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https://www.courtlistener.com/api/rest/v3/opinions/1626624/ | 169 N.W.2d 270 (1969)
184 Neb. 537
STATE of Nebraska, Appellee,
v.
Nathaniel GOODWIN, Jr., Appellant.
No. 37138.
Supreme Court of Nebraska.
June 27, 1969.
*271 Paul E. Watts, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
SPENCER, Justice.
Defendant was convicted of possession of a fire bomb and carrying a concealed *272 weapon. He was fined $100 for carrying the concealed weapon and was sentenced to 1 to 3 years in the Nebraska Penal and Correctional Complex for possession of a fire bomb.
On the evening of March 5, 1968, three officers in a police cruiser were watching for possible attempts to start fires on the north side of Omaha when they were alerted to be on the lookout for a car which had been seen in the vicinity of an earlier fire. They observed a car answering the description given and immediately started to pursue it. The car pulled to the curb and came to a stop when the cruiser was approximately 50 feet away. The cruiser drove to within 4 to 5 feet of the stopped car. During that interval the officers observed the right rear door of the car come partially open and a brown paper sack come out of the car. One of the officers also observed the throwing of a silver object from the front window on the driver's side. After the cruiser stopped, the defendant, who was the owner and driver of the car, came back to the cruiser.
The sack which was found near the car contained three liquor bottles filled with a liquid described as ethylene dichloride and diethyl lead, a highly inflammable and explosive material. The silver object was identified as a bottle with a rag sticking out of the top, filled with the same liquid, which the officers testified smelled like gasoline and which they described as a Molotov cocktail. The officers also found a large number of rocks on the floor board on both sides of the rear seat.
Defendant testified that he had spent the early evening of March 5, 1968, with his girl friend, and about 11 p. m. went to Twenty-fourth and Lake Streets to have a beer. Shortly thereafter he picked up a friend who lived near him and another young man, both of whom rode in the front seat. He also picked up three other young men who asked for rides and who got into the back seat. The defendant, who was 26, was the oldest of the occupants of the car. The two boys in the front seat were 19 and 16, while those in the back were from 18 to 22. Defendant testified that they rode around awhile and the only time they stopped was when the police stopped them. This was shortly after 12 o'clock. Defendant denied any knowledge of the sack of bottles found next to the car or the rocks found in the car. He also testified that he did not see anything thrown from the car. He was positive that none of the items were in the car before he picked up the other occupants. None of these occupants were called to testify. Defendant testified he did not try to get them because they were not being prosecuted.
When the car was searched at the police station a loaded pistol was found in the locked glove compartment. Defendant testified it belonged to his father; had been in the car for over a year; and that he carried it because he had been abused a couple of times when he made deliveries on his part-time job.
The assignments of error we deem pertinent herein are as follows: (1) The State failed to prove beyond a reasonable doubt physical or constructive possession of a fire bomb; (2) a weapon locked in a glove compartment is not within the ambit of section 28-1011.19, R.S.Supp., 1967; and (3) the court erred in restricting defendant's explanation as to why he had a loaded weapon locked in the glove compartment of his car.
In a criminal case this court will not interfere with a verdict of guilty based upon the evidence unless it is so lacking in probative force that we can say as a matter of law that it is insufficient to support a finding of guilt beyond a reasonable doubt. Phillips v. State, 154 Neb. 790, 49 N.W.2d 698.
Section 28-1011.17, R.S.Supp., 1967, so far as material herein, provides as follows: "It shall be unlawful for any person to * * * possess * * * or manufacture any bomb, bombshell, grenade, bottle, or other such container containing an explosive *273 substance, such as but not limited to black powder bombs and Molotov cocktails; * * *."
Section 28-1011.19, R.S.Supp., 1967, provides: "The presence in an automobile other than a public vehicle of any weapon, instrument or substance referred to in sections 28-1011.14 to 28-1011.19 shall be prima facie evidence that it is in the possession of, and is being carried by, all persons occupying such automobile at the time such weapon, instrument or substance is found, except: (1) If such weapon, instrument or instrumentality is found upon the person of one of the occupants therein, or (2) if such weapon, instrument or substance is found in an automobile operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his trade, then such presumption shall not apply to the driver."
The prima facie evidence of possession under the circumstances herein, as well as the rocks in the car, were certainly sufficient to pose a jury question. However, we also have direct evidence that the Molotov cocktail was thrown from the defendant driver's window immediately before defendant was apprehended. This case, while analogous, is much stronger than Smith v. United States (8th Cir., 1964), 331 F.2d 265, in which a highway patrolman, while 300 feet behind a car he was pursuing, saw an object moving across the highway which later turned out to be a sea bag containing burglary tools. The patrolman dodged the object and continued the chase, observing numerous objects fluttering in the air. He concededly did not see the object thrown from the car. The court there said: "The jury's conclusions that the appellant and his cohorts in the fleeing car threw the damaging evidence consisting of the sea bag with its tools, concededly used in the burglary, into the path of the pursuing officer and that they threw the checks, currency and deposit slips from the Altoona Bank out of the car as they fled in front of the officer, are parallel inferences deduced from uncontroverted evidence. * * * The evidence against the appellant is, of course, circumstantial, but it is also very convincing and we hold it to be sufficient to justify the jury's conclusion that the appellant was one of those who participated in the burglary of the Altoona Bank."
Is a loaded pistol locked in a glove compartment concealed on or about the person of the driver? We determine that it is. The words "concealed on or about the person" mean concealed in such close proximity to the driver as to be convenient of access and within immediate physical reach. As we said in Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710, a weapon is concealed when it is hidden from ordinary observation and is readily accessible on his person or in a motor vehicle operated by the defendant. In that case the arresting officer opened the back door of defendant's car and found two loaded revolvers on the back seat.
In Phillips v. State, 154 Neb. 790, 49 N.W.2d 698, two loaded revolvers found under the right front seat were determined to be on or about the defendant's person. We there said: " * * * section 28-1001, R.R.S.1943, containing exceptions having no application here, makes it a felony to carry a revolver concealed on or about his person. In Bright v. State, 125 Neb. 817, 252 N.W. 386, a conviction was affirmed where the evidence disclosed that defendant was carrying a revolver concealed but readily accessible either in a motor vehicle operated by him or on his person while operating the same. The weight of authority sustains such position."
While the question is no longer an open one in this jurisdiction there is no real consistency in the cases from other jurisdictions as to what constitutes "on or about the person." The reasoning in the case of City of Cleveland v. Betts, 107 Ohio App. 511, 148 N.E.2d 708, is particularly pertinent herein because it also involved a loaded pistol in a locked glove compartment. The Ohio court there said: "The defendant's *274 contention, that a concealed weapon in a glove compartment of an automobile, then in his charge and being driven by him, is not concealed on or about his person cannot be supported. The fact that the glove compartment was locked when the officers searched the automobile is of no moment. The defendant was in complete control of the situation with the key at his immediate command. Whether the compartment was locked or unlocked was a matter of the defendant's choice. The presence of defendant's revolver within easy reach was clearly `on or about' his person."
Section 28-1001, R.R.S.1943, provides as follows: "Whoever shall carry a weapon or weapons concealed on or about his person such as a revolver, pistol, bowie knife, dirk or knife with a dirk blade attachment, brass or iron knuckles, or any other dangerous weapon, shall upon conviction be fined in any sum not exceeding one thousand dollars or imprisoned in the Nebraska Correctional and Penal Complex not exceeding two years; Provided, however, if it shall be proved from the testimony on the trial, or at a preliminary hearing of such case that the accused was, at the time carrying any weapon or weapons as aforesaid, engaged in any lawful business, calling or employment, and the circumstances in which such person was placed at the time aforesaid were such as to justify a prudent person in carrying the weapon or weapons aforesaid, for the defense of his person, property or family, the accused shall be acquitted or discharged."
The last question presented is whether defendant was within the exception stated above. Defendant testified that he had worked for the Union Pacific Railroad Company since 1965 as a chair car attendent, but did not work steadily because he was still on the extra board. He supplemented his income by working for a Mr. Paul who operated a 24-hour delivery service. He worked erratic hours on call. However, he testified he was not working at the time in question, and that he did not cart people around when he was on duty. After this testimony on direct, defendant attempted to explain the presence of a gun in the car. Some of this evidence was excluded. The pertinent record is as follows: "Q. Now, on this gun, you did have a gun in the glove compartment? A. Yes. Q. It was loaded? A. Yes. Q. No question about that, is there? A. No. sir. Q. When did you put the gun there? A. Oh, about a year ago. Q. About a year ago? A. Yes. Q. And why did you have a gun in the car? A. For the purpose of working at the delivery service and I needed protection. Q. Why do you say you needed protection? A. Because I had been abused a couple times by different guys on the streets. Q. You had been abused? What do you mean? A. Threatened a couple times. MR. LEAHY: Wait. Your Honor, at this point I will object for the reason that I feel that this is, without further foundation, self-serving. MR. WATTS: Your Honor, certainly the defendant is allowed to tell why he was in possession of a gun. As his defense he can say why he had the gun. MR. LEAHY: My objection is that there is certainly a lack of proper foundation at this point for that question. THE COURT: Sustained. BY MR. WATTS: Q. How long did you say you were working for Paul's? A. Right at two years, about a year and a half. Q. During the course of your deliveries and while you were working for Mr. Paul, on any occasions during the 18 months up to March 5, 1968, did you have any difficulties while delivering for him by people attacking you? MR. LEAHY: At this point I will again object until it is established that this defendant was at the time that he was found with this weapon performing some duty on a particular mission for his employer. Then I will object that this is incompetent, irrelevant, and immaterial. THE COURT: Sustained. BY MR. WATTS: Q. You weren't working when you were arrested, were you? A. Right, sir. Q. The area north of Cuming between 16th and 42nd, how would you characterize the area? BY MR. LEAHY: To which the State will object *275 for the same reason: it's incompetent, irrelevant, and immaterial. THE COURT: Sustained."
The defendant then made an offer of proof to the effect that if the witness had been permitted to testify he would testify that he had been attacked while making a delivery; that the area was highly volatile; and that he was carrying a gun for his own protection. By the defendant's own testimony he was not in the course of any employment at the time in question. The objection was properly sustained.
To be within the exception provided by section 28-1001, R.R.S.1943, one must be engaged in a lawful business, calling, or employment, and the circumstances must be such as to justify a prudent person in carrying the weapon for defense of his person, property, or family.
For the reasons stated, we conclude that defendant's assignments of error are without merit. The judgment is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/104585/ | 335 U.S. 1 (1948)
SHAPIRO
v.
UNITED STATES.
No. 49.
Supreme Court of United States.
Argued October 23, 1947.
Decided June 21, 1948.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
*3 Bernard Tomson argued the cause for petitioner. With him on the brief were Menahem Stim and Michael C. Bernstein.
Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Quinn, Philip Elman, Robert S. Erdahl and Irving S. Shapiro.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
Petitioner was tried on charges of having made tie-in sales in violation of regulations under the Emergency Price Control Act.[1] A plea in bar, claiming immunity from prosecution based on § 202 (g)[2] of the Act, was *4 overruled by the trial judge; judgment of conviction followed and was affirmed on appeal. 159 F.2d 890. A contrary conclusion was reached by the district judge in United States v. Hoffman, post, p. 77. Because this conflict involves an important question of statutory construction, these cases were brought here and heard together. Additional minor considerations involved in the Hoffman case are dealt with in a separate opinion.
The petitioner, a wholesaler of fruit and produce, on September 29, 1944, was served with a subpoena duces tecum and ad testificandum, issued by the Price Administrator under authority of the Emergency Price Control Act. The subpoena directed petitioner to appear before designated enforcement attorneys of the Office of Price Administration and to produce "all duplicate sales invoices, sales books, ledgers, inventory records, contracts and records relating to the sale of all commodities from September 1, 1944 to September 28, 1944." In compliance with the subpoena, petitioner appeared and, after being sworn, was requested to turn over the subpoenaed records. Petitioner's counsel inquired whether petitioner was being granted immunity "as to any and all matters for information obtained as a result of the investigation and examination of these records." The presiding official stated that the "witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept *5 pursuant to MPRs 271 and 426."[3] Petitioner thereupon produced the records, but claimed constitutional privilege.
The plea in bar alleged that the name of the purchaser in the transactions involved in the information appeared in the subpoenaed sales invoices and other similar documents. And it was alleged that the Office of Price Administration had used the name and other unspecified leads obtained from these documents to search out evidence of the violations, which had occurred in the preceding year.
The Circuit Court of Appeals ruled that the records which petitioner was compelled to produce were records required to be kept by a valid regulation under the Price Control Act; that thereby they became public documents, as to which no constitutional privilege against self-incrimination attaches; that accordingly the immunity of § 202 (g) did not extend to the production of these records and the plea in bar was properly overruled by the trial court. 159 F.2d 890.
It should be observed at the outset that the decision in the instant case turns on the construction of a compulsory *6 testimony-immunity provision which incorporates by reference the Compulsory Testimony Act of 1893. This provision, in conjunction with broad record-keeping requirements, has been included not merely in a temporary wartime measure but also, in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.[4]
*7 It is contended that a broader construction of the scope of the immunity provision than that approved by the Circuit Court of Appeals would be more consistent with the congressional aim, in conferring investigatory powers upon the Administrator, to secure prompt disclosure of books and records of the private enterprises subjected to OPA regulations. In support of this contention, it is urged that the language and legislative history of the Act indicate nothing more than that § 202 was included for the purpose of "obtaining information" and that nothing in that history throws any light upon the scope of the immunity afforded by subsection (g). We cannot agree with these contentions. For, the language of the statute and its legislative history, viewed against the background of settled judicial construction of the immunity provision, indicate that Congress required records to be kept as a means of enforcing the statute and did not intend to frustrate the use of those records for enforcement action by granting an immunity bonus to individuals compelled to disclose their required records to the Administrator.
*8 The very language of § 202 (a) discloses that the record-keeping and inspection requirements were designed not merely to "obtain information" for assistance in prescribing regulations or orders under the statute, but also to aid "in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder."[5]
The legislative history of § 202 casts even stronger light on the meaning of the words used in that section. On July 30, 1941, the President of the United States, in a message to Congress, requested price-control legislation conferring effective authority to curb evasion and bootlegging.[6] Two days later the Price Control Bill was introduced in the House by Representative Steagall, and referred to the Committee on Banking and Currency.
As introduced, and as reported out of the Committee on November 7, 1941, the bill included broad investigatory, record-keeping, licensing, and other enforcement powers to be exercised by the Administrator.[7] While it *9 was before the House, Representative Wolcott on November 28, 1941, offered as a substitute for § 201 a series of *10 amendments, one of which authorized the Administrator "to subpena documents and witnesses for the purpose of obtaining information in respect to the establishment of price ceilings, and a review of price ceilings."[8] This amendment was adopted. Thereupon Representative Wolcott moved to strike out as "redundant" the much broader and far more rigorous provisions in the bill (§ 202), which authorized the Administrator to "require the making and keeping of records and other documents and the making of reports," and to "obtain or require the furnishing of such information under oath or affirmation or otherwise, as he deems necessary or proper to assist him in prescribing any regulation or order under this act, and in the administration and enforcement of this act, and regulations and orders thereunder."[9] This amendment too was accepted by the House.[10]
It is significant to note that the Senate Committee on Banking and Currency began its consideration of the *11 bill on December 9, 1941, the day after Congress declared the existence of a state of war between this country and the Imperial Government of Japan. Appearing before the Senate Committee in this wartime setting, the proponents of the original measure requested and secured the restoration of the enforcement powers which the House had stricken.[11] They asserted that a major aspect of the investigatory powers contained in the bill as originally drafted was to enable the Administrator to ferret out violations and enforce the law against the violators.[12] And it was pointed out that in striking down the authority originally given the Administrator in the committee bill to require the maintenance of records, the House had substantially stripped him of his investigatory and enforcement powers,
"because no investigatory power can be effective without the right to insist upon the maintenance of records. By the simple device of failing to keep records of pertinent transactions, or by destroying or falsifying such records, a person may violate the act with impunity and little fear of detection. Especially is this true in the case of price-control legislation, which operates on many diverse industries and commodities, each industry having its own trade practices and methods of operation.
*12 "The House bill also deprives the Administrator of the power to require reports and to make inspections and to copy documents. By this deprivation the Administrator's supervision over the operation of the act is rendered most difficult. He has no expeditious way of checking on compliance. He is left without ready power to discover violations.
"It should not be forgotten that the statute to be administered is an emergency statute. To put teeth into the Price Control Act, it is imperative that the Administrator's investigatory powers be strong, clear, and well adapted to the objective. .. ."[13]
Emphasis was placed on the restoration of licensing provisions, which the House had deleted from the Price Control Bill as originally drafted. The General Counsel for the OPA contended that licensing was the backbone of enforcement of price schedules and regulations.[14] The *13 World War I prototype of the Price Control Act, the Lever Act, had contained authority for the President to license the distribution of any necessaries whenever deemed essential "in order to carry into effect any of the purposes of this Act . . .."[15] It was pointed out that "The general licensing regulations prescribed under the Lever Act, applicable to all licensees, required the making of reports (rule 1), the permitting of inspection (rule 2), and the keeping of records (rule 3)."[16] And it was noted that licensing had been employed in connection with the fuel provisions of the Act "as a method of obtaining information, of insuring universal compliance, and of enforcing refunds of overcharges and the payment of penalty charges to war charities."[17] By licensing *14 middlemen, "Violations were readily discovered by examination of the records which each licensee was required to submit."[18]
With this background,[19] Congress restored licensing powers to the Administrator in the Price Control Bill as *15 enacted, § 205, 50 U.S.C. App. § 925 (f), and provided for the suspension by court action of the license of any person found to have violated any of the provisions of the license or price schedules or other requirements. Non-retail fruit dealers, including petitioner in the present case, were licensed under § 9a of Maximum Price Regulation No. 426, 8 F.R. 16411 (1943).
It is difficult to believe that Congress, whose attention was invited by the proponents of the Price Control Act to the vital importance of the licensing, record-keeping and inspection provisions in aiding effective enforcement of the Lever Act, could possibly have intended § 202 (g) to proffer a "gratuity to crime" by granting immunity to custodians of non-privileged records. Nor is it easy to conceive that Congress could have intended private privilege to attach to records whose keeping it authorized the Administrator to require on the express supposition that it was thereby inserting "teeth" into the Price Control Act since the Administrator, by the use of such records, could readily discover violations, check on compliance, and prevent violations from being committed "with impunity."
In conformance with these views, the bill as passed by Congress empowered the Administrator to require the making and keeping of records by all persons subject to the statute, and to compel, by legal process, oral testimony of witnesses and the production of documents deemed necessary in the administration and enforcement of the statute and regulations. It also included the immunity proviso, subsection (g) of § 202, as to which no special attention seems to have been paid in the debates, although it was undoubtedly included, as it had been in other statutes, as a "usual administrative provision,"[20] intended to fulfill the purpose customarily fulfilled by such a provision.
*16 The inescapable implications of the legislative history related above concerning the other subsections of § 202 would appear to be that Congress did not intend the scope of the statutory immunity to be so broad as to confer a bonus for the production of information otherwise obtainable.
Moreover, there is a presumption that Congress, in reenacting the immunity provision of the 1893 Act, was aware of the settled judicial construction of the statutory immunity. In adopting the language used in the earlier act, Congress "must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment."[21] That judicial construction is made up of the doctrines enunciated by this Court in spelling out the non-privileged status of records validly required by law to be kept, in Wilson v. United States, 221 U.S. 361 (1911), and the inapplicability of immunity provisions to non-privileged documents, in Heike v. United States, 227 U.S. 131 (1913).
In the former case, Wilson, the president of a corporation, was required by subpoena to produce the corporate books in his custody before a grand jury. He appeared before the grand jury but refused to deliver up the records on the ground that their contents would tend to incriminate him, and claimed privilege under the Fifth Amendment. On review in this Court of the judgment committing him for contempt, Wilson based his defense in part on the theory that he would have been protected in his constitutional privilege against self-incrimination had he been sworn as a witness, and that the government's failure to permit him to be sworn could not deprive him of such protection.[22] This argument was disposed *17 of by the Court simply on the ground that a corporate officer has no such constitutional privilege as to corporate records in his possession, even though they contain entries made by himself which disclose his crime. Mr. Justice Hughes, announcing the opinion of the Court, based the decision on the reasoning (which this Court recently cited with approval, in Davis v. United States, 328 U.S. 582, 589-90 [1946]) that
"the physical custody of incriminating documents does not of itself protect the custodian against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held. It may yet appear that they are of a character which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim of privilege. . . . The principle applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There the privilege, which exists as to private papers, cannot be maintained."[23]
As illustrations of documents meeting this "required records" test, the Court cited with approval state supreme court decisions that business records kept under requirement of law by private individuals in unincorporated enterprises were "`public documents, which the defendant was required to keep, not for his private uses, but for the benefit of the public, and for public *18 inspection.'"[24] The non-corporate records treated as public in those cases concerned such individuals as druggists required by statute to keep a record of all sales of intoxicating liquors.[25] The corporate and non-corporate *19 businesses required by the Price Control Act to keep records embrace a much greater number of enterprises than those similarly regulated by the states and municipalities. But, since it is conceded that the increased scope of regulation under the wartime measure here involved does not render that Act unconstitutional, the "required records" doctrine which this Court approved as applied to non-corporate businessmen in the state cases would appear equally applicable in the case at bar.
In the Heike case, this Court, per Holmes, J., laid down a standard for the construction of statutory immunity provisos which clearly requires affirmance of the decision of the circuit court here: ". . . the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned."[26] In view of the clear rationale in Wilson, taken together with the ruling in Heike as to how statutory immunity provisos should be construed, the conclusion seems inevitable that Congress must have intended the immunity proviso in the Price Control Act to be coterminous with what would othevwise have been the constitutional privilege of petitioner in the case at bar. *20 Since he could assert no valid privilege as to the required records here in question, he was entitled to no immunity under the statute thus viewed.
The traditional rule that re-enactment of a statute creates a presumption of legislative adoption of previous judicial construction may properly be applied here, since the Court in Heike regarded the 1903 immunity statute there construed as identical, in policy and in the scope of immunity furnished, with the Compulsory Testimony Act of 1893, which has been re-enacted by incorporation into the Price Control Act.
In addition, scrutiny of the precise wording of § 202 (g) of the latter statute indicates that the draftsmen of that section went to some pains to ensure that the immunity provided for would be construed by the courts as being so limited. The construction adopted in the Heike decision was rendered somewhat difficult because neither the Compulsory Testimony Act of 1893 nor the immunity proviso in the 1903 Act made any explicit reference to the constitutional privilege against self-incrimination, with whose scope the Court nonetheless held the immunity to be coterminous. Section 202 (g), on the other hand, follows a pattern set by the Securities Act of 1933 and expressly refers to that privilege, thus apparently seeking to make it doubly certain that the courts would construe the immunity there granted as no broader than the privilege:
"No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of Feb. 11, 1893 . . . shall apply with respect to any individual who specifically claims such privilege."
A comparison of the precise wording of § 202 (g) with the wording of immunity provisions contained in earlier *21 statutes[27] readily suggests one function intended by the drafters of § 202 (g) to be performed by the additional phrases expressly referring to "privilege" viz., that of underlining the legislative intention of requiring an exchange of constitutional privilege for immunity, an intent which the Court had previously thought discernable even in the less obvious terms used by the drafters of the earlier statutes. Thus the immunity provisions of the Compulsory Testimony Act can be relied upon here only if the two prerequisites set forth in § 202 (g) are satisfied: (1) that the person seeking to avail himself of the immunity could actually have been excused, in the absence *22 of this section, from complying with any of its requirements because of his constitutional privilege against self-incrimination, and (2) that the person specifically claim such privilege. Obviously if prerequisite (1) is not fulfilled, the mere fact that the person specifically claims a non-existent privilege was not intended by Congress to entitle him to the benefit of the immunity. And this is so whether the statute be construed with particular reference to its grammar, its historical genesis, or its rational function.
Petitioner does not deny that the actual existence of a genuine privilege against self-incrimination is an absolute prerequisite for the attainment of immunity under § 202 (g) by a corporate officer who has been compelled by subpoena to produce required records; and that, under the Heike ruling, the assertion of a claim to such a privilege in connection with records which are in fact non-privileged is unavailing to secure immunity, where the claimant is a corporate officer. But, while conceding that the statute should be so construed where corporate officials are concerned, the petitioner necessarily attributes to Congress the paradoxical intention of awarding immunity in exchange for a claim of privilege as to records of a claimant engaged in non-corporate business, though his business is similarly subjected to governmental price control, and its required records are, under the Wilson rationale, similarly non-privileged.
The implausibility of any such interpretation of congressional intent is highlighted by the unquestioned fact that Congress provided for price regulations enforcible against unincorporated entrepreneurs as well as corporate industry. It is also unquestionable that Congress, to ensure that violations of the statute should not go unpunished, required records to be kept of all relevant buying and selling transactions by all individual and corporate business subject to the statute. If these aspects of congressional *23 intention be conceded, it is most difficult to comprehend why Congress should be assumed to have differentiated sub silentio, for purposes of the immunity proviso, between records required to be kept by individuals and records required to be kept by corporations. Such an assumption carries with it the incongruous result that individuals forced to produce records required to be kept for the Administrator's inspection and use in enforcing the price regulations would be given a bonus of immunity if engaged in non-corporate business, thus rendering the records of non-corporate enterprise virtually useless for enforcement purposes,[28] whereas individuals disclosing the very same type of required records but engaged in corporate enterprise would not be given that bonus. In effect, this is to say that Congress intended the immunity proviso to frustrate a major aim of its statutory requirement of record-keeping and record inspection *24 so far as it applies to non-corporate businessmen, but not so far as it applies to corporate officers.[29]
It is contended that to construe the immunity proviso as we have here is to devitalize, if not render meaningless, the phrase "any requirements"[30] which appears in the opening clause of § 202 (g): "No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination. . . ." It is urged that, since § 202 includes among its requirements *25 the furnishing of information under oath, the making and keeping of records and reports, the inspection and copying of records and other documents, and the appearing and testifying or producing of documents, the immunity provided must cover compliance with any one of these requirements. The short answer to that contention is that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his privilege, were it not for the statutory grant of immunity in exchange for such privilege.[31] The express language of the proviso, as well as its historical background, readily suggests this reasonable interpretation. Even those who oppose this interpretation must and do concede that Congress had no intention of removing the excuse of privilege where the privilege is absent from the outset because the records whose production is ordered and concerning which privilege is asserted are corporate records. If this concession is made, surely logic as well as history requires a similar reading of the proviso in connection with validly required non-corporate records, as to which privilege is similarly absent from the outset.
If the contention advanced against our interpretation be valid, the Court must have erred in its construction of the immunity proviso in the Heike case. For the 1893 Act, 49 U.S.C. § 46, which it was in effect construing, provides that, "No person shall be excused *26 from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission . . . for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted . . . for or on account of any transaction . . . concerning which he may testify, or produce evidence, documentary or otherwise. . . ." Thus the immunity part of the 1893 statute extended to any documentary as well as oral testimony concerning which there might be a claim of privilege. And included among the documents which the immunity-seeker might be compelled to produce were records maintained by common carriers in compliance with the requirements of the Interstate Commerce Act,[32] and hence obviously within the definition of public records set forth in the Wilson and Heike decisions. If the reasoning advanced against the interpretation of § 202 (g) we have proposed were valid, then it might equally well be contended that the Court in the Heike decision devitalized, if not rendered meaningless the phrase "documentary or otherwise" in the immunity section of the 1893 Act.
Actually, neither the interpretation as applied in the Heike decision nor as expounded here renders meaningless any of the words in the immunity provision. In each case, the immunity proviso is set forth in conjunction with record-keeping requirements. And in each case, where the immunity provided concerns documents whose production might otherwise be excused on the ground of *27 privilege, the documents referred to are all writings whose keeping as records has not been required by valid statute or regulation. Of course all oral testimony by individuals can properly be compelled only by exchange of immunity for waiver of privilege.[33]
*28 The Court in the Heike case was confronted with the further contention that the 1903 immunity statute, which was immediately before it, had been passed when "there was an imperious popular demand that the inside working of the trusts should be investigated, and that the people and Congress cared so much to secure the necessary evidence that they were willing that some guilty persons should escape, as that reward was necessary to the end."[34] In the light of the express statements in the legislative history of the Price Control Act as to the enforcement role of the investigatory powers, such an argument would hardly be tenable in the present case. Yet even in the Heike case where such an argument had some elements of plausibility, the Court had no difficulty in rejecting it in favor of the Government's contention that "the statute should be limited as nearly as may be by the boundaries of the constitutional privilege of which it takes the place."[35]
As a final answer, an understanding of the 1893 immunity provision, based on its full historical context, should suffice to explain the limited function contemplated by Congress in incorporating that provision into the 1942 statute. The 1893 provision was enacted merely to provide an immunity sufficiently broad to be an adequate *29 substitute for the constitutional privilege, since previous statutory provision for immunity had been found by the Court in Counselman v. Hitchcock, 142 U.S. 547 (1892), not to be coextensive with the privilege, thus rendering unconstitutional the statutory requirements for compulsory production of privileged documents and oral testimony.[36]
The suggestion has been advanced that the scope of the immunity intended by Congress should be ascertained, not by reference to the judicial and legislative history considered above, but by reference to the principle expounded in Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 307 (1924), of construing a broad grant of statutory authority so as to avoid attributing to Congress "an intent to defy the Fourth Amendment or even to come so near to doing so as to raise a serious question of constitutional law."
It is interesting to note that Congress, in enacting the Price Control Bill, apparently did intend to rely upon the principle of American Tobacco in circumstances similar to those in which that principle was originally applied: namely, to insure that the power of inspection or examination would not conflict with the prohibition against unreasonable searches and seizures contained in the Fourth Amendment. Senator Brown, who was chairman of the sub-committee on the Price Control Bill and one of the managers on the part of the Senate *30 appointed to confer with the House managers on the Senate amendments, expressly stated it to be the view of the conferees that § 202 (a), which contained broad authorization to the Administrator to "obtain such information as he deems necessary or proper to assist him" in his statutory duties, was intended solely to empower the Administrator to "obtain relevant data to enable him properly to discharge his functions, preferably by requiring the furnishing of information under oath or affirmation or otherwise as he may determine. It is not intended, nor is any other provision of the act intended, to confer any power of inspection or examination which might conflict with the fourth amendment of the Constitution of the United States. See opinion of Justice Holmes in Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 307."[37]
It was the abuse of the subpoena power to obtain irrelevant data in the course of a "fishing expedition" with which the Court was concerned in that case. It is clear that if the Administrator sought to obtain data irrelevant to the effective administration of the statute and if his right of access was challenged on the ground that the evidence sought was "plainly incompetent or irrelevant to any lawful purpose"[38] of the Administrator, that objection could sustain a refusal by the district court to issue a subpoena or other writ to compel inspection. But there is no indication in the legislative history that Congress intended the American Tobacco principle of construction to govern the immunity proviso of subsection (g), particularly since the scope of that proviso had been so well demarcated by the courts prior to its 1942 re-enactment. And it is not insignificant that the one rule of construction which this Court has, in the past, directly and *31 expressly applied to the immunity proviso that "It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned"[39] was enunciated by Mr. Justice Holmes, who gave no sign of repudiating that principle by his subsequent statements in the American Tobacco case.
Even if the evidence of congressional intent contained in the legislative history were less clear-cut and persuasive, and constitutional doubts more serious than they appear to us, we would still be unconvinced as to the applicability of the American Tobacco standard to the construction of the immunity proviso in relation to documentary evidence which is clearly and undeniably relevant, and the recording and keeping of which the Administrator has properly required in advance. For, in construing statutory immunities in such circumstances, we must heed the equally well-settled doctrine of this Court to read a statute, assuming that it is susceptible of either of two opposed interpretations, in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen. The canon of avoidance of constitutional doubts must, like the "plain meaning" rule, give way where its application would produce a futile result, or an unreasonable result "plainly at variance with the policy of the legislation as a whole."[40] In the present case, not merely does the construction *32 put forward by the petitioner frustrate the congressional intent as manifested by the legislative history, but it also shuts out the illumination that emanates from key words and phrases in the section when considered, as above, in the context of the history of the Compulsory Testimony Act of 1893, and the construction that had been placed upon it and similar provisos, prior to its incorporation into the Price Control Act.
There remains for consideration only the question as to whether serious doubts of constitutionality are raised if the Price Control Act is thus construed. This issue was not duly raised by petitioner, and it becomes relevant, if at all, only because such doubts are now said to be prdsent if the immunity proviso is interpreted as set forth above.
It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator. It is not questioned here that Congress has constitutional authority to prescribe commodity prices as a war emergency measure, and that the licensing and record-keeping requirements of the Price Control Act represent a legitimate exercise of that power.[41] Accordingly, the principle enunciated in the Wilson case, and reaffirmed as recently as the Davis case, is clearly applicable here: *33 namely, that the privilege which exists as to private papers cannot be maintained in relation to "records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established."[42]
*34 Even the dissenting Justices in the Davis case conceded that "there is an important difference in the constitutional protection afforded their possessors between papers exclusively private and documents having public aspects,"[43] a difference whose essence is that the latter papers, "once they have been legally obtained, are available as evidence."[44] In the case at bar, it cannot be doubted that the sales record which petitioner was required to keep as a licensee under the Price Control Act has "public aspects." Nor can there be any doubt that when it was obtained by the Administrator through the use of a subpoena, as authorized specifically by § 202 (b) of the statute, it was "legally *35 obtained" and hence "available as evidence."[45] The record involved in the case at bar was a sales record required to be maintained under an appropriate regulation, its relevance to the lawful purpose of the Administrator is unquestioned, and the transaction which it recorded was one in which the petitioner could lawfully engage solely by virtue of the license granted to him under the statute.[46]
In the view that we have taken of the case, we find it unnecessary to consider the additional contention by the Government that, in any event, no immunity attaches to the production of the books by the petitioner because the *36 connection between the books and the evidence produced at the trial was too tenuous to justify the claim.
For the foregoing reasons, the judgment of the Circuit Court of Appeals is
Affirmed.
MR. JUSTICE FRANKFURTER, dissenting.
The Court this day decides that when Congress prescribes for a limited Governmental purpose, enforceable by appropriate sanctions, the form in which some records are to be kept, not by corporations but by private individuals, in what in everyday language is a private and not a Governmental business, Congress thereby takes such records out of the protection of the Constitution against self-incrimination and search and seizure. Decision of constitutional issues is at times unavoidable. But in this case the Court so decides when it is not necessary. The Court makes a drastic break with the past in disregard of the settled principle of constitutional adjudication not to pass on a constitutional issue and here a grave one involving basic civil liberties if a construction that does no violence to the English language permits its avoidance. This statute clearly permits it.[1] Instead, the Court goes on the assumption that an immunity statute must be equated with the privilege, although only recently the Court attributed to Congress a gratuitous grant of immunity where concededly the Constitution did not require it, under circumstances far less persuasive than the statutory language and the policy underlying it. See United States v. Monia, 317 U.S. 424.
*37 Instead of respecting "serious doubts of constitutionality" by giving what is at the least an allowable construction to the Price Control Act which legitimately avoids these doubts, the Court goes out of its way to make a far-reaching pronouncement on a provision of the Bill of Rights. In an almost cursory fashion, the Court needlessly decides that all records which Congress may require individuals to keep in the conduct of their affairs, because they fall within some regulatory power of Government, become "public records" and thereby, ipso facto, fall outside the protection of the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself."
In reaching out for a constitutional adjudication, especially one of such moment, when a statutory solution avoiding it lay ready at hand, the Court has disregarded its constantly professed principle for the proper approach toward congressional legislation. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, quoted by Mr. Justice Brandeis with supporting citations in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, n. 8. And see, generally, for duty to avoid constitutional adjudication, Rescue Army v. Municipal Court, 331 U.S. 549, 568 et seq.
Departure from a basic canon of constitutional adjudication is singularly uncalled for in a case such as this, where the statute not only permits a construction avoiding constitutional considerations but on fair reading requires it.
In conferring powers of investigation upon the Administrator, Congress designed to secure the promptest disclosure *38 of the books and records of the millions of private enterprises subjected to the regulations of the Office of Price Administration. It would contradict that vital aim to attribute to Congress the conflicting purpose of hampering the free flow of knowledge contained in businessmen's books by inviting controversies regarding still undetermined claims of privilege under the Fifth Amendment, in the absence of an expression of such purpose made much more manifest than the broad language of § 202 (g) which conferred immunity for the very purpose of avoiding such controversies.
It is a poor answer to say that if the statute were eventually found to confer immunity only to the extent required for supplying an equivalent for the constitutional privilege, all records would turn out to be unprivileged or would furnish immunity, and in either case refute any excuse for withholding them. Businessmen are not guided by such abstractions. Obedience is not freely given to uncertain laws when they involve such sensitive matters as opening the books of business. And so, businessmen would have had a strong incentive to hold back their records, forcing the Administrator to compel production by judicial process. Apart from the use of opportunities for obstructive tactics that can hardly be circumvented when new legislation is tested, delays inevitable to litigation would dam up the flow of needed information. Congress sought to produce information, not litigation. See United States v. Monia, supra, at p. 428.
In the Monia case the Court considered that the statute, "if interpreted as the Government now desires, may well be a trap for the witness." Id. at 430. We need not speculate here as to potential entrapment. The record discloses that the petitioner asked, through his attorney, whether he was "being granted immunity as to any and all matters for information obtained as a result of the investigation and examination of these records." On behalf *39 of the Price Administrator, the reply was "The witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept pursuant to MPRs [Maximum Price Regulations] 271 and 426." Petitioner, himself, thereupon specifically claimed immunity under the statute as well as under the Constitution, and stated that under "these conditions" he produced the books and records that the subpoena sought. It seems clear that disclosure was here made, records were produced, on the petitioner's justifiable belief based upon the advice of counsel and acquiesced in by the presiding official that he thereby secured statutory immunity and not constitutional litigation.
There is nothing to indicate that in 1942 Congress legislated with a view to litigating the scope of the limitation of the Fifth Amendment upon its powers. To ascertain what Congress meant by § 202 (g) we would do well to begin by carefully attending to what Congress said:
"No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." 56 Stat. 23, 30, 50 U.S.C. App. § 922 (g).
The text must be put into its context, not merely because one provision of a statute should normally be read in relation to its fellows, but particularly so here because Congress explicitly linked subsection (g) of § 202 to "any requirements under this section." Effective price control depended on unimpeded access to relevant information. To that end, § 202 authorized the Administrator to impose the "requirements" of the section, and those from whom *40 they were exacted were under duty of compliance by subsection (e), while subsection (g) barred any excuse from compliance by a claim of privilege against self-crimination by the assurance of immunity from prosecution.[2]
*41 Subsections (a), (b), (c) and (e) impose these four requirements: persons engaged in the vast range of business subject to the Act may be required to (1) make and keep records, (2) make reports and (3) permit the inspection and copying of records and other documents; such persons as well as others may be required to (4) "appear and testify or to appear and produce documents, or both, at any designated place."[3] An unconstrained reading of subsection (g) insured prompt compliance with all these requirements by removing any excuse based on the privilege against self-crimination.
*42 Here the Administrator required the petitioner to "keep and make available for examination by the Office of Price Administration . . . records of the same kind as he has customarily kept. . . ." § 14 (b), MPR 426, 8 F.R. 9546, 9549. The Government contends that because the records of petitioner's own business, those that he "customarily kept," were required to be so kept by the Administrator, he was compelled to disclose their contents even though they may have incriminated him, and that he was afforded no immunity under subsection (g) because he was not disclosing what were really his records. Surely this is to devitalize the phrase "any requirements under this section" if not to render it meaningless.
The Court supports this devitalization with the "short answer" that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his constitutional privilege. The short reply is that, bearing in mind the Court's conclusions as to the scope of the constitutional privilege, only the fourth requirement appears to be thus covered. I do not wish to lay too much stress on the Court's singular interpretation of the plural "requirements." Plainly, the Court construes § 202 (g) as according immunity only to oral testimony under oath and to the production of any documents which the Administrator did not have the foresight to require to be kept.[4]
The Court thus construes the words "complying with any requirements under this section" to read "appearing and testifying or producing documents other than those required to be kept pursuant to this section." Construction, *43 no doubt, is not a mechanical process and even when most scrupulously pursued by judges may not wholly escape some retrospective infusion so that the line between interpretation and substitution is sometimes thin. But there is a difference between reading what is and rewriting it. The Court here does not adhere to the text but deletes and reshapes it. Such literary freewheeling is hardly justified by the assumption that Congress would have so expressed it if it had given the matter attentive consideration.[5] In the Monia case the Court, having concluded that a similar question was present, had no difficulty in answering: "It is not for us to add to the legislation what Congress pretermitted." 317 U.S. at 430.
Both logic and authority, apart from due regard for our limited function, demonstrate the wisdom of respecting the text. The reach of the immunity given by § 202 (g) is spelled out in the incorporated terms of the Compulsory Testimony Act of 1893. These provide that where, as here, documentary evidence is exacted which may tend to incriminate, he who produces it shall not "be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise. . . ." 27 Stat. 443, 49 U.S.C. § 46. There is of course nothing in this provision to support the finespun exegesis which the Court puts upon § 202 (g). The Government admits as much by acknowledging that "the literal language of the Compulsory Testimony Act possibly may be so read" as to support the present claim of immunity. But it urges that nothing *44 in the "language or legislative history" of § 202 (g) requires a broader immunity than an adjudication of the scope of the constitutional privilege would exact.
The language yields no support for the Government's sophisticated reading adopted by the Court. Nor is there anything in the legislative history to transmute the clear import of § 202 into esoteric significance. So far as it bears upon our problem, the legislative history of the Act merely shows that § 202 in its entirety was included for the purpose of "obtaining information."[6] Nothing in that history throws any light upon the scope of the immunity afforded by subsection (g).[7] What is there in this silence of Congress that speaks so loudly to the Court? What are the "inescapable implications of the legislative history" that compelled its extraordinary reading of this statute? Surely, the fact that the Administrator's authority to require the keeping of records and the making of reports was stricken from the bill on its original passage through the House but was eventually *45 reinserted, merely indicates that Congress finally concluded that obtaining information was necessary for effective price regulation.[8]
But the Court reads into § 202 (g) the meaning that "they" put upon the record-keeping provisions that Congress thus reinserted into the bill. "They," the "general Counsel for the OPA," appeared and testified orally at the Senate Hearings[9] and, in urging restoration of the licensing (§ 205 (f)) and record-keeping provisions, secured permission to file various briefs and documents with the Committee.[10] While there is nothing in the General Counsel's oral testimony that sheds light upon our problem, *46 it does appear from one of the exhibits filed by him that the Court has correctly determined the far-reaching construction that he had given to provisions which the House had rejected as "redundant."[11] But our task is to determine, as best we can, what Congress meant not what counsel sponsoring legislation, however disinterestedly, hoped Congress would mean. If counsel's views had been orally expressed to the Committee,[12] the Committee might have given some indication of its views. But even if upon such disclosure of counsel's views the Committee had remained silent, this would hardly have furnished sufficient evidence to transmute the language that Congress actually employed to express its meaning into some other meaning.
To attribute to Congress familiarity with, let alone acceptance of, a construction solely by reason of the fact that our research reveals its presence among the 60,000-word memoranda which the Chairman of the Senate Committee permitted the General Counsel of the O.P.A. to file, is surely to defy the actualities of the legislative process. Is there the slenderest ground for assuming that members of the Committee read counsel's submission now relied upon by the Court? There is not a reference to the contentions of the O.P.A., wholly apart from that brief, in any report of a committee of either House or in any utterance on the floor of either House.[13] The fact *47 of the matter is that the House had passed the measure before the brief, in type smaller than that of the footnotes in this opinion, appeared in a volume of hearings comprising *48 560 pages (part of the three volumes of House and Senate Hearings containing 2,865 pages). The Government, in submitting to us the legislative history of the immunity provision with a view to sustaining its claims, did not pretend that the Congress was either aware of the brief or accepted the construction it proffered. The suggestion that members of a congressional committee have read, and presumptively agreed with, the views found in a memorandum allowed to be filed by a witness and printed in appendix form in the hearings on a bill, let alone that both Houses in voting for a measure adopted such views as the gloss upon the language of the Act which it would not otherwise bear, can only be made in a Pickwickian sense. It is hard to believe that even the most conscientious members of the Congress would care to be charged with underwriting views merely because they were expressed in a memorandum filed as was the O.P.A. brief, on which so much reliance is placed in the Court's opinion. If the language of a statute is to be subjected to the esoteric interpretative process that the suggested use of the O.P.A. brief implies, since it is the common practice to allow memoranda to be submitted to a committee of Congress by interests, public and private, often high-minded enough but with their own axes to grind, great encouragement will be given to the temptations of administrative officials and others to provide self-serving "proof" of congressional confirmation for their private views through incorporation of such materials. Hitherto unsuspected opportunities for assuring desired *49 glosses upon innocent-looking legislation would thus be afforded.
We agree with the Government that Congress gave the Administrator broad powers for obtaining information as an aid to the administration and enforcement[14] of the Act, and that "The immunity provision of Section 202 (g) was inserted to insure a full exercise of these powers unhampered by the assertion of the privilege against self-incrimination." Certainly. But how does it follow that Congress thereby intended sub silentio to effectuate this broad purpose by confining the immunity accorded within the undefined controversial scope of the Fifth Amendment? One would suppose that Congress secured its object, as this Court held in the Monia case, by giving immunity and so taking away contentions based on the constitutional privilege.
Plainly, it would have sufficed to dispose of the present controversy by holding that Congress granted immunity by § 202 (g) to persons who produced their own records, as were the records in this case, and not in their possession as custodians of others, even though required to be kept by § 202. To adapt the language of Mr. Justice Holmes, words have been strained by the Court more than they *50 should be strained in order to reach a doubtful constitutional question. See Blodgett v. Holden, 275 U.S. 142, 148.
And so we come to the Court's facile treatment of the grave constitutional question brought into issue by its disposition of the statutory question. In the interest of clarity it is appropriate to note that the basic constitutional question concerns the scope of the Fifth Amendment, not the validity of the Price Control Act. The Court has construed the immunity afforded by § 202 (g) of the Act as co-extensive with the scope of the constitutional privilege against self-incrimination. Thus construed, the subsection is of course valid, since, by hypothesis, it affords a protection as broad as the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547; Brown v. Walker, 161 U.S. 591. The vice of this construction and the importance of the point warrants its reiteration is precisely that it necessitates interpretation of the Constitution instead of avoiding it.[15] And if the precedents mean anything this course will be followed in every future case involving a question of statutory immunity.
The Court hardly finds a problem in disposing of an issue far-reaching in its implications, involving as they do a drastic change in the relations between the individual and the Government as hitherto conceived. The Court treats the problem as though it were almost self-evident that when records are required to be kept for some needs of Government, or to be kept in a particular form, they are legally considered governmental records and may be demanded as instruments of self-crimination.
Ready-made catch-phrases may conceal but do not solve serious constitutional problems. "Too broadly generalized *51 conceptions are a constant source of fallacy." Holmes, J., in Lorenzo v. Wirth, 170 Mass. 596, 600. Here the fallacy can be traced to the rephrasing of our problem into terms "to which as lawyers the judges heve become accustomed," ibid.; then, by treating the question as though it were the rephrased issue, the easy answer appears axiomatic and, because familiar, authoritative. Subtle question-begging is nevertheless question-begging. Thus: records required to be kept by law are public records; public records are non-privileged; required records are non-privileged.
If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment to say nothing of State and local legislation has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.
The Congress began its history with such legislation. Chapter I of the Laws of the First Session of the First Congress "An Act to regulate the Time and Manner of administering certain Oaths" contained a provision requiring the maintenance of records by persons administering oaths to State officials. 1 Stat. 23, 24. Chapter V "An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandise imported into the United States" contained a provision requiring an importer to produce the original invoice and to make a return concerning the consigned goods with the collector of the port of arrival. 1 Stat. 29, 39-40.
Every Congress since 1789 has added record-keeping and reporting requirements. Indeed, it was the plethora *52 of such provisions that led President Roosevelt to establish the Central Statistical Board in 1933 and induced the enactment, in 1942, of the Federal Reports Act, 56 Stat. 1078. See, generally, Report of the Central Statistical Board, H. Doc. No. 27, 76th Cong., 1st Sess.; Centralization and Coordination of Federal Statistics Report to the Committee on Appropriations of the House of Representatives, December 4, 1945, 91 Cong. Rec. A5419. On April 25, 1939, the Central Statistical Board reported that, "Since the end of 1933, the Board has reviewed in advance of dissemination more than 4,600 questionnaires and related forms and plans proposed for use by Federal agencies. The records for the past 2 years show that the Board has received forms from 52 Federal agencies and a number of temporary interdepartmental committees." See Hearings before the House Committee on Expenditures in the Executive Departments on H.R. 5917, 76th Cong., 1st Sess., at p. 32. The Board, on the basis of a comprehensive survey of the financial and other reports and returns made to 88 Federal agencies by private individuals, farms, and business concerns during the fiscal year ending June 30, 1938, informed Congress as follows:
"Counting both the administrative and the nonadministrative reports and returns, the Board's inquiry revealed that some 49,000,000 of the total during the year were collected in accordance with statutory provisions specifically authorizing or directing the collection of reports of the types called for. Approximately 55,000,000 returns were collected by agencies in connection with their performance of functions which were specifically authorized by statutes, although the statutes did not specify the reports. In such cases the information sought was obviously necessary in carrying out the required functions. Nearly 27,000,000 returns were collected by *53 Federal agencies on report forms for each of which the legal authority was too general or too indefinite to permit its clear definition. The remaining 5,000,000 returns were made under a variety of types of legal authorities including authorizations implied in appropriations made specifically to support the collection of the reports.
"Somewhat less than half of the returns made to Federal agencies on all forms . . . were mandatory by law, in the sense that a penalty is prescribed in case of failure of the respondent to file a required report. Some of these mandatory returns are very elaborate, and as a consequence over 60 percent of the total number of answers on report forms, other than applications, were in accordance with mandatory requirements." (H. Doc. No. 27, supra, at 11-12.)
I do not intend by the above exposition to cast any doubt upon the constitutionality of the record-keeping or reporting provisions of the Emergency Price Control Act or, in general, upon the vast number of similar statutory requirements. Such provisions serve important and often indispensable purposes. But today's decision can hardly fail to hamper those who make and those who execute the laws in securing the information and data necessary for the most effective and intelligent conduct of Government.
The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become "public" records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by federal *54 regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records.
If the records in controversy here are in fact public, in the sense of publicly owned, or governmental, records, their non-privileged status follows. See Davis v. United States, 328 U.S. 582, 594, 602 (dissenting opinion). No one has a private right to keep for his own use the contents of such records. But the notion that whenever Congress requires an individual to keep in a particular form his own books dealing with his own affairs his records cease to be his when he is accused of crime, is indeed startling.
A public record is a public record. If the documents in controversy are "public records" and as such non-privileged in a prosecution under the Price Control Act, why are they not similarly public and non-privileged in any sort of legal action? There is nothing in either the Act or the Court's construction of it to qualify their "public" nature. Is there any maintainable reason why the Fifth Amendment should be a barrier to their utilization in a prosecution under any other law if it is no barrier here? These records were, as a matter of fact, required to be kept (and hence "public") quite apart from this Act. See Int. Rev. Code § 54 (a) and Treas. Reg. 111, § 29.54-1. If an examination of the records of an individual engaged in the processing and sale of essential commodities should disclose non-essential production, for example, why cannot the records be utilized in prosecutions for violations of the priorities or selective service legislation? Cf. Harris v. United States, 331 U.S. 145; but cf. Trupiano v. United States, 334 U.S. 699.
Moreover, the Government should be able to enter a man's home to examine or seize such public records, with *55 or without a search warrant, at any time. If an individual should keep such records in his home, as millions do, instead of in his place of business, why is not his home for some purposes and in the same technical sense, a "public" library? Compare Davis v. United States, 328 U.S. 582, and Harris v. United States, supra, with the "well-stated" opinion in United States v. Mulligan, 268 F. 893; but see Trupiano v. United States, supra. This is not "a parade of horribles." If a man's records are "public" so as to deprive him of his privilege against self-crimination, their publicness inheres in them for many other situations.
Indeed, if these records are public, I can see no reason why the public should not have the same right that the Government has to peruse, if not to use, them. For, public records are "of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure." Evanston v. Gunn, 99 U.S. 660, 666. It would seem to follow, therefore, that these public records of persons engaged in what to the common understanding is deemed private enterprise should be generally available for examination and not barred by the plea that the enterprise would thereby cease to be private.
Congress was guilty, perhaps, of no more than curious inconsistency when it provided in § 202 (h) of the Act for the confidential treatment of these "public" records.[16] But the seeming inconsistency generally applies to *56 information obtained by the Government pursuant to record-keeping and reporting requirements. See H. Doc. No. 27, supra, at pp. 26-28; 56 Stat. 1078, 1079; H.R. Rep. No. 1651, 77th Cong., 2d Sess., at pp. 4-5; ("We [the Bureau of the Census] do not even supply the Department of Justice or anybody else with that information") Hearings before the House Committee on Expenditures in the Executive Departments on H.R. 7590, 74th Cong., 1st Sess., at p. 63.
The fact of the matter, then, is that records required to be kept by law are not necessarily public in any except a word-playing sense. To determine whether such records are truly public records, i.e., are denuded of their essentially private significances, we have to take into account their custody, their subject matter, and the use sought to be made of them.
It is the part of wisdom, particularly for judges, not to be victimized by words. Records may be public records regardless of whether "a statute requires them to be kept," if "they are kept in the discharge of a public duty" either by a public officer or by persons acting under his direction. Evanston v. Gunn, supra. Chapter I of the first statute passed by Congress, supra, is an example of an act requiring a public record to be kept.
Records do not become public records, however, merely because they are required to be kept by law. Private records under such circumstances continue to be private records. Chapter V of the Acts of the First Congress, supra, is an example of such a private record required to be kept by law.
Is there, then, any foundation for the Court's assumption that all records required to be kept by law are public and not privileged? Reliance is placed on language in Wilson v. United States, 221 U.S. 361. The holding in that case has no real bearing on our problem. Wilson, the president of a corporation, in answer to a subpoena *57 to produce, refused to surrender the corporation's books and records on the ground that their contents would tend to incriminate him. He appealed to this Court from a judgment committing him for contempt. The case was disposed of on the ground that the books were the corporation's and not "his private or personal books," that the "physical custody of incriminating documents does not of itself protect the custodian against their compulsory production," and that, therefore, "the custodian has no privilege to refuse production although their contents tend to criminate him." 221 U.S. at 378, 380, 382. The Court concluded as follows:
"The only question was whether as against the corporation the books were lawfully required in the administration of justice. When the appellant became president of the corporation and as such held and used its books for the transaction of its business committed to his charge, he was at all times subject to its direction, and the books continuously remained under its control. If another took his place his custody would yield. He could assert no personal right to retain the corporate books against any demand of government which the corporation was bound to recognize.
"We have not overlooked the early English decisions to which our attention has been called . .. but these cannot be deemed controlling. The corporate duty, and the relation of the appellant as the officer of the corporation to its discharge, are to be determined by our laws. Nothing more is demanded than that the appellant should perform the obligations pertaining to his custody and should produce the books which he holds in his official capacity in accordance with the requirements of the subpoena. None of his personal papers are subject to inspection under the writ and his action, in refusing to permit the *58 examination of the corporate books demanded, fully warranted his commitment for contempt." (221 U.S. at 385-86.)
The Wilson case was correctly decided. The Court's holding boiled down to the proposition that "what's not yours is not yours." It gives no sanction for the bold proposition that Congress can legislate private papers in the hands of their owner, and not in the hands of a custodian, out of the protection afforded by the Fifth Amendment. Even if there were language in the Wilson opinion in that direction, an observation taken from its context would seem to be scant justification for resolving, and needlessly, "a very grave question of constitutional law, involving the personal security, and privileges and immunities of the citizen." Boyd v. United States, 116 U.S. 616, 618.
The conclusion reached today that all records required to be kept by law are public records cannot lean on the Wilson opinion. This is the language relied upon by the Court:
"The principle [that a custodian has no privilege as to the documents in his custody] applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There the privilege, which exists as to private papers, cannot be maintained." (221 U.S. at 380.)
But Mr. Justice Hughes, the writer of the Wilson opinion, went on to note that "There are abundant illustrations in the decisions" of this principle that a custodian has no privilege as to the documents in his custody just as no one has a privilege as to public or official records because they are not his private papers. He resorted *59 to these illustrations concerning custodians because the dissenting opinion of Mr. Justice McKenna, while accepting the premise that public records were not privileged, quarreled with the Court's holding as to the absence of a custodian's privilege concerning non-public records, as follows: "As the privilege is a guaranty of personal liberty it should not be qualified by construction and a distinction based on the ownership of the books demanded as evidence is immaterial. Such distinction has not been regarded except in the case of public records, as will be exhibited by a review of the authorities." 221 U.S. at 388.
The illustrations utilized by Mr. Justice Hughes to meet this challenge raised by the dissent stand for the propositions that (a) a custodian has no privilege, and (b) public documents and records are non-privileged, but not at all on any notion that private records required to be kept by law are "public" records. Before analyzing the eleven precedents or illustrations thus employed, it is worthy of note that the illustrations were derived from the Government's brief. It is significant that that brief, by Solicitor General Frederick W. Lehmann, well-known for his learning, contained no reference to the "required records" doctrine. On the contrary the Government cited these cases to support its argument that: "The immunity granted by the Constitution is purely personal."[17]
These are the "illustrations in the decisions":
(1) Bredshaw v. Murphy, 7 C. & P. 612, where "it was held that a vestry clerk who was called as a witness could not on the ground that it might incriminate himself object to the production of the vestry books kept under the statute, 58 George III, chapter 69, § 2." (221 U.S. at 380.)
*60 Comment. This is an instance where records were required to be kept by a public officer (for such, in England, was a parish vestry clerk). Clearly the clerk had no privilege as to such records since (1) they were not his, he was merely their custodian, and (2) he was a public officer.
(2) State v. Farnum, 73 S.C. 165, where it was held that the dispenser of the State Dispensary had to disclose to a legislative committee the official books of that State institution.
Comment. Under South Carolina law the dispenser was an officer of the State; the books were true public records; he was their custodian.
(3) State v. Donovan, 10 N.D. 203, where it was held that a register of sales of intoxicating liquor kept by a druggist pursuant to a statute providing that such record "shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof" was a public record.
Comment. The State court construed the statute to make the druggist a public officer and, as such, the custodian of the register for the State. The court quoted authority to the effect that the register was "the property of the state, and not of the citizen, and is in no sense a private memorandum." 10 N.D. at 209. Are we to infer from the Court's opinion in this case that the books and records petitioner customarily kept were not his property but that of the United States Government, and that they "shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof"? Ibid. and cf. Evanston v. Gunn, supra.
(4) State v. Davis, 108 Mo. 666, where it was held that a druggist had no privilege as to the prescriptions he filled for sales of intoxicating liquor.
*61 Comment. Here the prescriptions were "required to be kept by law" but they constituted "public" records in the pure Wilson sense. The prescriptions belonged to the physicians or their patients, "and the druggist [was] merely their custodian." 108 Mo. at 671.
(5) State v. Davis, 68 W. Va. 142 (prescription-keeping case virtually identical with State v. Davis, 108 Mo. 666).
(6) People v. Coombs, 158 N.Y. 532, where it was held that a coroner had no privilege as to official inquest records, required to be filed with the county clerk, over his contention that they were private records because they were false and had been found in his own office.
Comment. "The papers were in a public office, in the custody of a clerk who was paid by the city. On their face they were public records and intended to be used as such." 158 N.Y. at 539.
(7) L. & N.R. Co. v. Commonwealth, 51 S.W. (Ky.) 167, where it was held that a railroad corporation had no privilege as to a tariff sheet.
Comment. The tariff sheet was "required by law to be publicly posted at the station, and was in fact so posted." 51 S.W. at 167. Petitioner is not a railroad corporation and his records were not "publicly posted."
(8) State v. Smith, 74 Iowa 580, where it was held that a pharmacist had no privilege as to the monthly reports of liquor sales that he had made to the county auditor pursuant to a statutory reporting requirement.
Comment. The reports in the auditor's office were "public records of the office, which are open to the inspection of all, and may be used in evidence in all cases between all parties, when competent, to establish any fact in issue for judicial determination." 74 Iowa at 583-84. Petitioner's records were in his possession and were not open for public inspection.
*62 (9) State v. Cummins, 76 Iowa 133 (same as State v. Smith, supra).
(10) People v. Henwood, 123 Mich. 317 (liquor sales reporting requirement held valid).
(11) Langdon v. People, 133 Ill. 382, held that seizure pursuant to search warrant of official State documents unlawfully in appellant's possession constituted reasonable search "They were not private papers." 133 Ill. at 398.
In summary of the authorities cited as illustrations of the principle recognized and applied by the Court in the Wilson case, then, it should be obvious that they neither stand for the proposition that the fact that private records are required to be kept by statute makes them public records by operation of law, nor did Mr. Justice Hughes misconstrue them in reaching the decision in the Wilson case.
Were there any doubt as to the point of the illustrations in the Wilson case, surely we could safely permit that doubt to be resolved by the Wilson opinion itself. After reviewing the illustrative cases, Mr. Justice Hughes observed:
"The fundamental ground of decision in this class of cases, is that where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody he has accepted the incident obligation to permit inspection." (221 U.S. 381-82.)
Evidently the dictum in the Wilson case and the authorities therein cited need to be bolstered for the use to which they are put in this case. We are told that "Other state supreme court decisions, subsequent to the *63 Wilson case, similarly treat as non-privileged, records required by statute to be kept." These are the five instances cited:
(1) Paladini v. Superior Court, 178 Cal. 369, where it was held that the statutory procedure whereby the State Market Director could compel the production of the sales records of licensed fish dealers was valid.
Comment. The court did not hold that the records were "non-privileged," but disposed of the contention that the statute violated the constitutional privilege against self-incrimination on the ground that "The proceeding before the state market director is not criminal in its nature, and the order compelling the petitioners to produce their books before the state market director was not in violation of the constitutional provision which prohibits a court or officer from requiring a defendant in a criminal case to furnish evidence against himself." 178 Cal. at 373. The court did dispose of the contention that the statute violated the Fourth Amendment of the United States Constitution on the ground that the records were not private. But the records here were public records because, since it was conceded that the fish belonged to the State, "They contain a record of the purchase and sale of the property of the state, by those having a qualified or conditional interest therein." Ibid. There is no suggestion in this case that petitioner's records were public records because his fruit and vegetables were the property of the United States Government.
(2) St. Louis v. Baskovitz, 273 Mo. 543, where a municipal ordinance requiring junk dealers to keep books of registry recording their purchases and providing that the books be open for inspection and examination by the police or any citizen was upheld against the contention that it violated the State constitutional provision against unreasonable searches and seizures for private purposes.
*64 Comment. The case was disposed of by the court's interpretation of the words "any citizen" as being limited in meaning to "one whose property has been stolen." 273 Mo. at 576. The records here were "required to be kept by statute," it is true, but the court had no occasion to, and did not, go into the question as to whether the records were "non-privileged."
(3) State v. Legora, 162 Tenn. 122, where a statute requiring junk dealers to keep a record of their purchases was upheld.
Comment. A record which "shall at all times be open to the inspection of . . . any person who may desire to see the same," 162 Tenn. at 124, is, of course, a "public" record. Evanston v. Gunn, supra; cf. St. Louis v. Baskovitz, supra.
(4) State v. Stein, 215 Minn. 308, where a statute requiring licensed dealers in raw furs to keep records of their sales and purchases was upheld.
Comment. The records here were public records for the same reason that the records involved in the Paladini case were public records "the state is the owner, in trust for the people, of all wild animals." 215 Minn. at 311.
(5) Financial Aid Corporation v. Wallace, 216 Ind. 114, where a statute requiring licensed small loan concerns to keep records and providing for their inspection by the State Department of Financial Institutions was upheld.
Comment. The court had no occasion to, and did not, go into the question as to whether the records were either "public" or "non-privileged."
It appears to me, therefore, that the authorities give no support to the broad proposition that because records are required to be kept by law they are public records and, hence, non-privileged. Private records do not thus *65 become "public" in any critical or legally significant sense; they are merely the records of an industry or business regulated by law. Nor does the fact that the Government either may make, or has made, a license a prerequisite for the doing of business make them public in any ordinary use of the term. While Congress may in time of war, or perhaps in circumstances of economic crisis, provide for the licensing of every individual business, surely such licensing requirements do not remove the records of a man's private business from the protection afforded by the Fifth Amendment. Even the exercise of the war power is subject to the Fifth Amendment. See, e.g., Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 155-56. Just as the licensing of private motor vehicles does not make them public carriers, the licensing of a man's private business, for tax or other purposes, does not under our system, at least so I had supposed, make him a public officer.
Different considerations control where the business of an enterprise is, as it were, the public's. Clearly the records of a business licensed to sell state-owned property are public records. Cf., e.g., Paladini v. Superior Court, supra; State v. Stein, supra. And the records of a public utility, apart from the considerations relevant to corporate enterprise, may similarly be treated as public records. Cf., e.g., L. & N.R. Co. v. Commonwealth, supra; Financial Aid Corporation v. Wallace, supra. This has been extended to the records of "occupations which are malum in se, or so closely allied thereto, as to endanger the public health, morals or safety." St. Louis v. Baskovitz, supra, at p. 554; cf., e.g., State v. Legora, supra; State v. Donovan, supra; State v. Smith, supra.
Here the subject matter of petitioner's business was not such as to render it public. Surely, there is nothing inherently dangerous, immoral, or unhealthy about the *66 sale of fruits and vegetables. Nor was there anything in his possession or control of the records to cast a cloud on his title to them. They were the records that he customarily kept. I find nothing in the Act, or in the Court's construction of the Act, that made him a public officer. He was being administered, not administering. Nor was he in any legitimate sense of the word a "custodian" of the records. I see nothing frivolous in a distinction between the records of an "unincorporated entrepreneur" and those of a corporation. On the contrary, that distinction was decisive of the Wilson holding:
"But the corporate form of business activity, with its chartered privileges, raises a distinction when the authority of government demands the examination of books." (221 U.S. at 382.)
And the Court quoted at length from Hale v. Henkel, 201 U.S. 43, 74-75:
"`. . . we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. . . .
"`Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises .. . .'" (221 U.S. at 383.)
*67 The distinction between corporate and individual enterprise is one of the deepest in our constitutional law, as it is for the shapers of public policy.
The phrase "required to be kept by law," then, is not a magic phrase by which the legislature opens the door to inroads upon the Fifth Amendment. Statutory provisions similar to § 202 (b) of this Act, requiring the keeping of records and making them available for official inspection, are constitutional means for effective administration and enforcement.[18] It follows that those charged with the responsibility for such administration and enforcement may compel the disclosure of such records in conformity with the Fourth Amendment. See Boyd v. United States, supra, at pp. 623-24. But it does not follow that such disclosures are beyond the scope of the protection afforded by the Fifth Amendment. For the compulsory disclosure of a man's "private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom." Id. at 632.
The Court in the Boyd case was fully cognizant of the sense and significance of the phrase "books required by law to be kept for their inspection." Id. at 623-24. Surely the result of that decision, if not the opinion itself, speaks loudly against the claim that merely by virtue of a record-keeping provision the constitutional privilege against self-incrimination becomes inoperative. The document in controversy in the Boyd case was historically, and as a matter of fact, much more of a "required record" than the books and records the petitioner here "customarily *68 kept." If the Court's position today is correct the Boyd case was erroneously decided.[19]
*69 In disregarding the spirit of that decision, the Court's opinion disregards the clarion call of the Boyd case: obsta principiis. For, while it is easy enough to see this as a petty case and while some may not consider the rule of law today announced to be fraught with unexplored significance for the great problem of reconciling individual freedom with governmental strength, the Boyd opinion admonishes against being so lulled. "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance." Id. at 635.
Violators should be detected, tried, convicted, and punished but not at the cost of needlessly bringing into question constitutional rights and privileges. While law enforcement officers may find their duties more arduous and crime detection more difficult as society becomes more complicated, the constitutional safeguards of the *70 individual were not designed for short-cuts in the administration of criminal justice.
And so I conclude that the Court has misconstrued the Fifth Amendment by narrowing the range and scope of the protection it was intended to afford. The privilege against self-incrimination is, after all, "as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, supra, at p. 562. If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers "public" and non-privileged, there is little left to either the right of privacy or the constitutional privilege.
Even if there were authority for the temerarious pronouncement in today's opinion, I would insist that such authority was ill-founded and ought not to be followed. There is no such authority. The Court's opinion can gain no strength beyond itself. The persuasiveness of its opinion is not enhanced by the endeavor of the majority of the Court, so needlessly reaching out for a constitutional issue, to rest its ominous inroads upon the Fifth Amendment not on the wisdom of their determination but on blind reliance upon non-persuasive authority.
MR. JUSTICE JACKSON, with whom MR. JUSTICE MURPHY agrees, dissenting.
The protection against compulsory self-incrimination, guaranteed by the Fifth Amendment, is nullified to whatever extent this Court holds that Congress may require a citizen to keep an account of his deeds and misdeeds and turn over or exhibit the record on demand of government inspectors, who then can use it to convict him. Today's decision introduces a principle of considerable moment. Of course, it strips of protection only business men and their records; but we cannot too often remind ourselves of the tendency of such a principle, once approved, to expand itself in practice "to the limits of its logic." That it has already expanded to cover a vast *71 area is apparent from the Court's citation of twenty-six federal statutes that present parallels to the situation here under review. It would, no doubt, simplify enforcement of all criminal laws if each citizen were required to keep a diary that would show where he was at all times, with whom he was, and what he was up to. The decision of today, applying this rule not merely to records specially required under the Act but also to records "customarily kept," invites and facilitates that eventuality.
The practice approved today obviously narrows the protections of the Fifth Amendment. We should not attribute to Congress such a purpose or intent unless it used language so mandatory and unmistakable that it left no alternative, and certainly should not base that inference on "legislative history" of such dubious meaning as exists in this case. Congress, if we give its language plain and usual meaning, has guarded the immunity so scrupulously as to raise no constitutional question. But if Congress had overstepped, we should have no hesitation in holding that the Government must lose some cases rather than the people lose their immunities from compulsory self-incrimination. However, in this case, the plain language of Congress requires no such choice. It does require, in my view, that this judgment be reversed.
MR. JUSTICE RUTLEDGE, dissenting.
With reservations to be noted, I agree with the views expressed by MR. JUSTICE JACKSON, and with MR. JUSTICE FRANKFURTER'S conclusions concerning the effect of the immunity provision, § 202 (g) of the Emergency Price Control Act.[1]
*72 With them I cannot accept the Court's construction of that section which reduces the statutory immunity to the scope of that afforded by the Fifth Amendment's prohibition against compulsory self-incrimination. This Court has not previously so decided.[2] Nor, in my judgment, *73 can the present decision be reconciled with the language of the statute or its purpose obvious on its face.
That wording compels testimony and the production of evidence, documentary or otherwise, regardless of any claim of constitutional immunity, whether valid or not.[3] But to avoid the constitutional prohibition and, it would seem clearly, also any delay in securing the information or evidence required, the Act promises immunity "for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence . . . in obedience to" the subpoena.[4]
The statute thus consists of a command and a promise. In explicit terms the promise is made coextensive with the command. It expressly precludes prosecution, forfeiture or penalty "for or on account of any transaction, matter or thing" concerning which evidence is produced in compliance with the subpoena.[5] Compelling testimony and giving immunity "for or on account of any transaction, matter or thing, concerning which he may testify" are very different from compelling it and promising that, when given, the person complying "shall have only the immunity given by the Fifth Amendment and no more." To constrict the statute's wording so drastically is not simply to interpret, it is to rewrite the congressional *74 language and, in my view, its purpose. If Congress had intended only so narrow a protection, it could easily have said so without adding words to lead witnesses and others to believe more was given.
It may be, however, notwithstanding the breadth of the promissory terms, that the statutory immunity was not intended to be so broad as to cover situations where the claim of constitutional right precluded is only frivolous or insubstantial or not put forward in good faith.[6] And if, for such a reason, the literal breadth of the wording may be somewhat cut down, restricting the statute's immunity by excluding those situations would neither restrict the effect of the statutory words to that of the Amendment itself nor give them the misleading connotation of the Court's construction. Such a construction would not be departing widely from either the statute's terms or their obvious purpose to give immunity broader than the Amendment's, and would be well within the bounds of statutory interpretation. On the other hand, the Court's reduction of the statutory wording to equivalence in effect with the constitutional immunity, nearly if not quite makes that wording redundant or meaningless; in any event, it goes so far in rewriting the statutory language as to amount to invasion of the legislative function.
Whether one or the other of the two broader views of the statute's effect is accepted, therefore, it is neither necessary nor, I think, reasonable or consistent with the statutory wording and object or with this Court's function as strictly a judicial body to go so far in reconstructing what Congress has done, as I think results from reducing the statutory immunity to equivalence with the constitutional one.
*75 Since it is not contended that there was not full compliance with the subpoena in this case, that compliance was excessive in the presently material portions of the evidence or information produced, or that the claim of constitutional immunity precluded was frivolous, insubstantial or not made in good faith, I think the judgment should be reversed by applying the statutory immunity, whether in one or the other of the two forms which may be applied.
In this view I am relieved of the necessity of reaching the constitutional issue resulting from the Court's construction, and I express no opinion upon it except to say that I have substantial doubt of the validity of the Court's conclusion and indicate some of the reasons for this. I have none that Congress itself may require the keeping and production of specified records, with appropriate limitations, in connection with business matters it is entitled to and does regulate. That is true not only of corporate records, Wilson v. United States, 221 U.S. 361, but also of individual business records under appropriate specification and limitations, as the numerous instances cited in MR. JUSTICE FRANKFURTER'S opinion illustrate.
But I seriously doubt that, consistently with the Fourth Amendment, as well as the prohibition of the Fifth against compulsory self-incrimination, Congress could enact a general law requiring all persons, individual or corporate, engaged in business subject to congressional regulation to produce, either in evidence or for an administrative agency's or official's examination, any and all records, without other limitation, kept in connection with that business. Such a command would approach too closely in effect the kind of general warrant the Fourth Amendment outlawed. That would be even more obviously true, if there were any difference, in case Congress *76 should delegate to an administrative or executive official the power to impose so broad a prohibition.
The authority here conferred upon the Administrator by the Emergency Price Control Act, in reference to record-keeping and requiring production of records, closely approaches such a command. Congress neither itself specifies the records to be kept and produced upon the Administrator's demand nor limits his power to designate them by any restriction other than that he may require such as "he deems necessary or proper to assist him," § 202 (a), (b), (c), in carrying out his functions of investigation and prescribing regulations under, as well as of administration and enforcement of, the Act. And as the authority to specify records for keeping and production was carried out by the Administrator, the only limitation imposed was that the records should be such as had been "customarily kept." § 14 (b), M.P.R. 426, 8 Fed. Reg. 9546, 9549. Such a restriction is little, if any, less broad than the one concerning which I have indicated doubt that Congress itself could enact consistently with the Fourth Amendment.
The authorization therefore is one which raises serious question whether, by reason of failure to make more definite specification of the records to be kept and produced, the legislation and regulations involved here do not exceed the prohibition of the Fourth Amendment against general warrants and unreasonable searches and seizures. There is a difference, of course, and often a large one, between situations where evidence is searched out and seized without warrant, and others where it is required to be produced under judicial safeguards. But I do not understand that in the latter situation its production can be required under a warrant that amounts to a general one. The Fourth Amendment stands as a barrier to judicial and legislative as well as executive or administrative excesses in this respect.
*77 Although I seriously question whether the sum of the statute, as construed by the Court, the pertinent regulations, and their execution in this case does not go beyond constitutional limitations in the breadth of their inquiry, I express no conclusive opinion concerning this, since for me the statutory immunity applies and is sufficient to require reversal of petitioner's conviction.
NOTES
[1] 56 Stat. 23, as amended, 50 U.S.C. App. § 901.
[2] "No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." 50 U.S.C. App. § 922 (g).
The Compulsory Testimony Act of 1893 provides: "No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission . . . on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena. . . ."
[3] Section 14 of Maximum Price Regulation 426, 8 Fed. Reg. 9546, 9548-49 (1943) provides:
"Records. (a) Every person subject to this regulation shall, so long as the Emergency Price Control Act of 1942, as amended, remains in effect, preserve for examination by the Office of Price Administration all his records, including invoices, sales tickets, cash receipts, or other written evidences of sale or delivery which relate to the prices charged pursuant to the provisions of this regulation.
"(b) Every person subject to this regulation shall keep and make available for examination by the Office of Price Administration for so long as the Emergency Price Control Act of 1942, as amended, remains in effect, records of the same kind as he has customarily kept, relating to the prices which he charges for fresh fruits and vegetables after the effective date of this regulation and in addition as precisely as possible, the basis upon which he determined maximum prices for these commodities."
[4] Some of the statutes which include such provisions, applicable to the records of non-corporate as well as corporate business enterprises, are listed below:
Shipping Act, 1916 [46 U.S.C. §§ 826, 827, 814, 817, 820].
Packers and Stockyards Act, 1921 [7 U.S.C. §§ 221, 222].
Commodity Exchange Act of 1922 [7 U.S.C. §§ 15, 6, 7a].
Perishable Agricultural Commodities Act, 1930 [7 U.S.C. § 499m, 499i].
Communications Act of 1934 [47 U.S.C. §§ 409, 203, 211, 213 (f), 220, 412].
Securities Exchange Act of 1934 [15 U.S.C. §§ 78q, 78u].
Federal Alcohol Administration Act, 1935 [27 U.S.C. §§ 202 (c), 204 (d); 26 U.S.C. § 2857; 15 U.S.C. §§ 49, 50].
Federal Power Act, 1935 [16 U.S.C. §§ 825 (a), 825f (g)].
Industrial Alcohol Act of 1935 [26 U.S.C. §§ 3119, 3121 (c)].
Motor Carrier Act of 1935 [49 U.S.C. §§ 305 (d), 304 (a) (1), 311 (d), 317, 318, 320, 322 (g)].
National Labor Relations Act, 1935 [29 U.S.C. §§ 156, 161].
Social Security Act, 1935 [42 U.S.C. § 405 (a), (d), (e), (f)].
Merchant Marine Act, 1936 [46 U.S.C. §§ 1124, 1211, 1114 (b)].
Bituminous Coal Act of 1937 [15 U.S.C. (1940 ed.) §§ 838, 833 (a),
(e), (k), 840 (terminated, as provided in § 849)].
Civil Aeronautics Act of 1938 [49 U.S.C. §§ 644, 483, 487, 492, 622 (e) and (g), 673].
Fair Labor Standards Act of 1938 [29 U.S.C. §§ 209, 211; 15 U.S.C. §§ 49, 50].
Natural Gas Act, 1938 [15 U.S.C. § 717a, g, m].
Railroad Unemployment Insurance Act, 1938 [45 U.S.C. §§ 362 (a), (b), (c), (l), 359].
Water Carriers Act of 1940 [49 U.S.C. §§ 916, 906, 913, 917 (d)].
Freight Forwarders Act, 1942 [49 U.S.C. §§ 1017 (a), (b), (d), 1005, 1012, 1021 (d)].
In addition to the Price Control Act, the other major regulatory statutes enacted in response to the recent wartime exigencies also contain these provisions:
Second War Powers Act [50 U.S.C. App. §§ 633, subsecs. 2 (a) (3), (4)].
Stabilization Act of 1942 [50 U.S.C. App. §§ 967 (b), 962].
War and Defense Contract Acts [50 U.S.C. App. § 1152 (a) (3), (4)].
War Labor Disputes Act [50 U.S.C. App. § 1507 (a) (3), (b)].
Very recent regulatory statutes, whose construction may also be affected or determined by the ruling of the Court in the present case, include:
Atomic Energy Act of 1946 [42 U.S.C. §§ 1812 (a) (3), 1810 (c)].
Labor Management Relations Act of 1947, § 101, subsecs. 11, 6; § 207 (c), 61 Stat. 136, 150, 140, 155.
[5] Italics have been added here and in all other quotations in which they appear, unless otherwise noted.
[6] ". . . the existing authority over prices is indirect and circumscribed and operates through measures which are not appropriate or applicable in all circumstances. It has further been weakened by those who purport to recognize need for price stabilization yet challenge the existence of any effective power. In some cases, moreover, there has been evasion and bootlegging; in other cases the Office of Price Administration and Civilian Supply has been openly defied.
"Faced now with the prospect of inflationary price advances, legislative action can no longer prudently be postponed. Our national safety demands that we take steps at once to extend, clarify, and strengthen the authority of the Government to act in the interest of the general welfare." H. Doc. No. 332, 77th Cong., 1st Sess. 3 (1941).
[7] See 87 Cong. Rec. 9148 (1941) for the precise wording of § 202, which was then numbered § 211.
The full text of § 202 as enacted is as follows:
"(a) The Administrator is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order under this Act, or in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder.
"(b) The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to make and keep records and other documents, and to make reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpena require any such person to appear and testify or to appear and produce documents, or both, at any designated place.
"(c) For the purpose of obtaining any information under subsection (a), the Administrator may by subpena require any other person to appear and testify or to appear and produce documents, or both, at any designated place.
"(d) The production of a person's documents at any place other than his place of business shall not be required under this section in any case in which, prior to the return date specified in the subpena issued with respect thereto, such person either has furnished the Administrator with a copy of such documents (certified by such person under oath to be a true and correct copy), or has entered into a stipulation with the Administrator as to the information contained in such documents.
"(e) In case of contumacy by, or refusal to obey a subpena served upon, any person referred to in subsection (c), the district court for any district in which such person is found or resides or transacts business, upon application by the Administrator, shall have jurisdiction to issue an order requiring such person to appear and give testimony or to appear and produce documents, or both; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The provisions of this subsection shall also apply to any person referred to in subsection (b), and shall be in addition to the provisions of section 4 (a).
"(f) Witnesses subpenaed under this section shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States.
"(g) No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege.
"(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless he determines that the withholding thereof is contrary to the interest of the national defense and security.
"(i) Any person subpenaed under this section shall have the right to make a record of his testimony and to be represented by counsel." 56 Stat. 23, 30, as amended by § 105 of the Stabilization Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C. § 922.
[8] 87 Cong. Rec. at 9232; see also id. at 9226.
[9] Id. at 9231.
[10] Id. at 9233.
[11] As pointed out by the Senate Committee, ". . . in amending the House bill, the committee has sought to strengthen it. That bill, when we were not actually at war, might have sufficed. If the authority granted had proved inadequate, additional powers might have been sought and there might have been time to do so. But the swiftly moving pace of war, with evidences of inflation already apparent, leaves little time for the luxury of experiment. The need for price stability is urgent. . . ." S. Rep. No. 931, 77th Cong., 2d Sess. 3 (Jan. 2, 1942).
[12] Hearings before the Senate Committee on Banking and Currency on H.R. 5990, 77th Cong., 1st Sess. 192 (1941). (The reference is contained in a brief filed with the Committee by the General Counsel of the Office of Price Administration.)
[13] Id. at 193.
It is apparently conceded that the written statement presented to the Senate Committee by the General Counsel of the OPA in its hearings sets forth the construction that this Court sustains in affirming the judgment of the Circuit Court of Appeals for the Second Circuit in this case. We may accord to the construction expounded during the course of the hearings at least that weight which this Court has in the past given to the contemporaneous interpretation of an administrative agency affected by a statute, especially where it appears that the agency has actively sponsored the particular provisions which it interprets. And we may treat those contemporaneous expressions of opinion as "highly relevant and material evidence of the probable general understanding of the times and of the opinions of men who probably were active in the drafting of the statute. As such, they are entitled to serious consideration . . ." White v. Winchester Club, 315 U.S. 32, 41 (1942). See also United States v. American Trucking Assns., 310 U.S. 534, 549 (1940); Hassett v. Welch, 303 U.S. 303, 310-311 (1938).
[14] Hearings, supra note 12, at 181; see also id. at 154, 179-80 (oral testimony), 190-200; 88 Cong. Rec. 61, 693-94 (1942); S. Rep. No. 931, 77th Cong., 2d Sess. 8-9, 19 (1942).
[15] Section 5, 40 Stat. 277 (1917). Although § 4 of the Lever Act, making it unlawful for any person to make any "unjust or unreasonable rate or charge" for handling or dealing in necessaries, was held unconstitutional because of lack of an ascertainable standard of guilt in United States v. Cohen Grocery Co., 255 U.S. 81 (1921), the validity of the licensing and record-keeping provisions was not challenged.
[16] Hearings, supra note 12, at 183; see also id. at 154.
[17] Id. at 184.
The Report of the Senate Committee, following these hearings, recognized the key importance of licensing provisions for effective enforcement of the statute, noting that the "broad licensing power" which had been given to the Food Administrator under the Lever Act "was extensively and effectively used." The Report specifically referred also to the experience of the Fuel Administration, which at first lacked the power to license, then discovered the need for the power, and after acquiring it, secured "highly effective" enforcement results. The Report concluded that ". . . where there are many sellers, as in retailing, for example, it is impossible to determine who is subject to control, much less enforce price regulations, without licensing. Of these facts industry is fully aware. Licensing provides a simple and direct control over violators. . . ." S. Rep. No. 931, 77th Cong., 2d Sess. 8-9.
Speaking critically of the Conference Report, Representative Gifford, who was a Manager on the part of the House and had refused to sign the Report and the Statement by the Managers, desbribed licensing then in practice in Canada as a parallel to the licensing proposed by the amended Bill. He called the attention of the House to the Canadian statement of policy: "These restrictions are not designed to curtail business operations in any way. But by placing every person who in any way handles the commodities named in the order under license, the Board will have the machinery with which to make speedy checks on available stocks and to police more effectively any price-fixing order which may be instituted." 88 Cong. Rec. 672 (1942). (Rep. Gifford quoted the statement from "a compiled brief on the licensing methods;" it appears, together with other data referred to by Rep. Gifford, in the section on licensing methods in the brief presented during the Senate hearings by the General Counsel of the OPA, cited supra note 12, at p. 188.)
[18] Hearings, supra note 12, at 184.
[19] In asking unanimous consent for the Committee to file its report on the next day, Senator Barkley, the Majority Leader and a member of the Committee, stated on the floor of the Senate on January 2, 1942, that these "hearings [held before the Senate Committee from December 9-17] have been in print for a week or two." 87 Cong. Rec. 10142. The Senate vote approving the House Bill as amended was not taken until January 10, more than two weeks after the hearings appeared in printed form. 88 Cong. Rec. 242. The House agreed to the Conference Report on January 26. Id. at 689. The Senate accepted the Conference Report on January 27. Id. at 725. And the Bill was approved and signed by the President on January 30. Id. at 911.
It is also of some interest to note the statement, contained in the Senate Report on the Bill, that a subcommittee which had been appointed immediately after the conclusion of the December 9-17 hearings "extensively revised and strengthened the House bill in the light of the hearings and the onslaught of war." S. Rep. No. 931, 77th Cong., 2d Sess. 6 (Jan. 2, 1942). We assume that this record of the Senate Committee proceedings merits the same presumption of regularity as the record of a county criminal court. Cf. Foster v. Illinois, 332 U.S. 134, 138 (1947).
[20] See Joint Hearings on S. 2475 and H.R. 7200 (Fair Labor Standards Act), 75th Cong., 1st Sess. 61 (1937).
[21] Hecht v. Malley, 265 U.S. 144, 153 (1924); see also Missouri v. Ross, 299 U.S. 72, 75 (1936); Sessions v. Romadka, 145 U.S. 29, 42 (1892).
[22] See digest of brief for appellant in Wilson v. United States, 55 L.Ed. 771, 773 (1911).
[23] Wilson v. United States, 221 U.S. 361, 380 (1911). Holmes, J., in Heike v. United States, 227 U.S. 131, 143 (1913), emphasized that the decision in Wilson went "upon the absence of constitutional privilege, not upon the ground of statutory immunity in such a case."
[24] Wilson, supra note 23, at 381. In a later decision involving the alleged ability of corporate officers to assert constitutional privilege in relation to records required to be kept under a regulatory statute, Hughes, J., speaking for the Court, further spelled out the implications of the Wilson case and of the "required records" doctrine:
". . . the transactions to which the required reports relate are corporate transactions subject to the regulating power of Congress. And, with regard to the keeping of suitable records of corporate administration, and the making of reports of corporate action, where these are ordered by the Commission under the authority of Congress, the officers of the corporation, by virtue of the assumption of their duties as such, are bound by the corporate obligation and cannot claim a personal privilege in hostility to the requirement." Baltimore & O.R. Co. v. I.C.C., 221 U.S. 612, 622-23 (1911).
Thus the significant element in determining the absence of constitutional privilege was the fact that the records in question had been validly required to be kept to enable the Commission "properly to perform its duty to enforce the law." Id. at 622. The fact that the individuals claiming the privilege were corporate officers was significant only in that the business transactions subject to the Interstate Commerce Act and the records required to be kept were corporate. And, as corporate officers, they were bound by the obligation imposed by the statute upon their corporation to keep the record. In other words, they were deemed custodians of the records for the Interstate Commerce Commission, not merely for the corporation. Had the transactions there regulated, and the records there required, concerned an unincorporated business, Justice Hughes' rationale sustaining the absence of constitutional privilege against self-incrimination would still apply with undiminished force.
This decision was cited with approval in United States v. Darby, 312 U.S. 100, 125 (1941), in support of the Court's holding that it is constitutional for Congress, as a means of enforcing the valid regulations imposed by the Fair Labor Standards Act, to require an employer to keep records of wages and hours of his employees. See note 42 infra.
[25] Other state supreme court decisions, subsequent to the Wilson case, similarly treat as non-privileged, records required by statute to be kept by such individuals as licensed fish dealers, Paladini v. Superior Court, 178 Cal. 369, 372-74, 173 P. 588, 590 (1918); junk dealers regulated by municipal ordinance, St. Louis v. Baskovitz, 273 Mo. 543, 201 S.W. 870 (1918), or by statute, State v. Legora, 162 Tenn. 122, 127-28, 34 S.W.2d 1056, 1057-58 (1931), cf. Rosenthal v. New York, 226 U.S. 260, 268-69 (1912); dealers in raw furs, State v. Stein, 215 Minn. 308, 9 N.W.2d 763 (1943); and licensed money lenders, Financial Aid Corp. v. Wallace, 216 Ind. 114, 117-119, 122-124, 23 N.E.2d 472, 474, 476 (1939).
[26] Heike, supra note 23, at 142.
[27] See analysis of the earlier provisos in 8 Wigmore, Evidence, 511 n. 9 (3d ed. 1940), and in the brief submitted by the Government in Heike, a digest of which appears at 227 U.S. 137. Whether the stronger wording in the Price Control Act and other recent enactments be deemed to indicate a "new legislative purpose," as the majority of the Court in United States v. Monia, 317 U.S. 424 (1943), ruled that it did in connection with a procedural point not involved in the present case or be deemed nothing more than "a careful rephrasing of a conventional statutory provision," as the dissenters in Monia, supra at 446, believed, the more stringent phrasing of the Price Control Act proviso must, in either view, be regarded as strengthening the applicability of the rule of construction of the Heike case.
The precise holding in Monia was that a witness before an investigatory body need not claim his privilege as a prerequisite to earning immunity under a pre-1933 statute which offered immunity without any reference to the need for making such a claim. The majority considered the Heike decision inapplicable to Monia because the relevant terms of the immunity proviso involved in the latter case were so plain and so sharply in contrast with the wording of the enactments after 1933, which (including the Price Control Act) expressly require the assertion of the claim, that Congress could not have intended the pre-1933 statute to require a witness to assert his claim. And it was emphasized that, to construe congressional intention otherwise in those circumstances, might well result in entrapment of witnesses as to testimony concededly privileged. We do not perceive such distinguishing factors in the case at bar, and accordingly consider the Heike rationale fully applicable here.
[28] See Judge Delehant's well-reasoned discussion, in Bowles v. Misle, 64 F. Supp. 835, 843 (1946), of the "public or semi-public" character of records kept by a non-corporate entrepreneur subject in his business to such governmental regulation: ". . . if the regulating authority may be intercepted altogether at the door of a regulated business in its quest of information touching the observance of the law and applicable regulations, its ministry must be fruitless. And it can be no more effective if, realistically viewed, the administrator's examination may be made only at a bargain which absolves the proprietor of the business from the sanctions, whether civil or criminal, by law provided for such violations of the regulations, and, therefore, of the law as examination may disclose. . . ."
Compare the dictum in United States v. Mulligan, 268 F. 893 (N.D.N.Y. 1920), that records required to be kept by an unincorporated businessman under the Lever Act were not privileged, and that information contained therein was available for use in criminal prosecutions against the record-keeper himself. Like the Price Control Act, the Lever Act contained a compulsory testimony immunity provision. § 25, 40 Stat. 285. The memorandum filed with the Senate Committee, cited supra note 12, at 194, specifically referred to the "well-stated" opinion in the Mulligan case.
[29] The extreme unlikelihood that such a distinction, not expressly stated anywhere in the Act, was nevertheless intended by Congress becomes even more apparent in the light of express provision in the statute, § 4 (a), making it unlawful for any person subject to the Act, whether in corporate or unincorporated business enterprise, to fail to comply with the record-keeping requirements of § 202 (b), and making it unlawful, § 205 (b), for any such person to make "any statement or entry false in any material respect in any document or report required to be kept or filed" under § 202 (b). Even in the absence of the judicial background highlighted by the rationale of the Wilson and Heike decisions, it would be difficult to imagine that records properly required to be kept by the Government, for government use in the administration of a regulatory statute, with penalties of fines and imprisonment applicable against any person subject to the statute who fails to keep those records or who falsifies entries in them, could still be regarded by Congress or the public as private records concerning which the recorder may assert a privilege against self-incrimination.
[30] The phrase "any requirements" appears also in the immunity provision of the Atomic Energy Act of 1946, 42 U.S.C. § 1812 (a) (3). There, as in the Price Control Act, some of the requirements referred to would, in the absence of the section, be excusable because of privilege e.g., compelled oral testimony while other requirements, including the compulsory production of records which had been kept pursuant to the statute (§ 1810 [c]), would, under the Wilson doctrine, have the same non-privileged (and hence non-immunizing) status as the sales record involved in the present case. Compare also the phraseology used in such statutes as the War and Defense Contract Acts, 50 U.S.C. App. § 1152 (a) (3), (4), and Freight Forwarders Act (1942), 49 U.S.C. § 1017 (a). (b), (d).
[31] Compare the paraphrase of § 202 (g) contained in the Committee Reports: ". . . Although no person is excused from complying with any requirement of this subsection because of his privilege against self-incrimination, the immunity provisions of the Compulsory Testimony Act of February 11, 1893, are made applicable with respect to any individual who specifically claims such privilege." S. Rep. No. 931, 77th Cong., 2d Sess. 21; H.R. Rep. No. 1409, 77th Cong., 1st Sess. 9. (Italics added here, as elsewhere unless otherwise noted.)
[32] Section 6 of the Interstate Commerce Act of Feb. 4, 1887, c. 104, 24 Stat. 380, required every common carrier subject to the provisions of the statute to file with the Commission copies of its schedules and tariffs of rates, fares, and charges, and of all contracts and agreements between carriers.
[33] It is further suggested that the presence of statutory provisions for confidential treatment, in certain limited respects, of information obtained by the Administrator is inconsistent with the views of this opinion. We find no such inconsistency in the presence of §§ 4 (c) and 202 (h), the provisions which specify the types of confidential safeguards intended.
"Section 4 (c) affords protection to those persons required to disclose information to the Administrator by making it unlawful for any officer or employee of the Government, or for any adviser or consultant to the Administrator in his official capacity, to disclose or to use for his personal benefit, any information obtained under the bill. Further provision for confidential treatment of such information is found in section 202 (b) [changed in Conference to § 202 (h)]. . . . Section 202 (b) gives further protection to persons furnishing information to the Administrator under the bill by directing the Administrator, upon the request of the party furnishing such information, or if he deems such information confidential, not to disclose such information unless he deems that the public interest requires such disclosure." S. Rep. No. 931, 77th Cong., 2d Sess. 20-21.
This is substantially the same sort of confidential treatment provided for by the Hepburn Act of 1906, 34 Stat. 594, amending the Interstate Commerce Act: "Any examiner who divulges any fact or information which may come to his knowledge during the course of such examination, except in so far as he may be directed by the Commission or by a court or judge thereof, shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not more than five thousand dollars or imprisonment for a term not exceeding two years, or both." 49 U.S.C. § 20 (7) (f). Numerous other statutes have incorporated almost identically worded provisions. See e.g., Motor Carrier Act of 1935, 49 U.S.C. § 322 (d).
In statutes such as these, where Congress validly distinguishes required records from private papers, with respect to the availability of the required documents as evidence in criminal or other proceedings to enforce the statute for whose effectuation they are kept, nothing in logic nor historical practice requires Congress at the same time to treat the records as public in the sense that they be open at all times to scrutiny by the merely curious. See Coleman v. United States, 153 F.2d 400, 402-04 (C.C.A. 6, 1946). Congress expressly foreclosed such a result in the Emergency Price Control Act, and this opinion neither requires nor permits it.
[34] Heike, supra note 23, at 141.
[35] Id. at 141-42. It would appear that the persuasive brief for the Government in this case, prepared with the assistance of eminent counsel, called forth a Holmesian echo.
[36] See Heike, supra note 23, at 142; Brown v. Walker, 161 U.S. 591, 594-5 (1896); Hale v. Henkel, 201 U.S. 43, 67 (1906). See also the statement made in the House by Representative Wise, of the Committee on Interstate and Foreign Commerce, in presenting the bill which became the basis of the 1893 Compulsory Testimony Act: "The whole scope and effect of the act is simply to meet the decision rendered recently by the Supreme Court in the case known as `the Councilman [sic] case.'" 24 Cong. Rec. 503 (1893).
[37] 88 Cong. Rec. 700 (1942).
[38] Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943).
[39] Heike, supra note 23, at 142.
[40] United States v. American Trucking Assns., 310 U.S. 534, 543 (1940); see also Missouri Pacific R. Co. v. Boone, 270 U.S. 466, 472 (1926).
"A restrictive interpretation should not be given a statute merely because Congress has chosen to depart from custom or because giving effect to the express language employed by Congress might require a court to face a constitutional question." United States v. Sullivan, 332 U.S. 689, 693 (1948).
[41] Cf. Yakus v. United States, 321 U.S. 414, 422 (1944).
[42] Davis v. United States, 328 U.S. 582, 589-90 (1946). See also United States v. Darby, 312 U.S. 100, 125 (1941) ("Since . .. Congress may require production for interstate commerce to conform to those conditions [wages and hours], it may require the employer, as a means of enforcing the valid law, to keep a record showing whether he has in fact complied with it. The requirement for records even of the intrastate transaction is an appropriate means to the legitimate end. . . ."); Arrow Distilleries v. Alexander, 109 F.2d 397, 404-05 (1940); Di Santo v. United States, 93 F.2d 948 (1937). Cf. Rodgers v. United States, 138 F.2d 992, 995-96 (1943).
In Boyd v. United States, 116 U.S. 616 (1886), the Court held unconstitutional, as repugnant to the Fourth and Fifth Amendments, an 1874 revenue statute which required the defendant or claimant, on motion of the Government attorney, to produce in court his private books, invoices and papers, or else the allegations of the Government were to be taken as confessed. The document to which the statute had been applied in that case was an invoice, which the Government, as well as the defendant, treated throughout the trial and appellate proceedings as a private business record. The Government defended the constitutionality of the statute thus applied on the ground that the action was not against the claimants, but was merely a civil action in rem for the forfeiture of merchandise, in which action the claimants had voluntarily intervened. It argued that in a forfeiture action, private books and papers produced under compulsion have no higher sanctity than other property, since the provision in the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself" applies only to criminal proceedings in personam.
In rejecting the Government's contention, the opinion of the majority of the Court proceeded mainly upon a complex interpretation of the Fourth Amendment, taken as intertwined in its purpose and historical origins with the Fifth Amendment. Under that view, "a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit [i.e., a suit for a penalty or forfeiture] is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure and an unreasonable search and seizure within the meaning of the Fourth Amendment." Id. at 634-35; see also id. at 621 et seq. In other words, the majority opinion construed the prohibition of the Fourth Amendment as applying in the foregoing circumstances "to a returnable writ of seizure describing specific documents in the possession of a specific person." 8 Wigmore, Evidence 368 (3d ed. 1940); see Hale v. Henkel, 201 U.S. 43, 71-72 (1906).
Holding this view of the Fourth Amendment, the majority of the Court nevertheless carefully distinguished the "unreasonable search and seizure" effected by the statute before it from the "search and seizure" which Congress had provided for in revenue acts that required manufacturers to keep certain records, subject to inspection (see, e.g., Act of July 20, 1868, c. 186, §§ 19, 45, 15 Stat. 133, 143, regulating distillers and rectifiers): ".. . the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. . . . But, when examined with care, it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. . . ." Id. at 623-24.
[43] Davis, supra note 42, at 602.
[44] Ibid.
[45] See dissenting opinion in Davis, supra note 42, at 614 n. 9. See also Amato v. Porter, 157 F.2d 719 (1946); Coleman v. United States, 153 F.2d 400 (1946).
[46] See also the rationale set forth in 8 Wigmore, Evidence § 2259c (3d ed. 1940), a section which was cited with approval by the opinion of the Court in Davis, supra note 42, at 590:
"The State requires the books to be kept, but it does not require the officer to commit the crime. If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law. The State announced its requirement to keep the books long before there was any crime; so that the entry was made by reason of a command or compulsion which was directed to the class of entries in general, and not to this specific act. The duty or compulsion to disclose the books existed generically, and prior to the specific act; hence the compulsion is not directed to the criminal act, but is independent of it, and cannot be attributed to it. . . . The same reasoning applies to records required by law to be kept by a citizen not being a public official, e. g. a druggist's report of liquor sales, or a pawnbroker's record of pledges. The only difference here is that the duty arises not from the person's general official status, but from the specific statute limited to a particular class of acts. The duty, or compulsion, is directed as before, to the generic class of acts, not to the criminal act, and is anterior to and independent of the crime; the crime being due to the party's own election, made subsequent to the origin of the duty." (Italics as in the original.)
[1] "A decision could be made either way without contradicting the express words of the act, or, possibly, even any very clear implication." Holmes, C.J., in Hooper v. Bradford, 178 Mass. 95, 97.
[2] The entire § 202 of the Emergency Price Control Act of 1942, as amended, is as follows:
"(a) The Administrator is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order under this Act, or in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder.
"(b) The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to make and keep records and other documents, and to make reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpena require any such person to appear and testify or to appear and produce documents, or both, at any designated place.
"(c) For the purpose of obtaining any information under subsection (a), the Administrator may by subpena require any other person to appear and testify or to appear and produce documents, or both, at any designated place.
"(d) The production of a person's documents at any place other than his place of business shall not be required under this section in any case in which, prior to the return date specified in the subpena issued with respect thereto, such person either has furnished the Administrator with a copy of such documents (certified by such person under oath to be a true and correct copy), or has entered into a stipulation with the Administrator as to the information contained in such documents.
"(e) In case of contumacy by, or refusal to obey a subpena served upon, any person referred to in subsection (c), the district court for any district in which such person is found or resides or transacts business, upon application by the Administrator, shall have jurisdiction to issue an order rdquiring such person to appear and give testimony or to appear and produce documents, or both; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The provisions of this subsection shall also apply to any person referred to in subsection (b), and shall be in addition to the provisions of section 4 (a).
"(f) Witnesses subpenaed under this section shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States.
"(g) No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege.
"(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless he determines that the withholding thereof is contrary to the interest of the national defense and security.
"(i) Any person subpenaed under this section shall have the right to make a record of his testimony and to be represented by counsel." 56 Stat. 23, 30, as amended by § 105 of the Stabilization Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C. App. § 922.
[3] Technically there is an additional or fifth requirement to furnish information "under oath or affirmation or otherwise" but this requirement is really covered by the other four.
[4] The Administrator required this petitioner to keep "records of the same kind as he has customarily kept." § 14 (b) of Maximum Price Regulation No. 426, 8 Fed. Reg. 9546. As a practical matter, therefore, the statute as construed by the Court provides immunity only for compelled oral testimony.
[5] But cf. Carroll, Through the Looking Glass, c. 6:
"`The question is,' said Alice, `whether you can make words mean so many different things.'
"`The question is,' said Humpty Dumpty, `which is to be master that's all.'"
[6] See H.R. 5479, 77th Cong., 1st Sess., as introduced on August 1, 1941, in the House of Representatives and referred to the Committee on Banking and Currency, at p. 8; H.R. 5990, 77th Cong., 1st Sess., as reported out by the Committee on November 7, 1941, at p. 12 (at the conclusion of the hearings on H.R. 5479, the Committee directed its chairman to introduce this new bill representing the old bill as amended by the Committee in executive session; see H.R. Rep. 1409, 77th Cong., 1st Sess., p. 3); H.R. Rep. 1409, supra, at p. 9; 87 Cong. Rec. 9073, 9231; id. at 9232 (Wolcott amendment to strike out all of § 202 because previous amendment of the bill rendered this section for "obtaining information" redundant); id. at 9233 (Wolcott amendment adopted by the House); S. Rep. No. 931, 77th Cong., 2d Sess., p. 21 (H.R. 5990, as passed by the House, amended by reinstating § 202 for the purpose of "obtaining information"); and see finally the Conference Report accompanying H.R. 5990, H.R. Rep. 1658, 77th Cong., 2d Sess., pp. 25-26 (agreeing to § 202).
[7] Indeed, the only reference to the immunity provision in the legislative documents, see footnote 6 supra, consists merely of practically verbatim repetitions of the provision.
[8] The House originally struck out the entire § 202 because a previously adopted amendment had made the section "redundant." 87 Cong. Rec. 9232-9233. The previously adopted amendment had inserted a § 203 (a) which simply provided that:
"The Administrator and the Board of Administrative Review or any member or commissioner thereof may administer oaths and affirmations, may require by subpena or otherwise the attendance and testimony of witnesses and the production of documents at any designated place. No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 ed., title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." Id. at 9226.
As passed by the House, then, the bill would have authorized the Administrator to require the production of the records here in issue, but there would have been no question of their being "public" records, and petitioner would clearly have been accorded the immunity herein claimed. The House Managers yielded as to the record-keeping requirements and the reinstatement of the entire § 202, but there is no mention in their report of the provisions of subsection (g), let alone any indication that there was any difference intended in the scope of the immunity accorded by the two bills.
[9] Hearings before the Senate Committee on Banking and Currency on H.R. 5990, 77th Cong., 1st Sess., at pp. 68-71, 112-23, 144-60, 174-81, 550-53.
[10] Id. at 154, 175, 180-81.
[11] See footnote 8 supra.
[12] Every reference in the Court's opinion to p. 181 et seq. of the hearings is to the General Counsel's brief an exhibit not to oral testimony.
[13] I do not dispute either (a) that the hearings (including the brief as an exhibit thereto) were printed and available before the Senate passed the bill, or (b) that there is a possibility that a curious Senator (but not a Representative) might have read all this fine print. I mean merely to suggest (a) that in view of the times, the typography, and the length of the text, the chances are remote, and (b) that in view of the importance of the issue it is indeed a hazardous matter to attribute positive congressional meaning to such an improbable source. While it may be presumed that the Senate subcommittee revised the House bill "in the light of the hearings," all that means is that they heard what they heard it does not mean that they read everything they might have read. It would be enough to attribute to a diligent committeeman familiarity with transcribed oral testimony of such volume as that on this bill. But cf. id. at 15: "Senator BARKLEY. Mr. Chairman, none of us have read the hearings in the House or maybe a few of us have"; id. at 26: "Senator TAFT. I have not read the House hearings, I am ashamed to say."
On January 26, 1942, Representative Gifford stated on the floor of the House:
"But this licensing business, `Compulsory loyalty will crack sooner than the genuine kind.' During the last World War it was loyalty by cooperation. They had licensing, yes, on food products and on fuel, but little of anything else. If the licensee was punished, it was only a slap on the wrist. If he would contribute to the Red Cross he was forgiven. I have a compiled brief on the licensing methods that I could go into at length. An hour would be necessary to properly discuss it and to recite the experiences of ours and other nations. Canada now has it. Let me read to you their statement of policy. These restrictions are not designed to curtail business operations in any way. But by placing every person who in any way handles the commodities named in the order under license, the Board will have the machinery with which to make speedy checks on available stocks and to police more effectively any price-fixing order which may be instituted." (88 Cong. Rec. 672.)
To trace knowledge of the O.P.A. brief to a congressional reader by assuming from this statement that Representative Gifford, who opposed the adoption of these provisions of the bill, was such a reader, and from that to attribute to Congress knowledge of what was in an exhibit to a committee hearing, is so attenuated a process of inferential reasoning as to discredit the whole paraphernalia of legislative history. That the Congress itself does not care to be charged with knowledge of all the extraneous matter for which either House has granted leave to print in the Record is apparent from the rules of the Joint Committee on Printing providing that "the same shall be published in the Appendix" and "in 6 1/2-point type." See Cong. Rec., Dec. 11, 1947, p. A5039. There is, moreover, little basis for concluding that the Gifford "compiled brief" was the O.P.A. brief different briefs frequently quote from the same authority. On the contrary, the O.P.A. brief hardly presented the argument that "Compulsory loyalty will crack sooner than the genuine kind," nor did it contain material demonstrating either the narrow scope or the weaknesses of World War I licensing.
[14] Putting the word "enforcement" in § 202 (a) in italics does little to solve our problem of statutory construction for enforcement means enforcement. The word is hardly enervated by the extension of immunity to the person compelled to disclose his books and records. The information thus obtained might well assist the Administrator in the enforcement of the Act against the suppliers of, buyers from, or competitors of the owner of the records. As to his suppliers, the records would of course disclose compliance with maximum price regulations; as to the buyers, many regulations established maximum price on a cost-plus basis and the information obtained would be essential to proof of violation; as to the competitors, many regulations established maximum price for new sellers on the basis of their closest competitors, and here again the information obtained might well be essential to the enforcement of the Act.
[15] Needless to say, the constitutionality of the Fifth Amendment is not raised!
[16] For the text of § 202 (h) see note 2 supra. H.R. 5479 as originally introduced (see note 6 supra) would have left it to the Administrator to determine whether the information obtained should be deemed confidential. The bill was changed by the House Committee to its final form whereby the person furnishing the information could request confidential treatment so as to give such persons "further protection." H.R. Rep. 1409, 77th Cong., 1st Sess., p. 9. "Further" meant in addition to the statutory immunity afforded by § 202 (g)! Ibid.
[17] See summary of argument for the United States, 221 U.S. at 366. The Lehmann Brief deserves reading.
[18] See note 14 supra.
[19] The Boyds had contracted to supply plate glass to the Government on a duty-free price basis. They contended that they had fulfilled this contract out of their stock on hand. They had previously secured a free entry of 29 cases of plate glass and claimed that this shipment replaced in part the glass that they had furnished the Government; the Government asserted that that shipment contained more than the amount of the glass furnished. After the Boyds had secured a free permit and entry of a second shipment of 35 cases of plate glass, but before delivery to them, the goods were seized and the free permit was revoked. In the proceedings for the forfeiture of the 35 cases, the Government, pursuant to the statutory procedure held unconstitutional by the Court, sought and secured production from the Boyds of the invoice covering the first shipment of the 29 cases. This invoice was a "record required to be kept by statute." The Act of July 31, 1789, required the importer to make an official entry with the collector at the port of arrival and there produce the original invoice to the collector. 1 Stat. 29, 39-40; as amended by the Act of August 4, 1790, 1 Stat. 145, 161-62; as amended by the Act of March 2, 1799, 1 Stat. 627, 655-56 (invoice must be signed by collector; and see form of oath required to accompany invoice); as amended by the Act of April 20, 1818, 3 Stat. 433, 434, 436; as amended by the Act of March 1, 1823, 3 Stat. 729-30 (no entry without invoice unless importer gives bond to secure production of invoice within stated period), 737 (invoice, certified with collector's official seal, conclusive evidence of value of imported goods in any court of the United States); as amended by the Act of August 30, 1842, 5 Stat. 548, 564-65 (collector authorized to examine any importer and to require production of invoices); as amended by the Act of March 3, 1863, 12 Stat. 737-38 (required invoices to be in triplicate and indorsed prior to shipment to this country by a consular officer who "shall deliver to the person producing the same one of said triplicates, to be used in making entry of said goods, wares, or merchandise; shall file another in his office, to be there carefully preserved; and shall, as soon as practicable, transmit the remaining one to the collector of the port of the United States at which it shall be declared to be the intention to make entry of said goods, wares, or merchandise"), 740 (penalty for wilful destruction or concealment of invoices) and (district judge where it appears to his satisfaction that fraud on revenue has been committed or attempted shall authorize collector to seize invoices); as amended by the Act of June 30, 1864, 13 Stat. 202, 217-18 (invoice must be made out in the weights and measures of the country from which importation made); as amended by the Act of July 18, 1866, 14 Stat. 178, 187 (seizure of invoices); as amended by the Act of March 2, 1867, 14 Stat. 546, 547 (seizure of invoices); as amended by the Act of June 22, 1874, 18 Stat. 186, 187 (§ 5 seizure of invoices held unconstitutional in Boyd case). For administrative requirements as to form, contents, filing and keeping of invoices, in effect at time of entry involved in Boyd case, see General Regulations under the Customs and Navigation Laws (1884) Arts. 314-34; see also Elmes, Customs (1887) c. VII.
[1] 56 Stat. 23, 30 [§ 202 (g)], as amended, 50 U.S.C. App. § 901, incorporating the provisions of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, quoted in the Court's opinion in note 2.
[2] Neither Heike v. United States, 227 U.S. 131, nor Wilson v. United States, 221 U.S. 361, principally relied upon by the Court, approached such a ruling.
The Wilson case dealt only with corporate records, and the claim of a corporate officer having their custody to constitutional immunity against being required to produce them. None were required by law to be kept, in the sense that any federal law required that they be kept and produced for regulatory purposes. The only ruling was that a corporate officer has no personal immunity against producing corporate records, which are of course not his own, and that the corporation has no immunity of its own under the Fifth Amendment's guaranty. The decision is not pertinent to the presently tendered problem.
The Heike decision is equally not apropos. The exact ruling was that the evidence, from the production of which the claimed right of immunity, constitutional as well as statutory, arose, "did not concern any matter of the present charge. Not only was the general subject of the former investigation wholly different, but the specific things testified to had no connection with the facts now in proof much closer than that they all were dealings of the same sugar company." 227 U.S. 131, 143. The actual ruling therefore, apart from the fact that a corporate officer claimed immunity in large part for producing corporate records, see id., 142-143, was that the petitioner had not brought himself within the scope of the statutory authorization, namely, because the "transaction, matter or thing" concerning which he had testified had no substantial connection with the matters involved in his prosecution. The decision is authority for nothing more than that the immunity at the most does not attach when the constitutional claim precluded, but said to bring the statute into play, is insubstantial. The dictum stressed in the Court's opinion that the statute "should be construed, so far as its words fairly allow the construction, as coterminous with" (P. 142) the constitutional immunity, not only was unnecessary, but as the clause itself emphasized explicitly negatives exact equivalence. (Emphasis added.)
[3] The wording of the Compulsory Testimony Act neither requires nor suggests that the right to the immunity given should turn on the validity or invalidity of the constitutional claim which is precluded. But at the least the Act would seem clearly to cover both valid and substantially doubtful ones.
[4] See the text of the Compulsory Testimony Act of 1893 quoted in note 2 of the Court's opinion.
[5] The express limitation of the immunity to testimony or evidence produced in obedience to the subpoena excludes immunity for volunteered testimony or evidence, i.e., such as is given in excess of the subpoena's requirement. But the terms of the statute purport to exclude no other.
[6] Cf. Heike v. United States, 227 U.S. 131. See note 2 supra. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1682274/ | 966 So. 2d 967 (2007)
PADRON
v.
McDONOUGH.
No. SC07-1450.
Supreme Court of Florida.
September 4, 2007.
Decision without published opinion. Hab. Corp. denied as procedurally barred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625954/ | 464 So. 2d 987 (1985)
Edwin J. BROUSSARD and Ethel M. Broussard,
v.
YELLOW FREIGHT LINES, INC.[1], Prentiss Mars, XYZ Insurance Company, City of Baton Rouge, ABC Insurance Company and the Louisiana Department of Transportation and Development.
No. 84 CA 0020.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
*988 Steven B. Witman, New Orleans, for plaintiff-appellant Edwin J. Broussard and Ethel M. Broussard.
Robert T. Talley, Baton Rouge, for defendant-appellee State of La., Through the Dept. of Transp. and Development.
Before COLE, CARTER and LANIER, JJ.
CARTER, Judge.
This case arose out of a truck-motorcycle collision which resulted in the death of the 24-year old motorcycle rider, DeWayne J. Broussard. His parents brought this suit against Yellow Freight System, Inc., its driver (Prentiss Mars), the City of Baton Rouge, the Louisiana Department of Transportation and Development (Department), and their insurers. Prior to trial, all parties except the Department were dismissed.[2] From the trial court judgment finding that the actions of the decedent were the sole proximate cause of the accident and the absence of negligence[3] on the part of the Department, plaintiffs appeal.
FACTS
On October 27, 1980, between 4:00 and 5:00 p.m., Broussard went to Bill's Body Shop at 6443 Airline Highway in Baton Rouge. A light rain was falling. Mr. George Guin, a mechanic, testified that he had completed some repairs on a motorcycle that Broussard's father had brought to the shop, and Broussard wanted to testdrive it. Broussard left the shop on the motorcycle, traveling down the gravel driveway leading to Airline Highway. At this location, Airline Highway runs roughly north-south and is a divided, four-lane highway with a ten-foot paved shoulder. Bill's Body Shop is located on the east side of Airline. At the end of the driveway there *989 were some large holes[4] which ran along the outside edge of the paved shoulder. It was stipulated that the Department had the responsibility to maintain this gravel portion of the shoulder. It was further stipulated by the parties that, at the time of the accident, Broussard's blood alcohol content was .11 percent by weight.
The testimony regarding Broussard's actions immediately prior to the accident is conflicting. One witness stated that he observed Broussard travel up and down the driveway several times, turning around in the northbound traffic lanes of Airline each time. He was not traveling at a high rate of speed. When he attempted to turn around in the highway the last time, the motorcycle slid on the wet pavement, fell over with Broussard still astride it, and he was run over by the Yellow Freight Lines truck. Another witness testified that Broussard was traveling down the driveway at a high speed, that he attempted to turn away from Airline Highway when he reached the edge of the shoulder, and that he hit one of the holes in the two-foot gravel area adjacent to the shoulder and bounced out onto the highway where he was run over.
Prentiss Mars, the driver of the Yellow Freight System truck, testified that he did not notice whether Broussard struck one of the holes because Broussard was falling down on the highway when he first observed him.
Plaintiffs seek to recover under the theory of strict liability, or in the alternative, negligence.
Recent jurisprudence has clarified the applicability of strict liability under LSA-C.C. art. 2317 and negligence under LSA-C.C. art. 2315 to situations such as presented herein. In essence, the only difference between a strict liability case and a negligence case is that in the former, the claimant is relieved of the burden of establishing that the defendant "knew or should have known" of the risk. In this regard, this court noted in Buchanan v. Tangipahoa Parish Police Jury, 426 So. 2d 720, 724 (La.App. 1st Cir.1983):
In Kent, supra [v. Gulf States Utilities Co., 418 So. 2d 493 (La.1982)], the court observed that the only difference between the strict liability and negligence theories of recovery was the element of the defendant's scienter. Under the negligence rule, it must be shown that defendant either knew or should have known of the risk, whereas under strict liability the claimant is relieved only of proving that the defendant knew or should have known of the risk. In either case, the claimant must still prove an unreasonable risk of harm that resulted in damage. While the basis for determining the existence of the duty is different between strict liability and negligence, the duty which arises is the same. Kent v. Gulf States Utilities Company, supra, 497-498. (Emphasis added)
This duty applies to both negligence and strict liability cases. Efferson v. State of Louisiana, Etc., 463 So. 2d 1342 (La.App. 1st Cir.1984).
While it is unnecessary to separately discuss the applicability of LSA-C.C. arts. 2315 and 2317, because of appellants' specific assignments of error and for the sake of clarity, separate discussions follow.
STRICT LIABILITY
The applicability of LSA-C.C. art. 2317 to the Department for the roads it maintains has been clearly established. Duffy v. State, Dept. of Transp., Etc., 415 So. 2d 375 (La.App. 1st Cir.1982), writ denied, 420 So. 2d 448 (La.1982); Foggan v. *990 La. Dept. of Transp. and Dev., 402 So. 2d 154 (La.App. 1st Cir.1981); Scott v. State, Dept. of Transp., Etc., 392 So. 2d 482 (La. App. 1st Cir.1980), writ denied, 396 So. 2d 921 (La.1981). To be successful under this article, a plaintiff must prove that: (1) the thing causing the injury was in the custody of the defendant; (2) the thing causing the harm was defective, i.e., created an unreasonable risk of harm to others; and (3) the defective thing caused the plaintiff's injury. Duffy, supra.
Although the testimony was conflicting as to whether Broussard actually struck one of the holes, we will assume that he did for purposes of this discussion.
The Department stipulated that it had the responsibility to maintain the gravel portion of the shoulder, i.e. that the gravel shoulder was under its care, custody, and control. However, it is unnecessary to determine whether the holes in the gravel portion of the shoulder created an unreasonable risk of harm to others so as to be a defective thing within the contemplation of LSA-C.C. art. 2317, since the other essential element of recovery under LSA-C.C. art. 2317 is not present. See Sarphie v. Comeaux, 428 So. 2d 1141 (La.App. 1st Cir. 1983), writ denied, 433 So. 2d 161 (La.1983).
The trial judge determined that the sole cause of the accident was the action of the decedent. The holes in question had existed for six months to a year prior to the accident, and during this period, Broussard had visited the body shop approximately twice a week. On the afternoon of the accident, Broussard drove over or around these holes several times. Furthermore, Broussard was operating the motorcycle at an excessive rate of speed in a light rain at the time of the collision. Broussard did not even slow his motorcycle upon approaching the busy roadway.[5] Additionally, Broussard was intoxicated at the time he lost control of his vehicle. Clearly, the accident was not caused by the condition of the gravel shoulder, but was due to the fault of Broussard.
NEGLIGENCE
Plaintiffs argue, in the alternative, that the Department is liable under LSA-C.C. art. 2315, contending that it was negligent in maintaining the shoulder. Under the analysis of Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962) and its progeny, four inquiries must be answered in the affirmative before a plaintiff can recover under LSA-C.C. art. 2315:
1. Did the defendant owe a duty to the plaintiff?
2. Was this duty breached?
3. Was the breach of duty a substantial factor in bringing about harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred?
4. Do the risk and harm encountered by the plaintiff fall within the scope of the protection afforded by the duty breached?
See also Shelton v. Aetna Casualty and Surety Company, 334 So. 2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So. 2d 620 (1972); Naylor v. La. Dept. of Public Highways, 423 So. 2d 674 (La.App. 1st Cir.1982), writs denied, 429 So. 2d 127, 134 (La.1983), and LeBlanc v. State, Through Department of Corrections, 393 So. 2d 125 (La.App. 1st Cir.1980), writ denied, 394 So. 2d 1235 (La.1980).
The Department has the duty to maintain the state's highways in a reasonably safe condition for motorists exercising ordinary care and reasonable prudence. Sinitiere v. Lavergne, 391 So. 2d 821 (La. 1980); Everett v. Louisiana Department *991 of Transportation and Development, 424 So. 2d 336 (La.App. 1st Cir.1982). Included within this duty is the responsibility to maintain the shoulders of the highways in a reasonably safe condition. Rue v. State, Department of Highways, 372 So. 2d 1197 (La.1979). However, the Department is not responsible for every accident which occurs on the state highways, nor is it an insurer against all injuries which may result from defects in the highways. United States Fidelity and Guaranty Co. v. State, Department of Highways, 339 So. 2d 780 (La. 1976).
Even though it was stipulated that one of the Department's manuals provided that the Department was responsible for maintaining this area, the failure to comply with the requirements of the Department's manual does not constitute negligence per se. Harkins v. State, Department of Highways, 247 So. 2d 644 (La.App. 3rd Cir. 1971), writ denied, 259 La. 741, 252 So. 2d 449 (1971).
Certainly, there is a higher duty owed to a person traveling the main portion of a highway as concerns the highway, the shoulder, and area adjacent to the shoulder than that owed to a person coming out of a private driveway onto the highway. See Ishee v. State, Through Dept. of Transp., 413 So. 2d 1362 (La.App. 1st Cir.1982). While the Department owes a duty to maintain the highway shoulder in a reasonably safe condition to a motorist who may, for any number of reasons, find himself traveling on, or partially on, the shoulder, the duty owed to a person approaching the highway from a driveway is less stringent.
We find it unnecessary to determine whether the Department breached its duty to Broussard because the breach of a duty results in recovery only if the breach is the cause-in-fact of the injury. See Duffy v. State, Dept. of Transp., Etc., supra. In the instant case, decedent was traveling at an excessive rate of speed on a rainy day. He operated his vehicle in close proximity to a major thoroughfare in a reckless fashion while intoxicated.
In the case sub judice, the evidence supports the trial judge's finding that Broussard failed to exercise the proper control over the motorcycle as he approached Airline Highway and that his actions were the sole cause of the accident. Therefore, the failure of the Department to maintain the gravel shoulder was not the cause-in-fact of the accident, and plaintiffs are not entitled to recover.
COMPARATIVE NEGLIGENCE
The accident occurred on October 27, 1980, after the effective date of Act No. 431 of 1979, amending LSA-C.C. art. 2323 and adopting the doctrine of comparative negligence in Louisiana. Although the plaintiffs did not specifically address the issue of comparative negligence in their assignments of error, we have determined that decedent's negligence and/or fault was the sole cause of the accident; therefore, comparative negligence is not applicable.
Therefore, for the above assigned reasons, the judgment of the trial court is affirmed. Appellants are cast for costs of this appeal.
AFFIRMED.
NOTES
[1] Plaintiffs later amended their petition to correct the name of Yellow Freight Lines, Inc. to Yellow Freight System, Inc. In their supplemental and amending petition, plaintiffs also identified XYZ Insurance Company as Protective Insurance Company.
[2] The City of Baton Rouge was dismissed on a motion for summary judgment, and plaintiffs voluntarily dismissed with prejudice their claim against Yellow Freight Lines, Inc., Prentiss Mars, and Protective Insurance Company.
[3] The trial court, in oral reasons for judgment, did not discuss strict liability.
[4] Baton Rouge City Police Officer Giglio, who investigated the accident, testified that the depth of the holes adjacent to the paved shoulder was "Five inches, ten inches, in that area. There wasa jagged hole, very jagged." He further estimated the diameter of the holes to be approximately three feet.
Prentiss Mars, driver of Yellow Freight System's truck, estimated the depth of the holes to be "about two inches, three inches, maybe right in the center about three inches."
[5] As regards driving onto a highway from a driveway, we note LSA-R.S. 32:124 which provides:
The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442498/ | 5 A.3d 21 (2010)
ABSHAW
v.
TENACITY GRP.
No. 09-CV-818.
District of Columbia Court of Appeals.
September 27, 2010.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2861745/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00588-CR
Floyd Calvin Roberts, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 98-403-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING
A jury convicted Floyd Calvin Roberts of one count of delivering marihuana to a
minor. See Tex. Health & Safety Code Ann. § 481.122 (West Supp. 1999). After hearing
testimony on punishment and appellant's plea of true to a prior felony conviction, the jury
assessed sentence at life in prison. Roberts contends that the evidence was factually and legally
insufficient to support the conviction and that the court erred by overruling his objection to the
State's jury argument. We will affirm the judgment.
BACKGROUND
Roberts befriended eighth-graders Jessica Easley, Kristi Jordan, and Stephanie
Ellison while working as a school bus driver. With at least one of their mother's permission, he
took the girls in his truck to the mall, their friends' homes, and other places. Easley testified that
Roberts also gave her and her friends marihuana and alcohol. She testified that he bought the
marihuana at meetings set up on the phone and bought drug paraphernalia at a store in Austin.
He usually kept the marihuana in his room, but sometimes put it in his truck. In his truck, he put
it in a hole near the stereo. She said she and her friends dropped marihuana seeds in the truck
when cleaning the marihuana. (Easley also testified that Roberts sexually assaulted her; because
the jury acquitted him of the various sexual assault charges, we will not detail that evidence.)
Easley's mother testified that she several times suspected that her daughter was high after
spending time with Roberts; she admitted that she did not know for sure that Roberts had provided
the marihuana to her daughter.
Jordan and Ellison also testified that Roberts gave them marihuana while they were
with Easley. Both had smoked marihuana before they knew Roberts; Jordan said marihuana has
a distinct odor and particular effects on the user. Jordan said Roberts gave them marihuana many
times; they said he kept it in his glove compartment, his dresser drawer, and a boot. The girls
denied they got this marihuana from Jordan's boyfriend. The girls agreed that Roberts never
smoked marihuana with them because he feared a random drug test showing marihuana use would
cost him his bus-driving job. Ellison, after initially denying she took marihuana with her on
spring break to Kansas, admitted her aunt caught her with marihuana while there; she testified,
however, that her mother did not know about her marihuana use before the State subpoenaed
Ellison for this trial.
When Easley told her school counselor shortly after spring break (which ended
Sunday, March 22, 1998) about her activities with Roberts, the counselor informed the city police.
On April 9, 1998 in a search of Roberts's home, the police found .07 grams of marihuana loose
in Roberts's dresser drawer. They also found a couple of marihuana seeds and a burnt piece of
paper in the floorboard of his truck. The crime lab technician stated that tests showed the
substance in the drawer was marihuana; though he did not test the seeds, he opined that they were
marihuana seeds.
The jury acquitted Roberts of indecency with a child, sexual assault, and one count
of delivery of marihuana to a minor. The jury convicted him of the remaining count of delivery
of marihuana to a minor. After hearing evidence regarding Roberts's past, the jury assessed
sentence at life in prison.
DISCUSSION
By two points of error, Roberts contends that the evidence is legally and factually
insufficient to support his conviction. When reviewing the legal sufficiency of the evidence under
point of error one, we will view the evidence in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). When
reviewing the factual sufficiency of the evidence under point of error two, we will view the
evidence without a presumption; we can set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922
S.W.2d 126, 135 (Tex. Crim. App. 1996). The jury is the sole judge of the credibility of the
witnesses and of the weight to give their testimony. Miller v. State, 909 S.W.2d 586, 593 (Tex.
App.--Austin 1995, no pet.). The State may prove the identity of a controlled substance based on
an admission by the accused. See In re L.G., 728 S.W.2d 939, 942 (Tex. App.--Austin 1987, writ
ref'd n.r.e.); see also Bright v. State, 556 S.W.2d 317, 322 (Tex. Crim. App. 1977) (witness's
testimony that appellant told him substance was heroin is admissible and probative of substance's
identity).
Roberts focuses his sufficiency complaints on whether the State proved that he
delivered marihuana to Easley. Though the State introduced marihuana found in Roberts's house
and car, it did not offer any marihuana given to Easley. (The testimony is that the girls consumed
the marihuana he provided.) Roberts contends the girls' testimony is insufficient to show he gave
Easley marihuana. Roberts contends that no evidence shows he ever represented he was giving
Easley marihuana. He also argues that the girls were not qualified to identify marihuana and did
not ever describe the substance he allegedly provided. He contends that the marihuana recovered
in April is not probative of whether he gave Easley marihuana on March 1; he contends that many
intervening events could account for the presence of marihuana in his house and car.
Contrary to Roberts's assertion, we find passages of Jordan's testimony reveal
Roberts saying that the substance he gave Easley was marihuana:
Q. Did Calvin [Roberts] ever discourage or try to get you or Jessica, the times
that y'all were together, not to smoke; or did he ever encourage y'all to
smoke?
A. He really encouraged it.
Q. Can you explain that?
A. Well, if we were just sitting there watching TV, he would ask us if we wanted
to smoke some marijuana. So, you know, he would say go get it here or
sometimes he would go get it.
* * *
Q. Let's talk a little bit about how you know that what he gave you was marijuana.
Does marijuana have a distinct odor to you?
A. Yes, ma'am, very distinct.
Q. And could you look at it and know it to be marijuana?
A. Yes, ma'am, it's--it's, you know, pretty obvious.
Q. Did Calvin Roberts indicate to you it was marijuana?
A. Yes, ma'am.
On redirect examination, the following exchange occurred:
Q. [Roberts] just--I would ask him--or he would just tell us that he bought it, you
know, "I bought some marijuana yesterday" or something. He never told me
from who, and I was never with him.
A. The occasions that you described about smoking marijuana with Calvin, there
have been multiple occasions. Is that correct?
* * *
A. Yes ma'am.
Q. And you indicated earlier that on some of those occasions Calvin would direct
y'all to go get it from his--places in his room. Is that correct?
A. Yes ma'am.
These passages are similar to the admissions by defendants held to be sufficient to prove the
identity of a controlled substance. See Bright, 556 S.W.2d at 322; L.G., 728 S.W.2d at 942.
Other testimony from the girls supports the conclusion that Roberts provided
marihuana to Easley. All three girls claimed familiarity with marihuana and asserted repeated
instances in which Roberts gave Easley marihuana. Easley and Jordan said they had smoked
marihuana before meeting Roberts. Ellison and Jordan testified that they recognize marihuana by
sight and smell. The girls talked about characteristics of marihuana like stems and seeds that are
removed before smoking. All three girls testified that Roberts provided the marihuana to them
many times; Ellison and Easley said they accompanied him when he bought it from someone he
arranged to meet at a service station. All three girls testified they smoked Roberts's marihuana
together. The girls described smoking marihuana in a pipe; Jordan and Easley described the
screens in the pipes used to prevent accidental ingestion of the marihuana, and Jordan recognized
that the screen introduced into evidence had not been used. Easley said smoking it made her high.
Jordan said smoking it made her tired, hungry, and red-eyed.
Roberts argues that the girls' testimony is no evidence of the nature of the substance
because they were not qualified to identify it. This is not a dispute over admissibility because
Roberts did not object to the admission of the evidence. Rather, Roberts bases this argument on
the court of criminal appeals' disregard of testimony by nonchemists purporting to identify a
substance as heroin; the court concluded that, because many substances resemble heroin,
testimony from narcotics officers and laymen based on the appearance of a substance admitted
without objection nevertheless was not probative evidence that the substance actually was heroin.
See Bright, 556 S.W.2d at 321-22; see also Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim.
App.1977) (test showing substance was opiate derivative did not prove substance was heroin
because other opiate derivatives resemble heroin). (1) Roberts argues for a similar ruling here
because other green, leafy, seedy substances resemble marihuana. See Holliman v. State, 692
S.W.2d 120, 122 (Tex. App.--Waco 1985, pet. ref'd).
We conclude that, even without Roberts's admissions, the girls' testimony was
some evidence that the substance Roberts gave Easley was marihuana. Lay witnesses can give
opinion testimony that is rationally based on their perception and helpful to a clear understanding
of their testimony or determination of a fact in issue. Tex. R. Evid. 701. The nature of the
substance provided is a fact in issue, and there is no objection in the record that the State did not
lay the proper predicate for the girls to identify the substance. Courts tend to accord some weight
to identifications of marihuana by nonchemists. See Fierro v. State, 706 S.W.2d 310, 317-18
(Tex. Crim. App. 1986) (police officer can identify marihuana based on experience); Medina v.
State, 193 S.W.2d 196, 198 (Tex. Crim. App. 1945) ("When the witness testified that he knew
marihuana, that he had smoked it and dealt in it, he would be qualified to so testify."). The fact
that other substances resemble marihuana does not negate the girls' testimony because they did
not just look at it, they smoked it and testified regarding its effects. There is also testimony that
Roberts told them he was giving them marihuana. Their testimony is some evidence that the
substance was marihuana. Their lack of training and chemical analysis goes to the weight the jury
accords their testimony. See id.
Roberts correctly argues that the seizure of marihuana from Roberts weeks after
he allegedly gave marihuana to Easley does not itself provide sufficient evidence to support the
conviction. It does, however, lend support to the girls' testimony. The girls testified regarding
places Roberts habitually kept the marihuana he gave Easley. Weeks later, the police found
marihuana or residue in those same places, thus making more believable their testimony that the
substance he gave them was marihuana.
Roberts contends that gaps and credibility issues undermine the girls' testimony and
render it insufficient to support the verdict. He argues that the jury's acquittal of him on the
sexual offenses clearly shows rejection of Easley's testimony, and the acquittal on the March 15
delivery evinces rejection of all the girls' testimony; because there is no distinct testimony
regarding a March 1 marihuana delivery, he argues, the evidence cannot support conviction on
that count. He theorizes that the girls used him to enable their use of marihuana and other
activities their parents prohibited, but turned against him when they tired of him; he points to
Ellison's blaming him as the source when she was caught with marihuana on spring break in
Kansas, and Easley's description of an argument with Roberts during which she criticized him for
not taking her where she wanted and he criticized her for cursing too much. He also points to the
fact that Easley concealed her drug use and lied to her mother about her drug use and her
whereabouts during spring break.
We nonetheless conclude that the evidence is both legally and factually sufficient
to support the judgment. The indictment charges that Roberts gave Easley, a minor, marihuana
on or about March 1, 1998. There is no dispute that Easley was a minor. All three girls testified
that Roberts gave Easley marihuana repeatedly between January 1998 and mid-March 1998;
because all of these dates precede the indictment, the testimony supports the judgment under the
definition of "on or about" given. See Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App.
1995). The jury was free to pick which aspects of the girls' testimony to believe, even to convict
on the charge of delivery on March 1 and to acquit on the charge of delivery on March 15. See
Miller, 909 S.W.2d at 593. The jury may have found the evidence believable when all three girls
testified about pre-spring break activities (March 1), but may have lumped the March 15 delivery
charge in with the alleged spring-break sexual offenses, testimony about which they found
unconvincing at guilt-innocence. The girls' limited descriptions of the substance, the way they
consumed it, and its effects on them all support the finding that the substance provided was
marihuana, as does the police's discovery of marihuana four weeks later in the places the girls'
testimony indicated police would find it. No evidence indicated that the substance was not
marihuana. Though the deterioration of the girls' relationship with Roberts theoretically might
have caused them to concoct their testimony, it is also possible that it merely freed them from not
wanting to expose him; there is no evidence that they lied about his delivery of marihuana to
Easley.
The lack of direct evidence of Roberts providing Easley marihuana does not require
that we reverse the conviction. Circumstantial evidence need not exclude all reasonable
alternative hypotheses. Sonnier v. State, 913 S.W.2d 511, 516 (Tex. Crim. App. 1995). Neither
our ability to imagine other sources of marihuana nor the fact that no marihuana delivered to
Easley was introduced requires that we overturn the conviction. Viewed in the light most
favorable to the verdict, the evidence is legally sufficient to support the conviction. Even viewed
without that presumption, the evidence is factually sufficient to support the conviction because the
verdict was not against the overwhelming weight of the evidence. We overrule points one and
two.
By point of error three, Roberts contends that the district court erred by overruling
his objection made during this portion of the State's final argument:
Who got caught? What evidence did you hear that Jessica Easley got caught with
anything? By a parent, by a counselor, by a school teacher? Was that question
asked of Mrs. Pulatie? "Well, did you catch her, is that how all of this came to
be?"
No, Jessica didn't get caught. What happened? After spring break she went to her
friend, who she trusted, and disclosed that she and Calvin had been smoking
marijuana, had been drinking, and the sexual acts that occurred to her over spring
break.
[Defense counsel]: Objection, Your Honor, that is not in evidence.
THE COURT: Overruled.
[Prosecutor]: That is how all of this came to pass. And then Ms. Gubitz then
reported it to the official. This is how all of this began. Nobody got caught doing
anything except the defendant.
If Jessica wanted to continue this lie of getting alcohol and drugs and enjoyed these
sexual acts with the Defendant, that she wanted it to continue because she wanted
the drugs and alcohol that badly, it could have happened. She didn't have to report
it. But what did she tell you? "I just wanted it to stop."
Roberts contends the portion of the State's argument to which he objected falls into none of the
acceptable categories of jury argument. Those categories include (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to defense counsel's argument; and (4) a
plea for law enforcement. See Coble v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993).
The State contends that the argument is an answer to defense counsel's argument
and is either summative of or a reasonable deduction from the evidence. In her argument,
Roberts's attorney told a story about her cousin who lied when he denied owning the marihuana
pipe his mother found in his jacket. She compared her cousin's behavior to Easley's conduct,
arguing that when Easley was caught lying about her whereabouts at spring break, she concocted
a story that Roberts gave her marihuana and sexually assaulted her. The State's argument was
clearly in response to this argument, but must be supported by the evidence in order to be proper.
We conclude that the court did not err by declining to exclude the State's argument.
Easley, her mother, and Kathleen Gubitz, Easley's school counselor, testified that Easley and
Gubitz had a close relationship; Easley described Gubitz as a friend in whom she could confide.
Easley and Gubitz both testified that they talked just after spring break. Easley testified that after
spring break she told Gubitz about Roberts's sexual advances on her; Easley testified that Gubitz
was the first person she told about the sexual advances. When the prosecutor asked, "Jessica,
what made you want to tell Ms. Gubitz about what was going on?" she responded, "I was tired
of it. I didn't want it to happen anymore." (2) Gubitz testified that, after her post-spring break
conversation with Easley, she contacted various authorities including Sergeant Bob Taggart of the
Leander Police Department. Easley's mother said she learned of Easley's marihuana use, not
from Easley herself, but from Taggart. There is no evidence that Taggart learned of Easley's
marihuana use or Roberts's provision of marihuana any other way than by this chain of events.
This evidence either directly or inferentially supports the State's assertion that "[a]fter spring
break she went to her friend, who she trusted, and disclosed that she and Calvin had been smoking
marijuana, had been drinking, and the sexual acts that occurred to her over spring break." The
argument also responded to Roberts's assertion that the girls were lying because they got caught.
There is no evidence that Easley's confessions to her counselor were triggered by being caught
with marihuana or being out of place at spring break. The court did not err by overruling his
objection to this argument by the State. We overrule point three.
CONCLUSION
Legally and factually sufficient evidence supports Roberts's conviction for
delivering marihuana to Easley on or about March 1, 1998. The court did not err in allowing the
challenged portion of the State's argument. Having overruled all three points of error, we affirm
the conviction.
J. Woodfin Jones, Justice
Before Justices Jones, Kidd and Patterson
Affirmed
Filed: December 23, 1999
Publish
1. These conclusions resemble the supreme court's conclusion that expert testimony based on
flawed science "is unreliable and, legally, no evidence." Merrell Dow Pharmaceuticals, Inc. v.
Havner, 953 S.W.2d 706, 714 (Tex. 1997).
2. Though her testimony is not entirely clear of what "it" Easley had tired, "it" could include
marihuana provision. The fact that Easley's mother learned from the police who learned from the
counselor about Easley's drug use enhances the possibility that "it" did. Regardless, there was
no objection to any vagueness in this testimony nor was vagueness the basis of the objection to
the argument.
="BR1">
Roberts contends the portion of the State's argument to which he objected falls into none of the
acceptable categories of jury argument. Those categories include (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to defense counsel's argument; and (4) a
plea for law enforcement. See Coble v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993).
The State contends that the argument is an answer to defense counsel's argument
and is either summative of or a reasonable deduction from the evidence. In her argument,
Roberts's attorney told a story about her cousin who lied when he denied owning the marihuana
pipe his mother found in his jacket. She compared her cousin's behavior to Easley's conduct,
arguing that when Easley was caught lying about her whereabouts at spring break, she concocted
a story that Roberts gave her marihuana and sexually assaulted her. The State's argument was
clearly in response to this argument, but must be supported by the evidence in order to be proper.
We conclude that the court did not err by declining to exclude the State's argument.
Easley, her mother, and Kathleen Gubitz, Easley's school counselor, testified that Easley and
Gubitz had a close relationship; Easley described Gubitz as a friend in whom she could confide.
Easley and Gubitz both testified that they talked just after spring break. Easley testified that after
spring break she told Gubitz about Roberts's sexual advances on her; Easley testified that Gubitz
was the first person she told about the sexual advances. When the prosecutor asked, "Jessica,
what made you want to tell Ms. Gubitz about what was going on?" she responded, "I was tired
of it. I didn't want it to happen anymore." (2) Gubitz testified that, after her post-spring break
conversation with Easley, she contacted various authorities including Sergeant Bob Taggart of the
Leander Police Department. Easley's mother said she learned of Easley's marihuana use, not
from Easley herself, but from Taggart. There is no evidence that Taggart learned of Easley's
marihuana use or Roberts's provision of marihuana any other way than by this chain of events.
This evidence either directly or inferentially supports the State's assertion that "[a]fter spring
break she went to her friend, who she trusted, and disclosed that she and Calvin had been smoking
marijuana, had been drinking, and the sexual acts that occurred to her over spring break." The
argument also responded to Roberts's assertion that the girls were lying because they got caught.
There is no evidence that Easley's confessions to her counselor were triggered by being caught
with marihuana or being out of place at spring break. The court did not err by overruling his
objection to this argument by the State. We overrule point three.
CONCLUSION
Legally and factually sufficient evidence supports Roberts's conviction for
delivering marihuana to Easley on or about March 1, 1998. The court did not err in allowing the
challenged portion of the State's argument. Having overruled all three points of error, we affirm
the conviction. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2861678/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00560-CR
Richard Galvez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 0962277, HONORABLE BOB PERKINS, JUDGE PRESIDING
After pleading not guilty, Richard Galvez was convicted of two counts of aggravated
robbery; the jury also found that he used or exhibited a deadly weapon. See Tex. Penal Code Ann. §
29.02, .03 (West 1994). The trial court sentenced appellant to serve concurrent sentences of thirty-two
years' imprisonment in the Texas Department of Criminal Justice--Institutional Division. On appeal,
Galvez complains the trial court erred in admitting evidence that he was a member of the Fourth Street
Brothers, a gang that operated in the neighborhood where the robbery occurred. Finding error, we will
reverse the trial court's judgment.
BACKGROUND
On a Sunday night in April 1996, Orlando Ugarte and Eduardo Perez began an evening
of drinking beer and cruising around in Ugarte's car. After stopping to eat dinner and drink more beer,
they got back in the car about 10:00 p.m. and continued to drive around the neighborhood. Around 11:00
p.m. they pulled into an all-night filling station to get gas. As Perez was making a call from a nearby pay
phone, Ugarte was attacked and robbed by a group of young Hispanic males. When he realized his cousin
was under attack, Perez attempted to come to Ugarte's defense, scaring away some of the attackers.
However, a group member wielding a gun called for them to return and within minutes Perez was beaten
too. Almost as soon as it started, the beating rendered Perez unable to observe his attackers. After
administering a severe beating to both victims, the five to eight attackers took Ugarte's wallet and watch,
along with Perez's bracelet, and drove off in Ugarte's car, which was later dumped in Town Lake.
Ugarte was attacked so suddenly he could not identify any of his assailants. There were
no witnesses who stepped forward to testify and upon its recovery from the lake the car offered no physical
clues connecting appellant to the offense. Eight days after the attack, Perez identified Galvez in a photo
array as the attacker who carried the gun, the self-styled leader of the others. At trial Perez was less
certain of appellant's identity as one of the assailants. Although he admitted it was unlikely he would be
able to recognize any of his attackers, he did agree that Galvez might have been the gun-wielding leader.
Essentially, Perez was able to testify that the attackers were a group of Hispanic men, all dressed in similar
clothing--short pants and short- sleeved shirts-- and all sporting the same short haircut. Perez also stated
he believed the group that attacked him was a gang.
Over defense objections, the State presented evidence that Galvez was a member of the
Fourth Street Brothers, a gang that operated in the neighborhood where the filling station was located. The
State argued that such evidence made it more likely that appellant assaulted and robbed the two victims.
In a single point of error, appellant complains that the admission of this evidence constituted reversible
error.
ANALYSIS
Galvez argues that evidence of his membership in the Fourth Street Brothers gang should
have been excluded under the "propensity rule" set forth in Texas Rules of Criminal Evidence 404. Section
(a) generally excludes evidence of a person's character or character trait offered to prove character
conformity, with limited exceptions. Tex. R. Crim. Evid. 404(a). Section (b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .
Tex. R. Crim. Evid. 404(b). Such extraneous evidence that serves any one of the listed purposes is only
"relevant" beyond its tendency to prove the person acted in conformity with the evidence presented.
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh'g). Unless such
evidence is relevant apart from supporting an inference of "character conformity," it is absolutely
inadmissible under Rule 404(b). Id. Evidence of other crimes, wrongs or acts must be excluded unless
it qualifies as an exception "admissible for other purposes." Id.; Tex. R. Crim. Evid. 404(b).
The State attempts to argue the gang evidence was admitted for the purpose of
"identifying" appellant and was thereby admissible as an exception under Rule 404(b). We disagree.
Evidence of an extraneous act admitted for the purpose of proving identity must demonstrate an extremely
high degree of similarity to the charged offense. Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App.
1993); see also Lane v. State, 933 S.W.2d 504, 518-19 (Tex. Crim. App. 1996) ("To be admissible to
show identity, an extraneous offense must be so similar to the offense charged that the offenses are marked
as the accused's handiwork"). Evidence of Galvez's gang membership does not constitute an act or wrong
highly similar to the crime charged. The State responds that "gang" evidence is not subject to the
restrictions of signature or modus operandi crimes because the proffered evidence was not an extraneous
offense or bad act but rather was a status or trait tending to prove Galvez's identity. But Rule 404 bars
use of such "status" evidence to prove that the accused acted in conformity with the character trait
presented. See Tex. R. Crim. Evid. 404(a), (b); Montgomery, 810 S.W.2d at 387. (1)
Evidence of bad character may distract the jury from considering whether the accused is
guilty of the crime charged and tempt it to convict an individual for general bad behavior. The court of
criminal appeals has recognized this rationale for Rule 404. "It is a rule which ensures that a person is tried
for the offense he has allegedly committed, and not for the type of person that he is." Mayes v. State, 816
S.W.2d 79, 86 (Tex. Crim. App. 1991). The court also emphasized the extremely prejudicial nature of
such evidence: "Evidence of a defendant's bad character traits possesses such a devastating impact on a
jury's rational disposition towards other evidence, and is such poor evidence of guilt, that an independent
mandatory rule was created expressly for its exclusion." Id. In Mayes, an inmate was charged with
aggravated kidnaping of a guard; over objection the trial court allowed the State to tell the jury that the
inmate was kept in "administrative segregation," an area designated for the troublemakers, "the bad guys,
the ones that misbehave." Id. at 81. The court of criminal appeals found this kind of "background"
contextual evidence inadmissible, distinguishing it from "same transaction" contextual evidence which may
be admissible as an exception under Rule 404(b). Id. at 86-89. The court noted the logical implication
the State hoped the jury would draw from this background evidence: That this inmate posed a threat to
guards and other inmates, that he was volatile or violent by nature. Because evidence of his violent nature
might have encouraged the jury to conclude that the inmate violently attacked the prison guard, it was highly
prejudicial and should have been excluded under Rule 404(a), (b). See id. at 88. (2)
This Court has held inadmissible background evidence of the defendant's homosexuality
when a male defendant was accused of molesting a male child. Blakeney v. State, 911 S.W.2d 508, 515
(Tex. App--Austin 1995, no pet.) (citing Tex. R. Crim. Evid. 404). In Roberts v. State, any evidence
that the defendant was a known drug dealer would have been inadmissible if not for defendant's failure to
preserve error. 866 S.W.2d 773, 775 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). Additionally
in Nelms v. State, evidence that the defendant wore a beeper, a known practice of drug dealers, was
inadmissible under Rule 404. 834 S.W.2d 110, 114 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd).
"This evidence invited the jury to convict appellant of possession [of drugs] because he was a drug dealer
in general." Id. We find the rationale for excluding character evidence in those cases dictates exclusion
of evidence of appellant's gang membership in the instant case.
Galvez states the evidence alleging that he was a member of the Fourth Street Brothers
gang showed him to possess the same kind of bad character trait as the evidence that Mayes was a violent
and volatile inmate who had to be segregated from the rest of the prison population. Indeed, the State
offered the testimony to show that because Perez believed he was attacked by youths belonging to a gang,
the evidence that Galvez was a member of a gang from that neighborhood made it more likely that he
committed the offense. The State argues in its brief: "His membership in a particular gang augmented the
probative force that the physical description and tentative identification provided. It is simply a matter of
probabilities." However, gang membership is highly inflammatory character evidence likely to cause an
individual to be convicted for being a bad person apart from sufficient indicia of guilt regarding this
particular crime. "Appellant, as a member of [a gang], showed a propensity for violence and this character
trait made it more probable that he would commit murder. . . . [T]his would clearly constitute impermissible
use of character evidence under Tex. R. Crim. Evid. 404(a)." Perez v. State, 830 S.W.2d 684, 688 (Tex.
App.--Corpus Christi 1992, no pet.).
