determined by the President of the United States." Section 4 provides that all royalty received from oil, gas, and other mineral leases shall be placed in the Treasury of the United States to the credit of the members of the Osage Tribe of Indians, as other moneys of said Tribe are to be deposited, and shall be distributed to the individual members of the Tribe according to the roll. Section 4 further provides that there shall be set aside from the royalties received from oil and gas not to exceed $50,000 per year for ten years for the support of schools on the Osage Indian Reservation. Section 5 provides that at the expiration of the trust period the minerals shall be the absolute property of the individual members of the Tribe according to the roll, or their heirs. Section 12 provides that all things necessary to carry the provisions of this act into effect, not otherwise therein specifically provided for, shall be done under the authority and direction of the Secretary of the Interior. On June 29, 1912, the Secretary of the Interior by a written communication to the President, recommended that the Osage Indian lands in Oklahoma be leased for oil and gas mining purposes, and that the royalties be fixed as follows: "On oil 16 2/3% of the gross proceeds of all oil produced." On July 1, 1912, President Taft approved the recommendation, thereby fixing the royalty at one-sixth of the gross proceeds of all oil produced. Regulations were adopted and promulgated by the Secretary of the Interior on July 3, 1912. They set forth in full the form of oil mining lease then required. Both that form of lease and § 24 of those regulations provided for the sale of oil through approved division orders. On July 27, 1915, President Wilson by executive order fixed the rate of royalty as follows: "The rate of royalty on oil to be one-sixth, except where the average daily production of producing wells on any quarter-section unit shall equal or exceed 100 barrels for calendar-month periods, the royalty on such wells to be one-fifth." On August 26, 1915, new regulations were promulgated by the Secretary of the Interior. These incorporated a form of Osage oil mining lease. The pertinent parts thereof read as follows: "The lessor * * * does hereby demise, grant, lease, and let * * * all the oil deposits * * * with the exclusive 197 right to extract, pipe, store, and remove oil. "The lessee agrees to pay or cause to be paid * * as royalty, the sum of 16 2/3 per cent of the gross proceeds from sales * * * unless the Osage tribal council, with the approval of the Secretary of the Interior, shall elect to take the royalty in oil; payment to be made at time of sale or removal of the oil, except where payments are made on division orders, and settlement shall be based on the actual selling price, but at not less than the highest posted market price in the Mid-Continent oil field on the day of sale or removal: * " "All sums due as royalty or damages shall be a lien on all equipment and unsold oil on leased premises." "All amounts due and payable under this lease shall be paid to the superintendent in St. Louis or Kansas City exchange, except that where such exchange cannot be procured, post office or express money orders will be accepted." Section 20 of the 1915 regulations in part reads as follows: "Royalties on all oil and gas produced in any month shall be paid on or before the 25th day of the month next succeeding, and the remittances shall be accompanied by sworn reports covering all operations, whether there has been production or not. Lessees shall show in this statement the total amount of oil and gas sold, and not merely their working interest * ." Section 64 of the 1915 regulations in part reads as follows: "The Superintendent may make arrangements with the purchasers of oil for the payment of the royalty, but such arrangements, if made, shall not relieve the lessee from responsibility for the payment of the royalty, should such purchaser fail, neglect, or refuse to pay the royalty when it becomes due: Provided, That no oil shall be run to any purchaser or delivered to the pipe line or other carrier for shipment, or otherwise conveyed or removed from the leased premises, until a division order is executed, filed, and approved by the superintendent, showing the lessee has a regularly approved lease in effect, and the conditions under which the oil may be run. * " With respect to the questions here presented the allegations of the three amended complaints are substantially the same. It will be sufficient to consider the allegations made in Stanolind's amended complaint. In the amended complaint in the Stanolind case it is alleged that the Osage Tribe of Indians is and was at all times mentioned in the complaint the owner of the petroleum beneath the surface of all the lands situate in Osage County, Oklahoma; that leasing of such lands was authorized and directed by Congress by the Act of June 28, 1906, and amendments thereto; that rules and regulations were promulgated by the Secretary of the Interior effective August 1, 1915, respecting the leasing of such land; that leases upon such lands and petroleum were executed by divers persons in the form prescribed by such rules and regulations; that Stanolind and its predecessors took, received, and acquired oil from lands owned by the Osage Tribe of Indians under division orders prepared