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4 So.3d 585 (2007)
LORENZO REESE
v.
STATE.
No. CR-05-1288.
Court of Criminal Appeals of Alabama.
January 12, 2007.
Decision of the alabama court of criminal appeals without opinion. Reh. denied.
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846 S.W.2d 593 (1993)
Mary BOOZIER, Appellant,
v.
Samuel HAMBRICK, Appellee.
No. 01-92-00730-CV.
Court of Appeals of Texas, Houston (1st Dist).
January 28, 1993.
*594 Benjamin L. Hall, III, John E. Fisher, Mark Thompson, Houston, for appellant.
Walter B. Wright, Houston, for appellee.
Before DUGGAN, DUNN and MIRABAL, JJ.
*595 MIRABAL, Justice.
Appellant Mary Boozier, an employee of the City of Houston, appeals pursuant to Tex.Civ.Prac. 51.014(5) from the trial court's denial of her motion for summary judgment[1] in a case brought against her for defamation, intentional infliction of emotional distress, and tortious interference with contract. We reverse and render.
The following facts are undisputed. Boozier is an airport police officer at Hobby Airport. Hambrick is a superintendent at Hobby Airport and, like Boozier, is employed by the City of Houston.
Boozier reported to her superiors that on April 5, 1990, Hambrick grabbed her buttocks as she walked by him. Boozier subsequently filed Class C misdemeanor charges of assault against Hambrick. After a jury trial in municipal court, Hambrick was convicted of assaulting Boozier and fined $200. The conviction was affirmed by the county criminal court at law.
The Aviation Department of the City of Houston also investigated the alleged incident. An investigator for the Aviation Department spoke to Boozier during the investigation. After concluding its investigation, the Department suspended Hambrick for 10 days without pay.
Prior to these events, Boozier had accused Paul Scherler, also a superintendent at Hobby Airport, of grabbing her buttocks. Hambrick, who was Scherler's superior, prepared a sworn statement for Scherler in which he concluded that he did not believe Boozier's allegation against Scherler. Scherler presented the statement to his superiors as part of his defense against Boozier's allegation, but the Department terminated Scherler. Scherler's appeal to the Civil Service Commission was denied despite Hambrick's sworn oral testimony at the Commission hearing.
Scherler subsequently sued Boozier in state district court for defamation, intentional infliction of emotional distress, and tortious interference with contract. Hambrick intervened as a plaintiff in that lawsuit. The trial court ultimately severed Hambrick's cause of action from Scherler's.
Boozier moved for summary judgment against Hambrick on the grounds of truth, official immunity, privilege, and estoppel. She also claimed that, as a matter of law, she could not have interfered with Hambrick's contract. The trial court denied her motion, and she now brings two points of error attacking that denial.
Before addressing her points, we first consider Hambrick's argument that Boozier has no standing to bring this appeal because she was sued in her individual, as opposed to official, capacity, and because the alleged acts for which she is being sued were "unofficial" acts not committed within the course and scope of her employment.
Section 51.014 of the Civil Practice and Remedies Code states in relevant part as follows:
A person may appeal from an interlocutory order of a district court, county court at law, or county court that: (5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. Tex.Civ.Prac. 51.014(5) (Vernon Supp.1993).
Boozier, as an employee of the City of Houston, is an employee of a "political subdivision of the state." Texas cities are political subdivisions of the State of Texas. Texas Nat'l Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 638 (1939); Houston Chronicle Pub. Co. v. Hardy, 678 S.W.2d 495, 501 (Tex.App. Dallas 1984, orig. proceeding), cert, denied, 470 U.S. 1052, 105 S. Ct. 1754, 84 L. Ed. 2d 817 (1985).
We disagree with Hambrick's argument that section 51.014 does not apply because *596 he sued Boozier in her individual capacity. The application of section 51.014 does not depend on whether the employee is sued in her individual or official capacity. It simply states that when the employee moves for summary judgement on an assertion of immunity and the motion is denied, the denial is reviewable by appeal. Tex.Civ. Prac. 51.014(5) (Vernon Supp.1993). The capacity in which the employee is sued may be relevant to the issue of what kind of immunity applies, if any, but that is an issue for the appellate court to determine when it hears the appeal. That issue is not determinative of whether there can be an appeal.
For a similar reason, we disagree with Hambrick that Boozier has no standing to bring this appeal because the alleged acts for which Hambrick sued her were "unofficial" acts committed outside the course and scope of her employment. The nature of her acts, i.e., whether they were official or unofficial, and whether they were committed within the course and scope of her employment, are issues relating to what kind of immunity, if any, applies. Again, however, the application of immunity is the matter to be determined in the appeal; it is not the determining factor in whether the appeal may be had in the first place.
We hold that, pursuant to section 51.014(5), Boozier has standing to bring this appeal.
However, we agree with Hambrick that Boozier does not have standing to argue on appeal any ground set out in her motion for summary judgment except that of immunity. We will not consider her arguments that her defenses of truth, privilege, estoppel, and no interference with contract as a matter of law entitled her to summary judgment. We interpret section 51.014(5) to mean that the assertion of immunity is the only ground for summary judgment whose denial we can review under that section. The clear purpose of the addition of subsection five to section 51.014 is that trial courts' decisions at the summary judgment stage as to whether an employee is immune from suit be reviewable on appeal. We do not read subsection five as allowing us to review whether the employee, notwithstanding immunity from suit in the first place, has established entitlement to summary judgment on grounds that would be available to any defendant whether he is an employee or not.
We find support for our interpretation in Justice Cornyn's concurring opinion in Travis v. City of Mesquite, 830 S.W.2d 94 (Tex.1992). Justice Cornyn wrote as follows:
[I]t is significant that the Legislature amended Section 51.014 of the Texas Civil Practice and Remedies Code in 1989 to allow a government employee an interlocutory appeal of an order denying a summary judgment based on official immunity... This rare opportunity for interlocutory appellate review reveals just how important the legislature considers the defense of official immunity for government employees to be. When successfully invoked, such procedure renders an officer's immunity an immunity from suit, not just immunity from liability... The very reasons for the grant of immunity are effectively unsalvageable if the official is determined to be immune from liability only after a trial on the merits ... The articulated basis for such immunity is: the importance of avoiding distraction of officials from their governmental duties; the desire to avoid inhibition of discretionary action; minimizing deterrence of able people from public service; avoiding the costs of an unnecessary trial; and insulating officials from burdensome discovery.
Id. at 102 n. 4 (citations omitted) (emphasis in original).
This language weighs in favor of our construction of subsection five's intent as being to provide appellate review only of the merits of an employee's summary judgment defense of immunity. Clearly, the same policy considerations articulated by Justice Cornyn do not apply to such defenses as truth, privilege, estoppel, and no tortious interference with contract as a matter of law.
In point of error one, Boozier contends that the trial court erred in denying *597 her motion for summary judgment because there were no genuine issues of material fact on her defenses of truth, official immunity, privilege, estoppel, and no tortious interference with contract as a matter of law. For the reason stated above, we will only consider the merits of her defense of official immunity.
Under this argument, Boozier notes that Hambrick's plea in intervention does not state whether he is suing her in her individual capacity or her official capacity. Boozier specially excepted to the plea, but the trial court denied the special exceptions. However, the defense of official immunity can apply to both suits brought against a defendant in his individual capacity, see Esparza v. Diaz, 802 S.W.2d 772, 778 (Tex.App.Houston [14th Dist.] 1990, no writ), and to suits brought against a defendant in his official capacity, see Bagg v. University of Texas Medical Branch, 726 S.W.2d 582, 586 (Tex.App.Houston [14th Dist] 1987, writ ref'd n.r.e.).
Official immunity is an affirmative defense. Perry v. Texas A & I University, 737 S.W.2d 106, 110 (Tex.App.Corpus Christi 1987, writ ref'd n.r.e.); Austin v. Hale, 711 S.W.2d 64, 66 (Tex.App.Waco 1986, no writ). As such, the burden is on the defendant to prove all of the elements. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Perry, 737 S.W.2d at 110.
To be entitled to a summary judgment on the affirmative defense of official immunity, a defendant must establish as a matter of law (1) that his action may be classified as quasi-judicial, and (2) that he acted in good faith within his authority as a quasi-judicial employee. Wyse v. Dept. of Public Safety, 733 S.W.2d 224, 227 (Tex. App.Waco 1986, writ ref'd n.r.e.); Austin, 711 S.W.2d at 66. We consider first whether Boozier established that her actions were quasi-judicial in nature.
The determination of whether an act is quasi-judicial depends upon whether the act is discretionary or ministerial. Esparza, 802 S.W.2d at 778; Wyse, 733 S.W.2d at 227. Discretionary acts are quasi-judicial. Id.; Austin, 711 S.W.2d at 67. An act is discretionary if it requires personal deliberation, decision, and judgment. Wyse, 733 S.W.2d at 227; Austin, 711 S.W.2d at 67. An act is ministerial if it "requirefs] obedience to orders or the performance of a duty as to which the actor is left no choice." Wyse, 733 S.W.2d at 227; Austin, 711 S.W.2d at 67.
When a police officer reports the misconduct of another to his or her superior, as Boozier did here, the officer performs a discretionary act. See Esparza, 802 S.W.2d at 779. Such an act, as well as the act of filing criminal charges, clearly calls for the officer's "personal deliberation, decision, and judgment"
We hold that Boozier's actions were discretionary, and thus quasi-judicial. We next consider whether Boozier acted in good faith.
Boozier attached her own affidavit to her motion for summary judgment. The affidavit includes testimony that serves as evidence she believes in the truthfulness of her allegations. Further, her affidavit states that, "As a police officer, for purposes of taking action regarding violations of criminal law, I am considered to be on duty 24 hours a day," and for that reason, she reported the incident and filed criminal charges.
Hambrick, however, also submitted an affidavit as evidence to support his response to Boozier's motion for summary judgment. In his affidavit, Hambrick states that Boozier's allegations are "outrageous lies." Hambrick denied, under oath, that he grabbed Boozier in the buttocks as she alleged.
Hambrick argues that a fact issue was raised by his affidavit regarding whether Boozier acted in good faith when she reported the alleged incident. In response, Boozier argues that Hambrick was estopped to deny the truthfulness of her allegation. For the reasons stated below, we agree with Boozier.
Boozier's summary judgment proof demonstrates that Hambrick was convicted in municipal court of assaulting Boozier in the *598 grabbing incident. It also demonstrates that Hambrick appealed his conviction to county criminal court at law, and that his appeal, which included four points of error, "came on for appellate review" and was unsuccessful; his conviction was affirmed.
As a result, Hambrick cannot contest the truthfulness of Boozier's allegation that he grabbed her buttocks. The rule and its rationale were explained in McCormick v. Texas Commerce Bank Nat'I Ass'n, 751 S.W.2d 887, 889-90 (Tex.App.Houston [14th Dist.] 1988, writ denied), cert, denied, 491 U.S. 910, 109 S. Ct. 3199, 105 L. Ed. 2d 706 (1989):
[A] collateral attack, an attack on the validity of a judgment in a suit not instituted for that purpose, is an impermissible attempt to avoid the binding effect of a judgment. The federal courts have also concluded that a prior conviction may work an offensive collateral estoppel in a subsequent civil proceeding if the identical issues for which estoppel is sought were litigated and directly determined in the prior criminal proceeding. The doctrine is equitable; because of the existence of a higher standard of proof and greater procedural protection in a criminal prosecution, a conviction is conclusive as to an issue arising against the criminal defendant in a subsequent civil action.
Where (i) the issue at stake was identical to that in the criminal case, (ii) the issue had been actually litigated, and (iii) determination of the issue was a critical and necessary part of the prior judgment, the judgment is established by offensive collateral estoppel ... When the requirements are satisfied, a party is estopped from attacking the judgment or any issue necessarily decided by the guilty verdict.
(citations omitted).
In applying the three-part test enunciated above, we conclude that, first, the issue at stake here, whether Hambrick grabbed Boozier's buttocks, is the same issue decided in the criminal case against Hambrick. Second, clearly, that issue was "actually litigated" in the criminal trial; it was what the trial was all about. Third, determination of that issue was obviously a "critical and necessary part" of the judgment.
Accordingly, we hold that Hambrick's conviction for grabbing Boozier's buttocks is conclusive on that issue as it is presented here, in a subsequent civil proceeding.[2] Hambrick is estopped from denying that Boozier's allegations were truthful, and therefore his affidavit, which states that Boozier lied in making the allegations, does not raise a fact issue on the question of Boozier's good faith in making them.
We hold that Boozier presented summary judgment evidence proving all the elements of her affirmative defense of official immunity as a matter of law, and Hambrick failed to raise a fact issue in his response. Therefore, Boozier was entitled to summary judgment.
We sustain point of error one. Our disposition of Boozier's first point of error makes it unnecessary for us to rule on her second point of error, and we decline to do so.
We reverse the judgment of the trial court and render judgment for Boozier.
NOTES
[1] Under certain circumstances, section 51.014(5) allows the appeal of an interlocutory order denying a motion for summary judgment. The scope of section 51.014(5) is one of the issues decided in this appeal.
[2] We are cognizant of the rule that "a judgment is final for the purposes of issue and claim preclusion despite the taking of an appeal unless what is called an appeal actually consists of a trial de novo" (emphasis added). Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986); Jackson v. Smith Security Serv., Inc., 786 S.W.2d 787, 788 (Tex.App.Houston [1st Dist.] 1990, no writ). However, as indicated above, Hambrick's appeal of his conviction was an actual appeal, not a trial de novo.
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846 S.W.2d 641 (1993)
311 Ark. 656
The SEBASTIAN COUNTY CHAPTER OF The AMERICAN RED CROSS, Appellant,
v.
Wanda WEATHERFORD, Appellee.
No. 92-403.
Supreme Court of Arkansas.
February 1, 1993.
*642 Rex M. Terry, Fort Smith, Bruce Chadwick, Washington, DC, for appellant.
Oscar Tilley, Fort Smith, for appellee.
BROWN, jusuce.
This case concerns the Freedom of Information Act, and the appeal presents a single issue for consideration: whether a ground lease between the City of Fort Smith and the appellant, the Sebastian County Chapter of the American Red Cross, wherein the City charges Red Cross a one-dollar-per-year lease payment, qualifies as support by public funds. The circuit court found that it did. We hold that the finding was clearly erroneous, and we reverse and remand.
At a meeting of the Fort Smith Board of Directors on December 6,1983, a resolution was adopted authorizing a lease agreement between the City and the Red Cross. The agreement provided that the City would lease a lot to the Red Cross for a period of thirty years with an annual rental fee of one dollar. It further provided that the Red Cross would commence construction of a building for its offices and that the building would revert to the City upon the expiration of the lease.
On January 8, 1992, the appellee, Wanda Weatherford, directed a request to the Red Cross, seeking an opportunity to "inspect and copy all non-privileged documents" in its possession. The Red Cross denied the request, and Weatherford filed a petition for disclosure under the Arkansas Freedom of Information Act on the basis that the lease constituted public funding. She also contended that the American Red Cross received federal funding, but no proof of that fact was presented to the circuit court.
The Red Cross answered and asserted that the building was constructed on the leased property at its own expense and that at the expiration of the lease term the building and improvements would become the property of the City. The Red Cross also emphasized that it was not a public agency or an organization "wholly or partially supported by public funds or expending public funds" within the meaning of Ark.Code Ann. § 25-19-103 (Repl.1992). Further, the Red Cross contended that Weatherford was using the FOIA as a replacement for discovery related to a civil *643 action it naa pending against certain itea Cross officials.
At a subsequent hearing, the parties stipulated that, standing alone, $1.00 per year would be less than a reasonable rental value for the leased property. Also at the hearing, reference to a 1979 appraisal was introduced establishing the value of three lots, one-half of which constitutes the leased land in question, at $62,500. Counsel for Red Cross argued that the lease was an arms-length transaction[1] in that the City would ultimately gain the constructed Red Cross building valued at $60,000 in 1983 and the public had the use of the conference room in the building. He also argued that the one-dollar-per-year rental payment did not qualify as support by public funds. Following the hearing, the circuit court entered an order in which it first recognized that the lease required the Red Cross to build a building and that the public might obtain substantial benefit from the lease. The court then found that the fair market value of the leased property was "substantially more than $1 per year" and that the lease constituted a partial support by public funds, or an expenditure of public funds under § 25-19-103. Accordingly, the court ordered the Red Cross to open its non-exempt records for inspection pursuant to the FOIA.
The Arkansas Freedom of Information Act, Ark.Code Ann. § 25-19-101-25-19-107 (Repl.1992), was originally enacted as Act 93 of 1967. The legislative intent behind the FOIA is stated at Ark.Code Ann. § 25-19-102 (Repl.1992):
It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.
We have stated repeatedly that the FOIA should be liberally construed in order to accomplish the Act's laudable purposes. See, e.g., Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); North Central Assoc. of Colleges & Schools v. Troutt Bros, Inc., 261 Ark. 378, 548 S.W.2d 825 (1977); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). We have also remarked that we are aware of the need for a balancing of interests to give effect to the intent of the General Assembly, and we do so with a common sense approach. Bryant v. Mars, supra; Simmons First Nat'I Bank v. Liberty Mut. Ins. Co., 282 Ark. 194, 667 S.W.2d 648 (1984).
The FOIA opens to inspection and copying "all public records." Ark.Code Ann. § 25-19-105(a) (Repl.1992). As defined by Ark.Code Ann. § 25-19-103(1) (Repl.1992), "public records" means writings and other documentation "required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds." (Emphasis supplied.)
The issue in this appeal has been narrowly drawn by the parties and the circuit court, that is, what constitutes support by public funds? We focus first on the term "public funds," which is not defined in the FOIA. The definition given in Black's Law Dictionary, 6th ed. (1990), is "Moneys belonging to government, or any department of it, in hands of public official." Case law cited by Black's in support of this definition is relevant to the present case. See Droste v. Kerner, 34 Ill. 2d 495, 217 N.E.2d 73 (1966). In Droste, a taxpayer attacked the Illinois legislature's conveyance of land submerged beneath Lake Michigan to U.S. Steel on the basis of a statute that prohibited the "disbursement" *644 of "Public funds" and "public money" by state officials. The Illinois Supreme Court affirmed the trial court and rejected the taxpayer's attempt to translate 194.6 acres of land into "public funds." The court concluded that "the legislature could not have contemplated real estate when it referred to public funds, nor may this court torture the meaning of the words employed to arrive at that result." 217 N.E.2d at 78-79.
This court has dealt with several instances in which private entities have received public funds, and in those cases we have applied the FOIA. See City of Fayetteville v. Edmark, supra; North Central Ass'n of Colleges & Schools v. Troutt Bros, Inc., supra; Rehab. Hospital Services Corp. v. Delta-Hills Health Systems, Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). In City of Fayetteville v. Edmark, supra, outside attorneys were employed and paid by the City for their work. Records in their possession were held to be subject to FOIA disclosure, in part because they had been hired in lieu of the city attorney and paid with public funds.
An earlier case, North Central Ass'n of Colleges & Schools v. Troutt Bros., Inc., supra, involved a suit over the exclusion of a reporter from a state meeting of the North Central Association of Colleges and Schools, an organization that sets educational standards and policies for colleges and secondary schools. Dues from the Arkansas schools supported the NCA. Although the association was a private, nonprofit corporation, a factor stressed by this court in applying the FOIA was that over 90% of the money contributed by Arkansas schools to the NCA was public money.
In still another case, the Delta-Hills Health Systems Agency, Inc. had been created under federal law to assist the Arkansas State Health Planning and Development Agency in the regional review of certain proposed changes in health care. Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 400, 687 S.W.2d 840, 842 (1985). The primary source of funding for the Delta-Hills HSA was the federal government, which we held to be public funding. Because of this, we concluded that Deltaporation, was subject to the FOIA.
All of these cases dealt with direct public funding of some sort as the catalyst for the application of the FOIA. None of these cases expanded the term "public funds" to embrace an indirect benefit conveyed by government upon a private organization.
In the present case, we are mindful that under the Lease Agreement the City will at some point fall heir to the Red Cross building and, thus, receive the benefit of this improvement and that in the interim the public has use of the Red Cross conference room. However, we do not decide this case on that basis. The plain language of the FOIA confirms that the General Assembly intended that direct public funding be required. As previously noted, the FOIA applies to private entities "supported wholly or in part by public funds." Had the General Assembly intended to extend the FOIA to private organizations that receive any form of government assistance or subsidy, no matter how indirect, it would not have used the words "supported ... by public funds" to describe the nature of support necessary to trigger the Act.
Refusal to read indirect government benefits or subsidies into the term "public funds" is not at odds with a liberal construction of the FOIA. Were we to construe "public funds" to include an entirely separate and new category of government support, we would be amending the FOIA to expand its application significantly. For example, the Arkansas Code contains statutes designed as incentives to induce businesses to locate in the state. Arguably, the use of such devices for industrial development or other purposes constitutes indirect public support. Did the General Assembly, without saying so, intend the application of the FOIA to all private organizations which receive some government benefit, no matter how minor? We think not.
We, therefore, adopt a common sense approach, as we did in Bryant v. Mars, supra, and give the term "public funds" its plain and ordinary meaning which is best evidenced by Black's Law Dictionary and the definition "moneys belonging *645 to government. Here, no payment of government moneys was made to the Red Cross and the concomitant application of the FOIA should not transpire. In deciding as we do, we resist the temptation to legislate judicially. See Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). We do, however, recognize that all records pertaining to the Lease Agreement between the City and the Red Cross were available to Weatherford through an FOIA request to the City.
Reversed and remanded for an order consistent with this opinion.
DUDLEY, J., dissents.
DUDLEY, Justice, dissenting.
The plaintiff-appellee, Wanda Weatherford, filed a request of the defendant-appellant, Sebastian County Chapter of the American Red Cross, to "inspect and copy all non-privileged documents" in its possession. The request was filed under the authority of the Arkansas Freedom of Information Act. The local chapter denied the request. The plaintiff-appellee filed suit in circuit court for the information.
The Arkansas Freedom of Information Act gives a citizen the right of access to public records. Ark.Code Ann. § 25-19-105 (1987). "Public records" are the records of any organization that is "wholly or partially supported by public funds." Ark.Code Ann. § 25-19-103(1) (1987) (emphasis added).
The trial court held that the local chapter received a subsidy from the City of Fort Smith, and, since it was partially supported by public funds, the chapter was under an obligation to disclose its non-privileged records. The majority opinion reverses the trial court's ruling and, for all practical purposes, dismisses the request.
In 1983, the City of Fort Smith leased a lot to the Sebastian County Chapter of the American Red Cross for thirty years for one dollar per year. It is undisputed that the fair rental value of the lot is substantially more than one dollar per year. Thus, it is without dispute that the City has been and will continue to partially support the local chapter of the Red Cross. The majority opinion holds that the partial support provided by the Oity is not in the lorm oi public funds because it is only an "indirect benefit," and it is not "money."
The subsidy given to the local chapter is not an "indirect benefit." It is direct. Nothing more need be said.
The majority opinion construes the statutory phrase "public funds" to exclude a governmental subsidy by rental value. The majority opinion does so by holding that the phrase "wholly or partially supported by public funds" means wholly or partially supported by "moneys belonging to the government."
Without question, the word "public" is inclusive of government property. The only question is whether the word "funds" includes a subsidy by rental value. The answer to the question is found in our rules of statutory interpretation. The primary goal in the interpretation of statutes is to determine and to give effect to the intent of the General Assembly. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992). In determining that intent we give words their usual and ordinary meaning. Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 274 (1991). Finally, we have stated repeatedly that the Freedom of Information Act should be liberally construed in order to accomplish the act's laudable purpose. See, e.g., Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1990). An examination of the facts of this case in the light of the above rules of construction reveals the fault in the majority opinion.
Legislative Intent
Under the rationale of the majority opinion, if a governmental entity gives a $1,000 bill to another organization, that other organization must disclose its relevant records. However, if the governmental entity gives millions in value to subsidize another organization, that organization does not have to disclose its relevant records. These exempt subsidies might be in the form of goods or labor or services, or in the form of a check or warrant or draft or bond, or in the form of a conveyance or lease of either personal or real property anything so long as it is not "money." Such a rationale is not at all in keeping with the legislative intent.
*646 The Usual And Ordianry Meaning Of Words
If one were to ask an ordinary person, "Where do you keep your funds?" the answer might be, "In the bank," or it might be, "Partly in stocks, partly in bonds, some real estate, and some cash." Funds in the bank are only a credit. A credit is not money. Having one's funds in stocks and bonds would also be having one's funds in something other than money. "Funds" is the plural of "fund." Fund means a quantity of material resources maintained or available as a source of supply. Websters International Dictionary 920 (3d ed. 1961). On the other hand the word "money" has a more limited definition. Money means a medium of exchange. Websters International Dictionary 1458 (3d ed. 1961); See also Quinn-Moore v. Lambert, 272 Ark. 324, 614 S.W.2d 230 (1981). The dollar is the monetary unit that constitutes the medium of exchange in the United States. Thus, the majority opinion limits the meaning of the phrase "partially supported by public funds," to partially supported by United States dollars. In short, the majority opinion does not give the word "funds" its usual and ordinary meaning.
Construction To Accomplish Act's Purpose
In this case the City, over the period of the lease, has given and will give to the local chapter the fair rental value of the lot that exceeds one dollar per year. The amount of this gift is monetarily determinable. It is a subsidy that causes a depletion of the public funds just as certainly as if the subsidy were by dollar bills. A construction that gives meaning to the laudable purposes of the Act would require disclosure by an organization that is partially supported by public services, or goods, or property, just as surely as it does one supported by public dollars.
Accordingly, I dissent.
NOTES
[1] At oral argument before this court, counsel for Red Cross also acknowledged that the Red Cross was receiving what amounted to an indirect benefit from the City by virtue of the one-dollarper-year lease payment.
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206 A.2d 583 (1965)
Bernard BETTIS, Appellant,
v.
DISTRICT OF COLUMBIA, Appellee.
No. 3611.
District of Columbia Court of Appeals.
Argued December 14, 1964.
Decided January 26, 1965.
Albert N. Lobl, Washington, D. C., for appellant.
Richard W. Barton, Asst. Corp. Counsel, with whom Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
MYERS, Associate Judge.
On March 21, 1964, appellant, while operating his automobile, struck a pedestrian within a crosswalk. On June 18, 1964, appellant received a notice to attend a hearing the next day in connection with the accident which was to be held in the office of the Corporation Counsel. Appellant appeared but requested a postponement because his attorney was not available. The request was denied and he and other witnesses were interrogated as to their knowledge of the accident by an Assistant Corporation Counsel. On July 9, 1964, an information was filed against appellant charging him with failure to yield the right-of-way to a pedestrian in violation of Section 11(a) (1) of the Traffic and Motor Vehicle Regulations of the District of Columbia.
At trial appellant, through his attorney, moved to dismiss the information on the ground that his defense was prejudiced and the prospect of a fair trial defeated when he was forced to participate in the hearing on June 19, 1964, without the assistance of his counsel. The motion was denied. After trial, appellant was convicted of the traffic violation and this appeal ensued.
Primarily appellant contends that the trial judge erred in denying his motion to dismiss the information because his "uncounseled interrogation" by the Assistant Corporation Counsel deprived him of due process of law under the Constitution. He relies strongly on the recent cases of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Jones v. United States, U.S.App.D.C., Nos. 17688-17692, July 16, 1964. Both cases, we feel, are inapposite.
*584 The majority of the court in Escobedo held:
"[W]here * * * the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution * * *." 378 U.S. 490-491, 84 S. Ct. 1765. [Emphasis supplied.]
This opinion did not hold that such denial either completely insulated the accused from the application of criminal sanctions or provided a basis for dismissal of the information filed or indictment returned against him, but only that "no statement elicited by the police during the interrogation may be used against [the accused] at a criminal trial."
In Jones the court, in addition to holding that the confession obtained in that case when the accused was in custody of the police should not have been admitted by the trial court because it violated the McNabb-Mallory rule and that the same confession should not have been admitted against codefendants in the same case, ruled that compelling an uncounseled defendant's appearance before a grand jury and failing to notify his attorney that he was to appear violated the defendant's constitutional rights to counsel and against self-incrimination. The case was remanded to permit the District Court to fully inform itself of the evidentiary basis upon which the indictment rested, indicating that if the foundation was supplied by means other than the defendant's personal appearance for testimony before the grand jury, the indictment would be valid.
The circumstances in the cited cases are quite unlike those in the present one where appellant was not in custody of the police. Unlike the grand jury proceeding in Jones and the preliminary hearing contemplated by Rule 5 of the Federal Rules of Criminal Procedure, the informal interrogation by the Assistant Corporation Counsel of witnesses to a traffic accident cannot be properly characterized as a judicial proceeding. The Corporation Counsel's office is not required to conduct such interrogations by any statute or rule of court. The procedure, as set up by the Corporation Counsel, is for the purpose of reducing the trial load in that office and in the Traffic Branch of the court by affording an opportunity to first determine through informal inquiry and investigation whether any party involved in an accident should be charged with a traffic violation. Frequently no charges result. On the other hand, the Corporation Counsel has authority to dispense with such informal interrogation of witnesses and instead, upon the basis of a complaint by one party to an accident or upon the report of a police officer covering his investigation thereof, bring formal charges against any of the parties involved. Omission of the informal inquiry preliminary to filing an information would not abridge the rights of any party charged with a violation of the traffic laws.
Unlike the situation in Escobedo, no confession or admission, oral or written, of appellant or any other person, elicited at the hearing by the Assistant Corporation Counsel, was proffered or introduced into evidence at the trial of appellant. The record fails to reveal that he was in any wise prejudiced by appearing at the hearing without his attorney or that he did not receive a fair trial. Furthermore, the evidence fully sustains appellant's conviction.
Affirmed.
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237 Md. 349 (1965)
206 A.2d 563
MANNING
v.
STATE
[No. 352, September Term, 1963.]
Court of Appeals of Maryland.
Decided February 2, 1965.
The cause was argued before PRESCOTT, C.J., and HAMMOND, HORNEY and SYBERT, JJ., and CARTER, J., Chief Judge of the Second Judicial Circuit, specially assigned.
Joseph S. Kaufman and Abraham L. Adler for the appellant.
Loring E. Hawes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, William J. O'Donnell, State's Attorney for Baltimore City, and William T.S. Bricker, Assistant State's Attorney, on the brief, for the appellee.
HAMMOND, J., delivered the opinion of the Court.
At his trial on October 29, 1962, in the Municipal Court of Baltimore City (formerly a Magistrate's Court) the appellant Manning, neither having been advised of his right to counsel nor given the assistance of counsel, was convicted of various offenses and given terms of imprisonment totalling five years. At the time of his trial the law, under Betts v. Brady, 316 U.S. 455, 86 L. Ed. 1595, was that the Sixth Amendment to the Constitution of the United States was not as such made binding on the states by the Fourteenth Amendment and that one accused by a state of serious crime had not necessarily been denied due process of law because he had not been represented at his trial by a lawyer. Rather, held Betts, the test was whether the trial without counsel would have been "* * * offensive to the common and fundamental ideas of fairness and right * * *."
On March 18, 1963, some five months after the appellant had *351 been convicted and had begun serving his sentences, the Supreme Court decided Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, in which it in terms overruled Betts v. Brady and, in effect, made absolute the right of an accused in a serious state prosecution to have counsel for his defense. Because of the great probability that Gideon would control the contention of Manning, that for lack of counsel he had been denied due process at his trial, we granted his application for leave to appeal from the order of the Criminal Court of Baltimore passed April 30, 1963, refusing post conviction relief, and appointed counsel to prosecute the appeal.
Manning was tried in the Municipal Court of Baltimore City on charges of assault by stabbing one Gloria Tucker with a meat cleaver, assault upon each of two police officers, having on his person a dangerous and deadly weapon, and disorderly conduct. He pleaded not guilty, but was found guilty by Judge Albert Blum on all charges and sentenced to two years on the stabbing charge, one year on each of the assault charges, one year on the concealed weapon charge, and sixty days for disorderly conduct. The sentences were imposed to run consecutively except for the sentence of sixty days which was suspended.
As is customary, no transcript was made of proceedings in the Municipal Court but both appellant's mother and Judge Blum testified before Judge Jones at the post conviction hearing in the Criminal Court of Baltimore that there was no discussion of counsel at the trial in the Municipal Court. Judge Blum also said that he did not advise Manning of his right to counsel but did advise him of his right to elect to be tried before a jury in the Criminal Court of Baltimore, and that Manning waived a jury trial and elected to be tried by Judge Blum.
After his convictions Manning did not appeal to the Criminal Court of Baltimore, as the law gave him a right to do, and immediately began to serve the sentences he had received.
Judge Jones held that Maryland Rule 719, which requires that the accused shall be advised of his right to counsel and that the record must affirmatively show that he was so advised, does not apply to the Municipal Court and that under Maryland law there is no requirement that an accused must be furnished *352 counsel in a criminal proceeding before a magistrate. She held further that there was nothing in the holding of Gideon to indicate that an accused cannot waive his right to counsel and "* * * while Petitioner's formal education is limited his education in criminal procedure is broad," and by his elections to waive a jury trial and not to appeal, he waived his right to counsel which his previous experiences had taught him would be provided in the Criminal Court. Judge Jones also found that Manning, who made forty dollars a week and had in his possession twenty-two dollars when he was arrested, had not shown he was an indigent person entitled to the appointment of counsel at state expense.
The State concedes, properly we think, that "* * * the right to counsel here was not `completely and intelligently waived' in accordance with the criteria of waiver set forth in the recent Supreme Court case of Carnley v. Cochran, 369 U.S. 506." In that case the Court said (p. 516 of 369 U.S.):
"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."
The State also agrees with our view that in light of the complete lack of discussion of counsel or of indigency before Judge Blum and the paucity of evidence on the point before Judge Jones at the post conviction hearing, the finding in that hearing of lack of indigency at the time of the original trial cannot be relied on, particularly in view of Manning's testimony that after he was arrested he called his grandmother to see about getting money to pay a lawyer but found she had no money.
There is no merit in the contention of the State that Gideon would not apply, in any event, because the charges against Manning were petty offenses not serious enough to require representation by counsel as a constitutional requisite. The State relies on the distinction between petty offenses which do not constitutionally require trial by jury and traditionally more serious offenses which do. State v. Glenn, 54 Md. 572; District of Columbia v. Clawans, 300 U.S. 617, 81 L. Ed. 843.
*353 Wherever the line finally will be drawn, we have no doubt that the crimes with which Manning was charged would, if Gideon is applicable, constitutionally require representation by a lawyer. Upon request to the Judge in the Municipal Court, Manning would have been entitled to have his case sent to the Criminal Court of Baltimore for trial before a jury. Following a similar provision in the federal criminal system, this Court, on August 7, 1963, promulgated Maryland Rule 719, effective three days thereafter, binding on the Circuit Courts of the Counties and the Supreme Bench and other Courts of Baltimore City, to provide that "if at any stage of the proceeding, the accused appears in court without counsel, the court shall advise him of his right to counsel" and unless he elects to proceed without counsel or is financially unable to obtain counsel "the court shall assign counsel to represent him if the offense charged is one for which the maximum punishment is death or imprisonment for a period of six months or more, or a fine of $500.00 or more, or both * * *" (with specified exceptions as to charges of desertion or non-support) and with the further proviso that the court may assign counsel in other cases if "* * * the complexity of the case, the youth, inexperience and mental ability of the accused and any other relevant consideration" indicate that representation fairly is required. In Taylor v. State, 230 Md. 1, we held the requirements of Rule 719 to be mandatory and, therefore, required to be complied with irrespective of the type of plea entered or the lack of an affirmative showing of prejudice to the accused. We have no doubt that if Gideon controls to impose on the State the federal constitutional requirement of representation by a lawyer, the accused, unless he affirmatively and knowingly waives the right, must be represented by counsel, either privately secured or furnished by the State, in any case in which the possible punishment equals or exceeds, as in the charges here involved, the punishments specified in Rule 719. Cf. White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193.
We turn to the question of whether the rule of Gideon applies to this case, in which the accused was tried and sentenced at a time when, under Betts, there was not a constitutional requirement that in the absence of waiver he be represented by *354 counsel. We can see no good purpose in attempting a discussion, pragmatic, theoretical or philosophic, as to the merits, standing or place in the present legal system of the Blackstonian theory of the inevitability of the retroactivity of an overruling decision, or as to judicial legislation, either covert or overt that is, the extent to which "the potter, and not the pot, is responsible for the shape of the pot"[1] or as to the advantages and disadvantages of prospective overruling of prior decisions (for interesting discussion of these matters see Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale Law Journal 907, and Levy, Realist Jurisprudence and Prospective Overruling, 109 Pa. L. Rev. 1) because we are persuaded that the Supreme Court has made it plain that the rule of Gideon must always now be applied whether the conviction of the accused occurred before or after that decision was handed down.
Gideon was convicted by a jury in a Florida court on August 4, 1961, of breaking and entering, and sentenced to five years. His petition for habeas corpus was denied by the Supreme Court of Florida and his petition for certiorari was granted by the Supreme Court of the United States on June 4, 1962; that Court, after hearing argument of counsel on January 15, 1963, decided the case and overruled Betts v. Brady, on March 18, 1963. Gideon's efforts to obtain his freedom were by way of collateral attack on his conviction, both in the Florida court and the Supreme Court, and not by way of direct appeal. Thus the Supreme Court applied the law it proclaimed on March 18, 1963, to Gideon's trial in August 1961, although after Betts that trial almost certainly would have been beyond attack on constitutional grounds at any time up to March 18, 1963. Twenty-two States in an amicus brief in Gideon asked for the overruling of Betts v. Brady but urged that the decision not be applied retroactively. Significantly, not only is there not the slightest hint of an answer to the States' requests for prospective application only in the Court's opinion in Gideon, but the Court said (p. 344 of 372 U.S.): "* * * the Court in Betts v. *355 Brady made an abrupt break with its own well-considered precedents. In returning to these older precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice."
Doughty v. Maxwell, 376 U.S. 202, 11 L. Ed. 2d 650, confirms the conclusion that Gideon was intended to apply retrospectively. Doughty had been indicted for rape in 1958 and pleaded guilty without the assistance of counsel. The Supreme Court of Ohio rejected his petition for habeas corpus on the ground that he had waived his right to counsel by pleading guilty. Doughty v. Sacks (Ohio), 183 N.E.2d 368. Doughty's petition for certiorari reached the Supreme Court after the decision in Gideon. In a per curiam opinion the Supreme Court remanded for "further consideration in light of Gideon v. Wainwright." On remand, the Ohio Court adhered to its first decision, and the Supreme Court thereafter summarily reversed in a per curiam order on the authority of Gideon and Carnley v. Cochran, 369 U.S. 506, 8 L. Ed. 2d 70, supra.
Since announcing its decision in Gideon, the Supreme Court has remanded to state courts for further consideration in light of Gideon over forty cases, most of which were pre-Gideon convictions. See for example, Pickelsimer v. Wainwright and related cases, 375 U.S. 2, 11 L. Ed. 2d 41. There, in ten cases of convictions antedating Gideon the judgments were vacated by per curiam orders and the cases remanded for further consideration "in the light of Gideon v. Wainwright." Justice Harlan, in solitary dissent, was the only Justice to articulate his views; he stated his belief that the federal question presented in common by the ten cases should not be summarily dealt with because it was "deserving of full-dress consideration." Justice Harlan continued (p. 3 of 375 U.S.):
"When this Court is constrained to change well-established constitutional rules governing state criminal proceedings, as has been done here and in other recent cases, see, e.g., Mapp v. Ohio, 367 U.S. 643; Ker v. California, 374 U.S. 23; Douglas v. California, 372 U.S. 353, it seems to me that the question *356 whether the States are constitutionally required to apply the new rule retrospectively, which may well require the reopening of cases long since finally adjudicated in accordance with then applicable decisions of this Court, is one that should be decided only after informed and deliberate consideration. Surely no general answer is to be found in `the fiction that the law now announced has always been the law.' Griffin v. Illinois, 351 U.S. 12, 26 (Frankfurter, J., concurring). Nor do I believe that the circumstance that Gideon was decided in the context of a state collateral proceeding rather than upon direct review, as were the new constitutional doctrines enunciated in Mapp and Ker, forecloses consideration of the retroactivity issue in this instance."
It would appear to be a fair inference from the language of the dissent that Justice Harlan's colleagues had no doubt that Gideon applied retrospectively and buttressed their opinion by the fact that the Gideon decision itself had applied its holding in that fashion since it was proclaimed in a collateral proceeding rather than on direct review.
The decisions which have dealt with the problem before us in lower federal courts and in state courts have, save in one instance, agreed that Gideon applies retrospectively. See United States v. LaVallee (2d Cir.), 330 F.2d 303, cert. den. 377 U.S. 998, 12 L. Ed. 2d 1048 (Justice Harlan again dissented saying, inter alia, that the question of the retroactivity of Gideon "deserves plenary consideration by this Court"); United States v. Reincke (2d Cir.), 333 F.2d 608; Palumbo v. State of New Jersey (3rd Cir.), 334 F.2d 524; Geather v. State (Fla.), 165 So. 2d 229; and State v. Boles (W. Va.), 139 S.E.2d 177. In Commonwealth of Pennsylvania, ex rel. Craig v. Banmiller (Pa.), 189 A.2d 875, the Pennsylvania court held Gideon to operate prospectively only. The Federal District Court for the Eastern District of Pennsylvania took a contrary view in United States ex rel. Craig v. Myers, 220 F. Supp. 762, and granted Craig the writ of habeas corpus. This action was affirmed by the Court of Appeals for the Third Circuit in United States *357 v. Myers, 329 F.2d 856. The Supreme Court of Pennsylvania in Commonwealth ex rel. McCray v. Rundle, 202 A.2d 303, 305, acknowledged that decisions of the Supreme Court of the United States, subsequent to Gideon, had convinced it that Gideon applied retroactively and that its ruling in Craig had been wrong.
We are persuaded that the Gideon holding controls the case at bar and that Manning's convictions must be vacated. We hold no more, and particularly do not rule on the retroactivity, vel non, of any Supreme Court decision except Gideon.
Order reversed, and case remanded for the entry of an order vacating the judgments and sentences of the Municipal Court of Baltimore City and the ordering of a new trial on the charges on which those judgments and sentences were based.
NOTES
[1] Whitehead, Symbolism: Its Meaning and Effect, pp. 8-9 (1927).
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846 S.W.2d 26 (1992)
Raquel GREENE, Appellant,
v.
Michelle THIET, M.D. & Matilda Perkins, M.D., Appellees.
No. 04-92-00154-CV.
Court of Appeals of Texas, San Antonio.
November 25, 1992.
As Modified on Denial of Rehearing January 13, 1993.
*28 George W. Mauze, II, Law Offices of Mauze & Jones, San Antonio, for appellant.
George F. Evans, Jr., William R. Crow, Jr., Ball & Weed, P.C., Bruce E. Anderson, Brin & Brin, P.C., San Antonio, for appellees.
Before PEEPLES, BIERY and GARCIA, JJ.
BIERY, Justice.
Appellant's motion for rehearing is denied. Our opinion of November 25, 1992 is modified to add footnote 1.
This summary judgment appeal presents the following issues: a) the burden of a defendant-physician who moves for summary judgment on the causation elements in an informed consent case following the 1977 enactment of the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat. Ann. art. 4590i, § 6.02 (Vernon Supp. 1992).
b) if causation is sufficiently negated, the burden on the plaintiff-patient to controvert with expert medical summary judgment evidence that the patient did in fact suffer an injury because of the doctor's conduct.
Plaintiff/appellant, Raquel Greene, brought suit against the defendants-physicians, Michelle Thiet, M.D. and Matilda Perkins, M.D., alleging a lack of informed consent. Drs. Thiet and Perkins moved for summary judgment. The trial court granted the motion, specifically finding that the defendants-physicians had sufficiently negated the causation element of Ms. Greene's cause of action. In one point of error, Ms. Greene appeals. We affirm.
Appellant Greene was originally seen by Dr. Thiet on August 25, 1988, seeking abdominoplasty and liposuction, but was turned down for the procedure pending weight loss. She returned to Dr. Thiet on January 20, 1989. She had developed symptomatic cholelithiasis and had been scheduled for a cholecystectomy to be performed by Dr. Perkins. Ms. Greene requested the abdominoplasty and liposuction be performed at the same time as the cholecystectomy, and both defendants-physicians *29 agreed. Prior to the surgeries, Ms. Greene signed informed consent forms agreeing to the surgeries and acknowledging she had been advised of the risks involved in each surgery. Although appellant denies she was informed of the increased risks of wound healing problems associated with the simultaneous performance of a cholecystectomy and an abdominoplasty/liposuction, the record contains a postoperative report stating:
The patient [was] informed that the risk of complications are slightly increased with concurrent abdominal operations. She has also been apprised of the complications as listed on the operative permit and she is fully aware of them. She requests that the procedure be performed.[1]
The procedure was performed uneventfully on February 16, 1989. Appellee Perkins was the lead surgeon during the cholecystectomy and the assistant surgeon during the abdominoplasty and liposuction. Appellee Thiet was the lead surgeon on the abdominoplasty and liposuction and the assistant surgeon on the cholecystectomy. The surgeries took just under four hours which, according to the record, was within the time normally expected for an abdominoplasty and liposuction alone.
Following the surgery, Ms. Greene suffered numerous post-surgical complications due to wound healing problems. These problems resulted in necrosis of the tissue, which necessitated three debridements after her discharge. Subsequently, she was admitted to the hospital for a skin graft. Because of the healing problems which allegedly necessitated further medical care, including additional surgeries to correct scarring, pain, poor cosmetic results, disfigurement and the resulting mental anguish, Ms. Greene filed suit against Drs. Thiet and Perkins. Appellant Greene does not dispute that skin necrosis is a recognized complication of abdominoplasty and liposuction, and that skin necrosis can, and does, occur in the absence of any negligence on the part of the operating surgeon. Rather, she contends summary judgment was improperly granted because a genuine issue of material fact exists as to whether the defendants-physicians caused appellant Greene's injuries because of a failure to inform her of the increased risk of complications due to performing both surgeries simultaneously. She contends she would not have had both surgeries had she been so informed. Appellant Greene originally sued also on the grounds of traditional negligence in performing the surgeries, but subsequently amended her pleadings to delete the negligence cause of action.
A defendant in a medical malpractice action is entitled to summary judgment when the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. White v. Wah, 789 S.W.2d 312, 315 (Tex.App.Houston [1st Dist] 1990, no writ); see also Zapata v. Rosenfeld, 811 S.W.2d 182, 183-84 (Tex.App. Houston [1st Dist] 1991, writ denied) (upholding summary judgment on pleadings in medical malpractice claim involving alleged contract to cure). When moving for summary judgment, the defendant-physician has the burden to negate one or more of the following elements of the patient's claim: (1) a duty of the physician to conform to a certain standard of care; (2) a failure to conform to the required standard; (3) resulting injury; and (4) a causal connection between the defending party's conduct and the injury. White, 789 S.W.2d at 315; Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App.Houston [1st Dist] 1986, no writ).
This fourth element, the causal connection, is usually defined by the courts in terms of what is called "proximate cause" or "legal cause." Prosser & Keeton on The Law Of Torts § 41, at 263 (5th ed. 1984). The most common problem associated *30 with proximate cause is that of "causation in fact." Id. at 264. Although classified as an issue of "fact," the standard test for determining cause in fact requires the factfinder to compare what did occur with what would have occurred if hypothetical, contrary-to-fact circumstances had existed. Id. As discussed in detail below, in an informed consent case, the factfinder is required to determine whether a reasonable person would have refused the treatment or procedure had he been fully informed of the inherent risks which would influence such a decision. McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989). Additionally, a second prong of causation is that an act or omission by a defendant is not regarded as a cause of an injury if the particular injury would have occurred without it. See Prosser & Keeton on The Law Of Torts, § 41, at 265. For example, the failure to install a proper fire escape on a hotel is no cause of the death of a man suffocated in bed by smoke. Smith v. The Texan, Inc., 180 S.W.2d 1010, 1012 (Tex. Civ.App.Fort Worth 1944, writ refd w.o.m.) (no showing guest made any effort to use fire escape). From such circumstances, the United States Supreme Court derived a rule, commonly known as the "but for" or "sine qua non" rule, which may be stated as follows: the defendant's conduct is a cause of the plaintiff's injury if the injury would not have occurred but for that conduct. See Mt. Healthy City Sch. Dist. Bd. ofEduc. v. Doyle, 429 U.S. 274, 285-87, 97 S. Ct. 568, 575-76, 50 L. Ed. 2d 471 (1977). Conversely, the defendant's conduct is not a cause of the injury if the injury would have occurred even without the defendant's conduct sued upon. See Id. Applying this general rule to an informed consent case such as this, we believe the "but for" rule may be stated as follows: the defendant-physician's failure to disclose is not a cause of the patient's injury if the patient was not injured by the occurrence of the risk of which he was not informed.
Once the defendant-movant negates one or more of the essential components of the patient's cause of action, the burden shifts to the non-movant to produce controverting evidence raising an issue of fact as to the element or elements negated. Pinckley, 740 S.W.2d at 531, see also Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379-80 (Tex.App.Texarkana 1989, no writ) (unless movant's proof is legally insufficient, non-movant must produce proof to avoid summary judgment). It is clear from the trial court's judgment that the defendants-physicians in the trial court successfully attacked appellant Greene's cause of action on the issue of causation. We focus, therefore, upon the summary judgment proof submitted on the issue of whether the defendants-physicians negated the causal connection between the failure to disclose the risks inherent in combining the medical procedures and appellant Greene's injuries. To determine whether the evidence supporting the motion for summary judgment is legally sufficient, we must consider the common law, the changes wrought by the enactment of the Medical Liability and Insurance Improvement Act ("the act" or "article 4590i"), and the effect of those changes upon this litigation. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 6.02 (Vernon Supp.1992).
In litigation concerning the question of informed consent before the enactment of article 4590i, unless the mode or form of treatment was a matter of common knowledge or was within the experience of the layman, the requisite proof of negligence had to be established through expert testimony. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.1977). The common law focused on the doctor, rather than upon the patient. Price v. Hurt, 711 S.W.2d 84, 87 (Tex.App.Dallas 1986, no writ). The reasonableness of the defendant-physician's disclosure was determined by the standards followed by other health care providers in the same or a similar community. Id. The common law allowed the physicians to set the standards against which their conduct would be measured in a malpractice suit. Peterson v. Shields, 652 S.W.2d 929, 930 (Tex.1983). Article 4590i, section 6.02, of the act, however, provides:
In a suit against a physician or health care provider involving a health care liability *31 claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
Tex.Rev.Civ.Stat.Ann. art. 4590i, § 6.02 (Vernon Supp.1992) (emphasis added). Thus, article 4590i replaced the common law "locality rule" or reasonable medical practitioner standard with a "reasonable person" standard, which asks what risks are material to the patient in making the decision to give or withhold consent to a particular medical procedure. Peterson, 652 S.W.2d at 931; Price, 711 S.W.2d at 87. This reasonable person standard focuses upon the disclosures which would influence a reasonable person deciding whether to consent to a prescribed medical procedure, rather than the disclosures the physicians in a certain community deem material. Peterson, 652 S.W.2d at 931; Price, 711 S.W.2d at 87.
Although the statutory scheme shifted the focus from what a reasonably prudent doctor would disclose to a patient to what information is needed by a reasonable patient in making a decision to give or withhold consent for a medical procedure, the Texas Supreme Court has interjected both statutory and traditional causation elements into informed consent cases. See McKinley v. Stripling, 763 S.W.2d 407, 409-10 (Tex.1989). In order to establish that the failure to obtain informed consent was a proximate cause of his injuries, the plaintiff, on the merits, must prove that a reasonable person would have refused the treatment or procedure had he been fully informed of all inherent risks which would influence his decision. Id. at 410. Additionally, and of great importance to this case, the patient must also establish, on the merits, that he developed the nondisclosed risks or hazards, or, stated another way, that he was injured by the occurrence of the risk of which he was not informed. Jones v. Papp, 782 S.W.2d 236, 241 (Tex. App.Houston [14th Dist. 1989, writ denied] ); Hartfiel v. Owen, 618 S.W.2d 902, 905 (Tex.Civ.App.El Paso 1981, writ refd n.r.e.); see also Karp v. Cooley, 493 F.2d 408, 421-22 (5th Cir.), cert, denied, 419 U.S. 845, 95 S. Ct. 79, 42 L. Ed. 2d 73 (1974).
Thus, in a statutory informed consent action, the necessity of establishing a causal connection between undisclosed risks and harm becomes twofold: at a trial on the merits, a plaintiff must prove the causal connection which must be shown in statutory informed consent cases (disclosure would have resulted in a decision against the proposed treatment) and the traditional causal relationship between the particular medical procedure and resulting harm, as in an ordinary negligence action (the injury complained of was caused "in fact" by the nondisclosed risk).
Conversely, a defendant moving for summary judgment must prove the alleged causal connection in the negative: the movant-physician must establish either that disclosure would not have resulted in a decision against the procedure or that the patient was not injured by the risk of which he was not informed. It is not necessary for the defendant-movant to disprove both components of the causal connection. Rather, the defendant is entitled to summary judgment if he can negate any one of the essential elements of the plaintiffs cause of action. Pinckley, 740 S.W.2d at 531; Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 750-51 (Tex.App.Houston [14th Dist.] 1986, writ refd n.r.e).
As noted above, once the movant negates the causation element of the informed consent cause of action, the burden shifts to the non-movant patient to produce controverting evidence raising an issue of fact as to the causation component negated. See Pinckley, 740 S.W.2d at 531; Nicholson, 722 S.W.2d at 751. Here, if Drs. Thiet and Perkins met their burden of negating either component of the causation element of appellant Greene's informed consent cause of action, the burden would shift to Ms. *32 Greene to produce controverting evidence to raise a fact issue regarding causation.
In order to show the nature of the summary judgment proof in this case, we look at the affidavit and deposition testimony of Drs. Thiet and Perkins relied upon to show appellees successfully negated "causation in fact" and the related "but-for" rule. The affidavit of appellee Thiet states in detail the surgical procedures to be followed to avoid healing difficulties following an abdominoplasty and liposuction operation, and that all such procedures were followed. Omitting that part establishing her qualifications and appellant's patient history, appellee Thiet also stated:
Skin necrosis is a recognized complication of surgery of this kind, and was fully discussed with the patient prior to the surgery. Skin necrosis can and does occur in the absence of any negligence on the part of the operating surgeon.
It is my opinion that nothing which I did or failed to do during the abdominoplasty of Raquel Greene caused or contributed to develop this skin necrosis. This is a recognized but always disappointing complication of this surgery ...
The affidavit of Dr. Perkins, and the operative report attached to the affidavit, described the surgical procedures to be followed during a cholecystectomy, and that all such procedures were followed. In her affidavit, Dr. Perkins also stated:
Ms. Greene also indicated that she wanted to have an abdominoplasty and liposuction performed for cosmetic reasons by her plastic surgeon, Dr. Michelle Thiet. Although I assisted with regard to that procedure, I did not perform the cosmetic surgery. The principal surgeon was Dr. Thiet.
The standard of care allows for these operations to be performed together. Precautions were taken to protect the patient. Gowns and gloves were changed and the patient was redraped with clean drapes. Instruments that were used for the cholecystectomy were removed....
It is further my opinion, that, with respect to the allegations of negligence made by Ms. Greene against myself, I did not negligently proximately cause any of the injuries or damages that Ms. Greene is complaining about in this lawsuit. I specifically deny that my alleged negligence (in what I did or allegedly failed to do), caused her the damages she now claims.
In making its ruling, the trial court also had before it portions of the depositions of both physicians, filed by appellees and appellant. When deposed, Dr. Thiet stated that combining a cholecystectomy with abdominoplasty/liposuction surgery is an accepted and common procedure. She also stated that, in general, an abdominoplasty with liposuction operation similar to that performed on appellant Greene takes approximately three and one half to four hours to perform. She further said that combining these procedures with a cholecystectomy would normally extend the time in surgery by whatever time it took to perform the cholecystectomy, usually fifty minutes to one hour. According to Dr. Thiet, ordinarily the operative time for the combined procedures would be between four and one half and five hours. However, Dr. Thiet testified, due to a lack of complication in this case the combined surgeries took only three hours and fifty-five minutes. Therefore, according to Dr. Thiet, both procedures were completed within the time which one would normally expect for abdominoplasty with liposuction alone. The defendants-physicians contend this evidence shows that, other than the increased of risk of infection, which all parties agree did not occur, the only possible cause of an increased risk in healing problems was the extended surgical time anticipated in the combined procedures. Since additional time was unnecessary, Drs. Thiet and Perkins contend the summary judgment affidavit and deposition testimony sufficiently negate the assertion that appellant Greene was injured by combining the surgeries, thus shifting the burden to Ms. Greene to present expert medical testimony that she was injured by the *33 combination of the surgeries. Garza v. Levin, 769 S.W.2d 644, 646 (Tex.App Corpus Christi 1989, writ denied). We agree.
We initially note appellant Greene is correct in her assertion that the record contains no summary judgment evidence of what would influence a reasonable person in deciding whether to consent to a recommended medical procedure.[2] The summary judgment evidence, therefore, fails to specifically address the first component of causation in this informed consent casethat a reasonable person in the same or similar circumstances as Ms. Greene would not have consented to simultaneous surgeries had she been informed of the undisclosed risk in combining the procedures. As to the second step of the causation analysis, however, Drs. Thiet and Perkins have clearly presented evidence negating that the alleged increase in risk involved in the simultaneous performance of the surgeries, within the same time required to perform one surgery, in fact caused the necrosis. As discussed above, the summary judgment burden, of course, is on the defendants-physicians to prove conclusively that their patient was not injured by the occurrence of the risk of which she claims she was not informed. See Jones, 782 S.W.2d at 241.
In Garza v. Levin, 769 S.W.2d 644, 646 (Tex.App.Corpus Christi 1989, writ denied), the court of appeals upheld a defendant physician's summary judgment proof on the basis that the defendant's own affidavit adequately negated the plaintiff's allegations of negligent failure to diagnose and treat a ruptured appendix and proximate causation, and because the plaintiff's summary judgment evidence did not adequately controvert it. The defendant-physician's affidavit described his medical qualifications and described the treatment he performed in detail. Id. at 645. He also stated that, based on reasonable medical probability, nothing he did injured the plaintiff. Id. The court held that the defendant was entitled to summary judgment based on his own uncontroverted expert testimonial evidence. Id. at 645-46; see also Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215-17 (Tex.App.Houston [1st Dist.] 1986, no writ); Duncan v. Horning, 587 S.W.2d 471, 473 (Tex.Civ.App. Dallas 1979, no writ).
Here, the summary judgment evidence of both doctors was that combining the surgeries did not cause the injury. Their opinions were supported by evidence showing that the only possible cause of an increased risk in developing necrosis may have been the extended surgical time anticipated in the combined procedures. Since the physicians-defendants presented undisputed evidence that additional time was not necessary, we find Drs. Thiet and Perkins met their burden.
Because the defendants-physicians proof negated the second component of causation, the burden shifted to appellant Greene to produce controverting expert evidence that she developed necrosis because of an increased risk of performing the abdominoplasty and liposuction simultaneously with the cholecystectomy. Appellant Greene is not required to prove she would prevail at a trial on the merits; she need only produce evidence sufficient to raise an issue of fact with respect to the causation component negated by the movant's summary judgment evidence. See Cloys v. Turbin, 608 S.W.2d 697, 700 (Tex. Civ.App.Dallas 1980, no writ). Causation in a medical malpractice case, however, must be proven by expert testimony. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965). The patient's personal affidavit is not considered competent controverting evidence because medical conclusions of a lay witness cannot controvert medical expert opinion. Garza, 769 S.W.2d at 646. Even where the patient engages a medical expert, the patient will not prevail unless the expert asserts a causal connection between the defendant's actions and the plaintiff's injuries. Id. Here, appellant Greene did *34 not present deposition or affidavit testimony of a medical expert to the effect that the combined surgeries, although performed within the time needed for one surgery, in fact caused the injury. Rather, she filed a personal affidavit in opposition to the defendants' motion for summary judgment. As such, in the absence of competent expert controverting evidence on the issue of causation, the summary judgment must be affirmed.
Moreover, we can find no testimony, even from appellant Greene, to the effect that the skin necrosis she developed was related to an increased risk inherent in combining a cholecystectomy and an abdominoplasty and liposuction if performed within the same time required to do one surgery. Regarding her alleged damages, Ms. Greene stated:
As a result of the surgical procedures, I currently have severe and permanent scarring throughout my abdomen. Furthermore, I have been very humiliated and embarrassed to have anybody see the permanent scarring around and near my abdomen. In addition, I have lost a lot of my self esteem and confidence in myself as a result of my appearance. I have been emotionally upset and have been unable to sleep well since the surgical procedures that have left me with this permanent scarring. In addition, I have had pain on a frequent basis since the surgical procedures. Such pain has caused me great discomfort and limited my activities. In addition, my extra-curricular activities have been severely restricted in that I can no longer wear certain types of clothing or engage in certain activities because of the embarrassment and/or discomfort caused as a result of my current physical condition.
The absence of testimony regarding the causal relationship between the risks involved in the simultaneous performance of surgeries and the resulting necrosis is apparently the result of appellant Greene's contention that a patient is not required to prove the traditional negligence causal connection (between the surgery and the injuries) in an informed consent cause of action brought subsequent to the enactment of the Medical Liability and Insurance Improvement Act. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 6.02 (Vernon Supp.1992). In her appellate brief and during oral argument, Ms. Greene suggested that the holdings in Barclay v. Campbell, 704 S.W.2d 8, 9 (Tex. 1986) and McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989), as reflected in 3 State Bar of Texas, Texas Pattern Jury Charges PJC 51.12 (1989), eliminate the need for the patient to establish the second component of causationthe "but-for" causal connection between the undisclosed risks and the patient's injuries.[3] While it is true the court in Barclay and McKinley discussed the submission of proximate cause only as it related to whether or not the patient would have consented to the procedure, in those cases the injuries suffered by the patients were a direct and obvious consequence of the procedure performed; therefore, the second element of causation was not in issue.
In Barclay, a patient with mental illness was referred to the defendant physician by *35 his employer's company doctor. 704 S.W.2d at 9. During the course of treatment, the defendant prescribed certain neuroleptic drugs. In discussing the patient's injuries, the court stated:
In a small percentage of cases, these drugs produce a condition known as tardive dyskinesia. This condition is marked by involuntary muscle movements. The evidence is undisputed that [the defendant-physician] did not warn Barclay of the risks associated with the neuroleptic drugs, and Barclay now suffers from tardive dyskinesia.
Id. Thus, because it is clear the patient suffered from tardive dyskinesia due to treatment with neuroleptic drugs, it is" clear he was injured by the occurrence of the risk of which he was not informed. In this case, however, it is not clear that Ms. Greene was injured by the occurrence of the risk of which she was not informed. Ms. Greene apparently contends that she was injured by necrosis which was caused by the undisclosed increased risk of combining cholecystectomy and abdominoplasty/liposuction surgeries. In causation terminology, she contends the necrosis would not have resulted "but-for" the combination of the cholecystectomy and the abdominoplasty and liposuction procedures. She fails to address, however, the defendants-physicians' summary judgment proof negating this contention. Drs. Thiet and Perkins produced expert testimony that combining the surgeries would not have resulted in necrosis "but-for" the additional time involved in combining the two procedures; the combined surgeries were completed within the same time frame it would have taken to complete an abdominoplasty/liposuction; therefore, combining the surgeries is not a cause of the necrosis because the necrosis could have occurred without it.
McKinley is also instructive. 763 S.W.2d at 408. Although the specific question before the court was whether it was necessary to submit an issue on whether a reasonable person would have refused the surgery had full disclosure of risks been made, it is clear that the patient would not have suffered his injury but for the operations performed on his index finger. In fact, the court noted that the jury had found "that [the patient] had suffered limited movement as a result of the surgeries performed." Id. The court went on to state:
An issue on proximate causation must be submitted as in ordinary negligence cases so the jury may determine whether any breach of duty caused the injuries suffered. To hold otherwise would amount to an imposition of strict liability wherein a failure to warn and an undesirable surgical result would automatically create liability on the doctor.
Id. at 409. Were we to accept appellant Greene's argument, and hold that a patient need only prove that she would not have consented to the treatment had she been informed of the undisclosed risk, we would, in effect, impose strict liability upon the treating physician contrary to McKinley. To do so would be to give appellant Greene a cause of action for lack of informed consent even if the results of her surgeries had been positive. We do not believe the legislature intended such a result. Rather, we believe the purpose of the disclosure rule is to protect the patient only against those results that, (1) if known, the patient would have avoided by foregoing the treatment, and, (2) because of not foregoing the treatment, an injury resulted.
For many years, Texas courts discussed the failure to disclose risks inherent in medical and surgical procedures in terms of assault and battery. Wilson v. Scott, 412 S.W.2d 299, 302 (Tex. 1967). In battery cases, the damages extend to the injuries which result from an unpermitted touching. Page Keeton, A Study of Medical Malpractice in Texas, 7 St. Mary's L.J. 732, 755 (1976). Thus, in an informed consent case brought under a battery theory of recovery, a patient need only prove the treating physician's failure to disclose a risk involved, thereby invalidating any consent to treatment given. Id. There was no necessity that the patient prove a bad result from the treatment. Id.
*36 Article 45901 of the Medical Liability and Insurance Improvement Act provides that, in informed consent cases, "the only theory on which recovery may be obtained is that of negligence...." Tex.Rev. Civ.Stat.Ann. art. 4590i, § 6.02 (Vernon 1992 Supp.). When interpreting this statute, in McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex.1989), the Texas Supreme Court held that "[i]t is clear from the language of this statute that an action alleging a physician's failure to obtain a patient's informed consent is a suit based on negligence." Moreover, the court found that:
Traditional notions of liability in negligence actions require a finding of a duty, a breach of that duty, the breach was a proximate cause of injuries, and that damages occurred. A medical procedure informed consent case does not differ merely because a statute imposes the duty of disclosure.
Id. (citation omitted). It is clear from this language that informed consent questions are no longer to be decided in terms of assault and battery. Rather, the law is that these cases are to be based upon a negligence theory of recovery. In ordinary medical malpractice cases based upon negligence, there are numerous instances where appellate courts have affirmed summary judgments by focusing on proof establishing that the injury suffered by the patient was not caused by negligence, but instead represented a common complication of a type of treatment or particular condition. See e.g., Pinckley v. Gallegos, 740 S.W.2d 529, 530-32 (Tex.App.San Antonio 1987, writ denied) (evidence conclusively established that appellant's injury was common complication of type of surgery she underwent and was not attributable to negligence by physician); Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 751 (Tex. App.Houston [14th Dist.] 1986, writ refd n.r.e.) (proximate cause element of claim against hospital conclusively disproven by expert testimony that infection in jaw originated from bacteria normally present in patient's mouth); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App. Houston [1st Dist.] 1986, no writ) (uncontroverted evidence demonstrated no breach of duty to protect patient from infection and that meningitis developed by patient was recognized complication of brain surgery which can develop despite following proper procedures). Applying this negligence theory to a statutory informed consent case, the patient should be able to recover only for the injuries attributable to the undisclosed risk. In order to adhere to appellant Greene's argument, we would be required to return the doctrine of informed consent to its origins in the law of battery contrary to present statutory and case law. See Page Keeton, A Study of Medical Malpractice in Texas, 7 St. Mary's L.J. 732, 755 (1976). We think a proper statement of the "causation in fact" issue in this type of case is stated by Jim Perdue and Paula Sweeney in Medical Malpractice and Hospital Liability Law in Texas-Plaintiffs Perspective, Advanced Personal Injury Law Course (1992) at pages G-259 to 261.
Additionally, when faced with similar arguments subsequent to the enactment of article 4590i, at least one Texas appellate court has reached the same conclusion as this court and required the patient to establish a causal connection between the undisclosed risks and the injuries suffered. In Jones v. Papp, 782 S.W.2d 236, 241 (Tex. App.Houston [14th Dist.] 1989, writ denied), summary judgment for a cardiologist in an informed consent'case was affirmed. Citing Hartfiel v. Owen, 618 S.W.2d 902, 905 (Tex.Civ.App.El Paso 1981, writ refd n.r.e), the court held that, in an informed consent case, the patient must prove that he was not informed of the inherent risk, that he would not have consented to the procedure had he been informed, and that he was injured by the occurrence of the risk of which he was not informed. Id. at 240-41. Specifically, the court found:
As to the inherent risk of allergic sensitivity reaction to the dye, the summary judgment evidence, based upon the depositions of [the defendants-physicians] ... establishes conclusively that [the patient] did not sustain injury from the inherent risk of allergic sensitivity reaction to the *37 dye for the reason that this risk did not occur.
Id. In Hartfiel, the court discussed nondisclosure of risk and causation of injury and concluded:
The theory of informed consent is based on negligence and a plaintiff may not recover unless he proves both that he would not have consented to the treatment had he been informed of the undisclosed risk and that he was injured by the occurrence of the risk of which he was not informed.
618 S.W.2d at 905 (emphasis added) (citations omitted).
Appellant Greene argues Hartfiel is distinguishable from the case at bar because it involved "medical procedures performed before the effective date of the act and because it was not a summary judgment appeal, but an appeal from an adverse jury verdict." Based upon the discussion above, we find neither argument persuasive.
In conclusion, we hold that, in informed consent cases when moving for summary judgment, the defendant-physician has the burden to negate at least one of the following components of the causation element of the patient's cause of action: (1) a reasonable person in the same or similar circumstances as the plaintiff would not have chosen to have the surgery had she been informed of the undisclosed risks or (2) the plaintiff was injured by the occurrence of the risk of which she was not informed. In this case, we hold the defendant-physicians, Drs. Thiet and Perkins, produced sufficient summary judgment as to the "but-for" component of causation discussed above, shifting the burden to appellant Greene to produce controverting expert medical summary judgment evidence. Because Ms. Greene did not produce competent expert controverting evidence to create an issue of fact, the trial court correctly granted the summary judgment.
Accordingly, the judgment of the trial court is affirmed.
NOTES
[1] Even though Greene's denial of being informed of increased risk of wound healing problem probably raises a fact issue on the "breach of duty to inform" element, our disposition of the case on the "proximate cause" element renders such fact issue immaterial.
[2] At least one appellate court has held that, except in extraordinary circumstances, inquiry into reasonable conduct is a question of fact which precludes summary judgment. Ridgeline, Inc. v. Crovu-Gottesman-Shafer # 1, 734 S.W.2d 114, 116-17 (Tex.App.Austin 1987, no writ).
[3] In McKinley, the Texas Supreme Court held that the proximate cause issue must be framed as follows:
[W]hether a reasonable person, not a particular plaintiff, would have refused the treatment or procedure had he been fully informed of all inherent risks which would influence his decision. Only in this way may a plaintiff establish that the failure to obtain informed consent was a proximate cause of his injuries.
763 S.W.2d at 410 (citations omitted).
The Texas Pattern Jury Charge, section 51.12, states that, when there is a dispute as to whether adequate disclosure was made, the following questions should be submitted:
Question No. I.
Did (Defendant Physician's Name) fail to disclose to (Plaintiff Patient's Name) such risks and hazards inherent in (Treatment In Issue) that could have influenced a reasonable person in making a decision to give or withhold consent to such treatment? Answer "Yes" or "No"
Question No. 2 If you have answered the above question "Yes", then answer the following question. Otherwise do not answer the following question.
Would a reasonable person have refused such treatment if those risks and hazards had been disclosed?
Answer "Yes" or "No".
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153 A.2d 200 (1959)
William H. BENNETHUM, III, Petitioner,
v.
SUPERIOR COURT OF the State of DELAWARE IN AND FOR NEW CASTLE COUNTY and The Honorable Andrew D. Christie, Sitting As Judge of Said Court, Respondent.
Supreme Court of Delaware.
July 13, 1959.
David B. Coxe, Jr., Wilmington, for petitioner.
Clement C. Wood, Chief Deputy Atty. Gen., for the State.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
*201 SOUTHERLAND, Chief Justice.
In the court below the petitioner Bennethum was indicted for violation of the State income tax laws. He moved to dismiss the indictment on the ground that it does not state facts constituting an offense. The court denied the motion.
Bennethum petitions for a writ of prohibition on the ground that the Superior Court had no jurisdiction of the cause.
The indictment in this case charges that on April 30, 1956, William H. Bennethum, III
"Count I
"Being a natural person and a resident of the State of Delaware during the calendar year 1955 and having a gross income in excess of $600.00 during the calendar year 1955, did fail to file an income tax return for said year with the State Tax Department, as required by 30 Delaware Code, Section 1168, contrary to 30 Delaware Code, Section 1184(c).
"Count II
"Being a natural person and a resident of the State of Delaware during the calendar year 1955 and having a gross income in excess of $600.00 during the calendar year 1955, did fail to pay the income tax for which he was liable under the provisions of 30 Delaware Code, Chapter 11, contrary to 30 Delaware Code, Section 1184(c)."
The sections of the State income tax law here pertinent are the following:
30 Del.C. § 1168:
"Returns * * * shall be filed by every taxable * * * on or before the thirtieth day of April in each year, for the preceding year."
30 Del.C. § 1184(c):
"If a taxable fails or refuses to make a return or to pay a tax as provided in this chapter, such taxable shall be guilty of fraud and shall be liable to the penalties provided for fraudulent returns."
30 Del.C. § 1187(e) (f):
"(e) Any person, or corporation or any officer or employee of any corporation, or any member or employee of any association of persons, syndicate, joint venture or copartnership, who with intent to evade any requirement of this chapter or any lawful requirement of the Tax Department thereunder, fails to pay any tax or to make, sign or verify any return or to supply any information required by or under the provisions of this chapter, or who, with like intent, shall make, render, sign or verify any false or fraudulent return or statement or shall supply any false or fraudulent information, shall be fined not more than $500 or imprisoned not more than 6 months or both. The penalties provided by this paragraph shall be additional to all other penalties in this chapter provided.
"(f) Any taxable who refuses or neglects to make the return required to be made under this chapter within 30 days after the last day for making such return, or who refuses or neglects *202 to pay the tax assessed against such taxable within 30 days after it becomes due, shall be fined not more than $500 or imprisoned not more than 6 months, or both."
The violations of law charged, it will be noted, are violations of § 1184(c). Petitioner argues that (1) this section contemplates only civil penalties and is not intended as a criminal statute; and (2) if it is to be deemed a criminal statute it is unconstitutional as an arbitrary attempt to create a conclusive presumption of fraud.
These contentions call for a construction of the three statutes quoted above § 1184 (c), § 1187(e) and § 1187(f). They are in pari materia and must be construed, if possible, so as to form a consistent pattern. This is a task of some difficulty, for the statutes are poorly drawn, and the exact meaning of § 1184(c) is uncertain.
Postponing until later the consideration of § 1184(c) we note that § 1187(e) deals generally with the subject of evasion of the "requirements" of the Tax Department (i. e. of the law and regulations) by (1) failing to pay the tax, (2) failing to make, sign or verify the return, (3) failing to supply information, or (4) making a false return or supplying false information. Any of such acts is a criminal offense, provided that the intent to evade is proved.
What then is the function of § 1184(c)? It deals only with the failure or refusal to make a return or pay the tax matters sufficiently and more specifically covered by § 1187(e). And what is meant by declaring that one who fails to make a return or pay the tax "is guilty of fraud"? There is no common-law crime of "fraud" as such, and the statute contains no definition.
And how can there be a conclusive presumption of "fraud" from the failure to file a return? We think it quite unreasonable to hold that the statute creates the crime of "fraud" and makes the sole test the failure to file a return or pay the tax. Obviously, one may fail to file a return in order to avoid paying taxes; or one may fail to file it through absence, sickness, oversight or simple neglect.
Such a construction would raise a serious constitutional question, for it has been held that the Legislature may not establish by fiat an irrebuttable presumption contrary to the facts. Appeal of Brown, 4 Terry 608, 43 Del. 608, 49 A.2d 618.
The conclusion must be that although § 1184(c) is in form a criminal statute, it does not define any crime separate and distinct from the crimes defined in § 1187(e), and no indictment can be founded upon its terms. The greatest effect that could be given to it, we think, is that it might be construed to create a prima facie presumption of intent to defraud the State of revenue by failing to make a return or pay a tax, and thus support an indictment under § 1187(e) charging an intent to evade the requirements of the law. In that view § 1187(e) and § 1184(c) could be read together so as to create two kinds of offenses: (1) fraud in the return, and (2) refusal or failure to make the return or pay the tax. Each species of offense would require proof of intent to evade. In the first case the intent must be inferred from the circumstances disclosed; in the second case the intent might be supplied, prima facie, by the statutory presumption found in § 1184(c). But whatever construction be given § 1184(c), an indictment must be based on § 1187(e) and an intent to evade the requirements of the law is an essential ingredient of either species of crime.
The Attorney General seeks to sustain the indictment by suggesting that the phrase "shall be guilty of fraud" in § 1184(c) is mere surplusage, and § 1184(c) is to be construed as though it read:
"If a taxable fails * * * to make a return * * *, such taxable shall be liable to the penalties provided for fraudulent returns."
*203 In this view, § 1184(c) creates the distinct offenses of failure to file a return and failure to pay the tax aside from any intent to evade the law; that is to say, it prescribes punishment for delay.
The insuperable difficulty with this contention is that if it is accepted § 1187(f) becomes wholly superfluous indeed meaningless. That section creates the specific offenses of failing to file a return or to pay the tax "within 30 days" after the return is due or the tax is payable. No intent to defraud or other specific intent is required to constitute either offense. It is obvious that if the State cannot prove fraud or intent to evade it may proceed criminally against a defaulting taxable under § 1187(f). But in that case the taxable has a grace period of 30 days. Under the State's construction of § 1184(c) a taxable who is a day late in filing his return may be immediately indicted and prosecuted under § 1184(c). The grace period provided by § 1187(f) then becomes meaningless. Such an unreasonable construction must be rejected.
It follows that the indictment before us is defective because it fails to include a charge of intent to evade, as specified in § 1187(e), and should have been quashed.
It is true that the construction we have adopted does not make the pattern of the statutes wholly consistent. Thus, as noticed by the court below, the same penalty is prescribed for an offense under § 1187 (f), involving no fraud, as is prescribed for offenses under § 1187 (e), involving fraud or intent to evade the requirements of the law. But this is an unavoidable consequence of any construction.
There remains the question whether the writ of prohibition should issue. The petition charges, as it must, that the court below was without jurisdiction of the cause. Our conclusion is, as above stated, that the indictment is defective. Should we therefore dismiss the petition? We think not. On the face of the petition we had jurisdiction to entertain it. And the result of dismissal would be to allow the prosecution to continue, and thus possibly lead to a futile waste of time. Moreover no new indictment could be found, since more than two years have elapsed and the indictment is required to specify a date within the two-year period. The writ will therefore issue.
One other point must be noticed. Reindictment of the petitioner, a member of the bar, will be prevented by the statute of limitations. But this does not alter the fact that a member of the bar of this Court has been charged with an unexplained failure to discharge his duty as a citizen. The failure, or refusal, by a member of the bar to perform those duties may well be such a breach of the standards of professional ethics as to require disciplinary action by this Court, irrespective of the failure of a prosecution for the charged violation of the law.
Prior to the finding of the indictment in this case, this Court had instructed its Censor Committee to investigate publicly known alleged income tax irregularities by certain members of the bar, and to report to the Court with respect to the possibility that such irregularities might require disciplinary action against lawyers involved. Subsequently, the petitioner was indicted and, under instructions from this Court, the Censor Committee deferred its report to this Court pending the disposition of the indictment against the petitioner. This action was taken by us to avoid any suggestion of prejudice for or against the petitioner in his trial on the indictment. Since the issuance of the writ in this case now finally disposes of the criminal charge against the petitioner, there is no reason for further deferring the Censor Committee's investigation and report.
The Censor Committee will, therefore, be forthwith instructed to proceed with its investigation and to report its findings concerning the petitioner's conduct to this Court for such action as may be appropriate.
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425 F. Supp. 1320 (1977)
Lawrence WAGNER et al., Plaintiffs,
v.
John J. GILLIGAN, Governor et al., Defendants.
Civ. No. C 72-255.
United States District Court, N. D. Ohio, W. D.
January 25, 1977.
*1321 *1322 Frank S. Merritt, Chicago, Ill., Legal Assistance Foundation of Chicago, Norman G. Zemmelman, Toledo, Ohio, for plaintiffs.
Frederick L. Ransier, Asst. Atty. Gen., Columbus, Ohio, for defendants.
OPINION AND ORDER
FINDINGS OF FACT AND CONCLUSIONS OF LAW
DON J. YOUNG, District Judge:
This cause is before the Court upon defendants' motion to dismiss the action insofar as it purports to be a class action and motion for partial summary judgment. The parties have stipulated the facts and have submitted this matter for judgment with argument on briefs as to the class claims. Fed.R.Civ.P. 56(d).
Plaintiff Wagner commenced this suit as a class action alleging violations of the constitutional rights of state prison inmates, protected by 42 U.S.C. § 1983. Jurisdiction is predicated upon 28 U.S.C. § 1343(3), (4) with monetary and injunctive relief requested pursuant to 28 U.S.C. §§ 2201, 2202.
Plaintiff Wagner alleges that defendants have violated his personal civil rights by intentionally and recklessly denying him medical attention. He seeks actual and punitive damages in the sum of $40,000.00. The remaining claims attack the constitutionality of procedures, more fully set forth below, defendants apply to determine inmates' parole release. The Court having determined previously that plaintiff Wagner's medical claim will be tried separately will not address that claim. Pretrial order filed July 30, 1973.
Before reaching the merits of the class parole claims, the Court must determine whether this action has been mooted by plaintiff Wagner's final release from all state supervision. Defendants argue that the class claims cannot survive independent of Wagner's representative parole procedure claims.
The motion to dismiss for mootness must be overruled. The Court certified conditionally the plaintiff class prior to Wagner's final release from state supervision. Pretrial Order filed July 30, 1973. The Supreme Court has held that the fact that the named plaintiff no longer has a personal stake in the outcome of a certified class action does not necessarily render the class action moot. If there remains before the Court a live controversy within the meaning of Article III of the Constitution, a certified class action may proceed to judgment. Franks v. Bowman Transportation Co., 424 U.S. 747, 755, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976); accord, Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975) [parole release].
Plaintiffs allege that their rights to Due Process in parole release proceedings are violated by defendants'
*1323 1. Refusal to promulgate and rank by importance the criteria to be applied to reach parole decisions;
2. Refusal to allow or appoint counsel or a counsel substitute to assist the inmate in presenting his material to the Ohio Adult Parole Authority (hereafter Authority);
3. Refusal to allow the inmate to review at or prior to the parole hearing the totality of information before the Authority or its representatives;
4. Refusal to allow the inmate the opportunity to amplify or rebut prior to and at the parole hearing the information before the Authority; and
5. Refusal to provide the inmate with reasons for denial of parole particularized with reference to the case of each inmate and referring to facts in the case of each candidate for parole.
Plaintiffs request injunctive relief to vindicate their alleged Due Process rights.
Defendants contend that plaintiffs' first claim is moot because the Ohio Department of Rehabilitation has adopted and now applies administrative regulations setting forth "guidance criteria for parole consideration." The parties have stipulated that the Authority is governed solely by these regulations in making the parole release determination. Stipulations filed March 24, 1976. Because "[p]laintiffs do not suggest that these reasons or criteria for denial are inappropriate as considerations to guide and constrain the discretion of the parole board" [plaintiffs' trial brief filed March 24, 1976, p. 19], the Court finds that plaintiffs' first claim is moot.
With respect to the remaining claims, the Court must determine whether an inmate candidate for parole possesses a liberty or property interest sufficient to evoke a right to procedural Due Process. A similar action has been reviewed and rejected by the Court of Appeals for this Circuit, but in the absence of a published opinion revealing the basis for the appellate court's action, this district court cannot dismiss the instant action on the merits out of hand. Scott v. Kentucky Board of Parole, No. 74-1899 (6th Cir. filed January 15, 1975), vacated as moot, ___ U.S. ___, 97 S. Ct. 342, 50 L. Ed. 2d 218 (1976).
Although the United States Supreme Court has not addressed the issue, several courts of appeals have held that limited Due Process rights inhere in parole release proceedings. Admitting that a state parole board retains extensive discretion in determining the appropriateness of parole for each particular inmate, nevertheless, a parole board is not at liberty to deny arbitrarily and capriciously parole authorized by state statute. United States ex rel. Richerson v. Wolff, 525 F.2d 797, 799 (7th Cir. 1975); cert. denied, 425 U.S. 914, 96 S. Ct. 1511, 47 L. Ed. 2d 764 (1976); Bradford v. Weinstein, 519 F.2d 728, 733 (4th Cir. 1974), vacated as moot, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); Childs v. United States, 167 U.S.App.D.C. 268, 511 F.2d 1270, 1280 (1974); contra, Brown v. Lundgren, 528 F.2d 1050, 1053 (5th Cir. 1976).
The rationale of the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), addressed to inmates' Due Process rights in prison disciplinary proceedings lends strong support to plaintiffs' claims in the instant case. In Wolff, supra, the Supreme Court accepted the fact that deprivation of good time would not certainly postpone the date of parole or outright release, nevertheless the Court determined that
The State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within the Fourteenth Amendment `liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that a state-created right is not arbitrarily abrogated. At 557, 94 S.Ct. at 2975.
The State of Ohio has created a right to parole review. Ohio Rev.Code §§ 2967.13, 2967.19; Administrative Regulation 915. *1324 The right to parole review cannot be arbitrarily vitiated without depriving inmates of a liberty interest in violation of Due Process. This Court finds that plaintiffs' claims are cognizable under § 1983.
There is no merit in plaintiffs' claim that inmates are entitled to the assistance of counsel or counsel substitute during parole release proceedings. The Sixth Amendment provides that a criminal defendant shall have the assistance of counsel in a criminal prosecution. A person detained in state custody pursuant to a lawful sentence is not the subject of a "prosecution" when he is considered for parole. Denial of parole is merely the refusal to alter the sentence imposed on conviction. Billiteri v. United States, Bd. of Parole, 541 F.2d 938, 945 (2d Cir. 1976); Cook v. Whiteside, 505 F.2d 32, 34 (5th Cir. 1974); Ganz v. Bensinger, 480 F.2d 88, 90-91 (7th Cir. 1973); but see, Wolff, supra at 418 U.S. 569, 94 S. Ct. 2963 [assistance by another inmate in limited disciplinary situations].
There is no merit in plaintiffs' claim that inmates are entitled to review all the data before the Authority that the Authority may utilize in making its decision. A parole release determination is not an adversary proceeding in the strict sense. The Authority exercises considerable discretion in making its judgment. There are necessary time and security limitations imposed upon the parole release proceeding. If the inmate is adequately informed of the basis for denying his parole he can correct apparent factual errors and challenge the Authority's decision. Prison administrators must have some discretion to limit the scope of the hearing and access of inmates to administrative files. Billiteri, supra, at 945; Childs, supra, 167 U.S.App.D.C. 283, 511 F.2d at 1285; see Wolff, supra, 418 U.S. at 566, 94 S. Ct. 2963.
There is merit in plaintiffs' claim that a candidate for parole be allowed to participate meaningfully in the proceeding by presenting information relevant under the criteria used by the Authority. Due Process is satisfied if the inmate is permitted to submit to the Authority prior to or during the hearing documentary evidence within the inmate's control. It is stipulated that the inmate is notified of the parole hearing at least two weeks before it occurs; that the inmate appears at the hearing; and that the inmate may make an oral statement on his own behalf. It is stipulated that the inmate can obtain an information pamphlet (Exhibits 3, 4; hereafter Ex.) that sets out the scoring code once used by the Authority in marking up its form decision, but this code is no longer used. The Court finds that Due Process requires defendants to inform the inmate well in advance of the hearing of the bases upon which parole may be denied as set forth in the Authority's decision form APA911-912-913-046 (8-1-76) [Ex. 5] or such other bases as it may employ in the future. In this way, the inmate can prepare the data he wishes to submit.
Finally, plaintiffs' claim that they are denied Due Process in the parole proceeding because defendants refuse to provide each inmate with the individualized rationale for the Authority's decision. It is stipulated that the Authority reports its decision to the inmate and, by checking items on a standardized form, identifies broad reasons underlying that decision. Plaintiffs argue that the breadth and vagueness of these "reasons" obfuscate the basis of the Authority's decision and nullify the inmate's opportunity to correct factual errors in data relied upon by the Authority. The four standardized reasons that the Authority may adopt merely state conclusions that the inmate should not be paroled because the Authority "has substantial reason to believe that" the inmate will misbehave in the future; the inmate has misbehaved during confinement; the inmate's release would not further the interest of justice or be consistent with the welfare and security of society; or the Authority requires additional information upon which to base a release decision. The Authority identifies the underpinnings of its conclusion by checking standardized "factors" considered, e. g., "the inmate's conduct during his term of imprisonment [without further elaboration]," *1325 "the inmate's plan or prospects on release," "any other factors which the Authority determines to be relevant."
It is obvious that the Authority's standardized reasons for denying parole provides no means by which the inmate or a reviewing body can ascertain whether the Authority's decision was rationally based on correct facts or any facts peculiar to the inmate. It is stipulated that the Authority does not summarize the facts found by its members and does not summarize all the criteria applied by its members in reaching its decision. The Court finds that the Authority's use of these standardized comprehensive reasons together with standardized value-neutral factors violates the minimum Due Process to which candidates for parole are entitled. In the context of prison disciplinary proceedings the Supreme Court has held that Due Process requires the factfinders to provide a written statement of the evidence relied on and the reasons for their conclusion. Wolff, supra at 564, 94 S. Ct. 2963. Due Process requires no less in parole release proceedings. The Court finds that the Authority must provide each inmate with the grounds for denial of his parole and the essential facts from which the Authority drew the inferences that led to its decision. Haymes v. Regan, 525 F.2d 540, 544 (2d Cir. 1975); Childs, supra, 167 U.S.App.D.C. at 279, 511 F.2d at 1281; see Richerson, 525 F.2d, at 804.
The final matter before the Court is the issue of retroactivity. The instant decision cannot apply to parole proceedings in which the Authority has by the time this opinion and order is filed already rendered its decision, because retroactive application would wreak administrative havoc. Wolff, supra, 418 U.S. at 574, 94 S. Ct. 2963 [disciplinary proceedings]; Bailey v. Holley, 530 F.2d 169, 175 (7th Cir. 1976); Mower v. Britton, 504 F.2d 396, 399 (10th Cir. 1974).
The Court will certify permanently the plaintiff class.
Therefore, for the reasons stated, good cause appearing, it is
ORDERED that defendants' motion to dismiss the action for mootness be, and it hereby is, overruled; and it is
FURTHER ORDERED that defendants' motion for partial summary judgment be, and it hereby is, overruled; and it is
FURTHER ORDERED that defendants, their agents, officers, servants, employees, attorneys, and all those in active concert and participation with them are permanently
ENJOINED TO:
(a) Inform each inmate candidate for parole well in advance of his parole hearing of the bases upon which the Ohio Adult Parole Authority may deny parole;
(b) Permit each inmate candidate for parole to submit to the Parole Authority, prior to or during his hearing, documentary evidence within the inmate's control; and
(c) Provide each inmate hereafter denied parole with a statement of the grounds for denial of his parole and the essential facts from which the Parole Authority drew the inferences that led to its decision;
and it is
FURTHER ORDERED that the plaintiff class be, and it hereby is, permanently certified to include all present and future inmates of Ohio penal institutions who are or become eligible for parole; and it is
FURTHER ORDERED that plaintiff Wagner shall notify the Court regarding the status of his medical claim against defendants within fifteen (15) days from the filing of this opinion and order, so that this action may be concluded promptly.
IT IS SO ORDERED.
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206 A.2d 527 (1965)
RHODE ISLAND ASSOCIATION FOR the BLIND
v.
J. Joseph NUGENT et al.
Eq. No. 3194.
Supreme Court of Rhode Island.
January 26, 1965.
*528 Higgins & Slattery, Eugene V. Higgins, for complainant.
Harold S. Moskol, Special Assistant to the Attorney General, for J. Joseph Nugent.
Joseph G. Kinder, Guardian Ad Litem, and for Persons in the Armed Services, respondents.
POWERS, J.
This is a bill in equity praying for construction of a certain provision of the last will and testament of Mary P. Tillinghast, who died testate on January 22, 1926. When the cause was ready for hearing for final decree in the superior court, it was certified to this court for our determination in accordance with G.L. 1956, § 9-24-28.
The bill was amended, a guardian ad litem appointed, the same individual being appointed attorney for those in the armed services of the United States, and thereafter answers were filed by the attorney general and by the guardian ad litem in his dual capacity. A decree pro confesso was entered against all other respondents.
From the amended bill, answers and evidence the following facts were established.
Mary P. Tillinghast, a resident of the then town of Warwick, executed her last will and testament on May 4, 1925 and thereafter, on September 19, 1925, executed a codicil revoking the fourth clause in her will and substituting therefor a new fourth clause which is now before us for construction. The exact terms of the pertinent clause will be set forth hereafter.
It further appears that at the time the codicil was executed there was in existence a voluntary, unincorporated charitable organization which functioned under the name of "Rhode Island Association for Promoting Interest for the Blind." On December 1, 1925 the instant complainant was incorporated as the "Rhode Island Association for the Blind" and shortly thereafter carried on the work in which its unincorporated predecessor had been engaged.
It is undisputed that the treasurer of the unincorporated association became treasurer of complainant; that complainant took over the offices of the unincorporated society, together with a workshop known as the "Outlook Shop" in which a number of blind persons were gainfully employed; and that on March 27, 1926, the funds of the unincorporated association on deposit in the Rhode Island Hospital Trust Company were transferred to complainant.
Mrs. Helen W. Worden, complainant's executive director, further testified from financial records kept by the unincorporated association and delivered by its officers to complainant that the payroll of the blind persons employed at the "Outlook Shop" disclosed that they were last paid by the unincorporated association on March 27, 1926, the date on which the bank deposit was transferred. It is significant to note that this was more than two months after the death of the testatrix.
Mrs. Worden also testified that it was not until complainant decided to sell the undivided half interest which it believed it had in fee simple in the property devised that a question arose in connection with its title.
Camilo Rodriguez, husband of the testatrix' niece Margaret, testified that he had been well acquainted with the testatrix who at the time of her death was survived by her husband Albert K. Tillinghast, a sister *529 Louise S. Martin, a niece Margaret Rodriguez, and a nephew S. Knowles Martin. The neice and nephew were the only children of Louise S. Martin, the testatrix' only heir-at-law.
He further testified that "the grandfather" had been blind; that the testatrix therefore was interested in the blind generally and in charitable organizations engaged in promoting the welfare of the blind; and that during her lifetime she had made financial contributions to such organizations.
The record further discloses that the testatrix at the time of the execution of her last will and at her death was the owner of a house located at 288 Spencer avenue, Warwick. By the terms of the fourth clause as amended by the codicil, she created successive life estates in that particular property in her husband, her niece Margaret, and her sister Louise S. Martin, in that order.
The niece and the sister were authorized to sell the property if either as a life tenant deemed it advisable, in which event the proceeds were to be put in trust with the net income therefrom going to the tenant for life and the remainder to the Rhode Island Association for Promoting Interest for the Blind and the Society for the Prevention of Cruelty to Animals. It appears that none of the life tenants disposed of the property and upon the death of the sister in 1961 the property passed to the remaindermen as provided in the codicil. The pertinent language of said codicil is as follows:
"Upon the death of my said niece and my said sister or in case both of them shall not be living at the time the provision herein made for them shall take effect, it is my Will that the trustee, if there be one, shall transfer the principal of said trust estate, free and clear of any trust, or if there be no trustee, that said house and land shall go in equal shares to the Rhode Island Association For Promoting Interest For The Blind, located at Providence, Rhode Island, and the Society For The Prevention Of Cruelty To Animals, a corporation located in said Providence."
At the close of the testimony in the superior court the cause was certified to this court for our determination. The following questions have been briefed and argued although they do not appear in the order of certification:
"(1) Is the Complainant, Rhode Island Association For The Blind, the owner in fee of an undivided one-half (1/2) interest in the house and land situated on Spencer Avenue, in the City of Warwick, Rhode Island, under the devise of said real estate by Paragraph First of the Codicil, dated September 19, 1925, to the Will of Mary P. Tillinghast?"
If answer to No. 1 is in the negative, then:
"(2) Does the devise of the house and land situated on Spencer Avenue, in the City of Warwick. State of Rhode Island, under Paragraph First of the Codicil, dated September 19, 1925, to the Will of Mary P. Tillinghast, disclose a general charitable intent so as to permit the application of the Cy-Pres rule?"
The complainant urges that the codicil should be so construed as to answer the first question in the affirmative. It argues that the evidence clearly shows that it became the successor to the original unincorporated association and calls our attention to decisions in several other jurisdictions which, complainant contends, are somewhat analogous. An examination of these cases, however, persuades us that they are not helpful.
The remainder clearly vested at the death of the testatrix on January 22, 1926. Sawyer v. Poteat, 90 R.I. 51, and Hayden for an Opinion, 51 R.I. 117. At that time the unincorporated *530 association was in existence and functioning. The evidence discloses that for at least two months after the testatrix' death it was conducting what appears to have been its principal if not sole enterprise, namely, the "Outlook Shop."
In Guild v. Allen, 28 R.I. 430, this court held that the legal effect of a gift to a voluntary, unincorporated association is a gift to its individual members. The court further held that if not expressed to be in trust nor impressed with any use, charitable or otherwise, the gift was to the individual members absolutely. Thus, if no general charitable use was impressed on the gift over in the instant cause, the one-half interest in the testatrix' property passed to the individual members of the "Rhode Island Association for Promoting Interest for the Blind."
If, however, it appears to have been the intent of the testatrix to impress the property with a charitable use so as to preclude a taking by the individual members or their heirs, such intention must prevail and, even though the members in the aggregate are incapable of holding the property in trust for the purposes intended by the testatrix, the court will appoint a trustee to carry out such intention. Guild v. Allen, supra; Wood v. Trustees of the Fourth Baptist Church, 26 R.I. 594.
In either event, however, complainant's contention as to the first question is without merit and it is therefore answered in the negative.
It is obvious that the answer to the second question determines whether the property devised passed to the individual members of the "Rhode Island Association for Promoting Interest for the Blind" absolutely or precludes them from taking because the devise discloses a dominant general charitable intention. In our judgment, this question must be answered in the affirmative because of several factors having strong probative force.
The testatrix devised equal shares to the unincorporated association and to the Society for the Prevention of Cruelty to Animals as remaindermen in fee simple. The charitable nature of the second-named beneficiary is so well established as to be common knowledge. She coupled these two organizations in a single devise, giving to them as remaindermen title in fee simple to property in which she gave but life estates to three of the four people who were the natural objects of her bounty. Parenthetically, the testatrix had made the nephew a beneficiary in a separate trust. He died, however, in 1927. It would be strange indeed, and not at all probable, that she would give but a limited interest to her husband or next of kin in order to give one half of the fee to charity and the other half to an undetermined, if indeed determinable, number of individuals she might never have known.
Certainly these circumstances create a situation which at least requires looking into further to determine whether such unknown individuals or some charitable use were the intended recipients of her bounty.
Looking then to the testimony of Camilo Rodriguez and Helen W. Worden, we find that the testatrix had a personal interest in the welfare of the blind; that she made financial contributions to promote their welfare; that at least some if not all of such contributions were made to the unincorporated association named in her will; and that it was actively dedicated to the charitable work for which such contributions were made.
In the light of all these circumstances, we are impelled to conclude that the gift to the "Rhode Island Association for Promoting Interest for the Blind" was a charitable use; that it lapsed by reason of the termination of the existence of the unincorporated association subsequent to the testatrix' death; that she had a dominant purpose to devote one half of the specific devise in question to general charities of the type represented by the purposes for which the *531 Rhode Island Association for the Blind was organized; that this general charitable intent cannot be carried out by the particularly named "Rhode Island Association for Promoting Interest for the Blind"; and that its share of the charity should be administered cy pres by the superior court. Rhode Island Hospital Trust Co. v. Williams, 50 R.I. 385, 393.
On February 1, 1965, the parties may present to this court for our approval a from of decree, in accordance with this opinion, to be entered in the superior court.
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425 F. Supp. 244 (1977)
Steve J. GADLER, Plaintiff,
v.
UNITED STATES of America and David Mathews, Secretary of Health, Education and Welfare, Defendants.
No. 3-77 Civ. 27.
United States District Court, D. Minnesota, Third Division.
January 26, 1977.
*245 Philip W. Getts, Dayton, Herman & Graham, Minneapolis, Minn., for plaintiff.
Robert G. Renner, U. S. Atty. by Daniel M. Scott, Asst. U. S. Atty., Minneapolis, Minn., for defendants.
MEMORANDUM ORDER
ALSOP, District Judge.
This matter comes before the court on plaintiff's motion for a preliminary injunction to restrain defendants, their successors, employees, agents and attorneys and all others acting in concert with them from barring plaintiff's importation of Laetrile[1] solely for his personal use.
Plaintiff is an individual who has been examined by Vernon D. E. Smith, M.D., and Irving J. Lerner, M.D., who concluded that plaintiff was suffering from lymphoma, a form of cancer. Dr. Lerner recommended chemotherapy for the treatment of plaintiff's illness. In January, 1976, plaintiff began a program of chemotherapy treatments. After plaintiff had received two treatments of a series scheduled by Dr. *246 Lerner, plaintiff discontinued chemotherapy and travelled to Mexico for the further care and treatment of his disease. There employees at the Centro Medico del Mar examined plaintiff, and Dr. Ernesto Contreras, M.D., director of the Centro Medico del Mar and a physician licensed to practice in Mexico, prescribed daily dosages of Laetrile for the treatment of plaintiff's disease. Plaintiff has continued the regimen prescribed by Dr. Contreras and intends to travel to Mexico for a second physical examination and to purchase a new supply of Laetrile. He seeks a preliminary injunction restraining defendants from barring his importation of Laetrile solely for personal use in treating his condition.
Defendants are the United States and the Secretary of Health, Education and Welfare, who is responsible for the enforcement and administration of the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. They have taken the position that Laetrile is a "new drug" within the meaning of 21 U.S.C. § 321(p)[2] and that plaintiff's proposed conduct is unlawful under 21 U.S.C. § 355(a) because the Food and Drug Administration ("FDA") has not approved a new drug application with respect to the drug.[3]
Plaintiff does not deny that there is no approved new drug application with respect to Laetrile. He argues, however, that Laetrile is not a "new drug" within the meaning of the Act and that, even if Laetrile is a "new drug" within the meaning of the Act, any prohibition on its importation by an individual for his personal use is unconstitutional as a denial of due process and of his right to privacy.
In order to justify the issuance of a preliminary injunction, the moving party has the burden of showing substantial probability of success at trial and irreparable injury to the moving party absent such issuance. Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323, 1326 (8th Cir. 1973); accord, Missouri Portland Cement Co. v. H. K. Porter Co., 535 F.2d 388, 392 (8th Cir. 1976). Thus, plaintiff's right to a preliminary injunction is dependent on his showing of a substantial probability of success concerning his claim that the importation of Laetrile for his personal use is not prohibited by the Food, Drug and Cosmetic Act or that, if it is so prohibited, such a prohibition is unconstitutional.
It is clear that Laetrile is a "drug" within the meaning of the Food, Drug and Cosmetic Act. The word "drug" is defined in 21 U.S.C. § 321(g)(1)(B) to include:
articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals. . .
Thus, it is the intended use of an article which determines whether or not it is a "drug," and even the most commonly ingested foods and liquids are "drugs" within the meaning of the Act if their intended use falls within the definition of § 321(g)(1)(B). See, e. g., Kordel v. United States, 335 U.S. 345, 69 S. Ct. 106, 93 L. Ed. 52 (1948) (compounds of minerals, vitamins and herbs); Seven Cases v. United States, 239 U.S. 510, 36 S. Ct. 190, 60 L. Ed. 411 (1916) (alcohol solution); United States v. Millpax, Inc., 313 F.2d 152 (7th Cir.), cert. denied, 373 *247 U.S. 903, 83 S. Ct. 1291, 10 L. Ed. 2d 198 (1963) ("iron tonic"); United States v. Hohensee, 243 F.2d 367 (3d Cir.), cert. denied, 353 U.S. 976, 77 S. Ct. 1058, 1 L. Ed. 2d 1136 (1957) ("health foods"); Bradley v. United States, 264 F. 79 (5th Cir. 1920) (mineral water); United States v. Vitasafe Formula M, 226 F. Supp. 266 (D.N.J.1964), remanded on other grounds, 345 F.2d 864 (3d Cir.), cert. denied, 382 U.S. 918, 86 S. Ct. 290, 15 L. Ed. 2d 232 (1965) (vitamin and mineral capsules); United States v. 250 Jars, 218 F. Supp. 208 (E.D.Mich.1963), aff'd, 344 F.2d 288 (6th Cir. 1965) (honey); United States v. 46 Cartons, 113 F. Supp. 336 (D.N.J.1953) (cigarettes).
Although plaintiff claims that he does not consider Laetrile to be a drug but a vitamin or a nutritional supplement, in the context of the Food, Drug, and Cosmetic Act it is a "drug" nevertheless. In his complaint and by affidavit plaintiff states that the Laetrile which he seeks to import is to be used for the care and treatment of his cancerous condition. It is, therefore, a "drug," as defined by 21 U.S.C. § 321(g)(1)(B), because it unquestionably is intended for the cure and treatment of a disease in man.
Plaintiff has failed to demonstrate a substantial probability of success with respect to his claim that Laetrile is not a "new drug" within the meaning of 21 U.S.C. § 321(p). In order to prevail on his claim that Laetrile is not a "new drug," plaintiff must establish (1) that Laetrile is generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions in which its use is proposed, (2) that Laetrile had been used in the United States prior to 1938 and that Laetrile's labeling contained the same representations concerning the conditions of its use at that time as it does now or (3) that Laetrile was marketed before 1962 for exactly the same uses for which it is presently intended and that Laetrile was generally recognized by qualified experts as safe for those uses.
The court is aware that plaintiff initiated this action without the benefit of legal assistance[4] and that this matter was set for hearing on relatively short notice.[5] The court is, therefore, disposed to give the broadest possible import to the limited showing submitted in support of plaintiff's position. However, there is nothing presently before the court which demonstrates a substantial probability of success on the merits.
Plaintiff has presented no evidence to show that there is a substantial probability that he will succeed in establishing that Laetrile is generally recognized as safe and effective for the treatment of cancer by experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs. In fact, the only evidence bearing upon this issue is the evidence submitted by defendants, and that evidence is to the effect that Laetrile is not so recognized.
The only evidence presented to establish that Laetrile is exempt pursuant to the "grandfather" clause of 21 U.S.C. § 321(p)(1) consists of a single reference in an exhibit to an affidavit submitted by defendants. That exhibit contains a statement that Ernst T. Krebs, Sr., M.D., claimed to have first used Laetrile shortly after 1920 in his treatment of far-advanced cancer patients. The evidence in that exhibit is wholly insufficient to demonstrate that the exemption applies because that exhibit goes on to state that the Laetrile used in the 1920's was "too toxic" for general use and that only in 1952 had a reportedly "safe" formula been developed by E. T. Krebs, Jr. In short, even if the court were to conclude that there was a substantial probability that plaintiff could show that prior to the enactment of 21 U.S.C. § 321(p) in 1938 Laetrile had been a drug subject to *248 the Food and Drug Act, the court would not be able to conclude that "at such time its labeling contained the same representations concerning the conditions of its use." The record is devoid of any basis for such a conclusion.
Finally, plaintiff has offered no evidence to demonstrate a substantial probability that he will succeed in establishing that Laetrile was marketed before 1962 for exactly the same uses for which plaintiff seeks to import it and that it was generally recognized by qualified experts as safe for those uses. The present record does contain assertions that Laetrile was marketed before 1962 and was used for the treatment of cancer at that time; however, there is no indication that any qualified expert recognized it as safe for such use.
The court concludes that plaintiff has failed to show a substantial probability that he will establish that Laetrile is not a "new drug." See Rutherford v. United States, 542 F.2d 1137 (10th Cir. 1976). In an earlier case decided in this District, Judge Larson decided that, based upon an evidentiary record more complete than the one before this court, there was no probability that two importers and distributors would succeed in establishing that Laetrile was not a "new drug." Hanson v. United States, 417 F. Supp. 30 (D.Minn.), aff'd, 540 F.2d 947 (8th Cir. 1976).
Furthermore, plaintiff has not shown a substantial probability of success with respect to his claim that 21 U.S.C. § 355(a) does not apply to his intended importation of Laetrile solely for his personal use. 21 U.S.C. § 355(a) provides in pertinent part:
No person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application . . . is effective with respect to such drug.
Although plaintiff suggests that, because the Food, Drug and Cosmetic Act is directed toward manufacturers and distributors, § 355(a) should not be applied to a person who intends to import a new drug solely for his personal use, the court is convinced that the statutory language is clear. The statute does not purport to apply only to manufacturers or distributors; it plainly states that "no person[6] shall introduce or deliver for introduction into interstate commerce any new drug. . . ." [emphasis and footnote added]
Likewise, the court is convinced that the purchase of Laetrile in Mexico and the subsequent transportation of that drug to Minnesota is an introduction of Laetrile into interstate commerce. 21 U.S.C. § 321(b) defines interstate commerce as "commerce between any State . . . and any place outside thereof. . . ." Thus, it is clear to the court that what plaintiff intends to do is within the scope of the prohibition of 21 U.S.C. § 355(a).
Furthermore, plaintiff has failed to demonstrate the substantial probability that he will succeed in establishing that the statutory scheme required to gain approval for Laetrile is unconstitutional. The court is concerned that the statutory scheme involved in gaining approval for a new drug application may involve costs which are so substantial as to cause plaintiff and persons similarly situated to forego compliance with 21 U.S.C. § 355(b). However, that scheme is constitutional as an exercise of Congress' power to set standards in order to protect the public from unsafe drugs, Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 93 S. Ct. 2469, 37 L. Ed. 2d 207 (1973), and it is clear that the statute does not require the FDA to approve or disapprove Laetrile in the absence of an application. See Rutherford v. American Medical Ass'n, 379 F.2d 641 (7th Cir. 1967), cert. denied, 389 U.S. 1043, 88 S. Ct. 787, 19 L. Ed. 2d 835 (1968).
Although the statutory scheme does not require the FDA to initiate proceedings to determine whether or not a drug is a "new *249 drug" or to approve or disapprove a "new drug" in the absence of an application, the present controversy amply demonstrates the shortcomings of the Act in that regard. The court is advised that the FDA, notwithstanding the absence of such a statutory procedure, has on its own motion initiated administrative hearings to develop a record upon which it can make such determinations as to Laetrile. The court is of the opinion that such determinations must of necessity be made first by persons equipped by education, training and experience in the field, rather than by courts. When they are afforded a full and complete record upon which to act, such persons are peculiarly suited to make the initial determinations as to whether or not Laetrile is a "new drug," is "grandfathered" or is "safe and effective." Rutherford v. United States, 542 F.2d 1137, 1144 (10th Cir. 1976); see also Weinberger v. Bentex Pharmaceuticals, 412 U.S. 645, 653, 93 S. Ct. 2448, 37 L. Ed. 2d 235 (1973). This court chooses to refrain from making such determinations in the context of these proceedings.
Plaintiff has also failed to show a substantial probability that he will succeed in establishing his claim that the constitutional right of privacy protects his importation of Laetrile solely for personal use. The issue of an individual's right to possess Laetrile for his personal use is not now before the court; the issue of his right to import Laetrile is. Compare Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) with United States v. 37 Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). It is clear that the right to privacy does not protect the importation of items whose introduction into interstate commerce is proscribed by law. See United States v. 37 Photographs, supra; but see Rutherford v. United States, 399 F. Supp. 1208 (W.D.Okla.1975), rev'd on other grounds, 542 F.2d 1137 (10th Cir. 1976).
Because the court has determined that plaintiff has failed to establish a substantial probability of success on the merits based on the record now before the court, it is unnecessary that the court address the issue of whether or not plaintiff has shown irreparable injury.
This court makes no determination as to whether or not the Laetrile plaintiff seeks to import will be effective for the purposes for which he seeks it. By this order the court determines only that upon this record the relief plaintiff here seeks is not available under the law as this court understands it to exist at this time and in this forum.
Upon the foregoing,
IT IS ORDERED That plaintiff's motion for a preliminary injunction be, and the same hereby is, denied.
NOTES
[1] Laetrile is a product also known variously as amygdalin and "Vitamin B-17."
[2] 21 U.S.C. § 321(p) provides:
The term "new drug" means
(1) Any drug . . . the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the condition prescribed, recommended, or suggested in the labeling thereof, except that such a drug not so recognized shall not be deemed to be a "new drug" if at any time prior to the enactment of this Act [June 25, 1938] it was subject to the Food and Drugs Act of June 30, 1906, as amended, and if at such time its labeling contained the same representations concerning the conditions of its use; or
(2) Any drug . . . the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized, but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.
[3] The parties have stipulated that no new drug application has been approved.
[4] Plaintiff apparently retained counsel a day or two prior to the hearing on this motion.
[5] Plaintiff filed his complaint on January 13, 1977, and a hearing was scheduled for January 20, 1977. Plaintiff states that he intends to travel to Mexico for an appointment scheduled for January 27, 1977.
[6] 21 U.S.C. § 321(e) provides: The term "person" includes individual, partnership, corporation, and association.
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425 F. Supp. 1239 (1977)
PACIFIC FAR EAST LINE, INC., a corporation, Plaintiff,
v.
OGDEN CORPORATION, a corporation, et al., Defendants.
No. C-76-2063-CBR.
United States District Court, N. D. California.
January 17, 1977.
*1240 *1241 James D. Boughey, Peter A. Lindh, Gerald A. Buckosky, Dorr, Cooper & Hays, San Francisco, Cal., for plaintiff.
Mark O. Kasanin, Craig McAtee, William H. Armstrong, Thor Wilcox, McCutchen, Doyle, Brown & Enerson, San Francisco, Cal., Edward J. Koehl, Jr., Robert B. Acomb, Jr., Edith Brown Clement, Jones, Walker, Walchter, Poitevent, Carrere & Denegre, New Orleans, La., for defendants Ogden and Avondale.
Max Gillam, Joseph A. Wheelock, Jr., Philip F. Belleville, Latham & Watkins, Los Angeles, Cal., for defendants Talvar, Alliance and American Hydromath.
Richard M. Bryan, Lauren R. Poplack, Farella, Braun & Martel, San Francisco, Cal., for defendant Alliance.
Stephen J. Vergamini, George, Greek, King, McMahon & McConnaughey, Columbus, Ohio, Richard H. McConnell, San Francisco, Cal., for defendant Telmar.
Bartlett A. Jackson, John S. Siamas, Petty, Andrews, Tufts & Jackson, San Francisco, Cal., for defendant Babcock & Wilcox.
William C. Degarmo, Alameda, Cal., Harold C. Nachtrieb, Nachtrieb, Williams & Streitz, San Francisco, Cal., for defendant Paceco.
ORDER OF REMAND
RENFREW, District Judge.
Plaintiff Pacific Far East Line, Inc. ("PFEL"), filed this action in the Superior Court in and for the City and County of San Francisco on August 25, 1976, seeking damages according to proof from multiple defendants for breach of contract, including breach of express and implied warranties, and negligence. In its ninety cause of action complaint, PFEL also seeks punitive damages from Avondale Shipyards, Inc. ("Avondale"), and Ogden Corporation ("Ogden") for willful and malicious breach.
Avondale, the central defendant herein, entered into a written contract with PFEL on November 14, 1967, designated MA/MSB-66 by the Maritime Administration. Under the terms of the contract, Avondale was to construct six "LASH"[1]*1242 vessels for a total contract price of $127,956,000.00. PFEL alleges in its complaint that the ships constructed by Avondale failed to meet contract specifications in numerous fundamental respects.
In addition to Avondale, defendants include Ogden, Avondale's alleged surety, and ten subcontractors responsible for furnishing various appurtenances and component parts for the LASH vessels. PFEL alleges that these component parts have proven deficient during normal operations, subsequent to delivery of the vessels.
Avondale and Ogden removed the entire action to federal court on September 24, 1976, alleging federal jurisdiction based upon 28 U.S.C. § 1331 (federal question) and § 1442 (suits against federal officers).[2] Alliance Machine Company ("Alliance") Telmar, Inc. ("Telmar"), American Hydromath Co. ("Hydromath"), and Babcock & Wilcox Co. ("B & W") subsequently filed additional removal petitions, alleging federal jurisdiction based upon 28 U.S.C. § 1332 (diversity).[3]
On October 12, 1976, PFEL moved to remand the entire action[4] to state court, arguing that removal was improvidently granted. In support of its motion to remand, PFEL advances the following arguments: (1) The complaint is based upon maritime theories and as such is shielded from removal by the so-called "saving to suitors" clause contained in 28 U.S.C. § 1333; (2) The action is not one which "arises under" federal law within the meaning of 28 U.S.C. § 1331; and (3) The claims against Alliance, Telmar, Hydromath, and B & W are not "separate and independent" within the meaning of 28 U.S.C. § 1441(c) and, because other defendants are non-diverse with respect to PFEL, federal jurisdiction cannot be based upon 28 U.S.C. § 1332.
THE "SAVING TO SUITORS" CLAUSE
PFEL characterizes its claim as maritime in nature and concludes that the "saving to suitors" clause of 28 U.S.C. § 1333(1) therefore bars removal.[5] Section 1333 provides in relevant part that:
"The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
"(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled."
*1243 In essence, the statute enables maritime litigants to pursue available common law remedies, if they prefer them to those supplied in admiralty. Wunderlich v. Netherlands Insurance Co., 125 F. Supp. 877, 880 (S.D.N.Y.1954).
In construing 28 U.S.C. § 1333(1) as a bar to removal, PFEL misapprehends the meaning and purpose of the section. The "saving to suitors" clause "has long been construed to afford litigants a choice of remedies, not of forums." Crispin Company v. Lykes Bros. Steamship Co., 134 F. Supp. 704, 707 (S.D.Tex.1955). As stated in The Moses Taylor, 4 Wall. 411, 431, 18 L. Ed. 397 (1867), "It is not a remedy in the common-law courts which is saved, but a common-law remedy." Because common-law remedies may be pursued equally well in federal as in state courts, removal does not work to frustrate the essential purpose underlying § 1333.
Romero v. International Term. Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959), relied on by plaintiff, merely prohibits removal of a maritime action from state court to the admiralty side of federal court. Romero does not bar removal where an independent basis for federal jurisdiction such as diversity exists. See Wright, Law of Federal Courts § 38, p. 133 (2d ed. 1970); 1A Moore on Federal Practice, § 0.167(3-3).
In Crawford v. East Asiatic Company, 156 F. Supp. 571, 572 (N.D.Cal.1957), the court noted that:
"The `savings to suitors' language says nothing about a right to sue in a state court, nor does it contain any reference to removal of a state action. It cannot, therefore, be treated as an express provision by Congress against removal."
In sum, § 1333 bestows upon maritime suitors the right to pursue non-admiralty remedies, but does not foreclose the right of defendants to litigate in federal court if some basis for federal jurisdiction, other than admiralty, exists.
FEDERAL QUESTION JURISDICTION
PFEL characterizes the instant action as one based upon "standard state law breach of contract and tort notions not considered within federal jurisdiction * * *." Motion to Remand at p. 5. According to plaintiff, "The issue is simply whether equipment furnished was deficient and whether the contractors lived up to their warranty obligations. There is no direct federal interest in the outcome of the claims as suggested by the fact that [the government] has not intervened * * *." Reply Memorandum in Support of Motion to Remand at p. 2.
By contrast, defendants Avondale and Ogden assert that the United States is vitally interested in the instant dispute which, they allege, involves a contract dependent on federal law for its interpretation. Memorandum of Points and Authorities in Opposition to Plaintiff's Motion to Remand at p. 2.
In support of their contention that the instant action arises under federal law within the meaning of 28 U.S.C. § 1331, Avondale and Ogden advance the following arguments: (1) PFEL's claims "arise under" the Merchant Marine Act of 1936, which authorizes and governs the contract here at issue; (2) The interpretation of PFEL's contract with Avondale is, or should be, a matter of federal common law; (3) Federal law must be applied here to determine the respective roles of the courts and the Maritime Administration in resolving shipbuilding contract disputes; (4) The government's ongoing interest in the design of LASH vessels mandates application of federal law in an action drawing into question the soundness of government-approved plans and specifications for such vessels; and (5) The United States pecuniary interest in the outcome of the dispute justifies the application of federal, rather than state, law in interpreting the shipbuilding contract.
In considering the propriety of removal under 28 U.S.C. § 1441, a court may consider only "the well pleaded facts of the complaint standing alone and unaided by anticipated defenses, the answer, or the petition for removal." Eickhof Construction *1244 Co. v. Great Northern Railway Co., 291 F. Supp. 44, 47 (D.Minn.1968). See also Nello L. Teer Company v. J. A. Jones Construction Co., 160 F. Supp. 345, 347-348 (M.D.N. C.1958).
Where, as here, removal is predicated upon federal question jurisdiction, "a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. [Citations omitted.] The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. [Citations omitted.]" Gully v. First Nat. Bank, 299 U.S. 109, 112, 57 S. Ct. 96, 97, 81 L. Ed. 70 (1936). Federal question jurisdiction does not lie simply because a defense based on federal law is anticipated. Similarly, a general governmental interest in the subject matter of a dispute will not itself suffice to transform an action based on state-created rights into a federal case. With these precepts in mind, the arguments advanced by Avondale and Ogden will be examined seriatim.
Defendants first contend that "plaintiff's claims arise under the Merchant Marine Act of 1936 [46 U.S.C. §§ 1101 et seq.] which authorizes and governs the shipbuilding contract here at issue." Memorandum of Points and Authorities in Opposition to Plaintiff's Motion to Remand at p. 2. Plaintiff does not purport to assert rights based on the Merchant Marine Act, and its complaint contains no mention of that statute. Defendants must therefore rely on the argument that the Merchant Marine Act is nonetheless implicated, and that from an affirmative rather than a defensive standpoint.
Defendants fail utterly to substantiate their conclusion that the instant action is in fact a "dispute which will necessarily involve interpretation of statutes of the United States, i. e., the Merchant Marine Act." Memorandum of Points and Authorities in Opposition to Plaintiff's Motion to Remand at p. 7. Authority to enter into the shipbuilding contract here in issue may well derive from the Merchant Marine Act of 1936. However, that fact does not transform every dispute concerning the contract into one "arising under" federal law.
In an analogous case, Gully v. First Nat. Bank, supra, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70, the Supreme Court had occasion to consider a suit brought to recover a state tax. The action was successfully removed to federal court on the theory that because the state's power to tax derived ultimately from a federal statute, a claim that state taxes were owing actually arose under federal law. In concluding that removal had been improper, Justice Cardozo wrote:
"That there is a federal law permitting such taxation does not change the basis of the suit, which is still the statute of the state, though the federal law is evidence to prove the statute valid.
"* * * Here the right to be established is one created by the state. If that is so, it is unimportant that federal consent is the source of state authority. To reach the underlying law we do not travel back so far." 299 U.S. at 115-116, 57 S.Ct. at 99.
Similarly, in Rosecrans v. William S. Lozier, Inc., 142 F.2d 118 (8 Cir. 1944), the court concluded that
"* * * [N]o federal law is involved in the making of a contract between two private parties even though the subject matter may be such that the laws of the United States became a part of the contract. That authority to enter into a contract finds its source in some federal law does not necessarily bring a cause of action based upon its breach under federal law. [Citations omitted.] The federal nature of the right to be established and not the source of the authority to establish it is decisive, and not every question of federal law involved in a suit is proof that a federal law is the basis of the suit * * *." 142 F.2d at 123.
Here, as in Gully and Rosecrans, it is unnecessary to travel back to the federal enabling statute in order to find the source of the rights underlying plaintiff's claims. *1245 Defendants' bald assertion that the Merchant Marine Act "governs" the shipbuilding contract notwithstanding, it appears that the text of the contract itself will govern resolution of this dispute, aided where necessary by the Uniform Commercial Code and common law tort principals. As the Supreme Court concluded in Gully, supra, "The most one can say is that a question of federal law is lurking in the background * * *." 299 U.S. at 117, 57 S.Ct. at 99.
Defendants assert that the interpretation of the shipbuilding contract here at issue should be a matter of federal common law. There is little basis for such an assertion. In United States v. Yazell, 382 U.S. 341, 86 S. Ct. 500, 15 L. Ed. 2d 404 (1966), Justice Fortas wrote:
"This Court's decisions applying `federal law' to supersede state law typically relate to programs and actions which by their nature are and must be uniform in character throughout the Nation." 382 U.S. at 354, 86 S.Ct. at 507.
Avondale and Ogden cite no case in which "federal common law" was applied to the interpretation of a shipbuilding contract entered into by private parties but nonetheless argue that state law ought not to apply here, because "plaintiff's claims arise from a contract which is part of a comprehensive federal program demanding national uniformity in the interpretation of such contracts." Memorandum in Opposition at p. 8.
While it is true that the federal government is vitally interested in the nation's shipbuilding program, which is subsidized by the United States and overseen by the Maritime Administration, that interest is limited in character and not necessarily implicated in every dispute to which a shipbuilding contract gives rise.
In the instant case PFEL claims that the LASH vessels constructed by Avondale were deficient in a number of significant respects. Whether the particular vessels delivered met the contract specifications presents a unique factual controversy the resolution of which will not necessarily affect other parties and other contracts. The meaning of the contract's General Provisions, which are standard provisions promulgated by the Maritime Administration for use throughout the shipbuilding industry, are not at issue here. Similarly, the overall design of the LASH vessels, which the Maritime Administration approved, is not in controversy. Where, as here, it is simply alleged that vessels constructed pursuant to a shipbuilding contract do not meet contract specifications in particular respects, there is no pressing need for nationally uniform adjudication.
Avondale and Ogden contend that the proper allocation of decision-making authority between the courts and the Maritime Administration is drawn into question here, and suggest that federal law is required to sort out the respective roles of the two authorities. There is little merit to such an argument. Some of PFEL's claims may, as defendants suggest, be barred due to failure to exhaust administrative remedies. Similarly, the res judicata effects of certain Maritime Administration rulings may preclude PFEL from raising claims already adjudicated through the administrative process. These are issues which may be raised defensively in a state court proceeding. They are not matters of "federal common law," and, as defenses, they do not convert the action into one "arising under" federal law.
Avondale and Ogden contend that an "ongoing federal interest in the design of the LASH vessels" mandates application of federal law in determining whether or not the vessels constructed were deficient. As noted above, PFEL has not by its complaint challenged the government-approved plans or specifications contained in the contract. Rather, PFEL alleges the ships delivered did not meet the specifications in particular respects. To cite one typical example, PFEL alleges in its sixty-first cause of action that the contract specifications called for use of corrosion and weather resistant wafer check valves to relieve pressure build-up in the vessels' tanks. Plaintiff does not quarrel with this contract provision, *1246 but rather contends that the wafer check valves supplied by a subcontractor were not, in fact, corrosion resistant. The Government's interest in the overall design of LASH vessels is not implicated in such a dispute.
Finally, Avondale and Ogden assert that a "strong federal pecuniary interest in the claims plaintiff here asserts" justifies the application of federal law to resolve the dispute. Memorandum in Opposition at pp. 13-18. Regardless of whether the United States actually stands to gain or lose substantial sums as a result of this litigation, Avondale and Ogden have cited no authority for the proposition that federal question jurisdiction can be predicated on the government's monetary interest in the outcome of a controversy. The United States is not a party to this litigation, nor has it sought to intervene or in any other manner evinced an interest in the outcome of the case. The instances in which adjudications between private parties produce ramifications for the federal government are myriad, yet federal jurisdiction does not lie in every such instance. In sum, a case does not "arise under" federal law simply because the government stands ultimately to gain or lose by the result.
EXISTENCE OF "SEPARATE AND INDEPENDENT" CLAIMS
This case could not have been initiated in federal court as a diversity action because complete diversity is lacking. Plaintiff PFEL is incorporated in the State of Delaware, as are defendants Ogden, Reliance, and Cutler-Hammer, Inc.
Despite the lack of complete diversity, four of the defendants herein removed to federal court on the basis of 28 U.S.C. § 1332 and now oppose remand on grounds of diversity.[6] These four defendants, all of them subcontractors who supplied appurtenances and component parts for the vessels constructed by Avondale, seek to bring themselves within 28 U.S.C. § 1441(c) which provides:
"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."
The four subcontractor defendants contend that the claims against them are "separate and independent" within the meaning of § 1441(c) and would be removable on the basis of diversity if sued on alone.
The leading case construing § 1441(c) is American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L. Ed. 702 (1951). In that case the Supreme Court traced the legislative history of § 1441(c), noting that its predecessor provision was framed in terms of "separable" controversies, rather than "separate and independent claims." Behind the change in language which marked the 1948 revision of the removal statute, the Court in Finn divined a Congressional intent to lighten the federal caseload by significantly limiting the right to removal. Characterizing "separate and independent claim" as a narrower category than "separable controversy," the Court concluded that "The Congress, in the revision, carried out its purpose to abridge the right of removal." 341 U.S. at 10, 71 S.Ct. at 538.