Although the State argues that the evidence was admissible to prove identity, there was no
evidence that the Fourth Street Brothers was the "gang" that attacked Perez and his cousin. Perez could
not testify to any identifying tattoos, particular colors, or gang idioms. In other cases, evidence of gang
membership and gang colors and practices has been admitted to show motive to harm a member of a rival
gang, see Stern v. State, 922 S.W.2d 282, 286-87 (Tex. App.--Fort Worth 1996, pet. ref'd), or bias
toward a member of the same gang, see McKnight v. State, 874 S.W.2d 745, 747 (Tex. App.--Fort
Worth 1994, no pet.). Neither exception applies to the circumstances of this case. We agree with
appellant that membership in a gang that has terrorized a neighborhood, a gang whose members are often
arrested for criminal behavior, is the kind of character evidence that might tempt a jury to convict the
accused even without sufficient proof of guilt in the offense charged. A trial court has broad discretion in
admitting or excluding evidence, and only when the court abuses its discretion should an appellate court
conclude that the ruling was erroneous. See Montgomery, 810 S.W.2d at 390-91. We hold that the trial
court abused its discretion in admitting this highly prejudicial evidence of gang membership over appellant's
objection.
We must now consider the State's alternative argument that if there was error, the
admission of evidence of Galvez's gang membership did not constitute reversible error. Tex. R. App. P.
44.2 (formerly Tex. R. App. P. 81(b)(2)). (3) After examining the record we note the paucity of evidence
connecting Galvez to this crime other than Perez's tentative identification of appellant; after some prodding
at trial Perez could only state that Galvez looked a little like the guy with the gun. Indeed, the fact that
Perez had been drinking heavily, combined with the surprise nature of the attack that diminished Perez's
ability to observe his assailants, understandably contributed to Perez's tentative identification of appellant.
Here, substantially the same evidence did not come in later without objection, as it did in Mayes. See 816
S.W.2d at 88-89. In light of this record, and the highly prejudicial nature of the character evidence at issue
here, we conclude the error affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). The
potential for evidence of bad character to impress the jury in some irrational but indelible way is great. See
Montgomery, 810 S.W.2d at 390. We sustain appellant's sole point of error.
We reverse the judgment of the trial court and remand the cause for a new trial.
____________________________________
Bea Ann Smith, Justice
Before Justices Powers, Aboussie, and B. A. Smith
Reversed and Remanded
Filed: January 23, 1998
Publish
1. Indeed, evidence of gang membership is admissible at the punishment phase of a trial because it is
relevant to the character of the convicted defendant. See Jones v. State, 944 S.W.2d 642, 652-53 (Tex.
Crim App.), cert. denied, 118 S. Ct. 100 (1997); Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim.
App. 1995); see also Tex. R. Crim. Evid. 404(c).
2. The court found that the error in Mayes was nevertheless harmless under Texas Rule of Appellate
Procedure 81(b)(2) because the same evidence was admitted without objection later in the trial. Mayes
v. State, 816 S.W.2d 79, 88-89 (Tex. Crim. App. 1991).
3. Although the former and current rules differ somewhat, the court of criminal appeals has applied the
current "harmless error" rule regardless of when the case was tried or notice of appeal was given. King
v. State, No. 72145, slip op. at 9 (Tex. Crim. App. September 24, 1997).
ip in a particular gang augmented the
probative force that the physical description and tentative identification provided. It is simply a matter of
probabilities." However, gang membership is highly inflammatory character evidence likely to cause an
individual to be convicted for being a bad person apart from sufficient indicia of guilt regarding this
particular crime. "Appellant, as a member of [a gang], showed a propensity for violence and this character
trait made it more probable that he would commit murder. . . . [T]his would clearly constitute impermissible
use of character evidence under Tex. R. Crim. Evid. 404(a)." Perez v. State, 830 S.W.2d 684, 688 (Tex.
App.--Corpus Christi 1992, no pet.).
Although the State argues that the evidence was admissible to prove identity, there was no
evidence that the Fourth Street Brothers was the "gang" that attacked Perez and his cousin. Perez could
not testify to any identifying tattoos, particular colors, or gang idioms. In other cases, evidence of gang
membership and gang colors and practices has been admitted to show motive to harm a member of a rival
gang, see Stern v. State, 922 S.W.2d 282, 286-87 (Tex. App.--Fort Worth 1996, pet. ref'd), or bias
toward a member of the same gang, see McKnight v. State, 874 S.W.2d 745, 747 (Tex. App.--Fort
Worth 1994, no pet.). Neither exception applies to the circumstances of this case. We agree with
appellant that membership in a gang that has terrorized a neighborhood, a gang whose members are often
arrested for criminal behavior, is the kind of character evidence that might tempt a jury to convict the
accused even without sufficient proof of guilt in the offense charged. A trial court has broad discretion in
admitting or excluding evidence, and only when the court abuses its discretion should an appellate court
conclude that the ruling was erroneous. See Montgomery, 810 S.W.2d at 390-91. We hold that the trial
court abused its discretion in admitting this highly prejudicial evidence of gang membership over appellant's
objection.
We must now consider the State's alternative argument that if there was error, the
admission of evidence of Galvez's gang membership did not constitute reversible error. Tex. R. App. P.
44.2 (formerly Tex. R. App. P. 81(b)(2)). (3) After examining the record we note the paucity of evidence
connecting Galvez to this crime other than Perez's tentative identification of appellant; after some prodding
at trial Perez could only state that Galvez looked a little like the guy with the gun. Indeed, the fact that
Perez had been drinking heavily, combined with the surprise nature of the attack that diminished Perez's
ability to observe his assailants, understandably contributed to Perez's tentative identification of appellant.
Here, substantially the same evidence did not come in later without objection, as it did in Mayes. See 816
S.W.2d at 88-89. In light of this record, and the highly prejudicial nature of the character evidence at issue
here, we conclude the error affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). The
potential for evidence of bad character to impress the jury in some irrational but indelible way is great. See
Montgomery, 810 S.W.2d at 390. We sustain appellant's sole point of error.
We reverse the judgment of the trial court and remand the cause for a new trial.
____________________________________
Bea Ann Smith, Justice
Before Justices Powers, Aboussie, and B. A. Smith
Reversed and Remanded
Filed: January 23, 1998
Publish
1. Indeed, evidence of gang membership is admissible at the punishment phase of a trial because | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2861686/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00169-CR
John Paul King, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0964311, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
A jury found appellant John Paul King guilty of attempted sexual assault and aggravated
kidnapping. See Tex. Penal Code Ann. §§ 20.04(a)(4), 22.01 (West 1994 & Supp. 1998). (1) The jury
assessed punishment at (1) five years of imprisonment and a $1,500 fine for the offense of aggravated
kidnapping and (2) ten years of imprisonment, probated, for the offense of attempted sexual assault. The
court rendered judgments of conviction in accordance with the verdict except the court failed to assess the
$1,500 fine in the judgment. (2) King appeals in three points of error. We will affirm the judgments of
conviction.
BACKGROUND
On October 31, 1995, the victim, a woman named Tammy, was celebrating Halloween
with friends on Sixth Street in Austin. She became extremely intoxicated, and an employee of the bar she
was in asked her to leave. She was unable to walk well so her friend, Vince, picked her up and carried
her outside. He left her sitting by a doorway in a semi-conscious state while he went to get his car.
While Vince was gone and while Tammy was slumped in the doorway, King approached
her. He picked her up and put her over his shoulder. Tammy thought King was Vince. King carried
Tammy down a side street to an alley. He put Tammy down on her back on a loading dock that was
partially covered by an awning. Unbeknownst to Tammy or King, several Austin police officers saw King
carrying Tammy down the street and entering the alley. The officers, including Officers Ford and Martinez,
drove around the corner and entered the alley from the opposite direction. They watched King as he knelt
beside Tammy. According to Officer Ford, King touched Tammy's thigh and attempted to kiss her. When
she sat up, King put his hand on her shoulder and pushed her back down. Tammy then yelled "who are
you" and told King to get away from her. At that point, Ford became suspicious.
Ford called King over to ascertain the relationship between King and Tammy. While Ford
was conversing with King, King had a bulge in his pants, which Ford assumed was an erection. King
claimed to know Tammy, but was unable to tell Ford her name. King indicated he was trying to get her
home. He also said "Vince" was supposed to pick them up. He did not, however, respond when Officer
Martinez asked him Vince's last name.
While Martinez talked to King, Ford asked Tammy what had happened. Tammy, who was
crying, told Ford she did not know King and that she "just woke up and he was touching her." Ford
noticed the crotch on Tammy's Halloween costume was ripped. He then decided to arrest King and
handcuffed him.
King was charged with, tried for, and convicted of attempted sexual assault and aggravated
kidnapping. He appeals in three points of error, alleging: (1) the trial court erred in admitting the statements
he made in the alley because they were obtained in violation of article 38.22 of the Texas Code of Criminal
Procedure; (2) the evidence is insufficient to prove the abduction element of aggravated kidnapping; and
(3) the prosecutor misstated the law pertaining to that element during closing argument.
DISCUSSION
In point of error one, King asserts the statements he made in the alley were inadmissible
because they were obtained in violation of Texas Code of Criminal Procedure article 38.22. See Tex.
Code Crim. Proc. Ann. art. 38.22, § 3 (West Supp. 1998). Section 3 of article 38.22 prohibits admission
of oral statements made by a defendant as a result of custodial interrogation unless certain conditions are
met. Id. Those conditions were not met in this case. We must decide whether the statements were made
as a result of custodial interrogation.
Whether a defendant is in custody is a determination based entirely upon objective
circumstances. Stevenson v. State, No. 1348-95, slip op. at 9 (Tex. Crim. App. Dec. 10, 1997) (citing
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)). The court of criminal appeals has set forth
four factors that are generally useful in making the determination. They are: (1) whether probable cause
to arrest existed; (2) whether the defendant is the focus of the investigation; (3) the subjective intent of the
police insofar as it is communicated to the defendant; and (4) the subjective belief of the defendant insofar
as it is communicated to the police. Id.
We conclude the trial court could reasonably have concluded King was not in custody
when he made the statements he claims are inadmissible. First, Officer Ford testified he initially did not
know whether King was doing anything criminal because he did not know the relationship between King
and Tammy. For that reason, Ford wanted to question both Tammy and King. Although the events Ford
witnessed before the questioning were suspicious, they alone did not give Ford probable cause to arrest
King. Second, although King was a focus of the investigation, he was not the only focus. Officer Ford
questioned Tammy as well, in order to determine whether any criminal activity had been afoot. Third,
Officer Ford testified that King was not free to leave during the questioning, but he also testified that King
was not required to answer his questions. Nothing in the record suggests Ford intended to arrest King
when he was questioning King, or that such an intent was communicated to King. Finally, nothing suggests
King thought he was in custody when he was answering Ford's questions or that King communicated such
a belief to Ford. We, therefore, hold the statements were not obtained in violation of article 38.22, and
we overrule point of error one.
In his second point of error, King argues the evidence is insufficient to establish the
"abduction" element of aggravated kidnapping. See Tex. Penal Code Ann. §§ 20.01(2), 20.04(a)(4)
(West 1994 & Supp. 1998). King does not clarify whether he challenges the legal or factual sufficiency
of the evidence supporting this element of the crime. In the interest of justice, we will evaluate the evidence
under both standards. When reviewing the legal sufficiency of the evidence, we view it in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the element
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d
155, 159 (Tex. Crim. App. 1981). When reviewing the factual sufficiency of the evidence, we view all the
evidence without that prism and set aside the verdict only if it is so against the weight of the evidence as to
be clearly unjust. Cain v. State, No. 1525-96, slip op. at 5-8 (Tex. Crim. App. Dec. 18, 1997) (citing
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).
To abduct is to restrain a person with intent to prevent their liberation by either secreting
or holding the person in a place they are not likely to be found or by using or threatening to use deadly
force. Tex. Penal Code Ann. § 20.01(2) (West 1994). The parties disagree over whether hiding a person
where they are unlikely to be found is an element of the required culpable mental state or the required
criminal act. The State argues the former and King argues the latter.
The most recent court of criminal appeals cases on this subject lead us to agree with the
State. In Brimage, the seminal case on this issue, Judge Clinton and two other judges opined that the State
must prove the following to establish a kidnapping:
(1) a restraint made (2) with a specific intent to prevent liberation by either of two
particular means. Thus, secretion and the use or threatened use of deadly force are merely
two alternative components of the specific intent element. It is therefore not necessary, as
appellant argues, that the State prove a restraint accomplished by either secretion or
deadly force. Instead, the State must prove that a restraint was completed and that the
actor evidenced a specific intent to prevent liberation by either secretion or deadly force.
Brimage v. State, 918 S.W.2d 466 (Tex. Crim. App. 1996) (opinion on original submission issued Sept.
21, 1994) (lead opinion by Clinton, J.). Judge Miller and two others disagreed on this issue. Id. at 484-492 (Miller, J., concurring and dissenting). The four remaining judges agreed with Judge Clinton's
resolution of the point of error concerning the abduction element of kidnapping, id. at 494 (Baird, J.,
dissenting), but disagreed with his opinion on another issue not relevant here. Although the four-judge
dissent does not expressly agree with Judge Clinton's reasoning on the kidnapping issue, it does not
disagree with it either. Furthermore, one of the four dissenting judges was Presiding Judge McCormick,
who later authored the majority opinion in Mason v. State. See 905 S.W.2d 570, 575 (Tex. Crim. App.
1995) (citing Brimage v. State, 918 S.W.2d 466 (Tex. Crim. App. 1996) (opinion on original submission
issued Sept. 21, 1994)). Mason cites Judge Clinton's discussion in Brimage of the abduction element of
kidnapping and confirms that Judge Clinton's interpretation of the abduction requirement is controlling law.
See Mason, 905 S.W.2d at 575. (3) Thus, we conclude the secretion requirement of abduction is part of the
mens rea of kidnapping, not the actus reus. Id.
King argues another recent court of criminal appeals opinion suggests the court has
abandoned its prior interpretation of the abduction element of kidnapping. See Schweinle v. State, 915
S.W.2d 17 (Tex. Crim. App. 1996). In Schweinle, the court's discussion appears to focus on the
defendant's act, rather than his intent. The issue in Schweinle, however, was whether the evidence entitled
the defendant to an instruction on the lesser included offense of false imprisonment. The issue of whether
"secretion" is an element of intent or a required act was not squarely before the court. Until the court of
criminal appeals expressly disavows its prior interpretation of the abduction element of kidnapping in
Mason and Brimage, we are bound to apply it.
Based on that interpretation of the law, we must determine whether the evidence is factually
and legally sufficient to prove that King intended to take Tammy to a place she was unlikely to be found,
not that he actually accomplished his purpose. The evidence does support that conclusion. King, a total
stranger to Tammy, physically picked her up and took her from a highly visible area to a less conspicuous
alley. The alley was not well lit. King did this around 2:00 or 3:00 o'clock in the morning, a time when the
alley was not well-traveled. Furthermore, he did this on Halloween, a night on which people were not as
apt to question his unusual behavior. From this the jury could infer his intent to hide Tammy in a place she
was unlikely to be found. We hold that the evidence is both legally and factually sufficient to satisfy the
abduction element of aggravated kidnapping. Accordingly, we overrule point of error two.
In his last point of error, King argues the trial court erred in overruling his objection to the
prosecutor's allegedly improper statement of the law. During closing argument, the prosecutor discussed
the "abduction" element of aggravated kidnapping. The prosecutor explained that the law required the
State to prove only that King intended to take Tammy to a place she was not likely to be found, and that
the law did not require the State to prove he actually took her to such a place. Based on our discussion
concerning point of error two, we conclude the prosecutor's characterization of the law was proper. We
overrule point of error three.
CONCLUSION
We have overruled King's three points of error. Accordingly, we affirm the judgments of
conviction for aggravated kidnapping and attempted sexual assault.
_____________________________________________
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Affirmed
Filed: January 23, 1998
Publish
1. The law applicable to this case is that in effect at the time the offense occurred. Subsequent
amendments to these statutes are not relevant to the issues in this case. We cite to the current code for
convenience.
2. The State does not complain that the court failed to assess the fine. Because the State waived any
error with regard to this issue, we will not modify the judgment to conform to the jury's assessment of
punishment.
3. Ironically, Judge Clinton dissented in Mason. See Mason, 905 S.W.2d at 578-81. He did not
disagree with the majority's formulation of the abduction element of kidnapping; he disagreed with their
analysis of the evidence. See id. at 579. He also noted that Brimage was pending on rehearing at that
time. See id. at 578. The court eventually issued additional opinions on rehearing in Brimage, but did not
disturb the original discussion of the abduction element of kidnapping.
. Although the four-judge
dissent does not expressly agree with Judge Clinton's reasoning on the kidnapping issue, it does not
disagree with it either. Furthermore, one of the four dissenting judges was Presiding Judge McCormick,
who later authored the majority opinion in Mason v. State. See 905 S.W.2d 570, 575 (Tex. Crim. App.
1995) (citing Brimage v. State, 918 S.W.2d 466 (Tex. Crim. App. 1996) (opinion on original submission
issued Sept. 21, 1994)). Mason cites Judge Clinton's discussion in Brimage of the abduction element of
kidnapping and confirms that Judge Clinton's interpretation of the abduction requirement is controlling law.
See Mason, 905 S.W.2d at 575. (3) Thus, we conclude the secretion requirement of abduction is part of the
mens rea of kidnapping, not the actus reus. Id.
King argues another recent court of criminal appeals opinion suggests the court has
abandoned its prior interpretation of the abduction element of kidnapping. See Schweinle v. State, 915
S.W.2d 17 (Tex. Crim. App. 1996). In Schweinle, the court's discussion appears to focus on the
defendant's act, rather than his intent. The issue in Schweinle, however, was whether the evidence entitled
the defendant to an instruction on the lesser included offense of false imprisonment. The issue of whether
"secretion" is an element of intent or a required act was not squarely before the court. Until the court of
criminal appeals expressly disavows its prior interpretation of the abduction element of kidnapping in
Mason and Brimage, we are bound to apply it.
Based on that interpretation of the law, we must determine whether the evidence is factually
and legally sufficient to prove that King intended to take Tammy to a place she was unlikely to be found,
not that he actually accomplished his purpose. The evidence does support that conclusion. King, a total
stranger to Tammy, physically picked her up and took her from a highly visible area to a less conspicuous
alley. The alley was not well lit. King did this around 2:00 or 3:00 o'clock in the morning, a time when the
alley was not well-traveled. Furthermore, he did this on Halloween, a night on which people were not as
apt to question his unusual behavior. From this the jury could infer his intent to hide Tammy in a place she
was unlikely to be found. We hold that the evidence is both legally and factually sufficient to satisfy the
abduction element of aggravated kidnapping. Accordingly, we overrule point of error two.
In his last point of error, King argues the trial court erred in overruling his objection to the
prosecutor's allegedly improper statement of the law. During closing argument, the prosecutor discussed
the "abduction" element of aggravated kidnapping. The prosecutor explained that the law required the
State to prove only that King intended to take Tammy to a place she was not likely to be found, and that
the law did not require the State to prove he actually took her to such a place. Based on our discussion
concerning point of error two, we conclude the prosecutor's characterization of the law was proper. We
overrule point of error three.
CONCLUSION
We have overruled King's three points of error. Accordingly, we affirm the judgments of
conviction for aggravated kidnapping and attempted sexual assault.
_____________________________________________
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Affirmed
Filed: January 23, 1998
Publish
1. The law applicable to this case is that in effect at the time the offense occurred. Subsequent
amendments to these statutes are not relevant to the issues in this case. We cite to the current code for
convenience.
2. The State does not complain that the court failed to assess the fine. Because the State waived any
error with regard to this issue, we will not modify the judgment to conform to the jury's assessment of
punishment.
3. Ironically, Judge Clinton dissented in Mason. See Mason, 905 S.W.2d at 578-81. He did not
disagree with the majority's formulation of the abduction element of kidnapping; | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1625737/ | 345 S.W.2d 509 (1961)
INDUSTRIAL ACCIDENT BOARD et al., Petitioners,
v.
Cefus GUIDRY, Respondent.
No. A-7941.
Supreme Court of Texas.
April 12, 1961.
Rehearing Denied May 10, 1961.
Will Wilson, Atty. Gen., John L. Estes, Tom I. McFarling and Byron Fullerton, Asst. Attys. Gen., for Industrial Accident Bd.
Marcus, Weller & Evans, Beaumont, for Cefus Guidry.
SMITH, Justice.
This appeal involves two basic questions, and these questions are presented in two applications. The application of the Industrial Accident Board for writ of error presents several points complaining of the judgment of the Court of Civil Appeals. The writ was granted on the points questioning the jurisdiction of the trial court, although all the questions are here for review. Guidry's application was granted to review the alleged error of the Court of Civil Appeals in holding that the petitioners were entitled to have submitted to the jury the requested issue as to whether or not Cefus Guidry suffered partial incapacity as a result of his injury, if any. However, the disposition we make of the State's application for writ of error renders it unnecessary for us to decide the question presented by Guidry.
The petitioners shall hereinafter be designated as the Board, the State, or the Second-Injury Fund. The respondent, Cefus *510 Guidry, shall be referred to either as respondent or Guidry.
This suit was filed by Guidry against the Second Injury Fund, the State of Texas, and the Industrial Accident Board, to recover benefits from the Fund, as provided by Sections 12c,[1] 12c-1,[2] and 12c-2[3] of Article 8306, Vernon's Annotated Civil Statutes of Texas. Guidry claims that the material facts show that in childhood he sustained a noncompensable injury to his left eye resulting in total loss of vision in that eye, and that on January 31, 1957, while in the course of his employment with Bechtel Corporation, a subscriber to the Workmen's Compensation Act, he sustained an injury to his right eye, resulting in total loss of vision in that eye, and that the combined effects of the two injuries had rendered him totally and permanently disabled. Guidry claimed that in view of these facts he was entitled to a recovery of compensation for 301 weeks from the Second Injury Fund.
The State, the Second Injury Fund, and the Board filed a plea in abatement and a plea to the jurisdiction of the trial court asserting: (1) that no prior consent had been given by the legislature to sue the State of Texas, and (2) that lack of jurisdiction was clearly shown in that Guidry failed to give notice of his injury of January 31, 1957, to the Second Injury Fund within thirty days thereafter, and that he failed to make claim against the Second Injury Fund within six months thereafter. These pleas were heard in limine and were overruled by the court.
Thereupon, the court proceeded to trial, and submitted three special issues to a jury. The jury found: (1) that the injury sustained by Guidry on January 31, 1957, resulted in incapacity to work; (2) that it resulted in total incapacity to work *511 and earn money; (3) that such total incapacity will be permanent. The trial court accepted the verdict and entered judgment thereon that Guidry recover of and from the Second Injury Fund compensation at the rate of $25 per week for the period of 301 consecutive weeks from and after January 4, 1959. On appeal the Court of Civil Appeals reversed and remanded the case to the trial court for a new trial. 336 S.W.2d 785. We reverse the judgment of the Court of Civil Appeals for the reasons now to be stated.
The State concedes that its plea in abatement asserting that Guidry had not pleaded or proved the consent of the legislature to sue the State of Texas is without merit.
The State does, however, contend that since the Second Injury Fund Sections of Article 8306, supra, are an integral part of the Workmen's Compensation Act, and since the Second Injury Sections of said Article do not in and of themselves provide for notice to and claim against the Second Injury Fund, Guidry must comply with the necessary jurisdiction prerequisites as provided in Section 4a[4] of Article 8307, Vernon's Annotated Civil Statutes.
The State admits that Guidry's employer had immediate notice of the injury sustained on January 31, 1957, and that Guidry's claim against the insurer was filed on March 27, 1957, well within six months from the date of the injury. The contention is made, however, that under Section 4a, Article 8307, supra, a claimant who seeks to recover benefits from the Second Injury Fund on account of the combined effects of a prior noncompensable injury and a subsequent compensable injury must put the Board on notice within thirty days after the occurrence of the second injury that he is claiming benefits from the Second Injury Fund and likewise must file formal claim for benefits against the Second Injury Fund within six months from the date of his compensable or second injury. We agree with this contention.
The problem of the compensation to be awarded to a handicapped or previously injured workman who has been subsequently incapacitated as the result of a second injury has been before the Texas courts. However, the question as to when notice to the Second Injury Fund must be given, and as to when the claim for compensation out of the Second Injury Fund must be filed with the Board is one of first impression in this jurisdiction. Admittedly, Guidry failed to give notice of injury to the Second Injury Fund within thirty days of the accident of January 31, 1957, and failed to make claim against the Second Injury Fund within six months of the accident. While it is true that Guidry's claim against the insurance carrier was filed with the Industrial Accident Board, as required by Section 4a, supra, and was by the Board heard and considered, the fact remains without dispute that at no time in the course of such proceedings does the record reflect that a claim was formally filed against the Second Injury Fund as required by said Section of the Workmen's Compensation Act. Guidry neither pleaded nor proved any good cause for his failure to comply with the provisions of this Section. He takes the position that his cause of action did not accrue until final adjudication of the claim against the insurance carrier for the injury sustained on January 31, 1957. He claims that his cause of action did not accrue until May 21, 1958, when the claim against the insurance carrier *512 was finally adjudicated and an agreed judgment for $2,500 was entered in the Federal District Court. We do not agree. Guidry's cause of action accrued on January 31, 1957, and in order to preserve his claim against the Second Injury Fund it was incumbent upon him to give notice to the Second Injury Fund within thirty days from that date and file his claim thereon within six months. This he did not do.
Since the Second Injury Fund Sections of Article 8306 are an integral part of the Workmen's Compensation Act, and since they do not in and of themselves provide for notice to and claim against the Second Injury Fund, we necessarily must read into the Second Injury Fund Sections the provisions of the Workmen's Compensation Act which provide the time for the giving of notice of claim and the time for filing of a claim against the insurance carrier. By placing the Second Injury Fund Sections, supra, into the Workmen's Compensation Act and by remaining silent as to the manner in which a claim against the Second Injury Fund is to be perfected and considered, the legislature undoubtedly intended that the established procedure of administrative disposition by the Board, and all pertinent provisions of the Act for that matter, be equally applicable to a claim against the Second Injury Fund as they are applicable to claims against insurance carriers. A proceeding by a claimant against the Second Injury Fund does not differ materially from a proceeding by a claimant against the insurance carrier. It follows, therefore, that all necessary jurisdictional prerequisites as provided in Section 4a, supra, must be complied with in suits to secure payment from the Second Injury Fund as are required in other Workmen's Compensation cases. If the legislature had intended to provide other and different periods of time within which to give notice and file claims against the Second Injury Fund, it could have easily incorporated such provisions in the Second Injury Fund amendment to the Workmen's Compensation Act. The power rests with the legislature to prescribe the method of procedure under the Act. We decline to assume the responsibility of fixing a statutory period of limitations for the giving of notice and the filing of claims against the Second Injury Fund. As the Second Injury Fund is now written, we see no reason why it would be unreasonable to require that in cases such as Guidry's, the claimant should, if he expects to recover from the Second Injury Fund, comply with the jurisdictional prerequisites as provided in Section 4a, supra. On January 31, 1957, the date Guidry sustained the second injury, he knew that he had a potential claim against the Second Injury Fund as well as against the insurance carrier. Both claims should have been presented by joint proceedings against the Second Injury Fund as administered by the Board, and against the assets of the compensation carrier administered by the insurance company. If such procedure had been followed by Guidry, then both issues could have been adjudicatd in one lawsuit. A finding by the trier of the facts that Guidry had sustained the total loss of his right eye, or the total loss of the use of his right eye as the result of the injury sustained on January 31, 1957, and, prior thereto he had sustained total loss of the left eye or the total loss of the use of his left eye, would have afforded the basis for the entry of a judgment against the insurance carrier for the loss as to the right eye, a specific injury, and against the Second Injury Fund for an amount which would make up the difference between the statutory compensation provided for the second injury and the amount which otherwise would be allowed for the incapacity resulting from the combined effect of both injuries. In this type of claim the Second Injury Fund is entitled to the same protection and privileges which the legislature has given the insurance carriers. To deny the Board the right to notice within thirty days after the accident that a claim against the Second Injury Fund was to be asserted, as well as the claim against *513 the insurance carrier, would deprive the Board of the valuable right of making an immediate investigation of the facts upon which the employee based his claim for compensation from the Second Injury Fund.
The judgments of the trial court and that of the Court of Civil Appeals are both reversed and judgment is here rendered that the respondent take nothing by his suit.
STEAKLEY, J., not sitting.
NOTES
[1] "Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers' Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the `Second-Injury Fund' hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries." Acts 1917, p. 269; Acts 1947, 50th Leg., p. 690, ch. 349, § 1.
[2] "Sec. 12c-1. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as `Second-Injury Fund,' hereafter defined." Acts 1947, 50th Leg., p. 690, ch. 349, § 1.
[3] "Sec. 12c-2. The special fund known as the `Second-Injury Fund' shall be created in the following manner:
"(a) In every case of the death of an employee under this Act where there is no person entitled to compensation surviving said employee, the association shall pay to the Industrial Accident Board the sum of Three Thousand Dollars ($3,000) to be deposited with the Treasurer of the State for the benefit of said Fund and the Board shall direct the distribution thereof.
"(b) When the total amount of all such payments into the Fund, together with the accumulated interest thereon, equals or exceeds One Hundred Thousand Dollars ($100,000) in excess of existing liabilities, no further payments shall be required to be paid to said Fund; but whenever thereafter the amount of such Fund shall be reduced below Fifty Thousand Dollars ($50,000) by reason of payments to such Fund, then payments to such Fund shall be resumed forthwith, and shall continue until such Fund again amounts to One Hundred Thousand Dollars ($100,000) including accumulated interest thereon." As amended Acts 1957, 55th Leg., p. 1186, ch. 397, § 1.
[4] "Sec. 4a. Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of the first distinct manifestation of an occupational disease; * * *" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625754/ | 345 S.W.2d 951 (1961)
ECONOMY FURNITURE, INC., Appellant,
v.
J. G. JIRASEK et ux., Appellees.
No. 10834.
Court of Civil Appeals of Texas, Austin.
April 12, 1961.
Rehearing Denied May 10, 1961.
*952 Fagan Dickson and Smith, Robinson & Starnes, Austin, for appellant.
Byrd & Davis, Jack C. Eisenberg, Austin, for appellees.
HUGHES, Justice.
J. G. Jirasek and wife, Eleanor Virginia Jirasek, appellees, sued Economy Furniture, Inc. for damages to their property and for damages for personal injuries, harm, annoyance and inconvenience sustained by them as a result of the maintenance of a private nusiance by appellant at its furniture manufacturing plant northwest of Austin, and located about 1600 feet southeast of appellees' property on which they resided.
Appellant installed an incinerator in connection with the operation of its furniture factory for the purpose of aiding in the disposal of waste products. The damages sued for were occasioned by the emission of smoke, fumes, sawdust, partially burned sawdust, ashes and soot from such incinerator.
Trial to a jury resulted in a verdict and judgment for appellees.
Appellant's first two points, briefed together, are that the Trial Court erred in overruling its motion to strike an affidavit attached to appellees' answer to appellant's cross action, and in permitting the affidavit to be amended after overruling motion for new trial and after notice of appeal was filed.
Trial was had upon appellant's Second Amended Original Answer and Counterclaim and Appellees' Third Amended Original Petition.
In its pleading, appellant, after making some special exceptions, pleaded as follows:
"Without waiving the foregoing, now comes Defendant for further answer herein and adopts all of the allegations in the First Amended Answer and Counter-Claim of Defendant Economy Furniture, Inc. on file herein."
We doubt the sufficiency of this pleading to keep the previously filed answer and counterclaim alive because of the provisions of Rule 65, Texas Rules of Civil Procedure, which provides, with certain exceptions inapplicable here, that when a substituted instrument is filed the "* * * instrument for which it is substituted shall no longer be regarded as a part of the pleading *953 in the record of the cause * * *," and Rule 58, T.R.C.P., which provides that:
"Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion, so long as the pleading containing such statements has not been superseded by an amendment as provided by Rule 65."[1]
If there is no counterclaim, the invalidity of the answer to it would be immaterial. Even so, we proceed to state and dispose of the points made.
By reference to appellant's First Amended Answer and Counterclaim, we find that a compromise agreement between the parties dated August 29, 1958, was pleaded, as well as its breach by appellees, for which damages were sought.
Appellees' answer to this counterclaim was that the consideration for the compromise agreement had failed. Attached to this pleading was an affidavit dated November 11, 1959, which is complete with the exception that it is not signed by affiant, J. G. Jirasek. This instrument was filed June 11, 1959.
The trial of this case commenced April 11, 1960. Appellant's motion for new trial was overruled May 23, 1960, and notice of appeal was then given.
In its pleadings appellant had excepted to the plea of failure of consideration because of nonverification, which the Trial Court overruled, and this ruling was assigned as error in its motion for new trial.
On May 27, 1960, appellees filed a sworn motion containing these recitations and prayer:
"On the date this cause came on for trial, namely April 11, 1960, after the parties had announced ready for trial, after the selection of the jury but prior to the taking of testimony, J. G. Jirasek, plaintiff, appeared in open court before Mrs. Charles Kohrs, a deputy clerk of Travis County, Texas, for the purpose of verifying the failure of consideration portion of the Plaintiffs' Answer to Defendant's Cross-Action, as required by the Texas Rules of Civil Procedure.
"2. At the time plaintiff J. G. Jirasek appeared he read the instrument containing the failure of consideration portion of his pleadings and after understanding same raised his right hand and on his oath stated that same were true and correct and that he swore same were true and correct. The oath was administered by the clerk in the presence of other witnesses.
"3. Plaintiff would further show unto the Court that the affidavit had been typed previously in the month of November, 1959. Therefore, it was necessary to make a clerical change in the statement of the notary which was inadvertently not done. The true facts are that the verification took place on April 11, 1960.
"Wherefore, premises considered, plaintiffs pray that this Honorable Court set a time for a hearing to take testimony on the correction of this clerical error, and that upon such hearing an order be entered changing said date so as to comport with the true fact."
On May 31, 1960, appellant filed a motion for a nunc pro tune order striking the affidavit dated November 11, 1959.
It appears from the testimony of Mrs. Chas. Kohrs, deputy district clerk, and from appellee Mr. Jirasek, as well as from the Trial Judge that November 11, 1959, was an incorrect date and that April 11, 1960, was the date on which Mr. Jirasek swore in open court to the truthfulness of *954 the plea of failure of consideration, but that he failed to sign the affidavit. This defect was remedied by the court at the hearing held on June 3, 1960 on the motions above mentioned. We copy and adopt, factually and legally, the following statement of the Trial Court made in granting appellees' motion and in overruling appellant's motion:
"The Court: Counsel will recall that at the time I overruled Defendant's Motion for New Trial that the Court stated, after rendering my judgment in that regard, that it was my recollection that the plaintiff, Mr. Jirasek, had sworn to it here in open court, and therefore substantially complied with the requirement, so far as attaching his affidavit to the particular pleadings involved.
"One of counsel for the defendant then called my attention to the fact that it was the 11th of November that it was dated. Frankly, I was at that time quite nonplussed and quite taken aback in so far as my memory goes, because at that time my memory I was sure was clear about the matter, but I knew that I was in the hospital on November 11th and could not have been here, and I so stated to counsel that I must have been wrong, because I could not have been here on November 11th.
"However, with the testimony of Mrs. Kohrs, and she apprised me of the situation shortly after that, that the dating and signing of it by the Clerk, by Mrs. Kohrs, was done at the beginning of the trial, rather than in November. That they were just blanks put there, and she filled in the blanks, and did not notice the month set out, so I still rely on my memory in that regard, because it is my recollection that Mr. Jirasek stood before the Clerk's desk and swore to that affidavit on the 11th of April.
"Now, it is not my practice to be on the Bench until counsel for both parties are in the courtroom. I recall being here and seeing it, and I can't say certainly that counsel for the defendant knew about it, but certainly it was with my consent and permission. I recognize, of course, that it was not signed at the time. I did not check it at the time. It appears that the Clerk did not check it, and that attorneys for the plaintiff did not check it, but I consider it as substantial compliance with the provision for the affidavit to the pleading which is required to be verified, and that is the reason I overruled the motion for new trial, and so I am going to overrule the motion to strike the affidavit at this time, and I will order it corrected, nunc pro tunc, by drawing a line through the word `November' and placing in there the word `April,' and I will allow further correction by allowing Mr. Jirasek to sign it at this time, rather than as of that time.
"Now, if that is enough to reverse a case on, I don't think it ought to be, because I don't think anybody has been harmed by it. The pleadings have been there, and they have been clear to everybody, and I have ruled on it in the light of the concept of the fact that it was sworn to all through the case, and that will be my ruling in that regard, and I will ask Mr. Jirasek if he will sign it now. Of course, the year 1959 should be changed to 1960, also. Now, the Reporter is taking this down so it will be a part of the record, and you will have your full bill to it. I recognize fully the technical absence of the affidavit at the time you went to trial, but I think it was substantially complied with, and I do not believe the entire case should be thrown out at this time because of that technicality involved, which should have been caught by me or by the Clerk or by counsel at that time and called to the Court's attention.
*955 "I will allow Mr. Jirasek to sign this immediately above the affidavit itself, and will direct the Clerk to make that change here in court, and I will say that it is my recollection, and I am fairly sure on that matter, and I think counsel will understand how I am so sure about it, because I was so certain about it at the time, and I was so frankly quite taken aback when I saw the date of November 11th, and I did not understand how in the world my recollection could be so far off at the time I overruled the motion for new trial. So, Mr. Jirasek, if you will sign this, and the Clerk will change this, and the record will note what was changed."
The third point made by appellant is that the settlement agreement and release dated August 29, 1958, not having been cancelled, is a bar to this suit at least insofar as this suit includes the period for which damages were paid.
On August 29, 1958, the parties entered into a compromise agreement respecting the nuisance involved herein from which we quote:
"For and in Consideration of their mutual promises contained herein and of the specific considerations mentioned below, the parties hereto agree as follows:
"* * * * * *
"(2) Economy Furniture and Milton T. Smith and wife, Helen G. Smith,[2] hereby agree that nothing will be burned in the incinerator adjacent to their furniture manufacturing plant on any night between the hours of 8:00 p. m. and 6:00 a. m. and that on or before 8:00 p. m. on every day all fires burning in said incinerator will be fully extinguished.
"(3) Economy Furniture and Milton T. Smith and wife, Helen G. Smith, further agree that during the daytime, between the hours of 6:00 a. m. and 8:00 p. m., nothing will be burned in the incinerator if the weather and the performance of said incinerator are such that smoke or other products of the incinerator are blown or deposited upon the premises of J. G. Jirasek and wife in such quantities as to reasonably cause material annoyance, inconvenience or discomfort to J. G. Jirasek or any member of his family; and if such condition exists, all fires then burning in said incinerator will be immediately and fully extinguished and the incinerator closed down until said conditions change.
"In this connection the parties hereby designate Tom Bagley as an independent aribiter and agree that on such times and occasions, between the hours of 6:00 a. m. and 8:00 p. m., that J. G. Jirasek or Eleanor Virginia Jirasek believe that the conditions described above exist, they may contact the said Tom Bagley and advise him of their belief that said conditions exist and that thereupon Tom Bagley shall make whatever investigation he deems necessary and shall determine whether such conditions exist, that is, whether smoke or other products of the said incenerator are being blown or deposited upon the premises of J. G. Jirasek and wife in such quantities as to reasonably cause material annoyance, inconvenience or discomfort to J. G. Jirasek or any member of his family. If upon any such occasion Tom Bagley finds that such conditions do exist, he shall immediately advise Economy Furniture by and through either Milton T. Smith or Helen G. Smith, or in the event of their unavailibility, by and through Albert Kern, and Economy Furniture and Milton T. Smith and wife will immediately cease burning waste products or any other material in the said incinerator and *956 will fully extinguish the fire then burning in said incinerator and will leave the incinerator closed until such conditions change. If, on the other hand, Tom Bagley finds that such conditions do not exist, he shall so advise J. G. Jirasek or Eleanor Virginia Jirasek and no further complaint will be made on said occasion.
"All parties hereby agree that Tom Bagley will incur no liabilities of any kind arising from his actions under this agreement and the decisions of Tom Bagley as to whether the conditions described above exist, even if erroneous, will be accepted by all parties as final and no recourse or claim of any kind or nature, whether valid or invalid, will be asserted by or available to any party against Tom Bagley arising from his actions under this agreement. Tom Bagley, by signing this agreement accepts the function designated to him thereunder and agrees to act as arbiter under the terms of this agreement but in no way assumes any liability to any party for claims or damages arising from his actions and decisions under this agreement.
"* * * * * *
"Without admitting any liability on the part of any of them, and without waiving any defense stated in defendants' Second Amended Original Answer, and only by way of compromise Economy Furniture and Milton T. Smith and wife have contemporaneously with the execution of this agreement paid unto J. G. Jirasek and Eleanor Virginia Jirasek the sum of $750.00 in cash, the receipt and sufficiency of which is hereby acknowledged, and J. G. Jirasek and Eleanor Virginia Jirasek fully and finally release Economy Furniture and Milton T. Smith and wife, Helen G. Smith, from all claims for costs, attorneys' fees and other expenses incurred in connection with the above described lawsuit, and also from all claims and actions for damages for annoyance, inconvenience and bodily discomfort incurred to date as a result of the smoke from said incinerator, such claims being specifically described in paragraph IV of Plaintiffs' Second Amended Original Petition in the above described suit. This release is not and should not be construed as a release of any future personal or property damages suffered by J. G. Jirasek or Eleanor Virginia Jirasek as a result of said smoke or of any claims for damages resulting from any loss in value of the above described real estate belonging to J. G. Jirasek and Eleanor Virginia Jirasek caused by the presence of said incinerator and smoke. It is agreed, however, that so long as Economy Furniture and Milton and Helen Smith abide by this agreement, no claim for such damages will be asserted by suit, demand, or in any other manner."
The order dismissing the suit pending when this agreement was made was without prejudice to all rights specifically reserved to appellees in the agreement.
Appellant excepted to appellees' pleading because this agreement was not alleged nor attacked. In response to these exceptions, appellees pleaded that various provisions of the settlement agreement had been breached and that the consideration for it had failed.
We believe that the breach of the covenants contained in the settlement agreement was fully averred as well as that the binding effect of the agreement was vitiated by failure of consideration.
It is not here contended that there is a dearth of evidence to support these allegations, and, for that reason, we will not refer to the testimony.
The court submitted and the jury found the damage issues as follows: (a) Damages for personal injuries and annoyance up to August 29, 1958, the date of the settlement *957 agreement, $750 (b) similar damages from August 29, 1958 to January 22, 1959, $1750 (c) permanent damages to real property $1,700.
The court in its judgment allowed as a credit to appellant the amount it had paid in the settlement.
Appellant complains that the evidence of damage and the damage issues were not restricted to the period subsequent to the settlement.
As has been noted, the settlement agreement was not simply the payment of a recited sum for the release of all claims. It was contractual in nature and was a continuing agreement. From the testimony of inconvenience, annoyance and discomfort suffered by appellees as a result of the nuisance maintained by appellant, it is not difficult to appreciate that the essence of the settlement agreement was not the payment of money, but the eradication of the nuisance.
The jury found that appellant breached its settlement agreement in many respects, and that the breaches were material.
No contention is made that these findings are insufficiently supported by evidence.
It is our opinion that these findings constitute a valid basis for disregarding the contract of settlement in the admission of evidence and submission of issues relating to damages, as the trial court did.
It is also our opinion that the trial of the issues relating to the settlement agreement, together with the principal cause of action was proper, at least in the absence of a request for a separate trial. See Rule 174, T.R.C.P.
Rule 94, T.R.C.P., provides, in part, that in pleading to a preceding pleading, a party shall affirmatively set forth "release" if it is to be relied on defensively. This certainly implies but one trial.
Appellant's forth point is that judgment for appellees was unwarranted in the absence of jury findings of negligence on the part of appellant, and that such negligence was a proximate cause of appellees' injuries and damages.
The theory of appellees' case as pleaded was not negligence, but the maintenance of a nuisance. The jury found that appellant did not act in a reasonable manner in using and operating its disposal facilities at its furniture factory and that the emission of smoke, sawdust, etc. therefrom constituted a nuisance. These findings are unassailed.
The jury also found that appellees' damages did not accrue without the negligence of appellant.
It is well settled that pleading and proof of negligence is not essential in cases of this character. Nuisances, Vol. 31, Tex. Jur., Sec. 11, Harper and James, Law of Torts, Vol. II, Sec. 22.8, Marvel Wells, Inc. v. Seelig, Tex.Civ.App., Austin, 115 S.W.2d 1011; Columbian Carbon Co. v. Tholen, Tex.Civ.App., Galveston, 199 S.W.2d 825, writ ref.; King v. Miller, Tex.Civ.App., Eastland, 280 S.W.2d 331, writ ref., N.R.E.
Point four is overruled.
By its fifth point, appellant complains of the absence of a jury finding of "unreasonableness on the part of appellant and a finding that such unreasonableness was the proximate cause of the damages suffered by appellees."
It is appellant's contention here that the jury findings, above referred to, do not constitute an affirmative finding that it made an unreasonable use of its property. We quote special issue No. 17 and answer:
"Special Issue No. 17
"Do you find from a preponderance of the evidence that under all the facts and circumstances the defendant Economy Furniture Company acted in a reasonable manner in using and operating its disposal facilities at the McNeil Road plant?
*958 "Answer: `Yes' or `No.'
"Answer: No."
The jury found that appellant maintained and operated a nuisance, which term was defined in the court's charge to include the unreasonable use of property. No objection was lodged to this definition. The finding of a nuisance by the jury included a finding of all the elements of nuisance as defined in the charge of the court.
The damage issues required the jury to find damages suffered by appellees "as a result of" the smoke, sawdust, etc.
It is our opinion, in the absence of objection, that this method of submission adequately limited the damages to those caused by the maintenance of the nuisance.
Points six and seven, jointly briefed are that there was no finding as to whether the nuisance was permanent or temporary, and that the jury finding of $1,700 damages in the diminished value of appellees' property, due to the nuisance, was against the weight of the evidence.
The jury found that the nuisance was of a "recurring nature."
The evidence shows that appellant's plant is located on a 28 acre tract which has been thoroughly graphed for full utilization and that other construction is contemplated. Appellant in this plant and in its mill employs 275 persons with a weekly payroll of about $16,000.
These facts and the recurring nature of the nuisance fully justified the court in assuming the permanent nature of the damages and in submitting a corresponding measure of damages to the jury. Marvel Wells, Inc. v. Seelig, supra.
If there was any error in this respect, appellant has waived it by failing to object either to the evidence as to damages or to the court's charge in this respect. See Strickland Transportation Co. v. Kool, Kooshion Mfg. Co., Tex.Civ.App., Fort Worth, 230 S.W.2d 277.
We will summarize the evidence upon the damage issue which appellant attacks as being against the weight of the evidence.
In the previously filed suit (1958) appellees filed a sworn pleading in which their property was stated to have a value of not more than $6,000 because of the then existing conditions created by appellant and the "before" value was $9,000 ($3,000 difference).
The property sold for $12,000 in June, 1959.
Appellant's expert witness Alford testified that the valuation of the property in June, 1959 was $9,000, and that the "before" value was $8,500.
Mr. Jirasek testified that he paid $650 for the acre on which his self constructed improvements were located. A half acre of nearby land was shown to have a value of $600$700. Two acres of nearby land was shown to have a value of $2,400.
The witness Albrecht testified appellees' property had a value of $7,000.
The witness Nardecchia, who purchased the property from appellees, testified that the house was poorly constructed and that the $12,000 purchase price was agreed to before he learned of the nuisance involved here and its depressing effect upon value. This witness also testified that appellees gave as their reason for selling that Mr. Jirasek wanted to go in the turkey business with his brother-in-law at Jollyville.
Mr. Glenn Cater, a qualified witness for appellees, testified that the property in June 1959, had a value of $16,000, but that this value would be diminished by some four or five thousand dollars due to the conditions caused by appellant's plant.
Mr. Alford, appellant's witness, confirmed the opinion that these conditions would cause the value of the property for residential use, to be depreciated.
Fixing the value of real property by opinion testimony is not susceptible to precise *959 or exact standards of measurement. The important inquiry in cases of this character where property is damaged and not taken is as to the difference between the values before and after the occurrence of the cause for complaint. See Southwestern Bell Telephone Co. v. Willie, Tex. Civ.App., Austin, 329 S.W.2d 466, writ dism.
In our opinion the damage issue as answered is not so against the preponderance and overwhelming weight of the evidence as to be manifestly unjust.
The judgment of the Trial Court is affirmed.
Affirmed.
NOTES
[1] The counterclaim was properly included in the Answer. Rules 84, 85, T.R.C.P.
[2] Mr. and Mrs. Smith are owners of Economy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625759/ | 345 S.W.2d 220 (1961)
Lillian I. RANDALL, Plaintiff-Appellant,
v.
ST. ALBANS FARMS, INC., et al., Defendants-Respondents.
No. 48116.
Supreme Court of Missouri, Division No. 1.
April 10, 1961.
J. Marvin Krause, St. Louis, for appellant.
Thompson, Mitchell, Douglas & Neill, Edmonstone F. Thompson, St. Louis, Jenny & Cole, Frank W. Jenny, Union, for respondents.
DALTON, Judge.
Action to quiet title and in ejectment for described real estate in Franklin County. The trial court sustained defendants' motions to dismiss and dismissed plaintiff's petition. Plaintiff has appealed.
The petition contained two counts. The first four subdivisions of the first count were reincorporated by reference in the second count. These subdivisions stated that the cause involved title to real estate in Franklin County; and that the action "was originally instituted in this county" (no date stated) against Irene W. Johnson (who had since died on January 18, 1954) "and certain other named defendants." The names and legal capacities and relationship of the several defendants in the present action were then set out and certain transfers of interest between the parties were stated *221 Except insofar as these subdivisions designated the defendants, the allegations are immaterial to the issues here presented.
The count in quiet title further alleged that "plaintiff is the owner in fee simple and claims title to the following real estate * * * in Franklin County and State of Missouri." The particular description is then set out and the acreage stated as follows: "* * * containing 202.88 acres more or less, with all accretions to same formed since 1930, if any." It was then alleged that "the deceased defendant Irene Johnson claimed and defendants herein claim some title, estate or interest to or in said premises, the nature and character of which claim is unknown to plaintiff and cannot be described herein, except that said claim is adverse and prejudicial to plaintiff." The count concluded with a prayer for an order of publication for unknown heirs of Irene W. Johnson and that "the court try, ascertain and determine, adjudge and decree the estate, title and interest of the plaintiff and the defendants, respectively, in and to the real estate aforesaid."
The count in ejectment, after the first four mentioned subdivisions, alleged that on "the 31st day of October, 1931, plaintiff was entitled to the possession of the following described premises situate in the County of Franklin and State of Missouri." The real estate and acreage described was the same as described in the count to quiet and determine title. It was then alleged that plaintiff "being so entitled to the possession; the Irene W. Johnson by her own act and through her agents and servants afterward on, to wit: the 1st day of November, 1931, entered into such premises secretly against the will of and without the consent or knowledge of plaintiff and unlawfully withheld from the plaintiff the possession thereof to the time of her death; that substituted defendants now continue to withhold possession thereof from [sic] plaintiff's damage in the sum of Fifteen Hundred Dollars ($1,500.00)." The value of the monthly rents was stated to be $125 and the prayer was for an order of publication for "the unknown heirs and assignees of Irene W. Johnson, deceased, claiming title in the described real estate"; and that plaintiff have "judgment for the recovery of said premises" and damages, as alleged, for withholding possession from plaintiff and for monthly rent in the amount stated, "from the rendition of the judgment until the possession of the premises is delivered to plaintiff * * *."
The petition in question was filed in the Circuit Court of Franklin County on April 16, 1959, and, thereafter, on September 15, 1959, "summonses were issued on all defendants" and returns as to service were subsequently filed.
Some defendants joined in one motion to dismiss the plaintiff's petition and other defendants joined in another motion to dismiss. The motions to dismiss were filed October 15, 1959, and both contain somewhat similar allegations and alleged that the present action had not been timely refiled under Sec. 516.230 RSMo 1949, V.A. M.S. The facts alleged were that: "The case of Lillian I. Randall v. Irene W. Johnson, being Case No. 14,083, was originally filed in this Court to the March Term of 1938; on August 16, 1944, said cause was dismissed for failure of prosecution, and was thereafter reinstated; on April 22, 1958, this Court, upon its own motion, dismissed this case for failure of the plaintiff to prosecute." It was further alleged that while the instant petition was filed on April 16, 1959, no summonses were issued until September 15, 1959, as plaintiff well knew from correspondence with the clerk of the court; and that "this cause of action not having been commenced within one year after said dismissal of April 22, 1958, * * * it has not been timely filed and therefore this court has no jurisdiction over the person of these defendants." In view of the issue here presented, alternative allegations by certain defendants in one of the motions need not be reviewed, but the matter is subsequently referred to.
*222 The motions to dismiss were not verified and the pleadings in the prior action were not offered in evidence, nor was there any evidence as to the date of filing or dismissal of the prior action. See Sec. 509.290 RSMo 1949, V.A.M.S. The nearest approach to the date of dismissal of the prior suit appears from the testimony of Bryan Moser, a witness for plaintiff, that it was in April 1958; and that he heard the Judge's decision. The particular day was not stated. Moser was not a party to the action, nor was he an attorney for plaintiff, but he was looking after plaintiff's business. When the present action was filed, he gave the circuit clerk no instructions in regard to withholding the issuance of summons. The parties to the present action, filed a stipulation at the time of the hearing of the motions to dismiss to the effect that a letter was written by plaintiff's attorney to the clerk of the circuit court on April 15, 1959; that it was received by the clerk on the 16th; that a copy of the letter was in the files in this case; and that a reply was made to the same. The effect of the stipulation was to bring before the court in the hearing on the motions the content of both letters. The letter of April 15, 1959, to the clerk concerning the case stated: "Enclosed find check in the sum of $18.00 to cover court costs in the above matter. Also find original and two copies of the petition in this matter which I would appreciate being filed immediately. I am having sufficient copies made for the other defendants."
The letter of the clerk dated April 16, 1959, acknowledged the receipt of the check and the copies of the petition and stated that the original petition had been filed. The letter further stated: "Upon further instructions from you as to the defendants' addresses and receipt of sufficient copies of petition, we shall issue summonses." Plaintiff's counsel brought the necessary additional copies of the petition to the clerk's office on September 15, 1959, with certain addresses, and summonses were issued. Defendant St. Albans Farms, Inc. was served with process at St. Albans, in Franklin County, on September 17, 1959.
On January 5, 1960, defendants' motions to dismiss plaintiff's petition were sustained and plaintiff's petition was dismissed, as stated.
Appellant contends that the evidence will not sustain a finding that the issuance of summonses was withheld at the direction of plaintiff's counsel, citing Sec. 506.120 RSMo 1949, V.A.M.S.; State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473, 476; Henry Evers Mfg. Co. v. Grant, Mo.App., 284 S.W. 525, 528 and other cases. Appellant's theory is that the new action was commenced on April 16, 1959. We find nothing in the correspondence presented that can be construed as a direction by plaintiff's attorney to the clerk of the circuit court not to issue summons to any one or all of the defendants. The documentary evidence mentioned was insufficient to support a finding that the present action was not commenced on April 16, 1959. State ex rel. and to Use of Bair v. Producers Gravel Co., 341 Mo. 1106, 111 S.W.2d 521, 523(1, 2); Wormington (Woolsey) v. City of Monett (Banc) 358 Mo. 1044, 218 S.W.2d 586, 590(9); State ex rel. Great Lakes Steel Corp. v. Sartorius, Mo.Sup., 249 S.W.2d 853, 855; State ex rel. Brown v. Wilson, 216 Mo. 215, 115 S.W. 549, 573, and State ex rel. Rakowsky v. Bates, Mo.App., 286 S.W. 420, 421. Respondents rely on cases where express directions were given to withhold the issuance or service of summons. Green v. Ferguson, Mo.App., 184 S.W.2d 790; Hill-Behan Lbr. Co. v. Sellers, Mo.App., 149 S.W.2d 465, 467.
Appellant further contends that the court erred in sustaining the defendants' motions to dismiss plaintiff's petition because there was no proof introduced in the record to indicate that the causes of action stated in the petition were subject to limitations of any character or were barred by any statute of limitations.
*223 It is apparent that the motions to dismiss filed by defendants were filed pursuant to Sec. 509.290 RSMo 1949, V.A.M.S.; and that they sought to raise the question of jurisdiction over the person. Such motions do not prove themselves. Proof is required and the burden rests upon the party filing such a motion to make proof of its allegations. Rippe v. Sutter, Mo. Sup., 292 S.W.2d 86, 89(6-9); Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69, 71; Metcalf v. American Surety Co. of N. Y., 360 Mo. 1043, 232 S.W.2d 526, 530(4, 5). No evidence was offered as to the type or kind of the former action or of the parties, plaintiff and defendant, except as appears from the face of plaintiff's petition. The name of only one defendant in the prior action appears in the petition. The date of dismissal of the former action and the form of the court's order do not appear and were not shown by evidence. There was evidence that a witness heard the court dismiss a prior suit on some day in April 1958. While the defendants' motions to dismiss purported to be based on Sec. 516.230 RSMo 1949, V.A.M.S., the defendants offered no evidence tending to show that the causes of action purported to be stated in the petition were barred by any statute of limitations or that plaintiff required the assistance of the provisions of the saving statute, Sec. 516.230 RSMo 1949, V.A.M.S., in order to maintain the present suit. Halloran v. Hackmann, Mo.Sup., 160 S.W.2d 769, 771. And see Foster v. Pettijohn, 358 Mo. 84, 213 S.W.2d 487, 490(3, 5). Further, Sec. 516.230 RSMo 1949, V.A.M.S., does not curtail, but only extends the time allowed by certain other statutes of limitations. Karnes v. American Fire Ins. Co. of Philadelphia, 144 Mo. 413, 419, 46 S.W. 166. Defendants offered no evidence that Sec. 516.230, referred to in their motions to dismiss, had any necessary application to plaintiff's present action to permit its maintenance. Foster v. Pettijohn, supra.
While plaintiff's petition and the evidence offered in support of the motions to dismiss tended to show that a prior action had been filed by plaintiff and that it had been dismissed by the circuit court of the same county, the proceedings therein were in a different case and no request was made by either plaintiff or defendants that the court take judicial notice of its own records in the prior case, nor does the record show that the court did take such judicial notice of its own records on its own motion in order to rule the issues presented. See Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 893. Judicial notice is a rule of evidence. Timson v. Manufacturers' Coal & Coke Co., 220 Mo. 580, 119 S.W. 565, 569; Scheufler v. Continental Life Ins. Co., 350 Mo. 886, 169 S.W.2d 359, 365. The facts of which a trial court does take judicial notice must be offered in evidence so as to become a part of the record in the case. Hume v. Wright, Mo. Sup., 274 S.W. 741, 744(3); Scheufler v. Continental Life Ins. Co., supra, 169 S.W.2d 359, 365(4); Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274, 279(6-8). And see Knorp v. Thompson, supra, 175 S.W.2d 889, 894(4). The reasons for such a rule are well stated in the foregoing cases.
Under Sec. 509.270 RSMo 1949, V.A.M.S., demurrers to pleadings were abolished, but the sufficiency of a pleading to state a claim upon which relief may be granted can be raised by motion. See Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907, 910. No dates are alleged in the count of plaintiff's petition to quiet and determine title, other than the date of the death of a prior defendant Johnson, on January 18, 1954, and no facts were put in evidence tending to show the action was barred by any statute of limitations. The facts stated in this count were sufficient to state a claim upon which relief could be granted under Sec. 527.150 RSMo 1949, V.A.M.S. Bailey v. Williams, Mo.Sup., 326 S.W.2d 115, 121; Klorner v. Nunn, Mo.Sup., 318 S.W.2d 241, 245(3, 4). And see Sec. 509.050 RSMo 1949, V.A.M.S. Supreme Court Rules 55.06 and 93.01, V.A.M.R., became *224 effective subsequent to the date of the judgment appealed.
We need not rule the sufficiency of the count in ejectment to state a claim upon which relief can be granted, because the motions to dismiss have not assigned as a ground for dismissal that this count of the petition failed to state a claim upon which relief could be granted. While respondents now contend in this Court that plaintiff's petition shows on its face that the action is barred by the ten-year statute of limitations (Sec. 516.010 RSMo 1949, V.A.M.S.), the motions to dismiss, which were filed and ruled in the trial court, assigned no such ground. The motions to dismiss must be considered on appeal in accordance with their allegations and upon the same theory upon which they were presented and ruled in the trial court. Gibson v. Ransdell, Mo.Sup., 188 S.W.2d 35, 38(6, 7).
Respondents also insist that "the court properly sustained the motion to dismiss appellant's petition as to the three executors since the period for filing claims against the estate had passed and since the executors had been discharged and the estate had been closed prior to the filing of this case." Respondents refer to the alternative portion of the motion to dismiss filed on behalf of "Oscar Johnson, formerly Executor, individually, and as Trustee; James Lee Johnson, formerly Executor, individually, and as Trustee; and St. Louis Union Trust Company, formerly Administrator C.T.A., as Trustee." While a portion of the motion to dismiss alleged the mentioned facts and asked for alternative relief, this portion of the motion concluded as follows: "Wherefore, these defendants pray this Court that it dismiss this cause against them as such Executors and Administrator c.t.a. at the plaintiff's cost without day." (Italics ours.) The trial court, however, did not sustain this portion of respondents' motion and no order was entered thereon adverse to appellant. The trial court sustained the first part of the respondents' motion to dismiss and dismissed plaintiff's petition. It was from this latter order and judgment that plaintiff took her appeal.
We have not overlooked the statement in appellant's reply brief that the only issue rightfully before this Court "is whether the suit was commenced within the year"; and that this Court has never barred an action on a motion to dismiss "unless there was the most positive proof of a specific and explicit instruction to the Circuit Clerk to withhold the issuance of summons." Assuming that the issue was as stated, nevertheless there was no evidence before the trial court to sustain the allegations of the motions to dismiss, or to support the court's action in sustaining the motions and dismissing plaintiff's petition on the basis requested.
The judgment is reversed and the cause remanded.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625829/ | 464 So. 2d 876 (1985)
Marilyn Adams, wife of/and Earl ADAMS
v.
DENNY'S INC. et al.
No. CA 2280.
Court of Appeal of Louisiana, Fourth Circuit.
February 12, 1985.
Writ Denied April 19, 1985.
Roger J. LaRue, Jr., Metairie, for plaintiffs-appellants.
James R. Sutterfield, R. Joshua Koch, Jr., James M. Walker, Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, New Orleans, for defendants-appellees.
Before SCHOTT, GARRISON and WILLIAMS, JJ.
SCHOTT, Judge.
This is a suit by Mr. and Mrs. Earl Adams, plaintiffs, seeking worker's compensation benefits for Mrs. Adams for injuries she sustained when she fell down while on her job as a waitress. In the same suit they seek damages for the wrongful death of their unborn child with whom Mrs. Adams was pregnant at the time of the accident. They allege that the accident was caused by the negligence of Mrs. Adams' employer, Denny's Inc. The trial court granted defendants' motion for partial summary judgment and dismissed plaintiffs' tort claim. Plaintiffs have appealed. The issue is whether the exclusiveness of *877 the worker's compensation remedy bars plaintiffs' wrongful death claim for their unborn child.
Louisiana worker's compensation law contains the following pertinent provisions:
R.S.23:1031 "If an employee ... receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation..."
R.S.23:1021: "As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
* * * * * *
(7) `Injury' and `personal injuries' include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted." R.S.23:1032: "The rights and remedies herein granted to an employee or his dependent on account of an injury... shall be exclusive of all other rights and remedies of such employee ..." R.S.23:1166: "When an insurance company issues a policy of insurance to an employer covering claims for injuries to employees that may arise within the scope of the employer's business ... claims for injuries occurring during such period by such employees against the employer or the insurance company shall be exclusively under the worker's compensation act."
From these statutes it is clear that the trial court correctly dismissed the wrongful death action if the loss of the unborn child was an "injury" within the exclusivity provisions of Sections 1032 and 1166 of the act. The question then becomes whether this loss fits Section 1021's definition of "injury" as one to the physical structure of Mrs. Adams' body. Plaintiffs are not claiming in their tort suit any expenses or damages for pain and suffering in connection with her miscarriage. All of this was included in the worker's compensation claim. What is included in the tort claim is the loss of the fetus exclusively, that is, the claim is for the pain they have experienced and will continue to experience because of being deprived of their unborn baby.
In Danos v. St. Pierre, 402 So. 2d 633 (La.1981) the right of parents to recover for the wrongful death of their unborn child was recognized for the first time. One reason given by the court was the legislative pronouncement in Act 256 of 1976 that a human being exists from the moment of fertilization and implantation. Since this is so it cannot be said that the fetus is merely a part of "the physical structure of the body" of the mother such that its death constitutes an "injury" as defined by Section 1021(7). In Danos the court specifically approved of the reasoning of our predecessor court in Johnson v. South N.O. Lt. & Traction Co., No. 9,048 (Orl.App.1923) which rejected the notion that an unborn child is part of its mother's anatomy.
Since the loss of the child is not an "injury" as defined by the compensation act, the exclusivity sections, 1032 and 1166, do not even purport to bar an action for such loss, any more than they would prevent an employee from recovering damage to or loss of property from his negligent employer outside of compensation benefits if, for instance, he was injured and his automobile wrecked while being driven by a co-employee and while both were engaged in the employer's business. Nor would the exclusivity provisions prevent a waitress and her husband from bringing a tort action for the loss of her infant child if, for instance, she had been permitted to bring the child to her place of work and while holding the child slipped and fell because of the employer's negligence with the result that the child was killed. No one could successfully argue that the employee's claim as to the car in the first instance or the claim for the death of the baby in the second constituted claims for "injury" which means violence to the "physical structure of the body" of the employee. The same reasoning applies to the unborn *878 child who is a person, a human being, and not merely a piece of tissue from the mother's body.
Defendants place great reliance on Bergeron v. New Amsterdam Casualty Company, 243 La. 108, 141 So. 2d 832 (1962) in which the supreme court held that a waitress-employee and her husband could not maintain a tort action against her employer for damages she sustained from falling down on the job and suffering a miscarriage. While flatly holding that Section 1166 prevented such action, the case was decided long before the Danos case which now dictates a different result. In Bergeron the court did not even consider that the parents were claiming damages for the wrongful death of their unborn child as a cause of action separate and distinct from the mother's worker's compensation action for her injuries. And they could not, because, until Danos was decided, there was no cause of action in Louisiana for the wrongful death of an unborn child.
Accordingly, the judgment dismissing plaintiffs' wrongful death action is reversed and set aside and there is judgment in favor of plaintiffs and against defendants, overruling defendants' motion for partial summary judgment. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed against defendants; other costs are to await the outcome of the case.
REVERSED AND REMANDED.
WILLIAMS, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625842/ | 464 So. 2d 777 (1985)
Sidney ROSENTHAL, Jr. and Carolyn Rosenthal
v.
CLEARVIEW DODGE SALES, INC., Chrysler Corporation.
No. 84-CA-237.
Court of Appeal of Louisiana, Fifth Circuit.
February 11, 1985.
*778 Ronald Lee Monroe, New Orleans, for plaintiffs-appellants.
Edwin A. Stoutz, Jr., William F. Bologna, Elizabeth Alston, New Orleans, for defendants-appellees.
Before GAUDIN, GRISBAUM and DUFRESNE, JJ.
DUFRESNE, Judge.
This is an action in redhibition brought by the plaintiffs, Sidney and Carolyn Rosenthal, Jr. to rescind the sale of a 1977 Dodge Monaco. The defendants in this action are Clearview Dodge Sales, Inc. (Clearview), the vendor of the vehicle, and Chrysler Corporation (Chrysler), the manufacturer. The plaintiffs are seeking recision of the sale, damages and attorney fees. Clearview filed a third party demand against Chrysler, as manufacturer of the automobile, seeking indemnity for any liability Clearview might have to plaintiffs. The trial court dismissed Clearview's third party demand against Chrysler and ordered Clearview to pay to the plaintiffs the principal sum of $500.00, together with legal interest and costs. The court reasoned that the "existing defect in this vehicle is attributable to the attempted repair done by Clearview, and is not attributable to the manufacturer, Chrysler; said defect having been caused by defective repair work attempted *779 by Clearview." From this judgment plaintiffs have appealed seeking recision of the sale, attorney's fees and damages.
The plaintiffs assign the following errors for our review:
The trial court committed manifest error when:
1. It excluded plaintiffs' Exhibits P-34 and P-35 from introduction in evidence and gave no weight to them in reaching its decision;
2. It ordered a reduction in price and ignored clear and convincing evidence of the presence of redhibitory defects prior to the sale requiring recision of the sale and return of the purchase price and damages;
3. It failed to award attorney's fees.
The plaintiffs purchased a 1977 Dodge Monaco from Clearview Dodge on November 7, 1977. The plaintiffs allege that on their first ride in the vehicle, they detected what they described as "grinding in the rear end, whining in the rear end, and the loud clunking in the rear end of the vehicle." The plaintiffs state that on November 8, 1977, the first time they fully inspected the car, they noticed numerous scratches, dents, paint chips, defects, malfunctions and missing items. Inclusive of these alleged problems were grinding in the right wheel on braking, the car pulled to the right when driving, a loud noise in the vicinity of the right rear wheel, whining in the exhaust system at medium speeds (40-50 mph), loud and excessive noises from the rear suspension system when traveling over rough surfaces, grinding of metal in the rear at low speeds (15-20 mph) and a cracked parcel shelf.
On November 10, 1977, arrangements were made at the dealership for repairs and remedy of the complaints. Plaintiffs were assured that all problems would be corrected. On November 23rd, the plaintiffs were advised that the car was repaired and ready to be picked up. They went to the dealership not on the 23rd but on the 25th of November and found the car in the bodyshop, not repaired and with the same defects complained of after test driving. On November 29, 1977, the plaintiffs notified the dealership in writing of their dissatisfaction with the car and asked for another car free of defects, or rescind the sale and refund the full purchase price and damages, or repair and remedy the defects to their satisfaction.
Numerous repair attempts at the dealership and Key Dodge, three inspections by the manufacturer's representatives and frustration followed until the filing of this lawsuit.
The plaintiffs complained prior to filing of this lawsuit and they testified at trial that their vehicle's use is so inconvenient and imperfect that they would not have purchased it had they known of these numerous defects before the sale.
According to Mr. Rosenthal, he returned the vehicle to Clearview for servicing on November 21, 1977, and after four days the vehicle was returned, allegedly with the same noises. By his estimate, he alleged that he returned the vehicle to Clearview five times and he received no satisfaction relative to the problems with his vehicle. Mr. Rosenthal contends that he then contacted Chrysler who directed him to another dealership for correction of the alleged noises in the rear of his vehicle. Chrysler further agreed to pay for any repairs to the vehicle. Mr. Rosenthal claims the repairs were made, but within a week the offending noises started again. At this point he decided not to have the vehicle repaired anymore.
In March, 1982, Chrysler's Customer Relations Manager, J.T. Meals, inspected the plaintiffs' vehicle which included a test ride on open roads and over speed bumps. Meals was unable to detect a discernable noise in the rear end, however, he heard some clunks and rattles in the rear of the vehicle. He was able to substantially eliminate these noises when he properly secured the jack and jack handle which had been left unsecured in the trunk of the vehicle. The plaintiffs' expert, Joseph Credilio, inspected the vehicle just prior to the trial in *780 November, 1982. Credilio found the vehicle to be in good condition and stated that the noise could be eliminated for approximately $500.00.
In addition to Credilio and Meals, two other experts, Richard Brandhurst, Service Manager of Clearview Dodge, and James McCann, former Chrysler District Manager, testified regarding their inspections of the vehicle. All four experts inspected the vehicle in much the same manner, including a visual canvass of the vehicle and a test drive. Each expert reached essentially the same conclusion: with the windows down and the radio off, a minimal whine-sounding noise could be detected in the rear of the vehicle. Elimination of the noise would require an adjustment or, possibly, replacement of the deferential at a cost of up to $500.00.
The vehicle was essentially in good condition and at the time of trial had approximately 6,000 miles on it.
During trial of this matter testimony and documentary evidence reflected that the three major complaints of noise were acted upon by the dealership by service and replacement. On December 13, 1977, with 793 miles on the car, the ring gear and pinion in the rear end were replaced. On February 23, 1978, with 1240 miles, a rear end backlash adjustment was made. Further, on March 28, 1978, with only 1560 miles on the car the carrier bearings were replaced. Three experts testified at trial as to the possible cause of the plaintiffs' major complaints and the remedy of those complaints. Richard Brandhurst stated, "Several reasons, 50 reasons why, you know, it could be so many". This was in answer to any other reason for the noise in the rear end other than the ring gear and pinion. Expert witness James McCann described the noise as follows. "The Whine in the rear axle from the pitch and the sound of the whine, I would have thought it to be a mismatched ring gear and pinion in the rear end". McCann in answer to what would be the source of the rear end noise answered, "Normally it would be as I mentioned, improper machining that would take place at the assembly factory or perhaps if the rear end had been worked on before, it could have been from an improper adjustment."
The expert called on behalf of Chrysler, J.T. Meals, described the source of the noise and its remedy: "Based upon which I have experienced in the car, and the mileage on the car, would indicate that the ring gear and pinion gear assembly would have to be replaced.
Lutie Wheat, was called as a plaintiffs' witness to describe the noises she heard when riding in the car. She described the noise as, "It was a most annoying noise. I would venture to say, well, I told them on that occasion I would be afraid to ride in the car."
Furthermore, she stated that it had been several years since she has last ridden in the car, and when asked how she would describe her feelings when hearing the noises, she stated, "I would have preferred to go in my own car from then on."
The three experts who testified at trial and who had inspected the vehicle stated there were no signs of owner abuse, neglect or misuse.
In order to maintain an action of redhibition, the plaintiffs must prove that Clearview sold the car to them, and that the vehicle contained a "redhibitory defect." A redhibitory defect entitling the buyer to rescind the sale is some non-apparent vice existing before the sale, in the thing sold, which renders it useless or its use so imperfect that the buyer would not have bought it if he had known of the defect. The buyer may prove the existence of a redhibitory defect before the sale by direct or circumstantial evidence giving rise to a reasonable inference that the defect existed at the time of the sale. LSA-C.C. arts. 2520, 2521, 2530; Rey v. Cuccia, 298 So. 2d 840 (La.1974).
In the present case, the trial court found that the defects were either minor or easily repairable. The trial court had sufficient evidence before it to justify these conclusions from both lay and expert testimony. *781 Our review of the record does not indicate that these conclusions are clearly wrong. Accordingly, we will not disturb the trial court's judgment. Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978).
The trial court clearly found that Chrysler was not answerable to the plaintiffs and that the only problems experienced by the plaintiffs were the responsibility of and caused by Clearview. The court's finding that $500.00 to remedy the defect and repair the vehicle was in effect a reduction in the purchase price which would adequately compensate the plaintiffs for their inconvenience.
LSA-C.C. art. 2543 authorizes the court to limit plaintiffs' recovery to a reduction in price if the evidence had warranted the lesser remedy. We find no error in this regard.
C.C. art. 2543 states:
"Art. 2543. The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibitory action. But in a redhibitory suit, the judge may decree merely a reduction of the price."
Mr. Credilio's estimated cost of repair figure ($500.00) was used by the court as a basis for his damage award and is supported by the evidence.
James McCann, former District Manager for Chrysler, called as a witness by the plaintiffs, testified that the alleged noise complained of by the plaintiffs was easily remedied. He stated that at low mileage (less than 1500 miles), the problem could be remedied by an adjustment or, at most, a part replacement by a competent servicing dealership. The trial court's award of $500.00 was a reduction in the purchase price.
Plaintiffs argue that the trial court improperly excluded from evidence plaintiffs' Exhibits P-34 and P-35 (i.e. copies of warranty repair orders). The trial court refused to accept the documents into evidence because the custodian of business records for Clearview, Kirk Tracey, could not identify the documents as part of the business records of Clearview. Despite the court's refusal to allow introduction of these documents, plaintiffs were able to introduce the information contained in the repair order through the testimony of Mr. Tracey.
The trial court's exclusion of the unauthenticated proffered documents was at most, harmless error. Notwithstanding this conclusion, we have reviewed the testimony and documentary evidence and find no justification for reversal.
After hearing the testimony and reviewing the evidence, the trial court correctly concluded that this case did not merit a rescission of the sale. The reasons for the court's finding are amply supported in the record. Four experts testified that the vehicle contained no serious defects other than a slight noise and was in good condition. The court concluded that the noise problem in the vehicle was the responsibility of the selling dealer. The vehicle contained no serious defects and it was suited for its intended purpose. Accordingly, the court concluded the only damages awardable to the plaintiffs was a reduction in the purchase price necessary for repairs to the rear end of the vehicle.
For the plaintiffs to prevail in a redhibition action they must establish:
(1) That the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed he would not have made the purchase had he known of the defects;
(2) That the defects existed at the time of the purchase, but were neither known or apparent to him; and
(3) The seller would not or could not correct the defect when given an opportunity to do so.
La.Civil Code Article 2520.
In every redhibition action, if the evidence establishes only a partial failure of consideration, the court has the power and duty to decree a recovery in quanti minoris, i.e., a reduction of the purchase price. La.Civil Code Article 2543; Ingersoll v. Star-Chrysler, Inc., 234 So. 2d 85, 87 (La.App. 4th Cir.1970).
We hold that the trial court did not abuse his discretion in finding that the nature of the problems did not amount to a redhibitory *782 defect. It is equally as clear in this case that the trial court did not abuse its discretion in finding that none of the complaints alleged, either separately or collectively, constituted a redhibitory defect giving rise to a rescission of the sale.
The final issue to be resolved is the refusal of the trial court to allow plaintiffs attorney fees. We hold Clearview responsible for a reduction in the purchase price, however, not liable to the plaintiffs for attorney fees.
The evidence in the record does not support a finding that Clearview had actual knowledge of any defect at the time of the sale. A seller who did not have knowledge of a defect when the sale took place is considered to have been in good faith and, hence, is only liable for the return of the purchase price and expenses of the sale, and preservation of the thing or a reduction in the purchase price. LSA.C.C. art. 2531. Attorney fees in an action in redhibition are awarded only when the seller knew of the defect and omitted to declare it. LSA.C.C. art. 2545.
Therefore, we find that the trial court did not commit error in refusing to grant attorney fees.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625837/ | 464 So. 2d 1203 (1984)
Marguerite Petitjean BASSETT, Appellant,
v.
Harry Hood BASSETT, Appellee.
No. 83-1997.
District Court of Appeal of Florida, Third District.
October 2, 1984.
On Rehearing February 12, 1985.
*1204 Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, Paul Louis and John Zavertnik, Miami, for appellant.
Steel, Hector & Davis and Talbot D'Alemberte and Clay Craig, Miami, for appellee.
Before SCHWARTZ, C.J., and BARKDULL and DANIEL S. PEARSON, JJ.
SCHWARTZ, Chief Judge.
Ms. Bassett appeals from the denial of her motion for upward modification of the alimony provision of an agreement incorporated into a final decree of divorce rendered in 1955. The order was founded on the trial court's determination, reached after taking testimony concerning the surrounding circumstances and the parties' intentions when it was executed, that the agreement embodied a relinquishment of Ms. Bassett's statutory right to modification. We reverse because of the absence of a clear waiver, by express language or necessary implication from the document itself, which we conclude is required as a matter of law to effect that result.
The difficult question before us concerns the generally familiar problem of the tension between a governmentally mandated right, on the one hand, and the attempt of individuals to regulate their own affairs, on the other. In resolving that issue in the present context, we are strongly influenced by the fact that the right involved that is, the one to modification of an existing alimony award in the light of changing circumstances has been established by the legislature in the broadest and most compelling terms. Section 61.14, Florida Statutes (1981), which has been in effect in virtually the identical form since the mid-1930's, provides:
(1) When a husband and wife have entered or hereafter enter into an agreement for payments for, or instead of, support, maintenance or alimony, whether in connection with an action for divorce or separate maintenance or with any voluntary property settlement or when a husband is required by court order to make any payments to his wife, and the circumstances of the parties or the financial ability of the husband has changed since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application or in which *1205 the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance or alimony, and the court has jurisdiction to make orders as equity requires with due regard to the changed circumstances and the financial ability of the husband, decreasing or increasing or confirming the amount of separate support, maintenance or alimony provided for in the agreement or order.
* * * * * *
(3) This section is declaratory of existing public policy and laws of this state which are hereby confirmed in accordance with the provisions hereof. It is the duty of the circuit courts to construe liberally the provisions hereof to effect the purposes hereof. [emphasis supplied.]
While it is firmly established in Florida that the availability of statutory modification is indeed subject to being waived, Lee v. Lee, 157 Fla. 439, 26 So. 2d 177 (1946); Stebbins v. Stebbins, 435 So. 2d 383 (Fla. 5th DCA 1983); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981); Turner v. Turner, 383 So. 2d 700 (Fla. 4th DCA 1980), pet. for rev. denied, 392 So. 2d 1381 (Fla. 1980), the legal requirements for its accomplishment have not previously been articulated. In undertaking that task, as is necessary to resolve the present controversy, we conclude that the force of the statutory admonition dictates that an effective waiver of the right to modification may be deemed to arise only when it is stated either in express terms or through an interpretation of the agreement as a whole which can fairly lead to no other conclusion. This, or a close variation, is the rule which has been adopted as to this precise issue in states which, like ours, are willing to recognize the validity of such a waiver in appropriate circumstances.[1] See Garcia v. Garcia, 232 Ga. 869, 209 S.E.2d 201 (1974); McClain v. McClain, 241 Ga. 422, 246 S.E.2d 187 (1978); Varn v. Varn, 242 Ga. 309, 248 S.E.2d 667 (1978);[2]Dull v. Dull, 73 Ill. App. 3d 1015, 29 Ill. Dec. 864, 392 N.E.2d 421 (1979). It is also the principle applied to analytically indistinguishable situations which involve alleged contractual waivers of other statutorily created marital rights. Thus, in the leading case of Girard v. Girard, 29 N.M. 189, 221 P. 801 (1923), the court said, in rejecting the contention that a separation agreement waived the wife's statutory right of inheritance:
We set off to consider such contract with the well-established rule of construction in mind that, in instances of this kind, where it is sought to deprive either husband or wife of property rights growing out of the marital relation, courts will go no further than the language of the contract extends; they will not come to the aid of such contracts so as to deprive either spouse of such rights unless there is a clear and unmistakable intention to barter them away, and, to reach such a conclusion, the contract must not be of doubtful interpretation, but must, by express terms or by necessary implication, clearly so provide. 30 C.J. 646; Jones v. Lamont, 118 Cal. 499, 50 P. 766, 62 Am. St. Rep. 251; In re Peet's Estate, 79 Iowa, 185, 44 N.W. 354; Baughman v. Baughman, 283 Ill. 55, 119 N.E. 49, Ann.Cas. 1918E, 895; Richardson v. De Giverville, 107 Mo. 422, 17 S.W. 974, 29 Am. St. Rep. 426.
Necessary implication, in the sense that it is here used, means so strong a probability of intention that an intention to the contrary or otherwise than that imputed to appellant cannot be reasonably supposed.
221 P. at 803. Accord, In re McNutt's Estate, 36 Cal. App. 2d 542, 98 P.2d 253 (1940); see In re Colaci's Estate, 288 N.Y. 158, 42 N.E.2d 466 (1942); Application of Curran, 274 A.D. 250, 80 N.Y.S.2d 421 (1948).
*1206 It is clear that the lengthy, diffuse, and, on the present issue, wholly inconclusive agreement before us fails completely to meet this test. The mass of boiler plate language[3] upon which the husband relies,[4]*1207 does no more than express an integration and finalization of the Bassetts' agreement to terminate their marriage and resolve its then-existing financial ramifications. It did not certainly not with the requisite clarity accomplish the quite different result of ousting the court of its mandated authority to consider their future situation in the light of the changes effected by advancing years, in this case, by almost thirty of them. See Wolfe v. Wolfe, 424 So. 2d 32, n. 1 (Fla. 4th DCA 1982) ("in such agreements between spouses, if the parties desire that the wife be paid alimony without the payments being modifiable, they should express it.")
This holding is supported by comparing the amorphous terms of the instant agreement with the definite ones in the Florida cases which have found a waiver of modification. In this regard, the supreme court decision in Lee is undoubtedly the most significant. The husband strongly contends and the trial court agreed that the fact that paragraph 32 of the Bassett agreement[5] is identical to a portion of the final decree in Lee requires affirmance. We think otherwise. In our view, the significant factor in the Lee agreement was the provision for a sliding scale of alimony, which included a maximum amount, related to any increments in the husband's future income. Thus, Stephenson v. Stephenson, 408 So. 2d 730 (Fla. 1st DCA 1982), states that
[i]n Lee, the parties agreed the husband would, "during his life" pay alimony based upon a complicated schedule which varied with the husband's ability to produce income. Based on the entirety of the circumstances, the court noted the only logical construction of the stipulated settlement was that the parties had "forever settled" the amount the wife would receive. [Emphasis supplied.]
408 So.2d at 731. See also Turner v. Turner, supra. The Bassett agreement contains no equivalent to the thus-decisive aspect of Lee.[6] The generalized language which remains, even including paragraph 32, is no more than what the Illinois court in Dull, supra, accurately characterized as "precatory only," 392 N.E.2d at 424, and therefore insufficient to preclude modification. Compare also Eddings v. Eddings, 230 Ga. 743, 199 S.E.2d 255 (1973) (cited in Turner; totality of language sufficient to indicate waiver) with McClain v. McClain, supra (terms insufficient for valid waiver).
The court of appeal cases reveal the insufficiency of the agreement even more *1208 clearly. Thus, in Stebbins, the agreement provided:
The parties agree that neither shall file any modification proceedings as to alimony or support matters herein based on an increase of the income of either party.
435 So.2d at 384. In Turner, the language was as follows:
It is the intent of the parties that each shall waive, and each does hereby waive, any right to apply for an increase or decrease in the permanent alimony provided by this Agreement, each intending to establish irrevocably as the alimony which the Husband shall pay to the Wife those payments and transfers set forth in this Agreement.
383 So.2d at 703. In Kilpatrick v. McLouth, 392 So. 2d 985 (Fla. 5th DCA 1981), the court observed:
The agreement, which provided for an alimony award, specifically provided that the agreement was to be non-modifiable and that the wife waived or released any right to alimony modification.
392 So.2d at 986. In Jaffee, the parties agreed:
The parties acknowledge that the Wife is a trained registered nurse with supervisory experience, and in the event that the Wife should resume her nursing career in order to supplement her income, such resumption of work by the Wife shall not be the basis for the Husband to seek a reduction in alimony due to the Wife. [emphasis supplied.]
394 So.2d at 444. And in Muss v. Muss, 390 So. 2d 415 (Fla. 3d DCA 1980), this court held that the following provision "conclusively," 390 So.2d at 417, waived the right to modification:
The parties agree that neither party may apply to the court for a modification of any such judgment or decree into which the provisions of this agreement shall be incorporated, with respect to alimony or support provisions, whether pursuant to § 1170 of the Civil Practice Act or any other provision or authority. [emphasis supplied][7]
390 So.2d at 416. The Bassetts' failure to indicate in any manner approaching that emphatically set out in all of these cases precludes acceptance of the husband's present position.[8]
For this reason, the order under review is reversed and the cause remanded for determination of the appellant's motion for modification on its merits.[9]
Reversed.
*1209 BARKDULL, Judge dissenting.
I respectfully dissent. In the order under review the following is found:
"Petitioner/wife and respondent/husband, freely and willingly entered into a Marital Settlement Agreement (Agreement) on December 6, 1955. The purpose of the Agreement was to settle all rights and duties of the parties and to effect a permanent division between them in contemplation of a Final Decree of divorce after nine years of marriage."
* * * * * *
"In Lee v. Lee, 157 Fla. 439, 26 So. 2d 177 (1946), the only decision of the Supreme Court of Florida existing in 1955 (the time of the agreement between the parties to this case) which addressed the issue of waiver of the statutory right to modification, a final decree of divorce was entered which incorporated an earlier separation agreement in accordance with its terms. Thereafter, the former wife filed a petition for modification of the final decree under Fla. Stat. § 65.15, a predecessor of current Section 61.14, seeking payments greater than those provided for in the separation agreement. The trial court denied the petition. The Supreme Court, construing the separation agreement incorporated into the divorce decree, held that the wife was estopped from claiming any relief on her own behalf.[*]
With the exception of the names of the parties, Paragraph 32 of the Agreement is identical to the provision construed by the Supreme Court of Florida in Lee v. Lee, 157 Fla. 439, 28 26 So. 2d 177 (1946)."
* * * * * *
"The intent of the parties as demonstrated by this provision and multiple other provisions of the agreement was to establish as a final settlement between the parties the amounts provided therein. See paragraphs F, 16, 23, 26, 28, 30, 32 and 35. The parties intended that their settlement contract be a final determination of their rights and interests. In paragraph 28 of the Agreement, the parties expressly release and discharge one another from any and all claims and causes of action. Paragraph 30 includes another release. In her testimony, Mrs. Bassett acknowledged that the purpose of a release is to `let somebody free of certain promises... .' (Tr-158), and admits that in paragraph 26 of the Agreement all of her `claims' against Mr. Bassett are released (Id.).
Paragraph F of the Agreement indicates the understanding of the parties that that payments and trust provisions which the wife was to receive were accepted by her and were made by respondent in full and complete discharge and satisfaction of any and all claims she might have against him. Paragraph 16 declares the wife's acceptance of the trust and the monthly `alimony' in `full and complete discharge, settlement and satisfaction of any and all claims of the wife for her support and maintenance now or in the future ... .'(Tr-179. Emphasis added). The Lee decision is precedent for the binding effect of this contractual provision and the waiver thereby of the statutory right to seek modification. See Jaffee, 394 So.2d at 446, Turner, 383 So.2d at 704.
Mrs. Bassett's execution of the multiple waivers contained in the Agreement was knowing and voluntary. She acknowledges that she read each and every paragraph of the Marital Settlement Agreement, that several attorneys explained them to her (Tr-153; 1955 Tr-9; see also Dunn-25-28, Tr-181, 182), and that she understood the Agreement to be a `final settlement' of her financial arrangements with Mr. Bassett (1955 Tr-12)."
* * * * * *
"The words of the agreement clearly provide for a waiver and the testimony of the witnesses who demonstrated any competence on this issue support these clear terms as the intention of the parties. *1210 It is difficult to imagine why the parties would use the Lee v. Lee language if they did not want a Lee v. Lee result.
Regardless of the burden of proof which is applied to this case, it has been met by respondent. This court finds that Mrs. Bassett voluntarily waived any right to modification which she might have had under the Florida Statutes."
[*] The Court did allow modification of the child support obligation stating that a contract cannot impair the obligation of a father to support his children. Id. at 179. Child support is not at issue in this action.
Counsel for Mr. Bassett at the time of the execution of the agreement testified he included the Lee language for the purpose of no future modification and that he so told this to counsel for Mrs. Bassett at the time of execution.[1] I see no reason to disturb the trial court's finding and denial of relief and I would therefore affirm.
OPINION ON REHEARING
BARKDULL, Judge.
By this appeal we are called upon to review an order denying a petition for modification of a final decree of divorce which was entered on December 7, 1955 and which incorporated therein and made a part thereof for all purposes, with the same force and effect as if set forth in haec verba herein, an agreement of the parties which among other things waived the right to any modification. The order reads as follows:
"This cause came for hearing on the Petitioner's motion for modification of a final decree. The respondent has answered, interposing affirmative defenses and the Court set a hearing for determination of the issues relating to the right of the Petitioner to modification. After hearing testimony and argument, the Court is prepared to rule.
Petitioner/wife and respondent/husband, freely and willingly entered into a Marital Settlement Agreement (Agreement) on December 6, 1955. The purpose of the Agreement was to settle all rights and duties of the parties and to effect a permanent division between them in contemplation of a Final Decree of divorce after nine years of marriage. The final decree of Divorce, entered December 7, 1955, incorporated the Agreement which contained the following paragraph:
32. In the event of any Final Decree of Divorce being entered in the Pending Action, such Decree shall include the following Language: "With the exception of the terms, conditions, covenants, agreements and stipulations, as hereinabove set out, the Plaintiff is hereby denied any rights of alimony, attorney's fees or costs of this suit, as well as any rights of property, whether same be real or personal, in and to the separate estate of the Defendant, and the Plaintiff, MARGUERITE PETITJEAN BASSETT, and the Defendant, HARRY HOOD BASSETT, are hereby permanently enjoined from claiming any rights of property, or any other claims, demands, causes of action, inheritance or descent that each may have or have had against the other by virtue of the marriage between the parties herein divorced."
In November 1980, the wife petitioned for modification of the divorce decree pursuant to Section 61.14, Florida Statutes, claiming a substantial change in her financial circumstances, an increase in her living expenses and an increase in the husband's financial resources.
The husband answered the petition and raised as an affirmative defense that the wife had, by the terms of the Agreement, waived any rights she might otherwise have had for modification. Furthermore, *1211 the Agreement was characterized as a property settlement and not subject to modification.
The matter is before the court solely on the claim for modification and the defenses and legal questions raised in this action.
Florida courts have consistently held that the parties to a divorce may waive a statutory right to modification of alimony, if such a right exists. See Lee v. Lee, 157 Fla. 439, 26 So. 2d 177 (1946); Turner v. Turner, 383 So. 2d 700 (Fla. 4th DCA), pet. for rev. den., 392 So. 2d 1381 (Fla. 1980); Jaffee v. Jaffee, 394 So. 2d 443 (3d DCA 1981); Muss v. Muss, 390 So. 2d 415 (Fla. 3d DCA 1980); Kilpatrick v. McLouth, 392 So. 2d 985 (Fla. 5th DCA 1981). The waiver may be intentional or implied and is to be determined based upon the totality of the circumstances and the language of any stipulated settlement. See Stephenson v. Stephenson, 408 So. 2d 730, 731 (Fla. 1st DCA 1982). Such a waiver does not violate the public policy of the state. Turner, 383 So.2d at 703; Muss, 390 So.2d at 417.
In Lee v. Lee, 157 Fla. 439, 26 So. 2d 177 (1946), the only decision of the Supreme Court of Florida existing in 1955 (the time of the agreement between the parties to this case) which addressed the issue of waiver of the statutory right to modification, a final decree of divorce was entered which incorporated an earlier separation agreement in accordance with its terms. Thereafter, the former wife filed a petition for modification of the final decree under Fla. Stat. § 65.15, a predecessor of current Section 61.14, seeking payments greater than those provided for in the separation agreement. The trial court denied the petition. The Supreme Court, construing the separation agreement incorporated into the divorce decree, held that the wife was estopped from claiming any relief on her own behalf.[*]
With the exception of the names of the parties, Paragraph 32 of the Agreement is identical to the provision construed by the Supreme Court of Florida in Lee v. Lee, 157 Fla. 439, 28 So. 2d 177 (1946).
LEE v. LEE BASSETT AGREEMENT, ¶ 32
"With the exception of the terms, "With the exception of the terms,
conditions, covenants, agreement conditions, covenants, agreements and
and stipulations, as hereinabove stipulations, as hereinabove set out,
set out, the plaintiff is hereby the Plaintiff is hereby denied any
denied any rights of alimony, rights of alimony, attorney's fees or
attorney's fees or costs of this costs of this suit, as well as any
suit, as well as any rights of rights of property, whether same be
property, whether same be real or real or personal, in and to the
personal, in and to the separate separate estate of the Defendant, and
estate of the Defendant, and the the Plaintiff, MARGUERITE PETITJEAN
plaintiff, Betty Lee, and the BASSETT, and the Defendant, HARRY HOOD
defendant Manfred B. Lee, are BASSETT, are hereby permanently
hereby permanently enjoined from enjoined from claiming any rights of
claiming any rights of property or property or any other claims, demands,
any other claims, demands, causes causes of action, inheritance or
of actions, inheritance or descent descent that each may have or have had
that each may have or have had against the other by virtue of the
against the other by virtue of marriage between the parties herein
the marriage between the parties divorced."
herein divorced."
The intent of the parties as demonstrated by this provision and multiple other provisions of the Agreement was to establish as a final settlement between the parties the amounts provided therein. See paragraphs F, 16, 23, 26, 28, 30, 32 and 35. The parties intended that their settlement contract be a final determination *1212 of their rights and interests. In paragraph 28 of the Agreement, the parties expressly release and discharge one another from any and all claims and causes of action. Paragraph 30 includes another release. In her testimony, Mrs. Bassett acknowledged that the purpose of a release is to "let somebody free of certain promises... ." (Tr-158), and admits that in paragraph 26 of the Agreement all of her "claims" against Mr. Bassett are released (Id.).
Paragraph F of the Agreement indicates the understanding of the parties that payments and trust provisions which the wife was to receive were accepted by her and were made by respondent in full and complete discharge and satisfaction of any and all claims she might have against him. Paragraph 16 declares the wife's acceptance of the trust and the monthly "alimony" in "full and complete discharge, settlement and satisfaction of any and all claims of the wife for her support and maintenance now or in the future... ." (Tr-179. Emphasis added).
The Lee decision is precedent for the binding effect of this contractual provision and the waiver thereby of the statutory right to seek modification. See Jaffee, 394 So.2d at 446; Turner, 383 So.2d at 704.
Mrs. Bassett's execution of the multiple waivers contained in the Agreement was knowing and voluntary. She acknowledges that she read each and every paragraph of the Marital Settlement Agreement, that several attorneys explained them to her (Tr-153; 1955 Tr-9; see also Dunn-25-28, Tr-181, 182), and that she understood the Agreement to be a "final settlement" of her financial arrangements with Mr. Bassett (1955 Tr-122). Every effort was made to assure her understanding (Dunn, 5/26/83). Judge J. Fritz Gordon questioned Mrs. Bassett extensively regarding the Agreement at the time the divorce decree was entered:
Q. Do you understand that this is a final settlement of your financial arrangements with Mr. Bassett?
A. I understand.
Q. And are you satisfied with that?
A. Yes.
Q. Do you have knowledge of all his finances in accepting this?
A. Yes.
Q. You have full knowledge of his financial conditions?
A. Yes.
Q. And with that full knowledge you have agreed to accept what is to be given to you under the terms of the contract and a full and final settlement of any claims that you might have against him
A. I do.
Q. (Continuing) is that correct?
A. Yes.
(1955 Tr-12)
Petitioner has adduced no evidence to the effect that her execution of the waiver was involuntary. A self-serving statement of petitioner that she believed that she could come back to court and get modification while giving up all of her other rights against Mr. Bassett (Tr-136), was made, and one of her attorneys, who, although he acknowledged the meaning of the words of waiver and release in the agreement, concluded that no matter what the Agreement says, it can be modified (Dunn, 5/26/83). This conclusion contradicts the holdings in Lee v. Lee, supra; Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3rd DCA 1981); Kilpatrick v. McLouth, 392 So. 2d 985 (Fla. 5th DCA 1981); Muss v. Muss, 390 So. 2d 415 (Fla. 3rd DCA 1980); and Turner v. Turner, 383 So. 2d 700 (Fla. 4th DCA 1980); all held waiver of modification valid. Counsel who conducted Mrs. Bassett's negotiations and made her decisions concerning the Agreement has no independent recollection of that document (Tr-88-95) or whether a waiver was intended. Never was the voluntariness of the waiver questioned.
The words of the agreement clearly provide for a waiver and the testimony of *1213 the witnesses who demonstrated any competence on this issue support these clear terms as the intention of the parties. It is difficult to imagine why the parties would use the Lee v. Lee language if they did not want a Lee v. Lee result.
Regardless of the burden of proof which is applied to this case, it has been met by respondent. This court finds that Mrs. Bassett voluntarily waived any right to modification which she might have had under the Florida Statutes.
It is, therefore,
ORDERED, on the basis of this opinion and the evidence presented at final hearing, that the wife's Petition for Modification of Final Decree of Divorce is hereby DENIED. The parties shall bear their own legal expenses and costs, including attorney's fees."
The trial judge should be affirmed in his ruling. First, the agreement is unambiguous. It, clearly under the law as it existed at the time it was executed,[1] provided for a waiver of any right to modify. Lee v. Lee, 157 Fla. 439, 26 So. 2d 177 (1946). The Lee decision certainly should control construction of this agreement. Not only are its terms incorporated verbatim in the agreement but the appellee herein set up a trust of $250,000, pursuant to the agreement, which guaranteed appellant at least $10,000 per year (which trust today is probably returning in the neighborhood of $25,000 a year).[2] This is similar to the automatic increases in the Lee agreement based on the husband's increased earnings and the parties were enjoined from seeking modification in the same language as in Lee.[3] Second, if the agreement was in need of clarification the evidence clearly supported an interpretation providing for a waiver of modification rights. The parties for over 25 years treated it as nonmodifiable. Blackhawk Heating & Plumbing Co., Inc., v. Data Lease Financial Corp., 302 So. 2d 404 (Fla. 1974); Shouse v. Doane, 39 Fla. 95, 21 So. 807 (1897); Bay Management, Inc., v. Beau Monde, Inc., 366 So. 2d 788 (Fla. 2d DCA 1978). Counsel for Mr. Bassett at the time of the execution of the agreement testified he included the Lee language for the purpose of no future modification and that he so told this to counsel for Mrs. Bassett at the time of execution.[4]*1214 We see no reason to disturb the trial court's finding and denial of relief and we therefore affirm.
Affirmed.
SCHWARTZ, Chief Judge (dissenting).
I respectfully adhere to my view, as expressed in the original majority opinion in this cause, that the judgment below should be reversed.
NOTES
[1] Contra, inter alia, the Rhode Island and Missouri cases cited in Turner, supra, at 383 So. 2d 704.
[2] Georgia cases were cited with approval as to the waivability holding generally in Turner, supra, at 383 So.2d 703-04.
[3] These provisions are as follows:
F. The Wife desires to receive and accept the trust provisions and the payments hereinafter set forth to be made by the Husband in full and complete discharge, settlement and satisfaction of any and all claims of the Wife for her support and maintenance, and for the support, maintenance and education of the Children, and in full and complete discharge, settlement and satisfaction of any and all other claims of the Wife against the Husband, and the Wife hereby agrees to accept the conditions for the custody of the Children determined between the parties, as hereinafter set forth, and the Husband desires and agrees to create the trust and to make the payments to the Wife hereinafter set forth for the support and maintenance of the Wife and of the Children and the Husband hereby agrees to accept the conditions for the custody of the Children determined between the parties, as hereinafter set forth.
* * * * * *
4. The parties agree that in the event a decree of divorce is rendered in the Pending Action, the provisions hereinafter set forth with respect to alimony, support of the Children and custody of the Children shall be the provisions of the decree with respect thereto, all subject however to the approval of the Court. The parties agree, however, that neither of them, in connection with the making and entry of said decree, shall make application for alimony, support of the Children and custody of the Children other than or different from those provided herein.
* * * * * *
16. The Wife agrees to accept the payments of the Wife's Alimony Trust and the Monthly Alimony hereinbefore set forth to be paid by the Husband in full and complete discharge, settlement and satisfaction of any and all claims of the Wife for her support and maintenance now or in the future or of any other claim that she may have to date. In addition, the Wife agrees to accept payment of the Children's Support Monies and of the monies specified in this agreement for the maintenance, support and education of the Children, in full and complete discharge, settlement and satisfaction of any claims for the maintenance, support and education of the Children. The Wife agrees that the payments provided in this agreement to be made by the Husband for the maintenance, support and education of the Children are reasonable and adequate in all respects.
* * * * * *
23. The Wife agrees to release, and does hereby release, any and all claims of the Wife to or upon the property of the Husband, whether real or personal and whether now or hereafter acquired, including any right of dower, homestead or inheritance, to the end that the Husband shall have free and unrestricted right to dispose of his property, now or hereafter acquired, free from any claim or demand of the Wife, and so that his estate and all income therefrom derived or to be derived shall go and belong to the person or persons who become entitled thereto by Will or by devise, bequest, intestacy, administration or otherwise, as if the Wife had died during the lifetime of the Husband, and, without in any manner limiting the foregoing, the Wife expressly relinquishes any and all rights in the estate of the Husband, and expressly relinquishes any and all right of election to take any share of the estate of the Husband as in intestacy and any and all other right and interest in any real or personal property of which the Husband may die seized or possessed, and the Wife renounces and covenants to renounce, any right of administration upon the estate of the Husband, if and as required by the laws or practice of any jurisdiction whatsoever, except that nothing in this paragraph contained shall affect the Husband's obligation under paragraph 5(a) and 11(b) of this agreement.
* * * * * *
26. The Wife hereby relinquishes, releases quitclaims, sells, transfers, sets over and assigns to the Husband any and all claim, right, title and interest whatsoever which she now has or may hereafter have, or may claim to have, whether at law or in equity, in any funds, assets or property, real or personal, now owned by or standing in the name of or hereafter acquired by or on behalf of the Husband, either alone or with others, including but not by way of limitation any and all right, claim, title and interest the Wife now has or may hereafter acquire in any property deemed to be community property by reason of any law of any state or country of the world, or in which the Wife may have or be deemed or construed to have any lien or trust or other interest.
28. Except for the obligations, promises and agreements herein set forth and to be performed by the parties hereto, which are hereby expressly reserved, each of the parties hereto hereby for himself and herself, and for his or her legal representatives, forever releases and discharges the other of them and his or her heirs and legal representatives from any and all debts, sums of money, accounts, contracts, claims, cause and causes of action, suits, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, and demands whatsoever, in law or in equity, which each of them had, now has or hereafter can, shall or may have by reason of any matter from the beginning of the world to the execution of this agreement.
* * * * * *
30. (A) The Wife shall and will hold the Husband free and harmless from and indemnified against all debts, liabilities and obligations, of every kind and nature whatsoever, for necessaries or otherwise, at any time heretofore or after the date of this agreement incurred by her for the benefit of herself or the Children.
* * * * * *
32. In the event of any Final Decree of Divorce being entered in the Pending Action, such Decree shall include the following language:
"With the exception of the terms, conditions, covenants, agreements and stipulations, as hereinabove set out, the Plaintiff is hereby denied any rights of alimony, attorney's fees or costs of this suit, as well as any rights of property, whether same be real or personal, in and to the separate estate of the Defendant, and the Plaintiff, MARGUERITE PETITJEAN BASSETT, and the Defendant, HARRY HOOD BASSETT, are hereby permanently enjoined from claiming any rights of property, or any other claims, demands, causes of action, inheritance or descent that each may have or have had against the other by virtue of the marriage between the parties herein divorced."
* * * * * *
35. No modification, rescission or amendment to this agreement shall be effective unless in writing, signed by the parties hereto.
* * * * * *
[4] The wife cites equally unpersuasive contractual indications to the contrary.
[5] See note 3, supra.
[6] We take some comfort from the fact that if the supreme court, which obviously knows its own institutional will best, disagrees with our analysis of Lee, it may review this decision under Art. V, Section 3(b)(3), Florida Constitution (1980); Fla.R.App.P. 9.030(a)(2)(A)(iv).
[7] The weakness of the appellee's position is highlighted by his unaccountable insistence at oral argument that this provision is equivalent to paragraph 4 of the present agreement, note 3, supra, which says only that neither party shall make application for "alimony ... other than ... provided herein," and makes no reference whatever to "modification" as is specifically contained in the Muss agreement.
[8] As in the conceptually similar case of Chippas v. Midland Ins. Co., 456 So. 2d 495, n. 5 (Fla. 3d DCA 1984), our determination that the terms of the agreement itself were insufficient under the appropriate standard of construction to effect a valid waiver leads to the concomitant conclusion that the trial court improperly received extrinsic evidence concerning the intention of the parties on the critical point. Cases cited, Chippas, supra, n. 5. Parol testimony is inadmissible to correct the use of legally insufficient or defective language or to rewrite the contract by supplying verbiage the parties did not themselves choose to include. Carson v. Palmer, 139 Fla. 570, 190 So. 720 (1939); Crown Management Corp. v. Goodman, 452 So. 2d 49, 52 (Fla. 2d DCA 1984), and cases cited; Ace Electric Supply Co. v. Terra Nova Electric, Inc., 288 So. 2d 544 (Fla. 1973); see generally, Jaffee v. Jaffee, supra, and cases collected at 394 So. 2d 443 (testimony as to intent of husband incompetent "as an attempt to vary the terms of a written document through the insertion of qualifying language which does not appear on its face").
We note, moreover, that, as was also the case in Chippas, the evidence which was adduced indicated only that no one had specifically considered the modification issue one way or the other when the agreement was executed. It thus could have added nothing to the consideration or resolution of the question before us, which is properly confined to the sufficiency and effect of the instrument itself. See also Mohasco Industries, Inc. v. Maxwell Co., 425 F.2d 436 (5th Cir.1970).
[9] The agreement is plainly not a "true" property settlement agreement which would be non-modifiable on that basis. E.g., Pujals v. Pujals, 414 So. 2d 228 (Fla. 3d DCA 1982); Wolfe v. Wolfe, 424 So. 2d 32 (Fla. 4th DCA 1982); compare, Shaw v. Shaw, 448 So. 2d 631 (Fla. 4th DCA 1984), and cases cited.
[1] "Q. If this was based on Lee, as was mentioned, your recollection is, that you specifically mentioned that to Mrs. Bassett's attorney. This is from the case of Lee versus Lee. Right?
A. Of course, it is quoted from it. Where did you get this language, or something like that. `It came out of the latest pronouncement of the Florida Supreme Court.'"
[*] The Court did allow modification of the child support obligation stating that a contract cannot impair the obligation of a father to support his children. Id. at 179. Child support is not at issue in this action.
[1] Shavers v. Duval County, 73 So. 2d 684 (Fla. 1954); Southern Crane Rentals, Inc. v. City of Gainesville, 429 So. 2d 771 (Fla. 1st DCA 1983); General Development Corporation v. Catlin, 139 So. 2d 901 (Fla. 3d DCA 1962); Coast Cities Coaches, Inc. v. Whyte, 102 So. 2d 848 (Fla. 3d DCA 1958).
[2] "In the event that such income shall in any calendar year be less than $10,000, the Trustee is directed to pay out of the principal of the trust an amount equal to the difference between such income and $10,000."
[3] LEE v. LEE BASSETT AGREEMENT, ¶ 32
"With the exception of the terms, "With the exception of the terms,
conditions, covenants, agreement conditions, covenants, agreements and
and stipulations, as hereinabove stipulations, as hereinabove set out,
set out, the plaintiff is hereby the Plaintiff is hereby denied any
denied any rights of alimony, rights of alimony, attorney's fees
attorney's fees or costs of this or costs of this suit, as well as any
suit, as well as any rights of rights of property, whether same be
property, whether same be real or real or personal, in and to the
personal, in and to the separate separate estate of the Defendant, and
estate of the Defendant, and the the Plaintiff, MARGUERITE PETITJEAN
plaintiff, Betty Lee, and the BASSETT, and the Defendant, HARRY HOOD
defendant Manfred B. Lee, are BASSETT, are hereby permanently
hereby permanently enjoined from enjoined from claiming any rights of
claiming any rights of property or property or any other claims, demands,
any other claims, demands, causes causes of action, inheritance or
of actions, inheritance or descent descent that each may have or have had
that each may have or have had against the other by virtue of the
against the other by virtue of the marriage between the parties herein
marriage between the parties herein divorced."
divorced."
[4] If this was based on Lee, as was mentioned, your recollection is that you specifically mentioned that to Mrs. Bassett's attorney, `this is from the case of Lee v. Lee', right?
A. Of course it is quoted from it. Where did you get this language, or something like that. `It came out of the latest pronouncement of the Florida Supreme Court.'" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625871/ | 464 So. 2d 1151 (1985)
Ernest Randolph NOBLES
v.
STATE of Mississippi.
No. 55390.
Supreme Court of Mississippi.
February 20, 1985.
*1152 Ronald L. Whittington, Guy, Whittington & Ott, McComb, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
DAN M. LEE, Justice, for the Court:
This is an appeal from the Circuit Court of Pike County wherein the appellant, Ernest Randolph Nobles, was found guilty of the aggravated assault of Bill Bates. Nobles was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections. From his conviction and sentence he brings this appeal and assigns as error the trial court's refusal to grant Instruction D-6 and his assertion that the verdict of the jury was against the overwhelming weight of the evidence.
Bill Bates, the victim, testified that he had known Nobles for three to four years. They met through Nobles' niece with whom Bates had had a child. Bates testified that on Monday, May 9, 1983, he saw Nobles at a gas station so he pulled in to say hello. Bates stated that he had seen Nobles on the Friday before and that they had had a disagreement on that night. The disagreement stemmed from Nobles telling Bates that he would be at a particular location and then failing to show.
Bates testified that when he arrived at the gas station Nobles started complaining to him about Bates' actions on Friday night. Bates stated that Nobles and he began exchanging curses. Nobles then threatened to cut Bates' throat in retaliation for their Friday night disagreement. Nobles took a knife out of his pocket and opened the blade. Bates testified that when he saw Nobles' knife he feared for *1153 his own safety and for that of his two year old son whom he had with him. Bates testified that he told Nobles he was leaving and did not have time to argue. Bates put the child in the car from the driver's side and then felt something running down his face. He looked up and saw Nobles backing away from him with the open knife. Bates then noticed blood running from his face. Bates testified that at that point Nobles threatened to kill him.
After being cut, Bates ran across the street and was given a ride to the hospital. Bates' brother arrived on the scene moments later and took Bates' child home. Bates testified that throughout the incident he was unarmed. He further denied that he was reaching for a weapon at the time he was cut.
Dr. Will K. Austin, an emergency room physician at the Southwest Mississippi Regional Medical Center, testified that when Bates arrived at the hospital he had a severe laceration on his left cheek. The cut extended from Bates' face all the way to the back of his head, completely through the left ear and down to the skull. Bates had major arterial bleeding from several places. Dr. Austin testified that Bates had lost a lot of blood and if the blood loss had continued much longer the situation would have been life threatening. The wound required several hundred stitches to close.
Following Dr. Austin's testimony the state rested.
Darrel Nobles, the defendant's first cousin, was the first witness to testify for the defense. Darrel worked at the service station where the incident occurred. He testified that Nobles was at the gas station when Bates arrived with his son. Bates took the child out of the car and began arguing with Nobles about something that had occurred a few days prior. Bates and Nobles cursed each other and Darrel told them both to leave because their arguing was bad for business. According to Darrel, Bates then put the child in the car and began to feel down the side of his car seat either in the front or the back. As he was doing this, Nobles cut him.
The defendant, Ernest Randolph Nobles, testified in his own defense. Nobles stated that he had seen Bates on the Friday before the incident at the home of his brother-in-law, James Carter. Nobles admitted that he had lied to Bates and told him that he would be at a local cafe but had instead gone to James Carter's house. Nobles stated that Bates came by Carter's house that night cursing and threatening him. According to Nobles, Bates threatened to whip him because he had lied concerning his intended whereabouts.
Nobles testified that on the day of the cutting incident he was at the gas station when Bates arrived. Nobles then "tried to explain I didn't appreciate his (Bates) threats on Friday." The two of them exchanged curses. Nobles testified that Bates then put the child in the car and started to reach for something. Nobles denied that he had drawn his knife before Bates "started reaching" but added "He came up pretty fast so I cut him."
Nobles testified that he thought if he did not use his knife immediately Bates would hurt him. Nobles admitted that he never saw a weapon on Bates and further admitted that he was mistaken when he cut Bates.
James Carter, Nobles' brother-in-law, testified that he was with Nobles at the time of the incident. Carter stated that as they were at the gas station, Bates drove up and Nobles told Bates that Bates had done him wrong. They began exchanging curses. Bates then put the child in the car and "went up under the seat." Bates then "came up real fast" and at that point Nobles cut him. Carter testified that Bates has a violent reputation and a reputation for being armed. Following James Carter's testimony the defense rested.
After considering the testimony and physical evidence the jury returned a verdict of guilty of aggravated assault.
*1154 Nobles' first assignment of error is that he should have been granted Instruction D-6. That instruction reads:
The Court instructs the jury that if you believe from the evidence presented beyond a reasonable doubt that Ernest R. Nobles recklessly caused bodily injury to or that he negligently caused bodily injury to [sic] with a deadly weapon, you may find the defendant, Ernest R., Nobles, guilty of simple assault.
D-6 was refused because the court found it was contrary both to the evidence of the state and that of the defendant. Nobles argues that D-6 was a proper instruction and adequately set forth the criteria necessary to find him guilty of simple assault, a lesser included offense which Nobles argues the jury could properly have found him guilty of.
The applicable statute is § 97-3-7 Miss. Code Ann. (Supp. 1984):
(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical means to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than five hundred dollars ($500) or by imprisonment in the county jail for not more than six (6) months, or both. Provided, however, a person convicted of simple assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.
Nobles' theory is that he negligently determined that cutting Bates was necessary for his own defense. This is an interesting but unpersuasive argument.
The recklessness or negligence contemplated by the statute is in the act itself. It does not refer to the subjective intent of the defendant. Whether Nobles acted in self defense is a question for the jury. Either he did or he didn't. The reckless or negligent belief that he was acting in self defense is contra to the foundation of that defense, i.e., the reasonable belief of imminent bodily harm.
The testimony both for the state and the defense was that Nobles attacked and cut Bates at a time when Bates had his back turned. All of the evidence indicates that Nobles cut Bates neither recklessly nor negligently. The attack was deliberate and premeditated. This Court has repeatedly held that where the evidence does not support the granting of an instruction on a lesser included offense that instruction should not be given. Colburn v. State, 431 So. 2d 1111 (Miss. 1983). In the opinion of this Court the trial judge was correct that this is just such a case. While Nobles may have been reckless or negligent in jumping to the conclusion that his life was in danger, his testimony reflects that when he cut Bates the cutting itself *1155 was not an act of negligence or recklessness.
We note that in a recent case, Lee v. State, No. 55,477 (Miss. decided February 13, 1985) (not yet reported), we reversed Lee's conviction because he was not granted an instruction on the lesser included offense of simple assault. Our decisions are not incompatible. In Lee, the defendant's version of the events warranted such an instruction. As previously discussed, even Nobles' version does not support the requested instruction and a verdict of simple assault would not have been warranted under these facts.
Nobles' second assignment of error is that the verdict of the jury is against the overwhelming weight of the evidence. The standard of review in this Court is that all of the testimony offered by the prosecution, together with the reasonable inferences drawn therefrom must be considered and if that evidence will support a verdict of guilty, the jury's decision will not be overturned. Goldman v. State, 406 So. 2d 816 (Miss. 1981); Mitchell v. State, 402 So. 2d 329 (Miss. 1981).
We are of the opinion that the evidence is more than sufficient to establish that Nobles is guilty of aggravated assault. Not only did he admit to cutting Bates with a knife that had a five to six inch blade, Dr. Austin's testimony established that the wound cut several major arteries and was life threatening had it not been treated. Furthermore, Bates testified that prior to assaulting him, Nobles threatened to kill him. This evidence is sufficient to establish that Nobles purposely caused serious bodily injury to Bates with a deadly weapon. That is all that is required by the statute. We are therefore compelled to affirm Nobles' conviction and sentence.
AFFIRMED.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625876/ | 464 So. 2d 578 (1984)
Ernie Ray HOLLEY, Appellant,
v.
STATE of Florida, Appellee.
No. AL-196.
District Court of Appeal of Florida, First District.
August 17, 1984.
Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
THOMPSON, Judge.
Defendant appeals his judgments and sentences for resisting arrest with violence, grand theft, armed robbery with a firearm, and two counts of aggravated assault with a firearm. Defendant argues that the trial court erred in instructing the jury that an arrestee may never use force to resist an arrest, erred in giving a flight instruction, and erred in imposing consecutive mandatory minimum sentences. We affirm in part and reverse in part.
In accordance with Florida Standard Jury Instruction (Criminal) 3.04(d) (Self-Defense, Justifiable Use of Force), the trial court instructed the jury that "[a] person is never justified in the use of any force to resist an arrest." Id. at page 43. This jury instruction conflicts with Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981), review denied, 412 So. 2d 470 (Fla. 1982), which states that an individual may defend himself against unlawful or excessive force, even when being arrested and the use of this instruction was error. See Allen v. State, 424 So. 2d 101 (Fla. 1st DCA), review denied, 436 So. 2d 97 (Fla. 1983). Unlike in Allen, we cannot say this error was harmless. We reverse defendant's judgment and sentence for resisting arrest with violence. Because trial judges should be able to rely on the standard jury instructions as being a correct statement of the law and in order to resolve the conflict between Rule 3.04(d) and Ivester and Allen, *579 we certify the following question to the Florida Supreme Court as one of great public importance pursuant to Rule 9.030(a)(2)(A)(v), Fla.R.App.P.:
IS FLORIDA STANDARD JURY INSTRUCTION (CRIMINAL) 3.04(d), A CORRECT STATEMENT OF THE LAW IN LIGHT OF IVESTER V. STATE, 398 So. 2d 926 (Fla. 1st DCA 1981), review denied, 412 So. 2d 470 (Fla. 1982) AND ALLEN V. STATE, 424 So. 2d 101 (Fla. 1st DCA), review denied, 436 So. 2d 97 (Fla. 1983)?
The imposition of consecutive mandatory minimum sentences as to the armed robbery and one of the counts for aggravated assault with a firearm (Count III) was error under Palmer v. State, 438 So. 2d 1 (Fla. 1983), which was decided subsequent to the imposition of the sentences herein, because the offenses clearly arose from a single criminal transaction or episode. Accordingly, we amend the three-year mandatory minimum sentence for armed robbery with a firearm (Count V) and the three-year mandatory minimum sentence for aggravated assault with a firearm (Count III) to provide that they be served concurrently, not consecutively.
Defendant's argument on the flight instruction does not warrant discussion and does not require reversal. See Whitfield v. State, 452 So. 2d 548 (Fla. 1984).
Defendant's conviction for resisting arrest with violence is reversed. The issue of the correctness of Florida Standard Jury Instruction (Criminal) 3.04(d) is certified to the Florida Supreme Court. The remaining judgments and sentences, as amended, are affirmed.
SHIVERS and ZEHMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625873/ | 345 S.W.2d 260 (1961)
Stevie Jackson HUNT et al., Petitioners,
v.
G. E. RAMSEY, Jr. et al., Respondents.
No. A-7892.
Supreme Court of Texas.
March 22, 1961.
Rehearing Denied April 26, 1961.
Sonfield & Sonfield, Houston, for petitioners.
Henry Russell, Pecos, for respondents G. E. Ramsey, Jr., and Republic Nat. Bank of Dallas.
*261 Harry G. Dippel and Frank L. Merrill, Fort Worth, and Stubbeman, McRae, Sealy & Laughlin, Durward Goolsby and W. B. Browder, Jr., of above firm, Midland, for respondent Continental Oil Co.
GREENHILL, Justice.
In 1952, G. E. Ramsey and G. E. Ramsey, Jr., brought suit against over 1,000 defendants and obtained a judgment, under plea of limitation, for several thousand acres in Reeves County. The land was, apparently, an old townsite surrounded by many small farm tracts. Most of the defendants, including S. W. Jackson, were cited by publication and did not answer. Judgment was taken against them by default.
The plaintiffs in this suit for an equitable bill of review are the heirs of S. W. Jackson. They seek to recover land previously owned by Jackson, one town lot and one 5-acre farm tract which were a part of the very large tract obtained by the Ramseys. Plaintiffs filed a disclaimer as to all the rest of the land covered by the 1952 judgment.
G. E. Ramsey is dead. Before he died, he conveyed his interest in the property to G. E. Ramsey, Jr. In this bill of review action, the plaintiffs sued only G. E. Ramsey, Jr., the Continental Oil Co. which has an oil and gas lease under the Ramseys, and a Dallas bank which is alleged to have some character of mineral assignment from the Ramseys. The plaintiffs did not make parties any other of the one thousand or so defendants to the 1952 suit. For that reason the trial court sustained pleas in abatement and exceptions to this action, and the plaintiffs' suit was dismissed. That action was affirmed by the Court of Civil Appeals. 334 S.W.2d 549.
In the 1952 trespass to try title action, the Ramseys alleged that they had acquired title by limitation to approximately nine and one-half sections which constitute over 5,000 acres of land. The area included the townsite of Montclair. The Ramseys did not bring suit for particular lots, blocks, or tracts. They alleged that they had acquired title by limitation to the entire tract which was described as Sections 6, 7, 18, 19, and 20 in Block 57; and Sections 1, 12, 13, 24, and the north half of Section 36 in Block 58, in the T. & P. Ry. Co. survey.
In that suit, the Ramseys named some fifteen pages of defendants including S. W. Jackson. Citation was had by publication on most, if not all, of the defendants based on the affidavit of G. E. Ramsey that the residences of the defendants were not known. Of over 1,000 defendants cited, some 40 or 50 filed answers. The judgment in that suit recites: "All other defendants, although all and each had been duly cited and served with citation as required by law, all and each failed to appear or file an answer herein and wholly made default." The judgment also contains another specific finding that "each of the defendants in this cause has been duly cited and served with citation and process as required by law." In the 1952 judgment, some defendants recovered from all other parties, plaintiff and defendant, particular lots in the town, particular farm tracts or other interests in particularly described properties. The judgment recites that the Ramseys recover title to all of the land sued for except the particular lots or tracts awarded to particular defendants. The judgment recites that: "none of the defendants herein or hereinafter named have any title, claim or interest in the property which is the subject matter of this suit, except as set out * * * above." No appeal was taken.
In this bill of review suit, Stevie Jackson Hunt and her sister, Minerva Jackson Moye, allege that they are the heirs of S. W. Jackson, one of the many hundred defendants cited by publication in the 1952 suit; that S. W. Jackson, a resident of Hardin County, Texas (over 500 miles from Reeves County) died in 1912; that the plaintiffs live in Houston, Texas, also a great distance from Reeves County; that neither of the plaintiffs here who were 71 *262 and 73 years of age, respectively, were parties to the 1952 suit or ever heard of it until late in 1956 when they promptly employed counsel and brought this action; that the citation had been by publication in small print in The Pecos Enterprise which they describe as a small, local paper; and that they, the plaintiffs, were not negligent in failing to file this suit sooner. They alleged that they had a meritorious defense to the 1952 suit.
As stated, these plaintiffs in their pleadings disclaimed and quitclaimed any interest in any portion of the tract recovered in 1952 by the Ramseys or any of the defendants in that case other than the two specific parcels here in issue. They further allege that none of the defendants in the 1952 action had any claim or interest in the lot and 5-acre farm tract which belonged to S. W. Jackson and which they here seek to recover.
The citation by publication in the 1952 case was supported by an affidavit of G. E. Ramsey that he did not know the residence of any of hundreds of defendants (including S. W. Jackson). The plaintiffs allege that the affidavit was false, perjured, and fraudulent; that the 1952 suit and the citation by publication was part of a fraudulent scheme to keep the plaintiffs from knowing of the suit; that the testimony of G. E. Ramsey, which was the only oral testimony in the 1952 suit, was perjured and false and was given to deceive the court.
It is further alleged that in 1951, the Ramseys executed oil and gas leases on the large tract to Jack May and William Finch. They assigned the leases to Hood who assigned them to Continental Oil Company. It was agreed in this case that Continental now owned the leases. It was made a party to this suit. May, Finch and Hood were not parties to the 1952 suit and they are not made parties here. It is further alleged that the Ramseys in 1956 executed a mineral deed or some other type of instrument to the Republic National Bank of Dallas. It is made a party to this suit.
It is the position of Ramsey and the other defendants to this bill of review action that all parties to the 1952 judgment are indispensable parties to a direct action to set aside any part of the 1952 judgment; that if all parties to the 1952 judgment are not before the court, the action is a collateral attack and the recitation of due service in the 1952 judgment is absolutely controlling. They say in the alternative that if this is a direct attack, nevertheless all of the parties to the former judgment are necessary parties under Rule 39; and if there is any question about that point, Rule 39(b) of the Texas Rules of Civil Procedure vests the trial court with discretion as to their necessary joinder, and that this has been determined by implication by the trial court against the plaintiffs in this action.
The first question is whether, in any event, a part of a judgment may be set aside as to some parties and left intact as to others. We believe that it has been settled that it can be. This was the holding in Boone v. Hulsey, 1888, 71 Tex. 176, 9 S.W. 531. There suit was brought against 40 defendants to recover a large tract of land. Some answered and some did not. Some of the answering defendants compromised with the plaintiffs. Judgment was rendered in favor of the other answering defendants, and the plaintiff recovered judgment by default against the non-answering defendants. After the motion for new trial had been overruled, the non-answering defendants (who had had a judgment by default taken against them) moved that the judgment be set aside as to them because of defective service. This motion was granted. At a subsequent term, the plaintiffs moved that the prior judgment in favor of the answering defendants be set aside because the judgment had been set aside as to the non-answering defendants. This motion was overruled. At the subsequent term there was a separate *263 trial for the former non-answering defendants, and judgment was rendered for them. This action was upheld by this Court. Because the opinion is highly pertinent here, a portion of it is here set out:
"* * * We think the question of the vacation of the former judgment as an entirety, by the setting aside of the judgments by default against some of the defendants, properly before us for consideration, and we will dispose of it here. It is to be noted that each of the defendants claims a separate parcel of the land as against the plaintiffs. Therefore the plaintiffs might have brought a separate suit against each, or at least for the recovery of each tract; and, after the suit was brought against all, each defendant or set of defendants claiming each separate parcel might have claimed a severance, and had a separate trial and judgment. Ballard v. Perry, 28 Tex. 347. Chambers v. Fisk, 9 Tex. 261, was such a case. There a severance was had, and, after a verdict in favor of each defendant, the judgments were recorded in one entry, and as but one judgment. The plaintiffs appealed, giving one bond, payable to all the defendants. The appeal was dismissed; the court holding that the judgments were several, and that a separate bond should have been given payable to each defendant. This clearly recognizes the doctrine that if, in a case in which the defendants are entitled to sever, a severance be allowed upon the trial, there may be more than one final judgment; and it follows as a consequence that the fate of the judgment in favor of one or more defendants is not dependent upon the result of a motion for a new trial made by the other defendants, or to vacate the judgment against them. In this case the defendants who had answered, and who had obtained a verdict and judgment upon the first trial, were not responsible for the error which led to the setting aside of the judgment by default against the other defendants. It was not their fault that their co-defendants were not duly cited, and that judgments by default were erroneously granted. It was incumbent upon plaintiffs to see that the service was perfected upon all the defendants before proceeding to trial; and if, having tried the case as to some, the others not being properly cited, they fail to get a verdict, they should not be heard to complain that the judgment is not final as to all parties. In all suits for the recovery of lands, where the defendants claim separate parcels, and where they are entitled to demand a separate trial, if the plaintiff proceed to trial against one or more, the others not having been properly served, and not having appeared, this should at least be deemed a voluntary severance on his part, and the judgment as to the parties who have been served should be deemed a finality. And so, if he has taken a judgment by default as to defendants not duly cited, and proceed to try as to those who have answered, and those who have answered get a judgment, this should also be treated as a severance, and the judgment properly rendered should not be affected by the vacation of that which was erroneous. The case should be treated as severed, and as admitting of more than one final judgment. It is not an unusual practice in this court, in an appeal by a plaintiff from a judgment in favor of several defendants, each for a separate parcel of land, and in which the defenses are in no way connected, to reverse as to one or more defendants, and to affirm as to the others. [Citing cases.] This court can render such judgment as it would have been proper for the court below to have rendered; and hence it follows that, in our opinion, in this class of cases, it is not improper virtually to sever the defenses after judgment, and, when justice demands it, to grant a *264 new trial as to some of the defendants, and to let the judgment stand as to others. We conclude that the court properly treated the judgment rendered in 1880 as final as to all the defendants who then obtained a verdict, and did not err in refusing to allow plaintiffs to proceed to trial against them a second time." (Emphasis ours.) 9 S.W. 531, at 535.
The annotation in 42 A.L.R. 2d 1030, citing, among others, Boone v. Hulsey, cited just above, states the rule to be:
"* * * In a clear majority of the cases, including the more modern decisions, the view has been taken that a trial court does not lack power to effect a partial vacation (that is, as to some of the parties) of a judgment against multiple parties. Cases taking this view have rejected, either expressly or by implication, the common-law rule that a judgment is, by its nature, inseparable, so that its vacation as to some of the parties against whom it runs necessarily requires its vacation as to all of such parties." 42 A.L.R. 2d 1031, § 2.
We therefore conclude that a portion of the 1952 judgment could, in a proper case, be set aside. This brings us to the second question: may the 1952 judgment be set aside without the joinder of all the parties to it being made parties to this action?
It is the general rule that where a proceeding is instituted to vacate and set aside a judgment, the parties to the judgment must be made parties to such proceeding; and unless this is done, the attack is a collateral one. Hartel v. Dishman, 1940, 135 Tex. 600, 145 S.W.2d 865, at page 870; Griggs v. Montgomery, Tex. Civ.App., 1929, 22 S.W.2d 688 (no writ), noted and criticized 9 Texas Law Rev. 103. The rule, differently stated, is that all parties whose interests are such that they would be, or might be, directly and materially affected are necessary parties; and if joined, the attack is directotherwise the attack is a collateral one. Pure Oil Co. v. Reece, 1935, 124 Tex. 476, 78 S.W.2d 932, at page 934; Reed v. Harlan, 1937, 103 S.W.2d 236, writ refused.
The reason for the general rule which is broadly stated in Hartel v. Dishman, supra, is given in the alternate statement of the rule: all parties whose interests are, or may be, directly and materially affected by a review or modification of the judgment, should be before the court. This leads to an exception to the general rule: parties who will not, or cannot be, affected by the action need not be made parties.
The rule is stated in 4 McDonald, Texas Civil Practice, 1489:
"All parties who are interested in the prior judgment and will be directly and materially affected by the successful prosecution of the bill of review are indispensable parties, without whose presence the action becomes a collateral attack. The inclusion of additional parties does not affect the action. And it is not invariably necessary that all parties to the former action be included in the bill. An assignee of one entitled to attack the decree may proceed without joining his assignor. Where the bill of review attacks the interests of but one party whose interests are severable, others named in the former litigation need not be joined." 4 McDonald, Texas Civil Practice, 1489, § 18.26.
This is the holding of several well-reasoned opinions by the Courts of Civil Appeals: De Garcia v. S. A. & A. P. Ry. Co., Tex.Civ.App.1903, 77 S.W. 275 (writ refused); Lamb v. Isley, Tex.Civ.App. 1938, 114 S.W.2d 673 (no writ); Bonner v. Pearson, Tex.Civ.App. 1928, 7 S.W.2d 930, at page 932 (no writ); Second National Bank v. Fuqua, Tex.Civ.App., 1953, 262 S.W.2d 834 (writ refused N.R.E.). In the Lamb case cited just above, the court held:
*265 "Appellees would sustain the judgment on their general demurrers by the counter proposition of want of necessary partiesthat all the parties to the two judgments were not made parties to the bill of review. This proposition is overruled. The interest awarded Isley by the judgments was severable from that of all the other parties to the proceedings, and appellant attacks these judgments only in so far as they awarded an interest in the land to Isley; therefore he was the only necessary party defendant to the bill of review. In 25 Tex.Jur. 654, it is said: `On the other hand those whose material interests can not be affected are not necessary although they may be proper parties.'" 114 S.W.2d 673, at page 674.
We regard the majority of the Texas cases as placing the emphasis upon whether all persons who would be or could be affected by the result are before the court rather than upon all those who were parties to the proceeding attacked whether they have any present interest to be protected or not. The result of those cases, cited above, is both sound and just. No reason appears for the necessity of joining those who have no interest in the result of the attack merely because they were parties to the original suit. Our conclusion is that only those persons who have a real, present interest in the judgment attacked are necessary for the attack to be direct.
While this is not a statutory bill of review brought under Rule 329, it bears some similarity to one. As to necessary parties, that rule states, "The parties adversely interested in such judgment shall be cited as in other cases." This Court construed the previous statute upon which the rule was based in Wiseman v. Cottingham, 1915, 107 Tex. 68, 174 S.W. 281, 282. There T. A. Cottingham purchased land from West who transferred the note for the unpaid balance and the vendor's lien to Wiseman. T. A. Cottingham died, and his estate could not pay the note. Wiseman elected to assert her superior title and brought suit against Cottingham's administrator, J. R. Cottingham, and against an heir, W. H. Cottingham, both of whom were personally served and defaulted. Also made defendants and served by publication were the unknown heirs of T. A. Cottingham. Judgment was entered against all defendants in 1909. Almost a year later, two nonresident heirs of T. A. Cottingham brought a bill of review to set aside the judgment of 1909. They did not join J. R. or W. H. Cottingham who had been parties to the original suit. Judge Phillips held for this Court that they need not have been made parties: "Their interests were not adverse to the parties seeking the new trial, but were in common with them."
Turning again to the present case, we believe the attack is a direct one. Those who have a present interest in the land sued for, and whose interests may be directly or materially affected, are parties to the litigation. There is no showing that there are others who have a present interest which might be affected who are not joined. The Ramseys, in bringing the 1952 suit, proceeded under Rule 40 and joined all defendants as proper parties, but could have brought separate actions against S. W. Jackson and other different owners or claimants of the various lots, blocks, and farms. The interests in the various tracts, in so far as this record shows, were separate or severable under Boone v. Hulsey, the first case discussed in this opinion. There is no "joint interest" between the rights of the plaintiffs here and the other defendants in the 1952 judgment so as to demand their joinder here. There is no interdependence of the parties to the former action, not parties here, so that it would be prejudicial or inequitable to leave the judgment standing for or against them. Compare, Chmielewski v. March, 1954, 2 Ill. 2d 568, 119 N.E.2d 247, at page 251, 42 A.L.R. 2d 1023, and Rule 39(a), Tex.Rules Civ.Proc.
*266 The plaintiffs here have disclaimed and quitclaimed any interest in any other tract in the area recovered by the Ramseys in the 1952 judgment; and the land in question here is not included within the lands recovered by any of the answering defendants in that judgment. G. E. Ramsey, Jr., contends that he is the present owner of the land here claimed by the plaintiffs under the 1952 judgment. No other claimants appear in the record. The oil and gas lessee and the holder of the mineral deed under Ramsey, though not parties to the 1952 judgment, are parties to this suit. While the oil and gas leases passed through the hands of May, Finch and Hood, it was undisputed that the leases are now owned by Continental Oil Company. Hence, under our holding above, May, Finch and Hood, who were not parties to the 1952 judgment, have no present interest to protect.
We do not regard Rule 39(b), which gives the trial court discretion as to joinder, as being applicable here. In the first place, there is no showing that the trial court exercised any discretion. He simply sustained exceptions which would have required all of the 1,000 defendants in the 1952 judgment to be joined. Secondly, the wording of the Rule as applied to discretion is not applicable here: "The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance * * *." Thirdly, Rule 39 is designed for the origination of actions. When applied to the bringing of actions, the rule was construed as giving the trial court broad discretionary power in Royal Petroleum Co. v. Dennis, Tex., 332 S.W.2d 313, at page 317. This case, however, is for a bill of review of a former judgment, an equitable remedy available to certain parties to an original suit subsequent to having a default judgment rendered against them. Also, in the Dennis case, the court was dealing with persons whose rights "will be directly and possibly adversely affected by the decree." [332 S.W.2d 316.] That was a suit to declare an entire oil and gas lease terminated without the joinder of persons holding royalty interests under the lease being attacked. Because of the large number of royalty holders whose interests would be, or might be, materially affected, the court correctly held that the trial court was vested with discretion as to their joinder, individually or by class action. Analogous facts are not presented here.
To allow the permissive joinder provisions of Rule 40 to become controlling in determining the parties to a bill of review as to a severable interest of one or more defendants would allow the Rule to become a tool of injustice. As a practical matter, such an interpretation would preclude the use of the bill of review in many situations because of the costs involved in bringing into the suit numerous parties who have no interest adverse to that of the parties filing the bill of review. We do not interpret the Rules to require this result.
The judgments of the courts below are reversed and the cause is remanded to the trial court for a determination of the merits of the equitable bill of review.
STEAKLEY, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442512/ | 6 A.3d 550 (2010)
COM.
v.
CAIN.
No. 2422 EDA 2009.
Superior Court of Pennsylvania.
July 7, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2861708/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00422-CR
James Swist, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0950161, HONORABLE MIKE LYNCH, JUDGE PRESIDING
Appellant pleaded guilty to possessing less than 200 grams of cocaine. Tex. Health &
Safety Code Ann. § 481.115(a), (d) (West Supp. 1998). The district court found that the evidence
substantiated appellant's guilt, deferred further proceedings, and placed appellant on community
supervision. Later, on the State's motion, the court revoked supervision, adjudged appellant guilty, and
sentenced him to imprisonment for eight years.
In his only point of error, appellant contends the district court erred by failing to conduct
a separate punishment hearing after adjudicating him guilty. See Issa v. State, 826 S.W.2d 159, 161 (Tex.
Crim. App. 1992). After hearing the evidence at the revocation hearing, including appellant's own
testimony, the court announced its finding of guilt and stated:
It now becomes the Court's duty to assess punishment.
The Court has reviewed the presentence report that was originally filed, as well as
the violation report. I have heard the evidence presented today. Does either side have any
additional evidence? I think we've probably got it all in the record, correct?
[Defense counsel]: Nothing from the defense.
[Prosecutor]: Nothing from the state, Your Honor.
THE COURT: Does the defense wish to be heard on the issue of punishment
briefly? Just do you have any argument?
[Defense counsel]: No, Your Honor.
A defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial
court must allow the defendant the opportunity to present evidence relevant to punishment. Id. The record
clearly reflects that appellant was given the opportunity to offer both evidence and argument relevant to
punishment, and that he affirmatively declined both opportunities. Under the circumstances, no violation
of the rule announced in Issa is shown. We also note that much of appellant's testimony at the revocation
hearing was relevant to the question of punishment. We also note that appellant did not object to the
proceedings below or file a motion for new trial raising the contention he now advances. See Gober v.
State, 917 S.W.2d 501, 502-03 (Tex. App.--Austin 1996, no pet.). The point of error is overruled.
The judgment of conviction is affirmed.
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Affirmed
Filed: January 15, 1998
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1625937/ | 464 So. 2d 1296 (1985)
Terry MOORE, Appellant,
v.
STATE of Florida, Appellee.
No. BD-113.
District Court of Appeal of Florida, First District.
March 7, 1985.
*1297 Terry Moore, pro se, for appellant.
No appearance for appellee.
SMITH, Judge.
In this appeal from the summary denial of his motion for post-conviction relief, appellant raises four points for our consideration, but only one point merits discussion. In this point, appellant contends the trial court erred in imposing a mandatory minimum sentence for his aggravated assault conviction on Count II of the information to run consecutive to the concurrent mandatory minimum sentences for his two armed robbery convictions on Counts I and III of the information. For the reasons expressed below, we reverse and remand with directions on this point. In all other respects, the order appealed is affirmed.
On March 18, 1981, appellant robbed a taxicab driver, Rose Carlson, at gunpoint taking $3.00. Then he turned the gun on William Carlson, her husband, who was riding with her and demanded his wallet which contained no money. He exited the cab and ordered Mrs. Carlson to drive away or be shot. About an hour later, he robbed Mary Ovletrea, an attendant at a gas station, at gunpoint taking $20.00 from her. Appellant was apprehended, identified by Ovletrea and Mrs. Carlson, and an information was filed against him. Count I of the information charged that he had robbed Rose Carlson by using a firearm. Count II charged him with aggravated assault on William Carlson by using a firearm. Count III charged that he used a firearm in the robbery of Mary Ovletrea. The jury convicted him on all three counts. Appellant was sentenced to concurrent forty-year sentences for the two counts of armed robbery, each of which included a mandatory three years imprisonment. His five-year sentence for aggravated assault, which also carried a three-year mandatory minimum term, was run consecutive to his sentences for Counts I and III.
The Florida Supreme Court ruled in Palmer v. State, 438 So. 2d 1 (Fla. 1983), that a trial court may not impose consecutive three-year mandatory minimum sentences for crimes which occur in a single course of conduct.[1] Citing Palmer, appellant contends the trial court erred when it imposed a three-year mandatory minimum sentence for the aggravated assault count to run consecutive to the mandatory minimum sentences for the armed robberies.
We find that since the armed robbery of Mary Ovletrea and the aggravated assault of William Carlson arose from separate incidents occurring at separate times and places, the trial court did not err in sentencing appellant to consecutive mandatory minimum sentences on Counts II and III. Wilson v. State, 449 So. 2d 822 (Fla. 1st DCA 1984). However, since the armed robbery of Rose Carlson and the aggravated assault of her husband occurred in a single course of conduct, the trial court erred in ordering the mandatory minimum sentence on Count II to run consecutive to *1298 the sentence on Count I. Palmer v. State, supra; and Ames v. State, 449 So. 2d 826 (Fla. 1st DCA 1984).
This cause is reversed and remanded to the trial court for correction of appellant's sentences in accordance with the views expressed herein. Appellant need not be present for correction of his sentences.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
ERVIN, C.J., and ZEHMER, J., concur.
NOTES
[1] An issue arises whether the principle in Palmer should be applied retroactively to appellant's sentences. We join with our sister appellate courts in according defendants such as appellant the benefit of Palmer. Cisnero v. State, 458 So. 2d 377 (Fla. 2d DCA 1984), and cases cited therein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625906/ | 500 N.W.2d 183 (1993)
243 Neb. 458
In re Application of CITY OF LINCOLN, Nebraska.
CITY OF LINCOLN, Nebraska, doing business as Lincoln Electric System, Appellant,
v.
NORRIS PUBLIC POWER DISTRICT, Appellee.
No. S-91-430.
Supreme Court of Nebraska.
May 21, 1993.
*185 Charles D. Humble and Linda W. Rohman, of Erickson & Sederstrom, P.C., Lincoln, for appellant.
Steven G. Seglin, of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee.
Patrick W. Healey, of Healey Wieland Law Firm, Lincoln, for amicus curiae Nebraska Rural Elec. Ass'n.
Glenda J. Lanik, Lincoln, for amici curiae, League of Nebraska Municipalities and Nebraska Mun. Power Pool.
Patrick W. Healey, of Healey Wieland Law Firm, Lincoln, for amicus curiae, Cornhusker Public Power Dist.
Kenneth M. Olds, of Olds and Pieper, Wayne, for amicus curiae, Nebraska Elec. Generation and Transmission Co-op., Inc.
HASTINGS, C.J., BOSLAUGH, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ., and GRANT, J., Retired.
CAPORALE, Justice.
I. STATEMENT OF CASE
The applicant-appellant, City of Lincoln (doing business as Lincoln Electric System), sought from the Nebraska Power Review Board a modification of the city's electrical service area so as to permit the city to supply electrical services in an area now served by the protestant-appellee, Norris Public Power District. Prior to hearing, Norris unsuccessfully moved to dismiss the application on the ground that the city had not pled facts entitling it to the relief it sought. The matter then proceeded to hearing. At the close of the city's evidence, Norris successfully moved for dismissal on the ground that the city had failed to establish facts entitling it to a modification. The dispositive assignments of error asserted by the city may be summarized as claiming that the board (1) misinterpreted the applicable statutes and (2) failed to apply the law of the case. We affirm.
*186 II. CONTENTIONS OF PARTIES
In general, the city alleges that as the result of an annexation, it acquired planning and zoning jurisdiction beyond its corporate limits and into the subject area, where Norris presently supplies electrical services. Claiming that it must plan for and be prepared to meet the increased demand for electrical services created by the continuing urbanization of areas within its planning and zoning jurisdiction, the city asserts that its service area must be modified under the provisions of Neb.Rev. Stat. § 70-1007 (Reissue 1990).
Norris' position is that not only did the city fail to allege facts entitling it to a modification of its service area, it failed to prove facts entitling it to such.
III. THE RECORD
The record establishes the city's planning and zoning jurisdiction over the subject area, which consists of approximately 6 square miles falling within Norris' service area and containing 28 consumers of Norris' electrical services.
The record further demonstrates that the city has acquired other areas previously served by Norris and integrated them into the city's system; however, considerable effort, and apparently expense, were required to conform Norris' installations to the city's standards.
For example, the city uses a three-phase circuit with cable rated at 15,000 volts capable of carrying 580 to 590 amperes. In contrast, Norris uses smaller cable capable of carrying only 200 amperes. The city typically needs between 3 to 5 years of leadtime in order to design and construct the urban electrical delivery system it uses. Optimally, the city locates its substations on 2-to 2¼-mile centers, looped so that the various substations back each other up in the event of breakdowns, thus avoiding losses of electrical services to its consumers. When an area has already been developed, the process of obtaining the needed rights-of-way to construct substations becomes difficult and expensive. Moreover, placing larger equipment into an existing neighborhood is disruptive. Therefore, the city prefers to begin serving an area prior to active development.
Although the contestants have been able to agree on day-to-day operational matters, Norris has refused to transfer any territory or customers to the city. It has even refused to engage in any planning with regard to future transfers until annexation has actually taken place. In the city's view, waiting until annexation or just before to engage in joint planning is too late"the interface between an urban system and a rural system occurs better in an area of lower density than higher density." The city would like to establish a "set of mutually agreeable items that would indicate how the parties would plan a transition from one utility to another as the area grows."
The city also adduced evidence that it has grown both in area and population and will continue to do so into the foreseeable future and that the subject area will be developed and be annexed at some unspecified future time. In comparison to peer utilities, the city "perform[s] very well" in terms of outages and does so at competitive rates. Indeed, if the city had been serving the subject area in 1989, the 28 consumers involved would have paid almost 19 percent less for their electricity. However, the city will need to acquire increased electrical capacity, and as a consequence, its average rate is more likely to increase than to decrease.
There is no evidence that Norris is unable to service the consumers in the subject area or that such service involves a wasteful and unwarranted duplication of facilities.
IV. ANALYSIS
With the foregoing background, we proceed to a consideration of each of the city's two dispositive and summarized assignments of error.
1. INTERPRETATION OF STATUTES
The first of these assignments claims that the board misinterpreted the applicable statutes. In addition to § 70-1007, mentioned in part II above, the statutes *187 which control the resolution of the substantive issues in this case are found at Neb. Rev.Stat. §§ 70-1005, 70-1008, 70-1010(1), and 70-1011 (Reissue 1990).
Section 70-1005 provides:
Any supplier may at any time on or after July 1, 1964, apply to the board to establish its service area. In such case and in all cases where agreements have not been entered into, including cases arising under section 70-1008, the secretary shall give written notice to the parties involved citing them to appear at a time, not less than thirty days thereafter, and at a place specified in the notice for a hearing upon the matter of establishing the service areas concerned in the notice. The provisions of this section shall not apply to service within the corporate limits of any municipality.
Section 70-1007 reads:
After the hearing, the board shall make an order establishing the service areas in the matter covered by the notice. In determining any such matter, the board shall seek to carry out the policy stated in section 70-1001. It shall give such consideration as is appropriate in each case to the following:
(1) The supplier best able to supply the load required;
(2) The most logical future supplier of the area;
(3) The desires of the supplier with respect to loads and service areas it wishes to serve;
(4) The ability to provide service at costs comparable to other suppliers in the service area and the immediate costs to the ultimate consumers involved in the transfer; and
(5) The ability of the supplier to cope with the problems of expanding loads and increased costs.
Neb.Rev.Stat. § 70-1001 (Reissue 1990) declares that in order to make adequate electric service available at as low an overall cost as possible, it is the policy of the State to avoid and eliminate conflict and competition among the various entities furnishing electric energy, to avoid and eliminate the duplication of facilities and resources, and to facilitate the settlement of rate disputes.
Section 70-1008 proclaims:
In the absence of an agreement between the suppliers affected and notwithstanding the provisions of subdivisions (1) to (5) of section 70-1007:
(1) Existing service areas presently designated by agreements and exhibits filed with and approved by the board, or previously ordered by the board, shall remain and be established as certified service areas.
(2) A municipally owned electric system, serving such municipality at retail, shall have the right, upon application to and approval by the board, to serve newly annexed areas of such municipality. Electric distribution facilities and customers of another supplier in such newly acquired certified service area may be acquired, in accordance with the procedure and criteria set forth in section 70-1010....
(3) All retail power suppliers having adjoining certified service areas shall engage in joint planning with respect to customers, facilities, and services, taking into account the considerations specified in section 70-1007, including the possibility that an area may be annexed by a municipality within a reasonable period of time.
Section 70-1010(1) specifies, in relevant part:
The board shall have authority upon application by a supplier at any time to modify service areas or customers to be served as previously established. The same procedures as to notice, hearing, and decision shall be followed as in the case of an original application. Suppliers shall have authority by agreement to change service areas or customers to be served with the approval of the board.
The pertinent portion of § 70-1011 recites:
Except by agreement of the suppliers involved, no supplier shall offer electric service to additional ultimate users outside its service area or construct or acquire a new electric line or extend an *188 existing line into the service area of another supplier for the purpose of furnishing service to ultimate users therein without first applying to the board and receiving approval thereof, after due notice and hearing under rules and regulations of the board. Such approval shall be granted only if the board finds that the customer or customers proposed to be served cannot or will not be furnished adequate electric service by the supplier in whose service area the customer is located, or that the provision thereof by such supplier would involve wasteful and unwarranted duplication of facilities.
(a) Scope of Review
Stripped to its essence, the city's position is that § 70-1010(1) requires that its application be judged under the standards set forth in § 70-1007. The gravamen of Norris' position, on the other hand, is that the board may modify an existing service area only when the conditions set forth in § 70-1011 are met.