by Stanolind, signed by the lessee of the land from which the oil was taken, and approved by the Superintendent; that such division orders contained the following provision: "Third: The Stanolind Crude Oil Purchasing Company shall deduct three percent from all oil received from wells into the pipe lines for its account on account of dirt and sediment, and, in addition, shall deduct one-twentieth of one percent, for each degree of heat above normal temperature, and oil shall be steamed when necessary to render it merchantable." It further alleged that Stanolind prepared such division orders and presented them to the Superintendent for approval and thereby represented to him "that there was three percent dirt and sediment in said oil"; that such representations contained in such division orders were false and were known to Stanolind to be false when it prepared such division orders and when it obtained approval thereof by the superintendent; that Stanolind knew all the oil was in fact merchantable, and the United States did not know such oil was merchantable or that such representations were false until about August 1, 1933; that such misrepresentations were made by Stanolind with the fraudulent intent and purpose of having the United States rely thereon, and with the knowledge that the United States would not know at the times of approval of such division orders that such oil did not contain three per cent of dirt and sediment, and that all of it was merchantable. 198 It is further alleged that on or about August 1, 1933, the Secretary of the Interior ascertained that the oil then being purchased by Stanolind from leases on lands of the Osage Tribe was all merchantable oil; that on August 1, 1933, the Secretary of the Interior directed Stanolind, and all other purchasers of oil from lands of the Osage Tribe of Indians, to pay for all such oil at the highest posted market price; that Stanolind so paid for such oil from August 1, 1933, to August 20, 1933. That Stanolind and all other purchasers of oil, by concerted action, in order to acquire 100 per cent of such oil while paying for only 97 per cent thereof, posted a market price based on 97 per cent of the volume of oil taken. That by virtue of the foregoing facts, Stanolind, during the period from August 1, 1915, to the date of the filing of the complaint, received from the Osage Tribe of Indians three per cent more merchantable oil than it paid for, except during the period from August 1 to August 20, 1933, and thereby became indebted to and agreed to pay the Osage Tribe of Indians the highest posted price for such three per cent of oil. The United States prays recovery for the value of such oil. A copy of the 1915 Osage oil mining lease and of one of the division orders of Stanolind are attached to the amended complaint as exhibits and incorporated therein by reference. It was stipulated that the Osage Tribal Council did not at any time, by resolution or any other formal action approved by the Secretary of the Interior, elect to take royalty in oil, and that the defendants are being sued exclusively as purchasers of oil. The court sustained the motion to dismiss. The United States elected not to plead further and the court entered its order dismissing the action. The United States has appealed. In Oklahoma an oil and gas lease is an incorporeal hereditament or a profit à prendre. It is an interest in real property.[6] Because of the vagrant and fugitive nature of oil and gas, the owner of land has no absolute right or title to the oil or gas which may permeate the strata underlying the surface of his land. He only has a qualified interest therein, namely, the exclusive right to erect structures on the surface of his land, to explore for oil and gas by drilling wells through the underlying strata, and to take therefrom and reduce to possession oil or gas found therein, and thus acquire absolute title thereto as personal property. But neither the landowner nor his lessee obtains title to the oil and gas until he reduces it to possession.[7] Since the Osage Nation did not elect to take the royalty in oil, we may lay aside that type of lease providing for the payment, as royalty, of a specified portion of the oil produced. We are concerned here only with leases which provide for the payment, as royalty, of a stipulated percentage of the gross proceeds derived from the sale of oil. It is well settled that in the latter type of lease, the lessor does not acquire title to any part of the oil which the lessee produces and reduces to his possession.[8] 199 It follows that the oil sold under the leases here involved was the oil of the lessees, who were obligated to pay, in accordance with the terms of their leases, to the United States, for the benefit of the members of the Osage Nation, a stipulated portion of the gross proceeds derived from the sale of such oil. Whether the lessees performed the covenants of their leases with respect to the payment of royalty was no concern of the purchasers other than that the latter were required to observe the terms of the division orders. We conclude, therefore, that Stanolind, Sinclair, and Gulf owed no obligation to the United States other than to carry out the terms of their respective division orders and that they are not liable to the United States as purchasers of oil. But if we be wrong in the foregoing conclusions, and if Stanolind, Sinclair, and Gulf may be regarded as having purchased the oil from the Osage Nation, we are of the opinion that the facts alleged do not warrant a recovery. Stanolind, Sinclair, and Gulf paid for the oil purchased in strict accordance with the respective division orders. No further obligation rests upon them unless the provision in the division orders for the deduction of three per cent of the oil received on account of dirt and sediment was ineffectual. Oil was first discovered in Oklahoma in the year 1884.