In keeping with the perceived legislative purpose underlying the revision of the removal statute, the Court in Finn insisted that the phrase "separate and independent claim" be construed quite strictly.
"Considering the previous history of `separable controversy,' the broad meaning of `cause of action,' and the congressional purpose in the revision resulting in 28 U.S.C. § 1441(c), we conclude that where there is a single wrong to plaintiff, for which relief is sought, arising from an *1247 interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." 341 U.S. at 13-14, 71 S.Ct. at 540.
In the instant case, PFEL has alleged a single wrong within the meaning of Finn. Plaintiff contracted for the construction of six vessels and now asserts that the vessels delivered were deficient in a number of respects. The alleged inadequacy of the vessels represents but a single injury to plaintiff, regardless of the number of parties who supplied component parts for the vessels under subcontracts let by Avondale.
Plaintiff, who is not in privity with the various subcontractors, seeks to proceed against them as a third party beneficiary of the subcontracts. Reliance on that legal theory underlines the integrated nature of the entire transaction, in which PFEL is linked to the subcontractors only through the medium of the prime contractor, Avondale.[7] To characterize the claims against the subcontractors as "separate and independent" within the meaning of § 1441(c) would be to fragment an essentially unitary transaction and ignore the fundamental business reality underlying it. The claim that a particular component part failed to function properly is part and parcel of the general allegation that the vessels, considered in toto, failed to meet contract specifications. In short, the various dealings between PFEL, Avondale, and the subcontractors together constitute an "interlocked series of transactions" within the meaning of American Fire & Casualty Co. v. Finn, supra, 341 U.S. at 14, 71 S. Ct. 534.
The diverse subcontractors who characterize the claims against them as "separate and independent" rely heavily on Climax Chemical Company v. C. F. Braun & Co., 370 F.2d 616 (10 Cir. 1966), cert. denied, 386 U.S. 981, 87 S. Ct. 1287, 18 L. Ed. 2d 231 (1967). In that case Braun, who agreed to design and construct a salt cake and muriatic acid plant for Climax, subcontracted with others for the supply of component machinery. The court concluded that the claims against the subcontractors were "separate and independent" from those asserted against Braun, the prime contractor.
While the court in Climax purported to follow the teachings of Finn, the majority in fact ignored fundamental principals set forth by the Supreme Court in that decision. In Finn, the Supreme Court emphasized that § 1441(c)'s "separate and independent" language was to be construed quite strictly to bar removal of claims which, while "separable," lacked the total dissociation intended by Congress as a prerequisite to removal under the section. As one commentator wrote in the wake of Finn and its progeny:
"Unless violence is to be done to the unambiguous language, to the canons of construction, and to the judicial interpretation which has already been accorded to these and similar words, it must be concluded that `separate and independent' as used in Section 1441(c) means not only `unrelated' but emphatically so. One might correctly speak of a `separate' related claim, but use of the word `independent' underlines the complete degree of dissociation which Congress intended." Lewin, "The Federal Courts' Hospitable Back Door Removal of `Separate and Independent' Non-Federal Causes of Action," 66 Harv.L.Rev. 423, 432.
Inasmuch as the decision in Climax was based on a fundamental misconception concerning the meaning and purpose of § 1441(c), it is not controlling here.
Given the dramatic increase in the federal caseload which has occurred during recent years, strict construction of the removal statute is absolutely essential.[8] Contract *1248 actions in which numerous subcontractors are joined as defendants along with the prime contractor present a common fact situation. Were a single diverse subcontractor to enjoy an absolute right of removal, as Climax apparently holds, the federal dockets would be glutted by such actions. In enacting § 1441(c), Congress could have intended no such result.
For all of the foregoing reasons, IT IS HEREBY ORDERED that this case is remanded to the Superior Court in and for the City and County of San Francisco.
NOTES
[1] "LASH" or "lighter aboard ship" vessels carry pre-loaded barges which are winched directly aboard the mother ship by powerful cranes. The design of such vessels differs significantly from that of vessels designed to carry conventionally containerized cargo.
[2] 28 U.S.C. § 1442 provides that "[a] civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending" (emphasis supplied). The persons enumerated include officers of the United States, officers of federal agencies, and persons acting under color of federal office. The instant action was not brought "against" any of the persons enumerated in § 1442 and even if it had been, defendants herein lack standing to remove under this section. "When an action of the sort specified in § 1442 is brought against a federal officer and others, even the most literal reading would permit the federal officer alone to remove, as was held in Jones v. Elliott, D.C.E.D.Va.1950, 94 F. Supp. 567. For `by them' means `by any of the following persons' and the defendants who are not federal officers are not such persons." Bradford v. Harding, 284 F.2d 307, 310 (2 Cir. 1960). Although 28 U.S.C. § 1442 was one of the grounds set forth in Avondale and Ogden's removal petition, the argument that § 1442 has application here was never subsequently briefed and appears, quite wisely, to have been abandoned.
[3] A fifth subcontractor defendant, Reliance Electric Company ("Reliance") petitioned for removal under § 1332 but withdrew its petition without opposition after PFEL amended its complaint to allege that Reliance was not diverse, as had initially been claimed.
[4] At argument Avondale moved to transfer venue to the Eastern District of Louisiana but in view of the result reached here, the Court need not address that motion.
[5] Avondale and Ogden dispute PFEL's contention that its claims sound in admiralty. In light of the Court's conclusion that the "saving to suitors" clause does not operate as a bar to removal, it is unnecessary to resolve this issue.
[6] The four subcontractor defendants opposing remand are Alliance, Telmar, Hydromath, and B & W.
[7] In Douglass v. Park City Associates, 331 F. Supp. 823, 826 (E.D.Pa.1971), the court held that the claims of a third party beneficiary against the contracting parties could not be "separate and independent" within the meaning of § 1441(c).
[8] According to figures contained in the 1976 Annual Report of the Director of the Administrative Office of the United States Courts, "The civil caseload in the United States District Courts continued its upward trend in fiscal year 1976 as 130,597 cases were filed 11.3% more than in the previous year and 120% greater than the number filed in 1960. This year marks the sixteenth consecutive year that the courts have experienced a rise in civil cases filed. * * * [T]he pending caseload at the end of the fiscal year was 17.1% higher than the pending caseload of only one year ago." 1976 Annual Report of the Director at p. 75.
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425 F. Supp. 5 (1976)
MOUNT SINAI MEDICAL CENTER OF GREATER MIAMI, INC., Plaintiff,
v.
F. David MATHEWS et al., Defendants.
No. 73-804-Civ-JLK.
United States District Court, S. D. Florida, Miami Division.
December 30, 1976.
*6 Lewis I. Horwitz, Broad & Cassel, Bay Harbor Island, Fla., Burton A. Schwalb, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., for plaintiff.
Asst. U. S. Atty. William R. Northcutt, Miami, Fla., for defendants.
ORDER GRANTING TEMPORARY INJUNCTION
JAMES LAWRENCE KING, District Judge.
Plaintiff Mount Sinai Hospital of Greater Miami brought this action against the Secretary *7 of Health, Education and Welfare ("HEW") and Blue Cross of Florida, Inc. to enjoin HEW from recouping alleged Medicare overpayments by withholding future payments by 15%. On February 6, 1974, this court issued a permanent injunction against HEW, holding inter alia that the District Court had federal question jurisdiction over the action, that the claim was not barred by sovereign immunity, and that nonstatutory review of the government's action was proper under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. In addition, the court held that the comprehensive Medicare statutory scheme, 42 U.S.C. § 1395 et seq., proscribed common law recoupment for overpayments resulting from a hospital's providing services not covered by Medicare. Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 376 F. Supp. 1099 (S.D.Fla.1974). On appeal, the Fifth Circuit Court of Appeals reversed and remanded for further proceedings holding that HEW under the common law could setoff future payments to recoup amounts owed to it, notwithstanding statutory and regulatory provisions of the Medicare program. Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 517 F.2d 329, reh. den'd en banc with opinion 522 F.2d 179 (5th Cir. 1975), cert. den'd 425 U.S. 935, 96 S. Ct. 1665, 48 L. Ed. 2d 176 (1976). Now, on remand, Mount Sinai moves this court to re-institute a temporary injunction against HEW until the conclusion of this trial and final adjudication of the controversy. For reasons discussed below, this court grants the injunction.
A temporary injunction is an extraordinary equitable remedy available at the sound discretion of the District Court, Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962), when the record shows that irreparable injury to the movant during the pendency of the action will likely impair the court's ability to render a meaningful decision on the merits. Meis v. Sanitas Service Corp., 511 F.2d 655 (5th Cir. 1975). In evaluating the propriety of a temporary injunction, the following factors are properly considered: (1) the plaintiff's likelihood of sustaining irreparable injury; (2) whether issuance of the injunction is in the public interest; (3) whether the harm to the defendant from the injunction would substantially outweigh the harm to plaintiff were the injunction not issued; (4) whether plaintiff is likely to succeed in trial on the merits. Allison v. Froehike, 470 F.2d 1123 (5th Cir. 1972).
I. IRREPARABLE INJURY, PUBLIC INTEREST AND RELATIVE HARM
Mount Sinai Hospital is a large (700 bed) acute care, non-profit institution located on Miami Beach. Because of the advanced age of the hospital's census, the majority of the hospital's use in recent years has been for Medicare patients. Recent figures indicate that almost 70% of the total hospital operating expenses of over $1 million per week are obtained from Medicare revenues. In addition it is claimed that in terms of the amount of services rendered, Mount Sinai is the largest provider of Medicare services on the Atlantic seaboard. The record reveals that in addition to providing hospital care for the elderly, Mount Sinai furnishes various health care facilities that are unique in the community. Outpatient and dental clinics, as well as a complete 24-hour emergency facility, are provided. These and other programs more integral to the hospital, including departments of pediatrics and obstetrics, a program of free community medical services, and a thorough medical training program, are maintained as services to the community, sometimes at a substantial monetary loss. In addition, the hospital undertakes considerable research in various medical specialities and maintains a position on the threshold of technological development in nuclear medicine, having the only cyclotron in the area (and one of the four in the nation) in neurology, having developed a "brain pacemaker" for the treatment of certain neurological conditions, and in cardiology, having pioneered several surgical developments in that field. Services from these tremendously expensive technologies are available to patients in need, regardless of their abilities to pay.
*8 In spite of the size and development of the hospital, its financial history has been one of continued cash deficits and continuous borrowing. Within the past year the hospital instituted severe cutbacks in employment and equipment in order to improve its fiscal posture. Nonetheless the hospital continues to borrow against future depreciation reserves in order to meet day-to-day expenses and seems to possess less than a million dollars cash-on-hand (or less than one week's operating expenses) that is not "earmarked" for special purposes.
To recover previous Medicare overpayments alleged to total some $6.3 million, HEW indicated its intention to withhold future payments by 15% until repayment is complete. Under recent estimates, this would reduce Mount Sinai's income by some $375,000 per month or $4.5 million per year. Whereas this court does not necessarily agree that such a withholding would be, in the words of plaintiff's witness "catastrophic" to the hospital, nonetheless the court is satisfied as a matter of fact that irreparable injury to the hospital would ensue were the injunction not granted. Evidence has been presented that because of the hospital's shortage of cash-on-hand, this withholding would render the hospital incapable of continuing operations in a normal manner. Apparently Mount Sinai would be forced seriously to curtail services, especially the "loss" services mentioned above, and as well, to meet liquidity needs, to engage in substantial borrowing from financial institutions, perhaps at disadvantageous rates. Furthermore, the hospital would be forced to lay off staff and to delay purchase of new or replacement equipment, all of which would jeopardize the hospital's position of leadership in various medical specialities.
In addition, the court is of the opinion that the public, at least in the greater Miami area, has a considerable interest in, and derives substantial benefit from, the operation of the hospital, both as a provider of medical care and as a facility for research and training in the medical arts. For this reason, the court concludes that the public interest would best be served through enjoining HEW from any withholding of Medicare funds that might tend to jeopardize or curtail the hospital's operation.
Lastly, HEW's fiscal posture, while certainly unenviable due to stupendous overruns in various social welfare programs, seems less precarious than that of the hospital, at least in the short run. For this reason the court concludes that the injury to HEW, were an injunction granted, would not be as severe as that to the hospital, were an injunction denied. In evaluating the propriety of an injunction, there remains to be considered, therefore, only Mount Sinai's likelihood of prevailing at trial on the merits.
II. LIKELIHOOD OF SUCCESS ON THE MERITS
The Medicare Act, enacted as Subchapter XVIII of the Social Security Act, 42 U.S.C. §§ 1395 et seq., provides a federal health insurance for the aged and other qualified individuals. Under part A of the Act, 42 U.S.C. §§ 1395c-1395i-2 (Supp. III), eligible beneficiaries are provided with hospital and related post-hospital services free of charge. Hospitals, or "providers of services", 42 U.S.C. § 1395x(u), are compensated for the "reasonable cost" of services that qualify under the Act. See §§ 1395x(v), f(b); 20 C.F.R. § 405.401 et seq. Sections 1395d and 1395y define services qualified under the Act, but in no case are services qualified, and in no case will a provider of services be reimbursed for services "which are not reasonable and necessary for the diagnosis or treatment of illness or injury . . .." 42 U.S.C. § 1395y(a)(1).
For a thorough discussion of the Medicare statutory scheme see Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 517 F.2d 329, 336-40 (5th Cir. 1975).
On May 10, 1973, Blue Cross of Florida, Inc. who was functioning as a "fiscal intermediary" under the Act, serving as Hew's agent for day-by-day administration of the program, 42 U.S.C. § 1395h, informed *9 Mount Sinai that as a result of an investigation conducted on a sample of cases from the hospital's records, Mount Sinai had performed and collected Medicare payments for, in numerous instances, services that were medically unnecessary. Blue Cross thereupon informed Mount Sinai that that institution had been overpayed some $6.3 million from 1966 to 1971, and that HEW intended to recoup these overpayments through a 15 per cent reduction in future Medicare payments. The hospital then brought this action seeking to enjoin HEW from this withholding.
This court's decision and the Fifth Circuit's appellate ruling are described above in this opinion.
The parties disagree, however, on the issues to be decided by this court on remand. Mount Sinai argues that the Fifth Circuit decided only that common law recoupment could coexist with the Medicare Act, not that common law recoupment was proper in this particular case. Rather, Mount Sinai asserts, it had not had the opportunity through discovery to frame the case with particularity at the time of the earlier proceedings before this court and before the Fifth Circuit. In fact, the hospital contends, HEW should be estopped from attempting to recoup previous overpayments, in this case, because it reviewed and approved the payments as submitted. HEW replies that because they ostensibly followed Medicare statutory procedures, and because these procedures have been found consistent with common law recoupment by the Fifth Circuit, then no issue of estoppel can exist after the appellate decision. Both parties agree, however, that the Fifth Circuit expressly did not decide, but left for this court to decide on remand, the issue of whether Mount Sinai was accorded the extent of procedural due process appropriate in the HEW determination of overpayment.
If plaintiff can demonstrate likelihood of success on the issue of procedural due process, decision of whether other issues have been left open by the Court of Appeals would be unnecessary. The court therefore will consider the due process issue.
The record reveals that on June 19, 1972, Blue Cross and Mount Sinai met to discuss certain charges of medical malpractice, including the furnishing of medically unjustified services, made by certain physicians against the hospital. After this meeting, Blue Cross proceeded to conduct a preliminary investigation, interviewing several members of the Mount Sinai staff. Subsequently, Blue Cross notified the hospital on June 30, 1972, that an audit of greater depth and scope would be indicated. Thereupon Blue Cross advised the hospital on July 28, 1972, to select one of three alternative sampling audit procedures, one involving a sample of an entire representational year, one involving smaller samples of each problem year, 1966-1971 inclusive, and one involving a "full sample" of each problem year. On August 19, 1972, Mount Sinai met with Blue Cross and in that meeting opted for the first alternative. The representational year chosen was 1970, and approximately 850 charts would be reviewed.
According to Blue Cross, the sample auditing procedure was conducted as planned. In December 1972 and again in January 1973, between 80 and 100 physicians from the Florida Medical Foundation Peer Medical Review Committee met to evaluate the sample patient records. The review procedure was described by Blue Cross as follows:
Generally, the reviewing physicians were divided into groups of three or four, with a State Peer Review Committee member seated with each group. The groups were selected in such a fashion that specialists, such as cardiologists, reviewed records involving their specialities. Some of the groups reviewed each hospital chart as a group and reached their decision. The members of other groups reviewed the hospital charts independently. In either event, each finding that one or more days of hospitalization or one or more services were not medically necessary could only be made upon the unanimous agreement of each of the physicians reviewing each chart. If only one out of the four physicians, for example, determined that a particular day of ancillary *10 service was medically necessary, no disallowance was recommended despite the majority view of three out of four that such a day or ancillary service was not medically necessary. Members of Mount Sinai Staff served as reviewing physicians.
After the review was completed, the Blue Cross Utilization Review Department performed statistical analysis to extrapolate the findings for the sample year to all problem years, 1966-1971 inclusive. Conclusions from this analysis were communicated to Mount Sinai on March 28, 1973. Thereafter, in a meeting on April 3, 1973, Blue Cross delivered the following:
(1) A 71-page tabulation of the specific cases involving non-covered days of hospitalization or non-covered procedures or services, setting forth the patient's name, the admission date, the Mount Sinai medical record number, and the days, services or procedures found to have been not medically necessary and therefore not covered by Medicare for each of these specific cases; and
(2) A 3-page summary of the statistical basis of the sample and its application to each year from 1966 to 1971 and the basis for the estimate of overpayment for those years at $6,380,587.40.
On April 12, 1973, Mount Sinai submitted a statement objecting to the sampling procedure, and to the lack of any evidentiary hearing, and documenting the financial condition of the hospital. Several days later Blue Cross notified the hospital that its statement would be evaluated and invited the hospital to submit by April 25 any additional evidence it desired. A meeting was held on May 1, in preparation for which, according to Blue Cross, the hospital had been requested to prepare and present whatever evidence or arguments appropriate. At the May 1 meeting and shortly thereafter, the hospital submitted statements alleging financial hardship and objecting to the proposed action of Blue Cross. Thereafter Blue Cross sent the letter of May 10, informing the hospital that it would begin withholding funds to recoup the previous overpayments.
Procedural due process "imposes constraints on governmental decisions which deprive individuals of `liberty' or `property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendments." Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 901, 47 L. Ed. 2d 18 (1976). HEW agrees that the continued receipt of Medicare payments constitutes "property" within the meaning of due process, but asserts that the administrative procedures followed in this case were adequate under the Constitution and the relevant case law. Plaintiff argues that, in effect, due process requires in this case an oral hearing during which Mount Sinai could present evidence and cross-examine witnesses.
No statute or regulation, of course, could mandate procedures that fail to comply with due process requirements of the Constitution. Plaintiff, however, suggests that a constitutional inquiry may be unnecessary because in this case HEW failed to provide the due process protection that Congress itself intended. But this court held in our earlier ruling that no statute or regulation in the Medicare act precisely governs HEW's attempted recoupment of overpayments rendered due to unnecessary services. The Court of Appeals did not disturb this ruling, and the parties seem to concur as well. However, plaintiff cites several statutory provisions mandating certain procedural guarantees that it feels apply to situations so similar to the present case that congressional intent to provide, for instance, an oral evidentiary hearing, should be inferred by analogy. For example, when a provider is threatened with termination from the Medicare program for providing "unnecessary services," the Professional Standards Review Law, 42 U.S.C. § 1320c et seq. sets forth a procedure, including an oral hearing, for adjudicating claims against the provider. See 42 C.F.R. §§ 101.1403 et seq. Likewise, the 1972 Amendments to the Medicare act, Pub.L. *11 No.92-603 (October 30, 1972), although they are expressly inapplicable to payments made to providers before their enactment, incorporated two provisions into the Act that apply to situations similar to the present one. The first, codified as 42 U.S.C. § 1395y(d) provides that any provider who HEW has determined has furnished services "substantially in excess of the needs of individuals" "shall be entitled to reasonable notice and opportunity for a hearing." 42 U.S.C. §§ 1395y(d)(1)(C), (d)(3). Another, codified as 42 U.S.C. § 1395pp, provides that in certain cases when a provider knowingly furnishes unnecessary services, he is to be accorded the same due process protection as would a beneficiary. 42 U.S.C. § 1395pp(d); see also 42 U.S.C. § 1395ff(b). Detailed procedural requirements in analogous statutes may be persuasive if it appears Congress overlooked these provisions in the instant case; given the comprehensive nature of the Medicare act this seems hardly likely. Instead, one could turn plaintiff's argument around and contend that any absence of procedural requirements in the act was an intentional one. Consequently, citation to analogous statutes cannot be significant one way or the other. Likewise, the 1972 Amendments, expressly inapplicable retroactively, are not in any way indicative of Congressional intent before their enactment. There being no convincing index of Congressional intention of the procedural safeguards to be followed in provider appeals from "unnecessary service" determinations, the court must consider directly the constitutional requisites of procedural due process.
A cornerstone of plaintiff's constitutional argument is the decision of Coral Gables Convalescent Home, Inc., v. Richardson, 340 F. Supp. 646 (S.D.Fla.1972), where the Southern District held that due process required that a hospital be afforded a complete evidentiary hearing before a fiscal intermediary could begin withholding Medicare funds for previous overpayments. Although the overpayments sought to be recouped in Coral Gables originated as compensation beyond the "reasonable cost" of Medicare service, see 42 U.S.C. §§ 1395x(v), f(b), (and not as in the instant case, as compensation for services not covered by the Medicare program, see 42 U.S.C. §§ 1395d, 1395y) we find that learned opinion persuasive (but not controlling). However, recent case law may have diminished its value as precedent to the instant case.
Coral Gables relied principally upon Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), a watershed case in the due process area. In Goldberg the Supreme Court held that a beneficiary could not be denied welfare payments without an oral evidentiary hearing. The test applied in Goldberg was the so-called "brutal need" test, where judicial due process safeguards do not attach unless the plaintiff is "liable to sustain grievous loss" by the government's determination. See Wright v. Finch, 321 F. Supp. 383, 386 (D.C.D.C.1971). Coral Gables went beyond Goldberg and did not require a showing of "brutal need" before attaching procedural due process safeguards.
HEW argues that the Supreme Court's most recent decision in the due process area, Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), jeopardizes the continued viability of the Goldberg line of cases. In Eldridge due process did not require an oral evidentiary hearing before the government could terminate Social Security disability benefits to a beneficiary. According to the Eldridge court, Goldberg is distinguishable primarily because the primary evidence in Eldridge was "routine, standard, and unbiased medical reports" (not lay testimony as in Goldberg) in relation to which "[t]he potential value of an evidentiary hearing [was] substantially less . . . than in Goldberg." 96 S.Ct. at 907. A further distinguishing factor was that "the degree of potential deprivation [was] likely to be less [in Eldridge]." Id. at 906.
It appears that even if Eldridge is honestly distinguishable from Goldberg, those factors that distinguish it cut against plaintiff's argument. As HEW asserts, Mount Sinai can hardly argue its "degree of potential deprivation" with the same conviction it *12 could be argued by a lone welfare beneficiary threatened with loss of his welfare stipend. At the very least, Eldridge can be seen as an affirmance of the "brutal need" test and thus as calling into question any expansion of Goldberg discarding this test.
Nonetheless, it would be premature for this court to determine, at this stage in the proceedings, exactly what due process procedures are mandated by the Constitution in a case of this type. For plaintiff, in requesting a temporary injunction, need not show that he is currently entitled to judgment, but need only raise "serious and substantial questions, indicating likely success on the merits." County of Alameda v. Weinberger, 520 F.2d 344, 351 (9th Cir. 1975). At oral hearing on this motion, plaintiff, although according to him aggrieved by still-incomplete discovery even after the several years of pendency of this action, brought forth certain evidence that seems to raise "serious and substantial questions" to this forum.
Specifically, plaintiff introduced evidence of communications between HEW and Blue Cross supposedly made just before Blue Cross' letter of May 10, 1973, to plaintiff, wherein Blue Cross stated the method and conclusions of its overpayment determinations. In the exchange between HEW and Blue Cross, Blue Cross supposedly admitted that based on the study it had conducted until that date, it could honestly endorse no "determination" of overpayment, but that additional evidence would need to be obtained. HEW supposedly indicated to Blue Cross that the latter would, in the imperative, communicate to the hospital that such a "determination" had been made. Although the court expresses no opinion on the sufficiency or reliability of this evidence at this time, such evidence would be significant if true, for the hospital had been informed, and undoubtedly believed, that any determinations of overpayment had been made by the disinterested fiscal intermediary Blue Cross and not by the adverse party HEW.
Further evidence presented at oral hearing raised some question of whether during Blue Cross' audit of sample hospital cases conducted in December 1972 and January 1973, complete unanimity of the reviewing physicians was in fact obtained for each determination of overpayment, as Blue Cross had represented both to plaintiff in numerous communications and to this court and the Court of Appeals. For several cases which had been flagged as instances of overpayment by Blue Cross, documents purporting to be reports from the reviewing physicians were produced. Some of these reports contained dissenting views that no unnecessary (and thus noncovered) services had been performed, thus suggesting that the opinion in these cases had not been unanimous. There was, however, much confusion surrounding the authorship of the reports, which confusion could not be erased by the reviewing physicians' themselves, as they were unavailable to testify, their identities remaining unrevealed by Blue Cross.
Without evaluating this evidence, the court is of the opinion that it raises "serious and substantial questions" of whether the procedure followed by HEW comports with any reasonable conception of procedural due process. This in no way indicates this court's disapproval (or approval) of the procedure of peer-group evaluation of a sample of cases, followed by statistical extrapolation of the result, to evaluate the extent of previous Medicare overpayments for unnecessary services. Indeed, as plaintiff admits, individual evaluation of each hospital case alleged to involve unnecessary services here would represent an intolerable administrative and judicial burden. In fact, a peer-group review procedure similar to the one allegedly employed by HEW here was authorized by Congress in the 1972 Medicare Amendments (inapplicable retroactively). See 42 U.S.C. § 1395y(d)(4). Nevertheless, in view of plaintiff's evidence, we cannot be sure at all but can only speculate what actual procedure HEW followed in this case. Hence, serious due process questions have been raised.
Similarly, the court does not hold that lack of unanimity in such a peer-group *13 review procedure in itself violates due process. But Mount Sinai justifiably relied upon HEW's representations that the procedure required unanimity of the reviewing physicians. If in fact, the procedure did not so require, the response of the hospital to the earlier communications of HEW might well have been different. Due process may not require unanimity or any other specific attribute (this the court does not decide), but due process certainly requires that the government's representations of the procedure it has followed be accurate and correct. Likewise, HEW may have the right to decide whether an attempt to recover alleged overpayments should be made, but it cannot represent to the hospital that the fiscal intermediary Blue Cross in fact made an independent decision.
Therefore, in view of the irreparable harm Mount Sinai is apt to suffer if HEW withholds some $370,000 per month of presently earned Medicare payments; in view of the importance of this hospital to the community and, thus, the public interest in the continued viability of Mount Sinai; in view of the lack of any immediate fiscal danger to HEW; and in view of the substantial and serious due process questions the hospital has raised concerning the propriety of the procedures employed by HEW in its determination of overpayment, this court does hereby
ORDER and ADJUDGE that Mount Sinai's motion for a temporary injunction be, and the same is, hereby granted. HEW shall not withhold, in order to recover alleged overpayments, any Medicare payments otherwise due the hospital, for the pendency of this action and until its final adjudication.
DONE and ORDERED in chambers at the United States District Courthouse, Miami, Dade County, Florida, this 30th day of December 1976.
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425 F. Supp. 123 (1977)
John Anthony LUCIDO, Plaintiff,
v.
CRAVATH, SWAINE & MOORE, Defendant.
No. 75 Civ. 6341.
United States District Court, S. D. New York.
January 12, 1977.
*124 *125 Karpatkin, Pollet & LeMoult, New York City, for plaintiff; Michael N. Pollet, Alfred Siegel, New York City, of counsel.
Alan M. Dershowitz, Cambridge, Mass., for plaintiff.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant; Simon Rifkind, Morris B. Abram, Doris Carroll, New York City, of counsel.
Equal Employment Opportunity Commission, Washington, D. C., amicus curiae; Marian Halley, Washington, D. C., of counsel.
The Catholic League for Religious and Civil Rights, New York City, amicus curiae; David R. Francescani, New York City, of counsel.
GAGLIARDI, District Judge.
The plaintiff, John Anthony Lucido, is a lawyer who was employed by the defendant law firm, Cravath, Swaine & Moore ("Cravath"), as an associate attorney. Plaintiff alleges that he was unlawfully discriminated against as an employee of the defendant and that his employment was unlawfully terminated because of his national origin or religion or both. His complaint asserts two causes of action. Count I charges the defendant with violating Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII" and "the Act"). Count II charges the defendant with breach of an employment contract with the plaintiff. Jurisdiction is asserted under 28 U.S.C. §§ 1343(4) and 1332.
Cravath moves, pursuant to Rules 12(b)(1) and 12(b)(6) Fed.R.Civ.P., to dismiss Count I of the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Defendant also moves, pursuant to Rule 12(b)(1) Fed.R.Civ.P., to dismiss Count II of the complaint for lack of subject matter jurisdiction.[1] For the reasons stated herein, the court denies defendant's motion to dismiss.
Plaintiff is a New Jersey resident of Italian ancestry and a Catholic. He was employed in the litigation department of the defendant from July 19, 1965 until March 13, 1973. Defendant is a law firm organized as a partnership under New York law, N. Y. Partnership Law §§ 1 et seq. (McKinney's 1948), with its principal place of business in New York City.[2]
Lucido commenced suit in this court on December 19, 1975. Prior to bringing this suit, he filed complaints with the New York City Commission on Human Rights and the Federal Equal Employment Opportunity Commission ("EEOC") on June 14, 1973. On September 22, 1975, pursuant to plaintiff's request, the EEOC issued a right-to-sue letter, and this suit was timely commenced thereafter. Plaintiff therefore has complied with the exhaustion requirements of Title VII, 42 U.S.C. § 2000e-5.
In considering defendant's motions to dismiss, this court must accept the well-pleaded material allegations of the complaint as true. The court, of course, is not passing upon the merits of whether plaintiff was treated fairly in his employment, nor is it considering the matter of discovery or the nature of the remedy should plaintiff prevail in his suit on the merits.
Count I of the complaint, the cause of action brought under the Civil Rights Act, should not be dismissed for failure to state a claim unless it appears to a certainty that the plaintiff would not be entitled to recover *126 under any state of facts which could be proved in support of his claim. Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); 2A Moore's Federal Practice ¶ 12.08 at 2271-74 (2d ed. 1975).
The purpose of Title VII of the Civil Rights Act is to eliminate discrimination in employment based on race, color, religion, sex, or national origin. House Judiciary Comm. Report, No. 914, 88th Cong., 1st Sess. 26 (1963), as amended. The courts have accorded a liberal interpretation to Title VII in order to effectuate this Congressional purpose. See Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976); Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S. Ct. 2058, 32 L. Ed. 2d 343 (1972). Congress clearly included in the objectives of Title VII the elimination of job discrimination in professional fields including law and medicine.[3]Equal Employment Opportunity Commission v. Rinella & Rinella, 401 F. Supp. 175, 179-80 (N.D.Ill.1975); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y.1973), appeal dismissed, 496 F.2d 1094 (2d Cir. 1974).
The key provision of Title VII for the consideration of Cravath's motion to dismiss is Section 703(a) of the Act, which provides that:
It shall be an unlawful employment practice for an employer
(a) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)
This language indicates a Congressional intent to define discrimination in the broadest possible terms and to include the entire scope of the working environment within the Act's protective ambit. Rogers v. EEOC, supra at 238; see Weise v. Syracuse University, 552 F.2d 397, 409-410 (2d Cir. 1975); Sibley Memorial Hospital v. Wilson, 160 U.S.App.D.C. 14, 488 F.2d 1338, 1341 (1973); Puntolillo v. New Hampshire Racing Commission, 375 F. Supp. 1089, 1091-92 (D.N.H.1974).
Under the definitional provisions of Title VIII, Cravath concededly qualifies as an "employer" within the meaning of the Act. An employer under Section 701(b) of the Act means "a person engaged in an *127 industry affecting commerce who has fifteen or more employees . . ."[4] 42 U.S.C. § 2000e(b). Under Section 701(a) of the Act, "[t]he term `person' includes . . partnerships . . ." 42 U.S.C. § 2000e(a). Cravath as a partnership with over 400 legal and non-legal employees which does business with both nationwide and international clients qualifies as an "employer" under Title VII.
Plaintiff qualifies as an "employee" within the meaning of the Act. Under Section 701(f) of the Act, "[t]he term `employee' means an individual employed by an employer . . ."[5] 42 U.S.C. § 2000e(f). Plaintiff as an associate attorney at Cravath could not be considered anything but an employee of the firm. See EEOC v. Rinella & Rinella, supra at 179-181. All of the discriminatory acts that Lucido has alleged in his complaint occurred between 1965 and 1973 while he was an associate attorney employed by Cravath.
Thus the essential question in the court's consideration of defendant's motion to dismiss is whether the plaintiff has properly alleged that his employer, Cravath, unlawfully discriminated against him with respect to his "terms, conditions, or privileges of employment" or limited, segregated or classified him in a way that "deprive[d] or tend[ed] to deprive [him] of employment opportunities" because he was an Italian and/or Catholic.
Lucido in his complaint alleges that as an employee of Cravath he was discriminated against with respect to work assignments, training, rotation and outside work opportunities. These claims constitute allegations of discrimination with respect to "terms, conditions, or privileges of employment" and "employment opportunities" under Title VII. While these allegations are general and indefinite, mere vagueness or lack of detail is not grounds for dismissal of the complaint. Ybarra v. City of San Jose, 503 F.2d 1041, 1044 (9th Cir. 1974); 2A Moore's Federal Practic ¶ 12.08 at 2274-85 (2d ed. 1975). Therefore, this aspect of the complaint withstands the motion to dismiss under Rule 12(b)(6).
Another element of unlawful discrimination alleged in plaintiff's complaint is that the defendant failed to promote him to partner because of his national origin or religion or both. In this court's view, under the facts set forth in the complaint, the opportunity to become a partner at Cravath was a "term, condition or privilege of employment" and an "employment opportunit[y]" within the meaning of the Act. Lucido has alleged he was deprived, from the beginning of his employment as an associate attorney at Cravath, of the opportunity to become a partner by reason of discrimination during that period of time. As a result, this element of the complaint also states a claim upon which relief can be *128 granted and must survive the motion to dismiss.
Lucido, in his complaint, alleges that the defendant, which is comprised of 48 partners and employs 130 associate attorneys, employs those associates with the understanding that after a reasonable period of time they will be afforded the opportunity of being promoted to partnership if they perform their duties as associate attorneys satisfactorily, and if not promoted they will be required to seek employment elsewhere. Lucido claims that he was told of this "up or out" policy of Cravath at his employment interview, and, relying on the unimpeded opportunity for promotion to partnership, he accepted the position of employment offered by Cravath. At his interview, Lucido alleges, he was given other representations and assurances upon which he also relied, including: (1) the defendant only employed associate attorneys immediately upon graduation from law school or some short time thereafter; (2) defendant filled the partnership position exclusively by promoting associate attorneys from within defendant law firm; (3) promotion to partnership would depend on an associate attorney's own efforts and ability without regard to business contracts and social background; and (4) defendant would not employ relatives of partners or clients on the legal staff.
According to the complaint, Lucido went to work for Cravath with the intent to become a partner and continued to work for over seven years for the defendant in reliance upon the firm's stated policy to fairly consider him for that position. Lucido further alleges that he worked for the law firm as an associate attorney on the assumption that promotion to partnership would depend on his own efforts and ability, that only associate attorneys at Cravath could be considered for partner and that if he was not made partner he would be discharged. This Cravath policy, as set forth in plaintiff's complaint, makes the opportunity to be promoted to partner "a term, condition, or privilege of employment" under Section 703(a)(1) of Title VII and an "employment opportunit[y]" within the meaning of Section 703(a)(2) of Title VII.
Defendant contends that Title VII does not extend to the relationship of partners among themselves, and therefore cannot apply to the process whereby members of a law partnership invite an attorney to become their partner. Because of the issues raised in this case, the court need not decide whether Title VII applies to partners inter se. However, even assuming that Title VII does not apply to such a relationship, the protection the Act affords to Lucido for the unlawful discrimination he allegedly suffered as an employee in not being selected for partner solely because he is an Italian Catholic would not be affected. The applicability of Title VII might be different if the defendant were firing a partner or considering a non-associate for partner, but, under the facts in the complaint, there is a clear employer-employee relationship between Cravath and Lucido and discrimination in a promotional opportunity during that relationship is covered by Title VII.
The opportunity to be promoted to a position not itself covered by Title VII does not mean that discrimination in that promotion cannot be protected by Title VII. In fact, the opportunity to be considered for a job not covered by Title VII can itself be "a term, condition or privilege of employment" and/or an "employment opportunit[y]." In a parallel situation under the National Labor Relations Act, an employee, if promoted to a supervisory position, would no longer be protected by that Act. The Second Circuit Court of Appeals, in upholding the applicability of National Labor Relations Act, stated:
[E]ven if we assume, arguendo, that an applicant for a supervisory position who was not already an employee of this particular employer would not have been a protected employee under the Act, it does not follow that Finch was similarly not protected. At the time the discrimination took place he was clearly a protected employee, and his prospects for promotion were among the conditions of his employment. The Act protected him so *129 long as he held a nonsupervisory position, and it is immaterial that the protection thereby afforded was calculated to enable him to obtain a position in which he would no longer be protected.
National Labor Relations Board v. Bell Aircraft Corp., 206 F.2d 235, 237 (2d Cir. 1953); accord, Golden State Bottling Co., Inc. v. National Labor Relations Board, 414 U.S. 168, 188, 94 S. Ct. 414, 38 L. Ed. 2d 388 (1973). The scope of the protections of Section 703(a)(1) and (2) of Title VII afforded the plaintiff as an employee cannot be limited on the facts of this case. See Pettway v. American Cast Iron Pipe Co., 332 F. Supp. 811, 815 (N.D.Ala.1970), rev'd on other grounds, 494 F.2d 211 (5th Cir. 1974); cf. Sibley Memorial Hospital v. Wilson, supra at 1341; Puntolillo v. New Hampshire Racing Comm., supra at 1091-92.
The court's decision to apply Title VII in this case does not infringe upon any First Amendment right of privacy or freedom of association of the members of defendant law firm. Firstly, the court does not recognize any First Amendment privacy or associational rights for a commercial, profit-making business organization of the nature of the Cravath partnership. Cases recognizing such First Amendment rights refer to fraternal or social organizations not business organizations. Compare Griswold v. Connecticut, 381 U.S. 479, 483-86, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); NAACP v. Alabama, 357 U.S. 449, 462-63, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958), with Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 2596-97, 49 L. Ed. 2d 415 (1976) and Bellis v. United States, 417 U.S. 85, 92-95, 100-01, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974).
Furthermore, even if the Cravath partnership did enjoy First Amendment protections, the application of Title VII to the process whereby Cravath promotes its employees to partner would not infringe the partnership's First Amendment rights. See Runyon v. McCrary, supra, 96 S.Ct. at 2596-97; Norwood v. Harrison, 413 U.S. 455, 470, 93 S. Ct. 2804, 37 L. Ed. 2d 723 (1973). Application of Title VII to this case does not prevent the partners from associating for political, social and economic goals. United States v. International Longshoremen's Assn., 460 F.2d 497, 501 (4th Cir.), cert. denied, 409 U.S. 1007, 93 S. Ct. 439, 34 L. Ed. 2d 300 (1972); see Runyon v. McCrary, supra, 96 S.Ct. at 2596-97. The discretionary, subjective judgment that necessarily goes into the Cravath partnership promotion process as described in the complaint and the application to that process of N.Y. Partnership Law § 40(7), allowing the unanimous consent of the partners for selection of a new partner, are not limited by the application of Title VII except to preclude factors of race, color, religion, sex, or national origin from being considered in this promotion process.[6]See Kohn v. Royall, Koegel & Wells, supra at 521.
As a result, the court denies defendant's Rule 12(b)(6) motion to dismiss Count I of the complaint for failure to state a claim upon which relief can be granted. Defendant's Rule 12(b)(1) motion to dismiss Count I must similarly be denied. A cause of action having been founded under Title VII, jurisdiction is properly based on 28 U.S.C. § 1343(4).
Count II of the complaint alleging breach of an employment contract must also survive a Rule 12(b)(1) motion to dismiss, the doctrine of pendent jurisdiction being invoked because of the federal law claim alleged in Count I. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933).
So Ordered.
NOTES
[1] In deciding defendant's motions to dismiss, the court elects not to consider the affidavit of the plaintiff in opposition to the motions. See Rule 12(b) Fed.R.Civ.P.
[2] The court does not find diversity jurisdiction in this case. A number of Cravath partners are citizens of New Jersey, as is the plaintiff, which defeats diversity jurisdiction since the citizenship of the partnership for diversity purposes is that of each partner. Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456, 20 S. Ct. 690, 44 L. Ed. 842 (1900); Woodward v. D. H. Overmyer Co., Inc., 428 F.2d 880, 883 (2d Cir. 1970), cert. denied, 400 U.S. 993, 91 S. Ct. 460, 27 L. Ed. 2d 441 (1971); Molasky v. Garfinkle, 380 F. Supp. 549, 553 (S.D.N.Y.1974).
[3] This Congressional objective is borne out in the legislative history to the 1972 amendments to Title VII. An amendment was proposed in the Senate designed to exclude physicians and surgeons employed by public or private hospitals from Title VII. In speaking out against the amendment which was ultimately defeated, Senator Javits said:
One of the things that those discriminated against have resented the most is that they are relegated to the position of the sawers of wood and the drawers of water, that only the blue collar jobs and ditchdigging jobs are reserved for them; and that though they built America, and certainly helped build it enormously in the days of its basic construction, they cannot ascend the higher rungs in professional and other life.
* * * * * *
Yet this amendment would go back beyond decades of struggle and of injustice and reinstate the possibility of discrimination on grounds of ethnic origin, color, sex, religion just confined to physicians or surgeons, one of the highest rungs of the ladder that any member of a minority could attain and thus lock in and fortify the idea that being a doctor or surgeon is just too good for members of a minority, and that they have to be subject to discrimination in respect of it, and the Federal law will not protect them. 118 Cong.Rec. 3802 (1972).
Quoted in EEOC v. Rinella & Rinella, 401 F. Supp. 175, 180 (N.D.Ill.1975).
[4] The provision continues by enumerating specific exceptions from the "employer" category under the Act:
. . . such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers. 42 U.S.C. § 2000e(b).
Cravath is not exempted under any of these specific exceptions.
[5] The provision continues by enumerating specific exceptions from the "employee" category under the Act:
. . . except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be such officer's personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. 42 U.S.C. § 2000e(f).
Lucido is not exempted under any of these specific exceptions.
[6] If the N.Y. Partnership Law § 40(7) is inconsistent with the application of Title VII in this case, Title VII, which expressly preempts state law contrary to it, controls. 42 U.S.C. § 2000e-7; U.S.Const. art. 6, § 2.
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846 S.W.2d 564 (1993)
James W. DAVIS, Appellant,
v.
STATE of Texas, Appellee.
No. 3-92-279-CV.
Court of Appeals of Texas, Austin.
January 20, 1993.
*566 Tom C. Ingram, Jr., Dallas, for appellant.
Dan Morales, Atty. Gen., Robert P. Nunis II, Asst. Atty. Gen., Austin, for appellee.
Before CARROLL, C.J., and JONES and KIDD, JJ.
PER CURIAM.
This is a franchise tax case. Ad Agency, Inc. (the corporation) was a Texas corporation. Appellant James W. Davis was the corporation's sole shareholder, president, and director. On September 6, 1990, the State of Texas[1] filed suit against the corporation and Davis seeking to recover franchise taxes,[2] penalties, and interest incurred in the corporation's name. The State sought to hold Davis individually liable for the franchise debt alleging, alternatively: (1) that the corporation was Davis' alter ego; (2) that Davis operated the corporation as a sham to perpetrate a fraud on its creditors; and (3) that Davis, as an officer and director of the corporation, was liable for the tax debt pursuant to Tex.Tax Code Ann. § 171.255 (West 1992). Davis filed a general denial and pleaded limitations as an affirmative defense. The corporation did not answer. After limited discovery, both the State and Davis filed motions for summary judgment. The trial court issued an order denying Davis' motion for summary judgment. The trial court rendered a separate final judgment granting the State's motion for summary judgment and awarding the State the amount of $4,599.78 from the corporation and Davis, jointly and severally. In three points of error, Davis complains that the trial court erred both in granting the State's motion for summary judgment and in denying his motion for summary judgment.[3] We will reverse the trial court's final judgment as to Davis.
DISCUSSION
Standard of Review
The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. This Court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Nixon v. Mr. Property Mgt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
The State's Motion for Summary Judgment
In his third point of error, Davis asserts that the trial court erred in granting the State's motion for summary judgment because the motion did not state the specific grounds on which it is based. Tex. R.Civ.P. 166a(c). However, the failure of a motion for summary judgment to specify grounds is a defect of form that is waived unless excepted to before rendition of judgment. Westchester Fire Ins. Co. v. Alvarez, *567 576 S.W.2d 771, 773 (Tex.1978). Davis has waived his complaint because he did not except to the alleged defect in the trial court. Point of error three is overruled.
In his first point of error, Davis asserts that the trial court erred in granting the State's motion for summary judgment. First, Davis argues that he is not liable for the corporation's franchise taxes because there is no summary judgment proof that the corporation was his alter ego or that he operated the corporation as a sham to perpetrate a fraud. In its brief, the State admits that its motion for summary judgment is not based on alter-ego or sham-to-perpetrate-a-fraud "causes of action." The trial court may not grant summary judgment on a theory not addressed in the motion for summary judgment. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983). The only remaining theory the State pleaded as a basis for Davis' personal liability for the franchise taxes and penalties is statutory liability based on section 171.255.
Section 171.255 provides, in pertinent part:
If the corporate privileges of a corporation are forfeited for the failure to file a report or pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived. The liability includes liability for any tax or penalty imposed by this chapter on the corporation that becomes due and payable after the date of the forfeiture. Tex.Tax Code Ann. § 171.255(a) (West 1992) (emphasis added).[4]
Davis argues that section 171.255 does not impose liability on officers or directors of a corporation for franchise taxes that become due before the date of forfeiture of corporate privileges. Although Davis did not specifically raise this complaint in his response to the State's motion for summary judgment, he did assert that the State failed to show that he was individually liable for franchise taxes. We will, therefore, construe Davis' complaint to assert that the State did not show as a matter of law that Davis was individually liable for the franchise taxes, penalties, and interest pursuant to section 171.255. See State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex.1986) (nonmovant must expressly present to trial court any reasons for avoiding movant's right to summary judgment; absent response raising such reasons, these matters may not be raised for first time on appeal); O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976) (rule of liberal construction applies to points in appellant's brief; merits of error will be ruled on in light of statement and arguments). It is the State's burden, then, to show that, as a matter of law, the franchise taxes, penalties, and interest for which it seeks to hold Davis liable were imposed by chapter 171 and were due after the date the corporate privileges were forfeited.
The Summary-Judgment Proof
When both parties move for summary judgment, the trial court may consider the combined summary-judgment evidence to decide how to rule on the motions. Woods v. Applemack Enter., 729 S.W.2d 328, 331 (Tex.App.Houston [14th Dist.] 1987, no writ); River Oaks Shopping Ctr. v. Pagan, 712 S.W.2d 190, 193 (Tex.App. Houston [14th Dist.] 1986, writ ref'd n.r.e.). The summary-judgment proof includes the State's and Davis' answers to interrogatories and exhibits attached to the parties' respective motions for summary judgment and responses.
The State relies on Davis' motion for summary judgment to establish the date the corporate privileges were forfeited. In his motion for summary judgment, Davis alleges that the corporate privileges were forfeited on June 24, 1985. Assertions of fact in live pleadings of a party not *568 pleaded in the alternative are regarded as formal judicial admissions and are conclusively established without the necessity of other evidence. While it is a well-settled rule in summary-judgment proceedings that pleadings may not constitute proof, facts alleged in those pleadings may constitute judicial admissions; judicial admissions are not proof, but a waiver of proof. Galvan v. Public Utilities Board, 778 S.W.2d 580, 583 (Tex.App.Corpus Christi 1989, no writ). We hold that Davis' motion for summary judgment establishes that the corporate privileges were forfeited on June 24, 1985. Accordingly, in order for the State to prevail on its motion for summary judgment, it had to show that, as a matter of law, the franchise taxes, penalties, and interest were due after June 24, 1985. Tex.Tax Code Ann. § 171.255 (West 1992).
The State's exhibit "A" attached to its motion for summary judgment is the comptroller's "Certified Claim for Texas Franchise Tax" ("comptroller's claim").[5] The comptroller's claim recites, in pertinent part, that the corporation was incorporated on October 20, 1982; the corporation's corporate privileges were forfeited "for failure to pay franchise tax and/or failure to file franchise tax reports) required by Tex. Tax Code Ann. ch. 171, and the corporation's corporate privileges have not been revived"; the corporation is liable for franchise tax, penalty, and interest computed through May 22, 1991; and the officers and directors are liable for tax, penalty, and interest for a 1983-86 audit that accrued after the corporation's corporate privileges were forfeited.[6] The comptroller's claim then recites that the tax summary is for the year 1986, and is for tax, penalty, and interest calculated through June 18, 1991. The comptroller's claim does not recite the date that the franchise taxes were due. The State relies on a notice attached to its response to Davis' motion for summary judgment to establish the date the franchise taxes were due. We conclude that the State is not entitled to summary judgment because the summary-judgment proof does not conclusively establish the date the franchise taxes were due.
Although the comptroller's claim recites that director and officer liability for the taxes, penalties, and interest "accrued after the corporation's corporate privileges were forfeited," it also recites that the tax summary is for the year 1986. The term "1986" is susceptible to more than one meaning because portions of two regular annual tax periods are included within the calendar year 1986.[7] The first tax period is the regular annual tax period beginning on May 1, 1985, and ending on April 30, 1986. The franchise tax due date for this tax period is March 15, 1985.[8] The corporate *569 privileges were forfeited June 24, 1985. Thus, the due date for that portion of the tax debt that is based on this first tax period is before June 24, 1985, and Davis cannot be held personally liable pursuant to section 171.255.
The second tax period is the regular annual tax period beginning on May 1, 1986, and ending on April 30, 1987. The franchise tax due date for the second tax period is March 15, 1986,[9] which is after the date the corporate privileges were forfeited. Thus, pursuant to section 171.255, Davis may be held personally liable for taxes for the second tax period.[10] Since it cannot be determined from the comptroller's claim whether "1986" includes the first, second, or both tax periods, the comptroller's claim is ambiguous and there is a genuine issue of material fact concerning whether, or what portion of, the franchise taxes were due before the corporate privileges were forfeited. See Coker v. Coker, 650 S.W.2d 391, 394-95 (Tex.1983) (summary judgment improper where contract ambiguous because interpretation of instrument becomes fact question).
Rather than rely on the comptroller's claim to establish the date the franchise taxes were due, the State argues that the "Notice of Tax Due" ("notice") attached to its response to Davis' motion for summary judgment establishes as a matter of law that the franchise taxes, penalties, and interest were due after the corporate privileges were forfeited. The comptroller audited the corporation's account for the years 1983-1986 to determine the corporation's franchise tax liability. The comptroller then issued a notice pursuant to section 111.022 of the Tax Code, which provides in pertinent part:
(a) If the comptroller believes that the collection of a tax required to be paid to the state or the amount of a determination is jeopardized by delay, the comptroller shall issue a determination stating the amount and that the tax collection is in jeopardy. The amount determined is due and payable immediately.
Tex.Tax Code Ann. § 111.022 (West 1992) (emphasis added). The notice date is October 8, 1987. Essentially, the State argues that "audit liability" for the franchise taxes was due and payable on October 8, 1987, a date after the corporate privileges were forfeited, and, therefore, Davis is personally liable for the taxes pursuant to section 171.255.
Retrospective Application of Section 111.022
Section 111.022 was added to the Tax Code by amendment, effective July 21, 1987.[11] Act of July 18, 1987, 70th Leg., 2nd C.S., ch. 1, § 7, 1987 Tex.Gen.Laws 1, 4 (Tex.Tax Code Ann. § 111.022). The State seeks to apply section 111.022 to taxes for tax periods before the amendment's effective date.
Texas law militates strongly against the retroactive application of laws. Texas courts apply statutes retroactively only if it appears by fair implication from the language used that it was the legislature's intention to make it applicable to both past and future transactions. See Tex. Const, art. I, § 16; Code Construction Act, Tex.Gov't Code Ann. § 311.022 (West 1988); Ex parte Abell, 613 S.W.2d 255, 258 (Tex.1981); State v. Humble Oil & Ref. *570 Co., 141 Tex. 40, 169 S.W.2d 707, 708-09 (1943); Houston Indep. Sch. Dist. v. Houston Chronicle Publishing Co., 798 S.W.2d 580, 585 (Tex.App.Houston [1st Dist.] 1990, writ denied). We find no words in this statute which indicate a legislative intent that its provisions apply retroactively. Even so, in the absence of an express intention to the contrary, laws merely affecting procedure or remedies may be applied retrospectively. Brooks v. Texas Employers Ins. Ass'n., 358 S.W.2d 412, 414 (Tex.Civ. App.Houston 1962, writ ref'd n.r.e.). Laws may not operate retroactively to deprive or impair vested substantive rights under existing laws. Holder v. Wood, 714 S.W.2d 318, 319 (Tex.1986)
On its face, section 111.022 does not create new tax liability when it otherwise does not exist. The provision implicitly presumes that a jeopardy determination will issue only for a tax that is otherwise "required to be paid to the State." The determination states the amount and the fact that the tax collection is in jeopardy. The comptroller issues the determination because he believes that a delay in the collection of the tax places the tax collection in jeopardy. Accordingly, the amount determined is "due and payable immediately." However, the way in which the State seeks to apply section 111.022 results in a retrospective application that affects substantive rights because it creates director and officer liability under section 171.255 when it otherwise does not exist.
Section 171.255 creates director and officer liability for tax liability imposed by chapter 171 if the taxes become due and payable after corporate privileges are forfeited. Tex.Tax Code Ann. § 171.255 (West 1992). Generally, statutes imposing a corporate franchise tax are liberally construed to effectuate the purpose of their enactment as revenue statutes. Isbell v. Gulf Union Oil Co., 147 Tex. 6, 209 S.W.2d 762, 764 (1948); Wilburn v. State, 824 S.W.2d 755, 760 (Tex.App.Austin 1992, no writ). However, statutes making directors and officers liable for corporate debts must be strictly construed and cannot be extended beyond the clear meaning of their language. Schwab v. Schlumberger, 145 Tex. 379, 198 S.W.2d 79, 81 (1946) interpreting Act approved May 16, 1907, 30th Leg., 1st C.S., ch. 23, § 8, 1906-1907 Tex.Gen.Laws 502, 505 {later codified as Tex.Rev.Civ. Stat.Ann. art. 7091, since repealed, and recodified as Tex.Tax Code Ann. § 171.255 (West 1992)); Wilburn, 824 S.W.2d at 760. Additionally, because section 171.255 is penal in nature, it must be strictly construed to protect those individuals against whom liability is sought. Rogers v. Adler, 696 S.W.2d 674, 677 (Tex.App.Dallas 1985, writ ref'd n.r.e.). The provision is meant to prevent wrongful acts of culpable officers of a corporation and is for the protection of the public and particularly those dealing with the corporation. Schwab, 198 S.W.2d at 81. Director liability cannot be expanded beyond the clear language of section 171.255.
If section 111.022 is applied retroactively so that the franchise taxes are due and payable on October 8, 1987, director and officer liability under section 171.255 would be expanded beyond that which existed before the effective date of section 111.022. For example, if "1986" refers to the regular annual tax period that began on May 1, 1985, then pursuant to section 171.152, the franchise tax due date for that tax period was March 15, 1985. See Act of July 2, 1984, 68th Leg., 2d C.S., ch. 10, art. 3, § 1, 1984 Tex.Gen.Laws 67, 73 (Tex.Tax Code Ann. § 171.152, since amended). Pursuant to section 171.255, Davis would not be liable for that tax, because the due date is before the date the corporate privileges were forfeited on June 24, 1985. Nevertheless, under the State's theory, Davis is personally liable because the notice issued pursuant to section 111.022 establishes that the franchise taxes are due and payable on October 8, 1987, which is after the date the corporate privileges were forfeited. Thus, section 111.022 cannot be retroactively applied to taxes for the tax period beginning May 1, 1985, because to do so affects Davis' substantive rights. However, director and officer liability is not expanded if the notice issued pursuant to section 111.022 is for taxes for the tax period commencing on May 1, 1986, because pursuant *571 to section 171.152, the due date for these taxes is after the date the corporate privileges were forfeited,[12] and, thus, Davis' substantive rights are not affected. Accordingly, we hold that when the franchise tax due date provided for by section 171.152 occurs before the corporate privileges are forfeited, a subsequent jeopardy determination made pursuant to section 111.022 may not be retroactively applied to establish a franchise tax due date that creates director or officer liability pursuant to section 171.255 when it did not otherwise exist.[13] Because the State's summary-judgment proof fails to establish as a matter of law the tax period for which the tax liability is owed, a genuine issue of material fact exists concerning the date the taxes were due. Similarly, the State has not shown as a matter of law that Davis is liable for the claimed penalties because penalty liability is also determined by reference to the franchise tax due date.[14] The State has failed to show that it is entitled to summary judgment against Davis as a matter of law. Accordingly, the trial court erred in granting the State's motion for summary judgment. We sustain appellant's first point of error.
Davis' Motion for Summary Judgment
In his second point of error, Davis asserts that the trial court erred in denying his motion for summary judgment because the undisputed facts show that he is entitled to judgment as a matter of law. When both parties move for summary judgment and one motion is granted and the other is overruled, all questions presented to the trial court may be presented for consideration on appeal, including whether the losing party's motion should have been overruled. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988, orig.proceeding); Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400-01 (1958). Davis' burden as movant is to show as a matter of law that no material issue of fact exists for the State's cause of action. Griffin v. Rowden, 654 S.W.2d 435, 435-36 (Tex. 1983). Davis may accomplish this with summary judgment evidence showing that at least one element of the State's cause of action has been established conclusively against the State. See Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex. 1987); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).
Davis asserts that no proof exists of any franchise taxes becoming due after June 24, 1985. As we have already determined, there is a genuine issue of material fact concerning when the franchise taxes were due. If the use of the term "1986" in the comptroller's claim refers to the tax period that commenced on May 1, 1986, the due date for that tax period is March 15, 1986.
Davis next asserts that an individual officer or director of a corporation can only be held liable for the corporation's franchise taxes becoming due after the date of forfeiture of corporate privileges and before forfeiture of the corporate charter. However, the corporation could have incurred liability for franchise taxes after its corporate charter was forfeited on December 2, 1985, if it continued to do business in Texas after that date. See Tex.Tax Code Ann. § 171.001 (West 1992). Davis submitted no summary-judgment proof that the corporation *572 ceased doing business after its charter was forfeited.
Next, Davis argues that the comptroller's claim names only the corporation as a taxpayer. This is true. However, the comptroller's claim recites that the corporation's officers and directors are liable for the taxes, penalties, and interest. The comptroller's claim names Davis as president of the corporation. Furthermore, Davis' answers to interrogatories establish that he was the president and director of the corporation from 1983 through 1986. Finding no merit to Davis' second point of error, we overrule it.
CONCLUSION
Davis is liable for the corporation's unpaid franchise taxes and penalties only if they became due and payable after the corporate privileges were forfeited. There is a genuine issue of material fact concerning when the franchise taxes were due. Thus, the State has failed to show that it is entitled to summary judgment against Davis as a matter of law. The trial court, therefore, erred in granting the State's motion for summary judgment. Accordingly, the portion of the trial-court judgment that awards the State recovery against James W. Davis is reversed and that portion of the cause is remanded to the trial court.
NOTES
[1] Tex.Tax Code Ann. § 111.010(a) (West 1992) (attorney general shall bring suit in name of State to recover delinquent state taxes).
[2] A franchise tax is imposed on each corporation that does business in this State or that is chartered or authorized to do business in this State. Tex.Tax Code Ann. § 171.001 (West 1992).
[3] Because the corporation did not appeal from the trial court's judgment, the judgment against the corporation is final.
[4] All references to code provisions are to the provision in effect at times relevant to this cause, unless otherwise indicated.
[5] The comptroller's claim is prima facie evidence of its contents. See Act of May 31, 1981, 67th Leg., R.S., ch. 389, § 1, 1981 Tex.Gen. Laws 1490, 1504 (Tex.Tax Code § 111.013, since amended). The provision recites: "In a suit involving the establishment or collection of an occupation tax, a claim showing the amount of tax due the state and certified by the comptroller or the chief clerk of the comptroller is admissible as evidence. When admitted, the claim is prima facie evidence of its contents." (emphasis added). For purposes of this provision, the franchise tax is an occupation tax. See Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, 899 (1937) (considering statute as a whole, if primary purpose of fees provided therein is raising of revenue, such fees are occupation taxes, regardless of how designated); Ross Amigos Oil Co. v. State, 134 Tex. 626, 138 S.W.2d 798, 800 (1940); Wilbum v. State, 824 S.W.2d 755, 761 (Tex. App.Austin 1992, no writ) (sole purpose of franchise-tax statute is to raise revenue).
[6] Davis' answers to interrogatories establish that he was the corporation's president, director, and sole shareholder from 1983 through 1986.
[7] See Act of May 31, 1981, 67th Leg., R.S., ch. 389, § 1, 1981 Tex.Gen.Laws 1490, 1699, amended by Act of Apr. 2, 1985, 69th Leg., R.S., ch. 31, § 5, 1985 Tex.Gen.Laws 405, 406 (Tex.Tax Code Ann. § 171.151, since amended). Section 171.151 provides, in pertinent part, "The franchise tax shall be paid for each of the following: ... (3) after the initial and second periods have expired, a regular annual period beginning each year on May 1 and ending on the following April 30." Both of the tax periods that are included in 1986 are after the corporation's "initial" and "second" period.
[8] Act of July 2, 1984, 68th Leg., 2nd C.S., ch. 10, art. 3, § 1, 1984 Tex.Gen.Laws 67, 73 (Tex.Tax Code Ann. § 171.152, since amended) (payment of tax covering regular annual period is due March 15th of each year before beginning of regular annual period).
[9] Act of Apr. 2, 1985, 69th Leg., R.S., ch. 31, § 7, 1985 Tex.Gen.Laws 405, 406 (Tex.Tax Code Ann. § 171.152, since amended).
[10] This would be true even though the corporate charter had been forfeited if the corporation continued to conduct business in the corporate name after that date. See Tex.Tax Code Ann. § 171.001(a) (West 1992).
[11] The Act repealed an essentially identical jeopardy-determination provision found in section 151.506 relating to sales, excise, and use taxes. Act of July 18, 1987, 70th Leg., 2d C.S., ch. 1, § 8, 1987 Tex.Gen.Laws 1, 4. The legislature is presumed never to do a useless act. See Tex. Gov't Code Ann. § 311.021 (West 1988); Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex.1981). Therefore, there is a purpose in making the jeopardy-determination provision part of chapter 111. Chapter 111 provides for collection procedures for all taxes imposed by title 2. We believe section 111.022 expands the comptroller's duty to issue a jeopardy determination, and the taxpayers' obligation to immediately pay taxes for which a determination issues, to all taxes imposed by title 2.
[12] Act of Apr. 2, 1985, 69th Leg., R.S., ch. 31, § 7, 1985 Tex.Gen.Laws 405, 406 (Tex.Tax Code Ann. § 171.152, since amended) (March 15, 1986, is due date).
[13] The State argues that it will rarely if ever be able to collect franchise taxes determined to be due pursuant to an audit. This is not the case. Our holding does not affect the corporation's liability for the franchise taxes. Nor does it prevent the State from holding Davis personally liable for the franchise taxes pursuant to other pleaded theories of liability.
[14] Section 171.362 specifies the penalties to be imposed for nonpayment of franchise taxes. Section 171.362 provides:
(a) If a corporation on which a tax is imposed by this chapter fails to pay the tax when it is due and payable or fails to file a report required by this chapter when it is due, the corporation is liable for a penalty of five percent of the amount of the tax due.
(b) If the tax is not paid or the report is not filed within 30 days after the due date, a penalty of an additional five percent of the tax due is imposed.
Tex.Tax Code Ann. § 171.362(a), (b) (West 1992).
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396 Pa. 389 (1959)
Lakeside Park Co., Appellant,
v.
Forsmark.
Supreme Court of Pennsylvania.
Argued May 1, 1959.
July 2, 1959.
*390 Before JONES, C.J., BELL, MUSMANNO, JONES, COHEN, BOK and McBRIDE, JJ.
E.V. Buckley, with him L.R. Rickard, for appellant.
Martin E. Cusick, with him Donald R. McKay, and Wiesen, Cusick, Madden, Joyce, Acker and McKay, for appellee.
OPINION BY MR. JUSTICE BOK, July 2, 1959:
The single question is whether or not Sandy Lake, in Mercer County, is navigable. The court below held that it was. We think this was error.
What depends is that defendant wants to make commercial use of his shore-front property, which he may do if the lake is navigable and public, but which he may not do if it is non-navigable and private.
The lake is 27th in size among the State's 254. It is 5070 feet long and 1930 feet at its widest point. It has *391 a prevailing depth of 25 feet and a maximum of 40 to 50 feet, and has no well defined outlet. It is fed by springs and covers 149.7 acres. It is described in the Commonwealth's Water Resources Inventory Report, published in 1917, which contains these items, among others: "Utilization ice harvesting, summer resort, and water supply for a magnesia manufacturing plant. Navigation motor boats and rowboats. Ownership private and corporate: not limited to shore line."
Such commercial glory as the lake had occurred between 1890 and 1920, but mainly around the turn of the century. Railhead on both north and south sides brought many excursionists, and a steamer and barge made irregular trips across the lake. There was a dock, a pier, a ticket office, a hotel and some organized amusement. People came to swim, fish, boat, and drink. Finally, the crowd so increased that the steamer was unable to handle them and the railroad ran its tracks around the lake, which solved the problem.
The present use of the lake by the plaintiff, which owns most of the bed, is the operation of summer cottages and facilities for bathing, fishing, and boating on its own property. Sporadic fishing in boats hired from others is objected to.
Defendant's whole case for navigability depends on these past uses, now forty to sixty-five years agone. His argument is that the lake is susceptible of navigation in fact and hence that it is navigable in law. This is good law for rivers but must be accepted with caution for lakes.
The State's rule for rivers is well stated in Cleveland & Pittsburgh Railroad Co. v. Pittsburgh Coal Co., 317 Pa. 395, 176 A. 7 (1935), as follows: "`Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being *392 used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water': The Daniel Ball, 10 Wall. 557, 563; The Montello, 20 Wall. 430, 439; U.S. v. Holt State Bank, 270 U.S. 49; U.S. v. Utah, 283 U.S. 64; Flanagan v. Philadelphia, 42 Pa. 219."
The difference in modes of trade and travel upon a long thin roadway of water joining regions and communities, which a river is, and upon a small lake, is obvious. Commerce may exist on both and it may move on both, but such movement on a 150-acre lake, unless it is an adequate link in a chain of commercial intercourse, remains local and insignificant in comparison with the argosies of transport that move along the great rivers of the Commonwealth.
Defendant tries to make a commercial highway of Sandy Lake, out of the long-vanished steamer, with its two-foot draft and its capacity of thirty-five persons, that hurried back and forth across the mile of water, or its barge that might hold a hundred people for dancing. This falls far short of qualifying as a highway for commerce or a link of a chain, within the reasonable intendment of that phrase. People came to stay and enjoy the lake as an end in itself, not as an incident in a journey along a trade-route.
There is a definite body of lake law in Pennsylvania. It consists, with one exception to be mentioned later, of thirteen cases involving eight lakes of generally comparable size with Sandy Lake, some smaller and some a bit larger. They follow:
1. Baylor Lake, in Lackawanna County, 4000 feet long and 1600 feet wide and containing 125 acres, has been before this court four times: Reynolds v. Commonwealth, 93 Pa. 458 (1880); Baylor v. Decker, 133 Pa. 168, 19 A. 351 (1890); Loughran v. Matylewicz, 367 *393 Pa. 593, 81 A.2d 879 (1951); and Shaffer v. Baylor's Lake Association, 392 Pa. 493, 141 A.2d 583 (1958). It has been used commercially for fishing, boating, ice harvesting, winter skating, sleighing, watering cattle, and logging.
2. Naomi Lake, in Monroe County, is a mile long and a third of a mile wide, and covers 210 acres. It has been here three times: Miller v. Lutheran Association, 331 Pa. 241, 200 A. 646 (1938); Miller v. Miller, 331 Pa. 252, 200 A. 652 (1938); and Miller v. Miller, 118 Pa. Super. 38, 179 A. 248 (1935). Its commercial uses include bathing, boating, and fishing.
3. Lily Pond (Long or Beach Pond), in Luzerne County, is a mile long by half a mile wide, and consists of approximately 250 acres. It was here in Smoulter v. Boyd, 209 Pa. 146, 58 A. 144 (1904), and its uses were boat hire, vacationing, fishing, and lily gathering. Its owner owned the bed under its waters.
4. Echo Lake, in Monroe County, is a small lake half a mile long by a sixth wide, and covering 40 acres. It was used for boating, bathing, and fishing, and was in litigation in Shinn v. Rosenberger, 347 Pa. 504, 32 A.2d 747 (1943).
5. Bassett Pond, in Lackawanna County covers 50 acres and has been used for fishing. It appears in Gibbs v. Sweet, 20 Pa. Super. 275 (1902), and it provided water power for its owner's mill.
6. Lily Lake (Wall Pond) in Lackawanna County, covers 84 acres and was used commercially for ice harvesting and fishing. It is the subject of Fuller v. Cole, 33 Pa. Super. 563 (1907).
7. Sawkill Pond, in Pike County, covers 80 acres, was used for boating, and had a dock for row boats and a raft for swimming. It is discussed in Cryer v. Sawkill Camp, 88 Pa. Super. 71 (1926), and was called "commercially non-navigable."
*394 8. Finally, Lake Quinsigmond, or Bronson's Pond, in Wayne County, covers 150 to 200 acres and has been used since 1905 for fishing, boating, swimming, and cutting ice: later it became a reservoir. It appears at Matthews v. Bagnik, 157 Pa. Super. 115, 41 A.2d 875 (1945).
In all of these cases the lakes were called "non-navigable" or "unnavigable and private". The point of decision was not their non-navigability, which was assumed as a fact in each case. The significant thing is that the lakes were accepted as non-navigable despite the commercial uses to which they were put.
The remaining and exceptional case, relied on by appellee and by the court below, is Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, 74 A. 648 (1909). This lake, three and a half miles long, a mile wide, an average 50 feet deep, and covering 1500 acres, is ten times the size of Sandy Lake and one of the State's largest lakes. What makes it sui generis is that by the Act of March 21, 1798, 3 Sm. L. 320, it was declared public water and became part of the State's canal system. We held it navigable in fact and hence in law, as well as navigable by Act of Assembly. But then we added: "When a lake is so small as to be properly regarded as a mere pond, there is no sufficient reason for the public to assert any right in it. But that is not the case here."
What is a mere pond is nowhere decided except by the accretion of cases concerning the foregoing eight lakes. And there are other considerations.
Navigation and navigability are portentous words. They mean more than the flotation of buoyant vessels in water: if it were otherwise, any tarn capable of floating a canoe for which a charge could be made would make the water navigable. They mean more than some commercial use to which collected water is put: *395 if this were not so, every spring-fed pool capable of being bottled and sold for drinking water would be navigable. No single factor can control.
We can take judicial notice that there are four great areas in or touching the United States where navigation is thoroughly regulated, each by a set of laws and rules applicable to it alone: the high seas, those inland waters that connect with the high seas, the Great Lakes, and the Western Rivers. These laws and regulations cover the range of practical navigation: lights, fog and passing signals, rules of the road, safety equipment, buoyage, and pilotage. Navigation is a serious science whose proper exercise is in the public interest and for the public safety.
Property rights are also involved in the issue. In Conneaut we held: "Where a meandered lake is non-navigable in fact, the patentee of the land bordering on it takes to the middle of the lake; but where the lake is navigable in fact, its bed and waters belong to the state in its sovereign capacity, and the riparian patentee takes the fee only to the water's edge." Also Cryer v. Sawhill Camp, supra (88 Pa. Super. 71).
This is the rule of the rivers, except that low water mark is substituted for the water's edge: see Johns v. Davidson, 16 Pa. 512 (1851); Flanagan v. Philadelphia, 42 Pa. 219 (1862); Monongahela Bridge Co. v. Kirk, 46 Pa. 112 (1863); Wood v. Appal, 63 Pa. 210 (1870); Leaf v. Pennsylvania Co., 268 Pa. 579, 112 A. 243 (1920).
It follows that where the owner of private lake-shore holds title to the middle, or ad medium filum aquae, or to a greater or lesser extent depending on his deed, his land can be trespassed upon as if the water were not there: Smoulter v. Boyd, supra (209 Pa. 146); Matthews v. Bagnik, supra (157 Pa. Super. 115). *396 And his bathing and fishing rights are valuable and can be assigned: Miller v. Miller, supra (118 Pa. Super. 38).
We should not be cavalier with such rights, which may be long settled. It is a temptation to look to other states for their solution, as we did when Conneaut was written, but there is now a discernible policy in Pennsylvania. That of a state with ten thousand lakes may be different from ours with only 254, especially if the foreign state lately entered the Union with a state-wide application of its eminent domain. It is less for us than for the Legislature to create another policy if it should seem desirable.
We think that the concept of navigability should not be limited alone by lake or river, or by commercial use, or by the size of water or its capacity to float a boat. Rather it should depend upon whether water is used or usable as a broad highroad for commerce and the transport in quantity of goods and people, which is the rule naturally applicable to rivers and to large lakes, or whether with all of the mentioned factors counted in the water remains a local focus of attraction, which is the rule sensibly applicable to shallow streams and to small lakes and ponds. The basic difference is that between a trade-route and a point of interest. The first is a public use and the second private.
We are of opinion that Sandy Lake is a small lake or pond and is not navigable. As we said in Conneaut: "The use to which the body of water may be put is the true criterion. If the body of water is sufficiently large and deep to serve the public in providing transportation to any considerable extent upon its bosom, it is sufficient to give the public an easement therein, for the purpose of transportation and commercial intercourse." That is not the case before us.
*397 The decree is reversed. The record is remanded to the court below for the entry of a proper order consistent with this opinion. Costs to be paid by appellant.
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425 F. Supp. 1355 (1977)
Hamp Grace, Petitioner,
v.
Joseph HOPPER, Warden, Georgia State Prison, Reidsville, Georgia, Respondent.
Civ. A. No. 2954-Mac.
United States District Court, M. D. Georgia, Macon Division.
February 2, 1977.
Hamp Grace, pro se.
Arthur K. Bolton, Atty. Gen., David L. G. King, Jr., Asst. Atty. Gen., State of Georgia, Atlanta, Ga., for respondent.
*1356 OWENS, District Judge:
While the Supreme Court of the United States in 1895 in Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499, decided that in federal criminal trials the prosecution is required to prove every essential element of the crime charged including the mental capacity of the defendant, beyond a reasonable doubt, saying:
We are unable to assent to the doctrine that in a prosecution for murder, the defence being insanity, and the fact of the killing with a deadly weapon being clearly established, it is the duty of the jury to convict where the evidence is equally balanced on the issue as to the sanity of the accused at the time of the killing. On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.
No one, we assume, would wish either the courts or juries when trying a case of murder to disregard the humane principle, existing at common law and recognized in all the cases tending to support the charge of the court below, that, "to make a complete crime cognizable by human laws, there must be both a will and an act;" and "as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will." 4 Bl.Com. 21. All this is implied in the accepted definition of murder; for it is of the very essence of that heinous crime that it be committed by a person of "sound memory and discretion," and with "malice aforethought," either express or implied. 4 Bl.Com. 195: 3 Co.Inst. 47; 2 Chitty's Cr.Law, 476. Such was the view of the court below which took care of its charge to say that the crime of murder could only be committed by a sane being, although it instructed the jury that a reasonable doubt as to the sanity of the accused would not alone protect him against a verdict of guilty.
One who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have "a wicked, depraved, and malignant heart," or a heart "regardless of social duty and fatally bent on mischief," unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act. Although the killing of one human being by another human being with a deadly weapon is presumed to be malicious until the contrary appears, yet, "in order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience, or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts." Com. v. Rogers, 7 Met. (Mass.) 500 [41 Am.Dec. 458]. Neither in the adjudged cases nor in the elementary treatises upon criminal law is there to be found any dissent from these general propositions. All admit that the crime of murder necessarily involves the possession by the accused of such mental capacity as will render him criminally responsible for his acts. (emphasis added).
Upon whom then must rest the burden of proving that the accused, whose life it is sought to take under the forms of law, belongs to a class capable of committing crime? On principle, it must rest upon those who affirm that he has committed the crime for which he is indicted. That burden is not fully discharged, nor is there any legal right to take the life of the accused, until guilt is made to appear from all the evidence in the case. The plea of not guilty is unlike a special plea in a civil action, which, admitting the case averred, seeks to establish substantive ground of defence by a preponderance of evidence. It is not in confession *1357 and avoidance, for it is a plea that controverts the existence of every fact essential to constitute the crime charged. Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proved, if the jury entertain a reasonable doubt from all the evidence whether he was legally capable of committing crime.
This view is not at all inconsistent with the presumption which the law, justified by the general experience of mankind as well as by considerations of public safety, indulges in favor of sanity. If that presumption were not indulged the government would always be under the necessity of adducing affirmative evidence of the sanity of an accused. But a requirement of that character would seriously delay and embarrass the enforcement of the laws against crime, and in most cases be unnecessary. Consequently the law presumes that every one charged with crime is sane, and thus supplies in the first instance the required proof of capacity to commit crime. It authorizes the jury to assume at the outset that the accused is criminally responsible for his acts. But that is not a conclusive presumption, which the law upon grounds of public policy forbids to be overthrown or impaired by opposing proof. It is a disputable or, as it is often designated, a rebuttable presumption resulting from the connection ordinarily existing between certain facts such connection not being "so intimate, nor so nearly universal, as to render it expedient that it should be absolutely and imperatively presumed to exist in every case, all evidence to the contrary being rejected; but yet it is so general, and so nearly universal, that the law itself, without the aid of a jury, infers the one fact from the proved existence of the other, in the absence of all opposing evidence." 1 Greenl.Ev. § 38. It is therefore a presumption that is liable to be overcome or to be so far impaired in a particular case that it cannot be safely or properly made the basis of action in that case, especially if the inquiry involves human life. In a certain sense it may be true that where the defence is insanity, and where the case made by the prosecution discloses nothing whatever in excuse or extenuation of the crime charged, the accused is bound to produce some evidence that will impair or weaken the force of the legal presumption in favor of sanity. But to hold that such presumption must absolutely control the jury until it is overthrown or impaired by evidence sufficient to establish the fact of insanity beyond all reasonable doubt or to the reasonable satisfaction of the jury, is in effect to require him to establish his innocence, by proving that he is not guilty of the crime charged. (emphasis added).
* * * * * *
Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defence is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question from the time a plea of not guilty is entered until the return of the verdict, is whether upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt. If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offence charged. His guilt cannot be said to have been proved beyond a reasonable doubt his will and his acts cannot be held to have joined in and perpetrating the murder charged if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing crime, or (which is the same thing) *1358 whether he wilfully, deliberately, unlawfully, and of malice aforethought took the life of the deceased. As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts. How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?
* * * * * *
It seems to us that undue stress is placed in some of the cases upon the fact that, in prosecutions for murder the defence of insanity is frequently resorted to and is sustained by the evidence of ingenious experts whose theories are difficult to be met and overcome. Thus, it is said, crimes of the most atrocious character often go unpunished, and the public safety is endangered. But the possibility of such results must always attend any system devised to ascertain and punish crime, and ought not to induce the courts to depart from principles fundamental in criminal law, and the recognition and enforcement of which are demanded by every consideration of humanity and justice. No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.
and while it refused Justices Frankfurter and Black dissenting in 1952 in Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302, to hold that the due process clause of the Fourteenth Amendment requires the states of these United States to prove every essential element of the crime charged, including the mental capacity of the defendant, beyond a reasonable doubt, it proceeded just eighteen years later after discussing the court's previous cases reviewing federal and state criminal convictions and using language strikingly similar to the dissents in Leland to unequivocally answer the question of whether or not due process requires proof beyond a reasonable doubt as follows:
[7] Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375. So it is that while proof beyond a reasonable doubt had dated "at least from our early years as a Nation," Id. at 360, 373, 90 S.Ct. at 1071, it was for the first time in 1970 explicitly determined by the Supreme Court to be a constitutional requirement.
In re Winship was amplified and further explained in the Supreme Court's June 9, 1975, decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508.
The question before the Supreme Court was whether or not the "State of [Maine's] require[ment that] a defendant charged with murder prove that he acted `in the heat of passion on sudden provocation' in order to reduce the homicide to manslaughter. . . . comports with the due process requirement, as defined in In re Winship . . .." "Id. at 685, 95 S.Ct. at 1882, 44 L.Ed.2d at 511.
The court after reviewing the decisions below in the courts of the State of Maine, the United States District Court for Maine and the United States Court of Appeals for the First Circuit in which there were sharp differences of opinion as to whether or not murder and manslaughter were separate offenses under the law of Maine, first reminded *1359 that "this Court, however, repeatedly has held that state courts are the ultimate expositors of state law . . . and that we are bound by their constructions except in extreme circumstances not present here. . . .", secondly "accept[ed] as binding the Maine Supreme Judicial Court's construction of state homicide law. . . ."; and then summarized Maine's law as construed by its highest court as follows:
Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder i.e., by life imprisonment unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. Id. at 691, 95 S.Ct. at 1886, 44 L.Ed.2d at 515.
After reviewing the historical development at common law and in this country of the elements of murder and manslaughter and after specifically pointing out that the Supreme Court in 1895 in Davis v. United States, supra, a review of a lower federal court case, had already unanimously rejected the concept of malice which requires a defendant to negate malice aforethought by proving by a preponderance of the evidence that he acted in the heat of passion so as to cause him to be convicted of manslaughter rather than murder, Id. at 695, 95 S.Ct. at 1888, 44 L.Ed.2d at 517; the court stated (1) that almost from the inception of the law of homicide the presence or absence of heat of passion on sudden provocation has been "the single most important factor in determining the degree of culpability attaching to an unlawful homicide" and (2) "the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact." Id. at 696, 95 S.Ct. at 1888, 44 L.Ed.2d at 517.
The court discussed and rejected the state's argument that In re Winship should be applied only to those facts which, if not proved, would wholly exonerate the defendant and further argument that heat of passion on sudden provocation is not a fact necessary to constitute the crime of murder in Maine. It went on to state:
Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Because the former are less "blameworth[y]," State v. Lafferty, [Me.,] 309 A.2d, [647] at 671, 673 (concurring opinion), they are subject to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Winship. Id. 421 U.S. at 697, 95 S.Ct. at 1889, 44 L.Ed.2d at 519.
The Supreme Court of Georgia in refusing to apply In re Winship and Mullaney v. Wilbur to petitioner Grace's case stated:
These United States Supreme Court cases persuade us that in order to comport with due process the prosecution must carry the burden of proving all critical essential elements of the crime charged against a defendant. However, sanity has not been treated as a critical essential element of the offense which the prosecution is required to prove beyond a reasonable doubt. Grace v. Hopper, 234 Ga. 669, 671, 217 S.E.2d 267, 269.
The Supreme Court of Georgia also thought it significant that Leland v. Oregon was not specifically overruled in In re Winship or Mullaney v. Wilbur and that Mr. Justice Rehnquist joined by Chief Justice Burger stated that they saw no inconsistency between the court's unanimous holding and Leland v. Oregon. This court notes that the possible inconsistency was not an issue in the case and further notes footnote 31 to the court's unanimous opinion which states:
31. This conclusion is supported by consideration of a related line of cases. Generally in a criminal case the prosecution bears both the production burden and the *1360 persuasion burden. In some instances, however, it is aided by a presumption, see Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895) (presumption of sanity), or a permissible inference, see United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965) (inference of knowledge from presence at an illegal still). These procedural devices require (in the case of a presumption) or permit (in the case of an inference) the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed or inferred fact by having satisfactorily established other facts. Thus, in effect they require the defendant to present some evidence contesting the otherwise presumed or inferred fact. See Barnes v. United States, 412 U.S. 837, 846 n.11, 93 S. Ct. 2357, 2363, 37 L. Ed. 2d 380 (1973). Since they shift the production burden to the defendant, these devices must satisfy certain due process requirements. See e.g., Barnes v. United States, supra; Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970).
In each of these cases, however, the ultimate burden of persuasion by proof beyond a reasonable doubt remained on the prosecution. See, e.g., Barnes v. United States, supra, [412 U.S.] at 845 n.9, 93 S.Ct. [2357] at 2362, 37 L. Ed. 2d 380; Davis v. United States, supra, [160 U.S.] at 484-488, 16 S.Ct. [353] at 356-358, 40 L. Ed. 499. Shifting the burden of persuasion to the defendant obviously places an even greater strain upon him since he no longer need only present some evidence with respect to the fact at issue; he must affirmatively establish that fact. Accordingly, the Due Process Clause demands more exacting standards before the State may require a defendant to bear this ultimate burden of persuasion. See generally Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 78 Yale L.J. 165 (1969).
Under Georgia law as construed heretofore by the Supreme Court of Georgia in its said denial of petitioner's writ of habeas corpus, sanity is not an element that must be proved by the State to establish the crime of murder because as the trial court charged petitioner's jury "under the law of this state every person is presumed to be of sound mind and discretion . . .", and ". . . the acts of a person of sound mind and discretion are presumed to be the product of that person's will. . . ." Transcript at 111. Nevertheless the absence of a sound mind and discretion[1] the same as being under 13 years of age, involuntarily intoxicated or laboring under a misapprehension of fact, Ga.Code Ann. §§ 26-701, 704 and 705, eliminates all responsibility under the laws of Georgia for murder as well as all other crimes.
Under the law of Maine the evidence as to which the burden of proof was placed upon a defendant, had the effect of reducing the crime charged from that of murder to that of manslaughter thereby diminishing the maximum possible punishment from life imprisonment to imprisonment for 20 years. Under the law of Georgia evidence of legal irresponsibility on account of lack of mental capacity herein and elsewhere commonly called insanity as to which the burden of proof was placed upon petitioner Grace, has the much greater effect of not just reducing the crime of murder and its then possible punishment of life imprisonment to some lesser crime and punishment but of completely eliminating all criminal *1361 charges and all possible criminal punishment for the act in question.
To paraphrase the Supreme Court's concluding paragraph in Mullaney, Georgia law requires a defendant to establish to the reasonable satisfaction of the jury that he lacked mental capacity and therefore cannot be found guilty of murder or any other crime. Under this burden a defendant at the time of petitioner's alleged crime could be given a life sentence now[2] could receive capital punishment in the courts of this state when the evidence indicates it is as likely as not that he deserves to be found to be not criminally responsible on account of lack of mental capacity to commit any crime.
This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. In re Winship, 397 U.S. at 372, 90 S.Ct. [1068] at 1076, 25 L. Ed. 2d 368 (concurring opinion). Mullaney, supra, 421 U.S. at 703, 95 S.Ct. at 1892, 44 L.Ed.2d at 522.
It is therefore this court's opinion that the Due Process Clause as interpreted and applied by the Supreme Court of the United States requires the prosecution in the courts of the State of Georgia when there is some evidence contesting the mental capacity of the defendant to be convicted of the crime of murder or any other crime, to prove beyond a reasonable doubt that the defendant has the mental capacity required by Georgia law to be convicted of murder or any other crime.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that petitioner's conviction be set aside and that petitioner within ninety (90) days after this order becomes final as a result of the failure of respondent to lodge an appeal or as the result of the issuance of a mandate affirming this decision, whichever is later, be reindicted and constitutionally tried failing which this writ of habeas corpus without further order shall be made absolute and petitioner shall be released from custody.
NOTES
[1] Ga.Code Ann. § 26-702 provides:
A person shall not be found guilty of a crime, if at the time of the act, omission, or negligence constituting the crime, such person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.
Ga.Code Ann. § 26-703 provides: A person shall not be found guilty of a crime when at the time of the act, omission, or negligence constituting the crime, such person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.
[2] Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
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425 F. Supp. 1330 (1977)
UNITED STATES of America, Plaintiff,
v.
Trent L. CHAMBLIS, Defendant.
Crim. No. 75-82073.
United States District Court, E. D. Michigan, S. D.
January 27, 1977.
*1331 Victoria L. Toensing, Asst. U.S. Atty., Detroit, Mich., for plaintiff.
Gershwin A. Drain, Detroit, Mich., for defendant.
MEMORANDUM OPINION
CHURCHILL, District Judge.
This matter is before the Court on the defendant's motion to suppress evidence filed pursuant to Rule 41(f) of the Federal Rules of Criminal Procedure. The defendant, Trent L. Chamblis, has been charged with possession of approximately 28.82 grams of heroin in violation of 21 U.S.C. § 841(a)(1). An evidentiary hearing established the relevant facts.[1]
*1332 On December 8, 1975, at about 4:30 P.M. at Detroit Metropolitan Airport, Special Agent Harold Wankel of the Drug Enforcement Administration was in the waiting area for American Airlines arrivals. He observed people disembarking from a nonstop flight from Los Angeles. About 15 people had disembarked when Agent Wankel observed the defendant, a young male, disembarking. The defendant appeared to the agent to be nervous he was constantly looking around, and his movements were hurried. The agent had never seen the defendant before. The defendant proceeded to a phone booth and appeared to make a call. He then proceeded out of the airport in a hurried manner. The defendant claimed no baggage, but he was carrying a garment bag. The agent observed two or three hangers protruding from the garment bag. Special Agent Wankel, joined by Special Agent Jesse Back, followed the defendant. The defendant went outside at the upper level of the terminal and stood. There is no access to public transportation at the upper level.
Special Agent Wankel approached the defendant, identified himself, and asked the defendant for identification. The defendant produced a check stub and a Chrysler employee identification card. Special Agent Wankel asked to see his airline ticket, and the defendant stated that he had lost it. Special Agent Wankel then "requested" that the defendant accompany him downstairs to an office in order to further check on the defendant's identification, and the defendant indicated that he would accompany the agents. As they started downstairs, the defendant started to run. The agents gave chase, and they were joined by Special Agent Markonni and two Wayne County Deputy Sheriffs. As the defendant ran, Special Agents Wankel and Markonni saw the defendant throw something into the street. Special Agents Wankel and Back captured the defendant. Special Agent Markonni retrieved the object thrown by the defendant from a bystander, and it appeared to be heroin. The defendant was taken to the DEA office at the airport. A field test was performed on the substance, and it was found to be heroin. The defendant was then advised of his rights and searched. More suspected heroin was found.
When the defendant was initially stopped by Special Agent Wankel, his freedom of movement was restrained, and he was "seized" within the meaning of the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975). The fact that the initial detention was brief and fell short of an arrest does not make the Fourth Amendment inapplicable. It does, however, affect the standard to be applied in determining the propriety of the police conduct. Limited investigative stops can be based on facts that do not amount to probable cause for arrest. United States v. Harflinger, 436 F.2d 928 (CA8 1970), cert. denied 402 U.S. 973, 91 S. Ct. 1660, 29 L. Ed. 2d 137 (1971). Such stops must, however, be based on facts that amount to a reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Harflinger, supra. A number of judges in this district have stated that an agent can make an investigatory stop if he has a reasonable suspicion that a party disembarking from a plane is carrying a controlled substance. United States v. Mendenhall, No. 6-80208 (E.D. Mich., November 18, 1976); United States v. Grayson, No. 76-80580 (E.D.Mich., November 9, 1976); United States v. Allen, 421 F. Supp. 1372 (E.D.Mich.1976); United States v. Floyd, 418 F. Supp. 724 (E.D.Mich. 1976); United States v. Rogers, No. 6-80162 (E.D.Mich., July 15, 1976); United States v. Van Lewis, 409 F. Supp. 535 (E.D.Mich. 1976). The first issue before this Court is whether the initial stop of the defendant was based on a reasonable suspicion that the defendant was carrying a controlled substance.
Special Agent Wankel stated that the initial stop was based on the following factors: (1) The flight was from Los Angeles, a major drug supply center; (2) the defendant appeared to be nervous; (3) he *1333 made a phone call; (4) he had little luggage; (5) he exited at the upper level, where there was no access to public transportation; and (6) the fact that no one appeared to be there to pick him up. The agent testified that he was using a drug courier profile that has been developed by the Drug Enforcement Administration. The profile consists of a number of factors that the agents who work at the airport have found to be common to drug couriers. The profile is discussed in detail in United States v. Van Lewis, supra. Special Agent Wankel testified that the defendant did meet the drug courier profile.
Judge Joiner held in Van Lewis that meeting the profile gives rise to a reasonable suspicion, which permits limited interrogation and identification stops. 409 F.Supp. at 544. Judge Keith in United States v. Floyd, supra, took a much more critical view of the use of the profile in making investigatory stops. 418 F.Supp. at 728. This Court is of the view that the fact that a suspect meets a number of factors present in the profile is not dispositive of the issue of the propriety of an investigative stop.
One problem with determining the propriety of the stop solely on the basis of whether or not the defendant met the profile is that the factors present in the profile seem to vary from case to case. Special Agent Wankel himself testified that the profile in a particular case consists of anything that arouses his suspicions. A look at the profile cases themselves tends to show that the factors present in the profile tend to change. For instance, in United States v. Mendenhall, supra, a special agent of the Drug Enforcement Administration testified that drug couriers deplane last in order to obtain a clear view of the area inside the terminal. No mention was made of this factor in the present case, possibly because the defendant was one of the first persons off the plane. Another problem with analyzing solely in terms of whether the suspect met the profile is that it tends to negate the need for ascertaining the number of incriminating factors and the degree to which each of them is in fact incriminating. There are profile cases in which a suspect might at least arguably meet the profile where there is no reasonable suspicion. United States v. Grayson, supra. There are other profile cases in which the government can point to ample indicia of reasonable suspicion. United States v. Allen, supra. The existence of a drug courier profile is not a talisman that obviates the need for traditional analysis. This case must be analyzed in terms of the law that has developed in the area of investigative stops.
The agent must "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880. The agent in this case articulated a number of specific facts, and they each tended to inculpate the defendant. The defendant makes much of the fact that his behavior was of an innocent character. The test, however, is not whether the conduct was consistent with innocent behavior, but rather whether it was reasonable for the agent, given all the circumstances, to suspect that the defendant was carrying a controlled substance. United States v. Holland, 510 F.2d 453, 455 (CA9 1973), cert. denied 422 U.S. 1010, 95 S. Ct. 2634, 45 L. Ed. 2d 674 (1975). In determining the reasonableness of the agent's actions, the Court can consider his experience and training. United States v. Brignoni-Ponce, supra, 422 U.S. at 885, 95 S. Ct. 2574; Terry v. Ohio, supra, 392 U.S. at 30, 88 S. Ct. 1868. It is undisputed that Special Agent Wankel was an experienced agent and that much of his experience was garnered at the airport in identifying and stopping potential drug couriers. The Court can also consider the seriousness of the problem the agents are attempting to deal with in determining the reasonableness of the conduct. United States v. Brignoni-Ponce, 422 U.S. at 878-79, 95 S. Ct. 2574. There can be no question but that traffic in illicit drugs is a serious problem in this community. Finally, the Court can consider the nature of the intrusion *1334 itself. United States v. Brignoni-Ponce, 422 U.S. at 880, 95 S. Ct. 2574; Terry v. Ohio, 392 U.S. at 24, 88 S. Ct. 1868. It is significant that here the initial stop consisted of just that a stop and did not encompass a pat-down search. Weighing all of these factors, it is the Court's judgment that the agent did act properly in making the initial stop.[2]
The crucial issue is whether the agent acted properly in continuing the detention by "requesting" that the defendant accompany him downstairs to an office. At that point in time the agent did not have probable cause to believe that the defendant was carrying contraband. The government acknowledges that there was no probable cause when the defendant was initially stopped. Between the time he was initially stopped and the time he was "requested" to accompany the agent to the room, the only information obtained by the agent was that the defendant did have some identification and claimed to have lost his airline ticket. These additional facts were not enough to establish probable cause.[3] On the other hand, the agents did have probable cause when they apprehended the defendant after he fled. Flight and furtive actions provided ample indicia of probable cause. Sibron v. New York, 392 U.S. 40, 66, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).
The judges of this district are not in agreement as to whether an agent must have probable cause before he can take a person from the public area of an airport to a private office. Judge Joiner in Van Lewis held that probable cause is not needed. 409 F.Supp. at 545. Judge Freeman held that it is. United States v. Pruss, No. 5-81244 (E.D.Mich., January 14, 1976), affirmed by order, 542 F.2d 1177 (CA6 1976). Both Judge Joiner and Judge Freeman analyzed the problem in terms of whether the taking of the person to a private office changes the character of the detention from a stop into an arrest.
The Supreme Court, without trying to draw a line between a stop and an arrest, has indicated that a valid stop can become illegal if its scope is unreasonably extended. The Supreme Court in Terry stated that an investigative stop must be "reasonably related in scope to the justification for (its) initiation." 392 U.S. at 29, 88 S.Ct. at 1884. The Supreme Court elaborated on this in Brignoni-Ponce:
"These cases together establish that in appropriate circumstances the Fourth Amendment allows a properly limited `search' or `seizure' on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime. In both Terry and Adams v. Williams [407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612] the investigating officers had reasonable grounds to believe that the suspects were armed and that they might be dangerous. The limited searches and seizures in those cases were a valid method of protecting the public and preventing crime. In this case as well, because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be `reasonably related in scope to the justification for their initiation.' 392 U.S. at 29 [88 S. Ct. 1868, 20 L. Ed. 2d 889]. The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." 422 U.S. at 881-82, 95 S.Ct. at 2580 (emphasis added).
*1335 Here, the initial questioning was completed, there was a further detention, and, as stated before, it was not based on probable cause. Here, as in Pruss, the defendant was never told that he was free to leave or that he could refuse to cooperate with the agent's request. The defendant obviously didn't think he was free to leave, since immediately after "consenting" to the request, the defendant fled. There is no basis for finding that the defendant voluntarily consented to the further detention.
Judge Joiner in Van Lewis based his ruling on the fact that there are reasons for not interrogating suspects in the airport's public places the safety of both parties, the ability to converse effectively, and the embarrassment to the person detained. But none of these reasons take away from the fact that the nature of the intrusion is significantly changed when an individual is taken from a public place to what is in effect a police office. The fact that the individual might later be released from that office if he can prove to the agents that he is not transporting drugs is not controlling. Any individual who is arrested can gain his release by establishing to the arresting officer's satisfaction that he is not guilty of the crime he is suspected of having committed. In addition to the nature of the intrusion being changed, the intrusion is also being extended in a temporal sense.
The government relies in part upon cases holding that a detention based on reasonable suspicion can be prolonged if the initial detention leads to the discovery of further incriminating information. United States v. Solomon, 528 F.2d 88 (CA9 1975); United States v. Harris, 528 F.2d 1327 (CA8 1975). In these cases, however, the facts garnered by the officers during the initial detention were enough to establish probable cause. That is not the case here.
The actions of the agent in "requesting" that the defendant accompany him to a private office was an unreasonable extension of the scope of the stop. Terry v. Ohio, supra. It was a further detention and was not based on consent or probable cause. United States v. Brignoni-Ponce, supra. Illegal police conduct requires the suppression of all evidence that is seized as a result. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Manning v. Jarnigan, 501 F.2d 408, 411 (CA6 1974).[4]
The government at the hearing on the motion asserted that the defendant did not have standing to object to the search because he abandoned the property that he now seeks to have suppressed. One has no standing to challenge the search of an area or thing he or she has abandoned. Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559 (1968). The abandonment must, however, be voluntary. United States v. Colbert, 474 F.2d 174 (CA5 1973). The abandonment here was not voluntary. Nor can the abandonment be the result of illegal police conduct. United States v. Maryland, 479 F.2d 566, 568 (CA5 1973). The abandonment here was the result of illegal police conduct. In addition, the automatic standing rule is applicable where the defendant is charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and/or seizure. Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973). The government argues that the automatic standing rule is no longer good law. One district court decision states as much in dicta. United States v. Cotham, 363 F. Supp. 851 (W.D.Texas 1973). The overwhelming weight of authority is to the contrary. United States v. Holmes, 521 F.2d 859 (CA5 1975); United States v. Boston, 510 F.2d 35 (CA9 1974); United States v. DeMarco, 488 F.2d 828 (CA2 1973); United States v. Chadwick, 393 F. Supp. 763 (D.Mass.1973); United States v. Lisk, 383 F. Supp. 550 (E.D.Wis.1974). This Court will follow the latter authorities. For all these reasons, the defendant does have standing to bring this motion.
*1336 The motion to suppress the alleged heroin is granted. It will be so ordered.
NOTES
[1] The facts were uncontested, as the defendant failed to appear at the evidentiary hearing. The defendant was deemed to have waived his right to be present at the suppression hearing by his voluntary absence. United States v. Dalli, 424 F.2d 45, 48 (CA2 1970); United States v. Mendenhall, No. 6-80208 (E.D.Mich., November 18, 1976).
[2] Compare the facts here with the facts the Second Circuit found to be sufficient to justify a stop in United States v. Magda, 547 F.2d 756, 20 Cr.L. 2317 (CA2 1976).
[3] Cf., United States v. Prince, 548 F.2d 164, No. 76-1344 (CA6 1/19/77), (held that there was probable cause when defendant was stopped and taken into office).
[4] The airport situation is unique. If the agent does not seize the contraband before it leaves the airport, there is rarely a second chance to do so. Query: Under the circumstances does the suppression rule achieve its stated objective?
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425 F. Supp. 863 (1975)
Clyde JACQUET, Individually and on behalf of her minor children, Orenton Jacquet, Jr. and Darrin Jacquet and on behalf of all others similarly situated, et al., Plaintiffs,
v.
Garland L. BONIN, Commissioner of the Louisiana State Department of Public Welfare, Individually and in his official capacity, Charles C. Mary, Jr. Commissioner of Health, and Social and Rehabilitation Services, Defendants.
No. 72-2589.
United States District Court, E. D. Louisiana.
July 21, 1975.
*864 Anne Pardee Buxton, Jack M. Stolier, New Orleans, La., for plaintiff.
Terry F. Hessick, Louisiana Dept. of Public Welfare, Legal Division, Baton Rouge, La., for defendants.
Ford Dieth, Asst. U. S. Atty., New Orleans, La., William Guste, Atty. Gen. State of Louisiana, Baton Rouge, La., Michael H. Cook, Dept. of Justice, Washington, D. C., for H.E.W.
CASSIBRY, District Judge:
REASONS FOR DENIAL OF MOTION FOR PRELIMINARY INJUNCTION
This suit is a class action challenging two policies of the welfare department of the State of Louisiana. Under the first policy the department reduces the current assistance grant of a family receiving Aid to Dependent Children in order to recoup prior overpayments resulting from the failure of the head-of-the-household to report all income. Under the second policy the department terminates from the food stamp program a household found to have failed to report all its income. The plaintiffs-intervenors who represent members of two subclasses of households affected by these policies ADC recipients, food stamp recipients seek relief from these two policies by a motion for preliminary injunction. The reasons for denial of the preliminary injunctive relief as to these two policies are set out separately.
THE AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM
This part of the case arises under Title IV of the Social Security Act, section 401, et seq., 42 U.S.C. section 601 et seq., which establishes the Aid to Families with Dependent Children (AFDC) program. That program is a cooperative federal-state program which provides aid in the form of cash assistance and social services to needy dependent children and their caretaker relatives as defined therein.
Plaintiffs-intervenors (hereinafter plaintiffs) have challenged the validity of a regulation issued by the Department of Health, Education and Welfare (HEW) under that program appearing at 45 C.F.R. 233.20(a)(12)(i), 39 F.R. 22269 (June 21, 1974.)[1] This regulation essentially permits states to recoup prior overpayments of AFDC to which recipients were not entitled from the current assistance grant when the recipient does not presently have income available in the amount of the proposed recoupment. However, that regulation only permits such recoupment when the prior overpayments were occasioned by the willful withholding of information by the recipient regarding income, resources, or other information affecting eligibility for or the amount of the assistance grants. The named plaintiffs are recipients of aid under Louisiana's AFDC program whose grants have been reduced by the state in order to recover prior overpayments of assistance resulting from their willful failure to report income. While plaintiffs' motion for a preliminary injunction requests no relief specifically against HEW, determination of the legal validity of that regulation is crucial with respect to determining the validity of Louisiana's recoupment policy; since title IV is silent on this matter, the federal regulation provides the basis for such a state policy.
Plaintiffs challenge HEW's recoupment regulation as being in contravention of: (1) the purposes of the AFDC program; (2) Section 402(a)(7) of the Social Security Act; and (3) Section 402(a)(10) of the Social Security Act.
After hearing extensive testimony and oral argument, and reviewing the briefs and exhibits submitted by the parties, this Court is convinced that plaintiffs have failed to demonstrate any likelihood of success on the merits of this action for the reasons set forth below. Thus, plaintiffs' motion for preliminary relief on this matter must be denied.
*865 (a) The Purposes of the Social Security Act.
Plaintiffs have argued that recoupment of prior overpayments is in contravention of the purposes of the Social Security Act which are enumerated in Section 401 of the Act, 42 U.S.C. § 601. This Court sees no merit in this contention.
HEW's recoupment regulation permits states to reduce a recipient's current assistance grant in order to recover prior overpayments which were caused by his own willful actions. The regulation is essentially one which furthers states' interests in fair, equitable, and efficient administration of their AFDC programs by providing them with a vehicle both to deter willfully inaccurate reporting (or failure in reporting) of information which affects the amount of the assistance grant, and to recover overpayments caused by such reporting so that the vast majority of welfare recipients who accurately report such information are not disadvantaged.
HEW has indicated that the regulation does not mandate that states recoup because program conditions in the states vary. For instance, states differ in the amount of funds which they allocate to their AFDC programs; some states pay need in full as determined according to their state's standard, while others pay varying percentages of that need. Since conditions and fiscal resources thus vary considerably among the states, the necessity for recouping overpayments in order to deter inaccurate reporting and attain a fair apportionment of funds may also vary. Therefore, recoupment under HEW's regulation is at the states' discretion.[2]
This Court believes that states should be permitted to recoup overpayments under the circumstances permitted by HEW regulations since states have limited and finite resources to commit to their AFDC programs. Since each recipient's grant is determined by deducting income and resources from the state's standard of need, it is essential that a state agency receive accurate information regarding each recipient's income so that it may distribute its limited resources in a fair manner.[3] Should the agency's funds become prematurely depleted, the agency may be required to reduce benefits to all recipients, or it may be precluded from raising benefits. By permitting states to recover a percentage of overpayments where a recipient has willfully withheld information thereby obtaining benefits to which he or she was not entitled, *866 the recoupment regulation provides the state with a tool for eliminating any incentive to inaccurate reporting and provides a method by which the state may recover such overpayments. In this way the vast majority of recipients who accurately report their income and resources are not disadvantaged.[4] In the absence of authority to recoup such overpayments, a state's ability to require accurate reporting of information would be severely limited.
This is especially so in a state like Louisiana which pays only approximately 60 percent of the minimum standard of need, and where there is thus already a strong incentive for the recipient to report income and resources inaccurately; and yet, absent the accurate reporting of information regarding income, resources, and other pertinent data, administration of the state welfare program could be severely handicapped, and a fair distribution of the state's limited funds could be impossible.
One other federal district court has recognized the permissibility of recoupment and its value as an administrative tool. In the unreported case of Lomax v. Lavine, Civil Action No. 72-Civ. 2457 (S.D.N.Y., July 31, 1972), the Court denied a motion for a preliminary injunction against the application of a New York welfare regulation which provides for the reduction of current assistance grants over a six-month period to recover duplicate payments procured by fraud. The Court stated:
. . . the public fisc is not an unlimited financial resource. Such an injunction would encourage perjury, larceny and fraud, a purpose which does not commend itself to a court of equity. . . .
No other reasonable remedy suggests itself. Suing the recipients and recovering Civil judgments would likely be expensive and unrewarding. Charging these welfare mothers with crimes might well be socially counter-productive. Convictions would be of necessity so selective and irregular as to be arbitrary and discriminatory, or else the state criminal courts would have no time for other crimes. . . .
Balancing the equities requires us to avoid a preliminary injunction which will place a premium upon fraud, and give members of the plaintiff class an unfair advantage over those honest mothers who are not enjoying duplicate payments, and are limited, because of finite state funds available, to a bare 90% of computed need, based on 1968 costs of living [Rosado v. Wyman, 397 U.S. 397 [90 S. Ct. 1207, 25 L. Ed. 2d 442] (1970)]. It is unfair to those beneficiaries to let such a large amount of money be diverted, wrongfully, from its budgeted purpose, and it is likewise unfair to taxpayers. (Lomax, supra at pp. 11, 12).
Plaintiffs cite four federal court decisions in which district courts have invalidated state recoupment regulations as contravening Sections 402(a)(7) and (10), and the purposes of the Social Security Act.[5] However, for reasons described herein, this Court disagrees with those decisions and agrees with the federal district courts in NWRO, supra, and Lomax, supra that recoupment of prior overpayments from the current assistance grant is consistent with the Act where the recipient caused the overpayment by willfully withholding pertinent information.
*867 Plaintiffs argue that any practice which denies aid to an eligible child is not permitted under the Act. However, the United States Supreme Court has clearly indicated that state rules which further efficient program administration conform to the Social Security Act, even though the application of such rules may result in the denial of, or reduction in, assistance to an otherwise eligible child as a result of his caretaker relative's failure to abide by such rules. Wyman v. James, 400 U.S. 309, 91 S. Ct. 381, 27 L. Ed. 2d 408 (1971); Snell v. Wyman, 281 F. Supp. 853 (S.D.N.Y.1968), aff'd 393 U.S. 323, 89 S. Ct. 553, 21 L. Ed. 2d 511 (1969); New York State Department of Social Services v. Dublino, 413 U.S. 405, 93 S. Ct. 2507, 37 L. Ed. 2d 688 (1973).
If states may impose rules to assist the administration of their AFDC program, HEW clearly may promulgate regulations permitting them to do so. HEW's recoupment regulation is a regulation which furthers effective administration of the states' AFDC programs by providing them with a tool for receiving accurate reporting of information regarding income and resources, and thereby is fully consistent with the purpose of providing aid to needy and dependent children, "as far as [is] practicable under the conditions in [each] State." Section 401 of the Act, 42 U.S.C. § 601. (Emphasis supplied.) Accurate reporting is essential for assuring that each AFDC recipient is eligible under the state's standard and receives the precise amount of assistance authorized under that standard.
Moreover, at least since 1951, (with the exception of a brief period from April, 1967 through June, 1968) HEW has maintained a policy of permitting recoupment from the current assistance grant, at least where the recipient caused the overpayment by willful withholding of information. This long standing interpretation of the statute by those charged with its execution is entitled to be given great weight absent compelling indications that it is erroneous, especially when Congress has refused to alter the administrative construction. Zemel v. Rusk, 381 U.S. 1, 11, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965); Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90, 79 S. Ct. 141, 3 L. Ed. 2d 132 (1958); Arizona State Dept. of Public Welfare v. DHEW, 449 F.2d 456, 468, 470 (9 Cir. 1971), cert. den. 405 U.S. 919, 92 S. Ct. 945, 30 L. Ed. 2d 789 (1972). In this instance, no such compelling indication exists. Rather, HEW's recoupment policy is fully consistent with the purpose of the Social Security Act, and legislative history indicates that Congress was clearly aware of HEW's policy of permitting recoupment in such circumstances.[6] Thus, in addition to the reasons stated previously, Congress' failure to amend that Act subsequently to prohibit recoupment indicates its understanding that such a policy is fully consistent with the Act.
(b) Section 402(a)(7) of the Social Security Act.
Section 402(a)(7) of the Social Security Act, 42 U.S.C. § 602(a)(7), in relevant part, provides that "the State agency shall, in *868 determining need, take into consideration any other income and resources of any child or relative claiming [AFDC] . . .." The Supreme Court has interpreted this provision to preclude a state from assuming the availability of income to a recipient absent a showing that such income was "in fact" available to the recipient. Thus, in King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), and Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970), the Court disapproved state regulations which permitted a state agency to consider income of an individual who was cohabitating with a child's mother or of a non-adoptive step-father (who had no legal duty under state law to support the child) in determining whether a child was needy. The Court did note such income could be considered where it was actually being made available to support the child. Also see Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741, 44 L. Ed. 2d 208 (1975).
The focus of plaintiffs' argument with regard to this provision is that the recoupment from current assistance grants of prior overpayments where the recipient has willfully withheld income and resources violates this "assumption of income" rule by creating a conclusive presumption that the overpayment is available to meet the current needs of the family. This argument, however, misinterprets both the nature of recoupment and the Supreme Court decisions cited above, for in the recoupment situation, the recipient has at one time actually received the amount of the overpayment. Thus when a state recoups prior overpayments pursuant to HEW's recoupment regulation, it does not indulge in the assumption of income that was never available. Rather, the state is recouping an overpayment which was actually made available to a recipient at a previous point in time as a result of the recipient's purposeful failure to report accurate information. Moreover, no presumption about the present existence of income is being made, for it is known and intended that in those instances in which recoupment is deducted from the current payment, the amount of benefits will be lower than it would have been had there been no recoupment.
The only prior case to which HEW was a party in which recoupment provisions were challenged, NWRO v. Weinberger, supra, 377 F.Supp. at 869, also held that recoupment from the current assistance grant of prior overpayments caused by willful withholding of information did not violate Section 402(a)(7).
(c) Section 402(a)(10) of the Social Security Act.
Section 402(a)(10), 42 U.S.C. § 602(a)(10), provides that "all individuals wishing to make application for [AFDC] shall have opportunity to do so, and that [AFDC] shall be furnished with reasonable promptness to all eligible individuals." Plaintiffs contend that the Supreme Court has interpreted this provision to prohibit states from setting eligibility standards which exclude from a state's AFDC program any eligible individuals absent clear evidence that Congress has authorized such an exclusion. Townsend v. Swank, 404 U.S. 282, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971); Carleson v. Remillard, 406 U.S. 598, 92 S. Ct. 1932, 32 L. Ed. 2d 352 (1972). Plaintiffs then argue that the reduction of a recipient's grant in order to recover prior overpayments constitutes an impermissible eligibility standard in contravention of this provision of the Act as interpreted by those cases.
Plaintiffs' argument is based upon the fallacious assumption that Section 402(a)(10) entitles a recipient not only to eligibility for benefits but also to the actual receipt of a given level of benefits. However, the Supreme Court has indicated that this is not so. While Section 402(a)(10) requires a state to provide aid to all individuals who qualify for aid under the federal statute and the state plan, this provision is directed toward the question of eligibility to participate in the program and is not intended to provide individuals with any particular level of benefits under the program. Jefferson v. Hackney, 406 U.S. 535, 92 S. Ct. 1724, 32 L. Ed. 2d 285 (1972); Dandridge v. Williams, 397 U.S. 471, 481, 90 *869 S.Ct. 1153, 25 L. Ed. 2d 491 (1970).[7] In Jefferson, in describing Section 402(a)(10) of the Act, the court stated:
That section [42 U.S.C. 602(a)(10)] was enacted at a time when persons whom the State had determined to be eligible for the payment of benefits were placed on waiting lists, because of the shortage of state funds. The statute was intended to prevent the States from denying benefits even temporarily, to a person who has been found fully qualified for aid. See H.R.Rep.No.1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong.Rec. 13934 (remarks of Rep. Forand). Section 402(a)(10) also prohibits a State from creating certain exceptions to standards specifically enunciated in the federal Act. See, e. g., Townsend v. Swank, 404 U.S. 282 [92 S. Ct. 502, 30 L. Ed. 2d 448] (1972). It does not, however, enact by implication a generalized federal criterion to which States must adhere to their computation of standards of need, income, and benefits.[14]Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants' invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter." 406 U.S. at 545, 92 S.Ct. at 1731. (Emphasis supplied, footnote omitted.)
Further, in Dandridge v. Williams,[8] 397 U.S. at 481, 90 S.Ct. at 1159, the Supreme Court stated:
. . . the practical effect of the Maryland regulation is that all children, even in very large families, do receive some aid. We find nothing in 42 U.S.C. § 602(a)(10) 1964 ed., Supp. IV) that requires more than this.[12] So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated. (Emphasis supplied; footnote omitted.)
These cases indicate that notwithstanding the validity of plaintiffs' interpretation of Townsend, supra, the proscription contained in Section 402(a)(10), does not encompass or extend to state practices or regulations which operate, not to deny eligibility to an individual, but only to reduce the amount of assistance for which he is otherwise eligible. This section, therefore, has no bearing on the HEW recoupment regulation since that regulation operates only to reduce the amount of an individual's AFDC grant.[9]
*870 For the reasons stated above, this Court rejects plaintiff's arguments regarding their likelihood of prevailing on the merits of their contention that HEW's recoupment regulation is in contravention of the Social Security Act. Since this Court has not been presented with any evidence that Louisiana's recoupment policy violates the federal regulation, plaintiffs' motion for a preliminary injunction against Louisiana with regard to the state's recoupment policies must be, and hereby is, DENIED.
THE FOOD STAMP PROGRAM
The injunctive relief sought by plaintiffs-intervenors would restrain the state welfare department defendants from denying food stamps to households who obtain such stamps through fraud, and would require the recertification of all households thus denied.
Plaintiffs-intervenors and the class they represent challenge provisions of the Food Stamp Program regulations[10] which authorize a state agency[11] to disqualify from program participation any household who obtains food stamps through fraud. The federal regulation is the source of a policy provision in the Louisiana State Food Stamp Manual[12] which authorizes termination of a household's food stamp allotment where fraud is involved. Both the federal regulation and the corresponding section of the State Food Stamp Manual are challenged on the grounds they violate various provisions of the Food Stamp Act (7 U.S.C. §§ 2013(a) and 2014(b)).
Plaintiffs-intervenors are all present or former food stamp recipients whose benefits were terminated or applicants whose applications were denied because of willful fraudulent representations they allegedly made during the food stamp certification process. For purposes of this motion only, the alleged fraudulent representations will be assumed to have occurred. Plaintiffs-intervenors contend that even if they are guilty of making fraudulent representations, they are nevertheless eligible to continue to receive food stamps. This contention brings into focus the central issue on which this controversy revolves.
A review of the Food Stamp Act of 1964, as amended, and the regulations issued pursuant to that Act, is necessary to an understanding of the issues here presented.
The declared policy of Congress in authorizing a food stamp program was, primarily, to "alleviate . . . hunger and malnutrition" by permitting "low-income households to purchase a nutritionally adequate diet through normal channels of trade." (7 U.S.C. § 2011) Authority to formulate and administer a food stamp program was vested in the Secretary of Agriculture to whom Congress delegated broad authority to issue *871 regulations "for the effective and efficient administration of the food stamp program."
Participation in the Food Stamp Program is on a "household"[13] basis and eligibility is determined according to uniform national standards prescribed by the Secretary of Agriculture in consultation with the Secretary of Health, Education and Welfare. The Act prescribes only minimum standards of eligibility and delegates to the Secretary of Agriculture the establishment of additional and more detailed standards.
The standards established by the Secretary, at a minimum, shall prescribe the amounts of household income and other financial resources, including both liquid and nonliquid assets, to be used as criteria of eligibility . . . (underscoring supplied) (7 U.S.C. § 2014(b)).
Regulations setting forth uniform standards of eligibility and operating procedures are published in the Federal Register. Codified, they appear at 7 CFR Parts 270-275.
Eligibility for food stamps is determined on the basis of household income and various additional factors. For example, by amendment to the Food Stamp Act, Congress required that a household which includes an able-bodied adult between 18 and 65 years of age shall not be eligible for assistance if such person fails to meet certain employment criteria (7 U.S.C. § 2014(c)). The regulations provide that a household may be found ineligible or its food stamp benefits terminated if such household refuses to cooperate in providing the information necessary for making a determination of eligibility or ineligibility (7 CFR Part 271.3(a)(1)(i)). To implement the statutory work requirement, a household may also be declared ineligible if a household member refuses without good cause to register for work, refuses to report for a job interview or refuses to accept a bona fide offer of suitable employment (7 CFR Part 217.3(d)(2)).
Plaintiffs-intervenors do not challenge the right of the Government to punish violations of the Food Stamp Act by criminal prosecution under 7 U.S.C. § 2023. It is the administratively imposed sanction of denying food stamp benefits because of fraud that plaintiffs-intervenors challenge as being contrary to sections 4(a) (7 U.S.C. § 2013(a)) and 5(b) (7 U.S.C. § 2014(b)) of the Act. In providing criminal penalties for the misuse or wrongful acquisition of food stamps, Congress chose not to rely on the general criminal statutes in Title 18 of the United States Code. Instead, Congress included criminal sanctions as part of the Food Stamp Act. In that connection, the Act makes it unlawful to knowingly use, transfer, acquire, alter or possess food stamps or authorization to purchase cards in a manner not authorized by the Act or by the regulations. If the stamps or authorization to purchase cards are worth less than $100, the violation is a misdemeanor punishable by a fine of up to $5,000, one year's imprisonment, or both. Where $100 or more is involved, the violation is a felony punishable by up to 5 year's imprisonment, a fine of not more than $10,000, or both.
Specific authority for State agencies to deny food stamps to a household who obtains such stamps by fraud is derived from the challenged regulation here at issue. The issue for decision is whether the power to exclude such a household from participation in the program is inherent in and necessarily incident to the effective administration of the statutory scheme. A similar question was presented in Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964). There, plaintiffs were temporarily barred from participating in certain contracts with the Commodity Credit Corporation because of their misuse of official inspection certificates. Appellants contended, inter alia, that debarment was neither authorized by statute or by regulation. Though the debarment was invalidated on *872 appeal because of a lack of procedural regulations providing notice, hearings and findings,[14] the appellant court affirmed the power of the Commodity Credit Corporation to debar contractors who were doing business with the Corporation and were irresponsible, defaulting or dishonest. "Notwithstanding its severe impact upon a contractor," the court ruled, "debarment is not intended to punish but is a necessary `means for accomplishing the congressional purpose' of the Commodity Credit to `aid in the development of foreign markets for, agricultural commodities.'" The court concluded that "without such power to deal with irresponsible bidders and contractors, the efficiency of Commodity Credit's operations would be severely impaired. See L. P. Steuart & Bro., Inc. v. Bowles, 322 U.S. 398, 406, 64 S. Ct. 1097, 88 L. Ed. 1350 (1944)." And in Niagara Mohawk Power Corporation v. Federal Power Commission, 126 U.S. App.D.C. 376, 379 F.2d 153, 159 (1967), which involved the issuance of a power company license, the court declared that "while [a] license may not be unreasonably or unlawfully withheld, it certainly need not be extended to an applicant not ready to redress his default by discharging the duty he should by rights have assumed without nudging." Unlike Gonzalez, the denial of food stamps to plaintiffs-intervenors was pursuant to authority contained in a regulation undoubtedly designed to prevent fraud by both applicant and recipient alike.
We conclude that the power to temporarily disqualify a household from receiving food stamps is inherent in and necessarily incident to the effective administration of the Food Stamp Act. The challenged regulation from which the State agency derived its authority to deny food stamps, in the circumstance here involved, is a valid and reasonable exercise of the authority provided to the Secretary under the Act.
Plaintiffs-intervenors contention that they are eligible for food stamps even if they acquired the stamps by fraud is patently unreasonable and unsupportable. Acceptance of this contention would render meaningless the criteria for eligibility which are designed to protect the program from abuse, thus insuring that available resources are made available only to the truly needy. To a large degree, the integrity of such a program must depend in large measure upon the accuracy and honesty in fact of applicants and recipients. More importantly, judicial endorsement of this contention would discourage rather than encourage the good faith dealing between parties so necessary to administer with equity and fairness this and all other similar federal programs involving many millions of applicants and recipients. Principles of equity and justice require that plaintiffs-intervenors not be permitted to profit by their own wrongdoing. Accordingly, the injunctive relief sought must be DENIED.
NOTES
[1] The regulation was revised and published on that date to conform with a court order in NWRO v. Weinberger, 377 F. Supp. 861, 869 (D.D.C.).
[2] Moreover, the desirability of recoupment may vary on a case-by-case basis within each state. Where the recipient has no (or limited) income and resources above the need level recoupment of a percentage of the overpayment may well be the most reasonable deterrent to the willfully inaccurate reporting of income or resources. Plaintiffs have argued that criminal prosecution of a parent of a dependent child may act as an appropriate deterrent to willfully inaccurate reporting. However criminal prosecution for welfare fraud could well result in the jailing of the needy dependent child's caretaker relative. Since in most instances the child is already dependent as a result of the incapacity or desertion of one or more parents (see Section 406(a) of the Act, 42 U.S.C. § 606), incarceration of the remaining parent could thus result in far more severe hardship on and punishment of the child than the recoupment of a small percentage of a welfare grant. Any other criminal penalty could well be meaningless. By virtue of its optional status, HEW's recoupment regulation enables the state agency to determine on a case-by-case basis which method of deterrence, if any, of such fraud would be most consistent with the purposes of the act and the effective administration of the program.
[3] The primary basis for entitlement to benefits under the public assistance titles of the Social Security Act is financial need. However, the Act itself does not define a standard of need; that is a matter left to the discretion of the states. Neither does the Act prescribe the level of payments to be made under the program. That, too, is a decision committed to the state. Further, not only does a state have considerable discretion in setting the level of the need standard, it also has the right to limit the proportion of recognized need which it will meet with welfare payments. A state may, for example, furnish only 75 percent of an individual's or family's need under the state standard. See Rosado v. Wyman, 397 U.S. 397, 409, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). Or it may establish a maximum amount which it will pay to any individual or family. See Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970).
[4] Plaintiffs' arguments focus upon the effect of recoupment upon the dependent child whose caretaker relative willfully either inaccurately reports or fails to report information and thereby receives a payment to which he or she is not entitled. This entirely ignores the plight of the majority of dependent children whose parents accurately report such information as required by law. Each time the parent of one dependent child receives an overpayment as a result of willfully withholding accurate information concerning income, resources, or other pertinent circumstances, other equally needy and dependent children may be subject to reduction of their grants if the overpayment is not recouped. Furthermore, failure to recoup such overpayments may also decrease the opportunity for the state to raise its benefits to all recipients by depleting limited welfare funds.
[5] Cooper v. Laupheimer, 316 F. Supp. 264 (E.D. Pa.1970), Holloway v. Parham, 340 F. Supp. 336 (N.D.Ga.1972), Bradford v. Juras, 331 F. Supp. 167 (D.Or.1971), and Caruthers v. Friend, Civil Action No. 7188 (M.D.Tenn., February 7, 1974).
[6] Legislation was introduced in the Senate in 1972, which included a provision specifically requiring recoupment of overpayments from the current assistance grants, even where the overpayment was not caused by the recipient's willful withholding of information. (H.R. 1, as reported out by the Senate Finance Committee, section 404(f)(2), S.Rep.No. 92-1230, p. 814) In discussing that proposed provision, the Senate Committee on Finance recognized the existence of HEW's recoupment regulation which at that time authorized recoupment from the current assistance grant only in instances where the recipient willfully withheld information. S.Rep. 92-1230, 92nd Cong., 2d Sess. 476 (1972)
Since the entire legislative package (which contained controversial reform amendments which would have totally revamped the AFDC program) was defeated in toto, the above-mentioned section of the Senate Committee's report is simply a reflection of the view of its members at that time. However, it does indicate that Congress was then aware of HEW's existing regulation. Congress' failure subsequently to enact legislation prohibiting recoupment from the current assistance grant of prior overpayments caused by the recipient's willful withholding of information indicates approval of such a policy in view of the congressional awareness that HEW regulations authorized such a practice.
[7] In three federal court decisions cited by plaintiff, Cooper, supra, Holloway, supra, and Bradford, supra, Courts have applied Section 402(a)(10) to invalidate state recoupment regulations which reduce level of benefits. However, all three were decided prior to the Supreme Court's decision in Jefferson. Moreover, none of these opinions cites Dandridge with regard to Section 402(a)(10). Yet both Dandridge and Jefferson clearly refute the interpretation placed upon that provision by the Courts in Cooper, Holloway, and Bradford. Further, in Holloway, the Court on three occasions cited HEW's regulation at 45 C.F.R. 233.20(a)(3)(ii)(d), repealed 38 F.R. 22010 (August 15, 1973), which provided for recoupment where there was willful withholding of information with apparent approval, 340 F.Supp. at 338, fn. 4, 343, 344. HEW was not a party to any of these actions.
