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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
https://www.courtlistener.com/api/rest/v3/opinions/1509610/	282 F. Supp. 766 (1968) Genevieve BAGSARIAN, Plaintiff, v. PARKER METAL COMPANY, Defendant. No. C 67-393. United States District Court N. D. Ohio, E. D. April 5, 1968. 767 James P. Hodsden, of Wallach, DeVinne & Ledsky, Cleveland, Ohio, for plaintiff. John B. Robertson, of Hauxhurst, Sharp, Mollison & Gallagher, Cleveland, Ohio, for defendant. MEMORANDUM OPINION AND ORDER LAMBROS, District Judge: This is a diversity case. Plaintiff alleges that she was severely injured on June 10, 1965, while using one of defendant's products. She alleges that these injuries occurred as a result of defendant's negligence in manufacturing the item, which was a clothesline hook, and also as a result of a breach of the warranty of fitness. Plaintiff filed this action June 6, 1967. Service of process was attempted under Section 2307.383 of the Ohio Revised Code, commonly known as the Ohio Long-Arm Statute. This statute became effective on September 28, 1965, which was subsequent to the date on which plaintiff was injured, and prior to the date on which plaintiff attempted service of process. Defendant, appearing specially for the purpose of contesting jurisdiction, has moved the Court to dismiss this action. Defendant asserts that the Ohio Long-Arm Statute cannot be used to effect service of process for causes of action which accrued prior to its effective date, that is, September 28, 1965. Defendant asserts that the service of process attempted in this case was, therefore, ineffective and that this court has no jurisdiction over the person of the defendant. The sole issue presented in defendant's motion to dismiss is whether the Ohio Long-Arm Statute, Section 2307.381 et seq., Ohio Revised Code, can be utilized to obtain service of process in a case involving a cause of action which arose prior to its effective date. Service of process in cases begun in the United States District Court will be effective, if similar service of process would be effective under the law of the state in which the court sits. Rule 4(d) (7), Federal Rules of Civil Procedure. This court must ascertain, therefore, whether, under the law of Ohio, the Long-Arm Statute may be utilized in situations in which the cause of action involved arose prior to the effective date of the statute and the case was filed subsequent to the effective date. While there is a good deal of authority on this question, it appears to be divided almost equally. There are two reported Ohio Common Pleas decisions on the subject. O'Mara v. Aberto-Culver Co., 6 Ohio Misc. 132, 215 N.E.2d 735 (Common Pleas Ct., Hamilton Cty, 1966) held that the Long-Arm Statute is retroactive in application to causes of action existing 768 on the effective date and not yet filed with any court. Bruney v. Little, 8 Ohio Misc. 393, 220 N.E.2d 446 (Common Pleas Ct., Belmont Cty, 1966) held that the statute is not applicable to causes of action accruing prior to its effective date. Counsel for the defendant has represented that there are four unreported Common Pleas Court cases in Cuyahoga County which also hold that the Long-Arm Statute is not retroactive to causes of action existing on its effective date.[1] In addition to these Common Pleas decisions, the Court has been able to discover a number of unreported Ohio Court of Appeals decisions. Kilbreath v. Rudy (C.A. Franklin Cty, No. 8788) decided November 14, 1967, held that the Long-Arm Statute is retroactive to causes of action existing on its effective date. On the other hand, Lantsbury v. Tilley Lamp Co. (C.A. Cuyahoga Cty, No. 28085) and Wise v. Tilley Lamp Co. (C.A. Cuyahoga Cty, No. 28086) held that the Long-Arm Statute is not retroactive upon causes of action existing on its effective date. There are also Federal decisions on the subject. In Busch v. Service Plastics, Inc., 11 Ohio Misc. 131, 261 F. Supp. 136 (N.D.Ohio 1966), the Honorable William K. Thomas of this court, citing the O'Mara case, supra, stated briefly that the Long-Arm Statute is retroactive upon causes of action existing on its effective date. On the other hand, the Honorable John W. Peck, at that time sitting in the Southern District of Ohio, in a brief order stated that the Ohio Long-Arm Statute is not retroactive. This decision is reported in Partin v. Hassan Motors, Inc., 363 F.2d 104 (6th Cir. 1966) which affirmed the order on other grounds. The only other case this court has been able to discover relevant to the issue is American Compressed Steel v. Pettibone Mulliken Corp., 271 F. Supp. 864 (S.D. Ohio 1967). In that case the parties were apparently so certain that the statute was retroactive that they stipulated this fact. The Ohio Supreme Court has not spoken on this issue. However, the Tilley Lamp cases, supra, were certified to the Ohio Supreme Court on September 1, 1967 (S.C. Nos. 41080, 41081). As of this date, the Court has not decided these cases. From the above, it is readily apparent that the authority on the issue presented here is almost evenly balanced. There is virtually an identical number of cases on each side. Before proceeding further, two items should be noted. First, there is no problem of constitutional dimension involved here. A state may constitutionally give retrospective application to laws providing for service of process. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957). The question, then, is not whether the statute can have retroactive application, but rather whether it does so operate. Second, it should be emphasized that the issue in this case is whether the statute has application to causes of action which accrued prior to the effective date of the statute, but which were not filed as a lawsuit prior to the effective date. We are not here concerned with a situation in which litigation was begun prior to the effective date of the statute. The law of Ohio draws a substantial distinction between these two situations. The Ohio Legislature, when it enacted the Ohio Long-Arm Statute, did not include therein any language expressing its intention with respect to whether the statute should be applied retroactively. Had the Legislature chosen to include such language, there is no question that it could legally have given the law retroactive effect. McGee v. 769 International Life Ins. Co., supra. Since, however, the Legislature did not express its intent, this court must determine whether the Ohio courts would construe the statute to operate retroactively or prospectively only. Ohio has a statute to be used in construing the legislative intent on the subject of retroactivity. Section 1.20, Ohio Revised Code, states: "When a statute is repealed or amended, such repeal or amendment does not affect pending actions, prosecutions, or proceedings, civil or criminal. When the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions, or proceedings, unless so expressed, nor does any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act." The language in this statute is rather ambiguous, and the courts of Ohio have often been called upon to interpret its provisions. The important case in this area is Smith v. The N. Y. C. Ry. Co., 122 Ohio St. 45, 170 N.E. 637 (1930). The Supreme Court in that case interpreted Section 1.20 as providing that (in the absence of an expressed intention to the contrary) the repeal or amendment of a statute has prospective effect only and does not affect pending actions; nor does such an amendment or repeal affect pending causes of action which have not yet become actions. The Court, however, construed Section 1.20 as providing one exception to this general rule. With respect to remedial legislation, i. e., repeals or amendments which "relate to the remedy," these are applicable to pending causes of action, although they do not affect pending actions. Thus, under the interpretation given to Section 1.20 by the Ohio Supreme Court, all statutes operate prospectively only (unless a contrary intention is expressed in the legislation); but this general rule is qualified by one exception, which is that remedial legislation operates retroactively on pending causes of action. Is the Long-Arm Statute substantive or remedial legislation? The courts which have considered this question have disagreed. The O'Mara case, supra, held that the Long-Arm Statute was remedial, stating that the statute deals only with the remedy or procedure for enforcing a right as opposed to substantive rights themselves. The Bruney case, however, after stating that the Long-Arm Statute was in part remedial and in part substantive, treated the statute as substantive. This court is of the opinion that the Ohio Long-Arm Statute is remedial legislation. Statutes relating to service of process and venue have generally been held to be remedial legislation. For example, in Ward v. Swartz, 25 Ohio App. 175, 158 N.E. 318, (C.A. Sandusky Cty, 1927), an Ohio court held that a statute providing for service of process and venue in cases involving out-of-county motorists was remedial legislation. The Court noted that the statute did not affect the cause of action itself, but only affected where the suit could be brought. This decision is consistent with most judicial statements concerning the definition of remedial legislation. A remedial statute is generally defined as one which neither enlarges nor impairs substantive rights, but rather relates to the means and procedure for enforcing those rights. McGee v. International Life Ins. Co., supra. Ohio applies this definition: "It is doubtful if a perfect definition of `substantive law' or `procedural or remedial law' could be devised. However, the authorities agree that, in general terms, substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcements of rights or obtaining redress." State ex rel. Holdridge v. Industrial Comm., 11 Ohio St. 2d 175, 228 N.E.2d 621 (1967). While the distinction between remedial and substantive legislation is rather uncertain, 770 the Court is not required to indulge in these vagueries in the present case. It is plain from the above that the Ohio Long-Arm Statute is remedial legislation. Indeed, the United States Supreme Court, considering similar legislation, has so held. McGee v. International Life Ins. Co., supra. If Section 1.20 were applicable to the instant case, it is apparent that the Ohio Long-Arm Statute could be utilized by the plaintiff here. The Long-Arm Statute is remedial legislation; and, as outlined above, no legal proceedings were instituted prior to the effective date of the statute. If Section 1.20 were applicable, the result in this case would be clear. Section 1.20, however, on its terms applies only to situations involving an amendment or repeal of a statute. The Ohio Long-Arm Statute is not an amendment or repeal, but is entirely new legislation. We are relegated, therefore, to a determination of the Ohio common law rules for construing the legislative intent with respect to retroactivity. The general common law rule is that the statutes are construed to have a prospective effect only; a retroactive construction is not favored in the law. 82 C.J.S. Statutes § 414. There is an exception, however, to this general common law rule: Statutes merely affecting the remedy or procedure apply to causes of action which accrued before the effective date of the law. 82 C.J.S. Statutes § 421. Ohio adheres to the general common law preference against retroactivity. Buckeye Churn Co. v. Abbott, 115 Ohio St. 152, 152 N.E. 391 (1926). Does it follow the exception? There is sparse authority on this point in the Ohio decisions. Cincinnati, H. & D. Ry. Co. v. Hedges, 63 Ohio St. 339, 58 N.E. 804 (1900) contains an early dictum on the subject. The case involved substantive legislation which became effective subsequent to the date plaintiff's cause of action accrued, but prior to the date suit was commenced. The Court stated that "* * * The policy of our law * * * forbids giving to a statute retroactive effect, though remedial in character, unless the Act contains an express provision to that effect." Of course, this statement in the Cincinnati Railroad case was purely dictum. Yet, it implies that Ohio does not recognize the common law exception which provides retroactive effect to remedial legislation. Since the Cincinnati Railroad case, however, the Ohio Supreme Court has made a number of statements which indicate that Ohio does follow the common law exception providing a retroactive construction for remedial legislation. Elder v. Shoffstall, 90 Ohio St. 265, 107 N.E. 539 (1914); Smith v. The N. Y. C. Ry. Co. supra, State ex rel. Holbridge v. The Industrial Comm. of Ohio, 11 Ohio St. 2d 175, 228 N.E.2d 621 (1967). These cases all involved amendments or repeals of legislation. They were, therefore, concerned with an application of Section 1.20, Ohio Revised Code. In each instance, however, the Court speaks in very broad terms concerning remedial legislation in general, and in each case the Court, through its syllabus, states that laws of a remedial nature are applicable to all proceedings commenced after the adoption of such laws. These statements are not limited to repeals or amendments of a remedial nature. They are phrased in terms of applicability to all laws of a remedial nature. These more recent pronouncements by the Supreme Court of Ohio indicate that the dictum in the Cincinnati H. & D. Ry case is no longer the law of Ohio. Indeed, the Court in a more recent dictum has followed the common law exception with respect to remedial legislation. In Beckman v. State, 122 Ohio St. 443, 5 N.E.2d 482 (1930), the Supreme Court applied the principal of the Smith case, supra, that remedial legislation has a retroactive application to existing causes of action. The Court stated that this is the general rule with respect to remedial legislation and that it had been the general 771 rule even before the enactment of Section 1.20. It appears, therefore, that the dictum in the Cincinnati H. & D. Ry case is no longer followed in Ohio. Ohio recognizes the exception to the general common law rule against retroactivity. Ohio will apply remedial legislation to causes of action existing on the effective date of the legislation.[2] The Court, therefore, concludes that Ohio would permit service of process under the Ohio Long-Arm Statute for causes of action which accrued prior to September 28, 1965. This conclusion is supported by a majority of courts which have considered this issue in other states. Most state courts which have considered the question of the retroactivity of their Long-Arm Statutes have applied them to causes of action existing on the effective date of the legislation. See cases cited in Gerald H. Rubin, "Interpretive Problems of Ohio's Long-Arm Statute," 19 Case Western Reserve Law Review 347 (1968), f. n. 73. Defendant, in its brief, has relied heavily on the case of Shaeffer v. Alva West & Co., 53 Ohio App. 270, 4 N.E.2d 720 (C.A. Montgomery Cty, 1936). The case involved the application of Section 2703.20, Ohio Revised Code (formerly Section 6308-1, General Code), which provides for substituted service of process upon non-resident owners of motor vehicles. That section provided in part: "Any nonresident of this state * * who accepts the privilege * * * of operating a motor vehicle * * * within this state * * * by such acceptance * * * and by the operation of such motor vehicle within this state makes the secretary of state of the state of Ohio his agent for the service of process in any civil suit * * arising out of * * * any accident or collision occurring within this state in which such motor vehicle is involved." Section 6308-2 of the General Code then provided that process should be served upon the Secretary of State, and upon the defendant by registered mail. The Court in Shaeffer held that the statute could not be applied to causes of action existing on its effective date. In reaching this conclusion, it relied upon two factors. It first noted the general policy of the law against giving statutes a retroactive effect. In this connection, it relied upon the Cincinnati H. & D. Ry case, supra. The Court did not recognize any distinction between substantive and remedial legislation. Such a consideration was irrelevant, because the Cincinnati Railroad case, as we have seen, drew no distinction between these types of statutes. This basis for the Court's opinion in Shaeffer is no longer the law of Ohio. As noted above, cases subsequent to the Cincinnati H. & D. Ry case have, by implication, rejected the rule set down there and have recognized a distinction between substantive and remedial legislation. The second ground relied upon in the Shaeffer case was an interpretation of the statutory language itself. The Court emphasized that under the provisions of the statute, the act of driving a motor vehicle within the state of Ohio was the 772 element which constituted the Secretary of State the driver's agent for service of process. Emphasizing this legal fiction, the Court reasoned that until the Secretary of State was empowered to become the driver's agent, i. e., after the effective date of the statute, Ohio would have no jurisdiction over the driver. In other words, at the time the driver was present in the state, the Secretary of State had no power to become his agent; and, thereafter, when the Secretary of State acquired this power, the driver was no longer present. Under the Court's interpretation of the statute, the driver's presence in the state permitted the creation of the jurisdictional agency; and since the driver was never present at a time when the Secretary of State was authorized to become an agent, the jurisdictional agency could never be created. A number of cases, construing statutes very similar to the Ohio substituted service statute for motorists, have arrived at a similar conclusion on similar grounds. See Krueger v. Rheem Mfg. Co., 149 N.W.2d 142 (Iowa 1967). The Shaeffer rationale, based upon an interpretation of the statutory language, is not applicable to the Ohio Long-Arm Statute. Indeed, if an emphasis upon the legal fiction behind substituted service is relevant, it supports this court's conclusion that the Long-Arm Statute is retroactive upon causes of action existing on its effective date. Section 2307.382 (the Ohio Long-Arm Statute) provides: "A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's: * ." (Here follows a list of assorted activities.) Section 2307.383 provides that: "When personal jurisdiction is authorized by Section 2307.382 * * service of process may be made * * * on the secretary of state who, for this purpose, shall be deemed to be the statutory agent of such person." The Legislature chose to use different language in the Ohio Long-Arm Statute from the language it used in the statute pertaining to substituted service on motorists. Under the Long-Arm Statute a court acquires personal jurisdiction over a defendant if he commits one of the enumerated acts within the state of Ohio. The Secretary of State is "deemed" to be the statutory agent of the defendant for service of process. The fiction relied upon in the Shaeffer case, on the other hand, which provided that the defendant leaves a continuing presence within the state in the person of his statutory agent (the Secretary of State), is not emphasized in the Long-Arm Statute. The reasoning relied upon in the Shaeffer case has no application to the Ohio Long-Arm Statute. Indeed, differences between the two statutes would indicate, if anything, that the Legislature was seeking to reverse the result in the Shaeffer case. In any event, defendant's reliance on Shaeffer is not justified. This court, therefore, holds that the Ohio Long-Arm Statute is applicable to causes of action which arose prior to its effective date and which were not, on the effective date, the subject of the litigation in any court. Defendant's motion to dismiss is, therefore, overruled. NOTES [1] Broseke v. Myers Tire & Supply, Inc. (Common Pleas Ct., Cuyahoga Cty, No. 838,704); DeSantis v. Service Plastics, Inc. (Common Pleas Ct., Cuyahoga Cty, No. 810,886); Phoenix Ins. Co. v. Consolidated Heating & Air Conditioning (Common Pleas Ct., Cuyahoga Cty, No. 829,226); Consolidated Mutual Ins. Co. v. Consolidated Heating & Air Conditioning, Inc. (Common Pleas Ct., Cuyahoga Cty, No. 828,275). [2] The Court notes that there are two cases, involving substantive legislation which was neither an amendment nor a repeal of earlier legislation, which have held that the principle of Section 1.20 is inapplicable to such legislation. See Wheeling & Lake Erie Ry. Co. v. Toledo Ry. & Terminal Co., 72 Ohio St. 368, 74 N.E. 209 (1905); Gulf Refining Co. v. Evatt, 148 Ohio St. 228, 74 N.E.2d 351 (1947). The statutes in question in these cases were substantive; the Court applied them retroactively. This court expresses no opinion as to the rule in Ohio with respect to such original substantive legislation. The rule in this regard appears to be unclear. In any event, these two cases are not relevant to the issue here, since the Court has determined that whether or not Section 1.20 is applicable, Ohio has a common law rule providing for the retroactive application of remedial legislation.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509615/	633 S.W.2d 549 (1982) John Douglas PATTESON, Appellant, v. The STATE of Texas, Appellee. No. A14-81-034-CR. Court of Appeals of Texas, Houston Fourteenth District. March 4, 1982. Rehearing Denied March 25, 1982. 550 Ted Redington, Dallas, for appellant. George McCall Secrest, Jr., Asst. Dist. Atty., Houston, for appellee. Before J. CURTISS BROWN, C. J., and JUNELL and PRICE, JJ. PRICE, Justice. This is an appeal from a conviction for attempted capital murder. The court found the appellant guilty and assessed punishment at five years imprisonment. We overrule appellant's ground of error alleging fundamentally defective indictment for failure to use the phrase "act that is beyond mere preparation ...", and we also overrule appellant's evidentiary grounds of error relating to lie detector test results. We affirm. In his first ground of error, appellant asserts that the indictment is fundamentally defective because it fails to allege an element of the offense of attempted capital murder. Appellant's specific allegation is that the act of stabbing with a knife is not such an "act that is one beyond mere preparation but fails to effect the commission of the offense intended" and that the failure to include the quoted language in the indictment rendered the indictment fundamentally defective. The indictment in question alleged: "... with the intent to commit capital murder and while in the course of committing or attempting to commit burglary, attempt to cause the death of Hal S. Hudson, hereinafter styled the complainant, by intentionally cutting and stabbing the complainant with a knife." An indictment alleging criminal attempt, as the offense is contemplated by Tex. Penal Code Ann. § 15.01 (Vernon 1974) is sufficient if it alleges sufficient facts from which a legal conclusion can be drawn that the actor did an act amounting to more than mere preparation that tends but failed to effect the commission of the offense intended; therefore, in such cases, it is unnecessary to use the exact language of Section 15.01. Hobbs v. State, 548 S.W.2d 884, 886 (Tex.Cr.App.1977); Colman v. State, 542 S.W.2d 144 (Tex.Cr.App.1976); Morrison v. State, 625 S.W.2d 729 (Tex.Cr.App. 1981). In Hart v. State, 581 S.W.2d 675 (Tex.Cr.App.1979), the indictment was almost identical to the one in the instant case and the appellant there made the same contention. The court in rejecting that contention stated: "While simple acquisition and possession of a weapon would, in most situations, be preparation, putting that weapon to use to inflict injuries clearly goes beyond preparation. By alleging that appellant attempted to cause death by stabbing, the State has alleged an act beyond mere preparation which fell short of the intended offense of murder." Hart v. State, supra at 678. We find the Hart v. State case dispositive on this issue and accordingly overrule appellant's first ground of error. In his second ground of error appellant urges that the trial court erred in allowing evidence of the results of polygraph examinations in violation of the Due Process clauses of the Federal and State Constitutions. Appellant on appeal claims that polygraph evidence initially introduced by him over the State's objections as well as the State's rebuttal polygraph evidence violate Due Process. It is important to clarify the sequence of events relating to appellant's second ground of error. After the State rested its case in chief, appellant took the stand and denied he was the assailant and presented evidence of an alibi. Through a polygraph operator of the Sheriff's Department, appellant, over the timely and proper objection of the State, presented evidence of a pre-trial polygraph examination given to appellant by such witness and the successful results of the examination to 551 the effect he was being truthful. Appellant successfully persuaded the trial court to admit such evidence on appellant's argued theory that such evidence was admissible in a non-jury trial as opposed to a jury trial. Appellant in oral argument to this appellate court now admits such evidence was unequivocally inadmissible pursuant to case law. Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977); Fernandez v. State, 564 S.W.2d 771 (Tex.Cr.App.1978); Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973). Thereafter, the State, in rebuttal, through the chief polygraph examiner of the Pasadena Police Department, offered and introduced into evidence results of polygraph examinations of the complaining witness, his wife and fourteen year old daughter, all of whom had previously identified appellant as the assailant and which results indicated they were also telling the truth. Appellant made only a general objection to such evidence on the basis that no proper predicate had been laid. During cross-examination of the State's polygraph expert witness, appellant, in open court, then requested the State's polygraph expert to give a second polygraph test to the appellant. Pursuant to appellant's request a second polygraph test was administered to the appellant, the results of which were introduced by the State over appellant's general objection that no proper predicate had been laid. The results of that second test of appellant were interpreted by both the State's polygraph expert and the appellant's polygraph expert to indicate appellant was not being truthful. Both polygraph operators were shown to be qualified. During an evidentiary hearing of the appellant's amended motion for a new trial, the trial court answered affirmatively on the record to appellant counsel's question of whether the polygraph test results above described were considered in determining the guilt or innocence of the defendant. The State argues that the new trial hearing and record is a nullity because it was held eight days after the amended new trial motion had been overruled by operation of law, that no bill of exceptions was made and that no valid record evidence exists to establish that the court considered such polygraph evidence in reaching a verdict. A record on a new trial hearing is a nullity and cannot be considered if the hearing was not held timely. Zaragosa v. State, 588 S.W.2d 322 (Tex.Cr.App.1979). The instant amended new trial motion and hearing is governed by art. 40.05 Tex.Code Crim.Pro. prior to the September 1, 1981 amendment and had been overruled by operation of law eight days prior to the hearing. The State argues that since there is no valid record evidence the court considered the polygraph test results in reaching his decision at the guilt-innocence phase, there is a presumption in a non jury case the court disregarded any evidence that was improperly admitted. Komurke v. State, 562 S.W.2d 230 (Tex.Cr.App.1978); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App.1977). Nevertheless, since the trial court stated on the record during the new trial hearing that the polygraph test results were considered in his verdict, and since the trial court approved the record of such hearing, we believe such statement can serve as an informal bill of exceptions on the subject. Art. 40.10 Tex.Code Crim.Pro.; Rule 372 Tex. Rules Civ.Pro.; Rule 381 Tex.Rules Civ.Pro. In view of such record, we do not believe the issue at hand should be resolved by an indulgence in the well settled presumption applicable in a non jury case that the court did not consider inadmissible evidence. We therefore decide this case on the record evidence the trial court did consider the various results of the lie detector tests in arriving at his verdict. Results of polygraph examinations are inadmissible for all purposes on proper objection. Fernandez v. State, supra at 773, but the Court of Criminal Appeals has held that polygraph evidence is admissible where under the particular facts of the case, "the appellant `opened the door' for the State to introduce the complained of testimony." Lucas v. State, 479 S.W.2d 314, 315 (Tex.Cr.App.1972). The court in Lucas further relied upon Tex.Code Crim. Pro.Ann. art. 38.24 (Vernon 1979) to justify 552 the rebuttal polygraph evidence by the State which provides: When part of an act, declaration, or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence. Other cases in which it has been held that the defendant opened the door for rebuttal polygraph evidence are Rodriguez v. State, 170 Tex. Crim. 295, 340 S.W.2d 61 (1960); Leach v. State, 548 S.W.2d 383 (Tex.Cr.App. 1977). It is seen from these cases that polygraph test evidence has been admitted in Texas without violating any Constitutional right of Due Process. Polygraph test evidence likewise has not been heretofore excluded in Texas on the basis it violates the Due Process clauses of the Federal and State Constitutions. They have been heretofore excluded when a proper objection has been made because the Texas Court of Criminal Appeals has felt the tests are scientifically unproven. Romero v. State, 493 S.W.2d 206 (Tex.Cr. App.1973). There does exist a view polygraph test results should now be deemed admissible in the courts of Texas. See Judge Roberts' dissent in Fernandez v. State, 564 S.W.2d 771, 774 (Tex.Cr.App. 1978) where he equates the scientific reliability of polygraph test results with the scientific reliability of psychiatric testimony held admissible in death penalty cases on the issue of whether a defendant would commit criminal acts of violence that would constitute a continuing threat to society. Again, no Constitutional violation of Due Process is involved. Our decision here is not based on whether polygraph test results should or should not in ordinary circumstances be deemed admissible. It is our opinion that while the trial court in the instant case should not have permitted the introduction of polygraph test evidence by the appellant over the State's objection, we believe appellant opened the door for rebuttal polygraph evidence by the State, and further by requesting a second polygraph examination in open court in cross-examination during trial, he also opened the door for the State's introduction of the results of the second test in view of all the attending circumstances. Our holding is limited to the peculiar facts of this case, and we do not believe the State has a right to introduce unlimited polygraph rebuttal evidence. There was never any objection or contention by appellant at trial this type polygraph evidence was inadmissible per se, or that it was scientifically unproven. Appellant convinced the court to admit polygraph test evidence initially over objection of the State, and the only objection made by appellant to any of the rebuttal polygraph evidence was that no proper predicate had been laid without specifying the lack of any particular predicate. He did not make any objection to evidence that polygraph tests were given to all of such witnesses in question. It was only the results of such tests offered by the State which were objected to by appellant on the general ground of no proper predicate. In our view the admittance of appellant's polygraph evidence and the State's rebuttal polygraph evidence under the peculiar facts of this case does not amount to an abridgment of due process under State and Federal Constitutions. Appellant is precluded from now objecting to a procedure he initiated, invited and insisted on because to do so would allow the appellant to take advantage of his own wrong. Jones v. State, 153 Tex. Crim. 345, 220 S.W.2d 156, 158 (1949). Appellant's actions in successfully obtaining admission of his polygraph test results was a purposeful act and was not inadvertent. Appellant's second ground of error is overruled. In his third through sixth grounds of error, appellant argues that the trial court erred in allowing the polygraph examination results of Hal Hudson, Ann Hudson, 553 Lori Hudson and appellant's second test into evidence because the proper predicate had not been laid. Appellant in his brief contends the lack of predicate he now relies on was that "the subjects were suitable for accurate polygraph tests." Appellant then duly admits that it is difficult to specify what constitutes a proper predicate and he cites no case authority as to what is a proper predicate. In the trial court, he did not specify any particular lack of predicate complained of, and further did not object to evidence the tests were made. An objection that a proper predicate has not been made is too general and does not merit consideration. Canada v. State, 589 S.W.2d 452, 454 (Tex.Cr.App.1979); Boss v. State, 489 S.W.2d 582 (Tex.Cr.App.1972); Paige v. State, 573 S.W.2d 16 (Tex.Cr.App.1978); Harris v. State, 565 S.W.2d 66, 69 (Tex.Cr. App.1978); LaBome v. State, 624 S.W.2d 771, 773 (Tex.App. Houston [14th Dist.] 1981). Appellant's third through sixth grounds of error are overruled. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509634/	633 S.W.2d 934 (1982) Cecil Dorman SLAYTON, Appellant, v. The STATE of Texas, State. No. 2-81-144-CR. Court of Appeals of Texas, Fort Worth. May 19, 1982. 935 Griffin, Shelton & Eames and Robert N. Eames, Denton, for appellant. Brock Smith, Dist. Atty. and Jim A. Robertson, Asst. Dist. Atty., Gainesville, for State. Before HUGHES, RICHARD L. BROWN and HOLMAN, JJ. OPINION HOLMAN, Justice. The appellant, Cecil Dorman Slayton, was convicted of indecency with a child. A jury assessed his punishment at confinement in the Texas Department of Corrections for a period of three years. We affirm. Appellant's first ground of error complains that testimony of the psychiatrist 936 called by the State invaded the province of the jury by expressing a conclusion as to appellant's guilt. We disagree. Having qualified as an expert witness, the psychiatrist testified as to his opinion that the appellant was a type of person who might expose himself to a child. It is not error for a psychiatrist to express his expert opinion that an accused is capable of forming an intent to perform the act with which he is charged. Rogers v. State, 598 S.W.2d 258 (Tex.Cr.App.1980). The second ground of error argues that in the punishment phase, the court erred in allowing the psychiatrist to give the jury his opinion as to proper punishment for the appellant. The prosecutor's question, however, asked the psychiatrist to express his expert opinion as to the proper treatment for the appellant. The answer given was: "Well, since there really is no treatment that is any has any degree of effectiveness, hospitalization is not indicated, in my opinion, and therefore some type of confinement so that he can not act on all these impulses that he has indicated." Appellant's third ground of error attacks the indictment's failure to allege that he was not the spouse of the male child. The indictment delivered by the grand jury reads as follows: IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: The Grand Jurors for the County of Cooke, State of Texas, duly selected, impaneled, sworn, charged and organized as such at the July Term, A.D. 1979, of the 235th Judicial District Court of said County, upon their oaths present in and to said Court, that Cecil Dorman Slayton, on or about the 18th day of September, A.D. 1979, and before the presentment of this indictment, in said County and State, did then and there with intent to arouse and gratify the sexual desire of the said Cecil Dorman Slayton expose to Dale Reiter, a male child younger than 17 years of age, the genitals of the said Cecil Dorman Slayton, the said Cecil Dorman Slayton then and there knowing that the said Dale Reiter was present, AGAINST THE PEACE AND DIGNITY OF THE STATE. Appellant argues that an allegation of the non-spousal element is essential in order to charge him with the offense of indecency with a child. Upon the facts of this case, we are compelled to disagree. The law presumes innocence, which in turn mandates that the accused be presented an indictment from which he may fully ascertain the matters charged. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App. 1980). To presume that an accused is guilty and therefore knows already the details of his offense, and thus can adequately prepare his defense, despite a vague indictment, is contrary to all proper principles of justice. If, in the name of justice, however, the law requires that we strain its interpretation and application beyond the realities of the facts of the case, then justice not only is ill-served, it is defeated. Therefore the law does enable the courts to sustain indictments where substantial certainty is alleged, although complete certainty may be lacking. V.A.C.C.P. art. 21.11 states in pertinent part: "An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment...." 937 Accordingly, while an indictment must give an accused full and complete notice of the offense with which he is charged, the State is not required to plead evidentiary facts which are not essential to provide such notice. May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981). Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980). For example, most of the Penal Code sections which describe conduct constituting an offense begin with the words "A person commits an offense if ..." The conduct is prosecutable and punishable only when committed by a person. Yet the fact that the accused named in the indictment is a person is a non-essential allegation, because in esse, he or she is a person. The law appears to indulge the presumption that, unless controverted, the accused named in the indictment is a person and not a mechanical or electronic robot device, or an animal, to which someone has merely assigned a name typical of those used by human beings. Appellant testified in his own defense and did not controvert the fact that he is a male. If the existing indictment in the instant case had also included an allegation that the accused is a male, then very sensibly, the failure to allege that he is not married to the male child (victim) would not be a fatal flaw. Their non-spousal status would be inferred. Jacquez v. State, 579 S.W.2d 247 (Tex.Cr.App.1979). In this state, it is not possible for a marriage to exist between persons of the same sex. They may not marry one another, either with or without formalities of law. Jacquez, supra. "Spouse" is a synonym for both "husband" and "wife", as the parties to a marriage. The American Heritage Dictionary (1970). It should follow that when the offense charged is indecency with a child, and (a) the indictment alleges only the sex of the child, but (b) the accused in esse is of the same sex, then (c) neither person can be the other's spouse, either de jure or de facto. We hold that when the indictment alleges the sex of the victim and it is in fact the same as that of the accused, then an allegation to negate their spousal relationship is, on its face, meaningless surplusage and not essential to the task of informing the accused of the specific charge against him. The absence of such an allegation, upon those facts, should not render the indictment fatally defective. The case is distinguishable from those of indictment for rape, in which the participants were male and female. There a spousal status between the participants is indeed a possibility which makes it essential that the indictment contain an allegation negating such a relationship between accused and victim. In the instant case, however, neither participant can be the other's spouse, any more than a person can simultaneously be man and fish. It is an incurable impossibility. Reality compels the conclusion that the existing indictment could not have abridged appellant's right to know precisely the offense charged; nor his ability to prepare his defense against that charge. Under Texas law, a defense that the appellant and victim were married would not have been available to the appellant in any event. Jacquez, supra. The indictment sufficiently informed appellant that he was accused of exposing his genitals, and having the requisite intent, to a male child. We hold the deepest and most profound respect for the rules governing our criminal procedure and for the unassailable rights of a person who stands accused within our system of criminal justice. The corollary of those rules and rights, however, is that they must at all times blend with common sense in an equitable 938 balancing of the rights of the accused with those of society. The rules therefore wisely include Art. 21.11 which allows indictments to survive on a foundation of substantial certainty. Within that framework, we must conclude that the indictment sufficiently apprised appellant of the essential elements of the charge against him and did not prejudice his rights. Upon the facts of this case, to ignore the uncontroverted and indeed undeniable fact that appellant is a male, and to reverse his conviction by rigidly presuming his inability to fully understand the charge absent an allegation informing him that he is not the male child's spouse, fails to enhance the principles of justice. We must never allow our sense of expediency to trample or even bend constitutional or statutory rights. The result would undeniably be counterfeit justice. It seems equally intolerable that we subvert justice by indulging a synthetic presumption that the indictment, under the facts of this case, lacked substantial certainty. It was a similarly artificial presumption which evoked Charles Dickens' memorable line in Oliver Twist: "If the law supposes that ... the law is a ass ...". It should not, indeed must not, be so. Appellant's fourth ground of error which complains of the indictment's failure to allege a culpable mental state is without merit. Clark v. State, 558 S.W.2d 887 (Tex. Cr.App.1977); Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.1977). The fifth ground asserts that appellant was prejudiced by inadmissible testimony that he is a homosexual. Upon the facts of this case, we hold that the probative weight of the evidence of appellant's homosexuality outweighed any inflammatory or prejudicial aspects it may have had, and the admission of such evidence was not error. Stone v. State, 574 S.W.2d 85 (Tex.Cr.App.1978); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1973). We overrule all of appellant's grounds of error and affirm the judgment. HUGHES, Justice, dissenting. I respectfully dissent only inasmuch as the indictment fails to state that appellant was not the victim's spouse. That part of the statute defining indecency with a child under which appellant was convicted, V.T.C.A., Penal Code Sec. 21.11(a)(2) (1966), reads as follows: (a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: . . . . . (2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person. There is no question that Section 21.11(a)(2) contemplates that an accused has not committed an offense if the person to whom he has exposed himself is his spouse. Stated differently, it is an essential element of the offense that the victim not be the spouse of the accused. It has been repeatedly held that an indictment must allege all essential elements of the offense charged. Ex Parte Clark, 588 S.W.2d 898 (Tex.Cr.App.1979); Holcomb v. State, 573 S.W.2d 814 (Tex.Cr.App. 1978); Ex Parte Mathis, 571 S.W.2d 186 (Tex.Cr.App.1978). An indictment which fails to allege all elements of the offense is void, since it fails to charge an offense against the law and thereby invoke the jurisdiction of the trial court. Ex Parte McCurdy, 571 S.W.2d 31 (Tex.Cr.App.1978); Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr. App.1977); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App. 1974, appeal dismissed 419 U.S. 1098, 95 S. Ct. 767, 42 L. Ed. 2d 795). It cannot be denied that appellant had actual notice that the victim was not his spouse. However, the two functions of an indictment, to give adequate notice to the accused and to invoke the jurisdiction of the *939 trial court, are distinctive. Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). This case is distinguishable from Jacquez v. State, 579 S.W.2d 247 (Tex.Cr.App.1979). There the face of the indictment contained allegations which made it legally impossible for the accused to have been married to the victim. The indictment in this case contains no such allegations.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509637/	282 F. Supp. 667 (1967) Ellen HENNIGAN, Administratrix of the Estate of James C. Hennigan, Dec'd. v. ATLANTIC REFINING COMPANY and City of Philadelphia. Bonnie RIDDICK, Administratrix of the Estate of John Riddick, Dec'd. v. ATLANTIC REFINING COMPANY and City of Philadelphia. Roger A. JOHNSON, Administrator of the Estate of Robert C. Wilson, Dec'd. v. ATLANTIC REFINING COMPANY and City of Philadelphia. Civ. A. Nos. 32433, 33306 and 32928. United States District Court E. D. Pennsylvania. November 9, 1967. 668 David Cohen, James E. Beasley, Sheldon L. Albert, Beasley, Albert, Hewson & Casey, Philadelphia, Pa., for Ellen Hennigan. Norman Paul Harvey, Liebert, Harvey, Bechtle, Herting & Short, G. Wayne Renneison, Philadelphia, Pa., for Atlantic Refining Co. Vincent C. Veldorale, Joseph J. Murphy, Murphy, Veldorale & Weisbord, Philadelphia, Pa., for City of Philadelphia. Richard W. Hopkins, Thomas Raeburn White, Jr., White & Williams, Philadelphia, Pa., for Driscoll Construction Co. William L. Meritz, Zarwin, Prince, Baum, Steerman & Somerson, Philadelphia, Pa., for Bonnie Riddick. 669 John J. Cahill, John J. Cahill, Jr., Cahill, Cahill & Lynch, Philadelphia, Pa., for Roger A. Johnson. HIGGINBOTHAM, District Judge. I. AMENDED OPINION These cases were consolidated and tried to a jury which returned verdicts in favor of each of the three plaintiffs in their actions against defendant, City of Philadelphia, (hereafter called the "City"), and against each of the three plaintiffs in their actions against defendant, Atlantic Refining Company (hereafter called "Atlantic"). In accordance with findings of the jury as expressed in answers to special interrogatories,[1] judgment was entered in favor of each of the plaintiffs against the City and against the City in its cross claim against Atlantic. The City now moves for judgment notwithstanding the verdict, or in the alternative, for a new trial. In addition, the City seeks an order crediting it with the amount paid to the plaintiffs as workmen's compensation and the amount paid to the plaintiffs by Atlantic, pursuant to a settlement. Atlantic has also moved for judgment on its cross claim against the City for the amount paid by it to plaintiffs pursuant to the settlement, plus costs and reasonable attorneys' fees. Jurisdiction was based on diversity of citizenship, and therefore Pennsylvania law is to be applied. After careful consideration of the myriad claims of the City both individually and cumulatively I find no basis for granting the relief sought by those claims. Since this case could have been settled for considerably less than the amount of the verdicts, counsel for the defendant, City of Philadelphia, in a manner of seeming desperation has now saturated the Court with 76 claims in support of his motions. He has synthesized within his motions matters of utter irrelevance, frivolousness and insignificance. This "shotgun" approach makes it difficult for any Court to discern whether any of the pellets sprayed by defendant may even inferentially have some substance. Nevertheless, in view of the magnitude of the total verdicts $464,300.00 I am attempting to answer those issues which probably have the most relevance. With respect to the scores of other conglomerate allegations urged by the City's counsel, I have found that these assertions individually and cumulatively are without merit; however, I have refused to discuss each of counsel's conglomerate claims since it would require an unnecessary extension of this present 43 page opinion. II. FACTS Each of the three decedents was employed by the Driscoll Construction Company (hereafter called "Driscoll" or "contractor") on the work of constructing a sewer for the City. The project was to run under 26th Street between Penrose Avenue and Passyunk Avenue, adjacent to Atlantic's "tank farm". Construction was to be by the tunnel method. At 8:00 A.M., August 22, 1962, the decedents entered the tunnel at shaft 5 to begin their work. Approximately 15 minutes later there was an explosion and fire in the tunnel adjacent to that shaft and all three men were killed. A fourth workman, Mr. Gregory, was also killed in this accident. However, his estate did not file suit in the Federal Court. The plans and specifications for the sewer project were drawn by the Design Division of the City's Water Department (N.T., 90-103, 1398-1400). It was their decision that it be done in tunnel rather than by open trench method (N.T. 155). Pursuant to this design, the water table ran through the tunnel (N.T. 151). Prior to the time the contract was let, the City knew the soil in the area was coarse 670 and porous (N.T. 151-152; 1435). The City also had extensive prior knowledge that the ground in the area was likely to be saturated with hydrocarbons (i.e. petroleum products) (N.T., 1456, 2198; City's Answers to Riddick interrogatories 1 and 12, and to Hennigan interrogatory 19), and that they were likely to be encountered at the water table (N.T., 517, 518, 1326-36, 1430, 1441-43, 1456). The contract specifications required that an inspector from the Construction Division of the Water Department be at the job site at any time work was being done. It was his primary responsibility to see that the plans and specifications were followed (N.T. 461, 1485, 1444). These plans and specifications included a requirement that the contractor comply with the regulations of the Bureau of Mines, Explosives and Quarries of Department of Labor and Industry of the Commonwealth of Pennsylvania (N.T., 2188-2189). Each inspector was provided, by the Water Department with a copy of the "Guide for Inspectors" (Exhibit P-36), and it was gone over in detail with them. It was prepared under the direction of Water Commissioner, Samuel Baxter (N.T., 2188), and was intended as " * * a bible for their inspections." (N.T. 461). Included among the duties of the inspector set out in the "Guide" are detailed instructions concerning both the manner of work and the safety of the workmen.[2] Both Commissioner Baxter and Mr. Samuel Wilson, Chief of the Water Department's Construction Division, testified 671 that the Inspector had a definite responsibility for the safety of the workmen, and that the Inspector could order a job, or a portion thereof, stopped to protect the safety of the employees as well as to insure compliance with other specifications (N.T., 475, 485, 2190, 2194, 2196. See also testimony of Mr. M. J. Driscoll, N.T., 1774-75.) Prior to the date of the accident, the log book of the Contractor, (Exhibit P-83) showed, inter alia, the following entries: May 17: " * * gas very strong." May 18: "* * * gas very strong." May 22: "* * * gas bad." May 24: "* * * hit gas at 15 feet." May 28: "* * * oil, water and gas very bad." May 29: "* * * gas very very bad." June 7: "* * * hit water gas and oil at 30 feet." June 13: "* * * set up and used 14 inch blower. Gas not too bad with same." June 16: "* * * Gas and oil in shaft caught fire with one spark from torch * * ." June 27: " * * Need three blowers." July 6: "* * * Gas too bad. Pull everything out of hole and move to Number 6 shaft." July 7: "Gas about one foot in bottom of tunnel." July 12: "Using large blower * * * and also gas masks." July 13: "Shut down number 5 and 6 shafts for a few days to see if there is a solution to the gas problem." August 4: "Shaft has plenty of gas." August 20: "* * * fumes strong." On June 8, 1962, the City's Inspector on the job sent a "Rush Sample" (N.T., 418) of liquid taken from shaft 7 to the Water Department's Materials Testing Laboratory, requesting that it be tested for poisons and explosive possibilities. (N.T., 353-59, 361, 392, 396). Because of the highly inflammable nature of the substance revealed by the initial tests, an immediate report was made by telephone. (N.T., 367-68). In the formal report, sent to the Construction Division eleven days later, the sample was said to be petroleum products having an "ignition point at room temperature." (N.T. 361-62; 366-69). Had this report been made known to the Chief of the Construction Division, the entire job would have been stopped to find out if the condition existed elsewhere and if something could be done. (N.T. 475). Moreover, the reasonable and appropriate practice to be followed in the industry, as stated by the Chief of the Bureau of Mines, Quarries and Explosives of The Commonwealth of Pennsylvania, would have been to vacate the tunnel and shut down the job as soon as the inspector became aware of the presence of explosive vapors in the tunnel. Anything that could have caused a spark should have been removed and the job should not have been reopened until the tunnel had been properly ventilated. (N.T., 855, 859-62.) 672 Despite all of this warning about the danger of fire and explosion, and despite the daily and continuous presence of the City's Inspector, the Contractor continued to use, in the tunnel: (1) Steel muck carts on steel tracks; (N.T., 630); (2) An unsealed, non-explosive type electric sump pump, (N.T., 631-32, 661); (3) Steel tunnel bolts, (N.T., 631); (4) Unsealed electric plugs, (N.T., 662); (5) Taped electric wire with "home-made" splices, (N.T., 659-60, 737); (6) Non-explosive-proof electrical fittings, (N.T., 839, Exhibit P-77); (7) Metal wire to hold cable to metal tunnel liner plates, (N.T. 665, 667, 859); (8) Unguarded electric light bulbs, (N.T. 661-62, 751-52). III. Plaintiffs contended that the City was negligent with respect to both their design of the sewer, including the drawing up of plans and specifications, and, separately and in addition, the manner in which the City exercised the control which it retained over the manner and method of the work. Following the appropriate suggestion of the Court of Appeals for this Circuit, as to the advantages of submitting factual interrogatories to the jury, pursuant to Rule 49, F.R.Civ.P., separate instructions and separate interrogatories were given to the jury for the issues concerning design and for the issues concerning control. In this way, if any errors were committed on any one phase, and if there was a separate and independent ground on which liability could be predicated, the Court of Appeals will have the advantage of specific findings, and thus not be forced to order the retrial of the entire case. See Albergo v. Reading Co., 372 F.2d 83, 86 (3rd Cir., 1966); Pritchard v. Liggett & Myers Tobacco Co., 370 F.2d 95 (3rd Cir., 1966); Cate v. Good Brothers, 181 F.2d 146, 148 (3rd Cir., 1950). These separate findings are of particular importance in this case, since from my view, as from the jury's view, the evidence totally preponderates in establishing the negligence of the City both in the manner in which it designed the project in placing the tunnel at the water table, in an area in which the soil was permeated with petroleum products, without establishing appropriate and explicit standards for assuring safe working conditions and also in the manner in which it exercised that control which it retained through its contract with Driscoll. A. DESIGN OF THE SEWER With respect to the design of the sewer, the City knew or should have known: (1) The project site was adjacent to a petroleum tank farm; (2) There was likely to be petroleum in the soil at such a site; (3) The porous soil at this project site was conducive to the continuous and rapid flow of water and other liquids; (4) Petroleum floats on water; (5) Petroleum products vaporize in air readily; (6) Petroleum vapors may be ignited readily by sparks from any source, and if mixed with a certain percentage of air, will then explode; (7) The project went through the water table. In spite of their knowledge of these factors, which rendered their work in this tunnel particularly susceptible to fire and explosion, the City's Design Department failed to specify particular precautions to be taken to minimize the danger, or in the alternative, to avoid going through the water table at this site. Thus, the jury's finding that the City was negligent with respect to the design of the sewer is clearly supported by the evidence. B. CONTROL BY THE CITY Counsel for the City urges the Court to hold that, as a matter of law, having retained a competent independent contractor, the City is not liable for any injury to the contractor's employees caused 673 by it is argued the negligence of the contractor. So phrased, the argument misconstrues the theory put forth by the plaintiffs which is that the City did retain control of the manner of operation by the contractor, that in the exercise of that control they were negligent and that that negligence was a proximate cause of the accident in which the decedents were killed. Support for plaintiffs' position is found in the decisions of the Pennsylvania Supreme Court and of the Court of Appeals for the Third Circuit as well as in the Restatement of Torts.[3] 1. Authority In Stork v. City of Philadelphia, 199 Pa. 462, 49 A. 236 (1901), a land owner sued the City for damage to property caused when the adjacent ground gave way due to faulty shoring in the construction of a subway for the City by Flynn, an independent contractor. "* * * It appeared that the city retained the right to determine when an underpinning or shoring up of foundations should be done. The city refused to authorize the shoring up of plaintiff's house, when the excavation was first made, and this resulted in serious damage to the property. "The undisputed evidence shows that the city not only retained the right to determine when any underpinning or shoring up of foundations should be done * * * but did in fact refuse or neglect to authorize the shoring up of plaintiff's house when the excavation was first made. This omission was the negligence complained of as the cause of the injury. There was evidence, therefore, on which the case must have gone to the jury * * ." Similarly in Spinozzi, Pennsylvania Threshermen & Farmer's Mut. Cas. Ins. Co., Intervenor v. E. J. Lavino & Co., 243 F.2d 80 (3rd Cir., 1957), Judge Kalodner pointed out: "Both parties concede, and it is apparent from the record, that Morello (plaintiff's employer) stood in the position of an independent contractor. Plaintiff urges, however, that Lavino owed a duty of care to the decedent due to the control it retained over the job, and, as a result of its failure to provide shoring, Lavino should be liable for the harm to decedent. "It is the general rule that the employer of an independent contractor is not responsible for the misconduct of the contractor while the latter is performing under the terms of the contract. Painter v. Mayor, 1863, 46 Pa. 213; Allen v. Willard, 1868, 57 Pa. 374. The rule is justified on the ground that since the employer does not control the work being performed, he should not be liable for the harm resulting from the substandard performance of the independent contractor. Following this line of reasoning, it is apparent that where the employer has retained some element of control of the job, he[4] should be responsible for the harmful consequences of its performance as a concomitant of the control retained. The Pennsylvania courts have recognized that the employer should be liable where he has retained control of some part of the work * * and his failure to exercise that control with reasonable care causes harm to others. Pender v. Raggs, 1896, 178 Pa. 337, 35 A. 1135; Stork v. [City of] Philadelphia, 1901, 199 Pa. 462, 49 A. 236; McGrath v. Pennsylvania Sugar Co., 1925, 282 Pa. 265, 127 A. 780. * * " (Emphasis added.) 243 F. 2d at 82-83. Judge Kalodner thus makes it quite explicit that the land owner who employs an independent contractor may 674 be liable for injuries to the contractor's employees if the land owner has either (1) retained control of the work or (2) actually exercised control or interfered with the work to such an extent as to have assumed control, and if his failure to exercise that control in a reasonably prudent manner is a proximate cause of injury. Quinones v. Township of Upper Moreland, 293 F.2d 237, 241 (3rd Cir., 1961), Jamison v. A. M. Byers Co., 330 F.2d 657, 658-660 (3rd Cir., 1964). Restatement 2d, Torts, §§ 414, 416 (1965). The City anchors its argument on the following language quoted at page 19 of its brief from Silveus v. Grossman, 307 Pa. 272, 161 A. 362 (1932): "The very phrase `independent contractor' implies that the contractor is independent in the manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work, and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority." 307 Pa. at 277-278, 161 A. at 364. In that case defendant's building was destroyed by fire which left only one wall standing. Thereafter, at the direction of the Borough authorities he hired a builder to remove the wall, which was menacing plaintiff's adjacent property. In the course of the work, the wall buckled and collapsed onto plaintiff's property. Plaintiff sued both the defendant-land owner, and the contractor. A jury verdict in favor of plaintiff and against the adjacent land owner was reversed by the Superior Court which ordered that defendant's motion for judgment N.O.V. be granted. On appeal, the Superior Court's decision was affirmed. In Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963), the property owner, Coplay, a cement manufacturer, purchased a stone crushing machine from Kennedy, and hired Kiefriter to build a structure to house the machine and to install it. Under the contract, Coplay could make use of any of the technical employees of Kennedy to superintend the erection or operation of the machinery. At such times Coplay would pay the employer according to a payment schedule under the contract. Coplay under those provisions, "borrowed" one Warfield from Kennedy and during this period, plaintiff, Hader, an employee of Kiefriter, was injured while working on the construction. Hader sued Coplay and the trial court awarded a non-suit to Coplay. On appeal, the Supreme Court affirmed, declaring: "* * * The common sense of this arrangement is apparent. Coplay, a cement manufacturer, lacking knowledge in its organization of the manner of installation (emphasis supplied) of a stone crusher, availed itself of the services of one who was familiar with the manner in which a stone crusher should be installed, so that Coplay might be assured that Keifriter with whom Coplay had contracted to install the crusher was installing the crusher in accordance with the plans and specifications and in a proper and workmanlike manner. * * * "* * * An examination of the record clearly reveals that Warfield was acting as a `watchdog' for Coplay to make sure that Keifriter installed the crusher and erected the housing in accordance with the plans and specifications. * * * Warfield's presence on the job site on behalf of Coplay and the functions which he performed in nowise demonstrated any control by Coplay of the manner of installation of the crusher." 410 Pa. at 147, 189 A.2d at 275-278. "* * * Spinozzi [Pennsylvania Threshermen & Farmer's Mut. Cas. Ins. Co., Intervenor] v. E. J. Lavino and Co., * * * and Quinones v. Township of Upper Moreland * * * are clearly distinguishable on their facts from the case at bar." 410 Pa. at 271, 189 A.2d at 279. In Celender v. Allegheny County Sanitary Authority, 208 Pa.Super. 390, 222 675 A.2d 461 (1966),[5] plaintiffs were employed by a contractor, Mole, as concrete finishers on a sewer construction project for the defendant. The Authority had been created to provide for the development of a new sewer disposal system for the county. In pursuance of this purpose some twenty contracts were let for different phases of the work. The Authority did have an inspector for each contract, but did not control the method of carrying out the work. The two functions of the inspector were (1) to see that the plans and specifications were being carried out, and (2) to see that adequate safety precautions were taken.[6] On the day of the accident, plaintiffs were travelling from one assigned job site to another and stopped at an underground structure, known as "Vault U-1", to look for a rubbing stone that one of the plaintiffs had left there previously. It being dark in the chamber, one of the plaintiffs struck a match. Gas in the chamber ignited, and the men were severely burned. At that time, Vault U-1 was not being worked, and in fact, its entrance was covered and surrounded by a wire fence. No one knew that the plaintiffs or any other workmen would be there.[7] A non-suit was granted to the Authority at the close of plaintiff's case. In denying plaintiff's motion for removal of the non-suit, the Court of Common Pleas held: " * * The contractor was in charge of the work. The particular structure where the accident occurred was capped on * * * [the day of the accident.] The men removed this cap and went in to search for a tool. The Authority is entirely too remote from this operation * * . It neither knew nor should have known that the men would enter the structure that day. " * * In the case at bar we can find no evidence whatsoever of control of the premises by the Authority. The last witness for the plaintiffs * * * testified that he had been employed by the Authority as an inspector and had, on a number of occasions ordered certain precautionary measures to be taken by the contractor. It appears from his entire testimony however, that he * * * had no right to stop work but only to report conditions to his supervisor * * " "We are unable to find in this record even a scintilla of evidence of negligence on the part of the Authority * ."[8] The Superior Court affirmed, based principally on the authority of Hader v. Coplay, supra, and distinguishing the rule set out in Section 414 of Restatement, 2d, Torts on the basis of comment C thereto. Analysis of the facts and both opinions[9] in Celender reveal two facts which distinguish it from the case at bar. 1. The Authority, not being expert itself, retained only such supervisory control as it needed to see to it that it got the finished product for which it had contracted, and to try to protect the workmen from undue risk of injury. 2. Regardless of how this control is characterized, the plaintiffs failed to introduce any evidence that it was not exercised in a reasonably prudent manner or that there was any reasonable relationship between the exercise of that control and the accident. Similarly, in Peter v. Public Constructors, Inc., 368 F.2d 111 (3rd Cir. 1966) although the general contractor might have chosen to reserve control of the " * * details of the independent contractor's performance * * " in which case he might have been liable for " * * negligence in the execution of the work * * ," 368 F.2d at 113, the Court found that the general contractor in fact did not retain nor exercise such control. "The present record contains no evidence of actual exercise of control by 676 Public [general contractor] over [subcontractor] Reid's performance of the bridge demolition project. Accordingly, the trial court properly found that there was in fact no such exercise of control. "We think it equally clear that, in contracting with Reid, Public did not reserve a right to control the way in which Reid would conduct its operations * * ." 368 F.2d at 113 (Emphasis added.) 2. Reservation of Control Under the Contract With Driscoll. From the uncontroverted competent evidence of record in the case at bar it is abundantly clear that the City retained the right to control the manner and method of performance by the contractor of the contract, and that its negligent exercise of that control bore a direct, foreseeable, causal relationship to the deaths of the decedents. So clear are the facts that but for the question of the jury's finding that the City's conduct was in reckless disregard of the safety of others,[10] I would not set out these details. Based on its many years of experience in the design and supervision of sewer construction, the City Water Department maintained its own Design Division which prepared the plans and specifications for this project and its own Construction Division which designated engineers and inspectors to supervise the actual construction. The plans and specifications,[11] as prepared by the Design Division, contained the following detailed provisions covering the manner and method of performance by the contractor and the daily supervisory control to be exercised by the City during the continuation of the project: "Standard Contract Requirements. "16. Definitions * * "`Engineer' to mean either the Chief Engineer of the Department for which work is done * * * or any deputy * * * "`Inspector' to mean the representative of the Engineer assigned to the inspection of materials and workmanship under the contract." (p. 4.) (Emphasis added.)[12] "19. Contractor's Obligation "* * * If at any time the Contractor's methods force or equipment appear to the Engineer to be unsafe, insufficient or inadequate for the proper performance of the provisions of the contract, he may order the Contractor to make such changes as he may deem necessary, and the Contractor shall comply with such orders * * " (p. 6.) (Emphasis added). "32. Status and Authority of Engineer The Engineer shall have general supervision and direction of the work, the interpretation of the Plans and Specifications, the ordering of additions to or deductions from the work, and the determination of procedure. He shall give all orders and directions contemplated under the contract * He shall determine all other questions that may arise in relation to the execution of the work. He shall have authority to halt the work whenever such action may be necessary to secure the safe and proper execution of the contract * * " (p. 6) (Emphasis added.) "42. Inspection All of the work of the contract shall be subject to the supervision and inspection of the Engineer or his designated representatives, and the contractor shall afford every facility for the inspection of materials and workmanship. * * Authorized representatives of the Department shall be permitted access at all reasonable times to all portions of the work * * * No materials shall be used on the work until accepted by the Engineer and all materials rejected by the Engineer as unsuitable or not in conformity with the Plans and Specifications shall be immediately removed from the work. * * * All work shall be presented in the presence 677 of the Inspector. * * Work shall be done only during regular working hours unless specifically authorized or directed otherwise by the Engineer. * * " (p. 9) (Emphasis added.) "49. Prosecution of the Work The method of procedure shall be subject to approval as best adopted for the safe, efficient, and expeditious prosecution of the work, with a minimum of interference with public traffic and convenience. Work shall be performed at such times and at such places as may be ordered or approved by the Engineer. * " (p. 9.) (Emphasis added.) "54. Construction, Methods to be Approved Before commencing work, the contractor shall, when required by the Engineer, submit for approval his proposed methods of prosecuting the work * " (p. 10) In addition to these examples of continuing control by the City, the Special Specifications of the Contract contain particularly detailed requirements as to the actual work of constructing the sewer.[13] I find it difficult to conceive of a greater reservation of control by the City of both the manner and method of the work and of the day-to-day supervision. My conclusion is further supported by the testimony of Water Commissioner Samuel Baxter,[14] and Samuel Wilson,[15] head of the Construction Division, as to their understanding of the City's rights and responsibilities under the contract to see that the contractor had proper equipment, took adequate safety precautions, provided adequate supervision, and to stop the job if necessary to protect the workmen. The conclusion is thus unavoidable that as a matter of law the City, through its contract with Driscoll, retained the right to control the manner and method of the latter's performance. 3. Negligence By The City In The Exercise of Control. The jury's answer to interrogatory 2(A) speaks for itself. There can be no doubt that the evidence, as set out above supports that conclusion. 4. Proximate Cause. Here, too, the jury's answer to interrogatory 2(B) speaks for itself and is supported by the evidence. Furthermore, since in every possible explanation of the accident about which there was any evidence, the presence of a dangerous level of gaseous vapors was an essential ingredient, there is no need to consider the question of sufficiency of proof as between several possible causes.[16] C. SUPERSEDING CAUSE TO RELIEVE THE CITY FROM LIABILITY. " * * So long as no person was permitted to enter the tunnel to work therein, the failure to comply with the regulations would have harmed no one. However, as soon as persons were permitted to work in the tunnel, Driscoll had a duty to see that its workmen had proper gas masks or blowers powerful enough to exhaust and bring in clear air into (sic) the tunnel * * ." Brief of City of Philadelphia re its Motions for Judgment N.O.V., et seq., at 32. Defendant, City of Philadelphia's argument, considered in the light of the uncontroverted facts in this case is tantamount to saying that it had the right to gamble its liability for injury to the workmen on the infinitesimal chance that there would be no accident; and that, if there were, Driscroll, alone, would be held liable. " * * The law is not so unaware of reality that it will permit a tortfeasor 678 to turn his wrongful act into an immunity by asserting that the eventual damage resulted from a more immediate cause when it is clear that this immediate cause was put into operation by his own tortious conduct." Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344 (1955). An intervening negligent act or omission which combines with a prior negligent act or omission to cause an accident will relieve the former from liability only where the latter " * * was so extraordinary as not to have been reasonably foreseeable, and * * * [unlike the basis for determining foreseeability with respect to direct negligence] whether the act was reasonably foreseeable [is] to be determined by following retrospectively the sequence of events and looking back from the harm to the negligent act rather than by considering whether the defendant should prospectively have envisaged the events which unfolded and caused the accident." Wilson v. American Chain and Cable Co., 364 F.2d 558, 562 (3rd Cir., 1966); Shimer v. Bangor Gas Co., 410 Pa. 92, 97, 188 A.2d 734 (1963). I have found nothing in the record nor in the briefs and arguments of counsel that would lead me to set aside the jury's findings,[17] that there was no superseding cause which, under the law, could relieve the City from liability. D. LIABILITY OF ATLANTIC 1. Superseding Cause Unlike the question of the relationship between Driscoll's conduct and the City's liability, the question of the City's conduct and Atlantic's liability[18] falls squarely within the rules governing superseding cause, as enunciated by the Pennsylvania Courts, the Court of Appeals for the Third Circuit, and the Restatement. In Kline v. Moyer, 325 Pa. 357, 191 A. 43, 111 A.L.R. 406 (1937), the defendant, Albert, had been driving on the highway towards Reading when the rear axle on his truck broke. Being alone, he left the truck and went to seek assistance. All four wheels were on the roadway. Thereafter, defendant, Moyer, proceeding in the same direction approached Albert's vehicle. He was unable to stop in time to avoid hitting it and swerved into the oncoming traffic lane, striking the car in which plaintiff was a passenger. Plaintiff sued and recovered a verdict against both defendants. The trial court granted Albert's motion for judgment N.O.V. and plaintiff appealed. Mr. Justice (later Chief Justice) Stern for the court reviewed a number of cases involving prior and subsequent acts of negligence leading to an injury to a third party. He found the cases distinguishable based on whether or not, at the time the subsequent actor was negligent he had knowledge of the dangerous condition created by the prior act. In remanding the case for a new trial to determine whether Moyer's conduct was negligent after he became aware of presence of Albert's vehicle, he said: "* * * We would formulate the general principle as follows: Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its 679 proximate cause. * " 325 Pa. at 364, 191 A. at 46.[19] This rule has been somewhat modified. An intervening negligent act is not always a superseding cause which relieves an antecedent wrongdoer from liability for negligently creating a dangerous condition which results in injury. In determining whether an intervening force is a superseding cause, the Pennsylvania Supreme Court in Hendricks v. Pyramid Motor Freight Corp., 328 Pa. 570, 574, 195 A. 907, 909, stated: "The answer to this inquiry depends on whether the (intervening) conduct was so extraordinary as not to have been reasonably foreseeable, or whether it was reasonably to be anticipated * ." See also Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 11, 130 A.2d 123, 130 (1957); Leposki v. Railway Express Agency, 297 F.2d 849, 850 (3rd Cir. 1962); Wilson v. American Chain and Cable Co., 364 F.2d 558, 561 (3rd Cir., 1966). Sections 442, 443 and 447 of Restatement, 2d, Torts provide the factors relevant to the determination of whether or not an intervening[20] act constitutes a superseding cause that would relieve Atlantic of liability. There is no need to discuss each section and the comments thereto in detail, since the instant facts permit neither question nor dispute. The degree to which the City's conduct was extraordinary is, perhaps, best highlighted by the fact that the jury considered it so grossly negligent as to amount to a reckless disregard of the safety of others. I find as a matter of law that the City's conduct, after the alleged seepage of Atlantic's petroleum products into the ground under the highway, and after the City had knowledge of the invasion and of the danger created thereby, was so extraordinary as not to have been reasonably foreseeable and thus would be a superseding cause of the injuries and deaths of decedents. 2. Trespass Assuming, without deciding that the evidence would support findings that the petroleum products which ignited in the tunnel causing the explosion and fire in which decedents were killed came, in whole or in part, from Atlantic's property, the invasion was not an invasion of any right of the decedents. Kopka v. Bell Telephone Co., 371 Pa. 444, 91 A.2d 232 (1952) holds that consequential damages to the owner of the property are recoverable in an action for trespass to the property, and the Restatement 2d, Torts, § 162 (1965) extends liability to members of the household of the possessor. However, in keeping with the basic principle that actions for trespass to land are primarily to redress invasions of the right to exclusive use and possession thereof,[21] the Restatement expresses no opinion as to liability to servants of the possessor who, though not members of his household are nevertheless resident thereon. Decedents herein were neither the servants nor employees of the possessor the City nor resident on the property.[22] While I have found no Pennsylvania cases dealing with injuries to persons bearing such relationship to the possessor of land arising out of non-negligent, trespassory intrusion to the land, I do not believe that the Courts of the Commonwealth would extend Kopka and the 680 Restatement rule to permit these plaintiffs to recover from Atlantic. 3. Nuisance. The applicable law under the doctrine of "nuisance" was clearly defined by the Pennsylvania Supreme Court in the case of Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310, 54 A.L.R. 2d 748 (1954), where it was held: "It is our view that [Restatement, Torts] Section 822 comprehensively encompasses the entire statement of principles of liability * * ." Id., 379 Pa. at 454, 109 A.2d at 317. Section 822 reads as follows: The actor is liable in an action for damages for a non-trespassory invasion of another's interest in the private use and enjoyment of land if, (a) The other has property rights and privileges in respect to the use or enjoyment interfered with; and (b) the invasion is substantial; and (c) the actor's conduct is a legal cause of the invasion; and (d) The invasion is either (i) intentional and unreasonable; or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct." Restatement, Torts, § 822 (1939). Section 823 defines "Persons Who Can Maintain an Action". Section 825 defines "Intentional Invasion * ". Sections 826 through 831 define and set out rules for balancing "gravity v. utility" for purposes of determining when the invasion is "unreasonable." My review of the record reveals not the slightest bit of evidence from which it could be determined that the decedents had "property rights and privileges in respect to the use or enjoyment interfered with" nor that the presence of petroleum products in the soil were, with respect to Atlantic, either avoidable or otherwise unreasonable. Thus, I find that the plaintiffs and the City having failed to provide any evidence that Atlantic had created or maintained a nuisance which invaded any right of the decedents herein and which contributed to this accident, the City has no right to contribution from Atlantic. 4. Ultrahazardous Activity Chapter 21 (§§ 519-24) Restatement, Torts, dealing with Ultrahazardous Activities, has been adopted in Pennsylvania. See Fedorff v. Harrison Const. Co., 362 Pa. 181, 66 A.2d 817 (1949), Haddon v. Lotito, 399 Pa. 521, 161 A.2d 160, 81 A.L.R. 2d 1199 (1960), McSparran v. Hanigan Const. Co., 225 F. Supp. 628 (E.D.Pa., 1963). However, we have been able to find no cases in Pennsylvania or in this Circuit determining whether or not the maintenance of a petroleum tank farm in an industrial, non-residential area is per se an ultrahazardous activity within the meaning of § 520.[23] In the case at bar the only testimony even tangentially relevant to the question of ultrahazardous activity was (1) Mr. Wakeley's testimony that the petroleum products indicated on the spectorgraph appeared to be like those stored at Atlantic (N.T., 1316); and (2) the general knowledge that the ground at or near refineries and tank farms was likely to be saturated with petroleum prodducts. (N.T., 577, 179, 80, 83, 2200.) There was no evidence of the practices employed by Atlantic or known and employed by others in the trade nor of the effect that such practices might have on leakage, spillage or seepage of petroleum. 681 There was no testimony from which the dangerousness of a tank farm could be distinguished from that of a large service station, or other business which involves the storage of large quantities of petroleum products. See Pryor v. Chambersberg Oil & Gas Co., 376 Pa. 521, 526, 103 A.2d 425, 427-428 (1954); Beck v. Bel Air Properties, 134 Cal. App. 2d 834, 839, 286 P.2d 503, 509 (1955). Thus, there was no factual basis from which either the Court or the jury could have found that Atlantic's operation constituted an ultrahazardous activity. E. CONTRIBUTORY NEGLIGENCE Throughout the trial, counsel for the City brought up that an employee of Driscoll, Mr. Steel, who went into the tunnel with one of the first rescue teams stated that he had found an opened package of cigarettes in the tunnel. Despite repeated assurances to the court that this would be tried in, not one additional fact was brought out to establish that any of the deceased men brought the cigarettes into the tunnel, or had smoked in the tunnel and if so which one and whether or not such smoking had actually caused this accident. To the contrary, Mr. Gass, the City Engineer, testified that he went into the tunnel and saw the pack of cigarettes after the time at which Steel was alleged to have brought them up. (N.T., 1609, 15, 30-32; 2172-73.) After careful examination of the entire transcript, I am constrained to state that the errors committed at trial with respect to this issue, if any there were, were in not requiring counsel for the City to state with greater precision how it would tie this evidence in as a possible cause of the accident and in the absence of such further evidence not to have withdrawn the matter from the jury's consideration.[24] See Papa v. Pittsburgh Penn-Center Corp., 421 Pa. 228, 218 A.2d 783 (1966). F. ASSUMPTION OF RISK (1) The defense of assumption of risk is not available to one other than the employer of the injured employee seeking recovery. Kulka v. Nemirovsky, 314 Pa. 134, 139, 170 A. 261 (1934); Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957). See also Grantham, J., concurring in Thrussell v. Handyside, 20 Q.B.D. 359, 367 (1888). (2) "It cannot be said, where a man is lawfully engaged in his work, and is in danger of dismissal if he leaves his work, that he wilfully incurs any risk which he may encounter in the course of such. * * * It is different where there is no duty to be performed, and a man takes his chance of danger, for there he voluntarily encounters the risk. If the plaintiff could have gone away from the dangerous place without incurring the risk of losing his means of livelihood, the case might have been different; but he was obliged to be there, his poverty not his will consented to incur the danger." Thrussell v. Handyside, id. at 364. All of the decedents in this case were working men. Typically, they relied on their regular pay checks to afford the necessities of daily living and to provide for their families. Also typically, they could ill afford to refuse to work in the tunnel when assigned to do so even assuming that they knew that it involved a serious danger of fire and explosion on the mere chance that their refusal would be vindicated at a later date and they would then be reimbursed for any loss of pay. See Falyk v. Penna. R. R. Co., 256 Pa. 397, 400, 100 A. 961 (1917). (3) "* * * There may be a perception of the existence of a danger without appreciation of the risk * * 682 Yarmouth v. France (1887) 19 Q.B.D. 647. While the workmen may have smelled gas fumes and known that they became lightheaded or nauseous from working in the tunnel, there was no evidence that they knew or should have known (a) that the vapors were at or near the explosive limit; (b) that a random spark from any source could cause a flash fire and explosion, and (c) that the equipment being used was likely to create such a spark. The evidence is only that the odor of petroleum permeated the area. But, there was not one shred of evidence that this odor or the training or the experience of the decedents was such that they " * * appreciate[d] the danger itself and the nature, character and extent which made it unreasonable * * ." Restatement 2d, Torts, § 496(D), Comment (b) (1965); Falyk, supra, at 401, 100 A. 961; Madden v. Lehigh Valley R. R. Co., 236 Pa. 104, 109, 84 A. 672 (1912); Valjago v. Carnegie Steel Co., 226 Pa. 514, 519-520, 75 A. 728 (1910). See also Restatement 2d, Torts, § 496 (D), Comment (c) and § 496(c), Illustration 7 to Comment (i). In view of the above, the error with respect to this issue, if any, as with the issue of contributory negligence, was in submitting the question to the jury for its consideration rather than ruling in favor of the plaintiffs as a matter of law. Nevertheless, since the jury has spoken and the evidence clearly supports their determination, the matter is closed. G. PUNITIVE DAMAGES 1. Under the Facts of This Case. "Although under Pennsylvania law a punitive award may be made against a corporation for an employee's tort, the conduct of the agent must be clearly outrageous to justify vicarious imposition of exemplary damages upon the principal. (citing cases) * * "`Punitive damages' are penal in character, * * * and are allowed only when defendant is guilty of * * such reckless disregard of the rights of others as to raise a necessary presumption on conscious indifference to consequences. * * " (Brief of Defendant, City of Philadelphia, at 61.) I accept defendant's statement of the law as noted above. However, the jury, which listened to all of the testimony and considered all of the evidence, under appropriate instructions, concluded that the City's conduct did amount to that degree of "reckless disregard of the safety of others."[25] Having carefully reviewed the record, I see no reason to set aside that finding. 2. Punitive Damages Against a Municipality. No Pennsylvania cases have been found expressly allowing or rejecting an award for punitive damages against a municipality. However, I do think that the cases shed substantial light on the problem. In New Castle Products, Inc. v. School District of Blair Township, 18 F. Supp. 335 (W.D.Pa.1936), an action based on diversity of citizenship seeking compensatory and punitive damages for conversion was dismissed for want of the $3,000 jurisdictional amount. The materials converted were valued at approximately $2,000, and the balance of plaintiff's claim for $3500 was based on punitive damages. In dismissing the case, the District Court ruled that punitive damages were not recoverable. Several factors, however, distinguish that case in such a manner as to support a decision allowing punitive damages in the case at bar. (a) New Castle Products was decided prior to the decision of the United States Supreme Court in Erie R. Co. v. Tomkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938) which held that in diversity cases the District Court was bound to apply the law that a state court in the forum state would have applied had the case been tried there. At that time, the federal district courts were free to ignore 683 the state rules, and fashion a general federal common law, see Swift v. Tyson, 16 Pet. (41 U.S.) 1, 10 L. Ed. 865 (1842), which is exactly what the court in New Castle Products did: "* * * The question of the liability of a municipal corporation, or a quasi municipal corporation, for punitive damages has not been passed upon by the appellate courts of Pennsylvania. There is dicta indicating such liability by municipal corporations. Armstrong & Latta v. City of Philadelphia, 249 Pa. 39, 94 A. 455 (1915) * * ; Spencer v. Carlisle Borough, 63 Pa.Super. 513. See Hermits of St. Augustine v. County of Philadelphia, Brightly N.P. (Pa.) 116 (4 Clerk 120, 7 Pa. L.J. 124); Howell v. Borough of West Chester, 26 Lanc.Law Rev. (Pa.) 201. * * "The great weight of authority outside of Pennsylvania is to the effect that municipal corporations are not liable for punitive damages. * * * "I am in accord with the [latter] * * * view * * ." New Castle Products, supra, 18 F.Supp. at 336-337. Thus it would seem, that to the extent that there was authority in the Pennsylvania courts on this point, that authority would hold the City to be liable for punitive damages. (b) The court either assumed or decided that the defendant, School District of Blair Township, was engaged in the performance of a governmental function. (Emphasis added.) In the case at bar, the City was engaged in a proprietary function. Quinones v. Township of Upper Moreland, 293 F.2d 237 (3rd Cir., 1961). In light of the wording of the City Ordinance waiving any immunity from tort liability of the City even for governmental functions that injured persons " * * shall have the right to bring suit against the City in accordance with the same rules of law as applied by the Courts of this Commonwealth against any other party defendant. * * " Philadelphia Code, Ch. 21-700 (1962). (Emphasis added.) and in light of the recent decisions of the Pennsylvania Supreme Court removing immunity from tort liability from charitable institutions,[26] I believe that the Pennsylvania courts, were they now to consider the question of liability of the City of Philadelphia for punitive damages growing out of its conduct of a non-governmental function, would hold, as I do here, that the City should be liable. 3. Under The Survival Act. The Survival Act[27] specifically states: "All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff * ." No mention is made of damages per se. We see no reason to read into the act a limitation on the nature or amount of recovery. Certainly, the legislature was aware that the courts of Pennsylvania recognized punitive damages in an appropriate case, when they passed the act. See Thompson v. Swank, 317 Pa. 158, 176 A. 211 (1934); Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15 (1938); Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944). Furthermore, since the function of punitive damages is to punish outrageous conduct and to discourage similar conduct in the future, Restatement, Torts, § 908, Comment (a) (1939), it would appear to be inconsistent to disallow such an award where the conduct of the defendant is not only reprehensible but in fact results in death. H. ATLANTIC'S CROSS CLAIM AGAINST THE CITY. Atlantic argues that under § 97 of the Restatement of Restitution,[28] had they been found negligent, since the jury found the City in reckless disregard of 684 the safety of others,[29] they would have been entitled to restitution from the City for the amount of their payment to the plaintiffs plus reasonable counsel fees,[30] and that a fortiori, since they were found not negligent they should be entitled to recover. This statement, however, begs the question for, as Comment (a) to § 97 states: "The rule stated in this section applies where the circumstances are such that both the payor and the other are liable to the injured person * * " Similarly, in Orth v. Consumers Gas Co., 280 Pa. 118, 124 A. 296 (1924), plaintiff's verdict against the Gas Company for indemnity followed the suit by injured parties against him in which his liability was established by an adverse verdict.[31] The Pennsylvania Supreme Court characterized the plaintiff's right as the right of one " * * who has been compelled to pay damages for a default arising out of the wrongful act of another to recover indemnity from the persons whose initial negligence was the primary cause of the injury. (citing authority) * * ." (Emphasis added.) Id. at 121, 124 A. at 297. In the case at bar, however, no liability on the part of Atlantic had been established at the time of their settlement with the plaintiffs. Thus, unlike the plaintiff in the case of Philadelphia Co. v. Central Traction Co., 165 Pa. 456, 461-462, 466, 30 A. 934 (1895) where a settlement of less than the amount of the verdict was made prior to appeal, and the defendant in the first case then sued for indemnification Atlantic, here, was a volunteer. In addition, Atlantic as is shown by its settlement with the plaintiff, believed that there was a possibility that the jury would find that they had been negligent also, and that the City had not been guilty of recklessness. In the face of the possibility of greater liability as against the possibility of no liability they agreed to a fixed payment. Such is the basis of most, if not all, settlements, and where there are multiple parties each tries to time his offer to get the best terms for his party. Viewed in that light, Atlantic's claim is that the City, by not settling what it must have known from the discovery to have been a legitimate claim, required Atlantic to go to the expense of this extended litigation not to pay the amount of the settlement. Nevertheless, Atlantic urges that assessing the City in this case for the amount of their settlement plus their costs of litigation will encourage settlements and discourage unreasonable refusal to settle where there are multiple defendants.[32] However, such a rule would generate additional litigation. In every case in which after one co-defendant settles and is found not reckless the non-settling co-defendant is found reckless and is called on to indemnify the other, the non-settling co-defendant would seek to litigate the reasonableness of his refusal to settle. For the reasons thus stated, Atlantic's motion for judgment on its cross claim against the City, and all of the City's motions for directed verdict and to set aside the verdict have been denied. 685 APPENDIX INTERROGATORIES TO BE SUBMITTED TO THE JURY PART I. NEGLIGENCE AND PROXIMATE CAUSE 1(A) WAS THE CITY OF PHILADELPHIA NEGLIGENT YES X IN RESPECT TO THE DESIGN OF THE SEWER? NO________ INSTRUCTIONS: If you have answered 1(A) "Yes", answer 1(B); If you have answered 1(A) "NO", DO NOT answer 1(B). 1(B) WAS SUCH NEGLIGENCE A PROXIMATE YES X CAUSE OF THE ACCIDENT? NO_______ 2(A) WAS THE CITY NEGLIGENT IN RESPECT TO YES X THE ACCUMULATION OF GASEOUS VAPORS? NO________ INSTRUCTIONS: If you have answered 2(A) "Yes", answer 2(B); If you have answered 2(A) "NO", DO NOT answer 2(B). 2(B) WAS SUCH NEGLIGENCE A PROXIMATE YES X CAUSE OF THE ACCIDENT? NO________ 3(A) WAS THE DRISCOLL CONSTRUCTION COMPANY YES X NEGLIGENT? NO________ INSTRUCTIONS: If you have answered 3(A) "Yes", answer 3(B); If you have answered 3(A) "NO", DO NOT answer 4(B). 3(B) WAS SUCH NEGLIGENCE A PROXIMATE YES X CAUSE OF THE ACCIDENT? NO________ 4(A) WAS ATLANTIC REFINING COMPANY NEGLIGENT?YES_______ NO X INSTRUCTIONS: If you have answered 4(A) "Yes", answer 4(B); If you have answered 4(A) "NO, DO NOT answer 4(B). 4(B) WAS SUCH NEGLIGENCE A PROXIMATE YES________ CAUSE OF THE ACCIDENT? NO_________ 686 II. SUPERSEDING CAUSE RE NEGLIGENCE INSTRUCTIONS: If you have answered questions 1(A) "Yes" and 1(B) "Yes", and 3(A) "Yes" and 3(B) "Yes", answer this question No. 5. If you have answered any one or more of them "NO", DO NOT answer this question No. 5. 5. WAS THE NEGLIGENCE OF DRISCOLL CONSTRUCTION COMPANY, INC., WHICH YOU YES________ HAVE FOUND IN ANSWERING QUESTION 3(A) "YES", A SUPERSEDING CAUSE OF THE ACCIDENT THAT WOULD RELIEVE THE NO X CITY OF LIABILITY FOR ANY NEGLIGENCE WITH RESPECT TO DESIGNING THE SEWER? INSTRUCTIONS: If you have answered questions 1(A) "Yes" and 1(B) "YES", and 4(A) "Yes" and 4(B) "Yes", answer this question No. 6. If you have answered any one or more of them "NO", DO NOT answer this question No. 6. 6. WAS THE NEGLIGENCE OF ATLANTIC REFINING COMPANY, WHICH YOU HAVE YES_________ FOUND IN ANSWERING QUESTION 4(A) "YES", A SUPERSEDING CAUSE OF THE ACCIDENT NO__________ THAT WOULD RELIEVE THE CITY OF LIABILITY FOR ANY NEGLIGENCE WITH RESPECT TO DESIGNING THE SEWER? INSTRUCTIONS: If you have answered questions 2(A) "Yes" and 2(B) "Yes" and 3(A) "Yes" and 3(B) "Yes", then answer this question No. 7. If you have answered any one or more of them "NO", DO NOT answer this question No. 7. 7. WAS THE NEGLIGENCE OF DRISCOLL CONSTRUCTION COMPANY, WHICH YOU HAVE YES________ FOUND IN ANSWERING QUESTION 3(A) "YES", A SUPERSEDING CAUSE OF THE ACCIDENT NO X THAT WOULD RELIEVE THE CITY OF LIABILITY FOR ANY NEGLIGENCE WITH RESPECT TO THE ACCUMULATION OF GASEOUS VAPORS? 687 INSTRUCTIONS: If you have answered questions 2(A) "Yes" and 2(B) "Yes", and 4(A) "Yes" and 4(B) "Yes", then answer this question No. 8. If you have answered any one or more of them "NO", DO NOT answer this question No. 8. 8. WAS THE NEGLIGENCE OF THE ATLANTIC REFINING COMPANY, WHICH YOU HAVE YES________ FOUND IN ANSWERING QUESTION 4(A) "YES", A SUPERSEDING CAUSE OF THE ACCIDENT, NO_________ THAT WOULD RELIEVE THE CITY OF LIABILITY FOR ANY NEGLIGENCE WITH RESPECT TO THE ACCUMULATION OF GASEOUS VAPORS? INSTRUCTIONS: If you have answered questions 3(A) "Yes" and 3(B) "Yes", and 4(A) "Yes" and 4(B) "Yes", then answer this question No. 9. If you have answered any one or more of them "NO", DO NOT answer this question No. 9. 9. WAS THE NEGLIGENCE OF THE ATLANTIC REFINING COMPANY, WHICH YOU HAVE YES________ FOUND IN ANSWERING QUESTION 4(A) "YES", A SUPERSEDING CAUSE OF THE ACCIDENT NO_________ THAT WOULD RELIEVE THE DRISCOLL CONSTRUCTION COMPANY OF LIABILITY FOR ANY NEGLIGENCE? INSTRUCTIONS: If you have answered questions 4(A) "Yes" and 4(B) "Yes" and 1(A) "Yes" and 1(B) "Yes", answer this question No. 10. If you have answered any one or more of them "NO", DO NOT answer this question No. 10. 10. WAS THE NEGLIGENCE OF THE CITY OF PHILADELPHIA WHICH YOU HAVE FOUND IN ANSWERING YES________ QUESTION 1(A) "YES" A SUPERSEDING CAUSE THE ACCIDENT THAT WOULD RELIEVE NO_________ THE ATLANTIC REFINING COMPANY OF LIABILITY FOR ANY NEGLIGENCE? INSTRUCTIONS: If you have answered questions 4(A) "Yes" and 4(B) "Yes" and 2(A) "Yes" and 2(B) "Yes", then answer this question No. 11. If you have answered any one or more of them "NO", DO NOT answer this question No. 11. 11. WAS THE NEGLIGENCE OF THE CITY, WHICH YOU HAVE FOUND IN ANSWERING QUESTION YES________ 2(A) "YES" A SUPERSEDING CAUSE OF THE ACCIDENT WHICH WOULD RELIEVE THE ATLANTIC NO_________ REFINING COMPANY OF LIABILITY FOR ANY NEGLIGENCE? 688 INSTRUCTIONS: If you have answered questions 4(A) "Yes" and 4(B) "Yes" and 3(A) "Yes" and 3(B) "Yes", then answer this question No. 12. If you have answered any one or more of them "NO", DO NOT answer this question No. 12. 12. WAS THE NEGLIGENCE OF DRISCOLL CONSTRUCTION COMPANY, WHICH YOU HAVE YES________ FOUND IN ANSWERING QUESTION 3(A) "YES", A SUPERSEDING CAUSE OF THE ACCIDENT NO_________ WHICH WOULD RELIEVE THE ATLANTIC REFINING COMPANY OF LIABILITY FOR ANY NEGLIGENCE? PART III. CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK INSTRUCTIONS: Answer all questions from 13 to 18. 13. WAS PLAINTIFF-DECEDENT, JAMES C. HENNIGAN, YES_______ GUILTY OF CONTRIBUTORY NEGLIGENCE? NO X 14. WAS PLAINTIFF-DECEDENT, JOHN RIDDICK, YES________ GUILTY OF CONTRIBUTORY NEGLIGENCE? NO X 15. WAS PLAINTIFF-DECEDENT, ROBERT C. WILSON, YES________ GUILTY OF CONTRIBUTORY NEGLIGENCE? NO X 16. DID PLAINTIFF-DECEDENT, JAMES C. HENNIGAN, ASSUME THE RISK FOR THE TYPE OF YES________ ACCIDENT WHICH CAUSED HIS INJURY AND DEATH? NO X 17 DID PLAINTIFF-DECEDENT, ROBERT C. WILSON, ASSUME THE RISK FOR THE TYPE OF YES________ ACCIDENT WHICH CAUSED HIS INJURY AND DEATH? NO X 18. DID PLAINTIFF-DECEDENT, JOHN RIDDICK, ASSUME THE RISK FOR THE TYPE OF ACCIDENT YES________ WHICH CAUSED HIS INJURY AND DEATH? NO X 689 PART IV. RECKLESS DISREGARD OF THE SAFETY OF OTHERS 19(A) DO YOU FIND THAT IN THE DESIGN OF THE SEWER THE CITY'S CONDUCT WAS A RECKLESS YES________ DISREGARD OF THE SAFETY OF OTHERS? NO X INSTRUCTIONS: If you have answered 19(A) "Yes", answer 19(B); If you have answered 19 (A) "NO", DO NOT answer 19(B). 19(B) WAS SUCH CONDUCT ONE OF THE PROXIMATE YES________ CAUSES OF THE ACCIDENT? NO_________ 20(A) IN PERMITTING THE ACCUMULATION OF GASEOUS VAPORS, DO YOU FIND THAT THE YES X CONDUCT OF THE CITY WAS A RECKLESS DISREGARD OF THE SAFETY OF OTHERS? NO_________ INSTRUCTIONS: If you have answered 20(A) "Yes", answer 20(B); If you have answered 20 (A) "NO", DO NOT answer 20(B). 20(B) WAS SUCH CONDUCT ONE OF THE PROXIMATE YES X CAUSES OF THE ACCIDENT? NO_________ PART V. COMPENSATORY DAMAGES INSTRUCTIONS: If you have answered 1(A) and 1(B) "Yes", or 2(A) and 2(B) "Yes", or 3(A) and 3(B) "Yes", or 4(A) and 4(B) "Yes", in what amount do you assess compensatory damages? (A) HENNIGAN: SURVIVAL ACTION $101,150. WRONGFUL DEATH $ 11,270. (B) RIDDICK: SURVIVAL ACTION $129,520. WRONGFUL DEATH $ 8,385. (C) JOHNSON: (WILSON) SURVIVAL ACTION $130,730. WRONGFUL DEATH $ 8,245. PART VI. PUNITIVE DAMAGES INSTRUCTIONS: If you have answered 19(A) and 19(B) "Yes", and/or 20(A) and 20(B) "Yes", in what amount do you assess punitive damages? (A) HENNIGAN .....................$25,000. (B) RIDDICK ......................$25,000. (C) JOHNSON ......................$25,000. (WILSON) NOTES [1] See Appendix. [2] (Page citations are to the pages of the Guide.) Clause G-6 "The prime duty of an Inspector is to see to it that the work to which he is assigned is carried out in strict compliance with the Plans, the Proposal and all of the City Standard Specifications and Standards. This includes checking all of the materials used. The Inspector should understand the reasons for the various requirements of the Specifications and should consult his immediate superior if in doubt * * ." (p. 8). Clause G-8 "The Inspector is responsible for any failure on the part of the contractor to conduct the work in accordance with the Plans and Proposals, City Specifications and Standards. It is the duty of the Inspector to immediately call to the attention of the Contractor's representative any failure to comply with the requirements. If the Contractor refuses or fails to correct the work, the Inspector should stop this portion of the work and he should report the trouble promptly to his immediate superior." (p. 9). Clause G-9 "One of the important duties of every Inspector is to be constantly alert to protect the public and the employees of both the City and the Contractor against accidents * . "The Inspector * * should be particularly careful for the safety of all men in tunnels, * * * "* * * Safety * * * should be in mind every time the Inspector goes the rounds of his job." (p. 11). Clause G-12 "The Inspector assigned to a construction contract must have in his possession on the job, and be thoroughly familiar with, the City's Standard Contract Requirements, all of the Standard Specifications pertaining to his work, and the Plans and Proposal covering his assignment. On sewer contracts he must also have a copy of the Standard Details for Sewers * * . In these Standards will be found the answers to many of the problems with which the Inspector will be confronted. They should be studied frequently and thoroughly." (pp. 13-14). Clause E-36 " * * When the proposal calls for tunnel construction * * * it is of particular importance that the Inspector be familiar with all of the Special Provisions in the Proposal, as well as the Commonwealth of Pennsylvania's Regulations for Tunnel Construction and Work in Compressed Air, referred to in Clause E-32 of this pamphlet * * " (pp. 27-28. See also Clause E-32, p. 24.) " * * The Inspector should see to it that the Contractor uses every reasonable precaution to insure the safety of the workmen * * " (p. 28.) In addition to the above, Clause E-36 (p. 27) and Clause S-57 (pp. 47-48), for example, provide for situations where the Inspector believes that that actual work should be done in a manner differing from the strict language of the Plans and Specifications. [3] Restatement 2d, Torts §§ 413-416 (1965). [4] Certainly the "employer" referred to by Judge Kalodner is "the employer of an independent contractor" and he stood in the same relationship to the workman in that case as did the City to the decedents in the case at bar. [5] Page citations "(R )" are to the Common Pleas Court Record on Appeal to the Superior Court. [6] R. 350(a). [7] R. 358(a). [8] R. 360(a)-362(a). [9] Allocatur Denied, Feb. 13, 1967. [10] Jury's Answer to Interrogatory 20(a). [11] Exhibit P-30/DC-57. [12] Page citations are to the City's Standard Contract Requirements. [13] Special Specifications: p. 12 Working Shaft Locations; p. 12 Lines and Grades in Tunnel; p. 13 Steel Liner Plates and Ribs; p. 17 Placing Concrete and Grout; pp. 17-18 Vacuum Processing in Tunnel. [14] N.T., 2190, 94, 96. [15] N.T., 458-59, 461, 71, 73, 80, 81-85. [16] See Marrazzo v. Scranton Nehi Bottling Co., 422 Pa. 518, 223 A.2d 17 (1966). [17] Jury's answers to interrogatories 5 and 7. [18] The City bases its claim on the allegation that Atlantic is liable without proof of negligence because its conduct in operating the tank farm was an ultrahazardous activity and because the seepage of petroleum products into soil in which the sewer was being constructed constituted trespass and/or nuisance. It is further argued that this liability renders Atlantic a joint tort-feasor. For purposes of this discussion, I assume, without deciding, the correctness of all of these propositions. However, they are discussed individually, infra. [19] In a footnote, Mr. Justice Stern approved § 447 of Restatement of Torts and went on to say that the first actor could not reasonably foresee "an act of negligence committed by the second actor after acquiring knowledge of the danger," and that such a subsequent act of negligence would be "extraordinary" and not a "normal response." [20] There is no evidence of any leakage, spillage or seepage on Atlantic's property at any particular time; certainly not at any time after the commencement of this project. [21] Restatement 2d, Torts (1965), Scope Note to Chapter 7. [22] Even as to Section 165, Comment C limits liability to harm "connected with his interest of exclusive possession. These interests include those in bodily security and freedom from confinement, * * and the physical condition of the members of his family and the servants belonging to his household * * *" No evidence whatsoever was introduced from which it could be said that decedents were within any of the stated categories nor that the alleged trespass by Atlantic could reasonably have been expected to invade any such interest. Additionally, as the discussion below states, there is no evidence that this is an ultra-hazardous activity within the meaning of sections 519 and 520, Restatement, Torts, (1938). [23] Restatement, Torts, § 520: "An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage." [24] It should be noted that the jury's conclusion that the City's conduct amounted to a reckless disregard of the rights of others precludes, of itself, the granting of defendant's motions on the alleged ground of contributory negligence. See Kasanovich v. George, 348 Pa. 199, 134 A.2d 523 (1943); Parker v. Jones, 423 Pa. 15, 223 A.2d 229 (1966); Wilson v. American Chain and Cable Co., 364 F.2d 558, 562 (3rd Cir. 1966). [25] Jury's answer to interrogatory 20(a). [26] See Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965). [27] 20 Pa.Stat.Ann. § 320.601 (1949). [28] "A person whose negligent conduct combined with the reckless . . . conduct of another has resulted in injury for which both have become liable in fact to a third person is entitled to indemnity from the other for expeditures properly made in the discharge of such liability, if the other knew of the peril and could have averted the harm at a time when the negligent tortfeasor could not have done so." Restatement, Restitution, § 97 (1936). [29] Answer to Special Interrogatory 20(a). [30] See Orth v. Consumers Gas Co., 280 Pa. 118, 121, 124 A. 296 (1924). [31] Id. at 120, 124 A. 296. [32] Atlantic makes no suggestion as to whether or not the rule they espouse, insofar as it applies to the costs of litigation, should inure to the benefit of plaintiffs also.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509710/	465 A.2d 823 (1983) In re S.P., Jr. No. 82-898. District of Columbia Court of Appeals. Argued May 2, 1983. Decided August 15, 1983. 824 Thomas C. Devlin, Washington, D.C., appointed by this court, for appellant. Steven H. Leventhal, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for appellee. Before KERN and BELSON, Associate Judges, and GALLAGHER, Associate Judge, Retired. BELSON, Associate Judge: Appellant seeks a review of a judgment of conviction for carrying a deadly or dangerous weapon, nunchaku sticks, capable of being concealed on or about his person in violation of D.C.Code § 22-3204 (1981). Appellant contends that there was insufficient evidence to support his conviction. We affirm. I On May 7, 1982, Metropolitan Police Officer Steven Gilmore and a fellow officer were on patrol in an unmarked police cruiser. As they approached the intersection of 14th and W Streets, N.W., they saw a crowd gathering in the middle of the block. They observed appellant in the midst of the crowd, swinging and twirling around his body what the officers recognized as nunchaku sticks (nunchaku).[1] The two officers 825 lost sight of appellant briefly, but soon saw him walking north on 14th Street, holding the nunchaku in his right hand. The two officers drove up to appellant, identified themselves and exited the cruiser with their guns drawn, a precaution normally taken when approaching someone with nunchaku. Appellant dropped the nunchaku on the ground. Officer Gilmore asked appellant whether he was taking karate lessons.[2] Appellant answered that he was not. Gilmore then asked appellant whether he knew that carrying the nunchaku was against the law. Appellant responded that he thought it was against the law only "if he had them inside someplace, not outside." Officer Gilmore then arrested appellant. At trial, Officer Michael Vitug was qualified by the court as an expert in the martial arts and related weaponry. Vitug was highly trained and skilled in the martial arts, and had instructed on them. He testified that although the nunchaku was historically an agricultural tool, it is used now almost exclusively as a weapon in the martial arts. Vitug stated that the nunchaku is used by martial arts experts at sports events in individual demonstrations of dexterity and fitness, but is not used in combative sports because of its capacity to cause great injury or death. Vitug testified that the nunchaku derives its dangerous and potentially lethal qualities from its design and construction. He noted that the nunchaku can be handled with silence and great speed and that when swung, it becomes a potent offensive weapon. Vitug physically demonstrated how the nunchaku easily can be concealed in an individual's clothing and how it can be used by an expert in demonstrating his proficiency in martial arts weaponry. Officer Vitug identified the instrument appellant carried as a speedchaku, a variant of the nunchaku, and noted that it was available at many local stores. The speedchaku contains "swivels . . . [with] ballbearings" making it faster when swung. It is also heavier than the usual nunchaku. Vitug testified that the speedchaku is considerably more dangerous than the usual nunchaku. He stated that the only purpose for which a person would be carrying nunchaku on the street would be either for use as a weapon or for transporting it to and from martial arts classes. Appellant's counsel called one defense witness, appellant's mother. She testified that she had seen appellant and other neighborhood boys using the nunchaku during the previous summer as part of informal physical exercises conducted and supervised by a man she identified as "Doc." She noted that "Doc" showed appellant and other boys how to construct and exercise with the nunchaku, but that this "training" was not focused on the martial arts and was only one of a number of physical exercises which Doc conducted with the boys. Appellant's mother was unable to explain the reasons for or circumstances surrounding appellant's possession and use of the nunchaku at the time of his arrest. In finding appellant guilty of carrying a dangerous weapon, after a bench trial, the trial judge stated: Based on the evidence presented the Court finds . . . that your purpose in carrying the nunchakus was its use as a deadly or dangerous weapon. Not to say that you had the specific intent at the time to use the instruments unlawfully against another person but that a description of what you were doing and how you were demonstrating to the people in the crowd, how you twirled them, indicates to me that you knew the purpose of the nunchakus. And, the testimony of the expert witness has been that its use as a weapon is its purpose, and that you knew 826 that as inferred from the manner in which you were demonstrating to others their use. II Appellant contends that the evidence presented to the court was insufficient to support conviction for carrying a dangerous weapon in violation of D.C.Code § 22-3204 (1981). Appellant maintains that the government failed to adduce sufficient evidence either that appellant's purpose for carrying the nunchaku was its use as a dangerous weapon or that, under the circumstances, the nunchaku was in fact a dangerous weapon. Appellant asserts that the evidence simply showed that he was demonstrating his proficiency in exercising with the nunchaku, that such use of the nunchaku is identical to its permitted use in sport and the martial arts, and that his conduct did not demonstrate a purpose to use the nunchaku as a weapon against another person. We are not to set aside the trial court's judgment, except for errors of law, unless we find that it was plainly wrong or unsupported by the evidence. See D.C.Code § 17-305(a) (1981). In assessing appellant's insufficiency claim, we must review the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences. See In re Q.L.J., 458 A.2d 30, 32 (D.C.1982) (per curiam); Blackledge v. United States, 447 A.2d 46, 49 (D.C.1982). The government is not required to negate every possible suggestion of innocence, and the evidence need only be such that reasonable persons could find guilt beyond a reasonable doubt. In re Q.L.J., supra; Blackledge, supra. Based upon our review of the record, we are satisfied that there was sufficient evidence to support the court's judgment of conviction of appellant. Section 22-3204 of the D.C.Code provides in relevant part: [N]o person shall within the District of Columbia carry either openly or concealed on or about his person . . . a pistol, without a license therefore. . ., or any deadly or dangerous weapon capable of being so concealed. . . . In order to show a violation of § 22-3204, the government must prove beyond a reasonable doubt that the defendant carried either openly or in a concealed manner any deadly or dangerous weapon, that he had the intent to do the acts constituting the carrying of such dangerous weapon, and that the defendant's purpose in carrying the instrument was its use as a dangerous weapon. See Criminal Jury Instructions for the District of Columbia, No. 4.81 (3d ed. 1978); see also Nelson v. United States, 280 A.2d 531, 533 (D.C.1971) (per curiam); Scott v. United States, 243 A.2d 54, 56 (D.C.1968). The government is not required to show a defendant's specific intent to use the instrument unlawfully. Leftwitch v. United States, 251 A.2d 646, 649 (D.C.1969); see also Criminal Jury Instructions, supra. There was no real dispute as to any issue other than whether appellant's purpose in carrying the nunchaku was its use as a dangerous weapon. In determining whether one's purpose in carrying an object was its use as a deadly or dangerous weapon, the factfinder must consider the circumstances surrounding its possession and use. See Criminal Jury Instructions, supra; see also Clarke v. United States, 256 A.2d 782, 786 (D.C.1969); Scott, supra, 243 A.2d at 56. Such surrounding circumstances include, inter alia, the design or construction of the instrument, see Scott, supra, 243 A.2d at 56; the conduct of the defendant prior to his arrest, see Gilmore v. United States, 271 A.2d 783, 784 (D.C.1970) (per curiam); any physical alteration of the instrument, and the time and place the defendant was found in possession, see Scott, supra, 243 A.2d at 56. In the absence of any explanation from the defendant, the conceivable legitimate reasons for carrying the instrument in the location of his arrest are a proper subject of inquiry. See Clarke, supra, 256 A.2d at 786. 827 It was undisputed at trial that appellant both intended to and did carry and twirl around his body the nunchaku in the midst of a crowd of onlookers. Officer Vitug's expert testimony established that the particular type of nunchaku found in appellant's possession, the speedchaku, is heavier, more flexible, more difficult to control, and potentially more lethal even in expert hands than an ordinary nunchaku. Furthermore, appellant's mother's testimony established that while appellant had had sporadic informal training in the use of the nunchaku generally as part of a more extensive exercise routine, he had not engaged in any such training for several months before being arrested. Finally, without suggesting that appellant bore any burden of proof in this regard, we note that his failure to testify left the court without his explanation as to any reasons he had for carrying the nunchaku at the time and in the area of his arrest. See Clarke, supra. While it is conceivable that one standing on a public sidewalk would engage in a demonstration of how the nunchaku is used in body building or in the martial arts, there is no record indication that such was appellant's purpose. Moreover, as illustrated by Officer Vitug's answers on cross-examination by appellant's counsel, such streetside demonstrations can well serve the impermissible purpose of intimidating others through exhibition of one's prowess with a lethal weapon.[3] As a result, based upon our review of the record we cannot say the trial court's finding was plainly wrong. Rather, we are satisfied that the court was apprised of circumstances "sufficiently probative" to allow it to conclude beyond a reasonable doubt that appellant was carrying a deadly or dangerous weapon in violation of § 22-3204. See Gilmore, supra, Clark, supra; Scott, supra.[4] Since we are making a ruling concerning a weapon which apparently has not previously been the subject of any published opinions in this jurisdiction, it is worth making a few further observations about the nunchaku. Like the courts of other jurisdictions, we are cognizant of the cultural and historical background of this Oriental agricultural implement-turned-weapon. We recognize that the nunchaku has socially acceptable uses within the context of martial arts and for the purpose of developing physical dexterity and coordination. Nevertheless, because of the inherent character of the nunchaku as an offensive weapon and its ready commercial availability, as established by the record in this case, we must be cognizant also of its potential for illicit use. In some jurisdictions legislation has been adopted which deals explicitly with the nunchaku.[5] It is for the legislature *828 to determine whether the existing statutory framework makes appropriate provision for the possession or use of nunchaku. Affirmed. NOTES [1] Nunchaku sticks are of Oriental origin and are commonly used in the martial arts. The device consists of two pieces of wood, metal, plastic, or like substance, each approximately one to two feet in length, one end of each of which is connected to one end of the other by a chain, rope, leather or other flexible material. [2] Gilmore testified that he asked appellant this question because he understood it was normal police practice to allow the carrying of nunchaku to and from karate lessons. [3] The following exchange took place during appellant's counsel's cross-examination of Officer Vitug: A. . . . . A lot of people don't know the formal name of the weapon but they know what it can do. You can almost be the bully of the block if you have a pair of nunchakus and you're trying to use it on the street and you're trying to impress somebody. There's a reason. Q. Or, Officer, you could be the show-off of the block, isn't that correct? A. But there's a reason for being a showoff. You want to say to people, "Hey, I have nunchakus. I use them. I know how to use them. Don't mess with me or I'll knock your block off." [4] We find inapposite the cases from other jurisdictions cited by appellant which have held that nunchaku were not per se dangerous weapons within the general sweep of particular statutes which specify weapons the mere possession of which is a felony or misdemeanor and include by general reference other similar weapons. See State v. Muliufi, 64 Haw. 485, 643 P.2d 546 (1982) (per curiam); Commonwealth v. Adams, 245 Pa.Super. 431, 369 A.2d 479 (1976); cf. State v. Tucker, 28 Or.App. 29, 558 P.2d 1244 (1977). As we have discussed, it is not simply possession of, but rather the use of an instrument and the circumstances surrounding its use which render it dangerous for purposes of § 22-3204. See Clarke, supra; Scott, supra; see also Criminal Jury Instructions, No. 4.81, supra. [5] In Maryland, for example, legislation has placed it in the same category as switchblade knives and metal knuckles, and no purpose to use it as a weapon need be shown in order to establish a violation. 3A Md.Ann.Code art. 27, § 36 (1982). Although under D.C.Code § 22-3214(b) certain weapons are similarly classified, the nunchaku is not so classified.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509713/	282 F. Supp. 369 (1968) Georgios KATOPODIS, Plaintiff, v. LIBERIAN S/T OLYMPIC SUN, etc., et al., Defendants. No. 847. United States District Court E. D. Virginia, Newport News Division. February 23, 1968. 370 Burt M. Morewitz, Newport News, Va., for plaintiff. Harry E. McCoy, Norfolk, Va., for defendants. MEMORANDUM KELLAM, District Judge. On May 10, 1966, Georgios Katopodis filed this seaman's action against defendants. Defendants, through counsel, accepted service of process. Various motions and answer were filed, along with motions for production of documents, interrogatories, motion for default judgment, notice of taking of discovery, etc. After hearings, a default was entered February 1, 1967, in favor of plaintiff on all causes of action with direction that the case proceed, as scheduled, as to damages only. Numerous requests for admission of facts and genuineness of documents were filed. In most instances they were not answered. The case was set for trial for July 21, 1967, but continued. Statements from plaintiff, executed in Greece, were filed, in the first of which he related how defendant had tried to make a settlement with him behind the back of his counsel, and had made numerous promises to him, which were not fulfilled. In later statements he announced his desire to revoke the power of attorney given his Virginia counsel and to dismiss this suit. A letter from the plaintiff was forwarded to Honorable Walter E. Hoffman, Chief Judge of this Court, wherein plaintiff stated he wished to revoke his power of attorney given to his Virginia counsel (and his counsel in Greece) and to have this suit dismissed. Upon hearing held August 29, 1967, on motion, Burt M. Morewitz, Virginia counsel for plaintiff, was ordered made a party plaintiff, so far as his interest may appear herein. The genuineness of plaintiff's signature to the above referred to documents is admitted. Depositions of plaintiff were taken on November 14, 1967, before the United States Vice Consul at Athens, Greece, and filed in this suit, wherein plaintiff stated he wished to revoke the power of attorney given to his Virginia and Athens counsel, and to dismiss the suit. At a hearing held February 6, 1968, at Newport News, Virginia, for the purpose of (a) determining whether the suit should proceed, and (b) if not, what sum should be allowed plaintiff's counsel for services herein, the following were offered in evidence and objected to: (1) Sworn statement of deposition of Dr. Anestis, marked "Exhibit A, 371 2/6/68." Objection is made to its admission because taken without notice to defendant. (2) Letter from Dr. Sydney Bassin to Mr. Morewitz, with copy of a letter from said doctor to Bozes attached marked "Exhibit B, 2/6/68", objected to as hearsay, etc. (3) Letter from Dr. DeLuccia to Mr. Morewitz dated April 12, 1968, marked "Exhibit C, 2/6/68", objected to as hearsay. (4) Statement from Seamen's Hospital dated March 20, 1967, marked "Exhibit D, 2/6/68", objected to as hearsay. (5) X-rays from Athens, Greece, marked "Exhibit E, 2/6/68." Each of the above exhibits deals with the alleged physical condition of plaintiff. Since we are not here concerned with the physical condition of plaintiff, it seems of little moment whether they are admitted or not. Mr. Morewitz suggested that the plaintiff may not be mentally capable of revoking the power of attorney or directing that the suit be dismissed. However, there is nothing in the record before the Court to establish that he is not mentally capable. The deposition of November 14, 1967, does not so indicate, nor do any of the medical records mentioned above. Hence, the Court will follow the presumption of law that he is mentally capable and the burden is on one alleging the contrary to prove it.[1] It appears from the proceedings, written memoranda filed, and statements in the record, that 1. A representative of the defendant in the United States made an offer of settlement of $8200.00 plus the hospital bill of approximately $700.00. This offer of settlement was submitted to each party, and was accepted by plaintiff. (See depositions of 11/17/67 and attachments). 2. That after the above recommendations defendant, knowing of the proposed terms, contacted plaintiff and agreed upon a settlement of his claim directly with him. Local counsel were not parties to or in any way involved in this conduct. (See deposition of 11/17/67, and attachments). 3. That Mr. Morewitz held a contract with, and power of attorney from, plaintiff, authorizing and directing him to handle this litigation for plaintiff and agreeing to pay him a fee of fifty per cent of any sum recovered. Notice of this lien was given in writing to defendant prior to time of instituting this suit. A plaintiff has the right to make settlement of his claim directly with defendant and without the knowledge or consent of his employed counsel.[2] But, by so doing, he cannot deprive the attorney of his fee.[3] He cannot, however, dismiss the action, where defendant has appeared, except by order of the Court and upon such terms and conditions as the Court deems proper. Rule 41(a) (2) of Federal Rules of Civil Procedure. Under the statute in Virginia, an attorney has a lien upon the cause of action as security for his fee, and where notice has been given to the opposing party (defendant) any settlement shall *372 be void against the lien so created. The lien also includes expenses.[4] In cases where plaintiff and defendant, without the knowledge or consent of plaintiff's attorney, have settled their dispute and the attorney holds a contract for a contingent percentage of any recovery, the authorities differ as to whether the recovery is the percentage called for by the contract, or on a quantum meruit.[5] It is of no particular moment here, for the use of either method would produce about the same result. It appears that under the plan submitted through plaintiff's counsel, recommended by defendant's local counsel, plaintiff would have received about $3,600.00 net to him. It has been suggested that in the settlement which defendant negotiated directly with plaintiff, he has been promised about $3,300.00 net, plus some special advantage. There is no question that defendant in negotiating the settlement with plaintiff "behind the back" of plaintiff's counsel, and its own local counsel, knew of the plaintiff's counsel's lien, the recommended settlement, the approximate net amount which plaintiff would have received, and all of the facts and circumstances, and that it acted in bad faith. After the action was commenced, the attorney was a party in interest to the litigation. The defendant settled the litigation with plaintiff at his peril. Where he does so, as here, in bad faith or to prevent the attorney from collecting his fee, defendant is liable therefor.[6] Plaintiff's counsel has been made a party to these proceedings, and may prosecute the same to recover his fee.[7] In view of the services performed and the contract, Mr. Morewitz is entitled to recover of defendant as fee for his services $4,100.00, plus his out-of-pocket expenses as shown by statement filed herein of $437.65. The actions and conduct of defendant are reprehensible. Proper action must be taken to prevent this from happening in the future. If a defendant (who finds himself facing a trial where the only issue is the amount of damages) is permitted to sneak behind the back of plaintiff's counsel and by some agreement with plaintiff destroy the plaintiff's claim and his attorney's lien for services, we will destroy the usefulness of the courts and confidence of the public therein. Every effort should be made to prevent this. While awards in such cases should not necessarily be made as punishment to a defendant, it should be firm enough to let such a party know the courts will not approve or permit it. It should be noted in passing that the Court has just been put on notice of identical action in what appears to be the sister ship of the defendant's OLYMPIC SUN.[8] Nor is this the first time this type of conduct has been performed by this defendant. It is but a pattern of defendant's conduct. NOTES [1] Jones v. Commonwealth, 202 Va. 236, 117 S.E.2d 67; Christian v. Commonwealth, 202 Va. 311, 117 S.E.2d 72; Noble v. Sigler, 351 F.2d 673 (8th Cir. 1965). [2] Monsanto, etc. v. Grandbush, 162 F. Supp. 797, 802 (D.C.Ark.1958); Ingold v. Ingold, 30 F. Supp. 347, 348 (D.C.N.Y. 1939); 7 Am.Jur.2d § 223 p. 177. [3] In re Hoy's Claim, 93 F. Supp. 265, 266 (D.C.Mass.1950); Monsanto Chemical Co. v. Grandbush, 162 F. Supp. 797, 802 (D.C.Ark.1958); Kotsifakis v. A Lusi, etc., 138 F. Supp. 945, 946 (D.C.Va.1955); 7 Am.Jur.2d § 223, p. 177. [4] Va.Code 54-70; Monsanto, etc. v. Grandbush, 162 F. Supp. 797, 803 (D.C.Ark. 1958). [5] Spahn v. United States, 92 F. Supp. 992, 993 (Va.D.C.1950); United States v. Hudson, 39 F. Supp. 797, 802 (D.C.Mont. 1941); Dombey, etc. v. Detroit, etc., 351 F.2d 121, 127 (6th Cir. 1965); 7 Am. Jur.2d § 256, p. 190, Anno. 136 A.L.R. 241. [6] Lehigh & N. E. R. Co. v. Finnerty, 61 F.2d 289 (3rd Cir. 1932) and cases there cited; 7 Am.Jur. § 305. [7] In re Hoy's Claim, 93 F. Supp. 265, 267 (D.C.Mass.1950); Monsanto, etc. v. Grandbush, 162 F. Supp. 797, 802 (D.C.Ark. 1958); Ingold v. Ingold, 30 F. Supp. 347, 348 (D.C.N.Y.1939); United States v. Hudson, 39 F. Supp. 797, 800, 801 (D.C. Mont.1941); Anno. 67 A.L.R. 462, 146 A.L.R. 71; Woodbury v. Andrew Jergens Co., 69 F.2d 49, 50 (2d Cir. 1934); Burkhart v. Scott, 69 W.Va. 694, 72 S.E. 784, 786 and cases cited. [8] Mauroulakis v. Olympic Gulf, Civil Action No. 1326.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509718/	633 S.W.2d 851 (1982) James Calvin ANDERSON, Appellant, v. The STATE of Texas, Appellee. No. 60913. Court of Criminal Appeals of Texas, Panel No. 2. March 3, 1982. 853 Gerald Brown, Temple, for appellant. Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State. Before ODOM, CLINTON and TEAGUE, JJ. OPINION TEAGUE, Judge. This is an appeal from a conviction for committing the offense of rape, see V.T. C.A. Penal Code, Sec. 21.02. After a plea of not guilty, a jury found appellant guilty and assessed his punishment, enhanced by one prior felony conviction, V.T.C.A. Penal Code, Sec. 12.42(b), at life imprisonment. Appellant's first ground of error complains of the trial court's refusal to disqualify venireperson Gooch for cause after she admitted knowing the victim of the rape, and several of the State's witnesses.[1] Art. 35.16(a)(8), V.A.C.C.P., requires that a prospective juror be dismissed for cause when challenged if "he has a bias or prejudice in favor of or against the defendant." This "bias or prejudice" is separate from and in addition to that relating to any applicable law or possible punishment, or from kinship to the defendant, the prosecutor, or any person injured during commission of the offense, all of which is governed by Subsections (b) and (c) of Art. 35.16, supra. The Texas Supreme Court has defined "bias" as "an inclination toward one side of an issue rather than to the other ... [which] leads to the natural inference that [a juror] will not or did not act with impartiality," and defined "prejudice" simply as "prejudgment." Compton v. Henrie, 364 S.W.2d 179 (Tex.1963). We hereby adopt those definitions. The "bias" complained of here consisted of Gooch's tangential acquaintance with the victim and several of the State's witnesses. Although such knowledge may be the source of an existing bias, "the mere fact that a juror knows, or is a neighbor, or an intimate acquaintance of, and on friendly relations with, one of the parties to a suit, is not sufficient basis for disqualification," Allbright v. Smith, 5 S.W.2d 970 (Tex.Comm.App.1928). When bias or prejudice are not established as a matter of law, the trial court has discretion to determine whether bias or prejudice actually exists to such a degree that the prospective juror is 854 disqualified and should be excused from jury service. See Swap Shop v. Fortune, 365 S.W.2d 151 (Tex.1963). Bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant, Brandon v. State, 599 S.W.2d 567 (Tex.Cr.App.1979); Williams v. State, 565 S.W.2d 63 (Tex.Cr. App.1978); McBride v. State, 110 Tex. Crim. 308, 7 S.W.2d 1091 (1928); Brown v. State, 289 S.W. 392 (Tex.Cr.App.1926); Hooper v. State, 100 Tex. Crim. 147, 272 S.W. 493 (1925); admits prejudice against persons who use intoxicating beverages, when the defendant is charged with an offense involving liquor, Gonzalez v. State, 169 Tex. Cr.R. 49, 331 S.W.2d 748 (1960); Hooper v. State, supra; see also Flowers v. Flowers, 397 S.W.2d 121 (Tex.Civ.App. Amarillo 1965); or when he admits or demonstrates prejudice toward a racial or ethnic class of which the defendant is a member. See Evans v. Galbraith-Foxworth Lumber Co., 31 S.W.2d 496 (Tex.Civ.App. Amarillo (1929); Texas & Pacific Ry. Co. v. Phelps, 289 S.W. 708 (Tex.Civ.App. Texarkana 1926); Makey v. Dryden, 128 S.W. 633 (Tex. Civ.App. Houston 1910); cf. Smith v. Travelers Insurance Co., 205 S.W.2d 432 (Tex.Civ.App. Texarkana 1947). Bias as a matter of law is also shown when the prospective juror admits resentment towards a defendant because of some prior contact with the defendant, see Williams v. State, supra, or when the juror is related to the State's primary witness, Burge v. State, 117 Tex. Crim. 141, 35 S.W.2d 735 (1931). When a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside and provide a fair trial, Williams v. State, supra; Hooper v. State, supra. However, it is left to the discretion of the trial court to first determine whether or not bias exists. Where the juror states he believes that he can set aside any influences he may have, and the trial court overrules a challenge for cause, its decision will be reviewed in light of all of the answers the prospective juror gives. See Swap Shop v. Fortune, supra; Wade v. Austin, 524 S.W.2d 79 (Tex.Civ.App. Texarkana 1975); Brown v. Herring, 466 S.W.2d 664 (Tex.Civ.App. Eastland 1971). Such was the situation in this case. Venireperson Gooch first stated, in response to the prosecutor's questions, that she could be fair and render a fair verdict even though she knew the prosecutrix and several of the State's witnesses. On further examination by appellant's counsel she admitted that, "knowing them I would be more biased" and that "it would be difficult" to treat them as she would a stranger. However, she also admitted to the prosecutor that she didn't know what the testimony was going to be, that she had no reason to believe any of the witnesses she knew would be untruthful, that just because those persons' names appeared as potential witnesses against the appellant would not prevent her from being fair and impartial, that she would listen to all the testimony in the case and then render a fair verdict based on the evidence, and that she would render her verdict based on what she thought the truth was, and not merely because she thought the State's witnesses were more believable because she knew them. In response to questioning by the trial court she stated that she thought she could set aside her knowledge of the prosecutrix and the State's witnesses and determine the case strictly from the evidence she heard and from the charge the court would give her. These statements sufficiently support the trial court's implicit finding that Gooch was not disqualified for bias or prejudice, and denying the challenge for cause was not error. Ground of error number one is overruled. The second ground of error contends that the trial court erred in allowing a witness, Mrs. Henry, to state that the prosecutrix never changed her story. 855 The prosecutrix, an 18 year old, mildly retarded female, testified that appellant had forced her to submit to sexual intercourse in a science classroom at Temple High School. Appellant, who worked with the prosecutrix as a fellow custodian at Temple High School, testified that she had consented to the intercourse. Several other witnesses testified that shortly after the intercourse the prosecutrix appeared disheveled, upset, and angry at appellant, to the extent that she pulled a pocket-knife on appellant. Mrs. Henry, a secretary in the vice-principal's office, testified that the prosecutrix told her a short time after the incident that appellant had forced her to have sexual intercourse with him and had related to her some of the details of the occurrence. Another secretary, Mrs. Jones, was present during the prosecutrix' discussions with Mrs. Henry, and Mrs. Jones related the same facts as did Mrs. Henry. The doctor who examined the prosecutrix also testified that the prosecutrix had indicated to him that same afternoon that the sexual intercourse was not consensual. Although several defense witnesses rebutted certain aspects of the prosecutrix' story concerning events preceeding the intercourse, the prosecutrix was never actually impeached as to her testimony regarding the forcible act of sexual intercourse she had with appellant; therefore, it was improper for the prosecutor to bolster her testimony with Mrs. Henry's testimony. See Ramos v. State, 141 Tex. Crim. 126, 147 S.W.2d 809 (1941); Hoyt v. State, 88 Tex. Cr.R. 612, 228 S.W. 936 (1921). However, Mrs. Henry's testimony did not indicate that she had talked with the prosecutrix about the offense on any other occasion, and two other witnesses stated without objection that the prosecutrix had told them the same story, so the error in allowing Mrs. Henry to testify that the prosecutrix never changed her story was harmless error. Ground of error number two is overruled. The appellant complains in his third ground of error of the argument the prosecuting attorney made at the punishment stage of the trial. Two peace officers had testified that appellant's general reputation for the character traits of peaceful and law-abiding was bad. In addition to arguing that this was what the peace officers knew about appellant, the prosecuting attorney additionally argued: "[that this is] all the law permits them to say." Appellant claims that this implied to the jury that there were facts which the peace officers knew about appellant which they could not reveal to the jury because of some proscription in our law. We agree with appellant that this argument was improper. This type of argument was clearly improper because it invited the jury to speculate that there was other evidence detrimental to the appellant which the jury had not heard. If appellant's objection to it had been overruled, a reversal would be required. Berryhill v. State, 501 S.W.2d 86 (1973); Stearns v. State, 487 S.W.2d 734 (Tex.Cr.App.1972). Appellant's objection, however, was sustained. The general rule is that an instruction to disregard this type argument will usually cure any error, see Little v. State, 567 S.W.2d 502 (Tex.Cr.App. 1978); Lafoon v. State, 543 S.W.2d 617 (Tex.Cr.App.1976); Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974); Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974); Morgan v. State, 502 S.W.2d 695 (Tex.Cr. App.1973); Linzy v. State, 478 S.W.2d 950 (Tex.Cr.App.1972), unless the prosecutor subsequently attempts to circumvent the court's ruling that such argument was improper. Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1972). In this cause the trial court instructed the jury, in response to appellant's objection, that they were "not to consider anything other than the testimony given by the witness and not to make any inference from counsel's argument." No further reference was made by the prosecuting attorney to matters outside the record, so we find the improper argument was cured by the court's instruction. Ground of error number three is overruled. 856 We have also reviewed the grounds of error alleged in appellant's pro se briefs, and have found them to be without merit.[2] The judgment in this cause is affirmed. NOTES [1] Mrs. Gooch was a school teacher at Temple High School where the rape occurred. Although she knew the prosecutrix and several of the State's witnesses she did not know appellant. Other than the parties establishing that Mrs. Gooch knew the prosecutrix and several of the State's witnesses, there was no real in-depth questioning of what Mrs. Gooch's relationship to the prosecutrix and the State's witnesses might have been. In Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978), this Court held that a tangential acquaintance with the victim or the defendant does not justify a trial court sustaining a challenge for cause, and gave in the opinion three examples of relationships which are not sufficient in themselves to sustain a challenge for cause: (1) someone who merely knew the victim when he saw him; (2) someone who worked in the same building with the father of the defense attorney; and (3) someone whose spouse had sold insurance to the family of the victim. Compare, Noah v. State, 495 S.W.2d 260 (Tex.Cr.App.1973) (Venireman testified he had known the defendant "since school days," and because of this he preferred not to serve. However, he also testified that "it would be hard" for him "to be fair and impartial in a case like this," and when asked by defense counsel "... you can consider the facts, at this point," he answered, "No, sir." Held, the venireman was properly excused). There is no showing that Mrs. Gooch ever spoke either to the prosecutrix or the witnesses, or vice versa, about the facts of the case, nor was it established that Mrs. Gooch had ever formed in the past any kind of opinion against the appellant. [2] Appellant was indicted as an habitual offender. See V.T.C.A. Penal Code, Sec. 12.42(d). When arraigned, he plead "true" to one of the alleged prior convictions, but plead "untrue" to the other alleged prior conviction. A "pen" packet was introduced, and it contained evidence of both alleged prior convictions. However, the trial court submitted the case to the jury as though only one prior conviction was alleged for enhancement of punishment purposes. The jury responded with a finding that appellant had been previously convicted only once, and assessed his punishment as a second offender. See V.T.C.A. Penal Code, Sec. 12.42(b). If we understand appellant's pro se contentions, they all relate to the paragraph of the indictment which alleged a previous felony conviction for the offense of forgery by passing, to which paragraph appellant plead "untrue." Appellant's pro se contentions may have been meritorious, had the record on appeal supported his contentions. See Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979). However, other than a judgment and sentence which are contained in the "pen packet," and which were introduced in evidence, no other documents pertaining to the forgery conviction, such as the indictment, are in the record on appeal. We are therefore unable to evaluate whether appellant's contentions have merit, and for that reason we decline to review his pro se contentions that his prior conviction for forgery by passing was void.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509739/	633 S.W.2d 98 (1982) Roy T. BOYER, Plaintiff-Appellant, v. CARONDELET SAVINGS & LOAN ASSOCIATION and John L. Davidson and Marvin Klamen, Defendants-Respondents. No. 43888. Missouri Court of Appeals, Eastern District, Division One. March 2, 1982. Motion for Rehearing and/or Transfer Denied April 16, 1982. Application to Transfer Denied June 14, 1982. 99 David M. Duree, St. Louis, for plaintiff-appellant. Michael M. Flavin, St. Louis, for Davidson and Klamen. John L. Davidson, Clayton, for Carondelet. 100 CRANDALL, Judge. Appellant appeals from the judgment of the trial court dismissing his petition with prejudice. We affirm, as modified. Carondelet Savings & Loan Association, by and through its attorney Marvin Klamen, filed suit against appellant and others. The original suit was in two counts seeking money damages for breach of alleged loan guaranties. Carondelet later amended its petition to add Counts III, IV and V.[1] Thereafter Carondelet dismissed Counts I and II of its petition without prejudice, leaving Counts III, IV and V pending. Appellant then filed this lawsuit alleging in Count I malicious commencement of a civil suit against plaintiff by respondents Carondelet and Klamen and in Count II alleging a malicious continuation of prosecution by all of the respondents. On motion by respondents, the trial court entered its judgment dismissing both counts of appellant's petition with prejudice.[2] For appellant to prevail on his suit for malicious prosecution, he must establish, among other elements, that the prior litigation terminated in his favor. Stafford v. Muster, 582 S.W.2d 670, 675 (Mo.banc 1979). Termination in favor of the party bringing the action for malicious prosecution means the final disposition of the cause forming the basis of the action in favor of the party against whom the original action was brought and adversely to the party bringing the original action. Stix & Co. v. First Missouri Bank & Trust Co., 564 S.W.2d 67, 70 (Mo.App.1978). Appellant argues that the five-count petition filed by Carondelet alleges separate claims and therefore dismissal of Counts I and II would be a termination of prior litigation in his favor. We decline to draw that distinction. The petition pled alternative theories of recovery on two separate claims. Thus the prior litigation has not terminated in appellant's favor and therefore his suit for malicious prosecution is premature. Appellant next attempts to "bootstrap" his petition by arguing that if he does not state a cause of action for malicious prosecution, then he states a cause of action for prima facie tort or abuse of process. Appellant's petition is an attempt to set out a cause of action for malicious prosecution. It was not intended to, and does not, set out a cause of action for prima facie tort or abuse of process. The elements of the prima facie tort doctrine are: (1) intentional lawful act by the defendant; (2) an intent to cause injury to the plaintiff; (3) injury to the plaintiff; and (4) an absence of any justification or an insufficient justification for defendant's act. Porter v. Crawford & Co., 611 S.W.2d 265, 268 (Mo.App.1980). We have carefully reviewed appellant's petition and find that it fails to plead ultimate facts showing an actual intent to cause injury to himself by respondents. Appellant next argues that he states a cause of action for abuse of process in *101 Count II of his petition. A pleading alleging abuse of process must set forth ultimate facts establishing the following elements: (1) the present defendant made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) the defendant had an improper purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted. Stafford v. Muster, supra at 678. The phrase "use of process" as used in this context refers to some willful definite act not authorized by the process or aimed at an objective not legitimate in the proper employment of such process. Id. Appellant's petition does not allege an illegal, improper or perverted use of process. The "use of process" was to collect money damages, an act within the purview of the process. Count II of plaintiff's petition deals with the alleged malicious continuation of a lawsuit by respondents, not abuse of process. Since it is the ruling of this court that appellant failed to show a successful termination of the original proceeding in his favor and thus was premature in his filing of a malicious prosecution suit, we disagree with the trial court's dismissal of appellant's petition with prejudice. It is therefore the judgment of this court that appellant's petition is dismissed without prejudice. The judgment of the trial court is affirmed as modified. STEWART, P. J., and STEPHAN, J., concur. NOTES [1] Carondelet's second amended petition is summarized as follows: Count I sought money damages based on the breach of a loan guaranty number 9115 executed by appellant and others on September 25, 1974. Count II sought money damages based on the breach of a loan guaranty number 9116 executed by appellant and others on September 25, 1974. Count III incorporated by reference Counts I and II but prefaced liability on a loan guaranty executed by appellant and others on April 15, 1974. Count IV was not directed against appellant. Count V alleged that appellant authorized an agent to execute the loan guaranties of September 25, 1974, or that appellant subsequently ratified such execution. [2] The trial court sustained respondents' motions to dismiss but did not specifically rule on the motions for summary judgment that were pending at the time. We are treating the motions to dismiss as motions for summary judgment. Rule 55.27(a). In view of the fact that matters outside the pleadings were presented and not excluded by the trial court at the hearing on the motions to dismiss appellant's petition and all parties had ample opportunity to present materials on the issue of summary judgment, the trial court in effect entered summary judgment when it ruled on respondents' motions to dismiss. Brown v. Crow, 564 S.W.2d 599, 600 (Mo.App. 1978); Kelley v. Schnebelen, 545 S.W.2d 332, 334 (Mo. App.1976).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509515/	113 F.2d 956 (1940) WALGREEN DRUG STORES, Inc., v. OBEAR-NESTER GLASS CO. CORNING GLASS WORKS v. SAME. Nos. 11654, 11655. Circuit Court of Appeals, Eighth Circuit. July 19, 1940. As Modified on Denial of Rehearing August 29, 1940. 957 Wayne Ely, of St. Louis, Mo., and E. S. Rogers, of Chicago, Ill. (V. M. Dorsey, of Washington, D. C., and John H. Bruninga and John H. Sutherland, both of St. Louis, Mo., on the brief), for appellants. Lawrence C. Kingsland, of St. Louis, Mo. (Estill E. Ezell and Edmund C. Rogers, both of St. Louis, Mo., on the brief), for appellee. Before GARDNER and SANBORN, Circuit Judges, and COLLET, District Judge. GARDNER, Circuit Judge. The appellee, Obear-Nester Glass Company, brought suit against appellant Walgreen Drug Stores, Inc., charging the infringement of its trade-mark No. 231,759, registered August 23, 1937. Appellant Corning Glass Works was permitted to intervene, and it took over the defense of the suit. The real controversy is between Obear-Nester Glass Company and Corning Glass Works. For convenience we shall refer to the Obear-Nester Glass Company as plaintiff and the Corning Glass Works as defendant. Plaintiff alleged in its complaint that it had sold glassware, and particularly glass bottles, since a time prior to January 2, 1896, at which time it adopted the trade-mark "Rex," and molded it into or affixed it to glass bottles; that it registered its trade-mark "Rex" October 23, 1900; that it re-registered it August 23, 1927, and that it continued to use the trade-mark on its goods, and that a good will developed 958 thereunder of great value, and that it does a large volume of business; that defendant Corning Glass Works has transported and sold in interstate commerce glassware, including bottles, bearing the trade-mark "Pyrex," which trade-mark is alleged to constitute an infringement of plaintiff's trade-mark. The Corning Glass Works, in its answer, denied infringement, alleging that it had adopted "Pyrex" as its trade-mark in 1915 and continuously thereafter used it to identify glassware made by it with special properties adapting such glassware for chemical, industrial and optical uses and purposes and where thermal endurance is of value; that it has used this trade-mark since 1922 on its nursing bottles made of heat-resisting glass; that it has extensively advertised its products bearing the trade-mark "Pyrex"; that its trade-mark is of great value as indicating the source or origin of the glass bearing this mark; that its wares bearing this mark are well known throughout the United States, and that Obear-Nester has acquiesced in its right to apply "Pyrex" to its glassware and that it is estopped by reasons of its knowledge and acquiescence in its use of this trade-mark on its products to now claim that defendant is not entitled so to do. The lower court made findings which in general sustained the allegations of plaintiff's bill of complaint. It found that plaintiff's trade-mark "Rex" was widely advertised and had become well known in the trade as identifying plaintiff's products long prior to the year 1915; that a substantial business was engaged in by plaintiff in glassware from 1917 to the date of the filing of the bill of complaint; that in 1915 Corning Glass Works adopted and began to use the word "Pyrex" for a line of glassware; to-wit, baking ware, and thereafter applied the mark "Pyrex" to laboratory ware; that still later, after making nursing bottles for a number of years, it applied the mark "Pyrex" to those bottles. The court made no definite finding as to whether Corning Glass Works did or did not have knowledge of the use of the trade-mark "Rex" at the time it adopted "Pyrex" as its trade-mark, but found that the Corning Glass Works denied such knowledge and had failed to establish that it used due care and caution to ascertain whether or not there had been a prior use of a confusingly similar mark, and that it admitted that it would have adopted "Pyrex" regardless of whether it had had knowledge of a prior use of the trade-mark "Rex." The court further found that on March 13, 1917, the Corning Glass Works registered "Pyrex" as its trade-mark for glass, and on October 14, 1924, registered it for nursing bottles; that in 1928, plaintiff first learned of the existing direct conflict between its and Corning's products, arising out of the use of both "Pyrex" and "Rex" on nursing bottles, and that plaintiff had notified Corning of the alleged infringement in 1930. The court also found that there was a manifest likelihood of confusion in the minds of purchasers between goods sold under the plaintiff's trade-mark "Rex" and the goods sold by Corning under the trade-mark "Pyrex," and that actual confusion had resulted; that plaintiff had not acquiesced in the use of "Pyrex" by defendant, and that defendant had sold in interstate commerce glassware bearing the mark "Pyrex," in infringement of plaintiff's trade-mark "Rex." From these facts, the court found infringement and entered decree reciting, among other things, that plaintiff was the owner of the trade-mark "Rex" applied to glassware, and particularly to bottles and the like, and that defendant had infringed upon plaintiff's rights by the use of "Pyrex" upon goods of the same descriptive properties as those upon which plaintiff had used and was using its trade-mark "Rex." The court perpetually enjoined defendant from the use of the trade-mark "Pyrex" upon glassware, "and from counterfeiting, copying or colorably imitating the trade-mark `Rex,' and affixing it to merchandise of the same descriptive properties as those upon which the trade-mark `Rex' is employed by plaintiff." The decree also provides that the defendant shall account for profits "derived through the infringing use of the trade-mark `Pyrex,'" and for damages because of the infringing use of the infringing trade-mark "Pyrex." The following facts are established either by admissions or by undisputed testimony, and although not embodied in the court's findings, we think them material to the issues in this suit. The plaintiff has never manufactured any glassware, other than bottles. For many years subsequent to January 2, 1896, it applied the trade-mark "Rex" only to prescription bottles sold to druggists for that specific use. For a short time prior to 959 1919, the mark "Rex" was applied to liquor bottles, but this use was discontinued in 1919 and has never been resumed. At the time plaintiff procured its certificate of registration for the trade-mark "Rex," October 23, 1900, it stated that, "The class of merchandise to which this trade-mark is appropriated is bottles, and the particular description of goods comprised in said class upon which the trade-mark is used is prescription bottles. It is also usually displayed on the boxes or packages wherein the bottles are packed for shipment by stamping, printing, or affixing it on the box or package." When it applied to re-register the trade-mark on April 25, 1927, it stated in its application as follows: "Be it known that Obear-Nester Glass Co., a corporation * , has adopted and used the trade-mark shown in the accompanying drawing, for prescription bottles made of glass, Class 33, Glassware." From the date of the first registration of its trade-mark until 1928, with the exception of the application to liquor bottles, plaintiff has never at any time applied the mark "Rex" to anything other than prescription bottles. The Corning Glass Works had, prior to 1915, perfected a manufacturing process by which it produced a special quality of glass which resists temperature changes and other shocks. The name "Pyrex" was applied to that glassware in 1915. The word has its origin in the Greek word "pyr", meaning fire, and the Latin word "rex," meaning king. Corning had theretofore applied the terms "Nonex" and "CRX" to glass of this character as indicative of its non-expansion qualities. Upon the adoption of the trade-mark "Pyrex," Corning applied it to many articles of glassware it was manufacturing, including all kinds of cooking utensils. It began the manufacture of laboratory equipment made of its heat-resisting glass and applied to that equipment the mark "Pyrex." Later, it manufactured electrical glass, such as insulators, industrial ware, such as pulleys for machinery, vacuum bottles, and many other articles of general as well as technical use. It manufactured a two-hundred inch telescope mirror disc for the California Observatory from its Pyrex glass and applied the name to the product. It manufactured the Mount Palomar two hundred-inch telescope mirror from its glass and applied the mark "Pyrex" to that product. It has spent millions of dollars advertising products of its manufacture from Pyrex glass as having peculiar heat-resisting qualities and characteristics not possessed by ordinary glass. The name "Pyrex," subsequent to 1915 and prior to 1922, became known throughout the country almost as a household word indicative of the products made of a particular kind of heat-resisting glass. The name "Pyrex" has been so thoroughly established as describing a heat-resisting glass that the late edition of the Merriam-Webster International Dictionary, Unabridged, contains the following definition: "Py' rex (pi' reks) (Gr. Pyr. fire L. rex king). A trade-mark applied to a variety of glasses and glassware usually resistant to heat, chemicals or electricity; hence (sometimes not cap.), glass or glassware bearing this trade-mark, py' rex, adj." Corning has never at any time manufactured or sold prescription bottles, but in 1922, it began the manufacture of a nursing bottle made for the purpose of permitting the heating of infants' food in the bottle without injury to the container. It applied the mark "Pyrex" to that product. In 1924, it obtained a certificate of registration of the trade-mark "Pyrex" applied to nursing bottles. It manufactured and sold many thousands of these bottles between the years 1922 and 1928, the bottles all being labeled "Pyrex Nursing Bottle," and sold as such. It was not until 1928 that plaintiff applied its trade-mark "Rex" to nursing bottles. These Rex nursing bottles are not similar to the Pyrex nursing bottles either in material, appearance or price. They are cheap bottles, made of ordinary glass, costing about five cents each, whereas the Pyrex nursing bottles are sold at twenty-five cents. In 1930, plaintiff extended the use of its trade-mark to a bottle known as a "utility bottle." In 1929, it applied the trade-mark "Rex" to toilet bottles of an indiscriminate character, and in 1931, it applied its trade-mark to a bottle known as the "Pockiteer Flask," used as a container for liquor. All of these products manufactured by plaintiff were made from ordinary glass. The only actual conflict claimed between plaintiff's products and those of the defendant is in the sale of the Pyrex nursing bottles. Reversal of the decree entered is sought on substantially the following grounds: (1) there is no statutory infringement of 960 the "Rex" trade-mark for prescription bottles by the application of the "Pyrex" trade-mark to Corning glassware and utensils; (2) there is no deceptive similarity between "Rex" and "Pyrex"; (3) the doctrine of expansion of trade affords no ground for extending the scope of the "Rex" registration from prescription bottles to nursers; (4) "Rex" is not a mark which is capable of extension; (5) Obear-Nester is estopped by laches from prosecuting this action; (6) the decree is erroneous in enjoining the use of "Pyrex" in territories in which Corning was selling "Pyrex" for years, and in which there had been no commercial use of "Rex." The trade-mark statute relied upon by plaintiff is Title 15, Sec. 96, U.S.C.A. (See, also: Sec. 16, Trade-Mark Act Feb. 20, 1905), which, among other things, provides that, "Any person who shall, without the consent of the owner thereof, reproduce, counterfeit, copy, or colorably imitate any such trade-mark and affix the same to merchandise of substantially the same descriptive properties as those set forth in the registration, or to labels, signs, prints, packages, wrappers, or receptacles intended to be used upon or in connection with the sale of merchandise of substantially the same descriptive properties as those set forth in such registration * * * shall be liable to an action for damages," etc. Plaintiff bottoms its claim for injunction upon the alleged infringement of a statutory trade-mark. There is no claim of unfair competition, unfair practices, nor fraud. There is no allegation as to any specific damages, and the court's jurisdiction was dependent entirely upon the fact that the suit was based upon a Federal statute. Mere registration under the Federal Act does not create a trade-mark and confers no new rights to the mark claimed, nor, indeed, any greater rights than already existed at common law without registration. United States Printing & Lithograph Co. v. Griggs, Cooper & Co., 279 U.S. 156, 49 S.Ct. 267, 73 L.Ed. 650; In re Plymouth Motor Corp., Cust. & Pat.App., 46 F.2d 211; Prestonettes, Inc., v. Coty, 264 U.S. 359, 44 S.Ct. 350, 68 L.Ed. 731. Registration is a method of recording for the protection of dealers, the public, and owners of trade-marks. It is notice of the claims of the owner affecting his right to the mark. But the right to such a trade-mark must have accrued from actual use, because such right is not created by registration of the mark. A trade-mark is inseparable from the good will of the business of its possessor and it exists only as an incident to the business in which it was lawfully acquired and with which it remains identified. Esso, Inc., v. Standard Oil Co., 8 Cir., 98 F.2d 1; United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141; Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L. Ed. 713. It appears from the sworn declaration of plaintiff in its application for registration that it claimed to have acquired a common law right to the exclusive use of the trade-mark "Rex" upon prescription bottles. It so limited its claim at the time of its original registration and again when it filed its application, April 25, 1927, for a re-registration of its mark. This was in the nature of a notice to the owners of trade-marks, to dealers, and to the whole world, that Obear-Nester was claiming the right to the exclusive use of this trademark on prescription bottles only. If it had in fact employed this trade-mark upon other products, these declarations, which in the present controversy are admissions against interest, may well have been accepted as disclaimers and an abandonment of any common law right to apply the trade-mark to any other product. The registered trade-mark is limited by its claim, and the applicant is concluded by his statement made a part of his application. The exclusive right to use the mark should be limited to use on the class of goods for which it was registered, as set forth in the statement filed, and to merchandise of substantially the same descriptive properties. Richter v. Anchor Remedy Co., C.C.Pa.,W.D., 52 F. 455; Richter v. Reynolds et al., 3 Cir., 59 F. 577; Pittsburgh Crushed-Steel Co. v. Diamond Steel Co., C.C.Mo.,E.D., 85 F. 637. What is said by the Supreme Court in Sontag Chain Stores Co. v. National Nut Co. of California, 60 S.Ct. 961, 967, 84 L. Ed. 1204, is in principle applicable here. The court reversed the decision of the Circuit Court of Appeals, which had sustained a re-issue patent and held it infringed by the accused device, and rejected the defense of intervening rights. In the course of the opinion it is said: "In the case under consideration the patentee might have included in the application for the original patent, claims broad enough to embrace petitioner's accused machine, 961 but did not. This `gave the public to understand' that whatever was not claimed `did not come within his patent and might rightfully be made by anyone.' The enlarged claims were presented with knowledge of the accused machine and definite purpose to include it. "Recapture within two years of what a patentee dedicates to the public through omission is permissible under specified conditions, but not, we think, `at the expense of innocent parties.' Otherwise, the door is open for gross injustice to alert inventors and baffling uncertainty will hinder orderly development of useful arts." The law of trade-marks is a branch of the law of unfair competition (F. W. Fitch Co. v. Camille, Inc., 8 Cir., 106 F.2d 635; Esso, Inc., v. Standard Oil Co., supra; United Drug Co. v. Theodore Rectanus Co., supra), and a trade-mark is infringed if such trade-mark, or a colorable imitation of it, is without authority placed upon substituted goods of the same class as those for which the mark has been appropriated. It would be a fraud for a producer or trader to use the trade-mark of another, and thus pass off his goods as the goods of the proprietor of the trade-mark. The vice consists in the sale of goods of one manufacturer or dealer as those of another by means of the use of such trade-mark. Esso, Inc., v. Standard Oil Co., supra; F. W. Fitch Co. v. Camille, Inc., supra. To warrant relief in equity, it must appear that false representation is directly or impliedly made. In the instant case, plaintiff's trade-mark, if limited to prescription bottles, has not been infringed by the defendant. But it is claimed that the goods of plaintiff and the goods of Corning have the same descriptive properties, and hence, the registration of plaintiff's trade-mark gave it a monopoly in the broad field of glassware, whether it has in fact entered into or extended its trade-mark beyond prescription bottles. Section 16 of the Trade-Mark Act of 1905 prohibits the affixing of a trade-mark without the consent of its owner "to merchandise of substantially the same descriptive properties as those set forth in the registration." Attached to plaintiff's statement and declaration filed with its application for registration of its trade-mark, October 23, 1900, is a drawing as a "facsimile presented for record," which was said to "truly represent the trade-mark sought to be registered." This is in the record as part of plaintiff's Exhibit 1 and is here reproduced. As has been said before, Corning has never manufactured prescription bottles, nor any glassware resembling such bottles. Its products constitute a distinct class because of their heat-resisting qualities. In fact, the name "Pyrex" has come to mean, and standard authorities have recognized it as meaning, glassware of a variety "resistant to heat, chemicals or electricity." Can the court by judicial fiat take from this word the meaning which it has acquired and which has been so universally accepted that lexicographers have recognized its established meaning? To suppress it and blot it out of our language and remove it from our dictionaries, transcends the power of a court of equity, and if attempted would result in "confusion worse confounded." This word, when affixed to glassware, means that such glassware has the quality of resistance to sudden changes brought about by exposure to heat, chemicals or electricity. We are not holding that the word has ceased to exist or lost its validity as Corning's trade-mark. Plaintiff's prescription bottle confessedly has no such qualities, nor does plaintiff manufacture any goods having such descriptive qualities. In other words, the goods of Corning occupy an entirely distinctive field. Many physical exhibits were displayed to the lower court and produced before us at the time of argument. Defendant's 962 Exhibit No. 81 is a photograph of certain of these exhibits, illustrating generally their character. There are in the record six other similar photographs showing other physical exhibits, but we are attaching Exhibit 81 by way of illustrating the marked difference between the products upon which plaintiff's trade-mark has been affixed and the products upon which defendant's trade-mark "Pyrex" has been affixed. It would be difficult to believe that any confusion would probably or could possibly result from the use of defendant's trade-mark on its distinctive wares, or that anyone of ordinary intelligence could be deceived by the use of its trade-mark, or that any such person might be led to purchase defendant's goods on the belief that he was purchasing those of plaintiff. The mere fact that one person has adopted and used a trade-mark on his goods, 963 does not, of course, prevent the adoption and use of the same or a similar trade-mark by others on articles of a different description. American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317. It can not be said that "Pyrex" is a colorable imitation of "Rex." There is no claim that defendant's trade-mark was not adopted in good faith. In fact, it has neither the appearance nor the sound of "Rex." But regardless of this fact, defendant's trade-mark is not affixed to products of substantially the same descriptive properties. Emerson Electric Mfg. Co. v. Emerson Radio & Phonograph Corp., Cust. & Pat.App., 90 F.2d 331. A prescription bottle is not an article offered to the general public, but a container used by a druggist or possibly a physician to hold medicine. It is a one-use article, sold by a wholesale druggist or jobber to the retailer. In other words, it is not sold ultimately as a bottle, but as a container of medicine or drugs. The purchaser is not interested in the character of bottle, but only in its contents. The trade-mark on such an article not sold as a separate commodity is not a competitor of, nor does it have anything in common with the trade-mark on Pyrex utensils bought as separate commodities for repeated use. The only substantial claim of conflict or confusion arises with reference to a nursing bottle manufactured by Corning from its heat-resisting glass and a nursing bottle manufactured by plaintiff out of ordinary glass, and as to this it should first be observed that plaintiff did not extend its business into this field until 1928, when it first placed its trade-mark "Rex" upon nursing bottles. Corning, in 1922, put out its Pyrex nursing bottles. These bottles were made of Pyrex glass so that they might be heated without injury, and they were branded the same as the baking ware and scientific apparatus manufactured by Corning. Corning had occupied this field six years prior to the time that Obear-Nester placed its "Rex" trade-mark upon nursing bottles, and during this time defendant expended large sums of money in advertising its Pyrex nursing bottle. The Rex nursing bottles are not similar to the Pyrex bottles, either in material, appearance or price. They are cheap bottles made of ordinary glass, costing about five cents each, whereas the Pyrex nursing bottles are sold at twenty-five cents each. The evidence of confusion or deception with reference to these nursing bottles, in view of the dissimilarity of appearance, dissimilarity of material and difference in price is not substantial. An infringement depends upon whether the resemblance is sufficiently close to deceive purchasers and thus pass off the goods of the producer as being that of another. In considering the deceptive tendencies of defendant's trade-mark, we should take into consideration all the surrounding circumstances. No person of ordinary intelligence can well be confused with reference to these articles. Kann v. Diamond Steel Co., 8 Cir., 89 F. 706; Allen B. Wrisley Co. v. Iowa Soap Co., 8 Cir., 122 F. 796; P. Lorillard Co. v. Peper, 8 Cir., 86 F. 956. But in any event, plaintiff entered the field after defendant had already occupied it and had spent large sums of money in advertising this Pyrex nursing bottle, thereby acquiring a prior right to the use of the trade-mark on this product. It should be observed before passing from this subject that all of plaintiff's products bear its registered trade-mark consisting of the letters in combination "O-N." This trade-mark appeared apparently on its advertisements as early as 1908. Whatever other trade-marks may be affixed to plaintiff's ware, it seems that there is also affixed the trade-mark "O-N." It is urged by plaintiff that under the doctrine of expansion of business, it is entitled to an unhampered use of its trade-mark "Rex" on products normally considered as of its manufacture. As has already been pointed out, plaintiff's suit is based upon an alleged infringement of a registered trade-mark. The bill contains no averments of unfair competition, nor, indeed, is it alleged that purchasers are deceived into buying the products of defendant in the belief that they come from plaintiff. It is doubtful whether the doctrine of expansion of trade is applicable in a case of alleged infringement of a technical registered trade-mark. Rosenberg Bros. & Co. v. Elliott, 3 Cir., 7 F.2d 962. The argument of plaintiff amounts to a claim that the registration of its trade-mark "Rex" for prescription bottles preserved to it for all time a monopoly not only on prescription bottles made of ordinary 964 glass but on all other bottles of whatever description or quality, and, in fact, upon all glassware. The contention can not be sustained. A somewhat similar contention was urged in Emerson Electric Manufacturing Company v. Emerson Radio & Phonograph Corporation, 2 Cir., 105 F.2d 908. In that case, the Emerson Electric Manufacturing Company brought suit for infringement of its trade-mark and for unfair competition against the Emerson Radio & Phonograph Corporation. In the course of the opinion, the court holding that when one acts innocently and is not chargeable with notice, he may demand that the court weigh his interest as it has developed at the time the suit is brought, said: "There is a great difference between such a case and one in which the second merchant invades a market which the first is already exploiting. Whether even then he is to be charged with notice of the first's prior user we lay aside; but certainly the defendants at bar should not be charged with notice that the plaintiff would begin to sell radios, or that the public would assume that radios sold by them came from the plaintiff. If the plaintiff proposed to keep the radio market as an unused preserve, it was bound to protect it against invaders by affirmative action; it could not impose upon them the duty of divining its own purposes or possible mistakes of the public." So here, the defendant could not certainly, in face of the declared purpose of plaintiff to limit its trade-mark "Rex" to prescription bottles, and its conduct in limiting its products to such bottles, have anticipated that it would begin to manufacture and sell nursing bottles. Having reached the conclusion that the decree must be reversed upon the grounds already considered, we pretermit consideration of the contention that plaintiff should in any event be estopped from charging defendant with infringement by the use of its trade-mark on its distinctive and varied products. The decree appealed from is reversed and the cause remanded with directions to enter decree dismissing plaintiff's bill of complaint on its merits.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509746/	633 S.W.2d 904 (1982) Ex parte Kirby Garland WORNELL. No. 68838. Court of Criminal Appeals of Texas, En Banc. June 9, 1982. *905 Kirby Garland Wornell, pro se. Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION ROBERTS, Judge. Wornell applies for habeas corpus relief from a conviction for aggravated rape. In 1979, the applicant was indicted in cause 4319 for the aggravated kidnapping of EMP with intent to violate and abuse her sexually. On the same day he was indicted in cause 4320 for the aggravated rape of EMP. Both offenses were alleged to have occurred on or about February 22, 1979. At the applicant's request, the causes were tried together. He pleaded guilty and testified that the allegations of the indictments were true and correct. He was given concurrent punishments of seven years' confinement. The applicant claims that his being convicted and sentenced for both offenses violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. It did not; each offense required proof of facts not required of the other. Ex parte McWilliams, 632 S.W.2d 574 (Tex.Cr.App.,1982) (aggravated kidnapping, aggravated rape, and aggravated robbery). The applicant also claims that his convictions violated the carving doctrine. The court, over this writer's dissent, abandoned that doctrine in McWilliams, supra. Habeas corpus relief is denied. CLINTON, Judge, dissenting. The application for postconviction relief pursuant to Article 11.07, V.A.C.C.P. was prepared, filed and considered while the carving doctrine was alive and well. Thus, attention to all constitutional jeopardy protections was not concentrated on in the habeas court. So, though the carving doctrine be abandoned, principles of double jeopardy other than those embraced in the Blockburger test remain. See, e.g., Ex parte Rogers, 632 S.W.2d 748 (Tex.Cr.App. 1982) and Ex parte Scott, 633 S.W.2d 823 (Tex.Cr.App.1980) (Dissenting Opinion). The Court does not address the question of "whether the repetition of proof required by successive prosecutions against [appellant] would otherwise entitle him to the additional protections" offered by other tenets of jeopardy law. See Brown v. Ohio, 432 U.S. 161, n. 6, 166-167, 97 S. Ct. 2221, n. 6, 2225, 53 L. Ed. 2d 187 (1977). If it be that the record is such that the question is not fairly presented, we should remand the cause to the habeas court to permit development of relevant evidence. I respectfully dissent. ONION, P. J., and TEAGUE, J., join in this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509806/	760 A.2d 786 (2000) 334 N.J. Super. 582 The COUNTY OF MONMOUTH, a Municipal Corporation of the State of New Jersey, Plaintiff-Appellant/Cross-Respondent, v. Robert E. HILTON, Defendant-Respondent/Cross-Appellant, and Greenpoint Mortgage Corp.; Jersey Central Power & Light Company; New Jersey Bell Telephone Company a/k/a Bell Atlantic-New Jersey; Tax Collector, City of Long Branch; Sewer Collector, City of Long Branch Sewerage Authority; Edison Radiology Group, P.A.; Block 425, Lot 7, Long Branch, New Jersey; and Joseph Scibetta; Angelina Scibetta; Elizabeth Latzko, Widow a/k/a Elizabeth Latzko Brady; Carmela Sverapa; William A. Helstrom; Jo Cavaliere Helstrom; Jersey Central Power & Light Company; New Jersey Bell Telephone Company a/k/a Bell Atlantic-New Jersey; Tax Collector, City of Long Branch; Sewer Collector, City of Long Branch Sewerage Authority; Michael Sinatra; Block 425, Lot 8, Long Branch, New Jersey; and Theresa M. Schmelter, Married; National Westminster Bank, N.J.; Jersey Central Power & Light Company; New Jersey Bell Telephone Company a/k/a Bell Atlantic-New Jersey; Tax Collector, City of Long Branch; Block 425, Lot 9, Long Branch, New Jersey; and Thomas Ward; Tax Collector, City of Long Branch; Sylvia Hartstein; DRS Enterprises d/b/a Tire Craft TBA Division; Woodshire Apartments; State of New Jersey, Division of Unemployment and Disability Insurance; Hagedorn Center for Geriatrics; Block 425, Lot 10, Long Branch, New Jersey, Defendants-Respondents. Superior Court of New Jersey, Appellate Division. Argued September 19, 2000. Decided October 23, 2000. 787 Robert B. Thaler, Red Bank, argued the cause for appellant/cross-respondent (Mr. Thaler, on the brief). Peter H. Wegener, Lakewood, argued the cause for respondent/cross-appellant (Bathgate, Wegener & Wolf, attorneys; Mr. Wegener, of counsel and on the brief). Before Judges PRESSLER, KESTIN and CIANCIA. PRESSLER, P.J.A.D. This condemnation case requires us to address the question of whether and if so, the extent to which, the prospect of a future assemblage of the subject property with contiguous property owned by others in order to create a single integrated unit may affect the subject property's fair market value and hence the compensation for its taking that must be paid by the condemning authority. We hold that the reasonable probability of such an assemblage in the near future, as calculated from the taking date, may be found to enhance the value of the condemned property as of that date but that the property may not be valued by the finder of fact as if the assemblage had already then taken place. Because the testimony of the condemnee's expert misled the jury as to the effect of a prospective assemblage and the charge to the jury did not explain the significance and the proper use of prospective-assemblage evidence, we reverse the judgment entered in the condemnee's favor based on the jury verdict, and we remand for a new trial. The facts relevant to our determination are largely undisputed. The subject property, owned by defendant Robert E. Hilton, is located in Long Branch and fronts on Ocean Avenue, directly across the street from the beach. It is approximately one-half acre in area and has a frontage of 104 feet. There was on the property on the date of taking, sometime between September 20 and October 3, 1996,[1] a large Victorian house built at the end of the nineteenth century, which had been converted into a five-family house and periodically 788 updated and renovated. Defendant resided on the third floor and each of the first two floors had two occupied apartments. The property was a protected prior non-conforming use, the Long Branch zoning ordinance having been previously amended to place it in the RC-1 zone, which excludes single-family residences, imposes a one-acre and 200 front-foot minimum and lists, as permitted uses, various types of multi-family developments, including mid-rise structures not exceeding six stories, townhouses, and waterfront mixed residential uses. The ordinance also permits specifically enumerated commercial uses, including restaurants, outdoor dining establishments, retail food stores, professional offices, and financial, insurance, and real estate services. Defendant's property is located at the northern end of Long Branch, a concededly less desirable area than the upscale southern end, known as the West End and Elberon sections. There are two multifamily residential developments in the West End section. One property, now known as the Renaissance, was purchased by its developers in 1997. It includes 87 residential units of mixed residential use, comprises 9.2 acres, and is located on the ocean side of Ocean Avenue and hence is waterfront property, not waterview property as is defendant's. The second, known as The Villas, on the site of the former Harbor Island Spa, was purchased by its developers in 1993. It includes 55 units of mixed residential development, comprises 5.4 acres, and is also waterfront property. With respect to the immediate area of defendant's property at the time of taking, just to its south were three contiguous vacant lots,[2] each in separate ownership, and each non-conforming in both area and frontage. Immediately south of those three lots and occupying the balance of the block to its southerly corner were two mid-rise multifamily dwellings built in the 1980s. Immediately to the north of defendant's property was another vacant lot, and north of that lot and running to the northerly corner was a group of older houses that had also been converted to multifamily use. The purpose of the condemnation by plaintiff County of Monmouth was to enlarge its Seven Presidents Oceanfront Park by the addition of defendant's property and the three vacant lots to the south. We further note that although all four of these parcels were included in the complaint, the condemnation of defendant's parcel was tried separately, and the other three are not before us. The report of the commissioners appointed by the court to value defendant's property assigned a fair market value as of the date of taking of $293,000. Defendant appealed to the Superior Court pursuant to R. 4:73-6, and a jury trial ensued, resulting in a verdict fixing fair market value at $310,000. The court, however, granted defendant's motion for a new trial, and the matter was then retried. Following the second trial, the jury found the fair market value of defendant's property as of the date of taking to be $600,000. Plaintiff appeals, challenging both the new trial order and the basis of the jury verdict in the second trial. While we affirm the new trial order for the reasons we hereafter set forth, we are satisfied that the jury verdict in the second trial was so tainted by error as to require its reversal and a remand for a third trial. We review the evidence at trial in the context of fundamental principles of condemnation. First, it is clear that private property may be taken for public use only upon the payment of "just compensation." N.J. Const. art. I, ¶ 20. Just compensation in its most general terms means the fair market value as of the date of the taking determined by what a willing buyer and a willing seller, neither being under any compulsion to act, would agree to. 789 See State v. Silver, 92 N.J. 507, 513-14, 457 A.2d 463 (1983) (further explaining that fair market value is "the value that would be assigned to the acquired property by knowledgeable parties freely negotiating for its sale under normal market conditions based on all surrounding circumstances at the time of the taking"). It is also well settled that in assigning fair market value, the inquiry is not limited to the actual use of the property on the date of taking but is, rather, based on its highest and best use. See, e.g., Ford Motor Co. v. Township of Edison, 127 N.J. 290, 301, 604 A.2d 580 (1992); State by Com'r of Transp. v. Hope Road Associates, 266 N.J.Super. 