[9] From its discovery until January, 1940, 4,626,886,419 barrels of oil have been produced and sold in Oklahoma. During that period many new wells have been drilled and many new fields and pools have been discovered and developed. The aggregate of production in the Osage Nation exceeds 500,000,000 barrels.[10] On January 1, 1940, oil was being produced in the state from 465 different pools under 11,494 leases and from 55,495 wells.[11] Oil from these leases has been sold under vast numbers of division orders. In the marketing of crude oil, it is the practice to run the production from the well into settling tanks and permit the heavier ingredients, constituting impurities, to settle to the bottom. The part that is not thus settled off is run into the pipe line. This practice removes a part, but not all, of the impurities and to compensate for such impurities and pipe line losses, provision is made in the division orders for deduction of a stipulated percentage. This practice or usage of deducting three per cent on account of dirt and sediment and transportation losses had its inception in Pennsylvania.[12] During the time that oil has been produced in Oklahoma and in its neighboring state of Kansas, it has been the uniform practice and usage to incorporate in division orders a provision for the deduction of three per cent of the oil received into the pipe lines on account of dirt and sediment. This deduction is to cover not only impurities in the oil, but also shrinkage or loss during transportation.[13] Like deductions are made in other areas.[14] 200 A usage is a mode of dealing generally observed in a particular trade.[15] A usage universally recognized and observed by those engaged in a particular trade throughout a state is a general usage.[16] While it must be generally recognized by those engaged in the trade, it need not be observed in every individual transaction in order to be general.[17] The court will take judicial notice of a general trade usage.[18] Parties to a contract are presumed to know a well-defined trade usage generally adopted by those engaged in the business to which the contract relates.[19] The Secretary of the Interior and the Superintendent were, therefore, presumed to know the existence of such trade usage at the time the division orders were presented to and approved by the Superintendent. Under these circumstances, it seems clear to us that the inclusion of a provision for the deduction of three per cent on account of dirt and sediment could not constitute a fraudulent misrepresentation that the oil did contain three per cent of dirt and sediment. Furthermore, each division order provided solely for oil to be produced and run after its execution and approval and no one could forecast with absolute certainty the amount of dirt and sediment that would be found in the oil. That the oil produced from the Osage lands was not wholly free from dirt and sediment is shown by the order of the Secretary of the Interior on July 31, 1933.[20]201 Indeed, we may take judicial notice of the fact that no crude oil is wholly free from impurities. Moreover, it is a general rule that in order to constitute actionable fraud, a false representation must relate to a present or preexisting fact and cannot ordinarily be predicated on representations or statements which involve mere matters of futurity.[21] Statements or representations as to contingent events do not constitute fraud, although they turn out to be false.[22] Furthermore, Stanolind made no representation as to the per cent of impurities in the oil. It merely proffered a contract containing a provision for an allowance to cover such impurities. It was a term of the contract and not a representation inducing its execution. See Stark Bros. Nurseries & Orchards Co. v. Mayhew, 16 Mo. App. 60, 141 S.W. 433, 435. It cannot be tortured into a representation that the oil contained three per cent of impurities. We conclude that the amended complaint failed to state a claim on which relief could be granted for fraud. The provision for the three per cent deduction is not in conflict with the executive order of the President fixing the amount of the royalty at one-sixth. Section 3 of the Act of June 28, 1906, authorized the Secretary of the Interior to make rules and regulations for the leasing of the land. Section 12 thereof provides that all things necessary to carry out the provisions of the Act not otherwise therein specifically provided for shall be done under the direction of the Secretary of the Interior. Since the first regulations were adopted on June 28, 1906, provision has been made for the sale of oil through division orders, approved by the Superintendent. See 1906 Regulations, par. 24, and 1915 Regulations, par. 64. It must be presumed that the Secretary of the Interior, when he promulgated these regulations, was