We are thus confronted with a matter of statutory interpretation, a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. Universal Assurors Life Ins. Co. v. Hohnstein, 243 Neb. 359, 500 N.W.2d 811 (1993); Hoesly v. State, 243 Neb. 304, 498 N.W.2d 571 (1993); Professional Firefighters of Omaha v. City of Omaha, 243 Neb. 166, 498 N.W.2d 325 (1993). Moreover, in settling upon the meaning of a statute, we must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, it being our duty to discover, if possible, the Legislature's intent from the language of the statute itself. Hoesly, supra. See, Fecht v. The Bunnell Co., 243 Neb. 1, 497 N.W.2d 50 (1993); Curry v. State ex rel. Stenberg, 242 Neb. 695, 496 N.W.2d 512 (1993); In re Interest of Powers, 242 Neb. 19, 493 N.W.2d 166 (1992). In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning; when the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain their meaning. Hoesly, supra; Fecht, supra; Curry, supra. Further, the components of a series or collection of statutes pertaining to a certain subject matter may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of the act are consistent, harmonious, and sensible. Fecht, supra; Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993); In re Interest of M.J.B., 242 Neb. 671, 496 N.W.2d 495 (1993). Finally, if there is a conflict, the special provisions of a statute prevail over the general provisions in the same or other statutes. Hoesly, supra. See, also, Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993); Maack v. School Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992).
(b) Statutory Interplay
The city's argument begins with our declaration in Cornhusker P.P. Dist. v. Loup River P.P. Dist., 184 Neb. 789, 798, 172 N.W.2d 235, 240 (1969), that "[a]rea service contracts must be respected in the furtherance of the intent of the statute unless and until the supplier is unable to provide the service in accordance with the guidelines set out in section 70-1007...." Pointing out that § 70-1010(1) subjects an application to modify a service area to the "same procedures as to notice, hearing, and decision ... as in the case of an original application," the city concludes that the elements of § 70-1007 are as controlling in an application to modify an existing service area as they are in an application for the initial establishment of a service area under the provisions of § 70-1005.
It is true that in Cornhusker P. P. Dist., we relied upon the factors enumerated in § 70-1007 to determine whether the supplier in that case was unable to provide the service. However, in Cornhusker P.P. Dist., we did not, as the city infers, hold that § 70-1007 is to be applied in modification cases on a "best provider wins" basis.
*189 Moreover, the city's argument overlooks the effect of 1979 Neb.Laws, L.B. 223. Prior to the enactment of L.B. 223, § 70-1008 (Reissue 1976) provided:
In the absence of an agreement between the suppliers affected and notwithstanding the provisions of subdivisions (1) to (5) of section 70-1007:
(1) In the zoning area surrounding any municipality and outside the corporate limits thereof, if such municipality operates a retail system, it shall have the right to serve such zoning area at retail except as to such customers as are presently served by other suppliers. Such a municipality may acquire the facilities of other suppliers in such zoning area by negotiation.
(2) In determining the service area of a municipally-owned electric system, there shall be included, as a maximum, the corporate area of the municipality, the zoning area outside the corporate limits of such municipality, and the area beyond the zoning area which is presently being served by such municipality, including not more than the area one half mile on each side of the line presently used by such municipality to serve its existing customers, except for customers presently served by other suppliers. When any new customer outside the corporate limits of any municipality and outside the zoning limits surrounding such municipality locates closer to electric lines owned by other suppliers in the municipal service area as provided for in this section, in case of disagreement, the question of which supplier shall serve such new customer shall be submitted to the Nebraska Power Review Board for determination under the standards set forth in section 70-1007.
Thus, L.B. 223 removed the zoning area preference previously afforded to municipalities by § 70-1008; the present language of § 70-1008 makes annexation the event which triggers a municipality's right to serve the new area. This more specific language controls over the general language of §§ 70-1007 and 70-1010(1) and thus limits the board's power to amend certified service areas to the grounds specified in § 70-1011.
It is true that subdivision (3) of § 70-1008 (Reissue 1990) provides for joint planning between "[a]ll retail power suppliers having adjoining certified service areas" utilizing "the considerations specified in section 70-1007." Upon a first reading, this provision appears inconsistent with the earlier language of § 70-1008 that in the absence of an agreement and notwithstanding the provisions of § 70-1007, existing service areas shall remain as certified service areas. It is logically impossible to consider and at the same time not consider the § 70-1007 factors. However, although not artfully drawn, the proviso requiring consideration of the § 70-1007 factors in joint planning harmonizes with the "notwithstanding" language by recognizing that the planning provision is nothing more than a nonbinding tool to be used under appropriate circumstances.
As a consequence, absent the concurrence of the suppliers, the only present means of obtaining a modification of a service area is by meeting the requirements set forth in § 70-1011, that is, by establishing that the present supplier cannot or will not furnish adequate electrical service or that its doing so involves a wasteful and unwarranted duplication of facilities.
2. LAW OF CASE
However, the city urges in the second and last of its dispositive and summarized assignments of error that by overruling Norris' prehearing motion to dismiss, the board determined that the city had alleged a basis for obtaining a modification of the service area under the factors set forth in § 70-1007; that the city accordingly structured the presentation of its evidence in reliance upon that ruling; and that the board was thus precluded from later ruling that the § 70-1007 factors did not apply.
It should first be noted that in the context of court trials, we have held that a pretrial motion to dismiss another's action is not a permissible pleading, but that under certain circumstances, and where by stipulation of the parties or court rule it is *190 allowed, such a motion may be treated as a demurrer. United States Fire Ins. Co. v. Affiliated FM Ins. Co., 225 Neb. 218, 403 N.W.2d 383 (1987). See, also, Cool v. Sahling Trucks, Inc., 237 Neb. 312, 466 N.W.2d 71 (1991). While there may be practical difficulties which prevent the strict and literal application of certain court trial rules to proceedings such as are involved here, see, e.g., Basin Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 (1985), and County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966), because the outcome is not affected, we need not at this time determine whether Norris' prehearing motion was a permissible pleading in this proceeding.
The city's preclusion argument is predicated on a doctrine which is closely allied to res judicata and collateral estoppel and is known as the law of the case doctrine.
Unlike [res judicata and collateral estoppel], which involve successive suits, [the law of the case doctrine] involves successive stages of the same suit. The same policy of repose, however, underlies all. An issue which has been litigated and decided in one stage of a case should not be relitigated in a later stage. The most usual situation for the application of the doctrine involves a second or third appeal in the same case. For instance, an appellate court may reverse and remand a case for a new trial because of alleged errors of law committed by the trial court. After a second trial there may be a second appeal in which the appellant wishes to reargue the points decided on the former appeal....
The [law of the case] doctrine operates... to preclude a reconsideration of substantially similar, if not identical, issues. It is not applied with the same rigor as res judicata or collateral estoppel. It does not include all questions which were present in the case and which might have been decided, but were not, and it will not be applied if considerations of substantial justice suggest a reexamination of the issue is warranted.
Milton D. Green, Basic Civil Procedure 239-41 (2d ed. 1979). See, Pegues v. Morehouse Parish School Bd., 706 F.2d 735 (5th Cir.1983); Lehrman v. Gulf Oil Corporation, 500 F.2d 659 (5th Cir.1974); Consumers Union of United States, Inc. v. Veterans Admin., 436 F.2d 1363 (2d Cir.1971).
This analysis is consistent with Kleckner v. Turk, 45 Neb. 176, 63 N.W. 469 (1895), in which this court determined that a prior refusal to dismiss an action did not preclude the entry of a directed verdict in favor of the defendants. In so ruling, the Kleckner court noted that the later ruling involved a consideration of the evidence which had been adduced, a consideration not available at the time of the earlier ruling.
The same situation exists here. At the time of the prehearing motion, the board had before it only the city's allegations; it could not then know whether the evidence would establish either that Norris failed to meet its service obligations or that doing so did not involve a wasteful and unwarranted duplication of facilities. However, at the close of the city's evidence, the board knew that the city had failed to prove the existence of the requirements for obtaining a modification of its service area. Thus, the posthearing motion did not present an identical or substantially similar issue as did the prehearing motion. Therefore, the prehearing ruling did not preclude the posthearing ruling.
V. JUDGMENT
As the record fails to establish either of the city's dispositive and summarized assignments of error, the decision of the board is hereby affirmed.
AFFIRMED.
WHITE and LANPHIER, JJ., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625955/ | 25 So. 3d 1245 (2010)
LANDINI
v.
STATE.
No. 5D09-1239.
District Court of Appeal of Florida, Fifth District.
January 15, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625962/ | 464 So. 2d 856 (1985)
Beverly Cavallier BERNARD, et al.
v.
Clifton RICHOUX, et al.
No. 84-CA-346.
Court of Appeal of Louisiana, Fifth Circuit.
February 11, 1985.
*857 John W. deGravelles, Dué, Dodson, deGravelles, Robinson & Caskey, Baton Rouge, for plaintiff-appellant.
John H. Musser, IV, Longenecker & Musser, New Orleans, for defendants-appellees Bayou State Sec. Services, Inc. and Midland Ins. Co.
John C. Reynolds, C. William Bradley, Jr., Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Frilot, New Orleans, for defendants-appellees Monsanto Co. and Ins. Co. of North America.
Before BOWES, CURRAULT and GAUDIN, JJ.
BOWES, Judge.
Plaintiff appeals the jury verdict and accompanying judgment denying her claim for damages from defendants. We affirm the actions of the trial court.
This case arises out of a tragic incident which occurred on July 15, 1981, in which defendant Clifton Richoux killed his wife, Sharon Richoux, and her trucking companion, Jessie Bernard. The killings took place on the grounds of Monsanto Company's Luling, Louisiana, plant.
Subsequent to the incident, defendant Richoux was indicted on two counts of first degree murder by a St. Charles Parish grand jury. Richoux was allowed to plead guilty to two counts of manslaughter and is now serving two, consecutive, twentyone year sentences in Angola.
*858 Betty Bernard (improperly referred to in pleadings as "Beverly"), Jessie Bernard's widow, filed suit on her own behalf and on behalf of the couple's minor child against Clifton Richoux, Monsanto Company, Insurance Company of North America (Monsanto's insurer), Bayou State Security Services, Inc., and Midland Insurance Company (Bayou's insurer). All defendants were served with citation and petition. Monsanto, I.N.A., Bayou and Midland answered; Clifton Richoux made no appearance on the record. Betty Bernard failed to take a preliminary default against Clifton Richoux, and in that procedural posture the case was tried to a 12-person jury on March 13-15, 1984.
The jury concluded that neither Monsanto nor Bayou breached any duty owed to Jessie Bernard, and further that both Clifton Richoux and Jessie Bernard were "at fault in causing the death of Jessie Bernard."
Because plaintiff failed to enter a preliminary default against Clifton Richoux, no judgment was rendered against him. On March 20, 1984, the district judge signed the judgment dismissing Monsanto, I.N.A., Bayou and Midland with prejudice and at plaintiff's cost.
Appellant's motion for a new trial was denied on March 29, 1984, and this devolutive appeal followed.
Appellant assigns the following as specifications of error:
I. The trial court erred in failing to exclude for cause certain jurors who had employment ties which made them obviously unable to render an impartial verdict.
II. The trial court erred in not allowing the use of peremptory challenges after the jury had been empaneled but before the jury had been sworn.
III. The absence in the record of certain jurors' and prospective jurors' bench discussions and the absence of other discussions between the trial judge and trial counsel regarding the allocation and use of peremptory challenges requires that this matter be remanded back to the trial court for a jury trial, in that this Honorable Court cannot render an opinion on the issues raised in this appeal with a grossly incomplete record.
Appellant's first allegation of error is based upon the trial judge's denial of two challenges for cause which plaintiff claims resulted in an early exhaustion of her peremptory challenges and thereby forced her acceptance of an employee of a defendant onto the jury. The two members of the venire involved were Martha M. Roach and James L. Pumphrey. Ms. Roach was challenged for cause because she worked for an insurance company (although not one of the companies involved in the suit) and Mr. Pumphrey because he was, at that time, employed by Monsanto and knew some of the witnesses who were to testify. Both of these challenges for cause were denied by the trial judge. Ms. Roach was then challenged peremptorily by plaintiff, but being out of peremptory challenges, Mr. Pumphrey was empaneled.
La.C.C.P. art. 1765 states:
A juror may be challenged for cause based upon any of the following:
(1) When the juror lacks a qualification required by law;
(2) When the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial;
(3) When the relations whether by blood, marriage, employment, friendship, or enmity between the juror and any party or his attorney are such that it must be reasonably believed that they would influence the juror in coming to a verdict;
(4) When the juror served on a previous jury, which tried the same case or one arising out of the same facts;
(5) When the juror refuses to answer a question on the voir dire examination on the ground that his answer might tend to incriminate him.
*859 In State v. Sylvester, 400 So. 2d 640 (La.1981),[1] our Supreme Court elucidated thusly:
Where an accused has exhausted all of his peremptory challenges before completion of the panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. He need only show two things to obtain reversible error: (1) that the trial judge erred in refusing to maintain a challenge for cause by him; and (2) that he exhausted all of his peremptory challenges. He need not make the additional showing of injury resulting from the court's action by forcing him to accept the challenged juror. The trial judge is vested with broad discretion in ruling on a challenge for cause which ruling will not be disturbed on appeal absent a showing of abuse of that discretion.
Last year, the Supreme Court, in State v. Harper, 430 So. 2d 627 (La.1983), explained:
The constitutional standard of fundamental fairness requires that a defendant be judged by a panel of impartial and unbiased jurors. This does not mean, however, that they must be totally ignorant of the facts and issues involved. State v. Willie, 410 So. 2d 1019 (1982); State v. Bell, 315 So. 2d 307 (La.1975). In some instances we have determined that a juror, who has read or heard about the case, can sufficiently lay aside his impression or opinion of defendant's guilt or innocence and render a verdict based on the evidence presented in court. See most recently, State v. David, 425 So. 2d 1241 (La.1983). Usually it is incumbent upon the defendant "to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality." State v. David, supra... and most recently, in State v. Monk, 454 So. 2d 421 (La.App. 3rd Cir.1984), our brothers of the Third Circuit, with whom we agree, stated:
There is a presumption that a juror's answers on voir dire are truthful. Irvin v. Dowd, supra.[[2]] The trial judge is vested with broad discretion in ruling on a challenge for cause which ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Sylvester, [supra]
Using the rationale of State v. Sylvester, supra, since appellant had not exhausted all her peremptory challenges at the time of the ruling on Ms. Roach and did challenge Ms. Roach peremptorily, appellant's complaint is limited to the ruling on juror Pumphrey. The voir dire examination of Mr. Pumphrey reveals the following:
MR. deGRAVELLES:
Mr. Pumphrey, one thing that you said that I want to make sure I understood. You said that you knew Jessie Bernard's side and you knew Monsanto's side. I assume you meant by that that you would be fair to both sides. The thing that concerns me, you do know apparently something about it because you worked at Monsanto, and there were people that talked about it after it happened, and you were part of these conversations about it; is that correct?
MR. PUMPHREY:
I work in the area that he was loading the materials, the materials he was hauling. That's what I knew of him.
MR. deGRAVELLES:
And I imagine when you came back to work, there was plenty of talk about it around the plant.
MR. PUMPHREY:
Yes.
*860 MR. deGRAVELLES:
Now, I made this point earlier. What may have been said, you know and I know, when you have some incident like that, there's tons of talk. Some of it might not be accurate. You don't know the source, and you don't know if it's a good source or a bad source, but you do a lot of talking about it.
What the Judge is going to ask you to do as a juror, what I'm asking you to see if you can do, is to put aside anything you may have heard about this, put that aside and listen only to what comes from the witness stand and make your decision based only on that. Do you think you could do that?
JAMES PUMPHREY:
Yes.
From the foregoing and the remainder of Mr. Pumphrey's examination, we conclude that the trial judge did not abuse her discretion in denying the challenge for cause, since it is clear that James Pumphrey's answers indicate that he could render a fair and unprejudiced verdict.
As to appellant's second allegation of error involving the use of peremptory challenges after the jury had been empaneled but not sworn, we find it has no merit. By plaintiff's own admission, she had exhausted her peremptory challenges long before the final juror was selected. Likewise, her complaint regarding the refusal of the trial judge to allow her to "reserve" at least one peremptory challenge until after the jury was selected but before being sworn is meritless. This procedure is without precedent in our law and our knowledge and experience, and appellant cites no authority whatsoever for same.
We also find appellant's third alleged error without merit. Our reading of the voir dire transcript convinces us that the record is not grossly incomplete. Also, we are not persuaded by counsel's arguments that the failure to record bench conferences between the judge and counsel constitute "grave omissions" which require us to find the learned trial judge manifestly erroneous and to remand the case. Likewise, appellant has failed to demonstrate how the omission of the bench conferences with three prospective jurors prejudiced her case (two of these persons were challenged peremptorily and the third, Mr. Pumphrey, although seated, was extensively examined on the record). Furthermore, the cases cited by counsel are not on point since they involve failure to record entire transcripts or substantial portions of the testimony of witnesses.
Additionally, bench conferences, in our experience, nearly always are NOT recorded. Otherwise, why have a conference at the bench? Further, we do not feel that counsel for appellant is entitled to rely on his "assumption" that such usually nonrecorded conferences were being recorded. If it was that important to him, it was his duty to be sure.
As to appellant's other complaints in this regard, the transcript clearly shows that the trial court alternated between sides when making its inquiry as to whether either side wished to peremptorily challenge each juror in full compliance with La.C.C.P. art. 1766(B). Finally, the omitted discussion of which appellant specifically complains, that with Ms. Gomez, is of no import since Ms. Gomez was challenged and did not serve and, furthermore, plaintiff made no attempt to challenge the one juror sworn after Ms. Gomez was excused.
Accordingly, for the reasons stated, we affirm the judgment of the district court.
AFFIRMED.
NOTES
[1] In searching Louisiana jurisprudence for cases addressing alleged errors involving "challenges for cause" we find most of the reported cases arise out of criminal prosecutions. We, however, note that La.C.Cr.P. art. 797, which governs criminal challenges for cause, clearly parallels La.C.C.P. art. 1765. Therefore we consider the criminal cases applicable to the appeal before us.
[2] 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625956/ | 198 Mich. App. 594 (1993)
500 N.W.2d 480
PEOPLE
v.
LOY-RAFULS
Docket No. 119524.
Michigan Court of Appeals.
Submitted June 9, 1992, at Detroit.
Decided March 15, 1993, at 9:05 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, and Michael Suhy, Assistant Prosecuting Attorney, for the people.
Joan Ellerbusch Morgan, for the defendant on appeal.
Before: MARILYN KELLY, P.J., and McDONALD and REILLY, JJ.
REILLY, J.
Defendant appeals by leave granted his jury convictions of delivery of over 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401) (2)(a)(i), and conspiracy to delivery over 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401) (2)(a)(i) and MCL 750.157a; MSA 28.354(1), and his mandatory sentence of life imprisonment without possibility of parole, MCL 333.7401(3); MSA 14.15(7401)(3). We affirm defendant's convictions, and remand for a modification of sentence.
I
Defendant first argues that he was denied a fair *597 trial when information that was not provided to defense counsel in violation of a discovery agreement was presented to the jury.
One of the police officers involved in the case testified that on the day of the offense he observed two of defendant's codefendants sitting on the hood of a car across the street from where the drug transaction was scheduled to occur. The officer also testified that he saw the car in the same spot the day after defendant and his codefendants were arrested and that another police officer gave him the set of keys that he used to start the car. This information was contained in a police report that had not been supplied to defendant or his codefendants.
A trial court has discretion to fashion a remedy for noncompliance with a discovery order or agreement. People v Taylor, 159 Mich. App. 468, 487; 406 NW2d 859 (1987); People v Clark, 164 Mich. App. 224, 229; 416 NW2d 390 (1987); People v Williams, 188 Mich. App. 54, 58-59; 469 NW2d 4 (1991). The exercise of that discretion involves a balancing of the interests of the courts, the public, and the parties. Taylor, supra at 487.
After an evidentiary hearing, the trial court concluded that the prosecution's noncompliance was not intentional. Nevertheless, the court decided to strike the challenged testimony and instruct the jury at the end of the trial that the testimony should be disregarded. It appears from the record, however, that no such instruction was ever given.
On the basis of our review of the record, we conclude that the trial court attempted to fashion a remedy based upon the consideration of all the parties involved. The failure to give the curative instruction does not require reversal because defendant has failed to show any prejudice. Williams, *598 supra at 59. The testimony did not implicate defendant in any way. Furthermore, there was other evidence that demonstrated that defendant was involved in the actual delivery of the cocaine. Accordingly, we conclude that neither the admission of the police officer's testimony nor the failure to give the curative instruction deprived this defendant of a fair trial.
II
Defendant also asserts that he was denied the effective assistance of counsel.
Because no Ginther[1] hearing was held with regard to defendant's claims, our review is limited to deficiencies apparent in the record. People v Juarez, 158 Mich. App. 66, 73; 404 NW2d 222 (1987). We have reviewed the record in this case and conclude that any errors made by counsel were not so serious that counsel was not functioning as an attorney for the purposes of the Sixth Amendment. Furthermore, defendant has not overcome the presumption that the challenged actions might be considered sound trial strategy and has not demonstrated that he was prejudiced by any deficiencies of counsel. Strickland v Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984); People v Tommolino, 187 Mich. App. 14, 17; 466 NW2d 315 (1991).
III
Next, defendant asserts that he was denied a fair trial when a power outage occurred during the trial because after the lights came back on, defendant and his codefendants were surrounded by police officers with guns drawn. Defendant argues *599 that the trial court should have commented on the incident or instructed the jury, but does not indicate what sort of comment or instruction would have been proper. Furthermore, neither defendant nor his codefendants requested any instructions at the time of the incident. Accordingly, appellate review is foreclosed in the absence of manifest injustice. People v Johnson, 187 Mich. App. 621, 628; 468 NW2d 307 (1991).
It appears from the record before us that the security measures employed during the power outage were not unreasonable. In addition, defendant has failed to show the existence of any prejudice.[2] See People v Meyers (On Remand), 124 Mich. App. 148, 165; 335 NW2d 189 (1983). Accordingly, we find no manifest injustice.
IV
Defendant also argues that hearsay testimony elicited from two of the police officers regarding statements of two codefendants made while arranging the cocaine delivery was improperly admitted. Defendant alleges that there was insufficient independent proof of a conspiracy to bring this testimony within the hearsay exception provided by MRE 801(d)(2)(E).
Hearsay statements of a coconspirator are not admissible as an exception to the hearsay rule unless and until the existence of the conspiracy is shown by independent evidence. People v Vega, 413 Mich. 773, 780; 321 NW2d 675 (1982); People v Moscara, 140 Mich. App. 316, 319; 364 NW2d 318 (1985). A conspiracy must be shown by a preponderance *600 of the evidence. Vega, supra at 782; Moscara, supra at 319.
In support of his argument on appeal, defendant relies on Vega, supra, and People v Gay, 149 Mich. App. 468; 386 NW2d 556 (1986), where the Courts held that reversal was necessary because there was insufficient independent evidence that the defendants in those cases knew or intended that the cocaine would be delivered to a third party. Vega, supra at 781; Gay, supra at 471. In contrast, the evidence presented in this case, exclusive of the testimony regarding the coconspirator statements, supports a finding that defendant knew that the cocaine was intended for a third party because he actually handed the bag containing cocaine to the undercover police officer. Accordingly, reversal is not required in this case. See Moscara, supra at 321-322.
V
Defendant's fifth argument is that he was denied a fair trial when he was tried together with six codefendants. We disagree.
Although some of the codefendants made motions for separate trials, it does not appear from our review of the record that defendant made such a motion.[3] In any event, we conclude that the trial court did not abuse its discretion in denying the motions for separate trials. People v Hicks, 185 Mich. App. 107, 117; 460 NW2d 569 (1990). The defenses of defendant and his codefendants were not antagonistic. Furthermore, because the jury acquitted one of the codefendants, it appears that it was able to separate the testimony regarding each of the defendants and that it was not inclined *601 to find "guilt by association." Accordingly, defendant has failed to establish that he was prejudiced by the joint trial. Id.
VI
Defendant asserts that MCL 763.3; MSA 28.856, which permits a prosecutor to object to a defendant's waiver of a jury trial, violates the Michigan Constitution. This argument was recently rejected by the Michigan Supreme Court. People v Kirby, 440 Mich. 485, 487; 487 NW2d 404 (1992).
VII
Next, defendant argues that he was denied a fair trial because of improper remarks by the prosecutor. However, defendant did not object to these comments during trial. To the extent that the remarks may be considered improper, defendant was not deprived of a fair trial, because any prejudicial effect resulting from the remarks could have been cured by a cautionary instruction at trial. People v Mack, 190 Mich. App. 7, 19; 475 NW2d 830 (1991).
Defendant also argues that the prosecutor intentionally questioned a witness regarding the addresses of defendant and his codefendants in spite of the trial court's ruling that such evidence should not be presented to the jury. Defendant cannot claim that he was prejudiced by this questioning because the witness never answered the question posed by the prosecutor and because defendant's attorney himself asked the witness to give defendant's address. Furthermore, we conclude that defendant was not prejudiced by any testimony regarding deals and discussions leading up to the subject transaction.
*602 VIII
Lastly, defendant argues that even though the evidence showed that he was involved in the distribution of two kilograms of cocaine, his sentence of mandatory life imprisonment without possibility of parole constitutes cruel and/or unusual punishment under the United States and Michigan Constitution.
In 1991, the United States Supreme Court determined that Michigan's mandatory penalty for possession of 650 grams or more does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Harmelin v Michigan, 501 U.S. ___; 111 S. Ct. 2680; 115 L. Ed. 2d 836 (1991). However, the Michigan Supreme Court recently heard a challenge to the mandatory sentence for that offense under Const 1963, art 1, § 16. People v Bullock, 440 Mich. 15, 42; 485 NW2d 866 (1992). The Court found that compelling reasons existed for interpreting the state constitutional provision "cruel or unusual" more broadly than the United States Supreme Court interpreted the Eighth Amendment in Harmelin. In Bullock, the Court determined that a proper interpretation of the state constitutional provision required it to strike down the mandatory penalty of life imprisonment without parole as unjustifiably disproportionate to the crime of possession of 650 grams or more. However, the Court specifically distinguished the crime of possession from the crimes of delivery of, or possession with intent to deliver, 650 grams or more of cocaine, and did not address the constitutionality of the mandatory penalty for the latter crimes. Id. at 37-38, 40. The Supreme Court has subsequently denied leave to appeal in several cases challenging the constitutionality of the mandatory penalty for delivery or possession with *603 intent to deliver 650 grams or more of cocaine. See People v Gonzalez, 440 Mich. 910 (1992). In People v Fluker, 197 Mich. App. 225; 494 NW2d 830 (1992), a case involving delivery of 650 grams or more of cocaine, this Court held that mandatory life imprisonment without parole was cruel or unusual punishment under the Michigan Constitution. Pursuant to Administrative Order No. 1990-6, 436 Mich. lxxxiv, that decision is binding on this Court. However, for the reasons stated below, we believe that Fluker was correctly decided.
In the past, when the state constitutional issue has been presented in the context of delivery or possession with intent to deliver 650 grams or more, Michigan courts have repeatedly upheld the penalty provision and determined that the mandatory life sentence without parole is not cruel or unusual under the Michigan Constitution. People v Harding, 163 Mich. App. 298, 329; 413 NW2d 777 (1987), vacated on other grounds 430 Mich. 859 (1988), and cases cited therein.[4] See also Young v Miller, 883 F2d 1276 (CA 6, 1989), cert den ___ US ___; 111 S. Ct. 2886 (1991) (Michigan's mandatory penalty for possession with intent to deliver 650 grams or more upheld under the Eighth Amendment). *604 Nevertheless, in addressing the constitutionality of the mandatory life sentence without parole in the case before us, we are bound to follow the direction provided by the majority decision in Bullock and apply the three-pronged test adopted by the United States Supreme Court in Salem v Helm, 463 U.S. 277, 290-291; 103 S. Ct. 3001; 77 L. Ed. 2d 637 (1983), which was foreshadowed in People v Lorentzen, 387 Mich. 167, 171-172; 194 NW2d 827 (1972).[5] This Court is instructed to consider: first, the gravity of the offense and the harshness of the penalty; second, the comparable sentences imposed on other criminals in the same jurisdiction; and third, comparable sentences imposed for commission of the same crime in other jurisdictions.
A. GRAVITY OF THE OFFENSE
"[T]he collateral effects flowing even from mere possession of cocaine are terrible indeed." Bullock, supra at 39. Those collateral effects, which are universally recognized as devastating to addicted individuals, their families, and society as a whole, are considerably magnified when the ramifications of the sale and distribution of this dangerously addictive drug are considered. There is no question that the offense of delivery of 650 grams or more is extremely grave because it may well be life-threatening, and addiction and its consequences are surely foreseeable. If gravity of the offense were the only consideration, there would be no difficulty upholding the mandatory sentencing provision as being neither cruel nor unusual.
*605 B. COMPARABLE SENTENCES IN MICHIGAN
When the second criterion, comparable sentences in Michigan, is considered, it must be recognized that only the commission of first-degree murder is subject to the same harsh punishment as is imposed for delivery of 650 grams or more of cocaine. The defendant in this case has been punished more severely than he could have been for second-degree murder, rape, mutilation, armed robbery, or other exceptionally grave and violent crimes. Bullock, supra at 39-40. A sentence of life imprisonment without parole is mandatory, even though no showing of malice is required, or that a death occurred, or that there is a direct unwilling victim, as is the case in premeditated or felony murder. Nor is it even necessary to show that the defendant has committed a specific crime against property. As noted by the Bullock majority, an individual defendant with no prior record, who is a one-time courier, and whose intent to harm is not even considered, should not be made to bear the guilt for all the evils wrought by the drug trade. To be considered constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt. Harmelin (White, J., dissenting), supra at 2716, adopted by Bullock, supra at 39.
While we emphatically do not minimize the gravity and reprehensibility of defendants' crime, it would be profoundly unfair to impute full personal responsibility and moral guilt to defendants for any and all collateral acts, unintended by them, which might have been later committed by others in connection with the seized cocaine. Persons who independently commit violent and other crimes in connection with illegal drugs can and should be held individually responsible by our criminal justice system. [Id.]
*606 We believe, therefore, that Bullock's evaluation of the severity of the offense of possession, and the harshness of the penalty for that offense, must also be applied to the offenses of possession with intent to deliver and delivery of 650 grams or more of cocaine. Applying the Bullock reasoning, we conclude that the mandatory life sentence without parole, which must be imposed on a defendant convicted of delivery of 650 grams or more of cocaine, whether the defendant was the convicted head of a drug cartel or was a seventeen-year-old with no record who acted as a courier, "leads to an inference of gross disproportionality."
C. COMPARABLE SENTENCES IN OTHER JURISDICTIONS
The third criterion considers sentences imposed for the same crime in other jurisdictions. As noted by Bullock, "no other state in the nation imposes a penalty even remotely as severe as Michigan's for mere possession of 650 grams or more of cocaine. Bullock, supra at 40. The same may be said for the offense of manufacture, distribution, or possession with intent to distribute cocaine. Only Alabama provides for a mandatory sentence of life imprisonment without possibility of parole for a first-time drug offender who "knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of" specified amounts of various narcotics, but only when the evidence shows that the defendant possessed ten kilograms or more. Ala Code § 13A-12-231(1), (2)(d)(Supp 1990).
Under the federal drug-control statute, a defendant's conviction for distribution of 500 grams or more of cocaine, but less than 2,000 grams, would require a minimum sentence of five years and a maximum of forty years of imprisonment. Under *607 the federal sentencing guidelines for a first-time offender with no enhancements, the recommended minimum sentence would be sixty-three to seventy-eight months. United States Sentencing Commission Guidelines Manual, § 201.1 (1990). The penalty increases with the amount of cocaine distributed, and additional enhancement factors are considered, but a first-time offender convicted of distributing 2,000 grams (2 kilograms) would not face a mandatory sentence of life without parole.
Having considered the three prongs of the Lorentzen-Salem proportionality analysis adopted in Bullock, we are convinced that the statutory penalty of mandatory life without parole for all persons convicted of delivery of 650 grams or more, without consideration of any other factor, is unconstitutionally disproportionate and violates the prohibition against cruel or unusual punishment under Const 1963, art 1, § 16. Therefore, we follow the lead of Bullock's majority and strike down, with regard to this defendant, and all others who have been sentenced under the same penalty and for the same offense, that portion of MCL 791.234(4); MSA 28.2304(4) denying such defendants parole consideration. Such defendants shall become subject to the jurisdiction of the parole board and be eligible for parole consideration in accordance with MCL 791.234(4)(a)-(d), (5); MSA 28.2304(4)(a)-(d), (5). See Bullock, supra at 42-43.[6]
Defendant's convictions are affirmed. His sentence of mandatory life imprisonment without possibility of parole shall be modified in accordance with this opinion. Remanded for correction of the judgment of sentence. We do not retain jurisdiction.
*608 MARILYN KELLY, P.J., concurred.
McDONALD, J. (dissenting in part).
I dissent in part with respect to issue VIII. I do not agree that a sentence of mandatory life imprisonment without possibility of parole for a person convicted of delivery of cocaine in excess of 650 grams constitutes cruel or unusual punishment under the Michigan Constitution.
Moreover, contrary to the majority's position, pursuant to Administrative Order No. 1990-6, 436 Mich. lxxxiv, we are bound to follow People v Alexander, 188 Mich. App. 96, 106; 469 NW2d 10 (1991), which finds the penalty for delivery of over 650 grams of cocaine constitutional under Michigan law.
The panel in People v Fluker, 197 Mich. App. 225; 494 NW2d 830 (1992), failed to mention the Alexander decision. I would assume it was unaware of the existence of the decision because it failed to give reasons why it did not follow Alexander pursuant to Administrative Order No. 1990-6.
The majority herein acknowledges the existence of Alexander and the administrative order, but states it is not bound to follow them because Alexander uses the phrase "cruel and unusual" rather than "cruel or unusual." Alexander adopted the analysis in People v Harding, 163 Mich. App. 298; 413 NW2d 777 (1987), which considered whether life imprisonment without parole was "cruel or unusual" punishment under the Michigan Constitution. Alexander's use of "and" rather than "or" was obviously an oversight.
Further the majority states it is bound to follow the direction provided by the majority in People v Bullock, 440 Mich. 15; 485 NW2d 866 (1992). To the contrary, we are bound to follow the administrative order because our Supreme Court in Bullock *609 limited its decision to convictions for possession of 650 grams or more and has frequently and consistently denied leave in cases involving delivery or possession with intent to deliver 650 grams or more of cocaine.
I would affirm the sentence.
NOTES
[1] People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
[2] We note that one of defendant's codefendants, who was presumably also surrounded by the police, was acquitted. Therefore, it seems unlikely that the incident prevented the jury from fairly considering the evidence presented.
[3] The transcript citations relied on by defendant refer to the arguments of the codefendants' counsel.
[4] In People v Alexander, 188 Mich. App. 96, 106; 469 NW2d 10 (1991), the defendant was convicted of delivery of more than 650 grams of cocaine. On appeal, this Court rejected the defendant's contention that his sentence of life imprisonment without parole was "cruel and unusual," with the following citation:
People v Harmelin, 176 Mich. App. 524, 535; 440 NW2d 75 (1989), lv den 434 Mich. 863 (1990), cert gtd ___ US ___; 109 L. Ed. 2d 742 (1990). See also People v Harding, 163 Mich. App. 298, 329; 413 NW2d 777 (1987), vacated on other grounds 430 Mich. 859 (1988), and cases cited therein.
The Alexander opinion does not refer to or discuss the phrase "cruel or unusual" punishment under the Michigan Constitution. Because Alexander did not decide whether mandatory life imprisonment for delivery of more that 650 grams is "cruel or unusual," it is not binding on our decision. Administrative Order No. 1990-6.
[5] The Bullock majority has chosen to follow the Lorentzen-Salem criteria regardless of whether it has survived as a matter of federal constitutional law in the wake of Harmelin's majority decision. Bullock, supra at 34-35.
[6] See discussion regarding incongruity with other mandatory penalty provisions for delivery of less than 650 grams in Bullock, supra at 43, n 26. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625986/ | 25 So. 3d 411 (2008)
Ex parte ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
(In re Mary-George D. Watson v. Allianz Life Insurance Company of North America and Jeffrey D. Fredrickson).
1070114.
Supreme Court of Alabama.
December 5, 2008.
Rehearing Denied June 12, 2009.
*412 Michael L. Bell, Melody H. Eagan, Rachel M. Lary, and Haley A. Andrews of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner.
Wilson F. Green and James E. Fleenor, Jr., of Battle Fleenor Green Winn & Clemmer LLP, Tuscaloosa: Harlan F. Winn III, Robert E. Battle, and Michael J. Clemmer of Battle Fleenor Green Winn & Clemmer LLP, Birmingham; and Lynn W. Jinks and Christina Crow of Jinks, Daniel & Crow, LLC, Union Springs, for respondent.
PARKER, Justice.
Allianz Life Insurance Company of North America ("Allianz") petitions for a writ of mandamus directing the Barbour Circuit Court to vacate its orders to compel production of certain discovery documents for an individual plaintiff in a fraud case involving the sale of an annuity. The requested documents were produced in class actions in California and in Minnesota, and Allianz alleges that the documents are patently irrelevant or duplicative. For the reasons discussed below, we deny the petition.
Background
In 2003, Mary-George D. Watson bought an Allianz BonusDex Elite Annuity policy for $14,397.66. She subsequently sued Allianz and Jeffrey D. Fredrickson,[1] the agent who sold her the policy, in the Barbour Circuit Court, alleging fraud based on representations allegedly made to her by Fredrickson at the point of sale.
The BonusDex Elite Annuity is a deferred annuity; it begins paying a stream of payments at a point in time after its purchase. Watson alleges that she told Fredrickson that she did not understand the sales literature provided by Allianz or the written contract and that she would rely on Fredrickson's explanation of the policy. She claims that he misrepresented the terms of the policy to her. In addition to her fraud claim, Watson alleges that Allianz negligently or wantonly hired, trained, or supervised Fredrickson, and that Allianz and Fredrickson failed to procure a suitable insurance product for her. She also alleges against both Allianz and Fredrickson breach of contract, breach of fiduciary duty, and conspiracy.
Allianz is a defendant in several actions involving the same and similar annuity contracts, and, according to Allianz, Watson sought, and obtained orders in the trial court compelling Allianz to produce, documents previously produced for two of those cases, including:
"1. All documents produced by [Allianz] in the case of Vida F. Negrete, et al. v. [Allianz] (Civil Docket # 2:05-cv-06838-CAS-MAN), United States District Court for the Central District of California, as well as the case of Mooney, et al. v. [Allianz] (Civil Docket # 06-cv-00545 (ADM/FLN)), United States District Court for the District of Minnesota.
*413 "2. All depositions taken in [Negrete], as well as [Mooney], including exhibits to the depositions."
Allianz filed a motion for a protective order as to the documents, which the trial court denied.[2] Allianz states that the Negrete court has certified the class in a nationwide RICO class action as follows:
"`All persons who within the applicable statute of limitations of the date of commencement of this action and while 65 years of age or older, purchased one or more Allianz Life Insurance Company of North America deferred Annuities either directly, or through surrender(in whole or in part) of an existing permanent life insurance policy or annuity, or by borrowing against an existing permanent life insurance policy.'
"App. Exh. 6, [Stephen] Jordan Aff. Exh. B at 26-27. The Negrete class consists of approximately 200,000 members[, and Watson] is neither a member of the Negrete class, nor a California sub-class, because she was age 52 when she purchased her policy, and is not a California resident."
Petition at 3. Allianz notes that production of the documents in Negrete has resulted in over 180,000 documents produced under 143 requests, and it anticipates that production will be substantially more than one million documents, not including over 2,800 pages of transcripts resulting from 13 days of depositions. Petition at 4.
The Mooney[3] action pending in the United States District Court for Minnesota is based entirely on alleged violations of the Minnesota Consumer Protection Fraud Act and on common-law unjust enrichment.[4] The Mooney court certified a nationwide class consisting of:
"`All individuals who from February 9, 2000 to the present purchased one of the following two-tiered annuities from Allianz Life insurance Company of North America: BonusMaxxx, BonusMaxxx Elite, BonusDex, BonusDex Elite, 10% Bonus PowerDex Elite, MasterDex 10, and the InfiniDex 10 ("Annuities"). The class excludes all persons who purchased the above-listed Annuities from Allianz while they were California residents and when they were 65 or older.'"
Petition at 5 (quoting Affidavit of Stephen Jordan).[5] This class includes approximately 337,000 members. Under Mooney, Allianz has produced approximately 70,000 documents in response to 53 requests and has produced about 8,400 pages of transcripts from 53 days of depositions and about 500 associated exhibit documents. Petition at 5. Allianz petitions this Court for a writ of mandamus directing the Barbour Circuit Court to vacate its orders *414 compelling production here of the documents produced in the Negrete and Mooney class actions.
Standard of Review
"A writ of mandamus can be issued to affect the trial court's control of the discovery process, but this Court's review of a petition seeking a writ in a discovery dispute is particularly stringent:
"`The law relating to the issuance of a writ of mandamus in a case involving a discovery dispute was recently set out in Ex parte Henry, 770 So. 2d 76 (Ala.2000). In Ex parte Henry, this Court stated:
"`"Rule 26 Ala. R. Civ. P., governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. `Discovery matters are within the trial court's sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.' Wolff v. Colonial Bank, 612 So. 2d 1146, 1146 (Ala.1992) (citations omitted); see also Ex parte Hicks, 727 So. 2d 23, 33 (Ala.1998) (Maddox, J., dissenting).
"`"... The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala.1993)); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court `determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.' Ex parte Horton, 711 So.2d at 983. Moreover, `"[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief," and "[t]he writ will not issue where the right in question is doubtful."' Ex parte Bozeman, 420 So. 2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala.1981)).'"
"Ex parte Pitts, 822 So. 2d 418, 421-22 (Ala.2001). See also Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala.2003) (holding that `mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.'). The Court in Ocwen noted that `[i]n certain exceptional cases ... review by appeal of a discovery order may be inadequate' and that among those exceptional cases were those in which `a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party....' 872 So.2d at 813. See also Ex parte Crawford Broad. Co., 904 So. 2d 221 (Ala. 2004). Moreover, we are also aware of *415 the fundamental disinclination of the appellate courts to intrude into the trial court's province of conducting the litigation process. Appellate courts are fundamentally directed toward the review of an appeal after a case is concluded in the trial court, and they are not well equipped to manage the trial court's business, particularly where the appellate caseload is more than sufficient to fully occupy the court's time. This Court has long recognized the principle that `"[c]ases should not be tried by piecemeal, and separate and distinct rulings upon the evidence brought to this court pending the progress of the trial...."' Ex parte Alabama Power Co., 280 Ala. 586, 599, 196 So. 2d 702, 715 (1967) (quoting Ex parte Little, 205 Ala. 517, 517, 88 So. 645, 646 (1921))."
Ex parte Cooper Tire & Rubber Co., 987 So. 2d 1090, 1100-01 (Ala.2007).
Analysis
Allianz states the issue as:
"Whether a Plaintiff asserting Alabama fraud and other claims based on oral representations by an independent agent in the purchase of single annuity product in 2003, may compel discovery or more than one million documents and 66 days of depositions (with hundreds of exhibits), produced in two national class actions pending in federal courts in California and Minnesota involving hundreds of thousands of individual transactions from 1997 and thereafter for the purchase of annuity products."
Petition at 6.
Allianz argues that the writ of mandamus should issue because, it says, the documents covered by the orders compelling discovery are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence and because Watson should not be provided access to trade secrets or confidential documents.
As to the permissible scope of discovery, Allianz states that "the right to discovery, even in cases including fraud claims seeking punitive damages, `is not unlimited.' Ex parte Union Sec. Life Ins. Co., 723 So. 2d 34, 38 (Ala.1998)." Petition at 6. Citing Ex parte National Security Insurance Co., 773 So. 2d 461, 465-66 (Ala.2000), Allianz further notes that Alabama courts allow broader discovery than normal when fraud is alleged and punitive damages are sought, if the requests are closely tailored to the nature of the fraud alleged and are not oppressive or unduly burdensome. Petition at 7. Allianz argues that Watson's Alabama common-law claims against Allianz and one Alabama agent stemming from her purchase of a single annuity policy are very narrow, but her discovery requests are very broad. Id. Allianz suggests that Watson's misrepresentation claim against Fredrickson concerning the suitability of the policy features to her needs can be established only through discovery of the facts that are unique to her policy and to her transaction, which occurred in 2003. Id. Allianz notes that the discovery ordered, however, includes information regarding "essentially all information related to hundreds of thousands of transactions involving 63 different ... [policies] ... in all 50 states since December 1997." Petition at 8. Allianz argues that the discovery requests and the orders compelling discovery are not closely tailored, or tailored at all, to Watson's claims, and that, therefore, the orders should not be allowed to stand. Id.
As to relevance of the ordered production, Allianz notes that Watson's claims are supported solely by the alleged oral misrepresentations of Fredrickson, an independent agent, and that her complaint does not allege participation by Allianz in *416 the sales process, nor does it allege that Allianz's written sales materials contain any misrepresentations. Allianz argues:
"The scope of discovery needed to establish the claims of the 337,000 members of the nationwide class in Mooney, is clearly not the same as that needed by the individual policyholder here. Documents related to hundreds of thousands of other transactions involving other annuities, dissimilarly situated non-party agents and customers in states other than Alabama at times other than November 2003 are irrelevant to [Watson's] claims. The ordered production is utterly untailored to the time, geography, or scope of the particular fraud allegations [Watson] asserts."
Petition at 9.
Watson argues that the writ of mandamus should not issue because, she says, the documents are relevant to her claims and because Allianz has failed to meet its burden under Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala.2003), of showing that the documents and items requested in discovery are patently irrelevant and that the production of those documents and items "`clearly constitute[s] a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party.' Ocwen, 872 So.2d at 813." Watson's response at 15.
While Allianz has provided a plethora of information on the merits of the case below that appears to justify its request, we note that the issue presented by Allianz does not accurately reflect the task of this Court. Our task in this case is to evaluate the decision of the trial court to determine whether, in exercising its discretion, it exceeded that discretion. To conduct such an evaluation, it is necessary to review the information on which the trial court based its decision.
Allianz has provided this Court with no evidence indicating that it responded to Watson's motion to compel production of the documents it now says are not discoverable. Because a "trial judge's order should not be reversed for the judge's failing to heed an argument never made in the trial court," ConAgra, Inc. v. Turner, 776 So. 2d 792, 799 (Ala. 2000)(Lyons, J., concurring in the judgment affirming the award of compensatory damages and otherwise concurring both in the judgment and the opinion), we are provided no basis for finding error in the trial court's exercise of its discretion in that regard. Rule 21(a)(1)(E), Ala. R.App. P. Similarly, when we next seek justification for the trial court's denial of Allianz's motion for a protective order, we find that Allianz has not provided this Court a copy of the motion or any supporting information as part of its petition. Accordingly, we can find no error in the trial court's exercise of its discretion regarding the denial of the protective order because we have no evidence that the motion was more than a mere unsupported request for a protective order. Indeed, the sole evidence this Court has of the existence of such a motion is the word "denied" on a single-page order from the trial court that references a motion for a protective order.[6]
The trial court's October 3, 2007, order to compel reads in part:
*417 "There being good cause shown that these documents and depositions are available to Defendant Allianz and either could be admissible in this matter or are reasonably calculated to lead to the discovery of admissible information, the Court finds that [Watson's] Motion to Compel is due to be granted." Petition, App. Tab 3.
The trial court subsequently denied Allianz's motion for a protective order, and the "presumption must be indulged by this court in favor of the ruling of the trial court," Harris v. Basden, 162 Ala. 367, 370, 50 So. 321, 322 (1909), because "[d]iscovery matters are within the trial court's sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant." Wolff v. Colonial Bank, 612 So. 2d 1146, 1146 (Ala. 1992) (citing Smith v. Wilcox County Bd. of Educ., 365 So. 2d 659 (Ala.1978); Selby v. Money, 403 So. 2d 218 (Ala.1981); Riddlesprigger v. Ervin, 519 So. 2d 486, 487 (Ala.1987); Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala.1989); Ragan v. Blazon Flexible Flyer, Inc., 590 So. 2d 882 (Ala. 1991); and Napier v. McDougal, 601 So. 2d 446 (Ala.1992)).
Allianz has failed to provide "parts of the record that would be essential," Rule 21(a)(1)(E), Ala. R.App. P., to overcome the presumption of correctness attendant to the trial court's order. See Ex parte Atchley, 936 So. 2d 513, 516 (Ala.2006).
Conclusion
This Court has stated that "the writ of mandamus will not issue to compel a trial court to change its discovery order unless the appellate court determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion." Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998).
Allianz has not met its burden of demonstrating that the trial court exceeded its discretion in granting Watson's motion to compel production and in denying Allianz's motion for a protective order. The petition, therefore, is denied.
PETITION DENIED.
COBB, C.J., and SEE, WOODALL, and SMITH, JJ., concur.
NOTES
[1] Watson's complaint names Allianz and "Jeffrey D. Fredrickson" as defendants. The first paragraph of the complaint, however, refers to "Robert E. Fredrickson."
[2] As discussed later in this opinion, Allianz did not include a copy of the motion for a protective order with its petition; therefore, we cannot know the contents of the motion.
[3] Watson asserts that she "was a member of the Mooney class, but she has chosen to pursue her individual claims against Allianz and the agent in this case." Watson's response at 4. This assertion is followed by a footnote that states: "Because the Court in Mooney has not disseminated notice to the class, class members have not been advised of any right or obligation to opt out of the class." Watson has apparently not yet opted out of the class in Mooney, but the parties did not address the significance of that footnote.
[4] Allianz is incorporated under Minnesota law, with its principal place of business and headquarters in Minneapolis, Minnesota.
[5] Allianz attaches to its petition an affidavit by Stephen Jordan, one of the attorneys representing Allianz in the Negrete action, discussing the Negrete litigation and the Mooney litigation, but Allianz does not explain if or how those materials were before the trial court.
[6] Watson has provided a transcript of the hearing on her motion to compel held on September 12, 2007. The transcript contains mention of a proposed protective order being negotiated by the parties, indicating that Allianz had submitted the order to Watson's counsel and that it had not been provided to the trial court at that time. Watson states in her response that "since [the hearing,] the parties have reached an agreement on the terms of a Protective Order." Watson's response at 25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626678/ | 767 So. 2d 438 (2000)
THE FLORIDA BAR, Complainant,
v.
David Carlton ARNOLD, Respondent.
No. SC94727.
Supreme Court of Florida.
August 24, 2000.
John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, Florida, and William Mulligan, Bar Counsel, Miami, Florida, for Complainant.
Jerome H. Shevin, Miami, Florida, for Respondent.
*439 David C. Arnold, Miami, Florida, Respondent, pro se.
PER CURIAM.
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by David Carlton Arnold. The Florida Bar petitions for review, challenging the referee's recommended discipline. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons stated, we approve the referee's findings of fact and recommended discipline.
In March 1993, Arnold was convicted in federal court of various charges, including three counts of violating 18 U.S.C. § 1957(a) (1986), and sentenced to federal prison. Pursuant to rule 3-7.2(d) of the Rules Regulating The Florida Bar, the Bar filed a notice of determination of guilt, and Arnold was suspended by this Court pursuant to rule 3-7.2(e), effective July 19, 1993. On July 25, 1997, Arnold's convictions were reversed and the case remanded for a new trial because of prosecutorial misconduct involving a Brady[1] violation. See United States v. Arnold, 117 F.3d 1308 (11th Cir.1997). Arnold was released from prison after having served fifty-three months.
Subsequently, Arnold sent a letter notifying the Bar that his conviction had been vacated and requesting that his suspension be terminated. Arnold enclosed a copy of the opinion reversing his conviction. Arnold also stated that by separate cover he was filing "petitions for removal of both dues and CLE delinquency,"[2] having fully paid and completed the required continuing legal education credit hours. By letter dated September 16, 1997, the Miami office of the Bar notified Arnold that, pursuant to a stipulation signed in July 1993, the suspension would continue until the final disposition of the criminal case. Arnold then received another letter from the Tallahassee office of the Bar dated January 5, 1998, stating that he had been reinstated effective December 1997 as a member in good standing with the approval of the Board of Governors. Based on the letter, Arnold again started practicing law.
On March 26, 1998, Arnold entered a plea of guilty to a violation of 18 U.S.C. § 1957(a) (1986),[3] which was Count II of the original indictment filed. The other counts were dismissed. Arnold was adjudicated guilty and sentenced to time served. On April 6, 1998, Arnold notified the Bar of the March 26, 1998, conviction. On November 12, 1998, the Bar notified Arnold that his reinstatement was an administrative error and that he was still suspended, but the Bar would not hold him accountable for practicing law to November 1998 because of its error. On January 20, 1999, the Bar filed a complaint against Arnold based on the March 1998 conviction.
A referee was appointed and a hearing was held. The referee found that Arnold's violation of section 1957(a) stemmed from his representation of a client in connection with the purchase and sale of a sailboat. The referee found that in 1985 Arnold had made three $9,000 cash payments on behalf of his client to Argonaut Yacht Sales toward the purchase of a sailboat. In 1986, the client left the boat with Argonaut to be sold. After selling the boat, Argonaut sent the proceeds of the sale to Arnold *440 on November 11, 1986, two weeks after the enactment of section 1957(a). Arnold then deposited the check into his trust account, retained his attorney fees, and disbursed the balance to his client's account in the Philippines. The referee concluded that Arnold's plea of guilty to a violation of section 1957(a) was an admission that Arnold knew or deliberately avoided learning that which was readily apparent-that some of the proceeds that were used to purchase the sailboat in 1985 were derived from marijuana smuggling activities. The referee found Arnold guilty of violating rule 3-4.3 (Misconduct and Minor Misconduct) of the Rules Regulating The Florida Bar. The referee recommended that Arnold be found not guilty of violating rules 3-4.4 (Criminal Misconduct) and 4-8.4(b) (Misconduct).
In mitigation, the referee found: (1) Arnold had no prior disciplinary record; (2) there was an absence of dishonest or selfish motive; (3) no injury to clients resulted; (4) Arnold had a cooperative attitude during the proceedings; (5) credible character witnesses testified on Arnold's behalf; (6) the Bar caused unreasonable delay that prejudiced Arnold; (7) Arnold demonstrated interim rehabilitation; (8) Arnold has had other sanctions and penalties imposed in the way of incarceration and depletion of financial resources; (9) the underlying offense was remote in time; (10) the sentencing judge felt sympathetic toward Arnold; (11) there was government misconduct in the underlying case; and (12) Arnold dedicated a large part of his life to public service.
The referee recommended that Arnold be suspended for sixty days, nunc pro tunc to July 19, 1993, with automatic reinstatement. The Bar does not contest the referee's findings of fact but argues that a three-year suspension is the appropriate discipline based on Arnold's felony conviction.
As to attorney discipline, it is ultimately this Court's task to determine the appropriate sanction. See Florida Bar v. Anderson, 538 So. 2d 852, 854 (Fla.1989). Under Florida Standard for Imposing Lawyer Sanctions 5.11, disbarment is appropriate when an attorney is "convicted of a felony under applicable law." The burden is on the attorney to overcome the presumption of disbarment. See Florida Bar v. Grief, 701 So. 2d 555, 557 (Fla.1997). We find that Arnold has met that burden in this case.
We expressly do not condone Arnold's activities that led to his conviction and incarceration nor do we diminish our stringent requirement that every attorney abide by the law and our strict enforcement of harsh discipline for felony convictions. We find here, however, that Arnold was in fact suspended from July 1993 to December 1997, and then again from November 1998 until the present, resulting in a total suspension in excess of five years. These periods of past suspension for this same conduct together with the extensive mitigation found to exist by the referee provide a basis for us to approve the referee's recommended discipline.
Accordingly, David Carlton Arnold is hereby suspended from the practice of law in Florida for sixty days, nunc pro tunc to July 19, 1993. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida, 32399, for recovery of costs from David Carlton Arnold in the amount of $1,065.01, for which sum let execution issue.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
NOTES
[1] Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
[2] Although Arnold characterized his letter as a "petition for removal" of CLE and dues delinquency, rule 1-3.7(b) of the Rules Regulating The Florida Bar characterizes such a petition as one for reinstatement.
[3] 18 U.S.C. § 1957 (1986) provides:
Engaging in monetary transactions in property derived from specified unlawful activity
(a) Whoever, in any of the circumstances set forth in subsection (d), knowingly engages or attempts to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity, shall be punished as provided in subsection (b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626674/ | 767 So. 2d 436 (2000)
Dan Patrick HAUSER, by his next friends Zainna Fawnn CRAWFORD, and Gregory C. Smith, Capital Collateral Counsel, Petitioner,
v.
Michael MOORE, Secretary, Florida Department of Corrections, and James Crosby, Warden, Florida State Prison, Respondents.
Nos. SC00-1664, SC00-1665.
Supreme Court of Florida.
August 18, 2000.
*437 Gregory C. Smith, Capital Collateral Counsel, Timothy P. Schardl, Special Assistant CCC-NR, Heidi Brewer, Assistant CCC-NR, and Linda McDermott, Assistant CCC-NR, Office of the Capital Collateral CounselNorthern Region of Florida, Tallahassee, Florida; Dan Patrick Hauser, pro se, Starke, Florida; and Michael A. Flowers, Co-Counsel of Jones & Flowers, Niceville, Florida, for Petitioner.
Robert A. Butterworth, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, Florida, for Respondents.
PER CURIAM.
We deny petitioner Zainna Fawnn Crawford's Motion to Proceed as Next Friend and dismiss the Petition for Writs of Habeas Corpus, Prohibition, and Mandamus, and Invoking this Court's All-Writs Jurisdiction for the reason that petitioner does not have standing to petition on behalf of Dan Patrick Hauser. See Durocher v. Singletary, 623 So. 2d 482 (Fla.1993).
It is so ordered.
WELLS, C.J., and HARDING, LEWIS and QUINCE, JJ., concur.
SHAW, J., dissents with an opinion, in which ANSTEAD and PARIENTE, JJ., concur.
SHAW, J., dissenting.
Hauser is scheduled to be executed at 6:00 p.m., Tuesday, August 22, 2000. Up until this point, the State's case against Hauser has proceeded by default; no one has challenged the State's assertions. In circuit court, Hauser waived counsel and opted not to challenge his upcoming execution. After appointing a mental health expert to evaluate Hauser's competence to make these decisions and holding a Faretta[1] hearing, the court allowed Hauser to proceed unrepresented. The Office of the Capital Collateral Counsel-North ("CCR") has filed in this Court a motion on behalf of Hauser's biological mother, Zainna Fawnn Crawford, who seeks the Court's permission to proceed in this action on Hauser's behalf as his "next friend."[2] She claims that Hauser is incompetent to decide the self-representation issue and that the trial court erred in ruling otherwise. The present majority opinion holds that Crawford lacks standing to proceed in this action. I disagree.
The United States Supreme Court has held that in order to appear before the Court as "next friend," an individual "must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf." Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 1727, 109 L. Ed. 2d 135 (1990). I do not read Durocher v. Singletary, 623 So. 2d 482 (Fla.1993), as holding otherwise.
Crawford has raised in this Court the allegation that the trial court's competency order is based on a faulty premise-i.e., that Hauser had no prior history of significant mental health problems. The State does not contest Crawford's present assertions undermining that premise: that Hauser in fact was diagnosed as a manic-depressive, was placed on lithium therapy, has suicidal ideations, has received both in-and outpatient treatment for mental health problems, has chronically abused drugs and alcohol, and was discharged from the Army after six months for mental health reasons.
Crawford in her motion thus raises serious questions concerning Hauser's competency, which the State has not rebutted. In fact, the State earlier asked the trial court to hold such a hearing. Because of the critical nature of this issue and the *438 lack of any prior review, I would return this case to the trial court so that court can hold a limited hearing on the issue of Hauser's competency to discharge counsel. Unlike the situation in Whitmore, the validity of the trial court's competency decision in the present case has never been subjected to appellate review. The State has cited no case where a trial court's competency decision concerning a death-sentenced inmate has not been subjected to appellate review. Further, this Court's decision in Durocher is inapposite. There, no substantive allegation of incompetence was made.[3]
In light of the finality of the death penalty and the fact that, up until now, this case has proceeded without the safety mechanism of appellate review, I believe this Court has a duty to ensure that Hauser is competent to proceed without counsel.
ANSTEAD and PARIENTE, JJ., concur.
NOTES
[1] Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
[2] Hauser was raised by adoptive parents, who are not involved in the present action.
[3] See Durocher v. Singletary, 623 So. 2d 482, 484 (Fla.1993) ("CCR argues that Durocher is not competent to waive collateral representation, but presents nothing more than speculation to support its argument."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625916/ | 464 So. 2d 1359 (1985)
Winnifred A. JENNINGS, Appellant,
v.
Marion A. JENNINGS, Appellee.
No. 84-529.
District Court of Appeal of Florida, Third District.
March 26, 1985.
Don R. Livingstone, South Miami, for appellant.
Stephen M. Bell, Plantation, for appellee.
Before HENDRY, HUBBART and BASKIN, JJ.
HUBBART, Judge.
The former wife Winnifred A. Jennings appeals a final judgment entered in a marriage dissolution action. She raises as her only point on appeal that the trial court *1360 abused its discretion in denying her an award of periodic alimony. Under the established law of this state, she bears a heavy burden of demonstrating that the failure to award her such alimony was an abuse of discretion as, by and large, the trial court has a very wide discretion in deciding questions of this nature; she must demonstrate that there is no reasonable basis in the record for the trial court to deny her such alimony in that no reasonable person could have reached the conclusion arrived at by the trial court.[1] For the reasons which follow, we conclude that the former wife has met this heavy burden and reverse.
We are led to this result because, viewing the record in a light most favorable to the former husband Marion A. Jennings, the former wife has passed from a relatively comfortable lifestyle during marriage to a state of financial misfortune as a result of the judgment under review. The former husband is, without dispute, thirty-six years old, in good health, employed as an FAA air controller earning some $43,000 a year, and has always supported the wife during their marriage in a relatively comfortable, but not lavish lifestyle. The former wife, on the other hand, is thirty-six years old and admittedly has only limited earning ability as a licensed practical nurse; she worked sporadically in this capacity during the parties' sixteen-year marriage, has earned in the past a maximum of $12,000 one year, and was unemployed at the time of the final hearing, having undergone some recent serious surgery. She was awarded custody of the parties' two minor children and has, without dispute, weekly expenses of $525 for herself and the two minor children. She was awarded, however, no periodic alimony and child support of $150 a week; without dispute, the child support award will not even pay the monthly mortgage payments on the marital home which she was awarded as lump sum alimony and in which she has only a small equity. To say the least, she is in a position of extreme financial hardship due to the lack of any periodic alimony award.
The former husband does not take serious issue with his former wife's financial plight as a result of the judgment under review nor with his ability to pay a periodic alimony award. Instead, he seeks to support the judgment primarily on the basis that the record supports the conclusion that the former wife was entirely responsible for the breakup of the marriage due to an open, adulterous affair. Although we agree that a party's adultery may, in the discretion of the trial court, be taken into account in deciding whether to make an award of alimony and in determining the amount of alimony, if awarded, Williamson v. Williamson, 367 So. 2d 1016, 1018 (Fla. 1979); Williamson v. Williamson, 353 So. 2d 880, 882 (Fla. 1st DCA 1977), modified on other grounds, 367 So. 2d 1016 (Fla. 1979); McAllister v. McAllister, 345 So. 2d 352, 354-55 (Fla. 4th DCA 1977), cert. denied, 357 So. 2d 186 (Fla. 1978); § 61.08(1), Fla. Stat. (1983), the record in this case discloses substantial marital misconduct in the form of adultery on both sides and therefore provides no justification for the trial court's denial of any alimony to the admittedly needy former wife. See Smith v. Smith, 378 So. 2d 11, 15 (Fla. 3d DCA 1979), pet. for review denied, 388 So. 2d 1118 (Fla. 1980). In light of this record, such denial was arbitrary and unreasonable and constitutes an abuse of the trial court's discretion.
The final judgment under review is therefore reversed and the cause is remanded to the trial court with directions to award the former wife either rehabilitative or permanent periodic alimony, in the discretion of the trial court, in an amount which will not leave the former wife in a state of financial misfortune.
Reversed and remanded.
NOTES
[1] Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625942/ | 464 So. 2d 1221 (1985)
HOUSING AUTHORITY OF the CITY OF SANFORD, Florida, Petitioner,
v.
Robert L. BILLINGSLEA, Etc., et al., Respondents.
No. 84-1115.
District Court of Appeal of Florida, Fifth District.
January 3, 1985.
Rehearing Granted in Part; Denied in Part March 14, 1985.
*1222 Robert K. McIntosh, and Ned N. Julian, Jr., of Stenstrom, McIntosh, Julian, Colbert, & Whigham, P.A., Sanford, for petitioner.
Aurelio Durana, Gen. Counsel, and J. Worth Owen, Asst. Gen. Counsel, Florida Commission on Human Relations, Tallahassee, for respondents, Commissioners.
Harry L. Lamb, Jr., Orlando, for respondent, Williams.
ORFINGER, Judge.
The Housing Authority of the City of Sanford, Florida seeks a writ of prohibition to prevent respondents from conducting a hearing based on a complaint filed with the Human Relations Commission which contends that the Housing Authority has committed an unlawful employment practice. Upon the filing of the petition, we issued a rule to show cause and temporarily stayed all proceedings. We have considered the response and now deny the writ and vacate the stay.
Linda H. Williams filed a petition with the Commission on Human Relations pursuant to the Human Rights Act of 1977, Florida Statutes §§ 760.01-760.10 (1983). The petition alleged that Ms. Williams, a black female applicant for a promotional position as Executive Director with the Housing Authority of the City of Sanford, was discriminatorily denied the promotion solely because she was female, and that a man was hired for the position solely based upon his sex. Pursuant to section 120.57, Florida Statutes, and Rules 22T-9.08(5) and 22T-8.16(2), Florida Administrative Code, the Human Relations Commission requested that the Division of Administrative Hearings assign the matter to a hearing officer, conduct the necessary proceedings *1223 required, and submit a recommended order to the Commission.
The Housing Authority of the City of Sanford filed a petition for a writ of prohibition with this court asserting that Florida Statutes § 112.042[1] provides the exclusive remedy for the claimed violation of Williams' rights and that the hearing officer and the Human Relations Commission will act in excess of their jurisdiction in hearing this case because the cited statute vests exclusive jurisdiction with the circuit court.
The respondents, as the commissioners of the Florida Commission on Human Relations, the Commission itself and the complainant Linda Williams all contend, essentially, that the proceedings are governed by the Human Rights Act of 1977, which affords at least concurrent jurisdiction in such matters to the Commission.
Section 760.10 provides, in pertinent part:
(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Under section 760.02 the term "employer" is defined to include the state or any governmental entity or agency. Section 760.06 endows the Commission with the power to:
(5) To receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by ss. 760.01-760.10.
(6) To hold hearings to determine the facts about instances of discrimination or intergroup tensions.
The relator concedes that it is an agency of the municipality, and respondents do not controvert this allegation. They part company on the question of where jurisdiction lies to hear Linda Williams' complaint. The relator contends that exclusive jurisdiction is vested in the circuit court pursuant to section 112.042, whereas respondents contend that, at the very least, there is concurrent jurisdiction under sections 760.01-760.10.
It is a recognized principle of statutory construction that general and special statutes covering the same subject matter should be read together, and if possible, harmonized, but in the event of conflict, the special statute will prevail in the absence of a clear legislative intent to the contrary. City of St. Petersburg v. Carter, 39 So. 2d 804 (Fla. 1949); State v. Sarasota County, 74 So. 2d 542 (Fla. 1954); 49 Fla.Jur.2d Statutes § 182 (1984). Relator relies on this principle and contends that because section *1224 112.042 is a special law while the Human Rights Act is a general law, the provisions of section 112.042 should prevail.
We find nothing in the respective statutes to support relator's contention. Each statute specifically addresses discriminatory employment practices, so neither can be construed as more "special" than the other. The Human Rights Act of 1977 is much broader and much more comprehensive in scope than is section 112.042. The procedures under the statutes are different. Section 112.042 requires that there be a demand upon the agency to correct its practices and policies, after which an action may be filed in circuit court. The Human Rights Act requires no such demand, and provides an administrative remedy to one allegedly discriminated against. Thus, the statutes each seem to have their own concurrent spheres of operation.
Section 112.042 proscribes discrimination because of race, color, sex, religious creed or national origin if the individual discriminated against is the most competent and able to perform the services required. Section 760.10, on the other hand, additionally proscribes discrimination because of age, handicap or marital status, and does not require any showing that the person allegedly discriminated against is the most competent and able to perform the services required. Because section 112.042 does not address the issue of discriminatory employment practices more specifically than does the Human Rights Act of 1977, we see no legislative intent that the former divests the Commission of its authority to consider the complaint. Thus, the Commission on Human Relations does have jurisdiction under sections 760.01-760.10 to hear the complaint. The petition for writ of prohibition is denied.
WRIT DENIED.
COBB, C.J., and FRANK D. UPCHURCH, Jr., J., concur.
ON MOTION FOR REHEARING
PER CURIAM.
The Petitioner, Housing Authority of the City of Sanford, Florida, seeks rehearing in this cause of our opinion dated January 3, 1985, arguing that this court has misapprehended the distinction between a general and a special statute. It is true, as contended by petitioner, that section 112.042, Florida Statutes (1983), originally enacted in 1969, comprehends only discrimination in regard to county and municipal employment, whereas the Human Rights Act of 1977, sections 760.01-760.10, proscribes discrimination by any employer. There would be a legitimate argument that the earlier special law supersedes the later general one in regard to counties and municipalities except for one salient fact: the 1977 act specifically includes as covered employers "any governmental entity or agency" which employs "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Given this specific language, we conclude that the 1977 act grants to the Commission on Human Relations at least concurrent jurisdiction with the Circuit Court in regard to county and municipal employers.
The second ground raised by the motion for rehearing challenges our observation that section 760.10 "does not require any showing that the person allegedly discriminated against is the most competent and able to perform the services required." In making this observation, we do not imply that competency and ability are irrelevant considerations in discrimination cases. Obviously, employment based upon the factors of competency and ability, as opposed to the proscribed factors of race, color, sex, etc., does not constitute actionable discrimination under either section 112.042 or chapter 760.
We grant rehearing to the extent of modifying our previous opinion by the addition of the foregoing clarification. Otherwise, the petition for rehearing is denied.
GRANTED in part; DENIED in part.
COBB, C.J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.
NOTES
[1] Section 112.042, Florida Statutes (1983) says in pertinent part:
112.042 No discrimination in county and municipal employment.
(1) It shall be against the public policy of this state for the governing body of any county or municipal agency, board, commission, department, or office, solely because of the race, color, sex, religious creed, or national origin of any individual, to refuse to hire or employ, to bar, or to discharge from employment such individuals or to otherwise discriminate against such individuals with respect to compensation, hire, tenure, terms, conditions, or privileges of employment, if the individual is the most competent and able to perform the services required.
(2)(a) Any person, firm, corporation, association, or other group or body, jointly or severally, who may be aggrieved by any decision, regulation, restriction, or resolution adopted by the governing body of any county or municipal agency, board, commission, or department which is an unlawful employment practice under this section may apply to such agency, board, commission, or department at any time for a modification or rescission thereof. If such modification or rescission should be refused, any such person, firm, corporation, association or other group or body may, within 30 days after such refusal, but not thereafter, institute original proceedings for relief in the circuit court of the county.
(b) There shall be no right to apply to the court for relief on account of any order, requirement, decision, determination, or action of any county or municipal officer pursuant to this section unless there shall first have been an appeal therefrom to the governing agency, board, commission, or department to which such officer is responsible. [Emphasis added].
This statute was adopted by Chapter 69-334, Laws of Florida (1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626014/ | 345 S.W.2d 239 (1961)
Lucille MOORE, Plaintiff-Respondent,
v.
G. Farrell WEBB, DDS, and Frank E. Klee, DDS, Defendants-Appellants.
No. 23270.
Kansas City Court of Appeals, Missouri.
April 3, 1961.
*240 Roy F. Carter, Kansas City, for appellant.
Phillip L. Waisblum, Robert B. Paden, Kansas City, for respondents.
CROSS, Judge.
In this malpractice suit plaintiff Lucille Moore asks damages from defendants G. Farrell Webb and Frank E. Klee, dentists in partnership, caused by their extraction of eight of her teeth without her consent while she was in a state of anaesthesia. The trial resulted in a jury verdict and judgment for $5,500 in favor of plaintiff. Defendants have appealed.
Defendants first contend that plaintiff failed to make a submissible case and that the trial court should have directed a defendants' verdict. It is argued there is no evidence to show: (1) that plaintiff's eight teeth were extracted without her consent; (2) that she did not intend their extraction; (3) that defendants were not apprised that she didn't intend the extractions; and (4) that the teeth did not need to be removed.
In determining the sufficiency of the evidence to make a case we assume as true every fact and circumstance in plaintiff's favor and resolve all reasonable inferences favorably to her. All evidence and inferences unfavorable to plaintiff we shall disregard.
There is evidence in the record to establish the following facts: Plaintiff is 43 years old, married, and the mother of five children. On November 29, 1957, she consulted Dr. George Martin, a dentist, because an upper tooth was cracked and another one had a loose filling. In past years she had lost several back teeth, some from the effects of childbearing. She had six upper teeth and ten lower teeth, all in front and adjoining, none causing any trouble. Dr. Martin "very carefully" examined her teeth and recommended that the six upper teeth be extracted and replaced by a complete *241 upper denture. He advised extraction of two lower teeth, second bicuspids, and the use of a partial lower denture with the remaining eight teeth. Plaintiff agreed to that plan and "understood that Dr. Martin would make her a complete upper denture and a lower partial one to be placed in back of the eight lower teeth that were to be left intact". Dr. Martin gave plaintiff a written quotation on the cost of the dentures. He referred plaintiff to Doctors Webb and Klee for the extraction work, and prepared a "referral card" on which he wrote "Remove all uppers and both lower 2nd bicuspids".
By appointment plaintiff went to defendants' office and handed her card to the receptionist. After her teeth were X-rayed she was taken to "a little place where they drape you and lay you back". A nurse appeared and plaintiff was given a "shot", after which she felt herself "going out". She then inquired: "Don't I even get to see the dentist going to do the work?" Dr. Webb appeared, briefly, but she was "getting woozy". They talked only about a recent bereavement of her brother-in-law, who was a friend of Dr. Webb, as "that is all the time we had". She was then going to sleep. There was no discussion about her teeth. She stated: "If we had talked, I might have talked that over".
Next, one of the girls in the office came in, put a thermometer in plaintiff's mouth, and asked her to sign a paper, stating that it was "a formality for the doctor to do her work". Plaintiff testified "I couldn't see. I could see lines, but I couldn't read a bit and she held it up and I signed it, and I don't even remember doing that, and the next thing I knew was when I woke up and I discovered my mouth was empty. I just went hysterical".
The reverse side of the "paper" contained words, figures and marks which defendants term a "chart" to indicate the teeth that had been marked for extraction. That side of the document was not shown to plaintiff at any time. The X-rays of her teeth were never shown to her. Neither dentist or any technician ever talked to plaintiff about the X-rays or about which of her teeth were to be extracted. According to the testimony of defendants' dental assistant, who was present during the extraction operation, both defendants participated in removing plaintiff's teeth, Dr. Webb being the first actor. He came into the surgery room, marked the chart for the teeth to be removed, and administered plaintiff sodium pentothal, a general anaesthetic. Then he called in Dr. Klee, turned the job over to him, and left the surgery room. Dr. Klee extracted all of plaintiff's upper teeth and proceeded to take out the lower ones. After removing one or two of the lower teeth, Dr. Klee stopped and said, out loud, "Are these teeth to be removed ?" He turned and looked at the chart and said, "Well, they are marked". He resumed the "surgery" and pulled all of the teeth remaining in plaintiff's mouth.
When plaintiff regained consciousness in the recovery room, she became very distressed because all her teeth were gone, and was crying as hard as she could. She opened her mouth for her daughter to see and said, "He pulled all my teeth." While she was still "crying and upset and such" she told defendants' assistant that all of her teeth were gone and that she wasn't supposed to have all of them outthat she didn't want all of them removed. "She was very upset and there was quite a bit of commotion". Plaintiff's daughter asked for the referral card prepared by Dr. Martin but was told that it was locked up.
Plaintiff was nervous and upset and cried all the way home. She was put to bed immediately and remained in bed for several days. Her mouth began to swell, her face turned black and her fingers became numb. She was then admitted to Trinity Lutheran Hospital where she remained four days for treatment. She now wears full dentures. Her teeth pop up when she tries to eat and move up and down when she drinks liquids. *242 She remains in a nervous condition and is bothered with numbness in her right hand and blurring of vision.
Dr. Klee did not recall whether he had anything to do with the extractions but stated he could have done some part of it. Dr. Webb testified he had no recollection of talking to plaintiff about what teeth were to be extracted or discussing the X-rays with her. He stated there was no decay present in four of her lower teeth. Further testimony of Dr. Webb is quoted as follows:
"Q. Isn't that pretty much up to the patient what they would do with reference to a partial plate, if they wanted a partial plate? A. No sir.
"Q. Couldn't they have that if they wanted that? A. That all depends. I don't think so. I think you should strive to do for the patient what is the best thing over a long period of time for the patient. We tried to abide by that.
"Q. Isn't that up to the patient? A. No, I don't think it should be. If they go to a doctor they should discuss it. He should decide. The patient should agree that that is what is to be done and should be done.
"Q. Isn't this up to the patient? If I want to pay $800.00 for a partial, I hope the dear Lord let's me keep my teeth. If I want to keep these teeth, can't I do it? A. You don't know whether they are causing you trouble.
"Q. That is up to me, isn't it? A. Not if you come to see me it wouldn't be."
The narrated evidence is amply sufficient to support the jury's conclusion that plaintiff did not intend the extraction of the eight teeth and that she did not consent to their removal. We do not consider here whether or not the teeth needed removal. That question was not submitted to the jury as a predicate to plaintiff's right to recover.
When plaintiff submitted herself to defendants for their services, she was not granted personal consultation. Through no fault of hers, it was not her privilege to speak to defendants in person and state what she wanted them to do. Her disappointment in this respect was shown by the question she asked when she realized she was going into narcosis: "Don't I even get to see the dentist going to do the work?" And, when the dentist did appear, communication was limited to a brief personal exchangeended by the hypodermic injection of sodium pentothal to induce complete anaesthesia.
Since defendants chose to receive plaintiff's instructions from the card alone, they are bound by its contents. It conferred no greater extent of consent or authority than to "Remove all uppers and both lower 2nd bicuspids". The card was a limitation of consent, restricted to the specified teeth. It was notice to defendants of plaintiff's intention to have only her upper teeth and two lower bicuspids removed, and to refrain from pulling any others.
Defendants insist that a verdict should have been directed in their favor because plaintiff signed a paper entitled "Permit for Operation", containing the following words: "This is to certify that I, the undersigned, consent to the performing of whatever operation may be decided upon to be necessary or advisable, and the use of local or general anesthetic as indicated. I desire to have Extraction or Surgery as shown upon the examination chart above." They argue that the "Permit" was general authority for them to take out all of plaintiff's teeth. They say the paper was a written instrument which plaintiff should have read, and that she is estopped from avoiding it by her failure to do so. In support of this proposition defendants rely upon the general law of contracts and cases involving commercial contracts and releases.
*243 This question is not to be ruled by the law of trade and commerce governing transactions between parties who deal at arms length in the market place. It is to be viewed in the light of the physicianpatient relationship which existed between the parties, since the rules and standards governing the duty and liability of physicians in the performance of professional services are applicable to practitioners of the kindred branches of the healing art, including dentists. 41 Am.Jur. Physicians and Surgeons, Sec. 88.
A physician occupies a position of trust and confidence as regards his patienta fiduciary position. It is his duty to act with the utmost good faith. This duty of the physician flows from the relationship with his patient and is fixed by lawnot by the contract of employment. 21 R.C.L. 379; Parkell v. Fitzporter et al., 301 Mo. 217, 256 S.W. 239, 29 A.L.R. 1305. The law's exaction of good faith extends to all dealings between the physician and the patient. A person in ill health is more subject to the domination and influence of another than is a person of sound body and mind. The physician has unusual opportunity to influence his patient. Hence, all transactions between physician and patient are closely scrutinized by the courts which must be assured of the fairness of those dealings. In regard to any contract between physician and patient, it is the rule that the physician has the burden of proving that the patient entered into it voluntarily and advisedly, and without undue influence. 41 Am.Jur., Physicians and Surgeons, Sec. 74.
The "Permit" that plaintiff signed fails to stand the test of the rule. The circumstances surrounding the transaction negative any idea that she signed the paper understandingly or executed any knowing consent by signing the document. She was under the influence of a narcotizing drug and was going to sleep. She didn't have her glasses and was unable to read. The nurse told her it was only a formality and held the paper for plaintiff's signature, which was obligingly affixed, although in the wrong spacean act not remembered by plaintiff.
The "Permit for Operation" is a vague document. Although it purports to refer to an "examination chart above", it contains nothing, in reasonably intelligible form, to show what teeth defendants proposed to extract. The evidence tends strongly to show that any marks on the paper to indicate intended extractions were made by Dr. Webb after plaintiff signed it, and after she received the anaesthetic. Of further importance is the fact that when plaintiff was asked to sign the "Permit" she had received no advice or information of any nature from defendants. Neither of them had examined or consulted with her. She never saw her dental X-rays. Defendants withheld from her all facts which could have formed the basis of any intelligent consent to extract any more of her teeth than authorized by the referral card. It was not possible that she could give knowing additional consent. Full disclosure by the physician is necessary for an informed consent by the patient. Salgo v. Leland Stanford, Jr. et al., 154 Cal. App. 2d 560, 317 P.2d 170.
Even if it be assumed that plaintiff read the paper and understood its contents, we consider it only as a written confirmation of the consent already granted by the referral cardnot as blanket authority to remove all of her teeth. In Valdez v. Percy, 35 Cal. App. 2d 485, 96 P.2d 142, 145, the plaintiff sued surgeons for removing her breast without her consent. The doctors contended they were given authority for that operation by an agreement signed by plaintiff which stated: "The undersigned patient and others hereby consent to any and all of the medical and surgical treatments, including operations, * * * which may be deemed advisable * * *". The appellate court commented on the "agreement" as follows: "However, we do not understand such agreement to *244 constitute a consent to perform operations other than the one for which the operating surgeons were engaged by plaintiff to perform unless necessity therefor arose during the authorized operation as hereinbefore mentioned * * *." We apply the quoted statement to our understanding of the "Permit for Operation" in this case. Whether or not, under all the facts and circumstances in evidence, plaintiff consented to the removal of the eight lower teeth was a question of fact which was properly submitted to the jury upon sufficiently supporting evidence.
Defendants claim error in plaintiff's Instruction No. 2, which, they say, is "to the effect that the plaintiff was not bound by her written permit for operation by reason of not reading or examining the same". The foregoing is not a correct statement of the purport of the instruction.
Instruction No. 2 informed the jury "that you may find under Instruction I (plaintiff's verdict-directing instruction) that plaintiff did not give permission or consent to defendants to extract eight of her lower teeth even though you find plaintiff signed for defendants a form described as `Permit for Operation' * * *"if they found and believed these further facts: (1) that plaintiff was referred to defendants by Dr. Martin and delivered the referral card which stated that all upper and both lower second bicuspid teeth were to be removed; (2) that prior to the extractions plaintiff did not read or examine the "Permit for Operation"; (3) that no one consulted with plaintiff about removing all her lower teeth; (4) that prior to the extractions no one advised plaintiff of any intention to remove all her teeth; (5) that under all facts and circumstances plaintiff did not, in fact, consent to extraction of the eight teeth.
Our discussion of the previous point is applicable to and dispositive of defendants' complaint of Instruction No. 2. In our opinion the instruction is not erroneous or prejudicial.
Defendants finally insist that the verdict is excessive. We do not concur in that view. The evidence touching plaintiff's loss and damage justifies the award. The verdict bears no indication of passion or prejudice on the part of the jury.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626044/ | 345 S.W.2d 346 (1961)
Harvey E. HALE, Appellant,
v.
ALLSTATE INSURANCE COMPANY, Appellee.
No. 15646.
Court of Civil Appeals of Texas, Dallas.
April 1, 1960.
Rehearing Denied April 7, 1961.
*347 John F. Harrison and Harlan Harper, Dallas, for appellant.
Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellee.
DIXON, Chief Justice.
Appellant Harvey E. Hale instituted this suit against appellee Allstate Insurance Company to recover medical payments which he alleges come within the coverage of an automobile policy dated May 10, 1957. After a trial before the court without a jury, judgment was rendered that appellant take nothing.
Facts.
The facts have been stipulated.
On May 10, 1957 appellee issued to appellant a policy of insurance for a period of one year which policy provided inter alia for medical payment coverage in the amount of $2,000. At the time appellant was the owner of a 1951 Mercury automobile which is described in the policy. This policy will be referred to hereinafter as the Mercury policy.
The original Mercury policy contained these provisions:
"Sub-Part A.
"Coverage C1Medical Payments Automobile. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
"Division One. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury' caused by accident, while occupying or through being struck by an automobile; * * *
"Exclusions: This policy does not apply under this Sub-Part A to bodily injury: * * * (b) sustained by the named insured or a relative (1) while occupying an automobile owned by the named insured or any relative, other than an owned automobile, * * *".
In Endorsement No. 222, attached to the policy, "owned automobile" is defined as follows: "`Owned Automobile' means
(a) a private passenger or utility automobile described in the policy, * * *348 (c) a private passenger or utility automobile * * * ownership of any of which is acquired by the named insured during the policy period. (2) The company insures all private passenger or utility automobiles or trailers owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days following such date; and includes a temporary substitute automobile."
Until September 18, 1957 appellant owned no other vehicle than the 1951 Mercury, but on said date he purchased a 1957 Ford half ton pick-up truck. He immediately notified appellee of his purchase of the truck and was issued a second policy covering a period of a year, in which policy the 1957 Ford truck is described. This second policy did not provide medical payment coverage.
At the time appellant bought the Ford truck Endorsement No. 214 was added to appellant's Mercury policy. The endorsement contains this provision:
"214. Exclusion of Specified Automobile.
"Except with respect to bodily injury under Coverage C1Medical Payments Automobile, resulting from the named insured or any relative thereof being struck by an automobile if such coverage is afforded, it is agreed that the policy does not apply to the automobile described below or any automobile acquired as a replacement thereof."
The "automobile described below" is the 1957 Ford half ton pick-up truck acquired by appellant on September 18, 1957.
It is undisputed that on September 18, 1957 and at all times subsequent thereto, appellee insured all motor vehicles (two in number) owned by appellant Hale.
On October 15, 1957 while appellant, his wife and children were riding in the 1957 Ford truck in Dallas County, Texas, they sustained injuries in a collision between the Ford truck and an automobile being driven by one James Robert Hulse. In connection with their injuries reasonable and necessary doctor's, hospital, and drug expenses were incurred in the amount of $933.50.
In a suit against Hulse, appellant in his petition included some of the items of medical expenses involved in this case. The suit was later settled, appellant receiving from Hulse a sum of money as compensation for the injuries of himself and family. Appellant executed a release to Hulse. Appellee in this case does not claim a right of subrogation for any amounts of money received by appellant from Hulse in reimbursement for medical expenses. It is conceded that appellant took all necessary steps properly to present his claim to appellee. Appellee then and now denies liability.
Opinion.
Appellant in four points on appeal contends that the court erred in holding that (1) the medical pay provisions of the Mercury policy did not cover appellant and his family while occupying the 1957 Ford truck, and (2) the 30 day automatic coverage provisions on the Mercury did not apply to the 1957 Ford truck; and that the court erred in failing to hold that (3) appellant proved a payable loss under the medical pay provisions of the Mercury policy; and (4) appellant and his family were "struck by an automobile", within the terms of the policy, therefore entitled to coverage under the medical payment provisions contained in the policy.
Since the policy of September 18, 1957, issued to appellant when he acquired the Ford truck, does not include coverage for medical expenses, we must look to the Mercury policy to determine whether appellant has any insurance coverage for medical expenses incurred as a result of the injuries he suffered in the automobile collision of October 15, 1957.
*349 We call attention to the fact that the Mercury policy, though it describes the 1951 Mercury automobile, is not limited in its coverage to medical expenses incurred while appellant or his relatives were passengers in the 1951 Mercury. Section C1. Medical PaymentsAutomobiles, Division One, hereinbefore quoted, expressly provides coverage for appellant and his relatives "while occupying or through being struck by an automobile" regardless of whether they may be riding in the Mercury automobile when they sustain injuries.
We also call attention to the fact that Endorsement No. 214, "Exclusion of Specified Automobile", which was attached to the Mercury policy when appellant bought the Ford truck in September 1957, makes an exception to the exclusion of the Ford truck from coverage. It precedes the words of exclusion with this proviso: "Except with respect to bodily injury under Coverage C1Medical paymentsautomobile resulting from the named insured or any relative thereof being struck by an automobile if such coverage is afforded * * *." This seems to us to mean plainly that coverage of the Ford truck is not excluded as to medical payments provided under the C1 Section of the policy.
We call attention further to Endorsement No. 222 where in connection with the definition of "owned automobile" it is provided that the term includes a private passenger or utility automobile acquired by the insured during the policy period provided: "(2) The company insures all private passenger or utility automobiles * * * owned by the named insured on the date of acquisition and * * * notifies the company within 30 days following such date:" It is undisputed that after acquiring the Ford truck on September 18, 1957 appellant owned only two motor vehicles, that appellee carried insurance on "all" of them (though the second policy did not provide for medical payments), and that appellant notified appellee of his acquiring the Ford truck within 30 days.
Appellee in three counter-points says that notwithstanding the provisions above referred to, there is no liability in this case cast on the insurance company for these reasons:
1. Under the "Exclusions" in the original policy it is provided that the policy does not apply to bodily injury sustained by appellant or a relative "while occupying a car owned by the named insured or any relative, other than an owned automobile". Appellee says this language is clear. When taken in connection with the definition of "owned car" it means that coverage is provided for appellant and his relatives while occupying, or through being struck by an automobile, except those owned by the insured and not described in the policy. The Ford truck is not described in the policy in question.
2. Appellant is not entitled to coverage under the newly acquired automobile provision of Endorsement 222, says appellee, because he took out a separate policy on his Ford truck, and at the same time an endorsement was attached to his first policy expressly excluding the Ford truck from coverage under the first policy.
3. Endorsement 214 must be interpreted to mean that coverage is excluded while insured is occupying an automobile; it makes an exception to exclusion only with respect to medical payments if the insured is "struck by an automobile". That exception does not apply here, says appellee, because it was appellant's Ford truck that was "struck by an automobile", not appellant himself or his relatives. In other words appellant and his relatives are covered only when they themselves are struck by an automobile which makes actual physical contact with their persons, as for instance when as a pedestrian the insured is hit by an automobile.
*350 In our opinion the provisions of Sub-Part A, of the Mercury policy hereinbefore quoted, provide coverage for medical payments to appellant resulting from an accident occurring under the circumstances presented in this case. We do not agree with appellee that the meaning of the language used under "Exclusions" is clear when interpreted in connection with the definition of "owned automobile". If the language was intended to mean what appellee contends for, we consider it ambiguous. And if it is ambiguous it must be construed in favor of appellant. Willingham v. Fidelity & Casualty Co. of N. Y., Tex.Civ.App., 288 S.W.2d 884.
It seems to us that the effect of Endorsement 214 is to exclude the Ford truck from coverage under the Mercury policy except as to medical payments. The effect of the exception expressly provided in the endorsement is to include the medical payment coverage on the Ford truck.
We do not agree with appellee that the words "being struck by an automobile" should be given the narrow construction for which appellee contends. Appellee cites the case of Johnston v. Maryland Casualty Co., 22 Wash.2d 305, 155 P.2d 806. However we believe that the facts of this case, and a proper construction of the particular provisions of the Mercury policy are controlled by the principle that words and phrases in an insurance contract, in the absence of a definition, will be given their ordinary and popular meaning. Bankers Life & Loan Co. v. Eighinger, Tex.Civ. App., 226 S.W.2d 248; Hall v. Mutual Benefit Health & Accident Association, Tex.Civ.App., 220 S.W.2d 934; Davis v. National Casualty Co., 142 Tex. 29, 175 S.W.2d 957. We think that when a person driving his own car is injured in a collision with another automobile, he has been struck by an automobile, though it may have been his own automobile which struck him as a result of the collision with the other automobile. Maness v. Life & Casualty Ins. Co. of Tenn., 161 Tenn. 41, 28 S.W.2d 339.
We do not agree with appellee that Endorsement 214, "Exclusion of Specified Automobile" prevents coverage under the Mercury policy notwithstanding the newly acquired-automobile provision. It is undisputed that appellant did acquire a new car during the term of the Mercury policy. It is undisputed that he notified appellee within thirty days. And it is undisputed that appellee carried insurance on "all", that is, both of appellant's automobiles.
Appellee says that the provision is not applicable here because appellant had taken out a separate policy on the Ford truck. But it is to be remembered that said separate policy did not include coverage for medical expenses. Appellant did not take out additional coverage for medical expenses, and a good reason why he did not need to do so is that he already had coverage for medical expenses under the newly-acquired-automobile provision of Endorsement 214 of the Mercury policy.
Appellant's four points on appeal are sustained. Appellee's three counter-points are overruled.
The judgment of the trial court is reversed and judgment is here rendered that appellant recover the sum of $933.50 principal, plus interest and costs.
On Rehearing
On June 17, 1960 on motion of appellee we submitted a certified question to the Supreme Court of Texas as follows:
"Did Endorsement #214 preserve or exclude Medical Payments coverage under the policy on the Mercury automobile for injuries sustained by the insured and his family while occupying the Ford truck when it was in a collision with the automobile of a third person?"
On March 8, 1961 the Supreme Court answered as follows:
"* * * our answer to the certified question is that Endorsement No. *351 214 did preserve plaintiff's rights under the policy covering the Mercury automobile to recover for the medical expenses sued for." See 344 S.W.2d 430, 434.
In view of the answer given by the Supreme Court we overrule appellee's motion for rehearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626078/ | 464 So. 2d 459 (1985)
STATE of Louisiana
v.
Wash MULLINS, Jr.
No. KA 84 0882.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
Ossie Brown, Dist. Atty. by Brenda Creswell, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
Kathleen S. Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant.
Before COLE, CARTER and LANIER, JJ.
*460 LANIER, Judge.
The defendant, Wash Mullins, Jr., was charged by grand jury indictment with second degree murder in violation of La.R.S. 14:30.1. He pled not guilty. After a trial by jury, he was found guilty and was sentenced to serve life imprisonment at hard labor in the custody of the Louisiana Department of Corrections without benefit of probation, parole or suspension of sentence. This appeal followed.
FACTS
Esther Mae Walker (nicknamed Jean) lived with the defendant for approximately seven years prior to leaving him in April of 1983. After Walker left the defendant, she occasionally stayed with Jessie London.
On July 1, 1983, Walker asked London to drive her to her sister's home on 73rd Street in the Scotlandville community of East Baton Rouge Parish, Louisiana. When London and Walker reached the neighborhood where Walker's sister lived, they observed the defendant, who also observed them. London tried to elude the defendant, but the defendant followed them in his vehicle. London was in the inside southbound lane of Scenic Highway when he had to stop for a red light at Scenic's intersection with 72nd Street. The defendant drove his vehicle adjacent to the right side of the London vehicle in the other lane of traffic. The defendant exited his vehicle and fired a shot into the London vehicle through its right front window. London and Walker exited the London vehicle through the left front door. The defendant went around the London vehicle, confronted London and shot him in the chest. London staggered across the street to an auto repair business and sought help. Walker had fallen to the ground, and the defendant approached her and fired shots into her until his gun was empty.
The defendant got into his vehicle, departed the scene of this incident and went to the home of his sister and brother-in-law. The defendant's relatives persuaded him to turn himself in. He did so at the Scotlandville substation of the East Baton Rouge Parish Sheriff's Office. Upon request, the gun used in this incident was turned over to the police. The defendant was subsequently released to officers of the Baton Rouge City Police Department to whom he gave a statement.
CONSTITUTIONALITY OF ACT 495 OF 1983
(Assignment of Error 1)
Prior to Act 495 of 1983, La.C. Cr.P. art. 799 provided for twelve peremptory challenges for a defendant in a trial of an offense punishable by death or necessarily by imprisonment at hard labor. Act 495 reduced that number to eight. The defendant is charged with committing the offense of second degree murder on July 1, 1983. The effective date of Act 495 of 1983 was August 30, 1983. La. Const. of 1974, art. III, § 19. The trial of this case commenced on January 16, 1984. The defendant was only allowed eight peremptory challenges at the trial.
The defendant contends Article 799, as amended by Act 495 of 1983, is unconstitutional because it deprives him of his right to a full and effective voir dire examination and his right to an impartial trial. In the alternative, the defendant contends that if Article 799, as amended, is constitutional, its application to him is unconstitutional because the offense for which he is charged occurred prior to the effective date of the amendment.
This assignment of error is without merit. State v. Bennett, 454 So. 2d 1165 (La. App. 1st Cir.1984), writ denied, 460 So. 2d 604 (La.1984).
SUFFICIENCY OF EVIDENCE
(Assignment of Error 3)[1]
The defendant filed a motion for a post verdict judgment of acquittal, pursuant to *461 La.C.Cr.P. art. 821, contending the evidence presented at trial did not permit a finding of guilty of second degree murder or, in the alternative, the evidence viewed in the light most favorable to the State only supported a conviction of manslaughter because the State failed to prove the essential element of specific intent. In brief, the defendant contends that at the time he shot Walker his blood was heated and passion controlled his actions because he had argued with Walker over a substantial sum she had taken from him, she had cursed him and she had used his photograph to put a voodoo curse on him.
In State v. Mathews, 375 So. 2d 1165 (La. 1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard for the appellate review of facts in criminal cases has been made statutory. La.C.Cr.P. art. 821; State v. Captville, 448 So. 2d 676 (La.1984); State v. Korman, 439 So. 2d 1099 (La.App. 1st Cir.1983).
A plea of not guilty places upon the State the burden of proving beyond a reasonable doubt each element of the crime with which the defendant is charged. La. R.S. 15:271; La.C.Cr.P. art. 804(A)(1); State v. Humphrey, 412 So. 2d 507 (La. 1981); State v. Gomez, 433 So. 2d 230 (La. App. 1st Cir.1983), writs denied, 440 So. 2d 730 and 441 So. 2d 747 (La.1983). The crime of second degree murder, as applicable in the instant case, is defined in La.R.S. 14:30.1, as follows:
Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm;
...
The testimony of London and the other State witnesses shows that on July 1, 1983, at approximately 6:00 p.m., the defendant, Wash Mullins, Jr., shot at Walker while she was sitting in the front right seat of London's automobile while the automobile was stopped for a red light at the intersection of 72nd Street and Scenic Highway in East Baton Rouge Parish, Louisiana. Thereafter, Mullins walked around London's car and shot Walker several more times as she was lying on the road surface in the intersection. The parties stipulated if Dr. Deborah Cavalier were called to testify, she would say she performed an autopsy on Esther Mae Walker, a 29 year old black female, on July 2, 1983, and the cause of Walker's death was hypovolemic shock secondary to gunshot wounds of the chest and upper back. In addition, Mullins gave the following testimony at the trial:
Q. Well, tell me what you did.
A. Well, I shot through the glass.
Q. How many times?
A. One.
Q. Were you still in your car then or out of your car?
A. I had got out.
Q. Okay, and then what did you do after you shot once through the glass?
A. I went around on the driver's side.
Q. Why did you go around to the driver's side; because that's where they were?
A. Yeah.
Q. Okay, and when you walked around on the driver's side, you had to walk around Jessie London's car. Is that right?
A. Right.
Q. All right, when you got around the car, where were they?
*462 A. Jessie London was standing back. She was had fell on the ground.
Q. Okay, what happened then?
A. That's when I shot her.
Q. How many times?
A. They say four but I don't really know.
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(1). Specific criminal intent is that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Although intent is a question of fact, it need not be proven as a fact and may be inferred from the circumstances of the transaction. La. R.S. 15:445. The evidence showing Mullins shot at Walker through the window of the car in which she was riding, walked around the London vehicle and subsequently shot Walker several times while she was lying on the road surface is sufficient to prove he had the specific intent to kill or to inflict great bodily harm. State v. Noble, 425 So. 2d 734 (La.1983).
The defendant contends his testimony demonstrates he was acting in "sudden passion" or "heat of blood" caused by provocation and he can only be guilty of manslaughter. Manslaughter, for purposes of this argument, is defined in La.R.S. 14:31 as follows:
Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; ...
"Heat of blood" and "sudden passion" are not elements of the offense of manslaughter but are mitigating circumstances which may reduce the grade of a homicide. State v. Tompkins, 403 So. 2d 644 (La.1981).
The defendant testified that on the third Sunday of April of 1983, Walker told him she was going to the "country" to see her mother with her sister. After going to church, the defendant went "across the river" to a nightclub. At the club he saw Walker and London together. The defendant returned home, but Walker did not come home until 1:00 the next morning. The following day London was at the defendant's home talking with Walker when the defendant came home for lunch. When the defendant came home from work that night, he had an argument with Walker about London and Walker cursed him and said she would get even with him. The following Friday the defendant gave Walker $105 for groceries, $150 for rent and put $100 under his mattress. The next day he went fishing. When he returned home, Walker and her clothes were gone. Walker did not pay the rent nor buy groceries. The $100 under the mattress was gone. Defendant had also given Walker $2,000 to put in a savings account, and that money was gone also. In June of 1983, Walker called the defendant at his job. The defendant asked her about the money, and she said don't bother me about that. She also told him "I got you where I want you", go home and look at your dresser and you will see one of your pictures is gone. The defendant got all "confused" and could not sleep. He figured it was a "hoodoo". The next time he saw Walker was on July 1, 1983. He followed Walker and London because he wanted to talk to Walker about getting his money back. When the two vehicles were side by side at the red light, the defendant asked Walker about the money and she cursed him and said we are going to get more out of you. Defendant testified he had no intention to harm either London or Walker but only to scare them and that he was "out of my *463 mind; couldn't think." Defendant also testified "I just went berserk."
In contrast to the defendant's testimony, London testified that when Walker rolled her window down the defendant produced a pistol. Walker rolled the window back up. The defendant then got out of his car and shot through the window. London did not hear the defendant say anything to Walker about money and specifically testified Walker did not curse the defendant.
The jury's verdict indicates it accepted London's version of the events and rejected the defendant's conflicting testimony. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); State v. Kent, 434 So. 2d 1258 (La.App. 1st Cir. 1983), writ denied, 440 So. 2d 727 (La.1983). A determination of the weight of the evidence is a question of fact. Korman, 439 So.2d at 1101. This court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const. of 1974, art. V, § 10(B). This court is constitutionally precluded from acting as "thirteenth juror" in assessing what weight to give evidence in criminal casesthat determination rests solely on the sound discretion of the trier of fact. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 452 So. 2d 234 (La.App. 1st Cir.1984), writ not considered, 456 So. 2d 161 (La.1984), reconsideration not considered, 458 So. 2d 471 (La. 1984). The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. Tompkins, 403 So.2d at 647. The evidence of record is sufficient to support the jury verdict. Cf. State v. Johnson, 426 So. 2d 95 (La.1983).
This assignment of error is without merit.
DECREE
For the foregoing reasons, the conviction and sentence are affirmed.
AFFIRMED.
NOTES
[1] In assignment of error 2, the defendant contended the district court committed error when it denied his motion for a mistrial due to inadmissible references to him having been in jail. Because this assignment of error was not briefed, it is considered abandoned. Uniform RulesCourt of Appeal, Rule 2-12.4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626088/ | 464 So. 2d 284 (1985)
IT CORPORATION
v.
COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
Nos. 84-C-1227, 84-C-1233.
Supreme Court of Louisiana.
February 25, 1985.
*285 R. Gray Sexton, Commission on Ethics for Public Employees, Baton Rouge, for Com'n on Ethics for Public Employees.
Charles S. McCowan, Jr., Pamela C. Walker, Kean, Miller, Hawthorne, D'Armons, McCowan & Jarman, Baton Rouge, for IT Corp.
CALOGERO, Justice.
This case presents a res nova question concerning the power and authority granted the Commission on Ethics for Public Employees by the Governmental Ethics Code (the Code). Specifically, the question is whether the Commission, after first finding a "state employee" to have violated provisions of the Governmental Ethics Code (in this instance La.R.S. 42:1112(A) and 1118) may not only cancel and rescind the contract between the employee and the state agency, but order, as well, return to the contracting state agency the consideration *286 received upon performance of the contract.
The basic facts giving rise to this action, stated simply, are that IT Corporation (ITC) was under contract with the state, through the Department of Natural Resources (DNR), to study and recommend an appropriate plan and site for a "Model Regional Hazardous Waste Recovery and Disposal Facility for Louisiana." The consideration for the study was $375,598.00. While under contract, ITC negotiated to buy the very land it ultimately recommended as the appropriate site for the disposal facility. ITC, while under contract with the state, also employed and paid compensation to one who was simultaneously employed by the state. After receiving complaints about ITC's activities, the Commission commenced an investigation of ITC and ultimately presented charges of Ethics Code violations in connection with these two matters.
A thorough and detailed recitation of the facts appears in the Commission's "Findings of Fact" in its April 22, 1983 opinion. We quote those "Findings of Fact", but have taken the liberty, for purpose of clarity, of rearranging in chronological order the eleven paragraphs and multiple subparagraphs:
"¶ 11(a) By correspondence of January 27, 1979, Ned A. Cole wrote to IT Corporation inviting IT Corporation to `discuss [the] opportunity' for IT Corporation to effectuate an expansion into Louisiana to assist in providing a solution to the waste disposal `problem.'
"¶ 11(b) By correspondence of March 30, 1979 Ned A. Cole forwarded to IT Corporation a preliminary proposal that he, Ned A. Cole, had prepared, consisting primarily of an outline for the subsequent submission by IT Corporation to the State, of the `Proposal for a Model Regional Hazardous Waste Recovery and Disposal Facility.'
"¶ 11(c) By cover letter of April 18, 1979 IT Corporation submitted to the State the `Proposal for a Model Regional Hazardous Waste Recovery and Disposal Facility.'
"¶ 11(d) The above-mentioned `Proposal' contains, among other things, declarations that Ned A. Cole, through Research Associates, would serve as a subcontractor to IT Corporation if it was awarded by the State a contract for the feasibility study and that `Ned Cole serves as Consultant to the Department of Natural Resources for projects including ... the hazardous waste management program and the formulation of rules and regulations governing hazardous waste....'
"¶ 11(e) Karen Cole, an employee of the Department of Natural Resources, prepared for execution by the Department of Natural Resources and IT Corporation a contract for the `Development of a Model Regional Hazardous Waste Recovery and Disposal Facility for Louisiana' dated April 25, 1979 and attached thereto as `Appendix A' a `Statement of Work' based substantially upon the information contained in the IT `proposal.'
"¶ 11(f) During the course of the Regular Session of the 1979 Louisiana Legislature, the Legislature was invited by House Concurrent Resolution No. 79 to suspend applicable provisions of the public bid law and the professional services contract law so as to authorize the Department of Natural Resources to enter into the `sole source' contract of April 25, 1979 with IT Corporation, which concurrent resolution failed to be adopted. Karen Cole thereafter prepared a `Request for Proposal for Conduct of a Study to Develop a Model Regional Hazardous Waste Recovery and Disposal Facility for the State of Louisiana', dated May 29, 1979, with cover letter of that date, and forwarded the request for proposal to a number of industrial concerns including IT Corporation; the `Statement of Work' contained in and made an integral part of the RFP was extracted by Ms. Cole substantially from the earlier proposal submitted by IT Corporation to the State and the subsequent `sole source' contract of April 25, 1979.
"¶ 11(g) By correspondence of May 31, 1979 Ned A. Cole wrote to IT Corporation observing that a major competitor of IT *287 Corporation, Catalytic Inc. had `not requested a copy of the RFP[and that] I doubt they are aware of the proposed guides for the project.'
"¶ 11(h) That same day, in separate correspondence of May 31, 1979, Ned A. Cole advised IT Corporation that he had `lined up' `Mayes' and `Smith' (two Research Associates employees or `associates') for the next visit to Louisiana by IT Corporation's representative, John Theiss.
"¶ 11(i) By letter of June 8, 1979, Ned A. Cole advised a representative of IT Corporation that he had caused RFP's to be sent to other industrial concerns in order to `insure that [there was no] criticism....' Cole notes during the course of his letter that he had answered in the `affirmative' a call concerning the RFP in which the question was asked whether or not the 60 day period meant that the project had to be completed in 60 days.
"¶ 11(j) On June 17, 1979 IT Corporation entered into the `subcontract' with `Research Associates of Louisiana' (signed by Ned A. Cole on behalf of Research Associates of Louisiana) which had attached to it an exhibit outlining the scope of services and referencing certain subparagraphs of the initial `Proposal for a Model Regional Hazardous Waste Recovery and Disposal Facility' submitted by IT Corporation to the State prior to April 25, 1979.
"¶ 11(k) At the time these events were occurring, Research Associates was under contract with the Department of Natural Resources for `special services, development of hazardous waste management system' by which Research Associates was required, generally, to prepare a hazardous waste management plan by developing the permit system and by development of standards as required by the interagency agreement with OSTEP: simultaneously, Research Associates was preparing for submission to the state a proposal in response to an RFP No. 21600-80-02 issued July 20, 1979 for an $830,000 contract to assist in the implementation of the State hazardous waste management program and, among other things, to perform permit evaluation germaine [sic] to the administration of the hazardous waste management program. This contract was in fact awarded to Research Associates, Inc. in September of 1979.
"¶ 11(1) By document dated June 27, 1979, IT Corporation submitted to the Department of Natural Resources its `Proposal for the Development of a Model Hazardous Waste Facility.'
"¶ 11(m) Other proposals were submitted for consideration.
"¶ 11(n) Sometime between July 9 and July 13, 1979, Karen Cole and Jim Porter, another employee of the Department of Natural Resources, prepared `checklist' evaluations of the several proposals submitted and thereafter recommended to the Secretary of the Department of Natural Resources that an award be made to IT Corporation.
"¶ 11(o) IT Corporation did not submit the lowest price for the proposal and, of those that were considered, submitted the next to highest price for the work to be performed.
"¶ 11(p) The proposal previously submitted by IT Corporation of June 27, 1979 listed as a proposed subcontractor Ned A. Cole who was represented as then `serv[ing] as Consultant to the Department of Natural Resources....'
"¶ 11(q) A statement of the work to be performed in the proposal submitted by IT Corporation was essentially the same statement of work contained in its earlier `Proposal for a Model Regional Hazardous Waste Recovery and Disposal Facility' and as contained in the `Statement of Work' integrated into the April 25, 1979 sole source contract.
"¶ 11(r) Karen Cole prepared a contract dated July 17, 1979, executed that date by the Secretary of the Department of Natural Resources rendering to IT Corporation an award of the contract for the preparation of a `Model Regional Hazardous Waste Recovery and Disposal Facility for Louisiana': for the price of $375,598.
*288 "¶ 1. On September 18, [report was dated September 20, 1979] IT Corporation submitted to the Department of Natural Resources a report entitled `Study Report: Model Regional Hazardous Waste Recovery and Disposal Facility' pursuant to its contract with the Department of Natural Resources designated by Nos. DNR XXXXX-XX-X, OCR431-001.
"¶ 2. In that report, IT Corporation recommended the selection and designation of a tract of land for location of the proposed Model Regional Hazardous Waste Recovery and Disposal Facility, described therein as `Area I', and being generally a tract of land theretofore owned by Mr. and Mrs. Shelby Robert (hereinafter referred to as the `Robert tract').
"¶ 3. Prior to the time the feasibility report was submitted to the Department of Natural Resources, IT Corporation, through its agents and representatives, made numerous contacts with Mr. and Mrs. Robert, individually, and through their attorney, Mr. Vincent Sotile, and actively engaged in negotiations with the Roberts, through their attorney, for the execution of an option for IT Corporation to acquire title to the Robert tract.
"¶ 4. Prior to September 18, 1979, and during the period of time that IT Corporation was in the process of preparing and formulating the feasibility report, IT Corporation procured soil borings on the Robert tract of land, had soil analyses done, and made or caused to be made numerous site inspections of the Robert tract.
"¶ 5. After submission of the feasibility report to the Department of Natural Resources on September 18, 1979, IT Corporation and Mr. and Mrs. Shelby Robert entered into an option agreement for the acquisition by IT Corporation of the Robert tract with an effective date of September 25, 1979. The option agreement was prepared by Mr. Sotile on behalf of both IT Corporation and the Roberts sometime prior thereto.
. . . . .
"¶ 11(s) IT Corporation submitted to the Department of Natural Resources on September 21, 1979 its invoice for the services performed pursuant to the feasibility study in the amount of $375,598 and, on the basis of recommendations by Karen Cole as to the correctness of the amount, James M. Hutchinson, a Department of Natural Resources official `okayed' payment to IT Corporation of that amount.
. . . . .
"¶ 6. IT Corporation was paid by the State for its preparation of the feasibility study on October 9, 1979 the agreed sum of $376,000.
. . . . .
"¶ 11(t) Though a `performance evaluation' report was executed by James M. Hutchinson on October 15, 1979, Mr. Hutchinson did not sign the report or affix his initials to it and the performance evaluation report was prepared by Karen Cole.
. . . . .
"¶ 7. By agreement entitled `subcontract' dated June 17, 1979, IT Corporation and Research Associates of Louisiana, Inc. (hereinafter referred to as `Research Associates') entered into a contract by which Research Associates was to render to IT Corporation services therein described but consisting generally of `site location analysis and recommendation' pertaining to IT Corporation's `feasibility study' contract with the Department of Natural Resources.
"¶ 8. Pursuant to this contract, IT Corporation agreed to pay Research Associates for its services the sum of $53,836.
"¶ 9. At the time IT Corporation agreed to pay this sum to Research Associates, and entered into the above-mentioned contract, and thereafter including and through the time Research Associates, Inc. was indeed paid by IT Corporation on October 22, 1979 the sum of $53,836, Research Associates, was a party to contracts with the Department of Natural Resources by which Research Associates, primarily through its principal, Ned A. Cole, rendered essential and comprehensive services in the field of hazardous waste management, including particularly the establishment and maintenance *289 of a comprehensive and integrated hazardous waste management program by the Department of Natural Resources.
"¶ 10. IT Corporation through its agents and representatives knew of the existence of one or more of these contracts at the time it entered into its `subcontract' with Research Associates, Inc.
. . . . .
"¶ 11(u) On the following dates payments were made by Research Associates, Inc. to Karen D. Cole: (1) July 2, 1979 $6,400, (2) August 2, 1979$1,200, (3) September 15, 1979$1,200, (4) January 19, 1980$1,000, (5) April 10, 1980$3,000, (6) July 1, 1980$500, (7) August 9, 1980 $500, (8) August 16, 1980$500, (9) October 14, 1980$750 and (10) November 20, 1980$1,750."
The Commission charged ITC with violating Section 1112(A) and Section 1118 of the Governmental Ethics Code.[1] Section 1112(A) prohibited a state employee from participating in a transaction involving the state in which he has a personal substantial economic interest. Section 1118 prohibited a state employee from giving anything of economic value, directly or indirectly, to any other state employee which the latter is prohibited from receiving under the Code (here §§ 1113 & 1114 prohibited a state employee from receiving compensation for services rendered from one who has a financial relationship with or is effected by the employee's agency.)
The Commission set a hearing for May 27 and 28, 1982. Prior to that hearing ITC secured supervisory writs to the Court of Appeal questioning the Commission's jurisdiction over ITC. In its decision of December 16, 1982, holding that the Commission had jurisdiction over ITC and remanding the case to the Commission for hearing, the Court of Appeal made the following additional findings: First, that "state employee" as defined in the Code, prior to amendment in 1979, included private corporations as well as individuals, and therefore a private corporation (ITC) could be subject to the jurisdiction of the Commission; second, ITC's execution of the contract with DNR constituted "performance of a state function under the authority of the laws of this state" thereby subjecting ITC to the jurisdiction of the Commission; third, ITC was a state employee on the date the real estate option to buy the recommended site for the waste disposal facility became effective and, therefore, acquired a "personal substantial economic interest" in its contract in violation of the Code; fourth, the research corporation with which ITC subcontracted was a "state employee" within the meaning of the Code; fifth, the powers granted the Commission did not infringe upon the exclusive jurisdiction of DNR; and sixth, the permits issued to ITC by the Environmental Control Commission were "licenses" within the meaning of the Code and, as such, were immune from either cancellation or rescission by the Commission. Neither party sought a rehearing in the Court of Appeal or writs to this Court from that judgment. Commission on Ethics for Public Employees v. IT Corporation, 423 So. 2d 695 (La.App. 1st Cir.1982).
On remand, and after the hearing, the Commission found ITC in violation of the two sections of the Code (§ 1112(A) and § 1118) with which they were charged, imposed maximum fines of $5,000.00 for each of the two violations, declared void the July 17, 1979 contract between DNR and ITC, and ordered rescission of the contract and repayment of the $375,598.00 paid to ITC upon completion of that contract.
ITC appealed from that Commission determination. The Court of Appeal, First Circuit, affirmed the portions of the Commission's decision which found that ITC had violated two sections of the Governmental Ethics Code and which imposed the two $5,000.00 fines. By refusing to upset the Commission's action which ordered rescission of the contract the Court of Appeal, at least impliedly, affirmed that portion *290 of the Commission's findings. However, the Court of Appeal vacated and set aside the portion of the order requiring ITC to repay the $375,598.00 contract price. IT Corporation v. Commission on Ethics for Public Employees, 453 So. 2d 251 (La.App. 1st Cir.1984).
Both parties sought writs from the Court of Appeal decision. Because the case presented res nova legal issues, we granted writs to both applicants, the Commission on Ethics for Public Employees and IT Corporation. Upon review of the entire case, we find that the Court of Appeal was in every respect correct in its judgment.
The primary question which prompted this Court to grant writs was whether the Court of Appeal might have been wrong in determining that the Commission could not order ITC to return the $375,598.00 contract price notwithstanding that they had legally "cancelled and rescinded" the contract "as being void."
The Court of Appeal's response to the Commission's contention that they had the legal power and authority to do so was that "the code does not expressly grant to the Commission the authority to order the return of the contract price." We conclude that the Court of Appeal was correct.
There were only two pertinent provisions of the old Ethics Code. La.R.S. 42:1121(C) and (F).[2] La.R.S. 42:1121(C), admittedly entitled "Rescission of State Action", simply provides that "the Commission may, in addition to any other available rights of rescission, cancel or rescind any state contract without contractual liability to the state where: `(1) the Commission has found that a violation of this part has influenced the making of such state contract; and (2) the Commission finds under all of the circumstances that the interests of the state so require ...'" (emphasis provided)
La.R.S. 42:1121(F), where provision is made to facilitate the recovery of damages, does not allow the Commission to order repayment of the contract price. That statute merely allows the Commission (or the Attorney General or District Attorney) to bring a civil action in the district court against any state employee or former state employee who shall, to his economic advantage, have acted in violation of the code, to recover on behalf of the state an amount equal to such economic advantage.
The Commission's position, that they may order return of the contract price, is based upon "implied" authority. "Why should two separate judicial proceedings be required to adjudicate one case," they argue. And further they contend that "To deny the power is to impair the future capacity of the Commission to effectively deal with codal violations."
Their argument in this regard may not be entirely implausible. Nonetheless it is one which better directs itself to the Legislature, which so far has not reposed in the Commission this essentially judicial or quasi-judicial power.
What authority the Legislature has given the Commission, however, is a substantial one. They may cancel or rescind a state contract without contractual liability to the state. And, as the Commission points out in brief the authority to "cancel" is distinguishable from the authority to "rescind" a contract. To "cancel" a contract is to set aside an unperformed agreement and to relieve one or both parties from the responsibility of executing the contract. To "rescind" suggests the authority to set aside and vacate fully or partially consummated obligations and to restore the State to the position it was in prior to the execution of the agreement. "Rescind" has been given the following meaning:
... [t]o declare a contract void in its inception and to put an end to it as though it never were.... Not merely to terminate it and release parties from further obligations to each other but to abrogate it from the beginning and restore parties to relative positions which they would have occupied had no *291 contract ever been made.[3] (Emphasis added.)
The Commission has cancelled and rescinded the contract in this case. That determination has been reviewed and approved by the Court of Appeal and, now in this opinion, by this Court.
ITC may not rely upon that contract for retention of the $375,598.00 should the Commission (or the Attorney General or the District Attorney) bring a civil action for damages (R.S. 42:1121(F)), or return of the consideration paid under the contract. Such a lawsuit, if filed, will present the proper time for the courts to decide whether ITC Corporation has enjoyed an economic advantage and the extent thereof, and/or whether the state should be permitted to recover the $375,598.00 or some portion thereof. In that lawsuit due consideration can be given to ITC's argument that they have earned all or part of the contract price on the basis of quantum meruit. Any other viable defenses, factually or legally, might also then be asserted and adjudicated in that litigation.
For the foregoing reasons we conclude that the Court of Appeal was not wrong in determining that the Commission could not legally order ITC to return the $375,598.00 contract price which, as we earlier indicated was the major issue which prompted us to grant writs in this case.
There are, however, additional issues which are before us at this time. Those remaining issues presented by the parties here in brief are contained in one additional Commission assignment of error and four ITC assignments of error. We have reviewed and considered each of them and we find them non-meritorious. The Court of Appeal's disposition on each of these assignments was correct.
In the Commission's remaining assignments of error they contend that they have the power and authority to set aside a permit where a code violation has influenced its issuance. Pertinently they want to be permitted to consider cancelling and rescinding the permits issued to ITC by the Department of Natural Resources. The Court of Appeal in its earlier opinion of December 16, 1982 disposed of that contention, resolving that the Commission does not have that power or authority. Commission on Ethics for Public Employees v. IT Corporation, 423 So. 2d 695 (La.App. 1st Cir.1982).
When the Commission did not timely seek writs here from the 1982 Court of Appeal judgment in this matter, that judgment became final. And while it might be argued that since that Court of Appeal decision came about in an interlocutory proceeding it is not binding on this Court now, we are not persuaded by that argument. The Court of Appeal decision concerning the Commission's lack of authority to revoke ITC's permits was a final one, preventing the Commission, on remand, from entering evidence concerning the point or otherwise pursuing that remedy below. Lengthy proceedings have taken place following the Commission's decision not to complain. There is no more reason for us to review now that aspect of the 1982 Court of Appeal decision than there is for us to entertain ITC's argument that the Court of Appeal erred therein finding that they were a "state employee" under the Code, which we also decline to entertain at this time.[4] Accordingly, this assignment of error by the Commission has no merit.
ITC's first and second assignments of error are complaints that the Commission and the Court of Appeal were wrong in finding that the law and the evidence established ITC's violation of Sections 1112(A) and 1118 of the Code respectively, the charges which arose out of ITC's negotiating for and securing options to purchase the land which as the state's consultant ITC recommended as the appropriate site for the disposal facility, and ITC's illegally employing and paying compensation to Research Associates, a state employee at *292 the time. The law and ample evidence in the record support those findings. The Commission and the Court of Appeal were correct in their determination that ITC violated those sections of the Code.
ITC's third assignment of error, a complaint that the Court of Appeal should not (or perhaps did not), affirm the Commission's cancelling and rescinding the contract, likewise is without merit. ITC was found to have violated two sections of the Code, and accordingly, the Commission had the power, which they exercised, to cancel and rescind the contract. As noted earlier in this opinion the power to rescind is the power to set aside and vacate partially as well as fully consummated obligations. The Commission acted within its authority in ordering the contract between DNR and ITC rescinded, and it was not error for them to do so. We read the Court of Appeal opinion as affirming that action of the Commission and we affirm the decision in that respect.
ITC's fourth assignment of error to this Court complains that the Commission erroneously imposed the two $5,000.00 fines. ITC based its contentions in this regard on the argument that the Commission had no authority to impose such fines under the pre-1980 Code.
While ITC is correct that the pre-1980 Code did not authorize the Commission to impose such fines, it did provide for such civil penalties of $5,000.00 for each violation of the Code. But the procedure for pursuing the penalty was by civil action in district court based upon the Commission's finding of a violation of the Code. La.R.S. 42:1121(G). That procedure was changed in the 1979 revisions of the Code to allow the Commission to impose the fines. La.R.S. 42:1153. This latter procedure was utilized in the instant case where all the Commission proceedings occurred after the effective date of the codal revision, as did some of the actions which supported the factual findings of Code violations.
Furthermore, it has not gone unnoticed that these contentions by ITC have not been timely asserted. ITC did not specify this error in their assignments of error which were filed with the Commission as required by law. La.R.S. 42:1142; Uniform Rules of the Courts of Appeal, Rule 3-1.1; Louisiana Court of Appeal, First Circuit, Rule 1. To the contrary, ITC's original assignment of error having anything to do with the imposition of the two $5,000.00 fines dealt only with the harshness of the penalties imposed against them, the maximum fines and return of the contract price. It was not argued at that time that the Commission lacked the authority to impose the fines. Accordingly, we find no merit in this assignment.
ITC's concluding assignments, five and six, are that the Commission did not rule separately upon the proposed findings of fact and of law which had been submitted to the Commission by ITC and that the Commission did not follow the requirements of La.R.S. 49:950 and 42:4.1 et seq. of the Administrative Procedure Act. With respect to the former, the submitted proposed findings of fact and conclusions of law were considered by the Commission. The Commission's own findings of fact and conclusions of law effectively adopted and/or rejected each of the proposals. With respect to the latter, the hearing by the Commission sufficiently comported with the APA requirements. There were no violations of due process of law in the Commission's hearings and deliberations.
Decree
For the foregoing reasons the judgment of the Court of Appeal is affirmed.
AFFIRMED.
DENNIS, J., concurs in part with dissents in part with reasons.
LEMMON, J., dissents in part and assigns reasons.
NOTES
[1] The reference here is to La.R.S. 42:1112(A) and 1118 prior to reenactment of the Code by Acts 1979, No. 443, & 1, effective April 1, 1980. Under the new Code the almost identical provisions appear respectively as Sections 1112 and 1117, of R.S. Title 42.
[2] It is worth noting that the counterpart provision to 1121(C) and 1121(F) in the new Code, are 1152 and 1155, respectively, and that they are essentially similar provisions.
[3] See Blacks Law Dictionary 1471 (Revised 4th ed. 1968).
[4] ITC similarly did not seek writs in this Court after the 1982 Court of Appeal opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626057/ | 345 S.W.2d 69 (1961)
Jack GILLEN, Appellant (Plaintiff),
v.
CITY OF ST. LOUIS, Respondent (Defendant).
No. 48274.
Supreme Court of Missouri, Division No. 1.
April 10, 1961.
*70 Flynn, Challis & Sumner, Thomas W. Challis, Jr., St. Louis, for appellant.
Thomas J. Neenan, City Counselor, Alvin J. McFarland, Associate City Counselor, St. Louis, for respondent, City of St. Louis.
DALTON, Judge.
Action for $25,000 damages for personal injuries alleged to have been sustained by reason of defendant's negligence. The court sustained defendant's motion to dismiss on the ground that the petition failed to state a claim upon which relief could be granted, and dismissed the petition with prejudice. Plaintiff has appealed from the judgment entered against him.
The petition alleged that: "* * * on or about the 23rd day of October, 1959, at a point known as 1206 Olive Street in St. Louis, Missouri, and more particularly described as a point immediately east of an alley which intersects at right angles to Olive Street on the south side thereof and runs directly south therefrom, defendant City constructed, erected and maintained and had the exclusive management and control of a traffic sign attached to a light standard; that said traffic sign was caused, allowed and permitted to fall from said light standard and strike plaintiff who was lawfully upon the public sidewalk there, with great force and violence; that as a direct result thereof plaintiff was seriously and permanently injured as hereinafter specified, and that said occurrence and plaintiff's resultant injuries were directly and proximately caused by negligence and carelessness on the part of defendant."
Defendant's motion to dismiss the petition was based on the ground that: " * * * in paragraph 3 of plaintiff's petition it is alleged that plaintiff's cause of action, if any, arose out of a traffic sign, attached to a light standard, falling and striking plaintiff, the operation, maintenance and control of which is a governmental function performed by the City of St. Louis for the general benefit, health and welfare of the citizens of St. Louis and, under such circumstances, plaintiff is not entitled to any legal redress against defendant while acting in its governmental capacity."
In entering the judgment sustaining the motion to dismiss and dismissing the petition with prejudice, the court indicated that its decision was based upon Blackburn v. City of St. Louis, 343 Mo. 301, 121 S.W.2d 727 and Hiltner v. Kansas City, Mo. Sup., 293 S.W.2d 422. In each of these cases, the city had constructed a device in the street for the purpose of regulating traffic and it was held that the regulation of traffic was a governmental function and that the city was not liable for the negligent maintenance of the device.
Introductory to our discussion of the issues presented, we quote from McQuillin on Municipal Corporations, 3rd Ed., Secs. 53.23, 53.24 and 53.42, as follows: "A municipal government has a double function, first, the private, proprietary function, and, second, the governmental function as the arm or agent of the state. The intermingling of these two functions has resulted in difficulty in determining the boundary line in separating the two. There is substantial unanimity, however, upon the proposition that the incorporated city or town when exercising its private or corporate powers, is liable to respond in damages *71 for the negligence of its officers, agents and employees. * * * On the other hand, negligence in performance is not imputable to a municipal corporation entrusted with public or governmental duties. However, there is a wide divergence in the decisions as to what functions are governmental or public and what are private or corporate, and functions held to be governmental in some jurisdictions are held to be corporate in others. * * * (Section 53.23.)
"The doctrine exempting a municipal corporation from private action for torts resulting from the performance of its governmental functions, steadily adhered to by the most recent judicial decisions, * * * is based on the familiar reason that the undertaking is not to promote the private interests of the municipality as a corporate entity, but rather for the public benefit, and in the performance of such obligation the municipality is a mere public agent, either of the state or of the local community. * * * (Sec. 53.24.)
"A city functions in a governmental capacity in maintaining traffic signs, and in the operation of a traffic light system. * * * however, it has been said, `There is a well-defined distinction between acts connected with the operation of the lights to serve the governmental function and the physical maintenance on the streets of the devices through which the governmental function is served. In the first instance, the police act as agents of the city in its governmental capacity, in which case the city is not responsible, but, in the second, the duty involved is the maintenance of city highways, which is action by the city in its corporate or proprietary capacity for which the city is responsible.'" (Sec. 53.42.) One of the cases cited in support of the last point is Mengel v. City of St. Louis, 341 Mo. 994, 111 S.W.2d 5.
Appellant contends that his petition sufficiently states a claim upon which relief can be granted because "this action is one based upon the defendant's negligent breach of its duty to keep its streets and sidewalks reasonably safe and free of dangerous conditions or obstructions, a proprietary function for which the City is liable in tort." Appellant argues that "the doctrine of governmental immunity is to be restricted rather than extended and, even though it is held that traffic direction is a governmental function, it does not follow that the City is immune from liability merely because the sign, which by negligent construction, erection or maintenance made the sidewalk dangerous and unsafe, happened to be one used by the City in the performance of a governmental function * * *."
In support of the contention that the petition states a claim upon which relief can be granted, appellant cites: Mengel v. City of St. Louis, supra; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Adams v. Kansas City, Mo.App., 266 S.W.2d 771 and Metz v. Kansas City, 229 Mo.App. 402, 81 S.W.2d 462.
These cases were fully considered by this Court in Hiltner v. Kansas City, supra, 293 S.W.2d 422, 425 and the Court there said: "These cases all properly hold that a city is liable in tort for its failure to maintain its streets in a reasonably safe condition. Each case involves the situation where a traveler, either in a car or as a pedestrian, was injured by reason of the failure of the city to mark adequately an obstruction in the street or because it permitted the continued existence of a dangerous defect in the street. However, in each case the obstruction was not an instrumentality used solely for the direction of traffic, or the defect did not pertain to the use of the instrumentality in directing traffic. Therein lies the distinction between those cases and this one." Each of the mentioned cases is distinguishable upon its own peculiar facts and by the further fact that the negligence pleaded was not the negligent performance of a governmental function.
It is well settled in this state that the regulation of traffic is a governmental function. *72 Hiltner v. Kansas City, supra, 293 S.W.2d 422, 425; Prewitt v. City of St. Joseph, 334 Mo. 1228, 70 S.W.2d 916; Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778, 780; Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32; Blackburn v. City of St. Louis, supra, 121 S.W.2d 727. In Auslander v. City of St. Louis, supra [332 Mo. 145, 56 S.W.2d 780], this Court held that: "* * * the maintenance and operation by the city of automatic stop and go signals at street intersections for the purpose of regulating traffic and tending to promote safety is an exercise by the city of its governmental power," and the city cannot be held liable in damages for negligence in this respect.
In Hiltner v. Kansas City, supra, 293 S.W.2d 422, 426, a verticle post and reflector sign at the south end of a safety zone had been previously struck by some vehicle so that said sign and post were no longer clearly visible to drivers of vehicles, and an automobile was caused to pass through the safety zone and to strike and injure the plaintiff. Plaintiff charged that her injuries were due to defendant's negligent maintenance of the post and reflector sign. The Court said: "A safety zone is not in and of itself inherently dangerous. There are no facts alleged from which it could be inferred that the safety zone was not a reasonable device for the regulation of traffic. The only negligence of which the city is charged is that of negligent maintenance of the safety zone in its use as a device for the regulation of traffic, and for that negligence the city is not liable in tort. The petition does not state a cause of action against the city."
In Prewitt v. City of St. Joseph, supra, 70 S.W.2d 916, the plaintiff was injured by falling from his motorcycle when it ran against a stop sign the City had erected as a warning to westbound travelers about to enter a particular street intersection. Plaintiff alleged that defendant was negligent in "maintaining the sign on the street in an obscured condition." Recovery was denied by the court because the sign was intended to regulate traffic, a governmental function.
Blackburn v. City of St. Louis, supra, 121 S.W.2d 727, was a pedestrian's action against the City for injuries sustained as a result of being struck by an automobile on the sidewalk. The automobile had been deflected from its course after colliding with "traffic buttons", about 4 inches high, which had been attached to the surface of the street to designate boundary lines of a safety zone for streetcar passengers. The improvement was authorized by an ordinance providing for such a zone. It was held that the maintenance of the buttons was a governmental rather than a corporate function of the City, since such "traffic buttons" solely served to regulate traffic.
Appellant argues that the case now before us is a case of first impression in this state and that "all cases granting immunity can be distinguished on the grounds that they involved either negligent misdirection of traffic, negligent nondirection of traffic or negligent construction or maintenance of traffic regulators which were intended to be obstructions to the public way."
Appellant cites Dallas v. City of St. Louis, Mo.Sup., 338 S.W.2d 39, 41, in support of his contention that the modern tendency is to restrict rather than to extend the area of governmental immunity. And see 38 Am.Jur., p. 265, Sec. 573; 63 C.J.S. Municipal Corporations § 746, p. 29.
Appellant insists that "the instant case involves a sidewalk in a dangerous condition by reason of an obstruction overhead and the fact that the obstruction happened to be a traffic sign is merely incidental since the defect did not pertain to the direction of traffic."
Appellant has cited a number of other cases from other jurisdictions and relies particularly on Scarpaci v. City of Chicago, 329 Ill.App. 434, 69 N.E.2d 100. In that case a 25 lb. metal stop sign, mounted 6 or 7 feet above the surface between the sidewalk and the street, had for 3 or 4 months *73 been loosely fastened to a pole with only one screw which had worn thin. The sign fell, apparently of its own weight, and injured a child. The Court said: "When the stop sign involved herein, through the absence of proper fastening of the metal plate to the sign post or pole, became dangerous to persons using the public street or the parkway, it became an obstruction or defect in the street for the continuance of which the defendant became liable after reasonable notice, even though the sign post was an instrumentality used by the city in the performance of a governmental function." 69 N.E.2d 100, 103. And see Hillstrom v. City of St. Paul, 134 Minn. 451, 159 N.W. 1076, L.R.A.1917B, 548. It is apparent that these cases are not in accord with the decisions of this Court.
In Illinois, the installation, operation and maintenance of an electric traffic signal is a corporate function so that a municipality is liable for negligence in failing to keep such signals in a proper state of repair. Johnston v. City of East Moline, 338 Ill. App. 220, 87 N.E.2d 22. The 1960 Cum. Supp. to Vol. 18, McQuillin, Municipal Corporations, 3rd Ed., recognizes that this case is contrary to the majority rule stated in Sec. 53.42 of the text. And see 63 C.J.S. Municipal Corporations § 782, p. 91.
While appellant insists that his action is based "upon the defendant's negligent breach of its duty to keep its streets and sidewalks reasonably safe and free of dangerous conditions or obstructions", no such duty is alleged in the petition and the breach of no such duty is charged. Nor does the plaintiff allege that the sidewalk was not reasonably safe, or that it was caused or permitted to be and remain in a dangerous and unsafe condition because of the erection and maintenance of the traffic sign, nor does the petition allege that dangerous obstructions were permitted to exist above the sidewalk. On the other hand, it is apparent from the face of the petition that the negligence charged and intended to be relied upon as a basis for recovery against defendant City is general negligence under the res ipsa loquitur doctrine in the construction, maintenance and control of a traffic sign attached to a light standard whereby the traffic sign was caused, allowed and permitted to fall and strike plaintiff, who was lawfully upon the sidewalk.
No facts are stated in the petition tending to show that the traffic sign in question, or the light standard to which it was attached, were inherently dangerous, nor can it be inferred from the facts stated that a traffic sign attached to a light standard was not a reasonable device or means for the regulation of traffic. We think the petition shows upon its face that the alleged negligent acts complained of in the construction, maintenance and control of the mentioned traffic sign were committed in the performance of a governmental function for which the City is not liable in tort. Hiltner v. Kansas City, supra, 293 S.W.2d 422, 425; Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080, 1082; Blackburn v. City of St. Louis, supra, 121 S.W.2d 727. The allegations of the petition are not sufficient to bring the cause within the authorities relied upon. And see 38 Am. Jur., p. 372, Sec. 665 and 63 C.J.S. Municipal Corporations § 934d(3), p. 399.
A number of Missouri authorities have recognized that the doctrine of governmental immunity for tort in such cases has been criticised. See Hiltner v. Kansas City, supra, 293 S.W.2d 422, 425(3). We think the criticism is best answered in Brown v. City of Craig, supra, 168 S.W.2d 1080, 1083(4, 5), as follows: "This whole doctrine of governmental immunity has been increasingly criticised. However, such nonliability is based not merely on the ancient view that the king can do no wrong, as frequently suggested; but also upon the principle that public officers have no authority to bind the sovereign (the whole people) except such as is given them by specific constitutional and statutory provisions. The general rules of respondeat superior cannot be applied to them without opening up unlimited possibilities for wasteful *74 and dishonest dissipation of public funds. While the complexity of modern government may require a relaxation of present rules of absolute nonliability, undoubtedly this is a matter for the Legislature (which must authorize the collection and disbursement of public funds) to provide in the interest of more complete justice to the individual but under strict regulations and with very definite limitations to protect the public interest."
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626082/ | 464 So. 2d 1015 (1985)
Bradford NELSON
v.
ALLSTATE INSURANCE COMPANY, et al.
No. 84 CA 0107.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
*1017 Wendell G. Lindsay, Jr., Baton Rouge, for plaintiff-appellant Bradford Nelson.
Albert Dale Clary, Baton Rouge, for defendant-appellee Standard Fire Ins. Co.
Before WATKINS, CRAIN and ALFORD, JJ.
CRAIN, Judge.
This is an appeal from a judgment of the trial court which dismissed Bradford Nelsons' (appellant) suit to recover penalties and attorney's fees as provided by La.R.S. 22:658.[1]
On June 13, 1981, appellant was seriously injured when his motorbike collided with an automobile driven by Steven Sensat. The collision occurred in Iberville Parish on River Road. An improper left turn by Mr. Sensat was determined to be the sole cause of the accident.
On December 29, 1981, appellant filed suit against Sensat, Sensat's parents and Sensat's liability insurer, Allstate Insurance Company (Allstate). Appellant also joined Standard Fire Insurance Company (Standard) as the uninsured motorist insurer of his vehicle. Appellant alleged that all necessary proof of loss had been furnished Standard substantially prior to 60 days before filing of suit, and Standard was therefore liable for penalties and attorney fees for failing to pay the claim.[2] Appellant also claimed not less than $100,000 from Standard as general damages suffered by him for their refusal to pay.
On May 14, 1982, Allstate deposited into the registry of the court its policy limits of $10,000 plus interest of $450.41. Appellant immediately withdrew these funds and subsequently Allstate and Sensat's parents were dismissed from the suit by summary *1018 judgment. Appellant also dismissed Sensat after receiving a settlement from him just prior to trial.
On October 12, 1982, appellant filed a motion for summary judgment against Standard seeking to force the payment of the $10,000 policy limits under the uninsured motorist policy and the penalty and attorney's fees provided by La.R.S. 22:658.
On October 15, 1982, Standard deposited $10,000 into the registry of the court.
A hearing on the motion for summary judgment was held on December 10, 1982, and summary judgment was denied.
On June 28, 1983, at appellant's request, a jury trial was held solely on the issue of the penalty and attorney's fee. The court ruled that appellant had no cause of action for general damages against Standard and prohibited the introduction of any evidence related to that issue. On that same date the jury returned a 9-3 general verdict in favor of Standard. On July 11, 1983, a judgment was signed in favor of Standard on the issue of the penalty and attorney's fee and appellant's suit was dismissed at his costs.
Appellant then filed a motion for judgment notwithstanding the verdict and for a new trial. After a hearing on August 12, 1983, the court denied this motion, except to amend the July 11th judgment to provide that Standard had to pay legal interest on the $10,000 from the date of judicial demand.
Appellant now appeals the July 11th judgment and the denial of his motion for judgment notwithstanding the verdict and for a new trial. On appeal, appellant alleges ten assignments of error. We find it necessary to determine only that given the stipulated facts, the juries' verdict was contrary to law and the trial court was therefore in error in refusing to grant a judgment notwithstanding the verdict.
La.R.S. 22:658 applies to an "uninsured" or "underinsured" motorist claim. Hart v. Allstate Insurance Company, 437 So. 2d 823 (La.1983). A claimant for penalties and attorney fees under La.R.S. 22:658 has the burden of proving that the insurer failed to pay the claim within 60 days after receiving "satisfactory proofs of loss" of the claim, and that the insurer was arbitrary, capricious or without probable cause in failing to pay. A "satisfactory proof of loss" within the meaning of La.R.S. 22:658 is that which is sufficient to fully apprise the insurer of the insured's claim. Hart, 437 So.2d at 828. To establish satisfactory proof of loss under an uninsured motorist claim, the insured must establish that the insurer received sufficient facts to fully apprise the insurer that the owner or operator of the other vehicle involved in the accident was uninsured or underinsured, that he was at fault, that such fault gave rise to damages and the extent of those damages. Hart, 437 So.2d at 828.
The undisputed and stipulated facts are as follows: On August 25, 1981, counsel for appellant sent a letter to Standard demanding payment. Enclosed with this letter was a copy of the accident report, hospital bills for the first thirty days following the accident amounting to $10,630.21, the Sensat policy issued by Allstate, four anesthesiologist bills and two pages of a statement given by appellant while in the hospital on June 24, 1981. Mr. Clary, counsel for Standard, stipulated that in the ensuing months during the investigation it became obvious that the accident was caused solely by the fault of Sensat. Standard also stipulated at trial that as of October, 1981, they were aware that appellant's medical expenses and injuries would exceed $20,000, which would be in excess of both Allstate and Standard's policies. Therefore, it is undisputed that Standard had received sufficient proof of loss as of October, 1981, and failure to make payment within 60 days, if found to have been arbitrary and capricious, would entitle appellant to an award of the penalty and attorney's fee. We now consider Standard's reasons for its failure to pay within this 60 day period, and given those reasons whether the jury could determine the failure to pay was not arbitrary and capricious or without probable cause.
*1019 Mr. Greer, Standard's claims adjuster, testified that it was Standard's policy, when dealing with an uninsured motorist claim, to require proof of payment by the tort feasor's primary insurance provider (Allstate), before paying the underinsured claim. Mr. Greer stated that during a telephone conversation with appellant's attorney, Mr. Lindsay, on September 1, 1981,[3] Mr. Lindsay requested him to make an exception in this case and for Standard to pay for two separate $10,000 policies. The letter dated August 25, 1981, reveals that Mr. Lindsay was in fact demanding that Standard pay $20,000 under the uninsured motorist provisions of the policy. Mr. Greer stated he tried to explain to Mr. Lindsay that the law prohibits his attempt to "stack" uninsured motorist coverage and that Standard had a $10,000 policy limit per person in appellant's policy. He stated that Mr. Lindsay continued to insist that Standard was liable for $20,000. Mr. Greer stated he saw no reason to pay $10,000 if appellant was going to come back and seek $10,000 more.
Mr. Lindsay testified that Mr. Greer took the position that proof that Allstate had paid its policy limits was required before Standard would be obligated to make any payments. Mr. Lindsay stated he informed Mr. Greer that Allstate was not going to pay its $10,000 policy limit unless appellant released Sensat for any amount in excess of $10,000 and that he was in a "Catch 22" situation. However, he stated that Mr. Greer never made any offer to settle at that time.
There is no factual dispute as to why Standard refused to pay. Standard asserted then and still asserts that the first reason for its failure to pay is that Allstate, the primary insurer, must pay its policy limits before Standard is obligated to pay appellant's underinsured claim. There is no such requirement in La.R.S. 22:1406D(1)(a) or in La.R.S. 22:658. Hart, 437 So.2d at 828, explains the requirements necessary to establish satisfactory proof of loss for an uninsured motorist claim to trigger the penalty provisions of La.R.S. 22:658. There is no requirement that the primary carrier pay before the uninsured carrier is required to do so where the proof of loss requirements of Hart have been met. Standard was aware that Sensat's policy with Allstate had a $10,000 policy limit rendering Sensat underinsured. Standard knew that Sensat was at fault. Standard knew that this fault gave rise to appellant's damages and that these damages exceeded $20,000. Accordingly, there was no reason for Standard to wait for the primary insurer to pay. Standard knew it was liable for $10,000 and knew it was going to have to pay that amount sooner or later. Under La. 22:658 and Hart it could not choose later.
For the first time on appeal Standard points to a provision in its policy that provides:
The company shall not be obligated to make any payment because of bodily injury... which arises out of the ownership, maintenance or use of an uninsured motor vehicle ... until after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements.[4]
A literal application of this section would require that a liability carrier pay a judgment rendered against it before the uninsured/underinsured *1020 motorist carrier would have to pay anything even though the uninsured motorist carrier knew its liability. This would result in an underinsured motorist carrier not having to pay until a case against the liability carrier is tried, appealed and eventually paid. This provision conflicts with La.R.S. 22:658. It conflicts with Hart. Consequently, we consider the policy provision to be contrary to the statutes and jurisprudence of the state and invalid. See Deane v. McGee, 261 La. 686, 260 So. 2d 669 (1972).
We do not find another case where this policy provision has been declared invalid. Consequently, it would normally present a res nova issue that would militate against finding Standard arbitrary, capricious or without probable cause in refusing to make payment. Breland v. Louisiana Hospital Services, Inc., d/b/a Blue Cross of Louisiana (La.App. 1st Cir.1984) (Docket No. 83 CA 1247, Decided December 7, 1984). Here though, it is apparent that although the policy provision is argued as a reason for not making payment, it was not in fact a reason. The liability carrier, Allstate, actually paid their policy limits on May 14, 1982. Standard did not deposit their policy limits until October 15, 1982 and that was in response to a motion for summary judgment. A deposit of their policy limits within 60 days of payment by Allstate would have furnished the jury valid reason for finding Standard was not in violation of La.R.S. 22:658. A deposit some 5 months after payment by the liability carrier and then only in response to a motion for summary judgment is not a legal defense to application of La.R.S. 22:658.
Standard also argues a provision in its policy allows payment to be contingent on the execution of a right of subrogation by its insured, pointing out that Bond v. Commercial Union Assurance Co., 407 So. 2d 401 (La.1981) which authorized subrogation solely on the policy provisions was not decided until after the incident occurred. Actually, Bond was decided on rehearing in November of 1981. We have decided the 60 day grace period of La.R.S. 22:658 began to run in this case in October of 1981. Consequently, Standard had the benefit of Bond when payment would still have been timely to avoid penalties and attorney fees. In any event the policy provision relied on by Standard does not make payment contingent upon execution of a right of subrogation by the insured. It provides that "In the event of any payment... the Insured shall execute and deliver... papers ..." that will secure the right of subrogation. Here there was no payment so the insured was never called upon to comply with the policy provisions.
Standard's second reason for its failure to pay is that appellant was incorrectly seeking to stack the uninsured motorist coverages on both insured vehicles under the policy for a total of $20,000 and that it would be useless to pay appellant $10,000 if he was going to come back and seek $10,000 more.
Standard stipulated at trial that as of October, 1981, it was aware that appellant's medical expenses and injuries would exceed $20,000. Standard was also aware that Sensat's policy with Allstate had a $10,000 limit. Therefore, even though appellant was demanding $20,000 from Standard, it knew and admitted at trial that it was liable for the $10,000 uninsured motorist limit.
In Sibley v. Insured Lloyds, 442 So. 2d 627 (La.App. 1st Cir.1983), this court held that where there is a reasonable dispute as to the amount of loss, the insurer can avoid the imposition of penalties including attorney fees by unconditionally tendering the part of the claim it considers undisputed. However, if the insurer conditions its offer to pay an undisputed amount on the insured's acceptance thereof in full settlement, the offer is not viewed as an unconditional tender for purposes of La.R.S. 22:658. O'Brian v. Allstate Insurance Company, 420 So. 2d 1222 (La.App. 3rd Cir. 1982).
Standard admitted it was liable for its $10,000 policy limit. However, the record reflects there was never an unconditional *1021 tender by Standard of the $10,000 which it admits was owed. Accordingly, we find Standard's second reason for its failure to pay appellant without legal basis.
Standard admits facts that constitute a proof of loss under Hart. Consequently, its refusal to pay was without probable cause and the juries' failure to assess penalties and attorney fees was wrong as a matter of law. The trial court should have granted a judgment notwithstanding verdict. Failure to do so was error.
Appellant alleges general damages are recoverable under La.R.S. 22:658. He argues that a contract of insurance has for its object the gratification of some intellectual enjoyment bringing proof of such a claim under the ambit of La.C.C. art. 1934(3). This article provides a legal basis for an award of general damages where a contract has for its object the gratification of some intellectual enjoyment. However, in Tano Corporation v. Louisiana Health Service & Indemnity Company, 355 So. 2d 604 (La.App. 4th Cir.1978), the court specifically rejected a claim for mental anguish and suffering finding that a contract for medical and health insurance is a contract for the payment of money only and does not have for its object intellectual gratification. We hold the same is true of an uninsured motorist policy. Accordingly, the trial court was correct in refusing to allow evidence of general damages.
Appellant alleges that the trial court erred in not letting the jury consider any evidence as to the amount of the attorney's fees. We agree. The issue of the amount of an attorney's fee is a question of fact and appellant should have been allowed to present evidence on this issue to the jury. However, the trial court allowed evidence to be presented to him on the amount of attorney fees. Consequently, the record contains sufficient evidence from which we can determine a reasonable attorney's fee and in the interest of judicial economy, it is necessary that we do so. Gonzales v. Southwest Mobile Homes, Inc., 309 So. 2d 780 (La.App. 3rd Cir.1975), writ denied, 313 So. 2d 239 (La.1975). Accordingly, we award $5,000 as a reasonable attorney's fee to appellant. Of this amount, $1000.00 is awarded for services rendered on this appeal.
Appellant alleges the trial court erred in not allowing him to introduce evidence as to out-of-pocket expenses incurred in pursuing the claim against Standard. We disagree. La.R.S. 22:658 provides for the recovery of "all reasonable attorney's fees for the prosecution and collection" of a claim. The statute does not provide for recovery of out-of-pocket expenses as a separate item. This statute is penal in nature and, consequently, must be strictly construed. Hart, 437 So. 2d 823 (La.1983). Accordingly, we find no merit to this assignment of error.
DECREE
For the foregoing reasons, the judgment of the trial court is reversed. Standard is ordered to pay the 12% penalty ($1200). We also award $5,000 as a reasonable attorney's fee. Legal interest on the $1200 penalty and $4,000 of the attorney's fee awarded for services rendered before this appeal, is owed from January 1, 1982,[5] until paid. Legal interest on the $1,000 attorney's fee awarded for services rendered on appeal begins to run as of the date of this decision. Haynes v. Standard Fire Insurance Company, 370 So. 2d 118 (La.App. 1st Cir.1979). All costs are assessed to Standard.[6]
REVERSED AND RENDERED.
NOTES
[1] La.R.S. 22:658 provides as follows:
All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make any such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney's fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney's fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney's fees.
[2] The policy limit in the Standard policy is $10,000 plus $1000 medical. Plaintiff sued for $20,000 plus the $1000 medical under the erroneous theory that he was entitled to "stack" policies. As will be shown the fact that plaintiff sued Standard for more than he was legally entitled to recover does not affect his right to recover penalties including attorney fees for Standard's failure to pay what the policy provided.