633, 641, 630 A.2d 387 (App. Div.1993), certif. granted, modified by 136 N.J. 27, 641 A.2d 1038 (1994). And "highest and best use" in turn is broadly defined as "`the use that at the time of the appraisal is the most profitable, likely use'" or alternatively, "`the available use and program of future utilization that produces the highest present land value'" provided that "use has as a prerequisite a probability of achievement." Ford Motor Co. v. Township of Edison, supra, at 300-01, 604 A.2d 580 (quoting Inmar Associates, Inc. v. Township of Edison, 2 N.J.Tax 59, 64-65 (Tax 1980)). See also American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 275, 280-282 (10th ed.1992) (defining highest and best use as "the reasonably probable and legal use of an improved property which is physically possible, appropriately supported, financially feasible, and that which results in the highest value, i.e. most profitable"). Based on this general formulation, a four-prong test, routinely employed by the Tax Court in assessment determinations, has evolved by which highest and best use is determined. It is that use that is 1)legally permissible, 2)physically possible, 3)financially feasible, and 4)maximally productive. See, e.g., Entenmann's Inc. v. Totowa Borough, 18 N.J.Tax 540, 546 (Tax 2000); Schimpf v. Little Egg Harbor Tp., 14 N.J.Tax 338, 343-344 (Tax 1994); Chesterfield Associates v. Edison Tp., 13 N.J.Tax 195, 210, n. 6 (Tax 1993), aff'd, 14 N.J.Tax 181 (App.Div.1994); United Jersey Bk. v. Lincoln Park Bor., 11 N.J.Tax 549, 557 (Tax 1991). Thus, highest and best use is determined not only by the applicable legal and physical constraints, but "by competitive forces within the market where the property is located." Schimpf v. Little Egg Harbor, supra, 14 N.J.Tax at 344. That is to say, "`[t]he proper determination of highest and best use requires a comprehensive market analysis to ascertain the supply and demand characteristics of alternative uses.'" Six Cherry Hill, Inc. v. Cherry Hill Tp., 7 N.J.Tax 120, 131 (Tax 1984), aff'd, 8 N.J.Tax 334 (App.Div.1986) (quoting Barret, "A Restatement of Highest and Best Use," Real Estate Appraiser and Analyst, November December 1979 at 8). The sole witnesses at trial were plaintiff's expert appraiser, Kenneth L. Walker, and defendant's experts, John P. Brody, his expert appraiser, and Robert J. Gorski, an architect. Plaintiff's expert opined that the highest and best use of the subject premises was its continuation as a protected pre-existing non-conforming five-family dwelling. On this basis, he considered all three methods of valuation, namely, cost less depreciation, income production, and comparable sales, concluding, based on the data he described, that these methods yielded a value of $314,000, $295,000, and $246,000, respectively. Explaining his reasons for believing that the comparable sales method was most reliable, his opinion was that the fair market value of the property was $295,000. He also testified that he had considered the value of the property as vacant land and as part of a prospective assemblage with the three southerly lots and had concluded that market conditions, including the high vacancy rates of the two mid-rise buildings on the same block, interdicted another mid-rise as a possible highest and best use of a prospective assemblage of the four parcels. He opined that the highest and best use of such an assemblage would be either town-house 790 or restaurant use and had concluded, based on the data he recited, that the land value in that case would be less than the fair market value of the present use. Defendant took an entirely different tack. First, he had Gorski lay out a proposed plan for a mid-rise building on the hypothetical four-lot assemblage. Gorski testified that by complying with all the bulk requirements and restrictions of the zoning ordinance, he had designed a building with 92 units on an assemblage of defendant's property and the three southerly vacant lots. As we further understand his testimony, he asserted that the zoning officer had informally confirmed to him the compliance of his plan with the zoning ordinance. No building permit had, however, been applied for and no site-plan approval sought. Brody, in turn, testified that the highest and best use of defendant's property was a mid-rise building containing 92 residential units. He then proceeded to appraise the as-vacant land value of the property as if an assemblage of the four lots had already occurred as of the date of taking and a 92-unit multifamily project met prevailing market conditions as well as the other definitional standards of highest and best use. By applying comparable sales data involving five other multifamily developments, four in Long Branch and one in Holmdel, and making a variety of adjustments, including a 400 percent adjustment for the density of the proposed 92-unit mid-rise, he then concluded that the fair market value of defendant's property as of the date of taking was $729,000. It is apparent that the jury gave considerable weight to Brody's evaluation by returning a verdict fixing the value at more than twice Walker's appraisal and only 20% less than Brody's. We pass what we regard as significant flaws in Brody's analysis of his underlying data[3] because we regard the basic premise of his methodology as erroneous. In sum, we are persuaded that appraising the value of defendant's property as if a four-lot assemblage had already taken place as of the date of taking and then basing highest and best use on such an assemblage constituted a fundamentally untenable and legally unsupportable approach. On an initial and fundamental level, a proposed future assemblage of parcels in different ownership cannot be the basis for application of a highest and best use analysis as of the date of taking because as of that date the parcels have not yet been assembled into the integrated unit required to support that use. Thus at the very least, the tests of legal permissibility and present feasibility have not been met. That is not, however, to say that the prospect of such an assemblage is irrelevant to the fair market value of any of the individual parcels. It has long been settled that 791 as a matter of determining just compensation for an exercise of eminent domain, all of the circumstances surrounding the property, including all of the factors affecting the market, are germane to that determination. Thus, if there is a probability that there may in the near future be an assemblage of lots into a single integrated unit supporting a particular highest and best use, a willing buyer may well be willing to pay not merely for the property under its present constraints but, in addition to that present value, for the probability of such an assemblage as well. Obviously, the greater the probability, the more a buyer would be willing to pay for it. Hence, the reasonable probability of an assemblagenot merely a future assemblage that is hypothetical or speculative may enhance the fair market value of the property because it is a factor that would influence what a willing buyer would pay for it. But it cannot be the basis for determining market value as if the assemblage had already taken place. The distinction between enhancing market value and constituting the basis of market value is, in our view, critical, and it is that distinction that rendered defendant's appraisal methodology legally defective. Although we are unaware of any reported case in this jurisdiction dealing directly with the question of the effect on market value of a prospective assemblage of disparately owned parcels,[4] we are persuaded that this issue is conceptually no different from the effect on market value of a prospective zoning change. The two situations are virtually identical in their salient character, that is, the prospect of a change in the basic circumstances surrounding the property that, if it occurs after the date of taking, would then permit a highest and best use different from and more profitable to the owner than the use existing or permissible as of the date of taking. And we are persuaded that the cogent analysis by Chief Justice Weintraub in the zoning-change situation applies in full measure to the future-assemblage situation. As he explained in State v. Gorga, 26 N.J. 113, 116, 138 A.2d 833 (1958): It is generally agreed that if as of the date of taking there is a reasonable probability of a change in the zoning ordinance in the near future, the influence of that circumstance upon the market value as of that date may be shown. But Chief Justice Weintraub then went on to make clear: The important caveat is that the true issue is not the value of the property for the use which would be permitted if the amendment were adopted. Zoning amendments are not routinely made or granted. A purchaser in a voluntary transaction would rarely pay the price the property would be worth if the amendment were an accomplished fact. No matter how probable an amendment may seem, an element of uncertainty remains and has its impact upon the selling price. At most a buyer would pay a premium for that probability in addition to what the property is worth under the restrictions of the existing ordinance. In permitting proof of a probable amendment, the law merely seeks to recognize a fact, if it does exist. In short if the parties to a voluntary transaction would as of the date of taking give recognition to the probability of a zoning amendment in agreeing upon the value, the law will recognize the truth. [Id. at 117, 138 A.2d 833] (Emphasis added). 792 The rationale of Gorga has been reaffirmed by State by Com'r of Transp. v. Caoili, 135 N.J. 252, 262-265, 639 A.2d 275 (1994), which distinguishes, however, between the admissibility of evidence of the prospective change and the effect that change would have on fair market value as of the date of taking. The rule as enunciated by Caoili requires that the judge make a threshold determination as to whether the prospective zoning change is reasonably probable in the near future. If the judge is satisfied that that preliminary showing has been made, the evidence of probable change is admitted, and the jury must then make "the critical inquiry ... [of] the reasonable belief by a buyer and seller engaged in voluntary negotiations over the fair market value of property that a change may occur and will have an impact on the value of the property regardless of the degree of probability." Id. at 264-265, 639 A.2d 275. See also State by Com'r of Transp. v. Hope Road Associates, supra, 266 N.J.Super. at 642-43, 630 A.2d 387. The prospect and consequence of a probable zoning change may be readily translated into the probable-assemblage situation. They share the same elements of a prospective change enhancing the value of the subject parcel by permitting a different and more profitable highest and best use. And we further point out that the eventual execution of a final contract for the purchase of land for development purposes is as fraught with contingencies as is the ultimate passage of the prospective zoning ordinance amendment. Thus, as we understand Caoili, the first step in the two-step trial process is for the judge to make an initial, gatekeeping determination of whether an assemblage was probable in the near future as measured from the date of taking based on the evidence before him relating to market conditions and the circumstances particular to the property. There are obvious factors in this record as well as others that may be adduced on retrial that will require consideration. Among them is the fact that the three vacant lots have been zoned into inutility and, in fact, a variance application sought by one of the owners, who wanted to build a single-family residence, had been rejected. Also to be considered is the development policy of Long Branch that the zoning ordinance amendment reflects, namely, a desire to have the property within the RC-1 zone developed for multi-family or permitted commercial uses as well as the efforts that had been made by Long Branch to solicit the interest of developers of such uses. Of course, that proof cuts both ways since unsuccessful efforts might also demonstrate the market's lack of interest in such development, a factor militating against reasonable probability of an assemblage in the near future. Most significantly, the judge will have to consider, assuming the reasonable probability of an assemblage of some or all of the three vacant lots, whether it is also reasonably probable that defendant's lot, already an income-producing use, would be joined in that or any other assemblage. Moreover, evidence respecting the demographics of Long Branch and its surrounding area in terms of the demand existing on the date of taking for permitted multifamily units would be highly relevant as well as any other evidence respecting consumer demand and developer's costs. If the judge determines that an assemblage including defendant's property was reasonably probable at a near-future time from the date of taking, then, according to the prescription of both Gorga and Caoili, the jury must be instructed to consider in its determination of fair market value the premium a willing buyer would pay for the probability of a future assemblage over and above the fair market value as represented by the existing use of the property.[5] In making this determination, we are persuaded 793 that a jury would have to determine the degree of probability of the assemblage since, as we have noted, the more probable the desired event is, the more valuable that probability is to a buyer and the greater the premium he would therefore be willing to pay. In this regard, we understand that what Caoili meant in the above quoted language respecting "an impact on the value of the property regardless of the degree of probability" was addressed to the court's gatekeeping function and not to the jury's determination. That is to say, the judge, in determining probability, need not determine degree of probability so long as there is reasonable probability, but the jury may consider the degree of probability, as indeed it must, in determining the extent of the premium the buyer would be willing to pay. Although we have reached our conclusion by analogizing to the zoning-change prospect, other jurisdictions that have considered the prospective-assemblage issue in condemnation cases have reached similar conclusions based on the distinction we have drawn between a highest and best use realizable as of the date of the taking and one that is only probable in futuro and therefore only enhances fair market value but does not determine it. See, e.g., Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934) (where most profitable use of condemned property can only be made in combination with other property owned by others, probability of such combination may be considered to the extent it would affect market value); County of Santa Clara v. Ogata, 240 Cal. App.2d 262, 49 Cal.Rptr. 397 (1966) (reasonable probability of joinder of condemned property with adjacent city-owned property added an increment of value to the condemned property); City of Indianapolis v. Heeter, 171 Ind.App. 119, 355 N.E.2d 429 (1976) (reasonable probability of an assemblage may be considered as enhancing market value); City of Lafayette v. Richard, 549 So.2d 909 (La.Ct.App. 1989) (probability of assemblage of disparately owned parcels could be considered as tending to increase the property's value); Petition of Central School District # 1, 78 Misc.2d 60, 355 N.Y.S.2d 947 (Sup. Ct.1974) (reasonably probable assemblage of disparately-owned parcels must be determined not as though the combined use was an accomplished fact but in terms of what a willing buyer would pay, in addition to what the property was worth without the assemblage, for the probability of that use); Clarmar Realty Co., Inc. v. Redevelopment Auth. of City of Milwaukee, 129 Wis.2d 81, 383 N.W.2d 890 (1986) (property owner may introduce evidence that the fair market value of the condemned property is enhanced by a probable assemblage). We consider briefly plaintiff's argument that the judge erred in ordering a new trial following the first trial of the cause. The basis of the ruling was the judge's admission, over defendant's objection, of letters written by defendant to the condemning authority complaining of the proposed condemnation and expressing his rather fervent desire to retain his property and his home. On post-trial motion, the judge was satisfied that he had erred because the admission of these letters prejudiced defendant's reliance on an assemblage theory. For the reasons we have already stated, we concur that a property owner's subjective feelings regarding a proposed condemnation are hardly relevant, if relevant at all, in determining, based on appropriate objective factors, what he would be likely to do based solely on prevailing market conditions without threat of condemnation. In short, an owner's wish not to have his property condemned should not factor into the determination of fair market value once it is condemned. Deferring to the trial judge's "feel" of the case, we cannot conclude that he erred in finding that the first verdict had constituted a miscarriage of justice within the intendment of R. 2:10-1. See also Dolson v. Anastasia, 55 N.J. 2, 6-8, 258 A.2d 706 (1969). 794 Finally, defendant has cross appealed from the rate of interest allowed by the judge on the condemnation award. Although we note that the rate of interest is ordinarily a matter within the court's discretion and an abuse of discretion must therefore be demonstrated, see Jersey City Redev. v. Clean-O-Mat, 289 N.J.Super. 381, 400, 673 A.2d 1360 (App.Div.), certif. denied, 147 N.J. 262, 686 A.2d 763 (1996), the issue is in any case moot in view of the need for a new trial. We assume that on retrial the court will be guided by the principles expressed in Jersey City Redev., supra. The judgment appealed from is reversed, and we remand for a new trial consistent with this opinion. NOTES [1] There was dispute between the parties as to whether the taking date was the late September date or the early October date. The parties agreed, however, and we concur, that the correct date between the two is immaterial to the issues here presented. [2] At the time of the taking, the most southerly of the three lots south of plaintiff's property had on it the remnants of a burnt-out house. [3] We point out, merely by way of illustration, that two of the five land sales for mid-rise development Brody relied on had taken place in the 1980s, a period which all the experts had agreed was one of inflated property values followed by a marked decline starting in late 1987. The per acre price of the two mid 1980s land sales was $1,225,547 and $1,851,851, and as to the first of these, no mid-rise was ever built and the property was eventually used for restaurant purposes. It is, therefore, doubtful that the two earlier sales were comparable. Of the three later sales, one preceding the condemnation by about three years and the other two occurring more than a year thereafter, the per acre vacant land price ranged from $250,000 to $383,000. Moreover, two of the three later sales were for mixed residential use on waterfront property, again sufficiently not comparable as to require substantial adjustments for location. But even without those adjustments, the per acre price, applied to defendant's premises, would yield a value less than that of plaintiff's appraisal. Perhaps most glaring of all was Brody's 400% density adjustment for the subject premises on the assumption that the zoning officer's informal expression was an approval, that site plan approval would be forthcoming for a 92-unit structure, and that cramming so many units on the acreage produced by the assemblage would nevertheless make the units marketable at approximately the same level as the luxury units on the two waterfront properties. Finally, we note that Brody did not consider any of the other permitted uses for the assemblage. [4] We are aware that an assemblage was considered in the context of severance damages in State v. Bakers Basin Realty Co., 138 N.J.Super. 33, 350 A.2d 236 (App.Div.1975), aff'd o.b., 74 N.J. 103, 376 A.2d 1189 (1977). In that case, however, the assemblage was not merely prospective because a third person had contracted to buy the parcels constituting the assemblage prior to the date of taking albeit after the State's intention to take a part of the assemblage was known. Because of the doctrine of equitable conversion, there was thus a unity of ownership on the date of taking, not disparate titles such as we have here. [5] We recognize that in view of the non-conformance of the lot, there would be no other permissible use available as of the date of the taking.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509808/	633 S.W.2d 866 (1982) Richard MORALES, Appellant, v. The STATE of Texas, Appellee. No. 60653. Court of Criminal Appeals of Texas, Panel No. 3. May 19, 1982. 867 John L. Lesley, Amarillo, for appellant. Barry E. Blackwell, Dist. Atty., Dumas, Robert Huttash, State's Atty., Austin, for the State. Before ODOM, W. C. DAVIS and McCORMICK, JJ. OPINION W. C. DAVIS, Judge. Appellant was convicted of aggravated assault. The jury assessed punishment at five years. Appellant's sole contention on appeal is that the evidence was insufficient to support the verdict of the jury in that it was not established that the knife used by appellant to injure the complainant was in fact a deadly weapon as alleged in the indictment. The State presented testimony from two witnesses. Rosa Jimenez, the complainant, testified that on June 10, 1978, she went to the El Jacalito Bar with Anita Vasquez. Jiminez said that at the bar "some guys" sat down at their table; the appellant was identified as one of those "guys." Jiminez testified that she started to walk away from the table when appellant grabbed her arm and said "he would show [her] something." She said he took something from his pocket, "that's when he went like that to me. (Indicating)" The prosecutor asked, "Q. You say he went like that. What did he do? You made a motion with your hand. What was in his hand? A. I guess it was a knife. Q. Did it look like a knife to you? A. Yes. Q. Did it have a blade? A. Yes. Q. You said he made a striking motion. Where did he strike at, please? A. Right here on the face. (Indicating)" The complainant stated that after the appellant cut her face, some friends took her to the hospital where her wound was stitched. On cross-examination, defense counsel asked the witness: "Q. Now, earlier, you stated that you really didn't see what you were cut with, did you? 868 A. No. * * * * * * Q. Are you just assuming that that was what it was because he cut you? A. It had to be a knife." On re-direct examination, the witness stated that she just saw something shiny. Anita Vasquez testified that she was with the complainant the night of the assault. Vasquez said that she saw the complainant and the appellant arguing, then when the complainant walked away from the appellant, the appellant pulled her by the arm, took his knife out of his pocket, and cut her. The witness identified a photograph, which was introduced into evidence, as accurately depicting the complainant's face and the wound she received that night. The State was bound by the indictment under V.T.C.A., Penal Code, Sec. 22.02(a)(3) to prove that appellant used a deadly weapon. "Deadly weapon" is defined in V.T. C.A., Penal Code, Sec. 1.07(a)(11) as: "(A) a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." This Court has held that a knife is not a deadly weapon per se. Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975). But a knife can be shown to be a deadly weapon through proof of the manner of its use, its size and shape, and its capacity to cause serious bodily injury. Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978); Alvarez v. State, 566 S.W.2d 612 (Tex.Cr. App.1978). Wounds inflicted upon a victim are a factor to consider in determining whether a weapon qualifies as a deadly weapon. Denham, supra. Expert testimony is not required in making such a determination. Id. In the instant case, we know nothing about the size and shape of the knife used by appellant, except that it apparently fit in appellant's pocket. The manner of the weapon's use is not so elusive, however. The photograph of the wound suffered by complainant shows a deep slash from just underneath the complainant's earlobe across her cheek to the corner of her mouth. The wound appears to be deep and has been closed by numerous sutures. Throughout its length, the wound is in close proximity to the complainant's throat, starting approximately one to two inches above the jawline and roughly parallel to it. Although we cannot ascribe to common knowledge medical knowledge such as the position and function of the jugular vein and carotid artery, it is certainly common knowledge that the throat is a particularly vulnerable part of the body, as exemplified by the popular expression "go for the throat." The photograph of the wound suffered by complainant presented the jury with ample evidence from which to draw the inference that the manner of appellant's use of the *869 knife in the instant case rendered it a deadly weapon.[1] The judgment is affirmed. NOTES [1]	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509834/	7 F.2d 944 (1925) UNITED STATES v. SOUTHERN CALIFORNIA WHOLESALE GROCERS' ASS'N et al. District Court, S. D. California, S. D. August 28, 1925. James M. Beck, Acting Atty. Gen., A. T. Seymour, Asst. Atty. Gen., Henry A. Guiler, Sp. Asst. Atty. Gen., Herbert N. Ellis, Sp. 945 Asst. U. S. Atty., of Los Angeles, Cal., and Harry H. Atkinson, Sp. Asst. Atty. Gen, for the United States. Lawlor & Degnan, of Los Angeles, Cal., for defendant Southern California Wholesale Grocers' Ass'n. Flint & MacKay, of Los Angeles, Cal., for defendant Southern California Ass'n of Manufacturers' Representatives. Wright & McKee, of San Diego, Cal., for defendants Delta Mercantile Co. and Klauber-Wangenheim Co. JAMES, District Judge. By the bill in equity, filed herein on April 2, 1924, on behalf of the United States, defendants are charged with having engaged in a conspiracy to restrain trade and commerce, contrary to the provisions of section 1 of the Act of Congress approved July 2, 1890, commonly referred to as the Sherman Anti-Trust Law (Comp. St. § 8820). It is alleged that the illegal acts were engaged in for a period of three years prior to the filing of the bill of complaint, and that the defendants continue therein. An injunction is prayed for to restrain the defendants from further continuing in the alleged conspiracy. The government further asks that by the decree the voluntary associations named as defendants be dissolved, and that the members thereof be enjoined from again organizing any like or similar "association, exchange, corporation, company, or concern." In the complaint there are described a series of acts which it is alleged the defendants, by concert and agreement, have done and agreed to do, all of which it is charged were and are in violation of the prohibitory terms of the law referred to. The business of all of the defendants, as the bill of complaint describes it, has to do with the transportation, handling, and marketing of staple lines of groceries. The defendants may be divided into two general classes: First, The Southern California Wholesale Grocers' Association and its members; that organization being engaged in handling in wholesale quantities, and distributing to retail dealers, grocery commodities. Second, the organization and its members once called the Southern California Association of Manufacturers' Representatives and now known as the Los Angeles Food Brokers' Association; that organization being a brokerage concern and an intermediary between the manufacturer and the jobber or wholesaler. The two principal associations named operate separately, and their organizations are distinct. The brokers' field of patronage necessarily is limited to the wholesalers or jobbers, who in turn confine their market to the retailer. The charge of the government may be very generally summarized as follows: (1) That the defendants by their organizations and through various means sought to monopolize the business of distribution of commodities referred to and to enhance the prices charged; (2) that, as a part of the plan, and as effective means to the end sought, they influenced manufacturers to refuse to sell directly to other distributors, particularly to what are called the "chain stores," and refused to buy from any manufacturer who did so sell to independent buyers. The testimony and exhibits offered in this case fill many hundreds of pages; the trial having lasted approximately four weeks. It will not be of any advantage to attempt to present more than the briefest summary of the evidence addressed to the pivotal propositions involved. The decision in this case is to be controlled by that evidence, and the inferences legally deducible therefrom, which affect the questions as to whether, by the maintaining of uniform prices by the wholesalers' association, and the action of the wholesalers and brokers in discouraging the manufacturers from selling to the chain stores, interstate commerce was interfered with. It was admitted that, in the commodities described in the complaint and dealt in by the defendants, a substantial volume was carried into and out of the state of California to and from the Southern District thereof. The bulk or greater quantity of such commodities brought into the state was disposed of by marketing to retailers in Southern California. The wholesalers made no attempt to secure a market in California outside of the principal southern counties, but several of them had a small trade in Arizona, with some sales in the state of Nevada. The testimony was that from several of the wholesaler members shipments to points outside of the state amounted to from 3 to 5 per cent. of their gross business. The wholesalers' association issued a regular price list which was in the hands of all of the salesmen; the prices contained in which each member was bound to maintain. The testimony was that the maintaining of this list was compulsory only within the territory comprising Southern California, and that traveling representatives of the different members soliciting business in Arizona and Nevada were not required to use it, although it was shown that they did carry 946 it and looked to its quotations as furnishing a general basis for the price charged. There was evidence that in the outside territory those prices were followed, and there was evidence that there were exceptions when different prices were made. The association fixed a summer vacation period of about a week, during which time no salesman was allowed to solicit trade. This vacation period was observed both as to the representatives of the wholesalers working in Southern California and those working in Arizona and Nevada. Members of the wholesalers' association made a cash deposit with the secretary, against which fines might be levied in the judgment of the secretary where a violation of the regulations of the association had been committed, including deviations from the price schedule. It may be here pertinent to state, in view of certain decisions referred to hereinafter, that, all of the evidence being considered, it cannot be found as a fact that the prices charged by the wholesalers and fixed in their schedules were excessive, or the profits accruing disproportionate to a fair and reasonable return from the business when handled and managed with reasonable prudence and economy. Counsel for the government contend, in relation to the wholesalers and their price-fixing agreement, that interstate restraint of trade in the commodities concerned would result whether there were any shipments out of the state or not; secondly, that, if the lists were used and prices maintained outside of the state, this outflowing commerce would, without question, be restricted. The court is asked to conclude, from the fact that the acknowledged effort of the wholesalers was to maintain schedule prices among their members, and from the fact that the list prices were used as a basis by the traveling men working in Arizona and Nevada, together with the fact that a vacation period was observed in the trade territory outside of the state, that necessarily the understanding and agreement was to make effective the price-fixing plan in the outside territory as well as in the state of California. To reach this conclusion we must give no weight to the affirmation of the wholesalers themselves that prices were not maintained outside of the District of Southern California; also give no effect to the fact as shown that there were variations made by member wholesalers in Arizona and Nevada from the schedule price list; also discard from consideration the fact that some issues at least of the price lists bore upon their face the printed notice that the prices appended were effective only in Southern California. Such a conclusion is justified only by adopting the assumption that every operation of the wholesalers in the prosecution of their business and the securing of profits is clouded with suspicion and doubt as to the good faith of their asserted efforts to keep within the law, and that the exceptional circumstances shown regarding the business done in other states are self-created for the purpose only of deceiving the government and giving a fair color to a business intentionally operated in violation of law. The implication involved is not only of fraudulent practice but of perjury before the court. True it is that conspirators work secretly and under cover to effect their purpose, but it is not a fair rule which would declare that under every charge of conspiracy the evidence in defense must be viewed with suspicion and distrust. A like condition as to the use of price lists was represented by the evidence in Pacific States Paper Trade Association et al. v. Federal Trade Commission, decided by the Circuit Court of Appeals for the Ninth Circuit (4 F.[2d] 457). The court disposed of the contention of the government that the use by salesmen, traveling out of the state within which the trade association was located, of the same list which was made obligatory within the state, established the charge that interstate trade was restrained and affected, by saying: "The use of a price list of some kind for the information and guidance of salesmen in taking orders and making sales is almost a necessity, and it is going very far to say that the mere use, without combination or agreement, of a particular price list, which the salesmen are not bound to follow, and which differs or may differ from the price lists used by other salesmen in the same locality, has such a tendency to fix prices or limit competition as to bring it within the condemnation of the Anti-Trust Act." There is necessary to be considered the agreement of the wholesalers to maintain within the Southern District of California the scheduled price for grocery merchandise. That there was such an agreement, and that it was observed by practically all of the members of the wholesalers' association, is admitted. On their part, the grocers have represented by the evidence produced in their behalf that, after the war, there was a situation of great instability in the market, that competition was carried to the extent of being ruinous to that trade, and that the business of supplying the wants of those who looked to them for their merchandise was 947 insecure and hazardous. This condition was, they have told us, one which belonged to the unsettled, after the war time. They claim that through the work of their association, including the maintaining of price schedules, the business was brought to a condition which was stable. The evidence here was not that a scale of prices was put into effect and designed to be maintained indefinitely and arbitrarily, without regard to market conditions of supply and demand. On the contrary, it was shown that those schedules were changed and corrected at frequent intervals. In considering the Sherman Anti-Trust Act and its restraining demand against combinations formed to fix prices on commodities traveling in interstate commerce, a student of legislation is apt to form the hasty opinion that, wherever the consumer of any such commodity is affected in the price paid by a lessening of any sort of competition among the sellers through their combination or agreement, the act perforce has been violated. Students of the world of trade, as have students of tariffs and freight rates, looking farther than the simple result first mentioned, have found that there are many other factors to be considered, all involved in the great problem of preserving the balance between supply and demand and promoting the interests alike of those who produce, those who consume, and the intermediary agencies of distribution necessarily involved. A dealer handling a variety of merchandise may select a single commodity, and, because of the power of his financial backing and the volume of his business, depress the price to the consumer until it represents less than the cost to the seller. Plainly he would not conduct business at a loss and involve all commodities of his stock at one time in exploits of that kind, and yet price cutting to the extent mentioned on the one article, for the time being might demoralize trade in that article and jeopardize the business of innumerable dealers engaged in the handling of the commodity. Can it be said that the more numerous dealers, not conditioned so as to stand a loss on the commodity, for the purpose of preventing widespread demoralization of the price, may not band themselves together and in combination and in defense of their very existence in the trade fix a price on the article or commodity which shall return to them a reasonable profit over a just and fair handling cost, even though such action on their part may have some tendency to affect interstate shipments supplying the article to their locality? In interpreting the Sherman Anti-Trust Act, the courts have consistently defined the restrain of commerce which falls within its prohibition as being "undue restraint," and in considering price agreements have condemned those which established "arbitrary" schedules prices out of relation with reasonable profits, conditions of supply and demand being kept fully in view. Cases decided within recent months by the Supreme Court of the United States, to my mind may be said to fairly express the view just stated. I refer particularly to Industrial Association of San Francisco et al. v. U. S., 45 S. Ct. 403, 69 L. Ed. ___; Cement Manufacturers' Protective Association et al. v. U. S., 45 S. Ct. 586, 69 L. Ed. ___; Maple Flooring Manufacturers' Association et al. v. U. S., 45 S. Ct. 578, 69 L. Ed. ___, decided in April and June of this year, and printed in advance sheets of the court's opinions. In the Industrial Association Case the court further remarked: "The alleged conspiracy and the acts here complained of, spent their intended and direct force upon a local situation for building is as essentially local as mining, manufacturing or growing crops and if, by a resulting diminution of the commercial demand, interstate trade was curtailed either generally or in specific instances that was a fortuitous consequence so remote and indirect as plainly to cause it to fall outside the reach of the Sherman Act." The court referred to four other cases previously decided and said: "The four cases and the one here, considered together, clearly illustrate the vital difference, under the Sherman Act, between a direct, substantial, and intentional interference with interstate commerce and an interference which is incidental, indirect, remote, and outside the purposes of those causing it." Plainly, the acts of the wholesale grocers' association in the use of price schedules were concerned with a local situation and confined to the southern counties of California only. The intentional and moving design was not to regulate or affect the incoming commerce nor to lessen the demand for the commodities dealt in. If the demand was diminished because of the price, then that effect was, as the Supreme Court said in the Industrial Association case, "incidental, indirect, remote, and outside the purposes of those causing it." The logic of the conclusions expressed in the foregoing can hardly be challenged, 948 unless it must be said that the business of the broker and that of the wholesaler constitute mere obstructions in the current of distribution between the manufacturer or producer and the retailer. Those agencies have long been deemed legitimate and useful aids in the general business of supplying commodities to consumers. If we are to say that manufacturers should always go direct to the retailer, with the cost and trouble of maintaining extensive and widespread sales forces, warehouses, and distributing agencies, as adjuncts to their business as manufacturers or producers, then why not advance the last step and eliminate also the retailer? Plainly, if the intermediaries are of no service in securing better distribution of products and commodities, they would be retired from the field of trade under the inexorable rule that, where no demand is present, then business will cease. Then, too, it is a question that can be answered only by a specialist possessed of a fund of information not spread before us in the record of this case, as to whether the distributing organization of the producer or manufacturer, if so made as to cover the full retail trade, would result in lessening the ultimate cost price to the consumer, assuming for the moment that that factor alone would determine the result here. One of the items of evidence which the government urged as showing illegal acts on the part of the wholesale grocers' association was the issuance and distribution among members of lists of names of retailers who had been reported as financially irresponsible or who had failed to pay their bills for merchandise. There was the understanding among the members in the association that such persons should be accepted as cash customers only. It is not shown that such classification so indicated, as the result of the name appearing upon such a list was necessarily obligatory upon the wholesalers, but the prime purpose of the list was to furnish information to the members regarding the responsibility of patrons, so that loss might be saved on bad accounts. I do not believe that the issuance of these lists, nor the understanding connected there-with, established a violation of the Anti-Trust Law, any more than did the lists referred to in the decision in the case of the Cement Manufacturers' Protective Association v. U. S., hereinbefore referred to. In that case the court said: "Members of the association render monthly reports of all accounts of customers two months or more overdue, giving the name and address of the delinquent debtor; the amount of the overdue account in ledger balance; accounts in hands of attorneys for collection and any explanation. * * " And the court, in holding that the distribution of the reports showed no violation of the law, declared: "The evidence falls far short of establishing any understanding on the basis of which credit was to be extended to customers, or that any co-operation resulted from the distribution of this information, or that there were any consequences from it other than such as would naturally ensue from the exercise of the individual judgment of manufacturers in determining, on the basis of available information, whether to extend credit or to require cash or security from any given customer." Certainly it would be in the interest of economy in the general business of distribution, both as affecting the dealer and the consumer, that loss suffered through the nonpayment of retailers' accounts, whether due to dishonesty of the creditors or his financial irresponsibility, and which would necessarily become a part of the overhead cost of distribution, should be saved. The matters in issue, as they affect particularly the wholesalers' association and its members, considered separately from the brokers' association, have received attention in the foregoing. The brokers were not active participants in the affairs of the wholesalers' association, although the evidence shows, and it would appear as an obvious fact, that in general the brokers work in close sympathy and harmony with the wholesalers this because the field of business of the brokers is naturally and normally limited to supplying the wholesale trade. As to one branch of the issue made by the government in this case, the evidence requires a finding adverse to both the wholesalers' association and that of the brokers. The trade in grocery commodities, at a time shown by the evidence to be within the period specified in the bill of complaint, was confronted with several retail organizations which are described in the evidence as "chain stores." These organizations were operated separately and severally. They conducted different retail stores and branches, particularly in the city of Los Angeles, with business of such a volume as to give them a commanding position as buyers of grocery commodities in large quantity lots. They demanded of the manufacturers the right to buy direct. In some cases the manufacturer (as he had a legal right to do) declined to vary his practice of distributing his products 949 through brokers and wholesalers. In other cases manufacturers answered the demand by selling direct to the chain stores. The latter practice necessarily affected the business of the broker and wholesaler, and it may not be questioned, I think, but that the evidence sufficiently establishes that the wholesalers and brokers were a unit in their efforts to persuade manufacturers from accepting orders direct from the chain stores. This line of buying and selling direct applied to comparatively few products, ordinarily those which were the subject of nation-wide exploitation by advertising. It may be true, as contended for by the defendants, that the presence of a few large buyers, whose business was to retail commodities, worked no material saving to the consumer when the aggregate of vendible necessities in the particular line is considered, and that, further, the practice of the chain stores to attract business by advertising and selling certain lines at close to nonprofit prices disturbed the system of retail business to the general disadvantage of trade on the whole. Be that as it may, it must be said that any action so taken or conduct pursued, which was intentionally designed to deter a manufacturer or producer from shipping his merchandise to an acceptable customer within the state of California or the Southern District thereof, contravened the prohibitory terms of the law. Latterly, it appeared by the evidence, there has been less complaint because of efforts of the wholesalers and jobbers to preserve intact the line of custom through their agencies, but the condition has existed, and the government is entitled to be assured that, so far as the defendants are concerned, it will be abstained from in the future. Injunctive relief is justified on the ground last stated only. The wholesalers' and jobbers' organizations, as has been before suggested, are not outlaws formed for the particular purpose of doing acts forbidden by the law prohibiting combinations which interfere with interstate commerce. They may, under their plan of organization and by-laws, serve a useful purpose in the trade; hence the prayer that they be dissolved may not be allowed. A decree will be entered in accordance with the conclusions expressed in this opinion. As the result of this decision is favorable in part to the defendants and favorable in part to the government, I think it proper that there should be no recovery of costs, and that each party should bear its own expenses in this suit incurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509839/	760 A.2d 505 (2000) STATE of Vermont v. Frederick KOCH. No. 98-416. Supreme Court of Vermont. June 14, 2000. Present AMESTOY, C.J., DOOLEY, MORSE, JOHNSON, and SKOGLUND, JJ. ENTRY ORDER Defendant Frederick Koch appeals from the district court's denial of his motions for judgment of acquittal and a new trial following a jury verdict finding him guilty of grossly negligent operation of a motor vehicle. He argues that (1) the State failed to prove its case beyond a reasonable doubt, (2) the prosecutor presented an improper closing argument, and (3) the jury instructions were inadequate. We affirm. On May 9, 1997, at around 4:00 p.m., defendant struck a pedestrian, Thomas Cataldo, with his car while driving north-bound on Route 100. The accident occurred north of the Village of Stowe. Cataldo later died as a result of his injuries. The record evidence reveals that, although the skies were overcast and there had been some drizzle, visibility was clear at the time of the accident. Defendant was taking prescribed lithium, but there was no evidence that he was under the influence of any intoxicating substances. Defendant had been awake, however, since 4:30 a.m., and had been driving for the better part of the day prior to the accident. Defendant did not recall falling asleep before the accident. The record evidence showed that as defendant approached the accident scene, he had an unobstructed line of sight of about 1200 feet, or 400 yards. A witness who 506 was driving south down Route 100 just before the accident clearly observed Cataldo, who was over six feet tall and weighed about 185 pounds, from a distance estimated by the State in its opening statement to be about 216 yards.[1] The witness recalled that Cataldo was standing outside of the white fog line, facing in a southwesterly direction. There was no evidence that defendant was speeding or driving erratically. Nor was there evidence that defendant took any evasive action to avoid striking Cataldo. The police noted that there were no yaw or skid marks on the pavement or in the dirt shoulder. The medical evidence indicated that the victim was initially struck on the left side and slightly from behind, that he was thrown some distance by the impact, and died from injuries to the brain and lungs. Defendant was charged with operating a motor vehicle in a grossly negligent manner, resulting in the death of another, in violation of 23 V.S.A. § 1091(b). A jury, which also considered the lesser-included offense of negligent operation, found him guilty of the greater charge. This appeal followed. Defendant first argues that the State failed to present a prima facie case of gross negligence, and the evidence presented does not support such a conviction. He claims that he was entitled to either a judgment of acquittal or a new trial. When reviewing a denial of a motion for judgment of acquittal, we must consider whether the evidence, viewed in the light most favorable to the State and excluding the modifying evidence, is sufficient to fairly and reasonably support a finding of guilt beyond a reasonable doubt. See State v. Brooks, 163 Vt. 245, 254-55, 658 A.2d 22, 29 (1995). Gross negligence is defined by statute as "conduct which involve[s] a gross deviation from the care that a reasonable person would have exercised in that situation." 23 V.S.A. § 1091(b) The Legislature adopted this language after we ruled, in State v. Beayon, 158 Vt. 133, 605 A.2d 527 (1992), that a previous version of § 1091, providing for prosecution of vehicular homicide, "require[d], at a minimum, a mens rea of criminal negligence." Id. at 136, 605 A.2d at 528. In Beayon, we explained that, to be found guilty of criminal negligence, the accused must have disregarded a risk of death or injury to such a degree that the failure to perceive it, given the circumstances, involved a gross deviation from the standard of care of a reasonable person. See id.; see also State v. Free, 170 Vt. ___, ___, 749 A.2d 622, 624 (2000) (mem.). The presence or absence of gross negligence turns upon the particular factual circumstances of each case, and therefore rests within the special province of the jury. See Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963). Indeed, we have observed that "decided cases are of little assistance in determining the existence of gross negligence under the evidence in a particular case. Each case turns almost entirely on its own peculiar factual situation." Langdon-Davies v. Stalbird, 122 Vt. 56, 57, 163 A.2d 873, 874-75 (1960). Here, the evidence showed that defendant had an unobstructed view of the accident site for almost 400 yards, along a relatively straight stretch of road, during daylight hours, and amidst relatively light traffic. A witness just before the accident observed the victim plainly from a substantial distance. The witness was able to observe the victim's clothes and build. The same witness recalled that the victim was standing outside the regularly traveled portion of the roadway. There was no testimony as to precisely how long the victim might have been visible to defendant, although the witness, who was driving from the opposite direction, clearly 507 placed Cataldo in a stationary position before the accident. Thus, the jury could reasonably have inferred that Cataldo was plainly visible to a driver in defendant's position for a reasonable period. Further, the jury heard evidence that the victim lived about 100 yards south of the accident site, suggesting that he had been walking away from or toward his home at the time, and saw photographs that revealed nothing in the immediate vicinitysuch as a store or restaurantto suggest his very recent arrival. In these circumstances, a jury could reasonably have concluded that defendant's failure to observe and avoid striking the victim involved a gross deviation from the standard of care of a reasonable person.[2] Contrary to the dissent, our analysis here is not controlled by the recent decision in Free, in which we affirmed a trial court's dismissal of a gross negligence charge stemming from an accident in Bennington. The circumstances in Free were strikingly distinguishable from the case at bar. There, the evidence indicated that the defendant was focused upon oncoming traffic while attempting to turn left at a downtown intersection and failed to observe the victim, who was simultaneously attempting to cross the street. The fact that the driver had, at most, three to four seconds to observe the victim before impact was compounded by the accompanying circumstance that the driver was simultaneously "paying attention to the flow of traffic around him." Free, 170 Vt. at ___, 749 A.2d at 624. Here, there were no similar circumstances to distract defendant's attention, and no testimony as to the specific number of seconds that the victim was visible to the defendant.[3] As Justice Dooley, dissenting in Free, observed, "a driver's duty to watch the road is related to the circumstances that confront him and the place and manner of operation." Id. at ___, 749 A.2d at 626. The specific circumstances here, in contrast to those in Free, amply supported a conclusion that defendant was grossly negligent in striking the victim, even ifas the dissent suggestshe had between five and six seconds to observe him. Next, defendant argues for a new trial, alleging that the State advanced an improper argument to the jury and that the court inadequately instructed the jury. Since defendant failed to object to either the prosecutor's closing arguments or the court's jury instructions, these issues have not been preserved for appeal, and we will not consider them. See Imported Car Center, Inc. v. Billings, 163 Vt. 76, 78, 653 A.2d 765, 768 (1994) (issues not objected to at trial will not be considered upon appellate review). Affirmed. JOHNSON, J., dissenting. The decision this Court issued on December 14, 1999, upholding defendant's conviction was supported by a single fact. We stated that "the State's evidence showed that defendant had an unobstructed view of Cataldo for almost 1200 feet, or for a minimum of 20 seconds, during daylight hours." State v. Koch, 98-416, slip op. at 2 (Vt. Dec. 14, 1999) (mem.). Based on this fact alone, we concluded that the evidence supported defendant's conviction for grossly negligent operation of a motor vehicle. In his motion to reargue, defendant points out that the single fact upon 508 which we relied is incorrect. The majority corrects the factual error but still holds that the evidence supports the conviction. In my view, the factual correction requires a reversal of defendant's conviction. I therefore dissent. Contrary to our decision in December 1999, the State's evidence did not show that defendant had an unobstructed view of Cataldo for 1200 feet or for twenty seconds. Rather, the State's evidence showed that defendant had an unobstructed view of Cataldo for about 5.4 seconds. No evidence placed Cataldo at the side of the road for any longer than 5.4 seconds. So the issue is whether inattention for 5.4 seconds while traveling on a 1200-foot straightaway at five-to-ten miles per hour under the speed limit is gross negligence. Our precedent does not support the majority's conclusion that this evidence is sufficient to support a conviction for grossly negligent operation of a motor vehicle. In its original entry order, the majority relied on State v. Devine, 168 Vt. 566, 719 A.2d 861 (1998). In Devine, the defendant drove his car across the double yellow center line and collided with the vehicle traveling in the opposite direction, killing the driver. The evidence viewed in the light most favorable to the State showed that (1) the defendant had had little opportunity for sleep during the several days before the accident, (2) he had been consuming alcohol and smoking marijuana during this period, (3) he had had trouble staying awake on the day of the accident and had fallen asleep in his car earlier in the day, (4) the road was dry and it was a clear day with good visibility, (5) the defendant was driving in excess of the speed limit, (6) he drove across the double yellow line across two lanes of oncoming traffic into the victim's car without any attempt to slow down or turn away, and (7) after the accident, he did not realize that he had hit another car. See id. at 567, 719 A.2d at 863. Based on this evidence, we upheld the conviction, relying on cases involving alcohol consumption, lack of sleep, and driving in excess of the speed limit. None of these factors is present in this case. In this case, the evidence showed that (1) defendant was traveling below the speed limit, (2) the driver of the vehicle behind defendant did not notice defendant driving erratically or swerving, (3) nor did this driver see the victim standing at the side of the road, (4) the day was overcast and parts of the road were wet because it had been raining, (5) there was no evidence that defendant was under the influence of drugs or alcohol, and (6) defendant was aware that he had hit the victim and stopped after the accident. The only evidence to support the conviction is that defendant must have been inattentive for 5.4 seconds to have failed to observe the victim at the side of road. Devine is not analogous to this case. More recently, we decided State v. Free, 170 Vt. ___, 749 A.2d 622 (2000) (mem.). In Free, we affirmed the trial court's decision dismissing the charge of grossly negligent operation of a motor vehicle because the facts could not support a finding of gross negligence. See id. at ___, 749 A.2d at 623. The evidence in Free showed that the defendant was traveling at ten to fifteen miles per hour during daylight hours when he entered the intersection of Main Street and Morgan Street in Bennington. The defendant turned onto Morgan Street, but failed to notice a pedestrian in the well-marked crosswalk, although the accident reconstructionist testified that the pedestrian had been in the crosswalk for four to five seconds before the defendant hit him. We held that the defendant's inattention to a pedestrian for a mere three to four secondsas he must have spent one to two seconds of the total five seconds observing the traffic flow "indicates, at best, a mere error in judgment, loss of presence of mind, or momentary inattention." Id. at ___, 749 A.2d at 625. Such brief inattention, we concluded, was not sufficient to support a conviction for gross negligence. See id. 509 This case is like Free because the only evidence to support the conviction is inattention to a pedestrian for 5.4 seconds. Indeed, this case presents a stronger argument than Free because defendant's inattention to the pedestrian for 5.4 seconds was on a 1200-foot straightaway in the road, whereas, in Free, the defendant's inattention to the pedestrian for five seconds was in a well-marked crosswalk. "It is one thing to say that a few seconds of inattention is not gross negligence as a matter of law when a driver is proceeding along a straight, dry road during the day; it is quite another to say so, when the driver is turning across a pedestrian crosswalk." Id. at ___, 749 A.2d at 626 (Dooley, J., dissenting). The majority's decision in this case is irreconcilable with Free. It is also contrary to the cases in other jurisdictions upon which we relied in Free. See, e.g., Plummer v. State, 118 Md.App. 244, 702 A.2d 453, 465 (1997) (conviction for gross negligence reversed where evidence showed defendant was briefly inattentive, drifted onto shoulder of road and killed pedestrian); People v. Maloof, 254 A.D.2d 766, 678 N.Y.S.2d 175, 176 (1998) (reversing conviction for gross negligence where evidence showed defendant failed to see pedestrians and drifted onto shoulder of road, hitting two pedestrians and killing one of them). If five seconds of inattention to a pedestrian in a well-marked crosswalk is not gross negligence, then 5.4 seconds of inattention to a pedestrian on a 1200-foot straightaway is not gross negligence. I respectfully dissent. NOTES [1] The only evidence of the distance from which the witness first observed Cataldo was a photograph taken at the witness's direction indicating her location. No specific measurement of the distance was offered to the jury. [2] There was no direct evidence that the victim was visible to defendant for 5.4 seconds, twenty seconds, or any specific period of time. The dissent derives the 5.4-second figure by calculating, from a photograph, the witness's distance from the victim, and factoring in the speed the witness estimated she was driving. The jury did not hear or consider this figure. Rather, it considered the circumstances as a whole, including visibility, traffic pattern, and defendant's clear and extended line of sight while he was approaching the accident scene, in reasonably concluding that his failure to avoid striking the victim was gross negligence. [3] In Free an accident reconstruction expert testified at the motion hearing as to the approximate amount of time involved.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509901/	633 S.W.2d 267 (1982) STATE of Missouri, Respondent, v. Arthur RATLIFF, Appellant. No. WD 32291. Missouri Court of Appeals, Western District. April 27, 1982. 268 Robert A. Simons, Kansas City, for appellant. John Ashcroft, Atty. Gen., Jefferson City, Carl S. Yendes, Asst. Atty. Gen., Kansas City, for respondent. Before CLARK, P. J., and MANFORD and KENNEDY, JJ. 269 CLARK, Presiding Judge. Arthur Ratliff was convicted by a jury on two counts of sodomy and was sentenced to concurrent terms of eight years. On this appeal, he takes no issue with the sufficiency of the evidence, thus obviating the necessity for recounting the facts upon which the jury adjudicated the issue of guilt. In his first point, Ratliff contends he was entitled to dismissal of the indictment because, in violation of § 545.780, RSMo 1978, he was not brought to trial within 180 days of arraignment. The record does reflect the date of Ratliff's arraignment to have been December 18, 1979 and the date of trial July 23, 1980, an elapsed time of 218 days. On June 10, 1980, Ratliff filed a motion to dismiss on the ground of delay in bringing the case to trial. The trial court overruled the motion on June 16, 1980 without findings or comment. Ratliff's point is twofold; first, that the statute and the time computation alone were sufficient to require his discharge. Second, he argues that the state is not entitled to the benefit of discretionary action by the trial court under the statute because no record was made by the court showing reasons for the action taken. Ratliff's argument overlooks or ignores delays occasioned in his case by pretrial motions which he filed. On February 1, 1980, Ratliff moved to dismiss the indictment on the ground that no record was made of proceedings before the grand jury which returned the indictment. While that motion yet pended, he moved on February 19, 1980 for dismissal on a claim of multiplicitous counts and double jeopardy. Finally, on February 21, 1980, he moved for dismissal alleging the insufficiency of the arrest warrant. All of the foregoing motions were overruled by the trial court on April 17, 1980. The elapsed time from February 1, 1980 to the date of that ruling amounted to 76 days which, if excludable from computation of the 180-day time limit, brings his trial date well within the statutory mandate. Section 545.780.3(1)(c), RSMo 1978 provides: "3. The following periods of delay shall be excluded in computing the time within which the arraignment or trial of any such offense must commence: (1) Any period of delay resulting from other criminal proceedings concerning the defendant, including but not limited to: * * * * * * (c) Delay resulting from hearings on pretrial motions." While Ratliff asserts that none of the excusable causes for delay enumerated in the statute are relevant to this case, he fails to advance any argument as to why the period from February 1 to April 17, 1980 consumed in disposition of the pre-trial motions he had filed is not excludable under the provision above cited. Quite apparently, the motions filed by Ratliff between February 1 and February 21, 1980 required disposition before trial could commence and, to the extent hearings on those motions delayed the trial, that time is excludable from the computation under the statute. At the same time, it may also be reasonably assumed that the motions lay without ruling until April 17, 1980, at least for some number of days, because the court was occupied with other business and not because Ratliff was instrumental in postponing a decision. The failure by Ratliff even to recognize that some period is excludable because of the motions he filed deprives the court of any argument as to what time should be assigned and deducted on this account. It is unnecessary to confront in this case the issue of what number of days between February 1 and April 17, 1980 is to be deducted under § 545.780.3(1)(c), RSMo 1978 in computing the time allowable for bringing Ratliff to trial. This follows because Ratliff bears the burden under the statute of showing that any delay beyond the statutory limit was occasioned by the state. State v. Newberry, 605 S.W.2d 117, 124 (Mo.1980). Even were it assumed that no tolling was accomplished by presentation of Ratliff's three pre-trial motions, he was 270 nevertheless not entitled to invoke the potential remedy of dismissal of the charges unless he met the threshold requirement of showing that delay of his trial beyond 180 days was occasioned by the state. In State v. Richmond, 611 S.W.2d 351 (Mo.App.1980), this court held that a defendant meets his burden to show trial delay occasioned by the state when he produces a record confirming that trial was not had within 180 days of arraignment. This follows because it is the duty of the state to bring the defendant to trial and the state may not excuse delay by its neglect to move the case forward. In this case, however, the delay between February 1 and April 17, 1980, a sufficient time if deducted to meet speedy trial requirements, was not occasioned by activity or inactivity by the state but by the pending unruled motions Ratliff had filed. No case has been cited to us and independent research has disclosed none which settles upon the state a presumptive responsibility for trial delay caused by unruled motions filed by the defendant. A more reasonable view would require that the proof show which of the parties acted to advance and which delayed disposition, or if the delay was merely that normally incident to the pre-trial relief sought. That is not to say that a defendant necessarily bears the consequence of delay merely because he authored the unruled motion. Under the statute, however, it is the initial burden of the defendant to show the state was responsible for the delay. If the proof fails to demonstrate that the state caused or contributed to cause delay in disposition of the motion, or if the delay was merely a normal and reasonable period necessary to a studied disposition of the defendant's motion on the merits, the delay was not occasioned by the state and the defendant makes no case for discretionary consideration of the penalty of dismissal. In the present case, Ratliff made no attempt to show that his pre-trial motions filed between February 1 and February 21 were not ruled until April 17 because of any act or omission by the state or that he was rebuffed in attempts to obtain an earlier ruling himself. Moreover, the elapsed time of less than 60 days between the filing of the last motion and the ruling on all the motions can scarcely be considered abnormal or tardy in a metropolitan circuit with an extensive criminal trial docket. On this record, Ratliff was not entitled to invoke the sanctions of § 545.780.5, RSMo 1978 because he failed to meet the preliminary requirement of showing a delay in trial beyond 180 days occasioned by the state. On the same point, Ratliff also contends that the trial court was obligated under the statute to make a record showing the reasons why his motion to dismiss was overruled. He argues that the summary entry denying his motion gave no reason and was thus error. Under § 545.780.5, RSMo 1978, the court is required to make a record showing the action taken in regard to dismissal or continuance showing also the reasons for such action. In State v. Richmond, supra, the rationale of the statute was analyzed and it was noted that the decision to dismiss a charge for failure to provide the defendant a speedy trial is an exercise of discretion by the trial court. The exercise of that discretion is reviewable on appeal. Various factors to be considered by the court in passing upon the motion to dismiss are enumerated in the statute. The requirement that the trial court justify its ruling on the record serves to aid the reviewing court in its evaluation of the ruling, particularly with recognition of the factors which the legislature has described. All of the foregoing, however, assumes that the trial court is called upon to decide whether to dismiss a case because the defendant was not tried within 180 days for causes occasioned by the state. If the defendant has not carried the initial burden of proof, there is no discretionary decision to be made and no accompanying necessity to justify the decision of record by a statement of reasons. Where, as here, the defendant has made no showing that delay of his trial beyond 180 days was occasioned by 271 the state, no necessity for a statement of reasons arises and summary disposition is appropriate. In his second point, Ratliff complains of improper redirect examination by the state of its witness Bobbie Jean Ratliff, the defendant's wife. Testimony had previously been adduced by the state from the two victims R. M., age 8 and T. P., age 12. Witness Ratliff was asked by the state whether she thought R. M. and T. P. were exaggerating about the incident and whether she believed them. Over defendant's objection, the witness was permitted to answer the questions, affirming her confidence that her daughters were accurately describing the events. Defendant asserts that it was error to permit one witness to express an opinion as to whether another witness has testified truthfully and cites State v. Rush, 77 Mo. 519 (1883) and State v. Thebeau, 350 Mo. 956, 169 S.W.2d 373 (1943). Were the record to consist only of the challenged redirect examination, the point would be valid because the issue of credibility is injected by showing the general reputation of a witness for truth and veracity. State v. Lane, 371 S.W.2d 261 (Mo.1963). Testimony by one witness as to whether or not she believes the testimony of another witness does not prove reputation but infringes upon the decision reserved for the fact finder. Here, however, it was the defendant who first raised the issue in cross-examination of the witness. The redirect inquiry was retaliatory and rehabilitative. On cross-examination of the witness, Ratliff's attorney inquired whether the two girls, R. M. and T. P., " * * * are apt to exaggerate stories to you or have been doing that quite a lot * * *." Inquiry was also made of the witness about a prior incident when one of the girls reported objectionable contact by Ratliff and whether it had been done for the purpose of gaining some favor from the mother. As was noted in State v. Gaskin, 618 S.W.2d 620, 625 (Mo.1981), the question in such cases is whether a party is entitled to rehabilitate its witness after matter has been developed on cross-examination tending to refute or weaken the evidence the witness has given. To what extent rehabilitation is permitted lies primarily in the discretion of the trial court. State v. Gaskin, supra. The general rule is that a witness may be properly interrogated on redirect examination as to any matter which tends to remove inferences or suggestions which might have resulted from testimony on cross-examination. State v. Gatlin, 539 S.W.2d 731 (Mo.App.1976). In the present case, defendant opened the subject of the witness's opinion as to whether the girls' testimony was unworthy of belief because they tended to exaggerate accounts of events. We cannot conclude that the trial court abused its discretion in permitting the state to pursue the same line of inquiry on redirect examination despite the conclusion that the testimony, both on cross-examination and on redirect examination, was inappropriate to the issue of credibility. The judgment is affirmed. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509764/	282 F. Supp. 528 (1968) Jody E. FRANKS v. NATIONAL DAIRY PRODUCTS CORPORATION. Civ. A. No. 1590. United States District Court W. D. Texas, Austin Division. March 27, 1968. 529 Don L. Davis, Byrd, Davis, Eisenberg & Clark, Austin, Tex., for plaintiff. William L. Garwood, Graves, Dougherty, Gee, Hearon, Moody & Garwood, Austin, Tex., for defendant. OPINION ROBERTS, District Judge. For a number of years past, the primary task which faced federal courts sitting in Texas in diversity cases involving products liability was that of divining the progress and direction of the Texas law in the area.[1] Through the landmark Texas cases of McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), and Jack Roach-Bissonnet, Inc. v. Puskar, 417 S.W.2d 262 (Tex. 1967), we have witnessed the far-reaching extension of the policies of Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942), to the present law as expressed in the Restatement of Torts, sections 402A and 402B. Our role then has changed in large measure from that of predicting the future of the rules to that of applying the law to new and varying fact situations. To that end we now turn our attention. Our case arises out of an incident which occurred at a drive-in restaurant in Temple, Texas, called Jody's Big Burger. Our plaintiff, JODY FRANKS, was the owner and operator of Jody's Big Burger on August 7, 1963. Our defendant, NATIONAL DAIRY PRODUCTS CORPORATION, is the manufacturer of Kraft's Red Label type shortening, a quality shortening which is widely distributed for commercial use. Approximately one (1) month prior to August 7, 1963, plaintiff had purchased a 110 lb. container of Kraft Red Label 530 type shortening from the Wells Meat Company in Killeen, Texas. Red Label type shortening was used by the plaintiff at his drive-in restaurant to prepare foods in a deep-fry cooker. On August 7, 1963, between 7:00 and 8:00 P.M., plaintiff decided to drain his deep-fry cooker of grease and refill it with new, unused shortening. As was his practice, he turned off the thermostat heat control on the cooker and placed an empty Red Label container under the drain of the deep-fry cooker. After the cooker had cooled for about 3-5 minutes, plaintiff opened the drain plug, letting the grease drain into the empty Red Label container. After several minutes of conversation with a customer, plaintiff noted that the grease had drained out of the cooker. Plaintiff then walked over to the container, apparently to remove it from the main kitchen area. While plaintiff was bending down to pick the container up but before he actually lifted or moved the container there was a loud noise and the hot grease sprayed or spewed out of the container, striking the plaintiff on his hands, arms, face and shoulders. For these injuries, plaintiff seeks to hold defendant strictly liable. PART I Plaintiff's first theory of recovery is that of section 402A of the Restatement of Torts.[2] In attempting to invoke successfully the section 402A formula, plaintiff demonstrates clearly that defendant NATIONAL DAIRY PRODUCTS CORPORATION was engaged in the business of selling. Also, it is clear that plaintiff is an intended user, one whom the manufacturer should have reasonably expected to use its products. There was much dispute as to whether the Red Label type shortening in our case was "in a defective condition unreasonably dangerous to the user," and whether the product reached the user without substantial change in the condition in which it was sold. Before detailing the conclusions on those points, it is necessary to review part of the testimony in the case. Defendant's explanation for the explosion (through the expert testimony of the official in charge of production of Red Label shortening) was that the can into which plaintiff was emptying the hot shortening contained a small amount of water or similar liquid. The water, because of a vaporization temperature relatively lower than that of the shortening, rapidly vaporized, thus expanding quickly in volume. This expansion, according to the expert, caused the hot shortening to spray out of the container onto plaintiff. In short, defendant's explanation for the explosion relied on the presence of water in the container. The expert stated that unless liquid was present in the container, there could have been no explosion. Plaintiff on the other hand testified that it was his practice to change the shortening every four (4) days. The evening of August 7, 1963, constituted the fourth day of use of that particular batch of shortening, and thus the grease needed changing. Plaintiff further testified that the container he used that evening had been washed one-to-three days earlier, and had been set upside down on a wooden rack to dry. He observed that when he set it under the 531 drain spout of the cooker, it was dry and empty. Although there were no other witnesses to corroborate plaintiff's testimony that the can was dry and empty, this Court specifically finds that there was no water or foreign liquid in the container at the time in question. Where then do we stand in terms of the section 402A formula? That shortening which, when put to proper use by a proper user, will explode is an unreasonably dangerous product seems beyond cavil. The troublesome problem, as counsel realized, is the section 402A requirement of the identification of a defect. Of course, it has often been stated that in cases where an explosion is involved (such as in the exploding or breaking bottle cases), the defect is so obvious as to warrant little or no discussion. Perhaps that is so because, using the test mentioned in Ozark v. Wichita Manor, 252 F.2d 671, 675 (5th Cir. 1958), an explosion of a product which does not ordinarily explode when properly used is the type of circumstance which points an accusing finger at the manufacturer. While that reasoning alone may be sound, it may nevertheless be profitable to explicate fully this Court's thoughts on the matter. This Court is aware of what has been termed the "cornerstone rule in products liability", that "proof of mere injury furnishes no rational basis for inferring that the product was defective for its intended use." Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 853 (5th Cir. 1967), and cases cited therein at n. 10. Of course, in our case, there is proof of more than the fact of plaintiff's burns that is, we have here direct eyewitness testimony of the explosion of the product. However, there was no testimony which identified specifically either some molecular content or some molecular arrangement of the shortening as the defect which caused the explosion.[3] We are thus faced with what has already become an increasingly recurring problem in products liability cases the necessity of proof of defective condition by the use of circumstantial inferences. This method of proof has long been permitted in negligence cases, under the doctrine of res ipsa loquitur, to allow the jury to infer negligence from an unexplained accident, provided certain factors were present. The Fifth Circuit recently reiterated the rule within the strict liability framework: (W)hen circumstantial evidence is the only proof, courts have infrequently inferred negligence (here a defect) simply from the accident and proof of careful conduct by the plaintiff, and then only in instances where the accident is the type which, standing alone, points an accusing finger at the maker. Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d 854. It is essential to the proving of a defect in that manner (where, as is nearly always the case, the product is in the hands of a user or consumer) that the plaintiff negative improper handling or use[4] and that plaintiff negative causes of the accident other than the product's own defective condition.[5] First, the question of plaintiff's use of the product. Although the defendant's instructions for the use of Red Label type shortening are contained in the Kraft's Practical Buying Guide and in the Handbook for Kraft Salesmen, the testimony indicated that there were two critical areas as to proper use. It 532 was recommended that the Red Label user daily filter the shortening being used by draining it through a filter or strainer (thus removing food and breading particles), then clean the deep-fry cooker, and then replace the used shortening in the cooker. This Court finds that plaintiff complied with this recommendation. It was further the plaintiff's practice to drain the shortening and throw it away every four (4) days. Again this more than satisfies the manufacturer's use requirements. Section 402A limits recovery to cases in which the product reaches the consumer or user without substantial change in the condition in which it is sold. It is well-known that shortening when used turns brown (from an original white) and through use will acquire very small amounts of the cooked items. Inasmuch as this cooking is the use intended, it appears to this Court that those changes are not substantial within the meaning of the rule. In any event, as stated in comment "p" to section 402A, the question is essentially whether the responsibility for discovery and prevention of the dangerous defect should remain with the manufacturer or shift to a later party in the chain. The answer in our case is clearly that the manufacturer retains that responsibility. The requirement that there be no substantial change in the condition of the product should be no obstacle to plaintiff's recovery here. Under the Jakubowski reasoning, it is further necessary for the plaintiff to negative causes of the explosion other than the product's defective condition. It appeared from the testimony that there could have been three possible causes for the explosion. Defendant's primary reliance was on the explanation that there was either water or other similar liquid in the bottom of the container when plaintiff started the draining process. This Court found above that there was no such water or liquid present. Conceivable there could have been some type of foreign solid in the shortening; however, plaintiff's proper use (both in terms of filtering and in terms of the short periods of use) of the shortening indicates that this was not the case. This Court concludes that the only explanation for the explosion which injured plaintiff is that there was some defective condition in the product itself. This is the only inference which is reasonable under the circumstances. National Dairy's defense as to other causes of the explosion is similar to the defenses urged in Marathon Battery Co. v. Kilpatrick, 418 P.2d 900, 914 (Okl. 1966), and Otis Elevator Co. v. Robinson, 287 F.2d 62, 64 (5th Cir. 1961). What we have is a manufacturer's expert who expresses the opinion that an object will not explode in the absence of a foreign substance such as water. Once it is determined by the fact-finder that there was no foreign substance, the manufacturer's defense is revealed to be simply that there was no explosion. As to this fact, there can be no quarrel: in our case there was an explosion. The only other legal question raised was National Dairy's defense of misuse. While we assume that misuse is a valid defense under section 402A in Texas, in light of what was said earlier as to plaintiff's careful conduct in following the instructions, defendant has not sustained the misuse defense. PART II Plaintiff's alternative claim is based on a section 402B misrepresentation cause of action.[6] As found in Part I, defendant is a seller within the meaning 533 of the rule. The hurdles to plaintiff's use of section 402B are the identification of the misrepresentation as to quality and the correlation of any reliance with the misrepresentation. The evidence as to express representations consists of the brochure directed to prospective users of Red Label and the handbook for the salesmen. While both suggest the manner in which Red Label shortening should be used, neither expressly represents that the product can be used safely. Of course, it could be contended that a term implied in the language is that the shortening could be used safely; in other words, if a manufacturer expressly states that a product can be used for certain periods of time in a certain manner, then a user is justified in interpreting that express language to mean that it can be used safely and without explosion for that period in that manner. But there is a fatal defect in any representation theory which is grounded on construction of the express language in the written materials the plaintiff testified clearly and unequivocably that he did not rely upon the brochures or any other writing. Plaintiff seems to advance another suggestion as to the manner in which this Court might find reliance on a representation as to quality. The reasoning is suggested by the following dictum by Chief Justice Traynor in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 701, 377 P.2d 897, 901, 13 A.L.R. 3d 1049 (1962): In the present case, for example, plaintiff was able to plead and prove an express warranty only because he read and relied on the representations of the Shopsmith's ruggedness contained in the manufacturer's brochure. Implicit in the machine's presence on the market, however, was a representation that it would safely do the jobs for which it was built. Under these circumstances, it should not be controlling whether the plaintiff selected the machine because of the statements in the brochure, or because of the machine's own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the job it was built to do. Plaintiff thus argues that whenever a product is placed on the market, there should be implied a section 402B representation that the product would perform safely within the scope of its intended use. In support of this theory, plaintiff testified that he in fact relied on Kraft's name, that he had used Kraft products for over seven (7) years and that Red Label shortening had served him well in this past use. This Court is unable to read the section 402B language as to representations is such a liberal manner. The language in the Restatement of Torts, particularly in comment "h" to section 402B, directs our attention to what we normally denominate as express representations, either oral or written. While the illustrations in the section were certainly not intended to be exhaustive, nevertheless, they speak only in terms of express representations. And in spite of the impressive expression of policy in Greenman v. Yuba Power Products, Inc., supra, we can find no court which has sustained recovery on that doctrine alone. Perhaps the basis for our reticence lies in our view of the proper section 402A vis-a-vis section 402B strict liability structure. As suggested in comment "b" to section 402B, the additional feature required under that section (but not under section 402A) is the affirmative misrepresentation as to quality or character. If one adopts the plaintiff's contention that implicit in the presence of a product in the marketplace is the implied guarantee that it will safely do the jobs for which it was intended, then the section 402A requirement that a product not only be dangerous (i. e. unsafe) but unreasonably so has been redefined in terms solely of a representation of safe use; and the section 402A requirement of proof (by direct or circumstantial evidence) of "defective condition" has been effectively extinguished. At that point, we may well have reached 534 the age in which, at least as to safe use to prevent physical harm to consumers, we have made manufacturers absolute insurers. This Court does not feel warranted in making such an assumption as to the Texas view of products liability. PART III Our remaining task is that of assessing damages due the plaintiff. Our plaintiff will forever, in all likelihood, bear the burn scars on his face, arms, chest, and shoulders. The treatment of the burns involved a considerable sum of money, and plaintiff's recovery was accompanied by physical pain and suffering and emotional distress. Plaintiff's eyesight is partially affected by bright sunlight as a result of the injuries. We heard testimony as to plaintiff's business losses occasioned by the explosion, and there was testimony as to the cost of domestic help while plaintiff was recuperating. Under all the circumstances, we find that National Dairy Products Corporation is liable to the plaintiff as discussed in Part I. It is ordered that the defendant pay to the plaintiff the sum of $15,874.10 and court costs which this Court finds to be the value or sum which will fairly and reasonably compensate plaintiff for his injuries. It is so ordered. NOTES [1] See, e.g., Putman v. Erie City Manufacturing Co., 338 F.2d 911 (5th Cir. 1964); Ford Motor Co. v. Mathis, 322 F.2d 267, 3 A.L.R. 3d 1002 (5th Cir. 1963); Bowerman v. Goodyear Tire & Rubber Co., 105 F. Supp. 119 (N.D.Tex.1952). [2] The Restatement of Torts section 402A rule is as follows: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. [3] A sample of what was thought to be part of the exploded shortening was sent to a research chemist for testing and examination, but he did not run the melting test to ascertain if the sample would suddenly explode or burst into flame. His explanation for not running the test was as follows: Because Sample 2, the dark sample, had previously exploded, I was advised by a superior not to attempt to melt the sample because of possible injury to myself or anyone else in the laboratory. [4] Evangelio v. Metropolitan Bottling Co., 339 Mass. 177, 158 N.E.2d 342, 347 (1959). [5] Jakubowski v. Minnesota Mining & Mfg., 42 N.J. 177, 199 A.2d 826, 830 (1964). [6] The Restatement of Torts section 402B rule is as follows: One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509771/	7 F.2d 978 (1925) BYRNES v. MISSOURI NAT. BANK. No. 6844. Circuit Court of Appeals, Eighth Circuit. September 4, 1925. Paul Bakewell, Jr., of St. Louis, Mo., for appellant. Rhodes E. Cave and Thomas S. McPheeters, both of St. Louis, Mo. (Bryan, Williams & Cave, of St. Louis, Mo., of counsel), for appellee. Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge. WALTER H. SANBORN, Circuit Judge. This is an appeal of James W. Byrnes, successory receiver of the Forked Leaf White Oak Lumber Company, from an order of the court below to pay over to the Missouri National Bank $2,000 of the moneys he collected from the Fisher Body Company, a corporation, in payment for lumber and other materials which his predecessor, Edward R. Butler, had sold out of the property of the lumber company in his possession and control as such receiver, and it presents the question of the authority of a receiver, without the order, direction, or knowledge of the court, whose instrumentality he is, to borrow money to pay the liability he incurs as receiver, and to pledge the choses in action or other property of the corporation which he holds as trustee for its creditors and stockholders to secure the repayment of the moneys he borrows. The facts which condition the answer to this question in this case are these: On April 23, 1921, in a suit in equity between Lima Locomotive Works, complainant, and the lumber company, defendant, the court 979 below appointed Mr. Butler receiver of the latter's property and authorized him to "operate and run all mills, stores, logging roads, railroads, or other property" of that company. On March 28, 1922, on the petition of Mr. Butler as such receiver, on the written consent of 181 unsecured creditors, whose claims aggregated $369,184, out of a total of 212 unsecured creditors, the total amount of whose claims was $398,926.69, and in the presence of counsel for the lumber company who did not object, the court below made a written order that Mr. Butler as receiver be empowered to borrow an aggregate amount not exceeding $150,000, and to issue receiver's certificates therefor, secured by a lien, subject to the mortgage and other secured creditors, upon all the property of the lumber company and by "40 per cent. of the proceeds of the sale of lumber, ties, and other forest products made by the receiver from this date, and the receiver is hereby directed and ordered to withhold and deposit in special account 40 per cent. of the proceeds of such sale to be applied upon the payment of the certificates herein authorized." Thereafter, on May 3, 1923, A. A. Rotzien was an employee and salesman of Mr. Butler as receiver. The Fisher Body Company, a corporation, was indebted to Butler as receiver in the sum of $2,714.85, for lumber and material which he had sold and delivered to it out of the property in his hands as receiver. He told Rotzien that he required immediately $2,000 to pay drafts drawn against supplies and materials he had ordered and bills for labor performed for him as receiver. He assigned, indorsed, and transferred to Rotzien his accounts and claims as receiver against the Fisher Body Company, and requested him to procure the $2,000 for him. Rotzien went to the Missouri National Bank, borrowed the $2,000 of it, assigned these accounts to it as collateral security, and turned the money over to Butler as receiver, less $23.73 discount retained by the bank, and Butler used it to pay the drafts and bills already described. Subsequently, by the order of the court below, James W. Byrnes succeeded Mr. Butler as receiver, and as such he collected the accounts of the receiver against the Fisher Body Company for the $2,714.85, placed $2,000 of this money in a special deposit, and on September 15, 1923, by petition advised the court below of the facts of the case and that he was informed and advised that the assignment of the accounts against Fisher Body Company was unauthorized, and prayed the direction of the court as to the disposition of the $2,000. In October, 1923, the bank intervened and claimed the $2,000. There was a final hearing, no controversy about the facts, and the court below was of the opinion that the bank was entitled to the $2,000, and ordered the receiver to pay it over to it. Mr. Butler, who attempted to assign as security for his borrowings the accounts of his cestuis que trust, the creditors and stockholders of the lumber company, was the receiver of a purely private business concern, not of a quasi public corporation such as a railroad company, and there is a broad distinction between the two classes. Wood v. Guarantee Trust Co., 128 U.S. 416, 9 S. Ct. 131, 32 L. Ed. 472. He was a receiver appointed by a federal court and not by a state court, and, in the absence of special authority, the general rule of the federal courts is that the powers of their receivers are very limited, and that they have no authority to borrow money, much less to pledge or mortgage all or specific parts of the property of their cestuis que trust in their possession as trustees to pay debts or to secure the repayment of money they borrow. Ordinarily the main purpose of the appointment of a receiver of a private business corporation or company is to prevent, not to promote, the borrowing of money upon its assets and the increase of the indebtedness secured thereon. Davis v. Gray, 16 Wall. 203, 218, 21 L. Ed. 447; Union Trust Co. v. Ill. Midland Ry. Co., 117 U.S. 434, 476, 477, 6 S. Ct. 809, 29 L. Ed. 963; Thompson v. Phenix Ins. Co., 136 U.S. 287, 10 S. Ct. 1019, 34 L. Ed. 408. Counsel for the bank cite, in support of the order below, Cake v. Mohun, 164 U.S. 311, 315, 17 S. Ct. 100, 101, 41 L. Ed. 447, and this quotation from the opinion in that case: "Admitting to its fullest extent the general proposition laid down by this court in Cowdrey v. Galveston, Houston, etc., R. Co., 93 U.S. 352, 23 L. Ed. 950, that a receiver has no authority, as such, to continue and carry on the business of which he is appointed receiver, there is a discretion on the part of the court to permit this to be done temporarily when the interests of the parties seem to require it. Under such circumstances, the power of the receiver to incur obligations for supplies and materials incidental to the business follows as a necessary incident to the receivership." But in that case the property was a hotel in operation. The receiver was ordered by 980 the court to carry on the business of running the hotel "in substantially the same manner as heretofore." The suit in which the receiver was appointed was for the foreclosure of the mortgage upon the hotel property. At the foreclosure sale Cake had bought the property and had given a bond to pay such amounts as should be found due the receiver on account of his expenditures and indebtedness as receiver. The case Mohun against Cake was a suit upon this bond, to recover an indebtedness incurred by the receiver in the operation of the hotel to which no objection had been made during the operation of the property and before the sale, and, under these circumstances, the Supreme Court permitted a recovery upon the bond for certain expenses of this nature. That ruling, however, is far from being applicable to the case in hand: First, because the authority to incur and pay for supplies and labor in carrying on a business does not include the power to borrow money to carry it on; second, because such authority does not empower a receiver to pledge as collateral security all or part of the property of his cestuis que trust to repay his borrowings; third, because, in that case, the method and limit of the receiver's authority to borrow money had not been expressly prescribed and fixed by the order of the court; and, fourth, in that case there was no attempt by the receiver to assign or pledge any of the assets of the cestuis que trust as security for the borrowings of the receiver, and in the case in hand the receiver, in the face of the precise order of the court, expressly limiting his authority to borrow, and in the face of the pledge as collateral security of 40 per cent. of the proceeds of the choses in action of his cestuis que trust to secure the certificates, attempted to assign the entire indebtedness of the Fisher Body Company to his cestuis que trust as collateral security to his unauthorized borrowing. The court below had the judicial power, after hearing or giving the parties in interest a chance to be heard, to authorize its receiver to borrow money in specific amounts and on specific terms and to secure the repayment of that money by a pledge or mortgage of some or all of the property of the lumber company, subject to prior liens. But the court's appointment of him as receiver, and its authority to him to operate the property of the lumber company, gave him no such power. The court, after admirable caution and deliberate consideration of the petition of the receiver for authority to borrow money, on the written consent of the great majority in number and amount of the unsecured creditors of the lumber company, empowered the receiver to borrow not exceeding $150,000 on his certificates of indebtedness secured, subject to prior mortgage and other liens, by all the property in the possession of the receiver and by 40 per cent. of the proceeds of the sales that the receiver should make of lumber, ties, and other forest products of the property in his hands. This order was an express grant of authority to the receiver to borrow money and give security for repayment by the method, on the terms, and to the amount there specified, and an equally expressed denial and prohibition of his borrowing money or securing its repayment in any other way or to any greater extent without the further order of the court. In re C. M. Burkhalter & Co. (D. C.) 182 F. 353, 355, 356; Haines v. Buckeye Wheel Co., 224 F. 289, 295, 296, 139 Cow. C. A. 525; Kirker v. Owings, 98 F. 499, 510, 39 Cow. C. A. 132; Gutterson et al. v. Lebanon Iron & Steel Co. (C. C.) 151 F. 72, 77. Mr. Butler was without lawful authority or power to borrow as receiver and to charge the property of his cestuis que trust, the lumber company, its creditors and stockholders, with liability to repay this $2,000 or to secure its repayment by a pledge or mortgage of any of their choses in action or any other property, and the order of the court below must be reversed. It is so ordered. SCOTT, District Judge (dissenting). I am constrained to dissent from the conclusion of the majority in this case. In my conception, the record does not merely present "the question of authority of a receiver without the order, direction, or knowledge of the court, whose instrumentality he was, to borrow the money to pay the liability he incurs as receiver, and to pledge the choses in action or other property of the corporation which he holds for its creditors and stockholders to secure the repayment of the money he borrows." I think the question presented is rather "whether a court of equity may not ratify the unauthorized act of its receiver (where his good faith is not questioned) in temporarily borrowing money to pay valid current bills, when to deny ratification would unjustly enrich the trust at the expense of an outsider." The receiver had been appointed and authorized to "operate and run all mills, stores, logging roads, railroads, and other property *981 of the company." In operating the business, which was extensive and varied, he had incurred certain current bills. Without special authority he borrowed $2,000 to meet these bills. It is stipulated in the record that the money borrowed "was deposited in the account of the receiver, and was used for the purchase of supplies and the payment of labor and bills and other expenses of the operation of the receivership." No question is raised as to the validity of any of these supply bills or labor bills or receiver's expenses. Had the receiver collected the sum due him from the Fisher Body Company, I think it clear that he might have applied the same to the payment of these bills. He did not make the collection, however, but, without special authority, temporarily borrowed $2,000 and attempted to pledge the Fisher Body Company account. Now it may be conceded in the circumstances that the bank from whom Rotzien borrowed the money at the instance of and for the receiver made the advance at its peril, and, in an action at law against the receiver, had it been permitted to sue, could not have recovered. It may be further conceded that upon application to the court having jurisdiction of the receivership, that court might in its discretion have denied relief, although it would in my opinion be the exercise of a hard discretion. But to say that a court of equity may not in its discretion ratify such act of the receiver is quite another question. The money borrowed clearly went to enrich the trust of the receiver; it liquidated valid claims at the expense of the bank, and in no way to the disadvantage of the receiver's trust. I cannot see that the fact that the court authorized the issue of receiver's certificates is at all material here. There is nothing in the record asserting or implying that the receiver at the time he borrowed the $2,000 exceeded the authorized limit of indebtedness, except as to the form of the transaction. But, even had he done so, he paid valid bills with the money, and performed an act which the court had ample power to authorize, had application been made in the first instance. The order of the court appealed from does not rest merely upon the petition of intervention of the bank, but rests also upon the petition of the receiver for instruction and direction in the matter. I think the District Court might well have made the order which it did sua sponte. For the reasons I have stated, the judgment of the trial court should be affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509779/	282 F. Supp. 819 (1968) UNITED STATES of America, Plaintiff, v. OLYMPIA PROVISION & BAKING CO., Inc. and Provision Salesmen & Distributors Union, Local 627, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Defendants. No. 62 Civ. 2031. United States District Court S. D. New York. April 5, 1968. 820 David H. Harris, Irving Kagan, Attys., Antitrust Division, U. S. Dept. of Justice, New York City, for plaintiff. Waldman & Waldman, New York City, for defendant Provision Salesmen & Distributors Union, Local 627, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO; Seymour M. Waldman, Paul R. Waldman, New York City, of counsel. LaPorte & Meyers[a], New York City, for defendant Superior Frankfurter, Inc.; Ernest S. Meyers, Jules E. Yarnell, New York City, of counsel. Feldman, Kramer, Bam & Nessen[b], New York City, for defendant Sabrett Food Products Corp.; Arthur B. Kramer, New York City, of counsel. OPINION, FINDINGS of FACT and CONCLUSIONS of LAW LEVET, District Judge. This civil antitrust action originally named two other defendants, to wit, Sabrett Food Products Corp. and Superior Frankfurter, Inc. However, the action as against said defendants was severed by order made orally in open court on 821 November 8, 1967. Subsequently, a consent decree as to each of said defendants was signed and entered on December 18, 1967. Olympia Provision & Baking Co., Inc. ("Olympia") defaulted upon call of the case for trial; said default was duly ordered on November 8, 1967 and at that time said defendant waived any further notice under Rule 55, F.R. Civ.P. (4, 5[1]; Court's Ex. 1) The case then proceeded to trial against said defaulting defendant Olympia and against the above-mentioned union (hereinafter designated as "Local 627"). The general nature of this action is described by plaintiff as follows: "The Complaint, filed June 7, 1962, alleges that the defendants entered into a combination and conspiracy to restrain and monopolize interstate trade and commerce in violation of Sections 1 and 2 of the Sherman Act. The substantial terms of said combination and conspiracy were that, since at least 1949, the defendants and co-conspirators combined and conspired to fix and maintain prices, terms, and conditions of sale of frankfurters, to allocate customers and to boycott distributors not members of Local 627." The case was tried before the court without a jury. After hearing the testimony of the parties, examining the exhibits, the pleadings and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Local 627 is a voluntary association with its principal office located at 27 Union Square, New York, N. Y. From 1949 to approximately 1960 it maintained offices at 799 Broadway, New York, N. Y. It is a labor organization duly chartered by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. 2. The membership of Local 627 is composed, in part, of persons known as distributors, who are also known as agent-distributors and agent drivers. From 1956 through 1962, Local 627 had approximately 2,000 members. Membership included approximately 300 persons employed as drivers, approximately 1,300 persons employed as salesmen-drivers or salesmen-distributors, and approximately 350 distributors, of whom less than 30 bought and resold the products of Sabrett Food Products Corp., Olympia Provision & Baking Co., Inc. and Superior Frankfurter, Inc. (1470, 1475-1476; Pl. Ex. 243, p. 47) 3. The following distributors have been members of Local 627 during all or part of the period from 1949 to 1962: Charles Alfano, Gus Avezidas, Joe Banner, M. Berger, Jordan Feinberg, Seymour Feinstein, Benjamin Goodman, Franklin B. Goodman, Ben Grupper, George Harris, Louis Kantrowitz, Charles Katcher, Ed Kaufman, John Lexis, Frank Masset, Fred Miller, Louis Pagliuca, Rocco Pagnotta, James Papalexis, Gus Pappas, John Passas, James Rinbis, William Schlesinger. (30-31; Pl.Ex. 242) 4. Morris Horn has served as Business Manager of Local 627 continuously from 1940 to 1962, having been elected to this office by the membership of Local 627 every three years; in 1962, when the title of this office was changed to Secretary-Treasurer, he was elected as Secretary-Treasurer and has served as such since. (Pl.Ex. 243, p. 5; 561-566) Horn, from 1940, has served as the chief executive officer of Local 627. (565-566) Rudolph Block, from 1949 to 1957, Milton Hyman, from 1949 to approximately 1962, and Isidore Jaffe, from 1949 to approximately 1962, were officers, agents or employees of Local 627. Estelle Gilman was employed by Local 627 as Office Manager from 1948 through 1962. (637-638) 5. Local 627 has, since at least 1949, operated, through trustees appointed by 822 it, a separate trust fund for welfare benefits for its members, known as the Provision Salesmen & Distributors Union, Local 627, Welfare Trust Fund ("Welfare Fund"). The Board of Trustees consists of nine members, almost all of whom are members of Local 627's Executive Board. (29, 641-643, 649-651) 6. By agreement with Local 627, Sabrett, Olympia and Superior made regular and continuous payments to this Welfare Fund until at least 1962. (29-30, 36, 609, 629-630, 632-645, 878, 880-881, 928-931, 1034-1035, 1057, 1061-1062; Pl.Ex. 243, pp. 42-43; Pl.Exs. 10, 11, 12) 7. Sabrett is a corporation organized and existing under the laws of the State of New Jersey and has its principal place of business in Jersey City, New Jersey. Sabrett, since 1949, has manufactured frankfurters in Jersey City, New Jersey, and also since 1949 has sold and distributed frankfurters in the State of New York, including the Southern District of New York. 8. Ferdinand Frankel was Vice-President of Sabrett from 1948 until approximately 1957. Julius Frankel has been an officer of Sabrett since approximately 1956. Gori L. Cafora was employed by Sabrett as Sales Manager from approximately 1944 to approximately 1964. 9. Superior is a corporation organized and existing under the laws of the State of New York and it had its principal place of business in the Bronx, New York. Superior, commencing at least in 1949, manufactured, sold and distributed frankfurters in the State of New York, including the Southern District of New York. Superior ceased to do business in about 1964, the corporation has been dissolved; its plant was demolished. (1094, 1095) 10. Harry Gilman was President of Superior since approximately 1949. Harry Staub was Secretary-Treasurer of Superior from 1947 until 1962. 11. Olympia is a corporation organized and existing under the laws of the State of New York, and, during the period from 1949 to approximately 1962, it had its principal place of business in the Bronx, New York. From 1949 to approximately 1962, Olympia manufactured, sold and distributed frankfurters and transacted business in the State of New York, including the Southern District of New York. Olympia is no longer under operation; it sold its plant to a division of Zion Foods about 1961 or 1962 and apparently has not since manufactured or sold frankfurters. (942-943) 12. Christ Papalexis was President of Olympia from 1946 to 1957. Gregory Papalexis was General Manager of Olympia from 1946 to 1957. 13. From 1949 to 1962, Sabrett, Olympia and Superior manufactured, sold and distributed frankfurters to house account customers which consisted primarily of refreshment stands, luncheonettes and street vendors and to distributors who resold such frankfurters to the same types of customers. (35, 44, 105-107, 180-181, 424, 426-427, 433, 541, 553, 555-556, 654-655, 659, 714, 717, 719, 793, 820-821, 853-857, 994-996, 1029-1031, 1038-1039, 1159-1161, 1168, 1206, 1210, 1213, 1216-1218, 1348-1358, 1384-1389; Pl.Ex. 261, pp. 6-14) 14. Sabrett, Olympia and Superior from 1949 until at least 1962 were engaged in interstate and foreign commerce in the manufacture, sale and distribution of frankfurters, and the amount of such commerce was substantial. (34, 82, 488, 543-544, 717-719, 739, 798, 847-850, 1026-1030, 1153, 1168, 1205-1219, 1348-1349) 15. Part of the frankfurters manufactured by Sabrett, Superior and Olympia were delivered in the metropolitan New York area by salesmen, also known as "house drivers." (853-857, 1032, 1212, 1213) 16. The Sabrett, Olympia and Superior salesmen delivered frankfurters by truck to customers or "stops" on their route such customers being billed by their respective employer and known as "house accounts." The salesmen received as compensation a base salary 823 and a percentage commission based on the gross selling price of the products delivered by them. (856-857, 980-981, 1032, 1191-1193) 17. Sabrett salesmen were charged out for the frankfurters they picked up daily at the Sabrett plant and were responsible for either the return of the merchandise or the moneys received from customers. Salesmen were not responsible for bad debts of the customers unless they had extended credit in disregard of specific instructions of their employer. (1160-1163, 1174-1175, 1181, 1188, 1368-1376) 18. During the years 1956 to 1962, Sabrett salesmen operated only in the State of New York, and they are members of the International Brotherhood of Teamsters. In New Jersey, frankfurters manufactured by Sabrett were distributed exclusively by non-union distributors. (1218-1222) 19. The Olympia and Superior salesmen were members of Local 802, International Brotherhood of Teamsters, and the terms and conditions of their employment were set forth in written collective bargaining agreements between Local 802 and their respective employer. (852-853, 1032, 1081) 20. With the exception of those nonunion Sabrett distributors which operated in New Jersey, distributors for Sabrett, Olympia and Superior were members of Local 627. (922, 1031-1032, 1280-1281) 21. The distributors picked up frankfurters daily at the manufacturers' plants and, using their own or rented trucks, they delivered the frankfurters to customers on their routes. Frankfurters distributed in this manner were charged out daily, and the distributors were billed weekly by the manufacturers. (231-234, 707, 709, 718, 748-749, 937-938, 1033) 22. Originally, when distributors of Sabrett, Superior and Olympia frankfurters began operations as such, all drove their own trucks and performed all the labor necessary (50, 342-343); most of the operators continued to operate without employees or helpers. (18, 706-708, 740-741, 749, 1398; DU Ex. 116, p. 31) 23. In the 1950's, a few distributors initiated or acquired additional routes and, in some instances, formed partnerships or corporations which employed drivers. These distributors entered into collective bargaining contracts with Local 627 which covered their employees. (50, 57, 74-79, 367, 413-414, 422, 429, 431-432, 489-491, 518, 992-994, 1385-1386; DU Ex. 115) 24. Occasionally, distributors delivered frankfurters to certain house accounts of the manufacturers. Such distributors received as compensation a credit or commission computed on the basis of the poundage delivered; and, in the case of Sabrett, some house accounts were serviced by distributors for a flat weekly compensation. (47-48, 69, 343, 364-366, 751, 938, 1035-1036, 1076, 1219, 1318-1319, 1403-1404) 25. Sabrett, Superior and Olympia accepted telephone orders from distributors' customers, communicated such orders to distributors without charge. (371, 756, 1036-1037, 1403; DU Ex. 116, pp. 32-33) 26. If a distributor was out delivering frankfurters and a customer called in with an order to be filled that day, the manufacturer, as an accommodation, would have delivery made to the customer by a house driver. The distributor was charged only for the actual merchandise, not for any cost of delivery. (1079-1080) 27. Certain Sabrett, Superior and Olympia distributors billed on company letterheads and received checks made out to the company which they gave the company in payment for merchandise distributed by them. Sabrett house drivers also had stops which they billed and for the collection of which they were responsible. (659-661, 667-668, 740, 757, 761, 1396-1397; DU Ex. 116, p. 33) 28. When a distributor was ill or incapacitated, the supplier would usually have his route serviced by a house driver as an accommodation, without cost to 824 the distributor. Lists of distributors' customers were kept for this purpose. (756, 1037, 1317) 29. In at least one instance, Sabrett furnished a distributor with free uniforms and cleaning service. (770-771) 30. In at least one instance, Sabrett refused to deal with a distributor who owed the company money for merchandise billed to him. (837-841) 31. The distributors operated as individuals, partnerships or corporations. (51, 74-75, 175, 180, 422-423, 427, 664-665, 739, 1384) 32. The distributors purchased frankfurters from the manufacturers for resale to the distributors' own customers and for the distributors' own account and profit. (36, 44-46, 55, 59-60, 67-71, 105, 179, 182, 187-188, 206, 426-427, 429-430, 433, 659-663, 668-671, 699, 709, 716-717, 719, 740, 794-795, 1033, 1251, 1321, 1392-1393, 1395-1398, 1416-1417, 1548; Pl.Ex. 261, pp. 8-9) 33. The distributors purchased products, such as mustard and condiments from sources other than the frankfurter manufacturers for resale to their own customers for their own account and profit. (72, 181, 230, 433-434, 717) 34. The distributors declared income from the conduct of their businesses and paid federal, state and local taxes thereon as self-employed individuals or as partnerships or corporations. (52, 64, 189, 547-548, 663, 671-672, 739; Pl.Exs. 244, 245) 35. The distributors did not receive a wage or salary from the manufacturers with whom they dealt nor were any taxes withheld by the manufacturers on their behalf. (35-36, 1164-1166) 36. The distributors purchased frankfurters from more than one manufacturer and occasionally changed manufacturers. (164, 180-181, 376-377, 880, 1018-1019, 1323-1324, 1352-1358, 1390, 1396; Pl.Ex. 261, pp. 12-13) 37. The distributors owned or leased the trucks used in the conduct of their businesses and paid all expenses in connection with the maintenance and operation thereof. (44, 56, 70, 76, 106, 180-181, 188, 428-429, 659, 672, 713, 794, 1034, 1410) 38. The distributors established their own prices with their own customers. (68-70, 208-209, 231, 236-237, 518-519, 1321-1323) They also established the terms and conditions of sale with their own customers and suffered almost all bad-debt losses incurred in such sales to their own customers. (49-50, 68, 182, 695, 708, 742, 796, 1416) 39. The distributors determined their own hours and days of work, consistent with the needs and demands of their own customers. (37, 58-59, 80-81, 187, 235-236, 518, 695, 741, 797, 1033-1034, 1399) 40. The distributors purchased and sold their customer routes, which included substantial goodwill. (50-51, 79, 106, 177-178, 186, 657-658, 713, 716, 1386, 1409-1410, 1412) 41. As an accommodation to the distributors, the suppliers allowed return of defective or unsold frankfurters for credit. In practice, however, much unsold merchandise was retained by the distributors in their refrigerated trucks for future sales. (371, 708-709, 768, 1078, 1380-1381, 1395-1396, 1417-1420; DU Ex. 116, p. 34) 42. Except for the fact that Sabrett reserved for itself, as a matter of policy, the right to observe the operations of a distributor and approve the qualifications of a distributor who might succeed to the route of an existing distributor, the distributors were not under the dominion, direction or control of their suppliers in the conduct of their business operations. (36, 58-59, 80-81, 105, 189, 421, 695, 702-703, 709, 741, 755-756, 797, 821, 1033-1034, 1307-1308, 1314, 1323-1324, 1333-1334, 1347, 1377-1379) 43. The distributors are not employees of the frankfurter manufacturers. They are independent businessmen who contracted with their customer accounts to supply goods. 44. In or about 1946, membership in Local 627 was sought by the distributors, 825 whose primary goal was to attain larger profits. The distributors were not solicited by the union (574-578), and at that time there were no other frankfurter distributors in Local 627. (583-584) 45. During the period between 1940 and 1946, the union leadership had no information whatever that any operation of the frankfurter distributors was affecting the welfare of the other members of Local 627. (584) 46. The frankfurter manufacturers' use of distributors, during the period immediately preceding the time the distributors jointed Local 627, had no adverse effect upon the wages and working conditions of their employee-drivers, or in any way represented an attempt to evade the union wage scales of such employees. 47. Some degree of competition for customer accounts existed between distributors who purchased frankfurters primarily from one manufacturer and those who purchased from other manufacturers. In addition, the distributors occasionally gained and lost customer accounts to and from manufacturers, other than their own, who serviced customers through salaried house drivers. (190-194, 199, 202-211, 236-238, 302-306, 317, 385-390, 409, 538-543, 553-556, 750, 772-778, 1399) 48. At times, for convenience and efficiency, the manufacturers turned over routes and customer accounts to distributors (43, 334-337, 355-356, 361, 750, 793-794, 820-821, 1256-1257, 1315-1316, 1350-1352, 1387-1394); and occasionally, customers of the distributors were turned over to the manufacturers for servicing as house accounts. (767, 1308-1314) 49. The frankfurter manufacturers never attempted to set their employee-drivers and distributors against one another for the purpose of affecting the wages or working conditions of either group at any time during the period in question. 50. Wages of the house drivers employed by frankfurter manufacturers were periodically increased during the period between 1946 and 1962 (415, 1036-1037, 1082, 1222; DU Ex. 115); but such wage increases were not related in any manner whatever to the activities of local 627 on behalf of the distributors. 51. The proof is clear that there was no legitimate labor objective served through the membership of the distributors in Local 627. 52. Commencing in 1949, when the distributors sought and received admission to membership in Local 627, the distributors conspired among themselves and with Morris Horn of the union to secure from the manufacturers increases in the discounts allowed. Between 1949 and 1956 the minimum discount to the Sabrett, Superior and Olympia distributors was increased, in many instances, to at least 5¢ per pound. (38, 134, 165, 251-259, 260-262, 274, 461, 510-513, 560, 808, 819-820, 874, 881-882, 1040-1042, 1046, 1129-1132, 1143-1144, 1445-1449; Pl.Ex. 243, pp. 62-63; Pl.Ex. 261, pp. 47-48) 53. In or about August 1956, the distributors together with Morris Horn conspired and successfully obtained a further minimum discount from the manufacturers, which raised the minimum discount for all distributors to 8¢ per pound. (37-38, 165-167, 174, 262-268, 271-277, 394-395, 452-456, 459-463, 466, 477-479, 486, 493, 551-552, 614-625, 724-730, 732-735, 737, 798-803, 808-809, 819-820, 843-844, 881-911, 959-963, 1067, 1101, 1506-1508; Pl.Exs. 3, 4, 16, 17, 189, 190, 192, 193, 220; Pl.Ex. 243, pp. 33-34, 53-57) 54. In connection with the increased discount concession which was extracted in 1956, Local 627, represented by Horn, conspired with Sabrett, Superior and Olympia, whereby it was agreed that each manufacturer would increase its list selling price by 5¢ per pound. Subsequently, in furtherance of this conspiracy, the list selling prices of such manufacturers were so increased. (277-279, 719-736, 808-809, 819-820, 890-911, 961-962; Pl.Exs. 4, 16, 17, 24; Pl.Ex. 261, pp. 48-60) 826 55. During the period from 1949 to 1962, Local 627 and its distributor-members doing business with Sabrett, Olympia and Superior conspired and attempted to obtain an agreement with such manufacturers pursuant to which the manufacturers would boycott and refuse to deal with non-union distributors. Their efforts in this endeavor were largely successful. (30-31, 36-38, 95, 108-109, 425, 606-607, 672-680, 719, 720, 795, 855-856, 868, 871, 874, 922-928, 948-949, 1002-1008, 1011-1012, 1029-1032, 1159-1160, 1210-1211, 1280-1283, 1476, 1496-1497, 1546-1547; Pl.Exs. 10, 11, 12, 242; Pl.Ex. 243, pp. 47-48, 62; Pl.Ex. 261, pp. 11-13, 18-19) 56. At all relevant times Local 627 had knowledge of and acquiesced in the acts of its members and agents, and participated in the conspiracy herein. (134, 138-141, 149-152, 165-167, 169-172, 174, 252-259, 262-265, 275-277, 290-294, 296-298, 300-302, 318-324, 388, 407-409, 448, 452-456, 464, 467-471, 477-479, 481-482, 510-513, 535-538, 561-567, 624, 639-643, 723-730, 732, 798-802, 808-815, 825, 843-844, 862-871, 873-876, 878, 880-911, 922-931, 935-936, 946-947, 955-956, 959-963, 970-973, 1002-1008, 1018-1022, 1049-1062, 1132-1133, 1137, 1143-1144, 1278-1280, 1282, 1337-1341, 1367, 1383, 1414-1416, 1445-1459, 1461, 1463, 1465, 1474-1476, 1492-1496, 1502-1504, 1506-1508; Pl.Ex. 243, pp. 3-5, 21-30, 33-34, 42-44, 49-54, 56-57, 62, 71-73; Pl.Ex. 261, pp. 19-21, 34-35, 38-44, 48-54, 60-63, 165, 175, 177, 179-180; Pl.Exs. 3, 5, 10, 11, 12) 57. Plaintiff has not shown by a fair preponderance of the credible evidence that any agreement among the various distributors or among the distributors, Local 627 and the manufacturers existed to the effect that customers could be allocated among the various parties in return for promises not to compete. DISCUSSION A. THE LABOR EXEMPTION In general, the first and second sections of the Sherman Act embrace " * * every conceivable act which could possibily come within the spirit or purpose of the prohibitions of the law, without regard to the garb in which such acts were clothed." United States v. American Tobacco Co., 221 U.S. 106, 181, 31 S. Ct. 632, 648, 55 L. Ed. 663 (1911). From this broadbased coverage, Congress has carved exceptions. 15 U.S.C. § 17 states, in substance: "The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor * * organizations, * * * or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof * * ." As early as 1921, however, it was recognized that this section of the antitrust law gave labor no grant of a blanket exemption from the Sherman Act. In Duplex Printing Press v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349 (1921), the Supreme Court ruled that labor organizations could not escape antitrust prohibitions " * * where [unions] depart from * * * normal and legitimate objects * * ." 254 U.S. at 469, 41 S.Ct. at 177. See also United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965). Recently, in an extensive and scholarly opinion, which takes into account the manifold developments affecting the nature and extent of labor's antitrust exemption since its inception, Judge Wilson summarized that: " * * a labor union is exempt from the operation of the federal antitrust laws provided that it acts unilaterally, in the pursuit of its own self-interests rather than in combination or conspiracy with non-labor groups and provided further that its activities be in furtherance of a subject matter of immediate and legitimate union concern, such as wages, hours and working conditions, and not in furtherance of matters which are only 827 of indirect concern to the union, such as prices and other marketing factors." Ramsey v. United Mine Workers of America, 265 F. Supp. 388, 398 (E.D.Tenn.1967). Thus, at the outset, the applicability of labor's antitrust exemption to Local 627's activities on behalf of its distributor-members is at issue, and, based upon the clear proof adduced, I conclude that the defendant's acts are not exempt. The distributors represented by Local 627 are independent businessmen who contracted both with their own customers and with the manufacturers to purchase and supply merchandise. The distributors are not employees of the manufacturers. To distinguish independent contractors from employees, the "usual test * * is found in the nature and the amount of control reserved by the person for whom the work is done." Taylor v. Local No. 7, International Union of Journeymen Horseshoers, 353 F.2d 593, 596 (4th Cir. 1965), cert. denied, 384 U.S. 969, 86 S. Ct. 1859, 16 L. Ed. 2d 681 (1966); see also Singer Manufacturing Co. v. Rahn, 132 U.S. 518, 10 S. Ct. 175, 33 L. Ed. 440 (1889). Furthermore, even complete control over desired results may be insufficient to transform independent contractors into employees. "* * * an employer has a right to exercise such control over an independent contractor as is necessary to secure the performance of the contract according to its terms, in order to accomplish the results contemplated by the parties in making the contract, without thereby creating such contractor an employee." N. L. R. B. v. Steinberg, 182 F.2d 850, 856-857 (5th Cir. 1950). The question of whether control exists sufficient to characterize contractors as employees must be decided upon the particular facts of each case and no one fact is determinative; "the `totality of the circumstances must be considered.'" Taylor v. Local No. 7, supra at 596; N. L. R. B. v. A. S. Abell Co., 327 F.2d 1, 5 (4th Cir. 1964). By reason of the facts appearing in Findings 21 through 43, the proof is clear that the distributor-members of Local 627 are properly characterized as independent contractors rather than employees of the manufacturers. Those instances in which the manufacturers may have given some aid to the distributors or exerted some control over distributors' actions do not overcome the effect of the overwhelming evidence which illustrates the distributors' independent status. That the distributor-members of Local 627 were independent contractors rather than employees does not, standing alone, remove the actions of the defendant-union from the protective shield of labor's antitrust exemption. See, e. g., Milk Wagon Drivers' Union, Local No. 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 61 S. Ct. 122, 85 L. Ed. 63 (1940). However, since a fundamental conflict exists between the policies which underlie labor and anti-trust legislation, the activities of labor organizations on behalf of those of their members who have the status of independent contractors must be closely scrutinized before antitrust exemption may properly be allowed. Only where union-imposed restraints upon the labor market directly yield immediate benefits to the legitimate interests of labor organizations, and where the relative impact upon the product market is indirect and consequential, have such activities been protected. In these cases, an implicit balancing of interests has permitted the effectuation of labor policies without doing violence to antitrust considerations. See Pevely Dairy Co. v. Milk Wagon Drivers, 174 F. Supp. 229 (E.D.Mo.1959), appeal dismissed, 283 F.2d 519 (8th Cir. 1960); Local 24, Internat'l Teamsters etc., v. Oliver, 358 U.S. 283, 79 S. Ct. 297, 3 L. Ed. 2d 312 (1959); Milk Wagon Drivers' Union v. Lake Valley Farm Products, Inc., supra; cf. Local 189 v. Jewel 828 Tea Co., Inc., 381 U.S. 676, 85 S. Ct. 1596, 14 L. Ed. 2d 640 (1965). On the other hand, where union activities have been aimed directly at commercial competition (such as price fixing or boycotts) antitrust considerations have prevailed despite the labor interests sought to be protected or advanced thereby. See Los Angeles Meat Drivers v. United States, 371 U.S. 94, 83 S. Ct. 162, 9 L. Ed. 2d 150 (1962); Columbia River Packers v. Hinton, 315 U.S. 143, 62 S. Ct. 520, 86 L. Ed. 750 (1942); cf. United Mine Workers v. Pennington, supra. Furthermore, agreements between unions and a non-labor organization for anti-competitive purposes need not be explicit but may be inferred from activities and surrounding circumstances when there is clear proof of union participation or authorization. United States v. Fish Smokers Trade Council, Inc., 183 F. Supp. 227 (S.D.N.Y.1960); United States v. Milk Drivers Union, 153 F. Supp. 803 (D.Minn.1957). In the present case, defendant-union's activities on behalf of its distributor-members were not in furtherance of any legitimate labor interests or objectives. The distributors, acting as independent contractors, sought admission to Local 627 for their own purposes, and the sole interest served by the union was that of this group of independent businessmen. (Findings of Fact 44 through 51) Absent the justification of a legitimate labor objective, defendant-union's activities which were aimed directly at commercial competition are not immune from antitrust liability. B. ANTITRUST VIOLATIONS It is elementary that price-fixing is illegal per se, United States v. General Motors Corp., 384 U.S. 127, 86 S. Ct. 1321, 16 L. Ed. 2d 415 (1966); United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940); United States v. Trenton Potteries Co., 273 U.S. 392, 47 S. Ct. 377, 71 L. Ed. 700 (1927). Effect, rather than form, is the determining element. United States v. Socony-Vacuum Oil Co., Inc., supra; Plymouth Dealers' Ass'n v. United States, 279 F.2d 128 (9th Cir. 1960). The uniform minimum discounts and the increases of same which defendant union secured for its distributor-members (Findings of Fact 52, 53) constituted illegal price fixing under the circumstances herein. Such discounts fixed the price paid the manufacturers by the distributors and this, in turn, bore directly upon the ultimate prices paid by consumers. Indeed, the increases in distributor discounts were followed quickly by increased retail prices. (Finding of Fact 54) Further, the evidence is clear that Horn, acting as an agent of defendant-union, conspired with the manufacturers and participated in a scheme whereby it was agreed that retail prices would be uniformly increased to compensate for increases negotiated for the distributors' discounts. (Finding of Fact 54) It also is elementary that boycotts and attempted boycotts are illegal. United States v. General Motors Corp., supra; Klor's Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S. Ct. 705, 3 L. Ed. 2d 741 (1959); Fashion Originators Guild of America v. F. T. C., 312 U.S. 457, 61 S. Ct. 703, 85 L. Ed. 949 (1941). Thus, defendant-union's largely successful attempts to enforce agreements with the manufacturers to the effect that only members in good standing of Local 627 should be allowed to distribute frankfurters are illegal under the circumstances herein. (See Finding of Fact 55) Defendant-union had knowledge of, acquiesced and participated in all illegal acts of its members, employees and agents. (Finding of Fact 56) Explicit authority to the union's agents and officials need not be granted; such agency 829 may be implied. 2 C.J.S. Agency § 23, pp. 1045-1050. In conclusion, the proof is clear that antitrust liability must attach to defendant-union for the reasons stated. CONCLUSIONS OF LAW 1. The court has jurisdiction of this cause and of the defendants herein under the provisions of the Act of July 2, 1890, commonly known as the Sherman Act (15 U.S.C. §§ 1, 2). 2. The distributors herein are independent contractors. 3. The activities of defendant-union on behalf of its distributor-members served no legitimate labor objective. 4. The activities of defendant-union on behalf of its distributor-members are not exempt from the antitrust prohibitions of the Sherman Act (15 U.S.C. §§ 1 and 2). 5. Beginning at least as early as 1949 and continuing thereafter until at least 1962, Sabrett, Olympia, Superior, Local 627 and the distributor-members thereof who dealt with Sabrett, Olympia and Superior combined and conspired to restrain and monopolize the manufacture, sale and distribution of frankfurters by means of price fixing and boycott agreements in violation of Sections 1 and 2 of the Sherman Act. 6. Local 627 had knowledge of and acquiesced in all of the aforementioned acts of its officers, agents, employees and members and participated in the agreements and understandings entered into herein. 7. Plaintiff is entitled to equitable relief enjoining defendant Local 627 and the defaulting defendant Olympia from violations of Sections 1 and 2 of the Sherman Act and such additional relief as may be appropriate in accord with the determination herein, together with costs. Settle judgment on notice. NOTES [a] Appearance only for the purpose of severance of defendant Superior Frankfurter, Inc. [b] Appearance only for the purpose of severance of defendant Sabrett Food Products Corp. [1] Unless otherwise designated, numbers in parentheses refer to pages in the stenographer's minutes of the trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509474/	113 F.2d 627 (1940) HOUGHTON MIFFLIN CO. v. STACKPOLE SONS, Inc., et al. No. 341. Circuit Court of Appeals, Second Circuit. July 17, 1940. *628 Philip Wittenberg, of New York City, for appellants. Hines, Rearick, Dorr & Hammond, of New York City (Archie O. Dawson, of New York City, of counsel), for appellee. Before L. HAND, CHASE, and PATTERSON, Circuit Judges. PER CURIAM. This court affirmed a temporary injunction in this case (Houghton Mifflin Co. v. Stackpole Sons, Inc., 2 Cir., 104 F.2d 306), and the Supreme Court denied certiorari (308 U.S. 597, 60 S. Ct. 131, 84 L. Ed. ___). Thereupon, the plaintiff moved for summary judgment upon affidavits under Rule 56, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which the judge granted; the defendants appeal. Our earlier opinion states the general situation in detail, and we need not repeat what we said. The only question before us now is whether there is any issue, relevant to the merits of the case, which deserved trial. We have already decided that a person who was neither citizen nor subject of any government could take out a copyright. Therefore, the citizenship of Adolph Hitler is not a material issue; nor is it of the least consequence that the complaint alleged that he was a citizen of a state with whom the United States had reciprocal relations. The authorship of the both volumes of "Mein Kampf" is beyond dispute; indeed, we understand that it is conceded. The next issue is whether the German publisher had title to the literary property in the work. We held so before, thinking that it was proved well enough by the fact that the same house had published the original German edition of 1925 and 1927, and had copyrighted it in the United States. This is the edition which the defendant, Stackpole & Sons, used for the infringing translation. It is possible that before January, 1933, a German publisher might have made unauthorized use of the manuscript of "Mein Kampf"; but we held before, and we hold now, that, considering the author's power and position in Germany after that time, it would be unreasonable to suppose that anyone would have been allowed to do so. If then this publisher did in fact assume to assign its copyright in July, 1933, in accordance with the purported assignment attached to the complaint, we think that the plaintiff made out a case even for summary judgment. If it were possible to try out the issue of the German publisher's title in the ordinary way, more could be said for a trial, but of course it is not. No further light can be thrown upon it, and we should be in precisely the same position after a trial as at present. That is not true, however, of the execution of the assignment of July 29, 1933. We have passed upon its legal effect, and upon its validity in spite of the absence of the consular certificate required by § 43, Title 17, U.S. Code, 17 U.S.C.A. § 43; but we did not finally pass upon its execution; that is to say, upon the identity of the person who signed it and his authority to act for the German publisher. The fact that we held the prima facie proof of this sufficient for a temporary injunction is not conclusive. Ordinarily, it is true, the plaintiff must establish his title without dispute, but we had to choose between a denial of any real relief at all and accepting the case as made. The more recent authorities in copyright hold that a prima facie case will serve, if justice demands. American Code Co. v. Bensinger, 2 Cir., 282 F. 829, 835; Houghton Mifflin Co. v. Stackpole Sons, supra, 104 F.2d 306, 307. The plaintiff does not suggest that no witnesses to the execution of the assignment are available; it was a party to the transaction; presumably it has access to the evidence; certainly the defendants have not. We do not think that they should be made to accept the very general conclusions of the plaintiff's affidavits. It should produce its evidence in the regular way, and submit its witnesses to cross-examination. As to the failure to deposit two copies of the second volume, that will be important only upon the issue of damages, if it will be then. The defendants' edition being in one volume must be enjoined in any event. We can see no conceivable reason why Rule 56 should not apply to copyright injunctions. Therefore, if the defendants wish a trial upon the single issue of the execution of the assignment of Franz Eher Nachfolger G.m.b.H. to the plaintiff, they may have it. The judgment will be reversed so far; meanwhile the temporary injunction will remain in force. Judgment modified in accordance with the foregoing.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509616/	7 F.2d 972 (1925) DUNKLEY CO. v. CENTRAL CALIFORNIA CANNERIES et al. No. 4478. Circuit Court of Appeals, Ninth Circuit. September 14, 1925. Rehearing Denied October 19, 1925. 973 Fred L. Chappell, of Kalamazoo, Mich., and W. A. Richardson, of San Francisco, Cal., for appellant. Pillsbury, Madison & Sutro, of San Francisco, Cal., and Frederick S. Lyon, of Los Angeles, Cal., for appellees Central California Canneries Company, Griffin & Skelley Company, and Sunlit Fruit Company. Kemper Campbell, of Los Angeles, Cal., for appellees Ainsley Packing Company, Anderson-Barngrover Manufacturing Company, Golden Gate Packing Company, J. F. Pyle & Son, Inc., and Hunt Bros. Company. Before HUNT, MORROW, and McCAMANT, Circuit Judges. McCAMANT, Circuit Judge. The points at issue between the parties have chiefly to do with the scope of plaintiff's patent, the effect of the litigation in which its validity was adjudged, and the extent of the master's authority in passing on the questions in dispute. In plaintiff's machine the peaches are subjected to a bath in a hot solution of lye for the purpose of disintegrating the skin. They are then delivered to a conveyor, on which they pass between rotary brushes, which turn the peaches so that each peach is subjected to forcible jets of water, which wash off the disintegrated skin. Plaintiff's patent has been before the courts a number of times. There was an interference proceeding in the Patent Office, which found its way to the Court of Appeals for the District of Columbia, where the decision awarded priority to plaintiff's assignor. Dunkley v. Beekhuis, 39 Ohio App. D. C. 494, 499. The patent came before this court on appeal from the interlocutory decree in the case at bar. Judge Van Fleet was affirmed. Central California Canneries v. Dunkley Co., 247 F. 790, 159 Cow. C. A. 648. Plaintiff also brought suit against Pasedena Canning Company et al. in the District Court for the Southern District of California, Southern Division. This case was determined by Judge Trippet in an opinion reported in 261 F. 203. He held plaintiff's patent void because of anticipation, and he also held that defendants' machine, known as the Pasadena washer, was not an infringement. An appeal was taken from Judge Trippet's decree, and the appeal was determined by an opinion written by Judge Rudkin. 261 F. 386. This court did not find it necessary to pass on so much of the decision of the lower court as held the Dunkley patent void for anticipation. In the light of the evidence presented by that record, it was held that "the Dunkley patents must be limited to the particular means employed, and those means must be limited to directing peeling jets of water upon the fruit as described in the patent." With the Dunkley patent so limited, it was held that the Pasadena washer did not infringe. In the meantime plaintiff had brought suit against California Packing Corporation in 974 the District Court for the Southern District of New York. This case was disposed of by an opinion of Judge Augustus N. Hand. 277 F. 989. He held that the defendant was within the protection of a license given by plaintiff to defendant's assignor; also that plaintiff's patent was void for anticipation. The decree was affirmed by the Circuit Court of Appeals for the Second Circuit on the former ground, the court finding it unnecessary to pass on the validity of plaintiff's patent. 277 F. 996. After Judge Trippet's decision was rendered, defendants moved in the District Court in the case at bar asking that court to request this court to withdraw its mandate of affirmance and to remit the litigation to the District Court for the purpose of receiving additional testimony. Judge Van Fleet handed down an opinion denying this motion. 277 F. 1001. An appeal from this ruling was prosecuted to this court, and the appeal was dismissed. In connection with this appeal defendants filed in this court motions for leave to file in the District Court bills in the nature of bills of review. In passing on these motions Judge Morrow, speaking for this court, reviewed the entire litigation, emphasizing the fact that by a prior decision of this court "the Dunkley invention was limited to the particular means employed." The motions for leave to file bills in the nature of bills of review were denied, but the defendants were "authorized to file in the lower court an appropriate petition for a rehearing," and the District Court was "authorized to entertain and make disposition of the same, according to equity, upon considerations addressed to the materiality of the new matter and diligence in its presentation, without restraint by reason of any proceedings heretofore had or orders made in this court." 282 F. 406. In accordance with the authority so given, a motion to reopen the case was filed by the defendants in the District Court, and denied at a date subsequent to the final decision of the case in the District Court, though prior to the entry of the decree from which plaintiff appeals. On the original trial of the case at bar the defendants stipulated that they had either used or made a type of apparatus shown by drawings designated as Exhibits A and B. The question actually litigated was not whether these machines were infringements, but whether plaintiff's patent was void because of anticipation. We think the following conclusions were binding on the master and the parties as the law of the case. (1) That plaintiff's patent is valid. (2) That defendants, in making and using the machines referred to in the stipulation, infringed plaintiff's patent. (3) That plaintiff's patent is limited to the particular means employed, to wit, the removal of the disintegrated skins of the peaches by forcible sprays or jets of water. The opinion of this court, speaking through Judge Morrow, carrying with it the above limitation of plaintiff's patent, is a part of the law of the case. Thompson v. Maxwell Co., 168 U.S. 451, 456, 18 S. Ct. 121, 42 L. Ed. 539; Mutual Life Co. v. Hill, 118 F. 708, 55 Cow. C. A. 536; Olsen v. North Pacific Co., 119 F. 77, 79, 55 Cow. C. A. 665; Empire State Co. v. Hanley, 136 F. 99, 100, 69 Cow. C. A. 87; Montana Mining Co. v. St. Louis Co., 147 F. 897, 78 Cow. C. A. 33; D'Arcy v. Jackson Cushion Co., 212 F. 889, 129 Cow. C. A. 409. The findings of the master in passing on disputed questions of fact are entitled to great respect. Where, as in this case, they are approved by the District Court, there is a strong presumption that they are correct. Davis v. Schwartz, 155 U.S. 631, 636, 15 S. Ct. 237, 39 L. Ed. 289; Last Chance Co. v. Bunker Hill Co., 131 F. 579, 587, 66 Cow. C. A. 299; Fullerton Association v. Anderson Co., 166 F. 443, 453, 92 Cow. C. A. 295; Bemis Car Co. v. J. G. Brill Co., 200 F. 749, 764, 119 Cow. C. A. 229; Continuous Glass Co. v. Schmertz Glass Co., 219 F. 199, 205, 135 Cow. C. A. 85; U. S. Frumentum Co. v. Lauhoff, 216 F. 610, 613, 132 Cow. C. A. 614; Malleable Iron Range Co. v. Lee (C. C. A.) 263 F. 896; Westinghouse Co. v. Wagner Manufacturing Co. (C. C. A.) 281 F. 453. This rule is specially applicable to the case at bar. The record is replete with evidence of the intelligent, conscientious, and painstaking attention given by the master to the determination of the questions referred to him. In determining the profits with which a defendant in a patent suit is chargeable, the burden of proof rests upon plaintiff. 20 Rawle C. L. 1177, 1178; Metallic Rubber Co. v. Hartford Co. (C. C. A.) 275 F. 315, 320, 321; Fox Co. v. Underwood Co. (C. C. A.) 287 F. 447, 449. The same rule applies in the assessment of plaintiff's damages. Dowagiac Co. v. Minnesota Co., 235 U.S. 641, 35 S. Ct. 221, 59 L. Ed. 398. The profits recoverable are actual, not possible, profits. Coupe v. Royer, 155 U.S. 565, 583, 15 S. Ct. 199, 39 L. Ed. 263. 975 The profits for which an infringer must account are the fruits of the advantage which he derived from the use of the invention, as compared with other means then open to the public and adequate to enable him to obtain an equally beneficial result. Mowry v. Whitney, 14 Wall. 620, 651, 20 L. Ed. 860; Black v. Thorne, 12 Blatchf. 20, 3 Fed. Cas. 525; same case on appeal, 111 U.S. 122, 124, 4 S. Ct. 326, 28 L. Ed. 372; Tilghman v. Proctor, 125 U.S. 136, 146, 8 S. Ct. 894, 31 L. Ed. 664; Coupe v. Royer, 155 U.S. 565, 583, 15 S. Ct. 199, 39 L. Ed. 263; Knox v. Great Western Mining Co., 6 Sawy. 430, 14 Fed. Cas. 809-811; Locomotive Safety Co. v. Pennsylvania Co. (C. C.) 2 F. 677, 681; Columbia Wire Co. v. Kokomo Co., 194 F. 108, 109, 114 Cow. C. A. 186; Cambria Iron Co. v. Carnegie Steel Co., 224 F. 949, 140 Cow. C. A. 437; 20 Rawle C. L. 1177. It was competent for the parties to offer proof as to the means available to the defendants for the peeling of peaches at the time when the infringements took place, and it was the duty of the master to determine the profit or advantage to the defendants in the use of the plaintiff's invention as compared with other means available. Plaintiff contends that no machinery was so available to defendants and that the comparison should be made with hand peeling. The evidence of plaintiff has been compiled and presented on this theory. The defendants, by an overwhelming array of testimony, showed that long prior to plaintiff's invention the lye peeling of peaches was well known to the canners of California. On the 21st of October, 1890, a patent was issued to D. D. Jones for a fruit-dipping apparatus. Jones' invention provided a means for dipping fruit in a solution of lye. It is true, as contended by plaintiff, that the patent did not cover any means for treating the fruit after the application of the lye. It is also true that the process was designed particularly for prunes. But the evidence shows that thousands of these Jones dippers were in use in California at the time when plaintiff's patent was issued, July 21, 1914. A number of peach canners were using the device for removing the skins from peaches. Usually the peaches, after immersion in the lye solution, were doused in clear water and then hosed off by hand. The witness Gardner testified that he had peeled a considerable quantity of peaches by this method as early as 1887. This testimony was not admitted for the purpose of proving anticipation, but only to show the state of the art at the time of the infringement. Plaintiff contends that the peeling of peaches by this method infringes plaintiff's patent, and that therefore this method is not available to defendants as a standard of comparison. It is contended that a party peeling in this manner might fasten his hose and let it spray the receptacle containing the peaches as it comes out of the lye. The witness Harry C. Pyle testified to spraying in this manner, and it is probable that such a use of the hose would infringe plaintiff's patent. The bulk of the testimony along this line is to the effect that the hose was used by hand, the operator applying the jet or spray with such force and for such a time as the situation required. We have no hesitation in holding that such a method of peeling does not infringe plaintiff's patent. Plaintiff's is a combination patent; all of its elements are old. In such case the patent is limited to the specific combination. A defendant who omits one of the material elements of the combination does not infringe. The Corn Planter Patent, 23 Wall. 181, 219, 23 L. Ed. 161; Portland Gold Mining Co. v. Hermann, 160 F. 91, 99, 87 Cow. C. A. 247; Seeger Refrigerator Co. v. American Car Co. (D. C.) 212 F. 742, 749; Wilson & Willard Co. v. Union Tool Co., 249 F. 729, 731, 161 Cow. C. A. 639. A man holding a hose in his hand is not the mechanical equivalent of the jets of water called for in the Dunkley patent. Carter Machinery Co. v. Hanes, 78 F. 346, 348, 349, 24 Cow. C. A. 128; In re Smithey, 49 Ohio App. D. C. 374, 265 F. 1014. In providing a machine to apply the jets, which prior thereto had been applied by hand, plaintiff's assignor brought about an advance in the art of peeling peaches. It does not necessarily follow that the new process involves a saving in expense over the old. Black v. Thorne, 111 U.S. 122, 124, 4 S. Ct. 326, 28 L. Ed. 372. Defendants' evidence satisfies us that the peeling of peaches by the use of the Jones dipper and hand hose is efficient and practicable; that the fruit so peeled is equal in quality to that treated by plaintiff's machine. The patent on the Jones dipper expired in 1907, and the device was available for public use when plaintiff's patent was issued. The burden devolved on plaintiff to show that the use of the infringing machines brought the defendants an advantage and profit. It was also incumbent on plaintiff to furnish evidence from which the master 976 could determine the value in dollars of the advantage to the defendants of the infringing machines as compared with the Jones dipper. The record is silent on this subject. Plaintiff's evidence is directed to showing the value to the defendants of the infringing machines as compared with hand peeling. Even in this aspect of the case the master found the evidence insufficient to justify a finding for plaintiff. It is unnecessary to review his conclusions on this subject, because we prefer to rest our decision on the other ground. There is no evidence that defendants made any profits by the use of the infringing machines in excess of those which they would have made by using the Jones dipper. The master and the District Court did not err in holding that on this record the defendants using the infringing machines are not chargeable with profits. The infringement by Anderson-Barngrover Manufacturing Company consisted, not in the use, but in the manufacture, of the infringing machines. The master found its profits to be $220.73. This finding was approved by the District Court, and we see no reason for disturbing it. The damages awarded plaintiff against the other defendants were based upon the conclusion of the master that 25 cents a ton for all peaches peeled on the infringing machines was a reasonable royalty to be allowed plaintiff. There is no evidence that plaintiff lost the sale of any of its machines because of the infringements, and we find in the record no evidence on which to base a judgment for damages, except on the theory of a reasonable royalty. Plaintiff's witness Jones testified that $2 a ton would be a reasonable royalty. This testimony was received over the objection of defendants, and we think the objection was well taken. Jones is an accountant in plaintiff's employ. He is not a practical canner, and there is nothing to show that he is familiar with the operations of any business except plaintiff's. It is true, however, that in connection with the trial of this case he had investigated the books and records of the defendants. Where there is an established regular price for a license to use a patented machine, that price may be taken as a measure of damages against infringers. Rude v. Westcott, 130 U.S. 152, 165, 9 S. Ct. 463, 468 (32 L. Ed. 888); Hunt Bros. v. Cassiday, 64 F. 585, 587, 12 Cow. C. A. 316. With reference to the sales which suffice to establish such price it is said in the first of the above cases: "Like sales of ordinary goods, they must be common that is, of frequent occurrence to establish such a market price for the article that it may be assumed to express, with reference to all similar articles, their salable value at the place designated." There have been received in evidence seventeen license contracts executed by plaintiff. One of these bears date in 1917, five in 1919, six in 1920, one in 1921, and four in 1922. The interlocutory decree passed on the 8th of December, 1916, enjoined the defendants from infringing plaintiff's patent, and there is no evidence that they have violated the injunction. All of these contracts, therefore, postdate the infringements. These 17 contracts executed in a period of six years are too few in number and too late in time to establish a market price for the license as of the date of the infringements. It furthermore appears that during these years plaintiff was perfecting its machine. At the date of the infringements the machine was much less efficient than that involved in the later license contracts. The contracts were not mere license agreements. In 15 of the 17 there were involved settlements and releases for prior infringements by the licensees. The royalty of $3 per ton called for by these contracts included supervision and assistance furnished by plaintiff in the use of the machines. The royalty was reduced to $2.40 per ton in case the licensees peeled as many as 1,200 tons of peaches. The machines were furnished by plaintiff and remained its property; in this respect the situation of the licensees differed from that of the defendants, who furnished their own machines. For all of these reasons, and other reasons pointed out by the master in his report, these contracts do not greatly assist us in determining what is a reasonable sum to be allowed plaintiff as a royalty. The royalty should be fixed in the light of the conditions which obtained when the infringements took place. A. Mecky v. Garton Toy Co. (D. C.) 277 F. 507, 513. It should be fixed at such a sum as the defendants would probably have consented to pay, rather than dispense with the patented machine. Page Machinery Co. v. Dow, Jones & Co. (D. C.) 238 F. 369, 372. The value to the defendants of the present highly developed and useful machine of plaintiff is clearly not determinative of the royalty which should be allowed in the case at bar. On the other hand, the defendants, 977 having used machines which embody plaintiff's patent, cannot be heard to dispute the utility of the patent. Lehnbeuter v. Holthaus, 105 U.S. 94, 96, 97, 26 L. Ed. 939; International Tooth Co. v. Hanks Association (C. C.) 111 F. 920, 921; same case affirmed, 122 F. 74, 58 Cow. C. A. 180; Cummer & Son Co. v. Atlas Co., 193 F. 993, 997, 113 Cow. C. A. 611; Boyce v. Stewart, 220 F. 118, 126, 136 Cow. C. A. 72. The amount reasonable to be allowed as a royalty may be determined on evidence showing the nature of the invention, its utility and advantage. Dowagiac Co. v. Minnesota Co., 235 U.S. 641, 35 S. Ct. 221, 59 L. Ed. 398; Hunt Bros. v. Cassiday, 64 F. 585, 587, 12 Cow. C. A. 316; Cassidy v. Hunt (C. C.) 75 F. 1012; U. S. Frumentum Co. v. Lauhoff, 216 F. 610, 613, 132 Cow. C. A. 614; Malleable Iron Range Co. v. Lee (C. C. A.) 263 F. 896. When the court is called upon to fix a royalty, it should be conservative in determining the amount. Consolidated Rubber Tire Co. v. Diamond Rubber Co. (D. C.) 226 F. 455, 459. The amount named should not be so high as to preclude the use of the patented machine. A. Mecky Co. v. Garton Toy Co. (D. C.) 277 F. 507, 511. We have had some doubt of the adequacy of 25 cents a ton, the amount allowed by the master and the District Court, but with hesitation we affirm this finding. Plaintiff moved before the master to extend the accounting to cover the use by the defendants of the Premier and Anderson-Barngrover machines, and also the Pasadena washer. There is authority for the practice so resorted to for the purpose of raising the question. Wooster v. Thornton (C. C.) 26 F. 274, 275; Hoe v. Scott (C. C.) 87 F. 220; Westinghouse Air Brake Co. v. Christensen Co. (C. C.) 126 F. 764; Chicago Grain Co. v. Chicago, B. & Q. R. Co. (C. C.) 137 F. 101, 105; Walker Patent Bin Co. v. Miller (C. C.) 146 F. 249, 250, 251; Brown Bag Co. v. Drohen (C. C.) 171 F. 438, 439. The master heard argument on this motion, and also saw in practical operation in the peach season all of the above machines, as well as that of plaintiff. He denied the motion, and error is assigned on the action of the District Court in confirming this part of his report. The three machines involved in plaintiff's motion are all patented, and the presumption is that they do not infringe. Ransome v. Hyatt, 69 F. 148, 16 Cow. C. A. 185; Mastoras v. Hildreth (C. C. A.) 263 F. 571, 575; Western Well Works v. Layne Corporation (C. C. A.) 276 F. 465, 472; Schumacher v. Buttonlath Co. (C. C. A.) 292 F. 522, 531. Plaintiff contends that its assignor was a pioneer in the art of peach-peeling, and that the claims contained in its patent cover all methods by which peaches can be peeled through a lye bath and the subsequent application of water. Plaintiff relies on the adjudication in the interference proceeding. Dunkley v. Beekhuis, 39 Ohio App. D. C. 494, 499. The defendants in this case were not parties to that litigation. An interference proceeding involves no question, except priority of invention as between the parties to the proceeding. U. S. ex rel. Lowry v. Allen, 203 U.S. 476, 482, 27 S. Ct. 141, 51 L. Ed. 281; Westinghouse v. Hien, 159 F. 936, 941, 87 Cow. C. A. 142, 24 L. R. A. (N. S.) 948; Hillard v. Remington Typewriter Co., 186 F. 334, 108 Cow. C. A. 534. The opinion passed in that proceeding is therefore ineffectual to establish the construction to be given plaintiff's patent. It was held by this court in Dunkley Co. v. Pasadena Canning Co., 261 F. 386, 388, that "the Dunkley patents must be limited to the particular means employed, and those means must be limited to directing peeling jets of water upon the fruit." This principle became a part of the law of this case when incorporated in the last opinion handed down. 282 F. 406. This court has expressly held that the Pasadena washer does not infringe plaintiff's patent, and the reasoning on which this conclusion rests is equally applicable to the Premier and Anderson-Barngrover machines. In all of them the peaches, after being dipped in the lye solution, are peeled by rubbing against each other and against the sides of a container while being doused in water. Plaintiff contends that the intakes in these machines perform the same function as the jets on plaintiff's machine, but it was demonstrated to the satisfaction of the master that in all of them the peeling can be effected with the intake of water shut off. The master compares the difference in the operation of these machines to the difference between washing the hands under a jet of water and dousing them in a washbowl. We have considered all plaintiff's arguments on this branch of the case, and find no error in the denial of plaintiff's motion so to extend the accounting. Plaintiff filed supplemental bills, alleging the use by the defendants of the Pasadena washer and the Anderson-Barngrover and 978 Premier machines. Plaintiff prayed in these bills for injunctive relief and an accounting. This practice was resorted to in reliance on the opinion of this court in Riverside v. Stebler, 240 F. 703, 706, 153 Cow. C. A. 501. The District Court sustained defendants' motions to dismiss these bills and for reasons above stated we find it unnecessary to review this ruling. The use of these machines involving no infringement, plaintiff suffered no injury in the dismissal of these pleadings. Error is predicated on the allowance of $12,000 as compensation for the master, and also on the division of the costs equally between plaintiff and defendants. We are not disposed to disturb either of these rulings. After preliminary hearings in which questions of law were raised, the taking of testimony began on the 22d of August, 1922. It continued with intermissions until April 11, 1923. Many exhibits were introduced, calling for discriminating analysis on the part of the master. He was called upon to leave San Francisco on several occasions to view the operation of the various machines involved in the controversy. The litigation involved a very large sum of money. In passing on the questions referred to him, the master was required to study a voluminous record and to investigate a number of questions of law. He performed his work with fidelity and care. The compensation awarded was not unreasonable. The decree is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509675/	7 F.2d 44 (1925) SPRINGFIELD NAT. BANK et al. v. AMERICAN SURETY CO. OF NEW YORK. No. 4285. Circuit Court of Appeals, Sixth Circuit. July 3, 1925. J. E. Bowman, of Springfield, Ohio (Frank W. Geiger, of Springfield, Ohio, on the brief), for appellants. James I. Boulger and W. R. Pomerene, both of Columbus, Ohio, for appellee. Before DENISON, DONAHUE, and MOORMAN, Circuit Judges. MOORMAN, Circuit Judge. On April 8, 1922, the American Surety Company executed a bond to the state of Ohio, as surety for the Springfield National Bank, to secure a deposit of the state of $50,000 in the bank. On May 20, 1922, it became surety on a bond of $50,000 executed by A. H. Penfield for the faithful performance of his duties as cashier of the bank. Through the frauds of Penfield the bank became insolvent and was closed by the comptroller April 5, 1923. Shortly after the appointment of the receiver the state filed proof of its claim against the bank, which was allowed, and a certificate of allowance issued to the state and assigned by it to the surety company upon the payment by that company of its full liability on the deposit bond. Subsequently the receiver for the bank paid to the surety company about $21,000 on the claim of the state. The *45 difference between the amount so received by the surety and what it paid to the state it claims is a debt due it from the bank which may be set off against its liability to the bank under the bond of Penfield. The lower court sustained the claim. The recent case of United States Fidelity & Guaranty Co. v. Wooldridge, Receiver, etc., 45 S. Ct. 489, 69 L. Ed. ___, decided May 11, 1925, clearly disposes of the contention that the surety company had the right of set-off as assignee or subrogee of the state. It is contended, however, for the company that a provision in the application of the bank for the bond, by which it agreed to "indemnify and keep indemnified" the surety against any loss sustained on account of the suretyship, brings into existence independent and different rights from those arising under the assignment which may be enforced against its liability on the cashier's bond. This provision did not give to the surety company any right that it otherwise did not have upon the execution of the bond, for there is always an implied obligation, in the absence of an agreement to the contrary, that the principal will indemnify the surety against loss resulting from the suretyship. This applied to the case just referred to, and hence the surety company has no rights that were not available to the guaranty company in that case. The company did not elect to stand alone on the express or implied obligation of the bank to indemnify it against loss on the deposit bond, but took an assignment of the state's claim and accepted its distributable share of the estate. But apart from that consideration, its potential liability on the deposit bond was converted into a claim against the bank when and not until the bank became insolvent and unable to repay the state. The liability on the Penfield bond became fixed upon his defalcation, whether the bank was or was not thereby rendered insolvent. The two bonds were separate transactions, totally lacking in contact. When other equities are involved the right of set-off ordinarily depends on mutual credits which have been defined as "an existing debt due to one party, and a credit by the other party, founded on, and trusting to such debt, as a means of discharging it." Scott v. Armstrong, 146 U.S. 499, 13 S. Ct. 148, 36 L. Ed. 1059. Courts of equity have held that the requisite mutuality exists where the transactions are such as to raise a presumption of reciprocal credits or an agreement for a set-off. Carr v. Hamilton, 129 U.S. 252, 9 S. Ct. 295, 32 L. Ed. 669. But the presumption cannot be indulged here. Each bond was independent of the other and executed for the usual consideration for a single bond of that kind. The only color of connection between the two demands arises from the fortuitous circumstance that the dishonesty of the cashier caused the bank's insolvency. It could not be supposed that when the bank agreed to indemnify the surety on the deposit bond it relied on the latter's liability on the cashier's bond (not then in existence) in the event of his defalcation, or that the surety company, in accepting the bank's obligation, trusted as a means of discharging it to a liability that it thereafter assumed for a wholly separate consideration. Nor is it to be presumed that in executing the bond of the cashier for the usual consideration the surety company relied on the obligation of the bank to indemnify it against loss on the deposit bond. The bank was legally bound to repay on demand the deposit made by the state. The surety obligated itself to pay if the bank should default. To permit the performance of that obligation to defeat a separate surety obligation would eventuate in an unfair distribution of the bank's assets among its creditors. A majority of the court think the case is within the principle announced in the Wooldridge Case. The judgment is reversed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509706/	633 S.W.2d 899 (1982) Leon Oneal DANIELS, Appellant, v. The STATE of Texas, Appellee. No. 63062. Court of Criminal Appeals of Texas, Panel No. 1. June 9, 1982. 900 John T. Knouse, Dallas, for appellant. Henry M. Wade, Dist. Atty., Maridell Templeton, R. R. Smith and Rick Russell, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State. Before ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ. OPINION TOM G. DAVIS, Judge. Appeal is taken from a conviction for burglary of a habitation. After the jury found appellant guilty it found that he had been convicted of a prior felony. Punishment was assessed at 30 years. C. L. Jack is a friend of the complaining witness, Anita Simon. Jack was at Simon's apartment in the early morning hours of April 16, 1978. He testified to hearing a noise in the living room. He and Simon went up the hallway and saw appellant standing in the living room. Appellant unlocked the door and ran from the apartment. Jack pursued appellant and brought him back to the apartment. Simon testified that appellant told her he wanted to get her television set. Officer E. D. Holsinger of the Dallas Police Department testified that he received a call and went to Simon's apartment. He observed that the front window screen was off and also observed injuries to appellant's elbows. Appellant contends the court was in error "in refusing to submit appellant's requested charge on the lesser included offense of criminal trespass." The offense of criminal trespass has been held to be a lesser included offense of burglary. Day v. State, Tex.Cr.App., 532 S.W.2d 302. In determining whether a charge on the lesser included offense is 901 required a two-step analysis was set forth in Royster v. State, Tex.Cr.App., 622 S.W.2d 442. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Appellant offered evidence from a number of witnesses that he had been drinking heavily prior to the occasion in question. Among the witnesses who testified as to his intoxicated condition were his mother and sister. Appellant lived intermittently at his sister's apartment which was located in the same complex as Simon's apartment. Appellant's mother, who also lived in the apartment, related that appellant came to the apartment prior to the time in question and she refused him admittance because of his intoxicated state. Appellant had previously been told not to come to the apartment when he was drunk and had on occasion gained entrance through a window of the apartment where he was refused admittance. The appellant took the stand in his own behalf and his testimony reflects the following regarding his entry into the apartment in question: "Q.... Now, ... when you opened the window and went into this apartment, where did you think you were? "A. I thought I was in my room. See, the room that I went in, I thought it was the room that my little niece sleeps in and I never do go to sleep in that room. You know, I always go to the front room. "When I went in, I came through the room and when I got into the house, I was fixing to get down on my knees and crawl to the living room. Somebody say, `Hey, nigger,' and I think that scared me and I thought it was my brother and I ran out. "... "Q. Did you have any intention in your mind of stealing anything when you went into the apartment? "A. No. "Q. What was your intention? "A. Go to sleep. "Q. All right. Now, whose apartment did you think you were in? "A. I thought I was in my mother's apartment my sister's apartment." The offense of criminal trespass under V.T.C.A. Penal Code, Sec. 30.05 consists of the following elements: (1) a person (2) without effective consent (3) enters or remains on the property of or in a building of another (4) knowingly or intentionally or recklessly (5) when he had notice that entry was forbidden or received notice to depart but failed to do so. See Day v. State, supra 532 S.W.2d at page 306. Appellant's testimony negated that he knowingly or intentionally entered the apartment of the complaining witness. The culpable mental state of "recklessly" is defined in V.T.C.A. Penal Code, Sec. 6.03(c) as follows: "A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." The testimony of appellant that he thought he was in his sister's apartment refutes that he was "aware of but consciously disregards a substantial and unjustifiable risk." Thus, appellant, in his own testimony, expressly denied that he had the required culpable intent of "knowingly or intentionally or recklessly" required to commit the offense of criminal trespass. *902 No error is shown in the court's failure to charge on criminal trespass.[1] Appellant complains of improper jury argument by the prosecutors at the punishment stage. In his jury argument at the punishment stage, appellant's counsel stated: "Remember that you are judging a human being's life and you are not sending him away for a little bit. If you send him away for the minimum, you are sending him away for fifteen years of his life." During prosecutor Smith's jury argument, the following exchange occurred: "Members of the jury, before I do anything else, let me disagree. I don't object, but let me disagree with a few things that Mr. Knause had to say. "... "Now, he tells you that ... fifteen years is a long time for him to be serving down there. He tells you that he will serve fifteen years if you give him that. Well, that is just flat not true. "You know from his mother that the last time he went down, he was there six months. "MR. KNAUSE: Your Honor, I object to the prosecutor's statement as being in violation of the Court's instruction. "MR. RUSSEL: I think Mr. Knause opened the door to that argument ... "He won't serve fifteen if he gets fifteen years and he won't serve fifty if he gets fifty. "MR. KNAUSE: I object to that statement by Mr. Russel." The court sustained both objections by appellant's counsel and instructed the jury not to consider any parole the appellant might receive in reaching its verdict on punishment. Appellant's counsel moved for mistrial which the court denied. Later in his jury argument, prosecutor Smith said: "I think a life sentence is a proper sentence ... If he can be rehabilitated, maybe they will have enough time to do it." A jury in a felony case is not authorized to consider or apply the parole law in assessing punishment. Argument urging them to do so is improper and constitutes error. Woerner v. State, Tex.Cr.App., 576 S.W.2d 85; Carrillo v. State, Tex.Cr.App., 566 S.W.2d 902; Clanton v. State, Tex.Cr. App., 528 S.W.2d 250. However, when defense counsel improperly suggests that a defendant will serve all of the sentence he is given, the prosecutor is allowed to make an explanatory statement showing the inaccuracy of defense counsel's remarks. Clanton v. State, supra; Parish v. State, Tex.Cr.App., 523 S.W.2d 665; Hefley v. State, Tex.Cr.App., 489 S.W.2d 115. Error, if any, in the prosecutor's argument was rendered harmless by the court's instruction to disregard. Thomas v. State, Tex.Cr.App., 578 S.W.2d 691; Wyatt v. State, Tex.Cr.App., 566 S.W.2d 597; Bradley v. State, Tex.Cr.App., 489 S.W.2d 896. No objection was voiced to the prosecutor's statement regarding appellant's rehabilitation. Nothing is presented for review. No error is shown. The judgment is affirmed. NOTES [1] The court properly instructed the jury of the defense of mistake of fact. V.T.C.A. Penal Code, Sec. 8.02(a) provides: "It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509776/	7 F.2d 28 (1925) TERRY v. UNITED STATES. No. 4433. Circuit Court of Appeals, Ninth Circuit. August 3, 1925. Wilford H. Tully, of San Francisco, Cal., for plaintiff in error. 29 Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal. Before GILBERT, HUNT, and RUDKIN, Circuit Judges. RUDKIN, Circuit Judge. On or about June 19, 1922, a number of prohibition agents gained information from some source that a large quantity of inxtoxicating liquors was about to be landed at Allen's Wharf, in Monterey county, and that the liquors so landed would be removed from the wharf by automobiles. The agents concealed themselves in the vicinity of the wharf until the automobiles, to the number of a dozen or 15, appeared upon the scene to remove the liquor, and while the occupants of the automobiles were thus engaged they were apprehended by the agents, and the liquors, together with the automobiles, were seized. Such is the brief story told by the record, yet the indictment covers 38 pages of the printed transcript, and is said to contain upwards of 8,000 words. The indictment charges that the defendants, to the number of 16, did, at or near Allen's Wharf, in the county of Monterey, on or about the 1st day of November, 1921, the real and exact date being to the grand jurors unknown, conspire and confederate together to commit offenses against the United States in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), to the number of 10, and sets forth a large number of overt acts to effect the object of the conspiracy. Upon the trial the case was submitted to the jury as to 9 of the defendants, and a verdict of guilty was returned as to 5, and not guilty as to 4. Terry, one of the defendants found guilty, has sued out a writ of error to review the judgment of conviction. Upon the trial the court admitted testimony, over objection and exception, tending to prove that, about 6 weeks prior to the incident at Allen's Wharf, the plaintiff in error employed one Frohn to transport several barrels of intoxicating liquor from Bodega Bay to a ranch house in the vicinity of Petaluma; that at or about the same time the defendant Zucker rented a barn from one Sousa in that vicinity, and that 9 barrels of intoxicating liquor were stored therein. There was no testimony of any kind, direct or circumstantial, tending to connect any of the other defendants with this prior incident or transaction. Upon the foregoing facts the court charged the jury as follows: "It is not necessary that the government prove each and all of the overt acts charged in the indictment, nor even the specific act therein charged. Evidence was introduced here of another overt act, known as the Bodega Bay incident; that would be sufficient to sustain the charge as against at least the defendants whom you find concerned therein. It is sufficient if the jury are satisfied that a conspiracy was entered into for the purpose charged, and that some one or more of the parties did some one of the acts charged for the purpose of carrying it into effect." Again: "In arriving at your verdict as to whether or not there was a conspiracy, and, if so, which, if any, of the defendants were parties to it, you are not confined to evidence of a common design to land, transport, sell, or possess the liquor at Allen's Wharf, but you may consider whether or not any of these parties conspired to land, transport, sell, or possess liquor generally, or at any other place. The landing and attempted sale, transportation, or possession at Allen's Wharf, if you believe there was such attempted sale, transportation, or possession, was but the overt act as previously defined to you. * * There is testimony that the defendant Terry employed the witness Lawrence Frohn, brother of defendant Edison Frohn, to transport liquor to and from a farm near Petaluma. Then there is evidence that the defendant Zucker rented a barn near Petaluma, and that barrels of whisky were stored in this barn, and transported from there in demijohns. This evidence, if it is believed by you to be true, and you believe this was the same farm, is evidence of a common design to transport and posses liquor as to the defendants Terry and Zucker." These instructions were duly excepted to. The plaintiff in error contends that the charge in the indictment is limited to a conspiracy entered into at or near Allen's Wharf, in the county of Monterey, and does not extend to or include the prior incident at Bodega Bay. Ordinarily a charge of conspiracy is not circumscribed or limited by averments as to the time when or the place where the conspiracy was formed. The charge is limited, however, by the terms of the indictment itself. The indictment here charges but one combination or conspiracy, however diverse its objects, and no defendant could be convicted thereunder unless he was shown to be a member of or party to that conspiracy. Furthermore, the scope of 30 the conspiracy must be gathered from the testimony, and not from the averments of the indictment. The latter may limit the scope but cannot extend it. Here we find no testimony tending to show any general conspiracy covering and including both the incident at Allen's Wharf and the incident at Bodega Bay. On the other hand, every inference from the testimony is to the contrary. There is no testimony tending to show that the parties assembled at Allen's Wharf were parties to a conspiracy to transport, possess, or sell intoxicating liquor at Bodega Bay, six weeks before, or that they had any knowledge whatever of that transaction. In short, there is no testimony in the record tending to connect the defendants, other than Terry and Zucker, with any conspiracy, except such inferences as may be drawn from their presence at or connection with the incident at Allen's Wharf, and all the overt acts relate to that incident alone. The indictment charges no conspiracy to transport, possess, or sell intoxicating liquor at Bodega Bay, in terms, and avers no overt act to effect the object of such a conspiracy, if one existed. In ruling upon the admission of testimony, and in the charge to the jury, the court proceeded upon the theory that some of the defendants might be convicted of one conspiracy and some of another; that is, that the plaintiff in error and the defendant Zucker might be convicted of a conspiracy to transport, possess, or sell intoxicating liquor at Bodega Bay, and the remaining defendants of a conspiracy to transport, possess, or sell intoxicating liquor at Allen's Wharf, even though the two conspiracies and the parties thereto were entirely different. The rulings admit of no other construction. "If, however, the charge of conspiracy in the indictment is merely that all the defendants had a similar general purpose in view, and that each of four groups of persons were co-operating without any privity each with the other, and not towards the same common end, but toward separate ends similar in character, such a combination would not constitute a single conspiracy, but several conspiracies, which not only could not be joined in one count, but not even in one indictment." United States v. M'Connell (D. C.) 285 F. 164. In other words, a conspiracy is not an omnibus charge, under which you can prove anything and everything, and convict of the sins of a lifetime. For these reasons the rulings complained of are erroneous and call for a reversal. Proof that the plaintiff in error was guilty of another crime was in itself prejudicial, and an instruction that he might be convicted of a crime not charged in the indictment cannot be sustained. In view of a retrial of the case, we deem it proper to refer to one of the instructions complained of. The instruction is as follows: "The formation or existence of a conspiracy may be shown either by direct or positive evidence, such as declarations or writings, or by circumstantial evidence, such, for instance, as showing that the parties charged acted together or in concert, or in a manner or under circumstances warranting the inference that their acts were the result of previous understanding or arrangement between them. The law does not require the prosecution to put their finger upon the precise method or manner in which a conspiracy of this kind is entered into, if the facts that may be adduced before you show such an arrangement did exist between the defendants to do the acts charged, because it would be impossible, in 99 cases out of 100, for the government to undertake such proof. Things are not done in that way. The existence of a conspiracy may be manifested either in words or deeds. In this case, therefore, even though you may find that there was no open or express declaration of purpose on the part of these defendants or the other parties concerned to unite in doing the acts charged, yet if you find that the acts of the parties were committed or accomplished in a manner or under circumstances which, by reason of their situation at the time and the conditions surrounding them, give rise to a reasonable and just inference that they were done as the result of a previous agreement then you are justified in finding that a conspiracy existed between them to do those acts." The italicized portion of the instruction does not contain a correct statement of the law. "It is also true, in cases of conspiracy, as in other criminal cases, that the prisoner is presumed to be innocent until the contrary is shown by proof; and, where that proof is, in whole or in part, circumstantial in its character, the circumstances relied upon by the prosecution must so distinctly indicate the guilt of the accused as to leave no reasonable explanation of them which is consistent with the prisoner's innocence." United States v. Lancaster (C. C.) 44 F. 896, 904, 10 L. R. A. 333. 