[8] The Court in Dandridge upheld the validity of a Maryland regulation which set a maximum on benefits which would be provided to any one family regardless of the number of dependent children included therein. The result of such a regulation was that each dependent child in a family whose need exceeded the maximum would receive less aid than a child in a family whose need did not exceed that maximum.
[9] Plaintiffs cite the cases of Lavine v. Shirley, Lascaris v. Shirley, 420 U.S. 730, 95 S. Ct. 1190, 43 L. Ed. 2d 583 (1975) and Doe v. Rampton, 497 F.2d 1032 (10th Cir. 1974), in which federal courts have invalidated certain regulations as contravening section 402(a)(10) of the Act, for the proposition that any proscription contained in Townsend extends to practices like recoupment. However, the regulations involved in each of these cases resulted in the termination of a parent's AFDC eligibility. Unlike those regulations, HEW's recoupment regulation does not authorize a state to terminate any recipient's grant. 45 C.F.R. 233.20(a)(12)(i)(f) provides that ". . . If recoupments are made from current assistance payments, the State shall, on a case-by-case basis, limit the proportion of such payments that may be deducted in each case, so as not to cause undue hardship. . . ." (Emphasis supplied) Implicit in the use of the word "proportion" is the fact that a recipient's eligibility for cash assistance will not be terminated. Moreover, the recipient will still be eligible for medical benefits under the Medicaid program established pursuant to title XIX, section 1901, et seq. of the Social Security Act, 42 U.S.C. 1396 et seq. See Section 1902(a)(10). HEW's recoupment regulation simply permits a state to reduce the level of a recipient's grant.
[10] The challenged regulation (7 CFR § 271.7(d)), in relevant part, reads as follows:
(d) * * * If the State agency finds that any eligible household has failed substantially to comply with the provisions of this part, the Plan of Operation, or any procedures or instructions issued by FNS or the State agency resulting in the fraudulent acquisition of coupons, such household may be disqualified from further participation in the program by the State agency for such period of time as the State agency shall determine.
[11] A State agency is the agency of the State government responsible for administering the Food Stamp Program within the State. In Louisiana, that agency is the Health and Social and Rehabilitation Services Administration.
[12] Section 12-305 of the Louisiana State Food Stamp Manual, also challenged, reads in relevant part, as follows:
When it is administratively determined that the recipient has received bonus coupons for which he was not eligible due to fraud, a notice of adverse action shall be sent to the recipient and Form FSP-5-M submitted closing the case effective as soon as possible after expiration of the 15-day period.
[13] "Household" is defined in section 3(e) of the Act as "a group of . . . individuals . . who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common. . . ."
[14] Food Stamp Program regulations comply with due process requirements by providing to those adversely affected by State agency action notice and an opportunity to be heard. Section 271.1(n) provides that "prior to any action to reduce or terminate a household's program benefits . . . the State agency shall . . provide such household 10 day's advance notice before such action is taken." And section 271.1(o) requires the State agency to "provide any household aggrieved by any action of the State agency . . . with a fair hearing before the Agency or with an evidentiary hearing at the local level with a right to appeal to an Agency hearing."
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425 F. Supp. 411 (1976)
SENIOR CITIZENS CLUBS OF WINSTON-SALEM, NORTH CAROLINA, et al., Plaintiffs,
v.
DUKE POWER COMPANY et al., Defendants.
No. C-C-74-76.
United States District Court, W. D. North Carolina, Charlotte Division.
October 5, 1976.
*412 Bertram Ervin Brown, II, Forsyth County Legal Aid Society, Winston-Salem, N. C., for plaintiffs.
Clarence W. Walker, Edgar Love, III, and John M. Murchison, Jr., Kennedy, Covington, Lobdell & Hickman, Charlotte, N. C., for defendants.
Before HAYNSWORTH, Chief Judge, Fourth Circuit, and McMILLAN and WARD, District Judges.
HAYNSWORTH, Chief Judge, Fourth Circuit:
The plaintiffs sought injunctive relief against the implementation of an increase in the power company's rates for electricity. They allege that a North Carolina statute, permitting such increases after the expiration of six months of a suspension period, is unconstitutional insofar as it permits the power company to implement the increase before the conclusion of a full due process hearing as to the reasonableness of the increase. Because an injunction was sought against the application and enforcement of the statute upon the ground that it was unconstitutional, this three-judge district court was convened.
North Carolina, by its general statute § 62-134(a), permits an electric utility to increase its rates by giving notice to the North Carolina Utilities Commission thirty days in advance of the proposed increase. By § 62-134(b), however, the Commission is empowered to suspend implementation of the increase in order to permit it to hold hearings into the reasonableness of the rates. The Commission's power of suspension, however, is limited by § 62-135. Notwithstanding the Commission's suspension of the rates, § 62-135 provides that the utility may implement its rate increase after it has been in suspension for six months or more if it files with the Commission a secured undertaking, satisfactory to the Commission, to refund all collections under the new rates insofar as they exceed the rates which the Commission ultimately determines to be just and reasonable. Interest must be paid upon such refunds. It is that section, 62-135,[1] which is challenged by this action.
*413 The plaintiffs allege that they are a group of elderly poor people. They allege that the rate increase will have a substantial adverse effect upon their economic well-being, indeed, it will have an adverse impact upon their financial ability to provide themselves with adequate and wholesome meals. To the extent that the increase is implemented prior to the conclusion of the full hearing before the Commission and Commission approval of the increase, the plaintiffs allege it will deprive them of property rights without due process of law in violation of the Fourteenth Amendment. They rest their claim on 42 U.S.C.A. § 1983.
The plaintiffs can not succeed for at least two reasons. Implementation of the rate increase without the Commission's approval does not involve the requisite state action in a proceeding under § 1983. If the merits are reached, North Carolina's regulatory scheme meets all due process requirements.
I.
Jackson v. Metropolitan Edison, Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974) presented a challenge to an electrical utility's right to terminate a customer's service without a hearing. The utility had filed a tariff with the Pennsylvania Public Utilities Commission in which it reserved such a right of termination. The Commission had not disapproved that provision. In those circumstances, the Supreme Court held that termination of the service did not involve state action by Pennsylvania. It held that no more was shown "than that Metropolitan was a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory, and that it elected to terminate service to petitioner in a manner which the Pennsylvania Public Utilities Commission found permissible under state law".
We find the present situation indistinguishable from Jackson. Duke Power, as Metropolitan Edison, is a heavily regulated utility, enjoying a monopoly in providing electrical service within its territory. The North Carolina Utilities Commission is heavily involved in rate making, and it was serving a very positive role during its inquiry into the reasonableness of this increase, but its power of suspension is limited to a six months period. After that, it has no power to prevent the utility's implementation of the increase if the utility files *414 the requisite bond to secure the payment of whatever refunds, with interest, later may be required. The Commission's role in approving the bond for the refunds, however, is purely ministerial. It has no right to disapprove a proper bond when a proper secured undertaking is filed. Then, it simply has no power under state law to prevent implementation of a rate increase. North Carolina's legislature might have conferred broader powers upon the Commission, but it did not do so, and, to the extent that it did not, it left the utility in the position of an unregulated seller of services. As in Jackson, the utility has simply exercised a choice permitted it by state law. And, as in Jackson, the initiative came from the utility and not from the state. Hence, Jackson's conclusion that under those circumstances state action was not involved is controlling here.
Accordingly, a majority of us would dismiss the complaint.
II.
In light of the dissent of our brother McMillan as to dismissal, we go to the merits, and we see no due process deprivation.
Any state must approach its regulation of electric utility rates with several considerations in mind. The utility, enjoying a monopoly, must provide adequate service to its customers today and tomorrow at rates which are just and reasonable. It must not charge its current customers on the basis of rates which are more than reasonable, but it must not neglect to make adequate provision which may be required of it to meet the demand for its services which may be expected in the years to come. In areas in which the population is on the increase, industry is expanding and the use of electrical machinery and appliances is growing on a per capita and per household basis, both the state and the utility must be concerned with its capital requirements and the expansion of its productive capacity to meet predictable future requirements. Thus, neither the Commission, the state, nor the utility may look alone to the immediate needs or preferences of these plaintiffs or, indeed, of the utility's current customers collectively. The three must look to tomorrow and to the needs and interests of those who will be customers of the utility several years hence.
North Carolina's regulatory scheme with respect to rate increases strikes a reasonable balance between these considerations, even if they be thought sometimes competing. The power of the Commission to suspend a rate increase under investigation for a six months period gives an absolute preference for that period to the interest of current customers in paying no more than they have been paying for the electricity they consume. If increases may be suspended for longer periods, however, the interest of a utility's future customers may be impaired by the lack of adequate capacity to serve their needs. Thus, under the North Carolina statute, after lapse of the six month period during which the interest of present customers has an absolute preference, a conditional preference is given to the interest of future customers by permitting the implementation of the increase subject to mandatory refund to the extent that the implemented increase is larger than the rates ultimately approved by the Commission.
It would be nice, of course, if the Commission could conclude its hearings within the six months period, but rate regulation is not an uncomplicated thing. Extensive hearings may be necessary, and all of the relevant data may not be analyzed in a day.
Our conclusion is dictated by the Supreme Court's summary affirmance of Holt v. Yonce, D.C.S.C., 370 F. Supp. 374. There a three-judge district court upheld the constitutionality of a similar regulatory scheme of South Carolina, though there the Commission had no power of suspension. Implementation of the rate increases subject to refund was held not to deprive complaining customers of their right of due process.
The conclusion of the three-judge court in Holt was foreshadowed by the decision of the Supreme Court in United Gas Pipeline Co. v. Memphis Light, Gas & Water Division, 358 U.S. 103, 79 S. Ct. 194, 3 L.Ed.2d *415 153. It was specifically but summarily affirmed by the Supreme Court. Holt v. Yonce, 415 U.S. 969, 94 S. Ct. 1553, 39 L. Ed. 2d 867.
We are recently reminded by the Supreme Court that its dismissal of appeals for want of a substantial federal question are rulings on the merits binding upon subordinate courts such as this. Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). A summary affirmance is surely no less binding than a dismissal for want of a substantial federal question. This case is indistinguishable from Holt, and our inquiry need go no further than recognition that the Supreme Court has decided the substantive issue tendered here.
For these reasons, the complaint will be dismissed.
McMILLAN, District Judge, concurring in result only:
State action, I believe, is involved. On this question I agree with the reasoning of Holt v. Yonce, 370 F. Supp. 374 (Three-Judge Court, District of South Carolina 1973), affirmed without opinion 415 U.S. 969, 94 S. Ct. 1553, 39 L. Ed. 2d 867 (1974), which held (page 376) that a South Carolina power company, in setting temporary power rates under a similar statute, "clearly acted under color of state law, and the rights contended to be infringed are among those secured by the Constitution . . ." and that a suit like this one is validly constituted under 42 U.S.C. § 1983. Sellers v. Iowa Power and Light Co., 372 F. Supp. 1169 (S.D.Iowa 1974); cf. North Carolina ex rel. Utilities Commission v. Virginia Electric and Power Company, 285 N.C. 398, 206 S.E.2d 283 (1974).
The majority rejects the "state action" holding of Holt but cites its "due process" holding as a controlling precedent because of the Supreme Court's summary affirmance. If Holt controls anything, it should control the state action issue as well as the due process issue. It seems more likely, however, that the true stature of the Holt case is that described by Chief Justice Burger, concurring, in Fusari v. Steinberg, 419 U.S. 379, 391, 95 S. Ct. 533, 541, 42 L. Ed. 2d 521 (1975):
". . . When we summarily affirm, without opinion, the judgment of a three-judge District Court we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument. Indeed, upon fuller consideration of an issue under plenary review, the Court has not hesitated to discard a rule which a line of summary affirmances may appear to have established. E.q., Edelman v. Jordan, supra, 415 U.S. [651] at 671 [94 S. Ct. 1347 at 1359, 39 L. Ed. 2d 662]; Sniadach v. Family Finance Corp., 395 U.S. 337, 343-344 [89 S. Ct. 1820, 1823, 23 L. Ed. 2d 349] (Harlan, J., concurring); id., at 350 [89 S. Ct. 1820 at 1827] (Black, J., dissenting); Reynolds v. Sims, 377 U.S. 533, 614 [84 S. Ct. 1362, 1408, 12 L. Ed. 2d 506] (1964) (Harlan, J., dissenting)." (Emphasis added.) (Footnote omitted.)
Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974), does not require a different view. In Jackson the Supreme Court decided only that state action was not involved when the power company cut off electric service for nonpayment of a bill, under the authority of a tariff filed with, but not formally considered and approved by, the regulatory agency. The Court went to great lengths to point out that whether state action is present must be determined not by simple definition of the entity involved, but by analysis of the particular conduct under challenge; "detailed inquiry may be required in order to determine" whether the utility is doing the state's work. Jackson also relied upon the lack of proof that the Pennsylvania Public Utilities Commission had ever approved or even formally considered the tariff authorizing utilities to cut off power, and upon the fact that the state took no part in cutting off power and had specified no procedures which had to be followed to do it.
*416 Jackson is a far cry from this case. Rate making in North Carolina as opposed to circuit breaking in Pennsylvania is totally controlled by statute and regulation. Moreover, shutting off service for nonpayment of bills by defaulting customers has strong equity in its favor. By contrast, the plaintiffs in this case are in default on nothing, and making utility rates is a process in which the Commission is required by statute to be deeply involved. Rate making is judicial in nature, controversial in public aspect, and technical in detail. Because Jackson does not require, and the Supreme Court should not rule, that rate making is not state action, I would face and decide the due process question on its merits.
Next, I would find that, although their individual rights are small in dollars, plaintiffs as low income customers have a property right deserving of protection which triggers off due process requirements, and that these rights are of constitutional stature equal to the more imposing demands of future users for power. Holt v. Yonce, supra; cf. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Compare North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975) with Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974) and Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).
As to due process itself, the statutory scheme does not pass muster. The setting of higher power rates, temporary or otherwise, without notice or opportunity to be heard, which the statute authorizes, is not due process of law. With all due respect, I would not subordinate the present rights of present customers to the theoretical rights of future customers whose identity and rights are not yet known. The provisions for bond and refund are cold comfort to those whose property has thus been appropriated, Fuentes v. Shevin, 407 U.S. 67, 82, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). I would hold that the statutory scheme, as of the time this suit was filed, does not provide due process of law.
Nevertheless, since, and possibly because, this suit was filed, the 1975 North Carolina General Assembly has passed laws (1975 Session Laws Chapters 45, 184, 243, 510 and 867), which, among other things: (a) enlarge the Utilities Commission from five to seven members; (b) authorize rate hearings and final decisions by panels of three instead of by the full commission; (c) eliminate the time-consuming "future test" period; (d) authorize the Commission to suspend decision on a rate request indefinitely until the utility has filed all information needed for a decision; (e) allow the Commission to accelerate arguments, dispense with briefs, and decide on the record and the oral arguments.
These changes, now implemented, have equipped the Commission to do its job in timely fashion; and because of these changes it is unlikely that rate increases in the future will take place without action of the Utilities Commission. Because, therefore, of the de facto mootness of the issue, though unable to share the majority's views of the law, I concur in the result.
NOTES
[1] North Carolina General Statute, § 62-135:
Temporary rates under bond.
(a) Notwithstanding an order of suspension of an increase in rates, any public utility except a common carrier may, subject to the provisions of subsections (b), (c) and (d) hereof, put such suspended rate or rates into effect upon the expiration of six [6] months after the date when such rate or rates would have become effective, if not so suspended, by notifying the Commission and its consumers of its action in making such increase not less than [ten] 10 days prior to the day when it shall be placed in effect; provided, however, that utilities engaged in the distribution of utility commodities bought at wholesale by the utility for distribution to consumers may put such suspended rate or rates, to the extent occasioned by changes in the wholesale rate of such utility commodity, into effect at the expiration of [thirty] 30 days after the date when such rate or rates would become effective if not so suspended; provided that no rate or rates shall be left in effect longer than one year unless the Commission shall have rendered its decision upon the reasonableness thereof within such period. This section to become effective July 1, 1963.
(b) No rate or rates placed in effect pursuant to this section shall result in an increase of more than twenty per cent (20%) on any single rate classification of the public utility.
(c) No rate or rates shall be placed in effect pursuant to this section until the public utility has filed with the Commission a bond in a reasonable amount approved by the Commission, with sureties approved by the Commission, or an undertaking approved by the Commission, conditioned upon the refund in a manner to be prescribed by order of the Commission, to the persons entitled thereto of the amount of the excess and interest at the rate of six per cent (6%) per annum from the date that such rates were put into effect, if the rate or rates so put into effect are finally determined to be excessive.
(d) If the rate or rates so put into effect are finally determined to be excessive, the public utility shall make refund of the excess plus interest to its customers within [thirty] 30 days after such final determination, and the Commission shall set forth in its final order the terms and conditions for such refund. If such refund is not paid in accordance with such order, any persons entitled to such refund may sue therefor, either jointly or severally, and be entitled to recover, in addition to the amount of the refund, all court costs and reasonable attorney fees for the plaintiff, to be fixed by the court.
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893 F.2d 1149
29 Fed. R. Evid. Serv. 427
Brent Ryan WILSON, an infant By and Through his naturalguardians and parents, Susan and Ted WILSON;Susan Wilson and Ted Wilson,individually, Plaintiffs-Appellants,v.MERRELL DOW PHARMACEUTICALS INC., Defendant-Appellee.
No. 88-1058.
United States Court of Appeals,Tenth Circuit.
Jan. 8, 1990.
Barry J. Nace, Washington, D.C. (Don L. Dees, Tulsa, Okl., with him on the brief) for plaintiffs-appellants.
Robert L. Dickson of Dickson, Carlson & Campillo, Santa Monica, Cal. (George E. Berry and Robert M. Dato of Dickson, Carlson, & Campillo, Santa Monica, Cal., and Dan A. Rogers and Douglas W. Golden of Rogers, Honn & Associates, Tulsa, Okl., were on the brief) for defendant-appellee.
Before HOLLOWAY, Chief Judge, HENLEY* and EBEL, Circuit Judges.
HENLEY, Senior Circuit Judge.
1
Brent Ryan Wilson, along with his parents, Susan and Ted Wilson, brought a diversity suit against Merrell Dow Pharmaceuticals Inc. (Merrell Dow), alleging that Bendectin, a drug manufactured by Merrell Dow's predecessor Richardson-Merrell, Inc.1 and prescribed for Mrs. Wilson to alleviate morning sickness during her pregnancy with Brent, caused him to be born missing one finger on each hand. The Wilsons alleged claims of products liability, fraud and misrepresentation, breach of express and implied warranty, strict liability, and negligence. After a three-week trial in which both parties presented expert witnesses, the jury returned a general verdict in favor of Merrell Dow.
2
The Wilsons now appeal the district court's2 judgment entered on that verdict. They contend that the district court erred in (1) declining to give a jury instruction noting the failure of defense counsel to call an expert witness who had been expected to testify for Merrell Dow; (2) allowing defense counsel to tell the jury that the absent witness was equally available to the plaintiffs; (3) admitting into evidence Merrell Dow's "sales charts," which compared the rate of birth defects in the general population with the number of Bendectin tablets distributed and the number of Bendectin new therapy starts; and (4) failing to grant the Wilsons' motion for judgment notwithstanding the verdict or a new trial. We affirm.
I.
3
Merrell Dow's counsel told the jury during his opening statement that Dr. Burhan Say, a geneticist, would testify that Brent's birth defect was a genetic condition and was thus not produced by Mrs. Wilson's ingestion of Bendectin. After Merrell Dow completed presenting all of its evidence without calling Dr. Say to the witness stand, the Wilsons' counsel requested that the district court give a missing witness instruction regarding Dr. Say. The district court declined to do so, suggesting instead that the plaintiffs' attorney simply point out in his closing argument that Merrell Dow had failed to call Dr. Say as promised. The Wilsons' counsel followed this suggestion and argued to the jury that Dr. Say's nonappearance indicated that his testimony would have been adverse to Merrell Dow. Merrell Dow's attorney then responded in his closing argument by asserting that the Wilsons also could have called Dr. Say as an expert witness but had not even attempted to subpoena him, and that therefore nothing should be inferred from Dr. Say's failure to appear.
4
In their appeal the Wilsons contend that the district court should have given a jury instruction noting the failure of Dr. Say to testify. They also claim that it was improper for the district court to allow Merrell Dow's attorney to argue to the jury that Dr. Say was equally available to testify for the Wilsons.
5
In reviewing the district court's decisions to not give the requested missing witness instruction and to allow defense counsel's comment during closing argument, this court recognizes that those decisions rest largely within the trial judge's discretion. See, e.g., United States v. Sutton, 732 F.2d 1483, 1492 (10th Cir.1984) ("A trial court has discretion to give or refuse to give a missing witness instruction."), cert. denied, 469 U.S. 1157, 105 S.Ct. 903, 83 L.Ed.2d 919 (1985); Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719 F.2d 1335, 1352-53 (7th Cir.1983) ("Questions as to the propriety of comment by counsel in [closing] argument upon the failure to produce a witness rest largely in the discretion of the trial court.").
6
Courts have recognized four factors that must be present before a jury can be instructed to infer that a missing witness would have testified adversely to a party: (1) the party must have the power to produce the witness, see, e.g., Sutton, 732 F.2d at 1492; 2 J. Wigmore, Evidence in Trials at Common Law Sec. 286 (J. Chadbourn rev. ed. 1979 & Supp.1989); (2) the witness must not be one who would ordinarily be expected to be biased against the party, see id. Sec. 287, at 202 & n. 1; (3) the witness's testimony must not be "comparatively unimportant, or cumulative, or inferior to what is already utilized" in the trial, see id. Sec. 287, at 202-03 (emphasis omitted); and (4) the witness must not be equally available to testify for either side, see, e.g., Sutton, 732 F.2d at 1492; Quad Constr., Inc. v. William A. Smith Contracting Co., 534 F.2d 1391, 1394 (10th Cir.1976); 2 J. Wigmore, supra, at Sec. 288.3 The party requesting a missing witness instruction adverse to the other side has the burden to demonstrate that these criteria are satisfied. See, e.g., Sutton, 732 F.2d at 1492 (criminal defendant has burden to show that there are missing government witnesses); Jones v. Otis Elevator Co., 861 F.2d 655, 659-60 (11th Cir.1988) (requesting party must establish that potential witness is unavailable and that potential testimony is relevant and noncumulative).
7
Factors one and two appear to be present in this case. Merrell Dow's counsel's comment in his opening statement about Dr. Say indicated that Merrell Dow had the power to call Dr. Say to testify and that this testimony was not expected to be biased against the defendant. It is not clear from the record or briefs, however, whether criteria three and four were met here.
8
The Wilsons point out that without Dr. Say's testimony, Merrell Dow had no geneticist to testify. The plaintiffs, in contrast, called three geneticists, all of whom concluded that the birth defect was not genetically induced. Thus, one might argue that Dr. Say's testimony was comparatively important because it was the only testimony from a geneticist available to Merrell Dow to rebut the conclusions of the Wilsons' geneticists. On the other hand, one might reasonably determine that Dr. Say's testimony was not so essential for Merrell Dow's defense that Dr. Say's failure to testify should be accorded any evidentiary significance. Merrell Dow presented experts from other scientific fields, whose testimony will be discussed later in this opinion, who testified that Bendectin did not cause birth defects. The Wilsons' geneticists themselves acknowledged that many birth defects are genetic in nature and that Brent's birth defect was of a type that had occurred in the human population long before the introduction of Bendectin into the market. In light of the other evidence supporting Merrell Dow's position, it was within the discretion of the district court to conclude that Dr. Say's testimony was cumulative and had relatively insignificant probative value.
9
Moreover, the district court acted within its discretion in determining that Dr. Say was equally available to both parties. The Wilsons argue that it was impossible for them to call Dr. Say as a witness because of Dr. Say's relationship with Merrell Dow. That may be true, but the Wilsons did not even attempt to subpoena Dr. Say, nor did their counsel explain adequately in their appellate brief how Dr. Say's relationship with Merrell Dow prevented the Wilsons from calling Dr. Say to testify. The district court could have properly concluded that the plaintiffs did not meet their burden of demonstrating that Dr. Say was either legally or practically unavailable to testify for them. See United States v. Montoya, 676 F.2d 428, 431 (10th Cir.1982) (holding that district court did not abuse its discretion in refusing criminal defendant's request for a missing witness instruction regarding a government informant when defense counsel made only one attempt to meet with informant and did not attempt to subpoena him), cert. denied, 459 U.S. 856, 103 S.Ct. 124, 74 L.Ed.2d 108 (1983).
10
We thus conclude that the district court did not abuse its discretion in declining to give a missing witness instruction. Similarly, it was permissible for the district court to allow defense counsel's comment in closing argument that Dr. Say was equally available to testify for the Wilsons. When an absent witness is equally available to both parties, either party is open to the inference that the missing testimony would have been adverse to it. See 2 J. Wigmore, supra, at Sec. 288, at 208 & n. 4 (listing cases supporting the "more logical view ... that the failure to produce [a witness equally available to both sides] is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances") (emphasis in original). In these circumstances, comment by both sides in closing argument regarding the missing witness is appropriate. See C. McCormick, McCormick's Handbook of the Law of Evidence Sec. 272, at 657-58 (E. Cleary ed. 1972). If one side makes "an argument on failure to produce [a witness that] is fallacious, the remedy is the usual one, namely the answering argument and the jury's good sense." Id. Sec. 272, at 659.
II.
11
Next we consider whether the district court properly admitted into evidence Merrell Dow's two sales charts containing graphs plotting the rate of birth defects in the general population, the number of Bendectin tablets distributed, and the number of Bendectin new therapy starts.4
12
Merrell Dow introduced the first sales chart, Exhibit 2288, into evidence during the testimony of Dr. James Lee Goddard, a former Commissioner of the Food and Drug Administration (FDA). This chart, which was prepared by Dr. Goddard, compared the number of Bendectin tablets distributed with the rate of limb reduction birth defects for the years 1970-1984. Dr. Goddard calculated the number of Bendectin tablets distributed using data from annual reports that each pharmaceutical company was required to submit to the FDA. His sources for the rate of limb defects were annual reports of the Federal Center for Disease Control (CDC) in Atlanta, Georgia. The chart showed an increase and then decrease to zero for the number of Bendectin tablets distributed from 1970 to 1984, along with what Dr. Goddard called "a remarkably constant rate of limb defects" during the same period. Relying upon this chart and other evidence, Dr. Goddard concluded that Bendectin does not cause birth defects in general or limb reduction defects in particular.
13
The second chart, Exhibit 2280, was prepared by Dr. Steven H. Lamm, Merrell Dow's epidemiological expert, and was introduced into evidence during his testimony. This chart compared the number of Bendectin new therapy starts with the rate of limb reduction birth defects for the years 1970-1984. Like Dr. Goddard, Dr. Lamm obtained data for the rate of birth defects from the CDC. Dr. Lamm's source for the number of new therapy starts was Richard P. Smith, manager of new products and marketing research at Merrell Dow, who derived this data from information supplied by all pharmaceutical companies to independent market research firms. Exhibit 2280 showed the number of new therapy starts fluctuating up and down before declining to zero during a period when birth defects remained constant. Based upon this chart and other studies, Dr. Lamm agreed with Dr. Goddard's testimony that Bendectin does not cause birth defects.
14
The district court ruled that the charts were admissible as facts or data forming the basis of expert testimony under Federal Rule of Evidence 703. We review this decision under the abuse of discretion standard. See Marsee v. United States Tobacco Co., 866 F.2d 319, 321 (10th Cir.1989).
15
The Wilsons contend that the sales charts were hearsay that should have been excluded pursuant to Federal Rule of Evidence 802. We agree that the charts were hearsay, but this determination does not end our analysis. Federal Rule of Evidence 703 allows an expert witness to base his testimony upon facts or data that are hearsay, provided that those facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." We have interpreted Rule 703 as allowing an expert to reveal the basis of his testimony during direct examination, even if this basis is hearsay, provided that the facts or data underlying his conclusions are of a type reasonably relied upon by others in his field of expertise. See United States v. Affleck, 776 F.2d 1451, 1457-58 (10th Cir.1985). The hearsay is admitted for the limited purpose of informing the jury of the basis of the expert's opinion and not for proving the truth of the matter asserted. See id. at 1457.
16
After examining the trial transcript and sales charts, we conclude that the district court acted within its discretion in determining that the charts were of a type reasonably relied upon by experts who study birth defects and were therefore admissible under Rule 703.5 Dr. Goddard testified that the method he used in preparing Exhibit 2280--comparing the rate of birth defects with the distribution of a drug in order to determine whether the drug produced birth defects--is known as pharmacoepidimiology and is becoming accepted in the research community. He noted that a 1980 study in Northern Ireland utilized a similar technique by comparing the number of Bendectin prescriptions over a seven-year period with the rate of birth defects and found that while the amount of Bendectin prescribed increased very steadily, the rate of birth defects declined during the same period. Based upon this finding, the study determined that Bendectin does not cause birth defects. Dr. Goddard also discussed a study conducted by teratologists James Wilson and Clarke Fraser that compared the total distribution of the drug Contergan in West Germany with the rate of birth defects in that country from 1958 through 1962. According to Dr. Goddard, the West German study showed the rate of birth defects increased "almost in an identical fashion" with the sales of Contergan, which was later proven to cause birth defects. Dr. Goddard's testimony regarding these previous studies was sufficient for the district court to determine that both Exhibits 2280 and 2288, which also utilized a pharmacoepidimiological technique, were of a type reasonably relied upon by birth defect experts.
17
The Wilsons contest the admissibility of the sales charts by arguing that the charts did not take into account when the Bendectin was actually consumed. They point out that in order for the drug to have caused a birth defect, a pregnant woman would have had to have ingested it during the early part of her pregnancy, when the fetus's limbs were being formed. See Hull v. Merrell Dow Pharmaceuticals, Inc., 700 F.Supp. 28, 29-30 (S.D.Fla.1988) (granting Merrell Dow's motion for summary judgment because Bendectin was not taken during time of limb development). Because the charts did not distinguish those sales of Bendectin that occurred during the limb development period from those that did not, the Wilsons contend that the charts were misleading. We agree that this failure of the charts to take into account when the Bendectin was consumed may weaken their value as the basis for expert testimony, but this failure affects the weight, not the admissibility, of the charts under Rule 703. Cf. Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986) (noting that the failure of a regression analysis to include other variables that may affect the salary level of a Title VII plaintiff "[n]ormally ... affect[s] the analysis' probativeness, not its admissibility"). The Wilsons' counsel had ample opportunity, which he utilized, to cross-examine Doctors Goddard and Lamm regarding the data and methods used to prepare the sales charts. This questioning was sufficient to bring to the jury's attention any alleged inadequacies of the information contained in the charts.6
III.
18
Finally we consider the Wilsons' contention that the district court erred in denying their motion for judgment notwithstanding the verdict or a new trial.
19
Judgment n.o.v. is warranted when the evidence is insufficient to support the verdict, that is, when "the evidence points but one way and is susceptible to no reasonable inferences sustaining the position of the party against whom the motion is made." Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988). A new trial should be granted if the verdict is " 'clearly, decidedly, or overwhelmingly against the weight of the evidence.' " Farmers Ins. Co. v. Hubbard, 869 F.2d 565, 571 (10th Cir.1989) (quoting Champion Home Builders v. Shumate, 388 F.2d 806, 808 (10th Cir.1967)). We will not reverse the district court's denial of a motion for a new trial based upon the weight of the evidence unless there was a "manifest abuse of discretion." Id.
20
Our review of the evidence leads to the conclusion that the district court's ruling on the Wilsons' motion was proper. Merrell Dow presented expert testimony, which was not contradicted by the Wilsons' experts, that of the approximately forty epidemiological studies of Bendectin, none has shown a statistically significant association between ingestion of the drug and incidence of birth defects generally or limb defects in particular. This lack of epidemiological proof for the Wilsons' claims is particularly significant in light of recent decisions of federal courts of appeals granting judgment n.o.v. for Merrell Dow based upon the absence of epidemiological evidence showing a causal relationship between Bendectin use and birth defects. See Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307 (5th Cir.), modified, 884 F.2d 166 (5th Cir.), reh'g en banc denied, 884 F.2d 167 (5th Cir.1989); Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989); Lynch v. Merrell-National Laboratories, 830 F.2d 1190 (1st Cir 1987). Other evidence supporting the verdict included (1) testimony of Doctors Goddard and Lamm that from the 1960s through the early 1980s Bendectin new therapy starts and overall sales gradually increased and then decreased to zero while the rate of birth defects remained constant; (2) testimony that animal studies of Bendectin, taken as a whole, indicated that the drug does not cause birth defects; and (3) testimony that a 1980 expert advisory committee to the FDA found no link between Bendectin use and birth defects.
21
Although the Wilsons called several experts who testified in support of their claims, Merrell Dow presented at least sufficient expert testimony to create a conflict in the evidence, and perhaps even enough to sustain a directed verdict under the reasoning of Brock, Richardson and Lynch. When the evidence is in conflict, the jury alone has the power to weigh that evidence and assess the credibility of witnesses, and we will not retry the facts. See Rogers v. Hyatt, 697 F.2d 899, 905 (10th Cir.1983).
22
Thus, we conclude that there was sufficient evidence for the jury to return a verdict in Merrell Dow's favor and that it was within the district court's discretion to determine that the weight of the evidence supported the verdict as well.
IV.
23
We find no error in the district court's decisions to decline to give a missing witness instruction, to allow Merrell Dow's counsel to comment that the missing witness was equally available to testify for the Wilsons, to admit Merrell Dow's sales charts into evidence, and to deny the Wilsons' motion for judgment n.o.v. or a new trial. Accordingly, the district court's judgment entered on the jury verdict in favor of Merrell Dow is affirmed.
*
The Honorable J. Smith Henley, Senior United States Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation
1
Over the years the entity now known as Merrell Dow Pharmaceuticals Inc. has been known as Richardson-Merrell, Inc., Merrell National-Laboratories and The Wm. S. Merrell Company. Merrell Dow is a wholly owned subsidiary of The Dow Chemical Company
2
The Honorable James O. Ellison, United States District Judge, Northern District of Oklahoma
3
For the purpose of our analysis, we assume that the missing witness inference may be made in a diversity suit in federal district court, provided that the foregoing four criteria are satisfied. Thus, we do not address the questions whether state or federal law governs the giving of the missing witness instruction in a diversity suit and whether federal law permits the missing witness inference to be made. See generally Jones v. Otis Elevator Co., 861 F.2d 655, 659 n. 4 (11th Cir.1988) (questioning the application of a missing witness charge under the Federal Rules of Evidence)
4
In their appellate brief, the Wilsons' attorneys listed Exhibits 2257-A, 2258-A, 2258-E and 2258-F as the sales charts that were admitted over their objections at trial. Subsequently, an addendum to the Wilsons' brief was submitted which stated that Exhibits 2289 and 2299 were erroneously cited as Exhibits 2257-A and 2258-A in the brief. Merrell Dow's attorneys then made a motion to strike the Wilsons' addendum on the grounds that neither Exhibit 2289 nor Exhibit 2299 was offered or admitted at trial. After reviewing the trial transcript, we agree that Exhibits 2289 and 2299 were not admitted at trial, and therefore we grant Merrell Dow's motion to strike the addendum. We also observe that although Richard Smith, one of Merrell Dow's witnesses, referred to Exhibits 2258-E and 2258-F during his testimony, neither of those exhibits was offered into evidence. We assume that the Wilsons' attorneys meant to list Exhibits 2288 and 2280 as being the objectionable charts. Merrell Dow's counsel pointed out that Exhibits 2288 and 2280 contain information that is similar to that in Exhibits 2289 and 2299, and expressly waived any objection to this court's consideration of the admissibility of Exhibits 2288 and 2280. We thus confine our discussion to the admissibility of Exhibits 2288 and 2280
5
Although the sales charts were admissible under Rule 703 for the limited purpose of providing the basis for expert testimony, the district court did not err by not giving a jury instruction noting the limited admissibility of the charts. Under Federal Rule of Evidence 105, the opponent of the evidence has the burden of requesting that a limiting instruction be given. See, e.g., United States v. Regner, 677 F.2d 754, 757 (9th Cir.), cert. denied, 459 U.S. 911, 103 S.Ct. 220, 74 L.Ed.2d 175 (1982). The Wilsons did not request such an instruction
6
Because we hold that the sales charts were admissible as the basis of expert testimony under Rule 703, we need not decide whether the charts were admissible under any of the hearsay exceptions contained in Federal Rule of Evidence 803. We do note, however, that the information used to create the graphs on the charts came from sources that are recognized as trustworthy under Rule 803. Dr. Goddard determined the number of Bendectin tablets distributed using FDA data that appears to be admissible under the public records exception of Rule 803(8). Doctors Goddard and Lamm calculated the rate of birth defects using information from the CDC, whose data has been ruled to be admissible under Rule 803(8) as well. See, e.g., Ellis v. International Playtex, Inc., 745 F.2d 292, 300-04 (4th Cir.1984); Kehm v. Proctor & Gamble Mfg. Co., 724 F.2d 613, 618-20 (8th Cir.1983). Also, the number of new therapy starts, utilized by Dr. Lamm and compiled by Mr. Smith from independent market research firms, appears to be admissible under the market reports exception of Rule 803(17)
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30 N.J. 303 (1959)
153 A.2d 1
MARTIN SNYDER, PLAINTIFF-RESPONDENT,
v.
I. JAY REALTY CO., AND ARNOLD SACHS, ISIDORE SACHS AND J. MILTON SACHS, PARTNERS TRADING AS NEW JERSEY KNITWEAR CO., AND NEW JERSEY KNITWEAR COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued May 18, 1959.
Decided June 30, 1959.
*307 Mr. James P. Beggans argued the cause for the defendant-appellant I. Jay Realty Company (Messrs. Beggans and Keale, attorneys; Mr. Robert E. Tarlton on the brief).
Mr. George W. Connell argued the cause for the defendants-appellants Arnold Sachs, Isidore Sachs and J. Milton Sachs, partners trading as New Jersey Knitwear Co., and New Jersey Knitwear Company, a corporation (Messrs. Shaw, Pindar, McElroy, Connell & Foley, attorneys; Mr. William T. McElroy on the brief).
Mr. Bernard Chazen argued the cause for the plaintiff-respondent (Mr. Theodore Schwartz, attorney; Mr. Nathan Baker, of counsel; Mr. Bernard Chazen on the brief).
The opinion of the court was delivered by PROCTOR, J.
The plaintiff was injured as the result of a fall on a platform at the rear of a three-story factory building in Newark, owned by the defendant, I. Jay Realty Company. The defendants, Arnold Sachs, Isidore Sachs and J. Milton Sachs, partners trading as the New Jersey Knitwear Co., were engaged in the manufacture of sweaters. They occupied the third floor of the building and were one of several tenants. The New Jersey Knitwear Company, a corporate entity apart from the Knitwear partnership, was also named as a party defendant. The individual partners, the partnership entity and the corporation were considered by the parties as a unit and will hereinafter be referred to as the tenant.
Plaintiff brought an action against the owner and the tenant to recover damages for the injuries he sustained. When the case was first tried the trial court entered a judgment of involuntary dismissal as to both defendants on plaintiff's opening statement to the jury. The Appellate *308 Division reversed and ordered a new trial. 46 N.J. Super. 323 (1957). This court denied certification. 25 N.J. 316 (1957). At the retrial, upon the conclusion of the entire case the trial court entered a judgment of dismissal in favor of both defendants on the ground that the plaintiff was a trespasser at the time he sustained his injury and that there was no breach of any duty owed to him by either of the defendants. It further held as a matter of law that the plaintiff was contributorily negligent and that he had assumed the risk of any dangerous condition which may have existed. The Appellate Division reversed as to both defendants, holding that all issues should have been submitted to the jury. 53 N.J. Super. 336 (1958). We granted the defendants' petitions for certification. 29 N.J. 355 (1959).
Plaintiff was a friend of Frank Selleck, a truck driver employed by the defendant tenant. Selleck had been so employed for about eight or nine months before the accident. On April 6, 1953 the plaintiff met Selleck in New York City where the latter had completed his deliveries. Selleck suggested that the plaintiff ride back to the factory with him and that they would then return to New York on a personal matter. It was necessary for Selleck to go to the factory in order to turn in his receipts for the day and pick up some merchandise for delivery to Stirling, New Jersey, before he finished work. Plaintiff accompanied him. When they arrived at the factory premises at about 8 P.M. it was getting dark. Selleck parked his truck at the loading platform at the rear of the building. The two men then walked to the front and ascended the common stairway to the third floor occupied by the defendant tenant. This was the first time that the plaintiff had visited the tenant's place of business. Selleck introduced the plaintiff to several employees who were working that night. Morgan Batten was the tenant's acting foreman and "was in charge of the floor" that evening. While Selleck and Batten were loading some cartons on to an elevator at the rear of the building, plaintiff "browsed around," watched the other employees and had a *309 bottle of soda. None of the partners of the tenant was present. After about 20 minutes Selleck called the plaintiff and said, "We're ready to leave." Batten, Selleck and the plaintiff then entered the elevator and descended to the loading platform on the ground floor. It was now dark outside, and although there was a light in the elevator, it illuminated only the immediate area and the remainder of the L-shaped platform was "pitch black." Batten picked up a carton and started to walk down the platform toward the truck. He was followed by Selleck who also carried a carton. The plaintiff then picked up a carton and followed Selleck. The plaintiff testified:
"I followed his [Selleck's] figure and that was the way I had my direction, by following the figure. I had no idea of what was happening whatsoever.
Q. Then, did they make any turns, from what you observed? A. They may have. The way they walked, I walked. If they walked straight, I walked straight. If they made a turn, I made a turn.
Q. Then, what happened to you? A. Then I fell, I hadn't taken more than two steps.
Q. Then, what happened when you fell, describe it? A. I fell into this recess."
The recess into which plaintiff fell is about 40 inches deep and is formed by an open space between the platform and the building. It is at a right angle to the passage leading from the elevator and begins at a point five or six feet from the elevator door. There was no guard rail around the recess, and although there was provision for a light on the wall adjacent to it, the light was not in working order on the night of the accident, nor at any time during Selleck's employment. On a night about a month before the accident Selleck had fallen into the recess and had requested one of his employers, Arnold Sachs, to have the light repaired. At that time Sachs called the owner and complained about the absence of a light but apparently nothing was done.
No one was produced at the trial to testify for the defendant owner. The only witness called for the defendant tenant *310 was J. Milton Sachs, one of the partners. He testified that he had never authorized any of the employees to bring guests into the premises and that he had no knowledge that any of the employees had ever done so. He specifically denied any knowledge of the plaintiff's presence on the premises that evening. On cross-examination he testified that the factory was in operation day and night, and that the elevator was used or could be used "twenty-four hours a day" by all of the tenants in the building.
In the course of the direct examination of the witness Selleck, he was asked if he had ever brought any one else on the premises. The defendant tenant's objection to this question was sustained on the ground that any course of conduct on Selleck's part would not be binding upon the tenant. The witness had answered in the affirmative before the objection was interposed, and at the oral argument in this court plaintiff's counsel informed us that had he been permitted to pursue the matter Selleck would have testified that his wife and daughter had visited him at defendant tenant's premises.
The Appellate Division reversed the judgment of dismissal, holding that it was open to the jury to find that the plaintiff, a guest of an employee of defendant tenant, was a licensee of the tenant and as such was an invitee of the owner; that the owner owed the plaintiff a duty of reasonable care to maintain the passageway in a reasonably safe condition. As to the tenant the court held that the knowledge of plaintiff's presence by the tenant's foreman, Batten, was imputed to his employer, the tenant, and that if the tenant had the ability to foresee any unreasonable risk of harm to licensees "resulting from the lessor's failure to maintain the common approaches or exit-ways * * * the tenant, as any other possessor of land, must exercise reasonable care to make the condition reasonably safe or to warn the licensee of the risk." 53 N.J. Super. at page 344. It further held that the issues of contributory negligence and assumption of risk should have been submitted to the jury.
*311 On this appeal the owner argues that the plaintiff's legal status on its premises was that of a trespasser and that its only duty to him was to refrain from acts willfully injurious; that it was under no duty to light the premises; that there was no evidence of defective construction or maintenance of the platform and that the plaintiff was aware of the condition. The tenant argues there was no evidence that the plaintiff was its licensee or that it breached any duty owing to him. Both the owner and the tenant urge that the plaintiff was "guilty of contributory negligence and assumption of risk as a matter of law." The plaintiff urges that the defendants' duty to him was to exercise "reasonable care under the circumstances." He contends this duty should be determined without regard to the "unrelated criteria dealing with the status of one who comes on the premises," citing 2 Harper and James, Law of Torts, § 27.1, p. 1432 (1956). Cf. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), involving admiralty law.
In this state we have consistently adhered to the historically based view of the common law that the duty owed by an occupier of land to third persons coming thereon is determined according to the status of such third person, i.e., invitee, licensee or trespasser. Indeed, the ascertainment of that status is an essential preliminary to the application of the particular standard of care to be exercised by the land occupier. See Taneian v. Meghrigian, 15 N.J. 267, 273-274 (1954); Imre v. Riegel Paper Corp., 24 N.J. 438, 443-446 (1957); Berger v. Shapiro, 30 N.J. 89 (1959); see also Restatement, Torts §§ 329 et seq. These common law classifications are sufficiently flexible to fulfill the purposes of our legal system in serving the needs of present day society. For example, compare Fleckenstein v. Great Atl. & Pac. Tea Co., 91 N.J.L. 145 (E. & A. 1917) with Murphy v. Kelly, 15 N.J. 608 (1954); see Taylor v. N.J. Highway Authority, 22 N.J. 454, 464 (1956). We believe that adherence to the traditional classifications is *312 desirable in that it lends a reasonable degree of predictability to this area of the law. These classifications also aid in the proper distribution of trial functions between judge and jury, wherein the latter determines only disputed questions of fact. We therefore proceed to the initial inquiry into the plaintiff's status as to each defendant at the time and place he sustained his injury.
The distinction between invitees, licensees and trespassers was stated in Lordi v. Spiotta, 133 N.J.L. 581, 584 (Sup. Ct. 1946) thus: "The first come by invitation, express or implied; the second are those who are not invited but whose presence is suffered; the third are neither invited nor suffered." See also Restatement, Torts §§ 329 et seq. Accordingly, one may enter the premises of another without invitation, express or implied, and be regarded as a licensee rather than a trespasser, if his presence was either expressly or impliedly permitted by the possessor of the premises.
Prevailing customs often determine whether a possessor of land is willing to have a third person come thereon. They may be such that it is entirely reasonable for one to assume that his presence will be tolerated unless he is told otherwise. See Restatement, supra, § 330, comment (d). Though the defendant tenant did not expressly authorize Selleck or any other employee to have guests at the factory, there was no evidence that employees were forbidden to have their guests on the premises. No signs were posted informing such visitors of an unwillingness to admit them. Moreover, Batten, the tenant's foreman who was in charge of the floor that evening, was the person in a position to execute any policy his employer may have had toward excluding such persons. He took no action that would indicate to the plaintiff or Selleck any disapproval of the plaintiff's presence in the factory.
We believe that visiting an employee at his place of employment, where a hazardous activity is not being conducted in the area visited, does not go beyond generally *313 accepted modes of behavior or custom, and in the absence of any prior expression of disapproval by the employer the visitor is not a trespasser but one whose presence is suffered and therefore is lawfully upon the premises. Such person falls within the class termed by the Restatement of Torts as a gratuitous licensee. §§ 330, 331. See Menard v. Cashman, 94 N.H. 428, 55 A.2d 156 (Sup. Ct. 1947); see also Annotation, 89 A.L.R. 757 (1934).
It is settled that where an owner rents out portions of a building to several tenants, retaining in his own control the passageways for the common use of the tenants and those having occasion to visit them, he is under a duty to exercise reasonable care to have the passageways reasonably safe for such use. Shemin v. Steinberg, 117 N.J.L. 458 (Sup. Ct. 1937); Roth v. Protos, 120 N.J.L. 502 (Sup. Ct. 1938); Restatement, Torts, § 360; Annotation, "Liability of landlord for personal injuries due to defective halls, stairways, and the like for use of different tenants," 97 A.L.R. 220 (1935).
In the Roth case, supra, it was said:
"Defendant [landlord] had control and possession of the stairway in question. Entirely apart from any contractual obligation, this fact imposed upon her the duty of exercising reasonable care to maintain the stairway reasonably fit for use by occupants of the premises and by others having lawful occasion to be present." 120 N.J.L. at page 504.
See Taylor v. N.J. Highway Authority, supra. In Taneian v. Meghrigian, supra, this court said:
"[T]hose who enter in the right of the tenant, even though under his mere license, make a permissible use of the premises for which the common ways and facilities are provided. * * * the landlord's obligation `is that reasonable care and skill have been exercised to render the premises reasonably fit for the uses which he has invited others to make of them.'" 15 N.J. at pages 277-278.
Thus, the court in Taneian concluded "that one may be an invitee of the landlord and a mere licensee of the tenant; *314 the landlord may be liable as such to a gratuitous licensee of the tenant though the tenant would be under no liability." Dean Prosser has suggested that the explanation for such a conclusion is that the landlord has held out the common passageways of the premises as open and provided for the use of any one coming for all usual and customary visits to his tenants and to that extent has made such ways a public place. Prosser, "Business Visitors and Invitees," 26 Minn. L. Rev. 573, 601 (1942). And as the Restatement of Torts indicates, the lessor "has a business interest in the use of these facilities by any person whom his lessee may choose to admit, irrespective of whether the visit of such a person is for his own or the lessee's business purpose or whether he comes as a mere social guest or other gratuitous licensee of the tenant." § 332, comment (h). On the present record the plaintiff was a licensee of the tenant and therefore an invitee of the owner in the use of the common passageway. Unless on the retrial there is evidence of prohibition, the court should charge that plaintiff was such a licensee and invitee.
It was for the jury to determine whether the plaintiff was within that class of persons whose presence on the platform should have been reasonably anticipated by the owner. Prosser, Torts (2d ed. 1955), 471-73. On the one hand, the jury could find that the exit by way of the elevator and the passageway, even though they were located in the rear of the building, may have been a convenient means of egress from the upper floors and therefore a route which the owner might reasonably anticipate would be used by persons such as a guest of a tenant's employee when leaving the building. Cf. Hussey v. Long Dock Railroad Co., 100 N.J.L. 380 (E. & A. 1924). The jury might consider in this respect the absence of a sign limiting the use of this area to employees and business visitors of the tenants in the building. On the other hand, the jury could find that the location of the elevator and platform, and the purpose for which they were designed, were such as not to include *315 the reception of persons for other than business reasons, and therefore the presence of a person in plaintiff's class would not be reasonably anticipated. Cf. Restatement, Torts, § 360, comment (d). The jury might conclude that the common stairway in the front of the building was the only proper means of egress which the owner could reasonably anticipate would be used by persons in the plaintiff's class. The resolution of this issue requires a weighing of conflicting inferences which may be drawn from the evidence and as such falls within the province of the jury. DeRienzo v. Morristown Airport Corp., 28 N.J. 231 (1958).
Defendant owner further contends that there is no evidence of negligence on its part in that there was no showing of a deviation from accepted standards in the construction of the platform. It contends that the only proof of its negligence was the failure to provide a light and that darkness itself is not a dangerous condition. It relies on Triggiani v. Olive Oil Soap Co., 1 N.J. Super. 55 (App. Div. 1948); see related case in 12 N.J. Super. 227 (App. Div. 1951). In that case an employee of a tenant was injured by a fall on an unlighted common stairway in a factory building. The stairway itself was not deemed hazardous. In absolving the landlord from liability the court held that in the absence of a defect in the stairway itself the landlord was under no duty to provide a light unless he had assumed the obligation or was required to do so by statute. In the present case, however, it was open to the jury to find that there was a structural situation which presented an exceptionally hazardous condition to one who could not observe it. This is wholly apart from any question of departure from standards of construction. The statement in Hedges v. Housing Authority of Atlantic City, 21 N.J. Super. 167, 170 (App. Div. 1952), is apropos:
"[I]f the passageway is so constructed or maintained as to be dangerous, and the landlord is chargeable with notice of the condition, he must provide a light so that the danger may be readily seen, or he must provide another safeguard. Higgins v. County *316 Seat B. & L. Ass'n, 123 N.J.L. 116 (Sup. Ct. 1939). Perhaps it were better stated that a landlord who negligently fails to provide a passageway that is safe in the dark, may absolve himself from liability by lighting the passageway so that its use becomes safe."
In the present case, in view of the location of the recess in its relation to the elevator and platform, and the absence of any guard rail around the recess, we believe that the jury could conclude that the defendant owner was negligent in failing to provide a light at the scene after it had notice of its absence.
The evidence does not support a conclusion that as a matter of law the plaintiff was guilty of contributory negligence or that he assumed the risk or that he disregarded an obvious peril. The plaintiff was following two men who were familiar with the platform. He was not venturing on his own. The question whether in these circumstances a reasonably prudent person would have followed them from the elevator is plainly one for the jury. See Benton v. Y.M.C.A., 27 N.J. 67, 71 (1958).
We conclude that the Appellate Division was correct in holding that plaintiff's claim against the defendant owner should have been submitted to the jury.
A different problem is presented with respect to plaintiff's claim against the tenant. We have concluded above that on the present record the plaintiff as a guest of Selleck was a licensee on the tenant's premises. As such it has been held that the only duty which the tenant owed him was to abstain from acts willfully injurious. Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N.J.L. 378 (Sup. Ct. 1898); O'Neill v. Gem Building and Loan Ass'n, 9 N.J. Misc. 1084 (Sup. Ct. 1931); Willins v. Ludwig, 136 N.J.L. 208 (E. & A. 1947). It is not suggested that the tenant was guilty of willful conduct. A recognized exception to the general rule is that where there is a known dangerous condition on the premises which the occupier could reasonably anticipate that his licensee would not observe and avoid, he must either give warning or make the condition *317 reasonably safe. See Berger v. Shapiro, supra. It is undisputed that the alleged dangerous condition was in a common passageway under the exclusive control of the owner. The tenant had no authority to remedy the condition and consequently was under no duty to do so. Prosser, Torts, 471. As to that part of the exception requiring a warning to be given, we think that where a building has been rented to several tenants, and the landlord has retained control over the common passageways, there is no duty upon a tenant to warn a guest of his employee of any condition that might exist beyond that part of the premises occupied by the tenant and over which he has no control. See Sydor v. Warpack, 332 Ill. App. 138, 73 N.E.2d 924 (App. Ct. 1947). The practicability of this limitation can readily be seen when we consider, for example, the situation in a large office building. To impose liability on a tenant for injuries to social guests of his secretary or other employee because the tenant has failed to warn them of a hole in the floor of the lobby seems to us to be an unreasonable extension of the exception to the general rule limiting the tenant's duty of care. Comment (a), § 360 of the Restatement of Torts, indicates that there may be certain circumstances wherein a tenant might become subject to liability to his gratuitous licensees if he fails to warn them of the danger involved in using the common approaches. However, no specific example is given and we have been unable to find any authority imposing such a duty upon a tenant under the facts here presented. The cases relied upon by the Appellate Division in the first opinion in this action, 46 N.J. Super. at page 329, namely, Bass v. Hunt, 151 Kan. 740, 100 P.2d, 696 (Sup. Ct. 1940) and Cannon v. S.S. Kresge Co., 233 Mo. App. 173, 116 S.W.2d 559 (Ct. App. 1938), are factually inappropriate. They deal with injuries sustained by business invitees of the tenants on parts of the premises over which the tenants exercised a measure of control.
Moreover, the partners of the tenant were not actually present and had no personal knowledge of plaintiff's intended *318 visit. The plaintiff was not a customer or a business invitee of theirs and there was no evidence that at the time of the occurrence either Selleck or Batten was performing any service for the tenant in relation to the plaintiff. See Restatement, Agency, § 242; Hall v. Passaic Water Co., 83 N.J.L. 771, 775 (E. & A. 1912); Lippman v. Ostrum, 22 N.J. 14 (1956). The plaintiff's testimony that he was carrying a carton does not alter this relationship. Neither Batten nor Selleck asked him to help them. Indeep, Batten was unaware of his attempted assistance.
It may well be that the trial court erred in not permitting Selleck upon defendant tenant's objection to testify that on prior occasions his wife and daughter had visited him at defendant tenant's factory. The purpose of this testimony was to indicate a course of conduct that would tend to show that plaintiff was a licensee of the tenant. However, the error was harmless in light of our conclusion that even though the plaintiff was the tenant's licensee, there was no breach of any duty owed to him by the tenant.
The judgment of the Appellate Division in plaintiff's action against I. Jay Realty Company is affirmed, and its judgment in plaintiff's action against Aaron Sachs, Isidore Sachs, J. Milton Sachs, partners trading as the New Jersey Knitwear Co., and the New Jersey Knitwear Company, a corporation, is reversed and the judgment of the trial court in favor of these defendants is reinstated.
BURLING, J. (dissenting in A-120 and concurring in the result in A-121).
I vote to reverse the judgment of the Superior Court, Appellate Division, both as to the defendant owner, I. Jay Realty Company (A-120), and as to the defendants tenants, Arnold Sachs, Isidore Sachs and J. Milton Sachs, partners trading as the New Jersey Knitwear Co., and New Jersey Knitwear Co., a corporation of New Jersey (A-121).
With respect to the appeal of the owner I do not find any evidence in the record from which an inference might be *319 drawn that plaintiff was upon the premises with the expressed or implied acquiescence of the tenants. In the absence of specific proof upon the question I would not assume a general custom that guests of employees are permitted to visit with them at the employer's establishment at least not in a manufacturing plant such as is involved in the instant case. The foregoing leads to the conclusion that plaintiff was not a licensee of the tenants but a trespasser. And if that be so, then the plaintiff was not owed the duty of reasonable care and the owner was entitled to a judgment of dismissal.
With respect to the appeal of the tenants, as I have indicated, plaintiff's status was that of a trespasser and not a licensee. In this case, a mature person was involved and he was not owed the duty of having dangerous conditions made reasonably safe or being warned of such conditions.
In my analysis the problem of what duties are owed to a licensee of a tenant for conditions existent in common passageways which are controlled by the owner is not reached.
But the matter is one of importance and I therefore add that while I do not accept the majority's initial premise that plaintiff was a licensee of the tenants, I am in accord with the views expressed in the opinion as to the duties of the tenants under the circumstances of this case if that premise be adopted.
JACOBS and SCHETTINO, JJ. (dissenting in part).
It seems to us that the circumstances outlined here by Justice PROCTOR and in the Appellate Division by Judge Freund (see 53 N.J. Super. 336, 340-342 (1958)) presented jury issues not only as to the landlord's responsibility because of the negligent failure of the landlord or its agents to light the rear means of egress but also as to the tenant's responsibility because of the negligent failure of the tenant or its agents to warn the plaintiff, who was lawfully on its premises and was properly using the rear means of egress along with the tenant's acting foreman and its employee, that there was *320 (as the majority acknowledges a jury could readily find) "a structural situation which presented an exceptionally hazardous condition to one who could not observe it." See Restatement, Torts § 360, comment (a) (1934); Clapp, S.J.A.D., in Snyder v. I. Jay Realty Co., 46 N.J. Super. 323, 328-330 (App. Div. 1957). Accordingly, we would, as did the Appellate Division, award a new trial to the plaintiff against both the landlord and the tenant.
The I. Jay Realty Co.:
For affirmance Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO 6.
For reversal Justice BURLING 1.
The Aaron Sachs case:
BURLING, J., concurring in result.
For reversal Chief Justice WEINTRAUB, and Justices BURLING, FRANCIS, PROCTOR and HALL 5.
For affirmance Justices JACOBS and SCHETTINO 2.
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846 S.W.2d 506 (1993)
John DOWNEN, Appellant,
v.
TEXAS GULF SHRIMP COMPANY and the M/V "ARSCO 8", Appellees.
No. 13-91-593-CV.
Court of Appeals of Texas, Corpus Christi.
January 7, 1993.
Rehearing Overruled February 11, 1993.
*507 Richard L. Eddington, Corpus Christi, for appellant.
G. Don Schauer, Pipiton, Schauer & Simank, Corpus Christi, for appellees.
Before SEERDEN, KENNEDY, and FEDERICO G. HINOJOSA, Jr., JJ.
OPINION
SEERDEN, Justice.
This is a case for personal injuries brought by John Downen, appellant, against Texas Gulf Shrimp Company and the M/V ARSCO 8, appellees. Downen alleged, pursuant to the Jones Act and general maritime law, that appellees were negligent and, alternatively, that the shrimping vessel, ARSCO 8, was unseaworthy. The jury failed to find appellees negligent and failed to find that the vessel was unseaworthy. The trial court entered a take-nothing judgment based upon the jury's findings. Downen raises five points of error for our review complaining about the sufficiency of the evidence to sustain the judgment and that the trial court improperly admitted evidence which probably resulted in an improper judgment. We affirm the trial court's judgment.
Downen was employed as a seaman aboard Texas Gulf Shrimp's vessel the ASCO 8. The vessel ran aground at night in a heavy fog as it was making its way back to port. After the vessel ran aground, Downen allegedly was injured when a wave came over the side of the vessel and threw *508 him against some railing as he was attempting to bring in the outriggers.
Downen's contention on appeal is that it was impossible for the ARSCO 8 to run aground in the absence of both negligence and unseaworthiness. Downen asserts that either negligence or unseaworthiness caused the ship to run aground, an event without which he would not have sustained injuries. By his first three points of error, Downen challenges the legal and factual sufficiency of the evidence supporting the jury's verdict. By point one, Downen contends that no evidence exists or, alternatively, that the evidence is factually insufficient to support the jury's finding that negligence was not a producing cause of his damages. By point two, Downen contends that there is no evidence or, alternatively, that the evidence is factually insufficient to support the jury's finding that the vessel was not unseaworthy.
Downen begins his argument addressing the sufficiency of the evidence by directing our attention to Bunge Corp. v. M/V Furness Bridge, in which the court noted that it is well established that there is a presumption of fault against a moving vessel that strikes a stationary object, such as a dock or navigational aid. Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 794 (5th Cir. 1977). Texas Gulf Shrimp responds that the application of such presumption is inapplicable in this case because Downen failed to assert the presumption before the trial court. Texas Gulf Shrimp contends that Downen failed to object to either the instructions given the jury addressing the burden of proof or the jury questions addressing liability, and thus, he cannot complain about the lack of a presumption on appeal.
We note Downen's rebuttal during oral argument before us. During that portion of his argument, he 1) conceded that the jury questions were properly asked, but that he probably should have asked for an instruction about the presumption, 2) asserted that the burden of proof on the case was properly his, and 3) explained that he was not asserting by his appeal that the trial court erred in not giving him an instruction about a presumption.
In reviewing the record, we agree with Texas Gulf Shrimp that Downen did not object to either the instructions given the jury addressing the burden of proof or the court's questions to the jury addressing liability. When a party does not submit to the trial court requested definitions and instructions in substantially correct form, the party waives error. National Fire Ins. Co. v. Valero Energy Corp., Ill S.W.2d 501, 507-08 (Tex.App.Corpus Christi 1989, writ denied); Tex.R.Civ.P. 274. Sometimes a request is not sufficient and may not even be appropriate; instead counsel must object. State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240-41 (Tex. 1992) (on motion for rehearing). The objection must be specific enough to call the court's attention to the asserted error in the charge. Id.
At oral argument, Downen explained that his complaint is that there is no evidence or, alternatively, that the evidence is factually insufficient to support both findings by the jury; that a vessel's running aground had to be caused by either negligence or the vessel's unseaworthiness. Thus, we proceed to address Downen's sufficiency challenges.
When we review a point of error complaining that a jury finding is against the great weight and preponderance of the evidence, we examine the record to determine if there is some evidence to support the finding and, if so, then determine whether the finding was either so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust or that the great preponderance of the evidence supports its nonexistence. Reviea v. Marine Drilling Co., 800 S.W.2d 252, 254 (Tex.App.Corpus Christi 1990, writ denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973)). Since only the trier of fact determines the credibility of witnesses and the weight, if any, to give their testimony, and since only the trier of *509 fact resolves conflicts in the evidence, we may not disregard a finding, make a contrary finding, nor substitute our opinion for that of the trier of fact merely because we might have reached a different determination based upon the same evidence. See Lofton v. Texas Brine Corp., Ill S.W.2d 384, 387 (Tex.1989). This standard of review not only applies to a jury's affirmative finding but also to a jury's failure to find a fact. Reviea, 800 S.W.2d at 254 (citing Ames v. Ames, 776 S.W.2d 154, 158 (Tex. 1989), cert, denied, 494 U.S. 1080, 110 S. Ct. 1809, 108 L. Ed. 2d 939 (1990); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988)). Thus, we may not reverse a jury's failure to find a fact simply because we conclude that the evidence would preponderate toward an affirmative jury finding. Reviea, 800 S.W.2d at 254 (citing Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988)). We may reverse a jury's negative answer to a question only if the great weight of the evidence would dictate an affirmative finding. Id.
Under the Jones Act, a seaman may bring a negligence action against his employer. See 46 U.S.C.App. 688 (1982); Reviea, 800 S.W.2d at 254. Recovery is allowed once the seaman establishes that he has been injured as the result of his employer's negligence. Id. The Jones Act places a high standard of care upon the employer; thus, the seaman has only to prove the employer's slight negligence. Id. Though the jury in the case before us was instructed about the Jones Act and the elements Downen was required to prove, "negligence" was defined in the court's charge as the failure to use reasonable care. The instruction continued by defining "reasonable care" as that degree of care which a reasonably careful person would use under like circumstances. Therefore, the Jones Act's high standard of care, requiring a showing of the employer's failure to exercise great care, was not submitted to the jury. See Id. at 254, n. 3.
Downen, on appeal, is complaining about the jury's failure to find slight negligence on the part of Gulf Shrimp. No objection was raised in this regard before the trial court, and thus, on appeal, Downen has waived his right to recover for any slight negligence. See Tex.R.App.P. 52(a); Tex.R.Civ.P. 274, 279.
A vessel owner must provide seamen with a "seaworthy" vessel upon which to work. Reviea, 800 S.W.2d at 255. Seaworthiness within the context of personal injury litigation refers to a vessel owner's nondelegable duty to provide a ship which is reasonably fit for its intended use. Id. If an owner does not provide a seaworthy vessel, then no amount of due care or prudence excuses him, whether he knew or could have known of the deficiency. Negligence is not required for a seaman to recover on an unseaworthiness claim because the claim is not based upon fault. Id. The jury was given the standard maritime instruction on "unseaworthiness."[1] There were no objections raised nor were there any requests for additional instructions.
In the case before us, Downen alleged that the Captain acted negligently, and that if the equipment had been working properly and monitored properly by the Captain, the vessel should never have run aground. The jury was asked by broadly *510 formed question two, "do you find that the Defendant, Texas Gulf Shrimp Co., was negligent on the occasion in question, which negligence was a legal cause of Plaintiff's injuries, if any." The jury answered "no." Additionally, the jury was asked by broadly formed question three, "do you find that the ARSCO 8 was unseaworthy on the occasion in question, which unseaworthiness was a proximate cause of the Plaintiff's injuries, if any." The jury answered "no."
The evidence at trial showed that the ARSCO 8 lost its anchor, the weather was extremely foggy, and Captain Buchanan decided to return to port. Richard Ellis, the owner of Gulf Shrimp, was asked if, in his opinion, it would be negligent for someone to run a vessel in the fog. He answered that when the anchor line was cut and the boat was adrift, that the Captain would have no option but to return the vessel to port. Captain Buchanan was responsible for the decisions on the vessel while at sea, and it was his decision to attempt to bring the vessel back to port in the fog. Ellis explained that while in the fog, the vessel should be run as slowly as possible and that it would be negligent to run it much higher than an idle. Ellis was asked about a vessel's unseaworthiness. He stated that a boat that can make it out and back safely is seaworthy. In his opinion, a seaworthy vessel could operate without a radar, depth finder, or LORAN. The lack of these equipment items would not render a vessel unseaworthy in Ellis' opinion.
Excerpts of Captain Buchanan's deposition were entered at trial. By deposition, Buchanan explained how the ARSCO 8 ran aground. He explained that as they ran offshore he began having problems with one of the two LORANS. He stated that it was very foggy and that the radar did not work. He dropped the anchor and tried to fix the equipment but "it just would not work." When he went to pick up the anchor, it was dragged into a pipeline or some type of bottom obstruction resulting in his losing the anchor. Since he had lost the ability to "anchor up," the vessel was adrift. He explained that the weather was rough and he "was tired of fighting all the problems on the boat," so he decided he would be able to bring the vessel safely into port. The ARSCO 8 then ran aground. Buchanan explained that he did not see Downen get injured.
Downen testified at trial and was asked if, in his opinion, Captain Buchanan did anything wrong and if the Captain had caused Downen's injuries in any way. He responded that he did not think so. At trial, Downen explained that after the anchor line broke, the Captain started idling the vessel back to shore. Downen explained that the "[Captain] was idling in, fairly slow. It was foggy, so we didn't take no chances." Downen knew that one of the LORANS was broken but he thought that the other one was working. Downen stated that he did not think that the radar nor the depth finder worked. Downen was asleep when the vessel ran aground. He learned that they had run aground when the Captain woke him. Downen went to the wheel house and asked the Captain if he wanted him to do anything. Downen explained that the weather was very rough and the vessel was being slammed around. As Downen was "sliding this rig in, sea comes over the back deck, [and] slams me up against the door racks." Downen explained that he was hurt when "[his] back hit the two-by-sixes that the doors set on, and [his] arm hit the pin rail above the door racks, above the planks." Downen continued to work, sliding the rigging in to the side of the boat. "That was as much as we needed to do right then. That's to keep from losing the outriggers, possibly capsizing the boat." The crew worked for twelve to fourteen hours trying to get off the sand bar. Finally, a small boat pulled them off the sand bar and they ran to the dock. Downen waited to see if he was just badly bruised or if he need to go to a doctor. About a week after the accident, Downen went to talk to Ellis to tell him he had been hurt on the ARSCO 8.
Regarding Downen's unseaworthiness claim, we note that in his brief to this court he presents several federal cases and suggests that they stand for the proposition *511 that inoperable navigational equipment renders a vessel unseaworthy. As authority, Downen relies upon Complaint of Armatur, S.A., 710 F. Supp. 390, 398 (D.P.R. 1988); Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652 (1st Cir.1980); Waterman Steamship Corp. v. Gay Cottons (The Chickasaw), 414 F.2d 724 (9th Cir.1969); Matter of Texaco, Inc., 570 F. Supp. 1272 (E.D.L.A.1983). Appellee points out that in these cases, the trier of fact was asked to determine whether the inoperable equipment rendered the vessel unseaworthy. In distinguishing Downen's cases from the case before us, we note that the jury was not asked to make such a specific finding of whether the inoperable navigational equipment rendered the vessel unseaworthy. Rather, here, the jury was asked by a proper broad form question whether the vessel was unseaworthy.
The jury determines the credibility of the witnesses and weighs the evidence. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962); Balandran v. Furr's, Inc., 833 S.W.2d 648, 652 (Tex.App.El Paso 1992, no writ). One party does not have to negate by affirmative evidence the evidence presented by the other side; the jury may simply disbelieve the evidence. Mclnnes v. Yamaha Motor Corp., U.S.A., 659 S.W.2d 704, 708 (Tex.App.Corpus Christi 1983), affd, 673 S.W.2d 185 (Tex.1984), cert, denied, 469 U.S. 1107, 105 S. Ct. 782, 83 L. Ed. 2d 777 (1985).
We cannot determine from the answers to the issues submitted whether the jury felt that Gulf Shrimp was negligent or not, whether its negligence was not a cause of Downen's injuries, or whether Downen simply failed to meet his burden of proof. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Dealers Elec. Supply v. Pierce, 824 S.W.2d 294, 294 (Tex.App. Waco 1992, writ denied). Nor can we determine whether the vessel was seaworthy or unseaworthy, or, if unseaworthy, such condition was not a cause of Downen's injuries, or whether Downen simply failed to meet the required burden of proof. In addition, causation is a question for the trier of fact when general experience and common sense enables a layman to determine the causal relationship between events and conditions. Pierce, 824 S.W.2d at 295. We conclude that in this case, causation was a question for the jury.
Both sides posit that this was a heavily contested case and that conflicting evidence exists on each issue. Though the evidence was conflicting at times, after weighing and considering all the evidence, we find that there is sufficient evidence to support the jury's findings in favor of Gulf Shrimp. We do not find the jury's answers to questions two and three to be so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We overrule points one and two.
By point three, Downen continues to argue that the accident must have been caused by the vessel's unseaworthiness or Gulf Shrimp's negligence because there was no evidence to support a jury verdict reflecting that the vessel's grounding was an unavoidable accident. We disagree with Downen's contention.
The use of mandated broad form questions does not allow this court to adopt Downen's contention. We note that the court included in its charge the definition of "unavoidable accident."[2]
Trial courts have considerable discretion in submitting explanatory instructions and definitions. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974); Wisenbarger v. Gonzales Warm Springs Rehabilitation Hosp., 789 S.W.2d 688, 692 (Tex.App.Corpus Christi 1990, writ denied). The proper function of an instruction *512 is to explain any legal or technical terms to the jury. Lumbermens Mut. Casualty Ins. Co. v. Garcia, 758 S.W.2d 893, 895 (Tex.App.Corpus Christi 1988, writ denied). An instruction is proper if it finds some support in the evidence and the inferences from it, and if it might be of some aid or assistance to the jury in answering the issues submitted. Hukill v. H.E.B. Food Stores, Inc., 756 S.W.2d 840, 843 (Tex.App.Corpus Christi 1988, no writ).
Unavoidable accident may be submitted as a definition or instruction in the court's charge when there is a possible causal effect of some physical condition or circumstance, or when one of the parties to the event is incapable of negligence. Lemos v. Montez, 680 S.W.2d 798, 800 (Tex. 1984); Wisenbarger, 789 S.W.2d at 692-93. We note that again Downen did not object to the submission of the instruction on "unavoidable accident."
We decline to adopt Downen's conclusion that because the jury failed to find the ARSCO 8 unseaworthy and failed to find Gulf Shrimp negligent that the jury necessarily found that the event was an unavoidable accident. As previously discussed, with the use of proper broad form questions we are unable to determine what the jury thought was the cause of Downen's injuries. The results of the jury's answers were that Texas Gulf Shrimp was not liable for negligence, that the ARSCO 8 was not liable as being unseaworthy, and that Downen was not negligent. We overrule point three.
By points of error four and five, Downen complains that the trial court erred by admitting into evidence portions of a transcribed oral statement Captain Buchanan made prior to his deposition which probably resulted in the rendition of an improper judgment. By point four, Downen asserts that the admission of portions of Captain Buchanan's oral statement as impeachment evidence was erroneous.
To obtain a reversal of a judgment based upon trial court error in the admission or exclusion of evidence, the following must be shown: 1) that the trial court in fact committed error; and 2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); Tex.R.App.P. 81(b)(1). Generally, reversible error does not exist for erroneous rulings when the evidence in question is cumulative and not controlling on a material issue dispositive of the case. Id. Thus, we must determine whether the judgment was controlled by testimony that should have been excluded. Id.
In order to impeach a witness with a prior statement, a proper foundation must be established. A proper foundation includes establishing where, when, and to whom the statement was made. Additionally, the party seeking to impeach the witness must allow the witness to admit or deny making the prior statement. Garcia v. Sky Climber, Inc., 470 S.W.2d 261, 266 (Tex.Civ.App.Houston [1st Dist] 1971, writ ref'd n.r.e.). If, upon cross-examination, the witness admits unequivocally having made the statement the impeachment is complete and the prior statement is not admissible. Tex.R.Civ.Evid. 613(a).
At trial, Gulf Shrimp sought to impeach Captain Buchanan's deposition testimony with a prior inconsistent statement. In deposition testimony, Buchanan stated that the reason he decided to return to port was because of all the problems he was having with the boat. It was this testimony that Gulf Shrimp wanted to impeach. Downen insisted both at trial and on appeal that admitting portions of the prior statement would be improper because there was no showing that Captain Buchanan at his deposition had been confronted with the statement and given an opportunity to explain any inconsistencies. The record reflects a lengthy bench discussion outside the jury's presence addressing whether to allow portions of Captain Buchanan's prior statement for impeachment purposes. Ultimately, the trial court allowed portions of Buchanan's prior statement into evidence and gave the jury a limiting instruction that they could only consider the testimony for impeachment purposes.
*513 At trial, Gulf Shrimp directed the court's and jury's attention to portions of Buchanan's deposition testimony in which Buchanan was questioned about making a prior statement. From our reading of the record, during Buchanan's deposition, he was handed a copy of a statement and asked to determine if it was a correct transcribed copy of his prior statement. He responded that it was a correct copy of a statement he made April 4, 1990, to Harry Green. In the deposition testimony, Buchanan was asked about his prior statement to Green that the reason for heading into port was because Downen had cut the anchor line and because he did not want Downen on the boat anymore but rather wanted to get another rigman to replace Downen. Buchanan responded that he might have said these were the reasons for returning to port but that he did not remember.
We conclude that Buchanan did not unequivocally admit making the prior statements. Thus, the portions of the prior statement concerning his reasons for returning to port were properly admitted as impeachment evidence since Buchanan did not unequivocally admit to the portions of the prior statement but, rather, attempted to explain them or could not remember making the statements for impeachment purposes. We find no error in admitting the prior statements about his reasons for returning to port. We overrule point four.
By point five, Downen asserts that the admission of portions of Captain Buchanan's transcribed oral statement made prior to his deposition regarding Downen's alcohol use were more prejudicial than probative and were reasonably calculated to cause and probably did cause an improper judgment.
Buchanan stated prior to his deposition that he believed that Downen was drunk. Downen contends that the evidence of drinking was not relevant to the issue of why and how the Captain ran aground and there was a great danger of unfair prejudice to Downen. In reviewing the evidence and jury findings, we note that the jury determined that Downen was not contributorily negligent in causing his injuries.
Thus, we conclude that Downen suffered no harm from the admission of Buchanan's transcribed oral statement relating to Downen's alcohol use. Tex.R.App.P. 81(b)(1). We overrule point five.
After addressing all of Downen's points of error, we affirm the trial court's judgment.
NOTES
[1] The court's instruction addressing Downen's claim of unseaworthiness was as follows:
A claim of "unseaworthiness" is a claim that the owner of a vessel has not fulfilled his duty to members of the crew to provide a vessel reasonably fit for its intended purpose. The duty to provide a seaworthy ship extends not only to the vessel itself but to all of its parts, equipment, and gear and also includes the responsibility of assigning an adequate crew.
The owner's duty under the law to provide a seaworthy ship is absolute. The owner may not delegate the duty to anyone. If he does not provide a seaworthy vessel, then no amount of due care or prudence excuses him, whether he knew or could have known of the deficiency.
The owner of a vessel is not required, however, to furnish an accident-free ship. A vessel is not called on to have the best of appliances and equipment or the finest of crews but only such gear as is reasonably proper and suitable for its intended use and a crew that is reasonably competent and adequate.
To recover under a claim of unseaworthiness, a Plaintiff must establish that the breach of duty that rendered the vessel unseaworthy was the "proximate cause" of his injury.
[2] The court defined "proximate cause" as,
a cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause. The court then set out that an occurrence may be an "unavoidable accident," that is, an event not proximately caused by the negligence of any party to it.
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102 N.H. 215 (1959)
ROBWOOD ADVERTISING ASSOCIATES, INC.
v.
NASHUA.
No. 4754.
Supreme Court of New Hampshire.
Argued June 2, 1959.
Decided July 10, 1959.
*217 Devine, Millimet & McDonough and Matthias J. Reynolds (Mr. Millimet orally), for the plaintiff.
Leo R. Lesieur, city solicitor, for the defendant.
BLANDIN, J.
The fundamental issue before us is the validity of the so-called "consent provision" of the 1957 city of Nashua zoning ordinance, Article IX, s. 45-A(5). This reads as follows: "Any application for a variance in the use of land or a structure shall be accompanied by the written consent of the owners (as of record at the Assessor's office and the City Engineer's Office) of sixty (60) per cent of all real property situated within two hundred (200) feet of any of the boundaries of the lot for which the use variance is sought."
Before reaching this question, it is necessary to dispose of certain preliminary matters. The plaintiff first claims that the disputed provision does not require the interpretation placed upon it by the city officials. Sections 45-A(1), A(2) in substance provide that "the Board shall hear and decide appeals . . ." and "shall fix a reasonable time for the hearing . . ." A(4) states "In granting variances, the Board, if it deem it proper to the carrying out of the intent and purpose of this Ordinance, may impose such reasonable and additional stipulations and conditions as will, in its judgment, better fulfill the purpose of the ordinance."
The plaintiff contends that these sections, taken in conjunction with A(5), indicate a hearing may be held without the filing of the consent of the abutters, because s. A(5) "does not say that no hearing may be granted unless the application therefor is accompanied by consent of the specified percentage of abutters." However, the plaintiff concedes that the wording of A(5) "tends to establish the interpretation placed upon it by the City Officials . . . ." It is further argued that in view of the constitutional issues raised by the interpretation of the provision by the city, we should adopt a different construction which will involve no constitutional conflict. Cloutier v. State Milk Control Board, 92 N. H. 199.
Reading the ordinance as a whole, it seems clear to us that the intent of the legislative body was to make the consent of the abutters a condition precedent to the granting of any hearing. The plaintiff, in a supplemental argument, urges that the intent of the legislative body of the city, when it amended the zoning ordinance by adding a consent provision, was to furnish an *218 additional means of relief so that a variance would be granted automatically if the consents of the abutters could be obtained. The amendment expressly states that the board "may" act, not that it must grant relief if consent is obtained. The construction advocated by the plaintiff runs contrary to the words and tenor of the ordinance, and we are unable to accept it. Viewing the entire situation, we are satisfied that the board's construction was proper.
It is next asserted that the zoning enabling act (RSA 31:69, 71, 72) does not provide expressly for a consent requirement as a condition precedent to a hearing for a variance, and therefore the city exceeded its powers in establishing such a law. The plaintiff cites no authority for the proposition that an enabling act authorizing a zoning law must contain specific authorization for a consent provision, and we find no indication in the decisions that this is so. A similar objection was raised to a like ordinance in the case of Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, and the court found no difficulty in holding the regulation consistent with the subservience of the public welfare and within the authorization of the enabling act (G. L., c. 40, ss. 25-30). We believe this represents the prevailing view and that the argument that the statute must spell out authority for each particular regulation which a municipality might wish to make is unsound. The powers granted by RSA 31:60-89 are broadly designed to secure and promote "the public health, safety, or morals, the comfort of the community, or the protection of property." Sundeen v. Rogers, 83 N. H. 253, 256; Vlahos Realty Co. v. Little Boar's Head, 101 N. H. 460, 463, 464, 465. We hold that s. A(5) was a valid exercise of the power of the city under the enabling act.
We come now to the nub of the plaintiff's case, which is that the consent requirement "is illegal and unconstitutional under the State and Federal courts as an unlawful delegation of legislative power to private individuals." From the welter of decisions upon this subject not all of which seem reconcilable (see anno. 21 A. L. R. (2d) 551) the majority rule appears reasonably clear. It is that if the effect of a consent provision is to legislate it is invalid, but if it serves merely to permit the waiver of a restriction created by the legislative authority of the municipality, which has provided for such a waiver, it is upheld. Cusack Co. v. City of Chicago, 242 U.S. 526, 531; Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 62, 63; Yokley, Zoning Law and Practice *219 (2d ed.) s. 89, pp. 197, 201; Rathkopf, Law of Zoning and Planning (3d ed.) c. 29, p. 421; 2 Metzenbaum, Law of Zoning, (2d ed.) 1067.
In the present case the legislative authority of the city, acting under the powers granted it by RSA ch. 31, legally passed an ordinance setting up zones with accompanying restrictions and regulations. Neither under Article II, s. 8-"B," relating to "Use Regulations" nor under s. 10, "Accessory uses in Residence Districts," can the plaintiff qualify for the permission it seeks. If it is to be given relief, concededly it must be by way of a variance under Article IX, s. 45. The situation which faced the plaintiff when it bought the property was that the use which it proposed to make of its purchase was lawfully forbidden under the exercise of the police power as implemented by the zoning ordinance in the interest of the welfare of the community, including especially that of the abutting landowners. Sundeen v. Rogers, 83 N. H. 253, 260. The only effect of the consent provision was to inform the board that the abutters did not object to a variance of the restriction by the board if the latter, in its discretion, found such a variance would serve the public interest and not offend the spirit of the ordinance. Article IX, s. 45-A(6) states:
"In granting a variance the Board may modify the application of the Zoning Ordinance when all of the following conditions are met:
a. No diminution of values of surrounding properties would be suffered.
b. Granting the permit would be of benefit to the public interest.
c. Denial of the permit would result in unnecessary hardship on the owner seeking it.
d. By granting the permit, substantial justice will be done.
e. The use will not be contrary to the spirit of the Ordinance."
It is obvious that the consent of the neighboring owners was merely a condition precedent to the exercise of the power of the board, acting within its discretion, to decide whether to grant a variance. By granting or withholding this consent, the abutters did not seek to impose any regulations or to legislate upon any phase of the matter. So interpreted, the provision is sustainable. Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 63; Cusack Co. v. City of Chicago, 242 U.S. 526, 531; Rathkopf, Law of Zoning and Planning (3d ed.) c. 29, p. 421.
As was said in an excellent opinion, based on facts similar to *220 those here, reviewing authorities on the subject, the needs and desires of the locality particularly affected are important, and hence the abutting owners' consent is properly required. Cross v. Bilett, 122 Col. 278, 286. See Gelinas v. Portsmouth, 97 N. H. 248, 250. The Cross case also dwells on the expanding concept of the proper exercise of police power in zoning under modern conditions. See also, Sundeen v. Rogers, 83 N. H. 253, 256, 257. Even cases reaching the opposite conclusion from the above authorities, because of factual differences concede that where the property is subject to the police power, as here, consent provisions are upheld. See Valkanet v. Chicago, 13 Ill. (2d) 268. In short, it appears to us that the consent provision here is a valid jurisdictional enactment, and any act of the board without complying with its provisions would be void. Cross v. Bilett, supra, 293, 294.
The cases cited in support of the plaintiff's position are mainly distinguishable on their facts. In Seattle Trust Co. v. Roberge, 278 U.S. 116, the decision holding a consent provision invalid rested squarely on the proposition that the proposed new home for the aged, involved in the dispute, did not come within the exercise of the police power because of the nature of the use and hence was not within the prohibition of the zoning regulation. The court did not overrule the Cusack case, but distinguished it on these grounds. Id., 122.
In Concordia Collegiate Institute v. Miller, 301 N.Y. 189, the court struck down the consent provision because no standards or guides had been given the board, the ordinance was passed after the plaintiff was lawfully established, and finally, the police power again was not applicable. In Eubank v. Richmond, 226 U.S. 137, the consent provision in effect empowered the abutters to make laws and the case is therefore no authority for the plaintiff's position here. It will be noted in all these situations that no discretion was left to the board, which is also contrary to the situation before us. Crossroads Realty v. Gilbert, 109 N. Y. S. (2d) 59, cited by the plaintiff, is a brief New York Supreme Court decision which rests its authority on the Concordia case, supra. Insofar as it may be thought to support the plaintiff's contention, we decline to follow it in the face of what we believe to be the weight of authority and the better reason.
It appears that what we have said disposes of all substantial objections raised by the plaintiff to the ordinance. The disputed provision, established in conformity with the due process standards *221 of RSA 31:63, 65, 71, containing as it does the customary provisions for notice, hearing and appeal (Art. IX, ss. 44, 45), fulfills all the requisites of due process. It cannot be said that "the rudimentary requirements of fair play" have not been met. Cf. Morgan v. United States, 304 U.S. 1, 14, 15. No ground exists for any claim that there has been a denial of equal protection of the law, and none has been briefed or argued. The order is
Judgment for the defendant.
LAMPRON, J., did not sit; KENISON, C. J. and DUNCAN, J., dissented, being of the opinion that the enabling act (RSA 31:69, 71, 72) does not authorize imposition of the consent requirements contained in Article IX, s. 45-A (5) of the Nashua ordinance.
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425 F. Supp. 1305 (1977)
John HAAS and Catherine Haas, h/w
v.
653 LEASING COMPANY.
John HAAS and Catherine Haas, h/w
v.
SUN SHIPBUILDING & DRYDOCK COMPANY.
Civ. A. Nos. 73-2026, 73-2078.
United States District Court, E. D. Pennsylvania.
January 25, 1977.
*1306 Morris M. Shuster, Philadelphia, Pa., for plaintiffs.
Victor L. Drexel, Philadelphia, Pa., for defendants.
OPINION AND ORDER
EDWARD R. BECKER, District Judge.
I. Preliminary Statement
This case concerns the right of the employee of a shipbuilding company, seriously injured while working to complete a ship which had undergone sea trials but was not yet commissioned, to assert a personal injury claim under the maritime law against his employer or against his employer's wholly owned subsidiary which held title to the hull, as against the claim that the employee's exclusive remedy is compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq ("LHWCA") (the so-called "comp bar").
On September 20, 1971, plaintiff John Haas, a citizen of Pennsylvania and an employee of defendant Sun Shipbuilding and Drydock Company, a Pennsylvania corporation ("Sun Ship") was working as a pipefitter on Hull 653 which, at the time, was moored in the Delaware River, a navigable waterway, at Chester, Pennsylvania.[1] Hull 653 was being built by Sun Ship but was owned by defendant 653 Leasing Company ("653"), a Delaware corporation formed by Sun Ship as a vehicle for financing construction of the hull which, after christening, was known as the SS "Sohio Resolute." Hull 653 had undergone sea trials, after which it returned to the Sun Ship yard for the completion of unfinished work. On September 20, 1971, in the course of that work, plaintiff slipped and fell down a ladder leading to the engine room of Hull 653, injuring his back. He received compensation from Sun Ship under the LHWCA. Two separate actions are before us (one against each defendant). Jurisdiction *1307 is founded upon 28 U.S.C. § 1333 (our admiralty jurisdiction).[2] This opinion addresses the motion of the defendants for summary judgment.
In terms of legal theory, plaintiff asserts a breach of defendants' warranty of seaworthiness as well as of their (federal) maritime law duty to provide plaintiff with a safe place to work.[3] Sun Ship bases its motion for summary judgment primarily on the ground that plaintiff's exclusive remedy against his employer for work-related injuries is the compensation provided for by the LHWCA, which plaintiff has already received.[4] Moreover, Sun Ship and 653 claim that they are entitled to summary judgment on plaintiff's unseaworthiness claim because Hull 653 was not a vessel in navigation as to which a warranty of seaworthiness existed at the time of plaintiff's accident. 653 also asserts that a negligence claim cannot be made against it because it was not in control of Hull 653 at the time of the accident.
Plaintiff has been unable to mount a serious contest to defendants' arguments regarding the warranty of seaworthiness. However, with regards to defendants' contentions about plaintiff's maritime negligence claim, plaintiff has mounted two highly sophisticated challenges. The first is that his employer Sun Ship is liable to him notwithstanding the LHWCA compensation bar because of its role as an owner pro hac vice of the virtually completed hull which, though not a vessel in commerce, was nonetheless in navigable waters, hence subject to maritime jurisdiction. This argument proceeds from an analysis of the Supreme Court case of Reed v. The Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963) and confronts the outer limits of what Judge Gibbons has described as the "Sieracki-Ryan end-run."[5] As will be seen, we must reject the owner pro hac vice argument because of its inapplicability (at least prior to the 1972 amendments to the LHWCA) to negligence as opposed to unseaworthiness claims, and grant Sun Ship's motion.
Plaintiff's second approach, almost as highly conceptual, relates to his claim against 653. Plaintiff submits that because the Sun Ship employee in control of the construction of the hull was also an officer of 653, there is a genuine issue of material fact as to whether 653 controlled the hull at the time of plaintiff's accident, and alternatively, that 653 is a joint venturer with Sun Ship in the building of the hull and, as such, is vicariously liable for any negligence of Sun Ship which caused plaintiff's injuries. In such event plaintiff asserts the right to sue 653 as a third party under 33 U.S.C. § 933(a). Needless to say, 653 also counters the plaintiff's contentions, maintaining that the plaintiff's control argument is skewed and misconceived, and that the joint venture argument does not defeat the "comp bar." We find no dispute as to the material facts which have been developed from an extensive discovery record, and, for reasons which will at length appear, we will also grant 653's motions.
As our recital of the arguments and counterarguments of the parties suggests, the legal contention of the parties on the present motion cannot be understood without a recitation of the history of Hull 653 and an understanding of the corporate and financial relationship of the defendants. The following description is based on undisputed facts culled from the record.
*1308 II. The Undisputed Facts Relevant to Defendants' Motions
Pursuant to a charter agreement reached in the late 1960's between Sun Ship and Mathiasen's Tanker Industries, Inc. (Mathiasen's), Sun Ship commenced to build a group of three oil tankers. Construction of the third tanker in the group, Hull 653, began in 1970. To facilitate federally insured financing of the construction of Hull 653, Sun Ship organized 653 to own the ship. Sun Ship holds all of 653's outstanding stock, and all of 653's officers and directors are also Sun Ship officers. 653's officers and directors are not compensated for their services, aside from the salary they receive from Sun Ship. The officers and directors of 653 do not have offices other than their Sun Ship offices, and 653's board of directors meetings are held in Sun Ship's Engineering Management Building in Eddystone, Pennsylvania.
On June 15, 1971, Sun Ship and 653 entered into a construction agreement which required 653 to pay Sun Ship $20,600,000.00 for the completed vessel, an amount which 653 would raise by issuing federally guaranteed bonds, with Philadelphia National Bank as trustee. Under the contract, title to the hull, to the extent completed, was vested in 653. It is undisputed that 653 was the actual owner of the hull at the time of plaintiff's accident. 653, shortly after contracting with Sun Ship, entered into a bareboat charter agreement with Mathiasen's in which Mathiasen's agreed to charter the completed vessel for a term of 18 years, in exchange for monthly payments equal to 653's monthly bond payments.
Hull 653 was launched on August 21, 1971 and underwent sea trials on September 16 and 17, 1971. Plaintiff was not aboard Hull 653 during the sea trials, and Hull 653 was not commissioned at the time of the sea trials. It was allowed to go to sea for limited purposes under a master carpenter's certificate. After the sea trials were completed, Hull 653 returned to the Sun Ship dock for further work (it was moored in the Delaware River), and it was in the course of performing this work (on September 20, 1971) that plaintiff was seriously injured. A work force of Sun Ship employees performed this construction as it had all other work on Hull 653. Robert Galloway, vice president of operations of Sun Ship and a vice president and director of 653, supervised the construction work.
On September 30, 1971, ten days after plaintiff's accident, and after it was certified, Hull 653 was formally delivered to its owner, 653. The ship was accepted on behalf of 653 at Sun Ship's offices by George Liacouras, treasurer of Sun Ship and Treasurer and Assistant Secretary of 653. On the same day, 653 transferred the watch of Hull 653 to the licensed officers of Mathiasen's. Documents entitling the vessel to sail were posted, and keys to the stateroom were given to the ship's officers. The ship remained in the Sun Ship yard until November 5, 1971, when it began trading.
The foregoing undisputed facts form the basis for the discussion which follows and the granting of summary judgment for defendants. There are no material facts as to which there is a genuine issue, hence the questions before us are purely legal ones.
III. Discussion
A. Plaintiff's Unseaworthiness Claim
The doctrine of seaworthiness is not applicable to a maritime personal injury case unless (1) the obligation to provide a seaworthy vessel is owed to the plaintiff; and (2) the vessel is in navigation. See 2 M. Norris, The Law of Maritime Personal Injuries § 321 (3d ed. 1975). Although we have serious doubts as to whether a pipefitter working on the construction of a vessel is a person to whom the duty to provide a seaworthy vessel is owed, the parties have not addressed, and we need not reach that issue. For, we do agree with defendants that a launched but uncommissioned vessel which has returned to the yard for further work after sea trials is not a vessel in navigation. The case law on this point is rather clear.
In Williams v. Avondale Shipyards, Inc., 452 F.2d 955 (5th Cir. 1971), the court *1309 defined the analogous "in navigation" requirement of the Jones Act[6] as follows:
The term `in navigation' means `engaged as an instrument of commerce and transportation on navigable waters.'
Id. at 958. Here the parties agree that the ship did not engage in commerce and transportation until after it left the Sun Ship yard over a month after the accident. It in fact could not have legally done so prior to receiving its Coast Guard certificate of inspection on September 30, 1971, ten days after the accident. Merely because the ship was launched and sailing upon navigable waters during sea trials does not mean that it was "in navigation," a term of art. The purpose of sea trials is to test the ship, not to engage in commerce or transportation.[7] In Williams, the plaintiff, who was employed by the ship builder, was injured during the ship's final sea trials. The court stated:
[N]o warranty of seaworthiness was owed to anyone. The whole purpose of the sea trial was to ascertain what additional work would be required to make the [ship] fully fit. . . . At this stage of construction no one was holding forth to any persons going aboard the vessel that she was in fact completed, fit and seaworthy.
452 F.2d 955 (5th Cir. 1971). See also West v. United States, 361 U.S. 118, 122, 80 S. Ct. 189, 192, 4 L. Ed. 2d 161, 165 (1959); Frankel v. Bethlehem-Fairfield Shipyard, 132 F.2d 634 (4th Cir. 1942). Although here the accident occurred three days after sea trials, the Williams principle still applies.
Plaintiff asserts that the test is not whether the vessel is engaged as an instrument of commerce and transportation but rather whether it is completed and delivered at the time of the accident. Second, he claims that when Hull 653 was to be completed and delivered in this case was not the subject of arms length negotiations, since the builder and the owner are so closely related, leaving it for the court to determine whether the ship could have been completed and delivered prior to plaintiff's accident. We find the former argument to be contrary to precedent and the latter argument without precedent and unpersuasive. We hold that the proper test is whether the vessel is engaged as an instrument of commerce or transportation, not whether it is completed or delivered.
The cases which plaintiff cites in support of his position are not contrary to the above view.[8] The cases, Rogers v. M/V Ralph Bollinger, 279 F. Supp. 92 (E.D.La.1968); Frankel, supra; Williams, supra; and Alfred v. M/V Margaret Lykes, 398 F.2d 684 (5th Cir. 1968), merely state at most that the warranty of seaworthiness does not arise if the ship is uncompleted, not that completion triggers the existence of the warranty. From these cases we may only conclude that an uncompleted vessel is not in navigation, not that a completed vessel is automatically in navigation. Since the parties agree that Hull 653 was not engaged as an instrument of commerce and transportation at the time of the accident, clearly no warranty of seaworthiness existed, and summary judgment for the defendants must be granted on the unseaworthiness claim.
B. Plaintiff's Maritime Negligence Claim
1. The Claim Against Sun Ship (The Owner Pro Hac Vice Argument)
Section 905 of the LHWCA, which creates the "comp bar" to actions by an *1310 employee against his employer, provides as follows:[8a]
The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.
Plaintiff contends that his action is not barred by § 905 despite its literal application, because of the doctrine of Reed v. The Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963). In that case, Reed, a longshoreman, was injured while loading the steamship Yaka. He filed a libel in rem against the ship. The Yaka's owner, Waterman Steamship Corporation, appeared as claimant of the ship and impleaded Pan-Atlantic Steamship Corp., Reed's employer and the bareboat charterer of the Yaka. The district court, finding that the Yaka was unseaworthy because of a defective pallet which caused the injury, held against Waterman. Because the pallet was supplied by Pan-Atlantic, the court held that it must make Waterman whole.
The Third Circuit reversed as to both defendants, finding that Waterman was not liable because the ship had been demised under bareboat charter and that Pan-Atlantic could not be held liable because compensation was Reed's exclusive remedy against his employer. However, the Supreme Court reversed the Third Circuit on the basis that Pan-Atlantic, as bareboat charterer, was an owner pro hac vice[9] and as such was personally liable for the unseaworthiness of the vessel. It then reviewed the cases which extended the warranty of seaworthiness to longshoremen, see Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), and which required the independent stevedore to make whole the shipowner if the shipowner were required to pay an employee of the stevedoring company for a breach of the warranty of seaworthiness, see Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956). The effect of Sieracki and Ryan was to place the burden of the longshoreman's recovery on his employer despite the exclusive remedy provision of the Act. The Third Circuit's decision had denied this recovery to the employee because his employer happened to also be the owner pro hac vice of the ship, whereas the employee could have recovered if the ship had been independently owned. The Court, in concluding that Pan-Atlantic could be held liable to Reed for the unseaworthiness of the vessel, stated:
[O]nly blind adherence to the superficial meaning of a statute could prompt us to ignore the fact that Pan-Atlantic was not only an employer of longshoremen but was also a bareboat charterer and operator of a ship, and, as such, was charged with the traditional, absolute, and nondelegable obligation of seaworthiness which it should not be permitted to avoid.
373 U.S. at 415, 83 S.Ct. at 1353.
Plaintiff argues that Reed stands for the proposition that an entity which is both the employer of the injured plaintiff and the owner pro hac vice of the vessel on which *1311 he is injured is not insulated from a tort suit because of its employer status. Sun Ship, he contends, is not only his employer, but also the owner pro hac vice of the ship because either (1) it controlled 653, the owner of record, or (2) Sun Ship and 653 were joint venturers. Sun Ship contests plaintiff's characterization of its relationship with 653 and also argues that the basis of the Reed decision is founded on the "traditional, absolute and nondelegable obligation of seaworthiness," and thus it cannot be read to allow a maritime negligence claim (as opposed to an unseaworthiness claim) against the employer in the face of the comp bar. We have disposed of plaintiff's unseaworthiness claim. And, for the reasons which follow, we agree with Sun Ship that Reed does not apply to plaintiff's negligence claim, and thus we need not reach the complex issues raised by plaintiff's contentions regarding the relationship of Sun Ship and 653.
A careful analysis of the Court's opinion in Reed reveals that the Court had two primary concerns which led to its decision. First, the Court recognized the inequity of allowing an employee to recover from his employer via the Sieracki-Ryan route if the ship is independently owned, while not allowing recovery if the ship is owned or chartered by the employer. Second, the Court expressed its reluctance to allow the shipowner or charterer to avoid the traditional obligation of providing a seaworthy vessel.
We do not find the second consideration to be influential in a negligence action where the absolute, nondelegable obligation of seaworthiness is not in issue. This distinction between an unseaworthiness claim and a negligence claim in the context of the owner pro hac vice argument was recognized by the Ninth Circuit in Arvidson v. Dillingham Corp., 462 F.2d 1 (9th Cir.), cert. denied, 409 U.S. 983, 93 S. Ct. 321, 34 L. Ed. 2d 247 (1972). In that case, the plaintiffs, who were painters employed by the defendant, were injured when an explosion occurred on a barge being constructed by the defendant for its own use. The plaintiffs received workmen's compensation, but then brought a federal court action alleging unseaworthiness of the vessel and negligence of the defendant in failing to provide a safe place to work. Plaintiffs later conceded that their unseaworthiness claim could not succeed because the vessel was not in navigation. Defendant moved for summary judgment on the negligence claim on the ground that compensation was the plaintiffs' exclusive remedy. Both the district court and Court of Appeals agreed, rejecting plaintiffs' contention that Reed applied to negligence claims.
In dismissing plaintiffs' negligence claim, the Ninth Circuit noted that in both Reed and Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731, 87 S. Ct. 1419, 18 L. Ed. 2d 488 (1967),[9a] the Supreme Court had only discussed unseaworthiness claims. It then pointed to several cases in which the Supreme Court had discussed at length the distinctions between an unseaworthiness claim and negligence claim, see Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498-99, 91 S. Ct. 514, 27 L. Ed. 2d 562 (1971); Mitchell v. Trawler Racer, 362 U.S. 539, 550, 80 S. Ct. 926, 933, 4 L. Ed. 2d 941, 948 (1960), and concluded that there is "nothing in any of the decisions of the Supreme Court to suggest that this additional right of recovery [right given by Reed] would be extended to an action for negligence." 462 F.2d at 4.[10] We agree.
Turning to plaintiff's other Reed-based argument, the Court in Reed was influenced, as we have noted by equitable considerations, i. e., the inequity of denying recovery to plaintiff Reed because the owner pro hac vice was his employer, whereas he could have recovered had the (pro hac vice) owner or bareboat charterer been a *1312 third person. These "equitable" considerations do not apply here, in the negligence context. As will be seen infra, the sole basis for plaintiff's contention that 653 could be liable in negligence to him is 653's putative control by virtue of the financial relationship between 653 and Sun Ship. However, if 653 were completely independent of Sun Ship, plaintiff could not have asserted a negligence claim against it because it would not have been in control of the vessel at the time of the accident. West v. United States, 361 U.S. 118, 80 S. Ct. 189, 4 L. Ed. 2d 161 (1959). Thus, assuming independence of the shipowner, the employee of a shipbuilder could not successfully sue the owner of the ship for negligence in failing to provide a safe place to work under the facts at bar. By applying the exclusive remedy provision to plaintiff's negligence claim in this case, we therefore do not deny him a remedy that he would have had if the shipowner were independent. The Reed analogy is thus undone.
Plaintiff contends that the Supreme Court in Jackson v. Lykes Bros. Steamship Co., supra, and the Third Circuit in Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), approved the application of the Reed doctrine to negligence claims. Since plaintiff's contention regarding Jackson is more easily disposed of, we shall deal with it first.
In Jackson, plaintiff, the widow of a longshoreman employed by a steamship company, who died after inhaling noxious fumes while working on one of the defendant's vessels, filed an action in state court alleging that her husband's death was caused by defendant's negligence or the unseaworthiness of the vessel. The Court of Appeal of Louisiana, the highest state court that heard the case, decided that the action was barred by the exclusive remedy provision of the LHWCA, interpreting Reed as allowing an in rem action against the ship but not an in personam action against the shipowner. The question was presented to the Supreme Court phrased as follows by the plaintiff-petitioner:
Can there be in rem liability of a vessel to a seaman/longshoreman when there is no in personam liability of the shipowner/operator of the vessel, for the breach of the warranty of seaworthiness?"
(emphasis added). Brief for the petitioner at 3. The Supreme Court reversed and reaffirmed Reed. The Court's opinion, after noting that plaintiff's state court complaint contained a negligence claim, spoke solely of the warranty of seaworthiness. For instance, the Court stated: "In the final analysis the contention here against recovery as in [Reed] is that the longshoreman who is employed to work on a ship by an independent stevedore company instead of the shipowner can recover for the unseaworthiness of the vessel, but a longshoreman hired by the same shipowner to do exactly the same kind of work on an unseaworthy ship cannot recover. We reject this contention as we did before." 386 U.S. at 735, 87 S.Ct. at 1422.
The present plaintiff argues that by acknowledging that Mrs. Jackson had alleged negligence in her complaint, the Supreme Court, by reversing and remanding, impliedly approved the application of Reed to negligence claims. The question posed by the petitioner in Jackson was expressed, however, in terms of the warranty of seaworthiness, just as the Court's discussion of Reed was limited to the nature of the warranty of seaworthiness. The Court's discussion of the bases of Reed in fact reinforces our earlier expressed view as to: (1) the rationale of the Court in Reed; and (2) why the Reed doctrine should be limited to warranty of seaworthiness claims.
In Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), the Third Circuit held that an employee who received LHWCA compensation could assert a negligence claim against his employer who was the owner pro hac vice of the barge on which he was injured despite the exclusive remedy provision in § 905(b) of the 1972 LHWCA Amendments (the accident occurred after the effective date of the 1972 amendments). In the course of its analysis, the court discussed Reed in a manner which *1313 suggests that it read that case to cover both unseaworthiness and negligence cases. Plaintiff argues that we are bound by this apparent interpretation of Reed. After a careful analysis of the reasoning of the Griffith court, we believe that the court did not construe Reed in the broad manner suggested by plaintiff. To understand why, we must discuss in detail the legal issues involved in Griffith and the statutory context in which they arose.
Griffith, an employee of Wheeling Steel, was injured in May 1973, while working on a barge which had been chartered by Wheeling. Griffith filed an action against Wheeling as owner pro hac vice and against the actual barge owner, alleging negligence and unseaworthiness of the vessel. The amendment upon which the court focused in Griffith was 33 U.S.C. § 905. As we have noted, the amended section repeats in § 905(a) the exclusive remedy provision of the old act (see n. 8a supra) and then adds § 905(b)[11] which reads in relevant part:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title . . .. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness . . ..
It is this provision, coupled with the definitional sections of the 1972 amendments,[12] which creates constructional problems. For, if the vessel's owner or owner pro hac vice is the employer of the injured party, then § 905(b) seems to allow a § 933 action by the employee against his employer in direct conflict with § 905(a), the exclusive remedy provision. Finding Wheeling to be an owner pro hac vice, the Griffith court was faced with resolving this conflict.
In his opinion for the Griffith court, Judge Gibbons set forth at length the conceptual reasons why the plaintiff should have no recovery against his employer, with particular emphasis on § 905(a). He followed with an analysis of the policy reasons for that result:
It would place longshoremen in the same position with respect to seaward third parties as to shoreside third parties. If a truck owned and operated by an outside contractor should injure the longshoreman on the pier he would have a third party action, while if the truck was owned and operated by his employer, he would not. The heart of all workmen's compensation systems is the trade-off between the certainty of benefits and the limitation of employer liability. There is no argument in logic and reason why an employer who owns barges should be treated less favorably than an employer who owns trucks.
521 F.2d 31 at 42. However, he continued:
But while logic and common sense suggest the literal application of § 905(a), the ghost of Sieracki-Ryan stands in the way. The Supreme Court has already construed the exclusive remedy provision as permitting a suit against a pro hac vice who was also an employer. In Reed v. The Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963), a longshoreman was injured as a result of an unseaworthy condition on board the vessel The Yaka, which was under bareboat charter to Pan-Atlantic Steamship Corporation, his employer. Reed brought an in rem action against the vessel. He was not a member of the crew, and thus was covered under LHWCA. Reviewing the way in which Sieracki and Ryan had already made an end-run around the exclusive remedy provision in § 905(a) (then § 905), Justice Black, writing for the Court, concluded:
*1314 In the light of this whole body of law, statutory and decisional, only blind adherence to the superficial meaning of a statute could prompt us to ignore the fact that Pan-Atlantic was not only an employer of longshoremen but was also a bareboat charterer and operator of a ship and, as such, was charged with the traditional absolute and nondelegable obligation of seaworthiness which it should not be permitted to avoid. . .
373 U.S. at 415, 83 S.Ct. at 1353. Thus § 905, now § 905(a), was held to be no bar to a suit against a vessel chartered to a pro hac vice owner which was also an employer liable for compensation payments. . . .
. . . . .
Since Congress made no change in the operative language of the exclusive remedy provision, we would appear to be bound by the eviscerating construction of Reed v. The Yaka, supra. Congress was aware of that construction, and deliberately chose to deal with it only to the limited extent of the second sentence in § 905(b). The vessel, even a vessel which is an employer under the Act, is relieved of liability for negligence of persons engaged in providing stevedoring services, but is not relieved of liability for its own "owner" occasioned negligence.
521 F.2d 31 at 42-43 (footnotes omitted, emphasis added). Judge Gibbons concluded that no construction appeared open which could shield Wheeling from liability as a pro hac vice owner for the negligence of employees engaged in services in connection with the barge other than stevedoring.[13]
We do not read Griffith as interpreting Reed to authorize a negligence action by an employee against his employer who happens also to be the owner pro hac vice of the ship on which he was injured under the state of the law before the 1972 LHWCA amendment. Instead, we read it for what it teaches: that where Congress was aware of the "eviscerating construction" of Reed, and included owners pro hac vice (via the definitional sections, see n. 12 supra) within the ambit of those suable by the injured person pursuant to § 933 for "owner" occasioned negligence in the amended statute, but failed to change the operative language of the § 905 comp bar provision, it was necessary to hold Wheeling, as owner pro hac vice, liable so as to give meaning and effect to the express Congressional authorization of a negligence action against the owner (pro hac vice) employer in (the new) § 905(b).
We conclude then that the Griffith court did not interpret Reed as allowing a negligence action in the situation at bar. Furthermore, for the reasons discussed above, we interpret Reed as being limited to unseaworthiness claims, and it therefore cannot support plaintiff's negligence claim against Sun Ship. Summary judgment must therefore be granted in favor of Sun Ship on plaintiff's negligence claim.
2. The Claim Against 653 (The Control and Joint Venturer Arguments and the Comp Bar)
In West v. United States, 361 U.S. 118, 80 S. Ct. 189, 4 L. Ed. 2d 161 (1959), the plaintiff, an employee of an independent contractor engaged to reactivate a vessel, was injured aboard the vessel, which was owned by the United States. Prior to West's accident the ship had been towed to the contractor's repair dock for the purpose of performing the work contracted for. Although the United States had a team of inspectors on board the ship, the team had no control over it. While the vessel was at the contractor's dock, the contractor had complete responsibility for the making of the repairs and control over the vessel. West contended that the duty to provide a safe place to work, the basis of his maritime negligence claim, was a nondelegable duty, but the Court held otherwise. It found that where the owner:
*1315 had no control over the vessel, or power either to supervise or control the repair work . . .. [i]t appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs. . . .
361 U.S. at 123, 80 S.Ct. at 193.
653 contends that, (1) it similarly had no responsibility for the construction of Hull 653 and exercised no control over it while it was being constructed; and (2) in view of West, it owed no duty to the plaintiff to provide him with a safe place to work. Plaintiff does not disagree with 653's explication of West, but counters that, (1) there is a genuine issue of material fact as to whether 653 controlled Hull 653 at the time of the accident because the Sun Ship employee in control of the construction of the ship was also an officer of 653; and (2) 653 was a joint venturer with Sun Ship in the building of Hull 653, and as such, is vicariously liable for any negligence of Sun Ship which proximately caused plaintiff's injuries. We shall consider plaintiff's arguments seriatim.
Plaintiff contends that a fact question is presented as to the existence of control over Hull 653 by the officers and directors of 653, who were also officers of Sun Ship. Plaintiff points out in particular that Robert Galloway, a Sun Ship vice president of operations, was in charge of construction of Hull 653, and was also a vice president and director of 653. Plaintiff, however, has not provided any evidence that, during the construction of Hull 653 Galloway or any other Sun Ship employee was acting other than in his capacity as a Sun Ship employee.
Mr. Galloway testified at his deposition as follows:
I viewed my position at the time as being one of constructing a ship as an employee of [Sun Ship]. My relationship with [653] was a side type of thing.
I viewed my duties as being to represent [Sun Ship] in the construction of the vessel. The fact that I was an officer of [653] was secondary in nature to it.
Galloway deposition at 25.
Plaintiff notes that Galloway admitted that he felt he was "carrying out the purposes" of 653 by performing his duties for Sun Ship. We think this, however, does not, even in microcosm, show that he was controlling the construction of Hull 653 on behalf of 653.
Our own research of the record reveals nothing which supports plaintiff's contention that 653 exercised control over the construction of Hull 653. The mere fact that Galloway or anyone else was an officer of both corporations does not aid plaintiff. It is quite common for persons engaged in business to serve as officers or directors of more than one corporation as well as to occupy positions as officers or directors of civic organizations and religious or other nonprofit institutions. It could hardly be argued that such interlocking directorates or officerships lead to responsibility on the part of one of the organizations for liability arising out of the activities of the other.
It is also of importance to note that the construction of Hull 653 took place in Sun Ship's yard in accordance with a construction contract entered into by Sun Ship and 653 which stated that Sun Ship "shall design, construct and deliver the vessel" to 653. Finally, because it held all of 653's stock, it could be said that Sun Ship controlled the actions of 653, but the opposite could not be the case. In the sphere of human relationships, children often directly or indirectly control the actions of their parents. The same is not true in corporate families.
Plaintiff's second argument, as we stated above, is that 653 is a joint venturer of Sun Ship, vicariously liable for the torts of its co-venturer committed in the course of conducting the activities of the venture. 653 concedes the general proposition that the maritime law recognizes joint ventures and the liability of joint venturers, see Clinchfield Fuel Co. v. Henderson Iron Works, 254 F. 411 (5th Cir. 1918), and Rowe v. Brooks, 329 F.2d 35 (4th Cir. 1964), but *1316 these cases do not involve claims by employees against a joint venturer in attempted circumvention of the comp bar. 653 submits that, even assuming arguendo that it entered into a joint venture with Sun Ship and would be vicariously liable for Sun Ship's torts, it may nonetheless assert the exclusive remedy provision of the LHWCA because its co-venturer had paid compensation to plaintiff, and thus plaintiff cannot assert a negligence claim against it.
Plaintiff argues that 653 is a third party against whom the Act in § 933(b) states that the employee has an action despite the exclusive remedy provision. This follows, plaintiff says, because the employee gives up only his action against his employer in exchange for the guaranteed compensation, not an action against a third party which is vicariously liable. Plaintiff has been unable, however, to find any case allowing a negligence action against one member of a joint venture where the injured worker had already received compensation under LHWCA or under the applicable state workmen's compensation law. He cites instead cases involving employees of subcontractors who sued the general contractor, alleging negligence of the general contractor. See Probst v. Southern Stevedoring Co., 379 F.2d 763 (5th Cir. 1967); Perry v. Baltimore Contractors, 202 So. 2d 694 (La. App.1967). In both of these cases the courts found that the general contractor was not the worker's employer within the meaning of the applicable compensation law. We find these cases to be inapposite.
The relationship of general contractor to subcontractor is entirely different from that of joint venturers. None of the distinguishing characteristics of a joint venture[14] are present in the general contractor-subcontractor relationship. The general contractor and subcontractor do not, for instance, share the profits of their labors, or have a joint proprietary interest or right of mutual control over the enterprise.[15] A joint venture, on the other hand, is, in a sense, a separate entity. See Fallone v. Misericordia Hospital, 23 A.D.2d 222, 259 N.Y.S.2d 947, 950 (1st Dep't 1965). The joint venture may employ its own workers, pay their social security taxes and withhold taxes from their pay. The participants in the joint venture may be held jointly and severally liable for the debts of the joint venture. For many purposes, a joint venture is treated in the same manner as a partnership.
The separate entity, the joint venture, is the de facto employer of the workers carrying out the purposes of the venture, even though technically the workers may be on the payroll of only one of the venturers and that particular venturer may provide the workers' workmen's compensation coverage. We hold that the joint venture and, derivatively, the participants in the venture, are thus the worker's "employer" for purposes of the Act and thus enjoy the protection of the exclusive remedy provision.
By reaching this conclusion, we are placing the employee of a joint venture in no worse position than an employee of any other entity. If the builder and the owner are not joint venturers, an employee of the builder, injured while constructing a ship for an independent owner, could not, under the facts and law applicable to this case, be able to sue the owner of the ship for negligence because of his absence of control. See discussion, supra. Plaintiff here seeks to use the joint venture concept to link 653 and Sun Ship and thereby hold 653 liable for Sun Ship's torts, while maintaining that, for purposes of the exclusive remedy provision, they are separate entities. We do not think that plaintiff can have his cake and eat it.
653 cites a number of state cases in support of its position. While these cases are not factually indistinguishable from the *1317 cases at bar, they do lend support to our conclusion. In Fallone v. Misericordia Hospital, 23 A.D.2d 222, 259 N.Y.S.2d 947 (1st Dep't 1965), the plaintiff was injured while working on the construction of a hospital which was being built by two construction companies as joint venturers. Plaintiff, who claimed to be an employee of one of the venturers, Vermilya, sued the other one, Industrial, which relied on the exclusive remedy provision as a defense. The court found that the plaintiff was receiving his salary from the joint venture which had also provided a policy of workmen's compensation insurance. The court concluded that the plaintiff was an employee of the joint venture, which was his employer within the meaning of the New York Workmen's Compensation Law,[16] and found Industrial's defense to be a good one:
The joint venture herein obtained . . [workmen's] compensation insurance. We see no reason in law or public policy why such insurance should not insulate the members of the joint venture from liability for negligence where an employee of the joint venture has been injured.
Although here the insurance was obtained by one member of the assumed joint venture,[17] the same policy considerations nonetheless apply.
Another New York court applied the same principle in Felder v. Old Falls Sanitation Co., Inc., 47 A.D.2d 977, 366 N.Y.S.2d 687 (3d Dep't 1975). In that case, the plaintiff was injured while working on a garbage truck owned by defendant Old Falls. Plaintiff was, however, on the payroll of Town, another company. The lower court dismissed plaintiff's action against Town based on the exclusive remedy provision, but allowed him to proceed against Old Falls. The Appellate Division then reversed finding that Town and Old Falls were engaged in a joint venture and thus plaintiff's exclusive remedy against Old Falls was workmen's compensation.
These cases serve to reinforce our conclusion that if 653 and Sun Ship are joint venturers, then plaintiff's negligence claim against 653 is barred by the exclusive remedy provision of the LHWCA. Moreover, plaintiff cannot succeed against 653 because Hull 653 was in the exclusive control of Sun Ship at the time of the accident. 653's motion for summary judgment on plaintiff's negligence claim must therefore be granted.
IV. Conclusion
Plaintiff's unseaworthiness claim must fail because Hull 653 was not a vessel in navigation at the time of the accident. Plaintiff's maritime negligence claim must fail because of the comp bar or exclusive remedy provisions of the LHWCA, notwithstanding plaintiff's highly conceptualized arguments relative to the liability of owners pro hac vice and of joint venturers.
Accordingly, we enter an appropriate order granting defendants' motions for summary judgment and entering judgments in their favor.
NOTES
[1] Plaintiff's wife Catherine Haas has joined as a party plaintiff to assert a claim for loss of consortium. However, because this opinion addressed only matters of liability, we shall refer hereinafter only to "plaintiff."
[2] The defendants have not disputed the existence of admiralty jurisdiction, 28 U.S.C. § 1333, nor could they. The hull was in navigable waters at the time of the accident, and the mere fact that it was not yet a vessel (see discussion, infra) is irrelevant to the exercise of admiralty jurisdiction for a maritime negligence claim. See Williams v. Avondale Shipyards, 452 F.2d 955 (5th Cir. 1971); Dagger v. U.S.N.S. Sands, 287 F. Supp. 939 (S.D.W.Va. 1968); Rogers v. M/V Ralph Bollinger, 279 F. Supp. 92 (E.D.La.1968), all involving accidents on ships under construction. We also have diversity jurisdiction against defendant 653.
[3] Plaintiff has not asserted a state law negligence claim.
[4] This cause of action arose prior to the 1972 amendments to the LHWCA.
[5] Griffith v. Wheeling Steel, 521 F.2d 31, 42 (3d Cir. 1975).
[6] See Roper v. United States, 368 U.S. 20, 82 S. Ct. 5, 7 L. Ed. 2d 1 (1961).
[7] A vessel of this size and potential as a cargo carrier cannot take to sea and ply its trade without governmental sanction. See generally 46 U.S.C. § 1-63. Moreover, the activities in which a new vessel may engage on a master carpenter's certificate (as this hull was) are carefully circumscribed. See 46 U.S.C. § 24.
[8] In fact, plaintiff quotes the court in Rogers v. M/V Ralph Bollinger, 279 F. Supp. 92 (E.D.La. 1968), a case which he relies on in the unseaworthiness section of his brief, as stating, "[T]he warranty of seaworthiness is imposed only upon vessels in navigation. . . . [The term `in navigation'] requires only that the vessel be `engaged as an instrument of commerce and transportation on navigable waters.'" Id. at 94-95.
[8a] 33 U.S.C. § 905, the comp bar provision in effect when this cause of action arose, was reenacted without change in the 1972 LHWCA amendments as § 905(a).
[9] Black's Law Dictionary defines "pro hac vice" as meaning "for this one particular occasion."
[9a] See p. 1312 infra for a discussion of Jackson.
[10] The Ninth Circuit in Arvidson cites a number of other cases arising out of different factual situations in which the courts rejected the notion that Reed extends to negligence claims. See Arvidson v. Dillingham Corp., 462 F.2d 1, 3 n. 7 (9th Cir.), cert. denied, 409 U.S. 983, 93 S. Ct. 321, 34 L. Ed. 2d 247 (1972).
[11] Section 905(b) is intended, among other things, to overrule the Sieracki-Ryan liability of the employer of a longshoreman. Lucas v. "Brinknes" Schiffahrts Ges. Franz Lange G.m. B.H. & Co., K.G., 387 F. Supp. 440 (E.D.Pa. 1974).
[12] The definitional sections, 33 U.S.C. § 902(21) define "vessel" as including the vessel's owner pro hac vice.
[13] However, the matter was remanded to the District Court for resolution of various factual matters which the District Court had not theretofore addressed because of its grant of summary judgment.
[14] See McRoberts v. Phelps, 391 Pa. 591, 599, 138 A.2d 439, 443-44 (1958).
[15] Another reason why the cases cited by the plaintiff are distinguishable is that in them the employees claimed that the general contractors were negligent, not that they were vicariously liable.
[16] The New York law defines "employer" more precisely than the LHWCA (33 U.S.C. § 902). Section 2(3) of the New York law states that "`Employer' . . . means a person, partnership, association, corporation, . . ." The New York law does, however, contain a provision similar to 33 U.S.C. § 933(b) allowing actions against third parties by one who has received or is entitled to workmen's compensation. See New York Workmen's Compensation Act § 29(1) (McKinney Supp.1975).
[17] This distinction would seem to be of little importance considering that here there was no express joint venture agreement. Since Sun Ship and 653 did not conceive of themselves as embarking on a joint venture, it is not surprising that they did not take out a separate workmen's compensation policy.
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153 A.2d 163 (1959)
John J. RONDONI,
v.
Harold V. LANGLOIS.
M. P. No. 1289.
Supreme Court of Rhode Island.
July 8, 1959.
Aram K. Berberian, Providence, for petitioner.
J. Joseph Nugent, Atty. Gen., Edward F.J. Dwyer, Asst. Atty. Gen., for respondent.
CONDON, Chief Justice.
This is an application for a writ of habeas corpus directed to Harold V. Langlois, warden of the adult correctional institutions of this state. Leave to file such application was granted and citation was issued to the respondent to appear on May 1, 1959 and show cause why the petitioner should not be discharged from custody.
The respondent, by the attorney general, duly appeared and contended that petitioner was lawfully in custody as a result of violating his parole. He further argued that none of the reasons alleged in petitioner's application as grounds for his release had any validity. In his brief he pointed out that petitioner had previously applied to the superior court for habeas corpus on the same grounds and that after a hearing thereon his application was denied. The respondent relied upon the reasons given by the justice of that court for his decision and appended a copy thereof to his brief.
The petitioner conceded that he had advanced the same reasons in the superior court in support of his application as he *164 has in his application here but pointed out that the justice of that court did not decide certain constitutional questions. He now seeks a determination of such questions here and certain other questions subsidiary thereto. Briefly he claims that under the parole statute as it existed at the time of his sentence he was entitled to have the time which elapsed while he was on parole and prior to its revocation counted as part of his sentence. And he also claims that any alteration in the parole statute that would have the effect of denying him such benefit could not constitutionally be applied to him. He further claims that while he was on parole he was not actually "free" since he had to comply with certain restrictions on his freedom and therefore his sentence continued to run during that time. We shall hereinafter discuss such claims in more detail.
However, before indulging in a discussion of the applicable law we shall state briefly the events that precipitated the controversy between the parties. The petitioner was sentenced on October 14, 1947 to a term of three years in the men's reformatory and on April 20, 1948 to another term of three years to run consecutively. He was granted a parole on April 10, 1950 on condition that he live in Massachusetts and submit to its parole authorities. He accepted the parole under those conditions which among others were set out in a written agreement with the parole board of this state.
On January 14, 1951 he was arrested in Massachusetts and charged with a serious moral offense. Thereupon the parole board of this state issued a detention warrant but took no action under it pending the outcome of petitioner's trial in Massachusetts which had been set for March 5, 1951. However, he did not appear for trial on that date and his bail was defaulted.
On March 16, 1951 the Rhode Island parole board issued a warrant for his arrest and on April 26, 1951 revoked his parole permit. Thereafter it was discovered that he had been arrested in Connecticut and charged with carrying a concealed weapon. After serving part of a sentence of two to four years in Connecticut state prison he was sentenced on March 18, 1955 to a term of five to seven years in the correctional institutions of Massachusetts on the charge of abuse of a female child. On April 4, 1957 he was arrested and returned to serve the balance of his term in the adult correctional institutions of this state as of the date of his parole.
When he accepted the parole conditions on March 30, 1950 and at the time the parole permit was issued to him on April 10, 1950 the pertinent statute under which parole was granted, general laws 1938, chapter 63, § 17, as amended, did not expressly provide that elapsed time on parole should not be considered part of the original sentence. But by public laws 1946, chap. 1773, the reformatory board of parole was vested with all the powers and duties which were vested in the prison board of parole under G.L. 1938, chap. 617, §§ 3, 5, 6, 7, 8 and 9. And under § 5 there was such a provision.
Pursuant thereto the reformatory board of parole incorporated in paragraph 4 of petitioner's parole agreement the following condition: "I agree that when this permit has been revoked or has become void, as aforesaid, the Parole Board may issue an order authorizing my arrest and my return to the place of confinement, and that I shall be detained therein according to the terms of my original sentence: and in computing the period of my confinement the time between my release upon said permit and my return to the place or [of] my original confinement shall not be considered as any part of the term of my original sentence."