cognizant of the trade usage to incorporate the three per cent deduction provision in the division orders. The Secretary of the Interior, by providing for the sale of oil through division orders, and by failing to provide that such division orders should contain the three per cent deduction provision in keeping with the general trade usage, impliedly approved the use of division orders containing such provision. The order of July 31, 1933, expressly recites that the approval of such division orders by the Superintendent had been made under existing regulations and custom. A rule or regulation promulgated by an administrative agency charged with the administration of an act has the force and effect of law if it is reasonably adapted to the administration of the act and does not contravene some statutory provision. Maryland Casualty Company v. United States, 251 U.S. 342, 349, 40 S. Ct. 155, 64 L. Ed. 297. Moreover, since the first regulations were adopted in 1906, division orders containing the three per cent deduction provision had been employed in the sale of Osage oil. During that period Congress many times amended the Act of June 28, 1906,[23] and neither expressed nor indicated its disapproval of the regulations adopted by the Secretary of the Interior or the methods employed for the sale of the oil. Furthermore, the provisions of the executive order are general. They left the details to be worked out by the regulations of the Secretary of the Interior. All crude oil contains impurities. All of its impurities cannot be settled off. Some provision must be made for a deduction. The three per cent provision is neither unreasonable nor unfair. It is reasonable to assume that the executive order contemplated that in the marketing of the oil, well-recognized and reasonable usages would be observed and royalty payments computed accordingly. The judgments dismissing the actions are affirmed. NOTES [1] Hereinafter referred to as Stanolind. [2] Hereinafter referred to as Sinclair. [3] Hereinafter referred to as Gulf. [4] Hereinafter referred to as the Superintendent. [5] By the Act of March 2, 1929, 45 Stat. 1478, the trust period was extended to April 8, 1958. [6] Commissioner of Internal Revenue v. McKinney, 10 Cir., 87 F.2d 811, 813; Rich v. Doneghey, 71 Okl. 204, 177 P. 86, 89, 3 A.L.R. 352. [7] Rich v. Doneghey, supra, 177 P. page 89; Ohio Oil Company v. Indiana, 177 U.S. 190, 202-209, 20 S. Ct. 576, 44 L. Ed. 729; Alexander v. King, 10 Cir., 46 F.2d 235, 238, 239, 74 A.L.R. 174, certiorari denied 283 U.S. 845, 51 S. Ct. 492, 75 L. Ed. 1455. In Rich v. Doneghey, supra, the court said [71 Okl. 204, 177 P. 89, 3 A.L.R. 352]: "But with respect to such oil and gas, they had certain rights designated by the same courts as a qualified ownership thereof, but which may be more accurately stated as exclusive right, subject to legislative control against waste and the like, to erect structures on the surface of their land, and explore therefor by drilling wells through the underlying strata, and to take therefrom and reduce to possession, and thus acquire absolute title as personal property to such as might be found and obtained thereby. This right is the proper subject of sale, and may be granted or reserved. Barker v. Campbell-Ratcliff Land Co. et al. [64 Okl. 249], 167 P. 468, L.R.A.1918A, 487. The right so granted or reserved, and held separate and apart from the possession of the land itself, is an incorporeal hereditament; or more specifically, as designated in the ancient French, a profit à prendre analogous to a profit to hunt and fish on the land of another. Kolachny v. Galbreath, 26 Okl. 772, 110 P. 902, 38 L.R.A.(N.S.) 451; Funk v. Haldeman et al., 53 Pa. 229; Phillips v. Springfield Crude Oil Co., 76 Kan. 783, 92 P. 1119." [8] Rich v. Doneghey, supra; Homestake Exploration Corp. v. Schoregge, 81 Mont. 604, 264 P. 388, 391, 392; Shell Petroleum Corp. v. Calcasieu Real Estate & Oil Co., 185 La. 751, 170 So. 785, 791; American Oil & Refg. Co. v. Cornish, 173 Okl. 470, 49 P.2d 81, 82, which cites with approval Homestake Exploration Corp. v. Schoregge, supra; Ladd v. Upham, Tex.Civ.App., 58 S.W.2d 1037, 1038, 1039; Coalinga Pac. Oil & Gas Co. v. Associated Oil Co., 16 Cal. App. 361, 116 P. 1107, 1110; Railroad Comm. of Texas v. Rowan & Nichols Oil Co., 5 Cir., 107 F.2d 70, 72; Eureka Development Co. v. Clements, 44 Idaho 484, 258 P. 371; Opinion, Hon. Robert H. Jackson, then Asst. Gen. Counsel, Bureau of Internal Revenue, XIV-1, January-June, 1935, p. 401. [9] "Then Came Oil," Glascock, p. 114; "Oklahoma and The Mid-Continent Oil Field," p. 25. [10] Annual Summary of Production and Pipe Line Runs, Oklahoma and Kansas, for the year of 1939 Petroleum Statistical Guide, Inc., p. 11. [11] Annual Summary of Production and Pipe Line Runs, Oklahoma and Kansas, for the year of 1939 Petroleum Statistical Guide, Inc., p. 1. [12] Stanolind Crude Oil Purchasing Co. v. Cornish, D.C.Okl., 16 F. Supp. 464, 467. [13] Petroleum, 4th Ed., by Sir Boverton Redwood, § 8, p. 667; Federal Trade Commission Report on Pipe Line Transportation of Petroleum, dated February 28, 1916, pp. 77, 127; Petroleum Production, Cloud, ch. 13, p. 461; Ruling, Department of the Interior, Office of Indian Affairs, Field Service, Osage Agency, Pawhuska, Oklahoma, dated July 31, 1933, signed by C. L. Ellis, Acting Superintendent, which reads in