31 "I have stated to you that the offense may be established by circumstantial evidence; but circumstantial evidence, to warrant a conviction in a criminal case, must be of such a character as to exclude every reasonable hypothesis but that of guilt of the offense imputed to the defendant, or, in other words, the facts proved must all be consistent with and point to his guilt only, and inconsistent with his innocence. The hypothesis of guilt should flow naturally from the facts proven, and be consistent with them all. If the evidence can be reconciled either with the theory of innocence or with guilt, the law requires that the defendant be given the benefit of the doubt, and that the theory of innocence be adopted." United States v. Richards (D. C.) 149 F. 443, 454. This rule is elementary, and facts which merely give rise to a reasonable and just inference that a conspiracy existed do not necessarily exclude every other reasonable inference or hypothesis, unless it can be said that only one just and reasonable inference may be drawn from a given state of facts. The latter proposition, of course, cannot be maintained. Nor is it entirely clear that the specific erroneous charge as to the quantum of proof required to establish a conspiracy was cured by a correct general charge on the presumption of innocence or the legal requirement of proof beyond a reasonable doubt. This question however, we are not called upon to determine on the present record. For error in the admission of testimony as to the Bodega Bay incident, and the charge of the court in relation thereto, the judgment is reversed, and the cause is remanded for a new trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509861/	282 F. Supp. 235 (1967) John E. COYNE, Petitioner, v. Donald WATSON, Sheriff, Clermont County, Ohio, Respondent. No. 6294. United States District Court S. D. Ohio, W. D. January 19, 1967. 236 Bernard J. Gilday, Jr., Cincinnati, Ohio, for petitioner. Robert A. Jones, Pros. Atty., Clermont County, Batavia, Ohio, for respondent. MEMORANDUM OPINION AND JUDGMENT HOGAN, District Judge. The petitioner, John E. Coyne, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. His claim is that a conviction and sentence in and by the Common Pleas Court of Clermont County, Ohio, pursuant to which he is being detained, was "imposed in violation of the Fourth Amendment of the United States Constitution and the Due Process Clause of the Fourteenth Amendment of the United States Constitution in that petitioner's place of business was searched by police officers under color of a totally invalid and unlawful search warrant, property being unlawfully taken therefrom and illegally and unlawfully admitted in evidence upon trial" by said court. The case was heard on an "agreed statement of facts" which has been supplemented in certain respects by each party, without objection by the other party, with exhibits appended to briefs. The facts are as follows: On August 16, 1965 an affidavit was filed before a magistrate in Clermont County, Ohio, and on that date a search warrant was issued. There is appended hereto a copy of the affidavit and the warrant. On August 17, 1965, during the daytime, the officer, Arthur Guard, entered the premises described in the affidavit and found a machine gun in a house trailer then used by the petitioner as his office. The weapon was confiscated by the officer. On August 27, 1965, petitioner filed with the County Court of Clermont County, Ohio, his written motion to quash the search warrant; that motion was overruled by that Court in September, 1965. Thereafter in December, petitioner was indicted by the Grand Jury of Clermont County, Ohio, for a violation of the machine gun section (2923.04) of the Revised Code of Ohio. Prior to his arraignment, petitioner filed with the Common Pleas Court his written motion to suppress the evidence seized under the search warrant, which was overruled. That motion was orally renewed at the commencement of petitioner's trial; it was again overruled. On trial, petitioner was adjudged guilty. The machine gun was introduced in evidence at trial over his objection and obviously substantially contributed to his conviction. The conviction was appealed to the Court of Appeals for the First Appellate District of Ohio. In that Court the sufficiency of the affidavit and the validity of the search warrant were again attackedagain unsuccessfully. The petitioner thereupon filed a motion to certify to the Supreme Court of Ohio. The same attacks were made in that 237 Court in that motion. The Supreme Court of Ohio on October 26, 1966, sua sponte dismissed that appeal for the reasons that no substantial constitutional question exists. The parties in this Court have stipulated that during each stage and phase of the state court proceedings, petitioner raised and argued the issue of infringement of his constitutional rights and "the invalidity of the affidavit for search warrant"the record so shows, for all practical purposes. While the rationale of the attack differed at various stages of the state court proceeding, we are satisfied that the ultimate questions involved have been presented to and passed on by each of the state courts, including the court of last resort. Although the Ohio post-conviction procedure (§ 2953.21 et seq., Ohio Revised Code) became effective after the submission of Coleman v. Maxwell, Warden, 351 F.2d 285 (6th, 1965), the reasoning of that case is applicable to the present situation; the asserted Federal Constitution violations have been presented to each of the Ohio state courts and any repetition would be futile. It is held, therefore, that the petitioner has exhausted his state remedies. See also Armstrong v. Haskins, 363 F.2d 429 (6th, 1966), and Kirkland v. Maxwell, 369 F.2d 687 (6th, 1966). The affidavit is and has been claimed as insufficient in several respects, (a) there is nothing in the affidavit to indicate that the informers were "reliable" or "credible" people; (b) there is an insufficiency in respect of the time relative to August 16, 1965, that the eye witnesses informed the Deputy Sheriff of the facts as set forth in the search warrant. It is true that language may be found in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697; Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879; Aquilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, and United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684, which, at first blush, would almost seem to require the use of the verbiage "credible" or "reliable" in connection with the "informers" in affidavits for search warrants based on hearsay, as distinguished from the personal knowledge of the affiant. The affidavit involved in this case does not use either of those adjectives on its face. However, the reason which might require the use of such an adjective or the equivalent is the basic or underlying requirement of something in the affidavit to indicate a "substantial basis for crediting the hearsay." In our view the requirement of "substantial basis" is better metor at least equivalently metwith the description of the informer or informers as "eye witnesses." This certainly indicates a strong reason for the officer's belief based upon which the magistrate may conclude that probable cause exists. We are strengthened in this conclusion by United States v. Bowling, 351 F.2d 236 (6th, 1965). In that case, decided since Ventresca, a search warrant was attacked as "defective because issued without basis of fact and as a fishing expedition or flier." The affidavit in the Bowling case, insofar as relevant to the problem here, contained this: "That affiant's reason for stating the laws are being violated are that affiant was informed on this date by W. A. Hennard, who is in custody, that the following stolen articles are in possession of * * * etc." Judge Edwards, writing the opinion for the Sixth Circuit, concluded "the affidavit on its face recited ample reason for the magistrate to issue the warrant." With respect to the deficiency in "time," it must be conceded that the affidavit must contain something affirmatively indicating that there is probable cause at or about the time the search warrant is applied for. If it be on personal knowledge, there should be some indication of the officer's personal knowledge now; or if it be based on hearsay, there should be some indication that the 238 information was imparted to the affiant at or shortly before the time of the application and that the information indicated probable cause now, not five or six days or months ago. See Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966). Were it not for that portion of the affidavit involved here which dealt with a "night search" we would have no hesitancy in holding the search warrant invalid for the reason stated in the Rosencranz case. However, the affidavit before us indicates that, based on the information which was received from the two eye witnesses, the officer concluded "that there is urgent necessity that said premises be searched in the night, to prevent said things from being concealed or removed so as not to be found." In our view, this affidavit therefore contains language which shows on its face that the information received by the officer was recently contemporaneous and was to the effect that the machine gun was "now" in the possession of Coyne on the described premises. Compare United States v. Williams, 351 F.2d 475 (6th, 1965) in which the Sixth Circuit in an opinion written by Judge Peck, held that the inclusion of the word "ready" in an affidavit reciting that a person "kept a ready supply of heroin on hand in his apartment" caused the allegation to be one of "continuing possession," satisfying the requirement that the allegations of a warrant apply to conditions existing "at the time of the issuance of the warrant." We do not mean to imply that no "doubt" could exist in this question. The state evidently thought a doubt existed at one of the hearings involving the question before the Common Pleas Court of Clermont County, the State saw fit to supplement the record with an affidavit from the magistrate reciting that "the affiant further says that at the time he received the affidavit for search warrant from the Deputy Sheriff, additional information was given to him as County Court Judge, which information consisted of the statement of Deputy Sheriff Arthur Guard, that `witnesses told him, Arthur Guard, that they saw John E. Coyne in the possession of a machine gun on his premises at the intersection of Twelve Mile Road and State Route 132.'" It is, however, our conclusion that the affidavit for the search warrant was sufficient on its face. The "circumstances" were detailed, i. e., the possession by Coyne on certain described premises of a machine gun, the possession of which was forbidden by the applicable laws of the State of Ohio. "Reason for crediting the source of the information is given"eye witnesses are referred to as such just for that reasonand the plural rather than the singular is certainly an additional reason. This Court sees no magic as between "one reliable witness" and "two eye witnesses." The "magistrate * found probable cause"his action in issuing the warrant indicates such and there is further indication in this record that the magistrate examined the proceedings and did not simply "rubber stamp." While the request was for a night warrant, the magistrate decided to issue only a "day warrant." Finally and to continue the quotation from Ventresca, "The courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." (United States v. Ventresca, 380 U.S. 102, at page 109, 85 S. Ct. 741, at page 746). The petitioner is now in the technical custody of the Sheriff of Clermont County, Ohio. He is presently at liberty on bond, pending determination of this matter. It is concluded that the petitioner's prayer for writ of habeas corpus should be denied. *239 SEARCH WARRANT Rev. Code, Secs. 2933.21 to .25 (Filed Clermont County Court, August 16, 1965.) Clermont County Court, Southern District. The State of Ohio, Clermont County, ss. Batavia, Ohio To Sheriff's Office Constable of ______ Township, Greeting: WHEREAS, there has been filed with me an affidavit, of which the following is a copy: Clermont County Court, Southern District. The State of Ohio, ______ County, ss: ______ Ohio Before me, Charles W. Jackson, Judge of said County Court, personally came Arthur Guard, Dep. Sheriff, who being duly sworn according to law, deposes and says that on or about the 16th day of August 1965, at the County of Clermont, one J. C. Coyne has in his possession, one machine gun in violation of 2923.04 R.C. things of the value of $100.00 Dollars, to-wit: One machine gun also known as a "grease gun" knowing the same to have been in violation of section 2923.04 and that said complainant believes, and has good cause to believe, that such things are concealed on or about his premises, the junk yard located near the intersection of 12 mile rd and S.R. #132 in buildings, old cars and junked trucks, situated thereon, in the Twp. of Ohio in said County. The facts upon which such belief is based are: two eye witnesses informed dep. sheriff Arthur Guard and, further that there is urgent necessity that said premises be searched in the night, to prevent said things from being concealed or removed so as not to be found. Said affiant further says that, on or about the said day J. C. Coyne did conceal said things, or some part thereof, at the place aforesaid in said County, then and there well knowing the same to have been violation of state law R.C. 2923.04 as aforesaid. /s/ ARTHUR E. GUARD Sworn to and subscribed before me, this 16th day of August 1965. /s/ CHARLES W. JACKSON County Court Judge These are, therefore, to command you in the name of the State of Ohio, with the necessary and proper assistance, to enter in the day time into said premises in the Twp. of Ohio in the County aforesaid, and there diligently search for the said things, to-wit: one machine gun and that you bring the same, or any part thereof, found on such search, and also the body of J. C. Coyne, forthwith before me, or some other judge or magistrate of the county having cognizance thereof, to be disposed of and dealt with according to law. Given under my hand this 16th day of August 1965. /s/ CHARLES W. JACKSON County Court Judge	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509848/	760 A.2d 823 (2000) 334 N.J. Super. 649 Jerome BODDY, Plaintiff-Appellant, v. CIGNA PROPERTY & CASUALTY COMPANIES, Defendant, and Atlantic Employers' Insurance Company, Defendant-Respondent. Superior Court of New Jersey, Appellate Division. Argued October 2, 2000. Decided October 30, 2000. 824 Robert P. Zisgen, Mahwah, argued the cause for appellant (Tuttle & Zisgen, attorneys; Mr. Zisgen, on the brief). Jeffrey M. Kadish, Livingston, argued the cause for respondent (Morgan, Melhuish, Monaghan, Arvidson & Lisowski, attorneys; Heidi P. Rubin Cohen and Mr. Kadish, on the brief). Before Judges PETRELLA and BRAITHWAITE. The opinion of the court was delivered by PETRELLA, P.J.A.D. Plaintiff Jerome Boddy appeals from the grant of summary judgment in favor of defendant Atlantic Employers Insurance Company (Atlantic).[1] Boddy had sought a declaratory judgment that his homeowners' insurance policy issued by his insurer, Atlantic, effective June 26, 1997, covered the theft of his motorcycle and damage to his vehicle. The policy provided coverage for "personal property you or a household member owns or uses anywhere in the world." "Personal property" was defined as "any tangible property other than real estate." The policy states, "We will generally cover property losses that result from a theft or attempted theft. We will also cover property if it disappears from a known location and it is probable that the loss was caused by theft." The policy excludes from coverage, among other things, "[m]otorized land vehicles including their equipment or accessories, except those vehicles which are not licensed for road use and are used to 825 assist the handicapped or to service a place where you or a household member regularly lives." Boddy asserts that, on or about February 12, 1998, his residence in Mahwah was broken into by an unknown person or persons and that his 1991 Harley Davidson Electra-Glide FLH motorcycle was stolen and his 1987 Chevrolet automobile was damaged in the course of the theft. Boddy sought approximately $20,000 for the loss of the motorcycle and $800 for the damage to his automobile. At the time the motorcycle was stolen it was off the road for the winter and was not otherwise insured. The motorcycle insurance was allowed to lapse because Boddy had suffered a stroke which left him unable to ride the motorcycle. He took the position that when his motorcycle was garaged at his house it was covered by his homeowners' insurance because the policy covered property damage. Likewise, at the time his automobile was damaged it was neither registered for road use nor insured under a separate automobile insurance policy. Boddy took the position that since both the motorcycle and automobile were unlicensed, they came within the exception to the "motorized land vehicle" exclusion. Atlantic denied coverage based on the "motorized land vehicle" exclusion, and Boddy instituted suit. Thereafter, Atlantic successfully moved for summary judgment. At the hearing, Boddy argued that the term "motorized land vehicles" is ambiguous and that the policy was not written in a simple, clear, and easily readable manner. Boddy relied on his retained expert's report which stated: If the intent of the exclusion is to exclude coverage under the policy for automobiles, motorcycles, mopeds and similar motor vehicles, whether licensed for road use or not, then the wording employed by Atlantic Employers fails to achieve this purpose and creates a material and substantive ambiguity in the mind of the reader and certainly in the mind of the average named insured who purchases a policy. The motion judge agreed with Atlantic, concluding that the policy language was unambiguous and that the interpretation of the insurance agreement was "a pure legal question" for the court to decide. I. Boddy asserts that the exclusion clause was not written in a "simple, clear, understandable and easily readable" manner as required by the Plain Language Act (N.J.S.A. 56:12-1, et seq.) (the Act), specifically under N.J.S.A. 56:12-2 as to insurance policies. The Act lists various guidelines that the court "may consider in determining whether a consumer contract as a whole complies" with this requirement. These factors include, among other things, confusing cross references, exceptions to exceptions, double negatives, and words that are either obsolete or have a legal meaning different from their common meaning. N.J.S.A. 56:12-10(a). Although an insurer may seek certification of compliance with the Act from the Attorney General or Commissioner of Insurance, the "[f]ailure to [seek certification] does not show a lack of good faith nor does it raise a presumption that the contract violates this act." N.J.S.A. 56:12-8(e). The policy exclusion provision at issue in this case contains an exception within an exception, which the statutory guidelines imply should be avoided. N.J.S.A. 56:12-10(a)(3). However, the existence of the exception to the exclusion does not necessarily indicate noncompliance so as to vitiate the exclusion. N.J.S.A. 56:12-2 indicates that a contract must be "written in a simple, clear, understandable and easily readable way as a whole." (emphasis added). Although the insurance policy exclusion in this case contains an exception within an exception, Boddy did not establish that the policy or the provision as a whole violates the statute, 826 and the judge did not so find. See Wheatly v. Sook Suh, 217 N.J.Super. 233, 239, 525 A.2d 340 (App.Div.1987) ("In construing a contract a court must not focus on an isolated phrase but should read the contract as a whole as well as considering the surrounding circumstances."). Moreover, the fact that Atlantic did not seek review by or certification from the Attorney General or Commissioner of Insurance, "does not show a lack of good faith nor does it raise a presumption that the contract violates this act." N.J.S.A. 56:12-8(e). In addition, N.J.S.A. 56:12-10 contains guidelines which "a court, the Attorney General or the Commissioner of Insurance, ... may consider in determining whether [the] consumer contract as a whole complies with this act." Thus, there is discretion as to how much consideration should be given to the guidelines in finding a violation of the Act. As noted, the existence of an exception to an exclusion clause does not in itself constitute a violation of the Act. Although decided prior to the effective date of the Act, N.J. Property Liab. Guar. Ass'n v. Brown, 174 N.J.Super. 629, 633-634, 417 A.2d 117 (App.Div.), certif. denied, 85 N.J. 462, 427 A.2d 561 (1980), is instructive. There, a bail bondsman in his office accidentally shot a friend who had paid him a social visit with a gun possessed for business reasons. We held that the exception to the insured's homeowners' policy exclusion for non-business pursuits provided coverage because "[s]howing a gun to a friend in such circumstances would not be an activity ordinarily incident" to the duties of a bail bondsman. Id. at 634, 417 A.2d 117. Cases decided after the effective date of the Act have also given effect to exception to exclusion clauses. See Burdge v. Excelsior Ins. Co., 194 N.J.Super. 320, 476 A.2d 880 (App.Div.1984) (holding that the underlying action arose out of insured's exercise of his personal and political rights, and not out of "business pursuits," and, thus, the policy exclusion for claims "arising out of business pursuits" did not apply because the exception to the exclusion for "non-business pursuits" was applicable.). Because an exception to an exclusion clause does not, in and of itself, constitute a violation of the Act, the motion judge correctly granted summary judgment on that basis. II. Boddy contends that there is a triable issue of fact as to whether his automobile and motorcycle are "motorized land vehicles" under his homeowners' policy. Boddy relies on Gibson v. Callaghan, 158 N.J. 662, 677, 730 A.2d 1278 (1999), to support his argument that reversal is warranted. In Gibson, homeowners' insurance coverage turned on the meaning of "household," which was not defined in the policy. Although the Court rejected the definition of "household" in Black's Law Dictionary, the rationale for doing so was that "the meaning of `household' will vary depending on the circumstances of a given case." Ibid. Gibson noted that the "insurance industry has known for almost forty years that the term `household' is susceptible of several interpretations." Id. at 678, 730 A.2d 1278. Thus, the court found the language used in the policy to be ambiguous and construed the disputed terms in favor of the insured. Id. at 677, 730 A.2d 1278. It is well-established that insurance contracts are to be construed in accordance with the reasonable expectations of the average policy holder and any ambiguity must be resolved against the insurance company. Gibson v. Callaghan, supra (158 N.J. at 670, 730 A.2d 1278). Furthermore, "in the absence of a specific definition in an insurance policy, the words must be interpreted in accordance with their ordinary, plain and usual meaning." Daus v. Marble, 270 N.J.Super. 241, 251, 636 A.2d 1091 (App.Div.1994); see also Gibson v. Callaghan, supra (158 N.J. at 670, 730 A.2d 1278). 827 In Daus, we addressed whether a forklift vehicle was a "motorized land conveyance" within the meaning of plaintiff's insurance policy. Daus relied upon Websters's New Collegiate Dictionary and the Oxford English Dictionary for the definition of a forklift. We found a forklift to be an example of a motorized land conveyance based upon the "commonly accepted definitions of forklift." 270 N.J.Super. at 251, 636 A.2d 1091. The use of reference books is an accepted method of ascertaining the "ordinary" meaning of terms. We found "no difficulty in concluding that the average policy holder should expect that a motorized vehicle designed to transport cargo driven by a human operator would be considered a motorized land conveyance." Ibid. The term "motorized land vehicle" has been held to be synonymous with automobiles, ATVs, and other types of recreational motor vehicles. In Allstate Ins. Co. v. Moraca, 244 N.J.Super. 5, 8, 581 A.2d 510 (App.Div.1990), a homeowners' policy excluded coverage for "bodily injury or property damages arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motorized land vehicle or trailer." (emphasis added). We treated the term "motorized land vehicle" as synonymous with automobiles and other types of vehicles. Id. at 13, 581 A.2d 510. In Salem Group v. Oliver, 248 N.J.Super. 265, 269, 590 A.2d 1194 (App.Div.1991), the policy at issue defined "recreational motor vehicle" as "a motorized golf cart, snowmobile, or any other motorized land vehicle owned by an insured designed for recreational use off public roads." (emphasis added). We held that there was "no doubt" that defendant's ATV was a motor vehicle as defined by the policy. Ibid. Here, Atlantic relied upon Websters Thesaurus to define "motorized land vehicle" and found that it refers to, among other things, motorcycles and automobiles. A thesaurus can be an appropriate source to ascertain the "ordinary, plain and usual meaning" of terms when they are undefined in a policy. Daus, supra (270 N.J.Super. at 251, 636 A.2d 1091). Further, unlike the term "household" in Gibson, "motorized land vehicle" is not susceptible to different meanings. The only interpretation of the term offered by Boddy was that a "motorized land vehicle" was "something you ran into the woods maybe like a quad." However, the "ordinary, plain and usual meaning" of the term is that it refers to a "motorized" (i.e., "motor-driven") "vehicle" (i.e., a "conveyance" such as a "motorcycle" or "automobile") that is designed for land use. See Rogets's International Thesaurus, 145-146, 214 (3d ed.1962). Thus, motorcycles and automobiles are types of "motorized land vehicles" and the judge correctly held that the term is unambiguous. III. Boddy asserts that genuine issues of material fact should have precluded summary judgment. Summary judgment must be granted if: the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2(c). To determine whether there is a genuine issue of fact, the judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d 146 (1995). On appeal, the standard is the same. We decide first whether there was a genuine issue of material fact and, if not, we decide whether the ruling at issue was correct as a matter 828 of law, Prudential Property Ins. v. Boylan, 307 N.J.Super. 162, 167, 704 A.2d 597 (App.Div.1998), taking into account usual principles of construction. Thus, insurance policy exclusions are narrowly construed and the insurer has the burden of establishing the exclusion. American Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J. 29, 41, 713 A.2d 1007 (1998). However, the "words of an insurance policy should be given their ordinary meaning, and in the absence of an ambiguity, a court should not engage in a strained construction to support the imposition of liability." Longobardi v. Chubb Ins. Co. of New Jersey, 121 N.J. 530, 537, 582 A.2d 1257 (1990); see also Cobra Products v. Federal Ins. Co., 317 N.J.Super. 392, 400, 722 A.2d 545 (App.Div.1998) ("[A] clear and unambiguous insurance policy must be enforced as written."). Although insurance policies should be construed in favor of the insured, courts "should not write for the insured a better policy of insurance than the one purchased." Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 116 N.J. 517, 529, 562 A.2d 208 (1989). While courts "should not ignore an exclusion's clear meaning, if there is another fair interpretation, the court must construe the insurance policy in favor of coverage and against the insurer, adopting the interpretation supporting coverage." Cobra Products v. Federal Ins. Co., supra (317 N.J.Super. at 401, 722 A.2d 545). However, "[t]his does not mean ... that any far-fetched interpretation of a policy will be sufficient to create an ambiguity requiring coverage." Ibid. (quoting Stafford v. T.H.E. Ins. Co., 309 N.J.Super. 97, 105, 706 A.2d 785 (App.Div.1998)). Boddy's expert's opinion was that the policy exclusion was poorly drafted and "creates a material and substantive ambiguity in the mind of the ... average named insured who purchases the policy." But, expert testimony is admissible only where it "will assist the trier of fact...." N.J.R.E. 702. It is well-established that "[e]xpert witnesses simply may not render opinions on matters which involve a question of the law." Healy v. Fairleigh Dickinson Univ., 287 N.J.Super. 407, 413, 671 A.2d 182 (App.Div.), certif. denied, 145 N.J. 372, 678 A.2d 713, cert. denied, 519 U.S. 1007, 117 S.Ct. 510, 136 L.Ed.2d 399 (1996). In Healy we stated that "once the trial court correctly determined that the interpretation of the contract language was a legal matter, [the court] was obligated to disregard the expert's opinion concerning its interpretation." Ibid. Here, the motion judge correctly held that the interpretation of the policy exclusion was a legal matter and the proffered expert opinion was of no moment. As discussed above, the motion judge correctly found the term "motorized land vehicles" to be unambiguous as a matter of law. Thus, the remaining question is whether there is another fair interpretation of the policy exclusion that supports coverage in accordance with Cobra Products. Boddy asserts that the policy exclusion should be interpreted to provide coverage for his claims because his motorcycle and automobile were "not licensed for road use." However, the full exception to the exclusion reads "except those vehicles which are not licensed for road use and are used to assist the handicapped or to service a place where you or a household member regularly lives." (emphasis added). Boddy's interpretation of the exception ignores the language "and are used to assist the handicapped or to service a place where you or a household member regularly lives." Such a strained interpretation of the policy is clearly insufficient to create an ambiguity requiring coverage under Cobra Products and would effectively write "a better policy of insurance than the one purchased." It also ignores the clear meaning of the policy. For Boddy's claims to come within the exception to the exclusion, his vehicles must not only have been unlicensed, but must also have been used to assist the handicapped or to service a place where he or a household member 829 regularly lives. Such facts were never established or advanced. The motion judge correctly rejected Boddy's attorney's suggestion that the motorcycle or automobile could be used to service Boddy's household by riding it to the hardware store to purchase something needed for the home because it could not be simultaneously unlicensed for road use and lawfully driven to the store. Moreover, there was no evidence presented that indicates Boddy's motorcycle or automobile was used to assist the handicapped. Therefore, his claims do not fall within the policy exception. Boddy failed to set forth a reasonable interpretation of the exclusion to support his claim of coverage. Even if the policy exclusion clause is "perhaps not perfectly written," as the motion judge suggested, it was correctly held to be unambiguous as a matter of law. There was no genuine issue as to any material fact and Atlantic was entitled to judgment. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995). Affirmed. NOTES [1] Cigna Property & Casualty Companies and Atlantic are related companies. For convenience we refer only to Atlantic.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509915/	760 A.2d 1 (2000) Robert ORNDOFF, Appellee, v. Sarah Beth WILSON, Appellant. Superior Court of Pennsylvania. Argued June 28, 2000. Filed August 11, 2000. Reconsideration Denied October 20, 2000. 2 James D. Elder, Pittsburgh, for appellant. Paul A. Tershel, Washington, for appellee. BEFORE: JOYCE, ORIE MELVIN and MONTEMURO[], JJ. MONTEMURO, J.: ¶ 1 This is an appeal from a judgment in favor of Appellee for $107,271.98 awarded in an action for personal injuries suffered by Appellee in an automobile accident. ¶ 2 On August 24, 1994, Appellee's van was struck broadside by Appellant's car as he attempted to make a left turn into a filling station. Appellant had stopped at a stop sign positioned on a street at an angle to the road Appellee was travelling, and had turned right to pull into traffic. While looking in her rear view mirror, she entered the roadway and apparently accelerated, colliding with Appellee as he was completing his turn into the entrance of the station. When the van overturned upon impact, Appellee's hand was pinned outside the vehicle and crushed. ¶ 3 On appeal, three issues are presented assigning error to the trial court's 1) refusal to grant a new trial on the basis that the jury verdict was against the weight of the evidence; 2) denial of Appellant's request for an evidentiary hearing on the allegation of juror misconduct; and 3) failing to grant a judgment notwithstanding the verdict[1] or a new trial on the basis that certain evidence was improperly introduced. ¶ 4 Our court will not reverse the trial court's grant or denial of a new trial unless its decision presents a gross abuse of discretion or an error of law. Mitchell v. Gravely International, Inc., 698 A.2d 618, 619 (Pa.Super.1997). "The trial court may only grant a new trial when the jury's verdict is so contrary to the evidence that it `shocks one's sense of justice.'" Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994). ¶ 5 Appellant first argues that the jury verdict was against the weight of the evidence because Appellee "was clearly negligent ... when he attempted to negotiate a left-hand turn directly into the path of the defendant's oncoming vehicle without looking." (Appellant's Brief at 20) (emphasis in original). An appellate court, by its nature, stands on a different plane than a trial court. Whereas a trial court's opinion to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court's review rests solely upon a cold record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge. Rather, our court has consistently held that appellate review of the trial court's [decision] is to focus on whether the trial judge has palpably abused his discretion, as opposed to whether the appellate court can find support in the record for the jury's verdict. Thompson v. City of Philadelphia, 507 Pa. 592, 599, 493 A.2d 669, 673 (1985). ¶ 6 After having reviewed the entire record, we find no error in the trial court's conclusion that the facts are not as Appellant would now have us believe them to be, and that the jury, as is its prerogative, accepted Appellee's version of events over that of Appellant, who conceded that at the time of the accident, she was not watching the roadway, but was looking in her rearview mirror. Given the physical evidence, location of the tire marks and radiator fluid spill, the relative positions of the vehicles immediately after the collision and 3 the testimony of both parties, we find no abuse of the trial court's discretion. ¶ 7 Next, Appellant contends that relief is due because of the trial court's refusal to hold a post trial evidentiary hearing on what she characterizes as juror misconduct, specifically the jury foreman's visit to the scene of the accident, despite instructions not to do so, which she claims affected the verdict. ¶ 8 The evidentiary rule in Pennsylvania regarding testimony of discharged jurors is "`a canon of no impeachment' with a narrow exception of `allowing post-trial testimony of extraneous influences which might have affected [prejudiced] the jury during their deliberations.' "Pittsburgh National Bank v. Mutual Life Insurance Company of New York, 493 Pa. 96, 101, 425 A.2d 383, 386 (1981) (insertion in original) (quoting Commonwealth v. Sero, 478 Pa. 440, 448, 387 A.2d 63, 67 (1978)). Our Supreme Court in Carter by Carter v. U.S. Steel, 529 Pa. 409, 604 A.2d 1010 (1992), established that given awareness of the potentially prejudicial (extraneous) material, the trial court must apply an objective test to determine how an objective typical juror would be affected by the information in light of the facts and circumstances of the particular case. However, "testimony as to the subjective reasoning processes of the jurors is inadmissible." Id. at 416, 604 A.2d at 1014. ¶ 9 Here the trial court found that the jury was never specifically instructed not to visit the accident site, since such an instruction would be useless given the frequency with which the particular intersection where the accident occurred is traveled. Moreover, the court correctly concluded that it would be improper to examine a juror as to "the effect outside influence may have had on deliberations." (Order, dated 10/21/99). ¶ 10 The circumstances herein find their closest analogue in the facts of Friedman v. Ralph Bros., Inc., 314 Pa. 247, 171 A. 900 (1934). There too the allegation was made that a juror, also the foreman, had visited the scene of the accident, had made measurements, and had reported his conclusions to his fellow jurors. While deploring the juror's actions, our Supreme Court noted that because the information he communicated was already before the jury, no prejudice could have accrued. The Court held that "[o]nly in clear cases of improper conduct by jurors, evidenced by competent testimony, should a verdict which is fully supported by the evidence be set aside and a new trial granted." Id. at 249, 171 A. at 901. ¶ 11 Here, Appellant offers five affidavits in support of her claim. Of these, three are unsigned and are therefore valueless. One, signed by Appellant's mother, not a juror, reports that the errant juror was heard to recount his visits to the accident site, made investigations, and concluded that Appellant was looking in her rear view mirror rather than in front of her as she pulled into traffic and struck Appellee's van, a fact to which Appellant testified at trial. The affiant states that she heard this information following the verdict and the discharge of the jury, thus there is nothing in the statement, which is in all events hearsay recounted by an interested person, to demonstrate that the results of the jury foreman's investigations were made known to his fellow jurors at any point prior to the jury's being discharged. The remaining affidavit states merely that the errant juror had "checked out traffic, made references to checking out the speed of the vehicles at the intersection, and that based on his investigation, he had determined that the defendant had only gotten to the point of impact by breaking the speed limit." (Affidavit of Frank Magnone at 1-2). ¶ 12 As did the Court in Friedman, we find the juror's conduct to be condemned, but that the information supposedly productive of taint was contained in evidence produced at trial and thus not prejudicial. Because the jurors had been given no instruction 4 to avoid the accident site, a matter conceded by Appellant, and because the extraneous information was not new, this is not a clear case of juror misconduct, and accordingly, the trial court herein correctly denied Appellant's request for an evidentiary hearing. ¶ 13 Finally, Appellant argues that the trial court erred in permitting Appellee to introduce evidence of his medical expenses at trial, and to recover for them. In support of her claim, Appellant relies on our Supreme Court's decision in Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983), and on the statutory prohibitions against recovery for medical expenses contained in 75 Pa.C.S.A. § 1722 of the Motor Vehicle Responsibility Act (MVRA) and precluding subrogation in Section 1720 of the MVRA. All of these authorities prohibit claims for non-economic damages arising out of the maintenance or use of a motor vehicle where the person seeking damages is eligible for insurance coverage, a matter regulated by the Commonwealth. Appellant contends that Appellee is such a person. ¶ 14 All of Appellee's medical expenses were covered by his employer's self-funded welfare and benefit plan. Such plans consist of funds contributed by both employer and employees and are regulated exclusively by ERISA, the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq.[2] ERISA, which preempts state laws relating to employee benefit plans, permits such plans to purchase stop/ loss insurance, in this instance from Trans-America Insurance Company, to cover amounts expended over and above the per employee cap set for a given year, which in the case of Appellee's employer is $17,500.00. ERISA also permits self-funded plans to contract for a right of subrogation to recoup medical expenses exceeding the cap. Appellee's medical claims, which totaled $38,217.00, never exceeded the limit in any given year. Nevertheless, Appellant's argument is that purchase of the stop/loss coverage brought the employer's plan either directly or indirectly under the supervision of the Commonwealth, circumventing the supersession clause of ERISA. ¶ 15 There is no state law on this issue, but the federal courts have addressed it directly. As the trial court here found, in Drexelbrook Engineering Co. v. The Travelers Insurance Co., 710 F.Supp. 590 (E.D.Pa.1989), aff'd. without opinion, 891 F.2d 280 (3rd Cir. Pa.1989), when confronted with the same argument as Appellant advances, the district court specifically held that purchase of excess stop/loss insurance did not destroy a plan's self-funded status. The court held that [b]ecause it is well known that most self-funded plans purchase some form of excess insurance to protect themselves against catastrophic loss, we find that Congress could not have intended that such protection would remove those plans from the umbrella of ERISA. Such a construction of ERISA would virtually emasculate the deemer clause, a result Congress clearly could not have intended. Id. at 597-98. ¶ 16 Later, the United States Supreme Court ruled in FMC Corp. v. Holliday, 498 5 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990), that Section 1720 of Pennsylvania's Motor Vehicle Responsibility Law, which precludes subrogation or reimbursement out of damages recovered by a claimant in a tort action, is preempted by ERISA. The Court held that self-insured ERISA plans were not to be considered/deemed insurance companies for purposes of ERISA, and that state laws, such as Pennsylvania's, which purported to regulate such plans were, to that extent, overridden. ¶ 17 Thereafter, Section 1722 of Pennsylvania's motor vehicle code was found to be preempted by ERISA in Travitz v. Northeast Dept. ILGWU Health and Welfare Fund, 13 F.3d 704 (3d Cir.(Pa.)1994), where a self-funded plan was also involved. There the circuit court reasoned that Section 1722 had a "connection" to ERISA, which is the equivalent of being "related to" an employee benefit plan under the preemption clause of the statute. As such, Section 1722 had the effect of subjecting plan administrators to conflicting state regulations, the specific evil ERISA was intended to address. Accordingly, Section 1722 was found to be inapplicable to self-insured ERISA plans. ¶ 18 These decisions effectively counter the state authorities relied upon by Appellant. Moreover, the federal authority Appellant advances to support her position is similarly unpersuasive. She insists that the result in this matter should be dictated by the holding in Northern Group Services v. Auto Owners Insurance Co., 833 F.2d 85 (6th Cir. Mich.1987). In that case the circuit court held that once stop/loss elements were introduced into a self-funded plan, the plan was no longer self-funded. The court attempted to narrow the scope of the preemption clause on grounds that to exclude from state supervision plans with coordination of benefits provisions would encroach on traditional state prerogatives in the regulation of insurance. However, Northern was, in effect, overruled by the United States Supreme Court's holding in FMC, supra. The Supreme Court, in reviewing the Third Circuit's decision in FMC, noted its reliance on the rationale in Northern, that is, that "`the deemer clause [was] meant mainly to reach backdoor attempts by states to regulate core ERISA concerns in the guise of insurance regulation.'" FMC, 498 U.S. at 56, 111 S.Ct. at 406, 112 L.Ed.2d at 363 (quoting FMC Corp. v. Holliday, 885 F.2d 79, 86 (3rd Cir. Pa.1989)). ¶ 19 In reversing the lower court decision, the Court reiterated that the breadth of the preemption clause in ERISA encompassed subjects beyond those specifically enumerated in the text of the statute. Rather, the clear intent of Congress was to include within the ambit of preemption all matters "connected to," "related to," "referred to" or otherwise concerned with employee benefit plans, not merely those named. This invalidation of Northern's holding insofar as it concerned self-insured ERISA plans was specifically confirmed in Auto Club Insurance v. Health & Welfare Plans, 961 F.2d 588 (6th Cir. Mich.1992). ¶ 20 Judgment affirmed. NOTES [] Retired Justice assigned to Superior Court. [1] Correction of errors in the admission or exclusion of evidence is the subject of a motion for a new trial, Greer v. Bryant, 423 Pa.Super. 608, 621 A.2d 999 (1993), not of a judgment notwithstanding the verdict. [2] 29 U.S.C.A. § 1144(a) (preemption clause) states in relevant part: Except as provided in subsection (b) of this section [the saving clause] the provisions of this title and title IV shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ... Section 1144(b)(2)(A) (saving clause) states in relevant part: Except as provided in subparagraph (B)[the deemer clause], nothing in this title shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. Section 1144(b)(2)(B) (deemer clause) states in relevant part: Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies, [or] insurance contracts ...	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509938/	7 F.2d 796 (1925) FRANKEL v. WOODROUGH, District Judge. No. 282. Circuit Court of Appeals, Eighth Circuit. August 11, 1925. Albert E. Frankel, of Leavenworth, Kan., in pro. per. James C. Kinsler, U. S. Atty., of Omaha, Neb., for Judge Woodrough. Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge. STONE, Circuit Judge. This is an application for leave to file, in forma pauperis, a petition for a writ of mandamus against the Hon. Joseph W. Woodrough, Judge of the United States Court for the District of Nebraska. The petitioner sets forth the pendency of an indictment (No. 2884) against him in that district; that he has filed a motion to quash the indictment and a motion for a "speedy and immediate trial"; that he has been in custody more than three terms of court; and 797 that such judge refuses to consider such motions. To the petition are attached copies of the above motions. This character of action (an original writ) is somewhat unusual in Courts of Appeals and it is proper that this court examine its jurisdiction to entertain it. The purpose of the petition is to compel the determination of a criminal action against petitioner which, he avers, the trial court will not hear although it is its duty to do so. The jurisdiction of the Courts of Appeals is purely appellate and they have no original jurisdiction except such as is necessary to aid, protect or enforce their appellate jurisdiction. Whitney v. Dick, 202 U. S. 132, 26 S. Ct. 584, 50 L. Ed. 963; United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129. Where a trial court refuses without proper cause to try an action pending therein, appellate jurisdiction is affected and prevented because such jurisdiction cannot become operative and effective until a final order, judgment or decree is entered. Therefore, in such instances, the jurisdiction to issue original writs in aid of the appellate jurisdiction exists. McClellan v. Carland, 217 U. S. 268, 279, 30 S. Ct. 501, 54 L. Ed. 762; Schendel v. McGee, 300 F. 273, 277 (8th C. C. A.); Greyerbiehl v. Hughes Elec. Co., 294 F. 802, 805 (8th C. C. A.); Barber Asphalt Co. v. Morris, 132 F. 945, 953 (8th C. C. A.) 66 C. C. A. 55, 67 L. R. A. 761; Jefferson Standard Life Ins. Co. v. Keeton, 292 F. 53, 56 (4th C. C. A.). The motion to quash, attached to this petition, sufficiently shows that appellate jurisdiction from conviction in this criminal action would be to this court; therefore, the general jurisdiction exists in this court to entertain a mandamus petition having for its purpose to compel a trial court to proceed to the determination of a pending action where it is under a legal duty to so proceed. However, it is elementary that mandamus cannot be used to control the lawful discretion of a trial court either in what its decision shall be or (where such discretion exists) in whether it shall move to a decision. United States v. Lamont, 155 U. S. 303, 308, 15 S. Ct. 97, 39 L. Ed. 160. Moreover, as stated in the Lamont Case at page 308 (15 S. Ct. 98): "The duty to be enforced by mandamus must not only be merely ministerial, but it must be a duty which exists at the time when the application for the mandamus is made. Thus in the case of Ex parte Rowland, 104 U. S. 604, 612 [26 L. Ed. 861], this court, speaking through Mr. Chief Justice Waite, said: `It is settled that more cannot be required of a public officer by mandamus than the law has made it his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one.' "Moreover, the obligation must be both peremptory, and plainly defined. The law must not only authorize the act, Commonwealth v. Boutwell, 13 Wall. 526 [20 L. Ed. 631], but it must require the act to be done. `A mandamus will not lie against the Secretary of the Treasury unless the laws require him to do what he is asked in the petition to be made to do,' Reeside v. Walker, 11 How. 272 [13 L. Ed. 693]; see also Secretary v. McGarrahan, 9 Wall. 298 [19 L. Ed. 579]; and the duty must be `clear and indisputable.' Knox County v. Aspinwall, 24 How. 376 [16 L. Ed. 735]." Whether the duty of the trial court is of the character above quoted may be determined upon the return to a rule to show cause why the writ should not issue or, from the face of the tendered pleadings, on an application for leave to file the petition for the writ. Ex parte Harding, 219 U. S. 363, 31 S. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392. Therefore, it is our duty to examine the pleadings tendered here to ascertain whether they leave in doubt the duty of this court to deny leave to file. Ex parte Harding, 219 U. S. 363, 369, 21 S. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392. In the motion for speedy and immediate trial, attached to this petition, is the statement, "that after the arraignment and plea of not guilty to the above indictment, defendant was tried and convicted in this court for case No. 2027. That because of the pending of this indictment No. 2884 defendant is now deprived of his right to apply for a parole, as provided by the Act of Congress approved June 25, 1910, as amended." Thus it appears clearly that the petitioner is now confined in the penitentiary under conviction for another crime against the United States. He insists that he has a present legal right to be taken therefrom and tried under the indictment pending before Judge Woodrough. The Constitution (Amendment, article 6) secures "the right to a speedy and public trial" in all criminal prosecutions under federal law. As said in Beavers v. Haubert, 198 U. S. 77 at page 87, 25 S. Ct. 573, 49 L. Ed. 950. "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It 798 secures rights to a defendant. It does not preclude the rights of public justice." Speed in trying accused persons is not of itself a primal and separate consideration. Justice, both to the accused and to the public, is the prime consideration. Such speed is merely an important element or attribute of justice. If either party is forced to trial without a fair opportunity for preparation, justice is sacrificed to speed. But when both parties have had fair opportunity for preparation, then either has a legal right to demand a trial as soon as the orderly conduct of the business of the court will permit. The clear inference from the petition presented here is that the court refuses to proceed to trial because this petitioner is in the penitentiary. It is true that one complaining of delay must affirmatively demand his right of trial (Phillips v. United States, 201 F. 259, 262, 120 C. C. A. 149, this court; Worthington v. United States, 1 F.[2d] 154, 7th C. C. A.), but that has been and is being done by this petitioner. Therefore, the bald question presented is whether an accused can be denied trial while and because he is serving sentence on another conviction. We think the rule in the federal courts is settled that imprisonment has no such effect. Ponzi v. Fessenden, 258 U. S. 254, 261, 264, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879; Lamar v. United States, 260 U. S. 711, 43 S. Ct. 251, 67 L. Ed. 476 (memorandum opinion affirming Ex parte Lamar [C. C. A.] 274 F. 160, 170, 24 A. L. R. 864); also see Collins v. Loisel, 262 U. S. 426, 431, 43 S. Ct. 618, 67 L. Ed. 1062, and Ex parte Sichofsky, 273 F. 694 (affirmed [C. C. A.], 277 F. 762 sub nom. Sichofsky v. United States). The Constitutions of most of the states have provisions similar to the Sixth Amendment and many of the states have statutory definitions of the time or number of court terms within which criminal accusations must be tried. Such statutes provide usually for the discharge of accused unless the trial is within the limits so defined. The United States has no such statutory provisions and we think an accused would not be entitled to a discharge even though he were denied a speedy trial within the meaning of the Constitution. His right and only remedy would be to apply to the proper appellate court for a writ of mandamus to compel trial. The question before us has been before several of the state courts. The great weight of authority is that imprisonment under sentence does not suspend the right to speedy trial but that either the state or the convict can insist thereon. 16 C. J. 442, notes 35 and 36, and cases there cited; People v. Hong Ah Duck, 61 Cal. 387; People v. Majors, 65 Cal. 138, 147, 3 P. 597, 52 Am. Rep. 295; State v. Wilson, 38 Conn. 126; Kennedy v. Howard, 74 Ind. 87; Huffaker v. Commonwealth, 124 Ky. 115, 98 S. W. 331, 14 Ann. Cas. 487; Rigor v. State, 101 Md. 465, 471, 61 A. 631, 4 Ann. Cas. 719; Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am. St. Rep. 488; State v. Connell, 49 Mo. 282; Ex parte Ryan, 10 Nev. 261; Ex parte Tramner, 35 Nev. 56, 126 P. 337, 41 L. R. A. (N. S.) 1095; Thomas v. People, 67 N. Y. 218; Arrowsmith v. State, 131 Tenn. 480, 175 S. W. 545, L. R. A. 1915E, 363; Coleman v. State, 35 Tex. Cr. R. 404, 33 S. W. 1083; Gaines v. State (Tex. Cr. R.) 53 S. W. 623; Brown v. State, 50 Tex. Cr. R. 114, 95 S. W. 1039; People v. Flynn, 7 Utah, 378, 26 P. 1114; Ruffin v. Commonwealth, 21 Grat. (62 Va.) 790; Clifford v. Dryden, 31 Wash. 545, 72 P. 96; Dudley v. State, 55 W. Va. 472, 47 S. E. 285; State v. Keefe, 17 Wyo. 227, 98 P. 122, 22 L. R. A. (N. S.) 896, 17 Ann. Cas. 161. Also extended notes in 22 L. R. A. (N. S.) 896; 41 L. R. A. (N. S.) 1095; L. R. A. 1915E, 363. From the standpoint of the accused, the logic of this view is well expressed in State v. Keefe, 17 Wyo. 227, 98 P. 122, 22 L. R. A. (N. S.) 896, 17 Ann. Cas. 161, as follows: "The right of a speedy trial is granted by the Constitution to every accused. A convict is not excepted. He is not only amenable to the law, but is under its protection as well. No reason is perceived for depriving him of the right granted generally to accused persons, and thus in effect inflict upon him an additional punishment for the offense of which he has been convicted. At the time of defendant's trial upon the one information, he was under the protection of the guaranty of a speedy trial as to the other. It cannot be reasonably maintained, we think, that the guaranty became lost to him upon his conviction and sentence, or his removal to the penitentiary. Possibly in his case, as well as in the case of other convicts, a trial might be longer delayed, in the absence of a statute controlling the question, than in the case of one held in jail merely to await trial, without violating the constitutional right, for an acquittal would not necessarily terminate imprisonment. However, the purpose of the provision against an unreasonable delay in trial is not solely a release from imprisonment in the event of acquittal, but also a release 799 from the harassment of a criminal prosecution and the anxiety attending the same; and hence an accused admitted to bail is protected as well as one in prison. Moreover, a long delay may result in the loss of witnesses for the accused as well as the state, and the importance of this consideration is not lessened by the fact that the defendant is serving a sentence in the penitentiary for another crime." Another consideration bears directly upon this question. It would seem obvious that this constitutional right of the accused to speedy trial should exist if there is a right on the part of the state to force him to trial during such imprisonment. This right of the state is announced in many of the above citations and the compelling reasons therefore are well stated to be loss of evidence through delay during the imprisonment, resulting in failure of justice; effect on prison discipline if convicts could not be punished for crimes committed while in prison until after such imprisonment ended; probable or entire escape from punishment for serious or capital offenses where the existing prison term is lengthy or for life. Cases illustrative of the effect upon prison discipline and upon possible escape from punishment are: less than life term prisoner killing warden (State v. Wilson, 38 Conn. 126) or other person (Kennedy v. Howard, 74 Ind. 87; Thomas v. People, 67 N. Y. 218; Ruffin v. Commonwealth, 21 Grat. [62 Va.] 790) during imprisonment; life term prisoner killing fellow convict (People v. Hong Ah Duck, 61 Cal. 387; Huffaker v. Commonwealth, 124 Ky. 115, 98 S. W. 331, 14 Ann. Cas. 487; Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am. St. Rep. 488; State v. Connell, 49 Mo. 282; Brown v. State, 50 Tex. Cr. R. 114, 95 S. W. 1039); murder committed before imprisonment for life for a different offense (People v. Majors, 65 Cal. 138; Ex Parte Tramner, 35 Nev. 56, 126 P. 337, 41 L. R. A. [N. S.] 1095). If the contrary doctrine were true, a life prisoner could commit crimes, even murder, in the prison with entire immunity and impunity. We think the law is that a prisoner serving sentence for violating a law of the United States is not, during such imprisonment, immune from nor can he be denied the right to trial for other offenses against the United States. This view has, by direct inference, been recognized by Congress in the "good conduct" statute (Act March 3, 1875, 18 Stat. 479 [Comp. St. § 10531]) where it is provided "that, if during the term of imprisonment the prisoner shall commit any offense for which he shall be convicted by a jury, all remissions theretofore made shall be thereby annulled." It may be suggested that such a rule will permit the convict partially to escape punishment by enabling him to serve several sentences, on different indictments, at the same time. This is not necessarily true. Cumulative sentences are permissible under federal practice (Blitz v. United States, 153 U. S. 308, 317, 14 S. Ct. 924, 38 L. Ed. 725; Howard v. United States, 75 F. 986, 991, 21 C. C. A. 586, 34 L. R. A. 509 [6th C. C. A.]), and sentences on convictions during imprisonment may be expressly made to commence at the end of the existing imprisonment (Ponzi v. Fessenden, 258 U. S. 254, 265, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879; Rigor v. State, 101 Md. 465, 469, 61 A. 631, 4 Ann. Cas. 719; Ex parte Ryan, 10 Nev. 261; Ex parte Tramner, 35 Nev. 56, 126 P. 337, 41 L. R. A. [N. S.] 1095; Thomas v. People, 67 N. Y. 218, 226; Henderson v. James, 52 Ohio St. 242, 254, 39 N. E. 805, 27 L. R. A. 290; People v. Flynn, 7 Utah, 378, 382, 26 P. 1114; Clifford v. Dryden, 31 Wash. 545, 72 P. 96; State v. Finch, 75 Kan. 282, 89 P. 922, 20 L. R. A. [N. S.] 273; Kite v. Commonwealth, 11 Metc. [Mass.] 581, 585; 1 Bish. New Crim. Law [8th Ed.] § 953; 16 C. J. 1306). This opinion is expressly limited to instances of prisoners confined for violations of federal laws and trial, while so confined, on accusations for violations of federal laws. Where it is a matter of a federal prisoner accused under a state law or vice versa, other legal considerations are present which are not here involved or considered such as the applicability of the Sixth Amendment (Brown v. New Jersey, 175 U. S. 172, 174, 20 S. Ct. 77, 44 L. Ed. 119; Maxwell v. Dow, 176 U. S. 581, 586, 20 S. Ct. 448, 44 L. Ed. 597; West v. Louisiana, 194 U. S. 258, 262, 24 S. Ct. 650, 48 L. Ed. 965; Ex rel. Lloyd v. Dollison, 194 U. S. 445, 447, 24 S. Ct. 703, 48 L. Ed. 1062; Ughbanks v. Armstrong, 208 U. S. 481, 487, 28 S. Ct. 372, 52 L. Ed. 582) and conflict of jurisdiction of different sovereignties (Taylor v. Taintor, 16 Wall. 366, 370, 21 L. Ed. 287; Taylor v. Carryl, 20 How. 583, 597, 15 L. Ed. 1028; Ponzi v. Fessenden, 254 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879; Kline v. Burke Construction Co., 260 U. S. 226, 230, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077; United States v. Lanza, 260 U. S. 377, 385, 43 S. Ct. 141, 67 L. Ed. 314). Also see R. S. § 753, and Carfer v. Caldwell, 800 200 U. S. 293, 296, 26 S. Ct. 264, 50 L. Ed. 488. Our conclusion is that the petitioner is entitled to have his petition filed and to a rule to show cause why the writ should not issue as prayed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509977/	21 F.2d 440 (1927) AMERICAN WOOD PRODUCTS CO. et al. v. CITY OF MINNEAPOLIS et al. District Court, D. Minnesota, Fourth Division. September 8, 1927. 441 George T. Simpson, of Minneapolis, Minn., for complainants. Neil M. Cronin and R. S. Wiggin, both of Minneapolis, Minn., for defendants. JOHN B. SANBORN, District Judge. The evidence was taken, the case argued and held under advisement, awaiting the decision of the United States Supreme Court in cases involving the validity of zoning ordinances generally, and was finally reargued and submitted on the 1st day of September, 1927. The action is, in effect, a consolidation of four separate actions. The complainants are all residents of and property owners in the city of Minneapolis. Some forty-five years ago, there was constructed on the east bank of the Mississippi river by the Chicago, Milwaukee & St. Paul Railway Company a branch line of railroad connecting what is known as the Milwaukee Short Line with the line of the Great Northern to the north. This branch line is entirely within the city limits of Minneapolis. At the time it was constructed, the part of the city through which it ran was almost entirely undeveloped and largely uninhabited. This line of track is known as the "East Side spur." During recent years, it has been heavily used because of the business routed over it from connecting lines of the Milwaukee and also because of the industries which have grown up beside it, particularly near its northern terminus. The complainant American Wood Products Company located on the easterly side of this spur near its southern terminus in 1913 and established a wood-working factory. At the time of its location, an ordinance of the city of Minneapolis designated 442 this property for industrial use. The complainant has substantial factory buildings upon its property, has built up a successful and growing business, and needs to expand its facilities. On April 7, 1924, the city of Minneapolis passed a zoning ordinance restricting the district within which this property is located for multiple dwellings. The effect of this ordinance was not to prohibit the existing use of the factory of the American Wood Products Company, but to prevent the use of any of its unimproved property for the purpose of building other factory buildings or additions to its present factory. The complainant applied to the building inspector of the city of Minneapolis for a permit to erect an addition to its factory, which was refused by him because of the ordinance. The highest and most valuable use to which the real estate owned by the complainant may be put is industrial use, because of the fact that it is situated on the spur track of the Milwaukee Road. For the same reason, it has little value as a site for multiple dwellings, and the effect of the designation made by the zoning ordinance is to greatly reduce the value of the complainant's property. The property contains some 32,000 square feet, or five city lots, and there is evidence which would justify the conclusion that it was worth about $12,800 for industrial purposes, and not to exceed $1,500 for multiple dwelling purposes, that the present buildings on the property are worth in the neighborhood of $22,000, and that these buildings are useful only for industrial purposes and cannot be used for any other. The complainant T. Benson owns vacant trackage property upon this same spur, north of the property of the American Wood Products Company and on the same side of the track. He has applied for a permit for a building to be used as a factory. His application was denied because of the ordinance. His property is also substantially more valuable for industrial purposes than for multiple dwelling purposes, and the effect of the ordinance as to him is to seriously depreciate the value of his property. He has some eighteen lots, containing 90,000 square feet, and the evidence most favorable to him would justify a conclusion that it was worth some $36,000 for industrial purposes, and not over $5,400 for multiple dwelling purposes. The property of the complainant Northwestern Feed Company also contains about 90,000 square feet, and has upon it a building used as a feed mill and for the storage of feed and grain, which cost about $30,000. It is trackage property also on the East Side spur, to the north of the property of the complainant T. Benson, and on the same side of the track. The evidence most favorable to the complainant would indicate the value of this property for industrial purposes to be $40,500, and possibly $3,600 for multiple dwelling purposes. The ordinance has the same effect upon it which it has upon the property of the American Wood Products Company. The complainant Northwestern Feed Company also has applied for a permit for a building to increase its facilities, which was refused because of the zoning ordinance, and the evidence indicates that, by reason of the fact that it has not been able to increase its plant, it was obliged to spend some $30,000 during the year 1925 for additional storage space in connection with its business. The evidence also shows that almost directly to the west and across the track is property of much the same class and character, which is zoned as "light industrial," and which is occupied and used by an oil company for the purpose of storing oil and gasoline. The property of the complainant Lyle Culvert & Road Equipment Company is not directly on the tracks of the East Side spur, but is close to them, and there is a switch owned by it which connects it with the spur. It has upon it no substantial improvements, and is, in effect, vacant and unimproved land. Like the property of the other complainants, its most valuable use would be for industry, and it has a very substantially less value for other uses. It comprises eighteen lots, which this complainant values for industrial purposes at $50,000, and not to exceed $3,600 for multiple dwelling purposes. The side track into the property was built by the complainant at a cost of $4,000, in anticipation of industrial development. It also has applied to the building inspector of the city of Minneapolis for a permit to establish a factory upon its property, which also has been refused because of the zoning ordinance. The effect of the ordinance upon the value of its property is substantially the same as it is with respect to the property of the other complainants. In my judgment, the value of the property of the various complainants for industrial purposes is from five to eight times as great as it would be for dwelling house purposes, because, while the tracks of the Milwaukee Railway Company are an advantage to industry, it is a well-known fact that people do not care to live on premises directly adjoining the heavily operated tracks of a 443 railroad. The noise, the dirt, the danger to children, directly affect the value of such property for such a use. The general situation of this property is a peculiar one. Slightly to the east lies the city limits of the city of St. Paul, and the use of property slightly to the east and in St. Paul is a heavy industrial use, and it is part of what is known as the Midway District. To the north, University avenue is an industrial street, and north of that and east of the spur, the territory is given up largely to industry. To the west of this property and between the spur and the Mississippi river, the property is mainly residential in character, and it is but a short distance from the River boulevard, which is devoted principally to handsome single residences. Between the spur and the city limits of the city of St. Paul, in the district where the complainants' properties are situated, the territory is also largely residential, and there has been no considerable development of industry. The University of Minnesota is located in the city of Minneapolis on the east side of the Mississippi river, within a short distance of the district in which the complainants' properties lie. Within recent years there has been a tremendous growth of that institution, and the housing problem for the faculty and students has increased. Much of the property which formerly was used for dwelling houses near the University has been taken over by the state, the dwelling houses removed, and University buildings built. It is, of course, necessary that there should be a district surrounding the University for the housing of those who are connected with it, and the problem is one which the city of Minneapolis has to meet. The evidence in this case shows that the planning commission, which formulated the plan for the zoning of the city, first recommended that the property of the complainants be zoned as "light industrial" property. It also indicates that the Board of Regents of the State University desired to have no further increase of industry along the East Side spur in the locality where the complainants have their property, and that it was probably due to their attitude that this property was finally zoned as "multiple dwelling" property. The complainants have brought this suit, asking the court to declare that the acts of the Legislature, pursuant to which the zoning ordinance of Minneapolis was passed, are void; that the ordinance has the effect of depriving the complainants of their property without due process of law, contrary to articles 5 and 14 of the Constitution of the United States, and to the Constitution of the state of Minnesota; that it deprives the complainants of the equal protection of the law; and that it is so unreasonable as to constitute a taking of the complainants' property for a public purpose without just compensation, contrary to the Constitution of the United States and of the state of Minnesota. Chapter 217, Laws of Minnesota 1921, provided that, for the purpose of promoting the public health, safety, order, convenience, prosperity, and general welfare, any city in the state of Minnesota having more than 50,000 inhabitants might, by ordinance, regulate the location, size, and use of buildings therein, might make different regulations for different districts thereof, and might acquire or prepare and adopt a comprehensive city plan for the city or any portion thereof for the future physical development and improvement of the city, and might thereafter alter the regulations or plan; such alterations, however, to be made only after the affirmative vote of a majority of the members of the governing body. In 1923, this chapter was amended by chapter 364, Laws of Minnesota for 1923, so that the alterations of the plan might only be made "after two-thirds of the property owners within 100 feet of the real estate affected acquiesced therein and after the affirmative vote in favor thereof of two-thirds of the members of the governing body of such city." It is contended that the Enabling Act, as amended, is void because property owners are given some voice in the matter of making alterations in the zoning plan, which is purely a legislative matter, and that therefore there is an unauthorized delegation of legislative power. The city's position is that the acquiescence of the property owners is a mere jurisdictional requirement, and is no different than as though the law provided that such alterations should be made only upon application of certain interested property owners. It is unnecessary to decide this question, however, because, if chapter 364, Laws of 1923, is invalid, there is still left chapter 217, Laws of 1921, which contains ample authority for the ordinance in question. Since the decision in the case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, by the Supreme Court of the United States, any question as to the constitutionality of such a zoning ordinance as is before the court in this 444 case, "in its general scope," has been laid to rest. The constitutionality of this very ordinance was sustained in the case of Berry v. Houghton, 47 S. Ct. 474, 71 L. Ed. ___. In the Village of Euclid Case, Mr. Justice Sutherland, speaking of such ordinances, says (page 387 [47 S. Ct. 118]): "The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities." The court then goes on to say (page 388 [47 S. Ct. 118]): "Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." See, also, Zahn v. City of Los Angeles, 47 S. Ct. 594, 71 L. Ed. 1074. The only question in this case, then, is whether the ordinance with respect to the complainants' property is clearly arbitrary and unreasonable, so that it amounts to an improper exercise of the police power and the taking of the property of the complainants without due process of law and without compensation. The mere fact that the ordinance is harsh and seriously depreciates the value of the complainants' property is not enough to establish its invalidity. The case of Hadacheck v. Sebastian, 239 U. S. 394, 36 S. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927, presents an extreme case of individual hardship caused by the exercise of the police power, and yet there the ordinance which worked such hardship was sustained. [5] It cannot be said that the plants of the American Wood Products Company and the Northwestern Feed Company, or the proposed factories of Benson and the Lyle Culvert & Road Equipment Company are or would be nuisances in the offensive sense of that word, and, after all, no matter how undesirable they are or might be in a residence section, they could add little to the offensiveness of the East Side spur. They are, however, of much the same character as the brick plant in the Hadacheck Case. My feeling about the situation is that, while the public convenience or at least the convenience of that portion of the public living in the section of the city where these properties lie authorized the zoning of the property as "multiple dwelling," the ordinance has seriously affected the value of this property, and is, from a moral standpoint at least, an unjust and unfair way for the city to limit the use of this property. Under chapter 128, Laws of 1915 (section 1618, etc., General Statutes 1923), the city of Minneapolis could have established a restricted residence district to include this property and could have secured to the complainants just compensation for any injury done. The police power has in this instance been used for the purpose of depriving the complainants of the most valuable use of their property, for the public benefit and convenience, without compensation. As a matter of justice and good morals, it would seem that a city should pay for damages occasioned by an ordinance of this kind, where no substantial present injury is being done to the public by the existing use, and where the classification prohibiting the use is largely a matter of convenience and not of necessity. The theory of zoning ordinances is good. In my opinion, in practical operation, they must almost necessarily give far too little consideration to the rights of many individual property owners, and will in many cases, in practical effect, seriously depreciate the value of property, for which depreciation an owner, in common decency, should be compensated either by the municipality or by those whose property is specially benefited. It is evident, however, that zoning ordinances which, in theory at any rate, are carefully prepared by planning commissions and adopted after careful study by city councils, will not be benefited by having the judges of the federal courts substitute their judgment for that of the legislative bodies and attempt to revise them with respect to individual cases. See Zahn v. City of Los Angeles, supra. Because of their very nature, there have got to be lines drawn which are more or less arbitrary. Who, for instance, can tell with any degree of certainty where *445 a "single dwelling" district should end and a "multiple dwelling" district begin, or what the limits of a "light industrial" district should be or the limits of a "heavy industrial" district? The attitude which the Supreme Court takes in connection with ordinances of this general character is clearly shown in the case of Cusack Co. v. Chicago, 242 U. S. 526, 530, 37 S. Ct. 190, 192 (61 L. Ed. 472, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594), in which it was said: "The principles governing the exercise of the police power have received such frequent application and have been so elaborated upon in recent decisions of this court, concluding with Armour & Co. v. North Dakota, 240 U. S. 510, 514 [36 S. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548], that further discussion of them would not be profitable, especially in a case falling as clearly as this one does within their scope. We therefore content ourselves with saying that, while this court has refrained from any attempt to define with precision the limits of the police power, yet its disposition is to favor the validity of laws relating to matters completely within the territory of the state enacting them, and it so reluctantly disagrees with the local legislative authority, primarily the judge of the public welfare, especially when its action is approved by the highest court of the state whose people are directly concerned, that it will interfere with the action of such authority only when it is plain and palpable that it has no real or substantial relation to the public health, safety, morals, or to the general welfare. Jacobson v. Massachusetts, 197 U. S. 11, 30 [25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765]. And this, for the reasons stated, cannot be said of the ordinance which we have here." In spite of the fact that I think that the city has dealt unjustly with these complainants, and particularly the American Wood Products Company and the Northwestern Feed Company, who had improved their property long prior to the going into effect of this ordinance, and who had no doubt helped to build up the section of the city in question, I cannot say that it is "plain and palpable" that the restrictions placed upon the use of their property by the city "has no real or substantial relation to the public health, safety, morals, or to the general welfare," or that "the validity of the legislative classification for zoning purposes" is not "fairly debatable." It follows that the bill of complaint must be dismissed. It is so ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509984/	21 F.2d 285 (1927) KANNER et al. v. UNITED STATES. No. 380. Circuit Court of Appeals, Second Circuit. August 8, 1927. 286 Irving E. Kanner, of New York City (Max D. Steuer, of New York City, Harold H. Corbin, of Saratoga Springs, and Edward J. Bennett, of Brooklyn, of counsel), for plaintiffs in error. Charles H. Tuttle, U. S. Atty., of New York City (Ben Herzberg and Kenneth F. Simpson, Asst. U. S. Attys., both of New York City, of counsel), for the United States. Before MANTON, L. HAND, and SWAN, Circuit Judges. 287 SWAN, Circuit Judge (after stating the facts as above). It is urged that the indictment is wholly insufficient to support the conviction, because it does not set forth the offense with sufficient particularity to meet the requirements of criminal pleading. The point was raised at the beginning of the trial by a motion to dismiss. The defendants' contention is supported by United States v. Lynch (D. C.) 11 F.(2d) 298. On the other hand, Greenbaum v. United States, 280 F. 474 (C. C. A. 6), and Keslinsky v. United States, 12 F.(2d) 767 (C. C. A. 5), are cited by the prosecutor to show that the indictment was good as a pleading. It is true that in each of those cases a bill of particulars, or its equivalent, was given. But a bill of particulars cannot cure an indictment fundamentally defective. Collins v. United States, 253 F. 609 (C. C. A. 9). In the Greenbaum Case the court does not seem to have relied upon the bill of particulars, for no mention of it is made in the opinion. It is true, also, that there the approximate value of the property was stated. But the value of the property concealed is not an essential part of the crime. The statement of it is therefore surplusage. 3 Bishop, New Criminal Procedure (2d Ed.) § 751 (2). Hence its inclusion in the indictment could not save the pleading if the specification of the property concealed was insufficient without it. In the Keslinsky indictment no value was stated, but the goods concealed were described as "certain goods, wares, moneys, merchandise, shoes, and personal property belonging to said bankrupt estate." This is scarcely more specific than in the case at bar. Frequently, in statutory offenses, an indictment charging the crime in the substantial words of the statute has been held sufficient, though even in such cases the charge must be set forth so as reasonably to inform the defendant of the nature of the accusation against him. United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819. The purpose of the rule being to enable the defendant to prepare his defense, it would seem that, if ever particularity may be dispensed with, it should be so in the crime of concealing assets. The crime is one which is peculiarly within the bankrupt's own knowledge, and one which may be committed under circumstances which render impossible a description of the assets concealed. Where the very essence of the crime is secreting property, how can it be necessary to allege knowledge of that of which the defendant's own acts prevent any knowledge? It is enough to excuse particularity of description of the manner of committing the offense for the grand jurors to allege that they do not know the details. Durland v. United States, 161 U. S. 306, 16 S. Ct. 508, 40 L. Ed. 709; United States v. Claflin, Fed. Cas. No. 14,798, 13 Blatchf. 178. In the case at bar the indictment charges concealment of "moneys and properties belonging to the estate in bankruptcy," and the inducement makes it reasonably clear that the property was in part at least "dress goods." All that the grand jurors knew was what the accountant, Adler, told them, and the exact amount of the assets concealed was unknown to him, as was also the more particular description of the property. The proof itself was inferential, and did not disclose what pieces of dress goods were concealed, or where they were concealed, or whether they had not been turned into cash, which was concealed. No one but the defendants knew what the concealed property was, or in what form it was, or what they had done with it. The fact of concealment was inferable from the large discrepancy between the merchandise which the books showed to be on hand and what was actually found, coupled with the defendants' suspicious conduct, for example, in camouflaging the stock on their shelves and withdrawing money on the eve of bankruptcy. Such a discrepancy has been recognized as a link in the chain of proof of concealment in Stern v. United States, 193 F. 888, 892 (C. C. A. 3); United States v. Greenbaum (D. C.) 252 F. 259, 265; Frieden v. United States, 5 F.(2d) 556 (C. C. A. 4). The utmost that the grand jurors could have alleged was that the defendants concealed dress goods of the approximate value of $100,000, or the proceeds of such goods. This would have added nothing of substance. An allegation of the amount of the concealment, is not, as has been already stated, a material allegation. A specification of the facts known to the grand jurors would not have been definite enough to give the defendants any information as to the assets they are charged with concealing. We are satisfied that the indictment was sufficient. It is urged, also, that there was a fatal variance between the allegations in the indictment and the proof at the trial, in that the allegation of the grand jurors' lack of knowledge was proven untrue. This assertion is based on the testimony that Adler appeared before the grand jury and presented to them the facts and figures to which he testified on the trial. All this shows is that the grand jury knew the approximate amount of the *288 concealment. For the reasons already given the amount is not important. See United States v. Stern (D. C.) 186 F. 854, 856. Nor does it appear that they knew the "exact amount," nor a "more particular description," of the assets concealed. The courts do not view with favor a claim of variance in the allegation of ignorance on the part of the grand jurors; the variance should appear positively. Mitchell v. United States, 229 F. 357, 362 (C. C. A. 2). The refusal of the trial judge to grant the defendants' motion for a bill of particulars is alleged as error. The particulars demanded were (1) the exact date of each and every concealment of assets; (2) a description in detail of each asset alleged to have been concealed, with the exact date of the concealment thereof; (3) the act or acts as to each concealment, with the date thereof; and (4) with respect to the charge of concealing money, the amount of money in each instance, and whether in the form of cash or check, with the dates, etc. We have already alluded to the impossibility of giving the details asked for in the first three demands. The prosecution did not know them. At to the fourth demand it did know that certain sums had been withdrawn by checks payable to the defendants, and these checks were put in evidence against them. We cannot regard the failure to disclose the checks as a serious enough prejudice to justify a reversal. The application for a bill of particulars is addressed to the discretion of the court, and there is nothing in the record to indicate that the defendants were taken by surprise or prejudiced in their substantial rights. Unless this appears, the court's denial of the application should not be disturbed. See Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545, Horowitz v. United States, 262 F. 48 (C. C. A. 2). Moreover, the checks were only incidents to the main proof which depended upon the shortage in merchandise. The checks did not cover all the possible money concealed. Nobody could tell in what form the concealed assets were; probably in fact the goods had been sold and their proceeds were concealed. While there may have been too broad a denial of the request for particulars, we cannot see that its effect was so prejudicial as to require reversal of the conviction. The books of the bankrupt were last in the custody of the government, but were lost before trial. Counsel for the defendants objected throughout the trial to the introduction of secondary evidence of their contents, and the admission of such evidence is now pressed upon us as error. The loss of the books was sufficiently proven. Therefore we see nothing in the contention that secondary proof of their contents was improper. Two errors in the court's refusals to charge are complained of. One was the refusal to charge that, if the production of the books would have enabled the defendants to establish what they did with all the assets claimed to have been concealed, that fact may be considered by the jury in determining their guilt or innocence. Any error inhering in such refusal was neutralized by the charge given at the request of the defendants immediately succeeding that refused. The other was the refusal to charge that the jury cannot consider the amount of the checks in evidence as bearing on the guilt of the defendants, because the indictment does not charge them with concealing the amount of such checks. This refusal was proper. The checks were evidence of a withdrawal of money just before the bankruptcy, and this was some evidence of an intent to leave nothing but the shell of the business. Finally it is urged that the evidence was not sufficient to sustain the judgment, and that the case should have been dismissed, or a verdict directed for the defendants. It would serve no useful purpose to review the evidence in detail. It suffices to say that we have examined the record with care, and have no doubt that there was ample evidence of guilt. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509991/	760 A.2d 625 (2000) 2000 ME 174 Lester T. JOLOVITZ v. ALFA ROMEO DISTRIBUTORS OF NORTH AMERICA et al. Supreme Judicial Court of Maine. Argued September 5, 2000. Decided October 19, 2000. 626 Harold J. Friedman (orally), Melinda P. Shain, Friedman Babcock & Gaythwaite, Portland, for plaintiff. John A Graustein (orally), Deirdre M. Smith, Drummond Woodsum & MacMahon, Portland, for defendant, Alfa Romeo. James C. Hunt (orally), Robinson Kriger & McCallum, Portland, for defendant, Forest City. Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ. WATHEN, C.J. [¶ 1] Plaintiff Lester Jolovitz appeals from a judgment entered in the Superior Court (Kennebec County, Marden, J.) in favor of defendants Alfa Romeo Distributors of North America and Forest City Chevrolet on Jolovitz's claims for violation of the Lemon Law, 10 M.R.S.A. §§ 1161-1169 (1997 & Supp.1999); violation of the Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A to 214 (1989 & Pamph.1999); and breach of the implied warranty of merchantability, 11 M.R.S.A. § 2-314 (1995). Jolovitz also appeals from the court's denial of his motion to reconsider the entry of summary judgment on additional claims for negligence and punitive damages. Finding no error, we affirm. [¶ 2] The facts as developed at trial may be summarized as follows: On August 31, 1990, Jolovitz purchased a 1991 Alfa Romeo 164 sedan from Forest City. Jolovitz did not experience any problems with the vehicle from the date of his purchase until April 1991, when he drove his vehicle to Forest City and complained of steering wheel vibration. Forest City eliminated the vibration by balancing the car's tires. Jolovitz returned to Forest City in September 1991, and complained that the vehicle pulled to the right. Forest City corrected the problem with a front end alignment. In November 1991, Jolovitz complained that the car was once again pulling to the side of the road, and Forest City centered the car's steering wheel on this visit with a so-called "thrust alignment." In the course of doing this work, a Forest City technician accidently bent the car's tie rods while it was on the lift. As a result of the bent tie rods, the car squeaked when driven. Jolovitz immediately informed Forest City of the squeaking and the technician told him he would have to lubricate the bushings. On his ride home from Portland to Waterville, the squeaking returned and Jolovitz took the car to a Midas dealership a few days later. A Midas technician informed Jolovitz that the squeak was caused by bent tie rods. Jolovitz returned the car to Forest City in December 1991, and Forest City replaced the bent tie rods and the car's rear suspension and, because of these repairs, also performed a four wheel alignment. [¶ 3] In March 1992, Jolovitz drove the car to Florida. On the last day of his stay in Florida, Jolovitz detected a strange noise. Jolovitz took the car to an Alfa Romeo dealer, and a technician told him that the tires were cupped and needed to be replaced. After an unsuccessful attempt to get either Alfa Romeo or Goodyear to pay for new tires, Jolovitz purchased 627 four new tires. At the tire store, Jolovitz was informed that one of the wheel rims was bent, so he purchased a new rim as well. He then returned to the Alfa Romeo dealer for a four wheel alignment. During his trip to Florida, Jolovitz claims that he detected for the first time a strong smell of gasoline in the passenger compartment of the car after he had filled the tank. The gasoline smell was not present during the rest of his stay in Florida or during his return drive to Maine. [¶ 4] After returning to Maine, Jolovitz wrote a letter to the manager of Forest City regarding the tire wear and requested that they reimburse him for the replacement cost. Alfa Romeo responded to his request by arranging for Jolovitz to meet with a field representative in April 1992. At the time of this inspection, the car's odometer read 18,326 miles. According to Jolovitz, he inquired at about this time whether other owners of the Alfa Romeo 164 had made similar complaints of either alignment problems or gasoline odor in the passenger compartment and was informed by Forest City that Alfa Romeo had sent the 164 out with improper alignment specifications and that dealers were subsequently notified to change the specs and perform an alignment on all vehicles coming in for service, but that neither Alfa Romeo nor Forest City had any knowledge of complaints about gasoline odor. Jolovitz continued to have alignment and intermittent gas odor problems during 1992 and 1993. At that point, with 34,500 miles on the car, he decided not to use it any longer. [¶ 5] In November 1993, Jolovitz filed a complaint in District Court, which was dismissed without prejudice, and in December 1993, filed a new complaint in Superior Court. The new complaint sought relief pursuant to the Lemon Law, the Unfair Trade Practices Act, the implied warranty of merchantability, and the "implied warranty of fitness for a particular purpose," and for negligence and punitive damages. All counts were asserted against both Alfa Romeo and Forest City except for the Lemon Law count, which was asserted only against Alfa Romeo. Alfa Romeo and Forest City each moved for summary judgment, and the Superior Court (Alexander, J.) granted summary judgment in favor of defendants on the counts for negligence and punitive damages, but denied defendants' motions with respect to the remaining counts. [¶ 6] Over several years of discovery, Jolovitz learned that there were other Alfa Romeo 164 owners who experienced similar odor problems with their cars. Sometime in the fall of 1996, Jolovitz received a notice of recall from Alfa Romeo, informing him of defects in the 164's fuel filler hose. Jolovitz moved to reopen discovery in October 1996, and the Superior Court granted the motion to allow Jolovitz to examine issues related to the gas odor and the recall. During this stage of discovery, Alfa Romeo provided Jolovitz with several letters of complaint received from other 164 owners, all of which described, inter alia, problems with strong, intermittent gasoline odors entering the passenger compartment. At the conclusion of discovery and on the basis of this newly discovered evidence, Jolovitz moved, inter alia, to reconsider or vacate the prior summary judgment on the claims of negligence and punitive damages and to amend his complaint to add punitive damages as an additional element to the Unfair Trade Practice Act as well as a count of common law fraud and deceit. The court denied this motion, Jolovitz moved for reconsideration, and the court again denied the motion. Following a bench trial and consideration of post-trial motions, the court entered judgment for Alfa Romeo and Forest City on all counts of Jolovitz's complaint. [¶ 7] Jolovitz argues on appeal that the court erred in finding in favor of Alfa Romeo on the Lemon Law claim. Maine's "Lemon Law" provides consumers with a statutory right to have the manufacturer, its agent or authorized dealer make repairs to a new motor vehicle that does not 628 conform to all express warranties, provided that the consumer reports the nonconformity to the manufacturer, agent or dealer within two years of the date the vehicle is delivered to the consumer. See 10 M.R.S.A. § 1163(1) (1997). If the manufacturer, agent or dealer cannot make the vehicle conform to its warranty provisions "after a reasonable number of attempts" and the defect or condition complained of "substantially impairs the use, safety or value of the motor vehicle," then the manufacturer may replace the vehicle with a comparable vehicle, provided the consumer agrees, or must accept the return of the defective vehicle in exchange for a refund. See id. § 1163(2) (Supp.1999). The statute provides a presumption that a reasonable number of repairs have been attempted if either "[t]he same nonconformity has been subject to repair 3 or more times" within the shorter of the warranty term, two years from the date of delivery or 18,000 miles or the vehicle has been out of service due to repairs for 15 or more business days within this time. See id. § 1163(3) (1997). It is an affirmative defense under the act that "[a]n alleged nonconformity does not substantially impair the use, safety or value of the motor vehicle." See id. § 1164. [¶ 8] The court concluded as a preliminary matter that because the gasoline odor was not reported until the mileage on the car exceeded 18,000, it would consider only "the alignment of the wheels, the defect in the door and the seat mechanism." The court concluded that these alleged defects did not "substantially impair" the use, safety or value of the car. The court relied on the OXFORD AMERICAN DICTIONARY (1980) to define impairment as "damaged or weakened" and "substantial" as "being of considerable amount of intensity or validity." Appellate counsel for Jolovitz argues that the proper standard should be that which we derived from the Uniform Commercial Code: "Any defect that shakes the buyer's faith or undermines his confidence in the reliability and integrity of the purchased item is deemed to work a substantial impairment of the item's value." See Inniss v. Methot Buick-Opel, Inc., 506 A.2d 212, 219 (Me.1986) (citing 11 M.R.S.A. § 2-608(1)). This argument, however, was made for the first time during oral argument on appeal and was not preserved. See Chadwick-BaRoss, Inc. v. Martin Marietta Corp., 483 A.2d 711, 717 (Me.1984). In any event, we find no error in the objective standard used by the court. The subjective standard proposed by Jolovitz may be appropriate in other contexts, but it is not contemplated by the Lemon Law. A nonconformity that resists repair after three attempts will trigger replacement or refund only if the manufacturer is unable to demonstrate objectively that the nonconformity has little effect on use, safety or value. A troublesome appearance item, for example, could shake the confidence of some consumer but could have little or no effect on use, safety or value. Thus, the court did not err in denying the Lemon Law claim. [¶ 9] Jolovitz also contends that the court erred in finding in favor of Alfa Romeo and Forest City on his claim that they violated the Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A to 214 (1989 & Pamph.1999).[1] First, he argues they violated UTPA because they failed to provide Lemon Law disclosure notices to him at the time of purchase. The Lemon Law, however, does not mandate that the manufacturer provide Lemon Law disclosures and thus any failure of the manufacturer and, particularly the dealer, to make such disclosure was not a violation of the statute and, accordingly, was not prima facie evidence 629 of an unfair or deceptive trade practice. Next, he argues they violated UTPA because they misrepresented that there were no other customer complaints relating to gasoline odor. The court made no finding that a representative of Alfa Romeo or Forest City made false statements of fact regarding the existence of other 164 owners with gasoline odor problems. The court noted that the only expert evidence offered in the case suggested that the odor problems experienced by Jolovitz were caused during refueling or by inappropriate replacement of the fuel cap. Because Jolovitz failed to move for further findings of fact on this issue, we must assume that the court did not find Jolovitz's evidence of misrepresentation credible. See Tarbuck v. Jaeckel, 2000 ME 105, ¶ 25, 752 A.2d 176, 183 n. 5. Thus, we find no error in the court's denial of this claim. [¶ 10] We also find no error in the court's judgment in favor of Alfa Romeo and Forest City on Jolovitz's implied warranty of merchantability claim. Pursuant to 11 M.R.S.A. §§ 2-314(1) & 2-316(2) (1995), a warranty of merchantability is implied in a sale of goods if the seller is a merchant in the goods sold and the warranty of merchantability is not expressly excluded in the contract. Merchantable goods are goods that are "fit for the ordinary purposes for which such goods are used." Id. § 2-314(2)(c). Jolovitz argues that the "multiple problems" with his Alfa Romeo 164 clearly establish that it was not fit for its ordinary purpose. He complains that the court "never entered a direct finding on the implied warranty claim." The court specifically rejected Jolovitz's contention that, by itself, the repair history on his vehicle established the existence of a manufacturing defect. In the absence of a manufacturing defect, and given the fact that reported problems were repaired, replaced, or adjusted, the court found that Jolovitz's car was fit for its ordinary purpose and thus did not violate the implied warranty of merchantability. [¶ 11] Jolovitz also argues on appeal that the court erred by refusing to grant relief from the summary judgment order on his counts for negligence and punitive damages and by denying his request to amend his complaint to add punitive damages as an additional element of his UTPA claim and to add a new claim for fraud. We disagree. Jolovitz failed to make out a claim for negligence with the newly discovered evidence. Because a claim for punitive damages will not lie unless the plaintiff receives compensatory or actual damages based on the defendant's tortious conduct, see DiPietro v. Boynton, 628 A.2d 1019, 1025 (Me.1993), without a meritorious claim for negligence, the newly discovered evidence could not support an independent claim for punitive damages. Likewise, because the UTPA claim is also without merit, the newly discovered evidence could not support a claim of punitive damages, even if a UTPA claim could otherwise support a claim for punitive damages. In addition, the court denied the motion to amend because it found that there was no evidence that the condition underlying the recall for the fuel filler hose existed in this case or that such failure to disclose, if any, is related to any condition for which plaintiff seeks recovery. Jolovitz failed to inform the court as to the basis of the claim of fraud. Although the motion to amend set forth facts that could support a finding of affirmative misrepresentation, it failed to provide any evidence regarding the cause of the intermittent gas odor or how it exposed him to an unreasonable danger. Thus, we cannot find that the court clearly and manifestly abused its discretion and that the amendment is necessary to prevent injustice. See Bahre v. Liberty Group, Inc., 2000 ME 75, ¶¶ 7, 11, 750 A.2d 558, 560, 561; Thibodeau v. Cole, 1999 ME 150, ¶ 5, 740 A.2d 40, 42. The entry is: Judgment affirmed. NOTES [1] The Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A to 214 (1989 & Pamph.1999) provides a private remedy to consumers of personal, family or household goods, services or property who suffer "any loss of money or property, real or personal" as a result of an unfair or deceptive act or practice committed in the conduct of trade. See id. §§ 207 (1989) & 213 (Pamph.1999).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510001/	21 F.2d 164 (1927) WHITLOCK-ROSE v. McCAUGHN, Collector of Internal Revenue. No. 3588. Circuit Court of Appeals, Third Circuit. August 2, 1927. Shippen Lewis (of MacCoy, Evans, Hutchinson & Lewis), of Philadelphia, Pa., for plaintiff in error. George W. Coles, U. S. Atty., of Washington, D. C. (A. W. Gregg and T. H. Lewis, Jr., both of Washington, D. C., of counsel), for defendant in error. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. DAVIS, Circuit Judge. This was an action brought against the collector of internal revenue to recover a federal estate tax assessed and collected against the estate of Henry C. Whitlock, deceased, under the provisions of section 402 of the Revenue Act of 1918. 40 Stat. 1057 (Comp. St. § 6336¾c). A statement of claim was filed by the plaintiff for $441.03, the amount of the tax, with interest, to which an affidavit of defense was filed, raising questions of law in the nature of a demurrer. The court sustained the questions of law raised by the defendant, and entered judgment for him, and the plaintiff brought the case here on writ of error. Friend Whitlock, father of Henry C. Whitlock, in his last will and testament devised to Henry the income from one-half of his residuary estate, during his natural life, and from and after his death he gave the principal of the one-half "for such uses and purposes, as my said son, Henry Cruskey Whitlock, by any last will and testament may direct, limit and appoint." In his last will and testament, Henry C. Whitlock, devised his residuary estate, which included the estate held in trust for him under the last will and testament of his father, over which he had the power of appointment, to his niece, "Eliza Whitlock Rose, her heirs and assigns forever, in fee simple." The executrix of the estate of Henry C. Whitlock, in making her return of the federal estate tax to the collector of internal revenue, included the property over which Henry exercised the power of appointment under the will of his father. She thereafter concluded that this property should not have been included in her return, because the power given to and exercised by Henry was not a "general power." She therefore demanded a return of the amount of the estate tax which she had paid on the property over which Henry had the power of appointment, and, when this was refused, she brought this suit. Section 402 of the act provides: "That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated. * * * "(e) To the extent of any property passing 165 under a general power of appointment exercised by the decedent (1) by will, or (2) by deed executed in contemplation of, or intended to take effect in possession or enjoyment at or after, his death, except in case of a bona fide sale for a fair consideration in money or money's worth. * *" The question for determination is whether or not the property on which the tax was assessed and collected passed from Henry to Elise Whitlock Rose under a "general power of appointment." The plaintiff contends that, in order for a power to be general, it must not be limited either as to appointees or method of appointment. In other words, he says, the donee of the power must be able to convey the property to whomsoever he desires, either by will or deed, and since Henry could convey only by last "will and testament," and not by deed, the power was special or particular, and not general. Consequently, it is urged, the property did not pass under a "general power" of appointment, and so does not come within the provisions of the statute. What did Congress have in mind when it said that the gross estate of a decedent shall be determined by including the value at the time of his death of all property wheresoever situated, "to the extent of any property passing under a general power of appointment exercised by the decedent (1) by will, or (2) by deed executed in contemplation of, or intended to take effect in possession or enjoyment at or after his death"? The power which the Congress had in mind, and which it called "general," was a power which could be exercised by either will or deed, and did not have to include both. A decedent could select either method, by will or deed, by which a power could be exercised by a donee. Either method, if the donee of the power is not restricted as to appointees, complies with the statute, and the power is general. This use of the term, "general power of appointment," is in harmony with general usage. A power is regarded as "general" when it is not restricted by the donor to particular objects or beneficiaries, though the method of exercising it may be restricted and limited to a testamentary paper. Tucker v. Alexander (C. C. A.) 15 F.(2d) 356; Hume v. Randall, 141 N.Y. 499, 503, 36 N.E. 402; Greenway v. White, 196 Ky. 745, 246 S.W. 137, 32 A. L. R. 1385. "A general power of appointment by will enables the donee to devise the property of [to] any person who may have the capacity to take." Underhill on the Law of Wills. Property subject to a power of appointment under a will is a general power, and is equivalent to a fee. Lane v. Lane, 4 Pennewill (Del.) 368, 55 A. 184, 64 L. R. A. 849, 103 Am. St. Rep. 122; Bingham's Appeal, 64 Pa. 345; Pennsylvania Co., etc., v. Lederer (D. C.) 292 F. 629; Bullen v. State of Wisconsin, 240 U.S. 625, 36 S. Ct. 473, 60 L. Ed. 830. The law of New Jersey controls this case, and under New Jersey law property subject to power of appointment by will is subject to donee's debts, and is accordingly a general power. Crane v. Fidelity Union Trust Co. et al., 99 N. J. Eq. 164, 133 A. 205. The power created by the will of Friend Whitlock permitted Henry C. Whitlock to appoint "by any last will and testament" any person whomsoever he wished, and it was therefore a general power, and was subject to the tax. The decree of the District Court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509999/	21 F.2d 781 (1927) UNITED STATES v. RODENBOUGH. No. 11898. District Court, E. D. Pennsylvania. August 12, 1927. George W. Coles, U. S. Atty., of Philadelphia, Pa. Porter, Foulkrod & McCullaugh, of Philadelphia, Pa., for defendant. Finding of Facts. KIRKPATRICK, District Judge. The court finds the facts as stipulated and adopts the respective stipulations of fact filed by the parties of record as its findings of fact. Conclusion of Law. The property claimed by the executor of Mrs. Rodenbough as a basis for deduction is not property which can be identified as having been acquired by the decedent in exchange for property received by her as a share in the estate of any person who died within five years prior to her death. Opinion of the Court. This is an action by the United States to recover the sum of $111,852.58 with interest, the balance of a deficiency assessment of estate tax in the estate of Elizabeth McCahan Rodenbough. The Commissioner of Internal Revenue determined a deficiency due of $113,649.70. On appeal from this determination, the Board of Tax Appeals entered an order determining the deficiency to be $1,797.12, which amount was paid by the defendant. This action was thereupon brought to recover the balance of the deficiency determined by the Commissioner, but which had been disallowed by the Board of Tax Appeals. Mrs. Rodenbough died October 15, 1921. She was a daughter of William J. McCahan, who died within five years prior to her death. Value of Mrs. Rodenbough's share in her father's estate was $3,831,506.22. In the distribution of her father's estate, Mrs. Rodenbough received certain stocks and bonds which are set forth at large in the fourth stipulation of fact, together with certain other securities which remained in her possession until the time of her death. As to these latter, no question is raised, and they were not included in the decedent's gross estate by the Commissioner of Internal Revenue. All of the securities, particularly referred to in the fourth stipulation of fact, were converted into cash during the lifetime of Mrs. Rodenbough. Some of them were sold by her. Others matured, and were paid off at their maturity dates, Mrs. Rodenbough receiving the cash. In the case of W. J. McCahan Sugar Refining Company (the largest item in the list) this company sold its 782 assets and distributed their proceeds in liquidation to the stockholders. Mrs. Rodenbough received, as a result of this distribution, $1,296,675 in cash in two installments. Upon receipt of the proceeds of the sales, maturities, and liquidating distributions referred to, Mrs. Rodenbough deposited the money to her credit in a general banking account in the Philadelphia Trust Company, where the proceeds were mingled with funds derived from other and miscellaneous sources. From time to time, Mrs. Rodenbough invested in other securities, purchasing them by checks drawn against this account. Between the time of the receipt by Mrs. Rodenbough of the securities of her father's estate and the time of her death, she deposited in her bank account from proceeds of sales, maturities, and distributions arising out of the same the sum of $1,716,834.93, and from other and miscellaneous sources the sum of $774,095.14. During that time, she drew checks against her bank balance to purchase other securities referred to in the stipulation of facts in the amount of $1,444,382.20, and for other purposes the sum of $1,018,652.48. She also purchased a house for the sum of $100,000, drawing the funds by check from her general account in the Philadelphia Trust Company. At the time of her death, she was in possession of certain investments which had been purchased in the manner above indicated and paid for by checks drawn upon her general account. The defendant, her executor, claims a deduction under section 403(a) (2) of the Revenue Act of 1918 (Comp. St. § 6336¾d), representing the greater part of the value of the securities so purchased. This deduction was disallowed by the Commissioner of Internal Revenue and the deficiency in tax arising from its disallowance is the subject of this suit. Section 403(a) (2) of the Revenue Act of 1918 (40 Stat. 1057) is as follows: "Sec. 403. That for the purpose of the tax the value of the net estate shall be determined "(a) In the case of a resident, by deducting from the value of the gross estate * * "(2) An amount equal to the value at the time of the decedent's death of any property, real, personal, or mixed, which can be identified as having been received by the decedent as a share in the estate of any person who dies within five years prior to the death of the decedent, or which can be identified as having been acquired by the decedent in exchange for property so received, if an estate tax under the Revenue Act of 1917 or under this act was collected from such estate, and if such property is included in the decedent's gross estate." The question involved is whether the securities claimed as a deduction constituted property "which can be identified as having been acquired by the decedent in exchange for property so received;" that is, received from the estate of a person who died within five years prior to the death of the decedent. The plaintiff's position is based upon the strict legal interpretation of the word "exchange." It is contended that property deductible must have been acquired by a transaction constituting an exchange at common law which is equivalent to barter and exclude all transfers of property for money; that the statute limits the deduction to cases where one such exchange only has taken place; that none of the transactions by which Mrs. Rodenbough acquired the property now claimed as a deduction was an exchange; and that therefore the entire question of the identification of these securities as having been purchased with the proceeds of those received from her father's estate is wholly immaterial. On the other hand, it is the position of the defendant that, looking toward the substance of the transactions and not the form, Mrs. Rodenbough's purchase of new securities in substitution for those obtained from her father's estate and subsequently paid off, liquidated, or sold, constituted acquiring property in exchange, and that, by tracing the proceeds through her bank account, the securities claimed as a deduction can be identified as property so acquired. There is no difficulty about the legal meaning of the word "exchange." It is a word of precise import and sharply distinguished from a sale. "`Exchange' means the giving of one thing for another. It excludes the idea of first measuring the respective things in money value and then settling or paying any difference." Chicago, G. W. R. Co. v. Postal Tel. Cable Co. (C. C. A.) 249 F. 664. "A `sale' means for money. An `exchange of property' is a mere barter or trade. The very purpose of money is to have a medium of exchange so that borrowing or trading or bartering can be dispensed with." Ewers v. Weaver (C. C.) 182 F. 713. "But `exchange' is barter, and carries with it no implication of reduction to money as a common denominator." Postal Tel. Cable Co. v. Tonopah R. R. Co., 248 U.S. 471, 39 S. Ct. 162, 63 L. Ed. 365. Any transaction into 783 which money enters, either as the consideration furnished by one party or as a basis for measuring the value of the things transferred, is excluded. To constitute an exchange in the legal sense, the mutual transfers must be in kind. So far the contention of the government is correct, and is supported by ample authority. But we are here concerned with the meaning, not of a single word, but of a phrase, viz. "acquired in exchange for." If the statute referred to property "exchanged," or if the words were "acquired by an exchange," or even "acquired by exchange," the conclusions drawn by the government would undoubtedly follow. But the phrase under consideration has a broader meaning. Thus, in case of a sale, say of a bond for $1,000 in cash, it is perfectly correct to say that the money was acquired or received in exchange for the bond, although the transaction is a sale and not an exchange at all in the legal sense. Courts have even made use of the phrase in question in defining a sale. "Sale means transfer of property in exchange for money or security for money." Brown v. Fitz, 13 N. H. 283. Whatever the strict legal intendment of the word "exchange" may be, the phrase "in exchange for," according to common usage, does not exclude the idea of money as a medium for carrying out the transaction. On the other hand, it is obvious that, in providing for the deduction in question, the Congress took care to place definite limits upon it. It carefully avoided allowing a general deduction to the amount of the property received from the prior decedent. The phrases adopted to define and limit the scope of the deduction were: "The value * * of any property, * * * which can be identified as having been received by the decedent as a share in the estate * * * or which can be identified as having been acquired by the decedent in exchange for property so received." In arriving at the intention of Congress in using the latter of these limiting phrases, we may consider the object which it sought to obtain by the section in question and the evil which it endeavored to remedy. In enacting the second subdivision of section 403 (a) of the Revenue Act, providing for the deductions here claimed, Congress unquestionably had in mind the hardship arising from the double taxation of the same or substantially the same estate, which under the old law would arise from the accident of two successive deaths occurring within a comparatively short time. It was the subjection of the same property the second time to the taxing power that in the judgment of Congress called for a remedy. On this point the report of the ways and means committee on the Revenue Bill of 1918, Sixty-Fifth Congress, Second Session, Report 267, accompanying H. R. 12863, is illuminating. That report says: "It has come to the attention of the committee that persons closely related have died within such a short space of time that the same estate passing within a short period of time has been subject to the estate tax and thereby diminished because of the short period within which the two levies have been made." In introducing the bill in the House of Representatives, Mr. Kitchen said: "We have another very just provision that, if a person who receives a share of an estate dies within five years from the death of the person from whom he receives the estate, his share shall not pay another transfer tax within the five-year period." It is quite true that the tax is not in theory a direct tax upon the property, but upon the right to transmit it; but the tax was as a practical matter usually borne by the property of the estate. It was the depletion of the same estate by the second imposition of a tax that Congress sought to avoid. Another consideration which may also have been present in the adoption of the phrases in question is the practical difficulty in applying the statute and the intricacies of proof involved in tracing funds where property had passed through a number of changes in form, or where money had been commingled with other funds. At any rate, it is clear that, in allowing the deduction, the Congress deemed the substantial identity of the property of the estate sought to be taxed with that received from the prior decedent to be the essential and controlling fact. With this as the paramount purpose in mind, it was entirely consistent and reasonable to extend the deduction to cases where, by reason of the mode of its acquisition, the new property was so closely related with that received as to be essentially the same property, changed in form only, and this is clearly the intent underlying the second clause providing for cases where property had been acquired in exchange for property of the prior decedent. If the language used by the Congress to express its purpose be carefully considered, it will be seen that it is nicely adapted to that object. These considerations are overlooked by the defendant in his argument as to the meaning of the phrase in question. The result of his contention, so far as it applies to 784 the facts in this case, is to make the language under consideration equivalent to "purchased with the proceeds of," or perhaps "acquired in substitution for," or "held in the place of," and, thus broadened, it allows a general deduction to the amount received from the estate of the prior decedent, subject only to the condition that the money or property so received be traced in some form into the hands of the executor claiming the deduction. Both the manifest purpose of Congress and the words used negative such a conclusion. The phrase "acquired in exchange for" has a much more limited scope than those just mentioned. "Acquired in exchange for" means acquired by a transaction which is, in substance, though not necessarily in form, an exchange. It carries the idea of a mutual substitution. The Century Dictionary gives as a definition of exchange, "(4) mutual substitution; return; used chiefly in the phrase in exchange." In order to acquire one thing in exchange for something else, there must be something given as well as something received. A thing which has ceased to exist cannot thereafter be exchanged, and no other thing can be acquired in exchange for it. If a house is destroyed by fire and the owner purchases securities with the insurance money, he does not acquire the securities in exchange for the house. If a mortgagor pays off a mortgage, and the mortgagee buys an automobile with the money so received, he does not acquire the automobile in exchange for the mortgage. In those cases, it might properly be said that the property acquired was purchased with the proceeds of the former property or that it is held in place of or in substitution for it, but not that it was acquired in exchange for it. There must also be some definite and reasonably close relation between the giving and the receiving. Where the only facts that can be shown are that property was sold and that some time subsequently other property of approximately the same value purchased, it cannot be said that the property so purchased was acquired in exchange for the property sold, even though it could be shown that it was purchased with the proceeds of the property sold (an element which, as will appear, is lacking in this case so far as the sales and purchases are concerned. But the defendant argued that, unless his contention be accepted, the result will be that the deduction will be confined to instances of technical exchange or barter at common law. This does not follow, however. Transactions are common enough which may or may not be exchanges in form, but are nevertheless substantial exchanges. For example, where corporate or other debts are refinanced by the giving and voluntary acceptance of new obligations in place of the old, where, by reason of a merger or consolidation, stockholders accept new securities in place of old, or even in cases of sale, through a broker or agent, where the transaction results in a mutual substitution of property, there would be no difficulty in holding that a substantial exchange of property was accomplished. When we come to examine the transactions by which Mrs. Rodenbough obtained the securities now claimed for the basis of a deduction, we find three general types or classes: (1) Certain corporation bonds matured, were paid off, and she received the cash; (2) the W. J. McCahan Sugar Refining Company sold its assets, liquidated, and paid off its stockholders in cash; (3) she sold certain securities on the market, deposited the proceeds in her general bank account, and subsequently bought other securities. When the corporation bonds were paid off, the rights of Mrs. Rodenbough, which were evidenced by them and which were the real subject of ownership, were extinguished. The same thing occurred when the sugar company liquidated. It makes no difference whether or not the company was actually dissolved. So far as practical results are concerned, the stock ceased to have any value whatever. The fact, if it be a fact, that with the money so received she subsequently bought some of the securities now claimed does not bring those securities within the language of the deduction. They were not acquired in exchange for the matured bonds or for the stock of the sugar company. As to the sales made by her, there is no evidence whatever of any relation between them and the subsequent purchases, except in certain cases the equivalence of the sums of money involved. The circumstance that these transactions were accomplished through the medium of money does not necessarily exclude them from the deduction. We agree with the argument of the defendant, based upon the rule in U. S. v. Phellis, 257 U.S. 156, 42 S. Ct. 53, 66 L. Ed. 180, and other cases, to the effect that, in determining whether a particular transaction is subject to the tax laws, the courts will consistently regard matters of substance and disregard forms. The difficulty with the defendant's position is that, even disregarding the forms of the transactions by which Mrs. Rodenbough obtained the securities now claimed, they were none of them exchanges in substance. The only way in which the statute can be made to cover such 785 transactions is to give it a meaning which totally ignores the use of the word "exchange" and the purpose for which it was adopted. There is, however, in the case of the sales and purchases, a further difficulty. Even under the defendant's theory, it would still be necessary to identify the property in question as having been acquired with the funds arising from the sale of the securities which she inherited. This would involve the necessity of tracing the proceeds of the sales, and, when we turn to Mrs. Rodenbough's bank account, as set forth in full in the Thirty-Fifth stipulation of fact, we find that that is impossible. Mrs. Rodenbough sold and bought the securities in question during a period extending approximately from December 17, 1918, down to December 13, 1920. During that period, she deposited from sales of the securities in question $520,159.93, and from other and independent sources, including the money which she had on deposit at the time of the first sale, $609,055.05. She purchased the securities now claimed as a deduction to the amount of $437,898.15, and she drew out, for general expenses and other purposes not connected with the deduction claimed, $501,560.48. The defendant bases his claim that the proceeds are traceable upon the stipulation that, between the dates of the deposits of money received from sales and the withdrawals in payment for subsequent purchases, the balance in the account was at no time lower than the amount required to make the purchase, and invokes the rule of Knatchbull v. Hallett, 13 Ch. D. 696, and the many trust fund cases that follow it. That rule, however, has no application to this case. It arises from the presumption that, where there has been a tortious commingling by a trustee of trust funds with other funds not subject to the trust, followed by withdrawals, the trustee, in making withdrawals, is presumed to have acted honestly and not wrongfully, and therefore the withdrawals will be presumed to have been of his own money, and what remains will belong to the cestui que trust. Obviously, that presumption does not apply here. Without the benefit of it, however, the defendant cannot trace the proceeds of the securities sold into the securities on hand at the time of Mrs. Rodenbough's death. The burden of showing that the estate is entitled to a deduction with respect to property, which, under the general provisions of the statute, forms part of the gross estate, is upon the defendant, and, in the absence of evidence to establish this fact, there can be no deduction allowed. The defendant further points out that, since the Board of Tax Appeals decided this case, the Revenue Act of 1926 was enacted, containing in section 303, subsec. (a) (2) being 26 USCA § 1095, the identical language construed by the Board of Tax Appeals, and argues that this amounts to an adoption of that construction by Congress. With this conclusion we do not agree. The cases cited by the defendant are all cases where the provisions of the statute re-enacted had received construction by the Supreme Court of the United States. It is also true that there are decisions to the effect that, when the meaning of the statute is doubtful, great weight should be given to the construction placed upon it by the department charged with its execution, and also that re-enactment by Congress without change, of a statute which had previously received long-continued executive construction, is an adoption by Congress of such construction. U. S. v. Cerecedo Hermanos y Compania, 209 U.S. 338, 28 S. Ct. 532, 52 L. Ed. 821. In Iselin v. U. S., 270 U.S. 245, 46 S. Ct. 248, 70 L. Ed. 566, the Supreme Court declined to apply this rule to the case before it, saying: "But the construction was neither uniform, general, nor long continued; neither is the statute ambiguous. Such departmental construction cannot be given the force and effect of law." In the case before us, the Board of Tax Appeals made its decision January 31, 1925. This decision was contrary to the construction which had been placed upon the provision by the Commissioner for a considerable time. The Commissioner never acquiesced in the view of the Board of Tax Appeals. On December 11, 1925, the statement of claim in this case was filed, based upon a construction contrary to that adopted by the Board. This was the position of affairs when the Revenue Act of 1926 was passed on February 26, 1926. Under these conditions it cannot be said that the re-enactment of the section in question without change was an adoption of the construction placed upon it by the Board of Tax Appeals. One other matter remains to be disposed of. The defendant argued that, under the limitation provision of section 407 of the Revenue Act of 1921 (Comp. St. § 6336¾h), this action against the defendant is barred. The discharge from liability provided for by that statute, however, is a discharge from personal liability. This action is not against the executor personally, but against him in his representative capacity as executor of the estate. A judgment rendered *786 in this action would not subject him directly to any personal liability. If for any reason, as a result of the judgment in this case, recourse against the executor in his personal capacity should be attempted, the question could then be raised. As the record stands at present, it is not involved. In accordance with the foregoing, judgment may be entered for the plaintiff in the amount of $111,852.58, with interest as claimed in the statement of claim.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1509997/	760 A.2d 1141 (2000) 335 N.J. Super. 33 Marcella POWELL, Plaintiff, v. ALEMAZ, INC., Jane Doe and, John Roes, 1-10, (names being fictitious and unknown), Defendants, v. Alemaz, Inc., Defendant/Third-Party Plaintiff-Appellant, v. Quincy Mutual Fire Insurance Company, Third-Party Defendant-Respondent. Superior Court of New Jersey, Appellate Division. Argued October 4, 2000. Decided November 8, 2000. 1142 Thomas P. Weidner, Princeton, argued the cause for third-party plaintiff-appellant, (Jamieson, Moore, Peskin & Spicer, attorneys for appellant; Mr. Weidner, of counsel and on the brief; Michael G. Petrone, on the brief). Matthew A. Werbel argued the cause for third-party defendant-respondent, (Methfessel & Werbel, Rahway, attorneys for respondent; Jared E. Stolz, of counsel; Mr. Werbel, on the brief). Before Judges D'ANNUNZIO, KEEFE and STEINBERG. The opinion of the court was delivered by KEEFE, J.A.D. Defendant, third-party plaintiff, Alemaz, Inc. (Alemaz), appeals from the entry of summary judgment in favor of its insurer, third-party defendant, Quincy Mutual Fire Insurance Company (Quincy). The trial judge found that the insurance policy Quincy issued to Alemaz did not cover a claim brought against Alemaz by plaintiff, Marcella Powell (Powell), for damages based on a claim of racial discrimination. We affirm. The relevant facts are undisputed. Powell filed suit against defendants, Jane Doe and John Roes (rental agent), employees of Alemaz, and Alemaz as their principal, seeking damages for a housing discrimination claim.[1] Powell alleged the rental agent misrepresented an apartment rental amount because she is African American, in violation of federal and state civil rights, fair housing, and anti-discrimination laws. Powell alleged damage to her rights and feelings and sought compensatory, punitive, and injunctive relief. Alemaz denied the allegations and promptly sought coverage from Quincy under its businessowners liability policy (policy). Quincy denied coverage under the policy, asserting the injury claimed by Powell did not fall within the applicable coverages in the policy, that discrimination was not a "personal injury" as defined by the policy, and that the policy did not provide coverage for willful violations of penal statutes or ordinances. Consequently, Alemaz filed a third-party complaint against Quincy for defense costs and indemnity coverage. Following the third-party complaint, Powell and Alemaz settled the first-party action for $15,000. Quincy moved for summary judgment and Alemaz cross-moved for summary judgment and to compel discovery. The trial judge granted Quincy's motion. The crux of Judge Pisansky's decision on the motion is the following statement: [W]hile it is true that [the] coverage section addressing coverage for personal injury is not restricted, the Court notes that on the first page of the policy, the same page that contains the personal injury coverage cost, the policy states that "other words and phrases that appear 1143 in quotation marks have special meaning...." And in the provision regarding personal injury the words personal injury are contained in [quotation] marks; thus, it is evident that regardless of what Alemaz might have thought personal injury meant at the time it purchased the policy, the policy was only intended to cover personal injury as set forth in the definition section of the policy. On appeal, Alemaz raises the following issues for review: POINT ITHE COMPREHENSIVE BROAD-FORM BUSINESSOWNERS LIABILITY POLICY PROVIDES COVERAGE FOR DISCRIMINATION CLAIMS VICARIOUSLY ASSERTED AGAINST THE INSURED. POINT IITHE MOTION JUDGE ERRED IN DENYING ALEMAZ'S CROSS-MOTION TO COMPEL DISCOVERY AND PREMATURELY GRANTED SUMMARY JUDGMENT. Alemaz's argument presented in Point II, that the trial judge erred in deciding the question of coverage without further discovery, is without merit and does not require discussion. R. 2:11-2(e)(1). The interpretation of the insurance policy is one of law. The discovery requested by Alemaz was not reasonably aimed at assisting the trial court in that endeavor. Although we disagree with Alemaz's argument presented in Point I, the issue requires discussion to explain our reason for affirming the judgment under review. The following policy provisions are relevant to the analysis of that issue: BUSINESSOWNERS LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the Company providing insurance. The word "insured" means any person or organization qualifying as such under SECTION CWHO IS AN INSURED. Other words and phrases that appear in quotation marks have special meaning. Refer to SECTION FLIABILITY AND MEDICAL EXPENSES DEFINITIONS. A. Coverages 1. Business Liability a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage", "personal injury" or "advertising injury" to which this insurance applies. ... b. This insurance applies: .... (2) To: (a) "Personal injury" caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you; .... B. Exclusions 1. Applicable to Business Liability Coverage This insurance does not apply to: .... p. "Personal injury" or "advertising injury": .... (3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured;[2]1144.... F. Liability and Medical Expenses Definition .... 10. Personal Injury means injury, other than "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, by or on behalf of its owner, landlord or lessor; d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or e. Oral or written publication of material that violates a person's right of privacy. Alemaz argues the motion judge erred in interpreting the language as clear and in disregarding Alemaz's reasonable expectations. Specifically, Alemaz asserts that due to the broad coverage the policy provides and the absence of any exclusion for discrimination claims, the average business owner would reasonably expect coverage for plaintiff's claims stemming from damage to her individual rights and feelings. Alemaz also asserts that the broad array of intentional torts commonly encountered by business owners and delineated within the policy lead to the conclusion that it is reasonable for an insured to expect to be covered for claims of racial discrimination. To determine whether there is coverage, the complaint must be laid alongside the policy, and the inquiry is whether the allegations of the complaint, upon its face, fall within the risk insured against, notwithstanding the actual merit of the claim. Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 173-74, 607 A.2d 1255 (1992). When the complaint against an insured falls within the perimeter of coverage, the insurer must provide a defense. Ohio Casualty Ins. Co. v. Flanagin, 44 N.J. 504, 512, 210 A.2d 221 (1965). Initially, we must decide whether the policy is clear or ambiguous and whether the reasonable expectations of the insured should be a factor in determining coverage. Voorhees, supra, 128 N.J. at 175, 607 A.2d 1255. Generally, the words of an insurance policy are to be given their plain, ordinary meaning. Ibid. When the meaning of a phrase is clear, the reasonable expectations of the insured are a factor used by the court in interpretation, so long as the expectations are not contrary to the policy language. See Gibson v. Callaghan, 158 N.J. 662, 670, 730 A.2d 1278 (1999); see also Werner Indus., Inc. v. First State Ins. Co., 112 N.J. 30, 35-36, 548 A.2d 188 (1988). The reasonable expectation of the insured should be accorded so far as the language of the policy permits. American Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J. 29, 41, 713 A.2d 1007 (1998). That is, the policy should be read in a light most favorable to the insured and consonant with the insured's objectively reasonable expectations. Sparks v. St. Paul Ins. Co., 100 N.J. 325, 337, 495 A.2d 406 (1985); DiOrio v. New Jersey Mfrs. Ins. Co., 79 N.J. 257, 269, 398 A.2d 1274 (1979). Powell's complaint sought, in part, compensatory damages as a result of injury to her "feelings" resulting from racial discrimination at the hands of Alemaz's agents. It is well settled in New Jersey that racial discrimination strikes at the "personhood" of another. See Montells v. Haynes, 133 N.J. 282, 292-93, 627 A.2d 654 (1993). Therefore, where as here a claimant seeks compensatory damages for emotional distress damages, the claim is viewed as one for personal injuries. Section 1145 A.1.b.(2)(a) of the policy issued by Quincy provides coverage for, "`personal injury' caused by an offense arising out of [Alemaz's] business." Further, it would be clear to an insured, such as Alemaz, that coverage would not be excluded under that paragraph because it did not result from any of the activities described in the concluding phrase of subparagraph (a). Nonetheless, Alemaz is clearly put on notice at the outset that various provisions of the policy "restrict coverage," and accordingly the insured is instructed to consult the definition section of the policy when, "words and phrases [are used] in quotation marks," to ascertain their "special meaning." The phrase "personal injury" is used in quotation marks in the section of the policy concerning "COVERAGES." Therefore, Alemaz was required by the plain language of the policy to consult the definition of that phrase in Section F of the policy, the definition section. Addressing that definition, Alemaz contends that the broad array of intentional torts mentioned in the definition of "personal injury" are those commonly experienced by business owners, and specifically those identified in F.10.c. with respect to landlords, such as Alemaz. Alemaz reasons that because racial discrimination is recognized in this State as a personal injury and may foreseeably arise out of a landlord's rental operations, coverage for such claims by potential tenants is objectively reasonable. Therefore, according to Alemaz, it follows that subparagraph c. must be interpreted to achieve those expectations. Quincy, on the other hand, contends that the policy, at best, affords coverage for claims based on racial discrimination only if the claim arose out of a possessory interest in the property. Thus, according to Quincy, Powell's claim is not covered because she had not yet become a tenant, nor did she have any other possessory interest in the apartment in question. To support its interpretation of the policy, Alemaz cites Gardner v. Romano, 688 F.Supp. 489 (E.D.Wisc.1988). In Gardner, the plaintiffs, who were also prospective tenants, brought an action against an apartment owner and manager to recover for racially motivated housing discrimination. Id. at 490-91. Plaintiffs sought compensatory and punitive damages for injuries, including humiliation, embarrassment, and mental anguish resulting from the agent of the apartment owner's refusal to rent an apartment to them. Id. at 490. The insured apartment owner and manager argued they should have been indemnified by their insurer because the policy provided coverage for enumerated personal injuries. Ibid. The State Farm policy provided: personal injury means injury which arises out of one or more of the following offenses committed in the conduct of the named insured's business: .... c. wrongful entry or eviction, or other invasion of the right of private occupancy. [Ibid. (emphasis added).] The insured relied upon the phrase, "other invasion of the right of private occupancy," to provide coverage. Id. at 492. State Farm argued, however, that the quoted clause was clear in that it encompassed only claims for discrimination stemming from possessory interests. The court held that the phrase was not so much ambiguous as it was vague and ruled for the insureds. Id. at 492-93. It observed: If State Farm's interpretation were to be accepted, the phrase "other invasion of the right of private occupancy" would add no meaning to the policy provision. The meanings suggested by State Farm are already included in the previous phrase, "wrongful entry." Yet, every phrase in a contract is presumed to have some meaning, so the court must reject State Farm's interpretation. [Id. at 492.] See State Farm Fire & Casualty Co. v. Westchester Investment Co., 721 F.Supp. 1146 1165 (C.D.Cal.1989) (where State Farm made the same argument, under the same factual circumstances, and the same policy language, and the court also found coverage); See also Clinton v. Aetna Life and Surety Co., 41 Conn.Supp. 560, 594 A.2d 1046 (1991) (interpreting the same language in another insurance company's policy in favor of the insured). Courts, however, have not been of one mind in the interpretation of the same policy language used by State Farm and other insurers providing coverage to owners of residential rental property. In Brunzelle v. State Farm Fire & Casualty Co., 699 F.Supp. 167 (N.D.Ill.1988), the court refused to apply the rational of Gardner v. Romano, supra, although plaintiffs were also prospective tenants and the policy language was the same. The court analyzed the key wording of the policy as follows: "Other invasion of the right of private occupancy" is simply part of a more complete definition of "personal injury," following directly on the heels of "wrongful entry or eviction." Ejusdem generis principles draw on the sensible notion that words such as "or other invasion of the right of private occupancy" are intended to encompass actions of the same general type as, though not specifically embraced within, "wrongful entry or eviction." Those two terms have commonly understood meanings. Absent a catch-all phrase such as "or other invasion of the right of private occupancy," an insurer could resist coverage for actions that did not fit within those precise meanings, yet would clearly seem within the same class of conduct intended to be insured against. Then a court confronted with such resistance would be forced to choose between denying coverage or bending the "wrongful entry or eviction" language out of shape to provided the insured with coverage. .... Where Brunzelle (and for that matter Gardner) err in urging ambiguity of the Policy provision is in failing to give full and normal content to the word "right." In normal English (or at least normal legal English, which may be but is not necessarily the same), a "right" is a legally enforceable claim of one person against another. (citation omitted). Unquestionably Martin had no "right" of "private occupancy"no "right" to occupy the apartment she applied for. Though she was entitled not to be discriminated against in her application, that is not at all the same as a "right" to occupy: an enforceable claim to occupancy (to the exclusion of Brunzelle or anyone else). [Brunzelle, supra, 699 F.Supp. at 170.] Other courts have agreed with the Brunzelle court's analysis of the very same language. Bernstein v. North East Insurance Co., 19 F.3d 1456 (D.C.Cir.1994); Boston Housing Auth. v. Atlanta International Insurance Co., 781 F.Supp. 80 (D.Mass.1992). We find it difficult to disagree with the logic of the Brunzelle court. However, we need not choose between the conflicting interpretations of the language used by the insurers in the foregoing cases. The policy language used by Quincy in the subject policy is different and the difference is significant. In contrast to the language used in subparagraph c. of the policies in the Gardner line of cases, the language in subparagraph c. of the Quincy policy bears repeating: c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies,.... [(emphasis added).] As the Gardner court observed, the language contained in subparagraph c. of the State Farm policy was standard language used in the industry. Gardner, supra, 688 F.Supp. at 492. It is, therefore, noteworthy that the businessowners liability coverage 1147 form used by Quincy is under a copyright obtained by Insurance Services Office, Inc. (ISO), an organization formed for the purpose of developing standardized policy language for the insurance industry. The ISO copyright is dated 1992, one year after the last reported case we have been able to find through our research of cases interpreting the language used in the Gardner line of cases. Although there is no evidence in the record explaining why the language of subparagraph c. was changed, it is reasonable to assume that it was done to avoid issues such as were presented in Gardner, supra, and its progeny. In our view the emphasized language in the Quincy policy avoids the ambiguity that arguably existed in the language previously used in similar policies. By removing the word "other" from the definition and adding the phrase, "that a person occupies," to the definition, it can no longer be seriously argued that the phrase, "or invasion of the right of private occupancy," includes actions for personal injuries arising from racial discrimination to prospective tenants. Support for our interpretation of the current language used by Qunicy and other insurers using this standardized language is found in the same Circuit that decided Gardner. See United States v. Security Management Co., et als., 96 F. 3d 260 (7th Cir.1996). There, the court was called upon to decide whether a policy issued by Aetna Casualty and Surety Company (Aetna) to Security Management covered claims by the intervenor plaintiffs who were "testers" and claimed discrimination in their efforts to obtain apartment rentals. Id. at 263. The District Court, apparently following Gardner, found that the language of subparagraph c. was vague and ordered Aetna to defend Security Management. Id. at 264. The Circuit Court disagreed, stating: We believe that a reasonable insured would read the language as excluding cases where the aggrieved individual was not possessed of an existing right of private occupancy. [Id. at 265.] .... The actual language of the policy, ..., involves the more narrow right "of" private occupancy and all of the parties agree that the testers did not hold a right of private occupancy at the time of the alleged discriminatory conduct. [Id. at 266.] Principles of law urging liberal interpretation of policy language in favor of coverage do not permit what has been termed the, "perversion of language or the exercise of inventive powers to create ambiguities where they do not fairly exist." National Surety Co. v. Allstate Insurance Co., 115 N.J.Super. 528, 534, 280 A.2d 248 (Law Div.1971) (quoting James v. Federal Insurance Co., 5 N.J . 21, 24, 73 A.2d 720 (1950)). An insurance policy is not ambiguous merely because two conflicting interpretations of it are suggested by the litigants. Rather, both interpretations must reflect a reasonable reading of the contractual language. Alemaz's argument is premised on case law involving language not used by Quincy, and in any event, not supported by a reasonable reading of the contractual language actually employed. A court cannot rewrite the contract for the parties. Middle Dept. Insp. Agency v. Home Ins. Co., 154 N.J.Super. 49, 54, 380 A.2d 1165 (App.Div.1977), certif. denied, 76 N.J. 234, 386 A.2d 858 (1978). Affirmed. NOTES [1] Jane Doe and John Roes were not identified. [2] While Quincy cited this exclusion as one of the reasons for denying coverage, none of the statutes plaintiff claimed Alemaz's agents violated are penal statutes. Further, there is no evidence in the record that Alemaz's liability is other than vicarious. Accordingly, Quincy's reliance on this paragraph is clearly without merit. See Schmidt v. Smith, 294 N.J.Super. 569, 684 A.2d 66 (App.Div.1996), aff'd, 155 N.J. 44, 713 A.2d 1014 (1998).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510028/	21 F.2d 538 (1927) In re McCLURE CO. No. 12578. District Court, N. D. Georgia. August 31, 1927. 539 C. P. Goree, Asst. U. S. Atty., of Atlanta, Ga., for petitioner. J. C. Murphy, of Atlanta, Ga., for trustee. SIBLEY, District Judge. A proof of claim against the bankrupt for income taxes for the year 1919 was filed by the collector of internal revenue and disallowed by the referee, because barred by the limitation fixed by the tax acts. The pertinent facts are these: The tax return was made June 14, 1920, and amended November 25, 1920. The tax was assessed January 21, 1922. The proof of claim was filed with the referee April 12, 1927. The filing of the proof in the bankruptcy court is the equivalent of a suit, and is a proceeding in court for the collection of the tax, within the meaning of the tax statutes. By the provisions of section 250d of the Revenue Act of 1921 (Comp. St. § 6336 1/8tt), of force when the tax was assessed, the proof of claim would be barred, because not made within five years from the filing of the tax return. But the Revenue Acts of 1924 and 1926 introduce a longer limitation, to wit, six years from the making of a timely assessment, which the collector contends saves this claim. These provisions for limitation, though enacted subsequent to the accrual of the tax claim, did not create any new liability or change the old one, but affected only the time within which a remedy must be sought. 540 It is elementary that such limitations of time may be freely made and altered, provided that one having a right is not substantially deprived of all remedy. No man has a vested right not to pay a tax or other obligation which he really owes. So that an extension of the time within which the obligation may be enforced, or the entire abolition of the limitation, is within rightful legislative power. Nor is there great force in the argument that retrospective operation ought not to be given these statutes. Where general words are used in limiting described causes of action, it is not usual to confine the limitation to causes arising after the statute takes effect. Sohn v. Waterson, 17 Wall. 596, 21 L. Ed. 737. In the statutes cited, special words are used, expressly designating the taxes accrued under former laws, including the Revenue Act of 1918, so there is no possible doubt that this legislation was intended to be retroactive. Indeed, it must be conceded that this tax demand would be governed by these later statutes, if only it had not been liquidated by an assessment prior to June 2, 1924, the date of enactment of the Revenue Act of 1924. United States v. Crook (C. C. A. 5th Circuit, April 16, 1927) 18 F.(2d) 449. Nor is this a case for applying the principle that, in construing tax statutes, doubt is to be resolved in favor of the taxpayer. That principle may be invoked in determining whether or not the tax has been imposed. When applied, it operates to relieve equally all persons sought to be taxed. Here it is not contended that the tax claim is not due, but only that this taxpayer is relieved by the delay of the taxing officers. To solve doubt in favor of this taxpayer is but to shift his just burden to other taxpayers. It would deprive the government of a right, which it undoubtedly had, by a construction of an act of grace, its own voluntary statute of limitations. The rule is rather to be applied that a grant by the public is to be strictly construed in favor of the public, and that the government ought not to be excluded from its rightful powers, except on clear legislative words. The present contention, specifically stated, is that this tax claim, arising under the Revenue Act of 1918 (Comp. St. § 6336 1/8 et seq.) is controlled by the limitations of the act of 1921, and is barred of enforcement because the assessment was made before June 2, 1924, whereas, if the assessment had been delayed until June 3, 1924, the act of 1924 would have governed, and it would not be barred. With no logical or constitutional necessity compelling such a conclusion, it must rest solely on the words of the statutes. The Act of February 26, 1926 (44 Stat. 9), was of force when the proceeding in court, the filing of the proof of claim, was instituted. Its provisions are first to be noted. Patterson v. Gaines, 6 How. 551, 12 L. Ed. 553. Its language is free from all doubt. Section 278d authorizes a proceeding in court within six years after a timely assessment "whether made before or after the enactment of this act," and would sustain the filing of this proof on April 14, 1927. But section 278e declares that the section shall not authorize collection by distraint or a proceeding in court of a claim already barred by previous statutes at the time of its enactment. We are therefore required to ascertain whether the Act of June 2, 1924, saved this claim from becoming barred by the act of 1921, five years after the return was filed, to wit, on June 14, 1925. Act 1924, § 277a (2), being 26 USCA § 1057 (Comp. St. § 6336 1/6zz [4]), which deals with tax claims arising prior to 1921, requires that they, "except as provided in section 278, * * * shall be assessed within five years after the return was filed, and no proceeding in court for the collection of such taxes shall be taken after the expiration of such period." Section 278d provides that, "where the assessment of the tax is made within the period prescribed in section 277, or in this section, such tax may be collected by distraint or a proceeding in court begun within six years after the assessment of the tax." 26 USCA § 1061 (Comp. St. § 6336 1/6zz[5]). The combined effect of the two sections is to require an assessment to be made, or a suit without an assessment to be filed, within five years from the making of the return; but, if an assessment is made within that time, a distraint or a suit to enforce it may be had within six years after the assessment. Thus, for the first time, in the act of 1924, the assessment is made a point from which the limitation on proceedings to enforce collection is to run. The reason for the innovation is thus stated in the Gregg report on the Mellon bill, as quoted by Holmes, Federal Taxes (6th Ed.) p. 1347, note 85: "If the taxpayer has had notice of an assessment within the statutory period therefor, little hardship to him results from authorizing proceedings thereafter for the collection of the tax. The purpose of the limitation upon assessments is to assure the taxpayer that, after the period has run and no assessment has been made, no tax may be collected from *541 him. If, however, the assessment is made within the prescribed period, the assessment is comparable to a judgment at law and should remain alive until the tax is paid." This reason applies with equal force to every assessment, whether made before or after June 2, 1924. Section 278d does not speak of assessments hereafter made, but of assessments generally. In re-enacting this provision in section 278d of the act of 1926, in order to set at rest any doubt about the intent of the words, Congress inserted a parenthesis "(whether before or after the enactment of this act)." The assessment in this case, made within five years after the filing of the return, and within six years before the filing of the proof of claim, saves this tax from the bar. But section 278e is said to compel the opposite conclusion. It declares: "This section shall not (1) authorize the assessment of a tax or the collection thereof by distraint or by a proceeding in court if at the time of the enactment of this act such assessment, distraint or proceeding was barred by the period of limitation then in existence; or (2) affect any assessment made or distraint or proceeding in court taken before the enactment of this act." 26 USCA § 1062 (Comp. St. § 6336 1/6zz[5]). The plain meaning of the first clause is that if, on June 2, 1924, it was, under the provisions of previous statutes, too late to assess a tax, the new statute should not authorize the assessment, and if too late, under previous statutes, to distrain or sue, no distraint or suit should be had under the new statute. The present assessment was not made under the new statute, and it was not, on June 2, 1924, too late to sue under previous statutes; so this clause has no present application. The second clause seems equally plain, and means that, if an assessment had been made prior to June 2, 1924, it shall not be affected by the new statute; that is to say, it shall be no better and no worse as an assessment, and, if a distress or suit has been begun before that date, it also shall be unaffected by the limitations of the new statute. It is not enacted that the provisions of the new statute shall not apply to a tax where a valid assessment was made before June 2, 1924. No reason can be thought or for imputing any such intent to Congress. While a shorter period of limitations was fixed for more recent taxes, it was known that behind 1921 was a great mass of unassessed and uncollected taxes. The period of five years was retained in which an assessment or a suit without assessment must be had on them. But where, within that time, the taxpayer had solemn notice of assessment of the claim, and thereby it was liquidated with prima facie correctness, more time was desired to be given for adjustment and payment before enforcement was to be compelled. An assessment on June 1, 1924, differed in nothing from one on June 3d, whether from the standpoint of the taxpayer or the government. Section 278e was not intended to make a distinction, where there was no difference. It did not exclude from the new scheme of limitations tax claims that had been assessed prior to June 2, 1924, but only declared that such assessments stood unaffected as assessments. Such an assessment, if timely and valid when made, remained a good assessment, and as capable of being a starting point for the new limitation as one made after June 2d. The proceeding in court here dealt with was begun long after June 2, 1924, and the second clause of 278e does not apply to it at all. It rests upon an assessment, to which that clause does apply, but only to declare it unaffected, as good an assessment as it ever was, and such an assessment as section 278d makes the basis for the new six-year limitation. Sections 277a (3) and 278d of the act of 1926 are but a clarifying re-enactment of 277a(2) and 278d of the act of 1924, and should set at rest any doubt as to the original congressional intent. I think the proof of claim is not barred, and ought to be allowed, if otherwise correct.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510060/	588 S.W.2d 857 (1979) UNITED PLASTICS, COMPANY, Appellant, v. Carl DYES, Appellee. No. 1252. Court of Civil Appeals of Texas, Tyler. October 11, 1979. 858 Grover Russell, Jr., Fairchild, Price & Russell, Center, for appellant. Gregg Owens, Nacogdoches, for appellee. McKAY, Justice. This is a venue case in which appellee brought suit in Nacogdoches County against Moore Supply Company of Nacogdoches County, and against appellant which maintains its main office in Houston, Harris County, with its agent for service at same location. Appellee is a resident of Nacogdoches County. Appellee alleged that he sustained damages as a result of the failure of plastic pipe which appellee had purchased from Moore Supply Company. This pipe was alleged to have been manufactured by appellant. Appellee alleged causes of action under the Texas Deceptive Trade Practices-Consumer Protection Act, Sec. 17.41 et seq., Texas Business and Commerce Code, DTPA, and breach of express and implied warranties. In addition appellee has alleged alternative pleas of negligence and strict liability. Appellant filed his plea of privilege to be sued in Harris County, and after hearing, the plea of privilege was overruled resulting in this appeal. Appellee testified that he was a resident of Nacogdoches County and engaged in the business of contracting pipelaying and the care of a number of rural water supply systems; that he bought some pipe from Moore Supply Company to use for a water system in a subdivision and later found the pipe to be defective because it failed to hold water; that the pipe was delivered to the job by an employee of Moore Supply Company. The invoice from Moore Supply Company for the sale of the pipe was admitted into evidence. Appellee further testified that the pipe, with the exception of 1,000 feet, was used at the job site. Samples from the unused pipe were offered and admitted into evidence. He further testified that the pipe was marked "United, 3 inch" with other letters and numbers and markings on the pipe and that these were samples of the same pipe unloaded at the job site. In further testimony, appellee stated that the pipe failed some four to six inches behind the bell-shaped end of the pipe and that this was the only area where the leaks occurred and that CanTex and Jet Stream solvents were used to fasten the pipe sections together and that about two miles of the pipe obtained from Moore Supply Company was installed in the subdivision and that no other pipe was installed in that area. The only other witness who testified was Millard Thomas Moore, who resided in Nacogdoches County and was branch manager of Moore Supply Company. He testified that Moore Supply Company had had an office in Nacogdoches since 1957 and had done business in the county since that time and that the invoice from Moore Supply Company was for 3-inch and 2-inch PVC bell-end pipe delivered to the job site on a carrier other than a Moore Supply Company truck. He further said that in 1976 he had dealings with Stan Roberts who was a manufacturer's representative for several products bought by Moore Supply Company and that the pipe had been ordered from Stan Roberts and Associates by giving the order to Mr. Gary Roberts with Stan Roberts and Associates, but that he did not request United Plastics pipe or a particular brand. 859 He further said that he was led to believe that the pipe was from United Plastics Company because it was the brand represented by Stan Roberts and Associates; that Moore Supply Company handled other brands of pipe; that he could not say whether or not the name "United" was embossed on the pipe made by United Plastics Company but that pipe manufacturers normally identified their pipe with some type of markings. He further said to his knowledge Moore Supply Company did no business with any other company who used the word "United" in their name and that he did not notice it on any other brand. Plaintiff brings points of error maintaining that appellee failed to plead and prove a cause of action against the resident defendant, Moore Supply Company, as required by Subdivision 4 of Article 1995, Tex.Rev.Civ. Stat.;[1] that appellee failed to plead and prove a cause of action based on negligence against appellant as required by Subdivision 9a, Article 1995; that appellee failed to plead and prove an agency or representative of the appellant in Nacogdoches at the time appellee's cause of action arose as required by Subdivision 23; that appellee failed to plead and prove a cause of action under the Texas Deceptive Trade Practices-Consumer Protection Act, Section 17.41 et seq., Texas Business and Commerce Code, as required under Section 17.56 of said Act; and that there is no evidence or insufficient evidence to support the implied finding that appellant was the manufacturer of the pipe alleged to be defective as required by Subdivision 31, Article 1995. Appellee maintains that he presented sufficient evidence to meet the requirements of Section 17.56, DTPA, in that he claims relief under Section 17.50 of the Act, and that the record shows that appellant has done business in Nacogdoches County. Appellee also contends that there is sufficient evidence to meet the requirements of Subdivision 31 of Article 1995. Section 17.45 of D.T.P.A. defines consumer as "an individual, partnership, corporation or governmental entity who seeks or acquires by purchase or lease any goods or services." Section 17.46 provides "(b) The term `false, misleading, or deceptive acts or practices' includes, but is not limited to, the following acts: ... (5) representing that goods ... have ... characteristics, ingredients, uses ... which they do not have ...; (7) representing that goods or services are of a particular standard, quality or grade .. if they are of another." Section 17.50 provides that "a consumer may maintain an action if he has been adversely affected by ... breach of an express or implied warranty ..." Section 17.56 reads as follows: "An action brought which alleges a claim to relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business." [Emphasis added] The record reveals that the trial court had ample evidence to conclude that appellant had done business in Nacogdoches County. However, appellee made no proof of his cause of action. Appellant contends that appellee must not only plead a cause of action but must also prove such cause. As a general rule a resident defendant has a right to be sued in the county of his domicile except in specifically enumerated exceptions, and ordinarily when the venue is challenged with a proper plea of privilege, the plaintiff has the burden of pleading and providing the facts necessary to bring his case within one of the exceptions. Burtis v. Butler Brothers, 148 Tex. 543, 226 S.W.2d 825, 828 (1950). The question then presented is whether the language of Section 17.56 should be interpreted that proof of a cause of action is not necessary since the language of that section says "which alleges a claim to relief under 17.50." *860 There are two cases which dealt with the question of proof of a cause of action before the 1977 amendment. They are Doyle v. Grady, 543 S.W.2d 893 (Tex.Civ.App.-Texarkana 1976, no writ), and Hudson & Hudson Realtors v. Savage, 545 S.W.2d 863 (Tex. Civ.App.-Tyler 1976, no writ). Both of these cases held that under the venue provisions of DTPA the plaintiff must follow the general rule and both plead and prove a cause of action to support venue. Joc Oil Aromatics, Inc. v. Commercial Fuel Oil Co., 564 S.W.2d 490 (Tex.Civ.App.-Houston [1st Dist.] 1978), cites and follows Doyle and Hudson, and apparently was also concerned with 17.56 before the 1977 amendment. Appellant strongly urges that the amendment to 17.56 in 1977 did not eliminate the burden of appellee to both plead and prove his cause of action before venue may be maintained in Nacogdoches County. Section 17.56, as passed in the Legislature's regular session, 1973, read as follows: "An action brought under Section 17.50 or 17.51 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or is doing business." It is noted that the words "which alleges a claim to relief" were inserted, and "has done" was substituted for "is doing" by the 1977 amendment. By the insertion of the words "which alleges a claim to relief" was the requirement to prove a cause of action eliminated? Appellee cites 29 Baylor Law Review p. 525 et seq. in which there is a critique by Gaddy Wells of the DTPA as amended in 1977. At p. 539 the author states: "The new amendments have significantly relaxed the venue requirements for suits brought under the DTPA. Now a consumer need only allege sufficient facts to establish a cause of action under the DTPA to sustain venue in one of the designated counties. This amendment was made to change the result of two civil appeals court decisions which construed the previous language of the Act to require that a consumer establish a prima facie case by a preponderance of the evidence in order to sustain venue in the designated counties. The purpose of the amendment was to eliminate the need to prove a cause of action under the DTPA twiceonce in the plea of privilege hearing and once in the trial of the case on the merits." The two cases to which the writer referred were Doyle v. Grady, supra, and Hudson & Hudson Realtors v. Savage, supra. Appellee also quotes in his brief a dialogue apparently between two State Senators in which one expresses his view that the 1977 amendment to Section 17.56 eliminates the requirement for the plaintiff to prove a cause of action. The brief does not give the source of the quoted dialogue. Since the effective date of the 1977 amendment to Section 17.56, two cases have decided the point in question. They are Dairyland County Mutual Insurance Company of Texas v. Harrison, 578 S.W.2d 186, 189 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ), and Compu-Center, Inc. v. Compubill, Inc., 580 S.W.2d 88, 89 (Tex.Civ. App.Houston [1st Dist.] 1979, no writ). In each of these cases the court held that the plaintiff was not required to both plead and prove a cause of action, but was required only to allege a claim for relief under Section 17.50. We hold that appellee here was not required to prove his case under Section 17.56, but he could maintain venue in Nacogdoches County by alleging a claim for relief under Section 17.50. Appellee was required, however, to prove appellant resided, had his principal place of business, or had done business in the county where the suit was filed. Pettit v. England, 583 S.W.2d 875, 876 (Tex.Civ.App.-Dallas 1979, no writ). We have concluded that appellee made such proof. We do not reach the question whether appellee has met the requirements of subdivision 31, Article 1995, nor do we reach appellee's cross-point. Judgment of the trial court is affirmed. NOTES [1] All reference to statutory articles are to Texas Revised Civil Statutes unless otherwise indicated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510049/	633 S.W.2d 781 (1982) June B. HERRINGTON, Plaintiff-Appellee, v. Hazel H. BOATRIGHT, Armco Steel Corporation, Union Central Life Insurance Company, Equitable Life Assurance Society of the United States, Henry M. Beaty, Jr., Administrator, Defendants-Appellants. Court of Appeals of Tennessee, Western Section. February 25, 1982. Rehearing Denied March 9, 1982. Permission to Appeal Denied June 1, 1982. 782 Sam F. Cole, Jr., Lane, Hansom & Cole, Memphis, for defendant-appellant Hazel H. Boatright. Henry M. Beaty, Jr., Memphis, Administrator, pro se. McDonald Yawn, Luck, Yawn & Smith, Memphis, for plaintiff-appellee. Permission to Appeal Denied by Supreme Court June 1, 1982. MATHERNE, Judge. A divorced wife sues to enforce a property settlement agreement incorporated in a final divorce decree. The plaintiff June B. Herrington and Malcolm A. Herrington were married in Greenwood, Mississippi on April 6, 1947. After 27 years of marriage, the parties separated and entered into a written Separation Agreement dated August 23, 1974, which agreement was incorporated in a separate maintenance decree awarded the wife by the Common Pleas Court, Butler County, Ohio. The parties did not reconcile, and Malcolm A. Herrington caused to be entered a final decree of divorce on June 15, 1978, which final decree, at the request of Malcolm A. Herrington, incorporated therein the Property Settlement Agreement "as final disposition of all property matters of the within cause." After the entry of the final divorce decree, Malcolm E. Herrington became a resident of Shelby County, Tennessee, where he lived until his death on January 1, 1979. The plaintiff is a resident of Nassau County, New York, and brings this lawsuit to enforce that portion of the property settlement which relates to insurance on the life of Malcolm E. Herrington. The property settlement agreement provides; 5) Insurance: Husband shall keep his life insurance in effect and shall keep Wife as the beneficiary so long as they are married or if they should divorce, so long as she is not remarried. At the time of the property settlement agreement, and at the time of his death, Malcolm E. Herrington possessed policy No. 12531 issued by Equitable Life Assurance Society in the face amount of $25,000; policy No. G978A issued by the Union Central Life Ins. Co. in the face amount of $28,000; and Veterans Administration policy V-39-89-70 in the face amount of $10,000. Up until about 74 days prior to his death, Malcolm E. Herrington paid the premiums on these policies and the divorced wife remained the named beneficiary in each policy. However, on December 6, 1978, he executed change of beneficiary forms on the Equitable and Union Central policies, naming as beneficiary in each policy his sister, the defendant Hazel H. Boatright. On December 13, 1978, he took the same action with regard to the Veterans Administration policy. Hazel H. Boatright never paid a premium on any policy, neither did she give any consideration in exchange for naming her as beneficiary under each policy. The divorced wife has not remarried. Equitable and Union Central have paid the proceeds from their policies in to the chancery court pending this litigation. The Veterans Administration paid the proceeds of its policy to the named beneficiary Hazel H. Boatright, but she has paid that amount in to the chancery court pending this litigation. The only defendant claiming an interest in the policies is Hazel H. Boatright. The chancellor held that Malcolm E. Herrington violated the divorce decree as entered in the Ohio court, and declared the divorced wife to be the owner of the proceeds of the policies. The chancellor held that Hazel H. Boatright held the proceeds of the Veterans Administration policy as constructive trustee for the plaintiff. The defendant Hazel H. Boatright appeals, insisting that (1) the plaintiff failed to state or prove a cause of action against her; (2) the plaintiff was guilty of laches by failing to notify the insurors of her claim to the policies; (3) the plaintiff is not entitled 783 to the proceeds of the policies; and (4) only the Ohio court has jurisdiction to enforce its decree. We note that section 1 of article IV of the Constitution of the United States provides that: Full faith and credit shall be given in each State to the Judicial Proceedings of every other State. The principle of comity has long been applied in this state to foreign divorce decrees. See Dickson v. Dickson's Heirs, (1826) 9 Tenn. 110. We hold that the chancellor correctly enforced the property settlement provision as set out in the divorce decree of the Ohio court. Goodrich v. Massachusetts Mutual Life Ins. Co., (1951), 34 Tenn. App. 516, 240 S.W.2d 263. Where the right to change the beneficiary has been reserved to the insured, the beneficiary named in the policy has a mere expectancy and has no vested right or interest in the policy. However, where a divorce decree requires the husband to keep a life insurance policy in effect and denies him the right to change the beneficiary, then the wife as the named beneficiary has a vested interest in the policy. Goodrich, supra. Should the husband then attempt to change the beneficiary, the wife may assert her vested right. The defendant argues that the property settlement agreement is vague and unenforceable because it does not refer to specific policies of insurance. This argument is totally defective because the normal meaning of the words "shall keep his life insurance in effect" pertains to all his life insurance in effect at that time and does not require a listing of the policies by company, number and amount. The defendant also argues that group life insurance differs from ordinary life insurance. We can not follow this insistence to any degree where the only issue is who shall receive the proceeds of the two group policies issued by Equitable and Union Central. We, therefore, affirm the chancellor in his holding that, under the terms of the divorce decree, the proceeds from the Equitable Assurance Society policy and the Union Central policy belong to the plaintiff June B. Herrington, the ex-wife of the deceased, Malcolm A. Herrington. The Veterans Administration policy, however, involves very different principles of law and the proceeds thereof are not necessarily payable as are proceeds from a private insurance policy. This policy is a National Service Life Insurance (NSLI) policy with the United States Government as the insurer. Policies of NSLI are contracts of the United States and possess the same legal incidents as other government contracts, and the validity and construction of such policies present questions of federal law. Woodward v. United States, 167 F.2d 774 (1948). Cases dealing with change of beneficiary in private insurance policies are of little, if any, value as authority for cases arising out of an interpretation of an NSLI policy. The reason being that a war risk insurance policy is a contract completely statutory in basis, and that the rights and duties of the parties stem not from the rules which govern private life insurance, but from statutes and regulations passed expressly for war risk insurance. 2 A.L.R.2d at page 492, annotation to Mitchell v. United States, (5 Cir.1948) 165 F.2d 758. In Wissner v. Wissner, 338 U.S. 655, 70 S. Ct. 398, 94 L. Ed. 424 (1950), the husband and wife were residents of California. The husband took out a NSLI policy, naming the wife as beneficiary. Later, he became estranged from his wife, and changed the beneficiary to his mother. Upon the husband's death the wife argued that the policy was community property and she was entitled to one-half of the proceeds. The trial court so held, and the appellate court affirmed. On grant of certiorari the Supreme Court reversed, holding, in part, as follows: The controlling section of the Act provides that the insured `shall have the right to designate the beneficiary or beneficiaries of the insurance [within a designated class], * * * and shall * * * at all times have the right to change the beneficiary 784 or beneficiaries * .' 38 U.S.C. § 802(g), 38 U.S.C.A. § 802(g). Thus Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other. Pursuant to the congressional command, the Government contracted to pay the insurance to the insured's choice. He chose his mother. It is plain to us that the judgment of the lower court, as to one-half of the proceeds, substitutes the widow for the mother, who was the beneficiary Congress directed shall receive the insurance money. We do not share appellee's discovery of congressional purpose that widows in community property states participate in the payments under the policy, contrary to the express direction of the insured. Whether directed at the very money received from the Government or an equivalent amount, the judgment below nullifies the soldier's choice and frustrates the deliberate purpose of Congress. It cannot stand. See also Pack v. United States, (9 Cir.1949) 176 F.2d 770. It is well established that questions respecting the proper beneficiaries under NSLI policies are governed by federal law rather than state divorce law or state court divorce decrees. United States v. Donall, (6th Cir.1972) 466 F.2d 1246. In Donall, supra, an insured husband made his first wife the principal beneficiary under a NSLI policy. After a divorce wherein the decree provided that all rights of either party in and to the proceeds of any life insurance policies on the life of the other party "are hereby cut off and at an end," the husband remarried. The husband did not change the principal beneficiary, and upon his death the court held that the first wife as the named principal beneficiary would take the proceeds of the policy as against the claims of his mother as the named contingent beneficiary and his second wife as claimant. The Donall court based its ruling upon Wissner v. Wissner, supra. We also note the case of Dyke v. Dyke, (6th Cir.1955) 227 F.2d 461, wherein a Tennessee statute was interposed to deny NSLI policy proceeds to the named beneficiary. There the insured originally named his mother as the principal beneficiary. He was later declared non compos mentis by a state court and committed to an institution. After a short confinement he was released, found employment and acted normally, however, no court order was entered declaring him to be competent. After his release from the hospital, the insured named his wife as the principal beneficiary under the policy. The insured died and the contest was between the mother and the wife for the proceeds of the policy. The court found as a fact that the insured was mentally competent at the time he changed the beneficiary. The mother argued, however, that under state law "an adjudication of insanity `is conclusive evidence, as a matter of law, of a continuation of that status until the person adjudged insane has subsequently been declared of sound mind by a decree entered pursuant to the provisions'" of certain Tennessee statutes. In dealing with this argument the court stated: ... But the [trial] judge asserted that this decision established a Tennessee rule of property; that a rule of property under state law cannot affect the disposition of insurance benefits arising under federal law; that National Service Life Insurance policies are contracts of the United States and possess the same legal incidents as other government contracts; and that their terms must be construed by federal rather than by state law. He reasoned that, if by a rule of property a state could restrict the agreement in a National Service Life Insurance policy to pay death benefits to a named beneficiary, or the right to change from one beneficiary to another, state power would supercede federal power. Such result would not be in conformity with recognized principles of law as determined in numerous federal decisions. We think Judge Taylor was clearly right. He adhered to the principles of the federal decisions. The court held that the widow as the named beneficiary would prevail. 785 The issue was probably most pointedly met in the case of Hoffman v. United States, (9th Cir.1968) 391 F.2d 195, wherein the insured under two NSLI policies, naming his wife as beneficiary, was granted a divorce by a decree which provided that the insured would at all times keep and maintain his divorced wife as the sole beneficiary under those policies. Later the insured changed the beneficiary. Upon the death of the insured the question was: Does a state court have the power to effectively require an unwilling veteran to maintain his former wife as beneficiary on his National Service Life Insurance policies? The court held that a state court does not possess that power, basing its decision on 38 U.S.C. § 717(a), Wissner v. Wissner, supra, and the Supremacy Clause of the federal constitution. See also Baratta and Baratta, (1974), 18 Or. App. 261, 524 P.2d 1233; Heifner v. Soderstrom, (N.D.Iowa 1955) 134 F. Supp. 174. It has also been held that notwithstanding any provision to the contrary in a separation agreement, the insured under a NSLI policy has the right to change beneficiaries under the policy up to the time of his death. Berk v. United States, (E.D., N.Y. 1969) 294 F. Supp. 578; Eldin v. United States, (S.D., Ill. 1957) 157 F. Supp. 34; Fleming v. Smith, (1964) 64 Wash.2d 181, 390 P.2d 990; Williams v. Williams, (1961) 255 N.C. 315, 121 S.E.2d 536; Kauffman v. Kauffman, (Cal. App. 1949) 93 Cal. App. 2d 808, 210 P.2d 29; McCollum v. Sieben, 211 F.2d 708 (1954). Under the authorities herein cited we hold that the defendant Hazel H. Boatright as the named beneficiary in the NSLI policy on the life of Malcolm A. Herrington is entitled to the proceeds of that policy. The chancellor is reversed in his holding to the contrary, and his final judgment is modified to that extent. The cost in this court is adjudged one-half against June B. Herrington and one-half against Hazel H. Boatright for which execution may issue, if necessary. NEARN and TOMLIN, JJ., concur. ON PETITION TO REHEAR The defendant-appellant Hazel Boatright has filed a Petition to Rehear in which no matter is raised that was not considered by the court in rendering its original Opinion in this cause. The Petition to Rehear is, accordingly, overruled at the cost of the petitioner.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510059/	760 A.2d 829 (2000) 334 N.J. Super. 661 Thomas WLASIUK, Jr., Plaintiff-Appellant, v. James J. McELWEE, Christine McElwee, Christine Hogan, James Hogan, John Doe, (a fictitious name) State Farm Insurance Company and State Farm Indemnity Company, jointly, severally and individually, Defendants-Respondents. Superior Court of New Jersey, Appellate Division. Argued September 20, 2000. Decided November 1, 2000. 