[3] We specifically note that this conversation was the only negotiations between Mr. Greer and Mr. Lindsay prior to or during the 60 days following receipt of sufficient proof of loss in October, 1981. Although both sides introduced evidence of the content of negotiations in April and May of 1982, this evidence is not relevant to our determination of whether Standard's refusal to pay within 60 days after receipt of proof of loss was arbitrary and capricious.
[4] This provision is found under a section of the policy entitled:
"UNINSURED MOTORISTS INSURANCE AMENDMENT
(Louisiana)
3...".
Appellee refers to the policy without even referring to the location of the pertinent section in the policy.
[5] The record reveals that by the end of October, 1981, Standard had all of the information necessary for the proof of loss. Therefore, the sixty days as specified in La.R.S. 22:658 would have run by the end of December, 1981. We find that as of January 1, 1982, Standard was arbitrary and capricious in not paying the claim and that interest should commence as of January 1, 1982.
[6] In assignment of error number one appellant argues the trial court erred in assessing him with all court costs. It becomes unnecessary for us to address this issue having reversed the judgment of the trial court, since we now assess all costs to Standard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626102/ | 345 S.W.2d 632 (1961)
ARKANSAS STATE HIGHWAY COMMISSION, Appellant,
v.
Helen E. COOK, Appellee.
No. 5-2381.
Supreme Court of Arkansas.
May 1, 1961.
Dowell Anders and H. Clay Robinson, Little Rock, for appellant.
DuVal L. Purkins, Lake Village, for appellee.
GEORGE ROSE SMITH, Justice.
In 1940 the state highway department constructed a paved highway across the appellee's land, leading to the Greenville bridge. The acquisition of the right of way was evidenced by a county court condemnation order, which described the public easement and required that any aggrieved landowner present his claim for compensation within one year. Ark.Stats.1947, § 76-917. The easement condemned across the appellee's land was in part 100 feet wide and in part 110 feet wide. The appellee was paid $600 for her crop damage, but she did not ask to be paid for the easement that was taken.
In 1958 the Highway Commission decided to reconstruct the highway in question and to that end brought this action to condemn enough land to enlarge its easement to a uniform width of 120 feet. With respect to the appellee's land the Commission took the position that it already had the easement described in the 1940 county *633 court order, varying from 100 to 110 feet in width, and that an additional 2.435 acres would be needed to widen the right of way to 120 feet. The appellee at first contended that the public had no easement at all across her lands, but that contention was rejected upon the first appeal. Arkansas State Highway Comm. v. Cook, Ark., 329 S.W.2d 526.
Upon remand the appellee amended her answer to allege that the state's easement was limited to the 80-foot strip actually used for the highway and its shoulders. As a basis for this allegation it was asserted alternatively (a) that the Commission originally acquired only an 80-foot easement under the county court order, or (b) that if a greater easement was acquired the Commission had abandoned all except the 80 feet in actual use. Upon these theories the appellee insisted that the Commission would have to take an additional 4.02 acres to widen its 80-foot easement to 120 feet. Over the Commission's objection the appellee's theory of the case was submitted to the jury, which awarded compensation of $10,000 upon a finding that the taking amounted to 4.02 acres.
The court erred in submitting to the jury the issues raised by the appellee's answer, for there is no evidence to support the view that the existing public easement is only 80 feet wide. The 1940 county court order is shown by undisputed evidence to have been valid, and its effect was to create a public right of way that varied from 100 to 110 feet in width.
In contending that the county court order was effective only as to an 80-foot strip the appellee relies upon testimony showing that the Highway Commission has actually used only that amount of her land. We are referred to a number of cases which hold that the taking under a county court order such as this one is not complete until there has been an actual entry upon the land. It is accordingly argued that in this instance only an 80-foot easement was taken, because only an 80-foot strip was entered.
This argument misconceives the nature and purpose of the rule relied upon. The statute that authorizes condemnation by the county court is ostensibly defective, in that it makes no provision for the giving of notice to the landowner whose property is being taken. Ark.Stats. § 76-917. Notice is essential, however, for the landowner is entitled to a hearing upon the issue of compensation. The cases cited by the appellee have simply saved the act from invalidity by holding that the actual entry upon the land supplies the required notice to the landowner.
The holding in Greene County v. Hayden, 175 Ark. 1067, 1 S.W.2d 803, 805, is typical. There the county authorities did not actually enter the land until more than a year after the rendition of the order condemning the right of way. We held that the one year allowed for the filing of claims did not begin to run until the entry upon the land, for that was the landowner's first notice of the condemnation. It was pointed out that formal notice (as by the service of a summons) might have been given, "but, in the absence of formal notice, the landowners were not charged with notice of the order of the court condemning their property until the county, in some way, took the property thereunder."
We need not discuss every one of the cases cited; they are all in harmony. In State Highway Comm. v. Holden, 217 Ark. 466, 231 S.W.2d 113, the rule was restated, with the additional holding that the driving of stakes upon the land did not amount to an entry. Similarly, it was held in Arkansas State Highway Comm. v. Dobbs, Ark., 340 S.W.2d 283, that the landowner was not put on notice of the county court order when the highway department merely repaved an existing street without making a new entry upon private property. On the other hand, the right to compensation is lost if the owner fails to file his claim *634 within a year after the entry. Hot Spring County v. Fowler, 229 Ark. 1050, 320 S.W.2d 269.
The appellee is mistaken in arguing that the highway department's entry upon the land is notice to the landowner of the extent to which his property is being taken. This is not the case, nor should it be. Such a rule would mean that the validity of the public easement would rest in the uncertainties of oral evidence; for the highway department, even after having paid for the easement in full, might have to prove many years later that it had in fact entered upon every foot of the land condemned.
Here it is shown by undisputed proof that the department actually entered the appellee's land in 1940 and built a road. To put the matter beyond any possibility of doubt it also appears by the appellee's own admission that she filed a claim for crop damage. Thus she had actual notice of the proceeding in the county court and is as fully bound by the order as if she had been served with a summons or had entered her appearance. Her right to compensation was lost by her failure to file a claim within the one year allowed by the statute.
Upon the alternative issue of abandonment the only proof is that the highway department has not actually used the entire right of way, which has been encroached upon by the appellee's fences and improvements. It is quite generally held that the public's failure to occupy its entire easement does not constitute an abandonment of the unused portion. Graham v. Bailard, 157 Cal. 96, 106 P. 215; Wolfe v. Sullivan, 133 Ind. 331, 32 N.E. 1017; Olwell v. Travis, 140 Wis. 547, 123 N.W. 111. And of course the appellee's encroachments are without significance, the public highways not being subject to adverse possession. Ark.Stats. § 37-109.
In the course of two trials this case has been fully developed. There is only one issue for the jury, the appellee's right to compensation and consequential damages for the taking of 2.435 acres. The cause will therefore be remanded for a new trial upon that issue only.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626103/ | 464 So. 2d 1104 (1985)
STATE of Louisiana, Plaintiff-Appellee,
v.
W.D. "Dub" SIMPSON, Defendant-Appellant.
No. CR84-242.
Court of Appeal of Louisiana, Third Circuit.
March 6, 1985.
*1106 David L. Wallace, Bradley Wallace & O'Neal, De Ridder, for defendant-appellant.
William E. Tilley, Dist. Atty., Leesville, for plaintiff-appellee.
Before DOUCET, LABORDE and YELVERTON, JJ.
LABORDE, Judge.
The defendant, W.D. "Dub" Simpson, was arrested on April 18, 1983. On April 28, 1983, a Vernon Parish grand jury returned an indictment on Mr. Simpson, his wife Bertha, and Gary Eason, charging them with one (1) count of conspiracy to commit simple criminal damage to property, a violation of La.R.S. 14:56 and 14:26; and three (3) counts of simple criminal damage to property, violations of La.R.S. 14:56. Both Mr. Simpson and Bertha were arraigned on May 2, 1983. Mr. Simpson was tried before a jury of six persons on September 12, 1983.
The jury returned a verdict of guilty to count one, conspiracy to commit simple criminal damage to property and guilty to count two, simple criminal damage to property in excess of $500.00. The jury also returned responsive verdicts, on counts three and four, of guilty of simple criminal damage to property amounting to less than $500.00 on each count.
On November 22, 1983, after a pre-sentencing investigation was had, the defendant was sentenced to serve:
*1107 Count 1One year at hard labor with the Louisiana Department of Corrections on the conspiracy conviction;
Count 2Two years at hard labor with the Louisiana Department of Corrections, consecutive to the sentence imposed for count one;
Count 3Ninety days in the Vernon Parish Jail to be served concurrently with the sentences imposed in connection with counts one and two;
Count 4Ninety days in the Vernon Parish Jail to be served concurrently with the sentences imposed in counts one, two and three.
The defendant appeals his conviction and sentence. We affirm.
FACTS
On March 26, 1983, the defendant, W.D. "Dub" Simpson, along with Mr. Gary Eason and Mrs. Bertha Simpson (defendant's wife), conspired to cut down several barbed wire fences running along a 3 mile stretch of pastureland in Vernon Parish. During the late night hours of March 26, 1983, and into the early morning hours of March 27, 1983, the defendant and Mr. Eason cut down over two miles of barbed wire fence on three adjacent tracts of land.
The three adjacent tracts of land were separately owned by B.L. and P.W. Simpson and/or Kirby Forest Industries, Inc., Mrs. Jessie Sowells and Mr. Leo L. Denmond. The fence that was destroyed by defendant followed a line approximately ten feet inside the outer boundary of the tracts and ran in a continuous line for nearly three miles. Defendant and his cohort followed this fence line, indiscriminately cutting the barbed wire from post to post.
Each owner individually built his fence to comply with a recently enacted stock ordinance which forbids residents from allowing cattle to roam freely. Defendant's only complaint about the fences was that they made access to local hunting and fishing spots more difficult. However, defendant never proved he had any right to free access to these spots.
An investigation by the Vernon Parish Sheriff's Office led to defendant and Gary Eason. Both were arrested on the aforementioned charges. Mr. Eason, in a plea bargain agreement with the District Attorney's Office for the Thirtieth Judicial District, made a full confession of his role in the damage to the fences and identified the defendant as the organizer of the undertaking.
Following a trial before a six person jury the defendant was convicted and sentenced as hereinabove stated. The defendant alleges 13 assignments of error for our review. They are:
1. Trial court erred by failing to grant a motion to quash in which the defendant asked that the count of conspiracy, in simple criminal damage to property, be severed.
2. Trial court erred by failing to grant a motion to quash, based on the multiplicitous charging of the defendant, by charging him in three counts of simple criminal damage to property, when in fact, there was only one act of simple criminal damage to a common fence that ran across property belonging to three individuals.
3. Trial court erred by failing to quash the bill of indictment lodged against the defendant because double jeopardy would force him to be exposed to possible punishment on three charges of simple criminal damage to property when there was only one actus rea and only one act of criminal activity.
4. Trial court erred by failing to quash the indictment lodged against the defendant because as indicated by the trial record, this fencing was in fact owned by the Lessor of the fence, Kirby Forest Industries, Inc., and not by any of the other individuals represented in the bill of indictment.
5. Trial court erred by failing to grant the Motion In Limine filed by the defendant prior to trial, in that it was prejudicial to defendant to force him to go to Court and ask that the jury be *1108 excused before the Court to examine admissions allegedly made by the defendant out of the presence of the jury. That prior to trial, it was indicated that there were 25 to 28 admissions that the prosecution would attempt to introduce, and counsel for defendant was forced to object on each and every one and ask that the Court excuse the jury. It is contended that the Court erred because this forced counsel for defendant into action that may have prejudiced the jury against the defendant.
6. Trial court erred by admitting physical evidence, as testified to by P.W. Simpson and Bryant Simpson, as to receipts and other items of evidence, which were not in proper form, in that they were not the best evidence because they were copies of said receipts.
7. Trial court erred by admitting as a State exhibit the drawing by Det. Willard Horton. Det. Horton testified that he had no expertise in this field, and in fact, the drawing was not drawn to scale in any fashion, and in fact, was drawn from the notes of another individual. Allowing this drawing into evidence prejudiced defendant's right to a fair trial.
8. Trial court erred by failing to declare a mistrial when Gary Eason admitted giving other oral statements to Det. Willard Horton, which were statements of a co-conspirator and co-defendant and were not provided to defense prior to trial.
9. Trial court erred by failing to declare a mistrial when, after the testimony of one Paul Pickett, it became clear that there were other statements made by the defendant in telephone conversations with Mr. Pickett at the behest of Vernon Parish Sheriff's Office, and this statement was not given to defense counsel prior to trial, pursuant to Discovery Motions and Bill of Particulars.
10. Trial court erred by admitting evidence, in allowing the testimony of one Jessie Sowells, as to his ownership of the fence, in that he could produce no receipts, or otherwise, as to the money he allegedly put into the building and construction of the fences.
11. Trial court erred by allowing evidence to be admitted by one Leo Denmond, and during the testimony of Leo Denmond, as to a photostatic copy which was admitted into evidence, which should have been excluded because it was not the best evidence available as to that individual, in the fact that he had testified that the original list of documents should have been available.
12. Trial court erred by sentencing the defendant to an excessive sentence.
13. Trial court erred by admitting statements allegedly made by the defendant in Simmons Hardware, in that they were not admissions against interest and could only serve to inflame the jury, and the probative value was very limited, and said admissions were made to Bryant Simpson.
ASSIGNMENTS OF ERROR NUMBERS 1-4
Through these assignments, the defendant argues that the trial court erred in denying his motion to quash. He alleges prejudicial joinder, multiplicitous charging, double jeopardy, and that there was only one crime committed concerning one fence owned solely by Kirby Forest Industries.
Defendant argues that the three counts of criminal damage to property and the one count of conspiracy should not have been joined and that such joinder was prejudicial and caused the jury to be hostile toward defendant. Briefly stated, the defendant argues that the four counts charged in the indictment should not have been tried together because the jury was certain to infer, merely because of the cumulative evidence, that defendant was guilty of something. The Code of Criminal Procedure and the settled jurisprudence do not support this argument. See State v. Winn, 412 So. 2d 1337 (La.1982); State v. Washington, *1109 386 So. 2d 1368 (La.1980); Drew v. United States, 331 F.2d 85 (D.C.Cir.1964); United States v. Weber, 437 F.2d 327 (3d Cir.1970); State v. Webb, 364 So. 2d 984 (La.1978); and La.C.Cr.P. Article 493; and La.C.Cr.P. Article 495.1.
In State v. Washington, the Louisiana Supreme Court outlined the various factors to be considered by a lower court in applying La.C.Cr.P. Article 495.1 concerning the severance of offenses:
"... the trial court must weigh the possibility of prejudice versus the important considerations of judicial economy and administration. In determining whether prejudice may result from the joinder, the Court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile."
State v. Washington, 386 So.2d at 1371.
In the present case there is no showing that the jury was either confused by the various counts or unable to segregate the charges and evidence presented on each. Here, the defendant was charged with three counts of the same offense. Once the elements of the crime were made clear, the jury needed only to weigh the evidence presented as to each owner who suffered a loss. There was nothing confusing about the jury determining what damage each owner suffered and whether or not defendant caused that damage. The counts joined in the present case were not an accumulation of a variety of serious criminal offenses which might prejudice a jury but were merely three instances of the same criminal offense which defendant accomplished in one spree on the same night.
In State v. Webb, 364 So.2d at 988, the State joined charges of aggravated kidnapping, armed robbery, and attempted aggravated rape. All three offenses arose out of the same crime spree. Id. at 989. The Court held that there was no indication that the jury was hostile or that the jury was overwhelmed by the cumulation of these serious charges and therefore ruled that the offenses were not improperly joined. Id. Likewise, in State v. Winn, 412 So.2d at 1342-3, where the defendant was charged with eight separate offenses that arose out of the same crime spree, the Court refused to sever the charges. In both Webb and Winn, the offenses "were closely related in point of time and basically arose out of one continuing transaction" during a crime spree, and were therefore properly joined. State v. Webb, 364 So.2d at 989.
Defendant argues that there was multiplicitous (or duplicitous) charging by the prosecution accusing him of three counts of criminal damage to property, when there was only one action taken by defendant. This assignment of error is without merit. Duplicity in an indictment does not apply to the joinder in one indictment of several counts for different offenses. Slovenko, The Accusation In Louisiana Criminal Law, 32 Tul.L.Rev. 47, 71 (1957). Duplicity is the charging of more than one distinct crime in one count of an indictment. Id. In this case, the prosecution did not charge more than one distinct crime in any of the counts of the indictment.
Defendant also argues that he is being placed in double jeopardy because prosecution charged him with three counts of criminal damage to property, when there was only one act of criminal conduct. The Louisiana Code of Criminal Procedure provides for the joinder of offenses:
"Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting *1110 parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial."
La.C.Cr.P. art. 493.
The offenses charged herein did arise out of the same act and were indeed all part of a common scheme to destroy a fence row which stretched over almost three miles of private property owned by various private concerns. The defendant was charged with conspiracy to commit criminal damage to property. The record demonstrates sufficient proof of this offense. Defendant makes no argument that the evidence was not sufficient. The defendant was also charged with three counts of criminal damage to property. The State showed that not only did defendant conspire with others to wantonly destroy what he knew to be the private property of others, but it showed that he knowingly and intentionally destroyed the fences of three different parties in the community. Thus, he was properly charged with three separate counts of the same criminal offense. See State v. Gipson, 359 So. 2d 87, 91-92 (La.1978).
The State proved that the continuous line of barbed wire fence, stretching over two or three miles of private property, did in fact belong to at least three different individuals. As such, each count required proof of elements unique to each charge. It would not have been enough for the State merely to prove that defendant in fact cut down this long stretch of fence. It was necessary that the State demonstrate the defendant knew that different sections of the wire fence were owned by different individuals, what the separate damages of each amounted to, whether or not each owner had consented to what was done and whether or not defendant had a vested property interest such that he would have a legal right to destroy or remove the fence from a given piece of property.
There was evidence which proved elements common to each offense charged; namely, the evidence that showed defendant took part in cutting down the entire length of fence spanning the private property of three different individuals. Nevertheless, defendant's actions, though physically identical in each instance, i.e. cutting a fence, constituted a separate offense each time he crossed over a property line and knowingly destroyed a different owner's fence. That the fences were contiguous and outwardly appeared to be but one long barbed wire fence is of no moment. The State demonstrated that defendant knowingly and intentionally damaged the fence of Jessie Sowells, which in and of itself constituted one count of criminal damage to property. The State demonstrated that defendant knowingly and intentionally damaged the fence belonging to P.W. and B.L. Simpson and/or Kirby Forest Industries, which in and of itself constituted another count of criminal damage to property. And the State demonstrated that defendant knowingly and intentionally damaged a fence belonging to Leo Denmond, which also in and of itself constituted yet another count of criminal damage to property. That defendant was able to accomplish these acts in one location rather than having to travel from one area to another does not mean that he committed only one criminal offense. Had defendant destroyed the fence of A in one part of the parish, fence B in another area, and fence C in yet another, there is no doubt that an indictment or bill of information could have been issued charging three separate counts of criminal damage to property. That the contiguity of the fences destroyed enabled defendant to accomplish his criminal purpose all at once does not alter the fact that he committed three separate acts of criminal damage to the property of others. Thus, the indictment properly charged defendant with three counts of criminal damage to property.
Finally, defendant argues that there was only one crime committed because the fence was owned by only one party, Kirby Forest Industries. As stated above, the State proved that defendant knowingly and intentionally destroyed the fences of three different parties. Therefore, this assignment of error is without merit.
*1111 For the reasons stated above, assignments of errors one, two, three and four are without merit.
ASSIGNMENT OF ERROR NO. 5
Through this assignment the defendant argues that the trial court erred in denying defendant's motion in limine filed prior to trial. Through this motion the defendant sought to examine admissions allegedly made by defendant which defendant believed would be introduced at trial. The defendant believed that the prosecution intended to introduce some 25 to 28 admissions which defendant believed constituted impermissible hearsay. Through this motion the defendant wished to examine those admissions before the trial so that he would not be forced to make numerous objections at trial. Defendant maintains that because he had to make so many objections at trial and because the jury had to be removed so frequently, the jury was prejudiced and was led to believe that defendant had something to hide.
The defendant cites no authority for his assertions and the record does not reflect that the jury was either prejudiced or hostile toward him. The defendant was merely anticipating what might be introduced in evidence and was premature in his objection to such evidence. In essence, defendant was attempting to try a large part of the case outside the presence of the jury before the trial even began. It should be noted that a number of these "admissions" were never introduced at trial and the problem anticipated by defendant never materialized.
The law requires "contemporaneous objections"; that is, objection at the time of its occurrence to evidence which defendant believes is inadmissible. State v. Richmond, 278 So. 2d 17, 21 (La.1973); see also State v. Vince, 305 So. 2d 916, 921 (La. 1974); La.C.Cr.P. art. 841. The record reflects that defendant had the opportunity, and did object during the trial when any question arose as to the admissibility of any evidence. Defendant neither makes a showing that a pre-trial hearing was necessary to protect his rights at trial nor does he make any showing that denial of this motion resulted in any prejudice toward the defendant. For the reasons stated, this assignment lacks merit.
ASSIGNMENT OF ERROR NO. 6
Through this assignment the defendant argues that the trial court erred in allowing into evidence copies of receipts rather than the original receipts contrary to the best evidence rule.
Defendant was charged in count two with simple criminal damage to the property of B.L. and P.W. Simpson and/or Kirby Forest Industries in excess of $500.00 but less than $50,000.00, a violation of La.R.S. 14:56.
"A. Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.
B....
Where the damage amounts to five hundred dollars but less than fifty thousand dollars, the offender shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both."
LSA-R.S. 14:56. Thus, it was incumbent upon the State to prove that the damage to the Simpsons' property exceeded $500.00. State Exhibits S-8 and S-8-1, an invoice from Hebert Lumber Co. for $578.96 for barbed wire and the personal check written by Mrs. P.W. Simpson to Hebert Lumber Co. for $578.96 with a notation on it "Barbed Wire," proved that the damages were in excess of $500.00. This, along with the testimony of B.L. and P.W. Simpson clearly established that the damage to their property exceeded $500.00. The State introduced several other photostatic copies of invoices, bills, etc. further demonstrating the amount of damage incurred by the Simpsons. The originals of these bills and invoices were not available. First, it should be noted that defendant has shown no prejudice suffered as a result of the admission of this evidence. The fact at *1112 issue was proved without the evidence defendant claims is inadmissible. "Absent a showing of some prejudice to the defendant, the `best evidence' rule will not be applied unreasonably." State v. Bennett, 341 So. 2d 847, 855-6 (La.1976).
The trial court committed no error in admitting the photostatic copies rather than requiring that the originals be produced because the defendant failed to make any showing that the copies were not accurate reflections of the original.
The Louisiana Supreme Court states that:
"... where a document offered in evidence is a mechanical reproduction of the original, and is thus the substantial equivalent of the original, admission over objection is reversible error only upon a showing that the content of the purported copy does not accurately reflect that of the original. State v. Vincent, 338 So. 2d 1376 (La.1976); State v. Jackson, 296 So. 2d 320 (La.1974)."
State v. Stuart, 344 So. 2d 1006, 1009 (La. 1977); See also State v. Demouchet, 353 So. 2d 1025, 1028 (La.1977).
For the reasons stated, this assignment is without merit.
ASSIGNMENTS OF ERROR NOS. 7, 10 AND 11
Through these assignments, the defendant argues that the trial court erred in admitting certain evidence. As all three assignments concern a question of the weight and credibility of the evidence and not a question of admissibility they will be discussed together.
Through assignment number seven the defendant asserts that the court erred in admitting into evidence a diagram of the crime scene because it was not drawn to scale. It should be noted that Detective Willard Horton made it clear during his testimony that the diagram was not drawn to scale and was merely made to show distances and directions of the cut fences. In addition, the defendant fully cross-examined the witness concerning the diagram allowing the jury to determine the weight and credibility of that evidence.
The defendant asserts that because the one who drew this diagram has no skill or expertise as a draftsman the drawing should not have been admitted.
The Louisiana Supreme Court has stated that:
"The lack of skill as a draftsman and the inaccuracies of the drawing go to the weight to be accorded to the sketch but do not defeat its admissibility."
State v. Lawrence, 365 So. 2d 1356, 1358 (La.1978).
It has further held that:
"Maps or diagrams generally are admissible to aid the jury in understanding testimony if shown to be an accurate representation of the subject matter in question and the ruling of the trial court relative to admissibility will not be disturbed on appeal unless there has been abuse of discretion. 3 Wharton's Criminal Evidence, sec. 641 (13th ed. Torcia, 1973). See also United States v. Goodwin, 470 F.2d 893 (5 CA 1972). In State v. Triplett, 285 So. 2d 532 (La.1973), where the arresting officer had returned to the scene and drawn a sketch, this court held that admission of the sketch at trial was not an error. In so concluding, this court noted that the fact that the sketch was not absolutely accurate in every detail and distance did not negate its relevancy or render it inadmissible, but rather would go to the weight accorded the sketch by the jury."
State v. Andrews, 369 So. 2d 1049, 1051 (La.1979); See also State v. Toomer, 395 So. 2d 1320, 1332 (La.1981); State v. Prestridge, 399 So. 2d 564, 573 (La.1981); and State v. Chapman, 410 So. 2d 689, 697 (La. 1981).
In State v. Chapman, the defendant argued that a drawing of the crime scene made by an officer was offered as an accurate representation of the crime location but was not drawn by a draftsman and was not made to scale. The Court held:
"The diagram was offered into evidence at the close of the state's case in *1113 chief. The state did not represent that the drawing was an accurate diagram of the area, but merely offered it to show the relative locations of various key spots involved in this crime. Such evidence has been held to be admissible by this Court, which has pointed out that:
`In Louisiana the rule concerning the introduction of demonstrative evidence is that the foundation laid must establish that it is more probable than not that the evidence is connected with the case and that the evidence has some relevance which the trial court considers sufficient to warrant its introduction. State v. Drew, 360 So. 2d 500, 518-19 (La.1978)' State v. Andrews, 369 So. 2d 1049, 1050-51 (La.1979)." [sic]
"In State v. Lawrence, 365 So. 2d 1356, 1358 (La.1978), the Court pointed out that:
`The lack of skill as a draftsman and the inaccuracies of the drawing go to the weight to be accorded to the sketch but do not defeat its admissibility.'
"Similarly, in this case, the defendant had the opportunity, on cross-examination of Chief Tyrney, to point out to the jury any inaccuracies in the diagram."
State v. Chapman, 410 So.2d at 697-8.
For the reasons stated above, assignment of error number seven is without merit.
Through assignments of error numbers ten and eleven the defendant argues that the court erred in admitting the testimony of Jessie Sowells concerning his ownership of part of the fence that was cut as he could produce no written receipts or bills to establish the value of his loss. The defendant also argues that the testimony of Leo Denmond concerning his damages as well as the introduction of a photostatic copy of a bill owed by Leo Denmond to P.W. and B.L. Simpson for building the fence should not have been admitted.
Defendant cites no authority for his proposition that a witness cannot give oral testimony as proof of property ownership and as proof of the value of that property. Defendant offers no reason why such evidence should be inadmissible. Furthermore, defendant has not shown that the introduction of this evidence resulted in a prejudicial outcome. On the contrary, the jury was not convinced that Mr. Sowells and Mr. Denmond had suffered damages in excess of $500.00. In assessing the weight accorded the testimony in question, the jury believed that the State had not offered sufficient evidence to establish that the damages exceeded $500.00. Therefore, the jury returned responsive verdicts to counts three and four. The jury found defendant guilty of a misdemeanor offense for damages under $500.00 on each count.
For the reasons stated above, these assignments are without merit.
ASSIGNMENTS OF ERROR 8 AND 9
Through these assignments the defendant argues that the trial court erred by failing to declare a mistrial on two occasions. First, the defendant alleges that the trial court should have declared a mistrial when Gary Eason, the State's chief witness, testified that he had made exculpatory statements to Detective Horton, which statements were not made known to defendant through discovery.
The defendant argues that under La.C. Cr.P. art. 722, exculpatory evidence or statements made by a codefendant shall be produced upon motion of the defendant.
"Under Brady [Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], the suppression of favorable evidence by the prosecution, when production of such evidence is requested, violates due process when the evidence is material to either guilt or punishment, regardless of the good or bad faith of the prosecution."
State v. Perkins, 423 So. 2d 1103, 1107 (La. 1982). See also State v. Landry, 381 So. 2d 462 (La.1980); State v. Davenport, 399 So. 2d 201 (La.1981); and State v. Ates, 418 So. 2d 1326 (La.1982).
The statement which the defendant refers to was Gary Eason's repeated response to Detective Horton's inquiry into *1114 Mr. Eason's knowledge and/or involvement in the fence cutting episode. Detective Horton quoted Mr. Eason as repeatedly responding "I don't know what you are talking about."[1] After lengthy questioning, Mr. Eason finally confessed to his part in the crime as well as to the defendant's role in committing the damage to the fences. Detective Horton informed the district attorney that Eason at first "neither admitted or denied knowledge or involvement." [2] In response to defendant's motion for discovery, the State informed the defendant concerning Mr. Eason's remarks but did not include the statement "I don't know what you are talking about" as an exculpatory statement for defendant. The trial judge stated his reasons for denying the motion for mistrial:
"I have no reason to believe really, that he [Eason] said anything other than `I don't know what you are talking about.' The court is inclined to consider this more in the nature of an evasive statement out of self-interest than to consider it evidence that would be exculpatory to the defendant."[3]
It does not appear that the remark in question comprises anything of an exculpatory nature. However, even if the remark was exculpatory in nature and the State was remiss in failing to disclose it, the defendant suffered no prejudice from the State's failure to disclose the statement. See State v. West 408 So. 2d 1114, 1122 (La. 1982). The record shows that defendant knew Eason made the remark and that defendant fully cross-examined Eason concerning the remark.
The defendant argues that the failure to disclose Eason's remark had a negative impact on his ability to prepare for trial. The United States Supreme Court has refused to accept a standard for materiality of "Brady material" based on the impact to a defendant's ability to prepare for trial. United States v. Agurs, 427 U.S. 97, 112 n. 20, 96 S. Ct. 2392, 2401 n. 20, 49 L. Ed. 2d 342, 354-55 n. 20 (1976). The Supreme Court recognized that:
"First, that standard would necessarily encompass incriminating evidence as well as exculpatory evidence, since knowledge of the prosecutor's entire case would always be useful in planning the defense. Second, such an approach would primarily involve an analysis of the adequacy of the notice given to the defendant by the State, and it has always been the Court's view that the notice component of due process refers to the charge rather than the evidentiary support for the charge."
United States v. Agurs, 96 S.Ct. at 2401 n. 20.
Through assignment of error number nine, the defendant argues that again the trial court erred in denial of his motion for mistrial based on the testimony of Mr. Paul Pickett. The defendant argues that, as Mr. Pickett testified, detective Horton instructed and/or coerced Mr. Pickett into making a phone call to "Dub" Simpson and that the State failed to make tapes of these calls available to defendant.
Detective Horton, however, testified that no such phone calls were ever made by Mr. Pickett under his or anyone else's direction and that no such tapes exist.
From the record it is clear that, after having heard the two witnesses testify on the matter, the trial judge believed that no such phone calls were ever made and consequently there were no tapes for the State to make available to defendant.
"Your motion is denied at this time counsel. Clearly you are entitled if a statement exists to a statement. The only thing that the court might base an assumption that a statement existed on would be the testimony of Mr. Pickett. Mr. Pickett jumped to a conclusion or an assumption that there was a recording. Quite frankly, having heard Mr. Pickett, if Mr. Pickett told me the sun was shining real bright, I'd call a delivery man and get him to bring me some coal oil so *1115 that I could have light. I don't believe a thing the man said. And, I reject the notion that the evidence establishes that any statement ever existed from this defendant or from anyone else through his agency."[4]
Review of the record makes it clear that the trial judge did not abuse his discretion in denying the motion for mistrial. The only "evidence" supporting that motion was the testimony of Mr. Pickett which the trial judge found wholly unreliable and unbelievable. Absent a showing of abuse of discretion, the trial judge's denial of the motion for mistrial will not be disturbed on appeal. State v. Manning, 380 So. 2d 54, 58 (La.1980); State v. Fuller, 414 So. 2d 306, 308 (La.1982). For the reasons stated above, these assignments are without merit.
ASSIGNMENT OF ERROR NO. 12
Through this assignment the defendant argues that the sentences imposed constitute an excessive sentence.
In accordance with La.C.Cr.P. art. 894.1, the trial judge set forth his rationale for the length and imposition of the sentence. During the pre-sentencing hearing, the trial judge found that defendant had not taken heed of prior leniency by the court system. Defendant has been convicted of crimes on at least four previous occasions. One of the convictions was for a felony and another of the convictions was for criminal damage to propertythe same crime involved in this case. In each instance, he received a suspended sentence and was placed on supervised probation. The trial judge further found that defendant, or others on his behalf, made threats of personal injury to investigating officers and witnesses. This conduct created a high state of tension in the community. Also, there was no attempt made by defendant to compensate the victim for their expenses incurred because of defendant's criminal conduct.
The trial judge considered mitigating factors; such as, defendant and his victims are either long term neighbors or related, the criminal conduct may have been a result of a long term dispute between him and his relatives, and imprisonment might impose some psychological hardship upon defendant. However, the record of the sentencing hearing shows the trial judge felt that a lesser sentence would deprecate the seriousness of the crime and that there was an undue risk the defendant will commit another crime.
"Given compliance with La.Code Crim.P. art. 894.1, a sentence will not be set aside as excessive absent manifest abuse of the trial judge's sentencing discretion. State v. Spencer, 374 So. 2d 1195 (La.1979); State v. Sepulvado, [367 So. 2d 762 (La.1979)]. The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So. 2d 355 (La.1980); State v. Goode, 380 So. 2d 1361 (La.1980)."
State v. Smack, 425 So. 2d 737, 740 (La. 1983). We do not find the sentence imposed to be so disproportionate to the crime as to shock our sense of justice.
Defendant also argues that the trial judge erred by making the first two sentences run consecutive.
"For an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed, especially where the convictions arise out of the same course of conduct within a relatively short period. State v. Jacobs, [383 So. 2d 342 (La.1980)]. However, consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public, similar to those posed by habitual or by dangerous offenders."
State v. Carter, 412 So. 2d 540, 546 (La. 1982).
In State v. Carter, the defendant was convicted of the extremely heinous crimes *1116 of aggravated rape and attempted murder. In that respect, State v. Carter can be distinguished from the present case. However, in the instant case, the record of the sentencing hearing shows the trial judge found defendant Simpson had previously been convicted of a felony offense and his past conduct and repeated criminality created a high state of tension in the community. Under the circumstances we are unable to say that the trial judge abused his discretion in making the sentence for conspiracy to commit criminal damage to property consecutive with the sentence for criminal damage to property.
For the reasons stated above, assignment of error number twelve is without merit.
ASSIGNMENT OF ERROR NO. 13
Defendant has failed to brief this assignment, it is therefore considered abandoned. State v. Dewey, 408 So. 2d 1255 (La.1982); State v. Crawford, 441 So. 2d 813 (La. App.3d Cir.1983).
DECREE
For the reasons assigned, defendant's convictions and sentences are affirmed.
AFFIRMED.
NOTES
[1] See Record p. 444-45.
[2] See Record p. 445.
[3] See Record p. 453.
[4] See Record p. 685-6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626263/ | 345 S.W.2d 244 (1961)
Mary L. KNOX, Widow, Patricia D. Knox and Barbara A. Knox, Minor Children (Robert
v.
Knox, Deceased, Employee), Claimants and Respondents,
v.
LAND CONSTRUCTION COMPANY, Employer and Appellant, and Fireman's Fund Indemnity Company, Insurer and Appellant.
No. 23262.
Kansas City Court of Appeals. Missouri.
April 3, 1961.
*245 William H. Sanders, Caldwell, Blackwell, Oliver & Sanders, and James M. Moore, Kansas City, for appellants.
Richard W. Mason, St. Joseph, Abe Goldman, St. Joseph, of counsel, for respondents.
MAUGHMER, Commissioner.
The Industrial Commission of Missouri modified a compensation award and the Circuit Court of Buchanan County affirmed. The employer and insurer have appealed. It does not affirmatively appear that the amount involved exceeds $15,000. Therefore, jurisdiction is with this court.
Robert V. Knox, a resident of St. Joseph, Missouri, was killed January 17, 1956, as a result of an automobile collision. The accident occurred in Marshall County, Kansas, and arose out of decedent's employment with the Land Construction Company. At the time of his death Mr. Knox was 45 years of age and his wages were in excess of $60 per week. His widow, Mary L. Knox and two minor daughters, Patricia and Barbara, survive him.
On March 13, 1956, an "award on agreed statement of facts" was entered by a referee, Division of Workmen's Compensation. Benefits thereunder (to the widow for herself and to her for the minor children) included death benefits of $12,000, payable from January 17, 1956, at the rate of $35 per week for 342 plus weeks and $400 funeral expenses. The employer, Land Construction Company, and the insurer, Fireman's Fund Indemnity Company, appellants here, paid the $400 funeral allowance, $397.85 in medical aid, and $3,800 (108.57 weeks) in weekly death benefits, aggregating $4,597.85. No further payments under the award have been made.
In March, 1956, Mary L. Knox, widow, through her attorneys, Richard W. Mason, St. Joseph, Missouri, and R. F. Galloway, Marysville, Kansas, filed suit in the District Court of Marshall County, Kansas, asking $25,000 damages under the Kansas Wrongful Death Statute, G.S.1949, 60-3201 et seq. Trial resulted in a verdict and *246 judgment in the amount of $22,500. On appeal the Supreme Court of Kansas affirmed. Knox v. Barnard, 181 Kan. 943, 317 P.2d 452. When this judgment was paid it amounted, with accrued interest, to $23,896.88, which amount is for our purposes the "amount of recovery effected by dependent against a third person." This third party litigation was handled entirely by Mrs. Knox and her attorneys. Neither the employer nor the insurer, nor their attorneys, took any part therein although they knew the litigation was in progress and their claim agent from time to time talked with Mr. Mason about it.
The full amount of the judgment was paid to Mrs. Knox and her attorneys. Her chief counsel and fellow resident of St. Joseph, Missouri, Mr. Richard W. Mason, undertook allocation and distribution of the $23,896.88. By his letter of January 13, 1958, Mr. Mason advised the insurer that division of the recovery had been made as follows:
Trial and traveling expense in connection with Kansas suit, $ 626.81
Fifty percent attorneys' fees ($2500 was paid to Kansas associate counsel) $11,635.00
Balance to Mrs. Mary L. Knox, dependent, $11,635.07
Total, ................ $23,896.88
In this letter Mr. Mason further calculated the insurer's share in the recovery to be $5,137.93, which he treated as a credit on future compensation payments to the extent of 165 3/4ths weeks. Apparently there was no response from the insurer and on October 14, 1958, and again on April 22, 1959, Mr. Mason wrote letters to Fireman's Fund Indemnity Company, urging resumption of compensation payments to Mrs. Knox. Under date of October 28, 1959, counsel for the employer and insurer filed with the Industrial Commission of Missouri a motion to modify and change the award for death benefits which had been entered on March 13, 1956. Therein it was alleged "that there is a dispute between the dependents and the employer and insurer as to the proportionate share of expenses to be charged against the employer and insurer and the amount of a reasonable attorney fee to be allowed and the amount to be credited to the employer and insurer on said award."
On February 29, 1960, the Commission entered its order modifying the original award. This order recited the recovery of $23,896.00 and then ruled: (1) that appellants' interest in the recovery is in that proportion which the original total award ($12,797.85) bears to the total amount recovered ($23,896.00) or 53.56 percent; (2) the trial expense of $626 and the attorney fees of $11,635 (50 percent contingent) were fair and reasonable, and approved deduction of same, leaving a balance or net recovery of $11,635.07; (3) that the employer and insurer are entitled to be credited with 53.56 percent of the net recovery ($11,635.07) or $6,231.71, which is the equivalent of 178.05 weeks of compensation at $35 per week; (4) that to this 178.05 weeks, shall be added 108.57 weeks which have been paid, making a total of 286.62 weeks paid by either cash or credit; (5) that the employer and insurer shall be absolved from further liability until July 17, 1961, this being 286.62 weeks after the employee's death on January 17, 1956. That on July 17, 1961, the employer and insurer shall resume payment of death benefits for 55.95 weeks in final and complete satisfaction of the award. We note that 56 weeks of benefits at $35 per week, totals $1,960. This amount, the Commission ruled, was still owed to dependents.
The judgment of the Circuit Court of Buchanan County affirmed this modified award of the Commission. On appeal the employer and insurer allege there was no substantial evidence to justify an allowance of a 50 percent attorney fee. They assert further that the balance of recovery was not apportioned in accordance with the statutory requirement of Section 287.150, V.A.M.S. (as amended, Laws 1955, p. 597), that the Commission erred in treating all of the appellants' share in the recovery as *247 advance payments, rather than paying direct to them "the amount due the employer" and that it was error not to treat all of the recovery paid to dependent as advance payments of future installments of compensation.
Originally most states passed rather restricted Workmen's Compensation Laws. Legislatures and courts seemed fearful of possible double recovery and had no desire to promote litigation. It is elementary that a claimant should not be allowed to keep the entire amount both of his compensation award and his common law damage recovery. The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay and give the employee the excess. This is fair to everyone; the employer who, in a fault sense, is neutral, comes out even; the third person pays exactly the damages he would normally pay, which is correct, since to reduce his burden because of the relation between employer and employee would be a simple windfall to him, which he had done nothing to deserve; and the employee gets a fuller reimbursement for actual damages sustained than is possible under the compensation system alone. However, in recent years as our experience with Workmen's Compensation Laws has increased, there has been a tendency in many states to broaden their laws with respect to distribution of the proceeds from third-party actions. In Larson's Workmen's Compensation Law, Vol. 2, par. 74.31, p. 209, we find this statement: "Under most subrogation statutes the payor of compensation gets reimbursement for the amount of his expenditure as a first claim upon the proceeds of the third-party recovery, and the employee gets the excess. Some of the leading compensation states are beginning to vary this slightly. In Massachusetts the employee gets only four-fifths of the excess, presumably on the theory that the subrogee will thereby have a greater incentive to sue or settle for more than the bare amount necessary to cover the compensation expenditures. In New York the employee gets the entire excess over the employer's compensation outlay if the employee himself is the plaintiff, but only two-thirds if the employer or insurer is the plaintiff. This gives the employee, who under the New York statute has the first opportunity to sue, a financial motivation for taking direct action against the tortfeasor; it also impels the subrogee, if the cause of action passes to him, to achieve as large a recovery as possible, and to refrain from the temptation of making an easy settlement for no more than the out-of-pocket compensation cost."
In Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 919 (decided 1950 under the Missouri Act as it then existed) it was held that "* * * whoever, the employer or the employee, recovers against a third person tort-feasor holds so much of such recovery as in truth and in fact belongs to the other as an express trustee the employee so see that the employer's right of subrogation is protected, and the employer to see that the employee receives any surplus after his indemnification. (citing cases)".
The process of allocation, division, distribution and credit of proceeds secured in recovery against a third party is provided for by Section 287.150, V.A.M.S., as amended, Laws 1955. There seems to be little doubt as to the mechanics where the recovery against the third person is made by the employer. Subsection (1), after declaring that the employer shall be subrogated to the right of the employee or dependents against such third person, and that his recovery shall not be limited to the amount payable as compensation, states: "Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments *248 of compensation." It seems evident that where there is an employer recovery, the expenses of making such recovery shall first be paid, then the employer shall be reimbursed for the amount of compensation which he has paid, and the balance shall be paid to the employee or the dependents, and shall be treated as an advance payment on account of any future installments of compensation.
However, the Legislature saw fit to enact a separate provision where recovery against a third party is effected by the employee or his dependents. (Now subsection 3, section 287.150, V.A.M.S.). This provision, as we interpret it, offers an incentive for the employee or dependent to bring the third-party action in that he may thereby secure a greater net recovery than he will if the employer or insurer effects the recovery. This subsection, as amended in 1955, provides: "Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorneys fee has been paid the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered, or the balance of the recovery may be divided between the employer and the employee or his dependents as they may agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation."
Appellants' first point has to do with the reasonableness of the 50 percent attorney fee allowance. The Commission has authority to pass on this matter. Section 287.260, V.A.M.S., Workmen's Compensation, provides in part: "All attorney's fees for services in connection with this chapter shall be subject to regulation by the commission and shall be limited to such charges as are fair and reasonable and the commission shall have jurisdiction to hear and determine all disputes concerning the same."
Two expert witnesses expressed an opinion as to the amount of a reasonable attorney fee in this case. Appellants' witness said from $5,000 to $7,500. The other that 50 percent was fair and reasonable. Mrs. Knox testified that she was satisfied with the amount of the attorney fee. Mr. Mason, chief counsel for the widow, testified in some detail as to the extent of services performed, including the actual time devoted to preparation, trial, appeal and final distribution. Measured entirely upon a per diem or per hour basis, a fee of 50 percent or $11,635 would not be justified. However, the time consumed is not the only element to be considered. Under a contingent fee, there is no payment unless a recovery is effected. This suit was by a Missouri resident in a Kansas court. This necessitated employment of Kansas counsel and $2,500 of the total fee went to the Kansas lawyer. Here recovery was not effected by compromise nor even after a jury trial but only after successfully defending against an appeal to the Kansas Supreme Court. Twenty-five Thousand Dollars is the maximum recoverable in a Kansas death case. This recovery was for 90 percent of the maximum. We believe there was substantial evidence supporting the Commission's allowance and approval of 50 percent as a reasonable attorney fee. We shall not disturb its finding or that of the Circuit Court on this point.
We shall next endeavor to apply the statute, Section 287.150, subd. 3, 1955, as amended, supra, and divide the recovery. To begin with it should be noted that the third-party net recovery here ($11,635.07) is less than the amount of the compensation *249 award ($12,797.85). Step 1. "The employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee." The employer share is the proportion which the award ($12,797.85) bears to the total recovery ($23,896.88) or 53.56 percent. The expenses of recovery include expenses of $626.81, plus the attorney fee of $11,635 or a total of $12,261.81. The employer's proportionate share thereof is 53.56 percent or $6,567.41 and the dependent's share is 46.44 percent or $5,694.40. Step 2. After this payment "the balance of the recovery shall be apportioned * * * in the same ratio that the amount due the employer bears to the total amount recovered". Appellants say "the amount due the employer" as here used, means the amount already paid by the employer on the compensation award. We think the meaning would be clearer if the statute read the "employer's share" rather than "the amount due the employer". However, appellants' proposed method is both unreasonable and unworkable. Under their theory the employer's share in the net recovery is (as $4,597.85, amount paid, is to $23,896.88, amount of total recovery) 19.24 percent or $2,238.59, which amount, they contend, should be paid to the employer. This would leave the widow receiving $9,396.44 from the recovery, plus the $4,597.85 compensation benefits already paid to her or a total of $13,994.29. Thus she would be in effect paying $9,902.59 of the expenses when her share is only $5,694.40, and the employer would be paying only $2,359.22, when his share is $6,567.41. Suppose under appellants' theory no compensation benefits had been paid. In that event the net recovery of $11,635.07, according to their interpretation, should be applied on the compensation award, leaving employer owing only $1,162.78 in future compensation benefits. Under this plan, out of this total recovery of $23,896.88, attorney fees and expenses would take $12,261.81, the widow would receive only the net amount of the compensation award of $12,797.85, and the employer-insurer would be out only $1,162.78. Stated differently, the employer would take all of the recovery after expenses and the widow would receive only the amount of the compensation award. The proposed method is mathematically inexact and unsound. We reject this interpretation. We rule that the employer's share in the net recovery is 53.56 percent, the same as his proportionate share in the total recovery. This amounts to $6,231.74, and is the employer's statutory proportionate net share of the recovery after payment of attorney fees and expenses.
How shall the net recovery of $11,635.07 be divided ? What is the "Amount due to the Employer" (and Employee) which shall be paid forthwith ? First, the widow's share in the net recovery, 46.44 percent or $5,403.36 shall be paid to her unencumbered. Second, the insured was killed on January 17, 1956; the original award entered March 13, 1956 awarded compensation in the sum of $12,000 in death benefits, payable at the rate of $35 per week, commencing as of January 17, 1956, the date of the employee's death and continuing for 342 4/7ths weeks. The recovery was effected December 3, 1957, on which date 98 installments or $3,430 was due under the award. The employer-insurer took no steps to secure a lawful division of this third-party recovery, although they knew the same had been effected and had been advised by claimant's counsel that the net recovery had been paid to the widow. Rather the employer-insurer made 10 4/7ths additional payments for a total of 108 4/7ths weeks in the total amount of $3,800 and then nearly two years later on October 29, 1959, filed with the Commission a motion to modify the original award. This motion assailed both the payment of the 50 percent attorney fee and the distribution of the net recovery as made by claimant's counsel.
If the employer-insurer had asserted their right to a division when the recovery was effected and had not passively acquiesced for almost two years in the payment *250 of the full amount to the widow, we think they would have been entitled to a division as of December 3, 1957, the recovery date. As of that date they were entitled to recoup from their share of the net recovery of ($6,231.74), the amount of benefits ($3,430) actually paid by them at that time, plus the $797.85 paid for funeral benefits and medical aid. The balance of their share of the recovery ($2,003.89) should thereupon have been paid to the widow and treated as advance payments (57 1/4 weeks) which would have paid all installments accruing up to and including January 10, 1959, making the total of benefits paid by cash or credit, $5,433.89 or 155 1/4 weeks, which would pay the award until January 17, 1959, at which time the employer-insurer should resume payments and continue for 187 2/7ths weeks, totaling $6,555, which would pay the award in full (342 4/7ths weeks).
After applying this formula, we find that the widow would receive:
$ 797.87 funeral and hospital benefits.
$ 3,430.00 benefits accrued and already paid when
recovery was effected.
$ 6,555.00 future payments to be made.
$ 7,407.25 cash from the net recovery.
----------
$18,190.12
$ 5,694.40 add her proportionate share of expenses.
----------
$23,884.52
From this computation we see that the widow would receive the amount of the recovery less her proportionate share of the expenses.
The employer-insurer position would be as follows: At the time of recovery they had paid out $4,227.85 in benefits, medical and burial, but recouped this amount in full from the recovery. After taking credit for the balance of their share in the recovery ($2,003.89) they would be required to make future payments of $6,555, which, with the credits received from the third-party recovery, would completely discharge the award of $12,797.85. If we deduct from the total award their proportionate share of the expenses ($6,567.41) we get the figure of $6,230.44 (employer's share of the net recovery) and find that the employer-insurer has thus recouped the amount of the award ($12,797.85) less their proportionate share of the expenses ($6,567.41) or $6,230.44.
While the end result will be the same, we do not believe this identical procedure can be applied in our particular case because (1) defendants continued to pay benefits after recovery was effected and (2) defendants did not seek or ask for a division until October 29, 1959, almost two years after the recovery and thereby, we think, consented to or at least acquiesced in the payment of their share in the recovery to the plaintiff. Under such circumstances this Court and the Commission can only see to it that they receive full credit therefor on their award obligation.
In our case the employer has already paid, by cash or credit:
$ 797.85 Funeral and medical expense $ 3,800.00 Benefits paid. 108 4/7ths weeks' compensation. $ 6,231.74 Employer's share award 178 weeks' compensation-credit. ---------- --- $10,829.59 Total credits 286 4/7ths weeks' compensation. $ 1,968.26 Still due on award or 56 weeks' compensation. -------- The second and third items pay the compensation award until July 17, 1961, at which time payment of death benefits shall be resumed and continue for 56 weeks and *251 until the compensation award is fully satisfied.
Our procedure is at least substantially the same as that applied by the Industrial Commission. Our calculations arrive at the same totals except that in some of the computations there are slight variances in amounts. Therefore, we find the judgment of the trial court affirming the "order modifying award" entered herein on February 29, 1960, by the Commission to be correct.
The judgment is affirmed.
SPERRY, C., concurs.
PER CURIAM.
The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626276/ | 464 So. 2d 1181 (1985)
Douglas Marshall JACKSON, Appellant,
v.
STATE of Florida, Appellee.
No. 63043.
Supreme Court of Florida.
January 31, 1985.
Rehearing Denied April 4, 1985.
Michael D. Gelety, Fort Lauderdale, for appellant.
Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
PER CURIAM.
The appellant, Douglas Marshall Jackson, appeals his multiple convictions of first-degree murder and the imposition of the death penalty for those convictions. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. For the reasons expressed, we find that under the peculiar circumstances of this case, the trial court erroneously denied a defense motion for continuance and required appellant to go to trial with counsel who, because of his physical condition, was not able to effectively represent appellant in this death case. For this reason, we reverse for a new trial.
The facts of this case, with regard to this dispositive issue, are as follows. Appellant's counsel, an attorney in private practice, was retained by appellant's parents to represent appellant in the trial of this cause. Newly-appointed counsel represents appellant in this appeal. The trial was originally scheduled for August 17, *1182 1981. Six days before the trial, counsel for appellant filed a motion for continuance based upon unresolved issues concerning the charging documents, incomplete discovery and investigation, and the general inability of defense counsel to adequately prepare a defense before the scheduled beginning of the trial. The trial court granted this motion and the trial was rescheduled for October 19, 1981. On October 14, 1981, counsel for appellant filed another motion for continuance. This motion was based primarily on the adverse effect of medication prescribed for appellant's counsel because of a recent head injury. The motion alleged that trial counsel suffered a head injury on August 17, 1981, for which medication had been prescribed. It was further alleged that the medication caused the side effects of slurred speech and drowsiness, and that these temporary side effects could impair the effectiveness of his representation of the appellant before the jury. At the hearing on this motion, the state acknowledged that it was aware of defense counsel's injury and deferred to the trial judge's discretion with regard to the motion. The trial judge denied the motion upon his belief that defense counsel was adequately articulating matters then before the court for resolution.
During the course of the jury selection and during the trial itself, defense counsel made several references to his medical problems and how they were adversely affecting his performance. At one point during the proceedings, counsel made an oral motion to withdraw based upon his inability to effectively assist his client. The trial court denied this motion.
The issue of counsel's ability to effectively assist appellant was again raised in a post-conviction motion for new trial, which was filed on November 6, 1981, but which was not heard by the trial court until December 2, 1982. The motion was supplemented with an affidavit from his treating physician which stated that counsel had been treated prior to trial for a head wound and high blood pressure and that, at the time of the trial, he was on medication which had the known side effects of slurred speech and drowsiness. The physician also stated in the affidavit that, three months after the trial, he had certified that counsel should not be involved in trials for ninety days. The trial judge denied the motion for a new trial.
We recognize that the decision to grant or deny a motion for continuance is within the discretion of the trial court and that, when such a motion is denied, it may be reversed on appeal only when there has been a showing that the trial judge abused his discretion. Williams v. State, 438 So. 2d 781 (Fla. 1983), cert. denied, ___ U.S. ___, 104 S. Ct. 1617, 80 L. Ed. 2d 146 (1984); Jent v. State, 408 So. 2d 1024 (Fla. 1981), cert. denied, 457 U.S. 1111, 102 S. Ct. 2916, 73 L. Ed. 2d 1322 (1982); Magill v. State, 386 So. 2d 1188 (Fla. 1980), cert. denied, 450 U.S. 927, 101 S. Ct. 1384, 67 L. Ed. 2d 359 (1981); Cooper v. State, 336 So. 2d 1133 (Fla. 1976), cert. denied, 431 U.S. 925, 97 S. Ct. 2200, 53 L. Ed. 2d 239 (1977). The law is also clear, however, that when the unrefuted facts establish that the physical condition of a trial attorney prevents the attorney from adequately representing his client, the failure to grant a continuance is reversible error. See Thompson v. General Motors Corp., 439 So. 2d 1012 (Fla. 2d DCA 1983); Palmer v. State, 380 So. 2d 476 (Fla. 2d DCA 1980); Diaz v. Diaz, 258 So. 2d 37 (Fla. 3d DCA 1972); see also Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933)(serious illness of attorney's wife). The record in this case is unrefuted that defense counsel suffered a head injury prior to trial and was taking medication that caused drowsiness and dizziness. In addition, his physician subsequently indicated that counsel should not be involved in trial work while recovering from this condition.
We realize that, in most circumstances, the trial court should be restrictive in granting motions for continuances and must always be watchful that counsel is *1183 not manipulating or improperly delaying the judicial process. Given the unrefuted facts in this record, however, we hold that a continuance was required and, accordingly, we reverse appellant's convictions and remand for a new trial.
Although not required to do so in light of our disposition of this case on the appellant's first issue, we deem it appropriate to briefly address the refusal of the trial court to permit the backstriking of jurors during jury selection. In this cause, the trial judge stated during voir dire, "There is not going to be any backstrikes; do you understand that?" and "I want to be sure there are no more backstrikes on either side." We recently addressed this issue in Rivers v. State, 458 So. 2d 762 Fla. 1984), in which we reaffirmed the right of a defendant to challenge any juror peremptorily before the jury is sworn. This principle of law was adopted by this Court more than one hundred years ago in O'Connor v. State, 9 Fla. 215 (1860), in which this Court stated:
[I]f the prisoner, at any time before any juror was or jurors were sworn, had retracted his election of such juror or jurors and expressed his desire to challenge him or them, it was his right to do so until the whole of his peremptory challenges were exhausted.
Id. at 229. See also Jones v. State, 332 So. 2d 615 (Fla. 1976). We again emphasize that a party may challenge any juror at any time before the jurors are sworn. A trial judge has no authority to infringe upon a party's right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn.
For the reasons expressed, we find that we must reverse appellant's convictions and remand for a new trial.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626301/ | 17 Mich. App. 151 (1969)
169 N.W.2d 351
PAPIN
v.
DEMSKI
Docket No. 4,566.
Michigan Court of Appeals.
Decided April 23, 1969.
Leave to appeal granted August 5, 1969.
Lacey & Jones (E.R. Whinham, Jr., of counsel), for plaintiffs.
Smith, Brooker, Harvey & Cook, for defendants.
*153 BEFORE: McGREGOR, P.J., and R.B. BURNS and DANHOF, JJ.
Leave to appeal granted August 5, 1969. See 382 Mich. 772.
DANHOF, J.
Plaintiffs Gerald and Delpha Papin purchased a business known as the Mackinac Trail House, a combination motel, restaurant, snack bar and cocktail lounge in Pinconning, Michigan, on August 4, 1966. Defendants George and Mary Jane Demski were the vendors.
On June 20, 1967 plaintiffs brought suit seeking to enjoin defendants from transferring or enforcing any of the several agreements entered into regarding the sale of the Mackinac Trail House, praying for rescission of the agreements and restitution of sums expended because of the sale, and for damages as a result of breach of contract.
The basis for seeking such relief was that the plaintiffs were furnished by the defendants a statement of cash income and expenses for the Mackinac Trail House for the year 1965 that was in error in that it substantially understated the costs and expenses, and that plaintiffs relied upon the statement in entering into the agreements of August 4, 1966.
The trial court issued a temporary restraining order on the date suit was filed, and a show-cause hearing was held on June 29, 1967, at which time defendants were restrained from enforcing any rights under the agreements except in the trial court.
The defendants then filed a counterclaim seeking foreclosure of certain of the agreements of the sale of August 4, 1966, and in addition brought a third-party complaint against Arthur Ditzik, doing business as Tyler Realty and Investment Company, and Austin R. Keathley, the real estate brokerage company and salesman who handled the sale.
*154 By agreement of the parties, plaintiffs added a count of breach of warranty to their complaint and defendants amended their counterclaim to include a claim for the commission paid the broker.
At the trial it was established and was undisputed that the statement of cash income and expenses given to plaintiffs by defendants' agents was substantially in error because of omissions of cost and expense items. The error was consummated in an erroneous statement labeled:
"Profit (or cash flow)-$19,197.87."
An accurate reflection of the account books of the Mackinac Trail House for the year 1965 would have been $10,735.48, or a difference of $8,462.39.
At the conclusion of the trial, the court found that the defendants were entitled to foreclosure and dismissed their third-party complaint.
Plaintiffs filed a motion for reconsideration asking for a decision on their claim of breach of warranty and a determination that the decision made was contrary to a clear preponderance of the evidence and applied an improper standard of law.
On November 20, 1967 arguments were heard on the motion and it was denied.
Initially, the burden of proof in this case, as always, was on the plaintiffs. It was essential to their cause of action based on fraud that certain facts be established. Our Supreme Court in A & A Asphalt Paving Company v. Pontiac Speedway, Inc. (1961), 363 Mich. 634, 639, quoted with approval the following statement relative to the essential facts:
"The general rule is that to constitute actionable fraud it must appear: (1) that defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or *155 made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery."
Since the plaintiffs seek the equitable relief of rescission and restitution, this appellate court must review all the proceedings in the court below. Thomas v. Whyte (1966), 5 Mich. App. 281.
We address ourselves now to the first fact that plaintiffs had to prove, namely, that defendants made a material misrepresentation. During the course of the negotiations for the sale, plaintiffs were given a statement of income and expenses for the year 1965 which was incomplete and inaccurate in that it showed a profit (or cash flow) of $19,197.87 when in fact if all the expenses had been deducted this figure would have been changed by $8,462.39 resulting in a profit (or cash flow) of only $10,735.48. The most persuasive proof of the materiality of this misrepresentation was the fact that the plaintiffs would have to pay approximately $15,000 yearly in interest and principal on their purchase money debt.
Defendants argue that their misrepresentation, if any, was not material because the inducement for the purchase was the opportunity for plaintiffs to buy the Mackinac Trail House, built for $350,000 in 1961, at the bargain sale price of $200,000. This Court does not conceive the test of materiality as requiring that the misrepresentation relate to the sole or major reason for the transaction, but only that it relate to a material or important fact. That plaintiffs may have thought they were getting the *156 Mackinac Trail House at a bargain price does not preclude there being other material facts, such as the yearly profits of the business, as to which there may have been a material misrepresentation.
With regard to the second element of fraud, the falsity of a material misrepresentation, there is no real issue as the falsity of the statement of income and expenses was clearly established. In fact, much of the trial testimony related to whether the falsity had been cured by a subsequent opportunity on the part of the plaintiffs to examine accurate books.
Turning now to the third essential fact of fraud, that when it was made, the defendants knew it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion, it was not necessary for plaintiffs to prove that defendants knew the statement was false at the time it was given to plaintiffs. As long ago as 1866, Justice COOLEY, speaking for a unanimous court, said in Converse v. Blumrich (1866), 14 Mich. 108, 123:
"If one obtains the property of another, by means of untrue statements, though in ignorance of their falsity, he must be held responsible as for a legal fraud."
It was enough for plaintiffs to prove that defendants made the false representation recklessly, without any knowledge of its truth and as a positive assertion. This burden of proof plaintiffs sustained when they showed that the assertion was contained in one of the documents presented by defendants' agent to plaintiffs in an effort to induce plaintiffs to buy the Mackinac Trail House. The foregoing proof also supported the fourth element of fraud as set forth in A & A Asphalt v. Pontiac Speedway, supra, namely, that defendants made it with the intention that it should be acted upon by plaintiffs.
*157 Additionally, George Demski's own testimony leaves any claim of his innocence as to the false representation doubtful, as he testified that he signed an agreement to purchase that had attached to it the false statement purporting to show a profit of $19,197.87, and then testified further that during the years of his entire operation of the Mackinac Trail House he never made a nickel, and that he took the losses his business sustained to reduce his income tax.
We consider now the fifth element of fraud, that plaintiffs acted in reliance upon a material misrepresentation. This is the crux of this case with plaintiffs arguing that the burden of establishing that there was no reliance upon the misrepresentation was upon defendants who made the misrepresentation, citing Smith v. Werkheiser (1908), 152 Mich. 177 (15 LRA[NS] 1092), and Sautter v. Ney (1961), 365 Mich. 360, and the defendants arguing that the plaintiffs' prior business experience as motel owners, and their access to books which were accurate, plus their desire to buy the business at a bargain price, proved that the defendants had carried the burden of proof that there was no reliance, as required by Sautter v. Ney.
In the case of Smith v. Werkheiser, supra, which is factually close to the instant case, defendant sold a newspaper to plaintiffs based upon certain false representations, one of which was that the newspaper had a circulation of 4,000 when in actuality its circulation was 2,500. In spite of the false representations, plaintiffs chose to keep the property. In a subsequent foreclosure suit, the original defense was raised. On appeal defendant argued that complainants had placed no reliance upon their misrepresentation, but instead relied upon an examination of the books which contained a correct statement of *158 the circulation. The Court rejected defendants' argument in the following language at p 180:
"In short, we are bound to say that their examination of the books did not lead complainants to discredit the false statements made to them. It is urged that inasmuch as the books were placed at their disposal complainants were bound to ascertain the truth and to place no reliance upon the false statements that had been made to them. This is not the law. A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud. Smith v. McDonald (1905), 139 Mich. 225; Bristol v. Braidwood (1873), 28 Mich. 191. We are therefore of the opinion that it must be said that complainants did rely upon the false representations and that they did therefore have a cause of action against the members of the firm of W.H. Werkheiser & Sons for the alleged fraud."
The more recent case of Sautter v. Ney, supra, concerned the sale of a motel. Defendants, the owners, listed it with a broker for sale at $85,000. Plaintiffs, the purchasers, paid $28,500 down and agreed by executory contract to pay the balance by monthly installments. Six months later plaintiffs demanded to see the books in order to determine the gross business done by defendants in past years. Shortly thereafter, they commenced suit for rescission, alleging fraud in the inducement. Plaintiffs won in the lower court and were allowed to rescind the contract. On appeal, the Supreme Court concluded that the plaintiffs relied on the representation of defendants and their broker that the motel grossed approximately $21,000 during each of the two previous years despite the defendants' contention that plaintiffs actually learned prior to executing the contract, that the motel grossed only about $17,000 per year, thereby evidencing no reliance upon their representation. *159 The Court, in a unanimous opinion, stated at pp 363-365:
"To defeat an otherwise righteous cause for fraud, by means of allegation that the plaintiff had timely knowledge of the fact he says was falsely represented, proof of negligence on his part will not suffice. The representation and its materiality proven, it must be shown that the plaintiff's knowledge was so informatively complete as to render the allegation of reliance quite as false as the representation. The Court, in a unanimous opinion, steadily cited case of Eaton v. Winnie (1870), 20 Mich. 156 (4 Am Rep 377), and continuing through Matteson v. Weaver (1924), 229 Mich. 495, 499, the rule is settled that (quotation from Eaton, p 166):
`Where one assumes to have knowledge upon a subject of which another may well be ignorant, and knowingly makes false statements regarding it upon which the other relies, to his injury, we do not think it lies with him to say that the party who took his word and relied upon it as that of an honest and truthful man, was guilty of negligence in so doing, as to be precluded from recovering compensation for the injury which was inflicted upon him under cover of the falsehood. If a party's own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of that quality and produced a false sense of security.'
"In the disclosed circumstances of this case defendants bore below and bear here the burden of persuasion that plaintiffs' knowledge of the falsity of their representation was both timely and complete. The chancellor was not convinced, nor are we, that defendants have carried such burden. See the like case of Johnson v. Campbell (1917), 199 Mich. 186, where the ultimate facts were much the same as here. Even if plaintiffs were shown, prior to signing *160 of the contract, certain `books' of the business which disclosed material facts as in the Johnson Case (which we do not hold or affirm), that alone would not acquit the defendants. As in Johnson, other and additional facts, outlined above, warranted Judge Bach's finding that the knowledge of plaintiffs was not complete and that they did in fact rely upon those who possessed superior and personal knowledge of that which was represented to plaintiffs in the inducement."
Thus, the test emerging from the cases puts a clear burden on defendants to show that plaintiffs' knowledge was so complete as to make the allegations of reliance by plaintiffs quite as false as the representation itself. Defendants in this case do not cite any cases which contradict this formulation of the law.
Examination of the trial judge's opinion shows that he concluded that due to plaintiffs' prior business experience, they had a duty to make more diligent inquiries. The trial judge stated:
"I think inferences can be made as to a person's knowledge or understanding. A person will normally be presumed to know what would and should be known by an ordinarily informed and prudent person situated like himself. A person who has knowledge of facts which lead an honest and ordinarily cautious man to make further inquiries is presumed to have taken notice of facts that he would readily have ascertained, if he used ordinary diligence and pursued it further. This, they did not do. Representation was made yes insofar as the cash flow statement is concerned, but coupled with other facts, it would at least require a further look into it. I am convinced in my own mind, that is why I am making this finding of these things."
This is clearly not the test established in Smith v. Werkheiser, supra and Sautter v. Ney, supra.
*161 At the time of the motion for reconsideration, plaintiffs' attorney specifically advised the judge that the foregoing quotation from his opinion indicated that an improper standard had been applied in view of the holding in Sautter v. Ney, supra.
The court said:
"Maybe I concluded there was a finding of negligence on the part of the Papins, which is not what the court meant to convey.
"The court indicated there was a representation of a cash flow before the accountant's report. It was not solely upon this that the Papins relied. Other representations in addition to the cash flow were relied upon an investigation that they themselves performed was relied upon. The cash flow statement at the time, in February, established it was a cash flow statement. There were ample times I don't see where this case falls anywhere within Sautter v. Ney, * * * (Emphasis supplied.)
"Here, I am not too sure there was a false representation or, if there was a false representation, and, if there was, it was not a material fact representation upon which the Papins relied. I think in this case, even if it were allowed, would not fall right within Sautter v. Ney.
"The representation and its materiality proven, it must be shown that the plaintiff's knowledge was so informatively complete as to render the allegation of reliance quite as false as the representation itself. I think the facts in this case would support just exactly that the allegations relied upon are just as false as the alleged misrepresentation itself and I so find."
From the foregoing statements of the trial court, this Court is unable to determine whether or not the trial judge completely rejected the negligence test he applied at the trial. At first he seems to do so, but then he states that it was not solely upon the representation of cash flow that plaintiffs relied, and *162 that plaintiffs performed an investigation of their own. Later, he considers the rule in Sautter v. Ney, supra, and rejects its application to this case, without specifying what rule of law he is following.
The lower court failed to apply accurately the guides set forth by the Supreme Court. Plaintiffs did not owe to the defendants an obligation to use diligence to discover the fraud. Smith v. Werkheiser, supra. The plaintiffs having proven a misrepresentation and its materiality, the burden of proof then shifted to defendants to prove that plaintiffs' allegation of reliance was as false as the representation Sautter v. Ney, supra. We hold that defendants did not sustain this burden.
The final element of a cause of action based on fraud is injury, A & A Asphalt v. Pontiac Speedway, supra. That injury was suffered by plaintiffs is evident when the figures involved in the misrepresentation are compared with the plaintiffs' monthly payments. However, plaintiffs state, and defendants do not deny, that complete restitution cannot be determined on the present state of the record.
The decision of the trial court is reversed and a judgment for the plaintiffs, granting rescission of the contract, will be entered. The matter is remanded to the trial court for the purpose of determining the amount of restitution to be made by defendants (Demskis) to the plaintiffs.
Plaintiffs also filed a claim for damages for breach of warranty. From our examination of the record it appears that the trial court, in view of his opinion in the fraud action, determined the damage claims to be without merit and found for the defendants (Demskis).
However, the record is not clear on this point. Thus, we remand this matter to the trial court for *163 such further action as may be needed to dispose of this portion of the case.
The third-party plaintiffs, appellees, have not raised on appeal the dismissal of their complaint against the third-party defendants, thus the matter is not before us for decision.
Reversed with costs to plaintiffs.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626721/ | 767 So. 2d 1088 (2000)
Andrew J. JOHNSON, Appellant,
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and U.S. Postal Service, Appellees.
No. 1999-CC-01598-COA.
Court of Appeals of Mississippi.
September 26, 2000.
*1089 Andrew J. Johnson, Appellant, pro se.
Mark D. Ray, Jackson, Albert B. White, Madison, John Wesley Garrett, Jr., Clinton, Attorneys for Appellees.
BEFORE SOUTHWICK, P.J., BRIDGES, AND THOMAS, JJ.
SOUTHWICK, P.J., for the Court:
¶ 1. Andrew J. Johnson was discharged from his position with the United States Postal Service for failing to follow instructions and for unsatisfactory job performance. Unemployment benefits were denied because he was found guilty of disqualifying misconduct. We find that decision to be supported by substantial evidence and affirm.
FACTS
¶ 2. Andrew Johnson was employed by the United States Postal Service for more than thirty years as a letter-carrier in the Brookhaven post office. He was terminated in 1998 for repeated failure to follow his supervisor's instructions following previous warnings and suspensions. On the day of the incident that precipitated his termination, Johnson requested one hour of overtime to complete his mail deliveries. After inspecting the volume and mix of Johnson's mail, his supervisor determined that overtime was not warranted. Johnson was told to finish delivering the mail before his scheduled completion time of 4:00 P.M. Johnson stopped at about 3:30 P.M. to call a clerk at the post office and say he would not complete his deliveries. He returned to the post office at 4:12 P.M. with undelivered mail. Another carrier had to be sent to complete the deliveries.
¶ 3. Postal Service policy regarding supervisors' instructions is that employees carry out questioned supervisors' orders and only later file a protest. Johnson did not follow this procedure. On that basis, *1090 together with the prior progressive discipline, he was terminated.
¶ 4. Johnson initially was granted unemployment benefits. However, when the postal service appealed, a hearing was held and the referee found that Johnson had been previously warned and suspended on three occasions for unsatisfactory job performance, absence without approval of his supervisor and failing to follow instructions. The referee further found that Johnson knew of the "obey now, grieve later" procedure and that he failed to follow it. Johnson's conduct was found to be disqualifying misconduct. His unemployment benefits were revoked.
¶ 5. Johnson appealed. Upon consideration of the record, the Board of Review adopted the referees' findings of fact and opinion. Johnson then appealed to the Circuit Court of Lincoln County, which found after an extensive review of the record, that there were sufficient facts to support the referee's original findings and the Board of Review's decision to affirm it.
DISCUSSION
¶ 6. Johnson's appeal is pro se. We are obliged to consider that fact so that meritorious complaints are not lost. Johnson's assignments of error and arguments are not well-developed in his brief. Moore v. Ruth, 556 So. 2d 1059, 1061 (Miss.1990). Therefore, we take some license in interpreting his intended assignments of error.
I. Insufficient Evidence of Disqualifying Misconduct
¶ 7. Our standard of review requires us to leave an administrative agency's findings and decisions undisturbed unless the agency's order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one's constitutional rights. Sprouse v. Miss. Emp. Sec. Comm'n, 639 So. 2d 901, 902 (Miss.1994). A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Id.
¶ 8. Johnson first argues that the referee and the Appeals Board failed to consider certain statutes. Miss.Code Ann. §§ 71-5-1, et seq., and 71-5-513 (Supp. 1999). The latter contains the list of infractions that will disqualify an individual for unemployment benefits. Johnson then quotes the definition of misconduct:
[M]ere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, isolated instances of ordinary negligence, or good-faith errors in judgment or discretion are not considered `misconduct' precluding a discharged employee from unemployment benefits.
Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss.1982). He argues that "there is not enough evidence to prove misconduct" under this standard.
¶ 9. Johnson claims that his behavior was not misconduct because he submitted the correct form requesting an hour of overtime or assistance. When Price refused to approve the overtime, Johnson says he did his best to follow his supervisor's instructions, but that he could not "jeopardize his health and safety and the health and safety of others." Therefore, he returned to the post office without completing his mail deliveries.
¶ 10. The supreme court has defined "insubordination" as a "constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Sims v. Bd. of Trustees, Holly Springs Mun. Separate School Dist., 414 So. 2d 431 (Miss. 1982). Insubordination is within the scope of disqualifying misconduct, according to the supreme court. Shannon Engr'ing & Constr., Inc. v. Miss. Employment Sec. Comm'n, 549 So. 2d 446, 449 (Miss.1989).
Misconduct imports conduct that reasonable and fair-minded external observers would consider a wanton disregard of the employer's legitimate interests. *1091 Something more than mere negligence must be shown, although repeated neglect of an employer's interests may rise to the dignity of misconduct.
Miss. Employment Sec. Comm'n v. Phillips, 562 So. 2d 115, 118 (Miss.1990).
¶ 11. The transcript of the hearing before the referee contains extensive testimony by the supervisor and Johnson concerning the events that led to Johnson's termination. The record considered by the referee and the appeals board contains documentation of the offense in question as well as of at least three previous incidents in which Johnson was disciplined for unsatisfactory conduct. One prior suspension was for seven days, one for 286 days and one for 334 days. These incidents involved refusal to obey orders, refusal to leave work premises and having to be removed by the police, and excessive anger.
¶ 12. The testimony before the referee shows that, after Johnson requested overtime or assistance and was refused, he disobeyed his supervisor's direct command to finish delivering the mail in the time allowed. He even took time away from his duties to call the post office and complain to a clerk that he would not be able to finish delivering the mail on his route. He returned to the post office with undelivered mail instead of following the department's policy of obeying the order and submitting a grievance later. The referee, affirmed by the Board of Review and the circuit court, found this to be sufficient evidence of continuing misconduct to justify disqualification for unemployment benefits. There is a significant fact-finding component in the evaluation of this charge, since whether Johnson had too much mail to deliver timely is not something that we can independently review here. We find substantial evidence that requires us to leave undisturbed the findings made below.
II. Union-requested Arbitration
¶ 13. In his brief, Johnson asks whether the referee considered the fact that the union requested arbitration of the grievance he filed in response to his disqualification for unemployment benefits, but he does not explain why he believes this fact should have influenced the referee's ruling.
¶ 14. The grievance procedure of the National Association of Letter Carriers (NALC) allows letter carriers to challenge postal management in decisions that violate the union's national agreement with management. The union can choose to arbitrate between its members and management in decisions affecting those members. While a decision in Johnson's favor by a union arbitrator might afford him some satisfaction, it is not a factor in the determination of his rights under Mississippi law, and therefore need not be considered by the referee.
¶ 15. Nevertheless, the letter from the NALC stating that it had decided to request arbitration in this matter is included in the record and thus was before the referee, the Board of Review and the circuit court in their review of the case.
¶ 16. The conflicts in the testimony were for prior tribunals to resolve and are not for this appellate court. Within our standard of review, we find no error and affirm.
¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY AFFIRMING THE DECISION OF THE BOARD OF REVIEW IS AFFIRMED.
KING, P.J., BRIDGES, IRVING, LEE, MOORE, MYERS, PAYNE, AND THOMAS, JJ., CONCUR.
McMILLIN, C.J., NOT PARTICIPATING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626445/ | 464 So. 2d 1353 (1985)
Ward D. ZIMMERMAN, Appellant,
v.
VINYLGRAIN INDUSTRIES OF JACKSONVILLE, INC., Appellee.
No. BC-5.
District Court of Appeal of Florida, First District.
March 19, 1985.
Neil A. Malphurs, of Malphurs & Brown, Alachua, for appellant.
Steven R. Heller, Jacksonville, for appellee.
SHIVERS, Judge.
Appellant appeals the trial court's denial of his motion to vacate default and judgment. We reverse and remand.
On November 11, 1982, appellant Zimmerman executed a note in favor of appellee Vinylgrain Industries of Jacksonville (Vinylgrain), mortgaging two parcels of property in Alachua, Florida, for the principal sum of $20,000. Appellant asserts that by the terms of the agreement Vinylgrain was to make necessary improvements valued at $12,000 on one of the parcels. Vinylgrain was to apply the remaining $8,000 to pay off Zimmerman's mortgage to Blanche Leroy on parcel one, said satisfaction being part of the consideration. According to Zimmerman, Vinylgrain failed to satisfy the Blanche Leroy mortgage, however, *1354 and a suit was brought to foreclose on that mortgage. After the Leroy foreclosure action, Zimmerman ceased making payments to Vinylgrain on the second mortgage. Zimmerman asserts he believed that the foreclosure of the Blanche Leroy mortgage nullified the second, and forgot that the second mortgage included property not affected by the first. Zimmerman's home in Gainesville, along with his copies of documents pertinent to this action, were destroyed by fire.
Vinylgrain brought the action below to foreclose on its mortgage in March 1984. The summons and complaint were directed to Zimmerman's Gainesville home, but served on him at his new residence in Alachua by a deputy who knew of the fire and Zimmerman's relocation. Thereafter, however, all pleadings and notices were mailed to the Gainesville address, all of which Zimmerman claims he never received. Allegedly operating under the same mistaken belief that the Leroy foreclosure nullified the Vinylgrain mortgage, as well as the confusion and disturbance caused by the fire, Zimmerman failed to answer the complaint.
In April 1984, Vinylgrain moved for summary final judgment stating in its affidavit of indebtedness that the principal amount due was $18,750 with interest. Summary judgment of foreclosure on parcel number two was entered on June 1, 1984, with copies of the motion and judgment being mailed to Zimmerman's Gainesville address. Zimmerman maintains he did not learn of the pending sale until mid-June when it was discovered during a prospective buyer's title search. Appellant's motion to set aside default and judgment was filed on July 3, 1984, along with an answer, affirmative defenses, set-off and counterclaim. The motion was denied on July 18, 1984, and parcel number two was offered at public sale and purchased by Vinylgrain on July 13, 1984.
Appellant contends that Vinylgrain's affidavit, stating the principal amount due on the second mortgage to be $18,750, constituted a misrepresentation of the amount of damages. He asserts that the trial court erred in denying the motion to set aside based on misrepresentation by an adverse party. We agree.
The Florida Supreme Court has established a policy of providing relief from defaults and allowing trials on the merits. If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing the trial upon the merits. Northshore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962). Although an abuse of discretion is necessary in order to reverse a trial court's ruling on a motion to vacate default, appellate courts need not find as great a showing of abuse to reverse a trial court's denial of a motion to vacate default as they do to reverse a grant of such a motion. Garcia Insurance Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977). The Diaz court noted that "appellate courts ... have not hesitated to reverse lower courts for failure to vacate defaults where excusable neglect and due diligence are demonstrated." 351 So.2d at 1138. In addition to a demonstration of excusable neglect, many courts have indicated the necessity of a meritorious defense in order to vacate a default. Barber, supra; Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So. 2d 539 (Fla. 1st DCA 1977); Chase Federal Savings and Loan Association v. Sober, 455 So. 2d 1161 (Fla. 3d DCA 1984).
Appellant has acted with due diligence seeking vacation of his default and his response to plaintiff's complaint indicates a meritorious defense.
Appellant alleges that Vinylgrain committed fraud or misrepresentation by failing to fully and correctly depict to the court the agreement represented by the note (including the fact that $8,000 of the principal was to have been applied to satisfy the first mortgage) and its failure to satisfy the first mortgage. Therefore, the appellant contends he should be entitled to relief under Florida Rules of Civil Procedure 1.540(b). Rule 1.540(b) states:
On motion and upon such terms as are just, the court may relieve a party ... *1355 from a final judgment, decree, order or proceeding for the following reasons:
... .
(3) fraud ... misrepresentation or other misconduct of an adverse party... .
Such misrepresentation, as to the amount of damages, as alleged, has been held to constitute grounds for relief under Fla.R. Civ.P. 1.540(b). Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981); Kimbrough v. McCranie, 325 So. 2d 70 (Fla. 1st DCA 1976). We therefore find that the lower court erred in denying defendant's motion to set aside default and judgment based on misrepresentation.
The alleged misrepresentation by Vinylgrain as to the amount due on the subject mortgage, and the alleged failure of Vinylgrain to apply the $8,000 to Zimmerman's mortgage to Leroy, coupled with Zimmerman's belief that the foreclosure of Zimmerman's earlier mortgage nullified the subject mortgage, warrant a full adversary hearing on the merits.
Accordingly, we reverse the trial court's order and we set aside the default, summary judgment of foreclosure, clerk's sale and certificate of title. The cause is remanded with appellant Zimmerman given authority to file his answer, affirmative defenses, set-off and counterclaim, and for further proceedings.
REVERSED and REMANDED.
MILLS and WENTWORTH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626432/ | 464 So. 2d 1228 (1985)
FOOD FAIR, INC., d/b/a Pantry Pride Stores, Appellant,
v.
Augusta GOLD; Industrial Fire and Casualty Insurance Company and Justine Weiner, Appellees.
Nos. 83-1670, 83-2277.
District Court of Appeal of Florida, Third District.
January 29, 1985.
Rehearing Denied March 27, 1985.
Ponzoli & Wassenberg and Steven R. Berger, Miami, for appellant.
Rentz & Rust, Miami, Daniels & Hicks and Patrice A. Talisman, Goodhart & Rosner, Jeanne Heyward, Miami, for appellees.
Before BARKDULL, HUBBART and JORGENSON, JJ.
BARKDULL, Judge.
This is an appeal from a final judgment entered in a personal injury action brought as a result of an injury sustained in the parking lot provided for patrons of the appellant.
Augusta Gold went to the Pantry Pride Store in Surfside, Florida. While she was shopping, a Mr. Hirshon pulled into the store parking lot and stopped his car waiting *1229 for someone to vacate a parking space so he could park his car. A Mrs. Weiner was leaving the store. She pulled her car up behind Mr. Hirshon but hesitated passing him on the left because of limited space. When Mr. Hirshon failed to move his car, after being requested to do so, an argument ensued between Mrs. Weiner (who had left her vehicle) and Mr. Hirshon. Mrs. Weiner had returned to her car when a Mr. Morris pulled up behind her and blew his horn. At this point, Mrs. Weiner started to pass Hirshon's vehicle on the left. She struck a parked car, her vehicle became airborne and struck Mrs. Gold, who by that time was loading groceries into her trunk, severely injuring her.[1] As a result, Mrs. Gold and her husband sued Food Fair, Inc., Mrs. Weiner, Mr. Hirshon and Mr. Morris. The allegation against Food Fair, Inc. was negligent design of the parking lot[2] and negligent failure of the store manager to intervene when he was aware of the altercation outside his store.[3] The cause proceeded to jury trial.
Food Fair's motions for directed verdict made at the conclusion of the plaintiff's case and at the conclusion of all the evidence were denied and the cause was sent to the jury. While the jury was deliberating, Mr. and Mrs. Gold settled their claim against Mrs. Weiner and her insurer. The jury returned its verdict in favor of the Golds. This appeal ensued.
The appellant has preserved several points for review, only one of which we find necessary to consider in reversing the final judgment; that is the failure to grant a directed verdict for Pantry Pride.
In Foley v. Hialeah Race Course, Inc., 53 So. 2d 771 (Fla. 1951) the Supreme Court reviewed a judgment of dismissal holding that a complaint failed to state a cause of action. The complaint alleged that the defendant maintained a parking lot for its patrons; that the defendant "carelessly and negligently supervised, maintained and controlled the said ... parking area, in that there were an insufficient number of traffic attendants"; that the attendants were improperly stationed and were not performing their duties; and that there were "insufficient traffic warning devices and controls." As a direct result of the foregoing alleged negligent acts and omissions, the plaintiff claimed that he was in an automobile accident with another individual. The Supreme Court in disposing of the issue said:
"The judgment is correct. There is nothing inherently dangerous about a parking lot. No factual allegation is made to indicate a breach of duty which proximately contributed to plaintiff's injury. The allegations are too vague and general to state a cause of action. The proximate cause of plaintiff's injury was by no act of defendant. See, Rosen v. City of Miami, 141 Fla. 664, 193 So. 749; Williams v. Atlantic Coastline R. Co., 56 Fla. 735, 48 So. 209, 24 L.R.A., N.S. 134."
53 So.2d at 771.
Schatz v. 7-Eleven, Inc., 128 So. 2d 901 (Fla. 1st DCA 1961) was an appeal from a summary final judgment in favor of a defendant which owned a food store and adjacent parking area. The plaintiff was a *1230 business invitee shopping at the store. Customers were invited to drive in and park motor vehicles in the parking area in front of the store building. A sidewalk and curb separated the front of the building from the parking area. An individual operating an automobile drove into a parking stall directly in front of the store. When she later attempted to leave the parking stall, she negligently put her car in forward gear, jumped the curb and sidewalk, and struck the plaintiff, pinning her against a fixture and inflicting severe injuries upon her. The plaintiff claimed that the defendant store owner was negligent in failing to protect business invitees by properly regulating the parking in its lot or in failing to provide adequate curbs, barriers or walls at the front of the building. The plaintiff alleged that the defendant breached a duty to maintain its premises in a reasonably safe condition.
The First District Court of Appeal affirmed the summary judgment. The court recognized that the storeowner owed a duty to exercise ordinary care to maintain its premises in a reasonably safe condition. The court held, however, that the storeowner "did not owe plaintiff a duty as insurer of her safety while on the premises in question, but is charged with the duty of guarding against subjecting plaintiff to dangers of which defendant is cognizant or might reasonably foresee." 128 So.2d at 903. The court also said that negligence is not actionable without proof of reasonably foreseeable consequences. For consequences to be reasonably foreseeable, the court held that they "must be such that a person by prudent human foresight can anticipate what will likely result from the act, because it happened so frequently from the commission of such an act, that in the field of human experience it may be expected to happen again." Id.
The court rejected the notion that a storeowner could be liable for the manner in which it allowed parking in its parking lot. The court stated "the obvious fact" that some drivers lose control over their vehicles and cause damage or injury to others. 128 So.2d at 904. The court held that:
"In a sense all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary and normal course of events. Why they happen, the consequences resulting therefrom are matters of chance and speculation. If, as a matter of law such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Such occurrences fall within the category of the unusual or extraordinary, and are, therefore, unforeseeable in contemplation of the law."
Id.
See Jones v. Dowdy, 443 So. 2d 467 (Fla. 2nd DCA 1984); Stratioti v. Bick, 704 F.2d 1052 (8th Cir.1983); Mack v. McGrath, 150 N.W.2d 681 (Minn. 1967); Watkins v. Davis, 308 S.W.2d 906 (Tex.Civ.App. 1957).
The concepts of proximate causation and foreseeability have been applied in many cases in this state. In Wometco Theatres Corp. v. Rath, 123 So. 2d 472 (Fla. 3d DCA 1960) this court reversed a judgment on jury verdict in favor of a patron who had been injured while in a movie theatre owned by the defendant. In that case, an usher suspected that a patron was a child molester. He relayed that suspicion to the manager of the theatre. The manager observed the patron whose actions, in fact, appeared to confirm the usher's suspicions. At that point, the manager asked the patron to step into the lobby to answer some questions. The patron lunged forward, the manager grabbed him by the arm and a struggle ensued. After the patron was subdued and was being accompanied up the aisle to the lobby, he suddenly broke away, brushing past the plaintiff and knocking her against a seat and onto the floor, causing injuries. In reversing the judgment in favor of the plaintiff, this court held that it could not reasonably be anticipated that the suspected child molester would react in *1231 the manner described and thereby injure the plaintiff. Pantry Pride herein had no reason to anticipate Mrs. Weiner's highly unusual behavior.
In Heps v. Burdine's, Inc., 69 So. 2d 340 (Fla. 1954) a customer sustained injuries when another customer riding on an escalator pushed a baby stroller against her, causing her to fall. The plaintiff alleged that the escalator was not constructed to accommodate baby strollers and that the store negligently violated its duty to the injured patron by allowing other patrons to place strollers on escalators. A motion to dismiss was granted with prejudice and the Supreme Court affirmed. In so doing, the Supreme Court specifically held that the store was not negligent in failing to keep attendants by the escalator or in not posting signs forbidding such an alleged dangerous use. The allegations of that complaint regarding crowded conditions, unruly customers, failure to post warning signs and failure to provide attendants are similar to the theory of Mrs. Gold's case against Pantry Pride. The Supreme Court's decision contains the following language.
"For every wrong there is a remedy, is one of the first principles of Hornbook law that confronts the law student, but with it is the equally important principle that the remedy be sought against the negligent party. It may be that the person who stepped on the escalator with the stroller manipulated it negligently, but that question is not before us. The allegations of negligence go to the lack of attendants to restrict those using the elevator and to guard their conduct while being conveyed on it. We are not convinced that under the circumstances a case was made against defendant as to either charge."
69 So.2d at 341.
There was a "wrong" and a "negligent party" who caused injuries. That negligent party was not Pantry Pride. The Supreme Court further stated:
"[W]e have not reached the point that we impose a penalty on one in business for delicts, delicts resulting from the crude manners, rude conduct, and total disregard of the feelings of others exhibited by customers in his place of business. Courtesy and good manners are not yet ritualistic even if a more sensitive response to them would improve our cultural pattern. The mere fact that one is injured in a public place is not enough to fix responsibility for a cause of action."
69 So.2d at 342.
Therefore for the reasons stated above, the final judgment under review is reversed with directions to the trial court to enter a judgment in favor of Food Fair, Inc., d/b/a Pantry Pride Stores, defendant therein.[4]
Reversed and remanded with directions.
NOTES
[1] Gunning her car engine she accelerated rapidly. Upon impact, Mrs. Weiner continued the rapid acceleration of her vehicle, literally driving up and over the rear end of the parked vehicle, causing her vehicle to become airborne and land on the trunk area of the Gold vehicle.
[2] As to the alleged design deficiencies, the evidence was that the parking lot, at the time it was built, met the code of the municipality.
[3] The store manager, along with other employees, was in and about the area, cleaning it up in anticipation of a delivery. He was in and out of the store during the material times and was otherwise occupied with his duties. As soon as he heard yelling and horns honking, he turned and walked towards the situation to see if he could cool things down. As he started to walk in the direction of the vehicles, the accident took place. Even if there was a duty to attempt to prevent the altercation (which we do not find) the altercation had terminated. Mrs. Weiner had returned to her car and the store manager could not have foreseen that she would attempt to pass Mr. Hirshon's vehicle, when she knew she could not at such a high rate of speed.
[4] In view of this holding on the motion for directed verdict, the other points urged for reversal are moot. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3045678/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3304
___________
James Christopher VanDolah, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Linda Sanders, Warden, *
FCI-Forrest City, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: December 11, 2008
Filed: December 16, 2008
___________
Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Federal prisoner James VanDolah appeals the district court’s1 order dismissing
his 28 U.S.C. § 2241 petition. Following de novo review, see Hill v. Morrison, 349
F.3d 1089, 1091 (8th Cir. 2003), we conclude that the district court’s decision was
proper, and we decline to consider VanDolah’s newly raised constitutional claims, see
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Beth Deere, United States Magistrate Judge for the Eastern District of
Arkansas.
Int’l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 380 F.3d 1084,
1096 (8th Cir. 2004). Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1626312/ | 25 So. 3d 69 (2009)
Ann R. EPPINGER, Appellant,
v.
Douglas J. SEALY and Prager, Sealy & Co. LLC, Appellees.
No. 5D08-4286.
District Court of Appeal of Florida, Fifth District.
December 18, 2009.
T. Todd Pittenger and Kristopher Kest, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant.
No Appearance for Appellee, Douglas J. Sealy.
Carlos J. Burruezo and Juan C. Lopez-Campillo, and Ashley L. Gay, of Littler Mendelson, P.C., Orlando, Julissa Rodriguez and Kerri L. McNulty, of Greenberg & Traurig, P.A., Miami, and I. William Spivey, II, of Greenberg Traurig, P.A., Orlando, for Appellee, Prager, Sealy & Co. LLC.
GRIFFIN, J.
Ann R. Eppinger ["Eppinger"] appeals the trial court's non-final order granting *70 Prager, Sealy & Co. LLC's ["Prager Sealy"] motion to compel arbitration. Eppinger argues that the trial court erred by granting Prager Sealy's motion to compel arbitration. We agree that the allegations in her complaint do not raise an arbitrable issue and reverse.
Eppinger and Douglas J. Sealy ["Sealy"] joined Prager Sealy's predecessor in 1991, opening the company's Orlando office and serving as managing directors. In 1993, Eppinger and Sealy married each other. Both continued their work at the company, but Eppinger decreased her workload and responsibilities with the birth of each of their two children. Eppinger's, and Sealy's marriage ended in 2006 with a mediated settlement agreement ["MSA"] being incorporated into the final judgment of dissolution. Included in the MSA was a provision that Eppinger would remain an employee of Prager Sealy for a specified term. Eppinger was later terminated from Prager Sealy after Prager Sealy unsuccessfully attempted to have Eppinger enter into a Separation Agreement and General Release.
In June of 2008, Eppinger filed a five-count complaint against Sealy and Prager Sealy to enforce Sealy's and Prager Sealy's obligations under the MSA. Eppinger alleged that Sealy and Prager Sealy were obligated to pay her sums as provided for under paragraph 7 of the MSA:
7. Employment by Prager, Sealy and Company:
Ms. Eppinger shall continue as an employee with Prager, Sealy & Company, LLC for a five year period commencing with the execution of this agreement, with a salary of $120,000.00 per year, payable monthly. Ms. Eppinger shall continue to be the lead banker for Villages of Lake-Sumter, Inc., or its successors and will receive 70% of all gross revenues generated from any such bond issues, payable at the same time as other bonuses are paid by the Company. Mr. Sealy guarantees that Ms. Eppinger will be paid a bonus of at least $650,000 annually regardless of whether Villages produces revenues or not. The above payments are to be made by February 15th of the succeeding year for the prior year, subject to regulatory requirements and February 15th of each year thereafter. This guarantee shall be null and void if Ms. Eppinger remarries within the five year period, but all other provisions shall remain in effect. Ms. Eppinger shall also enjoy health insurance benefits as provided to employees as well as participate in all other similar benefits available through Prager, Sealy & Company, LLC, with its employees.
Eppinger alleged that, even though Sealy and Prager Sealy operated under the MSA for more than one year, they failed to fully perform. Sealy told her that neither he nor Prager Sealy was required to pay her the "salary" and "bonuses" called for under the MSA because he was not, at the time he executed the MSA, authorized to bind Prager Sealy and Prager Sealy never did accept its obligations under the MSA.
Sealy answered Eppinger's complaint and asserted affirmative defenses and counterclaims. Prager Sealy filed a motion to dismiss, to compel arbitration and to stay discovery. In its motion, Prager Sealy alleged that Eppinger executed a Form U-4 "[a]t the start of her employment in 1991, . . . which requires her to arbitrate any dispute, claim or controversy that might arise" and that she subsequently executed a Predispute Arbitration Clause, which related to the Form U-4, in both 2003 and 2006.
The Form U-4 attached to the motion is entitled "UNIFORM APPLICATION FOR SECURITIES INDUSTRY REGISTRATION *71 OR TRANSFER" and contains the following arbitration clause: "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organization indicated in Item 10 as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgement [sic] in any court of competent jurisdiction." Eppinger's signature appears on the form.
The Predispute Arbitration Clause provides:
In accordance with the NASD Conduct Rules, the following disclosure is being provided to you in connection with your Form U-4 application or Form U-4 amendment(s):
The Form U-4 contains a predispute arbitration clause. It is in item 5 on page 4 of the Form U-4. You should read that clause now. Before signing the Form U-4, you should understand the following:
(1.) You are agreeing to arbitrate any dispute, claim or controversy that may arise between you and your firm or a customer, or any other person, that is required to be arbitrated under the rules of the self-regulatory organizations with which you are registering. This means that you are giving up the right to sue a member, customer, or another associated person in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed.
(2.) A claim alleging employment discrimination, including a sexual harassment claim, in violation of a statute is not required to be arbitrated under NASD rules. Such a claim may be arbitrated at the NASD only if the parties have agreed to arbitrate it, either before or after the dispute arose. The rules of other arbitration forums may be different
. . . .
Sealy responded to Prager Sealy's motion, asserting:
5. In sum, [Prager Sealy's] Motion to Compel Arbitration is limited, by its own terms, to arbitration of claims between [Prager Sealy] and Eppinger; [Prager Sealy] has not cited or invoked an agreement to compel Sealy to arbitrate the claims Eppinger has asserted against [Prager Sealy]; and Eppinger and Sealy have committed their separable claims against one another to the jurisdiction of this Court. Accordingly, Sealy submits that [Prager Sealy's] Motion to Compel Arbitration should be Granted, insofar as it is limited to compelling arbitration of claims Eppinger has asserted against [Prager Sealy].
Eppinger filed a memorandum in opposition to Prager Sealy's motion. She attached a BrokerCheck Report to her memorandum showing that Eppinger held FINRA[1] registration with Prager Sealy from May of 1993 through March of 2008. The trial court conducted a hearing and entered an order granting Prager Sealy's motion to dismiss and compel arbitration, and to stay discovery.
Eppinger's central argument on appeal is that her claims and the facts on which they are based as alleged in her complaint do not give rise to an arbitrable issue and *72 that the trial court erred in granting Prager Sealy's motion to compel arbitration. Prager Sealy counters that, although Eppinger relies upon the terms of the MSA in bringing her claims, her claims are "grounded on her employment relationship with the company." Prager Sealy contends that, under the rules of arbitration applicable to FINRA, arbitration was required because the dispute arose out of her employment or termination of employment. Therefore, the question becomes whether the rules of arbitration applicable to FINRA require arbitration of the instant dispute.
At the time the instant dispute arose, the NASD Code of Arbitration Procedure for Industry Disputes ["NASD Arbitration Code"] constituted the rules of arbitration applicable to FINRA.[2] Section 13200 of the NASD Arbitration Code provides in pertinent part:
Required Arbitration
(a) Generally
Except as otherwise provided in the Code, a dispute must be arbitrated under the Code if the dispute arises out of the business activities of a member or an associated person and is between or among:
Members;
Members and Associated Persons; or
Associated Persons.[3]
Based upon the language of section 13200(a), the dispute between Eppinger and Prager Sealy must be arbitrated if it arose out of the "business activities" of either Eppinger or Prager Sealy. Relying upon Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla.1999), Eppinger contends that the dispute did not arise out of her or Prager Sealy's "business activities" because the allegations in her complaint do not suggest a nexus between the dispute and the agreement containing the arbitration clause, namely the Form U-4.
In Seifert, the Florida Supreme Court addressed "whether the terms of an arbitration provision in a contract for the sale and purchase of a house require[d] [a] wrongful death action to be arbitrated." Id. at 635. The arbitration provision required arbitration of "[a]ny controversy or claim arising under or related to" the purchase and sale agreement. Id. The Florida Supreme Court analyzed "the governing principles surrounding the determination of whether a particular claim is subject to arbitration" and concluded: "As the prevailing case law illustrates, even in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause." Id. at 638.
While there does not appear to be Florida case law directly on point, a recent California case supports application of the "nexus" requirement in this context. In Valentine Capital Asset Mgmt., Inc. v. Agahi, 174 Cal. App. 4th 606, 94 Cal. Rptr. 3d 526, 534 (2009), a California appellate court addressed the scope of "business activities" that are subject to arbitration under FINRA Rule 13200,[4] stating:
*73 Since there must be some limit to the scope of "business activities" subject to mandatory arbitration under FINRA, we must next find an appropriate means of defining the limitation. We need look no further than the words of Rule 13200 itself. The mandate to arbitrate disputes arising out of "business activities of . . . an associated person," reasonably read, must require arbitration of disputes only if they arise out of the business activities of an individual as an associated person of a FINRA member. With this interpretation, FINRA and the registered representatives under its jurisdiction are assured that arbitration will pertain to matters with some nexus to the activity actually regulated by FINRA. This is nothing more than the common sense meaning of the plain language contained in Rule 13200, and any other interpretation would wrongly strip individuals of their civil jury trial rights concerning subject matter in which FINRA maintains no regulatory interest.
Id. (emphasis in original). As Valentine suggests, a dispute arises out of "business activities" if there exists a nexus between the dispute and an activity regulated by FINRA. The allegations of Eppinger's complaint concern whether Prager Sealy is obligated under the MSA to pay certain sums to Eppinger as a result of the dissolution of her marriage to Sealy. The dispute arises out of the agreement that obligated Prager Sealy to employ Eppinger; it does not arise out of the employment itself. The dispute does not involve activities on the part of either Eppinger or Prager Sealy that are regulated by FINRA. Therefore, there does not exist a nexus between the dispute and the "business activities" of Eppinger or Prager Sealy.
Prager Sealy asserts that section 13200(a) of the NASD Arbitration Code covers employment and employment termination claims. In support of its assertion, Prager Sealy cites a footnoted comment made by the SEC in relation to the consolidation of the regulatory functions of NASD and NYSE Regulation.[5] The SEC's comment provides in pertinent part:
[NYSE] Rule 347(a) provides that a controversy between a registered representative and a member organization "arising out of the employment or termination of employment of such registered representative" shall be arbitrated at the request of any party. These employment claims will continue to be covered by NASD DR Rule 13200(a), which requires the arbitration of disputes arising out of the "business activities" of a member or an associated person and is between or among members, members and associated persons, or associated persons. Accordingly, [NYSE] Rule 600 will be amended to provide that [NYSE] Rule 347 will apply only to claims filed before the Effective Date.[6]
Prager Sealy also relies on In re NEXT Financial Group, Inc., 271 S.W.3d 263, 268 (Tex.2008), for the proposition that section 13200(a) covers employment and termination of employment claims for NASD members. In NEXT, the Texas Supreme Court found that a securities broker's wrongful discharge claim was required to be arbitrated under the NASD Arbitration Code because, "although [the *74 securities broker's] retaliatory discharge claim [was] premised on NEXT's allegedly illegal activities, the alleged conduct involve[d] `significant aspects' of NEXT's legitimate business activities, bringing the dispute within the scope of the NASD arbitration clause." Id. at 269. The wrongful discharge claim was predicated upon NEXT having allegedly "fired [the securities broker] for refusing to conceal a trader's fraudulent `churning' transactions." Id. at 265.
Although NEXT may be some authority in support of Prager Sealy's position, it does not take them far. The Texas Supreme Court's decision in NEXT was based upon its finding that NEXT's "alleged conduct involve[d] `significant aspects' of NEXT's legitimate business activities, bringing the dispute within the scope of the NASD arbitration clause." Id. at 269. This comes very close to "nexus." In NEXT, the alleged discharge for a failure to conceal fraudulent churning related to NEXT's regulated business activities in the securities industry. In this case, the failure to pay Eppinger certain sums under the MSA has no connection to Prager Sealy's regulated business activities.
In Singer v. Gaines, 896 So. 2d 851, 854-55 (Fla. 3d DCA 2005), the Third District Court of Appeal addressed whether a claim for fraudulent inducement presented an arbitrable issue under a prior version of the NASD Arbitration Code that explicitly provided for arbitration of claims arising out of employment or termination of employment. The appellant argued that his claim for fraudulent inducement was based on false representations made by the appellees prior to his entry into the employment contract and that, as such, it fell outside the scope of the arbitration provision. Id. at 854. The Third District Court of Appeal said:
Rule 10201(a) requires that claims "arising out of the employment or termination of employment of such associated person(s)" be submitted to arbitration. This requirement does not mean that the controversy must arise from an employment contract; it simply requires that the controversy arise from employment or termination of employment. Bielfeldt v. Nims, 805 N.E.2d 415, 420 (Ind.Ct.App.2004). In determining whether a controversy arises out of employment or termination, "`the proper question is whether resolution of the claim depends upon evaluation of a party's performance either as a broker or as an employer of brokers during the time of the contractual relationship.'" Northwestern Mut. Life Ins. Co. v. Stinnett, 698 N.E.2d 339, 342 (Ind.Ct.App. 1998) (quoting Zandford v. Prudential-Bache Secs., Inc., 112 F.3d 723, 729 (4th Cir.1997)).
Id.
Here, resolution of Eppinger's claims does not appear to involve evaluation of either Prager Sealy's performance as an employer of brokers or Eppinger's performance as a broker-employee. To the contrary, Prager Sealy contends it has no contractual relationship giving rise to a duty to employ Eppinger. This is not a Form U-4 arbitrable issue.
REVERSED and REMANDED.
PALMER and JACOBUS, JJ., concur.
NOTES
[1] In July of 2007, NASD's name was changed to FINRA "in connection with the consolidation of the member firm regulatory functions of NASD and NYSE Regulation." Order Granting Accelerated Approval of Proposed Rule Change and Amendment No. 1 Thereto Relating to Proposed Amendments to Rule 600, 72 Fed. Reg. 45077-02 n. 7 (Aug. 10, 2007).
[2] See FINRA, Industry Professionals, Regulation, Notices, 2008, Information Notice-December 8, 2008, Continuing Application of NASD Rules and Incorporated NYSE Rules, http://www.finra.org/Industry/Regulation/Notices/2008/P117507.
[3] NASD Code of Arbitration Procedure for Industry Disputes § 13200(a) (effective Apr. 16, 2007), available at http://finra.complinet.com/en/display/display main.html?rbid=2403&elementid=8043.
[4] The language of FINRA section 13200(a) mirrors the language of NASD section 13200(a).
[5] Order Granting Accelerated Approval of Proposed Rule Change and Amendment No. 1 Thereto Relating to Proposed Amendments to Rule 600, 72 Fed. Reg. 45077-02 n. 11 (Aug. 10, 2007).
[6] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626118/ | 345 S.W.2d 532 (1961)
George L. PATE, Appellant,
v.
STATE of Texas, Appellee.
No. 32883.
Court of Criminal Appeals of Texas.
February 8, 1961.
Rehearing Denied March 29, 1961.
*533 No attorney for appellant of record on appeal.
C. C. Devine, Houston, for appellant on rehearing.
Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Judge.
The offense is rape; the punishment, 60 years.
Prosecutrix testified that, while she and a younger woman companion were driving down a highway in Angelina County at night, appellant forced their Volkswagen off the highway. She stated that appellant demanded their money and searched their purses but found none, after which he locked their car, threw the keys into a ravine, and forced the two women to get into his car. She said that after driving some distance he said, "One of you get out," and prosecutrix told the younger woman to get out, which she did; that appellant then drove off again and stopped on a side road; that, despite her remonstrances that she was undergoing her menstrual period, he forced her to remove her clothes and throw away her Tampax or sanitary napkin, and had intercourse with her.
Prosecutrix testified that appellant several times threatened to kill her; that he had his hand in his left-hand pocket and told her to do as he said and she wouldn't be hurt; that she was in fear of death or serious bodily injury if she did not do what he said, and that during the intercourse there was "something sharp pointed in my ribs on the right side." She testified that after she put on her clothes appellant told her to get out of the car, threatened to kill her if she told the police he had raped her, and drove away.
It was shown by the testimony of the officers that the younger woman was picked up by a passing motorist and gave the alarm; that prosecutrix was found walking toward the highway, and that she pointed out to them the scene of the assault, where they found the Tampax.
The doctor who examined prosecutrix at the hospital testified that he found male sperm in her vagina, verified the fact that she was in her menstrual period, and stated that prosecutrix "was obviously distraught with fear, and I had to give her an injection of a sedative prior to performing a pelvic examination."
Prosecutrix's companion corroborated her testimony relating to what occurred up to the time that she was permitted to get out of appellant's car.
Appellant was arrested in Houston some three weeks later.
Appellant's confession was introduced in evidence in which he admitted that he forced a car in which the two women were riding off the highway; that he demanded their money, looked through their purses but found none; that he made the girls get in his car, locked their car and threw away the key, drove a short way and turned off of the highway; that he told one of the girls to get out, drove with the other back to the highway, turned off on a dirt road and stopped after going about a mile. The confession continues as follows:
"I finally told her to take her clothes off. She argued with me for a while and she seemed to be scared. I got in the back seat with her and made her take all her clothes off. She took them off and told me that she was sick. I didn't understand what she meant. I thought she was just saying that to keep me from raping her. She begged me not to rape her but I went ahead and got on top of her and had intercourse *534 with her. * * * At no time did this girl give me her consent to have intercourse with her. I knew that I had committed the offense of rape. My original intentions were to stop the women and rob them. * * *"
Appellant did not testify or offer any evidence in his own behalf.
We find the evidence sufficient to support the conviction.
There are no formal bills of exception in the record, and we find no reversible error reflected by the informal bills indexed in the statement of facts. No brief has been filed.
Finding no reversible error, the judgment of the trial court is affirmed.
On Appellant's Motion for Rehearing
DICE, Commissioner.
Since the delivery of our opinion affirming the judgment of conviction, a brief has been filed in behalf of the appellant.
In his brief appellant urges three claimed errors as grounds for reversal of the conviction.
It is first contended that the court erred in refusing to grant a mistrial when, during the course of the trial, a member of the jury became ill, which required the treatment of a doctor. While the record shows that during the trial the Juror Smith did become ill and the jury was retired to the jury room where he was treated by a doctor, there is no evidence that the juror's illness was such as to prevent him from continuing to serve as a juror in the case.
It is further contended that the doctor's treatment of the juror and his presence in the jury room constituted reversible error because it was in violation of Art. 671, Vernon's Annotated Criminal Code of Procedure, which provides: "No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, * * *."
In his motion for new trial appellant did not urge as a ground therefor the doctor's presence in the jury room, and such question is not presented for review. Harvey v. State, 150 Tex. Crim. 332, 201 S.W.2d 42.
Furthermore, appellant's motion for new trial was not verified by himself or his attorney and is insufficient to present for review the claimed error. Carruthers v. State, 143 Tex. Crim. 45, 156 S.W.2d 988; Pierce v. State, 160 Tex. Crim. 646, 274 S.W.2d 408.
Appellant insists that his written confession introduced in evidence by the state was insufficient because it was not dated, did not contain the proper statutory warning, and was not made to Sheriff Leon Jones, the person to whom the confession states it was made.
We find no merit in such contention. The fact that the confession was not dated did not vitiate it and render it inadmissible in evidence. Leal v. State, 106 Tex. Crim. 68, 291 S.W. 226. The warning contained in the confession is in substantial compliance with the statutory warning prescribed in Art. 727, V.A.C.C.P. While the evidence shows that Ranger Ed Gooding typed the written statement made by appellant, the record clearly shows that the confession was made to Sheriff Leon Jones, the person to whom the confession recites it was made.
Appellant's remaining contention is that the court erred in refusing to permit him to perfect a bill of exception in the absence of the jury. Reliance is upon that portion of Art. 759a, Sec. 2(a), V.A.C.C.P., which provides:
"Where the defendant offers testimony which is rejected by the court, the judge, if requested by defense counsel, shall immediately retire the jury and hear such testimony to allow defendant to perfect his Bill of Exception."
While the record shows that the court did, upon overruling appellant's motion *535 for mistrial because of illness of the juror, refuse appellant's request to then call Sheriff Jones as a witness to perfect his bill of exception in the absence of the jury, the record further shows that at such time the court advised appellant's counsel that he would be allowed to perfect the bill at the first recess or at some other time during the trial. There is no showing in the record that appellant at any time thereafter called Sheriff Jones for the purpose of perfecting his bill of exception in the absence of the jury. Having been offered such opportunity, the court's refusal to hear the testimony at the time it was offered does not present reversible error. Weeks v. State, 161 Tex. Crim. 202, 275 S.W.2d 684; Davidson v. State, 162 Tex. Crim. 640, 288 S.W.2d 93.
The motion for rehearing is overruled.
Opinion approved by the Court.
WOODLEY, P. J., absent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626150/ | 169 N.W.2d 850 (1969)
Herman BAUER, Appellant,
v.
STERN FINANCE COMPANY, Ben Stern, Don W. Sweeten and Arthur Camenzind, Appellees.
No. 53280.
Supreme Court of Iowa.
July 24, 1969.
*851 James Furey and Leighton A. Wederath, Carroll, for appellant.
Joseph Z. Marks, Des Moines, for appellees.
LeGRAND, Justice.
This controversy involves relatively simple facts which have been unnecessarily complicated by a prolix record including 210 pages of pleadings, motions and rulings. Much of this could have been omitted.
The principal dispute concerns the interpretation and effect of summary judgment rule 237, Rules of Civil Procedure, which was extensively amended effective July 1, 1967.
The plaintiff appeals from a summary judgment entered against him by the trial court dismissing his petition on two grounds: First, that plaintiff has refused to furnish important information to defendant either by deposition or at the hearing on summary judgment because such information would tend to incriminate him; and second, that there was no genuine issue as to any material fact and that defendant was entitled to a summary judgment as a matter of law. We discuss these grounds together.
Prior to the 1967 amendment to rule 237, summary judgment relief was available only to a plaintiff. International Milling Co. v. Gisch, 256 Iowa 949, 955, 129 N.W.2d 646, 649. The amendment makes it applicable to plaintiff and defendant alike.
The background of this litigation is a bitter one. By a series of transactions extending from 1962 to 1964, plaintiff purchased 96 head of cattle, all of which he financed through defendant Stern Finance Company. On or about February 9, 1966, Don W. Sweeten, one on Stern's employees, visited plaintiff's farm to make a routine check of his employer's security. He was able to locate only 34 cows on plaintiff's farm. He immediately sought the plaintiff out at his place of employment, made inquiry about the missing security, and, with plaintiff, returned to the farm for further investigation. Six more animals were then located, making a total of 40, and leaving 56 still unaccounted for. *852 Plaintiff refused to divulge any information concerning them. Sweeten claims he thereupon told plaintiff Stern Finance Company would be obliged to declare the entire amount of the loan due, as it was entitled to do under the terms of the various security instruments.
Arrangements were made for one Arthur Camenzind, a cattle broker from Nebraska, to purchase plaintiff's livestock. He visited the farm, at which time Sweeten was present during part of the negotiations. Together the three worked out a deal by which Camenzind purchased the 40 cows for $5150.00. He gave a check for this amount to plaintiff, who endorsed it and delivered it to Sweeten to be applied on plaintiff's indebtedness with Stern. Prior to the consummation of this transaction Sweeten had assured plaintiff Stern would claim no deficiency of him, although the amount of the check did not cover the entire debt.
Whether the cattle were sold to Camenzind by plaintiff or were first repossessed by defendant Stern Finance Company and then sold to Camenzind is one of the areas of disagreement between the parties.
In any event shortly after Camenzind purchased the cattle, plaintiff brought action against Stern Finance Company and Ben Stern individually in seven counts. Upon motion, five of these were dismissed by order of court.
Of the remaining two counts one asserted a right of recovery because the defendants "wrongfully, illegally, and tortiously took possession of said cattle from plaintiff." The other claimed damages for wrongful sale and disposition of the animals after the alleged seizure and for improper application of the proceeds from their sale.
Defendants Stern Finance Company and Ben Stern took plaintiff's deposition, during which plaintiff on approximately 20 occasions refused to answer questions on the ground he would thereby tend to incriminate himself. These questions dealt principally with the location of the 56 missing cattle and how they had been disposed of by plaintiff. On the same ground plaintiff refused to produce certain books and records requested during the course of his deposition.
I. This exercise by plaintiff of his privilege against self-incrimination is the principal issue involved. The Sterns filed a motion for summary judgment on both counts of plaintiff's petition. The motion alleged that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the attached affidavit and exhibit, show that there is no genuine issue for trial and that the defendant is entitled to judgment as a matter of law." In support thereof the Sterns set out substantially the facts above related.
Attached to the motion was the affidavit of one Lorna Billyard, assistant secretary of defendant corporation, verifying much of the factual matter stated in the motion. Subsequently the affidavit of Don W. Sweeten was filed, further substantiating the recitations of the motion for summary judgment and setting out in detail the manner in which the shortage of security was discovered, the action taken by the defendant corporation thereafter, and the circumstances under which the security was sold and the proceeds applied.
By way of resistance to the motion, plaintiff filed his affidavit asserting the cattle had been taken from him by Stern Finance Company; that Don W. Sweeten had for some days prior thereto "embarrassed and pressured him" into turning over his cattle to Stern Finance Company; that he did not sell his cattle to anyone, but rather they were repossessed by the finance company; that when he endorsed the check it was not his free and voluntary act, but was the result of pressure, threat and coercion practiced by the said Arthur Camenzind on behalf of and as a representative of defendant; that he felt "defeated, strong-armed and unable to pursue *853 my own will in the matter"; that his account with Stern Finance Company was not delinquent; and that Stern Finance Company failed to give him proper credits for refunds, insurance premiums and unearned interest.
There are other allegations in the affidavit but these are sufficient to show its general tenor.
Rule 237 now provides in part as follows:
"* * * * * *
"(b) For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
"(c) Motion and proceedings thereon. The motion shall be filed at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may file opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
"* * * * * *
"(e) Form of affidavits; Further testimony; Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or filed therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or oral testimony. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." (Emphasis added.)
This rule is based on rule 56 of the Federal Rules of Civil Procedure and there are only minor differences between that rule and ours.
The purpose of all summary judgment rules is to avoid useless trials. A party with a just cause should be able to obtain judgment promptly and without the delay and expense of a trial, where there is no genuine fact issue to be decided. Humboldt Livestock Auction, Inc. v. B & H Cattle Co., Iowa, 155 N.W.2d 478, 484, and citations. In ruling on a motion for summary judgment, the court's function is to determine whether such a genuine issue exists, not to decide the merits of one which does.
The rule provides that a party may not "rest upon the mere allegations or denials of his pleading." He must set forth specific facts showing there is a genuine issue. He cannot merely say there is one; but it must appear "by affidavits or otherwise" that this is the case.
It is clear the trial court's ruling granting summary judgment for defendants Stern Finance Company and Ben Stern was on the ground that plaintiff had refused to supply vital and material information both in his deposition and in the hearing on the motion. As already pointed out, this refusal was on the ground the answers would tend to incriminate him.
Plaintiff insists he was justified in refusing to answer under the protection of Amendment 5, Constitution of the United *854 States. This is conceded, and the trial court so ruled. This does not mean, however, that plaintiff may rely on his constitutional safeguard and yet go forward with his claim against another when that claim depends on information he refuses to divulge. Plaintiff is not the only one who has rights. Under rule 237, defendant may demand disclosure of specific facts which plaintiff relies on. If plaintiff does not comply with that rulefor reasons which are compelling to himand thereby prevents a genuine issue of fact from arising, his adversary in a proper case is entitled to summary judgment as to those issues.
One of the basic disputes here concerns the improper disposition by plaintiff of cattle covered by certain security instruments held by defendant Stern Finance Company. Facts concerning this issue are vital, both to the plaintiff's cause of action and to the preparation for trial of those defending against it. Clearly plaintiff has violated the provisions of rule 237, particularly subdivision (e), which states a party "may not rest upon the mere allegations or denials of his pleading but * * * must set forth specific facts showing that there is a genuine issue for trial."
II. We must now consider plaintiff's argument that the use of his refusal to testify as a ground for entering summary judgment against him is a denial of due process. He says this penalizes him for the exercise of his constitutional right against self incrimination.
We have several times held that the refusal to testify in a civil case because such testimony might incriminate him may be used against a party in that action. Amana Society v. Selzer, 250 Iowa 380, 388, 389, 94 N.W.2d 337, 342 and citations; Allen v. Lindeman, 259 Iowa 1384, 1396, 148 N.W.2d 610, 617.
In the Selzer opinion, at page 389 of 250 Iowa, at page 342 of 94 N.W.2d Reports, we said, "In summary, we hold defendant's failure or refusal to deny the facts pleaded * * * [on the ground the answers might tend to incriminate him] is, under rule 102, deemed an admission thereof and this application of the rule in the present suit does not deny defendant due process of law." (Emphasis added.)
Under rule 237, plaintiff's failure or refusal to answer material questions prevents the existence of any genuine issue of fact on those matters and defendant's affidavit must be taken as true to that extent.
In addition to that cited and discussed in Amana Society v. Selzer, supra, there is also other authority lending support to this conclusion. 6 Moore's Federal Practice, section 56.15, pages 2281-2286; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 486; Annest v. Annest, 49 Wash.2d 62, 298 P.2d 483, 484; Lund v. Lund, Fla. App., 161 So. 2d 873, 875; Meyer v. Benelli, 197 Kan. 98, 415 P.2d 415, 418; Levine v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574, 577, 578; Kisting v. Westchester Fire Insurance Co., (U.S.Dist.Ct., W.D. of Wisc)., 290 F. Supp. 141, 149; Laverne v. Incorporated Village of Laurel Hollow, 18 N.Y.2d 635, 272 N.Y.S.2d 780, 219 N.E.2d 294, 295; Stockham v. Stockham, Fla., 168 S.2d 320, 322, 4 A.L.R. 3d 539; Hornstein v. Illinois Liquor Control Commission, 412 Ill. 365, 106 N.E.2d 354, 358; Annotation, 4 A.L.R. 3d 545.
Such a result is not designed to punish plaintiff for his refusal to answer. It is simply a recognition of the provisions of rule 237 that the absence of a genuine issue of factfrom whatever causejustifies in appropriate cases the entry of summary judgment. The reason for such absence is incidental; the fact of the absence is determinative.
When plaintiff says he is being punished for exercising his right to remain silent, he is overlooking the real matter before us: that his silence, justifiable or not, prevents a justiciable issue from arising on the question involved.
*855 However, it is obvious from what we have already said plaintiff's refusal to answer should be considered under rule 237 only as to those matters upon which it directly bears. It is only then the refusal affects the existence of a genuine fact issue.
This is important here because the two counts of plaintiff's petition present completely different theories. We agree with the trial court as to Count I, but find plaintiff should have his trial on Count II.
III. Count I relies entirely on the assertion defendant Stern Finance Company "wrongfully, illegally and tortiously" seized plaintiff's cattle. Defendant denies any seizure at all and asserts the cattle were voluntarily sold by plaintiff to Arthur Camenzind.
However, assuming for present purposes that the cattle were seized or repossessed by defendant Stern Finance Company, plaintiff to recover must show this to have been a wrongful or tortious act. But the facts necessary, on the one hand, to prove it was wrongful and, on the other, to successfully defend by showing it was justified are the very facts plaintiff refuses to disclose.
As the record stands defendant has made a full statement by affidavits, as provided in rule 237, which plaintiff refuses to meet in the manner subsection (e) of the rule requires. Under such circumstances the question of whether seizure of the cattle was wrongful presents no genuine issue of fact. Defendant's affidavits stand uncontroverted. We believe entry of summary judgment on Count I was proper.
IV. Count II, however, presents entirely different issues, asking damages for the alleged wrongful conduct of defendants after the alleged seizure in disposing of the cattle and in accounting for the purchase price.
We point out our holding as to Count I is simply that plaintiff cannot go forward with that action based on wrongful repossession because there is no fact issue on that question. But this does not preclude a finding under Count II that there was in fact a repossession of the cattle.
Count II alleges there was and that defendants sold the cattle to Camenzind but "failed to use reasonable and diligent efforts to obtain the best and highest price for said animals; that the cattle were wrongfully disposed of by defendants and that defendants acted maliciously and with intentional disregard of the rights of plaintiff." He also claims he did not receive credit for various rebates, refunds, and unearned interest he was entitled to.
Eliminating the question of wrongful repossession, we cannot say no genuine issue of fact remains as to the dispute concerning whether the cattle were repossessed by defendants or were sold by plaintiffs; nor as to whether plaintiff obtained full credit for all items he disputes. We need not, nor do we, express any opinion on plaintiff's right to recover on the cause of action set out in Count II. We say only that there are genuine issues of fact to be decided and that plaintiff's refusal to respond to questions as heretofore noted does not in any way affect these issues.
We therefore hold the trial court was wrong in entering summary judgment on Count II. We reverse as to that part of the order and remand for trial on the merits.
So that there may be no misunderstanding of our holding, we specifically find plaintiff is precluded from asserting any claim based on the alleged wrongful repossession of cattle; and for the purposes of trial, it shall be taken as established, if it should be found defendant Stern Finance Company repossessed plaintiff's cattle, such repossession was proper and authorized under the security instruments executed by plaintiff.
V. We still have the status of two other defendants, Don W. Sweeten and Arthur Camenzind, to decide. They were not named in the proceedings as originally filed, and it was sought to bring them in *856 by amendment and service of original notice. Each filed a special appearance, and each was sustained. Neither of these defendants was a party to the summary judgment proceedings, and it therefore does not inure to their benefit.
The two special appearances present entirely different problems. We consider first that of Don W. Sweeten.
As already noted, Sweeten was not made a defendant when this action was started on July 21, 1966. An original notice was served on him on January 3, 1967. The original notice stated among other things the following:
"* * * that a petition is now on file * * * which petition prays for judgment against you for
"$32,000.00 on his first cause of action
"$26,847.50 on his second cause of action
"$35,000.00 on his third cause of action
"$32,000.00 on his fourth cause of action
"$35,000.00 on his fifth cause of action
"$35,000.00 on his sixth cause of action
"$35,000.00 on his seventh cause of action
* * *"
Sweeten filed a special appearance challenging the jurisdiction of the court on the ground that no petition was on file at the time notice was served on him "which comports with the notice served upon him and which demands the affirmative relief against him as shown in the purported notice served upon him."
If there is any pleading which amounts to a petition against the defendant Sweeten as described in the original notice above set out, it must be found in the amendment of December 10, 1966. As to the defendant Sweeten this amendment makes the following allegations:
"1. That the defendant Don W. Sweeten is a resident of Polk County, Iowa * * *
* * * * * *
"7. That said cattle were reduced to the possession of the defendant Stern Finance Company and Ben Stern by the defendant Don W. Sweeten, the agent, servant and employee of Stern Finance Company coming upon the premises of the plaintiff and asserting control and dominion over said cattle and selling the same to the defendant Art Camenzind also known as Arthur Camenzind.
* * * * * *
"WHEREFORE, plaintiff prays as in his original petition."
The prayer in the original petition was for judgment against the defendants Stern Finance Company and Ben Stern, who at that time were the only defendants against whom suit had been brought. We are constrained to hold that there was no petition asking personal judgment against Don W. Sweeten at the time notice was served upon him and at the time the notice stated that such a petition was on file. It is interesting to note that even the amendment of December 10, 1966, makes no allegation of wrongful conduct against Mr. Sweeten, nor does it set out any allegations which would justify a judgment against him. It recites only that Stern Finance Company and Ben Stern took possession of the cattle through the actions of their agent, servant and employee Don Sweeten.
We have serious doubts that the amendment of December 10, 1966, was intended to state a cause of action against Don W. Sweeten. It is more likely that plaintiff intended only to plead additional facts concerning his claim against Stern Finance Company and Ben Stern. The fact that service of original notice was not made upon Sweeten until almost a month after the filing of the amendment lends further support to this conclusion. Furthermore this is tacitly admitted by plaintiff in his brief and argument when he relies upon a later amended and substituted petition filed March 7, 1967, long after service of the original notice but before ruling thereon, as being the instrument in which he asks for judgment against Sweeten.
We hold plaintiff did not comply with our rule requiring that a petition must be *857 on file as stated in the original notice. There still remains the troublesome question whether this is properly raised by special appearance or whether it should be done by motion to dismiss. Our cases are not entirely in harmony, but our recent pronouncement in George v. Gander, Iowa, 154 N.W.2d 76, 78, 79, and cases therein discussed, appears sufficiently broad to cover the question here under consideration.
VI. The special appearance of Arthur Camenzind presents a different, and less doubtful, problem. His special appearance raises several jurisdictional grounds, but the only one we need discuss is that which challenges the method of service of original notice upon him.
Camenzind is a resident of Omaha, Nebraska. The original notice was served upon him there. It asked personal judgment against him. Camenzind claims such service does not confer jurisdiction on our courts to render such judgment and we agree.
We would have thought the rule that personal service of original notice outside the state of Iowa upon a non-resident of the state of Iowa conferred no jurisdiction on our court to enter personal judgment would not be disputed at this late date. This matter is extensively discussed in Allen v. Allen, 230 Iowa 504, 298 N.W. 869, 136 A.L.R. 617. For a more recent holding to the same effect see Emery Transportation Company v. Baker, 257 Iowa 1260, 1263, 1264, 136 N.W.2d 529, 531.
Plaintiff seeks to hold Camenzind responsible for a tort committed within this state. If Iowa courts have authority to make Camenzind answer for his alleged wrong, it must be because he has been subjected to our jurisdiction by compliance with section 617.3, Code of Iowa, the socalled long arm statute, one purpose of which is to provide relief against non-residents who could not otherwise be brought to bar. Plaintiff, however, has made no effort to comply with the provisions of this statute. Not only that, he claims the method selected by him to obtain jurisdiction over Camenzind is better than that devised by the legislature. While we concede plaintiff's right to hold this opinion, we must nevertheless decide this controversy on what the legislature said.
Section 617.3 provides that service shall be made upon a non-resident under circumstances such as exist here in the following manner:
"Service of such process or original notice shall be made (1) by filing duplicate copies of said process or original notice with said secretary of state * * * and (2) by mailing to the defendant * * * by registered or certified mail, a notification of said filing with the secretary of state * * *."
We have held on numerous occasions that when the legislature sets up an extraordinary method of securing jurisdiction over non-residents of this state, there must be clear and complete compliance with the procedure established by the statute. Fagan v. Fletcher, 257 Iowa 449, 451, 133 N.W.2d 116, 117, and citations; Andersen v. National Presto Industries, 257 Iowa 911, 919, 135 N.W.2d 639, 644; Esterdahl v. Wilson, 252 Iowa 1199, 1203, 110 N.W.2d 241, 243, and citations; Kraft v. Bahr, 256 Iowa 822, 826, 128 N.W.2d 261, 263.
Plaintiff made no effort to comply with the provisions of this statute and his purported service of original notice in the state of Nebraska was insufficient to confer jurisdiction over the person of defendant Arthur Camenzind, whose special appearance was properly sustained.
VII. Upon motion of the defendants Stern Finance Company and Ben Stern, the trial court assessed as part of the costs against plaintiff an attorney fee of $150.00 in favor of defendants' attorney for reasonable expense incurred by them as a result of the "bad faith resistance and affidavit filed by the plaintiff in resistance to the motion for summary judgment."
*858 Rule 237(g) provides, "Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt."
In view of our holding under Division IV we hold this was error and that part of the decree is reversed.
VIII. We have considered all matters raised by plaintiff's appeal. Except as already noted we find no merit in them.
Affirmed in part, reversed in part, and remanded.
All Justices concur except RAWLINGS and BECKER, JJ., who dissent.
RAWLINGS, Justice (dissenting in part).
I concede correctness of a reversal with regard to Count II of plaintiff's petition but cannot agree with the reasoning in Divisions I, II and III of the majority opinion or result there reached, and upon that basis alone respectfully dissent.
The penalty authorized under rule 237, Rules of Civil Procedure, as applied by the majority, makes it clear to me plaintiff was here confronted with the dilemma of surrendering his right to refuse to answer interrogatories propounded on the ground of self-incrimination, or assert such privilege and thereby subject himself to loss of right to proceed with trial of the case against Stern Finance Co. and Ben Stern under Count I of his petition. Plaintiff elected to stand on his rights under the Fifth Amendment, and what is in effect a resultant summary penalty is now espoused by the majority.
That may at one time have been deemed proper, but in my humble opinion it is now clearly contrary to recent holdings in Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082; Application of Gault, 387 U.S. 1, 42-50, 87 S. Ct. 1428, 1451-1455, 18 L. Ed. 2d 527; Spevack v. Klein, 385 U.S. 511, 87 S. Ct. 625, 17 L.Ed 2d 574; Garrity v. State of New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562; Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653; and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678. See also Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118.
An examination of these cases reveals the Fifth Amendment is today applicable to any federal or state proceeding, be it criminal, civil administrative, judicial, investigatory, or accusatory in nature, and must be held to afford the mandated protection without penalty.
In this vein the court declared, in Spevack v. Klein, supra, at 385 U.S. 514-515, 87 S. Ct. 628: "We said in Malloy v. Hogan [supra]:
"`The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringementthe right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * for such silence.' 378 U.S., at 8, 84 S.Ct., at 1493.
"In this context `penalty' is not restricted to fine or imprisonment. It means, as we said in Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106, the imposition of any sanction which makes assertion of the Fifth Amendment privilege `costly.' Id., 380 U.S. at 614, 85 S.Ct., at 1233. We held in that case that the Fifth Amendment, operating through the Fourteenth, `forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' Id., 380 U.S. at 615, *859 85 S.Ct. at 1233. What we said in Malloy and Griffin is in the tradition of the broad protection given the privilege at least since Boyd v. United States, 116 U.S. 616, 634-635, 6 S. Ct. 524, 534-535, 29 L. Ed. 746, where compulsory production of books and papers of the owner of goods sought to be forfeited was held to be compelling him to be a witness against himself.
"`It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half of their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' 116 U.S., at 635, 6 S.Ct., at 535." (Emphasis supplied)
And as stated in Gardner v. Broderick, supra, loc. cit., 392 U.S. 276, 88 S. Ct. 1915: "The privilege [Fifth Amendment] may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, 142 U.S. 547 at 585-586, 12 S. Ct. 195 at 206-207, 35 L. Ed. 1110; Murphy v. Waterfront Commission, supra, 378 U.S. at 79, 84 S.Ct. at 1609."
See also Amana Society v. Selzer, 250 Iowa 380, 384, 94 N.W.2d 337.
Additionally section 622.14, code, 1966, provides: "When the matter sought to be elicited would tend to render a witness criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as otherwise provided."
But plaintiff in the case at bar did not waive his privilege. Futhermore the majority refers to no statute or rule which would have afforded plaintiff coextensive immunity from any criminal consequences had he answered the questions asked of him, and I find none.
Most assuredly the threatened loss of right to proceed with civil litigation to trial of a case on its merits, regardless of ultimate result, is a powerful form of compulsion to make a litigant speak, to relinquish his constitutional right to remain silent when by speaking he would provide a link in the chain which might be used to prove criminality.
It is to me evident plaintiff is here subjected to a costly price for having exercised his privilege against self-incrimination.
And it is of no consequence that our Rules of Civil Procedure permit imposition of sanctions for failure or refusal to comply with them. Neither they nor any statute can override, nullify or transcend constitutionally guaranteed rights, privileges or immunities. See in this regard Article VI, United States Constitution; Iowa Motor Vehicle Association v. Board of Railroad Commissioners, 207 Iowa 461, 466, 221 N.W. 364, 75 A.L.R. 1; 16 C.J.S. Constitutional Law § 50, page 151; and 16 Am. Jur.2d, Constitutional Law, section 50, page 221.
Actually the question presented in the case before us is not whether the penalizing result reached is authorized by the rules. Rather, it is whether the sanction here applied, as approved by the majority, violates, in effect if not in fact, plaintiff's privilege to stand on his Fifth Amendment rights.
I submit the majority errs in holding, as it does, a summary judgment could properly be entered against plaintiff upon the basis of an exercise of his constitutional privilege against self-incrimination. In *860 support hereof see also Zonver v. Superior Court, Cal.App., 76 Cal. Rptr. 10; Simkins v. Simkins, Fla.App., 219 So. 2d 724; Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186, 189-190; 98 C.J.S. Witnesses §§ 431-433, pages 240-246; and 58 Am.Jur., Witnesses, section 45, page 49.
Upon the basis of the foregoing I would reverse and remand for trial on the merits of plaintiff's entire action against Stern Finance Co. and Ben Stern.
BECKER, Justice (dissenting).
I respectfully dissent.
Use of summary judgment procedures in lieu of the procedures available and rule 134, Iowa Rules of Civil Procedure, seems to me to have prevented an adequate determination of whether a plaintiff's refusal to answer discovery questions on grounds of self-incrimination can result in judgment against him. This procedural mistake (or devise) on the part of the defendant seems to me to make much of the analysis in Justice Rawlings' dissent premature.
When a party refuses to subject himself to discovery procedures the other side has an appropriate remedy. Rule 134, R.C.P. provides full power in the court to consider the situation and take appropriate action. Actions by the court authorized in rule 134(b) (2), R.C.P. include ordering the matters subject to inquiry to be taken to be established, prohibiting the recalcitrant party from supporting or opposing designated claims or defenses, prohibiting introduction of certain evidence, striking pleadings, staying proceedings until the order is obeyed, dismissing the action or any part of it, or entering judgment by default.
Of course, all these things must be done in a manner consistent with constitutional mandates including Amendments 5 and 14 to the Constitution of the United States. The procedures contemplated in rule 134, R.C.P. allow for orderly determination of what, if anything, can or should be done when a party "takes the 5th" during the course of discovery proceedings. Substitution of a motion for summary judgment changes the issues and effectively eliminates much of the discretion lodged in the court by rule 134, R.C.P. Such action should not be tolerated.
As Justice Rawlings' dissent makes plain, the consequences of asserting 5th Amendment rights in discovery proceedings constitute a complicated field. See 4 Moore, Federal Practice, section 26.22(5). I would reverse the summary judgment and remand this case for procedure under rule 134, R.C. P. and for such other action as would be consistent therewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626167/ | 464 So. 2d 525 (1985)
Debra STEWARD
v.
Keith STEWARD.
Civ. 4470.
Court of Civil Appeals of Alabama.
January 30, 1985.
Larry C. Odom, Red Bay, for appellant.
H. Neil Taylor, Russellville, for appellee.
EDWARD N. SCRUGGS, Retired Circuit Judge.
This is a child custody modification case.
In 1980 the parties were divorced and no provision was then made for the custody of the unborn child of the parties. In 1983 the father filed proceedings for the custody of the child, a daughter. An ore tenus trial was conducted by the trial court in October 1983. There was testimony then presented that the mother, the child and Ricky Crews (Ricky), who was married to someone other than the mother, had been living together in a house trailer for the previous year. Ricky had been convicted of forgery in the second degree, possession of marijuana and grand larceny, and had served a portion of a sentence in the penitentiary. He admitted to previously selling drugs but denied any recent sales; however, that denial was controverted by evidence which tended to implicate him in marijuana sales within the last three or four months. A motorcycle engine was repaired by Ricky in the living room of the house trailer, which resulted in grease and gasoline being upon the floor. Alcoholic beverages were consumed at or about the house trailer in the child's presence. The child began to use curse words and her attitude changed for the worse. There was evidence that the father was a fit person to have custody of the three-year-old daughter.
*526 Apparently the trial court determined to give the mother another, perhaps the last, chance to have custody of the child. In any event, on October 26, 1983, the trial court rendered a judgment which confirmed the custody of the child in her mother, upon the condition that Ricky move from the premises occupied by the mother and child by November 1, 1983, and that the mother have no further contact with Ricky after his move. The father and paternal grandparents were granted visitation rights with the child. No appeal was taken from that judgment.
The father's next custody pleading was filed on March 16, 1984. After extensive evidence was heard ore tenus by the trial court, a judgment was rendered which determined that, according to the testimony of the mother, she saw Ricky on at least five occasions after October 1983, and that, according to the testimony of other witnesses, the couple were seen together on two other occasions, the last being in February 1984. The trial court decided that it was in the welfare and best interest of the child that her custody be awarded to the father, and such an order was made with the mother being granted liberal visitation rights. The mother timely appealed.
In viewing that 1984 evidence in light of the ore tenus rule and other presumptions, the following is pertinently revealed.
After the 1983 judgment, the father moved from a rather small apartment to a 65-foot mobile home which is located upon his parents' farm about 1,000 feet from their home. The father has changed jobs from being a longhaul trucker to driving a local delivery truck, which permits him to now be at home every night. Again there was evidence that the father and his present wife are fit to have custody, that they love the child and that they will provide a stable home atmosphere for her which will be morally correct, and that the physical surroundings will be conducive with the physical well-being and care of the minor child. The paternal grandparents will assist in the rearing of the child.
The mother testified that she willingly violated the trial court's 1983 visitation order by denying to the father and to his parents those privileges.
Between the two judgments, the father picked up the child at three different residences where the mother and the child were then residing. The father was given no information as to whether they lived at two other pick-up places.
Since the 1983 judgment, the mother began working from Monday through Friday from 3:30 P.M. until 12:30 the following morning. While at work, she left the child with a babysitter at the sitter's home and, after her shift, the mother would awaken the child and take her home.
The evidence fully substantiated the trial court's findings regarding the mother's associations with Ricky after October 1983. The mother denied some of those meetings with Ricky and attempted to explain others as being of a business nature and being outside of the child's presence. She further testified that she has severed all relationships with Ricky. Evidence was also presented on her behalf which, if believed, would soften the effect of some of the facts as we have summarized them.
We have read and studied all of the extensive evidence which was heard by the trial court. Being an ore tenus matter, the factual holding of the trial court in favor of custody being awarded to the father is presumed to be correct, and we are not authorized to alter it unless the judgment was so unsupported by the evidence as to be palpably wrong. Rodgers v. Hill, 453 So. 2d 1057 (Ala.Civ.App.1984). A child custody modification decision rests within the sound discretion of the trial court. Davis v. Davis, 451 So. 2d 316 (Ala.Civ.App. 1984). The parent seeking the modification of a prior custody judgment has the burden of proof and must produce evidence that a change of custody will materially promote the welfare of the child; that is, evidence must be offered to overcome any disruptive effect which might be caused by uprooting the child. Ex parte McLendon, 455 So. 2d 863 (Ala.1984). There was most adequate *527 evidence to award custody to the father following the trial in October 1983, but, instead of doing so, the trial court opted to give to the mother conditional custody, and no appeal was taken from that decision. The mother promptly violated that clear and explicit condition. The mother's violation of that condition in the conditional custody award, her violation of the prior order of court as to visitation, the mother's hours of employment, her moving several times in a relatively short period of time, and the improvement in the home facilities and job of the father, are all factors which may be considered, although none of those factors, when considered alone, may justify a change in custody. Davis v. Davis, supra; McRight v. McRight, 444 So. 2d 869 (Ala.Civ.App.1984); McKim v. McKim, 440 So. 2d 562 (Ala.Civ.App.1983). However, the totality of the circumstances were such that whether or not child custody should have been granted to the father in 1984 rested within the discretion of the trial court. We find no abuse of that discretion. The modification judgment was supported by competent evidence that a change of custody to the father would substantially promote the welfare of the child, and such evidence was adequate to overcome any disruptive effect occasioned by that change of custody. We affirm.
The foregoing opinion was prepared by retired Circuit Judge Edward N. Scruggs, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626183/ | 345 S.W.2d 274 (1961)
H. J. GARDNER, Petitioner,
v.
Dollie Fae Stallings MARTIN et al., Respondents.
No. A-7945.
Supreme Court of Texas.
April 5, 1961.
Rehearing Denied April 26, 1961.
*275 Kenneth R. King and John E. Heitler, Tyler, for petitioner.
Goodwin & Cavin, Tyler, for respondent.
GRIFFIN, Justice.
Petitioner, as plaintiff in the trial court, sued respondents, defendants in the trial court, on a note secured by a deed of trust for debt and for foreclosure of the deed of trust on certain land described therein. Defendants filed an answer pleading that all matters and facts set up in plaintiff's petition had been fully determined and adjudicated adversely to plaintiff and in favor of defendants in a final, valid judgment theretofore rendered in a cause between the same parties upon the same claims in the same district court. Shortly thereafter the defendants filed their unverified motion for summary judgment setting out the same ground of res judicata alleged in their answer. The court set a time not less than ten days in the future for hearing the motion. Due notice was served on the plaintiff, and all parties and their attorneys appeared at the hearing. Plaintiff filed no controverting answer to the defendants' motion. At the conclusion of the hearing, the court granted defendants' motion for summary judgment.
Defendants motion for summary judgment alleged:
"Defendants say that all the matters and facts set up in Plaintiff's Original Petition have been fully determined and adjudged adversely to plaintiff and in favor of defendants by a final, valid judgment rendered in Cause No. 58-68, entitled H. J. Gardner vs. Dollie Fae Stallings Martin, et al, in the 114th Judicial District Court of Smith County, Texas, on the 27th day of June, 1958, which is shown by the pleadings, evidence and the judgment of the Court in said cause, which matters are all of record in said court, to which record reference is hereby made. The parties to said cause were the same persons who are parties to this suit and were adversary parties therein; the matters litigated in said cause were the same matters as are at issue in this suit; the matter and facts set up in plaintiff's petition herein were fully determined and adjudicated by the Judgment in said cause; and said judgment was rendered on the merits, is in no wise reversed, satisfied, or made void by said record, to which reference is hereby made, and still remains in full force and effect."
And the judgment entered by the trial court recites, among other things, the following:
*276 "* * * and upon the Court having heard and considered said motion, and argument of counsel, it is of the opinion and so finds, that said motion should be granted.
"It is, therefore, ordered, adjudged and decreed by the court that the Motion for Summary Judgment of the defendants, Dollie Fae Stallings Martin, et al, be and the same is hereby granted; and it is further ordered, adjudged and decreed by the Court that said plaintiff, H. J. Gardner, take nothing of and against said defendants, by his suit, and that said defendants go hence and recover their costs."
Plaintiff appealed to the Court of Civil Appeals on a record containing a transcript only, and that Court affirmed the judgment of the trial court. 336 S.W.2d 263. There were no papers attached to the transcript in this case in Cause No. 58-68 in the same 114th District Court of Smith County, and being the same court in which this cause was tried, nor are such records brought up in any manner. Plaintiff contends that defendants, on their motion for summary judgment, had the burden of showing that the parties, cause of action, and the thing sued for in Cause No. 58-68, pleaded as resjudicata were the same as those in the instant cause. Plaintiff further contends that the record before the appellate court shows no depositions, no admissions, no affidavits, nor evidence before the trial court showing such identity; nor are the necessary papers in Cause No. 58-68 attached to the motion. Therefore, he contends, defendants have not complied with Texas Rules of Civil Procedure Rule 166-A, so as to entitle defendants to a summary judgment.
It is well recognized that a trial court may take judicial notice of its own records in a cause involving the same subject matter between the same, or practically the same, parties. Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763; Cochran County v. Boyd, Tex.Civ.App., 1930, 26 S.W.2d 364, wr. ref.; Pridgen v. Denson, Tex.Civ.App., 1957, 298 S.W.2d 276, wr. ref., n. r. e.; McDonald, Texas Civil Practice, Vol. 4, p. 1394, § 17.26; McCormick & Ray, Texas Law of Evidence, 2d Ed., Vol. 1, p. 170, § 151; Id., p. 206, § 186; 31 C. J.S. Evidence § 50b, p. 620; 20 Am.Jur. 104, § 86; 17 Tex.Jur. 201, § 27.
Summary judgment is possible in this state only by virtue of the provision of Rule 166-A. To entitle a party to a summary judgment, the provisions of this rule must be strictly complied with. Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Insurance Company, 1957, 156 Tex. 467, 296 S.W.2d 233. "The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against him," McDonald, Texas Civil Practice, Vol. 4, p. 1392, § 17.26(VI).
Subsection (e) of Rule 166-A speaking of forms of affidavits says, "* * sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith * * *." Defendants' motion for summary judgment referred to Cause No. 58-68, and states "* * * which matters are all of record in said court, to which record reference is hereby made." Plaintiff further says that defendants' motion was not sworn to, nor was it accompanied by an affidavit. Rule 166-A(a) and (b) specifically provide that in proper cases motions for summary judgments may be made "with or without supporting affidavits." Since our decision in Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508, it has been settled that a summary judgment is not necessarily out of order where the corresponding motion is unverified and unsupported by affidavits, citing Rule 166-A, Texas Rules of Civil Procedure and 4 McDonald, Texas Civil Practice, pp. 1386 et seq., § 17.26. We hold, however, that a compliance with Rule 166-8(e) required that the certified copies of the documents referred to should be attached to the motion. There were no papers, records, or *277 other documents from said Cause No. 58-68 attached to the motion by either sworn or certified copies. Since the matters referred to were court records, certified copies should have been attached to the motion; therefore, defendants had not complied with the provisions of Rule 166-A and were not entitled to a summary judgment.
The judgments of both courts below are reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.
WALKER, J., concurs in the result.
STEAKLEY, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1642503/ | 4 So. 3d 1269 (2009)
Michael Wayne SMELLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 1D09-0459.
District Court of Appeal of Florida, First District.
March 24, 2009.
James Owens, Public Defender, First Judicial Circuit, and Jelani Berry, Assistant Public Defender, Crestview, for Appellant.
Bill McCollum, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
DISMISSED. See Palmer v. State, 782 So. 2d 508 (Fla. 1st DCA 2001).
BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626200/ | 464 So. 2d 1245 (1985)
STATE of Florida, Appellant,
v.
Daryl Omer WISE, Appellee.
No. AY-495.
District Court of Appeal of Florida, First District.
February 18, 1985.
Rehearing Denied March 26, 1985.
Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellant.
Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellee.
SHIVERS, Judge.
Appellant, State of Florida, appeals an order of the trial court dismissing Count II of a two-count information filed against appellee/defendant. We agree with appellant that the trial court erred in dismissing the count, and reverse.
The undisputed facts of the case show that appellee was introduced to Louis Acevedo on November 30, 1983. Acevedo was an undercover agent for the Narcotics and *1246 Organized Crime Unit (NOCU) and played the role of a South Florida cocaine supplier. All conversations between defendant and Acevedo were electronically recorded either by body bug or telephone tap. During their meeting on November 30, 1983, Acevedo and defendant discussed defendant's purchase of two ounces of cocaine. Defendant represented that he was willing to pay $1,300 per ounce. Acevedo replied that he could sell for no less than $2,000 per ounce. During the discussion, defendant showed Acevedo a roll of U.S. currency which defendant claimed to be $4,000. The money did not change hands and the quantity was not verified. Defendant stated, "At $2,000 I'm not interested in it." Acevedo responded that he "might give it to (him) at a lesser" but he first needed to "call his cousin." Defendant then stated, "I'm not promising nothing. I'm not promising nothing. If something comes up and you do me some good and you do me right, I'll do it right here."
The meeting ended with the agreement that defendant was to wait at a Gainesville restaurant while Acevedo checked with his "cousin." Approximately one hour later, Acevedo telephoned defendant at the restaurant and related that "he (cousin) don't want to go for it." Defendant replied, "That's cool" and hung up. No further contact or conversation occurred between defendant and Acevedo. A warrant to search defendant's house was later obtained by NOCU and, during the search, a roll of currency amounting to $4,011 was found beneath a mattress in defendant's bedroom.