The superior court construed the statute as authorizing the reformatory board to require such a condition in any grant of parole. Consequently since petitioner's parole was granted after 1946 he was bound by that condition to which he had assented *165 in his parole agreement. We agree with the superior court's construction.
However, petitioner contends that such construction renders the parole statute an ex post facto law in so far as it is made applicable to him and that it deprives him of his liberty contrary to the law of the land and in violation of article I, secs. 12 and 10, respectively, of the constitution of this state. He bases those contentions on a right to parole as it existed at the date of his sentence on October 14, 1947.
There is no merit in either contention even on the assumption that he has a vested right to parole, since under the above construction of the statute as it was amended it applied to the reformatory parole board and took effect before the date of his sentence. But there is no merit in the contentions for an even stronger reason. No right to a parole under conditions existing at the time of his sentence ever accrued to him. Indeed, parole is not a right. It is a privilege which the legislature may confer, withhold or withdraw. And the conditions under which it may be obtained may be changed at any time before parole is granted. Consequently the constitutional guaranties cited above and upon which petitioner relies have no application.
The petitioner alleged another constitutional ground in his application under which he questions the right of the legislature to enact the provision with reference to time on parole not being part of the sentence, but since that point has not been briefed or argued it is deemed to be waived. The same may be said of the allegation in "Count Number Two" of his application wherein he questions the authority of the parole board to revoke his parole permit.
After carefully considering all the reasons pressed by the petitioner in his brief and on oral argument, we are of the opinion that the revocation of his parole permit was authorized by the statute, that such statute constitutionally provides that the time which elapsed while the petitioner was on parole should not be considered part of his sentence, and that the legislature did not usurp the prerogative of the judiciary in so providing. Hence the petitioner was lawfully remanded to custody and is lawfully being required to serve the remainder of his sentence without the benefit of any reduction thereof by reason of the time he was on parole.
Therefore the petitioner's application for a writ of habeas corpus is denied and dismissed.
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425 F. Supp. 1218 (1977)
RUSS THOMPSON MOTORS, INC.
v.
CHRYSLER CORPORATION.
Civ. A. No. 76-277.
United States District Court, D. New Hampshire.
January 11, 1977.
Robert E. Hinchey, Burns, Bryant, Hinchey, Cox & Shea, Dover, N. H., for plaintiff.
David L. Nixon, Brown & Nixon, Manchester, N. H., for defendant.
OPINION AND ORDER
BOWNES, District Judge.
This petition for a preliminary injunction was filed in the Superior Court for Strafford County, State of New Hampshire, on September 2, 1976. The defendant removed it to this court by petition filed September 21, 1976.
Jurisdiction is based on diversity of citizenship and amount in controversy.
Two hearings were held, one on December 15th and the other on December 23, 1976.
Injunctive relief is sought not only on the traditional grounds that the plaintiff faces immediate and irreparable injury without an adequate remedy at law, but also on the ground that the defendant violated the terms of N.H. RSA 357-B:4 III(c).
The essential facts can be briefly stated. The plaintiff corporation is operated by Rand Thompson. All of its stock is owned by his mother, Georgianna M. Thompson. *1219 This Chrysler-Plymouth dealership started in 1931 under Rand Thompson's grandfather who operated it until his death in 1951. It was then carried on by his son, Rand Thompson's father, who died in February of 1970, and Rand Thompson has, for purposes of this case, operated it since that time.
The business relationship between the plaintiff under the management of Rand Thompson and the defendant has not been either a profitable or a happy one. In 1975 and 1976, the plaintiff consistently failed to meet the sales quotas for new cars set by the defendant and failed to submit monthly financial statements as provided for in paragraph (7)(A) of the Terms Sales Agreement. Exhibit 5. The failure to file financial statements by the plaintiff made it impossible for the defendant to determine if the plaintiff maintained a net working capital of $60,800 as required in paragraph (7)(C) of the Agreement.
On March 31, 1975, plaintiff and defendant executed a Term Sales Agreement. Exhibit 5. Paragraph (6) provided:
This arrangement will become effective on the date of execution hereof and, if not previously terminated as provided in Paragraph 21 of said Direct Dealer Agreement(s), will continue in effect for a period of twelve (12) months from said date, at which time this Agreement will terminate automatically without notice to or by either party.
In November of 1975, Joseph F. Prout, District Sales Manager for the defendant, informed Rand Thompson that the plaintiff had not lived up to the provisions of the Term Sales Agreement. Rec., Dec. 23, pp. 78-80.
On January 19, 1976, there was a meeting in Framingham, Massachusetts, at which Rand Thompson, his attorney, William Galanes, the regional zone manager, the assistant zone manager, and district sales manager for the defendant were present. At that meeting, Thompson was informed that the Term Sales Agreement would not be extended. After being asked if he would voluntarily terminate on a thirty-day notice rather than wait for a ninety-day termination (notice), Thompson declined to terminate voluntarily. Rec., Dec. 23, pp. 81-83.
No written termination notice was sent to the plaintiff prior to March 31, 1976. On April 21, Thompson asked Prout why he had not received the termination notice yet. Rec., Dec. 23, p. 98.
On July 9, 1976, a sixty-day termination notice was hand delivered to the plaintiff. Exhibit 1.
The issue is whether, under these facts, a preliminary injunction should issue. The criteria for resolving this are well established.
"The standards which should guide the decision to grant a preliminary injunction have been often stated. The movant must show a substantial likelihood of success on the merits, and that irreparable harm would flow from the denial of an injunction. In addition, the trial judge must consider the inconvenience that an injunction would cause the opposing party, and must weigh the public interest as well." Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111, 1116 [1969]. Pauls v. Secretary of Air Force, 457 F.2d 294, 298 (1st Cir. 1972).
In addition to the usual two requirements of irreparable harm and probability of success on the merits, I must also consider the effect and meaning of the statute. N.H. RSA 357-B:4 III(c) provides that it shall be unlawful for a manufacturer
to terminate or cancel the franchise or selling agreement of any such dealer without due cause. The non-renewal of a franchise or selling agreement, without due cause, shall constitute an unfair termination or cancellation, regardless of the terms of provisions of such franchise or selling agreement. Such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, or officer, agent or other representative thereof shall notify a motor vehicle dealer in writing of the termination or cancellation of the franchise or selling agreement of such dealer at least sixty days *1220 before the effective date thereof, stating the specific grounds for such termination or cancellation; and such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, or officer, agent or other representative thereof shall notify a motor vehicle dealer in writing at least sixty days before the contractual term of his franchise or selling agreement expires that the same will not be renewed, stating the specific grounds for such nonrenewal in those cases where there is no intention to renew the same, and in no event shall the contractual term of any such franchise or selling agreement expire without the written consent of the motor vehicle dealer involved, prior to the expiration of at least sixty days following such written notice. During said sixty day period, either party may in appropriate circumstances petition a court to modify said sixty day stay or to extend it pending a final determination of such proceedings on the merits. The court shall have authority to grant preliminary and final injunctive relief and such petition shall be entitled to a speedy trial.
This section of the statute makes it unlawful to terminate or cancel the franchise or selling agreement of any automobile dealer without due cause and imposes specific notice requirements on a manufacturer seeking to terminate an automobile dealership.
Based on the evidence presented, which I limited to the years 1975 and 1976, I find that there was due cause for termination. The evidence establishes conclusively that the plaintiff had not met the requirements of paragraphs (7)(A), (B), and (C) of the Agreement.
The next question is whether the defendant complied with the notice requirements of the statute. The type of selling agreement we have here cannot be terminated unless the manufacturer gives written notice to the dealer at least sixty days before its expiration date. This was not done. The Term Sales Agreement, therefore, was not "terminated automatically" on March 31, 1976, as called for in paragraph (6). The statute operated to extend the Agreement indefinitely.
When there is no definite contractual period or when a contract is to be terminated before the end of a definite term, the statute requires that a manufacturer notify a dealer in writing of the termination or cancellation "at least sixty days before the effective date thereof, stating the specific grounds for such termination or cancellation."
I find that the July 9 letter, Exhibit 1, met all the statutory requirements of notice, including the required statement of "the specific grounds" for cancellation.
While there may be irreparable harm to the plaintiff if the dealership is terminated, there is not a probability of success on the merits. Indeed, the contrary is indicated.
The motion for preliminary injunction is denied.
The following specific rulings are made as to pending motions:
1. All exhibits marked for identification at the hearing shall remain so marked.
2. The plaintiff's motion to strike exhibits and offer of proof is granted.
3. The plaintiff's motion to amend petition for preliminary injunction is granted.
4. The defendant's motion for reference to a Master is denied.
SO ORDERED.
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153 A.2d 313 (1959)
Elizabeth Ann BELL, an infant, by her mother and next friend, Mary Lou Sansbury, and Mary Lou Sansbury, Appellants,
v.
Jean E. MYRTLE, Appellee.
No. 2364.
Municipal Court of Appeals for the District of Columbia.
Argued April 6, 1959.
Decided July 7, 1959.
*314 Sidney A. Cohen, Washington, D. C., with whom Joseph D. Bulman, Washington, D. C., was on the brief, for appellants.
William T. Clague, Washington, D. C., with whom Allan C. Swingle, Washington, D. C., was on the brief, for appellee.
Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.
QUINN, Associate Judge.
This was a suit to recover damages for personal injuries received by the infant plaintiff and for expenses incurred in her behalf by her mother. From a jury verdict in favor of defendant, plaintiffs appeal, contending that the trial court erred in not permitting a police officer to give his opinion as to the approximate speed of defendant's vehicle at the time of impact, and in refusing plaintiffs' instruction relating to the doctrine of last clear chance.
The accident occurred in the District of Columbia when defendant was driving south through a school zone on Minnesota Avenue. Defendant was in the second lane of traffic, and for at least a block and a half she proceeded almost abreast of another automobile driven by one Stockett, who was in the curb or right-hand lane. She noticed the Stockett car stopping, slowed her vehicle, saw the child two feet in front of her, and struck her instantaneously. Defendant testified that she placed her foot on the brake pedal immediately; that her foot slipped off and struck the accelerator; that *315 she then reapplied the brake and brought the car to a stop. A passenger in the car, seated on her right, substantially corroborated defendant's testimony. There was testimony that defendant's vehicle traveled 48 feet from the point of impact, laying down skid marks for the last 20 feet.
A police officer from the Accident Investigation Unit, who apparently arrived shortly thereafter, test-skidded defendant's vehicle at the scene and found that at 15 miles per hour, the skid marks equaled 20 feet. Calling the officer as a witness, plaintiffs asked him "taking into account his training and his experience in over 400 or 500 pedestrian cases, the test-skid that he performed, the damage to defendant's automobile, if he could tell the approximate speed of defendant's vehicle at the time of impact." The court refused to permit this testimony on the ground that it would be speculative, and the further ground that the officer was not qualified.
A witness in the Stockett car testified that she was seated in the right front seat. She saw the child suddenly step off the curb into their path and, when they came to a sudden stop without striking her, the child either retreated toward the curb or paused and then proceeded across the street, at which time she was struck by defendant's vehicle when it reached a point two feet ahead of their car.
A police crossing guard, who was stationed at the southeast corner of the intersection of Minnesota Avenue and Ely Place, testified that she twice saw the child attempting to cross the street just before the accident. She blew her whistle and the child retreated. The guard noticed that the child's eight-year-old sister, who had crossed on ahead, was urging the child to cross when the accident occurred. It should be noted that the place where the child attempted to cross the street was not at a crosswalk.
There was admitted into evidence a photograph of defendant's car which displayed the front of the vehicle with a dent in the hood. This photograph, along with the testimony of the witnesses who observed the accident, was the only evidence as to the speed of the car at the time of impact. The police officer called as an expert was not present at the scene of the accident. Plaintiffs contended that the officer was qualified as an expert to testify on the speed of defendant's vehicle at the time of impact, and that the facts in the record called for an instruction on the doctrine of last clear chance. The trial court ruled on each question for defendant, and with those rulings we agree.
When plaintiffs asked the police officer for his opinion, they attempted to bring that witness within an exception to the well recognized rule which limits opinion evidence.[1] The exception admits the opinion of an expert, one qualified because of his knowledge, skill, or training to draw conclusions and inferences from facts, because a jury, considering those facts, is not capable of deducing correct conclusions.
As a general proposition, we have no doubt that a trained police officer may be qualified as an expert concerning the speed of automobiles. However, the trial court was correct in ruling that this officer was not qualified to render an opinion on the facts presented to him.
An expert may offer testimony concerning the relationship of skid marks to the speed of an automobile,[2] or state the speed at which a vehicle must be driven to cause a certain skid mark. This police officer was not asked to do that, and we express no opinion on the relevance of such a question considering these facts. However, for an expert to unequivocally state or approximate the speed of an automobile at a *316 given point along its path, from skid marks formed sometime after that point, and not running back to it, would be to invite incompetent testimony.[3] In that case, he must support his opinion with other substantial facts, such as personal observation.[4] This the police officer was asked to do without those supporting facts, and the trial court properly ruled that he could not because it would be speculative; it would be without sufficient factual foundation.[5]
We do not limit here the introduction of relevant testimony from a properly qualified expert witness concerning the relationship between skid marks and speed of a vehicle. We do say, however, that for an expert witness to observe only skid marks and then go further by saying this vehicle traveled at a certain speed at another point, something more must be present. That something is, usually, personal observation. Here, the officer's opinion of the speed of the car at the time of impact would, of necessity, be based on conjecture.
We also think the court was correct in refusing the requested instruction on the doctrine of last clear chance. We recently said of this doctrine:
"The applicability of the doctrine of last clear chance has been enunciated in a number of cases in the District. It presupposes a perilous situation caused by the negligence of both the plaintiff and the defendant; it assumes that after the situation had been created there was a time when the defendant could, and the plaintiff could not, avoid the accident. The doctrine is not applicable if the emergency is so sudden that there is no time to avoid the collision, as the defendant is not required to act instantaneously."[6]
To have granted the instruction would have injected into the case a proposition which had no reasonable basis in fact.
Affirmed.
NOTES
[1] For a suggested standard in applying this rule, see 7 Wigmore, Evidence § 1918 (3d ed. 1940).
[2] B-Line Cab Co. v. Hampton, Ky.1952, 247 S.W.2d 34; see Madden v. Killinger, Fla.App.1957, 97 So. 2d 205. Annotation, 23 A.L.R. 2d 112, 141 (1952).
[3] B-Line Cab Co. v. Hampton, supra; accord, Thompson v. South Carolina, 1953, 224 S.C. 338, 79 S.E.2d 160. See also, Carroll v. Hayes, 1958, 98 Ga.App. 450, 105 S.E.2d 755, 757-758. But see, Padgett v. Buxton-Smith Mercantile Co., 10 Cir., 1958, 262 F.2d 39.
[4] B-Line Cab Co. v. Hampton, supra note 2.
[5] See Stephanofsky v. Hill, 1950, 136 Conn. 379, 71 A.2d 560, discussed in Floyd v. Fruit Industries, 1957, 144 Conn. 659, 136 A.2d 918, 922, 63 A.L.R. 2d 1378. Cf. Giant Food Stores, Inc. v. Fine, D.C.Cir., 269 F.2d 542.
[6] Griffin v. Anderson, D.C.Mun.App.1959, 148 A.2d 713, 714.
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475 S.W.2d 797 (1972)
Harold Dee PALMER, Appellant,
v.
The STATE of Texas, Appellee.
No. 44290.
Court of Criminal Appeals of Texas.
January 26, 1972.
Second Rehearing Denied February 23, 1972.
Melvyn Carson Bruder, Dallas (Court appointed on appeal), for appellant.
Henry Wade, Dist. Atty., and John B. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ON MOTION FOR REHEARING
DAVIS, Commissioner.
Our Opinion on original submission is withdrawn and the following is substituted in lieu thereof.
This is an appeal from a conviction for possession of heroin with punishment assessed at life by the jury.
The record reflects that after obtaining a search warrant to search appellant's motel *798 room for marihuana, Officer Anderton of the Dallas Police Department went to the motel where appellant was staying, and after observing appellant through the blinds, which were down, but not closed, on the bed with a hypodermic syringe in his hand, Officer Anderton and two other officers broke into the room, arrested appellant and seized, among other items, packets of powder which Dr. Mason of the Dallas Criminal Investigation Laboratory testified he found to contain heroin.
Appellant first complains of the admission into evidence of the fruits of an illegal search and seizure.
At the penalty stage of the trial, the appellante testified that his leg had been amputated and that he did not receive any prescriptions for any type of drug that would relieve the pain after leaving the hospital. In response to a question about where he bought the heroin, the appellant answered, "I didn't buy it, I was welcome to it." After testifying about the pain he had experienced, appellant was asked if he had taken a shot the day of the arrest, and appellant answered, "No. I would have in just a few more minutes, though." Appellant further testified that a Raymond Harris, whose whereabouts were unknown to appellant on the day of the trial, left the heroin with him, "He just told me that whatever I wanted or needed I could have. He didn't expect me to pick up everything he had and walk off with it."
In Richardson v. State, Tex.Cr.App., 458 S.W.2d 665, this court held that where the appellant voluntarily went before the jury at the penalty stage of the trial, in answer to his own counsel's questioning, admitted that he had made a mistake, and asked for mercy, that no Fifth Amendment right is violated, and by employing such trial strategy, appellant cannot question the sufficiency of the evidence or question the incourt identification of the prosecutrix.
In Boothe v. State, 474 S.W.2d 219 (1971), this court rejected appellant's contention of insufficient evidence to support possession of marihuana conviction where appellant testified at the penalty stage of the trial that he placed the three bags of marihuana in the building and possessed it as well as that in the car.
In the instant case, the appellant took the stand at the penalty stage of the trial and explained that his leg had been amputated; that he had experienced pain from same, and that his doctor had not prescribed any medicine to relieve the pain. It is apparent from appellant's testimony that he was attempting to mitigate the circumstances of the offense. The fact that the admission by the appellant that he possessed the heroin was in response to questions on cross-examination which were not improper in view of appellant's testimony on direct does not distinguish this case from the Richardson and Boothe cases. The appellant having voluntarily taken the stand at the penalty stage and admitted having heroin in his possession cannot question the lawfulness of the search wherein the heroin was seized. Further, we need not consider the validity of the search warrant because we have concluded that the officers were authorized to seize the heroin during a search incident to appellant's arrest.
Article 14.01, Vernon's Ann.C.C.P., provides that a law enforcement officer may arrest "an offender without a warrant for any offense committed within his presence or within his view." Article 725b, Sec. 2(c), V.A.P.C., makes it unlawful to possess a hypodermic syringe adapted for subcutaneous injection of narcotic drugs unless such syringe is possessed for a use authorized by a licensed physician. Officer Anderton testified that, upon approaching a motel room, he could see appellant through the window of the room sitting on the bed with a hypodermic syringe in his hand. Officer Anderton's testimony on this point was substantiated by Officer McMillan. The officers having made this *799 observation from a place where they had a right to be, they had probable cause to make a warrantless arrest of appellant. See Gil v. State, Tex.Cr.App., 394 S.W.2d 810; Capuchino v. State, Tex.Cr.App., 389 S.W.2d 296; Ponce v. Craven, 409 F.2d 691 (9th Cir. 1969), cert. denied, 397 U.S. 1012, 90 S. Ct. 1241, 25 L. Ed. 2d 424.
The packets of heroin were found in appellant's hand. Thus, the scope of the search was within the limits required by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). No error is shown.
Appellant contends that the State elicited prejudicial comments from a State's witness, McWethy, relating to the appellant being a criminal generally. The question and answer complained of are:
"Q All right. You testified on cross-examination from defendant's counsel that you had told the intelligence section of the Dallas Police Department that if they were ever going out to visit Mr. Palmer you would like to go with them, that you had an interest in him. Is that correct?
"A Yes, sir, that's correct.
"Q What interest was that?"
The objection to the last question was sustained. The appellant had on cross-examination elicited the following testimony from U. S. Secret Service Agent McWethy:
"Q How did you actually become involved in participating in the search that night?
"A I called the intelligence division and advised them that we had an interest in Mr. Palmer and requested that if they had an occasion to arrest or search him, we would like to participate."
The State placed nothing in evidence but that which appellant had already elicited from the witness.
Appellant contends he was deprived of a fair trial when the State introduced copies of judgment, sentence and probation revocation against appellant at the punishment stage of the proceedings in violation of his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States and under Article 1, Section 10 of the Texas Constitution, Vernon's Ann.St. The State introduced, without objection, evidence that appellant had been convicted in Van Zandt County in 1958, Cause No. 11,462, for burglary; a copy of the sentence which was probated on same date, and the order revoking said probation in 1960. The judgment of conviction recites that appellant was represented by counsel, but the order of revocation is silent as to counsel.
This court held in Gutierrez v. State, Tex.Cr.App., 456 S.W.2d 84, that the recitation in judgments that appellants was represented by counsel is binding upon him in the absence of direct proof to the contrary. See also Mason v. State, Tex.Cr.App., 459 S.W.2d 855.
In Taylor v. State, Tex.Cr.App., 470 S.W.2d 663, this court held that the trial court did not err in admitting into evidence at the penalty stage of trial certified copies of judgment and sentence which were silent as to whether defendant had been represented by counsel where no objection was urged at time documents were introduced and no claim was advanced that defendant was, in fact, deprived of counsel. See also Vera v. State, 473 S.W.2d 22, (1971). We find the court was not in error in allowing into evidence certified copies of the judgment, sentence and order revoking probation at the penalty stage of the trial when no objection to their offer was made by appellant.
Appellant's other contentions concern the introduction of evidence by the State at various stages of the trial. We have examined the record and find that no objection was raised by the appellant at the *800 time State offered the evidence and that complaint is made for the first time on appeal. Failure to object when evidence is offered precludes review by this court. Lopez v. State, Tex.Cr.App., 468 S.W.2d 365.
Finding no reversible error, the judgment is affirmed.
Opinion approved by the Court.
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475 S.W.2d 817 (1972)
In re Julie Elaine JONES.
No. 4520.
Court of Civil Appeals of Texas, Eastland.
January 7, 1972.
Rehearing Denied February 4, 1972.
Brooks, Jones & Gordon, George D. Jones, Abilene, for appellant.
Schulz, Hanna & Burke, Malcolm Schulz, Abilene, for appellee.
McCLOUD, Chief Justice.
This is a contested adoption case. Frank Peck filed a petition seeking to adopt Julie Elaine Jones the twelve year old daughter *818 of his present wife, Lois Peck, and her former husband, W. B. Jones, Jr. Petitioner contended that the consent of the natural father of the child was not necessary because the natural father had failed to contribute to the support of the child for a period of two years commensurate with his financial ability. W. B. Jones, Jr., the natural father, appeared and contested the adoption. The trial court granted the adoption. W. B. Jones, Jr. appeals. We affirm.
Appellant's first three points complain of the trial court's refusal to grant him a jury trial. He contends that he was entitled to a jury trial on the fact question of whether or not he failed to contribute to the support of his daughter for a period of two years commensurate with his financial ability.
The applicable authorities are discussed in In Re Adoption of Pate, 449 S.W.2d 372 (Tex.Civ.App. 1969, no writ) where the Court, we think, correctly held that a party is not entitled to a jury trial in an adoption proceeding. The Court said:
"Appellant relies on Article I, Section 15, of the Bill of Rights to the Texas Constitution, which provides `the right of trial by jury shall remain inviolate', and he cites Article V, Section 10, Texas Constitution, providing: `In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; * * *' There are a number of proceedings in the district courts in which a jury may be denied, and adoption is one of them. The most often cited case is Hickman v. Smith, Tex.Civ.App., 238 S.W.2d 838 (1951), as to which the Supreme Court refused writ of error. Basis of the court's holding is that the right of trial by jury as guaranteed by the Constitution of Texas is limited to the right as it existed at Common Law or as provided by statutes in effect when our Constitution was adopted in 1876. The Court noted that adoption was unknown to the common law and that the adoption statute in effect in 1876 had no provision for a jury trial. The court then held that, since Article 46a `validly and plainly makes it the duty of the trial court or judge, as distinguished from a jury, to grant or deny a petition for adoption as in his discretion the facts and welfare of the child require', the trial court did not err in denying a trial by jury. Cited as authority for its holding are Oldfield v. Campbell, Tex.Civ.App., 191 S.W.2d 897 (n.w.h.); Davis v. Collins, 147 Tex. 418, 216 S.W.2d 807. Later cases adhere to the same ruling, the latest being Fearrington v. Wright, Tex.Civ.App., 410 S.W.2d 855 (wr. ref. n.r.e.). Of equal dignity to the provision for trial by jury is the provision of the Texas Constitution, Article V, Section 8, that the district court shall have original jurisdiction and general control over minors `under such regulations as may be prescribed by law'. The Legislature, by Article 4639a, V.A.T.S., has provided for jury trial in child custody cases, but no such provision has been made for adoption proceedings."
We hold that the denial of a jury trial was not error and appellant's first three points of error are overruled.
Appellant's points four and five state that there was no evidence or the evidence was factually insufficient to support the trial court's finding that he failed to contribute to the support of his child for a period of two years commensurate with his financial ability. It is uncontroverted that no support payments were made, either directly or into the registry of the court, from December 1968 until January 1971. The record contains evidence that during this period appellant received income from his father's estate and also received some rent income. There is no showing that he was ill or disabled. We hold that the record contains some evidence of probative *819 force to support the trial court's finding that appellant failed to contribute to the support of his child for a period of two years commensurate with his financial ability. Also, we have carefully considered the entire record and hold that the evidence was not factually insufficient to support the trial court's finding.
In his sixth point appellant says the trial court abused its discretion in finding that it was in the best interest and welfare of the child to grant the adoption. The investigator's report contains information in support of the finding. This report is to be considered by the trial court. Hickman v. Smith, 238 S.W.2d 838 (Tex. Civ.App., 1951, writ ref.). We cannot say that the trial court abused its discretion. We overrule appellant's sixth point of error.
In the seventh point appellant contends the trial court lacked jurisdiction to enter the judgment granting the adoption for the reason that there was no compliance with Section 4 of Article 46a, Vernon's Ann.Tex.Civ.St. in that the Department of Public Welfare was not notified of the change of time for the hearing. In 1969, the Legislature amended Section 4 of Article 46a by adding the following provision:
"On or before the date set for hearing, the court may, for good cause shown, change the time of the hearing to any day after the day on which the report of the investigation is presented to the court, not to exceed sixty (60) days, and to a day not less than five (5) days after the State Department of Public Welfare is notified, in the manner provided in Section 1b, that the day of the hearing has been changed."
Section 1b of the act provides for mailing a certified copy of the petition to the Director of Public Welfare by the district clerk who shall note on the docket the date of mailing.
The record reflects that the petition was filed on January 19, 1971, and the hearing was set for March 11, 1971. Petitioner filed a motion for continuance on March 5, 1971, because appellant was not served until February 22, 1971. The hearing was then continued until March 24, 1971. On that date appellant filed a motion for continuance, which was granted and the cause was continued until April 2, 1971. The hearing was held on April 7, 1971. The State Department of Public Welfare was not notified that the time for the hearing had been changed.
We find no cases interpreting the 1969 amendment. However, we think it is abundantly clear that the language contained in the amendment is directory only. The Court in Smith v. Curtis, 223 S.W.2d 712 (Tex.Civ.App. 1949, no writ hist.) was confronted with a similar problem. There the clerk failed to comply with all of the directives of Section 4. The clerk failed to note the date in the clerk's docket of mailing of the certified copy to the Executive Director of the Department of Public Welfare and the trial court did not hear the petition on the date fixed in its order. There as here, it was argued that the trial court did not have jurisdiction to grant the adoption. The Court said:
"It will be noted that the sections of the adoption statute which are material to a passing upon the questions here, merely order that certain formalities be observed by the judge and clerk; but there are other sections in the statute which set out that the adoption cannot be consummated unless complied with....
In considering legislative intent, we have concluded that the matters here complained of do not affect the jurisdiction of the court, or its right to proceed with the trial of the case, but are directory only, since the Legislature specifically set out those matters which should be present before a judgment of adoption could be rendered. Having provided *820 specifically the things necessary before a judgment could be entered, the legislature, by implication, excluded as mandatory the procedural matters involved here."
We have considered all of appellant's points of error and all are overruled. The judgment of the trial court is affirmed.
WALTER, J., not participating.
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153 A.2d 180 (1959)
Norman EPSTEIN and Minnette Pilot Epstein, Plaintiffs,
v.
CHATHAM PARK, INC., a Delaware corporation, George H. Dovenmuehle, George H. Dovenmuehle, Jr., Elizabeth D. Rothermel, Theodore H. Buenger, Edna D. Buenger, Richard E. Buenger, Lester Crown, Robert Crown, John Crown, Gladys Crown, Leon Mandel, Howard M. Goodspeed, C. Wallace Johnson, Inc., an Illinois corporation, Leonard Gordon, Julius J. Schwartz, Victor Nemeroff, Arnold H. Maremont, David E. Bright, Benjamin E. Mittelman, Samuel E. Mittelman, Franklin-Adams Company, an Illinois corporation, and Cottage 83 Company, a Delaware corporation, Defendants.
No. 303, 1955.
Superior Court of Delaware, New Castle.
June 24, 1959.
*181 Norman Epstein and Minnette Pilot Epstein, pro se.
William S. Megonigal, Jr., of Morris, Nichols, Arsht & Tunnel, Wilmington, Frank C. Bernard, Chicago, Ill., of counsel, for defendants.
WOLCOTT, Justice.[1]
This action was commenced on April 4, 1955 by foreign attachment. The attachments *182 resulted in the seizure of substantial property of the appearing defendants, still held in custodia legis. On December 3, 1956 the defendants moved for summary judgment on the basis of an Illinois decree alleged to be a bar to the maintenance of the action.
Subsequently the action became a contest between the defendants seeking to bring on for decision their motion for summary judgment and the plaintiffs seeking to delay decision on that motion until after the completion of certain discovery and garnishment proceedings. This contest has resulted in a court file of over 200 separate motions, petitions and affidavits. However, nothing of any consequence has been decided.
It would serve no useful purpose to catalogue the varied maneuvers and charges of prejudice, fraud and conspiracy that have been made. It will suffice to say that the ultimate result of these procedural tactics was the voluntary disqualification of all the Judges of the Superior Court for the reason that their impartiality had been made impossible, and the present assignment.
After reviewing the voluminous record, I concluded that the defendants' motion for summary judgment should be brought on for decision since, in my opinion, it raised a legal defense which might be a bar to further prosecution of the case. This opinion is the decision on that motion.[2]
The complaint sets out two separate causes of action growing out of the sale and purchase of an apartment house project in Chicago, of which Chatham Park, Inc. (hereafter Chatham), defendant herein, was owner. The plaintiffs claim to be entitled to usual real estate brokers' commissions in the amount of $121,250. In addition, they claim a fee of $100,000 for having procured a mortgage loan used by the purchaser to consummate the purchase.
Plaintiffs' version of the circumstances surrounding the claim for the brokers' commission is that Chatham engaged them to find a purchaser for the project, agreeing to pay the usual commission. The plaintiffs procured a group of purchasers who organized Cottage 83 Company (hereafter Cottage), defendant herein, which consummated the purchase for $3,875,000. Prior to the consummation of the purchase, the purchasing group agreed to pay the plaintiffs' commission, which obligation was assumed by Cottage, but Chatham nevertheless guaranteed payment of the plaintiffs' commission.
With respect to the claim for the procuring fee, the plaintiffs' version is that the purchasing group, acting through two of its members, Benjamin E. Mittelman and Samuel E. Mittelman, (hereafter Mittelmans), non-appearing defendants herein, agreed with them that if they procured a mortgage loan in the amount of $2,800,000 to be used in the purchase, the purchasers would pay the plaintiffs a fee of $100,000. Cottage thereafter assumed this obligation. The plaintiffs claim to have procured the mortgage loan.
As parties defendant, the plaintiffs joined Chatham, Cottage, and twenty other defendants, among whom were included all the members of the purchasing group which organized Cottage, the ultimate purchaser. Also named as a defendant was a Chicago broker, Howard M. Goodspeed (hereafter Goodspeed).
Writs of attachment were issued as a result of which shares of stock in Chatham and Cottage, Delaware corporations, standing in the names of some of the defendants were seized. As a result, the owners of the stock appeared generally in the cause. Among the defendants whose property has not been seized and who have thus not appeared *183 are the Mittelmans.[3] Since that time the plaintiffs have persistently sought discovery to prove their contention that the Mittelmans are beneficial owners of Cottage stock, and that, as such, they have property in Delaware subject to attachment.[4] The plaintiffs argue that jurisdiction over the Mittelmans is necessary to the decision of the cause.
By answer of Chatham and Cottage, later adopted by all of the appearing defendants, a different version of the circumstances surrounding the matter is alleged. The defendants assert that Chatham authorized the Chicago real estate broker, Goodspeed, defendant herein, to obtain a purchaser for the project upon the express conditions that Chatham would not be responsible for any commission and that Goodspeed would look solely to any purchaser for his commission. Goodspeed thereupon associated himself with another Chicago broker, Norman Shogren, (hereafter Shogren).[5] Thereafter, upon the plaintiffs' representation to Shogren that they had a prospective purchaser, the four brokers agreed to work together upon the sale, agreeing that they would collect their commission from the ultimate purchaser. On several occasions thereafter the four brokers agreed specifically with Chatham that it would not be liable for any commission.
Prior to the consummation of the purchase, the four brokers agreed with the purchasing group ultimately formed that it would pay a single commission of $75,000.00 to the four brokers jointly, as full compensation for their complete services. The obligation thus agreed upon was assumed by Cottage. The defendants deny that the plaintiffs procured a mortgage loan used in the purchase and, in any event, aver that the single commission of $75,000 covered all services performed by the brokers.
As an affirmative defense the appearing defendants interposed a decree of the Circuit Court of Cook County, Illinois, entered in an action entitled, Cottage 83 Company, et al. v. Norman Epstein, et al., General No. 55C5585, as a bar to the maintenance of this action in Delaware. In addition to pleading the Illinois decree[6] the defendants, by affidavit, supplemented the Delaware record with authenticated portions of the Illinois record and moved for summary judgment.
The action in Illinois raised as a bar was commenced by Cottage and Chatham as an action in the nature of interpleader by reason of a demand made by Goodspeed and Shogren, two of the four brokers involved in the transaction, for payment of brokerage commissions allegedly due them for their services in connection with the purchase and sale of the apartment project.
The complaint filed in Illinois alleges the same circumstances surrounding the purchase and sale of the project as are alleged in the answer herein. Cottage admitted liability for brokerage commissions in the total amount of $75,000 and prayed for leave to deposit that sum in court together with a bond in the amount of $100,000 conditioned upon payment of any amount in excess of $75,000 which might be awarded the four brokers. To induce the Illinois court to take jurisdiction, Cottage alleged the pendency of this action in Delaware and *184 the absence here of an indispensable party, viz., Shogren.
The Illinois court took jurisdiction of the cause. All the parties thereupon pursuant to order interpleaded among themselves with the exception of the plaintiffs here who, although served personally with process in Illinois, let the matter go by default.[7] The Circuit Court referred the cause to a Special Master whose report was confirmed by a decree entered July 3, 1956. From this decree one of the plaintiffs here, Minnette Pilot Epstein, appealed to the Supreme Court of Illinois. The appeal was later dismissed, apparently for failure to perfect the record. Finally, on March 1, 1957, the Circuit Court of Illinois denied a motion by the Delaware plaintiff, Minnette Pilot Epstein, to vacate the order of default and the decree of July 3, 1956.
The motion for summary judgment, based as it is upon the undisputable fact of a properly authenticated record of an Illinois court, raises only questions of law for decision. There is no factual issue with respect to the decree. I conceive these questions to be two, viz., first, is the Illinois decree, on its face, under the doctrine of res judicata, a bar to the maintenance of this action, and, second, if it is such a bar, must it be sustained against collateral attack by the plaintiffs in this action. I will consider these questions in the order stated.
The doctrine of res judicata is common to all civilized systems of jurisprudence, and is based upon the salutary concept that the solemn decision of a competent court upon a disputed state of facts should forever set the controversy at rest. It embodies a rule of public policy that courts as well as litigants should have rest and repose from the vexatious renewal of the same law suit. Without the doctrine court systems would become impotent to perform their most important function, that of ascertaining and enforcing rights, for without it litigation would be endless. The doctrine rests upon the reasonable premise that a party who has once litigated, or has had the opportunity to litigate, the same matter before a court of competent jurisdiction, must thereafter hold his peace.
The doctrine of res judicata, briefly stated, is that a final judgment upon the merits rendered by a court of competent jurisdiction may, in the absence of fraud or collusion, be raised as an absolute bar to the maintenance of a second suit in a different court upon the same matter by the same party, or his privies. 30 Am.Jur., Judgments, § 324; 50 C.J.S. Judgments § 592; Williams v. Daisey, 7 W.W.Harr. 161, 180 A. 908; Iowa-Wisconsin Bridge Co. v. Phoenix Finance Corp., 2 Terry 527, 25 A.2d 383, certiorari denied 317 U.S. 671, 63 S. Ct. 79, 87 L. Ed. 539. Nor, as a matter of fact, need the second suit be upon the identical cause of action for the prior judgment to act as a bar, for it suffices if the prior judgment has determined issues of fact raised by the pleadings essential to the maintenance of the second action, even though in form the second action differs from the first. Worknot v. Millen's Adm'r, 1 Har. 139; Jones v. Charles Warner Co., 2 Boyce 566, 83 A. 131; Venetsanos v. Pappas, 21 Del. Ch. 177, 184 A. 489; Iowa-Wisconsin Bridge Co. v. Phoenix Finance Corp., supra; Coca-Cola v. Pepsi-Cola Co., 6 W.W.Harr. 124, 172 A. 260.
The most ordinary instance in which the doctrine is evoked is that of a suit brought later in point of time to the suit in which the judgment raised as a bar has been obtained. The ordinary sequence of time, however, is not a sine qua non to the availability of the doctrine as a defense, *185 for it is equally applicable in the case of a judgment rendered in a suit brought subsequent to the suit in which it is raised as a bar. The only requirement in this respect is that the judgment shall be valid and final. Restatement, Judgments, § 43; 30 Am.Jur., Judgments, § 362; 50 C.J.S. Judgments § 602.
There is a difference of view among the jurisdictions as to when a judgment obtains the requisite finality, but all jurisdictions agree that after the expiration of the appeal time, after affirmance on appeal, or after an appeal has been taken but dismissed for failure to perfect, the judgment has obtained finality. 30 Am. Jur., Judgments, § 342; 50 C.J.S. Judgments § 640.
Applying the foregoing general principles to the case at bar, it therefore appears, if the Illinois decree on its face is to be held a legal bar to the maintenance of this action, that the following requisites must be satisfied:
1. The Circuit Court of Cook County, Illinois, had jurisdiction of the subject matter of the suit and of the parties to it.
2. The parties to the Illinois action were the same as the parties, or their privies, in the case at bar.
3. The cause of action in Illinois was the same as that in the case at bar, or the issues necessarily decided in the Illinois action were the same as those raised in the case at bar.
4. The issues in the Illinois action were decided adversely to the contentions of the plaintiffs in the case at bar.
5. The Illinois decree is a final decree.
I will consider these in the order stated.
Clearly, the Circuit Court of Cook County had jurisdiction of the subject matter before it. By Article VI, § 12 of the Illinois Constitution, S.H.A., the Circuit Courts are vested with original jurisdiction of all causes in law and equity, and are, therefore, courts of general jurisdiction. Walton v. Albers, 380 Ill. 423, 44 N.E.2d 145. The action in the Circuit Court was one in the nature of interpleader, which, under Illinois law, may be commenced by a party, not a mere stakeholder, as would be the case in a strict interpleader action, but one who does not admit liability for the whole of the claim made upon it. Foerster v. Enzenbacher, 178 Ill. App. 551; Nelson v. Urban, 236 Ill.App. 447.
It is equally clear that the Circuit Court of Cook County had jurisdiction of the parties to the action before it. The action in Illinois was commenced by Chatham and Cottage, Delaware corporations doing business in Illinois, and all of the appearing defendants either were served personally with summonses as residents of Illinois, or voluntarily appeared in the cause generally. Included among the defendants in Illinois were the plaintiffs in the case at bar who were served personally with process within Illinois.
There can be no question of the identity of parties between the action in Illinois and the case at bar. All appearing defendants in the case at bar were jurisdictionally before the Illinois court, either as plaintiffs, defendants, or intervening petitioners. In addition, the fourth broker, Shogren, appeared as a defendant. It is the fact that the Mittelmans were not brought in as parties in Illinois, but the effort to force their appearance in the case at bar has been fruitless. In any event, it is clear that all parties in the case at bar over whom jurisdiction has been obtained were properly before the Illinois court.
The issues tried and determined in Illinois are the same as the issues raised by the pleadings in the case at bar. Fundamentally, the issue between the plaintiffs and the defendants in Delaware is whether or not the plaintiffs, as the sole procuring brokers of the purchasers of the project, and as the procurers of a mortgage loan *186 used to consummate the purchase, are entitled to the commissions they claim. The defendants in opposition claim that the plaintiffs were but two of four procuring brokers who were entitled jointly to a fixed fee of $75,000 from the purchaser as full compensation for all services performed by them in connection with the purchase of the project.
These same issues were tried on the merits in Illinois and decided in favor of the defendants and against the plaintiffs. Specifically, the decree of July 3, 1956 of the Illinois court adjudicated that: Cottage and Nemeroff, Maremont, Bright, and the Mittelmans (who were not made parties in Illinois), the original purchasing group, were indebted to the four brokers jointly in the sum of $75,000; the amount of $75,000 was the entire amount due the four brokers for all services rendered in connection with the sale of the project, and in connection with obtaining the mortgage loan; Chatham, and the other individual defendants, were not indebted to the four brokers in any amount whatsoever; and the payment into court of $75,000 amounted to a complete satisfaction of all obligations owed to the brokers arising out of the purchase and sale, and constituted a complete satisfaction and discharge of all claims asserted by the plaintiffs in the Delaware case. To be sure, these plaintiffs allowed the Illinois proceeding to go by default as to them, but the opportunity was there for them to litigate those issues on the merits. This, they chose not to do.
There is no question but that the Illinois decree is final. The action in Illinois proceeded by the filing of a bill in the nature of interpleader, an order for the defendants and intervenors to interplead among themselves, an order of reference to a Special Master, hearings on the merits before the Master, the filing of a Master's Report, the entry of a decree overruling exceptions to the Master's Report, and embodying the Master's recommendations in the decree, an appeal from the decree by these plaintiffs to the Supreme Court of Illinois, the dismissal of that appeal, and, finally, the entry of an order in the Circuit Court denying a motion by these plaintiffs to vacate the order of default against them, the order of reference to a Master, and the final decree of July 3, 1956. The time for further appeal to the Supreme Court of Illinois in the cause having now expired, the finality of the Illinois decree is not debatable.
It is thus plain that on its face the decree of the Illinois Circuit Court satisfies the requisites of the rule of res judicata. Furthermore, Article IV, § 1 of the Federal Constitution requires the States of the Union to give full faith and credit to the judicial proceedings of the other States. This provision requires every state to give to the judgments of another state, assuming jurisdiction by the state entering the judgment over the parties and subject matter, the same effect which that judgment has in the state in which it was rendered. Roche v. McDonald, 275 U.S. 449, 48 S. Ct. 142, 72 L. Ed. 365. In Illinois the decree raised as a bar in this action would operate as an absolute bar against the re-litigation by these plaintiffs of the issues. Winkelman v. Winkelman, 310 Ill. 568, 142 N.E. 173. Thus, either upon principles of comity or by reason of Article IV, § 1, of the Federal Constitution, the decree is a bar to the re-litigation of the same issues in Delaware.
The first question for decision is therefore answered in the affirmative.
The second question for decision is the right of the plaintiffs to attack collaterally the decree of the Illinois court. They seek to avoid the bar of the Illinois decree upon the ground that it was obtained as a result of fraud.
Article IV, § 1 of the Federal Constitution permits collateral attack on the judgment of one state in the courts of another only in those circumstances in which the state rendering the judgment would permit collateral attack upon it. Johnson v. Muelberger, 340 U.S. 581, 71 S. Ct. 474, 95 *187 L.Ed. 552; United States v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93; Du Pont v. Du Pont, 8 Terry 231, 90 A.2d 468, certiorari denied 344 U.S. 836, 73 S. Ct. 46, 97 L. Ed. 651.
It has been difficult to determine precisely the nature of the attack made by these plaintiffs upon the Illinois decree. No brief or memorandum in support has been filed. However, from the numerous papers which they have offered as exhibits attached to various affidavits and motions, and from oral statements made by them in the course of a hearing on a motion before one of the Judges of the Superior Court, it seems apparent that the charge is that the Illinois decree was procured by fraud upon the Illinois court.
Initially, they seem to contend that since the decree in Illinois was entered against them upon their default, that it may be successfully attacked. As has been pointed out, however, both the plaintiffs were served with process personally in the State of Illinois and, consequently, their default in that proceeding was their own responsibility, since they had and were given ample opportunity to litigate the cause upon its merits.
Such being the case, it seems well settled in Illinois that no difference exists between a judgment rendered upon the merits after full litigation and a judgment rendered upon the default of parties. In either event, the judgment is not subject to collateral attack upon the basis of fraud, unless such fraud would have prevented the acquisition of jurisdiction by the rendering court. Dyer v. Hopkins, 112 Ill. 168; Sielbeck v. Grothman, 248 Ill. 435, 439, 94 N.E. 67; Kirkham v. Harris, 285 Ill.App. 385, 2 N.E.2d 119. A collateral attack based upon the fact of default would, therefore, not be permitted in Illinois.
The second charge of fraud in support of the right to attack collaterally in Delaware the Illinois decree seems to be based upon the fact that the defendants in the Delaware action, in pleading to the action in Illinois, alleged that the Mittelmans were not members of the purchasing group at the time the option was exercised. It is argued that this allegation was perjured, since the Mittelmans were members of the purchasing group. However, after the hearing of testimony, the Master in Illinois found as a fact that the Mittelmans were members of the purchasing group at the time of exercise of the option. This finding was approved by the court after the hearing on exceptions to the Master's report. It thus seems obvious that, accepting the contention of the plaintiffs in this respect to the fullest, there was no fraud perpetrated upon the Illinois court.
Even, however, had this not been the fact, and assuming that the Illinois decree had been obtained upon perjured testimony, still that circumstance would not permit a collateral attack upon the decree in the State of Illinois and, thus, a fortiori, would not permit a collateral attack upon that decree in Delaware unless perjury is a ground for collateral attack in Illinois. Du Pont v. Du Pont, supra.
It is plain that in Illinois irregularity or error in the proceedings leading to the entry of a judgment will not permit a collateral attack upon that judgment. The right to set aside in a collateral proceeding the decree of an Illinois court in Illinois stems only from the existence of fraud which effectively prevented the acquisition of jurisdiction, or which prevented the defendants in the cause from making their defense or having their day in court. Chapman v. North American Life Insurance Co., 292 Ill. 179, 126 N.E. 732; Wood v. First National Bank of Woodlawn, 383 Ill. 515, 50 N.E.2d 830. Thus assuming perjury in the pleading, a conclusion I think entirely unwarranted, still that fact would not permit collateral attack on the decree.
*188 The foregoing, in my opinion, disposes of the matter and requires the entry of judgment in favor of the defendants. It has seemed proper to me to deal with the questions by an opinion of this length because of the troublesome course this cause has taken in Delaware, due largely to the fact that the plaintiffs, for the greater part of the time, have been without counsel in the cause, apparently being unable or, perhaps, unwilling to keep their lawyers under retention. It is unnecessary to fix the fault, but it is proper to observe that the absence of responsible counsel for the plaintiffs has occasioned unwarranted delay in the decision of this law suit.
For the same reason the lack of counsel I will mention briefly certain additional arguments made by them. They cite Sanders v. Armour Fertilizer Works, 292 U.S. 190, 54 S. Ct. 677, 78 L. Ed. 1206. The purpose in so doing is obscure, because the holding of that case is simply that a lien on the proceeds of insurance policies obtained by garnishment in an Illinois foreign attachment action followed the payment of the proceeds into court in a subsequent interpleader action in a Federal District Court in Texas despite the Texas law which exempted such proceeds from attachment. The case has no pertinency.
Plaintiffs cite 6 Moore's Federal Practice (2nd Ed.) 56.17(52) to the effect that a motion for summary judgment based upon a foreign judgment should be denied when there is a genuine issue of material fact respecting that judgment. There can be, of course, no issue of fact respecting the Illinois decree, the proof of which is made by authenticated portions of the record in that cause. The point is without merit.
Finally, plaintiffs cite Ensminger v. Powers, 108 U.S. 292, 2 S. Ct. 643, 27 L. Ed. 732. That case was the holding of a decree to be a nullity on the ground that the trial judge refused an opportunity to the plaintiff to argue, and abrogated to counsel for the defendant the decision on the question refusing to exercise his judicial function himself. Presumably, the case is cited in support of a charge made by at least one of the plaintiffs that a conspiracy exists between the Delaware Judiciary and counsel for the defendants to deprive the plaintiffs of justice in this cause. It is presumably based upon the disqualification of the Superior Court Judges of themselves on the ground that they were incapable of rendering an impartial decision in the cause. The alleged conspiracy exists only in the mind of the person who made the charge. The harassment to which the Superior Court Judges were subjected by the tactics of the plaintiffs was so aggravated as to warrant the conclusion that it was deliberate. In any event, the charge is spurious.
These plaintiffs throughout the course of this law suit have cluttered up the record with affidavits, letters and telegrams charging the unfortunate Judge who at the moment had the duty of trying to make order out of the chaos of this action, with prejudice, conspiracy and the deliberate disregard of their rights. Despite their incoherent diatribes, however, I venture the opinion that these plaintiffs have received at the hands of the Delaware Judges more tolerant forbearance than was deserved. If a mistake has been made in this law suit, it has been one of kindness springing from sympathy with bitterly complaining parties who were without counsel. The unfortunate fact is that the only injury resulting has been to the defendants who have been deprived of the use of their property for over four years.
An order granting summary judgment for the defendants and dissolving the attachments may be presented upon proof of notice of one week to the plaintiffs, which notice shall be given by certified mail.
NOTES
[1] Assigned to sit in the Superior Court of New Castle County to hear and decide this cause by order of the Chief Justice dated February 12, 1959, pursuant to Art. 4, § 19, Delaware Constitution, Del.C.Ann.
[2] The plaintiffs failed to appear at the argument on the motion nor have they seen fit to file briefs in opposition. Their activities have been restricted to the resumption of their dilatory maneuvers. As far as possible from the mass of papers filed by them, their position on the motion has been ascertained.
[3] The resident agent of Cottage certified in answer to the attachment that the Mittelmans were not stockholders of record.
[4] It is at least doubtful that a beneficial interest in stock of a Delaware corporation, not evidenced by the corporate books and records, can be seized by Delaware foreign attachment. Cf. Spoturno v. Woods, 8 W.W.Harr. 378, 192 A. 689, and Womack v. De Witt, 1 Terry 304, 10 A.2d 504.
[5] Not named as a party defendant.
[6] Actually, the original answer pleaded the pendency of the Illinois action as the ground for a stay of proceedings in Delaware, but the Illinois action having terminated in a decree favorable to the defendants prior to any decision in this action, by amendment the final Illinois decree was pleaded as a bar.
[7] Actually, Norman Epstein completely defaulted in Illinois, but Minnette Pilot Epstein appeared in person and by counsel after the entry of an order of reference. She claimed to have filed an answer in Illinois which at no time has been produced. Her claim that it had been fraudulently removed from the court files was rejected by the Illinois court.
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475 S.W.2d 451 (1971)
Lucile L. HANDLY and Sarah M. Canopa, Plaintiffs-Respondents,
v.
Maxwell LYONS, Executor of the Estate of William R. Lyons, deceased, Defendant-Appellant.
METROPOLITAN LIFE INSURANCE COMPANY, a corporation, Defendant-Appellant and Third-Party Plaintiff-Appellant,
v.
Maxwell LYONS, individually as residuary legatee under the Last Will and Testament of William R. Lyons, deceased, Third-Party Defendant-Respondent.
Nos. 25276, 25277.
Kansas City Court of Appeals, Missouri.
October 4, 1971.
Motion for Rehearing and/or Transfer Denied December 2, 1971.
Application to Transfer Denied February 22, 1972.
*452 W. R. Schelp, Lexington, for Lucile L. Handly and Sarah M. Canopa.
Charles H. Green, Jr., Higginsville, and William Aull, III, Lexington, for Maxwell Lyons, Executor of the Estate of William R. Lyons, Deceased; Green & Green, Higginsville, Aull, Hader & Sherman, Lexington, of counsel.
John J. Kitchin, Kansas City, for Metropolitan Life Insurance Co.; Jack B. Helitzer, New York City, Swanson, Midgley, Jones, Eager & Gangwere, Kansas City, of counsel.
Motion for Rehearing and/or Transfer to Supreme Court Denied December 2, 1971.
CROSS, Judge.
On December 26, 1965, William R. Lyons, a retired United States postal employee, who had worked some forty years under Civil Service at the Higginsville Post Office, departed this life. He was then covered as an insured by a group policy of life insurance issued by defendant Metropolitan Life Insurance Company, procured by the United States Civil Service Commission, insuring various federal employees. Upon his demise, benefits in the amount of $8,000.00 became due and payable, under terms of the policy.
Notwithstanding a substantial showing that plaintiffs Lucile L. Handly and Sarah M. Canopa (respectively sister and niece of the deceased) were lawfully designated beneficiaries under the policy, entitled to the proceeds, Metropolitan made payment of the $8,000.00 to Maxwell Lyons, executor of the estate of deceased.
This somewhat complex multi-party action commenced as a suit by plaintiffs Handly and Canopa against both Metropolitan and Maxwell Lyons, executor. Plaintiffs claim recovery against Metropolitan on the ground that they were lawfully *453 designated beneficiaries of the insured. They claim against Maxwell Lyons, executor, on the basis that the $8,000.00 he received from Metropolitan belonged to them. Metropolitan denied plaintiffs' action on the ground that the insured's beneficiary designation was not lawfully sufficient, and that plaintiffs had not submitted due proof they were entitled to payment. Additionally, defendant Metropolitan filed a cross-claim against defendant Maxwell Lyons for restitution of the $8,000.00 paid him in the event plaintiffs prevailed. Defendant Metropolitan also filed a third party action against Maxwell Lyons, individually, claiming that if Metropolitan is adjudged liable to plaintiffs, it should recover against Maxwell Lyons, individually, as the sole residuary legatee under the will of William R. Lyons, deceased. Defendant Maxwell Lyons, both as executor and individually, denied any liability to either plaintiffs or Metropolitan on their claims.
Upon trial, the court found that plaintiffs were entitled to recover the insurance proceeds from Metropolitan and entered judgment that Metropolitan pay plaintiffs the principal proceeds sum of $8,000.00, with interest from May 5, 1966, together with $800.00 damages for vexatious refusal to pay, and reasonable attorneys' fees in the amount of $1,818.75, a total sum of $10,618.75. The court found in favor of Metropolitan on its cross-claim against defendant Maxwell Lyons, executor, and adjudged that he pay Metropolitan the sum of $8,000.00. Recovery was denied Metropolitan as against Maxwell Lyons individually.
Defendant Metropolitan has appealed from the entire judgment, except that part which awarded judgment in its favor on its cross-claim against Maxwell Lyons, executor. Defendant Maxwell Lyons, executor of the Estate of William R. Lyons, deceased, has appealed from the judgment in favor of Metropolitan on its cross-claim against him as such executor. The two appeals have been consolidated. Our consideration of the appeals will be in the order stated.
The group insurance policy involved here was issued on August 29, 1954, by defendant Metropolitan Life Insurance Company, to the United States Civil Service Commission, as nominal policyholder, pursuant to the Federal Employees Group Life Insurance Act of 1954, 5 U.S.C.A. Section 8701 (formerly 5 U.S.C.A. Section 2091). The policy automatically insured federal employees referred to in the act. The policy premium was paid pro rata by those employees through payroll withholding and by contributed federal funds. Individual certificates summarizing the principal policy provisions were issued to the several employees.
Metropolitan admits that William R. Lyons was an insured under the policy and that life insurance benefits in the amount of $8,000.00 were payable upon his death. Both the federal act referred to and the policy provide explicitly what persons shall receive payment of benefits upon death. 5 U.S.C.A. Section 8705 provides:
"(a) The amount of group life insurance and group accidental death insurance in force on an employee at the date of his death shall be paid, on the establishment of a valid claim, to the person or persons surviving at the date of his death, in the following order of precedence:
First, to the beneficiary or beneficiaries designated by the employee in a signed and witnessed writing received before death in the employing office or, if insured because of receipt of annuity or of benefits under subchapter I of chapter 81 of this title as provided by section 8706(b) or (c) of this title, in the Civil Service Commission. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.
Second, if there is no designated beneficiary, to the widow or widower of the employee.
*454 Third, if none of the above, to the child or children of the employee and descendants of deceased children by representation.
Fourth, if none of the above, to the parents of the employee or the survivor of them.
Fifth, if none of the above, to the duly appointed executor or administrator of the estate of the employee.
* * *"
The policy provisions applicable to the issues are as follows:
"Section 5. INSURING CLAUSES. * * * Payment shall be made to the Beneficiary of record of the Employee or otherwise as provided in Section 11 hereof immediately after receipt of such proof (of death) and of proof that the claimant is entitled to such payment."
"Section 11. BENEFICIARIES. Any Employee insured hereunder may designate a Beneficiary and may, from time to time, change his designation of beneficiary, only by filing written notice thereof signed and witnessed, with his employing office or, in the case of (1) a retired Employee and (2) an Employee whose Life Insurance hereunder is continued while he is in receipt of benefits under the Federal Employees' Compensation Act, with the Policyholder, whereupon an acknowledgment of such designation or change will be furnished the Employee. * * * A designation or change of beneficiary shall take effect only if it is received by the appropriate office prior to the death of the Employee and shall be effective as of the date of receipt of said written notice."
"* * * If, at the death of the Employee, there be no designated Beneficiary as to all or any part of the insurance, then the amount of insurance payable for which there is no designated Beneficiary shall be payable to the person or persons listed below surviving at the date of the Employee's death, in the following order of precedence:
(1) To the widow or widower of the Employee;
(2) If neither of the above, to the child or children of such Employee and descendants of deceased children by representation;
(3) If none of the above, to the parents of such Employee or the survivor of them;
(4) If none of the above, to the duly appointed executor or administrator of the estate of such Employee;
* * *."
The individual certificate delivered to employees provides essentially the same as the federal act and the policy with respect to beneficiary designation. It states:
"If you want to name a beneficiary or change the designation, you can do so by filing a written notice, signed and witnessed, with your employing office which can supply appropriate forms for this purpose. * * * Any designation of beneficiary, to be valid, must be received by your employing office before your death."
It is not disputed that on June 14, 1957, William R. Lyons executed a "Designation of Beneficiary" on Standard Form No. 54, a blank form promulgated and furnished by the U.S. Civil Service Commission. Therein he named his sister, Lucile Handly, and Sarah M. Canopa, a niece, as his beneficiaries to share equally the policy proceeds. The designation was signed at the Higginsville Post Office by the insured and by fellow employees Delmos W. Gillilan and Charles H. Gallatin, as witnesses, both of whom testified to those facts. Neither witness remembered what was done with the form after it was completed. According to Commission regulation the form was to remain in the employee's personnel folder until such time as he retired or died. Upon retirement of an employee, his SF 54 was to be forwarded to the Commission, together *455 with other relevant documents and information. Following the insured's demise the SF 54 designation, as above described, was found by the postmaster in insured's personnel file as the Higginsville Post Office under circumstances to be noted. The personnel file referred to was a separate folder or jacket of papers and documents reflecting the insured's employment history. Such files were maintained for all employees who worked at the post office, ordinarily fifteen in number. The individual files contained numerous papers and recordssome of them, including insured's, "anywhere from seventy-five to one hundred documents." The personnel files were kept in a steel filing cabinet in a walk-in vault. Only the postmaster or his assistant had the vault combination or access to the files. The evidence shows that between the time the insured signed the SF 54 and the trial date, the only such persons with access to these "personnel records" were Mr. William Charles Pevestorff, the postmaster, Mr. Lewis W. Johnson, assistant postmaster, and Mr. Charles H. Gallatin, who succeeded Mr. Johnson as assistant postmaster. Mr. Pevestorff testified that the postmaster and assistant postmaster had "complete control of all personnel folders" and that if an employee wanted to place a paper in his personnel jacket he would deliver it either to the postmaster or the assistant, which official would place it in the employee's personnel jacket.
The insured retired December 8, 1965, while ill and confined in a hospital. His retirement papers were "processed" by Mr. Johnson, who was at that time the assistant postmaster. He did not "look through this personnel jacket page by page", but merely took from it "the things that I needed to get." In doing so he did not see the SF 54 formhe "overlooked" it. After the retirement papers were prepared by Mr. Johnson, the postmaster signed them (although he did not go through the personnel folder), and Mr. Johnson took them to the hospital for signature by the insured. As submitted to the Civil Service Commission, the retirement forms certified that the insured had no beneficiary designation on file as of November 21, 1965.
On January 11, 1966, following the insured's death on December 26, 1965, the Commission inquired of the Postal Data Center at St. Louis whether a beneficiary designation was on file and received the reply from that agency that "No SF 54 on file". Without further inquiry, the Commission on March 3, 1966, wrote a letter to defendant Maxwell Lyons, executor, advising him that benefits were payable under the deceased insured's life policy and that no beneficiary had been designated by insured. A claim form was enclosed in the letter, which stated that the person entitled to payment should sign and return the completed claim form. On March 8, 1966, defendant Lyons completed and executed the form himself, as executor, and mailed it to the Civil Service Commission. In turn, the Commission forwarded the claim to Metropolitan. It was received by Metropolitan on March 17, 1966, together with a memorandum indicating that there was "No SF 54 on File in C.S.C."
In the latter part of February or the first part of March, 1966, Mr. Pevestorff discovered the insured's SF 54 in his personnel folder at the Higginsville Post Office. Mr. Pevestorff testified that he found the document while going through the folder, preparatory to forwarding it to the Postal Employees Record Center. The first thing he did was to call in Maxwell Lyons and show him the SF 54 beneficiary designation. Maxwell Lyons admits Mr. Pevestorff called him in and showed him "some papers" before he made his claim as executor. It was Mr. Pevestorff's testimony that when Maxwell Lyons was shown the form he stated that "he thought he had a carbon copy which was legible and he couldn't tell exactly what information was on it." Then Mr. Pevestorff "immediately" forwarded the document to the Civil Service Office in Washington with a notation that it had been found "in a file of papers left at the Post Office by Mr. Lyons." The only communication *456 he received thereafter from that office relative to the SF 54 was a telephone request for written statements from the two employees who signed the SF 54 as witnesses, and from himself, as to its validity. Written statements were forwarded as requested, together with a written statement by Mr. Johnson, who had "retired" the insured. Copies of the statements were offered by plaintiffs but were not received in evidence. On March 18, 1966, the Civil Service Commission forwarded to Metropolitan the SF 54 and Mr. Pevestorff's accompanying notation. Those papers were received by Metropolitan on March 21, 1966.
After so receiving the SF 54 form designating plaintiffs as beneficiaries, and before payment of the policy proceeds, Metropolitan made no further inquiry or investigation into the matter except to request of Maxwell Lyons, by letter, that he check the insured's personal effects "for any Designation of Beneficiary Standard Form 54 executed by the insured". Through his attorney Maxwell Lyons replied that, "after an exhaustive search of Mr. Lyons' effects, we find no Form 54 as suggested in your letter." Specific admission was made on behalf of Metropolitan by John Byrnes, its claims supervisor, that between March 21, 1966, the time it received the SF 54, and May 5, 1966, the date it paid the policy proceeds to the executor, Metropolitan made no communication with Mr. Pevestorff or the local office for information as to whether the form was in the insured's file. Under those circumstances, Metropolitan paid the $8,000.00 policy proceeds to the executor on May 5, 1966. It was made clear by Metropolitan's claims supervisor that the determination to pay the executor instead of plaintiffs was Metropolitan's own decision.
Mrs. Canopa, niece of the deceased, lives in California. Mrs. Handly, his sister, lives in New Jersey. Both of them attended his funeral. Mrs. Canopa testified that her mother died when she was eleven days old and that her grandparents and her uncle (the deceased) raised her. Following her uncle's death she made inquiry about his life insurance because she had reason to believe she was a beneficiary. She first wrote to attorneys in Lexington, Missouri, but received no information. Thereafter, she ineffectually corresponded with the Civil Service Commission, receiving only the information that there was no beneficiary designation on file. No claim blank was tendered her by the Civil Service Commission or by Metropolitan.
Mrs. Handly testified that she discussed the matter of her brother's insurance with Maxwell Lyons on the day of his funeral and later on February 13, 1966, "when we came for the distribution of the antiques." According to her testimony, Maxwell Lyons stated that the deceased had both a retirement fund and an insurance policy, and that "there was a paper which Mr. William Lyons had not sent in to Washington." The witness understood Maxwell Lyons to say that he was aware of some form naming an insurance beneficiary"that he had seen the paper". In early June Mrs. Handly wrote a letter to Mr. Pevestorff inquiring as to the status of her brother's insurance. The letter "finally ended up in Washington, D. C." Mrs. Handly corresponded with the Civil Service Commission in like manner as had Mrs. Canopa, with like resultsreceiving only advices that there was no beneficiary designation on file with that agency or the employing office. Nor was any claim form tendered her by the Commission or Metropolitan.
In November, 1966, plaintiff Handly's husband went to Metropolitan's office in New York on behalf of plaintiffs and discussed their interests in the policy benefits with John Byrne, Metropolitan's chief claims examiner, previously identified. After being shown the SF 54 by Mr. Byrne, wherein Mrs. Handly and Mrs. Canopa were designated as beneficiaries of the policy, Mr. Handly requested payment by Metropolitan accordingly.
Mr. Byrne informed Mr. Handly that the policy proceeds had already been paid to *457 the executor and undertook to explain why payment was not made to plaintiffs. He admitted there was no question that the SF 54 Metropolitan had received was in writing, properly signed and witnessed, and that it was the proper form for designating a beneficiary. He stated that Metropolitan's refusal to recognize the form and denial of payment to plaintiffs was because (1) a space in the lower right hand corner had not been "completed" in that it bore no signature or initials of any "receiving officer", and (2) because Metropolitan felt there was no evidence the beneficiary designation had ever been filed at insured's place of employment. In the witness's words, "There is no evidence on the form that it was ever received in the employing office. * * * I think it calls for a date, and it calls for initials of the person receiving." From extensive cross-examination of witness Byrne, it is apparent that Metropolitan's faith attached to the initial notification from the Postal Record Center in St. Louis that there was no SF 54 there on file, and that Metropolitan chose to ignore the later advice from the Higginsville Postmaster that the form had been found in the employing office, as well as the accompanying document itself. Further testifying, Mr. Byrne stated that even if plaintiffs had filed a formal claim on a form provided by Metropolitan, that wouldn't have made any difference in his decision and Metropolitan would not have made payment to plaintiffs. At no time did Metropolitan consider filing an interpleader action.
Maxwell Lyons testified that the first time he ever heard of any insurance belonging to deceased was "when I got that letter from that fellow, Babel, or something" (the Civil Service Commission's letter of March 3, 1966, to the executor in which was enclosed a blank claim form for use by the proper beneficiary). The witness admitted that Mr. Pevestorff had previously shown him "some papers" but testified, "I can not say they were insurance papers." Subsequently, on March 8, he executed the claim on behalf of himself and mailed it. He denied having told Mr. Pevestorff that he thought he had a copy of the SF 54. He also denied having discussed the subject of deceased's insurance with Mrs. Handly or Mrs. Canopa.
William R. Lyons, the deceased, was not survived by a widow, a child or children, or any parent. Maxwell Lyons, the executor of William R. Lyons' estate, is the residuary legatee in the deceased's will. If the insurance proceeds paid the executor are adjudged to be lawful assets of the estate, upon its final distribution, those moneys will pass from Maxwell Lyons, the executor, to Maxwell Lyons as an individual. The fund of $8,000.00 still reposes intact in the hands of the executor.
Upon rendering judgment, the trial court filed a memorandum opinion as follows:
"MEMORANDUM OPINION
William R. Lyons, a postal employee, died on December 26, 1965. At the time of his death he was insured by Metropolitan Life Insurance Company in the amount of $8,000.00. The policy provided, `Any Employee insured hereunder may designate a Beneficiary _ _ _ only by filing written notice thereof, signed and witnessed, with employing office _ _'. William R. Lyons, deceased, under date of June 14, 1957, made a valid designation of beneficiary naming plaintiffs as his beneficiaries on Form No. 54. This form was on file with his papers in the employing office at the time of his death. After the death of William R. Lyons, the proper officials in the employing office did not find form No. 54, and defendant Metropolitan Life Insurance Company was so notified. About March 1, 1966, form No. 54 was found in William R. Lyons' papers at the employing office. It was forwarded and received by defendant Metropolitan Life Insurance Company on March 21, 1966. On March 17, 1966, Metropolitan received a claim form FE-6 from Maxwell Lyons, Executor of the Estate of William R. Lyons, deceased. Thereafter on May 5, 1966, *458 defendant Metropolitan Life Insurance Company elected to pay $8,000.00, the amount of the policy to Maxwell Lyons, Executor, and issued a check therefor. The plaintiffs did not have access to any of the records but were concerned about the proceeds of the insurance policy. There is ample evidence that plaintiffs were continually trying to obtain information about the insurance policy.
Under the facts of this case, this Court holds that defendant Metropolitan Life Insurance Company paid the $8,000.00 to the wrong party and has refused to pay the properly designated beneficiaries, the plaintiffs in this action. This Court further holds that after having notice of the designation of beneficiaries for about six weeks before payment was made, and a refusal to pay the plaintiffs as beneficiaries, the action of defendant Metropolitan Life Insurance Company was vexatious and without reasonable cause.
Defendant Metropolitan Life Insurance Company by cross-claim asks judgment against Maxwell Lyons, Executor of the Estate of William R. Lyons, deceased, on the grounds of mistake and unjust enrichment. The $8,000.00 paid to the Executor is still intact and there is no change in circumstances of the parties which would require a judgment other than one against the Executor in favor of the Metropolitan Life Insurance Company for the $8,000.00 erroneously paid."
In Metropolitan's first appeal point it is contended that plaintiff was not entitled to judgment because the beneficiary designation "was not properly received and recorded in the postal employing office prior to insured's death." Arguing the point, Metropolitan states that to have been valid, the SF 54 must not only (1) have been filed with insured's employing agency (the Higginsville Post Office), but also (2) must have been "approved and acknowledged by that agency prior to his death." This latter phase of the argument is largely bottomed on the circumstance that the document does not show on its face, by the signature or initials of some official, that it was received in the insured's place of employment, prior to the insured's death.
The validity of the beneficiary designation is to be tested by the provisions of the policy and applicable law. In order for an insured to effect a valid designation or change of a beneficiary, Section 11 of the policy, as amended to conform with the Federal Act, requires only (1) a notice of the insured's intention, in writing, (2) signed by insured, (3) witnessed, and (4) filed with the employing office prior to the insured's death. The SF 54 in this case satisfied these requirements. No provision of the policy or any appertaining law requires that the "notice" itself shall bear the signature or identification of the individual to whom it is tendered for filing or who receives it on behalf of the employing office. Nor is it essential to the validity of a beneficiary designation that the date of the document's receipt by the employing office shall be inscribed thereon by the officer to whom it is delivered or that the paper be "approved and acknowledged" by the receiving office or that it be "recorded" by any agency. These suggested requirements are not prescribed by the policy. Since we are governed by the language of the policy, Sims v. Missouri State Life Insurance Co., 223 Mo.App. 1150, 23 S.W.2d 1075, we decline to read into it any ground on which the insurer might avoid liability that is not clearly expressed therein. Greer v. Zurich Insurance Co., Mo. Sup., 441 S.W.2d 15. Applying the foregoing standards, we hold that the SF 54 is a valid designation of plaintiffs as beneficiariessubject to proof dehors the instrument itself that it was filed with the employing agency (Higginsville Post Office) prior to the insured's death. That is a disputed issue of fact, which, if found in the affirmative, as did the trial court, would require affirmance of the award to plaintiffs.
*459 We are convinced by the record in this case, as was the trial court, that William R. Lyons, in his lifetime, had filed the properly signed and witnessed SF 54 with his employing office, the Higginsville Post Office, and thereby lawfully designated plaintiffs as the beneficiaries of his policy. In arriving at this view we have taken into due consideration all testimony pointed to by Metropolitan as tending to show otherwise. It is true that the only two officials authorized to receive and file the form had no independent memory of having done so, although they do not foreclose that possibility. Bearing in mind that some ten years had elapsed since the form was executed (in the same office where it was found), it is reasonable that the memory of those two officials could not be expected to recall in detail each of seventy-five to one hundred documents in fifteen separate individual personnel folders. Nor are plaintiffs to be foreclosed because the postmaster and his assistant overlooked the SF 54 in processing the insured's retirement, or because the postmaster did not discover it when the Civil Service Commission first inquired whether such an instrument was on file. The important fact is that the postmaster did discover the document in the insured's file in ample time to put it in the hands of Metropolitan more than six weeks before it refused plaintiffs' request for payment. We reject the possibility (at which Metropolitan vaguely hints) that some person might have placed the paper in the insured's file after his death. This, because both of the only two officials who had access to the personnel jacket testified that neither they, nor any other person, had placed it in the insured's file between the date of his death and the date it was found therein. The judgment that plaintiffs have the policy proceeds will not be disturbed.
Metropolitan next complains that the trial court erred in entering judgment against it for a ten per cent penalty and an attorneys' fee. So contending, Metropolitan sets up two attemptedly supportive grounds: (1) that the penalty section invoked, V.A.M.S. Sec. 375.420, is not applicable and (2) that Metropolitan's refusal to pay was not in fact vexatious. Arguing the first ground, Metropolitan asserts that the insurance contract arose under federal law, that application for it was made in the District of Columbia, that the policy was issued in New York, and that the policy holder is the Civil Service Commission, whose office is in the District of Columbia. Hence, says Metropolitan, the policy is not a Missouri contract, and the law of the state where the contract is made will be applied. Metropolitan cites (among others) the case of Thompson v. Traders' Insurance Co. of Chicago, 169 Mo.Sup. 12, 68 S.W. 889, and thereby severely undercuts its position on the question. The Thompson case involved a Kansas contract of insurance and a property loss which occurred in Kansas, under which circumstances the place of performance was clearly in the State of Kansas. Our Supreme Court said:
"In Scudder v. Bank, 91 U.S. 406, 23 L. Ed. 245, the supreme court of the United States formulated a rule bearing upon the doctrine of the lex loci contractus, lex loci rei sitae, and lex fori, as follows: `Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.' The Missouri statute imposing this penalty for vexatious delay does not relate to the remedy. It is a matter connected with the performance of the contract. Hence it can only apply to contracts that are to be performed in Missouri. It has no application to contracts like the policy in suit, which was made in Kansas, where the property insured *460 was located and was destroyed in Kansas where the contract was to be performed in Kansas, and where the cause of action accrued and became complete in Kansas. It could not be that under the laws of Kansas the defendant would not be liable for damages for vexatious delay, but because the venue is transitory the plaintiff could sue in Missouri instead of in Kansas, and under the Missouri statute recover damages for vexatious delay. The Missouri law applies only to the remedy in this case. The law of Kansas applies to the contract, and to all matters pertaining to the performance thereof. Hence the Missouri rule applies to the waiver, while the Missouri statute allowing damages for vexatious delay does not apply."
Thus the court held in Thompson that matters pertaining to performance of the contract were governed by the law of the state where the contract was to be performed, and properly ruled that the Missouri penalty statute does not apply where the cause of action accrued in and was to be performed in the State of Kansas. It is implicit in the Thompson case that in cases where an insurance contract is to be performed in Missouri, the vexatious penalty statute of Missouri would apply. The implication in Thompson has developed into a positively stated rule embodied in a succession of Missouri decisions. See Rippstein et al. v. The St. Louis Mutual Life Insurance Co., Mo.Sup., 57 Mo. 86; Martin v. Mutual Life Insurance Co. of New York, 190 Mo.App. 703, 176 S.W. 266, cited in 44 C.J.S. Insurance § 53, p. 516; Johnston v. Progressive Life Insurance Co., 293 Mo.App. 184, 192 S.W.2d 649.
The case of Martin v. Mutual Life Insurance Company of New York, above cited, is leading authority that matters connected with performance of the contract are governed by the law of the state where it is to be performed, that a vexatious refusal to pay is a matter connected with the performance of the contract, and that the place of performance of a life insurance contract is where the death occurs. In the course of the opinion (by Nortoni, J.) the court quoted the same exerpt from Thompson v. Traders Insurance Company that we have above set out herein. Following that quotation, the Martin opinion continues:
"Even under the authority of that case (Thompson) it is manifest the court declares in plain terms that matters connected with the performance of the contract are regulated by the law prevailing at the place of performance, and the court declares, too, that a vexatious refusal to pay is a matter connected with the performance of the contract. No one can doubt that a contract of life insurance, providing for the payment of an amount on the event of the death of the insured, is transitory in character, without regard to the place of its original execution, and that it follows the person of the insured, so as to enable the enforcement of performance where the death occurs. The performance contemplated in such a contract is the payment of the amount agreed when the death occurs, and the cause of action accrues where that event takes place. See Rippstein v. St. Louis Mutual Life Ins. Co., 57 Mo. 86. The matters pertaining to the performance of the contract are to be determined under the law of the place where the performance is to be had, and the court very properly submitted to the jury the matter of damages for vexatious refusal to pay."
William R. Lyons was a resident of Missouri, his place of employment was in Missouri, and his demise also occurred in this state. Under the authorities we have noted, regardless of where the policy contract was executed, and regardless of what state it may be said to be a contract, it is eminently clear that the situs of the contract's performance was in the State of Missouri, and, perforce, that the cause of action also arose in Missouri. Being a matter pertaining to performance of the contract, the issue of awarding a penalty *461 and attorneys' fee under Section 375.420 is a matter of Missouri law, and the cited statute is applicable to the question. The trial court properly entertained jurisdiction of the issue.
We next attend the question whether, under the facts, Metropolitan should be held guilty of vexatiously refusing to pay the plaintiffs. We determine that issue under the fundamental rule that in awarding damages and attorney fees each case must turn on its own particular facts. We recognize also that in order to recover the statutory penalty and attorneys fees, it is not necessary to show affirmatively that the delay was vexatious. It is only required that the evidence and circumstances of the case be sufficient to justify the conclusion that the refusal was vexatious. Western Casualty and Surety Co. v. Southwestern Bell Telephone Co., 8th Cir., 396 F.2d 351; Coscarella v. Metropolitan Life Insurance Co., 175 Mo.App. 130, 157 S.W. 873. At the risk of repetition we note that Metropolitan had received all information it had sought concerning the policy, including the SF 54 form, in its office on March 21, 1966, more than six weeks before paying the policy benefits to Maxwell Lyons, the executor. The only question that could have been directed to the validity of the SF 54, which Metropolitan held in its own hands all that time, was whether the form was on file in the personnel jacket of deceased when he died. For that entire six weeks period, Metropolitan did absolutely nothing to determine the circumstances of the document's disposition and whereabouts, except to inquire of the executor if there was a carbon copy in the deceased's personal effects. Metropolitan ignored the official in charge of the employing office to whom it could have addressed inquiry. Metropolitan's failure to contact and communicate with, and seek information from plaintiffs is significant in the instant question, as is Metropolitan's failure to follow an alternative procedure such as interpleader, which would have relieved it of responsibility to plaintiffs. Considering the opportunity and facilities for investigation available to Metropolitan, during the extended period between March 21 and May 5th, together with the fact that it made no substantial or good faith inquiry further into the question, we feel that its refusal to pay plaintiffs was wilfull, unreasonable and without probable cause. Hence it must be held guilty of vexatiously refusing to pay plaintiffs the policy benefits. The trial court did not err in allowing plaintiffs the statutory penalty and attorneys' fees.
Metropolitan's brief presents a third pointa submission that the trial court should have entered a judgment against defendant Maxwell Lyons, executor, for the full amount of the judgment entered against Metropolitan in favor of plaintiffs. This contention is made on the theory that under principles of equity Metropolitan was entitled to full reimbursement for all liability to plaintiffsmeaning policy proceeds, interest, penalty and attorney's fees. This point will receive attention in connection with our consideration of the appeal by Maxwell Lyons, executor.
As an appellant, executor Maxwell Lyons agrees that if the trial court reverses the award in favor of plaintiffs, there remains no issue as to whether payment to the executor was justified. In the alternative, executor Lyons contends that if this court sustains the trial court's award to plaintiffs, Metropolitan is not entitled to recover the money it had paid him. The substance of his argument is that the payment "was voluntarily made by Defendant Metropolitan with full knowledge of all the facts, or at least with an unlimited opportunity to so inform itself, and can not be recovered because defendant Metropolitan's misconception of its policy obligation was a mistake of law, and not a mistake of fact." Thus appellant executor appeals to the equitable conscience of the court under the general doctrine that equity will not afford relief against a mistake of law, as distinguished from a mistake of fact. In greater particularity, the rule relied upon by appellant, as *462 stated by this court, is that "a voluntary payment made under a mistake or in ignorance of the law, but with full knowledge of all the facts, and not induced by any fraud or improper conduct on the part of the payee, cannot be recovered back." (Italics supplied.) Wilkins v. Bell's Estate, Mo.App., 261 S.W. 927. Of this doctrine, more hereinafter will be said.
Likewise, respondent Metropolitan has invoked principles of equity in aid of its claim for recovery of the money paid the executor. Whether Metropolitan's cross-claim be termed an action for restitution, or for money had and received, it is grounded on the fundamental equitable principle that "a person who has been unjustly enriched at the expense of another is required to make restitution to the other." Restatement of the Law, Restitution, p. 12. A suit for money had and received is in the nature of an equitable action, and is maintainable whenever a person has received money which in equity and good conscience belongs to and should be paid to another. See the numerous cases so holding in 20A Mo.Digest, Money Received. As stated in Brink v. Kansas City, 355 Mo. Sup. 860, 198 S.W.2d 710, "Such an action is founded `upon the principle that no one ought unjustly to enrich himself at the expense of another, and it is maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it and, ex aequo et bono, it belongs to another.' 4 Am.Jur. p. 509." The action for money had and received is flexible, is a favorite of the law, and the tendency is to widen its scope. 20A Mo.Digest, Money Received.
As a court called upon by both parties to administer equity in deciding the instant question, we take cognizance both of the general doctrine that payment of money under mistake of law, not induced by fraud or improper conduct on the part of the payee, may not be recovered back, and the rule that a person who has been unjustly enriched at the expense of another must make restitution to that person. However, as was said in Northrop's Executors v. Graves, Conn., 50 Am.Dec. 264, "These, and all other general doctrines and aphorisms, when properly applied to facts and in furtherance of justice, should be carefully regarded; but the danger is, that they are often pressed into the service of injustice, by a misapplication of their true meaning. It is better to yield to the force of truth and conscience, than to any reverence for maxims."
The general rule relied upon by appellant executor (that equity will not relieve against a mistake of law) does not enjoy the high favor that courts accord the doctrine of restitution and is subject to numerous exceptions. The modern trend of judicial opinion is clearly in the direction of liberalizing the general rule denying relief from mistakes of law which, admittedly, is a harsh one. In numerous cases relief has been granted in order to prevent injustice or unconscionable advantage. Some courts have declared that the important question is not whether the mistake was one of law or of fact, but is whether the case falls within the fundamental principle of equity that no person shall be unjustly enriched at the expense of another. See 27 Am.Jur.2d, Equity, Sec. 37, p. 561. Other recognized authorities are equally critical of the rule.[1] Whatever may be the *463 status of the general rule, it is universally acknowledged that equity always relieves against a mistake of law when the surrounding facts raise an independent equity, as where the mistake is induced, or is accompanied by inequitable conduct of the other party. 30 C.J.S. Equity § 47, p. 871. Missouri cases recognizing this exception include Wilkins v. Bell's Estate, supra, and Columbia Building & Loan Ass'n v. Gill, Mo.App., 285 S.W. 181. We quote the exceptive rule as it is stated in Pomeroy's Equity Jurisprudence, Fifth Ed., Sec. 847, p. 304:
"Mistake of Law Accompanied with Inequitable Conduct of the Other Party. Whatever be the effect of a mistake pure and simple, there is no doubt that equitable relief, affirmative or defensive, will be granted when the ignorance of misapprehension of a party concerning the legal effect of a transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, aided, or accompanied by inequitable conduct of the other parties. It is not necessary that such inequitable conduct should be intentionally misleading, much less that it should be actual fraud; it is enough that the misconception of the law was the result of, or even aided or accompanied by, incorrect or misleading statements, or acts of the other party. When the mistake of law is pure and simple, the balance held by justice hangs even; but when the error is accompanied by an inequitable conduct of the other party, it inclines in favor of the one who is mistaken." (Emphasis supplied.)
*464 It is evident from the executor's own testimony that Metropolitan's payment of the policy proceeds to him was induced or at least accompanied by inequitable conduct on his part, as witness the following facts of record: On direct examination he claimed that the first time he ever heard of any "insurance belonging to William Riley Lyons" was when he got the letter from the Civil Service Commission under date of March 3, 1966, advising him that the deceased had life insurance and enclosing a blank form for the proper beneficiary to use in making claim. He testified: "Q Now, at the time you mailed that in, did you know anything at all about his insurance? Had anybody told you anything about it? A I had no idea; didn't know he had any. Q You didn't know he had any insurance? A No, sir, I did not."
Later on cross-examination he admitted that "somewhere the last of February" and prior to "filling out" the claim form on March 8th, Postmaster Pevestorff had "called him in there" (the postoffice) and shown him "some papers", all as Mr. Pevestorff had testified, but insisted, "I didn't know whether they were insurance papers or what they were." The last quoted statement was directly contradicted by the executor's own attorney, who was called on his behalf as a witness. Answering the question, "Did Mr. Lyons tell you that the postmaster had told him there was a form 54?", the attorney stated, "He told me that, told me Mr. Pevestorff had showed him some forms and it had something to do with life insurance."
In view of the foregoing, coupled with the convincing testimony of the postmaster who had found the beneficiary designation, shown it to the executor and discussed it with him, we are not inclined to give credence to the executor's testimony. We believe, and accordingly find, that the executor knew the deceased had a policy of life insurance before he was so advised by the Commission's letter of March 3rd; and further, that at the very time he signed and mailed his claim for the proceeds, he knew that the deceased had executed a designation of beneficiaries other than himself. Under all standards of fair dealing and conscionable conduct he should have divulged to Metropolitan the information he had received from the Postmaster instead of remaining silent and making his own claim. By so concealing and suppressing material fact he must be held guilty of constructive fraudcertainly inequitable conduct. Therefore, under the exception to the general rule, last noted, the executor stands forfeited of any right to retain the payment on the ground it was paid under mistake of law.
In support of his appeal the executor relies most strongly, but ineffectually, upon American Motorists Ins. Co. v. Shrock, an opinion by this court, Mo., 447 S.W.2d 809. That case is distinguishable because it involved facts materially different from those considered here. In Shrock there was no showing whatsoever of any inequitable or improper conduct on the part of the payee. On the contrary, it was apparent in that case that to have required restitution would have been inequitable. The payment involved was by an insurance company to a widow under a medical provision of a liability policy for expenses of her husband's burial. After the widow had later sought and received an award of workmen's compensation benefits, payable weekly, the insurance company sought repayment on the ground that by reason of a policy exclusion there was no liability in the first instance and the payment was due to a mistake of law. Our denial of restitution was bottomed essentially on the rationale that the widow was not in the same condition as when she received the payment. The money having been paid her to defray expenses of her husband's burial, it was a reasonable assumption she had spent the money for that purpose, in the confidence it was hers, and that she had no means of repayment other than from the weekly stipend awarded her as workmen's compensation benefits. Hence, our ruling that equity would not intervene and require restitution. *465 It is obvious the situation in Shrock is materially different from that in this case where the entire sum of money paid, $8,000.00, remains intact in the hands of the payee.
Another line of argument is made by the executor to support his contention that Metropolitan should not recover its payment to him. He suggests that if this court sustains the trial court's decision that Metropolitan's refusal to pay plaintiff was vexatious, "then, a fortiori its payment to the Defendant Lyons was without legal justification and hence a mistake of law, and thus a voluntary payment that can not be recovered. Only he who does equity can seek equity, and if Defendant Metropolitan's action in not paying the insurance to Plaintiffs was unreasonable and vexatious, then Metropolitan can not utilize equity to compel a return to it of the voluntary payment made to Defendant Lyons." The foregoing argument is specious. Seeking to invoke the maxim "only he who does equity can seek equity", the executor overlooks the limitation upon the maxim that it applies only to the transaction actually in controversy. At present we are concerned with respective equities as between Metropolitan and the executor affecting Metropolitan's claim for restitution. It is of no materiality to that issue that Metropolitan may have acted inequitably in its separate transaction with plaintiffs by its vexatious refusal to pay the policy proceeds to them. "The maxim is subject to the qualification that the inequitable conduct which will defeat plaintiff's recovery must be conduct with reference to the transaction on which he bases his suit; relief will not be refused merely because of plaintiff's general bad character, nor because of particular acts of misconduct not directly involved in the suit. Even misconduct connected with the subject-matter of the suit will not defeat relief, where it does not form part of the transaction in controversy." McClintock on Equity, Sec. 26, page 63. The point is ruled in Metropolitan's favor.
Having determined that the executor must pay back the money Metropolitan had paid him, it is now appropriate that we consider the previously mentioned third point made by Metropolitan as an appellant its contention that the trial court erred in entering judgment for only the $8,000.00 actually paid the executor. Metropolitan posits that there should have been rendered in its favor a "judgment over" in the full amount of the judgment awarded to plaintiffs. Thus, in addition to restitution of the sum of $8,000.00 paid out, Metropolitan asserts entitlement to recovery from the executor a sum equal to the penalty, interest and attorneys' fee awarded plaintiffs. In seeking to shift those burdens, Metropolitan relies upon the theory that when it paid the policy proceeds to the executor, an implied or legally imposed contract arose between them obligating the executor as an indemnitor under duty to pay Metropolitan in toto the amount of any judgment rendered against it. The foregoing is a perversion of the principles of indemnity. "In order that a person who has paid damages may be entitled to indemnity from another, it is essential that such other be the one who is primarily responsible for the negligence or wrongful act which caused the injury." 42 C.J.S. § 23, p. 600. The "wrongful act" here concerned was Metropolitan's vexatious refusal to pay plaintiffs the insurance proceeds. Thus Metropolitan was the primary moving party responsible for plaintiffs' entitlement to damages, interest and award of attorneys' fees. It is futile to contend that the executorthe secondary partyshould bear the burden resulting from Metropolitan's dereliction. Furthermore, Metropolitan has only itself to blame for its judgment liabilities to plaintiffs in excess of the face amount of the policy. As has been noted, Metropolitan could have relieved itself of such liabilities by filing an action for interpleader and placing the funds in the hands of the court, subject to rival claims. Having failed to protect its interest by utilizing that available procedure, Metropolitan must now be content *466 with its judgment against the executor for the principal sum of $8,000.00.
Accordingly, we affirm the judgment as rendered.
All concur.
NOTES
[1] Pomeroy's Equity Jurisprudence, Fifth Edition, Sec. 851b evaluates the rule as follows: "Trend of Modern Decisions as to Mistakes of Law.The trend of judicial opinion in modern times is towards the modification of the old rule that equity will give relief only against mistakes of fact, as distinguished from mistakes of law. This is evidenced by the many cases in which equitable jurisdiction is entertained for relief against mistakes of law, sometimes on the express ground that such mistakes are as much a subject for equitable relief as mistakes of fact, or that it is immaterial whether the mistakes are of fact or of law, and sometimes on the theory that the particular mistake of law is of a character for which equity will give relief, though it ordinarily would not; and the cases in which the courts have displayed a marked inclination to regard a mistake as one of fact wherever it is doubtful that it is one of law. In proper cases relief has been given although the parties knew what words were employed and their ordinary meaning.
By statute in some jurisdictions relief may be granted from a mistake of law as well as of fact. Moreover, justice and reason appear to demand that the courts in general adopt the suggestion of an eminent author (Williston on Contracts) and put mistakes of law and of fact on the same footing, thereby attaining some degree of certainty and uniformity in decisions with respect to this subject.
However, in many cases, a stated ground upon which relief is denied is that the mistake is one of law. But often in such cases there are no attendant special circumstances justifying equitable relief. Undoubtedly the difficulty of producing objective evidence of conduct is frequently greater in cases of mistake of law than in cases of mistake of fact, but this should not militate against granting relief in a proper case whenever satisfactory evidence can be produced."
Corbin in Vol. 3 of his treatise on Contracts (1960 ed.) pp. 752-755 states the following view of the doctrine: "In spite of the many decisions and dicta pro and conindeed, because of them, it is believed that the time has come to say that the exceptions now make the rule, that social policy requires that mistake of law and mistake of fact be treated alike, and that in granting relief for mistake the attention of the court should be directed to the other factors in the case. There will still be left enough difficulty in the court's determining what justice requires. * * *
"According to commonly stated doctrine, one who pays money under a mistake of law has no right to restitution thereof, even though it was not legally due, if the payee claimed it as of right honestly and in good faith. How the payee can, in the absence of additional factors, be regarded as `honestly' keeping the money so paid, after he learns of the mistake of law and that his claim was unfounded, has never been made clear. It is certain that in several jurisdictions this rule has never been recognized. In all jurisdictions, there are large classes of exceptions. In most jurisdictions, cases may be found in which the decision rendered was inconsistent with the rule, though nothing was said of it and the court may have given no thought to the distinction between law and fact. And it is believed that the cases to be considered herein, dealing with rescission and reformation for mistake of law, or of legal `rights' strongly indicate the injustice and incorrectness of the stated rule."
Also see 75 A.L.R. 896, Annotation, Relief in Equity from Mistake of Law.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1513219/
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425 F. Supp. 585 (1976)
UNITED STATES of America ex rel. David Allen MORGAN, Petitioner,
v.
Paul W. KEVE, Director of the Division of Adult Corrections of the State of Delaware, Respondent.
Civ. A. No. 75-319.
United States District Court, D. Delaware.
December 28, 1976.
*586 L. Vincent Ramunno, Wilmington, Del., for petitioner.
Francis A. Reardon, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for respondent.
OPINION
MURRAY M. SCHWARTZ, District Judge.
The petitioner, David Allen Morgan, along with a co-defendant, Danny Hill, was convicted in the Superior Court of the State of Delaware of rape and kidnapping in September, 1971.[1] He received, and is now serving, a sentence of life imprisonment. Morgan now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
A brief recitation of the facts is essential to an understanding of the issues presently before this Court. The alleged rape occurred on October 19, 1970. The petitioner was arrested four days later, and, while in custody, gave a statement containing certain inculpatory remarks. Co-defendant Hill was subsequently arrested, and, he too, gave statements containing remarks that tended to inculpate both him and Morgan. At trial, although two attorneys served as counsel for the defense, they represented Hill and Morgan jointly. No inquiry was conducted by the trial judge into petitioner's selection of joint counsel.
Regarding the admissibility of the pre-trial statements, the trial court held there had been compliance with the Miranda rule but did not reach the issue of voluntariness. Thereafter the statements of both defendants, including those of Hill that implicated Morgan, were offered by the State for impeachment purposes. No instruction with respect to the voluntariness of either statement was given to the jury.
On appeal, the Delaware Supreme Court remanded as to both defendants, ordering that a hearing be held on the issue of *587 voluntariness.[2] After conducting such a hearing, the original trial judge found both statements to have been voluntarily given.[3] On appeal once more, the convictions were affirmed.[4]
As grounds to support the issuance of the requested writ of habeas corpus, petitioner claims: a) he was denied effective assistance of counsel at trial because he was represented jointly with Hill, b) the fact of joint representation deprived him of his right to confront, through cross-examination, the inculpatory remarks made by Hill in his pre-trial statement, c) his right to due process was violated when the trial court failed to instruct the jury on the issue of the voluntariness of his pre-trial statements, and d) the trial judge's later determination that said statements were voluntarily given was based on insufficient evidence.[5]
Joint Representation as a Denial of Effective Assistance of Counsel
Petitioner's first constitutional attack upon his conviction is that the joint representation by his appointed counsel worked a denial of the effective assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments. Specifically, he alleges that such joint representation gave rise to a conflict between the separate duties owed to him and co-defendant Hill, and that this conflict prejudiced his defense.
Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942) teaches that joint representation might well lead to a denial of effective assistance of counsel. There is disagreement among the Circuit Courts of Appeals concerning the procedural safeguards necessarily appended to this right, as well as the degree of prejudice which must be shown in order to establish that the right to effective assistance of counsel has been breached. According to the Second Circuit Court of Appeals, the majority rule, as well as the rule of that circuit, is "that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel." United States v. Lovano, 420 F.2d 769, 773-74 n.14 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S. Ct. 1515, 25 L. Ed. 2d 694 (1970).
In disposing of this aspect of petitioner's constitutional claims, the Delaware Supreme Court applied the standard employed by the Second Circuit:
"As to conflicts between these defendants, they have not identified any in the legal sense which was the product of or which resulted from joint representation; nor have they shown prejudice as a result thereof. [footnote omitted] Although courts do not engage in nice calculations as to the quantum of prejudice involved, Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), and Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967), it is settled law that some conflict must be established. United States v. Lovano, 2 Cir., 420 F.2d 769 (1970); Lugo v. United States, supra [350 F.2d 858]. None has been shown here." (Hill v. State, 316 A.2d 557, 558 (Del. 1974).)
The Third Circuit, on the other hand, has expressly rejected the Second Circuit rule and has held, instead, "that upon a showing of possible conflict of interest or prejudice, however remote, we will regard joint representation as constitutionally defective." United States ex rel. Horta v. DeYoung, 523 F.2d 807, 808-09 (3d Cir. 1975); United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973); Walker v. United States, 422 F.2d 374 (3d Cir.), cert. denied, 399 U.S. 915, 90 S. Ct. 2219, 26 L. Ed. 2d 573 (1970).
*588 A third approach, which focuses on the attendant procedural safeguards rather than the degree of prejudice required, was called to the Court's attention by the petitioner. The D.C. Circuit has imposed an affirmative duty upon the trial court to "ascertain whether each defendant has an awareness of the potential risks of [retaining joint counsel] and nevertheless has knowingly chosen [to do so]." Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359, 360 (1965). This rule has been characterized by the Third Circuit as being one which assumes prejudice in the absence of such an inquiry by the trial judge.[6] Thus, in a case where no such inquiry was undertaken, the assumed prejudice renders joint counsel constitutionally defective per se.
While going no further than the degree of prejudice standard enunciated above, the Third Circuit has hinted its approval of the per se rule, both in Hart, supra, and in Government of Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir. 1973).
Because of its ease of mechanical application, the per se rule has much that commends it. Were such a rule applied, then the Third Circuit standard, which can charitably be characterized as difficult to apply, would be unnecessary because the focus of habeas review in the context of joint representation, in most cases, would be shifted from an after-the-fact examination of what could have, or should have, been done by defense counsel, to whether, after careful inquiry, the trial court found that a petitioner was aware of the dangers inherent in joint representation and chose to waive his right to separate counsel. The application of such a per se rule is also arguably consistent with the Supreme Court's holding in Glasser, supra, in that it avoids the condemned "nice calculations as to the amount of prejudice arising from its [right to the effective assistance of counsel] denial." Glasser, supra, 315 U.S. at 76, 62 S.Ct. at 467. On the other hand, while the Third Circuit standard is clearly a response to the Glasser holding, it appears that the required search for some "possible conflict of interest or prejudice, however remote," ineluctably leads to the "nice calculations" criticized by the Glasser Court.
The imposition of an affirmative duty upon a trial judge to conduct an inquiry into the selection of joint counsel is arguably foreshadowed in the Third Circuit by dicta approving the per se rule,[7] especially when considered along with the rather minimal showing required, under the present standard, to establish prejudice of constitutional dimension arising under the Sixth and Fourteenth Amendments. Nonetheless, the Third Circuit has not yet imposed a per se rule under its supervisory powers, nor has it squarely held joint representation to be a per se violation.[8] Further, it has recognized that a "review of the state court proceedings is narrow for `not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a "failure to observe that fundamental fairness essential to the very concept of justice."'" United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir. 1976). Comity considerations and grave reservations about the lasting viability of a per se rule as a matter of constitutional dimension impel me to decline petitioner's invitation to adopt a per se rule. Accordingly, attention is now turned to applying the Third Circuit test.[9]
*589 In assessing whether there has been "a showing of possible conflict of interest or prejudice, however remote" the record has been examined "to determine whether or not separate representation might have made a difference in petitioner's choice of defense strategy that might have differentiated [his] position from that of [his] co-defendant." United States ex rel. Horta v. DeYoung, supra, 523 F.2d at 809. In reviewing the trial record to ascertain what other defense stratagem might have been employed, it must be kept in mind that defense counsel had formidable obstacles in the form of incontrovertible facts, viz., (1) the eye witness identification of petitioner and his co-defendant by the victim, (2) sexual intercourse took place, and (3) the prosecuting witness stated that she offered only minimal resistance because she feared other physical harm. Against this background, and following Horta, the appropriate method to be employed in this Circuit is to seek to identify those portions of petitioner's trial defense where separate counsel, unburdened by possibly conflicting duties, could have taken a different, and possibly more successful, "tack" than was taken by joint counsel. For reasons set forth below, it is concluded there has been absolutely no showing of a possible conflict of interest or prejudice by reason of petitioner's joint representation with his co-defendant.
Petitioner alleges that two sets of factual circumstances raise areas of possible prejudice. First, he points to the fact that he and his co-defendant offered different theories of defense to each of the charges against them. Secondly, Morgan asserts that his counsel's duty to Hill prevented vigorous cross-examination of Hill regarding his pretrial remarks that tended to inculpate Morgan.
Regarding the first claim of ineffective assistance of counsel, it is true that, as a defense to the rape charge, petitioner did offer a theory different from that of his co-defendant. Hill's sole defense was consent, and he was willing to stipulate to the fact that he had had intercourse with the prosecutrix. The petitioner, on the other hand, while asserting that his initial advances went unresisted by the prosecutrix, maintained that his state of alcoholic intoxication rendered him unable to perform the act. Beyond establishing this fact of differing defense theories, however, petitioner has failed to show how such a difference resulted in any possibility of prejudice. In attempting to convince the jury that the prosecutrix consented to intercourse with Hill, it appears that joint counsel was not, in any way, disabled from zealously advancing Morgan's defense of physical inability. Because counsel was not prevented, by the fact of joint representation, from proceeding as separate counsel might have, no showing of a possibility of prejudice has been made.
Had co-defendant Hill similarly denied having had intercourse with the prosecutrix, thus offering the same defense as Morgan, then the possibility of prejudice would be clear. The jury heard and obviously believed the prosecutrix and medical testimony establishing the fact of intercourse. Therefore, if both defendants had denied having done the act, the jury would probably have concluded that at least one of the defendants had lied. Clearly, it would then have been in the interests of each defendant to show that it had been his co-defendant, and not himself, who was guilty. In such a situation, where the best exculpatory theory is one which necessarily inculpates a co-defendant, the possibility of prejudice is inherent where defendants are represented jointly. See e. g., United States ex rel. Hart v. Davenport, supra; Government of Virgin Islands v. Hernandez, supra; United States ex rel. Small v. Rundle, 442 F.2d 235 (3d Cir. 1971). Absent from the instant case, however, were possible defenses, the advancement of which would have made the inculpation of a co-defendant necessary or advantageous. In short, while the defense theories of Hill and Morgan differed, their joint counsel could, and did, offer both without prejudicing either.
The petitioner also claims that his defense to the charge of kidnapping was prejudiced by a conflict with that of Hill. *590 An examination of the record indicates no such conflict or prejudice. Morgan testified that he stopped the car in which he and Hill were riding at Hill's direction, without knowing why he was told to stop; that Hill got out; and that he was unaware of the prosecutrix's presence until, apparently consensually, she approached the car with Hill.[10] Hill's testimony tended to support, rather than conflict with, Morgan's account of the events of the alleged rape.[11] Additionally, joint counsel, through Hill's testimony, made an effort to lessen the impact of that portion of the prosecutrix's testimony that provided significant evidence that Morgan was aware that her presence in the car was not voluntary. On direct examination, the prosecutrix testified that Morgan and Hill were conversing in the car and that Morgan, apparently getting impatient, said to Hill, "Tell her what we are going to do."[12] Hill responded by saying to the prosecutrix, who was seated in the car between the two defendants, "We are going to rape you and then we don't know what."[13] A permissible inference from this colloquy was that Morgan shared Hill's intention to take the prosecutrix away, against her will, and to rape her. In an apparent effort to combat that inference, defense counsel asked Hill, upon direct examination, "Was David talking much?", to which Hill replied, "I don't think he was saying anything."[14] Petitioner's trial counsel noted Hill's supporting testimony in making a motion for judgment of acquittal with respect to Morgan only.[15] The very fact that this motion was made solely on Morgan's behalf indicates that joint counsel were not prevented by conflicting duties from pursuing the petitioner's best interests.
The petitioner's next claim regarding alleged ineffective assistance of counsel involves co-defendant Hill's pre-trial statement that "[Hill] had intercourse with her and Lucky [Morgan] had intercourse with her."[16] Morgan raises the spectre of counsel's dilemma: Should joint counsel have impeached Hill's credibility, in order to aid Morgan, or refrain out of duty to Hill, and allow Hill's statement to implicate Morgan? If Hill had steadfastly asserted, on the stand, the truth of the pre-trial statement, then this dilemma would appear real and disabling. However, it is clear upon the record that no impeachment was necessary to Morgan's defense, because Hill, from the very first mention of his pre-trial statement, denied its accuracy, saying, instead, that he did not "believe David had intercourse with her."[17] Hill having done all that a separate counsel for the petitioner could do, no disability was placed upon joint counsel.
Counsel, in concert with petitioner's co-defendant, did all that could be done in view of the unshakeable identification of the defendants and the strong, damaging, substantive testimony of the victim. That circumstance distinguishes the instant case from Government of Virgin Islands v. John, supra.[18]
Alleged Denial of Right to Confrontation
The alleged conflicts of interest raised by the joint representation, and the resulting disability placed upon counsel regarding the cross-examination of Hill, also provide the basis for the petitioner's second constitutional claim i. e., that his right of confrontation was denied. The above conclusion regarding the petitioner's ineffective assistance of counsel controls the outcome *591 on the right to confrontation issue. Because Hill denied the accuracy of his pre-trial statement himself and otherwise tried to exculpate Morgan, no right to confrontation was abridged.
Failure to Instruct the Jury on Voluntariness
The petitioner asserts that the trial court committed constitutional error in failing to instruct the jurors that they were to make a determination of the voluntariness of his pre-trial statement, and that, if they were to find the statement involuntarily made, then it could not be used in the ultimate determination of guilt or innocence. As authority for his proposition, the petitioner cites Wilson v. State, 10 Terry 37, 109 A.2d 381 (Del.Super.1954). Assuming arguendo that Delaware law entitles a defendant to such an instruction, such right cannot be the basis for habeas relief unless it is of federal constitutional dimension. See Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); U. S. ex rel. Hayward v. Johnson, 508 F.2d 322, 330 (3d Cir. 1975).
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), relied upon by petitioner, does not suggest that his right to such an instruction is mandated by the federal constitution. The infirmity with the challenged procedure in Jackson was that the trial court, assuming that it found contradictory evidence on the issue of voluntariness, sent the question to the jury without any determination of its own. Inherent in this procedure was the danger that the jury, when considering both the guilt/innocence and voluntariness issues simultaneously, might allow strong evidence of guilt to influence its determination of voluntariness. Furthermore, a general verdict gave no indication that the two issues had been properly separated. Thus, Jackson requires an independent judicial determination of the voluntariness issue. United States ex rel. Rush v. Ziegele, 474 F.2d 1356, 1358 (3d Cir. 1973). At the same time, it is equally clear that Jackson does not require that the jury make a determination in addition to that of the court. See Jackson, supra, 378 U.S. at 378 n.8, 84 S. Ct. 1774; Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972).
Related to his challenge regarding the procedural safeguards attending the admission of pre-trial statements over claims of involuntariness, petitioner also complains that the independent judicial determination of voluntariness, required by Jackson, occurred only after reversal and remand by the Delaware Supreme Court. Such an "after the fact" determination, argues the petitioner, is an inadequate remedy for the trial court's failure to resolve the issue at trial, and, therefore, he is entitled to a new trial instead. I disagree. The procedure employed by the Delaware State courts was specifically recognized and approved of in Boles v. Stevenson, 379 U.S. 43, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964).
Allegedly Erroneous Determination of Voluntariness
Petitioner's final claim challenges the determination of voluntariness made by the trial court at the limited post-trial hearing and affirmed by the Delaware Supreme Court.
Guidance for review, by a federal habeas corpus court, of such determinations made by state courts, is found in United States ex rel. Rush v. Ziegele, supra, 474 F.2d at 1358-59:
"Factual findings in state court proceedings are presumed correct unless the fact-finding procedures were not adequate to afford a full and fair hearing, or unless material facts were not adequately developed. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), now codified in 28 U.S.C. § 2254(d)(2) and (3). Determination of whether a confession was made voluntarily, however, is a mixed question of fact and law. Federal courts exercising habeas corpus jurisdiction, therefore, cannot abdicate their responsibility to assess whether state court judges have correctly applied federal constitutional standards. Watts v. Indiana, 338 U.S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801 *592 (1949); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 738 (3d Cir. 1973). Two questions thus are presented by appellant's claim that his confession should not have been submitted to the jury: (1) Was an adequate fact-finding hearing conducted by the state trial court? and (2) Was the trial court correct in determining [appellant's] confession was given voluntarily?"
See also United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 51 (2d Cir.), cert. denied, 423 U.S. 872, 96 S. Ct. 138, 46 L. Ed. 2d 102 (1975); United States ex rel. Dickerson v. Rundle, 430 F.2d 462 (3d Cir.), cert. denied, 408 U.S. 928, 92 S. Ct. 2498, 33 L. Ed. 2d 332 (1972).
Having conducted the two inquiries mandated by Rush, I find that petitioner Morgan was given a full and fair hearing on the issue of voluntariness by the state court; and, furthermore, that the determination reached was correct.
With respect to the first inquiry, the petitioner has raised no complaint alleging that the post-trial hearing was conducted unfairly or that material matters went undeveloped. Having reviewed the transcript, this Court concludes that petitioner was, in fact, given a "full and fair hearing."
The second inquiry requires a brief discussion of the evidence presented on the issue of voluntariness, and a measurement of the findings based on that evidence against constitutional standards. In conducting this inquiry, reference is necessarily made to the specifies of petitioner's claim, the record with respect to those specifics, and petitioner's background.
The petitioner's claim of involuntariness rests largely upon his assertion that he was under the influence of various drugs during the custodial interrogation. It is clear, however, that the trial court attached little, if any, credibility to Morgan's testimony regarding the drugged condition. The respondent might contend that such a determination of credibility is not reviewable by a federal court exercising habeas corpus jurisdiction. See Jones v. Wainwright, 494 F.2d 1184 (5th Cir. 1974); Robertson v. Riddle, 404 F. Supp. 1388 (W.D.Va.1975). This Court need not reach that question, because such a review, if conducted, would result in agreement with the state court's conclusion that Morgan's testimony concerning his allegedly drugged condition lacked credibility.
Two references to the record support such a finding. First, while Morgan gave testimony at his trial relating to the alleged involuntariness of his statement, no mention was made of the influence of drugs. That this claim did not surface until several months later, at the post-trial hearing, raises doubts about the credibility of the claim. Secondly, both the interrogating officer[19] and Morgan himself[20] testified that the petitioner was read, and did understand, his Miranda rights. This understanding seems inconsistent with the degree of intoxication that petitioner now alleges. Furthermore, the interrogating officer testified that the petitioner, except for slight nervousness, appeared normal.[21]
The petitioner also seeks to support his claim of involuntariness by suggesting that he gave his pre-trial statement out of fear, and that the giving of a statement presented an opportunity to end the interrogation. Again, the trial court chose to disbelieve him, and again, the record discloses good reason for such disbelief; for petitioner himself, at trial, denied such fear.[22] He also admitted that no threats or promises had been made.[23]
Morgan claimed that he had asked for an attorney before his statement was taken.[24] The context of that testimony indicates that the interrogating officer, *593 Trooper West, was present at the time of the request.[25] Later, however, petitioner stated that Trooper West was not present, and that he could not recall to whom he had made the request.[26] Trooper West denied ever receiving such a request.[27] In sum, the record supports a factual conclusion that Morgan never made the request. Miranda warnings having been given at "just about every door [Morgan] walked through,"[28] and no request for counsel having been made, the trial court's conclusion that no Miranda violation was indicated was correct.
With respect to the petitioner's background, the trial court noted that he had completed the eighth grade and had been involved with law enforcement agencies on seven previous occasions.[29] Thus, Morgan was no stranger to police interrogation. Indeed, all of the foregoing reveals neither an individual whose "will was overborne," Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963), nor one whose statement was not the product of a "rational intellect and a free will," Blackburn v. Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960).
It is concluded there is no merit to petitioner's contentions and that the determinations made by the State court were correct. For the reasons stated above, petitioner's application for a writ of habeas corpus will be denied.
NOTES
[1] State v. Hill, Del.Super., Cr. A. No. 1337 1970.
[2] Hill v. State, 316 A.2d 557 (Del.1974).
[3] Hill v. State, Cr. A. No. 1337-1970 (Del.Super.1975) (Memorandum Opinion).
[4] Hill v. State, 347 A.2d 131 (Del.1975).
[5] Two additional claims, namely those relating to the denial of a speedy trial and Morgan's appearance, at his trial, in prison garb, have been previously dismissed for lack of exhaustion of state remedies by prior Order of this Court, dated April 7, 1976.
[6] United States ex rel. Hart v. Davenport, 478 F.2d 203, 211 (3d Cir. 1973).
[7] Hart v. Davenport, supra; Government of Virgin Islands v. Hernandez, supra.
[8] Cf. United States ex rel. Horta v. DeYoung, 523 F.2d 807 (3d Cir. 1975) (habeas writ granted); Hart v. Davenport, supra (habeas writ granted); Government of Virgin Islands v. John, 447 F.2d 69 (3d Cir. 1971) (habeas writ granted); but cf. United States v. Rispo, 470 F.2d 1099 (3d Cir. 1973). If imposition of an affirmative duty upon a trial judge to conduct an inquiry into the selection of one attorney for two or more defendants occurs, it will be the product of an exercise of the Third Circuit's supervisory power.
[9] Petitioner also alleges that no waiver of his right to effective assistance of counsel was ever given. The conclusion below that this right was not impaired obviates the need for any inquiry into its waiver.
[10] Trial Transcript (T.T.) at 278.
[11] T.T. at 204.
[12] T.T. at 35.
[13] Id.
[14] T.T. at 207.
[15] T.T. at 275.
[16] T.T. at 258.
[17] T.T. at 261. See also T.T. at 257-58.
[18] In addition to being distinguished on its facts, that portion of Government of Virgin Islands v. John, supra, which arguably controls the instant matter was an alternate holding expressly noted by the Third Circuit to have been made without benefit of briefs.
[19] Hearing Transcript (H.T.) at 20.
[20] H.T. at 89, 90; T.T. at 172.
[21] H.T. at 113.
[22] T.T. at 186.
[23] Id.
[24] T.T. at 180.
[25] T.T. at 180; see also T.T. at 175-76.
[26] T.T. at 187.
[27] H.T. at 22.
[28] H.T. at 88.
[29] H.T. at 118.
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153 A.2d 118 (1959)
EMPLE KNITTING MILLS, Appellant,
v.
CITY OF BANGOR, Allec M. Wescott, Hazen C. Emery & Jay E. Alley, Assessors, Appellees.
Supreme Judicial Court of Maine.
June 26, 1959.
*119 Gerald E. Rudman, Bangor, for appellant.
Abraham J. Stern, Bangor, for defendant.
Before WILLIAMSON, C.J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.
SIDDALL, Justice.
On report. This case originated in the Superior Court for Penobscot County and comes here on an agreed statement of facts and stipulations. The record shows that the appellant, a Maine corporation having its place of business at Bangor, was in 1957 and prior thereto engaged in the business of manufacturing knit wear. The appellees are the City of Bangor, and its duly appointed and qualified Assessors for the year 1957. For the year prior to April 1, 1957, the appellant had on hand in the City of Bangor a constantly fluctuating quantity of raw materials consisting of yarns, findings, buttons, etc., and partially finished and finished knit goods. Appellant duly submitted a list of all of its taxable property in the City of Bangor, averaged for the year next prior to April 1, 1957. The Assessors assessed a tax on the appellant's personal property set forth above based on the value of the property on hand on April 1, 1957.
Appellant duly filed a written application for abatement of so much of its 1957 tax as exceeded the amount which would have been due had the valuation been based on average inventory. The application for abatement was denied, and an appeal was taken to the Superior Court.
It was stipulated by the parties that all procedural requirements have been duly and seasonably complied with or waived. It was further stipulated that the only issue upon this appeal is whether or not appellant's inventory hereinbefore described was taxable on the basis of the amount on hand on April 1, 1957, or on the average amount kept on hand during the preceding year.
(1) If the former, judgment is to be entered for the City of Bangor for $8,322.18, without interest but with costs of court, in the agreed amount of $50.
*120 (2) If the latter, judgment to be entered for the City of Bangor in the amount of $6,573.35, without interest but with costs of court, in the agreed amount of $50.
The pertinent provision of the statute applicable to this case is contained in Sec. 3, R.S. Chap. 91-A, which reads as follows:
"Real estate and personal property taxable; personal property employed in trade; taxable year.All real estate within the state, all personal property of residents of the state, and all personal property within the state of persons not residents of the state is subject to taxation on the 1st day of each April as hereinafter provided; and the status of all taxpayers and of such taxable property shall be fixed as of that date; provided, however, that personal property employed in trade shall be taxed on the average amount kept on hand for sale during the preceding taxable year, or any portion of that period when the business has not been carried on for a year. The taxable year shall be from April 1 to April 1. (1955, c. 399, § 1.)" (emphasis ours)
Under the stipulation the parties are in agreement that the personal property in question was taxable in the City of Bangor, and we are therefore not concerned with the question of the situs of the property for the purpose of taxation. Our problem is to determine the correct method of valuation.
Prior to 1919 all personal property was assessed to the owner in the town where he was an inhabitant on the first day of April. However, in 1919 the legislature amended the law relating to the taxation of personal property by providing that personal property employed in trade should be taxed on the average amount kept on hand for sale during the preceding year. This amendment is now a part of R.S. Chap. 91-A. Sec. 3. The appellant claims that its personal property was of such a nature that it should have been taxed under the "average amount" formula set forth in said Sec. 3.
Was the personal property which was the subject of taxation in this case employed in trade within the meaning of the statute? It undoubtedly was. In Gower v. Inhabitants of Jonesboro, 83 Me. 142, 145, 21 A. 846, 847, in defining this term as used in what is now R.S. Chap. 91-A. Sec. 9, Par. I, relating to taxation of personal property, our court said:
"The appropriate meaning of `trade,' as used in the statute, as defined by Bouvier, embraces `any sort of dealings by way of sale or exchange; commerce; traffic.' Webst. Dist. Trade."
See also Inhabitants of Farmingdale v. Berlin Mills Co., 93 Me. 336, 338, 339, 45 A. 39. This term is applicable to a manufacturer of articles of trade as well as to a wholesale or retail dealer in such articles.
The appellant was engaged in the business of manufacturing merchandise for sale. The finished product, the unfinished product and all materials which were kept on hand for the purpose of ultimate incorporation into the finished merchandise were employed in trade within the meaning of the statute.
The statute further provides that such property employed in trade shall be taxed on the average amount kept on hand for sale during the preceding taxable year. Was any or all of the personal property taxed to the appellant kept on hand for sale within the meaning of the statute?
The fundamental rule in the construction of a statute is the legislative intent. It is the intent as expressed in the statute but interpreted with reference to the apparent purpose and subject matter of the legislation. See State v. Gaudin, 152 Me. 13, 16, 120 A.2d 823; Hunter v. Totman, 146 Me. 259, 265, 80 A.2d 401; Craughwell v. Mousam River Trust Company, 113 Me. 531, 95 A. 221.
*121 "The literal meaning of the language employed in a statute should be followed only when the policy and intent of the Legislature is implemented by such construction. Inhabitants of Georgetown v. Hanscome, 108 Me. 131, 79 A. 379." N. J. Gendron Lumber Co. v. Inhabitants of Town of Hiram, 151 Me. 450, 455, 120 A.2d 560, 562.
It is the duty of the court to interpret the language of a statute so as to carry out the obvious purpose which the legislature had in mind. Steele v. Smalley, 141 Me. 355, 357, 44 A.2d 213.
A construction should be avoided which leads to a result clearly not within the contemplation of the legislature or which leads to a result which is absurd, even though the strict letter of the law may have to be disregarded. Inhabitants of Town of Ashland v. Wright, 139 Me. 283, 29 A.2d 747.
In N. J. Gendron Lumber Co. v. Inhabitants of Town of Hiram, 151 Me. 450, 120 A.2d 560, supra, the court in discussing the purpose of the "average amount" formula made the following statement:
"We do not consider, however, that the `average amount' formula is inapplicable merely because the lumber is not employed in trade in the town where it is taxable. The Legislature in enacting the formula has not so limited it and to construe the statute so narrowly would, we think, defeat the purpose which was intended. What was that purpose? As a practical matter, assessors cannot and do not ordinarily take inventory on each April 1st, nor does the taxpayer for that matter. The property is in trade and as purchases are made and sales occur, the inventory fluctuates. If the average is to be used, the taxpayer feels no necessity to reduce inventory before April 1st. Conversely, he feels free to increase inventory before the effective tax date if market conditions indicate the advisability of such action. The result, based upon an average, more realistically and less artificially reflects his holdings of personal property as a basis of measuring his public obligation."
The finished merchandise was clearly personal property kept on hand for sale within the meaning of the statute, and should have been valued under the "average amount" formula. A question arises as to the taxable status of the remaining personal property. Strictly speaking, such property was not kept for sale in the usual course of the business of the appellant. However, it was kept for eventual incorporation into the merchandise to be sold. Applying the principles of construction set forth above, it seems to us that the purpose of the legislation establishing the "average amount" formula, as set forth in N.J. Gendron Lumber Co. v. Inhabitants of Town of Hiram, supra, was to establish a reasonable and sensible formula equally applicable to the finished product and to the materials which make up the finished product. We do not believe the legislature intended that a tax on the goods ready for sale should be assessed on the "average amount" formula, and that a tax on the remaining personal property inventory should be based upon the value of such property on hand April 1st. An interpretation which would allow such a method of taxation would lead to an absurd result not within the contemplation of the legislature.
All of the personal property of the appellant should have been assessed on a valuation based on the average amount kept on hand during the taxable year from April 1, 1956, to April 1, 1957.
In accordance with the stipulation of the parties, the entry will be
Judgment for the City of Bangor in the amount of six thousand five hundred seventy-three dollars, thirty-five cents without interest and with costs of court assessed at fifty dollars.
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475 S.W.2d 479 (1971)
CITY OF LOUISVILLE, a Municipal Corporation, Appellant,
v.
William R. MUNRO and Sara J. Munro, Appellees.
Court of Appeals of Kentucky.
November 19, 1971.
Rehearing Denied February 18, 1972.
*480 James E. Thornberry, Director of Law, Bernard S. Goldstein, Robert E. Sims, Asst. Directors of Law, Louisville, for appellant.
Henry J. Burt, Jr., Louisville, for appellees.
CULLEN, Commissioner.
William R. Munro and wife, who own a residence adjoining the Louisville Zoological Gardens, obtained a $7,500 judgment, on a jury verdict, against the City of Louisville, as damages for depreciation of the value of their property from the establishment of the city zoo next door to them. The city appeals, asserting various grounds of error, the first of which is that the trial court erred in not sustaining the city's motions for a directed verdict and for judgment notwithstanding the verdict.
The Munros built their residence in 1961. The selection of the tract of land adjoining the Munros' property as the site for the zoo was made by the city in 1964. A ground-breaking ceremony was held in January 1965 and work on clearing the land began a few months later. The Munros brought the instant action for damages in May 1965, before any construction had been commenced. The action was not tried, however, until early in January 1969, following the opening of the zoo which occurred in May 1968.
As evidenced by the fact that the action was brought before the zoo was built, and by the record in the action, the Munros rested their claim for damages squarely and exclusively on the proposition that the mere establishment of the zoo (without regard to the method of its operation) depreciated the value of the Munro's property, wherefor the city was liable on a theory of "reverse condemnation" or a theory of nuisance. It is true that the Munros made some mention of three instances of damage from water or mud flowing onto their property from the zoo, but the evidence did not identify the cause as to whether it was something temporary occurring during construction of the zoo or was of a permanent nature, and the instructions did not submit any issue of damages attributable to the water or mud. It is true also that the Munros mentioned noise from a miniature train operated on the zoo grounds, and from automobiles entering and leaving the grounds, but the train noise was in the category of a temporary nuisance easily remediable and thus not furnishing a basis for recovery of damages for permanent diminution of market value, and the auto noise was not shown to be in excess of that experienced generally by persons who reside along heavily traveled streets, so it did not furnish a basis for recovery of damages. See Louisville and Jefferson County Air Bd. v. Porter, Ky., 397 S.W.2d 146.
The fact that the claim of damages was not predicated on water or mud intrusion, or noise, is shown conclusively by the following excerpts from the testimony:
(William Munro)
"Q. 151 All right. And in your opinion was the damage suffered on the announcement of the site, we are referring mainly to this January 1965 date when the ground was actually broken?
A I would say that is when the devaluation took place."
*481 (A neighbor)
"Q. 8 Has there in your opinion been a change in the values in that neighborhood?
A Yes, sir.
Q 9 Again, in your opinion, what was the cause of that change?
A The location of the zoo.
* * * * * *
Q. 14 Tell us why that property was depreciated and how?
A From the time that the zoo was announced I think that on property values, in my way of thinking, our property values went down, since that time there has been very little activity in the subdivision, the lot next to me has never sold."
(Another neighbor)
"Q 16 In your opinion the establishment of that zoo, did that lessen property values in that neighborhood * * *?
A In my opinion it did.
* * * * * *
Q. 25 In your opinion the property was reduced substantially in value?
A True.
Q. 26 And again, your opinion, this was based upon the installation of the zoo, is that true?
A That's true."
(A realtor)
"Q. 9 All right. In your opinion did the establishment of the zoo at that site affect the value of the properties adjacent thereto.
A I would think that so far as single family residences are concerned it certainly affected the value downward.
* * * * * *
Q. 14 Mr. Boyles, do you think that this property has increased or decreased in value since the announcement and breaking of ground for the zoo?
A It has decreased in value.
Q. 15 Do you think that the entire decrease is reflected at this minute, or at what minute do you think that might occur?
A Well, I think that probably the decrease in value, the effective value will come basically in two stages, one, it was certainly affected with the announcement of the zoo, and this I would have to couple with breaking ground and building and establishing the zoo. * * * I don't think that they have witnessed the full result of the zoo, probably until it is in full operation, and more probably until late this summer or this summer the more the zoo is used, the more effect this will have * * *"
(Another realtor)
"Q. 10 First of all, you say that the establishment of the zoo was detrimental to this property?
A Yes, sir.
Q 11 Was it a substantial detriment, or what you might in layman's language say a minor league detriment?
A I think it would be a considerable detriment to the property, it would affect its value, oh, between, percentage-wise, would affect the value of it from 20 to 30 percent.
* * * * * *
Q. 17 You say that when the zoo was selected in this area, that at that time there was a determination made that the lending would be lesser in this area than it was formerly?
A Yes, sir, that's correct. * * *
* * * * * *
Q. 50 (Cross-examination) Just one question, Mr. Hoffman: In your professional opinion as a realtor, the institution of a commercial building or a church or a *482 school or a railroad track would be detrimental to adjoining property owners the same as the creation of the zoo was, is that not correct?
A Yes, sir."
Further indication of the theory on which the plaintiffs' case was presented is found in the instructions, which authorized recovery on a finding that the establishment of the zoo would be reasonably expected to cause annoyance to the plaintiffs and that the market value of the plaintiffs' property had been reduced by the establishment of the zoo "at this place." And when objection was made to the instructions, by the city, on the ground that "there is no evidence in the record sufficient to try the case as a nuisance case," the trial judge replied: "There is not any evidence in there except it should be anticipated and I have tried to put that thought in."
The plaintiffs, despite their apparent belief that it is so, have cited no authority for the proposition that a zoo is a nuisance per se, nor do we believe there is any validity in that proposition, in the light of the cases in which we have held not to be nuisances per se such things as a sewage treatment plant, Bartman v. Shobe, Ky., 353 S.W.2d 550; an airport, Louisville and Jefferson County Air Board v. Porter, Ky., 397 S.W.2d 146; an undertaking establishment, L. D. Pearson & Son v. Bonnie, 209 Ky. 307, 272 S.W. 375; and a cemetery, McCaw v. Harrison, Ky., 259 S.W.2d 457.