830 Howard D. Spialter, Union, argued the cause, for appellant (Mr. Spialter, of counsel and on the brief). Paul J. Endler, Jr., Westfield, argued the cause, for respondents James J. McElwee, Christine McElwee, Christine Hogan and James Hogan (Garrubbo, Romankow & Rinaldo, attorneys; Mr. Endler, on the brief). Thomas W. Matthews, Roseland, argued the cause, for respondent State Farm Indemnity Company (Soriano, Henkel, Salerno, Biehl & Matthews, attorneys; Mr. Matthews, on the letter brief). Before Judges KEEFE, EICHEN and STEINBERG. The opinion of the court was delivered by KEEFE, J.A.D. Plaintiff Thomas Wlasiuk, Jr., appeals from the entry of summary judgment in favor of defendants James McElwee (McElwee) and State Farm Indemnity Company (State Farm).[1] Plaintiff was a passenger in an automobile operated by McElwee when he was shot during an aborted robbery by an unknown assailant. McElwee had permitted the assailant to enter the vehicle. Plaintiff sued McElwee for personal injuries. He also sued State Farm, seeking uninsured motorist coverage under the State Farm uninsured motorist clause of which plaintiff was a third party beneficiary. The motion judge granted McElwee's motion for summary judgment on the ground that he did not owe a duty to plaintiff under the circumstances. The Court found that McElwee had no duty to foresee that plaintiff would be shot. The motion judge raised the issue of McElwee's duty sua sponte, inasmuch as McElwee had moved for summary judgment on another ground not relevant to this opinion. Summary judgment was also entered in favor of State Farm because McElwee's insured vehicle was the only vehicle involved in the case. Accordingly, the motion judge found that State Farm's uninsured motorist endorsement was inapplicable by its clear terms. On appeal, plaintiff challenges both rulings. With respect to the claim against State Farm, the claim is so clearly without merit that a written opinion discussing the issue is not warranted. R. 2:11-3-(e)(1)(E). Therefore, the principal 831 question to be decided on appeal is whether McElwee owed a duty to plaintiff. Because this matter was decided on a motion for summary judgment, we are required to view the facts in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). Therefore, we assume the following facts to be true. McElwee and plaintiff were friends. On January 1, 1996, when the incident occurred McElwee was 18 years old and plaintiff was 16 years old. They had known each other for two years. On the evening in question, plaintiff made arrangements with McElwee to drive him to a female friend's home. Plaintiff obtained directions from his friend. McElwee independently obtained directions when he telephoned plaintiff's friend to ensure that there would be a date for him at her home. After comparing the directions and seeing that they were identical, McElwee disposed of his copy and relied on plaintiff's copy. When the two young men began their trip to South Orange, McElwee proceeded on Stuyvesant Avenue, which runs from the center of Union to the Irvington border. McElwee then came to a fork in the road at which point the two began to argue over which way to turn. According to plaintiff, "By the time we had recalled what the street was it was too late, he [defendant] had gone into a bad neighborhood." After the two acknowledged they were "lost," plaintiff asked McElwee to pull over so he could call his friend for further directions. At about 7:30 p.m. McElwee pulled into a parking lot. On the right of the lot was a McDonalds restaurant and across the street was a food store. There were people coming and going from McDonalds, and there were people hanging out in front of the food store. Plaintiff got out of the car and called his friend from a payphone. His friend informed him that they were in a "bad section" of Irvington/Newark. Plaintiff obtained directions and walked back toward the car. McElwee already had exited the vehicle and met plaintiff on his way back to the car. The two then entered the car, with plaintiff telling McElwee to leave right away because there were "drug dealers and stuff" in the area. Shortly thereafter, they noticed a man approaching the car from behind. Plaintiff stated that this made him "nervous." Plaintiff said to McElwee, "Go, just go!" However, McElwee got "nervous" and stopped the car because he wanted to see what the man wanted. At this point, McElwee got out of the car and approached the man. The two introduced themselves and the man said he could get them to their South Orange destination in exchange for a ride. McElwee then returned to the car and asked plaintiff what he thought of the man's proposal. Plaintiff responded, "No don't. I just found out where we are, don't let this guy in the car." McElwee replied, "What could it hurt?" Plaintiff countered, "It could hurt a lot. We're not in Union ... we don't know what could happen.... This place is worse than New York." McElwee replied, "Well, it's my car. If I want him in the car, I need the directions." McElwee let the man into the car. Shortly after McElwee drove away, the man put his right arm around plaintiff, and put a gun to plaintiff's head with his left arm. The man told McElwee to pull over. The man asked for money and also demanded that plaintiff turn over the gold necklace that he was wearing. While plaintiff was in the process of handing over the necklace, the man shot him. The bullet went through plaintiff's forearm and into the left side of his back. The man then exited the vehicle and told the boys to leave. The boys drove away, but stopped shortly thereafter to call an ambulance. Although McElwee moved for summary judgment based on the "sudden emergency doctrine," the motion judge sua sponte 832 raised the issue of duty. The judge determined that McElwee did not owe a duty to plaintiff because the criminal act of the gunman was not reasonably foreseeable. Plaintiff's motion for reconsideration was denied. In New Jersey, it is now well-settled that there is no bright line rule that determines when one owes a legal duty to prevent a risk of harm to another. "Duty" is a fluid concept. See Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110. (1993). Whether a legal duty is owed and the scope of that duty is generally a matter of law for the courts to decide on a case by case basis. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996); Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (1984). The imposition of a duty depends on the interplay of many factors, including: (1) the relationship of the parties; (2) the nature of the attendant risk; (3) the ability and opportunity to exercise control; (4) the public interest in the proposed solution; and, most importantly; (5) the objective foreseeability of harm. Alloway v. Bradlees, Inc., 157 N.J. 221, 230, 723 A.2d 960 (1999). In deciding whether to impose a duty, these factors must be "identified, weighed and balanced" by the court. Ibid. (citations omitted). The court's decision in this regard must be "fact specific and principled." Ibid. (citations omitted). Ultimately, Supreme Court cases repeatedly emphasize that the question of whether a duty exists is one of "fairness" and "public policy." Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110; Accord Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502, 694 A.2d 1017 (1997). Thus, "the essential question is whether `the plaintiff's interests are entitled to legal protection against the defendant's conduct.' Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct." Wytupeck v. Camden, 25 N.J. 450, 461-62, 136 A.2d 887 (1957) (quoting Prosser on Torts, § 36 (2d ed.)). Of all the factors noted above, "foreseeability" has generally received the greatest attention in the case law. The question of whether harm to another is "foreseeable" is capable of objective analysis and is based on the "totality of circumstances." Clohesy, supra, 149 N.J. at 508-509, 694 A.2d 1017. See J.S. v. R.T.H., 155 N.J. 330, 337, 714 A.2d 924 (1998) (noting that foreseeability of harm is the "foundational" element in the duty analysis and is "susceptible to objective analysis"); Butler v. Acme Markets, Inc., 89 N.J. 270, 276, 445 A.2d 1141 (1982) (stating that foreseeability of criminal acts of third parties is the "crucial" factor). "The totality of circumstances standard [in determining foreseeability] encompasses all the factors a reasonably prudent person would consider." Clohesy, supra, 149 N.J. at 508, 694 A.2d 1017. Applying the above factors to this case, it is apparent to us that fairness permits the imposition of a duty under these circumstances. The relationship of driver and passenger has long been recognized in the law as one in which the driver, by reason of his or her control exercised over the motor vehicle, is required to exercise reasonable care for the safety of his or her passengers. Cohen v. Kaminetsky, 36 N.J. 276, 283-84, 176 A.2d 483 (1961). Likewise, it cannot be gainsaid that every teenager of driving age has been admonished by his or her parent not to pick up hitchhikers or to give rides to strangers. Undoubtedly, the wisdom of this admonishment is derived from a commonly held belief, grounded in experience, that danger lurks when strangers enter vehicles. Further, logic dictates that the foreseeable danger arising from a breach of this admonishment stems from intentional misconduct at the hands of a stranger rather than from negligent conduct. Therefore, common experience informs us that inherent in a driver's decision to accede to the 833 request of a stranger for a ride, is the foreseeable risk of serious harm resulting from the stranger's intentional misconduct. Obviously, if the driver of the vehicle is at a risk of danger, the same risk exists for other occupants of the vehicle. In this case, if McElwee was at risk of harm, plaintiff was at risk of harm. In addition, the law does not require the defendant to foresee the exact manner in which the harm may be manifested. The plaintiff need not prove that McElwee should have foreseen that the assailant would use a gun to harm him. See Clohesy, supra, 149 N.J. at 514-15, 694 A.2d 1017 (where the court held that as long as some foreseeable risk of harm was presented from a third person's intentional conduct, "it was foreseeable that over the course of time an individual would enter the parking lot and assault a Foodtown customer. Theft offenses frequently escalate into more violent crimes"). Lastly, because it does not appear to us highly extraordinary that a stranger who invites himself into a motor vehicle would use force on its occupants, if McElwee is found to be negligent in permitting the stranger to enter the vehicle, his negligence could be found to be a proximate cause of plaintiff's injuries. See J.S., supra, 155 N.J. at 352, 714 A.2d 924 (holding that wife's negligence in failing to warn of her husband's sexual abuse could be found to be a proximate cause of the plaintiff children's physical and emotional injuries despite husband's criminal conduct). We recognize that McElwee's version of the events differs somewhat from plaintiff's version. For example, McElwee stated that both boys were out of the car making the phone call when a stranger, who identified himself as "Victoria" approached them and offered to help them get back on track. He believed, although he could not be certain, that plaintiff agreed to the offer. Victoria entered the car without any express invitation. The differences, however, even if viewed as true by a jury, might affect the question of negligence but would not change our view as to the nature of McElwee's duty. Irrespective of whether plaintiff acceded to the stranger's offer to help them find their way, McElwee conceded that he never trusted anyone from the "streets." In addition, McElwee had "a lot of doubts" about the situation that was developing. At the end of the day, it was McElwee who was in control of the vehicle, and it was he who admitted knowledge of a risk by permitting Victoria to enter it. In conclusion, we hold that a duty exists under the circumstances of this case. We also hold that a jury question is presented as to whether, under the circumstances of the case as the jury finds them to be true, McElwee was negligent in permitting the assailant to enter the vehicle. If McElwee is found to have been negligent, the jury must also decide whether his negligence was a proximate cause of plaintiff's injuries. Reversed and remanded. NOTES [1] The status of Christine McElwee, Christine Hogan, and James Hogan is not readily apparent from the record. In any event, plaintiff's brief does not address their liability. Accordingly, we affirm the judgment in their favor.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510066/	760 A.2d 833 (2000) 334 N.J. Super. 669 Michael MALONE, Plaintiffs, v. ARAMARK SERVICES, INC., Defendants. Superior Court of New Jersey, Law Division, Middlesex County. Decided March 8, 2000. 834 Shaun R. Simon, Morristown, for plaintiffs (Ravin Sarasohn Cook Baumgarten Fisch & Rosen, attorneys, Short Hills). Richard M. DeAgazio, Short Hills, for defendants (Budd Larner Gross Rosenbaum Greenberg & Sade, attorneys). CHAMBERS, P.J.S.C. This lawsuit is a wrongful termination case arising out of the employment of Michael Malone with the defendant Aramark Services, Inc. (improperly pleaded as Aramark Corporation in the complaint). Malone, a long time employee of the defendant, was out of work due to a work related injury for a period of over a year. When he attempted to return to work, he was advised that his position had been filled and that no other position was available to him. As a result, he was discharged. 835 Independent of any rights he may have under the New Jersey Law Against Discrimination, the New Jersey Workers Compensation Law, and the federal Family and Medical Leave Act, plaintiff has moved to amend the complaint to add a separate and distinct cause of action for breach of a duty to hold Malone's job open him while he was out of work due to the work-related medical problem. The motion is denied, because no such cause of action exists under New Jersey law. The factual background for this lawsuit is as follows. Defendant is in the business of providing food and cafeteria services to businesses, schools, hospitals and other facilities. Malone was the sole chef working at defendant's refinery account in Linden, New Jersey. This location is a small one for the defendant, serving 200 to 400 people, and Malone was the only chef working there, with no assistant chef or cook. In December, 1994, Malone was placed on medical leave due to a work-related back injury, and he was unable to return to work until January 3, 1996, over a year later. In connection with the injury, he had back surgery in March, 1995 and knee surgery in June, 1995. He was out of work from December, 1994 to June, 1995 on accumulated 130 sick days. He was then out on unpaid medical leave from June, 1995 to September, 1995 and on additional unpaid medical leave from October 1, 1995 to December 9, 1995. During this time, defendant was provided with a series of doctor's notes which did not indicate with certainty when the plaintiff would be returning to work. (The note of April 19, 1995 indicated his estimated return to work date was July 1, 1995; the May 24, 1995 note stated he would return no earlier than July 1, 1995; the November 22, 1995 note said at least two more weeks pending a functional capacity evaluation; and, finally, the December 18, 1995 note indicated a January 3, 1996 return to work date.) On January 3, 1996, over a year after Malone left his job for medical reasons, he asked to return to work. At that time, he was advised that his position had been filled and, that no other comparable position was available. Accordingly, he was terminated. This lawsuit has been filed by the administratrix for the Estate of Michael Malone (Malone died of causes unrelated to this litigation), alleging violations of the New Jersey Law Against Discrimination, asserting a Woolley claim under Woolley v. Hoffmann-LaRoche, 99 N.J. 284, 491 A.2d 1257, as modified, 101 N.J. 10, 499 A.2d 515 (1985), and claiming wrongful retaliation in violation of the workers' compensation law. N.J.S.A. 34:15-1 to N.J.S.A. 34:15-28.1. In addition to these claims, plaintiff is now seeking to add a claim for breach of a duty to hold a job open for a person out of work due to a medical condition. In the proposed amended complaint, plaintiff asserts that defendant had a "duty to keep Michael Malone's job with them open and/or available for him, so that Michael Malone could return to work when his injuries abated sufficiently to allow him to return to work or when it was otherwise appropriate for him to return to work." Rule 4:9-1 provides that leave to amend a pleading must be "given freely in the interest of justice." Accordingly, a motion to amend must be treated with liberality and without consideration of the ultimate merits of the amendment. See Kernan v. One Washington Park, 154 N.J. 437, 456-457, 713 A.2d 411 (N.J.1998). However, a trial court may appropriately deny leave to amend if the newly asserted claim is not one sustainable as a matter of law. See Interchange State Bank v. Rinaldi, 303 N.J.Super. 239, 257, 696 A.2d 744 (App.Div.1997). The claim plaintiff is seeking to add to the complaint is not one recognized by New Jersey law nor does it make sense to create such a new cause of action. The plaintiff argues that New Jersey's public policy requires an employer to keep an injured employee's job open while the 836 employee is recuperating from an injury, particularly where the injury is work-related. The plaintiff points to the New Jersey Law Against Discrimination, New Jersey Temporary Disability Law and the retaliatory prohibitions in the New Jersey Workers' Compensation Act. Certainly, all of these statutes provide particular protections to workers injured in the work place, and one can correctly say that it is the public policy of the State to provide workers the protections afforded in these statutes. However, plaintiff is seeking broader protections independent of the ones provided by these statutes, relying on the case of Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980). That case holds that an at will employee may not be terminated if the termination is contrary to a clear mandate of public policy. The employee must be able to identify a specific expression of public policy that is being violated. Id. at 72, 417 A.2d 505. While the public policy of New Jersey does accord injured workers significant protections and benefits, it does not accord them the breadth of job protection that the plaintiff is seeking here. Under New Jersey law, an employee at will, such as Malone, can be discharged from employment for any reason whatsoever, with certain specified exceptions. With respect to an employee injured on the job as Malone was, the law accords that employee certain benefits and exceptions to the employee at will doctrine. For example, an employee may have certain contractual benefits that preserve his job while he is out on sick leave, either in accordance with a collective bargaining agreement or an employment contract. In addition, company policy may preserve an employee's job for him while he is out on sick leave under an implied contract theory as set forth in Woolley v. Hoffmann-LaRoche, supra. Indeed, one of the claims plaintiff is making in this case is a claim for benefits under a Woolley theory. Federal law provides injured workers with additional job protections when out of work due to a work related injury under federal law. Under the federal Family and Medical Leave Act, 29 U.S.C.A. 2601 et seq., an employee, such as Malone is allowed up to twelve weeks of leave due to an illness and may not be fired because of the inability to work during that time period. The New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to 34:11B-16, is inapplicable since it provides a leave for care of injured or ill family members but does not deal with leaves due to the worker's illness. The New Jersey Temporary Disabilities Law is also inapplicable, since it provides benefits to disabilities that are not work-related or not covered by the workers compensation law N.J.S.A. 43:21-29. Injured workers also have the protections afforded them under the laws prohibiting discrimination against the handicapped, namely the American Disabilities Act and the New Jersey Law Against Discrimination. Under the American Disabilities Act, a leave of absence from work in order to recuperate or receive treatment may be a reasonable accommodation. See, e.g., Criado v. IBM, 145 F.3d 437, 443 (1 Cir.1998). The extent of the leave will depend on the facts of case. Ibid. However, such a leave may not be indefinite or for an extended period of time. Ibid. There is no blanket requirement that leaves be granted to such an extent that the employee will not be able to perform the job's essential functions. Walton v. Mental Health Ass'n, 168 F.3d 661, 671 (3 Cir.1999). Where leaves of absence were in excess of one year, courts have found the employees incapable of performing their essential job function. Micari v. Trans World Airlines, Inc., 43 F.Supp.2d 275, 281 (E.D.N.Y.1999). Under the New Jersey Law Against Discrimination, excessive absenteeism need not be accommodated even if it is caused by a disability otherwise protected by the Act. Svarnas v. AT & T Communications, 326 837 N.J.Super. 59, 740 A.2d 662 (App.Div. 1999). In the proposed cause of action which the plaintiff is seeking to assert, an employee would be entitled to an indefinite leave, a leave for as long as it takes to recover from the injury. This is a much broader right than that afforded under the laws prohibiting discrimination against the handicapped. An employee injured on the job is entitled to workers compensation benefits. The New Jersey Workers Compensation Law N.J.S.A. 34:15-1, supra, provides employees with certain payments and medical care for work related injuries. An employer is prohibited from retaliation against a worker who seeks workers compensation benefits. N.J.S.A. 34:15-39.1. Retaliation in violation of the statute gives rise to a common law claim by the aggrieved worker for compensatory and punitive damages. Lally v. Copygraphics, 173 N.J.Super. 162, 413 A.2d 960 (App.Div. 1980), aff'd 85 N.J. 668, 428 A.2d 1317 (1981). Accordingly, Malone has a viable cause of action against his employer if the employer retaliated against him by terminating his employment because Malone was seeking or obtained workers compensation benefits. Indeed, Malone has already filed such a claim. Thus, an amendment for that cause of action is not before this court. Plaintiff is seeking more expansive job security for injured workers than offered by workers compensation law. Plaintiff maintains that as a matter of public policy the employer had a duty to hold his job open until Malone was able to return to work. In other words, plaintiff argues that, even if no retaliation occurred, the public policy behind the workers compensation law requires that the job be held open until the worker has recovered from the work related injury. This argument, however, has previously been rejected by New Jersey courts. In Galante v. Sandoz, 192 N.J.Super. 403, 470 A.2d 45 (Law Div.1983), aff'd 196 N.J.Super. 568, 483 A.2d 829 (App.Div.1984), the plaintiff was terminated because he had accumulated absences in excess of those allowed by the employer. In that case, seventy-five percent of the employee's absences were attributable to a work-related injury. While plaintiff could not prove retaliation in violation of the workers' compensation statute, he maintained that terminating a worker due to absences caused by work related injuries violated the public policy behind the Worker's Compensation Law. supra. The court disagreed, finding that the Workers Compensation Law is insurance, providing compensation for losses without proof of fault. Id. at 408-409, 470 A.2d 45. It does not entitle workers to have their jobs held for them until they recuperate from work related injuries. Ibid. It would be completely inappropriate in this instance for a court to further encroach into this sensitive area without a clear expression by the legislature. Thus, to expand the breadth of this statute, as the employee would have us do, to preclude the neutral application of an absence control policy by an employer to an employee who was once injured in a work related accident is to confer upon the employee a benefit not contemplated by the legislature; namely unlimited absences from work with impunity. Id. at 409, 470 A.2d 45. The holding in Galante v. Sandoz is consistent with the majority view in subsequent case law throughout the country. See Finnerty v. Personnel Board of City of Chicago, 303 Ill. App.3d 1, 303 Ill.App.3d 1, 236 Ill.Dec. 473, 707 N.E.2d 600 (1999) (an employer may fire an employee in Illinois for excessive absenteeism, even if the absenteeism is caused by a compensable injury); Weinzetl v. Ruan Single Source Transportation, Co., 587 N.W.2d 809 (Iowa Ct.App.1998) (termination of employment due to absenteeism caused by a work-related injury did not violate Iowa public policy); Barker v. Dayton Walther Corporation, 56 Ohio App.3d 1, 564 N.E.2d 738 (1989)(company policy that discharged all employees unable to work for six 838 months, whether due to a work-related or non work-related injury, did not violate Ohio public policy); Pierce v.. Franklin Electric Co., 737 P.2d 921, 925, (Okla.1987) (Oklahoma Workers Compensation Act, prohibiting retaliation against a worker who seeks workers compensation benefits, does not guarantee continued employment for the injured worker while recovering from the injury; the worker may be terminated due to absence from work; and, in so holding, the court noted that an "employer must operate economically and should be allowed to purchase the services his business requires.") Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 416 S.E.2d 634 (1992)(South Carolina's workers' compensation statute does not give a worker a right to a reasonable period of time for rehabilitation after a work-related injury); Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. 1993) (Tennessee has a clear public policy protecting employees from termination for asserting a workers' compensation claim; here, however, an employee out on a work-related injury may be terminated where there is no connection between the claim for workers' compensation benefits and termination). A case widely cited for this majority view is Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 481 N.Y.S.2d 22, 470 N.E.2d 820 (1984). New York State also has a statute prohibiting discrimination against an employee who makes a workers' compensation claim. To violate the act, there must be a causal connection between the claim for workers' compensation benefits and the employer's conduct. See id. at 134, 481 N.Y.S.2d 22, 470 N.E.2d 820. As a result, in the absence of evidence of retaliation, an employee could be discharged due to a lengthy absence caused by a work related injury without violating the workers' compensation law. A neutral employment policy applied to all employees does not violate the act, particularly where it is based on a legitimate business interest. See Id. The court explained the problems in permitting an employee to hold a position for an extended period of time, despite the employee's inability to perform the job due to an injury, writing: An employer should be permitted to take reasonable steps to secure a steady, reliable, and adequate work force.... `The absence of a public employee from his position for a prolonged period unduly impairs the efficiency of an office or agency. In many cases, the duties of the absent employee must be absorbed by the remaining staff because temporary replacements are difficult to obtain. Continued performance of the business of government necessitates that there be a point at which the disabled officer may be replaced.' These concerns are not diminished by the circumstances that the employee was injured on the job, rather than off. To forbid absolutely any detrimental treatment of an injured worker would transform section 120 into a job security clause, which is contrary to the Legislature's intent.... Id. at 135, 481 N.Y.S.2d 22, 470 N.E.2d 820 (citations omitted). While the Duncan case dealt with a public employee, the reasoning applies to the private sector as well. See Weinzetl v. Ruan Single Source Transportation, supra. Rejecting the majority view, one state has found that the right to time off from work to recover from a work related injury is implicit in its workers' compensation act. Lindsay v. Great Northern Paper Co., 532 A.2d 151 (Me.1987). However, in that case there was a strong dissent relying on the Duncan case. While language in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (Kan.1988) suggested that Kansas may also provide this broad protection to workers, that interpretation has been rejected by subsequent courts looking at Kansas law. See, e.g., Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1436 (D.Kan. 1995). Similarly, in the California case of Judson Steel Corp. v. Workers Comp. Appeals Bd., 22 Cal.3d 658, 150 Cal.Rptr. 250, 839 586 P.2d 564 (1978), an employee with a work-related injury was terminated after an absence of more than one year. The termination was found to be retaliation in violation of the workers compensation act because other workers in similar circumstances had been given extensions beyond the year. As the dissent states, the court found retaliation even though there was no evidence that the employer did so in retaliation for assertion of the workers' compensation claim. Id. at 671, 150 Cal.Rptr. 250, 586 P.2d 564. However, even in that case, the California court did not recognize a right to have a job held open for the employee while recuperating from a work-related injury. The court said; "we emphasize that our present holding in no way mandates that an employer retain all employees who sustain injuries on the job." Id. at 667, 150 Cal.Rptr. 250, 586 P.2d 564. Thus, the majority view is that an employer need not hold an employee's job open for as long as it takes the employee to recover from a work related injury. Accordingly, there is no clear mandate of public policy supporting plaintiff's Pierce claims. Requiring a job to be held open until the employee recovers is not always practicable. Unfortunately, it may take many months, or even a year or more for a worker to recover from the injury sufficient to be able to return to work. (In one reported decision, an employee, who had been injured on his third day on the job, claimed retaliatory discharge in violation of the workers' compensation statute after being out of work for four years. The New York courts sensibly rejected the claim. Conklin v. City of Newburgh, 205 A.D.2d 841, 613 N.Y.S.2d 287 (N.Y.App.Div.1994).) In the meantime the job still has to get done, and the workplace still must function. The majority rule makes sense. While, the laws prohibiting discrimination against the handicapped require that some reasonable accommodation must be made to an injured worker, at a certain point holding a job open for an extensive or indeterminate period of time becomes unreasonable. Having a worker out on extended leave in many circumstances puts significant pressure on other workers in the work place and management, which either must absorb the work within the workforce present or obtain and train temporary help. Where there is uncertainty about whether an injured the employee will ever return to work, the temporary worker either lives with the insecurity that he or she will lose the job once the employee returns to work, or will seek other more secure employment, leaving management once again in the position of having to obtain and train further temporary help. In addition, it is not unusual at any particular time for more than one worker to be out on leave for a work-related injury. Over time, others may receive work-related injuries requiring their absences from the workplace for lengthy or indeterminate periods of time. When this situation occurs not once, but multiple times in the work place, it becomes more untenable and difficult for the remaining workers and management to accommodate a rule requiring that a job be held open indefinitely for a worker to recover from a work-related injury. Current law does provide substantial protection and benefits to injured workers. The workers' compensation statute provides employees with compensation for any work-related injuries. It provides for payment of their medical bills and provides financial compensation for the injuries sustained in a work-related accident regardless of fault. Employers may not retaliate against workers seeking these benefits. The federal Family and Medical Leave Act, 29 U.S.C.A. § 2601, et seq., gives qualified workers a leave of up to 12 weeks for an illness, including a work related injury. The laws prohibiting discrimination against the handicapped provide all employees, whether suffering from a work-related injury or a non-work related injury, rights to reasonable accommodations *840 for their injuries, which may include a limited leave. In addition to these benefits, an employee may have certain contractual benefits and rights to a leave of absence from work under a collective bargaining agreement or an employment contract. In addition, under a Woolley theory, company policy may provide an employee with a leave of absence from work. For all of these reasons, public policy does not require that an employee's job be held open for the employee for as long as it takes for the employee to recover from a work related injury. Plaintiff's motion to amend the complaint to assert this novel cause of action is denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510148/	588 S.W.2d 954 (1979) Jesus Ovalles MARTINEZ, Appellant, v. The STATE of Texas, Appellee. No. 61547. Court of Criminal Appeals of Texas, Panel No. 2. November 7, 1979. Martin Underwood, court appointed, Comstock, Roy E. Greenwood, Austin, for appellant. Thomas F. Lee, Dist. Atty., Del Rio, Robert Huttash, State's Atty., Austin, for the State. Before ODOM, TOM G. DAVIS and CLINTON, JJ. OPINION CLINTON, Judge. This is an appeal from a conviction for the offense of burglary of a habitation wherein the jury assessed appellant's punishment, enhanced by one prior felony conviction, at confinement in the Texas Department of Corrections for a term of twenty years. At the outset appellant contends that the trial court erred in denying him an opportunity to voir dire the jury panel on the full range of punishment in that the trial court overruled his motion to inform the jury panel of the range of punishment applicable to an offense which is enhanced by one prior felony conviction. We agree and, accordingly, reverse the judgment below. The record reflects that appellant filed a pretrial motion denominated "Motion Giving Notice of Defendant's Intent to Inform Jury Panel on Voir Dire of Range of Punishment," which provided in pertinent part: "Both the State and the Defendant have a right to question prospective jurors as to their ability to consider the full range of punishment. The range of punishment provided in the event the State proves the allegations of this indictment is from 15 years to 99 years, or life. [citation omitted] Defendant will be unable to intelligently exercise his challenges for 955 cause or peremptory challenges if he cannot examine the panel on the full range of punishment.... [D]efendant respectfully prays that this Court order that Defendant's counsel be allowed to inform the jury panel of the full range of punishment in the event that the allegations of the indictment are proven." The motion was denied by the trial court, a ruling complained of by appellant in his motion for new trial. In its remarks to the panel, the trial court did not touch on punishment. However, prospective jurors were informed by the prosecution during voir dire examination that the offense on trial is a first degree felony punishable by imprisonment from five to ninety-nine years or life and qualified them on that basis.[1] In his turn appellant pretermitted any mention of punishment, thereby avoiding being repetitive of the explanation made by the State and also deferring to ruling of the trial court denying his motion for leave to inform the prospective jurors of enhanced range of punishment. At the punishment phase,[2] of course, the jury was charged on enhancement.[3] The question thus presented is whether, in the circumstances of this case, appellant was erroneously denied a fair opportunity to interrogate prospective jurors on matters of punishment in order intelligently to exercise his right to challenge for cause or peremptorily? Bias or prejudice regarding the law applicable to punishment is statutorily specified as a ground for challenge for cause by the State and the accused, Article 35.16(b)3 and (c)2, V.A.C.C.P., and is a proper area of inquiry for peremptory challenges as well as for cause, Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App.1979); Smith v. State, 513 S.W.2d 823, 826[4] (Tex.Cr.App.1974); Reeves v. State, 491 S.W.2d 157, 161[5] (Tex. Cr.App.1973). As to aspects of punishment relating to the primary offense the law in this respect is free from any doubt, and the test for ascertaining harm in such cases is "whether the trial judge's limitation of the voir dire examination amounted to an abuse of discretion, thus depriving appellant of a valuable right," Emanus v. State, 526 S.W.2d 806, 808 (Tex.Cr.App.1975). That the punishment ultimately assessed by a jury is one of two or more alternatives it is properly authorized to select has dictated that counsel for the parties be permitted to make appropriate inquiries concerning the alternatives, notwithstanding their conditional or contingent application. Thus, views concerning the former suspended sentence law were examined in Plair v. State, 102 Tex. Crim. 628, 279 S.W. 267 (Tex.Cr. App.1925); attitude towards probation was explored in Houston v. State, 496 S.W.2d 94, 95[6] (Tex.Cr.App.1973); feelings about 956 assessing a minimum punishment should have been allowed in Mathis v. State, supra. It is the availability of alternatives, yet an uncertainty at the time of voir dire examination of their final determination by the jury, that render the examination as to possible punishments necessarythe occasion, under our system of jury trial, will never again be presented. So it was, we discern, that the Court came to hold recently in Bevill v. State, 573 S.W.2d 781, 783 (Tex.Cr.App.1978) that there was a "valid reason" to permit the State to explain to a jury panel the range of punishment applicable where one prior conviction was alleged in the indictment pursuant to V.T.C.A. Penal Code, § 12.42. The Court pointed out that the jury must answer the factual inquiries of whether enhancement allegations are true and when it found but one was true: "... In this event, it would be the jury's duty to assess punishment. Where the jury may be called upon to assess punishment, both the State and the defendant have a right to qualify the jury on the full range of punishment. Thus, it is proper to inform the jury of the range of punishment applicable to an offense which is enhanced by one prior felony offense." Bevill specifically notes the provisions of Article 36.01, § 1, V.A.C.C.P., that preclude reading enhancement allegations to the jury until the punishment hearing begins,[7] but clearly the Court was not inhibited by them, or by prior expressions of opinion concerning them, in coming to the conclusion it did. Statements of the rule in, e. g., Castillo v. State, 494 S.W.2d 844, 845[8] (Tex.Cr.App.1973) and Heredia v. State, 508 S.W.2d 629[9] (Tex.Cr.App.1974), that enhancement allegations must not be read to the jury at the outset of trial are not contradicted by the holding of Bevill that both the State and the accused have the right "to inform" the jury of the range of punishment applicable to an enhanced offense under Section 12.42(a), (b) or (c), supra, and to qualify it on the full range of punishment. Certainly, one can inform generally of applicable punishment without reading the precise allegations for enhancement, and thereby avoid what some have regarded as jeopardizing the presumption of innocence.[10] Thus harmonizing the Bevill conclusion and the Castillo rule, we adhere to both and hold that the admonition of Article 36.01, § 1, suprathat unless otherwise excepted allegations of prior convictions for purpose of enhancement under Section 12.42(a), (b) or (c), supra, shall not be read to the jury until hearing on punishment is heldis not offended by either the State or the accused informing and qualifying prospective jurors as to the full range of punishment applicable to the enhanced offense, *957 in order intelligently to exercise peremptory challenges.[11] Accordingly, we conclude that refusal of the trial court to allow appellant to inform and to question prospective jurors concerning the minimum punishment for the enhanced offense deprived him of a valuable right[12] and was, therefore, an abuse of discretion.[13]Mathis v. State, supra, 576 S.W.2d at 839, Mathis v. State, 167 Tex. Crim. 627, 322 S.W.2d 629, 631-632 (1959) and cases cited in each. Judgment of the trial court is reversed and the cause remanded. NOTES [1] "That is the range of punishment. Now, is there any of you who could not accept that range of punishment for a first degree felony? Is there any of you who could not sit on this jury knowing that that range of punishment is possible in a first degree felony? Is there any of you who could not consider the range of punishment of 5 to 99 years or life? So, I take it by your silence that you could consider the range of punishment as set out by law." [2] To admission of documentary evidence showing the prior conviction alleged in the indictment, appellant made no objection. [3] "If you believe from the evidence beyond a reasonable doubt that all of the allegations set out in Paragraph Two of the indictment are true, you will ... assess the punishment of the defendant at confinement ... for any terms of years not more than 99 or less than 15, or for life." [4] "Asking about bias against parts of the range of punishment is certainly permissible. Indeed, bias against any of the law upon which the defendant is to rely is ground for a challenge for cause and a proper matter for query. Art. 35.16(b)(2), V.A.C.C.P.; Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973)." [5] "It is proper to question the jury panel to determine whether there exists a prejudice or objection to assessing the range of punishment provided for by statute." [6] The rationale was stated as follows: "The jury was selected both to determine guilt or innocence and in the event of conviction, to decide upon appropriate punishment and upon the the question of probation. The only chance either the State or the defense had to interrogate the prospective jurors on their prejudice or attitude towards probation was on voir dire. It was obviously proper to permit such examination." And it has been held that a motion in limine by an accused to preclude the State from mentioning his application for probation during void dire is untenable for that very reason, White v. State, 478 S.W.2d 506, 508 (Tex.Cr. App.1972). [7] "The indictment ... shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment ... reciting such convictions shall not be read until the hearing on punishment ..." [8] "Article 36.01, § 1 ... leaves no doubt that the enhancement portion of an indictment is to be read only at the hearing on punishment, unless the reading of the prior convictions is jurisdictional. This rule applies with equal force to both the accused and the State. (Emphasis in original.)" [9] Permitting the reading to the jury, at the commencement of the guilt stage of trial, of that portion of indictment alleging a prior felony conviction, over objection, is reversible error by reason of Article 36.01, § 1, supra. [10] In Spencer v. Texas, 385 U.S. 554, 575, 87 S. Ct. 648, 659, 17 L. Ed. 2d 606 (1967) (Warren, C. J., dissenting), it was argued: "A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a `bad man,' without regard to his guilt of the crime currently charged. Of course it flouts human nature to suppose that a jury would not consider a defendant's previous trouble with the law in deciding whether he [had] committed the crime currently charged against him." [11] Our holding does not embrace challenge for cause since appellant has not protected the record in that respect. See Smith v. State, 513 S.W.2d 823, 826 (Tex.Cr.App.1974) and Mathis v. State, 576 S.W.2d 835, 837 (Tex.Cr.App. 1979). [12] The State argues that a good reason supporting the ruling of the trial court is "to prevent tipping the jury off that the Defendant is a convicted felon," which "would only prejudice the Defendant's rights." In this case, however, not only was appellant willing to risk possible prejudice, if any, but also he was more anxious to claim the other right to ascertain whether awareness of a prior felony conviction would foreclose a prospective juror from fairly and impartially considering the minimum punishment for the enhanced offense. We cannot say an accused should be precluded from exercising his options according to his own rights if he insists on doing so. [13] The State further contends by failing to avail himself of the opportunity to query the panel on the minimum of five years for the primary offense, appellant must have been satisfied that any juror able to consider that minimum would have little difficulty in levying a fifteen year minimum. What the contention overlooks is that the latter arises in a quite different and perhaps significantly more stressful setting that under the ruling of the trial court would not be viewed by the juror until after conviction. One may well be prepared to consider five years for a first time burglary of a habitation but absolutely reject the notion of only fifteen years for an unreformed intruder who this time invades a rural residence in southwest Texas. Well knowing that the State could and would prove the prior burglary conviction against him, appellant had a greater need to test the attitudes of prospective jurors on the reality of enhanced punishment than to perpetuate the fiction of a five year minimum. Thus it is not a cure for abuse of judicial discretion, constraining him from getting to the real issue, that an accused decline to reiterate a practical irrelevance the prosecutor has already stated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510164/	760 A.2d 541 (2000) Edward C. GIBBS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. No. 263, 1999. Supreme Court of Delaware. Submitted: June 20, 2000. Decided: August 28, 2000. E. Stephen Callaway, Office of Public Defender, Georgetown, Delaware, for appellant. Kim Ayvazian, Department of Justice, Georgetown, Delaware, for appellee. Before WALSH, HOLLAND and BERGER, Justices. HOLLAND, Justice: The defendant-appellant, Edward C. Gibbs, was charged with Second Degree Rape Without Consent.[1] The Department of Probation and Parole filed a violation of probation report with the Superior Court based upon Gibbs' arrest for that charged offense. Following a jury trial in the Superior 542 Court, Gibbs was acquitted of the charge. Gibbs was subsequently found to have violated his probation and was sentenced to be incarcerated for 6 years at Level V. This is Gibbs' direct appeal. The sole issue presented to this Court is an argument that it was abuse of discretion for the Superior Court not to appoint counsel to represent Gibbs at the probation revocation hearing. We have concluded that the Superior Court did abuse its discretion. Facts On November 17, 1998, Gibbs was arrested on a charge of Rape Second Degree Without Consent for an offense that allegedly occurred between November 5th and 6th, 1998. At the time of his arrest, Gibbs was on probation for a prior offense. Gibbs was indicted on December 14, 1998 by a Sussex County grand jury on the charge of Second Degree Rape. Due to Gibbs' probationary status at the time of his arrest, the Department of Probation and Parole filed a violation of probation report on May 19, 1999 with the Superior Court in Sussex County based upon the charged offense. The report also alleged that Gibbs failed to report his change of residence in a timely fashion, and that he violated his curfew. On May 20, 1999, Gibbs received Notice of his Violation of Probation hearing pursuant to Superior Court Criminal Rule 32.1. The Notice stated that the hearing was scheduled for June 4, 1999, and that Gibbs, if he desired to be represented by counsel at the hearing, should contact his attorney. On May 27, 1999, Gibbs went to trial on the charge of Rape Second Degree Without Consent. Gibbs was represented at trial by appointed counsel. Jury deliberations began on the same day as the commencement of the trial and continued for three hours. The jury returned a "not guilty" verdict. On May 27, 1999, immediately upon the conclusion of the trial, Gibbs was arrested on a new charge of Rape Second Degree Without Consent. This incident was also alleged to have occurred between November 5th and 6th, 1998. That new charge, however, involved a different victim. On June 4, 1999, eight days after his acquittal on the first charge, Gibbs appeared without counsel for his scheduled Violation of Probation ("VOP") hearing. The hearing was conducted before the same judge who presided at Gibbs' criminal trial. At the hearing, the Department of Probation and Parole acknowledged that Gibbs had been acquitted on the first charge, but requested that the Superior Court permit an amendment to the original violation of probation report filed on May 19, 1999 to reflect the new arrest date of May 27, 1999 for the second charge. Without either ruling on the request for an amendment or hearing any evidence from the State or Gibbs, the judge sua sponte found by a preponderance of the evidence that an offense had been committed and that Gibbs had violated his probation. The judge stated that his finding was based on the evidence he heard at the May 27th trial and that, although Gibbs was found not guilty by the jury, the standard of proof for a finding of guilt was lesser at a VOP hearing, i.e., preponderance of the evidence. The judge revoked Gibbs' probation. Gibbs was sentenced immediately to seven years and nine months of incarceration at Level V, with credit for time served. After Gibbs serves six years of the sentence, the balance will be suspended for Level IV Home Confinement, which could subsequently be reduced to a lower level of supervision when deemed appropriate by the probation officer. After the judge's finding of a probation violation and sentencing, the State then sought to have Gibbs' Risk Assessment Tier Level, as a sex offender, increased from Level II to Level III based on two 543 prior convictions.[2] The judge determined that Gibbs should have appointed counsel present before he would consider the State's request because placing Gibbs in a higher tier level would subject him to more severe consequences and a closer level of supervision by the State. The judge decided to appoint counsel for Gibbs and schedule another hearing to address the issue of Gibbs' Risk Assessment Tier Level. Violation Of Probation Hearing The United States Supreme Court has held the "minimum requirements of due process" requires that a probationer receive notice of the alleged violations of probation, an opportunity to appear and present evidence, a conditional right to confront adverse witnesses, and an independent decisionmaker.[3] The Court stated that although these requirements provide substantial protection to the probationer, there may be circumstances where representation by counsel may also be necessary. Despite the informal nature of the [revocation of probation] proceedings and the absence of technical rules of procedure or evidence, the unskilled or uneducated probationer or parolee may well have difficulty in presenting his version of a disputed set of facts where the presentation requires the examining or cross-examining of witnesses or the offering or dissecting of complex documentary evidence.[4] Although the United States Supreme Court did not announce a specific constitutional rule with respect to the requirement of counsel at revocation of probation hearings, it did hold that there remained certain cases in which fundamental fairness the touchstone of due process would require that the State provide at its expense counsel for indigent probationers or parolees. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.[5] The Delaware Superior Court Criminal Rules set forth procedural requirements regarding revocation of probation hearings that are intended to comport with the protections of the Due Process 544 Clause of the Fourteenth Amendment.[6] Delaware Superior Court Criminal Rule 32.1 provides: (a) Revocation of partial confinement or probation. Whenever a person is taken into or held in custody on the grounds that the person has violated a condition of partial confinement or probation, the person shall be brought without unreasonable delay before a committing magistrate or a judge of Superior Court for the purpose of fixing bail and, if not released on bail, shall be afforded a prompt hearing before a judge of Superior Court on the charge of violation. The person shall be given: (A) Written notice of the alleged violation; (B) Disclosure of the evidence against the person; (C) An opportunity to appear and to present evidence in the person's own behalf; (D) The opportunity to question adverse witnesses; and (E) Notice of the person's right to retain counsel and, in cases in which fundamental fairness requires, to the assignment of counsel if the person is unable to obtain counsel. (b) Modification of partial confinement or probation. The requirements of subdivision (a) of this rule shall apply before the terms or conditions of partial confinement or probation can be modified, unless the relief to be granted to the person on partial confinement of probation upon the person's request or the court's own motion is favorable to the person, and the attorney general, after having been given notice of the proposed relief and a reasonable opportunity to object, has not objected. An extension of the term of partial confinement or probation is not favorable to the person for purposes of this rule.[7] Gibbs' Rights Denied The Superior Court has broad authority to terminate probationary sentences "at any time."[8] The Superior Court also has the authority to revoke Gibbs' probation notwithstanding his acquittal of criminal charges involving the same conduct that gave rise to the violation of probation hearing.[9] In Gibbs' case, this Court must determine whether the circumstances of the VOP hearing comported with the requirements of Rule 32.1 and if fundamental fairness required the appointment of counsel. The record reflects that the violation of probation hearing conducted by the trial judge failed to comport with the requirements of Superior Court Criminal Rule 32.1. According to the VOP hearing transcript, the trial judge did not give Gibbs an opportunity to present evidence in his own behalf or even require the State to present any adverse witnesses for cross-examination regarding the alleged violation of probation on which the original report was based. Instead, acknowledging that Gibbs had been acquitted on the criminal charges involving the same alleged conduct, the trial judge sua sponte decided to base his probation violation decision on the evidence presented at the May 27th criminal trial. Consequently, the trial judge simply began the violation of probation hearing by announcing that he found by a preponderance of the evidence heard at the criminal trial that Gibbs had committed the criminal conduct for which he had been acquitted, thus violating his probation. The record reflects that, after the trial judge summarily announced his sua sponte finding of a violation of probation based on 545 what he heard at Gibbs' May 27th trial, it became clear that Gibbs did not understand the violation of probation proceedings. Nevertheless, the trial judge did not appoint counsel for Gibbs and reopen the hearing. Only after revoking Gibbs' probation did the trial judge decide to provide Gibbs with appointed counsel. That appointment of counsel was only to provide representation for Gibbs during the determination of the Risk Assessment Tier Level to which he should be assigned as a violent sex offender. Although a probationer accused of a violation is not entitled to a formal trial,[10] the person may be entitled to be represented by counsel in an extraordinary case where fundamental fairness so requires.[11] When a violation of probation hearing follows an acquittal after a criminal trial for the same alleged conduct, it is one of the exceptional VOP proceedings in which fundamental fairness requires that the State provide the probationer with counsel. The Superior Court abused its discretion by not appointing an attorney to represent Gibbs at the violation of probation hearing, following his acquittal at the prior criminal trial. The record of events at the June 4th VOP hearing compels our conclusion that the assistance of counsel was necessary to protect Gibbs' due process rights. An attorney could have responded to the trial judge's sua sponte summary finding of a violation of probation without the presentation of any evidence. An attorney would best be able to argue why the facts that led to Gibbs' acquittal also supported a finding of no probation violation, even with the lesser "preponderance" standard of proof requirement. Conclusion The Superior Court abused its discretion by not appointing counsel for Gibbs prior to the commencement of the VOP hearing. Gibbs is entitled to a new VOP hearing (i) upon notice, pursuant to Superior Court Criminal Rule 32.1; and (ii) with Gibbs having the continued representation of appointed counsel. This judgment of the Superior Court is reversed. This matter is remanded for further proceedings in accordance with this Opinion. NOTES [1] 11 Del.C. § 772(a)(1). [2] 11 Del.C. § 4121. All persons convicted or adjudicated delinquent after June 27, 1994 for any sexual offense enumerated in this section, and all persons convicted on or before June 27, 1994 for any of the enumerated sexual offenses who are serving a sentence of probation or parole as of September 1, 1998 shall be designated as a sex offender upon motion of the State and a hearing. Any person designated as a sex offender must register with the State. Sex offenders shall be assigned to a Risk Assessment Tier based on the severity of their crimes, with Risk Assessment Tier III being the highest and carrying the harshest penalty. If the sex offender is designated to Risk Assessment Tier III, that person must comply with the registration requirements for life. Risk Assessment Tiers I and II provide that the sex offender must comply with the registration requirements for a lesser period of time. [3] Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 487, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). [4] Id. at 786-87, 93 S. Ct. 1756. [5] Id. at 790-91, 93 S. Ct. 1756. [6] See Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985). See also Bearden v. Georgia, 461 U.S. 660, 666, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). [7] Supr.Ct.Crim.R. 32.1. [8] 11 Del.C. § 4333. [9] See Brown v. State, Del.Supr., 249 A.2d 269 (1968). [10] See 11 Del.C. § 4334(c) (establishing that a VOP hearing may be informal or summary); see also Brown v. State, Del.Supr., 249 A.2d 269, 272 (1968) (providing that hearsay evidence is admissible at a VOP hearing so long as there is competent evidence to prove the alleged violation.) [11] Perry v. State, Del.Supr., 741 A.2d 359 (1999). See also Jones v. State, Del.Supr., 560 A.2d 1056 (1989).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510130/	21 F.2d 152 (1927) ZIMMERS et al. v. DODGE BROTHERS, Inc. No. 6458. District Court, N. D. Illinois, E. D. June 22, 1927. 153 Winfield S. Williams, of Chicago, Ill., for complainants. Rosenthal, Hamill & Wormser, of Chicago, Ill. (Leo F. Wormser, of Chicago, Ill., of counsel), for defendant. WILKERSON, District Judge. This is a suit for infringement of patent. Defendant, appearing specially, moves to quash and set aside the return of service of summons, and to dismiss the bill for want of jurisdiction, on the grounds (1) that defendant is not doing business in Illinois; and (2) that jurisdiction is not acquired under section 48 of the Judicial Code (Comp. St. § 1030). It appears from the affidavits filed in support of the motion that defendant is a Maryland corporation and is not licensed to do business in Illinois. It is organized for, and does the business of, manufacturing, selling, and dealing in automobiles and automobile parts and accessories. Its principal office is Baltimore, Md. Its factories and principal place of business are located at Hamtramck, Mich., near Detroit, and that is the distributing center for the company's products. It does not have sales agents throughout the country, but sells to independent dealers, who in turn sell to associate dealers or other dealers, or directly to the ultimate purchasers or users. The relation between the company and the dealers is that of vendor and vendee. Dealers are appointed under a written "dealer's agreement," which becomes effective only upon execution by the company at Hamtramck after execution by the dealer. Dodge Brothers, Inc., grants to the dealer the right to purchase Dodge Brothers motor vehicles and parts for resale in a designated territory, but the manufacturer is not bound to deliver any specified quantity. The manufacturer delivers the motor vehicles and parts to the dealer, by delivering them to a common carrier at Hamtramck, Mich., and thereafter the dealer assumes all the risk of loss and damage. The dealer pays for the motor vehicles and parts purchased, either in cash at the defendant's factory or on presentation of sight draft against bill of lading. Each dealer, at his own expense, maintains salesrooms for the purposes of exhibiting and selling the motor vehicles and parts. The defendant has in its employ 25 district representatives, located in 25 of the principal cities of the United States. One of the district representatives is located in Chicago and has an office here. His duties are to 154 look after the interests of the defendant in the Chicago district and to make reports to the defendant from time to time; to investigate and interview men available as dealers and submit recommendations to the officials of the defendant corporation for final approval; to observe if subdealers get an adequate supply of cars from dealers; to assist in settling disputes between dealers; to help the dealers with their sales and service problems; to stimulate sales contests among dealers; to advise the dealers in regard to their used car problems; to inform the dealers about methods of organizing; to talk to salesmen about problems of salesmanship; and to keep the defendant fully informed of conditions prevalent and events happening with respect to the industry in his district. He takes no active part in the sale of motor vehicles or parts; he has no authority to make contracts on behalf of the defendant corporation, nor has he done so; he maintains his office and makes all contracts, relating to the upkeep of his office, on his own behalf, and is reimbursed for his expenditures weekly by checks from Detroit, Mich.; his salary check is sent to him bimonthly from Detroit, Mich.; he takes the lease for office space in his own name; he keeps his bank account in his own name, without reference to his position as district representative; and his letter heads do not represent him to be an agent of Dodge Brothers, Inc. The district representative has no authority to commit the defendant finally in any way. He has a secretary, whose salary is paid by the company's check from Hamtramck. Persons inquiring at the office in Chicago with reference to service or purchase or exchange of Dodge Brothers automobiles are referred to the Dodge dealer in Chicago. This secretary compiles information from dealers and transmits such information to the company at Hamtramck. The principal dealer in Chicago is a Delaware corporation licensed to transact business in Illinois and having its principal place of business in Chicago. It is one of the largest dealers in Dodge Brothers automobiles in the United States. It is an independent corporation in no way affiliated with Dodge Brothers, Inc., except as one of the Dodge automobile dealers. A sale has never been made by or through the district representative to this dealer. The district representative has never undertaken to contract for or in any way bind Dodge Brothers, Inc., in any transaction with this dealer. In opposition to defendant's motion, plaintiffs filed affidavits based for the most part on general knowledge, reputation, and information and belief, that Dodge Brothers, Inc., did a large business within this district; that the district representative was in fact district manager, and spoke finally and authoritatively for defendant; but plaintiffs offered no evidence to prove that defendant had consummated a single business transaction in this district, or that the district representative had in any single instance ever spoken finally or authoritatively. The affidavits also set forth that the furnishings of the office had been there for some time, although the particular person in charge had been changed from time to time by defendant. Plaintiffs showed by the Chicago Telephone Directory that the office telephone number was listed under the heading "Dodge Brothers motor vehicles dist. mgr.," and made affidavit that shortly before the suit was commenced the directory of the building in which the office was located had the name of Dodge Brothers thereon as being in said office; that on the door of the office were the words, "C. A. Lemmon District Manager Dodge Brothers Motor Vehicles," and that, after the commencement of the suit, the words "District Manager" were changed to "Representing." This, however, was contradicted by the affidavits filed on behalf of defendant, which averred that the words on the door had not been changed. There was also an affidavit to the effect that a telephone call to said office brought affirmative answers to the questions whether that was the office of Dodge Brothers and whether that was the district manager's office. Defendant's affidavits set forth that as a matter of office practice such answers were not made, but that in answering the telephone the telephone number merely was given and that the office was called Mr. Lemmon's office. Plaintiffs contend that the presence of the district representative in Chicago and the maintenance of the office, under the circumstances stated above, made defendant amenable to process here. Patent infringement suits are brought under section 48 of the Judicial Code: "In suits brought for the infringement of letters patent the District Courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of 155 business, service of process, summons, or subpna upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought." This statute requires infringement in this district, "conducting business," and "a regular and established place of business." As will hereinafter be shown, a corporation may conduct business without having an office in the district, and may have an office without conducting business. What is meant by "conducting business" in this district and "regular and established place of business"? No exact rule has been laid down by the courts as to what constitutes "doing business," but each case depends upon its own circumstances. The same question has arisen under other provisions of law. Under section 24 of the Judicial Code (Comp. St. § 991), providing for suits based on diversity of citizenship, a foreign corporation is a citizen of the state creating it, but may be served with process in another jurisdiction if and when it is actually "doing business" there. Goldey v. Morning News, 156 U.S. 518, 521, 522, 15 S. Ct. 559, 39 L. Ed. 517; Riverside Mills v. Menefee, 237 U.S. 189, 194, 195, 35 S. Ct. 579, 59 L. Ed. 910. Under section 7 of the Anti-Trust Act (Comp. St. § 8829), authorizing suit "in the district in which the defendant resides or is found," the Supreme Court held that it was required, as under section 24 of the Judicial Code, in order to sustain service of process in a jurisdiction other than that of the corporation's organization, that the corporation should actually be "doing business" there. People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 84, 86, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537; Eastman Kodak Co. v. Southern Photo Materials Co., 47 S. Ct. 400, 71 L. Ed. ___ (decided February 21, 1927). By the Clayton Act, as to suits arising under that act, the jurisdiction of the District Court was enlarged. By section 12 of that act it was provided that action against a corporation might be "not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business, and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found." Comp. St. § 8835k. As the word "found" in previous acts had already been construed to require an actual "doing of business," the Supreme Court decided that the addition of the words "or transacts business" indicated an intent on the part of Congress, in the particular class of litigation arising under the Clayton Act, to permit suit to be brought and process to be served against a corporation in a district other than its residence on a degree or amount of transaction of business which would fall short of "doing business" within previous statutes. Eastman Kodak Co. v. Southern Photo Materials Co., supra. The Supreme Court said as to said section 12 of the Clayton Act: "And we think it clear that, as applied to suits against corporations for injuries sustained by violations of the Anti-Trust Act, its necessary effect was to enlarge the local jurisdiction of the District Courts, so as to establish the venue of such a suit not only, as theretofore, in a district in which the corporation resides or is `found,' but also in any district in which it `transacts business' although neither residing nor `found' therein in which case the process may be issued to and served in a district in which the corporation either resides or is `found'; and further that a corporation is engaged in transacting business in a district, within the meaning of this section, in such sense as to establish the venue of a suit, although not present by agents carrying on business of such character and in such manner that it is `found' therein and is amenable to local process, if in fact, in the ordinary and usual sense, it `transacts business' therein of any substantial character. * * And see Green v. Chicago, B. & Q. Ry., 205 U.S. 530, 533, 27 S. Ct. 595, 51 L. Ed. 916, in which it was recognized that a corporation engaged in the solicitation of orders in a district was in fact `doing business' therein, although not in such sense that process could be there served upon it." The court further held that sufficient transaction of business in the district of suit was shown, under the Clayton Act, even though "such business may be entirely interstate in character and be transacted by agents who do not reside within the district," it being shown that the defendant "in a continuous course of business, was engaged, not only in selling and shipping its goods to dealers within the Georgia district, but also in soliciting orders therein through its salesmen and promoting the demand for its goods through its demonstrators for the purpose of increasing its sales. * * " It is thus apparent that it is not any business activity of a corporation in a district other than that of its residence which will justify the conclusion that it is "doing business" there, so as to make it amenable to process there. Green v. C., B. & Q. R. Co., 205 U.S. 530, 27 S. Ct. 595, 51 L. Ed. 916; Tyler Co. v. Ludlow-Saylor Wire Co., 236 U.S. 723, 35 156 S. Ct. 458, 59 L. Ed. 808; Philadelphia & Reading Co. v. McKibbin, 243 U.S. 264, 37 S. Ct. 280, 61 L. Ed. 710; Toledo Railways Co. v. Hill, 244 U.S. 49, 53, 37 S. Ct. 591, 61 L. Ed. 982; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537; Bank of America v. Whitney Cent. Nat. Bank, 261 U.S. 171, 173, 43 S. Ct. 311, 67 L. Ed. 594; Davis v. Farmers' Co-operative Equity Co., 262 U.S. 312, 43 S. Ct. 556, 67 L. Ed. 996; Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250, 69 L. Ed. 634; American Elec. W. Co. v. Lalance & Grosjean Mfg. Co. (D. C.) 256 F. 34; Hilton v. N. W. Expanded Metal Co. (D. C.) 16 F. (2d) 821; Fowble v. C. & O. R. Co. (D. C.) 16 F.(2d) 504; Holzer v. Dodge Bros., 233 N.Y. 216, 135 N.E. 268; Southeastern Distributing Co. v. Nordyke & Marmon Co., 159 Ga. 150, 125 S.E. 171. The Clayton Act, passed in 1914, as above shown, has enlarged the jurisdiction of District Courts against foreign corporations, but only in the cases arising under that act. On the other hand, section 48 of the Judicial Code, originally passed in 1897, is restrictive. Bowers et al. v. Atlantic G. & P. Co., et al. (C. C.) 104 F. 887; United Shoe Machinery Co. v. Duplessis Independent Shoe Machinery Co. (C. C.) 133 F. 930. Section 48 must therefore be considered in the light of the many decisions with reference to what constitutes "doing business" by a foreign corporation in the district of suit, so as to subject it to process in that district. See American Elec. W. Co. v. Lalance & Grosjean Mfg. Co., supra. As already pointed out, it is not any business activity which will constitute the necessary "doing business." Reference to adjudicated cases shows that quite generally it has been held that "doing business" is not shown by the mere solicitation of orders through an employee, even though from an office employing in addition several clerks and agents, where a corporation has no property in the state other than the office itself, and where the corporation in the foreign district passes there upon whether the orders shall be accepted or not, and, if it does accept, deals directly with the customer; all transactions being completed out of the state where the orders are solicited, and where the agent does not have authority to bind the corporation. Green v. C. B. & Q. R. Co., 205 U.S. 530, 27 S. Ct. 595, 51 L. Ed. 916; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537. This is, of course, carrying on business of a certain kind and extent, but it is not the carrying on of business by the corporation in the foreign state "in such a manner, and to such an extent, as to warrant the inference that it is present there." Green v. C., B. & Q. R. Co., supra; Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264, 37 S. Ct. 280, 61 L. Ed. 710; St. L. & S. W. R. Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77; Tyler Co. v. Ludlow-Saylor Wire Co., 236 U.S. 723, 35 S. Ct. 458, 59 L. Ed. 808; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537; Bank of America v. Whitney Cent. Nat. Bank, 261 U.S. 171, 173, 43 S. Ct. 311, 67 L. Ed. 594; Davis v. Farmers' Co-operative Equity Co., 262 U.S. 312, 43 S. Ct. 556, 67 L. Ed. 996; Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250, 69 L. Ed. 634. Operations through a corporate subsidiary have been held not "doing business." Cannon Manufacturing Co. v. Cudahy Packing Co., supra. Maintenance of an office in the district of suit does not necessarily constitute "doing business"; nor, on the other hand, does failure to maintain such office mean that the corporation is not "doing business" in the district of suit. Green v. C., B. & Q. R. Co., supra; International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479; Tyler Co. v. Ludlow-Saylor Wire Co., supra; Toledo Railways Co. v. Hill, supra; Case v. Smith, Lineaweaver & Co. (C. C.) 152 F. 730; Hilton v. N. W. Expanded Metal Co., supra; Fowble v. C. & O. R. Co., supra. Listing of the corporation's name in the telephone directory, or having its name on the door of an office, does not necessarily constitute "doing business." Philadelphia & Reading R. Co. v. McKibbin, supra; Green v. C., B. & Q. R. Co., supra; Fowble v. C. & O. R. Co., supra; Hilton v. N. W. Expanded Metal Co., supra. The corporation must be engaged in carrying on in a continuous manner a substantial part of its ordinary business, to carry on which it was chartered. Hilton v. N. W. Expanded Metal Co., supra; Fowble v. C. & O. R. Co., supra; Duke v. Pioneer Mining & Ditch Co. (D. C.) 280 F. 883; Toledo R. Co. v. Hill, supra. It is the manner, extent and character of the activities of the corporation in the district of suit which is determinative. See Riverside Mills v. Menefee, 237 U.S. 189, 194, 195, 35 S. Ct. 579, 59 L. Ed. 910. Merely incidental and collateral activities will not suffice. Green v. C., B. & Q. R. Co., supra; Holzer v. Dodge Bros., supra; Toledo R. Co. 157 v. Hill, supra; Duke v. Pioneer Mining & Ditch Co., supra; American Elec. W. Co. v. Lalance & Grosjean Mfg. Co., supra; Southeastern Distributing Co. v. Nordyke & Marmon Co., 159 Ga. 150, 125 S.E. 171. Advertising, good will operations, maintenance of an office, listing its name in the telephone directory, or having its name on a door, while material, do not necessarily constitute "doing business." Cases supra. It is to be noted that, if the district representative in the case at bar should be removed from this district, the established business of the defendant would not be appreciably or substantially affected. The district representative does not engage in transactions directly raising legal obligations. See Rich v. Chicago, etc., R. Co., 34 Wash. 14, 74 P. 1008. In the cases stress has been laid upon the nature of the activities of the corporation in the district of suit. In several cases where, in addition to solicitation, there was collection of payment by the solicitor (International Harvester v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479, and even in this case the court said, page 585 [34 S. Ct. 946], "Upon on this question the case is a close one;" People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537), or adjustment of financial matters, or the adjustment of claims, it was held that the corporation was "doing business" (St. L. S. W. R. Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77; Mutual Life Ins. Co. v. Spratley, 172 U.S. 602, 611, 619, 19 S. Ct. 308, 43 L. Ed. 569; Davis v. Motive Parts Corporation [D. C.] 16 F.[2d] 148). In Chadeloid Chemical Co. v. Chicago Wood Finishing Co. (C. C.) 180 F. 770, in addition to solicitation, there was use of the office as a place of distribution and as a place from which slow debtors were pressed for payment, and there were also representation and recognition by the corporation that the place was its office. In Frey & Son, Inc., v. Cudahy Packing Co. (D. C.) 228 F. 209, a case arising under the Clayton Act, there was present the element of keeping stocks of goods and advertising matter on hand for delivery as well as solicitation in the state. In certain cases, in matters of contract, such as insurance, it was held, on account of the nature of the insurance contract contemplating performance in the district, that the insured, the person directly contracted with, had the right to sue in his own state, the company having entered the state, solicited the insurance, collected money from the citizen, and adjusted claims in the state; it being said "that some fair and reasonable means should exist for bringing such corporations within the jurisdiction of the courts of the state where the business was done, out of which the dispute arises" (Mutual Life Ins. Co. v. Spratley, 172 U.S. 602, 611, 619, 19 S. Ct. 308, 315, 43 L. Ed. 569; Pennsylvania Lumbermen's Mutual Fire Ins. Co. v. Meyer, 197 U.S. 407, 25 S. Ct. 483, 49 L. Ed. 810; Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 29 S. Ct. 445, 53 L. Ed. 782); or, as stated in Frey & Son, Inc., v. Cudahy Packing Co., supra, "whether a nonresident corporation is doing business specially, so as to subject it to suit at the instance of a particular defendant, may depend in part upon the relation of the things it is doing to the cause of action asserted" (Mutual Life Ins. Co. v. Spratley, supra). Situations very similar to the one in the case at bar have been held not to constitute "doing business" in the district of suit. Southeastern Distributing Co. v. Nordyke & Marmon, 159 Ga. 150, 125 S.E. 171; Holzer v. Dodge Bros., 233 N.Y. 216, 135 N.E. 268; Fawkes v. American Motor Car Sales Co. (C. C.) 176 F. 1010. See, also, Hilton v. N. W. Expanded Metal Co. (D. C.) 16 F.(2d) 821. In Southeastern Distributing Co. v. Nordyke & Marmon Co., supra, the Supreme Court of Georgia had before it a case involving an attempt to subject to the jurisdiction of the courts of Georgia a corporation of Indiana. There was involved a method of operation with a district representative with duties almost identical with the case at bar. After reviewing the facts, the court said: "Applying the above principles, we do not think that the defendant was so doing business in Georgia as to subject it to the processes of the courts of this state. It was a foreign corporation chartered under the laws of the state of Indiana, with its principal office and place of business in the city of Indianapolis. Under its charter it was authorized, among other things, to manufacture and sell automobiles. Under the contract between the defendant and the Marmon-Atlanta Company, the latter being a Georgia corporation, the former sold to the latter its automobiles, to be by it in turn resold to retail purchasers. These automobiles were shipped on closed bills of lading, with drafts attached, with `order notifying' directions to the Marmon-Atlanta Company. The drafts and bills of lading were sent to an Atlanta bank, when the drafts were taken up and the bills of lading surrendered to the Marmon-Atlanta Company, to which the title to the cars passed at that 158 time. The defendant does not sell any of its cars in Georgia, except to distributors and dealers, who buy them under the plan above set forth. The duties and powers of Haskell, the agent of the defendant upon whom service was sought to be perfected in this case, are fully set out in the statement of facts. It will be seen that the defendant has a district representative in territory embracing this state. He does not sell any cars for the defendant. He visits distributors and dealers from time to time within this territory. He assists them in every way possible in selling their cars purchased from the defendant. He demonstrates to prospective buyers from such distributors or dealers their Marmon cars. He instructs such distributors and dealers in the act of salesmanship of Marmon cars. He will sell such cars belonging to distributors or dealers, but turns over the orders therefor to such distributors or dealers. He keeps up with the business done by distributors and dealers, and makes reports thereof to the defendant at its home office. He sees that dealers and distributors render proper service to the users of Marmon cars purchased from them, in order that such users may be satisfied with their cars. He selects the dealers and the distributors, and executes, for the defendant, tentative contracts with them, subject to be countersigned by its executive officer, and approved by the company at its home office. It will be seen that the business done by the defendant through its agent does not consist in selling their cars, but is incident merely to the sale of their cars to the distributors or dealers. The effect of the services of the agent may be, and doubtless is, to expand and swell the business of these distributors and agents, and thus indirectly the business of the defendant. He boosts the sales of dealers and distributors, so that the company can sell to them more of its cars. While this is so, it is a mere incident to the business the defendant is doing. Being such, it does not constitute doing business in this state so as to subject the defendant corporation to process served on such agent in this state, and we are of the opinion that the trial judge did right in sustaining the plea of the defendant to the jurisdiction of the court." As above stated, no general rule has been laid down and each case must depend on its own facts and circumstances. The policy of the law is that a defendant may be sued only in the district in which he is an inhabitant or in which he is "found," which in the case of a corporation means that it shall be fairly clearly shown that it is "doing business" in the district in the meaning which is given to that expression by the decisions. Under section 48 this jurisdictional requirement is expressly stated and the burden is on the complaining party to show the jurisdictional facts. The facts hereinabove stated show, in the opinion of the court, an incidental activity of the corporation, not a substantial part of its ordinary business, and relating rather to the internal affairs of the corporation in its relations with dealers, and having more the character of solicitation, advertising and good will operations. It is the opinion of the court that defendant has not been shown to be subject to service in this district. The most that can be said to support the jurisdiction under the facts in this case is that it is extremely doubtful. In this situation, it is better that the parties be remitted to the district where there is no doubt as to the jurisdiction, before, rather than after, expensive and protracted litigation has been had. American Elec. W. Co. v. Lalance & Grosjean Mfg. Co. (D. C.) 256 F. 34, 37; General Elec. Co. v. Best Elec. Co. (D. C.) 220 F. 347; Philadelphia & Reading R. Co. v. McKibbin, supra. The order, therefore, will be that service of summons be quashed. The court can dismiss the case entirely, but will not do so at the present time, leaving it open to the complainant to obtain service, if possible to do so within a reasonable time. The order quashing the service is a final and appealable order. Rosenberg Co. v. Curtis Brown Co., 260 U.S. 516, 43 S. Ct. 170, 67 L. Ed. 372.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510131/	821 F. Supp. 376 (1993) Carol PINDER, Individually, and in her capacity as surviving Mother of her minor children, deceased; and, as Personal Representative of the Estates of Kim Pinder, LaToya and Troy Brummel, Plaintiff, v. The COMMISSIONERS OF CAMBRIDGE IN the CITY OF CAMBRIDGE; Donald Johnson, PFC, Individually, and in his official capacity, Defendants. Civ. No. N-92-675. United States District Court, D. Maryland. May 10, 1993. 377 378 379 380 Barbara A. Gold, Baltimore, MD, for plaintiff. Paul T. Cuzmanes and Samuel L. Israel of Weinberg and Green, Columbia, MD, for defendants. MEMORANDUM NORTHROP, Senior District Judge. Pending before the Court is Defendants' Motion to Dismiss (Paper No. 5). This motion is opposed (Paper No. 6). After a review of all briefs filed and in consideration of the arguments presented by counsel at hearing, the Court will grant in part and deny in part Defendants' Motion to Dismiss. More specifically, the Court will deny Defendants' motion to dismiss the Constitutional violations alleged in Counts I and II under the equal protection and substantive due process clauses of the Fourteenth Amendment. The Court also will deny Defendants' motion to dismiss the state tort claims alleged in counts III and IV against Officer Johnson. The Court, however, will grant Defendants' motion to dismiss Counts III and IV with respect to the City of Cambridge. I. Introduction Plaintiff Carol Pinder brings suit individually, and in her capacity as Personal Representative of the Estates of her three minor children. The Defendants in this case are Police Officer PFC Donald Johnson ("Johnson") and the Commissioners of Cambridge ("Cambridge"). Defendant Cambridge is responsible for the establishment and maintenance 381 of the Police Department and the Police Department's policies, procedures and practices. Plaintiff brings a four count Complaint. The first two counts allege constitutional violations of equal protection and due process as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. Plaintiff brings both of these counts, I and II, under 42 U.S.C. § 1983 and § 1985. In addition to the two civil rights counts, Plaintiff brings two state law claims seeking damages pursuant to Maryland law for wrongful death and a survival action for the conscious pain and suffering of the Plaintiff's children. The underlying facts in this case are tragic. On March 10, 1989, Plaintiff left work and went home in response to a telephone call informing her that Don Pittman ("Pittman"), a former boyfriend, had broken into Plaintiff's house and was threatening violence. See Complaint, ¶¶ 7 and 9. When Carol Pinder arrived at home, Pittman physically attacked her and threatened to kill both her and her children. The Cambridge Police Department had already been summoned. Officer Johnson, employed by the Cambridge Police Department responded to the call, and arrived at Plaintiffs' home shortly after the Plaintiff. By the time Johnson arrived, Pittman was already restrained by a neighbor, Darnell Taylor. Carol Pinder told Johnson what happened, including how Pittman had broken into her home and that he threatened, attacked, and assaulted Plaintiff. In addition, Pittman had destroyed certain property, in particular, a microwave oven. Pittman had apparently thrown the microwave at the Plaintiff. Officer Johnson saw the broken window panes in the back door which Pittman had broken in order to gain access to Pinder's home. Johnson arrested and handcuffed Pittman. While Pittman was being arrested, he continued to make threats of violence against Plaintiff. Carol Pinder expressed to Officer Johnson her fear and concern for the safety of her children. She reminded Officer Johnson that Pittman was on probation for a previous arson conviction, in which he had broken into Plaintiff's home and attempted to burn it down. Pittman had been convicted of arson for this prior incident and was sentenced to eighteen months in prison, with twelve months' suspended sentence, followed by three years of supervision. Carol Pinder alleges that she specifically asked Johnson whether she should return to work. In response, Plaintiff alleges that Johnson assured her that it was safe for her to return to work because Pittman would be kept in custody. Ms. Pinder returned to work after Johnson left with the perpetrator, Pittman. Johnson brought Pittman before Commissioner George Ames, Jr. ("Ames") and charged him with trespassing and destruction of property having a value of less than three hundred dollars. See Complaint ¶¶ 17 and 19. In his incident report, Johnson noted that he responded to a "domestic." See Complaint ¶ 9. After spending little more than one hour in custody, Pittman was released on his own recognizance. Carol Pinder was at work when Pittman was released. Plaintiff contends that no attempt was made to warn Carol Pinder, nor did Defendants attempt to monitor Pittman after his release in spite of their knowledge of the danger the Pinders faced from Pittman's threats. Upon his release, Pittman took the ten minute walk from the police station to the Pinder home, broke in and set fire to the house. When firemen were able to enter the house, they found the three children in the upstairs rear recreation room. Efforts to resuscitate the children proved futile. All three children died of smoke inhalation from the fire. Pittman was arrested later that night, charged with arson and murder, and held without bond. Subsequently, Pittman pled guilty to three counts of first degree murder and was sentenced to life in prison without parole. II. Legal Analysis A. Standard for Motion to Dismiss The purpose of a motion to dismiss is to test the formal sufficiency of the statement of 382 a claim for relief. See Fed.R.Civ.P. 12(b)(6). It is not a procedure for resolving a contest about the facts or merits of the case. The Court must consider as true all of the properly pleaded allegations contained in the complaint. Augenstein v. McCormick & Co., 581 F. Supp. 452, 456 (D.Md.1984); see also Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1848-49, 23 L. Ed. 2d 404 (1969). A 12(b)(6) motion should be read in conjunction with the rules governing claims for relief. Fed.R.Civ.P. 8(a)(2). The test most often applied to determine the sufficiency of a complaint is set out by the Supreme Court in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). In appraising the sufficiency of the Complaint, we follow, of course, the accepted rule that a Complaint should not be dismissed for failure to state a claim, unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.; see also, Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324 (4th Cir.1989); Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191, 199 (4th Cir.1963). Complaints should not be dismissed merely because Plaintiff's allegations do not support a legal theory on which the Plaintiff intends to proceed. A Court has an obligation to examine the Complaint and determine if the allegations provide for relief under any possible theory. See McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 246, 100 S. Ct. 502, 511, 62 L. Ed. 2d 441 (1980); Bowers v. Hardwick, 478 U.S. 186, 201-02, 106 S. Ct. 2841, 2849-50, 92 L. Ed. 2d 140 (1986) (Blackmun dissenting) (citations omitted). B. Count I: Deprivation of Plaintiff's Right to Equal Protection In Count I, Carol Pinder contends that Defendants violated her right to equal protection under the law. Plaintiff avers that Defendants maintained a custom or policy of "taking domestic violence against women less seriously than other assault cases and treating male offenders in incidents of domestic violence more leniently than offenders in other assault cases ..." Complaint at ¶ 29. Plaintiff contends that this policy or custom "effectively constitutes a gender based administrative classification used to implement the law in a discriminatory fashion." Id. Plaintiff also appears to allege another equal protection argument in Count I. She maintains that Defendants violated her family's rights to equal protection by selectively denying protective services to Carol Pinder and her children. Complaint at ¶ 30. Defendants contend that Plaintiff fails to state a claim upon which relief may be granted because she fails to allege that Defendants' conduct was intentional. Moreover, Defendants aver that Plaintiff fails to allege sufficient specific facts to support her claim that Cambridge had a policy or custom of providing less protection to female victims of domestic violence than to victims of other violent crimes. Defendants maintain that instead, Plaintiff's contentions constitute no more than bald conclusory allegations. It is axiomatic that in any § 1983 action, a court's initial inquiry must focus on (1) whether the conduct complained of was committed by a person acting under the color of state law; and (2) whether this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution. Temkin v. Frederick County Com'rs, 945 F.2d 716, 719 (4th Cir.1991) cert. denied, ___ U.S. ___, 112 S. Ct. 1172, 117 L. Ed. 2d 417 (1992) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912-13, 68 L. Ed. 2d 420 (1981)). Defendants do not contest the existence of first element, that they acted under color of state law. Similarly, Defendants do not contest the presence of the second element of the § 1983 analysis to the extent that Plaintiff identifies a violation of a constitutional right. They do not challenge Plaintiff's claim that a custom or policy of affording less protection to women who are victims of domestic violence as opposed to victims of other violent crimes is policy subject to the restrictions of the equal protection clause. Instead, Defendants' quarrel with Plaintiff's complaint is that she has not alleged intent, nor has she provided facts to support an inference of a policy of discrimination based on gender. The equal protection clause of the Fourteenth Amendment guarantees that "[n]o 383 state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. 14. The focus of an equal protection inquiry begins with an examination of the legislative or administrative classification that treats similarly situated groups differently. The "courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose." McLaughlin v. Florida, 379 U.S. 184, 191, 85 S. Ct. 283, 288, 13 L. Ed. 2d 222 (1964). In this case, Plaintiff contends that Defendants' failure to treat female victims of domestic crime the same as victims of other crimes is a gender classification. Classifications made on the basis of gender are not valid under the equal protection clause unless they are substantially related to an important governmental objective. Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), reh'g denied, 429 U.S. 1124, 97 S. Ct. 1161, 51 L. Ed. 2d 574 (1977). Because they contend that Plaintiff fails to sufficiently allege facts to support a gender classification, Defendants do not attempt to articulate how such a gender classification, if it exists, is substantially related to an important governmental objective. Indeed, it is doubtful that such a justification for providing less protection to female victims of domestic violence than to victims of other violent crimes could be made. See Thurman v. City of Torrington, 595 F. Supp. 1521, 1527-29 (D.Ct.1984) (gender based discriminatory treatment of victims of domestic violence are premised upon "archaic and overbroad" notions, citing Craig, 429 U.S. at 198-99, 97 S.Ct. at 457-58); see also Reed v. Reed, 404 U.S. 71, 77, 92 S. Ct. 251, 254, 30 L. Ed. 2d 225 (1971) (differential treatment of domestic violence in order to promote domestic harmony "may not lawfully be mandated solely on the basis of sex."). It is well recognized that discrimination against women victims of domestic violence as opposed to other crimes of gender is a valid cause of action under the equal protection clause. Brown v. Grabowski, 922 F.2d 1097, 1117 (3d Cir.1990) cert. denied, ___ U.S. ___, 111 S. Ct. 2827, 115 L. Ed. 2d 997 (1991); Hynson v. City of Chester Legal Dept., 864 F.2d 1026, 1031 (3d Cir.1988); Watson v. Kansas City, 857 F.2d 690, 694 (10th Cir.1988); Balistreri v. Pacifica Police Dept., 855 F.2d 1421 (9th Cir.1988); rev'd in part on other grounds, Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir.1990); Thurman, 595 F.Supp. at 1521. Moreover, Defendants do not question that, in the abstract, it is a constitutional violation to allocate police protection based upon the gender of the domestic violence victim, Defendants, however, assert that Plaintiff in this case has failed to adequately allege such a violation both in terms of essential elements and supporting factual allegations. The Court first considers Defendants' claim that Plaintiff has failed to allege that Defendants intentionally or purposefully discriminated against women. A plaintiff in an equal protection action has the burden of demonstrating that defendants acted with discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 563, 50 L. Ed. 2d 450 (1977). It is not necessary to demonstrate that the action challenged was taken solely for discriminatory purposes; it is necessary only to demonstrate that a discriminatory purpose was a motivating factor. Id. at 265, 97 S.Ct. at 563. In the instant case, Carol Pinder alleges intentional discrimination against women by maintaining that Defendants' policy provides less protection to female victims of domestic violence than victims of other violent crimes. See Complaint ¶¶ at 21, 23, and 29. Plaintiff alleges that Johnson acted intentionally when he chose to charge Pittman with minor offenses and did not make any attempt to warn Carol Pinder of Pittman's release. Complaint at ¶ 23. Plaintiff also alleges that these acts are part of a custom or policy of the Cambridge Police Department. Complaint at ¶¶ 21 and 29. Taken together, these allegations more than satisfy Plaintiff's burden of alleging intentional discrimination. See Sherrell By and Through Wooden v. City of Longview, 683 F. Supp. 1108, 1116 (E.D.Tex.1987). Defendants' second ground for dismissal of Count I goes to the sufficiency of what Plaintiff 384 must factually allege in the complaint. They contend that in order to defeat a motion to dismiss, "[p]laintiff must set forth sufficient facts to allow a reasonable jury to infer" that it is the policy or custom of the Cambridge police to discriminate on the basis of gender. Defendants' Memorandum in Support of Motion to Dismiss at page 6. Defendants rely upon Hynson to support this proposition. 864 F.2d at 1026. The standard of review used in Hynson, however, is not helpful to Defendants' argument. The Third Circuit's Hynson standard is for summary judgment, and not as we have here, a motion to dismiss.[1]Id. What a plaintiff must allege in order to prevent dismissal differs from the plaintiff's burden for defeating summary judgment. Compare McLain, 444 U.S. at 246, 100 S.Ct. at 511 (articulating the standard for dismissal motion); with Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986) (defining the standard for a summary judgment motion). In acting under 42 U.S.C. § 1983, as generally, a motion to dismiss pursuant to Rule 12(b)(6) should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts to support her allegations. Revene v. Charles County Commissioners, 882 F.2d 870, 872 (4th Cir.1989). In this case, Plaintiff makes a short and plain statement of the facts alleging a violation of constitutional rights by the Defendants, who are state actors. Cf. Fed.R.Civ.P. 8(a)(2); Parratt, 451 U.S. at 535, 101 S.Ct. at 1912-13 (stating requirements for alleging a § 1983 violation). These facts need describe no more than an incident that places Defendants on notice of a claim entitling Ms. Pinder to relief. Id. As such, when reviewing the sufficiency of a complaint under a dismissal motion, the issue is not, as Defendants suggest, an evaluation of the merits. "Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). Nevertheless, the factual allegations in the Complaint may be insufficient to support Plaintiff's allegations that Defendants' conduct discriminates on the basis of gender. As alleged, Plaintiff's factual claims do not demonstrate how Plaintiff's present injuries arose from a policy of gender discrimination. Cf. Revene, 882 F.2d at 875 (legal conclusions without supporting factual allegations insufficient to demonstrate municipal liability for an unconstitutional policy). First, it is not clear whether Plaintiff has sufficiently alleged an unconstitutional policy. Second, even assuming such a policy exists, it is not clear that it results in a gender-based classification. Each of these deficiencies will be addressed seriatim. The Complaint alleges that Johnson characterized Pittman's actions as being a "domestic" incident in his police report. Complaint at ¶ 19. Second, the Complaint alleges that Johnson's superiors approved of and did not question his handling of this incident. Complaint at ¶ 20. Finally, the Complaint suggests that Commissioner Ames, had full awareness of Pittman's past record of violence and the current threats of violence against Plaintiff and her children, "conspired to be lenient with Pittman."[2] Complaint at ¶¶ 17-19. Under § 1983, municipalities may be held liable for a plaintiff's injuries if she can establish that the injuries were the result of an unconstitutional municipal policy or custom. See City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); 385 City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985); Revene, 882 F.2d at 874-75; Watson, 857 F.2d at 695. The custom or policy need not be formal or written. Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978). Often, a plaintiff supports allegations of an unconstitutional municipal custom or policy by pointing to statistical or other related facts outside of the plaintiff's own case. See Thurman, 595 F.Supp. at 1530; see e.g., Watson, 857 F.2d at 695-6 (plaintiff supported equal protection claim against summary judgment motion by presenting statistical evidence that showed the arrest rate was higher in cases of nondomestic than domestic violence and allegations of police training that encouraged using arrest as a last resort in domestic violence situations). In Thurman, for example, the plaintiff was able to allege a municipal custom or policy of discrimination against victims of domestic violence by pointing to repeated incidents of police misconduct within her own case. Thurman, 595 F.Supp. at 1530-31. Carol Pinder, however, does not make factual allegations of repeated or widespread discriminatory acts occurring outside of her own case. Similarly, Plaintiff cites no statistics from which an inference of discriminatory treatment, and when coupled with Plaintiff's other evidence, might be made. Plaintiff does not allege repeated actions of discriminatory conduct within her own case, as in Thurman. At the hearing, her counsel suggested only that Plaintiff's complaint may be amended to allege the Cambridge police department's failure to charge Pittman with the prior act of arson. Perhaps further discovery may reveal a pattern, but for now Pinder's equal protection claim must rest upon other grounds. Those other grounds are found in Plaintiff's claim that Johnson's superiors approved his course of conduct. "A single incident may serve as the basis of liability when a particular course of action is made by a municipality's authorized decision makers." Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). This allegation coupled with Johnson's listing of the incident as a domestic is enough at this juncture to allege a policy or custom. Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.) cert. denied, 444 U.S. 980, 100 S. Ct. 483, 62 L. Ed. 2d 407 (1979) (single brutal incident may be sufficient to suggest a link between a violation of constitutional rights and a pattern of police misconduct); Thurman, 595 F.Supp. at 1530. The Court now considers whether Plaintiff can support a claim of gender based discrimination. In examining Plaintiff's allegations in their most favorable light, they appear to support only the inference that there was a Cambridge policy or custom of providing victims of domestic violence with less police protection than victims of other violent crimes. This allegation may not be sufficient enough to support a claim that the policy intentionally discriminate also on the basis of gender. But see Thurman, 595 F.Supp. at 1528 n. 1 (noting one study of interspousal abuse where 29 out of every 30 cases the abused victim is female). A policy that discriminates against victims of domestic violence is gender-neutral on its face. Policies that are facially neutral may trigger intermediate scrutiny when the policy has a disproportionate impact on women that results from purposeful or intentional discrimination. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979); Watson, 857 F.2d at 696-97. Here, Plaintiff has failed to present any allegations, beyond mere legal conclusions, that the Defendants' policy has any adverse impact on women at all, much less whether this impact results from discriminatory intent.[3]Cf. Watson, 857 F.2d at 696. 386 Plaintiff's allegations of gender based discrimination are, therefore, probably not sufficient to withstand a motion to dismiss. Revene, 882 F.2d at 874-75.[4] These deficiencies in Plaintiff's factual allegations are not fatal to Carol Pinder's Count I claim under the equal protection clause. Plaintiff's factual allegations are sufficient to make out a claim that Defendants maintain a policy that discriminated against victims of domestic violence. Complaint at ¶ 30. Although domestic violence victims are not a suspect class requiring a strict or intermediate scrutiny, Defendants must still articulate a rational reason related to a legitimate government purpose to justify this policy. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 105 S. Ct. 3249, 3257-58, 87 L. Ed. 2d 313 (1985) (invalidating zoning ordinance that required special use permit for a group home for mentally challenged because the ordinance was not rationally related to a legitimate governmental purpose); Plyler v. Doe, 457 U.S. 202, 220, 102 S. Ct. 2382, 2396, 72 L. Ed. 2d 786 (1982) (invalidating state law that denied free public education to children of undocumented aliens, even though the Court acknowledged that these children were not a suspect class). The failure to provide police protection is, within the confines of § 1983, subject to rational scrutiny under the equal protection clause. Wright v. City of Ozark, 715 F.2d 1513, 1516 (11th Cir.1983); Smith v. Ross, 482 F.2d 33, 36-37 (6th Cir.1973) (law enforcement officer can be liable under § 1983 when he fails to perform a statutorily imposed duty to enforce the laws equally and fairly, and thereby denies equal protection); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); Fisher v. City of Cincinnati, 753 F. Supp. 681, 687 (S.D.Ohio 1990); Sherrell By and Through Wooden v. City of Longview, 683 F. Supp. 1108, 1114-15 (E.D.Tex. 1987); Bartalone v. County of Berrien, 643 F. Supp. 574, 576-77 (W.D.Mich.1986); Thurman, 595 F.Supp. at 1527-30. These decisions recognize that even under the more lenient examination of rational review, police protection cannot be governed by a policy or custom that arbitrarily discriminates against a particular classification of citizens: The Constitution, because it is "a charter of negative liberties," ... does not generally mandate that police protect a citizen from attack by a private individual.... Once a government has undertaken to provide the public with protection and law enforcement, however, it cannot do so in a manner which violates the Constitution, such as by discriminating against certain persons on an irrational basis. Sherrell By and Through Wooden, 683 F.Supp. at 1112 (citations omitted). In the instant case, Defendants provide no rational reason for the alleged discrimination against victims of domestic violence. Nor do Defendants offer any legitimate governmental purpose that might be served by such a policy. The Court notes in passing that other courts have held that a police policy that discriminates against victims of domestic violence is actionable under the equal protection clause. See Watson, 857 F.2d at 694-97; Thurman, 595 F.Supp. at 1527-30. Therefore, this Court denies Defendants' motion to dismiss Count I. Plaintiff has sufficiently alleged facts that support a cause of action under the equal protection clause at this juncture. 387 C. Count II: Deprivation of Plaintiffs' Right to Due Process Count II alleges that Defendants deprived Plaintiff of her substantive due process rights. Plaintiff contends that Johnson's statements and actions placed Pinder and her children in a position of peril, in violation of Defendants' duty not to render them more vulnerable to danger. Moreover, Plaintiff claims that her right to due process was transgressed by Defendants "conspiring and failing to charge Pittman with appropriate serious offenses and, thereby, assuring his release from custody ..." As noted earlier, the initial inquiry in a § 1983 action focuses upon two issues: (1) whether the conduct complained of was committed by a person acting under the color of state law; and (2) whether this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution. Temkin v. Frederick County Com'rs, 945 F.2d at 719. Moreover, this Court is cognizant that the substantive component of the due process clause "bar[s] certain government actions regardless of the fairness of the procedures used to implement them." Weller v. Dept. of Soc. Serv. of Baltimore, 901 F.2d 387, 391 (4th Cir.1990) (citations omitted). Defendants again do not contest that they were acting under the color of state law. They assert, however, that they did not violate Plaintiff's substantive due process rights because they had no duty to protect Pinder and her children from their attacker, Pittman. Put more generally, Defendants contend that neither Johnson's action or statements, nor the actions or statements of any other Defendant, transgressed Plaintiff's constitutional rights. Defendants' argument hinges upon their reading of DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). In DeShaney, Joshua DeShaney, a four year old boy, was severely beaten and permanently brain damaged by his father, with whom he lived. A county agency had been aware that Joshua was being physically abused by his father for over two years and had briefly taken Joshua into its protective custody. Despite being aware that Joshua had been abused by his father on a consistent basis, the State nonetheless failed to remove Joshua from his father's custody. In considering the duty of the state, the DeShaney Court stated: While the state may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that which he would have been had it not acted at all; Id. at 201, 109 S.Ct. at 1006. According to Defendants, DeShaney imposes an affirmative duty to act, or to protect, in only very limited circumstances. Defendants maintain that outside of a custodial context, such as for prisoners, the state has no obligation to protect an individual from acts of private violence. Id. at 198-200, 109 S.Ct. at 1005-06. Defendants focus on certain limited factual similarities between DeShaney and the instant case to support their argument that the DeShaney legal analysis is controlling herein. Because neither Carol Pinder, nor her children, were in custody, Defendants assert that they did not have any duty to protect Plaintiffs from their attacker. According to Defendants, the arson committed by Pittman, and the resulting murder of the three Pinder children was a private act of violence for which the state is not constitutionally culpable. In addition, Defendants assert that neither their awareness of the dangers that Pinder and her children faced, nor the act of taking Pittman into custody, played any part in creating the dangers confronted by or the violence inflicted upon Plaintiffs. Defendants also deny that Officer Johnson's assurances of Pittman's continued custody do not trigger a heighten duty from the state to act notwithstanding the obvious reliance by Plaintiff upon these assurances. DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004. Instead, 388 Defendants maintain that "the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200, 109 S.Ct. at 1006. Defendants contend that the purpose of the due process clause, that DeShaney articulates, supports confining the state's duty to act only in situations within the custodial context. According to the DeShaney Court, the due process clause protects people from the state, but does not ensure that the state protect its citizens from each other. Id. at 195-96, 109 S.Ct. at 1003-04. As such, the due process clause does not require the state to provide its citizens with protective services to secure their right to life, liberty or property: The clause is phrased as a limitation on the state's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the state itself to deprive individuals of life, liberty, or property, without due process of law, but its language cannot fairly be extended to impose an affirmative obligation on the state to insure that those interests do not come to harm through other means. Id. at 195, 109 S.Ct. at 1003. The Court notes that it is true that under DeShaney, "[t]he Constitution is a charter of negative liberties drafted, primarily, to tell the State to leave people alone." Swader v. Com. of Va., 743 F. Supp. 434, 436-37 (E.D.Va.1990) (citing DeShaney for this proposition). The DeShaney Court, however, left two issues unresolved. First, whether, after DeShaney, there are any noncustodial circumstances in which the state's enhancement of the risk of injury to a plaintiff violates the due process clause. Second, assuming that such circumstances exist, how large a role the state must play in the creation or enhancement of the danger before it assumes a corresponding constitutional duty to protect. See Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.1990). These questions must be answered, or at least considered answered, in the case sub judice. In doing so, the Court starts with DeShaney and then moves to a review of pertinent case law in this area. The DeShaney analysis itself provides some support for the proposition that those operating under color of state law may, at times, retain an affirmative duty to protect individuals from private acts of violence in a noncustodial context. See DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. The Court's conclusion that Joshua's rights had not been violated rested on its determination that the County played no part in creating the dangers or increasing the boy's vulnerability to those dangers. Id. The County's limited intervention had not rendered the boy, in the Court's eyes, "more vulnerable" to the beatings of his father. Id. This analysis establishes the possibility that a constitutional duty to protect an individual against private violence may exist in a noncustodial setting.[5]Id.; see Freeman, 911 F.2d at 55. Similarly, post-DeShaney courts in confronting substantive due process claims, have not confined this right to a purely custodial context. See, e.g., K.H. Through Murphy v. Morgan, 914 F.2d 846, 848-49 (7th Cir.1990) (in placing a plaintiff not in custody in a 389 position of danger, "the state would be a doer of harm rather than merely an inept rescuer, just as the Roman state was a doer of harm when it threw Christians to lions"); Freeman, 911 F.2d at 52 (police chief may be liable for damages inflicted by a third party where the refusal to enforce a restraining order against the attacker was due to the police chief's personal friendship with the attacker); Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir.1990) (duty to protect citizen from former policeman who was permitted to retain his gun despite his being placed on the medical roll as mentally unfit for duty); Ross v. United States, 910 F.2d 1422 (7th Cir.1990) (police officer prevented private rescue of a boy who had fallen into a lake); Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989) (duty to protect town clerk from inmates assigned to work outside of prison) cert. denied 494 U.S. 1066, 110 S. Ct. 1784, 108 L. Ed. 2d 785 (1990); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir.1989), cert. denied, 498 U.S. 938, 111 S. Ct. 341, 112 L. Ed. 2d 305 (1990) (duty to protect a passenger left stranded by police in high crime area); Swader v. Virginia, 743 F. Supp. 434, 440-42 (E.D.Va.1990) (duty to protect plaintiff not in custody from prisoner inmates); G-69 v. Degnan, 745 F. Supp. 254 (D.N.J.1990) (duty to protect undercover informant enrolled in government program). These decisions condition liability upon state actions that in themselves create or increase the underlying risk, not upon a plaintiff's custodial circumstances. Id. Other courts in post-DeShaney decisions have reasoned that a state incurs an affirmative duty to act in a noncustodial setting where state officials created or enhanced the peril that a plaintiff was already facing. See, e.g., Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir.1992) ("[w]e are not persuaded, however, that [the state official] increased [the victim's] vulnerability to danger in the sense envisioned by the Court in DeShaney"); Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1116 (8th Cir.1992) (where a defendant police officer had no duty to act because he did not affirmatively place plaintiffs in a position of danger summary judgment granted) cert. denied, ___ U.S. ___, 113 S. Ct. 1265, 122 L. Ed. 2d 661 (1993); D.R. By L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1373-76 (3d Cir.1992) ("Plaintiffs' harm came about solely through the acts of private persons without the level of intermingling of state conduct with private violence that supported liability in Wood, Swader, Cornelius"); Losinski v. County of Trempealeau, 946 F.2d 544, 550 (7th Cir.1991) (state officials not liable when there was no evidence that the state enhanced or created the risk plaintiff faced); Brown v. Grabowski, 922 F.2d 1097 (3d Cir.1990) (summary judgment on substantive due process claim granted where a plaintiff not in custody supplied no evidence that state actors exacerbated the danger)[6]; Bryson v. City of Edmond, 905 F.2d 1386, 1392 (10th Cir.1990) (declining to impose liability upon state for deaths to post office employees shot by fellow worker where responding police did not create the dangerous situation nor act to worsen decedents' plights); Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir.1990) (failure of plaintiff to allege a special relationship required the dismissal of the due process claim). Again, in each of these cases, it was the state official's lack of involvement in plaintiff's peril, and not plaintiff's custodial circumstances, that relieved the state of liability. Id.; cf. Temkin v. Frederick County Commissioners, 945 F.2d 716, 720-23 (4th Cir.1991) (substantive due process rights of a plaintiff may be violated in the noncustodial context of a police vehicle chase where the government official's act "shocks the conscience" of the court); see also Williamson v. City of Virginia Beach, 786 F. Supp. 1238 (E.D.Va.1992) ("... the DeShaney opinion ... does not foreclose the possibility that an affirmative duty under the Due Process Clause might arise in a situation where the state played a role in creating the danger faced by a citizen."). The Court notes that prior to DeShaney, the Fourth Circuit established a conceptual 390 framework for examining whether a state had an affirmative duty under the due process clause to protect an individual from harm in Jensen v. Conrad, 747 F.2d 185, 190-94 (4th Cir.1984) cert. denied, 470 U.S. 1052, 105 S. Ct. 1754, 84 L. Ed. 2d 818 (1985) (Fourth Circuit made explicit that "a right to affirmative protection need not be limited by a determination that there was a `custodial relationship'"). The Jensen Court identified some of the factors that could give rise to a "special relationship" between a state and a private citizen that triggers the affirmative duty to act. Id. at 194, n. 11. The application of these factors did not depend upon plaintiff's being in custody. Id. For example, the first factor examined whether the victim/plaintiff or the perpetrator is, or was, recently in custody. The DeShaney decision notwithstanding, the district courts of this circuit have continued to use the Jensen "special relationship" factors for determining whether liability arises under the due process clause for a state's failure to act. See Williamson, 786 F.Supp. at 1238 (applying the Jensen factors to hold that no special relationship existed between city official defendants and the victim, even though the victim had been in custody before his suicide); Swader, 743 F.Supp. at 434 (applying the Jensen factors to hold state officials liable for their failure to protect a plaintiff who was not in custody, but where the state had created the danger plaintiff faced).[7] None of these courts, in this or other circuits, foist such a broad reading of DeShaney upon the law as do the Defendants. Likewise, this Court finds that while the custodial circumstances of a plaintiff are important, they are not dispositive. Indeed, the Supreme Court recognizes that in addition to being a charter of negative liberties, "the Due Process Clause, like its forbear in the Magna Carta, was intended to secure the individual from the arbitrary exercise of the powers of government." Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986) (citations omitted). A custodial setting may provide a clearer case for attaching constitutional liability to the inaction of government officials. The arbitrary exercise of governmental power is magnified in the custodial setting. In the custodial context, liberty is restricted, and individuals are unwillingly placed in situations in which they may be unable to respond and the state has assumed increased control and authority over them. See Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (involuntarily committed mental patients have a Fourteenth Amendment due process right to their "reasonable safety" from themselves and others); Buffington v. Baltimore County, 913 F.2d 113, 119 (4th Cir.1990) cert. denied, ___ U.S. ___, 111 S. Ct. 1106, 113 L. Ed. 2d 216 (1991) (county officials could be liable when they knew 391 the individual in their custody was suicidal and in need of emergency intervention, but acted with deliberate indifference in failing to prevent individual's suicide). While the custodial context magnifies the government's responsibility to act, as a matter of logic, it does not present an exclusive set of circumstances under which a government may act arbitrarily. Nor, therefore, should the right to due process be arbitrarily limited to protecting only those in custody. The public should have the same right as state prisoners and those in the custody of other public institutions to be free from the arbitrary exercise of governmental authority: If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as it had thrown him into a snake pit. Jensen v. Conrad, 747 F.2d 185, 192 (4th Cir.1984) quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). Arbitrarily confining liability stemming from a government's inaction in custodial circumstances alone would so restrict the reach of the Fourteenth Amendment as to make it a safe haven for official misconduct. The Constitution is not an absolute shield for the failure to do one's duty. See Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S. Ct. 2727, 2738-39, 73 L. Ed. 2d 396 (1982). Indeed, DeShaney did not foreclose the possibility that an affirmative duty might arise in a situation in which the government created or increased the danger a plaintiff faced. 489 U.S. at 201, 109 S.Ct. at 1006; see Williamson, 786 F.Supp. at 1252. Clearly, a mechanical application of substantive due process to custodial settings only would be easier to apply and would limit state liability. Such an interpretation, however, would carry the irony of requiring courts to arbitrarily limit a right in which its very purpose is to protect citizens from arbitrary state action. This mechanical application of the right would necessarily undermine the ethical legitimacy of court decisions. The mechanical application of this right is not necessary to limit unwarranted liability. Clear and reasonable standards exist that do not sacrifice individual rights, nor depend on arbitrary limitations. First, the recognition of a substantive due process right outside the custodial context need not interfere with the discretionary allocation of public resources. The due process clause imposes no obligation for a government to provide citizens with a particular level of services. See Harris v. McRae, 448 U.S. 297, 317-18, 100 S. Ct. 2671, 2688-89, 65 L. Ed. 2d 784 (1980) (no obligation to fund abortions or other medical services). DeShaney also prevents a finding that substantive due process rights have been violated when the withdrawal or reduction of a particular level or type of public protective service leads to injury. Philadelphia Police & Fire Association v. City of Philadelphia, 874 F.2d 156 (3d Cir.1989) ("Just as in DeShaney, the retraction of state intervention permits the harm, but the harm in each case actively is caused by a source other than the state.") These decisions restrict liability for situations better addressed through the political process. Second, applying substantive due process to non-custodial contexts need not leave individual state officials open to unwarranted liability. Clearly, courts should not use the clarity of hindsight to second guess the difficult decisions that state officials confront. As with other § 1983 actions, more than mere negligence of state officials is required to trigger liability. Daniels, 474 U.S. at 328, 106 S.Ct. at 663.[8] 392 Moreover, as with all other § 1983 actions, plaintiff must demonstrate that the government action proximately caused his or her injury. Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh'g denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980) (no liability where plaintiff's injury was too remote a consequence of defendants' action to hold them responsible under § 1983). Without causation, demonstrating how the government's conduct caused the injury, liability cannot attach. "There is no constitutional right to be protected by the state against being murdered by criminals or madmen." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). Third, even if a plaintiff meets the requirements necessary to establish a substantive due process violation, a defendant may still raise a defense of qualified immunity. Unless a plaintiff can demonstrate the violation of a clearly established right, no liability will attach for government inaction. It is with these safeguards in mind that the Court finds that such a substantive due process right exists for a government's failure to act outside of the strictly custodial context. Next, the Court considers whether Plaintiffs, allegations of Defendants' role in increasing the danger to Carol Pinder and her children created a corresponding constitutional duty to provide some protection from Pittman's violent act. Stated another way, were the actions taken by Defendants sufficient to warrant the protections of the due process clause, because Defendants' conduct made the Pinders more vulnerable to Pittman's arson? The DeShaney Court left this issue unresolved. See Freeman, 911 F.2d at 55. The Fourth Circuit has recognized that the state may incur an affirmative duty to act when "custodial or other relationships exist." Fox v. Curtis, 712 F.2d 84, 88 (4th Cir.1984). As already noted, the Fourth Circuit has held that the government also has a duty to act when a special relationship exists. Jensen, 747 F.2d at 194 n. 11. The Jensen Court identified factors to be included in a special relationship analysis: 1) Whether the victim or perpetrator was in legal custody at the time of the incident, or had been in legal custody prior to the incident.... 2) Whether the state has expressly stated its desire to provide affirmative protection to a particular class or specific individuals.... 3) Whether the state knew of claimants' plight. Id. at 194 n. 11. The Jensen Court indicated that the first factor relates to the government's awareness of whether a plaintiff, as opposed to the general public, faces a special danger. Id.; see also Martinez v. California, 444 U.S. 277, 285, 100 S. Ct. 553, 559, 62 L. Ed. 2d 481 reh'g denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980) (Supreme Court declined to impose liability for a state's failure to act in part because the government "was not aware that [the decedent], as distinguished from the public at large, faced any danger"). The second and third factors relate to the government's intent to "single out" a plaintiff for special care. Jensen, 747 F.2d at 194. Plaintiff's circumstances meet the factors identified by Jensen. First, Johnson was summoned to the Pinder home prior to the arson, where he found Pittman being restrained by a neighbor and threatening to do Plaintiff further harm. Johnson arrested Pittman and assured Plaintiff that it was safe for her to return to work. Johnson brought Pittman before Commissioner Ames where Pittman was charged with trespassing and minor destruction of property. Pittman was in physical custody just prior to murdering the three Pinder children by arson. Pittman was then released on his own recognizance, immediately walked the short distance from the police station to Plaintiffs' home, and 393 turned his previous violent threats into a violent act.[9] Second, Defendants expressed their intentions to provide affirmative protection to Plaintiff. According to Plaintiff, Johnson gave Carol Pinder assurances when Pittman was arrested that Pittman would remain in custody. Third, Defendants were aware of the plight that Plaintiff faced. Plaintiff contends that Commissioner Ames and Officer Johnson were aware of Pittman's past and his previous attempt to burn Plaintiff's home down for which Pittman was convicted of arson. According to Plaintiff, Johnson knew Pittman from their high school days together. Indeed, Plaintiffs allege that "Johnson knew Pittman had a dangerous nature and propensity to act aggressively ..." Complaint at paragraph 11. Beyond this general knowledge of Pittman, Carol Pinder reminded Johnson at the time of the arrest of Pittman's previous acts of violence against the Pinders. Ms. Pinder showed Johnson where Pittman had broken into the Plaintiffs' home by breaking the back door window panes. Carol Pinder told Johnson of how Pittman had attacked and threatened her before he was restrained by a neighbor. Finally, Johnson saw how Pittman resisted arrest and continued to make threats against the Pinders stating, "that if he was going to jail, it was going to be for murder." Complaint at ¶ 12. If these allegations are true, Defendants knew that Plaintiff, as opposed to the general public, faced a special danger. Moreover, the facts are sufficient for purposes of Rule 12(b)(6) to find that Plaintiff was singled out for protection by Johnson's words and actions. Jensen, 747 F.2d at 194 n. 11; Swader, 743 F.Supp. at 440-43; but see Williamson, 786 F.Supp at 1283.[10] Though Jensen provides a good analytic starting point for determining whether a special relationship exists, merely establishing the three factors may not be enough to meet the burden imposed by DeShaney.[11] The Jensen factors only establish the government's awareness of the victim's predicament and the expression of its intent to help. 747 F.2d at 194, n. 11. Outside of a custodial setting, neither a police officer's awareness of 394 a victim's plight, nor mere expressions of intent to help a victim are enough to trigger an affirmative government duty to act. See DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005-06. "To serve and protect" may be the motto for law enforcement, but it is not the constitutional standard under which police actions are judged. Subsequent to DeShaney, circuit court opinions expanded upon this analysis. See, e.g., Horton v. Flenory, 889 F.2d 454, 457 (3d Cir.1989) (even though state officials know that a person is in imminent danger of harm from a third party, the Fourteenth Amendment imposes no obligation on the state to prevent that harm); Balistreri v. Pacifica Police Department, 901 F.2d 696, 701 (9th Cir.1990) (the due process clause did not impose on the government an affirmative duty to protect even though the government was aware of plaintiff's plight and took some steps to protect plaintiff). DeShaney requires an analysis of whether a state acted to create the duty such that the corresponding failure to act is arbitrary. The analytical focus herein must be upon what the state did to create or enhance the risk plaintiff faced. The Swader court acknowledged this requirement when it held that plaintiffs had adequately alleged the existence of a special relationship giving rise to an affirmative duty. 743 F.Supp. at 435. In Swader, plaintiffs not only sufficiently alleged a special relationship under Jensen, but plaintiffs also sufficiently alleged state involvement in creating and enhancing the risk that the decedent plaintiff faced. Id. at 441-42 (state created dangers plaintiffs faced because it required plaintiffs live on prison property, ingress and egress to the prison was over roads owned and maintained by the state, and the state was supposed to, but did not, provide proper supervision of all inmates). Similarly, in the instant case, the analytical focus must not stop with Jensen, but begin there. Establishing the presence of the Jensen factors creates a nexus between plaintiffs and the government that may cause a failure to act to become an arbitrary exercise of government authority. This can be established only when it is shown that the government has acted to increase or create the danger that a plaintiff faces. An exact test under DeShaney for what level of government involvement triggers this due process right, however, is not available. The Court, however, may by analogy, cast the DeShaney requirements against the backdrop of common law torts.[12] In doing so, the common law distinction between "misfeasance" and "nonfeasance" captures, to some degree, the DeShaney proposition that liability attaches for only injury created by one's acts. Governmental inaction, or individual nonfeasance, is not actionable when the failure to take steps does not make another worse off. See Prosser and Keeton, Torts at 373 (5th Edition 1984). Neither knowledge of a victim's predicament nor the ability to rescue the victim from danger creates an affirmative obligation to act under common law. See, e.g., Osterlind v. Hill, 263 Mass. 73 (1928) (no duty of one with a rope and a boat to rescue another who is drowning before one's eyes); Sidwell v. McVay, 282 P.2d 756 (Okl.1955) (no duty to prevent neighbor's child from hammering on an explosive charge). In these situations as in DeShaney, the common law recognizes no liability for the nonfeasance. South v. Maryland, 59 U.S. 395 (18 How.) 396, 15 L. Ed. 433 (1855). As in DeShaney, the common law does not impose liability even where one has the ability to prevent harm and the knowledge of the victim's predicament. 489 U.S. at 200, 109 S.Ct. at 1005-06; see also, Jackson v. City of Joliet, 715 F.2d 1200, 1202-03 (7th Cir.1983). While common law tort law recognized no duty to go to the assistance of an individual in peril, there does exist a duty to avoid affirmative acts that cause an individual's situation to worsen. See e.g., Huey v. Barloga, 277 F. Supp. 864, 872 (N.D.Ill.1967); Fagg's Adm'r v. Louisville & N.R. Co., 23 Ky.L.Rptr 383, 111 Ky. 30, 63 S.W. 580 (1901); Restatement (Second) of Torts § 323 (1965). The voluntary assumption by affirmative conduct to come to the aid of another may create a duty. For example, a duty to act may exist where a victim detrimentally relies upon an individual's promise to aid. DeLong v. County of Erie, 89 A.D.2d 376, 455 N.Y.S.2d 887 (1982); but see, Thorne v. Deas, 4 Johns. 84 (N.Y.1809) (no liability for mere gratuitous promise to give aid, even though there is detrimental reliance upon the promised assistance). Here again, the common law duties mirror DeShaney's focus upon governmental actions that create or enhance the danger a victim faces. 489 U.S. at 201, 109 S.Ct. at 1006. Once performance begins, a duty to act is created when that action increases the danger such that the victim is mislead to believe that the danger is removed, or by depriving a potential victim of help from other sources. See, e.g., United States v. Lawter, 219 F.2d 559 (5th Cir.1955) (liability imposed where rescue effort negligently done); Remeikis v. Boss & Phelps, Inc., 419 A.2d 986 (D.C.App. 1980) (liability where plaintiff relied upon broker's assurance that sales contract protected against termite damage). While these common law tort principles do not provide direct authority, they do provide an analogy that may be applied to DeShaney to clarify the amount of governmental intervention necessary to create an affirmative duty for governmental action. The distinctions between "misfeasance" and "nonfeasance," and the liability that may attach, preserves DeShaney's view of the Constitution as a charter of negative liberties. 489 U.S. at 195, 109 S.Ct. at 1003. Liability is not imposed, under the Constitution, to insure that life, liberty or property is preserved. However, when those interests are jeopardized by actions that increase the danger, or make the victim more vulnerable, an affirmative duty arises. In the instant case, Plaintiff contends the risk they faced from Pittman was increased by Defendants in three ways. First, Plaintiff contends that in spite of Johnson's knowledge of the seriousness of Pittman's alleged acts, he was charged with very minor offenses that ensured Pittman's immediate release. Second, Plaintiff contends that the statements Johnson made assuring Carol Pinder that Pittman would remain in custody increased the danger that Plaintiff faced. Third, Plaintiff implies that Johnson's prior relationship with Pittman may have interfered with his decision to charge Pittman with only minor offenses. Turning to the first claim, it is unclear that Officer Johnson's charging Pittman with relatively minor offenses would be sufficient to require an affirmative act from the Defendants to protect the Pinders. As previously discussed, neither knowledge nor Johnson's ability to charge Pittman with a different crime by themselves are sufficient to trigger the duty to act. See Horton, 889 F.2d at 454; in McKee v. City of Rockwall, Texas, 877 F.2d 409 (5th Cir.1989), the failure to charge Pittman with more serious offenses may make Defendants' inaction ultimately more arbitrary, but the decisions in McKee and Horton make clear that undercharging does not meet the heavy burden DeShaney imposes.[13] As to Plaintiff's second claim, Carol Pinder alleges she asked Officer Johnson whether it was safe for her to return to work in view of 396 Pittman's prior violence and his current threats against Plaintiffs. Plaintiff alleges that Johnson told Pinder that she could return to work because Pittman would remain in custody. Using the common law analogy, and looking at these allegations in a light most favorable to Plaintiff, Defendants' assurances appear to have turned their nonliable nonfeasance into liable misfeasance. Defendants increased the risk to Plaintiff by providing assurances that the danger faced had been removed. Ms. Pinder, in reliance upon Johnson's assurances, changed her course of conduct and returned to work. As such, the world that Defendants released Pittman into after his physical custody was materially changed. Ms. Pinder had returned to work. The neighbor who had restrained Pinder's attacker was gone and the Pinder children were helplessly stranded at home vulnerable to Pittman's final act. Defendants' liability is sufficiently alleged when one considers other court decisions in which a substantive due process violation was premised upon the government's failure to act. First, this case meets the Swader standard. As already noted, Swader applied the factors identified by the Jensen Court, and then the Court also examined how the state's conduct created or increased the danger plaintiff faced. See Swader, 743 F.Supp. at 439-43. This Court has already determined that the Pinders' factual circumstances are comparable to the Jensen special relationship factors. In addition to meeting the Jensen factors, the Court finds that Defendants here, also increased the risk that Plaintiff confronted; their conduct made the Pinders more vulnerable to Pittman's violence. See Swader, 743 F.Supp. at 442. For purposes of the instant motion, and as in Swader this Court need not hold that Defendants did not as a matter of law, owe any affirmative duty to Plaintiffs. Id. at 444. Plaintiff's allegations establishing both Jensen factors and the government's enhancement of risk to plaintiffs make out a possible claim that a special relationship existed that may require an affirmative duty. Id. Second, Plaintiff's claims establish a necessary level of government involvement to sufficiently allege a substantive due process violation as measured by the decisions in other circuits. As in the instant case, these courts focus upon actions taken by government entities that increased or made the plaintiffs more vulnerable to danger. In each of these cases, the government's duty to take action to prevent the harm arose because plaintiff's situation was worsened by a prior government act. The Ninth Circuit in Wood held that due process claims could be alleged when a police officer increased a plaintiff's risk of harm by knowingly leaving a female passenger stranded in a high crime area, after arresting the driver and impounding the vehicle. Wood, 879 F.2d at 583. The stranded plaintiff later accepted a ride from an unknown man who raped her. The Ninth Circuit's analysis was done within the context of ruling upon the defendant's alleged qualified immunity. The Wood Court held that a reasonable police officer would have understood that his conduct violated the plaintiff's due process right to be free from unjustified intrusion into her personal security. Id. at 596. The Eleventh Circuit, in Cornelius, reversed summary judgment for defendant officials whose conduct in bringing dangerous prisoners to town under the auspices of a community work program affirmatively created danger that resulted in injury to a plaintiff from the prisoners. Cornelius, 880 F.2d at 348. Plaintiff, a city hall employee who worked around these prison inmates had alleged that she was abducted and terrorized by them. Id. The Seventh Circuit, in White, held that police officers who arrested and removed the uncle of three young children, leaving them stranded on a Chicago expressway could allege a sufficient due process claim. White, 592 F.2d 381. Another Seventh Circuit opinion issued subsequent to DeShaney, affirmed this reasoning when a deputy sheriff acting pursuant to county policy prevented private rescue efforts of a twelve year old boy who fell off a breakwater into Lake Michigan; twenty minutes later the officially authorized divers were allowed to recover the drowned boy's body. Ross, 910 F.2d at 1422. 397 The District Court of New Jersey held that a state's affirmative duty to act could exist where the state induced a plaintiff to work as an undercover informant in exchange for protection and the promise of a new identity if discovered. Degnan, 745 F.Supp. at 264-65. Based upon this agreement, the Degnan court found that a special relationship giving rise to the affirmative duty was created. Id. These decisions, like the instant case, recognize that a state may have a "constitutional duty to protect an individual against private violence ... in a non-custodial setting if the state has taken affirmative action which increases the individual's danger of, or vulnerability to, such violence beyond the level it would have been absent state action." Freeman, 911 F.2d at 55. Even a more specific examination of the type of risk Defendants allegedly imposed upon the Pinders has been found sufficient to allege a substantive due process violation. For example, state imposed limitations on a plaintiff's self help has been held to have violated a plaintiff's substantive due process right. Ross v. United States, 910 F.2d at 1422. Here as in Ross, the alleged government assurances deprived Carol Pinder and particularly her children of self help remedies. When Officer Johnson arrived at the scene, Carol Pinder's attacker was being restrained by a neighbor. Johnson's statements assuring Carol Pinder that Pittman would remain in custody deprived Pinder of the chance to secure additional help from her neighbor. Further, the Pinder children were deprived of their opportunity to have Carol Pinder to either stay at home or remove them from the house. Cf. Id. In the instant case, as in White, the Pinder children were deprived of their protector. White, 592 F.2d at 381. In White, the police arrested the driver who was the children's uncle, leaving the children stranded beside a busy highway. Defendant Johnson's alleged assurances that Carol Pinder could go back to work because Pittman would remain in custody changed her course of conduct and removed her children's protector. Id. Although White presents a more clean-cut case of state action because the uncle was physically removed by police, the Pinder case is no less actionable. As the Degnan Court found, a plaintiff's detrimental reliance upon a government's assurances of action may serve as a basis for asserting a claim under the due process clause. Degnan, 745 F.Supp. at 265; compare with Balistreri, 901 F.2d at 699-700 (no duty for affirmative action found when plaintiff did not allege that the Restraining Order induced her to forego other measures to protect herself).[14] Plaintiffs' final claim is that the personal relationship between Officer Johnson and Pittman may have interfered with or influenced Johnson's charging decision. Such circumstances have been found to deprive a plaintiff of substantive due process right. See, e.g., Freeman, 911 F.2d at 52. The suit in Freeman arose out of the murder of a plaintiff and her daughter by the plaintiff's estranged husband. At the time of the murder, an outstanding Order of Protection was issued against the husband. The Freeman plaintiffs alleged that the Chief of Police had such a close personal relationship with the husband that he had previously prevented other police officers from stopping the conduct of the husband. Id. at 55. In the instant case, if Officer Johnson's decision to charge Pittman with relatively minor offenses was influenced by a personal relationship, this claim may be actionable as well. Therefore, this Court holds that Plaintiffs have sufficiently alleged a claim for a violation of their substantive due process rights. Defendants may have owed a duty to the Pinders because Defendants may have increased 398 Plaintiff's vulnerability to Pittman's acts. Defendants' motion to dismiss Count II will be denied. D. Qualified Immunity Defendants move to dismiss Counts I and II on the basis of Johnson's qualified immunity. The test of qualified immunity for police officers sued under 42 U.S.C. § 1983 is whether in performing discretionary functions, they have engaged in conduct that violates "clearly established constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982); see also Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir.1992). Immunity exists when the right allegedly violated was not at the time of the incident clearly established, or even if it was clearly established, one that a reasonable person in the officer's position could have failed to appreciate. Pritchett, 973 F.2d at 312. Examining a defendant official's qualified immunity requires a review of (1) the identification of the specific right allegedly violated; (2) determining whether or not at the time of the alleged violation, the right was "clearly established;" (3) whether a reasonable person in the officer's position would have known that doing what he did would violate that right. While the third issue may require factual determinations in resolving disputed aspects of a defendant's conduct, the first two issues are pure questions of law. Anderson v. Creighton, 483 U.S. 635, 646, n. 6, 107 S. Ct. 3034, 3042 n. 6, 97 L. Ed. 2d 523 (1987); Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Pritchett, 973 F.2d at 312. Therefore, the Court examines whether Plaintiff properly alleges the violation of constitutional rights that were at the time clearly established on March 10, 1989, the date of the incident. Turning first to Count II, Plaintiff alleges a violation of a right to substantive due process under the Fourteenth Amendment. At its most abstract level, the due process right is intended to protect the individual from the arbitrary exercise of governmental power. Daniels, 474 U.S. at 331, 106 S.Ct. at 664-65. This right has been read to protect individual liberty in a broad range of circumstances. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626-27, 67 L. Ed. 1042 (1923). "Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for unjustified intrusions on personal security." Ingraham v. Wright, 430 U.S. 651, 673, 97 S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1976); see also Wood, 879 F.2d at 583 (citing the proposition in Ingraham as a justification for the application of the substantive due process clause applied in a noncustodial context). The proper focus for determining whether a right is "clearly established" is not upon the right's most general or abstract level, but upon its application to the specific conduct being alleged. Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39; Pritchett, 973 F.2d at 312. The determination of whether a reasonable person in the officer's position would have known that his conduct violated the right must be made on the basis of the information that the officer actually either possessed at the critical time, or that was reasonably available to him. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40; Harlow, 457 U.S. at 815, 102 S.Ct. at 2736-37. Any exigencies of time and circumstance that may reasonably have affected the officer's perceptions must also be considered by the court. Pritchett, 973 F.2d at 307. Under Count II, Defendants argue that Johnson's acts receive qualified immunity under Count II because the right allegedly violated therein does not exist. Defendants contend that in a noncustodial context, even where defendant officials create or enhance the dangers that a plaintiff faces, there is no corresponding duty to act under the due process clause. Defendants' argument relies primarily upon their understanding of DeShaney. 489 U.S. at 189, 109 S.Ct. at 998. This Court rejects Defendants' argument based upon its own analysis of DeShaney and holdings in other circuits which determined that DeShaney did not jeopardize the continued viability of the substantive due process 399 right in a noncustodial setting.[15]Id. See Discussion supra. Section II C. Rejecting Defendants' argument does not however, establish whether the contours of the right are clearly defined. First, such an argument only establishes the right's continued potential existence after DeShaney. Second, a qualified immunity analysis requires a more detailed inquiry. See Collinson v. Gott, 895 F.2d 994, 999-1000 (4th Cir.1990) (although the general contours of the First Amendment were well established, for qualified immunity purposes the inquiry must focus upon the right's particular application to the ad hoc parliamentary rulings of an official presiding at a public meeting). Just as the First Amendment right in Collinson must be analyzed under the particular circumstances confronted by the official, the breadth of application of the substantive due process right in a noncustodial context requires a more particularized inquiry in order to insulate officials from liability for reasonable mistakes of judgment. The protean nature of this right, even when confined to a noncustodial context, is still at a level that is too abstract or general to examine whether an official has violated a "clearly established" right. Compare, Wood, 879 F.2d at 583 (substantive due process right examined in circumstances where police officer arrested the driver but left the car's passenger stranded in high crime area); with Jensen, 747 F.2d at 185 (substantive due process examined in situation where state officials allegedly failed to act on behalf of children who died after brutal beatings by their guardians). At the time of the incident sub judice, controlling authority in this Circuit "clearly established" the existence of a substantive due process right to affirmative government action in a noncustodial context. Jensen, 747 F.2d at 190-94 n. 11; Fox, 712 F.2d at 87-88.[16] Less certain, however, are the precise set of factors that give rise to a special relationship triggering the government's duty to act. See Jensen, 747 F.2d at 194 n. 11 (Fourth Circuit identified some of the factors that comprise a special relationship); see also Freeman, 911 F.2d at 55 (Law is not clearly established as to the extent to which the government must increase the danger of private violence before it assumes a corresponding duty). The lack of precise factors does not establish Defendants' qualified immunity. The fact that an exact right allegedly violated has not earlier been specifically recognized by any court does not prevent a determination that it was nevertheless "clearly established" for qualified immunity proposes.... "Clearly established" in this context includes not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked. Pritchett, 973 F.2d at 314 (citations omitted); see also Collinson, 895 F.2d at 999 (The fact that there were no federal court decisions at the time of the incident on the right's application to the particular circumstances defendant confronted did not establish qualified immunity); McConnell v. Adams, 829 F.2d 1319, 1325 (1987) ("Public officials must consider the possible relevance of legal principles established in analogous factual contexts"). There is no reason in considering 400 whether the right in this case was clearly established, to toss out all applications of this right merely because of its uncertainty in some areas of its application. In examining this right, courts at the time of the incident recognized the "core constitutional principle" arose either upon a state's awareness of the particularized threat of violence, or when the state official increased or enhanced the peril a plaintiff faced. In this case, Plaintiff alleges facts sufficient to trigger the right under either approach. The circumstances that Johnson confronted are analogous to those cases where courts conditioned a special relationship upon a showing that the plaintiff, as distinguished from the public at large, faced a particular threat of danger. See Martinez, 444 U.S. at 285, 100 S.Ct. at 559. (Supreme Court rejected plaintiff decedent's claim, in part, because there was no showing that decedent faced any special danger from the assailant, who was paroled five months before the decedent was attacked). The Martinez holding was followed in subsequent court decisions that addressed facts, where state officials were not liable for injuries caused by parolees or inmates on release programs. In each case, the due process clause did not serve as basis for liability because the victim had no special relationship with the government. State officials had no knowledge that the victim was singled out and faced a particularized threat of danger. See Jones v. Phyfer, 761 F.2d 642, 644-46 (8th Cir.1985); Wright v. City of Ozark, 715 F.2d 1513, 1515 (11th Cir.1983); Humann v. Wilson, 696 F.2d 783, 784 (10th Cir.1983); Fox, 712 F.2d at 88; Holmes v. Wampler, 546 F. Supp. 500, 505-06 (E.D.Va.1982). The Fourth Circuit brought the contours of the special relationship principle into clearer focus. Jensen, 747 F.2d at 190-94. The Jensen Court added that the government must express its intent to single out a plaintiff for care, to the requirement that the government be aware of plaintiff's danger. Id. at 194 n. 11. The Court's application of this special relationship requirement to the circumstances confronted by Officer Johnson reveals that the right was "clearly established" at the time of the incident. As already noted, Plaintiff's situation clearly falls within the Jensen factors. See Discussion supra Section II C. Plaintiff alleges that Johnson had knowledge of the particular peril that the Pinders faced from Pittman's past acts and current threats of violence. Plaintiff further alleges that Johnson gave assurances of his intent to help by telling Plaintiff that she could return to work as Pittman would remain in custody. These allegations may be construed in Plaintiff's favor to support a claim that Johnson should have been aware that his conduct created a special relationship requiring some act, either warning or protecting Carol Pinder and her children from Pittman. In addition to finding liability based upon the Jensen factors, the due process right also arises when the government creates or enhances the danger the plaintiff faces. See e.g., White, 592 F.2d at 384-85; DeShaney v. Winnebago Cty. Dept. of Soc. Services, 812 F.2d 298 (7th Cir.1987) aff'd, 489 U.S. 189 (1989); Estate of Gilmore v. Buckley, 787 F.2d 714 (1st Cir.1986) cert. denied, 479 U.S. 882, 107 S. Ct. 270, 93 L. Ed. 2d 247 (1986); Bowers, 686 F.2d at 616; Thompson v. Lancaster, 652 F. Supp. 703 (M.D.Ga.1987); Williams v. City of Boston, 599 F. Supp. 363 (D.Mass.1984).[17] Beyond the law in other circuits, at the time of the incident, it was clearly established in this circuit that a duty to act could arise where state official enhanced or created a plaintiff's danger. Jensen, 747 F.2d at 190-94. The Fourth Circuit's Jensen analysis is consistent with, and predicated upon, those decisions where an affirmative duty to act is triggered because the state increased a plaintiff's peril. 401 Recognizing that the fourteenth amendment could not be read to establish a general affirmative duty to the public at large, we chose to limit that duty [to situations] where the state had selected an individual from the public at large and place him in a position of danger, the state was enough of an "active tortfeasor" to make it only "just" that the state be charged with an affirmative duty of protection. Jensen, 747 F.2d at 194 (citations omitted). The Court notes that predicating the "special relationship" factors upon authority that looks instead to whether the state action created the risk is not unusual. Most courts viewed liability under the creation of the risk standard as one species of a "special relationship." See Estate of Gilmore, 787 F.2d at 722; Ketcham v. Alameda County, 811 F.2d 1243, 1247 (9th Cir.1987); Dorothy J. v. Little Rock School Dist., 794 F. Supp. 1405, 1419 n. 9 (E.D.Ark.1992). Applying this risk enhancement standard to the circumstances Officer Johnson confronted requires no anticipation of legal principles or clarification of constitutional rights. If it did Johnson would enjoy qualified immunity. McConnell, 829 F.2d at 1325. A sufficiently close factual nexus exists between this precedent and Johnson's acts so as to prevent dismissal based upon qualified immunity. Id. Police conduct done during the course of their job responsibilities that increases or creates a plaintiff's peril has been analyzed under this substantive due process standard. See e.g., Jackson v. City of Joliet, 715 F.2d 1200, 1202-06 (7th Cir.1983); White, 592 F.2d at 384-85; Thompson, 652 F.Supp. at 703; Piechowicz, 685 F.Supp. at 490-92. In White, for example, police conduct increased the peril to an involuntary victim and the resulting injury by private violence was foreseeable. Id. When the police officers failed to act, in the face of danger that they either should have known or knowingly helped create, then that failure became a basis for liability under the due process clause. Id. As stated by the Ninth Circuit in a decision rendered shortly after this incident: A reasonable police officer who acted as [plaintiff] alleges [defendant police officer] acted should have understood that what he was doing violated [plaintiff's] constitutional right to be free from an unjustified intrusion into her personal security in violation of her liberty interest under the fourteenth amendment. Wood, 879 F.2d at 596 (citations omitted). Just as in White, it should have clear to Johnson that his statements and acts increased Plaintiff's vulnerability to Pittman's violence. White, 592 F.2d at 384-85. It is alleged that Johnson assured Plaintiff that Pittman would remain in custody, he did so in spite of his knowledge of: (i) Pittman's violent threats; and (ii) Plaintiff's reliance upon his words, i.e., that fact that she would then return to work, leaving the children exposed. To paraphrase Bowers, Johnson should have been aware that he triggered his duty to act, by removing the snake from the pit, and then tossing it back in once his assurances left the children helpless. 686 F.2d at 618. The facts alleged suggest that Johnson knowingly exposed the Pinders to greater peril and those acts imposed a corresponding duty upon Defendants. As such, the allegations are sufficient to support a claim that the failure of Defendants to act violated the Pinders' constitutional rights. Id. What the instant case does not share with White is that it also meets the factors identified in Jensen. In White, police officers did not signal any intent to provide assistance. In White, neither plaintiff's nor the perpetrator's custody was a factor in finding that a duty was created. In this case, Pinder makes allegations sufficient to meet the standard articulated in both Jensen and White by alleging facts that support the conclusion that he increased Pinders' vulnerability to Pittman's acts. This standard, was "clearly established" at the time of this incident. Jensen, 747 F.2d at 190-94; White, 592 F.2d at 384-85. Moreover, as the White standard contains the same focus on conduct that foreseeably increases plaintiff's peril and is thus the same as that contained in DeShaney, Plaintiff alleges a claim that survives current due 402 process standards. Plaintiff's satisfaction of factors identified by Jensen as well as Deshaney strengthens Plaintiff's claim for there is a clearer connection showing how Johnson's risk creating conduct triggered his duty to act under the due process clause. Defendants offered one final argument to support their claim of qualified immunity. At the hearing, Defendants' counsel stated that DeShaney's limitation of the substantive due process right cripples any attempt at labeling this right as clearly established.[18] This Court rejects this argument as it would effectively transform qualified into absolute immunity. If an official subject to qualified immunity could claim that a right is not "clearly established" because the right contains limitations or has some uncertain areas of application, then an official would always be immune from suit. No right is clear in all applications that is why qualified immunity will be granted if a reasonable official would be uncertain as to whether the right applies to the facts confronting him. Pritchett, 973 F.2d at 312. The tolerance accorded under qualified immunity protects officials from mistakes of judgment "traceable to unsettled law, or faulty information, or contextual exigencies ..." Pritchett, 973 F.2d at 313. Qualified immunity, however, is not intended to be a license for lawless conduct. Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986); Harlow, 457 U.S. at 819, 102 S.Ct. at 2739. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. Harlow, 457 U.S. at 819, 102 S.Ct. at 2739. Moreover, qualified immunity is not intended to protect to the plainly incompetent or those who knowingly violate the law. Id. DeShaney limited the substantive due process right in a noncustodial setting; those situations where the state knows of the peril a victims faces are no longer sufficient to trigger a duty to act. 489 U.S. at 201, 109 S.Ct. at 1006. However, situations where the state plays an active part in creating or enhancing a plaintiff's danger were actionable before DeShaney and are still actionable today. Whether immunity should be accorded depends upon the actual circumstances that the official confronts. As a matter of law and under the facts alleged, this Court determined that qualified immunity does not, at this time, prevent a jury from finding that Defendants violated Pinders' constitutional due process right. Therefore, Plaintiff sufficiently alleges that Defendants violated her "clearly established" due process rights under Count II. Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39; Pritchett, 973 F.2d at 312. Turning to Count I, Plaintiff alleges a violation of the equal protection clause of the Fourteenth Amendment.[19] As with the due process right, the proper focus for determining whether a right is "clearly established" is not at that right's most general or abstract level, but at the level of its application to the specific conduct being alleged. Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39; Pritchett, 973 F.2d at 312. Again, determining whether a reasonable person in the officer's position would have known that 403 his conduct violated the right must be made on the basis of the information that the officer actually either possessed at the critical time, or that was reasonably available to him. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40; Harlow, 457 U.S. at 815, 102 S.Ct. at 2736-37. In this case, Plaintiff alleges that Johnson discriminated against her because she was a victim of domestic violence. It has long been established that police cannot discriminate against a group of persons on an irrational basis. Wright, 715 F.2d at 1516; Smith, 482 F.2d at 36-37; Byrd, 466 F.2d at 11; Fisher, 753 F.Supp. at 687; Sherrell, 683 F.Supp. at 1114-15; Bartalone, 643 F.Supp. at 576-77; Thurman, 595 F.Supp. at 1527-30. This principle has been specifically applied to discriminatory treatment of domestic violence victims, holding that such a policy is unconstitutional. See Watson, 857 F.2d at 694-97; Thurman, 595 F.Supp. at 1527-30. Assuming Plaintiff's allegations are true, Johnson violated a "clearly established" right by discriminating in the type of police protection he rendered because Carol Pinder was a victim of domestic violence. At the time of the arrest, Plaintiff expressed her concerns about Pittman's past acts and current threats of violence. Johnson was aware of Pinders' danger and his alleged conduct would violate Plaintiff's constitutional rights under these circumstances. Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39; Pritchett, 973 F.2d at 312. Therefore, Plaintiff sufficiently alleges that Defendants violated her "clearly established" due process rights under Count I. Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39; Pritchett, 973 F.2d at 312. E. Defendants Maintain that Plaintiff's State Tort Claims are Barred by Defendants' Immunity Under Maryland Law Counts III and IV of Plaintiff's Complaint allege tort claims against Defendants pursuant to Maryland law. Count III alleges a claim for wrongful death of the three Pinder children. Count IV alleges a survival action on behalf of the estates of each of child. (1) Defendants Maintain that Cambridge is Immune from Liability for Both of Plaintiff's Claims Defendants maintain that a municipality is immune from actions pursuant to its governmental functions. Katz v. Washington Suburban Sanitary Commission, 284 Md. 503, 508, 397 A.2d 1027 (1979); see also Khawaja v. City of Rockville, 89 Md.App. 314, 598 A.2d 489 (1992) (Local Government Tort Claims Act does not create liability on part of local government as party to suit). The guidelines for determining when the actions of a municipality are governmental in nature are set forth in Mayor and City Council of Baltimore v. State ex Rel. Buleford, 173 Md. 267, 276, 195 A. 571 (1937). Defendants maintain that the operation of the police force is a governmental function, and as such, Cambridge is immune from suit. Quecedo v. Montgomery County, 264 Md. 590, 287 A.2d 257 (1972); Cord Claiborne v. Cahalen, 636 F. Supp. 1271, 1279-80 (D.Md. 1986). Plaintiff does not contest this argument as to Cambridge's liability. Plaintiff makes some conclusory statements but provides no law that Defendants were acting in a ministerial or discretionary capacity and not as part of its governmental function. Defendants are correct. The Court grants Defendants' motion dismissing Defendant City of Cambridge as to Counts III and IV on this basis. (2) Defendants Claim that Counts III and IV Should Be Dismissed As To Johnson Defendants maintain that Plaintiff fails to state a claim against Johnson as an official of the City of Cambridge. Defendants maintain that Johnson is immune from liability for his actions alleged in Counts III and IV of the Complaint. See Md.Code Ann. Art. 23A, § 1B; Md.Cts. & Jud.Proc.Code Ann. § 5-321. An official in a municipal corporation is immune from liability for tortious actions if that individual can show: (1) that he is an official of the municipal corporation; (2) that he acted in a discretionary capacity; (3) that he acted within the scope 404 of his authority; and (4) that the actions were not malicious. Elliott v. Kupferman, 58 Md.App. 510, 526, 473 A.2d 960 (1984). The only issue, according to Defendants, is whether or not Johnson's actions were malicious. Malice ... consists of the intentionally doing of a wrongful act without legal justification or excuse. Elliott, 58 Md.App. at 526, 473 A.2d 960. Defendants maintain that as a matter of law, Johnson did not act with malice. Defendants' conclusion that Johnson did not act with malice rests on an evaluation of the merits and a weighing of the facts which is not proper at this juncture. Augenstein v. McCormick & Co., 581 F. Supp. 452, 456 (D.Md.1984); see also Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1848-49, 23 L. Ed. 2d 404 (1969). Therefore, the Court denies the motion to dismiss Counts III and IV with respect to Johnson. III. Conclusion The Court denies Defendants' motion to dismiss as to Counts I and II. The Court denies Defendants' motion to dismiss at to the state tort claims alleged in counts III and IV against Officer Johnson. Finally, the Court grants Defendants' motion to dismiss with respect to the City of Cambridge in Counts III and IV. A separate Order shall issue. NOTES [1] Defendants are correct, however, in their reliance on Hynson's articulation of what a plaintiff must ultimately prove in order to show that a facially neutral policy is in reality an improper gender classification. 864 F.2d at 1031. The Hynson court identified three factors: (1) that it is the policy or custom of the police to provide less protection to victims of domestic violence than to other victims of violence; (2) that discrimination against women was a motivating factor behind the administration of the policy; and (3) that the plaintiff was injured by the policy or custom. Id. [2] It is unclear from the Complaint whether in her allegations that Johnson's superiors approved of his acts, Plaintiff refers to Commissioner Ames, or to others with policy-making authority within the police department. [3] Adverse impact alone may not demonstrate intentional discrimination. Compare Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064, 1073, 30 L. Ed. 220 (1886) (Court invalidated law "applied and administered by public authority with an evil eye and an unequal hand ..." where all Chinese applicants for licenses were denied, while all but one of the non-Chinese petitioners were granted licenses) with Feeney, 442 U.S. at 270-79, 99 S.Ct. at 2291-96 (in spite of the adverse impact on women of a government hiring preference for veterans, the Court rejected plaintiff's gender based claim because she could not demonstrate that the facially neutral law was adopted to purposely discriminate against women). The Feeney Court did note that a classification presented in neutral terms may be gender based where the "impact of [the classification] could not be plausibly explained on a gender-neutral ground." 442 U.S. at 275, 99 S.Ct. at 2294. In Feeney, although the veterans' preference operated to the overwhelming benefit of men, the disadvantaged class of nonveterans was not substantially female. Id. at 281, 99 S.Ct. at 2297; but see McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (statistical evidence alone may not be enough to demonstrate discriminatory intent); see also Watson, 857 F.2d at 695-96. [4] Additional discovery may reveal disparate treatment that when examined with other evidence may reveal a policy that discriminates on the basis of gender. [5] A close reading of DeShaney reveals an ambivalence over whether a substantive due process right based upon a failure to act can exist outside of a strictly custodial context. The ambivalence is revealed in the divergent approaches taken by the Supreme Court takes. At one point the Supreme Court seems to make "involuntary confinement" or at least a situation "analogous to incarceration or institutionalization" a requirement for finding a substantive due process right to protection. DeShaney, 489 U.S. at 197-200, 109 S.Ct. at 1004-06. The DeShaney Court, however, also centers its analysis upon whether the victim was placed in a "worse position than that in which he would have been had [the government official] not acted at all." Id. at 201, 109 S.Ct. at 1006. As is explained below, this Court's holding that a right to substantive due process can exist outside of a custodial context is based upon both law and logic. First, other circuits reading DeShaney have not restricted the right to only custodial situations. Second, district courts in this circuit, when interpreting Fourth Circuit precedent after DeShaney, have not confined the substantive due process right to purely custodial settings. Third, as a matter of logic, nothing suggests that the right to be free from the arbitrary exercise of governmental authority should be restricted to custodial settings. [6] In Brown the Third Circuit stated that if the plaintiff's attacker had been in custody prior to the attack, as Pinder's attacker was in the instant case, it might have triggered the government's constitutional duty to assist plaintiff in this non-custodial setting. Id. at 1116. [7] The Fourth Circuit has not, it appears, explicitly limited the viability of the Jensen factors in a post-DeShaney decision. Some tentative conclusions, however, may be reached from related cases such as Bernier. In Temkin, the Fourth Circuit cited with approval the Bernier's court's use of a "shock the conscience" standard of care in police car chase situations. In adopting this standard, the Fourth Circuit quoted Bernier which stated that a failure to act in a noncustodial situation could be actionable if the conduct was "disproportionate to the need presented and so deliberate and unjustified a use of [authority] as to transcend the bounds of ordinary tort law and establish a deprivation of constitutional rights." 945 F.2d at 721 (quoting Bernier, citations omitted). In Piechowicz the Fourth Circuit left unresolved the question of the continuing viability of the Jensen factors that establish a special relationship. Piechowicz v. United States, 885 F.2d 1207, 1214-15, n. 12 (4th Cir.1989); see also Swader, 743 F.Supp. at 442-43 (In discussing Piechowicz the Virginia District Court concluded, "[i]t is the opinion of this Court that the Fourth Circuit's decisions subsequent to the DeShaney opinion signal no retreat from the `special relationship' analysis developed in Fox and Jensen"); but see also Williamson, 786 F.Supp. at 1255. The Piechowicz Court did, in fact, seem to uphold the special relationship analysis stating, "[t]he second rubric inquires whether ... there was any special relationship between the United States and the murder victims that could have `[given] rise to a right, vindicable under § 1983, to affirmative protection by the [United States].'" Id. at 1214 (citations omitted). The Court concluded that no special relationship existed between the plaintiffs and government defendants. Id. at 1214. Moreover, because of the inapplicability of the special relationship doctrine, the court did not appear to use it at all. Id. at 1215 n. 12. [8] The parties do not raise, and the Court does not address at this time, what the appropriate standard of care must be met in order to establish a substantive due process violation. It is noted that in Temkin, the Fourth Circuit adopted a "shocks the conscience" standard for police misconduct in vehicle chases. Temkin, 945 F.2d at 723. The Temkin Court, however, seemed to confine the "shock the conscience" standard to the particular facts that Court confronted. Id. Nonetheless, some authority exists that suggests that this might be the appropriate standard of care even outside "police chase" situations. See e.g. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990); Smith v. Bernier, 701 F. Supp. 1171 (D.Md.1988). The fact that a "special relationship" may have existed between Plaintiff and Defendants, however, may alter this standard of care. See Wood v. Ostrander, 879 F.2d at 583; see also Temkin, 945 F.2d at 722-23 (Court lists standards of care adopted by other circuits and in other situations). Moreover, in the context of the instant motion to dismiss, and drawing all inferences in Plaintiffs' favor, Plaintiffs may well be able to demonstrate that Defendants conduct "shocked the conscience" of the Court or indeed was intentional. [9] It may be significant that during the time of this attack, Pittman quite possibly remained in custody for technical purposes. See Jones v. Cunningham, 371 U.S. 236, 240, 83 S. Ct. 373, 375-76, 9 L. Ed. 2d 285 (1963) (for purposes of applying habeas corpus custody construed as "restraints on a man's liberty, restraints not shared by the public generally"). Pittman was at least on probation when he attacked Carol Pinder and later murdered the children. See Tinder v. Paula, 725 F.2d 801 (1st Cir.1984). Plaintiff does not argue that in her opposition that Pittman was still in custody. An examination of the Complaint, however, reveals that less than ten months before the incident in this case Pittman had set fire to the Pinder home and was convicted of arson. Complaint at ¶ 8. Pittman was sentenced to eighteen months in prison, with twelve months suspended, to be followed by supervised probation for three years. Id. As such, Pittman may have been in custody at the exact time of his murder of the children. It should be noted that custody of the attacker is but one of the Jensen factors. It is doubtful that custody alone could ever trigger a special relationship, since under Jensen there must also be some indication that the state knew that a particular individual was in danger and had given assurances to that individual. Moreover, under DeShaney, there must be some showing that state acts increased or enhanced the danger. 489 U.S. at 200-01, 109 S.Ct. at 1005-06. The fact that Pittman was in custody at the time of the incident simply draws a closer nexus between the Defendants and their ability to influence the events through their control of Pittman. [10] The Williamson Court found Swader and Jensen's analysis completely distinguishable from the situation it confronted. Id. at 1254. The Williamson plaintiff had not succumbed to the recognized risk to informants, had volunteered for the danger facing an informant, and although in custody just prior to taking his life, was not cut off from all means of help. Id. at 1253. In the instant case, the Pinders did not volunteer for the risks they faced nor did they volunteer for the Defendants' enhancement of the risk to them. Moreover, especially with respect to the Pinder children, there is no showing that they had access to any means of help. Cf. Id. at 1253. [11] Indeed, the Jensen Court noted that the factors it identified did not comprise a comprehensive definition of a special relationship. 747 F.2d at 194, n. 11. Instead, the three factors constituted "some of the factors that should be included in a `special relationship.'" Id. If a plaintiff were in custody, these Jensen factors might very well be all that is necessary to establish a special relationship, and therefore, an affirmative duty to act. [12] The Court's examination of § 1983 liability in the context of general tort liability is not an anomaly. See Monroe v. Pape, 365 U.S. 167, 187, 81 S. Ct. 473, 473, 484, 5 L. Ed. 2d 492 (1961) (§ 1983 "liability should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions"). Even the term "special relationship" has its origin in tort law. In stating this, the Court emphasizes that this reference to tort liability is only for purposes of analogy. Subsequent decisions have cautioned against making § 1983 liability under the Fourteenth Amendment "a font of tort law to be superimposed upon whatever systems may already be administered by the State." Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976); see also Daniels v. Williams, 474 U.S. 327, 332, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986) (the Constitution "does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society."). [13] While not raised by Defendants, Plaintiff has not sufficiently shown the presence of a causal link between the alleged undercharging and the injury; Plaintiff has not established how charging Pittman with more serious offenses would have prevented his release. See Martinez, 444 U.S. at 277, 100 S.Ct. at 553 (no liability where causation between the alleged constitutional violation and the injury not established). [14] In Cornelius, the Ninth Circuit held that a plaintiff's substantive due process rights were violated in a noncustodial setting, in large part because defendants had custody over her attackers. Cornelius, 880 F.2d at 348; see also Brown, 922 F.2d at 1116 (Third Circuit held that if victim's attacker had been in custody that might have triggered the state defendant's constitutional duty to act). In the instant case, Pittman, although not in physical custody when he when he attacked Carol Pinder and later murdered the children, was at least on probation. See Jones, 371 U.S. at 240, 83 S.Ct. at 375-76; Tinder, 725 F.2d at 801 (probation satisfies "custody" for purposes of habeas corpus). [15] See Freeman v. Ferguson, 911 F.2d at 52 (8th Cir.1990); Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir.1990); Ross v. United States, 910 F.2d 1422 (7th Cir.1990); Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989) Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir.1989) cert. denied, 498 U.S. 938, 111 S. Ct. 341, 112 L. Ed. 2d 305 (1990); Gregory v. City of Rogers, Ark., 921 F.2d 750 (8th Cir.1990); Swader v. Va., 743 F. Supp. 434, 440-42 (E.D.Va.1990); G-69 v. Degnan, 745 F. Supp. 254 (D.N.J.1990). This Court notes that even where post-DeShaney courts found no duty to act, the custodial circumstances of the plaintiff were not dispositive. See e.g., Brown v. Grabowski, 922 F.2d 1097 (3rd Cir.1990); Salas v. Carpenter, 980 F.2d 299 (5th Cir.1992). As such, courts in a majority of circuits have not read DeShaney as foreclosing the right's existence in a noncustodial setting. [16] Subsequent court opinions have amplified the contours of this right. See e.g., Piechowicz v. U.S., 685 F. Supp. 486 (D.Md.1988) aff'd on other grounds 885 F.2d 1207 (4th Cir.1989); Turner v. City of North Carolina, 675 F. Supp. 314, 319 (D.S.C.1987). Even though these decisions denied relief, based in part on defendants' qualified immunity, the decisions identified the right and applied Jensen. Id. [17] Examining the law in other circuits to determine whether a constitutional right as applied to the circumstances an officer confront is "clearly established" is not unusual. See e.g., Slattery v. Rizzo, 939 F.2d 213, 215 (4th Cir.1991) (court looks to other circuits to determine whether excessive use of forces claims are entitled to a qualified immunity defense); McConnell v. Adams, 829 F.2d 1319, 1325 (4th Cir.1987) (Fourth Circuit examines the law in other circuits to find that qualified immunity applied in a defendant's circumstances). [18] Defendants' counsel argued that since DeShaney was decided three weeks before the incident occurred, the Defendants were uncertain about the state of the law. Despite counsel's argument, it is doubtful that the Supreme Court decision had any actual affect on Defendants' conduct. See Turner v. City of North Carolina, 675 F. Supp. 314, 319 (D.S.C.1987) (the court found that defendants had insufficient notice of the substantive due process right's existence, as only thirty-four days elapsed between the incident and the Jensen decision establishing special relationship factors for determining when the government may incur a duty to act). [19] Defendants' qualified immunity argument on Count I only appears to apply to Officer Johnson. Qualified immunity does not extend to municipalities. See Owen v. City of Independence, 445 U.S. 622, 657, 100 S. Ct. 1398, 1418, 63 L. Ed. 2d 673 (1980) ("municipalities have no immunity from damages liability flowing from their constitutional violations.") As such, under the facts alleged the City of Cambridge may be liable for its policy or custom of discriminating against victims of domestic violence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510192/	588 S.W.2d 812 (1979) Chester Dale EASTIN, Appellant, v. Sherry Dean EASTIN, Appellee. No. 16177. Court of Civil Appeals of Texas, San Antonio. July 30, 1979. Rehearing Denied September 25, 1979. Frank Y. Hill, Jr., Boerne, for appellant. Van G. Hilley, Goodstein & Semaan, San Antonio, for appellee. OPINION CADENA, Chief Justice. This is a divorce action in which appellant, Chester Dale Eastin, seeks reversal of the judgment of the trial court dissolving the marriage between appellant and appellee, Sherry Dean Eastin, and disposing of matters relating to custody of the children of the parties, support of the children, division of the community assets and liability of appellant for attorney's fees. The provisions of the decree concerning custody, support, division of property and attorney's fees are based on a written agreement signed by the parties prior to the hearing. Appellant's contention that the judgment must be reversed because the moving party, appellee, did not prove the existence of the necessary residence requirements must be overruled. What we have before us is obviously a partial statement of facts, and the record reflects that the trial court heard testimony in chambers during a hearing at which no court reporter was present. We must presume, therefore, that the evidence which was heard by the trial court but not brought forward to this Court was sufficient to support the decree granting the divorce. 