Appellee/defendant was charged by Amended Information with possession of less than 20 grams of cannabis (Count I) and attempted trafficking in cocaine (Count II). Appellee filed a motion to dismiss Count II pursuant to Rule 3.190(c)(4), Fla. R.Crim.P. Appellant then filed a demurrer in which it argued that the facts presented a prima facie case of guilt against appellee. Although the State recounted the facts in its demurrer and argued a different interpretation of those facts than did appellee, the State did not file a traverse nor did it assert that any facts were in dispute. We agree with appellant that the undisputed facts present a prima facie case of guilt against the defendant, for the offense of trafficking in cocaine.
Defendant was charged, under Count II, pursuant to section 777.04(1) (Attempt) and section 893.135(1)(b):
Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine as described in s. 893.03(2)(a)4. or of any mixture containing cocaine is guilty of a felony of the first degree, which felony shall be known as "trafficking in cocaine."
Any attempt consists of two elements: (1) a specific intent to commit the crime, and (2) an overt but ineffectual act done toward the crime's commission. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923). Further, it has been held that the "overt act" must go beyond mere preparation.
There must be some appreciable fragment of the crime committed and it must be in such progress that it would be consummated unless interrupted by circumstances independent of the will of the attempter.
Groneau v. State, 201 So. 2d 599, 603 (Fla. 4th DCA), cert. denied, 207 So. 2d 452 (1967) (emphasis supplied). The State evidently sought conviction for "trafficking" based upon an alleged attempt to knowingly possess the cocaine.
First, it is well established that, when a jury question exists, it is error for the trial court to grant a (c)(4) motion to dismiss. State v. Green, 400 So. 2d 1322 (Fla. 5th DCA 1981); State v. Radandt, 410 So. 2d 665 (Fla. 4th DCA 1982). Intent is such a fact question and should be determined by the trier of fact, not by the trial court in a motion to dismiss. State v. J.T.S., 373 So. 2d 418 (Fla. 2d DCA 1979); State v. Evans, 394 So. 2d 1068 (Fla. 4th DCA 1981). Second, the facts establish a prima facie case that appellee went beyond mere preparation to possess cocaine and *1247 fell short of committing the crime only because of circumstances independent of his will. Appellee argues that he voluntarily stopped the process by refusing to purchase the cocaine at the seller's asking price. We think the facts could just as easily indicate that appellee would have purchased the cocaine but for the seller's refusal to lower the price a circumstance "independent of the will of the attempter." Any interpretation of the facts, however, should be made by the trier of fact.
Accordingly, we reverse the trial court's order dismissing Count II of the Information.
BOOTH, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626181/ | 464 So. 2d 1071 (1985)
STATE of Louisiana
v.
Shirley MAILLIAN.
No. 84 KA 0507.
Court of Appeal of Louisiana, First Circuit.
February 28, 1985.
*1073 Ossie Brown, Dist. Atty. by Asst. Dist. Atty. John Sinquefield, Baton Rouge, for plaintiff-appellee.
J. Michael McDonald, Baton Rouge, for defendant-appellant.
Before EDWARDS, SHORTESS and SAVOIE, JJ.
SAVOIE, Judge.
Shirley Maillian was indicted by a grand jury on August 31, 1983, charged with second degree murder of her estranged husband, Ronnie Maillian, a violation of L.S. A.-R.S. 14:30.1. Maillian pled not guilty and, after a jury trial, was found guilty of the responsive verdict of manslaughter, a violation of L.S.A.-R.S. 14:31. The trial court sentenced Maillian to twenty-one years imprisonment in the custody of the Louisiana Department of Corrections. In addition, Maillian was given a two-year sentence pursuant to L.S.A.-R.S. 14:95.2 because the facts of the instant offense disclose that it was committed with a firearm. The trial court ordered the two-year sentence to be served consecutively to the twenty-one years imposed and without benefit of parole, probation, suspension of sentence or credit for good time.
Maillian brings this appeal urging eight assignments of error:
1. The trial court erred in allowing the prosecution to comment on inadmissible evidence in its opening statement and not granting defendant's motion for a new trial based on the prejudicial statements.
2. The trial court erred in not granting defendant's motion for a mistrial after the prosecution told the jury about the victim's alleged vasectomy and the defendant's alleged abortion after the court ruled this evidence to be inadmissible.
3. The trial court erred in not allowing defendant's private investigator to testify to prior hostile acts of the victim.
*1074 4. The trial court erred in allowing any testimony from the victim's attorneys.
5. The trial court erred in not granting the defendant a mistrial after the in camera hearing with the juror, Carol Kaiser.
6. The trial court erred in not granting defendant a new trial since she was not present at the court's in camera hearing on the jurors, Carol Kaiser and Mary Henderson.
7. The trial court erred in not granting the defendant a mistrial when the prosecutor told the jury about the testimony of the defendant's custody case and allegations in the family court suit between defendant and victim.
8. The trial court erred in giving the defendant an excessive and illegal sentence.
Assignments of Error Nos. 3 and 6 are not briefed and are thereby considered abandoned. Uniform RulesCourts of Appeal, Rule 2-12.4.
At the time of the instant offense, Ronnie Maillian and Shirley Maillian were legally separated. Shirley Maillian continued to reside in the matrimonial domicile, and Ronnie Maillian lived with his girlfriend, Joyce Paul, and the Maillian's ten year old son, Matthew, in a house located several miles from defendant's house.
During the early morning hours of August 22, 1983, Matthew left his father's house without permission, apparently travelling by bicycle to his mother's house. Matthew would not return to his father's home on August 22, 1983, although negotiations between the parents' respective attorneys had achieved some progress. All parties to the matter had agreed to meet on the morning of August 23, 1983 to discuss the issue of Matthew's custody. After speaking by telephone with his son at about 7:00 P.M. on August 22, 1983, Ronnie Maillian and Joyce Paul went to her sister's house for food and drinks.
According to the trial testimony of Joyce Paul, she and Ronnie Maillian left her sister's house about 11:30 P.M. and drove to Shirley Maillian's house. Ronnie Maillian got out, walked to Shirley Maillian's front door, and rang the door bell. Joyce Paul stated that she exited the car a short time later and observed Shirley Maillian standing behind a glass panel beside the front door. Ronnie Maillian continued to ring the doorbell and knock on the front door while insisting that he be allowed to see his son, Matthew. Joyce Paul testified that as Ronnie Maillian turned to warn her that Shirley Maillian had a gun, Shirley Maillian's gun discharged from inside the house striking Ronnie Maillian in the right parietal region of the head. Ronnie Maillian died a short time later as a result of the gunshot wound.
Joyce Paul further testified that Shirley Maillian came out of her house after the shooting and ordered Ms. Paul to leave the premises, saying that "this is what happens when you get involved with somebody else's husband." Ms. Paul testified that Shirley Maillian then went back inside her house for a short time and came out again. This time Shirley Maillian searched inside Ronnie Maillian's parked car. Shirley Maillian thereafter returned to her house and remained inside until law enforcement officers arrived. Detective Dietrich, who assisted in Shirley Maillian's arrest, located her inside the house without incident. Shirley Maillian told him that she had shot Ronnie Maillian accidentally, because she was afraid that he was going to burn down her house.
ASSIGNMENT OF ERROR NO. 1
By means of Assignment of Error No. 1, Shirley Maillian contends that the trial court erred by allowing the prosecutor to comment on inadmissible evidence during his opening statement and by failing to order a mistrial due to the prejudicial nature of the prosecutor's comments. During the state's opening statement, defendant objected several times. Each of the defense objections was overruled by the *1075 trial court. When an objection is overruled, no motion for mistrial is required to preserve the error for review. State v. Williams, 373 So. 2d 1278 (La.1979). In his opening statement, the prosecutor made the following references:
[T]he original petition [for legal separation] shows that Dr. Maillian filed an original petition alleging [defendant] had made threats upon his life, had stolen a gun from him, had taken over his business, had been cruel and mean to the child.... [T]he divorce proceedings heated up leading to an ... embittered child custody action in which the defendant's own mother testified against her and filed an affidavit notarized by Mr. Maillian's own attorney..... We will show evidence that, from his point of view, that she underwent ... one or more pregnancy terminations against his will.... We will show you that, later, that she was, despite this vasectomy by her husband, that she gave birth to a second child that was born after the, after her husband had left in October.... That Dr. Maillian claimed that this wasn't his child and started legal proceedings which now had been filed to disavow this child.
Article 766 of the Louisiana Code of Criminal Procedure provides:
The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.
Under this article, the state's opening statement is mandatory. Strictly speaking, the opening statement need not detail the state's evidence but simply is designed to describe the state's case in general terms sufficient to enable the jury to understand the evidence as it unfolds as well as to inform the defendant. State v. Sneed, 316 So. 2d 372 (La.1975). When the prosecutor details evidence which subsequently is not admitted, he takes the risk that a mistrial may have to be granted. See, State v. Bell, 279 So. 2d 164 (La.1973).
The prosecutor's opening statement is not evidence and has no probative force. State v. Green, 343 So. 2d 149 (La. 1977). The general rule is that, absent bad faith on the part of the prosecutor or clear and substantial prejudice, references in the opening statement to evidence later ruled inadmissible is not ground for a mistrial. The rule takes into account that proof frequently falls short of professional expectations. Id.
Defendant has not shown, nor does the record indicate, that she suffered any clear and substantial prejudice from the remarks. In addition, there is no conclusive indication of prosecutorial bad faith as the state made every effort to admit evidence at trial relative to the objectionable portions of its opening statement.
This assignment is without merit.
ASSIGNMENTS OF ERROR NOS. 2 AND 7
(ARGUMENTS NOS. 2 AND 3, RESPECTIVELY)
By Assignment of Error No. 2, defendant urges that the trial court again erred by failing to grant a mistrial following the prosecutor's attempts to introduce inadmissible evidence referenced in his opening statement. The evidence objected to included reference to Shirley Maillian's having previously terminated a pregnancy by abortion, and to Shirley Maillian's having given birth to another child which could not have been fathered by Ronnie Maillian because he had an intact vasectomy. By Assignment of Error No. 7, defendant urges that the trial court again erred by failing to grant a mistrial after the prosecutor sought to introduce inadmissible evidence also referenced in his opening statement, that Shirley Maillian's mother had testified during family court proceedings against Shirley Maillian's retaining custody of Matthew Maillian. In addition, defendant urges that the cumulative effect of the above referenced errors was so prejudicial as to preclude Shirley Maillian's receiving a fair trial.
*1076 The prosecutor's first attempt to introduce the fact of Ronnie Maillian's vasectomy was during the testimony of Joyce Paul. Shirley Maillian's objection based on hearsay was properly sustained by the trial court; however, no further relief was sought by defendant. If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard or mistrial. State v. Michel, 422 So. 2d 1115 (La.1982). The state also asked the pathologist who had performed the autopsy on Ronnie Maillian if the victim had an intact vasectomy at the time of his death. Defendant's objection to that question based on its lack of relevance was also properly sustained by the trial court. Again, no further relief was sought by defendant. The trial court also advised the state, out of the presence of the jury, that evidence of the victim's vasectomy might be admissible in rebuttal depending on defendant's developing trial strategy.
The prosecutor's third attempt to admit evidence of the victim's vasectomy was through the testimony of the doctor who had performed the procedure. In this instance the state, out of the presence of the jury, admitted that Dr. Vick's testimony was solely for the purpose of establishing the fact of the victim's vasectomy. Despite the trial court's advising the prosecutor that the evidence had no relevance at this time, when the jury was returned, the state called Dr. Vick to the stand and asked him if he had performed a vasectomy on Ronnie Maillian. Again the defendant's objection was sustained and the trial judge, sua sponte, admonished the jury to disregard the evidence as not being admissible.
Through the testimony of Robert Funderburk, an attorney who had represented the victim in domestic relations litigation, the state sought to introduce evidence that Shirley Maillian's mother had testified against her at a child custody proceeding. The objection to the state's question to Mr. Funderburk "Did her own mother testify against her in the hearing?" was properly sustained by the trial court. However, defendant's motion for a mistrial was denied. Thereafter, the prosecutor sought to introduce an affidavit signed by Shirley Maillian's mother. Objection to introduction of that document was also sustained. During further questioning of Mr. Funderburk concerning investigation of the paternity of Shirley Maillian's second child, the prosecutor asked: "Did you ever have in your possession or did you observe a check written by the defendant to Delta Women's ___." Although defense objection to this question was sustained, motion for mistrial was denied.
After the jury had been recessed for the day, the trial court admonished the state, in pertinent part: "I know that you know better than to ask that kind of a question and I will request that you refrain from that in the future. Anything further along those lines and I will be forced to grant a mistrial."
Thus, the trial judge, although noting that the state's line of questioning was irrelevant but potentially prejudicial, declined to grant a mistrial. In the present case, the prosecutor's questioning which sought to elicit information concerning the alleged bad character of Shirley Maillian through specific acts, did not fall within the proscriptions of La.C.Cr.P. art. 770 and does not require automatic reversal. The provisions of the Code of Criminal Procedure which have been recognized as applicable to this situation are articles 771 and 775. The general rule regarding reversible error due to improper questioning, where the judge has ruled in defendant's favor and admonished the jury to disregard the question, requires a clear showing that the matters complained of are of such an extreme prejudicial nature that the damage caused could not be erased from the minds of the jurors and that, as a consequence, the defendant was deprived of a fair and impartial trial. State v. Morris, 404 So. 2d 1186 (La.1981).
Although cognizant that the subject matter addressed by the state's improper questioning, particularly the subject of abortion, is often charged with controversy and emotion, *1077 we are of the opinion that the questions asked by the prosecutor were not sufficiently prejudicial to warrant a reversal over and above the trial judge's admonitions. The questions did impugn Shirley Maillian's character; however, the verdict alone indicates that the jury accepted that the victim was provoking Shirley Maillian by returning the responsive verdict of manslaughter.
Accordingly, these assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 4
By means of this assignment, defendant urges that the trial court erred in allowing the state to call to testify two attorneys who had handled Ronnie Maillian's domestic relations litigation because the state knew that these attorneys would have to invoke the attorney/client privilege.
When the state knows that a witness will exercise a valid privilege, it is reversible error to require the witness to exercise his privilege in front of the jury. State v. Day, 400 So. 2d 622 (La.1981). However, in the instant case, the state did not call these witnesses for the purpose of impressing upon the jury a claim of privilege as defendant contends. Instead, the purpose of the testimony was an attempt by the state to show motive on the part of Shirley Maillian.
Relative to attorney-client privilege, our law provides:
"The right to exclude the testimony, as provided in the three articles last preceding, is purely personal, and can be set up only by the person in whose favor the right exists. If the right is waived, the legal adviser, the physician and the clergyman, as the case may be, may be examined and cross-examined to the same extent as any other witness." L.S.A.-R.S. 15:478.
Under the plain dictates of § 478, Shirley Maillian had no right to exclude the testimony, as she is not "the person in whose favor the right exists." [She was neither attorney nor client.] Therefore, the trial court was correct in ruling that the attorneys were competent to testify.
Accordingly, this assignment of error is meritless.
ASSIGNMENT OF ERROR NO. 5
By this assignment, defendant contends that the trial court erred by not granting defendant a mistrial following the in camera hearing with juror, Carol Kaiser.
The record reveals that during the second day of trial, a juror, Carol Kaiser, requested of the bailiff that she be excused from the jury because she remembered that she knew the defendant. An in camera conference was held with the trial judge, prosecutor, defense counsels, and Carol Kaiser present. Ms. Kaiser revealed that she was close friends with a woman, named Lucille Begue, whom she had observed sitting behind the mother of the victim. Although Ms. Kaiser did not know if Lucille Begue was aligned with Shirley Maillian or the victim, she stated that just knowing that there was a potential relationship with either side would affect her decision in this case. When questioned by defense counsel, Ms. Kaiser replied that because of the uncertainty of Lucille Begue's relationship with the victim or defendant, she would probably lean towards defendant.
Ms. Kaiser was then sent back to the jury room while the trial court determined that Lucille Begue was married to the victim's uncle. This information was communicated to Ms. Kaiser, over defendant's objection. After having been advised of this information, Ms. Kaiser admitted that she would not be able to put it aside and make an objective decision based on the evidence admitted at trial. The trial court then excused Ms. Kaiser from the jury and substituted her with the alternate juror, Charles Baker.
Louisiana Code of Criminal Procedure art. 789 provides for the replacement of a juror with an alternate juror in the event the former becomes unable to serve or is disqualified prior to the time the jury retires *1078 to consider its verdict. In the instant case, the trial judge gave defendant an opportunity to explore Ms. Kaiser's inability on the record; she was not summarily discharged for inability to perform. Further, the record reveals that Ms. Kaiser fully manifested that she could not render an impartial verdict according to the law and the evidence prior to the trial court's advising her of Lucille Begue's relationship to the victim's family.
A defendant's right to have the original twelve jurors selected decide his fate is not absolute. Ample cause was present to discharge this juror. See, State v. Clay, 441 So. 2d 1227 (La.App. 1st Cir.1983), writ denied, 446 So. 2d 1213 (La.1984).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 8
By means of this assignment, defendant contends that the sentence imposed was excessive in violation of Louisiana Constitution Article 1, Section 20.
Defendant was sentenced to twenty-one years imprisonment at hard labor, the maximum permissible sentence for violation of LSA-R.S. 14:31, and an additional two years, without benefit of probation, parole, suspension of sentence, or credit for good time pursuant to LSA-R.S. 14:95.2.
A sentence imposed within statutory limits may still violate Louisiana's prohibition against excessive sentences. See, La. Const. art. 1, section 20 (1974); State v. Sepulvado, 367 So. 2d 762 (La. 1979). The appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive are the guidelines provided in La.C.Cr.P. art. 894.1. State v. Moore, 446 So. 2d 917 (La.App. 1st Cir.1984).
The initial elements to be analyzed in determining whether the punishment is constitutionally disproportionate are the nature of the offense and the offender. Another factor is comparison of the defendant's punishment with the sentences imposed for similar crimes by the same court and other courts. Such a comparison helps to assure that a defendant's sentence will be proportional in comparison with other offendersthat the maximum sentences will be reserved for the most egregious or blameworthy of offenders, and that others of similar conduct will not receive sentences lighter than the defendant's. State v. Telsee, 425 So. 2d 1251 (La.1983).
In the present case, the nature of the offense involves a wife shooting her husband. The incident occurred in the middle of the night when the husband, who was under a court order not to go to the house, began ringing the doorbell and knocking on the door of the home while demanding to see his son. The son had earlier run away from the house shared by the husband and the husband's girlfriend. Earlier in the evening, all parties and their attorneys had agreed to meet the next morning in order to peaceably settle the controversy. In spite of this agreement, the husband went to Shirley Maillian's house and precipitated the confrontation which took his life. The jury returned a responsive verdict of manslaughter, which shows that its members did not consider the offense to be coldblooded or premeditated.
When looking at the offender, it is helpful to look at the grounds mentioned in La.C.Cr.P. art. 894.1(B), which are to be accorded weight in the determination of suspension of sentence or probation. One ground is that there was a substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense. Closely related to this is the ground that the defendant acted under strong provocation. In this case, the parties were undergoing a very bitter separation and custody dispute. There is evidence in the record showing that the victim's girlfriend was resentful of Shirley Maillian and taunted her on the telephone. Also, though Ronnie and Shirley Maillian were legally separated, his relationship with Ms. Paul was extramarital, and there was no attempt by the victim to be discreet in his conduct. This was obviously a cause of much embarrassment to *1079 Shirley Maillian. Another ground is where the victim of the defendant's criminal conduct induced or facilitated its commission. In the present case, the victim defied a court order by going to Shirley Maillian's home in the middle of the night. The record also establishes that the victim had been drinking prior to the incident.
Another consideration is that the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime. In this case, Shirley Maillian had no prior record. Her arrest for the present offense was the first time she was ever arrested. A further ground to consider is whether the defendant's criminal conduct was the result of circumstances unlikely to reoccur. As previously stated, the parties were going through a bitter separation and custody proceeding. An additional factor to consider is whether the character and attitudes of the defendant indicate that she is unlikely to commit another crime. Shirley Maillian was interviewed by mental health experts both before and after the incident in which she took her husband's life. All those who interviewed her were in agreement that she was under a great deal of pressure from the break-up of her marriage. Her psychiatrist, Dr. Cenac, stated that he believed that she would not be a danger to anyone. Finally, the fact that the imprisonment of the defendant would entail excessive hardship to himself or his dependents must be considered. In the present case, Shirley Maillian has two young children. Consideration must be given to this fact.
We must next compare Shirley Maillian's punishment with the sentences imposed for similar crimes by the same court. In State v. Stevenson, 447 So. 2d 1125 (La.App. 1st Cir.1984), the defendant, who was 15 years old, shot and killed the victim with a .22 caliber magnum pistol. The defendant was sentenced to five years, plus two years pursuant to R.S. 14:95.2. In State v. McKnight, 446 So. 2d 915 (La.App. 1st Cir. 1984), defendant was charged with the shooting death of his estranged wife. The defendant stated that the gun went off accidentally as he was attempting to give the gun to his wife. The trial judge went thoroughly into defendant's past record, noting what portions of C.Cr.P. 894.1 he was and was not considering. The defendant was sentenced to serve eighteen years, plus two years pursuant to R.S. 14:95.2. In State v. Cage, 444 So. 2d 347 (La.App. 1st Cir.1983), the defendant followed his former paramour and her girlfriend home from a lounge, found his way into her apartment and then shot the victim in the face. The defendant was sentenced to two years unsupervised probation, plus two years pursuant to R.S. 14:95.2. In State v. Lang, 430 So. 2d 1239 (La.App. 1st Cir. 1983), defendant was convicted of manslaughter. He was sentenced as a multiple offender to serve twenty-one years. This was one-half of the maximum possible sentence. He had a prior record, both as a juvenile and as an adult, and the trial court found the crime to be a bloody and brutal homicide. In State v. Brown, 412 So. 2d 998 (La.1982), defendant pled guilty to manslaughter. Defendant shot and killed the victim in an argument. Defendant was sentenced to ten years.
We must finally compare sentences imposed by other courts. In particular, we will concentrate on those cases in which the trial court found the maximum sentences to be appropriate. In State v. Fluker, 454 So. 2d 358 (La.App. 4th Cir.), defendant was convicted of manslaughter. Defendant and the victim argued over a call in a neighborhood football game. A fight ensued, and then defendant ran across the street, got a revolver, returned and shot victim in the head. The defendant received the maximum sentence of twenty-one years. The court held this sentence proper in view of the vicious manner in which this killing was committed. In State v. Brown, 452 So. 2d 790 (La.App. 4th Cir.1984), defendant and victim argued over a chain and earring. Defendant saw the victim sitting in a bar, left to get a gun, returned, and shot the victim four times. Defendant was convicted of manslaughter and given the maximum *1080 sentence as a second offender, fortytwo years. The court found that the record justified categorizing defendant among the worst of persons guilty of manslaughter.
In State v. Heath, 447 So. 2d 570 (La.App. 1st Cir.1984), defendant was convicted of manslaughter. Defendant and his roommate had become emotionally upset with each other, and the roommate became depressed. The defendant confessed he shot the victim in the head with a shotgun while the victim slept. Defendant then buried the body, and drove the victim's car to New Orleans, where he parked it in a parking garage. Defendant was sentenced to the maximum sentence of twenty-one years. On appeal, this court stated, "Despite defendant's lack of a prior record, we do not consider the sentence imposed so grossly disproportionate to the crime as to shock our sense of justice. Therefore, we do not find the sentence excessive." Id. at 577. This court also found the crime to be cruel and senseless.
In State v. Richardson, 446 So. 2d 820 (La.App. 2d Cir.1984), defendant and drunk victim were fighting when defendant shot victim in the chest. In sentencing defendant to the maximum sentence of twenty-one years, the trial court complied with C.Cr.P. art. 894.1 and particularized the sentence to the defendant. He found that the defendant had a prior record, and found no sufficient provocation. The court further found the case involved serious harm and that defendant's actions resulted in the needless and senseless death of another person. On appeal, the sentence was affirmed.
In State v. Davis, 440 So. 2d 818 (La.App. 1st Cir.1983), defendant and his wife were arguing when the wife was mortally wounded by a gunshot. Defendant claimed the gun, while in his wife's hand, discharged during the struggle, but the trial court found that the evidence showed this claim to be impossible. Defendant was found guilty of manslaughter and sentenced to the maximum term of twenty-one years. On appeal, this sentence was affirmed, the court especially noting the defendant's extensive criminal record, with sixteen offenses, including a prior manslaughter offense.
In State v. Smith, 437 So. 2d 252 (La. 1983), the defendant and two companions waited for the victim at his trailer. When the victim arrived, he was tied up, and while one of his companions held a gun on the victim, the defendant drove the group to a place where the victim was further beaten and eventually shot by another member of the group. The defendant was convicted of manslaughter and given the maximum sentence of twenty-one years. The Supreme Court upheld the sentence because of the extreme brutality involved in the offense, and the fact that the trial judge found a considerable risk that the defendant would be involved in further criminal activity.
In State v. Germain, 433 So. 2d 110 (La. 1983), defendant was convicted of manslaughter in the beating death of his three-year old step-daughter. At trial, testimony revealed that the child had bruises of all colors over her entire body, including too many small contusions on the brain to count. Defendant was sentenced to the maximum term of twenty-one years. The trial court found that the death of the child was not caused by one isolated instance of abuse, but by a pattern of abuse. This was affirmed, the Supreme Court holding that a lesser sentence would deprecate the seriousness of the offense.
In State v. Mathews, 428 So. 2d 988 (La. App. 1st Cir.1983), defendant was convicted of manslaughter in the death of his estranged wife. The estranged wife began dating a man named Mr. Smith, which caused a great deal of animosity between defendant and Mr. Smith. Defendant saw his estranged wife talking to Mr. Smith at his mother-in-law's house. Defendant pulled a gun on Mr. Smith, but the wife intervened and prevented any further action. Mr. Smith fled, and defendant and his estranged wife argued over the incident. When his wife told him she was going to meet Mr. Smith, defendant fired *1081 three shots into her head at close range, fatalling wounding her. The defendant was given the maximum sentence of twenty-one years. This sentence was affirmed, the court finding that the defendant had an extensive criminal record, including crimes against the person. He had previously beaten his wife, including one incident which required hospitalization. The court also found that a lesser sentence would deprecate the seriousness of the offense.
Finally, consideration must be given to the case of State v. Hayes, 446 So. 2d 1233 (La.App. 4th Cir.1984). In that case, the defendant was asked to babysit for his two-year old son born out of wedlock to his former girlfriend. The mother left the child with the defendant while the mother went to work. When the defendant returned the child to his mother that afternoon, the child was unconscious and had several bruises on his head. The mother brought the child to the hospital, where he died two days later from trauma caused by multiple blows to the head. Defendant testified that the child struck his head when he fell off the bed and when he was hit on the head by the door. The trial court (after defendant waived his right to trial by jury) found the story to be incredible. The trial court found the defendant guilty and sentenced defendant to the maximum term of twenty-one years.
On appeal, the conviction was affirmed, but the sentence was vacated. The court found that although the offense was serious and reprehensible because defendant caused the death of a two-year old boy, appropriate credit must be given to the mitigating factors in the case. The court paid particular attention to the defendant's pre-sentence investigation report. The report stated that the defendant had no prior record, including no arrests. The present offense was the only offense, either as an adult or juvenile. The probation officer apparently felt that the chance that defendant would commit another crime was slight. Because of these considerations, the court felt that the sentence was excessive.
The present case contains many similarities to Hayes, supra. The pre-sentence investigation report contains confidential information favorable to Shirley Maillian. It shows that she has two small children, no prior criminal history, and a steady employment history. The report also contains a statement by Mrs. Maillian's psychiatrist saying that he feels Mrs. Maillian would not be a threat to anyone. We feel that this case is not one of those cases which justifies the imposition of the maximum sentence.
Since we believe the sentence is excessive and prohibited by the Louisiana Constitution Article I, Section 20, we vacate the sentence and remand the case to the trial court for resentencing in accordance with the views expressed in the opinion.
CONVICTION AFFIRMED, SENTENCE VACATED AND REMANDED FOR RESENTENCING.
SHORTESS, J., dissents and assigns reasons.
SHORTESS, Judge, dissenting.
I agree with the majority's treatment of the excessive sentence assignment of error but would go further. I would reverse and remand for a new trial. This record clearly establishes a pattern of prosecutorial misconduct, which began with the State's opening statement and continued practically to the close of the State's case, in attempting to inject into the trial irrelevant and immaterial evidence as to defendant's bad character. A mistrial should have been granted.
I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626176/ | 464 So. 2d 1116 (1985)
STATE of Louisiana,
v.
Jack SEGURA.
No. CR83-640.
Court of Appeal of Louisiana, Third Circuit.
March 6, 1985.
Writ Denied May 24, 1985.
*1118 Michael Baham, Haik Haik, Etc., New Iberia, for defendant-appellant.
Ralph K. Lee, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
Before DOMENGEAUX, KNOLL and KING, JJ.
DOMENGEAUX, Judge.
The defendant, Jack Segura, eighteen years of age, was indicted by an Iberia Parish grand jury on June 1, 1982, and charged with the second degree murder of Todd Broussard, in violation of La.R.S. 14:30.1.
On September 29, 1982, following a trial by jury, the defendant was found guilty as charged by a unanimous decision. On November 16, 1982, defendant Segura moved for a new trial, alleging that his own testimony at the original trial on the merits was fabricated and that he had not murdered Todd Broussard. The defendant alleged that a young man named Lancon had committed the murder. The defendant had originally pled self-defense but there was direct evidence which seriously contradicted that claim. During the hearing on defendant's motion for a new trial the defendant maintained that Mr. Lancon stabbed the victim first and then defendant stabbed him again, allegedly under duress.
*1119 Following a lengthy hearing on the motion for a new trial, the trial judge denied said motion. On March 21, 1983, the trial judge imposed a mandatory sentence of life imprisonment. The defendant then appealed his conviction and sentence to this Court. Because the defendant had failed to designate and file assigned errors within the time prescribed by La.C.Cr.P. Art. 844, this Court was precluded from examining the errors raised in defendant's application and was limited to a review for errors patent on the face of the record. State v. Zeno, 322 So. 2d 136 (La.1975); State v. Walker, 434 So. 2d 1315 (La.App. 3rd Cir. 1983). Following a careful examination of the record pursuant to the provisions of La.C.Cr.P. Art. 920, this Court, finding no errors patent on the record, affirmed the conviction and sentence imposed upon the defendant by the district court. See State v. Jack Segura, 454 So. 2d 837 (La.App. 3rd Cir.1984).
Defendant then applied for writ of certiorari to the Louisiana Supreme Court. On September 28, 1984, the State Supreme Court granted the writ and remanded the case to this Court ordering this Court to require defense counsel to file assignments of error in the district court and to subsequently reconsider defendant's appeal.[1]
As a result of that order defendant filed eight assignments of error with the trial court.
FACTS:
On the night of April 24, 1982, defendant Jack Segura and his seventeen year old friend, Todd Broussard, attended a party in New Iberia. The defendant and his friend, Todd, decided to leave the party in order to harvest some marijuana plants at an undisclosed location. Before leaving the residence defendant took a large butcher knife from his host's kitchen.
The defendant and Todd drove to an empty lot near Dauterive's Hospital in New Iberia. Shortly after midnight, defendant appeared on foot at a local drive-in. While there he informed an acquaintance of his that he had just "stabbed somebody". Segura then telephoned his cousin and asked him to come and get him at the drive-in. The cousin arrived shortly thereafter and took Segura to his home. The defendant then told his cousin that he had stabbed a fellow to death. The two telephoned Segura's father and the three of them went to the home of the Assistant Chief of Police of New Iberia. Defendant's father told the Assistant Chief, a family friend, that defendant "may have stabbed someone". Defendant then led the group to an empty lot near Dauterive's Hospital where they found the dead body of Todd Broussard.
An autopsy disclosed that Broussard had multiple stab wounds to the back, chest, and brain. The victim had been stabbed fourteen times. The forensic pathologist testified that death resulted from stab wounds in the lower back which had pierced the victim's liver resulting in severe internal bleeding. At least two of the wounds to the chest and brain were determined to have been post-mortem.
At trial, it was stipulated that the blood stains found on defendant's clothing and shoes were compatible with the victim's uncommon blood type. Although the defendant told police that he had thrown the murder weapon into a drainage culvert, the weapon was never recovered.
The defendant was tried before a jury of twelve persons. He testified in his own behalf, alleging that he had stabbed Todd Broussard in self-defense. However, the defendant was unable to explain how this defense was compatible with the forensic pathologist's determination that the first fatal wounds were inflicted in the victim's back, and that there were at least two post-mortem wounds. The jury returned a unanimous verdict of guilty of second degree murder.
Following his conviction, at the hearing on a motion for new trial, but before sentencing, the defendant admitted to a new version of the circumstances surrounding *1120 Todd Broussard's death. The defendant stated that he was present when Broussard was killed but that Broussard had been stabbed to death by one Hansel Lancon, Jr. He further maintained that Lancon had forced him to inflict a stab wound upon the body of Todd Broussard after Lancon had finished stabbing him, thus accounting for the post-mortem wound(s). Segura alleged that he had perjured himself at trial out of fear for his family's as well as his own safety from threats made by Lancon.
The defendant further testified that Lancon had transported Broussard's body in the trunk of Lancon's car. Authorities obtained a search warrant and thoroughly tested Mr. Lancon's car. The search produced no incriminating evidence.
To substantiate his new allegations of innocence, the defendant sought to introduce at the hearing on the motion for a new trial, the results of voice stress analysis tests and hypnosis performed on the defendant which he alleged proved that he was now being truthful.
Following a lengthy hearing on the motion for new trial wherein the presiding judge allowed testimony as to the voice stress analysis and hypnosis under proffer of proof, the trial judge denied the motion for new trial. At the conclusion of the testimony concerning hypnosis and voice stress analysis, Judge delaHoussaye concluded that the defendant had not established the admissibility or credibility of the results of these procedures. Judge delaHoussaye stated that defendant, who now claimed to have perjured himself before the jury in his original trial, was not now worthy of belief. The search of Mr. Lancon's automobile and his testimony at the hearing apparently left no doubt in the trial judge's mind that Mr. Lancon had nothing to do with Todd Broussard's death. Moreover, the judge also reasoned that, even under the defendant's new version, Jack Segura admitted that he was present when Todd was stabbed to death and that he participated in that stabbing. He therefore denied the motion for new trial.
Defendant appeals both his original conviction and the denial of his motion for new trial alleging eight assignments of error.
ASSIGNMENTS OF ERROR:
1. The trial court erred in admitting into evidence state exhibit 15, a photograph of defendant, as such had no probative value and was prejudicial to defendant.
2. The trial court erred in overruling the defense objection, during re-direct examination of Major Norbert Broussard, to state's questions going beyond the scope of cross-examination.
3. The trial court erred in admitting into evidence photographs of the victim's body showing the stab wounds (exhibits 28, 29, 30) and in allowing the use of a mannequin (exhibit 31) to demonstrate entry and trajectory of the wounds as the prejudicial effect of these outweighed their probative value.
4. The trial court erred in refusing to incorporate in its instructions to the jury, three special jury instructions requested by defense.
5. The trial court erred in denying the motion for new trial on the ground that the evidence at trial was insufficient to support a conviction for second degree murder.
6. The trial court erred in refusing to admit testimony and exhibits at the hearing on the motion for a new trial regarding the Psychological Stress Evaluator tests performed on defendant.
7. The trial court erred in failing to view the videotape of the hypnosis of the defendant, which videotape was admitted into evidence at the hearing on the motion for new trial.
8. The trial court erred in denying the motion for a new trial, on the basis of newly discovered evidence and in order to serve the ends of justice.
ASSIGNMENT OF ERROR NO. 1:
Through this assignment of error the defendant argues that the trial court erred *1121 in allowing into evidence a photograph of defendant taken when he was arrested but in different clothing than he wore at the time of his arrest. The defendant makes no argument in support of this assignment other than to allege that this evidence was cumulative, of no probative value, and introduced only to prejudice the defendant. The defendant makes no showing of how such evidence prejudiced him. Moreover, the evidence appears to have been of great probative value considering defendant strongly alleged that he was drunk and/or drugged when he committed the crime charged. The photo was introduced to demonstrate defendant's appearance shortly after the crime so as to rebut allegations of a drugged or intoxicated condition.
The determination of the use of photographs at trial is largely left to the discretion of the trial judge and his ruling will not be disturbed absent a clear showing of abuse of that discretion. State v. Sawyer, 350 So. 2d 611 (La.1977); State v. Barber, 271 So. 2d 853 (La.1973). The defendant makes no such showing and from the facts it appears that the photo had significant probative value to substantiate the state's accusation that defendant was not in a drugged or intoxicated condition and to rebut defendant's allegations that he had acted under the influence of drugs and/or alcohol.
For the reasons stated, this assignment is without merit.
ASSIGNMENT OF ERROR NO. 2:
The defendant alleges through this assignment that the trial court erred in allowing the prosecution to ask questions of Major Norbert Broussard on redirect examination which were improper questions on redirect examination because they went beyond the scope of the cross-examination. Defendant makes no argument in brief to support this allegation other than to say it prejudiced the defendant. Assignments of error not briefed are considered abandoned.[2] Moreover, the transcript does not indicate that any objection was made by defense counsel during redirect. A defendant must make a contemporaneous objection and state his reasons. La.C.Cr.P. Art. 841. Thus, this irregularity cannot be raised on appeal as it was not objected to at the time of the occurrence. La.C.Cr.P. Art. 841; State v. Miles, 402 So. 2d 644 (La. 1981).
ASSIGNMENT OF ERROR NO. 3:
Through this assignment of error the defendant asserts that the trial court erred in allowing the introduction into evidence of three photographs, exhibits 28, 29, and 30; and a mannequin exhibit No. 31. He maintains that the three photographs of the victim depicting the stab wounds were unnecessary and cumulative as there was much testimony regarding the wounds. The defendant argues that the photographs were gruesome and of little probative value but greatly prejudicial to defendant. The defendant offers no reasoning as to why the mannequin should not have been allowed into evidence other than to assert that it was prejudicial.
When the court is faced with a question of admissibility of allegedly gruesome photographs which defendant asserts will do more to prejudice the jury than help them to reach a fair and impartial decision, the court must "weigh the relative probative value of the proffered evidence against its probable prejudicial effect." State v. Hawthorne, 345 So. 2d 1170 (La.1977). See also State v. Denney, 352 So. 2d 204 (La. 1977) and State v. Spell, 399 So. 2d 551 (La.1981). As a general rule, such a determination is left to the sound discretion of the trial judge who can best decide whether such evidence has a proper place in the jury's understanding of the issues. The trial judge's ruling in these matters will not be disturbed absent a clear showing of abuse of his discretion. State v. Sawyer, supra; State v. Barber, supra. Here, the photographs were introduced during the testimony of the forensic pathologist who *1122 performed the autopsy on the victim. The photographs were taken after all the blood had been removed and were taken to depict the location, size and number of stab wounds on the body. The court, in order to determine the usefulness of the photographs, questioned Dr. Trahan outside the presence of the jury. The doctor testified that he felt the photographs and the mannequin would be very helpful to him in explaining to the jury the trajectory and time sequence of the wounds. As defendant was arguing self-defense this evidence was of extreme importance in demonstrating that the first wounds, which were fatal, were inflicted in the back.
Thus the photographs were used to establish the location, number, sequence and severity of the wounds inflicted on the victim, as well as the identity of the victim. The mannequin aided the doctor by giving a three dimensional simulation of the sequence and manner in which the wounds were inflicted. It appears from the record that the photographs' and mannequin's probative values far outweighed their prejudicial effects, and while the photos are not pleasant, they are not so gruesome as to unduly prejudice the jury. There appears to be no abuse of discretion by the trial judge.
For the reasons stated above, these assignments are without merit.
ASSIGNMENT OF ERROR NO. 4:
Through this assignment the defendant complains that the trial judge improperly refused to give three special jury instructions requested by defendant concerning (1) an explanation of the responsive verdicts; (2) an explanation of the defense of self-defense and the State's burden of proof; and (3) an explanation of a drugged or intoxicated condition as that relates to specific intent.
It is apparent from the record that the trial judge's instructions to the jury included everything mentioned in defendant's requested special charges. Defendant makes no showing that the judge's charges excluded any of the elements contained in the requested charges.
La.C.Cr.P. Art. 802 requires that the trial judge charge the jury as to the law applicable in the case; and La.C.Cr.P. Art. 807 which governs special requested charges provides in pertinent part:
"A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given."
The trial judge's general charges to the jury included a thorough explanation of the responsive verdicts; a thorough explanation of the law as applicable to selfdefense and the state's burden of proof; as well as a thorough explanation of how a drugged or intoxicated condition affects and relates to specific intent. Thus the judge was not required to give the defendant's requested special charges which were of the same effect as the general charges. It is well-settled that requested charges which are already substantially given and covered by the trial judge's general charge are properly refused. C.Cr.P. Art. 807; State v. Simmons, 422 So. 2d 138 (La.1982).
For the reasons stated above, this assignment is without merit.
ASSIGNMENT OF ERROR NO. 5:
The defendant asserts through this assignment of error that the trial court erred in failing to order a new trial on the grounds that the evidence at trial was insufficient to support a conviction of seconddegree murder. It appears that defendant has failed to brief this assignment and it should therefore be considered abandoned.[3] However, considering that defendant has somewhat intertwined this allegation in discussing other assignments of error, this allegation will be addressed.
First, it should be noted that there was both direct and circumstantial evidence *1123 presented in the court below. As such, the test to be applied on review to determine whether the evidence is sufficient to support a conviction under Jackson v. Virginia,[4] 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) is:
"[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See State v. Guillot, 389 So. 2d 68 (La.1980).
The defendant was charged with second degree murder, a violation of La.R.S. 14:30.1.
"Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm;..."
Thus the State was required to prove (1) that Jack Segura did in fact kill Todd Broussard; (2) that Segura acted with the specific intent to kill Broussard or to inflict great bodily harm upon him; and (3) that defendant did not act in self-defense.
"In a homicide prosecution where the defendant claims self-defense, the state must prove beyond a reasonable doubt, that the homicide was feloniously committed and was not perpetrated in selfdefense. State v. Hicks, 395 So. 2d 790 (La.1981)." State v. Edwards, 420 So. 2d 663 (La.1982).
The evidence and testimony of record leave no doubt that defendant did in fact kill Todd Broussard. Even the defendant himself admitted under oath that he killed Todd Broussard.
Defendant claimed that he did not act with the specific intent to kill or inflict great bodily harm but asserted instead that he was in a drugged and/or intoxicated condition. Apparently the jury was not convinced that defendant had acted under the influence of drugs and/or alcohol. It appears from the record that the evidence did not support defendant's contention and that there was an abundance of evidence upon which the jury based its finding.
One expert witness, a pharmacist, testified that the drug which defendant allegedly took works as a depressant and would have made the defendant much less aggressive and very sleepy. Such testimony is inconsistent with defendant's contention that due to the drugs he had taken he lost control of himself when a fight broke out between he and Broussard. Several other witnesses testified that defendant did not appear to have been under the influence of drugs or alcohol both shortly before the crime and shortly thereafter.
Additionally, the forensic pathologist's expert testimony clearly established that the first wounds inflicted upon Todd Broussard were in his back. The pathologist appeared to be certain of the sequence of the wounds and certain that those inflicted in Todd's back were the first wounds. The pathologist also testified that there were no "defense wounds" on the victim's hands or forearms or anywhere on his body. This further indicated that the victim was not attacking or approaching defendant head on as defendant asserted. Moreover, even the defendant's own testimony belies his assertion of self-defense. Defendant testified that after he wrestled the knife from Todd he tried to back off and give Todd an opportunity to leave, but earlier, defendant testified that as they wrestled over the knife he threw Todd down on the ground and just kept stabbing him. Altogether the defendant stabbed Broussard fourteen times, two wounds having apparently been inflicted post-mortem. Thus it appears that the facts are completely inconsistent with self-defense.
*1124 Additionally, the evidence appears to strongly support a finding that defendant did indeed act with the specific intent to kill or inflict great bodily harm upon Todd Broussard. The severity and number of wounds themselves allow for no other conclusion.
Specific intent is an ultimate legal conclusion to be resolved by the factfinder. State v. Graham, 420 So. 2d 1126 (La.1982). Although intent is a question of fact it need not be proven as a fact; but may, instead be inferred from circumstances of transactions and actions of the accused. La.R.S. 15:445; State v. Fuller, 414 So. 2d 306 (La.1982); State v. McDermitt, 406 So. 2d 195 (La.1981); In Interest of Franklin, 399 So. 2d 671 (La.App. 1st Cir. 1981). The evidence supported the jury's finding of guilty as charged.
For the reasons stated above this assignment is without merit.
ASSIGNMENTS OF ERROR NOS. 6 AND 7:
Through these assignments the defendant argues that the trial court erred in refusing to admit testimony and exhibits of Psychological Stress Evaluation test results and results of hypnosis; and in failing to view a videotape of the hypnosis of defendant which was introduced into evidence.
The defendant has not briefed assignment number seven regarding the failure of the trial judge to view the videotape of defendant under hypnotic interrogation, nor has defendant offered any argument in support of this assignment. Assignment number seven is therefore considered abandoned.[5]
The defendant asserts that the trial judge erred in refusing to admit testimony and exhibits of the results of Psychological Stress Evaluation (P.S.E.) tests performed on defendant as well as the results of hypnotic interrogations performed on defendant.
Both the P.S.E. tests and hypnosis results were offered to the court in an effort to prove that defendant's new version of the circumstances surrounding the death of Todd Broussard was the truth. At a hearing on a motion for a new trial, following defendant's conviction, but prior to sentencing, the defendant claimed that he had perjured himself before the trial court. The defendant asserts that he did not kill Todd Broussard but that one Hansel Lancon actually stabbed Broussard to death and then forced the defendant to stab Todd once so as to implicate defendant. Lancon allegedly threatened defendant and his family if defendant ever told the truth about how Broussard died. The defendant told authorities that the homicide had not occurred where the body was found but that Lancon had placed the body in the trunk of his car and dumped it on the empty lot where it was found. A thorough search of Lancon's car disclosed no evidence of defendant's accusation. No traces of blood were found in the trunk of Lancon's car and the trunk did not appear to have been recently cleaned. Lancon testified at the hearing on the motion for new trial and denied any knowledge of or involvement in the death of Todd Broussard. It is apparent from the record that the trial judge believed his testimony.
Thus the only "proof" defendant could offer to demonstrate that he was now telling the truth of what had happened were the results of the P.S.E. tests and hypnosis. The trial judge allowed defendant to introduce all testimony and evidence regarding these procedures under proffer of proof. After defendant completed his evidence under a proffer of proof, the trial judge was apparently not convinced of the accuracy or reliability of these procedures and therefore refused to accept them into evidence and refused to grant the motion for new trial based on this evidence.
The record demonstrates that the examiner who performed the P.S.E. tests had never performed such a test on a *1125 convicted person before and in fact was inexperienced at administering the test. The examiner admitted that he incorrectly performed one test and that he had to call in his instructor to aid him. Thus it does not appear that the trial judge abused his broad discretion in refusing to accept the results of the P.S.E. tests as credible evidence. The judge gave the defendant ample opportunity to demonstrate the reliability of these tests. The testimony reflects that defendant failed to make such a demonstration. While the Louisiana Supreme Court in State v. Catanese, 368 So. 2d 975 (La.1979) reasoned that lie detector and P.S.E.[6] tests were admissible in post trial proceedings, the determination of their admissibility and reliability in such proceedings is left strictly to the discretion of the trial judge.
"Consequently, the reasons for excluding polygraph evidence in criminal trials are not necessarily compelling in post trial proceedings. This avenue of admissibility, therefore, should be open, within the discretion of the trial judge, whenever the evidence is reliable and will aid in a decision." State v. Catanese, supra at 983.
The trial judge in the present proceedings went to great lengths in order to determine the reliability of the test results offered as proof that defendant's new story was the truth. In questioning the hypnotherapist the judge asked if a person could lie under hypnosis, the hypnotherapist answered "yes sir, they can." The judge also asked the hypnotherapist:
"Q. If a person lies under oath to avoid criminal responsibility, is he a likely candidate to lie under hypnosis.
A. Yes."
Thus it is clear from the record that the judge was well founded in his conclusion that the P.S.E. tests and the results of the hypnotic interrogation were unreliable and not admissible into evidence. There appears to have been no abuse of the trial judge's discretion.
For the reasons as stated above, these assignments are without merit.
ASSIGNMENT OF ERROR NO. 8:
Defendant argues through this assignment that the trial court erred in denying the motion for new trial on the basis of newly discovered evidence and in order to serve the ends of justice.
Defendant asserts that the butcher knife which was used to stab Todd Broussard to death was the same knife as the one found in the ashes of a home which had burned two days after the death of Broussard. This was not newly discovered evidence as contemplated under La.C.Cr.P. Art. 854 as the trial court, during the trial on the merits, refused to accept this same knife into evidence. The court had then ruled that the defendant failed to establish that this knife was in fact the murder weapon. Thus, the knife cannot be said to be "newly discovered evidence" or evidence unavailable at the original trial.
The Code of Criminal Procedure states in pertinent part the grounds for a new trial:
"The court, on motion of the defendant shall grant a new trial whenever: ... (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty; ..." La.C.Cr.P. Art. 851(3).
It does not appear that the results of the P.S.E. tests or of the hypnosis could be considered newly discovered evidence unavailable at the original trial. Defendant attempted at trial to demonstrate to the jury that he either acted in self-defense or under the influence of alcohol. The jury was not persuaded that such was the truth. The fact that defendant created a new version of Todd's death, which still implicated defendant as a principal, and which version is unsupported by any new *1126 evidence unavailable at trial, does not equate to "newly discovered evidence" which would support a motion for a new trial. The P.S.E. and hypnosis tests could very well have been conducted on defendant during the original proceedings. Moreover, as the results of these tests were ruled inadmissible, there was no other "newly discovered evidence" or evidence of any kind upon which to base the decision to order a new trial. The only testimony or evidence upon which the trial judge could have based a decision to grant the motion was defendant's own self-serving testimony. As the trial judge noted, the defendant openly admitted lying before the jury and was not now worthy of belief. Moreover the judge noted that even if defendant were not telling the truth, his new version does no more than admit to being a principal in the killing of Todd Broussard. Therefore there would be no change in the verdict of guilty under Louisiana law.
The defendant also alleges that the "ends of justice" require the trial judge grant his motion for new trial. The record does not support defendant's contention that an injustice was done by convicting him of the crime charged. The record does however offer substantial evidence of defendant's guilt. Additionally, the denial of a motion for new trial requested on this ground presents nothing for appellate review. State v. Toomer, 395 So. 2d 1320 (La.1981).
"The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. La.C.Cr.P. art. 851. State v. Vinet, 352 So. 2d 684 (La.1977).
For the reasons stated above, this assignment is without merit.
For the above and foregoing reasons the conviction and sentence of the defendant is affirmed.
AFFIRMED.
NOTES
[1] State of Louisiana v. Jack Segura, 457 So. 2d 7 (La.1984).
[2] Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So. 2d 1255 (La.1982); State v. Crawford, 441 So. 2d 813 (La.App. 3rd Cir.1983).
[3] Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So. 2d 1255 (La.1982); State v. Crawford, 441 So. 2d 813 (La.App. 3rd Cir.1983).
[4] "Although reviewing courts are obliged to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of appellate courts to nothing more than "second guessing" the triers of fact. See my concurring opinions in State v. Gatson, 434 So. 2d 1315 (La.App. 3rd Cir.1983); State v. Anderson, 440 So. 2d 205 (La.App. 3rd Cir.1983); and State v. Bryan, 454 So. 2d 1297 (La.App. 3rd Cir.1984).
[5] Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So. 2d 1255 (La.1982); State v. Crawford, 441 So. 2d 813 (La.App. 3rd Cir.1983).
[6] State v. Thompson, 381 So. 2d 823 (La.1980). Supreme Court held that Catanese was applicable to P.S.E. tests as much as to lie detector tests. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626227/ | 464 So. 2d 1340 (1985)
Ronald Melvin SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. AY-63.
District Court of Appeal of Florida, First District.
March 15, 1985.
*1341 Michael E. Allen, Public Defender, and Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen. and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.
SHIVERS, Judge.
Appellant appeals his judgment of conviction for first degree murder. We affirm appellant's conviction and hold that (1) similar fact evidence of a prior crime was properly admitted and (2) the trial court's refusal to instruct the jury regarding time-barred lesser included offenses was proper.
Appellant, defendant in the proceedings before the trial court, was indicted on January 25, 1983, for a first degree murder occurring in 1975, by arsenic poisoning.
Subsequently, the State gave notice of its intention to offer similar fact evidence of an attempted murder occurring in November 1981 by arsenic poisoning. After the court denied appellant's motion in limine, appellant was tried by jury. Appellant's request that the jury be instructed on lesser included offenses barred by the statute of limitations was denied. The jury subsequently found appellant guilty of first degree murder, and pursuant to the jury's recommendation, the court imposed a life sentence.
Appellant first contends that the trial court erred in admitting the similar fact evidence of the prior crime. We disagree.
The general rule regarding similar fact evidence is that evidence of any facts relevant to a material fact in issue is inadmissible where the sole relevancy is to prove the accused's bad character or propensity. Section 90.404(2)(a), Florida Statutes (1983); Williams v. State, 110 So. 2d 654 (Fla. 1959).
Such evidence must be relevant to prove a material fact in issue, such as plan, scheme or design, Williams, supra, intent, Dodson v. State, 334 So. 2d 305 (Fla. 1st DCA 1976), cert. denied, 341 So. 2d 1081 (Fla. 1977), or to rebut a defense or establish a pattern of criminality. Cotita v. State, 381 So. 2d 1146 (Fla. 1st DCA 1980).
Such evidence is not admissible where the collateral crime is merely similar to the crime for which the defendant is on trial. Crammer v. State, 391 So. 2d 803 (Fla. 2d DCA 1980). And, to be admissible, there must be something so unique or particularly unusual about the perpetrator or his modus operandi that it would tend to independently establish that he committed the crime charged. Green v. State, 427 So. 2d 1036 (Fla. 3d DCA), pet. for rev. denied, 438 So. 2d 834 (Fla. 1983).
In the instant case, we find that arsenic poisoning is a sufficiently unusual modus operandi to warrant the introduction of collateral crime evidence. Further, this evidence was relevant to rebut appellant's defense that the victim committed suicide, and was introduced to establish a pattern of criminality on the part of appellant. See Cotita, supra. Accordingly, we affirm on this point.
In the alternative, appellant contends that it was error for the trial court to refuse his request that the jury be instructed on time-barred lesser included offenses. Again, we must disagree.
In Tucker v. State, 459 So. 2d 306 (Fla. 1984), the Florida Supreme Court held that a request for such instructions, without more, does not constitute a proper waiver of the statute of limitations, and upheld the trial court's denial of said request. The court held that:
an effective waiver may only be made after a determination on the record that the waiver was knowingly, intelligently and voluntarily made; the waiver was made for the defendant's benefit and after consultation with counsel; and the waiver does not handicap the defense or contravene any of the public policy reasons motivating the enactment of the statute.
Granting a waiver on the bare request for instructions contained in the record before us would certainly fail to protect a defendant's best interests and might leave the conviction on otherwise time-barred *1342 offenses vulnerable to collateral attack.
Id. at 309.
As in Tucker, the appellant merely requested the time-barred instruction without any further indication that he wished to waive the statute of limitations. Inasmuch as Tucker directly controls, we affirm on this point as well.
Accordingly, appellant's conviction for first degree murder is AFFIRMED.
BOOTH, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626233/ | 464 So. 2d 1009 (1985)
Brenda SANCHEZ
v.
Norman J. SANCHEZ, Sr., et al.
No. CA 84 0101.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
*1010 Ralph D. Hillman, Thibodaux, for plaintiff-appellee.
E. Robert Sternfels, Napoleonville, for defendants-appellants.
Before WATKINS, CRAIN and ALFORD, JJ.
ALFORD, Judge.
This is an appeal from a judgment rescinding the sale of an undivided interest in certain immovable property due to the incapacity of the plaintiff-vendor, Brenda Sanchez. Additionally, the judgment allowed defendants, Norman and Mary Ann Sanchez, to retain mineral royalties rentals received from the time of the sale. Plaintiff filed suit alleging that at the time the sale was executed she was a minor, and thus, lacked the legal capacity to contract. Defendants, based on their contention that plaintiff ratified the sale subsequent to her attaining majority, appeal from that portion of the judgment rescinding the sale. Plaintiff appeals from that portion of the judgment allowing defendants to retain the mineral royalties and agricultural rentals.
On February 15, 1979, the day before her eighteenth birthday, plaintiff and her brother (not a party to this suit) executed an Act of Cash Sale conveying their undivided interest in certain immovable property to defendants for $3000.00. Plaintiff received $1,500.00 of the total sale price for her respective interest in the property. On February 17, 1979, plaintiff was asked to, and did sign, a Royalty Gas Transfer Order allowing defendants to begin receiving royalty payments effective March 1, 1979. Next, on August 27, 1982, plaintiff signed a Division Order showing the division of interest between plaintiff and defendants. There was also evidence presented showing that subsequent to her signing one of the above described orders, plaintiff received and cashed a $13.00 royalty check.
Defendants allege that plaintiff's actions in signing the division orders and cashing the royalty check amount to a ratification on the part of plaintiff thereby precluding her right to rescind the sale. The trial court, in its reasons for judgment, found no such ratification on the part of plaintiff.
LSA C.C. art. 1785[1] provides that minors, with certain limited exceptions, are incapable of contracting, however, their contracts may be rendered valid by either an express or implied ratification. Additionally, a minor can not make void the engagement which he subscribed to in his minority, once he has ratified it in his majority, whether that engagement was null in form or merely subject to restitution. LSA C.C. art. 2228. Both express and implied ratifications are covered in LSA C.C. art. 2272 which provides,
The act of confirmation or ratification of an obligation, against which the law *1011 admits the action of nullity or rescission, is valid only when it contains the substance of that obligation, the mention of the motive of the action of rescission, and the intention of supplying the defect on which that action is founded.
In default of an act of confirmation or ratification, it is sufficient that the obligation be voluntarily executed, subsequently to the period at which the obligation could have been validly confirmed or ratified.
The confirmation, ratification, or voluntary execution in due form, and at the period fixed by law, involves a renunciation of the means and exceptions that might be opposed to the act, without prejudice, however, to the right of persons not parties to it.
We agree with the trial court's determination that the two division orders signed by plaintiff do not suffice as an act of express ratification under LSA C.C. art. 2272. Although the August 27, 1982, order does make reference to the Act of Cash Sale, neither order can be said to contain the substance of the obligation sought to be rescinded. Additionally, neither order mentions the motive of the action of rescission or plaintiff's intention to supply the defect on which that action is founded.
However, it is readily apparent from the trial court's reasons for judgment that it failed to consider whether plaintiff had impliedly ratified the sale subsequent to her attaining majority. It was the trial court's opinion that only an act clothed in the same solemnities as that of the sale (i.e. a notarial act) would suffice to defeat plaintiff's attempted rescission. We disagree. The trial court's reasoning renders ineffective the clear language of the Civil Code allowing implied ratifications by minors upon reaching majority. LSA C.C. art. 1785, LSA C.C. art. 1875, LSA C.C. art. 2228. We must, therefore, determine if under the facts of this case plaintiff impliedly ratified the Act of Sale subsequent to her attaining majority.
For an implied ratification under LSA C.C. art. 2272, it must be shown that plaintiff voluntarily executed the obligation subsequently to the period at which the obligation could have been validly ratified. This court is of the opinion that voluntary execution means performing acts consistent with the principal obligation of such a nature so as to manifest plaintiff's intention to fulfill the obligation. Additionally, "(t)he intention to ratify a notarial act not binding on a party must be clearly and unequivocally shown whether it is validated by a formal instrument or by its voluntary execution; such contention cannot be inferred." James v. James, 393 So. 2d 162, 165 (La.App. 1st Cir.1980).
The testimony in reference to the negotiations leading to this sale is contradicted. Plaintiff and her brother inherited their interests in the property from their father. Defendant Norman Sanchez, plaintiff's cousin and godfather, had apparently expressed an interest over the years in wanting to buy plaintiff's and her brother's interests if they ever wanted to sell. Plaintiff denied under oath that she and her brother were going to sell their interests to an oil company for $2,000.00 prior to defendants' offer of $3,000.00. Plaintiff's brother, as well as defendant Norman Sanchez, testified in direct contradiction to plaintiff regarding the deal with the oil company.
The Act of Cash Sale was passed on February 15, 1979, the day before plaintiff's eighteenth birthday. Mr. Sanchez had spoken to plaintiff's mother regarding the sale, and was informed by her that plaintiff was of age and would have to make her own decisions. The Act of Sale contained no reservation of any mineral rights and the land was under lease for plaintiff had previously received some small royalty payments.
Some eleven (11) days after reaching majority, plaintiff was asked to, and did in fact sign, a Royalty Gas Transfer Order acknowledging the sale of her royalty interest to defendants. More than three years later, when plaintiff was twenty-one *1012 years old, she again was asked to and did sign a division order acknowledging the transfer of her interests to defendants. Plaintiff's testimony concerning her intentions in signing these two orders is at best confusing. However, from her testimony we are able to determine that plaintiff signed the orders with full knowledge that the effect would be to allow defendants to receive their royalty payments. Plaintiff alleges that she signed the documents under the belief that to do so would entitle her to past due royalty payments. The trial court noted that it believed plaintiff's assertion, but went on to note that it firmly believed that plaintiff would have willingly executed a formal act of ratification as well. We are of the opinion that plaintiff clearly and unequivocally impliedly ratified the sale after reaching majority.
We are aware of the important policy of this state to protect minors from their imprudent engagements. However, in view of the fact that plaintiff was a matter of hours away from reaching majority at the time of sale, and then, subsequent to coming of age, performed acts consistent with her obligation to transfer her complete interest in the property, we are of the opinion that to rescind this sale would offend justice. Our finding renders moot the question of defendants retention of royalties received from the time of the sale.
Therefore, for the foregoing reasons, that portion of the judgment rescinding the sale is hereby reversed and that portion of the judgment allowing defendants to retain royalties received since the time of the sale is hereby affirmed. Costs are taxed to plaintiff-appellant.
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.
NOTES
[1] Since this action was instituted, Title IV of Book III of the Louisiana Civil Code of 1870, Of Conventional Obligation, consisting of Articles 1761-2291, was revised, amended and reenacted by Acts 1984, No. 331 § 1, effective January 1, 1985. Given that this action arose prior to the effective date of the 1984 amendment, it is controlled by the law as written prior to January 1, 1985. References will, therefore, be to the applicable code articles as they appeared prior to the 1984 amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626230/ | 345 S.W.2d 569 (1961)
MISSOURI PACIFIC RAILROAD COMPANY, Appellant,
v.
Steve GOODSON, Appellee.
No. 13735.
Court of Civil Appeals of Texas, San Antonio.
April 12, 1961.
Rehearing Denied May 3, 1961.
*570 Houchins, Anderson, Smith & Null, Victoria, for appellant.
Helm, Jones, McDermott & Pletcher, Houston, Arthur M. Green, Victoria, for appellee.
*571 BARROW, Justice.
This suit is by Steve Goodson, appellee, against the Missouri Pacific Railroad Company, appellant, to recover damages for personal injuries alleged to have been caused when a string of cars was "kicked" against a number of box cars where appellee was coupling air hoses. The suit was brought under the terms and provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51. The trial was to a jury. The parties stipulated that $1,036 represented reasonable medical expenses for the treatment of appellee on account of injuries suffered. The jury found in favor of appellee and fixed his damages for personal injuries at $85,000. The trial court entered judgment against appellant in the sum of $86,036. This appeal is from that judgment.
Appellant seeks a reversal of the judgment upon four points, which will be considered separately in order.
By its first point, appellant contends that a new trial should be granted "because the trial court erred in admitting opinion evidence over the objections of the appellant." This accident occurred in appellant's switching yard at Bloomington, Texas, during switching operations making up a train. Appellee, a brakeman, was coupling the air hoses between two stationary cars when appellant's train crew kicked out a string of loose unattended cars, which bumped into the cars where appellee was working, causing them to move. Appellee was knocked down and a car wheel ran over his right leg, injuring and mangling it to the extent that it had to be amputated. It is appellant's contention that the court erred in permitting the witness Munlin, the locomotive engineer, to testify that "it is not proper to kick some cars against (a) cut" of box cars when a man is coupling the air hoses between them; and that if a man "knows the air is being coupled, it is improper to give a signal to kick cars against" the cars being coupled. That appellee should not have been coupling these cars without notifying the conductor, and that in fact he should have notified the witness. Appellant also contends that the court erred in permitting the witness Parker, the conductor, to testify:
"Q. So there would be nothing improper about Steve starting to follow the cut of cars and working back towards the crossing? A. No. In this instance it was the only logical thing to do, because he had to go back to the crossing anyway."
Appellant objected to this testimony on the grounds that the witnesses were stating opinions; that the matters stated were matters of common knowledge, not the subject of expert opinion; that they "cumbered" the proceedings and were prejudicial.
The record shows that the switching operation was under the direction of Parker, the conductor, under whose direction appellee was coupling the cars. That it was appellee's job to do that, and that Parker knew appellee was doing so. It was Parker who gave the signal to the engineer to cut out the cars and kick them against the other cars. He knew that in order to couple the air hoses appellee would have to go between the cars, and he knew the railroad policy, that it was dangerous to move cars when people are working around, under, or between them. There was much testimony, without objection, regarding the proper methods of switching, coupling and moving cars, and regarding safety during such operation. Thus the issue is of primary negligence.
It has been repeatedly and consistently held by the Courts of this State that the usual, customary and proper methods of handling the operation of railroad trains and switching operations such as involved in this case, are not matters with which ordinary jurors are sufficiently familiar to pass upon, and are the subject of testimony by witnesses who are shown to be qualified as experts. McCray v. *572 Galveston, Harrisburg & San Antonio R. Co., 89 Tex. 168, 34 S.W. 95; Houston & T. C. R. Co. v. Cowser, 57 Tex. 293; Houston Belt & Terminal R. Co. v. Stephens, 109 Tex. 185, 203 S.W. 41; Galveston, H. & S. A. R. Co. v. Sample, Tex.Civ.App., 145 S.W. 1057; Galveston, H. & S. A. R. Co. v. Grenig, Tex.Civ.App., 142 S.W. 135; Missouri K. & T. R. Co. of Texas v. Williams, 56 Tex. Civ. App. 246, 120 S.W. 553; Galveston, H. & S. A. R. Co. v. Mitchell, 48 Tex. Civ. App. 381, 107 S.W. 374; International & G. N. R. Co. v. Collins, 33 Tex. Civ. App. 58, 75 S.W. 814; Galveston, H. & S. A. R. Co. v. Hughes, 22 Tex.Civ. App. 134, 54 S.W. 264; Galveston, H. & S. A. R. Co. v. Ford, 22 Tex. Civ. App. 131, 54 S.W. 37. It appears from the evidence that the witnesses Munlin and Parker are railroad men who have had many years of experience in the matters about which they testified. We think the testimony objected to was the subject of expert testimony, and that the witnesses were qualified as experts.
Appellant's second point complains that the argument of appellee's counsel to the jury "was reasonably calculated to advise and probably did advise the jury of the effect of their answers to the special issues submitted." We overrule the point. We have carefully considered all of the argument of which appellant complains and have found nothing improper. To set out all the argument which appellant contends is objectionable would unduly lengthen this opinion. In substance, the argument requested the jury to answer the first nine issues "we do", the next ten issues, "we do not", and Issue No. 20, "It was not the result of an unavoidable accident." Complaint is also made of counsel's argument on the unavoidable accident issue. We find nothing improper in the argument. Counsel simply explained the issue and the instruction in connection therewith. It is well settled that counsel may in argument suggest how special issues should be answered, and may even "urge and beg" the jury to so answer them, provided the argument does not inform the jury of the effect the answers will have upon the judgment to be rendered. Texas & N. O. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160; Dallas Ry. & Terminal Co. v. Bankston, Tex.Com.App., 51 S.W.2d 304. We are also of the opinion that the argument complained of is the type of argument which, if harmful, could be cured by an instruction from the trial court. Younger Bros. Inc. v. Myers, Tex.Sup., 324 S.W.2d 546; Household Furniture Co. v. Storrie, Tex. Civ.App., 292 S.W. 612. The record shows that no timely objection was made, nor was any timely request made for an instruction from the court. The complaint was made for the first time on motion for new trial. Moreover, from an examination of the entire record, we have reached the conclusion that appellant suffered no harm by such argument. Rule 434, Texas Rules of Civil Procedure.
Appellant's third point seeks a reversal on account of alleged jury misconduct, in that it is contended the jury rendered a quotient verdict. The point is overruled. Only three of the jurors testified on motion for new trial. These jurors all testified there was no agreement to be bound by the result of a quotient. It was suggested that an average be taken "as a starting point to argue from, to see what the average would come to;" that there was no agreement to be bound by the result; that the quotient or average came to $82,000 and some odd dollars; that thereafter the argument between the jurors lasted some thirty minutes. Appellant relies strongly on the testimony of Jake Herzberger, the juror who testified that by averaging the various sums, it was thought they could come to some agreement, and that thereafter the jury "gradually" agreed to the figure of $85,000. In order to warrant a reversal on account of a quotient verdict there must be an antecedent agreement to be bound by the quotient. Page v. Lockley, Tex.Civ.App., 176 S.W.2d 991, reversed on other grounds, 142 Tex. 594, 180 S.W.2d 616. The evidence of the *573 jurors on motion for new trial justifies the conclusion that there was no agreement to be bound by the results. Page v. Lockley, supra.
By its fourth point appellant complains that the "Court erred in refusing to grant a new trial as the damages allowed by the jury are manifestly excessive under the evidence." The award of $85,000 damages was for the lost earnings, diminished capacity for work, for past and future physical pain and suffering, and past and future mental anguish. At the time of the accident Steve Goodson was fifty-four years old and had been working for appellant for more than thirty-two years. He had only a low seventh grade education. It was stipulated by the parties that he had a life expectancy of eighteen and one-half years, and a work-life expectancy of eleven years. It was also stipulated that money may be safely and securely lent at the rate of 6% per annum. His earnings steadily increased from $5,581.34 in 1953, to $7,656.13 in 1957, however, in 1958, for some unknown reason, his earnings dropped to $7,345.28. As the result of the occurrence of April 27, 1959, out of which this suit arose, Steve Goodson was caused to fall between the rails, with his left leg inside the rail. His right leg was mangled and had to be amputated. His right shoulder was injured. The ligaments were torn loose, and he did not have much use of his right shoulder, and his right arm was weakened. He walked with crutches and his shoulder gave way at times, with the result that he would fall. He fell and hurt his left knee and it was six months before the wound on his knee would heal. He had undergone three operations on his right leg. The third operation was performed on December 4, 1959, and the remaining stump was only six inches from his groin. He could not stand pressure on the stump. He could sleep only on his back and/or left side and did not sleep too well. He was unable to help his wife around the house, and it was difficult for him to take a bath. He is never completely free of pain. He felt pain and some itching in his lost leg. Immediately following the receipt of his injuries he was confined in the hospital in Victoria for thirty-two days, and then, for about a month, in a hospital at Kingsville, from which he was released on July 5, 1959. He was in bed, in the hospital and at home, for more than two months in connection with the December, 1959, operation on his leg. He still has weakness and pain in his left knee. He had been unable to work since he was injured.
The Rule in this State has been stated in 13 (Rev.) Tex.Jur. 271, § 151, Damages, as follows:
"It is a well settled general rule that where the law furnishes no legal measure of damages, and they are unliquidated, the amount to be awarded rests largely in the discretion of the jury; and unless the award is so large as to indicate that it is the result of passion, prejudice or corruption, or that the evidence has been disregarded, their verdict is conclusive and will not be set aside as excessive, either by the trial court or on appeal."
This text is supported by an unbroken line of decisions. We have found nothing in the verdict itself, or elsewhere in the record to indicate that the jury in this case was guided by any motive other than a calm deliberation and conscientious consideration of the evidence and the charge of the court. Appellant's fourth point is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626252/ | 464 So. 2d 516 (1985)
Randy Avery BROWN
v.
STATE of Mississippi.
No. 54872.
Supreme Court of Mississippi.
February 20, 1985.
*517 Kenneth C. O'Neal, Grenada, for appellant.
Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
En Banc.
ON PETITION FOR REHEARING
DAN M. LEE, Justice, for the Court:
In this appeal we are asked to decide to what extent a criminal defendant is allowed to present evidence corroborating his testimony as to his state of mind at the time he allegedly committed an aggravated assault and where his sole defense is that of self defense. The original opinion in this case (decided without dissent) was the subject of a Petition For Rehearing filed by the State. While we deny the State's petition, we nonetheless withdraw our original decision and substitute this one in its stead.
On March 3, 1982, Connie Liddell was sitting in his car in the parking lot of the Golden Star, a nightclub. Beside the Golden Star was a laundromat and a hair salon. Directly across the road was a playground. As Liddell sat in his car, Brown crossed the street from the direction of the playground. When Liddell saw Brown coming he got out of his car and the two approached each other. Liddell stated "We got to talking and we argued and stood up in each other's faces and was talking." Liddell stated that the argument was about "past things going on." Apparently the "past things going on" was a personal feud between the two of them that had lasted for close to a year. This feud apparently stemmed from an argument that Brown had with Liddell's uncle. Liddell stated that he tried to get Brown to go behind a building and fight but "The next I knew he shoved me off and come up shooting."
Liddell testified that after he was shot he ran behind his car and then chased Brown down an alley between the beauty salon and the Golden Star. Liddell claims to have then quit the chase and gone home. On cross-examination Liddell stated that the reason that he, an unarmed man, chased Brown, an armed man, was because "I wanted him that bad." Liddell admitted that Brown did not say anything to him before Liddell got out of his car and approached him. Liddell stated "When I got close to him I asked if he was ready to have his ass beaten." This was before Brown had said anything to Liddell. Liddell stated that he had not tried to start a *518 fight but that "It was only words." Liddell denied ever having previously threatened Brown or passing any threats on to him through Brown's sisters. Liddell also denied ever exhibiting a gun to Brown.
Brown took the stand in his own defense and testified that he pushed Liddell only after Liddell kicked him. He stated that he pulled his gun because of prior threats and gun play Liddell made against him. Brown then detailed a number of incidents in which he claimed Liddell had threatened him. The first of these confrontations was at a car wash where the two saw each other. Brown stated that Liddell went to the back of his car, opened his trunk and pulled out a pistol and displayed it to him in a threatening manner. The second such incident occurred when Brown was coming out of a store and Liddell rode by. Liddell stopped his car and told Brown he wanted to whip him. With that Liddell went to the car trunk, pulled a gun out and Brown left. Brown stated that on another occasion he was at the playground across the street from the Golden Star with his brother. Liddell came over and started shadow boxing in front of the car with a gun stuck in the back of his pants. Brown also testified that he had been told by his sisters that Liddell came in the laundromat when they were there with a stick in his hand threatening to whip Brown. Brown's brother and sisters corroborated his testimony regarding the prior threats.
At trial, the circuit judge refused to allow Brown to testify that only two weeks earlier he had sought legal assistance because of his fear of Liddell. Brown was not allowed to testify that he had called the police for assistance after being threatened by Liddell because the trial court concluded it was "self serving." This was the only objection sustained on the "self serving" ground.
Brown was prohibited from testifying that he had seen the city prosecutor for assistance because of his fears of Liddell on the ground that it was irrelevant. The trial court additionally prohibited Brown from introducing the testimony of the city prosecutor, Allan Purdie. On proffer, offered expressly to establish Brown's state of mind, Purdie's testimony was that Brown had come to him only two weeks before the shooting seeking some kind of legal protection from Liddell's harassments and threats. Purdie explained to Brown that he had a right to defend himself. The trial court sustained the state's objections to this evidence on the grounds that it was "irrelevant," and "unreasonable."
It is important to remember that the only defense asserted by Brown was that of self defense. Because the key to the defense of self defense is the defendant's state of mind at the time of the incident and, because a defendant's testimony is often viewed with great suspicion, corroboration as to the defendant's state of mind is critical. Common sense and any lawyer who has defended a case of this nature will tell you that this is undeniably true. Brown's action in attempting to prevent any further trouble with Liddell by seeking the assistance of law enforcement officers is highly relevant to his state of mind leading up to the shooting. Since it is the jury's role to pass on the reasonableness of Brown's actions, they are entitled to be made fully aware of all relevant facts which reflect apprehension, fear or anxiety in his state of mind. Because such apprehension, fear or anxiety is a crucial element of self defense, the exclusion of this testimony had the effect of "whittling down" Brown's defense. Eaton v. State, 200 Miss. 729, 28 So. 2d 230 (1946).
Very recently, in Jackson v. State, 426 So. 2d 405 (Miss. 1983), we wrote on whether a defendant may be allowed to introduce evidence of prior actions on the part of the victim which amount to harassments, threats and assaults directed toward the defendant. Jackson was being tried for the murder of her estranged lover. She claimed that the killing was in self defense. During the trial she attempted to introduce justice court records regarding convictions of the victim as the result of complaints made by her. The circuit court refused to allow those records to be admitted into *519 evidence, although it did permit testimony as to the reputation of the deceased for peace and violence and for carrying firearms. On appeal we reversed the refusal of the trial court to allow the justice court records to be admitted into evidence. On that point we held:
Under the undisputed evidence in this case, it is our opinion that much flexibility should have been given appellant in presenting prior harassments, threats and assaults directed toward her. Such evidence is material on the motives of both appellant and deceased in presenting the incidents that occurred in front of the store. The attitude, relationship and feelings of the accused and the deceased toward each other are material. Harley v. State, 345 So. 2d 1048 (Miss. 1977); Rucker v. State, 248 Miss. 65, 158 So. 2d 39 (1963); Clark v. State, 123 Miss. 147, 85 So. 188 (1920); Brown v. State, 88 Miss. 166, 40 So. 737 (1906); Guice v. State, 60 Miss. 714 (1883); and Josephine v. State, 39 Miss. 613 (1861).
426 So.2d at 408.
In an earlier case, Lee v. State, 160 Miss. 618, 134 So. 185 (1931), Lee appealed his conviction for the murder of Lanier. Under facts very similar to those now at bar, the sheriff was put on the witness stand to testify as to whether Lee had appealed to him for help after he had been assaulted by Lanier on a public road. The circuit court sustained an objection to this testimony and we reversed. In Justice Ethridge's words:
We think also the condition of the appellant's mind, at the time of the fatal shooting is important in the case at bar in determining whether the killing was malicious and willful, or with malice aforethought, or whether justifiable, and, if not, justifiable, was done under a mistaken belief, honestly and entertained, as bearing on the question of possible manslaughter. If the previous conduct of the deceased was, as testified to by Lee, hostile, it would constitute a situation highly provocative in its nature, and such conduct, on repetition, was calculated to highly exasperate and inflame the mind of an ordinarily reasonable man. It is well known that there is a marked difference between the effect of an act when accompanied by previous provocation and one not so accompanied. Men, at best, are fallible and frail beings, and, where there is a persistent effort to provoke a difficulty by one person against another, the mind reacts with violence, although it is the mind of an ordinarily prudent and reasonable man. (Emphasis added).
160 Miss. at 639, 640, 134 So. at 192.
This Court spoke again to relevancy of such testimony in Rucker v. State, 248 Miss. 65, 158 So. 2d 39 (Miss. 1963) wherein Presiding Justice Percy M. Lee said:
Thus the trial judge held that such alleged conduct of Judge Phillips was not admissible because it was too remote and also because the assault, for which the defendant was then being tried, was committed upon Johnson, a mere bystander. That ruling of the court completely ignored the defendant's whole theory, namely, that Judge Phillips was the one who precipitated the trouble, incited his relatives to inflict great bodily harm upon the defendant, and aided and abetted them in their unmerciful and unlawful attack upon him. Besides, the ruling shut the defendant off from explaining that he got the pistol out of fear engendered by the threats of Phillips and had hidden it under the gallery or porch steps solely for his own self-defense in case Judge Phillips should attempt to carry out his previous threats.
In the case of Brown v. State, 88 Miss. 166, 40 So. 737, this Court, following the case of Guice v. The State, 60 Miss. 714, stated that there is a "principle of law, well settled in this state, that wherever there is doubt, confusion, dispute, or conflict as to the origin of the difficulty, or as to who was the aggressor in the difficulty, which resulted in the death, and when such fact is the pivotal one in the case, testimony of uncommunicated threats, and the nature and *520 character of previous difficulties, wantonly provoked by the deceased, is always admissible, provided the testimony shows some overt act on the part of the deceased at the time of the fatal encounter." The opinion also contained an admonition on the part of trial courts not to whittle away the rights of defendants upon trial for their lives. It further pointed out that "Every ruling should resolve any doubt in favor of the accused."
* * * * * *
The law furnishes no test of relevancy. Unless settled by statute or controlling precedent, relevancy is to be determined by logic, being the application of the principles of reason, judgment, and systematic arrangement to the matter in hand. All facts which tend either to sustain or to impeach a logically pertinent hypothesis are admissible.
* * * * * *
A pivotal fact in this case was to determine the aggressor. Consequently testimony concerning the nature and previous threats by, and difficulties with, Judge Phillips, which, the defendant asserts that Phillips wantonly provoked, was material to show the state of mind of the parties. Besides, the defendant's version as to how he came to own the pistol, if believed, negatived the element of malice and would, if believed, have been of substantial value in his defense. This evidence was important to the defense of this case, and, even if a rather close question, should have been admitted. Under all of the circumstances, it cannot be said that its exclusion was not harmful.
248 Miss. at 70-72, 158 So.2d at 41, 42.
It must be remembered that the trial judge sustained the State's objection to Purdie's testimony solely on the grounds of relevancy and "unreasonableness" and not as a self serving declaration. We cannot sanction the withholding of evidence from the jury which is highly probative of the defendant's state of mind or allow the trial judge to determine the reasonableness of the testimony. Such a holding would be completely foreign to the jurisprudence of our state and nation. Only the jury is vested with the role of determining the reasonableness of the testimony presented in a criminal prosecution. See Groseclose v. State, 440 So. 2d 297 (Miss. 1983); Pate v. State, 419 So. 2d 1324 (Miss. 1982); Sparks v. State, 412 So. 2d 754 (Miss. 1982); Whittington v. State, 377 So. 2d 927 (Miss. 1979) and literally hundreds of others.
With Purdie's testimony the jury could have concluded that Brown had taken every step a reasonable man would have taken when placed in his position. The evidence that Brown's resort to official channels of public protection and the outcome of his request for assistance is relevant not only to his state of mind at the time of the shooting but also to his reasons for being armed at the time of the confrontation.
The exclusion of Purdie's testimony was clearly erroneous. Purdie was asked to relate in a narrative form, the circumstances of Brown's appeal to him. Even if Brown's testimony about calling the police was self serving, Purdie's testimony cannot be so classified. Purdie was not an interested party and a narrative description by him of events occurring in his office cannot logically be termed self serving. The weight to be assigned to those events is a matter strictly within the jury's province.
We remain committed to the proposition that an individual on trial for his life or liberty who asserts the defense of self defense is entitled to present all relevant evidence of their state of mind at the time of the alleged incident particularly where as here, the "victim" was available to, and did in fact, testify. Considered and impartial deliberation upon only part of the evidence is simply not sufficient. If we view the trial process as a search for justice and justice as truth, this conclusion is inescapable.
Based on all of the foregoing, we hereby reverse Brown's conviction and sentence and remand this case to the Circuit Court of Grenada County for further proceedings *521 consistent with this opinion. Our original opinion in this case is withdrawn and this one is substituted in its place. The Petition For Rehearing is denied.
REVERSED AND REMANDED.
PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, J., dissent.
WALKER, Presiding Justice, dissenting:
I respectfully dissent. The majority ignores well-established case law directly on point in reaching their conclusion.
The facts as presented in the original opinion are as follows:
This is an appeal from the Circuit Court of Grenada County wherein the appellant, Randy Avery Brown, was found guilty of the aggravated assault of Connie Liddell. Brown was sentenced to serve four years in the custody of the Mississippi Department of Corrections. From that conviction and sentence he brings this appeal and assigns as error the refusal of the trial court to allow the jury to hear testimony that prior to the shooting Brown had sought legal assistance from law enforcement officials because of threats made against him by Liddell.
On March 3, 1982, Connie Liddell was sitting in his car in the parking lot of the Golden Star, a nightclub. Beside the Golden Star was a laundromat and a hair salon. Directly across the road was a playground. As Liddell sat in his car, Brown crossed the street from the direction of the playground. When Liddell saw Brown coming he got out of his car and the two approached each other. Liddell stated "We got to talking and we argued and stood up in each other's faces and was talking." Liddell stated that the argument was about "past things going on." Apparently the "past things going on" was a personal feud between the two of them that had lasted for close to a year. This feud apparently stemmed from an argument that Brown had with Liddell's uncle. Liddell stated that he tried to get Brown to go behind a building and fight but "The next I knew he shoved me off and come up shooting."
Liddell testified that after he was shot he ran behind his car and then chased Brown down an alley between the beauty salon and the Golden Star. Liddell claims to have then quit the chase and gone home. On cross-examination Liddell stated that the reason that he, an unarmed man, chased Brown, an armed man, was because "I wanted him that bad." Liddell admitted that Brown did not say anything to him before Liddell got out of his car and approached him. Liddell stated "When I got close to him I asked if he was ready to have his ass beaten." This was before Brown had said anything to Liddell. Liddell stated that he had not tried to start a fight but that "It was only words." Liddell denied ever having previously threatened Brown or passing any threats on to him through Brown's sisters. Liddell also denied ever exhibiting a gun to Brown.
Brown took the stand in his own defense and testified that he pushed Liddell only after Liddell kicked him. He stated that he pulled his gun because of prior threats and gun play Liddell made against him. Brown then detailed a number of incidents in which he claimed Liddell had threatened him. The first of these confrontations was at a car wash where the two saw each other. Brown stated that Liddell went to the back of his car, opened his trunk and pulled out a pistol and displayed it to him in a threatening manner. The second such incident occurred when Brown was coming out of a store and Liddell rode by. Liddell stopped his car and told Brown he wanted to whip him. With that Liddell went to the car trunk, pulled a gun out and Brown left. Brown stated that on another occasion he was at the playground across the street from the Golden Star with his brother. Liddell came over and started shadow boxing in front of the car with a gun stuck in the back of his pants. Brown also testified that he had been told by his sisters that Liddell came in the laundromat when they were there with a stick in his hand threatening *522 to whip Brown. Brown's brother and sisters corroborated his testimony regarding the prior threats.
The issue in this appeal concerns two attempts Brown made to introduce evidence that he had previously sought legal assistance because of his fear of Liddell. The first of these rulings came when Brown attempted to testify that he had called the police after being threatened by Liddell. Brown didn't know who he had talked to on the police force but, on a proffer, testified that the policeman advised him to get a peace bond from a justice of the peace. Brown stated that he didn't do this because he didn't have the requisite $50. Brown also proffered testimony to the effect that he had seen Mr. Purdie, City Prosecutor, for advice on the matter. The court refused to allow this testimony.
The second occurrence at which the trial court refused to allow testimony of this nature was when the defense offered Allan Purdie, City Prosecutor, as a witness. The court ruled that Purdie could not testify regarding Brown's request for assistance from him. On a proffer, Purdie stated that Brown had come to him about two weeks before the shooting and expressed concern over trouble he had been having with Connie Liddell. Purdie testified that Brown told him Liddell had been harassing him and threatening to whip him every time he saw him.
This same issue has been addressed by this Court in at least three previous cases.
In Brice v. State, 167 Miss. 255, 148 So. 348 (1933) the appellant was convicted of manslaughter in the stabbing death of Nelson Magee. Appellant claimed that he stabbed Magee in self-defense and that Magee was the aggressor. Brice offered to show that before the homicide he had appealed to the county and city police for protection from the deceased's threatened violence. The trial court refused to allow the proposed evidence. This Court agreed with the action of the lower court and stated:
The general rule is that a defendant's previous expressions of fear of the deceased, and his desire to avoid a difficulty with him, are not admissible in his behalf, unless part of the res gestae, and the defendant's previous efforts to induce a third person to effect a reconciliation between himself and the deceased or an amicable settlement of their difficulties are not admissible in his behalf. Such declarations on the part of the defendant are self-serving; if admitted in the evidence in his behalf, there would be great inducement on his part to fabricate a defense. 16 C.J., pp. 635, 636, sec. 1265; 6 Ency.Evi. pp. 763, 764. The appellate court of Alabama in Bowling v. State, 18 Ala.App. 231, 90 So. 33, 34, said: "It was not permissible for the defendant to show, after the deceased had threatened him, that he (defendant) asked the chief of police for protection. This was nothing short of a self-serving declaration on the part of the defendant; neither was it material or competent for him to show that he went to see the chief of police."
167 Miss. 260, 148 So. 348.
In Eaton v. State, 200 Miss. 729, 28 So. 2d 230 (1946) this Court in a murder prosecution ruled that it was error to exclude evidence which tended to support appellant's argument that he acted in self-defense. The Court, however, found no error in excluding evidence offered of appeals made by appellant to the sheriff and mayor for protection of the law. This evidence was "incompetent" and properly excluded.
In view of the cases cited above, I am of the opinion that there was no error committed by the lower court and the judgment and conviction should be affirmed.
PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, J., join this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626256/ | 464 So. 2d 1218 (1984)
Amy WILLIAMS, Appellant,
v.
STATE of Florida, Appellee.
No. AW-359.
District Court of Appeal of Florida, First District.
December 20, 1984.
Rehearing or Clarification Denied March 15, 1985.
*1219 Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., for appellee.
NIMMONS, Judge.
Upon the defendant's plea of guilty to unarmed robbery, the trial court adjudged the defendant guilty, stayed and withheld the imposition of sentence and placed the defendant in "community control" for two years. The court also imposed a term of six years probation consecutive to the community control. The defendant contends that community control and probation are alternative forms of disposition and may not be imposed in tandem. We agree with that contention. We also reject without further comment the state's objection to the appealability of this error.
It is apparent to us that the legislative intent, in adopting the concept of "community control" in the Correctional Reform Act of 1983" (Chapter 83-131, Laws of Florida) was to provide an alternative to probation and incarceration. Among the legislative findings in the Correctional Reform Act were:
(2) State government can no longer afford an uncritical and continuing escalation in capital outlay for prison construction at the expense of other competing social and economic priorities.
(3) The effectiveness of incarceration of offenders as a means to reduce the likelihood that they will become useful members of society, thereby reducing the threat of crime in our society, varies among individuals and types of offenders and is not conclusively positive.
(4) The increased use of noncustodial alternatives and nonprison custodial alternatives can alleviate prison overcrowding while still providing a sufficient measure of public safety and assuring an element of punishment.
Chapter 83-131, Section 2; see also Section 948.10(1), Florida Statutes (1983). The Act, among other things, created Section 921.187, Florida Statutes, which provides for alternative forms of disposition and sentencing. Among the permissible alternatives set forth in that section are:
(1) Place an offender on probation with or without an adjudication of guilt pursuant to s. 948.01.
* * * * * *
(3) Place a felony offender into community control requiring intensive supervision and surveillance pursuant to chapter 948.
* * * * * *
(7) Impose a split sentence whereby the offender is to be placed on probation upon completion of any specified period of such sentence, which period may include a term of years or less.
The Act further defined the terms "community control" and "probation" and are set forth in Section 948.001, Florida Statutes (1983).[1]
*1220 The Act also added subsection 4 to Section 948.01 to provide for the circumstances under which the court may place the defendant in community control:
(4) If, after considering the provisions of subsection (3) and the offender's prior record or the seriousness of the offense, it appears to the court in the case of a felony disposition that probation is an unsuitable dispositional alternative to imprisonment, the court may place the offender in a community control program... .
That subsection also allows the court, with respect to previously committed offenders, to suspend further execution of the commitment and place the offender in community control. See also Section 948.01(3). Further, where the offender has completed "the sanctions" imposed in the community control plan before the expiration of the term previously ordered by the court, the court may grant an early discharge of the offender or transfer the defendant to probation supervision. See Section 948.01(7). We also note that where a probationer has violated the conditions of probation, the court may, instead of revoking probation, place him in community control. See Section 948.06.
The state contends that the subject disposition qualifies as a "split sentence" under Section 921.187(7) which is quoted above. We cannot agree. That section permits the court to impose a sentence such that, upon completion of any specified portion of the sentence, the offender is placed on probation. Section 948.01(8) also provides the same kind of split sentence but provides that the probationary part of the split sentence may instead be community control. Under either statute, however, we hold that the "front end" of the split sentence contemplates a sentence of incarceration and that the kind of disposition imposed in this case is not authorized thereunder.
We have also examined this disposition to determine whether it could somehow be justified as a probationary term with community control as a special condition of that probation. In the first place, that is not what the trial judge did. He imposed a two-year term of community control and he also imposed a six-year term of probation consecutive to the former. Secondly, such a construction would result in the mongrelization of the dispositional alternatives of community control and probation. We believe this would be manifestly contrary to the legislative intent as to the proper purpose and application of these alternative dispositions.
We therefore reverse and remand with directions that the trial court vacate and set aside the order imposing the consecutive probationary term.[2]
We have examined the remaining point urged by the defendant regarding imposition of costs and find the same to be without merit.
Reversed and remanded.
SHIVERS and WENTWORTH, JJ., concur.
ON MOTION FOR REHEARING OR CLARIFICATION
NIMMONS, Judge.
We deny the state's motion for rehearing or clarification except with respect to the proper disposition on remand. Consistent *1221 with the Supreme Court's holding in Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla. 1981), the trial court will be permitted to select from several alternative dispositions.
If the trial court wishes to adhere to its community control disposition, the court will simply vacate and set aside the consecutive probationary term. The court will not have the option of increasing the two year community control term in view of the statutory two-year maximum on community control provided for in Section 948.01(5), Florida Statutes (1983).
If, on the other hand, the court wishes to adhere to the probation portion of the disposition, the court will vacate the community control term. The court may then either leave the six-year probationary term intact or increase such probationary term by no more than an additional two years, the period of time represented by the vacated community control term.
Alternatively, the court may vacate both the community control and probationary terms and, pursuant to Sections 948.01(1) and 921.187(7), Florida Statutes (1983), impose a lawful split sentence involving a period of incarceration followed by either probation or community control. However, the total period of the incarceration plus either the period of probation or the period of community control may not exceed eight years, the total of the original disposition.
Finally, the court may vacate the community control and probationary terms and impose a straight period of incarceration up to a term of eight years, the total of the original disposition. See Villery, supra at 1112.
Whatever sentencing disposition the trial court may make on remand must, of course, be in compliance with the sentencing guidelines and if any sentence exceeds such guidelines, clear and convincing reasons therefor will be required in accordance with Fla.R.Cr.P. 3.701(d)(11). See also committee note to Fla.R.Cr.P. 3.701(d)(12).
Except as set forth herein, the state's motion for rehearing or clarification is denied.
SHIVERS and WENTWORTH, JJ., concur.
NOTES
[1] 948.001 Definitions. As used in this chapter, the term:
(1) "Community control" means a form of intensive, supervised custody in the community, including surveillance on weekends and holidays, administered by officers with restricted caseloads. Community control is an individualized program in which the freedom of an offender is restricted within the community, home, or noninstitutional residential placement and specific sanctions are imposed and enforced.
(2) "Probation" means a form of community supervision requiring specified contacts with parole and probation officers and other terms and conditions as provided in s. 948.03.
[2] Since, as we have held, it was improper for the trial court to impose a probationary term consecutive to the community control term, we do not address the additional argument asserted by the defendant that the sentencing guidelines recommendation of twelve to thirty months incarceration was exceeded by the two terms imposed by the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626266/ | 464 So. 2d 684 (1985)
STATE of Florida, Appellant,
v.
Louise RICE, Appellee.
No. 84-744.
District Court of Appeal of Florida, Fifth District.
March 7, 1985.
*685 Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellee.
ORFINGER, Judge.
The trial court departed from the recommended guidelines sentence by reducing the period of incarceration, and the State appeals.[1] We affirm.
The appellee was charged by information filed October 18, 1983 with second degree murder and carrying a concealed firearm. She filed a plea of nolo contendere to the charge of second degree murder and the State nolle prossed the charge of carrying a concealed firearm. The record indicates that the victim, Donald Atkins, was shot following an argument with appellee in which appellee accused Atkins' girl friend of stealing money from her. The recommended guidelines sentence was 7-12 years incarceration based on the scoresheet total of 157 points.[2] Appellee was sentenced to *686 5 and 1/2 years imprisonment to be followed by 1 and 1/2 years of probation. The judge stated that he was departing from the guidelines sentence because appellee had no prior criminal record and was 56 years of age.
The State does not argue the power of the trial court to depart from a presumptive sentence by reducing it, but contends only that the sentence imposed is a split sentence and that it therefore violates Committee Note (d)(12) to Florida Rule of Criminal Procedure 3.701 because the incarcerative portion of the sentence is less than the minimum of the guideline range. At the time of sentencing, Committee Note (d)(12) read as follows:[3]
The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range. (Emphasis added).
The transcript of the sentencing hearing and the notation on the scoresheet clearly indicates that this was a departure sentence. Under the above-mentioned version of paragraph (d)(12) this court has previously approved a departure sentence where the combined period of incarceration and probation exceeded the guideline sentence. MacFarland v. State, 462 So. 2d 496 (Fla. 5th DCA 1984). Given a proper case for departure, there is no reason for a different result where the departure is in the nature of a reduction of sentence rather than an enhancement. In other words, note (d)(12) does not control where the judge properly departs from the guidelines.
This leads, then, to a consideration of the propriety of a departure here. Departures from guideline sentences are contemplated by Rule 3.701(d)(11), Florida Rules of Criminal Procedure, which provides:
Departures from the guideline sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.
Clearly then, the trial court may depart upward or downward from a presumptive sentence when clear and convincing reasons are stated.
Here, the trial court enunciated that the appellee's age, coupled with her complete lack of criminal background, were sufficient reasons for mitigating her sentence. In Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984) this court stated that the appellant's prior criminal record is a clear and convincing reason for departure. Although the Hendrix court was referring to the criminal record as a basis for an enhancement of the recommended sentence, the complete absence of a prior criminal record may similarly be considered as a basis for mitigation of the guidelines sentence.
*687 The standard of appellate review in cases where a sentence departs from the guidelines is abuse of discretion. Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984). In Higgs, we noted:
If, as this rule indicates, judicial discretion still plays a part in the sentencing process, an appellate court should not reverse a sentence which departs from those guidelines absent a showing of an abuse of that discretion, which we believe to be the standard for appellate review. The rules do not articulate an exclusive list of specific reasons to which a court must adhere in order to depart from the recommended guidelines sentence; rather, they require only that in making such departure, a court must give written reasons which are "clear and convincing." This omission of a "laundry list" of aggravating or mitigating circumstances appears to be a deliberate decision of the Study Commission rather than an oversight. [Footnote omitted].
Id. at 453.
We find no abuse of the court's sentencing discretion in reducing the period of incarceration below that recommended by the guidelines, so the sentence appealed from is
AFFIRMED.
COBB, C.J., and COWART, J., concur.
NOTES
[1] We have jurisdiction. See § 924.07(9), Fla. Stat. (1983); Fla.R.App.P. 9.140(c)(1)(J).
[2] The points allocated to a first degree felony punishable by life imprisonment have been increased, The Florida Bar: Amendments to Rules of Criminal Procedure (3.701, 3.988 Sentencing Guidelines), 451 So. 2d 824 (Fla. 1984); approved, Chapter 84-328, Laws of Florida, 1984, and the guideline range for second degree murder has been accordingly increased, but such change does not alter the result here.
[3] The second paragraph of this committee note has since been amended to read:
If a split sentence is imposed ... the incarceration portion imposed shall not be less than the minimum of the guideline nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.
While the amended section does not apply retroactively, it would not change the result in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/103443/ | 312 U.S. 126 (1941)
OPP COTTON MILLS, INC., ET AL.
v.
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR.
No. 330.
Supreme Court of United States.
Argued December 20, 1940.
Decided February 3, 1941.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*129 Mr. Ben F. Cameron, with whom Mr. W. Gordon McKelvey was on the brief, for petitioners.
Solicitor General Biddle, with whom Messrs. Robert L. Stern, George A. McNulty, Warner W. Gardner, Gerard D. Reilly, Irving J. Levy, Rufus G. Poole, and Louis Sherman were on the brief, for respondent.
*133 MR. JUSTICE STONE delivered the opinion of the Court.
Three types of questions are presented by the petition for certiorari in this case:
First, whether the Fair Labor Standards Act of 1938, 52 Stat. 1060, is authorized by the Commerce Clause, violates the Tenth Amendment and the Due Process Clause of the Fifth Amendment and is an unconstitutional delegation of the legislative power of Congress to the Administrator of the Wage and Hour Division of the Department of Labor, appointed pursuant to § 4 (a) of the Act.
Second, whether an order of the Administrator prescribing a minimum wage in an industry is unauthorized by the statute and invalid because the procedure of the Administrator and an Industry Committee appointed by him pursuant to § 5 of the Act, which resulted in the order, is unauthorized and violates the Fifth Amendment.
Third, whether the order of the Administrator is invalid because his findings on which the order is based are without the support of substantial evidence. The challenged findings are that the minimum wage established by the order will not substantially curtail employment, and that a classification within the industry is unnecessary for the purpose of fixing, for each classification within it, the highest minimum wage which will not substantially curtail employment in such classification and will not give any competitive advantage to any group in the industry.
*134 Petitioner, Opp Cotton Mills, Inc., an Alabama corporation subject to the Fair Labor Standards Act, alleging that it was aggrieved by an order of respondent, the Administrator, brought the present proceeding in the Circuit Court of Appeals for the Fifth Circuit pursuant to § 10 of the Act, to review and set aside the order fixing a uniform 32 1/2 cents per hour minimum wage for the textile industry, and for other relief. So far as now relevant petitioners challenged the validity of the Act and the order upon the grounds already mentioned. The Court of Appeals sustained the order. 111 F.2d 23. We granted certiorari, 311 U.S. 631, on a petition raising the same questions concerning the validity of the order, which we deem of public importance in the administration of the Act.
The general scope of the Act and the provisions of § 15 (a) (1) (2) and (5) and §§ 6 and 7, prohibiting the manufacture for and shipment in interstate commerce of goods produced for the commerce by employees employed at less than the prescribed minimum wage or more than the prescribed maximum hours without payment of the required overtime wage, have been discussed in United States v. Darby, ante, p. 100. It is unnecessary to repeat that discussion here.
We are here concerned with § 5 (a), § 6 (a) (4), and § 8, under which the proceedings were had which resulted in the challenged order of the Administrator. These sections read together set up an administrative procedure for establishing a minimum wage in particular industries greater than the statutory minimum prescribed by § 6, but not in excess of 40 cents an hour, such increase over the statutory minimum to be fixed for any industry subject to the Act by the Administrator in collaboration with an industry committee.
Section 5 provides, subsection (a), that the Administrator shall appoint an industry committee for each industry *135 engaged in interstate commerce or in the production of goods for the commerce; that, subsection (b), the committee shall include persons representing the public, one of whom shall be designated as chairman, a like number representing employees in the industry, a like number representing employers in the industry, and directs that "In the appointment of the persons representing each group, the Administrator shall give due regard to the geographical regions in which the industry is carried on"; that, subsection (d), the Administrator shall submit to the committee from time to time available data on matters referred to it, shall cause to be brought before the committee in connection with such matters any witnesses whom he deems material, and that the committee may summon other witnesses or call upon the Administrator to furnish additional information to aid it in its deliberations.
Section 6 (a) (4) provides that at any time after the effective date of the section the minimum wage shall be "not less than the rate (not in excess of 40 cents an hour) prescribed in the applicable order of the Administrator issued under section 8." Section 8 (a) prescribes the procedure to be followed by the Administrator and industry committee in establishing the minimum wage authorized by § 6 (a) (4). It provides that with the view to carrying out the policy of the Act "by reaching, as rapidly as is economically feasible without substantially curtailing employment, the objective of a universal minimum wage of 40 cents an hour in each industry" subject to the Act, the Administrator "shall from time to time convene the industry committee for each such industry" which "shall . . . recommend the minimum rate or rates of wages to be paid under section 6 by employers" subject to the Act "in such industry or classifications therein."
Upon the Administrator's referring to the committee the question of minimum wage rates in an industry, § 8 *136 (b) requires it to "investigate conditions in the industry," authorizes it or a subcommittee to "hear such witnesses and receive such evidence as may be necessary or appropriate to enable the committee to perform its duties and functions" under the Act and requires the committee to "recommend to the Administrator the highest minimum wage rates for the industry which it determines, having due regard to economic and competitive conditions, will not substantially curtail employment in the industry." Subsection (c) requires the committee for any industry to "recommend such reasonable classifications within any industry as it determines to be necessary for the purpose of fixing for each classification within such industry the highest minimum wage rate (not in excess of 40 cents an hour) which (1) will not substantially curtail employment in such classification and (2) will not give a competitive advantage to any group in the industry, and shall recommend for each classification in the industry the highest minimum wage rate which the committee determines will not substantially curtail employment in such classification." It further directs that "no classification shall be made, and no minimum wage rate shall be fixed, solely on a regional basis, but the industry committee and the Administrator shall consider among other relevant factors the following:
"(1) competitive conditions as affected by transportation, living, and production costs;
"(2) The wages established for work of like or comparable character by collective labor agreements negotiated between employers and employees by representatives of their own choosing; and
"(3) the wages paid for work of like or comparable character by employers who voluntarily maintain minimum-wage standards in the industry."
By § 8 (d) after the industry committee files its report with the Administrator he, "after due notice to interested *137 persons, and giving them an opportunity to be heard, shall by order approve and carry into effect the recommendations contained in such report, if he finds that the recommendations are made in accordance with law, are supported by the evidence adduced at the hearing, and, taking into consideration the same factors as are required to be considered by the industry committee, will carry out the purposes of this section." Otherwise the Administrator is required to disapprove the recommendations of the committee and again refer the matter to the committee or to another committee for the industry which he may appoint for that purpose. Subsection (f) provides among other things that the wage orders of the Administrator "shall define the industries and classifications therein to which they are to apply" and subsection (g) provides that "due notice of any hearing provided for in the section shall be given by publication in the Federal Register and by such other means as the administrator deems reasonably calculated to give general notice to interested persons."
As appears from his findings in support of the order, the Administrator, on September 13, 1938, appointed Industry Committee No. 1 for the textile industry, that industry being so defined by the order of appointment as to include the manufacture of cotton, silk, rayon and other products. Seven persons representing the public, seven representing employers in the industry, and seven representing employees were appointed to the Committee. Upon request of the Administrator at the Committee's first meeting in October, 1938, subcommittees were appointed for the purpose of considering precisely where the line should be drawn between the textile and some related industries not included in the definition adopted. Before the Committee concluded its deliberations on the recommended wage order the Administrator modified the definition in certain respects not now material.
*138 At a meeting in December, 1938, the Committee heard witnesses and received briefs and memoranda from numerous interested parties. Statistical and economic studies by the Bureau of Labor Statistics in the Economic Section of the Wage and Hour Division had been previously submitted. The Committee then designated another subcommittee to gather additional information and hear such testimony as it deemed necessary to enable the Committee to arrive at a wage recommendation. This subcommittee obtained further economic data and heard additional witnesses including representatives of the American Association of Cotton Manufacturers of which petitioner is a member.
On March 21, 1939, after extended discussion and deliberation, the Committee, by a vote of thirteen to six, adopted a resolution which fixed tentatively a minimum wage of 32 1/2 cents an hour amounting to $13 per forty-hour week or $676 for 52 weeks, as the rate to be recommended to the Administrator. At this meeting the Committee rejected proposals to establish classifications in the industry and wage differentials among the classes. A subcommittee was appointed to draft a report, and on May 22nd and 23rd, after the Administrator had again modified the definition of the industry, the Committee again approved by the same vote as before the 32 1/2 cents minimum wage. The report was accepted and signed, the minority filing two reports in opposition to the recommendation. The report detailed the proceedings of the Committee, analyzed the evidence and data upon which the Committee relied in making its recommendation, gave special consideration to the question whether the wage fixed would curtail employment in the industry generally and in the southern cotton mills in particular, and to the problem of classification. It concluded that "no reasonably efficient enterprise in the textile industry need fear the result of the modest wage standard recommended for *139 the industry," and that the data before it "did not warrant any regional" or other "classification."
On May 27th the Administrator gave notice in the Federal Register which was also issued to the press and published in many newspapers, of a public hearing on the recommendations of the Committee. At the hearing which commenced on June 19, 1939, and was concluded on July 11th, more than 135 witnesses were heard, over 3,300 pages of testimony were taken and eight volumes of exhibits were submitted; oral arguments were heard by the Administrator on July 25th and written briefs were received until August 22, 1939. On September 29, 1939, the Administrator made his findings and order carrying into effect the recommendations of the Committee, effective October 24, 1939, the date on which pursuant to § 6 (a) (2) a minimum wage of 30 cents per hour for all employees subject to the Act became effective.
The industry, as defined by the order, includes broadly the manufacture of yarns and fabrics of cotton and competing material such as rayon and silk, and of those finished products such as sheets, towels and napkins which are normally manufactured in the fabric weaving mills. The Administrator found that the basic considerations in determining which manufacturing processes were to be included within the definition were competitive interrelationships, convertibility of looms and the operations normally carried on by textile mills.
Although the Administrator was of opinion that the question of the composition of the Industry Committee was not properly before him for determination, he reviewed the evidence and concluded that the members had been chosen with due regard to the geographical regions in which the industry is carried on and that the Committee had considered the factors set forth in § 8 of the Act and had reached its recommendation in accordance with law.
*140 The Administrator found that the 32 1/2 cent minimum wage would increase the average wage bill for the textile industry as a whole 4 per cent over the 25 cent minimum in effect before October 24, 1939, and 2.1 per cent over the 30 cent minimum in effect thereafter and that the wage increases in the southern portion of the industry would be 6.25 per cent and 2.15 per cent over the 25 and 30 cent minimum respectively. He further found that since the average labor costs do not constitute over 36 per cent of production costs the minimum wage increase would increase production costs slightly over one-third of the percentages of wage increases just indicated, and that the increase in production costs would not result in such a rise in prices to ultimate consumers of the finished product as to decrease consumer demand.
From all this he drew the conclusion that there would be no substantial curtailment of employment in the industry as a whole or in its southern branch as a result of the increased wage. In the case of small cotton mills in the south employing only 7 per cent of the southern cotton textile workers (5 per cent of all in the entire cotton industry), paying the lowest wages, he concluded that the new minimum rate as contrasted with the 30 cent statutory rate would raise manufacturing costs more than the 1.94 per cent average, and for these mills the increase would range from 2.77 per cent to 3.75 per cent. The Administrator found that curtailment of employment even in the mills paying the lowest wages would be dependent on total cost and the technological and general efficiency of each mill, and that low wages do not necessarily coincide with a low degree of efficiency. The Administrator found generally that the small southern mills are not necessarily marginal or the least profitable and that, accepting the figures submitted by the group of small mills opposing the 32 1/2 cent minimum, the increase in labor costs for such mills would be 13.5% and *141 only 4 per cent in total manufacturing cost over the 25 cent minimum. The increase over the 30 cent minimum would be slightly over one-third of these percentages. The Administrator also found that a modernization program in these mills would displace only a small number of employees. From these and other facts detailed in the findings, the Administrator concluded that there would be no substantial curtailment of employment even in the group of small mills.
The Administrator also considered the factors for determining whether classification should be made for wage differentials within the industry. After examining numerous studies of living costs made by the Bureau of Labor Statistics of the Department of Labor he concluded that the cost of living in the north exceeds that in the south by about 4.6% on the average, and that the differences in costs between cities in each region greatly exceed the difference between the two regions as a whole. He accordingly concluded that living costs do not vary substantially or uniformly between regions and do not affect competitive conditions in the industry. He found that northern mills had an advantage with respect to transportation costs in shipping to the New England states, but southern mills had an advantage in shipping to the middle west and south, having a great population; that many northern finishing mills receive unfinished cloth from southern factories and thus bear the disadvantage in freight rates from the south to northern finishing mills and that on an average the south has a slight transportation advantage with respect to cotton coming to the mills there. He concluded that even with the average freight rates in the south somewhat higher than the north, on the whole the advantages and disadvantages in transportation costs in the two regions were approximately in balance and that any remaining disadvantage was so small as not to affect competitive conditions appreciably.
*142 After considering the proportion of obsolescent machinery in northern and southern mills, their taxes, efficiency of workers, power and construction costs and profits, the Administrator found that the southern mills were at least in a position of equality with northern mills in so far as these factors affect production costs, and that after the establishment of the 32 1/2 cent minimum the prevailing minimum wages in the north would be considerably higher than in the south. He concluded that neither wage rates in collective labor agreements nor wages paid by employers maintaining voluntary minimum wage standards required a classification within the industry, and finally he concluded that the Industry Committee's recommendations "are made in accordance with law, are supported by the evidence adduced at the hearing and, taking into consideration the same factors as are required to be considered by the Industry Committee, the prescribed 32 1/2 cent wage will carry out the purposes of § 8 of the Act."
Constitutionality of the Act. The objections that the sections of the Act imposing a minimum wage and maximum hours are not within the commerce power and infringe the Tenth and Fifth Amendments were discussed and disposed of in our opinion in United States v. Darby, supra. Since petitioners concede that they are engaged in the manufacture of cotton goods for interstate commerce it is unnecessary to consider these contentions further here.
There remains the question whether the Act is an unconstitutional delegation of the legislative power of Congress. Petitioners urge that the standards prescribed for fixing the authorized minimum wages between 30 and 40 cents per hour are too vague and indefinite to admit of any judicial determination whether they are within or without the standards prescribed by Congress.
*143 It is not seriously urged that the policy and standards of the statute are subject to these criticisms independently of the provisions relating to classification. Section 8 defines, with precision, the policy of the Act to raise the minimum wage to the 40 cents per hour limit "as rapidly as economically feasible without substantially curtailing employment" in each industry, and the standards of the administrative action applicable to the Administrator are those made applicable to the committee which it is provided "shall recommend to the Administrator the highest minimum wage rates for the industry which it determines, having due regard to economic and competitive conditions, will not substantially curtail employment in the industry." But it is said that application of these standards in an industry is made contingent upon the determination whether the industry is to be classified and if so, whether it is to be subject to particular wage differentials, and that these determinations in turn depend upon factors so inadequately defined as to afford no standard of administrative action.
Committee and Administrator are required, as prerequisites for the classification, to determine that it will not give a competitive advantage to any group in the industry, and that the prescribed wage will not substantially curtail employment in each classification, and in making these determinations the committee and Administrator must consider "among other relevant factors," competitive conditions as affected by transportation, living and production costs, and the wage scale for comparable work established by collective bargaining labor agreements, and by employers who voluntarily maintain minimum wage standards in the industry.
It is urged that the statute does not prescribe the relative weight to be given to the specified factors or the other unnamed "relevant factors." It is said that this, *144 with the further requirements that the prescribed wage is to be fixed with "due regard to economic and competitive conditions"; that the classification if made shall not "give a competitive advantage to any group in the industry," and that the prescribed wage must be one fixed "without substantially curtailing employment," leave the function which the committee and Administrator are to perform so vague and indefinite as to be practically without any Congressional guide or control.
The mandate of the Constitution that all legislative powers granted "shall be vested" in Congress has never been thought to preclude Congress from resorting to the aid of administrative officers or boards as fact-finding agencies whose findings, made in conformity to previously adopted legislative standards or definitions of Congressional policy, have been made prerequisite to the operation of its statutory command. The adoption of the declared policy by Congress and its definition of the circumstances in which its command is to be effective, constitute the performance, in the constitutional sense, of the legislation function.
True, the appraisal of facts in the light of the declared policy and in conformity to prescribed legislative standards, and the inferences to be drawn by the administrative agency from the facts, so appraised, involve the exercise of judgment within the prescribed limits. But where, as in the present case, the standards set up for the guidance of the administrative agency, the procedure which it is directed to follow and the record of its action which is required by the statute to be kept or which is in fact preserved, are such that Congress, the courts and the public can ascertain whether the agency has conformed to the standards which Congress has prescribed, there is no failure of performance of the legislative function.
*145 While fact finding may be and often is a step in the legislative process, the Constitution does not require that Congress should find for itself every fact upon which it bases legislation. "It is a constitution we are expounding" "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." McCulloch v. Maryland, 4 Wheat. 316, 407, 415. In an increasingly complex society Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy in fixing, for example, a tariff rate, a railroad rate or the rate of wages to be applied in particular industries by a minimum wage law. The Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable. The essentials of the legislative function are the determination of the legislative policy and its formulation as a rule of conduct. Those essentials are preserved when Congress specifies the basic conclusions of fact upon ascertainment of which, from relevant data by a designated administrative agency, it ordains that its statutory command is to be effective.
The present statute satisfies those requirements. The basic facts to be ascertained administratively are whether the prescribed wage as applied to an industry will substantially curtail employment, and whether to attain the legislative end there is need for wage differentials applicable to classes in industry. The factors to be considered in arriving at these determinations, both those specified and "other relevant factors," are those which are relevant to or have a bearing on the statutory objective. The fact that Congress accepts the administrative judgment as to the relative weights to be given to these factors in each case when that judgment in other respects *146 is arrived at in the manner prescribed by the statute, instead of attempting the impossible by prescribing their relative weight in advance for all cases, is no more an abandonment of the legislative function than when Congress accepts and acts legislatively upon the advice of experts as to social or economic conditions without reexamining for itself the data upon which that advice is based.
Measured by this requirement the present statute is no less an exercise of the legislative function than was the Tariff Act of 1922 authorizing the President to raise or lower tariff duties so as to equalize the difference which, with the aid of the Tariff Commission, he finds between the costs of production of dutiable articles in this and in foreign countries, his determination, to be based upon a variety of relevant factors, some specified and others not, for which the statute prescribed no relative weight. See Hampton & Co. v. United States, 276 U.S. 394; cf. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294; United States v. Bush & Co., 310 U.S. 371. See to the like effect under other statutes Interstate Commerce Comm'n v. Louisville & N.R. Co., 190 U.S. 273 (Interstate Commerce Act); Mulford v. Smith, 307 U.S. 38, 48, 49 (Agricultural Adjustment Act of 1938); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (Bituminous Coal Conservation Act of 1937); Currin v. Wallace, 306 U.S. 1 (Federal Tobacco Inspection Act); United States v. Rock Royal Co-operative, 307 U.S. 533 (Agricultural Marketing Agreement Act).
The procedure before the Industry Committee. The procedure before the Committee is assailed upon three principal grounds: that the changes in definition of the textile industry made after the appointment of the Committee rendered the order of apportionment void; that the order defining the industry is also invalid because the Administrator placed the woolen industry in a different *147 industry under a different committee, rather than in the textile industry including cotton, silk and rayon; and that the Committee was not properly constituted under the statute because the Administrator in selecting it did not give "due regard to the geographical regions in which the industry is carried on." Certain procedures before the Committee are also challenged because they are said to be unauthorized or contrary to the statute or to the requirements of due process.
At the outset the distinct separation of the functions to be performed by the committee under § 8 (a), (b), (c), (d), from that to be performed by the Administrator after submission of the committee's report, is to be noted. The committee is required to be composed of equal numbers of representatives of the public, of the employers and of the employees in the industry, selected with due regard to geographical considerations. It acts as an investigating body with the duty to report its recommendations to the Administrator. Its report is the basis of the proceedings before the Administrator under § 8 (d) which are judicial in character, with provisions for notice and full hearing. The issue to be determined by the Administrator upon the hearing is whether the recommendations of the committee "are made in accordance with law, are supported by the evidence adduced at the hearing, and, taking into consideration the same factors as are required to be considered by the industry committee, will carry out the purposes of this section." Review of the Administrator's order fixing a wage is had under § 10 by petition to the circuit court of appeals on the record made before the Administrator. Thus under the provisions of § 8 (d) no wage is fixed which is not recommended by the committee, and not then without appropriate hearing, findings and order by the Administrator.
As already stated the Administrator's order of September 13, 1938, setting up the Industry Committee, defined *148 the industry so as to include the manufacture of a variety of cotton, silk and rayon products, including those made by petitioners, and throughout the proceedings their products were so included. On recommendation of the Committee two changes in the definition were made with reference to the inclusion and exclusion of products which were near the borderline of the definition before the amendment. December 19, 1938, the order was amended so as to exclude knitted fabrics and to include other products such as blankets and sheets. A second amendment ordered by the Administrator on May 22, 1939, just before the Committee adopted its report, added to the Industry the manufacture of mixed products containing not more than 45 percent wool.
In all this we can find no failure to comply with the statute. Section 5 (a) directs that "the Administrator shall, as soon as practicable, appoint an industry committee for each industry" subject to the Act. But it does not direct a final definition of the industry to be made before the committee meets and such a requirement plainly would not comport with the purposes of the Act. Section 8 (f) provides that orders of the Administrator "issued under this section" which are the final orders fixing a wage "shall define the industries and classifications therein to which they are to apply." So far as the definition is open to attack, it is upon the record made before the Administrator if it there appears that the definition does not conform to the statute, or that the recommendations of the committee were based on a different definition of the industry from that finally made and so do not support an order for the industry as defined.[1] But subject to these requirements which insure *149 that recommendations of the committee and the order of the Administrator are based on the same definition of the industry, there is no provision of the statute preventing amendment of the definition while the matter is pending before the committee and no purpose or policy of the Act which would be served by precluding such amendments so long as the report of the committee is based on the amended definition. It is to the advantage of the administration of the Act that the completeness and accuracy of the definition should be reexamined and the definition revised with the aid of the committee at any time before its report is submitted. We find nothing in the statute to prevent it.
Section 3 (h) defines "Industry" as meaning "industry, or branch thereof, or group of industries." In defining the textile industry and in fixing for it a wage which with due regard to "economic and competitive conditions" will not substantially curtail employment in the industry it was appropriate for the Administrator to take into account competitive conditions. In defining the industry the Administrator took into account the competitive interrelationship of the fabrics included and the interchangeability of the looms employed in producing them; and in excluding the woolen industry he took account of its competitive relationships with the products included and the different nature of the establishments, labor forces and wage structures associated with the two types of product. On the record before us, we cannot say that in so doing he transgressed any provision of the statute. Nor can we say that in applying these tests he departed from its purpose. The inclusion of a given product in one industry or another, where both are subject to the Act, principally concerns convenience in administering the Act. For the provisions for classification with appropriate wage differentials afford ample opportunity for fixing an appropriate *150 wage with respect to any product whether it is placed in one industry or another. There is no serious contention and we find no basis for saying that the evidence does not support the Administrator's order with respect to exclusion of wool from the definition of the textile industry.
We conclude also that the composition of the Committee satisfies the requirements of the Act. The Committee consisted of twenty-one persons, seven selected from each of the three groups represented. Of the employer representatives five were cotton goods manufacturers, and four of these were from the southern states. The rayon and silk manufacturers each had one representative. Since these branches of the industry are predominantly northern they were selected from the north. Three of the seven members representing the public were from southern states, one was from Pennsylvania and three from the middle west. Two of the representatives of labor were from the south, three from the north and two of them from Washington, D.C. All five of the non-southern labor members of the Committee were executive officials of or connected with labor organizations, national in scope, which represented employees in the south. Thus nine of the members of the Committee were from the south, and the Administrator could have concluded that five others fairly represented the south.
While only 31 per cent of the factories in the industry are in the south, 51.5 per cent of the value of the product is produced in southern mills and 55 per cent of the wage earners in the industry are employed by those mills. Petitioners argue that since the south had a mathematical preponderance in the Industry the Administrator was required by the statute to appoint a majority of each group, or at least a majority of the members of the Committee from that region. But the requirement of the statute that the Administrator give "due *151 regard" to geographical considerations is not a requirement for a mathematical geographical apportionment of the committee. It calls for the exercise of discretion by the Administrator in selecting, with the purposes of the Act in mind, a committee on which the geographically distributed interests of the Industry shall be fairly represented. As the record shows that the lowest wage scale prevailed in the southern mills, the Administrator could have concluded that a selection of a committee, a majority of whose members represented a low wage locality would tend to defeat the purposes of the Act. The Act was also intended to protect the interests of employers and employees of mills in other localities which compete with the low wage scale mills. We cannot say that the Administrator failed to give "due regard" to geographical considerations or otherwise abused his discretion in the selection of the Committee.
Petitioners make a great variety of criticisms of the proceedings before the Committee, all of which rest on the presupposition that either the statute or the demand of due process of law requires the Committee to hold hearings upon notice to interested persons and that its hearings be subject to review before the Administrator and finally as a part of the proceedings before the Administrator to judicial review on petition to the Circuit Court of Appeals, as provided by § 10.
Section 5 (c) directs that the Administrator shall "by rules and regulations prescribe the procedure to be followed by the committee." Section 5 (d), as already noted, provides that the Administrator shall submit data to the committee, shall cause witnesses whom he deems material to be brought before it, and that the committee "may summon other witnesses" to aid in its deliberations. Section 8 (b) requires the industry committee to "investigate" conditions in the industry. It provides that the committee "may hear such witnesses and receive *152 such evidence as may be necessary or appropriate" and requires the committee to "recommend" to the Administrator the highest minimum wages "which it determines, having due regard to economic and competitive conditions, will not substantially curtail employment in the industry." After the report is filed with the Administrator he, upon due notice and hearing, is required to approve or reject the recommendations.
It is clear that the sections of the statute now before us do not require the committee to conduct a quasi-judicial proceeding upon notice and hearing. Its function, as already stated, is to investigate upon the basis of data which the Administrator may submit and which the committee may procure for itself and to report its recommendation with respect to the minimum wage. Cf. Norwegian Nitrogen Co. v. United States, supra, 318. That such is the interpretation of the statute is abundantly supported by its legislative history. See Conference Committee Report, H. Rept. No. 2738, 75th Cong., 3d Sess., p. 31, and the explanation of the bill by the Chairman of the Senate Committee, 83 Cong. Rec. 9164. In his statement he pointed out that the procedure is modeled upon the New York Minimum Wage Act, see Morehead v. Tipaldo, 298 U.S. 587, 619, and he emphasized that no minimum wage rate could be established which had not been first "carefully worked out" by a committee drawn principally from the industry itself and that it should not then be put into effect "by administrative action which has not been found to be in accordance with law by an independent, responsible administrative office of the Government, exercising an independent judgment on the evidence after a legal hearing."
The demands of due process do not require a hearing, at the initial stage or at any particular point or at more than one point in an administrative proceeding so long *153 as the requisite hearing is held before the final order becomes effective. The proceedings before the Administrator as provided by § 8 (d) satisfy the requirements of due process without further requirement, which the statute omits, of a hearing on notice before the Committee. York v. Texas, 137 U.S. 15; American Surety Co. v. Baldwin, 287 U.S. 156, 168; United States v. Illinois Central R. Co., 291 U.S. 457, 463.
The command of § 8 (d) that the Administrator, as a prerequisite to a wage order, find that the recommendations of the committee "are made in accordance with law" does not extend to a review of the evidence and hearings before the committee or an investigation of the mental processes by which Committee members reached their conclusion to recommend the minimum wage, or extend beyond inquiry upon evidence before the Administrator whether the requirements of statute and rules of the Administrator as to the composition of the committee, the definition of the industry, and the actions required to be taken by the committee have been observed.
Such being the function of the committee it is immaterial that substitutes were appointed for two members in the course of its deliberations, it not appearing that they did not consider the evidence taken and the proceedings had before their appointment to the Committee.
Procedure before the Administrator. Notice of the. hearing before the Administrator was given in conformity to the statute, and since the notice was forty days in advance of the time when petitioner's representative was heard and introduced evidence into the record and a further opportunity was given to present evidence, the contention that the notice to petitioner was inadequate or failed to meet constitutional requirements is without merit. And as the issue for determination by the Administrator in the light of the statutory requirements *154 was framed by the report and recommendation of the Committee to the Administrator there was no failure to inform petitioner of the contentions made in behalf of the Government. Cf. Morgan v. United States, 298 U.S. 468; 304 U.S. 1. Nor can we find any error or want of due process in permitting the Industry Committee to appear before the Administrator by counsel and to offer evidence in support of its recommendations or in permitting members of the staff of the Wage and Hour Division to give testimony. See Denver Union Stock Yard Co. v. United States, 304 U.S. 470, 477.
Support in the evidence of the Administrator's findings. By § 10 review of the Administrator's order by the courts is limited to questions of law "and findings of fact by the Administrator when supported by substantial evidence shall be conclusive." Petitioners attack the Administrator's findings that the 32 1/2 cent minimum will not substantially curtail employment and that classification of the industry is not required, on the ground that they are not supported by substantial evidence.
Since the statute required these findings to be based upon consideration of economic and competitive conditions in the industry, as affected by transportation, living and production costs, including wages, the findings rest, to a substantial degree, upon studies of statistical data with respect to these factors gathered by government agencies and published by them officially. They include publications of the Bureau of Labor Statistics, the Interstate Commerce Commission, the Federal Trade Commission, and the Economic Section of the Wage and Hour Division of the Department of Labor. The most important and the principal object of attack is Bulletin No. 663 of the Bureau of Labor Statistics entitled "Wages in Cotton Goods Manufacturing," which is a study of the economic conditions generally prevailing in the cotton textile industry and in particular of the wages of employees. The statistics gathered, if regarded as of probative *155 force, and the inferences drawn from them by the Administrator, taken with other evidence, amply support his findings.
The argument of petitioners is not that the record contains no evidence supporting the findings but rather that this class of evidence must be ignored because not competent in a court of law. But it has long been settled that the technical rules for the exclusion of evidence applicable in jury trials do not apply to proceedings before federal administrative agencies in the absence of a statutory requirement that such rules are to be observed. Interstate Commerce Comm'n v. Baird, 194 U.S. 25, 44; Interstate Commerce Comm'n v. Louisville & N.R. Co., 227 U.S. 88, 93; Spiller v. Atchison, T. & S.F. Ry. Co., 253 U.S. 117; United States v. Abilene & Southern Ry. Co., 265 U.S. 274, 288; John Bene & Sons v. Federal Trade Commission, 299 F. 468, 471. We need not consider whether this class of evidence must be excluded from proceedings in court.
Further the documents in question were received in evidence without objection. And even in a court of law if evidence of this character is admitted without objection it is to be considered and must be accorded "its natural probative effect as if it were in law admissible." Diaz v. United States, 223 U.S. 442, 450; Rowland v. St. Louis & San Francisco R. Co., 244 U.S. 106, 108; cf. United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 312.
The reliability of the data published in the Bulletin was supported before the Administrator by the testimony of some of his compilers. In the circumstances we think the Bulletin and other documents in question were evidence to be considered by the Administrator; that the weight to be given to them and the inferences to be drawn from them were for the Administrator and not the courts, and that they lend substantial support to his findings.
*156 Further contentions that the findings, and particularly the finding that classification in the industry is unnecessary, and the subsidiary findings as to differences in transportation, living, and production costs, are unsupported by substantial evidence are addressed either to the weight and dependability of the evidence supporting the findings or to the testimony of particular witnesses or conflicting evidence on which petitioners rely. We have examined these contentions and, without further elaboration of the details of the evidence, we conclude that the Administrator's findings are supported by substantial evidence. Any different conclusion would require us to substitute our judgment of the weight of the evidence and the inferences to be drawn from it for that of the Administrator which the statute forbids.
Numerous other contentions are advanced by petitioners but they are subsidiary to those which we have already considered, or are of such slight moment as to call for no further discussion.
Affirmed.
NOTES
[1] Here the Committee reconsidered its report, after the Administrator had redefined the industry on May 22, 1939, and again adopted its recommendations which had been agreed upon. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/103600/ | 315 U.S. 110 (1942)
UNITED STATES
v.
WRIGHTWOOD DAIRY CO.[*]
No. 744.
Supreme Court of United States.
Argued January 14, 1942.
Decided February 2, 1942.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
*111 Mr. Alvin E. Stein for Wrightwood Dairy Company, respondent in No. 744 and cross-petitioner in No. 783.
Mr. John S.L. Yost, with whom Solicitor General Fahy, Assistant Attorney General Arnold, and Messrs. Robert L. Stern, James C. Wilson, and Miss Margaret H. Brass were on the brief, for the United States.
*115 MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
The principal questions for our decision are whether certain price regulation by the Secretary of Agriculture of milk produced and sold intrastate is authorized by the *116 provisions of the Agricultural Marketing Agreement Act of June 3, 1937, 50 Stat. 246, 7 U.S.C. § 608c, and is a permissible regulation under the commerce clause of the Constitution.
Section 8c of the Act authorizes the Secretary of Agriculture to issue marketing orders fixing minimum prices to be paid to producers of milk and certain other commodities. Paragraph 1 of the section provides that orders of the Secretary "shall regulate, in the manner hereinafter in this section provided, only such handling of such agricultural commodity, or product thereof, as is in the current of interstate or foreign commerce, or which directly burdens, obstructs, or affects, interstate or foreign commerce in such commodity or product thereof."
The United States sought in the present suit a decree directing respondent to comply with the Secretary's Order No. 41, of August 28, 1939, regulating the handling of milk in the "Chicago, Illinois, marketing area." Respondent is a handler in that area of milk which it purchases from producers in Illinois. The order, which is of the type described in the opinion of this Court in United States v. Rock Royal Co-operative, 307 U.S. 533, 551-555, is by its terms applicable to respondent, and purports to carry out the statutory scheme for regulating the price of milk paid to producers considered in the opinion in that case. By the order the Secretary found that all milk produced for sale in the marketing area "is handled in the current of interstate commerce, or so as directly to burden, obstruct, or affect interstate commerce in milk or its products . . .," and directed that it apply to such "handling of milk" in the marketing area "as is in the current of interstate commerce, or which directly burdens, obstructs, or affects interstate commerce."
The order, as provided by the statute, § 8c (5), classifies milk according to its uses, and establishes a formula for determining the minimum price to be paid to producers *117 for each class of milk. It prescribes the method of determining the value of milk received from producers by each handler during each month. It requires the payment of a uniform unit price to producers, computed by dividing the total value of milk reported by all handlers in the marketing area by the total quantity of such milk, with deductions of certain amounts to provide a cash balance in a "producer-settlement fund." The handler is required to pay producers the uniform price, subject to butterfat and location differentials. But he is also required to pay into the settlement fund, or permitted to withdraw from it, as the case may be, certain amounts, depending on whether the total value of the milk used by him is greater, or less, respectively, than his total payments to producers at the uniform price. The amounts withdrawn from the settlement fund by handlers are required to be used to bring the price received by certain producers up to the uniform price set in the order, where, because of the purpose for which the handler has sold it, the value of their milk is less than the uniform price. Handlers are required to make reports to the Administrator containing information necessary for the execution of the order and to bear the expense of administering it.
Respondent's answer in the District Court sets up that its business is entirely intrastate, and that, in consequence, the statute does not, and under the commerce clause can not constitutionally, apply to it. The answer also sets up additional grounds, which need not now be considered, for respondent's contention that the order is invalid, and by way of counterclaim prays that the United States and its officers and agents be enjoined from enforcing the order. The court found that respondent had not complied with the order; that in the course of its business it purchases milk from producers within the State of Illinois, processes the milk and sells it in the state "in competition with the milk of other handlers in the area"; that *118 none of respondent's milk is physically intermingled with that which has crossed state lines; and that, prior to the order, 60 per cent of the milk sold in the marketing area was produced in Illinois and 40 per cent in neighboring states, and that at the time of the findings "over 60 per cent" was produced in Illinois. The record shows that "approximately 40%" comes from without the state.
The court held that "the order was issued by the Secretary in full compliance with the law. All conditions precedent to the effectiveness of said order have occurred," but that the business of the defendant "was not in the current of interstate . . . commerce, and did not directly burden, obstruct or affect interstate . . . commerce in milk marketed within the Chicago, Illinois, marketing area." It accordingly decreed that the complaint be dismissed, and granted the injunction prayed by the counterclaim.
The Circuit Court of Appeals affirmed, 123 F.2d 100, on the sole ground that Congress is without authority under the commerce clause to regulate intrastate transactions in milk which affect interstate commerce through competition only. It recognized that respondent's milk is sold in competition with other milk moving interstate; that the "milk problem is a serious one and apparently for the most effective control requires unified regulations," and that if respondent is not subject to the present regulations is "may well be that the effective sanction of the order will wither before the force of competition, the morale of the market will disintegrate, and this attempt at solution of the problem by the National Government will fail." But it concluded that there is a hiatus between the constitutional power of State and Nation which precludes any solution of the problem by Congressional legislation.
We think there is no such hiatus. Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce, United States v. Rock Royal Co-operative, supra, and it possesses every power *119 needed to make that regulation effective. The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. See McCulloch v. Maryland, 4 Wheat. 316, 421; United States v. Ferger, 250 U.S. 199; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 221; United States v. Darby, 312 U.S. 100, 118-19. The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196. It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.
Familiar examples are the Congressional power over commodities inextricably commingled, some of which are moving interstate and some intrastate, see United States v. New York Central R. Co., 272 U.S. 457, 464; the power to regulate safety appliances on railroad cars, whether moving interstate or intrastate, Southern Ry. Co. v. United States, 222 U.S. 20; the power to control intrastate rates of a common carrier which affect adversely federal regulation of the performance of its functions as an interstate carrier, Shreveport Case, 234 U.S. 342; Railroad Commission of Wisconsin v. Chicago, B. & Q.R. Co., 257 U.S. 563; the regulation by the Tobacco Inspection Act of tobacco produced intrastate and destined to consumers within the state as well as without, Currin v. Wallace, 306 U.S. 1; the regulation of both interstate and intrastate marketing of *120 tobacco under the Agricultural Adjustment Act, Mulford v. Smith, 307 U.S. 38, 47; and see cases collected and discussed in United States v. Darby, 312 U.S. 100, 118-125.
Competitive practices which are wholly intrastate may be reached by the Sherman Act because of their injurious effect on interstate commerce. Northern Securities Co. v. United States, 193 U.S. 197; Swift & Co. v. United States, 196 U.S. 375; United States v. Pattern, 226 U.S. 525; Coronado Coal Co. v. United Mine Workers, 268 U.S. 295; Local 167 v. United States, 291 U.S. 293; Stevens Co. v. Foster & Kleiser Co., 311 U.S. 255. So too the marketing of a local product in competition with that of a like commodity moving interstate may so interfere with interstate commerce or its regulation as to afford a basis for Congressional regulation of the intrastate activity. It is the effect upon the interstate commerce or its regulation, regardless of the particular form which the competition may take, which is the test of federal power. Cf. Shreveport Case, supra; Railroad Commission of Wisconsin v. Chicago, B. & Q.R. Co., supra; National Labor Relations Board v. Jones & Laughlin Corp., 301 U.S. 1, 36-43; United States v. Darby, supra, 122.
As the court below recognized, and as seems not to be disputed, the marketing of intrastate milk which competes with that shipped interstate would tend seriously to break down price regulation of the latter. Under the conditions prevailing in the milk industry, as the record shows, the unregulated sale of the intrastate milk tends to reduce the sales price received by handlers and the amount which they in turn pay to producers. Study of the order which we have summarized makes clear that the unregulated handler selling fluid milk can pay producers substantially less than the minimum price set in the order for milk of that class, and yet pay as much as, or more than, the "uniform price" prescribed by the regulatory scheme for all producers, *121 which is based upon the average price for the several classes of milk combined. Such a handler would have an advantage over others in the sale of the class of milk in which he principally deals, and could force his competitors dealing in interstate milk to surrender the market or seek to reduce prices to producers in order to retain it.
It is no answer to suggest, as does respondent, that the federal power to regulate intrastate transactions is limited to those who are engaged also in interstate commerce. The injury, and hence the power, does not depend upon the fortuitous circumstance that the particular person conducting the intrastate activities is, or is not, also engaged in interstate commerce. See Chicago Board of Trade v. Olsen, 262 U.S. 1; Stevens Co. v. Foster & Kleiser Co., supra. It is the effect upon interstate commerce or upon the exercise of the power to regulate it, not the source of the injury which is the criterion of Congressional power. Second Employers' Liability Cases, 223 U.S. 1, 51. We conclude that the national power to regulate the price of milk moving interstate into the Chicago, Illinois, marketing area, extends to such control over intrastate transactions there as is necessary and appropriate to make the regulation of the interstate commerce effective; and that it includes authority to make like regulations for the marketing of intrastate milk whose sale and competition with the interstate milk affects its price structure so as in turn to affect adversely the Congressional regulation.
We turn to the question whether Congress has exercised that authority by § 8c (1). Respondent argues that Congress, in enacting it, did not intend to exercise its full power over commerce, and that read in the light of its legislative history the section does not authorize the regulation of competing intrastate milk. In terms the statute speaks of the handling of products "in the current of interstate commerce" or "which directly burdens, obstructs, or affects, *122 interstate commerce." The argument is that the word "directly" in the statute is restrictive, evidencing an intention to exercise less than the full authority possessed by Congress, and a purpose not to extend that authority to the regulation of local products which affect the interstate commodities and their regulation only by competing with them.
In support of this contention respondent points to the precursor of the present statute, the Agricultural Adjustment Act of 1933, 48 Stat. 31, 35, as amended by 48 Stat. 528, which contained provisions omitted from the present statute, specifically authorizing certain regulation of products "in competition with" those in interstate commerce. Section 8 (2) of the 1933 Act, as amended, authorized the Secretary to enter into marketing agreements with those "engaged in the handling of any agricultural commodity or product thereof, in the current of or in competition with, or so as to burden, obstruct, or in any way affect, interstate or foreign commerce." And § 8 (3) provided for the issuing of licenses to those engaged "in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof." In the 1935 amendments to the Agricultural Adjustment Act these provisions were replaced by the phraseology which was taken over without change into § 8c (1) of the Agricultural Marketing Agreement Act of 1937, already quoted. Hence it is to the legislative history of the 1935 amendments that we must turn to ascertain the significance of the phrase, "directly affects" interstate commerce, which then appeared in the statute for the first time.
The bills providing for the 1935 amendments, as introduced, eliminated the differences between § 8 (2) and § 8 (3) of the 1933 Act, as amended, and authorized the Secretary to issue licenses to those "engaged in the handling of any agricultural commodity or product thereof, or any *123 competing commodity or product thereof, in the current of or in competition with or so as to burden, obstruct, or in any way affect, interstate or foreign commerce." S. 1807, H.R. 7713 and 8052, 74th Cong., 1st Sess. In the reports of the House and Senate Committees on Agriculture, it was pointed out that although "the full extent of the Federal power over interstate commerce is intended to be vested in the Secretary," it was "not intended to authorize the licensing of persons handling goods only in intrastate commerce except where such handling burdens, obstructs, or affects interstate commerce." S. Rep. No. 548, p. 6, H. Rep. No. 808, p. 5, H. Rep. No. 952, p. 5, 74th Cong., 1st Sess.
These bills were pending in Congress when Schechter Corp. v. United States, 295 U.S. 495, was decided on May 27, 1935. In consequence of that decision a new bill, H.R. 8492, was reported out which superseded the pending bills and eventually became the Act of 1935. The new bill, in terms, permitted the Secretary to regulate the handling of products which "directly affects" interstate commerce. As the legislative history demonstrates, this phraseology was deliberately chosen to conform to that adopted in the opinion in the Schechter case, as signifying the full reach of the commerce power, and with the avowed purpose of conferring on the Secretary authority over intrastate products to the full extent of that power. See 79 Cong. Rec. 9478 and S. Rep. No. 1011, p. 8, H. Rep. No. 1241, p. 8, 74th Cong., 1st Sess.
In the Schechter case the Court was concerned only with the alleged infringements of the "Code of Fair Competition" for the live poultry industry of the New York City metropolitan area, which had been adopted under the provisions of § 3 of the National Industrial Recovery Act of June 16, 1933, 48 Stat. 195, 196. The violations of the code charged were that wholesale distributors who had purchased poultry in New York, most *124 of which came from without the state, and who were engaged in slaughtering and reselling to retailers, had failed to maintain for their employees wages and hours prescribed by the code, and had failed to abandon "selective selling" to their customers in New York which the code had prohibited.
The Court's opinion pointed out that the defendants were not charged with injury to interstate commerce or interference with persons engaged in that commerce, and that the acts charged had no different relation to or effect upon interstate commerce than like acts in any other local business which handles commodities brought into the state. Schechter Corp. v. United States, supra, 545-6. It characterized their effect upon interstate commerce as "indirect," and distinguished them from those acts and transactions intrastate which, because they "directly affect" interstate commerce, are within the Congressional regulatory power. In explanation of this distinction and as examples of direct effects which are within the commerce power it referred to the "fixing of rates for intrastate transportation which unjustly discriminate against interstate commerce," citing the Shreveport Case, supra, and referred to intrastate restraints upon competition injuriously affecting interstate commerce condemned by the Sherman Act, citing Local 167 v. United States, supra, and other cases.
In adopting the change in the new bill, giving to the Secretary the authority to regulate the handling of products "directly affecting" interstate commerce, and in deleting the phrase "in competition with" interstate commerce, the House and Senate Committees on Agriculture, after referring to the Schechter case stated: "This phrase has been omitted from the proposed section 8c (1) of the bill which deals with orders . . . because the proposed language makes it clear that the full extent of the Federal power over interstate and foreign commerce and no more *125 is intended to be vested in the Secretary of Agriculture in connection with orders." See S. Rep. No. 1011, p. 9; H. Rep. No. 1241, p. 8, 74th Cong., 1st Sess.
The same interpretation of the amendments was given by the Committee representative charged with explaining them on the floor of the Senate, who declared, 79 Cong. Rec. 11139, "The position of the committee in respect to these amendments is that intrastate commerce may burden or affect interstate commerce and that consequently this is a constitutional enactment under the decision of the Court in the Shreveport case." The House debates also disclose general recognition that the bill as amended was intended to be a full exercise of the federal power over competing intrastate milk. 79 Cong. Rec. 9479-9480, 9485.
The opinions of some members of the Senate,[1] conflicting with the explicit statements of the meaning of the statutory language made by the Committee reports and members of the Committees on the floor of the Senate and the House, are not to be taken as persuasive of the Congressional purpose. Cf. United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 318. Moreover, other Senators, not members of the Committee on Agriculture, accepted its views of the extent to which the federal power was to be exerted by the proposed legislation.[2]
We think it clear that Congress, by the provisions of § 8c (1), conferred upon the Secretary authority to regulate the handling of intrastate products which by reason of its competition with the handling of the interstate milk so affects that commerce as substantially to interfere with its regulation by Congress; and that the statute so read is a constitutional exercise of the commerce power. Such was the view expressed in United States v. Rock Royal *126 Co-operative, supra, 307 U.S. at 568. We adhere to that opinion now.
The judgment will be reversed, but, as errors assigned below have not been passed on there or argued here, the cause will be remanded to the Circuit Court of Appeals for further proceedings in conformity with this opinion. The mandate will issue forthwith.
Reversed.
MR. JUSTICE ROBERTS took no part in the consideration or decision of this case.
NOTES
[*] Together with No. 783, Wrightwood Dairy Co. v. United States, also on writ of certiorari, 314 U.S. 605, to the Circuit Court of Appeals for the Seventh Circuit.
[1] 79 Cong. Rec., 11135-6.
[2] 79 Cong. Rec., 11134-9. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/103347/ | 310 U.S. 88 (1940)
THORNHILL
v.
ALABAMA.
No. 514.
Supreme Court of United States.
Argued February 29, 1940.
Decided April 22, 1940.
CERTIORARI TO THE COURT OF APPEALS OF ALABAMA.
*90 Messrs. James J. Mayfield and Joseph A. Padway for petitioner.
Mr. William H. Loeb, Assistant Attorney General of Alabama, with whom Mr. Thos. S. Lawson, Attorney General, was on the brief, for respondent.
Freedom of speech and of assembly is not an absolute right. Gitlow v. New York, 268 U.S. 652.
*91 MR. JUSTICE MURPHY delivered the opinion of the Court.
Petitioner, Byron Thornhill, was convicted in the Circuit Court of Tuscaloosa County, Alabama, of the violation of § 3448 of the State Code of 1923.[1] The Code section reads as follows:
"Section 3448. Loitering or picketing forbidden. Any person or persons, who, without a just cause or legal excuse therefor, go near to or loiter about the premises or place of business of any other person, firm, corporation, or association of people, engaged in a lawful business, for the purpose, or with the intent of influencing, or inducing other persons not to trade with, buy from, sell to, have business dealings with, or be employed by such persons, firm, corporation, or association, or who picket the works or place of business of such other persons, firms, corporations, or associations of persons, for the purpose of hindering, delaying, or interfering with or injuring any lawful business or enterprise of another, shall be guilty of a *92 misdemeanor; but nothing herein shall prevent any person from soliciting trade or business for a competitive business."
The complaint against petitioner, which is set out in the margin,[2] is phrased substantially in the very words of the statute. The first and second counts charge that petitioner, without just cause or legal excuse, did "go near to or loiter about the premises" of the Brown Wood Preserving Company with the intent or purpose of influencing others to adopt one of enumerated courses of conduct. In the third count, the charge is that petitioner "did picket" the works of the Company "for the purpose of hindering, delaying or interfering with or injuring [its]lawful business." Petitioner demurred to the complaint on the grounds, among others, that § 3448 was repugnant to the Constitution of the United States in *93 that it deprived him of "the right of peaceful assemblage," "the right of freedom of speech," and "the right to petition for redress." The demurrer, so far as the record shows, was not ruled upon, and petitioner pleaded not guilty. The Circuit Court then proceeded to try the case without a jury, one not being asked for or demanded. At the close of the case for the State, petitioner moved to exclude all the testimony taken at the trial on the ground that § 3448 was violative of the Constitution of the United States.[3] The Circuit Court overruled the motion, found petitioner "guilty of Loitering and Picketing as charged in the complaint," and entered judgment accordingly. The judgment was affirmed by the Court of Appeals, which considered the constitutional question and sustained the section on the authority of two previous decisions in the Alabama courts.[4]O'Rourke v. Birmingham, 27 Ala. App. 133; 168 So. 206, cert. denied, 232 Ala. 355; 168 So. 209; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66; 66 So. 657. A petition for certiorari was denied by the Supreme Court of the State. The case is here on certiorari granted because of the importance of the questions presented. 308 U.S. 547.
The proofs consist of the testimony of two witnesses for the prosecution.[5] It appears that petitioner on the morning *94 of his arrest was seen "in company with six or eight other men" "on the picket line" at the plant of the Brown Wood Preserving Company. Some weeks previously a strike order had been issued by a Union, apparently affiliated with the American Federation of Labor, which had as members all but four of the approximately one hundred employees of the plant. Since that time a picket line with two picket posts of six to eight men each had been maintained around the plant twenty-four hours a day. The picket posts appear to have been on Company property, "on a private entrance for employees, and not on any public road." One witness explained that practically all of the employees live on Company property and get their mail from a post office on Company property and that the Union holds its meetings on Company property. No demand was ever made upon the men not to come on the property. There is no testimony indicating the nature of the dispute between the Union and the Preserving Company, or the course of events which led to the issuance of the strike order, or the nature of the efforts for conciliation.
The Company scheduled a day for the plant to resume operations. One of the witnesses, Clarence Simpson, who was not a member of the Union, on reporting to the plant on the day indicated, was approached by petitioner who told him that "they were on strike and did not want anybody to go up there to work." None of the other employees said anything to Simpson, who testified: "Neither Mr. Thornhill nor any other employee threatened me on the occasion testified to. Mr. Thornhill approached me in a peaceful manner, and did not put me in fear; he did not appear to be mad." "I then turned and went back to the house, and did not go to work." The other witness, J.M. Walden, testified: "At the time Mr. Thornhill and Clarence Simpson were talking to each other, there was no one else present, and I heard no harsh words and saw *95 nothing threatening in the manner of either man."[6] For engaging in some or all of these activities, petitioner was arrested, charged, and convicted as described.
First. The freedom of speech and of the press, which are secured by the First Amendment against abridgment by the United States, are among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a State.[7]
The safeguarding of these rights to the ends that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion is essential to free government. Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion. Abridgment of freedom of speech and of the press, however, impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government. Compare United States v. Carolene Products Co., 304 U.S. 144, 152-153n. Mere legislative preference for one rather than another means for combatting substantive evils, therefore, may well prove an inadequate *96 foundation on which to rest regulations which are aimed at or in their operation diminish the effective exercise of rights so necessary to the maintenance of democratic institutions. It is imperative that, when the effective exercise of these rights is claimed to be abridged, the courts should "weigh the circumstances" and "appraise the substantiality of the reasons advanced" in support of the challenged regulations. Schneider v. State, 308 U.S. 147, 161, 162.
Second. The section in question must be judged upon its face.
The finding against petitioner was a general one. It did not specify the testimony upon which it rested.[8] The charges were framed in the words of the statute and so must be given a like construction. The courts below expressed no intention of narrowing the construction put upon the statute by prior state decisions.[9] In these circumstance, there is no occasion to go behind the face of the statute or of the complaint for the purpose of determining whether the evidence, together with the permissible inferences to be drawn from it, could ever support a conviction founded upon different and more precise charges. "Conviction upon a charge not made would be sheer denial of due process." De Jonge v. Oregon, 299 U.S. 353, 362; Stromberg v. California, 283 U.S. 359, 367-368. The State urges that petitioner may not complain of the deprivation of any rights but his own. It would not follow that on this record petitioner could not complain of the sweeping regulations here challenged.