The zoo not being a nuisance per se, it was incumbent upon the plaintiffs to prove that it was in fact a nuisance, which they failed to do. Apparently the plaintiffs, and the trial court, were under the impression that Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181, in referring to use of one's property that causes "annoyance" to another, means that a dislike by a person of another's use of property is an "annoyance" which may give rise to a claim for damages. Of course, Mudd has no such meaning. The opinion in Mudd makes clear that the kind of "annoyance" it refers to is "such as to interfere materially with ordinary physical comfort or the reasonable use of property." As we said in Gem-Elkhorn Coal Co. v. Everidge, Ky., 309 S.W.2d 755, the rule that each property owner must use his own property in such a manner as not to "interfere" with that of his neighbor does not mean that every annoyance constitutes an injury for which damages may be granted.
The general rule, as set forth in 58 Am.Jur.2d, Nuisances, sec. 42, p. 607, is that in order to be a nuisance the use of property must disturb physical comfort or be offensive to physical senses.
The plaintiffs in the instant case proved no more than that the value of their property depreciated when the site was selected for the zoo. That proof did not authorize any recovery on a nuisance theory. The plaintiffs maintain, however, that they were entitled to recover on the theory of "reverse condemnation."
We are not cited to, or aware of, any case in which recovery was allowed on the theory of "reverse condemnation" where the alleged taking, injury or interference did not have physical aspects. The plaintiffs cite Paducah v. Allen, 111 Ky. 361, 63 S.W. 981, City of Louisville v. Hehemann, 161 Ky. 523, 171 S.W. 165, Com., Department of Highways v. Gisborne, Ky., 391 S.W.2d 714, and Shipp v. Louisville and Jefferson County Air Board, Ky., 431 S.W.2d 867, but each of those cases involved a physical taking or injury. In Allen infection by contagious disease was involved; in Hehemann the plaintiffs' property was invaded by flies, rats and offensive odors; in Gisborne there was physical injury to the plaintiffs' land; and in Shipp the damages consisted of cutting down trees. In the instant case, the plaintiffs claim that the depreciation of value occurred when the selection of the site for the zoo was announced, which fact *483 involved nothing evenly remotely of a physical nature.
In 26 Am.Jur.2d, Eminent Domain, sec. 163, pp. 834, 835, the law is stated to be as follows:
"* * * It is generally agreed that the damage clause of the state constitutions has no application to the depreciation of the market value of a parcel of land caused by the establishment of some public building or other public undertaking in close proximity thereto, when there is no physical injury to the property or impairment of any right appurtenant thereto, and the public use is not of such a character as would have constituted a nuisance at common law and given rise to an action by an adjoining owner in the absence of statutory protection. Thus, although the establishment of a cemetery, a fire engine house, a water tower, a jail, a hospital, or a school, or a playground therefor in a residential district may have an actual determinable effect on the market value of land in the neighborhood, reducing such value to a considerable degree, the owners of the property are not as a rule entitled to compensation. * * *"
It is our conclusion that the plaintiffs did not establish a basis for recovery under either a nuisance theory or a "reverse condemnation" theory.
In Louisville and Jefferson County Air Board v. Porter, Ky., 397 S.W.2d 146, at 152, this court said:
"It is fundamental that a buyer of property assumes the risk of changing community conditions. Sometimes the value of his property is enhanced, and he does not have to pay for the enhancement. Sometimes it declines, and he has no recourse. These facts of life are not subject to an exception simply because the source of the transition can be identified and is suable. * * *"
The foregoing comments seem to be particularly appropriate here.
The judgment is reversed with directions to enter judgment dismissing the complaint, in accordance with the defendant's motion for judgment notwithstanding the verdict.
All concur except STEINFELD, J., who did not sit.
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30 N.J. 425 (1959)
153 A.2d 321
MAJESTIC REALTY ASSOCIATES, INC., AND BOHEN'S, INC., PLAINTIFFS-RESPONDENTS,
v.
TOTI CONTRACTING CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT, AND PARKING AUTHORITY OF THE CITY OF PATERSON, NEW JERSEY, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued June 5, 1959.
Decided July 6, 1959.
*427 Mr. Joseph J. DeLuccia argued the cause for plaintiffs-respondents (Mr. Edward G. Weiss, attorney).
Mr. Irving C. Evers argued the cause for defendant-appellant, Parking Authority of the City of Paterson (Mr. George A. Vaccaro, attorney).
*428 The opinion of the court was delivered by FRANCIS, J.
Plaintiffs Majestic Realty Associates, Inc., and Bohen's, Inc., owner and tenant, sought compensation from defendants Toti Contracting Co., Inc. and Parking Authority of the City of Paterson, New Jersey, for damage to Majestic's building and to Bohen's goods. The claim arose out of the activity of Toti in demolishing certain structures owned by the Authority. In the trial court, the action against the Authority was dismissed at the close of the plaintiffs' proof on the ground that Toti was an independent contractor for whose negligence the Authority could not be held responsible. The issue of the contractor's liability was submitted to the jury, which returned substantial verdicts for both plaintiffs. Majestic and Bohen's appealed from the dismissal in favor of the Authority. Toti did not seek a review. The Appellate Division by a vote of two to one reversed and ordered a new trial. 54 N.J. Super. 419 (1959). The matter is now before us as of right for final determination. R.R. 1:2-1(b).
Majestic is the owner of the two-story premises at 297 Main Street, Paterson, New Jersey. Bohen's is the tenant of the first floor and basement thereof in which it conducted a dry goods business. The Authority acquired properties along Main Street beginning immediately adjacent to Majestic's building on the south and continuing to Ward Street, the next intersecting street, and then east on the latter street for 150 feet. The motive for the acquisition was to establish a public parking area. Main Street is one of the principal business arteries of the city and the locality was completely built up.
Accomplishment of the Authority's object required demolition of the several buildings on both streets. Some time prior to October 26, 1956, a contract was entered into by the Authority with Toti to do the work. The razing began on the Ward Street side and moved northwardly until the structure next to Majestic's premises was reached. It was at least a story (about 20 feet) higher than Majestic's roof; *429 the northerly wall of the one was "right up against" the southerly wall of the other and the two walls ran alongside each other for 40 feet.
In the process of leveling this adjacent building, the contractor first removed the roof, then the front and south sidewalls and all of the interior partitions and floors. Thus, the north wall of brick and masonry next to Majestic's structure was left standing free. Expert testimony was adduced to show that the proper method of demolition under the existing circumstances would have been to remove the roof, leaving the interior partition work for support, and to begin to take the north wall down "never leaving any portion [of it] at a higher point than the interior construction of the building would form a brace."
In demolishing the walls, Toti used a large metal ball, said to weigh 3,500 pounds, suspended from a crane which was stationed in the street. There was testimony that during the week prior to the accident, every time the ball would strike a wall, debris and dirt would fly and the Majestic building "rocked."
Further expert testimony indicated that in dealing with the free-standing north wall, the ball should have been made to hit the very top on each occasion so as to level it a few bricks at a time. This course was followed at first; the ball was swung from north to south and the dislodged bricks were catapulted away from Majestic's building and onto the adjoining lot. After a time, work ceased for a few minutes. On resumption, the operator of the crane swung the ball in such a manner that it struck at a point some 15 feet below the top of the wall. The impact propelled the uppermost section of the wall back in the direction from which the blow had come with the result that a 15 by 40 foot section fell on Majestic's roof, causing a 25 by 40 foot break therein. One of Bohen's employees, who saw the incident, asked the crane operator in the presence of Toti's president: "What did you do to our building?" He replied, "I goofed."
*430 In characterizing a demolition undertaking of this type in a built up and busy section of a city, and in particular where one building to be razed adjoined another which was to remain untouched, plaintiffs' expert witness said it was "hazardous work"; "one of the most hazardous operations in the building business." And with reference to the leveling of a building so close to another structure which was not to be harmed, he asserted that the recognized procedure is to take it down in small sections so as not to lose control of the operation. This standard conforms with N.J.S.A. 34:5-15 which specifies that "[i]n the demolition of buildings, walls shall be removed part by part."
On the proof outlined, the trial court recognized that the work was hazardous in its very nature, but did not feel that it constituted a nuisance per se. Therefore, he ruled that the Authority, not having had or exercised control over the manner and method or means of performing the demolition operation, could not be held for the negligent act of its independent contractor. The majority of the Appellate Division took the position that where the activity contracted to be undertaken is such that potential danger exists regardless of reasonable care on the part of the contractor, the landowner cannot, by contractual delegation, immunize himself against liability for negligence of the contractor which causes injury to a member of the public or to an adjoining property owner. The dissent expressed the view that under the evidence the mishap resulted from a negligent failure to follow the standard procedure for the destruction of the wall and not from a danger which inhered in the work itself regardless of the exercise of care. Thus, it was declared that the contract protected the Authority against liability for Toti's negligence in the performance of the work. It remains for this court to search out the just rule to be applied in the circumstances.
The problem must be approached with an awareness of the long settled doctrine that ordinarily where a person engages a contractor, who conducts an independent business *431 by means of his own employees, to do work not in itself a nuisance (as our cases put it), he is not liable for the negligent acts of the contractor in the performance of the contract. Terranella v. Union Bldg. & Construction Co., 3 N.J. 443, 446, 447 (1950); Mann v. Max, 93 N.J.L. 191, 193, 21 A.L.R. 1227 (E. & A. 1919); Cuff, Adm'x., v. Newark & New York R.R. Co., 35 N.J.L. 17 (Sup. Ct. 1870), affirmed 35 N.J.L. 574 (E. & A. 1871). Certain exceptions have come to be accepted, i.e., (a) where the landowner retains control of the manner and means of the doing of the work which is the subject of the contract; (b) where he engages an incompetent contractor; or (c) where, as noted in the statement of the general rule, the activity contracted for constitutes a nuisance per se. Terranella v. Union Bldg. & Construction Co., supra; Bergquist v. Penterman, 46 N.J. Super. 74 (App. Div. 1957), certification denied 25 N.J. 55 (1957); Trecartin v. Mahony-Troast Construction Co., 18 N.J. Super. 380 (App. Div. 1952).
In the present case, the suggestion is made that the language of the contract reveals a retention of control by the Authority of the method of Toti's performance sufficient to warrant the application of principles of respondeat superior in the interest of injured third persons. Our examination of the document convinces us otherwise. The plain import of the provisions is not to confer on the Authority the right to say how the job shall be done; the reservation is limited to supervision for the purpose of seeing that the work is done in accordance with the contract and specifications. The supervisory interest relates to the result to be accomplished, not to the means of accomplishing it. Giroud v. Stryker Transportation Co., 104 N.J.L. 424 (E. & A. 1928); Trecartin v. Mahony-Troast Construction Co., supra, 18 N.J. Super. at page 386.
As to exception (b), noted above, it is not claimed that the proof makes out a jury question on the charge that an *432 incompetent contractor was hired for the task of demolition. Incidental comment thereon, however, may be fruitful.
It has been intimated that the matter of the competency of a contractor should not be restricted to considerations of skill and experience but should encompass financial responsibility to respond to tort claims as well. See 2 Harper and James, The Law of Torts (1956), § 26.11, p. 1405; Prosser, Torts (2d ed. 1955), pp. 357-358; Morris, "Torts of Independent Contractors," 29 Ill. L. Rev. 339, 344 (1934); Steffen, "Independent Contractor and the Good Life," 2 Univ. of Chicago L. Rev. 501, 505 (1935). Research has not disclosed a case where the proposal has been applied. The matter was broached in Lawrence v. Shipman, 39 Conn. 586 (Sup. Ct. Err. 1873), involving a claim arising out of the negligence of a masonry contractor. There, the court said:
"I am not prepared to say that this fact [financial irresponsibility of the contractor] may not be of some weight where the work to be done is hazardous to others. If a person having an interest in a job which naturally exposes others to peril, should attempt to shield himself from responsibility by contracting with a bankrupt mechanic, I think the employers might be subjected for damages done by the contractor, but, as before stated, the work to be done by the contractor involved no peril in its usual performance, and I cannot hold the defendants liable under this claim." At page 590. (Insertion ours)
Inevitably the mind turns to the fact that the injured third party is entirely innocent and that the occasion for his injury arises out of the desire of the contractee to have certain activities performed. The injured has no control over or relation with the contractor. The contractee, true, has no control over the doing of the work and in that sense is also innocent of the wrongdoing; but he does have the power of selection, and in the application of concepts of distributive justice perhaps much can be said for the view that a loss arising out of the tortious conduct of a financially irresponsible contractor should fall on the contractee. Professor *433 Morris, in "Torts of Independent Contractors," supra, put it this way:
"If the contractee has to look out for the interests of others by using due care to pick a man with requisite skill to whom to entrust his enterprises, why should he not also have to look out for the interests of others by selecting a man with sufficient financing? And since there is usually a fool proof method of assuring himself that the contractor will meet all tort obligations in requiring an indemnity bond signed by responsible sureties, it would seem that in most cases the contractee would only measure up to the standard of due care so as to avoid responsibility when the contractor is able to discharge tort claims arising out of the enterprise." At page 344.
This passage was written in 1934. At the present time it is a matter of common knowledge that liability insurance to cover such demolition operations is available to contractors and it may be assumed fairly that procurement of that type coverage is regarded as an ordinary business expense. Financial responsibility has nothing to do with legal liability of the contractor. The fact of capacity to respond in damages, of course, would be immaterial on the issue of his negligence in causing a plaintiff's injury. If the principle under discussion became engrafted in the law and financial incapacity of the contractor became a factor to be considered in determining whether a competent contractor had been selected, such lack of capacity would be relevant only in an action against the contractee. And in any event, in the usual tort action against the latter, liability would not come into existence unless negligence of the contractor was established.
But this precise facet of the problem of Toti's competency was not raised at the trial or in the briefs. It arose as an emanation of the oral argument. Consequently, no decision is rendered with respect to it and the matter is expressly reserved.
Under exception (c), on which plaintiffs rely principally, liability will be imposed upon the landowner in spite of the engagement of an independent contractor if the work to be done constitutes a nuisance per se. The phrase "nuisance *434 per se," although used with some frequency in the reported cases, is difficult of definition. In McAndrews v. Collerd, 42 N.J.L. 189 (E. & A. 1880), McAndrews contracted to build a tunnel for a railroad. In the course of the work he constructed a magazine within the limits of Jersey City for the storage of explosive materials which were used in blasting the rock. An explosion occurred therein which did great damage to property in the vicinity. The Court of Errors and Appeals found liability without proof of negligence, declaring that the keeping of gunpowder, nitroglycerine or other explosive substances, in large quantities, in the vicinity of a dwelling house or place of business is a nuisance per se. Later, in Simon v. Henry,, 62 N.J.L. 486 (Sup. Ct. 1898), defendants were constructing a sewer in a public street and used dynamite to blast out trap rock in making the necessary excavation. Damage resulted to a nearby factory. The activity was held not to be a nuisance per se and a charge to the jury that negligence had to be shown was adjudged proper. In Doughty v. Atlantic City Business League, 80 A. 473 (E. & A. 1911), the League arranged with an independent contractor for a display of fireworks on a vacant lot in a crowded part of Atlantic City, and as a result plaintiff's property was destroyed by fire. The Court of Errors and Appeals held the League responsible on the theory that the project was a nuisance. No reference was made to any proof of the contractor's negligence. Four months later, in Reisman v. Public Service Corporation, 82 N.J.L. 464 (E. & A. 1911), the same court, without reference to Doughty, decided that the employment of an independent contractor for an exhibition of fireworks insulated the contractee from liability for the contractor's negligence. There was no discussion of the theory of nuisance.
Without undertaking an exhaustive review of the cases in our State where the expression appears, it seems proper to say that the legal content of "nuisance per se" and the application thereof in a factual framework such as that now before us, is anything but clear. And we agree with *435 the Appellate Division that in these times it is of doubtful utility. In Sarno v. Gulf Refining Co., 99 N.J.L. 340, 342 (Sup. Ct. 1924), affirmed 102 N.J.L. 223 (E. & A. 1925), the court equated it with "inherently dangerous" and this appears to have set in motion a trend toward the view now espoused by the Restatement, Torts, §§ 835(e), 416. See Gibilterra v. Rosemawr Homes, 19 N.J. 166 (1955); Bergquist v. Penterman, supra, 46 N.J. Super. at page 84; Harper and James, supra, at page 1408; Prosser, supra, at page 360.
Section 416 of the Restatement propounds a rule which would impose liability upon the landowner who engages an independent contractor to do work which he should recognize as necessarily requiring the creation during its progress of a condition involving a peculiar risk of harm to others unless special precautions are taken, if the contractor is negligent in failing to take those precautions. Such work may be said to be inherently dangerous, i.e., an activity which can be carried on safely only by the exercise of special skill and care, and which involves grave risk of danger to persons or property if negligently done. Restatement, supra, § 835, comment on clause (e), page 285. The term signifies that danger inheres in the activity itself at all times, so as to require special precautions to be taken with regard to it to avoid injury. It means more than simply danger arising from the casual or collateral negligence of persons engaged in it under particular circumstances. Vogrin v. Forum Cafeterias of America, 308 S.W.2d 617 (Mo. Sup. Ct. 1957); Neal v. Home Builders, 232 Ind. 160, 111 N.E.2d 280, 713 (Sup. Ct. 1953). The elaborate monographs on the subject appearing in 23 A.L.R. 984 and 1084 (1923), after referring in great detail to the many instances of judicial use of "inherently dangerous," distill therefrom as a basic connotation that the term imports a danger which is incidental to and characteristic of the work itself, and not one which arises solely from the means and methods of its performance. 23 A.L.R. at page 1095.
*436 It is important to distinguish an operation which may be classed as inherently dangerous from one that is ultra-hazardous. The latter is described as one which "(a) necessarily involves a serious risk of harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage." Restatement, supra, § 520. The distinction is important because liability is absolute where the work is ultra-hazardous, as in McAndrews v. Collerd, supra; Restatement, supra, § 835, comment on clause (f), p. 286; Harper and James, supra, at p. 1408; but it is contingent on proof of negligence in cases of inherently dangerous activity. 23 A.L.R., at page 1094; Restatement, supra, § 416, comment, page 1128; cf. Gibilterra v. Rosemawr Homes, supra. The difficulty with the use of "nuisance per se" in our cases comes in large measure from the failure to distinguish between the two types of hazard. In our judgment in the future in a factual context, such as is present here, decision will be facilitated if liability is tested in terms of these distinctions.
There is no doubt that the line between work which is ordinary, usual and commonplace, and that which is inherently dangerous because its very nature involves a peculiar and high risk of harm to members of the public or adjoining proprietors of land unless special precautions are taken, is somewhat shadowy. At least one basis for classification must stem from a common realization by reasonable men that a higher incidence of accidents is ordinarily associated with the latter type of work. The perimeter of an all-inclusive category cannot be drawn except in the general terms of the rule, and its application must be left in large measure to the gradual accumulation of precedents. See 23 A.L.R., at pages 1026, 1027. For the present, we need deal only with the case before us.
There is some conflict in the decisions as to whether demolition activity is one which necessarily involves a peculiar risk of harm to members of the public or to adjoining *437 property. The current New York rule is that the razing of buildings in a busy, built-up section of a city is inherently dangerous within the contemplation of section 416 of the Restatement. Hanley v. Central Sav. Bank, 255 App. Div. 542, 8 N.Y.S.2d 371 (App. Div. 1938), affirmed 280 N.Y. 734, 21 N.E.2d 513 (Ct. App. 1939); Janice v. State, 107 N.Y.S.2d 674 (Ct. Claims 1951); compare Cardozo, J., in Hyman v. Barrett, 224 N.Y. 436, 121 N.E. 271 (Ct. App. 1918). In analogous situations a number of jurisdictions have reached the same conclusion.
In Whalen v. Shivek, 326 Mass. 142, 93 N.E.2d 393, 399, 33 A.L.R.2d 74 (Sup. Jud. Ct. 1950), an owner engaged an independent contractor to make extensive alterations on his building adjoining a public sidewalk, including the removal of a large parapet of cast stone blocks. Through the contractor's negligence, some blocks fell from the parapet, killing a pedestrian. The owner was held liable because the "removal of the parapet by the contractor * * * involved work of such kind that it would probably cause injury to persons using the sidewalk below unless special precautions were taken." To like effect are Marks v. F.W. Woolworth Co., 32 F.2d 145 (5 Cir. 1929); Brent v. Baldwin, 160 Ala. 635, 49 So. 343 (Sup. Ct. 1909); Langrell v. Harrington, 3 Terry 547, 42 Del. 547, 41 A.2d 461 (Super. Ct. 1945); Vinton Petroleum Co. v. L. Seiss Oil Syndicate, 19 La. App. 179, 139 So. 543 (Ct. App. 1932); Stubblefield v. Federal Reserve Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718 (Sup. Ct. 1947); Covington & Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St. 215, 55 N.E. 618 (Sup. Ct. 1899); Prosser, supra, at page 360.
In this connection, the comment of the court in Van Auken v. Barr, 270 Ill. App. 150 (App. Ct. 1933), is noteworthy:
"We know of no way to tear down a brick wall that would not be dangerous to people walking along [the public street] unless there was precaution taken to protect the public from the pieces of bricks falling during the operation. The only way to take down the walls *438 of a brick building is in some way to loosen the bricks, and whatever way it is done there is danger that the brick may fall from the wall. If it is in a place where people are passing by, the falling bricks are extremely likely to hurt some one." (Insertion ours)
In our judgment, the doctrine adopted by New York and the other jurisdictions cited represents the sound and just concept to be applied. And within the broad outlines thereof, where the minds of reasonable men might differ as to whether the activity contracted for by the landowner is inherently dangerous or involves a peculiar risk of harm to others unless special precautions are taken, the issue is for jury determination. Whalen v. Shivek, supra, 93 N.E.2d at page 400. On the facts of this case, as outlined above, we have no hesitancy in saying that such course should have been pursued.
If the Authority had undertaken to raze the buildings by its own employees, obviously it would have been required to exercise care commensurate with the risk of damage to Majestic's property. The effect of the principle approved as controlling with respect to the liability of the landowner is to declare that the duty owed by the Authority to Majestic and Bohen's is non-delegable. That is, the duty is absolute, not the liability, and it cannot be put aside and immunity gained through the agency of an independent contract. Restatement, supra, § 415, Topic 2, Introductory Note; Harper and James, supra, at page 1408. As was said in Stubblefield v. Federal Reserve Bank of St. Louis, supra [356 Mo. 1018, 204 S.W.2d 722]:
"The mere recital of the nature of the work and the surroundings demonstrate its inherent danger and there was a primary, non-delegable duty upon the owner * * * to take measures commensurate with the danger."
In Covington & Cincinnati Bridge Co. v. Steinbrock, supra [61 Ohio St. 215, 55 N.E. 621], an owner employed a contractor to tear down the walls of his fire-ruined brick warehouse. While the contractor was attempting to pull *439 down one wall by means of a rope, it fell outward and onto plaintiff's property, situated on the other side of an alley separating the buildings. The owner was adjudged responsible because the demolition "necessarily involved danger to others, unless great care was used," and "the duty to observe such care * * * cannot be delegated to another, so as to avoid liability for its neglect." Although the courts of this State have not previously had occasion to assert as non-delegable the duty on the part of a landowner in circumstances such as are present here, that type of duty is not unknown to our law. Examples may be found in Newman v. Pasternack, 103 N.J.L. 434, 438 (E. & A. 1927); Wilczynski v. Penna. R.R. Co., 90 N.J.L. 178, 182 (E. & A. 1917); and Sebeck v. Plattdeutsche Volkfest Verein, 64 N.J.L. 624 (E. & A. 1900). The social value of the duty to the community is so significant that the law cannot allow it to be transferred to another. In a comparison of the interests involved in the instances cited, we hold the view that those now before us warrant at least as great if not greater protection and that thus the duty the Authority owed to Majestic and Bohen's likewise must be deemed to be non-delegable.
It is urged that such a burden ought not to be imposed upon a landowner who is not competent to do the work himself and so must turn to a person following the necessary independent calling in the particular field to accomplish the result sought. But in the resolution of the conflicting interests of the innocent injured person and the landowner who chose the contractor, justice and equity demand recognition of the absolute duty.
The same argument was made in the similar case of Covington & Cincinnati Bridge Co. v. Steinbrock, supra, and met with this expressive answer:
"It is urged as unreasonable that one who has work to perform, that he himself cannot perform from want of knowledge or skill, should be held liable for the negligence of one whom he employed to do it, since, if he did reserve control, it would avail nothing, from *440 his own want of knowledge and skill. There is a seeming force in this, but only so. It is not agreeable to the principles of distributive justice; for it is equally a hardship that one should suffer loss by the negligent performance of work which another procured to be done for his own benefit, and which he in no way promoted and over which he had no control. Hence, where work is to be done that may endanger others, there is no real hardship in holding the party for whom it is done responsible for neglect in doing it. Though he may not be able to do it himself, or intelligently supervise it, he will nevertheless be the more careful in selecting an agent to act for him. This is a duty which arises in all cases where an agent is employed, and no harm can come from stimulating its exercise in the employment of an independent contractor, where the rights of others are concerned."
For the reasons stated herein, the judgment of the Appellate Division is affirmed and the matter is remanded for a new trial against the Parking Authority.
For affirmance Chief Justice WEINTRAUB, and Justices BURLING, JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO 7.
For reversal None.
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146 Conn. 650 (1959)
GUS J. VARTELAS, EXECUTOR (ESTATE OF JOHN K. VARTELAS)
v.
WATER RESOURCES COMMISSION
Supreme Court of Connecticut.
Argued June 5, 1959.
Decided July 28, 1959.
DALY, C. J., BALDWIN, KING, MURPHY and MELLITZ, JS.
*652 Raymond J. Cannon, assistant attorney general, with whom, on the brief, was Albert L. Coles, attorney general, for the appellant (defendant).
Carl A. Lundgren, for the appellee (plaintiff).
BALDWIN, J.
The defendant, the water resources commission, acting under what is now § 25-3 (c) of the Revision of 1958, established, along the west bank of the Naugatuck River in Ansonia, a line beyond which, in the direction of the river, no structure or encroachment could be placed unless the commission specifically authorized it. The plaintiff was the executor of an estate which included a parcel of land affected by the commission's action. The land is on the north side of Maple Street in Ansonia; it adjoined in part the north side of the westerly end of the bridge which, prior to the flood of August 19, 1955, crossed the river at this point. For more than sixty years, there had been buildings, containing five stores and six dwelling apartments, on this land. On August 19, 1955, the river overflowed its banks and destroyed the buildings and the bridge. A new bridge is in process of construction. When the construction is finished, the land in question will front on the north side of the bridge at its westerly terminus. The line established by the commission leaves only sixty square feet of the property for the erection of any structure apart from one approved by the commission. § 25-3 (c). Proceeding under that statute, the plaintiff appealed to the Court of Common Pleas, claiming that the action of the commission in establishing the line constituted *653 an unconstitutional taking of the property for a public use without compensation, in violation of article first, § 11, of the Connecticut constitution. The trial court sustained the appeal, and the commission has appealed from the judgment.
The commission claims that the plaintiff has no standing in this appeal to question the constitutionality of its action. It is true that as a general rule one cannot on appeal question the constitutionality of the statute under which he appeals. Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300; National Transportation, Co. v. Toquet, 123 Conn. 468, 478, 196 A. 344; Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 42 n., 61 A.2d 89. We do not view the plaintiff's appeal as a broad attack on the constitutionality of § 25-3 (c) but as a challenge to the validity of the action taken by the commission under that statute. The basic question presented by the appeal is whether the commission has so used the powers conferred upon it by the statute as to deprive the plaintiff of all use of the property under his control and, in effect, to appropriate it to a public use without compensation. Where, on appeal under the provisions of a statute, the validity of the statute as a whole is not attacked but the issue is whether it applies, or properly can apply, in a particular manner to the particular appellant, that issue may be determined. Spector Motor Service, Inc. v. Walsh, supra. We hold that the mere fact that the plaintiff is appealing under the provisions of the statute governing the establishment of encroachment lines does not deprive him of standing to raise the question of the constitutionality of the establishment of the line on his property.
Section 25-3 (c) was enacted at a special session of the General Assembly in November, 1955, following *654 the disastrous floods of August of that year. Nov. 1955 Sup., § N191. Its obvious purpose was to enable the water resources commission to forestall, by stream clearance, channel improvement and other flood control measures, a repetition of the havoc wrought in those floods. The legislation was an exercise of the police power of the state in the interest of the public welfare. 11 Am. Jur. 1022; 56 Am. Jur. 580, § 97; note, 70 A.L.R. 1274, 1275. The police power has limitations in the extent to which it can properly destroy or diminish the value of property. Where those limitations would be exceeded, the power of eminent domain must be used. Rockville Water & Aqueduct Co. v. Koelsch, 90 Conn. 171, 176, 96 A. 947; State v. Hillman, 110 Conn. 92, 106, 147 A. 294; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S. Ct. 158, 67 L. Ed. 322.
The police power regulates use of property because uncontrolled use would be harmful to the public interest. Eminent domain, on the other hand, takes private property because it is useful to the public. Windsor v. Whitney, 95 Conn. 357, 367, 111 A. 354; Freund, Police Power § 511. These propositions are now so generally accepted that they do not require extended citation of authority. Whether the exercise of the one or the other of these great powers of government is required depends upon the circumstances of the particular case. See Phillips' Appeal, 113 Conn. 40, 43, 154 A. 238. That the General Assembly recognized the distinction between them is manifest in § 25-3 (c). It not only authorizes the establishment of encroachment lines as a regulatory measure but provides that "[w]henever the commission finds that existing encroachments within lines established or to be established constitute a hazard to life and property in *655 the event of flood, it is empowered to take land as provided by chapter 835." Chapter 835 of the 1958 Revision sets forth the procedure for taking land for public use by eminent domain. The provision quoted works no illegal discrimination against the plaintiff as he claims. In authorizing the exercise of the police power with respect to situations where there are no existing structures or encroachments within the lines established or to be established, as in the instant case, and the exercise of the power of eminent domain where there are structures or encroachments in existence within the lines established or to be established, the statute creates a classification within the power of the legislature to make. Between the two situations there is a natural and substantial difference germane to the subject and purposes of the legislation. State v. Gordon, 143 Conn. 698, 706, 125 A.2d 477; Franklin Furniture Co. v. Bridgeport, 142 Conn. 510, 514, 115 A.2d 435; Murphy, Inc. v. Westport, 131 Conn. 292, 304, 40 A.2d 177; Second National Bank v. Loftus, 121 Conn. 454, 460, 185 A. 423; see Chouinard v. Zoning Commission, 139 Conn. 728, 732, 97 A.2d 562.
There is nothing in the record to support the claim of the plaintiff that he has been unconstitutionally deprived of the use of the property in his control. Section 25-3 (c) contains this language: "Said commission shall establish, by order after a public hearing and in accordance with sound engineering principles,... lines beyond which, in the direction of the waterway, no obstruction or encroachment shall be placed ... unless specifically authorized by the commission." It is apparent from this language that the plaintiff could seek special permission to build a structure extending beyond the encroachment line. Until this remedy has been exhausted, it *656 cannot be said that the plaintiff has been finally denied the reasonable and proper use of the property affected by the encroachment line. Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328. An exhibit shows that after the present appeal was taken the plaintiff filed an application for permission to build a retail market within the encroachment line. The building proposed was fifty feet square and constructed of cinder blocks on a poured concrete cellar and foundation. The commission denied the application on the ground that the construction would "seriously impair the capacities of the channel and result in increased upstream water stages in time of flood." The matter of the application is nowhere suggested by the pleadings. The amended complaint, filed after the denial of the application, merely repeats the language of the original complaint and makes no mention of the application. Nor is the fact that the plaintiff applied for and was denied permission to build recited in the finding. Although the finding purported to make all exhibits "a part of the record on appeal" and to permit their use in this court without being printed, this did not establish as facts before this court on appeal the information which could be gleaned from the exhibits. Maltbie, Conn. App. Proc. § 319. On the record before us, therefore, we cannot say that the plaintiff has exhausted the remedy available to him under § 25-3 (c). We need not, however, rest our decision on the inadequacy of the record. The commission has, at most, refused its permission for the erection of a particular structure. Whether the plaintiff could build another type of structurefor example, one on piers or cantilevers which would not impair the capacity of the channel in time of flood is a matter which the commission *657 was not asked to, and did not, pass upon.
Reasonable regulation of the size and area of buildings and of the type of material used in them and the method of construction has long been recognized as legally proper. Len-Lew Realty Co. v. Falsey, 141 Conn. 524, 529, 107 A.2d 403; State ex rel. Rowell v. Boyle, 115 Conn. 406, 411, 162 A. 26; Young v. West Hartford, 111 Conn. 27, 31, 149 A. 205; Ingham v. Brooks, 95 Conn. 317, 329, 111 A. 209. In fact, zoning, which has now become widespread, rests upon the reasonable exercise of this police power in the public interest. Levine v. Board of Adjustment, 125 Conn. 478, 482, 7 A.2d 222. All property is held subject to the police power. State v. Hillman, 110 Conn. 92, 105, 147 A. 294. The loss of human life and the destruction of property wrought by the floods in August, 1955, justified the legislature in conferring upon the commission broad powers to adopt preventive measures against their repetition. The trial court found that the encroachment lines as established by the commission extend for several miles along the Naugatuck river, accord with sound engineering principles and statutory requirements, and were designed to reduce hazard to life and property in the event of recurring floods. The commission did not abuse its powers in proceeding by way of regulation rather than by way of eminent domain. As to its refusal to allow the plaintiff to construct a cinder-block building on a concrete foundation within the encroachment line, this action was, under the circumstances of this case, justifiable. Lane v. Harbor Commissioners, 70 Conn. 685, 695, 40 A. 1058; State v. Heller, 123 Conn. 492, 497, 196 A. 337. It did not necessarily mean that no structure which would serve the plaintiff's purposes and permit the economic utilization of the property in his *658 control would be allowed. Until it appears that the plaintiff has been finally deprived by the commission of the reasonable and proper use of the property, it cannot be said that there has been an unconstitutional taking of property without just compensation.
There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.
In this opinion the other judges concurred except DALY, C. J., who died after the cause was argued and before the opinion was adopted by the court.
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475 S.W.2d 473 (1971)
Daniel RUPARD and Dleter Slerp, Appellants,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
October 29, 1971.
Rehearing Denied February 18, 1972.
*474 Frank G. Gilliam, Bing I. Bush, Gilliam & Bush, Anthea Mary Boarman, Lexington, for appellants.
John B. Breckinridge, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
DAVIS, Commissioner.
Daniel Rupard and Dieter Sierp were found guilty of possessing marijuana for the purpose of sale or disposal to another. The jury fixed the penalty of each of them at confinement in the penitentiary for four years and a fine of $3500. They seek reversal of the judgment of conviction, asserting that (1) evidence was improperly admitted against them; (2) the evidence for the Commonwealth was insufficient since an inference was based upon an inference; (3) a directed verdict of acquittal should have been given since the evidence was entirely circumstantial and insufficient; and (4) prejudicial statements were made by the Commonwealth's attorney in his closing argument to the jury.
Information was received by the law enforcement officials in Clark County relating to possible violation of the Narcotic Drug Act (KRS Chapter 218) at an abandoned house located in a remote section of Clark County on a farm owned by Siegal Todd. On the morning of July 27, 1970, a detective of the Kentucky State Police and the Clark County Sheriff entered the house and found marijuana spread out on the floor on sheets in two of the rooms. This marijuana was in the process of being dried. In another room the officers saw four bags of marijuana which had been stripped from its stems and placed in plastic bags. Nearby on a stairway the officers observed a set of postage scales suitable for weighing light articles such as packages of marijuana.
After the officers had left during the middle of the day, they returned to the scene at about 5 p. m. to conduct a surveillance. About 8:30 p. m. they observed the defendants driving toward the house along the somewhat isolated gravel roadway. When the defendants saw the officers' car, they sought cover behind some bushes. One of the officers watched the two defendants approach the house and go upon the side porch as if to enter the house. The officer was unable to see whether either of the men actually entered the house, inasmuch as his line of vision was obstructed by reason of the physical contour of the area. The appellants make much of the fact that one of the officers indicated that he did not see the defendants go upon the porch of the house, but they overlook the fact that this officer explained that he was crouched upon the floor of the automobile in order to leave the impression that he and his fellow officer were "parkers" rather than officers.
The officers went to the parked car of the defendants and awaited their arrival, which occurred approximately twenty minutes after the defendants were seen to go upon the porch of the house.
*475 As soon as the defendants entered their car, the officers approached them and arrested them. In plain view on the ledge above the dashboard was a plastic bag containing marijuana. (It was not one of the bags which the officers had seen earlier at the house.) The officers testified that they gave each of the defendants the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974. The detective testified: "I asked the boys what was in the package and they said `grass.' I said, `marijuana' and they said, `yes.'" The officer related that he could hardly hear what Rupard was saying because Sierp was waving his arms and telling the sheriff to shoot him. Both the detective and the sheriff testified that Sierp gave the appearance of being "high" and irrational. Neither of the officers detected the odor of any alcohol. The officers then returned to the house with the two defendants in custody and discovered that there were then five bags of marijuana rather than the four which they had seen earlier. Additionally, they noted that the scales had been moved from the position in which they had been earlier. The officers said that they did not observe anyone at or near the premises during the day except the defendants.
The first assignment of error relates to the claim by the appellants that it was improper for the trial court to permit the introduction into evidence of the five bags of marijuana and the substantial quantity of unprocessed marijuana which was found in the house. The appellants base their argument in this respect on their contention that there was no proof that either of them had possession of the marijuana, as denounced by KRS 218.020. In support of that contention the appellants cite State v. Hood, 89 Mont. 432, 298 P. 354 (1931); Haley v. State, 7 Md.App. 18, 253 A.2d 424 (1969); and People v. Jackson, 23 Ill. 2d 360, 178 N.E.2d 320 (1961). In the three cases cited by the appellants, the court found that the facts presented were not sufficient to support a finding that the defendants had actual or constructive possession of the contraband drugs. However, those cases recognized the usual rule that the term "possession" need not always be actual physical possession and that a defendant may be shown to have had constructive possession by establishing that the contraband involved was subject to his dominion or control. A general annotation on the subject, "What Constitutes `Possession' of a Narcotic Drug Proscribed by Section 2 of the Uniform Narcotic Drug Act," appears at 91 A.L.R. 2d 810, et seq. There are many cases cited in 91 A.L.R. 2d 810, et seq., and the Later Case Service for that annotation, in which constructive possession of narcotics has been held to be sufficient and in which the evidence was deemed adequate to support a finding of constructive possession. Some of those cases are Moody v. United States, C.A.9, 376 F.2d 525; People v. Holt, 28 Ill. 2d 30, 190 N.E.2d 797; Stewart v. State, 1 Md. App. 309, 229 A.2d 727; Speaks v. State, 3 Md.App. 371, 239 A.2d 600.
The circumstances presented in this case support a rational inference that these appellants had constructive possession and probably actual possession of the marijuana which was found in the abandoned farmhouse. The owner of the house testified that he had not authorized either of the appellants to use the house. One of the officers saw the appellants go upon the porch of the house as if to enter; both of the officers saw the appellants coming from the direction of the house to their car and noted that one of them appeared to be deeply affected as if under the influence of a narcotic drug. Marijuana was found in their automobile in plain view. When the officers returned to the house, they discovered that another batch of marijuana had been bagged and the scales had been moved from the position where the officers had seen them earlier. These circumstances suffice to support the rational inference that these appellants indeed had *476 dominion and control of the marijuana in the abandoned house; hence, it was appropriate for the trial court to admit the contraband material in evidence.
The discussion just completed sufficiently answers the second and third points of error asserted by the appellants. It is not necessary to pile an inference upon another inference in order to sustain the conviction in this case. The appellants' reliance upon Pengleton v. Commonwealth, 294 Ky. 484, 172 S.W.2d 52, is misplaced. In Pengleton, Kate Pengleton's conviction of stealing chickens was reversed. The evidence showed that four hens owned by Herman Peters disappeared on a Sunday afternoon. The next day the hens were bought by a merchant who said that Ralph Smith came to the store, accompanied by Kate Pengleton and her thirteen-year-old daughter, Marie. Smith was carrying two of the hens and Marie had the other two. Smith, who had been living with Kate for a year or more although she was married to someone else, testified that he stole the chickens and that Kate had no part in it. The only evidence to link Kate with the theft was the fact that she walked into the store with Smith and her small daughter who had the hens in their hands. The court noted that possession of stolen property is sufficient to cast on the accused the burden of explaining that fact and that the jury may believe or disbelieve such explanation. However, the court noted that since Kate never had actual possession and there was no circumstance from which it could be deduced that she exercised any control or dominion over the stolen property or that she received any part of the proceeds of its sale, it was impermissible for the jury to indulge an inference from Kate's actions that she was in the possession of the stolen property and then indulge the additional inference from the inferred possession that she was guilty of the theft. That situation does not obtain in this case, as a review of the facts already discussed indicates.
For the same reasons the argument that there was insufficient circumstantial evidence to sustain the verdict is without merit. For recent discussions of the general rule pertaining to the sufficiency of circumstantial evidence to sustain a conviction, see Hodges v. Commonwealth, Ky., 473 S.W.2d 811, decided September 24, 1971; Cissell v. Commonwealth, Ky., 419 S.W.2d 555; and Mullins v. Commonwealth, 276 Ky. 555, 124 S.W.2d 788. It is evident that the totality of the circumstances presented in this record affords fair and reasonable ground upon which the verdict of the jury might be rested. In these circumstances the evidence is sufficient.
The appellants complain of remarks made by the Commonwealth's attorney during his closing argument. The first excerpt from the argument at which complaint is directed is as follows:
"I care about the kids out there in Clark County who are not on drugs. I care about people who have marijuana to dispose for that purpose. (Objection overruled.) I want to save the children in our community. I am asking you to help us."
Another excerpt from the argument is:
"People in this county and community look to see what occurs and if we can't enforce our laws and make the people sit down and sit down hard on drug pushers and abusers, it won't be too long until our kids, fourteen and fifteen year olds, start on it and they will move up the ladder. Please help us stop this. Thank you."
(No objection to this comment was noted of record.) Another portion of the argument to which objection was made and sustained is:
"When they return Mr. Rupard is high on pot. I mean Sierp, wild, waving his *477 arms about saying kill me. He knew about his pot and marijuana. He has been on it. You can tell that with reference to this testimony this boy has developed quite a good habit and doesn't care too much about infecting other people with it."
Another portion of the argument of which appellants complain is:
"In this case if you didn't have enough facts to decide this case and that the defendants are guilty, this case wouldn't be given to you. The Judge would take it away from you."
No objection was made to that argument.
The court is of the view that all of the argument with the possible exception of the last-quoted portion was proper argument and did not exceed the bounds of propriety in such cases. The reference to the fact that the judge would have directed a verdict if the evidence was insufficient was primarily in response to the argument in behalf of the defendants challenging the sufficiency of the evidence. As noted, no objection was made to the comment. The statement was literally true, but opens an area which should not have been injected into the case by the Commonwealth as an original proposition. A somewhat similar comment was contained in Martin v. Commonwealth, 255 Ky. 529, 75 S.W.2d 13, but that portion of the argument in Martin was merely one of many flagrant departures from propriety in the argument of the Commonwealth's attorney. In the circumstances of this case, the court perceives no prejudicial error in the argument or any of the excerpts which have been noted.
The judgment is affirmed.
All concur.
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30 N.J. 395 (1959)
153 A.2d 49
MARIE KING, PLAINTIFF-RESPONDENT,
v.
JOSEPH M. GREENE, MABEL GREENE, MARGARETTA P.W. HARRISON, JOHN CUSICK AND ELAINE CUSICK, DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued March 17, 1959.
Reargued June 1, 1959.
Decided June 30, 1959.
*397 Mr. John Warren, Jr. argued the cause for the defendants-appellants (Messrs. Parsons, Labrecque, Canzona & Combs, attorneys for defendants-appellants Greene and Cusick; Mr. Burton T. Doremus, attorney for defendant-appellant Harrison).
Mr. Patrick J. McGann, Jr. argued the cause for the plaintiff-respondent (Messrs. Applegate, Reussille, Cornwell & Hartman, attorneys).
Brief filed on behalf of New Jersey Title Insurance Association, amicus curiae, by Messrs. Maurice A. Silver and Donald B. Jones (Mr. Donald B. Jones also argued orally for the amicus curiae).
The opinion of the court was delivered by BURLING, J.
This is an action seeking possession of lands, damages for mesne profits and a declaration that a mortgage encumbrance held by defendant Margaretta P.W. Harrison is a nullity and directing its discharge of record. The Superior Court, Law Division, hearing the matter on stipulated facts, granted plaintiff's motion for summary judgment. Defendants appealed, and while pending and prior to argument in the Appellate Division, we certified the cause on our motion. After argument in this court, we *398 directed that the cause be reargued and requested that the New Jersey Title Insurance Association appear as amicus curiae.
The following facts are stipulated: In 1913 plaintiff, Marie King, acquired the title to three lots on Patterson Avenue in the Borough of Shrewsbury, New Jersey. In 1931 her husband, Philip King, brought an action against her in the Court of Chancery which resulted in a decree being entered that plaintiff owed him $1225. It was further ordered that plaintiff execute a conveyance of the three lots to herself and her husband as tenants by the entirety. While the conveyance was never made, the decree was recorded, the self-operative effect of which was to make Marie and Philip King become seized of the premises as tenants by the entirety. R.S. 2:29-61 (now N.J.S. 2A:16-7).
In 1932 execution was issued to satisfy the 1931 money judgment and a sheriff's deed was made to John V. Crowell of all plaintiff's right, title and interest in the property. In 1933 Philip King conveyed his right, title and interest in the three lots to Martin Van Buren Smock. John V. Crowell and his wife joined in the deed to Smock, conveying their interest acquired by virtue of the sheriff's deed. Philip King died in 1938. In 1946 Smock conveyed his interest to defendants Joseph and Mabel Greene.
In 1957 plaintiff, as surviving spouse of Philip King, instituted the present action for possession, contending that she is the sole owner of the property and that the 1932 sheriff's deed conveyed only one-half the rents, issues and profits of the property during the joint lives of the spouses and did not convey her right of survivorship. She alleges that when her husband died in 1938 the life estate for the joint lives of the spouses terminated and she became entitled to the fee. Defendants' contention is that the sheriff's deed conveyed plaintiff's right of survivorship as well as a life interest.
The trial court concluded that the sheriff's deed did not include the right of survivorship and entered a summary *399 judgment for plaintiff which declared that she is the present holder of a fee simple in the premises; that a mortgage upon the premises held by defendant Margaretta Harrison and given by the defendants Joseph and Mabel Greene is discharged; that defendants John and Elaine Cusick, the Greenes' tenants, must vacate the premises and that plaintiff is entitled to mesne profits for six years prior to the commencement of this action.
The question at issue is whether the purchaser at an execution sale under a judgment entered against the wife in a tenancy by the entirety acquires the wife's right of survivorship.
It is conceded by all parties to this appeal, as indeed they must, that the two most recent holdings on the question at issue, Zanzonico v. Zanzonico, 24 N.J. Misc. 153, 166 A.L.R. 964 (Sup. Ct. 1946); Dworan v. Miloszewski, 17 N.J. Super. 269 (Cty. Ct. 1952), are to the effect that a purchaser at execution sale of the wife's interest in an estate by the entirety does not acquire the wife's right of survivorship, so that upon the death of the husband the purchaser's rights are extinguished. Since neither of the two cases was determined in a court of last resort and since the law on the question has been in considerable confusion we shall undertake a re-examination of the question.
Involved are two fundamental problems: (A) the nature of an estate by the entirety at common law, and (B) the effect upon the estate by the entirety of the Married Women's Act (L. 1852, p. 407, now R.S. 37:2-12 et seq.).
A ESTATES BY THE ENTIRETY AT COMMON LAW.
At the outset we note that the industry of counsel and our own independent research have failed to reveal any English case decided prior to 1776, touching upon the question of whether a voluntary or involuntary conveyance of a husband's interest in a tenancy by the entirety carries with it his right of survivorship.
*400 The unique form of concurrent ownership at common law, labeled estates by the entirety, may be traced into antiquity at least as far back as the 14th and 15th Centuries. 3 Holdsworth, History of the English Law (3d ed. 1923), 128; Kepner, "The Effect of an Attempted Creation of an Estate by the Entirety in Unmarried Grantees," 6 Rutgers L. Rev. 550 (1952). The estate was unique because of the common-law concept of unity of husband and wife and the positing of that unity in the person of the husband during coverture. Putnam, "The Theory of Estates by the Entirety," 4 Southern L. Rev. 91 (1879). A husband and wife cannot hold by moieties or in severalty, said Littleton, "and the cause is, for that the husband and wife are but one person in law. * * *" Coke on Littleton, sec. 291. Blackstone, in his judicial capacity, noted:
"This estate [entirety] differs from joint-tenancy, because joint-tenants take by moieties, and are each seised of an undivided moiety of the whole, per my et per tout, which draws after it the incident of survivorship or jus accrescendi, unless either party chooses in his life-time to sever the jointure. But husband and wife, being considered in law as one person, they cannot, during the coverture take separate estates; and therefore upon a purchase made by them both, they cannot be seised by moieties, but both and each has the entirety. They are seised of their respective moieties, but both and each has the entirety. They are seised per tout, and not per my." Green v. King, 2 Wm. Blackstone 1211, 1214, 96 Eng. Rep. 713, 714 (C.P. 1777).
To the same effect see the opinion of Chancellor Kent in Rogers v. Benson, 5 Johns. Ch. 431 (N.Y. 1821).
The unity of the spouses theory was early recognized in New Jersey as the foundation upon which estates by the entirety rested. Den ex dem. Hardenbergh v. Hardenbergh, 10 N.J.L. 42 (Sup. Ct. 1828).
By virtue of the jus mariti and jure uxoris the husband was the dominant figure in the marital unity. Thus, in an estate by the entirety the husband had absolute dominion and control over the property during the joint lives. The husband was entitled to the rents, issues and *401 profits during the joint lives of himself and his wife, with the right to use and alienate the property as he desired, and the property was subject to execution for his debts. Washburn v. Burns, 34 N.J.L. 18 (Sup. Ct. 1869) (it should be noted that although Washburn was decided after the Married Women's Act, the court overlooked the effect of the act and decided the case on common-law principles); Freeman, Co-Tenancy and Partition (2d ed. 1888), 140; 2 American Law of Property, § 6.6 p. 28 (1952); Phipps, "Tenancy by Entireties," 25 Temple L.Q. 24, 25 (1951). As stated by the court in Washburn v. Burns, supra:
"* * * the husband has an interest which does not flow from the unity of the estate, and in which the wife has no concern. He is entitled to the use and possession of the property during the joint lives of himself and wife. During this period the wife has no interest in or control over the property. It is no invasion of her rights, therefore, for him to dispose of it at his pleasure. The limit of this right of the husband is, that he cannot do any act to the prejudice of the ulterior rights of the wife." (34 N.J.L., at page 20)
The remaining question is, could the husband unilaterally alienate his right of survivorship at common law? Our study of the authorities convinces us that he could. The entire thrust of the authorities on the common law, with one notable exception, is to the effect that the only distinction between a joint tenancy and a tenancy by the entirety at common law was that survivorship could not be affected by unilateral action in the latter estate.
It was settled in England as early as the 14th Century that the husband could not defeat the wife's right of survivorship. In that case, reported in 2 Coke on Littleton, sec. 291, William Ocle was found guilty of treason (he murdered Edward II) and his estate was forfeited. Edward III granted the forfeited lands (owned jointly with the wife) to someone else. It was held that the husband's act of treason could not deprive the wife of her right of survivorship. Back v. Andrew, 2 Vern. 120 (1690), stands for the *402 same proposition. But to say that the husband cannot by his voluntary or involuntary act defeat the wife's right of survivorship is not to say that his own right of survivorship, subject to wife's right of survivorship, should he predecease her, cannot be alienated. The notion that the husband could not alienate his interests stems from Blackstone's comment, writing in 1765 to the following effect:
"And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common, for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain in the survivor." 2 Blackstone's Commentaries (Tucker, ed. (1802), 181) (Emphasis supplied)
Kent, in his Commentaries first published in 1825, merely said: "Neither of them can alien so as to bind the other." 4 Kent's Commentaries 362.
Preston, a much quoted authority in early America, writing in England in 1820 declared categorically:
"An alienation by the husband alone, in the lifetime of the wife, will, in the event of his surviving his wife, be good for the share of himself and his wife." (1 Preston on Estates 134 (1820))
Blackstone's enigmatic statement that "neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain in the survivor" was early limited in New Jersey. In Den ex dem. Wyckoff v. Gardner, 20 N.J.L. 556 (Sup. Ct. 1846), decided prior to the Married Women's Act, and hence under common-law principles, the issue was whether the husband could mortgage the premises in an estate by the entirety without the consent of his wife. In that case, Carpenter, J., held:
"It is said, in the cases cited, and in the usual authorities which treat of this peculiar estate that neither husband nor wife, separately and without the assent of the other, can dispose of or convey away *403 any part. That the husband cannot alien, and much less devise that estate, the whole of which belong to his wife as well as to himself. The conveyance of the husband is doubtless void as against the wife, she surviving her husband, and as against those claiming under her; but can it be said to be void as against the husband himself? Has the husband no power at all over the land during coverture, not even to make a lease? If it be so, notwithstanding marital rights, the wife would seem to have an absolute veto, and her consent would be necessary, not only to convey the estate, but even to dispose of the possession, during the husband's life and during coverture. As urged in the argument, in such case, the wife would have a more controlling influence over an estate like this, than when the fee is in herself, which cannot be. The general language of the authorities is to be restrained to the case itself under consideration, and the obvious meaning of the passages relied on, is more guardedly expressed by Sir William Grant, in a case recited. `The husband, as against her, cannot pass any right, title or interest; but if she survive, the whole must accrue to her.' Glaister v. Hewer, 8 Ves. Jr. 199. `The husband alone,' says Chancellor Kent, `may grant or charge the wife's land, during their joint lives, and if he be tenant by the curtesy during his own life; but he cannot alien or incumber it, if it be a freehold estate, so as to prevent the wife, or her heirs, after his death, from enjoying it discharged from his debts or engagements.' 2 Kent's Com. 133, 5th Ed. This doctrine is as equally applicable to the estate now under consideration, as to the case when the fee is in herself. The husband has the right of possession and control during coverture. Though he cannot convey the estate at all events, cannot convey so as to prejudice her rights in case she survive; yet he may demise, alien or mortgage his interest during his own life. Barber v. Harris, 15 Wend. [N.Y.] 615; Jackson [ex dem. Suffern] v. McConnell, 19 Wend. [N.Y.] 175.
But does it lie in the mouth of the defendant in possession of the premises, in an action of ejectment brought against him upon his own mortgage deed, to deny his right to mortgage? Whatever may be the effect of ordinary deeds of conveyance without warranty in concluding a grantor, who has released or conveyed without interest, yet in relation to mortgages the question is well settled. By an equitable estoppel, based upon the legal fraud which would be otherwise permitted, one who mortgages land as his own, upon suit thereupon brought against him, shall not be permitted to derogate from his own mortgage, by denying his title, or by setting up title in any third person." (20 N.J.L., at pages 559-561)
Nevius, J., held:
"* * * The counsel for the defendant seemed to think, from the general expression found in the books, `that where an estate is conveyed to husband and wife, neither can convey or dispose of the *404 same or any part of it without the concurrence of the other,' and that the husband is precluded from leasing the land or charging it by mortgage. The true meaning of such expression is, that neither can make such a disposition of the estate, without the concurrence of the other, as will affect the right and interest of the other. The mortgage by the husband does not affect the wife's right or interest in the lands; if she survive, the whole title and estate will vest in her freed from the mortgage. I am of the opinion that judgment should be entered for the plaintiff." (20 N.J.L. at page 563)
Thus, the view that neither spouse could alienate his interest in the estate without the consent of the other, was interpreted to mean that the husband could not alienate so as to prejudice the wife's rights in the estate, and it is clear that the wife's only right at common law was her right of survivorship. No prejudice would result to the wife's interests at common law by the husband's alienation of his right of survivorship. If he predeceased her, she would take a fee. If she predeceased him, her interests were cut off anyway. During his lifetime she had no interest in the estate.
That the husband could alienate his right of survivorship at common law is buttressed by the fact that at common law, in instances where property was held in the wife's name alone, the husband had the right to possession and had the absolute control over the rents, issues and profits during coverture. He could freely alienate that interest and it was subject to execution by his creditors. I American Law of Property, supra, § 5.51. It would be incongruous to suggest that the husband could convey at the common law no greater interest in property held jointly by his wife and himself than in property held solely by his wife.
Most courts and commentators have taken the position that at common law the husband's right of survivorship was alienable, so that the purchaser or grantee would take the entire fee in the event the wife predeceased the husband and the interest was subject to execution for his debts. See e.g., Howell v. Folsom, 38 Or. 184, 63 P. 116 (Sup. Ct. 1900); Licker v. Gluskin, 265 Mass. 403, 164 N.E. 613, *405 63 A.L.R. 231 (Sup. Jud. Ct. 1929); Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337, 30 L.R.A. 305 (Ct. App. 1895); Branch v. Polk, 61 Ark. 388, 33 S.W. 424, 30 L.R.A. 324 (Sup. Ct. 1895); Ames v. Norman, 4 Sneed 683, 36 Tenn. 683, 70 Am. Dec. 269 (Sup. Ct. 1857); In re Brown, 60 F.2d 269 (D.C. Ky. 1932); Preston on Estates, supra, p. 134; 1 Washburn, Real Property (5th ed. 1887), 707; 2 Jones, Real Property in Conveyancing, 632 (1896); 2 American Law of Property, supra, § 6.6, p. 28; 4 Thompson, Real Property (rev. ed. 1940), § 1816, p. 352; 2 Tiffany, Real Property, § 435, p. 232 (1939); 166 A.L.R. 969, 971-974 (1946); Phipps, "Tenancy by Entireties," supra, at page 26; Bordwell, "Real Property," 8 Rutgers L. Rev. 141 (1953); 26 Am. Jur., Husband and Wife, § 84; Ritchie, "Tenancy by the Entirety in Real Property," 28 Virginia L. Rev. 608, 609 (1941).
In New Jersey the seeds of doubt on the proposition at hand were first sown in Bilder v. Robinson, 73 N.J. Eq. 169 (Ch. 1907). In that case a judgment had been recovered against one Robinson who owned property by the entirety with his wife, Ottie. Levy was made upon the husband's interest and the plaintiff was the purchaser at the execution sale. The bill charged that plaintiff was entitled to receive one-half of the rents from the premises from the date of the sheriff's deed, but that the defendants, who were insolvent, totally excluded plaintiff from possession and refused to account to him for his share of the rents. The bill prayed that a receiver be appointed and an accounting had. Vice-Chancellor Stevenson, in discussing the husband's interest in an estate by the entirety, stated:
"* * * Whether the husband could convey an estate in fee which his grantee would hold subject to the wife's right of survivorship is a matter about which there seems to be some difference of opinion, and also great vagueness of statement among the authorities. Inasmuch as the husband, in theory of law held the entire estate in fee, and, unlike the wife, was under no general incapacity to make conveyances of land, it would seem to follow that the husband could, by his deed, convey the estate which he held, viz., an estate in fee *406 subject only to be defeated in case his wife should survive him. There are authorities which distinctly declare the power of the husband to make such a conveyance. 1 Washburn on R. (6th ed.) 913; Freeman Co-ten. & Par. (2d ed.) 75; Ames v. Norman 4 Sneed (36 Tenn.) 683 (1875); Berrigan v. Fleming, 2 Lea (70 Tenn.) 271 (1879)." (73 N.J. Eq. at page 172).
What, then, would create a disability in the husband to convey his right of survivorship? The answer is found in the following passage from the vice-chancellor's opinion:
"The sheriff's deed to the complainant in this case passed the same title which a deed of bargain and sale executed by the judgment debtor, Mr. Robinson, would have passed. 3 Gen. Stat. p. 2980 § 7; P.L. 1799 p. 486 § 12; 1 Nevill 280; Hackensack Savings Bank v. Morse, 46 N.J. Eq. (1 Dick.) 161; Brady v. Carteret Realty Co., 67 N.J. Eq. (1 Robb.) 641. It may be noted, however, that our statute authorizing the transfer of estates in expectancy is made inapplicable by an express proviso to sales of real estate under executions. P.L. 1851 p. 282; 1 Gen. Stat. p. 881 § 138." (73 N.J. Eq., at page 173)
Since the husband and wife were alive at the time the suit was brought, and since the relief prayed for only requested one-half the rents, issues and profits, the vice-chancellor found it unnecessary to decide the question of whether the right of survivorship of a spouse could be alienated, voluntarily or involuntarily.
The caveat in the Bilder case, i.e., that L. 1851, p. 282 (now R.S. 46:3-7) prohibits execution upon contingent estates is not well taken. Indeed, Vice-Chancellor Stevenson himself seems to have recognized this when he said, in the previously quoted passage, that the husband in an estate by the entirety held "an estate in fee subject only to be defeated in case his wife should survive him." That a tenant by the entirety has a vested estate, subject to defeasance upon his predeceasing the other spouse, is amply supported by the authorities. It was first enunciated in New Jersey in 1828 in the case of Den ex dem. Hardenbergh v. Hardenbergh, supra. Chief Justice Ewin there declared:
*407 "* * * Between husband and wife the jus accrescendi does not exist. The surviving joint tenant takes something by way of accretion or addition to his interest, gains something he previously had not, the undivided moiety which belonged to the deceased. The survivor of husband and wife, has no increase of estate or interest by the decease, having before the entirety, being previously seized of the whole. The survivor, it is true, enjoys the whole, but not because any new or farther estate or interest becomes vested, but because of the original conveyance, and of the same estate and same quantity of estate as at the time the conveyance was perfected." (10 N.J.L., at page 46)
To the same effect, see In re Staiger's Estate, 104 N.J. Eq. 149, 152 (E. & A. 1929); Bordwell, supra, 8 Rutgers L. Rev., at p. 142. For a collection of cases in other jurisdictions holding that upon the death of a spouse in an estate by the entirety the interest belongs to the other, not by virtue of survivorship, but by virtue of the title that vested under the original limitation, see 4 Thompson on Real Property (rev. ed. 1940), § 1803, pp. 331, 332.
The estate, being presently vested, would be subject to execution, N.J.S. 2A:17-1.
Servis v. Dorn, 76 N.J. Eq. 241 (Ch. 1909), decided subsequent to Bilder, fails to shed any light upon the question of whether the right of survivorship of a tenant by the entirety was alienable in New Jersey.
In Schulz v. Ziegler, 80 N.J. Eq. 199 (E. & A. 1912), a father who held property as a tenant by the entirety conveyed his interest to his daughter. The daughter sought partition against her mother. A motion to strike the bill was denied. In that case Vice-Chancellor Walker held that the daughter by virtue of the conveyance became a tenant in common with the mother for the joint lives of the mother and father. He further held that if the premises were not susceptible of division, it should be ordered to be sold. The vice-chancellor, by way of dictum, proffered that the father's right of survivorship could not be transferred to the daughter and that upon the death of either father or mother, the daughter's estate would terminate. But on appeal the Court of Errors and Appeals did not adopt the full views of Vice-Chancellor *408 Walker (who by the time of appeal had become Chancellor). Rather, the opinion by Justice Parker, which affirmed the order appealed from, was premised with the careful observation: "We concur in the result reached by the court below, and, for the most part, upon the grounds expressed in the foregoing memorandum of Vice-Chancellor (now Chancellor) Walker." (80 N.J. Eq., at page 201) A careful reading of Justice Parker's opinion shows that he studiously avoided adopting the dictum below that the right of survivorship was not transferable and that the purchaser's estate would terminate upon the death of either of the tenants by the entirety. Justice Parker's opinion was summed up in the following language:
"We hold, therefore, that by virtue of an estate by entireties [as modified by the Married Woman's act] the seisin of husband and wife during the joint lives is essentially a tenancy in common, terminated on the death of either, with remainder in fee to the survivor; and that the right of the husband may be transferred by him to a third party who thereby becomes tenant in common for the joint lives in the husband's place; and that partition may be had between such purchaser and the wife of this tenancy in common, but without affecting in any way the common-law right of survivorship." (Emphasis supplied) (80 N.J. Eq., at pages 201-202)
It is clear that the Court of Errors and Appeals had some doubts concerning the statement below of Vice-Chancellor Walker as to the alienability of the right of survivorship in a tenancy by the entirety at common law. At best the opinion is non-committal and fails to shed any light on the problem here involved. Wortendyke v. Rayot, 88 N.J. Eq. 331 (E. & A. 1917), also decided subsequent to Bilder, did not involve the present problems and contains no comment, by way of dictum or otherwise, upon it.
The next case of consequence is Taub v. Shampanier, 95 N.J.L. 349 (Sup. Ct. 1920). There Justice Minturn said of estates by the entirety:
"So it is declared, evincing the power of sale vested in the husband: `If the husband conveys the estate, and survived his wife his conveyance will thereupon become absolute.' 21 Cyc. p. 1199, and cases.
*409 This conception of the legal status, fortified by the adjudications in this state and elsewhere, supports the power of the husband to sell subject to the contingency of the wife's predecease, thereby effectuating a fee-simple estate in the vendee. Den ex dem. Wyckoff v. Gardner, 20 N.J.L. [556] 557; Washburn v. Burns, 34 N.J.L. 18; Buttlar v. Rosenblath, 42 N.J. Eq. 651; Barber v. Harris, 15 Wend., N.Y., 615; Jackson ex dem. Suffern v. McConnell, 19 Wend., N.Y., 175." (95 N.J.L., at page 351)
Five years later, in J. & A. Steinberg Co. v. Pastive, 97 N.J. Eq. 52 (Ch. 1925), Vice-Chancellor Lewis, albeit in dictum, declared:
"* * * The husband and wife were tenants by the entirety. Upon the death of either the entire fee would vest in the survivor. During the lifetime of both, however, the creditors of either could seize the respective interests and sell the same under execution, but the purchaser of such interests of either of the owners would take simply the prospect or chance of such owner surviving his co-owner; for, as I have already stated, if the person whose interest was thus seized or sold should predecease his co-owner, his interest would fail, and the entire fee would vest in the survivor, to the exclusion of the other's creditors." (Emphasis supplied) (97 N.J. Eq., at page 54)
But compare the opinion of Chancellor Walker in Zubler v. Porter, 98 N.J.L. 444, at page 447 (E. & A. 1923) where it is implied dictum that a conveyance by the husband in an estate by the entirety does not carry with it his right of survivorship.
Gery v. Gery, 113 N.J. Eq. 59 (E. & A. 1933), is simply a recital of some of the previous cases and adds nothing to the disposition of the question involved in the present inquiry, which was not there considered.
Indicative of the opinion of at least a segment of the bar prior to the Zanzonico and Dworan cases was the statement contained in the much utilized treatise, Lieberman, New Jersey Abstracts and Titles, published in 1931, where the author states at § 75, p. 72:
"The husband's deed or mortgage conveys or mortgages only his interest in the estate for his life with the fee if he survives his wife. * * *
*410 At common law and to-day an estate by entirety is, during coverture, subject to sale on execution against the husband, but such sale cannot affect the interest of the wife."
This statement was left unaltered in the 1940 supplement to that textbook.
Such was the state of the law in New Jersey up to the time of the Zanzonico case and Dworan case which relied upon Zanzonico. Putting aside those cases for the moment, we inquire: Did they definitely settle the question at issue so as to cause reliance upon them by the bar of this State in passing upon titles? The answer is clearly in the negative. In Fruzynski v. Radler, 23 N.J. Super. 274 (App. Div. 1952) certification denied 11 N.J. 499 (1953), a husband and wife conveyed property held by them by the entirety to their daughter. Suit was brought by the father to set aside the deed on the grounds that it was fraudulently procured from the father. The wife had died in the interim. In holding that the deed was procured by fraud from the father and therefore that the conveyance was void as to him, the issue presented was what estate if any had been conveyed to the daughter. Judge, now Mr. Justice, Francis, concluded:
"* * * she received only the wife's interest, which was a life estate in common with her husband subject to the right of survivorship. Thus, if Fruzynski had predeceased his wife appellant would have taken the fee. But when the wife died first, the right of survivorship wiped out the life estate and brought the full fee back to Fruzynski. Consequently the judgment establishes full and complete ownership in him." (23 N.J. Super., at page 282)
In the most recent decision on the point in question, Dorf v. Tuscarora Pipe Line Co., Ltd., 48 N.J. Super. 26 (App. Div. 1957), Judge Goldmann interjected the following quaere:
"* * * A purchaser of one tenant's interest on execution sale becomes a tenant in common with the other spouse. See Zubler v. Porter, 98 N.J.L. 444 (E. & A. 1923). If the non-debtor spouse survives, the survivor takes free from the claims of the deceased *411 spouse's creditors, Zanzonico v. Zanzonico, above. Quaere, if the debtor spouse survives, does the purchaser of his interest on execution sale get complete ownership?" (48 N.J. Super., at page 33)
It is our view that the husband could, at common law, alienate his right of survivorship, or, more properly, his fee simple subject to defeasance. The effect of the decisions in this jurisdiction prior to Zanzonico and Dworan are not to the contrary, nor may we add, are the decisions following those cases.
B EFFECT OF THE MARRIED WOMEN'S ACT OF 1852
(L. 1852, p. 407, now R.S. 37:2-12 et seq.)
UPON ESTATES BY THE ENTIRETY.
R.S. 37:2-12 provides:
"The real and personal property of a woman which she owns at the time of her marriage, and the real and personal property, and the rents, issues and profits thereof, of a married woman, which she receives or obtains in any manner whatever after her marriage, shall be her separate property as if she were a feme sole."
At least nine jurisdictions took the view that the Married Women's Act, having destroyed the spousal unity, destroyed the foundation upon which estates by the entirety rested, and therefore such concurrent ownership could no longer arise. Phipps, supra, 25 Temple L.Q., at pp. 28-29. This was the view originally taken in New Jersey, Kip v. Kip, 33 N.J. Eq. 213 (Ch. 1880), and was the view taken by the lower court in Rosenblath v. Buttlar, 7 N.J.L.J. 143 (Ch. 1884). It might be noted that presently tenancy by the entirety does not exist in 29 states. Phipps, supra, 25 Temple L.Q., at p. 32. In the absence of legislation abolishing or altering estates by the entirety, our role, in light of the settled precedent that they do exist in New Jersey, is merely to define their incidents.
The Court of Errors and Appeals in Buttlar v. Rosenblath, 42 N.J. Eq. 651 (E. & A. 1887), settled the question of *412 the effect of the Married Women's Act upon estates by the entirety. After holding that the act does not destroy the estate, it was held that the effect and purpose of the act was to put the wife on a par with the husband. It was held:
"There is nothing in the married woman's act which indicates an intention to exclude this estate wholly from its operation. I think, therefore, that the just construction of this legislation, and the one in harmony with its spirit and general purpose, is that the wife is endowed with the capacity, during the joint lives, to hold in her possession, as a single female, one-half of the estate in common with her husband, and that the right of survivorship still exists as at common law." (42 N.J. Eq., at page 657)
Subsequent decisions have confirmed that presently husband and wife, by virtue of the Married Women's Act, hold as tenants in common for their joint lives; that survivorship exists as at common law and is indestructible by unilateral action; and that the rights of each spouse in the estate are alienable, voluntarily or involuntarily, the purchaser becoming a tenant in common with the remaining spouse for the joint lives of the husband and wife. See e.g., Schulz v. Ziegler, supra; Wortendyke v. Rayot, supra; Zubler v. Porter, supra.
It is clear that the Married Women's Act created an equality between the spouses in New Jersey, insofar as tenancies by the entirety are concerned. If, as we have previously concluded, the husband could alienate his right of survivorship at common law, the wife, by virtue of the act, can alienate her right of survivorship. And it follows, that if the wife takes equal rights with the husband in the estate, she must take equal disabilities. Such are the dictates of complete equality. Thus, the judgment creditors of either spouse may levy and execute upon their separate rights of survivorship.
These conclusions necessitate the overruling of Zanzonico and Dworan cases, supra.
Nor can we perceive any sound policy reason for adhering to the Zanzonico ruling. The unities of the estate are not *413 thereby preserved, since a creditor can become a tenant in common with the non-debtor-spouse during the joint lives of husband and wife. It might be argued that the involuntary sale of a right of survivorship will not bring a fair price. However, the creditor even under Zanzonico can receive a one-half interest in the life estate for the joint lives. It seems to us that if this interest were coupled with the debtor-spouse's right of survivorship the whole would command a substantially higher price and the creditor may thereby realize some present satisfaction out of the debtor-spouse's assets.
Moreover, to hold that a sheriff's deed does not pass the debtor-spouse's right of survivorship compels the creditor to maintain a constant vigilance over the estate. This is particularly true where the purchaser at execution sale of the debtor-spouse's life interest is someone other than the judgment creditor. There is, in short, no compelling policy reason why a judgment creditor should be inordinately delayed, or, in some instances completely deprived of his right to satisfaction out of the debtor-spouse's assets.
The judgment appealed from is reversed and the cause is remanded for the entry of a judgment in accordance with the views expressed in this opinion.
WEINTRAUB, C.J. (dissenting).
The estate by the entirety is a remnant of other times. It rests upon the fiction of a oneness of husband and wife. Neither owns a separate, distinct interest in the fee; rather each and both as an entity own the entire interest. Neither takes anything by survivorship; there is nothing to pass because the survivor always had the entirety. To me the conception is quite incomprehensible. The inherent incongruity permeates the problem before us.
Presumably the estate by the entirety was designed to serve a social purpose favorable to the parties to the marriage. We are asked to recognize incidents more compatible with present thinking. Specifically, we are asked to subject a *414 spouse's interest in the fee to execution sale. I am not sure that I can identify just what is being sold. In theory there is no right of survivorship; nothing accrues on death. And during coverture neither spouse has a separate interest in the fee. Whatever the nature of the "fee" interest a purchaser receives, he can do nothing with it except wait and hope. What he buys is the chance that the non-debtor spouse will expire before the judgment debtor.
I do not seriously urge such academic difficulties; indeed, one cannot confidently make deductions from a premise that is fictional. My objection is a practical one, to wit, that so long as we adhere to the concept of an estate by the entirety, an execution sale will result in the sacrifice of economic interests. Since the purchaser at the sale does not acquire a one-half interest in the fee with a right to partition the fee, the execution sale can be but a gambling event, yielding virtually nothing to the debtor, or for that matter to the creditor either unless he is the successful wagerer at the sale and in the waiting game to follow.
I concede that earlier decisions recognizing a right to sell the life interest of the debtor presented the same problem in theory, but the practical consequences were negligible. I think it has been the general experience of the bar that judgments obtained against a spouse have not been followed by execution sales of the life interest. And in bankruptcy proceedings the interest of the debtor regularly has been sold for a nominal sum to the other spouse or a representative of both. The general assumption, I believe, has been that the fee was not involved; and the life interest for one reason or another was not regarded by outsiders as sufficiently attractive. But if the purchaser at an execution or bankruptcy sale may one day reap the harvest of a full title, there will be an invitation to speculators.
If public policy demands that a creditor's interest be respected (I have no quarrel with the thought), the basis should be just to both the creditor and the debtor. It cannot be unless what is offered for sale is a non-contingent, non-speculative *415 one-half interest which would support a partition suit. In that setting, bidders would know what is being sold and the sale could yield a fair price. An equitable solution can be achieved only by a statute abolishing the estate by the entirety in favor of a joint tenancy, or at least entitling the purchaser at an involuntary sale to have partition. In my judgment, a half-way approach will prove unjust. It will appreciably turn against the husband and wife a fictional concept that doubtless was originated for their benefit.
It should be noted that R.S. 46:3-7 forbids execution sales of the contingent interests there described. The majority hold the interest of a spouse in the fee is "vested." I find it difficult, again in abstract thought, to determine what part of the fee can be said to be "vested" in one spouse at the time of the sale. But realistically it would seem accurate to recognize that the so-called "right of survivorship" is quite contingent, and whether it is within the statute or not, still it would serve the same policy to keep it from the auction block.
The impact upon the free movement of property in the marketplace may also be noted. In effect, the purchaser at the involuntary sale becomes a member of the entity for title purposes. In the hands of a husband and wife, property will be sold when the common economic interests of the family will be furthered. But when the power to alienate the whole is divided between a spouse and a stranger with unrelated economic motivations, property will not be moved unless those diverse interests can come to terms. Neither can compel a sale. In practical effect, there is a new restraint upon alienability to the disservice of the public interest.
I accordingly vote to affirm.
HALL, J. (dissenting).
We are called upon here to determine a question of importance relating to certain incidents of tenancies by the entirety, which oddly enough has never *416 been directly decided by the court of last resort in this State. The decision, no matter which way it goes, will be of retrospective effect and so will be bound to affect titles, since there have been divergent views on the question to some extent among New Jersey lawyers. The obligation of the court in such a situation is, of course, to determine what our law is on the subject, as an original proposition, and if at all possible, to arrive at that conclusion primarily on the basis of past expressions of our highest court bearing closest on the question, which therefor may well be said to have been relied upon by the bar in passing upon titles or advising as to rights under a judgment against one spouse. This approach will wreak the least havoc. Cf. Kimble v. City of Newark, 91 N.J.L. 249, 253 (E. & A. 1917); Fox v. Snow, 6 N.J. 12, 14, 21-25 (1950). I therefore do not conceive it to be a proper exercise of our function, and indeed it may be a grave disservice, to determine the question on the basis of what we think our law might well be or ought to be in the light of modern social and economic considerations or what the law may be elsewhere.
The majority opinion really comes down to this:
At common law the husband could voluntarily alienate the possibility of a fee simple interest (so-called "right of survivorship") subject to defeasance if the wife survived him, and so it was subject to execution for his debts and involuntary alienation by sheriff's sale to the same extent. The Married Women's Act in New Jersey affected only the husband's common law right (the estate by the marital right or jure uxoris) to her share of the rents, issues and profits during their joint lives, so that she became entitled to hold and receive the possession and usufructs of one-half of the estate, in common with her husband, as if a single female, and this result placed her on a complete par with him. Therefore her defeasible survivorship interest became likewise voluntarily alienable by her act and so subject to involuntary alienation at the hands of her creditors.
*417 On the basis of the considerations mentioned I submit that the majority's syllogistic approach and reasoning arrives at and rests upon an incorrect major premise, i.e., the voluntary alienability of the husband's chance of survivorship at common law. This is not only in disregard of expressions of the Court of Errors and Appeals specifically referring to the question and two recent trial court decisions squarely in point, but is at odds with the long-standing basic theory of this "peculiar" estate. The final result reached is, I am firmly convinced, fundamentally wrong from the standpoint of principle and local precedent and is likely to have maximum adverse effect on an incalculable number of titles.
The essential primary inquiry should be, I suggest, to discover what our courts have decided was the effect of our Married Women's Act of 1852 on this tenancy and its incidents. This is so because such would necessarily supersede the common law, and in other states the effect of such statutes has been determined with great contrariety of opinion, running all the way from abolition of the estate and conversion into a complete tenancy in common to holding that the statute is inapplicable to entireties and so has no effect. 2 American Law of Property, § 6.6, pp. 28-30 (1952); 2 Walsh, Commentaries on the Law of Real Property, pp. 32-39 (1947). There is no real difficulty in determining New Jersey's holding on this point and I do not disagree fundamentally with the majority in this respect. The effect was early settled in the leading case of Buttlar v. Rosenblath, 42 N.J. Eq. 651 (E. & A. 1887), and has been reiterated without deviation since. See Gery v. Gery, 113 N.J. Eq. 59 (E. & A. 1933), in which Justice Case cogently reviews and analyzes the leading cases beginning with Buttlar. For our purposes, the New Jersey rule is that the statute had no effect on the incident of survivorship, which, as Buttlar put it, "still exists as at common law." (42 N.J. Eq., at page 657). What the act did without question, and all it did, as was well put in Gery (113 N.J. Eq., at pages 64, 65), was to destroy the husband's estate by the *418 marital right and make the spouses "tenants in common as to the right of possession and the use of the property and as to the right of either spouse to convey his or her estate for the term of the joint lives to a third party," with the stranger becoming a tenant in common with the retaining spouse for the same term. Incidentally, I believe Justice Case in Gery put into final discard the concept suggested in a few cases since 1852, probably more by way of graphic language than of technical holding, that the right of survivorship had become, by virtue of the statute, a contingent remainder in fee to the survivor. See e.g., Schulz v. Ziegler, 80 N.J. Eq. 199, 201 (E. & A. 1912), and Zubler v. Porter, 98 N.J.L. 444, 446, 447 (E. & A. 1922).
The new rule of tenancy in common during the joint lives of course meant that, since each spouse was separately entitled to one-half of the possession and profits and each could now alienate such interest for the term of the joint lives, the same interest could be reached by a creditor of the particular spouse to the same extent. There was no longer any distinction between the spouses. Each could do what the other could.
The retention of survivorship "as at common law" leads one to consider what that common law was in the respect in question as it existed in New Jersey before 1852, and it is here where I respectfully say the majority has fallen into underlying error. In considering this phase of the question before us it may well be suggested that the common-law theory and consequent incidents have little reason and less logic to support them, but to me such can be of little or no concern. The technical aspects of the common law of real property are what they are from ancient days, and generally they can and should only be changed by prospective legislation if different conditions and policies of modern times indicate the desirability of modification. Until then, a court should be bound by them and the chips must fall where they may.
*419 The tenancy rests fundamentally, as the majority points out, on the fiction or artificial contrivance of the unity of the spouses as if they constituted a separate juristic third person, with the property being held by each spouse seized of the whole and not of a share or divisible part. And that unity is indestructible by the unilateral act of either so long as the marriage subsists. Such was the theory on origin in England and has always been accepted in New Jersey both before and after the Married Women's Act. Den ex dem. Hardenbergh v. Hardenbergh, 10 N.J.L. 42 (Sup. Ct. 1828); Den ex dem. Wyckoff v. Gardner, 20 N.J.L. 556 (Sup. Ct. 1846); Washburn v. Burns, 34 N.J.L. 18 (Sup. Ct. 1869); Gery v. Gery, supra. A consequence early said in England (principally by Blackstone in his Commentaries) to flow from this concept (whether rightly or wrongly from the theoretical viewpoint is presently immaterial) was that neither spouse could separately, or without the assent of the other, dispose of or convey away any part. In the first case on the estate in New Jersey this consequence was repeated and recognized. Den ex dem. Hardenbergh v. Hardenbergh, supra, 10 N.J.L., at page 45. It was shortly modified here, however (and we are not concerned with how the law remained in England or elsewhere, see Hopper v. Gurtman, 126 N.J.L. 263, 276 (E. & A. 1940)), by our holding that the unity could be broken during the joint lives to the extent that the husband, without the wife's concurrence, "could devise, alien or mortgage his interest during his own life" so long as such did not "prejudice her rights in case she survive." Den ex dem. Wyckoff v. Gardner, supra, 20 N.J.L., at pages 560, 563. And by virtue of jure uxoris, he could do the same with the wife's interest. The majority concludes, by reasoning therefrom, that because of the absence of such prejudice the husband could convey his chance of survivorship and so the ultimate fee simple, to be nullified if he predeceased. This, I submit, is unwarranted. (The confessed inability to find any English cases before 1776 on the question is significant *420 to me. Quite probably no one conceived there was any such right in view of the indestructible unity theory.) In Gardner the wife was still alive and the only question before the court was whether the husband alone could validly mortgage his interest (which of course included the wife's) for his life. All the court held was that he could and that the mortgagee was entitled to possession on default. It was not concerned with the situation in the event the wife died first, and the opinions must be read in that light. To me they are no authority for the majority's position.
While it may sound logical to reason from the language in Gardner, as the majority does, logic cannot overcome the theoretical incidents of the tenancy. Lack of prejudice to the wife if the majority's view is followed, the supposed incongruity of an opposite result with the husband's power over property held solely by the wife and pure logic are, fortunately or unfortunately, quite beside the point in dealing with this "peculiar estate."
The reason I feel the majority arrives at what to me is this legally wrong premise goes back to the unity theory previously mentioned and what takes place when the first spouse dies. On this event, as Chief Justice Weintraub so tersely puts it in his dissenting opinion, nothing accrues. During coverture neither spouse "owns a separate, distinct interest in the fee; rather each and both as an entity own the entire interest. Neither takes anything by survivorship; there is nothing to pass because the survivor always has the entirety." While this may seem incomprehensible to the modern legal mind, and I confess to a somewhat similar feeling, the concept must remain immutable so long as the tenancy exists in this State in its present form. Thus the unity cannot be broken and the right of survivorship destroyed at law, presently or contingently, by unilateral action. Such to me is the only sound view, best expressed by Professor Walsh in his authoritative Commentaries (op. cit.):
"The right of survivorship cannot be destroyed at law by a conveyance by either breaking the unities. That is the essential difference *421 between a joint tenancy and an estate in entirety. Therefore such conveyance in fee is void at law, and the chance or possibility of survivorship is inalienable at law." (vol. 2, p. 35)
But this does not mean that voluntary deeds or mortgages of the whole interest of one spouse are not and should not be given effect to put the entire fee in the grantee if and when that spouse survives. Such result is and should be reached, not on the erroneous theory of power to alienate the right of survivorship, but by equitable estoppel. Again I quote Walsh:
"But the deed void at law becomes effective in equity on the grantor's survival because equity by estoppel does not permit him to set up the invalidity of the deed; he is bound by his act in selling or mortgaging the property or his interest therein in fee and accepting the purchase price or loan, and justice demands that the void deed or mortgage be given effect as though it were valid." (vol. 2, pp. 35-36)
This approach has been approved in New Jersey. Den ex dem. Wyckoff v. Gardner, supra, 20 N.J.L., at pages 560-561, 563. Cf. Bilder v. Robinson, 73 N.J. Eq. 169, 172 (Ch. 1907). I submit that it can be the only true basis of decisions in other states purportedly supporting the majority's premise, see 2 American Law of Property, p. 28, n. 21; 166 A.L.R. 969, 971-974 (except, of course, in those jurisdictions, of which New York is an example, in which married women's acts and other similar legislation have been given a much broader effect than in New Jersey. See Bilder v. Robinson, supra, 73 N.J. Eq., at page 173).
It must follow that, absent the legal right to alienate the chance of survivorship voluntarily, there is no right to involuntarily alienate through execution sale. Professor Walsh says:
"On a sale on execution of the separate interest of a spouse in the event of the survival of such debtor thereafter, see Hoffman[n] v. Newell, 249 Ky. 270, 60 S.W.2d 607 [89 A.L.R. 489] (1933), arguing that the expectancy passes subject to defeat by survivorship of the other spouse; Hetzel v. Lincoln, 216 Pa. 60, 64 A. 866 (1906); Pos[r]ohenski v. Am. Alliance Ins. Co., 317 Pa. 410, 176 A. 205 (1935); Cole Mfg. v. Collier, 95 Tenn. 115, 31 S.W. *422 1000 [30 L.R.A. 315] (1895). As explained above, the sale of the separate interest of each in the fee is given effect in equity based on estoppel, and as [sic] a sale on execution is at law, with no elements of estoppel. It is clear that these cases cannot be approved as against the cases in most states holding contra." (op. cit., p. 37, n. 16)
The result may be said to give in modern times, as a matter of policy, an undesirable shield from creditors, even those willing to speculate. Perhaps that was one of the original purposes for the creation of the estate. However, any change should be brought about only by prospective legislation and not by retrospective judicial fiat.
So much for theory. Turning to expressions by our highest court which it may well be said the bar has relied upon, I find a direct statement in Schulz v. Ziegler, 80 N.J. Eq. 199 (E. & A. 1912), in the quoted opinion below of Vice-Chancellor Walker, substantially adopted by Justice Parker for the court in a unanimous decision. There a father and mother were tenants by the entirety. The father conveyed his entire interest to his daughter, who sought partition against her mother. A motion to strike the bill was denied and the decree affirmed. The vice-chancellor said:
"What they became by virtue of the father's conveyance to the daughter was tenants in common for the joint lives of the parents. The father's conveyance to the daughter did not operate in anywise to limit the estate of the wife or her right to the survivorship, and it seems that it will not defeat his right of survivorship, but that it amounts only to a conveyance of his right of possession during his life, and that it cannot operate to let in a third party as tenant by entirety with his wife. That estate exists only between husband and wife, and neither can dispose of any part of it without the assent of the other; the peculiar interest and estate not being severable. Den ex dem. Wyckoff v. Gardner, 20 N.J.L. (Spenc.) 556. The husband can, however, alienate his interest in the estate for his own life. Ibid. See also Servis v. Dorn, 76 N.J. Eq. (6 Buch.) 241. Life tenants may be tenants in common and their estates may be partitioned. Roarty v. Smith, 53 N.J. Eq. (8 Dick.) 253, 255. The defendant is entitled to the enjoyment of her estate in the lands during the lifetime of herself and her husband by virtue of the married woman's act of 1852. Servis v. Dorn, supra. The complainant is entitled to the enjoyment of the estate and interest in *423 the lands which she derived from her father's conveyance during the joint lives of her father and her mother, the defendant. The first section of our partition act (P.L. 1898, p. 644; [C.S. p. 3897]), gives the right to partition to tenants in common, and the parties to this suit are such. True, their estate is less than a fee simple, but it is an estate for the joint lives of the parents of the complainant, and such an estate is partible. If the premises should prove not to be susceptible of division between the parties, and shall be ordered to be sold, the purchaser's estate will terminate upon the death of either Mr. or Mrs. Ziegler." (80 N.J. Eq., at page 200; emphasis added)
Even closer is the statement by the same judge, then Chancellor, in Zubler v. Porter, 98 N.J.L. 444 (E. & A. 1922), also unanimous:
"This conveyance [a sheriff's deed to the wife following execution on a judgment against the husband] divested out of Mr. Butterworth and vested in Mrs. Butterworth, as trustee, the former's estate in the land as potential tenant in common with her for the joint lives of both of them, leaving him only the remainder of the entire estate in the event of his surviving her." (98 N.J.L., at page 447; emphasis added).
The rationale of the decision, and indeed the very language of Justice Case for the same unanimous court in Gery in 1933, appears to me to have the same connotation. See 113 N.J. Eq., at pages 64-65.
While the statements in all these opinions may be said to have been unnecessary to the actual decision and therefore dictum, they are to me expressions of the strongest effect in that category and of the character lawyers would naturally and justifiably rely upon. It is hard to imagine judges of the learning of Walker, Parker and Case in the field of real property at common law expressing or approving such views without being certain of their correctness. The majority seems to think Schulz, Zubler and Gery are not persuasive, and this upon contrary assertions by single judges, one at the trial level and citing no authority and the other sitting alone on an appeal from the district court. Taub v. Shampanier, 95 N.J.L. 349 (Sup. Ct. 1920); J. & A. Steinberg Co. v. Pastive, 97 N.J. Eq. 52 (Ch. 1925). To *424 me these statements are just as much dictum as those in the Court of Errors and Appeals, but entitled to very little weight. And then we have the holdings precisely in point in recent years of trial judges by well-documented opinions in Zanzonico v. Zanzonico, 24 N.J. Misc. 153 (Sup. Ct. 1946) and Dworan v. Miloszewski, 17 N.J. Super. 269 (Cty. Ct. 1952), which the bar must also have relied upon. Nor can I see how it can be seriously urged that a seemingly contrary observation in one Appellate Division opinion subsequent to the cases just cited, and a query in another, would completely reverse reliance by lawyers on the three highest court statements, one almost half a century old, and the two recent exact decisions at the trial level.
I agree thoroughly with the observation of the Chief Justice, borne out by the observations of the amicus curiae and my own experience in practice, that the bar generally has been of the opinion that the ultimate fee was not involved as a result of a judgment against or bankruptcy of one tenant by the entirety and has acted accordingly in passing titles or advising action concerning such judgments. The opposite point of view, illustrated by defendants in this case, would seem to be a rarity. So, to my mind, the result reached by the majority has the definite and dangerous possibility of upsetting many more titles relied upon for years and causing activation of dormant judgments with similar effect than if we were to hold that the contingency of survivorship cannot legally be voluntarily or involuntarily alienated. And, as I have said, the latter to me is the only sound and correct conclusion.
For the reasons here expressed, as well as for those set forth in the dissenting opinion of the Chief Justice in which I concur, I would affirm the judgment below.
For reversal Justices BURLING, JACOBS, FRANCIS, PROCTOR and SCHETTINO 5.
For affirmance Chief Justice WEINTRAUB, and Justice HALL 2.
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425 F. Supp. 137 (1977)
Alfred U. McKENZIE et al., Plaintiffs,
v.
Thomas F. McCORMICK, Defendant.
Civ. A. No. 974-73.
United States District Court, District of Columbia.
January 12, 1977.
Henry Polmer, Douglas L. Parker, Peter Kolker, Washington, D. C., for plaintiffs.
Paul M. Tschirhart, Ann S. DuRoss, Asst. U. S. Attys., Washington, D. C., for defendant.
MEMORANDUM OPINION
PARKER, District Judge:
Three black employees of the United States Government Printing Office (GPO or Printing Office) on behalf of themselves and black employees similarly situated, charge that they have been wrongfully denied employment opportunities, free of racial bias and discrimination. Specifically, they claim that clearly identifiable patterns of racial discrimination are presently and have long been marked out in the Offset Press Section (OPS) of the Printing Office. They contend that racial discrimination has frustrated and prevented them and other black employees from promotions to which they otherwise are entitled and qualified. In the absence of judicial intervention they claim that these patterns and practices will continue. They seek declaratory and injunctive relief from further discrimination in employment and promotional policies in the Offset Press Section. The named defendant is the Public Printer of the United States, Thomas F. McCormick. Jurisdiction of the Court is based upon Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16.
The parties have filed cross motions for summary judgment. The material facts upon which plaintiffs rely are free of dispute *138 and are based almost entirely upon data secured by discovery from the GPO records as well as official data of the United States Government.[1] They are not challenged by the defendant, but he does contend that the inferences and conclusions which plaintiffs draw from the data are unwarranted and are not compelling.
For the reasons set forth, this Court finds that there is a sufficient showing by clear and convincing evidence that blacks in the Offset Press Section are and have been the constant target of racial discrimination and have been wrongfully denied equal opportunities in both employment and promotion. This Court therefore concludes that the plaintiffs' motion for summary judgment should be granted and the defendant's cross motion for summary judgment should be denied.
Background of the Litigation
This proceeding was filed in 1973 and has since followed an unsteady course. At that time, plaintiffs Alfred U. McKenzie, Willis E. Jones and Alfred L. Ross, Jr. were employed in the Offset Press Section of the Printing Office. McKenzie initially filed a written complaint at the agency level alleging that as an OPS employee he was the victim of racial discrimination and had been denied opportunities for training and advancement. After pursuing procedures at that level he was notified that his complaint had been rejected. He then filed a complaint for relief with this Court which was later amended to include class action allegations on behalf of past, present and future black employees of the Section. The Jones and Ross complaints were filed with the GPO Director of Equal Employment Opportunity, and alleged personal discrimination and discrimination against a class of black employees of the Offset Press Section. Initially, their complaints were formally accepted but no investigation was ever undertaken. Later the Director of Equal Employment Opportunity, acting on behalf of the GPO, reversed the earlier decision and rejected their complaints. The two were advised of their statutory right to file a civil action and immediately thereafter Jones and Ross filed a class action in this Court. The complaint previously filed by McKenzie was amended to include the later filed class action complaint of Jones and Ross. Thereafter, upon the Government's motion, the proceeding was remanded to the GPO to undertake a review, investigation, and an administrative hearing on the plaintiffs' allegations. Subsequent to the remand, the Government Printing Office also undertook an investigation of a discrimination complaint previously filed by an employees' organization, the Coalition of Minority Workers (CMW). That complaint included allegations similar to those made by the individual plaintiffs. On remand the GPO Director of Equal Employment Opportunity issued findings that did not support plaintiffs' claims of discrimination. The plaintiffs expressed dissatisfaction with the findings and requested a hearing. For a variety of reasons, not important here, the hearing was never scheduled. On the basis of the developed record, motions for summary judgment were filed by the parties.
Organization of the Offset Press Section
The Offset Press Section is an organizational unit within the Production Department of the Printing Office. That Department encompasses the sections of the GPO which physically produce printed material. It consists of four divisions, including the Offset Division.[2] The Offset Division likewise is divided into four sections: Offset Preparation, Offset Negative, Offset Plate, and the Offset Press Section.
*139 There are three categories of supervisors within the Offset Press Section, including: Foremen (2), Assistant Foremen (5), and Group Chiefs (9). These persons supervise the Offset Pressmen and Printing Plant Workers who actually operate and maintain the offset press equipment. Most of the journeyman pressmen are highly trained individuals who operate the offset press equipment and are referred to generally as "Offset Pressmen." They operate large and complicated presses. Some of the journeyman pressmen occupy "Uprate" positions. These positions include Web Pressmen and Two Color Pressmen and are journeymen who operate more complicated offset press equipment or perform more specialized functions. The Head Pressmen are responsible for the operation of Uprate equipment and supervise other pressmen working on that equipment. Uprate Pressmen are compensated at higher wage rates than that of the regular Offset Pressmen.
Workers generally referred to as "helpers" assist the journeyman pressmen in operating the offset press equipment and perform a variety of duties. Some helpers are selected to participate in training programs, such as the Offset Press Assistant Trainee Program or the Apprenticeship Program. They are designed to train the helpers to eventually become journeyman pressmen. Employees participating in such programs are referred to as "trainees" or "apprentices," rather than "Printing Plant Workers."
The Class Action Claim
Plaintiffs contend that the data prepared and submitted by the Government Printing Office establish clearly and abundantly that the defendant's employment and promotional policies discriminate against blacks. There is little, if anything, in the record to refute this assertion.
Despite the GPO's contention that race is an insignificant factor in promotion, the fact remains that blacks have been consistently underrepresented in Offset Press Section management positions. Indeed, the number of them so employed suggests that they may be classified as an endangered species. There were no black supervisors in the Offset Press Section at the date of the filing of this action. Prior to 1973, one black supervisor occupied the position of Group Chief from August 1962 through March 1966. For the period 1971-73, blacks comprised roughly one-half of the employees of the OPS but no black held a supervisory position such as Foreman, Assistant Foreman or Group Chief. In those three years, well over 80% of the Uprate Pressmen were white, whereas the Printing Plant Workers, the lowest ranked employees, were over 90% black.
The disparity in wages between black and white employees in the Offset Press Section shows remarkably similar pattern of discrimination. From 1971 to 1973 the average wage of the white employee rose from $6.71 per hour to $7.84; the average wage of a black increased from $3.84 to $5.05 per hour.
Of the 53 persons in the Section who earned more than the standard journeyman rate of $7.85 during the three year period, over 90% were white whereas of those who earned less than the standard journeyman rate over 90% were black.
As of the date of the filing of this proceeding, there was one black person occupying an Uprate position in the Offset Press Section. The employee had been promoted to that position in 1972. Prior thereto, no black person had assumed any Uprate position. From February 16, 1964, through September 3, 1972, 17 persons were promoted from Offset Pressman positions to Head Pressman positions. All 17 promoted during that period were white. As of September 1973, the average length of tenure for black journeymen in the Offset Press Section of the GPO was 14.8 years, indicating that black journeymen were available for training and for promotion during this time period.
The promotion procedures and policies within the OPS are of major concern. The plaintiffs claim that these practices have been biased, inherently unfair and present an impossible hurdle in securing promotion *140 and advancement. In addition, they claim that minority interests have not been adequately represented among the decision makers, those who make the ultimate determinations on promotions. Data and references secured from the defendant through discovery support these claims.
Prior to 1972, under the GPO's promotion procedures, job vacancies were not posted anywhere in the agency. Employees generally considered were limited to those who had either applied for a specific vacancy, had completed the Supervisory Development Program, had been nominated by their supervisors, or were already occupying supervisory positions. The crucial decision as to who was promoted was ultimately made by the "appropriate Operating Official." He usually was a person in a management or supervisory position in the employee's section. If there were more than five qualified applicants, a Promotion Panel was utilized. However, the Panel performed no independent function of reviewing the employee's suitability for the position or the validity of the supervisor's evaluation. The supervisory evaluation remained a very important if not the most important factor. Ultimately, a list of candidates was prepared, and they were rated "Best Qualified," "Better Qualified," or "Qualified." This list was returned to the Operating Officials. Those officials also received supervisory evaluations and digest of employment for each of the top five candidates. Using these materials, the appropriate Operating Official would then select the person to be promoted.
In 1972, there was very little change in the promotion practices followed. Notices of individual job openings were published, and an Equal Employment Opportunity representative was added to the Rating Panel. However, the most important factor in rating employees was still the evaluation by the employee's supervisor.
Indeed, the critical factor in promotion determinations is the subjective employee evaluation made by these supervisors. They rate employees who have been declared eligible for promotion by the GPO Personnel Office. Employees receiving low supervisory evaluations are dropped from further consideration regardless of other qualifications. This crucial evaluation is not based on objective criteria measuring previous job performance, but rather on the basis of whether or not the supervisor "felt" the person being evaluated should be promoted. This practice has of course resulted in the exclusion of blacks from higher paying jobs.
For some time the Printing Office has sponsored a training course, the Supervisory Development Program. The Program is designed to provide a pool of qualified candidates for consideration and selection to supervisory positions. It has been an important factor in the source of selection of persons for promotion in the Offset Press Section. Plaintiffs contend the program has been limited and of little value for blacks and that it has been utilized essentially as a vehicle for qualifying whites for promotion and favoring them over equally competent black personnel. The defendant has admitted that selection of participants in the program is made on the basis of supervisory evaluations, test scores, interviews with an evaluation panel, and finally selection by a management official. Again, a critical factor is that the evaluation procedure relies in large part upon uncertain and illusory standards administered by a white supervisor. The evaluation or rating panel considers aside from the applicant's test scores, experience, and education, such subjective factors as supervisory evaluation and performance during the interview. This, of course, can and has discounted any objectivity that might possibly be associated with other criteria.
A journeyman pressman status is generally achieved in the Offset Press Section by one of three possible routes: Apprenticeship Program, Letterpress Transfer Program and Offset Press Assistant Trainee Program. The Apprenticeship Program was instituted in 1922. In this five-year training program applicants are selected from a Civil Service Commission roster and from the Printing Plant Worker force at *141 the GPO. The applicant must acquire a passing score on the Civil Service Commission examination and possess an above average work and leave record. The worker at the GPO is selected on the basis of a supervisor's evaluation, his leave records, and Civil Service score. The Letterpress Transfer Program involves a transfer of pressmen working on cylinder presses in the Letterpress Section into the Offset Press Section. After designated training, the transferred worker becomes a full-fledged Offset Pressman. The Offset Press Assistant Trainee Program was inaugurated in 1966. Initially, six persons (four black and two white) completed a period of training and were promoted to become Offset Pressmen in July of 1970. The original program was designed in two phases: first, a minimum of three years of training to reach the position junior offset press assistant; second, two years of training to become an Offset Press assistant and eligible for advancement to Offset Pressman. The second phase of the program was abolished and program trainees eligible for advancement to the second phase instead became eligible for assignment to the GPO Apprenticeship Program as advanced offset pressmen apprentices.
The Apprenticeship Program has failed to provide any appreciable opportunity for blacks to become Offset Pressmen. Until 1968, despite the overwhelming percentages of black employees in the printing plant worker category, apprenticeship classes were predominately white and failed to include a significant number of blacks.
Participation in the Program has not resulted in even a token number of black apprentices becoming Offset Pressmen. From 1968 to 1973, 98 blacks successfully completed the Program but only one was actually assigned to the Offset Press Section. During the same period, 178 white persons graduated from the Apprenticeship Program and 10 were assigned to that Section. During the entire period 1964 through 1971, of the 11 apprentices who attained journeymen status in the Offset Press Section, only one was black.
Blacks also appear to have been totally rejected in the Letterpress Transfer Program. During the period October 1968 through October 1973, 21 persons were transferred from Letterpress to Offset and became journeyman pressmen. None was black.
The Apprenticeship and the Letterpress Transfer Programs have included mostly white workers. On the other hand, the Offset Press Assistant Trainee Program, has historically been mostly black. While it has provided some opportunity for black Printing Plant Workers to become Offset Pressmen, it is subordinate to and has not afforded a supply of journeyman pressmen as under the Apprenticeship and the Letterpress Programs. Moreover, the persons completing the Apprenticeship Program and those transferring from the Letterpress Section have priority for selection for journeyman positions over trainees who have completed the Offset Press Assistant Trainee Program. Therefore, despite the number of black employees participating in the Trainee Program, they do not have an opportunity to become Offset Pressmen equal to that afforded to whites through the Apprenticeship and Letterpress Transfer Programs.
The sum of the statistical evidence presented to this Court shows that there is a lingering policy of racism in the Offset Press Section and that without remarkable exception, the higher ranking, better paying positions in the OPS are held by whites while blacks are clustered around the lower ranking and poorer paying jobs. The evidence also shows that blacks, who constitute more than 50 percent of the employees in that Section, are promoted substantially less frequently than whites.
When racial discrimination is at issue "statistics often tell much, and courts listen." State of Alabama v. United States, 304 F.2d 583, 586 (5th Cir. 1962), affd. per curiam, 371 U.S. 37, 83 S. Ct. 145, 9 L. Ed. 2d 112 (1962). As recently noted, "statistical evidence alone showing a disproportionately low number of black employees [is] . . . sufficient to support a finding of *142 discrimination." Equal Employment Opp. Com'n v. Detroit Edison Co., 515 F.2d 301, 313 (6th Cir. 1975). Such evidence is "particularly appropriate in Title VII class actions where it is the aggregate effect of a[n employer's] . . . policy on the class which is important." Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 259 (3rd Cir. 1975), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975).
The GPO does not deny the validity of the data but counters and explains that blacks have not been promoted because they fall short of meeting established eligibility requirements including tests and supervisory ratings. Defendant further points out that fair and timely notice of job vacancies is now the rule; that since 1972 blacks have been members of promotional panels; that there is present a black EEO representative; that since 1971 promotional examinations have been closely monitored; that supervisory evaluations appear to be made on the basis of merit rather than race; and, that since 1973 the GPO has had an Affirmative Action Plan. In short, the defendant denies the existence of racial discrimination and argues that the employment picture for blacks in the OPS has significantly improved and that present policies and procedures have resulted in increased promotion and opportunities for promotion. But the data in this regard are limited and clearly do not reflect any remarkable improvement. In view of the record the Court is not convinced that there has been a radical departure from the past within the Offset Press Section and that racial discrimination has been abated to any appreciable degree.
On the basis of the foregoing, this Court concludes that the currently employed black workers of the Offset Press Section of the Government Printing Office, as class plaintiffs, are entitled to appropriate relief. Counsel for the plaintiffs shall prepare and submit a proposed order within 20 days. The order should give consideration and allowance to any changes in the employment pattern and promotional policies affecting black workers during the pendency of this litigation.
The Individual Claims
As to the three named plaintiffs[3] who claim Title VII violations, the record does not lend itself to resolution by summary judgment. The defendant contends that the failure of each plaintiff to be selected for promotion was a combination of factors and generally a lack of supervisory qualifications and potential. This is sharply disputed by the plaintiffs. They claim that while they were qualified for promotion, that nonetheless, they were rejected. They offer affidavits in support of their positions which the defendant disputes. There are material facts at issue and in dispute with respect to the individual claims. They can and should be presented and resolved at a trial de novo where the plaintiffs and the defendant may present additional testimony and evidence pertinent to the issues and their respective contentions.
As to the class action claim, summary judgment is granted to the plaintiffs and the defendant's cross motion for summary judgment is denied. As to the individual claims, the motion of the plaintiffs for summary judgment and the cross motion of the defendant for summary judgment are denied.
NOTES
[1] The statistics and data are provided by the defendant's responses to plaintiffs' interrogatories, the agency investigative file including the investigative file prepared by the GPO on the complaint of the Coalition of Minority Workers (CMW File), "Study of Minority Group Employment in the Federal Government," published November 30, 1969 by the United States Civil Service Commission and "Minority Group Employment in the Federal Government," published May 1963 by the U.S. Civil Service Commission.
[2] The other three divisions are Binding, Composing and Letterpress.
[3] The plaintiff Alfred U. McKenzie resigned from his employment at the Government Printing Office during the pendency of this suit.
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475 S.W.2d 811 (1971)
Willie Faye LINCOLN, Appellant,
v.
Carol McCUBBIN, Appellee.
No. 8081.
Court of Civil Appeals of Texas, Texarkana.
November 22, 1971.
Rehearing Denied February 1, 1972.
*812 R. L. Whitehead, Sr. and Gary Beckworth, Longview, for appellant.
Porter Johnston, Touchstone, Bernays & Johnston, Dallas, for appellee.
RAY, Justice.
Willie Faye Lincoln, appellant (plaintiff) filed suit in the District Court of Gregg County, seeking damages for her personal injuries sustained in an automobile collision when the Phillips vehicle in which she was riding was struck by an automobile driven by the appellee (defendant), Carol McCubbin. Appellant and her companion, George Phillips, had stopped at a drive-in restaurant to purchase food. When they started to leave the parking area, it was necessary for Phillips to stop his automobile at the edge of the street to wait for oncoming traffic. Appellee McCubbin backed her vehicle into the right-rear door of the automobile in which appellant was a passenger. Appellant was in the passenger position in the front seat of the Phillips vehicle when the collision occurred and she was thrown against Phillips as a result of the impact. She alleged that she sustained a "whiplash injury" and that as a result of her injuries she suffered mental and physical pain, loss of earnings and medical expenses. The jury found the sum of $348.00 to be the reasonable and necessary expense for the treatment of appellant's injuries and found that appellant had lost earnings in the past in the sum of $300.00. In answer to the special issues concerning past physical pain, past mental anguish, future mental pain, and future mental suffering, the jury wrote "None" in the blanks provided at the appropriate places on the court's charge. The trial court overruled appellant's motion for mistrial and appellant's motion for new trial and rendered judgment for appellant in the sum of $648.00.
Appellant comes to this court on four points of error. In each point of error appellant complains about the jury's answers to the damage issues on pain and suffering, and states that the trial court erred in failing to grant appellant's motion for new trial because:
No. 1. The jury's answers to these issues were against the great weight and preponderance of the evidence;
No. 2. Because there was no evidence to support the jury's answers to these issues;
No. 3. Because there was insufficient evidence to support the jury's answers to these issues;
No. 4. Because the jury's answers to these issues were manifestly unjust and unfair.
The pleadings in this case do not raise the issue of whether appellant was injured at all as a result of the collision. The case was not tried on that basis, nor was a special issue requested by appellee to have the jury determine if appellant had been injured as a result of the collision. There is uncontradicted expert testimony by Dr. Walter Hart that he found objective signs of a neck injury following the date of the collision. The collision occurred on July 17, 1970, and Dr. Hart examined appellant on July 20, 1970, and had her hospitalized. He made a diagnosis of whiplash injury and prescribed drugs to ease the pain and to relax her muscles. His testimony indicated that she could not have worked as a waitress for a period of six months after the injury, and that it would be two years before she recovered from the traumatic effects of her injury. His testimony established *813 that she suffered mental pain as a result of the injury, and that it would be another year before she recovered from the mental pain and anxiety. The testimony of Dr. Hart is uncontradicted in the record.
The principal issue in this case, as we see it, is whether the jury can be justified in finding the primary issues of negligence against appellee and then find appellant entitled to recover reasonable and necessary expenses for her treatment of her injuries, along with a recovery for lost earnings, but then deny appellant any recovery for pain and suffering. Under the facts of this case we do not think so.
This court held in Armstead v. Harvey, 390 S.W.2d 871 (Tex.Civ.App. Texarkana 1965, no writ), that circumstances do exist in which the jury can determine that the plaintiff is entitled to recover medical expenses without making an award for pain and suffering, time lost from daily work, and cost of medication. In other words, the jury could be justified, under a peculiar set of facts, in finding that plaintiff would be entitled to recover his doctor's bills for his examination, but not award him any other elements of damage if they found and believed that the plaintiff was not injured. This court was quick to point out, however, that the facts in the Armstead case were different from those in Laney v. Hardy, 265 S.W.2d 609 (Tex. Civ.App. El Paso 1954, no writ). In that case it was undisputed that the injured party's jaw was broken and that he was incapacitated for five weeks with a loss of income of $50.00 per week. The El Paso Court of Civil Appeals found that the jury's award for $126.00 was inadequate when the dentist bill was $125.00, and reversed the case for a new trial.
In the present case, appellant Lincoln testified that her neck started hurting shortly after the collision, and that she went to her family doctor, Walter Hart, in Gladewater, Texas; that she was hospitalized for six days; and that she could not work because her neck was hurting her so badly. Further, she could not pick up her baby, nor could she do her household chores because of her injuries. Her employer, Jessie Watson, testified that when he saw her in the hospital she appeared to be in pain. George Phillips, the driver of the automobile, testified that appellant complained of pain shortly after leaving the scene of the collision. Appellant's husband testified that his wife was in pain when he saw her immediately after the collision, and that he observed her in pain around the house when she would stoop over to do anything or pick up anything. The testimony concerning the injuries and pain suffered by appellant is not contradicted in any manner by appellee. The only evidence before this court is that appellant was injured and that she suffered pain as a result of the injury she received following the automobile collision.
We believe that the jury's answer of "None" to the special issues concerning damages for pain and suffering are so against the great weight and preponderance of the evidence as to be manifestly unjust. The opinion of the Dallas Court of Civil Appeals in Berry v. Lowery, 266 S.W.2d 917 (Tex.Civ.App. Dallas 1954), amply applies in this case when that court stated: ".... though the amount of damages is ordinarily left to the discretion of the jury under the evidence before them, yet they cannot ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence (citing cases). In the instant case the verdict was manifestly wrong under the evidence, and the court should have granted a new trial."
A review of the testimony in this case shows that the answers of the jury that appellant Lincoln "suffered no damages is not only unsupported by any evidence, but is directly contrary to all the evidence." Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954). The Amarillo Court of Civil Appeals followed the holdings in the Berry *814 Cases, supra, in deciding Bolen v. Timmons, 407 S.W.2d 947 (Tex.Civ.App. Amarillo 1966).
Appellant's points of error One and Three are sustained.
The judgment of the trial court is reversed and remanded.
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475 S.W.2d 924 (1971)
Edward David MULLANE, III, Appellant,
v.
The STATE of Texas, Appellee.
No. 44330.
Court of Criminal Appeals of Texas.
December 21, 1971.
Rehearing Denied March 1, 1972.
*925 Clyde W. Woody, Marian S. Rosen, Thomas E. Lucas, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Don Keith, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction is for murder with malice; the punishment, life.
The sufficiency of the evidence has not been challenged. The appellant testified in his own behalf. A brief part of appellant's testimony on direct examination by his retained counsel is as follows:
"I picked the gun up and slid over to the the driver's side. And when he got in the car, I still had the gun in my hand. And he took out his money and laid it on the dashboard ... I guess he knew I wasn't going to do it until he got to pull that money out and just gigging me, and that is when I shot him.
* * * * * *
"Like I say, when he did get shot, I just pointed the gun and turned my head and pulled the trigger."
Then, on cross-examination, the appellant testified;
Questions by the Prosecutor:
"Q. You are Edward David Mullane, III?
"A. Yes, sir.
"Q. The 4th day of March, 1967, you did kill Thad Felton by shooting him with a gun?
"A. Yes, sir.
"Q. And that occurred in Harris County, Texas?
"A. Yes, sir.
"Q. And you killed him for the nine hundred dollars, is that correct?
"A. Yes, sir."[1]
Appellant's defense theory as explained to the jury in opening argument was that *926 he was paid by the deceased to help him commit suicide.
Court-appointed counsel on appeal filed an appellate brief. Appellant later retained counsel, who has filed a brief. The only ground of error urged in appointed counsel's brief is substantially the same as the first ground of error presented by retained counsel.
The first ground of error is that "The Appellant has been denied effective assistance of counsel at crucial times pre-trial, which has tainted the trial and conviction to such a degree that it requires reversal in that the State utilized indirectly a confession which was obtained after the Appellant requested counsel."
All material facts necessary to prove the crime were testified to by appellant at the guilt-innocence stage of trial. Where, as here, a defendant, represented by counsel, testifies in his own behalf, we will presume this act to be undertaken voluntarily and with full knowledge of his rights. See Preston v. State, 41 Tex. Cr.R. 300, 53 S.W. 127 (Tex.Cr.App.1899); 24 Tex.Jur.2d, Sec. 665, P. 271.
It is not clear what the appellant means by "the State indirectly utilized a confession". He apparently contends that the murder weapon, a pistol, was discovered as a result of an alleged legally inadmissible oral confession and argues therefore it was the "fruit of the poisonous tree".
The appellant in his confession made before the jury testified concerning the disposition he made of the pistol and other evidence after the murder and to the details of their recovery. The appellant's judicial confession voluntarily made before the jury would constitute a waiver of any possible error. See Cook v. State, 409 S.W.2d 857 (Tex.Cr.App.1966) and Johnson v. State, 445 S.W.2d 211 (Tex.Cr.App. 1969).
This ground of error is overruled.
Appellant's second ground of error is that "The trial court committed reversible error in refusing to instruct the jury as to the amount of time the appellant would have to serve if he was given a life term." No objection to the charge was made on this ground and no such instruction was requested. During the course of their deliberation the jury inquired "Please explain what the sentence life means." The trial court referred the jury to the charge already submitted. Appellant asserts fundamental error, alleging that he was denied due process of law because the jury was not instructed as to how its discretion in assessing the sentence should or could be exercised. In McGautha v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971), the United States Supreme Court considered the claim "that the absence of standards to guide the jury's discretion on the punishment issue is constitutionally intolerable." The Court said:
"In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammelled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution." 402 U.S. at 207, 91 S.Ct. at 1467.
Appellant's second ground of error is overruled.
The appellant's last ground of error is "The court committed error in refusing to allow the appellant to introduce into evidence the arrest warrant and search warrant by which evidence was obtained in violation of the fourth, fifth, sixth and fourteenth amendments to the Constitution of the United States."
The contention made in this ground of error that the trial court refused to allow the appellant to introduce the arrest warrant and search warrant is not supported by the record. Our examination of the record does not reveal that any such instruments were offered into evidence. The *927 record does not show that such instruments were even marked for identification by the court reporter. Appellant's counsel merely asked the witness, a clerk from the magistrate's office, if such instruments were in her records. If the appellant felt that the trial court was refusing to permit him to introduce the instruments he did not attempt to perfect the record by offering the instruments for a bill of exception. It is incumbent upon the appellant to have these instruments included in the record, if he expects them to be reviewed by this court. See Broussard v. State, 166 Tex. Crim. 224, 312 S.W.2d 664 (Tex.Cr.App.1958); Johnson v. State, 158 Tex. Crim. 233, 254 S.W.2d 131 (Tex.Cr.App.1952); Lee v. State, 167 Tex. Crim. 608, 322 S.W.2d 260 (Tex. Cr.App.1958); Doby v. State, 383 S.W.2d 418 (Tex.Cr.App.1964) and Satillan v. State, 470 S.W.2d 677 (Tex.Cr.App.1971).
The judgment is affirmed.
Opinion Approved by the Court.
NOTES
[1] Carew v. State, 471 S.W.2d 890 (Tex.Cr.App.1971) is a companion case.
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153 A.2d 127 (1959)
Frank L. BUDLONG et al.,
v.
ZONING BOARD OF REVIEW OF THE CITY OF CRANSTON.
M. P. No. 1273.
Supreme Court of Rhode Island.
July 15, 1959.
Charles F. Cottam, Edward W. Day, Jr., James M. Sloan, III, Providence, for petitioners.
Frank W. Golemba, City Sol., James DiPrete, Jr., Asst. City Sol., Francis A. Monti, Providence, for respondent.
FROST, Justice.
This is a petition for a writ of certiorari to review and quash the decision of the respondent board granting the application of Edward C. Spring and his wife Laura C. Spring and Thomas G. Gattone, a funeral director, for an exception under the zoning ordinance of the city of Cranston to permit the premises owned by the Springs and located at 594 Pontiac avenue in that city to be used as a funeral home. Pursuant to the writ the pertinent records have been certified to this court.
The property in question comprises a lot on the northerly side of Pontiac avenue with a frontage of 175 feet, a depth of 235 feet and contains 41, 125 square feet. It was purchased about seven years ago by the Springs and at that time there was on the lot a one-family house which has since been made into a four-apartment house. At the time of the hearing all the apartments were rented.
Pontiac avenue is a four-lane arterial highway. The Spring property is numbered lot 692 on assessor's plat No. 5, section 2. For approximately 100 feet in depth on the northerly side of Pontiac avenue, from Forest avenue westerly for a distance of about 762 feet including the southerly portion of lot 692, the land is zoned for apartments. Continuing in a westerly direction for about 800 feet to Rolfe street the zoning is predominantly business with some dwellings. Rolfe street was mentioned by the chairman of the board as the center of the business district of Cranston.
On the southerly side of Pontiac avenue from Waldron avenue, which in reality is the continuation of Forest avenue as it crosses Pontiac avenue, the land westerly to Colonial avenue is zoned for apartments; from Colonial avenue to Oakland *128 avenue, a distance of approximately 400 feet, the zoning is for business; and from Oakland avenue to Blackamore avenue, a distance of approximately 400 feet, the zoning is for dwellings.
United Star Super Market is located in a large commercial building with an extensive parking area on the northerly side of Pontiac avenue approximately 340 feet westerly from the Spring property. The Butterfield Funeral Home is located on lot No. 639 on the northerly side of Pontiac avenue approximately 1,000 feet westerly of the property in question. There are two doctors' offices on the southerly side of Pontiac avenue at or near the corner of Branch avenue and also an optometrist's office.
It thus appears from the evidence that Pontiac avenue, from Forest and Waldron avenues on both sides, westerly to or near Colonial avenue, a distance of approximately 800 feet, is residential in character. In almost the center of this area Thomas G. Gattone desires to establish a funeral home. Doctor Francis A. Holland, who has his office and lives at 599 Pontiac avenue, nearly opposite the Spring property, testified that he purchased his property a year ago, and that he had no objection to the funeral home.
Frank L. Budlong who lives at 604 Pontiac avenue, which is next to the house which Mr. Gattone desires to use for a funeral home, testified that he owns two lots between lot 692 and Forest avenue, and that his mother lives on the westerly side next door to the house now owned by the Springs. Norman E. White, of 593 Pontiac avenue, stated that he had owned his house for eight years and objected to the funeral home because the section is residential. Mrs. Vernon P. Kenyon testified that she and her husband owned the premises at 579 Pontiac avenue; that they had lived there for eighteen years; that she did not like the idea of a funeral home so close by; and that she also objected because of the parking problem and depreciation of property.
Mrs. Ethel Kilstrom stated that she was a widow and had lived at 583 Pontiac avenue for thirty-two years, and that she objected because of the loss of privacy, loss of parking facilities and depreciation of property. Mr. Louis Iannuccilo testified that he owned the house he lived in at 652 Pontiac avenue and that he also owned the house numbered 691 Pontiac avenue; that he objected to the funeral home because it was a residential section; that such a home was an undesirable business in a residential section; that no one likes to live in the neighborhood of a funeral home; and that such a home depreciates property. Several other persons, some owners and some tenants, stated that they were opposed to the funeral home.
The board took a view of the premises described in the application and later gave a decision in writing granting the application with certain limitations and conditions. They found that the exception as granted would serve the public convenience and welfare, would not substantially or permanently injure the appropriate use of neighboring property, would be in harmony with the character of the neighborhood and appropriate to the uses or buildings authorized in that district, and that the granting of the exception was necessary to secure an appropriate development of the lot in question.
The application for an exception was made under the provisions of chapter 31, section 27 B 8, B 9 and C of the zoning ordinance. At the beginning of the hearing before the board the applicants withdrew any right which they might have under section 27 C.
Section 27 B provides in substance that where public convenience and welfare will be substantially served and the appropriate use of neighboring property will not be substantially or permanently injured the board of review may authorize special exceptions as follows:
*129 "(8) In any district any use or building deemed by the board of review to be in harmony with the character of the neighborhood and appropriate to the uses or buildings authorized in such district;
"(9) In any district, such modification of the requirements of this chapter as the board may deem necessary to secure an appropriate development of a lot where adjacent to such lot there are buildings that do not conform to the provisions and regulations of this chapter."
The board made certain findings as already stated. The question for this court is: Are these findings reasonably supported by the evidence? In our opinion they are not.
The property in question is almost in the center of a portion of Pontiac avenue, approximately 800 feet in length, which is predominantly residential in character. It cannot reasonably be said in the circumstances here that public convenience requires a funeral home at the location which Mr. Gattone desires, since there now is such a home on Pontiac avenue about 1,000 feet westerly.
On the question of the effect of a funeral home upon property valuations, the experts differed. Robert Lister, who testified for the petitioners, expressed the opinion that the funeral home if permitted would tend to depreciate surrounding property particularly abutting property. Nicholas J. Caldarone thought otherwise. He appeared to base his opinion in part on the fact that there was a nonconforming use in the rear and westerly of the Spring property. He also thought that the business situation was "tight," as he expressed it, on Rolfe street and business must of necessity move easterly on Pontiac avenue. The residents in the immediate neighborhood of the proposed funeral home, while not real estate experts, were of the opinion that if permitted it would depreciate their properties.
The section of Pontiac avenue under consideration is not zoned for business. A funeral home which is a business use may be permitted there only if allowed by the board of review. In considering the instant case reference may well be made to what this court said in Harte v. Zoning Board of Review, 80 R.I. 43, at page 52, 91 A.2d 33, at page 37: "As we have stated previously, the power to grant exceptions is broad but its exercise by the board is not without some limitation. That power was intended to be used sparingly in exceptional cases to prevent placing on the property unnecessary burdens which would in effect deprive an owner of the reasonable and beneficial use of his property and to provide a flexibility in exceptional cases that would protect the owner against arbitrary effects that might follow from a literal enforcement of the terms thereof."
In the instant case Mr. and Mrs. Spring remodelled their house by converting it into four apartments all of which were rented at the time of the hearing before the board. It is reasonably inferable from the evidence that a sale to Mr. Gattone would be highly beneficial from a monetary point of view. Certainly their desire to sell is not open to criticism unless such sale would be to the disadvantage of the community.
The situation here is somewhat different from that revealed by a reading of Messinger v. Zoning Board of Review, 81 R.I. 159, 99 A.2d 865. In that case the house which was desired for a funeral home was in a residence A district but was outmoded as a single-family dwelling because of its size.
Basically as shown by the record the only persons aided by the decision of the board are the applicants. We are of the opinion that the evidence clearly indicates that the exception as granted would not serve the public convenience and welfare, would substantially injure the appropriate use of neighboring properties, is not *130 required to secure an appropriate development of the lot in question, and is therefore an abuse of discretion.
The petition for certiorari is granted, the decision of the respondent board is quashed, and the records in the case which have been certified to this court are ordered sent back to the board with our decision endorsed thereon.
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475 S.W.2d 808 (1972)
PAN AMERICAN NATIONAL BANK, Appellant,
v.
Joe RIDGWAY, Appellee.
No. 15046.
Court of Civil Appeals of Texas, San Antonio.
January 12, 1972.
Rehearing Denied January 26, 1972.
Brenan & Brenan, San Antonio, for appellant.
Gray, Gardner, Robison & Cobb, San Antonio, for appellee.
KLINGEMAN, Justice.
Appellee, Joe Ridgway, filed a garnishment suit against Pan American National Bank, appellant herein [hereinafter referred to as garnishee], based upon an unsatisfied judgment in favor of appellee against Robert W. Meadows [hereinafter called defendant] in the amount of $6,812.30. Garnishee timely filed its answer admitting that it was indebteded to defendant Meadows in the sum of $1,547.48, and asked for recovery of $250.00 attorney's fees as reasonable costs. Such answer was not controverted. Appellee filed a motion for judgment asserting that there were no disputed fact issues. Upon a hearing of such cause, judgment was rendered in favor of appellee against garnishee for the sum of $1,547.48, together with interest from date of judgment until paid at the rate of 6% per annum, and all costs of court. In such judgment, the court held that the garnishee is not entitled as a matter of law to recover its costs in the proceeding.
Garnishee's sole point of error is that the trial court erred in holding that it should pay the court costs and the attorneys' fees incurred by it in the garnishment action.
The provisions for the payment of costs in garnishment suits are set forth in Rule 677, Texas Rules of Civil Procedure, which provides: "Where the garnishee is discharged upon his answer, the costs of the proceeding, including a reasonable compensation to the garnishee, shall be taxed against the plaintiff; where the answer of the garnishee has not been controverted and the garnishee is held thereon, such costs shall be taxed against the defendant and included in the execution provided for in this section; where the answer is contested, the costs shall abide the issue of such contest." (Emphasis supplied).