part as follows: "Under existing regulations and custom the Superintendent of the Osage Agency has approved division orders for removal and purchase of oil from the Osage Field containing a clause providing for deduction of 3% of the oil received into the lines on account of sediment, impurities, shrinkage, etc., * " [14] See Rules and Regulations Adopted by the Railroad Commission of Texas, July 26, 1919; Federal Trade Commission Report on Pacific Coast Petroleum Industry, dated April 7, 1921, Part I, p. 162; Federal Trade Commission Report on Pipe Line Transportation of Petroleum, dated February 28, 1916, pp. 77, 127; Derricks Handbook of Petroleum, Oil Region Chronology, p. 275. [15] Haskins v. Warren, 115 Mass. 514, 535; Barreda v. Milmo Nat. Bank, Tex. Civ.App., 241 S.W. 743, 745; Ames Mercantile Co. v. Kimball S. S. Co., D.C. Cal., 125 F. 332, 336; Wilmington City Ry. Co. v. White, 6 Pennewill, Del., 363, 66 A. 1009, 1012; Milroy v. Chicago, M. & St. P. Ry. Co., 98 Iowa, 188, 67 N.W. 276, 278. [16] Chicago & A. R. Co. v. Harrington, 192 Ill. 9, 61 N.E. 622, 629; Traders' Ins. Co. v. Dobbins & Ewing, 114 Tenn. 227, 86 S.W. 383, 384; Burbridge v. Gumbel, 72 Miss. 371, 16 So. 792, 793; Crosland v. Sloan, 123 Or. 243, 261 P. 701, 703. [17] Traders' Ins. Co. v. Dobbins & Ewing, supra, 86 S.W. page 384; Rastetter v. Reynolds, 160 Ind. 133, 66 N.E. 612, 615; Gleason v. Walsh, 43 Me. 397. [18] British & American Mortgage Co. v. Tibballs, 63 Iowa 468, 19 N.W. 319, 320; Baker v. Lehman, Weil & Co., 186 Ala. 493, 65 So. 321, 323; Brown v. Piper, 91 U.S. 37, 42, 23 L. Ed. 200; Gibson v. Stevens, 8 How. 384, 49 U.S. 384, 398, 12 L. Ed. 1123; United States v. Ferger, 250 U.S. 199, 204, 39 S. Ct. 445, 63 L. Ed. 936; Mitchell v. Fisher, 168 Okl. 145, 32 P.2d 37, 39; Pruitt v. Carter, 52 Okl. 284, 152 P. 1081; Bookhart v. Langford, 128 S.C. 350, 122 S.E. 866, 867; Strasbourger v. Leerburger, 233 N.Y. 55, 134 N.E. 834, 835; Pennsylvania Steel Co. v. Title Guarantee & Trust Co., 193 N.Y. 37, 85 N.E. 820, 823. [19] Wolfe v. Texas Co., 10 Cir., 83 F.2d 425, 429, certiorari denied 299 U.S. 553, 57 S. Ct. 15, 81 L. Ed. 407; Ross v. Northrup, King & Co., 156 Wis. 327, 144 N.W. 1124, 1128; A. J. Tower Co. v. Southern Pac. Co., 184 Mass. 472, 69 N.E. 348, 349; Cormier v. H. H. Martin Lumber Co., 98 Wash. 463, 167 P. 1105, 1106; Miller v. Germain Seed & Plant Co., 193 Cal. 62, 222 P. 817, 819, 32 A.L.R. 1215; Plover Savings Bank v. Moodie, 135 Iowa 685, 110 N.W. 29, 31; Id., 135 Iowa 685, 113 N.W. 476; Ankeny v. Young Bros., 52 Wash. 235, 100 P. 736, 738; Western Petroleum Co. v. Tidal Gasoline Co., 7 Cir., 284 F. 82, 84; Silverstein v. Michau, 2 Cir., 221 F. 55, 56; Traders' Ins. Co. v. Dobbins & Ewing, supra, 86 S.W. page 384; Meyers v. Texas Company, Cal.App., 50 P.2d 487, 491; Crosland v. Sloan, supra, 261 P. page 703; Lowry v. Russell, 8 Pick., Mass., 360, 362; J. E. Smith & Co. v. Russell Lumber Co., 82 Conn. 116, 72 A. 577, 579; Douglas & Mizell v. Ham Turpentine Company, 210 Ala. 180, 97 So. 650, 652; Williston on Contracts, Rev.Ed., Vol. 3, § 661. [20] The order in part reads: "Under existing regulations and custom the Superintendent of the Osage Agency has approved division orders for removal and purchase of oil from the Osage Field containing a clause providing for deduction of 3% of the oil received into the lines on account of sediment, impurities, shrinkage, etc., * * It has been definitely shown by an actual test of oil from various sections of the Osage Field that the impurities is considerably less than the allowance called for in division orders. * * * "(1) The percentage of impurities (water, sand, and other foreign substances not constituting a natural component part of the oil) shall be determined to the satisfaction of the supervising official, and the observed volume of oil shall be corrected to exclude the entire volume of such foreign substances." [21] Beatrice Creamery Co. v. Goldman, 175 Okl. 300, 52 P.2d 1033, 1036; Tamm v. Ford Motor Co., 8 Cir., 80 F.2d 723, 729. [22] Lescher v. Baird, 173 Ark. 1033, 294 S.W. 17, 19; 23 Am.Jur., p. 794, § 35. [23] See 35 Stat. 778; 35 Stat. 1167; 37 Stat. 87; 40 Stat. 561, 579; 41 Stat. 1249; 45 Stat. 1478.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509573/	113 F.2d 162 (1940) SHERWOOD BROS., Inc., v. DISTRICT OF COLUMBIA. No. 7289. United States Court of Appeals for the District of Columbia. Decided April 29, 1940. M. C. Mallon and William A. Gallagher, both of Washington, D. C., for petitioner. Elwood H. Seal, Vernon E. West, and Glenn Simmon, all of Washington, D. C., for respondent. Before STEPHENS, VINSON, and RUTLEDGE, Associate Justices. RUTLEDGE, Associate Justice. The single question presented is whether petitioner filed its claim for refund of taxes with the Board of Tax Appeals for the District of Columbia within the ninety-day period specified by the statute for doing so as a condition of recovering taxes paid under protest.[1] The tax imposed was the "business privilege" tax recently involved in other litigation here.