*97 There is a further reason for testing the section on its face. Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. Schneider v. State, 308 U.S. 147, 162-165; Hague v. C.I.O., 307 U.S. 496, 516; Lovell v. Griffin, 303 U.S. 444, 451. The cases when interpreted in the light of their facts indicate that the rule is not based upon any assumption that application for the license would be refused or would result in the imposition of other unlawful regulations.[10] Rather it derives from an appreciation of the character of the evil inherent in a licensing system. The power of the licensor against which John Milton directed his assault by his "Appeal for the Liberty of Unlicensed Printing" is pernicious not merely by reason of the censure of particular comments but by reasons of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion. See Near v. Minnesota, 283 U.S. 697, 713. One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it. Lovell v. Griffin, 303 U.S. 444; Hague v. C.I.O., 307 U.S. 496. A like threat is inherent in a penal statute, like that in question here, which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting *98 officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.[11] It is not any less effective or, if the restraint is not permissible, less pernicious than the restraint on freedom of discussion imposed by the threat of censorship.[12] An accused, after arrest and conviction under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him. Schneider v. State, 308 U.S. 147, 155, 162-163. Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression. Stromberg v. California, 283 U.S. 359, 368; Schneider v. State, 308 U.S. 147, 155, 162-163. Compare Lanzetta v. New Jersey, 306 U.S. 451.
Third. Section 3448 has been applied by the state courts so as to prohibit a single individual from walking slowly and peacefully back and forth on the public sidewalk in *99 front of the premises of an employer, without speaking to anyone, carrying a sign or placard on a staff above his head stating only the fact that the employer did not employ union men affiliated with the American Federation of Labor;[13] the purpose of the described activity was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees and thereby to induce such customers not to patronize the employer. O'Rourke v. Birmingham, 27 Ala. App. 133; 168 So. 206, cert. denied, 232 Ala. 355; 168 So. 209.[14] The statute as thus authoritatively construed and applied leaves room for no exceptions based upon either the number of persons engaged in the proscribed activity, the peaceful character of their demeanor, the nature of their dispute with an employer, or the restrained character and the accurateness of the terminology used in notifying the public of the facts of the dispute.
The numerous forms of conduct proscribed by § 3448 are subsumed under two offenses: the first embraces the activities of all who "without just cause or legal excuse" "go near to or loiter about the premises" of any person engaged in a lawful business for the purpose of influencing or inducing others to adopt any of certain enumerated courses of action; the second, all who "picket" the place of business of any such person "for the purpose of hindering, delaying or interfering with or injuring any lawful business or enterprise of another."[15] It is apparent *100 that one or the other of the offenses comprehends every practicable method whereby the facts of a labor dispute may be publicized in the vicinity of the place of business of an employer. The phrase "without just cause or legal excuse" does not in any effective manner restrict the breadth of the regulation; the words themselves have no ascertainable meaning either inherent or historical. Compare Lanzetta v. New Jersey, 306 U.S. 451, 453-455.[16] The courses of action, listed under the first offense, which an accused including an employee may not urge others to take, comprehends those which in many instances would normally result from merely publicizing, without annoyance or threat of any kind, the facts of a labor dispute. An intention to hinder, delay or interfere with a lawful business, which is an element of the second offense, likewise can be proved merely by showing that others reacted in a way normally expectable of some upon learning the facts of a dispute.[17] The vague contours of the *101 term "picket" are nowhere delineated.[18] Employees or others, accordingly, may be found to be within the purview of the term and convicted for engaging in activities identical with those proscribed by the first offense. In sum, whatever the means used to publicize the facts of a labor dispute, whether by printed sign, by pamphlet, by word of mouth or otherwise, all such activity without exception is within the inclusive prohibition of the statute so long as it occurs in the vicinity of the scene of the dispute.
Fourth. We think that § 3448 is invalid on its face.
The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent *102 punishment.[19] The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times.[20] The Continental Congress in its letter sent to the Inhabitants of Quebec (October 26, 1774) referred to the "five great rights" and said: "The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are ashamed or intimidated, into more honorable and just modes of conducting affairs." Journal of the Continental Congress, 1904 ed., vol. I, pp. 104, 108. Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.
In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. Hague v. C.I.O., 307 U.S. 496; Schneider v. State, 308 U.S. 147, 155, 162-63. See Senn v. Tile Layers Union, 301 U.S. 468, *103 478. It is recognized now that satisfactory hours and wages and working conditions in industry and a bargaining position which makes these possible have an importance which is not less than the interests of those in the business or industry directly concerned. The health of the present generation and of those as yet unborn may depend on these matters, and the practices in a single factory may have economic repercussions upon a whole region and affect widespread systems of marketing. The merest glance at state and federal legislation on the subject demonstrates the force of the argument that labor relations are not matters of mere local or private concern. Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society. The issues raised by regulations, such as are challenged here, infringing upon the right of employees effectively to inform the public of the facts of a labor dispute are part of this larger problem. We concur in the observation of Mr. Justice Brandeis, speaking for the Court in Senn's case (301 U.S. at 478): "Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution."
It is true that the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist.[21] This is but an instance *104 of the power of the State to set the limits of permissible contest open to industrial combatants. See Mr. Justice Brandeis in 254 U.S. at 488. It does not follow that the State in dealing with the evils arising from industrial disputes may impair the effective exercise of the right to discuss freely industrial relations which are matters of public concern. A contrary conclusion could be used to support abridgment of freedom of speech and of the press concerning almost every matter of importance to society.
The range of activities proscribed by § 3448, whether characterized as picketing or loitering or otherwise, embraces nearly every practicable, effective means whereby those interested including the employees directly affected may enlighten the public on the nature and causes of a labor dispute. The safeguarding of these means is essential to the securing of an informed and educated public opinion with respect to a matter which is of public concern. It may be that effective exercise of the means of advancing public knowledge may persuade some of those reached to refrain from entering into advantageous relations with the business establishment which is the scene of the dispute. Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the *105 clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion.[22] We hold that the danger of injury to an industrial concern is neither so serious nor so imminent as to justify the sweeping proscription of freedom of discussion embodied in § 3448.
The State urges that the purpose of the challenged statute is the protection of the community from the violence and breaches of the peace, which, it asserts, are the concomitants of picketing. The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted. But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter. We are not now concerned with picketing en masse or otherwise conducted which might occasion such imminent and aggravated danger to these interests as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger. Compare American Foundries v. Tri-City Council, 257 U.S. 184, 205. Section 3448 in question here does not aim specifically at serious encroachments on these interests and does not evidence any such care in balancing these interests against the interest of the community and that of the individual in freedom of discussion on matters of public concern.
It is not enough to say that § 3448 is limited or restricted in its application to such activity as takes place at the scene of the labor dispute. "[The] streets are *106 natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. 147, 161, 163; Hague v. C.I.O., 307 U.S. 496, 515-16.[23] The danger of breach of the peace or serious invasion of rights of property or privacy at the scene of a labor dispute is not sufficiently imminent in all cases to warrant the legislature in determining that such place is not appropriate for the range of activities outlawed by § 3448.
Reversed.
MR. JUSTICE McREYNOLDS is of opinion that the judgment below should be affirmed.
NOTES
[1] Petitioner was first charged and convicted in the Inferior Court of Tuscaloosa County and sentenced to imprisonment for fifty-nine days in default of payment of a fine of one hundred dollars and costs. Upon appeal to the Circuit Court, another complaint was filed and a trial de novo was had pursuant to the local practice. The Circuit Court sentenced petitioner, upon his conviction, to imprisonment for seventy-three days in default of payment of a fine of one hundred dollars and costs.
[2] "1. The State of Alabama, by its Solicitor, complains of Byron Thornhill that, within twelve months before the commencement of this prosecution he did without just cause or legal excuse therefor, go near to or loiter about the premises or place of business of another person, firm, corporation, or association of people, to-wit: the Brown Wood Preserving Company, Inc., a corporation, engaged in a lawful business, for the purpose or with the intent of influencing or inducing other persons not to trade with, buy from, sell to, have business dealings with, or be employed by the said Brown Wood Preserving Company, Inc., a corporation, for the purpose of hindering, delaying, or interfering with or injuring the lawful business or enterprise of the said Brown Wood Preserving Company, Inc., a corporation.
"2. [The second count is identical with the first, except that the last clause, charging a purpose to hinder, delay, or interfere, etc., with the lawful business of the Preserving Company, is omitted.]
"3. The State of Alabama, by its Solicitor, complains of Byron Thornhill that, within twelve months before the commencement of this prosecution he did picket the works or place of business of another person, firm, corporation, or association of people, to-wit, the Brown Wood Preserving Company, Inc., a corporation, for the purpose of hindering, delaying, or interfering with or injuring the lawful business or enterprise of the said Brown Wood Preserving Company, Inc., a corporation."
[3] The petitioner also moved to exclude the testimony on the ground that it was insufficient to sustain a conviction. Upon being asked by the Court whether he insisted on this ground, however, counsel for petitioner stated that the only question he wanted to raise was the constitutionality of the statute.
[4] The Court of Appeals stated: "It seems clear enough that the evidence adduced upon the trial was sufficient to bring appellant's actions, for which he was being prosecuted, within the purview of the prohibition implied in said Statute.
"So, as conceded by able counsel here representing appellant, `the only question involved in this appeal is the constitutionality vel non of Section 3448 of the Code of Alabama of 1923.'"
[5] No evidence was offered on behalf of petitioner.
[6] Simpson and Walden are not in entire accord with respect to the number of persons present during the conversation between Simpson and petitioner. A possible inference from Simpson's testimony, considered by itself, is that petitioner was in the company of six or eight others when the conversation took place. This difference is not material in our view of the case.
[7] Schneider v. State, 308 U.S. 147, 160; Lovell v. Griffin, 303 U.S. 444, 450; De Jonge v. Oregon, 299 U.S. 353; Grosjean v. American Press Co., 297 U.S. 233, 244; Near v. Minnesota, 283 U.S. 697, 707; Stromberg v. California, 283 U.S. 359, 368; Gitlow v. New York, 268 U.S. 652, 666. See Palko v. Connecticut, 302 U.S. 319, 326-327.
[8] The trial court merely found petitioner "guilty of Loitering and Picketing as charged in the complaint."
[9] The Court of Appeals determined merely that the evidence was sufficient to support the conviction under § 3448. See note 4, supra. It then sustained the judgment in reliance upon O'Rourke v. Birmingham, 27 Ala. App. 133; 168 So. 206, cert. denied, 232 Ala. 355; 168 So. 209; and Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66; 66 So. 657.
[10] Compare Electric Bond Co. v. Comm'n, 303 U.S. 419; Smith v. Cahoon, 283 U.S. 553, 562; Gundling v. Chicago, 177 U.S. 183, 186; Lehon v. Atlanta, 242 U.S. 53, 55, 56; Hall v. Geiger-Jones Co., 242 U.S. 539, 553, 554.
[11] The record in the case at bar permits the inference that, while picketing had been carried on for several weeks, with six to eight men at each of two picket posts, § 3448 was not enforced against anyone other than petitioner, the Union President, and then only after his conversation with Simpson who thereupon returned home rather than report for work.
[12] A distinguished commentator has observed that "the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications." 2 Cooley, Const. Lim., 8th ed., p. 885. See Madison's Report on the Virginia Resolutions, 4 Ell. Deb., 2d ed., 1876, p. 569; Address on the Conduct of the Maryland Convention of 1788, 2 id., p. 552.
[13] The employer in fact had locked out its union stagehands and was working others not regularly employed as stagehands in admitted violation of the National Industrial Recovery Act.
[14] Accused there asserted that the application of § 3448 to the particular facts of his case deprived him of rights guaranteed to him by the Fourteenth Amendment. The Court of Appeals passed upon this constitutional question and decided it adversely to the contentions of accused.
[15] There is a proviso that "nothing herein shall prevent any person from soliciting trade or business for a competitive business."
[16] So far as the phrase may have been given meaning by the state courts it apparently grants authority to the court and the jury to consider defensive matter brought forward by the accused, depending for its sufficiency not upon rules of general application but upon the peculiar facts of each case. See Owens v. State, 74 Ala. 401; Bailey v. State, 161 Ala. 75; 49 So. 886; Folmar v. State, 19 Ala. App. 435; 97 So. 768. Compare O'Rourke v. Birmingham, 27 Ala. App. 133; 168 So. 206, cert. denied, 232 Ala. 355; 168 So. 209.
[17] The only direct evidence in the case at bar to show that the activity of petitioner was accompanied by the necessary intent or purpose is the fact that one other employee, after talking with petitioner, refrained from reporting for work as planned. There is evidence here that the other employee was acquainted with the facts prior to his conversation with petitioner. The State concedes, however, that under § 3448 everyone must be deemed to intend the natural and probable consequences of his acts. See Jacobs v. State, 17 Ala. App. 396; 85 So. 837; Reed v. State, 18 Ala. App. 371; 92 So. 513; Weeks v. State, 24 Ala. App. 198; 132 So. 870, cert. denied, 222 Ala. 442; 132 So. 871; Worrell v. State, 24 Ala. App. 313; 136 So. 737, cert. denied, 223 Ala. 425; 136 So. 738.
[18] See Hellerstein, Picketing Legislation and the Courts (1931), 10 No. Car. L. Rev. 158, 186n.: "A picketer may: (1) Merely observe workers or customers. (2) Communicate information, e.g., that a strike is in progress, making either true, untrue or libelous statements. (3) Persuade employees or customers not to engage in relations with the employer: (a) through the use of banners, without speaking, carrying true, untrue or libelous legends; (b) by speaking, (i) in a calm, dispassionate manner, (ii) in a heated, hostile manner, (iii) using abusive epithets and profanity, (iv) yelling loudly, (v) by persisting in making arguments when employees or customers refuse to listen; (c) by offering money or similar inducements to strike breakers. (4) Threaten employees or customers: (a) by the mere presence of the picketer; the presence may be a threat of, (i) physical violence, (ii) social ostracism, being branded in the community as a "scab," (iii) a trade or employees' boycott, i.e., preventing workers from securing employment and refusing to trade with customers, (iv) threatening injury to property; (b) by verbal threats. (5) Assaults and use of violence. (6) Destruction of property. (7) Blocking of entrances and interference with traffic.
"The picketer may engage in a combination of any of the types of conduct enumerated above. The picketing may be carried on singly or in groups; it may be directed to employees alone or to customers alone or to both. It may involve persons who have contracts with the employer or those who have not or both."
[19] Stromberg v. California. 283 U.S. 359; Near v. Minnesota, 283 U.S. 697; Lovell v. Griffin, 303 U.S. 444; Hague v. C.I.O., 307 U.S. 496; Schneider v. State, 308 U.S. 147.
[20] See Duniway, The Development of Freedom of the Press in Massachusetts, p. 123 et seq.; Tyler, Literary History of the American Revolution, passim; 2 Bancroft, History of the United States, p. 261; Schofield, Freedom of the Press in the United States (1914), 9 Proc. Am. Sociol. Soc. 67, 76, 80.
[21] See, e.g., Senn v. Tile Layers Union, 301 U.S. 468; Ethyl Gasoline Corp. v. United States, 309 U.S. 436; National Labor Relations Board v. Newport News Co., 308 U.S. 241; West Coast Hotel Co. v. Parrish, 300 U.S. 379; Nebbia v. New York, 291 U.S. 502; Dorchy v. Kansas, 272 U.S. 306; Eastern States Retail Lumber Dealers Assn. v. United States, 234 U.S. 600; Aikens v. Wisconsin, 195 U.S. 194; Holden v. Hardy, 169 U.S. 366.
[22] See Mr. Justice Holmes in 249 U.S. at 52; 250 U.S. at 630.
[23] The fact that the activities for which petitioner was arrested and convicted took place on the private property of the Preserving Company is without significance. Petitioner and the other employees were never treated as trespassers, assuming that they could be where the Company owns such a substantial part of the town. See p. 94, supra. And § 3448, in any event, must be tested upon its face. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/105487/ | 353 U.S. 87 (1957)
NATIONAL LABOR RELATIONS BOARD
v.
TRUCK DRIVERS LOCAL UNION NO. 449, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L.
No. 103.
Supreme Court of United States.
Argued January 17, 22, 1957.
Decided April 1, 1957.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
*88 Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Theophil C. Kammholz and Stephen Leonard.
Thomas P. McMahon argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed by Peter T. Beardsley and Helen F. Humphrey for the American Trucking Associations, Inc., and Kenneth C. Royall and Frank C. Fisher for the Linen & Credit Exchange et al.
Briefs of amici curiae supporting petitioner were filed by George O. Bahrs, J. Paul St. Sure, Robert Littler and J. Hart Clinton for the Bay Area Council of Bakery Operators et al., and Gerard D. Reilly for the Union Employers Section, Printing Industry of America, Inc.
*89 MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question presented by this case is whether the non-struck members of a multi-employer bargaining association committed an unfair labor practice when, during contract negotiations, they temporarily locked out their employees as a defense to a union strike against one of their members which imperiled the employers' common interest in bargaining on a group basis.
The National Labor Relations Board determined that resort to the temporary lockout was not an unfair labor practice in the circumstances.[1] The Court of Appeals for the Second Circuit reversed.[2] This Court granted certiorari[3] to consider this important question of the construction of the amended National Labor Relations Act,[4] and also to consider an alleged conflict with decisions of Courts of Appeals of other circuits.[5]
Eight employers in the linen supply business in and around Buffalo, New York, comprise the membership of the Linen and Credit Exchange. For approximately 13 years, the Exchange and the respondent Union, representing the truck drivers employed by the members, bargained on a multi-employer basis and negotiated successive collective bargaining agreements signed by the Union and by the eight employers. Sixty days before such an agreement was to expire on April 30, 1953, the *90 Union gave notice of its desire to open negotiations for changes.[6]
The Exchange and the Union began negotiations some time before April 30, but the negotiations carried past that date and were continuing on May 26, 1953, when the Union put into effect a "whipsawing" plan[7] by striking and picketing the plant of one of the Exchange members, Frontier Linen Supply, Inc. The next day, May 27, the remaining seven Exchange members laid off their truck drivers after notifying the Union that the layoff action was taken because of the Frontier strike, advising the Union that the laid-off drivers would be recalled if the Union withdrew its picket line and ended the strike. Negotiations continued without interruption, however, until a week later when agreement was reached upon a new contract which the Exchange members and the Union approved and signed. Thereupon the Frontier strike was ended, the laid-off drivers were recalled, and normal operations were resumed at the plants of all Exchange members.
The Union filed with the National Labor Relations Board an unfair labor practice charge against the seven employers, alleging that the temporary lockout interfered with its rights guaranteed by § 7, thereby violating §§ 8 (a) (1) and (3) of the Act.[8] A complaint issued, and, after hearing, a trial examiner found the employers guilty of the unfair labor practice charged. The Board overruled the trial examiner, finding that "the more *91 reasonable inference is that, although not specifically announced by the Union, the strike against the one employer necessarily carried with it an implicit threat of future strike action against any or all of the other members of the Association," with the "calculated purpose" of causing "successive and individual employer capitulations."[9] The Board therefore found that "in the absence of any independent evidence of antiunion motivation,. . . the Respondent's [sic] action in shutting their plants until termination of the strike at Frontier was defensive and privileged in nature, rather than retaliatory and unlawful."[10] The Board, citing Leonard v. Labor Board, 205 F.2d 355, concluded "that a strike by employees against one employer-member of a multiemployer bargaining unit constitutes a threat of strike action against the other employers, which threat, per se, constitutes the type of economic or operative problem at the plants of the nonstruck employers which legally justifies their resort to a temporary lockout of employees."[11]
*92 The Court of Appeals agreed "that the Board reasonably inferred" a threat of strike action against the seven employers because there were "no peculiar facts concerning the Union's relations with that single member."[12] The Court of Appeals thus implicitly found that the only reason for the strike against Frontier was the refusal of the Exchange to meet the Union's demands. But the court held that a temporary lockout of employees on a "mere threat of, or in anticipation of, a strike"[13] could be justified only if there were unusual economic hardship, and because "the stipulated facts show no economic justification for the lockout, . . . the lockout of non-striking employees constituted an interference with their statutory right to engage in concerted activity in violation of § 8 (a) (1) of the Act, and also constituted discrimination in the hire and tenure of employment of the employees because of the Union's action, thereby discouraging membership in the Union in violation of § 8 (a) (3) of the Act."[14]
Although, as the Court of Appeals correctly noted, there is no express provision in the law either prohibiting or authorizing the lockout, the Act does not make the lockout unlawful per se. Legislative history of the Wagner Act, 49 Stat. 449, indicates that there was no intent to prohibit strikes or lockouts as such.[15] The unqualified use of the term "lock-out" in several sections of the Taft-Hartley Act[16] is statutory recognition that there are circumstances *93 in which employers may lawfully resort to the lockout as an economic weapon. This conclusion is supported by the legislative history of the Act.[17]
We are not concerned here with the cases in which the lockout has been held unlawful because designed to frustrate organizational efforts, to destroy or undermine bargaining representation, or to evade the duty to bargain.[18] Nor are we called upon to define the limits of the legitimate use of the lockout.[19] The narrow question to be decided is whether a temporary lockout may lawfully be used as a defense to a union strike tactic which threatens the destruction of the employers' interest in bargaining on a group basis.
The Court of Appeals rejected the preservation of the integrity of the multi-employer bargaining unit as a justification for an employer lockout.[20] The court founded this conclusion upon its interpretation of the Taft-Hartley Act and its legislative history. After stating that "[m]ulti-employer bargaining has never received the express sanction of Congress," the court reasoned that *94 because at the time of the enactment of the Taft-Hartley Act the Board had never "gone to the extreme lengths to which it now seeks to go in order to maintain the `stability of the employer unit,' " Congress cannot be said to have given legislative approval to the present Board action.[21] The court concluded that "Congress must have intended that such a radical innovation be left open for consideration by the joint committee it set up under § 402 of the Act to study, among other things, `the methods and procedures for best carrying out the collective-bargaining processes, with special attention to the effects of industry-wide or regional bargaining upon the national economy.' "[22]
We cannot subscribe to this interpretation. Multi-employer bargaining long antedated the Wagner Act, both in industries like the garment industry, characterized by numerous employers of small work forces, and in industries like longshoring and building construction, where workers change employers from day to day or week to week. This basis of bargaining has had its greatest expansion since enactment of the Wagner Act because employers have sought through group bargaining to *95 match increased union strength.[23] Approximately four million employees are now governed by collective bargaining agreements signed by unions with thousands of employer associations.[24] At the time of the debates on the Taft-Hartley amendments, proposals were made to limit or outlaw multi-employer bargaining. These proposals failed of enactment. They were met with a storm of protest that their adoption would tend to weaken and not strengthen the process of collective bargaining and would conflict with the national labor policy of promoting industrial peace through effective collective bargaining.[25]
The debates over the proposals demonstrate that Congress refused to interfere with such bargaining because there was cogent evidence that in many industries the multi-employer bargaining basis was a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining. The inaction of Congress with respect to multi-employer *96 bargaining cannot be said to indicate an intention to leave the resolution of this problem to future legislation. Rather, the compelling conclusion is that Congress intended "that the Board should continue its established administrative practice of certifying multi-employer units, and intended to leave to the Board's specialized judgment the inevitable questions concerning mutli-employer bargaining bound to arise in the future."[26]
Although the Act protects the right of the employees to strike in support of their demands, this protection is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide.[27] Conflict may arise, for example, between the right to strike and the interest of small employers in preserving multi-employer bargaining as a means of bargaining on an equal basis with a large union and avoiding the competitive disadvantages resulting from nonuniform contractual terms. The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.[28]
*97 The Court of Appeals recognized that the National Labor Relations Board has legitimately balanced conflicting interests by permitting lockouts where economic hardship was shown.[29] The court erred, however, in too narrowly confining the exercise of Board discretion to the cases of economic hardship. We hold that in the circumstances of this case the Board correctly balanced the conflicting interests in deciding that a temporary lockout to preserve the multi-employer bargaining basis from the disintegration threatened by the Union's strike action was lawful.
Reversed.
MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.
NOTES
[1] 109 N. L. R. B. 447.
[2] 231 F.2d 110.
[3] 352 U.S. 818.
[4] 61 Stat. 136, 29 U.S. C. § 141 et seq.
[5] Labor Board v. Continental Baking Co., 221 F.2d 427 (C. A. 8th Cir.); Labor Board v. Spalding Avery Lumber Co., 220 F.2d 673 (C. A. 8th Cir.); Leonard v. Labor Board, 197 F.2d 435, 205 F.2d 355 (C. A. 9th Cir.); Morand Bros. Beverage Co. v. Labor Board, 190 F.2d 576 (C. A. 7th Cir.).
[6] The contract contained an automatic renewal clause requiring notice of a desire to change the contract to be given 60 days before the expiration date. The notice was also in conformity with § 8 (d) of the Act. 61 Stat. 140, 29 U.S. C. § 158.
[7] "Whipsawing" is the process of striking one at a time the employer members of a multi-employer association.
[8] Section 7 provides in pertinent part:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." 61 Stat. 140, 29 U.S. C. § 157.
Section 8 provides in pertinent part:
"(a) It shall be an unfair labor practice for an employer
"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
.....
"(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . ." 61 Stat. 140, 29 U.S. C. § 158.
[9] 109 N. L. R. B., at 448.
[10] 109 N. L. R. B., at 448. The Board relied upon the decision of the Court of Appeals for the Ninth Circuit in Leonard v. Labor Board, 205 F.2d 355, 357-358, wherein the court stated: ". . . the right of the employers to lock out temporarily all the employees is no more than equal to the right of the union of all the employees to call out the employees of one after another of the . . . [employers] in the whipsawing manner . . . ."
[11] 109 N. L. R. B., at 448-449.
[12] 231 F.2d, at 112.
[13] Id., at 113.
[14] Id., at 118.
[15] See, e. g., explanation of the bill by Senator Walsh, Chairman of the Senate Committee on Education and Labor, 79 Cong. Rec. 7673.
[16] 61 Stat. 140, 29 U.S. C. § 158 (d) (4) (no resort to "strike or lock-out" during 60-day notice period); 61 Stat. 153, 29 U.S. C. § 173 (c) (Director of Mediation Service to seek to induce parties to settle dispute peacefully "without resort to strike, lock-out, or other coercion"); 61 Stat. 155, 29 U.S. C. § 176 (appointment of board of inquiry by President when "threatened or actual strike or lock-out" creates a national emergency); 61 Stat. 155, 29 U.S. C. § 178 (power to enjoin "strike or lock-out" in case of national emergency).
[17] H. R. Rep. No. 245, 80th Cong., 1st Sess. 21-22, 70, 82; S. Rep. No. 105, 80th Cong., 1st Sess. 24; S. Rep. No. 105, Pt. 2, 80th Cong., 1st Sess. 21; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 34-35. See also, e. g., 93 Cong. Rec. 1827-1828, 3835.
[18] E. g., Labor Board v. Wallick, 198 F.2d 477; Labor Board v. Somerset Classics, 193 F.2d 613; Olin Industries v. Labor Board, 191 F.2d 613; cf. Associated Press v. Labor Board, 301 U.S. 103.
[19] We thus find it unnecessary to pass upon the question whether, as a general proposition, the employer lockout is the corollary of the employees' statutory right to strike.
[20] As previously noted, the Board decision is based in part on a finding that the preservation of employer solidarity justifies a lockout as a defense to a whipsaw strike.
[21] 231 F.2d, at 117-118.
[22] Id., at 118.
The opinion of the Court of Appeals may be interpreted as rejecting employer solidarity as a justification for a lockout on the ground that the Union strike constituted a withdrawal by the Union from the multi-employer bargaining unit. The Court of Appeals vigorously argued that a union should be accorded the same freedom of voluntary withdrawal from a multi-employer bargaining unit as the Board has accorded to individual employers. But that question is not presented by this case, and we expressly reserve decision until it is properly before us. The facts here clearly show that the Union strike was not an attempt to withdraw from the multi-employer bargaining unit. On the contrary, the Union continued to carry on negotiations with the Exchange until an agreement was reached and signed.
[23] Bahrs, The San Franciso Employers' Council; Chamberlain, Collective Bargaining, 178-179, 180, 182; Freidin, The Taft-Hartley Act and Multi-Employer Bargaining, 4-5; Garrett and Tripp, Management Problems Implicit In Multi-Employer Bargaining, 2-3; Kerr and Randall, Collective Bargaining in the Pacific Coast Pulp and Paper Industry, 3-4; Pierson, Multi-Employer Bargaining, 35-36; Wolman, Industry-Wide Bargaining.
[24] 79 Monthly Labor Review 805 (1956).
Based on collective bargaining agreements on file with the Bureau of Labor Statistics in 1951, approximately 80% of the unionized employees in the laundry industry were represented under multi-employer bargaining. B. L. S. Rep. No. 1 (1953), Collective Bargaining Structures: The Employer Bargaining Unit, 10.
[25] Hearings before Senate Committee on Labor and Public Welfare on S. 55 et al., 80th Cong., 1st Sess. 427-428, 1012-1017, 1032-1037, 1055-1057, 1162-1165, 2018-2019, 2370-2371; S. Rep. No. 105, pt. 2, 80th Cong., 1st Sess. 6-8; Hearings before House Committee on Education and Labor on H. R. 8 et al., 80th Cong., 1st Sess. 552-553, 1552-1554, 3024-3026; 93 Cong. Rec. 1834-1844, 4030-4031, 4443-4444, 4581-4587, 4674-4676.
[26] 231 F.2d, at 121 (dissenting opinion).
[27] Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333; Labor Board v. Continental Baking Co., 221 F.2d 427; Labor Board v. Spalding Avery Lumber Co., 220 F.2d 673; Leonard v. Labor Board, 197 F.2d 435, 205 F.2d 355; Morand Bros. Beverage Co. v. Labor Board, 190 F.2d 576; Betts Cadillac Olds, Inc., 96. N. L. R. B. 268; International Shoe Co., 93 N. L. R. B. 907; Duluth Bottling Association, 48 N. L. R. B. 1335.
[28] Labor Board v. Babcock & Wilcox Co., 351 U.S. 105; Republic Aviation Corp. v. Labor Board, 324 U.S. 793; Phelps Dodge Corp. v. Labor Board, 313 U.S. 177.
In Phelps Dodge, the Court said:
". . . There is an area plainly covered by the language of the Act and an area no less plainly without it. But in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review. Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy. On the other hand, the power with which Congress invested the Board implies responsibility the responsibility of exercising its judgment in employing the statutory powers." 313 U.S., at 194.
[29] Betts Cadillac Olds, Inc., 96 N. L. R. B. 268; International Shoe Co., 93 N. L. R. B. 907; Duluth Bottling Association, 48 N. L. R. B. 1335. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1626261/ | 464 So. 2d 123 (1985)
Willie C. MARTIN and wife, Ida R. Martin
v.
BOARD OF ADJUSTMENT OF the CITY OF ENTERPRISE.
Civ. 4420.
Court of Civil Appeals of Alabama.
January 30, 1985.
*124 Henry D. Binford of Nomberg & McCabe, Daleville, for appellants.
Joe S. Pittman of Pittman, Whittaker & Pittman, Enterprise, for appellee.
HOLMES, Judge.
This is a zoning case.
The Board of Adjustment of the City of Enterprise, Alabama, rejected the property owners' request for a zoning variance; appeal was taken to the Circuit Court of Coffee County. After a trial de novo, the trial court denied the request for the zoning variance.
From this decision, the property owners appeal, contending that the trial court's denial of the request for a variance constituted palpable error. We disagree and affirm.
Viewing the record with the attendant presumptions of correctness, the following is revealed.
The property owners, Willie and Ida Martin, wanted to construct a carport on their property. The carport would be attached to the east side of the Martins' home and would extend to the property line on that side of the lot.
There was evidence that the Martins discussed the plans with the adjacent landowners and acquired their approval for the construction.
The Martins then sought to obtain a building permit from the city of Enterprise. There was evidence that Mr. Martin was told by city officials that a clearance of seven feet would be required between his constructed carport and his property line in order to comply with the zoning laws. Mr. Martin denied that he was told anything about a set-back requirement.
There was also testimony that Mr. Martin told the city officials that he would have a clearance of eleven to twelve feet between the carport and the property line. Mr. Martin stated that he was misunderstood.
A building permit was granted to the Martins and construction was begun. Later, after partial construction but prior to completion of the carport, a complaint was filed, alleging that the construction was in violation of the zoning ordinances, and the Martins were ordered to stop construction.
After a variance request was rejected by the board of adjustment, a trial de novo *125 was held, in which the trial court denied the variance request.
As stated, the Martins dispositively contend that the denial of the variance request by the trial court constituted palpable error because of the "unnecessary hardship" that such denial has caused.
We note that the city of Enterprise has a zoning ordinance that clearly requires a seven foot "clearance"; it is not contended otherwise.
Under § 11-52-80(d)(3), Ala.Code (1975), the board of adjustment has the power
"(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done."
We state at the outset that the board of adjustment clearly has the power to grant a variance; however, there is no authority that a variance can be granted in a private agreement between landowners. Therefore, the permission of the adjacent landowners, in this instance, has no effect on the local zoning laws.
The zoning laws are an exercise of a city's police power and are implemented for the protection of the public welfare. Walls v. City of Guntersville, 253 Ala. 480, 45 So. 2d 468 (1950).
We have stated that, when a variance is at issue, the primary consideration is whether a literal enforcement of a zoning ordinance will result in unnecessary hardship. Pipes v. Adams, 381 So. 2d 86 (Ala.Civ.App.1980).
However, in Priest v. Griffin, 284 Ala. 97, 101, 222 So. 2d 353, 357 (1969), quoting from Nelson v. Donaldson, 255 Ala. 76, 84, 50 So. 2d 244, 251 (1951), the supreme court stated "[v]ariances from the terms of the zoning ordinance should be permitted only under peculiar and exceptional circumstances. Hardship alone is not sufficient."
We note here that there was evidence that the Martins were told before construction was started that there was a required set-back clearance of seven feet. Under these facts, any hardship caused could be considered self-inflicted.
When a hardship is self-inflicted or self-created, there is no basis for a claim that a variance should be granted. Thompson, Weinman & Company v. Board of Adjustment, 275 Ala. 278, 154 So. 2d 36 (1963).
In this instance, the evidence was presented ore tenus, and the findings of the court are presumed correct and will not be set aside except for plain and palpable abuse of discretion. Sanders v. Board of Adjustment, 445 So. 2d 909 (Ala.Civ.App. 1983).
Here, there was evidence that the zoning ordinance required a set-back clearance of seven feet, that the Martins were made aware of the ordinance, and that the constructed portion of the carport was in violation of the ordinance.
Under these facts, we cannot say that the zoning ordinance worked an unnecessary hardship on the Martins, and, therefore, we find no palpable error by the trial court in denying the requested variance.
This case is due to be and is affirmed.
AFFIRMED.
WRIGHT, P.J., and BRADLEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626268/ | 17 Mich. App. 73 (1969)
169 N.W.2d 163
PEOPLE
v.
SPALDING
Docket No. 4,888.
Michigan Court of Appeals.
Decided April 22, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Vincent F. Stapley, Assistant Prosecuting Attorney, for the people.
Jerome A. Susskind, for defendant.
BEFORE: LESINSKI, C.J., and T.M. BURNS and J.J. KELLEY,[*] JJ.
PER CURIAM:
Defendant appeals his convictions of escape from prison (CLS 1961, § 750.193 [Stat Ann 1962 Rev § 28.390]), and of being a second offender (CLS 1961, § 769.10 [Stat Ann 1954 Rev § 28.1082]).
Preliminary examination was set for January 18, 1966, but on that date the judge delayed the examination at the request of the prosecution because a material witness was ill. The examination was held on October 10, 1966.
Defendant was duly convicted by the jury of escape from prison. Immediately after rendition of that verdict, defendant moved for a new jury on the ground that the jury which had convicted him of *75 escape would be unduly prejudiced against him. After the court denied defendant's motion, the prosecution read to the jury the supplemental information charging that defendant was a second felony offender. The jury found defendant to be a second offender.
Defendant urges three grounds for reversal: (1) That the denial of a separate jury on the second offender charge deprived him of trial by an impartial jury, (2) that the delay in examination deprived him of a speedy trial, and (3) that the trial court failed to instruct on intent and on the effect of duress.
The recent opinion by this Court on rehearing in People v. Stratton (1968), 13 Mich. App. 350, exactly parallels the facts of this case as to handling of the second offender charge, and controls on that issue. This Court therein approved the procedure used in this case, noting that other states follow basically the same procedure, which does not violate due process as required of the states through the Fourteenth Amendment. Burgett v. Texas (1967), 389 U.S. 109 (88 S. Ct. 258, 19 L. Ed. 2d 319); Spencer v. Texas (1967), 385 U.S. 554 (87 S. Ct. 648, 17 L. Ed. 2d 606). We there held that a separate jury should be granted only when, in the discretion of the trial judge, it appears that some special prejudice against the defendant probably will be created in the minds of the jury by the peculiar facts of the substantive charge they have just heard. Here defendant alleges no such prejudice and none appears in the record. The trial judge properly exercised his discretion in denying a separate jury.
The right to a speedy trial is a constitutional right, but it has no absolute standard. The requirement is that the trial commence within a reasonable time given all the circumstances. Hicks v. Judge of Recorder's Court of Detroit (1926), 236 Mich. 689. Since *76 circumstances can vary widely from case to case, the statute, CL 1948, § 766.7 (Stat Ann 1954 Rev § 28.925), vests discretion in the trial judge to decide when justice requires that a trial be delayed. In this case, the record shows that the examination was delayed because a prosecution witness had had an operation and was hospitalized. At trial he testified that he had assisted in returning defendant to prison after the escape. No abuse of discretion appears. Moreover, defendant has not shown any prejudice to himself or his case as a result of the delay. People v. Donald D. Williams (1965), 2 Mich. App. 91, 95.
At trial no one produced any evidence from which it could even be inferred that defendant was coerced, or under duress, or otherwise left prison involuntarily. Lack of a jury question obviated necessity for an instruction on duress, or on specific intent which is not an element of the offense of escape.
Affirmed.
NOTES
[*] Circuit Judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626287/ | 169 N.W.2d 56 (1969)
Melvin CARLSON, et al., Respondents,
v.
Edward HAMPL, Defendant and Third-Party-Plaintiff, Appellant,
v.
Charles MAZZOLA, et al., Third-Party-Defendants, Respondents.
No. 41695.
Supreme Court of Minnesota.
June 27, 1969.
*57 Taylor Law Firm, by Elmer W. Foster, Minneapolis, for appellant.
Daniel T. Cody, St. Paul, for Carlson.
Robert T. Stich, Minneapolis, for Mazzola.
Heard before KNUTSON, C. J., and MURPHY, ROGOSHESKE, SHERAN, and PETERSON, JJ.
OPINION
SHERAN, Justice.
Appeal from a judgment of the district court entered pursuant to an order granting a motion for summary judgment.
On May 4, 1966, Mayme Carlson sustained injuries when she fell down the basement stairway of a private dwelling located at 1460 East Nevada Street in St. Paul, Minnesota. For present purposes we will assume that she fell because the top step in the stairway had a riser only 5½ inches in height as compared with the other steps in the stairway which were equipped with risers 8 inches high and, in addition, because the stairway lacked a handrail as required by the St. Paul Building Code. An action for the damages resulting was brought against Edward Hampl, who had acquired the premises by deed on April 7, 1966, and had moved into the house on the 25th day of that month. Defendant Hampl was aware of the absence of the handrail at the time he purchased the home but apparently did not notice the fact that the riser for the first step leading into the basement was 2½ inches shorter than the other steps, although he had been up and down the stairway several times prior to the occurrence of the accident. Third-party proceedings were brought by Hampl to obtain contribution or indemnity from Charles Mazzola and Janice Olga Mazzola, who had sold the house to him. Charles Mazzola had constructed the stairway himself and knew the relevant facts pertaining to the riser and the handrail requirement of the building code. The Mazzolas interposed an answer to the third-party complaint denying liability and moved for summary judgment on the basis of answers to interrogatories and depositions establishing the facts. The motion for summary judgment was granted. Hampl appeals.
In our opinion, this decision of the trial court must be affirmed. The general rule is that a prior owner of real estate is not liable for injury to a purchaser or a third person caused by the condition of the premises existing at the time the purchaser took possession. Annotation, 8 A.L.R. 2d 218; Copfer v. Golden, 135 Cal. App. 2d 623, 288 P.2d 90.
As of April 25, 1966, Hampl was in complete and exclusive possession of the premises where the accident occurred. Any right to possession of the premises on the part of the Mazzolas terminated April 7, 1966, *58 the date on which the sale of the real estate was consummated.
Appellant contends that an exception should be made to the general rule in this case on the basis of Restatement, Torts (2d) § 353, which provides:
"(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if
"(a) the vendee does not know or have reason to know of the condition or the risk involved, and
"(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.
"(2) If the vendor actively conceals the condition, the liability stated in subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions."
While this court has not committed itself to the view of the Restatement in this respect,[1] the exception would be inapplicable under the facts of this case. If there was a risk involved by reason of the shortness of the riser and the absence of the handrail, the condition was one which Hampl as vendee knew or should have known about before the accident occurred.[2] His actual knowledge of the absence of the handrail is demonstrated irrefutably by the fact that he had ordered such a rail on April 30, 1966. Although actual knowledge of the shortness of the riser was not demonstrated, its shortness was apparent upon observation and it is clear that Hampl had traversed the steps a number of times before the accident happened. Hampl's knowledge of the situation relieves the Mazzolas of liability under the rule embodied in § 353.[3] We therefore affirm.
Affirmed.
NOTES
[1] We applied Restatement, Torts, § 358, in a lessor-lessee situation. See, Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719.
[2] Contrast, Gasteiger v. Gillenwater, 57 Tenn.App. 206, 417 S.W.2d 568.
[3] See, Rufo v. South Brooklyn Sav. Bank, 268 A.D. 1057, 52 N.Y.S.2d 469, appeal dismissed, 295 N.Y. 981, 68 N.E.2d 60; Belote v. Memphis Development Co., 51 Tenn.App. 423, 369 S.W.2d 97. See, Prosser, Torts (3 ed.) § 62. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/105146/ | 346 U.S. 119 (1953)
SECURITIES & EXCHANGE COMMISSION
v.
RALSTON PURINA CO.
No. 512.
Supreme Court of United States.
Argued April 28, 1953.
Decided June 8, 1953.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
*120 Roger S. Foster argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, John F. Davis and David Ferber.
Thomas S. McPheeters argued the cause and filed a brief for respondent.
MR. JUSTICE CLARK delivered the opinion of the Court.
Section 4 (1) of the Securities Act of 1933 exempts "transactions by an issuer not involving any public offering"[1] from the registration requirements of § 5.[2] We must decide whether Ralston Purina's offerings of treasury stock to its "key employees" are within this exemption. On a complaint brought by the Commission under § 20 (b) of the Act seeking to enjoin respondent's unregistered offerings, the District Court held the exemption applicable and dismissed the suit.[3] The Court of Appeals affirmed.[4] The question has arisen many times since the Act was passed; an apparent need to define the scope of the private offering exemption prompted certiorari. 345 U. S. 903.
Ralston Purina manufactures and distributes various feed and cereal products. Its processing and distribution *121 facilities are scattered throughout the United States and Canada, staffed by some 7,000 employees. At least since 1911 the company has had a policy of encouraging stock ownership among its employees; more particularly, since 1942 it has made authorized but unissued common shares available to some of them. Between 1947 and 1951, the period covered by the record in this case, Ralston Purina sold nearly $2,000,000 of stock to employees without registration and in so doing made use of the mails.
In each of these years, a corporate resolution authorized the sale of common stock "to employees . . . who shall, without any solicitation by the Company or its officers or employees, inquire of any of them as to how to purchase common stock of Ralston Purina Company." A memorandum sent to branch and store managers after the resolution was adopted advised that "The only employees to whom this stock will be available will be those who take the initiative and are interested in buying stock at present market prices." Among those responding to these offers were employees with the duties of artist, bakeshop foreman, chow loading foreman, clerical assistant, copywriter, electrician, stock clerk, mill office clerk, order credit trainee, production trainee, stenographer, and veterinarian. The buyers lived in over fifty widely separated communities scattered from Garland, Texas, to Nashua, New Hampshire, and Visalia, California. The lowest salary bracket of those purchasing was $2,700 in 1949, $2,435 in 1950 and $3,107 in 1951. The record shows that in 1947, 243 employees bought stock, 20 in 1948, 414 in 1949, 411 in 1950, and the 1951 offer, interrupted by this litigation, produced 165 applications to purchase. No records were kept of those to whom the offers were made; the estimated number in 1951 was 500.
The company bottoms its exemption claim on the classification of all offerees as "key employees" in its organization. Its position on trial was that "A key employee . . . *122 is not confined to an organization chart. It would include an individual who is eligible for promotion, an individual who especially influences others or who advises others, a person whom the employees look to in some special way, an individual, of course, who carries some special responsibility, who is sympathetic to management and who is ambitious and who the management feels is likely to be promoted to a greater responsibility." That an offering to all of its employees would be public is conceded.
The Securities Act nowhere defines the scope of § 4 (1)'s private offering exemption. Nor is the legislative history of much help in staking out its boundaries. The problem was first dealt with in § 4 (1) of the House Bill, H. R. 5480, 73d Cong., 1st Sess., which exempted "transactions by an issuer not with or through an underwriter; . . . ." The bill, as reported by the House Committee, added "and not involving any public offering." H. R. Rep. No. 85, 73d Cong., 1st Sess. 1. This was thought to be one of those transactions "where there is no practical need for [the bill's] application or where the public benefits are too remote." Id., at 5.[5] The exemption as thus delimited became law.[6] It assumed its present shape *123 with the deletion of "not with or through an underwriter" by § 203 (a) of the Securities Exchange Act of 1934, 48 Stat. 906, a change regarded as the elimination of superfluous language. H. R. Rep. No. 1838, 73d Cong., 2d Sess. 41.
Decisions under comparable exemptions in the English Companies Acts and state "blue sky" laws, the statutory antecedents of federal securities legislation, have made one thing clearto be public an offer need not be open to the whole world.[7] In Securities and Exchange Comm'n v. Sunbeam Gold Mines Co., 95 F. 2d 699 (C. A. 9th Cir. 1938), this point was made in dealing with an offering to the stockholders of two corporations about to be merged. Judge Denman observed that:
"In its broadest meaning the term `public' distinguishes the populace at large from groups of individual members of the public segregated because of some common interest or characteristic. Yet such a distinction is inadequate for practical purposes; manifestly, an offering of securities to all red-headed men, to all residents of Chicago or San Francisco, to all existing stockholders of the General Motors Corporation or the American Telephone & Telegraph Company, is no less `public', in every realistic sense of the word, than an unrestricted offering to the world at large. Such an offering, though not open to everyone who may choose to apply, is none the less `public' *124 in character, for the means used to select the particular individuals to whom the offering is to be made bear no sensible relation to the purposes for which the selection is made. . . . To determine the distinction between `public' and `private' in any particular context, it is essential to examine the circumstances under which the distinction is sought to be established and to consider the purposes sought to be achieved by such distinction." 95 F. 2d, at 701.
The courts below purported to apply this test. The District Court held, in the language of the Sunbeam decision, that "The purpose of the selection bears a `sensible relation' to the class chosen," finding that "The sole purpose of the `selection' is to keep part stock ownership of the business within the operating personnel of the business and to spread ownership throughout all departments and activities of the business."[8] The Court of Appeals treated the case as involving "an offering, without solicitation, of common stock to a selected group of key employees of the issuer, most of whom are already stockholders when the offering is made, with the sole purpose of enabling them to secure a proprietary interest in the company or to increase the interest already held by them."[9]
Exemption from the registration requirements of the Securities Act is the question. The design of the statute is to protect investors by promoting full disclosure of information thought necessary to informed investment decisions.[10] The natural way to interpret the private *125 offering exemption is in light of the statutory purpose. Since exempt transactions are those as to which "there is no practical need for [the bill's] application," the applicability of § 4 (1) should turn on whether the particular class of persons affected needs the protection of the Act. An offering to those who are shown to be able to fend for themselves is a transaction "not involving any public offering."
The Commission would have us go one step further and hold that "an offering to a substantial number of the public" is not exempt under § 4 (1). We are advised that "whatever the special circumstances, the Commission has consistently interpreted the exemption as being inapplicable when a large number of offerees is involved." But the statute would seem to apply to a "public offering" whether to few or many.[11] It may well be that offerings to a substantial number of persons would rarely be exempt. Indeed nothing prevents the commission, in enforcing the statute, from using some kind of numerical test in deciding when to investigate particular exemption claims. But there is no warrant for superimposing a quantity limit on private offerings as a matter of statutory interpretation.
The exemption, as we construe it, does not deprive corporate employees, as a class, of the safeguards of the Act. We agree that some employee offerings may come within § 4 (1), e. g., one made to executive personnel who because of their position have access to the same kind of information that the Act would make available in the *126 form of a registration statement.[12] Absent such a showing of special circumstances, employees are just as much members of the investing "public" as any of their neighbors in the community. Although we do not rely on it, the rejection in 1934 of an amendment which would have specifically exempted employee stock offerings supports this conclusion. The House Managers, commenting on the Conference Report, said that "the participants in employees' stock-investment plans may be in as great need of the protection afforded by availability of information concerning the issuer for which they work as are most other members of the public." H. R. Rep. No. 1838, 73d Cong., 2d Sess. 41.[13]
Keeping in mind the broadly remedial purposes of federal securities legislation, imposition of the burden of proof on an issuer who would plead the exemption seems to us fair and reasonable. Schlemmer v. Buffalo, R. & P. R. Co., 205 U. S. 1, 10 (1907). Agreeing, the court below thought the burden met primarily because of the respondent's purpose in singling out its key employees for stock offerings. But once it is seen that the exemption question turns on the knowledge of the offerees, the issuer's motives, laudable though they may be, fade into irrelevance. *127 The focus of inquiry should be on the need of the offerees for the protections afforded by registration. The employees here were not shown to have access to the kind of information which registration would disclose. The obvious opportunities for pressure and imposition make it advisable that they be entitled to compliance with § 5.
Reversed.
THE CHIEF JUSTICE and MR. JUSTICE BURTON dissent.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
NOTES
[1] 48 Stat. 77, as amended, 48 Stat. 906, 15 U. S. C. § 77d.
[2] "SEC. 5. (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly
"(1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell or offer to buy such security through the use or medium of any prospectus or otherwise; or
"(2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for delivery after sale. . . ." 48 Stat. 77, 15 U. S. C. § 77e.
[3] 102 F. Supp. 964 (D. C. E. D. Mo. 1952).
[4] 200 F. 2d 85 (C. A. 8th Cir. 1952).
[5] ". . . the bill does not affect transactions beyond the need of public protection in order to prevent recurrences of demonstrated abuses." Id., at 7. In a somewhat different tenor, the report spoke of this as an exemption of "transactions by an issuer unless made by or through an underwriter so as to permit an issuer to make a specific or an isolated sale of its securities to a particular person, but insisting that if a sale of the issuer's securities should be made generally to the public that that transaction shall come within the purview of the Act." Id., at 15, 16.
[6] The only subsequent reference was an oblique one in the statement of the House Managers on the Conference Report: "Sales of stock to stockholders become subject to the act unless the stockholders are so small in number that the sale to them does not constitute a public offering." H. R. Rep. No. 152, 73d Cong., 1st Sess. 25.
[7] Nash v. Lynde, [1929] A. C. 158; In re South of England Natural Gas and Petroleum Co., Ltd., [1911] 1 Ch. 573; cf. Sherwell v. Combined Incandescent Mantles Syndicate, Ltd., 23 T. L. R. 482 (1907). See 80 Sol. J. 785 (1936).
People v. Montague, 280 Mich. 610, 274 N. W. 347 (1937); In re Leach, 215 Cal. 536, 12 P. 2d 3 (1932); Mary Pickford Co. v. Bayly Bros., 68 P. 2d 239 (1937), modified, 12 Cal. 2d 501, 86 P. 2d 102 (1939).
[8] 102 F. Supp., at 968, 969.
[9] 200 F. 2d, at 91.
[10] A. C. Frost & Co. v. Coeur D'Alene Mines Corp., 312 U. S. 38, 40 (1941). The words of the preamble are helpful: "An Act To provide full and fair disclosure of the character of securities sold in interstate and foreign commerce and through the mails, and to prevent frauds in the sale thereof, and for other purposes." 48 Stat. 74.
[11] See Viscount Sumner's frequently quoted dictum in Nash v. Lynde: " `The public'. . . is of course a general word. No particular numbers are prescribed. Anything from two to infinity may serve: perhaps even one, if he is intended to be the first of a series of subscribers, but makes further proceedings needless by himself subscribing the whole." [1929] A. C. 158, 169.
[12] This was one of the factors stressed in an advisory opinion rendered by the Commission's General Counsel in 1935. "I also regard as significant the relationship between the issuer and the offerees. Thus, an offering to the members of a class who should have special knowledge of the issuer is less likely to be a public offering than is an offering to the members of a class of the same size who do not have this advantage. This factor would be particularly important in offerings to employees, where a class of high executive officers would have a special relationship to the issuer which subordinate employees would not enjoy." 11 Fed. Reg. 10952.
[13] A statement entitled to more weight than different views expressed by one of the conferees in Senate debate. See 78 Cong. Rec. 10181, 10182. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1626525/ | 464 So.2d 97 (1984)
Elizabeth Claire Hutchinson SMITH
v.
Richard Paul SMITH.
Civ. 4433.
Court of Civil Appeals of Alabama.
December 5, 1984.
Rehearing Denied January 16, 1985.
*98 William N. Clark and Stephen W. Shaw of Redden, Mills & Clark, Birmingham, for appellant.
*99 Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
BRADLEY, Judge.
This is a child custody modification proceeding. The parties were divorced on June 16, 1982. The court's decree awarded custody of the parties' minor child, Ryan, to the father. Shortly after the divorce the mother married Dr. Mangiere, whom she had known during her previous marriage. On July 3, 1983 the mother had a child, Sean, by her second husband. On July 10, 1983 the mother brought a petition to modify the trial court's prior decree, seeking custody of Ryan. After hearing the evidence ore tenus, the trial court denied the mother's petition, retaining custody of Ryan in the father. The mother filed a motion to alter or amend the decree or, in the alternative, motion for new trial. This motion was denied by the trial court, whereupon the mother appealed to this court.
Our law is well settled that where evidence is heard ore tenus by a trial court the court's findings will not be disturbed unless plainly and palpably wrong. Patterson v. Patterson, 399 So.2d 846 (Ala.Civ. App.1980). There is also a rule of repose applicable to a petition to modify a prior custody decree. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). To overcome these presumptions the mother must have presented evidence that a change in custody would "materially promote" the child's best interests. Ex parte McClendon, 455 So.2d 863 (Ala.1984). We conclude that the mother failed to rebut these presumptions, and affirm the trial court.
The facts contained in the record are voluminous, and we will not delineate all of them here.
In the main, the mother based her petition for modification on several factors, including her remarriage, subsequent improved lifestyle, and the fact that she and her current husband own their home. She further based her petition on the father's alleged sexual misconduct and his failure to properly clothe and clean Ryan. She contends that the above evidence was sufficient to justify a change in custody.
The husband admitted at trial that he had engaged in sexual relations with women since his divorce and that some of this activity occurred at his home. Our courts have long held that, while evidence of indiscreet conduct is a factor to consider in a custody modification action, custody will not be modified where the party seeking modification fails to establish a substantial detrimental effect on the welfare of the child as a result of the indiscreet conduct. Roberson v. Roberson, 370 So.2d 1008 (Ala.Civ.App.1979). There was no proof that any of these activities ever occurred in Ryan's presence. Ryan slept in his own room.
Our opinion in McKim v. McKim, 440 So.2d 562 (Ala.Civ.App.1983), stands for the proposition that sexual misconduct need not occur in the physical presence of children for it to be material to their welfare. In any event, our case law requires that there be evidence presented showing that such conduct is detrimental to the children. See, e.g., Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (Ala.Civ.App.1975). The mother failed to show that the father's activities were in any way detrimental to Ryan. Thus, we conclude that the father's sexual conduct was insufficient to warrant a custody change.
Evidence presented at trial concerning whether the father properly cared for the child was conflicting. The mother and her current husband testified that the father was a poor father and that Ryan was unkempt when with the father. On the other hand, witnesses testified that he was an excellent father and the father kept Ryan well clothed and clean. Ryan and his father spent time together playing and visiting family. Ryan was never left unsupervised, but was left with a babysitter three days a week while the father worked. Ryan was usually taken back home from the babysitter's around 3:30 p.m. by his father. The trial court resolved these conflicts in testimony in favor of the father, *100 and we cannot substitute our judgment for that of the trial court unless its conclusion was palpably erroneous. Harden v. Harden, 418 So.2d 159 (Ala.Civ.App.1982). We do not consider the trial court's conclusion on this matter to be clearly erroneous, since considerable evidence was presented showing that the father properly cared for Ryan.
There was also conflicting testimony concerning the mother's visitation rights. The mother claimed that the father interfered with her visitation with Ryan. The father denied this. Specifically, the mother claims that the father cursed her and intimidated her, but it is undisputed that the mother was never denied her right to visit Ryan pursuant to the court decree. As we have stated earlier, disputes over visitation should be resolved by the child's parents and not by changing custody of the child from one parent to another. Pons v. Phillips, 406 So.2d 932 (Ala.Civ.App.1981). Particularly where the evidence of an alleged interference with visitation rights is uncertain and conflicting, we are convinced that a change of custody is unwarranted.
The mother further alleges that custody of Ryan should have been awarded to her because she has married a fine man and consequently her life is more stable and her financial condition has improved since the last decree. Our courts have stated that these factors may be considered in a change of custody action, but they are not controlling and do not alone warrant a modification of a custody judgment. See Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981).
The mother has merely shown that her home life and financial status have improved, but has not shown that a custody change would "materially promote" Ryan's best interests. See Ex parte McClendon, supra. There is no evidence that the father is not a capable and loving parent; in fact, the evidence indicates otherwise. The father has sufficient income to provide for Ryan's needs and has raised Ryan in a good environment.
Thus, we conclude that the evidence presented at trial did not justify a change of custody from the father to the mother. The trial court's judgment retaining custody of the child in the father is affirmed.
AFFIRMED.
WRIGHT, P.J., and HOLMES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304763/ | McAMIS, P. J.
This is an action for damages growing out of fisticuffs between the parties on July 7, 1953 immediately following and accompanied by, abusive language and provocative charges. The plaintiff sued in separate counts for compensatory and punitive damages in the sum of $10,000. The jury returned a verdict for $25 and costs which the court approved in overruling plaintiff’s motion for a new trial.
Plaintiff Pascal Arnold has appealed and assigned as error that the verdict allows nothing for loss of time, said to amount to $384, for pain and suffering endured as the result of the assault or for punitive damages. On the ground alone of the inadequacy of the verdict and judgment it is insisted a new trial should have been granted *393by the trial court and should now be granted by this court. There is no evidence to sustain defendant’s pleas of self-defense and unless the smallness of the verdict can be justified on the ground of provocative and abusive words and charges uttered by the plaintiff prior to the assault, we agree that the amount allowed by the jury is manifestly inadequate. The undisputed proof shows that plaintiff incurred medical expenses in the amount of $36.10, or $11.10 in excess of the amount allowed by the jury and there is evidence that he suffered a broken nose and, according to his physician, he was incapacitated from work for about a week.
The proof is that on the day in question plaintiff, accompanied by Walter Hylemán, his employer, walked along a road near defendant’s saw mill for the purpose of entering plaintiff’s truck which was parked about 150 feet beyond the mill. Defendant engaged Hyleman in conversation about some matter of mutual interest to them. According to defendant’s version, he had received information that plaintiff had moved some slabs belonging to defendant and while the three of them were “just talking there ’ ’ he asked plaintiff who had given him authority to move the slabs and plaintiff replied that his father and some other man whose name he could not remember had authorized him to get the slabs. Defendant says he then told plaintiff that the slabs belonged to him and that “ all I want you to do is just put them back up there”. According to defendant, plaintiff thereupon said that he had as good a right to get the slabs as defendant did to take plaintiff’s potatoes. Apparently, defendant then realized that plaintiff was becoming-angry for he then admonished him to go on — that he wanted no trouble about the slabs. However, according to defendant, plaintiff called him a liar “about a number *394of things” and began to enrse him haying, meanwhile, entered the truck and seated himself under the steering wheel.
Defendant admits that he then opened the right door of the truck and assaulted plaintiff, striking him on the nose and forehead with his fist, and that he later procured the issuance of a warrant and submitted and paid a fine for assault and battery before a Justice of the Peace.
Although plaintiff’s testimony is to the effect that as soon as defendant saw him he assumed a belligerent attitude about the slabs and began to curse and accuse him of stealing the slabs, the jury may have found from defendant’s testimony that he merely sought to find out by what authority plaintiff claimed to own the slabs and to ask that he return them and that plaintiff thereupon assumed the offensive in verbal combat, unjustly accused defendant of stealing his potatoes and indulged in the use of provocative epithets. Under the familiar rule, we are not empowered to weigh this dispute in the evidence but must take the strongest legitimate view of all the evidence tending to support the verdict.
While these issues involve a review of the evidence, such review is not to determine where the truth lies or to find the facts, that hot being our province in jury cases. It is only to determine whether there was any substantial evidence to support the verdict; and it must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict. Johnston v. Cincinnati, N. O. & T. P. R. Co., 146 Tenn. 135, 149, 240 S. W. 429; Finchem v. Oman, 18 Tenn. App. 40, 49, 50, 72 S. W. (2d) 564, 570.
*395The jury might well infer from defendant’s testimony that the verbal abuse of plaintiff provoked the assault. He testified:
“What had Pascal done to yon to get yon to go in the truck there after him, Mr. Wiley?
“Well, he accused me of lying and stealing potatoes.”
The rule in Tennessee with respect to mitigation of damages on the ground of provocative words is clearly stated in Daniel v. Giles, 108 Tenn. 242, 66 S. W. 1128, where it was said:
“While no words, or insults, or opprobrious epithets can justify an assault and battery, still, in a civil action for assault and battery, evidence of provocation, calculated to heat the blood or arouse the passions of a reasonable man, offered at the time of the assault and battery, or so recently before as to constitute part of the res gestae, is admissible and must be considered by the jury in mitigation of damages.”
The opinion cites for the rule the early cases of Jacaway v. Dula, 15 Tenn. 82 and Chambers v. Porter, 45 Tenn. 273. See also Evans v. Bryan, 24 Tenn. App. 405, 145 S. W. (2d) 557; Jenkins v. Hankins, 98 Tenn. 645, 41 S. W. 1028, 1030.
In the Jenkins case, last cited, the jury returned a verdict for one cent and costs in favor of the estate of the intestate who was killed by the defendant. In reversing the action of the trial judge setting aside the verdict on motion of the plaintiff and ordering that a judgment be rendered on the verdict for only one cent, the court said: “Under the circumstances, — provocation and attack of the deceased, its violence and its dangur to defendant,— even though he may not have been technically altogether in the right, so as to require that they render a verdict on the issues for him, the jury might very well have as-*396sinned that deceased having provoked the difficulty brought the result upon himself, and was not entitled to anything but nominal damages * * *. In cases of this character it is peculiarly their province, in determining the issues, to fix the amount of damages, and to fix it with proper abatement on account of the contributing fault of the deceased. Their action is not controllable by the court below or this court, unless, as already stated, we can see that it was brought about under the improper influences indicated. ’ ’
In that case the deceased who was unarmed assaulted the defendant who shot him. The deceased then retreated but was followed by defendant and again fired upon and fatally wounded. It was held that it was for the jury to say whether, under the circumstances, the defendant used more force than necessary; that there was no basis for imputing to the jury partiality, prejudice or corruption and, as indicated from the above quotation, whether the estate was entitled only to nominal damages, the extent of the mitigation being peculiarly a matter for the jury.
It is argued that, since in this case the verdict of the jury is for an amount less than the medical bills incurred, the jury must have been actuated by prejudice and caprice. A number of authorities, including an annotation at 20 A. L. R. (2d) 276, are cited for the rule.
As we have seen, however, the diminution of damages in assault and battery cases due to provocative conduct by the plaintiff is peculiarly a matter for the jury. Jenkins v. Hankins, supra.
Although in some jurisdictions provocative words or conduct are held not a proper basis for mitigation of damages, Tennessee is definitely aligned with the contrary view. The reasons for and against mitigation were ably summarized by Justice White in 1814 in Newman v. Mc*397Nairy, 158 Tenn. Appendix p. 86, which see in addition to later Tennessee cases cited supra. We have no holding to the contrary.
Where the rnle of mitigation prevails as to compensatory damages it is npon the theory that the plaintiff himself was gnilty of an act which led to a disturbance of the public peace and thus brought about his own injury.
“* * * The reason for the rule allowing provocation to be introduced in evidence for the purpose of mitigating actual or compensatory damages is that as the plaintiff provoked the assault, he is himself guilty of the act which led to the disturbance of the public peace. The doctrine is correlative to the rule which permits circumstances of aggravation, such as time and place of assault, or insulting words, or other circumstances of indignity or contumely, to increase them. If the injury of which the plaintiff complains came in part from his own act, there is less reparations demanded from the defendant, for the law seeks to do justice between the parties and will not require one to atone for the other’s error. If satisfaction is to be made for the breach of public order, it is not due him, for his own wrong is the consideration upon which it stands.” 4 Am. Jur. 205, Assault and Battery, Sec. 165.
The cases covered by the annotation, 20 A. L. R. (2d) 276, cited in plaintiff’s brief wherein the jury awarded the plaintiff the exact amount of the medical bills incurred in treating his injury proceed on the theory that the jury, through prejudice or caprice, has disregarded the court’s charge in disallowing recoverable elements of damage such as pain and suffering and loss'of time. Such cases are not considered in point because here the jury simply mitigated the amount necessary to compensate plaintiff for his injuries.
*398It ■would be difficult, if not impossible, for us to determine the amount by wbicb. the jury reduced wbat tbey thought to be just compensation. If they believed plaintiff ’s testimony the mitigation would be severe indeed; for he testified that he was employed at $48.00' per week and lost a number of weeks due to his injury. And, according to his testimony, he suffered rather severe injuries to his nose which may have resulted in improper drainage from his sinus. Plaintiff’s character was impeached, however, and the jury may have disregarded his testimony. His physician, as shown, fixed the period of disability at one week and found that his nose had healed at the time of the trial.
If the jury believed that plaintiff became angry when defendant inquired in a civil way as to his authority for removing slabs and indulged in verbal abuse of defendant, even though defendant retaliated in kind and also with blows, we cannot say that the jury acted with improper motives in mitigating the damages to the extent shown.
It results that the assignments are overruled and judgment affirmed with costs.
Felts and Howard, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3075863/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BRANDON ISLAS, §
No. 08-12-00157-CR
Appellant, §
Appeal from the
v. §
362nd District Court
THE STATE OF TEXAS, §
of Denton County, Texas
Appellee. §
(TC# F-2010-1896-D)
§
JUDGMENT
The Court has considered this cause on the record and concludes there was no error in the
judgment. We therefore affirm the judgment of the court below. This decision shall be certified
below for observance.
IT IS SO ORDERED THIS 14TH DAY OF MAY, 2014.
GUADALUPE RIVERA, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1626307/ | 169 N.W.2d 415 (1969)
Application of OTTER TAIL POWER COMPANY for a Certificate of Public Convenience and Necessity to Provide Electric Service to F. J. Froeschle at Section 2, Township 134, Range 56, Ransom County, North Dakota.
CASS COUNTY ELECTRIC COOPERATIVE, INC., Complainant and Respondent,
v.
OTTER TAIL POWER COMPANY, Applicant and Appellant.
Civ. No. 8541.
Supreme Court of North Dakota.
July 2, 1969.
*416 Wattam, Vogel, Vogel & Peterson, Fargo, for Cass County Elec. Co-op., Inc.
Lewis & Bullis, Wahpeton, and Field, Arvesen, Donoho & Lundeen, Fergus Falls, Minn., for Otter Tail Power Co.
John C. Stewart, Bismarck, for Public Service Commission of North Dakota.
STRUTZ, Judge (On reassignment).
This is an appeal from a judgment of the district court of Ransom County, which judgment affirmed an order of the Public Service Commission denying the application of Otter Tail Power Company for an order granting Otter Tail a certificate of public convenience and necessity to provide electric service to the residence of one F. J. Froeschle at a rural site outside the city limits of Lisbon, North Dakota.
The record discloses that Froeschle, a long-time customer of Otter Tail at his *417 residence in Lisbon, built a new home in Island Park Township, a rural area just north of the limits of the city. He requested electric service for this new home from Otter Tail, which furnishes such service to persons living within the city limits of Lisbon. In order to reach the new Froeschle residence, it was necessary for Otter Tail to construct approximately 1,300 feet of line, approximately one-half of which was outside the city limits. The entire extension cost Otter Tail about $1,000, and the cost of that portion of the extension which was outside the city limits was approximately $450.
Cass County Electric Cooperative, Inc., protested the extension of Otter Tail lines to the Froeschle residence in the rural area. Cass County Electric serves approximately twenty-five rural users located within one mile of the corporate limits of Lisbon. The record discloses that Cass County Electric serves all rural users of electricity in the Lisbon area except five or six who are located south of the city. In order to serve Froeschle at his new residence, it will be necessary for Cass County Electric to install between 1,529 and 1,565 feet of new line at an estimated cost of $600 to $700.
The record further discloses that Froeschle has expressed a preference for service from Otter Tail.
Under these circumstances, Otter Tail Power Company constructed its line to the Froeschle residence and began serving the customer without first making application for a certificate of public convenience and necessity. Otter Tail strenuously asserts that this court has held that where an area is served by two suppliers of electricity, the customer has the right to choose from which of these suppliers he desires to take his electricity, citing Cass County Electric Coop. v. Otter Tail Power Co., 93 N.W.2d 47 (N.D.1958). It is true that, at the time of the above decision, public utilities could extend their lines within the territory which they were serving and into territory contiguous to that being served by them which was not then being served by another supplier, without permission so to do. At the time of the Cass County Electric decision, the only control which the Public Service Commission had over any such extensions of the system of a public utility was in the cases where another supplier complained and was able to prove that such extensions unreasonably interfered with its service or with its system. Thus such extensions could be made by a public utility at that time without proving: (1) public convenience and necessity; (2) that such extensions would not be a duplication of service; and (3) that the extensions would not interfere with the development of electric service in the area.
Subsequent to the decision in Cass County Electric Coop. v. Otter Tail Power Co., supra, in 1958, however, the Legislature enacted a new law on the subject, Chapter 319 of the Session Laws of 1965, which amended portions of Chapter 49-03, North Dakota Century Code. The 1965 amendment was commonly referred to as the "Territorial Integrity Law." Under the provisions of this amendment, no public utility could extend its service lines outside the limits of a municipality which it was serving without a determination by the Public Service Commission that public convenience and necessity required such extension. The 1965 law, as enacted, provided that such certificate of public convenience and necessity could not be issued unless the electric cooperative with lines or facilities nearest the place where service is required shall consent in writing to such extension by the public utility or unless, upon a hearing before the Public Service Commission, it shall be shown that the service required cannot be provided by an electric cooperative. This court, in Montana-Dakota Utilities Co. v. Johanneson, 153 N.W.2d 414 (N.D.1967), held that this provision, which authorized the electric cooperative nearest the rural area proposed to be served by a public utility to determine whether the public utility or the cooperative should serve the area, was an unlawful *418 delegation of legislative authority to the electric cooperative and that Section 3 of the 1965 law therefore was unconstitutional.
The balance of the Territorial Integrity Law of 1965, however, was held to be valid. The provisions of the remaining sections of the law required that any extension into rural areas by a public utility could be made only upon a showing before the Public Service Commission that public convenience and necessity required such extension.
It was asserted by the respondent, Cass County Electric, and stated by the trial court in its memorandum opinion that cooperatives now are the preferred suppliers of electrical energy in all rural areas of the State, and that a public utility may not enter a rural area unless it is physically and economically impracticable for a cooperative to furnish electric service in such area. We do not believe that a fair reading of the law would justify this conclusion. The law, as amended, merely provides that before a public utility shall be permitted to extend its lines into certain areas, it must show that public convenience and necessity reasonably requires such extension.
Otter Tail further asserts that, inasmuch as both Otter Tail and Cass County Electric now are serving rural areas outside of Lisbon, and inasmuch as the record shows that the lines of Otter Tail are somewhat nearer the site to be served than are the lines of Cass County Electric, and inasmuch as Otter Tail for many years has served in the area and that there is no showing on the part of Cass County Electric that the granting of the certificate of public convenience and necessity to Otter Tail in this case will result in wasteful duplication, and inasmuch as the record discloses that the customer to be served prefers to have service from Otter Tail, such customer preference should determine which of the suppliers in the area should be permitted to serve Froeschle. While under circumstances as here presented customer preference should be considered, there are a number of other factors which also must be considered in determining whether the application of Otter Tail for a certificate of public convenience and necessity should be granted. These factors include: the location of the lines of the suppliers; the reliability of the service which will be rendered by them; which of the proposed suppliers will be able to serve the area more economically and still earn an adequate return on its investment; and which supplier is best qualified to furnish electric service to the site designated in the application and which also can best develop electric service in the area in which such site is located without wasteful duplication of investment or service.
Otter Tail, on appeal to this court, has demanded a trial de novo. A trial de novo, as provided for in Section 28-27-32, North Dakota Century Code, requires that questions of fact will be tried anew in the Supreme Court. In this case, there is very little dispute as to the facts. It is only the determination to be made from those facts which is in dispute. An appeal from the decision of an administrative agency, provided for in Chapter 28-32, North Dakota Century Code, provides for the scope of the appeal and the procedure to be followed in such appeals. Section 28-32-19 provides, in part, that the court shall
"* * * affirm the decision of the agency unless it shall find that such decision or determination is not in accordance with law, or that it is in violation of the constitutional rights of the appellant, or that any of the provisions of this chapter have not been complied with in the proceedings before the agency, or that the rules of procedure of the agency have not afforded the appellant a fair hearing, or that the findings of fact made by the agency are not supported by the evidence, or that the conclusions and decision of the agency are not supported by its findings of fact."
*419 Upon appeal to the Supreme Court from the decision of an administrative agency, even where a demand is made for trial de novo, the scope of the appeal must be limited as above provided or we will have one rule governing review in the trial court and a totally different rule governing review in the Supreme Court. The Supreme Court, on such appeal, does not have jurisdiction to decide administrative questions which have been delegated by the Legislative Assembly to the agency for determination. City of Carrington v. Foster County, 166 N.W.2d 377 (N.D.1969).
The administrative power to determine public convenience and necessity in this case has been vested by law in the Public Service Commission. Where an administrative agency must determine what constitutes public convenience and necessity, a certain amount of judgment and discretion must be allowed the agency. In determining public convenience and necessity, its order may not be arbitrary, capricious, or unreasonable. When there is substantial evidence from which to draw reasonably the inference of the existence of the facts necessary to support the finding on the question of public convenience and necessity, its order will not be found to be arbitrary, capricious, or unreasonable. In re Hanson, 74 N.D. 224, 21 N.W.2d 341, 346 (1946).
Whether the public convenience and necessity in this case requires that the public utility be permitted to extend its lines into the rural area in question must be determined by the Public Service Commission, acting under the law. It comes to this court for review through the procedure prescribed by the Legislature, as outlined above. The procedure thus provided for review of the action taken by the Public Service Commission by the courts does not contemplate that we exercise legislative or administrative functions in our determination. The Constitution prohibits the Legislature from conferring upon this court such power. Sec. 96, N.D. Constitution. See also Great Northern Ry. Co. v. McDonnell, 77 N.D. 802, 45 N.W.2d 721, 726 (1950); City of Carrington v. Foster County, supra.
Thus this court, on an appeal with demand for trial de novo, does not have the power to determine administrative questions which are within the purview of the Public Service Commission. That agency alone has the authority to make this determination, and such determination will not be disturbed on appeal unless it can be shown that such decision or determination is not in accordance with the law, or that it is in violation of the constitutional rights of the appellant, or that any of the provisions of the law have not been complied with in the proceedings before the agency, or that the rules or procedure of the agency have not afforded the appellant a fair hearing, or that the findings of fact made by the agency are not supported by the evidence, or that the conclusions and decision of the agency are not supported by its findings of fact. Sec. 28-32-19, N.D.C.C.
When there is substantial evidence to support the decision of the agency, that decision must be affirmed. This merely reaffirms our holding in Williams Electric Cooperative v. Montana-Dakota Utilities Co., 79 N.W.2d 508 (N.D.1956), where we said:
"* * * the courts do not have the jurisdiction, primarily, to decide administrative questions assigned to the public utilities commission (PSC) for determination and where such commission in its proceedings furnishes due process of law and there is substantial evidence to support the findings of the commission, the courts have no authority to substitute their judgment for that of the commission."
The trial court reviewed the record made before the Public Service Commission and concluded that the findings, conclusions, and decision of the Commission *420 are supported by substantial evidence and that the conclusions and decision are in accordance with the law. It thereupon affirmed the decision of the Commission.
We have reviewed the record on this appeal and agree with the district court. The judgment appealed from therefore is affirmed.
TEIGEN, C. J., and ERICKSTAD, PAULSON and KNUDSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626335/ | 25 So. 3d 568 (2010)
FLOYD
v.
STATE.
No. 3D08-3260.
District Court of Appeal of Florida, Third District.
January 26, 2010.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626326/ | 17 Mich. App. 470 (1969)
169 N.W.2d 655
COOLEY
v.
MARX
Docket No. 5,454.
Michigan Court of Appeals.
Decided May 28, 1969.
Gemrich, Moser, Dombrowski, Bowser & Garvey, for plaintiff.
Theron D. Childs, Jr., for defendants.
BEFORE: QUINN, P.J., and HOLBROOK and T.M. BURNS, JJ.
QUINN, P.J.
Plaintiff filed this action to quiet title to land fronting on Lake Michigan in Berrien county. Defendants Marx own land adjoining plaintiff's land on the northeast, and defendant township owns the land on the southwest. The boundaries between the lands of these defendants and the land of plaintiff are the areas in dispute. The judgment of the trial court fixes these boundaries to the satisfaction of these defendants, but plaintiff is dissatisfied with his northeast boundary as established by the judgment. Defendants Kerr and Beckman were dismissed by the judgment.
The titles of plaintiff, Marx and the township stem from a common grantor, Margaret Glavin. By deed dated September 25, 1914, she conveyed the land adjoining plaintiff on the southwest to the township. By deed dated March 1, 1917, Margaret Glavin conveyed to plaintiff's predecessor in title the land lying between the township and the northeast *472 boundary presently claimed by plaintiff. By mortgage dated January 26, 1940, Margaret Glavin mortgaged to Marxs' predecessor in title the land lying northeast of plaintiff. This mortgage was foreclosed, and by sheriff's deed dated March 17, 1941, Marxs' predecessor in title obtained title to the land adjoining plaintiff on the northeast. An error in the description in the sheriff's deed created an overlap along plaintiff's northeast boundary.
A purchaser at a mortgage foreclosure sale acquires such right, title and interest in the mortgaged premises as the mortgagor possessed at the time the mortgage was executed. Schwartz v. Oakland County Sheriff (1966), 4 Mich. App. 628. At the time the mortgage was executed, Margaret Glavin owned nothing southwest of the northeast line of plaintiff's property as it was established by her deed of March 1, 1917 to his predecessor in title. The record title fixes plaintiff's northeast line as the line described in the deed of March 1, 1917.
Until the events which led to this litigation transpired, there was no dispute between plaintiff and Marx or their predecessors as to the location of their mutual boundary. In fact, as the trial judge found, they did not know where it was. The first event was a survey in 1959 of plaintiff's property by one G.L. Wightman at the request of plaintiff.
Mr. Wightman had previously surveyed property to the northeast of Marx, and as he stated at trial, he had to protect that survey when he surveyed for plaintiff. In doing so, the south line of his survey became shorter than the south line in plaintiff's record title, the angle of the southwest line was changed and the line made longer, and the angle of the northwest line was altered slightly. The net result was to shift the lake frontage of plaintiff *473 several feet to the southwest and into the description of the township land.
Plaintiff's displeasure with this survey led to the second event, another survey of plaintiff's land by Kenneth I. Clark in 1962 at plaintiff's request. This survey conformed to the calls and distances recited in the Cooley title. In 1964, plaintiff brought this action to establish his title to the land portrayed by the Clark survey.
At trial it developed that plaintiff had maintained a fence along the northeast side of his property off and on since sometime in the 1930s. It commenced at a point which is the point of commencement of plaintiff's description according to his record title and according to both surveyors, and ran northwesterly toward the lake in an irregular line, often from tree to tree. As it proceeded northwesterly, it gradually ran more westerly and was about equidistant from the northeast line established by the Clark survey and the same line established by the Wightman survey. After view, the trial judge determined the old fence line to be plaintiff's northeast line on the basis of acquiescence.
In reaching this decision, the trial judge relied on Daley v. Gruber (1960), 361 Mich. 358. We consider Daley inapposite to the case before us. Acquiescence applied in Daley because the fence involved was the point of commencement of defendant's description and marked the boundary between defendant and the adjoining owner, not Daley. In Cooley, nothing was conveyed in relation to the fence. There is no evidence indicating the fence was placed on the northeast line of the Cooley property, and the testimony of Cooley indicates it was placed without reference to his northeast line as a convenience to keep out trespassers. We find no basis for holding *474 the fence to be the line between plaintiff and Marx.
Our de novo review of this record convinces us that the proper line between plaintiff and Marx is the northeast line of the Clark survey.
We also note that defendants are satisfied with the southwest line of plaintiff's property as fixed by the trial judge. The line so fixed was the southwest line of the Clark survey of plaintiff's property. This necessarily fixes plaintiff's northeast line as established by the Clark survey which conformed to the calls and distances of plaintiff's record title. Defendants Marx claimed no more than they owned which precludes any claim of adverse ownership to land lying southwest of plaintiff's northeast line as fixed by the Clark survey. Warner v. Noble (1938), 286 Mich. 654.
Remanded for entry of an amended judgment which shall reflect the line between plaintiff and Marx as herein specified. In all other respects, the trial court is affirmed. Plaintiff may recover costs.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626342/ | 169 N.W.2d 289 (1969)
184 Neb. 529
LIBERTY FINANCE CORPORATION, a corporation, Appellee,
v.
Mary C. JONES, Appellant.
No. 37188.
Supreme Court of Nebraska.
June 20, 1969.
*290 Mary C. Jones, pro se.
Abrahams, Kaslow & Cassman, Frank F. Pospishil, Omaha, for appellee.
Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
McCOWN, Justice.
This is an action to quiet title to certain real estate in Omaha, Nebraska. The trial court determined that the defendant, Mary C. Jones, had an option to purchase the premises. If the defendant failed to exercise the option and pay the purchase price of $7,000 within 90 days from September 26, 1968, title was quieted in the plaintiff. The defendant has appealed, appearing in this court pro se.
The defendant had resided on, or had possession of, the premises involved, continuously since 1951, except for 1 day as hereafter noted. On November 5, 1964, the property was sold at a sheriff's sale in a mortgage foreclosure instituted by the Omaha National Bank, Trustee, against Mary C. Dozier, now Mary C. Jones, the defendant here. The plaintiff here, Liberty Finance Corporation, was the purchaser at the mortgage foreclosure sale. The purchase price paid was $4,971. The sheriff's deed recites that under the decree, there was due to the Omaha National Bank, Trustee, the sum of $2,684.13, together with interest, which was a first lien; that there was also due to N. P. Dodge Company, the sum of $1,860.93, together with interest, which was a second lien; and that there was also due and owing to Liberty Finance Corporation, the plaintiff in this action, the sum of $1,733.18, together with interest, which was a third lien. Plaintiff's purchase price of $4,971 paid off the first and second liens with interest and costs of foreclosure. The indebtedness of the defendant to the plaintiff here of $1,733.18 made a net investment for the plaintiff in the property of $6,704.18 at the time of the sheriff's sale on November 5, 1964.
Following the sheriff's sale and in December 1964, the plaintiff here, Liberty Finance Corporation, and the defendant, Mary C. Jones, entered into a written lease of the premises for a term of 6 months from December 30, 1964, to June 30, 1965, for a total rental of $1,100, payable at the rate of $100 per month in advance and a balance of $500, payable on June 30, 1965. In the event rentals were promptly paid, there was an option for renewal for an additional 6-month period for the same amount and payable in the same fashion. On the same date this lease was executed, the plaintiff, Liberty Finance Corporation, executed and delivered to the defendant, Mary C. Jones, a written memorandum dated December 24, 1964, which read:
"With reference to the lease agreement between ourselves today, it is understood *291 that you have the option to purchase the home at any time and that 50% of the monthly payments will be applied to the original debt, and 50% as rent. If the terms of the first six months have been fulfilled the full payments during the second six months will be applied to the indebtedness. Interest is at 6%.
"This is all contingent on the home being improved to the extent of about $2,000.00 during the year."
The defendant paid to the plaintiff the sum of $100 on February 12, 1965; $90 on April 12, 1965; $100 on May 5, 1965; $100 on May 28, 1965; $25 on August 6, 1965; and $25 on August 12, 1965, a total of $440. No other payments were made by the defendant during 1965 or 1966.
On June 22, 1967, the plaintiff filed a forcible entry and detainer action against the defendant in the municipal court of Omaha for restitution of the premises. Sometime between June 22 and September 20, 1967, the defendant paid to the plaintiff $100 in cash, and delivered a check for $200. The check was never paid. On July 7, 1967, the plaintiff wrote on the bottom of the option of December 24, 1964, the following: "The above is still correct in that the home may be purchased for a price to be agreed upon at any time." On August 8, 1967, a decree of restitution was entered against the defendant in the municipal court. On September 20, 1967, the constable evicted the defendant in accordance with the writ from the municipal court. On the same day, the defendant filed an injunction proceeding against Liberty Finance Corporation in the district court to enjoin it from further prosecuting the forcible entry and detainer action. On May 15, 1968, decree was entered in the district court permanently enjoining Liberty Finance Corporation from further prosecuting its forcible entry and detainer action, apparently on the grounds that the defendant had an interest in the premises by virtue of the written agreements.
On June 6, 1968, the plaintiff filed this action against the defendant praying that the purported option agreement be declared null and void and be canceled; foreclosing defendant of all title and equity of redemption; quieting title to the premises in the plaintiff and against the defendant; and requiring defendant to vacate the premises.
The evidence at the trial showed that the total amount paid by the defendant to the plaintiff after November 24, 1964, was the sum of $540. Plaintiff also had paid at least $1,400 in real estate taxes, and approximately $300 in sidewalk assessments on the premises after 1964. The manager of the plaintiff testified at the trial that plaintiff would be willing to sell the property to the defendant, Mary C. Jones, for $7,500 to $8,000, although plaintiff had more than that sum invested in it.
The defendant, Mary C. Jones, claimed that she had made substantial improvements to the premises during her occupancy. She filed a mechanic's lien against the property on December 29, 1967. It included repairs and improvements over a period of 14 years, 1954-1967, which she claimed totaled $8,440. She introduced in evidence one cement contractor's statement to her in 1967 for $918.18. The defendant, Mary C. Jones, also testified that $6,000 to $6,500 was a fair price for the premises.
On September 26, 1968, the district court entered its decree that the defendant was deemed to have an option to purchase. The court determined that the purchase price under the option was $7,000, and that the option was to be exercised by the defendant within 90 days. The court further decreed that in the event defendant failed to exercise the option and pay the purchase price within the time specified, title was quieted in the plaintiff with writ of assistance to place plaintiff in possession.
Among numerous assignments of error, the defendant devotes a substantial portion of her brief to the denial of a request for disqualification of the trial judge. The basis for the request for disqualification was that Judge Burke, the trial judge, had been the judge in a previous divorce action involving the defendant.
*292 A district judge is not disqualified to hear a case because he previously presided in a proceeding involving one of the parties. Under section 24-315, R.R.S. 1943, the trial judge would not be disqualified even if the action here involved a proceeding to vacate the judgment in the defendant's divorce case itself. See Chicago, B. & Q. R. R. Co. v. Kellogg, 54 Neb. 138, 74 N.W. 403.
The defendant's intimations that she did not receive fair and impartial consideration by the trial court in this case are untenable. An action to quiet title to real estate and to enforce a contract and agreement is an equitable action and is in this court for trial de novo on the record. See Neylon v. Parker, 177 Neb. 187, 128 N.W.2d 690. The record in this case is overwhelming. The trial court granted the defendant a continuance to enable her to retain an attorney and prepare her defense. The trial court offered the defendant the services of qualified counsel to undertake her defense without cost to her as a matter of professional obligation. At the trial in the district court, the defendant was represented by counsel employed by her and was permitted to participate herself. The trial court allowed the defendant to introduce all available testimony and documents regardless of materiality and did not permit the plaintiff to cross-examine her. The record establishes without question a conscientious consideration for the defendant's rights in all respects.
The defendant contends that she placed extensive improvements on the premises over the years since 1954. Any interest the defendant had in improvements made prior to November 1964, would have been divested by the mortgage foreclosure proceedings at that time. See Hammond v. Harrington, 150 Neb. 1, 33 N.W.2d 293.
There is no evidence of any increase in value of the real estate created by improvements made after 1964. There is no evidence as to the value of the property without the post-1964 improvements Also, the evidence shows that the defendant never offered to pay the plaintiff the value the real estate had without whatever post-1964 improvements were made. Even if the Occupying Claimant's statute applied, that refusal would defeat her rights under that statute. See S. 76-301, R.R.S. 1943, and cases annotated to it.
The judgment of the trial court was correct and is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626426/ | 464 So.2d 172 (1985)
John Wade CARTER, Appellant,
v.
STATE of Florida, Appellee.
No. 84-1082.
District Court of Appeal of Florida, Second District.
January 23, 1985.
Rehearing Denied February 28, 1985.
*173 Robert P. Polli and Bennie Lazzara, Jr., of Bennie Lazzara, Jr., P.A., Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
SCHEB, Acting Chief Judge.
John Wade Carter was adjudicated guilty of second-degree murder with a firearm and attempted second-degree murder with a firearm. He was sentenced pursuant to the sentencing guidelines to twenty-two years imprisonment for the murder charge and fifteen-years probation for the attempted murder. The sentences are to run consecutively. The court also imposed a minimum mandatory prison term of three years.
Defendant raises several points on appeal, all relating to the sentences imposed by the trial court. First, he argues that the trial court erred when it doubly enhanced his sentence for the murder charge by reclassifying and enhancing the crime from first-degree felony to a life felony, see section 775.087(1), and then imposing a three-year mandatory minimum sentence, see section 775.087(2). He relies on Whitehead v. State, 450 So.2d 545 (Fla. 3d DCA), petition for review granted, Case No. 65,492 (Fla. December 13, 1984), for the propostition that this is an impermissible double enhancement.
We disagree that the "double enhancement" here was impermissible. We agree with the First District's opinion in Brown v. State, 460 So.2d 546 (Fla. 1st DCA 1984). There, the court held that the legislature did not intend subsections (1) and (2) of section 775.087 to be alternative methods of enhancement. The court pointed out that subsection (1) applies to reclassification of all felonies, while subsection (2) provides for a mandatory minimum imprisonment only for certain felonies named therein. Thus, the two subsections serve separate functions in deterring and punishing both the presence of firearms during the commission of felonies in general and the use of firearms for the commission of certain specified felonies. See also Judge Pearson's dissenting opinion in Whitehead, 450 So.2d at 546. We recognize that our decision places us in conflict with the Third District's opinion in Whitehead.
Defendant also argues that the trial court erred in retaining jurisdiction over his sentence pursuant to section 947.16(3). We agree. The purpose of the statute is to prohibit parole of a criminal defendant without the approval of the trial judge until after that defendant has served a specified portion of his sentence. Williams v. State, 374 So.2d 1086 (Fla. 2d DCA 1979). However, parole is no longer available to the defendant because he was sentenced pursuant to the guidelines. § 921.001(8). Thus, the court erred in retaining jurisdiction over defendant's sentence. See Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984).
We reject all of the remaining points raised by defendant.
Accordingly, we strike the trial court's retention of jurisdiction but affirm defendant's judgment and sentences in all other respects.
DANAHY and SCHOONOVER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/104110/ | 324 U.S. 490 (1945)
A.H. PHILLIPS, INC.
v.
WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION U.S. DEPARTMENT OF LABOR.
No. 608.
Supreme Court of United States.
Argued March 2, 1945.
Decided March 26, 1945.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.
*491 Mr. Joseph B. Ely, with whom Messrs. Frederick M. Kingsbury and Edward T. Collins were on the brief, for petitioner.
Miss Bessie Margolin, with whom Solicitor General Fahy, Messrs. Robert L. Stern, Douglas B. Maggs and Archibald Cox were on the brief, for respondent.
Mr. Charles B. Rugg filed a brief on behalf of the American Retail Federation, as amicus curiae, urging reversal.
MR. JUSTICE MURPHY delivered the opinion of the Court.
Section 13 (a) (2) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1067, 29 U.S.C. § 213 (a) (2), states that the wage and hour provisions of the Act shall not apply with respect to "any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce." The issue posed by this case is whether employees working in the warehouse and central office of an interstate grocery chain store system are "engaged in any retail . . . establishment" within the meaning of § 13 (a) (2) so as to be exempt from the wage and hour provisions.
The petitioner corporation operates a chain of 49 retail grocery stores in cities and towns within a 35-mile radius from Springfield, Massachusetts. Of these stores, 40 are in Massachusetts and 9 are in Connecticut. Quite apart from *492 these retail stores, petitioner maintains a separate warehouse and office building in Springfield in which work the employees involved in this case.
The warehouse is the only one maintained by petitioner and it services all the 49 stores. Except for bread, pastry and milk, which are secured from local sources, all of petitioner's merchandise is delivered by rail and truck to the warehouse where it is divided and then delivered by petitioner's trucks to the individual stores according to need. About 80% of the merchandise passing through the warehouse is received from outside Massachusetts, while about 18% of the total sales by dollar volume of the merchandise shipped from this warehouse is accounted for by petitioner's Connecticut stores. Each week a regular order is delivered to each store from the warehouse and additional deliveries are made as required. Merchandise is supplied on the basis of requisitions prepared by individual store managers, subject to revision by one of the three superintendents in the central office. All of petitioner's sales are made exclusively at the retail stores and no deliveries to customers are made from the warehouse.
Employees in the central office, which is located in the same building as the warehouse, perform the usual functions of checking invoices, paying bills, making out payrolls, keeping inventory records, checking store deliveries and the like. The various employees in the warehouse and the truck drivers handle the physical work connected with the receipt, storage and shipment of merchandise. None of these employees segregates his time as between interstate and intrastate shipments; both types of shipments are handled indiscriminately to and from the warehouse.
On the basis of these facts, the Administrator of the Wage and Hour Division sought to enjoin petitioner from violating the overtime and record provisions of the Act. The District Court granted the injunction, holding (1) *493 that the warehouse and central office employees were engaged in interstate commerce within the meaning of the Act and (2) that they were not exempted from the wage and hour provisions by reason of § 13 (a) (2) since the warehouse and office building did not constitute a retail establishment. 50 F. Supp. 749. The First Circuit Court of Appeals affirmed as to both points. 144 F.2d 102. Petitioner, however, has sought review here only as to the second point. And certiorari was granted because of the conflicting views expressed on this issue by lower appellate courts.[1]
The Fair Labor Standards Act was designed "to extend the frontiers of social progress" by "insuring to all our able-bodied working men and women a fair day's pay for a fair day's work." Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people. We accordingly agree with the two courts below that the exemption contained in § 13 (a) (2) is inapplicable in this case and that the employees involved are entitled to the benefits of the wage and hour provisions of the Act. We hold, in other words, that the warehouse and central office of petitioner's chain store system cannot properly be considered a retail establishment within the meaning of § 13 (a) (2).
*494 It is necessary, in the first place, to understand the true nature of petitioner's warehouse and office. The prime function of petitioner's chain store system is to sell groceries at retail. Like most large chains, however, petitioner has found it economically feasible to perform and integrate both the retail and wholesale functions of the grocery business. The independent wholesaler or middleman has been eliminated from the channel of distribution of petitioner's merchandise. Petitioner not only operates the retail outlets but purchases the merchandise in quantity from producers, stores it in a warehouse and systematically allots it to the individual stores. Certain economies in operation result from the direct mass buying and centralized merchandising control which would otherwise be impossible to achieve.[2] A warehouse and a central office such as petitioner maintains are vital factors in this integration of the retail and wholesale functions. They are necessary instruments for the successful performance of the wholesale aspects of a multi-function business of this type.
There are, to be sure, certain distinctions between the wholesale activities of a chain store system and those of an independent wholesaler. Thus a chain store enterprise does not customarily sell merchandise in its warehouse to retailers or other wholesale customers as does an independent wholesaler.[3] The goods stored in a chain store warehouse are merely distributed rather than sold to the retail stores. See Liggett Co. v. Lee, 288 U.S. 517, 537, 538. But this and other differences that can be found arise from the fact that the chain organizations have completely *495 meshed the retail and wholesale functions. Many of the costs and risks normally assumed by the wholesale merchant because of his independent and competitive nature are eliminated by the chain store organization. The resulting savings and simplifications serve only to emphasize some of the major effects of the apparent trend away from the independent middleman in our economy of distribution.[4] The disappearance of the independent middleman, together with many of his separate operations and charges, does not mean, however, that his essential intermediary or wholesale function of moving goods from producer to retailer has been abolished. In this instance it has only been taken over by the retailer, acting through its own distinct wholesale units.[5]
In a realistic sense, therefore, most chain store organizations are merchandising institutions of a hybrid retail-wholesale nature. They possess the essential characteristics of both the retailer and the wholesaler. Their wholesale functions, which are integrated with but are physically distinct from their retail functions, are performed through their warehouses and central offices. That *496 fact is the essential key to the problem presented by this case. It serves to make clear the inapplicability of § 13 (a) (2) to petitioner's warehouse and central office employees.
Section 13 (a) (2) by its very terms exempts only those employees engaged in a retail or service establishment operating primarily in local commerce. Petitioner claims that its retail stores, warehouse and central office together constitute a "retail establishment" within the meaning of this exemption. The lack of merit in this claim is obvious. Even if, as petitioner urges, the word "establishment" referred to an entire business or enterprise, the combined retail-wholesale nature of petitioner's interstate business would prevent it from properly being classified as a local "retail establishment." But if, as we believe, Congress used the word "establishment" as it is normally used in business and in government[6] as meaning a distinct physical place of business petitioner's enterprise is composed of 49 retail establishments and a single wholesale establishment. Since the employees in question work in the wholesale establishment, § 13 (a) (2) is plainly irrelevant.
Moreover, it is quite apparent from the sparse legislative history of § 13 (a) (2) that Congress did not intend to exempt as a "retail establishment" the warehouse *497 and central office of an interstate chain store system. From the standpoint of its legislative ancestry, § 13 (a) (2) is the offspring of a manifest desire to exclude from the scope of the Act "business in the several States that is of a purely local nature." Sen. Rep. 884, 75th Cong., 1st Sess., p. 5. Congress was interested in exempting those regularly engaged in local retailing activities and those employed by small local retail establishments, epitomized by the corner grocery, the drug store and the department store.[7] It felt that retail concerns of this nature do not sufficiently influence the stream of interstate commerce to warrant imposing the wage and hour requirements on them. Ibid. p. 5. Section 13 (a) (2) is a part of the Act only because of the fear that § 13 (a) (1), in exempting employees regularly engaged in a "local retailing capacity," did not clearly exclude those employed by local retailers who are situated near state lines and who make occasional interstate sales. Walling v. Jacksonville Paper Co., 317 U.S. 564, 571.
Here petitioner's warehouse and central office employees are performing wholesale duties in the very midst of the stream of interstate commerce. They constantly deal with both incoming and outgoing interstate shipments. *498 Such tasks are completely unlike those pursued by employees of the small local retailers, who were the sole concern of Congress in § 13 (a) (2). These duties, rather, are economically, functionally and physically like those of the independent wholesaler's employees who, when engaged in interstate commerce, are admittedly entitled to the benefits of the Act. We fail to perceive in § 13 (a) (2) or in its Congressional background any intent to discriminate against chain store employees engaged in wholesale activities or to give to chain store warehouses a competitive advantage in labor costs over independent wholesalers.
We are thus unable to say that the warehouse and central office employees of petitioner's interstate chain store system plainly and unmistakably fall within either the terms or the spirit of the exemption specified in § 13 (a) (2). Economic facts, legal principles and consistent and thorough administrative interpretation[8] of the exemption all compel the conclusion that § 13 (a) (2) is not applicable to the facts of this case. We therefore affirm the judgment of the court below.
Affirmed.
The CHIEF JUSTICE, MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON concur in the result.
MR. JUSTICE ROBERTS dissents.
NOTES
[1] The decision below in this case is in accord with the reasoning of Walling v. American Stores Co., 133 F.2d 840 (C.C.A. 3), but is in conflict with Allesandro v. C.F. Smith Co., 136 F.2d 75 (C.C.A. 6), Walling v. L. Wiemann Co., 138 F.2d 602 (C.C.A. 7), and Walling v. Block, 139 F.2d 268 (C.C.A. 9).
[2] See Beckman and Nolen, The Chain Store Problem (1938), pp. 48-50.
[3] Although petitioner's warehouse apparently does no wholesale business with independent retailers, many chain store warehouses sell certain quantities of merchandise to outside retailers in addition to supplying their own retail outlets. Beckman and Nolen, The Chain Store Problem (1938), p. 8.
[4] Does Distribution Cost Too Much?, Twentieth Century Fund (1939), pp. 81-85, 100-110, 178-181, 345-346; Beckman and Nolen, The Chain Store Problem (1938), pp. 7-9, 42-61; 15 Encyclopaedia of the Social Sciences (1935), pp. 411-416.
[5] "While it is frequently said that the function of wholesaling is vital even though the wholesaler may not be in every line, some amplification of this remark seems advisable. Some agency must provide the machinery to move all merchandise from the producer to the retailer. Regardless of what this function is called, it is essentially the same as wholesaling. . . . Chain stores, once they assume enough importance to justify a warehouse, are engaged in wholesaling as well as retailing. Whatever goods are handled at retail outlets must be bought in quantity, handled in the warehouse and allotted to the individual stores in much the same way that wholesalers would serve the independent dealers." Chamber of Commerce of the United States, National Wholesale Conference, Report of Committee I, Wholesalers' Functions and Services (1929), pp. 13-14.
[6] Prior to the adoption of the Fair Labor Standards Act the term "establishment" was used in the sense of physical place of business by many census reports, business analyses, administrative regulations, and state taxing and regulatory statutes. As applied to chain store systems, "establishment" thus described each unit in the chain. For example, under the N.R.A. Codes of Fair Competition, prepared by committees from the industries concerned, retail stores of a grocery chain were subject to the Retail Food and Grocery Trade Code, while the chain store warehouses and central offices were treated as separate "establishments" subject to the Wholesale Food and Grocery Trade Code. See N.R.A. Codes of Fair Competition, Vol. IV, pp. 460-1, 470, and Vol. V, pp. 5-6, 13-14.
[7] The original language of § 13 (a) (2), introduced as an amendment by Representative Celler, applied to any retail "industry." Representative Celler stated that if the amendment were accepted "retail dry goods, retail butchering, grocers, retail clothing stores, department stores will all be exempt." Several other Congressmen expressed their desire to assure the exemption of "the corner grocery store man or the filling station man" and "the local groceryman, druggist, clothing store, meat dealer any merchant in fact." 83 Cong. Rec. 7299, 7436-7438. The exemption as it finally emerged from the joint House-Senate conference committee applied to any retail "establishment" rather than "industry." The use of the word "establishment" is more appropriate to the small local retailers which Congress had in mind and clearly indicates that Congress meant by it something less or different than "industry" or "enterprise."
[8] See Interpretative Bulletin No. 6, United States Department of Labor, Wage and Hour Division, originally issued in December, 1938, and revised in June, 1941. See also First Annual Report of the Administrator of the Wage and Hour Division, United States Department of Labor (1940), p. 21, informing Congress that "each physically separated store of a chain of stores will be considered a separate `retail establishment.' The warehouses and central executive offices of the chain are not `retail establishments.'" | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/104651/ | 336 U.S. 511 (1949)
FARRELL
v.
UNITED STATES ET AL.
No. 267.
Supreme Court of United States.
Argued January 14, 1949.
Decided April 4, 1949.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Silas Blake Axtell and Myron Scott argued the cause for petitioner. With them on the brief was G. Lester W. Curry.
Newell A. Clapp argued the cause for the United States, respondent. With him on the brief were Solicitor General *512 Perlman, Assistant Attorney General Morison, Samuel D. Slade and Alvin O. West.
MR. JUSTICE JACKSON delivered the opinion of the Court.
Petitioner, a seaman, brought suit in admiralty to recover damages under the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, and maintenance, cure and wages under maritime law. The issue of negligence was decided against him by both courts below and the claim is abandoned here. Petition for certiorari to review other issues was granted. 335 U.S. 869.
I. MAINTENANCE AND CURE.
The facts which occasion maintenance and cure for this seaman are not in dispute. The claimant, 22 years of age and in good health, was a member of the Merchant Marine. He was in the service of the S.S. James E. Haviland, a merchant vessel owned and operated by the United States as a cargo and troop ship. On February 5, 1944, she was docked at Palermo, Sicily, and Farrell was granted shore leave which required his return to the ship by 6 p.m. of the same day. He overstayed his leave and about eight o'clock began, in rain and darkness, to make his way to the ship. He became lost and was misdirected to the wrong gate, by which he entered the shore-front area about a mile from where the ship lay moored. The area generally was blacked out but petitioner's companion, forty or fifty feet away, saw him fall over a guard chain into a drydock which was lighted sufficiently for night work then in progress. Farrell was grievously injured.
He was treated without expense to himself in various government hospitals until June 30, 1944, when he was *513 discharged at Norfolk, Virginia, as completely disabled. He is totally and permanently blind and suffers post-traumatic convulsions which probably will become more frequent and are without possibility of further cure. From time to time he will require some medical care to ease attacks of headaches and epileptic convulsions. The court below concluded that the duty of a shipowner to furnish maintenance and cure does not extend beyond the time when the maximum cure possible has been effected. Petitioner contends that he is entitled to maintenance as long as he is disabled, which in this case is for life.
Admittedly there is no authority in any statute or American admiralty decisions for the proposition that he is entitled to maintenance for life. But an argument is based upon the ancient authority of Cleirac, Jugmens d'Oleron, Arts. 6 and 7 and notes by Cleirac; Consolato del Mare, cc. 182, 137; 2 Pard Coll. Mar. 152; to which American authorities have paid considerable respect. See Story, Circuit Justice, in Reed v. Canfield, Fed. Cas. No. 11,641, p. 429. A translation of the note relied upon reads:
"If in defending himself, or fighting against an enemy or corsairs, a mariner is maimed, or disabled to serve on board a ship for the rest of his life, besides the charge of his cure, he shall be maintained as long as he lives at the cost of the ship and cargo. Vide the Hanseatic law, art. 35." 1 Peters' Admiralty Decisions (1807), Appendix, p. xv.
Article 35 of the Laws of the Hanse Towns referred to reads:
"ART. XXXV. The seamen are obliged to defend their ship against rovers, on pain of losing their wages; and if they are wounded, they shall be healed and cured at the general charge of the concerned in *514 a common average. If anyone of them is maimed and disabled, he shall be maintained as long as he lives by a like average." Ibid., p. civ.
We need not elaborate upon the meanings or weight to be given to these medieval pronouncements of maritime law. As they show, they were written when pirates were not operatic characters but were real-life perils of the sea. When they bore down on a ship, all was lost unless the seaman would hazard life and limb in desperate defense. If they saved the ship and cargo, it was something in the nature of salvage and for their sacrifice in the effort a contribution on principles of average may have been justly due. Perhaps more than humanitarian considerations, inducement to stand by the ship generated the doctrine that saving the ship and her cargo from pirates entitles the seaman to lifelong maintenance if he is disabled in the struggle.
But construe the old-time law with what liberality we will, it cannot be made to cover the facts of this case. This ship was not beset but was snug at berth in a harbor that had capitulated to the United States and her allied forces six months before. No sea rovers, pirates or corsairs appeared to have menaced her. It is true that the ship was engaged in warlike operations and was a legitimate target for enemy aircraft or naval vessels, which made her service a war risk, but at that time and place no enemy attack was in progress or imminent. Even if we pass all this and assume the ship always to have been in potential danger and in need of defense, this seaman at the time of his injury had taken leave of her and he is in no position to claim that he was a sacrifice to her salvation. Far from helping to man the ship at the moment, he was unable to find her; he was lost ashore and not able adequately to take care of himself. However patriotic his motive in enlisting in the service and *515 however ready he may have been to risk himself for his country, we can find no rational basis for awarding lifetime maintenance against the ship on the theory that he was wounded or maimed while defending her against enemies.
It is claimed, however, even if the basis for a lifetime award does not exist, that he is entitled to maintenance and cure beyond the period allowed by the courts below. This is based largely upon statements in the opinion of the Court in Calmar Steamship Corp. v. Taylor, 303 U.S. 525. There the question as stated by the Court was whether the duty of a shipowner to provide maintenance and cure for a seaman falling ill of an incurable disease while in its employ, extends to the payment of a lump-sum award sufficient to defray the cost of maintenance and cure for the remainder of his life. The Court laid aside cases where incapacity is caused by the employment and said, "We can find no basis for saying that, if the disease proves to be incurable, the duty extends beyond a fair time after the voyage in which to effect such improvement in the seaman's condition as reasonably may be expected to result from nursing, care, and medical treatment. This would satisfy such demands of policy as underline the imposition of the obligation. Beyond this we think there is no duty, at least where the illness is not caused by the seaman's service."
It is claimed that when the Court reserved or disclaimed any judgment as to cases where the incapacity is caused "by the employment" or "by the seaman's service" it recognized or created such cases as a separate class for a different measure of maintenance and cure. We think no such distinction exists or was premised in the Calmar case. In Aguilar v. Standard Oil Co., 318 U.S. 724, the Court pointed out that logically and historically the duty of maintenance and cure derives from *516 a seaman's dependence on his ship, not from his individual deserts, and arises from his disability, not from anyone's fault. We there refused to look to the personal nature of the seaman's activity at the moment of injury to determine his right to award. Aside from gross misconduct or insubordination, what the seaman is doing and why and how he sustains injury does not affect his right to maintenance and cure, however decisive it may be as to claims for indemnity or for damages for negligence. He must, of course, at the time be "in the service of the ship," by which is meant that he must be generally answerable to its call to duty rather than actually in performance of routine tasks or specific orders.
It has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations. The seaman could forfeit the right only by conduct whose wrongful quality even simple men of the calling would recognize insubordination, disobedience to orders, and gross misconduct. On the other hand, the master knew he must maintain and care for even the erring and careless seaman, much as a parent would a child. For any purpose to introduce a graduation of rights and duties based on some relative proximity of the activity at time of injury to the "employment" or the "service of the ship," would alter the basis and be out of harmony with the spirit and function of the doctrine and would open the door to the litigiousness which has made the landman's remedy so often a promise to the ear to be broken to the hope.
Nor is it at all clear to us what this particular litigant could gain from introduction of the distinction for which contention is made. If we should concede that larger *517 measure of maintenance is due those whose injury is caused by the nature of their employment, it would seem farfetched to hold it applicable here. Claimant was disobedient to his orders and for his personal purposes overstayed his shore leave. His fall into a drydock that was sufficiently lighted for workmen to be carrying on repairs to a ship therein was due to no negligence but his own. These matters have not been invoked to forfeit or reduce his usual seaman's right, but it is difficult to see how such circumstances would warrant enlargement of it. We hold that he is entitled to the usual measure of maintenance and cure at the ship's expense, no less and no more, and turn to ascertainment of its bounds.
The law of the sea is in a peculiar sense an international law, but application of its specific rules depends upon acceptance by the United States. The problem of the sick or injured seaman has concerned every maritime country and, in 1936, the General Conference of the International Labor Organization at Geneva submitted a draft convention to the United States and other states. It was ratified by the Senate and was proclaimed by the President as effective for the United States on October 29, 1939. 54 Stat. 1693. Article 4, paragraph 1, thereof, provides: "The shipowner shall be liable to defray the expense of medical care and maintenance until the sick or injured person has been cured, or until the sickness or incapacity has been declared of a permanent character."
While enactment of this general rule by Congress would seem controlling, it is not amiss to point out that the limitation thus imposed was in accordance with the understanding of those familiar with the laws of the sea and sympathetic with the seaman's problems.
The Department of Labor issued a summary of the Convention containing the following on this subject: "The shipowner is required to furnish medical care and *518 maintenance, including board and lodging, until the disabled person has been cured or the disability has been declared permanent." Robinson, Admiralty, p. 300.
Representatives of the organized seamen have recognized and advised Congress of this traditional limitation on maintenance and cure. When Congress has had under consideration substitution of a system of workmen's compensation on the principles of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. §§ 901-950, organized seamen, as we have heretofore noted, have steadfastly opposed the change. Hust v. Moore-McCormack Lines, 328 U.S. 707, 715. In doing so the legal representative of one maritime union advised the Committee on Merchant Marine of the House of Representatives that maintenance extended during "(a) the period that a seaman receives treatment at a hospital either as an in-patient or an out-patient; and (b) during a period of convalescence, and until the maximum cure is obtained."[1] Another representative, after defining it to include hospitalization said. "In addition a seaman is entitled to recover maintenance while outside of the hospital until his physical condition becomes fixed."[2]
That the duty of the ship to maintain and care for the seaman after the end of the voyage only until he was so far cured as possible, seems to have been the doctrine of the American admiralty courts prior to the adoption of the Convention by Congress,[3] despite occasional ambiguity of language or reservation as to possible *519 situations not before the court. It has been the rule of admiralty courts since the Convention.[4]
Maintenance and cure is not the only recourse of the injured seaman. In an appropriate case he may obtain indemnity or compensation for injury due to negligence or unseaworthiness and may recover, by trial before court and jury, damages for partial or total disability. But maintenance and cure is more certain if more limited in its benefits. It does not hold a ship to permanent liability for a pension, neither does it give a lump-sum payment to offset disability based on some conception of expectancy of life. Indeed the custom of providing maintenance and cure in kind and concurrently with its need has had the advantage of removing its benefits from danger of being wasted by the proverbial improvidence of its beneficiaries. The Government does not contend that if Farrell receives future treatment of a curative nature he may not recover in a new proceeding the amount expended for such treatment and for maintenance while receiving it.
The need of this seaman for permanent help is great and his plight most unfortunate. But as the evidence has afforded no basis for supplying that need by finding negligence, neither does the case afford a basis for distortion of the doctrine of maintenance and cure. This seaman was in the service of the United States and extraordinary measures of relief while not impossible are not properly addressed to the courts.
II. WAGES.
The two courts below have held the petitioner entitled to wages until the completion of the voyage at the port *520 of New York on March 28, 1944. The petitioner contends that he has a right to wages for twelve months from December 16, 1943, the date he joined the vessel. The articles of the Haviland, signed by petitioner, were on a printed form which left a vacant space subject to the following footnote: "Here the voyage is to be described, and the places named at which the ship is to touch; or, if that cannot be done, the general nature and probable length of the voyage is to be stated, and the port or country at which the voyage is to terminate." The Haviland's articles, for security reasons during the war, did not describe the voyage in such terms but provided, "from the Port of Philadelphia, to A point in the Atlantic Ocean to the eastward of Phila. and thence to such ports and places in any part of the world as the Master may direct or as may be ordered or directed by the United States Government or any department, commission or agency thereof . . . and back to a final port of discharge in the United States, for a term of time not exceeding 12 (Twelve) calendar months." It is not questioned that the general custom in ships, other than the coastwise trade, is to sign on for a voyage rather than for a fixed period. But it is contended that the last clause of this contract obligated the petitioner to serve for twelve calendar months, irrespective of the termination of the voyage, and therefore gave him the right to wages for a similar period. The contract is not an uncommon form and complied with war-time requirements as to voyage contracts.[5] We think, in the light of the custom of the industry and the condition of the times, there is nothing ambiguous about it and that it obligated the petitioner only for the voyage on which the ship was engaged when he signed on and that, when it terminated at a port of *521 discharge in the United States, he could not have been required to reimbark for a second voyage. The twelve-month period appears as a limitation upon the duration of the voyage and not as a stated period of employment. We think the court below made no error in determining the wages.
For the reasons set forth, the judgment is
Affirmed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK, MR. JUSTICE MURPHY and MR. JUSTICE RUTLEDGE concur, dissenting.
I. Wages. The articles bound Farrell to a voyage on the vessel which was en route to "a point in the Atlantic Ocean to the eastward of Phila. and thence to such ports and places in any part of the world as the Master may direct or as may be ordered or directed by the United States Government or any department, commission or agency thereof . . . and back to a final port of discharge in the United States, for a term of time not exceeding 12 (Twelve) calendar months." If this were a coastwise voyage, there would be little question that Farrell could recover his wages for the entire twelve-month period. See Enochasson v. Freeport Sulphur Co., 7 F.2d 675; Jones v. Waterman S.S. Corp., 155 F.2d 992, 996. I agree with Judge Kirkpatrick that the principle of those cases is likewise applicable to foreign voyages. Shields v. United States, 73 F. Supp. 862, 866. Any difference is not apparent. In each the seaman binds himself for the period. The obligations to pay wages should be coterminous with that responsibility. Enochasson v. Freeport Sulphur Co., supra. The number of voyages made is therefore immaterial. It is the extent of the voyage that could be demanded that is controlling.
*522 II. Maintenance and Cure. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, involved maintenance and cure[1] for an incurable disease which manifested itself during the seaman's employment but was not caused by it. The Court held that the shipowner's liability ended when the seaman was cured as far as possible, reserving the question whether a different rule would apply if the incapacity arose from the employment. P. 530. The question reserved is now presented, for an injury received on returning to a ship from shore leave is plainly incurred in the service. Aguilar v. Standard Oil Co., 318 U.S. 724; Reed v. Canfield, Fed. Cas. No. 11,641. Justice Story was of the view that the ship remained liable until the cure was completed. Reed v. Canfield, supra. That was in 1832. Intervening decisions in the lower courts qualified that view. It was held that the right to maintenance and cure extended to a reasonable time beyond the end of the voyage.[2] The problem of what was a reasonable time remained. The test adopted by the Court is that it extends through the period when the maximum cure within the reach of medical science has been achieved.
But that test is not sufficiently discriminating.
Even though a maximum cure has been effected, two entirely different states of being may result when the injured man is left totally disabled.
(1) He may be totally disabled but no longer in need of medical aid to care for the condition created by the injury nor without means of providing maintenance. That is nor the present case, at least so far as medical care is concerned. And we need not determine what rights to maintenance and cure one so situated has.
*523 (2) One injured in the service of a ship may not only be permanently disabled after reaching the point of maximum cure. He may also be in need of future medical aid to sustain that condition and be without means of maintenance. These needs may extend to end of life. That is the present case, at least so far as medical care is concerned.[3] In this situation payments to give continuing needed care of wounds have been allowed, even though a maximum cure has been effected. The Josephine & Mary, 120 F.2d 459, 462, 464. Cf. Saunders v. Luckenbach Co., 262 F. 845, 847.
In the present case an award for maintenance and cure to cover a six-month period after discharge from the hospital was allowed. Nevertheless even though Farrell's expenses of care may be continuing, the district court judge refused any further award. I do not believe that these future expenses should be any less a charge on the ship than past expenses. To conclude as the Court now does that they are not is to ignore in part the salutary policy supporting the doctrine of maintenance and cure.
Maintenance and cure is an ancient doctrine. It reflects in part the concern which the state has had from an early date in a poor and improvident class of workers. See Mr. Justice Story in Harden v. Gordon, Fed. Cas. No. 6,047. It also recognizes the imperative necessity of the nation to maintain in peace and war a merchant marine. *524 If men are to go down to the sea in ships and face the perils of the ocean, those who employ them must be solicitous of their welfare. Maintenance and cure is an inducement on the part of masters and owners to be solicitous of the health, safety, and welfare of seamen while they are in the service. It gives a degree of security, though injury or sickness be incurred. It gives service in the merchant marine a dignity equal to the important function it performs. It reflects "the great public policy of preserving this important class of citizens for the commercial service and maritime defence of the nation." Id. at p. 483.
Accordingly, the injuries of seamen arising out of the service were made a charge against the enterprise to the extent at least of maintenance and cure. Their maintenance and cure was indeed part of the cost of the business. It is nonetheless a legitimate cost though the expense continues beyond the time when a maximum cure has been effected.[4]
NOTES
[1] Hearings before the House Committee on Merchant Marine and Fisheries, 76th Cong., 1st Sess., on H.R. 6726 and H.R. 6881, p. 83.
[2] Id., p. 131.
[3] See, for example, The Wensleydale, 41 F. 829; The Bouker No. 2, 241 F. 831; Skolar v. Lehigh Valley R. Co., 60 F.2d 893; The Point Fermin, 70 F.2d 602.
[4] See, for example, Lindgren v. Shepard S.S. Co., 108 F.2d 806; The Josephine & Mary, 120 F.2d 459; Luksich v. Misetich, 140 F.2d 812.
[5] 7 Fed. Reg. 2477.
[1] Maintenance includes food and lodging; and cure means care. The Bouker No. 2, 241 F. 831, 835.
[2] The Bouker No. 2, supra; The Mars, 149 F. 729; The Eastern Dawn, 25 F.2d 322; The Troy, 121 F. 901; Geistlinger v. International Mercantile Marine Co., 295 F. 176.
[3] The District Court said:
"He will continue to have these spells and to have pain in the area of the fracture. He will need treatment and medical care from time to time and probably some care for the rest of his life. He was always a healthy individual before his accident and never showed any signs of epilepsy before then. The medical testimony also shows that his condition of blindness is permanent, that in all likelihood his convulsive attacks will continue, and possibly become more frequent, and without any possibility of a further cure. The attacks and headaches mentioned will require some care from time to time whenever they persist."
[4] The Shipowners' Liability Convention of 1936, 54 Stat. 1693, does not require a contrary result. Article 4, paragraph 1, provides:
"The shipowner shall be liable to defray the expense of medical care and maintenance until the sick or injured person has been cured, or until the sickness or incapacity has been declared of a permanent character."
But Art. 12 contains a power to depart from that standard in this type of case. It provides:
"Nothing in this Convention shall affect any law, award, custom or agreement between shipowners and seamen which ensures more favourable conditions than those provided by this Convention." | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1626681/ | 767 So. 2d 277 (2000)
David GRAHAM, Appellant,
v.
Junita L. GRAHAM, Appellee.
No. 1999-CA-00538-COA.
Court of Appeals of Mississippi.
August 22, 2000.
*278 J. Elmo Lang, Pascagoula, Attorney for Appellant.
BEFORE McMILLIN, C.J., LEE, AND MOORE, JJ.
MOORE, J., for the Court:
¶ 1. Appellant David Graham and Appellee Junita L. Graham were granted an irreconcilable differences divorce. The Jackson County Chancery Court ordered David Graham to pay Junita Graham $500 per month permanent alimony and $7,250 from his retirement account. Aggrieved, Appellant cites the following issues on appeal:
*279 I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING $500 PER MONTH IN PERIODIC ALIMONY; AND
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING JUNITA L. GRAHAM $7,250 FROM THE RETIREMENT FUND OF DAVID GRAHAM
We reverse and render the alimony award and affirm the award of $7,250 from David Graham's retirement account.
FACTS
¶ 2. Appellant David Graham and Appellee Junita L. Graham were married in March 1977. They separated in 1991 or 1992, approximately fourteen to fifteen years later. On July 8, 1998, approximately seven years after their separation, David initiated divorce proceedings. David charged Junita with desertion. Junita counterclaimed, alleging habitual cruel and inhuman treatment or alternatively irreconcilable differences. Before trial, David and Junita agreed to an irreconcilable differences divorce and left disposition of the financial matters to the chancellor. Junita sought child support for their twenty-year-old daughter, settlement proceeds from David's pending asbestos lawsuits, alimony, and a portion of David's retirement account.
¶ 3. Upon hearing testimony that the parties' daughter was not in school, was working forty hours per week, and had a baby of her own, the chancellor ruled that the daughter was emancipated and denied Junita's request for child support. The chancellor noted that Junita never requested child support during the period she and David were separated. The chancellor further ruled that Junita was not entitled to any portion of settlement funds David received from his asbestos lawsuits. The chancellor awarded Junita $500 per month in permanent alimony. The chancellor added David's and Junita's retirement accounts together and then divided the total in half. Giving David credit for one-half of Junita's retirement account, the chancellor ordered David to pay $7,250 from his retirement account.
LAW AND ANALYSIS
¶ 4. As a threshold issue we note that Junita did not file a brief or otherwise oppose this appeal. In Jackson v. Walker, 240 So. 2d 606 (Miss.1970), the court reversed and rendered a case in which the appellee failed to file an appellate brief, holding:
The failure to file this brief (by the appellee) is tantamount to a confession of error, and will be accepted as such, and the judgment of the court below will be reversed, since an answer to the appellant's brief cannot be safely made by us, without our doing that which the appellee, by its attorney, should have done, i.e., brief the appellee's side of the case. This we are not called on to do....
Id.
¶ 5. In Reddell v. Reddell, 696 So. 2d 287, 288 (Miss.1997), the court, noting that the appellee failed to file a brief, stated: "We have held that `[f]ailure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error.'" Id. (citing Dethlefs v. Beau Maison Dev. Corp., 458 So. 2d 714, 717 (Miss.1984)).
¶ 6. While failure to file a brief is tantamount to a confession of error:
Automatic reversal is not required where the appellee fails to file a brief. The appellant's argument "should at least create enough doubt in the judiciousness of the trial court's judgment that this Court cannot `say with confidence that the case should be affirmed.'" Where the appellant's brief makes out an apparent case of error, however, this Court is not obligated to *280 look to the record to find a way to avoid the force of the appellant's argument.
Selman v. Selman, 722 So. 2d 547, 551 (Miss.1998) (internal cites omitted). With these guiding principals in mind, we consider whether David's brief makes out an apparent case of error.
I. DID THE TRIAL COURT ABUSE ITS DISCRETION BY AWARDING $500 PER MONTH IN PERIODIC ALIMONY?
¶ 7. Alimony awards are within the chancellor's discretion, and we may not reverse unless we find the chancellor committed manifest error in his findings of fact and abused his discretion. Ethridge v. Ethridge, 648 So. 2d 1143, 1145-46 (Miss. 1995). We will not disturb a chancellor's findings of fact if they are supported by credible evidence in the record. Id. at 1146. To determine whether to award permanent periodic alimony, the chancellor must consider the twelve factors enunciated in Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss.1993).
¶ 8. The chancellor in the case sub judice recited the Armstrong factors in his oral ruling, but did not explain which factors justified his alimony award to Junita. Junita earns approximately $33,000 per year as an electrical supervisor at Ingall's Shipyard. During the parties' seven-year separation, which Junita initiated, Junita never petitioned the court for child support or alimony. While Junita's financial statement indicates her monthly expenses exceeded her monthly income, the chancellor did not inquire into the necessity of these expenses, and Junita did not explain why she could not financially manage on $33,000 per year. In determining whether to award alimony, the "chancellor should consider the reasonable needs of the wife and the right of the husband to lead as normal a life as possible with a decent standard of living." Gray v. Gray, 562 So. 2d 79, 83 (Miss.1990). Further, "[a]limony is not a bounty to which [the wife] became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to [the husband]." Beacham v. Beacham, 383 So. 2d 146, 148 (Miss.1980). Junita was obviously able to manage without financial support from David given that she never petitioned for support during their lengthy separation. David's brief creates enough doubt in the judiciousness of the chancellor's judgment that we cannot say with confidence that the alimony award should be affirmed.
¶ 9. We are further disturbed that the chancellor did not consider fault in making the alimony determination. David and Junita agreed to an irreconcilable differences divorce; therefore, fault was not an issue in the actual divorce proceedings. However, "[a]llowing evidence of fault in an alimony determination is a factor specifically listed in Armstrong. Nothing in that case indicates such a factor may only be considered in a fault-based divorce." Driste v. Driste, 738 So. 2d 763, 765 (Miss.Ct.App. 1998).
¶ 10. Junita left the marital domicile and procured living quarters for herself and her daughter. The supreme court has held:
"Under the law of this State, in the absence of evidence showing that [the wife] is ill, or that there was some other legitimate compelling reason requiring her to live separate and apart from her husband[the husband] is not required to pay her alimony, separate maintenance, or to support her, so long as she wrongfully refuses to return to her conjugal duties."
Cox v. Cox, 183 So. 2d 921, 924 (Miss.1966). We are aware that fault is not always an absolute bar to alimony. Hammonds v. Hammonds, 597 So. 2d 653, 654 (Miss.1992) (citing Retzer v. Retzer, 578 So. 2d 580, 593 (Miss.1990)). However, in cases where alimony is awarded to a spouse at fault, it is "not to enable the wife to maintain the lifestyle to which she had been accustomed, but to prevent her from destitution." *281 Id. In the case sub judice, there is no evidence that Junita would be rendered destitute by denial of alimony.
¶ 11. Given that the chancellor did not inquire into Junita's reasonable need of support, and that he did not consider Junita's fault for alimony purposes, we find that David made an apparent case of error on the alimony issue. We deem Junita's failure to file a brief a confession of error and hereby reverse the alimony award and render judgment in David's favor.
II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY AWARDING JUNITA L. GRAHAM $7,250 FROM THE RETIREMENT FUND OF DAVID GRAHAM?
¶ 12. David argues that the chancellor should have looked at the value of his and Junita's retirement funds at the time of their separation and not at the time of the divorce; however, David cited no authority to support this assertion. The Mississippi Supreme Court "has consistently held that an unsupported assignment of error will not be considered." Ellis v. Ellis, 651 So. 2d 1068, 1072 (Miss. 1995). Even had David cited authority to support this assertion, there was no evidence regarding the value of the parties' respective retirement funds as of the separation date. David did not make an apparent case of error.
¶ 13. Given the concern Judge Irving raised in his separate opinion, we will address the merits of this issue. Judge Irving directs our attention to Godwin v. Godwin, 758 So. 2d 384 (Miss.1999), a recent Mississippi Supreme Court case which is similar to the case sub judice. In Godwin, the court affirmed the chancellor's decision to consider the husband's retirement account as separate property where the husband began contributing to the account several years after an order for separate maintenance had been entered. The court stated:
It is true, of course, that neither the Legislature nor this Court has ever recognized the concept of a "legal separation" in this State's divorce law, and we do not do so in this case. However, an order for separate maintenance is recognized and is viable. Under the circumstances of this case, the order creates a point of demarcation with respect to the parties and their estates.
Id. at (¶ 6) (emphasis added).
¶ 14. The case sub judice differs from Godwin in two respects. First, the parties' respective retirement accounts were in existence before the separation; David simply asked the chancellor to consider his post-separation contributions as separate property. Second, there was no separate maintenance order in the present case. Unlike Godwin, there was no clear line of demarcation as to what date David and Junita ceased being a family unit. There is a separation date to which both parties agree; however, the parties continued to have financial ties. Specifically, Junita kept David on her medical insurance policy during the separation period, and David filed a claim on the policy after the separation. Further, there was evidence at trial that before the parties' separation, Junita had withdrawn approximately $5,000 from her retirement account to pay marital expenses during a period when she and David were both unemployed. Considering these facts, we can find no error in the chancellor's finding that the parties' retirement accounts should be equally divided. Thus, we affirm.
¶ 15. JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT AWARDING JUNITA GRAHAM $500 PERIODIC PERMANENT ALIMONY IS HEREBY REVERSED AND RENDERED AND JUDGMENT AWARDING JUNITA GRAHAM $7,250 FROM DAVID GRAHAM'S RETIREMENT FUND IS AFFIRMED. COSTS OF APPEAL ARE TO BE EQUALLY DIVIDED BETWEEN APPELLANT AND APPELLEE.
*282 McMILLIN, C.J., LEE, AND THOMAS, JJ., CONCUR. IRVING, J., CONCURRING IN PART, DISSENTING IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING AND SOUTHWICK, P.JJ., AND BRIDGES, J. PAYNE, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.
PAYNE, J., dissenting:
¶ 16. As I respectfully disagree with the majority's disposition of this matter, both procedurally and substantively, I must dissent. First, regarding the majority's discussion of the failure to file rule, I believe that if Junita's failure to answer David's appeal amounts to a confession of error, as it well could be under our law and those precedents cited by the majority, then her failure to file a brief works to her disadvantage in toto and not as we, as a reviewing court, may selectively decide. While a horrible result would flow from such an action, by referencing our cases on the appellee's failure to file a brief, I think it a better course of action to reverse and render on both issues.
¶ 17. Nevertheless, assuming that the majority is correct in its piecemeal application of the failure to file a brief rule, I would find that the alimony award was appropriate. David has not set out an apparent case of error. Alimony is not punishment to a payor and should not be awarded as such. Welch v. Welch, 755 So. 2d 6 (¶ 31) (Miss.Ct.App.1999); Tilley v. Tilley, 610 So. 2d 348, 354 (Miss.1992). Conversely, I believe that alimony should not be denied a recipient for punishment. On this record, I cannot determine that the chancellor afforded too much weight to Junita's alleged fault. The chancellor only seemingly discounted what insignificant evidence he did hear about fault, which is consistent with Driste but not with the more important rule cited in Welch of using alimony as a punitive measure.
¶ 18. The financial statements of the parties showed that David's income surpassed Junita's and that he could comfortably pay this periodic amount. The fact that Junita had not requested temporary support during the couple's separation is irrelevant. David sought the divorce on the fault ground of desertion; Junita did not want an divorce, as evidenced by the record in her colloquy with the chancellor. However, she did eventually consent to a no fault divorce. Junita left the marital domicile in the early 1990s but only after David refused to pay rent on the family home. According to Junita, she was forced to leave so that she and her child would have a place to live. After Junita left, David paid the rent on the marital dwelling for several months before finally moving himself. As Armstrong requires, fault is a factor to be considered in an award of alimony. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss.1993). The majority correctly points out that we have previously held that fault is a proper consideration for alimony purposes in no fault divorce cases. Driste v. Driste, 738 So. 2d 763, 765 (Miss.Ct.App.1998). However, we stopped short in Driste of making a general pronouncement regarding the consideration of fault for alimony purposes in a no fault marital dissolution; we noted that the chancellor should exercise discretion to limit such testimony. Id. In the case sub judice, though the chancellor noted that he heard no evidence regarding fault because it was an irreconcilable differences divorce, Junita did testify that she left the marital home only after David refused to pay rent. David admitted that he and Junita did not get along and that he invited her to leave if she so desired.
¶ 19. Because I believe the chancellor committed no error, I would affirm. Therefore, I dissent[1].
*283 IRVING, J., concurring in part, dissenting in part:
¶ 20. I agree with that part of the majority's decision to reverse the chancellor's award of alimony to Junita. However, because I also believe the award of a portion of David's retirement to Junita should also be reversed, I must respectfully dissent from that portion of the majority's decision affirming the award.
¶ 21. As noted by the majority, Junita did not file a brief on appeal, yet the majority penalizes David for not citing authority to support his contention that the chancellor should have computed the value of his and Junita's retirement accounts as of the date of separation and not the date of the divorce. At least, David raised the issue on appeal while Junita remained mute. I do not believe we should affirm the chancellor's decision simply because David failed to cite any authority. Rather, we ought to look at the equities involved. Approaching the matter from this perspective will, in my opinion, compel a different result than that reached by the majority.
¶ 22. These parties were separated and living apart for approximately seven years prior to their divorce. It is difficult for me to see how either one could legitimately claim that the increase in the value of their separate retirement accounts occurring during the seven years of their separation should be treated as marital property. Any individual contributions made during this period were certainly made without any tangible or intangible assistance from the other.
¶ 23. The majority concludes that "[e]ven had David cited authority to support this assertion, there was no evidence regarding the value of the parties's respective retirement funds as of the separation date." Majority opinion at page 281. I would not hold that against him since Junita did not present any authority to uphold her award. It seems to me that the fundamental issue here, as it was in the court below, is whether the date of separation or date of divorce is the appropriate date from which to compute the value of retirement accounts in equitable distribution of marital estates when there is a significant period of separation prior to the divorce. This is a question of law. If the applicable date is the date of separation, the fact that no evidence was presented regarding the value as of that date does not authorize the chancellor to make a division computed on the value as of a different date, e.g., the date of the divorce. I believe the equities in this case, at least, argue in favor of computing the value as of the date of separation and not the date of the divorce.
¶ 24. Undergirding the principle of equitable distribution of marital assets at the time of the divorce is the recognition that both parties contributed to the accumulation of the marital assets. Thus, it seems to me that in cases where the evidence is clear that both parties did not contribute to the accumulation of a particular asset acquired during the course of the marriage (in this case, the increased value of David's retirement account), there is no compelling reason for equitable division of that asset. Such a case would be rare except in situations where, as here, the parties were separated for a long period of time prior to filing for divorce. What if, instead of being separated seven years prior to the divorce, the parties here had been separated *284 and living apart for fifteen or twenty years? Should they share equitably in their respective assets acquired during the period of separation simply because they were still married? I think not. I believe the same should be true as to that portion of the value of the parties' respective retirement accounts which can be clearly shown to have vested or appreciated during the extended separation.
¶ 25. I have done some limited research in an effort to ascertain whether there is any existing Mississippi case law directly on point regarding this issue. I did not find a case exactly on point, but Godwin v. Godwin, 758 So. 2d 384 (Miss.1999) provides some guidance. In Godwin, the parties were separated in June 1987, and for the next seven years, Mr. Godwin paid separate maintenance to Mrs. Godwin pursuant to a decree for separate maintenance rendered by the court on December 11, 1987. On October 13, 1995, Mrs. Godwin filed for a divorce and sought an equitable share of Mr. Godwin's deferred compensation plan which had been acquired by him during the separation. The Mississippi Supreme Court, in affirming the chancellor's refusal to grant Mrs. Godwin an equitable share of the plan, had this to say:
Assets acquired after an order for separate maintenance should be considered the separate property of the parties, absent a showing of either (1) contribution to the acquisition of the asset by the other spouse as contemplated in our decisions in Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss.1994) and Magee v. Magee, 661 So. 2d 1117, 1123 (Miss.1995) or, (2) acquisition of the asset through the use of marital property.
There is no evidence in the record that suggests Barbara contributed to Bill's deferred compensation plan with the People's Bank and Trust Company. Bill started contributing to this plan from his income several years after the 1987 order for separate maintenance. The chancellor did not abuse his discretion in finding this asset was Bill's separate property.
Id. at 386.
¶ 26. The Godwin court also noted that "[u]nder the circumstances of this case, the order creates a point of demarcation with respect to the parties and their estates." Id. There is no order for separate maintenance in our case, but I can see no logical reason why that should make a difference in Junita's favor. Separate maintenance is premised on a spouse's obligation to support the non-offending spouse until such time as the offending spouse is willing to restore the other to bed and board. Recognition of the marriage's continual existence is an integral part of the rationale for the grant of separate maintenance. Separation without an award of separate maintenance does not in my view present a less compelling statement of demarcation with respect to the parties and their estates.
¶ 27. The rationale behind equitable distribution of the marital estate is that both parties contributed to the accumulation of the estate. A marriage license alone should not entitled one spouse to share in what the other spouse has accumulated if the accumulation was not the result of joint contributions. When parties are living together, even if one is not working a job outside of the home, both of them contribute in meaningful ways to the total accumulation of the marital assets. When they have been living apart for an extended period of time, with or without a separate maintenance order, there is just simply no rational basis for equitably dividing assets which were acquired during the extended separation unless a nexus can be shown between the acquisition of the asset and the marriage, other than the fact that it was acquired while the parties were still legally married.
¶ 28. If the parties have been separated for only a short period of time, the same equities would not apply. Parties may find it helpful to separate sometimes while they attempt to repair their marriage. *285 Certainly such a separation for such purpose should not serve as a line of demarcation for purposes of dividing up the marital estate if the attempt at reconciliation fails. However, that period of time should be reasonably limited. I doubt many marriages are reconciled after five years of separation.
¶ 29. In the absence of proof that Junita contributed to the increase in the value of David's retirement account during the period of their separation or that David made no contributions himself to the account during the separation, I believe Godwin is persuasive authority for finding the relevant date for valuation of David's retirement account to be the date of separation, not the date of the divorce.
¶ 30. The majority finds support for "equal" division of the parties' retirement accounts in the fact that Junita, during the course of the marriage, withdrew approximately $5,000 from her retirement account to support the family when both she and David were laid off work. That is an argument for treating the retirement accounts as marital assets and making an equitable division of them, a point that is not disputed by this dissent. The question is not whether the retirement accounts are marital assets subject to equitable division, but what valuation date should be utilized to make that division.
¶ 31. The record is clear that the withdrawal was not made during the period of the parties' separation or shared with David. In fact, Junita did not recall when she made the withdrawal, but she knew it was not during the separation. It is reasonable to infer from her testimony that the withdrawal was not even made near the date of the parties' separation, an event in all likelihood she would have remembered. She had been employed at her current employment for twenty-one years. Nevertheless, since the withdrawal was not made during the separation, it should have no bearing on the determination of the date to be utilized for valuation purpose.
¶ 32. The majority also attempts to support its argument that the date of divorce is the proper date for valuation of the marital estate by suggesting that though the parties agreed they had been separated nearly eight years prior to the divorce, they "continued to have financial ties. Specifically, Junita kept David on her medical insurance policy during the separation period, and David filed a claim on the policy after separation." Majority opinion at 281. I have to respectfully say that the record does not clearly support this assertion. It is not entirely clear whether Junita was asserting that David filed on her insurance when he got sick during the marriage from something other than asbestos or whether she was implying that he filed during his recent hospitalization. What is clear from the record is that these parties, according to their testimony, were married in March 1977, separated twice in 1991 and had their final separation in September 1992. After the separation, the parties went their separate ways.
¶ 33. There is absolutely no hint from either David or Junita that they continued to share any financial ties after the separation. In fact, Junita testified that she left David because he would not pay the rent (mortgage) on the house. She said they were evicted, given five days to vacate, so she found some place for her and her daughter to live. David said that as Junita was leaving, she said "she could do bad all by herself." Eventually, the marital domicile was foreclosed.
¶ 34. It strains logic to conclude that Junita would allow David to file on her insurance nearly eight years later when she left the marital domicile because he was not, in her estimation, shouldering his financial obligations to the family. What is a more reasonable interpretation is that she was talking about David's filing on her insurance during the marriage. Junita's answer came in response to a question she was asked following her statement that David had just gotten out of the hospital. *286 It is noteworthy that Junita's answer, interpreted literally, indicates she had been taking care of David before he went in the hospital and that David filed on her insurance to cover the charges of his hospital stay. The record, however, belies any suggestion that Junita took care of David following the separation or immediately before his hospital stay. Finally, I note that during the separation, David purchased another home. Junita did not claim in the court below nor does she claim here that she should receive an equitable share of that property.
¶ 35. For the reasons stated, I respectfully dissent.
KING AND SOUTHWICK, P.JJ., AND BRIDGES, J., JOIN THIS SEPARATE WRITTEN OPINION.
NOTES
[1] Although not an issue in this case because of Junita's and her counsel's dereliction in not filing a responsive brief nor a cross-appeal, the chancellor below made erroneous findings regarding David's obligation to pay child support and Junita's entitlement to David's personal injury settlements.
First, Junita's failure to request child support from David during the period of the separation in no way impacts the father's duty to support his child. Varner v. Varner, 588 So. 2d 428 (Miss.1991). It may well be that Junita, as custodian of the minor child's funds and provider of support for the minor child, would have been entitled to child support for the years of the separation, and this opinion should not be read otherwise.
Second, the chancellor incorrectly stated that Junita had "no claim" to the funds of David's asbestosis settlements. Junita did have a limited claim, as any funds David received to replace his wages or other losses experienced during the marriage are subject to equitable distribution principles. Tramel v. Tramel, 740 So. 2d 286 (¶ 17) (Miss.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626331/ | 169 N.W.2d 255 (1969)
STATE of South Dakota, Plaintiff and Respondent,
v.
Gust HERMANDSON and Maynard Rinkley, Defendants and Appellants.
No. 10497.
Supreme Court of South Dakota.
July 3, 1969.
*256 Roy A. Nord, Madison, Mumford, Protsch & Sage, Howard, for defendants and appellants.
Frank L. Farrar, Atty. Gen. and Thomas R. Vickerman, Asst. Atty. Gen., Pierre, for plaintiff and respondent.
BIEGELMEIER, Presiding Judge.
The complaint (SDC 1960 Supp. 34.1501) charges that defendants did on November 6, 1966:
"unlawfully throw and cast the rays of a vehicle headlight upon the highway in an *257 area wherein big game may reasonably be expected to be while having in their possession and under their control a firearm, to-wit: a Ruger .22 caliber semi automatic rifle whereby any big game could be killed which weapon was fully assembled and loaded in violation of Section 25.0702 SDC 1939 as amended."
The section was amended to include this offense by Chapter 96, Laws of 1943.
The facts are that about 9:00 p.m. on November 6, 1966, State Game Warden Peterson received a call that a deer had been hit on Highway 81 near Arlington. When he arrived and while he was dressing it out he heard gunshots. He called Warden Hoekman by radio and when he arrived they both heard shots coming from the north and saw a vehicle approaching from that direction and so they headed north in one of the warden's cars. They soon met a pickup truck which stopped and as appellants' brief states it:
"Peterson proceeded toward the back of the truck and looked into the box. This testimony was objected to and the objection denied. * * * Peterson said he saw a knife and blood in the pickup. He took the knife * * * and put it in Mr. Hoekman's car. * * * Hoekman reached in the cab of the truck and grabbed the rifle which was between the driver, Hermandson, and Appellant Rinkley."
Defendants served and relied on four assignments of error. The first one states the court erred in allowing testimony as to the stopping of defendant Hermandson's vehicle and the search thereof and that the stopping was in violation of defendant's constitutional rights. SDC 1960 Supp. 33.0735 relates to the content and service of assignments of error; it requires that each assignment shall state only one claim of error, separately stated and numbered and "shall refer to the page of the transcript * * * where the alleged error appears." This assignment designating pages 36 and 37 of the transcript does not set out nor can it set out any question, objection or ruling as no objection was made to any question. An examination of pages 36 and 37 discloses the evidence there relates to the warden's driving north to meet a vehicle coming south; they turned on their red lights and it stopped in front of them and defendant Hermandson stepped out of the pickup and they had a conversation. The testimony of the prior witness Peterson is to the same effect and all the testimony relating to the stopping of the pickup went in without objection. Peterson further testified he and Hoekman got out of his car and approached the pickup; that Hoekman stopped at the cab and Peterson proceeded around the side of the pickup and the following occurred:
A. "I walked around towards the side and rear of the pickup and looked into the box."
"That is objected to for the reason that there is no proper foundation for it and his testimony has already been suppressed."
The Court: "Overruled. This is testimony. There was no motion to suppress the testimony, but now that you have raised that, that motion has been denied and you will probably want a continuing objection, but for the time being I will rule on the one objection which is overruled."
This record shows defendants did not object to testimony of this witness or the right of the wardens to stop the pickup but only of what the warden may have seen after he walked to the rear of it. Defendant may not for the first time raise that question in the appellate court. Application of Heintz on Behalf of Trembly, 78 S.D. 188, 99 N.W.2d 794 and State v. Pirkey, 22 S.D. 550, 118 N.W. 1042, 18 Ann. Cas. 192 (rev. on other grounds in 24 S.D. 533, 124 N.W. 713), evidence admitted without objection is not subject to a motion to strike it.
*258 The trial court was correct in overruling the objection as to foundation for the witness Peterson was testifying what he did and saw in the presence of defendants and there was no lack of foundation. The objection that the court had suppressed the "testimony" did not correctly state the court's ruling. Counsel is bound by the grounds stated in his objection if it is overruled. Ross v. Foss, 77 S. D. 358, 92 N.W.2d 147; Fryda v. Vesely, 80 S.D. 356, 123 N.W.2d 345; Accord: State v. Dietz, N.D., 115 N.W.2d 1, citing 88 C.J.S. Trial § 125(b).
The evidence of stopping defendant's auto being without objection the officers could properly testify what they saw from where they stood on the public highway as this did not amount to a search within the constitutional provisions cited. In State v. Huffman, 1967, 181 Neb. 356, 148 N.W.2d 321, cert. den. 386 U.S. 1024, 87 S. Ct. 1384, 18 L. Ed. 2d 466, after stopping a car and during an "informal detention" the officer flashed his light through the car window and observed a stolen rifle and in Dickerson v. State, 1967, 43 Ala. App. 694, 200 So. 2d 487, the court held there was no "search" of an automobile where a gun was visible to an officer when he looked into the automobile. The court quoted from Carver v. Ross, E.D.N. C., 257 F. Supp. 894, that "It is not a search to see what is patent and obvious." See also People v. McDonald, 1968, 13 Mich.App. 226, 163 N.W.2d 796; State v. Howard, 1969, Neb., 167 N.W.2d 80 and State v. Smith, 1969, Neb., 167 N.W.2d 568. Cf. State v. Valstad, 1969, Minn., 165 N.W.2d 19.
Viewed, however, under the guidelines for searches and seizures in State v. McCreary, 1966, 82 S.D. 111, 142 N.W.2d 240, the testimony was admissible as there was probable cause for the actions of the officers. The McCreary opinion states a search of an automobile must meet the test of reasonableness under both Article 4 of the amendments to the U. S. Constitution and Article VI, § 11 of the S.D. Constitution and cites Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 and State v. Merrell, 52 S.D. 129, 216 N.W. 874. The court pointed out the difference between search of a house or rooms and search of an automobile and quoted from the Preston opinion that:
"Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar."
This distinction as to a movable vehicle was earlier recognized in Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 and, in Alston v. State, 1966, 30 Wis. 2d 88, 140 N.W.2d 286, said to be a significant factor. Here, as in Alston, there "was a great risk that the contraband and the suspects themselves would leave the area if the police were to seek a warrant" at a time and place when no magistrate was available. State v. Clifford, 273 Minn. 249, 141 N.W.2d 124. The considerations which permit search of an automobile have been distinguished from those governing the search of a home because of the danger, inherent in the mobility of an automobile, that evidence may be lost and what is reasonable must necessarily depend on the facts of each case. State v. Clifford, supra, and many authorities cited.
Officers are not required to know facts sufficient to prove guilt, but only knowledge of facts sufficient to show probable cause for an arrest or search. These are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause exists when the facts and circumstances within the officer's knowledge and information warrant a man of reasonable caution in the belief an offense *259 has been or is being committed. United States v. Zimple, 1963, 7 Cir., 318 F.2d 676, citing Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 and quoting from Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879.
It must be kept in mind all game animals are the property of the state except they may be used by a person upon killing or taking the same as by law provided, SDC 25.0411; it is unlawful to hunt or shoot at deer except by permission of the Game Commission, SDC 1960 Supp. 25.0701 and a license issued pursuant to SDC 1960 Supp. 25.0302, both as variously amended. It is the duty of a licensee at any time to exhibit his license to any person, SDC 25.0314. Game wardens are authorized to make this request of persons lawfully hunting and also to arrest without a warrant persons detected in the act of violating any game or fish law. SDC 25.0114, amended by Ch. 134, Laws of 1963. Here the wardens heard several shots fired between ten and eleven o'clock at night and they observed lights being shone in such manner as to aid persons illegally hunting deer known to be in that area; as men of reasonable caution they had probable cause to stop the men coming from the place the shots were fired and lights shone, either to ask them to exhibit their licenses or detain them to investigate if they were the persons involved in those acts. This justified a search even though the defendants were not then arrested.
Defendant Rinkley challenges the sufficiency of the evidence to uphold his conviction. It appears from the evidence the pickup truck and gun were owned by defendant Hermandson and he was driving the pickup when the officers met them; defendant Rinkley testified he did not handle the gun at any time. This evidence was undisputed and the fact that the gun was standing between defendant Hermandson (the driver) and defendant Rinkley (the passenger) was insufficient to charge Rinkley with any control or possession of it. The evidence was, therefore, insufficient to sustain Rinkley's conviction and must be reversed. The evidence is sufficient as to defendant Hermandson.
The judgment as to defendant Hermandson is affirmed and as to Rinkley is reversed.
ROBERTS, RENTTO and HOMEYER, JJ., concur.
HANSON, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626395/ | 25 So. 3d 505 (2008)
MUNDY MAINT. & SERVS., LLC
v.
RANDALL ALEXANDER.
No. 2060437.
Court of Civil Appeals of Alabama.
February 29, 2008.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626408/ | 17 Mich. App. 267 (1969)
169 N.W.2d 357
PEOPLE
v.
TOWNSEND
Docket No. 5,904.
Michigan Court of Appeals.
Decided April 23, 1969.
Leave to appeal denied December 17, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Paul R. Adams, Assistant Prosecuting Attorney, for the people.
Howard W. Patch, for defendant on appeal.
BEFORE: McGREGOR, P.J., and R.B. BURNS and DANHOF, JJ.
Leave to appeal denied December 17, 1969. See 383 Mich. 752.
DANHOF, J.
On June 6, 1968 defendant was found guilty by a jury of having committed murder in the second degree, CL 1948, § 750.317 (Stat Ann 1954 *269 Rev § 28.549) and was sentenced to life imprisonment.
Defendant's formal education terminated while in the ninth grade; he was 18 years of age at the time of his arrest, and had previously been given an undesirable discharge from the military service.