813 Appellant also complain that he had made known to the court that he repudiated the agreement relating to custody, support, division of assets and liability for attorney's fees before the trial court rendered its judgment on those matters. The cause was set for trial on June 28, 1978. Prior to that date the parties had engaged in negotiations for the purpose of reaching an agreement as to the matters in dispute other than the question of divorce. On June 28, 1978, the parties finally reached agreement on all matters. The agreement was embodied in a handwritten instrument, with each attorney writing a portion of the instrument. The instrument bore the docket number of the case, the style of the case, and was captioned, "Decree and Agreement." However, the instrument is not in the form of a judgment or decree, does not purport to dispose of the question of the marriage, and is clearly nothing more than a recital of the terms of the agreement, except for reciting, "All relief not expressly granted is specifically denied. Costs ½ to each party." After the parties signed the instrument, they announced to the court that they had reached an agreement and it appears that evidence concerning the suit for divorce was then heard in chambers. Apparently, the trial court announced that the divorce would be granted. The judge then signed the handwritten instrument which had been prepared by the parties. Above the court's signature there appears the statement, "Signed this June 28, 1978 after confirmed." On July 12, 1978, counsel for appellee mailed to appellant's attorney the "necessary documents" required to carry out the agreement of the parties. On July 31, 1978, appellant's attorney told counsel for appellee that appellant was "having problems" raising the $68,000.00 which, according to the agreement, appellee was to receive in cash. On August 4, 1978, appellee filed a "motion for entry of decree of divorce" to which was attached the divorce decree which appellee desired to be signed. The trial court set the motion for hearing on August 14, 1978, on which date, prior to the time the hearing began, appellant filed his answer alleging that the decree suggested by appellee did not accurately "recite the proceedings had on" June 28, 1978, and repudiating the agreement. After the hearing, the trial court granted appellee's motion and signed the decree which had been tendered by appellee. It cannot be seriously contended that the signing of the written agreement by the court on June 28 constituted the rendition of a judgment. If such action on the part of the trial court be considered a judgment, the result would be that the divorce was denied, since the instrument recites that all relief not "expressly granted" is "specifically denied" and the instrument does not purport to grant a divorce, either expressly or by implication. The facts in this case are very similar to those involved in Carter v. Carter, 535 S.W.2d 215 (Tex.Civ.App.Tyler 1976, writ ref'd n. r. e.). In that case the Court, relying on Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951), said: The law seems to be clear that a consent judgment cannot be rendered by a trial court when consent of one of the parties is lacking, even though consent may have theretofore been given by such dissenting party. The rule is that consent must exist at the very moment the trial court undertakes to make the agreement the judgment of the court. 535 S.W.2d at 217. Appellee contends that judgment in this case was "rendered" on June 28, 1978, prior to the time that appellant made known his repudiation of the agreement, and that after the trial court had so made "the agreement the judgment of the court" appellant could not withdraw his consent. There is nothing in the transcript which suggests that the trial court had announced its decision concerning custody, support, property division and attorney's fees prior to the hearing held in August. Appellee lays great stress on the fact that her motion was 814 not a motion for judgment but was, instead, a motion for "entry of judgment." Strictly speaking, there is a distinction between the rendition of judgment and the entry of judgment. A judgment is rendered when the court pronounces its decision and conclusions upon the matter submitted to it for adjudication. The entry of the judgment is the ministerial act which furnishes enduring evidence of the judicial act of rendition. 4 R. McDonald, Texas Civil Practice § 17.05.1 (rev. 1971). A judgment is rendered when "`the decision is officially announced either orally in open court or by memorandum filed with the clerk.'" Knox v. Long, 152 Tex. 291, 296, 257 S.W.2d 289, 292 (1953). Normally, the decision is noted on the docket and the court then signs a formal document which recites the judgment. See Rule 306a, Tex. R.Civ.P. Finally, the clerk of the court "enters" the judgment upon the minutes of the court by copying it in such minutes, thereby giving the judgment the certainty required to permit it review upon appeal, its enforcement by process, and its proof in other courts. See generally 4 R. McDonald, supra, §§ 17.05.2-17.05.5. Despite these distinctions, the legal profession displays a tendency to use the terms "render" and "enter" interchangeably. In this case there is no indication in the record that the trial court had, prior to the hearing on August 14, 1978, announced its conclusions and decision on the questions of custody, support, division of property, and attorney's fees. Even if the testimony presented by appellee's counsel at the hearing on her motion on August 14 can be considered as evidence of the rendition of judgment on June 28, such testimony concerns only the court's action with respect to the dissolution of the marriage. The "decree" signed by the trial court on August 14 contains no suggestion that the judgment which it evidences was "rendered" at any prior time, nor are there any findings by the trial court indicating a rendition on June 28. We conclude that the trial court erred in rendering judgment at a time when it knew that the agreement on which the judgment was based lacked, at the time of rendition, the consent of appellant. That portion of the judgment granting a divorce is affirmed. The portion of the judgment awarding custody of the children to appellee, ordering appellant to pay child support, dividing the property and awarding attorney's fees is severed from the portion granting the divorce and is reversed and remanded to the trial court for determination of such issues.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510207/	821 F. Supp. 404 (1993) Don J. HELSABECK v. UNITED STATES of America. No. 92-128-CIV-4-BO. United States District Court, E.D. North Carolina, New Bern Division. May 14, 1993. David P. Voerman, New Bern, NC, for plaintiff. Charles E. Hamilton, III, Asst. U.S. Atty., Raleigh, NC, for defendant. ORDER TERRENCE WILLIAM BOYLE, District Judge. FACTS AND PROCEDURAL BACKGROUND In May of 1990 plaintiff was fired from his position as a civilian food service director at 405 Cherry Point Marine Air Station. The stated reasons for his termination were that Helsabeck had taken unauthorized discounts on food he purchased for his own use, and that he failed to pay his employees properly for overtime. In this action, he contends that his Marine Corps employers did not follow proper procedures for terminating him, and that they thereby violated both the applicable Navy regulations and the fifth amendment's due process clause. He is requesting reinstatement to his former position, expungement of his personnel records, back pay and restitution for lost benefits. In his original complaint, plaintiff claimed that the court has subject matter jurisdiction under 28 U.S.C. § 1331. Defendant then filed a motion to dismiss for lack of subject matter jurisdiction, arguing that (1) the court lacks subject matter jurisdiction over the plaintiff's claim for money damages because there was no waiver of sovereign immunity, and (2) the court lacks jurisdiction over the claims for equitable relief because the Civil Service Reform Act specifically excludes non-appropriated fund instrumentalities (or NAFIs) such as the food service at Cherry Point. In response to this motion, plaintiff filed a motion for leave to amend his complaint. The amended complaint relies upon 5 U.S.C. § 702, a provision of the Administrative Procedure Act, as a basis for jurisdiction along with 28 U.S.C. § 1331. It is plaintiff's position that the APA provides the necessary waiver of sovereign immunity to place this case within the court's jurisdiction, and that it provides a basis independent of the Civil Service Reform Act for considering claims of wrongful discharge by NAFI personnel. DISCUSSION "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. Once a responsive pleading is filed, "a party may amend the party's pleading only by leave of court or by written consent of an adverse party; and leave shall be freely given when justice so requires." Rule 15(a), Fed. R.Civ.P. The Supreme Court has interpreted Rule 15(a) to require that leave to amend be granted absent a showing of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies or that the amendment is futile or unnecessary. Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). With these standards in mind the court turns to a consideration of the motion to amend in this case. Defendant contends that dismissal for lack of subject matter jurisdiction is proper because plaintiff has not shown any waiver of the sovereign immunity of the United States. "It is now well settled ... that the United States may not be sued without its consent. The absence of consent is a fundamental, jurisdictional defect that may be asserted at any time, either by the parties or by the court on its own motion." Wright, Miller and Cooper, Federal Practice and Procedure § 3654. Plaintiff seeks to cure that deficiency in his complaint by amending it to allege that 5 U.S.C. § 702 provides the necessary waiver of sovereign immunity to permit him to bring his claims under 28 U.S.C. § 1331. While plaintiff is correct that the Section 702 waives the United States' immunity from suit, the waiver is limited to "relief other than money damages", 5 U.S.C. § 702, and therefore does not give the court jurisdiction over plaintiff's monetary claims. Since plaintiff's proposed amended complaint fails to show any congressional consent to his damages claims, it would be futile to allow an amendment that would not cure the jurisdictional defect. Therefore plaintiff's motion to amend will be denied with respect to his damages claims. To the extent that Helsabeck seeks to amend his claims for "relief other than money damages," however, Section 702 does provide the necessary consent to suit to permit this action to be brought. An amended complaint which raised Section 702 would clear the hurdle of sovereign immunity, but defendant has also raised an additional argument in favor of dismissing the nonmonetary claims. Congress specifically excluded NAFI employees from coverage under the Civil Service Reform Act (CSRA) 5 U.S.C. § 2105. Based upon this statute and the 406 Supreme Court's decision in United States v. Fausto, 484 U.S. 439, 108 S. Ct. 668, 98 L. Ed. 2d 830 (1988), defendant contends that judicial review of NAFI personnel decisions is not permitted. The court cannot conclude that excluding NAFI employees from the CSRA bars all judicial review for those employees; it simply puts them outside the umbrella of CSRA protections. The Fausto decision does not change this result, because the plaintiff in that case was an "employee" under the CSRA, but was specifically excluded from the judicial review provisions of the Act. The Supreme Court held that the purpose of the CSRA was to provide "an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of various categories of federal employees with the needs of sound and efficient administration," Fausto, 484 U.S. at 445, 108 S.Ct. at 672, and that therefore its provisions provide the only relief for those covered by the Act. Because NAFI employees are excluded from the coverage of the Act, however, other remedies for wrongful termination can be available to them under the APA. See e.g. Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132 (5th Cir.1980) (holding, inter alia that a NAFI employee could bring an action for nonmonetary relief under 5 U.S.C. § 701 and 28 U.S.C. § 1331), rev'd on other grounds 456 U.S. 728, 102 S. Ct. 2118, 72 L. Ed. 2d 520 (1982), on remand 686 F.2d 262 (1982). Based on this reasoning, allowing plaintiff leave to amend his jurisdictional statement with respect to his nonmonetary claims would not be futile, but would correct the jurisdictional deficiencies of his original complaint. CONCLUSION For the reasons set out above, plaintiff's motion to amend is GRANTED with respect to his nonmonetary claims but is DENIED as futile for his claims for money damages. Plaintiff's original complaint is DISMISSED for lack of subject matter jurisdiction, and plaintiff is directed to file and serve an amended complaint consistent with this order[1] within 20 days of the date on which it is entered. The government shall then have 20 days to respond.[2] SO ORDERED. NOTES [1] The proposed amended complaint submitted along with plaintiff's motion raises the APA as grounds for subject matter jurisdiction over plaintiff's monetary claims and is therefore not consistent with this order. [2] The court notes in passing that in its "Memorandum Opposing Plaintiff's Motion to File an Amended Complaint and In Reply to Plaintiff's Opposition to its Motion to Dismiss the Complaint" defendant raised for the first time the assertions that defendant was given all of the process he was due and that he had not exhausted his administrative remedies. While these arguments may have some merit, they are more properly considered in the context of a motion for summary judgment, and the court will therefore not address them here.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510206/	588 S.W.2d 76 (1979) N. R., Individually and as Next Friend of N. R. J. D., Plaintiff-Appellant, v. R. J. D., Defendant-Respondent. No. 39520. Missouri Court of Appeals, Eastern District, Division Two. August 21, 1979. Motion for Rehearing and/or Transfer Denied September 17, 1979. Application to Transfer Denied November 14, 1979. 77 Deeba, DeStefano, Sauter & Herd, James J. Sauter, St. Louis, for plaintiff-appellant. Murphy, Schlapprizzi & Lane, Donald L. Schlapprizzi, Albert Lebowitz, St. Louis, for defendant-respondent. Motion for Rehearing and/or Transfer to Supreme Court Denied September 17, 1979. STEWART, Judge. Action was brought against R.J.D., defendant, by N.R. as next friend of N.R.J.D., her infant daughter, and on her own behalf. The amended petition sought to have defendant declared the natural father of N.R. J.D. and for support; the mother also asked for custody and by a fair reading of the petition she sought reimbursement for lying in expenses. The action was originally filed on November 4, 1975. Defendant filed an answer and counter claim.[1] Discovery was had including depositions. Defendant died on August 7, 1976. Suggestion of death and motion to substitute party was filed on August 12, 1976. On November 8, 1976, after an administrator had been appointed, plaintiff filed a motion requesting that the administrator of the Estate of R.J.D. be substituted as the real party in interest. This motion was denied. Defendant then filed a motion to dismiss after which plaintiffs filed a motion seeking reconsideration of the court's action with respect to the motion for substitution of party. At the same time plaintiff sought leave to file an amended petition. In Count I of the proposed amended petition the child through its next friend sought a declaration of paternity and a determination of heirship. The mother sought reimbursement for lying in expenses for herself and for moneys expended for pediatric services for the child. The proposed amendment did not seek support for the child. The court denied leave to file the amended petition and sustained J.R.D.'s motion to dismiss. We consider first the proposed second amended petition because of one issue sought to be raised by that petition and which plaintiffs seek to present at this level. By the proposed amended petition, in addition to a determination of paternity, the infant plaintiff sought a determination of heirship. In seeking to be determined the heir of a putative father the illegitimate child, of necessity, attacks the constitutionality of our statutes on descent and distribution because it has been held that under our statutes an illegitimate child may not inherit from its natural father and the natural father may not inherit from his illegitimate child. §§ 474.060, 474.070, Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833 (1917).[2] Plaintiff contends that the circuit court had jurisdiction to determine heirship under § 527.040 which authorizes the circuit court by way of declaratory judgment "To ascertain any class of creditors, devisees, legatees, heirs, next of kin or other . . .." This issue is not before us for our determination because the circuit court had no jurisdiction to entertain this issue under 78 the circumstances of this case. The estate of R.J.D. had been opened before plaintiffs asked leave to amend. The amended petition sought a determination of heirship for the first time. By § 472.020 RSMo 1959 "[t]he probate court has jurisdiction over all matters pertaining to probate business . . . including jurisdiction of . . . the determination of heirship." When the application for letters was filed with the probate court in August of 1976 that court acquired jurisdiction to determine heirship and no other court of concurrent jurisdiction could interfere with its action. Younghaus v. Lakey, 559 S.W.2d 30, 31 (Mo.App.1977). The issue of heirship was the only significant amendment to the first amended petition. The first amended petition contains all allegations necessary to a full consideration of the other issues to be considered by this court. We will confine our discussions to that petition. The trial court dismissed plaintiff's first amended petition. This action gives rise to the issue of whether the court could make a determination of the status of N.R.J.D. and entertain the claim of N.R. for lying in expenses after the death of defendant. Primarily we note that at common law the illegitimate child was the child of no one. It had no standing. Under the common law of Missouri the father was not responsible for its support. State ex rel Canfield v. Porter, 292 S.W. 85 (Mo.App. 1927). This harsh rule has been all but abrogated. It has been held that the equal protection clause of the United States Constitution prohibits the states from discriminating against illegitimate in favor of legitimate children. Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968). Glona v. American Guarantee and Liability Insurance Co., 391 U.S. 73, 88 S. Ct. 1515, 20 L. Ed. 2d 441 (1968). The father is primarily liable for the support of his legitimate child and he is now liable for the support of his illegitimate child. S____ v. W____, 514 S.W.2d 848 (Mo.App.1974). Moneys spent by the mother or by a third person to provide for the child and for lying in expenses are recoverable under the theory of quasi-contract. Swanson v. Swanson, 464 S.W.2d 225 (Mo. 1971). See also V____ v. S____, 579 S.W.2d 149 (Mo.App.1979). As a general rule actions arising out of contract do not abate upon the death of the defendant. Stein v. Bruce, 366 S.W.2d 732 (Mo.App. 1963). The action for lying in expense being contractual in nature would survive the death of the putative father. An essential element of an action to recover such expenses is the paternity of the deceased. The Declaratory Judgment Act, § 527.010 RSMo 1969 provides "The Circuit courts. . . shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed.. . ." An action for declaratory judgment is the proper vehicle for determining the legal status of a child as the adoptive child or as the natural child of adoptive or natural parents. S____ v. W____, supra [2] at p. 853[2]. An action may be brought to establish the status of a person as the adoptive child of an alleged adoptive parent after the death or disability of the alleged adoptive parent. See Keiser v. Wiedmer, 263 S.W.2d 63 (Mo.App.1953) and Mize v. Sims, 516 S.W.2d 561 (Mo.App.1974). Whether an action for the sole purpose of establishing the status of an illegitimate child, or as an element of an action that survives the death of a defendant, abates upon the death of the putative father, is an issue of first impression in Missouri. In most states where the issue has been determined the action for paternity is created by statute and it has been held that the action abates in the absence of a statute to the contrary. 10 Am.Jur.2d Bastards § 97. In other states it is said that, being governed by the common law, the action abates because such actions abated at common law. The cases we have read holding the latter view cite no authority for the assertion that the action abated at common 79 law. See McKenzie v. Lombard, 85 Me. 224, 27 A. 110 (1892) and KK v. Estate of MF, 145 N.J.Super. 250, 367 A.2d 466 (1976). If there was no such action at common law as our cases indicate, it follows that there was no action to abate at common law. This casts some doubt upon the assertions made in McKenzie and in KK.[3] The duty to support a legitimate or illegitimate child terminates upon the death of the person liable for support. Fower v. Fower Estate, 448 S.W.2d 585 (Mo.1970). The early cases in which the rule was announced sought a determination of paternity and for support. Myers v. Harrington, 70 Cal.App.680, 234 P. 412 (1925). McKenzie v. Lombard, supra. That part of the action seeking support for the minor child would abate. It does not follow that the action for a declaration of the status should abate. The tendency toward the establishment of the paternity of an illegitimate child after the death of the putative father can be seen in such cases as In Re Gordon, 54 Misc. 2d 967, 283 N.Y.S.2d 787 (1967) and Henry v. Rodd, 95 Misc. 2d 996, 408 N.Y.S.2d 745 (1978). If an action to establish the status of a person as an adoptive child survives the death of the adoptive parent, to hold that an action to establish the status of an illegitimate child abates would seem to discriminate against the illegitimate child. Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968); Glona v. American Guarantee and Liability Insurance Company, 391 U.S. 73, 88 S. Ct. 1515, 20 L. Ed. 2d 441 (1968); R____ v. R____, 431 S.W.2d 152 (Mo.1968). Our trial courts are capable of discerning the truth and determining issues presented to them. We can find no logical reason to hold that an action to establish the paternity of an illegitimate child abates upon the death of the putative father. "The law. . . should not look with favor upon suspending the question of parentage of a child in limbo . . . ." A.B.C. v. X.Y.Z., 50 Misc. 2d 792, 271 N.Y.S.2d 781, 785 (1966). We hold that the action to determine the status of N.R.J.D. did not abate upon the death of R.J.D. That part of the action seeking support for the child did abate. The mother's action for lying in expenses is in the nature of an accrued debt or quasi-contract. Such actions do not abate upon the death of the debtor. Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301 (1951). The paternity of the child is a necessary element of the mother's action. Defendant cites Charles v. James, 56 Misc. 2d 1056, 290 N.Y.S.2d 993 (1968) for the proposition that in an action for lying in expenses determination of paternity must be made prior to the death of the defendant. That case is not appropriate because the child in that case had been adopted by others before the action was brought. As the court said at p. 995: Once an order of adoption is entered by a court the question of a child's paternity is no longer in doubt. By the very order of adoption the child's paternity is established and the adoptive parents become the natural parents and a new certificate of birth is ordered reflecting that change. What we have said above with respect to the right of the illegitimate child to have his status determined would provide the opportunity for proof of this element of the mother's case. Once the status of the child is determined in this cause it would be res judicata as to that issue so far as the proceedings in the probate court are concerned. Although the probate court is now a division of the circuit court only minor changes have been made to § 472.020.[4] The title of 80 the statute still refers to the "jurisdiction" of the probate division of the circuit court. It is thus apparent that dependent upon the determination of the present action the probate court could have jurisdiction to make a determination of heirship if N.R.J.D. is found to be the child of R.J.D. At that time the constitutional question of the validity of the statutes on descent and distribution would be ripe for determination. The judgment of the trial court is reversed and the cause is remanded for further proceeding consistent with this opinion. STEPHAN, P. J., and KELLY, J., concur. NOTES [1] The counter claim was dismissed and is not a consideration on this appeal. [2] A similar statute has been held to be unconstitutional. See Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977). [3] See Vol. 1 Matthew Bacon's A New Abridgment of the Law, p. 746, Bastardy (7th Ed. 1832). [4] "The probate division of the circuit court may hear and determine all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians of minors and persons of unsound mind, settling the accounts of executors, administrators and guardians, and the sale or leasing of lands by executors, administrators and guardians, including jurisdiction of the construction of wills as an incident to the administration of estates, of the determination of heirship, of the administration of testamentary and inter vivos trusts, of mental incompetency proceedings as provided by law and of such other probate business as may be prescribed by law."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510211/	821 F. Supp. 902 (1993) Lenny BOHANAN, Petitioner, v. UNITED STATES of America, Respondent. Nos. 91 Civ. 6720 (JES), 85 Cr. 1066 (JES). United States District Court, S.D. New York. May 19, 1993. Lenny Bohanan, petitioner pro se. Otto G. Obermaier, U.S. Atty. for the S.D.N.Y., New York City, for respondent; John P. Coffey, Asst. U.S. Atty., of counsel. MEMORANDUM OPINION AND ORDER SPRIZZO, District Judge. Petitioner, Lenny Bohanan, submits this pro se motion pursuant to Title 28, United States Code, Section 2255, to vacate, set aside, or correct his sentence. For the reasons that follow, the motion is denied without a hearing. Indictment S 85 Cr. 1066 (JES) was filed on April 29, 1986 in nine counts. Count One charged Lenny Bohanan with conspiracy to commit eleven armed bank robberies in violation of 18 U.S.C. § 371 (1982). Bohanan also was charged with three substantive counts of armed bank robbery in violation of 18 U.S.C. § 2113(d) (1982). On June 25 and 26, 1986, after a three week jury trial, the jury returned guilty verdicts against Bohanan and his co-defendant Hogan on all counts. Defendants' convictions 903 arose out of their participation, with Herbert Davenport, in a series of armed bank robberies which occurred in Manhattan, Brooklyn and Roosevelt, New York during 1980-1984. On July 31, 1986, this Court sentenced Bohanan to five years' imprisonment on the conspiracy count, to run concurrently with twenty year terms on each of the bank robbery counts. Bohanan filed a Notice of Appeal on August 6, 1986. On February 10, 1987, the Court of Appeals affirmed the judgment of conviction. On April 15, 1987, Bohanan filed a motion for reduction of his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure, which this Court denied on June 9, 1987. On March 15, 1989, Bohanan filed his first petition pursuant to 28 U.S.C. § 2255. On March 6, 1990 this Court dismissed that petition, adopting Magistrate Judge Michael H. Dolinger's recommendation issued February 7, 1990. On December 14, 1990, the Court of Appeals dismissed Bohanan's appeal of that order and on February 25, 1991 denied his motion for reconsideration. Bohanan subsequently filed his second 2255 motion pro se on October 7, 1991 and on November 29, 1991, moved to amend that motion to add a third claim.[1] The principal basis for Bohanan's second petition under § 2255 is alleged new evidence which petitioner received in June 1990 pursuant to a FOIA request submitted to the FBI on June 13, 1988. The Government contends that this evidence should have been included in his first petition and that the present petition should therefore be dismissed as an abuse of the writ. Although this information was not received until after the first petition was filed, it does appear that had petitioner filed his FOIA request sooner than 1988, he might well have had this evidence available at the time he filed his first petition. Nevertheless, even though there is some persuasive force to the Government's argument that the second petition should be dismissed on procedural grounds, since the Court has concluded for the reasons set forth below, that there is no merit to petitioner's claims, the Court will, in the interest of judicial economy, dismiss the petition on the merits. The new evidence upon which petitioner relies consists, in essence, of information that: (1) the FBI had another suspect, Earl Bowe, who had been found in possession of some of the proceeds of one of the bank robberies; (2) that the Government had endeavored to conceal that fact by introducing a stipulation into evidence at trial which set forth an undifferentiated amount of $10,462.00 as the loss sustained in that robbery,[2] thereby failing to disclose that $3,275.00 of that amount consisted of savings bonds, which bonds had been found in the possession 904 of Earl Bowe and; (3) that another group of bank robbers in New Jersey had used a "modus operandi," virtually identical to that used in the New York robberies for which Bohanan was convicted. To meet his burden on this petition, Bohanan must demonstrate that had the aforesaid evidence been disclosed to the defense, and been available at his trial, there is a reasonable probability that the result would have been different; see United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381-82, 87 L. Ed. 2d 481 (1985); i.e., that there is such likelihood that the result would have been different as to undermine confidence in the result reached. Moreover, as the Supreme Court noted in United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342 (1976), the good or bad faith of the prosecutor in failing to disclose the alleged evidence is not either dispositive or relevant in deciding whether the nature of the evidence not disclosed, taken in the context of all of the trial evidence, is such as to, as an objective matter, undermine confidence in the result reached. Petitioner has failed to meet that burden. Davenport, as a co-conspirator and accomplice witness for the Government, testified in detail at trial as to Bohanan's involvement in the planning, Trial Transcript ("Tr.") 323-331, 362-67, 379-383, 523-25, 529-532, and execution, Tr. 368-79, 383-90, 532-36, of the bank robberies for which Bohanan was convicted. Moreover, much of Davenport's testimony was corroborated by Cumming, a long-time acquaintance of Bohanan, who testified that Bohanan admitted to him that he had robbed the four banks set forth in the indictment, Tr. 969-84, and who identified Bohanan as one of the robbers in the bank surveillance photos taken in the MHT robbery, Tr. 985-86. Since Bohanan's convictions were based almost entirely upon the testimony of Davenport and Cumming, it was their credibility that was the crucial issue at trial as the trial record reflects. Thus, they were cross-examined extensively and their credibility, or lack thereof, was the principal focus of the defendant's arguments on summation. See Tr. 1186-1196. None of the alleged newly discovered information would or could have any substantial impact on the credibility of these witnesses. The fact that there may have been other suspects, one of whom obtained some of the proceeds of the robbery, would have in no way detracted from the probative face of their testimony or added significantly to the evidence already available to impeach them. The so called "modus operandi" proof stands in no better posture. Were this a case where the identity of the bank robbers was established by the fact that they had used an identical modus operandi with respect to other robberies with which the defendants were shown to have been connected, there might be some colorable support for a claim that the fact that others had used an identical modus operandi might have caused the jury to reject an inference of identity based upon that identical modus operandi. However, where as here, the identity of Bohanan as a participant in the robberies was based upon the testimony of an accomplice and his admissions to a long time friend, the fact that others might have used an identical modus operandi is essentially irrelevant because modus operandi was not the basis for establishing Bohanan's participation in the bank robberies alleged. Nor do claims of deliberate concealment and prosecutive misconduct enhance the validity of Bohanan's claims. Indeed, the good faith or bad faith of the prosecutor is not a factor in determining whether a new trial should be ordered based upon newly discovered evidence. United States v. Agurs, supra, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342 (1976). It follows that the cases relied upon by petitioner with respect to prosecutorial misconduct are legally and factually inapposite. Those cases did not involve an alleged Brady nondisclosure, where the good or bad faith of the prosecutor is neither dispositive nor relevant. See e.g. United States v. Valentine, 820 F.2d 565, 571 (2d Cir.1987); United States v. Crouch, 566 F.2d 1311 (5th Cir.1978). Moreover, petitioner's reliance on United States v. Morell, 524 F.2d 550 (2d Cir.1975) is misplaced because the Supreme Court abandoned the Morell *905 standard in United States v. Agurs, supra, 427 U.S. at 119, 96 S.Ct. at 2405 (Marshall, J., dissenting). Since a review of the motion papers, files and records of the case conclusively show that Bohanan is not entitled to relief, his petition is dismissed without a hearing. It is SO ORDERED. NOTES [1] This claim does not warrant extensive discussion. Bohanan argues that subsequent case law, i.e. United States v. Falcone, 934 F.2d 1528 (11th Cir.1991) requires that his conspiracy conviction be reversed. That case, relying on United States v. Hope, 861 F.2d 1574 (11th Cir.1988) concluded that the Supreme Court's decision in Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987), holding that a conspiracy to defraud the United States must be directed to the United States or one of its agencies, rendered conspiracies to rob federally insured banks no longer punishable under 18 U.S.C. § 371. However, both Falcone and Hope, in extending the holding of Tanner, which involved a conspiracy to defraud the United States, to conspiracies to commit offenses against the United States not only went well beyond the holding of Tanner but also are contrary to the great weight of authority in this Circuit and elsewhere holding that conspiracies to rob federally insured banks are punishable under the "conspiracy to commit an offense" clause of Section 371. It is therefore not surprising that the decision in Falcone, upon which petitioner relies, has since been vacated, and Falcone's conviction reinstated, 960 F.2d 988 (11th Cir.1992), and the Hope decision overruled by the 11th Circuit. Id. at 990. There is thus no colorable merit to Bohanan's claim that he was not properly convicted under Section 371. It is also true that Bohanan has not met his burden of establishing cause and prejudice for failing to raise this claim on direct appeal. See Govt.Br. at 15-16. It follows that this claim must be rejected because it is procedurally barred, and in any event lacks validity on the merits. [2] This MHT robbery is one of the eleven robberies charged in the conspiracy count but is not charged in any of the substantive counts against Bohanan.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510218/	588 S.W.2d 134 (1979) Delois ROBERSON and James Roberson, Plaintiffs-Appellants, v. MENORAH MEDICAL CENTER, Defendant-Respondent. No. KCD 30260. Missouri Court of Appeals, Western District. September 4, 1979. Motion for Rehearing and/or Transfer Denied October 1, 1979. Application to Transfer Denied November 14, 1979. 135 Elwyn L. Cady, Jr., Independence, for plaintiffs-appellants. Robert M. Sommers and Neal E. Millert, Kansas City, for defendant-respondent. Before DIXON, P. J., and SOMERVILLE and KENNEDY, JJ. Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 1979. KENNEDY, Judge. At the conclusion of plaintiff's evidence in an action for damages against defendant Menorah Hospital, the court sustained defendant's motion for a directed verdict. From the ensuing judgment for defendant, plaintiff has prosecuted this appeal.[1] Finding, as did the trial court, that plaintiff's evidence failed to make a submissible case against the defendant, we affirm the judgment. Plaintiff's case consisted of her own testimony and that of her husband, who testified briefly to her continuing disabilities, and medical records. There was no expert testimony. Facts. Plaintiff Delois Roberson had consulted Dr. Jacobs with complaints of vaginal bleeding and intercourse pain. Dr. Jacobs told the plaintiff she might need a "D and C", a "scraping of the womb". He suggested Menorah Hospital, and he recommended Dr. Mooney to perform the operation. Plaintiff entered Menorah Hospital. Dr. Mooney saw the plaintiff three or four times before the surgery, and recommended removal of the uterus, because she had "tumors". Plaintiff agreed to the surgical removal of the uterus. Dr. Mooney told her she would be in the hospital about five days and then would spend about six weeks recuperating. Dr. Jacobs also continued to call upon plaintiff in the hospital after Dr. Mooney had entered the case. The surgery, described as a "vaginal hysterectomy" was performed on March 25, 1974. She apparently was discharged from the hospital on April 1. She testified she had not improved when she left the hospital. She continued to have difficulty after her return home. She went back to Dr. Mooney twice, but according to her testimony he gave her no treatment. Dr. Mooney referred her to Dr. Wise. Dr. Wise first saw her on April 15. He discovered she had "a leakage", gave her some pain pills and put a catheter in her. The leakage was found to result from a vesicovaginal fistula, which allowed the leakage of urine from the bladder into the vagina. The Menorah clinical resume said the leakage had shown up three days before the April 15 examination. On April 28 she returned to Menorah Hospital, still under the care of Dr. Wise. This time she underwent an operation described in the hospital records as "cystocopy with retrograde and drainage of urinary extravasation". "And he explained to me that he was trying to stop the leakage, this hole, or whatever", the plaintiff said. Plaintiff described the second operation as follows: ". . . He had made an incision in my side and put a tube there for my urine to pass." She was discharged on May 1. Plaintiff was hospitalized yet a third time, on May 30. On this occasion she underwent major surgery "because the tube that was there . . . wasn't healing because I was having the IVP and he put me back in and did major surgery to repair it". She was discharged on June 8, 1974. The condition for which the April and May surgeries were performed was the vesicovaginal fistula. The condition was apparently corrected by the May 30 surgery. Plaintiff testified that after the operation and still at the time of the trial, which began April 17, 1978, she was not able to lift anything too heavy. She was unable to sit too long or stand for a length of time because she got gas in her left side. She 136 was aided in her housework by her husband, her three sons and sometimes her mother. Before the first operation she had been able to do lifting at home and at work. In July after the operation, plaintiff returned to her work at Western Electric where she was employed as a "process checker", and continued to work there until August of 1975 when she was laid off due to a work shortage. Plaintiff's claim against Dr. Mooney, who had died before trial, had been settled for $4,500 and dismissed. Duty of hospital to advise patient of risks of surgery and alternatives. We look to appellant's brief to find that she believes her evidence made a prima facie case against defendant hospital "because of a lack of informed consent to surgery". The surgery to which she says she gave no informed consent was the vaginal hysterectomy, to which we gather she attributes the vesicovaginal fistula which necessitated the two following surgical operations and the difficulties and disabilities she described in her testimony. She claims it was the duty of the hospital to explain to her the risks involved in the first surgery, the possibility of complications and possible alternative methods of treatment. The hospital, on the other hand, claims that it was under no such duty as the plaintiff attempts to place upon it. It becomes necessary to state the evidence of the hospital's role in securing the written consent. We will use plaintiff's words with some editing: Plaintiff was in the hospital in the surgical ward on the evening before the scheduled surgery. Plaintiff's husband came to visit her and plaintiff thought he had to sign the consent. A friend of hers who had had the same operation had told plaintiff that her husband had been required to sign the consent. Plaintiff called the nurse and told her that her husband was there to sign the papers. The nurse said he didn't have to sign them. The nurse brought in the consent form, left it and went back out. Plaintiff read it and it said "hysterectomy", and plaintiff thought that meant removing everything. Plaintiff went out to the nurses' station and told the nurse, "I'm not having everything removed, just the uterus". Plaintiff did not read the entire consent form. The word "hysterectomy" struck her; it was standing out. The nurse said, "Well, that's the way it's worded", and plaintiff said, "Well, how is he supposed to know he's not supposed to take everything, when it says `hysterectomy' and I'm only having one thing removed?" The nurse replied, "The doctor knows, it's on his chart". Plaintiff signed the consent. Plaintiff did not think she read any other portion of the permit than "vaginal hysterectomy". Nobody read the form to her and nobody made any explanation of any other material in that form.[2] 137 After this testimony from the plaintiff, her counsel asked her whether she would have permitted the surgery "if it had been explained that there were certain risks to this vaginal hysterectomy, as the paper stated, `risks involved, possibility of complications and possible alternative methods of treatment'". Plaintiff replied that she would not have permitted the surgery. Plaintiff introduced into evidence minutes of meetings of the medical records committee of the defendant hospital, held June 20 and July 14, 1969, in which patient consent and waiver forms were under consideration. The committee apparently had under consideration at that time a number of forms for patients' consents and waivers. Pertinent to the form signed by the plaintiff are the following excerpts from those minutes: "In the permit for surgerylayman languageit was pointed out that a nurse would be filling this in rather than the physician. The question also arose as to how the physician would fulfill the requirements of telling the patient of the risks involved . . . It was also recommended that these forms be presented to various departments, not just the chairman, for their approval." (Italics ours.) We find in the minutes of the medical records committee meetings no other references to any form for consent to surgery. There is no evidence in this record giving rise to a duty on the part of the defendant hospital to inform the patient of risks attendant upon this surgical procedure, or to inform her of alternative methods of treatment. Plaintiff was the patient of Dr. Jacobs and Dr. Mooney. It was Dr. Mooney who recommended the vaginal hysterectomy and who discussed it with plaintiff. There is no suggestion in the evidence that either physician was an agent of the hospital. The presentation to the patient of risks involved in prospective surgery cannot but call for some very nice judgments. On the one hand the patient is entitled to such information as he needs to make an intelligent decision and to give an informed intelligent consent. And yet the patient may have his apprehensions unnecessarily and unduly heightened if risks are unwisely presented, leading him to an imprudent choice. Risks must be placed in perspective. The one dealing with the patient at this point must have knowledge of the patient his temperament, his intelligence, his mental condition and his physical condition. He must also have a knowledge of the surgery itselfits risks, whether imminent or remote, and whether it is pressing, deferrable or optional. He must know the availability of conservative methods of treatment, if any, and their promises for success as compared to the surgery. All these factors must be placed in the equation. The physician alone is equipped to make the delicate judgments called for. Fiorentino v. Wenger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296, 300 (1967). 138 We speak in general terms, of course, recognizing that the hospital may in some cases have a responsibility in this area. See Gridley v. Johnson, 476 S.W.2d 475, 483-485 (Mo.1972); Fiorentino v. Wenger, supra; Hospital Law Manual (Health Law Center: Aspen Systems Corp.) Nov. 1977 UPDATE. But the present case is not one of those, and we hold that the defendant hospital in this case was under no duty to inform the plaintiff of the surgical risks. Assumption by hospital of onus of advising patient of risks of surgery and alternatives. Plaintiff, however, has argued that the hospital assumed the duty of informing the patient of the risks involved in the surgery and the possible alternate methods of treatment when the hospital furnished to plaintiff the consent form for her signature, and when it adopted the printed form of the consent. There is actually no evidence that the consent form signed by plaintiff had been adopted by the hospital, but we will assume for present purposes that it was. Plaintiff cites us to no authority nor does she advance any plausible argument that the actions of the hospital in securing the consent, as described earlier in this opinion, or in adopting the printed form, was an assumption by the hospital of a duty which we have held was the business of the physician. There was no reason for the hospital to suspect that the plaintiff had not been informed of risks and alternatives to the surgery. The form in fact contained the following recital: "The nature and purpose of the cited procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications have been explained to me . . ." Plaintiff said she did not read that part, but nothing prevented her from perusing its every word. Plaintiff was a high school graduate. She signed the form after apparently being satisfied about the meaning of the words "vaginal hysterectomy". A sentence in the medical records committee minutes, italicized above, shows the committee had in contemplation that the physician would explain the risks of surgery. No, we cannot agree that the hospital assumed that duty. The cases cited by the plaintiff are of no aid to her. Moore v. Webb, 345 S.W.2d 239 (Mo.App.1961), is a case in which the defendant pulled all of plaintiff's teeth while she was under anesthesia. She had authorized the extraction only of certain of the teeth. The permit which she had signed as she sank into anesthesia, without consultation, was held not to be binding upon her, and furnished no defense to the dentist. Plaintiff does not claim that the physician exceeded what she actually intended and actually expected in removing her uterus by means of the vaginal hysterectomy. She simply claims that there were complications and risks of which she was not informed, and that, if she had been so informed, she would not have consented to the surgery. This, she contends, vitiates the consent which she signed. In the other case cited by plaintiff, Gridley v. Johnson, supra, the alleged negligence consisted of performing a "D and C" upon plaintiff without first ascertaining whether she was pregnant. The case holds that a motion to dismiss plaintiff's petition against the hospital should not have been sustained without giving plaintiff an opportunity to plead further. The court observed, as noted above, that the duty of physicians and that of hospitals are not always definitely separated, and in some circumstances the hospital might have some responsibility for contraindicated surgery performed therein, even by an independent physician. But it falls far short of placing upon the hospital, in a case like the one now before us, the onus of explaining risks of surgery and the availability of alternative methods of treatment. Scientific treatise as proof of contents. Plaintiff offered to read to the jury, as a part of her proof, a passage from a medical treatise on gynecology. Plaintiff's attorney stated that his purpose in offering this passage was "to show the alternative methods of treatment . . . I *139 feel it's proper and admissible to have this in evidence showing a matter of alternative methods of treatment available." Even if this were allowable proof, as it is not in Missouri, Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 489 (1948); Cooper v. Atchison, T. & S.F.R. Co., 347 Mo. 555, 148 S.W.2d 773, 779-780 (1941), cert. denied 313 U.S. 591, 61 S. Ct. 1116, 85 L. Ed. 1546 (1941), it would not aid plaintiff's case since we have held that it was not the hospital's responsibility to advise the plaintiff of alternative methods of treatment. Absence of expert testimony on medical cause and effect and on risk of surgery. This record presents two other possible lacunae in plaintiff's case, which we will note without extended discussion. The second and third surgeries seem to have been necessitated by the vesicovaginal fistula which allowed the leakage of urine from the bladder into the vagina. The clinical resume of Menorah Medical Center recites that vaginal leaking showed up almost three weeks after the hysterectomy and this leakage was traced to the fistula. There is first no expert testimony that the hysterectomy caused the fistula. It is not obvious to the layman that it did so. In an area calling for medical knowledge, it would require expert testimony to establish the connection between the two. Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573, 586 (Mo. banc 1978). Furthermore, though the fistula might be the result of the hysterectomy, is it a "risk" of the hysterectomy of which plaintiff in good medical judgment and practice should have been advised? It is a question with which the layman would be ill equipped to deal without the aid of expert testimony, of which there was none. Aiken v. Clary, 396 S.W.2d 668, 673-674 (Mo.1965); Fiorentino v. Wenger, supra; Longmire v. Hoey, 512 S.W.2d 307 (Tenn.App.1974); Bly v. Rhoades, 216 Va. 645, 222 S.E.2d 783 (1976). Conclusion. The judgment is affirmed. All concur. NOTES [1] While we refer to "plaintiff" in the singular throughout the opinion, both Delois Roberson and her husband, James Roberson, were plaintiffs. [2] The consent signed by plaintiff is here set out in full: I, the undersigned, being a patient at The Menorah Medical Center, Kansas City, Missouri, having engaged Dr. Mooney, a physician and surgeon, to administer to me certain medical and surgical treatment, hereby consent to and authorize the administration and performance of the following (operation) (treatment) (procedure): Vaginal Hysterectomy which I understand (medical terminology) to be _____________________ to be performed (in layman language) by the above named physician and surgeon, or any physician and surgeon, or any physicians or surgeons associated with or by him, or acting under any of their instructions utilizing the facilities of The Menorah Medical Center. The aforementioned (operation) (treatment) (procedure) shall include consent for arrangements for anesthesia procedures as may be considered necessary or advisable by the aforementioned physician and surgeon, by the Department of Anesthesiology of Menorah Medical Center or Anesthesiology Services, Inc., and any preliminary and/or further or additional treatments and operations, tests, transfusions, injections that may be, in the judgment of said physician and surgeon or any other physicians or surgeons that may be associated with or by him or any of his designees considered or deemed advisable or necessary at the time the contemplated (operation) (treatment) (procedure) is being performed, or at any time subsequent thereto, until I am discharged from The Menorah Medical Center. The nature and purpose of the cited procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications have been explained to me. I acknowledge that no Guarantee or assurance of the results that may be attained has been given by anyone. (Applicable only if surgery) I consent to the pathological study and disposal by hospital authorities of any removed tissues. It has been explained to me that, during the course of the operation, unforeseen conditions may be revealed that necessitate an extension of the original procedure(s) or different procedure(s) than stated above. I therefore authorize and request that the above named surgeon, his assistants, or his designees perform such surgical procedures as are necessary and desirable to the exercise of professional judgment. The authority granted here shall extend to treating all conditions that require treatment which were not known to the named surgeon at the time the operation is commenced. The intention being to grant full authority to the said physicians and surgeons and said Menorah Medical Center, all their respective employees and assistants, to administer and perform all and singular any drugs, treatments, tests, or diagnostic procedures to or upon me which may now, or during the contemplated services be deemed advisable or necessary by the herein designated physician or surgeon, or any physicians or surgeons associated with or by him or acting under their or any of their instructions. /s/ Deloia H. Roberson /s/ Norma Hanewalt RN Patient, or Person Responsible Witness for the Patient 3-25-74 7 pm Date Time	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510261/	588 S.W.2d 804 (1979) G & R INVESTMENTS, a partnership, et al., Appellants, v. James K. NANCE, Jr., Appellee. No. B2111. Court of Civil Appeals of Texas, Houston (14th Dist.). July 18, 1979. Rehearing Denied September 5, 1979. Joel W. Cook, Schlanger, Cook, Cohn, Mills & Grossberg, Houston, for appellants. Brantly Harris, Prappas, Moncure, Harris & Termini, Houston, for appellee. Before J. CURTISS BROWN, C. J., and COULSON and MILLER, JJ. COULSON, Justice. This is an appeal from a temporary injunction restraining the appellants Guy J. Robertson, G & R Investment, a partnership, Wilcrest/Westheimer, a partnership, Richard P. Schissler, Jr., and M. A. Mills from foreclosing on and selling appellee Nance's one-third interest in Wilcrest/Westheimer, a partnership, pending final hearing upon the cause of action. Appellants (Robertson, et al) have filed a motion to dismiss their appeal as moot on the ground that a final hearing has been held and judgment entered on the merits. We grant appellants' motion to dismiss as moot. In 1976 appellee Nance left his employment with First Mortgage Company of Texas to become employed by Pilgrim Realty Company, an entity of which appellant Robertson was apparently a co-owner. This occurred after several discussions between Nance and Robertson concerning the advantages Nance could acquire by dealing with Robertson in real estate development. During the term of Nance's employment by Pilgrim Realty, Robertson arranged for Nance to become a partner in some six different real estate developments. Nance alleged that Robertson promised to "carry" him as far as equity calls for these developments might be made, because Nance did 805 not have the funds to contribute to such enterprises. Wilcrest/Westheimer was one of the development partnerships in which Nance became a partner, along with Robertson and Schissler. In connection with the Wilcrest/Westheimer partnership Nance executed a promissory note in the principal amount of $39,000.00, secured under a security agreement by his one-third interest in the partnership. This note was executed in favor of G & R Investments, a partnership between Robertson and Schissler, and represented money to be advanced in the future by G & R to cover necessary expenses of Wilcrest/Westheimer. In January of 1979, after Nance had left his employment with Pilgrim Realty, G & R Investments made demand upon him for payment of the $39,000.00 note. When payment was not made G & R notified Nance that a foreclosure sale of his one-third interest in Wilcrest/Westheimer would be held pursuant to the terms of the security agreement. Nance filed suit against appellants and on January 26, 1979, obtained a temporary restraining order restraining the foreclosure sale of his one-third interest in Wilcrest/Westheimer. On February 6, 1979, after a hearing a temporary injunction to the same effect was entered. Appellants appeal from that order granting a temporary injunction. Subsequent to appellants filing their appeal, but before the cause was set for submission in this court, a trial on the merits was held in the lower court. On May 4, 1979, a final judgment was entered in that case denying Nance's request for a permanent injunction and granting certain other relief to appellants. Nance has filed an appeal from that judgment but the case has not yet been submitted to this court.[1] Appellants have filed a motion to dismiss their appeal on the ground that the question whether the temporary injunction should have been granted is moot because a final determination has been made by the trial court that no permanent injunction should be granted and that the temporary injunction would be dissolved. Appellee Nance argues however that this case is not moot due to the fact that he has filed a supersedeas bond in connection with his appeal from the judgment on the merits of the trial court. The question presented here is whether a temporary injunction is revived by the filing of a supersedeas bond pursuant to an appeal from the judgment denying the permanent injunction sought in the same case. Appellee Nance cites the case of Gulf, C. & S. F. Ry. Co. v. Fort Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199 (1886) to support his contention that the effect of filing a supersedeas bond is to supersede or suspend the final judgment denying the permanent injunction and thus to continue the temporary injunction in effect. That case does state that "when an injunction is dissolved in a final judgment, and an appeal is prosecuted by giving a supersedeas bond, the dissolution is suspended, and the injunction is continued in force by the appeal," 2 S.W. at 201. In the later case of Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14 (1902), however, the Supreme Court distinguished the Gulf, C. & S. F. Ry. Co. case as one where the temporary injunction order expressly made the temporary injunction effective "until the final determination of the suit," which did not occur until the appeal had been disposed of. The Riggins court pointed out that the temporary injunction order in the case before it provided that it was to remain in effect only until a hearing was had on the merits in the trial court and thus had expired on its own terms at the time such trial on the merits was had. See Fort Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 163, 7 S.W. 381 (1887), where it was held that a restraining order which had ceased to be operative by its own terms could not again be brought into existence by means of an appeal with the filing of a supersedeas bond. 806 The temporary injunction order in the case before us orders "that Defendants M. A. Mills, Guy J. Robertson and G&R Investment be and they hereby are restrained and enjoined from taking any further action to sell or cause to be sold Plaintiff's one-third (1/3) interest in Wilcrest/Westheimer, a partnership, and that the Clerk of this Court issue a writ of injunction pending final hearing hereof so restraining and enjoining said Defendants" (emphasis added). The order further provides that if the case "is not granted a preferential setting in the March-April 1979 term and tried on the merits within ninety days from and after February 2, 1979, Plaintiff shall be required to file an additional bond in the sum of $10,000.00 conditioned as the law requires, and if he fails to do so, the Court thereafter will entertain a motion to dissolve the temporary injunction." We find that the trial court's order for a temporary injunction was clearly intended to remain in effect only until an early hearing on the merits could be had in the trial court, and was not intended to remain in effect until the final disposition of the case in the appellate courts. It thus expired, by its own terms, at the time of the resolution on the merits on May 4, 1979, and could not be revived by the filing of a supersedeas bond pursuant to an appeal. Accordingly we have determined that this cause is moot. This result is further supported by an examination of the purposes for which a temporary injunction is granted. The only purpose of a temporary injunction is the "preservation of the status quo of the subject matter of the suit pending a final trial of the case on the merits," Transport Co. of Texas v. Robertson Transport, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). Here there has been a trial on the merits, the temporary injunction has been set aside and the permanent injunction denied, and there is an appeal pending from that judgment. The time for determination of the respective rights of the parties is upon the appeal from the determination of the cause on the merits where the appellate court will have available the entire record made at such hearing. Texas City v. Community Public Service Co., 534 S.W.2d 412, 415 (Tex.Civ. App.Beaumont 1976, writ ref'd n. r. e.). When a final judgment has been rendered by the trial court and an appeal has been perfected therefrom the case enters a different phase. Under certain circumstances the trial judge may enter a stay pending appeal or the appellate court may, as we have done in this case, enter an order under Article 1823, Tex.Rev.Civ.Stat.Ann. (1964) to preserve our jurisdiction.[2]City of Corpus Christi v. Cartwright, 281 S.W.2d 343, 344 (Tex.Civ.App.San Antonio 1955, no writ); Texas City v. Community Public Service Co., supra. There is no compelling reason to hold that the filing of a supersedeas bond should empower an appellant to revive a temporary injunction which was granted after an abbreviated hearing only to preserve the status quo pending a disposition on the merits, and was dissolved when such disposition was made by the trial court after a full hearing. Accordingly we have determined that this cause is moot and the appeal from the granting of the temporary injunction is dismissed. This action is taken without prejudice to the rights of the parties in their appeal from the judgment on the merits and we express no opinion upon the merits of the contentions advanced by them in this appeal. Texas City v. Community Public Service Co., supra. Appellants have requested that we tax the costs of this appeal against appellee, arguing that the fact that a permanent injunction was denied establishes that it was improper for appellee to have obtained a temporary injunction. This proposition is not persuasive because the reasons for granting a temporary injunction are not the same as those for granting a permanent injunction. A temporary injunction serves only to preserve the status quo until the rights of the parties can be determined at a hearing on the merits. The fact that full hearing demonstrates that plaintiff is not *807 entitled to a permanent injunction does not render the granting of the temporary injunction an abuse of discretion on the part of the trial court. Furthermore, we observe that the trial judge made provision that an early hearing on the merits should be had. Such provision follows this court's recommendations made in Gonzales v. Norris of Houston, Inc., 575 S.W.2d 110 (Tex.Civ.App.Houston [14th Dist.] 1978, writ ref'd n. r. e.). The case before us is one which was resolved on the merits prior to the time that this court could consider the appeal from the interlocutory order. The time and expense involved in prosecuting this appeal could have been avoided had appellant followed our recommendation in Gonzales to try the case on the merits and allow the facts and law to be fully developed before asking this court to rule on the controversy. There is no compelling reason to apply to this court for a ruling on this controversy at an interlocutory stage when the trial court had provided for an early resolution of the merits of the case. The costs will remain taxed against appellants. The appeal from the order granting a temporary injunction is dismissed as moot and all costs of this appeal are to be taxed against appellants. NOTES [1] See our opinion on the motion by Robertson, et al, to dissolve our writ of injunction or to increase Nance's supersedeas bond in the case of Nance v. Robertson, et al, 588 S.W.2d 802, Tex.Civ.App., number B2181, which accompanies this opinion. [2] See footnote 1, supra.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510241/	588 S.W.2d 322 (1979) Pete ZARAGOSA, Appellant, v. The STATE of Texas, Appellee. No. 60434. Court of Criminal Appeals of Texas, Panel No. 1. May 23, 1979. Rehearing Denied October 31, 1979. Allan R. Manke, San Antonio, on appeal only, for appellant. Bill M. White, D.A., Sharon S. MacRae and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State. Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ. Rehearing En Banc Denied October 31, 1979. OPINION ONION, Presiding Judge. This appeal is taken from a conviction for carrying a handgun on licensed premises which resulted, following a guilty plea, in a bench trial. The punishment was assessed at eight (8) years' imprisonment in light of the allegation and proof of one of two prior convictions alleged for the enhancement of punishment. The appeal presents a case of initial impression given its unique fact situation concerning the power of the trial court to grant a motion for new trial of its own accord. The record reflects that originally the appellant entered a "not guilty" plea to 323 the indictment in a bench trial which commenced on July 12, 1977. After the State presented its case as the primary offense, appellant's counsel asked time to secure certain witnesses. A recess ensued. The docket sheet reflects that on July 19, 1977 the trial was reconvened, that evidence was heard, and that the trial court found the appellant was guilty and had been twice previously convicted of the felonies alleged.[1] The statement of facts, however, does not reflect what evidence was produced at the July 19th hearing. The statement of facts jumps from the recess on July 12th until an apparent hearing on September 15, 1977 on the motion for new trial (filed on July 26th). At the commencement of such hearing, appellant's counsel announced that the appellant was withdrawing his motion for new trial. No evidence was offered. In response to the court's inquiry, the appellant personally acknowledged he was waiving his motion for new trial and agreeing to accept sentence. In the process of formally pronouncing sentence, the trial court stopped and asked to examine the motion for new trial (a general form motion).[2] Mention was then made by the court that the "enhancement proof in this case . . would be inadmissible under the case that we read after this trial." The court then orally granted the motion for new trial, stating, "I think we may as well straighten it out here rather than doing it on appeal." The State took exception to the court's action, and appellant's counsel simply replied, "Okay, Sir." Subsequently, the appellant filed a "Plea In Bar" alleging the enhancement portion of the indictment had not been properly proven and he would be placed in jeopardy if retried. The record does not show that such plea was ever presented to or acted upon by the trial court. On March 29, 1978, the appellant waived trial by jury and entered a guilty plea before the court to the primary offense and a plea of "true" to the third paragraph of the indictment. The first prior conviction alleged for enhancement of punishment (alleged in second paragraph) was waived and abandoned by the State.[3] The court assessed punishment at eight (8) years' imprisonment. On appeal from this conviction, appellant asserts that the court erred in granting a new trial after he had abandoned his motion for new trial following his first conviction, and that in being forced to trial a second time he was placed in double jeopardy in violation of the federal and state constitutions. Generally, a motion for new trial must be determined within twenty days after it has been filed or it will be deemed overruled by operation of law. Article 40.05, V.A.C. C.P.;[4]Trevino v. State, 565 S.W.2d 938 324 (Tex.Cr.App.1978); Abrams v. State, 563 S.W.2d 610 (Tex.Cr.App.1978); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Resendez v. State, 523 S.W.2d 700 (Tex.Cr. App.1975). While the provisions of Article 40.05, supra, permit the trial court to extend the time to file or amend a motion for new trial, it does not authorize an extension of time in which such a motion may be determined, and it has been held that a hearing conducted after a motion for a new trial has been overruled by operation of law will not be considered on appeal. Trevino v. State, supra; Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). See McIntosh v. State, supra; St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969). At the time of the trial court's action here in question on September 15, 1977, appellant's motion for new trial filed on July 26, 1977 had already been overruled by operation of law. The appellant offered no evidence on said motion,[5] but in fact withdrew the motion prior to the court's ruling. There was in fact at the time no motion for new trial by appellant for the court to rule upon.[6] Therefore, the court's action must be characterized as granting a new trial motion of its own accord. The question then arises whether a trial court in a criminal case has the authority to grant a motion for a new trial on its own motion. It appears to be well settled in this state that in civil cases a trial court is not restricted to the grounds set out in the motion for new trial, but may grant a new trial on its own motion and does not have to give its reasons for granting a new trial. See Napier v. Napier, 555 S.W.2d 186 (Tex. Civ.App.1977); 29 Tex. Digest, New Trial, and cases there cited. The general rule in this country is that in civil cases the trial court may grant a new trial on its own motion. See 66 C.J.S. New Trial § 115, p. 328; 58 Am.Jur.2d, New Trial, § 11, p. 196. The rule does not appear to be as well settled in criminal cases. In a few jurisdictions the trial court has the power to order a new trial on its own motion. See Fla. Rules of Crim.Proc., Rule 3.580. This is particularly true where sufficient cause exists. Commonwealth of Pa. v. Dennison, 441 Pa. 334, 272 A.2d 180 (1971); State v. Hawkins, 72 Wash.2d 565, 434 P.2d 584 (1967); Sanders v. State, 239 Miss. 874, 125 So. 2d 923 (1961); Commonwealth v. Endrukat, 231 Pa. 529, 80 A. 1049 (1911).[7] Yet in other jurisdictions, apparently because of a risk of double jeopardy,[8] the trial court has no power to order a new trial on its own motion in a criminal case but can act only on a motion made by the defendant. The disability often arises from the terms of 325 statutes. See, e. g., Federal Rules of Crim. Proc., Rule 33; Colorado Rules of Crim. Proc. 33(a); Vt. Rules of Criminal Proc., Rule 33; Wyo. Rules of Crim.Proc., Rule 34; People v. Thompson, 10 Cal. App. 3d 129, 88 Cal. Rptr. 753 (1970); Crymes v. State, 52 Ga.App. 195, 182 S.E. 856 (1935); State v. Whitbeck, 134 La. 812, 64 So. 759 (1914). See also 85 A.L.R. 2d 486. In Arizona the rule provides that the "court on motion of the defendant or on its own initiative with the consent of the defendant may order a new trial." Ariz. Rules of Crim.Proc., Rule 24.1(a). This appears to be a compromise approach.[9] See and cf. State v. Harper, 353 Mo. 821, 184 S.W.2d 601 (1945). In United States v. Green, 134 U.S.App. D.C. 278, 414 F.2d 1174 (1969), the Court wrote: "... Since no such motion was made by the defendant the trial judge had no power to order a new trial, and the action taken is a nullity." The Court noted the Federal Rules of Criminal Procedure, Rule 33, provided that a motion for new trial may be granted "on motion of the defendant," and that the advisory committee had stated that the purpose of the 1966 amendment to Rule 33 was to "make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant." To the same effect is United States v. Vanterpool, 377 F.2d 32 (2nd Cir. 1967); United States v. Tinney, 340 F. Supp. 1146 (D.C.1972); United States v. Newman, 456 F.2d 668 (3rd Cir. 1972); United States v. Eaton, 501 F.2d 77 (5th Cir. 1974); United States v. Braman, 327 A.2d 530 (D.C.App.1974). In Newman, the court wrote: "... Since it is, therefore, clear that the defendant in this case could not have amended his motion for a new trial to include a new ground after the seven-day period prescribed in Rule 33 had expired, it would be entirely inconsistent with the purpose of the 1966 amendments to Rule 33 to allow the district court to grant a new trial motion four and one-half months after this seven-day period has elapsed for reasons advanced sua sponte by the court...." In Eaton, the court wrote: "... We find it unnecessary to entertain Eaton's claim of double jeopardy because we find that Judge Brewster lacked the authority to order a new trial when one had not been requested by the defendant. * * Both Green and Vanterpool point out that the trial court's lack of authority to order a new trial sua sponte makes a nullity of the second trial and the conviction emanating therefrom. However, as both decisions specifically hold, this determination does not automatically lead to the conclusion that the original conviction ought to be overturned or the original indictment dismissed. "Eaton's second indictment and conviction are void in all respects. This can only mean that Eaton's first conviction remains intact...." In Powell v. District Court, 473 P.2d 254 (Okl.Cr.1970), petitioner pled guilty to criminal charges and was assessed five years' imprisonment in each case to run concurrently as part of plea bargain. Five other cases were dismissed. Petitioner's attorney withdrew from the case, and petitioner filed a pro se motion for new trial and gave notice of appeal. His motion for new trial was denied. The State then filed its motion to vacate the two judgments and sentences and it was granted over objection. The seven cases were refiled. Petitioner then brought proceedings in the appellate court to prevent the trial court from vacating the judgments and sentences. In Powell the Oklahoma Court of Criminal Appeals wrote: "This Court held in Glassco v. State, 53 Okla. Crim. 61, 7 P.2d 172 (1932), that a new trial may be granted in a criminal case only upon motion of the defendant and 326 upon the grounds stated in the statutes; and, that the court has no power to grant a new trial on its own motion, over the objection of the defendant. The Court also held that a new trial is granted on defendant's motion, that defendant waived his constitutional protection against former jeopardy. Nowhere in the statutes is it provided that in a criminal case, in the absence of fraud or other matters that vitiates the verdict, that a new trial can be granted on the application of the state or by the judge on his own motion. The order entered in petitioner's cases, vacating the judgments and sentences, was clearly based upon the state's motion. The effect in this instance was the same as if it had resulted from a plainly stated Motion for New Trial. See: 85 A.L.R. 2d 486, 491." The court held that the order granting the new trial should be set aside, vacated and held for naught and the judgments and sentences in the two cases should be reinstated. Turning to our statutes, we find that Article 40.02, V.A.C.C.P., provides: "A new trial can in no case be granted where the verdict or judgment has been rendered for the accused." Article 40.03, V.A.C.C.P., provides in part: "New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other: ...." (Emphasis supplied.) Castro v. State, 118 Tex. Crim. 53, 42 S.W.2d 779 (1931), did not involve a motion for new trial. It was a burglary case where the jury recommended a five year suspended sentence. Prior to sentence, the prosecutor learned that the defendant had a prior conviction which rendered him ineligible for the suspended sentence and the State then presented a motion to the court to disregard the verdict as to the recommendation of the jury as to the suspended sentence. Over objection, the court granted the State's motion and entered judgment disregarding the jury's recommendation. On appeal the action of the court was set aside and the judgment reformed to conform to the verdict rendered. In so doing, the opinion stated: "... The procedure adopted impresses the writer as obnoxious to the rule that a new trial in a criminal case cannot be granted upon the motion of the state but upon that of the accused alone, and that the court is without power to enter a judgment or to annul a verdict in favor of the accused in a criminal case at the instance of the state. See Article 752, C.C.P., 1925." (Now Article 40.02, V.A.C.C.P.) The only Texas case which involved a new trial granted by the court on its own motion was Grisham v. State, 19 White & W. 504 (1885). It did not turn, however, on the authority or lack of authority of the court to grant such motion of its own accord. On appeal from a conviction for assault with intent to murder, the court held that the plea of former conviction should have been submitted to the jury under appropriate instructions. In so holding, the court observed that the defendant had been previously convicted of aggravated assault on an information filed in county court charging him with assault upon the same person at the same time and place as the indictment for assault with intent to murder. The record reflected the defendant was fined $25.00 and was remanded to the custody of the sheriff until the fine and costs were paid. A few days later the county judge on his own motion and without consent of the defendant granted the defendant a new trial. The indictment then followed. The court noted that a conviction followed by an endurance of punishment will bar a future prosecution for the same offense. As earlier noted, the case did not turn on the power of the court to grant a motion for new trial on its own motion per se. While our statutes are not as clear-cut as those in other jurisdictions, we conclude in light of Articles 40.02 and 40.03, supra, that a motion for new trial in a criminal case may be granted only on the timely made motion of a defendant and the trial court has no authority to grant a new 327 trial on its own motion. In the instant case we find the trial court had no power to grant the new trial as it did, even though its concern about straightening the matter out without an appeal was commendable. As in Eaton, Green and Vanterpool, we conclude that the court's lack of authority to order a new trial sua sponte made a nullity of the second trial and conviction, and we find it unnecessary to entertain appellant's claim of double jeopardy. It does not follow that the original conviction ought to be overturned, but the cause shall be returned to the trial court to proceed as if it had not granted the new trial on its own motion. We are not unmindful of the provisions of Article 40.09, § 12, V.A.C.C.P.,[10] as to the authority of the trial court to grant a new trial during the appellate process, but we conclude that such authority is limited by its very provisions of the statute to the time the defendant has been sentenced, gives notice of appeal and files an appellate brief asking in effect for a new trial. The statute does not call for a different result than we have reached. The judgment of the second conviction is set aside, and the judgment of the original conviction is reinstated, and the trial court is ordered to proceed as if it had not granted a new trial. NOTES [1] The formal written judgment reflects the trial "commenced" on July 12th. A separate page in the record shows the judgment was filed on July 12th, although the docket sheet reflects evidence was heard on July 19th and the judgment was then entered. While the judgment would normally control over the docket sheet, we do not view the two as being inconsistent. It appears that only on the separate page a clerical error was made as to the date the judgment was filed. Thus, there should be no question that the appellant's motion for new trial filed on July 26, 1977 was timely filed within the ten day period authorized by Article 40.05, V.A.C.C.P. [2] The new trial motion simply states: (1) the judgment is contrary to the law; and (2) there was no evidence to support the finding of the court. [3] In the pleadings and in the statement of facts the second and third paragraphs of the indictment alleged for the purpose of enhancement of punishment are referred to as "counts" by all parties in this record. They are not "counts" and should not be referred to as such. Square v. State, 145 Tex. Crim. 219, 167 S.W.2d 192 (1942); Beck v. State, 420 S.W.2d 725 (Tex.Cr.App.1967); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Baker v. State, 437 S.W.2d 825, 827 (Tex.Cr.App.1969) (Concurring Opinion); Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970); Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969). [4] Article 40.05, V.A.C.C.P., provides: "A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed. Such motion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be determined by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal. "A motion for new trial may be filed after the expiration of the term at which said conviction resulted, either during a new term of court or during vacation, and a motion for new trial may be determined in vacation or at a new term of court, and need not be determined during the term at which filed." [5] The motion for a new trial is but a pleading and the allegations therein do not prove themselves, but must be proved. Polk v. State, 172 Tex. Crim. 211, 355 S.W.2d 712 (1962); Mackey v. State, 480 S.W.2d 720 (Tex.Cr.App.1972); Tsamouris v. State, 472 S.W.2d 141 (Tex.Cr. App.1971); Allsup v. State, 495 S.W.2d 238 (Tex.Cr.App.1973). The burden of proof is on the movant. [6] If the court had permitted the appellant to file an amended motion for new trial and then granted the same the question before us would not have been presented. Article 40.05, V.A.C. C.P., permits the court to extend the time for filing and amending the motion for new trial by a defendant but does not permit the extension of time by the trial court for determination of the motion. [7] In People v. Williams, 65 Mich.App. 531, 237 N.W.2d 545 (1975), it was held that although the state statute authorized the trial court to grant a new trial when it appeared that justice had not been done, the trial court could not use vehicle of a new trial to "correct" a validly imposed sentence once the defendant had begun serving it. [8] See 4 Wharton's Criminal Procedure, § 590, p. 165. [9] In State v. Hopper, 112 Ariz. 131, 539 P.2d 888 (1975), it was held that granting a new trial at the time of sentencing upon the court's own motion and without consent of the defendant constituted reversible error. [10] Article 40.09, § 12, V.A.C.C.P., provides: "It shall be the duty of the trial court to decide from the briefs and oral arguments, if any, whether the defendant should be granted a new trial by the trial court. This duty shall be performed within the period of thirty days immediately after the state's brief is filed, or, if none be filed, then within the period of thirty days immediately after the last day on which the state's brief could be timely filed. Omission of the court to perform this duty within such period shall constitute refusal of the court to grant a new trial to defendant."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510264/	588 S.W.2d 481 (1979) Glenn H. BINGER et al., Respondents and Cross-Appellants, v. CITY OF INDEPENDENCE, Missouri, Appellant and Cross-Appellee No. 60762. Supreme Court of Missouri, En Banc. September 11, 1979. Rehearing Denied October 19, 1979. 482 Robert H. Freilich, University of Mo., School of Administration, Kansas City, James S. Cottingham, Thomas D. Cochran, Richard G. Carlisle, Independence, for appellant and cross-appellee. W. Raleigh Gough, Rufus B. Burrus, Independence, for respondents and cross-appellants. JAMES A. FINCH, Jr., Senior Judge. This is an appeal in a declaratory judgment suit wherein plaintiffs, as representatives of a class of objecting property owners, sought a declaration that annexations by the City of Independence of five contiguous areas in which plaintiffs reside were unreasonable and therefore void. The trial court held that plaintiffs were entitled to maintain the class action, that all of the annexations were unreasonable and voidable and that they should be set aside as requested by plaintiffs. On appeal the Missouri Court of Appeals, Western District, reversed, holding that the annexations were valid. However, on application of plaintiffs, it ordered the case transferred to this court "because of the general interest and importance of this case in that the opinion herein of this court may extend or broaden the present scope of review and quantum of proof necessary in annexation cases." We now decide the case as though here on direct appeal. Mo.Const., Art. V, § 10. We reverse. Independence is a constitutional charter city. Such cities annex territory by amending their city charters to incorporate into the city the area to be annexed. City of Hannibal v. Winchester, 391 S.W.2d 279 (Mo. banc 1965). In 1958, Independence adopted a "holding ordinance" to indicate that it was contemplating annexation of a large area to the east and northeast. The city annexed 13.4 square miles thereof in 1960 and 16 square miles in 1963, plus two very small tracts in 1961 and 1962. These extended the eastern boundary of Independence to the Little Blue River and increased the area of the city to 47.8 square miles. 483 In 1968 the city completed and published a comprehensive plan for future development which included planning for areas proposed for annexation. Some revisions were made subsequently and in the spring of 1972 the city adopted ordinances which provided for amending the city charter to annex five territories containing 29.7 square miles of land. These territories were a part of the area designated in the "holding ordinance" of 1958 and included in the comprehensive plan. The ordinances called for a vote thereon by the voters of Independence in a special election to be held on December 5, 1972. In that election the vote favored annexation of all five territories. Territory No. 3 was to be annexed effective December 31, 1973, Territories 1 and 2 effective December 31, 1974, and Territories 4 and 5 effective December 31, 1975. Thereafter, the procedures whereby annexation was accomplished were attacked in a proceeding in the nature of quo warranto which sought to oust Independence from exercising jurisdiction over the five territories annexed. The trial court ordered ouster but on appeal this court reversed, holding (1) that annexation by charter amendment was the proper and exclusive method of annexation by a constitutional charter city, (2) that proposals to approve such charter amendments could be voted on at a special election and (3) that simultaneous elections in the territories to be annexed, required by § 71.870,[1] were not necessary because on December 5, 1972, the date of the special election, Jackson County had not yet become a first class chartered county. State at inf. of Martin v. City of Independence, 518 S.W.2d 63 (Mo.1974).[2] Thereupon plaintiffs filed this action attacking the reasonableness of and necessity for the annexations. Prior to 1953 the courts of Missouri reviewed the validity of annexation proceedings only after they were consummated. This occurred when and if suits attacking such annexations were filed. Usually this was by suits in equity to enjoin enforcement. Sometimes it was by quo warranto and at least once it was by a suit for declaratory judgment. As this court said in City of St. Joseph v. Hankinson, 312 S.W.2d 4, 8 (Mo.1958), "In so doing, it has been the universal rule that the court does not, in any sense, substitute its discretion or judgment as to the advisability or propriety of the annexation for that of the legislative body of the city, and that it does not review the legislative discretion; its consideration of `reasonableness' is confined to a determination of whether there exists a sufficient showing of reasonableness to make that question, at the least, a fairly debatable one; if there is such, then the discretion of the legislative body is conclusive. State ex inf. Taylor ex rel. Kansas City v. North Kansas City, Banc, 360 Mo. 374, 228 S.W.2d 762; Faris v. City of Caruthersville, Mo. App., 301 S.W.2d 63; State ex inf. Mallet ex rel. Womack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393; Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236. The function of our courts, historically, has been merely to determine, in the light of these principles, whether the exercise of the legislative powers has been arbitrary and clearly unreasonable. (See the cases just cited.) Only to this extent do our courts consider the reasonableness of an annexation." In 1953 legislation known as the Sawyers Act was enacted. Laws 1953, p. 309, § 1. It now is identified as § 71.015. It provides: "Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation 484 of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation. The petition in such action shall state facts showing: 1. The area to be annexed; 2. That such annexation is reasonable and necessary to the proper development of said city; and 3. The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective. Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070, RSMo." This section was construed in City of St. Joseph v. Hankinson, supra, at p. 9 as follows: "We construe § 71.015 as merely giving to the courts, in advance of a consummated annexation, the same judicial power and authority to test the reasonableness and necessity for an annexation which they have always exercised after its completion; that is to say, to decide whether the legislative declaration by the city is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of its legislative power." In McConnell v. City of Kansas City, 282 S.W.2d 518 (Mo.1955), plaintiff attacked an annexation by Kansas City on the basis that it had not obtained the declaratory judgment mandated by § 71.015. The court held that the Sawyers Act, insofar as it sought to impose the procedure therein specified on a constitutional charter city as a condition precedent to proceeding with annexation, was unconstitutional. This ruling was reaffirmed in Hannibal v. Winchester, 391 S.W.2d 279 (Mo. banc 1965) and in St. Louis County v. City of Florissant, 406 S.W.2d 281 (Mo. banc 1966). Plaintiffs do not now contend otherwise but they do assert that the Sawyers Act, in addition to prescribing a procedure to follow in the annexation process, had the effect of impliedly repealing the previously existing discretion of city legislative bodies to resolve the reasonableness of and necessity for annexation and that this portion of the Act is applicable to constitutional charter cities. They further contend that since cities which are required by the Sawyers Act to file a suit to determine reasonableness and necessity have the burden of proof to establish that annexation is reasonable and necessary, a similar burden must be placed on constitutional charter cities, even though the action attacking reasonableness is filed by property owners, because to hold otherwise would result in a denial of equal protection as between constitutional charter and other cities. We reject both of these contentions. With reference to the argument that the Sawyers Act had the effect of limiting the legislative discretion of all cities in the annexation process, it is true that this court in McDonnell Aircraft Corp. v. City of Berkeley, 367 S.W.2d 498 (Mo.1963) held that even though constitutional charter cities are not required to follow the procedure specified in § 71.015, said section does set standards for all cities in that it requires that such annexation must be reasonable and necessary. However, that does not mean that enactment of § 71.015 had the effect of changing the nature of judicial review of such proceedings from what it had been theretofore. In fact, the decisions of this court hold to the contrary. As previously noted, the court in City of St. Joseph v. Hankinson, supra, held that the Sawyers Act merely provided for the courts in advance of the completion of annexation, to exercise "the same judicial power and authority to test the reasonableness and necessity for an annexation which they have always exercised after its completion;" 312 S.W.2d at 9. Case law already required that annexation be reasonable and necessary. This conclusion that a change in the nature of judicial review of annexation was not produced by enactment of the Sawyers Act necessarily follows from what the court 485 said later in City of Olivette v. Graeler, 369 S.W.2d 85, 96 (Mo.1963): "In our view plaintiff has not met its burden of proving the elements required by the Sawyers Act. In so ruling we do not usurp the legislative function, but merely hold that there was no substantial evidence to show that the proposed annexation was reasonable. The so-called `debatable' rule merely means that if there is substantial evidence both ways, then the legislative conclusion is determinative." In Graeler the court applied the rule, articulated in Hankinson, that the court will defer to the legislative determination of reasonableness and necessity if the evidence shows the question was "fairly debatable." The court concluded that the evidence in that case did not so show and therefore held the annexation invalid. In the later case of Young v. Mayor, Council and Citizens of the City of Liberty, 531 S.W.2d 732, 737 (Mo. banc 1976), the court again clearly stated that the test of reasonableness and necessity under § 71.015 was the same question resolved in cases before the Sawyers Act, saying: "The purpose and effect of this statute has been stated in the numerous cases which have arisen since its passage. It does require a favorable judgment as a condition precedent to a municipal annexation. The essential consideration for the court is the reasonableness of the proposed action, the same judicial question which was involved in annexation cases prior to the Sawyers Act, except that in those cases, the question arose subsequent to the annexation, not before. * * * Annexation by a municipality remains a legislative prerogative. The Sawyers Act affects merely the procedure by which the limited authority of the judiciary in the process is invoked. City of St. Joseph v. Hankinson, supra." Thus the effect of the Sawyers Act was procedural rather than substantive. Whereas the practice had been for annexation to be completed after which reasonableness and necessity were judicially reviewed if a suit calling for such review was instituted, the Sawyers Act required such review during the process of annexation and before its completion. This had the obvious advantage of resolving such questions as a condition to proceeding with annexation instead of necessitating that annexation be undone where shown thereafter to be unreasonable. It did not change the substantive requirements. Plaintiffs' second contention is that in order to avoid a denial of equal protection the burden of proof in this action must be on Independence just as it is on cities bringing Sawyers Act cases. This argument is predicated on the assumption that in suits to determine the reasonableness and necessity of legislative action to annex, the burden of proof, referred to in § 71.015 and in previous annexation cases, has reference to a burden of persuasion that the preponderance of the evidence establishes reasonableness and necessity or the absence thereof. Actually, that is not what the term burden of proof means in these cases. This necessarily is true because the outcome of these cases does not depend on whether a city establishes by a preponderance of the evidence that annexation is reasonable and necessary or that citizens establish by a preponderance of the evidence that such annexance is unreasonable and unnecessary. There is not in these cases a burden of persuasion by a preponderance of evidence. Instead, the test is whether the evidence shows that the question of reasonableness and necessity of the annexation was fairly debatable. If it does, the legislative decision must stand. Therefore, when the suits to test reasonableness and necessity (both the Sawyers Act and the pre-Sawyers Act cases) speak of the burden of proof, they necessarily refer to a burden of proceeding with the evidence. The earlier cases have not analyzed the term burden of proof and have not articulated the fact that it really means the burden of proceeding with the evidence, but, as pointed out above, this necessarily is so and it henceforth should be so interpreted. 486 The ultimate test, regardless of which party brings the suit and has the burden of proceeding with the evidence, is whether the reasonableness and necessity of proposed annexation was fairly debatable. Under such circumstances there is no denial of equal protection in requiring citizens to institute suit attacking annexation by Constitutional charter cities and to proceed with the evidence therein. This issue is resolved against plaintiffs. Plaintiffs next assert that in deciding this appeal our review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and that under said decision we must affirm the decision of the trial court. We disagree. Murphy v. Carron governs appeals in court tried cases wherein the trial court has acted as the trier of fact. It does not apply when the trial court has reviewed the propriety of a decision by an administrative or by a legislative body. In the latter instance we examine the record to determine whether there is substantial evidence to support the legislative decision. If we determine therefrom as a matter of law that there is no substantial evidence to show that the annexation was reasonable and necessary, as the court did in City of Olivette v. Graeler, supra, then the annexation must be set aside. However, if the court concludes from the record that there is substantial evidence that the annexation was reasonable and necessary, then the issue was at least debatable and the legislative decision must be permitted to stand. We conclude and hold that there is substantial evidence that the decision of the Independence City Council to annex was reasonable and necessary. While there also was much evidence to the contrary, the issue was fairly debatable which means that we must sustain the legislative decision made by the City of Independence. This was a lengthy trial. Both sides called many witnesses and introduced a large number of exhibits. There are more than 1300 pages of testimony. It would serve no useful purpose to detail all of that evidence. It will suffice to refer briefly to some of the evidence which supports the decision made by the city council and makes the issues of reasonableness and necessity reasonably debatable. In 1940 the population of Independence was 16,066. Between that date and 1970 the city grew dramatically. In 1950 the population was 36,963, in 1960 it was 62,328 and in 1970 it was 111,662. There was evidence which indicated substantial future growth in population. The 1968 Comprehensive Plan for the City of Independence, introduced by plaintiffs as their Exhibit 17, disclosed that a 1966 study by Midwest Research Institute projected a population of 220,000 for Independence by 1990. Winford Winholtz, a city planning consultant called as a witness by plaintiffs, expected comparable growth. There also was evidence of some residential development in the area annexed prior to the vote thereon. Mayor King, and others, told of present and planned development of various areas. The council may consider the future as well as present needs of the city. City of St. Joseph v. Hankinson, supra, 312 S.W.2d at 18. There also was testimony of substantial commercial development. For example, Mayor King testified that there had been more such development in Independence during the preceding five years than there had been in the entire twenty-five years before that. One such project was the Independence Center which was described as the second largest shopping center of its type in the nation. That center, located in Independence was only a mile from some of the territory annexed as a result of the election in December, 1972. There was evidence of other planned commercial development in that area. Mayor King testified concerning the development of warehousing, some in the city as it existed before the 1972 annexation vote and some planned in annexed territory. Reference was made to a 400,000 square foot warehouse occupied by Hunt, Wesson Foods. A considerable warehousing development was being established in caves created by earlier underground mining of limestone. 487 Those areas were being prepared and utilized for extensive warehousing. There also was testimony of industrial development and of efforts to attract more industry. The Geospace Industrial Park was established for that purpose. Other developments of great significance in connection with industrial development, as well as growth generally, consisted of the formation of the Little Blue Sewer District and the establishment of a plan to control flooding in the Little Blue River Valley, joint projects of the federal government and Jackson County, with some local government participation. Little Blue Sewer District was created for the purpose of constructing a large common interceptor sewer which would serve the entire area from Cass County north through the Little Blue Valley, including eleven municipalities in eastern and southern Jackson County. It was designed to collect sewage from sewer systems of the various municipalities and carry it to a treatment plant to be constructed in the Atherton Bottoms near the point where the Little Blue River empties into the Missouri River. The project was designed to enable cities to have adequate sewer systems and to eliminate the dumping of insufficiently treated sewage into the river, thereby producing compliance with state and federal clean water and anti-pollution statutes. Construction of the sewer was commenced in Independence because that was where the need for service was greatest and because it was necessary, in order to sell revenue bonds for the project, to enlist Independence which had the best municipal bond rating. At the time of trial that portion of the interceptor sewer had been constructed and Independence and Blue Springs were utilizing it. For this Independence was paying more than $30,000 per month in fees. A temporary treatment plant to handle this sewage had been constructed pending completion of the interceptor sewer and construction of the treatment plant in the Atherton Bottoms. Completion of the system is scheduled for 1982. The river control project called for straightening and widening of the channel of the Little Blue River and for the construction of two lakes to impound flood waters. The project was designed to eliminate all except so-called 100 year floods, thereby making land in the flood plains usable, particularly for industrial development. As a part of this project there is to be an industrial expressway (Little Blue Valley Expressway) following generally the course of the river, and Jackson County will acquire lands adjacent to the river which will be utilized as a county park to be known as the Little Blue Trace Parkway. The federal government is to pay most of the cost of this project but local government is expected to bear certain expenses. For example, Independence will pay bridge costs over the relocated river channel at Truman Road and at R. D. Mize Road. Testimony indicated that much of the land in the flood plain of the Little Blue has not been usable because of the threat of flooding and because of lack of sewage facilities but that it could and would be utilized upon completion of the two projects. Mayor King testified that this would permit the city for the first time to have large tracts readily available for industrial development. To a limited extent land for such use would become available in the city as it existed prior to the 1972 annexations but to a much greater extent lands would be available for this purpose in the newly annexed area to the east. Additional evidence of the urban nature of the area consisted of testimony which disclosed that during this period of growth the value of vacant land has increased substantially. It exceeds the value the land would have for agricultural purposes, ranging from $2,000 per acre upwards to as much as $150,000 per acre in the area of Independence Center. Witnesses on behalf of Independence testified that Independence needed to annex the areas in question. This need to annex was based on expected growth in population and on industrial and commercial needs. It was their position that sufficient area for 488 these purposes was not available in the city as it existed at the time of the decision to annex and that the only direction in which Independence could expand is to the east and northeast where the five territories are located. Witnesses for Independence, particularly its director of planning, explained that annexation of these five territories is absolutely essential to Independence. In addition to meeting a need for additional land they are adjacent to Independence, are next to the Little Blue River Flood plain area in Independence which will be developing as a result of the sewer and channel control plans and what occurs there vitally affects Independence. The witnesses testified that if annexation does not occur at this time, the placement and construction of streets, sewage disposal systems and other public utilities will not be controlled. There is no provision for proper juncture of streets. If these are not properly constructed, future maintenance costs will be prohibitive after development has occurred. In addition, Jackson County has no building codes. Such codes provide for safety of construction of buildings and houses and these features will be missing in some of the construction which will take place in the areas in question if annexation does not occur. In response to plaintiffs' contention that Independence as it then existed had a high percentage of land classified as vacant, and hence did not need to annex, the witnesses pointed out that much of that so-called vacant land was not actually available to meet residential, commercial and industrial needs. Some was not usable because of steep grades or unacceptable terrain and some was in the flood plain. Some could not be used because underground mining for limestone was such that the surface would not support commercial or industrial construction. Some land was not available because the owners did not want to sell. Some owners are holding their land for future development. In addition, some of the land classified as vacant was not actually available unused vacant land. For example, land owned by an industrial or commercial plant in excess of the amount required to meet zoning requirements is counted as vacant rather than occupied land even though it is not available for use by others. To illustrate, Lipton Tea Company has a tract which is several times the area required by zoning laws for its plant and parking requirements. The tract is landscaped and held for possible future expansion by Lipton. However, in figuring vacant land the excess over that required by zoning for plant and parking was classified as vacant land, even though it is not available to others. Likewise, in the case of residential property, any excess over and above the 7200 square feet required by zoning laws for a single family dwelling is classified as vacant land even though it is utilized as a part of the residential tract. An example given was a tract on which the home of one of the attorneys in this case was located. It is large enough that eight homes, each with the required 7200 square feet, could be built thereon. Although the whole tract was landscaped and utilized as yard for the one house, all but 7200 square feet was classified as vacant. Finally, Mr. Bullard, the Independence Director of Planning, testified that intensity of use of its land area by Independence was almost exactly the same as the intensity of use by Kansas City of its land area. The foregoing constituted substantial evidence that Independence did not have sufficient vacant land to satisfy its needs. Plaintiffs also attack the annexation of Territory 1 as unnecessary and unreasonable because it consists largely of the United States government's Lake City Reservation where Remington Arms Company operates an arsenal for the government and therefore no municipal services could be furnished to it. They argue that the Reservation furnishes its own services. We overrule this contention. In the first place, such an annexation is permissible. Howard v. Commissioners of Louisville, 344 U.S. 624, 73 S. Ct. 465, 97 L. Ed. 617 (1953); Kansas City v. Querry, 511 S.W.2d 790 (Mo.1974). Furthermore, there was evidence that after the decision in State at inf. of Martin v. City of Independence, supra, officials at the Lake City Reservation conferred with Independence officials concerning availability of 489 city supportive services, utilities and public safety. Mayor King testified that they had met to begin preliminary arrangements for the provision of those services. The United States did not seek to intervene or to oppose the annexation. In view of our decision that the city's legislative decision to annex is to be sustained, we need not and do not reach other questions raised by the City of Independence attacking the right of plaintiffs to maintain this action. Likewise, it is not necessary to consider plaintiffs' cross-appeal wherein they contended that the trial court should have held the annexations void rather than voidable. That question is moot. We hold that the evidence shows that the reasonableness of and necessity for the legislative decision by the City Council of Independence to annex the five territories was at least fairly debatable. Accordingly, we hold that the annexations were valid. The judgment of the trial court is reversed. BARDGETT, C. J., and DONNELLY, RENDLEN, SEILER and MORGAN, JJ., concur. HIGGINS and WELLIVER, JJ., not participating because not members of the court when cause was submitted. NOTES [1] All statutory references are to RSMo 1969 unless otherwise indicated. [2] The court recognized that § 71.870 is valid and that it requires that charter cities in first class chartered counties hold simultaneous separate elections in the annexing city and in the area to be annexed. It did not apply to the December 5, 1972, elections by the City of Independence because Jackson County would not become a first class chartered county until January 1, 1973.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510262/	160 F.2d 527 (1947) SKIDMORE et al. v. JOHN J. CASALE, Inc. MOONEY et al. v. JOHN J. CASALE, Inc. No. 167, Docket 20465. Circuit Court of Appeals, Second Circuit. March 6, 1947. Writ of Certiorari Denied April 28, 1947. 528 Before LEARNED HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges. Writ of Certiorari Denied April 28, 1947. See 67 S. Ct. 1205. The defendant, John J. Casale, Inc., is engaged in the business of leasing motor-trucks for haulage to business concerns in and about New York City. Rentals for the trucks include the cost of maintaining and repairing them, and storing them, when not in use, in garages owned and operated by the defendant. Plaintiffs, with the exception of Olton, who worked as a porter in one of the garages (and Johnson, who was non-suited below and who has not appealed), performed various duties requisite to the maintaining and repairing of the trucks at the seven garages owned by the defendant. They may be categorized as maintenance men, mechanics and mechanics' helpers. Customarily, the trucks were driven by the employees of the lessees. It was assumed for the purpose of this case that defendant is not a carrier of any kind. The district court found that defendant's trucks were used by a number of its customers in haulage of commodities in interstate or foreign commerce, to a substantial extent both in terms of mileage and dollar amount and quantity of such goods. It found that this use was regular and recurrent and not sporadic. A pretrial stipulation covering two (subsequently extended to include three) of defendant's garages stated that 15 to 25% of the use of trucks serviced and kept at these garages was use in interstate commerce; evidence was produced at the trial in support of that stipulation. As to three of the garages not covered by the stipulation, the trial judge was satisfied that the evidence presented warranted a finding that the overall interstate use of defendant's trucks proceeding from those garages was substantial. He made no specific finding as to the percentage of use in interstate commerce, but pointed out that a 1941 investigation by defendant's officers had indicated that the amount of interstate use of its trucks was approximately 23%. The evidence as to the trucks housed in the seventh garage, located at 107th Street was extremely meagre. However, there was testimony concerning at least one of the trucks kept there, that leased by the Dannemiller Coffee Company; it appears that it was used at fairly regular intervals to make pickups of coffee at piers, and at times to deliver shipments to railway and steamship terminals for shipment in interstate commerce. This amounted to 10% more or less of its overall use by the Dannemiller Company. Despite this testimony, the trial judge found that no evidence had been offered concerning the trucks housed in the 107th Street garage, and dismissed the complaint as to plaintiff, Dodson, who worked there. 529 No evidence was introduced to show any division of labor as between trucks used in interstate commerce and those not so used. Nor was there any analysis made of the amount of time that each man spent on trucks used in interstate shipments. The trial judge found that each of the trucks was returned regularly to its garage and was serviced daily by defendant's employees at that garage. Some of the work necessary to keep the trucks in condition was done each night, the rest regularly and recurrently. "The work on the trucks used in interstate commerce was not sporadic. It was constant and steady." The trial judge concluded that all the plaintiffs, with the exception of Olton, Johnson and Dodson, were engaged in interstate commerce within the meaning of the Fair Labor Standards Act, and entered judgment accordingly for unpaid overtime compensation and liquidated damages in the amount of $18,630.40. Plaintiff Jordan's recovery was limited to exclude the period during which he was employed at the 107th Street garage. Plaintiffs were also awarded an additional sum of $7,000 as a reasonable attorney's fee in the action. In awarding the attorney's fee, the district court did not take into consideration a contract between the plaintiffs and their attorneys, which provided that the attorneys should be paid one-third of any recovery plus any attorney's fee that should be awarded. The defendant Casale has appealed generally from plaintiffs' recoveries. Cross-appeals have been taken by plaintiffs Olton and Dodson from the non-suit as to each of them, by Jordan in so far as his recovery was limited, and by all plaintiffs from the judgment fixing the attorney's fees at $7,000. The opinion of the district court is reported in 66 F. Supp. 282. H. R. Korey, of New York City (Emanuel Tacker, of New York City, of counsel), for appellees. Charles E. Cotterill, of New York City (Irwin D. Davidson, of New York City, of counsel), for appellant. FRANK, Circuit Judge. 1. The first question is whether the court below was correct in its conclusion that the successful plaintiffs in this action were engaged in interstate commerce within the meaning of the Fair Labor Standards Act. Section 7 of the Act, 29 U.S.C.A. § 207, provides that overtime compensation must be given by an employer to "any of his employees who is engaged in commerce or in the production of goods for commerce." As it is conceded that the plaintiff-employees are not engaged in the production of goods, we limit our inquiry to the scope of the words "engaged in commerce." Defendant argues that its employees could not reasonably be said to be engaged in commerce, since defendant itself is not. To answer this contention we must review the recent Supreme Court cases dealing with the matter. In Overstreet v. North Shore Corp., 318 U.S. 125, 63 S. Ct. 494, 87 L. Ed. 656, the employer, a private corporation, owned and operated a tollbridge, located wholly within the State of Florida, which accommodated a substantial amount of interstate traffic. The employees in question maintained and operated the bridge. The court found that their work on an "instrumentality of interstate commerce" was so closely related to the interstate movement that they were "employed in commerce." It went on to say (318 U.S. p. 132, 63 S. Ct. 494, 499), that it was immaterial whether or not the corporation itself might be said to be engaged in commerce, since the nature of the employees' activities, not that of the employer, is the determinative factor. See also Walling v. Jacksonville Paper Co., 317 U.S. 564, 571, 63 S. Ct. 332, 87 L. Ed. 460; Pedersen v. J. F. Fitzgerald Construction Co., 318 U.S. 740, 742, 63 S. Ct. 558, 87 L. Ed. 1119; McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 87 L. Ed. 1538. The recent decision in Boutell v. Walling, 327 U.S. 463, 66 S. Ct. 631, is most closely analogous to the instant case. The employees of the Boutell Service Company were employed at a large garage where they were engaged in the servicing of transportation equipment used exclusively in interstate commerce. The only essential distinction between the Boutell case and the instant case is the amount of work done on vehicles travelling in interstate commerce. But in Walling v. 530 Jacksonville Paper Co. it was said (317 U. S. at pages 571, 572, 63 S. Ct. 337), "If a substantial[1] part of an employee's activities related to goods whose movement in the channels of interstate commerce was established by the test we have described, he is covered by the Act." It follows, we think, that the distinction between "all" and a "substantial amount" is of no importance, and that therefore the holding in the Boutell case that the employees were "engaged in commerce," though their employer was not so engaged, is decisive here. This does not mean that all the employees at the defendant's garages are within the protection of the Act. In the Boutell case there was no question as to the amount of work done on vehicles used in interstate commerce; here it is apparent that not all the work done was work on trucks used interstate. The language quoted above from Walling v. Jacksonville Paper Co. seems to us to require that a substantial amount of the work of each employee must be related to interstate commerce. In Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S. Ct. 511, it was held that the shipment of one-tenth of 1% of the output of a newspaper publisher was sufficient to justify the classification of the publisher-employer as a producer of goods for commerce. The Court then pointed out (pp. 184, 185) that it was still necessary to have a finding as to whether the individual employees were actually engaged in the production of goods for commerce, citing the passage from Walling v. Jacksonville Paper Co. which we have quoted above. From this it would appear that while a minimal amount of production for shipment interstate will suffice for the purpose of classifying the employer, nevertheless it must be shown that the work of the individual employee which relates to that minimal amount forms a substantial amount of all the work done by that employee. In the instant case, where there is no showing that the work on trucks used interstate was segregated from work done on trucks not so used, it is necessary to determine whether the trucks were substantially used interstate in order to determine whether a substantial portion of the individual employee's time was related to interstate commerce. As to all the garages except the 107th Street garage, the trial judge found that the interstate use of the trucks there housed was substantial. We think that the evidence justified the finding. Appellant argues that substantial use means at least 20% of the aggregate. We do not agree. Nothing in the Act requires any such percentage. The cases[2] which applied the Administrator's standard of 20% for determining whether a substantial portion of any building is devoted to production for interstate commerce are not pertinent here. There was no evidence that the work on the trucks used in interstate commerce was separate from that on trucks used only intrastate, and it appears that all the employees worked on all the trucks housed at the garages in which they were employed. The trial judge found that the work on these trucks was constant and not sporadic; and it was proper for him to infer, as he did, that each of the employees spent a substantial amount of time on trucks used in interstate commerce. Guess v. Montague, 4 Cir., 140 F.2d 500, 504; Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331. True, Walling v. Jacksonville Paper Co. (supra) gives no definition of "substantial" in this context; but we think it is the converse of "insubstantial" or "unimportant." Cf. Mid-Continent Petroleum Corp. v. Keen, 8 Cir., 157 F.2d 310, 316, in which one-half hour a week was held to be "substantial," and Southern Cal. Freight Lines v. McKeown, 9 Cir., 148 F.2d 890, cert. den. 326 U.S. 736, 66 S. Ct. 48, in which 7% of the employee's activities was held "substantial." The trial judge made no finding as to the amount of work done on vehicles used in interstate commerce by those of the plaintiffs employed at the 107th Street garage. Any such finding was precluded by his mistaken understanding that no evidence 531 had been offered as to any interstate use of trucks kept at that garage. Since the record contains evidence indicating that there was some such use, we must reverse and remand for a finding as to the extent of that use, and whether it was sufficient to bring the employees who worked at that garage within the Act. The suit was properly dismissed as to Olton, the porter, who took care of the washrooms and lockers in one of the garages. An employee is engaged in interstate commerce if his activities are "so intimately related to interstate commerce `as to be in practice and in legal contemplation a part of it'"; Overstreet v. Northshore Corp., supra, 318 U.S. at page 130, 63 S.Ct. at page 498. In McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 87 L. Ed. 1538, it was held that a cook, working for an independent contractor who had contracted to feed the maintenance of way employees of an interstate railroad, was not so closely connected with interstate commerce as to come within the test set out above. We do not see that a porter working in a garage where interstate vehicles are serviced is any less remote from interstate commerce than was the plaintiff in McLeod v. Threlkeld.[3] The only remaining question is the reasonableness of the attorney's fee. We have considerable doubt as to the validity of the contingent fee agreement; for it may well be that Congress intended that an employee's recovery should be net, and that therefore the lawyer's compensation should come solely from the employer. But that question is not before us. The question here is whether the amount exacted from the employer is reasonable; the employer has no concern with the fee-relations between the employees and their counsel. We think the award of $7,000 was reasonable. Reversed and remanded as to the 107th Street garage and those of the plaintiffs affected thereby; otherwise affirmed. Affirmed in part; reversed and remanded in part. L. HAND, Circuit Judge (concurring). Were it not for the passage relied upon by my brothers from Walling v. Jacksonville Paper Co.,[1] I should have said that, as soon as an employee was shown to be "engaged in interstate commerce" to any extent whatever, he was entitled to the protection of the Act. In that regard I should distinguish between him and an employee who was "engaged in the production of goods for commerce"; the second has a remoter relation to "commerce" than the first, and it is reasonable to require of him the devotion of more of his time to "commerce." But, once an employee was proved to be "engaged in commerce," I should have thought that the case ended. For that I should particularly rely upon Mabee v. White Plains Publishing Co.,[2] a fortiori because that decision concerned whether an employer was "engaged in the production of goods for commerce." And I am left still more in doubt, because the passage on which we are relying did not relate to the real issue which the court was deciding in Walling v. Jacksonville Paper Co., supra,[3] but was thrown out in passing. Nevertheless, the qualification, "substantial," was mentioned as though the law was already so settled, and although the supporting citation was a decision[4] touching the "production of goods for commerce" and not engagement "in interstate commerce," I do not feel free to disregard it. Therefore, as to the 107th Street Garage I yield my own judgment and join in sending back the case as to the employee there employed. NOTES [1] Emphasis added. [2] Callus v. 10 East 40th St. Building, Inc., 2 Cir., 146 F.2d 438; Fleming v. Post, 2 Cir., 146 F.2d 441, 158 A.L.R. 1384. [3] Mornford v. Andrews, 5 Cir., 151 F.2d 511 is not in point. There the plaintiff was a porter in a bus terminal, which was itself an "instrumentality of commerce." [1] 317 U.S. 564, 571, 572, 63 S. Ct. 332, 87 L. Ed. 460. [2] 327 U.S. 178, 66 S. Ct. 511. [3] 317 U.S. 564, 63 S. Ct. 332, 87 L. Ed. 460. [4] Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S. Ct. 1116, 86 L. Ed. 1638.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510269/	588 S.W.2d 270 (1979) William M. LEECH, Jr., the Attorney General, et al., Appellants, v. WAYNE COUNTY et al., Appellees. Supreme Court of Tennessee. September 24, 1979. Rehearing Denied October 22, 1979. William M. Leech, Atty. Gen. in pro. per., Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for appellants. George G. Gray, Charles J. Barnett, Waynesboro, for appellees. OPINION HARBISON, Justice. This case involves the constitutionality of certain provisions of Chapter 934 of the 271 Public Acts of 1978, providing for the restructure of county governments. Under the terms of the act, in Wayne County a county executive was to be elected in 1978, but the county judge remained in office for the remainder of his term for the purpose of performing judicial duties. Thereafter these duties were to be transferred to the county executive. Also, the county legislative body was subjected to special statutory restrictions not imposed upon such bodies generally. The trial judge held all of the special provisions of the 1978 act applicable to Wayne County invalid and impermissible class legislation under Article XI, § 8 of the state constitution. In the case of Waters v. State ex rel. Schmutzer, 583 S.W.2d 756 (Tenn. 1979), the Court considered some of the provisions of this statute which are involved in the present litigation, particularly those conferring judicial authority upon the county executive. In the Waters case the provisions of Chapter 934 of the Public Acts of 1978 purporting to transfer the judicial functions of the county judge or county chairman to the county executive were held to violate Article VI, § 4 of the state constitution. For that reason, a significant part of the structure or plan for county government contained in the 1978 statute cannot and will not be implemented. With some exceptions, the legislation contemplated the election in 1978 of a county executive in those counties which had formerly had a county chairman, county administrator or county manager as the chief executive or fiscal officer. There were some nineteen of these counties. Seventy-four counties, prior to the 1978 legislation, had incumbent county judges, many of whose terms of office did not expire until 1982. In some of these, however, the county judge had been divested of judicial duties by private acts and the term of office reduced to four years. The 1978 legislation permitted most of the county judges, except in some of the larger counties and except in Wayne and Roane Counties, to remain in office until the expiration of their terms, performing both judicial and executive, or fiscal, duties. In Wayne and Roane Counties, a county executive was to be elected in 1978, as in those counties formerly having county chairmen, but judicial functions were not conferred upon the county executive and were not to be transferred until 1982 or until the death or resignation of the county judge. In most of the other counties having a county judge, judicial functions were to be transferred to the county executive in 1982, or sooner in the event of the death, resignation or removal from office of a county judge. As a result of the holding of this Court in the Waters case, the provisions of the 1978 legislation respecting the transfer of judicial functions have been invalidated. The decision in that case does not affect the legislative plan to have county executives elected in most of the counties, but it does require that a separate or special provision be made for the judicial functions of the county-paid judge or judges holding the juvenile and/or monthly county courts in all counties where county executives were given judicial duties either in 1978 or in future years. In effect, unless the legislature revises the entire scheme, after Waters there will have to be separate officials in each county, one or more performing judicial functions and another those of the county executive. This is what the legislature has already provided in Roane and Wayne Counties in the 1978 Act. According to the 1970 census Wayne County had a population of 12,365 and Roane County 38,881. In or before August 1978 county executives were elected in twenty-four counties. In six of these, other than Wayne and Roane Counties, there formerly had been county judges. These six counties and their respective populations are: Giles 22,138 Hamilton 255,077 Overton 14,866 Rutherford 59,428 Sevier 28,241 Van Buren 3,758 272 In the following counties, county executives were chosen to replace former county chairmen, administrators or managers. Population figures are from the 1970 census. Anderson 60,300 Cannon 8,467 Chester 9,927 Cocke 25,283 Crockett 14,402 Dyer 30,426 Fayette 22,692 Hamblen 38,696 Jefferson 24,940 Johnson 11,569 Meigs 5,219 Moore 3,568 Putnam 35,487 Rhea 17,202 Unicoi 15,254 Washington 73,924 White 16,329 The foregoing tables do not include Wayne and Roane Counties where county executives were called for in 1978 to replace the county judge except for judicial duties. An election was held in Wayne County, but has not yet been held in Roane. It is apparent that, pursuant to the 1978 legislation, many counties having approximately the same populations as Wayne and Roane were required to elect county executives to replace their former chief county officers. It is also apparent that in those counties where judicial duties were transferred to the county executive, there will have to be special provisions made by the local legislative bodies to choose someone else to perform those duties, pursuant to the Waters decision, until remedial legislation is provided. Accordingly, Wayne and Roane Counties are not alone in having a county executive without judicial duties, nor are they treated differently by the 1978 legislation from many other counties close to them in size and population. The statutory provisions pertaining to Wayne and Roane Counties, insofar as they affect the county judge and the county executive, are part of a transitional plan made necessary by recent constitutional changes. In our opinion, they are not part of any general, mandatory uniform scheme of county government. Rather, these two counties were classed with twenty-three other counties having a county chairman, a similar chief officer or outgoing county judge. The net effect of the 1978 legislation was that twenty-four county executives had been elected by August 1978 and some sixty-nine others will be elected in 1982 or sooner in the event of a vacancy in the office of county judge. The General Assembly has very broad powers and discretion with respect to the structure of local governments, including some special authority which was added in Article VII of the state constitution, as revised in 1978. That Article, in part, provides: "The General Assembly may provide alternate forms of county government including the right to charter and the manner by which a referendum may be called. The new form of government shall replace the existing form if approved by a majority of the voters in the referendum." (Emphasis added). It is apparent that the constitution does not mandate a uniform structure of county governments across the state. It specifically authorizes legislation creating different forms of local organization. In our opinion Chapter 934 of the Public Acts of 1978, particularly after the Waters decision, does not involve the creation of rigid patterns or norms. The General Assembly did move toward more uniformity than previously existed, but the statute contains numerous special provisions affecting local government in particular counties. It apparently sought to achieve some uniformity by 1982, but not immediately. Only transitional features of the legislation are involved with respect to the Wayne and Roane County executives. In T.C.A. § 5-551 there are a number of special provisions concerning forms of government previously established by private acts. These provide, among other things, that in McMinn County, having a 273 county manager form of government, the General Assembly shall establish an alternate form of county government which by referendum shall be submitted to the qualified voters. Incumbent members of the legislative body, however, shall remain in office until 1982 or until the alternate form of government is established. If an alternate form of government is not established prior to January 1, 1982, then the county government shall be determined in accordance with the more general provisions of Chapters 1, 5 and 6, Title 5, Tennessee Code Annotated. It is apparent that the General Assembly did not intend for McMinn County, initially at any rate, to be embraced within the more general scheme provided in other parts of the 1978 statute. It had had a county manager form of government previously, but it is not treated in the act like other counties having that form of government or other counties with similar populations. There are also special provisions for the transitional governments of Knox and Polk[] Counties, while Shelby and Davidson Counties are generally excepted from the provisions of the 1978 legislation. With respect to county executives, as treated in Chapter 6 of Title 5, little, if any, general scheme or uniform structure appears, insofar as their compensation is concerned. These officials are to be selected in nearly all of the counties in the years between 1978 and 1982. The County executive as financial agent is given a minimum salary in T.C.A. § 5-613, but a large number of local variations, by population bracket, are appended thereto. In our opinion, the 1978 statutes, insofar as they involve the county judge and county executive of Wayne County, are not violative of Article XI, § 8 of the state constitution. In order for the provisions of that Article to come into play, an act which is either local or local in effect must contravene some general law which has mandatory statewide application. See Rector v. Griffith, 563 S.W.2d 899 (Tenn. 1978). In view of the transitional nature of the statutory provisions regarding the county executive and the county judge, together with the invalidation in the Waters case of significant portions of the governmental structure created by the 1978 statute, we are of the opinion that an invidious discrimination violative of Article XI, § 8 of the state constitution has not been demonstrated with respect to the county executive and county judge of Wayne County. It must be remembered that the 1978 statute was a restructuring act for county governments, enacted to effectuate changes made in the state constitution in 1978. It was necessary that there be, in many instances, special temporary provisions made in a number of counties, and we do not find that the provisions here under consideration violate any general mandatory statewide scheme existing prior to the 1978 legislation or created within it. The trial judge erred in holding to the contrary. A somewhat different problem is presented by the provisions of the 1978 statute relating to the legislative body of Wayne County. As directed by new constitutional provisions in Article VII, the act created a county legislative body as the basic legislative unit in each county of the state, except in counties having metropolitan governments. Such a legislative body was to be created in every other county of the state, effective September 1, 1978, except for counties specially provided for in T.C.A. § 5-551 and in counties organized under the consolidated government provisions of Article XI, § 9.[1] T.C.A. § 5-502 provides generally for the county legislative body in all of the counties except those few not governed by it. It provides for the composition, the number of districts, the qualification of members, their terms of office and the date of their election. 274 In each county the legislative body is given discretionary authority "to determine whether each office in multi-member districts will be separately designated on the ballot with candidates required to run and to be elected on the basis of separately designated offices within the district." There is, however, a proviso which purports to except from the provision just quoted two counties by population bracket, one of these being Wayne County. In Wayne County the statute requires that "each office in multi-member districts shall be separately designated on the ballot, and candidates shall run and be elected on the basis of such separately designated offices within the district."[2] This special provision resulted from an amendment sponsored by the Wayne County representative in the House of Representatives. The trial judge held that this separate provision violated Article XI, § 8 of the state constitution. While a strong argument can be made in support of this conclusion, in view of the broad powers which the General Assembly has with reference to the structure of local governments and their agencies, we are reluctant to rest our decision on that provision of the state constitution nor do we find it necessary to do so. In all likelihood the General Assembly could, by local act, adopt such a provision as to a particular county. The powers which the General Assembly previously possessed respecting local governments were reinforced and strengthened as to county governments by the 1978 amendment to Article VII of the state constitution. That article, however, did not repeal or modify those provisions of Article XI, § 9 popularly known as the "Home Rule" provisions, which, insofar as pertinent here, are as follows: "... any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected." Indeed, Article VII itself contemplates referenda when particular "alternate" forms of county government are proposed by the General Assembly. In our opinion, the home rule provisions of Article XI, § 9 and the referendum requirements of Article VII would not be applicable to the general statewide restructuring provisions in the 1978 legislation, made necessary by recent constitutional amendments. Where, however, the General Assembly has made a permanent, general provision, applicable in nearly ninety of the counties, giving the local legislative bodies discretion as to the method of election of their members, we do not think it could properly make different provisions in two of the counties, by population bracket, in the manner attempted here. Insofar as Wayne County is concerned, this amounted to nothing more than a private act relating to the composition of its county legislative body, without any statement of reasons and without requirement of a local referendum. In our opinion, neither Article VII nor Article XI, § 9 authorizes this type of legislation, nor can it be justified as being a transitional part of a general restructuring scheme. Accordingly, the judgment of the trial court is affirmed insofar as it held unconstitutional the provisions of T.C.A. § 5-502 relative to Wayne County. The cause is remanded to the trial court for further proceedings consistent herewith. Costs incident to the appeal will be taxed one-half to appellants and one-half to appellees; costs in the trial court will be adjudged there. BROCK, C.J., and COOPER, J., concur. HENRY and FONES, JJ., dissent. 275 HENRY, Justice. I respectfully dissent from the majority opinion. While other and lesser questions lurk in the record, the principle issue is whether a county constitutionally may be exempted from the application of a significant provision of a general law applicable to all other counties similarly situated, by the use of a population bracket exception, absent a rational basis for the exemption. I. Constitutional Background Article VII, Section 1 of the Constitution of 1870 enumerated the various county officers and Section 2 determined the proper method for filling vacancies. Its provisions were somewhat meager; it was silent on the structure of county government. The Constitutional Convention of 1977 extensively rewrote these sections and provided a general framework for the government of Tennessee counties. A wholly new office of county executive was created and, in place of the quarterly court, the new constitution provides for a legislative body. In pertinent part, Article VII, Section 1, now provides: The legislative body shall be composed of representatives from districts in the county as drawn by the county legislative body pursuant to statutes enacted by the General Assembly. There follows a provision for decennial reapportionment and an exemption in favor of counties organized under Article XI, Section 9 of the State Constitution. The ensuing paragraphs provide a method for the selection of alternate forms of county government and a prohibition against the diminution of an officeholder's term as a result of the adoption of the article. It was evident that legislative action was required to give vitality to these skeletal provisions. The legislature responded with a carefully considered and comprehensive plan of implementation, to wit: Chapter 934 of the Public Acts of 1978, which appears in the Official Code as Chapters 5 and 6 of Title 5 (Section 5-501, et seq., and Section 5-601, et seq.) II. The Implemental Legislation The Legislature was faced with a two-fold problem. First, it had to provide the specifics of the new basic structure for county government in Tennessee. Secondly, it had to provide an orderly method of transition. After recognizing the "complexity" of county government in Tennessee, the necessity for its "continuity," the constitutional considerations involved, and the myriad problems posed by the provisions of general and private acts establishing the duties and responsibilities of such officeholders, the Legislature declared that these considerations: dictate a transition in county government in which the smaller counties continue the incumbent county judge for the remainder of his term as the chief executive officer of such counties to exercise the authority and duties for which they were elected. (Emphasis supplied) 1978 Public Acts, Ch. 934, § 42. Further, the Legislature declared: It is the intention of the General Assembly by this act to create a uniform system of county government by the establishment of the county legislative body and the office of county executive as the basic units of government, while providing a reasonable period of transition for certain counties to avoid the disruptive effects of rapid change in their government. (Emphasis supplied) Id. Thus, the stated intention of the Legislature and the declared public policy is that the county judges of the smaller counties, for the remainder of their terms, perform the duties of county executives and that there be a uniform system of county government with an orderly period of transition. 276 It must be borne in mind that there is no constitutional requirement that all Tennessee counties be dealt with in precisely the same manner. Our Constitution is satisfied when all counties similarly situated are treated uniformly. When a county is exempted from the general law the exemption must have a rational basis. Section III, infra. Our Constitution specifically permits the General Assembly to "provide alternative forms of County Government." From the beginning of Tennessee time our courts have recognized this right. This provision adds nothing to existing law; it merely constitutionalizes formally and explicitly that which formerly rested on decisional law. This is not the question. The Legislature, by this Act, has established the same form of government in all counties of Tennessee except those having a metropolitan government. Sections 5-501 and 5-601, T.C.A. It contains transitional provisions for McMinn (County Manager), Knox (Commissioners), and Polk[] (County Council) counties. Section 5-551, T.C.A. The nature of a metropolitan government and its similarity to the form of government created by Chapter 934 of the Public Acts of 1978 make the exceptions reasonable and the reasons therefor apparent. The transitional provisions for McMinn, Knox, and Hamilton counties show facially that they are in harmony with the stated purposes of the Act and are rationally based. It is important to remember that Chapter 934 does not exempt Wayne County from the form of government created by the Act; it is exempted solely from Section 5-602 governing the date of the election of the County Executive and the commencement of his term, and from Section 5-502 relating to the designation on the ballot of candidates for the legislative body in multi-member districts. The majority opinion is premised to a substantial extent upon the proposition that the Act does not adopt a "general mandatory statewide scheme." This is precisely what the Act does; but the majority wholly fails to recognize the critical distinction between the form of government on the one hand, and the mechanics of its inauguration on the other. With this prelude we examine the Act. Three sections of the statute present troublesome issues which are critical to this controversy. Section 8, codified as a portion of Sec. 5-502, T.C.A., relates to the county legislative body. It governs composition, the number of districts, the qualification of members, their terms of office, the date of their election, and officially designates the legislative body as the Board of County Commissioners. The body is clothed with the discretion "to determine whether each office in multi-member districts will be separately designated on the ballot with candidates required to run and to be elected on the basis of such separately designated offices within the district." But, there is a proviso, which forms a substantial part of this lawsuit: Provided, however, that in any county having a population of not less than 12,350 nor more than 12,400 according to the 1970 federal census or any subsequent federal census, each office in multi-member districts shall be separately designated on the ballot, and candidates shall run and be elected on the basis of such separately designated offices within the district.[1] This exception applies only to Wayne County, which had a population of 12,365 persons under the census of 1970, and is the only county within the stated population bracket. The situation would be precisely the same had Wayne County appeared by name. 277 This proviso was incorporated in the bill as a result of an amendment presented by Representative Davidson of Wayne County. (Amendment 23, 1978 House Journal at 3515-3516). The Senate concurred. (Amendment 23, 1978 Senate Journal at 2919-2920). Section 16 of the Public Act, codified as Sec. 5-601 through Sec. 5-603, relates to the county executive. It is provided that in Class I counties,[2] Class 2 counties having a county coucil form of county government,[3]"counties having a population of not less than 12,350 nor more than 12,375 or not less than 38,800 nor more than 38,900 by the federal census of 1970 or any subsequent federal census,"[4] and those having a chairman of the county court,[5] "the county executive shall be elected in the regular August election in 1978 and every four (4) years thereafter." Sec. 5-602(1), T.C.A. Again, the emphasized language identifies Wayne County. This language came by amendment proposed in the House, (Amendment 8, 1978 House Journal at 3508) and concurred in by the Senate. (Amendment 8, 1978 Senate Journal at 2915). Except for these counties, Section 16(b)(2) provides that: in counties having an incumbent county judge elected in 1974 for a term of eight (8) years, the incumbent county judge shall serve as county executive until the regular August Election in 1982, at which time, and every four years thereafter, a county executive shall be elected. Sec. 5-602(2), T.C.A. The final subsection of 5-602 is a catchall provision covering county judges with a four year term of office and counties with administrators or managers: In all other counties, the county executive shall be elected in the regular August election in 1978 and every four (4) years thereafter. Sec. 5-602(3), T.C.A. It is stipulated, and is a verified fact, that there are 69 counties "which now have County Judges, exercising Judicial and Administrative functions, and as in Wayne County, they were elected in 1974 and their terms do not expire until 1982." Therefore, the result of this Act is that Wayne County, one of the "smaller" counties of the State[6] and Roane County[7] are the only two counties in the State having county judges that are required to have both a county judge and a county executive for the four year period beginning September 1, 1978 and ending August 31, 1982. And this by virtue of a population bracket exception to a general law designed to be uniform and in the face of legislatively declared public policy that in "smaller counties the county judge serve out the remainder of his term before a county executive is elected. Wayne County is also excepted by population bracket from Section 17 of the Act, (Sec. 5-606, T.C.A.) which vests the county executive with all the judicial authority formerly exercised by the county judge, or an official exercising similar powers. Although this portion of the Act was declared to be unconstitutional by this Court in Waters v. State of Tennessee, ex rel. Schmutzer, 583 S.W.2d 756 (Tenn. 1979), it has no effect on the issues involved in this controversy. 278 The majority seeks to bolster its conclusion by the citation of various county compilations. All are based upon the erroneous premise that we are presented with a question as to the constitutionality of a legislative enactment creating a form of county government. We are not; Wayne County is not exempted from the form of government established by the Act. At first blush these compilations are persuasive; upon analysis they are not pertinent. The first compilation lists six (6) counties in which county executives were elected in August 1978, where "there formerly had been county judges." This statement is true, as far as it goes. We look to the enumerated counties. 1. Giles County. By Chapter 158, Private Acts of 1973, the judicial duties of the county judge were transferred to the General Sessions Court, and his term of office was reduced to four years. As a result of Chapter 934, Giles County elected a county executive in 1978 when the county judge's term of office expired. 2. Hamilton County. Chapter 934 converted its county council to the county legislative body. Transitional provisions are properly contained in the Act for this metropolitan (not one of the "smaller" counties) county. The Act had no immediate effect on this county. 3. Overton County. By Chapter 228, Private Acts of 1974, the office of county judge was abolished and the judicial functions transferred to the General Sessions Court. The county judge was replaced by a county manager with a four (4) year term. Subsequently, Chapter 16 of the Private Acts of 1975 changed the title of the office to county judge. When his term of office expired in 1978, a county executive was elected pursuant to Chapter 934. 4. Rutherford County. As in Giles and Overton Counties, the judicial functions of the county judge were vested in the General Sessions Court by Chapter 187 of the Private Acts of 1974. The county judge's term of office was reduced to four (4) years, and upon expiration of the office in 1978, a county executive was elected under Chapter 934. 5. Sevier County. Upon the death of the county judge in 1978, the office was filled by a temporary appointment. Pursuant to Section 16(c) of Chapter 934, the vacancy was filled by the election of a county executive in the 1978 election. 6. Van Buren County. The incumbent county judge of Van Buren County resigned in 1977. A temporary appointment was made to fill the office until 1978, at which time a county executive was elected under the provisions of Chapter 934. None of these counties was required to elect a county executive under Chapter 934 and continue in office a county judge. None was excepted from its application, except to the extent of the transitional provisions of the Act. Hence, this compilation is meaningless; there is no analogy to Wayne County. It is next asserted by the majority that in seventeen (17) listed counties,[8] county chairmen, administrators, or managers were replaced by county executives. The inclusion of these smaller counties with those required to elect in 1978 rests upon a rational basis, because in each case the term of the chief executive officer expired that year. Thus, a rational basis exists for the four metropolitan counties and for those counties having a county chairman or other officer whose term expired in 1978. The majority opinion, in reference to Roane and Wayne counties, asserts: these two counties were classed with twenty-three other counties having a county chairman, a similar chief officer or outgoing county judge. This simply is not an accurate statement. Wayne County did not have a county chairman, a similar chief officer, or an outgoing judge. It had a county judge whose term of office did not expire until 1982 as in 69 other counties. In the absence of a stated 279 or discernible rational basis for distinguishing Wayne County from the other 69 similarly situated counties, the classification is unconstitutional. The rational and uniform scheme of the Act is that in those counties where the chief executive officer's term expires in 1978, an election is conducted in 1978. In all other counties, where the incumbent judge's office does not expire until 1982, an election is conducted that year. This comports with the mandate of Art. 7, Sec. 1, of the State Constitution that "[n]o officeholder's current term shall be diminished" as a result of this article.[9] Moreover the Act so provides. Chapter 934, Section 37. This is the theme and theory of the Act. It is the Legislature's way of abiding the Constitution. Providing for the election of a county executive in Wayne County in 1978, prior to the expiration of the incumbent county judge's term of office, is a clear departure from the pattern of transition and the stated intention of the Act. The practical effect of the Act is to require Wayne County to continue to have a county judge exercising judicial functions, and simultaneously to have a county executive performing the non-judicial duties imposed by the Act. The fortuitous circumstance that Waters, supra, operates to make this scheme of practical utility is of no consequence to the determination of the issue at hand. III. Tennessee Constitutional Considerations I examine the questioned portions of the implementing statute in light of pertinent provisions of the Constitution of Tennessee. Article I, Section 8 That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land. Article XI, Section 8 (in pertinent part) The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law. (Emphasis supplied) The "law of the land" clauses of these two sections are substantially equivalent to those contained in the "due process" and "equal protection" clauses of the federal constitution. Motlow v. State, 125 Tenn. 547, 590, 145 S.W. 177 (1911). As a general rule, that which violates the one would also violate the other. Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618 (1892). It is settled law that a special act affecting a county in its governmental capacity is valid so long as it does not contravene the general law. Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454 (Tenn. 1973); Donathan v. McMinn County, 187 Tenn. 220, 213 S.W.2d 173 (1948). Numerous cases draw a distinction between special or private acts affecting a county in its governmental capacity when there is no general statute, and those attempting to impose liabilities or create exemptions not sanctioned by the general law. An often quoted and correct statement of applicable general principles will be found in Sandford v. Pearson, 190 Tenn. 652, 231 S.W.2d 336 (1950), wherein Justice Gailor, writing for the Court, said: Our cases make a clear distinction between (1) Private Acts which confer special benefits and impose special burdens on the citizens of one county, when there is no general statute, and when before the Private Act, there was only the common 280 law, and (2) those Private Acts which undertake to amend or abrogate a prior general statute in its application to a particular county or class of counties. Private Acts of the former class have been upheld, and those of the latter class struck down. (Emphasis supplied) 190 Tenn. at 657-58, 231 S.W.2d at 338. Exceptions or exemptions contained in a general act, or an act amendatory thereto are in precisely the same category and must be tested by the same rules. There must be a valid justification and a rational or reasonable basis for the distinction. A most excellent articulation of this general rule will be found in the landmark case of Town of McMinnville v. Curtis, 183 Tenn. 442, 192 S.W.2d 998 (1946), wherein then Special Justice Tomlinson recognized that many acts had been upheld which affected particular counties in their governmental or political[10] capacities, but pointed out that the act "either was not in conflict with the provisions of the general law, or the classification was upon a reasonable basis." 183 Tenn. at 447, 192 S.W.2d at 999. Justice Tomlinson tersely and thoroughly translated the precedents established by this Court: [T]he well settled law [is] that the legislature may constitutionally enact a special act affecting one particular county or municipality alone in its political or governmental capacity, provided such special act is not contrary to the provisions of a general law, applicable to all the counties or municipalities. 183 Tenn. at 448, 192 S.W.2d at 1000. Our cases uniformly hold that an act, general or private, which suspends the general law must be dependent for its constitutionality upon the existence of a reasonable basis for the exclusion. Brentwood Liquors Corp. of Williamson County v. Fox, supra; Crewse v. Beeler, 186 Tenn. 475, 212 S.W.2d 39 (1948). It is a matter of public record that exemptions or exceptions from public acts are frequently accomplished by the expedient of identifying counties by population brackets. This is not per se a pernicious practice. Indeed, in much legislation, Tennessee counties are classified according to their population, e.g. Sec. 8-2402, T.C.A., et seq., relating to the compensation of county officers. But these acts affirmatively show a rational scheme of classification. When general acts binding on all counties throughout the state, or on all that are similarly situated, contain exceptions that remove an otherwise affected county from the reach of the enactment, such exclusions are suspect. This situation becomes particularly acute when general bills are modified by floor amendments. This Court has addressed the exemption of counties from general laws on numerous occasions, and uniformly has required a rational or reasonable basis. Thus, in the landmark case of State ex rel. Bales v. Hamilton County, 170 Tenn. 371, 95 S.W.2d 618 (1936), the Court had under consideration an act wherein Hamilton County, by population provisions, was required to pay its teachers in a manner inconsistent with the general law. Chief Justice Green wrote for the Court: These acts are not saved because Hamilton county is designed therein by reference to its population. Unless the act relates to a matter in respect of which a difference in population would furnish a rational basis for diversity of laws, classification on such a basis will not be upheld. (Emphasis supplied) 170 Tenn. at 375, 95 S.W.2d at 619. As noted in Davidson County v. City of Nashville, 190 Tenn. 136, 228 S.W.2d 89 (1950), when legislation deals with a county as a governmental agency a classification of the county by reference to population is not of controlling significance, but an act is not valid merely because it deals with a county in its governmental capacity. It is in making this insistence that the brief of the 281 Attorney General falls wide of the mark. As noted in Davidson County, the "discrimination must be upon a reasonable basis." 190 Tenn. at 139, 228 S.W.2d at 90. Another significant holding is Board of Education of Memphis v. Shelby County, 207 Tenn. 330, 339 S.W.2d 569 (1960), in which the Court held that a population based exception to a general or uniform law violates Article XI, Section 8 of the Constitution of Tennessee. A most excellent articulation of this issue appears in State v. Shelby Co. Election Commission, 209 Tenn. 289, 352 S.W.2d 809 (1961), wherein the Court again held that legislation affecting particular counties or municipalities in their governmental capacities does no violence to our constitution, when there is no conflict with general law or the classification is on a reasonable basis. While we did not labor the issue in the recent case of Pirtle v. City of Jackson, 560 S.W.2d 400 (Tenn. 1977), we struck down a portion of Section 6-310, T.C.A. containing a population based exception to the state zoning law. Justice Cooper spoke for the Court: No rational basis has been suggested, nor does any occur to us, to justify the exclusion of a few chosen municipalities from the burden of proving the reasonableness of their annexation ordinances when such a burden is placed upon all other municipalities by the general law of this state. 560 S.W.2d at 402. I would reaffirm these principles and hold that a population based exception to a general law is offensive to Article I, Section 8 and Article XI, Section 8 of the Constitution of Tennessee in those cases where there is no sound reason and no rational basis for the exclusion. In the instant case the Act recites no basis for the variance in favor of Wayne County, nor are we cited to any, nor does any occur to us. Wayne County is excepted from significant provisions of a mandatory statewide law and from an Act specifically declared by the Legislature to be passed pursuant to a legislative intent to "create a uniform system of county government . . while providing a reasonable period of transition," leaving the Act in an internally inconsistent posture. The arbitrary nature of the exclusion is revealed by the fact that 26 counties smaller than Wayne County and 68 larger (less those having other recognized forms of government) are covered. I would, therefore, hold that so much of Sections 8, 16, 17, and 18 of Chapter 934 of the Public Acts of 1978, as operate to exempt Wayne County, or place it on a different footing from other counties similarly situated, is unconstitutional and void under Article I, Section 8, and Article XI, Section 8 of the Constitution of Tennessee. The same considerations operate to render those portions of those sections offensive to the Fourteenth Amendment to the Constitution of the United States. Again, the test must be the reasonableness of the classification. We so held in an extensive opinion in Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978), in which we pointed out that if the reasonableness of the class is "fairly debatable" it must be upheld. Here, it is not fairly debatable. We further pointed out that the classification would be upheld if it had a reasonable or natural relation to the legislative intent. Here, to the extent of Wayne County, it defeats the legislative intent to "create a uniform system of county government." While I agree with the conclusion reached by the majority with respect to the constitutionality of the provision governing election of the legislative body, I do not agree that a different legal situation exists, nor do I place any significance upon the provisions being transitional as opposed to permanent. I know of no rule of law that permits a temporary violation of a constitutional imperative. Section 5-502, T.C.A. is unconstitutional as it relates to Wayne County for the same reasons that invalidate those provisions requiring Wayne County to elect a county executive in 1978. These provisions are either both constitutional or both unconstitutional and for the same reasons. Any different conclusion rests upon a flawed foundation. 282 At the very outset of its opinion, the majority summarized the Act as follows: The 1978 legislation permitted most of the county judges, except in some of the larger counties and except in Wayne and Roane Counties, to remain in office until the expiration of their terms, performing both judicial and executive, or fiscal, duties. In Wayne and Roane Counties, a county executive was to be elected in 1978, as in those counties formerly having county chairmen, but judicial functions were not conferred upon the county executive and were not to be transferred until 1982 or until the death or resignation of the county judge. In most of the other counties having a county judge, judicial functions were to be transferred to the county executive in 1982, or sooner in the event of the death, resignation or removal from office of a county judge. (Emphasis supplied) I adopt the summary. From its recitation, there emerges the inescapable conclusion that these provisions are constitutionally unsound. FONES, J., concurs in this dissent. NOTES [] See Tenn. Pub. Acts, 1978, ch. 934, § 35(c); in the codification of this section, reference is made to Hamilton, rather than Polk, County. T.C.A. § 5-551(c) (Supp. 1978). [1] Article VII, as amended in 1978, by its terms does not apply to counties organized under those provisions of Article XI, § 9. [2] An identical provision excepts Bledsoe County by population bracket. [] See Chapter 934, Acts 1978, § 35(c); in the codification of this section, reference is made to Hamilton, rather than Polk County. Sec. 5-551(c) (Supp. 1978). [1] An identical proviso excepts Bledsoe County by population brackets. [2] Counties having a population of 400,000 or more. (Sec. 8-2402, T.C.A.) Davidson and Shelby are in this category. [3] Hamilton and Knox are in this population category. Only Hamilton has a county council form of government. It has both a county judge and a county executive. [4] The second population bracket identifies Roane County. [5] There were fourteen (14) such counties, i.e. Cannon, Chester, Cocke, Crockett, Dyer, Fayette, Hamblen, Jefferson, Johnson, Meigs, Morgan, Rhea, Unicoi and Washington. Additionally, Anderson, Moore and White had administrators and Putnam had a county manager. [6] There are 26 counties having a smaller population and 68 having a greater population. [7] Roane County, with a 1970 population of 38,881, is the 17th largest county in the State. [8] This enumeration should have included Morgan County. [9] It is irrelevant to the question under consideration that the Wayne County Judge's term of office is not diminished. [10] Chapter 934, Acts of 1978 affects Tennessee counties in their governmental or political capacities.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510292/	588 S.W.2d 807 (1979) Alejandro PEREZ, Appellant, v. Matthew McHAZLETT, Appellee. No. 16286. Court of Civil Appeals of Texas, San Antonio. July 18, 1979. Rehearing Denied Overruled September 25, 1979. Alonzo Villarreal, Jr., Uvalde, Richard C. Arroyo, Brownsville, for appellant. Luis M. Segura, San Antonio, Lupe Cortinas, Crystal City, for appellee. OPINION MURRAY, Justice. This is an appeal from the district court of Zavala County, Texas, granting a temporary injunction. Matthew McHazlett, appellee, sued Alejandro Perez, appellant, seeking to enjoin appellant from assuming the office of County Commissioner of Precinct Four, Zavala County. Appellant, Perez, was elected County Commissioner at the general election held on November 7, 1978, and appellee, McHazlett, applied for a recount of the ballots in the election as required by Article 9.38a of the Texas Election 808 Code. The official recount of the ballots resulted in McHazlett being elected County Commissioner. Although Perez participated in the recount, he chose to ignore the same, was administered the oath of office, and has attempted to act as County Commissioner. After hearing evidence, the trial court granted the temporary injunction, and Perez has perfected his appeal to this court. The trial court filed findings of fact and conclusions of law, which state in part: 13. The Court finds that the November 7, 1978, General Election for Zavala County Commissioner Precinct Four was first canvassed November 13, 1978, and it was announced that Raza Unida's candidate, ALEJANDRO PEREZ, received 629 votes and Democratic candidate MATTHEW G. McHAZLETT, received 628 votes. 14. The Court finds that MATTHEW G. McHAZLETT applied for a recount of ballots cast in said election for County Commissioner of Precinct Four of Zavala County as required by Article 9.38a of the Texas Election Code, that the application for recount was mailed to the opposing candidate, ALEJANDRO PEREZ, on November 13, 1978; that the said ALEJANDRO PEREZ received such application and personally attended the recount of votes cast in his race and that said recount was conducted on November 24th and November 25th, 1978. 15. The recount of the ballots showed that Plaintiff MATTHEW G. McHAZLETT received 635 votes and Defendant ALEJANDRO PEREZ received 631 votes. The Recount Committee submitted its report and totals to the Commissioner's Court sitting as the Canvassing Board at a called meeting held November 30, 1978. Plaintiff MATTHEW G. McHAZLETT was declared the duly elected County Commissioner of Precinct Four of Zavala County as provided by Article 9.38a of the Texas Election Code. 16. The Court finds that MATTHEW G. McHAZLETT has been precluded from assuming the public office to which he was elected by the people of County Commissioner Precinct Four of Zavala County, Texas. 17. The Court finds that Plaintiff has not been able to assume his office, its duties and emoluments. 18. The Court finds that Plaintiff was properly declared and duly elected County Commissioner of Precinct Four of Zavala County. Appellant contends that the recount of the ballots was void because the statutory notice requirements of Subdivision 2(b) of Article 9.38a were not complied with; therefore, he is the duly elected County Commissioner. It is our opinion that appellant's contention cannot be considered because he has not brought up a complete statement of facts. In the absence of a statement of facts, we are required to presume that the evidence was sufficient to support the findings of fact and the judgment rendered pursuant thereto. Appellee did not consent to a partial statement of facts, and in approving the statement of facts, the trial judge stated as follows: The above and foregoing pages, have been examined by the Court, are found to be true and correct (insofar as they go) and are hereby ordered filed as the Transcription of the Court Reporter's Notes in this cause on this the [17th] day of (March), A.D. 1979. [The following notation was written in longhand by the trial judge below the above quoted authorization of the statement of facts.] This judge objects to the partiality of this statementby taking only Mr. Perez's testimony it gives a distorted picture. /s/ Troy Williams Judge Presiding In Villanueva v. Harville, 419 S.W.2d 711 (Tex.Civ.App.San Antonio 1967, no writ), the court of civil appeals stated: Appellant, under her first point, urges that the overwhelming preponderance of the evidence establishes that she was denied the essential elements of due process, 809 to-wit, notice and the opportunity to be heard and defend her property rights in the office in an orderly proceeding. We are unable to review the entire record as required in passing upon this point because of appellant's failure to comply with Rule 377, Texas Rules of Civil Procedure. The statement of facts filed herein does not contain any of the exhibits introduced in evidence although they are of obvious materiality. Among these exhibits is the order under attack, as well as other minutes and records of the Commissioners Court dealing with the need for two Justices in Precinct 1. Since appellees did not consent to a partial statement of facts, we are required to treat this as an appeal without a statement of facts. Gordon v. Aetna Casualty & Surety Co., 351 S.W.2d 602 (Tex.Civ. App.Eastland 1961, writ ref'd). 419 S.W.2d at 712. Appellant's other contention that the trial court did not have jurisdiction to grant an injunction in this case is without merit. Appellant argues that appellee's only remedy is by a quo warranto proceeding against appellant since he has already taken the oath of office. Tex.Rev.Civ.Stat. Ann. art. 6253 (Vernon 1970). According to the findings of the trial court from the hearing on the temporary injunction, appellee is prima facie entitled to the office of County Commissioner. His right to the office is conclusive until it is otherwise determined in an appropriate proceeding by some tribunal having authority in such matter. A proper regard for the orderly administration of government in the acts of its constituted authorities would require a defeated candidate to resort to the courts and not to self-help. On this point, this Court in Gonzalez v. Duran, 250 S.W.2d 322 (Tex.Civ.App.San Antonio 1952, writ ref'd), stated: The status protected is that status which has followed the law. If the law were otherwise, a holdover, or one who could maintain his possession by self-help or vi et armis, in the face of results as described by those governmental officers named by the law, would be protected against those who submitted themselves to the processes of the law. The status that is protected is that which the law says exists during an election contest and not that status asserted by the strong arm of possession pending the election contest. If such were the law, a candidate though defeated, at least temporarily could substitute himself as the legal authority to declare results, could displace elections and constituted authority and government, and remain in possession, however that possession may have been gained. 250 S.W.2d at 324. The adoption of appellant's contention would allow a defeated candidate to take the oath of office and exercise the powers of that office until the officers of the State of Texas saw fit to intervene by way of a quo warranto proceeding. We cannot give our assent to a result that would deny appellee the protection he sought by way of injunction in this case. The judgment of the trial court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510291/	821 F. Supp. 1093 (1993) Willie Ray WILLIAMS and Michelle Dejesus v. Thomas FRAME, Warden, Chester County Prison, et al. Civ. A. No. 92-5411. United States District Court, E.D. Pennsylvania. May 19, 1993. As Amended August 17, 1993. 1094 1095 Willie Ray Williams, pro se. Michelle Dejesus, pro se. MEMORANDUM ROBRENO, District Judge. I. INTRODUCTION On September 17, 1992, Willie Ray Williams and Michelle Dejesus submitted to the Court a lengthy and rambling pro se complaint alleging a litany of 42 U.S.C. § 1983 civil rights violations they claim to have suffered, respectively, at the hands of the Warden of Chester County Prison and various corrections officers. The complaint was signed by Williams alone ostensibly because Williams, a layman, was purporting to act on Dejesus's behalf. By Memorandum and Order dated December 16, 1993, this Court returned the complaint to Dejesus for her signature on the grounds that Fed. R.Civ.P. 11 requires that all pleadings be signed by a party or the party's attorney and that Williams was precluded by law from acting as Dejesus's attorney. Williams v. Frame, 145 F.R.D. 65 (E.D.Pa.1992). The Court expressly reserved judgment on whether the complaint would be dismissed as frivolous. Since the December 16 Order, Dejesus has, in fact, returned a signed complaint. After Dejesus signed the complaint, however, Williams submitted to the Court a "Motion for Leave to File a Supplemental Amended Complaint," with an amended complaint attached. The amended complaint is substantially identical to the original complaint as to Williams's claims, with some additional allegations included. Most of Dejesus's claims have been omitted from the amended complaint. The amended complaint, although purportedly asserted on behalf of both Williams and Dejesus,[1] is once again signed only by Williams. By virtue of the December 16 Order, the Plaintiffs were on notice that unless they were represented by counsel, both of them must sign all pleadings submitted to the Court. This instruction has now been ignored, and there is no reason to believe it will not be so ignored again in the future. For this reason, the Court will sever Dejesus's claim from Williams's so as to allow each Plaintiff to submit his/her pleading without need for the other's signature. The Clerk will be directed to assign the complaint signed by Dejesus a new civil action number separate from this one. From this point forth, all pleadings filed on behalf of Williams will be docketed in this action, and all pleadings filed on behalf of Dejesus will be filed on the docket of the new action. The Plaintiffs are once again reminded that no pleading will be considered unless it is signed by the Plaintiff in his/her case. Fed.R.Civ.P. 11. The remainder of this Memorandum relates to the substance of Williams's amended complaint. Since the original complaint signed by Dejesus will be docketed at a new docket number, the Court will enter a separate Order addressing the merits of her claims. II. THE AMENDED COMPLAINT Williams attempts to amend his original complaint to withdraw his claims against two corrections officers and add the Court of Common Pleas of Chester County as a new defendant. At the same time Williams also filed a "Motion for Preliminary Injunction Pending Permanent Injunction" and supporting memoranda,[2] wherein he further embellishes 1096 his original allegations and seeks to plead additional claims. Since the original complaint was never filed on the docket of the Court, the Court will deem the original complaint moot and will address the merits of the amended complaint. As noted above, however, the two are, in any event, substantially identical as to Williams. Willie Ray Williams has been an inmate at Chester County Prison since March 1991. In his various pleadings, he alleges constitutional violations arising from misconducts given to him by staff members, denial of prison employment, denial of minimum security status, denial of parole, tampering with his personal and legal mail, withholding personal property, denial of food, smoke inhalation, denial of use of the copy machine, denial of medical treatment, denial of freedom of religious association, illegal conviction, misinformation in his records, denial of purchase of a typewriter, cost of legal supplies, denial of adequate law library access, and refusal to provide grievance forms. In a few pleadings, Plaintiff[3] manages to touch upon many of the issues of inmate rights which have become "impassioned, expansive and complicated." Robbins, "The Prisoners' Mail Box and the Evaluation of Federal Inmate Rights" 144 F.R.D. 127, 131 (1993). The common denominator of this veritable cafeteria of constitutional theories is Plaintiff's belief that various prison officials and others are conspiring to harass him and violate his constitutional rights. As to nearly every claim, however, Plaintiff's constitutional grasp exceeds his factual reach. With his complaint, Plaintiff filed a request for leave to proceed in forma pauperis. As it appears he is unable to pay the cost of commencing this action, leave to proceed in forma pauperis is granted. 1. CONSPIRACY Plaintiff's allegation that he is the victim of a conspiracy to deny his constitutional rights is dismissed as legally frivolous. "A general averment of conspiracy or collusion without alleging the facts which constituted such conspiracy or collusion is a conclusion of law and is insufficient." Kalmanovitz v. G. Heileman Brewing Co., 595 F. Supp. 1385, 1400 (D.Del.1984), aff'd, 769 F.2d 152 (3d Cir.1985). Not only is the complaint devoid of credible factual allegations, but there is not so much as a hint that Plaintiff's perceived plight is the result of any "agreement, either explicit or implicit, to commit an unlawful act, combined with intent to commit the underlying offense." United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.), cert. denied, 479 U.S. 821, 107 S. Ct. 87, 93 L. Ed. 2d 40 (1986). 2. MISCONDUCTS Plaintiff alleges that administrative policies and procedures applicable to inmate conduct are not set forth in the Chester County Prison's inmate handbook, and the inmates do not otherwise have access to this information. Plaintiff claims that the procedure allows the prison guards to set rules of conduct at the prison and consequently to arbitrarily assign misconducts to the inmates who violate these guard-imposed rules. Plaintiff recounts several incidents which he believes show a pattern of harassment and intimidation. Specifically, he mentions being intentionally given less food than other inmates or inedible food, and then receiving misconducts for taking additional food or attempting to return the inedible food. He also alleges that he was given misconducts for not providing an inmate with legal assistance, and for refusing to occupy an upper bunk when he alleges that he could not make the climb due to an arthritic leg. 1097 This claim is dismissed as legally frivolous. While Plaintiff may disagree with the basis for the issuance of the misconducts, such an allegation standing alone is insufficient to state a constitutional violation where, as here, the inmate fails to allege that he was denied due process in connection with adjudication of the charges alleged in the misconducts. Freeman v. Rideout, 808 F.2d 949, 951-52 (2d Cir.1986); Vines v. Howard, 658 F. Supp. 34 (E.D.Pa.1987). 3. DENIAL OF PRISON EMPLOYMENT Plaintiff alleges that, as part of the conspiracy to harass him, he was denied employment in the prison. This claim is dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(d), as inmates have no constitutional right to prison employment. Williams v. Meese, 926 F.2d 994 (10th Cir. 1991). Nothing in this complaint suggests that Plaintiff, who indicates that he is in administrative segregation, was denied prison employment for impermissible reasons. 4. DENIAL OF MINIMUM SECURITY STATUS Plaintiff's claim that he should be transferred from administrative segregation to minimum security status is dismissed as frivolous. Plaintiff has no right under the U.S. Constitution to any specific custody status. Montanye v. Haymes, 427 U.S. 236, 242, 96 S. Ct. 2543, 2547, 49 L. Ed. 2d 466 (1976). Further, Plaintiff, a county prison inmate, has not identified any Pennsylvania regulation that can be said to create such an interest in his case. See Tyler v. Rapone, 603 F. Supp. 268 (E.D.Pa.1985) (Pennsylvania regulations governing administrative segregation of county, as opposed to state, inmates do not create a liberty interest, distinguishing Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983); Marshall v. Kozakiewicz, 601 F. Supp. 1549 (W.D.Pa.1985) (same). 5. DENIAL OF PAROLE Plaintiff alleges that his application for release on parole was disapproved without legitimate cause. In essence, Plaintiff disagrees with the parole board's conclusion that the nature of his offense and his behavioral adjustment during incarceration provide sufficient basis for the denial of parole. There is no constitutional right to parole, see Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Parole decisions, however, may not be based on impermissible factors. Jackson v. Walters, 733 F. Supp. 33 (W.D.Pa.1989). Although Plaintiff advances a conspiracy theory to explain the denial of parole, the board's decision appears to be based on legitimate considerations relevant to the Plaintiff's ability to adjust to released status. Because Plaintiff's allegations fail to identify the impermissible factors upon which the parole board's decision was based, this claim is dismissed as frivolous. 6. INTERFERENCE WITH PERSONAL AND LEGAL MAIL Plaintiff alleges that Counselors Snyder and McFadden and others have delayed delivery of his legal mail, and that "recently July 1992, Plaintiff filed a motion in the Court of Common Pleas and the motion was dismissed the [sic] court." Plaintiff's allegation that one of his motions was dismissed by the Court of Common Pleas is not apparently connected to any specific instance of mail delay. To the extent that Plaintiff may be deemed to be alleging interference with his right to access the courts, he has failed to show that the interference resulted in injury. See Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3d Cir.1988). Accordingly, this claim is dismissed as legally frivolous. Plaintiff also asserts that counselors, guards, and an inmate have read personal correspondence between another inmate, Michelle Dejesus, (his former co-plaintiff in this action), and him. This claim is also dismissed as frivolous. Inmate-to-inmate correspondence may be restricted without necessarily running afoul of constitutionally protected rights provided the restriction "is reasonably related to valid corrections goals." Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Plaintiff fails to allege that he was even authorized to correspond 1098 with Ms. Dejesus, as is required under applicable prison regulations (37 Pa.Code § 95.234(a)(2)) in cases of inmate-to-inmate correspondence. Further, Plaintiff's conclusion that his correspondence was actually opened and read by others appears to be mere speculation inspired by his conspiracy theory. Finally, Plaintiff's allegation that some of his outgoing mail to the news media and a religious group has been lost is also dismissed as legally frivolous. Plaintiff fails to even allege how his mail was lost. Moreover, this appears to be nothing more than a negligence claim, which is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). 7. DENIAL OF PERSONAL PROPERTY Plaintiff alleges that for two weeks he was not permitted access to a check for $3,772 which was sent to him at the prison. Further, Plaintiff claims the check was deposited in Plaintiff's inmate account against his wishes, and that the prison drew interest on the deposit during that time. This claim is dismissed as legally frivolous. The Supreme Court has held that "[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy is available." Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204, 82 L. Ed. 2d 393 (1984). Since Plaintiff appears to have a state remedy for his property claim, see 42 Pa.C.S.A. § 8550, a § 1983 action is inappropriate. See generally Jones v. Waters, 570 F. Supp. 1292, 1298 (E.D.Pa.1983) (dictum). 