[2] Petitioner's assessment for 1937 amounted to $2,078.67, which was paid under protest April 30, 1938. The ninetieth day of the statutory period fell on Sunday, August 14, 1938. Petitioner, a Maryland corporation having its principal place of business in Baltimore, assumed that its Washington attorney would file the claim for refund or "appeal"[3] in time, but learned on Friday, 163 August 12, that he had not done so and was away on his vacation. The appeal was prepared on Saturday, August 13, and deposited in the mails at 2:30 o'clock that afternoon. It was received by the Board and filed Monday morning, August 15. The Board held that the claim was filed late and dismissed the appeal. That action is questioned here. We think it was erroneous. The sole question is whether the ninety-day period included Monday, August 15, or ended for all practical purposes at noon of Saturday, August 13. Under the circumstances the practical effect of the decision will be to allow petitioner an extra day or deprive it of a day and a half of the exact statutory period. As an original matter, considerations of convenience and fairness combine with well-settled rules of statutory construction to dictate exclusion of the final Sunday in calculating the period. That the final day fell on Sunday was largely a matter of accident, probably not contemplated by Congress. Furthermore, that fact created an ambiguity in the legislation which, if resolved against the taxpayer, would be productive of harsh and accidental results. Business practice and accepted legal principle, apart from statute, permit and in some instances require an act to be done on the following Monday where the last day upon which it should have been done falls on Sunday. That is the common-law rule,[4] and it has become embedded in the habits and customs of the community, both from respect for religious considerations and by long-established legal and commercial tradition. It would be reasonable, therefore, to assume that Congress had the commonlaw rule in mind when it legislated, and to construe the statute accordingly. Various state courts have interpreted state temporal statutes in this manner.[5] Many states have enacted statutes for computation of time which expressly exclude the final Sunday.[6] The Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, do likewise. Rule 6 (a). And the only decisions of the Supreme Court bearing on the problem which have come to our attention follow the same rule. Street v. United States, 1890, 133 U.S. 299, 10 S. Ct. 309, 33 L. Ed. 631; Monroe Cattle Co. 164 v. Becker, 1893, 147 U.S. 47, 13 S. Ct. 217, 37 L. Ed. 72.[7] It has the support, therefore, of controlling authority, as well as of tradition, fairness and convenience. Furthermore, the principle has received the approval of the Board itself by adoption in its own rules,[8] applicable of course only to the extent that the contrary rule is not prescribed by statute. But respondent relies upon decisions of inferior federal courts which take the contrary view with respect to calculating the time for taking an appeal in federal judicial proceedings and for performing the acts necessary to an appeal,[9] including Walker v. Hazen, 1937, 67 App.D.C. 188, 90 F.2d 502, certiorari denied, 302 U.S. 723, 58 S. Ct. 44, 82 L. Ed. 559. The reasons given to support this view are varied and highly technical, some of them resting upon doubtful assumptions and contradictory premises.[10] We do not consider it 165 necessary to discuss them fully. It is sufficient for present purposes to note that they applied only to strictly judicial proceedings, not those of administrative bodies;[11] to the time for taking appeals proper, not to filing an original pleading in a tribunal for trial (cf. notes 3 and 5 supra); that none of them involved proceedings of the Board here concerned; that they no longer represent the law applicable to federal judicial proceedings; and that extension of the rule of the Hazen case now for the first time to proceedings of the Board would place it out of step in this respect for the future with the courts and possibly with other administrative agencies.[12] We do not therefore consider that the Hazen case is conclusive upon the question presented here. Nor do we regard it as persuasive, since it no longer represents the law applicable to judicial proceedings and did not purport to deal with administrative proceedings, such as are involved here. These things being so, it would be unfortunate to extend it to the newly created District Board of Tax Appeals or other administrative agencies. Generally speaking, administrative procedure is, and should be, simpler, less formal and less technical than judicial procedure. Certainly it should not be made more so in the absence of clear and specific mandate from Congress. Prior to creation of the Board, the taxpayer's remedy was by a suit at law. District of Columbia v. Glass, 1906, 27 App.D.C. 576. The Board was established to furnish a more efficient, speedy and less expensive method for determining the validity of assessments. Adoption of respondent's view would defeat that purpose to the extent that it would be controlling. Possibly also it might result merely in driving petitioner into court to seek a judicial remedy.