He appeals, questioning whether he effectively waived his right to have counsel present during police custodial interrogations.
A Walker hearing[1] was held on May 23, 1968 and after extensive testimony, the judge found:
"Well, based upon the evidence presented to the court, the court makes a finding that the defendant herein, Robert Earl Townsend, was advised of his constitutional rights as set forth in the Miranda Case. And that after being so advised, he freely, voluntarily and understandingly waived his rights in any admissions that came thereafter would be admissible in evidence."
Findings of fact are not set aside on appeal unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it. GCR 1963, 517.1; People v. Walker (1967), 6 Mich. App. 600.
According to testimony presented at the Walker hearing, detectives Utz and O'Shaughnessy of the Jackson city police department arrested defendant at approximately 11:30 p.m., December 13, 1967, at a tavern, and immediately transported him via car to the police station. O'Shaughnessy testified that while inside the bar he advised defendant
"of his constitutional rights, that he did not have to say anything, anything he said could be used *270 against him; if he could not afford an attorney, an attorney would be supplied by the county, and that did he want an attorney present."
He testified further that defendant
"advised me that he did not know anything of the matter; that he would be willing to go to the police station with us, and answer any questions concerning this matter."
Relative to what happened en route to the station, O'Shaughnessy testified that
"Mr. Townsend offered explanations as to where he was tonight. We advised him to be quiet, that we did not wish to question him at this time, and he remained silent."
O'Shaughnessy testified further that on arrival at the station defendant
"was taken to the detective bureau, and seated at a desk. At this time he was offered Form A, otherwise known as Recognition of Rights Form, the rights form was read to him. He again read it. I asked him if he understood such form, he advised me that he did. I asked him if he wanted an attorney present during any questioning. He stated that he did not at this time, unless he was able to talk to his mother."[2]
*271 Counsel then asked, "What happened then, please?"
O'Shaughnessy replied,
"I asked him if he would sign such a form, and he said no, he would not sign it. He would answer any questions, but he would not sign it until he contacted his mother. We offered a telephone to him to call his mother, and he stated that it was too late in the morning [sic], that he would wait until morning to call her."
Counsel then asked, "What did he say about answering questions again, please?"
O'Shaughnessy replied,
"That he would gladly answer any questions as he did not know anything about this matter."
Counsel continued, "Was he then asked any questions?"
O'Shaughnessy replied,
"No sir."
This was the critical moment in the proceedings. It is defendant's contention that he did not waive his right to counsel at this time. Subsequently, defendant was taken to a State police post where a breath analyzer test was administered. O'Shaughnessy testified that on the return trip defendant volunteered, "that he did not know anything about killing a woman." It is this statement that defendant claims was extremely prejudicial testimony to the accused's case since it was made before the accused was informed of the sex of the homicide victim. It is the further contention of the defendant *272 that the trial court committed reversible error in allowing such testimony to be admitted.
Defendant relies heavily on the landmark case of Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974). Excerpts from that case which have particular relevance to the instant case follow:
"Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain *273 from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. * * *
"An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. * * *
"Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right. * * *
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. * * *
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois (1964), 378 U.S. 478, 490 (84 S. Ct. 1758, 1765; 12 L. Ed. 2d 977, 986) note 14. This Court has always set *274 high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst (1938), 304 U.S. 458 (58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained."
Relying on the Miranda Case, supra, defendant contends that all police interrogation should properly have ceased when he expressed the desire to telephone his mother. However, this Court views defendant's request to speak to his mother as a condition precedent to his wanting an attorney present during any questioning. Additionally, when the police offered to meet this condition by offering defendant a telephone to call his mother he declined stating that it was too late to call her, but he would gladly answer any questions. Only after defendant talked to his mother on the telephone at approximately 2:45 a.m. and she said, "have the court appoint one, because I don't have the money," did he say he would like to have an attorney present. Even after talking with his mother defendant did not immediately ask for counsel. The assistant prosecutor had to ask him three times if he would like an attorney before he finally answered yes.
It is clear that this case does not involve threats, coercion, duress, or compulsion, but only whether *275 defendant effectively and properly waived his right to have counsel present during police custodial interrogations.
The Arkansas Supreme Court in Sossamon v. State (1968), 245 Ark 302 (432 S.W.2d 469) held that where the defendant was advised of his constitutional rights under the Miranda decision it was not necessary to repeat the Miranda warnings prior to taking a written statement from the defendant on the following morning; that being a continuation of the experience of the previous day.
The United States Court of Appeals in United States v. Vanterpool (CA2, 1968), 394 F2d 697 said:
"However, the words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning along with the required information are sufficient."
The court then went on to hold that defendant had been adequately informed of his right to have counsel present during police custodial questioning even though the questioning took place before the Miranda decision was handed down and the exact words of Miranda were not used; and, further that defendant had indicated a willingness to proceed without counsel.[3]
From the transcripts in the instant case it is apparent that detectives Utz and O'Shaughnessy were aware of the holding in the Miranda Case, supra, and of the requirements and guides set forth therein.
There were discrepancies between the testimony of the two detectives who arrested defendant. The variations in detective Utz's testimony were of such *276 a nature as to be entirely consistent with a faulty memory. Indeed, the transcript of the Walker hearing contains many statements by Utz that his memory was faulty as to some aspects of what happened on the night in question. At times he referred to a police report in an attempt to refresh his recollection.
However, O'Shaughnessy was very definite in his testimony. Even defense counsel said in referring to O'Shaughnessy's testimony,
"Well, your Honor, he's been so very definite about the informing of the defendant of his constitutional rights, and has been very strong and certain in his testimony that he told them about and the whole bit, that I think that this is a very important issue, and in fact the issue squarely before the court today, and I should be allowed latitude in cross examination to see how clearly he is on other things that happened that night."
It was entirely proper for the judge in assessing the testimony of the two detectives to give more weight to the definite, unequivocal testimony of defective O'Shaughnessy.
Therefore, it is our opinion that the record supports the finding of the trial court that the defendant was advised of his constitutional rights as required by Miranda v. Arizona, supra, and that he freely, voluntarily and understandingly waived them.
Affirmed.
All concurred.
NOTES
[1] People v. Walker (On Rehearing) (1965), 374 Mich. 331; People v. Walker (1967), 6 Mich. App. 600.
[2] Form A provided: "I understand that I have a right to remain silent, that I need not talk to anyone, and I do not have to answer any questions that I might be asked.
"I also understand that any statements that I might make or any answers that I might give to questions may be used against me in court.
"I further understand that I may speak with an attorney or anyone else of my own choice at any time, and that I have a right to have an attorney present before I answer any questions, or make any statement; and I further understand that if I cannot afford an attorney, the court will appoint one for me, who I may talk with before I answer any questions or make any statements.
"I understand and recognize that these are my rights; I have an opportunity to use the telephone; and I now desire to answer any questions or to make a statement; I understand that at any time I may decide not to give further information or answer further questions."
[3] The Miranda rules applied in the Vanterpool Case, supra, because the trial began after Miranda had been decided. Johnson v. New Jersey (1966), 384 U.S. 719 (86 S. Ct. 1772, 16 L. Ed. 2d 882). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626467/ | 356 S.W.2d 170 (1962)
Ray COWAN, Appellant,
v.
STATE of Texas, Appellee.
No. 10,969.
Court of Civil Appeals of Texas, Austin.
March 21, 1962.
Rehearing Denied April 11, 1962.
*171 Jake Jacobsen, Austin, for appellant.
Will Wilson, Atty. Gen., Gordon C. Cass, Vernon O. Teofan, Houghton Brownlee, Jr., Asst. Attys. Gen., Austin, William S. Lott and J. R. Owen, Georgetown, for appellee.
RICHARDS, Justice.
Suit was brought by the State of Texas, appellee in the District Court of Williamson County, Texas, against Ray Cowan and others, all of whom reside in counties other than Williamson, for the recovery of penalties and injunctive relief under the Texas Anti-Trust Statutes (Arts. 7426-7447, Vernon's Ann.Civil Statutes). On September 11, 1961 defendant Ray Cowan, appellant, filed his plea of privilege under the provisions of Art. 1995, Vernon's Civil Statutes, to be sued in Travis County, the county of his residence, which plea of privilege was in proper form and duly served on appellee on September 12, 1961 as provided in Rule 86, Texas Rules of Civil Procedure. On September 25, 1961 appellee filed a pleading in two parts, the first part being designated as a "Motion to Quash" and the second part as a "Controverting Affidavit." On October 27, 1961 appellant filed his motion to strike the controverting plea for the reason that it was not filed within the ten day period required by Rule 86.
At the hearing on the plea of privilege appellant urged his motion to strike but the Trial Court decided to hear the motions urged by both parties prior to entering his rulings thereon, stating that there would be no waiver of the respective positions of the parties if they would proceed with the arguments.
During the hearing on appellee's motion to quash appellant's plea of privilege, appellee offered in evidence its petition in the main suit which was objected to by appellant for the reason that appellee having failed to timely file his controverting plea the Trial Court could not consider appellee's petition as evidence of any venue fact.
At the conclusion of the argument the Trial Court sustained appellee's motion to quash the plea of privilege, overruled appellant's motion to strike the controverting affidavit and overruled his plea of privilege, from which ruling appellant has perfected this appeal.
Appellant assigns as error the actions of the Trial Court (1) in failing to sustain his plea of privilege which was regular on its face because no controverting plea was timely filed; (2) in overruling his motion to strike the controverting plea of the State since good cause for its late filing was not shown, and (3) in sustaining appellee's motion to quash the plea of privilege thereby holding that a demurrer or other similar pleading is sufficient against a plea of privilege although not timely filed.
In the pleading filed by appellee, the part designated as the "Motion to Quash" states under oath that "it is a fact that said suit' is of a civil nature brought under Title 126, Arts. 7426-7447, V.C.S. and that Art. 7436, V.C.S. places venue in Williamson County. The part entitled the "Controverting Affidavit" in addition to setting out the grounds relied upon to maintain venue in Williamson County previously alleged in the "Motion to Quash" denies under oath the allegation in the plea of privilege that there is no exception to exclusive venue in the county of appellant's residence. Each of the designated instruments referred to and adopted appellee's petition and the allegations contained therein, which allegations were verified under oath as being true and correct.
Appellant concedes that each of the instruments come within the definition of the controverting plea referred to in Rule 86 as being a plea under oath setting out specifically the grounds relied upon to confer venue, which must be filed within ten days. It is well settled that if a plaintiff desires to file a controverting plea containing a demurrer to or a motion to quash a plea of privilege in addition to the other matters required in the controverting plea *172 under Rule 86, such pleadings may be included as part of the controverting plea but must be filed within the time permitted by the rule.
From the beginning of the jurisprudence of this State, the law has given to a litigant defendant the right to be sued in the county in which he is domiciled subject to certain exceptions. This policy is stated in Pool v. Pickett, 8 Tex. 122, as follows:
"The cherished policy of the law is that the inhabitants of the State shall be sued in the counties in which they respectively have their domiciles. This is the general rule, modified by certain exceptions specifically designated by the statute. This was the rule under the former or Spanish system of jurisprudence, and it has always been regarded as just in itself and eminently advantageous to defendants, for whose benefit it was intended.
"This rule cannot be defeated by any evasions or artifices intended merely for that purpose. The defendant cannot be dragged from the forum of his own domicile by any mere contrivance to evade the domestic jurisdiction."
which right appellant asserted by filing his plea of privilege to be sued in Travis County, the county of his residence, as required by Rule 86.
But Rule 86 also provides that after a plea of privilege has been filed:
"If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending."
When appellant filed his plea of privilege to be sued in Travis County, if appellee desired to controvert it it was necessary under Rule 86 to file a controverting plea specifically alleging facts to establish venue in Williamson County. Rule 86 contemplates that the controverting plea constitutes the plaintiff's pleadings on the issue of venue and places the burden upon him to plead therein the facts which will sustain venue in the county where the suit is filed. Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391, 393; A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622.
Appellee's controverting affidavit was not timely filed within the ten day period, in which case by a showing of good cause for failure to file the plea within the time required, the Trial Court within its discretion could have permitted the late filing and considered the plea of privilege and controverting affidavit on their merits. Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, 981. Here, however, appellee's counsel did not attempt to show good cause or request the Trial Court for permission to file its controverting affidavit for good cause under the provisions of Rule 5, T.R.C.P., and there was no waiver by appellant of the late filing of the controverting affidavit.
On the contrary, appellant filed his motion to strike the instrument designated as a "Motion to Quash" and "Controverting Affidavit." The Trial Court, however, contrary to the provisions of Rule 86 and Rule 5, permitted the filing of the so-called controverting affidavit, overruled appellant's motion to strike it, sustained the motion to quash and overruled the plea of privilege.
It is fundamental that when a plea of privilege has been filed and no controverting affidavit is filed within the time required by law and the time for such filing is not extended under Rule 5, the Trial Court is without jurisdiction to enter any order other than an order transferring the cause to the proper court. Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154, 155; Beard Drilling Co., Inc. v. Wilson, Tex.Civ.App., 348 S.W.2d 252, 254, error dism.; Southern Insurance Co. v. Rogers, Tex.Civ.App., 342 *173 S.W.2d 135, no writ history; Durrett v. Arctic Air, Inc., Tex.Civ.App., 319 S.W.2d 937, no writ history.
In its motion to quash appellee relies upon the provisions of Art. 7436, V.C.S., to maintain venue in Williamson County contending that (1) no plea of privilege is available to appellant since the phraseology of Art. 7436 precludes any transfer of a suit except upon change of venue allowed by the Court and (2) in the alternative, if a plea of privilege can be filed, it is subject to attack by the motion to quash even though such motion was not filed in the time provided by Rule 86, citing Yates v. State, Tex. Civ.App., 3 S.W.2d 114, no writ history, in support of its alternative contention.
Art. 7436 is, in part, as follows:
"Each firm, person, corporation or association of persons, who shall in any manner violate any provision of this subdivision shall, for each day that such violation shall be committed or continued, forfeit and pay a sum of not less than fifty nor more than fifteen hundred dollars, which may be recovered in the name of the State of Texas in the district court of any county in the State of Texas, and venue is hereby given to such district courts. When any such suit shall have been filed in any county and jurisdiction thereof acquired, it shall not be transferred to any other county except upon change of venue allowed by the court." (Italics supplied.)
Appellant on the contrary contends that Art. 7436 is a law authorizing or regulating a particular character of action (the Texas Anti-Trust Law) and comes within the class of actions specified in Exception 30, Art. 1995 and hence is subject only to attack as a plea of privilege case in the manner provided by Rules 86, 87, 89 and 385, T.R.C.P. (formerly Arts. 2007, 2008, 2019 and 2020, V.C.S.) and not by a motion to quash, a demurrer or special exception or other pleading, relying upon Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867.
Exception 30 to Art. 1995, V.C.S., reads as follows:
"30. Special venue.Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given."
Yates v. State, supra, involved a venue question arising under the provisions of Art. 5420, V.C.S., where no controverting affidavits were filed to the pleas of privilege. Motion to strike the demurrer was based upon the grounds (1) that since the pleas of privilege were not controverted by a plea under oath, the right to change the venue could not be raised by demurrer, (2) that the demurrer did not constitute a controverting plea to the plea of privilege within the purview of Art. 2007 (Rule 86), (3) that the demurrer came too late being filed more than three months after the pleas of privilege were filed, and (4) that the demurrer not being a controverting plea, the allegations of plaintiff's petition could not be used as a pleading thereon or as evidence. The Trial Court overruled the motion to strike, sustained the demurrer and overruled the plea of privilege on the ground that as a matter of law defendants were not entitled to a change of venue.
Appellee cites a number of cases as being in accord with and affirming the ruling of this Court in the Yates case. In Barnum v. Lancaster Hardware Co., Tex.Civ.App., 40 S.W.2d 1103, error dism., the Trial Court sustained the motion to strike the controverting plea because filed subsequent to the statutory time when such plea could have been legally filed but sustained the demurrer to the plea of privilege, holding as follows:
"If a plea of privilege be filed in a pending suit, and the allegations of fact contained therein are sufficient to make a prima facie case for the removal of the cause to the county of defendant's residence, then the plaintiff must file a controverting affidavit, or the court *174 must accept as true the venue facts, as alleged in defendant's plea of privilege, and enter a judgment of removal. However, if the allegations of fact in the plea of privilege are insufficient on their face to make a prima facie case for removal under the allegations of plaintiff's petition, and such insufficiency is brought to the attention of the court by a proper execution to the plea of privilege, it becomes the duty of the court to determine plaintiffs' exception under the allegations of his petition. Yates et al. v. State et al.; Humble Pipe Line Co. v. Kincaid, supra [Tex.Civ. App., 19 S.W.2d 144]."
The Court's opinion was rendered June 20, 1931.
In Lloyds America v. Lloyds Southwest Insurers, Tex.Civ.App., 56 S.W.2d 477, error dism., the Trial Court sustained plaintiff's general demurrer to the pleas of privilege although controverting affidavits had been timely filed. The Court of Civil Appeals in an opinion rendered January 11, 1933, held that the Trial Court erred in sustaining the demurrer but should have completed the hearing of the venue issue made by the plea of privilege and the controverting affidavit.
In Miller v. Burnet Mercantile Co., Tex. Civ.App., 65 S.W.2d 505, error dism., the Trial Court sustained a general demurrer to the plea of privilege from which action there was no appeal and judgment was entered for plaintiff. The defendant sought injunctive relief against the enforcement of the judgment against him and the Trial Court granted a temporary injunction which was later dissolved and the case dismissed. The Court of Civil Appeals held by way of dictum that under the ruling in the Yates case the Trial Court could pass upon the sufficiency of the plea of privilege in sustaining the general demurrer. The Court's opinion was rendered November 9, 1933.
In Schoellkopf Co. v. Daves, Tex.Civ. App., 71 S.W.2d 340, no writ history, the plea of privilege was not controverted although special exceptions were directed to its sufficiency in plaintiff's supplemental petition. The Court of Civil Appeals held that the rule has been definitely settled that a statutory plea of privilege not controverted by setting up under oath the fact or facts relied upon to confer venue should be sustained and the venue changed, but stated where venue is fixed by statute, a formal plea of privilege tenders no issue of fact to be tried, in which case the plea is demurrable, citing the Yates case, opinion rendered April 14, 1934.
In McCook v. Amarada Petroleum Corp., Tex.Civ.App., 73 S.W.2d 914, no writ history, pleas of privilege were filed but were not controverted except by general demurrer which was overruled by the Trial Court and the pleas of privilege sustained. In holding that the Trial Court not only had exclusive venue but exclusive jurisdiction of the suit the Court of Civil Appeals held that it was unnecessary to file a controverting affidavit to the pleas of privilege since this could be brought to the attention of the Court by general demurrer, citing the Yates case. This opinion was rendered May 29, 1934.
It should be noted that in all of the foregoing cases the opinions of the Court of Civil Appeals were rendered prior to the rendition of the opinions by the Supreme Court of Texas on April 28, 1937 in Universal Credit Co. v. Dunklin, supra, and the Court of Civil Appeals on June 4, 1937 in Universal Credit Co. v. Boling, Tex.Civ. App., 108 S.W.2d 836, holding that where venue is expressly made a part of the venue statutes under exception 30, Art. 1995, V.C. S., such issue could not be raised by general demurrer but only by a controverting affidavit.
Other cases cited by appellee are Thompson v. Pure Oil Co., Tex.Civ.App., 113 S.W.2d 662, no writ history, opinion rendered December 16, 1937, which although citing the Yates case does not sustain appellee's contention and Heard v. State, Tex.Civ. *175 App., 149 S.W.2d 237, no writ history. In the Heard case the State filed controverting affidavits to the pleas of privilege filed by all defendants, which controverting affidavits referred to and adopted the allegations of the State's petition. The State also filed general demurrers to the pleas of privilege, which were sustained by the Trial Court and the pleas of privilege overruled. The suit being one for the recovery of public lands in which the venue was fixed as a matter of law under Art. 5420, V.C.S., no issue of venue can arise under a plea of privilege. Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495, 498; Stanolind Oil & Gas Co. v. State, Tex.Civ.App., 153 S.W.2d 614, 616, no writ history.
But in Universal Credit Co. v. Boling, Tex.Civ.App., 103 S.W.2d 253, a suit to recover statutory penalties under Art. 5073, V.C.S., a special venue statute, the plea of privilege was filed by the defendant to be sued in the county of his residence and the controverting affidavit thereto was timely filed by plaintiff. The Trial Court overruled plaintiff's general and special demurrers to the plea of privilege and overruled the plea of privilege. The Court of Civil Appeals found that since this was a suit for recovery of usurious penalties, the statute which fixed the venue for such actions was not controlled by general rules depending upon proof of facts but was a question of law requiring no proof which could be determined by the allegations of the petition, cited the Yates case, and held that the Trial Court should have sustained the general demurrer to the plea of privilege.
The case reached the Supreme Court of Texas on Petition for Writ of Mandamus, Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867, 868, and the Court after stating that it did not approve the holding of the Court of Civil Appeals upon which it based its affirmance of the Trial Court's judgment, held as follows:
"It is our opinion that the latter part of article 5073, Revised Civil Statutes of 1925, is a special venue statute pertaining to suits for penalties for the collection of usurious interest. It permits the plaintiff to file such suit in the county of defendant's residence, or in the county where such usurious interest shall have been received or collected, of where the contract has been entered into, or where the party who paid the usurious interest resided when the contract was made. A law of this character authorizing a particular action and prescribing its venue is expressly made a part of the venue statutes by the terms of exception No. 30 of article 1995. The plea of privilege in the form prescribed by article 2007, was prima facie proof of the defendant's right to a change of venue, and after its filing the burden was on the plaintiff both to allege and prove as venue facts * * *."
After the Supreme Court had rendered the foregoing opinion, the same case was again submitted to the same Court of Civil Appeals, Universal Credit Co. v. Boling, Tex.Civ.App., 108 S.W.2d 836, and in its opinion the Court stated as follows:
"In the original opinion by us in this case, we held that, because there was a suit to recover the statutory penalty for usurious interest paid, the venue in the suit was placed by law under article 5073, Rev.Civ.Statutes; that under plaintiff's pleadings the venue was fixed in Young county, Tex.; and we further held that the usual and customary plea of privilege by defendant was not available to it but was subject to a general demurrer. In these holdings we attempted to follow the ruling announced in Yates et al. v. State (Tex.Civ.App.) 3 S.W.(2d) 114; Schoellkopf Co. v. Daves (Tex.Civ.App.) 71 S.W. (2d) 340; McCook v. Amarada Petroleum Corporation (Tex.Civ.App.) 73 S.W. (2d) 914."
*176 After quoting from the decision of the Supreme Court the Court stated further:
"From the foregoing quoted portion of the per curiam opinion by the Supreme Court, it will be seen that we were in error in our conclusions that the trial court should have sustained a general demurrer to defendant's plea of privilege. It is apparent that the controverting affidavit required by law and proof of venue facts should have been made upon the trial."
With respect to the holding in the Yates case the Court stated:
"In our original opinion we followed the rule announced in the three decisions by as many Courts of Civil Appeals, believing the rule a sound one. Our Supreme Court did not comment upon the conclusions reached by those courts, but we take it to mean that the principle there announced is overruled. Those cases did not reach the Supreme Court, and it was not material to a holding in this case that they should be referred to by that court."
In Fielder v. Parker, Tex.Civ.App., 119 S.W.2d 1089, no writ history, the Court held that where a plea of privilege has been properly filed without the filing of controverting plea, the sufficiency of the plea of privilege could not be attacked by demurrers or exceptions.
In view of the holding of the Supreme Court of Texas in Universal Credit Co. v. Dunklin, supra, if Art. 7436, V.C.S. is a special statute coming under the provisions of Sec. 30, Art. 1995, appellant's plea of privilege could only be attacked by appellee by timely filing his controverting plea asserting the right to maintain venue in the District Court of Williamson County, Texas, under Exception 30 and could not be attacked by appellee's motion to quash or any other similar pleading not filed in accordance with Rule 86.
However appellee's primary contention is that where a suit is properly filed in any District Court of the State of Texas under the provisions of Art. 7436, a plea of privilege will not lie since Art. 7436 is not a "special venue" statute coming within the provisions of Exception 30, Art. 1995, V.C. S. and therefore no controverting plea under oath need be filed since the question of venue is a question of law and not of fact, citing in support of its contention State v. Fairbanks-Morse & Co., Tex.Civ.App., 223 S.W.2d 339, no writ history, and Perfecto Gas Co. v. State, Tex.Civ.App., 228 S.W.2d 918, no writ history, which cases were relied upon by the Trial Judge for his ruling in sustaining the motion to quash and overruling the plea of privilege. Both of these cases were anti-trust cases.
In the Fairbanks-Morse case one of the defendants, after suit had been instituted in 1944, filed a plea of privilege to be sued in Dallas County, to which the State timely filed its controverting plea. The Trial Court did not act on the respective pleadings until 1946 when an Assistant Attorney General requested the Court to transfer the case to Dallas County which was done by order entered August 20, 1946. In Dallas County one of the defendants who had failed to file a plea of privilege in Runnels County filed its plea of privilege to be sued in Harris County, to which the State filed exceptions upon the ground that the Court was without authority to change venue or consider the plea of privilege because of the provisions of Art. 7436, which was overruled. The defendants also filed pleas to the jurisdiction of the Dallas County District Court, which, at a pre-trial hearing, were overruled, but the Trial Court sustained special exceptions to the petition and the State declined to amend.
On appeal the Court of Civil Appeals held that the Dallas County District Court was without power to enter any order in the case either on the merits or on the plea of privilege since the District Court in Runnels County was without authority to transfer *177 the case to Dallas County on the plea of privilege filed in the District Court of Runnels County, stating:
"* * * it is our opinion * * * that the Judge of the District Court of Runnels County was without power to change the venue on the plea of privilege of Gieb, and for the same reason the District Court of Dallas County never acquired jurisdiction or venue and was without power at any time to make any orders in the case except, to dismiss the same from the docket of the court and direct a return of the record to Runnels County where the suit has at all times pended."
The Court further stated by way of obiter dictum:
"What has been said disposes likewise with the action had on the plea of privilege. A plea of privilege does not lie in a case such as the instant case arising under the anti-trust statutes and the action of the trial court in overruling the plea would have been proper had it had the power to act, but since it had no such power the action taken is wholly ineffective and there is nothing before this court so far as the merits of the plea of privilege are concerned and the case brought here on the plea of privilege is accordingly dismissed."
In the Perfecto Gas Company case the defendant filed its plea of privilege, to which a controverting plea was timely filed, and on hearing the Trial Court overruled the plea of privilege. The controverting affidavit adopted the allegations of the State's petition which affirmatively showed that venue was maintainable in Travis County under the provisions of Art. 7436. On appeal this Court held that since the nature and character of a suit are to be determined from the allegations of the petition, Art. 7436 controlled the venue of the case, citing State v. Fairbanks-Morse & Co., supra.
The question before this Court for decision is whether Art. 7436, V.C.S. is a law authorizing or regulating a particular character of action within the meaning of Sec. 30, Art. 1995, V.C.S. so as to permit a plea of privilege to be filed by a non-resident defendant and the proceedings thereon conducted in accordance with the applicable rules of civil procedure or is it a law where venue is controlled by the statute itself and not by the provisions of Art. 1995 and the exceptions therein provided, such as Art. 5420, V.C.S. (State Public Lands), Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495, 498, or Art. 8307a, V.C.S. (Workmen's Compensation Act), Traders & General Ins. Co. v. Curby, Tex. Civ.App., 103 S.W.2d 398, no writ history; Texas Employers' Ins. Ass'n v. Ribble, Tex. Civ.App., 260 S.W.2d 719, no writ history.
It appears from the legislative history of Art. 7436 that prior to 1909 venue in antitrust cases was provided as follows: "* * * in any county where the offense is committed or where either of the offenders reside, or in Travis County * * *." (Ch. 94, Sec. 11, Acts 28th Leg., R.S.1903.) But in 1909 the Act was amended to provide for venue in the District Court of any county in Texas and providing that after suit had been filed in any county and jurisdiction thereof acquired, it shall not be transferred to any other county except by change of venue allowed by the Court.
Since the amendment to Art. 7436 specifically provided that the only method by which an anti-trust suit could be transferred from the county in which it had been instituted was by order of the Trial Court transferring the case on its own volition or upon a motion for change of venue under Rule 257, T.R.C.P., it is our opinion and we hold that where a suit is filed by the State of Texas under the provisions of the anti-trust laws (Arts. 7426-7447, V.C.S.) in a District Court in any county of the State of Texas, venue is controlled by the provisions of Art. 7436 itself and not by the provisions of Art. 1995 and the exceptions therein provided, and a plea of privilege will not lie.
*178 It is apparent from the allegations in the State's petition filed in the District Court of Williamson County that the action is under the anti-trust statutes (Arts. 7426-7447, V.C.S.), and since the Trial Court takes judicial knowledge of the allegations of the current pleadings filed in the cause, Eggenberger v. Brandenberger, 74 Tex. 274, 11 S.W. 1099; Deal v. Grand Finance Co., Inc., Tex.Civ.App., 228 S.W.2d 984, mand. overruled; Humphreys v. Young, Tex.Civ.App., 293 S.W. 655, 657, no writ history, it was the duty of the Trial Court to overrule the plea of privilege filed by appellant.
The judgment of the Trial Court overruling the plea of privilege is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4215811/ | Order filed, October 25, 2017.
In The
Fourteenth Court of Appeals
____________
NO. 14-17-00821-CR
____________
MARIA CORONA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 66522
ORDER
The reporter’s record in this case was due April 11, 2017. See Tex. R. App.
P. 35.1. The court has not received a request to extend time for filing the record.
The record has not been filed with the court. Because the reporter’s record has not
been filed timely, we issue the following order.
We order Robin Rios, the official court reporter, to file the record in this
appeal within 30 days of the date of this order.
PER CURIAM | 01-03-2023 | 10-30-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1626418/ | 25 So. 3d 423 (2009)
OFF CAMPUS COLLEGE BOOKSTORE, INC.
v.
UNIVERSITY OF ALABAMA IN HUNTSVILLE and David Williams, as president of the University of Alabama in Huntsville.
1071426.
Supreme Court of Alabama.
May 29, 2009.
*424 Michael L. Fees and Stacy L. Moon of Fees & Burgess, P.C., Huntsville, for appellant.
Robert W. Rieder, Jr., and John O. Cates, Office of Counsel, University of Alabama System, Huntsville, for appellees.
PER CURIAM.
Off Campus College Bookstore, Inc. ("Off Campus"), appeals from a judgment of the Madison Circuit Court denying its information request to the University of Alabama in Huntsville ("UAH") made pursuant to the Alabama Open Records Act, § 36-12-40, Ala.Code 1975. We dismiss the appeal based on the lack of subject-matter jurisdiction.
I. Facts and Procedural History
The nature of our decision requires only a cursory rendition of the facts. Off Campus is a bookstore in the business of selling books, school supplies, and other products, primarily to postsecondary students at UAH, as well as to students at junior colleges and other postsecondary institutions in the Tennessee Valley. In July 2006 and again in May 2007, Off Campus requested from UAH the names and addresses of individuals (and their parents) who had been accepted to UAH and who planned to attend, or had attended, orientation classes preceding their first year at UAH.[1] Off Campus believed it was entitled to the information under the Open Records Act. Off Campus stated that it intended to use this information to advertise Off Campus's services of providing required and recommended course materials to incoming freshmen at a reduced rate.[2] UAH declined to provide the information on the ground that it believed the information was protected by the federal Family Education *425 Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g.
On July 9, 2007, Off Campus filed a declaratory-judgment action against UAH, asking the Madison Circuit Court to declare whether Off Campus had a right to obtain, and UAH had a responsibility to provide, the requested information pursuant to the Alabama Open Records Act. On August 9, 2007, UAH answered the complaint, contending that its absolute immunity, as conferred by Art. I, § 14, Ala. Const. 1901, deprived the circuit court of subject-matter jurisdiction to hear the claims. It also contended that FERPA protected the requested information from disclosure and that the requested information was not within the ambit of the Open Records Act.
On March 20, 2008, Off Campus filed a motion for a summary judgment, along with a joint stipulation of facts from both parties in which they averred that "there are no issues of material fact and this matter is ripe for final judgment as a matter of law." UAH filed a motion for a summary judgment on April 30, 2008. On May 16, 2008, Off Campus filed an amended complaint containing the same allegations as its original complaint but adding David Williams, in his official capacity as the president of UAH, as a defendant. Williams answered the complaint on June 2, 2008, reiterating the defenses stated by UAH and averring that he joined in UAH's motion for a summary judgment.
On June 6, 2008, the trial court held a hearing on the opposing motions for a summary judgment. At the outset of the hearing, the trial court and the parties discussed the jurisdictional issue created by the fact that Off Campus originally filed its complaint solely against UAH, a state entity. Both the trial court and the parties assumed that because there was no statute-of-limitations bar to the addition of Williams as a defendant, the trial court acquired jurisdiction of the action on May 16, 2008, when the amended complaint was filed. The parties proceeded to argue the merits of the complaint.
On June 8, 2008, the trial court entered a final order denying the summary-judgment motion filed by Off Campus and granting the summary-judgment motion filed by UAH and Williams on the basis that the information sought by Off Campus was protected under FERPA and was not subject to disclosure under the Open Records Act. Off Campus appeals from this judgment.
II. Discussion Sovereign Immunity
Section 14, Ala. Const. 1901, provides: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." "The wall of immunity erected by § 14 is nearly impregnable. This immunity may not be waived." Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala.2002) (citations omitted).
"This Court has long held that `"`the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution.'"' Larkins v. Department of Mental Health & Mental Retardation, 806 So. 2d 358, 364 (Ala.2001) (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So. 2d 432, 435 (Ala.2001), quoting in turn Aland v. Graham, 287 Ala. 226, 229, 250 So. 2d 677, 678 (1971)). `[A]n action contrary to the State's immunity is an action over which the courts of this State lack subject-matter jurisdiction.' Larkins, 806 So.2d at 363."
Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala.2007).
This Court has also noted on several occasions that there are exceptions to the State's sovereign immunity. One such *426 exception is when a party "`seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation.'" 978 So.2d at 21 (quoting Latham v. Department of Corr., 927 So. 2d 815, 821 (Ala.2005)). In Alabama Department of Transportation v. Harbert International, Inc., 990 So. 2d 831, 841 (Ala. 2008), this Court clarified, however, that "[t]he purpose of the so-called `exception' to § 14 allowing declaratory-judgment actions is to give direction to State officers. Consistent with the other `exceptions' to § 14 immunity, we hold that only State officers named in their official capacity and not State agencies may be defendants in such proceedings."
It is undisputed that UAH is a State entity. Off Campus's original complaint named UAH as the sole defendant. Under Harbert and pursuant to § 14, UAH was not a proper defendant for Off Campus's declaratory-judgment action because it is absolutely immune from suit. Accordingly, the trial court lacked jurisdiction to entertain the complaint against UAH.
As noted above, Off Campus later purported to amend its complaint, without objection from UAH, adding UAH president David Williams as a defendant. Under our recent precedents, however, this amendment of the original complaint did not cure the jurisdictional defect that existed at the time the original complaint was filed. See Alabama Dep't of Corr. v. Montgomery County Comm'n, 11 So. 3d 189, 193 (Ala.2008) (holding that "[b]ecause the original complaint named only a party that has absolute State immunity, it failed to trigger the subject-matter jurisdiction of the circuit court. Consequently, it was a nullity. The purported amendment of a nullity is also a nullity.").
Consistent with Alabama Department of Corrections, we hold that Off Campus's purported amendment to its complaint was a nullity, as was the trial court's order purporting to grant UAH and Williams's motion for a summary judgment and to deny Off Campus's. Thus, Off Campus's appeal of the trial court's order is void and is due to be dismissed. See Gallagher Bassett Servs., Inc. v. Phillips, 991 So. 2d 697, 701 (Ala.2008) (stating that "a void judgment will not support an appeal").
III. Conclusion
Based on the foregoing, this appeal is dismissed as being from a void judgment.
APPEAL DISMISSED.
LYONS, WOODALL, BOLIN, PARKER, and SHAW, JJ., concur.
COBB, C.J., and MURDOCK, J., dissent.
MURDOCK, Justice (dissenting).
For the reasons explained in my special writings in Cadle Co. v. Shabani, 4 So. 3d 460 (Ala.2008) (Murdock, J., dissenting), and Ex parte Alabama Department of Transportation, 6 So. 3d 1126, 1128 (Ala. 2008) (Murdock, J., dissenting), I respectfully dissent. I note that the instincts of counsel for both the plaintiff and the defendant in this case, as well as those of the trial court, appear to have been in line with my view, as expressed in these cases, that the original complaint in a case such as this remains pending until it is dismissed (although the trial court lacks jurisdiction to actually adjudicate any claims asserted therein), and, if the plaintiff amends the complaint before the statute of limitations or some other bar prevents it from doing so and the amendment alleges one or more claims that the trial court otherwise could have jurisdiction to adjudicate, *427 then the trial court acquires jurisdiction of those claims at that time.[3]
COBB, C.J., concurs.
NOTES
[1] UAH routinely collects the information requested by Off Campus as part of its student-application process.
[2] UAH has its own bookstore that sells course materials to its students.
[3] counsel]: Well, I would agree with [Off Campus's counsel]. And that is the reason that we went ahead and filed an Answer, because there is no statute of limitations problem here. They could re-file, naming David Williams and could go forward.
"I do want to point out to the Court and, [Off Campus's counsel], you probably haven't had a chance to read the case. It's pretty darn explicit that the only power the Court has is to dismiss the thing if you don't have subject matter jurisdiction.
"[Off Campus's counsel]: And by bringing in Dr. Williams, we have subject matter jurisdiction.
"Dr. Williams has consented to moving forward with this matter. He actually, if I am not mistaken, has joined in the Motion for Summary Judgment filed by UAH, that puts him in exactly the same position as if we dismissed, re-filed tomorrow and move forward that way. So I really don't think it has to relate back.
"But I do believe, by adding Dr. Williams, we have brought this matter properly before the Court and this Court does have subject matter jurisdiction.
"The Court: .... And I appreciate the cooperation between the parties in an effort to resolve the issues. It's one that I suspect several state institutions are faced with. We consider the Court as having subject matter jurisdiction on this case by the [addition] of Dr. David Williams, as President of the University of Alabama, Huntsville." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626465/ | STATE OF LOUISIANA
v.
JOSHUA GRIFFINS
No. 09-372.
Court of Appeals of Louisiana, Third Circuit.
November 4, 2009.
Not Designated for Publication
SHERRY WATTERS, Louisiana Appellate Project Counsel for Defendant Appellant: Joshua Griffins
Hon. ASA A. SKINNER District Attorney 30th JDC TERRY WAYNE LAMBRIGHT Assistant District Attorney Counsel for Plaintiff Appellee: State of Louisiana
Court composed of THIBODEAUX, Chief Judge, COOKS, and SAUNDERS, Judges.
SAUNDERS, Judge.
Defendant, Joshua Griffins, was charged by bill of information filed on June 16, 2008, with simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2, and theft over $500, in violation of La.R.S. 14:67. Defendant entered a plea of not guilty on June 17, 2008. On November 5, 2008, Defendant entered a plea of guilty to simple burglary, in violation of La.R.S. 14:62. The theft charge was dismissed.[1]
On January 27, 2009, Defendant was sentenced to five years at hard labor and charged a fine of $1,000 plus costs of court. The court suspended three and one-half years of the sentence and ordered that Defendant be placed on supervised probation for a period of five years upon his release from incarceration. The following special conditions of probation were ordered:
Comply with Code of Criminal Procedure Article 895(A); pay the fine, costs and restitution to the victim in the amount of $800.00 all in accordance with a Court approved pay plan at the rate of $100.00 per month; pay to the Indigent Defender Board the sum of $250.00; pay $50.00 a month supervision fee to the Department of Public Safety and Corrections and an additional $5.00 per month payable to the Sex Offender Registry Technology Fund or perform eight hours a month public service in lieu of paying those fees; attend school or maintain gainful employment at all times during the probationary period.
Defendant filed a Motion to Reconsider Sentence on January 30, 2009, which was denied on February 3, 2009.
A motion for appeal was filed on February 10, 2009, and subsequently granted. Defendant is now before this court asserting one assignment or error. Therein, he contends his sentence is excessive. We find that this assignment of error lacks merit.
FACTS:
On December 16, 2007, Defendant, along with two other co-defendants, entered the residence of William Spillers, damaged the property, and stole guns and various other personal items from the home.
ASSIGNMENT OF ERROR:
In his only assignment of error, Defendant contends his sentence of five years constitutes cruel and unusual punishment because it requires serving one and one-half years of incarceration, plus the maximum term of supervised probation upon release, plus monetary penalties that add up to more than $5,380. Defendant notes the monetary penalties are excessive, as he is indigent. Defendant also asserts the sentence is illegal, in that it requires incarceration if one of the fees is not paid, and it prohibits early release for good time, even though he is not a habitual offender.
Defendant asserts that his sentence is excessive in the following respects:
1) the underlying sentence of five years is too long for a first offender, in comparison to other offenders in similar cases and to his codefendants in this case;
2) suspending 3.5 years and requiring 1.5 years of incarceration was excessive and close to the maximum, in that La. C.Cr.P. Art. 895 allows only 2 years of incarceration for a suspended sentence;
3) five years of active, supervised probation is the maximum term of probation;
4) Joshua Griffin had "gainful employment" at the time of sentencing and had already graduated from high school; these two conditions show that his sentence was not individualized; incarcerating him negated his employment;
5) The $1,000.00 fine was half of the maximum; the court added an undetermined amount of "court costs", plus $800.00 in restitution and $250.00 to the Indigent Defender Board; Joshua Griffin is indigent and represented by appointed counsel; there was no proof of the amount of damage to the Spillers; the total monetary penalty exceeds the $2,000.00 maximum in the statute.
6) a monthly fee of $50 for probation supervision, and another monthly fee of $5.00 to the sex offender registry technology fund totals another $3,330.00 over five years of probation; the total monetary penalties add up to more than $5,380.00 for this indigent defendant,
7) the fee to the sex offender registry technology fund has nothing to do with Joshua Griffin's offense and it is unconstitutional to require him to pay a penalty for an unrelated criminal expense; further to impose incarceration if the indigent defender defaults on payment is contrary to law;
8) Though he is a first offender, the minute entry also says that he is not eligible for good time, early release (R. 3, 81-85).
In his Motion to Reconsider Sentence, Defendant asserted that his sentence was excessive "under the circumstances, specifically, that defendant is classified as a first offender, and is eligible for probation." Defendant did not raise claims three through seven at the sentencing hearing or in his motion to reconsider sentence. Accordingly, these arguments cannot be raised for the first time on appeal. See La.Code Crim.P. art. 881.1(E); Uniform RulesCourts of Appeal, Rule 1-3; State v. Hebert, 08-542 (La.App. 3 Cir. 11/5/08), 996 So. 2d 688. This court does note that claim number eight was not asserted in the trial court; however, we will address this claim because it could be an error patent. We will also review claims one and two, which relate to the excessiveness of sentence.
To constitute an excessive sentence, the penalty must be grossly disproportionate to the severity of the crime or be nothing more than needless imposition of pain and suffering. State v. Howard, 414 So. 2d 1210 (La. 1982). Additionally, the trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. Id. Thus, the question before this court is not whether imposition of another sentence would be more appropriate, but whether the trial court abused its discretion. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
State v. Lee, 08-456, pp. 6-7 (La.App. 3 Cir. 11/5/08), 996 So. 2d 1217, 1221-22.
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La. 7/6/00); 766 So. 2d 501.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So. 2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So. 2d 1061.
Defendant pled guilty to simple burglary, which is punishable by a fine of not more than two thousand dollars, imprisonment with or without hard labor for not more than twelve years, or both. La.R.S. 14:62. Defendant was sentenced to serve five years at hard labor, three and one-half of which were suspended. He was also ordered to pay a fine of $1,000 and was placed on five years supervised probation, with special conditions, upon his release from incarceration.
At the sentencing hearing, the trial court noted that Defendant was twenty years old, was single, had one child, was in good health, was a high school graduate, was employed, and had no history of drug and alcohol abuse. However, the trial court also noted that Defendant caused damage to the victim's home, the victim's wife was afraid to stay home alone, and that, as part of a plea bargain, a felony theft charge was dismissed.
In State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So. 2d 1076, Morris was convicted of simple burglary and sentenced to twelve years at hard labor. The fifth circuit concluded that despite Morris' lack of a criminal history, the sentence was warranted based on the three thousand dollars in damages to an ATM and kiosk.
This court does acknowledge that the amount of damage in the case at bar was far less significant than that in Morris. However, the charge of simple burglary in the case at bar was reduced from a charge of simple burglary of an inhabited dwelling, which is punishable by imprisonment at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years. Furthermore, a felony theft charge, which is punishable by imprisonment, with or without hard labor, for not more than ten years, or a fine not more than three thousand dollars, or both, was dismissed as part of the plea bargain. La.R.S. 14:67.
Defendant also argues that suspending three and one-half years of his sentence and requiring that he serve one and one-half years of incarceration was excessive and close to the maximum, in that La.Code Crim.P. art. 895 allows only two years of incarceration for a suspended sentence. Article 895 (B)(1) provides that "[i]n felony cases, an additional condition of the probation may be that the defendant shall serve a term of imprisonment without hard labor for a period not to exceed two years." It is clear that Defendant's argument is misguided, as the trial court did not order incarceration as a condition of his probation; thus, article 895(B)(1) is inapplicable to the case at bar.
Defendant further asserts that though he is a first offender, the minute entry says that he is not eligible for good time, early release. At the sentencing hearing, the trial court stated the following: "Pursuant to Code of Criminal Procedure Article 894.1 you are hereby advised that your sentence is not subject to diminution for good behavior pursuant to Article 15:571.3."
In State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So. 2d 698, 699, our supreme court held, in pertinent part:
[A] trial judge lacks authority under La.R.S. 15:57[1].3 (C) to deny a defendant eligibility for good time credits against his sentence, because that statute is "directed to the Department of Corrections exclusively." State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So. 2d 661. . . . When the sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge's discretion should be exercised under La.C.Cr.P. 890.1(B).
In this case, the trial court merely advised Defendant pursuant to La.Code Crim.P. art. 894.1 that he was not eligible for diminution of sentence. Whether the advisement was correct has no effect since the Article states that the authority lies with the Department of Corrections. Id.
For the reasons asserted herein, we find that this assignment of error lacks merit.
CONCLUSION:
Defendant's sentence is affirmed.
AFFIRMED.
NOTES
[1] The bill of information was amended at sentencing to reflect the charge of simple burglary, deleting the language regarding an inhabited dwelling. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626470/ | 464 So. 2d 1277 (1985)
Gerald E. DOYLE and Helena C. Doyle, Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
No. 84-1512.
District Court of Appeal of Florida, Third District.
March 5, 1985.
*1278 Gerald E. Rosser, Miami, for appellants.
Walton, Lantaff, Schroeder & Carson and Kathleen A. Monahan, Miami, for appellee.
Before BARKDULL, NESBITT and FERGUSON, JJ.
FERGUSON, Judge.
This appeal is brought by plaintiff's from an adverse summary judgment on a complaint which names only the insurer as a defendant.
The coverage question presented is whether injury suffered at the hands of a robber as plaintiff exited his automobile was "caused by an accident arising out of the ownership ... or use of a motor vehicle and sustained by ... the named insured ... while occupying a motor vehicle ...," as the policy requires.
The undisputed facts as taken from exhibits and depositions are as follows. On August 21, 1981, at approximately 10:45 p.m., plaintiff, Gerald Doyle, accompanied by his wife, Helena Doyle, drove his automobile into his driveway and began exiting the vehicle. An unknown assailant carrying a gun approached the plaintiff and requested money. When Doyle reached for his wallet, the assailant shot him several times.
Barbara Mayor, a claims adjuster for defendant, State Farm Mutual Automobile Insurance Company, was first contacted by counsel for plaintiffs in 1981 concerning a claim for personal injury protection (PIP) benefits. At that time, Mayor verbally denied PIP coverage for the shooting incident. At a subsequent time, she was again contacted by plaintiffs' counsel and, based on their telephone conversation, she agreed that the shooting of Gerald Doyle was covered under his wife's policy. She requested plaintiffs to forward their written personal injury protection application and medical bills so that the claim could be processed and payment made. Plaintiffs did not forward an application to State Farm until 1983. Prior to any payment being made and prior to receipt of the application, Mayor discussed the claim with her supervisor, William Reed, who informed her that the shooting incident was not covered by the PIP provisions of the policy. After the plaintiffs' application was received, Reed and Mayor again discussed possible coverage and the decision to deny the claim was affirmed. Plaintiffs' counsel was then informed accordingly.
Plaintiffs bring this action claiming that defendant failed to uphold the terms of the oral "settlement agreement" by refusing to pay PIP benefits to the plaintiffs.
Appellants rely on Government Employees Insurance Co. v. Novak, 453 So. 2d 1116 (Fla. 1984) and a more recent opinion of this court, Pena v. Allstate Insurance *1279 Co., 463 So. 2d 1256 (Fla. 3d DCA 1985). Novak states the controlling law. In that case, Beverly Novak was in her car and was about to drive away from her residence. She was approached by a mentally deranged stranger named Endicott who asked for a ride. When she refused, Endicott shot her in the face, pulled her from the car, got in, and drove away. The supreme court agreed with the district court that the assailant's motivation in "[o]btaining a ride in or possession of the motor vehicle" established the requisite substantial connection between plaintiff's use of the automobile and her fatal injuries. 453 So.2d at 1119.
In Pena, the plaintiff was a taxicab driver. A passenger entered the cab and asked to be driven to an area where he intended to rob the plaintiff. The passenger then pulled out a gun and demanded plaintiff's money. Plaintiff grabbed for the gun and, as a result, sustained injuries to his left hand. The injuries were caused either by the gun barrel or a bullet coming from the gun. The assailant then ordered the plaintiff out of the cab and drove the cab away from the scene. In a 2-1 opinion, to which Chief Judge Schwartz dissented with typical spirit, the court reversed in part a summary judgment entered for the insurer on a holding that:
the fact that the motor vehicle was a taxi cab was clearly the motivating factor which led the robber to choose the plaintiff as his victim. The fact that the plaintiff was operating a taxi meant he was more likely to have cash (from cab fares) than the average driver. More importantly, the vehicle itself became an instrumentality in the robbery when it was used not only to take the plaintiff and the robber to the scene of the crime, but also as a means of escape . .. after the commission of the crime.
463 So.2d at 1258. Pena, if correct, probably extends the Novak rationale to its outer limits. Nonetheless, we find it distinguishable. Unlike the facts in Novak or Pena, there is no evidence in this case that the assailant's motive was to obtain possession or use of the automobile, or that an assault on the driver was naturally probable owing to the fact that in the ordinary course of business, cash is carried in the particular kind of vehicle. The facts of this case are similar to those of a line of other cases finding no coverage where the automobile was merely the situs of an injury without a causal connection to the injury.[1]See, e.g., Allstate Insurance Co. v. Famigletti, 459 So. 2d 1149 (Fla. 4th DCA 1984); Florida Farm Bureau Insurance Co. v. Shaffer, 391 So. 2d 216 (Fla. 4th DCA 1980), rev. denied, 402 So. 2d 613 (Fla. 1981); Stonewall Insurance Co. v. Wolfe, 372 So. 2d 1147 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 762 (Fla. 1980).
Appellant's second argument, although framed as a breach of a settlement agreement, is no more than an attempt to create insurance coverage by estoppel. Under Florida law, coverage by estoppel is not permitted. Six L's Packing Co. v. Florida Farm Bureau Mutual Insurance Co., 276 So. 2d 37 (Fla. 1973); Starlite Services, Inc. v. Prudential Insurance Co. of America, 418 So. 2d 305 (Fla. 5th DCA 1982); Radoff v. North American Co. for Life and Health Insurance, 358 So. 2d 1138 (Fla. 3d DCA 1978).
Affirmed.
NOTES
[1] In Novak, 453 So.2d at 1119, the supreme court stated that it did not disapprove of Reynolds v. Allstate Insurance Co., 400 So. 2d 496 (Fla. 5th DCA 1981) which requires, under an automobile insurance claim, that there be a causal connection or relation between the injury-causing incident and the automobile. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626477/ | 464 So. 2d 510 (1985)
PIGGLY WIGGLY, d/b/a Dixieland Foods, et al.
v.
Elsie M. HOUSTON.
No. 55423.
Supreme Court of Mississippi.
February 20, 1985.
*511 Eugene M. Harlow, Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, for appellant.
J. Ronald Parrish, E.K. Collins, Laurel, for appellee.
Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
DAN M. LEE, Justice, for the Court:
This is an appeal from the Circuit Court of Jones County wherein the circuit judge affirmed an order of the full Workmen's Compensation Commission which found as a fact that Mrs. Elsie M. Houston suffered 100% industrial disability of her right leg. The order of the full Commission had reversed a finding by the Administrative Law Judge that the claimant only had a 40% disability of her right leg. At issue on this appeal is whether the circuit court was correct in affirming the findings of the full Workmen's Compensation Commission. We conclude that the circuit court was correct.
Mrs. Houston testified that on August 15, 1980, she was employed in the Piggly Wiggly delicatessen. She had been working there since July, 1978. As part of Mrs. Houston's job, she was required to go to the back of the store and load grocery carts full of boxes or cans of food and bring them to the front of the store where the delicatessen was located. These boxes weighed between five to thirty pounds. Mrs. Houston stated that her job required her to stand all day. She used her leg to steady herself when lifting heavy boxes. Her job required that she squat, stoop, and get down on her knees.
On the day of her injury, Mrs. Houston was going to the back of the store to pick up some delicatessen supplies when she slipped on a lettuce leaf in the produce section. Mrs. Houston was taken to the emergency room at Community Hospital where she saw Dr. Turnbull. She was diagnosed as having a fractured patella (kneecap). Surgery was performed later that day.
Mrs. Houston was required to stay in the hospital for a week. After being released, she saw Dr. Attix for the swelling of her knee, leg and ankle. He advised that she should have her kneecap removed. He then referred her back to Dr. Turnbull. Mrs. Houston stated that since that time she felt her knee had changed for the worse. She complained that her ankle is always swollen and that her leg and knee swell severely.
Mrs. Houston also complained of pain in her hip when walking. She stated that she had never had this type of pain prior to her injury. She also denied that she had experienced any problem with her ankles, knees or legs prior to the injury. Mrs. Houston complained that her injuries have left her unable to walk, bend or stoop.
Mrs. Houston never had any training for a "sit down job." For the last twenty years of Mrs. Houston's employment history, she has had jobs involving lifting. After her injury she looked for work at three different department stores and a restaurant but was unable to find a job. She stated that she realized that had she gotten one of those jobs she would have been required to stand and lift but that her need to work overwhelmed the pain. She testified that she did not feel up to a job but that she would have given it a try had she been given the opportunity. This was in spite of her assertion that since the injury, if she tried to lift something she was "just about to hit the floor."
The parties stipulated that Mrs. Houston's physician, Dr. Turnbull, would testify that she suffered a 20% permanent partial disability of her right leg as a result of an articular fracture of her patella. The parties further stipulated that on September 22, 1981, Mrs. Houston reached maximum medical recovery.
Based on her testimony and the stipulation of the parties, the administrative law judge found that Mrs. Houston had suffered a total of 40% disability. By a vote of two to one, the Workmen's Compensation Commission reversed the administrative law judge and found that Mrs. Houston *512 was suffering a 100% industrial disability of her right leg. The circuit court affirmed the findings of the Workmen's Compensation Commission.
The standard of review when this Court considers findings of fact of the Workmen's Compensation Commission is that of substantial evidence. In other words, if there is substantial evidence to support the findings of the Workmen's Compensation Commission this Court will not disturb those findings on appeal. Johnson v. Ferguson, 435 So. 2d 1191 (Miss. 1983); Goasa & Son v. Goasa, 208 So. 2d 575 (Miss. 1968).
The crux of the dispute in the instant case lies in the difference between the finding of the administrative law judge and that of the Workmen's Compensation Commission. Piggly Wiggly argues that because the parties stipulated that Dr. Turnbull's testimony would be that Mrs. Houston was suffering only a 20% physical disability, the Commission's finding that she was 100% disabled was not supported by substantial evidence. This argument fails to consider the opinions of this Court which have held that the loss of wage earning capacity is to be determined from the evidence as a whole and is not limited strictly to the percentage of physical or medical disability. See Universal Manufacturing Co. v. Barlow, 260 So. 2d 827 (Miss. 1972); Futorian Stratford Furniture Co. v. Davis, 185 So. 2d 665 (Miss. 1966); M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So. 2d 300 (1952). In those cases this Court has continued to recognize a distinction between functional disability and industrial disability. This distinction is at the core of the issues involved in this case. Noted Workmen's Compensation authority Vardaman Dunn had this to say about the distinction between functional and industrial disability:
The question in these cases is the degree of loss of use of the member for wage earning purposes, and this issue is for determination from the evidence as a whole, including medical estimates related either to the functional or industrial loss and the testimony of the claimant and other lay witnesses as to the effect of the injury upon the employee's ability to perform the duties required of him in his usual employment. In this connection, a partial loss of functional use may result in total disability, and to reach this result it is not necessary that the employee be wholly incapacitated to perform any duty incident to his usual employment or business; but if he is prevented by his injury from doing the substantial acts required of him in his usual occupation, or if his resulting condition is such that common care and prudence require that he cease work, he is totally disabled within the meaning of the statute.
* * * * * *
Indeed, more estimates of the medical or functional loss may have little value when compared with lay testimony by the claimant that he suffers pain when attempting use of the member and that he has tried to work and is unable to perform the usual duties of his customary employment, and this is especially true when such testimony is corroborated by persons who have observed the claimant's attempt to work or who have refused to employ the claimant because of his apparent affliction. (footnotes omitted)
Dunn, Mississippi Workmen's Compensation 3rd Ed. § 86, p. 102, 103.
The M.T. Reed Construction Co. v. Martin case is striking in its factual similarity to the instant case. There one physician testified that Martin had a 20% disability while another refused to estimate the percentage of disability because, in his opinion, Martin's pain would remain throughout his life. The attorney-referee found that Martin suffered from a permanent and total loss of use of his right leg. The full commission amended the award by reducing permanent disability to 20%. The circuit court then reversed the Commission and reinstated the award of the attorney referee. On appeal to this Court the circuit court's ruling was affirmed. The Court had this to say about the distinction between functional and industrial disability:
*513 When the whole evidence is considered, it leads inescapably to the conclusion that Martin, by reason of his injury, is prevented from doing the substantial acts required of him as a carpenter. Moreover, due to his advanced age and physical condition, it appears most unlikely that he will be able to pursue any other gainful employment.
The opinion in the Meeks [Locomotive Engineers Mut. L. & A. Ins. Co. v. Meeks, 157 Miss. 97, 127 So. 699 (1930)] case, supra, cited Metropolitan Casualty Ins. Company v. Cato, 113 Miss. 283, 74 So. 114, and observed that the Court there held that one may be "totally disabled, notwithstanding the fact that he occasionally is able to perform some single act connected with his business." It also cited Equitable Life Assurance Society v. Serio, 155 Miss. 515, 124 So. 485, and observed that it was there held that "recovery under insurance policy by reason of total and permanent disability does not require a condition of complete helplessness, nor such an entire physical or mental inability in respect to pursuit of an occupation or employment that the insured can do absolutely nothing; ...".
In the recent case of Lipnick v. New York Life Insurance Company, 211 Miss. 833, 52 So. 2d 916, on the question of what is necessary to constitute total and permanent disability, this Court cited Mutual Benefit Health & Accident Association v. Mathis, 169 Miss. 187, 142 So. 494, and quoted with approval therefrom as follows: "in order for one to be totally disabled within the meaning of a health or accident insurance policy, it is not necessary that he be wholly incapacitated to perform any duty incident to his usual employment or business, but, if the insured is prevented by his injury or illness from doing the substantial acts required of him in his business, or if his physical condition is such that, in order to effect a cure or prolongation of life, common care and prudence require that he cease all work, he is totally disabled within the meaning of such policies." (Emphasis supplied.)
215 Miss. at 477, 478, 61 So.2d at 302.
We are of the opinion that the circuit court was correct that there was substantial evidence to support the Commission's finding that Mrs. Houston suffered 100% industrial disability. She testified that she was unable to perform her job or to stand for very long. She continued to suffer swelling and pain and was unable to bend or stoop very well. Furthermore, Mrs. Houston was unable to lift boxes or cans of the size and weight required by her job. It was undisputed that Mrs. Houston has attempted to find other employment for which she was suited but that she was unable to do so. Based on her testimony, we conclude that she was willing to work but was physically unable to perform the substantial acts required of her in her usual employment.
Based on all of the foregoing, the decision of the circuit court affirming the decision of the full Workmen's Compensation Commission is hereby affirmed.
AFFIRMED.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626497/ | 464 So. 2d 350 (1985)
Rayville F. FULLER, et al., Plaintiffs-Appellees,
v.
Rayford J. WRIGHT, Sr., et al., Defendants-Appellants.
No. 16729-CA.
Court of Appeal of Louisiana, Second Circuit.
January 23, 1985.
Writ Denied March 22, 1985.
*351 Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendants-appellants.
Wright & Hennen by Patrick H. Wright, Jr., Monroe, for plaintiffs-appellees.
Before HALL, MARVIN and NORRIS, JJ.
MARVIN, Judge.
The issue in this appeal is whether the trial court was correct in granting an injunction under CC Art. 694 to recognize a servitude of passage which had not been established or fixed either by contract or by court order but which had been exercised over an existing roadway for years before injunction was sought.
Art. 694 reads:
"When in the case of partition, or a voluntary alienation of an estate or a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage."
The roadway traverses a peninsula of about 1,600 feet that is known as Cypress Bluffs and that is formed where Cypress Creek runs into the Ouachita River in sections 3 and 4, T15N, R3E. One witness testified as to the existence and use of a 10-foot dirt road down the peninsula since 1925. Some gravel was later placed on the road. In 1962 the property was owned in indivision and was partitioned into five tracts by predecessors in title to plaintiffs Fuller and Elliot and to defendants Wright and Braho, Inc. This facsimile of a plat reflects the existing ownership, the roadway, and the partition boundary (shown by dotted lines):
*352
In 1984 defendant Wright installed and locked a gate across the road at his easternmost boundary (Point A on facsimile) and defendant Braho, Inc. fenced the road at its westernmost boundary (Point B on facsimile). Plaintiffs then brought this action to enjoin the interference by defendants with plaintiffs' exercise of their contended legal servitude of passage over the road under CC Art. 694.
A CC Art. 694 servitude of passage must be distinguished from other servitudes of passage. Stuckey v. Collins, 464 So. 2d 346 (La.App.2d Cir.1985). Compare Ezernack v. Ezernack, 137 So. 626 (La.App. 2d Cir.1931); Baldwin Lumber Co. v. Todd, 124 La. 543, 50 So. 526 (La. 1909); Morgan v. Culpepper, 324 So. 2d 598 (La.App. 2d Cir.1975), writ denied, with Picard v. Shaubhut, 324 So. 2d 517 (La. App. 1st Cir.1975), writ not considered. The Art. 694 right of passage is a gratuitous right for which the dominant owner is not bound to indemnify the subservient owner. Art. 694 is explicit in requiring that the owner of land on which the right was previously exercised (before the partition or voluntary alienation) shall furnish the enclosed estate a gratuitous right of passage, even if it is not the shortest route and is not mentioned in the act of alienation or partition. The only requirement for enforcement of the right is that the right of passage must have been previously used or exercised. That requirement has been met in this record by the showing that the roadway existed and had been used by plaintiffs and others for a number of years.
Having shown that a definite roadway existed and had been used before and after the 1962 partition, these plaintiffs are and have been entitled to the exercise of their CC Art. 694 servitude rights. Under these circumstances it is not necessary to fix the location of the servitude before granting an injunction to protect against interference of plaintiffs' use of this roadway. Compare Estopinal v. Storck's Estate, 44 So. 2d 704 (Orl.App.1950); Marceaux v. Reese, 365 So. 2d 504 (La.App. 3d Cir.1978), where injunction was denied because there was no *353 previous exercise of the right over a fixed route. See also Young v. Manuel, 385 So. 2d 544 (La.App. 3d Cir.1980).
The trial court correctly overruled the peremptory exception of no cause of action and applied CC Art. 694.
At appellants' cost, the judgment is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626502/ | 464 So. 2d 538 (1985)
Marilyn WALTER, Petitioner,
v.
David L. WALTER, Respondent.
No. 64641.
Supreme Court of Florida.
February 14, 1985.
Michael R. Walsh, Orlando, for petitioner.
Jeff B. Clark, Orlando, for respondent.
OVERTON, Justice.
This is a petition to review a decision reported as Walter v. Walter, 442 So. 2d 257 (Fla. 5th DCA 1983), in which the Fifth District Court of Appeal reversed a trial court award of permanent alimony in a dissolution proceeding. In its decision, the district court restricted the discretionary authority of trial courts to use permanent alimony by directing that permanent alimony should be awarded only as "the last resort." Id. at 259. We find direct conflict with our decision in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we quash the district court's decision.
The essential legal issue to be resolved is whether the test for the award of permanent alimony formulated by the district court in the instant case is proper and consistent with the criteria established by this Court in Canakaris and its progeny. The district court held that "[p]ermanent *539 alimony, being a fixed and comparatively unadjustable form of alimony should be the last resort rather than the first." 442 So.2d at 259. It concluded that the trial judge must first consider awarding rehabilitative alimony for "an appropriate period" unless "there is no question about the permanency of the inability to self-support." Id. We find that the district court's holdings significantly modify the guidelines which we established in prior decisions for the award of permanent alimony. This Court clarified those guidelines in Canakaris, where we stated:
Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates.
... .
While permanent periodic alimony is most commonly used to provide support, in limited circumstances its use may be appropriate to balance such inequities as might result from the allocation of income-generating properties acquired during the marriage.
382 So.2d at 1201-02 (emphasis added).
By requiring trial courts to utilize permanent alimony only upon a showing of lack of capacity for self-support and only as a last resort, the district court largely eliminated the Canakaris criteria of "the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates" from the trial judge's consideration. Id. It also appears to have restricted the trial court's ability to use permanent alimony to "balance such inequities as might result from the allocation of income-generating properties acquired during the marriage." Id. at 1202. By its holding, the district court attempted to establish, as a new rule of law, the presumption that rehabilitative alimony generally must be awarded for an appropriate period before permanent periodic alimony may be made part of a final judgment. We reject this limitation on the discretionary authority of trial courts to utilize permanent alimony in dissolution proceedings. We do not dispute the general authority of the district courts of appeal to establish rules of law, but we must conclude that the strict rule of law set forth by the district court in the instant case is inappropriate because it eliminates from the trial judge's consideration factors that must be evaluated if a just result is to be ensured.
In reviewing the trial court's disposition of property and award of alimony and support, the appellate court's responsibility is to determine from the admitted facts, or the facts taken most favorably to the prevailing party, (1) whether the rules of law were applied correctly and (2) whether the trial court's discretionary authority was reasonably exercised under the test set forth in Canakaris. The correction of an erroneous application of law and the determination that the trial court abused its discretion are two separate and distinct appellate functions. An erroneous application of a rule of law is illustrated by a trial court order requiring payment of support for a child who has reached majority and is not dependent by reason of unusual circumstances. See, e.g., Grapin v. Grapin, 450 So. 2d 853 (Fla. 1984). An example of an appellate court's proper determination, upon known facts, that the trial court abused its discretion is found in the oft-cited decision of Brown v. Brown, 300 So. 2d 719 (Fla. 1st DCA 1974). The decision of Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983), illustrates the finding of a reasonable exercise of discretion.
This Court has repeatedly stated that appellate courts, in examining the discretionary acts of trial courts, must not reweigh the facts. In Conner v. Conner, *540 439 So. 2d 887 (Fla. 1983), when this Court stated that "[t]he determination that a party has been `short-changed' is an issue of fact and not one of law," we were simply reaffirming that view. Id. at 887 (citing Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)). That statement was not intended to either broaden or restrict the authority of the district courts of appeal to review the reasonableness of discretionary acts upon admitted facts or the facts taken most favorably to the prevailing party. That is how we interpret the use of the term "short-changed" in Brown. The Brown court, by its decision, did not broaden its reviewing authority or reevaluate the facts, but properly found, under known facts, that the trial court had not acted reasonably and had abused its discretion. 300 So.2d at 726. As expressed in Marcoux v. Marcoux, 464 So. 2d 542 (Fla. 1985), released simultaneously with this opinion, the critical determination is whether the trial court abused its discretion.
While we recognize the significant responsibility of the district courts to review the reasonableness of discretionary acts of trial courts in dissolution proceedings, we must reject the establishment of new rules of law that would unduly restrict the discretionary authority of trial judges to render equitable property dispositions or support and alimony awards. See Tronconi v. Tronconi, 466 So. 2d 203 (Fla. 1985). We reiterate that "[i]n considering the appropriate criteria for the award of the different types of alimony, it is important that appellate courts avoid establishing inflexible rules that make the achievement of equity between the parties difficult, if not impossible." Canakaris, 382 So.2d at 1200 (emphasis added). That statement reflects our recognition that the discretionary authority granted trial judges in dissolution matters is necessary because such cases are not susceptible to fixed pattersn. The unique characteristics of the instant case illustrate the reason flexibility is needed to assure equitable property dispositions and support awards.
The parties in the instant case were married in 1965. Three children were born of the marriage. In 1972, the petitioner, Marilyn Walter, instituted a dissolution proceeding against the respondent, David Walter, because he was involved in an affair with an employee of the restaurant where he worked as a supervisor. The record reflects that this conduct may have resulted in the termination of his employment. The parties acknowledged in an agreement, made part of the final judgment of dissolution, that because David was unemployed, he was unable to pay child support or alimony at that time. The trial court specifically recognized this fact in the final judgment and reserved jurisdiction to enter future orders pertaining to child support or alimony.
Three months after the dissolution, David moved back into the home he had conveyed to Marilyn as part of the divorce settlement. He lived there for approximately six months before moving to Brevard County and opening a restaurant. Marilyn testified that David then persuaded her to move to Brevard County with the hope of reconciliation. Marilyn sold the former marital home at a profit of $15,000. David asked Marilyn for a loan to open a second restaurant, in Cocoa. Marilyn agreed and loaned David $10,000 from the proceeds she received from the sale of the home. David executed a promissory note in the amount of $10,000 at 15 percent interest, agreeing to repay this amount in five years in monthly installments of $250, with the first payment being due on October 1, 1974. Marilyn also loaned David $2,000 for a down payment on a home in Cocoa, where she and the minor children now reside pursuant to the modification judgment. Marilyn testified that after she moved to Brevard County, David requested that she stay at home with the children rather than work. From the spring of 1974 until August, 1975, David paid Marilyn $200 per week. She then began to work for David at one of his restaurants. After she began working, she continued to receive the $200 per week, but in the form of paychecks drawn on the business account *541 rather than as support funds. She worked at the restaurant until May, 1976, when she resumed the role of full-time mother and housekeeper. From May, 1976, to June, 1977, David again gave Marilyn $200 per week for the support of the family. From June, 1977, until December, 1981, Marilyn again worked for David in his restaurant businesses. During this period she received a salary of $300 per week and was promoted to a managerial position.
In the modification proceedings, David contended that the amounts paid to Marilyn were payments on the $10,000 note. Marilyn testified that she had not observed a notation on the checks indicating they were loan payments, that David never told her they were loan payments, and that she never intended to credit them on the loan. Marilyn also testified that her net takehome pay while working for David was $950 per month during 1981, and that she had permitted David to declare the three minor children as dependents on his federal income tax each year since the dissolution. The record further reflects that Marilyn, David, and the three children lived together periodically after the dissolution in 1972 until approximately nine months prior to the time Marilyn instituted the modification proceedings.
Marilyn testified that, in December, 1981, upon returning from a one-week vacation over Christmas to visit her family, she found she had been terminated from her employment as manager of David's restaurant. The evidence reflects that David had changed the locks on the restaurant and applied her last two paychecks toward an outstanding company loan. At the time of trial Marilyn was unemployed and had sought employment for one and one-half months. She requested $1300 per month in alimony and $800 per month in child support. The record at trial reflected that David owned two homes, a condominium, and the real property in Cocoa and Melbourne on which his restaurants were located; that he was the sole shareholder in the corporation that operated the restaurants and that the corporation owned an $80,000 boat purchased in 1980, upon which monthly payments of $1,300 were being made, and a current model Cadillac Seville. The evidence established that David's average monthly checking account balance during 1980 and 1981 was $5,481.54. Testimony further reveals that Marilyn is in good health; that she holds a degree from Brevard Community College; that, except for limited experience as a telex operator, she has worked only in the restaurant field; and that she could expect only a minimal salary in any employment.
Upon these facts, the trial judge entered his final judgment which provided in part:
2. The Court denies the Former Wife's claim for a conveyance of the Former Husband's interest in a residence located at 2966 Barkway Drive, Cocoa, Florida 33922 as lump sum alimony. The Court, however, awards to the Former Wife sole and exclusive occupancy and possession of this residence until she shall remarry or until the youngest child of the marriage, Christopher, attains the age of eighteen years, dies, marries, or either the Former Wife of the youngest child permanently leaves said residence. During the time of the Former Wife's sole and exclusive occupancy and possession of said residence, the Former Husband shall as an incident to child support make all mortgage payments on said residence, pay all of the taxes and insurance and all repairs for said marital residence.
3. That the Former Husband shall pay to the Former Wife $350.00 per month, per child for the support of Patrick Walter and Christopher Walter until each child shall attain the age of eighteen years, die, marry, or come to permanently reside with the Former Husband. The child support payments shall commence March 1, 1982 and shall continue on the first of every month thereafter as provided for in this Order.
4. That the Court orders the Former Husband to pay to the Former Wife the sum of $350.00 as permanent periodic alimony. The monthly permanent periodic alimony to be paid by the Former Husband to the Former Wife shall continue *542 until the Former Wife remarries or the death of either party. The alimony payments shall commence March 1, 1982 and shall continue on the first of every month thereafter as provided for in this Order. At such time as the youngest child of the marriage attains the age of eighteen years it is the Court's determination that the issue of permanent alimony to the Former Wife be revisited unless said permanent periodic alimony is earlier modified upon a showing of a substantial and material change of circumstances under F.S. 61.14, 1982 as amended.
(Emphasis added.) In reviewing the facts, it is clear that the trial judge resolved the support issues by providing Marilyn and the children with the use of the premises in which they had been residing for approximately five years, together with approximately the same amount of real dollars that she had been receiving from David and/or his business for the support and maintenance of the family unit for at least a year prior to the date the modification petition was filed. Further, the trial court found a future substantial and material change of circumstance by directing that the issue of permanent alimony be revisited after the youngest child reached his majority, unless the award had been previously modified. In our view, the trial court's award is tailored to the unique circumstances of the parties, and is consistent with the needs of Marilyn and the children and the ability of David to maintain the standard of living established by the parties. Under the facts and circumstances of this case, we find the judgment of the trial court to be reasonable.
We quash the decision of the district court and remand with directions that the judgment of the trial court be reinstated and that the cause be remanded to the trial court for a determination of petitioner's entitlement to and amount of attorney fees in the appellate proceedings.
It is so ordered.
BOYD, C.J., and ADKINS, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626495/ | 169 N.W.2d 239 (1969)
The STATE of South Dakota, Plaintiff and Respondent,
v.
Steven R. BROWN, Defendant and Appellant.
No. 10626.
Supreme Court of South Dakota.
July 3, 1969.
Lammers & Lammers, Madison, for defendant and appellant.
Frank L. Farrar, Atty. Gen., Donald Erickson, Asst. Atty. Gen., Pierre, Clinton J. Nagel, State's Atty., Salem, for plaintiff and respondent.
HANSON, Judge.
Defendant was convicted of the crime of Drunken Driving in the Circuit Court of McCook County. He contends the conviction *240 should be set aside because (1) he was denied a preliminary hearing on the Information filed in Circuit Court, and (2) misconduct of the jury prevented a fair and impartial trial.
The filing of a preliminary information is one means of initiating a criminal prosecution in this state. An information cannot be filed against any person "for any offense until such person shall have had a preliminary examination thereof as provided by law before a magistrate, unless such person shall waive such right." SDCL 1967 23-20-2. When the defendant has not had a preliminary examination before the information is filed the indictment or information must be set aside by the court in which defendant is arraigned upon defendant's motion. SDCL 1967 23-36-1(5).
With respect to these procedural requirements the record in the present action shows that on December 2, 1967 the following Preliminary Information was filed with L. A. Eickman, a Justice of the Peace in McCook County:
"State of South Dakota |
v. | Complaint For Drunken Driving
Steven R. Brown } Viol. SDC 44.9922
|
Defendant |
Douglas Nelson, being first duly sworn and examined on oath, by the undersigned, L. A. Eickman, a Justice of the Peace in and for the County of McCook and State of South Dakota, on his oath, complains and charges that on or about the time of 12:25 A.M., on the 2nd day of December A.D. 1967, at Hiway 81 and Center Ave., Salem in the County of McCook, and State of South Dakota, Steven R. Brown did commit the offense of Drunken Driving, in this: that at the said time and place, the said defendant did, willfully and unlawfully, drive and operate a certain motor vehicle, commonly known as a Ford automobile license number 46-3035 for the year 1967, upon a public highway, to-wit Hiway 81 in the County of McCook, South Dakota, to-wit; on Hiway 81, Center Avenue and Main Street all in the City of Salem, South Dakota contrary to the form of the statute * * *."
A warrant of arrest followed and defendant was brought before the Justice on the same day the Preliminary Information was filed. After being advised of his rights defendant waived a preliminary hearing and furnished an undertaking to appear and answer the charge in Circuit Court. He thereafter retained counsel who was advised by the State's Attorney defendant could, without objection by the State, withdraw his waiver and a preliminary hearing would be conducted. Defendant did not take advantage of this offer.
When arraigned in Circuit Court defendant moved to set aside the Information for the reason no preliminary hearing had been held on the offense alleged in the Information. Contrary to the State's contention this motion was timely made and was not waived by defendant's waiver of a preliminary hearing. Such motion could not be made until an Information was actually filed and defendant arraigned in Circuit Court. By waiving preliminary hearing a defendant waives formal defects and irregularities in the preliminary proceedings, *241 but his right to have an indictment or information set aside for certain defects or jurisdictional cause is expressly preserved by SDCL 1967 23-36-1.
Defendant admits the Information sufficiently alleges the crime of Drunken Driving, but asserts the Preliminary Information filed in Justice Court is fatally defective and void as it fails to specifically allege defendant operated his motor vehicle "while in an intoxicated condition or under the influence of intoxicating liquor".
As its name implies a preliminary hearing is merely a prelude to trial. The State is not obligated to prove guilt of the accused beyond a reasonable doubt. It provides an opportunity to screen out false and groundless accusations. Its sole purpose is to ascertain whether or not there is probable cause to believe a crime has been committed and if the accused committed it. State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45. For this purpose a preliminary information "does not need to charge the particulars of the offense with the precision used in an indictment or information. It is sufficient if it fairly apprises accused of the nature of the offense charged". State v. Hanson, 53 S.D. 205, 220 N.W. 518. As the North Dakota Court explained in State v. Cook, 53 N.D. 429, 206 N.W. 786, preliminary informations are "usually prepared by persons without technical knowledge of the law, and should not be examined with the same exacting scrutiny as the information, which constitutes the basis of the prosecution."
Tested by this standard the preliminary information informed defendant he was charged with the offense of Drunken Driving contrary to the provisions of SDC 44.9922 allegedly committed while operating a Ford automobile on a particular public street in the City of Salem, McCook County, South Dakota, on the 2nd day of December, 1967 at 12:25 a.m. of that day. This sufficiently and fairly advised defendant of the nature of the offense charged against him. The motion to vacate and set aside the Information was, therefore, properly denied.
Defendant's second assigned error is more serious in nature. It appears that during a recess in the trial shortly before instructions were given the members of the jury were allowed to go in the hall or corridor adjoining the courtroom which was also used by witnesses and spectators. During this period the Sheriff and Highway Patrolman talked and visited with some of the jurors. The Sheriff and Patrolman were the State's only witnesses. In her affidavit, Darlene Brown, mother of the defendant, among other things stated she "saw Harold Lockwood, Sheriff of McCook County, South Dakota, talk and converse with Kenneth Van Rosendale and Paul M. Stahl, two of the jurors; that thereafter she approached the said juror, Kenneth Van Rosendale, and said to him "Don't you know you aren't suppose[d] to be talking to the Sheriff" to which said juror replied "I can talk to anyone I damn please and it is none of your damn business to whom I talk and you are talking to me, aren't you?" The matter was immediately brought to the attention of the trial court and a mistrial requested. This was denied and the alleged misconduct of the jury was again presented by motion for a new trial supported by several affidavits. As there was no denial or explanation by the State, defendant's affidavits concerning the communications must be assumed to be true and factual.
In State v. Goff, 74 S.D. 312, 52 N.W.2d 300, defendant made a motion for a new trial supported by affidavits alleging that during the trial a juror was seen conversing with two witnesses for the state. A portion of the conversation was allegedly overheard and bad faith was imputed to the juror. Rebuttal affidavits of the juror and witnesses categorically denied the asserted facts. Under the circumstances, this court said the opposing affidavits presented an issue of fact to be determined by the trial court and there was no abuse of discretion *242 shown in denying a new trial. The same conclusion was reached in State v. Brown, 81 S.D. 195, 132 N.W.2d 840, involving a casual conversation by jurors with the deputy state's attorney. These cases are in accord with the prevailing view that a mere casual conversation unrelated to the issues of the case between a witness, or counsel, and a juror does not ipso facto constitute reversible error. Vol. 5, Wharton's Criminal Law and Procedure, § 2121.1.
Most courts apparently follow the rule that a mere showing of some communication between a juror and a witness in a criminal trial without a further showing defendant was prejudiced does not furnish grounds for reversing an otherwise valid conviction. The burden is on defendant to affirmatively show (1) an improper communication or misconduct and (2) its prejudicial effect. However, this court in State v. McCoil, 63 S.D. 649, 263 N.W. 157 and State v. Holt, 79 S.D. 50, 107 N.W.2d 732, along with a substantial number of other courts, follows the view that when an improper communication with a juror is shown to have taken place in a criminal case there arises a rebuttable presumption of prejudice and the burden is on the state to show its harmless effect. See Annot., "Prejudicial Effect, in Criminal Case, of Communications between Witnesses and Jurors." 9 A.L.R.3d, p. 1275 et seq. When alleged juror misconduct is denied or rebutted a question of fact is presented for determination by the trial court.
As the state failed in any manner to show the harmless character of the conversations between the state's witnesses and the jurors in the present case the presumption of prejudice to defendant was not removed. We may assume the conversations were casual and harmless, but this assumption has no probative force or effect in the absence of a denial or explanation of the incident by the state. Consequently, a new trial must be ordered. See State v. Ferguson, 48 S.D. 346, 204 N.W. 652; Sherlock v. Dinneen, 42 S.D. 533, 176 N.W. 519; McGilvery v. Lawrence, 35 S. D. 443, 152 N.W. 698; Godfrey v. Dalquist, 27 S.D. 373, 131 N.W. 299; and Peterson v. Siglinger, 3 S.D. 255, 52 N.W. 1060.
Reversed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626579/ | 356 S.W.2d 864 (1962)
STATE of Missouri, at the Relation of NORMANDY SCHOOL DISTRICT OF ST. LOUIS COUNTY, Missouri, and the Curators of the University of Missouri, Relators,
v.
Fred R. SMALL, as President of the School Board of the Normandy School District of St. Louis County, Missouri, Respondent.
No. 49177.
Supreme Court of Missouri, En Banc.
April 9, 1962.
Rehearing Denied May 14, 1962.
*865 John H. Lashly, St. Louis, for relator Normandy School Dist. of St. Louis County, Paul M. Peterson, Columbia, for relator The Curators of the University of Missouri, Lashly, Lashly & Miller, St. Louis, of counsel.
John B. Sharpe, St. Louis, for respondent.
Hayes & Hayes, James P. Hayes, St. Louis, for amicus curiae.
DALTON, Judge.
This is an original proceeding in mandamus. Our alternative writ was issued upon relators' application therefor and respondent's waiver of service and acceptance of the application as the alternative writ. After the filing of respondent's return, the parties filed a stipulation as to the facts, whereupon relators filed their motion for judgment notwithstanding respondent's return.
Relator Normandy School District is a city school district duly organized and existing under the laws of the State of Missouri. Section 165.263 RSMo 1959, V.A.M.S. Relator, The Curators of the University of Missouri, is a legal entity of the State of Missouri duly existing under the Constitution of the State of Missouri [Sections 9(a) and 9(b), Article IX, Constitution of Missouri, V.A.M.S.], and designated as a body politic by Section 172.020 RSMo 1959, V.A.M.S. Respondent, Fred R. Small, is and was at all the times mentioned herein the duly elected, qualified and acting President of the Board of Directors of Normandy School District of St. Louis County, Missouri, and as such it was his duty among other things to execute lawful and properly authorized conveyances of real estate on behalf of the District.
By this proceeding in mandamus, relators seek to compel respondent to execute a deed conveying certain described property of the relator Normandy School District to The Curators of the University of Missouri under the provisions of a contract entered into by and between the parties, relators herein. The contract resulted from a resolution adopted by The Board of Curators of the University of Missouri at its October 27, 1961 meeting, which resolution authorized the making of a particular offer to the Board of Education of the Normandy School District. The resolution, after the recital of numerous alleged facts in whereas paragraphs, authorized the President and Business Manager of the University to negotiate with the Normandy School District for the transfer to it of a particularly described tract of land, consisting of approximately 128 acres of land with improvements, owned by the Normandy School District and located therein at 8001 Natural Bridge Road, St. Louis County, and further authorized and directed the making of a firm offer to said Normandy School District that, " * * * if it can and will transfer marketable title to the University, the University will pay the School District the sum of $60,000.00 therefor." Various conditions were ordered to be joined in the offer, including the following provision: "That title shall be conveyed to The Curators of the University of Missouri by warranty deed for use in its educational purposes, subject only to taxes and restrictions and encumbrances of record and that a final decision shall be obtained from the *866 Supreme Court holding that the School District is authorized to make this transfer."
The offer was communicated to the Normandy School District by the letter of the President of the University, dated October 27, 1961, in accordance with the said resolution adopted by The Board of Curators of the University. Thereafter, on November 4, 1961, the Normandy School District accepted the mentioned offer and agreed to take steps to promptly comply with the conditions stated in the offer. The acceptance was purportedly authorized by a resolution adopted by the Normandy School District which purported to state the reasons for the acceptance. Included in the resolution authorizing acceptance of the offer was a provision that if, after acceptance, " * * * it is determined by the Supreme Court that the District cannot convey title as herein provided, both parties shall be released from the terms of this contract."
Thereafter, the form for a general warranty deed conveying the particularly described property to The Curators of the University of Missouri " * * * in consideration of the sum of Sixty-Thousand Dollars ($60,000.00) and other good and valuable consideration * * *" was prepared and submitted to the president of said School District Board (respondent), who refused to execute it on behalf of said School District. The proposed deed would have conveyed the mentioned property to The Curators of the University of Missouri "subject to all restrictions and easements of record," with a habendum clause, as follows: "To Have and to Hold the same, together with all rights and appurtenances to the same belonging, unto the Party of the Second Part, and to its transferees, successors and assigns so long as used for its educational purposes."
The stipulation of facts recites that the Normandy School District of St. Louis County comprises an area of approximately fifteen square miles; that it has a population of approximately 52,000 people, and has twenty-six separate incorporated areas within its boundaries; that on September 20, 1958, the voters of the School District approved a $625,000 bond issue to enable said School District to purchase the property here involved; that the 128 acres, with the then existing improvements, were purchased in 1959; that the purchase price was $600,000; and that, when said bond issue was approved by the voters, it was determined that a tax of five cents per $100 valuation of real property for a period of twenty years would be necessary to retire said bonds; and that subsequent to the acquisition of the property by the School District, an increase in the value of real property within the School District, as determined by a reassessment thereof, caused the tax to be reduced to 3.8 cents for $100 assessed valuation to retire said bonds in twenty years. There is no stipulation or other evidence as to the actual market value of the property on November 4, 1961.
Relators' statement of facts, which has the approval of the respondent, recites that: "On the 13th day of May, 1960, by authority of Section 70.220, R.S.Mo., the University of Missouri and the School District entered into a contract for the joint use of this property for the purpose of establishing and operating a Junior College under the name of University of MissouriNormandy Residence Center, under which the District was to recondition the club house and ready the property for school purposes, and the University was to furnish the teaching staff and give the institution the benefits of the University's own curriculum for the first two years of college work, and the dignity and sanction of the University itself as a goal for students finishing the 14th grade in said Residence Center."
It is further admitted "that the School Board of relator School District, at a regularly called and duly held meeting on November 4, 1961, made determinations: (1) that the aforesaid property located at 8001 Natural Bridge Road in said School District is not required for the use of the School *867 District, (2) that the said property could be used for purposes of offering education beyond grade twelve by an institution of higher education, and particularly by the University of Missouri, (3) that the taking over of the Junior College now designated as University of MissouriNormandy Residence Center by The Curators of the University of Missouri for use by it for its educational purposes would be of great and inestimable value to the residents of Normandy School District and to the youth residing therein and others seeking such advantages, (4) that it would be to the best educational interest of the Normandy School District to transfer the aforesaid property to The Curators of the University of Missouri for use in its educational purposes, (5) that the said written offer of The Curators of the University of Missouri then before the Board was fair and reasonable considering the educational and other advantages that would be afforded to the relator School District and the entire community, and (6) that said offer should be accepted."
The record, however, fails to show that any specific obligation was to be assumed by The Curators of the University of Missouri in exchange for the conveyance of the mentioned real estate to it "for use in its educational purposes," other than the payment of $60,000, although the stipulation of facts signed by the parties does recite that: "Upon acquisition of the subject property by the Board of Curators, the University will continue to operate the facility as a two-year college financed by student fees, until such time as the legislature shall authorize its expansion and the development of further facilities on the site." No such proposition was incorporated in the offer submitted to the School District by the president's letter of October 27, 1961.
We need not here relate other detailed facts and circumstances alleged in the application for the alternative writ of mandamus, mentioned in the stipulation of facts filed by the parties, or set out in the statement in relators' brief, all tending to show that it is highly desirable and would be extremely beneficial to both of the relators and to the general public that the contract between the relators be carried into effect by the execution and delivery of the mentioned deed.
Relators contend that the relator School District is empowered to make the conveyance in question under the provisions of Section 165.833 RSMo 1959, V.A.M.S. (Senate Bill No. 7, Section 14, Laws 1961); that Section 165.833 RSMo 1959, V.A.M.S. is a valid and constitutional legislative enactment, since the title of Senate Bill No. 7, Laws 1961, and the provisions of Section 14 (Section 165.833 RSMo 1959, V.A.M.S.) fairly relate to the same subject and have a natural connection with that subject; and that transfers under Section 165.833 RSMo 1959, V.A.M.S. are not governed by the provisions of Section 165.370 RSMo 1959, V.A.M.S.
The title of Senate Bill No. 7 is as follows: "An Act to provide for the formation of junior college districts and to establish the powers and duties of the state board of education with respect thereto."
Section 14 of Senate Bill No. 7, now Section 165.833 RSMo 1959, V.A.M.S., is as follows: "Whenever there is within any school district any school property that is not required for the use of the school district and such property could be used for purposes of offering education beyond grade twelve by an institution of higher education, the board of education is hereby authorized to lease or sell and convey the same to such public institution, and the proceeds derived from such sale shall be placed to the credit of the building fund of such district." (Italics ours.)
Section 23 of Article III of the Constitution of Missouri 1945, in part, provides: "No bill shall contain more than one subject which shall be clearly expressed in its title * * *."
*868 Section 165.370 RSMo 1959, V.A.M.S. (effective since 1909), in part, provides: " * * * and whenever there is within the district any school property that is no longer required for the use of the district, the board is hereby authorized to advertise, sell and convey the same, and the proceeds derived therefrom shall be placed to the credit of the building fund of such district." (Italics ours.)
Section 165.317 RSMo 1959, V.A.M.S. provides: "The government and control of such town or city school district shall be vested in a board of education of six members * * *."
Respondent contends that a school district has no power to sell its property in any other manner than directed by Section 165.370 RSMo 1959, V.A.M.S.; that the proposed sale by School District to the University does not conform to the statutory directions; that Section 165.833 RSMo (Senate Bill No. 7, Section 14, Laws 1961) is unconstitutional and void under Section 23, Article III, Constitution of Missouri 1945 in that the subject of said section is not germane to the general subject of the Act; that the subject of Section 165.833 is not clearly expressed in the title; and that the proposed sale to the University of Missouri is void and cannot be made.
Relators argue that the title of an act need not embrace every detail of the legislation contained in it; that all the Constitution requires is that the subjects embraced in the act shall be fairly and naturally germane to that recited in the title; that the provisions of Section 165.833 are fairly relevant to the general purposes of the Act in question; and that the particular provisions of Section 165.833 are germane to the wide purposes announced in the title of the Act and are connected with its subject matter. Relators also say that the subject matter of Section 165.833 and the title of the Act are entirely compatible, because the general subject of the section and purposes of the Act are to further education beyond the twelfth grade. Relators also insist that "the fact that the title refers to the formation of junior college districts, and Section 14 refers to the transfer of property by a school district does not create an incongruous, unnatural or disconnected relation between the title and that section." Relators say that "Section 165.833 makes special provisions for the transfer of school property from school districts to other educational institutions of the State," but insists that the provisions apply only "in those instances where the transferred property is to be used by the transferee for educational purposes." Relators further say that the section "requires a private sale and the purposes contemplated by the Legislature can be accomplished only by direct negotiations between the respective educational institutions, rather than by an advertised public sale."
Relators and respondent, in their respective briefs, cite and rely upon Edwards v. Business Men's Assurance Co., 350 Mo. 666, 168 S.W.2d 82, 92, which construed Section 28, Article IV of the Constitution of Missouri 1875, the substance of which is now Section 23, Article III of the Constitution of Missouri. In that case the Court said:
"The purpose of the constitutional provision, supra, has been stated as follows: `First, to prevent hodge podge or "log rolling" legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered in order that they have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.' State ex rel. United Railways Co. v. Wiethaupt, 231 Mo. 449, 459, 133 S.W. 329, 331; Southard v. Short, 320 Mo. 932, 8 S.W.2d 903.
*869 "In the case of State v. Hurley, 258 Mo. 275, 278, 167 S.W. 965, 966, the court said: `The purpose of the constitutional provision (section 28, art. 4, Const.Mo.) is that the title shall generally indicate what the act contains, and by the terms "generally indicate" we mean that it shall refer in a comprehensive manner to the subject-matter of the enactment; but it need not necessarily refer to subordinate matters connected therewith or reasonably within the purview of the statute.'
"The provision requires that matters which are incongruous, disconnected and without natural relation to each other must not be joined in one bill, and the title must be a fair index of the matters in the bill. State ex rel. Niedermeyer et al. v. Hackmann, 292 Mo. 27, 31, 237 S.W. 742. It does not prevent the inclusion in one bill, under one general title, of subjects naturally and reasonably related to each other. St. Francis Levee Dist. of Missouri v. Dorroh, 316 Mo. 398, 414, 289 S.W. 925. * * * `The law does not require each separate legislative thought to be embodied in a different bill, when they have a natural connection with each other.' Thomas v. Buchanan County, 330 Mo. 627, 636, 51 S.W.2d 95, 98. `The evident object of the provision of the organic law relative to the title of an act was to have the title, like a guideboard, indicate the general contents of the bill, and contain but one general subject, which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation,then the title can stand on its own merits, as an honest title, and does not impinge on constitutional prohibitions.' City of St. Louis v. Weitzel, 130 Mo. 600, 616, 31 S.W. 1045, 1049; Asel v. Jefferson, 287 Mo. 195, 204, 229 S.W. 1046, 1048. * * *
"The constitutional provision simply requires that the title shall give information of the general subject of the act. While it may be so general in its terms as to omit matters germane to the principal features of the statute, if it sufficiently indicates the substantial purpose of the law, it will not be violative of the Constitution. State v. Sloan, 258 Mo. 305, 313, 167 S.W. 500; State ex inf. Barrett v. Imhoff, 291 Mo. 603, 238 S.W. 122, 126."
Relators also cite Brown v. Sloan's Moving & Storage Co., Mo.Sup., 296 S.W.2d 20, 24; Hoerath v. Sloan's Moving & Storage Co., Mo.Sup., 305 S.W.2d 418; Graff v. Priest, 356 Mo. 401, 201 S.W.2d 945, 952, certiorari denied 332 U.S. 770, 68 S. Ct. 83, 92 L. Ed. 356, and say that these cases are in accord with the Edwards case insofar as it construes the constitutional provision in question. Relators also cite State ex rel. Reorganized School Dist. No. 4 of Jackson County v. Holmes, 360 Mo. 904, 231 S.W.2d 185, 187, 188 where the Court said: "We have uniformly ruled that where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, then the subject is single. * * * `In adopting a title, the legislature may select its own language, and may use few or many words. It is sufficient that the title fairly embraces the subject-matter covered by the act; mere matters of detail need not be stated in the title.' State ex rel. Attorney General v. Miller, 100 Mo. 439, loc. cit. 445-446, 13 S.W. 677, 678. If the title is a fair index to all that is embraced in the statute, then it complies with the constitutional mandate that the title clearly express the subject of the bill."
Relators also refer to cases where the Court "drew the distinction between titles to legislative acts which set forth a number of details, in which cases the particulars not expressly stated are deemed improperly included in the text of the act, and titles which are general and, therefore, not controlled by the rule applicable to the more particularized titles." Relators then argue that Senate Bill No. 7 "has the broad and general purpose of providing for higher education and its title is stated in general *870 terms"; and that "the only limitation on the contents of the Act is that its provisions must relate to the purpose of the legislative enactment." Relators then cite State v. Bennett, 102 Mo. 356, 14 S.W. 865, 10 L.R.A. 717; State ex rel. Lorantos v. Terte, 324 Mo. 402, 23 S.W.2d 120 and Edwards v. Business Men's Assurance Co., supra, as illustrative of general titles having broad coverage. Relators also point to the fact that this Court, in the case of State v. Ward, 328 Mo. 658, 40 S.W.2d 1074, 1076, said with reference to the constitutional provision in question that: "` * * * a very strict and literal interpretation would lead to many separate acts relating to the same general subject, and thus produce an evil quite as great as the mischief intended to be remedied; hence a liberal interpretation and application must be allowed. * * *'" And see: Graff v. Priest, supra, 201 S.W.2d 945, 952; State on inf. of Wallach, Pros. Atty. v. Beckman, 353 Mo. 1015, 185 S.W.2d 810, 815.
We think it clearly appears that the provisions of Section 165.833 are wholly foreign to the title and subject matter of the Act in which the section has been placed. The title is "An Act to provide for the formation of junior college districts and to establish the powers and duties of the state board of education with respect thereto." (Italics ours.) The section in question provides that whenever there is within any school district any school property that is not required for the use of the school district such school district may lease or sell and convey the same to any public institution of higher learning offering education beyond grade twelve. The section also provides how the proceeds derived from such sale shall be disposed of. There was nothing in the title of the Act to advise the public or any member of the Legislature that the Act contained authority for any school district to sell at private sale and convey to any institution of higher learning offering education beyond the twelfth grade any school property of the district not required for its use. Relators say that all of the provisions of the Act relate to "higher education," however, "higher education" is not the title of the Act. The title is much more specific. The purported authority sought to be granted to any school district having any school property that is not required for the use of the school and the directions as to the disposition of the proceeds of the sale of such property are not germane to the formation of Junior College Districts or to the establishment of the powers and duties of the State Board of Education with respect to such Junior College Districts.
The issue presented can be illustrated in the following manner. The School District in question is not a Junior College District, neither are The Curators of the University of Missouri a Junior College District, but relators seek to use a provision of "An Act for the formation of junior college districts and to establish the powers and duties of the state board of education with respect thereto," (italics ours) as authority for the proposed transfer of the mentioned property by the School District to the University. If the section relied upon does, in fact, on its face purport to authorize such a transfer, are its provisions within the purposes of the Act as indicated by its title? If the section authorizes such a conveyance does the title of the Act "give information of the general subject of the Act," including the provision in question? Did the title give any intimation to the public or the members of the Legislature that such a provision was included in the Act? In other words, is the authority now relied upon to support the proposed conveyance within the purview of the title of the Act and germane thereto? The answers to these questions must certainly be, no. Relators refer to the "wide purposes announced in the title," but we do not find it wide enough to include the authority now sought to be exercised under the mentioned provision of the Act. We must and do hold that the subject matter of Section 14 of the Act (Section 165.833 RSMo) is not "clearly expressed" in the title of the *871 mentioned Act and the said section is unconstitutional and void. However, even if valid, the section could hardly be said to authorize a sale of school property for ten percent of its value, since such would not be upon the usual terms of a private sale and the building fund would be deprived of nine-tenths of its value.
Relators further contend that: "The power of government and control vested in the Relator District by necessary implication includes the power to permit the use of the land in question for educational purposes by the State University, if the Board of Education of Relator District shall have found that the educational interests of the Relator District will be best served thereby." (Italics ours.) However, no such issue is presented to us on this record which concerns a proposed sale and conveyance of property of the value of some $600,000 owned by the School District, but not required for the use of the School District, to The Curators of the University of Missouri "for use in its educational purposes" for $60,000. It is clear from the admitted facts that the proposed sale was not made after advertisement; that it was not made at public sale; that the sale was not to the highest bidder after advertisement; and that the parties are and have been proceeding on the basis of a private contract and private sale for a cash consideration not exceeding ten percent of the cost of the property to the School District in 1959. Relators further argue that: "The proposed transfer is lawful as merely a transfer of state property held by one trustee for the state for educational purposes to another trustee for the state for educational purposes"; and that, "property belonging to school districts is the property of the state and is held by the school district as a statutory trustee and the residents of the school district have no private property interest therein."
Relators rely upon the rule stated in 47 Am.Jur. 342, Schools, Sec. 65, as follows: "The ownership of school property is generally in the local district or school board as trustee for the public at large. Such property occupies the status of public property and is not to be regarded as the private property of the school district by which it is held or wherein it is located." Relators also cite State ex rel. Richart v. Stouffer, Mo.Sup., 197 S.W. 248; School District of Oakland v. School District of Joplin, 340 Mo. 779, 102 S.W.2d 909; City of Edina, etc. v. School District, 305 Mo. 452, 267 S.W. 112, 36 A.L.R. 1532.
While it is true that: "In Missouri the property of school districts acquired from public funds is the property of the state, not the private property of the school district in which it may be located, and the school district is a statutory trustee for the discharge of a governmental function entrusted to the state by our Constitution" (School District of Oakland v. School District of Joplin, supra, 102 S.W.2d 909, 915) and while "school districts are purely public corporations, and may be created and abolished at will by the Legislature or by any one by it lawfully authorized" (State ex rel. Richart v. Stouffer, supra, 197 S.W. 248, 252(4)) and while the Legislature may make statutory provision for the transfer of title to property from one such public corporation to another (see Section 165.300 RSMo 1959, V.A.M.S.), nevertheless the question here is whether or not there is any statutory authority for any such transfer of the property of the Normandy School District to The Curators of the University of Missouri as is here proposed. Absent such authority a school district may not sell, transfer or give away its property or devote it to a different use than that prescribed by the statutes under which such public corporation exists and its property is held.
Relators, however, insist that authority for the proposed transfer of title exists under Section 165.317 RSMo 1959, V.A.M.S., which provides that the government and control of such town and city school districts shall be vested in the Board of Education. Relators say that section vests *872 the School Board of Relator District with all the powers required to effectively and efficiently carry out its educational purposes, including the sale and transfer of the mentioned property for the mentioned consideration and under the mentioned circumstances to The Curators of the University of Missouri.
The Legislature did not stop with the general statute now relied upon, but included Section 165.370 dealing with the particular and specific matter of the disposition of property "that is no longer required for the use of the district." This section authorized the Board "to advertise, sell and convey the same" and to place the proceeds to the credit of the building fund of the district. The special statute controls over the general statute. "Under the established rules of statutory construction where there are two laws relating to the same subject they must be read together and the provisions of the one having a special application to a particular subject will be deemed to be a qualification of, or an exception to, the other act general in its terms." Eagleton v. Murphy, 348 Mo. 949, 156 S.W.2d 683, 685, 138 A.L.R. 749; Fleming v. Moore Bros. Realty Co., 363 Mo. 305, 251 S.W.2d 8, 15(6, 7).
Relators further argue that: "There is, however, no statute which, by express terms or implication, can be reasonably construed to withdraw from the general powers granted a school district the right to permit the use of its property by another educational institution, when it has been found that such use is to the best interest of advancing the educational advantages of the school district"; and that "unless there is sound and compelling reason to hold otherwise, the statute should be construed so as to aid, not impede, the carrying out of the general purpose of the Legislature. State [on Inf. of Taylor] v. Kiburz, 357 Mo. 309, 208 S.W.2d 285." (Italics ours.)
Again, we must say that the issue presented by this argument is not before the Court. The record before us presents a proposed private transfer of some $600,000 worth of the School District's property to The Curators of the University of Missouri for $60,000, it being agreed that the property is "for use in its educational purposes" and the deed provides that the property be so owned and held "so long as used for its educational purposes." It is apparent from the record presented that relator School District proposes to totally divest itself of any beneficial interest in or any ownership of or control over the described 128 acres of land and improvements.
Relators insist that this transfer of title "does not constitute a sale within the purview of Section 165.370 R.S.Mo., and the provisions of that statute relating to a sale of school district land are not applicable to this transfer"; that the statutory "procedure applies only to sales where property is being transferred away from educational uses and placed in the general channels of commerce * * * that it is not applicable to the transaction here under consideration"; that "where the transfer is from one state agency to another, both of which are charged with the duty to advance educational purposes, and where the property is to remain in educational channels, the reason for the requirement of public sale does not apply"; and that "the law favors a statutory construction harmonizing with reason and tending to avoid harsh, unreasonable or incongruous consequences and, especially, results detrimental to the public interest." State v. Bern, Mo.App., 322 S.W.2d 175, 177, and cases therein cites. Relators further argue that "upon consummation of the proposed transfer" the Normandy School District "will have control over the use that may be made of the property" because of the "limitation that the property be used only for educational purposes." We find no merit in this argument for the reason that whether we call the transaction a transfer or a sale the record shows an attempt to dispose of property not now required for the use of the School District, but by a method unsupported *873 and unauthorized by any statutory or constitutional authority.
Relators' final contention is that "the consideration for the proposed transfer * * * is fair and reasonable under the circumstances and constitutes `adequate' consideration commensurate with the value of the interest to be transferred"; that "the record before the court shows the benefit to be received by the Normandy School District and the taxpayers residing therein is commensurate with the value of the interest in the property being transferred to the University of Missouri"; and "upon completion of the proposed arrangement, Relator School District will be relieved of the perpetual administrative, financial and other burdens attendant to the ownership and operation of the Junior College which it now is operating under contract and in conjunction with the University of Missouri."
It is clear from the record that the alleged benefits to the School District above $60,000 are entirely contingent upon the subsequent management, control and use of the property which in turn are contingent upon subsequent appropriation of funds by the Legislature for such use by the University. Relators recognize the contingency since they say that consummation of the proposed transfer will "put it in the power of the University to expand its higher educational program by the establishment of a branch University in a location already seeded for success should the Legislature in its wisdom and within its available resources approve this form of progress." The essential and decisive facts are that the District seeks to divest itself of title to the property in exchange for some ten percent of its value without any attempted compliance with the applicable statutory provisions. This it cannot do, absent express legislative authority.
Our peremptory writ is denied and the application therefor is dismissed.
EAGER, J., concurs in result in separate opinion filed.
HYDE, J., concurs in separate opinion filed.
HOLLINGSWORTH, J., concurs in result and concurs in the separate opinions of EAGER and HYDE, JJ.
STORCKMAN, J., dissents in separate opinion filed.
WESTHUES, C. J., dissents and concurs in the dissenting opinion of STORCKMAN, J.
LEEDY, J., dissents and concurs in the dissenting opinion of STORCKMAN, J., except that paragraph expressing doubt as to the effect flowing from declaring a portion of an act unconstitutional under Art. III, Sec. 23 of the Constitution.
HYDE, Judge (concurring).
I concur in the ruling of the opinion of DALTON, J., herein that Sec. 165.833, RSMo (1961 Cum.Supp.) V.A.M.S. is invalid and concur in the reasons therefor stated in the separate concurring opinion of EAGER, J. I would add the following comments. It certainly is true, as stated in School District of Oakland v. School District of Joplin, 340 Mo. 779, 102 S.W.2d 909, 915, cited by relators: "In Missouri the property of school districts acquired from public funds is the property of the state, not the private property of the school district in which it may be located, and the school district is a statutory trustee for the discharge of a governmental function entrusted to the state by our Constitution." Since school property is the public property of the State, the Legislature may authorize or require its transfer from one school district to another as it had done by statute in the Oakland case. (See also State on inf. of Dalton v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225, *874 231.) Thus the Legislature could have authorized any school district to transfer property to a state institution of higher education without any lease or sale for the purpose of using it to operate a junior college. However, it has not done so by Sec. 14 of the 1961 act. (Sec. 165.833.)
Sec. 165.833 does not say that a school district may transfer school property to an institution of higher education which will assume the obligation of using it for operating a junior college; nor does it state any requirements for specifying or determining the use to be made of the property and fixing the obligation to do so. Instead it only authorizes a school district that has property not required for its use to sell or lease such property, as could be used for higher education, to such an institution. "Sell" or "lease" would seem to mean a transaction based on reasonable value especially since the proceeds are required to be placed in the building fund of the district, the same as required for a sale to others by Sec. 165.370, RSMo. The principal difference is that Sec. 165.833 does not require an advertised sale for such a transaction with an institution of higher education.
This seems to me to get far away from "the formation of junior college districts and to establish the powers and duties of the state board of education with respect thereto." Instead it has to do with the sale or lease of school district property to institutions of higher education with the use to be made of such property unrestricted. If the Legislature had by this bill specifically authorized transfers of property of school districts, with or without consideration, to state institutions of higher education for the purpose of operating junior colleges we would have a different question. Of course, it could authorize such a transfer for any purposes of higher education by a separate bill with a title clearly expressing such provision as its subject. This, in my view, would be a separate subject from formation of junior college districts.
I do not share the doubt expressed in the dissenting opinion of STORCKMAN, J., as to declaring this portion of the Act unconstitutional under Sec. 23, Art. III, and letting the remainder stand. The provisions clearly within the title are valid and only the part not covered by the title is invalid when it is severable. (State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179, 184, and cases cited; see also West's Missouri Digest, Statutes 64(10).) I do not see how there can be any doubt that the Act provides a complete and workable plan for formation of junior college districts without Section 14.
EAGER, Judge (concurring in result).
It is my view that if § 165.833 (Cum. Supp.1961) had so restricted the power "to lease or sell" property that it could only be leased or sold to a Junior College District, then the purpose and intent of the section would have been germane to the purpose of the act and fairly within its title. As the section now stands, such a conveyance may be made to any institution "offering education beyond grade twelve." Those provisions necessarily include a University offering a full four-year course and graduate work. The act purports to deal only with Junior College Districts which propose to offer "13th and 14th year courses." Section 165.800; Section 165.793. The Curators of the University are clearly not a Junior College District; the section, as it now stands, is broad enough to authorize a conveyance to them and, as thus construed, it is not germane to the title of the act or to its basic content. My conclusion is that the conveyance here is invalid, and that § 165.833 is, in its present form, unconstitutional. In my opinion the section could readily be amended so as to restrict the power to convey, as suggested, and thus be constitutional.
I do not concur in that part of the principal opinion holding the conveyance invalid because of inadequate consideration. *875 STORCKMAN, Judge (dissenting).
I regret that I am unable to concur in the holdings of the majority opinion or in its result.
The facts as stated in the pleadings are admitted and there is also a stipulation of further facts and these together with the exhibits attached to the pleadings are the source of the facts upon which the issues of law must be decided. The undisputed facts as so developed are set out in a printed Abstract of the Record.
The relators and the respondent have filed briefs. Leave was granted and a brief was filed on behalf of an amicus curiae. The brief is signed by a firm of attorneys but the name of the amicus curiae is not disclosed. The amicus curiae's brief endorses the respondent's position but does not purport to brief or argue the issues made by the parties. Instead the unnamed amicus curiae undertakes to brief and argue these additional questions: (1) that § 165.833 and the entire Junior College Districts Act are special legislation in violation of Art. III, § 40, subd. (16), of the Constitution of Missouri 1945, and (2) that Art. IX, § 8, Constitution of Missouri 1945, prohibiting public aid for religious purposes and institutions, and the Junior College Districts Act violates the First and Fourteenth Amendments to the Constitution of the United States and are, therefore, unconstitutional. The law is well settled that the court will not pass on grounds of invalidity urged by an amicus curiae but not presented by the parties since an amicus curiae cannot formulate issues but must take the case as he finds it. Laret Investment Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65, 70 [11]; State ex rel. News Corp. v. Smith, 353 Mo. 845, 184 S.W.2d 598, 600[6]. Since the brief of the amicus curiae does not bear upon the issues before us, it must be disregarded.
The respondent's principal contention of invalidity is his Point II, which is as follows: "Section 165.833, R.S.Mo. (Laws 1961, S.B. No. 7, Section 14), is unconstitutional in that it is not germane to the general subject of the Junior College Districts Act (Section 165.790, et seq., Laws 1961) nor was the subject of Section 165.833 clearly expressed in the title to the Bill. If Section 165.833 is not unconstitutional, then its provisions can only apply to a leasing or selling of school board property to a Junior College District and a sale to The University of Missouri is void." In support of this point, the respondent cites Art. III, § 23, Constitution of Missouri 1945, and Edwards v. Business Men's Assurance Co. of America, 350 Mo. 666, 168 S.W.2d 82.
Section 23 of Art. III of the Constitution provides that: "No bill shall contain more than one subject which shall be clearly expressed in its title * * *." The constitutional section therefore provides for two things: (1) that no bill shall contain more than one subject, and (2) that the subject shall be clearly expressed in the title.
The majority opinion holds that the Junior College Districts Act violates the constitutional prohibition in both respects, stating on page 870: "We think it clearly appears that the provisions of Section 165.833 are wholly foreign to the title and subject matter of the Act in which the section has been placed." With this viewpoint I cannot agree. I believe it to be out of harmony with adjudicated cases and well-established rules of interpretation. It has been said repeatedly that each case arising under Art. III, § 23, must be decided on its own particular facts. It would serve no purpose to review even a small portion of the many adjudicated cases on this issue, but a brief reference to accepted standards and rules of construction may be helpful.
Both parties rely upon Edwards v. Business Men's Assurance Co. of America, 350 Mo. 666, 168 S.W.2d 82. In that case the court held an insurance statute was constitutional and not in violation of Art. III, § 23. The majority opinion quotes liberally from the decision and there is no need to repeat any part of it here.
*876 The writer has found six cases in which school legislation has been attacked as being unconstitutional on the ground that it violated Art. III, § 23. In each case the legislation was held not to be unconstitutional. In one of the earlier cases. State ex rel. Wolfe v. Bronson, 115 Mo. 271, 21 S.W. 1125, 1126, this court stated: "These and other cases show that this section of the constitution is to be reasonably and liberally construed and applied, due regard being had to its object and purpose. It was designed to prevent the insertion of disconnected matters in the same bill. The section asserts only two propositions. The first is that no bill shall contain more than one subject, and the second is that this single subject must be clearly expressed in the title. If all the provisions of the bill have a natural relation and connection, then the subject is single, and this, too, though the bill contains many provisions. As to the second proposition, namely, that the single subject must be clearly expressed in the title, it is sufficient to say that the legislature may select its own language, and may use few or many words. It is sufficient that the title fairly embraces the subject-matter covered by the act; mere matters of detail need not be stated in the title." The title of the act, Acts 1891, p. 26 involved was "An act to establish and maintain a uniform course of text-books to be used in all the public schools within this state, and to reduce the price thereof." In spite of the all-inclusive title, a proviso of the act excluded from its operation cities and districts having more than 100,000 inhabitants. It would seem that those included or excluded might have been misled, but the court held that the fact that the title was broader than the act itself did not make it unconstitutional.
The latest school law case seems to be State ex rel. Reorganized School Dist. No. 4 of Jackson County v. Holmes, 360 Mo. 904, 231 S.W.2d 185. The court held that an act providing for the creation of county boards of education, the preparation of a reorganization proposal and its submission at an election and the granting of state aid to the reorganized school district did not violate the constitutional provisions against the bill having more than one subject because they were all related to reorganized school districts. The court stated, 231 S.W.2d loc. cit. 187-188: "We have uniformly ruled that where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, then the subject is single." Emphasis added. The court also denied a contention that the title was less comprehensive than the act, stating loc. cit. 188: "`In adopting a title, the legislature may select its own language, and may use few or many words. It is sufficient that the title fairly embraces the subject-matter covered by the act; mere matters of detail need not be stated in the title.' State ex rel. Attorney General v. Miller, 100 Mo. 439, loc. cit. 445-446, 13 S.W. 677, 678. If the title is a fair index to all that is embraced in the statute, then it complies with the constitutional mandate that the title clearly express the subject of the bill."
Other cases where attacks have been made on school legislation as being unconstitutional in violation of Art. III, § 23, are State ex rel. Attorney General v. Miller, 100 Mo. 439, 13 S.W. 677; State ex rel. School Dist. of Memphis v. Gordon, 223 Mo. 1, 122 S.W. 1008; State ex rel. Clark v. Gordon, 261 Mo. 631, 170 S.W. 892; and State ex rel. and to Use of Consolidated School Dist. No. 3 of Franklin County v. Miller, 326 Mo. 830, 33 S.W.2d 122. In all of these cases the constitutionality of the acts were upheld.
A number of cases stress the fact that the subject of an act is single when all provisions fairly relate to the same subject, have a natural connection therewith, and are incidents or the means of accomplishing it. See Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95, 97[3].
The title of an act should be liberally construed to support the power sought to be *877 exercised by the general assembly, and where neither the public nor the general assembly would likely have been misled as to the general contents or subject matter it will be deemed a sufficient compliance with the constitutional mandate. See Willhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708, 711 [4, 5].
A similar principle was involved in State ex rel. Board of Fund Commissioners v. Holman, Mo., 296 S.W.2d 482, 491 [6], where a number of items in a bond issue were held to be "germane to a single controlling purpose." See also State v. Bennett, 102 Mo. 356, 14 S.W. 865, 10 L.R.A. 717; State ex rel. Lorantos v. Terte, 324 Mo. 402, 23 S.W.2d 120; and State v. Ludwig, Mo., 322 S.W.2d 841.
The approach of the courts to the determination of this question is well stated in a case determining the validity of the County Budget Law, Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543, 549, as follows: "There is a presumption that the statute here assailed is constitutional. The burden rests upon the party questioning the constitutional validity of a statute to establish its unconstitutionality beyond a reasonable doubt, and if its constitutionality remains in doubt, such doubt must be resolved in favor of its validity. [citing cases.] This court has long been committed to the principle that section 28 of article 4 of our Constitution must be liberally construed. [citing cases.] A liberal construction of the constitutional provision in question requires that such construction be fair, reasonable, and rational, to the end that legislative action shall not be thwarted and nullified by the courts by a resort to undue subtleties and refinements or extreme and artificial formalism."
Viewed in the light of these well-established principles, I am unable to find anything in the Abstract of the Record or the respondent's brief that convinces me that the respondent has carried his burden of demonstrating that the Act in question is unconstitutional either because of a multiple subject, or because of a defect in the title of the Act. The Act relates entirely to education and to education beyond grade twelve. Although the title stresses "formation" of the junior colleges, sections of the Act deal with operations such as financing and curriculum. Disposition and acquisition of physical property is a necessary part of the operation and it is required that the accreditation standards shall give due consideration "to curriculum offerings and entrance requirements of the University of Missouri." Section 165.833 is directly related to junior college districts. It would certainly justify a transfer by the school district of the real estate in question to a junior college organized under the Act because a junior college is a public educational institution offering education beyond grade twelve. The respondent recognizes this fact in the second or alternative part of his Point II. The University offers instruction in grades thirteen and fourteen and I cannot see any valid reason for holding the proposed transfer void because the University may in the future (as indicated by the record) also offer a complete college course which would have to include grades thirteen and fourteen. Since § 165.833 is related to education beyond grade twelve, I think it is strictly for the general assembly to determine the legislative question of whether public educational institutions offering education beyond grade twelve should be permitted to contract with and acquire property to be used for such an educational purpose. See Art. VI, § 16, Constitution of Missouri 1945; §§ 70.210(2) and 70.220, RSMo 1959, V.A.M.S.; Art. IX, §§ 9(a) and 9(b), Constitution; § 172.020, RSMo 1959, V.A.M.S.
I cannot subscribe to the view that the purposes of the constitutional safeguards as listed in Edwards v. Business Men's Assurance Co. and other cases have been violated. A clear example of the sort of thing prohibited by the state constitution is the combination of such unrelated matters *878 as a proposal to establish a national monument and a proposal to abolish the state poll tax which misalliance is apparently in a bill now before the National Congress where such practice is not prohibited. Certainly the junior college bill was not "hodgepodge or log rolling legislation" which is the practice of combining unrelated matters for parlimentary strategy, concealment or vote-getting purposes. Nor does it violate the second or third purposes which are to give reasonable information and notice to legislators and to the public of the contents of bills.
Perhaps the respondent's strongest condemnation of § 14 of the Act (§ 165.833) is his statement that: "Respondent doubts that some members of the Legislature and the public were aware of the fact that this exception to the general rule governing sale of surplus school district property, was adopted." This probably could be said of many other perfectly valid statutes in force today, but it is not the constitutional standard. Anyone with an active interest in education generally, education beyond grade twelve, junior colleges or colleges generally, would undoubtedly be stimulated to read the bill and would not be deceived or misled as to its contents. It has been said that such constitutional provisions "presuppose a reasonably inquiring state of mind which will follow the trail indicated by the main part of the title into the body of the act." 82 C.J.S. Statutes § 212, p. 350.
The extent to which a person is expected to inquire and investigate is indicated by Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369, 372-373[3], which considered the constitutionality under Art. III, § 23, of a statute fixing the salaries of county judges. The new law substituted salary in lieu of certain other fees, allowances and compensation. The bill referred to the statute to be amended and the new statute by section number, but mistakenly said the section was in Article 6 instead of Article 5. The court held that a person of average intelligence by "looking through the statutes" would be able to find the section and denied the claim of unconstitutionality as being hypertechnical.
On principle, In re Tarkio-Squaw Levee District of Holt County, Mo., 319 S.W.2d 660, is very similar to the instant case. There the bill, Laws 1947, p. 226, referred to the old and new sections by number and the title stated in substance that the sections related "to the organization and functioning of levee districts by Circuit Courts". Nevertheless, the new section 12510 RSMo 1939, added a proviso, not in the old one, authorizing the board of supervisors to cooperate with federal agencies, accept grants in aid and to "give such assurances as may be required to obtain the construction of the works and improvements". The court held that the reference to the statute to be amended by section number was sufficient and that the new proviso which made the federal agency the dominant actor in the reclamation project did not render the act unconstitutional, stating, 319 S.W.2d at page 665: "The amendment was germane to the subject matter contained in the title to the original act authorizing the organization; of levee districts which was `An Act providing for the organization of levee districts by the owners in any contiguous body of land situate in one or more counties in this state and bordering on, situate near or subject to overflow by the rivers of this state, to prevent and to protect such lands from such overflows.' Laws 1887, p. 208."
To hold that § 165.833 is "wholly foreign to the title and subject matter of the Act" is to adopt an unwarranted strictness of construction which thwarts the will of the legislature and unnecessarily hinders and impedes our public educational institutions in bringing higher education to various sections of the state, a program that has been far advanced in other states. I would hold the entire Junior College Districts Act, including § 165.833, to be constitutional.
*879 Holding § 165.833 entirely void, of course, precludes school districts and junior college districts from contracting directly with each other with respect to real estate which a school district does not need and which it wishes to transfer to a junior college district of which it is a constituent part.
I seriously doubt if the court can declare a portion of an act unconstitutional and let the remainder stand where the attack is based on Art. III, § 23. This is especially true where the act is held to contain more than one subject. Art. III, § 23, prohibits the entire act if it contains more than one subject and the court can hardly be justified in choosing from the act the subject which, if submitted alone, the legislature would have enacted. To a lesser degree, perhaps, the same is true of a defective title. The title might in certain cases give a better clue as to the legislative intent but still the constitutional provision says "No bill" shall have a title that does not clearly express its contents. The severability statute, § 1.140, would not prevail over the constitutional mandate. This is wholly unlike a situation where the constitutional prohibition is not directed to the entire act and is found to inhere only in an unneeded portion. It may be that the authority to acquire real estate at less than its value in the open market for business or residential purposes was a potent factor in the passage of the bill.
Since the majority opinion holds there is no valid basis for the proposed conveyance, I can see no need for its discussing adequacy of consideration, but since it has done so, I will advert to that topic briefly. If § 165.833 is constitutional, then I think it is entirely within the competence of the board of education of the school district and the board of curators of the University to make a contract that benefits the cause of education. That is their statutory duty and there is no reason to suspect that either is seeking a financial advantage to the detriment of the other. A reading of the record demonstrates that the proposed junior college is mutually advantageous and that the consideration flowing to the school district is not entirely expressed in dollars presently passing. This sort of endeavor is of equal or greater importance than an industrial development project which the general assembly has authorized communities to sponsor. Sections 71.790-71.850, RSMo Cum.Supp.1961, V.A.M.S.; State ex rel. City of Charleston v. Holman, Mo., 355 S.W.2d 946. Absent a charge of fraud or positive wrongdoing, the court should summarily dismiss a contention like this one.
Further on this score I do not think that the majority opinion is justified in its apparent concern that the University is not sufficiently bound to perform its part of the bargain in view of its constitutional and statutory duties, the reservations in the proposed deed and the facts stipulated.
The respondent further contends that school property not needed by the school district can only be sold by advertising and at a public sale in accordance with the provisions of § 165.370. Section 165.370 is general in nature which applies when the school district is making an absolute conveyance to private persons for business or residential purposes. Section 165.833 is a specific section designed to cover situations when the conveyance is made to another public institution for the purpose of offering education beyond grade twelve. This new section being a specific section and the more recent enactment would control over the general provision.
In my opinion the respondent's objections to signing the deed are without merit. I would order the peremptory writ of mandamus to issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626542/ | 356 S.W.2d 186 (1962)
Laura FISCH, Appellant,
v.
TRANSCONTINENTAL INSURANCE COMPANY, Appellee.
No. 13912.
Court of Civil Appeals of Texas, Houston.
March 22, 1962.
Rehearing Denied April 12, 1962.
*188 Al Crystal & The Kempers, Houston, T. M. Kemper, Houston, of counsel, for appellant.
Bryan & Patton, Julietta Jarvis, Houston, for appellee.
WERLEIN, Justice.
This suit was brought by appellant on an insurance policy issued by appellee, to recover loss resulting from fire damage to her home at 2510 Calumet Street, Houston, Texas, on September 14, 1958. On December 17, 1958 appellant entered into an appraisal agreement with appellee. On or about June 15, 1959, J. W. Northrup, the appraiser appointed by appellee, and the umpire, Wylie W. Vale, without the appraiser appointed by appellant joining therein, made and signed an award for appellant in the sum of $7,201.92. Prior to the date of the award, but apparently with knowledge of what it would be, appellant filed suit on June 1, 1959, to recover the loss, alleging that it exceeded the policy coverage of $20,000.00.
After hearing appellant's case and the testimony of the umpire, the trial court discharged the jury and rendered judgment for appellee in the amount of the award. Appellant asserts that the court erred in doing so because as a matter of law the award in question was invalid and did not conform to the provisions of the policy, and also because fact issues were raised with respect to the award which, if found favorably to appellant, would justify setting it aside.
The memorandum of appraisal, Defendant's Exhibit No. 1, shows that on December 17, 1958 appellant and appellee respectively appointed E. W. Osterloh and J. W. Northrup to appraise the actual cash value of the property and the amount of loss directly caused by the fire. On March 5, 1959 said appraisers committed themselves under oath to make an appraisal and award, and they appointed Wylie W. Vale as umpire to settle any matters of difference between them. On the same day said umpire accepted the appointment and stated under oath that he would act with strict impartiality in all matters of difference submitted to him and would make a true, just and conscientious award.
The policy provides:
"The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with this Company, shall determine the amount of actual cash value and loss."
Appellant contends that the award of June 15, 1959 is invalid because made by one of the appointed appraisers and the umpire without any showing that there was a failure of the appraisers to agree or that they had any differences which were submitted to the umpire, and because without such disagreement and differences existing the umpire had no authority to act.
Neither Mr. Osterloh nor Mr. Northrup was called to testify. The record is silent as to whether they ever met and discussed the value and damage, or whether there were any differences between them or whether they failed to agree, or whether or not Mr. Osterloh ever appraised the property, or refused to act. There is no evidence of his activities after the time he accepted the responsibility of acting as an appraiser.
Mr. Vale, called as a witness by appellee, testified that he personally inspected the premises and thereafter met with Mr. Northrup and they arrived at the actual cash value of the house and the pine trees before the fire; that Northrup first talked to him about being an appraiser in the case; that he personally went to the premises at least three times; that he increased Northrup's figure as to damages to the shingle roof; that he and Northrup resolved whatever differences there were and *189 arrived at the total figure of $7,201.92; that he did not know Mr. Osterloh; that Osterloh was not present at any time that he and Northrup were together, nor when he and Northrup figured out $7,201.92, and that Osterloh and Northrup never did at any time submit any differences to him.
He further testified as follows:
"Q What difference did you resolve as the umpire between Mr. Osterloh and Mr. Northrup?
"A Mr. Osterloh never did submit it to me.
"Q You didn't resolve any differences?
"A No, sir.
"Q So you and Northrup got together between the two of you and made the appraisal that is, this $7,201.92?
"A Mr. Northrup made one and after checking it concurred that was our best knowledge.
* * * * * *
"Q Well, in effect, other than the few items you added you merely endorsed Northrup's appraisal, isn't that the effect
"A In effect, yes, sir."
On cross-examination appellant testified that she did not know Mr. Osterloh or Mr. Northrup or Mr. Vale and never talked to Osterloh; that she made no request of Northrup or of Vale to appear before them, and as far as she knew, her lawyer did not do so; and that her only complaint was that the building could not be restored for the amount of the award.
There is authority to the effect that if one of the appraisers resigns or deliberately refuses to act, the other appraiser and the umpire may make an award. In re Appointment of Falloon, 1958, 161 Cal. App. 2d 522, 327 P.2d 18; German Ins. Co. v. Hazard Bank, 31 Ky.Law Rep. 1126, 104 S.W. 725. See also 6 Appleman on Insurance Law & Practice, p. 366, where it is stated: "If one appraiser or arbitrator resigns, withdraws, or refuses to act further, it has been held that the other one and the umpire may complete the proceeding and make a valid award." In the instant case there is nothing to show that Osterloh resigned or deliberately refused to act as an appraiser. Therefore, we cannot sustain the award on such ground. True, the award is not invalid on its face since it complies with the policy requirement to the extent of being an award in writing "of any two".
The general rule is that every presumption will be indulged in favor of an award unless contradicted by proof. Providence Washington Ins. Co. v. Farmers Elevator Co., Tex.Civ.App., 141 S.W.2d 1024; Robbs v. Woolfolk, Tex.Civ.App., 224 S.W. 232; Green v. Franklin, 1 Tex. 497. Appellant asserts that there is evidence which destroys such presumption in this case and which invalidates the award as a matter of law. This contention requires an analysis of the evidence.
There is no evidence as to whether Osterloh and Northrup did or did not fail to agree as to the loss. If they did not fail to agree, there was nothing to submit to the umpire and nothing upon which he could act. If they did fail to agree, then they were required by the policy to submit their differences only to the umpire. There is nothing in the policy giving the umpire the right to act in the absence of differences between the appraisers. The record is silent as to whether there were any differences. The umpire testified that no differences were submitted to him and that he resolved no differences between the appraisers. There is no evidence to the contrary. Since the umpire's power to act is conditioned upon a disagreement between the appraisers and the submission of their differences only to him, we are of the opinion that the award, which was signed by only one appraiser and *190 the umpire who had no authority to act, is invalid. See 6 Appleman on Insurance Law & Practice, p. 368, where it is stated:
"Where the policy provided that the appraisers should submit their differences to an umpire, it was held that the signature of the umpire was without validity unless and until the two appraisers failed to agree. * * * An umpire may act to settle differences between appraisers respecting the amount of a loss, when such differences become known to him. But an umpire, appointed to decide on matters of difference only, has no authority to pass on matters concerning which there was no difference between the appraisers. The function of an umpire who is to act in matters of difference only is not to coincide with one or the other of the appraisers, but he is to make his award independently of such estimates. * * But where the umpire did not confer with the insured's appraiser, the appraisement was held to be ineffective."
An appraiser's acts in excess of the authority conferred upon him by the appraisal agreement is not binding on the parties. North River Ins. Co. v. Adams, Tex.Civ.App., 300 S.W. 185, writ ref.; Reliance Ins. Co. v. Bowen, Tex.Civ.App., 54 S.W.2d 597. It has also been held that an award which is not made substantially in compliance with the requirements of the policy will not be sustained. Reliance Ins. Co. v. Bowen, supra; Carr v. American Ins. Co., D.C., 152 F. Supp. 700; Continental Ins. Co. v. Garrett, 6 Cir., 125 F. 589.
In her third point appellant asserts that the court erred in taking the case from the jury and rendering judgment for appellee, because fact issues were raised which should have been submitted to the jury. Appellant alleged in her petition that she is not bound by the purported award because the arbitration and proceedings therein were not fairly and impartially conducted, because appellee's appraiser and the umpire entered into an award which is so grossly inadequate and unfair as to clearly evidence bad faith or mistake and because the award was the result of bias, carelessness or an improper investigation.
In determining whether it was proper for the court to take the case from the jury and render judgment, we must view the evidence in the light most favorable to appellant, the losing party. White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295. We must indulge against the action of the court every inference that may properly be drawn from the evidence and if the record reflects any testimony of probative force in favor of the losing party, we must hold the court's action improper. Texas Employers Ins. Ass'n v. Boecker, Tex.Civ.App., 53 S.W.2d 327, error ref.; Clutter v. Wisconsin Texas Oil Company, Tex.Civ.App., 233 S.W. 322, error ref.
The evidence shows that Mr. Northrup called the umpire, Mr. Vale, and that the two got together and arrived at the figure of $7,201.92; that Vale didn't know Osterloh and that Osterloh was not present at any time that the umpire and Northrup were together, and was not present when the award was made; that Osterloh and Northrup did not at any time submit any differences to the umpire, and the umpire resolved no differences between them; that the umpire checked Northrup's appraisal and concurred in it after increasing Northrup's figure on damages to the shingle roof; and that in effect the umpire merely checked and endorsed Northrup's appraisal, other than a few items, without talking to Osterloh or having any consultation with him, or having the benefit of any appraisal that might have been made by Osterloh.
The evidence further shows that both Northrup and Vale are architects and that Vale has not been in the construction business since 1952; that Northrup approached Vale about being an appraiser in this case and that Vale had known Northrup a great number of years; that on October 5, 1958 appellant's witness, Ray O. Wilson, a building contractor, who was requested to make *191 a bid, made an appraisal and estimate of the cost of repairing the building; that Wilson's estimate made in the hope of getting the job, was $14,318.59 after deducting from his original estimate certain excluded items; that appellant's witness Carpenter would have testified, as shown by appellant's bill of exceptions, that his estimated cost of making repairs to the building in 1958, based on the items listed in an appraisal made in January or February, 1959, showing in detail what work had to be done, was approximately $16,380.00.
The great disparity between the amount of the award and the cost of making repairs to the building as testified to by appellant's witnesses, might not in itself be sufficient to warrant setting aside the award. Gulf Insurance Co. of Dallas v. Pappas, Tex.Civ. App., 73 S.W.2d 145; Camden Fire Insurance Ass'n v. McCain, Tex.Civ.App., 85 S.W.2d 270, writ dism.; Pacific American Fire Underwriters of Liverpool & London & Globe Ins. Co. v. Atkinson, Tex.Civ.App., 83 S.W.2d 441. Such great disparity, however, is a circumstance that may be considered in connection with the other evidence showing that the umpire never consulted with appellant's appraiser at any time, and that he and Northrup apparently wholly ignored such appraiser and acted independently of him; that the umpire in effect merely checked and endorsed Northrup's appraisal, other than for a few items, in arriving at the figure of $7,201.92; that no differences between the appraisers were submitted to the umpire as required by the policy, and that the umpire did not resolve any differences between the appraisers.
We are not called upon to decide whether such evidence would be sufficient to support findings that the proceedings were not fairly and impartially conducted or that the award was the result of bias, bad faith or mistake. We merely hold that such evidence is of some probative force and raises fact issues which should have been submitted to the jury with respect thereto.
In view of our holding, we think it unnecessary to discuss appellant's other points, but we shall do so briefly since some of the questions raised by appellant may arise upon another trial. We do not agree with appellant that the award was not properly itemized. The house and the trees are separately listed and the actual cash value and amount of loss to each of such items are separately shown. Nor do we think appellee's pleading can be construed as a judicial admission of the invalidity of the award. Appellee's plea in abatement was overruled and the allegations in its subsequent pleadings are in the alternative. A defendant has the right to plead inconsistent defenses. Houston, E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S.W. 531, 537. Dallas Ry. & Terminal Co. v. Hendricks, 1942, 140 Tex. 93, 166 S.W.2d 116; 2 McDonald, Texas Civil Practice, p. 611, § 7.01.
The exclusion of some of appellant's pictures showing damage to the building might not constitute reversible error, since the damage to the building was testified to in great detail and some of the pictures showing damage were admitted. Rule 434, Texas Rules of Civil Procedure. Some pictures were excluded because the witness testified that there was more damage inside the house at the time the pictures were taken than immediately after the fire. We do not consider it necessary to show the date the pictures were taken of the witness having knowledge of the facts or conditions testifies that the pictures correctly or substantially reflect such facts or conditions, and points out and explains any changes that may have occurred. Dofner v. Branard, Tex.Civ.App., 236 S.W.2d 544, writ ref., n. r. e.; Texas Employers Ins. Ass'n v. Agan, Tex.Civ.App., 252 S.W.2d 743, writ ref.; Taylor, B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868; Dallas Ry. & Terminal Co. v. Durkee, Tex.Civ.App., 193 S.W.2d 222, writ ref.; n. r. e.; Davis v. Illinois Terminal Railroad Co., Mo., 307 S.W.2d 395.
*192 Appellant complains that the court erred in refusing to permit her witnesses to testify as to the reasonable cost of repairs and replacements to her residence within one or two years after the date of the fire. The policy provides:
"* * * liability hereunder shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss * * *."
Upon another trial the witnesses should be allowed to testify as to what it would cost to repair or replace the property at different times after the loss, unless the time is too remote as a matter of law. We cannot say that one or even two years after the loss would be unreasonable as a matter of law. Ordinarily what is "reasonable" is a question of fact.
With evidence as to the cost of repairs at the time Mr. Wilson made his appraisal and estimate on or about October 5, 1958 and evidence as to what such cost would be at subsequent dates not too remote as a matter of law, due to increased cost of repairs, the jury would be in a position to determine what the cost of the repairs and replacements would be if made within a reasonable time after the loss, deducting or excluding therefrom, as provided in the policy, loss caused directly or indirectly by neglect of the insured to use all reasonable means to save and preserve the property at and after the loss. See Aycock v. Republic Insurance Co., La.App.1959, 116 So. 2d 317, 74 A.L.R. 2d 1267, and annotation.
The policy provides:
"The amount of loss for which this Company may be liable shall be payable 60 days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided."
We construe this provision to mean that if the award is found to be valid, payment would not be due until 60 days after the award was filed with the company, and in such case interest would begin to run at such time and continue until the award is paid or payment is tendered. If the award is invalid as a matter of law or if the jury should find against the award, then interest would begin to run on the amount of the loss 60 days after proof of loss was received by the company. Pennsylvania Fire Ins. Co. v. W. T. Waggoner Estate, Tex.Com.App., 1931, 39 S.W.2d 593, 596, and authorities cited.
Judgment reversed and cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626544/ | 676 F. Supp. 416 (1987)
Alfred BISHOP, Edward Franco, Petitioners,
v.
John J. MORAN, Director of Corrections for the State of Rhode Island, Kenneth R. Walker, Chairperson, Rhode Island Parole Board, Respondents.
Civ. A. No. 4794 P.
United States District Court, D. Rhode Island.
December 2, 1987.
*417 John Cicilline, Providence, R.I., for petitioners.
David Dugan, Asst. Atty. Gen. of R.I., Providence, R.I., George Cappello, R.I. Dept. of Corrections, Cranston, R.I., for respondents.
OPINION AND ORDER
PETTINE, Senior District Judge.
This case presents the question of whether the Rhode Island Parole Board comes in conflict with the Fourteenth Amendment's guaranty of equal protection of the laws when it provides that only in-state inmates shall attend discretionary parole eligibility review hearings.
INTRODUCTION
Like similar agencies in other states, the Rhode Island Corrections Department is authorized by statute to transfer inmates to state and federal facilities located in other states. Some transfers are requested by the inmates. Others are ordered by the Department in response to security risks, overcrowding, or simply as a result of a determination that the rehabilitative needs of a particular inmate would be better met by another facility.
Alfred Bishop was convicted of murder in 1974. He was sentenced to life imprisonment. After spending four years in a Rhode Island facility, Mr. Bishop was transferred to the custody of the federal prison system and is currently housed in Lewisburg, Pennsylvania. Under Rhode Island law, Mr. Bishop became eligible for parole ten years after conviction. After a hearing held on November 1, 1984, at which Mr. Bishop was present, the Rhode Island Parole Board denied parole.
*418 On December 2, 1986, Mr. Bishop, through his attorney, requested that he be transported to Rhode Island for the purpose of making a personal appearance before the Parole Board. That request was denied by Kenneth Walker, Chairman of the Parole Board. Mr. Bishop's attorney then requested, and Mr. Walker provided, a cost estimate of transporting Mr. Bishop from Lewisburg to Rhode Island. Apparently, Mr. Walker had determined that if Mr. Bishop could pay the costs, estimated at approximately fifteen hundred dollars, he could attend the hearing.
Mr. Bishop's attorney then informed Mr. Walker that Mr. Bishop could not possibly pay the estimated amount and requested that the Department of Corrections "waive those fees," that is, pay for transporting Mr. Bishop. Mr. Walker denied the request, stating, without elaboration, "I cannot in all fairness to the Department of Corrections ask them to waive a policy that has been in effect since before I became a member of the Parole Board."
Mr. Bishop then filed the instant action on April 9, 1987. He alleges that a decision rendered by this court in 1973, Gomes v. Travisono, 353 F. Supp. 457 (D.R.I.1973), provides that all inmates transferred out of state must be returned for all parole hearings and that Mr. Walker, by refusing to have him brought before the Parole Board, is in contempt of that order. He further argues that because in-state prisoners are routinely brought before the Board for identical review hearings he is being denied the equal protection of the laws as guaranteed by the fourteenth amendment of the United States Constitution.
Mr. Bishop's action was joined on June 5, 1987 by Edward Franco. Mr. Franco was convicted of assault with a deadly weapon and sentenced to a term of seven years imprisonment. Mr. Franco was transferred to the custody of the federal prison system in 1985 and is currently housed in Lewisburg, Pennsylvania, along with Mr. Bishop. A hearing was held by the Parole Board regarding Mr. Franco's parole eligibility on March 5, 1987. Mr. Franco was not present. He now argues that the March 5 hearing violated the Gomes order and also denied him the equal protection of the laws.
On October 22, 1987 this Court conducted a hearing to resolve some of the factual discrepencies presented in the parties' pleadings. Kenneth C. Pederzani, Executive Secretary of the Parole Board, testified regarding the policy of the Parole Board in reviewing the parole status of out-of-state inmates. Mr. Pederzani testified that there are two types of parole hearings. The first type, the "initial eligibility hearing," is held once the inmate first becomes eligible for parole.[1] Both in-state and out-of-state inmates attend these hearings. After this initial hearing, the Board's policy is to review an inmate's eligibility every six months to a year.[2] These are considered "discretionary hearings." It is the Board's policy that while in-state inmates are brought before it for these proceedings, hearings concerning out-of-state inmates are conducted in absentia.
Mr. Pederzani testified that in-state inmates are permitted to make presentations on their behalf at these discretionary hearings. The Board is provided an opportunity to question the inmate, and at the end of the hearing the inmate is permitted to ask questions or to make a statement; "he has a chance," as Mr. Pederzani put it, "to express himself in any way."
The eligibility of out-of-state inmates is determined largely from reports submitted by the institution in which the inmate is housed. Inmates can, however, have letters submitted on their behalf to the Board *419 and have representatives, such as clergy and lawyers, appear before the Board.
DISCUSSION
Plaintiffs' argument that the Department of Corrections' refusal to return them for parole hearings is in conflict with this court's order in Gomes v. Travisono, 353 F. Supp. 457 (D.R.I.1973), compels this court to revisit that case. In Gomes, this court held that transferring inmates out of the state of Rhode Island entailed serious deprivations to the inmate which "require the imposition of due process protections." Id. at 466. Accordingly, the Rhode Island Department of Corrections was enjoined from transferring inmates out of state unless it followed certain procedures, including hearings and subsequent periodic evaluations of the transferee's status. Id. at 472. Among these procedures, the Department was to adopt written regulations which guaranteed, among other things, "the return of a transferred inmate to Rhode Island for all hearings before the Parole Board which will consider the subject of his parole." Id. at 472. As this court stated:
Transfers have a detrimental effect on the inmate's chances of being released on parole. In order to minimize these detriments, defendants are required to promulgate written regulations providing for the return of transferred inmates to the A.C.I. for their parole hearings. The presence of the inmate at his parole hearing is important to his chances of release, and the transferred inmate should not be deprived of the opportunity to appear and speak for himself.
Id. at 469.
The First Circuit Court of Appeals reversed in part and affirmed in part the decision in Gomes. While concluding that "some due process is mandated in all transfer cases," it felt "constrained to paint with a smaller brush" in determining which procedures were actually required. Gomes v. Travisono, 490 F.2d 1209, 1214 (1st Cir. 1973). Although it rejected some of the procedures required by this court, the first circuit specifically stated that it did not "take issue with the requirements of ... regulations governing the return of transferred inmates to parole board hearings." Id. at 1216.
The case then went up to the Supreme Court, which vacated, without opinion, the circuit court's order and remanded for reconsideration in light of its recent pronouncements of the requirements of due process in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Travisono v. Gomes, 418 U.S. 909, 94 S. Ct. 3200, 41 L. Ed. 2d 1155 (1974). After reconsidering the case, the first circuit modified some of its earlier requirements but did not express any views on the subject of returning transferees for parole. It nonetheless stated that "our holding in Gomes is affirmed as modified." 510 F.2d 537, 542 (1st Cir.1974).
Were the Gomes cases the only evidence that this court could examine, it would appear that that part of the district court order requiring the return of inmates for parole hearings remains intact. This court is convinced, however, that subsequent cases by the Supreme Court and the first circuit calls into question its continued vitality.
Gomes was one of the first cases to consider the constitutional implications of interstate transfers. Its holding was premised upon the belief that "the deprivations suffered by the transferred inmates require the imposition of due process protections." 353 F.Supp. at 466. That belief, in turn, was founded upon the then-prevailing conception of due process which focused on whether the transfer process constituted "grievous loss" to the inmate. 490 F.2d at 1212.
In two cases decided several years after Gomes, Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), the Supreme Court expressly rejected the "grievous loss" approach to questions of procedural due process in prison transfers. The Court held that unless the inmate can point to some right or justifiable expectation rooted in state law, "no Due Process Clause liberty interest of a duly convicted *420 inmate is infringed when he is transferred from one prison to another within the state, whether with or without a hearing." Montanye, 427 U.S. at 242, 96 S.Ct. at 2547.
Although the Court in those cases concerned itself with intrastate transfers, the first circuit subsequently held that the teachings of Montanye and Meachum apply to interstate transfers as well. Sisbarro v. Warden, Mass. State Penitentiary, 592 F.2d 1, 3 (1st Cir.1979). As the court stated:
[W]e can see no reasoned basis on which to revert to the Gomes analysis ... when the prisoner has been transferred interstate to another state or federal institution, even though Gomes involved such a transfer. It may often be true that a prisoner will be moved a longer distance when he is transferred interstate rather than intrastate, resulting in substantial interference with communication and visitation, and that his access to legal materials and lawyers of the state in which he was convicted may be diminished. Greater disadvantages thus may accompany an interstate transfer. But the Court has held that an increase in burdensome conditions does not in itself implicate the due process clause; "the determining factor is the nature of the interest involved rather than its weight."
Id. (quoting Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538).
This court therefore cannot dispose of the issue before it simply by inserting a citation to Gomes. That case, notwithstanding its assault in the appellate process, appears to have been cut off at the knees by Sisbarro and Meachum. In fact, for all this court can see, Sisbarro overruled Gomes and its progeny sub silentio. If transferred inmates do possess a right to be returned for parole hearings, it must be rooted in something far more enduring.[3]
Equal Protection
As a state agency, the Parole Board's policies and decisions are subject to the commands of the Equal Protection Clause of the Fourteenth Amendment. Avery v. Midland County, Texas, 390 U.S. 474, 475-481, 88 S. Ct. 1114, 1115-1118, 20 L. Ed. 2d 45 (1968). The Board cannot act arbitrarily and inconsistently, treating similar inmates differently for apparently no reason. Melvin v. Petrovsky, 720 F.2d 9, 12 (8th Cir. 1983). It has a constitutional obligation to ensure that all inmates who are similarly situated be similarly treated. Hluchan v. Fauver, 480 F. Supp. 103, 109 (D.N.J.1979).
The plaintiffs do not suggest to this court that the right to attend all discretionary review proceedings is independently founded on the right to due process. Rather, they contend that because in-state inmates are routinely brought before the Board for a hearing at these proceedings as a matter of policy, denying them similar treatment denies them the equal protection of the laws.
It is, of course, not required under equal protection doctrine that the claimed right be otherwise guaranteed by the constitution. French v. Heyne, 547 F.2d 994, 997 (7th Cir.1976). It may well be that due process does not require an inmate to be present at these discretionary proceedings. That question is not before this court.[4] But that is not to say that a state that chooses to provide for hearings may do so free of the strictures of equal protection. See Griffin v. Illinois, 351 U.S. 12, 18, 76 *421 S.Ct. 585, 590, 100 L. Ed. 891 (1956). Even a gratuitous benefit, if provided by the state, must be provided equally. Zobel v. Williams, 457 U.S. 55, 60, 102 S. Ct. 2309, 2312-13, 72 L. Ed. 2d 672 (1983).
Of course, not every distinction drawn by the state or in this case the Parole Board is automatically invalid under the Equal Protection Clause. The distinction is permissible if it "rest[s] upon some ground of difference having a fair and substantial relation" to the permissible objectives of the state. Jamieson v. Robinson, 641 F.2d 138, 142 (3d Cir.1981). Put another way, the difference in treatment must "rationally further a legitimate state purpose." Zobel, 457 U.S. at 60, 102 S.Ct. at 2313. Rationality, in turn, "must be measured by the ability vel non of the classification to serve the purpose intended by the ... rule." Oaks v. District Court of the State of Rhode Island, 631 F. Supp. 538, 545 (D.R.I.1986).
Before turning to the Parole Board's justifications for the different treatment, a few preliminary matters must be addressed. First, the equal treatment guaranteed by the Equal Protection Clause is a comparative right; that is, one's entitlement to something he does not have depends in large measure upon whether he stands in a position similar to one who already receives it. See generally Simons, Equality as a Comparative Right, 65 B.U. L.Rev. 387 (1985). The constitution "does not require things which are different in fact to be treated as though they were the same." Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S. Ct. 1497, 1499, 16 L. Ed. 2d 577 (1966). It "requires only that persons similarly situated receive like treatment at the hands of the sovereign." R.I. Ch. of Nat. W. Pol. C. v. R.I. Lottery, 609 F. Supp. 1403, 1417 (D.R.I.1985).
Inmates like Alfred Bishop and Edward Franco are transferred to prisons in other states pursuant to interstate prison transfer compacts. See, e.g., R.I.G.L. § 13-11-2 (Miche 1982) ("New England Interstate Corrections Compact" providing for transfers of inmates to states in New England); id. at § 13-12-1 (providing for transfers of inmates to federal prisons). The Compacts are designed to permit Rhode Island to transfer inmates to alleviate over-crowding and security risks, to effectuate discipline, and to otherwise intelligently utilize the resources of other penal systems to respond to the myriad and diverse needs of rehabilitation and confinement. Sisbarro, 592 F.2d at 3-4; Rebideau v. Stoneman, 398 F. Supp. 805, 811 (D.Vt.1975). But the mere fact that an inmate is being housed in a different facility does not mean that he is no longer a Rhode Island state prisoner subject to the jurisdiction of the Rhode Island Department of Corrections along with in-state prisoners. See U.S. v. Franzen, 669 F.2d 433, 435 & n. 2 (7th Cir.1982); Battista v. Kenton, 312 F.2d 167, 168 (2d Cir.1963). Indeed, the fact that both in-state and out-of-state inmates are reviewed for parole by the Rhode Island Parole Board vividly illustrates that both are similarly situated for purposes of equal protection.