There are many Texas cases holding that the reasonable compensation to which the garnishee is entitled includes reasonable *809 attorneys' fees. In Johnson & Co. v. Blanks, 68 Tex. 495, 4 S.W. 557, 558 (Tex.1887), the Court said: "By compensation is meant a sufficient sum to remunerate the garnishee for expenses necessarily incurred in protecting his interest in the proceeding. That reasonable attorney's fees is a necessary expense in every case we have no doubt .... Whatever else it may include, we are clearly of the opinion that the statute was intended to cover a reasonable fee to the garnishee for the services of an attorney in assisting him in the proceeding." See also: Carter Bros. & Co. v. Bush, 79 Tex. 29, 15 S.W. 167 (Tex.1890); Curtis v. Ford, 78 Tex. 262, 14 S.W. 614 (Tex.1890); Willis & Bro. v. Heath, 75 Tex. 124, 12 S.W. 971 (Tex. 1889); Moody v. Carroll, 71 Tex. 143, 8 S.W. 510 (Tex.1888); Hanson v. Guardian Trust Co., 150 S.W.2d 465 (Tex.Civ.App. Galveston 1941, writ dism'd); May v. Donalson, 141 S.W.2d 702 (Tex.Civ.App. San Antonio 1940, no writ); Dallas Packing Company v. Kimberling, 289 S.W. 149 (Tex.Civ.App.Austin 1926, writ ref'd); Reed v. First State Bank, 211 S.W. 333 (Tex.Civ.App.Dallas 1919, no writ); 27 Tex.Jur.2d, Garnishment, Section 125.
This Court in May v. Donalson, supra, said: "The costs incurred by the plaintiff in the garnishment proceeding include the garnishee's attorneys' fees, and the plaintiff may be called upon to pay this amount in the event it can not be collected from the defendant, and this is true even though all of the costs are adjudged against the defendant. In this respect, attorneys' fees are comparable to the fee of a guardian ad litem and the same rules will be applied. Ashe v. Youngst, 68 Tex. 123, 3 S.W. 454."[1] 141 S.W.2d at 707.
By the clear provisions of Rule 677, supra, the costs should have been taxed against defendant, and the court erred in not doing so. Such costs under the authorities herein cited include reasonable attorneys' fees incurred by the garnishee.
Garnishee asks that that we reform the judgment of the trial court so that garnishee be awarded court costs, including reasonable attorneys' fees of $250.00. It asserts that since the defendant has been adjudged insolvent, the judgment should provide that execution may issue against appellee for the garnishee's costs. There is nothing in the record pertaining to the matter of insolvency of the defendant,[2] nor is there any proof in the record of the reasonableness of the attorneys' fees.
The judgment of the trial court is reversed and remanded to the trial court.
NOTES
[1] This case was tried when Article 4100, Tex.Rev.Civ.St. (1925) was in force and effect, but such statute is identical in wording to Rule 677, T.R.C.P. Another case construing Article 4100 is Dallas Packing Company v. Kimberling, supra, in which case plaintiff Kimberling was a holder of a judgment for $2,563.49 against Dallas Packing Company. A writ of garnishment was issued to the American Exchange National Bank of Dallas pending suit, who answered that it owed defendant Dallas Packing Company $300.00 and asked for $200.00 attorneys' fees for answering the writ. The trial court rendered judgment against the garnishee bank for $300.00 out of which costs, including attorney's fees in the amount of $25.00, were to be first paid. The appellate court affirmed the judgment of the trial court, and with regard to attorneys' fees said: "In further reference to the attorney's fee claim, article 4100, R.S.1925, provides that where garnishee's answer has not been controverted and garnishee is held thereon, garnishee shall be entitled to recover against defendant all costs, including a reasonable attorney's fee. Costs and attorney's fees are therefore matters of statutory right, the amounts of which are fixed, except that the attorney's fee must be reasonable." 289 S.W. at 151.
[2] The record shows that defendant had on deposit with garnishee the sum of $1,547.48 at the time the writ of garnishment was served. In the usual case, the costs, including reasonable attorneys' fees, would first be taken from such sum with the balance thereof paid to plaintiff.
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475 S.W.2d 259 (1971)
Rickey Joe WITT, Appellant,
v.
The STATE of Texas, Appellee.
No. 44376.
Court of Criminal Appeals of Texas.
December 7, 1971.
Rehearing Denied February 2, 1972.
*260 Gibson, Ochsner, Adkins, Harlan & Hankins, by Michael C. Musick, Amarillo, for appellant.
George E. Dowlen, Dist. Atty., Canyon, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from a conviction for the sale of marihuana. The punishment was assessed by the jury at fifteen years.
Policewoman Cox testified she started attending school in Randall County, in September 1969, in connection with an undercover operation; that she first met appellant on October 13th at a drive-in on the Canyon Expressway where a conversation took place about the purchase of drugs and that appellant and one Gary Morris told her that there were better contacts to buy drugs from than the people she had been around; that the next evening, she returned to the drive-in where the appellant and Morris approached her and asked if she wanted to buy some marihuana, and that she purchased a "lid" of marihuana for twenty dollars from appellant.
Appellant contends that he was denied the right to counsel at critical stages throughout the entire period during which he was arrested or detained. Appellant was arrested in Anaheim, California, on January 17, 1970, waived extradition proceedings, and ten days later was returned to Randall County.
Appellant complains that he was not informed of his right to counsel prior to signing of a waiver of extradition proceedings. This court held in Hinkle v. State, 442 S.W.2d 728, that an illegal removal of defendant across state lines does not afford defendant immunity from prosecution. See also Goodspeed v. Beto, 341 F.2d 908 (5 Cir.), cert. den., 386 U.S. 926, 87 S. Ct. 867, 17 L. Ed. 2d 798 (1965), where the court held any illegality in extradition proceeding would not invalidate subsequent conviction.
Appellant further complains of the court's failure to furnish him counsel after his return to Texas in that during this time, when he did not have counsel, he could have started preparing his defense and contacting witnesses who could prove and corroborate his defense of alibi. The appellant's testimony reflects that he was brought before the court upon his return to Texas, and appellant advised the court that he would like to hire his own attorney; that when appellant was unable to hire an *261 attorney, the court appointed counsel requested by appellant. The docket sheet reflects appellant was represented by counsel on February 2, 1970, and the trial did not begin until August 14, 1970.
We reject appellant's contention that he was denied counsel at the critical stage of the proceedings.
Appellant complains that his counsel in the trial court was inadequate to provide for the fundamental fairness which should have been afforded him under the Sixth and Fourteenth Amendments to the U. S. Constitution. We have reviewed the numerous instances cited by appellant in the course of the trial where he claims counsel was ineffective. These complaints have been examined in light of what the court said in Williams v. Beto, 354 F.2d 698 (5th Cir.): "as no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight." Further, the adequacy of an attorney's services on behalf of the accused must be gauged by the totality of the representation. Baker v. State, 204 Kan. 607, 464 P.2d 212; Satillan v. State, Tex.Cr.App., 470 S.W.2d 677. We conclude that the record reflects appellant had adequate representation in the trial court.
Appellant complains of the court admitting into evidence the marihuana, two letters written by the appellant and the character testimony of Witnesses Bowes and Johnston. Officer Cox testified she put the marihuana in an envelope the night she obtained it, placed the envelope in her kitchen cabinet where it remained until 7:30 P.M. the next day, when she delivered it to Officer Smith, of the Amarillo Police Department, who testified he initialed it and delivered same to Chemist Dunn. Witness Dunn testified he received the substance from Officer Smith and that he ran a test on it and found the substance to be marihuana. Appellant contends that since Officer Cox did not have a lock on her cabinet, other members of her family had access to it. In Wright v. State, 420 S.W.2d 411, where marihuana cigarettes had been left on top of the chemist's desk for three weeks and other people had access to them, this court held absent a showing that the exhibits had been tampered with, appellant's objection went to the weight rather than the admissibility of the evidence. See also Walker v. State, Tex. Cr.App., 470 S.W.2d 669.
Appellant complains that no methods were used to insure that the envelope containing the marihuana could not have been opened. Like appellant's last contention, the objection goes to the weight rather than the admissibility of the evidence, since there is no showing that the exhibit had been tampered with.
Appellant complains of the court allowing the state to introduce into evidence two letters written by appellant. The letters were introduced in the course of state's cross-examination of appellant. When the state offered the letters, counsel for appellant stated to the court, "No objection" and "We have no objections, Your Honor." There being no objection to the offer of the letters, nothing is presented for review. Parsley v. State, Tex.Cr.App., 453 S.W.2d 475; Garcia v. State, Tex.Cr.App., 428 S.W.2d 334.
Appellant complains that Witnesses Bowes and Johnston were allowed to testify at the penalty stage of the trial that his reputation for being a peaceful and law abiding citizen was bad when they had known him only since he was arrested for the alleged offense herein. Bowes and Johnson testified that they had known of appellant for a longer period of time than they had known him personally. There is nothing to show that the testimony complained of was based solely upon the sale *262 of marihuana charge so as to render the testimony inadmissible. Pogue v. State, Tex.Cr.App., 474 S.W.2d 492 (1971); Frison and Watts v. State, 473 S.W.2d 479 (1971).
The appellant complains that the jury argument of the state was improper. The record reflects that the only objection appellant made to jury argument was sustained; no request was made for the court to instruct the jury to disregard the remarks and no motion for a mistrial was made.
The appellant complains for the first time on appeal of numerous remarks made by the state in its argument. No objection having been made in the trial court, nothing is presented for review. Garcia v. State, Tex.Cr.App., 428 S.W.2d 334.
Appellant contends the punishment was too harsh in view of the appellant's age, no prior felony record, appellant's intention to go to college and the many errors committed during the trial. This court has held that the penalty for sale of marihuana is not unconstitutional on the theory that punishment was cruelly excessive in relationship to offense and fails to satisfy equal protection standards required in statutory classification. Johnson v. State, 447 S.W.2d 927; Martinez v. State, 373 S.W.2d 246. The penalty range under Art. 725b, Vernon's Ann.P.C., for sale of marihuana, is by confinement in the penitentiary for not less than five years nor more than life. In Darden v. State, 430 S.W.2d 494, this court said "If the punishment is within that prescribed by the statute, it is beyond the province of this Court to pass upon the question of excessive punishment." See also Sills v. State, Tex.Cr. App., 472 S.W.2d 119 (1971).
Finding no reversible error, the judgment is affirmed.
Opinion approved by the Court.
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475 S.W.2d 610 (1971)
Delma Olephia Manson MILLER, et vir, Frank J. Miller, Appellants,
v.
TWO INVESTORS, INC., Appellee.
No. 17745.
Court of Civil Appeals of Texas, Dallas.
December 30, 1971.
Rehearing Denied January 14, 1972.
*611 Esir Tobolowsky, Dallas, for appellants.
Hal Potts, Fanning & Harper, Dallas, for appellee.
GUITTARD, Justice.
The question is whether a divorced father's community interest in a house and lot, which was occupied by his former wife under the terms of a divorce decree until the youngest child reached the age therein specified, may be charged in a subsequent partition suit with taxes paid by her during her occupancy and also with the amount of his past due child support payments. We hold that his interest cannot be so charged.
The facts are stipulated. Homer Manson and defendant Delma Manson, now Mrs. Miller, were divorced on August 3, 1953. The decree awarded Delma the exclusive right to occupy the property and use all rents and revenues from it until the youngest child should reach twenty-one years of age on February 17, 1968. Delma occupied the property continuously after the divorce, and during the period up to February 17, 1968 she paid $994.43 in taxes. On that date the total amount of child support payments past due was $8,930. On July 14, 1969 Manson conveyed his interest to a trustee. The trustee conveyed to plaintiff Two Investors, Inc., who brought this suit for partition. The trial court found that the property was not susceptible of division in kind and ordered it sold and the proceeds divided. The court denied Mrs. Miller any allowance in that division for the taxes paid or for the past due child support payments.
By her first point appellant contends that she is entitled to reimbursement for the taxes she paid, or at least to half of such taxes, because they were a lien on the property and her payments protected Manson's interest as well as her own. She relies on our opinion in Gilleland v. Meadows, 351 S.W.2d 656 (Tex.Civ.App., Dallas 1961, no writ). After examination of that opinion and the briefs on that appeal, we conclude that it is not controlling on the question now before us. In that case the divorced wife had occupied the property for ten years after the divorce, but her *612 exclusive right to do so had terminated on her remarriage after seven years. In a subsequent partition suit, she claimed reimbursement for mortgage payments, taxes, insurance and improvements on the property during the entire ten years without any offset for the reasonable rental value of the property during her occupancy. The court sustained the former husband's contention that she was not entitled to such reimbursement without allowing an offset for the value of the use of the property after termination of her exclusive right of occupancy. No point was raised as to whether she had sole responsibility for taxes, as distinguished from mortgage payments and improvements, paid during her period of exclusive occupancy, and that question was not discussed.
We hold that one who has the right under a divorce decree to exclusive occupany of property and to enjoyment of the rents and revenues from it has the obligation to pay the taxes, unless the decree otherwise directs. This holding is supported by cases in which the divorced wife's exclusive right of occupancy under the divorce decree amounted to a life estate. Berg v. Berg, 232 S.W.2d 783 (Tex. Civ.App., Dallas 1950, no writ); Sims v. Sims, 62 S.W.2d 495 (Tex.Civ.App., Galveston 1933, writ dism'd). Her right of occupancy is analogous to the right of a surviving spouse to exclusive occupancy of the homestead. In that situation equity and good conscience have been held to require that the person entitled to the enjoyment and revenues of the property should also be responsible for current taxes. Sargeant v. Sargeant, 118 Tex. 343, 15 S.W.2d 589 (1929). Without deciding whether the former wife's right of occupancy here was equivalent to a life estate, we hold that the equity and good conscience likewise require her to assume the burden of the taxes.
In her second point appellant contends that her former husband's interest in the property is chargeable with his past due child support payments. She insists that in a partition suit the court has broad powers to adjust all equities between the parties. No authority is cited to support her claim that child support payments may be considered among these equities. A parent's obligation to make the child support payments ordered in a divorce decree is imposed for the benefit of the minor children and is enforceable only by contempt under Tex.Rev.Civ.Stat.Ann., art. 4639a (Supp.1971). It is not a debt to the other parent which can be reduced to judgment and enforced by execution or garnishment. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957); Thompson v. Thompson, 371 S.W.2d 572 (Tex.Civ.App., Fort Worth 1963, no writ). Consequently, it is not a claim which can be enforced by adjustment of equities in a partition suit.
Although appellant may have a cause of action against her former husband for her expenditures for the children's necessaries which he has failed to provide, Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921), no such cause of action was pleaded or proved here.
Affirmed.
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475 S.W.2d 134 (1971)
Patricia A. WEBB, Plaintiff-Appellant,
v.
James J. WEBB, Defendant-Respondent.
No. 33934.
St. Louis Court of Appeals, Missouri.
December 23, 1971.
Richard P. Nangle, St. Louis, for plaintiff-appellant.
Aubuchon & Walsh, Eugene P. Walsh, St. Louis, for defendant-respondent.
JAMES RUDDY, Special Judge.
This appeal arises from an Order of the Circuit Court sustaining Respondent's Motion to Quash or Set Aside a Writ of Sequestration issued on a judgment for child support in the amount of Three *135 Hundred Dollars ($300.00). It was submitted to this Court on an agreed statement of facts.
On January 2, 1967, Appellant, Patricia A. Webb, obtained a divorce from Respondent, James J. Webb. Appellant was granted custody of the minor children of the parties; namely, William, Susan and Stephen. Under the terms of the decree Respondent was ordered to pay to Appellant the sum of $40.00 per month for the support of William, and the sum of $30.00 per month each for the support of Susan and Stephen.
Respondent made payments to the Appellant in the amount of $100.00 per month from January of 1967 through January of 1970.
William, the oldest of the minor children, became twenty-one (21) years of age on January 11, 1969. Therefore, Respondent's obligation to support him ceased by operation of law on said date. However, Respondent continued to pay Appellant the sum of $100.00 per month after January 11, 1969 and through January of 1970, when he ceased making child support payments altogether. Thereafter, an execution was issued on said decree and returned unsatisfied. Subsequently, the Writ of Sequestration was issued and served on the Treasurer of the City of St. Louis, levying on all wages of Respondent, since Respondent was employed as a fireman for the City of St. Louis. Appellant's affidavit alleged an amount of Three Hundred Dollars ($300.00) as being due and owing. However, by agreement of the parties, this amount should have been One Hundred and Eighty Dollars ($180.00).
At the hearing on the Motion to Quash the Writ of Sequestration Respondent testified that there had been very little communication between him and Appellant since the decree of divorce and that there had been no agreements or arrangements between them concerning the method of or manner of making the child support payments.
Respondent claims credit for $480.00, representing the additional $40.00 per month paid by him after William became twenty-one from January of 1969 through January of 1970. He further contends that this amount constitutes advance payments under which he was to pay Appellant the sum of $60.00 per month for the support of Susan and Stephen.
Appellant contends that there was no agreement or contract between them modifying the divorce decree and that the excess payments constitute voluntary payments by the Respondent.
On June 25, 1970, the Circuit Court entered an Order sustaining Respondent's Motion to Quash or Set Aside the Writ of Sequestration.
We cannot agree with the action of the trial court in sustaining the Motion to Quash or Set Aside the Writ of Sequestration. Strict compliance with the terms of the divorce decree should be adhered to by all parties, absent any agreement to the contrary. There was no agreement between the parties here other than that specified in the divorce decree. From all appearances, there was no communication between the parties during the alleged period of overpayment from January of 1969 to January of 1970. It further appears that the overpayments were a voluntary payment by Respondent of $40.00 per month over and above that which he was required to pay under the terms of the divorce decree. He cannot now be heard to say that the voluntary overpayments should be credited to future child support payments of Susan and Stephen.
Missouri law would allow a credit under proper and equitable circumstances, M____ v. M____, Mo.App., 313 S.W.2d 209. Whether or not the father is entitled to credit on the arrears of a child support judgment for payments made on behalf of the child depends on the circumstances under which the payments are made. M____ v. M____, supra. "A father who makes overpayments for several *136 months because of his erroneous interpretation or recollection of the terms of a contract for child support which was approved by the divorce court is not entitled to recoup his overpayments by paying lesser sums in the future and claiming a setoff." 24 Am.Jur.2nd, Sec. 872, p. 993. In the instant case, there is no evidence of any mistake or misunderstanding on the part of either party. The overpayment can be interpreted as nothing more than a voluntary payment on the part of the Respondent. Therefore, it is clear that he should not be allowed to claim credit on future child support payments for voluntary overpayments in the past. "Decrees for child support should be strictly complied with and credit should not be allowed for overpayments voluntarily made." Wills v. Glunts, 222 Ga. 647, 151 S.E.2d 760, l.c. 762[2].
Appellant further asks that this Court award her a reasonable sum for her attorney's fee and expense in prosecuting this appeal. This Court has no jurisdiction to make such award. Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40, l.c. 45 [10]. The only court which can make an Order on the husband to pay the wife's costs and attorney's fees incident to the prosecution of an appeal in a divorce action is the Circuit Court, and this is true whether the case be pending in the Circuit Court or the Appellate Court. McCormack v. McCormack, Mo.App., 238 S.W.2d 858, l.c. 864[13]. Therefore, Appellant's request for an allowance of attorney's fees and expenses on appeal is denied.
For the reasons stated herein, it is the Order of this Court that this cause be remanded to the Circuit Court and that the Order of the Circuit Court sustaining the Motion to Quash or Set Aside the Writ of Sequestration is hereby set aside and the Writ of Sequestration in the amount of One Hundred and Eighty Dollars ($180.00) is hereby reinstated with the right to levy thereon.
BRADY, P. J., and WOLFE, J., concur.
DOWD, J., not participating.
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475 S.W.2d 677 (1972)
Milton G. ROBINSON and William C. Daviss, Appellants,
v.
Lucille K. CHAMPION, Appellee.
No. 5-5627.
Supreme Court of Arkansas.
January 24, 1972.
Milton G. Robinson, and William C. Daviss, Stuttgart, for appellants.
Theodore L. Lamb, Little Rock, for appellee.
FOGLEMAN, Justice.
This appeal involves a decree rendered in a suit by appellee to recover alleged excessive attorneys' fees paid appellants as her attorneys in a divorce case. The court rendered judgment against each of the appellants in the sum of $7,250. The present action was filed nearly three years after the termination of the employment. She alleged that appellant Daviss had been paid $5,700 by her husband pursuant to court order, $7,250 by a receiver appointed in the *678 divorce case pursuant to court order and $15,575 she paid him. She alleged that appellant Robinson had been paid the same amounts except that the amount paid by her former husband under court order was only $5,600. She contended that the fees exacted from her were excessive and that she had paid them because of undue influence of the appellants and their overreaching and imposition on the attorney-client relationship. The conduct upon which she relied was the alleged representation by the attorneys to her that she was required to make these payments in order to receive property distributions of $40,000 in March 1966 and $80,000 in October 1966. She paid appellants $5,000 each in March 1966 and $10,000 each in October 1966.
Appellants not only resisted appellee's claim but filed a counterclaim in which they alleged that they were entitled to additional fees of $12,500. There is no issue presently involved as to the amounts of compensation charged against the defendant in the divorce case, Dr. Walton T. Champion.
Among the pertinent considerations in determining the reasonableness of attorney's fees not specifically fixed by contract, as is the case here, are: the attorney's judgment, learning, ability, skill, experience, professional standing and advice, Bockman v. Rorex, 212 Ark. 948, 208 S.W.2d 991; St. Louis-San Francisco Ry. Co. v. Hurst, 198 Ark. 546, 129 S.W.2d 970, 122 A.L.R. 965; Rachels v. Garrett, 153 Ark. 343, 240 S.W. 1071; Turner v. Turner, 219 Ark. 259, 243 S.W.2d 22; the relationship between the parties, Rachels v. Garrett, supra; the amount or importance of the subject matter of the case, Rachels v. Garrett, supra; St. Louis-San Francisco Ry. Co. v. Hurst, supra; Turner v. Turner, supra; the nature, extent and difficulty of services in research, collection, estimation and mental array of evidence and anticipation of defenses and means of meeting them, and considering the case, receiving confidential information and giving confidential advice before any pleadings are filed or other visible step is taken, St. Louis-San Francisco Ry. Co. v. Hurst, supra; Bockman v. Rorex, supra; Files v. Fuller, 44 Ark. 273; the preparation of pleadings, Files v. Fuller, supra; the proceedings actually taken and the nature and extent of the litigation, Rachels v. Garrett, supra; St. Louis-San Francisco Ry. Co. v. Hurst, supra; the time and labor devoted to the client's cause, St. Louis-San Francisco Ry. Co. v. Hurst, supra; Rachels v. Garrett, supra; Turner v. Turner, supra; the difficulties presented in the course of the litigation, St. Louis-San Francisco Ry. Co. v. Hurst, supra; the results obtained, Turner v. Turner, supra; St. Louis-San Francisco Ry. Co. v. Hurst, supra; Bradshaw v. Bank of Little Rock, 76 Ark. 501, 89 S.W. 316; and many other factors beside the time visibly employed, St. Louis-San Francisco Ry. Co. v. Hurst, supra; Bockman v. Rorex, supra. In making these determinations, both the trial court's and this court's own experience and knowledge of the character of such services may be used as a guide. Rachels v. Garrett, supra; Aetna Life Ins. Co. v. Heiden, 184 Ark. 291, 42 S.W.2d 392; Whetstone v. Travis, 223 Ark. 856, 269 S.W.2d 320. Considerable weight is to be given to the opinion of the judge before whom the proceedings are conducted. Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965; Whetstone v. Travis, supra. When we give due consideration to the extensive record before us and to the factors to be considered we find that the fees allowed and paid to appellants were adequate for the services they performed, but that they were not excessive or unreasonable and that appellee is not entitled to recover any of the fees paid to them. Consequently the decree of the chancellor is reversed.
The voluminous record in the divorce case and in the incidental receivership was made a part of the record in this proceeding and was considered by the chancellor who heard this case on assignment, who *679 was not the same chancellor who had heard all of the proceedings in the divorce case and the receivership.
The parties to the divorce case were both medical doctors practicing in Stuttgart. They were first separated sometime in 1958 when a divorce suit was filed by appellee in which she was represented by appellant Robinson. A reconciliation was effected, and they lived together until June 1, 1961. Appellee first employed appellant Daviss in February or March, 1962. He arranged a temporary agreement about child custody and visitation and testified that he spent considerable time in trying to effect a reconciliation, in accordance with his client's wishes. Daviss testified that he spent many hours and held many conferences before he terminated his attempts on May 9, 1962, and filed a suit for divorce.
Daviss said that, after attorney Virgil Moncrief filed an answer for Dr. Walton Champion, he spent many hours conferring with this attorney before determining that the suit would have to be tried. At this point Dr. Walton Champion employed Mr. George E. Pike who represented him throughout the further proceedings in the case. Appellee said that she was then afraid that she was going to lose the case, so she employed the appellant Robinson in August 1962 with the approval of Daviss.
According to Chancellor Dawson before whom the case was tried, the trial consumed 10 days, which were not consecutive but ranged from September 12 to November 1. At the time of the filing of the divorce suit, appellee alleged that her husband had contributed nothing to her support or that of their four young children since the separation except for payment of utility bills and maturing installments on the mortgage on the family residence which she and the children were occupying. The first step in the proceedings was a hearing which resulted in appellee being awarded custody of the minor children, possession of the family residence, $300 per month for support of herself and the children and $100 attorneys' fees, all pendente lite.
After the trial, the chancery court found that appellee was entitled to a divorce, although she was not without fault, reaffirmed the award of child custody and possession of the residence along with the household furnishings and equipment, allowed an additional $1,200 to apply on her attorneys' fees, awarded $350 per month for child support, out of which she was to pay the maturing family residence mortgage installments, awarded her one-third of Dr. Champion's personal property, one-third of his real estate for life, dissolved an estate by the entirety in rental residential property owned by the parties, required the husband to account for all property disposed of by him since the beginning of the action, enjoined him from disposing of or encumbering any property and appointed a commissioner to sell all of the defendant's real and personal property if the parties had not reached an acceptable agreement on the property distribution within 90 days of September 1, 1963. All costs were assessed against the husband. The entry of a formal decree was withheld until April of 1963, apparently with the approval of the court, while unsuccessful negotiations to arrive at a settlement on the distribution of property were being conducted by appellants and attorney Pike.
There can be no doubt that the divorce proceeding was acrimoniously contested and many charges and countercharges of infidelity and indiscreet conduct were aired, along with other bitter complaints. The parties also seemed to have constantly bickered over the children's visitation with their father, his tardiness in returning them to the mother's custody and their resulting absence from school. The husband unsuccessfully appealed to this court. See Champion v. Champion, 238 Ark. 87, 378 S.W.2d 648, decided May 11, 1964. Although the appeal seemed to be general, when the appellant's brief was filed here, he only asserted error in that part of the decree ordering a sale of the property. *680 Meanwhile, he had applied to the chancery court for relief, asserting that he could not pay child support until the property division was accomplished, and that he could not conduct farming operations on the lands owned by him unless the appellee signed a $70,000 mortgage. When the court would not compel her to do so, the parties filed a joint petition asking for the appointment of a receiver for the defendant's property alleging that there was danger of losing about 3,000 acres of farmland by foreclosure of a $130,000 mortgage.
The court appointed John Gunnell, the clerk of the court, as receiver, finding that the equities of both the parties and their children in approximately 4,000 acres of land in Lee, Arkansas, Monroe and Prairie Counties, the homestead and residential rental property in Stuttgart were in imminent danger unless the farm operation loan could be secured.
Subsequently, but still during the pendency of his appeal, Dr. Walton Champion applied to the chancery court for a modification of its decree, alleging that his request for the appointment of a receiver was necessitated by appellee's failure to sign mortgages for loans to him to produce crops in 1963 and that he was unable to make a property division because of the large amount of indebtedness against the property. This petition was denied when heard. There was a reduction in the indebtedness in 1963, and the receivership was continued in 1964 and 1965 upon joint petition of the parties. During the course of the receivership it developed that Dr. Walton Champion had entered into leases with his tenants after the court's decision in the divorce case was rendered but before the decree was actually entered and the receiver appointed. The term of these leases extended to December 31, 1966. When contention arose with reference to the propriety of these leases, the tenants intervened, but the matter was finally settled by stipulation that the contracts be terminated on December 31, 1965, and the tenants were given 30 days within which to submit offers for the purchase of the Lee County lands, and the leases were ultimately canceled by the court.
Appellee had some assets and had some income from the practice of medicine over the years, and will have income in the future. She was earning about $20,000 per year at the time of this trial. She owned a residential rental house on which there was a mortgage debt of approximately $2,800 payable in monthly installments of $47.50 and from which she had rental income of $55 per month. Although she admitted that her husband had given her $9,000 from the proceeds of sale of a farm in 1958, she said that she only had $200 in a savings account and $100 in a checking account. Her husband claimed that she had several thousand dollars hidden at home.
During the course of the trial there was introduced on behalf of appellants a financial statement prepared by Walton Champion dated April 18, 1962, showing assets of $967,628.86, liabilities of $216,143.87 and a net worth of $751,484.99. He claimed that he had "puffed up" the values in order to try to obtain a loan to pay debts and an IRS lien, and that he was on the verge of bankruptcy and unable to pay his bills. A federal IRS lien against both parties for some $6,000 or $7,000 had been filed. In a hearing regarding attorneys' fees to be paid by the receivership, attorney Pike testified that his client had been practically insolvent at the time. The defendant said that avoidance of bankruptcy and the welfare of the children were his reasons for contesting the divorce.
During the trial the husband produced testimony about the value of two farms the Buckhorn farm in Lee County and the Brummitt farm. He said that the operation of the Buckhorn farm had been unprofitable and that he had unsuccessfully attempted to operate the Brummitt farm as a duck hunting club. He produced witnesses as to the value of the lands. None of them placed a value on the Buckhorn farm as high as that placed by the *681 defendant himself which was $55 per acre or $117,150. He said that the first mortgage debt on this property was $130,000 plus $8,100 interest in addition to some debt of $6,500. The highest value placed on the Brummitt farm was $100 per acre or $60,800. An appraiser placed the value of the family residence, purchased for $15,000 in May 1946, at $25,000. It was subject to a mortgage balance of $12,000. His appraiser valued five or six lots in Stuttgart at $2,000, but the defendant said he had received an offer of $2,700 for them after he put them up for sale. His appraisal witness testified that the residential rental property was worth only $9,000. The rental income from it was $32.50 per week. Dr. Walton Champion said that he had no unmortgaged property and that the Forrest City Production Credit Association mortgage covered all real estate owned by him for an indebtedness of approximately $65,000. He said that he was paying $200 per month on a mortgage on his medical equipment. It appears that appellee was personally obligated on the real estate mortgages on the farms and the family residence. The defendant said that the income from the clinic was not sufficient for him to pay current bills after the divorce case was filed. He listed unsecured debts of more than $45,000. An agreed appraisal of various corporate stocks owned by him showed a total value of $3,792.50. This was also pledged to Forrest City Production Credit Association.
After the court directed the receiver to list the real property for sale in 1965, an offer of $685,000 was received for the Lee County land with the seller to pay a real estate commission of $30,000. The court directed the receiver to accept this offer. After the sale was closed the receiver's report showed that he held a balance of $485,554.66 from the sale of the property after the payment of all debts of the estate and the real estate commission.
A petition signed and verified by appellee was filed on February 18, 1966, asking that her attorneys be allowed additional fees. On March 7, 1966, the court ordered distribution of $40,000 to each of the Champions on their joint petition. On March 15, 1966, the court ordered $10,000 paid to each of appellants by the receiver as partial fees, reserving their allocation, as well as determination of total fees, until a later date, and specifying that no provision of its order was to be construed as any determination or limitation of attorneys' fees to be paid by appellee in addition to this allowance.
A further distribution of $130,000 to Dr. Walton Champion and $80,000 to Dr. Lucille Champion was ordered in October 1966, and the court directed that the disbursements to appellee be made payable to her and her attorneys. About this time, Mr. George E. Pike filed a petition for attorneys' fees for services to the receivership, reciting 470 hours of work in 59 items and 18 court appearances and numerous conferences pertaining to the receivership and land sale. Dr. Walton Champion approved the payment of additional fees to his own attorney, but resisted allowance of additional fees to appellants, alleging that fees of approximately $25,000 previously paid to them were in excess of the value of their services. He was represented at this hearing, not only by his regularly employed attorney, but by John Dale Thweatt and James M. Thweatt. Appellee filed a verified response in which she alleged that it was understood by all parties that attorneys for both plaintiff and defendant would keep abreast of receivership activities and that both parties had received considerable benefit from the resulting procedures which had entailed considerable work by all the attorneys, in excess of what would have been otherwise required. She asked that her attorneys be awarded a proper fee and agreed that a part be allocated to the receivership.
In his opinion, at the time the divorce was granted, the chancellor had recited that the trial was the longest divorce trial he had ever had, that it was rather involved, *682 that the evidence indicated such a bad financial condition that the defendant was unable to pay child support in accordance with the needs of the children, and that much time and effort had been expended by appellee's attorneys prior to the beginning of the trial. He stated that the amount of attorneys' fees allowed was not representative of the true and correct value of their services to appellee and that it was set upon consideration of the defendant's financial condition.
The chancellor who had heard all previous proceedings conducted a three-day hearing on the matter of attorneys' fees in the receivership, after which he allocated his previous allowances to charge one-half of the payment made by the receiver to each of the appellants to the receivership and the other one-half to Dr. Walton Champion, and allowed a fee of $12,000 to Pike to be charged as receivership expenses, in addition to $2,000 previously paid him. When appellee expressed dissatisfaction with the services of appellants during this hearing, the court permitted them to withdraw as her attorneys. In August 1967 the Champions asked approval of a settlement between them by joint petition. This settlement gave her fee title to two lots in Stuttgart, a plot of land 150 feet by 250 feet, the family residence, one-third of the Empire Life Insurance Company stock, all sums previously distributed to her and all personalty in her possession. Walton Champion received all assets in the hands of the receiver and all other property.
The agreement contained this recitation:
The charges made against each party directly or through the receivership by order of the Court respecting attorney fees, receivership fees and Court costs are ratified and confirmed by the parties so far as the same concern each of them.
He waived any interest in any amount appellee might recover from her attorneys for fees paid by her from her own funds. The joint petition also recited that:
* * * since the rendition of the divorce decree there have been almost innumerable hearings before the Court with respect to the handling of the defendant's property and with respect to disputes and controversies between the parties concerning their individual interests in said property, the operation of the farm lands constituting a part of said property, the proper allocation of income and expenses in connection with the farm operations, and the propriety of certain attorneys' fees, receivership fees, and as to which of the parties should be charged with same.
* * * there has been a dispute between the parties with regard to the distribution of the proceeds from the sale of the lands in Lee County and with respect to other funds and assets in the hands of the Receiver.
* * * there has been disagreement between the parties as to which party should be charged with certain disbursements made by the receiver and there has been general disagreement between the parties as to the distribution of charges between them for almost each and every disbursement made by the receiver since the inception of the receivership; that all such controversy between the parties has consisted of disputes not only with regard to the law and to the facts but also as to accounting.
At the commencement of this hearing, the chancellor commented that he had allowed a very "negligible" fee to appellee's attorneys considering the time spent, because of the impression that Walton Champion was insolvent. Later he commented that the allowance was "measly." He emphasized that he would not go into the matter of fees paid by appellee over and above the court awards. The chancellor who heard this suit on assignment found that there was a conflict of interest arising from the representation of the receiver by the attorneys representing the parties even *683 though done with full knowledge of the court. For this reason he held that it was only fair that Mrs. Champion receive the benefit of the fees that were allowed to her attorneys in the receivership, amounting to $7,250. He said he considered himself bound by the court's previous finding that these fees were reasonable. He found that a reasonable fee for the attorneys was $21,275 for appellant Daviss and $21,175 for appellant Robinson, which he arrived at by allowing $20 per hour for 751 ¼ hours, $3,750 for the trial work and $2,500 each for the appeal to the supreme court. The difference between the two allowances was attributed to a $100 allowance to Daviss for a hearing before Robinson was employed. Judgment was rendered against appellants for the exact amount of the fees previously allowed them for services to the receivership, as confirmed by the chancellor at the conclusion of his findings.
There can be no doubt that the representation of the receivership by the attorneys representing the parties in the divorce case was done with the full approval of the chancellor who heard the divorce case and appointed the receiver. While it would certainly be the better practice in most cases for a receiver to have independent counsel, there are cases, such as this, in which the intimate knowledge of the attorneys representing the parties in the case can be of benefit to all concerned. Representation of the receiver by appellee's attorneys did not in any way jeopardize her interests but probably was to her benefit. We have previously recognized that there are situations in which a practicing attorney may properly appear for more than a single client without being placed in the position of divided loyalty or exposed to the temptation to conciliate rather than vigorously espouse the rights of the clients he represents. We have recognized that this is the case in matters such as probate proceedings, corporate reorganizations, bills of interpleader, and litigation characterized as a free-for-all receivership. American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud, Inc., 237 Ark. 407, 373 S.W.2d 148.
Unfortunately, as pointed out by the chancellor, no records were kept by appellants in relation to their services, and their testimony in that regard had to be based upon recollection and estimates. Still, it seems to us that they justified the amount of fees paid to them. Appellee was relieved of personal liability on debts well in excess of $200,000. She received cash distributions of $120,000 and real estate valued at more than $25,000. It seems likely that, had she not entered into the settlement after withdrawal of the appellants, she would have received other property and funds which were then cleared of all indebtedness. When consideration is given to the fact that she was not found blameless and that her husband was considered to be insolvent at the time of the divorce, it seems that the results to her were as advantageous as anyone could possibly have dreamed. A forced sale of the property would have left little for either party. Avoidance of foreclosure was necessary.
Daviss estimated his pretrial work at 350 hours. During the period of the trial he estimated that he spent an additional 250 hours in preparation, conferences with witnesses, co-counsel and client and in research. Between the end of the trial and the entry of the decree, Daviss estimated that both he and Robinson spent 500 hours conferring with adversary counsel and their client and investigating the property, its value and susceptibility to division. Pike testified that there were numerous conferences among the attorneys and remarked that there were sometimes rather heated discussions. Daviss estimated that his time spent between the end of the trial and the entry of the decree averaged 20 hours per week. He said that he spent 50 hours working on the brief on appeal, but Robinson spent more time. It seems that Robinson and Daviss agreed that this would be a means of equalizing of time spent by the two attorneys after Daviss was first employed. Daviss estimated the *684 time spent after the entry of the decree at 2,100 hours of which he allotted 540 to the receivership.
Robinson testified that while the trial was in progress he spent at least half of his time on this case, and estimated that this amounted to a total of 250 hours. He said that he spent 100 hours on the appellate brief and estimated that after May 1, 1963, he had spent an average of 12 hours per week except for a four-week vacation period, or a total of 2,280 hours. Robinson stated that he spent almost his full time on the case from the time he was employed until the trial started. Since he had been employed after the case had been pending for some time, he thought that it was necessary that he review the case with Daviss and the client thoroughly and that he review his file in the previous case, interview witnesses and do research. He said that a conservative estimate of this time was 300 hours. He fixed his total time devoted to the matter, including services to the receiver, at 3,380 hours. He noted that the defendant had subpoenaed close to 100 witnesses, and said that he spent considerable time investigating to determine what their testimony would be. Some of these witnesses did not live in the community. He also said that he spent considerable time interviewing witnesses that his client brought to the office, most of whom either could not or would not be helpful in the case.
In considering the results we should not overlook the fact that child support of $350 per month had been paid in full at the time of the trial. This might not be significant except for the fact that all of the parties were convinced that Dr. Champion was unable to make the payments at the time of the divorce decree, and many delinquencies were enforced only when the appellants took steps to see that they were paid from funds in the hands of the receiver and charged to the defendant. Furthermore, it should be noted that, after the cash distributions were made, Walton Champion still owned the Brummitt farm, then appraised at $200 per acre, and 120 acres of land in Monroe County, both unencumbered. The last report of the receiver before the settlement made by the parties showed that he had on hand $131,969.24. Appellant Daviss testified that the settlement between the parties did not give appellee nearly what she was entitled to. While the propriety of the settlement is not in issue, it does seem that, after appellants withdrew, the settlement arrived at was certainly not more beneficial to appellee than it was to Walton Champion. Although there was no contract for any specific amount of compensation, and no one urges that compensation should be awarded on a contingency basis, certainly the availability of the remaining property for division is a matter to be considered in weighing the results obtained through the efforts of appellants.
It could well be that this litigation stemmed from a misunderstanding on the part of appellee, for which appellants may be partly to blame. In answers to interrogatories she stated that she felt that the results obtained by the attorneys should not have any bearing on their compensation. She also stated that she had received a considerable amount through the litigation, but felt that the attorneys were seeking compensation on a contingency basis, to which she objected. She had no idea how she came to be relieved of personal obligations on the mortgage debts. She could not remember signing many of the verified pleadings filed in her behalf. She made no protest about the payment of $5,000 each in March of 1966, probably because of the statements of the chancellor when the distribution was ordered. She did say that she thought the fees were high. While she said she told the attorneys that she thought they were awfully expensive when she paid them $10,000 each after the $80,000 distribution, she said she did not consider any other action and recalled that the chancellor had said that additional fees were not in the jurisdiction of the court. She attempted to minimize the time devoted to the case by the lawyers, but she offered no *685 real contradiction to their testimony except to say that she only saw them a total of 15 or 16 times, that they only put three or four witnesses on the stand in the trial of the case and that a hearing on her petition to remove the children to California for which she paid a fee of $500 took only about four hours. She said that at one time she voluntarily paid $100, and at another $50, to her attorneys because they were working "so hard."
Insofar as the services of the attorneys to the receivers are concerned, the one person in the best position to evaluate this compensation was the chancellor before whom the entire proceedings were conducted. We give considerable weight to his findings in that regard, and find the evidence amply supports the allowance. In this regard, it is notable that no one objects to the payments made to Pike.[1]
Appellants made court appearances and performed services for the receiver over and above those performed by Pike. For instance, they successfully contested a claim of Stuttgart Machine Works for more than $4,000 for improvements contracted for by Pike's client. They also performed services in connection with the collection of money by Walton Champion that should have gone into the receivership and with the claims of his lessees. They regularly reviewed the bills submitted to the receiver by Walton Champion through Pike, along with other bills, and Pike agreed with them that there was a great deal of contention about these bills. All these attorneys agreed that two days' preparation was required for each court appearance. Pike said that these appearances required from one hour to several hours. In addition, appellants spent a full day in closing the land sale by the receiver. The fee allowances for appellants' services to the receiver were proper and reasonable, and we see no reason for appellee to have credit for them.
Even though it would have been much more satisfactory if some records had been made from time to time as to the services rendered by appellants, we feel that a preponderance of the evidence indicates that the fees paid them were not unreasonable or excessive and that the judgment against them should be reversed. On the other hand, we cannot say that appellants have shown by a preponderance of the evidence that they are entitled to additional compensation, and the decree, insofar as this feature of the case is concerned, is affirmed.
GEORGE ROSE SMITH, J., dissents.
NOTES
[1] In considering the overall compensation, it should be noted that Pike accepted employment for a fixed fee of $3,000, and that the Thweatts were paid a retainer of $5,000 upon their late entry into the case.
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475 S.W.2d 380 (1972)
William H. ESCHRICH, Appellant,
v.
John Wesley WILLIAMSON et ux., Appellees.
No. 7313.
Court of Civil Appeals of Texas, Beaumont.
January 13, 1972.
Rehearing Denied January 27, 1972.
Anderson, Henley, Shields, Bradford & Pritchard, Dallas, for appellant.
Burt Barr, Dallas, for appellees.
DIES, Chief Justice.
Sandra Williamson, the natural mother of William Kevin Eschrich, a minor, filed a petition on April 29, 1971, to change the minor's name to Williamson, the name of her second husband. The petition was filed in the 162nd Judicial District Court of Dallas County. The petition was granted on April 30, 1971, and from this judgment the minor's natural father, William H. Eschrich, Jr., has appealed. Appellant states in his briefand since it is not denied by appellees we may take it as true under Rule 419, Texas Rules of Civil Procedure that on April 26, 1971, there was a trial in the Juvenile Court of Dallas County in which Sandra Williamson and her husband sought to have the minor adopted by her second husband, Williamson. Appellant further states in its briefnot denied by appelleesthat on April 27, 1971, this petition for adoption was denied.
The judgment changing the minor's name was obtained without notice to his natural father, appellant.
Art. 5929, Vernon's Ann.Civ.St., provides:
"Whenever it shall be to the interest of any minor to change his name, the guardian or next friend of said minor shall file his application in the district court of the county of said minor's residence, alleging the reason for the change *381 and giving the full name which the minor wishes to adopt. The judge of said court, if the facts alleged and proven satisfy him that such change will be for the benefit and interest of the minor shall grant authority to change his original name and adopt another."
Appellant complains as follows:
"The trial court erred in entering judgment in the case without notice to the father because this amounted to a denial of procedural due process, in violation of the Fourteenth Amendment to the United States Constitution, and Section 19, Art. 1, of the Constitution of Texas."
Art. 1, Sec. 19, of the Texas Constitution, Vernon's Ann.St., provides as follows:
"No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."
This has been included in all of the Texas Constitutions.
"Such rights as are held to be protected by that part of the fourteenth amendment to the constitution of the United States to which we have referred, are as fully protected by the nineteenth section of article 1 of the constitution of this state." Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252 (1887).
In Duke v. State of Texas, 327 F. Supp. 1218 (E.D.Tex.1971), the court held unconstitutional an exparte restraining order prohibiting off-campus speakers at a scheduled rally. At page 1225, the court said:
"At this point in history, there can be no doubt that the Fourteenth Amendment made applicable to the States the full panoply of First Amendment guarantees. [citing authorities omitted]"
And on page 1231 observed:
"Indeed, the judgment of the State district court recites that the judge has not given any consideration to the constitutional questions raised. It is critical to the vitality of our federalism that State court judges, as well as the national government's judiciary, are obligated to apply the Constitution to the facts and the law in the cases before them. Article 6, Clause 2, Constitution of the United States. The failure and refusal of the State district judge to rule on the constitutional issues, which were squarely presented to him, presents an abuse of judicial discretion of such magnitude as to amount to a denial of the most fundamental element of the Due Process Clause of the Fourteenth Amendment the right to a full and fair hearingand to a denial of the equal protection of the laws."
Mr. Justice Harlan, dissenting in Re Gault, 387 U.S. 1, 81, 87 S. Ct. 1428, 1471, 18 L. Ed. 2d 527, 576 (1967), expressed the thought in this manner:
"Similarly, due process clearly requires timely notice of the purpose and scope of any proceedings affecting the relationship of parent and child. Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62."
In Industrial Accident Board v. O'Dowd, 157 Tex. 432, 303 S.W.2d 763 (1957), after notice of hearing, the Industrial Accident Board disbarred O'Dowd from practicing law before that Board. It was contended that since the applicable statute did not explicitly require the giving of notice, it was violative of constitutional guarantees of due process of law. This position, appellant contended, was supported by the case of Francisco v. Board of Dental Examiners, 149 S.W.2d 619 (Tex.Civ.App., Austin, 1941, error refused). Justice Norvell writing for the Supreme Court, distinguished by holding that the statute involved in the Francisco Case required "the Board ... to proceed without hearing and without notice." (303 S.W.2d at p. 765) The Industrial Accident Board *382 had construed the statute involved in the O'Dowd Case as requiring notice, that notice was actually given, and that, therefore, the mere failure of the statute to explicitly require notice was not violative of constitutional guarantees. However, the court is clear in requiring notice be given in such a proceeding.
In Texas Department of Public Safety v. Hamilton, 304 S.W.2d 719 (Tex.Civ.App., Eastland, 1957, [157 Tex. 616, 306 S.W.2d 712] error ref. n. r. e.), the Texas Department of Public Safety contended that under Sec. 28 of Art. 6687b, V.A.C.S., it had authority to automatically suspend an operator's license without notice or hearing upon notification that the holder of a Texas operator's license had been convicted of an offense in a sister state. The court rejected this contention, saying:
"Section 28, supra, does not expressly provide for notice but there is a presumption in the absence of explicit language to the contrary that the legislature intended a valid and constitutional statute, and, therefore, intended that due notice should be given. Industrial Accident Board v. O'Dowd, 157 Tex. 432, 303 S.W.2d 763. Appellant concedes that no notice was given to Hamilton. Since an administrative agency has no power to cancel or suspend a license without notice the trial court properly set aside the board's order suspending his license. 1 Tex.Jur. (Ten Yr.Supp.) 110." (304 S.W.2d at p. 722)
See also Jackson v. Napier, 307 S.W.2d 833 (Tex.Civ.App., Fort Worth, 1957, no writ).
In In Re Adoption of Armstrong, 371 S.W.2d 407 (Tex.Civ.App., El Paso, 1963, error ref. n. r. e.), the father who had not been notified of the adoption of his natural child, sought relief. The district court denied relief, the court of civil appeals affirmed, and the Supreme Court of Texas refused an application for writ of error, no reversible error. Certiorari was granted by the Supreme Court, Mr. Justice Stewart, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62, reversed and remanded for further proceedings, which opinion was adopted by the El Paso Court of Civil Appeals, 394 S.W.2d 552 (Tex.Civ.App., El Paso, 1965, no writ). In its opinion, the Supreme Court of the United States said:
"The questions before us are whether failure to notify the petitioner of the pendency of the adoption proceedings deprived him of due process of law so as to render the adoption decree constitutionally invalid, and, if so, whether the subsequent hearing on the petitioner's motion to set aside the decree served to cure its constitutional invalidity.
"In disposing of the first issue, there is no occasion to linger long. It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law. `Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, at 313, 70 S. Ct. 652, at 656, 94 L. Ed. 865 [at 872]. `An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S. Ct. 339, 85 L. Ed. 278, ... [citations omitted].'" (380 U.S. at p. 550, 85 S.Ct. at p. 1190.)
In City of Houston v. Fore, 412 S.W.2d 35 (Tex.Sup.1967); 401 S.W.2d 921 (Tex. Civ.App., Waco, 1966, reh. den.), the city brought action for street paving assessments and gave notice by three newspaper *383 advertisements. The court held this notice to be insufficient and violative of constitutional guarantees. See also Lowe v. City of Arlington, 453 S.W.2d 379 (Tex.Civ. App., Fort Worth, 1970, error ref. n. r. e.), holding a seventeen hour notice by the court that a hearing had not been continued and would be heard as scheduled to be insufficient.
In Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.Sup.1965), the father who was not a named party to adoption proceedings and who did not participate therein complained. The court said:
"Of course, considerations of due process require that a judicial determination of whether or not Gunn had forfeited his rights be made, after due notice to him and with no shifting of burden of proof to him requiring that he assume the burden of showing that he did not desert, abandon or otherwise forfeit his parental rights to his children." [emphasis supplied] (391 S.W.2d at p. 725)
See also Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961), holding that a deaf mute divorced husband who was given only two days notice of the hearing for alleged failure to make child support payments was denied constitutional due process.
It is the interest of the minor that is paramount in any court action involving minors. See Ex Parte Taylor, 322 S.W.2d 309 (Tex.Civ.App., El Paso, 1959, no writ). Certainly under some circumstances it could be to a minor's best interest to retain his natural father's name. We hold that the natural father has an interest in a proceeding such as this and must be given notice. This notice is guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1, Sec. 19, of the Texas Constitution, and as much a part of Art. 5929, V.A.C.S., as if explicitly written into the article by the legislature.
Reversed and remanded.
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475 S.W.2d 268 (1972)
Lee Belo BROOKS, Appellant,
v.
The STATE of Texas, Appellee.
No. 44520.
Court of Criminal Appeals of Texas.
January 26, 1972.
*269 Jones, Blakeslee, Minton, Burton & Fitzgerald, Austin, for appellant.
Robert O. Smith, Dist. Atty., Herman Gotcher, Sykes, Houston and Lawrence Wells, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of a murder conviction where the penalty assessed by the jury was death.
Appellant initially complains of the introduction into evidence at the guilty state of the trial, over objection, of a temporary restraining order entered in a pending divorce suit between the appellant and the deceased on July 15, 1969, which order was not served upon the appellant until some 9 hours after the alleged killing. Appellant contends the contents of the order were hearsay and inadmissible for any purpose, denied him the right of confrontation of witnesses and constituted an ex parte judicial finding in another legal action of certain facts highly prejudicial to him.
The State's evidence reflects that the deceased, Oreander Brooks, wife of the appellant, arrived home from work around 1:30 a. m. on August 1, 1969. At the time she lived at her mother's house at 705 E. 10th Street in the city of Austin. Shortly after arriving at home she received a phone call, got in her car and left. Her brother, Arelious Walker, followed her in his car to the Austin Police Station parking lot. There she got into her brother's car. Then the appellant, her estranged husband, drove up and got out of his car and put a gun in his pocket. He forced the deceased to get into his car and threatened to kill her. He drove off.
At this juncture two officers drove up and Walker told them what had transpired. The officers followed the appellant and the deceased. Officer Ronald Bruce testified that after a chase at 70-90 m. p. h. the appellant stopped his car and proceeded to run. He was apprehended. A pistol was found on the front seat of his car and when it was retrieved Officer Bruce noted the deceased bleeding from a neck wound. Appellant stated he had shot her. The testimony of other police officers was essentially the same as Officer Bruce's.
Testifying in his own behalf the appellant acknowledged he and his wife had separated on July 14, 1969, but related they had discussed reconciliation and that she had told him on the phone earlier in the evening in question she was coming home. He testified she voluntarily got in his car at the police station and that while they were driving away he sought to place the pistol under the seat; that she grabbed the pistol and while they "tussled" over it, the pistol accidentally discharged striking his wife.
It appears that at the close of the State's case in chief the prosecution offered the divorce petition and the temporary restraining order. The objection to such documents was sustained but the State was permitted to show the deceased had filed for divorce and had sought a temporary restraining order.
At the close of the State's rebuttal evidence the same documents were again offered into evidence over objection. The temporary restraining order was admitted and read to the jury by the deputy district *270 clerk. The divorce petition filed July 15, 1969, which was not admitted before the jury but which is made a part of this record reflects a prayer that a temporary restraining order without notice to the defendant (the appellant herein) be issued. The temporary restraining order entered on the same day reads in part as follows:
"It appearing to the Court, after hearing and due consideration, that probable harm and injury may result to Plaintiff at the hands of the Defendant, unless he is restrained as prayed for in Plaintiff's application;
"It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Defendant, Lee Brooks, be, and he is hereby restrained from going around or upon Plaintiff's residence at 1014 E. 14th Street, Austin, Texas, and from going around Plaintiff at her place of employment, or wherever she may be, and from bothering, molesting or in any manner interferring with Plaintiff; and
"That NOTICE forthwith issue to the Defendant, requiring him to appear before this Honorable Court on the 25th day of July, 1969, at 3:00 P.M. to show cause why a temporary injunction should not issue during the pendency of this suit.
"The Clerk of this Court is hereby directed to quote this fiat and embody the same in the appropriate writ.
"ENTERED on this 15th day of July, 1969.
"/s/ Tom B. Blackwell
Judge Presiding,
53rd District Court
Travis County, Texas."[1]Harold White, a defense witness, testified that in the latter part of July, 1969, he and John Williams had occasion to counsel with the appellant and the deceased about their marital difficulties and that he had taken a pistol away from the appellant after the appellant had stated he was going to take his own life; that subsequently the deceased telephoned him and asked him to "see about Lee," stating she had been talking on the phone to the appellant and she believed "that fellow did what he said he was going to do."
The temporary restraining order was offered by the State because the defense had elicited evidence of a telephone conversation between White and the deceased and "to show the state of mind of the deceased."
The order was then admitted by the court "to show her state of mind because of the testimony of Mr. Hal White and the defendant also."
In its charge the court, however, charged the jury that:
"Evidence has been introduced before you as to a temporary restraining order. This evidence was admitted before you solely for the purpose of showing the state of mind of the deceased, if it does so, and for no other purpose. If you consider such evidence at all, you will consider it solely for the purpose for which it was admitted and for no other purpose."
Whether the charge meant to refer to the state of mind of the deceased at the time of the killing or on July 15 is not clear.
*271 In Pinckord v. State, 13 White & W. 468 (1883), where the accused was charged with attempted murder, the court stated:
"All the proceedings, including the petition, judgment, etc., in a suit wherein defendant's wife had sued and obtained a decree of divorce from him were read by the prosecution in evidence to the jury. As a fact tending to show the feelings and relations of the parties to each other, it was doubtless legitimate to prove that the wife had instituted suit for divorce prior to, and that the same was pending at, the time it was alleged the crime charged against defendant was committed. But it was error to permit the allegations of her petition for divorce to be read and go as evidence to the jury, and especially so without any explanation or instruction as to how far and for what purpose they were alone to be considered. As to the judgment or decree for divorce, that was clearly inadmissible, because it was rendered several months subsequent to the date of the offense alleged in this case, and could possibly have shed no light upon, or tended to illustrate in the remotest degree, any issuable matter in this case."
Hoyle v. State, 153 Tex. Crim. 548, 223 S.W.2d 231 (1949), was a murder case where the State's theory was that the defendant waylaid his wife and shot her to death. The court described evidence as "quite impressive" noting that "[a] deliberately planned and cruel murder was pictured."
The State, however, introduced into evidence the wife's divorce petition and prayer for temporary injunction and temporary alimony as well as the court's order thereon and the service of process by the Sheriff thereunder. Despite the "impressive" evidence of the State and the defendant's testimony that he and his wife had reconciled and were happily married at the time of the alleged offense and that he had been served with notice of the injunction, the court reversed saying:
"It is possible, but not held so in this case, that the fact of the service of the injunction could have become material in rebuttal of evidence given by the defendant, but we find nothing in the record which would support the admission of the petition in court, to say nothing of the action of the court thereon. The fact of the instrument and the facts alleged in the instrument are two different things."
(Emphasis supplied)
On rehearing the State urged that the contents of the pleadings were admissible since the defendant had first brought out the fact that the deceased had sued him for divorce. The court refused to change its mind, distinguishing the cases cited by the State.
In Acker v. State, 421 S.W.2d 398, 402 (Tex.Cr.App.1967), this court noted that pleadings in another law suit have been held to be inadmissible as hearsay, citing Granata v. Mothner, 44 S.W.2d 817 (Tex. Civ.App.1931). In Acker the contents of the divorce petition of Acker's wife were held to be hearsay and inadmissible in prosecution for murder of the wife's former husband. See also Drake v. State, 65 Tex. Crim. 282, 143 S.W. 1157 (1912).
The State seeks to distinguish the authorities cited above by pointing out that in those cases the contents of the divorce petition were introduced and in the instant case the petition was not introduced but only the contents of the temporary restraining order. We cannot conclude that such a distinction is valid.
Further, the State seeks to rely upon Article 1257a, Vernon's Ann.P.C., which provides:
"In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and *272 the deceased, together with all relevant facts and circum tances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed. ..." (Emphasis supplied)
It is well settled, however, that the general rules of evidence were not changed, limited or extended by such statute. Wiggins v. State, 115 Tex. Crim. 434, 27 S.W.2d 236 (1930); Howard v. State, 122 Tex.Cr. R. 371, 55 S.W.2d 1048 (1932); Beard v. State, 146 Tex. Crim. 96, 171 S.W.2d 869 (1943); Scott v. State, 149 Tex. Crim. 4, 190 S.W.2d 828 (1945); Childers v. State, 150 Tex. Crim. 453, 202 S.W.2d 930 (1947); Wheeler v. State, 156 Tex. Crim. 140, 239 S.W.2d 105 (1951).
In 4 Branch's Ann.P.C., 2d ed., Sec. 2200, p. 557, it is said:
"This article does not make hearsay testimony admissible or render admissible testimony which otherwise would be objectionable such as testimony which involved an opinion or conclusion of the witness. Russell v. State, 119 Crim. 469, 45 S.W.2d 622; Childers v. State, 150 Crim. 453, 202 S.W.2d 930."
It is clear then that the court erred in admitting into evidence the hearsay contained in the temporary restraining order.
The State contends that if there was error it was harmless error. The order informed the jury before their finding of guilt that in a prior judicial proceeding "after hearing and due consideration" it had been determined that the appellant was likely to harm the deceased. What the trial judge who entered the order found was not relevant to the issue of the state of mind of the deceased, even if it can be argued that issue was involved in the instant case. Further, the order and its contents were unknown to the appellant. The same was hearsay and highly prejudicial even though the court sought to limit the same in his charge. In light of these circumstances and the assessment of the extreme penalty, we cannot agree that the error was harmless.
Appellant also presents a serious question in his claim that the mandates of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), were not met in the selection of the jury. In view of our reversal on other grounds we need not consider this contention. In the event of a re-trial, the court's attention is directed to our recent decision in Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971), and the five Texas cases in which the death penalty was set aside and the cause remanded to this court for further consideration in light of Witherspoon and the decisions in Boulden v. Holman, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 and Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221. See Turner v. Texas, 403 U.S. 947, 91 S. Ct. 2289, 29 L. Ed. 2d 858 (Tex.Cr.App., 462 S.W.2d 9); Quintana v. Texas, 403 U.S. 947, 91 S. Ct. 2284, 29 L. Ed. 2d 857 (Tex.Cr.App., 441 S.W.2d 191); Whan v. Texas, 403 U.S. 946, 91 S. Ct. 2281, 29 L. Ed. 2d 856 (Tex.Cr.App., 438 S.W.2d 918); Harris v. Texas, 403 U.S. 947, 91 S. Ct. 2291, 29 L. Ed. 2d 859 (Tex. Cr.App., 457 S.W.2d 903); Crain v. Beto, 403 U.S. 947, 91 S. Ct. 2286, 29 L. Ed. 2d 857.
For the reason stated, the judgment is reversed and the cause remanded.
NOTES
[1] It appears this temporary restraining order was granted without notice. See Rule 680, Texas Rules of Civil Procedure. Without any discussion of whether the order met the requirements of said Rule 680, Cf. Crouch v. Crouch, 164 S.W.2d 35 (Tex.Civ.App.1942), we note that such rule provides that such order expires within a period of time not to exceed ten days unless for good cause shown the time is extended for a like period or unless the person against whom the order is directed consents that it may be extended for a longer period. It would appear from the record before us the temporary restraining order expired on July 25, 1969.
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30 N.J. 345 (1959)
153 A.2d 28
CHARLES BUSH, BY CHARLES BUSH, HIS GUARDIAN AD LITEM, CHARLES BUSH, INDIVIDUALLY, AND DORIS BUSH, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY & NEW YORK TRANSIT CO., INC., INTER-CITY TRANSPORTATION CO., INC., DEFENDANTS-RESPONDENTS, AND STANLEY J. MALORGIO, DEFENDANT.
The Supreme Court of New Jersey.
Argued May 4, 1959.
Decided June 30, 1959.
*348 Mr. Harry Chashin argued the cause for plaintiffs-appellants (Messrs. Marcus & Levy, attorneys).
Mr. Archibald Kreiger argued the cause for defendants-respondents.
The opinion of the court was delivered by SCHETTINO, J.
Appeal is from a judgment of the Appellate Division (52 N.J. Super. 513 (1958)) affirming a Superior Court, Law Division, judgment in favor of defendant upon a jury's verdict of no cause of action. This is an infant pedestrian-motor bus negligence case for personal injuries on behalf of the infant plaintiff and for the parents' per quod. We granted certification. 29 N.J. 62 (1959).
The infant plaintiff (hereinafter referred to as "plaintiff") was 4 years, 1 month and 19 days old on the date of the accident, June 13, 1956. At that time the Bush family consisted of the parents, plaintiff, and three other children whose ages were three years, two years and six months. They resided at 67 Chadwick Street, Paterson, approximately one block from a heavy traffic intersection of Main and Mary Streets, the point where plaintiff received his injuries. On this day, Mrs. Bush sent plaintiff and his three-year-old sister out to play on their tricycles. The children wandered a block away to the above mentioned intersection. Apparently plaintiff left his sister and the two tricycles on the near side of the intersection and crossed the street. The evidence indicates that the boy was returning to his sister and the tricycles when he either ran into the rear, or was struck by the front, of the corporate defendant's bus. During the course of the trial plaintiffs took a voluntary dismissal as to the driver of the bus, Stanley J. Malorgio.
There was no eyewitness to the accident. Defendant's bus was proceeding in the southbound lane of Main Street. *349 There was a group of telephone company employees working in a manhole at the opposite side of the intersection in the northbound lane. A civil engineer placed this manhole well over on the easterly side of the street. A member of the Paterson Police Department investigated the incident and testified that when he saw plaintiff, plaintiff was lying in the road alongside the left rear wheel of the bus and that the bus was "parked in the intersection, in the middle of the road," and there were no skidmarks. He further testified that he interrogated the bus driver, and that when he asked the driver what had happened, the driver told him that he was driving south on Main Street, he had a green light, he was going through the intersection when he heard a thump, he immediately stopped the bus, and when he got out, he saw the plaintiff lying there alongside the left rear side of bus.
The deposition of the bus driver was read into evidence. He stated that he was driving southerly on the proper side of the road, that there was "Lots of clearance" between the bus and the manhole, that he looked into his rear view mirror to see if he had cleared the manhole area because of "force of habit," that he did not see the child before the impact, that through his rear view mirror he saw the child bounce off the bus right at the intersection and that it took him "about thirty-five or forty feet" to stop the bus.
On direct examination he testified that he was proceeding southerly on Main Street, that when he was at Weiss Street, a block before Mary Street, he observed a red traffic light facing him at the intersection of Main and Mary Streets, that he was travelling at a speed of from 10 to 12 miles per hour and that the light turned green for him shortly before he reached Mary Street. Malorgio stated that he looked to the corner on his right for prospective passengers and, seeing none, he continued straight through the intersection at the same speed. After entering the intersection he looked into his rear view mirror to determine whether he had "cleared the men" working at the manhole although there *350 was admittedly plenty of clearance and there was no evidence of men actually working on the surface. He had not seen plaintiff at any moment before he saw the boy bounce off the rear left wheel of the bus. He again stated that he brought the bus to a stop in 35-40 feet. The bus was 32-35 feet long. Malorgio emphatically denied telling the police officer that he found the child lying alongside the left rear of the bus.
A repairman working at the manhole testified that the child was lying within a bus length of the bus, approximately 35 feet, and was in the northerly, or opposite, traffic lane. The witness stated further that he examined the rear of the bus and found a large, fresh black mark on the left rear tire where the dust of the road had been wiped from it.
Another manhole workman testified that he saw the boy lying very near the manhole in the northerly lane and saw the bus a block away at the next bus stop.
At the conclusion of the testimony and after the denial of a motion for judgment by defendant, the trial court instructed the jury that the care required of an infant old enough to be capable of negligence is that care that is usually exercised by persons of similar age, judgment and experience and that in determining whether a child old enough to be capable of negligence has been guilty of contributory negligence "it is necessary to take into consideration the age of the child, its experience and capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation." Plaintiff's counsel objected to the instruction and to the submission to the jury of the question of contributory negligence. He argued that under the proofs plaintiff could not have been guilty of contributory negligence and that the court should decide the question of contributory negligence in plaintiff's favor rather than submit it to the jury as a question of fact.
The jury returned a verdict of "No cause for action in favor of the defendant." It is, of course, impossible to determine whether the jury found the total absence of negligence *351 by defendant or contributory negligence by the infant plaintiff.
In the Appellate Division plaintiff argued that the trial court erred in submitting the issue of contributory negligence to the jury because there was no evidence in the record to rebut the presumption of continuing incapacity (Dillman v. Mitchell, 13 N.J. 412 (1953)), and that, therefore, the presumption compels the particular conclusion in the absence of evidence contra. In re Blake's Will, 21 N.J. 50, 58 (1956); Silver Lining, Inc. v. Shein, 37 N.J. Super. 206 (App. Div. 1955); Morgan, "Presumptions," 10 Rutgers L. Rev. 512 (1956). It treated plaintiff's argument to be that the issue of contributory negligence should have been withheld from the jury as a matter of law because of plaintiff's age and not that the legal rule charged was erroneous. The Appellate Division rejected plaintiff's arguments and affirmed the judgment. It held that the question of plaintiff's capacity for contributory negligence was disputable and it was properly submitted to the jury.
On this appeal plaintiff's counsel argues that there is a rebuttable presumption that this 4 years, 1 month, 19-day-old child is incapable of contributory negligence and that the presumption of continuing incapacity has not been rebutted and therefore "the trial court was legally precluded from charging contrary to the presumption."
Defendant argues that any error concerning the question of contributory negligence could not have been prejudicial as there is no evidence in the case that would warrant a finding of primary negligence on the part of defendant. Plaintiff has filed a reply brief directed solely to defendant's argument that there is no evidence of negligence.
It is manifest that if there was no evidence, direct or circumstantial, upon which the jury could have premised a finding of negligence on the part of defendant's bus driver, any error concerning a charge of contributory negligence could not be prejudicial. Egan v. Erie R. Co., 29 N.J. 243, 251 (1959); Cohen v. Borough of Bradley Beach, 135 *352 N.J.L. 276, 279 (E. & A. 1946) ("Where actionable negligence is not attributable to defendant, the question of `contributory negligence' is immaterial."); Freschi v. Mason, 108 N.J.L. 272, 276-277 (E. & A. 1931). Cf. Maccia v. Tynes, 39 N.J. Super. 1 (App. Div. 1956). Therefore, if the record were to present no evidence of defendant's negligence, then the judgment would be affirmed. Van Derbeek v. Conlon, 41 N.J. Super. 574, 580 (App. Div. 1956) ("Assuredly an error in instructions of law as against an unsuccessful plaintiff is not prejudicial where he manifestly fails basically to support his alleged cause of action by the facts."). This result would follow even if defendant had not argued the complete absence of negligence. Cf. Cloyes v. Delaware Tp., 23 N.J. 324, 336-337 (1957); Meistrich v. Casino Arena Attractions, Inc., 54 N.J. Super. 25, 30 (App. Div. 1959), certification granted 29 N.J. 582 (1959). We think that the conflicting testimony as to the position of the plaintiff in relation to the bus after it came to a stop presented a jury question on the issue of negligence. Petrosino v. Public Service Coordinated Transport, 1 N.J. Super. 19 (App. Div. 1948); Baker v. Kaplan, 1 N.J. Super. 160 (App. Div. 1949). Thus, if there was error in the submission of the question of contributory negligence to the jury, or in the correctness of the charge, such error would be prejudicial.
We next consider the question whether it is proper to allow the jury to consider the contributory negligence of this plaintiff.
No definitive answer has yet been found for the problem of the capacity of children of tender years to act negligently. See Annotations, 107 A.L.R. 4; 174 A.L.R. 1080; 5-A Am. Jur. 729; Prosser on Torts (2nd ed. 1955), p. 127 et seq.; 2 Harper & James, The Law of Torts (1956), p. 924 et seq.; Restatement, Torts, §§ 283, 488; Shulman, "The Standard of Care Required of Children," 37 Yale L.J. 618 (1927); Wilderman, "Contributory Negligence of Infants," 10 Indiana L.J. 427 (1935); Note, 21 Col. L. Rev. *353 697 (1921); Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 73 A.L.R. 1266 (Sup. Ct. 1931); Eckhardt v. Hanson, 196 Minn. 270, 264 N.W. 776, 107 A.L.R. 1 (Sup. Ct. 1936); and Tyler v. Weed, 285 Mich. 460, 280 N.W. 827 (Sup. Ct. 1938) (in which an excellent discussion of the conflicting views is presented in the majority and dissenting opinions). There appear to be two prevalent views, the "Illinois rule," which holds that there is a conclusive presumption of incapacity up to age seven, and the "Massachusetts rule" which holds that there is a rebuttable presumption of incapacity up to age seven.
Our courts formerly adhered to the Illinois rule, i.e., conclusive presumption of incapacity. Schneider v. Winkler, 74 N.J.L. 71 (Sup. Ct. 1906). But subsequent cases followed the Massachusetts rule. Baker v. Public Service Ry. Co., 79 N.J.L. 249 (Sup. Ct. 1910); Arivabeno v. Nuse, 12 N.J. Misc. 729 (Sup. Ct. 1934). Cf. Hellstern v. Smelowitz, 17 N.J. Super. 366, 377 (App. Div. 1952) (a case involving a child of 5 years, 3 months and 15 days) wherein Judge Jayne thoroughly reviewed the authorities and stated that "the capacity of an infant to understand and to avoid dangers to which it is exposed in a given set of circumstances does not depend so much upon the chronological age of the infant as upon the infant's psychological development." The opinion outlined the law of this State to be that the degree of care required of a child old enough to be capable of negligence is such as is usually exercised by persons of similar age, judgment and experience. The court stated that if, after a consideration of the age, experience and capacity of the child to understand and avoid the risks and dangers to which it was exposed in the actual circumstances and situation of the case, fair-minded men might honestly differ as to whether the child failed to exercise that degree of care that is usually exercised by persons of similar age, judgment and experience, the question should be submitted to the jury, but that if fair-minded men could not conclude that the child had the capacity to *354 be negligent, the court should determine the question of incapacity.
This court considered the problem in Dillman v. Mitchell, 13 N.J. 412 (1953). In that case the infant was 5 1/2 years old. He was killed as he was crossing a street intersection. Plaintiff there argued for a conclusive presumption of incapacity and contended that the question of contributory negligence was erroneously submitted to the jury. We rejected the conclusive presumption rule and stated that (13 N.J. at pages 415-416):
"* * * A child may be so young as to be incapable of negligence as a matter of law, but the age comes when it is a question of fact, although there be a presumption of continuing [incapacity]." (Emphasis supplied)
We reaffirm the rebuttable presumption of incapacity test as stated in Dillman v. Mitchell.
The question of capacity or incapacity is simply a factual inquiry and is whether the particular child has the capacity to be contributorily negligent, i.e., act unreasonably under the circumstances, in light of the age, training, judgment and other relevant factors which apply to the particular child. And the test to be applied is that applicable to any other question of fact. The trial judge is the first to view the matter and if he is of the opinion that the child, after a consideration of all of the relevant factors, does not have the capacity to be contributorily negligent and that reasonable men could not disagree, he then decides the question of capacity as a matter of law. But if the trial judge feels that reasonable men can disagree on the question of incapacity, even though he himself would decide for or against incapacity, then he must allow the jury to decide the question of incapacity. The jury, if it finds that the particular child at the time of the accident had the capacity to be negligent, must then decide whether the particular child was negligent. Essentially the question is handled similarly to any other question of fact and will be reviewed *355 in the same manner. Cf. Hoff v. Natural Refining Products Co., 38 N.J. Super. 222, 235 (App. Div. 1955).
The exigencies of everyday trial court practice render it necessary to delineate at what age a trial court should allow the jury to determine the question of capacity or incapacity, absent any special attribute possessed by the child. Most courts have drawn the line at some point for purposes of certainty and trial expediency. But the line is not easily drawn. We note that "The age of a child is of significance primarily as a mark or sign of his mental capacity to understand and appreciate the perils that may threaten his safe being. In all the jurisdictions the courts definitely recognize that at least at some point during the early stages of infancy a child is incapable of contributory negligence as a matter of law, but there is a wide diversity of judicial opinion as to a definite or fixed age that is sufficient to constitute a child sui juris, so as to charge it with contributory negligence." Walston v. Greene, 247 N.C. 693, 102 S.E.2d 124, 126 (Sup. Ct. 1958).
This "wide diversity" is pointed up by reference to conflicting authorities. Courts have held children to be incapable of contributory negligence as a matter of law up to the age of ten years. Lever Bros. Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002 (Ct. App. 1950) (six years); Beasley v. United States, 81 F. Supp. 518 (D.C.S.C. 1948) (ten years); Morris v. Boleware, 228 Miss. 139, 87 So.2d 246 (Sup. Ct. 1956) (eight years); Ruka v. Zierer, 195 Wis. 285, 218 N.W. 358, 361 (Sup. Ct. 1928) (five years, three months: "* * * while it is held in a few jurisdictions that a child of that age is capable of contributory negligence, the overwhelming weight of authority is to the effect that a child of that age is conclusively presumed to be incapable of contributory negligence."); Grogan v. York, 93 N.H. 184, 38 A.2d 295 (Sup. Ct. 1944) (five years, six months); Paschka v. Carsten, 231 Iowa 1185, 3 N.W.2d 542 (Sup. Ct. 1942) (six years); Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897 (Ct. App. 1944) *356 (six years); Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448 (Ct. App. 1939) (seven years); Shill v. New Orleans Public Service, 175 So. 113 (La. Ct. App. 1937) (six years); Eden v. Klaas, 166 Neb. 354, 89 N.W.2d 74 (Sup. Ct. 1958) (five years); Shaske v. Hron, 266 Wis. 384, 63 N.W.2d 706, 707 (Sup. Ct. 1954) (four years, eight months: "* * * it has been generally considered that a child under five and one-half years of age is incapable of either contributory or primary negligence."); Mink v. Cincinnati Street Ry. Co., 99 Ohio App. 123, 131 N.E.2d 606 (Ct. App. 1954) (four years); Guscinski v. Kenzie, 282 Mich. 204, 275 N.W. 820 (Sup. Ct. 1937) (five years); Nagy v. Balogh, 337 Mich. 691, 61 N.W.2d 47 (Sup. Ct. 1953) (four years, nine months); Law v. Hemmingsen, 89 N.W.2d 386 (Iowa Sup. Ct. 1958) (four years); Rainwater v. Boatright, 61 So.2d 212 (La. Ct. App. 1952) (five years); Schmidt v. Allen, 303 S.W.2d 652 (Mo. Sup. Ct. 1957) (four years); Eaton v. R.B. George Investments, 152 Tex. 523, 260 S.W.2d 587 (Sup. Ct. 1953) (three years, eight months); Kelly v. Hunsucker, 211 N.C. 153, 189 S.E. 664 (Sup. Ct. 1937) (four years, six months); Green v. Bowers, 230 N.C. 651, 55 S.E.2d 192 (Sup. Ct. 1949) (four years); Oviatt v. Camarra, 210 Or. 445, 311 P.2d 746, 751 (Sup. Ct. 1957) ("We have held that a child under five years of age is incapable of negligence as a matter of law."); Womack v. Preach, 64 Ariz. 61, 165 P.2d 657 (Sup. Ct. 1946) (four years, six months); Locke v. Ford, 54 Ga. App. 322, 187 S.E. 715 (Ct. App. 1936) (four years, five months); Hogan v. Etna Concrete Block Co., 325 Pa. 49, 188 A. 763 (Sup. Ct. 1936) (five years) and Mahan v. State, 172 Md. 373, 191 A. 575 (Ct. App. 1937) (four years plus). In Johnson v. Bay City, 164 Mich. 251, 255, 129 N.W. 29, 31 (Sup. Ct. 1910) the court said:
"* * * We believe, however, that all reasonable minds would agree that an infant, but little more than five years of age, could not have sufficient intelligence to be charged with negligence, either as a matter of law or as a matter of fact. It may be difficult, *357 perhaps impossible, to point out the exact age at which the question becomes one for the jury, but it is, we think, clear that it has not arrived at five years and four months."
Referring again to a child of five years and four months the court in Von Saxe v. Barnett, 125 Wash. 639, 645, 217 P. 62, 64 (Sup. Ct. 1923) said:
"At such an age a child is a creature of impulse and impetuosity. It has no habits of deliberation and forethought. While at play it might remember none of the warnings that had been given."
For cases holding children under three incapable, see 174 A.L.R. at page 1116; between three and four, 174 A.L.R. at page 1117; between four and five, 174 A.L.R. at page 1119; at age five, 174 A.L.R. 1123; and see generally 107 A.L.R. 4.
But there are also authorities, although not extensive, holding that very young children may be capable of being contributorily negligent without referring to the proof that the infant, in fact, had training and experience evidencing a capacity to understand and to avoid the danger of injury in the circumstances of the case. Bruno v. Belmonte, 252 Minn. 497, 90 N.W.2d 899 (Sup. Ct. 1958) (five years); Colligan v. Reilly, 129 Conn. 26, 26 A.2d 231 (Sup. Ct. Err. 1942) (four years, four months); Rutkowski v. Connecticut Light & Power Co., 100 Conn. 49, 52, 123 A. 25 (Sup. Ct. Err. 1923) (five years); Milliken v. Weybosset Pure Food Market, 71 R.I. 312, 44 A.2d 723 (Sup. Ct. 1945) (The child, there two years, four months of age, "must exercise such care as one of its age is ordinarily expected to exercise, * * *."); Camardo v. New York State Rys., 247 N.Y. 111, 159 N.E. 879 (Ct. App. 1928) (four years, 11 months); Day v. Johnson, 265 App. Div. 383, 39 N.Y.S.2d 203 (App. Div. 1943) (four years, one month, seven days); United Rys. & Electric Co. v. Carneal, 110 Md. 211, 231, 72 A. 771 (Ct. App. 1909) (three years); State, to Use of Kolish v. Washington, B. & A. Electric R. Co., 149 Md. 443, 459, 131 A. 822 (Ct. App. 1926) (four years plus); State, *358 for Use of Taylor v. Barlly, 216 Md. 94, 140 A.2d 173, 177 (Ct. App. 1958) (five years); National City Development Co. v. McFerran, 55 A.2d 342, 345 (Mun. Ct. App. D.C. 1947) (five years). And compare the Massachusetts cases of Dennehy v. Jordan Marsh Co., 321 Mass. 78, 71 N.E.2d 758, 760 (Sup. Jud. Ct. 1947) (four years, five months) and Capano v. Melchionno, 297 Mass. 1, 7 N.E.2d 593 (Sup. Jud. Ct. 1937) (4 years, 11 months).
After a consideration of the authorities we adopt the view that a child of less than seven years of age is rebuttably presumed to be incapable of negligence and hence the issue may not be submitted to the jury in the absence of evidence of training and experience from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case. Cf. Riggs v. Watson, 77 Ga. App. 62, 47 S.E.2d 900, 905 (Ct. App. 1948). We note that in New Jersey a child is required to enter school upon reaching seven, although a child may enter school at five as most of them do. (N.J.S.A. 18:14-14). (See extensive discussion of the many studies concerning the maturity of children and the reference to the statutory school age in Tyler v. Weed, supra).
If evidence of capacity is introduced, then the trial judge must determine if such evidence is sufficient so that reasonable men might disagree concerning the question of whether the child had the capacity to perceive the risk and avoid the danger to himself. If the answer is in the affirmative and if there is further evidence that the child did not act in a manner which would be expected of a child of similar age, judgment and experience, then the question of contributory negligence must be submitted to the jury. The trial court must instruct the jury that there is a presumption of incapacity, that it is first to determine whether there is such evidence sufficient to overcome the presumption of incapacity and to render the child capable of being contributorily negligent, and, then, if the jury finds that the child is capable, it must determine whether the child was *359 contributorily negligent under the facts of the particular case.
Defendant argues that this particular child had certain training and experience which rendered him above average, i.e., he attended Sunday School and church, he was enrolled in kindergarten seven months after the accident, he was allowed to play alone, he was entrusted with the care of his younger sister and he was described by the treating physician as being remarkably calm and cooperative. Defendant also refers to the fact that the infant was in court at the trial and was observed by the judge and jury. The Appellate Division agreed with defendant. 52 N.J. Super. 513, 518 (1958). Suffice it to say that the evidence outlined is not sufficient to distinguish this child from the average child of his age.
Additional factors which might be introduced to show that a child was capable of negligence whereas the average child of the same age would not be are, for example, his attending school, his being taught traffic safety regulations, his experience in caring for himself in traffic, and any other evidence of the child's physical and mental capabilities. Compare Shulman, supra, at page 620, and the factors deemed pertinent in Dillman, supra (13 N.J. at pages 416-417).
As the plaintiff in the instant case was 4 years, 1 month and 19 days of age, and as there was no evidence of capacity for contributory negligence, that issue should not have been submitted to the jury.
Reversed, costs on appeal to abide the outcome of the retrial.
For reversal Chief Justice WEINTRAUB, and Justices BURLING, JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO 7.
For affirmance None.
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475 S.W.2d 932 (1972)
Evert RICHARDSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 44636.
Court of Criminal Appeals of Texas.
February 16, 1972.
Glen A. Barnard, of Chavez & Barnard, Harlingen, for appellant.
F. T. Graham, Dist. Atty., and Menton Murray, Jr., Asst. Dist. Atty., Brownsville, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for the offense of burglary with the intent to commit theft. The punishment was assessed by the court at two years.
After being properly admonished, the appellant entered a plea of guilty before the court. He entered a written waiver of a jury, the confrontation and cross-examination of witnesses and consented to the introduction of affidavits, written statements of witnesses and other documentary evidence by the State.
He now contends that the State's exhibits were not formally introduced and that the evidence is therefore insufficient to support the conviction under Article 1.15, Vernon's Ann.C.C.P.
*933 After the court accepted the plea, the following occurred:
"MR. MURRAY (Assistant District Attorney): As State's Exhibit Number 1, the statement of Sherman Lowell Perry, the owner of the liquor store, 6980 East 14th Street, Brownsville, Cameron County, Texas: `On December 25, 1970, some time between'"
The court interrupted and ascertained that counsel for appellant had been appointed for more than ten days. The prosecutor then began to tell the court what the statement contained and then the record reflects:
"THE COURT: Have you offered all of those in evidence? I probably can read them faster.
"MR. MURRAY: All right, sir.
"THE COURT: Is it agreeable, Mr. Barnard?
"MR. BARNARD (Defense Counsel): Yes, sir.
(Whereupon State's Exhibits 1-12 were given to the Court)
"THE COURT: Anything further from the State?
"MR. MURRAY: No."
The appellant then stated to the court that he was celebrating or drinking too heavy and did not realize what he was doing and asked for probation. He also stated: "This last case, the last time I was sent up, was for something I wouldn't have done in my right mind for no amount of money in the world," and that he realized that his trouble was when he drank.
State's Exhibit No. 1, the statement of Sherman Perry, the owner of the burglarized liquor store, reflects that his store was broken into and a case of liquor was taken and that he saw a man carrying it out of his yard and it was reported to the police.
State's Exhibit No. 2, an affidavit by Ofelia Quintanilla Garcia, recites that she saw Evert Richardson coming out of the gate at the liquor store "carrying a box in which liquor is pack. (sic)" State's Exhibits 3, 4 and 5 were affidavits which also connected the appellant with the burglary. Exhibits 6 through 12 were photographs of the liquor and the building.
Does the fact that the record does not show that the court did not say in so many words that the exhibits were admitted into evidence keep them from being considered? In Erwin v. State, 171 Tex. Crim. 323, 350 S.W.2d 199, the document in question was not formally offered or admitted into evidence. There the Court held that the reading of the document to the jury without objection was tantamount to its introduction. See Ex parte Jackson, Tex. Cr.App., 470 S.W.2d 679, 682 [7]. Cf. Ex parte Hagler, 161 Tex. Crim. 387, 278 S.W.2d 143.
In the present case the judge asked if he could read the exhibits instead of having them presented or read by the State and counsel for the appellant agreed. The record shows that the twelve exhibits, which were sufficient to prove appellant's guilt, were presented to the judge. Later the judge announced that the evidence was sufficient to support the conviction.
We hold that this record shows the acceptance of the exhibits by the trial judge under the circumstances of this case was sufficient to show that they were received into evidence. The evidence is sufficient to support the conviction.
The judgment is affirmed.
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190 Pa. Super. 166 (1959)
Wilcox
v.
Evans, Appellant.
Superior Court of Pennsylvania.
Argued March 19, 1959.
August 10, 1959.
*167 Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Edmund B. Spaeth, Jr., with him MacCoy, Evans & Lewis, for appellant.
David F. Maxwell, with him Herbert A. Fogel, and Obermayer, Rebmann, Maxwell & Hippel, for appellee.
OPINION BY WOODSIDE, J., August 10, 1959:
This is an appeal by the defendant from the order of the Municipal Court of Philadelphia overruling the defendant's preliminary objections to a complaint in equity. The appeal questions the jurisdiction of the Municipal Court.
Homer B. Wilcox, Jr., the plaintiff, and Elizabeth N. Evans, the defendant, were married on October 25, 1941. Four children were born of the marriage. As a result of marital differences, the parties determined to live apart, and entered into a separation agreement on January 9, 1954. The parties were divorced a.v.m. on October 24, 1955, and the agreement was amended to conform to the changed circumstances and to provide thereafter for the support of the children. Both parties have since remarried.
On August 15, 1958, the plaintiff filed a complaint in equity seeking an order remitting accumulated arrearages *168 in the payments and reducing the support payments below the sum contained in the agreement. The defendant filed preliminary objections to the complaint on the grounds that the Municipal Court of Philadelphia did not have jurisdiction over the subject matter in that the value of the matter or thing in controversy exceeded the sum of $5,000, that the record of the Municipal Court disclosed that plaintiff had failed to file a certificate as to the amount of the thing or matter in controversy, and lastly, that the complaint does not state a cause of action. The Municipal Court overruled the preliminary objections and the defendant appealed to this Court.
The defendant was procedurally correct when she included both the jurisdictional questions and the demurrer in her preliminary objections, and the court below was procedurally correct in passing upon both. See Pa. Civil Procedure No. 1017b(1) and (4) and Rule No. 1028. Orders made on preliminary objections are interlocutory, and ordinarily not appealable. Fairchild E. & A. Corp. v. Bellanca Corp., 391 Pa. 177, 181, 137 A.2d 248 (1958). However, the Act of March 5, 1925, P.L. 23, 12 PS § 672,[1] provides that an appeal may be taken directly from the determination of the order of the court on a jurisdictional question. This act does not relate to the matters going to the right of the plaintiff to recover on his cause of action, but to his right to have his cause of action heard and determined. Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 309, 102 A.2d 170 (1954). An appeal under the Act of 1925 cannot raise in a preliminary way the right of the claimant to recover on his cause of action, but only the right to have his cause heard and determined, even *169 though it might ultimately be decided that he is not entitled to the relief which he seeks. Holmes Petition, 383 Pa. 99, 102, 117 A.2d 704 (1955). Jurisdiction of the cause of action, as used in the Act of 1925, relates solely to the competency of the particular court to determine controversies of the general class to which the case then presented for its consideration belongs. Heffernan's Appeal, 121 Pa. Super. 544, 547, 184 A. 286 (1936).
Since this appeal is under the Act of 1925, the only matter to be decided by us at this time is the jurisdiction of the Municipal Court to hear this controversy. Jones v. Jones, 344 Pa. 310, 311, 25 A.2d 327 (1942).
Whether the complaint states a cause of action is not before us in this appeal as the Municipal Court's determination on that point is interlocutory and no statutory right of appeal therefrom is available to the defendant at this time. We, therefore, do not pass upon the holding of the court below that the complaint states a cause of action.
The only question before this Court, as stated in the appellant's brief is: "Does the Municipal Court of Philadelphia have jurisdiction of an action to rescind a written agreement in which plaintiff promises to make certain payments to defendant (his former wife) when the action is in equity and does not involve any sum certain, and when plaintiff has refused to file a certificate that no more than $5,000 is in controversy?"
The court below in an opinion of Judge DINUBILE held that the Municipal Court had exclusive jurisdiction over the proceedings under Section 11 of the Act of July 12, 1913, P.L. 711, as amended, 17 PS § 694, which provides, inter alia: "The jurisdiction of the said Municipal Court shall be exclusive (a) In all proceedings brought against any husband or father, wherein it is charged that he has without reasonable *170 cause separated himself from his wife or children, or from both, or has neglected to maintain his wife or children; . . . (b) In all proceedings concerning dependent, delinquent, or neglected children, as defined by existing laws relating thereto, which are hereby made applicable to proceedings in the Municipal Court."
The appellant contends that the present action falls under Section 10 of the Municipal Court Act, supra, as amended, 17 PS § 693, which provides, inter alia, "The said Court hereby created shall have jurisdiction in all civil actions at law and in equity where the value of the matter or thing in controversy, exclusive of interest and costs, does not exceed the sum of $5,000 . . . in actions in law or in equity not involving any sum certain, the plaintiff shall file with his statement a certificate as to the amount of the thing or matter in controversy." The filing of a certificate as to the amount in controversy is unnecessary if the action falls within Section 11 of the Act. The court would then have exclusive jurisdiction over the proceedings regardless of the amount in controversy. See Thomas v. Thomas, 112 Pa. Super. 578, 172 A. 36 (1934); Gessler v. Gessler, 181 Pa. Super. 357, 124 A.2d 502 (1956).
Appellant contends that this proceeding is not a "proceeding brought against a husband or father" (emphasis supplied) under subparagraph "a" of Section 11, nor is it a proceeding concerning dependent, delinquent, or neglected children. The appellant would have this Court decide that subsection "a" applies only to those cases in which a husband or father is the defendant. This argument places too literal a construction upon the Municipal Court Act.
In referring to the Juvenile Court Act, this Court said in Wolf's Case, 58 Pa. Super. 260 (1914): "In the administration of [the Juvenile Court Law] narrow and refined construction of its words, without *171 regard to its true spirit, should not be sought for. Nor should regard for the niceties and formalities of practice and pleading be carried to such extent as to defeat, in particular cases, the benign purpose of the legislature."
The basic question involved in the action brought in this case is the amount of support the children should receive from their father. The legislature gave exclusive jurisdiction of this basic question to the Municipal Court and we should not carry "the niceties and formalities of practice and pleadings" to such an extent as to defeat the Municipal Court's exclusive jurisdiction of this question of the amount to be paid by a father for the support of his children. The determination of the amount these children should receive from their father for their support is not a question which should be dealt with by two different trial courts. Such an interpretation of the statute would be absurd and unreasonable, and the legislature is presumed never to intend such result. Statutory Construction Act of May 28, 1937, P.L. 1019, § 52, 46 PS § 552.
A consideration of the Municipal Court Act and the opinions of this Court relative thereto leads to the conclusion that the present case falls within the jurisdiction of the Municipal Court.
The jurisdiction of the Municipal Court in support matters is not limited to a consideration of criminal proceedings for the support of children, Scott v. Scott, 80 Pa. Super. 141 (1922). In the Scott case this Court held that the Municipal Court Act superseded process under the Act of May 23, 1907, P.L. 227, which authorized a wife to bring her action at law or in equity against a husband for maintenance in the court of common pleas of the county where the desertion occurred or where she was domiciled. In that case the wife had filed a bill in equity under the Act of 1907 in the Court of Common Pleas of Philadelphia County, *172 which bill was dismissed since exclusive jurisdiction of that type of action in Philadelphia County had been vested in the Municipal Court.
By Section 11 of the Municipal Court Act, the Municipal Court was given exclusive jurisdiction of support proceedings brought under the Penal Code of June 24, 1939, P.L. 872, 18 PS § 4733, in which separation agreements have been altered: Commonwealth ex rel. Rey v. Rey, 159 Pa. Super. 284, 48 A.2d 131 (1946); Commonwealth ex rel. Voltz v. Voltz, 168 Pa. Super. 51, 76 A.2d 464 (1950); of a wife's bill in equity or support and maintenance, Scott v. Scott, supra; of a wife's action in assumpsit or monies expended from her separate estate for the support of herself and children, Adler v. Adler, 171 Pa. Super. 508, 90 A.2d 389 (1952); and of assumpsit initiated by foreign attachment of a husband's spendthrift trust to recover for necessaries purchased, Gessler v. Gessler, supra, 181 Pa. Super. 357, 124 A.2d 502 (1956).
Appellant, in her reply brief, cites Ashbaugh v. Ashbaugh, 167 Pa. Super. 368, 75 A.2d 13 (1950). In that case a wife-mother sued the husband-father on an agreement similar to the one in this case. The suit was in assumpsit in the Allegheny Court of Common Pleas rather than in the County Court of Allegheny County. Appellant here maintains "The jurisdiction of the County Court, so far as men who have neglected their families are concerned, is precisely the same as that of the Municipal Court of Philadelphia. . ." This assertion ignores the decision of the Supreme Court in Kemnitzer v. Kemnitzer, 335 Pa. 105, 110, 6 A.2d 571 (1939), in which the Supreme Court speaking through Justice, later Chief Justice, MAXEY stated: "In Scott v. Scott, 80 Pa. Super. 141, 143, that court held that the exclusive jurisdiction conferred on the Municipal Court of Philadelphia in all proceedings for maintenance superseded process under the Act of May 23, *173 1907, P.L. 227 (supra), but that was because the act creating the Municipal Court conferred exclusive jurisdiction over such cases, even in equity. `The County Court of Allegheny County,' on the other hand, `is a substitute for its court of quarter sessions in desertion proceedings and is expressly given exclusive jurisdiction over them.' Commonwealth v. Speer, 267 Pa. 129, 133, 110 A. 268. It is not a substitute for its court of common pleas sitting in equity in proceedings for maintenance, for no jurisdiction was conferred on it to supersede the process under the Act of 1907 (supra)." (Emphasis supplied)
The present case, if brought in Allegheny County, would fall within the jurisdiction of the Court of Common Pleas of that county, because the County Court was given no equity jurisdiction. In Philadelphia County the Municipal Court was given equity jurisdiction and that court has jurisdiction of this question. Should the appellant in this case sue the appellee for recovery of payments due under the agreement as occurred in the Ashbaugh case, the suit would be in the Municipal Court of Philadelphia and not in the Court of Common Pleas as the appellant contends. Scott v. Scott, 80 Pa. Super. 141, supra.
Were the appellant's contentions in this case upheld, we would have the anomalous situation in which the Municipal Court would have jurisdiction of all matters relating to support with the sole exception of a case brought by a father to reform a separation agreement involving more than $5000. Were the husband in this case to simply stop making payments altogether under the support agreement, there can be no question that the matter would of necessity be disposed of in the Municipal Court whether the wife should seek regress under the agreement or under the support statutes. Were support payments being made under an order of court rather than an agreement, the order *174 would of necessity have been entered by the Municipal Court and a petition to alter the order would likewise have been within the exclusive jurisdiction of the Municipal Court whether initiated by appellant to reduce the amount or initiated by the appellee to increase it. It is abundantly clear from the statutes, from the cases and indeed from simple logic that the Municipal Court has, and that the legislature intended they should have, jurisdiction over matters concerning a father's obligation to support his children, including this action.
The order of the court below holding the Municipal Court to have jurisdiction is affirmed with a procedendo.
NOTES
[1] Except as it relates to appeals, this act is suspended by the Rules of Civil Procedure. See Rule 1550(19), 12 PS § 372, and Goodrich-Amram Civil Practice § 1509-1.
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475 S.W.2d 699 (1972)
Lawrence Jo Jo SCOTT, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5667.
Supreme Court of Arkansas.
February 7, 1972.
*700 Louis W. Rosteck, Little Rock, for appellant.
Ray Thornton, Atty. Gen., James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.
GEORGE ROSE SMITH, Justice.
In the court below, charges of rape and assault with intent to kill were tried together by the circuit judge, without a jury. The appellant was found guilty of both offenses and was sentenced to life imprisonment upon the charge of rape and to twenty-one years imprisonment upon the second charge.
The appellant first questions the sufficiency of the evidence to support either conviction. Before narrating the proof we should explain that the State was handicapped in presenting its case by its inability to produce an eyewitness to either crime. The victim of the asserted rape was a two-year-old child, too young to testify. The victim of the assault was the child's father, Tal Daniell, but he was killed in an automobile accident before the case was tried.
On the afternoon of August 16, 1970, witnesses saw Scott (the defendant), Daniell, and the child leave Sims' Cafe, near Little Rock, in a truck. The three were seen a short time later at the nearby home of Scott's aunt, Dora West, who testified that Scott made an effort to sell a tire to Daniell, but the tire offered was not the right kind. Mrs. West also testified that a.25-caliber pistol owned by Scott was still in a drawer in her house when the officers came to investigate later that day.
The sequence of events is not completely clear, but apparently Scott was next seen in the neighborhood at the home of Mrs. West's daughter, Essie Duff. Mrs. Duff testified that while she was sitting in her yard Scott went in her house, came out again, and left. Mrs. Duff's sister had put a .38-caliber pistol in a drawer in Mrs. Duff's house, but Mrs. Duff testified that Scott did not know the weapon was there, nor did she see that Scott was carrying anything when he left.
Back at Sims' Cafe, about thirty minutes after Scott and the other two left in the truck, bystanders at the cafe heard a shot down in the woods. Daniell and his daughter then drove up in the truck. Daniell was calling for help, saying that he had been shot (though the proof does not show what part of his body was hit). The child was standing up in the truck with blood running down both her legs. Later that afternoon Mrs. West talked to Scott by telephone and, with his consent, picked him up and turned him over to the deputy sheriffs, who were looking for him. Scott's sister testified that when she visited him at the jail that night Scott said that he had not touched the little girl. He also said that while he and "the man" were tussling, "the gun went off," which so scared Scott that he left the truck and ran away.
That same night the officers obtained the .38-caliber pistol that Essie Duff's sister, Elsie Harris, had left at Mrs. Duff's house. The pistol was in the drawer where it was kept, fully loaded except that one shot had been fired. Mrs. Harris testified that she had not fired the pistol. An officer testified that the weapon smelled as if it had been recently fired. The officers found a .38-caliber bullet lodged in the cab of the truck, but it was too extensively damaged to be identified as having come from any particular gun.
We find the proof insufficient to support a conviction for assault with intent *701 to kill. The evidence to sustain such a charge must show a specific intent to kill. Francis v. State, 189 Ark. 288, 71 S.W.2d 469 (1934); Davis v. State, 115 Ark. 566, 173 S.W. 829 (1914). In the case at bar the State's proof is fatally deficient in that respect. Since we are remanding the case for a new trial, for other errors, we shall not speculate upon what lesser included offense might be sustained by the proof.
On the other hand, we find the evidence sufficient to sustain a conviction for rape. The child's vaginal area was so severely lacerated that Dr. Porter had to examine her by means of a general anesthetic. The lacerations had bled profusely. Dr. Porter stated that the entrance to the vagina suggested that the laceration was not large enough to have admitted a penis, but an attempt at entry might have been made, causing the injuries. The injuries might also have been caused by any other object, including a finger, or by a fall. There was testimony by the officers that when Scott's undershorts were removed that night they were stained with what appeared to be freshly dried blood. It is immaterial that the clothing in question had been misplaced by the officers and could not be introduced in evidence, for a witness may describe a tangible object even though it is not physically present in the courtroom. Washington v. State, 248 Ark. 318, 451 S.W.2d 449 (1970). Upon a charge of rape, proof of the slightest penetration is sufficient. Cabe v. State, 182 Ark. 49, 30 S.W.2d 855 (1930). Here we find the proof adequate to sustain the conviction.
The judgments, however, must be reversed for another reason. At the time of his arrest Scott was duly warned of his constitutional rights and refused to make any statement. About three months later a deputy sheriff who was passing the cell where Scott was confined asked him, in the course of what appears to have been a bantering conversation, if he had raped the little girl. Scott replied, "Yeah." The trial court allowed proof of that question and answer and evidently attached some weight to it.
The evidence should have been excluded. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the court stressed the fact that any waiver of the accused's constitutional right to remain silent and to have the assistance of counsel must be made "voluntarily, knowingly, and intelligently." In that connection the court went on to say:
The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.
A confession made by a person in custody is presumed to have been involuntary. Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968). We certainly cannot say that the warning given to Scott some three months earlier had the effect of demonstrating that his admission to the officer was made voluntarily, knowingly, and intelligently, with a conscious awareness that it might be used against him. Hence, under Miranda, that proof should have been excluded.
Finally, when the defense rested its case without Scott's having testified, the trial judge stated that he was going to find Scott guilty and "give him life on the rape and twenty-one years on the assault to kill *702 and let them run concurrently." The court then, over the objection of counsel, encouraged Scott to take the witness stand and give his explanation of the matter. After some further colloquy between court and counsel, Scott took the stand and gave a rather implausible exculpatory version of what had happened. Since we are reversing the judgment for another reason, we need not say whether the court's action would by itself have required a reversal of the conviction now under review. It is manifest, however, that Scott's testimony can be said to have been voluntarily given only in the sense that he hoped to make a favorable impression upon the very judge who had already announced his finding of guilty and his intended sentence. Consequently Scott's testimony cannot be considered for other purposes and therefore cannot be used by the State upon a retrial of the case.
Reversed and remanded for a new trial.
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425 F. Supp. 151 (1977)
Lynn ARGO et al., Plaintiffs,
v.
Carla HILLS, Individually and as Secretary of Housing and Urban Development of the United States, et al., Defendants.
No. 76 C 1969.
United States District Court, E. D. New York.
January 13, 1977.
*152 Rosenstein & Kahn, New York City, for plaintiffs.
David G. Trager, U. S. Atty., E.D.N.Y. by Prosper K. Parkerton, Asst. U. S. Atty., Brooklyn, N.Y., Squadron, Ellenoff & Plesent, W. Bernard Richland, Corp. Counsel, Ellis S. Franke, Gen. Counsel, Conciliation and Appeals Bd., New York City, for defendants.
*153 OPINION and ORDER
PLATT, District Judge.
This case involves the complex interplay of the New York City rent control laws, the National Housing Act, and the Due Process Clause. It comes before this Court on cross-motions for injunctions to prohibit or order the payment of certain rent increases.
FACTS
Birchwood Towers #1 and Birchwood Towers #2 ("Birchwood Towers") are multifamily housing projects located in Forest Hills, New York. The plaintiffs in this action are various individual tenants of Birchwood Towers and the Birchwood Towers Tenants Association, Inc. ("Tenants"). The defendants are the owners and operators of Birchwood Towers ("Landlord"), Carla Hills as Secretary of the Department of Housing and Urban Development ("HUD"), the Conciliation and Appeals Board of the City of New York ("CAB") which is authorized to administer the Rent Stabilization Code, and the Housing and Development Administration of the City of New York ("HDA"), which is the agency charged with the administration of the Rent Stabilization Law and with supervising the CAB.
Birchwood Towers is a middle income development built in 1963 which was financed by two mortgages totaling nearly sixteen million dollars. These mortgages were endorsed and guaranteed by HUD pursuant to § 207 of the National Housing Act, 12 U.S.C. § 1713. As a condition of guaranteeing the mortgages, HUD required the Landlord to sign a regulatory agreement which allows HUD to control the Landlord's activities as to "rents or sales, charges, capital structure, rate of return, and methods of operation to such extent and in such manner as to provide reasonable rentals to tenants and a reasonable return on the investment." 12 U.S.C. § 1713(b)(2).
In 1969 the New York City Rent Stabilization Law and Rent Stabilization Code ("rent control laws") became effective and Birchwood Towers joined the Rent Stabilization Association and became subject to those laws. At that time, apparently in order to comply with HUD's regulatory agreement, the Landlord put into all leases for apartments at Birchwood Towers a rider which provided that should HUD approve or require a rental charge greater than that approved or required by the CAB under the local rent control laws, the tenant would pay the federally approved rental immediately.
On November 4, 1974, the Landlord applied to CAB for hardship rent increases allowable under § 43 of the Rent Stabilization Law of the City of New York. Under Chapter XIII of that law if the tenants wish to contest the landlord's application, they have an opportunity to submit forms showing "any incorrect matter or items contained in the owner's application." R.S.L. Chap. XIII 2. At this point if "there are many tenants involved who are making the complaint or claim, or if the factual situation is very involved, the CAB may determine a hearing is necessary." R.S.L. Chap. XIII 1. See also Rules of the Conciliation and Appeals Board promulgated October 10, 1969.
In this case, since the Landlord's application, the CAB has requested various information from the Landlord, but there is some dispute whether the Landlord has fully complied with those requests and thus whether their application for the hardship increase was ever complete. In any case, as of the date of this opinion the CAB has not granted the Landlord any increase in rent.
On February 6, 1975, the Landlord filed an application for rent increases with HUD. On July 23, 1975, HUD approved rent increases so that the annual rental for Birchwood Towers would be $3,795,104. The maximum permitted under CAB regulations was $3,256,288. On September 9, 1975, the Landlord requested CAB to issue the necessary orders to permit the Landlord to collect the HUD approved rents.
On October 22, 1975, HUD adopted a regulation concerning the authority of local rent control laws over HUD projects. 24 C.F.R. § 403 (1975). That regulation provides *154 in relevant part that "HUD will preempt the regulation of rents for such projects when the Department determines that the delay or decision of a board, or other authority regulating rents pursuant to state or local law, jeopardizes the Department's economic interest in the project." 24 C.F.R. § 403.5 (1975).
In order for Landlord to have HUD preempt the local rent control laws under the above regulation, the Landlord must file an application for increases in rent with HUD and notify the local board, in this case the CAB, of that application. If the local board does not act within 30 days and HUD determines that the delay will jeopardize the Department's interest in the guaranteed mortgager, HUD issues "a formal certification that it has pre-empted local rent controls as to such rents in order to protect the Department's economic interest in the project. Copies of the certification shall be transmitted to the mortgagor, the local HUD office, the Regional Office, and the board." 24 C.F.R. § 403.6(e). Nowhere in this pre-emption process are the tenants of the HUD projects allowed any opportunity to be heard.
On May 7, 1976, the Landlord requested HUD to issue a certificate of pre-emption pursuant to 24 C.F.R. § 403. On May 26, 1976, HUD advised CAB that it was imperative that CAB render a decision on the Landlord's hardship application or HUD would consider issuing certificates of preemption for Birchwood Towers.
On June 29, 1976, CAB advised HUD that the Landlord had not completed his application for hardship increases and further (letter from CAB to HUD, June 29, 1976):
"in the event the owner qualifies for a comparative hardship increase under the provisions of the Rent Stabilization Law, the rent increase granted the owner in any hardship order would be collectible in an amount not exceeding 6% in any one year (above guidelines) with any balance due the owner collectible in succeeding years at a rate similarly not exceeding 6%. Moreover, the Rent Stabilization Law limits the owner to no more than one hardship order in any 36 month period."
On September 1, 1976, HUD issued the certificates of pre-emption and beginning on November 1, 1976, the Landlord sought to collect the HUD approved increases both from tenants signing new leases and, by way of the pass through rider discussed above, from tenants who had unexpired leases as of November 1, 1976.
On October 19, 1976, the Tenants filed the complaint in this action seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that HUD's pre-emption order was void, and seeking to enjoin the Landlord from collecting the increased rents approved by HUD pursuant to 5 U.S.C. § 701, et seq.
Next, both sides filed orders to show cause returnable November 5, 1976, requesting preliminary injunctions. On November 5 and again on November 12 this Court heard extensive oral argument and then reserved decision. In order to maintain the status quo, on November 12, 1976, this Court signed an order consented to by both sides requiring that the plaintiffs pay to their lawyers as escrow agents the difference between the current lease rental or the CAB guidelines rental and HUD approved rents pending the Court's decision in this matter. This order also provides that should the HUD approved rents eventually be upheld, notwithstanding any lease then in effect, the tenants shall have the right to vacate the premises.
I
The first issue before the Court is the plaintiffs' argument that HUD's preemption of local rent control was invalid because the pre-emption regulation, 24 C.F.R. § 403 (1975) goes beyond HUD's Congressionally delegated powers. Due to the recent promulgation of that regulation, the only case that has decided that issue is City of Boston v. Hills, 420 F. Supp. 1291 (D.Mass.1976), which held that this regulation was consistent with statutory authority and was a necessary and reasonable means *155 of carrying out that authority. Except as modified by our due process analysis below, we adopt the reasoning and conclusion of that case on this point.
II
The plaintiffs further argue that even if the regulation was valid, it was improperly invoked in this case because there was no real conflict between local rent control laws and HUD's rent increases because the Landlord could have achieved the needed increases under the rent control laws. This position is not supported by the facts. First, the Landlord applied to CAB for hardship rent increases in 1974 and has received no action over two years later. Plaintiffs argue that this is because the Landlord has not completed his application to CAB, but the Landlord disputes this. Assuming, however, that the Landlord has not completed his application, there is still a conflict, as CAB admits in its letter of June 29, quoted above, that the maximum allowable increase the Landlord could receive under the Rent Stabilization Law in any one year was 6%. HUD had already authorized a much greater increase than that, and so if HUD, after the due process procedures described below, decides again in favor of pre-emption, then the regulation will have been validly invoked.
III
The plaintiffs argue that even if local rent control is properly pre-empted, the new rents can only apply to tenants whose leases have expired. The Landlord argues that the pass through rider he inserted in leases in 1969 allows him to pass on to all tenants any HUD approved rent increases. The tenants argue that this type of pass through provision is invalid under local rent control laws. We do not need to decide that issue because if HUD validly pre-empts local rent control, the leases are no longer governed by those laws. Thus, if HUD validly pre-empts the local rent control laws, the Landlord may pass on any HUD authorized increases to tenants with existing leases, with the limitation that as provided in this Court's order of November 12, 1976, all tenants shall have the option to vacate the premises.
IV
The last and most difficult question presented by this case is whether HUD can validly pre-empt local rent control and then allow the imposition of HUD authorized rent increases without affording the tenants who have to pay those increases due process of law. This due process question is best broken down into a three step analysis as follows: (1) is there sufficient government involvement to invoke the due process clause; (2) is the tenants' interest in not having HUD pre-empt the local rent control laws and then increase their rents a constitutionally protected "property interest"; and if so (3) what procedural safeguards does due process require to protect that interest. See Geneva Towers Tenants Org. v. Federated Mortgage Inc., 504 F.2d 483 at 487 (9th Cir. 1974); Note, Procedural Due Process in Government-Subsidized Housing, 86 Harv.L.Rev. 880 (1973).
In the leading Supreme Court cases in the area of the due process clause, the issue of sufficient government involvement has not even arisen as it was clear from the facts that the government had acted.
Thus in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), welfare benefits were being cut off under federal and state programs, and in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), a state college was firing teachers. Further, the courts have had no trouble finding government involvement where the state is owning or operating the housing project. Burr v. New Rochelle Municipal Housing Authority, 479 F.2d 1165 (2d Cir. 1973); Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970); Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir. 1970), cert. denied, 401 U.S. 1003, 91 S. Ct. 1228, 28 L. Ed. 2d 539 (1971). The problem *156 arises here because of the nature and structure of the National Housing Act and its amendments. These amendments during 1960's provided for federally subsidized rental housing programs and were passed "in response to growing dissatisfaction with the results that had been achieved by conventional public housing programs; the hope was that private, profit motivated parties could build and operate housing more effectively than the public housing bureaucracies, which were accused of rigidity and inefficiency." Note, Procedural Due Process in Government Subsidized Housing, supra, at 883. See Langevin v. Chenango Court, Inc., 447 F.2d 296, 301 (2d Cir. 1971).
The federal subsidies took several different forms. Among the more important were the § 221(d)(3) below market interest rate mortgage program, 12 U.S.C. § 1715l (d)(3), the § 236 interest reduction payments program, 12 U.S.C. § 1715z-1, the § 202 direct loans at below market interest rates program, 12 U.S.C. § 1701q, and a "Rent Supplement Program", 12 U.S.C. § 1701s, which allows HUD to make direct payments to the landlords of projects involved in the above programs so that eligible low income individuals and families can afford the rentals of those projects. Finally, there is the program involved in this case, the § 207 program, 12 U.S.C. § 1713, which allows HUD to guarantee the mortgages of projects.
The leading cases in this Circuit involving these programs and the due process clause are Langevin v. Chenango Court, Inc., 447 F.2d 296 (2d Cir. 1971), and Grace Towers Tenants Assoc. v. Grace Housing Development Fund Co., Inc., 538 F.2d 491 (2d Cir. 1976). Chenango Court involved a § 221(d)(3) program where the government had authorized the landlord to increase rents without any due process guarantees to the tenants. The Second Circuit held that because HUD had merely "allowed the landlord to institute an increase upon the termination of existing tenancies, as the landlord would have been legally free to do but for its regulatory agreement with the FHA", therefore this was not government action and the due process clause was not involved. Chenango Court, supra, at 301.
In Grace Towers the project was not only subsidized by a below market interest rate mortgage under § 221(d)(3), but also received rent supplementation payments for 10% of the tenants pursuant to 12 U.S.C. § 1701s. Here again, HUD authorized and the landlord imposed rent increases. The Court did not decide the issue of whether there was sufficient government involvement, but rather held that even if there was, the tenants had "no legitimate claim of entitlement upon which due process protections may attach." Grace Towers, supra, at 495. Thus, it is not clear whether the programs in Grace Towers constitute sufficient government involvement to invoke due process protection.
In our case, however, the government involvement was through a § 207 program where only the mortgages were guaranteed. Inasmuch as the program is even less intrusive than the § 221(d)(3) program in Chenango Court where the government actually subsidizes the mortgages so that they bear below market interest rates, it is clear that the § 207 program standing alone in this case would be insufficient government involvement to invoke due process protection. In fact, this Court has so held in Klein v. Department of Housing & Urban Development, 416 F. Supp. 615 (E.D.N.Y. 1976).
However, in this case HUD did more than simply "allow" the landlord to raise rents. HUD pre-empted local rent control laws pursuant to 24 C.F.R. § 403 (1975). It is this positive action which distinguishes this case from Chenango Court and Klein. In fact, the following language from Chenango Court seems to say that where there is local rent control and preemption the due process clause is invoked; Langevin v. Chenango Court, Inc., 447 F.2d 296 at 301 (2d Cir. 1971) (emphasis added):
"The due process clause does not forbid Congress from deciding, if it wishes, that federal assistance to `private industry in providing housing for low and moderate income families and displaced families' in *157 the form of insurance and purchase of low interest mortgages need not be conditioned on the granting of an evidentiary hearing with respect to rent increases, but, in the absence of some governmental scheme of rent control, whether general or particularized, may instead be confided to the decision of the experienced staff of the FHA, which has been instructed to subject rent increase applications to thorough investigation to the end that tenants should not be imposed upon."
Thus, we hold that there was sufficient government involvement here to invoke the due process issue.
The next step in our analysis is whether the tenants' interest in not having HUD pre-empt the local rent control laws and then allowing the Landlord to increase their rents rises to the level of a constitutionally protected "property interest."
The Supreme Court in recent years has greatly expanded the concept of constitutionally protected property. In Goldberg v. Kelly, supra, the right to welfare benefits was held to be property. In Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975), a pupils interest in attending school was held to be property. In Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), the right to a driver's license was given due process protection. Unfortunately the Supreme Court has not ruled on the question of whether the right to low rents in a National Housing Act project is such a right. Some courts have held there was such a right. Marshall v. Lynn, 162 U.S. App.D.C. 56, 497 F.2d 643 (1973), cert. denied, 419 U.S. 970, 95 S. Ct. 235, 42 L. Ed. 2d 186 (1974); Geneva Towers Tenants Org. v. Federated Mortgage, Inc., 504 F.2d 483 (9th Cir. 1974). Other courts have held there was no such right. Grace Towers, supra; Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970); Paulsen v. Coachlight Apartments Co., 507 F.2d 401 (6th Cir. 1974); People's Rights Organization v. Bethlehem Associates, 356 F. Supp. 407 (E.D.Pa.), aff'd 487 F.2d 1395 (3d Cir. 1973).
Our decision, of course, is controlled by the recent Second Circuit opinion in Grace Towers to the extent that it applies. The key language in that case is as follows, 538 F.2d at 494 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548) (emphasis added):
"These tenants could not reasonably expect that they were to be forever immunized from rent increases; nor, could they legitimately expect an opportunity to participate in a decision-making process which Congress confided to the experienced discretion of the Secretary. Without at least some Congressionally prescribed restrictions on the agency's action or a practice giving rise to a legitimate expectation, we are constrained to find that plaintiffs' interest in the benefit of low-cost housing does not rise above `an abstract need or desire for it . . ..'"
As our case involves only § 207 guarantee of mortgages which is less intrusive than the programs in Grace Towers, we must hold that there was no property interest involved here unless this case fits into the exception spelled out in the emphasized language above. This language of a "practice giving rise to a legitimate expectation", presumably is derived from the Supreme Court cases of Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). In Roth the Supreme Court held that a non-tenured teacher who had not been rehired did not have a sufficient property interest in continued employment to invoke due process. In Sindermann the Court held that a non-tenured teacher could invoke due process protection because "the respondent claimed legitimate reliance upon guidelines promulgated by the Coordinating Board of the Texas College and University System that provided a person, like himself, who had been employed as a teacher in the state college and university system . . some form of job tenure." Sindermann, supra, 408 U.S. at 600, 92 S.Ct. at 2699. The distinguishing characteristic between Roth and Sindermann was that the teacher in Sindermann legitimately relied on guidelines, *158 and thus had the expectation that he would not be fired without due process being followed.
Similarly, in this case the tenants had legitimately relied on the Rent Stabilization Law and had the expectation that their rents would not be increased without the procedures provided for in that law being followed. To use the words of the Second Circuit, the procedures provided for in the Rent Stabilization Law were "a practice giving rise to a legitimate expectation", Grace Towers, supra, at 494. Therefore, when HUD pre-empted the local rent control laws, it destroyed the tenants reliance on those laws and shattered their legitimate expectation that the procedures provided for would be followed before their rents were increased. Therefore we hold that HUD could not pre-empt the Rent Stabilization Law without providing the tenants with due process protections.
Having held that due process was invoked here, we come to the third step in our analysis, namely, what procedural safeguards does due process require in this case. In cases involving rent increases such as this one, the Second Circuit has held that full adversary-type hearings are not required. Burr v. New Rochelle Housing Authority, 479 F.2d 1165 (2d Cir. 1973); see Grace Towers, supra, at 495. Rather, what is required is a balancing of HUD's interest in having a summary procedure against the interest of the tenants in disputing the landlord's application for pre-emption. Further, this Court is aware that the purpose of the National Housing Act amendments was "to promote `the construction of housing by private enterprise'", Langevin v. Chenango Court, Inc., 447 F.2d 296, 301 (2d Cir. 1971). Thus there appears to be no basis for overly burdening HUD and the private landlord with extensive procedures so that private enterprise will be discouraged from investing in these projects. In reaching the proper balance we note that in response to the decisions of a number of Circuits that due process was required in raising rents at various National Housing Act projects, HUD has promulgated a regulation, 24 C.F.R. 401 (1975), that provides for some due process protections before rents can be increased under certain programs including the § 221(d)(3) programs involved in Chenango Court and Grace Towers. Unfortunately this regulation does not apply to the § 207 program involved here for then this whole controversy might never have arisen.
In any case, we find in § 401 some evidence of what HUD finds not unduly burdensome. Under that section the landlord must notify the tenants thirty days before applying for rent increases and during that time the tenants can inspect the landlords application and material in support thereof and submit written comments on the proposed increases to HUD. No oral presentation is provided for. This result is similar to the plan laid down in Burr v. New Rochelle Municipal Housing Authority, 479 F.2d 1165, 1170 (2d Cir. 1973), where the Court held as follows:
"Notice of a proposed increase in rent shall be served well in advance of the date for the increase. Opportunity for filing written objections shall be given. There need be no opportunity for oral presentation. The tenants or their representatives shall have the right to submit any material they consider relevant to disprove the need for the rent increase. Finally, the Review Board upon reaching a decision shall issue a statement outlining the reasons for either approving or rejecting the requested rent increase. The tenants may of course be represented by counsel."
A similar result has been reached by several courts. See Caramico v. Secretary of H.U.D., 509 F.2d 694, 701-702 (2d Cir. 1974); Keller v. Kate Maremount Foundation, 365 F. Supp. 798 (N.D.Cal.1972), aff'd 504 F.2d 483 (9th Cir. 1974).
In reliance on Burr and Caramico we find that in order for HUD to pre-empt the local rent control laws involved here and to allow rent increases, it must give the tenants an opportunity to inspect the landlord's application and to submit to HUD written objections or reasons why HUD *159 should not pre-empt local rent control and any material in support thereof. After considering these submissions, HUD shall, in a written decision, outline why pre-emption is necessary or unnecessary.
If HUD finds that pre-emption is unnecessary then the money being held by the escrow agents shall be returned to the tenants who paid it. On the other hand, if HUD finds pre-emption necessary, then the escrow agents shall pay the money to the landlord. Keller v. Kate Maremount Foundation, 365 F. Supp. 798, 804 (N.D.Cal.1972), aff'd 504 F.2d 483 (9th Cir. 1974); Ponce v. Housing Authority of County of Tulare, 389 F. Supp. 635, 656 (E.D.Cal.1975). Further, if HUD finds pre-emption necessary, then the tenants shall pay the HUD authorized increases with the option contained in this Court's Order of November 12, 1976, to vacate the premises. In the meantime, that Order remains in effect.
Finally, the landlord also moves for dismissal of the plaintiffs' sixth and seventh causes of action and for an order under F.R.C.P. 23(b)(1)(A) so that this action will be maintained as a class by all the tenants of Birchwood Towers. Our decision on the due process issue should be dispositive of this case so we do not reach the question of dismissing the sixth and seventh causes of action.
As for the class action motion, the Landlord has requested class action treatment under Rule 23(b)(1)(A) which provides for class action where there is the risk of inconsistent verdicts. However, it is not clear that such a risk exists, but the Court does think that this is a proper class under 23(b)(3). The Court is aware of the suggestion in the Manual for Complex Litigation § 1.401 (1975) that suits for determination of the constitutionality of a federal statute or regulation should not be treated as a class action. Compare Ihrke v. Northern States Power Co., 459 F.2d 566, 572 (8th Cir. 1972), with Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir. 1972), and Hammond v. Powell, 462 F.2d 1053 (4th Cir. 1972). However, as this case also involves the issues of whether there is in fact a conflict between the HUD authorized rents and the CAB authorized rents and whether the pass through rider in the leases were valid, the class action method would appear to be a superior method for handling this action. Therefore, the Court makes the following findings: the class of tenants in this case is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, the claims and defenses of the representative parties are typical if not identical with the class, and the representative parties will fairly and adequately protect the interests of the class. Also the Court finds that the common questions of law and fact predominate over any individual claims and that a class action is the superior method for a fair and efficient adjudication of the controversy. The class shall be defined as tenants of the Birchwood Towers from September 1, 1976 to the date of this opinion. For a similar result with similar facts and findings in another tenants suit, see Ponce v. Housing Authority of the County of Tulare, 389 F. Supp. 635 (E.D.Cal.1975).
Since it is the Landlord who has requested the class action, they must submit, for approval, to this Court within two weeks a proposed notice to the class members which should include the requirement of Rule 23(c)(2)(A), that the class members can request exclusion within 30 days of service. Further, the Landlord shall, within 2 weeks of this Court's approval of the notice to class members, serve all class members with that notice.
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475 S.W.2d 51 (1971)
STATE of Missouri, Respondent,
v.
Charles McKINNEY and Leroy Mayes, Appellants.
Nos. 55746, 55747.
Supreme Court of Missouri, Division No. 2.
December 13, 1971.
Motion for Rehearing or to Transfer Denied January 10, 1972.
*52 John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Robert H. Dierker, St. Louis, for Charles McKinney, appellant.
Harry L. Bell, St. Louis, for appellant Leroy Mayes.
Motion for Rehearing or to Transfer to Court En Banc Denied January 10, 1972 in No. 55746.
PRITCHARD, Commissioner.
In a consolidated trial, appellants were found guilty of murder in the first degree. The jury was unable to assess the punishment and the court set it at life imprisonment for each appellant. On this appeal each appellant has filed a brief.
About 6:00 p. m. on December 4, 1968, Claude Johnson, Tom Croce, Mike Lograsso and a customer were in Mike's Restaurant at 2030 North Market Street in St. Louis, Missouri. An employee, Elizabeth Catron, was also there, but was back in the kitchen. Four men came in and ordered Claude, Tom, Mike and the customer to lie on the floor. Then they took money out of the cash register, and from Mike and Tom, and after that they shot Mike and Tom. Claude recognized one of the men he later found to be Walter Berry, and also recognized a man he knew as Willie Brannon. A third man came in with a double-barreled shotgun in his hand. Claude knew the man at the time, but not his name. He later determined that he was Charles McKinney. The fourth man was also known to Claude except for his name. His name was also later determined by Claude to be Larry Fair. Claude made an in-court identification of Charles McKinney as being the man who was present with the shotgun. It was Berry who took the money from the cash register, and from Mike Lograsso whose death resulted from a gunshot wound inflicted by Berry. Claude identified the shotgun, State's Exhibit 6, which was held by McKinney. McKinney had a mask over his face, but Claude could see a scar through it.
On direct examination by the state, Mary Jones testified that she lived at 2334 North Market, a block from the Lograsso Restaurant, on December 4, 1968. About 6:00 o'clock that evening she was home with her children. "Q. Who else was there besides you? A. Me and my kids and Walter Berry, Leroy Wright and Larry Fair, Charles McKinney and Judo, I don't know his name." At that time Mary saw a small gun and a shotgun which were held by Larry Fair. Walter Berry had the pistol, and said he was going to hold up the restaurant. They all left about 6:30 that evening, and about 7:00 to 7:30 Walter Berry came back to Mary's house with Larry Fair, and she thought that Charles McKinney also came back. Berry said that he shot him, and in response to that remark the others said that he did not have to shoot him. Mary testified further on direct examination that Leroy Mayes was not there that night.
On cross-examination by Mayes' counsel, Mary testified that Leroy Mayes was present that night when all the men left, along with Charles McKinney. Then she testified on cross-examination that she did not see Leroy Mayes at or just before 6:00 o'clock, but that the last time she saw him was about 3:30 p. m. that day, and "Q. With reference to Charles McKinney, I'm asking you whether or not you're positive or whether or not you know whether this young man was in your home on the evening of December 4th, 1968, somewhere between five-thirty and six-thirty p. m., do you know? A. No, he wasn't there." With respect to her testimony in the trial of one of the other men, Mary was asked, "Do you recall testifying that Charles McKinney was not among the group of fellows in your house on that date? A. Come to think of it, I think he was."