[13] It does not appear that time is of such essence in regard to these claims that any rightful interest of the Government will be prejudiced by excluding the final Sunday when the last day falls on Sunday. On the other hand, so doing will make the statutory period operate with greater uniformity both in coordination with the courts and among claimants; accord with settled business practice; and avoid the trap which is inherent in the opposite rule. We think also that this construction does no violence to the intention of Congress, but on the contrary more nearly complies with it than would the opposite one. 166 The decision of the Board is reversed and the case remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. STEPHENS, Associate Justice. I think that until the effective date of the Rules of Civil Procedure for the District Courts of the United States, September 16, 1938, Walker v. Hazen, 1937, 67 App.D.C. 188, 90 F.2d 502, necessarily governed the action of the Board in determining whether or not the petition for appeal was filed within the ninety days prescribed by the statute. And I think that, under Walker v. Hazen, the Board properly determined that the petition was filed late. NOTES [1] D.C.Code (Supp. V) tit. 20, § 977. The Board was created by Act of August 17, 1937, 50 Stat. 673, as added May 16, 1938, 52 Stat. 370. D.C.Code (Supp. V) tit. 20, §§ 972 ff. [2] D.C.Code (Supp. V) tit. 20, § 970 ff.; Neild and Sauerhoff v. District of Columbia, 71 App.D.C. 306, 110 F.2d 246, decided Jan. 15, 1940; General Electric Supply Corp. v. District of Columbia, 71 App.D.C. 322, 110 F.2d 262, decided Jan. 15, 1940; Colgate Palmolive Peet Co. v. District of Columbia, 71 App.D.C. 324, 110 F.2d 264, decided Jan. 15, 1940. [3] It is not a matter of great moment whether the petition for refund be considered as a "claim" or as an "appeal." The statute provides that the taxpayer "may within ninety days from the approval of this Act [May 16, 1938] appeal from the imposition of such tax * * ." Whether the remedy is given in lieu of, alternatively or cumulatively (cf. note 13 infra) to the taxpayers' previously existing right to sue at law, filing of the petition for the "appeal" is analogous to the filing of a declaration or bill in court rather than to giving notice of appeal from a judgment or decree. In further factual explanation it may be said that the Board's office was closed at noon of the preceding Saturday, in accordance with custom and its own rules. Cf. note 8 infra. [4] See Lamson v. Andrews, 1913, 40 App. D.C. 39; Street v. United States, 1890, 133 U.S. 299, 10 S. Ct. 309, 33 L. Ed. 631; Monroe Cattle Co. v. Becker, 1893, 147 U.S. 47, 13 S. Ct. 217, 37 L. Ed. 72; Pressed Steel Car Co. v. Eastern Ry., 8 Cir., 1903, 121 F. 609. [5] The final Sunday in the statutory period has been excluded where the limitation was on the enforcement of a mechanics' lien [Mox, Inc., v. Leventhal, 1928, 89 Cal. App. 253, 264 P. 562], filing a claim against an estate [Van Duyn v. Van Duyn, 1924, 129 Wash. 428, 225 P. 444, 227 P. 321], suing under a guest statute [Mansur v. Abraham, La.App., 1935, 159 So. 146, affirmed, 1935, 183 La. 633, 634, 164 So. 421], enforcing a note [Tilden Lumber Co. v. Perino, 1934, 2 Cal. App. 2d 133, 37 P.2d 466], filing nomination papers [Manning v. Young, 1933, 210 Wis. 588, 247 N.W. 61], appeal from a local board of tax appeals to the state board of tax appeals [Ettrick v. State Board of Tax Appeals, Sup.Ct., 1934, 172 A. 365, 12 N.J.Misc. 432], action by the common council of a city [Application of Hushion, 1938, 253 A.D. 376, 2 N.Y.S.2d 256], filing a bill of exceptions [Lakeside Inn Corp. v. Commonwealth, 1922, 134 Va. 696, 114 S.E. 769], and taking an appeal [Simkin v. Cole, Del., 1922, 2 W.W.Harr., 271, 122 A. 191; West v. West, 1898, 20 R.I. 464, 40 A. 6]. Contra: Vailes v. Brown, 1891, 16 Colo. 462, 27 P. 945, 14 L.R.A. 120; Williams v. Lane, 1894, 87 Wis. 152, 58 N.W. 77. [6] E. g., Shea v. San Bernardino, 1936. 7 Cal. 2d 688, 62 P.2d 365; Myers v. Harvey, 1924, 39 Idaho 724, 229 P. 1112; Elmore v. Fanning, 1911, 85 Kan. 501, 117 P. 1019, 38 L.R.A.,N.S., 685; Manchester Iron Works v. E. L. Wagner Const. Co., 1937, 341 Mo. 389, 107 S.W.2d 89; Kelly v. Independent Publishing Co., 1912, 45 Mont. 127, 122 P. 735, Ann.Cas.1913D, 1063, 38 L.R.A.,N.S., 1160; Johnston v. New Omaha Thomson-Houston Electric Light Co., 1910, 86 Neb. 165, 125 N.W. 153, 20 Ann.Cas. 1314; Ohio Power Co. v. Davidson, 1934, 49 Ohio App. 184, 195 N.E. 871; State ex rel. Hunzicker v. Pulliam, 1934, 168 Okl. 632, 37 P.2d 417, 96 A.L.R. 1294; Barr v. Lynch, Or., 1939, 97 P.2d 185; Nelson v. Jorgenson, 1926, 66 Utah 360, 242 P. 945. [7] Street v. United States involved a statute authorizing the President to transfer certain army officers to the supernumerary list. The day mentioned in the statute was January 1. That date being Sunday, the President made the transfer on January 2. Among other reasons for holding that he had not exceeded his statutory power, the Court said: "It must be noticed that the 1st day of January was Sunday, that is, a dies non, and a power that may be exercised up to and including a given day of the month may generally, when that day happens to be Sunday, be exercised on the succeeding day." 133 U.S. 306, 10 S. Ct. 311, 33 L. Ed. 631. Monroe Cattle Co. v. Becker involved a Texas statute allowing ninety days for a purchaser of school land to make his first payment. If payment was not made within that time, the land was open for another application. The ninety-day period involved in the suit ended on Sunday. Another application was filed the preceding Saturday. The Court said: "As the ninetieth day fell on Sunday, the lands were not open to another application until Monday, the general rule being that, when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. Endlich, Interpretation of Statutes, § 393; Salter v. Burt, 20 Wend., N.Y., 205, 32 Am.Dec. 530; Hammond v. American Mut. L. Ins. Co., 10 Gray, Mass., 306." 