8. DENIAL OF ADEQUATE FOOD Plaintiff alleges that on several occasions three prison cooks, "Roberson, Stevenson, and Purdy", directed the inmates who serve food in the prison cafeteria to give Plaintiff less food than was given to the other inmates. When Plaintiff complained of this to Corrections Officers Barnett, Santos, Thomas, Saunders, Conway, and others, nothing was done about Plaintiff's complaint. Although this allegation may be actionable under § 1983, Plaintiff has provided the Court with insufficient detail of the incidents. Accordingly, Plaintiff is granted leave to amend his complaint to advise the Court whether the aforementioned cooks are inmates or prison employees, to provide the specific involvement of each individual involved in the alleged deprivation of adequate food, and to amend the complaint's caption to include the names of each of these defendants. 9. SMOKE INHALATION Plaintiff alleges that on several occasions the guards failed to put out fires set by inmates. As a result, Plaintiff and other inmates suffered smoke inhalation which required hospitalization. While this allegation may state a claim under § 1983, cf. McKinney v. Anderson, 959 F.2d 853 (9th Cir.1992) (under certain circumstances exposure to secondary smoking may constitute cruel and unusual punishment), cert. granted sub nom., Helling v. McKinney, ___ U.S. ___, 112 S. Ct. 3024, 120 L. Ed. 2d 896 (1992), Plaintiff fails to identify the guards involved and the appropriate date and time of the incidents. Plaintiff is granted leave to amend his complaint to provide this information and, if necessary, to amend the complaint's caption accordingly. 10. DENIAL OF COPY MACHINE Inmates do not have a constitutional right to the use of photocopying equipment. See Johnson v. Moore, 948 F.2d 517, 521 (9th Cir.1991). Denial of access to free photocopying may be actionable only if it is predicated upon an allegation of actual injury amounting to a denial of access to the courts. Id. Because Plaintiff fails to allege actual injury as a result of this alleged deprivation, his claim that he was denied use of the photocopy machine is denied as frivolous. 11. DENIAL OF MEDICAL TREATMENT Plaintiff alleges that "the administration has been denying medical treatment, by refusing to answer Plaintiff's requests to be seen at medical." To make a colorable claim 1099 of medical treatment so inadequate that it violates the Eighth Amendment's prohibition against cruel and unusual punishment, Plaintiff must allege "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). Plaintiff has failed to provide the Court with sufficient information to determine whether he has stated a colorable Eighth Amendment violation. Therefore, Plaintiff is granted leave to amend his complaint to explain the nature of his medical need, the effect of denial of treatment on his physical condition, the number of requests he submitted and the responses thereto, and the individual or individuals responsible for the alleged denial of treatment. 12. DENIAL OF RELIGIOUS ASSOCIATION Plaintiff alleges that he has been denied freedom to associate with the religious group of his preference, while other inmates in administrative segregation are ostensibly permitted to do so. However, Plaintiff fails to plead facts with sufficient details to allow the Court to assert the reasonableness of the claim. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987) (prison officials acted in reasonable manner by precluding Islamic inmates from attending certain religious services). Plaintiff is granted leave to identify the individual or individuals responsible for the alleged violation, to provide the approximate date of the violation and details of each violation and, if necessary, to amend the complaint's caption to include appropriate names. 13. CRIMINAL CONVICTION Plaintiff alleges that "[N]ow this conspiracy by guards, the State Police, former Detective Yoder, and Plaintiff's personal attorney who represented Plaintiff at trial who refuses to return Plaintiff's files, and continue to refuse to correct his deliberate errors at trial in order to convict Plaintiff (Williams) of all charges in order to clear another client, represented by him." Since this allegation and other allegations against these defendants and other individuals involved in his trial were adjudicated by this Court in Civil Action Number 92-5211, which was dismissed by order dated November 30, 1992, this claim is dismissed as frivolous. Plaintiff's dissatisfaction with his trial appears to be the basis for his inclusion of the Chester County Court of Common Pleas in his "supplemental amended complaint." The claim against this defendant is dismissed as frivolous. This issue has already been previously heard by this Court, and the Chester County Court of Common Pleas is not amenable to suit under § 1983. See Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). 14. MISINFORMATION IN PLAINTIFF'S RECORDS Plaintiff appears to be alleging that prison officials provided outdated and prejudicial information to the FBI in connection with a records request which Plaintiff made to the FBI pursuant to his application for release on parole. Because of this, Plaintiff believes that his FBI records now include misinformation which is harmful to his reputation. This claim is dismissed as legally frivolous. Although Plaintiff believes this to be further evidence of a conspiracy against him, this appears to be, at best, a negligence claim which is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). 15. DENIAL OF TYPEWRITER Plaintiff alleges that his requests to purchase a typewriter for use in his cell have been denied. He alleges that there is only one typewriter in the law library and that denial of a personal typewriter violates his First Amendment rights. This claim is denied as legally frivolous. Plaintiff has no First Amendment or other constitutional right to purchase a typewriter. Moreover, he fails to demonstrate actual injury due to the lack of a personal typewriter. See Peterkin, 855 F.2d at 1041. 16. COST OF LEGAL SUPPLIES Plaintiff alleges that the cost of legal supplies and photocopying at the prison is excessive, thereby violating his First Amendment rights as an indigent prisoner. This *1100 claim is dismissed as legally frivolous. As with the claimed denial of access to photocopying and to a typewriter, Plaintiff has failed to show the requisite actual injury. Peterkin, 855 F.2d at 1041. Moreover, the volume of written material Plaintiff has submitted in connection with this and other actions filed in this Court is proof positive that his right to free speech and access to the courts has not been impeded by the cost of legal supplies and photocopying at Chester County Prison. See Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir.1982). 17. DENIAL OF ADEQUATE LAW LIBRARY ACCESS Plaintiff alleges that he is allowed only seven hours per week in the law library. Although Plaintiff cites guidelines which allow the prison to deny segregated prisoners, such as Plaintiff, any law library time, he argues that, by contrast, other segregated prisoners are allowed more than seven hours per week in the law library. It is settled that the constitutional right of access to the courts includes inmates access to adequate law library time. See, Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). Plaintiff's claim is legally frivolous because he has not demonstrated that the access he has been provided is not adequate. Moreover, Plaintiff has failed to show that any deprivation of access to the library beyond seven hours has involved actual injury. Peterkin, 855 F.2d at 1041. 18. DENIAL OF GRIEVANCE FORMS Although Plaintiff alleges that he has been denied forms with which to file administrative grievances, he makes reference in his complaint to letters he has written to prison officials addressing his administrative complaints. Consequently, Plaintiff fails to demonstrate that the alleged failure to provide him grievance forms has denied him the ability to use the prison grievance process. Accordingly, this complaint is dismissed as legally frivolous. 19. MOTION FOR INJUNCTIVE RELIEF Plaintiff's complaint contains a sweeping request for injunctive relief. Before such extraordinary relief can be granted Plaintiff must show that irreparable injury will result if this relief is not granted prior to the final adjudication of the claims on their merits. Perkins v. Wagner, 513 F. Supp. 904, 906 (E.D.Pa.1981) (applying standard for granting injunctive relief in the context of a prisoner claim). Plaintiff must also show a reasonable probability of success on the merits and that possible harm to the opposing party is minimal. Id. The motion for a preliminary injunction must be denied because the facts that Plaintiff has alleged in the complaint and in the motion do not meet these requirements. III. CONCLUSION On the basis of the foregoing, the complaint is dismissed as frivolous pursuant to 28 U.S.C. § 1915(d), with leave to amend as specified herein. The motion for a preliminary injunction is also denied.[4] NOTES [1] The caption of the amended complaint names the plaintiffs as "Willie Ray Williams, et al." The Court can only presume that the "et al." referred to is Dejesus, who was the only other named plaintiff in the original complaint. [2] It appears that plaintiff also seeks a temporary restraining order for the same reasons as those that purportedly support plaintiff's request for a preliminary injunction. The Court's discussion of injunctive relief in this Memorandum applies to both the request for preliminary injunction and the request for a temporary restraining order. It also seems that the facts alleged by plaintiff in support of his motion for injunctive relief substantially overlap with the facts set forth in the complaint. Some additional facts are, however, set forth for the first time in the motion for injunctive relief. Those additional facts, and whether they support a cause of action, are addressed infra. [3] Since this Memorandum and Order relate only to Williams, the term "plaintiff" herein refers to Williams only, and not Dejesus. [4] Also denied are Plaintiff's motion for appointment of counsel, Plaintiff's motion for relief from various copying fees, Plaintiff's motion for consolidation of this case with Dejesus's, and Plaintiff's motion for service of process.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510290/	588 S.W.2d 549 (1979) STATE of Tennessee, Petitioner, v. John DOE, Respondent. Supreme Court of Tennessee. October 15, 1979. 550 John C. Zimmerman, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for petitioner. Charles D. Susano, Jr., Doris C. Allen, Knoxville, for respondent; Bernstein, Susano, Stair & Cohen, Knoxville, of counsel. OPINION COOPER, Justice. We granted certiorari to consider a decision by the Court of Criminal Appeals, holding that the provisions of T.C.A. § 40-4001 et seq. require the destruction, in certain instances, of all records relating to a charge brought against an individual, rather than merely those records open to public inspection. We affirm. 551 The instant case originated with the arrest of the respondent on a charge of making an obscene telephone call. Ultimately, he was acquitted. He then filed a petition under T.C.A. § 40-4001, seeking to have all references to the charges brought against him removed from records maintained by any public official. The statute provides, in part: All public records of a person who has been charged with a misdemeanor or a felony, and which charge has been dismissed, or no true bill returned by a grand jury, or a verdict of not guilty returned by a jury or a conviction which has by appeal been reversed, shall, upon petition by said person ..., be removed and destroyed... . At present, the only records as to which there remains any controversy concerning the applicability of the statute are certain jail and identification records, maintained by the sheriff, and a file kept by the office of the district attorney general. The parties have stipulated that, while neither the sheriff nor the district attorney permit public inspection of these records, both distribute them to other law enforcement agencies, at their discretion.[1] The trial judge denied the petition insofar as it sought the destruction of those references to the respondent in materials maintained by the sheriff or the district attorney, holding that these were not "public records" within the meaning of the statute. The Court of Criminal Appeals reversed. As we intimated earlier, it is the State's contention that the statute, when it speaks of the destruction of public records, refers only to those records open to public inspection and thus does not apply to those at issue here.[2] We do not believe that this remedial legislation merits so narrow a construction. Cf. Dailey v. State, 225 Tenn. 472, 470 S.W.2d 608 (1971). As in all instances of statutory interpretation, we must attempt to ascertain and give effect to the intent of the legislature. See, e.g., Parkridge Hospital, Inc. v. Woods, 561 S.W.2d 754 (Tenn. 1978); State ex rel. Rector v. Wilkes, 222 Tenn. 384, 436 S.W.2d 425 (1968). In doing so, we rely, whenever possible, primarily upon the ordinary meaning of the language used. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn. 1977). However, in the statute at issue here, the key terms "public records" are ambiguous: What is a "public record" depends on the context in which the terms are employed, and among the meanings generally accepted are those that would support the position of either the State or the respondent. Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972); Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833 (1967); MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961). Compare State v. Brantley, 201 Or. 637, 271 P.2d 668 (1954) [records "`"made by an officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or serve as a memorial of official transactions for public reference"'"] with Losavio v. Mayber, supra, ["`all writings made ... or kept by the state . . for use in the exercise of functions required or authorized by law,'" quoting Colo. Rev. Stat. 1963, 113-2-2(2) (1969 Supp.)]. Thus, we must define "public records," for the purposes of this statute, in such a way as to effect the apparent intent of the legislature, as that intent can be derived from the statute as a whole. See Tidwell v. Collins, 522 S.W.2d 674 (Tenn. 1975); Corn v. Fort, 170 Tenn. 377, 95 S.W.2d 620 (1936). Cf. Southern Railway Co. v. Fowler, 497 S.W.2d 891 (Tenn. 1973). *552 The intent of the legislature in enacting the statute at issue, in our opinion, was to prevent a citizen from bearing the stigma of having been charged with a criminal offense, where he was acquitted of the charge or prosecution of the charge was abandoned. It is common knowledge that the preferment of charges against a citizen can have a severe impact upon his reputation, regardless of whether or not a conviction results, and that this impact can be greatly increased by the dissemination of information concerning the accusation by public officers, with the official sanction that this implies. Concern for this impact has prompted other jurisdictions to make various efforts to limit any lasting prejudice that might result from the mere fact of arrest. See, e.g., Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Doe v. Commander, etc., 273 Md. 262, 329 A.2d 35 (1974); but cf. Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). See also Annot., 46 A.L.R. 3d 900. Slight reflection makes it apparent that the similar concerns that prompted our legislature to enact T.C.A. § 40-4001 and its associated provisions would not be satisfied by eliminating only those records of a criminal charge to which the public has access. An equal or greater problem is presented by the dissemination of the internal records of law enforcement agencies to interested persons or organizations, both public and private, as well as by the use of those records by the agencies themselves in the course of their investigations. The stigma that attaches to one charged with a crime can best be minimized only by removing any reference to the accusation in all records maintained by a public officer, whether those records be for public inspection or internal use. Accordingly, for the purposes of this statute, we hold that "public records" refers to all records maintained by a public official, and we thus concur in the finding of the Court of Criminal Appeals that the statute mandates the expunction of the records in dispute in the instant case. Contrary to the claims of the State, such an interpretation of the statute does not make it unconstitutional. As we have held previously, the determination of what records shall be maintained by a public officer is the prerogative of the legislature, and thus the limitations imposed by this statute do not encroach upon the proper spheres of the other branches of government. Underwood v. State, 529 S.W.2d 45 (Tenn. 1975). Finally, even were we to assume, as contended by the State, that the "attorney's work product" privilege has any application apart from its relevance to the rules of discovery, and thus would protect the records to the district attorney at issue here, that privilege is not of constitutional dimensions, and thus could be abrogated by statute. The judgment of the Court of Criminal Appeals is affirmed, and the cause remanded for the implementation of this decision. BROCK, C.J., and FONES, HENRY and HARBISON, JJ., concur. NOTES [1] Apparently finding fault with this stipulation, the State has filed a "motion for consideration of post-judgment facts," under rule 14 of the Rules of Appellate Procedure, seeking to bring certain matters to the attention of the court. These matters, if true, were equally true at the time of trial. The purpose of a rule 14 motion is to bring before the court material facts that arise after judgment, not to vary or augment a trial stipulation with facts extant at its entry. The motion is denied. [2] For the purposes of this opinion we will assume, without deciding, that the records at issue in this case are in fact not subject to public inspection. But cf. T.C.A. § 15-401 et seq.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510363/	148 N.J. Super. 250 (1977) 372 A.2d 620 RONALD ULINSKY, PLAINTIFF-RESPONDENT, v. ELLEN AVIGNONE AND MRS. FRANK AVIGNONE, DEFENDANTS-APPELLANTS. Superior Court of New Jersey, Appellate Division. Submitted February 14, 1977. Decided March 10, 1977. 251 Before Judges BISCHOFF, MORGAN and FURMAN. 252 Messrs. Adams, Adubato, Tafro & Connelly, attorneys for appellants (Mr. Maurice H. Connelly, on the brief). Mr. David J. Zendell, attorney for respondent (Mr. Edward Brown, on the brief). The opinion of the court was delivered by MORGAN, J.A.D. In this malicious prosecution action defendants challenge a trial court order denying them access to records concerning plaintiff's arrest, detention and trial which had been expunged at plaintiff's request pursuant to N.J.S.A. 2A:85-17(b). We granted defendants' leave to appeal. The facts pertinent to this appeal exist without material dispute. Defendants caused plaintiff's arrest when they filed a complaint in the Bloomfield Municipal Court charging him with indecent exposure in violation of N.J.S.A. 2A:115-1. Although there is some dispute as to whether the police investigation preceded or followed the filing of the complaint, there is no question but that it was filed and that plaintiff was arrested as a result. The ensuing municipal court trial, which took place on December 19, 1974 and January 23, 1975, resulted in plaintiff's acquittal. During the spring of 1975 plaintiff applied to the Bloomfield Municipal Court for an order expunging all records pertaining to his arrest, detention and trial. No law enforcement authority objected to the granting of the application and on July 16, 1975 an order expunging all of the records pertaining to this matter was granted. Several months later, in November 1975, plaintiff filed his Superior Court complaint alleging that defendants, Ellen Avignone, an infant, and Mrs. Frank Avignone, her mother, "falsely, maliciously and without reasonable and probable cause" charged plaintiff with the offense for which he was later tried and acquitted. Substantial money damages were sought as a result of the alleged injury to plaintiff's reputation and good name, forced change of employment and the 253 necessity to expend monies in defense of the disorderly persons offense of which he was accused. After they filed an answer to the complaint defendants successfully obtained from plaintiff's attorney the transcript of one of the two days of trial, copies of defendants' statements and one of Theresa Limongello, copies of defendants' complaint against plaintiff, and the arrest and incident report of the Bloomfield police. Contending, however, that these records were not complete lacking one day of trial, the police investigation, interviews with witnesses, and other records of which they may not have knowledge defendants moved before the municipal court judge, who had expunged the records at plaintiff's request, for production of all of the records and a complete trial transcript. The application was denied, the municipal judge taking the position that it lacked jurisdiction to grant the requested relief. A motion in the Superior Court was next filed, again seeking production of all of the records pertaining to plaintiff's arrest, detention and trial. That application was also denied, reluctantly, and on the same grounds, that the court lacked jurisdiction to grant the requested relief. We granted defendants leave to appeal. N.J.S.A. 2A:85-15 grants to any person acquitted of a violation of a municipal ordinance, the Disorderly Persons Law, a misdemeanor or a high misdemeanor, the right to petition for expungement of all evidence of his arrest, including evidence of detention related thereto. N.J.S.A. 2A:85-16 requires the court, by order, to fix a date for a hearing on the application for expungement and to serve a copy of the order upon the Attorney General, the prosecutor of the county wherein the court is located, the chief of police or other executive head of the police department of the municipality in which the arrest occurred, and upon the chief law enforcement officer of any other law enforcement agency of the State which participated in the arrest in question. The purpose of notifying these authorities of the pending application for expungement and the date of the scheduled hearing 254 thereon is to provide those agencies with the opportunity of tendering their objection to expungement. If any of the law enforcement agencies notified object, expungement is denied, but the records may be sealed, in which case their content may be released upon motion and for good cause shown, and then only in accordance with the limitations set forth in the order. N.J.S.A. 2A:85-18(b). If, however, no objection is received from law enforcement authorities, the court may order the records expunged, in which case the records or the information contained therein are not to be released "for any reason." N.J.S.A. 2A:85-17(b) provides: If an order expunging the records is granted by the court, all the records specified in the order shall be removed from the files and placed in the control of a person who shall be designated to retain control over the expunged records and who shall ensure that the records or the information contained therein is not released for any reason. In response to requests for information or records on the person who was arrested, the law enforcement officers and departments shall reply, with respect to the arrest and proceedings which are the subject of the order, that there is no record. N.J.S.A. 2A:85-21 describes the effect of expungement or sealing in the following terms: If an order expunging or sealing a record of arrest is granted, the arrest and any proceedings related thereto shall be deemed not to have occurred and the petitioner may answer accordingly any question relating to their occurrence. In the present case no objection to expungement from law enforcement authorities was received, the records were expunged and, under the literal terms of the statute by which the trial judge conceived himself bound, could not be released "for any reason." The statutory sense of this enactment is clear. Its purpose is to provide the means of insulating one acquitted of a charge of criminal conduct from the disabilities or adverse effects which could be foreseen as resulting from dissemination 255 of the fact of his mere involvement with law enforcement. The protection made available is, according to its literal terms, quite complete; the expunged records can be exhibited to no one for any reason, not even to the person who sought and obtained expungement. Theoretically, even were plaintiff to attempt to view them for his own purposes, he would be denied access; unable to obtain them for himself, he is in no position to consent to others viewing them. Taken literally, the records, although in existence, are in contemplation of law nonexistent. The events which they concern and evidence do, nonetheless, have existence; indeed, in this case, they have been specifically drawn in issue by plaintiff himself. Hence, plaintiff eschews the statutory fiction that his arrest and the related proceedings "shall be deemed not to have occurred." N.J.S.A. 2A:85-21. He asserts, understandably and correctly, that his arrest and trial did occur, seeks to visit on defendants' liability for their occurrence, but, at the same time, seeks the protection of the statute in denying defendants access to the records which evidence this occurrence. This he cannot do. The remedy of expungement was never intended as a device by which a plaintiff in a malicious prosecution suit could control the availability of evidence relevant thereto. Although not so characterized, expungement is a privilege accorded only at the request of the person seeking it and when no law enforcement authority notified of the request has any objection. See State v. San Vito, 133 N.J. Super. 508, 511 (App. Div. 1975). Since it was designed for his benefit, its protection can be waived whenever it is in his best interest that disclosure of the expunged records be made, even though the statute makes no express provision therefor. See Evid. R. 37. For example, were plaintiff to find himself subjected to a second prosecution for this same offense, he could undoubtedly authorize and consent to disclosure of the expunged records in this case to demonstrate incontrovertibly a former acquittal on the merits in support 256 of a claim of double jeopardy. To hold otherwise would convert the privileges of expungement from a haven into a trap for the unwary. The Legislature could have intended no such absurd result. Hence, although the statute does not, in express terms, make the expunged records available to the one who obtained expungement, there is no question but that the records are so available at his request. That being so, he is privileged to authorize and consent to their disclosure to others, again in his own best interests, and the custodian of the records is obligated to respond to such a request. By initiating the present suit plaintiff has made disclosure to defendants and the court of the events reflected in the expunged records. His complaint affirmatively pleads the filing of the municipal court complaint, its contents, his resulting arrest, detention, trial and the alleged damage resulting to him therefrom. Trial of the issue will be in a public forum from which the public is not excluded. Any judgment in his favor will, of necessity, be based upon a finding that the events evidenced in the expunged records did occur. In these circumstances, construction of N.J.S.A. 2A:85-17(b) to forbid disclosure of the expunged records reflecting precisely those events which plaintiff has voluntarily disclosed in his own pleadings is unwarranted. Disclosure to defendants, who already have full knowledge of plaintiff's arrest, detention and trial, would neither injure plaintiff nor subvert the purposes of the expungement statute; disclosure would not increase the sum of defendants' knowledge of the incident reflected in the expunged records, but would simply provide them with the wherewithal to defend against the allegations in the complaint. We therefore hold that as a condition to maintaining a suit for malicious prosecution based upon events reflected in records which have been expunged, a plaintiff must consent to defendants request for inspection and copying of the expunged records and authorize the court to order the custodian thereof to make available to defendants all of the 257 records which have been expunged. The court in which such a suit is filed has the jurisdiction to enter such an order if consented to by the plaintiff in the malicious prosecution action. A refusal to consent to such a request and to authorize disclosure of the expunged record in such circumstances will require the dismissal of the malicious prosecution suit. Although not presented in precisely this form, the projected issue is not entirely novel. In Brogan v. Passaic Daily News, 22 N.J. 139, 151-152 (1956), the court held that in a libel case assertion by the newspaper of the defense of fair comment and good faith constituted a waiver of a newspaper's privilege against disclosure of sources. See also, Beecroft v. Point Pleasant Print. & Publ. Co., 82 N.J. Super. 269, 275-277 (Law Div. 1964). A governmental privilege against disclosure of official information has been denied in proceedings instituted by the government to which the privileged matter is relevant. See United States v. Cotton Valley Operators Comm., 9 F.R.D. 719, 721 (W.D. La. 1949), aff'd 339 U.S. 940, 70 S.Ct. 793, 94 L.Ed. 1356 (1950); United States ex rel. Schlueter v. Watkins, 67 F. Supp. 556, 561 (S.D.N.Y.), aff'd 158 F.2d 853 (2 Cir.1946). See also, McCormick, The Law of Evidence (2 ed. 1972), § 110. The confidentiality accorded to a juvenile's records has been breached to the extent necessary to insure the right of cross-examination of the juvenile who filed the complaint. State v. Parnes, 134 N.J. Super. 61, 63 (App. Div. 1975); see also In re A.S., 130 N.J. Super. 388, 392-393 (Cty. Ct. 1974). In short, plaintiff must choose: either he leaves the events evidenced in the expunged records in the obscurity from which a trial, with its attendant discovery, may draw them, or he must expose them in full for trial purposes. He cannot do both. See United States v. Andolschek, 142 F.2d 503, 506 (2 Cir.1944). By our holding we do not undermine the protection afforded by N.J.S.A. 2A:85-17(b). The person whose records are expunged can still insist upon their inviolability and strict enforcement of the order of expungement. He 258 cannot, however, insist upon their continued unavailability while, at the same time, depriving defendants of materials possibly relevant to their defense. The shield of expungement cannot be converted into a sword upon which to impale defendants in malicious prosecution suits. Law enforcement authorities, cognizant of the possibility of such civil actions following an arrest, can require a covenant against such suits as a condition to their consent (or lack of objection) to expungement. See State v. San Vito, supra. No similar opportunity is afforded the private litigant since the latter is not notified of the application for expungement. His exposure to civil action is, however, as real as that of the officer making the arrest; the same means of making defense to such charges should be made available to him. The Legislature could not have intended otherwise. We, therefore, reverse the trial court order denying defendants access to the expunged records. The matter is remanded to the trial court for a hearing, on the record, in which plaintiff will be asked whether he consents to defendant's request for access to the expunged records. If he refuses to consent, the complaint should be dismissed. If he consents, the court should order the custodian to release the records to defendants or their counsel only and provide for their return after inspection or copying. Defendants and their counsel should be placed on notice in the order that disclosure of the contents of the expunged records to any other person, except during the course of trial or pretrial depositions conducted in connection therewith, will constitute contempt of court and may, in addition, subject them to civil suit for damages resulting from disclosure in violation of the limitations contained in the order. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510366/	588 S.W.2d 854 (1979) Richard DICKERSON et al., v. B. W. REEVES et al. No. 5327. Court of Civil Appeals of Texas, Eastland. October 11, 1979. Rehearing Denied November 1, 1979. 855 Walter J. Woodman, Shreveport, La., for appellants. David R. Norton, Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellees. DICKENSON, Justice. The question is whether an employee "deviated" from his employment by lighting a cigarette while working at his regularly assigned job. The employer, Venus Marble Company, is a partnership composed of Richard Dickerson and John Price. B. W. Reeves and Carl McGee owned the property which was damaged by the fire. The jury found that the partnership's employee, Larry Dickerson, "was engaged in the service of Venus Marble Company and in furtherance of its business" at the time of the occurrence. The jury also found that "he was deviating" from the service of Venus Marble Company and the furtherance of its business. The trial court disregarded the finding of deviation under Tex.R.Civ.P. 301 and entered judgment on the remainder of the verdict for the property owners against the partnership and its employee. The partners appeal. We affirm. If there were evidence to support the jury's finding of deviation, there would be a conflict with the finding that the employee was engaged in the furtherance of the partnership's business. This would require a reversal under the test which is stated in Little Rock Furniture Manufacturing Company v. Dunn, 148 Tex. 197, 222 S.W.2d 985, at 991 (1949), as follows: [If] one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. The partners' first point of error controls the disposition of this case. The first point contends that the trial court erred in disregarding the jury's finding that the employee was deviating. We disagree. Under Tex.R.Civ.P. 301 the trial court was authorized to disregard this finding if it "has no support in the evidence." In considering this point we have considered only the evidence and inferences which support the finding of deviation, rejecting the evidence and inferences which are contrary to that finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). The partners admit that Larry Dickerson was employed by Venus Marble Company and that his duties included the work which he was doing at the time of the fire; however, they argue that Larry deviated from his employment by smoking while he worked. We disagree. Larry was an experienced employee who had gone to work for Venus Marble Company when it was formed. His uncle was one of the partners. Larry was working in the pouring room on October 10, 1974, when the fire occurred. He had been told not to smoke in the pouring room, and there were "no smoking" signs in that room. Larry had used acetone, a flammable substance, to clean wax off the mold where marble dust is poured and mixed with chemicals to manufacture 856 marble counters and sinks. He had finished cleaning the mold about fifteen minutes before he began to apply a fresh coat of wax to the mold. Larry was smoking at the same time he was waxing the mold. He had not taken a break. He threw a match on the floor, and the fire ignited and spread. The partners cite Dobson v. Don January Roofing Co., Inc., 392 S.W.2d 153 (Tex.Civ. App.Tyler), writ ref'd n. r. e. per curiam, 394 S.W.2d 790 (Tex.1965). The Tyler Court held that the roofing company could not be charged with liability for the negligence of its servant "since the smoking of the cigarette by the employee while working was not in the course of his employment." The Supreme Court's per curiam opinion states: "[O]ur refusal of writ of error is not to be regarded as an approval of the holding made the basis of the Court of Civil Appeals judgment." The Tyler Court's opinion in Dobson relies on Feeney v. Standard Oil Co., 58 Cal. App. 587, 209 P. 85 (1922). Feeney was overruled by George v. Bekins Van & Storage Co., 33 Cal. 2d 834, 205 P.2d 1037 (1949). See also De Mirjian v. Ideal Heating Corporation, 129 Cal. App. 2d 758, 278 P.2d 114, at 120 (1954). The Tyler Court's opinion in Dobson cites Restatement of the Law, Second, Agency § 235 which states: An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed. It should be noted that one of the illustrations applying that rule is as follows: A is delivering gasoline for P. He lights his pipe and negligently throws the blazing match into a pool of gasoline which has dripped upon the ground during the delivery and which ignites. For the resulting harm, P. is subject to liability. In our case it is acetone, a flammable substance, which was used by the employee in connection with his work for the partnership. The employee negligently threw the match near that flammable substance. The employer is liable. We note that the Restatement of the Law, Second, Agency § 236 states: Conduct may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person. This rule includes the situation, as here, in which the employee, while engaged in his master's work, is at the same time accomplishing a purpose of his own, such as lighting a cigarette while working. The Restatement of the Law, Second, Agency § 230 states: An act, although forbidden, or done in a forbidden manner, may be within the scope of employment. A master cannot avoid responsibility to third parties for the negligence of his servant by telling him to act carefully. See Bass v. Metzger, 569 S.W.2d 917, at 924 (Tex.Civ.App.Corpus Christi 1978, writ ref'd n. r. e.), and authorities cited therein. See also "Annotation, Master's Liability for Fire Allegedly Caused by Servant's Smoking," 20 A.L.R. 3d 893 (1968). We decline to follow the holding of the Tyler Court in Dobson. The partners also cite Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506 (1951). In that case it was clear that the employee "had stepped aside from his duties" and that the act of throwing a lighted match into a stream of gasoline "was something wholly disconnected from his employment." Burgdorf is not applicable to the facts of this case. Appellees cite McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941), where an employee struck a match to light a cigarette while he was inspecting a gas pipe line which was leaking gas into the air, causing an explosion which injured the plaintiff. Our Supreme Court stated: It is the settled law of this State that, in a negligence action, in which the defendant's liability to the plaintiff depends upon proof of master and servant relationship *857 between the defendant and a third person, such relationship is prima facie established by showing that the alleged servant was performing services peculiar to the defendant's business or affairs on or about the latter's property.... if Joe Woods was an agent or servant of Travis Gas Corporation acting within the scope of his employment in inspecting or examining this pipe line, his act in striking the match which caused this explosion would be directly chargeable to the pipe line corporation. Since Larry Dickerson was acting in the course of his employment while waxing the mold, his act of striking the match which caused the fire is chargeable to the partnership by which he was employed. He had not taken a break or turned aside from his job. He was smoking while he worked. The other points of error have been considered, and they are overruled. The judgment of the trial court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510364/	160 F.2d 754 (1947) UNITED STATES v. SUTTER. No. 9268. Circuit Court of Appeals, Seventh Circuit. April 22, 1947. Robert V. Conners, and Conners, Eckert & Limperis, all of Chicago, Ill., for appellant. 755 J. Albert Woll, U. S. Atty., and Jack Arnold Welfeld, Ass't U. S. Atty., both of Chicago, Ill., for appellee. Before MAJOR, KERNER, and MINTON, Circuit Judges. MINTON, Circuit Judge. The defendant-appellant was indicted on twelve counts for a violation of Section 85 of the Criminal Code, 18 U.S.C.A. § 171, which is set forth in the margin.[1] A motion to quash the indictment was overruled, and the case was submitted to a jury for trial. During the course of the trial the Government dismissed Counts Six and Ten. At the conclusion of all the evidence, the defendant made a motion for a directed verdict of acquittal which was denied. The jury found the defendant guilty on all 10 counts, and judgment was entered thereon. From this judgment the defendant has appealed. The errors assigned are the overruling of the motion to quash, the overruling of the motion for a directed verdict, and refusal to give certain requested instructions. Each count of the indictment charged that the defendant did "under the color of such employment by the United States, willfully, knowingly, unlawfully and corruptly, for the sake of gain and for his own benefit and advantage, and contrary to the duties of said employment, ask, demand, extort and receive" certain sums of money from designated persons. We think the indictment is sufficient. It charged the offense substantially in the words of the statute. A conviction could not be had without proving that the defendant was an employee of the United States who under the color of his employment was guilty of extortion. There are averments in the indictment not necessary, but they may be considered as surplusage and ignored. We pass to a consideration of the evidence challenged by the motion for a directed verdict of acquittal. Considering the evidence in the light most favorable to the Government, which evidence is without contradiction, the record shows that the defendant was employed by the United States in the Gauge Procurement Section of the Chicago Ordnance District, a division of the War Department. Just what his duties were is not clear from the record, but such duties related to the procurement of certain gauges. It was not a part of the defendant's duties to solicit funds for any cause, nor was he authorized to do so. He did have contacts with manufacturers who were making gauges for the Chicago Ordnance District. The defendant was shown on said contacts to have solicited funds from gauge manufacturers in the Chicago District allegedly for a magazine fund for returned injured veterans; for the Christmas Fund for the office employees; for the relief of a deceased colonel's widow; for disabled veterans; and for several similar charitable causes. It does not appear under what circumstances the funds were solicited. No one testified that the defendant employed any threats, demands, or pressure, nor was there a scintilla of evidence that he had used his position with the United States to solicit or receive any money. His employment with the United States was only a condition that was present but was not used. There is no evidence that the defendant was on duty when he solicited the funds or that while he was dealing with the contributors he took any advantage of his position as an employee of the United States in order to obtain such funds. The funds were voluntarily contributed. The donors did testify that if they had known that the defendant was going to keep the money, they would not have contributed. It is not disputed that the defendant kept 756 the money. When offered a check in some instances, the defendant requested and received cash. All that appears is that he was a Government employee who had solicited funds for worthy causes from people who were doing business with the branch of the Government by which he was employed, and that he had kept the money. The statute in question does not purport to punish a Federal employee for soliciting and receiving money, which money he appropriates to his own use.[2] The statute in question does not purport to punish a Federal employee who is guilty of fraud nor does it purport to punish a Federal employee who is guilty of extortion. The Federal employee may use a gun or blackmail to extort and he would not be liable under this statute, but he may not use his position with the United States. The statute seeks only to punish an employee who uses his position of employment with the United States to extort, and it does not define extortion. It is the abuse of position in the Government that this statute would punish, and the act of abuse is the use of official position to extort. Under this statute the two essential elements are first, that a Federal employee use his position of employment with the United States, and secondly, that such employee be guilty of extortion. To obtain a conviction, the Government would have to prove these two elements of the offense. At common law, if a public employee under color of his office demanded and received money or a thing of value to which he was not entitled, he was guilty of extortion. LaTour v. Stone, 139 Fla. 681, 190 So. 704; State v. Anderson, 66 N.D. 522, 267 N.W. 121, 123. See United States v. Laudani, 3 Cir., 134 F.2d 847, 851. There are no common law crimes within the jurisdiction of the Federal Government. In the Federal jurisdiction crimes are defined by act of Congress. Viereck v. United States, 318 U.S. 236, 241, 63 S. Ct. 561, 87 L. Ed. 734; Donnelley v. United States, 276 U.S. 505, 511, 48 S. Ct. 400, 72 L. Ed. 676; United States v. Eaton, 144 U.S. 677, 687, 12 S. Ct. 764, 36 L. Ed. 591. Congress did not see fit to define extortion in the terms known to the common law. It said that if an employee under color of his office is guilty of extortion, he shall be punished. Therefore, extortion is used in its common, ordinary sense as distinguished from the sense in which it was known at common law. Extortion is defined by Webster as the "* * * act or practice of taking or obtaining anything from a person by illegal use of fear, whether by force, threats, or any other undue exercise of power * * ." Webster's New International Dictionary, Second Edition, Unabridged (1942). If the statute in question had defined extortion as it was known at common law, it would have been sufficient if it had provided: "An employee of the United States who under the color of his office receives money or anything of value to which he is not entitled shall be guilty of extortion." In the common law offense of extortion, color of public office took the place of the force, threats, or pressure implied in the ordinary meaning and understanding of the word extortion. The instant statute requires more. It does more than substitute color of office for fear, threats, or pressure. The use of official position must be coupled with extortion. Under this statute, a Federal employee is guilty only if he uses his office to place another under compulsion of fear, force, or the undue exercise of power, so that such person parts with something of value unwillingly and involuntarily. It is the oppressive use of official position that is the essence of this offense. Official acts must be committed which cause another to act by reason of the pressure therefrom and not of his own volition. Daniels v. United States, 9 Cir., 17 F.2d 339, 342. In the instant case the contributors not only testified that they contributed freely and voluntarily, but they said that they would not have contributed if they had known the defendant was going to keep the money, 757 which seems to us the antithesis of extortion. In our view of the case, the evidence wholly fails to show that the defendant used his employment to extort, but shows rather that he used appealing causes to defraud. The statute in question does not cover such an offense. The motion for a directed verdict should have been granted. No question is presented as to the instructions as it is not shown that before the jury retired the defendant objected to the refusal to give the instructions he requested, stating distinctly the matter to which he objected and the grounds of his objection, as required by Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687. The judgment of the District Court is reversed. NOTES [1] "Every officer, clerk, agent, or employee of the United States, and every person representing himself to be or assuming to act as such officer, clerk, agent, or employee, who, under color of his office, clerkship, agency, or employment, or under color of his pretended or assumed office, clerkship, agency, or employment, is guilty of extortion, and every person who shall attempt any act which if performed would make him guilty of extortion, shall be fined not more than $500 or imprisoned not more than one year, or both." (R.S. Sec. 5481; June 28, 1906, c. 3574, 34 Stat. 546; Mar. 4, 1909, c. 321, Sec. 85, 35 Stat. 1104.) [2] Certain classes of Federal employees are guilty of an offense under other Federal statutes if they merely receive money unlawfully under color of their office. See 26 U.S.C.A. Int.Rev.Code, § 4047(e); 19 U.S.C.A. § 60; 18 U.S. C.A. § 330.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510367/	372 A.2d 998 (1977) Bobbie A. BRANCH a/k/a Andrew B. Branch, Appellant, v. UNITED STATES, Appellee. No. 10513. District of Columbia Court of Appeals. Argued January 17, 1977. Decided April 19, 1977. 999 Winthrop N. Brown, Washington, D.C., appointed by the court, for appellant. C. Madison Brewer, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Albert H. Turkus, and Robert E. Hauberg, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Before NEWMAN, Chief Judge, and KELLY and KERN, Associate Judges. KELLY, Associate Judge: Appellant Branch seeks reversal of his conviction of second-degree burglary on the ground that a sixteen-month delay between arrest and trial violated his constitutional right to a speedy trial. We conclude that this claim of error has merit, and we reverse. Appellant and one Samuel Bynum were arrested on a warrant on August 2, 1974, and were indicted for second-degree burglary and grand larceny on December 20.[1] Thereafter, a series of continuances and status hearings delayed the scheduled trial until April 16, 1975.[2] On that day the government announced it was unprepared for trial and requested still another continuance. Instead, the court granted appellant's motion to dismiss for want of prosecution. The dismissal was to be without prejudice. A second identical indictment of appellant was filed on September 24, 1975, and on December 5, he was convicted of second-degree burglary. Barker v. Wingo, 407 U.S. 514, 529, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), places 1000 the burden of assuring that criminal cases be promptly tried on the courts and on the government. A four-pronged balancing test is established for determining whether an accused has been denied a speedy trial, viz: (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right by the defense, and (4) the prejudice to the accused. We consider these factors, seriatim, as they relate to this case. LENGTH OF DELAY A delay of a year or more between arrest and trial gives prima facie merit to a claim that an accused has been denied the right to a speedy trial. United States v. Mack, D.C.App., 298 A.2d 509, 511 (1972); United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, cert. denied 404 U.S. 942, 92 S. Ct. 292, 30 L. Ed. 2d 257 (1971); Hedgepeth v. United States, 124 U.S.App. D.C. 291, 364 F.2d 684 (1966).[3] A heavy burden then shifts to the government to justify the delay. Smith v. United States, 135 U.S.App.D.C. 284, 418 F.2d 1120, cert. denied, 396 U.S. 936, 90 S. Ct. 280, 24 L. Ed. 2d 235 (1969). Prejudice to the defendant need not be affirmatively shown after such lengthy delay, United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887 (1972),[4] and the longer the delay and the less serious the offense, the heavier the government's burden will be. United States v. Holt, supra.[5] The remedy for the denial of the right to a speedy trial is dismissal of the indictment. Barker v. Wingo, supra 407 U.S. at 522, 92 S. Ct. 2182; Strunk v. United States, 412 U.S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973). The government's claim that the four and one-half months between dismissal of the first indictment and the filing of the second should be disregarded in computing the length of the delay here is baseless; hence, the government must satisfactorily explain the sixteen-month delay between appellant's arrest and his trial. REASON FOR THE DELAY The government, citing United States v. Bishton, supra, argues that the period from April 16 to September 24, 1975 should not be counted in measuring the trial delay because appellant was not an "accused" during that time.[6] However, while neither opinion is binding on this court,[7] we deem the situation here more analogous to that in United States v. Lara, 172 U.S.App.D.C. 60, 520 F.2d 460 (1975). In an attempt to justify the delay the government explains that in addition to the instant charges it desired to indict appellant for the murder of Lanxter Keys and had investigated the possibility of so indicting appellant until December 20, 1974, when the grand jury returned the present indictment for burglary and grand larceny. Thereafter, apparently reluctant to try the case, the government announced 1001 on April 16, 1975 that despite a series of prior continuances it was not yet ready for trial.[8] Instead, the court dismissed the charges for want of prosecution without prejudice. On May 5, 1975, Bynum was convicted in the federal court of felony murder and various kidnapping offenses. The government had hoped until the trial that Bynum would cooperate in helping to indict appellant for murder,[9] but Bynum steadfastly refused to do so. It eventually abandoned its efforts and appellant was reindicted for burglary and grand larceny on September 24, 1975. In a transparent effort to elicit sympathy for its argument on appeal, the government includes in its brief a lengthy description of the grisly details of the Keys murder as they were brought out in Bynum's trial. We concur in appellant's protestation that these distasteful facts are irrelevant to the issue of whether the government has justified its delay in bringing appellant to trial in Superior Court for burglary. It is clear to us that however sincere the government's desire to try appellant for the murder of Lanxter Keys, the fact is that the delay of appellant's trial for burglary was deliberate and unjustified. It was caused by the government for the government's own benefit. Neither appellant nor the judicial system are chargeable with any of the sixteen months which elapsed. The government refused to go to trial on April 16, 1975, in the lingering hope that Bynum would implicate appellant in the Keys murder. When he did not, and was himself convicted on May 5, the government waited yet another four months, one month after Bynum was sentenced, to reindict appellant. See United States v. Young, D.C.App., 237 A.2d 542 (1968). In United States v. Lara, supra, the government dismissed an indictment in the District of Columbia and nine months later filed an identical indictment in Florida. Nineteen months elapsed between the filing of the first indictment and the trial. To justify its dismissal of the District of Columbia indictment, the government said that one of its witnesses had been shot and another had proved unreliable. The court found these reasons inadequate, however, stating that the government simply wanted to try the case in the more advantageous judicial climate of Florida. It held that the ensuing delay was for the tactical advantage of the government and was chargeable to the government despite the fact that for nine of the nineteen months the defendants were not under indictment and for the other ten they were free on bail. It held, also, that prejudice was created by the lapse of time per se. United States v. Lara, supra, 172 U.S.App. D.C. at 65, 520 F.2d at 465. United States v. Bishton, supra, can be distinguished from this case and from Lara, for in Bishton the government was charged with less than a year of the twenty month delay between indictment and trial. While the court thought it significant that for three months of this period the defendant was not an "accused", i. e., was not under arrest or indictment, it recognized that the holding in United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), concerning a period before arrest or indictment has less force when applied to the time span between dismissal without prejudice of one indictment and the filing of a second identical one. United States v. Bishton, supra, 150 U.S.App.D.C. at 55, 463 F.2d at 891. It also acknowledged dicta in Marion to the effect that a delay in either filing an indictment against or effecting the arrest of an accused may be prejudicial. Id. We conclude, therefore, following the analysis of Lara, that the time between indictments, the dismissal of appellant's first and the filing of the second, is a delay properly chargeable to the government. 1002 ASSERTION OF THE RIGHT The government argues that whatever the merits of appellant's claim, he cannot be heard to complain since he made no formal motion to dismiss until two days before trial. When a defendant is incarcerated, however, the government must assume he wants a speedy trial unless he asserts otherwise. United States v. Calloway, 164 U.S.App.D.C. 204, 210, 505 F.2d 311, 317 (1974). In addition, a motion for release is to be construed as the functional equivalent of a motion for speedy trial. Id. Here appellant was incarcerated for nine of the sixteen months between arrest and trial because he was unable to raise bond, although he had moved for and had been granted a reduction in bond. Furthermore, he moved to dismiss for lack of prosecution on April 16, 1975, and the motion was granted. Under these circumstances, it cannot seriously be contended that appellant failed adequately to assert his right to a speedy trial. PREJUDICE TO THE DEFENDANT In Barker v. Wingo, supra, the Court explains the interests of an accused which are prejudiced by the lack of a speedy trial. Two the protection from oppressive incarceration and a minimum of anxiety and concern are personal. Appellant suffered prejudice on both accounts here. Appellant was jailed from August 1974 to April 1975, eight months of what the Supreme Court has called "dead" time, i. e., time in which a defendant neither sees nor supports his family, time during which he would likely lose his job, and time which is not spent constructively in any way. See Barker v. Wingo, supra, 407 U.S. at 532-33, 92 S. Ct. 2182. Incarceration was thus detrimental both to appellant as an individual and to his ability to prepare his defense. Furthermore, the delay occasioned by the government's failure to try the case in April 1975, heightened appellant's concern and anxiety, for even though he was free for five months, the possibility of reindictment remained. His situation was not unlike being free on bond, i. e., not without limitations being placed upon his liberty. See Klopfer v. North Carolina, 386 U.S. 213, 221-22, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). A third interest which may be prejudiced is impairment of a defense. In this case defense counsel said at trial on December 4, 1975, that he had intended to call two witnesses who would testify that appellant was in a bar on the day of the burglary when Bynum approached him and asked him to help move some furniture. One of these witnesses could not be located at the time of trial and the other could not recall such a conversation. Whether such a conversation ever took place may be pure speculation as the government says; yet, the disappearance of witnesses or their loss of memory during the delay of trial is obviously prejudicial. Barker v. Wingo, supra, 407 U.S. at 532, 92 S. Ct. 2182, 2193. And loss of memory "is not always reflected in the record because what has been forgotten can rarely be shown." Id. Thus, it is impossible on the record to say that the passage of time did not impair appellant's defense. CONCLUSION We have weighed the factors and surrounding circumstances of the case, including the nature of the offense of which appellant was accused, and conclude that the government clearly failed to refute appellant's prima facie claim of denial of speedy trial raised by the lapse of more than a year between arrest and trial. Accordingly, the judgment of conviction of second-degree burglary is reversed, and the case is remanded with instructions that the indictment be dismissed. So ordered. NOTES [1] D.C. Code 1973, §§ 22-1801(b) and -2201, respectively. The facts, in the words of the government, were: On the evening of July 27, 1974, police were summoned to the apartment complex at 3339 10th Place, S.E., after the resident manager discovered two men moving furniture out of the apartment where Lanxter Keys resided. The police ascertained that the men were appellant and Samuel Bynum. Mr. Keys could not be located. The men were directed to return the furniture to the apartment. The officers then let the men go about their business. It was later ascertained that the body of Lanxter Keys had been found in a park in Brooklyn, New York, on July 16. Arrest warrants were then obtained. Appellant and Bynum were apprehended on August 2, 1974, and charged with burglary in the Superior Court for the District of Columbia. [Govt. Br. at 2.] [2] Bynum's case was severed from that of appellant on March 11, 1975. Bynum was ultimately tried for murder in the federal court. [3] It has been said that a delay of over six months warrants inquiry and justification. United States v. Ransom, 151 U.S.App.D.C. 87, 465 F.2d 672 (1972). A seven and one-half month delay has been held by this court to be a denial of the right to a speedy trial. United States v. Young, D.C.App., 237 A.2d 542 (1968). [4] "Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial. . . ." [Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183 (1973).] [5] The Court in Barker said that "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker v. Wingo, supra at 531, 92 S. Ct. 2192. This factor was taken into account in United States v. West, 164 U.S.App. D.C. 184, 504 F.2d 253 (1974), where it was held that dismissal of the indictment is required when the defendant was in custody for 13 months, the crime was not violent, the issues of law and fact were not complicated and court congestion was the cause of the delay. [6] The defendants in United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), attempted to include a three year preindictment, prearrest period during which the government allegedly knew of their offenses in computing length of delay. The Court declined to include this time in evaluating a speedy trial claim, but that factual situation is distinguishable. [7] See M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971). [8] Counsel speculated at oral argument that the government may have been reluctant to try appellant for burglary fearing that if he were acquitted it may not have been able to use the same evidence in a later homicide trial. [9] Even during Bynum's trial the government offered him a plea to second-degree murder in exchange for his testimony against appellant.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510368/	821 F. Supp. 851 (1993) Joyce VORVIS, Plaintiff, v. SOUTHERN NEW ENGLAND TELEPHONE COMPANY and Frank Kulaga, Defendants. Civ. No. 3-91-CV-351 (WWE). United States District Court, D. Connecticut. May 25, 1993. 852 Edward J. Dolan, Vincent N. Amendola, Jr., Greenberg & Costa, New Haven, CT, for plaintiff. Margaret P. Mason, Jacqueline D. Bucar, Tyler, Cooper & Alcorn, New Haven, CT, David A. Ryan, Jr., Summa & Ryan, P.C., Waterbury, CT, for defendants. RULING ON MOTION TO DISMISS EGINTON, Senior District Judge. This action was removed to this court based on diversity of citizenship[1] and federal 853 question jurisdiction.[2] Defendant has moved to dismiss the complaint, which contains state law claims arising out of her alleged mistreatment in the workplace. For the reasons stated below, the motion to dismiss will be granted in part and denied in part. FACTS Plaintiff, Joyce Vorvis, was employed by defendant, Southern New England Telephone Company ("SNET"), from July 13, 1981 to June 2, 1989, under the terms and conditions of an employment contract. Frank Kulaga was her direct supervisor beginning September 1, 1988. From this time until the end of her employment, plaintiff alleges that she was subjected to extreme and outrageous harassment by Kulaga. She claims he continually subjected her to verbal abuse and caused her to work extra hours without compensation. She alleges that Kulaga made at least one false verbal statement about her job performance, which, along with the harassment, damaged her reputation. She alleges that Kulaga unfairly disciplined her for certain incompleted work assignments. As a result, she claims she suffered physical and emotional harm and was forced to leave her job on June 2, 1989. Defendants benefited from her departure, she contends, because SNET was in the process of reducing its workforce. The first amended complaint contains eight counts. Count I alleges intentional infliction of emotional distress against Kulaga. Count II alleges intentional infliction of emotional distress against SNET as Kulaga's employer, and seeks punitive damages because of Kulaga's malicious or wanton conduct. Count III alleges negligence against Kulaga, which negligence caused emotional distress. Count IV seeks damages from SNET for ratifying Kulaga's conduct and for not terminating him. Count V alleges negligence against SNET for its failure to supervise or control its employee. Count VI alleges intentional interference with a contract against Kulaga concerning the employment contract between plaintiff and SNET. Count VII alleges slander against Kulaga. Count VIII alleges invasion of privacy against Kulaga. Plaintiff does not allege that she filed a grievance under the employment contract or otherwise exhausted the pertinent grievance procedures. Rather, she argues that in this action, her state law tort claims are independent of her rights under the employment contract. Defendants move to dismiss the amended complaint on the following grounds: (1) that plaintiff's claims are preempted by 29 U.S.C. § 185, as arising out of a collective bargaining agreement, and that the statute of limitations for claims under 29 U.S.C. § 185 has expired; (2) in the alternative, that plaintiff's claims are barred by the Connecticut Worker's Compensation Law, Conn.Gen.Stat. § 31-275 et seq.; and (3) that plaintiff has failed to state a claim upon relief can be granted. DISCUSSION In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, a court is under a duty to determine whether the plaintiff has a valid claim under any possible theory. A motion to dismiss should not be granted "unless it appears beyond a doubt" that the plaintiff cannot support a claim entitling it to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 101, 2 L. Ed. 2d 80 (1957). The pleader, however, must set forth sufficient information to outline the elements of the claim or to permit inferences to be drawn that these elements exist. For the purposes of a motion to dismiss, the court must take the allegations of the complaint as true and construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). 1. Preemption by LMRA Defendants contend that while plaintiff was employed at SNET, she was covered by a collective bargaining agreement. They argue 854 that her mistreatment claims are preempted by federal statutory law, § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and can be pursued only through the agreement's grievance procedure. Vorvis does not dispute that she was covered by an employment contract. First Amended Complaint, Count VI, at 9. However, she argues that her claims transcend the employment relationship and thus are independent of the employment contract. Section 301 of the LMRA governs actions by an employee against an employer for breach of a collective bargaining agreement. Dougherty v. American Telephone and Telegraph Co., 902 F.2d 201, 203 (2d Cir.1990). Section 301 provides in pertinent part: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). That section has been construed to permit individual employees to bring suit in federal court against employers. See Smith v. Evening News Ass'n, 371 U.S. 195, 83 S. Ct. 267, 9 L. Ed. 2d 246 (1962); Dougherty v. American Telephone and Telegraph Co., 902 F.2d 201, 203 (2d Cir.1990). Before bringing such an action, the employee must exhaust grievance procedures provided by the relevant collective bargaining agreement. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S. Ct. 1048, 1056, 47 L. Ed. 2d 231 (1976); Dougherty, 902 F.2d at 202. There are exceptions to the exhaustion requirement. One is where the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance. Vaca v. Sipes, 386 U.S. 171, 186, 87 S. Ct. 903, 914, 17 L. Ed. 2d 842 (1967). This does not apply here because plaintiff did not attempt to pursue the grievance procedure. Another exception is where the federal interest in uniform interpretation of collective bargaining agreements preempts certain state law tort actions. Dougherty, 902 F.2d at 203. In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 105 S. Ct. 1904, 1910-11, 85 L. Ed. 2d 206 (1985), the Supreme Court held that § 301 preempted an employee's state law tort claim for breach of a duty to act in good faith in paying disability benefits. It held that the preemptive effect of § 301 regarding contractual issues extends beyond suits alleging contract violations to suits alleging liability in tort. State law rights and obligations that do not exist independently of private agreements and that as a result can be waived or altered by an agreement of private parties, are preempted by those agreements. However, not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is preempted by § 301 or other provisions of federal labor law. The test is whether the state tort law purports to define the meaning of the contract relationship. If it does, that law is preempted. Allis-Chalmers, 471 U.S. 202 at 211-13, 105 S. Ct. 1904 at 1911-12. In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988), the Supreme Court held that a state law action alleging retaliatory discharge for filing a workers' compensation claim was independent of the collective bargaining agreement and therefore was not preempted by federal law. A state law claim is independent of the collective bargaining agreement for § 301 preemption purposes so long as the state law claim can be resolved without interpreting the agreement itself. Lingle, 486 U.S. 399 at 410, 108 S. Ct. 1877 at 1883. Here, the gravamen of the amended complaint is plaintiff's alleged mistreatment in the workplace. She claims that Kulaga's actions constituted intentional infliction of emotional distress, negligent infliction of emotional distress, invasion of privacy, defamation, and tortious interference with a contract. Her claims against SNET are based upon SNET's responsibility for the individual acts of Kulaga. 855 The court finds that none of the plaintiff's state law claims require this court to construe her employment contract or any collective bargaining agreement which might have been in effect at the time of her employment. Therefore, no counts of the amended complaint are preempted by the LMRA. Lingle, 486 U.S. at 405, 108 S.Ct. at 1881. 2. Intentional Infliction of Emotional Distress (Counts I, II) In Counts I and II, plaintiff alleges intentional infliction of emotional distress against Kulaga and SNET. She claims that from September 1, 1988 through June 2, 1989, SNET intentionally directed Kulaga to treat her in such a way as to cause severe emotional distress which would lead to her departure from SNET. This treatment began after she returned from foot surgery and while she was coping with the illness and death of her sister. The treatment allegedly took place almost every day for a period of over one year, and included chastising, criticism, humiliation in front of coworkers, threats to fire her, extra work assignments for the purpose of causing anxiety, uncompensated work on weekends and evenings, unwarranted vulgar remarks, and disciplinary actions for matters beyond her control. As a result, plaintiff allegedly suffered various physical and psychological injuries, including: tachycardia, fear, crying spells, insomnia, nervousness, headaches, nausea, depression, fear of future injuries, mental pain and anguish, loss of her job, inability to function with coworkers, and loss of work and personal relationships with coworkers. The exclusivity provision of the Connecticut Worker's Compensation Act provides that: An employer shall not be liable to any action for damages on account of personal injury sustained by a employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct between employer and employees ... Conn.Gen.Stat. § 31-284(a). Under the Workers' Compensation Act, an employee surrenders his or her right to bring commonlaw action against employer. DeSantis v. Gaudioso, 39 Conn. Super. Ct. 222, 476 A.2d 149 (1983). Intentional tort claims are not barred if the actor is acting with the knowing authorization of the employer. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). Thus, a claim will not be barred by the Workers' Compensation Act where the tort is intentional and where the defendant employer directed the supervisor to commit the tort. Here, the exception for "personal injury ... caused by the wilful and serious misconduct between employer and employees" applies as to plaintiff's claims of intentional infliction of emotional distress. Plaintiff alleges an intentional tort that was knowingly authorized by the actor's employer. Thus, the Worker's Compensation Act does not bar this cause of action. The next step is to determine whether plaintiff has made a claim for intentional infliction of emotional distress. Viewing the allegations in the complaint in the light most favorable to the plaintiff, the court finds that she does. Plaintiff has alleged in the complaint that: (1) defendant intended or knew that emotional distress would likely result from defendant's conduct; (2) defendant's conduct was extreme or outrageous; (3) defendant's conduct caused plaintiff's distress; and (4) plaintiff's emotional distress was severe. Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). Accordingly, the motion to dismiss must be denied as to Counts I and II. 3. Negligent Infliction of Emotional Distress (Counts III-V) Plaintiff alleges negligent infliction of emotional distress against Kulaga in Count III, and against SNET in Counts IV and V. In Count III she claims that Kulaga unreasonably mistreated her as described above. In addition, she claims that he acted with the knowledge that the plaintiff was peculiarly susceptible to emotional distress, that he 856 abused his position of authority, and that he should have realized that his conduct involved an unreasonable risk of causing emotional distress which might result in illness or bodily injury. In Count IV, plaintiff alleges that damages should be imposed on SNET because SNET authorized Kulaga's conduct, was reckless in retaining Kulaga after learning of his proclivities to engage in abusive conduct, and was the employer of the employee who committed the tort. In Count V, plaintiff alleges negligent infliction of emotional distress against SNET. She claims that SNET failed to supervise or control Kulaga, its employee, and that SNET knew or should have known that he was likely to engage in such conduct. She claims that SNET failed to recognize Kulaga's incompetency as a supervisor, and that plaintiff suffered extreme emotional distress as a direct and proximate cause of SNET's negligence. Under Connecticut law, the issue of compensability under the Workers' Compensation Act is determined by whether or not the worker's injury is one "arising out of and in the course of employment." Williams v. Avco Lycoming, Div. of Textron, Inc., 755 F. Supp. 47, 51 (D.Conn.1991) (Workers' Compensation Act barred claim against employer for negligent infliction of emotional distress where plaintiff's alleged injuries arose out of and in the course of his employment); cf., Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 609 A.2d 1034 (1992), app. gr. in part, 223 Conn. 917, 614 A.2d 821 (1992) (Worker's Compensation Act did not bar claim against employer for negligent infliction of emotional distress where alleged distress arose out of plaintiff's discharge, not out of conditions of his employment). In the instant case, plaintiff's claim for negligent infliction of emotional distress is barred by the Connecticut Worker's Compensation Act because her alleged injuries arose out of and in the course of her employment, and because the exception for intentional torts does not apply. Therefore, the motion to dismiss Counts III, IV, and V alleging negligent infliction of emotional distress must be granted. 4. Tortious Interference with a Contract (Count VI) In Count VI, plaintiff claims tortious interference with a contract. She alleges that Kulaga knew of the employment contract and intended to interfere with the contract for his own benefit, in order to encourage plaintiff to quit her job. She alleges that he mistreated her, as detailed above, and that his conduct caused her to voluntarily terminate her employment. Plaintiff fails to allege that the employer, SNET, directed Kulaga to commit the tort. Therefore, the Worker's Compensation Act bars the tortious interference with a contract claim, even though it is an intentional tort. See Jett v. Dunlap, 179 Conn. at 217, 425 A.2d 1263 (intentional tort claim is barred unless the actor is acting with the knowing authorization of the employer). Thus, the claim is barred because the exception in the Workers' Compensation Act exclusivity provision for intentional torts does not apply. Accordingly, the motion to dismiss Count VI must be granted. 5. Slander (Count VII) In Count VII, plaintiff alleges that defendant made false and malicious statements in front of coworkers about her role in a malfunction of telecommunications services in Waterbury. As a result, her reputation suffered. The Workers' Compensation Act bars the slander claim because although she alleges an intentional tort, she does not allege that the tort was committed with the knowing authorization of the employer. Therefore, the motion to dismiss as to Count VII must be granted. 6. Invasion of Privacy (Count VIII) In Count VIII, plaintiff alleges that Kulaga's abusive conduct detailed in Count I amounted to invasion of the plaintiff's privacy. This tort is not barred by the Workers' Compensation Act because it is an intentional tort and the complaint alleges in Count I that 857 Kulaga's tortious actions were committed with the knowing authorization of the employer. The next step is to determine whether plaintiff has made a prima facie claim for invasion of privacy. Viewing the complaint in the light most favorable to the plaintiff, the court finds that she has not. Connecticut recognizes four distinct categories of invasion of privacy. One of these is "unreasonable intrusion upon the seclusion of another." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127, 448 A.2d 1317 (1982). Here, plaintiff alleges that the defendant unreasonably intruded upon her seclusion. No facts are alleged, however, to support this characterization. Plaintiff therefore states no claim for invasion of privacy. Accordingly, the motion to dismiss Count VIII must be granted. CONCLUSION For the reasons stated above, the motion to dismiss is GRANTED as to Counts III through VIII, and DENIED as to Counts I and II. NOTES [1] Plaintiff is a resident of Florida. Southern New England Telephone Company is a Connecticut corporation. Frank Kulaga is a resident of Connecticut. Plaintiff seeks "more than" $15,000 in damages, and defendants, in their notice of removal, claim that the amount in controversy exceeds $50,000. [2] The federal question is raised as a defense in defendants' notice of removal. Defendants contend that Section 301 of the Labor-Management Relations Act preempts most of the state law claims in the complaint.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510393/	588 S.W.2d 883 (1979) Mary V. NEWSOM and Donald G. Newsom, Sr.; Donald G. Newsom, Jr., and Dawn Newsom, Minors by next friend Donald G. Newsom, Sr., Plaintiffs-Appellants, v. Sidney MARKUS, Defendant-Appellee. Court of Appeals of Tennessee, Western Section. July 26, 1979. Certiorari Denied October 22, 1979. 884 James R. Ralph, Memphis, for plaintiffs-appellants. Neely, Green & Fargarson, Memphis, for defendant-appellee. Certiorari Denied by Supreme Court October 22, 1979. MATHERNE, Judge. The plaintiff, Mary V. Newsom, accompanied by the minor children, Donald G. Newsom, Jr., and Dawn Newsom, was driving her automobile south on White Station Road when the defendant, Sidney Markus, traveling in the same direction pulled partly out of his lane of traffic and the left bumper of his vehicle scraped down the right side of the plaintiff's vehicle. The plaintiff and the two minor children sued for damages due to personal injuries allegedly received in the collision, and the plaintiff Donald Newsom, Sr., the husband of Mary V. Newsom, sued for medical expenses incurred on behalf of his wife and children and for loss of consortium of his wife and loss of services of his children. The lawsuits brought by the two minor children were settled prior to trial, leaving only the lawsuits brought by Mary V. Newsom and her husband, Donald G. Newsom, Sr., to be tried. The trial judge, with the consent of the defendant, directed a verdict in favor of the plaintiff on the issue of liability and charged the jury to return their verdicts in the following form: In the first case you will return your verdict: We the jury find for the plaintiff, Mary V. Newsom, and assess her damages at so much, naming the amount in dollars and cents. In the second case your verdict should read and be endorsed on the jacket: We the jury find for the plaintiff, Donald G. Newsom, Sr., and award his damages at so much, naming the amount in dollars and cents. The jury returned the following verdicts: We, the jury, find for the plaintiff, Donald G. Newsom, Sr., and assess his damages in the amount of $950.00. We, the jury, find for the plaintiff, Mary V. Newsom and assess her damages no dollars. Judgments were entered on the verdicts, and, after their motion for a new trial was overruled, the plaintiffs appealed and properly raise the following issues: (1) the verdicts are inadequate; (2) the verdicts are contradictory; (3) the court improperly admitted evidence that Mary V. Newsom was totally temporarily disabled at the time of the collision; (4) the court erred in giving certain instructions and refusing others on the measure of damages where the issue is the aggravation of a pre-existing injury or physical condition; and (5) the court erred in refusing to furnish the jury with the specific amounts of medical expenses when the jury requested that information during its deliberations. The facts of the collision need not be dwelt upon except as those facts might reflect upon the personal injuries claimed by Mrs. Newsom. In this respect the record 885 reflects that the impact was slight with little damage to the vehicles. Mrs. Newsom has a history of trouble with her back. In 1955, she injured her back while working at Walgreen's and disc surgery was performed by Dr. Robert Raskind. While working at Montesi's in 1971, she slipped and fell on the floor. As result of that fall she had disc surgery by Dr. D.J. Canale. In September 1975, while working at Boise Cascade, her back began bothering her. She was hospitalized and on October 13, 1975, a spinal fusion was performed by Dr. D.J. Canale and Dr. Daniel J. Scott, Jr. Mrs. Newsom testified that she thought she was recovering from the spinal fusion, but the testimony of her doctors refutes that contention. Her testimony is rather conflicting on that point in that she claims that after the automobile accident on April 15, 1976, she could not do her housework as before and that she experienced pain in an area of her back above the spinal fusion which she had not previously felt. She testified on direct examination as follows: Q. Mrs. Newsom, since the automobile accident in April of 1976, have you had any problems with the lower portion of your back where the fusion took place? A. No, Sir, I have not. Q. Since the April, 1976 automobile accident, have you at any time been able to go back to the activities that you enjoyed back before September of '75? (Emphasis added) A. No, sir, I have not. Q. Okay. Can you tell us any things, any particular activities that you have, entertainment or work or any type of activities that you could partake in at that time and cannot partake in at this time? A. I used to enjoy dancing and I can't do that any more. And I used to enjoy just walking and shopping and I can't do that any more. Q. All right. A. I used to could clean the house and I can't do that any more. Q. Who has been cleaning the house? A. My sixteen year old daughter. Q. All right. Are you able to participate in that at all? A. I help, but I can't do it all by myself. She has to do most of it. Q. All right. And what was your situation as far as housework back before September of '75? (Emphasis added) A. Before I had the fusion, I did all my housework, I could do the cleaning and the cooking and the scrubbing or whatever I had to do. I could even run the vacuum cleaner. Now, I can't do any of that at all. (Emphasis added) Mrs. Newsom testified that she returned to her employment eleven months after the automobile accident and that she is now working full time eight hours a day, five days a week. Dr. Daniel Scott, an orthopedic surgeon in Memphis, Tennessee, testified that on October 13, 1975, he did the spinal fusion on Mrs. Newsom. She was sent home on October 24th and told to return in six weeks. She returned on the 12th of December, again on January 26, 1976, and on March 8, 1976. She gave him the history of having pain down the leg and across the back and up the end of the incision and above the right paravertebral muscle. He next saw her on April 26, 1976, for Dr. Canale who had hospitalized her after the automobile collision. He saw her on June 11, 1976, on July 23, 1976, and on September 24, 1976. He stated that the spinal fusion appeared solid and was progressing as expected. He said Mrs. Newsom complained of more pain since the accident. He was not asked and he ventured no opinion on whether Mrs. Newsom's condition was aggravated by the automobile collision. He wrote a letter in February 1976, two months before the collision, that in his opinion Mrs. Newsom would not be able to return to work for 12 months from that date. Mrs. Newsom did return to work about 11 months from that date. Dr. D.J. Canale, a neurosurgeon in Memphis, Tennessee, testified that he first saw Mrs. Newsom in May 1971 at the request of Dr. Scott. At that time he did a myelogram that was normal. In July 1971 he and 886 Dr. Scott performed disc surgery on Mrs. Newsom, and she did well postoperatively. In September 1975, Mrs. Newsom came to him complaining of recurrent pain in the back going into the right extremity. At this time she had evidence of sciatica and she was hospitalized. She was treated conservatively and sent home. In October 1975, she was re-admitted and underwent a disc exploration and fusion. Dr. Canale followed up on her and made the following statement as to her condition as result of his examination of her on April 12, 1976, three days before the automobile collision: She was continuing to have pain even after her surgery. I followed her through April 12th, and at which time she was six months post-op. I stated at that time that as far as her back was concerned, she was a failure as far as her disc surgery and that she was still complaining of a lot of pain in the right lower extremity going into the foot and complained of pain in her incision, and I explained to her at this time that I didn't feel there was anything further from a neurosurgical standpoint to do for her. Then, I saw her back about two days later, she was involved in an automobile accident. Dr. Canale saw Mrs. Newsom repeatedly during 1976. He admitted her to St. Joseph Hospital in September 1976 for traction, physical therapy and muscle relaxants. He saw her in October and November 1976, and in January 1977, her last visit being in April 1977. At the time he examined her after the accident he felt that she "had sustained an acute lumbo-sacral strain on an already irritable back... ." He stated that in his opinion "she probably had sustained an additional disability as a result of the accident in the range of ten per cent to the body as a whole... ." Dr. Canale also testified, as follows: Q. Doctor, how would you describe this lady's back to the jury following that surgery in 1975? A. Well, she was not helped by the surgery. She was still complaining. My notes indicate in April of 1976 she was complaining as much as she was before surgery. She was six months post-op, but she was still complaining. (Emphasis added) Q. Doctor, the performing of the fusion by Dr. Scott was an operation that was designed to give her some relief from this pain that she was experiencing in her low back, was it not? A. Yes, sir, it was. Q. When you say the operation was a failure, you mean that neither the operation that you performed nor the fusion really helped her any? A. Yes. To qualify that a little bit, what I really mean, as far as I was aware, the fusion took well, and there was no problem with the surgery, but our combined efforts had not relieved the patient's symptoms. (T.R. 181-182) * * * * * Q. So I guess what I am really asking you about and what I want you to talk with the jury about here is is there any way that you could say with any degree of medical certainty that this lady would not have continued to have these complaints of pain even if she had not been involved in this accident? A. There is no way I could say that, because she was having the pain when she had her accident. (T.R. 184-185) We conclude that there is material evidence in the record from which the jury could find that Mrs. Newsom did not sustain any personal injury nor aggravation of a pre-existing condition as a result of the automobile collision caused by the defendant. The plaintiffs challenge the verdicts in this case as being both inconsistent and contradictory. If, after an examination of the terms of the verdicts, the court is able to place a construction there on that will uphold the verdict, it is incumbent upon the court to do so. Briscoe v. Allison (1956) 200 Tenn. 15, 290 S.W.2d 864. In challenging the verdict in the case of Mrs. Newsom, the plaintiffs rely upon Clements v. Veterans Cab Co. (1960) 887 48 Tenn. App. 152, 344 S.W.2d 572, wherein this Court held that in a personal injury action a jury verdict for the plaintiff with no damages awarded is internally inconsistent and erroneous on its face. In Clements the entire issue of a cause of action for damages due to personal injuries was submitted to the jury. That cause of action required proof of (1) a duty to the plaintiff, (2) breach of that duty by the defendant, and (3) resulting personal injury to the plaintiff. When the jury found for the plaintiff it resolved each of those issues in favor of the plaintiff including a finding of resulting personal injuries. It would, therefore, be incumbent upon the jury to find damages in some amount. In the present lawsuit the entire cause of action was not submitted to the jury. The trial judge directed a verdict in favor of the plaintiff on the issue of liability, leaving to the jury to determine if the plaintiff suffered any personal injury, and if so to assess damages. This was proper because in order to support the action there must be not only the negligent act, but a consequential injury which is the gravamen of the charge of negligence. Colsher v. Tennessee Electric Power Co. (1935) 19 Tenn. App. 166, 84 S.W.2d 117. The fact that the issue of injury was left to the jury is shown by the following excerpts from the judge's charge: At the end of all the proof in this cause the court has directed a verdict for the plaintiffs. That means to say that you have no issue in this case as to liability. The only issue in this case is the nature and extent of the damage and injury. (Emphasis added) * * * * * Now since I have directed a verdict on the part of liability, your only question is to damages. Under our law a party who has been injured as a direct and proximate result of the negligent act of another is entitled to recover an amount of money that you say would fairly and adequately compensate him or her for the injuries that you find were negligently inflicted upon him or her, taking into consideration the nature and extent of the injuries, their kind, character, and duration, the amount of mental and physical pain the plaintiff has suffered due to his or her injuries. (Emphasis added) We, therefore, conclude that in the case of Mrs. Newsom the jury by its award of no damages found that Mrs. Newsom was not injured in the collision and that she did not suffer an aggravation of pre-existing injuries or disability. As heretofore noted there was material evidence before the jury upon which that finding could rest. It must be noted that the jury was directed to "find for the plaintiff" in each case. We, therefore conclude that the verdict in the case of Mrs. Newsom is not erroneous on its face. The plaintiff argues that the verdicts are contradictory and inconsistent for the further reason that the award of damages to Mr. Newsom demands an award of damages to Mrs. Newsom. Under the facts, we disagree. We fail to find a reported Tennessee decision on the issue, but it has been held that a party is entitled to recover reasonable medical expenses for examinations, etc., in an effort to determine if personal injuries were sustained as result of defendants negligence, even though it develops that the party suffered no personal injury. See Comstock v. Ramirez (Tex.Civ. App. 1975) 520 S.W.2d 475; Wise v. Towse (Mo. App. 1963) 366 S.W.2d 506; Loret v. Armour & Co. (La. App. 1947) 32 So. 2d 55; Whitney v. Akers, 247 F. Supp. 763 (1965). Considering the fact that Mrs. Newsom was then recovering from a spinal fusion, temporarily totally disabled from her employment and complaining about pain in her back, it was reasonable for Mr. Newsom to take her to a hospital and have necessary examinations, X-rays and other diagnostic procedures to determine if she suffered injury in the collision. This expense flowed naturally from the tortious act of the defendant and is recoverable even though it be found by the jury that Mrs. Newsom in fact suffered no injury. The record reveals that Mrs. Newsom was hospitalized from April 21, 1976 to April 28, 1976, and was seen by Dr. Scott *888 and Dr. Canale. The hospital bill was $807.45, Dr. Scott's bill was $30.00 and Dr. Canale's bill was $60.00 during this time. This results in a total amount of $897.75 incurred by Mr. Newsom to have Mrs. Newsom examined and evaluated as to injury caused by the collision. There are additional medical bills incurred after April 28, 1976, but those bills are not material to the issue at hand. We note that the jury during its deliberation asked the trial judge for the exhibits reflecting medical expenses. The trial judge refused the request and told the jurors that they must do the best they could from what they remembered of that evidence. In civil cases the trial judge may, in his discretion, allow the jury to take the exhibits into the jury room for their consideration during deliberation. T.C.A. § 20-1332. We can not say that the trial judge abused his discretion in this respect. The jury awarded Mr. Newsom $950 damages. We hold that this award is justified by the proof of medical expenses incurred for the initial examination and evaluation of Mrs. Newsom after the accident. We do not know that the jury made this award for that purpose. However, when we consider the jury's request for the medical expenses and the amount of the award, we can reasonably conclude that the jury meant to compensate Mr. Newsom for those expenses. The award exceeds the proven medical bills by only $52.25, which amount could be reasonably allowable as expenses of Mr. Newsom going back and forth from the hospital during those seven days that Mrs. Newsom was hospitalized. We, therefore, approve the verdict rendered in favor of Mr. Newsom. The plaintiffs claim error wherein the trial judge permitted the cross-examination of Mrs. Newsom as to her pre-existing disability. The plaintiffs on direct examination brought those issues up and it was proper to allow the defendant to pursue this matter on cross-examination. The complaints levied against the jury charge of the trial judge on the issue of the measure of damages applicable to Mrs. Newsom's injuries due to her pre-existing injury or disability are not here material. The jury found that Mrs. Newsom was not injured nor was her pre-existing injury or disability aggravated. The jury did not reach the issue of the amount of damages in her lawsuit and the charges given and refused, if erroneous, would have no bearing on the outcome. It results that the judgment based upon each verdict is affirmed and this lawsuit is remanded to the trial court for the enforcement thereof. The cost in this Court is adjudged against the appellants. SUMMERS and EWELL, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510405/	117 N.H. 189 (1977) SCOTT & WILLIAMS, INC. v. BOARD OF TAXATION No. 7323. Supreme Court of New Hampshire. March 31, 1977. 191 Sheehan, Phinney, Bass & Green, of Manchester, G. Mitchell Eckel III and Richard A. Morse (Mr. Morse orally) for the plaintiff. 192 David H. Souter, attorney general, and Charles G. Cleaveland, assistant attorney general (Mr. Cleaveland orally), for the defendant. LAMPRON, J. Pursuant to RSA 77-A:14 (Supp. 1975) plaintiff appealed to the superior court for de novo review of a decision by defendant concerning plaintiff's business profits tax liability for 1970 and 1971. There being no dispute as to the underlying facts, and the parties having filed an agreed statement of facts, the Superior Court (Batchelder, J.) reserved and transferred without ruling the questions of law presented. The primary issue raised in this case is the constitutionality of the sales "throwback rule" contained in RSA 77-A:3 III (Supp. 1975) which sets forth the income apportionment formula for business organizations doing business in this state and in one or more other states. These apportionment provisions are applied only when (1) a business "derives gross business profits from business activity both within and without" New Hampshire, and (2) is "subject to a net income tax, a franchise tax measured by net income or a capital stock tax in another state or is subject to the jurisdiction of another state to impose a net income tax or capital stock tax upon it whether or not such tax is or is not actually imposed." Under the apportionment formula three factors are used to measure the proportion of business activity within New Hampshire. The first two factors, the New Hampshire percentage of the total payroll and property of the business, are not disputed. Under the third factor, sales, those sales which are delivered outside of New Hampshire, but which are not "taxable" in the state of the purchaser, are allocated to New Hampshire. It is this "throwback rule" which plaintiff attacks as unconstitutional. We hold that it is not. A subsidiary question raised is whether the "throwback" provision applies to sales delivered to foreign countries. Plaintiff manufactures and sells knitting machines. It is a Delaware corporation qualified to do business in New Hampshire. Its principal business office and sole manufacturing plant are located in Laconia, New Hampshire. Plaintiff also has a sales office in New York City and a sales office and warehouse in High Point, North Carolina. Plaintiff is also qualified to do business in, and makes regular sales of its machinery and parts in Georgia, Massachusetts, 193 New York, and North Carolina. During the tax years in question plaintiff also made sales to other states. During this period plaintiff also made sales to foreign countries, either directly or through a wholly owned subsidiary corporation located in Belgium. The apportionment provisions of RSA 77-A:3 (Supp. 1975) are designed to measure the proportion of business activity conducted by a taxpayer within New Hampshire. Only a corresponding proportion of the taxpayer's business income is then taxed in this state. We upheld this apportionment formula in Johns-Manville Products Corporation v. Commissioner of Revenue Administration, 115 N.H. 428, 343 A.2d 221 (1975), dismissed for want of a substantial federal question, 423 U.S. 1069 (1976). Similar apportionment formulas elsewhere have also been upheld against constitutional attacks. General Motors v. District of Columbia, 380 U.S. 553 (1965); Butler Brothers Corp. v. McColgan, 315 U.S. 501 (1942); Hans Rees' Sons, Inc. v. North Carolina, 283 U.S. 123 (1931); Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 (1920). Although New Hampshire has adopted neither the Uniform Division of Income for Tax Purposes Act (U.D.I.T.P.A.) nor the Multistate Tax Compact, the apportionment provisions of RSA 77-A:3 (Supp. 1975), including the sales "throwback rule," are virtually identical to the apportionment provisions contained in those acts. See U.D.I.T.P.A., 7 Uniform Laws Annotated 365 (1970); Multistate Tax Compact, CCH State Tax Guide ¶ 35. The apportionment formula of the U.D.I.T.P.A., adopted by South Carolina, was held to be constitutional in Covington Fabrics Corp. v. South Carolina Tax Comm'n, 264 S.C. 59, 212 S.E.2d 574 (1975), dismissed for want of a substantial federal question, 423 U.S. 805 (1975). Plaintiff contends, however, that because the allocation of sales to New Hampshire depends in part on whether or not sales are "taxable" in the state of the purchaser, the "throwback rule" results in taxation of extraterritorial values. Plaintiff also argues that because the tax laws vary from state to state the term "taxable" in this section renders it unconstitutionally vague. [1] In any business, profits are determined by the entire series of transactions constituting that business. In the case of a manufacturer this would include the purchase of raw materials, the manufacture of the goods, and finally their sale. Hans Rees' Sons, Inc. v. North Carolina, 283 U.S. 123 (1931); Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 (1920). The payroll and 194 property factors are important in allocating business income to a state where the manufacturing process takes place. The sales factor is used in recognition of the fact that a state which provides a market for a product is entitled to some tax returns on the income which it has helped to produce. Hartman, "Solicitation" and "Delivery" Under Public Law 86-272: An Uncharted Course, 29 Vand. L. Rev. 353, 356 (1976); Lynn, The Uniform Division of Income for Tax Purposes Act, 19 Ohio St. L.J. 41, 51 (1958). [2, 3] However, if a state where products are delivered has not provided benefits sufficient to entitle it to tax any portion of the business' income, then it is proper to attribute the production of income from those sales entirely to the state or states which have provided "protection opportunities and benefits" to the business throughout the manufacturing process up to the point of shipment to the purchaser. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940). Allocation of such sales to New Hampshire, the state of shipment, under the "throwback rule" therefore does not constitute taxation of extraterritorial values. Rather, it is an allocation of those sales to the state most entitled to levy a tax in return for the opportunities, protections and benefits which it has afforded the taxpayer. The operation of the "throwback rule" may not result in a mathematically precise measure of the proportion of plaintiff's business activities conducted in New Hampshire. However, if the apportionment formula provides for reasonable apportionment of plaintiff's income according to its sources or to the "social costs" generated by plaintiff's business activities, this lack of precision will not render it invalid. General Motors Corp. v. District of Columbia, 380 U.S. 553, 561 (1965); Complete Auto Transit, Inc. v. Brady, 45 U.S.L.W. 4259 (March 7, 1977). Furthermore RSA 77-A:3 III (Supp. 1975) also provides for modification of the apportionment formula used if it "does not fairly reflect the extent of the business activities of a business organization within this state." Plaintiff has not petitioned for such a modification; nor does plaintiff claim that application of the statutory formula unfairly reflects the proportion of its business activities in New Hampshire. [4] Paragraph III of RSA 77-A:3 (Supp. 1975) does not define the term "taxable" contained in its "throwback rule" provision. However, apportionment of income for tax purposes is not necessary unless a business conducts sufficient business activity in 195 another state to entitle that state to tax a portion of its income. The purpose of apportionment is both to protect a taxpayer from double taxation on the same income and to provide every state concerned with tax revenues in return for the benefits each has provided. It is therefore proper to define the term "taxable" contained in paragraph III to mean subject to taxation as set forth initially in section 3 defining which businesses come within the apportionment provisions. Thus, if the business is "subject to a net income tax, a franchise tax measured by net income or a capital stock tax" in the state of a purchaser, or if it is "subject to the jurisdiction of [that] state to impose a net income tax or capital stock tax," then the business is taxable in that state for the purposes of the "throwback" provision. See Lynn, The Uniform Division of Income for Tax Purposes Act, 19 Ohio St. L.J. 41, 50 (1958). [5-7] The operation of the sales "throwback" provision therefore does not depend on the various tax laws of the other states. Rather, operation of the provision depends on whether or not a business has sufficient contact with the state of a purchaser to bring it within the taxing jurisdiction of that state. No precise standards for determining when a state may impose an income or capital stock tax have been articulated. However, the minimum requirement for constitutional taxation by a state is determined by the question of "whether a state has given anything for which it can ask return." Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940); Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 464 (1959); see Complete Auto Transit v. Brady, 45 U.S.L.W. 4259 (March 7, 1977). This standard has been made more stringent by a federal statute which prohibits a state from imposing a tax when business activity within a state is limited to solicitation of orders which are both approved and filled outside the state. P.L. 86-272; 15 U.S.C. § 381. Therefore, if a business takes advantage of the opportunities provided by a state to conduct activities which either are beyond mere solicitation of orders, or are otherwise sufficient to provide a taxing nexus according to the standard set forth in Wisconsin v. J. C. Penney Co. supra, it comes within the jurisdiction of that state to impose a tax. The income from those sales would not be attributed to the activities of the business in this state when determining the percentage of sales factor of the three part apportionment formula. We hold that the 196 "throwback" provision does not render the apportionment portion of the business profits tax act unconstitutionally vague as plaintiff argues. [8, 9] Plaintiff also argues that the use of a federal definition of taxability violates the New Hampshire Constitution. However, in Shangri-La, Inc. v. State, 113 N.H. 440, 309 A.2d 285 (1973), we held otherwise. Such a definition is appropriate in view of the objectives of income apportionment among states. Estate of Kennett v. State, 115 N.H. 50, 54 333 A.2d 452, 455 (1975). Because there are statutory standards for determining taxability, we disagree with plaintiff's contention that the "throwback rule" constitutes an excessive delegation of authority to the commissioner of revenue administration. Union School District v. Comm'r of Labor, 103 N.H. 512, 516, 176 A.2d 332, 335 (1961). [10] Despite criticisms of the record-keeping burden required of multi-state business organizations for purposes of apportionment formulas, see Justice Frankfurter's dissent in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 474 (1959), we do not agree with plaintiff that this burden, if it exists, renders unconstitutional the apportionment formula contained in RSA 77-A:3 (Supp. 1975). In addition, because plaintiff, not defendant, is in the best position to determine the extent and nature of its business activity in other states, the burden is properly placed on plaintiff to produce evidence that it is taxed or taxable in the states where its sales are delivered. Johns-Manville Prods. Corp. v. Commissioner of Revenue Adm'n, 115 N.H. 428, 430, 343 A.2d 221, 222 (1975), dismissed for want of a substantial federal question, 423 U.S. 1069 (1976). Plaintiff also argues that the sales "throwback rule" is a denial of equal protection because it results in the tax burden falling unequally upon "foreign corporations having identical sales and identical contacts with the State." This argument is based on a false premise. If two corporations with identical total business activity are taxed differently by virtue of the "throwback rule", this is because they do not have identical business contacts with New Hampshire. The amount of a corporation's business activity within New Hampshire will be determined in inverse proportion to the amount of that corporation's business activity in other states. If a corporation conducts sufficient business activity in other 197 states to render it taxable in those states, the amount of its business activity in New Hampshire will necessarily be less in comparison to a corporation whose business activity in other states is not of a sufficient amount to render it taxable in some or all of those states. As we apply a uniform standard to determine taxability in other states, all corporations having identical out-of-state contacts will be treated in the same manner in New Hampshire under the "throwback rule." Plaintiff's equal protection argument must therefore fail. [11] Contrary to plaintiff's contentions, we hold that RSA 77-A:3 III (Supp. 1975) does not deprive plaintiff of its property without due process, is not an undue burden on interstate commerce, does not violate the equal protection clause, and its "throwback rule" is not unconstitutionally vague. We hold RSA 77-A:3 III (Supp. 1975) constitutional. The agreed statement of facts, prepared by the parties in the superior court, contains a statement that "[i]n all sales areas ... [plaintiff] rendered on occasion services which are accepted as beyond the mere solicitation of sales, such as sending personnel to aid in installing machines, to aid in difficult on-the-scene repairs, to conduct training of operating personnel in the use of machinery sold, etc." Plaintiff had not, however, introduced any evidence regarding this activity, either at the audit or before the commissioner of taxation. It is defendant's position that even if there are such contacts in other states as are alleged by plaintiff, these contacts are not sufficient to render plaintiff taxable in those states. [12] It has been held in other jurisdictions that when the business activity of a taxpayer in another state exceeds the threshhold level of mere solicitation set by P.L. 86-272, the taxpayer is entitled to apportion its income for tax purposes. Coors Porcelain Co. v. State, 183 Colo. 325, 517 P.2d 838 (1973); Iron Fireman Mfg. Co. v. State Tax Comm'n, 251 Ore. 227, 445 P.2d 126 (1968); Cal-Roof Wholesale, Inc. v. State Tax Comm'n, 242 Ore. 435, 410 P.2d 233 (1966). We have construed "taxable" in the "throwback" provision of RSA 77-A:3 III (Supp. 1975) as meaning the same as "subject to the jurisdiction" of a state to tax for purposes of entitling a business to apportion its income. If a taxpayer has exceeded the threshhold requirement of P.L. 86-272 in a state where it makes sales, then it is taxable in that state for purposes of the 198 "throwback" provision. See Hartman, "Solicitation" and "Delivery" Under Public Law 86-272: An Uncharted Course, 29 Vand. L. Rev. 353, 392 (1976). We hold, therefore, that if plaintiff is able to prove its allegations as to services which are "beyond the mere solicitation of sales" in other states, then it is taxable in those states. None of those sales therefore can be allocated to New Hampshire as part of the sales factor under RSA 77-A:3 III (Supp. 1975). Plaintiff and defendant agree that the term "state" contained in RSA 77-A:3 (Supp. 1975) includes foreign countries, and that the sales "throwback" provision applies to sales delivered in foreign countries. See U.D.I.T.P.A. § 1(h), 7 Uniform Laws Annotated 368 (1970). Whether or not the foreign countries where plaintiff delivers sales have jurisdiction to impose on plaintiff a net income tax or capital stock tax will depend on the taxing powers of each country. We note that the provisions of P.L. 86-272 have no bearing on the power of foreign countries to tax. As we have nothing in the record before us regarding the taxing powers of Belgium and other foreign countries where plaintiff delivers its products, we are unable to determine whether or not such sales were properly allocated to New Hampshire under the "throwback rule." We remand the case for determination of whether plaintiff is taxable in any of the states or foreign countries where it makes sales. Remanded. BOIS and DOUGLAS, JJ., did not sit; the others concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510401/	73 N.J. 24 (1977) STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. TED LAND AND JOAN LAND, DEFENDANTS-APPELLANTS. The Supreme Court of New Jersey. Argued November 22, 1976. Decided March 25, 1977. 27 Mr. Michael A. Querques argued the cause for appellant Ted Land. Mr. Donald S. Goldman argued the cause for appellant Joan Land (Messrs. Goldman, Goldman and Caprio, attorneys). Mr. Michael A. Graham, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney). 28 The opinion of the court was delivered by SCHREIBER, J. The central issue is the propriety of one attorney representing two defendants charged with the same crimes. Ted and Joan Land, husband and wife, were each indicted for possession of more than 25 grams of marihuana, possession of cocaine, and possession with intent to distribute those substances. Mr. Land was found guilty of all counts. Mrs. Land was found guilty of the possession charges, but not of the possession with intent to distribute. The Appellate Division affirmed. 136 N.J. Super. 354 (1975). We granted certification, 69 N.J. 390 (1976). About 6:00 A.M. on July 26, 1972, five detectives, armed with a search warrant, went to the defendants' one family house at 832 E. Blancke Street, Linden, New Jersey. Mr. Land had already left for work, but Mrs. Land was home and permitted the detectives to enter and search the house. In the master bedroom, the detectives discovered a metal box and a gram scale in a closet, and some tinfoil packets of cocaine and a bag of marihuana in a dresser. They also found a pipe useable for marihuana, a strainer and two measuring spoons. When Mrs. Land said she had no key to the box, the officers broke it open and found over 500 grams of cocaine and 175 grams of dextrose. One attorney represented both defendants throughout the trial. Aside from disputing the identity and definitional quality of the controlled dangerous substances, the defense attempted to establish Joan Land's innocence and inferentially her husband's guilt. She was the only defense witness and she sought to exculpate herself by claiming that she was unaware of the metal box in the closet. She maintained that the closet was exclusively used by her husband. A detective testified that Joan Land had stated that she did not possess the key to the metal box before it was broken open. She said that she knew nothing of the existence of the marihuana and tinfoil cocaine packets found in the dresser drawers which she asserted were used by her husband alone. She denied knowledge of any of the other 29 narcotic related items and claimed the spoons and strainer were a part of her kitchen utensils. Since she stated that only her four infant children and husband resided in their house, her testimony obviously inculpated her husband. Nothing in the record indicates that the defendants were advised by their attorney or the trial court of the potential conflict in engaging one attorney to defend them. It was not until the appeal had been filed that separate attorneys were retained. The Appellate Division did not reject the claim that the parties were entitled to and should have been represented by separate counsel, but held that no harm resulted because "[t]here is nothing in the record which would suggest that separate counsel would have achieved another result." 136 N.J. Super. at 358. The Sixth Amendment to the Federal Constitution, which is applicable to the States by virtue of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963), requires that in a criminal prosecution the "accused shall enjoy the right ... to have the Assistance of Counsel for his defense." The New Jersey Constitution contains almost identical language. Art. I, par. 10.[1] Mere literal compliance, that is representation by an attorney, may not be enough to satisfy these constitutional mandates. The constitutional right to the "assistance of counsel" contemplates that the attorney's position as an advocate for his client should not be compromised before, during or after trial. In representing more than one defendant, where divergent or conflicting positions may exist, an attorney's representation will probably not be as effective 30 as it might have been if he had one client.[2] The inherent difficulty in representing more than one defendant in a criminal proceeding and in steering a course which will promote the interests of each, but which will not be to the detriment of any one, exposes the infirmity of dual representation. Furthermore, the principle of attorney-client confidentiality imposes the inviolability of a sacred trust upon the attorney. It has been said that the right to counsel "would be meaningless if the defendant were not able to communicate freely and fully with the attorney." M. Freedman, Lawyers' Ethics In An Adversary System 8 (1975). Representing two defendants involved in the same or related transactions could place the attorney in the impossible position of receiving and respecting confidential communications which may assist one defendant and harm another. Not only does this possibly inhibit the freedom of the client to cooperate completely, it also may curtail the ability of the attorney to be a vigorous partisan for each defendant. Where the attorney cannot or may not be able to pursue an unrestrained course of action in favor of a defendant because he represents a codefendant, his effectiveness 31 as counsel has been hampered. Under those circumstances, it cannot be said that the defendant's interests are being "protected to the fullest extent consistent with ... the standards of professional conduct." ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function 145-146 (Approved Draft 1971). As one commentator has written: A conflict of interests, then, need not necessarily consist of an obvious inconsistency of defenses among multiple defendants. It is quite sufficient to constitute a fatal conflict if counsel is precluded, because of diverging interests of co-defendants, from representing either defendant with that degree of proficiency and forcefulness of defense which he would exhibit if either were his sole client. Where an attorney is impeded from doing his best, he is not only inadequate, but constitutionally `ineffective.' [Note, Conflict of Interests in Criminal Proceedings, 23 Ark. L. Rev. 250, 255 (1969) (footnotes omitted)] The spirit and intent of the federal and state constitutional requirement, effective assistance of counsel, would in that manner be compromised and violated. Ample precedents support this proposition. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941), the Supreme Court reversed a conviction where an attorney, who was already representing one defendant charged with conspiracy to defraud, was designated by the court at the commencement of the trial to represent a codefendant. The Court wrote that it was: clear that the "assistance of counsel" guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. [315 U.S. at 70, 62 S.Ct. at 465, 86 L.Ed. at 699] In Government of Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir.1973), in a factual pattern strikingly similar to the instant case, a husband and wife who had one attorney were convicted of possession with intent to distribute heroin. After reversing the convictions because of 32 an improper charge, the court questioned the appropriateness of having one attorney because "counsel may understandably be inhibited in his efforts to demonstrate that one or the other defendant was the guilty party." Id. at 794. It was suggested that on retrial the trial judge warn each defendant of the possible dangers of joint representation and afford each the opportunity of selecting separate counsel. In State v. Green, 129 N.J. Super. 157 (App. Div. 1974), two defendants charged with unlawful possession of the same controlled dangerous substance were represented by one attorney. The Appellate Division reversed the convictions and commented that "a defendant should have nothing less than the undivided loyalty of his counsel." Id. at 161. Underlying the principle that an attorney should represent only one client is the assumption that a conflict exists or may exist between codefendants. Although not apparent, the conflict may surface during the course of the trial. However, there may be circumstances where no conflict exists. Or, even if the possibility of divergence is present, the defendants tactically may desire one counsel. Since a single attorney eliminates reciprocal attacks and a joint defense may have a certain jury appeal, defendants may desire joint representation irrespective of the possible conflict. It is their right to have such representation, for parties may surrender their constitutional right to independent counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937). Initially, it is the attorney's obligation when he first meets with his prospective clients to advise them of possible conflicts and of their constitutional rights. Some guidelines are prescribed in the Disciplinary Rules. DR 5-105 reads that: (A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the 33 proffered employment, except to the extent permitted under DR 5-105(C). (B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C). (C) In situations covered by DR 5-105(A) and (B) except as prohibited by rule, opinion, directive or statute, a lawyer may represent multiple clients if he believes that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the facts and of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. In a criminal setting, in particular, the attorney should carefully explore the situation and we suggest that, if the circumstances are doubtful, we recommend individual counsel. In all cases where an attorney represents more than one defendant, the trial court ought to advise the parties of their constitutional rights.[3] This should be accomplished as soon as the trial court is alerted to the existence of multiple representation and feasibly may bring the matter to the attention of the defendants and counsel. The defendants may waive those rights, but the trial judge must make certain on the record that the defendants understandingly and knowingly have decided to forego separate counsel. In this case the potential conflict between the defendants Ted and Joan Land is self-evident. Were they both in the business of distributing cocaine? If not, which one was? Who possessed the marihuana? Or did they both? Should the husband have prevented his wife from testifying? Evid. R. 23(2). Should objections have been made at the trial to questions posed to the detectives to elicit statements Joan Land had made to them such as whether she had the key to the metal box which contained the cocaine the 34 negative answer to which inculpated her husband? Furthermore, there is nothing in the record which discloses whether the defendants were at any time advised of their conflicting positions and their respective constitutional rights to independent counsel. An intelligent and competent expression that they did not intend to exercise that right is missing. Next, it is necessary to determine whether, in the absence of a waiver, the existence of the constitutional infraction necessitates reversal. May the error be harmless? Must there be a showing of specific prejudice or will its possibility suffice? Courts are not in accord on the appropriate test. See Annotation, "Circumstances Giving Rise to Conflict of Interest Between or Among Criminal Codefendants Precluding Representation by Same Counsel," 34 A.L.R.3d 470 (1970). In Glasser v. United States, supra, the Supreme Court found that any prejudice would justify reversal: The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. [315 U.S. at 76, 62 S.Ct. at 467, 86 L.Ed. at 702] In State v. Ebinger, 97 N.J. Super. 23 (App. Div. 1967), where an attorney represented a defendant who pleaded guilty and testified against a codefendant who had been represented by the same lawyer, Justice Sullivan, then writing for the Appellate Division, held: The right to adequate and effective representation by counsel is so fundamental that invocation of it cannot be made to depend on a showing of prejudice. Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Porter v. United States [5 Cir., 298 F.2d 461] supra. Moreover, where, as here, a substantial conflict of interest is present, the matter of adequate and effective representation falls into a shadowy area which is almost impossible to probe. We hold that in the circumstances here presented defendant did not have adequate and effective representation at trial in the constitutional sense and that, irrespective of the question of actual prejudice, his conviction cannot stand. [Id. at 27] 35 To like effect see United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir.1973) (a showing of a possible conflict of interest or prejudice, however remote, is sufficient); Kruchten v. Eyman, 406 F.2d 304, 311 (9th Cir.1969), judgment partially vacated and remanded on other grounds, 408 U.S. 934, 92 S.Ct. 2853, 33 L.Ed.2d 748, reh. denied, 409 U.S. 897, 93 S.Ct. 86, 34 L.Ed.2d 155 (1972) (once a conflict of interest is shown, court will not weigh or determine the degree of prejudice which may result); Fryar v. United States, 404 F.2d 1071, 1073 (10th Cir.1968), cert. denied, 395 U.S. 964, 89 S.Ct. 2109, 23 L.Ed.2d 751 (1969) (court will not attempt to calculate the amount of prejudice); Sawyer v. Brough, 358 F.2d 70, 73 (4th Cir.1966) (possibility of harm is enough). Other courts will not reverse a conviction in the absence of a specific instance of prejudice due to the joint representation. United States ex rel. Robinson v. Housewright, 525 F.2d 988, 994 (7th Cir.1975); United States v. Alberti, 470 F.2d 878, 882 (2d Cir.1972), cert. denied, 411 U.S. 919, 965, 93 S.Ct. 1557, 2144, 36 L.Ed.2d 311, 685 (1973); United States v. Lovano, 420 F.2d 769 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970). In our opinion the preferable rule is that, in the absence of waiver, if a potential conflict of interest exists, prejudice will be presumed resulting in a violation of the New Jersey constitutional provision guaranteeing the assistance of counsel. Art. I, par. 10. We believe that this principle accords with the Supreme Court's exegesis of the Sixth Amendment. Glasser v. United States, supra. In this manner the fundamental rights of the defendants to counsel will remain inviolable. As noted above, the attorney, at the outset, must discuss dual representation with the prospective clients. Further, the trial court must, whenever more than one defendant is represented by the same counsel, explore the situation on the record and, mindful of the criteria which we have adopted, advise the defendants of their rights. 36 As we have previously stated, the conflict of interest in one attorney representing Mr. and Mrs. Land is apparent. Actual prejudice to the husband is obvious. Although it is not abundantly clear that Mrs. Land's defense was harmed, we cannot say the possibility did not exist. We do not know whether counsel advised Mr. Land to testify, but under the circumstances it is possible that he should have been called as a witness. If he had corroborated her factual version, perhaps a reasonable doubt of her guilt may have existed in the jurors' minds. Her attorney now contends that there was failure to present evidence to support her defense because it would have inculpated the codefendant and that a motion for a severance should have been made. These claims highlight again the difficulty with which an attorney is faced in representing codefendants. Whenever the attorney has a divided loyalty, the possibility of prejudice to both clients exists. Since a remand for a new trial is in order, it is appropriate to consider some issues which the parties have raised and which may arise in a new trial. The defendant Ted Land claims that his convictions of the charges of possession and possession with intent to distribute cocaine merged. The Appellate Division pointed out that in addition to the cocaine found in the metal box, foil packets of small quantities were also located in the dresser drawer so that an inference could be drawn that these were possessed for personal use as distinguished from the bulk cocaine which the jury apparently concluded was to be distributed. We agree with the Appellate Division that merger may not have been warranted, but this is not clear from the jury's verdicts of guilt. Did it predicate its finding of possession on the bulk cocaine alone or on the packets? At some point during the trial, the State should specify, with particularity, the substances upon which it seeks a conviction for possession and for possession with intent to distribute. State v. Davis, 68 N.J. 69, 84 n. 8 (1975). The trial judge should charge the jury on what specific substances their findings of possession *37 and possession with intent to distribute may be predicated. The defendant Joan Land asserts that there was no proof that the amount of marihuana exceeded 25 grams because it contained some stems and sterilized seeds, although the total weight was 27.10 grams. We agree with the Appellate Division that there is no merit in this contention. N.J.S.A. 24:21-2 and 24:21-20. Counsel for the defendant Joan Land has stated that he will move for a severance. If such a motion is made, that will be an issue to be resolved by the trial judge. Upon Ted Land's retrial, whether separately or jointly, fundamental fairness dictates that Joan Land's testimony adduced at the first trial should not be utilized substantively against him. Reversed and remanded. For reversal and remandment Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and SCHREIBER and Judge CONFORD 7. For affirmance None. NOTES [1] Art. I, par. 10 provides: "In all criminal prosecutions the accused shall have ... the assistance of counsel in his defense." The same language appears in Art. I, par. 8 of the 1844 Constitution. The related provision in the 1776 Constitution, Art. XVI, declared "[t]hat all criminals shall be admitted to the same privileges of ... counsel, as their prosecutors are or shall be entitled to." [2] Sec. 3.5 of the ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function (Approved Draft, 1971) states inter alia: The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation. In the commentary to this section the Standards warn that: Beyond the obligation of disclosure, there are situations in which the lawyer's independent representation of his client is so inhibited by conflicting interests that even full disclosure and consent of the client may not be an adequate protection. ABA Code DR 6-106. In criminal cases this most frequently occurs where the lawyer undertakes the defense of more than one co-defendant. In many instances a given course of action may be advantageous to one of the defendants but not necessarily to the other. [3] A comparable suggestion was made in State v. Green, 129 N.J. Super. at 164.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510422/	821 F. Supp. 1438 (1993) UNITED STATES of America, Plaintiff, v. James Michael MOREY, Defendant. No. CIV-91-1949-T. United States District Court, W.D. Oklahoma. March 10, 1993. Charles P. Hurley, U.S. Dept. of Justice, Tax Div., Washington, DC, for plaintiff. Michael Lee Bardrick, Underwood Bardrick & Kirk, Mark Fitch, Myatt Nash & Fitch, Oklahoma City, OK, for defendant. 1439 ORDER RALPH G. THOMPSON, Chief Judge. Before the court are cross-motions for summary judgment in the captioned cause. By this motion, the United States ("IRS") seeks judgment against the defendant, James Michael Morey, pursuant to 26 U.S.C. § 6332,[1] based upon his failure to honor a levy in the original amount of $55,502.61 served upon him by the Internal Revenue Service. Section 6332(d)(1) imposes personal liability for failure to honor a levy with damages to be measured by the value of the taxpayer's property or property rights, not surrendered, but not exceeding the amount of the levy. The defendant, James Michael Morey, denies any liability pursuant to the levy arguing that he did not possess property of the taxpayer at the time the levy was served; and on this basis, defendant seeks judgment in his favor. The facts giving rise to this suit are as follows: The defendant, James Michael Morey ("Morey"), and the now-deceased taxpayer, Raymond Burger, entered an Agreement for Establishment of Attorney's Fees dated July 11, 1986. The contract recites that Raymond Burger, an attorney, had represented Morey, "in various and sundry matters dealing with among other things his anticipatory inheritance under a Will allegedly drawn by his aunt, Onez Norman Rooney, wherein Morey expects and has expected to inherit a substantial amount of money." Plaintiff's Motion for Summary Judgment, Exhibit "B." The substantive provisions of the contract provided: IT IS THEREFORE MUTUALLY AGREED, STIPULATED AND UNDERSTOOD between Morey and Burger that in forgiveness of all of the prior debts owed by Morey to Burger for whatever cause and under whatever conditions to be forgiven by Burger that Morey stipulates with Burger that there is due at the time of settlement of the estate of Morey's aunt, Onez Norman Rooney, the sum of Two Hundred Thousand Dollars ($200,000.00) which takes into consideration all of the interest, charges, principal, judgments of any kind, character or nature, owed by Morey to Burger for whatever purposes owed, and does hereby liquidate the debt owing to a fixed amount of Two Hundred Thousand Dollars ($200,000.00). In consideration of Morey executing this agreement setting out the amount owed to Burger, Burger hereby gives up all rights that he may have to sue Morey for any individual debt created for any purpose until the ripening of Morey's rights under any Will whereby Morey is in a position to inherit from Onez Norman Rooney, his aunt. The further consideration of Morey's executing this instrument is that Burger has 1440 agreed to continue to represent Morey on credit in the establishment of whatever rights Morey has in the estate of Onez Norman Rooney during her lifetime or at her death or thereafter without charge to Morey as the work is done but with the understanding that any additional work done will be added to the liquidated amount of Two Hundred Thousand Dollars ($200,000.00) now due and owing. Plaintiff's Motion for Summary Judgment, Exhibit "B." Shortly after the agreement was executed, Morey's aunt died. A dispute arose between Burger and defendant concerning the handling of the Rooney estate, and on May 29, 1987, defendant Morey fired Burger as his counsel. On June 5, 1987, Burger filed suit against defendant Morey seeking to collect the attorney fees provided for in the agreement. Raymond Burger had previously, on April 1, 1985, been issued an assessment by the IRS for unpaid taxes, penalties and interest, relating to his 1983 federal income taxes. When the IRS learned of the suit between Burger and defendant Morey, it served on June 24, 1987, a levy upon defendant Morey seeking to obtain all money or other obligations owed by defendant Morey to Burger. The levy reflected the unpaid balance owing by Burger for his 1983 federal income taxes, as of March 30, 1987, in the amount of $55,502.61. The underlying action between Burger and Morey was zealously contested by defendant Morey, who asserted various affirmative defenses to the contract, including lack of consideration, failure of performance, mutual mistake of fact, and unconscionability. Additionally, Morey filed a counterclaim against Burger by which he sought to rescind the agreement. In his counterclaim, Morey alleged that he had, in fact, entered into an attorney/client relationship with Burger and had sought legal advice and services from Burger. In the action upon the agreement, defendant Morey survived two motions for summary judgment filed by Burger such that liability was never established in the action by virtue of a judgment against defendant Morey. On March 26, 1989, Burger died. On August 7, 1989, Morey entered into a Release and Indemnity Agreement with Burger's estate in settlement of the litigation. The settlement agreement called for Morey to pay to the estate the sum of $100,000 in exchange for a complete release and a dismissal of the litigation with prejudice. The settlement agreement also provided that the estate would indemnify Morey for any money or damages sought against Morey from a taxing authority. The estate was paid the sum of $100,000 on or about July 31, 1989. Despite the IRS's continuing assertion of the validity of the levy, the payment was made by defendant Morey to the estate; that is, the levy was not honored. On or about October 16, 1989, the IRS, aware of the settlement, made demand upon Morey's lawyer for the amount of $55,502.61, giving Morey five (5) days to respond or face proceedings under 26 U.S.C. § 6332. The IRS was informed on October 23, 1989, of Morey's positionthat the levy did not reach monies paid to the estate. This litigation ensued. The dispositive issue with respect to both motions is whether, at the time the levy was served upon Morey, Morey was obligated with respect to property or rights to property subject to the levy. Under Section 6331(a) of the Internal Revenue Code, the IRS is authorized to levy upon all property and rights to property (except property exempt by statute) belonging to a delinquent taxpayer.... An IRS levy, ... reaches only property which exists on the date of the levy. Thus, the Treasury Regulations provide that, except with respect to levies on salary or wages (as to which the Internal Revenue Code specifically authorizes a continuing levy), "[a] levy extends only to property possessed or obligations which exist at the time of the levy." Reg. § 301.6331(a)(1), emphasis added. Under the Regulations, an IRS levy also will reach a vested, accrued right to receive money in the future. The Regulations then provide that an IRS levy will reach property "when the liability of the obligor is fixed and determinable although 1441 the right to receive payment thereof may be deferred until a later date." Id.... This would cover, for example, a note providing for specific payments on fixed future dates. In contrast, an IRS levy will not reach a taxpayer's claim to receive payments in the future where the taxpayer does not, at the time of the levy, have a fixed and determinable right to those payments. For example, the IRS has ruled that a levy will not reach unvested, contingent rights to future payments. See Rev.Rul. 75-554, 1975 C.B. 478.... Similarly, the example in the Regulations stating that an IRS levy will reach future payments due under completed sales of personal property implies that an IRS levy will not reach amounts to be received in the future for sales of personal property that have not yet occurred. In re Hawn, 149 B.R. 450, 456 (Bankr. S.D.Tex.1993). See also 26 C.F.R. § 301.6331-1 (1992). Morey asserts that at the time he was served with the levy at issue he was not "in possession of or obligated with respect to property or rights to property," 26 U.S.C. § 6332 (West 1989 & Supp.1992), belonging to Burger, because his liability on the contract was disputed. See U.S. v. Bell Credit Union, 860 F.2d 365, 367 (10th Cir.1988) ("Only two defenses to a levy will excuse noncompliance by a third party thought to hold property of the taxpayer. The third party must establish that it is not in possession of the property or that the property was subject to prior judicial attachment or execution."). The IRS, in its brief, admits that "[r]esearch has uncovered no cases directly on point to Morey's argument." Plaintiff's Motion for Summary Judgment, p. 9. It then falls to this court to determine the nature of attorney Burger's interest, and whether that interest gave rise to an obligation chargeable to the defendant. "Because the IRS `steps into the taxpayer's shoes' and acquires whatever rights the taxpayer has with respect to the property, the IRS can succeed to rights no greater than those the taxpayer possesses." U.S. v. General Motors Corp., 929 F.2d 249, 252 (6th Cir.1991). "[S]tate law determines `the nature of the legal interest which the taxpayer had in the property.' National Bank of Commerce, 472 U.S. [713] at 722, 105 S.Ct. [2919] at 2925 [86 L. Ed. 2d 565]." Id. at 251. See also U.S. v. Bell Credit Union, 860 F.2d at 367 ("[W]e look to state law to determine what interest the taxpayer had in the accounts. (citation omitted) Federal law, however, determines the tax consequences of the right created under state law." (citation omitted)). The IRS characterizes the contract as a "receivable." Motion for Summary Judgment, p. 8. Defendant Morey likens this situation to attachment and garnishment process under, Oklahoma law; however, this argument presumes the interest without defining it. The court believes Burger's interest in the contract to be best characterized as a chose in action,[2] or as termed in Oklahoma, a "thing in action." A "thing in action" is defined in Okla.Stat.Ann. tit. 60, § 312 (West 1971) as "a right to recover money or other personal property, by judicial proceedings." Under Oklahoma law, a chose in action "is considered intangible personal property." Shebester v. Triple Crown Insurers, 826 P.2d 603, 608 (Okla.1992). See also Perkins v. Oklahoma Tax Commission, 428 P.2d 328, 330 (Okla.1967) ("[A] chose in action [is] a right to receive money shown to be due on 1442 liquidation and accounting and hence constitutes intangible property.") It is a "mere contingent interest." Norman v. Trison Development Corp., 832 P.2d 6, 11 (Okla.1992). By virtue of the chose in action, attorney Burger had an intangible, contingent interest in personal property to which the IRS succeeded on the date of levy. It has been held that "a federal tax lien can attach to contingent interests." (citations omitted) Big-heart Pipeline Corp. v. United States, 600 F. Supp. 50, 53 (N.D.Okla.1984), aff'd, 835 F.2d 766 (10th Cir.1987). Nevertheless, while federal tax liens may attach to contingent interests, a contingent interest must be vested. In re Hawn, supra. "A bundle of rights to contractual consideration need not have present existentiality in order to be `property'; such rights may operate in the future as long as they have value in the present." Randall v. H. Nakashima & Co., Ltd., 542 F.2d 270, 277 n. 13 (5th Cir.1976). The defendant Morey vehemently argues, consistent with the Treasury Regulations, that he had no obligation to the taxpayer arising from this interest on the date of levy, since an "obligation" exists only "when the liability of the obligor is fixed and determinable although the right to receive payment thereof may be deferred until a later date." 26 C.F.R. § 301.6331-1. See Nicholas v. Richlow Mfg. Co., 126 F.2d 16 (10th Cir.1941) (Treasury Regulations "neither unreasonable nor inconsistent with the statute [are] entitled to respectful consideration and should not be overruled except for weighty reasons."). Defendant's argument rests in the good faith dispute over the contract that the obligation or liability was not fixed at the time the levy was served. The IRS argues that all acts giving rise to the claim and cogent to its determination had been performed on that date and that if liability existed, it was fixed and determinable on the date of levy. Nevertheless, 26 U.S.C.A. § 6332(d) (West 1989 & Supp. 1992) (emphasis supplied) states for purposes of enforcement that the nonsurrendering person shall be liable "in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes." It thus appears that for purposes of enforcing a levy, one must be able to fix and determine the value of the taxpayer's property interest on the date of levy in order for there to be property subject to levy in the hands of the obligor. This is consistent with the fact that under subsection (d), interest accrues on the amount owed from the date of levy. Here, the taxpayer's rights were not vested on the date of levy. See Perkins v. Oklahoma Tax Commission, 428 P.2d 328, 330 (Okla.1967) ("Intangible personal property is such property as has no intrinsic value but which is representative or evidence of value."). The court holds that the taxpayer held a chose in action to which, upon levy, the IRS succeeded. Any obligation arising thereunder was not vested, or fixed and determinable on the date of levy. Therefore, defendant Morey was not "in possession of (or obligated with respect to) property or rights to property," 26 U.S.C.A. § 6332(a) (West 1989 & Supp.1992), on the date of levy. His subsequent nonsurrender did not violate the statute. This holding MOOTS the assertion that IRS is entitled to a fifty (50) percent penalty pursuant to 26 U.S.C.A. § 6332(d)(2) (West 1989 & Supp.1992). Accordingly, the Motion for Summary Judgment of defendant Morey is GRANTED. The Motion for Summary Judgment of plaintiff, United States, is DENIED. IT IS SO ORDERED. NOTES [1] 26 U.S.C.A. § 6332 (West 1989 & Supp.1992) provides in pertinent part: § 6332. Surrender of property subject to levy (a) Requirement. Except as otherwise provided in this section, any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary surrender such property or rights (or discharge such obligation) to the Secretary except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process. . . . . . (d) Enforcement of levy. (1) Extent of personal liability. Any person who fails or refuses to surrender any property or rights to property, subject to levy, upon demand by the Secretary, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes for the collection of which a levy has been made, together with costs and interest on such sum at the underpayment rate established under section 6621 from the date of such levy (or, in the case of a levy described in section 6331(d)(3), from the date such person would otherwise have been obligated to pay over such amounts to the taxpayer). Any amount (other than costs) recovered under this paragraph shall be credited against the tax liability for the collection of which such levy was made. (2) Penalty for violation. In addition to the personal liability imposed by paragraph (1), if any person required to surrender property or rights to property fails or refuses to surrender such property or rights to property without reasonable cause, such person shall be liable for a penalty equal to 50 percent of the amount recoverable under paragraph (1). No part of such penalty shall be credited against the tax liability for the collection of which such levy was made. [2] The concept of chose in action encompasses accounts receivable. The term "chose in action" is one of comprehensive import. It includes the infinite variety of contracts, covenants, and promises which confer on one party the right to recover a personal chattel or a sum of money from another by action. Thus, the general class of choses in action includes money due on a bond, note, or other contract, damages due for breach of contract, for the detention of chattels, or for torts, and the rights of action for recovery thereof. As illustrating the comprehensiveness of the term in this respect, it has been held to include open or unliquidated accounts, bills and accounts receivable, the right to receive contract payments under a contract for the sale of real property, and a policy of insurance. Shares of corporate stock are regarded as personal property in the nature of choses in action, as are certificates of corporate stock. 63A Am.Jur.2d Property § 26 (1984).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510423/	160 F.2d 878 (1947) KENYON v. AUTOMATIC INSTRUMENT CO. No. 10250. Circuit Court of Appeals, Sixth Circuit. March 17, 1947. 879 880 Eugene C. Knoblock and Milton A. Johnson, both of South Bend, Ind. (Oltsch & Knoblock and Hammerschmidt & Johnson, all of South Bend, Ind., and Bidwell & Schmidt, of Grand Rapids, Mich., on the brief), for appellant. Clarence J. Loftus, of Chicago, Ill., and Marshall M. Uhl, of Grand Rapids, Mich. (Clarence J. Loftus, of Chicago, Ill., and Uhl, Bryant, Snow & Slawson, of Grand Rapids, Mich., on the brief), for appellee. Before HICKS, ALLEN, and MARTIN, Circuit Judges. HICKS, Circuit Judge. Appellant, Blanche M. Kenyon, individually, and as Executrix under the Will of Bertram C. Kenyon, brought suit against appellee, Automatic Instrument Company, a Michigan corporation (herein called the Michigan corporation) for $150,000 for alleged breach of an agreement dated December 7, 1925 (Exhibit "A" to Complaint), to pay royalties upon the manufacture of a multiple disc phonograph alleged to have been invented by Kenyon. The answer, among other things, set up the defense, that the agreement under which appellant claimed was non-assignable and non-transferable, and was not transferred to appellee by the Receiver of Automatic Instrument Company (herein called the Delaware corporation) with which company the agreement (Exhibit "A") was made; and that appellee did not accept or agree to its terms and was therefore not liable under its provisions. The appellee filed a motion for judgment on the pleadings. The court, treating the motion as one to dismiss, and relying on the pleadings plus certain other documents and matter which had been introduced, dismissed the complaint. The agreement of December 7, 1925, was entered into between the Delaware corporation as first party, and Bertram C. Kenyon as second party. By its first paragraph, the Delaware corporation agreed to employ Kenyon until July 11, 1926, and to pay him $60 per week for the purpose of perfecting a multiple disc phonograph. By the second, Kenyon agreed to accept employment and cooperate with the Delaware corporation. By the third, Kenyon represented that he was the inventor of the multiple disc phonograph and that he, or the first party in his name, would attempt to cover the mechanism and operation of the machine by proper letters patent. Quoting "In the event that said patents are obtained by either said first or second party, the title thereto and all interest therein shall be the property of and belong to said first party, and the said second party does hereby give and grant, sell and assign unto said first party the exclusive right to make, manufacture, market, vend and operate the said phonograph, under his present rights and under future letters patent, according to the terms hereof, in any manner which it may desire to do, and covenants to and with the said party that performing its obligation under this contract it shall have, hold, and enjoy all the rights, benefits, titles, and returns of and from said invention, and that he will when so requested by said first party, duly and properly sign, seal, execute and deliver unto said first party proper assignments and any rights which may hereafter accrue under and by virtue of said invention." The fourth paragraph stated in part: "In consideration of the foregoing assignments and licenses, the said first party agrees that for each, of said machines manufactured by it, it will on or before the tenth day of the month succeeding the completion of such machine, pay to the order of the said second party * * * the sum of five Dollars. * * " The paragraph concluded that the license obligation was contingent upon the patents not being attacked in court or before a commission, etc. 881 The fifth and last paragraph is quoted in its entirety: "The terms upon which the license to manufacture and the assignment of prospective patents upon the said phonograph are given shall be and remain in force during the life and continuance of any or all patents issued upon the said mechanism to said second party, his heirs or assigns." The instrument was executed by the first party by its President and Secretary, and by Kenyon, in the presence of two witnesses. By an additional Memorandum executed on the same day, the Delaware corporation agreed to manufacture as many Multiple Record Phonographs as was consistent with their business policies and to pay second party a minimum of $1000 a year for five years on the undertaking in Paragraph Four of the Agreement, namely, to pay $5 royalty for each machine. Appellant's Bill of Particulars, which under Rule 12(e) of the Rules of Civil Procedure, became a part of her complaint, states, that Kenyon's invention, as disclosed to the Delaware corporation, prior to December 7, 1925, was constructed substantially as set forth in Patent No. 1,879,693, application for which was filed on July 15, 1927, and granted to the Delaware corporation September 27, 1932. The following quotation is taken from the face of the Letters Patent: "Bertram C. Kenyon, Wilmur W. Boa, and Clifford H. Green of Grand Rapids, Michigan, Assignors to Automatic Musical Instrument Company, of Grand Rapids, Michigan, a corporation of Delaware" (the Delaware corporation). Appellee's bill of particulars stated that the record changing mechanism in its machines and in which appellant was primarily interested, was substantially the same as in all machines manufactured since October 18, 1935. The case of Sligh Furniture Co. v. Automatic Musical Instrument Co.[1] (the Delaware corporation), a general creditors' bill, was brought in the District Court of the Western District of Michigan, and on February 10, 1931, a Receiver was appointed for the Delaware corporation. Appellant's bill of particulars stated that the basis of the claim here sued upon is that the license and grant of rights and obligation to pay royalties contained in Exhibit "A" was transferred to appellee, pursuant to an order in the Sligh case confirming the sale, a supplemental order confirming the sale dated December 20, 1932, the order authorizing the Receiver to execute assignment of patents in the same cause dated February 2, 1933, and the assignment of January 28, 1933, from Receiver to appellee, then known as Automatic Musical Instrument Company, a Michigan corporation; and, that appellee manufactured and sold certain multiple disc phonographs since October 18, 1935, which embody Kenyon's invention, as disclosed by him to the Delaware corporation on or before December 7, 1925. The District Court construed the contract of December 7, 1925 (Exhibit "A"), "as a license granting exclusive right to first party" (the Delaware corporation) "therein to make, sell and operate the devices in consideration of a royalty of $5.00 for each machine manufactured; and also, an agreement to assign the naked legal title in the patent if and when issued. No right to make, sell or use arose from this agreement to assign the naked legal title. That right was created by the license operating in presenti." The court ruled that the license was simply a non-assignable, executory contract which never became an obligation of the Receiver and that the complaint failed to state a cause of action. Before appellant could recover, she was required to show (1) that the agreement of December 7, 1925, constituted an assignment of the patent to the Delaware corporation and not a license; and (2) that the Receiver of the Delaware corporation in selling the patents to appellee as receivership assets sold them subject to the assignor's right to royalties. Rights in patents are of course established by statute. Title 35 U.S.C.A. § 40, provides in part, "Every patent shall contain a short title or description of the invention or discovery, 882 correctly indicating its nature and design, and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery * ." By section 47 of the same title: "Every patent or any interest therein shall be assignable in law by an instrument in writing, and the patentee or his assigns or legal representatives may in like manner grant and convey an exclusive right under his patent to the whole or any specified part of the United States. * " The classic case on the subject of patent assignments and licenses is Waterman v. Mackenzie, 138 U.S. 252, 255, 11 S. Ct. 334, 335, 34 L. Ed. 923. It points out that the "exclusive right to make, use, and vend the invention or discovery" is one entire thing and cannot be divided by law. Further "The patentee or his assigns may, by instrument in writing, assign, grant, and convey, either (1), the whole patent, comprising the exclusive right to make, use, and vend an invention throughout the United States; or (2) an undivided part or share of that exclusive right; or (3) the exclusive right under the patent within and throughout a specified part of the United States. [Rev.Stat.] § 4898 [35 U.S.C.A. § 47]. A transfer of either of these three kinds of interests is an assignment, properly speaking, and vests in the assignee a title in so much of the patent itself * . Any assignment or transfer, short of one of these, is a mere license, giving the licensee no title in the patent, and no right to sue at law in his own name for an infringement. * " The case points out, that an assignment to constitute a grant of title, must include the three rights, namely, to make, to use and to sell. There may be an assignment of an undivided part. See discussion in United States v. General Electric Co., 272 U.S. 476, 489, 47 S. Ct. 192, 71 L. Ed. 362; and in Green v. LeClair, 7 Cir., 24 F.2d 74. The Waterman case further points out, that whether the transfer of an interest or right under a patent is an assignment or a license, does not depend upon the name by which it is called, but upon the legal effect of its provisions. No particular form is required for an assignment but the instrument of transfer must be unambiguous and show a clear and unmistakable intent to part with the patent. McClaskey v. Harbison-Walker Refractories Co., 3 Cir., 138 F.2d 493, 500; American Tobacco Co. v. Ascot Tobacco Works, C.C., 165 F. 207. See also Sirrocco Engineering Co. v. Monarch Ventilator Co., C.C., 184 F. 84, wherein an instrument although called a license was construed as an assignment since it granted the sole and exclusive license to manufacture, sell and use. An assignment is not invalidated because the invention is assigned before the patent issues. Hendrie v. Sayles, 98 U.S. 546, 25 L. Ed. 176; John Tuman & Sons, Inc., v. Basse, 2 Cir., 113 F.2d 928; Dry Ice Corp. of America v. Josephson, D.C., 43 F.2d 408, 414. Further, an assignment is not invalidated because there is a reservation of royalty (Rude v. Westcott, 130 U.S. 152, 9 S. Ct. 463, 32 L. Ed. 888) wherein the assignor-patentee reserved one-fourth of the royalties or settlement to himself, the court holding that the assignee was trustee for the assignor of a fourth of the profits. See also American Type Founders, Inc., v. Dexter Folder Co. et al., D.C., 53 F. Supp. 602. When Exhibit "A" is examined in the light of these cases we conclude that it did constitute an assignment of Kenyon's rights in the invention with an agreement back for royalties. The draftsman of Exhibit "A" might have used more artistic language, but if that which he actually used carried a clear and unmistakable intent to part with the patent, it is sufficient. In Pressed Steel Car Co. v. Union Pacific R. Co., 2 Cir., 297 F. 788, 790, the court observed in a case involving the construction of a patent licensing agreement, " * * the meaning of any contract is to be primarily derived from the words used by the parties, however ill suited or badly chosen they may seem to judicial or other critics * * ." See Williston on Contracts, Rev.Ed., Vol. 3, Sec. 307. Exhibit "A" stated that Kenyon was the inventor of a multiple disc phonograph 883 which was identified in the bill of particulars as that later embodied in Patent No. 1,879,693, issued to the Delaware corporation, with Kenyon one of three assignors. In paragraph 3 Kenyon at one point covenanted that in the event patents were obtained by either party "the title thereto and all interest therein shall be the property of and belong to the first party." At another point he covenanted that if the Delaware corporation fulfilled its obligations under the contract it should "have, hold and enjoy all the rights, titles, benefits and returns of and from said invention." The instrument indicated that either party might seek the letters patent and Kenyon agreed that he would assign any rights which might thereafter accrue as the result of the instrument. There is, moreover, the covenant of Kenyon interlarded between the two clauses quoted that he "does hereby give and grant, sell and assign unto said first party the exclusive right to make, manufacture, market, vend and operate the said phonograph, under his present rights and under future letters patent. * * " It is to be noted that this part of the instrument does not employ the three words, "make, use and vend," but the clause does employ the words "make" and "vend" in haec verba; and the word "operate," although lexicographically not equivalent to the word "use" when read in the light of the entire instrument, would seem to carry that connotation. A license contract which conveys the right to make, use and vend for the entire term of the patent is an assignment vesting title to the entire patent in the assignee. Heywood-Wakefield Co. v. Small, 1 Cir., 96 F.2d 496, 499 and cases there cited. And by paragraph 5 of the agreement, the "license" was to remain in force during the life and continuance of the patent. We think that there was a clear intent to assign all of Kenyon's right, title and interest in the invention with an agreement to execute such further necessary assignments. The reservation of royalty was consistent with an assignment of all rights. We conclude that the District Court erred in construing it as an assignment of a naked legal title with no right to make, sell and use. There is support for this conclusion in the fact that the patent which appellant states without challenge embodied the invention conveyed, was issued in the name of the Delaware corporation with Kenyon listed as an assignor. We are further supported in this conclusion by a well recognized canon that the construction of a contract which is reasonable, fair and just will prevail over one that is unusual and extraordinary. Stoddart v. Golden, 179 Cal. 663, 178 P. 707, 3 A.L.R. 1060. We feel that it is unnecessary to go into the details of the receivership proceedings. Appellant alleged and appellee admitted that the Sligh suit against the Delaware corporation was commenced on February 10, 1931 and that the Receiver was appointed. The record shows that the Receiver, Grand Rapids Trust Company, was directed by an order of the court, to offer at public sale "all the property and assets of the defendant, Automatic Musical Instrument Company, of every name, nature and description"; that an offer was made by a Reorganization Fund of the insolvent and by a Stockholders Protective Committee of the insolvent. The court ordered that these offerors form a corporation and intervene in the suit so that the court might have full jurisdiction. The record shows that a corporation was formed which ultimately took the name of the Michigan corporation, the appellee. On February 2, 1933, the court entered an order, " * * that the Grand Rapids Trust Company as Receiver of Automatic Musical Instrument Company, a Delaware corporation, be and it is hereby authorized and directed to execute and deliver to Automatic Musical Instrument Company, a Michigan corporation" (which in 1938 took the present name of appellee) "an assignment or assignments of * * * all letters patent of the United States * * * belonging to Automatic Musical Instrument Company. * * " Appellee admits that it purchased certain assets and patents of the Delaware corporation, including the patent here involved, at a public sale conducted by the Receiver under the court's order, but insists that such sale was free and clear of any liabilities of Exhibit "A." No defense 884 is made that the appellee was a bona fide purchaser of these patents without notice of the agreement to pay royalties. The defense is, as we have said, that the rights of the parties under the contract were unassignable and non-transferable, that the court was without power to order an assignment of the liabilities of the Delaware corporation and did not in fact do so and that appellee did not accept or agree to be bound by the terms of the contract. We are not in accord with appellee's contention. The Receiver took the assets of the Delaware corporation as he found them. They were burdened with the obligations of Exhibit "A." He sold the assets under the direction of the court just as he took them. It cannot be said with any degree of justification that appellee took the patent here involved free from Kenyon's claim. It is an ancient maxim that "Equity follows the law" and the law conserves and enforces rights, never destroys them. Pomeroy's Equity Jurisprudence, 4th Ed., Sec. 1577. As a general rule the doctrine of caveat emptor applies to judicial sales or receivers' sales. Clark on Receivers, 2nd Ed., Vol. I, Sec. 490. If the court had desired to sell the patent free from Kenyon's claim it could easily enough have so decreed. The appointment of a receiver did not destroy Kenyon's rights under his contract. See Leupold v. Weeks, 96 Md. 280, 290, 53 A. 937. As to the assignment by the Receiver to appellee, It is no longer open to question that a receiver appointed by a court may execute an assignment of a patent owned by an insolvent debtor. Ager v. Murray, 105 U.S. 126, 131, 26 L. Ed. 942. Whether he may also transfer royalty rights on a patent has not been precisely decided, although the case of In re Waterson, Berlin & Snyder Co., 2 Cir., 48 F.2d 704 involving the transfer of royalty rights to a copyright is very close indeed. We do not discuss the Snyder case except to say that it cites Werderman v. Societe Generale d'Electricite, 19 Ch.Div. 246, an English case. In that case the plaintiff, in consideration of 1000 pounds paid to him by D. & M. and of their covenants contained in the deed, assigned to them certain letters patent for electric lighting. By this indenture, assignees covenanted among other things, "that the Plaintiff, his executors, administrators, or assigns should be entitled to receive 5 percent of all net profits, whether arising by means of royalties, sale or otherwise, which should be derived by the above assignees `and the survivor of them, and the executors or administrators of such survivor, their or his assigns' from the said letters patent in Great Britain. * * " Some time later D. & M. assigned the letters patent to the defendant company. Plaintiff sued defendant company for an account of profits, to which defendant replied that whoever is liable, no liability attached to it even though it was the assignee of the patent. Jessel, M. R., said on page 253, "How * * it can be argued in a Court of Equity that an assign can take the patent with notice of that arrangement and keep all the profits for himself, I am at a loss to understand." The quotation from Jessel, M. R., embodies the crux of this case. Appellee clings to its purchase and assignment from the Receiver. It does not seek the rescission thereof. Equity will not permit appellee to take the benefits of the sale and assignment to it and at the same time refuse Kenyon's executor the royalties to which his estate is entitled. The scope of the Federal Rules of Civil Procedure, rule 1, 28 U.S.C.A. following section 723c, lends itself to an appropriate decree, or, if the District Court should deem it advisable, an amendment of the complaint may be had to conform to the established facts. Dancel v. United Shoe Mach. Co., C.C., 120 F. 839. Finally, it is urged upon us that when the letters patent issued to the Delaware corporation as assignee, it appeared from the instrument that one Boa and one Green were assignors thereon, in addition to Kenyon, who, as inventor, made the contract for royalties upon which this suit is based; and that having acquired these rights of Boa and Green from the Receiver, it is free to make, sell and use under rights derived from them as joint assignors with Kenyon, without any obligation to Kenyon, citing Central Brass & Stamping Co. v. Stuber, 7 Cir., 220 F. 909. *885 The answer to this contention is, that in the authority cited, the suit was for infringement, based upon the right to exclude. Here the suit is rooted in contract, in the agreement to pay royalties upon each machine manufactured, and upon the equitable servitude raised thereby. See discussion in Talbot v. Quaker State Oil Ref. Co., 3 Cir., 104 F.2d 967. The District Court did not consider whether the fact that Boa and Green appeared on the face of the patent as assignors affected any right of Kenyon under the contract. It was not necessary to decision on the record, that consideration be given to such fact, because the basis of appellant's suit was the contract of December 7, 1925, which related to a completed invention and the application for the patent was not made until July 15, 1927, or more than eighteen months later (after the contract was executed). There is nothing to indicate that either Boa or Green had any interest in Kenyon's invention at the time of the execution of the contract. The decree will be reversed and the cause remanded for further proceedings not inconsistent herewith. NOTES [1] No opinion for publication.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510441/	160 F.2d 20 (1947) MARTIN v. MARTIN. No. 9331. United States Court of Appeals District of Columbia. Argued January 21, 1947. Decided February 24, 1947. Mr. Nathan L. Silberberg, of Washington, D. C., for appellant. Mr. Samuel L. Barker, of Washington, D. C., with whom Mr. William R. Lichtenberg, of Washington, D. C., was on the brief, for appellee. Mr. Joseph Luria, of Washington, D. C., also entered an appearance for appellee. 21 Before EDGERTON, CLARK and WILBUR K. MILLER, Associate Justices. WILBUR K. MILLER, Associate Justice. The appellant, Chester M. Martin, sued his wife, Constance, the appellee, for an absolute divorce on the ground of voluntary separation from bed and board for five consecutive years without cohabitation.[1] After hearing the evidence, the District Court of the United States for the District of Columbia made findings of fact which include the following: "5. That the parties hereto separated on or about the month of April, 1939, and that the parties have continued to live apart to the present date. "6. That the initial separation was caused by the actions of the plaintiff who ordered the defendant to leave their home. That defendant did not return to that home thereafter. That the defendant did not agree to this separation. "7. That the parties for all practical purposes have been unmarried since 1939. "9. That the defendant and the children of the parties, at the request of the defendant and on her behalf, have made known to the plaintiff at periodic intervals the desire and wish of the defendant that the plaintiff and defendant should resume a common home." Having so found, the court concluded as a matter of law that the husband was not entitled to an absolute divorce because there had been a substantial effort on the part of the wife from the date of separation to the date of suit to effect a reconciliation with her husband. From the judgment dismissing his complaint, the husband appeals. Since there was no dispute as to the fact that the parties had lived separate and apart, without cohabitation, for more than five consecutive years before the suit was filed, the only question is whether the separation was "voluntary" within the meaning of the statute. At its inception, the separation was not by mutual consent, as the husband ordered the wife to leave their home, and she protestingly complied. This court has held, however, that the issue is whether the separation was voluntary or involuntary throughout its duration. Its nature at the beginning is not determinative; for even if one party did not agree to the separation at the outset, he might thereafter affirmatively consent or silently acquiesce for the required period.[2] We have also held that " * * if either party does not voluntarily and continuously acquiesce in separation during five years, the statute does not authorize divorce even though the separation was originally voluntary on both sides."[3] We agree with the Court of Appeals of Maryland which, in dealing with a similar statute, said, "Where a relationship exists between two persons by reason of their common consent, it can only be voluntarily terminated by both, when both are willing and intend that it be terminated. If one of his own free will and accord ends the relationship against the will and wish of the other, the termination is voluntary as to the one, involuntary as to the other."[4] As that court added, the very word "voluntary" connotes an agreement, and unless the parties agree to live apart the separation cannot be voluntary. Because the District Court found that "the parties for all practical purposes have been unmarried since 1939," the appellant relies heavily upon the Parks, Boyce and Buford cases,[5] where we said that the liberal amendment of 1935, which is the Code section now under consideration, was intended to permit the legal ending of marriages which have ceased to exist in fact. Consequently, the appellant reasons that the court, having found that for all practical *22 purposes his marriage ended in 1939, should have granted a divorce. The argument is invalid for the reason that the statement quoted from the cited cases must not be extended so as to destroy the effect of the word "voluntary" which is present in the statute. The District Court may put a legal end to marriages which no longer exist in fact only in those cases where the separation has been continuously voluntary on the part of both husband and wife for the statutory period. In the three cases mentioned the facts were not comparable to the situation present here, for there was no attempt at reconciliation in the Parks and Buford cases, and such slight effort in the Boyce case that we held there was silent acquiescence in the separation. In each case, the court must determine from the evidence whether the spouse who resists the application for divorce actually did in good faith manifest a desire to continue the marriage relation, so as to justify the conclusion that there was no acquiescence in the separation. The District Court found in this case that the wife had not agreed to the separation, but on the contrary had consistently and insistently attempted to induce her husband to return to her. The evidence justifies that conclusion and so the judgment is affirmed. Affirmed. NOTES [1] District of Columbia Code (1940), Title 16, § 403. [2] Parks v. Parks, 73 App.D.C. 93, 116 F.2d 556; Bowers v. Bowers, 79 U.S. App.D.C. 146, 143 F.2d 158, 159. [3] Bowers v. Bowers, supra. [4] France v. Safe Deposit & Trust Co. of Baltimore, 176 Md. 306, 4 A.2d 717, 726. [5] Parks v. Parks, 73 App.D.C. 93, 116 F.2d 556; Boyce v. Boyce, 80 U.S.App. D.C. 355, 153 F.2d 229; Buford v. Buford, 81 U.S.App.D.C. ___, 156 F.2d 567.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510428/	588 S.W.2d 640 (1979) RAILROAD COMMISSION of Texas et al., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee. No. 8295. Court of Civil Appeals of Texas, Beaumont. September 6, 1979. Rehearing Denied October 4, 1979. J. Scott Wilson, Asst. Atty. Gen., Austin, for appellants. William C. Dowdy, Dallas, for appellee. CLAYTON, Justice. This is an appeal from a judgment of the trial court reversing and remanding an order of the Railroad Commission. 641 Appellee, Missouri Pacific Railroad Company (Railroad), filed its application with the Railroad Commission (Commission) of Texas seeking to discontinue its agency at Atlanta, Cass County, Texas, and to transfer agent service for Atlanta patrons to its Texarkana station. The hearing examiner in his report recommended that the Railroad be granted authority to discontinue its agency at Atlanta, Texas, to make Atlanta a non-agency station, and to transfer the agency functions performed there to its Texarkana Customer Service Center (CSC). The examiner also recommended denial of authority to dismantle the depot (which ruling is not in dispute here). The Commission sustained an exception to this recommendation on the grounds that the Texarkana CSC "is situated in the State of Arkansas and is outside the jurisdiction of the .. Railroad Commission," and denied the Railroad's application in its entirety. The Commission overruled Railroad's motion for rehearing, and the Railroad filed a petition in the district court seeking judicial review of the Commission's order. Upon hearing by the trial court, motions to dismiss were overruled, and the court "REVERSED and REMANDED to the RAILROAD COMMISSION ... for further proceedings consistent with this Judgment." From this judgment, the Commission has perfected its appeal. The Commission's first point complains of error in overruling its motion to dismiss this cause for lack of jurisdiction for the reason that the Railroad, in its motion for rehearing filed with the Commission, failed to allege any specific error upon which the Commission could reconsider Railroad's application. The Administrative Procedure and Texas Register Act, Tex. Rev.Civ.Stat.Ann. art. 6252-13a, § 16(e) (Vernon Supp.1978), makes the filing of a motion for rehearing a prerequisite to an appeal from any order of an administrative agency. This requirement has been held to be jurisdictional. Hurlbut v. State Board of Insurance, 555 S.W.2d 180 (Tex.Civ.App. Austin 1977, no writ); Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104, 107 (Tex.Civ.App.Tyler 1977, no writ). The Railroad's motion for rehearing before the Commission states the order issued by the Commission "is contrary to the law applicable to the case, and is without support in the evidence...." The purpose of such a motion is to provide notice to the Commission that the moving party is dissatisfied with the Commission's final order and that an appeal will be prosecuted if the ruling is not changed. Such motion provides the Commission an opportunity for review and reconsideration of its order. The Legislature did not see fit to insert any language into Sec. 16(e), Article 6252-13a, concerning specificity in such motion for rehearing. Moreover, where pleadings are required in administrative proceedings, their validity should not be tested by the technical niceties of pleadings and practice required in court trials. Railroad Commission v. Magnolia Petroleum Company, 130 Tex. 484, 109 S.W.2d 967 (1937); Thacker v. Texas Alcoholic Beverage Commission, 474 S.W.2d 258 (Tex.Civ.App.San Antonio 1971, no writ). We hold that such motion for rehearing filed by the Railroad with the Commission is sufficient as a prerequisite for appeal, as required by Tex.Rev.Civ.Stat. Ann. art. 6252-13a, § 16(e) (Vernon Supp. 1978). An appeal from an order of the Railroad Commission is governed by the substantial evidence rule. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946). The motion filed by the Railroad was sufficiently specific regarding the primary question for review in the District Court, since it points out the fact that the order issued by the Commission "is contrary to the law applicable to the case, and is without support in the evidence," thereby specifically pointing out that the order fails to meet the substantial evidence test which is the test for review in this administrative proceeding. Purolator Courier Corp. v. Railroad Commission, 548 S.W.2d 486 (Tex.Civ.App.Austin 1977, writ ref'd n. r. e.). The Commission's second, third, and fourth points complain, in essence, that the trial court erred in concluding the Commission 642 had jurisdiction to grant authority to the Railroad to discontinue the Atlanta agency and to transfer the agency's functions to the Texarkana station because the latter station was without the jurisdiction of the Commission. The examiner's Proposal for Decision contains certain findings of fact which were "affirmed, adopted and incorporated" in the Commission's final order, and thus became the findings by the Commission, as follows: 1. The work force at Atlanta consists of one employee whose time is devoted primarily to receiving and relaying telephone calls for the Texarkana CSC. The clerical work has been handled by Texarkana for three or four years and the carload portion since 1976. 2. Time studies conducted on two typical work days at the Atlanta agency showed the agent spent 52 minutes and 20 minutes, respectively, of productive time during 8-hour shifts. 3. The workload at Atlanta can be readily absorbed by the Texarkana CSC. 4. The Texarkana CSC offers Atlanta patrons direct access to (Railroad's) computer facilities which are not available at Atlanta. They can thus obtain information on car orders, billings, tracings, and rates, directly from the CSC at no additional cost. 5. Traffic for Atlanta will continue to be handled out of Texarkana by over-the-road trucks with store-to-door delivery at Atlanta. There will be no change in the handling of freight. 6. As a result of the discontinuance of the Atlanta agency, the Railroad will realize a savings of $20,000 per year. 7. There will be no change in train schedules or operations as a result of the granting of this application. 8. The proposed change makes reasonable provision for the performance of its duties to serve the public. 9. The proposed change will result in improved service to the public at Atlanta. 10. Public convenience and necessity no longer require the physical presence of an agent at Atlanta. The only basis for denying the application to discontinue the Atlanta agency and to transfer its functions to the Texarkana agency was that "the Texarkana Customer Service Center is situated outside the jurisdiction of the Railroad Commission." The evidence presented to the Commission was that, with reference to the Texarkana CSC, "part of our offices are in Texas and part of them are in Arkansas." The address itself is on the Arkansas side, but the building complex and facilities are on both sides. The Texas and Arkansas state line is a common street and "runs right through the middle of our facility at Texarkana." In view of this evidence, we hold the finding of the Commission that "the Texarkana Customer Service Center is situated outside the jurisdiction of the Railroad Commission" is not supported by substantial evidence. We are not convinced that the situs of the building in which paperwork for Atlanta is to be performed is the controlling factor. The key inquiry is: What control will the Commission have over Atlanta traffic in order to assure that the public will continue to be adequately served? The Commission's point of control is, and will continue to be, Atlanta, Texas. Even though the station work is done in Texarkana, Atlanta will still be the point of arrival and destination for freight, with the same service and schedule as now provided. Atlanta will continue to be a station in the tariffs, and the entire operation will be under the jurisdiction and control of the Railroad Commission which can impose whatever conditions it deems advisable and proper. It can retain jurisdiction for further re-opening and review, should such action become necessary, as is expressly stated in Missouri-Kansas-Texas Railroad Co. v. Fowler, 290 S.W.2d 922 (Tex.Civ.App. Austin 1956, writ ref'd n. r. e.). Finding no error, the judgment of the trial court is affirmed. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510446/	160 F.2d 729 (1947) UNITED STATES v. BRADFORD. No. 139, Docket 20278. Circuit Court of Appeals, Second Circuit. March 18, 1947. Writ of Certiorari Denied May 19, 1947. 730 Robert L. Bradford, pro se. Adrian W. Maher, U. S. Atty., of Bridgeport, Conn., and Thomas J. Birmingham, Asst. U. S. Atty., of Hartford, Conn., for appellee. Before SWAN, CHASE, and CLARK, Circuit Judges. Writ of Certiorari Denied May 19, 1947. See 67 S. Ct. 1351. CLARK, Circuit Judge. Defendant pleaded nolo contendere to an information charging him with using preference ratings established under § 301 of the Second War Powers Act, 50 U.S.C.A.Appendix, § 633, to secure quantities of electrical equipment greater than the ratings called for. He now appeals from a sentence imposed pursuant to his plea. His contention, that the information fails to charge an offense, survives his plea. United States v. Ury, 2 Cir., 106 F.2d 28, 124 A.L.R. 569; United States v. Max, 3 Cir., 156 F.2d 13. His further claim of authority to obtain the equipment under other preference ratings is, however, merely an attempt at denial, contrary to the admissions of his plea. Forthoffer v. Swope, 9 Cir., 103 F.2d 707. Contrary to defendant's argument the information was not invalid because it did not allege publication in the Federal 731 Register of the regulation violated, Priorities Reg. No. 3, 32 CFR, Cum.Supp., § 944.23, 7 F.R. 7887 as amended. The courts may take judicial notice of the regulations of federal administrative agencies. Caha v. United States, 152 U.S. 211, 221, 222, 14 S. Ct. 513, 38 L. Ed. 415; Thornton v. United States, 271 U.S. 414, 420, 46 S. Ct. 585, 70 L. Ed. 1013; United States v. Shapiro, 2 Cir., 159 F.2d 890. Nor was it invalid for failure to allege that the commodities involved were covered by published general priority orders. Under the regulations private persons having difficulty in obtaining uncontrolled commodities to complete defense contracts could secure preference ratings by individual written application to the War Production Board. The Board endorsed upon the application the grant of a preference rating for the commodities needed under the particular contract and returned the application to the sender. P R-2, 32 CFR, Cum.Supp., § 944.22, 6 F.R. 4684. Once "assigned" by the Board, such a rating could be "applied" (used) by the recipient to secure the proper quantity of the commodities he needed. The supplier of these commodities could in turn "extend" (use) the rating to secure from subsuppliers the commodities he needed to fill the original rating holder's order. The term "apply" denoted an original use, the term "extend" a subsequent use. Possession and misuse of a rating, either by application or by extension, were therefore but details of proof for the prosecution, which the defendant admitted by his plea. Also unnecessary were allegations of all the methods of violation open to defendant. Specifically the information charged that defendant abused preference ratings by extending them; it was unnecessary to allege that defendant did or did not also illegally apply them. The argument that as applied to the commodities here involved PR-3, supra, is unconstitutional, we consider frivolous at this late date. See United States v. Randall, 2 Cir., 140 F.2d 70; Shreveport Engraving Co. v. United States, 5 Cir., 143 F.2d 222, certiorari denied 323 U.S. 749, 65 S. Ct. 82, 89 L. Ed. 600. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510429/	160 F.2d 422 (1947) BADALAMENTI et al. v. UNITED STATES. No. 145, Docket 20430. Circuit Court of Appeals, Second Circuit. February 21, 1947. 423 J. Vincent Keogh, U. S. Atty., and Kirlin, Campbell, Hickox & Keating, all of New York City (Raymond Parmer and Vernon Sims Jones, both of New York City, of counsel), for appellant, United States of America. Albert Martin Cohen, of Brooklyn, N. Y., and Harold L. Fisher, of New York City (Solomon A. Klein, of Brooklyn, N. Y., of counsel), for libellants. Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The libellants Badalamenti and Scagnelli were longshoremen employed by John T. Clark & Sons. They were engaged in loading the Steamship El Oriente, a vessel owned and operated by the United States. This suit was brought in admiralty to recover for personal injuries to the libellants occasioned by falling through open No. 1 hatch which they suffered on November 22, 1943, while on shipboard. At the time of the accident the work of their gang was at No. 2 hatch in the lower tween deck. The accident happened when they left No. 2 hatch and walked forward on the lower tween deck in the direction of No. 1 hatch into which each one of them fell. Badalamenti was the first to fall; Scagnelli followed shortly thereafter. Both No. 1 and No. 2 were cargo hatches between which there was a deck space of 56 feet. John T. Clark & Son were employed by the respondent under an agreement which required the respondent to "furnish and maintain in good working order * * necessary lights on wharves, piers and vessels when lights are required due to darkness," and to furnish "ropes for falls and dunnage." Prior to and at the time of the accident, another independent contractor, Chelsea Ship Repair Company, was engaged in sheathing bulkheads and decks with lumber in order to form magazines for carrying ammunition. The libellants were on board the ship for the first time on Saturday, November 20, and worked from 8 a. m. to 12 noon on the upper tween deck at hatch No. 2. They were engaged in loading lumber for the sheathing. While working on the upper tween deck the libellant Badalamenti saw a chain locker and a big light with a full chain in the bow of the ship on the forward side of hatch No. 1. On that Saturday the carpenters group of the Chelsea Ship Repair Company completed all the work that had to be done by them at hatch No. 1 and hatch No. 2 with the exception of a little work to be done on the bulkhead of hatch No. 2. At 5 o'clock that afternoon the carpenters closed both hatches at the top and upper tween decks but left the hatches open on the lower tween decks. With respect to the covers of hatch No. 1 on the lower tween deck the respondent's witness testified that they were stowed away in piles near the hatch. He further admitted that no light was left there and that no guardrail or ropes were put around the open and unlighted hatch. The trial court made the following findings which were supported by the evidence: "Seventh: The libelants returned to work on said ship at 8:00 A. M. on the date of the accident, a Monday, and the accident complained of occurred shortly thereafter. Upon arrival at their place of work on the date of the accident, the libelants were assigned to load at Hatch No. 2 on the lower tween deck. Before proceeding to the tween deck, they took the iron doors, or hatch covers, off the top-most Hatch No. 2 on the upper tween deck, and at that time it was observed that the hatch covers, at Hatch No. 1, on the upper tween deck, were closed. "Eighth: Due to some difficulty at Hatch No. 2, the gang was compelled to have lowered to it, two skidboards which were 424 put over the place where the hatch covers should have gone, but did not fit. The skid-boards were then tied. It was necessary in the orderly performance of their work, at times, to stand on these skid-boards. At about 9:30 A. M. the first draft was lowered and the libelants and the other members of the inshore part of the gang were waiting their turn to take care of this draft. There was some trouble with the draft because it hit the skid-boards when it came down. It was then found that the skid-boards had a tendency to slide, and for that reason, the men were fearful of standing on them. It was then decided to get some rope in order to pull the drafts in, thus avoiding the danger of standing on the skid-boards. "Ninth: Daylight was coming into Hatch No. 2, and in addition, two clusters of light, one on each corner of the hatch, provided the light by which the men worked. This light penetrated some 15 to 20 feet toward Hatch No. 1. "Tenth: The libelant, Jack Badalamenti, decided to walk in the direction of Hatch No. 1 for the purpose of finding the rope necessary to do this work. He fell into Hatch No. 1 which was open, unguarded, and unlighted, and around which there were no hatch combings. The libelant, Paul Scagnelli, who was the header of the gang, missing his coworker, the libelant Jack Badalamenti, proceeded toward Hatch No. 1 to look for him, and fell into the same hatch. "Eleventh: The distance between Hatch No. 1 and Hatch No. 2 was approximately 50 feet. "Twelfth: Before proceeding to Hatch No. 1, libelant Jack Badalamenti searched for rope at Hatch No. 2 but could * * find none. There was rope on the dock, a long distance from the place where the men were working, but due to the fact that war work was being done, and speed was essential, he elected to go toward Hatch No. 1 for the purpose of finding this rope. In walking towards Hatch No. 1, he intended to snap on a chain light which he expected to find in a locker in which rope of the kind needed, was customarily kept on board ship. "Thirteenth: It is admitted that there was no such light, but libelant Jack Badalamenti saw such a chain light in such a chain locker on the upper tween deck on the Saturday prior to the accident, and therefore reasoned that there must be a similar locker with a chain light on the lower tween deck. "Fourteenth: It is admitted and conceded that there was a light in such a chain locker on the upper tween deck, as described by libelant Jack Badalamenti. "Fifteenth: The libelant Jack Badalamenti walked some 15 to 20 feet, it got dark, he stretched out his hand and kept walking, endeavoring to reach for the aforementioned light. He took two or three steps after it actually got dark, before he fell into Hatch No. 1. Before falling, as he kept walking, it got darker, but not absolutely dark. There was a haze in front of him. He expected to find a light as he had seen on the upper deck. Hatch No. 1 was closed on the upper tween deck, and said libelant had a right to expect, in the absence of lights, guards, or combings that Hatch No. 1 on the lower tween deck was closed, and he could not anticipate that Hatch No. 1 on the lower tween deck was left open. * * * * * * "Twenty-eighth: The libelant Paul Scagnelli knew that the libelant Jack Badalamenti had gone after rope and noticed in which direction he had gone. Libelant Paul Scagnelli knew there was another hatch in that direction but he did not think it possible to go from the hatch where he was working to another hatch, as on other ships that he had worked on, there was a partition between the two hatches. "Twenty-ninth: The libelant, Paul Scagnelli, went to look for the libelant Jack Badalamenti a short time after he had gone. As libelant Paul Scagnelli walked, it started to get dark; he slowed down and he figured that he would meet a partition. He called for libelant Jack Badalamenti twice, and at the second call, fell into empty space down Hatch No. 1. He took more than three steps in the dark. * * * * * * "Thirty-second: That the libelant Paul Scagnelli was negligent to some extent, but only to the extent that the libelant Jack Badalamenti's non-return would put him on notice. 425 "Thirty-third: That the failure of the respondent to perform its duty as libelant Paul Scagnelli had a right to expect it would, the fact that he expected to meet a partition, and the exigencies of the circumstances are factors in the amount of percentage he should be charged with, which percentage so found, must be offset from the verdict to which he would be entitled." The trial court also held that none of the members of the stevedoring gang, including the two libelants, had been warned of the open hatchway No. 1; that leaving an open hatchway under the circumstances of this case was dangerous, was not a condition which a reasonably prudent longshoreman would foresee and constituted an unreasonable risk of bodily harm to people likely to use that part of the vessel. Upon the record we have outlined, the trial court found Badalamenti free from contributory negligence and entitled to an award of $21,000. It found Scagnelli had suffered damages for his personal injuries to the amount of $52,000 which, however, should be reduced to $41,600 on account of his contributory negligence that had contributed to the accident to the extent of 20%. The respondent contends that it was not negligent to have a cargo hatch open when the ship was awaiting cargo and argues that it had no reason to anticipate the presence of Badalamenti in the neighborhood of hatch No. 1 because that place was outside the orbit of his work. We think it too great a limitation upon the safeguards which ought to be provided for a workman to hold that if he strays about 50 feet from the place in which he is to work, in search of something to aid him in his task, he has no right to a warning of unknown danger or other protection. Respondent contends that Badalamenti should not have left the place where he was working and have gone about the unlighted portions of the lower tween deck to search for rope to fasten together the boards that were being lowered. But Badalamenti had tried to find some rope at hatch No. 2 and found none and had apparently volunteered to go to the neighborhood of hatch No. 1 to see if there was not some rope in a locker which he supposed was there, for he had seen such a locker on the deck above that had a snap light in it. After he had proceeded 15 or 20 feet, and beyond a point where the light coming from open hatch No. 2 had penetrated, he was of course aware that he was in an area of darkness; nevertheless, he had no reason to suppose that hatch No. 1 was open and that he ran any risk, other than the general one of stumbling against something in the dark, for hatch No. 1 was closed on the deck above. We cannot say that he was likely to encounter any danger in attempting slowly to traverse this passage if, as he supposed, the hatch was not open. Had it not been open he would not have plunged into the open hatch and met the fate which caused his injuries. Under the circumstances the trial judge was right in holding that Badalamenti's fall and injuries arose solely from the negligence of the respondent in not warning the stevedores that there was an open hatch within about 50 feet of where they were to work. We think it was foreseeable that they might have occasion to go to parts of the deck that were not lighted in pursuit of their calling. If they did, the open hatch was a great danger for it was not protected by any guardrail or ropes, or by any coaming sufficient to prevent an accident. It is not reasonable to suppose that stevedores would not be likely to go about the deck where they were working and not to foresee danger to them from an open hatch which was only about 50 feet away. As a distinguished court said in Pioneer S. S. Co. v. McCann, 6 Cir., 170 F. 873, 878: "It is hardly to be expected that men entering or working within a ship's hold will always keep within the exact parts of the hold where their employment, strictly construed, would call them." The opinion of Judge Woods in The Omsk, 4 Cir., 266 F. 200, supports the view that some warning or protection against an open hatch was required in circumstances like those here, where the open hatch was in the control of the shipowner. See also West India & P. S. S. Co. v. Weibel, 5 Cir., 113 F. 169. It is true that in Long v. Silver Line, Ltd., 2 Cir., 48 F.2d 15, 16, Judge Swan said: "there is no negligence 426 in leaving open a cargo hatch if the ship is awaiting cargo," and Judge Learned Hand said the same thing by way of dictum in Hardie v. New York Harbor Drydock Corporation, 2 Cir., 9 F.2d 545, 547, relying upon an older decision by this court in The Saratoga, 2 Cir., 94 F. 221. In both Long v. Silver Line, Ltd., and The Saratoga, the libellant had reason to suppose that there might be danger from an open tank or hatch. But here respondent's ship was having magazines installed for carrying ammunition, the upper tween deck hatch No. 1 was covered, and stevedores were likely to be and apparently were misled as to absence of covers on the hatch below. The trial judge held that Scagnelli was guilty of negligence that contributed to the extent of 20% to the accident which he suffered. The theory was that the failure of Badalamenti to return gave him notice that there would be some special danger in following him into the unlighted hold. But Scagnelli had no reason to anticipate an open hatch as a danger to himself or to suppose that it had occasioned Badalamenti's failure to return. Moreover, even if a more deliberate consideration of events might have made Scagnelli apprehend danger to himself, it cannot be said to have been unreasonable or negligent to disregard a somewhat strained caution when going to find a fellow-workman who had disappeared. In Wagner v. International Ry., 232 N.Y. 176, 180, 133 N.E. 437, 438, 19 A.L.R. 1, Judge Cardozo, in reversing a finding of contributory negligence under somewhat analogous circumstances, said: "The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had. * * *" Accordingly we hold that Scagnelli was not guilty of contributory negligence to the degree of 20% or to any degree and that he should receive the full amount of damages which the trial court found that he had actually sustained, namely, $52,000. The decree is affirmed as to Badalamenti and modified as to Scagnelli by increasing the award of the latter from $41,600 to $52,000, and is otherwise affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510445/	148 N.J. Super. 465 (1977) 372 A.2d 1147 AMERICAN NATIONAL BANK AND TRUST OF NEW JERSEY AND WILLIAM C. GABRIELSEN, EXECUTORS OF THE LAST WILL AND TESTAMENT OF HELEN A. GABRIELSEN, PLAINTIFFS-RESPONDENTS, CROSS-APPELLANTS, v. PRESBYTERIAN HOMES OF NEW JERSEY, DEFENDANT-APPELLANT, CROSS-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued February 9, 1977. Decided March 14, 1977. 467 Before Judges LORA, CRANE and MICHELS. Mr. Arthur S. Lane argued the cause for appellant (Messrs. Smith, Stratton, Wise and Heher, attorneys; Ms. Ann Reichelderfer on the brief). 468 Mr. James E. Davidson argued the cause for respondents (Messrs. Farrell, Curtis, Carlin, Davidson and Mahr, attorneys; Mr. Gerard E. Hanlon on the brief). Mr. Stephen D. Berger, attorney for New Jersey Association of Non-Profit Homes for the Aging, submitted a brief amicus curiae. The opinion of the court was delivered by LORA, P.J.A.D. Plaintiffs, co-executors of the estate of Helen A. Gabrielsen, on September 25, 1974 filed a complaint against defendant seeking the return of the $33,000 capital fee paid by decedent when she became a resident of Meadow Lakes, a retirement community owned and operated by defendant, as well as other statutory remedies. The complaint alleged that defendant had violated the Retirement Community Full Disclosure Act, N.J.S.A. 45:22A-1 et seq., in that (1) on September 14, 1970, and for six months thereafter, defendant had not registered under the act, (2) had not delivered a current Public Offering Statement to decedent prior to or at the time she signed the Meadow Lakes Residence Agreement, and (3) had violated the act by failing to disclose in a Public Offering Statement filed some six months after decedent had paid defendant the $33,000 capital fee that the fee would not be refunded in the event of her death while a resident of Meadow Lakes. Cross-motions for summary judgment bottomed upon affidavits, depositions and answers to interrogatories were heard and the trial judge granted summary judgment in favor of plaintiffs, who then moved for an award of attorneys' fees pursuant to the statute. Judgment was entered awarding plaintiffs $33,000 in damages, $10,708.33 in interest, counsel fees of $1,600 plus $238.65 in costs and disbursements, for a total of $45,546.98. Defendant appeals, contending that the trial judge erred in finding that (1) plaintiffs had standing to bring the suit, thereby creating a windfall for the beneficiaries of decedent's 469 estate where both parties to a valid contract had enjoyed complete performance of its terms; (2) defendant is not exempt from the Retirement Community Full Disclosure Act; (3) defendant had not complied with the act; (4) plaintiffs were not estopped from bringing the action, (5) in granting plaintiffs the statutory remedy of rescission under N.J.S.A. 45:22A-16(b), and (6) in refusing to give his decision prospective application only. Plaintiffs cross-appeal from the trial judge's refusal to grant the requested amount of attorneys' fees. Meadow Lakes is a total care retirement community which is one of four owned and operated by defendant Presbyterian Homes of New Jersey. The living arrangements and services provided are fully described in Presbyterian Homes v. Division of Tax Appeals, 55 N.J. 275 (1970). Preliminarily, we note that aside from consideration of the Retirement Community Full Disclosure Act, the residence agreement or life-care contract is fully enforceable. See Bower v. The Estaugh, 146 N.J. Super. 116 (App. Div. 1977), and Riemenschneider v. Fritz Reuter Altenheim, 146 N.J. Super. 123 (App. Div. 1977). Plaintiffs contend for the first time on appeal that defendant failed to clearly set forth in the offering statement delivered to Mrs. Gabrielsen that the capital fee would not be returned to her estate if she died after occupying the apartment, thereby omitting a material fact required to be stated in the prospectus or necessary to be stated in order to make the prospectus not misleading under N.J.S.A. 45:22A-16(a). In support of this contention plaintiffs assert that the prospectus only briefly refers to the residence agreement for the rights and obligations of the parties, information regarding disposition of the capital fee upon a resident's death being set forth in the residence agreement and which itself is misleading because the clause is grouped with several other provisions under the heading "Termination of this Agreement" and is not included under the heading 470 "Financial Arrangements." Plaintiffs also argue that their contention is further supported by the Recommended Form for Public Offering Statement found in Appendix A following N.J.A.C. 5:17-6.11, which lists in its Part IV, "refund privileges, if any." Aside from the fact that this issue was not raised below and that there are no findings in the record with respect to any of said allegations, we see no merit in plaintiffs' claim. The prospectus did in fact refer to the residence agreement in which the "no refund" provision is clearly set forth. Nor is there any requirement in the statute or regulations that such clause appear in the prospectus, N.J.S.A. 45:22A-7; N.J.A.C. 5:17-4.8. Our examination of the residence agreement satisfies us that the disclosure in the Residence agreement is sufficient to prevent the prospectus from being misleading. The primary issue for our determination is the applicability of the Retirement Community Full Disclosure Act to Meadow Lakes. N.J.S.A. 45:22A-2(b) defines a retirement community as * * * any complex or proposed complex of more than 10 units, whether contained in one or more buildings or whether constructed on separate lots, offered for sale or lease as part of a common promotional plan where such community is advertised or represented as a retirement community or as a community primarily for retirees or elderly persons, or where there is a minimum age limit tending to attract persons who are nearing retirement age; * * . Defendant asgues that the residence agreement evidences neither a sale nor a lease and that consequently the act is not applicable. Concededly, no sale is involved. To distinguish its residence agreement from a conventional lease, defendant cites the many services provided at Meadow Lakes which are not present in a landlord-tenant relationship e.g. medical care, maid service, linen and towel service, and meal service consisting of three meals a day in a 471 common dining hall. Defendant further asserts that decedent did not have the right to exclusive possession of the unit she occupied in that Meadow Lakes retained a key to her unit and in its discretion could have removed her to a hospital if she had become ill, with the right to reassign her to a comparable unit upon her discharge from the hospital. The agreement expressly disclaims transfer of any proprietary rights or interest to the resident. Johnson v. Kolibas, 75 N.J. Super. 56 (App. Div. 1962), certif. den. 38 N.J. 310 (1962). Defendant also relies on the opinion of the Attorney General of New Jersey, issued in December 1973 and a construction of the act by the agency charged with its enforcement, that the Meadow Lakes Residence Agreement is not a lease and that the community is therefore not subject to the Act. In addition, defendant argues that the Interstate Land Sales Act, 15 U.S.C.A. § 1701 et seq. which was the model for the act, is limited in scope to conventional real estate transactions. Finally, defendant notes that the definition of "unit" in the act was amended to include "a share or membership interest of a cooperative housing corporation or association which entitles the holder thereof to possess and occupy for dwelling purposes a house, apartment or other structure owned or leased by said corporation or association, or to lease or purchase a dwelling constructed or to be constructed by said corporation or association * * ." N.J.S.A. 45:22A-2(c) as amended by L. 1975, c. 335, § 1, eff. March 3, 1976. Since the Legislature failed to refer to the type of accommodations here involved when it so amended the act, defendant states that this is further evidence that the act was not intended to apply to communities like Meadow Lakes. Plaintiffs counter that the intent of the parties and the nature of the transaction mandate a determination that the residence agreement constituted a lease. They assert that decedent's initial letter to defendant expressed her interest in moving from her present apartment into a "one-bedroom 472 apartment" at Meadow Lakes. Plaintiffs further note that the arrangement had many characteristics of a lease, such as the payment of a "monthly rate," which rate could be increased only upon 30 days' written notice to the resident. If payment of the "monthly rate" were not made within 30 days after receiving the monthly statement, Meadow Lakes could give written notice to the resident that if payment were not made within 15 days thereafter, it could terminate the agreement. Although the duration of the arrangement was unclear because it was intended to continue until death, plaintiffs state the relationship between decedent and Meadow Lakes was for a definite period of time, as evidenced by the interval of payments of the monthly rate and, citing Maier v. Champion, 97 N.J.L. 493, 495 (E. & A. 1922), they further aver that a month-to-month tenancy may be inferred from the monthly payment schedule. It is further suggested by plaintiffs that most landlords retain keys to tenant premises and that restrictions in leases with respect to tenants' conduct are common. Plaintiffs contend decedent's apartment was legally in her exclusive possession; that she was not a roomer or lodger with a mere right to use the premises in exchange for her $33,000 capital fee and monthly charge of approximately $500 a month. Moreover, plaintiffs point to several places in the Meadow Lakes brochures where management refers to the living accommodations as apartments and to the rate schedule which states that the "Capital Fee is the consideration for a lifetime lease on the specified apartment, subject to the terms of the Residence Agreement." Plaintiffs also refer to the determination in Presbyterian Homes v. Division of Tax Appeals, supra, that Meadow Lakes, although nonprofit, is not tax exempt since it is not run for charitable purposes, and that the operation of Meadow Lakes "is more related to the bargaining of the commercial market place," Id. 55 N.J. at 287, in support of their contention that the arrangement is nothing more than a lease. They additionally assert that the act, being remedial, 473 should be liberally construed and that restricting applicability of the act to narrow definitions of "sale" or "lease" would negate the purposes of the act and frustrate the public policy of the State. Referring to the definition of "disposition" in the act, which "includes sale, lease arrangement, award by lottery or any other transaction concerning a subdivision or community," N.J.S.A. 45:22A-2(k), plaintiffs contend that an arrangement such as the one at hand falls within the statutory scheme. Finally, plaintiffs argue that the Attorney General's opinion is contrary to the plain meaning of the act and is therefore entitled to little, if any, weight. The trial judge, in holding that the residence agreement was a lease within the meaning of the act so that the act was applicable, stated that this view was supported by the relevant legislative history and that it would be "offensive to the intent and purpose of the statute to rely upon any doctrinaire concepts or common law concepts of what is or what is not a lease." However, consideration of the statute as a whole leads us to conclude that the Legislature had a conventional "sale or lease" of property in mind when it enacted this legislation and that it is for the Legislature to extend the scope of the act's coverage to arrangements such as the Meadow Lakes residence agreement if it sees fit to do so. In reaching this conclusion, we are first mindful that the residence agreement does not contain the language normally found in a lease. Thiokol Chem. Corp. v. Morris County Bd. of Tax., 41 N.J. 405, 416 (1964). The contract is not of definite duration. Thiokol, supra at 416. Although plaintiffs contend that a month-to-month tenancy may be inferred from the payment of the "monthly rate," we are of the view that such an inference is not justified under the circumstances of this case. Furthermore, either party may terminate the arrangement at will. Thus, the arrangement has the characteristics of a license or similar limited status not a lease. Thiokol, supra at 417. Then, too, the estate of the occupant obtains no property rights arising out of the contract, such 474 as the right to possess the apartment or to receive the benefit of any of the services which are provided. No person other than the resident may occupy the accommodations covered by the agreement, except with the approval of the defendant. We do not believe that a different result is mandated by the fact that certain of the Meadow Lakes papers refer to the units as apartments and, in one instance, to the contract, as a lease. A reading of the residence agreement in its entirety dispels any conception of a leasehold interest. We are of the further view that the Legislature did not intend, by this act at least, to regulate life care contracts which have been upheld in New Jersey for many years. See Fidelity Union Trust Co. v. Reeves, 96 N.J. Eq. 490 (Ch. Ct. 1924), aff'd 98 N.J. Eq. 412 (E. & A. 1924). The statement of purpose attached to the legislation provides: The purpose of this legislation is to require full and fair disclosure of the nature of interests in real estate subdivisions which are sold as retirement subdivisions or communities within New Jersey. As such, it is intended to prevent deceptive and fraudulent advertising to a sector of the population which has become most susceptible to such practices during the last few years. The legislation provides for the disclosure of all information concerning the subdivider and the physical characteristics of the development, information concerning the legal status of the subdivided property, statements concerning the condition of title including encumbrances, and appropriate financial information, as well as, the brochures, or "public offering statements" which are to be used for promotional or advertising purposes. This disclosure shall be submitted to the Division of Housing and Urban Renewal within the State Department of Community Affairs. After appropriate review by the division a registration will be issued permitting the subdivider to continue with his promotional activities. Both civil and criminal penalties are provided if any of the statements submitted to the division are purposely erroneous and the division has the power to revoke any senior citizens' subdivider's registration, if a violation has been found after appropriate examination and review. This act will complement the Interstate Land Sales Full Disclosure Act recently adopted by Congress (Sec. 1400 [1401] et seq. of P.L. 90-44 [90-448]). This Federal legislation provides for full disclosure of interests in real estate subdivisions, not restricted to those sold to senior citizens or people in retirement, promoted, advertised 475 or sold through the mails or in Interstate Commerce. This law is also similar to full disclosure acts covering most subdivisions (again, not restricted to sales to senior citizens), passed in a number of jurisdictions including California (Cal. Bus. & Prof. Code, Secs. 11000-11023); Arizona (Ariz. Rev. Stat., Secs. 32-2181 to 32-2185); Florida (Fla. Stat. Ann., Secs. 475.47-475.55); and New Mexico (New Mex. Stats. Ann., Secs. 70-3-1 to 70-3-9). As the act's statement of legislative purpose indicates, the act was inspired by and as a complement to the Interstate Land Sales Full Disclosure Act (15 U.S.C.A. § 1701 et seq.), which comprehends only conventional land subdivisions and conventional leasehold developments. Moreover, the statement of purpose, the act itself (N.J.S.A. 45:22A-6, 7) and the regulations (N.J.A.C. 5:17-1.1 et seq. and Appendix A "Recommended Form of Public Offering Statement") are all geared to the conventional apartment lease and subdivision lot sale and not at all to the unique features of lifetime care contracts of the type here involved. Parenthetically, we note that our conclusion that decedent's agreement with defendant is not within the comprehension of the act is in accordance with the decision of its administering agency, the Division of Housing and Urban Renewal of the Department of Community Affairs and the opinion of the Attorney General that the residence agreements used at Meadow Lakes do not involve any "sale or lease" within the terms of the act and hence the act does not apply to such a community. Such administrative construction of legislation, while not binding, is entitled to weight in judicial determination of the statute's meaning and intent where the statute is ambiguous. Service Armament Co. v. Hyland, 131 N.J. Super. 38, 48-51 (App. Div. 1974), rev'd on other grounds 70 N.J. 550, 561-562 (1976). Notwithstanding our determination that defendant is exempt from the provisions of the Retirement Full Disclosure Act, our review of the record establishes that defendant nevertheless did in fact comply with the provisions of the act and the regulations promulgated to effectuate its purposes. 476 It is plaintiff's position that the regulations which permitted Meadow Lakes to operate under a temporary exemption had the effect of postponing the effective date of the act and were therefore beyond the scope of the agency's authority and void; accordingly, defendant's failure to file its public offering statement prior to decedent's signing her agreement was a violation of the registration provisions of the act for which defendant is liable. Alternatively, plaintiffs argue that defendant failed to comply with those regulations in that it did not provide decedent with written notice that the public offering statement was being prepared and that it would be distributed to her when it was completed. N.J.A.C. 5:17-1.6. We disagree. N.J.S.A. 45:22A-11(e) (2) permits the agency to "Grant exemptions if allowed by rules promulgated under subsection (a)," which subsection provides in part that the agency "shall adopt, amend or repeal such rules and regulations as are reasonably necessary for the enforcement of the provisions of this Act, * * * and other rules as are necessary and proper to effect the purpose of this Act." The act went into effect on June 1, 1970, 180 days after its enactment on December 2, 1969. Rather than forcing all institutions that might be subject to the act to close down from that date until they could prepare a prospectus, the agency authorized temporary exemptions pursuant to its statutory power to do so. In order to qualify for such an exemption, however, the institution would have to apply to the agency. Thus, contrary to plaintiffs' assertion that the agency postponed the effective date of the act, it conditioned the continuance of defendant's operation on its conforming with the initial steps in the registration process as set forth in the rules. The record reveals that on May 7, 1970 decedent Helen Gabrielsen wrote to Meadow Lakes, expressing her interest in joining the Meadow Lakes community. She enclosed an application and sent a nonrefundable processing fee of $100, together with a refundable deposit of $1,000. The executive 477 director by letter dated May 12, 1970, acknowledged receipt of decedent's application and her check for $1,100. On June 11, 1970 defendant sent a letter to the Director, Division of Housing and Urban Renewal, Department of Community Affairs, requesting advice with respect to the applicability of the act to its four homes. The Director responded in a letter dated June 12, 1970, stating that he believed that the act applied to the homes but that he would refer the question to the Attorney General for resolution. He further advised that defendant could apply for a letter of exemption under § 2.102 of the regulations promulgated to effectuate the purposes of the act, N.J.A.C. 5:17-2.3, or that defendant could apply for a temporary letter of exemption under § 1.102 of those same regulations. N.J.A.C. 5:17-1.3). In any case, the Director advised that an application for an exemption was "without prejudice to the position that the law does not apply." On June 18, 1970 defendant applied for a temporary letter of exemption pursuant to § 1.102 of the regulations and, in a letter bearing that same date, was advised that it was exempt from the provisions of the act until August 1, 1970. This temporary exemption was issued pursuant to Section 1.103 of the regulations, N.J.A.C. 5:17-1.4, which provides that A Temporary Letter of Exemption shall be issued by the Division within two business days of receipt of an application therefor, unless the Director shall determine that such developer intends to mislead or defraud purchasers. Such Temporary Letter of Exemption shall exempt such developer, and such subdivision or community, from the provisions of the Act and of this Chapter from June 1, 1970 until August 1, 1970, unless extended by the Division; however, such letter may be revoked at any time by the Director for the protection of purchasers upon 24 hours' notice to the developer. The letter also notified defendant that it was still responsible for compliance with the substantive provisions contained in §§ 1.102-1.105 of the regulations. N.J.A.C. 5:17-1.3-1.6. 478 On July 20, 1970 defendant was informed that the Attorney General was of the opinion that Meadow Lakes was not exempt from the Retirement Community Full Disclosure Act. On July 23, 1970 defendant requested that the time for filing the application for registration for Meadow Lakes be extended until September 30, 1970. This extension was granted, as authorized by § 1.103 of the regulations, N.J.A.C. 5:17-1.4, in a letter dated July 28, 1970. Mrs. Gabrielsen signed the Meadow Lakes residence agreement dated September 14, 1970, and tendered her check for the $31,900 remaining balance of the capital fee. She had not discussed the terms of the agreement with either her son, coexecutor-plaintiff, or her attorney prior to this time. On September 30, 1970 defendant submitted a Statement for record for Meadow Lakes in accord with the Retirement Community Full Disclosure Act. Defendant received a notice of filing pursuant to § 2.201 of the regulations, N.J.A.C. 5:17-2.5, which, under § 1.104, N.J.A.C. 5:17-1.5, automatically extended the temporary letter of exemption until a notice of registration or order of rejection was issued. Decedent was orally informed at that time that a public offering statement was then being prepared and that defendant would deliver a copy to her when it was complete. This was in an attempt to comply with § 1.105 of the regulations, N.J.A.C. 5:17-1.6, which then provided: (a) Any developer who has received a Temporary Letter of Exemption pursuant to this Subchapter shall deliver to each person who purchases a lot or unit in such subdivision or community on or after June 1, 1970, a notice informing him that a Public Offering Statement is being prepared in accordance with the Act and with this Chapter, and that a copy of such Public Offering Statement shall be provided to each such purchaser when it has been approved by the Division. (b) Such developer shall deliver a copy of the approved Public Offering Statement to each such purchaser as soon as possible after approval thereof by the division. (c) Such developer shall obtain and file a receipt for such Public Offering Statement as required by this Chapter. 479 (d) Compliance with the provisions of this Section shall be deemed to comply with the requirements of the Act regarding the delivery of a Public Offering Statement to purchasers. (e) Upon the registration of such subdivision or community by the Division, such developer shall be required to deliver a copy of the Public Offering Statement to all purchasers and prospective purchasers as required by Subchapter 4 (Public Offering Statement) of this Chapter. On October 19, 1970 an executed copy of the residence agreement was sent to Mrs. Gabrielsen. On December 8, 1970 Mrs. Gabrielsen submitted a completed "Instruction Sheet" which included, among other things, a list of relatives, her executor, directions for funeral arrangements and disposition of her belongings at Meadow Lakes, and a statement that her children would "take care of" any gifts or bequests, to be made to Meadow Lakes. On March 16, 1971 Meadow Lakes received a provisional registration pursuant to § 2.300 of the regulations, N.J.A.C. 5:17-2.12. On or about May 23, 1971 defendant distributed copies of the approved public offering statement to Mrs. Gabrielsen and 47 other residents who had entered subsequent to June 1, 1970. On June 21, 1971 Mrs. Gabrielsen acknowledged in writing the receipt of the public offering statement. A letter from Mrs. Gabrielsen to the administration of Meadow Lakes dated October 9, 1972 indicated that she was happy with her life there. This was confirmed by her son William C. Gabrielsen, plaintiff in this case and coexecutor of Mrs. Gabrielsen's estate. Mrs. Gabrielsen died on December 28, 1972. On October 5, 1973 the office of the Attorney General informed the Department of Community Affairs that, in its opinion Meadow Lakes was exempt from the Retirement Community Full Disclosure Act. On December 18, 1973 the Department of Community Affairs informed defendant of the Attorney General's opinion that the residence agreement between Meadow Lakes and its residents was not a lease, declared 480 that Meadow Lakes was not subject to the act, and granted it an exemption from the provisions of the act. The trial judge held that defendant did not comply with N.J.A.C. 5:17-1.6 in that it did not give decedent written notice before she took up residence in the community that it was preparing a public offering statement and that she would get a copy of it when it was completed. He further held that defendant was therefore not entitled to avail itself of the temporary letter of exemption with respect to the registration requirements of § 5 of the statute. We note that at the time here involved N.J.A.C. 5:17-1.6(a) provided that a developer who received a temporary letter of exemption "shall deliver to each person who purchases a lot or unit * * * a notice informing him that a public offering statement is being prepared * * ." Effective April 22, 1976, the regulation now provides that the developer deliver such notice "in writing." Decedent signed her residence agreement bearing the date of September 14, 1970 sometime between September 14 and October 19, 1970, during which period defendant gave oral notice to her and all other incoming residents promptly after their arrival at Meadow Lakes. It is our firm conviction that the oral notice given under the former regulation, in light of the factual context set forth above, was sufficient to satisfy both the language and spirit of N.J.A.C. 5:17-1.6. There was full compliance with the regulation's purpose, i.e. to give notice that the statutory procedure was being followed and that a prospectus was on the way. The notice does not advise the resident of any of his substantive rights. It is only when the prospectus is received that the resident is apprised of his rights and obligations, and at that time the resident has not only the right to void his contract within three full business days N.J.A.C. 5:17-4.3, but only then may he determine if there are any material misstatements or omissions. N.J.S.A. 45:22A-5(b). In view of our conclusion that defendant is exempt from the Retirement Community Full Disclosure Act and that 481 notwithstanding such exemption defendant did nevertheless comply with the provisions of said act, we need not reach nor do we pass upon the remaining contentions of the parties. The judgment of the Law Division is reversed and the matter is remanded for entry of judgment in favor of defendant and against the plaintiffs of no cause for action.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510430/	372 A.2d 1036 (1977) STATE of Maine v. Alfred J. W. BAZINET. Supreme Judicial Court of Maine. April 29, 1977. 1038 Thomas E. Delahanty, II, Dist. Atty., Richard L. Trafton, Legal Intern, Auburn, for plaintiff. Gary Goldberg, Jack H. Simmons, Berman, Berman & Simmons, P. A., Lewiston, for defendant. Before POMEROY, WERNICK, ARCHIBALD and GODFREY, JJ. GODFREY, Justice. After a trial by jury, appellant was convicted of the rape of a fifteen-year-old girl. Asserting that three substantial errors were committed during the trial, he seeks a reversal of the judgment. I The State attempted to establish that the crime occurred on a particular patch of muddy ground in the undergrowth abutting a school driveway in Lewiston. In addition to the victim's testimony, the State presented that of a physician who had examined her shortly after her attack. After testifying that she had found signs of intercourse with trauma, the doctor stated that she had observed three patches of mud on the girl's right leg. Over defense objections the court then admitted a photograph in evidence which showed the girl's right leg and the mud thereon. Because this photograph had been marked with three small arrows drawn in ink and pointing toward the mud patches observed by the doctor, the appellant argues that the court erred in admitting the photograph because it gave undue prominence to evidence prejudicial to his case. When questioned about the photograph, the doctor testified that she herself had taken the picture in the course of examining the victim. She stated that the photograph fairly depicted what she had seen and that its use at trial would be of aid in explaining her observations to the jury. She further testified that it had been a nurse, acting under her express instructions, who inserted the small arrows shortly after the picture was taken. The admission in evidence of photographs is best left to the sound discretion of the presiding justice. State v. Rollins, 295 A.2d 914 (Me.1972); State v. Duguay, 158 Me. 61, 178 A.2d 129 (1962). Although it is generally preferable that photographs to be introduced as evidence not be marked upon, we find no abuse of discretion in the trial court's ruling. The photograph was merely cumulative evidence corroborating the testimony of two prior witnesses. The presence of the arrows was explained by the person responsible for their insertion. The arrows were unobtrusive and did no more than point out what was apparent from the photo itself. In no way did they distort or obliterate relevant portions of the picture. Had the arrows not been inserted, it would have been proper for the doctor to point out the particular mud patches to the jury at trial. We find no prejudice to the defendant by the admission in evidence of the marked photograph. II At approximately 5:30 p. m. on November 19, 1975, the second day of the four-day trial, the unsequestered jury was sent home for the evening. There then ensued a long and, at times, heated bench conference concerning the admissibility of certain test results contained in an F.B.I. report. Although defense counsel had asked that the conference be held in chambers, it was held in the open courtroom where various representatives of the press were present. The following morning a local newspaper published an article about the trial that included a discussion of the bench conference of the evening before. The article accurately reported that there was evidence contained in an F.B.I. report which was inadmissible and would not be seen by the 1039 jury. The same morning, in chambers, defense counsel requested the trial judge to voir dire the jury for potential prejudice arising from the article. It is the presiding justice's refusal to conduct such a voir dire and his subsequent denial of a motion for mistrial which the appellant raises as his second point on appeal. In his brief the appellant properly observes that once a juror has been exposed to potentially prejudicial extraneous information, the trial court must make appropriate inquiry to insure that the fairness of the trial has not been compromised. Once the possibility of prejudice has been established, a presumption arises that the verdict was thereby affected. State v. Kelley, 357 A.2d 890 (Me.1976); see also Simmons v. State, 222 A.2d 366 (Me.1966). In such a case, failure to conduct a voir dire or, in the absence of appropriate inquiry, the subsequent failure to grant a mistrial would generally be ground for reversal. However, in the cases cited above, the presumption of prejudice and resulting duty of the trial court to voir dire the jury arose only after a finding had been made that potential prejudice existed. In the present case, the court expressly determined that the article in question did not contain information potentially prejudicial to the defense. To sustain the appeal in this case we would have to reach one of two conclusions: either that the presiding justice erred in finding no potential prejudice or that, as a matter of law, the mere publication of extraneous information during trial in itself creates a possibility of prejudice which in turn, under the cases cited above, raises a presumption of actual prejudice and the duty to voir dire or grant a mistrial. The latter alternative must be rejected. To mandate a voir dire even when the information hypothetically presumed to be prejudicial is in fact plainly innocuous would waste time and insult the intelligence of court, counsel and jurors. Indeed, the unnecessary polling of jurors might give undue emphasis to unimportant matters. See Gordon v. United States, 438 F.2d 858, 872 n. 39 (5th Cir. 1971), cert. denied, 404 U.S. 828, 92 S. Ct. 139, 30 L. Ed. 2d 56 (1971). The fair, efficient and intelligent administration of justice requires that a trial judge be empowered to make a threshold inquiry into whether potential prejudice exists. See Rioux v. Portland Water District, 132 Me. 307, 170 A. 63 (1934). If none is found the trial should proceed. Only when potential prejudice is determined to exist should the presumption of actual prejudice arise and the duty of the court to voir dire attach. The issue to be resolved in this appeal, therefore, is whether the trial justice erred in finding no potential prejudice. The newspaper article in question, which has been made part of the record on appeal, must be placed in proper perspective. First, the reported colloquy between counsel the night before had resulted in a stipulation providing for the admission in evidence of portions on the F.B.I. report. Thus, part of the evidence the existence of which might have been made known by the article was shortly thereafter presented to the jury. The article complained of was a full account of the trial proceedings the day before, containing forty-four paragraphs and occupying about thirty-five column inches. Only six paragraphs, or five column inches, dealt with the bench conference of the evening before. The rest of the article consisted of an unbiased account of events which had occurred in the jury's presence. Of the six paragraphs about the bench conference only one referred to evidence not later stipulated to and admitted. Although that one paragraph made mention of a laboratory test conducted on certain hair samples, it did not report the results of the test. The report stated that defense counsel considered the inadmissible laboratory test results to be exculpatory for his client. As the presiding justice observed, a reader of the article would infer, if anything, that the State had attempted to keep 1040 out evidence favorable to the defense. Such an inference would be favorable, not prejudicial, to the defendant. At the beginning of the trial the court had instructed the jury as follows: "There may be material about this [trial] in the press, and I am going to ask you not to read the newspapers, and if you should inadvertently read it, please do not pay any attention whatsoever to that . . .." In the absence of evidence to the contrary, it should be assumed that jurors have followed the instructions given them by the court. State v. Trask, 223 A.2d 823 (Me. 1966); State v. Wright, 128 Me. 404, 148 A. 141 (1929). In the context of what occurred at the trial after the reported bench conference, we cannot find that the court erred in deciding the article lacked potential prejudice. He did not abuse his discretion in declining to conduct a voir dire or in denying the motion for a mistrial. III Twice in the proceedings, once in the State's opening and again on direct examination of the prosecutrix, express reference was made to the victim's virginity before the rape. It is the court's refusal to grant his requested mistrial on the basis of these references that the appellant raises as his final ground of appeal. A distinction exists between assertions made by counsel in opening statement and the testimony of witnesses during trial. The latter is evidence; the former is not. Before trial in the instant case, the jury was given the standard instruction that anything said in an opening statement was not evidence and could not be considered in reaching a verdict. Ordinarily, such an instruction may be regarded as causing a jury to disregard an assertion of fact made in an opening statement whether or not the fact asserted is prejudicial. However, in order to have the jury disregard testimony later in the trial tending to prove the same fact, separate and timely objection should be made so that the testimony can be stricken and a curative instruction given. The appellant objected to the prosecutor's opening statement but did not later object when the victim testified on direct examination about her prior virginity. The appellant has lost any right to appeal on the ground that this allegedly prejudicial testimony of the victim was admitted in evidence. State v. Mann, 361 A.2d 897 (Me. 1976). Even if appellant had objected to the proffered testimony and thus preserved his right to assign its admission as error, we would not deem the evidence so prejudicial, in the context of this particular trial, as to warrant a mistrial below or reversal here. The presiding justice should deny a motion for mistrial except in the rare case when the trial cannot proceed with the expectation of a fair and impartial result and where no remedial measure short of a new trial will satisfy the interests of justice. State v. Kelley, 357 A.2d 890 (Me. 1976). A motion for mistrial is addressed to the sound discretion of the presiding justice whose ruling should not be disturbed in the absence of a clear abuse of discretion. State v. Hachey, 278 A.2d 397 (Me.1971). The prosecutrix in this case was just fifteen years of age. The trial judge perceived the potential problems that fact entailed when he denied the motion for a mistrial, observing that the chief source of possible prejudice to the defendant lay in the victim's tender years, not in the testimony that she had been a virgin. He determined that this problem could not be alleviated by the granting of defendant's motion for a mistrial and the likely subsequent impaneling of a new but equally human jury. Rather, the problem was one to be resolved by a careful charging of the existing jury. The record demonstrates that the court was consistently sensitive to the defendant's fear of prejudice. It twice cautioned the jury that an assertion made in an opening statement is not evidence and, even 1041 though defendant did not object to the victim's testimony about her prior virginity, the presiding justice instructed the jury that the victim's virginity was not at issue and should not be considered by them in reaching a verdict. There appears to be no reason for us to impute to those jurors a disregard of their instructions. In view of the circumstances existing at the trial, we cannot say that the presiding justice's denial of the motion for a mistrial was an abuse of discretion or that the manner in which the trial proceeded was unfair. The entry is: Appeal denied. All Justices concurring. DUFRESNE, C. J., did not sit. DELAHANTY, J., did not sit.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510425/	588 S.W.2d 94 (1979) STATE of Missouri, Respondent, v. Lenwood COLE, Appellant. No. 30004. Missouri Court of Appeals, Western District. September 4, 1979. Rehearing Denied October 1, 1979. 95 Allen I. Harris, St. Louis, for appellant. John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Hope E. Thurrott, Spec. Asst. Atty. Gen., Kansas City, for respondent. 96 Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge. ANDREW JACKSON HIGGINS, Special Judge. Appeal from judgment on convictions by a jury of murder, second degree, and assault with intent to kill with malice aforethought. In question: the sufficiency of evidence to establish the requisite mental state; admission of evidence of the victims' family status, and a photograph of the crime scene; instruction on voluntary intoxication; failure to give tendered instructions on diminished responsibility, and failure to declare mistrial on the State's argument. Affirmed. This case arose from the shooting of two police officers in defendant's home at 7434 Canton Avenue, University City, Missouri,[1] Sunday, February 22, 1976. He was indicted on charges of capital murder, § 559.005, Laws of Missouri 1975, and felonious assault with malice aforethought, § 559.180 RSMo. He pleaded not guilty and not guilty by reason of mental disease or defect excluding responsibility. One week prior to the shooting, defendant was treated for pneumonia at St. Louis County Hospital. He was given a shot of ampicillin and prescriptions for oral ampicillin and codeine to be taken for the ensuing week. He missed some work during the week as a result of his illness, but had returned to work on Saturday before the shooting. He worked the night shift, returned home Sunday morning and went to bed. He arose about noon Sunday. At 2:00 p. m., he took a codeine tablet, left home and drove to a nearby bowling alley. Enroute, he drank one-half pint of bourbon whiskey. He went later to a lounge where he drank two beers and a mixed drink. He returned home between 7:00 and 7:30 p. m., and took one tablet each of ampicillin and codeine. He went to his room and called his oldest son, age eight. He told his son he was to be the man of the house, then called his other two sons and told them they were to mind their older brother. Following this conversation with his sons, defendant asked his wife if she wanted her freedom. During this conversation, the second son brought a vase of flowers to defendant which he flung across the room, breaking the vase. Without coat or shoes, defendant went to the front door, told his wife life did not matter any more, that she would be better off without him, and that insurance would take care of her and the children. He left in his car; and, at this time, about 8:00 p.m., defendant's wife made the first of several calls to the University City Police Department. She informed the dispatcher her husband was "acting crazy" and had just left the house. She asked for help. A few minutes later, she called the police again and informed them defendant was home. Defendant had returned home and gone to bed. Two or three minutes later, Officer Didden arrived; Officer Graham arrived shortly thereafter. Defendant's wife admitted them to the living room area of the house. Defendant heard the voices of the two officers and the squelch of their radios. He came from his bedroom to the living room and asked the officers what they were doing there. One of the officers told him they had been called by his wife for a family disturbance. Defendant said there was no disturbance and told the officers to leave. The officers insisted they would stay until the disturbance was settled. Defendant told the officers to leave several more times and took their names and badge numbers with threats to call their captain to have them removed. Defendant left the room, returned with a shotgun, and said, "I told both of you I want you out of here and I'm not telling you anymore." He then fired three blasts. Two of them hit and killed Officer Graham; the third wounded Officer Didden in the jaw and neck. Defendant's 97 wife took the gun from defendant, after which he called the University City Police and reported, "I just killed them. I told them to get out of my house, they wouldn't get out of my house. I just killed two of them here. Didden and Graham." One or two minutes later defendant was arrested, handcuffed and placed in a police car. He was crying, and stated a couple of times, "I shot them". Upon arrival at the police station, defendant was given a breathalyzer test and a reading of .20 was recorded. A videotape confession was also recorded. That defendant shot the officers was conceded. Three doctors addressed the issue of defendant's mental state at the time of the shooting. Dr. Nathan Mark Simon, believed the combination of illness, alcohol and drugs produced a "toxic psychosis" in which defendant was not responsible for what he was doing, where he could not distinguish between right and wrong, and where his actions were impulsive. Dr. Paul A. Dewald could come to no conclusions on defendant's state of mind. His hypothesis was that defendant's generally weakened psychological and physical condition, codeine and alcohol ingestion, and other things "may very well have caused a toxic state, a delirium * * in which an individual is subject to, at times, uncontrollable or unanticipated behavior pattern." Dr. Joseph S. Shuman believed that defendant, at the time of the shooting, was a normal man who, perhaps because of alcohol he had consumed but probably not because of the codeine, had used poor judgment. Lay witnesses on the issue of defendant's mental state at the time of the shootings stated he did not appear drunk and described him as reasonably alert and sober. Appellant contends the evidence was insufficient to sustain conviction in that the psychiatric testimony on the issue of mental state and intent was such that the court should have directed verdicts for defendant on the charges against him. He argues first, that such testimony warranted directed verdicts on his defense of not guilty because of mental disease or defect, excluding responsibility under Chapter 552 RSMo; and second, that he was entitled to have reduced charges of manslaughter and assault without malice submitted to the jury on his theory of diminished responsibility negating specific elements and hence reducing the charge. With respect to the defense of mental disease or defect, § 552.030.7 RSMo provides: "All persons are presumed to be free of mental disease or defect * * * The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. * * * Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take the issue to the jury."[2] Defendant had the benefit of testimony from Dr. Simon and Dr. Dewald which, under the statute, entitled him to present the issue of mental disease or defect to the jury. Also present in this case was the testimony of Dr. Shuman that defendant was free of mental disease or defect excluding responsibility. Thus, he was not entitled to a directed verdict because the presumption of freedom from mental disease or defect does not disappear, and it alone is sufficient to take the issue to the jury. State v. Greenhaw, supra. The issue was properly submitted by Instruction 5 in form MAI-CR 3.70. Appellant makes the same argument presented in State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974), where the concept of "diminished responsibility" was discussed, 98 and § 552.030.3(1)[3] RSMo was read in conjunction with Model Penal Code (ALI) § 4.02(1). It was determined that if defendant introduced the evidence envisioned by § 552.030.3(1), the jury must be instructed on offenses which are committed in a mental state less than that required for conviction on charged offenses. Defendant Cole received both considerations. Defendant was permitted to adduce evidence on mental disease or defect, and the jury was instructed on the lesser offenses of manslaughter, Instruction 8 (MAI-CR 2.30/6.08), and assault without malice aforethought, Instruction 10 (MAI-CR 2.30/6.24), all as required by State v. Anderson, supra. The State elicited testimony from Officer Didden that he was a married man with two children, and that Officer Graham had been a married man with children. Appellant contends the court erred in overruling his objections to such questions on the ground of irrelevance. He asserts that the family status of the officers had no relevancy, and the questions to that effect were asked "to influence the jury." Evidence of the family status of the crime victims was not relevant to the issues, State v. Johnson, 349 Mo. 910, 163 S.W.2d 780 (1942); however, prejudice must flow from such error for reversal to ensue, State v. Smith, 534 S.W.2d 604 (Mo.App. 1976). As previously demonstrated, the only issue of consequence was the mental state of defendant. It is not likely that the evidence in question affected the jury in resolution of that issue, and appellant makes no demonstration of prejudice beyond his assertion of its existence. To the contrary, defendant, himself, utilized the victims' family status in closing arguments. Appellant charges the court erred in admission in evidence of Exhibit 21 in that it was "a photograph showing a lot of blood, did not add any relevant evidence * * was at most cumulative and was highly prejudicial." It is within the discretion of the trial court to determine whether potentially prejudicial or inflammatory evidence should be admitted, and relevance is the principal criterion. State v. Johnson, 539 S.W.2d 493 (Mo.App.1976), cert. den. 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779. Relevant evidence is not inadmissible because it is prejudicial. Nor is it a valid objection that a witness has described matters depicted in the photographs if it is otherwise relevant. State v. Jackson, 499 S.W.2d 467 (Mo.1973). Photographs of a crime scene are admissible if they depict the condition and circumstances surrounding the crime and aid the jury on a material issue. State v. Rogers, 523 S.W.2d 344 (Mo.App.1975). Exhibit 21 depicts the front door area of the Cole home, shows some blood, a nightstick, broken glass, a cigarette and a pen. It offers corroboration of evidence to show absence of provocation. See State v. Aubuchon, 394 S.W.2d 327 (Mo.1965); and compare State v. Floyd, 360 S.W.2d 630 (Mo.1962), where admission of photograph of body in decomposed state as to preclude identification could serve no purpose except to inflame the jury. The court gave Instruction 13 (not in MAI-CR) as follows: "The court instructs the jury that if you find and believe from the evidence that the defendant was intoxicated by drugs or alcohol at the time, such intoxication is in law no excuse for or defense to such offense as you find to have been committed. Voluntary intoxication is never a defense to a criminal charge. The fact of such intoxication, if you find it to be a fact, is only to be considered by the jury in connection with all other facts, in determining the guilt or innocence of the defendant, and the degree of guilt, if you find he is guilty." Appellant, although conceding "that such instructions have been approved in the past", contends the court erred "for the 99 reason that said instruction is a comment on the evidence and further misstated the evidence in this case." An instruction that voluntary intoxication is not a defense is properly given where, as in this case, there is evidence that the accused had been drinking and was intoxicated at the time of commission of his crime. See State v. Street, 498 S.W.2d 523 (Mo.1973), and note approval of the form and language of Instruction 13. The instruction is a correct statement of the law as it existed at the time of this case, with respect to the effect of voluntary intoxication on defendant's culpability for his acts.[4] It did not require the jury to find defendant to have been voluntarily intoxicated; it only directed what the jury must consider if voluntary intoxication was found. Defendant offered and the court refused to give instructions as follows: Instruction No. A. "The court instructs the jury that if you find that at the time of the offense charged against the defendant he had a mental disease or defect sufficient to deprive him of the ability to act unlawfully, wilfully, knowingly, deliberately and with premeditation, then you may not find him guilty of first degree murder." Instruction No. B. "If you find and believe that at the time of the offense charged against the defendant, he had a mental disease or defect sufficient to deprive him of the ability to act wilfully, feloniously, premediatedly or with malice, then you may not find him guilty of either first or second degree murder." Appellant argues that with recognition in Missouri of diminished responsibility, State v. Anderson, supra, he was entitled to his offered instructions in submission of his "special negative defense" based on diminished responsibility. State v. Anderson, supra, determined that if a jury considers and rejects acquittal of the accused on the defense of mental disease or defect excluding responsibility, it may yet consider acquitting him of a greater crime and yet convict him for a lesser included offense which requires a lesser mental state. Under that thesis, Richard Paul Anderson's conviction of murder second degree was reversed, and his cause remanded for new trial, where, in the event there was evidence of diminished responsibility, the court would be required to instruct on lesser included offenses. The error in State v. Anderson, supra, is absent from this case. Defendant's evidence on diminished responsibility was received; the jury was fully instructed by Instructions 3 and 10 (MAI-CR 2.30/6.08 and MAI-CR 22.30/6.24) with respect to its option to convict of the lesser included offenses. Defendant's theory that his proposed Instructions A and B [5] were necessary to inform the jury of the nature of his diminished responsibility defense is erroneous. The evidence introduced at trial and the instructions on lesser included offenses, as required by Anderson, served the function. The State argued in rebuttal: "First of all, this talk about Fulton, I mean, that whole argument just doesn't make any sense. There's nothing wrong with this man as he sits here today. You know that, the psychiatrists told you that. If he was sent to Fulton, how long do you think he'd." Defendant objected and moved for mistrial on grounds the argument "disparages the mental defense". He contends, with citation of State v. Johnson, 267 S.W.2d 642 (Mo.1954); State v. Nickens, 403 S.W.2d 582 (Mo.1966); and State v. Camlen, 515 S.W.2d 574 (Mo.1974), that the quoted argument disparaged the defense of mental disease or defect, and that it was a call for imprisonment 100 in the penitentiary even if the jury believed defendant was suffering from mental disease or defect at the time of the shooting. Appellant's citations proscribe arguments that a defendant should be convicted irrespective of evidence tending to show a defense of insanity because acquittal on that ground would result in his presence on the streets committing new crimes. The argument in this case does not fall within the proscription of the cited cases. Its interrupted state does not convey the notion that defendant should be imprisoned regardless of the quality of his defense of insanity. Indeed, it may not be said with any certainty what counsel had in mind when interrupted. In another instance the State argued: "Think for a minute what a verdict of Manslaughter would mean in a case like that to people. They would say, `Look at this. There isn't anything worse than that. This man is getting off with Manslaughter.' It isn't easy to deter that kind of crime." Defendant objected "to what a verdict of manslaughter could mean to people". He contends the State was not arguing for law and order, but was asking the jury to disregard whatever the evidence showed on degree of crime, and to convict to make an example of defendant. This argument falls within familiar rules that the State may argue: The necessity for law enforcement, and ask for severe penalty as a deterrent to others, State v. Raspberry, 452 S.W.2d 169 (Mo.1970); the prevalence of crime in the community, personal safety of its inhabitants and the jury's duty to uphold the law, State v. McKinney, 475 S.W.2d 51 (Mo.1971); that the jury verdict should serve as a warning, State v. Burnett, 429 S.W.2d 239 (Mo.1968); that failure to convict would open the floodgate for similar conduct in the future, State v. Rodriguez, 484 S.W.2d 203 (Mo.1972); that correction of the defendant is part of the jury's duty in prevention of crime. State v. Wright, 515 S.W.2d 421 (Mo.1974). See also State v. Jackson, 477 S.W.2d 47 (Mo.1972), where the State's comment that people say courts are "too easy on these guys" was within the scope of permissible argument covering prevalence of crime and the necessity for strict law enforcement. Judgment affirmed. All concur. NOTES [1] Venue was changed on defendant's application on ground he could not have a fair trial in St. Louis County. [2] The statute has been construed literally. See, e.g. State v. Williams, 521 S.W.2d 169 (Mo. App.1975); State v. Greenhaw, 553 S.W.2d 318 (Mo.App.1977); State v. Vansandts, 540 S.W.2d 192 (Mo.App.1976); State v. Holmes, 439 S.W.2d 518 (Mo.1969). [3] "Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible: (1) To prove that the defendant did or did not have the state of mind which is an element of the offense * * *." [4] No opinion is expressed as to the accuracy of the instruction after the January 1, 1979 effective date of § 562.076. Note the suggested instruction MAI-CR 3.30.1. [5] Cf. MAI-CR 3.74, effective January 1, 1979, suggested for submission under State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510439/	172 Conn. 65 (1976) STATE OF CONNECTICUT v. CHARLES CRAWFORD Supreme Court of Connecticut. Argued October 14, 1976. Decision released December 7, 1976. HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and BARBER, Js. Robert G. Oliver, special public defender, with whom, on the brief, was Jerrold H. Barnett, public defender, for the appellant (defendant). Ernest J. Diette, Jr., assistant state's attorney, with whom, on the brief, were Arnold Markle, state's attorney, and Richard P. Sperandeo, chief assistant state's attorney, for the appellee (state). BARBER, J. Following a jury trial, the defendant was found guilty of murder. He was sentenced to be imprisoned, and this appeal is taken from the judgment of the court. On appeal the defendant claimed that the court erred in its charge to the jury and that certain statutes violated due process. In his brief, however, he has pursued only the issue of 66 the claimed erroneous jury charge. Any claim of error which is not briefed is considered abandoned. State v. Ruiz, 171 Conn. 264, 265, 368 A.2d 222. The facts of the homicide were not in substantial dispute. At approximately 11:45 p.m. on December 28, 1973, James Frosolone and his friend, Barbara Musco, left the Starlite Lounge in Hamden. The defendant, Charles Crawford, approached Frosolone from behind and shot him seven times with a .22 caliber revolver, twice in the head and five times in the back. Several of the shots were fired into the victim after he had fallen to the sidewalk. Immediately thereafter, the defendant, in the company of a friend, Robert Pascale, ran into the woods across the street and eventually fled to the state of Florida where he was subsequently arrested. At the trial, the defendant did not contest the fact that he had killed Frosolone but based his defense on a claim that his voluntary intoxication from alcohol and drug intake prior to the shooting resulted in his incapacity to form the requisite intent necessary for a conviction of murder. The defendant took the stand in his own behalf and testified that he had consumed a great deal of alcohol and a tablet of LSD (lysergic acid diethylamide) which were producing feelings of paranoia by the time he reached the Starlite Lounge. He then testified that he continued consuming alcoholic drinks during the course of the evening and that he felt that he was increasingly under the influence of the LSD drug. The defendant claimed that he could not remember obtaining or possessing a gun that night nor could he recall shooting Frosolone, although he did remember events leading'up to and following the shooting. No medical evidence was presented by the defense. 67 The state offered evidence from which the jury could reasonably have concluded the following: The defendant acted, moved, and spoke in an apparently natural, normal manner during the course of the evening at the Starlite Lounge. He danced and conversed with various people to whom he did not appear intoxicated. He and his friend Pascale were involved in an altercation with another young man named Joey. Joey and Pascale were asked to leave the lounge and the defendant left with them. Later, the defendant and Pascale were part of a group arguing in the parking lot which was dispersed by Starlite Lounge's security guard. The victim, Frosolone, was head of a New Haven gang calling itself W. Sava. Although Frosolone was involved in no arguments on the night of the shooting, his gang had previously fought with a group from Hamden. Robert Foley, with whose family the defendant was living, testified as a witness for the state that on the night of the shooting at about 10:45 or 11 p.m., the defendant had returned to the Foley home, told Foley that somebody had threatened him and that he needed his gun, which he took from behind the stereo in Foley's room. The defendant told Foley that he and Pascale had some trouble with some youths from Grand Avenue in New Haven. He then left the Foley home and did not return until about 12:30 a.m. when he told Foley that he, Crawford, had shot "somebody from Grand Avenue." Foley saw the defendant change his clothes and then heard the defendant tell Pascale on the telephone that he wanted to leave Connecticut. The defendant eventually ended up in Florida where he was apprehended. The only error claimed and pursued by the defendant on appeal is the alleged inadequacy of 68 the trial court's charge to the jury relating to the burden of proof on the effect of voluntary intoxication. The defendant did not request a charge nor take any exception to any portion of the charge as delivered by the trial court. On appeal, appellate counsel has raised this issue for the first time. This court will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided adversely to the appellant's claim. Practice Book § 652; see State v. Simms, 170 Conn. 206, 208, 365 A2d 821; Gelinas v. Nelson, 165 Conn. 33, 40, 327 A.2d 565. In two exceptional circumstances, however, this court will consider newly raised claims. "The first is ... where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal.... The second `exceptional circumstance' may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, 165 Conn. 61, 70, 327 A.2d 576. The defendant's counsel claims that the trial judge's inadequate charge had the effect of shifting to the defendant the burden of persuading the jury that he was so intoxicated as to be incapable of forming the requisite intent for murder, thereby effectively requiring him to prove an element of intent. The United States Supreme Court, in a decision rendered after the defendant's trial, held that such a burden of proof imposed by the state on a defendant did not comport with the due process requirement as defined in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368, that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney 69 v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508. Although there is some doubt that the "exceptional circumstances" doctrine recognized in State v. Evans, supra, is applicable to the defendant's claim of error in this case, we consider the single issue which is dispositive of this appeal. The portions of the charge to the jury pertaining to the issue of intoxication and its relationship to the specific intent required for murder amounted to an unexceptionable statement of the relevant Connecticut law. It is a well-established rule that the charge to the jury must be read as a whole and that individual instructions are not to be judged in "artificial isolation" from the overall charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536. Under our penal code, murder is defined as causing the death of another person with intent to cause the death of that person or a third person. General Statutes § 53a-54a (a). It was undisputed that the defendant caused Frosolone's death. Intoxication is not a defense to a criminal charge but evidence of intoxication may be offered by the defendant whenever relevant to negate an element of the crime charged. General Statutes § 53a-7. As used in this section, "intoxication" means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body. Ibid. In this case, the defendant offered testimony regarding his intoxication to negate the essential element of specific intent in his prosecution for murder. Throughout the trial, however, the burden remained with the state to persuade the jury beyond a reasonable doubt that the defendant, in spite of any intoxication, had the 70 capacity to, and did, form the intent to cause Frosolone's death when he shot him. This was in accordance with the duty of the state to prove beyond a reasonable doubt all the elements of a charged crime, including intent. See In re Winship, supra; State v. Brown, 163 Conn. 52, 64, 301 A.2d 547; State v. Benson, 153 Conn. 209, 215, 214 A.2d 903. The instructions to the jury, properly read as a whole, correctly and adequately informed the jury of all the relevant law. See State v. Dortch, 139 Conn. 317, 93 A.2d 490. In particular, the court specifically charged the jury that the defendant had no burden of proof at all and that the state had the burden of proving that the defendant was capable of forming the required intent. Thus there was neither an erroneous charge nor even a reasonable possibility that the jury were misled. See State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077. The United States Supreme Court decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, is inapplicable to the case before us. In Mullaney, the court considered a Maine law affirmatively shifting the burden of proof to the defendant by requiring him to prove the critical fact in dispute. Under the Maine law, a defendant was specifically required to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Mullaney v. Wilbur, supra, 703. As we have already stated, neither Connecticut law nor the charge to the jury in the present case placed the burden on the defendant with respect to proving his capacity, or lack thereof, for having an intent to cause Frosolone's death when he shot him. Intoxication is neither a defense nor an affirmative defense to a murder charge under Connecticut law. 71 The jury charge and the statutory treatment of intoxication as it relates to specific intent do not fall within the Mullaney prohibition. The defendant's claim that the effect of the charge to the jury was to make the issue of the defendant's intoxication analogous to an affirmative defense and to shift the burden of proof on the issue of intent to the defendant is without merit. There is no error. In this opinion the other judges concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510462/	588 S.W.2d 65 (1979) STATE of Missouri, Respondent, v. Edward BATTLE, Appellant. No. 39473. Missouri Court of Appeals, Eastern District, Division Four. August 21, 1979. Motion for Rehearing and/or Transfer Denied September 17, 1979. Application to Transfer Denied November 14, 1979. 67 William J. Shaw, Public Defender, Patrick M. Sanders, Asst. Public Defender, S. Gerald Miller, Clayton, for appellant. John D. Ashcroft, Atty. Gen., Paul Robert Otto, Bruce E. Anderson, Asst. Attys. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for respondent. Motion for Rehearing and/or Transfer to Supreme Court Denied September 17, 1979. DOWD, Presiding Judge. Edward Battle was convicted by a jury in St. Louis County of second degree murder and first degree robbery and sentenced to life imprisonment on each count. The sentences are to be served consecutively. Battle appeals. On the snowy morning of January 7, 1976, Officer Fred Marquard of the University City Police Department observed the appellant walking behind a group of apartment buildings carrying a television set. When Marquard signaled that he wished to speak to the appellant, the latter "set down" the television and purported to assist a man who was working on his car's engine. When questioned by the Officer as to his presence in the neighborhood and his carrying the television, the appellant replied with inconsistent answers. First, appellant contended that he owned the set and was taking it to be fixed. Shortly, thereafter, appellant asserted that he was given the set by his employer, a Doctor Zuckerman. When another officer arrived, Marquard traced appellant's footprints in the freshly fallen show to a different building than the one appellant claimed to have exited. The officer failed to find any evidence of forcible entry into the apartments. Marquard then arrested appellant on suspicion of stealing from a dwelling. Appellant was given his Miranda warnings and a pat down search. The pat down search revealed ten silver dollars and various items of jewelry in the appellant's possession. The police observed blood stains on appellant's clothing. Once at the police station appellant was also found to be in possession of a bank interest check payable to a Ruth Goldberg. Appellant explained that Mrs. Goldberg had given him the check. When the police could not reach Mrs. Goldberg to verify appellant's story, they contacted her children in hopes of gaining access to her apartment. Mrs. Goldberg was 73 years old and lived alone. Having been admitted to the apartment, the police found Mrs. Goldberg dead. She had been strangled with a wire coat hanger and stabbed through the throat with a knife. Appellant was indicted for the capital murder and first degree robbery of Rose Goldberg. In this appeal, Battle contends the trial court erred in five respects. In his first assignment of error, appellant contends that statements and evidence procured from him following his arrest should have been suppressed because his arrest was unlawful and not predicated on probable cause. Secondly, appellant contends that the trial court should have suppressed statements which he made to police after indicating that he wished the questioning be discontinued. Appellant's third contention 68 is that the court erred in refusing to grant him a competency hearing after his counsel had contested the psychiatric reports' findings. The fourth issue raised by the appellant is that the trial court should have granted appellant's motion for a mistrial after the State had made allegedly prejudicial comments in its closing argument. Finally, the appellant contends that the court lacked jurisdiction since the appellant had pleaded not guilty by reasons of mental disease or defect and had never withdrawn or abandoned that plea. The appellant first questions the legality of his warrantless arrest, claiming that no probable cause existed for the police to believe that a crime had been committed or that the appellant had committed it. Officer Marquard was not required to have had probable cause for arrest when he asked Battle to step over to the police car during the initial detention. It is established that police can make an investigatory stop of a person on less grounds than would be required for probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Here, Officer Marquard observed the appellant walking behind an apartment building in the middle of a snowstorm carrying a television set. When the officer motioned for Battle to approach the police car, Battle set the television by the curb and began to act as if he were assisting a man who was working under the hood of a car. While this behavior would not satisfy probable cause requirements for arrest, it is sufficiently suspicious to warrant a brief investigatory stop under the Terry rationale. The grounds necessary for probable cause for arrest, however, need not have been established until Marquard actually arrested Battle. In order to legally arrest Battle, Marquard must have had reasonable grounds to believe that a felony had been committed and that Battle had committed it. State v. Caffey, 436 S.W.2d 1 (Mo.1969). Although Marquard needed more than a mere suspicion that Battle had stolen from a dwelling, State v. Hicks, 515 S.W.2d 518 (Mo.1974) the practicalities of everyday life must be considered. State v. Dodson, 491 S.W.2d 334 (Mo. banc 1973). The existence of probable cause should be determined case by case using a reasonable and prudent man standard. State v. Dodson, supra. Here the information Marquard obtain during the investigatory stop provided him with the necessary grounds to reasonably believe that Battle had stolen from a dwelling. After Battle complied with Marquard's request to step over to the police car, Marquard inquired as to Battle's presence in the area and his possession of the television. Battle answered that he lived at 5271 Washington Avenue in St. Louis. This is approximately sixteen blocks from where he was stopped. He said that he brought the television from his home and was taking it to Wellston to be repaired. Marquard pointed out that they were a considerable distance out of the way from Washington Avenue to Wellston. Battle then changed his story and said that he had been doing some work at 740 and 746 Eastgate for a Dr. Zuckerman. He said that Dr. Zuckerman had given the television to him to have it repaired. At that time another patrolman arrived on the scene and Officer Marquard asked him to run a pedigree check on the appellant. Marquard then traced Battle's footprints through the freshly fallen six-inch snow. Since Battle's were the only footprints visible, Marquard was able to follow them to the rear of an apartment building at 804 Eastgate. This address was approximately one block closer than the building Battle claimed to have exited. The officers then arrested Battle for stealing from a dwelling. It was reasonable for Officer Marquard to become suspicious at the sight of a man carrying a television through the falling snow at the rear of an apartment building. As in Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. at 1881, "it would have been poor police work" for Marquard not to have briefly stopped appellant. The additional facts discovered during the investigatory stop provided the necessary probable cause 69 for a warrantless arrest for stealing from a dwelling. Since probable cause existed, the arrest was legal and there could be no taint on the information obtained as a result. Point one is ruled against the appellant. The appellant next argues that the court erred in overruling his motion to suppress statements he made after he had signed a written Miranda form indicating that he wished the questioning be discontinued. The admissibility of statements obtained after a suspect has expressed a desire "to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored". Michigan v. Mosely, 423 U.S. 96, 103, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). If the suspect makes a statement after questioning has been cut off, the burden is on the State to show by a preponderance of the evidence that he has made a knowing waiver of the Miranda safeguards in order for that statement to be admissible. State v. Olds, 569 S.W.2d 745 (Mo. banc 1978). A suspect can effectively waive his right to remain silent as to any statement which he volunteers. State v. Olds, supra. In the Olds case, a robbery suspect was being driven to jail while two police officers in the car carried on a conversation about a 200 pound Great Dane at the home of the robbery victim. When one Officer commented that it was the friendliest dog he had ever seen, the suspect agreed with him. The court found that the suspect had waived his right to remain silent since the statement was voluntarily made after his being informed of his rights and was not in response to any interrogation. In the present case, after Battle indicated his desire to cut off questioning, the police took him to a cell without further communication. About one and one-half hours later, Battle, a black man, saw a black detective walk by and asked to see him. The detective asked Battle what he wanted and Battle answered that he wanted to tell him what had happened. The detective warned Battle that he was a police officer and would testify to anything Battle told him. He also reminded Battle of the Miranda form he had signed. Despite these warnings, Battle made the incriminating statements[1] which were the subject of the motion to suppress. As appellant volunteered the statements after having been given his Miranda warnings, and having been reminded of his previous wish to remain silent, he waived his right to remain silent as to the statements made. The motion to suppress was properly overruled. Point two is ruled against the appellant. The appellant's third point is that the trial court erred in refusing to grant a hearing to determine the appellant's competency to stand trial. It appears from the record, however, that a hearing was held. At one point in the record, the court, referring to evidence regarding appellant's competency, stated, "We went over this in the hearing on Friday with the doctor and the two licensed practical nurses, didn't we?" Later the court again referred to the competency hearing, stating: "For the record I will make a finding of law based on the testimony we had last Friday from the medical doctor and the county jail social worker, two licensed practical nurses, and psychiatric reports from Fulton and from Missouri State Hospital on Arsenal Street, and other evidence before the Court, that the Court finds the matter of law is that the defendant is competent to stand trial, to assist in his own defense, if he chooses to, that is competent to stand trial." Thus it is clear that a competency hearing was held and that the court, based on evidence adduced at the hearing, found the appellant competent to stand trial. The record does not include a transcript of what transpired at the hearing. The transcript should include everything needed to decide the issues which the appellant presents. Ward v. State, 451 S.W.2d 79 (Mo.1970). Since the appellant has the 70 burden of providing a complete transcript, Jackson v. State, 514 S.W.2d 532 (Mo.1974), this court cannot determine that the hearing, which was apparently held, fell short of the requirements of Section 552.020(6), VAMS without a record of the hearing being included in the transcript. The fourth issue the appellant raises is that the trial court erred in denying appellant's motion for a mistrial after the prosecutor made certain allegedly prejudicial comments during closing arguments. The flaw in this argument is that none of the comments allegedly made by the prosecutor appear in the transcript. It has long been held that the trial transcript is binding on the reviewing court. Peterson v. Kansas City Public Service Co., 259 S.W.2d 789 (Mo.1953). As a result, the comments complained of by appellant not having been substantiated by the record cannot be considered on appeal. It is true that arguments which antagonize the jurors toward the defendant by suggesting that acquittal may risk their or their families' safety, affect substantial constitutional rights and as such are erroneous. State v. Ellinger, 549 S.W.2d 136 (Mo. App.1977). However, a search of the record reveals no such inflammatory remarks. Essentially the argument of the prosecutor was in reference to the necessity of law enforcement as a deterrent to crime and also that juries have a responsibility to suppress crime. Such an argument is proper. State v. Brauch, 529 S.W.2d 926, 931 (Mo.App.1975); State v. Schumacher, 556 S.W.2d 199, 200 (Mo.App.1977). Accordingly, appellant's point is without merit. The appellant finally contends that the trial court was without jurisdiction to hear this case because defendant never entered a not guilty plea and so was never properly arraigned. Appellant argues that since he pleaded not guilty by reason of mental disease or defect and never withdrew or abandoned that plea, the court was not authorized to adjudicate the guilt of defendant. This contention lacks merit. The case on which appellant relies, State v. Grantham, 519 S.W.2d 19 (Mo. banc 1975) involved a different factual situation than exists here. In Grantham, the court held that the State cannot accept a plea of not guilty by reason of mental disease or defect when the defendant has also pleaded not guilty, and has not first withdrawn or abandoned the not guilty plea. This is in accordance with § 552.030 VAMS, which allows the State to accept a defense of mental disease or defect only if such a plea is the defendant's only defense and he files a written notice that he has no other defense. Here the defendant was arraigned and entered a plea of not guilty by reason of mental disease or defect. However, this plea was never accepted by the State. Defendant Battle was then tried without explicitly entering a not guilty plea. Accordingly, § 546.020 VAMS is controlling. It holds that if a defendant fails to plead not guilty, his conviction will not be reversed if the trial was held as if he had in fact pleaded not guilty. Here the trial court did proceed as if appellant had pleaded not guilty. Thus, the judgment will not be disturbed. Judgment affirmed. CRIST and SATZ, JJ., concur. NOTES [1] Battle told the officer that he was present in the apartment with a Robert Jones who beat the victim and stabbed her with a knife and that Battle then took the television set, money and jewelry from the apartment but that "he hadn't killed the woman."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510434/	247 Pa. Super. 534 (1977) 372 A.2d 1218 William J. DIAMON and Clara A. Diamon, his wife, Appellants, v. PENN MUTUAL FIRE INSURANCE COMPANY. Superior Court of Pennsylvania. Argued November 16, 1976. Decided April 19, 1977. 536 Henry J. Rea, Jr., Pittsburgh, for appellants. R. Charles Thomas, Meadville, with him Bozic, Thomas & Johnson, Meadville, for appellee. Before JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. SPAETH, Judge: This is an appeal from an order granting a motion for summary judgment. The motion was filed by an insurance company, resisting a claim by its insured. It is established that "[t]he utmost fair dealing should characterize the transactions between an insurance company and the insured." Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 559, 151 A. 285, 286 (1930). It is also established that a motion for summary judgment should be granted only in the clearest of cases, which is to say, only when there is no material issue of fact and no doubt about what the result should be. See Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (filed April 22, 1976) (collecting cases). Here, whether there was the utmost fair dealing is by no means clear. The order of the lower court should therefore be reversed and the case remanded for further proceedings. 537 I On December 4, 1967,[1] appellants purchased from appellee a fire insurance policy that covered appellants' home, appurtenant private structures, and unscheduled personal property, and provided reimbursement of such additional living expenses as might result from a fire. The policy contained the following provision: No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss. This is a standard provision required by statute. Act of May 17, 1921, P.L. 682, 40 P.S. § 636. On April 9, 1968, while appellants were in Florida, their home, garage, and furniture were destroyed by a fire. On July 22, 1968, appellants filed a sworn proof of loss with appellee, claiming $20,000 for the loss of their home, $250 for the loss of their garage, $8,000 for the loss of their furniture, and $4,000 for additional living expenses. On September 17, 1968,[2] after an investigation by one of its claims adjusters, appellee rejected appellants' proof of loss and refused to pay their claim. Also on September 17, 1968, the District Attorney of Crawford County filed a criminal complaint against appellant William Diamon, charging him with filing a false proof of loss; it was alleged that appellant had removed the furniture from his home before the fire. On January 28, 1969, appellant was indicted for attempted cheating by false pretenses, and on February 11, 1969, a jury 538 found him guilty of the charge. This was a miscarriage of justice, as became apparent when, later in February, appellant secured a bulldozer and dug up rubble at the site of his former home, uncovering pieces of the furniture for the loss of which he had made claim in his proof of loss. On the basis of this after-discovered evidence the trial court on March 2, 1970, granted appellant a new trial, and on December 21, 1970, the District Attorney asked and was granted leave to enter a nolle prosequi. On April 5, 1974, appellants filed a complaint in assumpsit to recover $32,250 from appellee ($20,000 for their home, $250 for their garage, $8,000 for their furniture, and $4,000 for additional living expenses). By answer and new matter appellee alleged that appellants had "failed . . . to comply with the provisions of the policy that suit be commenced within twelve (12) months next after inception of the loss . . . ." This allegation was the basis of appellee's motion for summary judgment, which was filed on January 31, 1975. Affidavits in support of and against the motion were filed, and on February 5, 1976, the lower court granted the motion. In its opinion explaining why it had granted the motion the lower court accurately summarized the issues raised by appellants: (a) The Company waived the twelve months suit requirement by action of its agent in causing criminal charges to be filed by the county detective. (b) This conduct caused a complete waiver not a postponement of the twelve month requirement and thus the Diamons could bring suit any time within the general six year statute of limitation period applicable to assumpsit action. or in the alternative (c) Even though the criminal charge against William J. Diamon was "nolle prossed" by the District Attorney, he was "forced by the circumstances" to wait out the five years statute of limitation applicable to the criminal charge before he brought suit against the Company. 539 Diamon's argument is that he could still be reprosecuted on the same charge until July 22, 1973, and if he filed civil action under the policy, he ran the risk of Company retaliation by the refiling of the criminal charge. Diamon argues that once the five year statute had run out on the criminal charge, he had an additional twelve months from the date to file his claim and did so eight months and thirteen days later on April 4, 1974. Slip Opinion at 3-4 (emphasis in original). II A The terms "waiver" and "estoppel" have come to have their own special meaning in the context of insurance law.[3] In O'Connor v. Allemania Fire Insurance Company, 128 Pa.Super. 336, 339-40, 194 A. 217, 218-19 (1937), this court noted: Some confusion has resulted from a careless and, perhaps, not wholly accurate use in the decisions of the words "waive" and "waiver" in connection with the clause in the policy limiting the time within which an action may be brought upon it, when what was really meant was such conduct on the part of the insurer or its authorized representatives as to excuse the insured from strict compliance with the terms of the policy and to extend the period for bringing suit. . . . Undoubtedly there may be an express waiver of the limitation of suit clause in the policy, and when there is such a definite waiver, it is no longer in force and thereafter the statutory limitation as to contracts applies; but our Supreme Court has ruled that when the insured seeks to excuse his failure to bring suit within the period of time fixed in the policy by conduct of the insurer which misled the insured to his injury the failure of the insured to bring suit within the prescribed time being due to the insurer's act or conduct , the limitation has not been fully and completely 540 waived in the strict sense of the word, but has only been suspended or extended, and begins to run when the insurer's conduct no longer excuses the insured's failure to bring suit. Two patterns of events in which recovery may be allowed despite an action being brought more than twelve months after the loss are discernable from the decisions. The facts in O'Connor v. Allemania Fire Insurance Company, supra, are representative of one pattern.[4] When the contents of a dwelling were destroyed by fire, the insured filed a claim for the loss. The insured and the insurer's adjuster then attempted to resolve disagreements regarding the value of the goods lost. Some thirteen or fourteen months after the loss these negotiations came to a halt, in December 1925 or January 1926, when the insurer asserted that it would not pay anything on the claim. The insured brought an action in assumpsit to recover for the loss on December 1, 1927. This court affirmed the lower court's judgment for defendant n.o.v., holding that: [W]here the acts or conduct of the insurance company and its duly authorized representatives have been such as to estop it from strictly enforcing the limitation clause . . the clause begins to run again when the company definitely announces its refusal to pay under the limitation clause and the insured, who is in full possession of the facts, must bring his or her action within a reasonable time thereafter, not exceeding twelve months followed such refusal. 128 Pa.Super. at 347, 194 A. at 221 (emphasis added). The facts of Fritz v. British America Assurance Company, 208 Pa. 268, 57 A. 573 (1904), are representative of the second pattern. On September 20, 1897, personal property 541 belonging to the insured was partially destroyed by fire. After filing his claim and proof of loss, the insured and the insurer's adjuster entered into settlement negotiations. A disagreement as to the amount of the loss lead to the appointment of appraisers on April 15, 1898, as provided by the policy. On January 18, 1900, the insured brought an action in assumpsit to recover his loss, alleging that within the last sixty days the appraisers had abandoned the appraisement. In reversing the non-suit entered for the insurer the Supreme Court stated: The company having required an appraisement by reason of its inability to agree with the insured as to the amount of the loss must be regarded as having waived its right to enforce the limitation clause until the appraisers have made an award or the appraisement has been abandoned, unless the award has been delayed or the appraisement has been abandoned by reason of the conduct of the insured. When the appraisement has been terminated, either by an award or an abandonment without fault of the parties, the time within which an action may be brought begins to run. 208 Pa. at 275, 57 A. at 576 (emphasis added.) Reflection upon these cases will show that when the problem arises, whether an insurer is estopped from enforcing, or will be regarded as having waived its right to enforce, the limitation clause, two questions must be answered: did the insurer take some action that suspended the clause; and if it did, so that suspension occurred, did something happen to start the clause running again? B It is reasonably plain from the record we have that the District Attorney filed the criminal complaint against appellant William Diamon as a result of being told by appellee's adjuster that Diamon had attempted to cheat the 542 company.[5] This action by the adjuster suspended the limitation clause. In Abolin v. Farmers American Mutual Fire Insurance Company, 100 Pa.Super. 433 (1930), the insured brought suit on January 28, 1927, to recover for a fire loss that had occurred on January 8, 1926. In rejecting the insured's argument that the suit was timely this court said: The most that the [insured] could show was that five or six months after the fire, and months before the limitation in the policy became effective, when the [insured] asked whether the company was going to pay his claim he was told by the managers that they had not decided whether they would pay him or arrest him, apparently for being concerned in the burning of the insured property. There was certainly nothing in this statement that was by way of inducement to withhold bringing suit, or that evidenced any intention on the part of the company to waive this provision of the contract. 100 Pa.Super. at 436. It is apparent from this statement that if the company had told the insured that it had decided to have him arrested, and if in fact (as here) he had been arrested, there would 543 have been such an "inducement to withhold bringing suit" as would have suspended the limitation clause. In a similar context our Supreme Court has found that an allegation of fraud by the insurer precluded the insurer from asserting the time limit for filing the proof of loss. Simons v. Safety Mutual Fire Insurance Company, 277 Pa. 200, 120 A. 822 (1923). Fedas v. Insurance Company of the State of Pennsylvania, supra, is to the same effect. There, the insured brought an action in assumpsit on a fire insurance policy for the partial destruction of her home and its contents. The policy provided that proof of loss must be filed within sixty days of loss. An adjuster told the insured that the company would not pay her claim because she was criminally responsible for the fire that caused the loss. The authorities attempted to establish that responsibility but the action was dropped for lack of proof. The insured then filed her proof of loss, several months after the sixty day limitation had passed. The lower court held she was estopped from setting up the company's waiver of the sixty day limitation. Reversing, the Supreme Court said: An estoppel exists where one by his words or conduct causes another to believe in the existence of a state of facts, inducing reliance thereon . . . But one is not estopped unless the contemplated action would prejudicially injure another. Wherein was the insurance company injured, or in what respect did it alter its position after the waiver, by receiving the proof of loss . . .? It declined to pay for a reason that afterward turned out to be without foundation. The rights of the parties were fixed. 300 Pa. at 560, 151 A. at 287 (emphasis added). So here. Appellee's assertion that appellant William Diamon was criminally responsible has turned out to be without foundation. When appellee made its mistaken charge against him, the rights of the parties were fixed, which is to say, the limitation clause was suspended. To hold that it was not would be to enable appellee to benefit from its own mistake. 544 C Having determined that the limitation clause was suspended, the next question is whether something happened to start it running again. On the record we have we cannot answer this question. Cases such as O'Connor v. Allemania Fire Insurance Company, supra, show that the limitation clause would have started to run again if, after the criminal charge against appellant William Diamon was nol prossed, appellee had "definitely announce[d] its refusal to pay." 128 Pa.Superior Ct. at 347, 194 A. at 221. However, it does not appear from the record that appellee made any such announcement. Given this circumstance, it might be held that the suspension of the clause continued in effect; the reasoning might be that since appellee started the suspension, it was obliged to end it. On this reasoning, appellants' complaint was filed in time, for the only limitation that remained applicable was the six year statute of limitations, Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31, which was met. This conclusion, however, appears precluded by Fritz v. British America Assurance Company, supra. There, it will be recalled, the event that suspended the limitation clause was an appraisement, the Supreme Court stating that the clause "begins to run" "[w]hen the appraisement has been terminated, either by an award or an abandonment without fault of the parties . . ." 208 Pa. at 275, 57 A. at 576. The Court did not say, it will be noted, that in order to start the clause running again, after the abandonment of the appraisement, the insurer had to announce that it would not pay the claim. The failure of the Court to impose such a requirement appears significant. The appraisers were independent of the insurer; so was the District Attorney in the present case. If, upon learning that appraisers have abandoned their appraisement, the insurer need not announce its refusal to pay the claim as a condition of starting the clause running again, it is arguable that neither must the insurer make such an announcement upon learning that the District Attorney has abandoned the prosecution. 545 In this regard a further distinction is in order. In Fritz the appointment of the appraisers was called for by the policy. It might be said, therefore, that the abandonment of the appraisement was an event that both the insurer and insured would know had occurred; on this view, it is understandable that the Court would hold that upon the abandonment, the limitation clause started to run again, without any further announcement by the insured of refusal to pay. Where the third party is some one entirely outside the policy, as was the District Attorney here, the situation is less clear. Neither the insurer nor the insured knows what the District Attorney may do. Has he abandoned the prosecution, or will he perhaps at some point re-institute it? Given this uncertainty it is not possible to formulate a fixed or automatic rule, either that the limitation clause did start to run again, from the time the nol pros was entered, or that it did not. Instead, the case should be decided by what an examination of all of the unusual facts suggest is equitable. In order to do this, a fuller record is needed, for we do not know all of the facts. This approach is consistent with principle. The feature common to all of the cases that have been discussed is that the concept of suspension of a limitation clause is an aspect of equity. This is no where more forcefully stated than in Fedas v. Insurance Company of the State of Pennsylvania, supra 300 Pa. 555 at 559, 151 A. 285 at 286, where the Supreme Court said: The utmost fair dealing should characterize the transactions between an insurance company and the insured. If the insurer, having knowledge of a loss, by any act throws the insured off his guard as to the necessity of performing some duty enjoined by the policy, the insurer should not be permitted to take advantage of the failure to act. It has been held many times that an insurance company may waive filing a technical proof of loss. Here, appellants claim that they delayed filing their complaint in assumpsit until the five year statute of limitations 546 had run,[6] because they were advised by their attorney that the nol pros did not preclude another prosecution of appellant William Diamon, and, given appellee's past conduct, they feared that to resubmit their claim would result in another complaint to the District Attorney, and another prosecution. (See the affidavit filed by appellant William Diamon in opposition to the motion for summary judgment.) The question is therefore presented whether appellants' fear may equitably be held to be the responsibility of appellee. The answer to this question depends on just what the adjuster, or another representative of appellee, said to appellants, and when he said it, and there is no evidence of these facts in the record. The propriety of remand for the development of a fuller record is particularly apparent when the respective positions of the parties are compared. Appellants have lost their home, garage, and furniture, and have received nothing, even though they were insured and promptly filed their proof of loss. In addition, they have suffered the agony of an unfounded criminal prosecution. In contrast, the position of appellee is that it initiated the prosecution, and even when the prosecution proved unfounded, failed to make any payment. This failure is particularly striking when it is borne in mind that appellee's initial complaint concerned only the furniture. Thus, having made an unfounded complaint regarding $8,000 worth of furniture, appellee has refused to pay not only for the loss of the furniture but also for the loss of a $20,000 home, a $250 garage, and $4,000 additional living expenses. 547 In its recent decision in Brakeman v. Potomac Insurance Company, 472 Pa. 66, 371 A.2d 193 (No. 71 March Term, 1976, filed March 16, 1977), our Supreme Court held that where an insurance company seeks to be relieved of its obligations under a liability insurance policy on the ground of late notice, the company will be required to prove both that the notice provision was in fact breached and that the breach resulted in prejudice to the company. Under prior decisions an insured had the burden of proving compliance with the terms and conditions of the policy and a sufficient reason for delay. In reaching its determination that these decisions should be overruled the Court stated: A strict contractual approach is . . . inappropriate here because what we are concerned with is a forfeiture. The insurance company in the instant case accepted the premiums paid by the insured for insurance coverage and now seeks to deny that coverage on the ground of late notice. . . . ..... [A] reasonable notice clause is designed to protect the insurance company from being placed in a substantially less favorable position than it would have been had timely notice been provided, e.g., being forced to pay a claim against which it has not had an opportunity to defend effectively. . . . Where the insurance company's interests have not been harmed by a late notice, even in the absence of extenuating circumstances to excuse the tardiness, the reason behind the notice condition in the policy is lacking, and it follows neither logic nor fairness to relieve the insurance company of its obligations under the policy in such a situation. . . . We have in the past excused a condition of forfeiture where to give it effect would have been purely arbitrary and without reason, and we are of the opinion that, in the absence of prejudice to the insurance company, such a situation exists in the contest of a late notice of accident. . . . Allowing an insurance company, which has collected full premiums for coverage, to refuse compensation to an 548 accident victim or insured on the ground of late notice, where it is not shown timely notice would have put the company in a more favorable position, is unduly severe and inequitable. Moreover, we do not think such a result comports with the reasonable expectations of those who purchase insurance policies. 472 Pa. at 73, 371 A.2d at 197 (emphasis added). Similarly, here appellee has shown no prejudice from appellants' late filing of their complaint. It may well be that after remand the record will look much different, and will not show appellee in so unfavorable a light as now. The point at the moment is that remand is required so that we may have some assurance that a just result has been reached. As noted at the outset, summary judgment should not be granted when there is any doubt about what the result should be. Just v. Sons of Italy Hall, supra. Here there is grave doubt. III There is an alternative reason why remand is required. As the record stands now, it at least suggests that appellee violated its implied agreement not to do anything that would destroy appellants' right to receive the benefits of their policy. A The lower court in granting appellee's motion for summary judgment stated: We hold that the good faith institution of criminal charges of arson by a company against its insured, or company cooperation with law enforcement agencies in so doing is not such conduct as constitutes a waiver or an estoppel of the insurer's contractual right to have suit filed against it within the specific period of time provided in the contract. ..... We find nothing in the complaint or affidavits that alleges conduct on the part of the Company that abrogated the 549 requirement that suits under the policy had to be commenced within twelve months of the loss. Slip Opinion at 7 (emphasis added). It is therefore clear that the lower court's decision turned upon the assumption that appellee acted in good faith in telling the District Attorney that appellant William Diamon had attempted to cheat it; but as the New Jersey Supreme Court has pointed out: Good faith is a broad concept. Whether it was adhered to by the carrier must depend upon the circumstances of the particular case. A decision not to settle must be a thoroughly honest, intelligent one. It must be a realistic one when tested by the necessarily assumed expertise of the company. Bowers v. Camden Fire Insurance Association, 51 N.J. 62, 71, 237 A.2d 857, 861 (1968) (emphasis added). Here there is no support for the lower court's assumption that appellee acted in good faith, and indeed, the record contradicts the assumption. Thus in his affidavit opposing the motion for summary judgment appellant William Diamon states: 6. At my request, Mr. Linn, then county detective, Fred Carmen, ex-fire captain, retired, together with James E. Stritzinger, a bulldozer operator, went out to the property and discovered all of my burned and destroyed household goods and furnishings both sitting above the surface of the ground and buried underneath the debris; the bulldozer was used to excavate the cellar and expose much of the burned furniture. (Emphasis added) This prompts one to wonder about the quality of the investigation conducted by appellee's adjuster. What personal observations did he make, to whom did he talk, and what efforts did he make to verify what he was told, before he told the District Attorney that appellant William Diamon had moved the furniture from the home before the fire? Perhaps the investigation was conducted in a responsible manner; but that is not the way it appears now. 550 In D.B. Van Campen Corp. v. Building & Construction Trades Council of Phila., 202 Pa.Super. 118, 122, 195 A.2d 134, 136-37 (1963), this court stated: The law is clear that "In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party's right to receive the fruits of the contract. Accordingly, a promise to do an act necessary to carry out the contract must be implied." 8 P.L.E., Contracts, § 140. 5 Williston, Contracts, § 670 at 159 (3d ed. 1961). Accord, Association Group Life Inc. v. Catholic War Veterans of United States of America, 61 N.J. 150, 293 A.2d 382 (1972); Food Fair Stores, Inc. v. Blumberg, 234 Md. 521, 200 A.2d 166 (1964). When this principle is applied to the present case it will be seen that implied in the policy was a promise by appellee that it would exercise reasonable care in investigating a claim by appellants. When an insured has contracted for protection against a specified loss, he is entitled to expect that a claim made under the policy will not be rejected except for good cause.[7] If an insurer could reject a claim for any reason, whether well-founded or not, the protection for which the insured had contracted would be illusory.[8] The insurer's promise to exercise reasonable care 551 in investigating a claim is necessary to ensure that the insurer "refrain[s] from doing anything that would destroy or injure [the insured's] right to receive the fruits of the contract." This reasoning has been adopted by our Supreme Court in other areas of insurance law. In Gedeon v. State Farm Mutual Automobile Insurance Company, 410 Pa. 55, 59, 188 A.2d 320, 322 (1963), the Court in discussing the obligation that an insurer assumes under a typical automobile liability insurance policy stated: [B]y asserting in the policy the right to handle all claims against the insured, including the right to make a binding settlement, the insurer assumes a fiduciary position towards the insured and becomes obligated to act in good faith and with due care in representing the interests of the insured. If the insurer is derelict in this duty, as where it negligently investigates the claim or unreasonably refuses an offer of settlement, it may be liable regardless of the limits of the policy for the entire amount of the judgment secured against the insured. Accord, Rova Farms Resort, Inc. v. Investors Insurance Company of America, 65 N.J. 474, 323 A.2d 495 (1974); Bowers v. Camden Fire Insurance Association, supra; Crisci v. Security Insurance Company of New Haven, 66 Cal. 2d 425, 58 Cal. Rptr. 13, 426 P.2d 173 (1967); Comunale v. 552 Traders & General Insurance Company, 50 Cal. 2d 654, 328 P.2d 198 (1958). The duty of good faith and due care in investigating the insured's claim thus implied in the contract is an express condition of the contract.[9] Strict compliance is therefore required,[10] and the detriment suffered by an insured who reasonably expected that a valid claim would be paid must be compensated for in damages. In Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8 (1966), the claim was that the insurer had wrongfully refused to settle a claim against its insured. Citing and quoting from Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459, 134 A.2d 223 (1957), and Gedeon v. State Farm Mutual Automobile Insurance Company, supra, the Court held: We believe that this recent case law, employing contractual terms for the obligation of the insurer to represent in good faith the rights of the insured, indicates that a breach of such an obligation constitutes a breach of the insurance contract for which an action of assumpsit will lie. Id. 422 Pa. at 508, 223 A.2d at 11. B In what relationship does appellee's implied duty of good faith and due care in investigating appellants' claim stand with respect to appellants' contractual obligations under the policy? Specifically, if appellants are able to establish on remand that appellee did breach its duty, must their claim fail nevertheless because the action was not brought within twelve months of the loss? This question is answered by Gruenberg v. Aetna Insurance Company, 9 Cal. 3d 566, 108 Cal. Rptr. 480, 510 P.2d 1032 (1973). There the California Supreme Court considered the 553 insurer's duty not to withhold unreasonably payments due under a policy. The insured alleged that three insurers wilfully and maliciously entered into a scheme to deprive him of the benefits of the fire insurance policies on his restaurant. Besides encouraging the bringing of criminal charges against the insured, by suggesting to the authorities that the coverage was excessive, the insurers through their attorney demanded that the insured submit to an examination under oath and produce certain documents to them while the criminal charges were pending. This demand was based on a "cooperation and notice" clause contained in the policy. On the advice of his counsel the insured refused to submit to the examination or to produce the documents. The insurers subsequently denied liability, basing the denial on this refusal. Said the California Supreme Court: All parties appear to assume that [the insured's] contractual duty is a dependent condition . . . to [the insurers'] covenant of good faith and fair dealing. In other words, the underlying premise of their arguments is that if [the insured's] failure to appear . . . constituted a breach of [the insured's] obligation under the policies, then [the insurers'] duty of good faith and fair dealing was excused. We do not think, however, that the controlling issue here is the nature of [the insured's] duty, i.e., whether his dependent duty is precedent or subsequent; rather, the crucial issue is the nature of [the insurers'] duty, i.e., whether their duty of good faith and fair dealing is absolute or conditional. ..... While it might be argued that [the insurers] would be excused from their contractual duties (e.g., obligation to indemnify) if [the insured] breached his obligations under the policies, we do not think that [the insured's] alleged breach excuses [the insurers] from their duty, implied by law, of good faith and fair dealing. In other words, the insurer's duty is unconditional and independent of the performance of [the insured's] contractual obligations. 9 Cal.3d at 577-78, 108 Cal.Rptr. at 487-88, 510 P.2d at 1039-40 (emphasis in original). 554 This reasoning is persuasive. Otherwise the insurer could circumvent its duty to act in good faith by asserting a violation by the insured of a contractual obligation that would not have occurred but for the insurer's own action in denying the claim.[11] Decisions of our own Supreme Court are not quite so much in point as Gruenberg v. Aetna Insurance Company, but are to the same effect. In Arlotte v. National Liberty Insurance Company, 312 Pa. 442, 167 A. 295 (1933), the insured parties, after giving their insurer prompt notice of their loss, were told that the loss was not covered by the policy. The insured parties, who could not read English and could not find their policy, relied on this assertion and did not bring an action to recover for their loss until they found the policy more than a year after the loss. The insurer set up as a defense the fact that the proof of loss had not been filed within sixty days and that the loss had occurred more than twelve months ago. The Supreme Court rejected this defense stating: Had it not been for [the agent's] misrepresentation of the terms of the policy, all the conditions precedent to the maintenance of this action doubtless would have been performed by [the insured parties]. . . . [The insurer] is precluded from taking advantage of the nonperformance of these conditions, if it is properly to be held responsible for [the agent's] misrepresentation. 312 Pa. at 446, 167 A. at 296. 555 Similarly, where the insurer has asserted that the insured's fraud is the only reason for denying the claim, the insurer should not be allowed to set up a different defense after the insured has proved himself blameless. Simons v. Safety Mutual Fire Insurance Company, 277 Pa. 200, 120 A. 822 (1923).[12] From these decisions the conclusion follows that if on remand appellants can establish that appellee did not exercise reasonable care in investigating their claim, their action to recover on the policy is not barred by their failure to comply with the limitation clause. The order of the lower court is reversed and the case remanded for further proceedings. HOFFMAN and CERCONE, JJ., concur in the result. VAN der VOORT, J., notes his dissent. WATKINS, Presiding Judge, absent. NOTES [1] The findings of fact made by the lower court are the basis for this history. [2] In appellee's Answer and New Matter it is alleged that on Sept. 17, 1968, appellee notified appellants in writing that it rejected their proof of loss and would not pay the amount claimed. In their Reply to New Matter appellants "aver that they cannot remember" when the claim was rejected but admit that in fact it was rejected. The lower court found that the claim was rejected on Sept. 17, 1968. [3] Couch on Insurance 2d § 75.183. [4] Commonwealth v. Transamerica Company, 462 Pa. 268, 341 A.2d 74 (1975); Arlotte v. National Liability Insurance Company, 312 Pa. 442, 167 A. 295 (1933); Terpeluk v. Insurance Company of North America, 189 Pa.Super. 259, 150 A.2d 558 (1959). See also McMeekin v. Prudential Insurance Company of America, 348 Pa. 568, 36 A.2d 430 (1944); Sudnick v. Home Friendly Insurance Company, 149 Pa.Super. 145, 27 A.2d 468 (1942). [5] The record is not fully developed. See, however, paragraph 4 of the affidavit filed by appellant William Diamon in opposition to the motion for summary judgment: 4. I was told by Walter E. Linn, former county detective of Crawford County, that he signed the controversial criminal information against me for cheating with false pretenses, at the instigation of John J. Hurban, Sr., agent and adjuster for Penn Mutual Fire Insurance Company, defendant herein. This is not in proper form. Pa.R.Civ.P. 1035(d). It nevertheless appears from the record to be correct. Appellee submitted in support of the motion for summary judgment an affidavit by the District Attorney in which the following statement appears: This charge arose out of a certain fire which occurred at the residence of William J. Diamon on April 9, 1968, and alleged that the said William J. Diamon had made a representation to John J. Hurban, Sr., Agent for Penn Mutual Insurance Company that the said William J. Diamon had had destroyed personal property of the value of $20,000 in said fire and further alleged that in truth and fact the said William J. Diamon had removed said personal property from said house in December 1967. [6] The statute of limitations applicable to the crime of attempted cheating by false pretenses is two years. Act of Mar. 31, 1860, P.L. 427, § 77; Act of April 6, 1939, P.L. 17, § 1, 19 P.S. § 211. However, the limitation period for felonies is five years. Id. Here, appellants' attorney may have had in mind the possibility of a prosecution for arson, which is a felony. Cf. the opinion of the lower court, which referred to the "institution of criminal charges of arson by a company against its insured." Slip Opinion at 7. And see appellants' Reply to New Matter where appellants "aver they were forced to wait until all possible Statute of Limitations for Criminal Actions had lapsed before they filed their civil action against" appellee. [7] See generally R. Keeton, Insurance Law, § 6.3 (1971). [8] In Brakeman v. Potomac Insurance Company, supra, besides relying on the fact that a forfeiture was involved, see text, supra 472 Pa. at pp. 72, 73, 372 A.2d at pp. 1224, 1225, our Supreme Court noted: The rationale underlying the strict contractual approach reflected in our past decisions is that courts should not presume to interfere with the freedom of private contracts and redraft insurance policy provisions where the intent of the parties is expressed by clear and unambiguous language. We are of the opinion, however, that this argument, based on the view that insurance policies are private contracts in the traditional sense, is no longer persuasive. Such a position fails to recognize the true nature of the relationship between insurance companies and their insureds. An insurance contract is not a negotiated agreement; rather its conditions are by and large dictated by the insurance company to the insured. The only aspect of the contract over which the insured can "bargain" is the monetary amount of coverage. . . Thus, an insured is not able to choose among a variety of insurance policies materially different with respect to notice requirements, and a proper analysis requires this reality to be taken into account. 371 A.2d at 196 (emphasis added). See also, R. Keeton, Insurance Law, § 6.3(a), at 350-51 (1971): Insurance contracts continue to be contracts of adhesion, under which the insured is left little choice beyond electing among standardized provisions offered to him, even when the standard forms are prescribed by public officials rather than insurers. Moreover. . . most insurance policy provisions are still drafted by insurers . . . . Under such circumstances as these, judicial regulation of contracts of adhesion . . . remains appropriate. [9] "An express condition is provided for by the parties. It may be spelled out clearly in so many words or it may be implied in fact; that is `gathered from the terms of the contract as a matter of interpretation.'" J. Calamari and M. Perillo, Contracts, § 141 (1970), 5 Williston, Contracts, § 668 at 152-53 (3d ed. 1961). [10] 5 Williston, Contracts, § 669 at 154 (3d ed. 1961). [11] In Gruenberg v. Aetna Insurance Company, supra, the California Supreme Court after finding the duty of good faith and fair dealing unconditional pointed out: Even if [the insurers'] duty were construed as a dependent condition, i.e., dependent on [the insured's] performance of his obligations under the policies, we think that [the insured's] failure to appear would still not be fatal to his cause of action. That is, the allegations of the complaint demonstrate that [the insured's] failure to appear was induced by [the insurers'] conduct, in breach of their duty of good faith and fair dealing. Therefore, [the insured's] obligation to appear may be seen as excused by [the insurers'] alleged breach. 9 Cal.3d at 578 n. 9, 510 P.2d at 1040 n. 9, 108 Cal.Rptr. at 488 n. 9, (emphasis in original). [12] The insured gave prompt notice to his insurer of his loss. The only reason asserted by the insurer for delaying settlement was that the claim was dishonest. However, at the trial no evidence of the insured's fraud was offered. The Court held that the insurer could not now allege as a defense that proofs of loss were not timely filed or that the inventory of property was not correct because: When a definite reason for declining to pay is asserted, and the [insured] thus led to believe it the sole cause, and is misled to his injury, the company is estopped from thereafter setting up a different ground . . . . Id. at 203-04, 120 A. at 823.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510493/	160 F.2d 84 (1947) CAMP WOLTERS LAND CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 11642. Circuit Court of Appeals, Fifth Circuit. February 27, 1947. 85 R. B. Cannon, of Fort Worth, Tex., for petitioner. Douglas W. McGregor, Asst. Atty. Gen., Hilbert P. Zarky, Robert N. Anderson and Paul F. Mickey, Sp. Assts. to the Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., J. P. Wenchel, Chief Counsel, and Charles E. Lowery, Sp. Atty., Bur. Int. Rev., both of Washington, D. C., for respondent. Before McCORD, WALLER, and LEE, Circuit Judges. WALLER, Circuit Judge. The taxpayer has admittedly been a Texas corporation since April 25, 1941, but the controversy here revolves chiefly around its status corporate or otherwise between that date and the middle of February in the same year at, and after, which time its incorporators made contracts in the name of, and in behalf of, the taxpayer before its charter had been filed with the Secretary of State as required by Texas law. [Unless otherwise noted all events were in 1941.] The facts found by the Tax Court may be summarized as follows: Prior to January 1 the City of Mineral Wells, Texas [hereafter referred to as "the City"], had leased six or seven thousand acres of lands from the owners and in turn sub-leased to the United States for use as an Army camp. Shortly thereafter it was determined that the acreage so leased was inadequate. When the City attempted to lease further acreage from the owners in the selected area it found that the owners were willing to sell, but not to lease, their land. Being then involved in municipal bankruptcy proceedings, the City was financially unable to purchase these lands. Thereupon a group of business men in the City, in order to prevent the loss of the Army camp, agreed to organize a corporation which would purchase them with funds obtained from stock subscriptions. They began negotiations to this end early in January, 1941, with the owners of these lands. They also made an oral agreement with the City that it would lease the lands when so acquired and that it would in turn sublease them to the United States. Simultaneously, and for the effectuation of the foregoing plan, the men began to organize a corporation (the taxpayer) with a capital stock of $60,000.00. By the middle of February all of the capital stock had been subscribed and by March 16 $41,500.00 had been paid in. Two local banks then loaned "Camp Wolters Land Company" the total sum of $19,482.08. A donation in the sum of $750.00 was also received. These funds, in excess of $61,700.00, were deposited in the bank in the name of the taxpayer, of which $52,952.60 were paid to Windham, Lamkin, Keener, Johnson, Watson, and Brock between March 17 and March 29 for deeds which were executed in the name of the corporation. Four other tracts were leased from the owners in the name of the corporation and on March 1 a lease to the City from "Camp Wolters Land Company, by A. H. Guinn, President, attest, S. C. Myers, Secretary," was signed, although not acknowledged until the 8th of May. Nevertheless, the lease became operative on March 1, on which date the United States went into possession. The lease rental to be paid by the City was $10,901.02 per year for the first three years and $12,501.02 per year thereafter. It was an annual lease, renewable from year to 86 year at the City's option, and was renewed in 1942, 1943, and 1944. Prior to January the City had leased from the owners, Deakins, Maddux, and Sullivan, certain other tracts, which it thereafter sub-let to the Government, wherein the owners had each reserved small tracts of from five to ten acres on which their homes and other improvements were situated. Some time in February, however, it was discovered that these reserved tracts would be in the direct line of fire and that the improvements thereon would have to be purchased, torn down, and removed, the accomplishment of which was made a condition precedent by the Army to a continuation of the construction of the firing range for which the taxpayer's lands had been leased. The City had no money with which to purchase and remove these houses and in consequence the group, acting on behalf of, with the funds of, and in the name of, the taxpayer, bought those improvements, had same demolished and removed. Checks from the funds on deposit in the name of the taxpayer, on the dates, to the payees, and in the amounts as follows, were issued: March 18, 1941 Deakins ...... $3,500.00 March 18, 1941 Maddux ....... 1,750.00 March 19, 1941 Sullivan ..... 4,000.00 _________ Total .................... $9,250.00 The improvements were sold for $1,000.00 and were removed some time in April. The United States paid taxpayer $1,600.00 as expenses for the removal of the demolished improvements. A net loss from the sale of these improvements of $6,650.00 resulted. It was necessary to purchase and remove these buildings in order to secure a tenant, and to realize on the lease. In 1942 a fire partially destroyed some of the uninsured improvements on one of the tracts which the taxpayer had purchased, causing a loss of $2,187.50. The peach orchard of 3180 trees on the Lamkin tract was also destroyed due to the refusal of the Army to allow the lessee access to the tract so as to care for the orchard. The constant and heavy bombardment carried on by the Army put the houses on the Windham and Brock tracts in such bad condition that they had no salvage value. In 1943 the Army was allowed to use these houses in connection with its training in street fighting. For the deterioration thus incurred petitioner claimed depreciation of $2,353.41 in its 1941 return and $3,906.25 in its 1942 return, both of which were, with equal facility, disallowed by the Commissioner. The corporation failed to file an excess profits tax return on December 31, 1941. The Commissioner disallowed: (1) any deduction for the loss on the improvements which had to be torn down on the Deakins, Maddux, and Sullivan tracts; (2) any loss caused by the fire on the Windham tract; (3) any loss on the peach orchard on the Lamkin tract; (4) any depreciation that occurred by virtue of the damage to the various improvements on the lands owned by the taxpayer caused by the heavy firing. Moreover, the taxpayer's return was made on the theory that it was organized and in existence for tax purposes not later than March 16, 1941, but the Commissioner determined that it was not organized for tax purposes until May 8 and that it, accordingly, should pay an excess profits tax deficiency in the sum of $253.23 and a penalty of $65.82. The Tax Court sustained the Commissioner in every respect except that it held that the corporate existence of the taxpayer began on April 25 instead of May 8, and that the earlier date should be used in determining the taxpayer's tax liabilities. In sustaining the Commissioner the Tax Court decided that: 1. The $6,650.00 loss on account of the purchase and removal of the improvements from the Deakins, Maddux, and Sullivan tracts occurred in April but it was not shown whether it occurred before or after April 25 or whether or not it was the result of transactions by corporation's organizers or by the corporation and were not transactions of the taxpayer. 2. There was no adequate proof of any cost basis to the taxpayer of the improvements destroyed by fire. 3. There was no adequate proof of any cost basis to the taxpayer to support the deductions claimed for depreciation. 87 4. The taxpayer's corporate existence began April 25 instead of March 1, the date upon which it made its lease, or March 16, when it began to acquire certain properties, and that the date upon which it filed its charter with the Secretary of State should be used as the date by which the annualization of excess profits income should be reckoned. 5. The lease rentals for the period from March 1 to April 25 when the charter was filed should be chargeable to the corporation because the pleadings were insufficient to authorize the charging of same to the incorporators of the petitioner, or to them as an association which under the statute requires them to be taxed as a corporation. [Section 3797(a) (3), I.R.C., 26 U.S.C.A. Int.Rev.Code, § 3797(a) (3).] 6. The contention of the petitioner that $6,650.00, the net cost of acquiring and demolishing the three residences was either (a) an expense of obtaining a tenant under a one-year lease, deductible in full from the 1941 income, or (b) an expenditure amortizable over the life of the lease and any reasonably foreseeable renewals thereof which together did not exceed a period of five years, must be overruled because the petitioner had not established that it acquired, sold, and removed the improvements after it came into existence on April 25, although the loss occurred some time in April. 7. The petitioner was not entitled to depreciation claimed on the building, orchard, or improvements on the tracts which it owned because of its failure to segregate the cost of the improvements from the value of the land. 8. The taxpayer was not entitled to recover for the loss occasioned by the fire on the Windham tract because of the inadequacy of the proof as to the value of the improvements destroyed by fire. In other words, it found that it was all right to charge the taxpayer with all of the income received by virtue of the transactions which its incorporators carried on in its name and in its behalf and with its funds before its charter was filed with the Secretary of State, but that it was not permissible for such taxpayer to be allowed any deductions for losses which occurred while such income was being earned for it. It seems to one not possessed of a specialized tax competence that if the tax consequences here are to be measured solely by the date upon which the corporation filed its charter with the Secretary of State, then one of three results must occur. Either the tax consequences will be: (1) those of the incorporators for that period of the year while they were acting as partners; or (2) those of an association taxable under Sec. 3797(a) (3) as a corporation; or (3) those of the corporation because of its having adopted and received the benefit of the transactions of its incorporators. In the present case the incorporators: (a) held themselves out as a corporation; (b) made deposits in the bank, acquired leases, wrote checks, bought land, executed leases, collected rent, borrowed money, accepted contributions all in the name of the corporation. We recognize the legal postulate that, before the ordinary relation of principal and agent can be formed, there must be a principal in esse. [10 Tex.Jur. p. 599, § 11.] We agree that a promoter who purports to act in behalf of a projected corporation, or a corporation not yet in existence, cannot be treated as an agent of a principal not then in existence, and where there is nothing more than a contract by a promoter in which he undertakes to bind the future corporation, in the absence of proof that the corporation when organized adopted, either expressly or impliedly, the contract of its promoter as its own, such a contract cannot be enforced under the law of Texas.[1] But even if this were a suit in which it was sought to enforce the contracts of the incorporators against the corporation, there could be no escape from the fact that the corporation adopted the preorganization contracts of its incorporators, by recognizing them as its own and by receiving, accepting, and using all the fruits thereof. Not only does it have the title to 88 the lands which were purchased with the funds raised for it by the issuance of its stock, but it also received the entire income derived from the contracts that were made in its behalf by its promoters. These acts clearly amount to an adoption of the pre-organization contracts. However, this is not a suit to enforce a contract against the taxpayer, but it is one whereby the taxpayer stands before the Court asserting that the income belonged to it and that it had adopted and carried out every contract which its incorporators made antecedent to its becoming a completed legal entity. After its incorporators had: held it out as a corporation, bought land, made leases, made deposits, borrowed money, issued checks, all as a corporation, does anyone think for a moment that the taxpayer could defend against the assessment of taxes on the income thus received on the ground that the income was derived from business transacted by it before it filed its articles, and thus take advantage of the delay and default of its own incorporators? Moreover, even though at the time of the acquisition of the deeds and leases and the other contracts by the incorporators of taxpayer, there was no fully born corporation in being and in consequence the title to the property thus acquired vested in the incorporators instead of the corporation, such incorporators would hold the title in trust as constructive trustees who could be compelled to convey the title to the corporation upon its coming into lawful being. William Cameron and Company v. Trueheart, Tex.Civ.App., 165 S.W. 58; 10 Tex.Jur. p. 600, § 11. Likewise the grantors, having knowingly accepted the taxpayer's money for the land, could be required to execute an effective deed. The income derived from the property so purchased, or leased, by the incorporators for the taxpayer was also held in trust for the corporation to be formed. Income from property should ordinarily go to him who is the beneficial or real owner and income taxes ought to be laid against him who owns the income. Since the corporation was the beneficiary of the income so held in trust for it, and since the law allows certain deductions and losses incurred in the production of such income, the taxpayer here was entitled to such deductions as would have been available to it had it been duly and legally incorporated prior to any of the transactions by its incorporators under consideration here. We conclude: 1. That the loss of $6,650.00 occasioned by the purchase, demolition, and removal of the improvements on the Deakins, Maddux, and Sullivan tracts was an expense incident to securing the lease and obtaining a tenant that should be amortizable over the life of the lease and any reasonably foreseeable renewals thereof, not to exceed the period of five years, irrespective of whether the taxpayer acquired, sold, and removed the improvements before or after April 25. 2. That the petitioner was entitled to claim depreciation on the orchard and on the other improvements on the land which it purchased in fee simple. 3. That the petitioner was entitled to claim a deduction for the loss that occurred by fire. 4. That in the annualization of excess profits tax the entire period in which the income was in process of production should be used. A majority of the Court is of the opinion that the evidence as to the cost or value of the improvements upon which depreciation is claimed and upon which the fire loss occurred was insufficient, hence the claimed depreciation was properly disallowed. The writer, standing alone, is of the opinion that there was undisputed evidence that the 3180 peach trees (which depreciated so as to become worthless by reason of the inability of the taxpayer to have access for their care and cultivation) were worth $2.00 each at the time of the sale to taxpayer and that depreciation thereon should be allowed. The initial cost of planting a peach orchard should not be the test because an orchard increases in value as its productivity increases with the growth, care, and cultivation of the trees. Within 89 the reasonable productive life of the tree its value is not static. The writer believes that the witness, Lamkin, who sold the tract to taxpayer, who planted and cultivated the peach orchard, and who sold $2,200.00 worth of fruit off the young (four-year-old) trees in 1940, definitely established a basis upon which depreciation should have been allowed.[2] We are in agreement that the decision of the Tax Court was not in accordance with law in holding that the deduction of $6,650.00 was not allowable to the taxpayer because the transactions out of which such claimed deductions arose occurred prior to April 25, 1941, and that, moreover, it was error to compute an excess profits tax (and penalty) as if the income from the corporation had accrued only after said date. The judgment is reversed insofar as it denied taxpayer the aforementioned deduction of $6,650.00, and insofar as the annualization of the excess profits tax was based upon occurrences subsequent to April 25, 1941, but in all other respects the judgment of the Tax Court is affirmed, and the cause is remanded for further proceedings not inconsistent herewith. Affirmed in part and reversed and remanded in part. NOTES [1] 10 Tex.Jur. p. 601, § 12. [2] Mr. Lamkin testified: "I bought the property in 1934. I gave him $35.00 an acre for it, but there were some back taxes and various other things that made it add up (to more). I don't remember just what the amount was but it was something over $4,000.00. * ." "I told them (meaning the group that bought the place) if they would let me cut out 80 acres I would let them have the remaining 100 acres for what I had tied up in it, * * and we reached an arrangement on that basis. "I figured I had in the property between $2,600.00 and $3,000.00 in the improvements besides the orchard. The orchard was just coming into the fourth year to bear, and was just coming into where it would begin to make me something like it ought to have. The year before I got around $2,200.00 off of it, that was in 1940. As to my investment in the orchard, I would consider about $2.00 a tree a very low price considering the cost of the trees, putting them out, and cultivating them for three years. I think $2.00 a tree would be a very conservative figure as to the value of the orchard at the time of the sale. "I know the state of the orchard at the present time. I don't think there are many of the trees in the orchard living at this time. I attribute this to neglect. An orchard is like anything else, if you don't keep it up it is going to go down, and an orchard is more so that way than anything else, more than any other type of tree. It has to be cultivated if you are going to do anything with it. * * * and another thing, unless you cultivate the orchard properly and take care of it, the suckers will get on there, and if you don't have it sprayed like you ought to, the insects will get into it and kill the trees. It is necessary that the trees be sprayed all the time. "I would not give anything for that orchard at the present time." (The foregoing testimony is wholly without contradiction.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510484/	172 Conn. 19 (1976) STATE OF CONNECTICUT v. CHARLIE SIEMON Supreme Court of Connecticut. Argued October 15, 1976. Decision released November 23, 1976. HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and BARBER, Js. Hubert J. Santos, with whom, on the brief, was F. Mac Buckley, for the appellant (defendant). Robert M. Meyers, assistant state's attorney, with whom, on the brief, was George D. Stoughton, state's attorney, for the appellee (state). The appellant filed a motion for reargument which was denied. PER CURIAM. On a trial to a jury, the defendant was found guilty of deviate sexual intercourse in the first degree and brought the present appeal 20 from the judgment rendered on the verdict. The sole claim pursued on the appeal is that the trial court erred in overruling the defendant's objections to several questions asked of him on cross-examination. The inquiries were addressed to the circumstances of the conduct of the defendant in appearing in front of the home of the victim of the assault two weeks after the incident which gave rise to the charges against him. The questions concerned a matter about which the defendant had testified on direct examination. It is unnecessary to discuss in detail the specific questions asked during this portion of the cross-examination and the rulings of the court, permitting some and excluding others. It suffices to note that as to the specific rulings of the court which the defendant claims were erroneous, no exceptions were taken. "An exception to the ruling must be taken in order to make it a ground of appeal." Practice Book § 226. "This court will not review rulings on evidence where no exception was taken as required by the rule." State v. Hawkins, 162 Conn. 514, 517, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S. Ct. 332, 34 L. Ed. 2d 249. As we noted in the Hawkins case (pp. 517-18), after citing some of the many cases following the rule: "During the course of a trial, objections to rulings on evidence are numerous, and often indiscriminately made and summarily disposed of. An exception, being a protest against a ruling of the court, makes clear that the party unfavorably affected by a ruling is not satisfied and does not acquiesce therein. Thus, the trial court is notified of those rulings which are relied on as grounds for appeal and is given an opportunity for second thought and possible correction at that time or at a later stage in 21 the trial.... We, therefore; view with disfavor the failure of counsel to except properly, whether because of a mistake of law, inattention or design, and thereafter, if the outcome of the trial proves unsatisfactory, to assign such errors as grounds of appeal. `Such methods amount to trial by ambuscade of the judge.' See State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95." There is no error.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510594/	172 Conn. 13 (1976) CITY OF HARTFORD v. HARTFORD ELECTRIC LIGHT COMPANY CONNECTICUT CITIZEN ACTION GROUP ET AL. v. CONNECTICUT LIGHT AND POWER COMPANY ET AL. HARTFORD CONSUMER ACTIVISTS ASSOCIATION ET AL. v. HARTFORD ELECTRIC LIGHT COMPANY ET AL. OFFICE OF CONSUMER COUNSEL v. HARTFORD ELECTRIC LIGHT COMPANY ET AL. OFFICE OF CONSUMER COUNSEL v. CONNECTICUT LIGHT AND POWER COMPANY ET AL. Supreme Court of Connecticut. Argued November 17, 1976. Decision released November 17, 1976. LOISELLE, LONGO, RUBINOW, NARUK and HAMILL, Js. Palmer S. McGee, Jr., and Michael F. Halloran, for the appellants (defendants). Robert S. Golden, Jr., assistant attorney general, for the appellee (defendant Public Utilities Control Authority). Alexander A. Goldfarb, Peter G. Boucher, and Barry S. Zitser, for the appellees (named plaintiff et al.). David Silverstone, for the appellee (plaintiff Office of Consumer Counsel). 14 PER CURIAM. This court has opened, on its own motion, its judgment of October 15, 1976, on the motion of the named defendants for a review of the order of the Court of Common Pleas dated May 25, 1976, terminating a stay of execution of the judgment of that court. We have done so to allow all parties to present their arguments. After considering the arguments, we affirm our decision of October 15, 1976, on the motion to review. The issue before us was a narrow one: Did the trial court abuse its discretion in terminating the stay? On a motion by the defendants for reargument of their motion for a review, we held that the trial court did not abuse its discretion, and we pointed out that neither our decision nor that of the trial court contained any direction concerning the action the public utilities control authority (PUCA) is to take with regard to the 1974 rate application.[1] We stated: "The effect of terminating the stay of execution was to give immediate effect to the trial court's decision sustaining the appeal and holding the 1974 rate schedule invalid, thus preventing 15 the named defendants from charging their customers under that invalidated schedule, pending a review of the trial court's decision." We did not then,[2] and do not now, indicate what rates should be charged. These matters are not properly before this court but, in the present posture of this case, are matters for the PUCA. The merits of the decision of the Court of Common Pleas that the 1974 rates are illegal are not yet before this court. Until we have decided the appeal from that judgment, any inference that our rulings require refunds to users is unfounded and inappropriate. NOTES [1] By the following decision, dated November 12, 1976, we denied the motion by the named defendants for reargument of their previous motion for a review of the order of the trial court dated May 25, 1976, terminating a stay of execution in the appeal from the Court of Common Pleas in Hartford County, which motion for a review was granted and the relief sought therein denied. "PER CURIAM. The motion for reargument represents that the public utilities control authority (PUCA) is interpreting the trial court's decision to mean that the PUCA is under a court mandate to act promptly on the trial court's remand. "Neither the trial court's remand nor its order terminating the stay of execution contains any direction concerning the action the PUCA is to take with regard to the 1974 application. The phrase `for further proceedings in accordance with this opinion' merely summarizes the consequences of the trial court's decision sustaining the appeal, i.e., that, the appeal having been sustained, it is the duty of the administrative agency to proceed according to law. See Bogue v. Zoning Board of Appeals, 165 Conn. 749, 756, 345 A.2d 9. That rescript contains no direction concerning when or how the PUCA is to hold its hearings. Indeed, a remand to the administrative agency with such a directive would be `to impose the judicial will upon an administrative board' and would be invalid. See Watson v. Howard, 138 Conn. 464, 469, 86 A.2d 67; see also Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 37 A. 1080 (administrative functions cannot constitutionally be vested in the courts). "Since the trial court's rescript did not purport to order the PUCA to hold hearings forthwith on the 1974 application, the termination of the stay under Practice Book § 661 did not have the effect of ordering such hearings. The effect of terminating the stay of execution was to give immediate effect to the trial court's decision sustaining the appeal and holding the 1974 rate schedule invalid, thus preventing the named defendants from charging their customers under that invalidated schedule, pending a review of the trial court's decision. "The motion for reargument is denied." [2] In the decision on the motion for reargument.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510489/	160 F.2d 532 (1947) FIRST NAT. BANK OF MOBILE et al. v. UNITED STATES. No. 11757. Circuit Court of Appeals, Fifth Circuit. February 15, 1947. Rehearing Denied March 28, 1947. 533 Chas. C. Hand and Charles B. Arendall, Jr., both of Mobile, Ala., for appellants. Muriel S. Paul, Sewall Key, and A. F. Prescott, Sp. Assts. to the Atty. Gen., Douglas W. McGregor, Asst. Atty. Gen., and Albert J. Tully, U. S. Atty., of Mobile, Ala., for the United States. Before McCORD, WALLER, and LEE, Circuit Judges. WALLER, Circuit Judge. 26 U.S.C.A. Int.Rev.Code, § 3614, contains the following provisions that are pertinent to this case: "§ 3614. Examination of books and witnesses. "(a) To determine liability of the taxpayer. The Commissioner, for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made, is authorized, by any officer or employee of the Bureau of Internal Revenue, including the field service, designated by him for that purpose, to examine any books, papers, records, or memoranda bearing upon the matters required to be included in the return, and may require the attendance of the person rendering the return or of any officer or employee of such person, or the attendance of any other person having knowledge in the premises, and may take his testimony with reference to the matter required by law to be included in such return, with power to administer oaths to such person or persons." (Emphasis added.) Upon petition of an agent of the Commissioner of Internal Revenue, and purportedly in pursuance of the foregoing provision of the statute, the Court below made an order directing John D. Terrell, Vice-President and Cashier of the Bank, to appear before the revenue agent at a day named "then and there to testify in the matter of the tax liability of Gulf Coast Tobacco Company, Joseph Mitchell, Rebecca F. Mitchell, Samuel J. Ripps and Anne M. Ripps, for the years 1940 to 1945, inclusive, and then and there to produce for inspection and examination by the duly authorized agents and employees of the Bureau of Internal Revenue any and all books, papers and records of whatever nature, irrespective of whether such records also pertain to similar transactions with other persons or firms during the said years 1940 to 1945, inclusive, which pertain to or reflect the issuance of cashier's checks, bills of exchange, certificates of deposit, drafts or checks on other banks, in order that said agents of the Bureau of Internal Revenue may select therefrom such items and transactions to and for the firm or to and for any of the individuals hereinabove named as they deem relevant and pertinent to the tax liability of the above named firm and individuals."[1] (Emphasis added.) We think the order is broader than the statute in that it requires the bank to produce for inspection and examination by the revenue agent "any and all books, papers and records of whatever nature, irrespective of whether such records also pertain to similar transactions with other persons or firms during the said years 1940 to 1945, inclusive," whereas the statute authorizes the examination of books, papers, etc., bearing upon the "matters required to be included in the return" and to take testimony of other persons with reference to the "matter required by law to be included in such return, * ". We do not think that the statute is broad enough to require the Bank to produce for inspection and run on its Recordak machine over six million items involving transactions for a period of five years unless the records to be exhibited bear upon the matters required to be included in the return of the parties named in the petition whose tax matters are being investigated. A third party should not be called upon to produce records and give evidence under the statute unless such records and evidence are relevant to, or bear upon, the matter being investigated, which, in this case, was the income tax return of Gulf Coast Tobacco Company, Joseph 534 Mitchell, Rebecca F. Mitchell, Samuel J. Ripps, and Anne M. Ripps. The order appealed from is hereby amended by striking out the following language: "irrespective of whether such records also pertain to similar transactions with other persons or firms during the said years 1940 to 1945, inclusive, which pertain to or reflect the issuance of cashier's checks, bills of exchange, certificates of deposit, drafts or checks on other banks, in order that said agents of the Bureau of Internal Revenue may select therefrom such items and transactions to and for the firm or to and for any of the individuals hereinabove named as they deem relevant and pertinent to the tax liability of the above named firm and individuals." and inserting in lieu thereof the following: "which pertain to or reflect the issuance of cashier's checks, bills of exchange, certificates of deposit, drafts or checks on other banks, during the years 1940 to 1945, inclusive, which bear upon, or have reference to, the federal tax liability of the above-named firm and individuals, and to allow the agents of the Bureau of Internal Revenue of the United States to select from such documents such items and transactions to and for the firm or to and for any of the individuals above named as they deem relevant and pertinent to the tax liability of the above-named firm and individuals." The order of the Court below, as herein modified and amended, is Affirmed. On Petition for Rehearing. Before an agent of the Bureau of Internal Revenue is entitled, under § 3614 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 3614, to have a court require a third party to produce records, the agent must specify with sufficient precision for their identification the documents desired to be inspected. His demands must be within the scope of the statute. He must also allege that such documents "bear upon the matters required to be included in the return" in question. His demands will not be complied with if they are too general, too wanting in specification, as to indicate that they are merely exploratory fishing expeditions. He is not entitled in this case to have the Bank produce all its records merely in order for him to go through them for the purpose of ascertaining whether or not the Bank possesses any records which may or may not be relevant to the tax returns under investigation. He may first obtain information as to what papers or documents are within the Bank's possession relevant to the inquiry by interrogating, under oath, an appropriate officer of the Bank. Upon a satisfactory showing by the agent that certain pertinent records or documents have a bearing upon matters required to be included in the return under investigation, the Bank would be required to produce them for the inspection of the agent, whereupon the agent would determine for himself whether or not they were relevant to his needs and take copies thereof if he so desired. Should the Bank decline to supply documents upon demand by the agent, the Court would compel compliance upon the showing that the documents demanded bear upon matters required to be included in the return of the party under investigation. But it is wholly unreasonable to require a large bank to produce its records, checks, drafts, etc., for a period of six years for an examination by the agent merely in order for him to find out whether or not any of the Bank's records bear upon the questioned returns of certain named parties. The statute gives him only the right to examine books, papers, records, or memoranda that "bear upon the matters required to be included within the return" and does not permit of a fishing expedition into the affairs of all the customers of the bank. The courts will, however, readily require the production of relevant evidence, and will afford the Government the privilege of determining which of such records it desires to use, provided the records sought are shown to be relevant and pertinent to the inquiry at hand. Neither the revenue agent nor the Court has authority under the statute to require the production of memoranda, books, etc., of third parties unless they have a bearing upon the return or returns under investigation. In Martin, Internal Revenue Agent, v. Chandis Securities Co., D. C., 33 F. Supp. 478, 480, the Court, in discussing § 3614, I.R.C., said: 535 "The agents are not the sole judges as to the scope of the examination. "They must satisfy the Court that what they seek may be actually needed. Otherwise, they would be assuming inquisitorial powers beyond the scope of the statute." The foregoing case was affirmed by the 9th Circuit in Martin, Internal Revenue Agent, v. Chandis Securities Co., 128 F.2d 731. The sixth and ninth headnotes of the decision are as follows, respectively: "The rights of an internal revenue agent to require production of papers and records for examination are statutory, and in order to obtain the relief granted by statute, he must bring himself within the terms thereof. 26 U.S.C.A.Int.Rev.Code, §§ 3614 (a), 3615 (a), 3631, 3633." "Under statute providing that no taxpayer shall be subjected to unnecessary examination or investigation, Bureau of Internal Revenue has no power to make an unnecessary examination or investigation of the books of a third person. 26 U.S.C.A. Int.Rev.Code, § 3631." In McDonough v. Lambert, Special Agent, 94 F.2d 838, the First Circuit considered § 3614. Since the first headnote accurately and concisely states the Court's conclusion, we quote it: "The statute authorizing the Commissioner of Internal Revenue for the purpose of ascertaining the correctness of any return, by any officer or employee designated by him, to examine books, papers, records, or memoranda, and require the attendance of the person rendering the return or any officer or employee, is confined to the procurement of evidence bearing upon matters required to be included in a given tax return to determine the correct tax liability of the person who made the return or failed to make one, and does not authorize the procurement of evidence that may be material in verification of the tax return of some other person. Revenue Act 1928, § 618, 26 U.S.C.A. § 1514 [26 U.S.C.A.Int.Rev.Code, § 3614 (a)]." The statute (§ 3631, I.R.C., 26 U.S.C.A. Int.Rev.Code, § 3631) even limits the examination of the taxpayer's books to only such examinations as are necessary. We do not mean that the revenue agent must be able to describe in minute detail every document and paper that he wishes to inspect, but he must be able to describe them with such reasonable particularity[1] that the officers of the Bank will have sufficient information to enable them to produce such records for the inspection of the revenue agent. This Court does not intend to hold that the Bank could not be required to produce records, that have been reasonably designated and identified, of transactions between other persons or firms and the taxpayers whose returns are under investigation. But the Bank cannot be required to produce B's accounts in an investigation of A's tax returns unless it be alleged that B's account, checks, etc., bear upon the correctness of A's return or upon matters that should have been included in A's return. After having thus undertaken to amplify the views expressed in our former opinion, we think that the petition for rehearing should be, and the same is hereby, Denied. 536 McCORD, Circuit Judge (concurring). I concurred in the original opinion, and I now concur in the opinion on rehearing. However, I express this further view: While it is true that the agent may not go on a fishing expedition and examine accounts and transactions in the bank other than those pertinent to the investigation, I think that where accounts are commingled and transactions of other persons appear on the same page or are mixed with those of the person or persons under investigation, view of such records should not be denied to the agent simply because other unrelated accounts and transactions may inescapably appear. Certainly, the agent may not look at and examine the separate, unrelated accounts and transactions of other persons not involved in the investigation at hand, but if the pertinent accounts and transactions and the accounts and transactions of other persons are in fact commingled and mixed, he should be able to examine the records for he, and not the bank, is charged with the duty and responsibility of making the investigation. NOTES [1] For a full statement of the case see the able and exhaustive opinion of the Court below, D.C., 67 F. Supp. 616, 618. [1] The term "reasonable particularity", as used to denote the specificity with which the documents demanded ought to be described, seems to harmonize with expressions used in the same sense in the following cases: Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 542, 55 L. Ed. 771, Ann. Cas.1912D, 558: "suitably specific and properly limited in its scope". Wheeler v. United States, 226 U.S. 478, 33 S. Ct. 158, 162, 57 L. Ed. 309: "[not] to broad as to be objectionable". Brown v. United States, 276 U.S. 134, 48 S. Ct. 288, 290, 72 L. Ed. 500: "It (the subpoena duces tecum) specifies a reasonable period of time, and with reasonable particularity the subjects to which the documents called for relate." Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 380, 50 L. Ed. 652: "The subpoena duces tecum is far too sweeping in its terms to be regarded as reasonable." Newfield v. Ryan, 5 Cir., 91 F.2d 700, 702: "not unduly indefinite". Consolidated Rendering Co. v. State of Vermont, 207 U.S. 541, 28 S. Ct. 178, 182, 52 L. Ed. 327, 12 Ann.Cas. 658: "described with reasonable detail".	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510503/	160 F.2d 388 (1947) SEMI-STEEL CASTING CO. OF ST. LOUIS v. NATIONAL LABOR RELATIONS BOARD. WEBER et al. v. SAME. Nos. 13343, 13344. Circuit Court of Appeals, Eighth Circuit. March 13, 1947. Rehearing Denied April 21, 1947. 389 Joseph T. Davis, of St. Louis, Mo., for petitioner Semi-Steel Casting Co. of St. Louis. John W. Giesecke, of St. Louis, Mo. (Ackert, Giesecke & Waugh, of St. Louis, Mo., on the brief), for petitioners Benjamin Weber, James Ellis and Simon Birk. Charles K. Hackler, Regional Atty., of Clayton, Mo. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Ida Klaus and Robert E. Mullin, Attys., all of Washington, D. C., N.L.R.B., on the brief), for respondent. Before THOMAS, JOHNSEN, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. October 30, 1943, the Semi-Steel Casting Company of St. Louis and the International Molders and Foundry Workers Union of North America, Local No. 59, A. F. L., executed an agreement for a consent election for the certification of a representative of an appropriate bargaining unit among the employees of the company. The agreement was duly approved by the Regional Director of the National Labor Relations Board, and an election pursuant to its terms was held on November 4, 1943. In the election agreement the company and the union agreed upon the employees constituting the unit appropriate for the purposes of collective bargaining and the time and place of the election, provided that the election should be by secret ballot, that it should be conducted under the supervision of the Regional Director of the Board in accordance with the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the rules and regulations and customary procedures and policies of the Board, and that the decision of the Regional Director should be conclusive on any question raised by either party to the election and not covered by the agreement. The company was required to furnish to the Regional Director a list of eligible voters constituting the unit. The company and the union were each granted the right to station an equal number of observers at the polling place to assist in the conduct of the election, to challenge the eligibility of voters, and to verify the result. Objections to the conduct of the election and the determination of the result were to be filed by either party within five days after the closing of the polls. The Regional Director was required to investigate any objections filed, and upon completion of his investigation to issue his finding of the result of the election. At the conclusion of the balloting the agent of the Regional Director in charge of the election and the authorized observers of the union and the company, present at the balloting, certified that the accounting and tabulating of ballots were fairly and accurately done and the secrecy of the balloting maintained; that the number of eligible voters was 129, the number of ballots cast 119, of which two were void; that of the 117 valid ballots cast and counted, 59 were for the union and 58 against it. The same parties also executed a certification on "conduct of the election" in which they affirmed that the balloting was fairly conducted, that all eligible voters were given the opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote. 390 The ballot used in the election was furnished by the Board and was the standard form used in all Board elections. It was a single sheet of paper divided by horizontal lines into three sections. The top section contained in large type the heading: United States of America, National Labor Relations Board, Official Ballot, under which in typewriting was written: "To determine the representative, if any, for the purposes of collective bargaining for certain employees of Semi-Steel Casting Company, St. Louis, Missouri." The middle section contained the following directions to the voters: "1. Mark an X in one square only. "2. Fold your ballot to conceal the X and personally put it in the ballot box. "3. If you spoil your ballot, return it to the Board's Agent and obtain a new one." Across the top of the bottom section of the ballot was printed in large type: "Mark an `X' in the square of your choice." This was followed by the question: "Do you desire to be represented by International Molders and Foundry Workers Union of North America, Local No. 59, AFL?" Immediately below this question were two blank squares. At the top of one the word "Yes" was printed and above the other the word "No." At the bottom of the ballot in large capital letters was the admonition: "This as a secret ballot and must not be signed." Of the two ballots which were rejected and not counted, one had an X marked in both the Yes and No squares. The other had no mark in either square, but the voter, George Flemings, had signed his name opposite the word No appearing over the No square on the ballot. Objections challenging the ruling of the agent of the Regional Director in charge of the election on the validity of the rejected ballots were presented to the Regional Director by the company, were examined by the Director and denied on November 9, 1943, and the union was certified as the duly elected bargaining representative of the employees. The company declined to recognize the union as the bargaining representative of its employees. Upon complaint of the union, proceedings were held before a trial examiner of the Board and before the Board, with the result that on March 14, 1946, the Board adopted the finding of the trial examiner that the company had engaged and was engaging in unfair labor practices within the meaning of section 8(5) and (1) of the Act by refusing to bargain collectively with the union which the Board found had been designated in the consent election as the representative of the company's employees. The Board's order requires the company to cease and desist from its unfair labor practices, to bargain with the union upon request, and to post appropriate notices. Employees of the company opposed to the union were denied the right to intervene in these proceedings. In No. 13,343 we are asked by the company and in No. 13,344 by the employees whose petition to intervene was denied to review and set aside the order of the Board. The Board in its answer asks that its order be enforced. The company does not deny that it refused to bargain with the union following the Board's certification of the union as the representative of the employees for the purpose of collective bargaining. It seeks to justify its refusal on the grounds, (1) that the Regional Director's report of the election shows that the union was not the choice of a majority of the employees voting in the election, and (2) that the union does not now represent a majority of the employees of the designated unit. In support of its petition the company contends: (1) that for the purpose of calculating the majority of votes in the election the Board was required to include all ballots cast whether valid or invalid, since in either case all ballots were cast by eligible voters participating in the election; and (2) that the ballot of George Flemings shows on its face that the voter intended to and did in fact cast his ballot against the union. If either of these contentions is accepted, the union did not receive a majority vote in the election. If both rejected ballots are counted, the total number 391 of votes in the election was 119; if only one, the total is 118. In either case the number of ballots constituting a majority of those cast is 60, whereas only 59 were in favor of the union. If the ballot marked with an X in both the "Yes" and "No" squares is not counted and the ballot cast by George Flemings is counted as a vote against the union, the result is that the votes for and against the union were equal in number, in each case 59, and the union was not the choice of a majority. On the issue raised concerning the rejected ballots, the terms of the consent election agreement may not be ignored. The agreement is in the form customarily used by the Board. Its purpose is to guard against disputes concerning the conduct of elections, to provide for the prompt and final settlement of such controversies as may arise between the parties, and thus to minimize delay in the administration of the Act. Important in the effective use of the election agreement for the purposes stated are the provisions that the election shall be held in accordance with the National Labor Relations Act and with the policies, rules, and regulations of the Board, and that the decision of the Regional Director concerning questions not covered by the agreement shall be conclusive on the parties. On review the Board accepts the Regional Director's decision on all questions pertaining to the election, unless shown to be arbitrary or capricious or not in conformity with the policies of the Board and the requirements of the Act. No reason appears why the company should not be bound by the provisions of the election agreement to which it is a party. "To hold otherwise would permit an employer deliberately to ignore binding commitments embodied in a consent agreement; would open the door to subterfuges for hampering and delaying a final determination of a bargaining representative; and would tend to defeat, rather than to effectuate, the policies of the Act." Matter of Capitol Greyhound Lines, 49 N.L.R.B. 156, 159, enforced Sixth Circuit, 140 F.2d 754, 758, certiorari denied 322 U.S. 763, 64 S. Ct. 1285, 88 L. Ed. 1590. In this case the Board concluded that the company was bound by its agreement to accept the decision of the Regional Director on the issue raised with respect to the rejected ballots. It also concluded that the ruling of the Regional Director was in conformity with the policy of the Board adopted in the administration of the Act. Unless it can be said that the rules and regulations of the Board are contrary to the Act, its decision must stand. The Board asserts that in determining the result of an election held for the selection of a bargaining representative it has uniformly followed the practice of calculating election results on the basis of the number of valid votes cast, citing Matter of Sorg Paper Co., 9 N.L.R.B. 136, 137; Matter of American Tobacco Co., Inc., 10 N.L.R.B. 1171, 1172. It followed its established policy in this case. We are unable to say that the Board's practice in this respect is not within the discretion vested in the Board by the Act. Whether the result of an election of a bargaining representative should be determined on the basis of the valid ballots or on the basis of all ballots cast at the election by eligible voters is, in the absence of a contrary provision in the Act, a question appropriate for decision by the Board whose special duty it is to administer the Act. The question is one of statutory interpretation on which the decision of the Board is to be accorded great weight. N.L.R.B. v. Hofmann, 3 Cir., 147 F.2d 679, 681, 682, 157 A.L.R. 1149; N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 131, 132, 64 S. Ct. 851, 88 L. Ed. 1170; Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 681, 64 S. Ct. 830, 88 L. Ed. 1007. It is also a question of Federal and not of local law. N.L.R.B. v. Hearst Publications, Inc., supra, 322 U.S. 111, pages 123, 124, 64 S. Ct. 851, 88 L. Ed. 1170. In determining the question of employee representation the Board under section 9(c) of the Act "may take a secret ballot of employees, or utilize any other suitable method". Since the section of the Act authorizing an election is silent as to procedure, the manner in which an election is to be conducted and the rules and regulations for the conduct of the election and necessary to assure finality in the result of the election are within the competence of the Board to 392 provide, subject to the principles of majority rule and secrecy of the ballot which the Act enjoins. Southern Steamship Co. v. N.L.R.B., 316 U.S. 31, 37, 62 S. Ct. 886, 86 L. Ed. 1246; N.L.R.B. v. Waterman Steamship Corp., 309 U.S. 206, 226, 60 S. Ct. 493, 84 L. Ed. 704; N.L.R.B. v. Falk Corp., 308 U.S. 453, 458, 60 S. Ct. 307, 84 L. Ed. 396. "The principle of majority rule, however, does not foreclose practical adjustments designed to protect the election machinery from the ever-present dangers of abuse and fraud. * * * It is true that it is an unfair labor practice for an employer to refuse to bargain with a union only if that union was chosen by a majority of the voting employees. But the determination of whether a majority in fact voted for the union must be made in accordance with such formal rules of procedure as the Board may find necessary to adopt in the sound exercise of its discretion." N.L.R.B. v. A. J. Tower Co., 67 S. Ct. 324, 328. It is apparent, as the Board asserts, that if the choice of a voter cannot be definitely and certainly ascertained from his ballot he has in fact expressed no actual choice in the election, his ballot cannot be reasonably classified as either an affirmative or a negative vote, and for these reasons the voter has contributed nothing to the result of the election. The Board's practice in determining the result of an election on the basis of the number of valid votes cast cannot be said to prejudice the rights of either party to the election. On the other hand, it seems reasonably designed to secure certainty and finality in elections and to determine the identity of the bargaining representative upon the free choice of the employees actually and clearly expressed at the polls. It is not unreasonable to say that the employee whose vote was marked both for and against the union did not in fact participate in the election. So far as can be ascertained from his ballot, he attended the polls merely to express his indifference to the result. His action contributed no more and no less to the determination of the choice of the majority of the employees than did the action of those eligible employees who did not vote. Concerning Flemings' ballot, it is sufficient to say that his signature upon the ballot violated the express rules for secrecy under which the election was conducted and which were assented to by the company in the election agreement. Whether Flemings intended to vote for or against the union, it is impossible to say from an inspection of his ballot. To permit him to testify as to his intention in marking the ballot as he did would, as the Board asserts, effectively destroy the secrecy of the ballot which the Board's policy is designed to protect and which the Act commands. The reception of such evidence would also expose the employee to the hazard of union or employer coercion and thus imperil his freedom of choice of a bargaining representative. "To permit the counting of ballots which, regardless of specific instructions appearing thereon, nevertheless are signed or contain markings clearly identifying the voter, clearly would open the door to the exertion of influence such as to prevent the exercise of the voter's free choice." Matter of Burlington Mills, 56 N.L.R.B. 365, 368. The company argues that the order to bargain collectively with the union should not be enforced by this court because of the probable loss of the union's majority status as the result of an asserted turnover in personnel during the time which elapsed between the date of the election and the date of the Board's order. The election was held November 4, 1943, and the Board's order requiring the company to bargain with the union which it determined had received the majority vote at the election came down March 14, 1946. The evidence adduced by the company did not establish the fact, but only the probability of the loss of the union's majority status. But the union's loss of majority status, during the course of the proceedings before the Board on the charge of unfair labor practices against the company, if established, does not invalidate the order of the Board. The Board found that "any loss in the Union's majority status is attributable to the respondent's unlawful refusal to bargain." That the company did refuse to bargain with the union is admitted, and we hold that its refusal on the 393 facts in this case was unlawful. It was therefore guilty of the unfair labor practice with which it was charged at the institution of these proceedings. In National Licorice Co. v. N.L.R.B., 309 U.S. 350, 362, 60 S. Ct. 569, 84 L. Ed. 799, the court said that the fact that a majority of employees had freely rejected their union designation did not militate against a finding by the Board that the union represented the employees when the employer refused to bargain. In Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 64 S. Ct. 817, 88 L. Ed. 1020, it is held that the Board has power to order an employer to bargain with a union which has lost its majority status after petitioner wrongfully refused to bargain with it. "It is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged." International Association of Machinists v. N.L.R.B., 311 U.S. 72, 82, 61 S. Ct. 83, 89, 85 L. Ed. 50; Medo Photo Supply Corp. v. N.L.R.B., supra, 321 U.S. p. 687, 64 S. Ct. 830, 88 L. Ed. 1007. Since this was an unfair labor practice proceeding against the company under section 10 of the Act, it is clear that the Board committed no error in refusing to permit employees opposed to the union to intervene. Section 10(b) provides the manner in which issue shall be joined in such proceedings. The Board is required to serve upon the person charged with engaging in an unfair labor practice a complaint stating the charges in that respect. The person charged is permitted to answer the complaint and to give testimony at the hearing of which the Board is required to give him notice of the time and place. "In the discretion of the member, agent or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony." The courts have uniformly held that in a proceeding under this section of the Act against an employer on the charge of unfair labor practices the employees are not necessary parties. Thus in N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, 58 S. Ct. 571, 576, 82 L. Ed. 831, 115 A.L.R. 307, the Board in an unfair labor practice proceeding ordered the employer to discontinue recognition of an association of its employees as the bargaining agent for its employees. It was contended that the association was a necessary party to the proceeding on the ground that its interests were involved. The court said: "As the order did not run against the Association it is not entitled to notice and hearing. Its presence was not necessary in order to enable the Board to determine whether respondents had violated the statute or to make an appropriate order against them." The order of the Board in this case is directed only against the company. The Board's power is effectively exercised upon no one else. The employees were not necessary parties to the proceeding, and there was no abuse of the Board's discretion in refusing to make them parties. National Licorice Co. v. N.L.R.B., supra, pages 362, 366 of 309 U.S., 60 S. Ct. 569, 84 L. Ed. 799; Oughton v. N.L.R.B., 3 Cir., 118 F.2d 486, 495, 496. Insofar as intervention was sought by the employees for the purpose of making the same defense as that made by the company, they were not only not necessary parties, but their presence could only serve to hinder and delay the prompt decision of the controversy. They make no showing that they could have adduced evidence other than that offered by the company. There is no merit in the claim that they were entitled as of right to have an observer at the election as a special representative of those employees who were opposed to the union. Whether either the company or the union or the employees opposed to the union are represented at the polls by observers is a matter exclusively within the discretion of the Board. None of the intervening employees requested representation by observers before the election. They had the same notice of the election as other employees and the same opportunity to vote. Nothing in the petition for leave to intervene or in the answer tendered with it tends to show that the Board's agents failed in their duty to conduct a fair election, or that the complaining employees were prejudiced by lack of representation, or that the election did not result in the choice of a bargaining 394 representative by the majority of those employees in the union who availed themselves of the privilege of attending the election and casting their ballots. In Nos. 13,343 and 13,344 the petitions for review and reversal of the Board's order are denied. The petition of the Board for enforcement of its order is granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510492/	171 Conn. 705 (1976) ARTHUR I. LAWRENCE, JR. v. EDWARD KOZLOWSKI, COMMISSIONER OF MOTOR VEHICLES Supreme Court of Connecticut. Argued June 3, 1976. Decision released September 28, 1976. HOUSE, C. J., COTTER, LOISELLE, BOGDANSKI and BARBER, JS. 706 Francis X. Dineen, with whom was Joanne S. Faulkner, for the appellant (plaintiff). Cornelius F. Tuohy, assistant attorney general, with whom, on the brief, was Carl R. Ajello, attorney general, for the appellee (defendant). COTTER, J. The defendant commissioner, after a hearing pursuant to § 14-111 of the General Statutes, found that the plaintiff had caused or contributed to the death of Joseph Mortali, Sr., and ordered that the plaintiff's driver's license be suspended for a period of not less than one year. From a judgment rendered by the Court of Common Pleas dismissing the appeal the plaintiff appealed to this court, claiming error in the commissioner's ultimate conclusions, in his reliance on inadmissible evidence and in certain procedures followed by him with respect to the suspension hearing. I The plaintiff claims, inter alia, that the commissioner acted erroneously in violation of General Statutes § 14-111 (c). Pursuant to General Statutes 707 § 14-111 (c)[1] the commissioner may suspend the license of an operator who is involved in a fatal motor vehicle accident only if the facts, as determined by the commissioner after a hearing, indicate the operator's responsibility for the accident, and only if the commissioner finds that the operator caused or contributed to the death through negligence, carelessness, or violation of chapters 246 or 248 of the General Statutes. Judicial review of the commissioner's actions is governed by the Uniform Administrative Procedure Act[2] (hereinafter the UAPA), and the scope of that review is very restricted. As we stated in DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840, "It is not the function of this court nor was it the function of the Court of Common Pleas to retry the case or substitute our 708 or its judgment for that of the defendant. Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520; see General Statutes § 4-183 (g). `The commissioner's function is that of an administrative agency, although he acts in a quasi-judicial capacity. To render a decision, he must weigh evidence and reach conclusions.' [Citations omitted.] The conclusion reached by the defendant must be upheld if it is legally supported by the evidence. [Citations omitted.] The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence printed in the appendices to the briefs which reasonably supports the decision of the commissioner, we cannot disturb the conclusion reached by him. Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 49, 327 A.2d 588." See Paul Bailey's, Inc. v. Kozlowski, 167 Conn. 493, 496-97, 356 A.2d 114. The crucial factual issue in the present case was whether the plaintiff had maintained a proper lookout. The commissioner's conclusion that he was negligent in this regard was based on testimony and exhibits which were presented at a departmental hearing and which disclosed the following facts: At approximately 7:30 p.m. on September 7, 1971, the plaintiff was operating his 709 pickup truck in an easterly direction on Columbus Avenue in New Haven. It was dusk; the weather was clear; the road was level, straight and dry; and there were no visible obstructions. His truck was in excellent mechanical condition, and even though streetlights were not lighted he had turned on his headlights. Near the intersection of Liberty Street, Joseph Mortali, Sr., aged 87, was crossing Columbus Avenue from north to south. The plaintiff testified that he was driving at a speed of 20 to 25 miles per hour when he saw Mortali, who was wearing dark clothing and was "slumped down, looking down to the ground"; that as soon as he saw Mortali, he applied his brakes, but skidded "and struck him all in one instant. I had no chance to avoid turning right or left." Mortali was struck by the left front part of the plaintiff's truck, and the police officer investigating the accident testified that he found the plaintiff's truck stopped in the crosswalk, adding that he saw skidmarks about 55 feet in length. Mortali died several hours later as a result of injuries sustained in the accident. It is apparent that these facts could support the commissioner's conclusion of failure to keep a proper lookout, and such a determination of negligence, depending as it must on the circumstances of each case, would not constitute error as a matter of law. See, e.g., Pinto v. Spigner, 163 Conn. 191, 195, 302 A.2d 266; Cappiello v. Haselman, 154 Conn. 490, 496-97, 227 A.2d 79; Palombizio v. Murphy, 146 Conn. 352, 357, 150 A.2d 825; cf. DiBenedetto v. Commissioner of Motor Vehicles, supra. However, as urged by the plaintiff, we must consider whether the commissioner's determinations were tainted by evidentiary or procedural error. 710 II The plaintiff claims that the commissioner's decision was based on legally incompetent evidence which was received over objection at the departmental suspension hearing held on August 29, 1972, in Wethersfield. The challenged exhibits are a court abstract containing the plaintiff's plea of nolo contendere to a charge of negligent homicide and the judgment of guilty rendered thereon; an accident report submitted to the commissioner by the investigating officer which stated in part that the plaintiff had been arrested in connection with the accident; and the coroner's report, in which he made findings of fact and concluded that the plaintiff had been responsible for Mortali's death through his failure to keep a proper lookout. It is fundamental that administrative tribunals are not strictly bound by the rules of evidence and that they may consider exhibits which would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative. Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 570, 345 A.2d 520; International Brotherhood v. Commission on Civil Rights, 140 Conn. 537, 546, 102 A.2d 366; Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 536, 102 A.2d 316; 2 Am. Jur. 2d, Administrative Law, §§ 377, 382. Under former § 4-178 (1) of the General Statutes,[3] rules of evidence applied to nonjury cases shall 711 be followed, "[i]rrelevant, immaterial, or unduly repetitious evidence shall be excluded" and "[w]hen necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is a type commonly relied upon by reasonably prudent men in the conduct of their affairs." Cf. Bernstein v. Real Estate Commission, 221 Md. 221, 156 A.2d 657, appeal dismissed, 363 U.S. 419, 80 S. Ct. 1257, 4 L. Ed. 2d 1515, rehearing denied, 364 U.S. 855, 81 S. Ct. 35, 5 L. Ed. 2d 79; 2 Am. Jur. 2d, Administrative Law, § 381. It is clear that in a judicial proceeding the plaintiff's nolo contendere plea and arrest would be inadmissible.[4] Furthermore, despite the broad latitude 712 given the commissioner with respect to the admission of evidence, we are also of the opinion that the nolo contendere plea should have been excluded from the administrative hearing as well, not only because it was of marginal probative value, but also because such pleas are often entered with the expectation that they will not be used against an accused in subsequent proceedings. See McCormick, Evidence (2d Ed.) § 265. Similarly, the fact of arrest is of limited or no probative force and should not be relied upon by the commissioner in his deliberations even though he is required by statute to be informed of such "enforcement action taken." General Statutes § 14-108a (b). Finally, the conclusions of the coroner, although they must be forwarded to the commissioner 713 pursuant to statute,[5] are merely his individual opinions and in no way bind the commissioner to the same result. Nonetheless, our scope of review is statutorily circumscribed, and we may reverse or modify an agency order on the basis of an erroneous evidentiary ruling only if "substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." General Statutes § 4-183 (g) (5). This so-called substantial evidence rule is similar to the "sufficiency of the evidence" standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords "a substantial basis of fact from which the fact in issue can be reasonably inferred.... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 299-300, 59 S. Ct. 501, 83 L. Ed. 660; see Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842; Consolo v. Federal Maritime Commission, 383 U.S. 607, 618-21, 86 S. Ct. 1018, 16 L. Ed. 2d 131; see also McCormick, Evidence (2d Ed.) § 352. "The `substantial evidence' rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. 714 It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration.... [Kopec v. Buffalo Brake BeamAcme Steel & Malleable Iron Works, 304 N.Y. 65, 106 N.E.2d 12.] The `substantial evidence' rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... [Board of Firemen's Relief & Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424], and to provide a more restrictive standard of review than standards embodying review of `weight of the evidence' or `clearly erroneous' action.... [Manlowe Transfer & Distributing Co. v. Department of Public Service, 18 Wash. 2d 754, 140 P.2d 287.]" 2 Am. Jur. 2d, Administrative Law, § 621, p. 469; see also §§ 688-690; 73 C.J.S., Public Administrative Bodies and Procedure, § 223. Under this test, "the mere erroneous admission... of evidence will not invalidate an order of the commission. Substantial prejudice must be affirmatively shown." Damariscotta-Newcastle Water Co. v. Damariscotta-Newcastle Water Co., 134 Me. 349, 186 A. 799; see Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, supra, 568; see also Sisto v. Civil Aeronautics Board, 179 F.2d 47, 51-52 (D.C. Cir.); Whitfield v. Simpson, 312 F. Sup. 889, 895 (E.D. Ill.). From our review of the record in the present case, we cannot say that the plaintiff has met this burden. Even if the challenged documents had been 715 excluded, the commissioner's conclusion was supported from other substantial evidence such as the testimony and the unchallenged exhibits, which disclosed that the plaintiff was driving in an easterly direction, and the decedent was walking in a southerly direction across the street when he was struck by the left front of the plaintiff's truck. The plaintiff also testified that he struck the decedent almost instantaneously, and the police officer testified that he observed skid marks some 55 feet in length at the scene of the accident. In view of this evidence, much of which was provided by the plaintiff himself and the accuracy of which is not contested, we cannot say that the commissioner improperly relied on the arrest and the nolo contendere plea in his determination that the plaintiff negligently failed to keep a proper lookout, nor does the record disclose any improper reliance upon the challenged exhibits.[6] Accordingly, we find that the evidence was substantial enough to support the commissioner's conclusions 716 and the plaintiff has not sustained his burden of proving that he was prejudiced by the commissioner's reliance upon improper evidence.[7]Reconstruction Finance Corporation v. Bankers Trust Co., 318 U.S. 163, 170, 63 S. Ct. 515, 87 L. Ed. 680. III The plaintiff also contends that he was denied the right to present evidence and to cross-examine witnesses by the commissioner's failure to subpoena the coroner; to subpoena three eyewitnesses; and to change the location of the hearing from Wethersfield to New Haven, on the ground that these actions violated not only the UAPA but also the due process guarantees of the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.[8] 717 A Prior to the August 29, 1972, suspension hearing, the plaintiff's counsel wrote the commissioner, requesting that the coroner be subpoenaed so that counsel might cross-examine him with respect to his report, which concluded that the plaintiff had been responsible for the decedent's death. The commissioner, by return letter, denied the request, explaining that the department "will only subpoena the Investigating Officer. Any other witness that you desire will have to be furnished by you or your client." The plaintiff challenges this decision on the ground that the coroner's conclusions were only an opinion which should have been subject to cross-examination at the administrative hearing. We cannot agree. To assess this claim properly, a preliminary discussion of the coroner's report becomes necessary. Under General Statutes § 14-109,[9] the coroner "shall 718 make a finding showing the causes of, and responsibility for, each fatal accident within his jurisdiction in which a motor vehicle is involved" and shall transmit a certified copy thereof to the commissioner. The coroner in the instant case complied with the statute, and made findings of fact from testimony of the plaintiff, the investigating officer and three eyewitnesses. The report also contained evidence of the decedent's medical injuries, and concluded that the plaintiff was responsible for the fatality by failing to keep a proper lookout. The coroner's report, although admittedly hearsay, is admissible, however, under General Statutes § 6-65 as a "public record" and the findings of fact contained therein are also properly admissible as competent evidence under the "public records" exception to the hearsay rule. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 10, 273 A.2d 709, cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218; see General Statutes § 1-19.[10] 719 The coroner's factual findings, which are fully admissible under this exception to the hearsay rule, must be distinguished from his conclusions with respect to legal responsibility, which are admissible only as an expression of his opinion and cannot be regarded by the commissioner as ultimately dispositive on that issue. The coroner's findings of fact and conclusions are designed to aid the commissioner's decision, but they cannot be a substitute for the independent determination required under General Statutes § 14-111 (c). See Branford Trust Co. v. Prudential Ins. Co., 102 Conn. 481, 487-88, 129 A. 379. In the instant case we are satisfied from our review of the evidence produced at the motor vehicle department hearing that the coroner's report was not improperly used by the commissioner. Nor does the fact that the commissioner reached the same conclusion as the coroner indicate an improper delegation of the commissioner's authority. The facts are not disputed. Thus it is not surprising that the coroner and the commissioner could, after conducting their respective independent hearings, arrive at the same conclusion with respect to the plaintiff's negligence. The coroner's conclusions may often, as a practical matter, be echoed by the commissioner, but that result is due more to the nature of the facts and circumstances of a given case than to an improper reliance upon the coroner's opinion, which the commissioner is free to disregard if he so chooses. Accordingly, we must conclude that the report was properly admitted into evidence at the departmental hearing. The question of whether the conclusions of an investigator with respect to the cause of death or 720 negligence should be admissible at all has been widely debated, and has resulted in a division of authority among the states. 4 Wigmore, Evidence (Chadbourn Rev.) § 1671, with Connecticut opting for admissibility of such conclusions. Blados v. Blados, 151 Conn. 391, 397, 198 A.2d 213.[11] According to McCormick, the argument in favor of allowing such conclusions to be admitted stems from the fact that the investigator is usually skilled in the particular field and that his conclusions are reliable as a result. Nonetheless, the report and its conclusions are still to be regarded as not dispositive of the issue but merely as "laying the foundation for future official action which is likely to stimulate the same habitual accuracy in reporting facts known that underlies the exception for official records generally." McCormick, Evidence (2d Ed.) § 317 (c), p. 738. We must have in mind, however, that this rule is itself an abridgement of the right to cross-examine the author of a report, and that it stems from the need for weighing or balancing the reliability of a report which must be prepared by a skilled public official with the countervailing need to subject these officials to cross-examination. "The necessity for the existence of such an exception [to the hearsay rule] is found `in the practically unendurable 721 inconvenience of summoning public officers from their posts on the innumerable occasions when their official doings or records are to be proved in litigation'; and the general trustworthiness of such evidence is found in the circumstances under which the statements are made." State v. Torello, supra, 516-17; see 4 Wigmore, op. cit. § 1631. Of course, opinions and conclusions as to cause and effect which are based on factual findings would not be admissible if denial of the right of cross-examination would result in the perversion of this rule of trustworthiness and reliability. Gilbert v. Gulf Oil Corporation, 175 F.2d 705, 710 (4th Cir.); Franklin v. Skelly Oil Co., 141 F.2d 568, 572 (10th Cir.); Kansas City Life Ins. Co. v. Meador, 186 Okla. 397, 98 P.2d 20. However, no such deprivation of the right to cross-examination would result from the admission of the coroner's conclusions in the instant case. The coroner, even if he testified at the motor vehicle department hearing, could provide no direct testimony as to the facts of the accident; he probably could describe only the inquest proceedings and possibly testify as to what facts he found persuasive in reaching his conclusion. We cannot conclude under the circumstances that the right of cross-examination is compelled by either the UAPA or the constitutional requirements of due process. As noted previously, the commissioner, in considering the coroner's report, does not act as an appellate court in the sense that he must accept the coroner's conclusions if they are supported by the factual findings. Nor is the coroner's report "expert testimony" which can be properly evaluated 722 only through cross-examination. The coroner is, instead, another investigator who, like the commissioner, must hear and weigh evidence and make his conclusions therefrom. The plaintiff has an equal opportunity to appear before both the coroner and the commissioner, to establish facts, and to argue that he was not responsible for the fatality and that the coroner's conclusions were based on irrelevant or immaterial facts. A conclusion of negligence by the coroner in no way binds the commissioner, and the plaintiff is free to challenge the coroner's conclusions through the presentation of evidence from which the commissioner may draw an opposite conclusion. The coroner and the commissioner often hear the same facts and arrive at the same result, especially in a case such as the instant one in which the plaintiff has conceded that his "appeal does not depend on questions of credibility of witnesses, or on the weight of evidence. There is no conflicting or inconsistent evidence, and both parties are in agreement as to the facts." Accordingly, we cannot say that the procedure by which the commissioner acts is constitutionally or statutorily infirm because under the circumstances of this case the coroner's conclusions may be admitted into evidence and considered as an expression of his opinion without the right of cross-examination. See Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-26, 86 S. Ct. 1018, 16 L. Ed. 2d 131; Hing Wan Wong v. Liquor Control Commission, supra. B We find no error in the plaintiff's remaining contentions that the commissioner erred in declining to subpoena three so-called eyewitnesses and in 723 refusing to change the venue of the hearing from Wethersfield to New Haven in order to allow these witnesses to appear voluntarily.[12] In reviewing these claims, we note that the plaintiff's counsel requested the commissioner to subpoena only the coroner, not the three eyewitnesses. Even though this omission might bar the plaintiff from raising the issue on appeal, we are satisfied that the procedure followed in the instant case contravened neither the UAPA nor the plaintiff's constitutional rights. The UAPA contemplates that the hearing process will be informal, and there is no requirement that every witness must physically testify, as in a full-blown trial. In the instant case, the evidence which the eyewitnesses would have presented in person was placed before the commissioner through documents and questions by the plaintiff's counsel. The coroner's report contained an excerpt of their testimony, and the plaintiff's counsel had the plaintiff read portions of their testimony into the record at the inquest. Consequently, we cannot say that the plaintiff was deprived of any constitutional or statutory rights. It would have been preferable had the commissioner subpoenaed the witnesses of his own accord, but *724 their testimony was presented to the commissioner in a manner sufficient to allow him to make a proper determination of the facts. Nor was there error in the commissioner's refusal to hold the hearing in New Haven, which he is authorized to do under General Statutes § 14-111 (e). As observed earlier, the witnesses' testimony was available to the commissioner through means other than direct testimony, and thus we cannot say that the decision was erroneous or that the plaintiff's constitutional rights were violated. See Raper v. Lucey, 488 F.2d 748, 754 (1st Cir.); cf. Andrews v. Norton, 385 F. Sup. 672 (D. Conn.), aff'd sub nom. Andrews v. Maher, 525 F.2d 113 (2d Cir.). There is no error. In this opinion the other judges concurred. NOTES [1] General Statutes § 14-111 (c) reads as follows: "SUSPENSION OF LICENSE AFTER FATAL ACCIDENT. The commissioner shall not suspend the license of any operator concerned in any motor vehicle accident resulting in the death of any person solely because such death has occurred, unless the facts as ascertained by the commissioner, after a hearing, indicate responsibility on the part of such operator for such accident, and, if, after such hearing, the commissioner finds that such operator has caused or contributed to such death through the violation of any provision of this chapter or of chapter 248 or through negligence or carelessness, such suspension shall be for not less than one year. A motor vehicle parked in a manner permitted by law shall not be deemed to be concerned in such accident." [2] The Uniform Administrative Procedure Act (General Statutes c. 54, §§ 4-166 through 4-189) provides uniform standards for judging all nonexempted agency actions, including suspension of drivers' licenses by the motor vehicle department. Hickey v. Commissioner of Motor Vehicles, 170 Conn. 136, 144, 145 n.2, 365 A.2d 403; see also McDermott v. Commissioner of Children and Youth Services, 168 Conn. 435, 439, 363 A.2d 103; Murphy v. Berlin Board of Education, 167 Conn. 368, 374, 355 A.2d 265. The standards for judicial review under the UAPA are set out in General Statutes § 4-183, subsection (g) of which reads as follows: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." [3] Former § 4-178 (1) of the General Statutes (1971 Public Acts, No. 854, § 13) which governs the admissibility of evidence in the instant case, was amended by 1973 Public Acts, No. 620, § 11, and the amended section governs the admissibility of evidence in contested cases arising on and after June 11, 1973. 1973 Public Acts, No. 620, § 19. This amendment deleted the language cited in the text, and thus the amended statute is, if anything, more liberal than its predecessor, as the substitute language provides that "[a]ny oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence." [4] A plea of nolo contendere is distinct from a plea of guilty inasmuch as the latter may be regarded as a verbal admission by the accused, and, as such, may be admissible in subsequent civil proceedings. It does not, however, conclusively establish negligence, and the accused is not precluded from explaining his plea. Flynn v. Raccuia, 146 Conn. 210, 212-13, 148 A.2d 763; Dumond v. Denehy, 145 Conn. 88, 89, 139 A.2d 58; Moulin v. Bergeron, 135 Conn. 443, 445, 65 A.2d 478. By contrast, a plea of nolo contendere is merely a declaration by the accused that he will not contest the charge, and "even though followed by a finding of guilty and the imposition of a fine or other penalty, is not admissible, either as a verbal admission or an admission by conduct." Casalo v. Claro, 147 Conn. 625, 632, 165 A.2d 153. Nor is it admissible to affect a party's credibility, as evidence of an arrest, or as res judicata establishing that the plaintiff was engaged in a criminal act. Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 713, 8 A.2d 5; see also Holden & Daly, Connecticut Evidence, § 103f. Pleas of nolo contendere may be entered "for reasons of convenience and without much regard to guilt and collateral consequences." McCormick, Evidence (2d Ed.) § 265, p. 636. Even though the plea may be regarded as a tacit admission, its inconclusive and ambiguous nature dictates that it should be given no currency beyond the particular case in which it was entered. A. B. Dick Co. v. Marr, 95 F. Sup. 83, 101 (S.D. N.Y.); State v. Thrower, 272 Ala. 344, 346, 131 So. 2d 420; Federal Deposit Ins. Corporation v. Cloonan, 165 Kan. 68, 90, 193 P.2d 656; State v. Fitzgerald, 140 Me. 314, 318, 37 A.2d 799; State v. LaRose, 71 N.H. 435, 439, 52 A. 943; Honaker v. Howe, 60 Va. (19 Gratt.) 50, 53; see 4 Wigmore (3d Ed.) § 1066; annot., 18 A.L.R. 2d 1287, 1314 § 5; annot., 152 A.L.R. 253; Fed. R. Crim. Procedure 11 (e) (6). Similarly, the portion of the police accident report containing the statement that the plaintiff had been arrested would not be admissible in a civil court proceeding. As Wigmore observed, "a mere arrest or indictment will not be allowed to be inquired after; since the fact of arrest or indictment is quite consistent with innocence, and since the reception of such evidence is merely the reception of somebody's hearsay assertion as to the witness' guilt. To admit this would involve a violation both of the hearsay rule and of the rule forbidding extrinsic testimony of misconduct." 3A Wigmore, Evidence (Chadbourn Rev.) § 980a, p. 835; see Hayward v. Maroney, 86 Conn. 261, 262, 85 A. 379; accord, 2 Wharton, Criminal Evidence (13th Ed. Torcia) § 477; annot., 20 A.L.R. 2d 1421. [5] See General Statutes § 14-109. Issues raised by the introduction into evidence of the coroner's report will be discussed infra, part III A. [6] The plaintiff argues that the commissioner relied upon these exhibits because the certification of the record, which lists all the exhibits introduced at the hearing, states that "said documents constitute the record upon which his decision was based." This is an inadequate basis for a finding of prejudicial reliance, however, because the unchallenged testimony and exhibits form an adequate basis for the commissioner's decision. Additionally, the record in Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 345 A.2d 520, contained an identical statement, and we rejected a similar challenge to the admission of prior statutory violations because "[t]he record does not indicate that the commissioner considered as evidence of guilt the plaintiff's prior violations." Id., 568. "A court will not reject an agency finding that is supported by substantial evidence merely because the agency also incidentally mentions incompetent or irrelevant material.... Likewise, the possibility of prejudice from the admission of incompetent evidence may be dispelled by showing that the matter involved was not relied on." Braniff Airways, Inc. v. Civil Aeronautics Board, 379 F.2d 453, 466 (D.C. Cir.). [7] Even if we were of the opinion that the admission of evidence was prejudicial, we would be precluded from granting a new hearing by General Statutes § 4-185a, which states that "no decision or order by an agency in a contested case ... shall be held invalid or deemed ineffective solely because of the agency's failure to comply with any requirement of sections 4-167, 4-168, 4-177 or 4-178 [of the General Statutes]. This provision shall apply to all agency actions taken between January 1, 1972, and the effective date of this act," i.e., June 11, 1973. The reason for this validating act is to provide additional time to agencies to adopt rules of practice and other necessary regulations and to conduct hearings in contested cases in accordance with the UAPA. See Connecticut State Employess Assn., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 334 A.2d 909. [8] That a state's driver's license revocation proceedings must comport with due process standards was established in Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90; cf. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287; Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773, 82 L. Ed. 1129. The rights to present evidence and to cross-examine witnesses in contested cases are also guaranteed by General Statutes §§ 4-177 (c) and 4-178 (3) respectively. It should be noted that these rights were not created de novo by the UAPA but predated its enactment. As this court noted in Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 569, 345 A.2d 520, "the conduct of the [motor vehicle] hearing shall not violate the fundamentals of natural justice. That is, there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the commissioner is to act." See Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 47, 327 A.2d 588. [9] "[General Statutes] Sec. 14-109. CORONER TO INVESTIGATE FATAL MOTOR VEHICLE ACCIDENTS. Each coroner shall make a finding showing the causes of, and responsibility for, each fatal accident within his jurisdiction in which a motor vehicle is involved and shall, within a reasonable time transmit a certified copy of his finding, without charge, to the commissioner. If such copy is not so transmitted within ten days, such coroner shall send to said commissioner a report containing such facts as he has been able to ascertain concerning such accident, and thereupon, or if such coroner fails to file such report, said commissioner may, in his discretion, restore the license of any operator involved in such accident, which license was suspended in accordance with the provisions of subsection (c) of section 14-111." Although the coroner in the instant case failed to submit a certified copy of his report, that defect is not fatal to the exhibit's admissibility, as the plaintiff argues, because this objection was not raised at the hearing, as required by General Statutes § 4-178 (1). Thus, the claim is not amenable to appellate review. Even if we were to consider the claim as properly before us, however, the absence of certification need not invalidate an otherwise properly admissible document. See Hickey v. Commissioner of Motor Vehicles, 170 Conn. 136, 141, 365 A.2d 403. [10] The "public records" exception to the hearsay rule is "based upon the fact that the report of the public official can be relied upon for its trustworthiness. The public official may act only occasionally, but when he does act he knows and feels that he is acting under the sanction of his official place. Experience has led to the conclusion that it is ordinarily safe to rely upon the trustworthiness of a report made under such circumstances." Ezzo v. Geremiah, 107 Conn. 670, 680, 142 A. 461; see State v. Torello, 103 Conn. 511, 131 A. 429. [11] In Blados v. Blados, 151 Conn. 391, 397, 198 A.2d 213, a death certificate delivered to the coroner contained the statement by the medical examiner that the decedent "apparently fell from the rear stairs striking his head" and that he had a fracture of the skull. A majority of the court held that document admissible on the ground that it was the official statutory duty of the medical examiner to incorporate his opinion into the death certificate. See General Statutes § 19-536, in which the medical examiner's conclusions as to the cause or circumstances of death were rendered inadmissible in court proceedings except for statements set forth in the death certificate or autopsy report. [12] Under General Statutes § 14-110, the commissioner may issue subpoenas to compel a witness' appearance. There is, however, no statute authorizing the plaintiff's counsel to issue a subpoena to compel a witness' attendance at an administrative hearing. General Statutes § 51-85 would authorize the plaintiff's counsel, or a commissioner of the Superior Court, to issue a subpoena in connection with judicial proceedings, but that power is of no avail in respect to administrative hearings. Thus, the legislature has left control over witnesses to the commissioner. Because the commissioner has such broad powers, the failure to call a crucial witness may constitute prejudicial error in a different case, but we need not decide that issue in the instant case, inasmuch as there is no dispute over the facts and the testimony of the absent witnesses was presented to the commissioner in a satisfactory manner.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510600/	856 S.W.2d 51 (1993) Virginia M. Ellis BROWN, Appellant, v. Rashid S. HAMID, M.D., Respondent. No. 74850. Supreme Court of Missouri, En Banc. June 29, 1993. 52 Gwendolyn S. Froeschner, Columbia, for appellant. Raymond C. Lewis, Columbia, for respondent. BENTON, Justice. Virginia M. Ellis[1] sued Dr. Rashid S. Hamid for medical malpractice, specifically (1) prescribing the drug Corgard without knowing her prior medical condition; (2) failing to discontinue or taper Corgard; and (3) failing to diagnose and treat symptoms of congestive heart failure. The jury, after 33 minutes of deliberation, returned a unanimous verdict for Hamid. Ellis appealed to the Court of Appeals, Western District, and then this Court granted transfer. Affirmed. Ellis asserts as trial court errors: (1) not sanctioning Hamid or defense counsel for unauthorized ex parte contact with her non-treating expert witness; (2) granting Hamid's motion in limine excluding any mention of missing office medical records; and (3) denying leave to amend her petition to add a second count for intentional spoliation or negligent maintenance of her records. Hamid counters that this Court should dismiss the appeal for untimely filing and numerous procedural violations. I. Ellis first saw Hamid in May 1984 for precautionary blood screening, because her sonalready Hamid's patienthad hepatitis. Hamid found that Ellis did not have hepatitis, but that she suffered from hypertension (high blood pressure), diabetes, high cholesterol and low potassium. Hamid recommended that Ellis see her regular physician but since she was already at Hamid's office, she requested that he care for her. Hamid prescribed potassium, increased her diabetes medication, and also discussed diet, counseling her to lose weight. On subsequent visits, Ellis' blood pressure remained high. Around June 10, 1984, Hamid gave her 42 "office sample" tablets of Corgard with directions to take one a day. This is a minimal dosage of Corgard, a beta blocker, which slows the heart rate and the force of the heart contraction. Ellis took 20 of the tablets in June 1984. 53 On June 30, 1984, Ellis visited Hamid's office complaining of chilling, coughing and fever. Because Ellis had some shortness of breath, Hamid did a chest x-ray, which indicated congestion in her lungs. Hamid testified that he urged her to go to the hospital but she refused, so he gave her a shot of antibiotic. That afternoon, Ellis became worse and was admitted to the hospital with congestion, coughing, chilling, and shortness of breath. The admitting diagnosis was bronchitis. Later that evening, based on an x-ray, Hamid diagnosed congestive heart failure and administered Lasix, a diuretic. Ellis improved within hours. Although Corgard can aggravate congestive heart failure, Hamid continued to administer the drug, fearing that an abrupt halt could cause a heart attack. Corgard was discontinued on July 3, 1984, by a consulting specialist in cardiology. After a seven-day hospitalization, Ellis was discharged, and has since been disabled, unable to work. II. Before this Court and the court of appeals, Hamid urges dismissal of the appeal because of numerous procedural deficiencies in filing and briefing. Hamid first attacks the court of appeals' order granting Ellis leave to appeal out of time. This Court will not disturb a special order of the court of appeals absent an abuse of discretion, which does not appear here. Rule 81.07; cf. Frankoviglia v. Centerre Bank of Branson, 791 S.W.2d 7, 9 (Mo.App.1990) (special order may be granted only if motion is filed within six months after final judgment). Next, Hamid emphasizes defects on appeal, such as: errors in appellant's brief, the abbreviated transcript, an incomplete legal file, and a statement of facts claimed to be unfair and not concise. Hamid, in fact, filed substantial supplements to the transcript. Cases should be heard on the merits if possible, construing the court rules liberally to allow an appeal to proceed. Sherrill v. Wilson, 653 S.W.2d 661, 663 (Mo. banc 1983). While not condoning noncompliance with the rules, a court will generally, as a matter of discretion, review on the merits where disposition is not hampered by the rule violations. Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51, 55 (Mo. banc 1981). The briefs in this case delineate the issues, citing authority and argument from which the issues can be decided. Eventually, an adequate transcript and legal file coalesced. In this case, the alleged deficiencies do not prevent review on the merits. See Thummel v. King, 570 S.W.2d 679, 690 (Mo. banc 1978). III. On April 25, 1989, during early discovery, Hamid's attorney telephoned Ellis' expert at his office in the Medical Center. The expert, a doctor and medical school professor, never treated Ellis in the role of physician-patient. Hamid's attorney opened the conversation by stating that his purpose was to ascertain whether the expert "authored" a one-page opinion of the case. Ellis had responded with this one-page opinion, below the expert's name, to the standard interrogatory asking the name of each expert witness and the general nature of the expert's subject matter. See Rule 56.01(b)(4)(a). Ellis' expert confirmed that the interrogatory response included parts of his four-page review. During the conversation, Hamid's attorney claimed that a distinguished, retired physician had examined the case and found no malpractice, that a doctor's mistake did not necessarily constitute medical malpractice, and that Hamid's attorney had defended the expert's colleague and had used another colleague as an expert in another case. Hamid's attorney did apologize several times, saying he did not want to be telling the expert what to do. Hamid's attorney asked if the expert were going to testify; the expert answered that he would be reviewing more data and had not yet decided. The expert believed that the call was not "a big deal" but also that the real reason for the 7-to-10-minute call was to "dissuade" him from testifying as an expert by exerting "social pressure." 54 Ellis argues that the ex parte contact was "improper," citing State ex rel. Woytus v. Ryan, 776 S.W.2d 389 (Mo. banc 1989), and McClelland v. Ozenberger, 805 S.W.2d 264 (Mo.App.1991). Both Woytus and McClelland involved treating physicians. Brandt v. Pelican, 856 S.W.2d 658 (Mo. banc 1993) clarifies the rules governing ex parte contacts in that circumstance. These rules apply, however, only when there exists a physician-patient relationship. In the present case, while the expert witness is a doctor, he never treated Ellis. Discovery of this doctor's opinions is governed by the rules for discovery of an expert's opinions, rather than by the rules for discovery of a "fact" witness. The question thus becomes whether, as a means of informal discovery, opposing counsel may contact ex parte an expert retained by the other side. Rule 56.01(b) recognizes two roles that a retained expert can play in a case. First, an expert can be a "consultant," giving opinions to advise the legal team. Rule 56.01(b)(3). Second, an expert can be a trial witness. Rule 56.01(b)(4). Rule 56.01(b)(4)(a) requires a party to disclose, upon interrogatory, the names of its expert witnesses. Until such an interrogatory, retained experts are consultants; and their written opinions are work product. Under Rule 56.01(b)(3), work product enjoys a "qualified immunity" from discovery. State ex rel. Missouri Highways & Transportation Commission v. Legere, 706 S.W.2d 560, 566 (Mo.App.1986). This immunity is absolute with regard to the mental impressions, conclusions, or opinions of consultants. Rule 56.01(b)(3). A party waives any work product immunity for a consultant by giving the work product to the other side, or by authorizing the consultant to talk to the other side. If the consultant is also a witness, this immunity is waived by formal discovery. The identification of a retained expert as a witness begins the process of waiving this immunity. At the time of identification, a party need only disclose the general subject matter of the testimony. Rule 56.01(b)(4)(a). If the expert is deposed under Rule 56.01(b)(4)(b), further information is disclosed, constituting a waiver of the "work product immunity." While the disclosure may only be compelled by formal discovery, which is limited by Rule 56.-01(b)(4), nothing in the Rules forbids a party from using informal discoveryincluding ex parte contactsto discuss matters previously disclosed. In the present case, while the ex parte contact occurred before the deposition, significant information was disclosed by the one-page summary of the expert's opinion included with Ellis' answer to the interrogatory seeking the expert's name. To the extent that the ex parte contact concerned this summary, it was within the scope of the waiver by that disclosure. The rest of this ex parte contact could be perceived as an attempt to pressure the expert not to testify. In both formal and informal discovery, the Rules do not prohibit a party from trying to convince an expert that an opinion is erroneous, and should be reconsidered in light of particular facts or in light of the opinions of other experts. However, when a party or an attorney emphasizes his or her connections with an expert's colleagues or superiorsespecially when unrelated to the caseit may constitute a form of pressure on an expert's decision to testify, and implies the possibility of indirect benefits or punishments from that decision. In some circumstances, such pressure may constitute a violation of an attorney's ethical duties or the criminal law. See § 575.270.1 RSMo 1986; Rules of Professional Conduct (Rule 4 of the Missouri Rules of Court), Rule 34. In its discretion, a trial court may fashion an appropriate remedy to minimize the effect of an improper part of an ex parte contact. Appellate courts review the decision of the trial court solely for abuse of discretion, and should reverse only when prejudice to the complaining party is shown. Rule 84.13(b); Neavill v. Klemp, 427 S.W.2d 446, 448 (Mo. 1968) Ellis has shown no prejudice. The expert was not 55 dissuaded, did testify at trial, and did not change his testimony after the ex parte contact. If anything, the expert testified in a more assured and convincing manner after the ex parte contact. Hamid's attorney gleaned no significant information concerning trial strategy or other confidential material. The trial court expressly found that Ellis suffered no prejudice from the ex parte conversation. The trial court did not err in failing to sanction Hamid or his attorney. IV. On March 25, 1985, Ellis' attorney, by letter enclosing a signed release, requested Hamid to "forward" Ellis' medical records. On June 25, 198615 months laterHamid's attorney, by letter, requested the return of the "original" records, noting that no copy was in Hamid's office. On September 17, 1986, Ellis' attorney responded that she had, in fact, never received the records. This stalemate begat a motion to produce the records, a subsequent motion for sanctions when the records were not produced, at least two hearings in the trial court, and voluminous suggestions and arguments. On appeal to this Court, Ellis abandons her claim for sanctions for failure to produce her medical records. However, Ellis maintains that the trial court erroneously granted Hamid's motion in limine prohibiting any mention that her office medical records, essentially progress notes, were missing. The trial judge, by pre-trial order, specifically prohibited any offer of proof, in the presence of the jury, concerning the missing records. Immediately before trial, Ellis' attorney stated her intent to call three witnesses to testify as an offer of proof about missing medical records. Hamid's attorney recommended an "oral offer of proof," stating that Ellis need not "call a bunch of witnesses to make her offer of proof." Ellis' attorney, by narrative, then indicated the testimony of the witnesses: contrary to Hamid's deposition statement that he never saw patient information requests and they were processed only by his staff, Hamid's standard office procedure required all record requests to go directly to him, with his staff never handling such requests. Both sides filed affidavits from Hamid's staff. The trial judge declined to reconsider the order in limine, as late as the hour before trial. Hamid contends that a motion in limine is an interlocutory order, not reviewable on appeal, because the trial court may later change or modify the ruling. Ball v. American Greetings Corp., 752 S.W.2d 814, 824 (Mo.App.1988). A motion in limine is a "preliminary expression of the court's opinion as to the admissibility of the evidence." Annin v. Bi-State Dev. Agency, 657 S.W.2d 382, 385 (Mo.App.1983). Hamid then argues that Ellis must have made an offer of proof during trial regarding the missing records, in order to appeal. However, Ellis made a sufficient offer of proof, in view of the ruling not to raise the missing-medical-records issue during trial. The trial court and opposing counsel clearly understood the evidence offered and its relevancy and materiality, resulting in an adequate record for appellate review. See State ex rel. State Highway Comm'n v. Northeast Building Co., 421 S.W.2d 297, 300 (Mo. banc 1967); Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175 (Mo. banc 1958). Addressing the merits, the issue is the admissibility of evidence that the records were missing. At trial, Ellis wanted to show "baseline physical data," the status of her health when she initially saw Hamid and the drastic change after taking Corgard. In the absence of Hamid's progress notes, Ellis resorted to the previous infrequency of her absenteeism from work, 1979 and 1984 hospital records, a stipulation as to the administration of Corgard (including the dosage recommended and taken by Ellis), laboratory reports and insurance claims data from Hamid's office, and her disability after seeing Hamid. The trial court ruled that the issue of the missing medical records was "a spurious and superfluous non-issue." When a motion in limine is sustained, its propriety is judged by the admissibility or inadmissibility of the excluded evidence. 56 Guthrie v. Missouri Methodist Hospital, 706 S.W.2d 938, 941 (Mo.App.1986). Relevant and material evidence may not be excluded solely because it tends to prejudice the jury against a party. Jablonowski v. Modern Cap Mfg., 312 Mo. 173, 279 S.W. 89, 97 (Mo. banc 1925). The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). The trial court's ruling on admissibility of evidence is accorded substantial deference and will not be disturbed, absent an abuse of discretion. Id. In this case, the trial judge concluded that the potential for jury confusion and the introduction of collateral issues justified the exclusion of evidence. The "missing records" issue was clearly a collateral issue. "Exclusion of evidence of collateral matters is demanded when the evidence introduces many new controversial points and a confusion of issues would result...." Jones v. Terminal R.R. Ass'n of St. Louis, 242 S.W.2d 473, 477 (Mo. 1951). The trial judge's concern was precisely this: "We're here to try a medical malpractice case, not try to figure out what happened to some records." The potential for confusion was great. The parties intensely dispute what actually happened to the records. From the affidavits and testimony at the various hearings on this issue, the trial court found it "unknowable" what happened to the records. The trial court did not abuse its discretion in excluding any evidence of the missing medical records. V. On February 26, 1990over three years after filing the original medical malpractice petition, but eight months before trial Ellis requested to add a second count of intentional spoliation or negligent maintenance of her medical records. The trial judge denied leave, finding that Missouri does not recognize this cause of action. Ellis argues that Missouri should. a. Intentional Spoliation Several jurisdictions have a cause of action for intentional spoliation of evidence, though a greater number of jurisdictions do not. John F. Medler, Jr., Spoliation Of Evidence In Civil Cases, 39 St. Louis B.J. 14, 20-21 (1993); Thomas G. Fischer, Intentional Spoliation of Evidence, Interfering with Prospective Civil Action, As Actionable, 70 A.L.R. 4th 984 (1989). The first jurisdiction to recognize this tort was California, analogizing to the tort of intentional interference with prospective business advantage. Smith v. Superior Court for County of Los Angeles, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829, 836 (1984). Ellis relies heavily on Smith. In Smith the defendant specifically promised to retain the evidence knowing of the potential lawsuit, and then lost or destroyed the evidence. Without the missing evidence, the plaintiffs in Smith were completely foreclosed from pursuing a personal injury claim. There was no dispute in Smith that the defendants lost or destroyed the evidence. This case is not similar to Smith. Here, the trial judge specifically found no evidence that Hamid destroyed the records, finding "unknowable" what happened to them since Hamid claimed to mail the records but Ellis' attorney denied receipt. This case presents no basis to recognize a tort of intentional spoliation of evidence. In addition to the crime of tampering with evidence,[2] Missouri has, for over a century, enforced an evidentiary spoliation inference, omnia praesumuntur contra spoliatorem (all things are presumed against a wrongdoer). Pomeroy v. Benton, 77 Mo. 64, 86 (1882); Brian E. Howard, Spoliation of Evidence, 49 J.Mo. Bar 121 (1993). Leading proponents for a tort of intentional spoliation recognize Missouri's role in developing the spoliation doctrine in evidence law. Jamie S. Gorelick et al., Destruction of Evidence, § 1, at 7 (1989). The evidentiary spoliation doctrine applies when there is intentional destruction 57 of evidence, indicating fraud and a desire to suppress the truth. Moore v. General Motors, 558 S.W.2d 720, 733 (Mo. App.1977). If applicable, destruction of evidence without a satisfactory explanation gives rise to an inference unfavorable to the spoliator. Garrett v. Terminal R. Ass'n of St. Louis, 259 S.W.2d 807, 812 (Mo.1953). In this case, the trial judge found no proof of such intentional destruction, fraud, or suppression, and his ruling is not an abuse of discretion. b. Negligent Maintenance Ellis also claims negligent maintenance of her medical records. The threshold issue is whether Hamid has an independent duty to maintain medical records on Ellis. Cf. Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177, 1179 (1987). Ellis' claim is not that the negligent maintenance adversely affected her medical treatment. Rather Ellis alleges "substantial hindrance in establishing her prima facie malpractice action." Invoking the logic of a Florida case,[3] Ellis alleges that § 191.227 RSMo Supp. 1992 and a case interpreting it[4] "pave the way for a cause of action where records are destroyed and a plaintiff's lawsuit impaired." In fact, § 191.227 was not enacted until 1988long after the records were requested in March 1985 and the lawsuit filed in June 1986. House Bill 925, § 1, Laws Mo. 1988, at p. 637. However, even before the enactment of § 191.227, a patient had a common law right to inspect and copy his or her medical records. Thurman v. Crawford, 652 S.W.2d 240, 242 (Mo.App.1983). Ellis, however, misinterprets and over-generalizes the duty. The Missouri cases, statutes, and common law address a physician's duty to let the patient inspect and copy medical records. They do not create an independent duty to maintain medical records. To be sure, in another case, failure to maintain medical records may contribute to, or constitute, medical malpractice. A medical malpractice action is an adequate remedy for Ellis' injury. There is no need, in this case, to recognize an independent tort of negligent maintenance of medical records. Cf. Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761, 768 cert, denied, 304 Md. 299, 498 A.2d 1185 (1985); La Rata v. Superior Court, 150 Ariz. 118, 722 P.2d 286, 288-90 (1986); Theresa M. Owens, Note, Should Iowa Adopt the Tort of Intentional Spoliation of Evidence in Civil Litigation?, 41 Drake L.Rev. 179, 191-192 (1992). In this case, Ellis was able to pursue her claim of medical malpractice without the office medical records. She was able to present her case to the jury and it was there she lost. The facts of this case do not require creation of a new cause of action. The judgment of the trial court is affirmed. ROBERTSON, C.J., HOLSTEIN, THOMAS, PRICE and LIMBAUGH, JJ., and GERALD SMITH, Special Judge, concur. COVINGTON, J., not sitting. NOTES [1] After filing suit, Plaintiff changed her surname to Ellis. [2] § 575.100 RSMo 1986. [3] Bondu v. Gurvich, 473 So. 2d 1307, 1313 (Fla. App.1984). [4] Wear v. Walker, 800 S.W.2d 99 (Mo.App.1990).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1480645/	141 F. Supp. 347 (1956) G. R. CRUSEN, L. F. Gunderson, and L. G. Van Lehn, for themselves and for the other persons similarly situated and named in Exhibits A and B attached hereto, Plaintiffs, v. UNITED AIR LINES, Inc., a Corporation, Defendant. Civ. A. 5257. United States District Court D. Colorado. May 14, 1956. 348 B. F. Napheys, Jr., Denver, Colo., for plaintiffs. Akolt, Turnquist, Shepherd & Dick, Denver, Colo., John P. Akolt, Jr., Denver, Colo., of counsel, and Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., Edmund A. Stephan, Chicago, Ill., of counsel, for defendant. KNOUS, Chief Judge. This action was commenced by the complaint of plaintiffs, employees of defendant air lines company, seeking, among other things, a declaration of their seniority rights as pilots in the employment of defendant. The action has once before been in this Court. For an understanding of the controversy, a brief résumé of its history seems necessary. On May 2, 1955, a complaint was filed by (with one exception) the identical parties plaintiff, the action being numbered Civil 5012. The relief prayed for therein was identical to that now sought. The complaint, in its particulars, was substantially the same as the complaint now before the Court, with the exception that in the instant complaint there is charged the existence of a conspiracy between the defendant company and others with its purpose being the injury of plaintiffs; that allegation was not set forth in the complaint in Civil 5012. On May 20, 1955, a motion was made by the defendant to dismiss or for summary judgment. The motion alleged that the Court was without jurisdiction because the matter was still within the exclusive jurisdiction of the United Air Line Pilots System Board of Adjustment, and 349 secondly, that the plaintiffs had failed to join indispensable parties defendant. The Court, having been advised in the matter, sustained the defendant's motion to dismiss by order of June 13, 1955, on the basis that the plaintiffs had failed to exhaust their administrative remedies by not appealing to the above mentioned Board from an adverse decision of the next lower level. The order of dismissal made no ruling on the second ground alleged in the motion, and was made "without prejudice to the merits of plaintiffs' claims." As is disclosed by the record in the instant action, immediately following the hearing had on the above mentioned motion to dismiss, the plaintiffs appealed to the Board, such action being taken June 7, 1955. The decision of the Board, dated September 1, 1955, was that it was without jurisdiction to hear the plaintiffs' appeal. This ruling was grounded upon a provision of the agreement between the defendant and its pilots providing for an appeal from the Vice President-Flight Operations (which individual had made an adverse decision on plaintiffs' claims on April 25, 1955) to the Board within thirty days following the receipt of the decision by the aggrieved parties or their representative. More than thirty days having elapsed from the receipt of the Vice President's decision of April 25, 1955, to the appeal on June 7, 1955, the Board refused to accept jurisdiction, thereby making final the decision of the Vice President. Thereafter, on January 10, 1956, the complaint in this action was filed. Generally, it alleges for a first cause of action that one group of plaintiffs were, and had been, in 1948, until during the same year made pilot-engineers, co-pilots of the defendant company. That in 1954, this group of plaintiffs were again made pilots, but that their seniority position as pilots was fixed of that date rather than at the date of their original employment as such, being prior to 1948, this action being the result of the wrongful conduct of and a conspiracy between the defendant company and the Air Line Pilots Association, International, in violation of the pilots' collective bargaining agreement. Further, that the System Board was acting in the conspiracy and had prejudged plaintiffs' claim. The second cause of action alleges that another group of plaintiffs has also been denied their proper seniority ratings as pilots through the discriminatory conduct of the defendant. To this complaint was again filed a motion to dismiss or for summary judgment, alleging first, that because of the plaintiffs' untimely appeal to the System Board which refused to accept jurisdiction, the plaintiffs have failed to exhaust their administrative remedies, and, secondly, that the plaintiffs have failed to join indispensable parties defendant. The matter so rests. Proceeding to the first ground of defendant's motion: The System Board of Adjustment was established pursuant to section 184 of Title 45 U.S.C.A. This Board, by the provisions of the same section was empowered to hear disputes "between an employee or group of employees and a carrier or carriers by air growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions," which had not been adjusted by the chief operating officer of the carrier, in this instance the Vice President-Flight Operations. The System Board is vested with jurisdiction equivalent to that exercised by "system, group, or regional boards of adjustment, under the authority of section 153 of this title." 45 U.S.C.A. § 184. In turn, Section 153, Second, 45 U.S.C.A., provides for the above mentioned boards "for the purpose of adjusting and deciding disputes of the character specified in this section", and thus, the boards provided for in section 153, Second, exercise that authority of the National Railroad Adjustment Board, as provided for in section 153, First, of Title 45 U.S.C.A. See Rychlik v. Pennsylvania Railroad Company, 2 Cir., 1956, 229 F.2d 171. It 350 follows, then, that the decisions which touch upon the questions presented here, and which involve similar jurisdictional and procedural issues, with regard to both the National Railroad Adjustment Board of Section 153, First, and the Railway system, group or regional boards of adjustment of Section 153, Second, are also applicable to the System Board of Adjustment as provided for in Section 184. Section 18 of the agreement between the defendant air lines and its pilots, as set forth in Exhibit A attached to the motion here under consideration, provides: "Grievances "Any pilot or group of pilots hereunder who have a grievance concerning any action of the Company affecting them shall be entitled to have such grievances handled in accordance with the procedure established in section 17 hereof for investigation and hearing cases of discipline and dismissal." Section 17-C(7) provides: "If, after the appeal provisions hereinbefore provided have been complied with, further appeal by the pilot, if made, shall be to the `United Air Line Pilots System Board of Adjustment' * * provided such appeal is made within thirty (30) days from the date of receipt by the pilot, or his duly accredited representative or representatives of the decision of the Vice President-Flight Operations, or his duly designated representative. * * " Section 17-C(1) provides: "If any decision made by the Company under the provisions of this section is not appealed by the pilot affected within the time limit prescribed herein for such appeal, the decision of the Company shall become final and binding." In Slocum v. Delaware, Lackawanna & Western Railroad Co., 1950, 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795 wherein a dispute concerning the interpretation of an existing bargaining agreement was involved, the United States Supreme Court declared the courts of the state of New York to be in error in upholding a declaratory judgment interpreting the collective bargaining agreements when the matter had not been before the National Railroad Adjustment Board, which, it was held, had exclusive jurisdiction. It was said that the reasoning of Order of Ry. Conductors v. Pitney, 1946, 326 U.S. 561, 66 S. Ct. 322, 90 L. Ed. 318, upon which authority the Court relied, supported "a denial of power in any court state as well as federal to invade the jurisdiction conferred on the Adjustment Board by the Railway Labor Act." [339 U.S. 239, 70 S. Ct. 580.] Although the Slocum case provides a starting point, it is not decisive of the question presented here, which goes further, and may be stated as being: Does this Court have jurisdiction to try de novo at the instance of the plaintiffs a matter presented by them to the System Board which it refused to hear on the ground that it had no jurisdiction due to the failure of the plaintiffs themselves to take the appeal within the time provided by the controlling collective bargaining agreement? The plaintiffs urge a determination which in reality would leave the question unanswered. First, they claim that under the authority of Moore v. Illinois Central R. Co., 1941, 312 U.S. 630, 61 S. Ct. 754, 85 L. Ed. 1089, and other "discharge" cases, it is unnecessary for them to appear before the System Board, but that they had a right to a judicial hearing in the first instance. The Slocum case, supra, had this to say, at page 244 of 339 U.S., at page 580 of 70 S.Ct., of the Moore decision: "Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S. Ct. 754, 85 L. Ed. 1089. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead 351 he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. * * " This language clearly indicates that the contention of plaintiffs that they were "effectively discharged" from their rightful position and, therefore, have a right to maintain this suit, is not well taken. The Supreme Court points out that Moore ceased to be an employee. Here the plaintiffs allege that they have been continuously in the employment of defendant. Moore claimed damages for breach of contract. The plaintiffs here seek an injunction. It should be noted that damages in one form or another constitute the exclusive remedy in the common law action for wrongful discharge. Howay v. Going-Northrup Co., 24 Wash. 88, 64 P. 135, 6 L.R.A.,N.S., 49, 53. Next, as is said in the opinion in the Slocum case, supra, the common law or statutory action for wrongful discharge differs from any relief which could be given by the Board. Here, there is no allegation that the System Board was without power to give to the plaintiffs adequate relief. Finally, the common law or statutory action does not affect the future relationship of the employer and its other employees. Most assuredly under the allegations of the complaint that relationship would be very much affected here. It was said in Markey v. Pickley, 1911, 152 Iowa 508, 132 N.W. 883, 885, that: " * * To suspend or discharge means to remove, either temporarily or permanently, from employment, and to reinstate may mean to receive back into employment only, or to put back into the same position or state from which removed." In Neid v. Tassie's Bakery, Inc., 1945, 219 Minn. 272, 17 N.W.2d 357, 358, the Supreme Court of Minnesota held: "1. Any form of words which conveys to the servant the idea that his services are no longer required is sufficient to constitute a discharge. * * * A discharge presumptively means that the employer no longer needs or desires the employe's services; that he is done with him; and that all contract relations between them are at an end. * * " See also Taylor v. Tulsa Tribune Co., 10 Cir., 1943, 136 F.2d 981, 983. It is true that in Fishgold v. Sullivan Drydock & Repair Corp., 1946, 328 U.S. 275, 66 S. Ct. 1105, 90 L. Ed. 1230; Hilton v. Sullivan, 1948, 334 U.S. 323, 68 S. Ct. 1020, 92 L. Ed. 1416, and Foor v. Torrington Co., 7 Cir., 1948, 170 F.2d 487, the word "discharge" seems to have been given a broader connotation. But those cases were dealing with Section 8 of the Selective Training and Service Act of 1940, and have no bearing on the question here. In the opinion of the Court, whatever happened with respect to the seniority rights of the plaintiffs as alleged in their complaint was not such an occurrence as would constitute the right of a "common-law or statutory action for wrongful discharge", Slocum v. Delaware, Lackawanna & Western Railroad Co., supra, and thus the decision of Moore v. Illinois Central R. Co., supra, and related cases, is not in point. The plaintiffs' next contention, as found in their brief, is that the validity of the collective bargaining agreement and not its mere interpretation is in question here. In this connection it may be noted that the holding of Slocum v. Delaware, Lackawanna & Western Railroad Co., supra, is not applicable when the dispute involves the validity of the contract and not its interpretation. Brotherhood of Railroad Trainmen v. 352 Howard, 1952, 343 U.S. 768, 72 S. Ct. 1022, 96 L. Ed. 1283; Switchmen's Union of North America v. Ogden Union Railway & Depot Co., 10 Cir., 1954, 209 F.2d 419. The proposition may be stated affirmatively that the federal courts have jurisdiction to act when an agreement is unlawfully entered into or when the agreements are unlawful in terms or effect. Hettenbaugh v. Airline Pilots Ass'n International, 5 Cir., 1951, 189 F.2d 319. Be that as it may, the complaint of plaintiffs does not support their contention as made in argument and in brief. In paragraph 5 of the first cause of action in the Complaint, it is stated the pilots are entitled to the protection of the agreements, "which said agreements were duly negotiated and executed as `collective bargaining agreements'"; in paragraph 10, that the rights of plaintiffs are based upon the agreements; in paragraph 13, that the action of the company violated the agreements; in paragraph 15, that the agreements provide in the alternative that the seniority rights of plaintiffs should have accrued as alleged; by paragraph 17, that the conspiracy of the union and the company violate the rights of the plaintiffs as protected by the agreements; and further violations of the agreements are set forth in paragraphs 18, 24, and 25. The second cause of action is also based upon the validity of the agreements. The plaintiffs, then, have by their own pleadings excluded themselves from the operation of the last above discussed authorities. It is next alleged that because of the make-up of the System Board, it would be unavailing and fruitless, and hence unnecessary for the plaintiffs to go before it. The System Board is comprised of four members, two from the company and two from the union which two groups the plaintiffs allege are in conspiracy against them. They rely mainly on Edwards v. Capital Air Lines, 1949, 84 U.S.App.D.C. 346, 176 F.2d 755, to support this contention. The holding there was, and the Court emphasized its narrow limits, that a clause in an agreement which stated the finding of the System Board to be final and binding does not prevent a minority of employees from obtaining a judicial review of the findings of the System Board, where the Board is made up of four members, two from the union, and two from the company, and where the union is aggressively opposing the claims of the minority employees. Such a situation is not presented here. The plaintiffs do not seek a review of the merits of their claim, nor a review of the System Board's determination that it was without jurisdiction, but rather a trial de novo. Thus, the review provided for in Edwards is beside the point here. The situation as presented in Steele v. Louisville & N. R. Co., 1944, 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173, further relied upon by plaintiffs, was expressly precluded from determination in the Slocum case, supra. See note 7, 339 U.S. at page 244, 70 S.Ct. at page 580. In the Steele case [323 U.S. 192, 65 S. Ct. 232], the courts of Alabama had refused to give any relief to petitioner, a Negro, who alleged that he was excluded from the union, and that the union was carrying out a discriminatory practice toward the petitioner and others similarly situated. The discriminations were based on race alone and were "obviously irrelevant and invidious." The complaint sought, among other things, an injunction against the agreement between the union and the company, an injunction against the agreement between the union and the company, an injunction against the union from purporting to represent the petitioner and others similarly situated while in fact it was discriminating against them, and damages from the Union. The Supreme Court found that under all the circumstances, including the fact that there was no issue presented as to the interpretation of the contract, the petitioner and others had, in effect, no administrative remedies, and their complaint was judicially cognizable. See also Tunstall v. Brotherhood of Locomotive 353 Firemen and Enginemen, a companion case, 323 U.S. 210, 65 S. Ct. 235, 89 L. Ed. 187; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S. Ct. 1022, supra. It has been noted before that the latter case dealt with the validity of a contract, not its interpretation. The Court of Appeals for the Fourth Circuit, in Spires v. Southern Ry. Co., 1953, 204 F.2d 453, affirmed the lower court's action in dismissing a suit for lack of jurisdiction wherein a minority group of employees was seeking a declaration of their seniority rights which they alleged had been denied them by the deliberate and malicious acts of the union. No attempt had been made to invoke the aid of the Adjustment Board before coming into court. At page 456 of the opinion, it was said: "Plaintiffs rely upon Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173 and Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S. Ct. 1022, 96 L. Ed. 1283; but both of those cases dealt with racial discrimination, as to which the courts were well qualified to grant relief and which involved none of the matters of collective bargaining which the Adjustment Board was set up to handle. The distinction between the racial discrimination dealt with in these cases and the sort of discrimination charged here was adverted to in the Steele case in the following language where, after stating that it was the duty of the bargaining representative to exercise fairly the power conferred upon it, the court said (323 U.S. 192, 65 S. Ct. [226] 232): "`This does not mean that the statutory representative of a craft is barred from making contracts which may have unfavorable effects on some of the members of the craft represented. Variations in the terms of the contract based on differences relevant to the authorized purposes of the contract in conditions to which they are to be applied, such as differences in seniority, the type of work performed, the competence and skill with which it is performed, are within the scope of the bargaining representation of a craft, all of whose members are not identical in their interest or merit.' "Where the statutory representative makes contracts of the sort here involved having unfavorable effects upon some members of the craft who present a grievance on that account, it is the Adjustment Board which has jurisdiction of the controversy, and not the courts; for, as we have seen, it was just this sort of controversy that the Adjustment Board was created to handle." While other courts have come to the conclusion that the rule in the Steele case is not limited to questions of racial discrimination, Mount v. Grand International Brotherhood of Locomotive Engineers, 6 Cir., 1955, 226 F.2d 604; Hargrove v. Brotherhood of Locomotive Engineers, D.C.D.C.1953, 116 F. Supp. 3, the real distinction between the Steele case and the instant action lies in the fact that the Steele case presented issues which were without the jurisdiction of the Board. And as was said at page 607 of 226 F.2d in the Mount case, supra: "There are a number of cases, of which several are cited by appellee, holding that seniority is a matter of contract rather than a right guaranteed by the Railway Labor Act, and that the courts lack jurisdiction to construe or interpret a bargaining agreement made pursuant to the provisions of that Act. [Citing cases.] This is not a case involving the construction or interpretation of the collective bargaining agreement. * " The Hargrove case involved a discharge and an illegal cancellation of a contract, and at the time of the opinion, only the brotherhoods, against whom relief was sought, remained as parties defendant. 354 While the deliberate and malicious acts of the union in the Spires case, not in entering into the agreement, but in prosecuting the claimants' grievances, might not have such an immediate and harmful effect in the administrative hearing before the Adjustment Board, for the divisions of that tribunal are made up of five members designated by the carrier, and five designated by the national labor organizations, as would occur in a situation such as presented here where the System Board is of a more local nature, the consistency of which tribunal has been stated before, in the long run and as a practical matter the Court is of the opinion that no real distinction is present. The language, then, of Alabaugh v. Baltimore & Ohio Railroad Co., 4 Cir., 1955, 222 F.2d 861, 867, is appropriate: "The argument that the Adjustment Board might not furnish a fair tribunal in cases of this character because certain members might be biased and prejudiced because of union affiliations furnishes no reason why the courts may ignore the fact that Congress has vested it with exclusive primary jurisdiction in such cases. United Railroad Operating Crafts v. Pennsylvania R. Co., supra, 7 Cir., 212 F.2d 938, 942-943. As said by Judge Conger in his opinion in the United Railroad Operating Crafts v. Wyer, supra, D.C., 115 F. Supp. 359, 365: `In view of the fact that I believe the Adjustment Board has jurisdiction, which the Supreme Court has said is exclusive, I am not certain whether there is room for concern over how plaintiffs will fare before the Board. And it is a fantastic thought that every employee who is discharged under a union shop agreement can run to Court about it.'" Nor, in the opinion of this Court, does the allegation in the complaint setting forth the existence of a conspiracy between the Air Line Pilots Association and the defendant company, not said to be for the purpose of the formation of unlawful and illegal bargaining agreements, but rather allegedly in the hindrance of plaintiffs' rights under the "duly negotiated" agreements, stand on any different plane than the allegation made in the Spires case, 204 F.2d at page 454, breaking a sentence: "* * * that plaintiffs had been deprived of seniority rights by the railroad's action, and that such action had been brought about as a result of pressure exerted by the local chapter of the Brotherhood of Locomotive Engineers, which, it was alleged, had acted `deliberately and maliciously * * * for the benefit of its members and to the detriment of plaintiffs.'" The Court conceives no magic in the use of the word "conspiracy." Finally, as plaintiffs urge, would the allegation of paragraph 25 in the first cause of action in the complaint, that the provisions of Section 152, First, Second, Third, Sixth, and Seventh, and Section 156, Section 182, and Section 184, all of Title 45 U.S.C.A., have been violated by the defendant, standing alone give this Court jurisdiction in the first instance? Without unduly lengthening an opinion which is already much too long, suffice it to say that the Court agrees with the reasoning of the Alabaugh case, supra, as set out on page 866 of 222 F.2d: "The contention that the court should take jurisdiction, notwithstanding the jurisdiction in the Board, because rights are claimed under a statute does not seem to have impressed the three judge court in Johns v. Baltimore & O. R. Co., supra, D.C., 118 F. Supp. 317, nor the Supreme Court, which affirmed its decision, 347 U.S. 964, 74 S. Ct. 776, 98 L. Ed. 1107. It does not impress us. There is no reason why the Board should not consider all rights, statutory and constitutional as well as others, in making its determination. See United Railroad Operating Crafts v. Northern Pacific Ry. Co., supra, 9 Cir., 208 F.2d 135, 138. 355 After such determination is made, plaintiffs, if they feel that any such rights have been denied them, may seek redress in the courts, having then exhausted their administrative remedies; but it would breed endless confusion and virtually nullify the administrative remedy which Congress has been at pains to provide, to allow the Board to be bypassed by an allegation that rights under a statute are involved. * " Returning then to the basic question hereinabove posed so long ago, as to whether this Court has jurisdiction to try de novo a matter presented by the plaintiffs to the System Board which it refused to hear on the ground that it had no jurisdiction because of the failure of the plaintiffs to take the appeal in time: In this connection, it will be recalled that the agreement here involved provides for an appeal to the System Board within thirty days from the receipt of the decision of the Vice President, whose decision becomes final if the appeal is not prosecuted within that time. Among the purposes of the Railway Labor Act is to "provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions * ." 45 U.S.C.A. § 151a(4). Counsel for the plaintiff, with commendable candor, calls the attention of the Court to the case of Atlantic Coast Line R. Co. v. Pope, 4 Cir., 1941, 119 F.2d 39, wherein it was held that the carrier and its employees authorized to establish a System Board of Adjustment, had the power to limit the time within which the Board's jurisdiction might be invoked by appeal, and if a party seeking relief from an adverse decision does not appeal within the allotted time, the case is closed and cannot be handled further. The opinion therein, at page 44 supra, recites: "At the end of 60 days after the adverse decision of the designated railroad official, the case became closed and could not be handled further under the express terms of the agreement. Obviously the controversy was no longer open almost three years later when, for the first time the aggrieved employee took action to upset the decision against him. The case was therefore not pending in 1937 when the System Board was abolished, and the general jurisdiction of the National Board attached. Nothing remained for it to adjudicate." The Ninth Circuit has recently had occasion to decide three cases where somewhat related issues were involved. In Barker v. Southern Pac. Co., 1954, 214 F.2d 918, 919, the Court affirmed the granting of a summary judgment where the complainants had sued for damages for wrongful discharge, but had failed to serve a written notice upon the appropriate officer of the company for a hearing, within the ten days following his discharge as provided for in the collective bargaining agreement. The agreement provided that the ten days' notice should be given "`otherwise the right to a hearing shall cease and the cause for action shall be deemed to have been abandoned.'" The Court held this timely notice to be a condition precedent both to further administrative procedure and recourse to the courts. In Breeland v. Southern Pacific Co., 9 Cir., 231 F.2d 576, 579, wherein the discharged employee failed to prosecute his grievance before either the Railroad Adjustment Board or a court within the time as limited in the agreement, the Court said: "The claim of plaintiff went through all the steps and was decided adversely by `the highest officer designated by the carrier to handle time claims.' Within one year from the date of said officer's decision, no proceedings for final disposition of the claim were instituted by the employee either before the Railroad Adjustment Board or in the courts. According to the agreement 356 which plaintiff says controls the case, the decision against him became `final and binding.' "It is well settled that, where an employee fails to exhaust his consensual remedies by presenting his grievance at the time and manner agreed upon, he cannot seek remedies in the courts because no cause of action has arisen. These decisions, although analogous, do not reach the point here. "In this case, by agreement, plaintiff has no cause of action, since the consensual time limitation had expired. He could no longer perform the condition precedent to recovery by taking action in either forum, administrative or judicial, within one year from the final determination by the hearing officer. If plaintiff had within the time limited pursued his remedy by proceedings for final disposition of the claim before the Railroad Adjustment Board, he could have prevented the bar of finality. Action before the District Court was an alternative, but that, of course, was unavailable if the limitation had expired." In the last of the three, Peoples v. Southern Pacific Company, 9 Cir., 232 F.2d 707, by per curiam opinion, the Court affirmed the summary judgment entered below, D.C., 139 F. Supp. 783, on the ground that the question presented was similar to that determined by the Barker and Breeland cases, and was so decided. The circumstance that the case at bar is not a "discharge" case, does not distinguish the holdings in the three cases last cited that time limits in administrative procedures as well as the administrative procedure itself must be followed, before relief may be sought in court. Nor are we here interested in what application or effect state law may have on the proceedings. See Transcontinental & Western Air v. Koppal, 1953, 345 U.S. 653, 73 S. Ct. 906, 97 L. Ed. 1325; Sigfred v. Pan American World Airways, 5 Cir., 1956, 230 F.2d 13. Finally, it may be said that the reasoning of Olinger v. Partridge, 9 Cir., 1952, 196 F.2d 986, is in point here. That case involved a classification under the Selective Service laws. The complainant had not sought any administrative relief whatsoever. The court said, at page 987, "* * * The theory of exhaustion of administrative remedies by default is without support in precedent or in reasoning. The authorities are all to the effect that the judicial machinery may not be invoked until all administrative remedies have been unsuccessfully pursued. Johnson v. United States, 8 Cir., 1942, 126 F.2d 242. Olinger's inaction does not exhaust his administrative remedies, but rather amounts to a waiver of any rights which he may have claimed under the Selective Service Act." The mentioned lack of reasoning and precedent to support the theory of exhaustion by default, is as equally lacking to support a distinction between default by simply failing to seek an administrative remedy, and default by failing to timely seek an administrative remedy. Accordingly, it is the opinion of the Court that since the plaintiffs' remedies following the unfavorable decision of the Vice President-Flight Operations, rested exclusively with the United Air Line Pilots System Board of Adjustment, and that the jurisdiction of that tribunal was not timely invoked, the plaintiffs through their inaction cannot invoke the jurisdiction of this Court for a trial de novo, and that plaintiffs are thus bound by paragraph 17-C(1) of the agreement making final the Vice President's decision. This determination makes unnecessary any ruling on the second ground of defendant's motion. Therefore, it is Ordered and adjudged that the motion of defendant to dismiss be and the same is hereby granted, and the action and complaint are dismissed for lack of jurisdiction of this Court, but without prejudice to the merits of plaintiffs' claims.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2857505/	Ahmin2 v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-90-093-CR AMIN SATTAR AHMED, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 99,083, HONORABLE MACE B. THURMAN, JR., JUDGE Appellant was convicted of felony theft and sentenced to five years imprisonment, probated. Tex. Pen. Code Ann. § 31.03(e) (4)(A) (Supp. 1991). In two points of error appellant challenges the sufficiency of the evidence to support a felony conviction. He complains that the evidence was insufficient to support a finding that the property was worth at least $750, the jurisdictional threshold for felony theft, and that the testimony about value was inadmissible as hearsay. We overrule both points of error and affirm the conviction. The Austin Police Department conducted a "sting" operation in which undercover officers sold cartons of cigarettes represented to have been stolen. Appellant was arrested for purchasing ninety-four cartons of mixed-brand cigarettes during the "sting." At trial, Austin police officers Mark Gil and Don Mayes testified about the value of the cigarettes. Officer Gil, the coordinator of the "sting," testified that a carton of name-brand cigarettes was worth approximately $12.50 on the day of the offense and approximately $13 on the day of the trial. To arrive at these figures he had called a retail store and asked the price per carton of three name-brand cigarettes. Appellant objected to Officer Gil's testimony, complaining that it was hearsay. He argued that Officer Gil could not testify about the value of the cigarettes because he was not an owner and was not qualified as an expert. The trial court overruled appellant's hearsay objection and allowed Officer Gil to testify as an owner of the cigarettes, stating that the officer, who was in charge of the "stolen property," had a greater right of possession to the cigarettes than the appellant. We first address appellant's complaint that Officer Gil's testimony about value was inadmissible hearsay and therefore was not competent evidence that the value of the stolen property received was at least $750. Because appellant does not challenge the court's determination that Officer Gil had sufficient custody and control of the cigarettes to qualify as an owner, we test the validity of appellant's hearsay objection under the existing doctrinal law governing an owner's right to testify about the value of property. In Texas, the owner of property, although not qualified as an expert, is competent to testify about the value of that property. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Cr. App. 1986); Davila v. State, 547 S.W.2d 606, 610 (Tex. Cr. App. 1977). The owner's opinion is admissible although based on hearsay testimony. Esparza v. State, 367 S.W.2d 861, 862 (Tex. Cr. App. 1983); Holmes v. State, 126 Tex. Crim. 587, 72 S.W.2d 1092, 1093 (1934). In Sullivan, the Court of Criminal Appeals established distinct requirements for qualifying an owner, as opposed to a non-owner, to testify about the value of property: When the proof of value is given by a non-owner, the non-owner must be qualified as to his knowledge of the value of the property and must give testimony explicitly as to the fair market value or replacement value of the property. However, when the owner of the property is testifying as to the value of the property, he or she may testify as to his or her opinion or estimate of the value of the property in general and commonly understood terms. Testimony of this nature is an offer of the witness' best knowledge of the value of his property. Such testimony will constitute sufficient evidence for the trier of fact to make a determination as to value based on the witness' credibility. 701 S.W.2d at 909. Appellant asks this Court to follow a later case which purports to limit Sullivan by holding that an owner's testimony about value may not be based solely on hearsay. McMillan v. State, 754 S.W.2d 422, 425 (Tex. App. 1988, pet. ref'd). In McMillan, the owner of a stolen diamond attempted to expand the Sullivan doctrine to give "eyeball" testimony about the weight of the missing diamond, even though the owner had never personally weighed the diamond and was relying on third-party estimates she "recalled." The State needed this testimony to meet its burden of proof because the diamond had been described in the indictment to weigh one carat. The State argued that hearsay testimony by an owner about the weight of a diamond was analogous to hearsay testimony by an owner about value. Citing a jeweler's testimony that it was "impossible for the naked eye to determine the weight of the diamond," the court rejected the analogy and ruled that an owner who had no personal knowledge about the weight of her diamond could not give testimony about its weight based solely on hearsay. Id. Even though there was no issue regarding the value of the diamond, the McMillan court unnecessarily extended its ruling to require that an owner have personal knowledge in order to testify about the value of her property. We view this portion of the opinion as dictum squarely at odds with the holding in Sullivan. In criminal cases we are bound by the rulings of the Court of Criminal Appeals. We conclude that the trial court properly relied on Sullivan to admit Officer Gil's testimony about the value of the cigarettes. Appellant next complains that there was insufficient evidence to prove that the stolen cigarettes had a value of at least $750. In criminal appeals where the appellant challenges the sufficiency of the evidence, we must consider the evidence in the light most favorable to the verdict and limit our review to determining whether any rational trier of fact could have found, from the evidence presented, the elements of the charge beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Cr. App. 1989). In addition to Officer Gil's testimony regarding the retail price of cigarettes by the carton, Officer Mayes testified that the appellant's own store sold "off-brand" cigarettes at $12.50 per carton at the time of trial. Officer Mays also testified that on the day of the offense the appellant had designated twenty-eight of the stolen cartons as "off-brand" and sixty-four cartons (1) as "name-brand" cigarettes. The trier of fact determines the credibility of the witnesses, weighs the evidence and resolves all conflicts in the testimony. Chanslor v. State, 697 S.W.2d 393, 396 (Tex. Cr. App. 1985); Tex. Code Cr. P. Ann. art. 38.04 (1979). The Sullivan court specifically holds that an owner's testimony will support a challenge to the sufficiency of the evidence, depending on the witnesses' credibility. 701 S.W.2d at 909. This "sting" involved a total of ninety-four cartons of cigarettes. The trier of fact believed the two officers' testimony that the average value per carton, including "off-brand" and "name-brand" cigarettes, was at least $8 (94 cartons x $8 = $752). Viewing the evidence in the light most favorable to the verdict, we hold that any rational trier of fact could have found that the total value of the cartons of cigarettes purchased by appellant met or exceeded $750. The record contained testimony from Officers Gil and Mayes that the value per carton at the time of the offense and at the time of trial was between $12.50 and $13. Although appellant objected to Officer Gil's testimony as hearsay, the court properly overruled this objection. The appellant made no other objections and failed to offer any evidence that the value per carton was less: If the appellant wishes to rebut the owner's opinion evidence he must do more than merely impeach the witness' credibility during cross-examination. He must offer controverting evidence as to the value of the property. Sullivan, 701 S.W.2d at 909. We conclude that appellant's points of error have no merit and we affirm the conviction. Bea Ann Smith, Justice [Before Chief Justice Carroll, Justices Jones and B.A. Smith] Affirmed Filed: June 12, 1991 [Do Not Publish] 1. Officer Mayes testified that appellant counted 92 cartons of cigarettes. There is evidence in the record that there were 94, the number listed in the Warrant of Arrest and Detention.	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/1510525/	372 A.2d 1269 (1977) William G. BARBER et al. v. TOWN OF NORTH KINGSTOWN et al. No. 76-431-M.P. Supreme Court of Rhode Island. May 2, 1977. 1270 Hanson, Curran, Bowen & Parks, A. Lauriston Parks, Providence, for petitioners. Bernard F. McSally, Town Solicitor, North Kingstown, for respondents. Moore, Virgadamo, Boyle & Lynch, Ltd., Francis J. Boyle, Newport, Paul P. Pederzani, Jr., North Kingstown, for State Street Development Co., amicus curiae. OPINION DORIS, Justice. This is a petition for a writ of certiorari brought pursuant to P.L.1948, ch. 2079,[1] § 9, requesting review of a certain amendment to the Zoning Ordinance of the Town of North Kingstown, the petitioners alleging said amendment to be illegal and void. An application was made by the Essex Village Company to the Town Council of North Kingstown on October 4, 1976, for an amendment to the local zoning ordinance. The requested amendment was to change the zoning districts of lots 54, 55 and 202 of assessor's plat 146 from village residential to multi-family dwelling for the purpose of constructing housing for the elderly. Pursuant to P.L.1948, ch. 2079, § 3,[2] notice of the proposed amendment was published in The Standard-Times, and notice was also sent by registered mail to owners of property within 200 feet of the subject lots. A hearing was held before the town council on November 15, 1976, wherein the council voted to approve the amendment. Thereafter, a number of landowners petitioned for a writ of certiorari to overturn the ruling of the town council. We granted the petition on December 17, 1976, and ordered the papers certified to this court. The petitioners' arguments in this case may be divided into three parts. The first is that the published notice was substantively deficient in not meeting legal requirements; the second, that the hearing was not fair and impartial; and the third, 1271 that the amendment was not a proper one in conformance with a comprehensive plan. I. The Notice The first question we address is the sufficiency of the notice since it is a jurisdictional issue and the acquisition of jurisdiction by the town council to rule on the proposed amendment depended on strict compliance with the notice requirements. The petitioners do not dispute the fact that the notice was properly published in The Standard-Times and mailed to those who owned land within 200 feet of the subject property. Instead they say that the contents of both the published and mailed notice were insufficient as a matter of law.[3] They first argue that the notice of the proposed change included a nonexistent designation of a zoning classification and therefore did not inform persons reading the notice as to the type of amendment actually submitted. In the published notice, the requested change was "from Village Residential to Multi-family Dwelling District"; in the mailed notices, the change was listed as "from Village Residential to Multi-Family Dwelling"; and in § 17-2-4 of the zoning ordinance, the applicable section is merely entitled: "Multi-family."[4] The petitioners contend that this confusion of terms makes the notice invalid as not being intelligible to the average person. We disagree. The term "multi-family" is used in only one section of the zoning ordinance and we see no confusion as to its meaning whether the words "residential", "dwelling", "district" or some combination of the three are appended to it. Any reasonable person who read a proposed amendment changing the zoning of a parcel of land from "village residential" to "multi-family dwelling district" would have no difficulty in understanding that the purpose of the proposal was to allow multi-family dwellings or residences. The fact that the exact title as used in chapter 17 of the zoning ordinance was not also used in the published notice is not significant. In the context of this section of the zoning ordinance the words "dwelling" and "residence" are virtually synonymous. The use of one in place of the other would not put a reasonable person reading the notice "in doubt concerning what was being proposed." Carroll v. Zoning Bd. of Review, 104 R.I. 676, 679, 248 A.2d 321, 323 (1968). As to the location of the property, the published notice referred only to the assessor's plat and lot numbers, and petitioners contend that this was an insufficient description. However, while we agree that the street addresses would be helpful to many people unfamiliar with assessor's descriptions, we recognize that they are not required. In Signore v. Zoning Bd. of Review, 98 R.I. 26, 199 A.2d 601 (1964), we construed the notice requirement of G.L. 1956 (1970 Reenactment) § 45-24-18, and said: "It was by the designation of the assessor's plat and lots that the property would be recognized by the public and insofar as notice of the property under consideration constitutes the issue, the property was fully described and, in our judgment, proper constructive notice was 1272 given to the public within the meaning of G.L.1956, § 45-24-18." Id. at 32, 199 A.2d at 605. We see no reason why this is not also true under P.L.1948, ch. 2079, § 3. Thus we find that the notice was adequate to meet the requirements of P.L. 1948, ch. 2079, § 3. In so ruling we are merely following the pattern established in a number of our zoning cases when we construed the various notice provisions in the general zoning enabling act. The basic rule as to notice has been that the notice must be "sufficient to inform an ordinary layman lacking expertise in zoning matters of the property affected and the changes sought." Sweetrnan v. Town of Cumberland, R.I., 364 A.2d 1277, 1283 (1976). Accord, Golden Gate Corp. v. Town of Narragansett, R.I., 359 A.2d 321 (1976); Federal Bldg. & Dev. Corp. v. Town of Jamestown, 112 R.I. 478, 312 A.2d 586 (1973); Carroll v. Zoning Bd. of Review, supra. The notice here meets that test. The petitioners, however, go further and say that the notice also had to be in conformity with § 45-24-4.1, as amended, which requires publication of proposed amendments in their entirety at least once. Without deciding whether the publication of the proposal met the standards of § 45-24-4.1, we note that those standards are inapplicable in the present case since North Kingstown is bound only by its special enabling act. See notes 1 and 2, supra. Section 45-24-21 makes this clear. It says: "Special statutes controlling.The provisions of this chapter are subject to the provisions of any special statutes respecting any particular town or city, none of which are hereby repealed, except as otherwise provided." In referring to G.L.1938, ch. 342, which was the predecessor of § 45-24-1 et seq., we said: "That chapter does not apply to North Kingstown in view of the fact that the legislature has enacted a special enabling act solely for its benefit." Baker v. Zoning Bd. of Review, 82 R.I. 432, 436, 111 A.2d 353, 355 (1955). In view of this, we see no reason why the notice requirements as contained in § 45-24-4.1 should apply to a town with a special enabling act. Therefore we find that the notice requirements contained in § 3 of the special enabling act were met and the town council therefore had jurisdiction to hold a hearing on the proposed amendment. II. The Hearing The petitioners also claim that the hearing before the town council was conducted in an unfair and improper manner, and therefore they were deprived of their rights. After carefully reading the transcript of the hearing, we do not come to the same conclusion as petitioners. In fact, it is apparent throughout the transcript that the council made every effort to conduct a fair and impartial hearing. In doing so they allowed, without comment, everyone who sought to address the council to do so, in some instances more than once. Following the hearing, the council members even spoke of the difficulties they had in balancing the competing interests before voting 4-1 in favor of the amendment. This appears to be consistent with notions of fair and impartial hearings. The standard in judging the fairness of a public hearing was enunciated by us in Golden Gate Corp. v. Town of Narragansett, supra, 359 A.2d at 326, where we said: "The crucial question to be answered is ` * * whether a fair-minded person in attendance at all of the meetings on a given issue, could, at the conclusion thereof, in good conscience say that everyone had been heard who, in all fairness, should have been heard and that the legislative body required by law to hold the hearings gave reasonable faith and credit to all matter presented, according to the weight and force they were in reason entitled to receive.'" We find that the hearing conducted on the proposed zoning amendment was conducted in a manner which conforms to this standard and we see no evidence of the bias and prejudice of which petitioners complain. *1273 III. The Comprehensive Plan Finally, petitioners briefly allude to the question of whether the amendments conform to a comprehensive plan in accordance with § 1 of the enabling act. Any amendment which does not so conform to a comprehensive plan is illegal. Sweetman v. Town of Cumberland, supra, 364 A.2d at 1285. "A court may strike down an amendment only if the amendment bears no reasonable relationship to the public health, safety or welfare." Id., 364 A.2d at 1285. "Furthermore, an amendment is presumed to be valid and the plaintiff must demonstrate that no such reasonable relationship exists." Id., 364 A.2d at 1286. The transcript of the hearing and the report by the North Kingstown Planning Commission leave no doubt that the amendment is consistent with the comprehensive zoning plan. The survey indicating the need for elderly housing in North Kingstown, the town master plan showing the area as planned for intensive residential development (three to twelve dwelling units per acre), and the study of the physical attributes of the area all indicate that this amendment conforms to the comprehensive plan. The petitioners point to various difficulties but come nowhere near meeting their burden of demonstrating a lack of reasonableness. Since we find that the amendment to the Zoning Ordinance of North Kingstown is consistent with a comprehensive plan, and was passed by the town council after valid notice and hearing, we must reject the petitioners' claim. The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records and papers certified to this court are ordered returned to the respondent town council with our decision endorsed thereon. NOTES [1] Public Laws 1948, ch. 2079, is entitled: "An act to authorize the town of North Kingstown to enact zoning and building ordinances." It is one of a number of special zoning enabling acts which are to be distinguished from the general zoning enabling act contained in G.L.1956 (1970 Reenactment) § 45-24-1 et seq. Section 9 of this special act allows aggrieved parties to petition directly to the Supreme Court by way of certiorari to review decisions of the town council. See Golden Gate Corp. v. Town of Narragansett, R.I., 359 A.2d 321, 323 (1976). [2] Public Laws 1948, ch. 2079, § 3 reads as follows: "No such ordinance shall be enacted, amended or repealed until after a public hearing has been held upon the question of the enactment, amendment or repeal of such ordinance, before said town council or a committee or commission authorized by said town council to investigate and make recommendations concerning such proposed ordinance, who shall first give notice of such public hearing, specifying the time and place of such hearing, by publication in a newspaper printed in the county of Washington at least once each week for 3 successive weeks prior to the date of such hearing, at which hearing opportunity shall be given all persons interested to be heard upon the matter of the proposed ordinance." [3] The published notice read as follows: "TOWN OF NORTH KINGSTOWN NOTICE OF PUBLIC HEARING "NOTICE IS HEREBY GIVEN that the Town Council of the Town of North Kingstown Rhode Island, will conduct a public hearing at the Senior High School, 150 Fairway, North Kingstown, Rhode Island, at 7:30 o'clock p. m., on Monday, November 15, 1976, on the application of Essex Village Company, for an amendment to Chapter 17 of the Revised Ordinances (1974), of the Town of North Kingstown, as amended, entitled Zoning, to change from Village Residential to Multi-family Dwelling District, those certain lots or parcels of land owned by Anna M. O'Shea and recorded as Assessor's Plat 146, Lots 54, 55 and 202. Lillian L. Hackett, C.M.C. Town Clerk" The mailed notices had substantially the same information, except that the property was further identified as being on the "northerly side of Newcomb Road," and the proposed change was to "multi-family dwelling." [4] The body of the section refers to "multi-family residential district" as well as to "multi-family dwelling."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510546/	856 S.W.2d 502 (1993) Angela Monique MOORE, Appellant, v. The STATE of Texas, Appellee. No. 01-92-00077-CR. Court of Appeals of Texas, Houston (1st Dist.). May 13, 1993. Discretionary Review Granted September 22, 1993. Kevin Oncken, Oncken & Oncken, P.C., Houston, for appellant. John B. Holmes, Jr., Scott A. Durfee, Blair Davis, Houston, for appellee. Before OLIVER-PARROTT, C.J., and O'CONNOR and WILSON, JJ. OPINION WILSON, Justice. A jury found appellant, Angela Monique Moore, guilty of aggravated assault on a peace officer. The trial court assessed punishment at one-year confinement, probated for one year. We reverse. State's witnesses testified that on November 20, 1990, Deputy Randy Eng was patrolling the lobby of the Harris County jail. During his patrol, Eng met with Sergeant Walter Preuss, who told him he had earlier escorted appellant off the premises after she created a disturbance. Shortly thereafter, Eng heard appellant using vulgar language inside the lobby of the jail. 503 Eng asked appellant to leave, but appellant refused and continued to use vulgar language. Eng then arrested appellant for disorderly conduct, handcuffed her, and took her from the public area into a restricted hallway. Appellant struggled with Eng as he attempted to take her to the booking area of the jail. Sergeant Debra Schmidt saw the struggle from her office, and went to assist Eng. Schmidt and Eng each took one of appellant's arms, and escorted her to the booking area. When they arrived, two other deputies took appellant to a holding cell, as Schmidt followed behind them. When they reached the holding cell, appellant placed her feet against the door to the cell and pushed herself backwards onto Schmidt. The two fell to the floor, and Schmidt sustained injuries to her lower back and her arm. The officers then placed appellant inside the holding cell. Appellant testified she came to the jail with her daughter to visit her brother. She was asked who she was there to visit, and then was told she would not be permitted to see anyone and given five seconds to leave. When she approached the information desk to complain, she was arrested. She denies that she used any vulgarities before she was hit in the jaw by one of the officers. Appellant testified she informed the officers she was eight to twelve weeks pregnant, but they nonetheless assaulted her, causing her to miscarry shortly after the incident. We find appellant's third point of error dispositive. In that point of error, appellant contends the trial court erred in permitting testimony to be re-read to the jury during its deliberations, without first obtaining certification[1] from the jury that there was a dispute among them regarding some point within that testimony. During its deliberations, the jury sent three notes to the judge, asking that certain testimony be read back to them. The first note, filed with the trial court at 10:36 a.m. on January 22, 1992, stated: We would like to hear read the testimony of Moore, Ing [sic], and Schmidt describing what happened from the point where Ms. Moore was taken through the doors from the public area. The judge responded that the testimony would not be available until after 1:00 p.m. Appellant's counsel asked the judge to instruct the jury to certify that there was a dispute among them about a particular point in the testimony. The trial court refused. The second note, filed with the court at 1:45 p.m., stated: The jury requests to hear the earlier requested testimony of Officer Ing [sic] and then retire for further deliberations. If the other testimony is needed we will request it. The judge responded that he was still awaiting the arrival of the court reporter. The final note, filed at 3:15 p.m. stated: We cannot progress any further until Officer Ing's [sic] testimony is read for us. Is the court reporter here so she can read that portion of the testimony? Appellant's counsel again objected to the re-reading of testimony without a certification of a dispute, which was overruled. The court reporter then re-read portions of Eng's direct and cross-examination testimony describing what happened from the point appellant was first taken into custody until she was placed in a holding cell. Article 36.28 of the Code of Criminal Procedure governs the reading of testimony to the jury during its deliberations. It provides, in part: 504 In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other.... TEX.CODE CRIM.P.ANN. art. 36.28 (Vernon 1981). "When a jury asks that certain disputed testimony be re-read, the court must first determine if the request is proper under article 36.28[.] If it is proper, the court must then interpret the communication; decide, in its discretion what sections of the testimony will best answer the query, and limit the testimony accordingly." Iness v. State, 606 S.W.2d 306, 314 (Tex.Crim.App. 1980) (emphasis added). The State contends, and we acknowledge, that article 36.28 does not explicitly state that a jury must "certify in writing" that they are in disagreement. However, this section does require that "the jury disagree as to the statement of any witness" before testimony may be re-read to them. It is the responsibility of the trial court to "determine if the request is proper under article 36.28." Iness, 606 S.W.2d at 314.[2] In the present case, the final note from the jury merely stated that they "could not progress any further" without the re-reading of Officer Eng's testimony. Standing alone, or considered cumulatively with the prior notes, the third note does not indicate either that the jury was in disagreement, or specify a particular matter that was the focus of any disagreement. The State asserts that the jury's disagreement was "implicit" in their requests.[3] We acknowledge that disagreement may be reflected in the third note, but not implicitly so.[4] Indeed, the jury's request to hear the testimony "from the point Ms. Moore was taken through the doors from the public area" indicates the jury wanted to rehear Officer Eng's testimony regarding the entire incident, save the initial disturbance in the lobby. The portion of the testimony actually read to the jury consisted of some 11 pages of trial testimony covering a variety of different observations of the witness about the incident. 505 We hold the trial court abused its discretion in causing trial testimony to be re-read to the jury without compliance with article 36.28. We cannot say that the re-reading of the testimony of Officer Eng did not contribute to appellant's conviction. This testimony, heard for a second time by the jury in the midst of their deliberations, effectively bolstered the State's case against appellant. Therefore, we conclude that this error was not harmless beyond a reasonable doubt. Tex.R.App.P. 81(b)(2) (Vernon 1992). Appellant's third point of error is sustained. The judgment of the trial court is reversed and we remand to the trial court for a new trial. DUGGAN, Justice, dissenting on refusal to consider en banc. I respectfully dissent from the majority's refusal to consider en banc the panel's decision to reverse the judgment of conviction based solely on appellant's point of error three. Tex.R.App.P. 79(d), (e). I believe the trial court did not abuse its discretion in finding that the jurors implicitly disagreed among themselves as to Deputy Eng's testimony, and were therefore entitled to have the testimony read. It appears from the record, including appellant's brief, that appellant did not dispute the existence of this implicit disagreement. The majority has ignored the narrow procedural complaint appellant actually urged, and has granted reversal on its restatement of a complaint that was not asserted. Appellant's point of error three literally states: "The trial court erred in having testimony re-read for the jury during its deliberation without certification from the jury that there was a dispute amongst them as to some point within said testimony." (Emphasis added.) A plain reading of appellant's point of error shows that he complains that the trial court refused to require the jury to certify their disagreement among themselves as to some point in the testimony, but instead allowed testimony to be read solely on his finding that they disagreed as to some point. From the time the court received the deliberating jury's first note, appellant's counsel repeatedly requested the trial judge to require the jury to certify their disagreement about the witness' testimony, a procedure to be done in some court-directed manner not spelled out in Tex.Code Crim.P.Ann. art. 36.28 (Vernon 1981). Appellant timely objected to the court's refusals. His appellate complaint understandably sought from us a case law decision directly addressing what was previously stated only in dicta by the Court of Criminal Appeals in Iness v. State, 606 S.W.2d 306 (Tex.Crim.App.1980). In Iness, the court stated: The court properly instructed [the jury] that they must certify their disagreement and request only that part of a witness' testimony which was in dispute. 606 S.W.2d at 314. The Iness trial court's instruction to the jury to "certify their disagreement" was certainly not error, since nothing in article 36.28 prohibits such a procedure in determining jury disagreement; however, as the majority opinion correctly notes, the statute makes no such requirement. Ironically, the court rejects appellant's contention, but rewrites his point of error to grant relief on a basis he did not urge. In argument in his brief under point of error three, appellant emphasizes that his complaint is about the court's refusal to require certification of a dispute. He first writes that "[o]n several occasions prior to the testimony being re-read for the jury, the appellant objected and requested that the trial court notify the jury that they were required to certify that a dispute existed as to a particular point.... (Emphasis added.) Appellant then cites the quoted Iness language noting that "the court properly instructed them that they must certify their disagreement...." (Emphasis in appellant's brief.) He next argues, "There is no question that it is mandatory that there be a certification as to a dispute...." (Emphasis added.) Later, his brief reiterates, "In the instant case, the appellant repeatedly asked the trial court to instruct the jury that they 506 must certify a dispute before testimony can be reread. (Emphasis added.) In summary, the majority rejectsI believe correctlyappellant's stated claim of error, i.e., the court's refusal to require the jury to certify their disagreement. However, the majority proceeds to sustain his point of error and reverseI believe erroneouslyby interpreting his complaint as one they consider appellant should have urged, i.e., the court's abuse of discretion in finding implicit disagreement. I would hold that, in fact, implied disagreement among the jurors is shown. The jury's second and third notes to the court make plain that they are "at a standstill" in their deliberations until Deputy Eng's testimony can be read to them. When a jury waits hours to hear a witness's testimony read back, I do not believe a trial judge is unreasonable in concluding the jury disagrees about that testimony. The progression of events during jury deliberations underscored the reasonableness of the judge's conclusion that the jury was in disagreement about Eng's testimony. Having earlier asked for three witnesses' testimony, and having been told that the reporter was not available, the jury finally asked only for Detective Eng's testimony on the matter. The reasonable deduction was that the jurors had resolved any concerns they had about the other two witnesses, the complainant and the defendant, and were now focused on Eng, the "independent" witness. The possible logical conclusions from the jury's second and third requests were that: (1) the jurors all thought they remembered Eng's testimony, but they disagreed about it; (2) some jurors had forgotten Eng's testimony, and were unwilling to accept other juror's recollections about it; and (3) all 12 jurors had forgotten it. The last alternative was highly improbable. I would categorize possibilities (1) and (2) as varieties of disagreement. Disagreement about Eng's testimony entitled them to have it re-read. I find no authority holding that the jury disagreement required under article 38.26 cannot be implicit disagreement. Nothing in article 38.26, and no reported case on the subject, prescribes a ritual to be practiced by either the trial court or jury in order that the court may determine jury disagreement. Indeed, appellant's point of error sought to have this Court determine that the trial court's knowledge of jury disagreement must be based on jury certification of that fact, as the Iness dicta approved. No Texas appellate decision has yet reversed a conviction based on a trial judge's unreasonable finding of jury disagreement about a witness's testimony. A close, but distinguishable situation, is found in Pugh v. State, 376 S.W.2d 760 (Tex.Crim.App. 1964), where the jury did not ask for the testimony of any witness, but simply requested the date and time of an incident. There, after the information sought was stipulated and furnished, the jury retired and continued deliberations. The Pugh trial judge, on his own motion and over objection, then ordered that all of the arresting officer's testimony be read back, none of which related to time and place of the incident inquired about. The Court of Criminal Appeals held this "was not authorized and tended to bolster the state's case," 376 S.W.2d at 762, and reversed and remanded. In Flores v. State, 827 S.W.2d 529, 530-531 (Tex.App.-Austin 1992, no pet.), appellant requested and was denied, as a predicate for reading back testimony, even less than a "certification" of disagreement among the jury. There, appellant sought simply to have the trial court answer the jury's request for testimony "by instructing the jury that the testimony would be read if they reported a disagreement about this testimony." 827 S.W.2d at 530 (emphasis added). The trial judge refused, stating, "You know they disagree or they wouldn't ask." He further added, "[t]he point of [article 36.28] was so that they couldn't read back the whole testimony but just that portion." 827 S.W.2d at 530. In rejecting Flores' complaint that the trial court erred in not requiring the jury to report a disagreement about the requested testimony, the Austin Court of Appeals held: *507 Granted, it is not error to require a jury to state that it has such a disagreement, and it may even be the better practice to do so. [citing authorities]. We agree with the district court, however, that the existence of a disagreement was implicit in the jury's request. 827 S.W.2d at 531 (emphasis added). Finally, appellant does not urge as a point of error, as others have successfully done, either that the testimony read to the jury went beyond the testimony requested, or that any material testimony was omitted. I would reject appellant's precisely stated complaint, as the majority did. However, I would then hold that the trial court did not abuse its discretion, but reasonably found that the jurors implicitly disagreed among themselves about Deputy Eng's testimony, and did not err in allowing it to be read back to the jury. I would overrule appellant's point of error three and consider the remainder of appellant's complaints on appeal. NOTES [1] The dissent opines that we are considering a point of error not raised by appellant. We fundamentally disagree. Beginning with appellant's objections at trial, argued in appellant's brief and encapsulated into his point of error number three, we understand appellant's complaint to be that the trial judge refused to ascertain in writing from the jury what the jury's specific disagreement was about Eng's testimony. We do not understand the appellant in this case, or the Court of Criminal Appeals in Iness, to be concerned with some rigid form of the communication received by the court from the jury, but rather with the specificity of its substance. [2] In Iness, the defendant was prosecuted for rape. During the jury deliberations, the jury sent out a note asking to rehear testimony of the victim regarding actual penetration. The Court of Criminal Appeals found the trial court "properly instructed [the jury] that they must certify their disagreement and request only that part of a witness' testimony which was in dispute." After the trial judge instructed the jury, they sent out the following note: At the beginning of where [the victim] was being questioned by the D.A. about actual penetration. We are in disagreement as to her answers concerning this matter. The trial judge then permitted the jury to hear the direct and cross-examination of her which related only to penetration. The Court of Criminal Appeals found the judge did not abuse his discretion in permitting this testimony. Iness, 606 S.W.2d at 314. [3] The State bases this argument on Flores v. State, 827 S.W.2d 529 (Tex.App.-Austin 1992, no pet.). In that case, the appellate court found "no authority holding that it is error to read back a portion of a witness' testimony in the absence of an express statement by the jury that it is in disagreement as to the testimony." 827 S.W.2d at 530-31. The jury's request in that case stated: We, the jury, request a transcript of the testimony of [the victim's brother] regarding his observation of Cipriano Flores' alleged penetration of the vagina and/or mouth of [the victim]. The Austin court acknowledged that it may be "the better practice" to obtain written certification, but agreed with the trial judge's conclusion that the existence of a disagreement was implicit in the jury's request. Flores, 827 S.W.2d at 530-31. [4] It is certainly easier to find compliance with the statute when the jury's wishes are expressed objectively. Relying on the judge's subjective interpretations of a jury request is a far riskier procedure given the statute's absolute command that the jury is to hear only the testimony in dispute, and no other. The first note asked for the testimony of Schmidt, Moore, and Eng and may suggest the jury wanted to re-hear and then re-weigh the testimony of the three main witnesses. The last note's narrowed application only to Eng may have been a result of a decision that the testimony of Schmidt, the complaining witness, and Moore, the defendant, was offsetting and the critical witness was Eng. The jury's reason for submitting the final note may have resulted from their collective decision that Eng's testimony was the most critical, and therefore should be reheard. If the jury was so motivated, their request would be outside of the statute, and re-reading the testimony would be error.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510536/	160 F.2d 619 (1947) SPANEL et al. v. PEGLER et al. No. 9128. Circuit Court of Appeals, Seventh Circuit. February 11, 1947. Rehearing Denied March 6, 1947. 620 Max Swiren, Ben W. Heineman, and Joseph D. Block, all of Chicago, Ill. (Swiren Heineman & Antonow, of Chicago, Ill., of counsel), for appellants. Floyd E. Thompson, of Chicago, Ill., for appellees. Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge. KERNER, Circuit Judge. Plaintiffs brought this action for libel against defendants who were responsible for the inception and publication of the alleged libelous article which appeared in a Chicago evening newspaper. Diversity of citizenship and the requisite amount in controversy resolved the question of jurisdiction. Defendant Pegler was not served, and the remaining two defendants, who were served and appeared, joined in a motion to dismiss the amended complaint on the grounds of failure to state a cause of action. The court sustained their motion, and plaintiffs have appealed. The amended complaint alleged that plaintiff Spanel was the president of International Latex Corporation; that he was not, nor is he now, a Communist, either in sympathy or political belief; that about March 15, 1945, the defendants the Illinois Publishing and Printing Co., publisher of the newspaper "The Chicago Herald-American," and King Features Syndicate, the distributor of Pegler's column published in "The Chicago Herald-American" the alleged defamatory article. The complaint further alleged that "By virtue of the writing and publication of such false, scandalous, malicious and defamatory libel, the defendants and each of them did mean and * * were understood as meaning that the plaintiff Spanel was and is a Communist or a so-called `fellow-traveler' or adherent to, or sympathizer with, the principles, preachments and objectives of Communists or Communism." The same article was published in approximately 180 newspapers throughout the United States by means of the service provided by King Features, for which additional damages were sought. The article in question, which was made part of the complaint, omitting portions, is hereby set out: "As Pegler Sees It. Communists Go `Big Business' to Trick U. S. By Westbrook Pegler. "In Writing some time ago of the use of radio by a Russian-born war contractor to harangue the Americans with propaganda consistent with the Communist line, I made the mistake of declaring that our standard American press would not sell advertising space for editorial matter. "It was a careless observation and incorrect because, periodically, since 1939, the International Latex Company of Playtex Park, Dover, Del., has been running political arguments as paid advertisements. "These have been New Deal preachments, and anti-Nazi, but, as far as my reading of them reveals, never anti-Communist, nor hostile to totalitarianism, as such. * * * * * * "Even though it were not deducted, but paid out of the company's [Novick's Electronic Corp.] own profits, they would still pay for it because, after all, it is the taxpayers who pay the profits, too. A Communist organization having the form of an American business corporation might desire profits only to be able to use them to promote the cause of communism. "There are points of similarity between Novick of Electronic and the president of International Latex, whose name is Abraham N. Spanel. * * * His [Spanel] advertisements run two or three columns wide, the length of the page, in a national list of newspapers, a campaign suggesting a huge appropriation for political propaganda, and he is a rapturous advocate of 621 Henry Wallace as an American political prophet. * * * * * "Another of Mr. Spanel's rhapsodies was a reprint of a column by a member of the Roosevelt newspaper following in Washington, which described Wallace as a champion and symbol of the `aspirations of the common man and the underdog.' This was a poetic construction well expressing the attitude of some demagogues of the extreme left who regard the American citizen as a soulless lump to be fed, quartered, ordered and disciplined even as a dog. "A native of Russia and an admirer of the Soviet system might be pardoned in the error. * * * * * * "He [Spanel] is said to have returned voluntarily $1,500,000 of his profits to the Treasury, but we are not told whether he might have had to do this anyway, as many manufacturers must, under the renegotiation process. A war contractor thus could make patriotic virtue of legal necessity. "We do know, however, that the advertising matter is entirely political and ideological, with no mention of any commercial product, and that it represents a lavish outlay of money by a corporation for political propaganda in the guise of public service, financed by an immigrant from Russia, who seems to admire Russia as a trustworthy national comrade of the United States, without reference to the record of Russia's past performances or examination of the Communist system." The complaint further alleged that for a long time prior, to March 15, 1945, there existed throughout the United States persons called Communists and that it was commonly believed that Communists and their sympathizers, adherents and so-called "fellow-travelers" were persons who were not attached to and did not give primary allegiance to the Constitution or the Government of the United States, but were persons who sought unlawfully and by force and violence or trickery to overthrow the Government of the United States. The question is whether the complaint states a cause of action. Defendants' position is predicated upon two major premises: first, that it is not libelous per se to write of any one that he is a Communist or that he is sympathetic toward Communism; secondly, there are no facts alleged in the complaint which show that the statements made in the alleged libelous article are unreasonable editorial comment or are false. In Illinois, whose law is controlling in this case, written or printed words are libelous per se "`if they tend to expose plaintiff to public hatred, contempt, ridicule, aversion or disgrace, and to induce an evil opinion of him in the minds of right thinking persons. * * '" White v. Bourquin, 204 Ill.App. 83, 94, and cases cited. While this is a standard definition of libel per se, two questions present themselves for our consideration and a negative answer to either one precludes plaintiffs' case. (1) Is it libelous per se to write of a person that he is a Communist or a Communist sympathizer? (2) If it is, has a question been presented to be determined by the jury in that the alleged offending article[1] is reasonably susceptible of being understood by ordinary readers as conveying this meaning? Through their courts, sister states have held that it is libelous per se to characterize a person as a Communist or a Communist sympathizer.[2] Levy v. Gelber, 175 Misc. 746, 25 N.Y.S.2d 148; Toomey v. Jones, 124 Okl. 167, 254 P. 736, 51 A.L.R. 1066; Gallagher v. Chavalas, 48 Cal. App. 2d 52, 119 P.2d 408. Illinois courts have never been called upon to pass directly on this question, but in Cerveny v. Chicago Daily News Co., 139 Ill. 345, 28 N.E. 692, 622 13 L.R.A. 864, and in Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587, the court passed upon charges quite similar to those published in this case. In the Cerveny case, the characterization of plaintiff as an anarchist in a publication of defendant's newspaper was held to be actionable and libelous per se. In the Ogren case, the defendant newspaper asserted that plaintiff was a socialist and a rebel against the prevailing economic system. The court held this to be libelous per se. Recently, this court had occasion to interpret the law of Illinois regarding libel and held that published words reflecting on one's patriotism are libelous per se whether they be directed at a person or a corporation. Pullman Standard Car Mfg. Co. v. Local Union No. 2928, 7 Cir., 152 F.2d 493, 496. A reading of these cases forces us to the conclusion that in Illinois it is libelous per se to write of a man or a corporation that they are Communists or Communist sympathizers, because the label of "Communist" today in the minds of many average and respectable persons places the accused beyond the pale of respectability and makes him a symbol of public hatred, in violation of the statute. Ill.Rev.Stat.1945, c. 38 § 402. It has long been established that there need not be universal hatred as a result of a falsehood. It is sufficient if a fraction of those informed view the plaintiffs with contempt. Peck v. Tribune Co., 214 U.S. 185, 190, 29 S. Ct. 554, 53 L. Ed. 960, 16 Ann.Cas. 1075. Defendants argue that the word Communist has no definite meaning; that it is merely the expression of an opinion which if held actionable per se is to eliminate its use from political discussions. Concededly, the word is carelessly and perhaps indefinitely used today. Nevertheless, there can be no denial that its appearance as a characterization in a newspaper political editorial is sufficient to destroy a person's presumably good reputation with the public. And it seems anomalous for defendants to make such a contention, because newspaper publishers, generally, as molders of public opinion, have created the ogre which defendants here seek to characterize as innoxious. Even if these views may soon be altered and are in truth only the mores of the times, they must be respected as criteria. If it were libelous per se in 1889 to write of a man as an anarchist (Cerveny case) and libelous per se in 1915 to write of a man as a socialist (Ogren case) it is libelous per se in 1945 to write of a man as a Communist. In attempting to answer the question whether the alleged libelous article presents a factual issue to be determined by the jury we are guided by the rule "that an alleged libelous publication must be interpreted in the sense in which readers would understand it * * ." Ball v. Evening American Pub. Co., 237 Ill. 592, 600, 86 N.E. 1097, 1100. It is elementary that the alleged offending editorial comment must be considered as a whole. Indeed, the headlines of an alleged offending article should be considered in determining whether the language is reasonably susceptible of a defamatory meaning. Cook v. East Shore Newspapers, 327 Ill.App. 559, 587, 64 N.E.2d 751. If, however, the alleged libelous words are not in themselves libelous, they cannot be made so by innuendo. LaGrange Press v. Citizen Pub. Co., 252 Ill.App. 482, 485. It is immediately apparent that the headline in the article complained of is provocative, whether one just glances at the words to create sense or studies them carefully. As Pegler Sees It. Communists Go "Big Business" to Trick U. S. The article itself is dual in that it describes first the activities of one Novick, a manufacturer, who purchases time on the radio in order to interpret the news. It further states that his press agent is "a prominent and aggressive Communist"; that his news "interpreter" is a convicted thief; that Novick himself is associated with Communists in a projected new corporation. The second portion of the article, which is by no means completely segregated from the first, deals with Spanel and his corporation and directs attention to points of similarity between the two men. Obviously, however, the article is less ingenuous in its treatment of Spanel than it is in its treatment of Novick. Novick and Spanel 623 are compared as natives of Russia, successful manufacturers of war products, and disseminators of political propaganda. One of Spanel's newspaper advertisements in praise of Henry Wallace is described as: "well expressing the attitude of some demagogues of the extreme left who regard the American citizen as a soulless lump to be fed, quartered, ordered and disciplined even as a dog. "A native of Russia and an admirer of the Soviet system might be pardoned in the error." This appears to be the strongest language and the most susceptible in the entire article of a defamatory meaning, although comment is made later of Spanel's possible motives in returning some of his corporation's profits to the United States Treasury. It does not directly say that plaintiffs are Communists or tools of Communists. Defendants argue, therefore, that only by innuendo can a libelous meaning be ascribed to the article. With this we cannot agree. In the law of libel, while it is true the innuendo may not be used to enlarge the words in an article beyond their natural meaning, it may and should be used to explain the meaning of the words used in the alleged libel. Payne v. Evening American Publishing Co., 267 Ill.App. 610. From a reading of the entire article including the headline, an ordinary reader could conclude and the innuendo is that there was little difference between Spanel and Novick; that one definitely consorted with Communists; that both expended much of their corporations' profits to disseminate political propaganda; and that Spanel as a native Russian regarded his fellow American citizens with the same attitude as the Communists themselves are alleged to regard them. We must evaluate the effect rather than the form of the language as a whole, for "`Positive assertion of a charge is not necessary to constitute a writing libelous; they may be made in the form of insinuation, allusion, irony, or questions, and the matter will be as defamatory as if asserted in positive and direct terms.'" Maclaskey v. Mecartney, 324 Ill. App. 498, 511, 58 N.E.2d 630, 637. We conclude, therefore, that an ordinary reader could understand the article to mean that Spanel is a Communist or a Communist sympathizer. It is not for us to say whether from our interpretation of the quoted passage and the balance of the article we believe the language characterizes Spanel as a Communist or a Communist sympathizer and whether it alleges his corporation is being used by Communists, because to do so would be to usurp the function of the jury. It is sufficient that we recognize that the article is capable of two meanings, one libelous and the other not. If the words are to be interpreted in the sense in which the newspaper readers would understand them, the meaning of the article must be submitted to a jury. "Where the words are ambiguous or equivocal in meaning, the question of the meaning to be ascribed to them is for the jury." Ogren v. Rockford Star Printing Co., supra, 288 Ill. 405, 413, 123 N.E. 587, 590. Defendants contend that the article in question was the utterance of political license; that a newspaper has the privilege and duty to comment editorially with respect to political issues and other matters of public interest; that when persons such as Spanel enter the arena of political discussion they cannot be heard to whine under the fury of counter-attack; that the birth of this action was founded upon the state of Spanel's thin skin. City of Chicago v. Tribune Co., 307 Ill. 595, 139 N.E. 86, 28 A.L.R. 1368, is cited as the bulwark in support of freedom of speech. This case is clearly distinguishable because the case involved a municipal corporation and the court held that all publications against it, excepting those advocating violence, are absolutely privileged. The court concededly did not pass upon the meanings of the publications involved. By their argument of privilege defendants are setting up an affirmative defense which is not before this court on a motion to dismiss. Harkness v. Chicago Daily News Co., 102 Ill.App. 162; Spanel v. Pegler, District Court of Conn., 926 F. Supp 70. 624 The judgment appealed from is reversed, and the cause is remanded to the District Court. LINDLEY, District Judge (dissenting in part). Whether it is libelous to accuse one of being a communist is to be decided according to the law of Illinois and, though the courts of that state have not directly passed upon the specific question, I have no quarrel with reasoning of the majority opinion. The word "communism" probably does not mean the same thing to everyone. I assume, however, that its ordinary connotation carries with it the idea of seeking to overthrow the Government of the United States by force and violence or trickery and to impose upon the people, by force or violence, if necessary to achieve the end, a form of totalitarian government. Therefore, I can persuade myself only that the majority rightfully concludes, in view of the pertinent Illinois decisions, that a charge of communism is beyond the pale of legitimate expression. I feel constrained, however, to disagree as to the conclusion that the ordinary reader could reasonably draw from the article in question the inference that it was intended to charge plaintiff Spanel with being a communist and plaintiff International Latex Corporation with being under the control of communists. Everything said or hinted about either plaintiff is contained in the following language: "The International Latex Company of Playtex Park, Dover, Del., has been running political arguments as paid advertisements. * * These have been New Deal preachments, and anti-Nazi, but, as far as my reading of them reveals, never anti-Communist nor hostile to totalitarianism, as such. * * * There are points of similarity between Novick of Electronic and the president of International Latex, whose name is Abraham N. Spanel. Like Novick, Spanel was born in Russia and, like Novick, he is diligently engaged in war production and would appear to have prospered enormously. His advertisements run two or three columns wide, the length of the page, in a national list of newspapers, a campaign suggesting a huge appropriation for political propaganda, and he is a rapturous advocate of Henry Wallace as an American political prophet. * * * To this end he has published at advertising rates on a national scale several eulogies of Wallace, ostensibly as `a public service,' including one by the ineffable Sen. Joe Guffey of Pennsylvania, * * * Another of Mr. Spanel's rhapsodies was a reprint of a column by a member of the Roosevelt newspaper following in Washington, which described Wallace as a champion and symbol of the `aspirations of the common man and the underdog.' This was a poetic construction well expressing the attitude of some demagogues of the extreme left who regard the American citizen as a soulless lump to be fed, quartered, ordered and disciplined even as a dog. A native of Russia and an admirer of the Soviet system might be pardoned in the error. Collier's recently published a laudatory personal history of Mr. Spanel, praising him for his invention and manufacture of pneumatic boats for jungle warfare and a pneumatic stretcher for the recovery of casualties, and for his foresight in laying up, before Pearl Harbor, a reserve supply of liquid latex, or pure rubber. He formerly had manufactured girles for women and baby pants. Collier's tells us that, like Gailmor, Spanel studied for the clergy. He is said to have returned voluntarily $1,500,000 of his profits to the Treasury, but we are not told whether he might have had to do this anyway, as many manufacturers must, under the renegotiation process. A war contractor thus could make patriotic virtue of legal necessity. We do know, however, that the advertising matter is entirely political and ideological, with no mention of any commercial product, and that it represents a lavish outlay of money by a corporation for political propaganda in the guise of public service, financed by an immigrant from Russia, who seems to admire Russia as a trustworthy national comrade of the United States, without reference to the record of Russia's past performances or examination of the Communist system." Whether these words are reasonably susceptible of the meaning attributed to them by plaintiff is, in Illinois, a question of law for the court. Payne v. Evening American *625 Pub. Co., 267 Ill.App. 610, cert. denied, 271 Ill.App. xxxii. And the motion to dismiss does not admit that the language of the article is susceptible of the interpretation attributed to it by plaintiffs; for the courts of that state have declared that it is well settled that a motion to dismiss will not be sustained if the words claimed to be libelous are not reasonably or fairly "capable of the construction" placed upon them by plaintiffs and that it is for the court to decide whether the publication is "reasonably capable" of the meaning ascribed to it. Kulesza v. Chicago Daily News, Inc., 311 Ill. App. 117, 35 N.E.2d 517, 521. So the specific question before the District Court and before this court upon review is whether the article quoted is reasonably susceptible of being interpreted by a reader as meaning that plaintiffs are charged with being communistic or communistic "fellow-travelers." I search the words in vain to find any statement or implication that Spanel is a communist or that he seeks unlawfully to overthrow the Government of the United States or that the International Latex Corporation is managed by or is under the control of communists. The article does not state that either plaintiff is a member of the communist party, a criminal, or engaged in any movement to overthrow the Government or in any course of action which would subject either of them to scorn or ridicule. Indeed, it seems to me, the article is susceptible of only one interpretation, merely that it is announcement of ideologies opposed to those promulgated by the plaintiffs in their paid advertisements. The author of the article evidently considered the paid advertisement of political doctrines unsound. Consequently he commented that plaintiffs have been running political advertisements which are anti-Nazi in character but, so far as he had observed, not anti-Communistic. He did say that Spanel was born in Russia; that he had been engaged in war production; that it seemed that he had prospered enormously; that he was a rapturous advocate of Henry Wallace; that he had been educated for the clergy; that he had been praised for his invention and manufacture of pneumatic boats for jungle warfare and a pneumatic stretcher for the recovery of casualties, and for his foresight in laying up, before the war, a reserve supply of liquid latex or pure rubber; that he had voluntarily returned $1,500,000 in profits to the United States Treasury; that the author was unadvised as to whether he had done this because required to do so under the renegotiation process; that the advertising matter criticized had to do entirely with political matters; that it was financed by an immigrant from Russia "who seems to admire Russia as a trustworthy national comrade of the United States, without reference to the record of Russia's past performances or examination of the Communist system." I think it is impossible to read into these words a charge of communism, of belief in a revolutionary proposal to overthrow this government by force or violence and by such means to impose another political system upon the American people. I do not believe any reader would or could be justified in drawing such a conclusion. Indulging the worst possible implications, I think no reader could reasonably infer anything libeling either plaintiff. One who seeks to enlighten the public through thought provoking advertisements should not be offended by public comment of those who refuse to be enlightened. Plaintiffs have voluntarily chosen to comment on controversial issues. The court should not permit them, by libel actions, to stifle those who honestly oppose their views and question their purposes and motives. Our Government was built and stands firmly upon the principle of free and full discussion of all political issues. I think plaintiffs failed to state a case. I would affirm the judgment. NOTES [1] For our purposes it is sufficient to speak of one article, for while the complaint alleges the publication of the same article in various newspapers, as evidenced by exhibit B, it differs from the article published in the "Chicago Herald-American" only in format and headline which was composed for the Chicago newspaper by defendant Ill. Publishing and Printing Co. [2] In Grant v. Reader's Digest Ass'n., 2 Cir., 151 F.2d 733, 735, the court in interpreting the law of New York regarding the subject of libel held that the difference between a Communist and a Communist sympathizer was one of degree only.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510561/	856 S.W.2d 249 (1993) Charles Lynn ROBBINS, Appellant, v. The STATE of Texas, Appellee. No. 09-90-240 CR. Court of Appeals of Texas, Beaumont. May 26, 1993. Will Gray, Houston, for appellant. Daniel Rice, Dist. Atty., Sharron S. Davidson, Kathleen Hamilton, Asst. Dist. Attys., Conroe, for State. Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ. OPINION ON REMAND BROOKSHIRE, Justice. In trial cause no. 90-08-00831-CR appellant, Charles Lynn Robbins, was convicted of the offense of kidnapping and was sentenced to 10 years confinement in the Institutional Division of the Texas Department of Criminal Justice. In trial cause no. 90-08-00832-CR appellant was convicted of the offense of aggravated sexual assault and was sentenced to 75 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant pleaded not guilty to both offenses but was found guilty on each by a jury. The court assessed punishment in both cases. These convictions were affirmed by this Court in Robbins v. State, 827 S.W.2d 626 (Tex. App.-Beaumont 1992).[1] 250 The appellant, Charles Lynn Robbins, filed a petition for discretionary review on both cases in the Texas Court of Criminal Appeals which was granted to determine whether unadjudicated acts of misconduct are admissible at the punishment phase of a non-capital trial under Tex.Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp.1993) after the legislative amendment thereto in 1989. The Court of Criminal Appeals held that since this Court's opinion was issued before the decision of the Court of Criminal Appeals in Grunsfeld v. State, 843 S.W.2d 521 (Tex.Cr.App.1992) the judgment of this Court would be reversed. Robbins v. State, 843 S.W.2d 570 (Tex.Crim.App.1992). The Court of Criminal Appeals then remanded the cause to this Court for reconsideration of our prior judgment in light of the Grunsfeld decision. The issue before the Texas Court of Criminal Appeals in Grunsfeld was to determine whether Article 37.07(3)(a) as amended, allows admission of unadjudicated extraneous offense evidence in the punishment phase of a trial on a non-capital offense. In Grunsfeld as in Hunter v. State, (Tex.App.-Fort Worth) (unpub.) (decided with, and as a companion case to Grunsfeld) each defendant was charged with the offense of aggravated sexual assault on a female and in each case at the punishment phase, testimony was admitted that the respective defendant had sexually assaulted other individuals but there was no final conviction of said assaults. Timely objections to that testimony were lodged by each defendant under Article 37.07(3)(a) as being inadmissible. In each case the defendants' mother testified that the defendant had not been previously convicted of a felony, thus establishing his eligibility for probation. The relevant portion of Article 37.07(3)(a) as amended provides as follows: Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged. (emphasis on portion added by amendment). After the Court of Criminal Appeals in Grunsfeld examined the legislative intent and history of the amendment in question and the term "prior criminal record," the court found evidence of extraneous unadjudicated offenses was improperly admitted. After finding error, the court noted that it would be reversible unless it could be determined beyond a reasonable doubt that the error made no contribution to the assessment of punishment. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989); Tex. R.App.P. 81(b)2. The Court of Criminal Appeals then affirmed the opinion of the Dallas Court of Appeals which had reversed the trial court in Grunsfeld, and reversed the opinion of the Fort Worth Court of Appeals in Jerred J. Hunter which had affirmed the trial court and remanded both cases to their respective trial courts for proceedings consistent with Tex. Code Crim.Proc.Ann. art. 44.29(b) (Vernon Supp.1993). In the case before us, the evidence shows that the complaining witness, (Complainant) encountered the appellant, (Robbins) late in the evening of July 31, 1990, at a lounge in Conroe, Montgomery County. Robbins invited Complainant to his house at about 1:30 a.m. (on August 1, 1990,) to which offer she agreed. Complainant, on a motorcycle, followed Robbins and his employee, Gene Buentello, to the appellant's house. Liquor was imbibed. Complainant danced with Robbins; they hugged and kissed, but when Robbins invited Complainant to spend the night with him, she refused. 251 After a conversation between Complainant, Robbins and Buentello, Robbins walked Complainant to her motorcycle again asking her to stay but she continued to refuse. She departed on her motorcycle but within a short time she returned to get directions from Robbins. This occurred at approximately 4:00 a.m. When Complainant returned, she found Robbins standing in his front yard. She turned the motorcycle off, left it in the street, and walked toward Robbins. She asked him for directions. He did not answer. Instead, he put his arms around her and would not release her. They continued to struggle and Robbins hit Complainant in the face until she fell to the ground. Then Robbins removed her shoes and her underwear, took his shorts off, and proceeded to have sexual intercourse with Complainant for approximately five minutes. He then took her into the house and made her disrobe and get into a shower. After she showered, Robbins threatened her if she did not cooperate by laying down on the bed with him. She attempted to escape and enlisted the assistance of Buentello, but he told her to shut up and sit down, that Robbins could have her killed. Robbins confirmed that she should listen to Buentello. Robbins then forced her to return to the bedroom and lie down with him. She attempted to escape a second time, but Buentello and Robbins caught her and forced her to return to Robbins' bedroom again. Buentello apparently then dressed and left. Robbins told Complainant that they would give him at least 15 minutes to return. Complainant became apprehensive and fearful for her life and told the appellant that she could not lie down on the bed because the blood from her nose and mouth was running down the back of her throat, choking her. She spent enough time in the bathroom to allow Robbins to fall asleep again. She then called 911, but could not convey the address of Robbins' house. By this time, it was 6:00 a.m. and was beginning to get light outside. She retrieved a sheet, wrapped it around her, and left the house. Upon leaving she saw some workers in the street who called an ambulance for her. Injuries to Complainant included a broken nose, her lower lip was punctured by her bottom teeth, a blood bruise on her temple, bruises and contusions about her jaw, and a laceration to the upper lip. An emergency room physician testified regarding these injuries. He also stated that he found dirt particles around the entrance to her vagina which was consistent with her having been sexually assaulted in the outdoors on the ground. He found no evidence of injuries which would be consistent with a motorcycle accident. Buentello confirmed the times, dates, and presence of Complainant at Robbins' house. One of the workers of whom Complainant had asked for help testified that she had stated that she had just been raped. A co-worker called their dispatcher who called the police. One officer testified that he noted clothing in the yard outside the house and clothing laying around inside the house, which included a bra in the window, and other clothing in the tub and shower. The State's Exhibits included more than 25 photographs and exhibits which were consistent with Complainant's testimony. There are several factors which distinguish the case before us from the Grunsfeld decision. In Grunsfeld, and the companion case of Hunter, neither appellant had any prior felony convictions and each applied for probation. In light of the prejudicial nature of the extraneous offense evidence, the Court of Criminal Appeals held that the jury was tainted by hearing the extraneous offense evidence. In the case before us the appellant has a history of prior felony convictions. Another distinguishing aspect is that the jury assessed punishment in Grunsfeld whereas in the case before us the trial court assessed appellant's punishment after findings of guilt by the jury. During the punishment phase, it was shown that Charles Lynn Robbins had been found guilty of misdemeanor assault in 1987; in 1989 he pleaded guilty to driving while intoxicated, and also in 1989 he was indicted for the felony offense of attempted murder but pleaded guilty to and was convicted 252 of the lesser included felony offense of aggravated assault. T.S., a female, testified that she had lived with appellant for approximately two months and there were instances of violence committed upon her by the appellant during this time. During 1985, on one occasion the appellant hit her in the face and broke her nose. He had also at that time beat her head on a concrete driveway and after T.S. enlisted the aid of appellant's parents, he became irate and beat on his mother. In fact, appellant had hit T.S. so many times during their relationship that she could not give a number. Appellant objected to this testimony at the outset under Tex.R.Crim.Evid. 608 relating to prior acts of misconduct. The objection was overruled by the court. No running objection was tendered to this evidence nor to any similar type of testimony. See Ethington v. State, 819 S.W.2d 854 (Tex.Crim. App.1991). Rule 608 is directed toward attacking the credibility of a witness. Ramirez v. State, 830 S.W.2d 827 (Tex.App.-Corpus Christi 1992, no pet.). This objection did not preserve Grunsfeld error for review on appeal. TEX.R.APP.P. 52. S.H. had been married to appellant for approximately six months and on one occasion after a fight broke out, appellant's mother told S.H. to hide outside, but appellant accosted both of them and attacked both women. S.H. testified that appellant was beating his mother so she tried to intercede. She testified she was beaten many times by appellant and described their sexual relationship during the marriage as "rape." No objection was made to this testimony. I.N., a school teacher, also testified that she was once engaged to the appellant and lived with him approximately six weeks. She testified that she moved out because he was so violent, that he had kicked her in her kidneys, bruised her head; he had beat her head against the border of a waterbed and in fact she had sustained bruises in different places on her body. No objection was made to this testimony. P.H., S.H.'s mother, went to the appellant's home to retrieve S.H. Appellant grabbed S.H. by the throat and tried to shove P.H., her mother, out the door. P.H. eventually was able to leave but she bruised her back and her arm in the process. Appellant lodged no objection to this testimony. The appellant called one Walter Quijano, a clinical psychologist, employed on a contract basis for Montgomery County Adult Probation Department who testified that he had worked with appellant, Charles Lynn Robbins. He testified that the appellant was initially referred to him for help with his problems with assault and anger which eventually turned into assisting him with his addictions. Dr. Quijano noted a relationship between his substance abuse and his assaultive behavior, noting a correlation with abuse of alcohol, valium, and marijuana. The doctor also noted that the use of alcohol, valium, and/or marijuana would reduce appellant's inhibitions and sense of control and made assaults more probable. The appellant initially did well in abstaining from alcohol, but Dr. Quijano discovered he was on valium which is contra-indicated in assaultive people. Dr. Quijano also testified that these substances can trigger "aggressor substance induced assault." In the case of the appellant it was extremely difficult to treat him over the long run because initial abstention from alcohol by the appellant was replaced by the use of marijuana. The doctor stated it "is difficult to understand if one were already on probation." It was the doctor's opinion that if the appellant could abstain from alcohol, valium, and marijuana, then the likelihood that "the assaultive conduct that has gotten him here today" would be reduced and even minimized if abstention were assured. Thus the defense witness introduced evidence of the extraneous offenses. It was also the doctor's opinion that if the addiction was controlled, appellant would be a good candidate for rehabilitation, and that the Texas Department of Corrections has the proper facilities. But the doctor could not predict how long it would take to actually rehabilitate the appellant. The doctor opined that being in the penitentiary and receiving psychological 253 treatment would be the most beneficial things that could happen to appellant. On cross-examination by the State's attorney, Dr. Quijano testified that the appellant was referred to him in September of 1989 by the defense lawyer and then later a referral came through the probation process. The doctor stated that September of 1989, was "before he went to court for I think the third or second or third offense. He was already on probation, and there was another charge, and then before he went to court, he was referred to me." The doctor testified that his findings were based upon the history given to him by the appellant and that appellant had assaulted three or four other women. Significant and crucial is the factor that the appellant engaged the doctor initially and called the doctor to the stand. The doctor counseled the appellant about any assaults, and whether appellant was sober. The doctor discovered that alcohol or some other substance was always involved. After appellant relapsed, the doctor called in one Dr. Davis to develop a stricter management plan. Dr. Quijano also testified that if the appellant had not been under the influence of alcohol or drugs at the time of the offense for which he was on trial, then an indication would exist that appellant was exhibiting socio-pathic behaviorbeing a person's propensity to repeat violations of the law, violations of the rights of others, inability to learn from experience, and inability to learn from past punishments. Socio-pathic behavior would include an inability to feel remorse over one's actions, but if the remorse is there, it is almost always as a result of being caught. But that type of remorse does not lead to behavior change. The doctor also testified that the incident for which he was convicted was not related to him by the appellant. This concealment meant that the prognosis was not good for the appellant. The doctor opined that appellant apparently was continuing to engage in the activity for which he was being treated "[s]o there is something ticking in there that ismust be very difficult to control because the treatment, psychological treatment, medical treatment, the threats of prison do not seem to be sufficient to control the behavior." This is expert evidence from the defense's doctor. Assuming, arguendo, that the objection to the testimony of S.H. was legally sufficient, the same evidence was tendered to the court by the appellant through the testimony of Dr. Quijano, the witness for the defense. Dr. Quijano testified that the appellant had a history of assaultive type behavior on women and stated that there were at least four instances given him by the appellant. It is settled law that any error in admission of evidence is cured when the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507 (Tex.Crim.App.1984). There are two exceptions to the requirement for a contemporaneous objection, the first being the running objection. Ethington v. State, 819 S.W.2d 854 (Tex.Crim. App.1991). The other exception allows defense counsel to lodge a valid objection to all testimony he deems objectional at one time out of the jury's presence. Ethington, 819 S.W.2d at 858. The appellant did not request a running objection from the Court nor did appellant request an in limine type hearing. Appellant's brief is directed toward the single issue of the trial court's having allowed evidence of unadjudicated offenses before the court during the punishment phase of trial. Appellant's brief is grounded on the decision of Grunsfeld, 843 S.W.2d at 521, exclusively, and the issue of the trial court having admitted in a bench proceeding evidence of the extraneous offenses. We have noted that appellant did not preserve any error at the trial court level when the first witness proceeded to testify about an extraneous offense. No further objections were lodged against the remaining three witnesses who testified regarding other extraneous offenses. We find that appellant did not preserve error at the trial court level; therefore, this Court has nothing to review. Any error presented *254 at trial must be accompanied with a timely and specific objection, and the objection at trial which differs from the complaint on appeal preserves nothing for review. Sterling v. State, 800 S.W.2d 513 (Tex.Crim.App.1990). Dr. Quijano's extensive, detailed testimony was proffered by the defense. Also unadjudicated extraneous offense testimony was given by three witnesses without objection from the appellant. Hence, waiver resulted. We will affirm the conviction and sentence of the trial court below. AFFIRMED. BURGESS, Justice, concurring. I concur in the result. I write only to clarify my previous position, Robbins, 827 S.W.2d at 631. In that dissent, I urged error and then could not, beyond a reasonable doubt, find harmless error. Obviously the situation has changed. Now the court has found no error because the proper objection was not made to the evidence. Had the majority reached this conclusion originally, this remand would not have been required. Consequently, I concur. NOTES [1] This Court also affirmed a revocation of appellant's probation for aggravated assault in trial cause no. 89-97-603-CR. All three causes had been consolidated under no. 09-90-240-CR. No issue as to extraneous offenses being admitted at the punishment stage was raised concerning the revocation and petition for discretionary review by the Texas Court of Criminal Appeals was refused; therefore, that case is not before this Court for review.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510598/	148 N.J. Super. 448 (1977) 372 A.2d 1139 MURIEL NOCHENSON, PLAINTIFF-APPELLANT, v. ALVIN NOCHENSON, DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued March 15, 1977. Decided April 5, 1977. Before Judges LYNCH, MILMED and ANTELL. Mr. Francis W. Donahue argued the cause for appellant (Messrs. Skoloff & Wolfe, attorneys). Mr. Cyrus J. Bloom argued the cause for respondent. 449 PER CURIAM. On April 16, 1975 a pendente lite consent order was entered herein which provided, among other things, for support payments by defendant to plaintiff. By letter opinion dated December 9, 1976 the trial judge determined to award defendant a judgment of divorce on his counterclaim based upon plaintiff's extreme cruelty and adultery. Following the publication of Mahne v. Mahne, decided by this court January 28, 1977, 147 N.J. Super. 326, defendant moved "for an Order vacating so much of the Order entered herein on April 16, 1975 as provides for support or maintenance pendente lite for plaintiff's benefit." That motion was granted and an order to that effect was signed March 10, 1977. Notice of appeal from "the letter opinion of the Superior Court, Chancery Division" and the order of March 10, 1977 was filed March 10, 1977 by the plaintiff.[1] On this application plaintiff seeks a stay of the order of March 10, 1977. The motion is granted. In modifying the order of April 16, 1975 the trial judge concluded that Mahne v. Mahne, supra, held that in no instance may alimony be awarded to a wife found guilty of adultery. While dicta in Mahne might be so construed, the court cited "The Final Report of the Divorce Law Study Commission," prior to adoption of the Divorce Act of 1971 to the effect that "fault, where so asserted as a ground for relief, will be a proper consideration for the judiciary in dealing with alimony and support," and we noted that the Statement by the Commission was adopted with approval in Chalmers v. Chalmers, 65 N.J. 186, 194, n. 4 (1974) (Emphasis supplied). Thus, the holding in Mahne went no further than accepting fault as a "consideration" or factor in determining the grant or denial of alimony. In applying that rule to the facts and circumstances in Mahne we held that no alimony 450 should have been awarded to the wife. We refrained from spelling out the lurid details of the adultery committed while the husband and wife were living together because we did not consider such exposition as within the bounds of propriety. Nor did we recount the contents of certain tapes of conversations between the wife and the paramour wherein the wife disdained the gifts, such as furs, which the husband had bestowed on her. We need say no more except that we concluded that the equities in Mahne precluded the award of alimony to the former wife. Accordingly, the order of the trial judge filed March 10, 1977 is stayed. The matter is remanded to the trial court for a plenary hearing and making of findings of fact and conclusions of law on all issues, including all factors to be considered on the issue of alimony, in accordance with N.J.S.A. 2A:34-23, as well as other equitable considerations that may be appropriate. Said findings and conclusions are to be filed with the clerk of this court on or before May 2, 1977. We note that the finding in the trial judge's letter opinion that he was in "agreement with the defendant's summation of the evidence submitted at the trial" is not an adequate finding of fact. Cf. Van Realty, Inc. v. Passaic, 117 N.J. Super. 425, 429 (App. Div. 1971); Benjamin Moore & Co. v. Newark, 133 N.J. Super. 427 (App. Div. 1975); Piscataway Assoc., Inc. v. Piscataway Tp., 139 N.J. Super. 276 (App. Div. 1976). We retain jurisdiction. NOTES [1] Since the order below was interlocutory there should have been a motion for leave to appeal. We consider it to have been made and it is granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510601/	148 N.J. Super. 278 (1977) 372 A.2d 634 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STANLEY ROBINSON, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued March 1, 1977. Decided March 17, 1977. 279 Before Judges MATTHEWS, SEIDMAN and HORN. Ms. Jane G. Kleinfeld, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney), Mr. Donald W. Peppler, Jr., Assistant Prosecutor, argued the cause for respondent (Mr. James M. Coleman, Jr., Monmouth County Prosecutor, attorney). Mr. Robert E. Rochford, Deputy Attorney General, argued the cause for the Attorney General of New Jersey, amicus curiae (Mr. William F. Hyland, Attorney General, attorney). The opinion of the court was delivered by MATTHEWS, P.J.A.D. Defendant appeals from an order entered on March 12, 1976 denying his motion for transfer to a drug program. R. 3:21-10(b) (1). Defendant entered a plea of guilty to three counts of forgery, N.J.S.A. 2A:109-1, and on February 7, 1975, pursuant to a plea agreement, was sentenced to three concurrent terms of five to seven years in State Prison. While his appeal was pending defendant moved pro se on April 14, 280 1975 for reduction of sentence pursuant to R. 3:21-10(a). The trial judge denied the motion because the case was then pending before this court. R. 2:9-1(a). On August 29, 1975 defendant filed a second motion pro se to reduce his sentence under R. 3:21-10(a), which was regarded as a motion for transfer to a drug treatment program under R. 3:21-10(b) (1). On October 16, 1975, after a hearing in which defendant was represented by counsel, the motion was denied without prejudice, because defendant had not complied with the documentation requirements of subsection (c). On November 6, 1975 this court affirmed defendant's conviction. On January 16, 1976 defendant filed a third motion pro se to reduce sentence pursuant to R. 3:21-10(a), which again was considered to be a motion for transfer under subsection (b). The motion was denied on March 12, 1976. State v. Robinson, 140 N.J. Super. 459 (Law Div. 1976). The trial judge noted that although the present motion was barred by the 20-day limitation under R. 3:21-10(a), it was "obviously within the `at any time' language of R. 3:21-10(b), if `at any time' is to be read literally." 140 N.J. Super. at 464. However, the judge found that a literal construction would seriously impair the stability of "the whole penal structure": * * * Trial courts would be free to tinker with validly imposed sentences at any time during the continuation of the custodial portion thereof. Finality, the public policy of an end to court concern with a particular case, would be meaningless. Motions to change a sentence could be brought years after the judgment of conviction. Theoretically, a motion would be tenable even after denial of parole release. Attempts to "judge shop" in a post-conviction sense would be fostered. Endless filing of groundless motions would be encouraged. [at 468-469] He found that expanding the 60-day period would constitute "an attempt through the rule-making power to change substantive law a procedure condemned in Winberry v. Salisbury," 281 and would infringe upon the executive's authority to pardon. At 469-470. He concluded that in order to avoid the unconstitutional and undesirable results noted above, the rule should be interpreted as "appl[ying] to the exceptional case of the addict, but it [the motion] must be made `at any time' within the fundamental 60-day period of limitation." At 472-473. Since defendant had not filed his motion within 60 days of the original sentence or within 20 days of this court's affirmance of the sentence, the trial judge denied the motion as being out of time. At 475. This appeal followed, and because of the importance of the question presented we have granted leave to the Attorney General to appear and file a brief, amicus curiae. Defendant and the Attorney General argue that the trial judge erred in that (1) the words "at any time" in R. 3:21-10(b) were meant to apply literally; (2) such a construction does not unconstitutionally extend the jurisdiction of sentencing courts, but rather creates an appropriate procedure for the exercise of the inherent jurisdiction conferred upon the Superior Court by N.J. Const. (1947), Art. VI, § III, par. 2; (3) a literal interpretation would also not unconstitutionally infringe upon the executive's authority to pardon since, although some functions of the judiciary and the executive must overlap to a certain degree, the act of reducing a sentence is part of the judicial function of rendering a judgment and is, therefore, distinguishable from the executive's power of clemency which abridges the enforcement of the judgment, and (4) a literal reading of the rule would not lead to the instability of the whole penal structure since the procedural requirements set forth in R. 3:21-10(c) and the criteria set forth in State v. Davis, 68 N.J. 69, 86 (1975), adequately insure against that result. Under the common law the authority of a trial judge to modify a criminal sentence terminated with the expiration of the court term in which the sentence was originally imposed. State v. Kowalczyk, 3 N.J. 231, 233 (1949). That 282 principle was first embodied in L. 1898, c. 237, § 55, which provided that a court would have the power to modify a sentence "at any time during the term in which the judgment is entered." However, due to the difficulties which resulted in implementing that rule, see State v. Kowalczyk, 3 N.J. at 233, the Legislature enacted L. 1921, c. 236, § 1, which provided for a standardized period of six months from the date of judgment within which sentence modification could be made. Subsequently, the Legislature enacted L. 1928, c. 231, which restricted the period of modification to 30 days from the date of judgment. R.S. 2:190-15. Following the adoption of the 1947 Constitution R. 2:7-13 was promulgated extending the time limitation for modification of sentence from 30 to 60 days. N.J. Const. (1947), Art. VI, § II, par. 3. The trial judge indicated that this was a proper exercise of the judicial rule-making power only because "60 days would be well within the concept of `before the end of the term' of the common law and the maximum of six months established at one time by the Legislature." 140 N.J. Super. at 467. In 1967, R. 3:7-13(a) was amended. While the 60-day limitation period for filing was retained, it provided that an order changing a custodial sentence to permit transfer to a narcotic treatment center could be made "at any time." As part of the 1969 revision, subsections 13(a) and (b) were redesignated as R. 3:21-10 without significant changes. In 1975, however, the rule was again amended, removing the exception for drug transfer from subsection 10(a) and placing it in subsection 10(b) with two new exceptions for illness and joint application. Subsection 10(c) was also added, which now provides, in pertinent part: A motion filed pursuant to paragraph (b) hereof shall be accompanied by supporting affidavits and such other documents and papers as set forth the basis for the relief sought. A hearing need not be conducted on a motion filed under paragraph (b) hereof unless the court, after review of the material submitted with the motion papers, concludes that a hearing is required in the interest of justice. * * * 283 There can be no question as to whether the phrase "at any time" was meant to be interpreted literally. The report of the New Jersey Supreme Court's Committee on Criminal Practice, 98 N.J.L.J. 321 (1975), states in that regard: * * The Committee determined that while the judiciary has not exercised the power in the past, the courts have the inherent power, subject to any specific limitations set down by the Supreme Court, to reduce or change a sentence at any time. Accordingly, the Supreme Court can amend the court rule to extend the time limitation for reduction or change of sentence without limit. [98 N.J.L.J. at 43; emphasis supplied] Moreover, in two recent cases it has been indicated that a literal interpretation of the language is to be employed. See e.g., State v. Tumminello, 70 N.J. 187, 192, n. 1 (1976); State v. Williams, 139 N.J. Super. 290, 301 (App. Div. 1976), certif. granted 70 N.J. 524 (1976). In concluding that the power to modify a sentence is jurisdictional and therefore a matter of substantive law, the trial judge relied on a number of cases in the federal sector where applications for changes in sentence have been made under Fed. R. of Crim. Proc. 35 (which provides for a time limitation period of 120 days): * * * Under the federal system once the specified time period after imposition of sentence has run, the court has lost jurisdiction over the subject matter and cannot entertain the application. United States v. Robinson, 457 F.2d 1319 (3 Cir.1972); United States v. Gorman, 431 F.2d 632 (5 Cir.1970); United States v. Ellenbogen, 390 F.2d 537 (2 Cir.1968), cert. den. 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). [140 N.J. Super. at 469]. However, these cases are inapposite because, unlike the situation in the federal sphere, both our Supreme Court and the Superior Court obtain jurisdiction directly from the Constitution. N.J. Const. (1947), Art. VI, § I, par. 1. Moreover, as noted previously, our Supreme Court has explicit constitutional authorization to make rules governing practice and procedure. N.J. Const. (1947), Art. VI, § II, par. 3. 284 Accordingly, since the Law Division has inherent jurisdiction to hear criminal matters, N.J. Const. (1947), Art. VI, § III, pars. 2 and 3, R. 3:21-10(b) merely provides an appropriate procedure for sentencing in the exercise of that jurisdiction. See Winberry v. Salisbury, 5 N.J. 240, 247-48 (1950), cert. den. 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950). The fact that R. 3:21-10(b) may have an impact upon the substantive result makes it no less of a rule of procedure on that account. Busik v. Levine, 63 N.J. 351, 364, 367 (1973): The constitutional grant of rule-making power as to practice and procedure is simply a grant of power; it would be a mistake to find in that grant restrictions upon judicial techniques for the exercise of that power, and a still larger mistake to suppose that the grant of that power impliedly deprives the judiciary of flexibility in the area called "substantive" law. [63 N.J. at 363] In State v. Haines, 18 N.J. 550, 558-559 (1955), the court rejected the claim that then R.R. 3:3-10, which extended the term of a grand jury beyond that date it would ordinarily cease to function, was an attempt to make rules governing substantive matters, finding that the subject matter was clearly procedural within the rule-making power of the Supreme Court pursuant to N.J. Const. (1947), Art. VI, § II, par. 3. Cf. New Shrewsbury v. Block 115, Lot 4, 74 N.J. Super. 1, 8-9 (App. Div. 1962), finding that the rule providing for the time period within which to make a motion to reopen judgments is procedural. Nor do we find the rule to constitute an infringement on the executive's power to pardon, since that power is clearly distinguishable from the judiciary's power to modify sentences. As was noted in United States v. Benz, 282 U.S. 304 (1930): To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment. To 285 reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance. [282 U.S. at 311, 51 S.Ct. at 115] See also, United States v. Ellenbogen, 390 F.2d 537, 540 (2 Cir.1968); Report of Supreme Court's Committee on Criminal Practice, 98 N.J.L.J. at 343. We find the trial judge's concern with respect to the risk the rule presents in impairing the stability of the whole penal structure also to be unfounded. R. 3:21-10(c) requires the submission of supporting documentation and review before a trial judge need consider granting a hearing on the motion. Trial judges are required to be particularly circumspect in their consideration of such applications in this regard. State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976): Although R. 3:21-10(b) evidences a policy to facilitate rehabilitation of drug addicts in the hope that they may be restored to good health and become useful citizens in the community, State v. Davis, 68 N.J. 69, 84-85 (1975), such a policy competes with the policy to protect our citizens against all violators, whether they are repeating violators or not. The welfare of our citizens should be first and foremost. This therefore calls upon trial judges to be particularly circumspect in their consideration of such applications. As stated in State v. Davis, supra at 86: "The ultimate issue for determination is whether the purposes for which the custodial sentence * * * might reasonably be continued outweigh the interests sought to be served by transfer to a narcotics treatment center." [at 163] In addition, a judge to whom such an application is made must consider whether there is present addiction, and whether the purposes for continued custody outweigh the interests sought to be served by transfer to a drug treatment facility. State v. Davis, above, 68 N.J. at 86; State v. Williams, above, 139 N.J. Super. at 299-300; State v. McKinney, above, 140 N.J. Super. at 163-64. The order of the Law Division is reversed and the cause remanded for further proceedings in conformance with this opinion.	01-03-2023	10-30-2013

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