At this point the state asked permission to treat Mary Jones as a hostile witness on the ground that she had given statements to the officers that at about 6:00 o'clock Roy, Berry, Tate, McKinney and Fair were at her house and left, taking the shotgun *53 with them; that Mayes could have been at her house, but she did not know; and that in another trial she testified that at the time the planning took place and afterwards both Mayes and McKinney were present. The court ruled that, in view of Mary's conflicting statements, the state was entitled to cross-examination. On further examination by the state Mary testified that she remembered telling the police officers that McKinney was there when the robbery was planned, and that she remembered giving counsel for the state a statement in which she told him that Charles McKinney was there at her house, and that she was telling the truth. On the further examination, she testified she was sure that Charles McKinney was there when the holdup was planned. On further cross-examination by Mayes' counsel, Mary acknowledged that on "direct" examination she testified that McKinney was not there, but on thinking back he was there, but she was not sure that he came back after the holdup. She further acknowledged that she testified that McKinney was not there, a different fact than she maintained on this trial.
Verbie West testified on direct examination for the state that she lived at 2339a Madison on December 4, 1968, when at about 6:30 p. m. McKinney, Mayes and Fair and some others came to her house. At the time they came up with a rifle or a shotgun, but she was not sure which one had it. "Q. Are you sure McKinney didn't have it, are you positive? A. To my knowledge, he didn't; but I'm not sure." The state was then permitted to ask Verbie if she had not given a statement to counsel that she thought McKinney had the gun, "if I'm not mistaken." "Q. With that to refresh your recollection, do you recall in your mind what occurred? Can you tell me now to the best of your recollection who had this shotgun on December 4th, when they came to your house? A. If I remember correct, Charles McKinney had it." On cross-examination by Mayes' counsel, Verbie testified that she thought Charles had the shotgun, but she was not positive.
Lieutenant Ernest Troupe testified that he took a statement from Mayes, before which he was advised of his rights, using a card to do so. Mayes read the card form, said he understood, did not request a lawyer, and stated he would answer Troupe's questions. No promises or threats were made to Mayes. Mayes denied that he was advised of his rights. After the hearing on the matter outside the hearing of the jury, the court found the statement was voluntary and that the Miranda warnings were given. Detective James Dowd advised McKinney of his Miranda rights before he was interrogated by Detective James King, and McKinney stated he understood his rights and wanted to make a statement relative to the Lograsso case. McKinney himself acknowledged that he was advised of his rights by Officer Oscar Farmer shortly after his arrest. The court likewise found McKinney's statement was voluntarily made.
Before the jury, Troupe testified that Mayes told him he and several other Negroes went to Mary Jones' house and discussed robbing Lograsso. Mayes stood outside the restaurant as a lookout while four others went inside. He heard a shot, and returned to the house. Walter Berry came in shortly and they split the money, Mayes getting three dollars as his part. Dowd testified that McKinney stated he was in on the robbery planning, divided the loot, but remained outside the restaurant while the other four went in.
Asking for a new trial on the basis of newly discovered evidence since this appeal, appellant Mayes says that Walter Berry, who was in the penitentiary prior to trial, signed an affidavit that Mayes had nothing to do with the robbery. Berry had pleading guilty to killing Lograsso. He says he could not have approached Berry prior to trial because he was then in the penitentiary.
*54 Mayes says in his brief that the newly discovered evidence did not come to counsel's attention until October 6, 1970, after the motion for new trial was overruled on May 5, 1970. The judgment is of course final, and this court will not consider the ground for the first time raised here, nor follow the novel suggestion that the case should be remanded for the trial court to consider the same. See State v. Johnson, Mo., 286 S.W.2d 787, 795[21]; State v. Worley, Mo., 353 S.W.2d 589, 596[12]. Appellant Mayes' separate point as to this matter is overruled.
Both appellants say that the court erred in permitting the state to examine Mary Jones as to her prior statements given to the police officers and to the prosecutor. But both misconceive the facts as to what happened at the trial with respect to the order of Mary's examination. They say that the state's examination of Mary was an impermissible impeachment of her testimony under such cases as State v. Burks, 132 Mo. 363, 34 S.W. 48, and State v. Hogan, 352 Mo. 379, 177 S.W.2d 465. See also Douglas v. Alabama, 380 U.S. 415, 419, 85 S. Ct. 1074, 13 L. Ed. 2d 934, State v. Drummins, 274 Mo. 632, 647, 204 S.W. 271, 276, and State v. Gordon, Mo., 391 S.W.2d 346, 349, condemning the practice of impeaching one's own witness by the use of prior statements made by the witness. These cases, however, are not applicable to the state's redirect examination of Mary Jones. As noted, Mary gave testimony on cross-examination which was contradictory to her direct examination, as above appears. The state was not impeaching its own witness. "On redirect examination a witness may properly be interrogated as to facts, circumstances, or any matter tending to refute, weaken, or remove inferences, impressions, implications, or suggestions which might result from testimony or inquiries on cross-examination, although the facts brought out may be prejudicial to the other party. * * * Where there is a real or apparent inconsistency in the testimony of a witness, he may be questioned on redirect examination to straighten out the inconsistency, and for this purpose he may be asked questions tending to refresh his memory, such as whether or not he made certain statements before the trial. * * *." 98 C.J.S. Witnesses § 419c, d, pp. 223, 224. See also 58 Am.Jur. Witnesses, § 562, p. 314; and the civil cases of Couch v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 617, 623[7-9]; and Cooley v. St. Louis Public Service Co., Mo.App., 236 S.W.2d 31, 35[3]. The Couch case says that the matter of permitting redirect examination rests largely in the discretion of the court. Under the circumstances and the foregoing authority the redirect examination of Mary Jones was not improper, and of course there was no abuse of the court's discretion in permitting it.
The cross-examination of witness Verbie West by the state occurred during the state's direct examination of her. The Burks, Hogan and Gordon cases above may be distinguished by reason of the apparent fact that Verbie's testimony was equivocal, uncertain or evasive. The reference to Verbie's statement was specifically made to refresh her obviously faulty recollection, a permissible purpose. 98 C. J.S. Witnesses § 578b, pp. 538, 539; State v. Renfro, Mo., 408 S.W.2d 57, 59[1]; and State v. Patton, 255 Mo. 245, 164 S.W. 223, 225[4, 5]. No error appears by reason of the examination of Verbie West of which only McKinney complains.
McKinney says the court erred in admitting in evidence testimony of police officers covering admissions he had made to them. He says his own testimony showed that the admissions were not voluntarily made. The record shows that McKinney was fully advised of his rights according to the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. Thereafter he stated he understood the same and wanted to make a statement. The court, therefore, did not err in admitting the testimony of the police *55 officers, and by Instruction No. 6 the jury was fully advised as to the fact issue of voluntariness of the admissions.
Prejudicial error is claimed by McKinney by reason of the state's closing argument about the prevalence of crime in the communitythat there were 285 homicides committed in the City of St. Louis during 1969; that every citizen was in fear of his life; and other inflammatory remarks. He says there was no evidence that he was charged with any crime in 1969, and in fact he was in jail all that year. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, cited by McKinney, had to do with deterrence of future acts of the defendant himself if he were convicted, and thus is to be distinguished. The matter of law enforcement, the prevalence of crime in the community, the personal safety of inhabitants of the city, and the jury's duty to uphold the law and to draw inferences from its failure to do so, have long been held to be subjects of legitimate argument by the state. See State v. Elbert, Mo., 438 S.W.2d 164, 166[4], and cases cited. Nor is it necessary that such arguments have support in the evidence. State v. Cheatham, Mo., 340 S.W.2d 16, 20[11, 12]. The reference to "black people and white people and decent people and murderers" claimed to be inflammatory was this portion of the state's argument: "* * * but this you can do, is to say to Mike Lograsso and the people of this community he isn't going to die like a dog and cast his life aside by these two men or anyone like them. This is a human being and despite Mr. Crawford's efforts, this isn't an argument between black people and white people, it's between decent people and murderers and it's up to you, the citizens of this community, to say by your verdictthere were two hundred and eight-five murders last year[Objection overruled] that the citizens of this community are going to have a right to live." It is clear that the state's argument had nothing to do with a race issue as a reason for conviction, but with the matter of conviction under the facts which the state had a right to urge.
Witness Claude Johnson at one place described State's Exhibit 6 as a sawed-off shotgun. It appears that the exhibit was a full-length shotgun. McKinney says that the court should have excluded the exhibit because of Claude's description. There was no objection to Claude's testimony, and the matter is therefore not preserved for review. State v. Lovelace, Mo., 461 S.W.2d 733, 735[1].
The judgments are affirmed.
BARRETT and STOCKARD, CC., concur.
PER CURIAM:
The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.
All of the Judges concur.
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475 S.W.2d 469 (1971)
Glenn SHULL, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
October 15, 1971.
Rehearing Denied February 18, 1972.
*470 Joseph G. Glass, Louisville, for appellant.
John B. Breckinridge, Atty. Gen., David E. Murrell, Asst. Atty. Gen., Frankfort, for appellee.
OSBORNE, Judge.
On February 13, 1965, a burglar alarm serving the Sears Roebuck store in Owensboro, Kentucky, and connected to the police station went off. In response to the alarm, two police officers started in the direction of the Sears Roebuck store. When they approached within less than one block of the store, they came upon Glenn Shull and Norman Hood coming down the street from the direction of the store. It was past midnight; the streets were empty. The officers noticed that when the suspects saw the police car they started to run (there is a dispute as to *471 whether both started to run or only one of them). When they ascertained the officers had them under surveillance they then attempted to walk casually as if nothing had happened. The officers stopped the two suspects and asked them to identify themselves. At this point appellant Shull kept standing between one of the officers and Hood, thereby obstructing the officer's view of Hood. The officer testified that the appellant appeared at this time to be nervous and when asked to step in front of the patrol car the headlights of the car revealed a shiny object in Hood's hands. At this point, the officer grabbed Hood's arm in anticipation that the object might be a weapon. Upon grabbing Hood's arm, the officer felt what turned out to be tire tools concealed in his sleeve. Both suspects were then placed under arrest and searched. The tools, which appellant now insists should not have been introduced in evidence, were found during the course of the search.
Appellant now contends that the arrest was made without probable cause and, therefore, the burglary tools found as a result of the search were not admissible in evidence. We see no reason to spend a great deal of time in analyzing the foregoing facts to determine if they constituted probable cause under which the officers could effect the arrest. Probable cause exists when the facts and circumstances within the arresting officers' knowledge or of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been committed or is being committed. Appellant cites a whole ream of federal court opinions on the subject as if the courts of this Commonwealth had not been dealing with it. We have for many years held that before an officer can effect an arrest he must have "reasonable grounds" for believing the person has committed a felony. We have held that reasonable grounds as here used mean practically the same as the words probable cause as used in Section 10 of our Constitution, which forbids the issuing of a search warrant unless supported by an affidavit showing probable cause. Mattingly v. Commonwealth, 197 Ky. 583, 247 S.W. 938; Smallwood v. Commonwealth, 305 Ky. 520, 204 S.W.2d 945. In elaborating on the meaning of probable cause, we have held the reasonable and probable grounds that justify arrest without a warrant are such as would actuate a reasonable man acting in good faith. Commonwealth v. Riley, 192 Ky. 153, 232 S.W. 630. For a complete discussion of these matters see Brewster v. Commonwealth, Ky., 278 S.W.2d 63, p. 64. First and foremost when we consider appellant's contentions here that the facts did not constitute probable cause, we are met squarely with the proposition that the trial court found as a fact that they did. This finding was supported by competent evidence and, therefore, cannot lightly be set aside. Secondly, when we view the facts independently of and aside from the trial court's finding, we are immediately struck with the idea that not only did the officers have probable cause for arresting appellant and his companion upon the occasion, but had they not arrested them at that time the officers would probably have been considered by most fair-minded persons as derelict in their duty. For these reasons, we believe appellant's contention that there was not probable cause to effect the arrest is totally without merit. All evidence discovered in the search is accordingly admissible.
Appellant next contends that the trial court in a series of rulings would not permit him to testify on the hearing to suppress evidence without subjecting himself to full cross-examination thereby depriving him of his rights under the Fifth Amendment not to be required to testify against himself. We are required to respect appellant's rights under the Fifth Amendment, as Section 11 of the Constitution of Kentucky provides that no person *472 shall be caused to give evidence against himself. We construe this section to be as broad, if not broader, than the rights protected by the Fifth Amendment under the Federal Constitution. So, the question before us is: Can a defendant, when testifying on a motion to suppress, be subjected to unlimited cross-examination and this evidence used as substantive evidence in the case? We believe the answer is clear that the Commonwealth can take no such advantage. If the defendant is introduced as a witness on a motion to suppress, cross-examination should be limited to those matters testified to on direct. We find ourselves in agreement with the appellant as to the law.
Our procedure did not make provision for a pretrial motion to suppress evidence until 1968. See Freeman v. Commonwealth, Ky., 425 S.W.2d 575. For this reason we have never had an occasion to pass upon the question concerning the extent of cross-examination of an accused when testifying in such proceeding. Appellant relies on Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247. We have examined that case and believe it fairly treats of the question before us insofar as it holds that, when a defendant testifies in support of a motion to suppress, his testimony may not thereafter be admitted against him at the trial on the issue of guilt unless he fails to object. We are also of the opinion that cross-examination on such occasion should be limited to and directly related to those matters testified to on direct examination. However, our construction of the facts in this case do not conform with the construction placed upon them by the appellant. As we read the facts, the trial court was striving to interpret the law just as we have outlined it. But, be that as it may, appellant's counsel took him from the stand and did not permit him to be cross-examined. For that reason, we do not now believe that he can be heard to complain that he was denied his constitutional rights. The proper procedure, where an accused is testifying on a motion to suppress, is to submit himself to cross-examination and if and when cross-examination exceeds the bounds which we have outlined he can refuse to answer the questions. At this point the court will be clearly presented the problem as to whether the question exceeds the bounds of proper examination. Since appellant did not submit himself to cross-examination, we do not believe he can now be heard to say that he was deprived of his rights under the fifth amendment or, what would be the more proper contention, under Section 11 of the Constitution of Kentucky.[1]
Appellant contends that the trial court erred in permitting the Commonwealth to refer to his accomplice by name and further erred in some off-hand reference to a joint enterprise and in making inquiry as to whether the appellant was going to take the stand. Without writing at length on these problems, we have examined them carefully and we find no error connected with them. In Walton v. Commonwealth, Ky., 439 S.W.2d 953, we held it was not error for the trial court to inquire in the presence of the jury if the appellant was ready to proceed and that such inquiry by the trial court did not infringe on the appellant's Fifth Amendment rights against any reference to his choice *473 of remaining silent. We are of like opinion here that inquiry by the court of counsel as to whether appellant would take the stand was innocently made and did not amount to a comment on appellant's failure to testify. In Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, commenting generally on this matter of exchanges by the court and counsel within earshot of the jurors, we stated:
"* * * we cannot believe there is any substantial possibility that in consigning a man to the penitentiary twelve decent people would be influenced in the slightest degree by so trivial a circumstance."
We are of the same opinion in this case. Counsel for appellant takes exception to circumstances of no real importance in the course of a trial and magnifies them so that one is reminded of the old saw about "mole hills into mountains." We see no merit in his contentions concerning references to Norman Hood in a joint enterprise or inquiry of the court concerning whether the appellant would testify.
His final contention is that the trial court erred in allowing the indictment to be read to the jury wherein the appellant was charged as an habitual offender under KRS 431.190. Appellant contends that when evidence of previous offenses is introduced this violates the rights of the accused under the fifth and sixth amendments to the Constitution of the United States in that it allows the accused to twice be placed in jeopardy for the same offense. He insists that we should adopt the rule adopted by the state of Tennessee in Harrison v. State of Tennessee, 217 Tenn. 31, 394 S.W.2d 713 (1966). We met and disposed of all of these issues in Cole v. Commonwealth, Ky., 405 S.W.2d 753. We have not determined to depart from that rule.
Judgment affirmed.
All concur.
NOTES
[1] Brief for appellant cites various sections of the federal Constitution and a long list of federal decisions on each of the points presented. All of the rights which he asserts are protected by the Constitution of Kentucky and have on numerous occasions been interpreted by the courts of this jurisdiction. A federal question is not raised in criminal prosecutions until such time as the basic state law fails to reach the standards required by federal law. This court receives very little help from briefs that cite only federal law since opinions must be prepared by the court on the basis of the law of this jurisdiction.
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57 N.J. Super. 53 (1959)
153 A.2d 854
THE NATIONAL STATE BANK OF NEWARK, ET AL., PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS,
v.
LUCILLE NADEAU, NOW KNOWN AS LUCILLE BENNETT, ET AL., DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued April 13, 1959.
Decided July 23, 1959.
*58 Before Judges GOLDMANN, CONFORD and FREUND.
Mr. Harry Dvorken argued the cause for defendants-appellants and cross-respondents, residuary legatees Evelyn Fluet et al.
Mr. Willaim Howe Davis argued the cause for defendant and cross-respondent Lucille Nadeau (Bennett) (Messrs. Howe & Davis, attorneys; Mr. Thomas A. O'Callaghan, on the brief).
Mr. Milton M. Unger argued the cause for defendant-respondent and cross-appellant Annette Nadeau, executrix of Dorilas Nadeau (Messrs. Milton M. and Adrian M. Unger, attorneys).
Mr. Marshall Crowley argued the cause for defendant-respondent and cross-appellant R. Arthur Nadeau, individually (Messrs. Toner, Crowley, Woelper & Vanderbilt, attorneys; Mr. Robert A. Matthews, on the brief).
*59 Mr. Israel B. Greene argued the cause for plaintiffs-respondents and cross-appellants, The National State Bank of Newark et al., executors (Mr. Murry Brochin, on the brief).
The opinion of the court was delivered by GOLDMANN, S.J.A.D.
The executors of the estate of Ross Nadeau brought a Chancery Division action seeking construction of certain terms of decedent's will and also approval of their accounting. The residuary legatees appeal from that part of the final judgment determining that the residuary estate must pay administration expenses as well as the New Jersey transfer inheritance tax which the widow, a beneficiary under the will, would have had to pay but for testator's instruction that she be exonerated therefrom. Testator had designated his son Arthur and his brother Dorilas as specific legatees; Arthur and Dorilas' executrix cross-appeal from the determination that they must contribute to the federal estate tax in amounts proportional to their benefits under the will. The executors also cross-appeal, challenging that part of the judgment which awarded less than the full amount of the commissions they requested.
Ross Nadeau died a resident of this State on July 24, 1953, leaving a will dated May 4, 1953 and duly admitted to probate. Surviving him were his widow Lucille Nadeau (now Bennett) and his son by a former marriage, R. Arthur Nadeau. The net estate amounted to about a million dollars.
By paragraph Second of this will testator left one-half of his adjusted gross estate, as finally determined for federal estate tax purposes, to the widow. His obvious purpose was to take full advantage of the marital deduction formula in section 812 of the Internal Revenue Code of 1939 (26 U.S.C.A.), now section 2056 of the 1954 Code, 26 U.S.C.A., which permits one-half of a decedent's taxable estate to pass tax-free to his surviving spouse. See In re Kantner's Estate, 50 N.J. Super. 582, 587-588 (App. *60 Div. 1958). Clearly underscoring that intention, he declared in paragraph Second:
"* * * It is my intention hereby to give to my wife the maximum value in property, but no more, that may be deducted from my estate as the marital deduction under the applicable Internal Revenue Code. * * *"
By paragraph Third testator bequeathed all his stock in Club Razor & Blade Manufacturing Corporation (a privately held corporation in which he held a two-thirds interest) in equal shares to his son Arthur and brother Dorilas, directing that the bequests "shall be construed as specific legacies."
By paragraph Fourth the residue of the estate was devised and bequeathed in equal shares to ten named beneficiaries, one an employee and the others relatives of decedent.
In addition to the property which passed under the will, testator had two life insurance policies, one payable to the widow, who eventually received $61,922.69, and the other to Arthur, who received $16,645.92. These amounts were included in computing the gross estate for federal tax purposes.
Paragraph Sixth of the will contains the language that has led to the present controversy over the payment of taxes charged against the estate. It reads:
"I direct that my wife as legatee and devisee under this will, and as transferee of any property outside of this will, or as beneficiary of any proceeds of life insurance on my life, and of any annuity policy purchased by me, shall not be liable and shall not be called upon to reimburse my estate for any portion of the Federal estate taxes or New Jersey inheritance taxes on property which may constitute part of my gross estate, it being my intention that she shall have all of said property, insurance proceeds and annuity entirely tax free.
As to all other legatees and devisees hereunder and beneficiaries under life insurance on my life, there shall be an apportionment of said taxes, in accordance with the laws of the State of New Jersey."
The will named Arthur, John F. McNamee (a friend and business associate), and The National State Bank of Newark, *61 N.J., co-executors. They duly qualified. Their account covers the period July 24, 1953 to October 10, 1957.
We shall first consider the tax apportionment questions raised, and then the issue of executors' commissions.
I.
Under the marital deduction arrangement adopted by testator, the widow's share of the estate is by hypothesis exempt from federal estate tax. But it is not exempt from our state transfer inheritance tax. Since the latter is a succession tax, laid directly upon the transfer of property under the will rather than upon the estate itself, the widow would normally be required to pay it. Turner v. Cole, 118 N.J. Eq. 497 (E. & A. 1935); Goldman v. Goldman, 2 N.J. Super. 412 (Ch. Div. 1949); Case v. Roebling, 42 N.J. Super. 545 (Ch. Div. 1956). Here, however, testator in the first section of paragraph Sixth expressly directed that she be exonerated from payment a direction which all parties agree is fully effective to accomplish its purpose. The question is, who shall pay the state tax? Is it to be apportioned among the residuary beneficiaries and the two specific legatees, or paid from the residue, the specific legacies remaining unabated unless and until the residuary estate is exhausted?
The second tax apportionment question concerns the federal estate tax which must be borne by the estate, but it raises essentially the same problem. Shall the residuary estate, to the extent of its capacity, be charged with the entire federal tax, or should it be apportioned among all the beneficiaries, except the widow?
We deal with the federal estate tax issue, since its resolution sheds light upon the state transfer inheritance tax question.
The federal estate tax is imposed upon the estate as a whole. A testator may, of course, place the ultimate burden of the tax wherever he chooses by the terms of his will. *62 With two exceptions the question of whether a testator has, by his will, shifted the tax burden or whether the tax should be imposed as provided by law is for determination by the courts of the state of his domicile. Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106, 142 A.L.R. 1131 (1942); Hale v. Leeds, 28 N.J. 277 (1958). (The two exceptions relate to powers of appointment (26 U.S.C.A. § 2207) and to the proceeds of insurance policies on decedent's life (26 U.S.C.A. § 2206).) Under Riggs, the Federal Government is not concerned with the distribution of the tax among the testamentary beneficiaries; its only interest is that the tax be collected.
In the absence of an expressed intention by the testator to the contrary, the law of this State is that the tax is payable in the same manner as are other debts and administrative expenses from the residuary estate. Turner v. Cole, above, 118 N.J. Eq. 497 (E. & A. 1935). A contrary testamentary instruction will, however, be given effect. Morristown Trust Co. v. McCann, 19 N.J. 568 (1955).
Turning to paragraph Sixth of the will, we find testator's main intention clearly expressed in the first section: his widow is to pay no estate taxes whatever, state or federal. Directly following this, testator in the second section declares that as to all other legatees and devisees under the will, as well as beneficiaries of insurance policies on his life, "there shall be an apportionment of said taxes." Had the paragraph ended with these words there would have been no problem, for it would then have been clear that testator was directing an apportionment of the federal tax among the residuary legatees and the two specific legatees of the Club Razor & Blade stock. But he continued and said, "in accordance with the laws of the State of New Jersey." Since, under New Jersey law, there is no apportionment of federal estate taxes as to property passing under a will, in the absence of a direction to that effect, N.J.S. 3A:25-30, 31, 33, the second section of paragraph Sixth poses a seeming contradiction.
*63 The assumption is, of course, that testator intended all his words to have some meaning, and none to be mere excess verbiage. It is our function to reconcile, if possible, the apparent contradiction in this language so as to invest it with a consistent and reasonable meaning, and thereby give effect, as best we can, to the testamentary intention. Greene v. Schmurak, 39 N.J. Super. 392, 401 (App. Div. 1956); Brooks v. Goff, 127 N.J. Eq. 115, 118 (Ch. 1940).
The Chancery Division judge construed the closing words of paragraph Sixth, "in accordance with the laws of the State of New Jersey," as being merely testator's way of indicating that he was exercising a power granted him under our statutes. That is, he was saying, "The laws of New Jersey give me the power to direct an apportionment, and I hereby exercise that power."
While this view on the surface saves the construction below from the condemnation of treating the clause mentioned as surplusage, the explanation is not a satisfactory one. Although the words, "in accordance with the laws of the State of New Jersey," might conceivably serve a useful purpose in a situation where the law is unclear and the draftsman wants to underscore the fact that certain language is being used in a strict legal rather than in a lay sense, no such problem exists here.
It has long been settled that a New Jersey testator has the power to direct apportionment of the federal tax to be levied on his estate. See, e.g., Gaede v. Carroll, 114 N.J. Eq. 524 (E. & A. 1933); Morristown Trust Co. v. McCann, above, 19 N.J. 568. That power unquestionably existed when the will was drawn, as any experienced scrivener would well know. The Nadeau will is a carefully drawn instrument, fully exposing the testamentary pattern and reflecting an appreciation of estate problems. We perceive no reason why a draftsman as skilled as the one who prepared the will before us would want to state the obvious fact that the testator had the very power he had just exercised in the clause immediately preceding the words under consideration. *64 This, together with the fact that the words used would not normally convey the meaning the trial judge ascribed to them in his attempt to reconcile what appeared to be a contradiction, leaves us unconvinced, upon a reading of the entire will, that this is what the testator actually intended.
We find the argument advanced by the specific legatees and the executors far more persuasive. Their position is that the direction for apportionment contained in the second section of paragraph Sixth means that there should be apportionment only to the extent that New Jersey law, exclusive of any express testamentary direction, demands it. Thus, the state transfer inheritance tax would be "apportioned." (We recognize that this is not a strictly accurate statement of the effect of our Transfer Inheritance Tax Act, since that tax is levied directly on the transfer of property, and is by its very nature "apportioned" among the beneficiaries.) Also applicable would be the provisions of N.J.S. 3A:25-30, 31 and 33, which, in the absence of a testamentary direction to the contrary, require apportionment of the federal estate tax attributable to property which does not pass under the will but is nevertheless included in the adjusted gross estate for federal tax purposes. The insurance benefits payable to testator's son Arthur is an example of such property. (Arthur concedes that he must pay the federal tax attributable to these monies.)
The executors and the specific legatees insist that it is only the state transfer inheritance and federal estate taxes attributable to property not passing under the Nadeau will that were to be apportioned in accordance with New Jersey law. The testator intended and directed this apportionment, and nothing more. In other words, they contend that the words he used were merely a shorthand reference to the laws of New Jersey. Where the law called for apportionment there was to be apportionment; where it said no apportionment, there was to be none.
*65 This argument quite naturally raises the question of why testator said anything, rather than merely letting the law take its course. The executors' answer is that the words "in accordance with the laws of the State of New Jersey" were intended to "negate any inference of presumptive intent which might otherwise have been drawn from the other parts of the will under the state of the law as it existed when the will was executed * * *." They point out that under the artificial rules of construction prevailing prior to the decision in Morristown Trust Co. v. McCann, 19 N.J. 568 (decided in 1955; the will was executed May 4, 1953), the direction that the widow be relieved of all succession taxes might well have been considered, in the light of the maxim expressio unius, exclusio alterius, as manifesting an intention to subject all other legatees to the burden of paying their respective shares of federal and state taxes, including estate taxes which otherwise would be paid out of the residue. See Gaede v. Carroll, above, 114 N.J. Eq., at pages 533-534 (E. & A. 1933); Commercial Trust Co. of N.J. v. Thurber, 136 N.J. Eq. 471, 475 (Ch. 1945); affirmed per curiam 137 N.J. Eq. 457 (E. & A. 1946); Montclair Trust Co. v. Spadone, 139 N.J. Eq. 7, 8 (Ch. 1946). That there was, in 1953, a legitimate ground for fearing that such would be the construction given to the apportionment language of paragraph Sixth is made manifest by a reading of the cited cases.
We agree with the construction advanced by the executors and the specific legatees. It gives meaning to all the disputed language. Further, in contrast to the interpretation given by the trial court, which leaves unanswered the question why a skilled draftsman would employ completely unnecessary language, it provides a reasonable basis for his use of the disputed words and results in a substantively logical reading of the entire apportionment section. It comports with the testamentary intention to be ascertained within the four corners of the will, Morristown Trust Co. v. McCann, above, 19 N.J. at page 572, and the provisions of *66 our law relating to the payment of death taxes, N.J.S. 3A:25-30 et seq., specifically limited by its terms to property passing outside the will.
We therefore conclude that the federal estate tax, except for the proportionate amount thereof attributable to the insurance proceeds paid the son, should not be apportioned among all the beneficiaries but must be borne by the residuary estate.
We turn to a consideration of the source of payment of the New Jersey transfer inheritance tax levied on the widow's share of the estate, in view of the testator's direction that she be absolved therefrom.
The contention of the residuary legatees that the state tax should be apportioned between them and the specific legatees is based on what they consider to be the direction contained in the last sentence of paragraph Sixth that all taxes shall be apportioned. We have just concluded that this provision does not require an apportionment except where New Jersey law calls for it. The argument of the residuary legatees falls with its premise. It is entirely clear that the testator did not direct apportionment of the state tax attributable to the widow's interest. Accordingly, the tax must be treated as would any other charge against the estate. It should be paid from the residue, which must first be exhausted before any recourse can be had to the specific legacies. Turner v. Cole, above, 118 N.J. Eq., at page 502.
Although the trial judge held that the federal estate tax should be apportioned among all legatees, specific and residuary, he concluded that the state transfer inheritance tax attributable to the widow's interest must be borne by the residuary estate. In his view, the second section of paragraph Sixth, relating to apportionment, had no application to the taxes which the widow would have had to pay but for testator's direction that she be exonerated. The apportionment provision, he said, was applicable only to those taxes assessed against property passing to "all other legatees and devisees" than the widow. Since testator had given *67 no direction as to who should pay the state tax on the widow's share, it was to be borne by the residue, in accordance with prevailing New Jersey law.
We agree. Even had we concluded otherwise than we did as to the proper apportionment of the federal estate tax we would still have to hold that the state transfer inheritance tax on the widow's share should not be apportioned, but paid from the residue. Cf. Righter v. Fidelity Union Trust Co., 110 N.J. Eq. 169 (Ch. 1932); In re Deutz, 105 N.J. Eq. 671 (Prerog. 1930); N.J. Title Guar. and Trust Co. v. Smith, 90 N.J. Eq. 386 (Ch. 1919); see also Parrot v. Rogers, 86 N.J. Eq. 311 (Ch. 1916).
Our construction of paragraph Sixth, on both the points just considered, finds strong support in what we conceive to be the general testamentary plan exhibited by the will. Without question, testator's main concern was that his widow receive the maximum amount available to her, tax-free, under the marital deduction provision of the Internal Revenue Code. This is admitted by all here involved. His second main concern, as appears from the language of the will (paragraph Third) was that his principal business interest, Club Razor & Blade Manufacturing Corporation, pass on to those who were next nearest to him his son, who was being groomed to take over the enterprise, and his brother Dorilas, who had been closely associated with him in many business ventures. This two-way legacy was expressly designated as specific. It is reasonable to believe that testator looked forward to the business being continued by these two men, although he foresightedly gave his executors full power to sell, pledge or hypothecate the Club Razor & Blade shares and to liquidate the business "for the administration of this estate and the payment of taxes." In this connection we recall that son Arthur and testator's life-long company associate, John F. McNamee, who was supervising Arthur's training, were named executors of the will.
Consideration of the entire will, and particularly paragraph Third, indicates that it was unlikely that testator *68 intended to have his son and brother, whose only substantial legacies were the shares in this corporation, pay a portion of the federal estate tax, or the state transfer inheritance tax levied on the widow's share. Had this indeed been his intention he must have realized that he would thereby be encouraging a sale of the stock to enable the legatees to raise enough to meet taxes. The state tax concededly payable by the two men on the interests they took under paragraph Third is relatively small in comparison with the federal tax, and the tax on the insurance passing to the son could be paid from the proceeds of the policy. This limited apportionment would not be likely to frustrate the continued family operation of the business, as would the full apportionment of all taxes contended for by the residuary legatees. Testator's designation of the bequests of the stock as "specific legacies" also gives support to the conclusion that he wanted them to pass unabated, if at all possible.
II.
Ross Nadeau's gross estate was computed for federal tax purposes at $1,319,437. At the time the executors submitted their accounting, the adjusted gross estate for tax purposes the gross estate less debts and funeral and administration expenses (Internal Revenue Code of 1939, 26 U.S.C.A., 812(e)(2); Code of 1954, § 2053) was $943,764.91. The total income which had come into the hands of the executors was $65,847.19. This included $26,400 in net rent receipts from the Abbey Towers Apartments building which testator owned at the time of his death.
The executors requested total commissions of $56,852.46. They arrived at this figure on the basis of a commission of 7% (5% plus 1% for each of the two additional executors) on a corpus of $892,668.35, or $53,560.10, and a 5% commission on income of $65,847.19, or $3,292.36.
The trial judge included as corpus certain items in addition to those used by the executors in their calculations and fixed the total figure at almost exactly $1,000,000. *69 He then concluded that $45,000 was a fair and equitable allowance for corpus commissions. In making the award the judge commented that this amounted to about 4 1/2% of corpus, emphasizing that he was not setting the commission at that percentage but "merely using that as an indication in fixing the allowance at $45,000." He further said that ordinarily he would have awarded only $35,000, but the fact there were two additional executors who would share in the allowance had induced him to add an additional 1%.
As to the income commissions, the court allowed the 5% requested on all income except the $26,400 net rentals derived from the Abbey Towers Apartments. Inasmuch as the executors had employed a real estate agent to manage the building and paid him 5% of the gross rents he collected, the court deemed it appropriate that they receive but 2 1/2% of the net rentals he had turned over to them. Of this, more below.
Although the executors were allowed commissions amounting to approximately 84% of what they requested, they maintain that the amounts awarded them were "grossly inadequate." Further, they allege errors in the method by which the court computed the commission.
As to the commissions on corpus. N.J.S. 3A:10-1 and 2, as amended by L. 1957, c. 80, §§ 1, 2, was the statute in effect at the time of the accounting. It was therefore controlling in the circumstances. Blauvelt v. Citizens Trust Co., 3 N.J. 545, 560 (1950). Under N.J.S. 3A:10-1 allowance of commissions on corpus in excess of $100,000 is to be made with reference to the executors' "actual pains, trouble and risk in settling the estate, rather than in respect to the quantum of the estate." N.J.S. 3A:10-2 provides that where the corpus exceeds $100,000, a commission of 5% shall be allowed on the first $100,000, and on any excess above that sum "such percentage, not in excess of 5%, as the court may determine * * *, according to actual services rendered." This section also provides that if there *70 is more than one fiduciary, "the court may allow corpus commissions in excess of the commissions to which 1 fiduciary would be entitled under this section, at a rate not exceeding 1% of all corpus for each additional fiduciary." (Italics ours.)
From this it is clear that any allowance greater than the minimum of $5,000 (5% of the first $100,000 of corpus), was to be determined in the light of "actual services rendered" and with reference to the "actual pains, trouble and risk in settling the estate." The fixing of corpus commissions that will fairly compensate fiduciaries for their efforts is a matter left to the court's discretion. The allowance will be set aside only where there has been an abuse of that discretion. In re Rogers, 13 N.J. 508, 512 (1953); Ditmars v. Camden Trust Co., 10 N.J. 471, 499 (1952). We will not disturb the award unless the court below was manifestly in error, i.e., where the commission allowed, fairly considered, was grossly inadequate.
The executors have fallen far short of demonstrating that the award was grossly inadequate. Although they maintain that administration of the estate involved unusually complex problems and a considerable amount of time and work on their part, they have not provided us with anything more specific than statements that particular projects took a "great deal of time," a "number of conferences," and descriptions of equal vagueness. We shall not discuss in detail the problems referred to by the executors except to say that many of them were obviously matters for counsel, who discharged them ably and well, and who requested and received a well-earned fee of $35,000. Further, even if the administration were more difficult than what appears, we have not been shown why an award of $45,000 in corpus commissions, when the executors asked $53,560.10, should be considered grossly inadequate.
The executors also argue that the Chancery Division judge "overlooked the implication of the 1957 amendment" to N.J.S. 3A:10-2. Prior to the amendment the statute *71 provided that if there were more than two fiduciaries, the court might allow corpus commissions "in excess of 5% at a rate not exceeding 1% for each additional fiduciary." Thus, with three executors the maximum allowable commission under the statute prior to amendment was 6%.
The 1957 amendment, as noted, permits the court to add 1% for each fiduciary over one. The maximum allowable commission is now 7%. From the fact that the judge said he would normally have awarded only $35,000 in corpus commissions, but was adding 1% because there were three executors, the executors argue that he was mistakenly referring to the pre-1957 statute. Implicit in this argument is either the conclusion that the court was required to add 1% for each fiduciary beyond one, or that had the judge been aware of the amendment he would have added another 1% to the commissions allowed.
Any suggestion that N.J.S. 3A:10-2 might be construed as mandatory in this respect is patently without merit. The statute says only that the judge "may" so increase the commissions. It obviously does not require him to do so.
The argument that the trial judge was unaware of the change in the statute and would have granted an additional 1% had he known of it amounts to little more than an invitation that we join the executors in the realm of sheer speculation. The judge did not indicate that he believed he was giving the maximum additional commission because of the plurality of executors. Under the pre-1957 statute, the maximum allowance would have been 6%, and yet he awarded but 4 1/2%. There is nothing in what the judge said that would indicate he was unaware of the provisions of the recent amendment, or that he would have granted greater commissions but for an erroneous reliance on a statute no longer in effect. He made it quite clear that in awarding $45,000 he was not proceeding on a percentage basis. Only after announcing the dollar figure did he indicate that it amounted to about 4 1/2% of corpus.
*72 Further, if at the time the judge rendered his oral opinion counsel for the executors believed the court was relying on statutory provisions no longer applicable, the proper procedure was to call attention to the error then and there, rather than say nothing and subsequently seek appellate reversal on grounds entirely speculative.
We have, nonetheless, thoroughly reviewed the record to assess the quality and extent of the services rendered, their necessity, whether they were properly to be performed by the executors or were in fact the responsibility of their counsel, the risks involved, and the results achieved. We find the award of $45,000 as corpus commissions entirely reasonable and fair.
III.
The question of the executors' right to commissions on income that came into their hands is more complex. Until 1957, N.J.S. 3A:10-2 provided that executors shall receive commissions of 5% "on all income that comes into their hands, * * * without court allowance." L. 1957, c. 80, § 2, amended this section to increase the commission to 6%.
We have heretofore mentioned that in their accounting the executors charged themselves with income of $65,847.19. Of this, $26,400 represented net rental receipts from Abbey Towers Apartments; the remaining $39,447.19 came from miscellaneous sources. The executors sought commissions of 5% on the total. The court awarded them 5% of the $39,447.19 miscellaneous income, but only 2 1/2% of the $26,400 rent receipts.
Some days after the court had refused to award the full amount requested, counsel for the executors for the first time suggested that the commission on the Abbey Towers' income should be computed on the basis of the gross rentals collected by the agent, rather than the net income he had turned over to the executors. In rejecting the proposal the trial judge pointed out that to do so would, even if one were to compute the commissions on gross income *73 at 2 1/2%, give the executors a much larger commission than the 5% of net income actually requested by them. (They had sought total income commissions of $3,292.36. Their subsequent request for 2 1/2% of the Abbey Towers gross rentals of $141,823.78, when added to the 5% commission on the miscellaneous income, would give them total income commissions of $5,517.95.)
In paragraph Second of the will, testator, after giving his widow half of his adjusted gross estate, declared it to be his "intent and direction" that as part of the property constituting the marital deduction she should receive the Abbey Towers Apartments as well as the marital dwelling. He then said:
"* * * To effectuate this intention and direction, I give, devise and bequeath to my wife all my right, title and interest in and to the aforesaid real estate."
At the time of testator's death there was some doubt as to whether his estate was sufficiently large that one-half of the adjusted gross estate could include both parcels of real estate. All parties agreed that, under a proper construction of the will, if the value of these properties exceeded half the adjusted gross estate, the widow could not receive both parcels, but the devise of at least one of them would have to abate.
The widow occupied the marital residence under her statutory right of quarantine. N.J.S. 3A:35-4. To meet the problem of administering Abbey Towers until it could be ascertained whether she would receive the property, the widow agreed with the executors that they retain control of the apartment building, remit to her about half the net rents, and deposit the remainder in the general estate account. This arrangement continued for some two years, after which time it became clear that the devise would not have to abate. The property was then turned over to the widow.
To manage Abbey Towers during this two-year period, the executors retained the services of the real estate agent who had managed the property during testator's lifetime. (As *74 to their right to do so, see In re Van Riper, 90 N.J. Eq. 217, 219 (Prerog. 1919); 6 N.J. Practice (Clapp, Wills and Administration) (1950), § 504, p. 452; and see Greene v. Schmurak, above, 39 N.J. Super., at pages 405-406.) He collected the rents and from them paid taxes, repairs and employees' salaries, as well as what fell due on the mortgage. For this he received compensation of 5% of the gross rents. These totalled $141,823.78. After deducting expenses and his commission, the agent periodically remitted the net rents to the executors, and these totalled $26,400.
On their cross-appeal the executors renew their claim to income commissions based on the gross rentals collected by the Abbey Towers managing agent. Their position is that the property passed to them under the will, in trust for the widow on the condition that the devise to her need not abate; that the managing agent was their agent, and in contemplation of law the rentals he received had passed "into their hands"; that they are therefore entitled to the statutory commission on the gross amount. This argument must, of necessity, proceed on the assumption that the word "income" in N.J.S. 3A:10-2 refers to gross income, rather than net income.
The executors rely on the County Court decision in In re Emery, 14 N.J. Super. 243 (1951), which held that where a trustee collected rentals from estate properties and paid taxes, insurance premiums, repairs and maintenance expenses therefrom, he was entitled to statutory commissions on the gross rents. The opinion recognizes, however, that "executors who carry on a business of the testator are entitled to commissions on the net profits of the business and not on the gross income." (at page 246) See also, Latorraca v. Latorraca, 132 N.J. Eq. 40, 48-49 (Ch. 1942), affirmed per curiam 133 N.J. Eq. 298 (E. & A. 1943); but see In re Linn, 124 N.J. Eq. 65 (E. & A. 1938). In the Emery case the trustee personally collected the rents and made the necessary payments. This clearly distinguishes the case from the one before us.
*75 We do not deal here with a small property or two from which testator himself used to collect rents. The Abbey Towers operation was a substantial and relatively complex one, large enough to warrant the retention of a managing agent to handle all the details, from collection of rents to maintenance of the property. Testator had dealt with the situation in the same way and with the same man, and had received only net rentals, after deduction of taxes, expenses and agent's commission. So with the estate it received from the agent only what was left of rentals after deductions. We consider that it would be a distortion of the statutory language (N.J.S. 3A:10-2), and indeed of the arrangement which actually existed, to say that the normal expenses of the apartment enterprise, paid by the manager out of gross receipts, should not first be deducted from the rentals he collected before determining "all income that comes into their [the executors'] hands."
The gross rentals could better be described as "revenue," rather than "income." Were Abbey Towers a retail store instead of an apartment house, and the executors retained the former manager to continue its operation, it could hardly be said that they would be entitled to income commissions on gross sales. Certainly salaries, cost of inventory and overhead would have to be deducted from total revenues before it could be said that there was "income" coming into the hands of the executors. The Abbey Towers situation is quite analogous. The executors dealt with it as a business of the estate, even as had their testator in his lifetime. Only the net rentals paid over to them by the managing agent could be used in calculating their income commissions.
Strong support for this conclusion is found in the fact that the executors themselves believed they were entitled to commissions on only the net rentals from Abbey Towers. Until the court handed down its oral conclusions they had never considered the gross rentals to be "income that [came] into their hands." As we have previously noted, in their accounting they charged themselves with only the net receipts *76 turned over to them by the managing agent. In the affidavit of the trust officer of the bank co-executor seeking to justify a 5% commission on income of $65,847.19, as well as in his testimony, the Abbey Towers income was consistently described as $26,400. Further, and most significantly, the executors submitted a number of alternate schedules designed to show that the commissions they were requesting were reasonable, and not the maximum they had a right to demand. In none of these schedules did they indicate that they considered the gross rentals from Abbey Towers as having come into their hands, or that they were entitled to commissions on the larger figure. If ever there was a place and time to point up such a claim, it was in the supporting affidavits, testimony and the schedules, or even as late as the hearing on the approval of the account. The fact is that nowhere in the record do we find even an indication of what the gross rentals were, until after the court had denied the executors' full request for commissions.
In view of the executors' obvious belief that they had no claim to commissions on the gross rentals, and considering that they received from the managing agent only the net after expenses, we are of the firm opinion that the only income which came into their hands from Abbey Towers was $26,400.
The executors sought income commissions of only 5%, although the statute in force at the time of the accounting, and thus controlling in this action, Blauvelt v. Citizens Trust Co., above, 3 N.J., at page 560; 7 N.J. Practice (Clapp, Wills and Administration) (1950), § 760, p. 229, entitled them to 6%. The trial court granted the requested 5%, except as to the Abbey Towers income. The executors now maintain, however, that their designation of a 5% commission on income was merely suggested as part of the method of computing the total requested corpus and income commissions of $56,852.46. Since this amount was denied them, they claim they should have been awarded the income commission to which the statute entitled them 6%.
*77 In dealing with income commissions, the trial judge said that the executors "are, of course, entitled to the statutory 5 per cent commission * * *," subject only to modification as to the Abbey Towers net rentals, on which he allowed 2 1/2%. From this it is clear that the court intended to grant the executors the full statutory commission but for the moment forgot that the current percentage was 6%. It does not appear that counsel for the executors called the court's attention to this mistake, and we would therefore be justified in denying his clients' belated claim to an additional 1% on income. However, since we are convinced that the court intended to grant the maximum, we deem it proper to increase the allowance on miscellaneous income to the statutory 6%.
As to the $26,400 net income from Abbey Towers, the court refused to award the full statutory commission because 5% of the gross rentals had already been paid to the managing agent. Instead it awarded only the 2 1/2% mentioned.
There is nothing to show that the executors in any way acted improperly in paying the agent 5% of gross rentals for his services. Nor does anyone so contend. As we have already observed, they had power to hire any employees or agents necessary to attend to the important real estate asset they were for the time being administering, and to pay them reasonable compensation for their services. The executors were not required to pay such compensation from their own pockets. In re Van Riper, above, 90 N.J. Eq., at page 219.
N.J.S. 3A:10-2 reflects a legislative policy to provide executors with quick and fixed commissions on income that has come into their hands. We see no reason to construe the statute as permitting a reduction in commissions because the executors exercised their right to engage someone to manage the Abbey Towers property. To do so would frustrate the express authority given executors by the statute to claim income commissions, even without court allowance.
*78 The case of In re Linn, 124 N.J. Eq. 65 (E. & A. 1938), referred to by the trial judge and cited to us as authority for the propriety of reducing income commissions because of moneys expended by an executor in collecting the income, was decided under a predecessor statute, L. 1898, c. 234, § 129 (later amended by L. 1937, c. 99, § 1). That law empowered the court, where income exceeded $50,000, to fix commissions at not exceeding 5%, taking into account actual services rendered. (Cf., § 128, with its reference to "actual pains, trouble and risk"; and § 130, employing the same language, with income commissions to be such as the court might deem "fair and just.") It was not until 1939 (L. 1939, c. 134) that the Legislature set income commissions at a mandatory rate (5%) and authorized fiduciaries to take such commissions out of income without first obtaining court allowance. The present law, N.J.S. 3A:10-2 is to the same effect, but the rate is 6%. The Linn case is therefore of no precedential value in the circumstances here present.
We conclude that the executors are entitled to a commission of 6% on not only the $39,447.19 miscellaneous income but also on the $26,400 net rental from Abbey Towers Apartments.
IV.
The residuary legatees contend that the judgment under review wrongly charged executors' commissions and counsel fees against the residuary estate. Their claim is that these should be paid out of the gross estate before calculation of the marital deduction. We do not understand why they consider themselves aggrieved. Analysis of their argument shows it to be without merit.
As the executors point out, the bequest to the widow was of property equivalent in value to her full marital deduction under the applicable provisions of the Internal Revenue Code. The maximum amount of that deduction equalled one-half *79 the adjusted gross estate. 26 U.S.C.A., § 812(e)(1)(H), Internal Revenue Code of 1939. The adjusted gross estate is defined, in general, as the gross taxable estate less debts, funeral and administration expenses. Ibid., § 812(e)(2). Therefore the total amount payable to the widow was here calculated by subtracting from the gross taxable estate all of the debts, funeral and administration expenses, including estimated executors' commissions and counsel fees; half the difference was the amount of the marital deduction. (In view of the allowance of commissions and additional counsel fees at the final accounting, the adjusted gross estate will have to be recomputed, in effect reducing the amount of the widow's bequest by half the additional allowances.)
The residuary estate is, of course, the amount which remains after deducting the gifts to the widow and to specific legatees, and all debts and administration expenses. Because of the nature of the widow's bequest, the amount, if any, left for the residuary legatees is reduced by half the administration expenses.
The residuary legatees seem to have confused the method of calculating the marital deduction with the source of payment of the administration expenses. The latter must clearly be paid out of the residuary estate. The amount of these expenses is one of the elements to be deducted from the gross estate for the purpose of mathematically computing the amount of the marital deduction.
V.
The residuary legatees also contend that it was not testator's intention that the residuary estate be exhausted before abatement of the specific bequests of the Club Razor & Blade stock for the payment of administration expenses or death taxes. As to estate taxes, their argument has been answered under Point II of this opinion. As to administration expenses, we find no merit whatever in the argument. The residuary legatees base their claim on the fact *80 that there is no provision in the will, either express or implied, that the residuary estate be exhausted before abatement of the specific legacies. The observation is a correct one; however, it does not support the legal result for which contended, but the very opposite. Absent contrary testamentary direction, specific legacies do not abate to pay administration expenses until the residuary estate has been exhausted. 5 N.J. Practice (Clapp, Wills and Administration) (1950), § 169, p. 392.
The judgment, as modified by our determinations hereinabove concerning apportionment of federal estate taxes and allowances of income commissions, is affirmed.
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153 A.2d 189 (1959)
William Henry DU PONT, Petitioner,
v.
FAMILY COURT FOR NEW CASTLE COUNTY, Delaware, Consisting of Francis A. Reardon and Elwood F. Melson, Judges Thereof, Respondents,
Deborah Eldredge duPont, Deborah Eldredge duPont, next friend of Deborah Helen duPont, a minor, Henry Laurence duPont, a minor, Harriet Nicole duPont, a minor, Intervening Respondents.
Supreme Court of Delaware.
June 4, 1959.
*190 William S. Potter, James L. Latchum and Hugh Corroon, Wilmington, for petitioner.
Daniel L. Herrmann and William Duffy, Jr., Wilmington, for respondents and intervening respondents, Laurence H. Eldredge, Philadelphia, Pa., of counsel.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
WOLCOTT, Justice.
This is an original petition for a writ of prohibition seeking to prevent the Family Court of New Castle County from proceeding further with an action by which the petitioner's deserted wife seeks separate maintenance and support for herself and her minor children. This court, upon motion of the petitioner, ordered that further proceedings in the Family Court be temporarily stayed, and that the plaintiffs in the Family Court be permitted to intervene in this action as respondents. Thereupon, the Family Court plaintiffs intervened and moved to dismiss the petition.
The facts are not disputed. Petitioner and one of the intervening respondents are husband and wife, the parents of three minor children, the other intervening respondents. In February, 1959, the wife commenced suit against the petitioner in the Family Court of New Castle County under 10 Del.C. § 963 for support of the minor children and for separate maintenance. In that action an interim order for support, now modified by order of this court, was entered.
Prior to the entry of the order by the Family Court, the petitioner moved in that court to dismiss the action, or for a stay of further proceedings, upon the ground that the assumption of jurisdiction by the Family Court was void by reason of the unconstitutionality of 10 Del.C. § 963. The motion to dismiss, or for a stay, was denied. Petitioner now seeks in this court a writ of prohibition to prevent the assumption of jurisdiction by the Family Court asserting the same reason of alleged unconstitutionality.
The allegations of the petition are sufficient to invoke this court's jurisdiction, for they assert a determination by the Family Court to proceed further with a matter not legally within its cognizance. Canaday v. Superior Court, 10 Terry 332, 116 A.2d 678.
The question of whether the petitioner has other adequate remedies to correct the asserted error of the Family Court, which, as we noted in the Canaday case, under some circumstances will move this court to deny a writ of prohibition, is not presently before us, since the basic contention of petitioner is that 10 Del.C. § 963 denies him any right whatsoever to an appellate review of the order.
Several arguments are advanced by petitioner in support of his contention that 10 Del.C. § 963 is unconstitutional and thus a nullity. We consider only two of them which may be stated to be that, first, the statute is defective in that it purports to confer upon the Family Court exclusive jurisdiction over separate maintenance actions by taking such jurisdiction from the Court of Chancery without, at the same *191 time, providing in the Family Court remedies the equivalent of those afforded in the Court of Chancery; and, second, that the statute is defective in providing a right of appeal to the wife and minor children and failing to provide such right of appeal to the husband. We do not reach the other questions urged by the petitioner.
Initially, we consider the purpose with which the General Assembly enacted 10 Del.C. § 963. In 1945, by 45 Laws, Ch. 241, the Family Court of New Castle County was established as a statutory court of exclusive limited jurisdiction over matters relating to the welfare of children and families. The exclusive jurisdiction thus conferred was criminal or quasi-criminal in nature. Proceedings were brought in the name of the State by information to which a plea of guilty or not guilty was taken. To this court was assigned exclusive jurisdiction in New Castle County over cases of the non-support of wives and minor children, which theretofore had been within the jurisdiction of the former Court of General Sessions and the Municipal Court of Wilmington. Such proceedings are quasi-criminal in nature and are commenced by the filing of an information. In re Alexander, 3 Terry 461, 36 A.2d 361; Harris v. State, 7 Terry 111, 82 A.2d 387. Appeals from the Family Court by 10 Del. C. § 988 are taken to the Superior Court and there are trials de novo before a jury upon an information presented by the Attorney General for the same offense for which the appellant had been tried in the Family Court. State v. Harris, 6 Terry 377, 75 A.2d 214.
The jurisdiction of the Family Court remained exclusively criminal or quasi-criminal until 1955 when 10 Del.C. § 963 was enacted, adding to the jurisdiction of the Family Court purportedly exclusive jurisdiction over civil causes for separate maintenance and support which theretofore had been exercised by the Court of Chancery. It is perfectly clear from the title of the Act (50 Laws, Ch. 264) that it was intended to confer exclusive jurisdiction over such civil actions upon the Family Court, and at the same time remove that jurisdiction from the Court of Chancery. In so providing, the General Assembly conferred upon the Judges of the Family Court all the jurisdiction and powers relating to separate maintenance actions theretofore exercised by the Chancellor. This jurisdiction and these powers were specifically declared to be in addition to the Family Court's criminal or quasi-criminal jurisdiction over non-support.
The enactment of 10 Del.C. § 963 followed the decision of this court in duPont v. duPont, 32 Del. Ch. 413, 85 A.2d 724, 734, that the Court of Chancery had jurisdiction over actions for separate maintenance despite the provision of 45 Laws, Ch. 241 conferring upon the Family Court exclusive jurisdiction over the non-support of a deserted wife. We held in that case that Chancery jurisdiction can be curtailed by the General Assembly only by expressing an intention to do precisely that and, at the same time, creating in another tribunal "remedies which are the equivalent of the remedies that would have been available in the Court of Chancery."
We pointed out in the duPont case that the then-existing remedy in the Family Court was not the equivalent of the remedy available to a deserted wife in Chancery, because in the Family Court the wife was not in control of her suit, could not select her own counsel, could not compel her husband to bear the expense of the litigation, could not petition for the citation of her husband for contempt for refusal to abide by the court's order, could not sequester her husband's property to satisfy the court's award, and, finally, in the event of an adverse decision, could not appeal.
By the enactment of 10 Del.C. § 963, an attempt was made to supply the deficiencies in the remedies available in the Family Court and thus take from the Court of Chancery its jurisdiction to give relief in actions for separate maintenance. That this was the legislative intent is clear, not *192 only from the title of the act, but also from the inclusion in the body of the act of provisions designed to meet specifically the deficiencies of the former remedy of nonsupport which we had enumerated in the duPont case.
The intervening respondents argue that we are not concerned with the question of whether or not the General Assembly effectively divested the Court of Chancery of its jurisdiction over separate maintenance since the authority of the Family Court over this matter can be sustained in any event as the grant to it by the General Assembly of concurrent jurisdiction over separate maintenance. Glanding v. Industrial Trust Co., 28 Del. Ch. 499, 45 A.2d 553. Thus, it is argued that the creation of a concurrent partial jurisdiction over such matters in the Family Court does not require the establishment of the equivalent of the Chancery remedy.
We disagree, however, that we are not concerned in this case with the divestment of Chancery jurisdiction over this subject. The history of the statute, its title and the provisions of its body make it crystal clear that the intention of the General Assembly was to confer an exclusive jurisdiction upon the Family Court and take that jurisdiction from the Court of Chancery. We think the constitutionality of the statute must, accordingly, be judged in the light of the demonstrable legislative intent. When such is clear, we think, we are not at liberty to ignore it and, in effect, by judicial construction place upon our statute books a law the General Assembly did not intend to enact, and, indeed, as far as we know might well have refused to enact in the suggested construed form. In this light, we approach the decision of the question of constitutionality.
10 Del.C. § 963(3) (D) confers on the wife, or the next friend of a minor child, the right of appeal to the Superior Court from an adverse order or decree of the Family Court "in form and in manner as provided by law". § 963, however, confers no right of appeal upon the husband. The failure to so provide is the basis for petitioner's attack on the statute. The argument is that the giving of a right of review to the wife and children, while denying it to the husband, violates the 14th Amendment of the Federal Constitution, and Art. 1, §§ 7 and 9 of the Delaware Constitution, Del.C.Ann.
The right to review by appeal the proceedings of an inferior statutory tribunal in this state exists only to the extent to which it is granted by the Constitution and Laws of the state. Casey v. Southern Corporation, 26 Del. Ch. 447, 29 A.2d 174; Elbert v. Scott, 5 Boyce 1, 90 A. 587. There is no right of appeal in civil cases from the Family Court or, for that matter, from any Delaware statutory court, provided for by the Delaware Constitution. It follows, therefore, that if such right exists it must be created by statute.
We do not consider it necessary to labor the point that the grant of a right of appeal to one litigant with an accompanying failure to make the same grant to the other is in law discrimination and, as such, a violation of both the Federal and State Constitutions. Cf. Hecker v. Illinois Central Ry. Co., 231 Ill. 574, 83 N.E. 456; State ex rel. Owen v. Wisconsin-Minnesota Light & Power Co., 165 Wis. 430, 162 N.W. 433. Indeed, the intervening respondents do not take issue with this fundamental proposition, but argue that the husband has a statutory right of appeal.
It is argued that 10 Del.C. § 988, the section of the original Family Court Act allowing appeal to the Superior Court, covers this case and would permit review at the suit of the husband of an order for separate maintenance. This being so, it is argued, there has been no deprivation of due process or denial of equal protection of the law.
The argument runs to the effect that it was necessary to grant specifically a right of review to a wife, in order to meet the *193 objections set forth in duPont v. duPont, supra, but that it was unnecessary to do so for the husband since he already had a right of appeal by § 988. It is urged that § 963(3) (D) giving an appeal "in form and in manner as provided by law" is the equivalent of the husband's right of appeal under § 988 "in form and in manner provided in this section or by law". We do not agree.
The appeal conferred by § 988 is an appeal from the criminal or quasi-criminal side of the Family Court and in manner and form consists of a criminal trial de novo in the Superior Court, upon an information filed by the Attorney General for the same charge upon which the appellant was tried in the Family Court. Monastakes v. State, 2 W.W.Harr. 549, 127 A. 153; State v. Harris, 6 Terry 377, 75 A.2d 214. On the other hand, the appeal conferred upon the wife and minor children by § 963 is an appeal from the newly-created civil side of the Family Court.
The intervening respondents argue that the phrases appearing in § 963 and § 988 are equivalent, but we cannot see how they could be. § 988 as first enacted by 45 Laws, Ch. 241, § 22 was not separated into the sub-paragraphs now appearing as the work of the 1953 Codifiers, but was enacted as one paragraph providing for an appeal to the Court of General Sessions, the then criminal court, which by the Constitutional Amendment of 1951 was absorbed into the Superior Court now exercising general criminal, as well as civil, jurisdiction. It is thus apparent that § 988, both as originally enacted and as embodied in the 1953 Code, provides for an appeal from the finding of guilty in a criminal case to a criminal court of general jurisdiction. As such, it fulfills the requirement of Art. 4, § 28 of the Constitution that there shall be an appeal to the Superior Court from all inferior courts in all criminal cases in which the sentence shall be imprisonment exceeding one month, or a fine in excess of $100. As we have pointed out, such appeals consist of new trials in the Superior Court and must be carried forward in that court by the filing of an information by the Attorney General.
With respect to § 963, it is provided that the appeal shall be in the manner provided by law, but precisely what that means is difficult to say. Intervening respondents suggest that such appeals are governed by Rule 72(g) of the Superior Court Del.C. Ann., and are to be heard on the record below. Rule 72(g), however, was promulgated in 1950 to govern appeals which, by statute, were to be decided upon the record made before the inferior statutory tribunal. Lockwood v. Unemployment Compensation Commission, 6 Terry 536, 76 A.2d 311. Furthermore, it is apparent that an appeal under § 963 could not be decided upon a record made before the Family Court for the obvious reason that no record of the testimony before that court is made.
By analogy, an appeal under § 963 must be similar to appeals to the Superior Court in civil cases from the Courts of Common Pleas and Justices of the Peace, which take the form of a new trial with the right to have such trial before a jury if one party so elects. Whatever the method of appeal, however, it is certainly different from appeals taken under § 988, for they can be heard and decided only after the Attorney General has filed an information in the Superior Court. That section is obviously not applicable to cases arising under § 963 because the State is not a party to such causes and, indeed, has no interest in such purely civil actions. That such actions are purely civil in nature becomes apparent when it is realized that the award of separate maintenance to a deserted wife is the enforcement of the wife's common law right to be maintained by her husband, for which legal right the common law remedy of purchasing upon the husband's credit was inadequate. duPont v. duPont, supra. Such a right belonging to the wife is entirely distinct from the State's interest as parens patriae in preventing the wife from becoming a public charge. To prevent this from happening, *194 the State proceeds criminally against the husband for non-support.
It follows, therefore, that since § 963 provides solely for the right of appeal at the suit of the wife and minor children, it runs afoul of the due process and equal protection provisions of the Federal and State Constitutions.
The intervening respondents argue, in the alternative, however, that the husband has equal right of review by writ of certiorari. The argument is based upon the assumption that the appeal granted the wife by § 963 is to be heard and decided upon the record made in the Family Court. As we have pointed out, however, it is doubtful that § 963 provides for such an appeal, but, assuming such to be the fact, it is apparent that review by writ of certiorari is not the equivalent, for in such proceedings the evidence received in the inferior court is not part of the record to be reviewed in a certiorari proceeding. Thompson v. Thompson, 3 W.W.Harr. 593, 140 A. 697; Kowal v. State, 10 Terry 549, 121 A.2d 675; Rodenhiser v. Department of Public Safety, 11 Terry 585, 137 A.2d 392. Therefore, it does not matter whether § 963 gives the wife an appeal by way of trial de novo or upon the record made below, for in either event review by writ of certiorari is not the equivalent.
We conclude, therefore, that in failing to give the husband the same right of appeal as § 963 confers upon the wife and minor children, the statute is constitutionally defective.
This conclusion, in our opinion, voids § 963 in its entirety for we think it obvious that the General Assembly under no circumstances would have intended the statute to be operative with no right of appeal from the orders of the Family Court in such cases. Yet, that would be the result if we held that the appeal provisions of the act were severable from the rest, as would have to be done if equal protection of the laws is to be maintained. The General Assembly intended no such result.
Nor, can we sustain the statute by construction upon the theory that in so doing we were carrying out the general policy of the law in providing for appellate review. In the first place, the appeal provision is not susceptible to judicial construction. It is clear on its face, and is limited to a grant to a wife and children of the right of appeal. The husband is excluded by not having been included. It may well be that this resulted from the belief of the draftsman that § 988 preserved the husband's right. If that be the fact, it was a mistaken belief. There has resulted, therefore, a casus omissus which the courts are powerless to supply. Fouracre v. White, 7 Boyce 25, 102 A. 186.
For the foregoing reasons, therefore, we are of the opinion that 10 Del.C. § 963 is unconstitutional for its failure to provide for an equal right of appeal to all parties. We express no opinion upon the related question of whether or not, had appellate rights been adequately provided, the statute would have accomplished the legislative purpose of conferring exclusive jurisdiction upon the Family Court over actions for separate maintenance. The point is not directly before us. We feel free to point out, however, the inherent difficulty, if not impossibility, of seeking to confer upon a tribunal of limited criminal jurisdiction, conducting its business by criminal procedures, the broad civil remedies of equity in the field of separate maintenance. The problem of harmonizing two such unrelated fields of the law would, of itself, seem to raise grave doubts of the wisdom of trying.
A writ of prohibition will be issued ordering the Family Court to cease from proceeding any further in the action brought by the intervening respondents against the petitioner.
An order may be presented on notice.
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742 S.W.2d 393 (1987)
Ex parte Clyde Wade SEWELL, Applicant.
No. 69710.
Court of Criminal Appeals of Texas, En Banc.
October 7, 1987.
Rehearing Denied October 21, 1987.
J. Brent Liedtke, Galveston, for appellant.
Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPLICANT'S MOTION FOR REHEARING
TEAGUE, Judge.
This Court's original majority unpublished opinion that was filed in this cause on February 18, 1987 is hereby withdrawn.
This is an application for post-conviction writ of habeas corpus that was filed by Clyde Wade Sewell, hereinafter referred to as the applicant, in the trial court and transferred to this Court pursuant to the provisions of Article 11.07, § 2(b), V.A.C. C.P.
The record reflects that in 1975 applicant was convicted by a jury for committing the first degree felony offense of delivery of a controlled substance, namely, heroin. Punishment, enhanced by a prior felony conviction that was sustained in 1955, was assessed by the jury at 99 years' confinement in the Department of Corrections. In 1977 this Court affirmed the conviction and sentence in an unpublished opinion. See Sewell v. State, 558 S.W.2d 897 (Tex.Cr.App. *394 1977). In 1981, based upon the fact that this Court had in 1980 set aside the above 1955 prior felony conviction after finding that same was void, see Ex parte Sewell, 606 S.W.2d 924 (Tex.Cr.App.1980), this Court in an unpublished opinion granted applicant a new trial on the 1975 conviction. See Ex parte Sewell, 616 S.W.2d 217 (Tex. Cr.App.1981). In 1981, applicant was reindicted and again convicted by a jury for committing the same primary felony offense. Punishment, enhanced by two prior felony convictions, one that had occurred in 1952 and one that had occurred in 1961, was assessed by the trial judge at life imprisonment in the Department of Corrections. See V.T.C.A., Penal Code, Section 12.42(d), prior to amendment.[1] The Houston First Court of Appeals affirmed in an unpublished opinion. See Sewell v. State, (Tex.App.-1st No. 01-82-02 55-CR, September 29, 1983). This Court refused applicant's petition for discretionary review on March 21, 1984, without opinion or comment. See Sewell v. State (Tex.Cr.App. No. 1097-83, March 21, 1984).
Applicant contends that his present 1981 conviction and life sentence should be set aside "due to the fact that allowing him to be tried a second time as an habitual offender involving the same primary offense... [was violative of] the double jeopardy provisions of the United States Constitution and the Constitution of the State of Texas ..." (Page 2 of applicant's petition.) We find that the basis for applicant's assertion lies in the fact that the indictment on which he was tried in 1975 alleged for enhancement of punishment purposes, pursuant to § 12.42(d), supra, felony convictions that had occurred in 1955 and 1962, but after he pled "untrue" to the enhancement allegations, see Art. 36.01(1), V.A.C. C.P., and at some unknown point in time during the punishment hearing stage of the trial, the State "abandoned" the 1962 conviction.
As noted, in 1980 this Court set aside the 1955 conviction. In the 1981 reindictment the State alleged four prior felony convictions, occurring in 1952, 1961, and 1962, for enhancement of punishment purposes. The 1962 conviction is the same one that was used in the 1975 trial to enhance applicant's punishment as a "repeater". However, the jury in the 1981 trial only found the 1952 conviction and one of the two 1961 felony convictions "true", which caused the trial judge to assess punishment at life imprisonment pursuant to § 12.42(d), supra.
We find that the question that we must answer is the following: Whether, where it is alleged in an indictment that the defendant has previously been convicted of at least two prior felony convictions, and he enters a plea of "untrue" to those allegations, and the State thereafter abandons one of the alleged enhancement convictions, and the defendant thereafter obtains a new trial because of error regarding the prior felony conviction that was used to enhance punishment, the State is thereafter barred by the respective Double Jeopardy Clauses from again seeking to have the defendant declared to be and punished as an "habitual offender" when the same primary felony offense has not changed? We answer the question in the affirmative.
This Court has held in several recent cases that when the State seeks to have a *395 defendant declared to be and punished as an "habitual offender", by so alleging in the indictment and attempting to establish those allegations during the punishment stage of the trial, and it is later found on appeal that the evidence is insufficient to sustain the enhancement paragraph allegations, or it is found on direct appeal or through post-conviction habeas corpus that one of the prior convictions that was alleged to enhance the punishment was void, the sentence will be set aside and, if the punishment issue was tried to the court, the cause will be remanded to the trial court to reassess punishment, or, if the punishment issue was tried to the jury, both the judgment of conviction and sentence will be set aside and the defendant will be entitled to a new trial on both guilt and punishment.[2] See, for example, Ex parte Barfield, 697 S.W.2d 420 (Tex.Cr. App.1985); Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982); Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977). In that instance, the State is thereafter barred by the respective double jeopardy clauses from again attempting to have the defendant declared at the retrial to be and punished as an "habitual offender" for committing the same primary offense: "Having received `one fair opportunity to offer whatever proof it could assemble,' Burks v. United States, 437 U.S. [1], at 16, 98 S.Ct. [2141] at 2150, [57 L. Ed. 2d 1 (1978)], the State is not entitled to another." Carter v. State, 676 S.W.2d 353, 355 (Tex.Cr.App. 1984). Also see Ex parte Quirke, 710 S.W.2d 582 (Tex.Cr.App.1986); Ex parte Bullard, 679 S.W.2d 12 (Tex.Cr.App.1984); Cooper v. State, 631 S.W.2d 508 (Tex.Cr. App.1982); Ex parte Augusta, supra; and Ex parte Gonzales, 707 S.W.2d 570 (Tex. Cr.App.1986).
In this instance, although the State alleged in the 1974 indictment that applicant was an habitual offender, it did not seek to have him declared to be and punished as such at his 1975 trial on that indictment, but, instead, only sought to have him punished as a single repeat offender, which it accomplished.
In Ex parte Augusta, supra, this Court held: "[T]he punishment hearing to decide the punishment of an alleged habitual offender not only resembles in all relevant respects a trial on the issue of guilt, it is itself a trial, with the trier of facts judging the issues by the standard of `beyond a reasonable doubt'. It therefore has all of the [ear]marks of a trial on guilt or innocence." (484-485).
Art. 36.01, V.A.C.C.P., expressly provides in part that "1. The indictment or information shall be read to the jury by the attorney prosecuting." Art. 36.01(1), supra, also provides that the portions of the charging instrument that pertain to enhancement allegations shall be read to the defendant prior to the commencement of the punishment hearing, but not before that event takes place. This, of course, is to prevent prejudice as to the defendant's guilt. See Frausto v. State, 642 S.W.2d 506 (Tex.Cr.App.1982). This Court has held that the provision of Art. 36.01, supra, that requires that the charging instrument shall be read to the defendant, is mandatory. See Warren v. State, 693 S.W.2d 414 (Tex.Cr.App.1985), and the cases cited therein at page 415. The rationale for this rule of law is that until the charging instrument is read to the accused, and he pleads thereto, no issue is joined upon which to try him. This rule of law has been carried over to enhancement paragraphs that are alleged in the charging instrument. Without the reading of that part of the charging instrument that contains the enhancement allegations, and the entering of a plea thereto, no issue is joined upon which to enhance the punishment. See Warren v. State, supra. Thus, joining the issue as to the enhancement allegation or allegations through a plea of "untrue", "not true", or "not guilty" is mandatory. E.g., Peltier v. State, 626 S.W.2d 30 (Tex.Cr.App. 1981). *396 However, if the defendant pleads "true" or "guilty" to the enhancement allegations, then, of course, he removes from the State its burden to prove what it alleged. See Harvey v. State, 611 S.W.2d 108, 111 (Tex. Cr.App.1981). In this instance, at the punishment stage of the 1975 trial, applicant entered a plea of "untrue" to the two enhancement paragraph allegations. Thus, he joined issue with the State as to those allegations. It then became incumbent upon the State to prove what it had alleged. However, for reasons not expressly reflected in the 1975 trial record, the State thereafter abandoned one of the two alleged felony convictions. The jury found the other alleged felony conviction (the 1955 conviction, which this Court held to be void, see supra) "true" and assessed his punishment at 99 years' confinement in the Department of Corrections.
We hold that when applicant entered his plea of "untrue" to the two enhancement allegation paragraphs at his 1975 trial on the issue of punishment he joined issue with the State as to those allegations, see Warren v. State, supra, and Peltier v. State, supra, and, because the jury had then been impaneled and sworn, jeopardy attached, e.g. Mc Elwee v. State, 589 S.W.2d 455 (Tex.Cr.App.1979) (Held, jeopardy attaches when the jury is impaneled and sworn).
In Briggs v. Procunier, 764 F.2d 368 (5th Cir.1985), a panel of the Fifth Circuit Court of Appeals recently dealt with a factual situation that is similar to this cause, and granted the defendant in that cause relief. The opinion of Briggs, supra, reflects that after the jury returned a verdict of guilty on the primary charge, the State then abandoned all of the alleged prior felony convictions. Here, however, after applicant entered his plea of "untrue" to the enhancement allegations at the punishment stage of the trial, the State abandoned only one of the two alleged prior felony convictions. Does this make a difference as to whether the State was barred from reprosecuting applicant as an "habitual offender"? We see no meaningful distinction. In fact, we find that what the Fifth Circuit panel stated and held more than supports our holding.
The Fifth Circuit panel, in rejecting the State's arguments, that there was no implied acquittal giving rise to double jeopardy concerns because the dismissal occurred before the punishment stage of the trial began, and thus the jury never weighed evidence of the prior convictions, thus, no jeopardy attached, invoked and applied the rule that double jeopardy attaches in criminal trials immediately after the jury is sworn. See Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 2160, 57 L. Ed. 2d 24 (1978), also see Mc Elwee v. State, supra. A careful reading of Briggs, supra, however, leads us to conclude that the panel overlooked the fact that in Texas, where the trial may be bifurcated, and the State has alleged one or more enhancement allegation paragraphs, the defendant actually enters two pleas rather than just one. We find that the fact that such a defendant pleads twice, rather than just once, makes what the Fifth Circuit panel stated extremely helpful to our resolving the above issue in applicant's favor.
In rejecting the State's contentions, the Fifth Circuit panel first held that "the Double Jeopardy Clause protects defendants against more than retrial after acquittal," (372), and then held that the State violated that defendant's double jeopardy rights when it later had him declared to be and punished as an "habitual offender". Also see Nelson v. Lockhart, 641 F. Supp. 174 (U.S.D.C.E.D.Ark.1986), Leggins v. Lockhart, 649 F. Supp. 894 (U.S.D.C.E.D.Ark. 1986); Ex parte Rathmell, 717 S.W.2d 33, 36 (Tex.Cr.App.1986) (Teague, J., concurring and dissenting opinion).
Therefore, we hold that applicant was not subject at the retrial that occurred in 1981 to be sentenced as an "habitual offender" pursuant to § 12.42(d), prior to amendment. We also hold that when the State abandoned the 1962 conviction at his 1975 trial such act amounted to an acquittal for future enhancement purposes. See Briggs v. Procunier, supra. When this Court held in 1980 that the other alleged prior conviction that had occurred in 1955 and that was used to enhance punishment *397 at the 1975 trial was void such holding prevented the State from thereafter using that conviction for punishment purposes, either to enhance punishment or to use same as part of his prior criminal record pursuant to Art. 37.07, supra. See Ex parte Gonzales, supra, and Ex parte Quirke, supra, (Held, "We hold that `conviction' in Sec. 12.42 requires a valid conviction. Quite simply, if a void conviction is used, the State has insufficiently proved a factual element, i.e., that the defendant has a prior conviction." (584). Therefore, we hold that the State may not now seek to enhance applicant's punishment as a "repeater" or as an "habitual offender" for the same primary offense.
Habeas corpus relief is granted. Applicant is remanded to the custody of the Sheriff of Harris County to answer to the indictment in trial court cause number 333,770, entitled The State of Texas vs. Clyde Wade Sewell. The Clerk of this Court is directed to forward a copy of this opinion to the Department of Corrections and the Board of Pardons and Paroles.
It is so Ordered.
OPINION DENYING THE STATE'S MOTION FOR REHEARING
MILLER, Judge.
The State in its motion for leave to file motion for rehearing maintains that
"The majority of this Court has erred in remanding this applicant to answer to the indictment in this cause, when the error which the Court has found relates only to the punishment stage of the trial.
. . . . .
... this cause should be remanded for the punishment phase of the trial only, under the provisions of Article 44.29, Vernon's Ann.C.C.P., as amended September 1, 1987. Acts 1987, 70th Leg., p. 2711, ch. 179."
Art. 44.29(b), V.A.C.C.P., which became effective on August 31, 1987, provides:
"If the Court of Appeals or the Court of Criminal Appeals awards a new trial to the defendant only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under subsection (b), Sec. 2, Art. 37.07, of this Code. If the defendant elects, the court impanel a jury for the sentencing stage of the trial in the same manner as a jury is impaneled by the court for other trials before the court. At the new trial, the court shall allow both the state and the defendant to introduce evidence to show the circumstances of the offense and other evidence as permitted by Sec. 3 of Art. 37.07 of this Code." (emphasis supplied)
In urging their motion, the State makes two assumptions that are, in our view, erroneous.
First, the State assumes that by the words "to answer the indictment" at the end of the Court's opinion, we ordered that the applicant be retried as to guilt. We did not. Neither did we order that he be retried only as to punishment. We simply granted him relief and set aside the previous judgment of conviction, then, just as the opinion says, remanded him to the sheriff to answer the indictment.
Second, the State interprets Art. 44.29(b), supra, to be directed to this Court. It is not. The article plainly is directed at the trial court to take appropriate action in appropriate circumstances. The proper forum to urge the application of the article is the trial court.
Only if we were to instruct the trial court in violation of the article, would the State's motion have potential merit. Since we have not instructed the trial court at all vis-a-vis Art. 44.29(b), supra, we have not instructed the trial court in violation of Art. 44.29(b).
For these reasons, the State's motion is denied.
ONION, P.J., not participating.
NOTES
[1] Prior to amendment, effective September 1, 1983, § 12.42(d), supra, provided: "If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction [sic] he shall be punished by confinement in the Texas Department of Corrections for life." § 12.42(d), as amended, now provides that the punishment for a person found to be an "habitual offender" shall be by confinement in the Department of Corrections "for life, or for any term of not more than 99 years or less than 25 years." Thus, today, those persons who have been convicted for an offense committed after the amendment became effective, and have been found to have been previously convicted of two or more felony offenses, committed at different times, are no longer subject to having their punishment assessed at "automatic" life imprisonment by the trial judge. In this instance, because applicant committed the primary offense before the date of the amendment, his punishment was subject to being assessed under § 12.42(d) as it read prior to amendment.
[2] Senate Bill 43, which provides that if reversible error is found to exist in the punishment stage of the trial by an intermediate court of appeals or this Court, and no reversible error is found to exist at the guilt stage of the trial, the defendant will only receive a new trial on the issue of punishment did not become effective until August 31, 1987. See Acts 70th Leg., ch. 179, p. 2711, Section 1, now Art. 44.29(b), V.A.C. C.P.
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56 N.J. Super. 411 (1959)
153 A.2d 378
L.L. CONSTANTIN & CO., A CORPORATION, PLAINTIFF,
v.
R.P. HOLDING CORP., A CORPORATION, ET ALS., DEFENDANTS.
Superior Court of New Jersey, Chancery Division.
Decided June 25, 1959.
*413 Mr. Milton Rosenkranz, attorney for plaintiff.
Messrs. Bracken & Walsh, attorneys for defendant R.P. Holding Corp.
Messrs. Morrison, Lloyd & Griggs, attorneys for defendant Charles Denby.
Messrs. Smith, Stratton & Wise, attorneys for defendant Continental Bank & Trust Company, receiver.
COLIE, J.S.C.
L.L. Constantin & Co., a New Jersey corporation, filed a complaint against R.P. Holding Corp., Charles Denby, Continental Bank & Trust Co. as receiver of Inland Empire Insurance Co., and Royal American *414 Insurance Co., seeking a declaratory judgment stating the rights and obligations of the parties hereto in connection with preferred stock issued by the plaintiff corporation. Royal American Insurance Co. has not answered and a default has been taken against it.
The controversy between the plaintiff and defendants arises from the legal effect of an amendment on December 23, 1952 of the certificate of incorporation which read, so far as pertinent:
"By authorizing the issuance of fifty thousand (50,000) shares of preferred stock having a par value of Ten dollars ($10.00) each. The holders of the preferred stock shall be entitled to receive, and the Company shall be bound to pay thereon, but only out of the net profits of the Company, a fixed yearly dividend of fifty cents (50¢) per share, payable semi-annually. The said dividend shall be cumulative. Preferred stockholders shall have no voting rights. The stock shall be redeemable on and after January 2nd, 1955, at Ten dollars and fifty cents ($10.50) per share."
An identical legend appears upon the face of each preferred stock certificate.
The stock holdings of the respective defendants came about as follows: On December 31, 1953 Guardian Insurance Company acquired 40,000 shares, 10,000 of which it transferred to Arizona Western Insurance Company on October 1, 1954. Arizona transferred its holding to S & C Trading Co., Inc. on June 11, 1956, and on November 22, 1957 S & C Trading transferred its holdings to R.P. Holding Corp. Charles Denby holds 8,000 shares, having acquired 10,000 shares from Echo Falls Farm, Inc., on August 12, 1953, and thereafter having sold 2,000 shares to plaintiff on January 11, 1955. In June 1954 Guardian transferred 30,000 shares to Central Standard Insurance Company. On December 31, 1954 Central transferred all or part of its shares to Inland Empire Insurance Company, and thereafter Continental Bank and Trust Company took possession of Inland's holdings of 30,000 shares by virtue of Continental's appointment as receiver of Inland on November *415 29, 1955 by order of the U.S. District Court for the District of Utah.
Thus it appears that defendants' stock interests were acquired on the following dates:
R.P. Holding Corp. November 22, 1957
Charles Denby August 12, 1953
Continental November 29, 1955
As to R.P. Holding, its predecessor acquired the stock June 11, 1956; Continental's predecessor acquired its stock December 31, 1954.
In 1956 Arizona Western sued Constantin in the U.S. District Court for the District of New Jersey. In that action S & C Trading Co., Inc. (predecessor in title to R.P. Holding) intervened. The first count sought a judgment for Arizona because of non-payment of a dividend on the preferred stock admittedly declared on December 28, 1954. A partial summary judgment was entered in favor of Arizona and the amount thereof, $5,504.16, paid into the registry of the court pending outcome to an action between Arizona and S & C Trading Co. The second count was dismissed by stipulation of Arizona and Constantin. The third count asserted that under Constantin's amended certificate of incorporation and the preferred stock certificate, Constantin was bound to pay Arizona, out of net profits, a fixed yearly dividend of 50¢ a share; that net profits were available in 1955 but no dividend had been paid although Arizona had made demand therefor. Constantin then moved for summary judgment in its favor; Arizona made a cross-motion for summary judgment. The U.S. District Court granted judgment in favor of Constantin, denying Arizona's cross-motion. On appeal to the United States Court of Appeals for the Third Circuit, that court reversed the judgment below. Arizona Western Ins. Co. v. L.L. Constantin & Co., 247 F.2d 388 (3 Cir. 1957). The rationale of the opinion is found in the following excerpt therefrom.
*416 "The amended certificate of incorporation in the case at bar provides in pertinent part that, `The holders of the preferred stock shall be entitled to receive, and the Company shall be bound to pay thereon, but only out of the net profits of the Company, a fixed yearly dividend of fifty cents (50¢) per share, payable semi-annually.' Identical language is found in the preferred stock certificate. Words could not more clearly or plainly manifest that Constantin agreed to be bound to pay dividends where net profits were available for the purpose."
The appeal was decided July 31, 1957, "as amended Sept. 10, 1957." In the interim between institution of the action in the U.S. District Court and decision on appeal, Constantin on September 28, 1956 held a meeting of its board of directors and passed a resolution which so far as pertinent reads:
"The holders of the preferred stock shall be entitled to receive (cumulative) dividends, as and when declared by the Board of Directors, out of its surplus or net profits, as determined pursuant and subject to the provisions of the General Corporation Law of the State of New Jersey, at the rate of 50¢ per annum * * *."
New preferred stock certificates were printed bearing, inter alia, the above language.
At the pretrial conference, the complaint was amended to allege that
"the corporate by-laws in article 7, provide that dividends are to be declared by the Board of Directors when expedient, and that unless the directors declare a dividend, the same does not become due and payable."
By the pretrial order entered herein the legal issues were determined to be:
1. Is this court bound by the determination of the Circuit Court of Appeals on the question of whether or not dividends on the preferred stock are mandatory.
2. Construction of the 1952 amendment of the certificate of incorporation of Constantin, to determine rights of preferred stockholders to dividends whether payment of such dividends is mandatory or discretionary.
*417 3. If payment of dividends is discretionary, whether failure to declare and pay the same constitute abuse of discretion under the circumstances.
4. Determination of meaning of the term "net profits" in the 1952 amendment of the certificate of incorporation of Constantin.
5. Determination of the validity of the 1956 amendment to the certificate of incorporation of Constantin.
6. What is the validity, proper construction and interpretation of article 7 of the corporate by-laws and are the directors chargeable with an abuse of discretion thereunder.
Dealing first with the effect of the decision in Arizona Western Insurance Co. v. L.L. Constantin, supra, the rule is clear that a right, question or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. Robinson-Shore Development Co. v. Gallagher, 26 N.J. 59 (1958). There were but two issues before the court in Arizona Western Insurance Co. v. L.L. Constantin: first, a claim for the dividend declared December 28, 1954, and second, whether the 1952 amendment made the payment of a dividend mandatory, if net profits were available therefor. The present defendants argue that the holding by the Circuit Court of Appeals that payment of the dividend was mandatory is res adjudicata in this suit. No one questions that the last issue is identical in the two actions, but the parties are not the same and therefore to bring the case within the rule as stated in Robinson-Shore v. Gallagher, supra, it must be shown that the present defendants, or some of them, are privies.
"Privity within the view of the rule of res judicata ordinarily means identity of interest, through succession to the same rights *418 of property involved in the prior litigation. * * * Privity in the sense of this principle connotes such connection in interest with the litigation and the subject matter as in reason and justice precludes a relitigation of the issue. In a word, a litigant is entitled to his day in court, but not to relitigate an issue once determined by a valid judgment."
Hudson Transit Corp. v. Antonucci, 137 N.J.L. 704 (E. & A. 1948). See Restatement, Law of Judgments, sec. 83, comment (a).
"Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties. The word `privy' includes those who control an action although not parties to it (see Sec. 84); those whose interests are represented by a party to the action (see Secs. 85-88); successors in interest to those having derivative claims (Secs. 88-89)."
Defendants Denby, Continental Bank and Trust Co., and R.P. Holding Co. were not parties in the federal court action, however, S & C Trading Co. intervened therein and became a party. Neither Denby nor Continental intervened, and presumably could have done so since S & C Trading Co., whose interests were identical to that of Denby and Continental, was permitted to do so. Neither Charles Denby nor Continental were privies within the meaning of that term as defined above. R.P. Holding Co., however, is in privity since it succeeded to the same rights of property enjoyed by S & C Trading Co. The Arizona Western case was not a class action and the plaintiffs therein were representing no preferred stockholders other than themselves.
In Sbarbero v. Miller, 72 N.J. Eq. 248 (Ch. 1906), affirmed on the opinion below 74 N.J. Eq. 453 (E. & A. 1908), Vice-Chancellor Garrison said:
"The absolute necessity of mutuality in estoppels by record requires that the court should not hold a judgment conclusive in favor of a person unless it would be equally conclusive against him." *419 This rule finds support in the comment, section 96 of the Restatement, Law of Judgments, at page 473:
"Relitigation of an issue with a new adversary is permitted because of the assumed unfairness of binding one party to a proceeding by the rules of res judicata while the other party is not bound: where there is a new adversary who was not privy to the first action, since the second adversary would not be bound by the rules of res judicata, the person who was a party to the first proceeding should not be bound either. This desirability for equality between litigating parties with reference to the rules of res judicata is not, however, of pervading importance and disappears when there are countervailing reasons for requiring one to be bound while the other is not."
Sbarbero v. Miller, supra, was cited with approval in Miller v. Stieglitz, 113 N.J.L. 40 (E. & A. 1934).
This court is not bound by the decision in the Arizona case on the theory of res adjudicata or collateral estoppel so far as defendants Denby or Continental Bank and Trust Company are concerned. As to R.P. Holding Corp., it is in privity with S & C Trading Co., Inc., and therefore it may properly raise the defense of res adjudicata. Even so, there is presented the further question as to whether the decision of the Court of Appeals was correct under the New Jersey law. That court recognized that the question of the interpretation of the certificate of incorporation must be determined by the law of New Jersey.
Standing alone, the 1952 amendment providing that "the holders of the preferred stock shall be entitled to receive, and the company shall be bound to pay * * *" presents no problem for construction. There is no ambiguity which would entitle this court to construe the above quoted direction. As the Court of Appeals said [247 F.2d 391]: "Words could not more clearly or plainly manifest that Constantin agreed to be bound to pay dividends where net profits were available for the purpose." However, the contract between Constantin and its preferred shareholders is to be found not alone in the language of the 1952 amendment but in the entire certificate of incorporation, as amended, and the applicable *420 provisions of the statute in force at the time of incorporation, i.e., 1947. Franzblau v. Capital Securities Co., 2 N.J. Super. 517 (Ch. 1949). The General Corporation Act provides that "the business of every corporation shall be managed by its board of directors * * *," and "unless otherwise provided in the certificate of incorporation, or in a by-law adopted by a vote of at least a majority of the stockholders." R.S. 14:8-20, from which the last quote is borrowed, reads:
"14:8-20. Working capital; directors may vary; dividends
Unless otherwise provided in the certificate of incorporation, or in a by-law adopted by a vote of at least a majority of the stockholders, the directors of every corporation organized under this title may, in their discretion, from time to time, fix and vary the amount of the working capital of the corporation and determine what, if any, dividends shall be declared and paid to stockholders out of its surplus or net profits. Dividends may be declared and paid in capital stock with or without par value."
The legislative history behind the enactment of R.S. 14:8-20 demonstrates that the declaration of dividends has had the attention of the Legislature, and its attempts to limit control over dividends were deemed unsatisfactory and ended, for the time being, in the enactment last quoted. The prior legislative attempts have been commented upon by our courts in no flattering terms. "* * * [T]he legislative experiment, in controlling the discretion of the managers of corporations in respect of the distribution of profits was somewhat dangerous, and brought about a situation which was liable to be productive of mischief, and exposed corporations to malicious and injurious attacks." Stevens v. United States Steel, 68 N.J. Eq. 373 (Ch. 1905). "Naturally, the amount needed for the legitimate purposes of the company's business must be determined by the directors, who are intrusted with the management of the company." Murray v. Beattie Mfg. Co., 79 N.J. Eq. 604 (E. & A. 1911).
Public policy with respect to corporate management has been established by the mandate of the Legislature to *421 be that "the business of every corporation shall be managed by its board of directors" and that "the directors of every corporation * * * may * * * determine what, if any, dividends shall be declared and paid to stockholders out of its surplus or net profits." Recognizing that the situation might arise in which this public policy might not be in the best interests of the corporation and its shareholders, the Legislature provided a means to permit the corporation to act contrary to such public policy. The device employed was to qualify the imposed discretion in the directors by providing that it could be avoided, but only where "otherwise provided in the certificate of incorporation, or in a by-law adopted by a vote of at least a majority of the stockholders * * *."
Article 7 of Constantin's by-laws reads:
"The Board of Directors shall by vote declare dividends from the surplus profits of the Corporation whenever, in their opinion, the condition of the Corporation's affairs will render it expedient for such dividend to be declared."
It is, in part, the inconsistency between the discretion imposed on the directors as to dividends and the mandatory declaration allegedly provided for in the 1952 amendment that requires judicial construction as between the charter, the by-laws and the statute. It may be conceded at the outset that where inconsistency exists between by-laws and certificate of incorporation, the latter ordinarily governs and it would seem more so where, as here, the conflict arose some years after the enactment of the by-law. However, the provision in the quoted by-law is consistent with R.S. 14:8-20 which vested discretion in the directors as to dividend declarations, and the fact that Article 7 of the by-laws was not amended when the 1952 amendment was adopted is some evidence that the 1952 amendment was not intended to divest the directors of discretion.
Can it be said that the statement that "the holders of the preferred stock shall be entitled to receive, and the *422 Company shall be bound to pay * * *" meets the requirements of "unless otherwise provided in the certificate of incorporation, or in a by-law * * *" of Constantin? This court must answer that question in the negative. The statute is clear that the corporate business is to be managed by its directors and that, unless otherwise provided in the charter or by-law the directors may, in their discretion determine what if any dividends shall be declared and paid. In such an important area of corporate policy as is the discretion of the board of directors as to declaration of dividends little should be left to implication. It is only by implication that the language "entitled to receive * * * and bound to pay" can be said to override the statutory discretion embodied in R.S. 14:8-20. As stated in Newark Publishers' Ass'n. v. Newark Typographical Union, 22 N.J. 419, 426 (1956):
"Interpretation is the process of giving meaning to the symbols of expression, taken and compared together in the setting of the circumstances. A subsidiary provision is not so to be interpreted as to conflict with the obvious `dominant' or `principal' purpose of the contract. We seek for the intention of the parties; and to this end the writing is to have a reasonable interpretation. Disproportionate emphasis upon a word or clause or a single provision does not serve the purpose of interpretation. Words and phrases are not to be isolated but related to the context and the contractual scheme as a whole, and given the meaning that comports with the probable intent and purpose; and thus the literal sense of terms may be qualified by the context." (Italics mine)
In light of the statutory provisions, the language of Article 7 of the by-laws and the well-settled attitude of the courts against implied repealers and the absence of a "clear and peremptory" denial of the directors' statutory right to discretionary control of dividends, the court holds that the amendment of 1952 does not make the payment of a dividend mandatory, if net profits are available therefor.
The holding of the court that the declaration of a dividend on the preferred stock is discretionary leaves for consideration only the question as to whether the failure to *423 declare and pay dividends constituted abuse of discretion under the circumstances.
It is settled that the declaration of dividends is within the discretion of the board of directors and that in the absence of abuse thereof, the court will not interfere. To entitle a stockholder to relief, the proper grounds therefor must clearly appear. The accountant called on behalf of the plaintiff testified that in computing net profits or surplus available for the payment of dividends, the directors were bound to make provision for contingent liabilities, and that the directors, in conformity with good accounting practice, were obligated to set aside funds to take care of such contingent liabilities. The accountant for the defendants, while he did not feel that it should be shown in the actual financial statement, testified that contingent liabilities should be called to their attention. He said:
"I would inform them as noted in the notes to the financial statement as to what the surplus is and to what this contingency is, and they would determine whether or not dividends were to be paid or would not have to be paid. They would have all of the facts before them for the necessary determination, inasmuch as this morning we were told that if they did it wrong, they would be personally liable." (Italics mine)
It thus appears from the experts themselves that the contingent liabilities of the corporation are matters that enter into the directors' judgment as to whether or not a dividend should be declared for a given year, and this court finds as a fact that the contingent income tax liabilities for 1952 through 1955 and the renegotiation liability for the years 1952 and 1953 were ample reasons why the board of directors withheld the declaration of a dividend on the preferred stock. There was no evidence submitted in this case which would justify this court in finding that the directors had abused their discretion in failing to declare a dividend on the preferred stock for the years in question.
A form of judgment may be submitted in accordance herewith.
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425 F. Supp. 407 (1976)
James Clarence THOMPSON, Plaintiff,
v.
Harold Felder McCOY, Individually and as Servant of James P. McKeown, III, d/b/a Piggly Wiggly Store No. 61, and James P. McKeown, III, d/b/a Piggly Wiggly No. 61, Defendants.
Civ. A. No. 76-1406.
United States District Court, D. South Carolina, Columbia Division.
October 1, 1976.
*408 Robert John Murphy, Jr., Charleston, S. C., Haskell & Haskell, Columbia, S. C., for plaintiff.
Douglas McKay, Jr., of McKay, Sherrill, Walker & Townsend, Columbia, S. C., for Harold Felder McCoy.
Jackson L. Barwick, Jr., of Belser, Baker, Belser, Barwick & Toal, Columbia, S. C., for James P. McKeown, III.
ORDER ON DEFENDANTS' MOTION TO DISMISS
HEMPHILL, District Judge.
The matter before this court is the defendant James P. McKeown, III's motion to dismiss plaintiff's action under 42 U.S.C. § 1983 for failure to state a claim upon which relief can be granted and to dismiss the common law claim against him for lack of pendent jurisdiction.
Through his complaint, the plaintiff alleges that, while shopping in the defendant McKeown's establishment, he was accosted, falsely accused, arrested and subsequently assaulted by the defendant McCoy, who was at the time employed by McKeown as a security guard. As a result of this occurrence the plaintiff has brought suit against both McCoy and McKeown under 42 U.S.C. § 1983 and under the state common law actions of false arrest, false imprisonment and malicious and warrantless prosecution. It is apparent from the complaint, as well as the plaintiff's brief in opposition to defendant's motion, that his claim against the defendant McKeown is based on the doctrine of respondeat superior, as there are no allegations that defendant McKeown participated in this incident in any fashion. The § 1983 claim is before the court under the grant of jurisdiction found in 28 U.S.C. § 1343, while the court's power to hear the common law claims is based upon the principles of pendent jurisdiction. The parties agree that jurisdiction over the common law claims depends solely on the validity of the § 1983 claim.
The defendant McKeown contends, quite simply, that the South Carolina Private Detective and Private Security Agency's Act, South Carolina Code Ann. § 56-646.1, et seq. (Cum.Supp.1975), which regulates the use of security guards in private business, fails to bestow the necessary authority upon him to satisfy the state action requirement imposed by 42 U.S.C. § 1983. Additionally, but in no way of secondary importance, he argues that, even if the state action requirement were satisfied, that the doctrine of respondeat superior does not apply to actions under § 1983.
*409 In order to determine whether the actions taken by the defendants were "under color of state law", with regards to § 1983, the court must look to the source of the power or authority which was supposedly abused and find if such power or authority existed by virtue of a grant from the State. "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941). The statute under examination here requires any business maintaining employees on its premises as security guards to be licensed by the State of South Carolina. South Carolina Code Ann. § 56-646.10 (Cum.Supp.1975).[1] This licensing provision requires that any employer hiring security guards register and supply extensive information to the South Carolina Law Enforcement Division (SLED) concerning the prospective employee's background and training. (SLED), in turn, must approve each applicant as being suitable for employment as a security guard. The most important feature of the Act as it relates to state action, is § 56-646.13,[2] which clothes state-approved private security guards with "the authority and power which sheriffs have to make arrests of any persons violating or charged with violating any of the criminal statutes of this state," while on the employer's premises.
Actions taken under this system of intensive regulation, combined with the statutory grant of police authority to approved applicants, reaches the necessary degree of state control and cooperation to be properly characterized as action taken "under color of state law." The statutory grant of power in this case is closely akin to that which was found to constitute state action in the case of DeCarlo v. Joseph Horne & Co., D.C., 251 F. Supp. 935 (1966), where the State of Pennsylvania, through its "Professional Thieves Act" authorized *410 company security officers to make valid legal arrests of persons "on the premises for an unlawful purpose." The reasoning of the court in that situation is equally applicable to the present case:
I can see no practical or substantial legal distinction between this case where a store detective is legally entitled to make an arrest under a state statute specifically implemented for this purpose which implicitly clothes the defendant with such right, and in so doing, violates the accused's constitutional rights, and a situation where a police officer in making an arrest by virtue of his authority impinges upon the same rights.
In Williams v. United States, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774 (1951), the Supreme Court treated in a similar fashion the acts of a Florida private detective who held a "Special Police Officer's Card" from the City of Miami. Although the case involved an alleged coerced confession under 18 U.S.C. § 242, the standards for determining "color of state law" and the reasoning of the court are equally applicable to actions under 42 U.S.C. § 1983. This court is aware of several cases holding that actions under state laws which allow a brief detention of suspected shoplifters by shopkeepers have not constituted action "under color of state law". Battle v. Dayton-Hudson Corp., 399 F. Supp. 900 (1975), Warren v. Cummings, D.C., 303 F. Supp. 803 (1969), Weyandt v. Mason's Stores, Inc., D.C., 279 F. Supp. 283 (1968). However, in all of these cases the grant of police power was more restricted than the South Carolina Act and none of the examined statutes had required registration, screening and approval of applicants by a central state law enforcement agency.
The defendant McKeown urges that the actual state police authority conferred by § 56-646.13 runs only to the security guard and not to the employer, with the effect being the only actions of the employee are "under color of state law." The argument of the plaintiff, who contends that the power of the state "runs through" the employer to the employee, is more persuasive. Under § 56-646.10 of this Act, it is the employer who enlists the assistance of state authority and benefits from it. The employer must register with the state, pay registration fees, and procure proper training for its security employees. Although the actual law enforcement authority goes to the security employee, it is granted only through the efforts and for the benefit of the employer. For this reason, any act committed by an employer pursuant to this statute, or apparently under authority granted by it, would be considered "under color of state law" and would be actionable under 42 U.S.C. § 1983 if the other requisites of such an action were present.
The defendant McKeown's primary argument, however, is that the doctrine of respondeat superior is inapplicable in actions under 42 U.S.C. § 1983 and, in absence direct involvement on his part in the alleged acts, the action against him should be dismissed.
The plaintiff, in opposition to the defendant's motion, relies on the case of Hill v. Toll, D.C., 320 F. Supp. 185 (1970), for the contention that respondeat superior is a viable theory in actions under § 1983. In that case, the court held a surety company liable for actions of two of its agents purely under the theory of respondeat superior in a § 1983 action. At that time, the court remarked, "no court has yet faced the issue of whether the doctrine of respondeat superior applies to 1983." 320 F.Supp. at 188. Since that decision the circuits have spoken clearly to the contrary and the Fourth Circuit has said recently that "the doctrine of respondeat superior is inapplicable in actions under 42 U.S.C. § 1983 where the sole relief sought is money damages." Shaver v. Morrissey, 539 F.2d 706 (4th Cir. 1976).[3] Other circuits are in general agreement *411 with this principle. Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973) (policemen-police chief); Adams v. Pate, 445 F.2d 105 (7th Cir. 1971) (corrections officer-warden). A clear statement of this principle is found in the district court case of Knipp v. Weikle, D.C., 405 F. Supp. 782 (1975) where the court, considering whether a sheriff should be held liable for the actions of a deputy under § 1983, said:
This court has consistently held that the doctrine of respondeat superior is inapplicable and actions brought under 42 U.S.C. § 1983. Therefore, absent an allegation that a named-defendant has personally subjected the plaintiff to a deprivation of his constitutional rights or has caused the conduct complained of or participated in some manner in the allegedly unlawful actions of his employee or subordinate officer, this Court has held a complaint insufficient to state a claim against such defendant under § 1983. (citations omitted)
The case of Draeger v. Grand Central Inc., 504 F.2d 142 (10th Cir. 1974) involved a consideration of the doctrine of respondeat superior applied to a factual situation very similar to the one before the court. In Draeger a private department store employed an off-duty policeman as a security guard and the guard allegedly violated the constitutional rights of the plaintiff. The court, without directly considering the question of state action on the part of the department store, said that the store could not be held liable for the acts of the defendant security guard under the theory of respondeat superior. That decision discussed two requirements for finding a private entity liable under § 1983, active participation in the allegedly improper acts and state action. In the present case there has been a finding of state action but there is no evidence or allegation to be found in the plaintiff's pleading of any active participation in this event on the part of the defendant McKeown. Since in the absence of such participation there can be no liability on his part under 42 U.S.C. § 1983, the complaint against the defendant McKeown on that cause of action should be dismissed. With the dismissal of the § 1983 action, this court is without jurisdiction to hear the common law claims and they, too, are dismissed.
Therefore, the defendant McKeown's motion is granted and the action against him before this court is dismissed.
AND IT IS SO ORDERED.
NOTES
[1] S.C.Code Ann. § 56-646.10 provides. Certain employers to be licensed.(a) Any person or corporation employing persons to do private security work on the premises and in connection with the affairs of such employer only, and there exists an employer-employee relationship, shall be required to make application to the Division for a license. In order to secure a license, such person or corporation must:
(1) Satisfy the Division that such person or corporation is financially responsible;
(2) Satisfy the Division that such person or corporation has a competent training officer and an adequate training program with a curriculum approved by the Division or that adequate training will be obtained from another source;
(3) Pay an annual license fee of twenty-five dollars. (b) Any person or corporation licensed in accordance with subsection (a) shall within twenty days of the beginning of employment of a person in private security work furnish the Division with the name, photograph, fingerprints and such other information as required by the Division in order to properly register such employees with the Division. The Division shall furnish forms for registration and each person so registered shall pay an annual registration fee of five dollars. No person shall be approved for employment who has been convicted of a felony or any crime involving moral turpitude that would tend to question his honesty or integrity, or who is an alcoholic, drifter, vagrant or person with a record of mental illness, or who has been discharged from the military service under other than honorable conditions, or who has been refused a license under the provisions of this chapter for any reason except minimum experience, or whose license, having been granted, has been revoked or is under suspension. Upon being satisfied of the suitability of the applicant for employment, the Division shall register the employee and so notify the licensee. The licensee shall notify the Division within five days of the termination of employment of any registered employees. The Division may waive the submission of fingerprints and photographs for any employee who has been employed by a person licensed under this chapter within the previous six months. Such registration shall be for one year and application for renewal shall be on a form furnished by the Division. (1973 (58) 673).
[2] S.C.Code Ann. § 56-646.13 provides: Licensees to have police powers.Any person covered by the provisions of § 56-646.9 or properly registered or licensed under this chapter who is hired or employed to patrol, guard or render a similar service on certain property shall be granted the authority and power which sheriffs have to make arrest of any persons violating or charged with violating any of the criminal statutes of this State, but shall have such powers of arrest only on the aforementioned property.
[3] See, Bursey v. Weatherford, 528 F.2d 483 (4th Cir. 1975) where recovery was allowed against the Chief of the South Carolina Law Enforcement Division only because he directly participated in the allegedly improper acts. The court indicated that liability would not lie under the theory of respondeat superior alone.
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56 N.J. Super. 438 (1959)
153 A.2d 364
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM G. THOMPSON, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted May 18, 1959.
Decided July 6, 1959.
*440 Before Judges PRICE, SULLIVAN and FOLEY.
Mr. William G. Thompson pro se (Mr. Albert G. Besser, assigned counsel for defendant-appellant on the brief).
Mr. John G. Thevos, Prosecutor, attorney for plaintiff-respondent (Mr. Edward J. Wolak, of counsel and on the brief).
The opinion of the court was delivered by FOLEY, J.A.D.
This is an appeal from a judgment of conviction and an order denying a motion for a new trial in the Passaic County Court.
On January 23, 1957 after a protracted trial, defendant was found guilty of the crime of abortion as defined by N.J.S. 2A:87-1:
"Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a pregnant woman, administers or prescribes or advises or directs her to take or swallow any poison, drug, medicine or noxious thing, or uses any instrument or means whatever, is guilty of a high misdemeanor." (Emphasis ours)
At the same trial William Trotter was acquitted upon a separate indictment charging him with aiding and abetting Thompson contrary to the provisions of N.J.S. 2A:85-14. The defendant was sentenced on February 15, 1957 to a term of not less than 12 nor more than 15 years in State Prison, which term he is presently serving. Defendant filed *441 a notice of appeal to this court on May 7, 1957. While this appeal was pending, he filed a motion for a new trial upon the grounds of newly discovered evidence, which was dismissed by the County Court because of the pendency of the appeal, R.R. 3:7-11. On June 27, 1957 this court appointed counsel upon defendant's application. On December 27, 1957 we granted defendant's motion to reinstate the motion for a new trial, and on April 11, 1958, after a plenary hearing, the motion was denied. On June 26, 1958 the request of assigned counsel that he be permitted to withdraw was granted and defendant was ordered to prosecute the appeal pro se. He then perfected his appeal. When the briefs and record were submitted to us in advance of the hearing date, the record suggested the possibility of error which had not been raised by defendant's brief. The court then offered defendant counsel, and the offer being accepted, Mr. Besser was appointed in such capacity. We have outlined the post-judgment progress of the case to make clear that the procedure has been orderly, despite the seemingly lengthy period of time intervening between the date of conviction and the hearing of the appeal.
The crucial questions to be determined are whether or not the court committed error in its charge (to which no objection was noted) and if so, whether it is such as to require reversal under R.R. 1:5-1 as "plain error."
The factual synthesis developed at the trial was the following:
Thelma B., a married woman ten weeks pregnant, died on July 28, 1956. An autopsy disclosed that the cause of death was a massive inter-abdominal hemorrhage resulting from two perforations of the uterus. In the early part of February 1956 Thelma met Trotter, a married man, in a cocktail lounge in which he was employed as a bartender. A friendship developed, in the course of which they had sexual intercourse. On June 23, 1956 Thelma informed Trotter that she was pregnant and insisted that, if he "did not do something about it," she would tell his wife. On *442 the following evening Thompson came to the bar with a female companion. Trotter told his troubles to Thompson. At Thompson's suggestion a meeting was arranged with Thelma immediately, and about midnight they called at her apartment, Thompson bringing with him a bag and a syringe. Thompson talked with Thelma out of Trotter's presence and, upon rejoining him, told him not to worry. They then left. About a month went by while Thelma was on a vacation. During this time she sent a letter to Trotter stating "Nothing yet. See you soon." Upon her return, Thelma again threatened that if Trotter did not "do something" she would tell his wife. Trotter relayed this information to Thompson, who said he would talk to her again and a meeting of Thelma and Thompson was arranged by Trotter for July 27, 1956. Late in the evening of that day, Thompson admitted Thelma to his apartment and, according to him, he then left for his shop. He stated that he returned 15 or 20 minutes later to find Thelma in the bathroom complaining of a stomach ache. He asked her to lie down and then walked into the kitchen to make a cup of tea, at which time he saw Thelma fall down, unconscious. Thompson then called a girl friend who came to the house. They replaced part of Thelma's clothing. She had been unclothed from the waist to the knees. They then went to Thelma's car, drove around for a time and, eventually, took her to the entrance of her home. There Thompson had a conversation with Mrs. Conover, a roommate of Thelma. He then left. Shortly thereafter Mrs. Conover called the police who arrived with an ambulance. The victim was taken to the Barnert Memorial Hospital in Paterson where she died.
The State concedes that its case was purely circumstantial but contends that under the authority of State v. Siciliano, 21 N.J. 249 (1956), there was sufficient proof to enable a jury to find that Thompson perpetrated the crime. We have no doubt that this is so, particularly in view of the medical proof that it was improbable that the victim could have herself inflicted the internal wounds which were *443 found on autopsy. If the question presented dealt only with the weight of the evidence we would unhesitatingly affirm the conviction.
But the problem is not that simple. At the outset it is noted that the court in its charge confined itself to a discussion of the legal principles which it found to be applicable to the case. While this was the court's prerogative, and it is not herein criticized, the fact that the law was not keyed to the testimony is a factor to be considered when the ability of the jury to apply the law as the court stated it to be, is put in question. After stating that separate indictments were being tried together, one charging Thompson with "the crime of abortion causing death," the other charging Trotter "with aiding and abetting an abortion causing death," and reading to the jury the provisions of N.J.S. 2A:87-1 the court charged:
"One is an aider and abettor in the commission of the crime where he was an active partner in the intent, which is the crime's basic element. A defendant can be convicted of abortion, even though he did not actually participate in the use of the instrument by being present, aiding, abetting, and assisting. A defendant may be convicted under an indictment charging him with the actual commission of the criminal act, although he was not personally present when he aided and abetted in the commission of the criminal act and where there was sufficient evidence to show he was an essential and conscious link in the chain of events leading up to the commission of the abortion. One who aids and abets in the commission of a crime is equally as guilty as the principal actor.
Of course, one cannot aid and abet in the commission of a crime if no crime has been committed. Consequently, the defendant Trotter cannot be found guilty of aiding and abetting unless Thompson is first found guilty of the crime." (Emphasis ours)
The foregoing is a proper statement of the law. Cf. State v. Ellrich, 10 N.J. 146 (1952). But the query is, was it applicable to this case in which only Thompson was charged with the crime of abortion? We think not. The offense of abortion was unknown to the common law. State v. Cooper, 22 N.J.L. 52 (Sup. Ct. 1849). The procuring of a miscarriage where the woman was "quick with child" was deemed *444 "a great misprision" because of the offense against the child for which the woman herself could be prosecuted. The offense against the woman was treated as an assault to which assent was a complete defense. State v. Cooper, supra. The Cooper case led to an amendment of the criminal code in which the crime of abortion was defined by L. 1849, p. 266, in substantially the same language as appears presently in N.J.S. 2A:87-1 supra. In construing the statute, our courts have held that a woman who aborts herself is guilty of no criminal offense and so cannot be convicted either as a principal or as an aider and abettor. She is regarded as the victim of the crime and not as the criminal. In re Vince, 2 N.J. 443 (1949); State v. Hyer, 39 N.J.L. 598 (Sup. Ct. 1877); State v. Murphy, 27 N.J.L. 112, 115 (Sup. Ct. 1858). Obviously, to be an aider and abettor the existence of a principal is indispensable. On the evidence presented here there were but two persons who could have inserted an instrument in the body of the victim. One was the victim, the other the defendant. Since the requirement of N.J.S. 2A:85-14 is that one "must * * * aid * * * another to commit a crime," the legal incapacity of the victim to commit the crime of abortion precluded conviction of the defendant as an aider or abettor even though he may consciously have been an essential link in the chain of events leading up to the fatality.
Considered in this setting the portion of the charge quoted above was plainly erroneous. As we have emphasized, only Thompson was charged with the commission of the crime. It is clear from the record, and indeed stressed by the State, that throughout the trial the narrow issue was whether Thompson performed the operation or whether, as he claimed, the victim aborted herself in his absence. Thus, when the court charged that "a defendant may be convicted under indictment charging him with the actual commission of the criminal act although he was not personally present," it was open to the jury to find that since Thompson was the only defendant charged with the crime of abortion he should *445 be found guilty if he aided and abetted the victim, even though he was absent at the time of the occurrence. If this premise was adopted by the jury, the adverse effect on the defense was incalculable. The prominent part played by defendant in aiding and in counselling the victim, culminating in his providing her with the privacy of an apartment, was convincingly proved, and his partnership in a nefarious conspiracy, of which incidentally, both he and Trotter were subsequently convicted, was amply demonstrated. Lack of presence at the time the miscarriage was brought about was basic to his defense. If the jury understood from the charge that he could be convicted although absent, no vestige of defense remained.
The charge had great potentiality for harm in another respect. Nowhere in the instructions was the jury told that should they find the miscarriage to have been induced solely by the act of the victim herself, neither defendant could be found guilty of the charges laid against them. The components of the crime of "abortion" were described in a way so general that to the lay minds it might likely occur that if the victim aborted herself Thompson could be held as an aider and abettor.
We find to be persuasive the argument that to the lay mind an "abortion" means the inducement of a miscarriage not necessarily attended by those circumstances which make the act criminal under our statute. To the layman, if a woman induces her own miscarriage, that act constitutes an abortion even though she is criminally not accountable for her behavior. "Abortion" is defined in Webster's New World Dictionary (Col. ed. 1952), 4 as:
"the expulsion of the human fetus prematurely, particularly at any time before it is viable; miscarriage."
and Perkins, Criminal Law (1957), p. 99 has this to say:
"There has been an unusual lack of precision in the use of words in this field. The word `abortion' in the dictionary sense, means *446 no more than the expulsion of a fetus before it is capable of living. In this sense it is a synonym of `miscarriage.' With respect to human beings, however, it has long been used to refer to an intentionally induced miscarriage as distinguished from one resulting naturally or by accident."
We are mindful of the established rule that in ascertaining whether or not error was committed a single sentence may not be extracted and construed without regard to the context of the entire charge, but that the charge must be read as a whole in the light of a sensible construction to determine its legal worth. State v. Ellrich, supra; State v. Peterson, 10 N.J. 155 (1952). And we recognize that the test is "how and in what sense, under the evidence before them and the circumstances of the trial, would ordinary men and jurors understand the instructions as a whole." State v. Ellrich, supra; State v. Pitman, 98 N.J.L. 626 (Sup. Ct. 1923).
With these principles in mind, we find harmful error in the charge in the respects in which it has been criticized. Specifically, it is our conclusion that quoted portions of the charge were likely to have created a misunderstanding that a conviction could be founded on the proof of the aid rendered to the victim by the defendant; and that the likelihood of such misunderstanding was enhanced by the failure to instruct the jury that the victim lacked legal capacity to commit the crime of abortion. In our judgment the error committed was of such magnitude as to be regarded as "plain error." R.R. 1:5-1(a).
This disposition makes it unnecessary for us to consider the remaining points raised. The judgment is reversed and a new trial ordered.
SULLIVAN, J.A.D. (dissenting).
It is my conclusion that the portion of the court's charge held by the majority opinion to be prejudicial to Thompson and to constitute harmful error did not refer to Thompson at all, but rather to his co-defendant Trotter.
*447 I concede that the charge could have been a better one. It must be read, however, in the light of the indictments, the evidence presented at the eight-day trial, the claim of the State, and the defense asserted. In substance Thompson was charged with committing the abortion by the use of an instrument. Trotter, who was charged with getting him to do it, has been acquitted, so he is no longer in the case. Thompson's defense was that he had done nothing more than permit the woman to use his apartment for the purpose of aborting herself, and that she had in fact performed the abortion on herself. To this defense the State produced expert medical testimony that because of the kind, method and manner of abortion performed it was "highly improbable" that the woman did it herself, and that it would have been "almost impossible" for her to do so.
The case, therefore, resolved itself into the clear position taken by the State that Thompson had actually performed this abortion on the woman and that she could not have done it herself. The summation by the State at the close of the case points up this single factual issue.
"What must the State prove in this particular case? We must prove, first, that with the intent to cause the abortion of a pregnant woman an instrument `of some sort or means whatever' was used. There is no question that Thelma Barcus was pregnant. The doctor testified to that. He found a two-and-a-half-month-old foetus or unborn child in the uterus of Thelma Barcus. So we will forget that.
Secondly, that some sort of an instrument was used upon her, by the perforations he described in the uterus, and that they were used with the intent to cause the miscarriage of Thelma Barcus, because, as you remember, he testified that the foetus had been displaced. So there is no question about that.
The question is, Did Thompson do it and did Trotter seek him out to do it? We don't have to prove that Trotter was there that night. If Trotter asked him to do it and he knew that he was going to do it, that is aiding and abetting."
Further on in its summation the State says:
"The question that you have to decide is, From the evidence presented is it clear in your minds beyond a reasonable doubt that Thompson performed this abortion on Thelma Barcus?"
*448 Later on we have this reference to Thompson:
"There is another factor, another piece in this jigsaw puzzle, to show that Thompson, the only one that was there, as sure as I am standing here, inserted that instrument, whatever it was, into the uterus of Thelma Barcus."
Nowhere did the State contend that Thompson was guilty if he did not actually perform the abortion himself. As a matter of fact, the State conceded in its summation that if Thompson were telling the truth, he had nothing to fear.
Against this background of the indictments, the testimony, the State's claim, and the defendant's story, we come to the court's charge.
The jury was told that there were two indictments: one against Thompson for committing the abortion, and the other against Trotter for aiding and abetting. The court then defined the crime of abortion under the statute and the necessary elements to establish guilt, one of which, under the particular indictment, was the use of an instrument. This part of the charge obviously referred to Thompson. Then the court took up the matter of aiding and abetting and in doing so used the language complained of. Trotter, however, was the one charged with aiding and abetting, so that this part of the charge related to Trotter only. The State's claim was that Trotter's only connection with the abortion was that he got Thompson to perform it. It was undisputed that Trotter was at Greenwood Lake when the abortion was performed. The court therefore told the jury that it could find Trotter guilty of aiding and abetting even though "he did not actually participate in the use of the instrument" and "although he was not personally present when he aided and abetted." I just do not see how the jury could have possibly understood that the court was talking about Thompson because the court went on to say that
"Of course, one cannot aid and abet in the commission of a crime if no crime has been committed. Consequently, the defendant *449 Trotter cannot be found guilty of aiding and abetting unless Thompson is first found guilty of the crime."
This cited language clearly defines and limits the use and application of the preceding paragraph.
The charge in question was not objected to at the trial, on the motion for a new trial, or even on this appeal. It was only after this court called the attention of the parties to the possibility of error therein, that the question was briefed.
The jury could not have found Thompson guilty unless it concluded that he had actually performed the abortion. That is what the indictment charged him with; that is what the State contended he did; and that is what the court told the jury it must determine. To say that the jury somehow might have found Thompson guilty even though it disbelieved the State's case and accepted Thompson's story as true, is to disregard the whole atmosphere and background of the trial.
I see no harmful error in the charge in the respects in which it has been criticized.
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153 A.2d 603 (1959)
FARM BUREAU MUTUAL INSURANCE CO.
v.
George F. KELLEY.
Supreme Judicial Court of Maine.
July 2, 1959.
Berman & Berman, Lewiston, for plaintiff.
Robinson, Richardson & Leddy, Portland, for defendant.
Before WILLIAMSON, C.J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.
*604 TAPLEY, Justice.
On exceptions. The case was tried before a jury in the Superior Court, within and for the County of Androscoggin. Defendant requested an instruction to be included in the charge of the presiding Justice to the jury. The requested instruction was refused and the defendant took exceptions to the refusal. The case involves the collision of two motor vehicles which took place on Cushing Street, a public street in the City of Auburn. The accident happened on the morning of January 7, 1958. Plaintiff, through its agent and servant, was operating its motor vehicle in an easterly direction along Cushing Street, while the defendant was operating his car in a westerly direction on Cushing Street. The only two witnesses to the accident were Mr. Walker, driver of plaintiff's car, and Mr. Kelley, the defendant. They do not agree as to each other's actions immediately preceding the impact but there is no disagreement as to the presence of parked cars and trucks on the street and that the northerly half of the west bound lane was blocked at the point of accident. On the northerly side of the street is a curbing, while the southerly side of the street is bordered by a gravel shoulder. On the morning of the accident there were cars parked in the area on the graveled shoulder between the edge of the macadam and a fence. Pleasure cars were parked along the curbing on the northerly side, with a large tractor and trailer tank unit double-parked. Easterly of the parked pleasure cars was a truck parked at right angles to the northerly curbing with its front end at or near the center line of Cushing Street. The two cars collided at a point between the truck, which was double-parked, and the southerly edge of the macadam road. This area lies south of the parked truck and on the southerly side of the middle of the wrought way which would be on plaintiff's right and defendant's left as the cars approached each other. A rule of the road statute is involved. This statute is Sec. 83, Chap. 22, R.S. 1954 and reads:
"Teams meeting shall turn to right. When persons traveling with a team are approaching to meet on a way, they shall seasonably turn to the right of the middle of the traveled part of it so that they can pass each other without interference. When it is unsafe, or difficult on account of weight of load to do so, a person about to be met or overtaken, if requested, shall stop a reasonable time, at a convenient place, to enable the other to pass." (Emphasis supplied.)
The defendant requested the following instruction:
"You are instructed that the traveled part of the road in this case is that part of Cushing Street to the south of the parked vehicles that have been described by the parties as being present at or near the point of accident." (Emphasis supplied.)
The presiding Justice refused to give this instruction, and to this refusal the defendant excepted. The requested instruction, in essence, becomes a definition of the words "traveled part" of the way as used in Sec. 83, Chap. 22, R.S.1954 and when applied to the circumstances of the instant case means that portion of the road between the parked vehicles and the edge of the road.
The presiding Justice in his charge informed the jury of the existence of the statute (Sec. 83, Chap. 22, R.S.1954) and explained the effect of its violation as evidence of negligence. The charge as given appears satisfactory to both parties as lack of exceptions testify.
The statute was passed by the Legislature at a period when teams were the principal mode of transportation. It is reasonable to suppose that the legislators who enacted this rule of the road were not cognizant of the fact that the statute would be subject to construction under road and traffic conditions as obtain in this case where the temporary parking of motor *605 vehicles causes a diminishing of the width of the wrought portion of the way. This statute of ancient vintage is now applicable to the operation of motor vehicles on our public highways. Bragdon v. Kellogg, 118 Me. 42, 105 A. 433, 6 A.L.R. 669.
If the words, "traveled part" of the highway, as used in the statute, mean that portion of the road which is bounded by the curbing on the one side and the graveled shoulder on the other, then the presiding Justice properly refused the requested instruction. On the other hand, if under the circumstances of this case the traveled part applies to that portion of the highway between the double-parked truck and the southern edge of the macadam road which, incidentally, was practically that portion south of the center line, then the presiding Justice was in error in refusing to give the instruction.
In the case of Palmer v. Barker, 11 Me. 338, decided in 1834, the Court was concerned with a law of the road statute which required travelers to keep "`to the right of the centre of the travelled part of the road.'" The Court said, on page 339:
"The design of the law is to prevent travellers, when going on the road in opposite directions from obstructing each other, or so interfering as to produce injury or expose them to danger."
Winter v. Harris, 23 R.I. 47, 49 A. 398, 54 L.R.A. 643, construes a statute similar to the one in the instant case. The accident concerned the collision of two carriages being driven on a public street toward each other. The street at the place of the accident was 40 feet wide from curb to curb, 24 feet and 8 inches of the width was paved with cobblestones and the remainder was macadamized. The macadamized portion was favored by users of the street but the whole width was in good order and condition for traveling. The plaintiff claimed that she was traveling on the right hand side of the center of the macadamized part of the road which was commonly and habitually used by travelers, and that it was this portion that constituted the "traveled part of the road as used in the statute." The Court said, 23 R.I. on page 54, 49 A. on page 400:
"We think that the weight of both reason and authority favors the construction that the traveled part of Broad street, at the time and place of the accident, was the whole width from curb to curb, and it is admitted that the plaintiff's buggy at the time in question, was on the left of the centre of said traveled part as thus construed."
The entire paved area of a street must be considered in determining the position of the center line. Fuson v. Cantrell, 25 Tenn.App. 608, 166 S.W.2d 405. In Elswick v. Charleston Transit Co., 128 W.Va. 241, 36 S.E.2d 419, 426, the question of the location of the "center of the highway" was involved. The Court, 36 S.E.2d on page 426, said:
"Here, Washington Street, as this record discloses, was well established on the ground, the outer boundaries being the north and south curbs of the street. The fact that the southern third of the street at times may have been used for parking purposes does not serve to confine the width of the street to the remaining two-thirds lying to the north thereof."
Clark v. Commonwealth, 4 Pick., Mass., 125 treats of a statute comparable in its terms to the one under discussion. The Court said of the statute, on page 126:
"By `the travelled part' of the road is intended that part which is usually wrought for travelling. A traveller is not obliged, because a track happens to have been made on one side of the part so wrought, to turn to the right of the centre of this track. If he turns to the right of the centre of the wrought part, so that there is room on the wrought part for the other traveller to pass, it is sufficient, * * *."