147 U.S. 55, 56, 13 S. Ct. 220, 37 L. Ed. 72. While these cases did not involve judicial proceedings, neither does the present one. However, they did involve statutes limiting the time for performance of acts vital to the existence and protection of private rights. In these circumstances the sounder analogy is to the rule thus applied to such executive action than to the formerly prevailing, but now repealed, rule of the lower federal courts. [8] "Rule 1 Business Hours. The office of the Board will be open each business day, except Saturdays, from 9 o'clock a. m., to 4 o'clock p. m. On Saturdays the office will be open from 9 a. m. to 12 o'clock noon. * * * * "Rule 37 Computation of time Sundays and Holidays. Whenever these rules prescribe a time for the performance of any act, Sundays and legal holidays in the District of Columbia shall count just as any other days, except that when the time prescribed for the performance of any act expires on a Sunday or a legal holiday in the District of Columbia, such time shall extend to and include the next succeeding day that is not a Sunday or such a legal holiday; Provided, That when the time for performing any act is prescribed by statute nothing in these rules shall be deemed to be a limitation or extension of the statutory time period." [9] See the authorities cited in note 10 infra. [10] It was reasoned that since many states have statutes of the character referred to supra, note 6, and Congress has no such generally applicable act, Congress intends no such result. Johnson v. Meyers, 8 Cir., 1893, 54 F. 417. This ignores the alternatives that the state acts are merely declaratory of the common law, cf. Kelly v. Independent Publishing Co., 1912, 45 Mont. 127, 122 P. 735, Ann.Cas.1913D, 1063, 38 L.R.A.,N. S., 1160, and that Congress frequently acts in the same manner, particularly where there is no obvious reason for overturning settled and just common-law rules. Standard Oil Co. v. United States, 1911, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas.1912D, 734; United States v. American Medical Association, 71 App.D.C. ___, 110 F.2d 703, decided March 4, 1940. Another reason assigned contrasts the power of courts over their own rules and over statutes, apparently assuming that equitable construction of the former is proper, but of the latter, by excluding the final Sunday, would change the terms of the act and thus invade the legislative function. Meyer v. Hot Springs Imp. Co., 9 Cir., 1909, 169 F. 628, 629; Maresca v. United States, 2 Cir., 1921, 277 F. 727, certiorari denied, 1922, 257 U.S. 657, 42 S. Ct. 183, 66 L. Ed. 420. This assumes that the statute is not ambiguous and therefore allowing the additional day would be "extension," not "construction." It seems contrary, in principle, also to the decisions involving statutory periods of less than a week, where the lower federal courts adhered to the common-law rule excluding Sundays. Johnson v. Meyers, 8 Cir., 1893, 54 F. 417, 418. The difference in length of the period would seem to go only to make the hardship more apparent in the shorter one, not to make it nonexistent in the longer. The difference in hardship, if there is one, arises from that in the lengths of the periods, not as is assumed from the fact that they are statutory. If construction is permissible to avoid hardship in the one, it should be in the other. Other cases conclude that since Congress in some instances expressly provided for exclusion of the final Sunday, in others where it did not do so it intended to include it. Shefer v. Magone, C.C.S. D.N.Y., 1891, 47 F. 872; Johnson v. Meyers, 8 Cir., 1893, 54 F. 417. This assumes that because Congress in some statutes expressly recognizes the common-law rule, it intends to repudiate it where it does not do so. It converts sporadic explicit recognition, by negative pregnant, into general repudiation. Statutory silence is not always prohibitive by contrast with statutory expression in other situations. Inland Waterways Corp. v. Young, 60 S. Ct. 646, 84 L. Ed. 901, decided March 25, 1940; Keifer & Keifer v. Reconstruction Finance Corp., 1939, 306 U.S. 381, 59 S. Ct. 516, 83 L. Ed. 784. The cases involving periods measured in months are not applicable, e. g., Johnson v. Meyers, 8 Cir., 1893, 54 F. 417; cf. Williams v. Lane, 1894, 87 Wis. 152, 58 N.W. 77. [11] The United States Board of Tax Appeals and the Court of Claims apparently felt themselves bound by the decisions of the Circuit Courts, in respect to their own proceedings, and have applied the so-called "general federal rule" to them. Appeal of Sam Satovsky, 1924, 1 B.T.A. 22; Graf v. United States, Ct.Cl., 1938, 24 F. Supp. 54. Whether or not they will continue to do so, now that that rule no longer prevails in those courts, their decisions are not controlling upon us or the District Board of Tax Appeals. [12] Cf. note 11 supra. [13] It is not necessary to decide whether the remedy before the Board is exclusive, or either alternative or cumulative to the suit at law. The statute creating the administrative remedy remains open for construction upon that question.	01-03-2023	10-30-2013

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