Another preliminary matter involves determining whether out-of-state inmates are actually being denied anything. The state apparently believes that they are not. It suggests that the only thing the state is providing is an opportunity for periodic review of parole eligibility. This, it argues, is being provided equally to both in-state and out-of-state inmates, albeit in different forms. The state therefore concludes that the out-of-state inmates are receiving like treatment consistent with equal protection because their eligibility is reviewed in a manner that is equivalent to proceedings involving a personal appearance.
Only willful blindness could overlook the difference that a personal appearance could make in a parole review determination. In fact, this court is not forced to imagine the effect a personal appearance could have; Mr. Pederzani, the Executive Secretary of the Parole Board, testified quite ably on that score. After describing the numerous opportunities to speak on his behalf permitted the instate inmate, Mr. Pederzani stated quite emphatically that the personal statements "are weighed by the Board in a significant manner." He added that "it *422 could be very helpful or it could hurt him."[5]
Moreover, the importance to the inmate in terms of psychological gratification and personal rehabilitative needs cannot be lightly ignored. "The parole-granting process is ... the most critical concern for the vast majority of all prisoners since it constitutes, in effect, a resentencing." D. Rudovsky, A. Bronstein, & E. Koren, The Rights of Prisoners, 119 (1983). Appearing before the Board to ask questions and to speak on his behalf inspires the inmate, not unjustifiably, to believe that he is actively participating in critical decisions concerning his rehabilitation and future confinement, that he is not just a name on a piece of shuffled paper.
This court therefore concludes that out-of-state inmates are being denied the benefit of a critical procedure freely afforded to in-state inmates in the form of a meaningful opportunity to appear before the Board and speak on their behalf. The Board's justification for this difference in treatment must now be examined.
The Board appears to offer two justifications for treating out-of-state inmates differently. This court must determine whether they are legitimate state objectives and whether the different treatment rationally furthers these objectives. Western and Southern Life Ins. Co. v. State Bd. of Equalization of Calif., 451 U.S. 648, 669, 101 S. Ct. 2070, 2083-84, 68 L. Ed. 2d 514 (1981).
First, the Board contends that "historically," inmates have been transferred out of state because they are considered by the Department of Corrections to be "behavioural problems." In many cases these inmates, according to the Board, are dangerous. Transporting them to and from Rhode Island once or twice a year presents dangers to the public.
It is certainly clear that it is a legitimate objective of the Department of Corrections to ensure that those within its keep do not harm the public. What is less clear, however, is that denying hearings to all out-of-state inmates is a rational means of furthering that objective.
As an initial matter, this court notes that the Board's concern with security is less than clearly revealed in the circumstances of this case. Mr. Bishop was informed that he could appear before the Board if he paid the costs of transportation. It is unclear to this court how legitimate concerns for security are at all altered depending upon who foots the bill.
What is most troubling about the Board's policy, however, is that not only is it premised upon an unfounded generalization about out-of-state inmates, but it is also entirely inconsistent with the Board's express policy of periodically reviewing the eligibility of all inmates after they initially become eligible for parole.
It may be true that some inmates are transferred out of state because they are "behavioural problems." But many are not. Some are transferred because other facilities are better equipped to meet their particular rehabilitative requirements. Some are transferred to alleviate over-crowding. Some request the transfer. Some, in fact, as the State's brief indicates, are transferred for their own safety, to protect them from inmates within the Rhode Island facility. In short, not all transferred inmates are dangerous, and while this court recognizes that distinctions by the state need not be drawn with absolute precision, Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 273, 99 S. Ct. 2282, 2293, 60 L. Ed. 2d 870 (1979), a distinction based upon an unsupportable assumption about a particular group conflicts with the guarantees of equal protection. See Kirchberg v. Feenstra, 609 F.2d 727, 733 (5th Cir.1979), aff'd 450 U.S. 455, 101 S. Ct. 1195, 67 L. Ed. 2d 428 (1980).
Moreover, closer examination of the Board's justification reveals a more profound deficiency. The Board argues that out-of-state inmates are too dangerous to *423 be transported to parole hearings. Yet the very purpose of this particular parole review proceedings is to determine whether the inmates has been suitably reformed and is ready and able to reintegrate into society. Morrisey v. Brewer, 408 U.S. 471, 478-89, 92 S. Ct. 2593, 2598-04, 33 L. Ed. 2d 484 (1972). This court is unable to comprehend how the Board can make an initial determination that an inmate is too dangerous to attend a proceeding that is specially created for the purpose of determining whether in fact the inmate can safely return to the company of freemen. The Board has chosen to consider for possible release all inmates every six months to one year after the inmate first becomes eligible for parole. That is the Board's policy. It must be inferred from this that the Board realistically considers these inmates to be possible candidates. Yet implicit in the Board's justification for excluding out-of-state inmates is the presumption that they are not possible candidates. The Board's justification, therefore, is entirely inconsistent with its express policy of periodic review.
This court therefore concludes that denying all out-of-state inmates an opportunity to appear at their discretionary review hearings is not a rational way to further the state's interest in security.
The Board's second justification is a simple one: cost. It argues that there are currently twenty-nine inmates in facilities outside Rhode Island and to transport these inmates once or twice a year would be prohibitively expensive. There can be no question that the State saves money by not transporting out-of-state inmates to appear before the Parole Board. But saving money never justifies a difference in treatment; it may motivate it, but never justify it. Most, if not all, distinctions drawn by the state are compelled because the state's resources are not inexhaustible. Some people receive a particular benefit or treatment and others do not. But the state must provide a principled justification to explain why some win and some lose, to explain why Group A may tap the state's limited coffers and Group B may not. Otherwise, a state would be permitted to distribute its resources arbitrarily and inconsistently, claiming simply that there is just not enough to be fair.
This court also notes that the state's predicament is not as bleak as it portrays. Of the twenty-nine out-of-state inmates, approximately one-third are involuntary transfers. This court sees a principled distinction between an inmate who voluntarily chooses to serve his sentence in a distant prison and one who is compelled to move, like the plaintiffs in this case, to suit the needs of the State Corrections Department. Therefore, any rule this court fashions today will involve only involuntary transfers.
For the foregoing reasons, this court holds that denying out-of-state inmates a personal appearance before the Parole Board in discretionary review proceedings when in-state inmates are routinely permitted to appear violates the Equal Protection Clause of the Fourteenth Amendment. This ruling applies prospectively, so that for all discretionary review proceedings occurring after this date in which the out-of-state inmate's parole eligibility is being considered, that inmate must be transported at state expense to the facility in which the Parole Board sits and be permitted the same opportunity to speak on his behalf that is presently being afforded in-state inmates.
NOTES
[1] The inmate's initial eligibility is determined by statute. An inmate who was not sentenced to life imprisonment becomes eligible for parole after serving one-third of his term. R.I.G.L. § 13-3-9 (Miche 1981). Inmates like Mr. Bishop who have been given life sentences are initially eligible ten years after conviction. Id. at § 13-8-13 (Supp.1986).
[2] Mr. Pederzani testified that the discrepancy in the review periods is motivated by the Board's belief that unlikely candidates should be reviewed less often to avoid discouragement caused by frequent denials.
[3] Other courts have suggested that Gomes is no longer controlling authority. In Corgain v. Miller, 708 F.2d 1241 (7th Cir.1983), an inmate contesting his transfer urged Gomes on the court. The court stated:
Gomes ... was decided without the benefit of the Supreme Court's Meachum v. Fano analysis, which substantially undermines the Gomes underpinnings. The circuit in which Gomes originated recognized this and has retreated from Gomes, stating that in light of Meachum, the Gomes analysis would no longer be applied to interstate transfers.
Id. at 1253 (citing Sisbarro, 592 F.2d at 3).
[4] In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the Supreme Court held that full adversarial hearings were not required for discretionary review proceedings. But because the Nebraska Parole Board permitted all inmates to attend these review proceedings, the Court did not reach the issue of whether attendance was in fact constitutionally required. See id. at 16 n. 8, 99 S.Ct. at 2108 n. 8.
[5] It is noteworthy that although the State insists that up-to-date reports are provided to the Board by the institutions, the most recent report contained in Mr. Bishop's file was over three years old. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626599/ | 767 So. 2d 485 (2000)
Rodolfo Z. SCHNEER and Diane Schneer, Appellants,
v.
ALLSTATE INDEMNITY COMPANY, Appellee.
No. 3D98-2541.
District Court of Appeal of Florida, Third District.
May 17, 2000.
Opinion on Joint Motion For Dismissal October 18, 2000.
*486 Law Offices of Karen A. Curran and Karen A. Curran, Coral Gables; Hersch & Talisman, P.A. and Patrice A. Talisman, Miami, for appellant.
Angones, Hunter, McClure, Lynch & Williams, P.A. and Christopher J. Lynch, Miami, for appellee.
Before SCHWARTZ, C.J., GREEN and FLETCHER, JJ.
GREEN, J.
The insureds, Rodolfo and Diane Schneer, appeal from a final judgment entered pursuant to an adverse jury verdict on their contractual claim against their homeowners insurer, Allstate Indemnity Co. ("Allstate"). We affirm with directions.
The Schneers were the owners of a home located in Coral Gables when Hurricane Andrew struck south Dade County in August 1992. The Schneers' home as well as its contents were insured under a policy issued by Allstate. This policy valued the home at $347,500 and its contents at $260,625. The policy provided for replacement cost coverage for both the dwelling and personal property contents. The policy also contained the following concealment or fraud provision:
This policy is void if it was obtained by misrepresentation, fraud or concealment of material facts or if you intentionally conceal or misrepresent any material fact or circumstance, before or after loss. We do not cover any other insured person who has concealed or misrepresented any material fact or circumstance, before or after a loss. If it is determined that this policy is void, all premiums paid will be returned to you since there has been no coverage under this policy. (Emphasis in the original).
As a result of the hurricane, the Schneers claimed both dwelling and personal property damages. In May 1993, they submitted a sworn proof of loss to Allstate seeking approximately $116,000 in damages to the house. They also filed a separate sworn proof of loss seeking approximately $67,000 for personal property losses. According to the Schneers, after inspections by some experts, who apparently informed the Schneers that their carpet and furniture could be cleaned or repaired rather than replaced and that an original oil painting would not be considered damaged by water unless stains showed in the backing, the Schneers amended their proof of loss claim for contents damages to $18,000. Allstate initially advanced $3,500 to the Schneers following Hurricane Andrew.
In May 1994, however, Allstate denied both of the Schneers' claims for damages to their home and its contents on the ground that the Schneers had intentionally misrepresented or inflated the amount of loss in their contents proof of loss. The Schneers filed this breach of contract action *487 against Allstate. Allstate answered and counterclaimed for recission and breach of contract based upon the concealment and fraud provision of the policy.
This case proceeded to a jury trial where the parties presented conflicting evidence as to the damage done to the Schneers' home and personal contents by the storm and as to whether the Schneers had intentionally concealed or misrepresented any material fact to Allstate. During the trial, the Schneers unsuccessfully sought to call a William Porter to testify as their expert witness. Mr. Porter had formerly been employed by the Florida Department of Insurance Division of Insurance Fraud, as a special investigator and later as assistant division director/division counsel. In such roles, he investigated and prosecuted criminal insurance fraud schemes and testified in court proceedings, including as an expert.
The Schneers proffered that Mr. Porter would testify as to the general practice of adjusting in the insurance industry; the parameters or guidelines that an insurance fraud adjuster uses in order to make a determination of whether insurance fraud has been committed; and that, in his opinion, this case involved nothing more than an adjusting dispute rather than fraud.[1]*488 The trial court found this testimony to be irrelevant and excluded the same.
The parties stipulated that the jury should first be asked to determine whether the Schneers had intentionally misrepresented any material fact or circumstances in making their contents claim.[2] Over the Schneer's objection, however, the trial court ruled that if the jury answered yes to this question, the Schneers would not be entitled to recover any sums from Allstate for the damage to either their contents or their dwelling.
The jury returned its verdict finding that the Schneers had intentionally misrepresented a material fact or circumstance in submitting their contents claim. Pursuant to its earlier ruling, the trial court entered final judgment in favor of Allstate on the Schneers' claims and found over their objection, that the policy was void and that Allstate was entitled to rescission. The Schneers timely perfected this appeal.
The appellants first assert that the lower court reversibly erred in excluding the proposed testimony of their expert witness. They maintain that Mr. Porter's expert testimony was admissible pursuant to section 90.702, Florida Statutes (1993),[3] where it would have been patently helpful to the jury. Allstate counters that Mr. Porter's proposed testimony was impermissible where it was calculated only to instruct the jury how to decide the ultimate issue in this case (i.e. whether there was fraud) rather than to provide them with evidence for their independent determination. Initially, we note that the admission and scope of such expert testimony rests within the broad discretion of the trial court. See Town of Palm Beach v. Palm Beach County, 460 So. 2d 879, 882 (Fla.1984); Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484, 485 (Fla. 3d DCA 1997).
Under section 90.703 of Florida's Evidence Code, a witness is permitted to testify to an ultimate fact in a case. This statute specifically provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact." § 90.703, Fla. Stat. (1993). However, this rule does not render admissible all opinions on the ultimate issues. "Witnesses will be prevented from expressing their conclusions when the opinion only tells the jury how to decide the case and does not help the jury to determine what occurred."[4]See, e.g., Town of Palm Beach, 460 So.2d at 882 (trial court abused its discretion in permitting petitioner's expert on municipal taxation to repeatedly opine that the challenged services did not provide the requisite real and substantial benefit); Gurganus v. State, 451 So. 2d 817, 823 (Fla.1984) (proper for expert to give testimony regarding the effect of a given quantity of alcohol on defendant's ability to form specific intent; improper for expert to testify whether defendant's actions were premeditated); 3-M Corp.McGhan Medical Reports Div. v. Brown, 475 So. 2d 994, 997 (Fla. 1st DCA 1985) (error to permit expert in products liability case to testify that product was defective); Libby *489 v. State, 540 So. 2d 171, 172 (Fla. 2d DCA 1989) (no error in excluding psychiatrist's opinion "as to whether the defendant committed the lewd acts."); Lamazares v. Valdez, 353 So. 2d 1257 (Fla. 3d DCA 1978) (expert may not testify that the defendant was untruthful and liable to make a mistake or misjudgment in his driving ability).
As previously stated, the initial issue before the jury in this case was whether the Schneers perpetrated a fraud in submitting their contents claim to Allstate. We think that under the aforementioned authority, the trial court correctly excluded Mr. Porter's testimony that no fraud had been committed where it had the effect of advising the jury how to decide this case, rather than assisting it in determining what had occurred. Further, we cannot find that the exclusion of Mr. Porter's remaining proffered testimony regarding the insurance industry's general standards for adjusting claims or guidelines used to determine whether a fraud has been committed was an abuse of discretion. This testimony was of limited probative value on the issue of whether the Schneers had perpetuated a fraud in this case. That is, while such evidence may have been of tangential interest to the jury in this case, it was not necessary for their resolution of the ultimate issue of whether the Schneers had intentionally misrepresented or over-inflated their contents claim. Compare, e.g., Red Carpet Corp. of Panama City Beach v. Calvert Fire Ins. Co., 393 So. 2d 1160 (Fla. 1st DCA 1981) (Exclusion of expert's testimony regarding insurance adjusting, policy provisions, and trade custom in the insurance industry error where the case essentially turned on an interpretation of the parties' rights and obligations under the "Loss of Earnings Endorsements.").
Finally, the Schneers assert that the lower court erred in concluding that their misrepresentations as to their contents claim voided their homeowner's policy in its entirety. They argue that notwithstanding the specific concealment and fraud provision contained in the policy, their structural or dwelling coverage must be deemed severable or divisible from their contents coverage such that a misrepresentation on a claim for coverage under one does not effect the validity of the other. Thus, in the absence of allegations and/or proof of fraud in connection with their claim for dwelling damages, the Schneers maintain that the policy must be deemed valid and enforceable for such damages, since the forfeiture of insurance policies are generally disfavored. See LeMaster v. USAA Life Ins. Co., 922 F. Supp. 581, 585 (M.D.Fla.1996); Boca Raton Community Hosp., Inc. v. Brucker, 695 So. 2d 911, 912 (Fla. 4th DCA 1997).
Courts in various jurisdictions have varied greatly on the issue of the divisibility of an insurance policy which covers different classes of property and where there has been a breach of condition as to one class which does not involve another class.[5] Florida has long aligned itself with the majority of jurisdictions which recognize the divisibility of an insurance policy but only in the absence of fraud and misrepresentation.[6] In Hartford Fire Ins. Co. v. *490 Hollis, 64 Fla. 8, 59 So. 785 (1912), the Florida Supreme Court enunciated the doctrine thusly when addressing a fire insurance policy:
[I]n the absence of misrepresentations and fraud, where a fire insurance policy covers different classes of property, each of which is separately valued and is insured for a distinct amount, the contract is severable, and a breach of the contract of insurance, that delegates to and directly affects only one of the classes of the property insured, does not invalidate the policy as to the other class of property.
Id. at 786 (emphasis added).
The court later reiterated this principle in National Union Fire Ins. Co. v. Cubberly, 68 Fla. 253, 67 So. 133, 135 (1913). Unfortunately, where there has been fraud or misrepresentation, as in the instant case, we must treat the insurance policy as indivisible and give full force and effect to the forfeiture provision contained in the concealment and fraud provision of the policy. Accord Wong Ken v. State Farm Fire & Cas. Co., 685 So. 2d 1002, 1003 (Fla. 3d DCA 1997) (concluding that "[T]here is no question that the clause which voids coverage if the insured makes an intentional misrepresentation `after a loss'that is, as here, in making a claim is valid and enforceable."). We recognize that this is a harsh result but we are constrained by established supreme court precedent to so hold. We therefore conclude that the Schneers' fraudulent contents claim voided their homeowner's policy with Allstate in its entirety. Pursuant to the terms of the policy, however, the Schneers are entitled to the return of all premiums paid for this policy minus the amount initially advanced to them by Allstate for the hurricane damage as conceded by Allstate on this appeal and we remand this cause for this purpose.
For the foregoing reasons, we affirm the judgment under review but remand with directions.
Affirmed with directions.
SCHWARTZ, Chief Judge (dissenting in part).
I agree that the plaintiffs' proffered expert testimony was properly excluded below. I strongly disagree, however, with the substantive holding that the structure and contents coverages are not severable in the present circumstances.
First, I think the majority is simply wrong in concluding that its holding on this point is required by binding precedent of the Supreme Court of Florida. To the contrary, the only Supreme Court holding on the related point is that "[i]n the absence of misrepresentations and fraud," separate coverages are indeed severable. National Union Fire Ins. Co. v. Cubberly, 68 Fla. 253, 259, 67 So. 133, 134 (1914); Hartford Fire Ins. Co. v. Hollis, 64 Fla. 89, 59 So. 785 (1912); American Reliance Ins. Co. v. Kiet Inv., Inc., 703 So. 2d 1190 (Fla. 3d DCA 1997). Since these statements do not suggest what the result would be if fraud did exist, they cannot be regarded even as achieving the lofty heights of nonbinding dicta, which at least requires some indication of a preferred conclusion (although expressed on an issue which was not presented or was not necessary to the result).
Properly considering the issue, then, as one of first impression in this state, I think, as I broadly (but apparently not broadly enough) hinted in what was clearly dictum in Wong Ken v. State Farm Fire & Casualty Co., 685 So. 2d 1002, 1004, n. 1 (Fla. 3d DCA 1997):
1. Unlike many of the non-severability holdings referred to by the majority, the Allstate policy before us does not expressly provide that a fraudulent claim voids the "entire policy" or "all claims." 44 Am. Jur.2d. Insurance § 1371, at 301 (1982). As a matter of the simple rule of policy interpretation against the carrier, see Stuyvesant Ins. Co. v. Butler, 314 So. 2d 567 (Fla.1975), therefore, structure coverage must be regarded as severable from a *491 contents claim so that the fraud may be attributed only to the latter. Kerr v. State Farm Fire & Casualty Co., 731 F.2d 227 (4th Cir.1984)(applying rule of severability); Claxton v. Fidelity & Guaranty Fire Corp., 179 Miss. 556, 175 So. 210 (1937)(same); Johnson v. South State Ins. Co., 288 S.C. 239, 341 S.E.2d 793 (1986)(same); Tempelis v. Aetna Casualty & Surety Co., 169 Wis. 2d 1, 485 N.W.2d 217 (1992)(same).
2. Because, again in contrast to most of the cited decisions by the majority, which are merely insureds' claims on the policies, this case involves a counterclaim for recission of the entire contract, the $50,000 fraud as to the contents claim should not be considered a material or substantial breach in light of all the amounts involved, so as to justify granting that acknowledgedly harsh remedy. Gittlin Cos., Inc. v. David & Dash, Inc., 390 So. 2d 86, 86 (Fla. 3d DCA 1980); see Cenal v. Jaramillo, 576 So. 2d 418 (Fla. 3d DCA 1991).
The court's decision means that the insureds must returnread "forfeit"all of the sums for which they duly paid premiums and to which they were entitled for their structure claim, including the $3,500 paid by the carrier for the emergency repairs and expenses created by Hurricane Andrewall because very much later, they made an improper claim for entirely different damages. Since there is, and should be, nothing in the law that compels us to reach this patently unjust result,[7] I would not do so.
ON JOINT MOTION FOR DISMISSAL
PER CURIAM.
After this case was set for rehearing en banc of the May 17, 2000 majority decision affirming the judgment below, the parties entered into a stipulation for the settlement of the case and have jointly moved for the entry of an order of dismissal without retaining jurisdiction for the purpose of issuing any further opinions. Upon the observation, which would be self evident in any case, that this disposition implies nothing concerning the en banc court's view of the merits, we exercise our discretion, see State v. Schopp, 653 So. 2d 1016 (Fla.1995), to recognize the stipulation and grant the motion for dismissal of the proceeding. The order setting the cause for argument en banc is vacated.
Appeal dismissed.
NOTES
[1] The relevant portions of the proffer of Porter's testimony is as follows:
THE WITNESS: My name is William Porter, full name, initial L. William Porter.
And although I do hold a doctorate degree, and I appreciate it, I am actually just a lawyer ...
MS. CURRAN [plaintiffs' counsel]: Now, you have looked at those proof of claim forms?
THE WITNESS: Yes, ma'am.
MS. CURRAN: And what other materials have you looked at in regard to this claim?
THE WITNESS: In the course of the last year or so, I've read depositions, deposition transcripts; I have read transcripts of statements given to the insurance carrier under oath; I have read pleadings and papers of record; I've reviewed documents, these documents; and very likely, no doubt, other supporting documentation on this loss ...
MS. CURRAN: Have you also looked at photographs in this case?
THE WITNESS: Yes, ma'am, and engineering reports as well and sets of photographs that were pretty clear to me taken by either side in this case.
MS. CURRAN: Do you remember or do you have anything that reflects what engineering reports you have been furnished?
THE WITNESS: I don't know off the top of my head.
There were two of them, and it seemed clear to me that they were prepared for the opposing viewpoints in this case.
MS. CURRAN: Okay. Fair enough.
Let me put it to you this way. What opinions do you have in this case?
THE WITNESS: My opinion, as based upon my experiences of Fraud Investigator Administrator and Law Enforcement Commander of the Insurance Fraud Unit is that this case is absolutely nothing more than an adjusting dispute over some casualty losses after Hurricane Andrew. And I don'thave not seen, in my opinion any evidence of any fraud whatsoever.
MS. CURRAN: Okay. Okay. Can you give me the parameters, guidelines, or whatever it is that an Insurance Fraud Adjuster uses in order to make a determination of whether or not there is insurance fraud?
THE WITNESS: Well, Florida Statute 817.234 gives us a good place to start, I guess, and that is that any person who, with criminal intent, submits to an insurance carrier information in support of a claim for loss which is a false, misleading, or incomplete statement, they would have fallen into a category, at the very least, at the threshold of possibly having committed a criminal insurance fraud or third degree felony.
A civil fraud, the kind that would be aired in this Courthouse, would be, basically the samethe same parameters with, perhaps, a different standard, and it requires the intentional submission of incomplete, false, and misleading statements to support a claim for insurance benefits.
And, again, I have not seen that in this case.
MS. CURRAN: Assume that Mr. and Mrs. Schneer submitted Exhibit 1, that is, a contents claim, in the amount of $67,000 and attached the attached inventory list.
THE WITNESS: Yes, ma'am.
MS. CURRAN: Assume that later on, they reduced the contents claim by, approximately $40,000.
THE WITNESS: Yes, ma'am.
MS. CURRAN: Is that a fraudulent act?
THE WITNESS: No, ma'am.
MS. CURRAN: Why? Why not?
THE WITNESS: Well I guess at the bottom line, that is why they call it adjusting....
It is not fraud to submit a proof of loss and then await the company to investigate and give its position[.] ...
MS. CURRAN: Okay, I think that's about all I intent to use this witness for.
[2] The parties also stipulated that Allstate's claims for rescission and breach of contract in its counterclaim would be resolved by the court after the jury's verdict.
[3] Section 90.702 provided in relevant part that:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
[4] Charles W. Ehrhardt, Florida Evidence § 703.1 (2000).
[5] See Collins v. USAA Prop. and Cas. Ins. Co., 580 N.W.2d 55 (Minn.Ct.App.1998); Mutual of Enumclaw Ins. Co. v. Cox, 110 Wash.2d 643, 757 P.2d 499 (1988); Home Ins. Co. v. Hardin, 528 S.W.2d 723 (Ky.Ct.App.1975); but see Kerr v. State Farm Fire & Cas. Co., 731 F.2d 227 (4th Cir.1984); Johnson v. South State Ins. Co., 288 S.C. 239, 341 S.E.2d 793 (1986).
[6] See, e.g., Bowman v. Franklin Fire Ins. Co. of the City of Baltimore, 40 Md. 620 (1874); Friesmuth v. Agawam Mut. Fire Ins. Co., 64 Mass. 587 (1852); Plath v. Minnesota Farmers' Mut. Fire Ins. Ass'n, 23 Minn. 479 (Minn. 1877); Henricksen v. Home Ins. Co., 237 Or. 539, 392 P.2d 324 (1964); Moore v. Virginia Fire & Marine Ins. Co., 69 Va. 508, 28 Gratt. 508 (1877); Mosrie v. Automobile Ins. Co. of Hartford, 105 W.Va. 226, 141 S.E. 871 (1928); see also Johnson, 341 S.E.2d at 795 (acknowledging that "[a]n overwhelming majority of jurisdictions hold that any fraud or misrepresentation as to any portion of property under an insurance policy voids the entire policy").
[7] I believe the court's decision on this point may be another example of the process described by Cardozo and referred to in Doctor v. State, 677 So. 2d 1372, 1373-74 (Fla. 3d DCA 1996)(Schwartz, C.J., specially concurring), approved, 683 So. 2d 162 (Fla. 4th DCA 1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626609/ | 169 N.W.2d 259 (1969)
Hazel KLOSTERGAARD and Alma Strunk, Plaintiffs and Respondents,
v.
Burdette PETERSON and Helen Peterson, Defendants and Appellants, and
Minor Peterson, as Executor of the Estate of Niels C. Nielsen, Deceased, Defendant.
No. 10615.
Supreme Court of South Dakota.
July 11, 1969.
*260 John F. Murphy, Donley & Murphy, Elk Point, for defendants and appellants Burdette Peterson and Helen Peterson.
Samuel W. Masten, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiffs and respondents.
Roscoe A. Frieberg, Frieberg & Frieberg, Beresford, for defendant, Minor Peterson, as Executor of Estate of Niels C. Nielsen, Deceased.
RENTTO, Judge.
These plaintiffs are two of the heirs, devisees and legatees of Niels C. Nielsen, deceased, who died testate. In this action they seek to quiet title to funds in two joint bank accounts established by the decedent, a few days before he died, in his name and that of the defendant Burdette Peterson. This joint depositor is his grandnephew but not a beneficiary in his will.
The trial court found that the accounts were created for the convenience of the decedent and concluded that the funds involved were a part of the assets of his estate. Judgment in the amount thereof was entered against the defendants Burdette Peterson and his wife Helen. She was made a defendant because she became a joint depositor with her husband in one of the accounts shortly after decedent's death. They appeal.
The trial court's judgment was based on the holding of this court in Barbour v. First Citizens National Bank of Watertown, 77 S.D. 106, 86 N.W.2d 526. In that case, on the matter of proof we said that while the form of the account was not itself controlling, in the absence of contrary evidence it served as prima facie proof that the account was created for the benefit of the beneficiary depositor. We also said that the burden of proving this was on him. It was in this light that the trial judge viewed and weighed the evidence in arriving at his findings of fact.
While this appeal was pending, our decision in Wagner v. Wagner, S.D., 163 N.W.2d 339, was handed down. In that case we overruled the above mentioned portion of the Barbour decision concerning the burden of proof and in its place adopted the Wisconsin rule. Under this an account opened in joint names raises a rebuttable presumption that the creator of such an account intended the usual rights incident to jointly owned property, such as the right of survivorship to attach to it. The rule provides further that such presumption prevails and is sufficient to support a finding to that effect unless the contrary is shown by evidence that is clear and convincing. In Miles v. Hanten, S.D., 164 N.W.2d 601, we reaffirmed this rule.
*261 When the decisional law upon which a judgment under appeal was based has been changed, we review and decide the issue presented to the trial court in the light of the rule announced in the overruling decision. Wakonda Independent Consolidated School District No. 1 v. McCullough, 63 S.D. 370, 258 N.W. 838; 111 A.L.R. 1342 (III). This we are unable to do in this case because the change in our decisional law with which we are concerned involves a factual determination which must be spelled out of oral testimony presented at the trial. Since it depends on a weighing of testimony its resolution is not for us, but for the trier of facts.
This court had occasion to consider a somewhat similar problem in State ex rel. Hurd v. Blomstrom, 72 S.D. 526, 37 N.W.2d 247. That case is authority for the position that if an issue of fact is involved in a situation such as we have here, it must be redetermined in the trial court before an appellate court can perform its function of review. We there said:
"Regular procedure would require that this case be remanded to the circuit court for a determination of these questions after which they could be reviewed on a second appeal to this court."
However, since the issues there involved were questions of law, and the parties had briefed them, this court, to save time and expense, did not remand the case, but decided such issues. For the reasons stated, we may not do that here.
Accordingly, the case is remanded to the circuit court for a reconsideration of the evidence contained in this record in the light of the appropriate rule of law on the matter of proof announced in our decision in the Wagner case, and the entry of new findings of fact, conclusions of law and judgment.
All the judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626613/ | 356 S.W.2d 312 (1962)
Willie T. MEDLOCK, Appellant,
v.
The STATE of Texas, Appellee.
No. 34490.
Court of Criminal Appeals of Texas.
April 11, 1962.
No attorney for appellant of record on appeal.
Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Presiding Judge.
The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 10 days in jail and a fine of $100.
The arresting officer testified that he followed the Cadillac automobile driven by appellant on a public street; that he had observed many persons who were drunk, and that in his opinion appellant was intoxicated when the Cadillac came to a stop and he arrested the appellant. His conclusion that appellant was intoxicated was based upon the fact that he was unsteady on his feet and talked with a thick tongue and a slur, that he smelled the odor of alcohol upon his breath, and that appellant, who was driving at a speed of approximately 70 miles per hour in a 35 mile per hour speed zone, and was weaving in and out of traffic and across the center line as he was following him, did not have complete control of the automobile or the normal use of his mental and physical faculties.
Appellant testified and offered witnesses who testified that he had consumed only one bottle of beer, and that he was not intoxicated.
The jury resolved the issue against appellant and the evidence is deemed sufficient to sustain the verdict.
The statement of facts is in narrative form, hence no informal bills are presented therein. Bobbitt v. State, 162 Tex. Cr.R. 206, 283 S.W.2d 946; Patterson v. State, 163 Tex. Crim. 482, 293 S.W.2d 656; Owen v. State, Tex.Cr.App., 350 S.W.2d 542.
There are no formal bills of exception.
Objections to the court's charge were overruled, but no exception to the court's ruling is shown, hence the complaints to the charge are not before us. Smith v. State, Tex.Cr.App., 353 S.W.2d 854; Stone v. State, Tex.Cr.App., 346 S.W.2d 323; Hanes v. State, Tex.Cr.App., 341 S.W.2d 428; Smith v. State, 166 Tex. Cr.R. 294, 313 S.W.2d 291; King v. State, 166 Tex. Crim. 231, 312 S.W.2d 501; Kliesing v. State, 165 Tex. Crim. 585, 309 S.W.2d 445; Ayres v. State, 162 Tex. Crim. 586, 288 S.W.2d 511; Eldredge v. State, 162 Tex. Cr.R. 282, 284 S.W.2d 734.
The same is true as to the refusal of a requested charge; there is no exception to the ruling of the court refusing such *313 charge. Smith v. State, Tex.Cr.App., 353 S.W.2d 854; Mosley v. State, Tex.Cr.App., 352 S.W.2d 847; Carpenter v. State, Tex. Cr.App., 345 S.W.2d 412; Kogan v. State, Tex.Cr.App., 341 S.W.2d 925; Perkinson v. State, Tex.Cr.App., 339 S.W.2d 897; Smith v. State, 166 Tex. Crim. 294, 313 S.W.2d 291; Nichols v. State, 165 Tex. Cr.R. 600, 309 S.W.2d 461; Spivey v. State, 144 Tex. Crim. 432, 164 S.W.2d 668; Moore v. State, 163 Tex. Crim. 652, 296 S.W.2d 258; Ritchie v. State, 164 Tex. Crim. 38, 296 S.W.2d 551; Beaty v. State, Tex.Cr.R., 356 S.W.2d 802; and Leonard v. State, Tex. Cr.R., 356 S.W.2d 926.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626606/ | 767 So. 2d 637 (2000)
Mitchel WESTERHEIDE, Appellant,
v.
STATE of Florida, Appellee.
No. 5D99-785.
District Court of Appeal of Florida, Fifth District.
September 29, 2000.
*640 James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, Miami, for Appellee.
SAWAYA, J.
I. Introduction.
The State of Florida, the appellee, instituted commitment proceedings against Mitchel Westerheide, the appellant, pursuant to the "Jimmy Ryce Act,"[1] hereinafter referred to as the Act. The Act establishes *641 procedures for the involuntary civil commitment of sexually violent predators.[2]
The commitment trial commenced on March 1, 1999. The jury returned a verdict finding that the appellant is a sexually violent predator. Pursuant to this verdict, the trial judge entered a final judgment of commitment which committed the appellant to the Department of Children and Families for confinement in a secure facility for control, care, and treatment until such time as the appellant's mental abnormality or personality disorder has so changed that it is safe for him to be at large.
The appellant appeals the final judgment of commitment and, in this case of first impression in Florida, argues that the reversal is warranted for the following reasons: (1) the Act is unconstitutional because it violates the ex post facto, double jeopardy, due process, and equal protection clauses of the United States and Florida Constitutions; (2) the trial court erred by denying the appellant's requested jury instruction defining the statutory terminology "likely to engage in acts of sexual violence"; (3) the trial court erred by allowing the appellee's psychologists to testify that they believed the appellant would reoffend; (4) the trial court erred by allowing speculative testimony suggesting that sex offender probationers are lightly supervised; and (5) the trial court erred by allowing inflammatory testimony and argument. We affirm on all issues and find that the last two issues raised by the appellant are without merit and do not warrant discussion. The other issues will be addressed in separate sections of this opinion after we first discuss the factual background of these proceedings and the general provisions and nature of the Act.
II. Factual Background.
During the commitment trial, the appellee presented testimony from two expert witnesses, Drs. McClaren and Merwin, and from the appellant himself. The appellant presented evidence from one psychologist, Dr. Shaw. The appellee's two expert witnesses diagnosed the appellant as being a sexual sadist and having an antisocial personality disorder. Their diagnoses were based on consideration and review of extensive sources of information including the facts and circumstances surrounding the underlying offense for which the appellant was convicted; personal interviews with the appellant; police reports; reports from the Department of Corrections; correspondence between the appellant and other individuals; videotapes of the sex acts between the appellant and the victim of the underlying criminal offense; interviews with the victim, the appellant's father, and the appellant's friends; the appellant's personal diary; and the tests that were administered by the experts to the appellant. The expert called by the appellant admitted that the appellant is a sexual sadist. Although the appellant's expert admitted that the appellant might also have a personality disorder, he did not specifically diagnose the appellant as having an anti-social personality disorder.
In making their diagnoses, all three experts considered the fact that the appellant had previously been convicted of the offenses of lewd or lascivious assault on a child and sexual performance by a child. Of particular importance to the experts *642 were the underlying facts and circumstances of those prior offenses which disclosed that a sadistic sexual relationship existed between the appellant, who was 22 at the time of the offenses, and the female victim, who was 15 years old at the time. The appellant was convicted of these offenses on September 8, 1995 pursuant to a plea of guilty.
The testimony of the experts and their reports which were introduced into evidence at the commitment trial without objection revealed that the appellant pierced the victim's flesh with fishhooks, bound her during sexual encounters causing the victim pain, and video-taped episodes of sexual intercourse between the appellant and the victim. The appellant would give the victim LSD to help her endure the pain which he inflicted on her for over a six month period and told her to "learn pain." The evidence further revealed that the appellant inflicted pain on the victim by carving things into her skin, cutting her with razor blades, making hash marks on her back, carving the letter "M" on her chest, restraining her in bed with chains, restraining her with hooks in the wrist area which he removed by ripping them out, using a TENS unit to shock the victim, and inserting a knife into the victim's vagina and cutting her.
An investigator with the sheriff's department confirmed that at the time the appellant was arrested for these offenses, physical evidence which corroborated the sadistic nature of his acts was recovered which included: a wooden handled whip with five chains attached and shark hooks on it; a leather mask with a zippered mouth, which the appellant referred to in a letter he wrote as a "bondage mask"; fish hooks; a hollowed-out Bible with more fish hooks in it; and knives.
The experts also considered the appellant's own correspondence and his diary entries in arriving at their diagnoses. The appellee called the appellant as a witness at the trial and questioned him about his correspondence and his diary. The appellant admitted his authorship. One letter included a drawing of a human being with fish hooks in the forehead and neck. Other letters and portions of his diary included statements wherein the appellant: praised "true, organized, pure evil"; indicated how much he really felt hatred, stating that "love makes you weak, hate makes you strong"; and wondered whether he was "pure evil." In another letter, the appellant wrote that "the reason I would probably go to hell is because I have committed great atrocities on my part. Very very very bad things which are not forgivable." In other letters and portions of his diary, he simply stated that he had "no guilt, no sorrow, and no conscience." One of the experts, Dr. Merwin, summarized relevant portions of the appellant's diary when he testified as follows:
There are a couple of elements that relate to sexual sadism, not all of which are necessarily sexual in nature but more sadistic in nature. I can give you some examples of some of his ruminations and thoughts during his adolescence and late adolescence to adulthood based on what he described as a rather painful history of disappointing and humiliating human relationships.
At one point he wrote, if I were to destroy the world I would save the ones I hate most just to watch them suffer. I wouldn't want to die without my revenge, so in conclusion I keep my love and hate alive so it keeps me going.
I dream that it is raining. The rain I see is blood. The blood I see is theirs. They are the ones in pain. The pain is deep. The deeper the pain the stronger the feel. The gratitude runs through my veins. I'm seeing their faces. If they could see mine, I have their eyes, I own their souls. I make the pain deeper. I am their last penance, the judge of life and death. I can save them as they beg for mercy. I do not. Pain is good for the heart, good for the mind, fun time. And goes on in that similar vein. *643 Dr. Merwin further testified that in his conversations with the appellant, the appellant acknowledged the use of physical instruments designed to inflict pain or torture, but the appellant tended to minimize his use of those instruments by suggesting that he used them carefully to avoid inflicting pain on his victim. Dr. Merwin further testified that sexual sadism is a chronic and lasting condition which is progressive and that evidence suggests that sexual sadists experiment with other forms of behavior, typically become more sadistic, and engage in increasingly life-threatening kinds of behavior.
Dr. Shaw, the expert called by the appellant, testified that the appellant was a sexual sadist but did not diagnose him as having an anti-social personality disorder, although in his testimony he did admit that the appellant "may very well have a personality disorder." Dr. Shaw thought supervision through probation was sufficient, but also testified that "in the absence of probation and treatment, in the absence of being required to participate in treatment in the community, I would have recommended civil commitment."
Both of the appellee's experts concluded that the appellant satisfied the statutory definition of a violent sexual predator and that he suffers from two mental abnormalities or personality disorders that make him likely to engage in future acts of sexual violence if not confined in a facility that will provide him controlled care and treatment. Dr. McClaren specifically testified that based on his diagnosis, the appellant was a sexual sadist with an anti-social personality disorder, the combination of which is potentially lethal, and that there would be "a very high risk for reoffense" if the appellant was not confined in a secure facility. He also noted that the appellant had not received treatment in prison and that he had refused offers of treatment in the past. Dr. Merwin also testified that based on the same diagnosis, there was such a high degree of potential dangerousness from the appellant towards young women that supervision on probation would be inadequate and that confinement in a secure facility for care and treatment was necessary. Based on this and other evidence introduced during the trial, the jury returned its verdict finding that the appellant is a violent sexual predator under the Act.
III. General Provisions and Nature of the Act.
A. General Provisions.
The Act appears in Part V of Chapter 394, Florida Statutes, which is entitled "Involuntary Civil Commitment of Sexually Violent Predators." The Act was enacted after the Legislature recognized the existence of a "small but extremely dangerous number of sexually violent predators ... who do not have a mental disease or defect that renders them appropriate for involuntary treatment under the Baker Act...." § 394.910, Fla. Stat. (1999). To effectively deal with the serious problems caused by such dangerous individuals, the Legislature established "a civil commitment procedure for the long-term care and treatment of sexually violent predators." Id.
The Act defines a "sexually violent predator" as a person who "(a) [h]as been convicted of a sexually violent offense; and (b) [s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment." § 394.912(10), Fla. Stat. (1999). A "mental abnormality" is defined as "a mental condition affecting a person's emotional or volitional capacity which predisposes the person to commit sexually violent offenses." § 394.912(5), Fla. Stat. (1999).
The Act establishes procedures which must be followed in order to commit any person as a sexually violent predator. The Department of Corrections or other agency with jurisdiction must give written notice to a multidisciplinary team and the state attorney of the circuit where the person was last convicted of a sexually *644 violent offense at least 365 days before the anticipated release date of the individual who meets the criteria under the Act.[3]See § 394.913(1), Fla. Stat. (1999). The multidisciplinary team will make an assessment whether the person meets the definition of a sexually violent predator and file a written assessment and recommendation with the state attorney. See § 394.913(3), Fla Stat. (1999). The state attorney may then file a petition with the circuit court alleging that the person is a sexually violent predator and seeking commitment under the Act. See § 394.914, Fla. Stat. (1999).
If a commitment petition is filed, the court must determine whether probable cause exists to believe that the person qualifies as a sexually violent predator subject to commitment. See § 394.915, Fla. Stat. (1999). If the court finds that probable cause does exist, the individual will be transferred to a secure facility. Id. Within 30 days after probable cause is found to exist, the court must conduct a trial to determine whether the person is a sexually violent predator. See § 394.916(1), Fla. Stat. (1999). The individual has a right to a jury trial and if the jury unanimously finds by clear and convincing evidence that the individual is a sexual predator, he or she will be committed to the Department of Children and Family Services "for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is safe for the person to be at large." § 394.917(2), Fla. Stat. (1999). The individual is afforded other procedural safeguards that include the right to appointment of a public defender if the individual is indigent and the right to subsequently petition for release in the future. See §§ 394.916(3), 394.920, Fla. Stat. (1999).
B. Determination Whether The Act Is A Civil Or Criminal Proceeding.
In order to resolve several of the constitutional issues raised by the appellant, it is necessary that we determine whether the proceedings under the Act are civil or criminal. Specifically, a determination of whether the Act violates the double jeopardy and ex post facto clauses of the United States and Florida Constitutions will in large part depend on whether the Act is a civil or criminal proceeding.
In Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), the Court applied a two-prong test to determine whether a statute is civil or criminal. First, a determination must be made whether the legislature intended to enact a statute that establishes a civil proceeding. If the court determines that the legislature intended to enact a civil proceeding, deference will be given to the legislature's intent. The second prong of the test provides that the manifest intention of the legislature may be rejected if the party challenging the constitutionality of the statute presents "clear proof" that the statutory proceeding is "so punitive either in purpose or effect as to negate [the State's] intention to deem it `civil.'" Hendricks, 521 U.S. at 361, 117 S. Ct. 2072. The Florida courts apply a similar two-prong test. See Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA), rev. denied, 722 So. 2d 192 (Fla.), and cert. denied, 525 U.S. 1058, 119 S. Ct. 624, 142 L. Ed. 2d 563 (1998).[4]
*645 In ascertaining the legislative intent under the first prong of the test, the Court in Hendricks examined the legislature's description of the act as a "civil commitment procedure" and noted the placement of the act in the Kansas probate code as opposed to the criminal code. Based on these factors and examination of the face of the act, the Court concluded that the legislature intended to enact a statute that established civil proceedings. Thus, the effect of the act, the language contained in the act, and the legislature's intent, determine whether the act is civil or criminal under the first prong of the test.
The Florida Act is formally entitled "Involuntary Civil Commitment of Sexually Violent Predators," which alone indicates that the Act is intended to be civil. Furthermore, the Legislature specifically stated in section 394.910, Florida Statutes (1999) that "[i]t is therefore the intent of the Legislature to create a civil commitment procedure for the long-term care and treatment of sexually violent predators." In addition, other factors demonstrate that Florida's Act is civil in nature:
1) The Act, which became effective January 1, 1999, was moved from Chapter 916, Florida Statutes, entitled "Forensic Client Services Act" to Chapter 394, Florida Statutes, entitled "Mental Health," effective May 26, 1999.
2) The Act specifically requires application of the Florida Rules of Civil Procedure. See § 394.9155(1), Fla. Stat. (1999).
3) The primary focus of the Act is the commitment of the sexually violent predator to the Department of Children and Family Services for "control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is safe for the person to be at large." § 394.917(2), Fla. Stat. (1999).
We conclude that the Florida Legislature intended to establish a civil proceeding substantially similar to the Kansas act scrutinized by the court in Hendricks. However, the Court in Hendricks noted that civil labels pronounced by a legislature are not always dispositive. Therefore, the second prong of the test must be applied.
The second prong requires the party challenging the constitutionality of an act, the appellant in this case, to provide "`the clearest proof' that `the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' to deem it `civil.'" Hendricks, 521 U.S. at 361, 117 S. Ct. 2072 (quoting United States v. Ward, 448 U.S. 242, 248-249, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980)). The Court in Hendricks applied several factors to determine whether the second prong of the test was met with regard to the Kansas act.
Specifically, the Court considered whether operation of the legislation will promote the traditional aims of criminal punishmentretribution or deterrence. The factors the Court considered in finding that the Kansas act does not promote punishment through retribution and deterrence were: (1) the legislation did not affix culpability for prior criminal conduct, but used prior criminal misconduct as evidence of a mental abnormality to support a finding of dangerousness; (2) scienter was not a prerequisite for commitment as it is for conviction of a criminal offense; and (3) commitment involves an affirmative restraint for the purpose of restricting the freedom of dangerously mentally ill individuals as opposed to inflicting punishment for criminal conduct.
*646 Application of these factors in this case leads us to similarly conclude that the Florida Act does not promote the traditional aims of retribution and deterrence and is, therefore, a civil rather than a criminal proceeding. In making this determination, we will not consider whether commitment under the Florida Act constitutes punishment from the offender's perspective, "as even remedial sanctions carry the `sting of punishment.'" Department of Revenue v. Kurth Ranch, 511 U.S. 767, 777 at n. 14, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (quoting United States v. Halper, 490 U.S. 435, 447, n. 7, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989)).
First, the Act does not establish culpability for criminal conduct. Rather, the Act provides procedural and substantive rights designed and intended to apply to civil proceedings to ensure that both the state and the individual are provided a full and complete hearing to determine whether the individual is a "sexually violent predator" who needs commitment to a secure facility for care and treatment of their mental abnormality or personality disorder.[5] Second, the individual's past criminal conduct is merely used under the Act as evidence of the individual's mental or personality disorder to determine whether he or she is a sexually violent predator subject to commitment. Third, a finding of scienter is not required to determine whether the person is a sexually violent predator and it is not a prerequisite to commitment under the Act. Furthermore, nowhere in the Act does it provide that commitment is intended to punish the individual for his or her conduct. Rather, the provisions of the Act clearly indicate that commitment is for the purpose of "control, care, and treatment" of the sexually violent predator and the protection of the public from their dangerous behavior.
We also find that deterrence is not a goal of commitment under the Act. The Court held in Hendricks that sexually violent predators will probably not be deterred by the threat of commitment because they are, "by definition, suffering from a `mental abnormality' or a `personality disorder' that prevents them from exercising adequate control over their behavior." Hendricks, 521 U.S. at 362, 117 S. Ct. 2072; see also § 394.912(10), Fla. Stat. (1999). Thus, while commitment may prevent future abnormal behavior and contribute to the care and treatment of the individual confined, it will not serve the goal of deterring others from similar misbehavior.
We find, therefore, that the appellant did not meet his burden of showing that the Act is so punitive in purpose or effect as to negate the State's intention that the Act constitutes a civil proceeding. Thus, we conclude that the Act is civil, not criminal. Our conclusion is supported by a recent pronouncement by the Florida Supreme Court that the Act is civil in nature. See Standard Jury InstructionsCriminal Cases (99-2), 25 Fla. L. Weekly at S476, S476, ___ So.2d ___, ___, 2000 WL 766602 (Fla. June 15, 2000) ("The Jimmy Ryce Act provides for the civil commitment of `sexually violent predators' after their criminal sentences have expired.") (footnote omitted) (citation omitted); see also Valdez v. Moore, 745 So. 2d 1009, 1011 (Fla. 4th DCA 1999) (In concluding that lack of an adversarial hearing to determine whether probable cause exists to detain individuals under the Act after their sentences have expired violates due process, the court stated, "The fact that this is a civil proceeding, however, does not mean that the petitioners are not entitled to due process.") (citations omitted).
*647 IV. Constitutional Issues.
A. The Presumption of Constitutionality.
It is a fundamental principle of our constitutional jurisprudence that "all doubts as to the validity of a statute are to be resolved in favor of constitutionality where reasonably possible." L.B. v. State, 700 So. 2d 370, 373 (Fla.1997) (quoting Department of Law Enforcement v. Real Property, 588 So. 2d 957, 961 (Fla.1991)). Thus, "[a] statute is presumed to be constitutional until shown to be otherwise." State v. Sobieck, 701 So. 2d 96 (Fla. 5th DCA), rev. denied, 717 So. 2d 538 (Fla. 1998); see also Scullock v. State, 377 So. 2d 682 (Fla.1979); State v. Barnes, 686 So. 2d 633 (Fla. 2d DCA 1996), rev. denied, 695 So. 2d 698 (Fla.) and cert. denied, 522 U.S. 903, 118 S. Ct. 257, 139 L. Ed. 2d 184 (1997). We find that this principle applies in this case. Hence, we begin our analysis of the Act by presuming that it is constitutional.
B. Ex Post Facto.
The appellant alleges that the Act violates the constitutional proscription against ex post facto legislation. The Ex Post Facto Clauses of the Florida and United States Constitutions prohibit laws that increase the punishment for a criminal offense after the crime is committed. See U.S. Const. art. 1, § 9, cl. 3 ("No ... ex post facto Law shall be passed."); U.S. Const. art. I, § 10, cl. 1 ("No State shall... pass any ... ex post facto Law...."); Fla. Const. art. I, § 10 ("No ... ex post facto law ... shall be passed."); see also Bouie v. Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964); Meola v. Department of Corrections, 732 So. 2d 1029 (Fla.1998); Gwong v. Singletary, 683 So. 2d 109 (Fla.1996), cert. denied, 519 U.S. 1142, 117 S. Ct. 1018, 136 L. Ed. 2d 894 (1997). A primary purpose of the Ex Post Facto Clause is "to ensure that citizens have prior notice of the consequences of committing a crime before the crime is committed." Meola, 732 So.2d at 1032.
The prohibition against ex post facto laws only applies to criminal legislation, not to civil proceedings. See Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); Rowe v. Agency for Health Care Admin., 714 So. 2d 1108 (Fla. 5th DCA 1998); rev. denied, 727 So. 2d 910 (Fla.1999); see also Ortega v. State, 712 So. 2d 833 (Fla. 4th DCA 1998); Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA), rev. denied, 722 So. 2d 192 (Fla.), and cert. denied, 525 U.S. 1058, 119 S. Ct. 624, 142 L. Ed. 2d 563 (1998); Fletcher v. State, 699 So. 2d 346 (Fla. 5th DCA 1997), rev. denied, 707 So. 2d 1124 (Fla.1998). In Bouie v. Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964) the Court gave the following definition:
An ex post facto law has been defined by this Court as one `that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,' or `that aggravates a crime, or makes it greater than it was, when committed.'
Id. at 353, 84 S. Ct. 1697 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798)).
Because we have determined that the Act is civil, not criminal, it is not an ex post facto law prohibited by the United States or Florida Constitutions. Furthermore, the appellant is not being punished for his original crime under the Act or for any other criminal conduct. His sentence for the underlying offense is completed and it is not being increased. Rather, the jury found, based on the evidence presented in a civil trial, that the appellant continues to be sexually violent and in need of care and treatment. In addition, the jury found that public protection from the appellant is necessary and that this is best accomplished by his confinement pursuant to the Act. Therefore, since the appellant is not being punished for any criminal act, his commitment under the Act does not violate the constitutional prohibition against ex post facto laws.
*648 C. Double Jeopardy.
The appellant alleges that the Act violates the Double Jeopardy Clauses of the Florida and United States Constitutions. The constitutional prohibition against double jeopardy prevents a second prosecution for the same criminal offense after acquittal or after conviction, and it prevents multiple punishments for the same criminal offense. See U.S. Const., amend. V ("[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...."); Fla. Const. art. I, § 9 ("No person shall be ... twice put in jeopardy for the same offense, ..."); North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989); State v. Wilson, 680 So. 2d 411 (Fla.1996). Thus, the double jeopardy clauses of both the United States and Florida Constitutions apply to criminal proceedings, not civil proceedings. See Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA 1998), rev. denied, 722 So. 2d 192 (Fla.), and cert. denied, 525 U.S. 1058, 119 S. Ct. 624, 142 L. Ed. 2d 563 (1998).
We have determined that the Act under review in this case is civil in nature and that confinement of the appellant is for treatment and protection of the public, not punishment. Therefore, commitment of the appellant is not a second criminal prosecution for the same offense and is not a second punishment for the same offense. Thus, the Act does not violate the double jeopardy clauses of either the United States or Florida Constitutions.
D. Due Process.
1. Less Restrictive Alternatives.
The appellant contends that the Act violates due process because it does not allow for consideration of less restrictive alternatives to confinement in a secure facility.[6] However, we agree with the appellee that the principle of less restrictive alternatives is rendered inapplicable by the definition of "sexual violent predator" under the Act.[7]
In essence, the Act requires that the jury find by clear and convincing evidence that the person is a violent sexual predator who has a mental abnormality that predisposes him or her to commit sexually violent offenses. Moreover, they must determine that he is likely to reoffend if not confined in a secure facility because his or her propensity to commit acts of sexual violence makes the person a menace to the health and safety of others. If the evidence fails to establish that the person is a violent sexual predator in need of secure commitment, that person will not *649 be civilly committed. Whether the person needs confinement in a secure facility or whether less restrictive alternatives are appropriate are evidentiary matters the jury may consider in determining whether the person is a sexually violent predator. If less restrictive alternatives are appropriate, the jury will find that the person is not a violent sexual predator and confinement will not be ordered. On the other hand, however, when the jury finds by clear and convincing evidence that the person is a violent sexual predator, it has concluded that there are no less restrictive alternatives to confinement that would adequately protect society and provide the necessary control, care and treatment of the individual. Thus, the fact that the Act does not mandate imposition of less restrictive alternatives after a person is found to be a sexual violent predator does not violate due process.
In the instant case, the jury was allowed to consider probation or community control for the appellant as a less restrictive alternative. The appellant presented an expert witness, Dr. Shaw, who testified that the appellant did have a mental abnormality and needed treatment. He also testified, however, that commitment as a sexual violent predator was not necessary because the appellant was going to be on probation with sex offender treatment. The appellant's expert, therefore, concluded that this was sufficient treatment and adequate protection for society. The jury disagreed and found that the appellant is a sexual violent predator requiring commitment in a secure facility. The fact that the court was not allowed under the Act to consider probation or community control as an alternative form of commitment for the appellant once he was found to be a violent sexual predator did not violate his right to due process.
We note that the Act makes provision for post commitment proceedings to determine whether a committed individual should continue in confinement. See §§ 394.918-.920, Fla. Stat. (1999). The issue whether less restrictive alternatives should be considered in post commitment proceedings under the Act is not before us. We, therefore, restrict our opinion concerning the applicability of less restrictive alternatives to the commitment trial proceedings and commitment pursuant to the jury verdict. We express no opinion whether less restrictive alternatives should be considered in post commitment proceedings; whether the provisions of section 394.911, Florida Statutes (1999) ("Less restrictive alternatives are not applicable to cases initiated under this part.") apply to prohibit consideration of less restrictive alternatives in post commitment proceedings brought under sections 394.918-.920; or the constitutionality of prohibiting consideration of less restrictive alternatives in post commitment proceedings.
2. The Vagueness Doctrine.
The appellant argues that the Act should be declared void because the definition of the term "mental abnormality" is unconstitutionally vague. The Act defines a "sexually violent predator" as "any person who (a) [h]as been convicted of a sexually violent offense; and (b) [s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment." § 394.912(10), Fla. Stat. (1999). The Act defines the term "mental abnormality" as "a mental condition affecting a person's emotional or volitional capacity which predisposes the person to commit sexually violent offenses." § 394.912(5), Fla. Stat. (1999). The terminology "likely to engage in acts of sexual violence" is defined to mean "the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others." § 394.912(4), Fla. Stat. (1999). The appellant contends that these terms as defined in the Act are vague, especially the term "likely," which is used in the terminology "likely, to engage in acts of sexual violence."
*650 The vagueness doctrine was adopted to assure compliance with the due process clause of the United States and Florida Constitutions.[8]See Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984); State v. Rawlins, 623 So. 2d 598 (Fla. 5th DCA 1993); State v. Hoyt, 609 So. 2d 744 (Fla. 1st DCA 1992). Specifically, the vagueness doctrine applies to substantive due process requirements.[9] This doctrine prohibits enforcement of "`a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)); see also State v. Wershow, 343 So. 2d 605 (Fla.1977).
"A vague statute is one that fails to give adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement." Southeastern Fisheries Ass'n, Inc. 453 So.2d at 1353. The courts have held that "common understanding and reason" must be used in determining whether a statute is vague. Id. The Florida Supreme Court has held:
In determining whether a statutory provision is so vague as to violate due process of law, we must consider whether the provision is so vague that men of common intelligence must necessarily guess at its meaning. The test of vagueness of a statute is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.
State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980) (citing Washington v. State, 302 So. 2d 401 (Fla.1974), cert. denied, 421 U.S. 918, 95 S. Ct. 1582, 43 L. Ed. 2d 786 (1975); Newman v. Carson, 280 So. 2d 426 (Fla. 1973)); see also State v. Rawlins, 623 So. 2d 598 (Fla. 5th DCA 1993) ("The vagueness doctrine was developed to insure compliance with the due process clauses of the state and federal constitutions which require that a law be declared void if it is so vague that one of common intelligence must necessarily guess at its meaning and differ as to its application.") (citing Webb v. Department of Prof'l Regulation, 595 So. 2d 1103 (Fla. 5th DCA 1992)).
The supreme court in Hagan also held that the Legislature's failure to define a term in a statute does not in and of itself render the statute unconstitutionally vague. If the definition of a term is not provided in the statute, "resort may be had to case law or related statutory provisions which define the term." Hagan, 387 So.2d at 945. If the statute does not specifically define words of common usage, "such words are construed in their plain and ordinary sense." Id.; see also L.B. v. *651 State, 700 So. 2d 370 (Fla.1997); Barr v. State, 731 So. 2d 126 (Fla. 4th DCA 1999). Furthermore, dictionaries may be used to ascertain the meaning the Legislature intended to ascribe to a particular statutory term. See Sieniarecki v. State, 756 So. 2d 68, 74 (Fla.2000) ("`If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.'") (quoting Green v. State, 604 So. 2d 471, 473 (Fla.1992)); L.B., 700 So.2d at 372 (citing Gardner v. Johnson, 451 So. 2d 477, 478 (Fla.1984)).
The appellant primarily complains that the term "likely" as used in the terminology "likely to engage in acts of sexual violence" is unconstitutionally vague. To resolve this issue, we turn first to Merriam-Webster's dictionary which defines "likely" as "having a high probability of occurring or being true: very probable." Merriam-Webster's Collegiate Dictionary 674 (10th ed.1999).[10] The appellant, when arguing in his brief that the definition of "likely" supports a jury instruction defining the term to mean "having a better chance of existing or occurring than not," gives the following definition: "Webster's Third New International Dictionary (unabridged) supports the requested jury instruction as well, since it defines "likely" as "having a better chance of existing or occurring than not."[11]
We turn next to the definitions in the case law. The Florida Supreme Court in In re Beverly, 342 So. 2d 481 (Fla.1977) was confronted with determining the constitutionality of section 394.467, Florida Statute (1973) which provided that "[a] person may be involuntarily hospitalized if he is mentally ill and because of his illness is (a) likely to injure himself or others if allowed to remain at liberty, or (b) in need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf." (Emphasis supplied). Specifically, the appellant contended that the term "mentally ill" was unconstitutionally vague. The court held that the statute was constitutional and stated:
It is elementary that statutes may properly authorize the involuntary commitment of the mentally ill when the term `mentally ill' is given a satisfactory Legal meaning. Section 394.467(1), Florida Statutes, quoted above, imparts a sufficient Legal meaning to the term `mental illness' by setting criteria. Under the statute the pertinent inquiry is whether the person is mentally ill and [b]ecause of his illness is (1) likely to injure himself or others if allowed to remain at liberty, or (2) is in need of care or treatment and lacks sufficient capacity to make a reasonable application on his own behalf. These statutory standards are more precise than those discussed in Commonwealth ex rel. Finken v. Roop, [234 Pa.Super 155, 339 A.2d 764 (1975)] supra, as the Florida statutory language is adequate to warn that a person is subject to involuntary hospitalization only if he or she is likely to harm himself or others, or if he or she requires treatment and does not have the capacity to decide for himself. The *652 appellant's vagueness challenge to the statute is without merit.
Id. at 485 (emphasis supplied).
In Hill v. State, 358 So. 2d 190 (Fla. 1st DCA 1978), the court addressed the appropriate standard that should be applied to the release of the criminally insane. The court held that the "likely-to-injure" standard under section 394.467(1)(a) as opposed to the "manifestly dangerous to others" standard under rule 3.460, Florida Rule of Criminal Procedure, is the appropriate standard.[12] The court specifically stated that "likely-to-injure requires a more exact prediction of harm; it connotes a probability of injury"; thus, "[l]ikely-to-injure emphasizes the dimension of probability." Id. at 195-96.
Courts in other states have upheld similar terminology in statutory schemes substantially similar to Florida's Act. In Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779 (App.1999), for example, the court was faced with a due process challenge to Arizona's Sexually Violent Persons Act which is substantially similar to Florida's Act. The Arizona act provides that to commit a person under the act, the state must establish that the person is a "sexually violent person" which the statute defines as "a person who [h]as been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined competent to stand trial," and "[h]as a mental disorder that "makes the person likely to engage in acts of sexual violence." Ariz. Rev.Stat. § 36-3701(7)(b) (1999). In finding that this term did not make the statute unconstitutionally vague under the due process clause of Arizona's constitution, the court stated:
We have defined "likely" as probable rather than merely possible. Thus Petitioners may not be committed upon the mere possibility of future dangerousness.
Reinstein, 987 P.2d at 800 (citations omitted). The California Supreme Court, in Hubbart v. Superior Court, 19 Cal. 4th 1138, 81 Cal. Rptr. 2d 492, 969 P.2d 584 (1999), likewise rejected due process challenges directed against virtually identical terminology regarding a mental disorder that makes it "likely" that the individual will engage in sexually violent behavior.[13] Similarly, in In re Young, 122 Wash.2d 1, 857 P.2d 989, 1013-14 (1993), the court expressly rejected arguments that the terms "mental abnormality" and "likely" were unconstitutionally vague.
We find that the term "likely" as used in the terminology "likely to engage in acts of sexual violence" is a widely used term that is commonly understood by men and women of common intelligence to mean highly probable or probable and having *653 a better chance of existing or occurring than not. The meaning of "likely" is sufficiently clear and definite to avoid guessing or speculation concerning its intended meaning under the Act. We note that the fact that the Legislature "might, without difficulty, have chosen `clearer and more precise language' equally capable of achieving the end which it sought, does not mean that the statute which it in fact drafted is unconstitutionally vague." L.B. v. State, 700 So. 2d 370, 372 n. 3 (quoting United States v. Powell, 423 U.S. 87, 96 S. Ct. 316, 46 L. Ed. 2d 228 (1975)); see also State v. Barnes, 686 So. 2d 633, 637 (Fla. 2d DCA 1996).
We also find that the term "mental abnormality" which is clearly defined as "a mental condition affecting a person's emotional or volitional capacity which predisposes the person to commit sexually violent offenses" is not unconstitutionally vague. See § 394.912(5), Fla. Stat. (1999). The United States Supreme Court held in Hendricks that the Kansas act which contains terminology that is substantially similar to the terminology in the Florida Act satisfies substantive due process requirements. The Court stated:
Kansas argues that the Act's definition of "mental abnormality" satisfies "substantive" due process requirements. We agree....
The challenged Act unambiguously requires a finding of dangerousness either to one's self or to others as a prerequisite to involuntary confinement. Commitment proceedings can be initiated only when a person "has been convicted of or charged with a sexually violent offense," and "suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." Kan. Stat. Ann. § 59-29a02(a) (1994). The statute thus requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.
Hendricks, 521 U.S. at 356-358, 117 S. Ct. 2072.
We note with interest that even the dissent in Hendricks agreed that the Kansas act complies with substantive due process requirements. Justice Breyer stated, "I agree with the majority that the Kansas Sexually Violent Predator Act's `definition of "mental abnormality"' satisfies the `substantive' requirements of the Due Process Clause." Id. at 373, 117 S. Ct. 2072 (Breyer, J., dissenting).
We conclude that the Florida Act, which contains identical terminology to that which the Court in Hendricks found in compliance with substantive due process requirements, is not void for vagueness and likewise complies with substantive due process requirements.
E. Equal Protection.
The appellant argues that the Act violates the equal protection clauses of the United States and Florida Constitutions. Specifically, he argues that since the standards for determining mental abnormalities or the likelihood of recidivism are vague, different experts that evaluate alleged sexual predators under those standards will come to different conclusions, which will result in differential treatment of alleged predators. In other words, the appellant argues that the allegedly vague standards for determining whether a person qualifies as a sexual predator under the Act will result in inconsistent findings concerning the ultimate determination whether a person falls within or outside of the statutory classification of sexual predator. We find this argument has no merit.
The equal protection clause is only concerned with whether the classification pursuant to a particular legislative enactment is properly drawn. We agree with the following explanation of the principal distinction between due process and equal protection:
*654 The equal protection guarantee has nothing to do with the determination of whether a specific individual is properly placed within a classification. Equal protection tests whether the classification is properly drawn. It is the guarantee of procedural due process that determines what process is necessary to find that an individual falls within or outside of a specific classification. Equal protection deals with legislative line drawing; procedural due process deals with the adjudication of individual claims.
Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law; Substance and Procedure, § 18.1, at 206-07 (3d ed.1999).
Thus, the argument presented by the appellant is more closely associated with due process requirements. In L.B. v. State, 700 So. 2d 370 (Fla.1997), the court addressed this due process argument and held that a statute is not unconstitutional simply because inconsistent conclusions may be reached based on the application of the same statutory terminology. The court stated the reason for this rule:
It is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.
Id. at 373 (quoting Roth v. United States, 354 U.S. 476, 492 n. 30, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)). We have held in another part of this opinion that the terminology the appellant alleges will result in inconsistent treatment of alleged sexual predators is not unconstitutionally vague under the due process clauses of the United States or Florida Constitutions. Therefore, the possibility of inconsistent treatment of sexual predators under the Act because of potential inconsistent expert findings based on the statutory requirements of the Act does not render the Act unconstitutional under the due process clause.
We next consider the standard to apply in determining whether the Act violates the equal protection clause. The appellant contends that the strict scrutiny standard should be applied to determine whether the Act violates the equal protection clause and the appellee contends the less stringent rational basis standard should be utilized. We find that the Act does not violate the equal protection clauses under either standard.
Under the rational basis standard, the court must determine whether it is conceivable that the classification established by the Act bears a rational relationship to a legitimate state purpose. See Lite v. State, 617 So. 2d 1058 (Fla.1993); Florida High School Activities Ass'n, Inc. v. Thomas, 434 So. 2d 306 (Fla.1983); Rice v. State, 754 So. 2d 881 (Fla. 5th DCA 2000) (citing Hershkowitz v. State, 744 So. 2d 1268 (Fla. 3d DCA 1999)); Barr v. State, 731 So. 2d 126 (Fla. 4th DCA 1999). "The burden is upon the party challenging the statute [the appellant in this case] to show that there is no conceivable factual basis which would rationally support such classification." Barr, 731 So.2d at 130. The courts generally accord the Legislature wide discretion in creating statutory classifications and recognize a presumption in favor of the statute's validity. See North Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So. 2d 461 (Fla.1979); Barr.
The strict scrutiny test generally applies only to statutes which are inherently suspect because "they impinge too greatly on fundamental constitutional rights, either under the federal or Florida Constitutions, or if they primarily burden certain groups that have been the traditional targets of irrational, unfair and unlawful discrimination." Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249, 251 (Fla.1987) (citing Florida High *655 School Activities Ass'n., Inc.). This test requires that in order for the statute to be valid, it must be designed to advance a compelling state interest by the least restrictive means. Id.
We find that a rational basis for the classification created by the Act does exist. The protection of the public from violent sexual predators who are likely to reoffend and the need to provide them care and treatment for their mental abnormality while confined in a state institution is a rational basis for this classification. We also find that the Act meets the strict scrutiny test for the same reasons.
Furthermore, we find that the statute does advance the compelling state interest of treatment of the sexual predator and protection of the public by the least restrictive means available. The Act focuses on a very select group of violent criminal offenders who commit particular forms of predatory sex acts against both adults and children and who are incarcerated at the time commitment proceedings under the Act are commenced. Commitment as a sexual violent predator may not occur unless the state proves by clear and convincing evidence that the individual is a violent sexual predator who suffers from a "mental abnormality or personality disorder that renders him or her likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment" because "the person's propensity to commit acts of sexual violence is of such a degree that the person poses a menace to the health and safety of others." See § 394.912(4), (5), (10), Fla. Stat. (1999).
The problem addressed by the Act is acute, and the state interestsmental health treatment and protection of society are compelling. The goals of long-term treatment and protection of the public can only be accomplished by confinement in a secure facility until it is determined that the mental condition of the person "has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged." § 394.918(3), Fla. Stat. (1999). We also find that the provisions of the Act for subsequent review and possible release of the committed violent sexual predator supplement the efforts of the Legislature in providing the least restrictive means of advancing the compelling state interest of treatment and protection of the public under the Act. See §§ 394.918-.920, Fla. Stat. (1999).
V. The Jury Instructions.
The appellant requested a jury instruction defining the term "likely to engage in acts of sexual violence" to mean that the appellant "more likely than not will engage in such acts if not confined." The appellant offered two alternative definitions which defined the word "likely" to mean "more likely to happen than not" or "having a better chance of existing or occurring than not." The trial court denied each of these proposed jury instructions finding that the word "likely "was "a pretty commonly understood word." Therefore, the trial court instructed the jury as follows:
To prove the respondent, Mitchell [sic] Westerheide, is a sexually violent predator, the state must prove each of the following three elements by clear and convincing evidence.
One, Mitchell [sic] Westerhide has been convicted of a sexually violent offense. And two, Mitchell [sic] Westerhide suffers from a mental abnormality or personality disorder. And three, the mental abnormality or personality disorder makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term controlled care and treatment.
As to the first element, a sexually violent offense includes a lewd, lascivious or indecent assault or act upon or in the presence of a child.
With respect to the second element, the term mental abnormality means mental condition affecting a person's emotional or volitional capacity which predisposes the person to commit sexually *656 violent offenses. The term volitional means the act of will or choosing or the act of deciding or the exercise of will.
As to the third element, the term likely to engage in acts of sexual violence means a person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.
This court has previously held that trial courts are generally accorded broad discretion in formulating jury instructions. See Reyka v. Halifax Hosp. Dist., 657 So. 2d 967 (Fla. 5th DCA 1995). As such, the standard of review to be applied to a decision to give or withhold a jury instruction is abuse of discretion. See Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999). The trial court's decision to give a particular instruction will not be reversed "unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury." Faber, 745 So.2d at 974 (citing Reyka). Furthermore, if the jury instructions as a whole fairly state the applicable law, failure to give a particular instruction will not be error. See CSX Transp., Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991).
We find that the instructions given by the trial judge closely track the pertinent provisions of the Act and we find, therefore, that these instructions are an accurate statement of the law. Furthermore, the instructions given in this case were taken from proposed jury instructions published in the February 15, 1999 edition of the Florida Bar News.[14] The Supreme Court Committee on Standard Jury Instructions in Criminal Cases[15] made changes and revisions to the instructions before submitting the instructions to the Supreme Court, which republished the instructions in the August 1, 1999 edition of the Florida Bar News.[16] In Standard Jury InstructionsCriminal Cases (99-2), 25 Fla. L. Weekly S476, ___ So.2d ___, 2000 WL 766602 (Fla. June 15, 2000), the court authorized publication of the jury instructions for use in proceedings under the Act. We note that the specific instructions at issue in this case quoted above, which the trial court took from the February edition of the Florida Bar News, have not been changed or amended and are virtually identical to the instructions the court authorized for publication in its opinion. Moreover, we have previously discussed in another part of this opinion the definition of the term "likely," which we found to mean highly probable or probable and having a better chance of existing or occurring than not. Thus, the definition requested by the appellant would add nothing to the common meaning of that term. We conclude that the instructions given in the instant case did not result in a miscarriage of justice and they were not reasonably calculated to confuse the jury. Therefore, the trial court did not commit error in refusing to give the appellant's requested instructions.
VI. Admission Of Opinion Testimony By Appellee's Experts That The Appellant Would Likely Reoffend.
In the trial proceedings, specifically during the probable cause hearing and the jury trial, the appellant attempted to raise the issue that the opinions of appellee's two expert psychologists did not meet the Frye standard of admissibility. See Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). Specifically, the appellant objected *657 that the experts' use of the Minnesota Multiphastic Personality Inventory (MMPI) to predict the appellant's potential for reoffense must be scrutinized under the Frye analysis. However, the appellant abandoned that issue in these appellate proceedings when he realized that the MMPI was not used by the appellee's experts for this purpose but was only used for background information.
Since the appellant has abandoned the Frye issue, we will not address it other than to parenthetically note that the record clearly shows that in formulating their opinions, neither expert used any psychological profile or syndrome designed to identify violent sexual predators which may very well be subject to a Frye analysis. Rather, both experts rendered their opinions in this case based on their training and experience. Florida courts have consistently held that the Frye analysis does not apply to this type of expert testimony. See Hadden v. State, 690 So. 2d 573 (Fla.1997); Flanagan v. State, 625 So. 2d 827 (Fla.1993); Florida Power & Light Co. v. Tursi, 729 So. 2d 995 (Fla. 4th DCA 1999). In Flanagan, the court held that while novel scientific evidence is not admissible unless it meets the test established in Frye, not all expert testimony is subject to the Frye analysis. The court stated the general rule as follows:
Of course, not all expert testimony must meet this test in order to be admissible.... [P]ure opinion testimony, such as an expert's opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert's personal experience and training.
Flanagan, 625 So.2d at 828. Courts in other jurisdictions that have specifically addressed application of the Frye analysis to expert testimony in cases involving sexually violent predator acts substantially similar to Florida's Act have held that Frye does not apply. For example, in People v. Ward, 71 Cal. App. 4th 368, 83 Cal. Rptr. 2d 828 (1999), the court specifically held that Frye does not apply to a "psychiatrist's prediction of future dangerousness or a diagnosis of mental illness" and concluded that "the trial court did not abuse its discretion when it admitted expert testimony regarding the likelihood that defendant was an SVP and likely to reoffend." Id. at 831-32.
The appellant here, however, maintains that the lower court erred in admitting expert testimony because a predicate was not established that the experts were capable of accurately predicting whether the appellant would reoffend. The admission of expert testimony from psychologists and psychiatrists for the purpose of predicting future dangerousness caused by mental illness or abnormalities is nothing new or novel to the law. The sciences of psychiatry and psychology have been an integral part of American jurisprudence since its inception and although this type of expert testimony is not amenable to mathematical precision, we find that predictions of future dangerousness are sufficiently accurate and reliable to be admissible. We are not alone in this decision. Courts in other jurisdictions have reached the same conclusion in cases involving application of statutory schemes similar to the Florida Act that commit violent sexual predators for control, care, and treatment. See In re Detention of Campbell, 139 Wash.2d 341, 986 P.2d 771 (1999); In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993); Aguilar v. State, 77 Wash.App. 596, 892 P.2d 1091 (1995); People v. Ward, 71 Cal. App. 4th 368, 83 Cal. Rptr. 2d 828 (1999); see also Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779 (App.1999).
The United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983) explained why it rejected the contention that expert testimony on future dangerousness should be excluded from capital trials:
Acceptance of petitioner's position that expert testimony about future dangerousness is far too unreliable to be *658 admissible would immediately call into question those other contexts in which predictions of future behavior are constantly made. For example, in O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396 (1975), we held that a nondangerous mental hospital patient could not be held in confinement against his will. Later, speaking about the requirements for civil commitments, we said:
"There may be factual issues in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists." Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804, 1811, 60 L. Ed. 2d 323 (1979).
In the second place, the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. If the jury may make up its mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of the State's psychiatrists along with opposing views of the defendant's doctors.
463 U.S. at 898-99, 103 S. Ct. 3383 (footnote omitted).
We agree with the rationale adopted by the Court in Barefoot. Predictions of the likelihood of reoffense under the Act may be made by qualified experts with a sufficient degree of accuracy that renders such evidence reliable for admission into evidence. The reliability and accuracy of this expert testimony may be argued to the jury, the respondent in proceedings under the Act may present his or her own expert testimony regarding this issue, and the jury will give the evidence whatever weight they feel is appropriate. Thus, we find that expert testimony regarding the likelihood of reoffense under the Act assists the trier of fact in understanding the evidence and in determining facts in issue and should be admissible provided the opinions are rendered by witnesses who are qualified. See § 90.702, Fla. Stat. (1999).
The appellant argues that the experts called by the appellee were not qualified to render opinions regarding the likelihood of reoffense by the appellant. A witness may be qualified as an expert by either knowledge, skill, experience, training, or education or any combination thereof. See id.; see also Fla. R. Civ. P. 1.390(a). Whether a witness is sufficiently qualified as an expert is a matter to be resolved by the trial court. See § 90.105(1), Fla. Stat. (1999). The trial courts have wide discretion in determining whether a witness is qualified as an expert, and that decision will not be disturbed on appeal absent a clear showing of abuse of that discretion. See Carrier v. Ramsey, 714 So. 2d 657 (Fla. 5th DCA 1998); Gulley v. Pierce, 625 So. 2d 45 (Fla. 1st DCA 1993), rev. denied, 637 So. 2d 236 (Fla. 1994); Ramirez v. State, 542 So. 2d 352 (Fla.1989).
The record reveals that Dr. McClaren has an extensive background in forensic psychology, has dealt extensively with violent offenders and with mentally disordered sex offenders, and has attended training seminars with leading experts regarding risk assessment. Dr. Merwin also has an extensive background in psychology and forensic psychology. He has spent much of the past twenty years working with sexual abuse, victimization, sexual predators, and related matters and has attended seminars regarding the identification of sexual predators, including the *659 prediction of recidivism. The trial judge in the instant case heard all of the testimony relating to the qualifications of both experts and rendered his decision that they were both qualified to render opinions as experts in the field of forensic psychology regarding the relevant issues of whether the appellant qualifies as a violent sexual predator and the likelihood that he will reoffend in the future. We find that the trial judge did not abuse his discretion in rendering this decision.
VII. Conclusion and Certification of Questions of Great Public Importance
In conclusion, we affirm the order of commitment, finding no constitutional infirmities in the Act as alleged by the appellant; no error in the jury instructions given by the trial court; and no error in admitting the opinion testimony by the appellee's experts that the appellant would likely reoffend.
This opinion and the concurring opinion authored by Judge Sharp underscore the magnitude and importance of the constitutional issues raised in these proceedings regarding the Act. We also take this opportunity to underscore the importance of having these issues, which we find to be of great public importance, finally resolved by the Florida Supreme Court. Therefore, we certify the following as questions to be of great public importance:
1) DOES THE JIMMY RYCE ACT VIOLATE THE EX POST FACTO CLAUSES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS?
2) DOES THE JIMMY RYCE ACT VIOLATE THE DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS?
3) DOES THE JIMMY RYCE ACT VIOLATE THE DUE PROCESS CLAUSES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS?
4) DOES THE JIMMY RYCE ACT VIOLATE THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS?
AFFIRMED; QUESTIONS CERTIFIED.
ORFINGER, M., Senior Judge, concurs.
W. SHARP, J., concurs with certification and concurs specially, with opinion.
W. SHARP, J., concurring specially.
Although I have serious doubts about the constitutionality of the "Jimmy Ryce Act" in other cases, I concur in the result reached by the majority here.
In my view the most troubling aspects of this new statute and statutory procedure are the burdens of proof, and the statutory definition of persons who can be (essentially) confined for the remainder of their lives if found to be a "sexually violent predator." The reason I say this is because it should not be an easy process to commit a person under this Act, and I think the statutory wording is open to that distinct possibility. After being confined, the statute makes it very difficult for a person to get out. This makes the consequences of being found to be a sexually violent predator extremely grave, whether it is deemed to be a "criminal" or "civil" proceeding. The statute uses the words "care and treatment" rather than "punishment" but it is problematic whether such treatment programs actually exist or whether the ones in place are effective to treat such mental abnormalities or disorders.[1]
Once a person is determined to be a sexually violent predator, he or she is given the right to petition for release and the right to retain an expert to do a mental *660 examination or, if indigent, the right to have one appointed by the court. Thereafter, the court holds a "limited hearing" to determine whether there is probable cause to believe the person's condition has changed so that it is "safe for the person to be at large, and that the person will not engage in acts of sexual violence, if discharged."[2] (emphasis supplied) The confined person has no right to attend that hearing, although he or she has the right to be represented by counsel. Based on the language of the statute, the confined person has the burden of proof at that hearing and must prove that he or she will not repeat acts of sexual violence, a standard much higher than required by the statute in order to get that person confined in the first place.
The definition of "sexually violent predator" is indeed circular, as set forth in the statute. It reminds me of some dictionaries that define a word by reference to another word, which refers you back to the first word. For example, The American Heritage Dictionary defines "abnormal" as "not normal; deviant" and after turning to "deviant" one is referred back to "differing from the norm."
In the case of this statute, to be classified as a "sexually violent predator," one first must have committed a "sexually violent offense." The statute lists some specific statutes, which clearly include the crime for which Westerheide was convicted in this case. But one troubling aspect allows such a classification for "any criminal act, that has at any time been determined beyond a reasonable doubt to have been sexually motivated." § 394.912(9)(h), Fla. Stat. The possibilities of that latter category are infinite, and open to strange results. Would peeping Toms and Janes, or stalkers qualify?
The second part of the definition is the circular part: He or she "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence, if not confined in a secure facility for long term control, care and treatment." § 394.912(10)(b), Fla. Stat. Mental abnormality is defined as any mental condition "which predisposes the person to commit sexually violent offenses," and "likely to engage in acts of sexual violence" is defined "as a propensity to commit acts of sexual violence." In essence, when rolled together the statute defines sexual predator as a person who has committed a crime, specified by the statute, served the time for the crime in prison, and at the time of his or her release is "likely" to engage in acts of sexual violence in the future, unless confined for an indeterminate time, perhaps many years.
Since the second part of the definition turns on "likely," I agree with Westerheide that this term is key and vital, and that any jury instructions given should address what it means. The majority concludes that "likely" needs no further explanation to the jury because everyone in our culture or society knows what it means. I am not sure that is true. Some people use the term to mean there is a chance something will occur, although less than 50%. The prosecutor, in a companion case to this one, argued to the jury that "likely" meant to him, if there was a 20% chance the defendant/potential confinee would commit another sexually violent act, the test was met. One dictionary definition quoted by the majority says "likely" means a greater than 50% chance something will occur, and the other dictionary quoted by the majority says the probability must be a good deal more than 50%, a high probability of occurring. That is quite a range of possibilities, and one too great to pass constitutional muster, in my view, in an appropriate case.[3]
*661 Since this statute has very grave consequences for persons found to be sexually violent predators and since we (as courts) at least until this time in our democracy, have always sided with freedom for the individual, I would read the language of the statute as placing the highest barrier to being found to be a sexual predator.[4] The ending part of the statutory definition of "likely to engage" says this likeliness must be "of such a degree as to pose a menace."[5] Thus I would construe "likely" as meaning a high probability, greater than 50%.
That is, in fact, what the experts in this case testified about Westerheide. Dr. McClaren testified Westerheide's mental disorders were so grave as to be "lethal," and that there was a "very high risk" Westerheide would reoffend if not confined. And Dr. Merwin testified there was a "high degree" of potential dangerousness towards young women if Westerheide were released and not confined. Thus, in this case, I conclude there was no harmful error in not clarifying the meaning of "likely."
My final general concern about this statute is that it is not based on sound medical or scientific practices or findings, although Westerheide has dropped his Frye-test[6] argument in this appeal. The Legislature made a finding, in passing this statute, that there exists a small but very dangerous group of people called "sexually violent predators." However, there is no evidence this group truly exists and is identifiable.
Even if such a "syndrome" can be established by legislative fiat, there is also great uncertainty about the accuracy of psychiatric diagnosis and the prediction of future behavior. As Justice Brennan explained in his dissenting opinion in Jones v. United States, 463 U.S. 354, 378-379, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983):
It is worth examining what is known about the possibility of predicting dangerousness from any set of facts. Although a substantial body of research suggests that a consistent pattern of violent behavior may, from a purely statistical standpoint, indicate a certain likelihood of further violence in the future, mere statistical validity is far from perfect for purposes of predicting which individuals will be dangerous. Commentators and researchers have long acknowledged that even the best attempts to identify dangerous individuals on the basis of specified facts have been inaccurate roughly two-thirds of the time, almost always on the side of over-prediction. On a clinical basis, mental health professionals can diagnose past or present mental condition with some confidence, but strong institutional biases lead them to err when they attempt to determine an individual's dangerousness, especially when the consequence of a finding of dangerousness is that an obviously mentally ill patient will remain within their control.
It appears to me that in this case Westerheide should have been able to challenge the admissibility of the expert opinion offered against him on the ground that the experts have no scientific basis to enable them to predict future acts of violence. In *662 the dissent in In re Detention of Campbell, 139 Wash.2d 341, 986 P.2d 771 (1999), Justice Sanders opined that the expert testimony should not have been admitted because it was not based on accepted scientific principles:
In the dark heart of the sex predator statute is the legislative denial of free will and individual responsibility. This is true because a `sexually violent predator' is legislatively defined as one `who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence....' RCW 71.09.020(1). Necessarily one who simply commits a violent sexual act through volitional choice is outside the statute. Such an individual is what the criminal law is made for. But in theory the person who does this because his "mental abnormality" or "personality disorder" makes him do it is not a person acting by his free will and, consequently, not one who can be held accountable for his choices.
Therefore evidence is necessary to distinguish between those who volitionally act of their free will and those who don't. On its face future acts of violence based on free choice are not only outside the statute but would seem unpredictable in principle. On the other hand one would expect those acting out their non-volitional destiny by reason of a `mental abnormality' or `personality disorder' which causes violent sexual conduct would show themselves through the application of diagnostic criteria proved in the scientific arena to be reliable and accurate through repetition and replication. Reciprocally, when such predictions are not based on proven methodology they lack the competence justifying consideration by the trier of fact because they provide no factual assistance, only prejudice, speculation, and/or what some may call `junk science.'
The necessity for testimony based upon good science is only heightened by the statistical observation that 88 percent of sex offenders will not reoffend if released, although even if the ratio were reversed we would still require proof beyond a reasonable doubt that the specific individual at bar met the criteria. If expert testimony does not reliably and validly distinguish the individual within the statutory class subject to commitment from he who is not, a grave injustice has occurred because we have deprived an individual his liberty without sufficient factual basis.
986 P.2d at 786-787.
Justice Sanders noted that when conducting risk assessments, mental health professionals generally employ two distinct methods: the clinical approach or the actuarial approach. In this case, the experts employed the clinical approach and that is why, presumably, Westerheide dropped his Frye argument. But there is wide-spread agreement among mental health experts that clinical predictions of dangerousness are highly unreliable:
In literally hundreds of comparisons over many domains including the prediction of recidivism, clinical judgment has essentially never been found to be superior to actuarial methods, whereas the converse has most often been demonstrated (Grove & Meehl, 1996; Mossman, 1994). Some studies have shown better-than-chance (i.e., they outperformed blind guesswork) performance by clinicians, but many have not. No studies have demonstrated that clinicians' judgments are more accurate than those of laypersons, and there is at least one study showing that they are not (Quinsey & Ambtman, 1979).
Id. at 788, citing Grant T. Harris, et al., Appraisal and Management of Risk in Sexual Aggressors: Implications for Criminal Justice Policy, 4 Psych. Pub. Policy & Law, 73, 88 (1998).
In an article in the National Legal Aid and Defender Association, the author notes that sex offender civil commitment statutes have called upon psychologists to *663 make predictions of "unprecedented specificity" with "unprecedented certainty." However, the scientific literature in the field suggests that clinical judgment is a very poor predictor of future violence in general and sexual violence in particular:
In recent years, psychologists have developed actuarial tests to predict general and sexual violence. The Violence Prediction Scheme: Assessing Dangerousness in High Risk Men, Centre of Criminology, University of Toronto (1994). The actuarial tools have not been able to accurately predict sexual violence very well. Rice & Harris, "Cross-Validation and Extension of the Violence Risk Appraisal Guide for Child Molesters and Rapists," Law & Human Behavior, Vol. 21, No. 2, 231 (1997). Psychologists are constantly producing new articles on the risk factors for sexual recidivism. Defenders handling sex offender commitment trials need to find an expert to coach them in the recent literature; some of it can be used to demonstrate that most clinicians cannot predict sexually violent recidivism accurately enough to satisfy the legal standard of dangerousness. See Janus & Meehl, "Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings," Psychology, Public Policy, & Law, 3, 33-64 (1997). Also, recidivism rates for sex offenders are lower than the public perception.
Chris Jackson, Sex Offender Civil Commitment Litigation After Hendricks. http://www.nlada.org/indig/jan-feb98/jax.htm>.
In Yale Medicine, Dr. Howard Zonana estimated that the annual cost of caring for a committed sex offender is between $60,000 to $130,000 per patient. Dr. Zonana is a professor of psychiatry at Yale Medical School and clinical lecturer at Yale Law School and also chairs the American Psychiatric Association's Task Force on Sexually Dangerous Offenders. Dr. Zonana pointed out that treatment for sex offenders requires maximum security facilities that are not usually found in hospital settings and suggested that if sex offenders are unable to control their behavior, they should be given longer prison terms and those who need psychiatric treatment should have it available before the end of their criminal sentences.
Dr. Zonana was concerned that sexual predator commitment statutes provide a very low threshold for people to be determined mentally ill. Under these statutes, it is possible for sex offenders to be hospitalized based on remote past behavior and any mental abnormality or personality disorder that makes them likely to repeat their behavior. According to Dr. Zonana, this issue raises tough questions such as what mental illnesses or conditions are sufficient to meet the sexually violent predator requirement:
"This law is so broadly drawn that rapists who display anti-social behavior or traits could be hospitalized," says Dr. Zonana. "This is transforming criminal behavior into mental illness, further stigmatizing the mentally ill and serving a primary function of preventive detention."
Psychiatric Hospitals May Be Deluged With Sex Offenders, Yale Medicine (Winter/Spring 1998) http://info.med.yale.edu/external/pubs/ym ws98/scope/scope/runtext 6d01.html>.
According to a report from the Florida Office of Program Policy Analysis and Government Accountability,[7] Florida's sexually violent predator program has contracts with one psychiatrist and thirty-one psychologists throughout the state, to assess whether offenders meet the criteria for commitment. Prior to their contract, most of the evaluators did not have an *664 extensive expertise working with violent sexual predators and they had limited experience with the risk assessment instruments. The report notes that it is not possible for a psychologist to be certified by the American Psychological Association as having a speciality in this area, since such a speciality has not yet been defined or approved. The Department is still in the process of developing formal selection criteria for its expert evaluator and mandatory training. This is a clear indication to me that the law has leap-frogged over sound medical and scientific principles, and embraced concepts founded largely on hope, faith and fear.
NOTES
[1] Currently, the Jimmy Ryce Act appears as sections 394.910-.930, Florida Statutes (1999). See infra note two.
[2] The Act was originally found in sections 916.31-916.49, Florida Statutes (Supp.1998) which became effective on January 1, 1999. See Ch. 98-64, § 24, at 276, Laws of Fla. Shortly thereafter, the Legislature amended and renumbered the Act as sections 394.910.930, which are currently located in Part V, Chapter 394 of the Florida Statutes entitled "Involuntary Civil Commitment of Sexually Violent Predators." See Ch. 99-222, § 1, at 961, Laws of Fla. These changes became effective on May 26, 1999. See Ch. 99-222, § 29, at 972, Laws of Fla. Although the Legislature amended the Act, the amendments did not change the particular statutory provisions which apply to the instant case. Therefore, we will cite to the most recent statute found in chapter 394 in this opinion even though the proceedings in the instant case were actually brought against the appellant pursuant to chapter 916.
[3] The prior Act provided in section 916.33(1), Florida Statute (Supp.1998) that the notice must be given 180 days before release.
[4] The court in Collie was faced with the issue whether the appellant's classification as a sexual predator violated the constitutional prohibition against double jeopardy. The court cited United States v. Ursery, 518 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996) and adopted the two-prong test developed by the court in that case. The court in Collie stated: In Ursery, the Supreme Court developed a two-prong test to determine whether a regulation is punitive for double jeopardy purposes. Under the first prong, the court must look at the legislative intent to determine whether the regulation was intended to be punitive or remedial. If the legislative intent was for the regulation to be punitive, then the analysis is complete and the regulation violates double jeopardy. However, if the legislative intent was for the regulation to be remedial, the court must evaluate the second prong which is whether the regulation is so punitive in fact that it may not legitimately be viewed as remedial in nature.
Collie, 710 So.2d at 1008-1009 (citation omitted).
The Court in Hendricks adopted the same test but required the party challenging the constitutionality of the statute to prove the second prong by the clearest proof.
[5] Some of those procedural and substantive rights include the following: (1) the right to counsel, see §§ 394.915(3), 394.916, Fla. Stat. (1999); (2) determination of probable cause, see § 394.915, Fla. Stat. (1999); (3) application of the Florida Rules of Civil Procedure and the Florida Evidence Code, see § 394.9155(1),(2), Fla. Stat. (1999); (4) trial by jury, see § 394.916, Fla. Stat. (1999); and (5) the right to subsequent examinations and hearings to determine the right to release, see §§ 394.918-.920, Fla. Stat. (1999).
[6] The Act currently provides in section 394.911, Florida Statutes (1999) that "[l]ess restrictive alternatives are not applicable to cases initiated under this part." This statute became effective after the appellant's commitment.
[7] In order to establish that an individual is a sexually violent predator, the jury must unanimously find by clear and convincing evidence that the person has been convicted of a sexually violent offense such as: murder while engaged in a sexual battery; kidnapping or false imprisonment of a child and the commission of a sexual battery or a lewd or indecent assault or act on the child; sexual battery, etc. See § 394.912(9), Fla. Stat. (1999). In addition, the jury must unanimously find that the person "[s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment." § 394.912(10)(b), Fla. Stat. (1999).
In order for the jury to conclude the defendant has a mental abnormality, the jury must find that the person has a mental condition affecting his or her "emotional or volitional capacity which predisposes the person to commit sexually violent offenses." § 394.912(5), Fla. Stat. (1999). The jury must further find that the person is likely to engage in acts of sexual violence, which means that "the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others." § 394.912(4), Fla. Stat. (1999).
[8] Due process under the United States and Florida Constitutions requires that when an individual's interest may be adversely affected by legislative action, he or she must be given adequate notice of what is prohibited by the legislation. See U.S. Const. amends. V and XIV; Art. I, § 9, Fla. Const.; Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla.1984). Thus, the language of the statute must be "sufficiently definite to apprise those to whom it applies of the conduct it prohibits." Bertens v. Stewart, 453 So. 2d 92, 93 (Fla. 2d DCA 1984); see also State v. Wershow, 343 So. 2d 605 (Fla.1977).
[9] The guarantee of due process under the Florida Constitution requires compliance with substantive and procedural due process. See Department of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla.1991). Although each plays a distinct role in protecting an individual's right to due process, they frequently overlap and many cases do not adequately distinguish between the two. Substantive due process "protects the full panoply of individual rights from unwarranted encroachment by the government." Id. at 960. Substantive due process implicates the vagueness doctrine. Id. (citing Perkins v. State, 576 So. 2d 1310 (Fla.1991); State v. Bussey, 463 So. 2d 1141 (Fla.1985); State v. Barquet, 262 So. 2d 431 (Fla.1972)).
[10] The term "likely" is also typically defined in dictionaries as meaning "probably." See e.g., American Heritage Dictionary 731 (2d ed. 1985) ("Possessing or displaying the qualities or characteristics that make something probable."). Black's simply defines the word as meaning "[p]robable.... Likely is word of general usage and common understanding, broadly defined as of such nature or so circumstantial as to make something probable and having better chance of existing or occurring than not." Black's Law Dictionary 925 (6th ed.1990) (citations omitted).
[11] Regardless of whether we ascribe a meaning of highly probable or probable, the term "likely" is sufficiently clear and understood by men and women of common intelligence to mean having a better chance of existing or occurring than not. Therefore, further definition of the term "likely" in a jury instruction as meaning "more likely to happen than not" or "having a better chance of existing or occurring than not" as argued by the appellant would add nothing to the plain and common meaning of the term and would be unnecessary.
[12] In Thomas v. State, 443 So. 2d 406 (Fla. 4th DCA 1984), the court noted that the Legislature amended section 394.467 to embrace the "manifestly dangerous" test.
[13] The court cited Hendricks when it stated that "[t]he high court approved this statutory formula even though dangerousness was expressed in terms of a qualifying mental disorder giving rise to a likelihood of future criminal conduct." Hubbart, 81 Cal. Rptr. 2d 492, 969 P.2d at 600. The court also noted the following:
Civil commitment statutes have long been upheld where dangerousness is expressed in terms of a "probability," "threat," or similar risk that a person who is presently mentally disturbed will inflict harm upon himself or others in the future if not confined. (Heller, supra, 509 U.S. 312, 317-318, 113 S. Ct. 2637[, 125 L. Ed. 2d 257] [mentally retarded and mentally ill persons who pose "`a danger or a threat of danger'" to self or others]; Allen v. Illinois (1986) 478 U.S. 364, 366, fn. 1, 106 S. Ct. 2988, 92 L. Ed. 2d 296 [mentally disordered sex offender with "`criminal propensities to the commission of sex offenses'"] (Allen); Greenwood v. United States, supra, 350 U.S. 366, 368, fn. 3, 76 S. Ct. 410, 100 L. Ed. 412 [mentally incompetent prisoners who "`will probably endanger the safety'" of others]; see Minnesota v. Probate Court (1940) 309 U.S. 270, 273-274, 60 S. Ct. 523, 84 L. Ed. 744 [statute providing for commitment of sex offenders who are "`likely to attack' "or injure others].)
Id. at 600 n. 26.
[14] Notice, Fla. B. News, Feb. 15, 1999, at 16.
[15] The court noted in Standard Jury Instructions Criminal Cases (99-2), 25 Fla. L. Weekly at S476, S478, ___ So.2d ___, ___, 2000 WL 766602 (Fla. June 15, 2000) that "while Jimmy Ryce Act proceedings are civil in nature, it was the criminal jury instruction committee that prepared, submitted, and urged the instructions and form at issue here."
[16] Proposed Amendments to the Standard Jury Instructions, Fla. B. News, Aug. 1, 1999, at 18.
[1] See Robert Bilbrey, Civil Commitment of Sexually Violent Predators: A Misguided Attempt to Solve a Serious Problem, Journal of The Missouri Bar, Vol. 55, No. 6 (Nov.-Dec.1999) http://www.mobar.org/journal/1999/novdec/bilbrey.htm>.
[2] § 394.918, Fla. Stat.
[3] See, e.g., Cuda v. State, 639 So. 2d 22 (Fla. 1994) (terms "improper" and "illegal" as used in statute making it a crime to financially exploit aged persons or disabled adults were unconstitutionally vague); Brake v. State, 746 So. 2d 527 (Fla. 2d DCA 1999) (crime of luring a child into a dwelling or conveyance for "other than a lawful purpose" was unconstitutional; term "other than a lawful purpose" failed to give adequate nature of proscribed conduct).
[4] See, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (requiring elevated standard of proof in parental rights termination proceedings to alleviate possible risk that a factfinder might decide to deprive an individual of a fundamental interest based solely on a few instances of unusual conduct or idiosyncratic behavior); Dept. of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla.1996) (where proceedings implicate the loss of one's livelihood, an elevated standard of proof is necessary to protect the rights and interests of the accused).
[5] § 394.912(4), Fla. Stat.
[6] Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).
[7] The Sexually Violent Predator Program's Assessment Process Continues to Evolve, Report No. 99-36 (February 2000) http://info.med.yale.edu/external/pubs/ym ws98/scope>. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626575/ | 25 So. 3d 225 (2009)
STATE of Louisiana
v.
Ronald T. FONTENOT.
No. 09-624.
Court of Appeal of Louisiana, Third Circuit.
December 9, 2009.
Terry J. Johnson, Johnson & Vercher L.L.C., Lake Charles, Louisiana, for Defendant/Appellant, R. T. F.
John F. DeRosier, District Attorney Fourteenth Judicial District, Carla S. Sigler, Assistant District Attorney, Lake Charles, Louisiana, for Appellee, State of Louisiana.
Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
GENOVESE, Judge.
The Defendant, Ronald T. Fontenot, pled guilty to three counts of sexual battery, violations of La. R.S. 14:43.1. He was sentenced to ten years at hard labor on each count to run concurrently, without benefit of parole, probation, or suspension of sentence. The Defendant appeals, contending that his sentences are excessive. For the following reasons, we affirm.
*226 FACTS
Between May 1, 2005, and August 31, 2005, the Defendant, age 59 at the time, touched the victim, then a seven-year-old girl, on the buttocks and/or anus with his hand while throwing her into a swimming pool. On a separate and subsequent occasion, while swimming in the pool with the victim, between July 17, 2006, and July 18, 2006, the Defendant again touched the victim more than once on her anus and in her vaginal area. He also admitted that once he inserted his finger into her vagina. The Defendant told the victim not to tell anyone about these occurrences.
The Defendant was indicted on six counts of sexual battery. He originally pled not guilty and then changed his plea to guilty on three counts of sexual battery. The trial court ordered a pre-sentence investigation and set sentencing for June 4, 2008.
The trial court reviewed the pre-sentence report as well as a letter from the Defendant's counsel which included a report of the Defendant's psychological evaluation by Dr. Maureen Brennan dated January 9, 2007.[1] The trial court indicated that it had received a second letter from Dr. Brennan dated April 29, 2008. The second letter does not appear in the record. Neither the Defendant nor the State cites as error the trial court's consideration of this item that is not in the record. The trial court also considered, on behalf of the Defendant, letters from the Defendant's son and daughter, which likewise do not appear in the record.
The victim's grandmother testified at the sentencing hearing on the victim's behalf. The trial court received letters from the victim's counselor, her cousin, and her parents. A concerned friend also wrote a letter to the trial court, as did the victim. None of these letters appear in the record. At the sentencing hearing, the trial court addressed the aggravating and mitigating factors of La.Code Crim.P. art. 894.1. He noted that the penalty for the Defendant's crime had increased to provide for a twenty-five-year minimum sentence only a short time after the Defendant committed these offenses.[2]
Dr. Brennan's January 27, 2009 letter opined that the Defendant could be successfully treated on an outpatient basis. She believed that he represented "little risk to the community at large." Dr. Brennan suggested "lengthy incarceration can exacerbate the very issues that contributed to the acting out in the first place and actually increase, rather than decrease, the risk to the community." She recommended five to seven years of probation "to assure the opportunity to address these issues effectively," and four to five years without incarceration, despite the fact that said recommendations are not allowed by statute.
At the sentencing hearing, the trial court took note of Dr. Brennan's opinion and the letters submitted on the Defendant's behalf and stated:
[I]f [the victim] had not told somebody, there's no telling how many more times [the Defendant] would have improperly touched her and maybe he would have ended up exposing himself to her and doing something worse, because I think this is the way thosemy understanding *227 is the way child molesters oftentimes bring their victims, by repeatedly touching them and telling them they care about them and those types of things, until they can get themselves in a position where they can do more, and I think that's what we have here, even though the psychological testing did not indicate that [the Defendant] was a predator, necessarily, he put himself in those positions to where he can do the things that he did to her.
. . . .
And in your case,of course, I don't have anything else before me to indicate this . . . but there's [sic] some studies out there that show for every one child you molest there's [sic] lots ofthat you get caught molesting, that there are many, many others that have been molested and many other victims out there. . . . And it just seems unlikely that in the 60-something years that you've been alive that this is the first time that you've ever done something like this.
The trial judge repeated those sentiments at the hearing on the motion to reconsider his sentence, commenting:
I don't know how knowledgeable Dr. Brennan is about various studies, but I do know that Dr. John Simoneaux in Pineville is a psychologist that treats sex offenders and has indicated through various conferences that I've attended where he's presented that there are studies that show that there are many, many victims that lay in the wake each time an offender is charged; that there are many more victims than just the one that they're charged with. That's the studies that I've heard him repeat. If Dr. Brennan doesn't know about those, I'm sure Dr. Simoneaux's [sic] not making that up, so I'm not going toyeah, it doesn't matter to me whether she says she knows about that or not. That's something that I guess I'm familiar with through conferences that I've attended.
The trial court also told the Defendant's counsel, "[w]e don't know what he's done and so I think it's a good argument to make on behalf of your client because, you know, there's no proof that he's ever done that to anyone else . . . we don't know that for sure. . . . I mean your client denied at all touching this child at the beginning and then he ended up admitting it. So, you know."
The trial court sentenced the Defendant to the maximum of ten years at hard labor on each of the three counts, without benefit of parole, probation, or suspension of sentence, with the sentences to run concurrently.
ASSIGNMENT OF ERROR
The Defendant asserts that his sentences are excessive on three grounds, the same arguments that he made in his motion to reconsider his sentences. First, the Defendant argues that the trial court refused to accept him as a first offender by making inferences from unknown studies not introduced into evidence without giving the Defendant the opportunity to defend himself against the implication that he had committed these offenses on other, untried occasions. Second, the Defendant argues that the trial court erred in ignoring the goal of rehabilitation as reported by Dr. Brennan, instead, sentencing the Defendant solely for purposes of punishment. Finally, the Defendant contends that the trial court overstated the damage to the victim.
REFERENCE TO STUDIES NOT IN EVIDENCE
The Defendant asserts that the trial court's comments imply that he did not treat the Defendant as a true first offender with regard to his sentences and based his *228 sentences on studies which he had become familiar with at various conferences. However, the record contains no evidence of any such studies. The trial court's reference to and apparent reliance on evidence not in the record equates to taking judicial notice of the facts or opinions set out in the unidentified studies.
In order for the trial court to take judicial notice of an adjudicative fact, such as those set out as purported facts or conclusions in the mentioned studies, the fact must be "(1) [g]enerally known within the territorial jurisdiction of the trial court; or (2)[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." La.Code Evid. art. 201. The "fact" noticed by the court must form a "part of the common knowledge of every person of ordinary understanding and intelligence," and the "fact" must not be "subject to reasonable dispute[.]" Walker v. Halliburton Services, Inc., 93-722, p. 3 (La.App. 3 Cir. 3/1/95), 654 So. 2d 365, 368, writ denied, 95-1507 (La.9/22/95), 660 So. 2d 481.
The general public is not familiar with the theories of scientific and/or sociological studies like those referred to by the trial court. Further, studies of this type, simply because of their nature, can be highly susceptible to dispute. Thus, we find that the trial court erred in taking judicial notice of and/or referring to unidentified studies not in evidence that suggest that the Defendant may have committed prior acts of sexual battery. However, there is nothing in the record, or in the trial court's erroneous reference to unidentified studies not in evidence, that indicates that it sentenced the Defendant solely or particularly based on said studies.
This court has set out a standard to be used in reviewing excessive sentence claims:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So. 2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So. 2d 124, writ denied, 00-0165 (La.6/30/00); 765 So. 2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So. 2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So. 2d 331.
To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So. 2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled *229 that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So. 2d 1[, 3] (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784[, p. 2] (La.5/31/96), 674 So. 2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So. 2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So. 2d 1061.
The nature of the offense here is three counts of sexual battery against a child who was seven and eight years of age when the offenses occurred. The facts of the case indicate that the Defendant's grandchildren are the cousins of the victim, that the Defendant apparently went through a devastating divorce in 1998, and that he became a loner at that time. The present offenses were his first felony offenses. In 2003, he was fined for DWI. Dr. Brennan did not believe that the Defendant was a predator for whom there is no treatment, but rather, one who could be successfully rehabilitated. As the trial court noted, however, "it doesn't matter to [the victim], it doesn't make a difference to her whether [the Defendant is] on the far end of the scale of a sexual predator or whether [he is] an opportunist. She was molested." The Defendant admitted to three occasions of sexual battery in his plea agreement, but the victim, according to counsel for the State, "is insistent that it occurred six times." Thus, the Defendant potentially gained substantial benefit from his guilty plea.
Sexual battery of a child under the age of thirteen is an offense which our legislature intended to deal with quite seriously. The Defendant pled guilty to these acts occurring between May 1 and August 31, 2005, and July 17-18, 2006. The maximum sentence on those dates was ten years at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:43.1. Only about a month later, on August 15, 2006, a statutory revision became effective, increasing the minimum sentence for sexual battery to twenty-five years at hard labor without benefits and the maximum sentence to life imprisonment. 2006 La. Acts No. 103, § 1. This increase in penalty for sexual battery indicates the legislative intent to deal harshly with those who violate La. R.S. 14:43.1 when a child under the age of thirteen is involved.
The Defendant pled guilty to three counts of sexual battery and was sentenced to the maximum ten years on each count. Had the sentences been imposed consecutively, as they could have been, the Defendant would have been facing thirty years at hard labor. As it is, the concurrent nature of the sentences reduces the Defendant's possible time in prison by two-thirds. Thus, while the Defendant may correctly say he received the maximum sentence on each count, the concurrent nature of the sentences dramatically reduces the time the Defendant will serve. He will, in effect, serve only one maximum sentence because the sentences were ordered to run concurrently.
The trial court, however, erroneously considered the sentences to equate to three and one-third years on each count. He did not consider the sentences he imposed to be the maximum allowed. At the hearing of the motion for reconsideration, the trial court stated "[t]he maximum sentence is 30 years. He got 10 years. So he really is on the lower end of the sentencing range that was available to the Court." Nevertheless, the trial court clearly stated that it sentenced the Defendant *230 "to serve ten (10) years, and that's without benefit of probation,-on each count concurrent, without benefit of probation, parole, or suspension of sentence." Though three ten-year sentences served concurrently are not the equivalent of three consecutive sentences of three and one-third years each, we do not find the sentences to be excessive.
Similar cases reflect that the Defendant's sentences are not excessive. The defendant in State v. Jaramillo, 06-1377 (La.App. 3 Cir. 3/7/07), 953 So. 2d 146, writ denied, 07-732 (La.11/2/07), 966 So. 2d 600, forced his ten-year-old male victim to perform oral intercourse and touched the victim's buttocks with his penis. The trial court sentenced the defendant to the maximum ten years.[3]
In State v. Baker, 42,428 (La.App. 2 Cir. 9/19/07), 966 So. 2d 124, a twenty-seven-year-old defendant was originally charged with one count of forcible rape and one count of sexual battery for placing his fingers inside the vagina and sucking or biting the breast of his thirteen-year-old victim, a close relative. The defendant was a first felony offender who pled guilty to the sexual battery charge, and the rape charge was dismissed. The second circuit noted that "maximum or near maximum sentences are reserved for the worst offenders and the worst offenses." Id. at 126. It noted that the defendant, who had two prior misdemeanor convictions for theft and disturbing the peace, "took advantage of a family member who was a minor." Id. at 127. The victim's mother encouraged the maximum sentence because of the long-term effects of the offense on the victim and the family. The court held that "[t]he sentence [was] tailored to both the offender and the offense." Id.
The defendant in State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So. 2d 201, was the live-in boyfriend of the mother of his two minor victims. The defendant touched the pubic, breast, and buttocks areas of the children while they were sleeping. The trial court "considered the [d]efendant's pre-sentencing investigation report, the class of offense, the nature of the offense, the seriousness of the offense, the manner in which the crimes were conducted, and [d]efendant's history" in sentencing the defendant to two ten-year terms at hard labor, to run consecutively. Id. at 203-04. This court affirmed, noting that the consecutive nature of the sentences was appropriate because the offenses "took place at different points in time and with different victims over a three-month period." Id. at 204.
Here, the victim was a family member, the cousin of the Defendant's grandchildren. The victim's grandmother testified at the sentencing hearing that the Defendant's actions had torn apart their family. The Defendant violated a relationship of trust with the victim and then told her not to tell anyone. In State v. Kirsch, 02-993, p. 8 (La.App. 1 Cir. 12/20/02), 836 So. 2d 390, 395, writ denied, 03-238 (La.9/5/03), 852 So. 2d 1024, the court stated, "[t]he jurisprudence indicates that maximum, or nearly maximum, terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile." Here, the trial court considered the victim's age, vulnerability, and relation to the Defendant as aggravating factors. In the case at bar, the totality of these circumstances justifies the imposition of *231 the maximum sentence. The facts show that the three concurrent ten-year sentences at hard labor, without benefit of parole, probation, or suspension of sentence, are not excessive, even considering the Defendant's status as a first offender, and even disregarding the unidentified studies to which the trial judge referred.
SENTENCING FOR PUNISHMENT VS. REHABILITATION
The Defendant argues that the trial court erred in viewing the purpose of La. R.S. 14:43.1 as being for punishment only, thereby ignoring the goal of rehabilitation despite the report of Dr. Maureen Brennan. For the reasons set forth above, we find that the Defendant's sentences are not excessive. The trial court considered Dr. Brennan's letter and sentenced the Defendant to a total of ten years at hard labor rather than the possible total of thirty years to which he could have sentenced that the Defendant by imposing consecutive sentences. The Defendant's sentence does not ignore the goal of rehabilitation, but rather enforces the legislative purpose to provide severe penalties for sex offenders.
OVERSTATED DAMAGE TO THE VICTIM
Lastly, the Defendant argues that the trial court erred in sentencing him because it overstated the damage to the victim.[4] According to the Defendant, the victim has continued to do well in school and has required only six months of counseling at a cost of $315. The Defendant complains of the trial court's comments at the sentencing hearing:
[T]hat child is going to suffer in the future. That child is going to havewe won't know for years and years and years the impact of what [the Defendant] did to her is going to have on her. . . . [I]t oftentimes leads to these you know, to drug abuse, trying to put that out of their minds, drug addiction, promiscuity, difficulty in relationships, having a hardnot trusting men, just all kind of problems that will last the rest of her life. And so she's been scarred for life. . . .
The Defendant argues, "[i]f the victim was damaged as much as the court describes, there would be ongoing psychological counseling and extensive treatment."
The trial court correctly noted that the fact that the victim is still able to make good grades in school is to her credit, not to the Defendant's credit. The cases cited above do not indicate the level of damage experienced by the victims; they deal with the offenses and the offenders. The alleged lack of damage to the victim does not render the Defendant's sentences excessive.
CONCLUSION
We find that the trial court erred by referring to studies not in evidence. However, disregarding said studies entirely, we find that the facts in this case adequately support the trial court's sentencing of the Defendant to three concurrent ten-year terms at hard labor, without benefit of parole, probation, or suspension of sentence for three incidents of sexual battery against this victim, who was seven and eight years of age at the time of the offenses. The nature of the Defendant's offenses, the legislative intent to deal harshly with sex offenders, and the prior case law support the sentences imposed by the trial court, even for a first offender. Consequently, we find that the Defendant's sentences are not excessive.
*232 DISPOSITION
The Defendant's sentences are affirmed in all respects.
AFFIRMED.
NOTES
[1] Although the trial court referred to a letter dated January 9, 2007, a letter from Dr. Brennan dated "27 January 2009" was admitted into evidence at the hearing on the motion to reconsider sentence.
[2] 2006 La. Acts No. 103, § 1, effective August 15, 2006, increased the penalty for sexual battery of a child under the age of thirteen from a maximum of ten years to a minimum of twenty-five years.
[3] The Jaramillo defendant did not allege on appeal that his maximum sentence was excessive, but rather claimed that the evidence was insufficient to convict him. Thus, the opinion does not analyze why the maximum sentence was imposed.
[4] The trial court indicated that this argument "shocked" him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626557/ | 767 So. 2d 839 (2000)
STATE of Louisiana
v.
Tyrone CARTER.
No. 00-KA-145.
Court of Appeal of Louisiana, Fifth Circuit.
July 25, 2000.
Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Allison Wallis, Nancy Miller, George Wallace, Jr., Assistant District Attorneys, Gretna, Louisiana, Attorneys for Plaintiff/Appellee.
*840 Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, Louisiana, Attorney for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and MADELINE JASMINE, Pro Tempore.
GOTHARD, Judge.
Defendant, Tyrone Carter, appeals his conviction and sentence on a charge of the second degree murder of Shonette McPherson. For reasons that follow, we affirm.
The facts show that Ms. McPherson did not return home on Thanksgiving night in 1997. Efforts by family members to contact Ms. McPherson on her pager were unsuccessful. With growing concern, relatives of the victim notified police that she was missing. Investigation of the incident showed that defendant was the last person with whom Ms. McPherson was seen. Defendant called police after seeing a report of Ms. McPherson's disappearance on the news. Defendant told police he had not seen the victim since Thanksgiving evening at about 5:30 p.m., at which time they had an argument and went their separate ways.
A few days later police discovered the burned remains of the victim's vehicle in a desolate section of New Orleans East. A melted Rubbermaid gasoline can was recovered from the floorboard on the passenger side of the car. Nearby, the officers recovered a blue cigarette lighter. A search of the area for some trace of the victim was unsuccessful.
Because the officers had information that defendant was seen driving the victim's car on Thanksgiving night, he was called in for questioning. Defendant had what appeared to be burns on his hands. When officers inquired about defendant's injuries, he stated that he assisted someone who ran out of gas, by pouring gasoline into the vehicle. The individual lit a cigarette and threw the match at defendant. Defendant was released after the interview.
Ms. McPherson's body was found on New Year's Eve. An autopsy revealed that the cause of death was any one of three gun shot wounds. The victim was shot in the head, neck and chest. One of the three bullets remained in the body.
Defendant made several statements to the police. Initially, defendant maintained that he last saw the victim on Thanksgiving Day when she left him to walk in the Fischer Project. He later recanted that statement and admitted he killed her, dumped the body, and set fire to the car.
In one statement, defendant first told police that he and the victim were engaged. He said he picked the victim up at about 4:00 p.m on Thanksgiving Day. The couple rode around and she told him she thought she might be pregnant, which angered him. At about that time, Ms. McPherson's pager went off. When the defendant asked who called, Ms. McPherson replied that it was "nobody". Defendant drove to the Circle K and called the number indicated as the calling number on the pager. He spoke to "Gerald" who informed the defendant that he had an intimate relationship with Ms. McPherson. Defendant asked Ms. McPherson to speak to Gerald, but she only smiled and walked away. Defendant went after her but she refused to get into the car and threatened to yell "rape" if he continued.
Defendant stated that he left and later went to a movie with "Darlene". Then he went to deliver a vehicle to a friend. After he dropped off the vehicle, he was taken to the Circle K about 1:00 a.m. He assisted someone who ran out of gas and burned his hands. Another friend, "Monica", picked him up at the Circle K. Later he went to Charity Hospital for treatment of the burns.
Subsequently, on December 30, 1997, defendant told police he would bring them to Ms. McPherson. In the next statement given shortly afterward, he admitted killing *841 her with a 357 magnum he intended to use for suicide. Ms. McPherson grabbed the gun from him twice in an attempt to prevent him from killing himself. When defendant tried once again to kill himself, Ms. McPherson attempted to prevent him and the gun went off six times. In a subsequent statement he admitted to burning the car.
After the statements, defendant was charged with Ms. McPherson's murder. He plead not guilty at his arraignment, after which he filed a motion to suppress all confessions. On November 12, 1998, the motion was partially heard in order to perpetuate the testimony of Willard Hill, a local attorney. Additional hearings on the suppression motion were held on July 9, August 9, and August 12, 1999. On August 17, 1999, the trial court denied the motion to suppress the statements. Subsequently, the state filed written notice of its intent to use oral statements made by the defendant and other witnesses at trial.
On August 31, September 1, and September 2, 1999, a trial on the merits was conducted, after which a twelve person jury found the defendant guilty as charged. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On the same day, defendant timely filed a written motion for appeal.
The only issue for review on appeal is whether the trial court erred in its denial of the motion to suppress the statements. Defendant's arguments concern the issue of whether various statements were given at a critical stage which triggered the right to counsel, and whether the statements were taken in violation of his right to counsel.
Although defendant made several statements to police, his arguments herein concern the statements given to Lieutenant Pernia and Colonel Gorman, wherein defendant confessed to the crime, after he allegedly invoked his right to counsel. Although he also gave previous statements to Detective Lawrence denying culpability, these were given before he consulted an attorney and do not appear to be at issue.
In connection with the motion to suppress the confession, testimony of local attorney, Willard Hill, was perpetuated on November 12, 1998. At that time Mr. Hill testified that the defendant, a former client, approached Mr. Hill when defendant had not yet been formally charged with any crime. Defendant was concerned that the police had questioned and released him three times and he was having difficulty getting employment because of the interrogation. He was also having difficulty with his girlfriend's family. Around the first of December, 1997, Mr. Hill spoke to the police officer identified by defendant as the person who questioned him. The conversation was unpleasant. Mr. Hill called a supervisor and said that he would be representing defendant. However, at that time there were no charges pending against defendant.
Mr. Hill further testified that from mid-December until mid-January, 1997, he was out of the office tending to a family crisis. About a week after the first contact with the police officers, Mr. Hill received a second call. He was informed that defendant was about to be arrested. The officers wanted to know if Mr. Hill could contact defendant. Mr. Hill replied that if he heard from defendant he would convince him to come in to police headquarters. Mr. Hill subsequently received a letter from police offering the same information.
On further questioning, Mr. Hill testified that there was no written contract of representation. He stated that "we hadn't gotten to that point yet". Mr. Hill considered defendant a client because he had represented defendant in a different case several years before. The only action he took on defendant's behalf in the case at bar was the conversation with police officers before defendant was charged with a crime, and a conversation with a reporter from the newspaper.
*842 On July 9, 1999, the court heard testimony on the motion to suppress from Colonel Walter Gorman, the commander of the crimes against persons section of the criminal investigations division in Jefferson Parish. He testified that he assisted the Gretna Police Department in the investigation of the disappearance of Shonette McPherson. He was aware that Mr. Hill had some contact with the Gretna Police Department, but understood that Mr. Hill was not representing the defendant. Colonel Gorman placed phone calls to Mr. Hill's office on two occasions, leaving messages both times. He also sent a registered letter. However, there was no response from Mr. Hill.
Colonel Gorman went to see defendant in the Jefferson Parish Correctional Center to tell defendant that efforts to reach Mr. Hill were unsuccessful. At that time Colonel Gorman ask defendant if Mr. Hill was his attorney. The defendant responded that Mr. Hill had represented him previously in another matter, and that defendant had consulted Mr. Hill before any charges were brought against him. However, defendant stated that he was unclear about the status because Mr. Hill had not been in touch with him. Defendant had been unable to reach Mr. Hill and defendant was unsure whether Mr. Hill was going to represent him in this matter. Defendant indicated to Colonel Gorman that he wished to cooperate with police to help find Ms. McPherson.
On August 9, 1999, the court heard testimony from Detective Wayne Lawrence, who testified that Mr. Hill contacted him to find out why the detective wanted to talk to the defendant again. According to the detective, he asked Mr. Hill if he was defendant's attorney and Mr. Hill replied that he was not. Mr. Hill explained that defendant was only at his office for a consultation.
Detective Lawrence testified he did not provide information to Mr. Hill because he was not representing defendant. After the detective obtained a warrant for the arson and auto theft, he called Mr. Hill and asked him if the defendant would turn himself in. At that time, Mr. Hill said he had not seen defendant since he last spoke to the detective. The detective gave Mr. Hill defendant's pager number because Mr. Hill did not know how to reach defendant. During that conversation Mr. Hill denied that he represented the defendant. Mr. Hill told the detective there was no agreement on the fee for representation. There was no further contact between Mr. Hill and Detective Lawrence, although the detective tried unsuccessfully several times to contact Mr. Hill in mid-December when warrants were issued for defendant's arrest.
On August 12, 1999, Mr. Hill again testified on the motion to suppress. At that time he stated that he called the detective to find out the defendant's status. He admitted he could not remember if he specifically told the officer he was representing defendant. Mr. Hill said that he usually says that he will be representing a client in such situations. He said that he "communicated the spirit of representing a client to this officer". He had a five minute conversation which was unhelpful because the detective was uncooperative. When Mr. Hill ended the conversation he called a supervisor to file a complaint. He again admitted that he had no retainer agreement with defendant. Defendant's mother came to Mr. Hill's office some time in December and said that she had no money so she could not hire him. Subsequently, defendant called Mr. Hill from jail in mid-January, and Mr. Hill told defendant that he could no longer represent him. Mr. Hill explained that a family crisis and his own illness prevented him from communicating the end of the representation to defendant earlier.
The court concluded it was not persuaded that Mr. Hill had an attorney/client relationship and noted inconsistencies in Mr. Hill's testimony in that regard. The trial judge found defendant had the opportunity to remain silent, that defendant was *843 reminded of Mr. Hill's possible availability and despite that, he wanted to speak. The trial judge found the confession voluntary. He found defendant intelligently and voluntarily waived his rights to have an attorney present at the questioning. The trial judge concluded defendant wanted to tell his story.
Evidence on the suppression motion was adduced at the hearing and at trial. In determining whether the ruling on defendant's motion to suppress was correct, the court is not limited to the evidence adduced at the hearing on the motion, but may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So. 2d 1222, 1223 (La.1979).
Colonel Gorman and Lieutenant Snow questioned defendant on two separate days; namely, December 31, 1997 and January 2, 1998. On December 31, defendant was questioned continuously from 4:21 p.m. to 6:58 p.m. At the beginning of questioning, defendant was fully informed of his Miranda[1] rights. He indicated he understood them and waived them. He also stated he had an attorney and he understood that if he could not afford an attorney one would be appointed for him. He specifically stated that although his attorney might be upset with him for talking to the officers, he still wanted to do so. Defendant denied that any threats, coercion, or force was used, stating the officers spoke to him "nice."
When Colonel Gorman and Lieutenant Pernia first approached defendant, he was in jail on charges of arson and possession of a stolen vehicle, charges stemming from the discovery of the victim's car. Colonel Gorman testified that he and Lieutenant Pernia advised defendant of his rights at the jail and at the investigation bureau where defendant was taken for questioning. When the officers went over the waiver form, defendant stated he was uncomfortable with reading his rights, indicating that Ms. McPherson was in the process of teaching him to read. It was for this reason that defendant's rights were recorded rather than having him sign the written form.
Colonel Gorman testified that at the time of the initial contact, there was no indication a crime had been committed and defendant was not a suspect, but only a party of interest in the missing person investigation. Nevertheless, the officer gave defendant his rights out of an abundance of caution since defendant was charged with other crimes. In State v. Weeks, 345 So. 2d 26, 28 (La.1977), the court explained that Miranda warnings must be given where the investigation of a crime has passed the investigatory stage and focused on the accused. The January 2 statements were clearly taken after defendant confessed his guilt for the instant offense. Defendant asserts that Colonel Gorman refused to admit defendant was a suspect during the initial questioning, referring to defendant only as a person of interest. It is of no moment whether Miranda warnings were required for both sessions since it appears from the record that the warnings were given on both dates.
After the first statement was taken on December 31, there was a gap of approximately one-and-one-half hours. Colonel Gorman testified that Lieutenant Pernia left the room and he, Colonel Gorman, sat with defendant and talked. Defendant spoke about his relationship with Ms. McPherson and then informed Colonel Gorman he had something to say. Defendant asked if Colonel Gorman wanted to call Lieutenant Pernia, and Colonel Gorman agreed. Lieutenant Pernia entered the room. When questioning resumed, defendant was reminded of the previously explained rights. He was specifically reminded that he had an attorney and a right to have that attorney present. Defendant was asked, "Do you wish to tell us something at this point, without your attorney present?" Defendant said, "yeah." *844 The next questioning took place twenty-four minutes later. At that point, defendant was again reminded of his rights. He was specifically advised of his right to remain silent and his right to an attorney. He was reminded that he had an attorney, but he agreed to speak to the officers. He denied that any pressure, threats, or coercion were used. The next questioning occurred approximately one hour later, after defendant showed police the location of the victim's body. Defendant denied that any force was used on him to get him to show the location or to do anything he did that night.
On January 2, 1998, the first statement was taken at 4:39 p.m. to 4:58 p.m. Defendant was fully advised of his Miranda rights, stated he understood them, and waived them. He stated he felt comfortable with the officers. He agreed that he contacted "Monica" the day of the interview, and asked her to tell Lieutenant Snow and Colonel Gorman he wanted to talk to them that day. The next statement was taken at 6:42 p.m. more than an hour later. At that time defendant was given the Miranda rights. He indicated these were the same rights given to him the first day he spoke to the officers and, although he had an attorney, he did not want to wait for the attorney in order to give a statement.
At trial, Colonel Gorman testified that before starting any formal interviews he advised defendant of his Miranda rights. Colonel Gorman asked defendant if he was interested in having an attorney present, and defendant said he was not interested. The officers then went to the office and started a tape-recorded interview where defendant was again advised of his rights and was asked if he wanted an attorney present. Defendant stated he understood his rights and waived them. He wanted to talk to police without an attorney. The interview ended around 7:00 p.m. Colonel Gorman next spoke with defendant discussing background information on defendant's relationship with Ms. McPherson. Defendant then said he had something to say. Defendant suggested Colonel Gorman call Lieutenant Pernia back into the office so that she could hear. At the time, Lieutenant Pernia was making telephone calls. At the beginning of each formal statement, defendant was advised of his rights. After defendant gave a third statement admitting Ms. McPherson was dead and he was responsible, he agreed to take the officers to the body. Defendant directed the officers to the location. Before bringing them to the body, he pointed out the location where he killed her, which was in Jefferson Parish.
On January 2, 1998, a second set of interviews was conducted. This resulted because defendant indicated he wanted to speak to the officers. Defendant was again advised of his rights. He stated that he understood them and waived them. While he was at the location of the body, he gave another statement.
Lieutenant Pernia testified she was involved in the investigation. She began the participation on December 30, 1997. She participated in taking defendant's statements. She took defendant's statement at approximately 10:23 p.m. on December 31, 1997 at the location where he dumped Ms. McPherson's body. Defendant was in the car with Lieutenant Pernia at the time. Defendant indicated on the tape that he was not forced to go to that location.
Defendant argues that LSA-R.S. 15:451 requires the state to prove beyond a reasonable doubt that the confession was freely and voluntarily given. Citing State v. Benoit, 440 So. 2d 129 (La.1983), he asserts that defendant must be able to understand the rights and to willingly give a statement. Defendant argues generally that in this case the totality of the circumstances indicate his confession was not free and voluntary, and the state failed to meet its burden since any waiver of the right to counsel was invalid in this case. Defendant does not specifically argue other factors negating the voluntariness of the confession *845 except the alleged invocation of the right to counsel.
We find from the record the confession was freely, voluntarily, knowingly, and intelligently made. However, the seminal issue is whether defendant's actions in consulting Mr. Hill, seeking his representation, and having Mr. Hill act on defendant's behalf by making telephone calls, constitutes defendant's invoking his right to counsel, thereby precluding interrogation. Although the thrust of defendant's argument below centered on the issue of whether Mr. Hill represented defendant, the proper question is whether defendant invoked his right to counsel.
Defendant argues that, because he was a suspect, his interrogation was a critical stage triggering the right to counsel. He asserts that under Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), the prohibition against questioning defendant without an express, knowing, intelligent and voluntary waiver by him exists automatically, and does not hinge on any assertion of rights by defendant. Further, he notes that despite Colonel Gorman's confusion as to whether Mr. Hill represented defendant, defendant invoked his right to counsel when he contacted Mr. Hill to represent him and had the attorney make three telephone calls on his behalf. These actions, according to defendant, constitute assertions and an invocation of the right to counsel. He also argues that once the right to counsel attached and defendant asserted his right to counsel, any subsequent waiver of rights pursuant to police-initiated interrogation was invalid pursuant to State v. Carter, 94-2859 (La.11/27/95), 664 So. 2d 367. Additionally, he states that once defense counsel has made himself available, the police are required to grant counsel reasonable access to defendant under State v. Serrato, 424 So. 2d 214, 221 (La.1982). In Serrato, the court held that if an identified attorney is available and seeking to render assistance, and the police neglect to inform defendant, any statement would be inadmissible.
The state argues that defendant never invoked his right to counsel, asserting that defendant's actions in contacting Mr. Hill to represent him and having Mr. Hill make three telephone calls on his behalf do not constitute invoking the right to counsel. Citing State v. Carter, supra, the state argues that after the right to counsel has attached, a suspect may waive his right to counsel during an interrogation, provided the waiver is knowing, voluntary, and intelligent. Further, the state adds the Carter court cited with approval Michigan v. Harvey, 494 U.S. 344, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990), for the proposition that nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing of his own to speak with police in the absence of an attorney. The state asserts that defendant's understanding of State v. Serrato, supra, is erroneous since in that case, unlike the case at bar, the police denied the attorney access to his client while they continued to question defendant.
The state argues that in this case defendant agreed to come to the detective bureau before he was arrested for the instant offense. Defendant initiated contact with the police by having someone inform the police that defendant wished to speak to them again. The state asserts, and we agree, it is not disputed that the police informed defendant of his Miranda rights. Further, it has never been contended that defendant informed the police that he wished to have counsel present for any further questioning. It has also never been contended that Mr. Hill sought to confer with his potential client before defendant spoke to the police. Defendant's sole complaint is that Mr. Hill might in some sense represent defendant, and that therefore the police should have stopped all questioning of defendant because of the mere fact that defendant had a consultation with him.
*846 The state asserts that neither federal nor state law adopts this expansive view of enforcing the Sixth Amendment. The state notes that defendant validly waved his Miranda rights and his right to counsel. Whether the interviews with the police were critical stages of the proceedings, and whether defendant wished Mr. Hill to represent him does not resolve the correctness of the decision to admit defendant's confession, since defendant never invoked his right to counsel.
In State v. Loyd, 425 So. 2d 710, 716 (La.1982) (pre-trial rulings, Loyd I), conviction affirmed, sentence vacated, case remanded, State v. Loyd (Loyd II), 459 So. 2d 498, 504-506 (La.1984) (quoting Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378 (1981)), the Louisiana Supreme Court explained:
The restraints placed upon the interrogator when the suspect invokes his right to silence are to be contrasted with the more stringent safeguard called forth by his request for an attorney. In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the high court expressly held that an accused, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."
In State v. Campbell, 94-1140, 673 So. 2d 1061, 1068 (La.App. 3 Cir. 3/13/96), writ denied, 96-1785 (La.1/10/97), 685 So. 2d 140, reversed on other grounds, Campbell v. Louisiana, 523 U.S. 392, 118 S. Ct. 1419, 140 L. Ed. 2d 551 (1998), the court considered the argument made by defendant that once an attorney was appointed for him, the sole contact should be through counsel. The court explained:
[in comparing the case to] Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), in which the United States Supreme Court held that even when an attorney had been contacted by a defendant's family member without the defendant's knowledge, and the attorney was hindered in his attempt to meet with the defendant by law enforcement, the defendant's confession was still admissible assuming a valid waiver. In reaching this conclusion, the Supreme Court specifically found that the prosecution had not yet commenced and therefore, the defendant's Sixth Amendment rights had not yet attached.
Although an attorney was appointed for the defendant as part of the arrest warrant and the defendant was informed of his right to have an attorney appointed, neither Chief Deshotel nor Deputy Aucoin informed the defendant that an attorney had been appointed. Defendant contends that, once a defendant has an attorney, "the sole contact between the state and the defendant should be through the defendant's counsel." We do not find that the protection of the defendant's Sixth Amendment rights requires such a procedure. See State v. Carter, 94-2859 (La.11/27/95); 664 So. 2d 367.
Therefore, we do not find that the defendant's Sixth Amendment right to counsel has been violated in that it had not yet attached when the spontaneous inculpatory statements were made. Even assuming for argument that his right had attached, we still find that, based on the decision in Carter, his right has not been violated.
In the instant case, even assuming defendant's Sixth Amendment right attached, under State v. Carter, supra, 94-2859, 664 So.2d at 382, the right to counsel could still be waived. The Carter court held:
Therefore, we conclude the right to counsel under Art. I, Sec. 13 of our constitution and the right to counsel under the Sixth Amendment are coextensive in scope, operation, and application. The Sixth Amendment jurisprudence predating our state constitution, as well *847 as later U.S. Supreme Court decisions explaining those cases, make clear that a defendant can validly waive his Sixth Amendment right to counsel under certain circumstances. We hold the same principle applies to the right to counsel under La. Const. Art. I, Sec. 13. Because our constitution can give no less protection than is afforded by the United States Constitution, we are additionally bound by the Court's holding in Michigan v. Jackson [475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986)], that once defendant's right to counsel has attached, if he makes an assertion or invocation of this right, any waiver he would later make in response to police-initiated interrogation will be considered invalid, regardless of whether the waiver would normally meet the standards of a knowing, intelligent and voluntary waiver. Where defendant's right to counsel has attached but he has not made an assertion or invocation of his right to counsel, a waiver in response to police-initiated interrogation can be considered valid provided it is knowing, intelligent and voluntary.
(Footnote omitted)
In State v. Hattaway, 621 So. 2d 796, 798 (La.1993), overruled in part, State v. Carter, 94-2859 (La.11/27/95), 664 So. 2d 367, questioned, State v. Taylor, 93-2201 (La.2/28/96), 669 So. 2d 364, the Louisiana Supreme Court previously concluded the state violated defendant's right to counsel when it unlawfully removed him from the trial venue without notice to his appointed counsel or to the trial court. Under these circumstances the state could not obtain a valid waiver or communicate with defendant except through the medium of defense counsel. The Louisiana Supreme Court held that once adversarial proceedings began, and counsel had been appointed, defendant was entitled to counsel under the Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Louisiana State Constitution. State v. Hattaway, supra, 621 So.2d at 814. However, in State v. Carter, supra, 94-2859, 664 So.2d at 374, the Louisiana Supreme Court overruled State v. Hattaway, supra, in part insofar as it applied to overt as opposed to covert interrogation, thereby distinguishing the type of interrogation.
The record discloses the interrogation in the instant case was overt. Colonel Gorman testified he made several attempts to contact Mr. Hill. Mr. Hill did not leave any instructions that defendant not be questioned. If counsel alerts police officers to the representation and instructs the officers that defendant is not to be interrogated, police officers may not initiate questioning or breach this request. State v. Trevathan, 414 So. 2d 316, 319 (La.1982). In that case retained counsel instructed police not to interrogate defendant without the presence of an attorney. The court held there was no valid waiver of defendant's right to the assistance of counsel where police ignored the instruction. Compare, State v. Dixon, 527 So. 2d 401, 402-403 (La. App. 4 Cir.1988), writ denied, 537 So. 2d 1158 (La.1989), wherein a lawyer was sent by defendant's mother to the police station to inquire as to why defendant had been asked for an interview. The testimony was conflicting as to whether the attorney was acting as a friend or in a representative capacity. Defendant was subsequently questioned and waived Miranda rights. Defendant argued the police should not have questioned him without first contacting his attorney. The court accepted the trial judge's finding that the attorney was acting in a representational capacity and held that defendant never invoked his right to counsel. It further found the confession was freely, voluntarily, knowingly, and intelligently made.
Here, defendant was given the opportunity to wait for Mr. Hill's appearance and chose not to do so. It appears evident that defendant wanted to confess, having also confessed to "Monica" and his mother.
*848 In State v. Serrato, supra, 424 So.2d at 220-221, the court held that police officers must grant defendant reasonable access to counsel once counsel is available, and that defendant must be informed that he has a lawyer seeking to aid him. In the instant case, the audio-taped interview and the testimony appear to indicate that defendant was never denied access to counsel, and instead was reminded of Mr. Hill's presence.
In an earlier Louisiana Supreme Court case, consistent with State v. Carter, supra, the court held that when defendant knows an attorney has been hired or appointed, he can still waive counsel's presence. State v. Harper, 430 So. 2d 627, 634 (La.1983). In that case, defendant was present in court when counsel was appointed. Before giving a statement, he was informed he was free to consult with his attorney before making statements and that he could end the interview at any time. The fact that defendant had an attorney, with whom he had not conferred, did not prevent police from getting a statement from defendant without prior notice to, or consent of, the attorney. Defendant could still waive his Sixth Amendment right to legal representation after the commencement of adversarial proceedings. We believe in this case defendant did just that. Accordingly, we find no merit in this argument.
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); and State v. Weiland, 556 So. 2d 175 (La. App. 5 Cir.1990). In that review we find that defendant was not informed of the prescriptive period for filing post-conviction relief.
At the time of sentencing, LSA-C.Cr.P. art. 930.8 provided for a two-year prescriptive period.[2] The trial court is hereby ordered to inform defendant of the provisions of Article 930.8 by sending appropriate written notice to defendant within ten days of the rendition of this court's opinion and to file written proof in the record that defendant received the notice. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So. 2d 1071, 1076, writ denied, 98-1032, (La.9/18/98), 724 So. 2d 753.
For the foregoing reasons the defendant's conviction and sentence are affirmed.
AFFIRMED WITH ORDER.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 444-445, 86 S.Ct., 1602, 1612, 16 L. Ed. 2d 694 (1966).
[2] 1999 La. Acts No. 1262, effective August 15, 1999. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626626/ | 356 S.W.2d 436 (1962)
Frank BEYER, Appellant,
v.
The STATE of Texas, Appellee.
No. 34082.
Court of Criminal Appeals of Texas.
January 10, 1962.
Rehearing Denied March 28, 1962.
Gib Callaway, Brownwood, Schlesinger, Goodstein & Semaan (On Appeal Only), San Antonio, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Judge.
The offense is cattle theft, with a prior conviction for an offense of like character alleged for enhancement; the punishment, ten years.
Sam C. Cathey testified that sometime ago he had been in the cattle business; that two *437 years previously his son took over the business; that the cattle on the Cathey place and on the appellant's adjoining property became mixed because the fence was in bad repair; that while the Catheys and appellant were separating the cattle before testing them for brucellosis he claimed the cow in question, stating that it belonged to his son, along with two other cows, at which time appellant told him to take the other two cows if they were his, but refused to surrender the cow in question; that he recognized the cow as belonging to his son because he raised her and recognized the "dollar mark" brand on her right hip; that she had been recently branded on the jaw with appellant's "J F" brand and her horns and ear had been recently cut; that the two cattle appellant surrendered to him had been recently ear-marked with what was apparently appellant's mark but the cow in question was the only one that was branded with the "J F" brand, and that the Catheys had sold no cows since 1954.
J. R. Cathey testified that the cow in question belonged to him, that the cow had his dollar mark brand on her right hip, and that he had never sold any cows to appellant.
Joe Townsend, sheriff of Brown County, testified that he picked up the cow in question in appellant's pasture after a complaint was filed by S. C. Cathey, that the cow had horns that had been recently tipped and fresh ear-marks, that she had a fresh "J F" brand on her jaw and a dollar mark brand on her right hip, and that the dollar mark brand was dim and hard to make out before the hair was sheared away.
Ben Tongate, Bill Strickland and Billie Porter testified that they had examined the cow in question and were of the opinion that the brand on her left hip was the Cathey dollar mark brand.
Chester Davis, testifying for appellant, stated that he had worked for him and that the cow in question had been in appellant's pasture and he had treated it for screw-worms a year before.
Mrs. W. C. Lynch testified that she had leased to appellant the pasture adjoining the Cathey place in September, 1959, that she was familiar with appellant's cattle, and that the cow in question was one of the cattle that appellant originally put into the pasture at the time it was leased.
Jessie Davis testified that he sold cattle to appellant in 1959 of the same type as the cow in question.
Seaburn Garwin testified that he hauled some cattle for appellant on February 2, 1961, to the Yeager sales barn to be tested for brucellosis, that they were of the same type as the cow in question, and that appellant branded and tipped the horns of four or five of these cattle on that date.
Leonard Greer testified that he received a commission for the sale of some cattle from Jessie Davis to appellant in 1959, which cattle were of the same type as the cow in question. He further testified that the brand on the cow in question was not a dollar mark brand but a figure eleven brand.
Appellant, testifying in his own behalf, said that he bought the cow in question from Jessie Davis in 1959, that the brand on the cow's hip was a figure eleven instead of a dollar mark and was on the cow when he bought her.
The jury resolved the disputed issue against appellant. We will discuss the contentions advanced by appellant in brief and argument.
We are met at the outset with the contention that the court erred in accepting the jury's verdict and rendering judgment thereon. Among the forms of verdict submitted was one finding appellant guilty of the primary offense alone and one finding him guilty of the primary offense and further finding that he had been convicted in the prior case alleged for enhancement. The jury returned both verdicts signed by the foreman. The first fixed appellant's punishment at three years, while the second, *438 under the terms of Article 62, Vernon's Ann.P.C., fixed no punishment. The judgment of the court, based upon these verdicts, was that appellant be confined for a period of ten years.
It is apparent that the court disregarded the first, accepted the second, and gave application to Article 62, supra, in fixing the punishment.
It is appellant's contention that, since the court accepted both verdicts, this made them so uncertain and contradictory as to not support a judgment. The State contends that, even though the court should not have accepted both verdicts, it is within the power, and becomes the duty of this Court, to reform the judgment so as to make it conform to the verdicts in question. Since the court accepted verdict #1, which in effect found that appellant was not the same person who had been convicted in the prior case alleged for enhancement, this Court must accept such finding and cannot uphold the ten-year judgment imposed by the court. But it does not necessarily follow that we must reverse the conviction because we have a finding of guilt as to the primary offense plus the fixing by the jury of a definite term of imprisonment. Our attention has been directed to no case directly in point. After careful consideration, we have concluded that it becomes our duty to reform the judgment to find appellant guilty of the primary offense and give application to that portion of the verdict which fixes his punishment at confinement for three years. The judgment is reformed so as to provide for a punishment of three years instead of ten years, and the sentence is reformed to read "not less than two (2) nor more than three (3) years." It is so ordered.
Having disposed of the most difficult question in the case, we pass on to a consideration of the other contentions advanced by appellant.
Appellant contends that the evidence is insufficient to support the conviction and cites Darnell v. State, 43 Tex. Crim. 86, 63 S.W. 631; Moran v. State, 94 Tex. Crim. 55, 249 S.W. 474; Enox v. State, 131 Tex. Cr.R. 551, 101 S.W.2d 243; and Ramirez v. State, 147 Tex. Crim. 218, 179 S.W.2d 973, to support his contention.
In Darnell, supra, the animal was known in the community to be a stray, and appellant took it under the honest belief that he had a right to take it. In Moran, supra, appellant took a cow and calf off the range under the belief that the cow was one he had turned out as a heifer and he surrendered her to the prosecutor before any criminal action was instituted. The Court, through Judge Morrow, held that the circumstances which led appellant to believe the cow belonged to him were so strong as to put the question of fraudulent intent in such doubt that the Court could not affirm the conviction. In Enox, supra [131 Tex. Cr.R. 551, 101 S.W.2d 244], when the owner claimed the bull, appellant said, "Well, if he is yours, he damn sure isn't mine," and tried to buy the bull. The Court held the evidence insufficient to support the conviction because it did not show a distinct and conscious assertion of ownership by the appellant. In Ramirez, supra, the State failed to connect appellant with the cow that was stolen.
The State's evidence in the case at bar shows a branding and marking by appellant of a cow already bearing the Cathey brand plus a definite assertion of ownership on his part, and we are of the opinion that the evidence is sufficient to support the conviction.
Appellant contends that the court erred in excluding from evidence a check dated January 6, 1959, from appellant to Jessie Davis marked "For 51 big cows" for the reason that it fixed the date on which appellant purchased the cow in question. The record indicates that both appellant and Davis testified concerning the sale of cattle by Davis to appellant in 1959, and, as the check in no way shows that the cow *439 in question was among those for which the check was given, we can see no prejudicial error in the exclusion of it. For the same reason, there was no error in excluding from evidence the check dated February 2, 1961, appellant gave Seaburn Garwin for "hauling cows from Owens" to the Yeager sales barn.
Appellant contends that the court erred in excluding from evidence a Texas Animal Health Commission report regarding a brucellosis test given 21 head of his cattle on February 2, 1961, because such report corroborated appellant's evidence that he branded and cut off the horns of certain cattle on that date. The report, which is a part of the record before us, in no way shows that any cattle were branded or had their horns cut off on the date in question, and we are of the opinion that no error was committed in excluding it from evidence.
Appellant also complains that the court erred in refusing his requested charge to the effect that the jury could not consider his former conviction for cow theft as a circumstance affecting his credibility as a witness.
The court charged the jury that they could not consider appellant's former conviction, if any, in passing upon the issue of his guilt or innocence for the primary offense charged in the indictment, to which appellant made no objection.
We have been cited no authority and are aware of none which holds that the charge as given did not fully protect appellant's rights.
No reversible error appearing, the judgment as reformed herein is affirmed.
ON APPELLANT'S MOTION FOR REHEARING
DICE, Commissioner.
Appellant strenuously insists that we were in error in reforming the trial court's judgment so as to find appellant guilty of the primary offense of cattle theft and fix his punishment at confinement in the penitentiary for a term of three years as found by the jury in their verdict No. 1 returned under the first count of the indictment.
It is first contended that the two verdicts returned by the jury were nullities because they in effect found appellant guilty of two different felony offenses under one single indictment. Numerous cases are cited by appellant which support the proposition that an accused cannot be convicted of more than one offense under a single indictment.
While such is the rule in this State, appellant does not here stand convicted of two different offenses under the one indictment. In each verdict, the jury found appellant guilty of the primary offense of cattle theft. The finding of the jury in the second verdict that appellant had been previously convicted of cattle theft was not a finding of his guilt of another offense. The statutes, Articles 61-64, Vernon's Ann.P.C., authorizing enhancement of punishment upon proof of a prior conviction or convictions do not create an offense but merely prescribe a more severe punishment. 16 Tex.Jur.2d, par. 403, page 624; Ellison v. State, 154 Tex. Crim. 406, 227 S.W.2d 545.
Appellant next insists that we were in error in reforming the court's judgment because the two verdicts returned by the jury and accepted by the court were so indefinite, uncertain and inconsistent as to the punishment that they cannot support any judgment of conviction rendered thereon.
In support of his contention appellant cites certain decisions by this Court where it has been held that verdicts finding an accused both "guilty" and "not guilty"; assessing the punishment at a fine "and/or" confinement in jail; fixing two different punishments for the same offense or fixing a punishment in excess of that provided by law are too indefinite to support a judgment of conviction thereon.
*440 We have carefully reviewed the cases cited and remain convinced that the verdicts returned by the jury in the instant case were sufficient to support the judgment of conviction, as reformed by this Court, finding appellant guilty of the primary offense of cattle theft and ordering that he be punished by confinement in the penitentiary for three years as fixed by the jury in its verdict No. 1 which was returned into the court.
As heretofore pointed out, each verdict returned by the jury found appellant guilty of the primary offense of cattle theft. In verdict No. 1, the jury specifically fixed appellant's punishment at confinement in the penitentiary for three years. No punishment was fixed by the jury in the second verdict.
Remaining convinced that a proper disposition was made of the case upon original submission, the motion for rehearing is overruled.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
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