*606 In Jaquith v. Richardson, 8 Metc., Mass., 213 the Court in its opinion made reference to the ruling in Clark v. Commonwealth, supra, by saying, on page 216:
"We have no doubt of the correctness of the ruling in that case, and that the revised statutes are to receive a similar construction. But the circumstances there considered are different from those in the case at bar, and they do not control it. We are now called upon to apply the law, which is a most beneficial one, and conducive to the safety and convenience of all the inhabitants of the Commonwealth, to a state of the public road, when, from the season of the year, and the quantity of snow on the ground, the wrought path was obscured from the eye, and the travelled and beaten path was on the right of the centre of the wrought path. And here we cannot doubt but that the path then beaten and travelled by those passing and repassing on the way, with their sleds and sleighs, was one of those roads contemplated by the framers of the statute, and within its spirit and purview, and that the wrought part is not, for the time being, the travelled path to which the law of the road is restricted; but that the law is as well applicable to the path, as actually travelled upon the snow, as it is to the wrought part in different seasons of the year."
The Jaquith case had no quarrel with the ruling in the Clark case as it was applied to the circumstances there obtaining but due to the fact that the Jaquith case was concerned with a roadway which was for the most part obscured from the eye by fallen snow, the Court determined that the path beaten and traveled by those passing and repassing on the way had established the traveled way to which the provisions of the statutes would apply. See Lahiff v. McAloon, 152 Minn. 517, 189 N.W. 435.
There are no cases in this jurisdiction which can be cited as defining that portion of Cushing Street south of the parked vehicles as being the traveled part of the way as the term is used in Sec. 83, Chap. 22, R.S.1954. The statute was enacted many years ago and under circumstances of traffic conditions much different than prevail today. The provisions of the statute, however, that require approaching traffic to seasonably turn to the right of the middle of the road in order that vehicles may pass each other without collision and damage, constitute a sound and reasonable rule of the road under present day traffic conditions. We have cited rulings of other jurisdictions based on similar statutes which determine that under ordinary circumstances the traveled portion of the way is that part of the way wrought for that purpose and commonly used as such or so constructed that it could be used. Where the wrought portion of the way customarily used for traffic is obscured from view by fallen snow and traffic has beaten a path or track on it, then that portion becomes the traveled part of the way within the intent and purview of the statute.
The circumstances of this case present entirely different conditions. In the case at bar the narrowing of the normal width of Cushing Street was occasioned by the parked automobiles and trucks to the extent of obstructing at one point an entire one-half of the wrought way. According to the testimony, the jury could have found that the defendant drove his vehicle on his left hand side of the road to clear the first parked truck then returned to his own side of the road until he reached the double-parked trailer truck, at which time he swung again to his left continuing along on what would ordinarily be the plaintiff's side of the highway to a point where the cars collided. Upon this factual aspect of the case, the defendant urges that the provisions of Sec. 83 apply and that the presiding Justice was in error in not instructing the jury that the traveled part of the way was that portion of the road south of the parked cars. The narrowing of the highway was not caused by fallen snow, *607 but its width was diminished by the presence of parked cars. It is common knowledge that motorists are continually confronted with problems of proper operation of motor cars in face of traffic conditions created by parked vehicles. The statute was enacted for the purpose of regulating horse drawn vehicles at a time when automobiles were unheard of. There were no macadam or cement roads with gravel shouldersthere were no markings dividing the traveled portions, but only gravel or dirt roads bearing the evidence of travel as made by the passing and repassing of horse drawn vehicles. In time, and by use, a traveled part of the way was established by distinct tracks upon the face of the earth. In winter when the snows came, the traveled part was created in the same manner although possibly not on the same part of the road. The Legislature in its wisdom saw the advisability of regulating the use of teams on this kind of way. From this type of road has developed the modern highway and in place of the horse and buggy we have the automobile. Certainly the framers of the statute could never have foreseen its application to the circumstances in this case. The parked cars on the northerly side of Cushing Street, along with the double-parked tank truck and the truck that was protruding into the street, constituted a mere temporary occupancy of the street. They themselves were making use of a portion of the "traveled part" of the way. They by their presence for a comparatively brief time did not change in any manner the traveled part of the way as it existed previous to their presence on the road. The parked vehicles did not in any way affect or change the "traveled part" of the way but did create a traffic condition which required extra care and caution on the part of the motorists driving in this area.
We are of the opinion and so hold that under the circumstances of this case the words of the statute "traveled part" are not limited in application to that portion of Cushing Street to the south of the parked vehicles. The presiding Justice properly charged as to the rule of the road statute (Chap. 22, Sec. 83, R.S.1954) according to the factual aspect of the case and his refusal to give the requested instruction was not error.
Exceptions overruled.
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915 N.E.2d 209 (2009)
STELZEL
v.
STATE.
No. 49A02-0903-CR-234.
Court of Appeals of Indiana.
October 21, 2009.
VAIDIK, J.
Disposition of case by unpublished memorandum decision Affirmed, Reversed and Remanded.
BAILEY, J., concurs.
BRADFORD, J., concurs.
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742 S.W.2d 523 (1987)
OMNIPHONE, INC., et al., Appellants,
v.
SOUTHWESTERN BELL TELEPHONE COMPANY, et al., Appellees.
No. 3-87-207-CV.
Court of Appeals of Texas, Austin.
December 16, 1987.
Rehearing Denied January 20, 1988.
*524 Charmaine J. Rhodes, Law Offices of Jim Boyle, Austin, for Omniphone, Inc., Ultraphone, Inc., Spectrum Advertising, Inc., HLD, Inc., and Christian Fellowship Institute.
Leon J. Barish, Barish & Van Helden, Austin, for Audio Five, Inc. and GGP, Inc.
Mike Aranson, Aranson & Shor, Dallas, for Netcom and Teleinfonet.
Robert J. Hearon, Jr., Graves, Dougherty, Hearon & Moody, Austin, for Southwestern Bell Telephone Co.
Jim Mattox, Atty. Gen., Stephen J. Davis, Asst. Atty. Gen., Austin, for The Public Utility Com'n of Texas.
Before SHANNON, C.J., and GAMMAGE and CARROLL, JJ.
SHANNON, Chief Justice.
Before the Public Utility Commission entered a final order in its proceeding in which a Southwestern Bell Telephone tariff is challenged, appellants[1] filed a declaratory judgment suit in Travis County. By their suit, appellants sought a declaration concerning the validity of the tariff. Ancillary to their declaratory judgment suit, appellants sought a temporary injunction. After hearing, the district court rendered judgment denying appellants' application for a temporary injunction. This Court will affirm that judgment.[2]
Appellants are subscribers to a service offered by Southwestern Bell Telephone, known as "Dial 976." By this service, the telephone company provides telecommunications, billing, and collections services for "information providers" (or "sponsors") such as appellants. The "clients" or customers dial a number beginning with "976" in order to gain access to messages provided by the sponsors by way of the telephone company's lines. The telephone company bills the clients, collects the charges, subtracts a fee for its handling services, and remits the remainder of the charges to the sponsors.
The telephone company filed, and the Public Utility Commission approved, tariff provisions which set forth the type of activities which are permissible under the "Dial 976" service. The pertinent section of the telephone company's General Exchange Tariff (§ 2.2.14) provides as follows: "`Dial 976' ... is intended only for the purpose of delivering recorded messages. It is not provided for receiving messages from clients nor for transmission of live (non-recorded) messages nor for data transmission."
*525 The Commission received information that appellants were not abiding by the terms of § 2.2.14 in that they were engaging in the transmission of "live" (non-recorded) messages. The telephone company also became aware of possible violations and, after beginning an investigation, the telephone company received a telephone call on January 2, 1987, from an attorney in the general counsel's office of the Commission. The attorney informed the telephone company that the Commission had received complaints that live messages were being received and transmitted on the "Dial 976" service. The Commission attorney told the telephone company employees to disconnect appellants'"Dial 976" service "as soon as possible." On or about January 5, 1987, the telephone company gave notice to the appellants that it intended to disconnect their "Dial 976" service.
After receiving the disconnection notices, the appellants filed complaints with the Commission challenging § 2.2.14 and seeking, primarily, an order prohibiting disconnection of the "Dial 976" service. The Commission denied appellants' request for an order prohibiting disconnection of the "Dial 976" service. Appellant's challenge of § 2.2.14 presently pends before the agency.
By the declaratory judgment suit, filed presumably pursuant to Tex.Rev.Civ.Stat. Ann. art. 6252-13a, § 12, appellants seek a declaration that § 2.2.14 is unconstitutional as a violation of the First Amendment of the Constitution of the United States and, further, that it is in violation of Tex.Rev. Civ.Stat.Ann. art. 1446c, §§ 38, 45 (Supp. 1987).
In an appeal from an order denying (or granting) an application for a temporary injunction, appellate review is confined to the validity of the order denying (or granting) the injunctive relief and the merits of the underlying lawsuit are not presented for review. Davis v. Huey, 571 S.W.2d 859 (Tex.1978). Indeed, appellate consideration of the merits of the underlying lawsuit in an appeal of a temporary order is error. Id.; Hertz Corp. v. State Dept. of Highways, 728 S.W.2d 917, 919 (Tex.App.1987, no writ). In a hearing on an application for a temporary injunction, the only question before the trial court is the appellant's right to the preservation of the status quo of the subject matter of the suit, pending a final trial on their merits. To warrant the issuance of a temporary injunction, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. The trial court is clothed with broad discretion in determining whether the pleadings and evidence present a case of probable right and probable injury. The trial court's order in issuing or denying the writ of injunction will be reversed only on a showing of a clear abuse of discretion. Transport Co. of Texas v. Robertson Transports, Inc., 261 S.W.2d 549 (Tex.1953). These rules are applicable in appellate review of a judgment rendered in a temporary injunction proceeding ancillary to a declaratory judgment suit. Public Utility Commission v. City of Austin, 710 S.W.2d 658, 660 (Tex. App.1986, no writ).
For appellants to demonstrate a probable right to judgment based on a claim that their first amendment rights would be violated if the telephone company terminates their "Dial 976" service, they must first succeed in establishing that there is a likelihood that such act would constitute "state action." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). To establish state action, one must show that the state has, by its actions, exercised coercive power or "provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State" or that a private party has assumed a function which is traditionally "public" in nature. Blum v. Yaretzky, 457 U.S. 991, 1005, 102 S. Ct. 2777, 2786, 73 L. Ed. 2d 534 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. at 353-355, 95 S.Ct. at 454-56.
The passive approval of a public utility's proposed tariff by a state agency does not constitute state action. Jackson v. Metropolitan Edison Co., supra. *526 Where the utility, itself, enforces the provision in the tariff, there is no state action. Id. at 355, 95 S.Ct. at 455-56 (utility's disconnection of electric service not state action). If, however, the state "puts its weight on the side" of the utility's action by ordering it, then such act becomes that of the state. Id. at 358, 95 S.Ct. at 457. The party contending that state action is present must show that "there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Id. at 351, 95 S.Ct. at 453; see Blum v. Yaretsky, supra.
Appellants point to the telephone call made by the Commission's attorney to the telephone company as one basis for their claim that the disconnection of their "Dial 976" service would constitute state action and, in support of that contention, rely on Carlin Communications v. Mountain St. Tel. & Tel., 827 F.2d 1291 (9th Cir.1987). In Mountain States, the telephone company disconnected Carlin's "Dial 976" service which supplied messages sexually explicit in nature. Before disconnection, a deputy county attorney wrote to Mountain States threatening to prosecute it under an Arizona law prohibiting the distribution of sexually explicit materials to minors unless Mountain States terminated Carlin's "Dial 976" service.
The court in Mountain States concluded that the prosecutor's letter represented an exercise of "coercive power" over Mountain States and, accordingly, that the subsequent disconnection of Carlin's "976" service constituted state action even though there was conflicting evidence whether the letter had actually been the motivating force behind Mountain State's action. Once the state has wielded its coercive power in this manner, the Court of Appeals reasoned, subsequent measures by the utility are deemed to be state action regardless of the actual impetus for the action. Id.
The opinion of the United States Court of Appeals for the 9th Circuit in Mountain States, supra, is, of course, not binding on this Court or the district court of Travis County. Barstow v. State of Texas, 742 S.W.2d 495 (Tex.App.Austin 1987); Woodard v. Texas Dept. of Human Resources, 573 S.W.2d 596 (Tex.Civ.App. 1978, writ ref'd n.r.e.); Moore and Oglebay, The Supreme Court, Stare Decisis and Law of the Case, 21 Tex. L. Rev. 514 (1943),[3] nor are we persuaded by its reasoning in the disposition of this appeal.
The proof in the present appeal is that, before the call from the Commission's attorney, the telephone company had already initiated and completed its investigation and concluded that appellants were in violation of the tariff. In fact, before the attorney's call, the telephone company had prepared termination notices to "Dial 976" companies in violation of the tariff and had forwarded those notices to its legal department for review prior to mailing. Finally, there was evidence, which the district court apparently believed, that the termination notices to the appellants were mailed upon the basis of the telephone company's investigation rather than from any prompting by the Commission's attorney.
Moreover, appellants marshalled no proof showing the authority vel non of the attorney to act for the Commission in assuming to order disconnection of the offending "Dial 976" companies. Only the Commission acting as a body can actually compel the telephone company to terminate appellants' service in enforcement of the tariff. See City of Frisco v. Texas Water Comm'n., 579 S.W.2d 66, 72 (Tex.Civ.App. 1979, writ ref'd n.r.e.).
Under this record, this Court is not persuaded that the district court abused its discretion in failing to conclude that the Commission "exercised coercive power or *527... provided such significant encouragement" that the telephone company's actions "must in law be deemed to be that of the State." Blum v. Yaretsky, supra.
Appellants further claim that they have established state action because the Commission pressured the telephone company to include language in the pertinent section of the tariff to the effect that only recorded messages could be transmitted on its "Dial 976" service. See Carlin Communications v. Southern Bell, 802 F.2d 1352 (11th Cir.1986). The proof, however, is conflicting with regard to whether the Commission exerted such pressure. In these circumstances, it is within the discretion of the trial court to deny interlocutory relief. Davis v. Huey, supra.
Appellants also attempt to predicate their state action claim upon evidence that the telephone company assumed the public function of protecting minors from obscene speech. The evidence is conflicting whether the telephone company requested the tariff provision because it desired to protect minors from such speech. The district court could have concluded that the telephone company had no such objective and rather adopted such a policy to protect its "corporate image." Under this state of the record, the district court did not err in denying interlocutory relief. Davis v. Huey, supra.
In this limited appeal, this Court cannot fairly conclude that the district court abused its discretion in failing to determine that the telephone company's termination of the "Dial 976" service constituted state action. Having so decided, this Court need not proceed to investigate appellants' claim that § 2.2.14 of the tariff violated appellant's First Amendment right to freedom of speech.
By their suit, appellants also sought a declaration that the telephone company unreasonably discriminated against them by prohibiting live communication on its "Dial 976" service but allowing such communications on AT & T's "700" and "900" services. In addition to the billing and collections services which the telephone company provides under its own "Dial 976" service, the telephone company provides such services for AT & T's "700" and "900" services. Contrary to its position regarding its own "Dial 976" service, the telephone company does not prohibit AT & T from allowing certain types of live communications on the latter's "700" and "900" services. Appellants contend that this difference in treatment constitutes unlawful discrimination. Appellants' claim is grounded on § 45 of the Public Utility Regulatory Act (PURA), Tex.Rev.Civ.Stat.Ann. art. 1446c, § 45 (Supp.1987). Section 45 provides
No public utility may, as to rates or services, make or grant any unreasonable preference or advantage to any corporation or person within any classification, or subject any corporation or person within any classification to any unreasonable prejudice or disadvantage. Id.
(Emphasis supplied).
The statute does not prohibit discrimination per se but only unreasonable discrimination. In determining whether unlawful discrimination exists, the Court must determine whether the alleged discrimination falls within "a permissible range of unequal treatment which, while literally discriminatory, is not unlawfully so." Amtel Communications, Inc. v. Public Utility Commission, 687 S.W.2d 95, 102 (Tex.App.1985, no writ). Even given certain dissimilarities between services or customers, a party must show why the dissimilarity presents a substantial and reasonable ground for treating the parties differently. AT & T Communications v. Pub. Util. Com'n, 735 S.W.2d 866, 871 (Tex.App.1987, writ pending).
One major difference between the "Dial 976" service and AT & T's "700" and "900" services is that the "Dial 976" service is offered by the telephone company whereas the other two services are not. The telephone company only sells AT & T access to its lines and provides billing and collection functions for these services. The telephone company (or the Commission) does not have the ability to regulate the format of the AT & T services.
*528 Even where parties are not similarly situated, the utility must show "why the dissimilarity represents a substantial and reasonable ground for treating the parties differently." AT & T Communications v. Pub. Util. Com'n, supra at 871. The telephone company emphasizes the importance of maintaining its "corporate image." The types of activities allowed on its own "Dial 976" service would tend to have a stronger effect on the telephone company's "image" than activities which occur on AT & T's "700" and "900" services. The evidence was that the telephone company was highly conscious of the fact that charges for AT & T's services were billed on a separate sheet than those charges for its services. The telephone company makes clear which services it provides and which services AT & T provides. There appears to be a "substantial and reasonable ground" for allowing AT & T to have live communications on its "700" and "900" services while prohibiting such speech on the telephone company's "Dial 976" services. AT & T Communications v. Pub. Util. Com'n, supra at 871.
There are other basic dissimilarities between AT & T's services and the telephone company's "Dial 976" service. The access tariffs for AT & T's "700" and "900" services do not allow a participant (e.g. a "sponsor" such as one of the appellants) on a telephone call to make a charge for that participation which would be billed by the carrier. The two AT & T services do not allow for the adult conversations which the appellants desire to sponsor, because there is no billing and collections service available to parties such as the appellants under the "700" and "900" services. The telephone company only bills and collects for AT & T and not for someone who might want to make use of AT & T's services.
In addition, the AT & T "900" service is not interactive in nature; callers to the service can only listen. The "700" service is a "teleconferencing" service in which users provide specific telephone numbers to which connection is desired for conference discussion. It does not provide for random calling nor does it permit the party setting up the call to bill other callers for that service through AT & T or the telephone company.
These are fairly significant distinctions between the types of services offered by AT & T and the telephone company. These dissimilarities also provide a reasonable basis for discriminating in the types of activities allowed on the services. As noted above, the activities allowed on the "700" and "900" services do not reflect on the telephone company's "corporate image" to the extent of activities on the "Dial 976" service. Furthermore, AT & T's services are not amenable to the types of programs desired to be offered by appellants. Even to the extent that AT & T's services might reflect on the telephone company, there is little likelihood that the live programs which appellants desire to offer could be economically successful on the "700" and "900" services. Accordingly, the telephone company has little reason to attempt to prohibit live speech on these services.
In sum, because it appears to this Court that appellants did not demonstrate a probability of success on their statutory discrimination claim, the district court did not err in denying interlocutory relief. Appellants' point of error is overruled.
The judgment is affirmed; the orders in Nos. 3-87-200-CV and 3-87-201-CV will be dissolved when this Court loses jurisdiction of the appeal.
CARROLL, J., not participating.
NOTES
[1] Omniphone, Inc. Ultraphone, Inc. Christian Fellowship Institute HLD, Inc. Spectrum Advertising, Inc. Audio Five, Inc. GGP, Inc.
[2] After appellants perfected an appeal from the order denying interlocutory relief, appellants filed original proceedings in this Court, pursuant to Tex.Gov't Code § 22.221(a). By their original proceedings, Nos. 3-87-200-CV and 3-87-201-CV, appellants sought orders from this Court protecting its jurisdiction by preserving the subject matter of the appeal pending a hearing by this Court. This Court granted the requested relief and entered orders enjoining Southwestern Bell Telephone Co. from proceeding with the disconnection of the "Dial 976" telephone service. In light of the disposition of this appeal, this Court will dissolve the injunctive orders.
[3] While a decision of a federal court, other than the Supreme Court, may be persuasive in a state court on a federal matter, it is, nevertheless, not binding, since the state court owes obedience to only one federal court, namely, the Supreme Court. The converse is also true: a decision of a state court on a federal matter may be persuasive in the federal courts but is not binding. Moore & Oglebay, supra.
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189 A.2d 550 (1963)
Louis G. WHITCOMB et al.
v.
TOWN OF SPRINGFIELD.
No. 1214.
Supreme Court of Vermont.
March 6, 1963.
*551 Whitcomb, Clark & Moeser, Springfield, for plaintiff.
Parker & Ainsworth, Springfield, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
SMITH, Justice.
The appellants are owners of land abutting on the "Old Hospital Road" so-called, in the Town of Springfield. The appeal is from a judgment order of the Windsor County Court changing the order of the Old Hospital Road to a Trail.
The establishing and changing of the order of town roads is a matter which is largely controlled by statutory provisions. On June 5, 1957, the Selectmen of the Town of Springfield gave notice that they proposed to change the order of the Old Hospital Road to that of a trail and that a hearing would be held on June 26, 1957, under the provisions of 19 V.S.A. § 292. The terms of this section of the statute are quoted below:
"As the convenience of the inhabitants and the public good require, selectmen shall lay out, alter and discontinue highways. Pent roads and trails shall be deemed highways. Alteration includes a change in the order of a highway, as between open highways, pent roads and trails."
In giving notice of such proposed alteration the Selectmen acted on their own motion which was within their power. LaFarrier v. Hardy, 66 Vt. 200, 203, 28 A. 1030.
After hearing, on July 3, 1957, the Selectmen ordered that the road in question be changed from an open highway to a trail.
On Dec. 11, 1957, the appellant landowners appealed from the decision of the Selectmen to the Windsor County Court under the provisions of 19 V.S.A. § 421. Commissioners were appointed by the County Court under 19 V.S.A. § 422; hearings on the matter were held by the Commissioners in May, 1959, and findings of fact were filed with the Windsor County Court by the Commissioners.
On Feb. 13, 1961, the Windsor County Court held a hearing on appellants' motion to recommit the report of the Commissioners and denied the motion. Hearing was held on June 7, 1961 on a motion to accept or reject the findings of the Commissioners. On Aug. 7, 1961, the Windsor County Court issued its judgment order accepting the findings of fact made by the Commissioners and decreeing that the public good and convenience would be served by changing the order of the highway from an open road to a trail.
The first exceptions briefed by the appellants are directed to the admitted fact that *552 the original notice given by the Selectmen contained no notice that the Selectmen would consider claims for damages from the various landowners involved in the proceeding to alter the open road; and, second, that the damage question in the case was not considered by either the Commissioners or the County Court.
As the appellants have pointed out, 19 V.S.A. § 342 provides that when a highway is to be altered notice "shall be given to persons owning or interested in land abutting such highway, of such time and of the time when they shall consider claims for damages."
The purpose of such notice is obvious when the alteration of a highway would be to widen or enlarge the existing right-of-way. This would necessarily involve the acquiring of additional easements over the lands of property-owners who abutted the highway that was to be so altered. A hearing on damages, with prior notice of the same, would be just as essential in the event an alteration of this kind was made as it is when land rights are sought to be acquired for a laying out of a highway. Both involve the taking of land rights from property owners.
The alteration sought in this proceeding is of quite a different character. It involves a reduction of a previous taking of land, and not an enlargement. It results in an acquisition of property rights to the abutting landowners, and not a diminution of existing property rights. It confers a legal benefit to the abutting landowners, and not a loss or damage. It closely approaches a discontinuance of the highway, as provided for in 19 V.S.A. § 531, in which no hearing upon damages is needed or required.
The Town of Springfield in this proceeding is not attempting to acquire the use of lands belonging to the appellant abutting property-owners. Instead, this proceeding seeks to reduce the extent of the easement now held by the Town on the lands of the appellants from that necessary to maintain an open highway, to that needed only for a trail. An open highway must be three rods in width by virtue of the provisions of 19 V.S.A. § 294. A trail is but a foot path and requires an easement only over sufficient land to allow pedestrian travel. It follows that in this instance the use of the land no longer required for the open highway reverts to the use of the abutting property-owners who are the appellants here. Not only do the abutting landowners resume dominion over the land once used for the open highway, but not required for a trail, but upon application to the Selectmen, the trail itself may be occupied and enclosed by them.
If we sustained the petitioners on their contention that the case should be returned to the court below with instructions to recommit the matter to the Commissioners for a hearing on damages, we would be compelling the performance of a useless act. This, the law will not do. Appellants take nothing by reason of this exception.
The next exception briefed by the appellants is to the admission of evidence by the Commission on the estimated costs to the Town of Springfield if the Old Hospital Road was maintained in its then status as an open road.
The exception here is two-pronged. First, the appellants claim that evidence of cost of maintaining the road was inadmissible on the issue of necessity and convenience. Secondly, it is the contention of the appellants that two Selectmen of the Town of Springfield who testified should have been excluded as witnesses because they were in a quasi-judicial position in relationship to the matter which was then being tried.
In considering the question of the admission of evidence relative to the cost of repairing the open road, it is necessary for us to consider some of the undisputed findings of fact in the case.
*553 The Old Hospital Road, while abutted by the property of the appellants, had no places of human habitation on it. The road had not been repaired for more than twenty-five years, was badly water-washed, had fallen into disuse and had been only occasionally used in the last twenty-five years. Inhabitants in that vicinity were served by existing public highways which were in good condition and well maintained.
The testimony objected to, and which was the basis of a finding of fact by the Commission was that it would cost the Town of Springfield approximately $40,000.00 to bring the Old Hospital Road up to the minimum standard required for secondary roads, under the regulations of the Town of Springfield.
The real question presented here is as to the admissibility of evidence of costs involved in altering a highway under the consideration of "public good" in the determination of whether or not such alteration shall be decreed.
The applicable definition is found in 19 V.S.A. § 221, applicable to the proceedings before the Commissioners by virtue of 19 V.S.A. § 421. The first sentence of 19 V.S.A. § 221(1) is:
"`Necessity' shall mean a reasonable need which considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner."
We are not in this case involved in the condemnation of land for the purpose of laying out a highway. The undoubted purpose here, on the part of the Town, was to avoid the expense of maintaining a road, which was not needed, with its consequent expense to the taxpayers of that municipality. By the altering of the open highway to a trial, the Town would not be liable for the construction, maintenance or repair which would be its responsibility under 19 V.S.A. § 933. See 19 V.S.A. § 293, Maintenance of Trails.
The public good involved in altering a road requires the same consideration of expense to the condemning party, or town, as would the laying out of a new highway. Evidence as to the expense involved in altering a road may be properly considered in a hearing on the matter.
Turning now to the qualifications of the town selectmen as witnesses, we are first confronted with the fact that the hearing before the court-appointed Commission was a de novo hearing. The Selectmen were there as parties under 19 V.S.A. § 423. "The commissioners shall give notice to one or more of the selectmen and to the petitioners of the time when and place where they will make such inquiry, and hear the parties."
While it may be true that the Selectmen were sitting in a quasi-judicial position at the hearing held under 19 V.S.A. § 343 before them, at the hearing before the Commissioners, three disinterested freeholders, they were parties to the proceeding, just as were the appellants. The contention of the appellants in this regard cannot be sustained.
The appellants also excepted to the refusal of the Windsor County Court to recommit the matter to the Commissioners for further hearing in accordance with their motion. A motion to recommit is addressed to the discretion of the trial court, and its ruling upon that motion is not matter for exception. Van Dyke v. Grand Trunk Railway Company, 84 Vt. 212, 218, 78 A. 958, Ann.Cas.1913A, 640. We find no exceptional circumstances in the instant case to justify using our power to remand in order that a recommittal may be ordered.
The last exception briefed by the appellants is that the County Court erred in accepting the report of the Commissioners. This exception is briefed upon appellants' previous exceptions to the evidence upon cost received by the Commissioners. No error having been found in such admission *554 of evidence by reason of the previous exceptions, the appellants have argued, it follows that no error appears here.
Judgment affirmed.
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742 S.W.2d 655 (1987)
Barr McCLELLAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 195-86.
Court of Criminal Appeals of Texas, En Banc.
June 3, 1987.
Certiorari Denied February 22, 1988.
Barr McClellan, Houston, pro se.
Ronald Earle, Dist. Atty., and David Reynolds, Asst. Dist. Atty., Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
Certiorari Denied February 22, 1988. See 108 S. Ct. 1048.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
W.C. DAVIS, Judge.
The sole issue upon which this Court granted appellant's petition for discretionary review is one concerning speedy trial under Art. 32A.02, V.A.C.C.P. The Austin Court of Appeals upheld the trial court's denial of appellant's motion to dismiss under Art. 32A.02, holding, inter alia, that time spent in negotiations regarding a related civil lawsuit and the possibility of resolving the matters "informally" was excludable as an "exceptional circumstance" under Art. 32A.02, sec. 4(10). McClellan v. State, 701 S.W.2d 671 (Tex.App.Austin 1985). We granted review to examine this holding.
Art. 32A.02, states, in pertinent part:
Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony;
* * * * * *
Section 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded:
* * * * * *
(10) any other reasonable period of delay that is justified by exceptional circumstances.
*656 The Court of Appeals found that the State announced ready beyond the 120 days, specifically on the 121st day of the Act's time period. Therefore, the Court held that the State had to exclude time under the Act's provisions in order to comply with the time limits. The Court of Appeals found that evidence adduced at the hearing on appellant's motion to dismiss showed that some delay in indicting appellant was "attributable to the appellant" and "was caused by defendant's own conduct in trying to resolve the matters informally." The Court of Appeals held this to be an "exceptional circumstance" under Sec. 4(10).
The following exchange occurred between appellant's counsel and the prosecutor at the hearing on the motion to dismiss:
Q. [Prosecutor] Okay, do you recall having any discussions back during that time regarding wantingor your request for some time before any formal action was taken in this case in order to work out matters informally?
A. [Defense Counsel] Well, I think maybe I did say something like that.
Q. Okay, and that was prior to the time of indictment, was it not, as best you can recall?
A. Oh, yeah, yeah. We had some discussion. Mr. Gates and I discussed and Mr. Overstreetwe had some sort of three-way thing going on where we were trying to resolve the matter, but it still hadn't been resolved.
Q. How long did that proceed, the informal discussions to try to resolve it?
A. To tell you the truth, they didn't go on that long, and my recollection is I was kind of surprised that the indictment wasn't returned any sooner than it was, because the thingat some point in there, if I recall correctly, it sort of fell through, and I don't know if that was two weeks or six weeks or when that was, but I don't think the entire delay between complaint and indictment was attributable to us trying to work it out.
Q. How much of that time would you say, as a reasonable estimate?
A. Half.
Q. Several weeks?
A. As a crude estimate. I would say half of it was.
This testimony is what the Court of Appeals held showed the "exceptional circumstances" so as to exclude some time.
As has been noted repeatedly in cases addressing Speedy Trial Act contentions, the Act addresses itself to prosecutorial delay. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). The focus is on the preparedness of the prosecution for trial. Some examples of "exceptional circumstances" include delay occasioned by the hospitalization of a key State witness, Canada v. State, 660 S.W.2d 528 (Tex.Cr.App. 1983); a defendant's attempt to avoid prosecution by use of an assumed name while confined for an unrelated offense, Hamilton v. State, 621 S.W.2d 407 (Tex.Cr.App. 1981). Some examples of situations which have been held not to constitute "exceptional circumstances" are also helpful to compare. In Lloyd v. State, 665 S.W.2d 472 (Tex.Cr.App.1984) we held that the failure of the State to analyze drug evidence for a period of time was not an exceptional circumstance justifying delay; nor was the claim that the grand jury already had a full load of cases before it, so as to preclude presentation of the defendant's case, a justifiable delay. Also see Buford v. State, 657 S.W.2d 107 (Tex.Cr.App.1983). And, in Lyles v. State, 653 S.W.2d 775 (Tex.Cr.App. 1983), delay resulting from a mistake in the processing of a bail bond in a Sheriff's office was not an exceptional circumstance permitting time exclusion, since the prosecutor did not exercise due diligence to check into the matter. These cases reflect that delays within the control of the prosecutor are not "exceptional circumstances" under section 4(10) of the Act.
Likewise, in the instant case any delay in returning the indictment due to "informally" trying to resolve a civil and criminal case together, is within a prosecutor's control. The prosecutor is or should be well aware of the limitations imposed by the Speedy Trial Act and act within those limits. The prosecutor obviously may use discretion in deciding whether a case might *657 be disposed of in a manner precluding indictment or trial. However, that discretion in whether or when to indict a person must be exercised within the parameters of the Speedy Trial Act. Similar to Lloyd, supra, Buford, supra, and Lyles, supra, the instant case presents a situation which the prosecutor controlled and could have avoided. Such delay due to a related civil matter is not an "exceptional circumstance" as envisioned by section 4(10). The Court of Appeals was in error in excluding any time due to such delay.
However, we must note that, as the State pointed out to the Court of Appeals and again in their brief before this Court, the issue of excludable time need never have been reached. Upon review of the record we find that the Court of Appeals erred in finding that the State's announcement of "ready" came after the 120 day limit of Art. 32A.02, sec. 1(1) and that the State thus had the burden to exclude sufficient periods of time to comply with the limits of the Act.
Art. 32A.02, states, in pertinent part:
Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony;
* * * * * *
Section 2. (a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when an indictment, information, or complaint against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.
The rules regarding compliance with the Speedy Trial Act have been well-summarized in many cases. Once the defendant files his motion to dismiss for failure to follow the provisions of the Speedy Trial Act, the state must declare its readiness for trial then and at the times required by the Act. This declaration is a prima facie showing of conformity to the Act. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App. 1979). The defendant then has the burden to rebut this declaration, if possible, and show that the State was not ready during the necessary time. Barfield, supra. If the State announces ready at a time not within the applicable limits and does not say that it was ready within the statutory time limit, then the burden is on the State to prove that certain times are excludable under Section 4 of the Act, so as to bring the State within the time limit. Ex Parte Hilliard, 687 S.W.2d 316 (Tex.Cr.App. 1985); Teamer v. State, 685 S.W.2d 315 (Tex.Cr.App.1984); Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980).
The original complaint in the case was filed on April 15, 1981, and the arrest warrant was issued April 16, 1981. The magistrate's warning was administered to appellant on April 16, 1981, at 9:30 a.m. The personal bond form is dated "4/15/81" on the top part where pertinent personal information is written. However, the personal bond form itself is signed by appellant and the magistrate, but the date has been left blank. From this information we surmise that appellant was arrested on April 16, which is the date the criminal action commenced for purposes of the Speedy Trial Act. Art. 32A.02, sec. 2(a). Cf. Rios v. State, 718 S.W.2d 730 (Tex.Cr.App.1986). The indictment was filed August 11, 1981, and the State filed a written announcement of ready on August 14, 1981. However, at the hearing on appellant's motion to dismiss the prosecutor testified that the case "had been ready since the case was returned into court, when this indictment was returned." Further, she stated that the case was ready for trial at all times when the case was called and that the State was ready for trial even prior to the date of indictment except for the fact of the indictment being returned. This testimony shows that the State was ready on August 11, 1981, the date the indictment was actually filed, and that the State had been ready at all times since then.
*658 In the instant case, at the hearing on the motion to dismiss, the State declared its readiness at that time and at all times at least since the filing of the indictment, August 11, 1981. Although the State also filed a written announcement of readiness on August 14, 1981, the testimony at the hearing makes clear that the State was ready prior to the written announcement. The commencement of the criminal action in the instant case was April 16, 1981, the date appellant was arrested. From April 16 to August 11 is 117 days, within the 120 day limit of the Act. Even the State's written announcement of ready, filed on August 14, falls on the 120th day. Because the State's announcement of readiness on August 11, fell within the Act's limit, the State did not have the burden to exclude any time. The Court of Appeals erred in deciding that the State had to exclude time and did so by showing time spent in a related civil lawsuit matter. The exclusion issue was not raised or necessary to their determination. Rather, appellant had the burden to rebut the State's showing of readiness. Ex Parte Hilliard, supra.
Since the Court of Appeals also found that appellant did not rebut the State's announcement of ready we need not remand this case in light of the erroneous facts. Therefore, the judgment of the Court of Appeals is affirmed.
ONION, Presiding Judge, concurring in part and dissenting in part on appellants petition for discretionary review.
The majority finds from an examination of the record that appellant was arrested on April 16, 1981, and on that date the "criminal action" commenced for purposes of Article 32A.02, § 2(a), the Speedy Trial Act. It further found that the State filed a written announcement of ready on August 14, 1981, after the indictment was returned on August 11, 1981. The majority concluded that the written announcement of ready was within the 120 days for the State to be ready for the trial of a felony under Article 32A.02, § 1(1), V.A.C.C.P. In fact, August 14 was the 120th day from April 16, 1981.
The majority further observed that at the hearing on the motion to dismiss the indictment the State declared its readiness then and at all times since the filing of the indictment on August 11, 1981. This declaration was supported by testimony at the hearing by the prosecutor. The majority concluded this oral testimony showed that the State had been ready prior to the written announcement and that the 117 days between April 16 and August 11, 1986 were within the 120 limit of the Speedy Trial Act.
This is at odds with the conclusion reached by the Court of Appeals that the arrest occurred on April 15, 1981 and that written announcement of ready was not made until August 14, 1981, 121 days after the "criminal action" had commenced. The Court of Appeals determined that the delay in the return of the indictment for at least one week was attributable to the appellant and caused by his conduct in trying to resolve the matters informally. Finding that this was an exceptional circumstance under Article 32A.02, § 4(10), supra, the court found the State's announcement of ready was timely excluding the time of "at least one week."
The majority, in concluding, stated:
"Because the State's announcement of readiness on August 11, fell within the Act's limit, the State did not have the burden to exclude any time. The Court of Appeals erred in deciding that the State had to exclude time and did so by showing time spent in a related civil lawsuit matter. The exclusion issue was not raised or necessary to their determination. Rather, appellant had the burden to rebut the State's showing of readiness. Ex parte Hilliard, supra [687 S.W.2d 316 (Tex.Cr.App.1985)]." (Emphasis supplied.)
I agree that under the circumstances the State did not have the burden to exclude any time and that the exclusive issue was not raised. Therefore, I dissent to the totally unnecessary discussion of and conclusion that the appellant's conduct in attempting to resolve the matter informally, *659 etc., was not an "exceptional circumstance." If the exclusion issue was not raised and unnecessary to the determination of the Court of Appeals, why, just why does this Court reach that issue? It may well be that, having accepted the erroneous computation of time by the Court of Appeals, we granted the petition for discretionary review to determine whether the "exceptional circumstance" was a valid one. That, however, is absolutely no reason for an unnecessary discussion of an issue which we now say was never raised even in the Court of Appeals. I dissent to that portion of the opinion.
McCORMICK and WHITE, JJ., join this opinion.
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39 N.J. 490 (1963)
189 A.2d 204
ANTHONY RUVOLO, A MENTAL INCOMPETENT, WHO SUES BY ROSE RUVOLO, HIS GUARDIAN, PLAINTIFF-RESPONDENT,
v.
AMERICAN CASUALTY COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued February 4, 1963.
Decided March 18, 1963.
*493 Mr. John F. Ryan argued the cause for defendant-appellant (Mr. Bernard L. Davis, on the brief; Messrs. Ryan, Saros, Davis & Stone, attorneys).
Mr. Melvin J. Koestler argued the cause for plaintiff-respondent (Messrs. Koestler & Koestler, attorneys).
The opinion of the court was delivered by FRANCIS, J.
In this action plaintiff, guardian of the insured, sought a declaration with respect to the coverage extended by a policy of liability insurance issued by defendant American Casualty Company. The trial court entered summary judgment for plaintiff requiring defendant to undertake the defense of a certain damage suit then pending against the insured, and declaring that the policy provided coverage for the liability on which that suit was based. The defendant appealed to the Appellate Division and we certified the matter before argument there.
Dr. Anthony Ruvolo purchased an insurance policy from defendant under which the company agreed to pay all sums which he "shall become legally obligated to pay as damages" because of the death of any person resulting from [his] "activities." The contract also obligated the insurer to defend any damage suit brought against Ruvolo alleging such a death "even if such suit is groundless, false or fraudulent." The coverage extended was limited as follows:
"* * * This policy does not apply:
* * * * * * * *
(c) to * * * death * * * caused intentionally by or at the direction of the insured."
On June 6, 1960 Dr. Anthony Ruvolo shot and killed Dr. Annunziato La Face with whom he was associated in the practice of medicine. Ruvolo was arrested immediately and at the instance of the Prosecutor, was examined by two psychiatrists. Upon their certification that he was insane, he was committed on June 10, 1960 to the New Jersey State Hospital at Trenton. He is still confined there.
*494 In July 1960 Evelyn La Face, as Administratrix ad Prosequendum and as general Administratrix of the estate of her husband, brought suit for damages against Ruvolo alleging that he "wrongfully shot and killed" La Face. The insurer refused to defend the action asserting that the claim was excluded from policy coverage because the death had been caused by the insured's intentional act. We were advised at the oral argument that after this appeal had been taken, the damage suit was settled between the parties, and that it was done pursuant to an agreement with the insurer that the adjustment would be without prejudice to a judicial determination of the question of policy coverage.
When the declaratory judgment proceeding was instituted, defendant filed an answer alleging that Ruvolo's homicidal act was intentional and therefore was not within the protection afforded by the insurance. Plaintiff moved for summary judgment, supporting the application by affidavits of the two psychiatrists on whose certification Ruvolo had been committed, and by affidavits of two other psychiatrists who have examined and cared for him since his admission to the State Hospital.
The first two physicians, who examined Ruvolo on June 6 and 7, 1960, declared him to be "insane," suffering from "Dementia Praecox (Schizophrenia), paranoid type," and that the condition was gradual in onset, ("his paranoid ideas [had been] very strong for several months past"). The affidavits of the two attending physicians were made after 19 months of examination, observation and treatment. They agree that upon admission to the hospital on June 10, 1960, Ruvolo was suffering from paranoid delusions; also, that at and prior to June 10 and continuously thereafter, he was afflicted with a mental disorder classified as "paranoid state." More particularly, one of them deposed that at the time of the killing on June 6, 1960, Ruvolo
"was suffering from a mental disorder which rendered him incapable of distinguishing right from wrong, that his insight and judgment were defective, that he was possessed with delusions of persecution, and *495 that he did not at that time know the nature or quality of his acts and lacked the mental capacity to control his conduct."
The second one said:
"In my opinion, based upon my early examination [day of admission] of Anthony Ruvolo and confirmed by my frequent contact with and knowledge of the case during the past year and a half, Anthony Ruvolo was psychotic at the time of the alleged homicide on June 6, 1960 and was at that time suffering from a mental disorder which rendered him incapable of distinguishing right from wrong, and that he did not at that time know the nature or quality of his acts and he lacked the mental capacity to control his conduct."
Defendant submitted no answering affidavits or other proof in opposition to that presented by plaintiff. Counsel pointed out, however, that none of the psychiatrists had examined or treated Ruvolo or had actual knowledge of his mental state before the shooting; further that their statements as to his insanity on the day of the homicide were opinions based on subsequent examinations and treatment. And he argued that the motion for summary judgment should have been made on depositions of the doctors, which would have provided him with an opportunity for cross-examination as to the nature and extent of the insanity and whether it was such as deprived Ruvolo of sufficient rational reasoning capacity to conceive and intentionally execute a purpose to shoot Dr. La Face. It is also fairly inferable from the argument that he felt entitled under the circumstances of the case to employ cross-examination to probe into the credibility of the affiants, the basis for their opinion, as well as its medical soundness and legal effect with relation to the exclusionary clause of the insurance contract. Defendant urged that plenary trial was warranted because depositions had not been taken (although it is not suggested that such course is imperative on a motion for summary judgment), and because the subjects sought to be explored were not covered in the affidavits to the point where it could be said that "palpably" there was no genuine factual issue (R.R. 4:58-3). The trial court granted summary judgment for plaintiff holding that the affidavits demonstrated *496 beyond factual conflict that Dr. Ruvolo was insane at the time of the shooting and lacked the capacity to form a rational intent to kill. A killing in such circumstances, he declared, could not be considered an intentional act and therefore was within the protection extended by defendant's policy.
Clauses excluding coverage for losses caused by intentional wrongful acts are common in various types of insurance contracts and are accepted as valid limitations. In fact, it has been held to be contrary to public policy for an insurer to agree to indemnify an insured against the civil consequences of his own willful criminal act. Malanga v. Manufacturers Cas. Ins. Co., 28 N.J. 220, 225 (1958); Morgan v. Greater New York Taxpayers Mut. Ins. Assn., 305 N.Y. 243, 112 N.E.2d 273, 275 (Ct. App. 1953); 10 Couch, Insurance (2d ed. 1962), §§ 41.663-665; 1 Appleman, Insurance Law and Practice (1941), § 481; 29A Am. Jur., Insurance, § 1194. In applying the exclusory provision, however, whether in a life, accident, liability or fire policy, it has come to be commonly accepted that where the death or loss involved, be it of the insured or caused by the insured, is the product of an insane act, recovery is not barred. See, e.g., Hier v. Farmers Mut. Fire Ins. Co., 104 Mont. 471, 67 P.2d 831, 110 A.L.R. 1051 (Sup. Ct. 1937); Provident Life & Accident Ins. Co. v. McWilliams, 146 Miss. 298, 112 So. 483 (Sup. Ct. 1927); Markland v. Clover Leaf Casualty Co., 209 S.W. 602 (Mo. Ct. App. 1919); Corley v. Travelers' Protective Assn., 105 F. 854 (6 Cir. 1900); Berger v. Pacific Mut. Life Ins. Co., 88 F. 241 (C.C. Mo. 1898); Van Zandt v. Mutual Benefit Life Insurance Co., 55 N.Y. 169; 14 Am. Rep. 215 (Ct. App. 1873); Annotation, 110 A.L.R. 1060 (1937); 1 Appleman, supra, p. 590, n. 7; Couch, supra, § 41.667; 29A Am. Jur., supra, §§ 1199, 1304.
In this context, however, the critical, or more precise, problem is the nature or extent of the mental incapacity necessary to transmute the character of the act involved from intentional to insane. Broadly stated, if the actor does not have the mental capacity to do the act intentionally, the policy *497 coverage remains operative. The test has been expressed in this wise: If the deceased was killed by one incapable of distinguishing between right and wrong, or of forming a rational intent to do the act, the death would not be intentional, Corley v. Travelers' Protective Ass'n, supra, (105 F., at p. 862); if the death was caused by the voluntary act of the insured, when his reasoning faculties were so far impaired that he was not able to understand the moral character, or the general nature, consequences and effect of the act he was about to commit, the killing was not "intentional," Berger v. Pacific Mut. Life Ins. Co., supra; or, if the person was suffering from such an impairment of the mind as to render him incapable of acting rationally, his homicidal act cannot be considered intentional, Provident Life & Accident Ins. Co. v. McWilliams, supra. The rule has been put in the terms applied in determining guilt or innocence in the criminal law, i.e., whether at the time the life was taken the killer was so unbalanced as not to be able to distinguish between right and wrong in reference to the act. Markland v. Clover Leaf Casualty Co., supra; 1 Appleman, supra, §§ 482, 483.
Ninety years ago, the United States Supreme Court, after reviewing a number of authorities which stated the test in various ways, adopted this principle in a life insurance case which excluded coverage if the insured "shall die by his own hand":
"If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable." Mutual Life Ins. Co. v. Terry, 15 Wall. 580, 21 L.Ed. 236, 242 (1873).
And, see Connecticut Mutual Life Ins. Co. v. Akens, 150 U.S. 468, 37 L.Ed. 1148 (1893); Charter Oak Life Ins. Co. v. Rodel, 95 U.S. 232, 24 L.Ed. 433 (1877).
*498 Although somewhat more restricted judicial utterances are to be found, e.g., Van Zandt v. Mutual Benefit Life Insurance Co., supra, the cases referred to above generally reflect what in our judgment should be the criteria for determining the applicability of the exclusionary clause in question. And although a liability policy of the type involved in this action was not the subject of the litigation in the cases cited, we conceive no sound basis for differentiation with respect to the test to be employed in deciding the issue of coverage.
We have no doubt that if a homicidal act of an insured is of such character as to excuse him from criminal responsibility because of insanity, i.e., because at the time of its commission he did not have the mental capacity to understand the nature and quality of his act, or to be able to distinguish between right and wrong with respect to it, the killing should not be considered "intentional" within the meaning of the defendant's policy.
It has been said many times that exclusionary clauses, drawn for the company by men learned in the law of insurance are to be strictly construed against the insurer; that the insured is entitled to protection to the full extent that any reasonable interpretation of them will permit. Mazzilli v. Accident & Casualty Insurance Company of Winterthur, 35 N.J. 1, 7 (1961). And justice demands that particular emphasis be laid on that doctrine where the conduct insured against involves possible injury or damage to members of the public. For that reason, while such mental incapacity as would excuse an act from criminal responsibility would preserve the insured's protection under this policy, in our opinion coverage should not be limited to cases which satisfy that definition. We hold that if the insured was suffering from a derangement of his intellect which deprived him of the capacity to govern his conduct in accordance with reason, and while in that condition acting on an irrational impulse he shot and killed Dr. La Face, his act cannot be treated as "intentional" within the connotation of defendant's insurance contract.
*499 These observations bring us back to the problem of the propriety of the summary judgment against defendant. It is a matter of common knowledge that such judgments are to be granted with extreme caution. The moving papers and the pleadings are to be considered most favorably to the party opposing the motion. All doubts are to be resolved against the movant. It has been said on the federal scene (after whose rule our own is patterned) that a litigant has the right to trial where there is the slightest doubt as to the facts. Peckham v. Ronrico Corp., 171 F.2d 653, 657 (1 Cir. 1948); Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135 (2 Cir. 1945). If there is such a doubt it cannot be said the movant's case is unequivocally established or that palpably there is no genuine issue as to any material fact challenged. R.R. 4:58-3.
When this declaratory judgment action was instituted, defendant filed an answer asserting that the insured's shooting of Dr. La Face was an intentional act and therefore not covered under the insurance policy. The issue thus raised had in its support a presumption of Dr. Ruvolo's sanity at the time of the killing; and the undisputed facts that he obtained a shotgun and fired it at his associate on their face lend some additional probative force to the presumption. The affidavits produced in support of the motion provided only opinion evidence in support of the claim of insanity. The affiants never examined Ruvolo before the shooting and knew nothing about his condition or symptoms, if any, prior thereto. No affidavits from his wife or friends or professional associates at the hospital where he practiced were presented to show any abnormal behavior or symptoms, or medical treatment before the unfortunate incident. The history as to his previous condition appearing in the affidavits of the psychiatrists was obtained from Ruvolo himself after the event. In view of the homicide charge and the civil liability, no one could have a stronger motive for self-serving statements. And their very lucidity as noted in one of the certificates of insanity cannot escape attention on such a motion. The following *500 appears in the certificate of Dr. Robie whose first examination was about seven hours after the event:
"He states that persons he worked with at the hospital had remarked that he appeared mentally depressed and in need of treatment on several occasions during recent months * * *."
Despite the obvious availability of proof of Ruvolo's condition prior to June 6, 1960, none was offered. Plaintiff was content to rest on self-serving history and the post-event opinions of medical witnesses based thereon. Credibility of the history as well as of the doctors who predicated their opinions on it, was obviously at issue. We were told on oral argument that the insurer had procured no medical examinations of Ruvolo. While this failure leaves the defense in a more vulnerable position than it might have occupied if such examinations had been obtained, the right to trial is not lost unless the record is not open to any reasonable factual doubt as to the legal sufficiency of plaintiff's case. We agree with the Federal District Court of Delaware that where a case may rest upon opinion or expert testimony, a court should be particularly slow in granting summary judgment. Anthony P. Miller, Inc. v. Wilmington Housing Authority, 179 F. Supp. 199, 205 (D. Del. 1959); see, Mayflower Industries v. Thor Corp., 15 N.J. Super. 139, 156 (Ch. Div. 1951), affirmed 9 N.J. 605 (1952). The same hesitancy should exist where the court is necessarily required to resolve questions of intent and mental capacity. Ordinarily in such situations justice is best served by plenary trial on the merits. And the need for caution is especially urgent where a party must rely for his case largely on what he can draw out of his adversary's witnesses. Bozant v. Bank of New York, 156 F.2d 787 (2 Cir. 1946); Arnstein v. Porter, 154 F.2d 464 (2 Cir. 1946). Of course, defendant could have asked for leave to take the depositions of plaintiff's medical witnesses prior to argument of the motion, but such course in a case like this is not a compulsory substitute for the examination of those witnesses at trial in open court. Arnstein v. Porter, supra, p. 470, fn. 11.
*501 We do not suggest that this type of litigation is immune from summary judgment. But the right to such disposition ought to appear so clearly as to leave no room for controversy. The fact that one may surmise reasonably that defendant is unlikely to prevail on a trial is not a sufficient basis to deny the company its day in court, when, as here, plaintiff's right to succeed depends on issues of credibility and the probative value of opinions of expert witnesses as well as the reliability of the underlying facts upon which the opinions are based. Ordinarily in such a factual framework it is undesirable to withdraw the witnesses from cross-examination.
On the record before us we sense some lack of the details necessary for a confident application of the controlling legal principles enumerated above as the criteria for determining the issue of policy coverage. Accordingly, we consider it the part of good judicial administration to withhold decision on the ultimate question in the case until by means of examination and cross-examination of witnesses, a trial record shall present a more solid basis for findings as to Dr. Ruvolo's mental capacity. Cf. R.R. 4:58-7.
Reversed and remanded for trial. No costs.
For reversal and remandment Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7.
For affirmance None.
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425 F. Supp. 614 (1977)
RAYMOND-DRAVO-LANGENFELDER, a joint venture, Plaintiff,
v.
MICRODOT, INC. and Maryland Liquidating Company, Defendants and Third-Party Plaintiffs,
v.
MARYLAND SHIPBUILDING & DRYDOCK COMPANY, Third-Party Defendant.
Civ. A. No. 74-254.
United States District Court, D. Delaware.
December 30, 1976.
Memorandum Opinion on Reargument February 23, 1977.
*615 *616 Victor F. Battaglia, of Biggs & Battaglia, Gerald C. Foulk, of Miller & Foulk, Wilmington, Del., Vandeventer, Black, Meredith & Martin, Norfolk, Va., for plaintiff.
Richard L. Sutton, William C. Anderson, III, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendants and third-party plaintiffs.
R. Franklin Balotti, of Richards, Layton & Finger, Wilmington, Del., Semmes, Bowen & Semmes, Baltimore, Md., for third-party defendant.
OPINION
STAPLETON, District Judge:
This is a breach of contract action in which jurisdiction is based on diversity. The Court is asked to determine here whether the principal action and/or the third party action is barred by the statute of limitations.
Raymond-Dravo-Langenfelder (hereinafter "RDL"), the plaintiff, is a joint venture composed of a New Jersey, a Pennsylvania, and a Maryland corporation. The complaint alleges that RDL was the prime contractor for the construction of a bridge across the Chesapeake Bay in Maryland and that RDL contracted to purchase a number of steel pier forms for the bridge from Maryland Liquidating Company (formerly known as Wiley Manufacturing Company and hereinafter referred to as "MLC"), a Delaware corporation. By a letter dated December 18, 1969, Microdot, also a Delaware corporation and the parent corporation of MLC, guaranteed the performance of MLC. MLC then entered into a sub-contract with third-party defendant Maryland Shipbuilding, a Maryland corporation at the time and now a Michigan corporation, pursuant to which Maryland Shipbuilding fabricated steel pier form ¶ 46 and delivered it to the construction site on November 17, 1970. On November 19th, the pier form was set in position and the next day employees of RDL began pouring concrete into it. Before that process was completed, on or about December 7, 1970, the pier form collapsed into the bay. This event, plaintiff alleges, was the result of faulty workmanship and constituted a breach of MLC's warranty to RDL. Plaintiff seeks to recover the damages he incurred as a result of the collapse. Microdot and MLC argue that any defect in the pier was caused by Maryland Shipbuilding and they seek recovery from the fabrication for any damages assessed against Microdot or MLC.
The procedural history of the case has bearing on some of the issues presented by the motion of the defendants for judgment on the pleadings that is now before me. Therefore, I will review briefly the course the case has taken thus far. After an abortive attempt to bring this suit in the United States District Court for the Eastern District of Virginia in mid-1973, the plaintiff filed an action in the District of Delaware against Microdot and MLC on November 22, 1974. On December 19, 1974, the defendant filed a third-party complaint against Maryland Shipbuilding. Plaintiff then filed a second action in the District of Connecticut on February 21, 1975, naming only Microdot as defendant. Except for the absence of MLC's name from the complaint in Connecticut, the complaints in the two actions are identical. Pursuant to 28 U.S.C. § 1404(a), Microdot moved for and was granted a transfer of the Connecticut case to the District of Delaware. The two actions have since been consolidated.
I have concluded that the statute of limitations applicable to MLC expired before the Delaware suit was filed and that, therefore, MLC is entitled to be dismissed. The Connecticut statute applicable to Microdot in the transferred suit has not run and, therefore, Microdot remains in the suit. *617 Microdot may not pursue its third-party action against Maryland Shipbuilding, however, because any possibly applicable limitations period on such an action has past. Because different considerations have led me to these conclusions with respect to each defendant and the third-party defendant, I will discuss the situation of each party separately.
I. MLC
MLC entered into the contract with plaintiff which underlies this suit. Pursuant to the contract, MLC agreed to sell to RDL pier forms meeting certain detailed specifications which were to be used in the construction of the bridge. There appears to be no dispute that this was a contract for the sale of goods and that it is covered by the limitations provision in § 2-725 of the Uniform Commercial Code (hereinafter UCC or the Code) which has been enacted in all of the arguably relevant jurisdictions. Accordingly, there is no choice of law difficulty with respect to the claim against MLC. The only issue is when the cause of action against MLC accrued.
Section 2-725 of the UCC reads in pertinent part:
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
Defendant MLC argues that the four-year time bar applies and that if there was any breach, it occurred on November 17, 1970, when MLC delivered the pier forms to RDL through its sub-contractor Maryland Shipbuilding. According to this theory, the suit filed on November 22, 1974 was not timely and must be dismissed.
RDL counters with two arguments. First, it contends that plaintiff accepted the pier forms for towing only and that it reserved the right to conduct later inspections and to reject the goods if they did not conform to the specifications of the contract. While this may be so, it is irrelevant to the statute of limitations question. The Code clearly states that a cause of action for breach of warranty accrues when tender of delivery is made. Whether or not the buyer at that time "accepts" the goods, as that term is used in the Code,[1] or, on the other hand, withholds acceptance until he or she has had an opportunity to fully inspect for defects, does not affect when the buyer must institute suit for breach of warranty. This is so even if the defect does not appear until after the limitations period has run.[2] Once the seller tenders the goods, the limitations period begins to run unless the contract is covered by the exception in Section 2-725(2), a question I will now turn to.
RDL more earnestly argues this second point, that the contract in this case falls within the exception to the tender of delivery rule in Section 2-725 for warranties "which explicitly exten[d] to future performance of the goods. . . ." I am not persuaded that the warranty in this case is of that nature.
RDL's contract with MLC expressly incorporated by reference a manual entitled "Special Provisions and Proposal Form for Substructures" issued by the State Roads Commission of Maryland. That manual sets standards for construction materials to be used on Maryland highways and bridges. It includes detailed standards for pier forms such as the one involved in this lawsuit specifying in pertinent part:
The permanent pier forms shall be sufficiently watertight to prevent the loss of grout, and shall be thoroughly braced to *618 withstand all stresses and pressures produced by handling and pouring concrete continuously between the limits of construction joints shown on the Plans. The upper section of these forms shall be sufficiently watertight to permit the proper placement of concrete above Elevation -8.0 (Elevation -9.0 for Piers 43 through 48) in the dry and shall be connected by a watertight joint to the steel production plates. The top of the diaphragm of the permanent pier form shall be open.[3]
Plaintiff contends that these specifications to which MLC agreed as part of its contractual undertaking constituted a warranty "explicitly extend[ing] to future performance." UCC § 2-725. The future performance to which the warranty extended, RDL argues, is the performance of the pier forms after the concrete had been poured as described in the contract specifications. Until then, RDL says, it had no way of knowing whether the pier forms were as warranted.
The difficulty of determining conformity with a warranty at the time of delivery is a problem common to many situations involving warranties by description. Such difficulties have not been regarded as controlling, however, in the absence of contract language explicitly warranting future performance. The drafters of the UCC decided that the seller's need to have some clearly defined limit on the period of its potential liability outweighed the buyer's interest in an extended warranty and reserved the benefits of an extended warranty to those who explicitly bargain for them.
The courts have interpreted Section 2-725 narrowly. In Binkley Co. v. Teledyne Mid-America Corp., 333 F. Supp. 1183 (E.D. Mo.1971), aff'd, 460 F.2d 276 (8th Cir. 1972), for example, the court held that a warranty specifying that equipment could weld at a rate of 1,000 feet per fifty minute hour was not one that extended to future performance. The fact that the plaintiff was not able to test the welder's capabilities until it was installed and put into operation did not halt the running of the statute of limitations. The court commented:
There is no reference to a future time in this language, and thus these words do not constitute an "explicit" warranty of future performance in and of themselves. Plaintiff claims that it was not able to test the welder's capabilities until some time after it obtained delivery and maintains that warranties made without explicit reference to time, the truthfulness of which cannot be ascertained at delivery, should be considered warranties of future performance within § 2-725(2). In this court's opinion, such construction of § 2-725(2) would make the point at which the statute begins to run depend upon the buyer's knowledge of the defect. This would directly conflict with § 2-725(2), which provides that a cause of action accrues when breach of warranty occurs "regardless of the aggrieved party's lack of knowledge of the breach."
333 F.Supp., at 1187. See also Matlack, Inc. v. Butler Manufacturing Co., 253 F. Supp. 972 (E.D.Pa.1966).
RDL bases its whole argument that the warranty in question extended to future performance on its inability to discover any breach until the pier form was actually put into service. It points to no language in the contract, however, that explicitly warrants any future performance. Accordingly, I conclude that the limitations period began to run on November 17, 1970, when MLC tendered delivery. Therefore the action against MLC is time barred.
II. MICRODOT
RDL's claim against Microdot is based upon Microdot's guaranty of MLC's performance, rather than on breach of warranty. The choice of laws question is the first thing that must be addressed.
RDL named Microdot as a defendant in the Delaware action, but, it will be recalled, RDL also filed suit against Microdot in Connecticut where Microdot has its principal place of business. The transfer *619 here to Delaware, upon Microdot's motion, occurred later. A transfer pursuant to 28 U.S.C. § 1404(a), when it is granted upon the motion of the defendant, does not effect a change in the law to be applied. Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964); Headrick v. Atchison, Topeka & Santa Fe Ry., 182 F.2d 305 (10th Cir. 1950). This is so even when the suit was brought originally in a jurisdiction because of a favorable statute of limitations. Headrick, supra, at 309. Raising the specter of "forum shopping", Microdot argues that Headrick should not be applied here. But I know of no policy against forum shopping for purposes of avoiding a short limitations period. In Van Dusen v. Barrack, supra, the Supreme Court quotes with approval a passage from Headrick that acknowledges a plaintiff's right to forum shop for this purpose.[4] RDL is thus entitled to have this Court apply the same law that the federal court and, under the doctrine of Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941), the state courts of Connecticut would have applied.
In a conflict of laws situation, Connecticut applies its own statute of limitations except when the liability sought to be enforced is created by a statute of a foreign jurisdiction and the cause of action is inseparable from the remedy. Thomas Iron Co. v. Ensign-Bickford Co., 131 Conn. 665, 42 A.2d 145, 146 (1945). This case does not fall within the exception and, unlike some other jurisdictions, Connecticut does not have a "borrowing statute" that would direct its courts to bar an action that would be barred by the statute of limitations in the state whose substantive law governs. Thus, the Connecticut limitations period for actions on a guaranty, which is six years,[5] controls in this case.
Applying the six-year limitation, this action would not be barred. Microdot argues, however, that because the action against MLC, the principal, is barred, the action against the guarantor must likewise fail. In support of this, Bernd v. Lynes, 71 Conn. 733, 43 A. 189 (1899), is cited. Bernd appears to have been overruled, however. In City of Bridgeport v. U. S. Fidelity & Guaranty Co., 105 Conn. 11, 134 A. 252 (1926), the Connecticut Supreme Court of Errors held that it would not extend Bernd to the situation where the statute of limitations applicable to the guarantor exceeds that applicable to the principal.[6] The court said:
Where the principal and surety, as in the instant case, are subject to different statutory periods of limitation, the broad doctrine of [Bernd] is not applicable. If so, we should have a situation where the statutory period of limitations of 17 years upon a contract under seal was by rule of law held inapplicable in a case where the period of limitation for the principal had run. A ruling so conflicting with a valid statutory provision could not stand; it would be beyond the power of the court to make.
134 A., at 259. I can find no authority to indicate that City of Bridgeport is no longer the law of Connecticut, nor do I see any grounds upon which to distinguish it from the present case. Thus, the six year limitation applies to Microdot and the action against it will go forward.
III. MARYLAND SHIPBUILDING
In its third party action, Microdot seeks to hold Maryland Shipbuilding liable *620 for any damages RDL may recover from Microdot. In response, Maryland Shipbuilding first contends, and I agree, that the Microdot third party complaint presents a breach of warranty theory for recovery and, on that theory, Microdot is barred whether I apply the three year statute of limitations applicable to contracts for services,[7] or the four year statute for actions involving the sale of goods. UCC § 2-725. The warranty action accrued on November 17, 1970, when Maryland Shipbuilding tendered the goods and the third party action was commenced on December 19, 1974.
Microdot argues, however, that it is entitled to collect from Maryland Shipbuilding on a common law indemnity theory if it can show that Maryland Shipbuilding was negligent in fabricating the pier form.[8] Under the liberal pleading rules of the Federal Rules of Civil Procedure, it would be improper to dismiss the third party complaint if it could be amended to avoid the statute of limitations problem posed by the breach of warranty cause of action. L. E. Talcott & Sons, Inc. v. Aurora Corp., 176 F. Supp. 783 (D.Del.1959). Accordingly, I have considered whether Microdot can go forward against Maryland Shipbuilding on an indemnity theory. I conclude that it cannot.
The general rule for indemnity is stated as follows:
A person, who in whole or in part, has discharged a duty which is owed by him but as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct. [Emphasis supplied].
Restatement of Restitution § 76 (1937). If Microdot is held liable here, it will be on the basis of its contract of guaranty, that is, its agreement to hold RDL harmless from any damages resulting from RDL's contract with MLC. Maryland Shipbuilding owed no duty to RDL under this "hold harmless" contract. In fact, it was a total stranger to the RDL-Microdot contract: Maryland Shipbuilding in no way participated in it or consented to it. The only duties Maryland Shipbuilding had in this transaction arose from its contract with MLC, a contract on which the statute of limitations has run. Microdot, by unilaterally guaranteeing MLC's performance could not extend Maryland Shipbuilding's exposure under that contract.
If Microdot were to have some cause of action against Maryland Shipbuilding, it would be in its role as the guarantor of MLC's performance. Upon fulfilling its guarantee, Microdot will be subrogated to the rights of RDL. But it will obtain no greater rights. See, e. g., Insurance Company of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971). When the statute of limitations runs out against the insured, as is the case with respect to any suit RDL might have elected to bring against Maryland Shipbuilding in this matter, it runs out against the subrogee. Id., 284 A.2d, at 729-730. Thus, there appears to be no theory under which Microdot would be entitled to recover from Maryland Shipbuilding. Accordingly, Maryland Shipbuilding's motion to dismiss will be granted.
MEMORANDUM OPINION ON REARGUMENT
Following this Court's Opinion and Order of December 30, 1976,[*] defendants and third-party plaintiffs Microdot, Inc. ("Microdot") *621 and Maryland Liquidating Company ("MLC") filed a timely motion for reargument which was granted in part and denied in part. In that portion upon which reargument was granted and the parties heard, Microdot asked leave of Court to file a third-party complaint against MLC, who in turn has represented that it will file a fourth-party complaint against Maryland Shipbuilding & Drydock Company ("Maryland Ship"). The legal theory behind this request is that if RDL secures a judgment against Microdot on its guaranty of MLC's performance, Microdot will have a right of indemnity against MLC, its principal. [Citing United States Fidelity & Guaranty Co. v. Gray's Admr's., 6 Boyce 161, 29 Del. 161, 97 A. 425 (1916)]. In turn, if MLC is held liable to indemnify Microdot and can establish that its liability was occasioned by the negligence of Maryland Ship, Maryland Ship would be required to indemnify MLC. [Citing Arizona York Refrigeration Co. v. Bush Mfg. Co., 331 F.2d 1 (9th Cir. 1964)].
Maryland Ship does not object to the granting of the Microdot-MLC request, although it reserves the right to hereafter challenge the legal theory which underlies it. I agree with the parties that the validity of this theory is not currently before the Court. It is sufficient for present purposes to conclude that it is a tenable theory which was not ruled upon in this Court's Opinion of December 30, 1976. Accordingly, Microdot's request for leave to file a third-party complaint against MLC will be granted. MLC may file its complaint against Maryland Ship within the period specified in Rule 14.
NOTES
[1] See, e. g., UCC §§ 2-601, 2-606, 2-607.
[2] White and Summers, Uniform Commercial Code § 11-8, p. 341.
[3] Plaintiff's Revised and Amended Answers to Defendants' Interrogatories No. 8.
[4] "[The plaintiff] had a legal right to select any forum where the defendant was amenable to process and no contention is made here that the case was not properly brought in . . . New Mexico . . ..
". . . [I]f § 1404(a) is applicable and a transfer to the California court is ordered for the convenience of the parties, the witnesses and in the interests of justice, there is no logical reason why it should not remain a New Mexico case still controlled by the law and policy of that state." Id., at 309-310.
376 U.S., at 632, 84 S.Ct. at 817.
[5] Conn.Gen'l.Stats. § 52-579.
[6] I can imagine no other circumstances in which the question would arise and, therefore, it would appear that Bernd no longer has any viability.
[7] The third party defendant argues that its contract with MLC was for fabrication only and did not involve the sale of goods. If that is the case, pursuant to 10 Del.C. §§ 8106 and 8121 (1974), three years would be the maximum limitation period.
[8] Southern Arizona York Refrigeration Co. v. Bush Mfg. Co., 331 F.2d 1 (9th Cir. 1964), holds that a party who has been held liable on a breach of warranty theory can sue his vendor who is primarily liable, on an indemnity theory but that the plaintiff in the indemnity suit must establish negligence. The judgment in the breach of warranty action does not constitute collateral estoppel with respect to negligence.
[*] Raymond-Dravo-Langenfelder v. Microdot et al., 425 F. Supp. 614 (D.Del.1976).
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425 F. Supp. 1326 (1977)
Willie McCAMPBELL, Plaintiff,
v.
CHRYSLER CORPORATION, Defendant.
Civ. A. No. 75-70730.
United States District Court, E. D. Michigan, S. D.
January 26, 1977.
Ovander W. Stoner, Jr., Detroit, Mich., for plaintiff.
Thomas G. Kienbaum, Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., for defendant.
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR AWARD OF ATTORNEY'S FEES
CORNELIA G. KENNEDY, District Judge.
Plaintiff brought this action under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and § 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, alleging that he had been fired from his job with Chrysler Corporation because of his race. The case proceeded to trial, and at the close of the plaintiff's case the court granted defendant's Rule 41(b) motion to dismiss and entered judgment in *1327 favor of the defendant. Thereafter, the defendant filed this motion for attorney's fees.
An express provision for the award of attorney's fees to the prevailing party is found in § 706(k) of Title VII, 42 U.S.C. § 2000e-5(k). In interpreting Title VII's attorney's fees provision, courts have held that the "prevailing party" may be either plaintiff or defendant and have allowed both successful defendants and successful plaintiffs to recover such fees in appropriate cases. The difficulty is in determining what is an appropriate case.
The statute provides that the court may award attorney's fees "in its discretion," id., thus making it clear that it is an equitable decision to be made by the judge after considering the stated purpose of the legislation as well as the facts of the particular case. In this regard, the Title VII attorney's fees provision is similar to those contained in other civil rights legislation. See, e. g., Civil Rights Act of 1964, Title II, § 204(b), 42 U.S.C. § 2000a-3(b); Fair Housing Act of 1968, § 812(c), 42 U.S.C. § 3612(c). In interpreting the attorney's fees provisions of Title II of the Civil Rights Act of 1964, the Supreme Court held that in the absence of exceptional circumstances a prevailing plaintiff should be awarded attorney's fees routinely. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968). The courts have subsequently extended the rationale of Newman and Northcross v. Board of Education, 412 U.S. 427, 93 S. Ct. 2201, 37 L. Ed. 2d 48 (1973) (attorney's fees provision contained in § 718 of Emergency School Aid Act of 1972, 20 U.S.C. § 1617) (hereinafter Newman-Northcross rule) to successful Title VII actions. See, e.g., Albemarle Paper Company v. Moody, 422 U.S. 405, 415, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975) (indicating Newman-Northcross rule should be applied to award of attorney's fees in Title VII cases); Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976). The purpose of making attorney's fees ordinarily available to a successful plaintiff in a civil rights action was stated by Mr. Justice White in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975):
"[U]nder some, if not most, of the statutes providing for the allowance of reasonable fees, Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation." Id. at 263, 95 S.Ct. at 1624.
The above rationale does not provide support for the award of attorney's fees to a successful defendant in a Title VII action. The average Title VII plaintiff knows very little other than that he has been fired or not hired, and he has a belief that his misfortune was the product of discrimination. Ordinarily he would rely on the advice of an attorney in determining whether his belief of discrimination was sufficiently well founded to warrant a lawsuit. Furthermore, the information needed to determine whether the discharge or refusal to hire was based on discrimination would often be unavailable to the plaintiff prior to the initiation of a lawsuit. For these reasons, it would be unjust to award attorney's fees to a successful defendant routinely. The desire of Congress to use private actions to help erase discrimination would be impeded; civil rights cases would be brought only in the clearest cases of discrimination or by an indigent, an award against whom would be uncollectable. Advocacy into uncharted areas would be stifled. Thus a much more restrictive standard has evolved for testing whether to award attorney's fees to a successful defendant.
The standard that has evolved is whether the case brought by the plaintiff was unreasonable, frivolous, meritless or vexatious. See Carrion v. Yeshiva University, 535 F.2d at 727; United States Steel Corporation v. United States, 385 F. Supp. 346 (W.D.Pa. 1974), aff'd, 519 F.2d 359 (3d Cir. 1975). This standard, as well as the admittedly easier standard for successful plaintiffs, was commented upon favorably by the Senate in its report on the Civil Rights Attorney's *1328 Fees Awards Act of 1976, Pub.L. No. 94-559 (Oct. 19, 1976), 90 Stat. 2641:
"It is intended that the standards for awarding fees be generally the same as under the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S. 2278, if successful, `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' Such `private attorneys general' should not be deterred from bringing good faith actions to vindicate the fundamental rights here involved by the prospect of having to pay their opponent's counsel fees should they lose. Such a party, if unsuccessful, could be assessed his opponent's fee only where it is shown that his suit was clearly frivolous, vexatious, or brought for harassment purposes. This bill thus deters frivolous suits by authorizing an award of attorneys' fees against a party shown to have litigated in `bad faith' . . .." S.Rep.No.94-1011, 94th Cong., 2d Sess. U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912 (June 29, 1976) (emphasis added, footnotes and citations omitted).
Although the Senate Report was discussing standards for the Civil Rights Attorney's Fees Awards Act, it is clear that the authors of the Report understood that their recommended standard was the one presently applied to cases brought under Title VII and that the Senate approved of the standard.
Just as the Report equated "clearly frivolous, vexatious or brought for harassment purposes" with "bad faith," most reported cases in which attorney's fees have been levied against a plaintiff are ones which the courts found to have been brought in bad faith. See, e. g., Carrion v. Yeshiva University, supra (substantially identical issue previously litigated by plaintiff in state courts); Maldonado v. Yellow Freight System, Inc., 10 F.E.P. Cases 1290 (C.D.Cal. 1975) (plaintiff could not satisfy two of the four elements of prima facie case, was unqualified to fill job for which he applied; employer was not hiring anybody at time he applied; action held to be patently groundless); Lundberg v. Delta Airlines Inc., 13 F.E.P. Cases 603 (E.D.La.1976) (action could not have been prosecuted in good faith beyond time at which plaintiff was made aware of defenses which clearly disposed of the claim).
In some cases in which attorney's fees were awarded against an unsuccessful plaintiff, the courts have either not articulated the standard upon which they were awarded or even perhaps inferred that the standard would be the same for plaintiff and defendant, see, e. g., Van Hoomissen v. Xerox Corporation, 503 F.2d 1131, 1133 (9th Cir. 1974); Matyi v. Beer Bottlers, etc., Local, etc., 1187, 392 F. Supp. 60 (E.D.Mo. 1974). In some instances, e. g., Van Hoomissen v. Xerox, supra, these awards have been against the EEOC, a fact which would distinguish that case from one, such as this one, where any award would be against an individual plaintiff. Since an award against the EEOC would not have the chilling effect that would result from an award against an individual plaintiff who had pursued, in good faith, a meritless claim, there is a sound basis for such a distinction.
There is an absence of controlling Sixth Circuit precedent. However, this court believes that the standard articulated by the Second Circuit in Carrion v. Yeshiva University, supra, and endorsed by the Senate in its report on the Civil Rights Attorney's Fees Awards Act of 1976 is the correct one and that it is the one that will be adopted in this Circuit. Therefore, this court holds that to be awarded attorney's fees, a prevailing defendant must show that an individual plaintiff has proceeded in bad faith. Bad faith could be inferred if the claim were shown to have been clearly frivolous, unreasonable, vexatious, or brought for harassment purposes. An examination of the facts in this case fails to demonstrate that plaintiff brought it in bad faith.
In support of its position that the action was brought in bad faith, Chrysler Corporation relies on the following factors. First, the complaint falsely stated in paragraph 5 that prior to his discharge on November *1329 28, 1972, the plaintiff had not been disciplined by the defendant. Second, the plaintiff was reinstated by Chrysler and called back to work on January 7, 1974, with seniority but without backpay after a settlement of his union grievance for his discharge. Chrysler claims the reinstatement was done in complete settlement of any claims plaintiff might have arising out of his November 28, 1972 discharge. The reinstatement was followed by a dismissal of his civil rights claim by the Michigan Civil Rights Commission, which noted the above settlement on its records. Third, the complaint alleged that Chrysler had a pattern or practice of disciplining black employees more severely than whites; this the plaintiff failed to prove. Finally, and independent of this case, the attorney for Chrysler stated in an affidavit that the defendant's attorney had informed him that the plaintiff intends to bring a lawsuit in state court based upon a subsequent discharge (on August 28, 1975) which occurred after his reinstatement under what the defendant alleges to have been substantially identical circumstances.
The allegation in the complaint regarding lack of prior disciplinary actions would be persuasive indicia of bad faith if the complaint had been verified by Mr. McCampbell. It was not. Furthermore, Mr. McCampbell stated in both his deposition (pp. 21-29) and at trial that blacks were disciplined for things which a white employee could do with impunity. His conception of his prior disciplines was that they had been imposed because he was black. One statement from his deposition appears to summarize his opinion of how blacks are treated at Chrysler. The statement was made when he was asked whether he could explain what he meant by pattern or practice of discrimination. He replied: "Yes, because black people continually are being harassed . . .." Deposition of Willie McCampbell at 22 (Deposition). Plaintiff testified that he felt he had been unfairly disciplined. He should not be penalized for his attorney's incorrect substitute statement that he had not been disciplined.
Lack of proof of pattern or practice also fails to provide a basis for concluding that the plaintiff proceeded in bad faith. It is clear from the examples given in his deposition that Mr. McCampbell believed that blacks as a group were treated more harshly than whites when discipline was meted out. See Deposition at 22-26. His testimony at trial was consistent in this respect. It was on the basis of other conflicting testimony that the court resolved this issue of fact against the plaintiff.
The defendant's third charge, that Mr. McCampbell knew that the reinstatement of January 7, 1974 was in total settlement of his disputed discharge, was previously addressed by this court when it denied the defendant's motion to dismiss or for summary judgment. At that time, the court pointed out that for this to be a good defense against a subsequent Title VII suit the proofs would have to show that plaintiff's acceptance of reinstatement was expressly conditioned on a waiver of his right to pursue further relief and that the waiver was knowing and voluntary. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n.15, 94 S. Ct. 1011, 39 L. Ed. 2d 147. From the testimony and evidence offered at trial, this court concludes that this was not proved and provides no basis for finding that the plaintiff acted in bad faith. The reinstatement was the result of a grievance prosecuted by the union, and acceptance of a grievance settlement does not constitute a waiver of any Title VII rights that an employee may have in the absence of an express condition coupled with a knowing and voluntary waiver. See id. Although there was some evidence from which it could be inferred that plaintiff agreed to the dismissal of his claim before the Michigan Civil Rights Commission in return for his reinstatement, the trial record does not provide a sufficient basis for such a finding.
The last point raised by the defendant is the intent of Mr. McCampbell to litigate the discharge which occurred in August, 1975. It should first be pointed out that the case is not before this court. It is an action of Mr. McCampbell which will supposedly follow *1330 this action, but it is not for this court to decide its merits. If the action is brought and the facts indicate that it was substantially identical to this action, the state court may determine that a prior unsuccessful and substantially similar case indicates bad faith in prosecuting the later case. However, this court believes that even if it were to assume that the 1975 discharge would be litigated and would prove to be based on substantially identical facts, such an event would not prove that the present action was brought in bad faith, when it was brought before that discharge had occurred.
The court finds that the factors upon which the defendant would have it find bad faith do not outweigh other factors indicative of a good faith belief on the part of the plaintiff that he was a victim of racial discrimination. It further finds that the case was not clearly frivolous, unreasonable, vexatious, or brought for harassment purposes. The motion for award of attorney's fees is therefore DENIED.
Costs may be taxed to defendant as the prevailing party.
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742 S.W.2d 512 (1987)
Harold Lloyd FINKLEA, Appellant,
v.
The JACKSONVILLE DAILY PROGRESS, the Tyler Morning Telegraph, David Leary, the City of Rusk, Texas, the Rusk Police Department, Randy Hatch, Mike Thomas, the Cherokeean of Rusk, Texas and John/Jane Doe Number One, Appellees.
No. 12-87-0021-CV.
Court of Appeals of Texas, Tyler.
December 11, 1987.
Rehearing Denied January 15, 1988.
*513 Michael E. Jones, The Potter Firm, Tyler, John S. Ament, Jacksonville, Steven R. Guy, Rusk, for appellees.
Harold Lloyd Finklea, pro se.
BILL BASS, Justice.
This is a libel action in which summary judgment was granted in favor of all defendant newspapers and the City of Rusk and against plaintiff-appellant, Finklea. We affirm the judgment.
Finklea asserts the allegedly defamatory statement was made to news reporters by the Police Chief and Assistant Police Chief of the city of Rusk. The statement was *514 subsequently printed in the defendant newspapers in a news article regarding a plea of guilty entered by a former deputy sheriff to a charge of accepting a gift from Finklea, a person subject to his jurisdiction. The articles described Finklea as a convicted methamphetamine dealer with four drug convictions, "serving a twelve year sentence after he was convicted of operating a burglary ring in Jacksonville," quoting Rusk Police Chief Randy Hatch. Finklea's petition asserts the statements are untrue and defamatory and he incorporates as exhibits two indictments for theft over $750 but less than $20,000 which he claims are the basis of his present incarceration, his five-page F.B.I. Identification Record Master File (rap sheet), and a copy of an opinion by the Tyler Court of Appeals as a preliminary showing that he has never been convicted of distributing or possessing amphetamines and that he is not presently serving a term for operating a burglary ring.
All defendants moved for summary judgment based upon their defenses of truth and the "libel proof plaintiff" doctrine. The defendant newspapers also alternatively urged that the statements fall within their privilege of reasonable and fair comment under Tex.Civ.Prac. & Rem.Code Ann. § 73.002(b)(2) (Vernon 1986). The only summary judgment evidence submitted by defendants was an unverified copy of Finklea's F.B.I. Identification Record Master File. Finklea's response was not timely and was stricken. The trial court granted the motions without stating the specific ground for summary judgment. The summary judgment granted by the trial court must be upheld if it can be supported on either of the grounds of defense relied upon. Borg-Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140 (Tex.App.Amarillo 1984, writ ref'd n.r.e.).
Finklea's single point of error asserts the court erred in granting summary judgment since the defendants' motions were unsupported by summary judgment evidence. He argues that the F.B.I. rap sheet is not proper summary judgment evidence because it is unsworn and of no probative value because it is hearsay. He also contends that pleadings cannot constitute summary judgment evidence even if sworn.
While it is settled that pleadings do not constitute summary judgment proof, facts alleged in pleadings are judicial admissions. Houston First American Savings v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). Finklea incorporated the F.B.I. rap sheet into his petition to demonstrate the absence of any conviction for methamphetamine possession or sale. So incorporated, its contents became part of the petition's fact allegations that, as admissions, may operate as proof sufficient to support summary judgment. Bailey v. Gulfway National Bank of Corpus Christi, 626 S.W.2d 70, 73 (Tex.App.Corpus Christi 1981, writ ref'd n.r.e.). Finklea's petition also sets forth the contents of the newspaper accounts in the Tyler and Jacksonville newspapers.
The defendants also attached the newspaper articles and the rap sheet to their motion for summary judgment. Finklea complains for the first time on appeal that the rap sheet is unsworn and is hearsay. Finklea waived both objections by failing to raise them in the trial court. Bailey, 626 S.W.2d at 72. Hearsay admitted without objection has probative value. Tex.R.Evid. 803.
The summary judgment proof sustains Finklea's contention that he has not been convicted of amphetamine possession or sale and that he is not presently serving a sentence for burglary. But the proof does show a long record of arrests and convictions extending over the last twenty-five years, including several charges of burglary and some six convictions of burglary or theft. Although the news articles stated he had four drug convictions, it appears that Finklea was convicted once for the possession of a narcotic drug and once for the possession of a controlled substance.
Both newspapers urged in their motions for summary judgment that the statements in question reporting the conviction of Sgt. Charles Ewalt for accepting a gift from Finklea were conditionally privileged under *515 Tex.Civ.Proc. & Rem.Code Ann. § 73.002 (Vernon 1986) which, in pertinent part, reads as follows:
Privileged Matters
(a) The publication by a newspaper ... of a matter covered by this section is privileged and is not a ground for a libel action
. . . .
(b) This section applies to:
(1) a fair, true, and impartial account of:
(A) a judicial proceeding, ...;
. . . .
(2) reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information.
We agree. In determining whether the newspapers' account was fair, true or impartial, "[t]he critical test is the effect on the mind of the reader or listener; if the effect on the mind of the recipient would be the same, any variance between the actions charged and the actions proved should be disregarded." Crites v. Mullins, 697 S.W.2d 715, 717 (Tex.App.Corpus Christi 1985, writ ref'd n.r.e.). Even when the scale of the misconduct has been exaggerated manyfold, the substantial truth necessary to sustain the privilege is demonstrated "if no more opprobrium would be attached to appellant's actions merely because of such exaggeration." Id.; see also Dudley v. Farmers Branch Daily Times, 550 S.W.2d 99 (Tex.Civ.App.Eastland 1977, writ ref'd n.r.e.) (appellant reported charged with theft of $168,000 of polyethylene scrap rather than $6,655.50).
Appellant was not shown to be a convicted methamphetamine dealer or head of a burglary ring. But the record does show that at the time in question he was convicted on two separate theft indictments, that he had previously been convicted of burglary and theft at least four times, and that while he was not a convicted methamphetamine dealer, he had been twice convicted of drug related offenses, one of which, possession of hydromorphone, carries a greater penalty than amphetamine sale. In our opinion, it is extremely improbable that, in the mind of the ordinary reader, any greater opprobrium would attach to appellant's crimes as reported than to those crimes for which he has been convicted. Summary judgment on the basis of the conditional privilege contained in section 73.002 was properly granted.
Appellees also contend that the district court properly granted summary judgment based upon the "libel proof plaintiff" doctrine. They argue that at the time of the publication of the allegedly defamatory statements Finklea's reputation was already so poor that, as a matter of law, he could recover no more than nominal damages.
The doctrine was first enunciated by the Second Circuit in 1975 in Cardillo v. Doubleday & Co., Inc., 518 F.2d 638 (2d Cir. 1975), which considered the plaintiff's claim that published statements that he had participated in certain crimes were defamatory. The court held as a matter of law that in view of the plaintiff's long history of criminal activity he was "libel-proof, i.e., so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of the case, involving as it does First Amendment considerations." Id. at 639. A year later, the Second Circuit declined to extend the application of the doctrine terming it "a limited, narrow one, which we will leave confined to its basic factual context." Buckley v. Littell, 539 F.2d 882, 889 (2d Cir.1976), cert. denied, 429 U.S. 1062, 50 L. Ed. 2d 777 (1977).
Since first recognized in Cardillo, the doctrine has been adopted and applied in several jurisdictions. The cases that most compellingly invite its application are those cases, like Cardillo, in which criminal convictions for behavior similar to that alleged in the challenged communication are urged as a bar to the claim. Probably a substantial majority of the reported cases relate to the specific issue of the plaintiff's criminal conduct. See, Wynberg v. National Enquirer, Inc., 564 F. Supp. 924 (C.D.Cal.1982) (plaintiff's past criminal convictions established a bad reputation which rendered him libel proof as a matter of law as to the *516 statements in question); Logan v. District of Columbia, 447 F. Supp. 1328 (D.D.C. 1978) (plaintiff was unable as a matter of law to prove an injury to his reputation in view of his long history of drug use, convictions for drug offenses, and convictions for other offenses); Cofield v. Advertiser Co., 486 So. 2d 434 (Ala.1986) (inmate precluded from libel action as a matter of law because of prior criminal convictions); and Jackson v. Longcope, 394 Mass. 577, 476 N.E.2d 617 (1985) (prison inmate was not libeled as a matter of law because of prior criminal convictions). See also, Annot., Defamation: Who is "Libel Proof," 50 A.L.R. 4th 1257 (1986). While unwilling to acknowledge that anyone was "libel-proof" or the existence of such a doctrine, the D.C. Circuit has suggested "[t]here may be validity to the proposition that at some point the erroneous attribution of incremental evidence of a character flaw of a particular type which is in any event amply established by the facts is not derogatory ... That is so, however, not because the object of the remarks is `libel proof,' but because, since the essentially derogatory implication of the statement ... is correct, he has not been libeled." Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 (D.C.Cir. 1984) (n. 6), vacated and remanded on other grounds, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Damage to reputation is the essence of libel. Monitor Patriot Co. v. Roy, 401 U.S. 265, 275, 91 S. Ct. 621, 627, 28 L. Ed. 2d 35 (1971); George Knapp & Co. v. Campbell, 14 Tex. Civ. App. 199, 36 S.W. 765, 769 (1896). While injury to reputation is but one of several elements of general damage that the jury may consider in the assessment of damages in defamation, the others, such as personal humiliation, mental anguish and suffering, are those that presumably result from injury to reputation. Therefore, defamation claims must be predicated upon injury to reputation, although the claimant may waive injury to reputation as one of the separate elements to be considered by the jury in its assessment of damages without waiving his cause of action for injury to reputation. See, Outlet Co. v. International Security Group, Inc., 693 S.W.2d 621, 624 (Tex.App. San Antonio 1985, writ ref'd n.r.e.). However, prior to the decision of the United States Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), it was the rule in Texas, as elsewhere, that it was not necessary to prove actual damage when the words used were libelous per se. The erroneous imputation of a crime punishable by imprisonment in jail or the penitentiary is libelous per se. Belo v. Fuller, 84 Tex. 450, 19 S.W. 616 (1892). Damages were presumed and juries free to assess purportedly compensatory damages without evidence of actual loss. Reasoning that the doctrine of presumed damages was inimical to "the vigorous exercise of First Amendment freedoms" because it invited the punishment of unpopular opinion rather the compensation of actual injury, the Gertz court restricted State remedies for defamation plaintiffs to damages for actual injury shown by the evidence except in those cases where the plaintiff showed the publisher's reckless disregard for the truth or knowledge of the falsity of the challenged communication.
It is clear that the doctrine should have only a limited application which presents the difficult problem of defining its scope. There are few so impure that cannot be traduced. Although a person's general reputation may be so bad as to render him libel proof on all matters, ordinarily even the public outcast's remaining good reputation is entitled to protection. Ray v. Time, Inc., 452 F. Supp. 618, 622 (W.D.Tenn.1976). A convicted forger cannot be described as a "blood thirsty criminal."
In determining in what matters or issues it is impossible to defame the plaintiff, most cases invoking the doctrine narrow its application to those instances in which the challenged statement erroneously describes behavior similar or identical to that for which the plaintiff has been conclusively shown to be guilty. Another smaller group of decisions has applied the doctrine when the plaintiff challenges statements substantially less damaging to his reputation *517 than other unchallenged statements in the same communication.[1] By implicitly conceding the truth of the overwhelmingly derogatory portion of the statement, the plaintiff himself conclusively demonstrates that he had no remaining reputation in the matters touched by the challenged statement.
In both classes of cases applying the libel proof plaintiff doctrine, the validity of the "essentially derogatory implication" of the challenged statement has been established, either by the defendant's proof of substantially similar conduct or by the plaintiff's own tacit admission of more reprehensible behavior necessarily deduced from the plaintiff's failure to challenge the more disparaging part of the disputed statement.
It has long been the rule in Texas that the plaintiff's tarnished reputation may be shown in mitigation of damages. The libel proof plaintiff doctrine is the logical conclusion to be drawn from the principle underlying that rule: where there is no reputation it cannot be damaged and without damage to reputation there is no actionable defamation.
In the sole Texas case discussing the doctrine, the plaintiff complained that the defendant newspaper had falsely published details of a consumer fraud suit brought against him by the Attorney General. The defendant newspaper contended that his claim was barred because the articles could not have injured his reputation any more than it had already been damaged by the allegations in the Attorney General's suit. The Waco Court of Appeals held that the Attorney General's allegations of civil wrongdoing, however damaging, did not represent a sufficient basis for the invocation of the libel proof plaintiff doctrine as a summary bar to the plaintiff's libel claim. However, the opinion of the Waco Court of Appeals acknowledged that common sense argued for the application of the doctrine "in furtherance of judicial economy" in defamation cases brought by infamous plaintiffs. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex.App.Waco 1986, writ ref'd n.r.e.).
More than judicial economy argues for the invocation of the doctrine. The United States Supreme Court has warned that the First Amendment forbids granting defamation plaintiffs "gratuitous awards of money damages far in excess of any actual injury." Gertz v. Robert Welch, 418 U.S. 323, 349, 94 S. Ct. 2997, 3012, 41 L. Ed. 2d 789 (1974). The trial courts have been cautioned to first establish that a libel claim actually serves the purpose of the libel law which is to redress injury to reputation. Recognizing that the cost of a successful libel defense against a meritless claim is itself a burden stifling the exercise of First Amendment rights, the Supreme Court has said that judges must independently evaluate libel cases and summarily dispose of illegitimate claims. See Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984).
The record in this case shows without question that the plaintiff has a criminal record for burglary, theft and drug possession spanning the last quarter century, conduct substantially similar to that imputed to him in the challenged statements. Although none of his at least eight convictions was for sale of amphetamines, he was convicted in 1980 for possession of hydromorphone, denominated as an even more serious offense by our Controlled Substances Act. In the particular area of the appellant's character touched by the challenged statement, his involvement with drugs and burglary, the effect of the statements on Finklea's reputation is utterly inconsequential. It is impossible to envision a Texas jury awarding him any damages. In the unlikely event a verdict for damages was returned, on these facts it *518 would be the duty of the court to set it aside. Under these circumstances, the imposition upon the defendants of the difficulty and expense of a further defense would not serve the purpose of the libel law which is to redress injury to reputation, but would instead place upon them a burden inimical to "the vigorous exercise of First Amendment freedoms." See Gertz. We conclude that Finklea is "libel proof" as to that area of his character touched by the challenged communications. Moreover, considering the statements' content and the appellant's record, it is our opinion and we hold that he has not been libeled because "the essentially derogatory implication of the statement is correct." See Liberty Lobby, 746 F.2d at 1568 (n. 6). The trial court properly granted summary judgment for all defendants.
The judgment is affirmed.
NOTES
[1] For example, in Jackson v. Longcope, the allegedly libelous news article said that Jackson had been convicted of murder, kidnapping, rape and robbery; had been indicted for the slaying of two other young women in which all the victims were raped and strangled; and finally that lie had been convicted of crimes associated with a shootout with the Cambridge police "during a stolen car chase." Jackson claimed he was libelled because not all the victims were raped and strangled and the shootout had not occurred during a "stolen car chase."
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150 Conn. 349 (1963)
ANTHONY FASANELLI ET AL.
v.
NUNZIO TERZO CITY OF HARTFORD
v.
NUNZIO TERZO
Supreme Court of Connecticut.
Argued January 3, 1963.
Decided February 26, 1963.
BALDWIN, C. J., KING, MURPHY, SHEA and ALCORN, JS.
*350 William R. Moller, with whom were Edmund T. Curran and, on the brief, J. Ronald Regnier and
*351 Robert F. Taylor, for the appellant (defendant in each case).
William R. Davis, with whom were Pasquale R. Ierardi and, on the brief, Leon RisCassi, for the appellee (named plaintiff in the first case); with them, on the brief, were Frank E. Dully and Michael A. Connor, Jr., for the appellee (plaintiff city of Hartford in each case).
MURPHY, J.
The plaintiff Anthony Fasanelli sustained injuries when the police cruiser which he, as a member of the Hartford police department, was operating in pursuit of a speeder collided with an automobile operated by the defendant. Fasanelli brought suit to recover damages. The city of Hartford intervened to recover for the workmen's compensation it had paid to Fasanelli. In a second action, the city sought to recover for the damage to the police cruiser. From the judgments rendered on verdicts for the plaintiffs, the defendant has appealed. For the purpose of these appeals, we shall discuss the issues in the first case only, since the judgment in the second case is dependent on the outcome of the first.
From the undisputed facts, the jury could have found the following: At about 1:15 a.m. on May 11, 1957, Fasanelli, hereinafter called the plaintiff, was driving west on Park Street in Hartford, in pursuit of an automobile going at an excessive speed, when his cruiser collided with the defendant's westbound automobile in the southerly half of Park Street as the defendant was turning left to enter Bartholomew Avenue. Both Park Street, fifty feet wide, and Bartholomew Avenue, thirtytwo feet wide, are two-way streets. Bartholomew *352 Avenue intersects Park Street only from the south. Traffic at the intersection is controlled by an overhead traffic light which was green for westbound traffic at the time. The area is well lighted by street lights. Park Street is straight and level for approximately 500 feet east of Bartholomew Avenue and has solid white lines in the center to separate the eastbound and westbound traffic lanes, and broken white lines to delineate the two traffic lanes in each direction. It was raining, and the streets were wet. There was no eastbound traffic on Park Street. Just before the collision, the speeding car passed to the right of the defendant and splashed his car with water.
In addition, the plaintiff offered evidence to prove and claimed to have proved the following: He had turned on his siren and dome light a quarter of a mile east of Bartholomew Avenue and had them in continuous operation until after the collision, when he shut off the siren. The dome light remained on, and so did the headlights, which had been lighted at all times and which cast a 200-foot beam on the highway. After the plaintiff turned on the siren and the dome light, he passed two cars which had pulled to the right to let him by. He then saw the defendant's car ahead of him and astride the broken white line between the westbound lanes; the speeding car was at that time passing to the right of the defendant's car. The defendant then started to pull his car to the right and suddenly, without signaling, turned left into the path of the plaintiff's car, which was about to pass on the left. The right front of the cruiser struck the left side of the defendant's car, and the impact forced both cars across the intersection to its southwest corner. Neither car had entered the *353 intersection before the impact, which occurred approximately ten feet east of Bartholomew Avenue and thirteen feet north of the south curbline of Park Street. The plaintiff was in pursuit of a fleeing law violator who was driving at a speed of about sixty-five miles per hour. The plaintiff was going about forty miles per hour. As his siren was sounding and the dome light was flashing, he had the right of way over the defendant, but the defendant failed to drive to the right and stop his car on the plaintiff's approach. The defendant, instead, turned to the left before reaching the intersection.
The defendant's additional claims of proof were as follows: He was on his way home, proceeding at about twenty miles an hour where thirty miles an hour was permitted, and as he approached Bartholomew Avenue he put on his signal light for a left turn. The speeding car passed him on his right. He looked into his rear-view mirror, saw no red lights and heard no siren. He was close to the center of the road. The collision occurred while the plaintiff was passing the defendant to the left to pass to the right of the defendant without danger of collision. The plaintiff was operating his car with only the parking lights on.
The defendant has filed an assignment of errors, claiming error in the denial of the motion to set aside the verdict, in the refusal to charge as requested, in the charge as given, in certain rulings on evidence, and in the finding. Many of the claimed errors are too trivial to deserve discussion. This is particularly true of most of the twenty specific exceptions taken to the charge. The attempted anatomical *354 dissection of the charge at the conclusion of its delivery detracted from the force of the exceptions which had merit and by which errors in the charge could have been corrected if those exceptions had not been submerged in the inconsequential. We devote our attention to the exceptions assigned as error which have merit and to certain rulings on evidence.
Basically, the charge as given included the material portions of the defendant's requests to charge. The failure of the court to charge in the exact language of the requests does not constitute error. Jacobs v. Swift & Co., 141 Conn. 276, 280, 105 A.2d 658. Under the specifications of negligence in the complaint and of contributory negligence in the special defense, as well as the claims of proof which the parties maintained had been established by the evidence, it was necessary for the court to read to the jury the applicable portions of a number of statutes. In the main, the charge substantially covered the questions of law involved. Its fault lay in an inadequate application of the many seemingly inconsistent statutory requirements to the conflicting facts claimed by the parties. It was of little assistance to a jury of laymen to learn, without being shown how the matter was related to the facts, that one statute required a driver to pull to the right and stop at the sound of a police car siren, another statute required him to make a left turn from the part of the right side of the highway nearest the center line, and still another statute in certain circumstances permitted overtaking traffic to pass him on his right.
The plaintiff relied mainly on the right of way to which he claimed he was entitled under § 14-283 of the General Statutes and on the defendant's duty *355 under that statute to drive as near as practicable to the right side of the highway and stop. After reciting the pertinent provisions of § 14-283, the court went on to say: "Pursuant to this statute, the operator of a police cruiser is granted the right of way over all other vehicles or traffic upon any private or public way, and pursuant to this statute the driver of a private passenger vehicle must immediately drive or operate his vehicle to the right side of the highway and grant the way to the emergency vehicle with its bell or siren sounding or operating. If you find that the defendant Terzo failed to grant the right of way to the emergency, that is, the police, cruiser in the manner prescribed by the statute, then this would constitute a violation of the statute and such a violation would be negligence as a matter of law as I have already indicated to you." The effect of this instruction was to indicate to the jury that the statute imposed an absolute duty on the defendant to turn to the right, and to eliminate from the jury's consideration the practicability of the defendant's pulling over to his right to allow the plaintiff to pass on his leftif the jury believed the claim of the defendant that he was already in the left westbound lane preparing to make a left turn for which he was signaling, all in accordance with the provisions of §§ 14-241(b) and 14-242(a), (b). Thereafter, the court read the following portion of § 14-230, on which the plaintiff also relied: "Upon all highways, each vehicle shall be driven upon the right, except (1) when overtaking and passing another vehicle proceeding in the same direction, (2) when overtaking and passing pedestrians, parked vehicles, animals or obstructions on the right side of the highway [or] (3) when the right side of a highway *356 is closed to traffic while under construction or repair." The court failed to include in its instruction a further exception in the statute which applies when a vehicle is preparing for a left turn at an intersection.
The defendant has assigned error in the limitations placed by the charge on the application of two statutes, §§ 14-232 and 14-233, which he claimed governed the conduct of the plaintiff in his attempt to take the right of way. The court, calling attention to the defendant's claim that the plaintiff should have passed to the right of the defendant, stated that there was an exception to § 14-232, the statute which requires passing to be on the left, and that the excepting statute, § 14-233, provided that the driver of a vehicle "may overtake and pass upon the right of another vehicle ... when conditions permit such movement in safety and ... [w]hen the vehicle overtaken is making or has signified the intention to make a left turn." The court then went on to say that § 14-233 would only apply if the defendant had given a proper signal of his intention to make a left turn. This instruction eliminated from the consideration of the jury the important fact that § 14-233 also applied when the overtaken vehicle was actually engaged in making a left turn.
Section 14-235 prohibits the driving of any vehicle to the left side of the highway when the vehicle is approaching within 100 feet of or crossing an intersection. The court instructed the jury that if they found that the plaintiff had violated that statute and that the violation was the proximate cause of the collision, they could find for the defendant. Immediately following that instruction, the court nullified its application when it charged:
*357 "On the other hand, I must remind you, however, that under the statute ... the plaintiff had a right to expect that the defendant would move his vehicle to the right and stop it as required by the statute, assuming you find that the plaintiff gave a signal with the siren or that the dome light was on, and the other things required by the statute. So that in considering a violation of this statute by the plaintiff you must also consider with it the right the plaintiff had to expect the defendant to move his vehicle to the right side of the highway and to stop. I leave that with you for you to determine." Section 14-283, which grants the right of way to a police or other emergency vehicle, requires it to be equipped with a distinctive, audible sounding device which is sending forth a loud and adequate warning of the vehicle's approach. No mention is made in § 14-283 of the use of a dome light. Under the conflicting claims of proof, the jury could have found that although the dome light on the cruiser was in operation prior to the collision, the plaintiff's siren was not being sounded. If the jury were to reach that conclusion, the use only of the dome light would not be sufficient to enable the plaintiff to rely on the right of way provisions of § 14-283. As the charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict, the errors in it to which we have alluded were material and require a new trial. Steinecke v. Medalie, 139 Conn. 152, 157, 90 A.2d 875; Maltbie, Conn. App. Proc. § 91.
During the direct examination of the defendant, who had been called as a witness by the plaintiff, the defendant testified that the point of collision was within the intersection, near the southwest corner of Park Street and Bartholomew Avenue. *358 He also testified that he had signed and filed an accident report with the motor vehicle department, and he identified a photostatic copy as being a copy of his report. He had been called by the plaintiff under § 52-178 of the General Statutes, which permits a litigant not only to use his adversary as a witness but, under a 1959 amendment, to examine him as an adverse witness. The plaintiff offered the motor vehicle report in evidence as an exhibit to show inconsistencies between the testimony of the defendant in court and the statements which he had made in the report. In the examination of the defendant, it developed that the report had been filled out by an attorney whom the defendant had consulted and that he did not know who had made the diagram on the report. The defendant objected to the admission of the report because it had not been filled out by him personally and because the plaintiff was seeking to impeach his own witness. The court overruled the objections and admitted the document in evidence. The ruling was correct. Jacobs v. Connecticut Co., 137 Conn. 189, 191, 75 A.2d 427; Guarnaccia v. Wiecenski, 130 Conn. 20, 25, 31 A.2d 464. The defendant was required to file his written report of the details of the accident with the motor vehicle commissioner within forty-eight hours after the accident. General Statutes § 14-108. The defendant had identified the report as his own, and the fact that someone else had filled in the body of the report for him did not render it inadmissible. See Russo v. Metropolitan Life Ins. Co., 125 Conn. 132, 136, 3 A.2d 844.
The plaintiff was not precluded from using the accident report to show inconsistencies between the defendant's testimony in court and his prior statements. State v. Lopez, 46 N.M. 463, 467, 131 P.2d *359 273. One purpose of the 1959 amendment to § 52-178, allowing an adverse party to be examined to the same extent as an adverse witness, was to permit what amounts to cross-examination of the adverse party and contradiction of his testimony. Kovich v. Church & Church, Inc., 267 Mich. 640, 644, 255 N.W. 421; 98 C.J.S., Witnesses, § 367. "There can be no question as to either the relevancy or admissibility of any statement upon any material fact made by the ... [witness] in the report which was contradictory to his testimony upon the trial." Banks v. Connecticut Ry. & Lighting Co., 79 Conn. 116, 121, 64 A. 14. "The purpose of cross-examining... [an adverse] witness is to have the advantage of more searching methods of examination, by leading questions and the like, and by that means to enable a party to elicit information which otherwise might not be forthcoming." Fox v. Schaeffer, 131 Conn. 439, 447, 41 A.2d 46.
Later in the examination of the defendant by the plaintiff, the defendant provided, at the request of the plaintiff, a statement which consisted of four pages, upon each of which the signature of the defendant appeared and which he admitted signing. With the statement, there was a diagram which the defendant testified he had not seen. The diagram did not bear the defendant's signature, and there was nothing on it to show that the defendant had any part in its composition. The plaintiff offered the diagram, but not the statement, as an exhibit, and the court admitted it over the defendant's objection that it was not his diagram. The only reason advanced by the plaintiff for its admissibility was that it was attached to the defendant's signed written statement. Upon this state of the record, the objection was well taken, and the diagram *360 should have been excluded. See Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153.
Upon cross-examination of the defendant by his own counsel, the defendant sought to introduce in evidence a sketch of the scene and the position of the cars involved. He had made this sketch at home within two hours after the accident. He claimed that the sketch was admissible (1) to distinguish it from the diagram on the motor vehicle report and the diagram which accompanied his written statement, (2) to affect the credibility of those two diagrams, and (3) as a sketch made by him at the time, under the rule of cases such as Hall v. Sera, 112 Conn. 291, 295, 152 A. 148. The court sustained the objection to the admission of the sketch. Although this ruling may have been technically correct because of the particular reasons advanced for the admissibility of the sketch, it would have been admissible, in the discretion of the court, if it was illustrative of the witness' testimony, as it appears to have been. Capone v. Sloan, 149 Conn. 538, 543, 182 A.2d 414; see also Dawson v. Davis, 125 Conn. 330, 332, 5 A.2d 703.
The other assignments of error do not require discussion.
There is error in both cases, the judgments are set aside and new trials are ordered. In this opinion the other judges concurred.
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91 F.3d 143
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Gary J. LANGFORD, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 95-6306.
United States Court of Appeals, Sixth Circuit.
June 7, 1996.
1
Before: KENNEDY and NORRIS, Circuit Judges; MATIA, District Judge.*
ORDER
2
Gary Joe Langford appeals pro se from a district court judgment that denied a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. His appeal has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed in this case. Fed.R.App.P. 34(a).
3
Langford pleaded guilty to possessing marijuana for intended distribution, manufacturing marijuana and using firearms during and in relation to a drug trafficking crime, violations of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) as well as 18 U.S.C. § 924(c)(1). He was ultimately sentenced to an aggregate term of 60 months of imprisonment and four years of supervised release. Langford did not file a direct appeal of his convictions or sentence.
4
In his motion, Langford alleged that a parallel civil forfeiture of his real property resulted in a double jeopardy violation and that the forfeiture of this property was an excessive fine or punishment in violation of the Eighth Amendment. On August 2, 1995, the district court denied the motion under Rule 4(b) of the Rules Governing § 2255 Proceedings. Langford's motion for reconsideration was denied on September 18, 1995, and he now appeals.
5
Langford has not argued in this appeal that the forfeiture of his property violated the Eighth Amendment. He has, therefore, abandoned this claim for purposes of appellate review. See Wright v. Holbrook, 794 F.2d 1152, 1156-57 (6th Cir.1986).
6
Langford continues to argue that his criminal sentence violated double jeopardy because his property was forfeited in a separate civil proceeding. Property that has been used to facilitate a drug offense may be subject to forfeiture under 21 U.S.C. § 881(a)(7), and such a forfeiture constitutes punishment for purposes of the Double Jeopardy Clause. United States v. Ursery, 59 F.3d 568, 573 (6th Cir.1995), cert. granted, 116 S.Ct. 762 (1996). However, the district court properly rejected Langford's double jeopardy argument because he did not file a claim of ownership in the civil forfeiture proceeding. See United States v. German, 76 F.3d 315, 318-20 (10th Cir.1996) (collecting cases). Thus, jeopardy did not attach in that proceeding because Langford's culpability was not at issue there.
7
We also note that jeopardy attached in the criminal case when the court accepted Langford's guilty plea, on June 3, 1993. See Ursery, 59 F.3d at 571-72. Jeopardy would not have attached in the forfeiture proceeding until the default judgment was entered on September 20, 1993. See id. at 572. Thus, even if there had been a double jeopardy violation, the proper remedy would not be an order vacating Langford's criminal sentence. Moreover, a § 2255 motion is not the proper vehicle for seeking the return of forfeited property. See Dawkins v. United States, 883 F.Supp. 83, 85 (E.D.Va.), aff'd, 67 F.3d 297 (4th Cir.1995) (table).
8
Langford also argues that his firearm conviction should be dismissed because of an unspecified change to 18 U.S.C. § 924(c)(1). This claim was not raised in Langford's § 2255 motion, and we will not consider it for the first time on appeal. See Chandler v. Jones, 813 F.2d 773, 777 (6th Cir.1987).
9
Langford's remaining arguments are clearly unavailing.
10
Accordingly, the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable Paul R. Matia, United States District Judge for the Northern District of Ohio, sitting by designation
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78 N.J. Super. 545 (1963)
189 A.2d 733
IN THE MATTER OF THE ESTATE OF JOSEPH A. BENCEL, ALLEGED TO BE DECEASED.
Superior Court of New Jersey, Appellate Division.
Submitted March 11, 1963.
Decided March 29, 1963.
*546 Before Judges PRICE, SULLIVAN and LEWIS.
Mr. John A. Wyckoff appearing for appellant Stella E. Bencel (Messrs. James and Wyckoff, attorneys; Mr. Wyckoff, of counsel and on the brief).
Mr. Bernard Chazen, appearing amicus curiae (Messrs. Baker, Garber & Chazen, attorneys; Mr. Nathan Baker and Mr. Chazen, of counsel).
The opinion of the court was delivered by PRICE, S.J.A.D.
The instant appeal seeks the reversal of a judgment of the County Court, Probate Division, denying an application by plaintiff Stella E. Bencel for the entry of a judgment declaring her husband, Joseph A. Bencel, to be dead. Pursuant to an order of this court, the attorney of the respective next of kin of Thomas Joseph Bencel, Lewis George Batson, Jr., Michael J. Husti and George Monti, was permitted to participate in this appeal as amicus curiae.
The trial court determined that plaintiff had failed, both factually and legally, to establish her case. We disagree.
We have considered the evidence hereinafter recited and, pursuant to the authority of R.R. 4:53-1, have made our own findings of fact. Nowhere in the record is there any challenge of the "credibility of the witnesses." We are fully convinced that the evidence established that on July 19, 1961 the five men above-mentioned, together with one Michael Simson, *547 owner and operator of a motor boat, "One More," left Brielle by said boat for a day's deep-sea fishing trip off the coast of New Jersey. The fishing grounds to which they were planning to go were in excess of 16 miles offshore. The men have not since been seen alive and their bodies have not been found.
The proceedings in the County Court were initiated by the filing of a complaint by Stella E. Bencel aforesaid, on the basis of which the court issued an order, directed to Barbara Simson, wife of Michael Simson, and to various life insurance companies which had issued policies on the life of plaintiff's husband, requiring that they show cause "why a judgment should not be rendered declaring Joseph A. Bencel to be dead." On the return of said order on June 8, 1962 no one other than plaintiff's counsel appeared. Parenthetically, it is noted that all of the aforesaid life insurance policies were honored by payment of the proceeds thereof to plaintiff as the named beneficiary thereof on the "death" of her husband.
Although the insurance companies have made such payments, the instant appeal from the adverse judgment of the County Court is prosecuted because of the detrimental effect of the judgment in other areas vital to appellant. For similar reasons, those who have been granted the right to participate in the appeal as aforesaid join in seeking a reversal of the judgment as improvidently entered. It is asserted that in view of the aforesaid judgment and the consequent present inability of Stella Bencel to secure appointment as personal representative of her husband's estate, "her rights and consequently those of the other survivors * * * are in jeopardy, and substantial and irremediable prejudice may result." In this connection it is emphasized that in pending litigation in the United States District Court, stemming from the alleged deaths of the occupants of the boat, plaintiff is jeopardized by the refusal of the County Court in the instant case to adjudge that the proofs submitted warranted a finding that the said Joseph A. Bencel is dead. The following statement, descriptive of that litigation, appears in the brief submitted by counsel, amicus curiae:
*548 "There is presently pending in the United States District Court an action based on Wrongful Death on behalf of Rose H. Bencel, Margaret Ann Batson, Mary Husti Vegh, and Julia Monti. There is presently in issue in the Federal Court proceeding the status of these parties as well as the status of Mrs. Simson [the aforesaid Barbara Simson] who seeks to limit liability under 46 U.S.C.A. 183. There is a two year limitation period in both the Death on the High Seas Act. 46 U.S.C.A. § 763 and in N.J.S.A. 2:31-3."
The following amplification of said statement appears in an affidavit of counsel submitted on his application to be admitted amicus curiae:
"On behalf of our clients in the admiralty litigation we submit that insofar as their rights accrue under the Death on the High Seas Act, they are required by that statute to bring an action within two years of the date of death. The dilemma they face is one where the Admiralty Court may find they have no standing.
The inability of the widows to obtain letters of administration involves very serious problems for them and for their children. Must they wait seven years before they can pursue their remedies under the appropriate death act? There is a question whether they might not be barred after two years. * * * Certainly the courts must be concerned with a situation where an action would have to lay dormant for seven years and a litigant deprived of her rights."
In addition, it is asserted that the inability of appellants, and those joining her on appeal, to obtain letters of administration involve other detrimental results, which we find no need to recite.
The County Court, in refusing to enter a judgment declaring the death of Joseph A. Bencel, expressed its reason therefore in part as follows:
"I can't agree with counsel that there is an actual death in this case. Actual death in this State means that somebody has seen the person that has died and has identified him. That is not the situation here. We have no such testimony. Nobody has seen Joseph Bencel so that therefore there is nothing left but to rely on a presumption, so the question is as to whether or not this Court should presume that he is dead."
The trial judge, in his opinion, after referring to the provisions of N.J.S. 3A:40-1 and N.J.S. 2A:83-4, and *549 to the decision of this court in In re Zwiebel's Estate, 3 N.J. Super. 35 (App. Div. 1949), recited the proofs presented on the aforesaid order to show cause. He determined that the evidence was insufficient to support a finding that the said Joseph A. Bencel "was on the boat" when it left the Brielle dock; that there was "no testimony * * * that these men were out on the ocean * * *." He added:
"It is obvious that there was no proof of death. In other words, there has been no eye witness to it to say that Joseph Bencel is dead. To say that Joseph Bencel is dead is to presume a great number of things. Number one is the biggest presumption, that he was on the boat. As I indicated to you before. there is no presumption of that whatsoever. There is no presumption that any of these six men were on the boat."
Proofs received by the court on the return date of the aforesaid order to show cause included evidence that Joseph Bencel, his brother Thomas Joseph Bencel, the latter's brother-in-law, Michael Husti, George Monti and Louis Batson left their homes on July 18, 1961 to go fishing together out of Brielle on the early morning of July 19. The scheduled trip was to be taken on the aforesaid motor boat owned by Simson, docked at the Hoffman Anchorage at Brielle. Simson, five men, and the boat "One More" were seen at the Anchorage that night, and Simson told the owner of the pier that he was going fishing the next day with the five men to "Barnegat Ridge." That area, the record shows, is located "approximately 22 to 25 miles" from Barnegat Inlet and about "16 and a half miles offshore." The boat left at "5 o'clock the following morning," July 19, and did not "return to the dock."
When nothing had been heard from the missing men by July 20, and the automobile in which they had come to Brielle remained "parked in the yard" at the Anchorage, an extensive search for the boat and the men was initiated. It was conducted by the United States Coast Guard over an ocean area ranging from Rhode Island to the "Maryland-Delaware line." The search was coordinated and combined *550 with an exhaustive search by a task force of the United States Navy, using an aircraft carrier, planes and helicopters. Approximately 78,000 square miles of ocean area were searched during a ten-day period commencing July 20, 1961, all with negative results. On August 18, 1961 occupants of a fishing boat found "a piece of wreckage" about "12 miles off of Barnegat." The "wreckage" was brought to the "Barnegat Life Boat Station" and there positively identified as part of the "bow section" of the missing boat. The salvaged portion was described as "a piece of the bow, including about 18 feet of the gunwales, on either side of the boat." The section showed evidence of scorching and burning.
A lieutenant commander, attached to the Marine Inspection Office of the Coast Guard at New York, testified in detail with reference to the aforesaid search, and the identification of the portion of the boat. He presented his expert view as to the cause of the loss and disappearance of the boat and its occupants. He stated that his report, made on August 30, 1961, included the following:
"On the basis of the information I had I concluded that the boat disappeared in an area off Barnegat. I concluded that the wreckage found in that area was that of the One More. I concluded that she suffered a fire and as a result of the damage sustained the boat sank and I lastly concluded that all six persons on board the boat were missing and must be presumed dead for the purposes of our procedures."
The crux of the instant appeal is whether the proofs and the reasonable inferences to be drawn therefrom, in light of the applicable law, demonstrate the death of Joseph Bencel. As heretofore stated, we conclude that they do.
In passing, we record the fact that our order, permitting the filing of a brief by counsel as amicus curiae, also granted him the right to include in the appendix an affidavit of one Raymond Caire. This was done. The affiant states therein that on the evening of July 18, 1961 at the Anchorage at Brielle he had seen Simson with "4 or 5 men" who were to compose his "tuna fishing" party the next day; that he *551 (Caire) was also going fishing in the Barnegat area at the same time; that before dawn on July 19, 1961 he talked by radio from his boat with Simson on the latter's boat before leaving the dock, as they planned to use that medium of communication during the day "in case either one of us would catch fish, in which event we would notify the other to report the location"; that Simson's boat preceded Caire's boat out of the Anchorage and after about "an hour and three-quarters" at sea his (Caire's boat) passed "within 100 yards of the port side of the `One More'"; that he (Caire) saw "at least four men in the small cockpit" of the boat; that later in the day he tried "4 or 5 times" unsuccessfully to reach Simson by radio and had "no further contact" with Simson or his boat.
Although the lieutenant commander attached to the Marine Inspection Office of the Coast Guard as aforesaid had learned of the information possessed by Caire and referred to the latter in his testimony before the trial court, the facts set forth in the foregoing affidavit were not presented to the court. Consequently we have not based our decision on the additional facts so recorded and have rested our findings on the evidence before the trial court and the inferences which we feel may legitimately be drawn therefrom.
In order to properly assess the bases for the trial court's ruling we direct our attention to other portions of its opinion in which it amplified the views which we have hereinabove quoted. Particularly noting the trial judge's asserted reliance on In re Zwiebel's Estate, supra, we are of the opinion that he erred in deeming that the cited case controls the disposition of the case at bar. The trial judge stated that he perceived no "difference between the case before the Court and the Zwiebel case." However, an examination of the opinion in Zwiebel reveals that following the disappearance of Zwiebel, his automobile was found parked on a river bridge with his clothes, money, and other personal property in the car. A search for him, which included the dredging of the river area, proved fruitless. In the cited case there was no *552 "special peril" involved and the facts which are recited in the opinion (at pp. 36-38) do not exclude the possibility that Zwiebel's disappearance was by his own contrivance. In the case at bar, however, we hold that the only logical conclusion from the proofs is that Bencel's disappearance (and that of his companions) was the result of the perilous circumstances to which they undoubtedly were exposed by the destruction of the boat at sea, and that their deaths ensued by reason thereof.
Interpreting Zwiebel, the trial court in the case at bar said that the opinion "rejected the doctrine of the special peril * * * so that the only thing left in this State is actual death, certification under the federal act [not here involved] * * * and seven years absence." We find nothing in Zwiebel which specifically so states. As above noted, Zwiebel was not a "special peril" case. Neither counsel therein nor the court so considered it (at pp. 38-39), and any comment in that case referable to the "special peril doctrine" must be considered dictum.
In Lukens v. Camden Trust Company, 2 N.J. Super. 214 (Ch. Div. 1948), a case which did involve the "special peril doctrine," Judge Berry said:
"As already stated, counsel for Sarah Showaker contends that Captain Beneke must be presumed to be still alive because the seven year period fixed by the statute has not elapsed, and he contends that the so-called `special peril' doctrine has not been recognized in this State. In this contention I feel that he is in error. I have already quoted the language of Chancellor Green in Clarke's Ex'rs v. Canfield, supra [15 N.J. Eq. 119], to the effect that there may be circumstances creating a presumption in fact of the death of an absent party within the seven year period. That, in my judgment, is a recognition of the `special peril' doctrine, and that was as early as 1862. That doctrine was not then disapproved, nor, so far as my research discloses, has it even been disapproved by any New Jersey court. On the contrary, in In re Sternkopf's Will, 1906, 72 N.J. Eq. 356, at p. 359, 65 A. 177, 178, Chancellor Magie, sitting as Ordinary, said:
`While it is true that, upon proof of the existence of a person at a particular time, it must be presumed that he continued to exist thereafter until his death is proved, it has never been conceived that the proof of death must necessarily be direct. Obviously, upon proof *553 of circumstances raising a counter presumption, his death may be found. Thus, if he embarked on a vessel which was never afterward heard from, or which was proved to have been shipwrecked, at least under circumstances indicating the loss of all on board, there would be a question, after a reasonable time had elapsed, during which he had not been heard from, whether the presumption of the continuance of his life had not been overcome by the counter presumption of his death in the shipwreck.' (Italics mine.)
While in that case it was not necessary to apply the `special peril' doctrine, because of a lapse of more than seven years, it is nevertheless a recognition, and, it seems to me, an approval of that doctrine." (Lukens, supra, at pp. 227-8)
We are in accord with the aforesaid holding and deem the principle therein enunciated applicable to the case at bar. We are not in accord with the trial court's "conclusion" in the instant case that in this State "there must be a seven years absence after diligent inquiry before there may be a presumption of death."
Moreover, we are of the opinion that the evidence adduced in the instant case and the legitimate inferences to be drawn therefrom, warrant a presumption that Bencel is dead. We disagree with the trial court's above-quoted holding that "actual death in this State means that somebody has seen the person that has died and has identified him." No such limited definition is acceptable. Circumstantial evidence, from which the fact of death may legitimately be inferred, will suffice. We find such evidence here present. Cf. Jochim v. Montrose Chemical Co., 3 N.J. 5, 8 (1949); Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 274-275 (1958); and Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127, 139-140 (1958).
The judgment of the County Court is reversed. The presumptive death of Joseph A. Bencel is hereby declared to have occurred as of July 19, 1961. No costs are allowed on this appeal.
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742 S.W.2d 743 (1987)
Ex parte Carlos Alberto BONILLA.
No. 01-87-00833-CR.
Court of Appeals of Texas, Houston (1st Dist.).
November 19, 1987.
*744 Jerry Patchen, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., Houston, for appellee.
OPINION
LEVY, Justice.
This is an appeal from a denial of habeas corpus relief. Appellant was indicted for the offense of delivery of a controlled substance, and bail was set at $250,000.
Following a hearing on appellant's habeas corpus, the trial court set bond at one million dollars.
In his application for a writ of habeas corpus, the appellant alleged that the trial court erred in refusing to set a reasonable bail, in violation of the United States and Texas Constitutions.
The guidelines for setting bail are set out in Tex.Code Crim.P.Ann. art. 17.15 (Vernon Supp.1987). In pertinent part it states:
The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense may be considered.
The burden is on the appellant to show that the bail set is excessive. Ex parte Charlesworth, 600 S.W.2d 316 (Tex.Crim. App.1980). Although the ability or inability of an accused to make bail is a factor to be considered, ability alone, even indigency, does not control in determining the amount of bail. Tonjes v. State, 627 S.W.2d 814 (Tex.App.Tyler 1982, no pet.).
The primary purpose of an appearance bond is to secure the presence of the defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477 (Tex.Crim.App. 1977). The fact that a person is not a United States citizen is a factor to be considered. See Ex parte Rodriguez, 595 S.W.2d 549 (Tex.Crim.App.1980). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail cannot be used as an instrument of oppression. Ex parte Ivey, 594 S.W.2d 98 (Tex.Crim.App.1980). When bail is used in lieu of punishment, it becomes excessive in the constitutional sense. Cohen v. United States, 82 S. Ct. 526, 7 L. Ed. 2d 518 (1962).
At the hearing, Fernando Villasana, an undercover Harris County police officer assigned to the narcotics division, testified that on September 2, 1987, he and his partner, Officer Kay Montalvo, met the appellant and his co-defendant, Felipe, at a designated location. He stated that he was supposed to give the appellant $130,000 cash in exchange for "5 kilos" of cocaine. After Villasana showed the $130,000 to Felipe, the appellant drove Villasana to another location where a vehicle was parked. The appellant opened the trunk of the vehicle and removed a grocery bag containing over 5,000 grams of cocaine. He handed the bag to Villasana, and, after inspecting the cocaine, Villasana placed the bag back into the trunk. The men drove back to the location where co-defendant Felipe and Officer Montalvo were waiting. Once they arrived, the appellant was arrested. Villasana *745 estimated the "street value" of the cocaine to be approximately $500,000.
The 26-year-old appellant testified that he is a citizen of Columbia. He came to the United States in December, 1985, to pursue his studies. He had 14 years of education, and has lived in Houston for 19 months. He took English courses at Pasadena High School, and attempted to register at Houston Community College but was not permitted to do so because he was "illegal" and did not "have sufficient requirements." When he first came to Houston, he worked at Burger King. Since July, 1986, he has been working at American Gear and United Valve Supply, Inc. From July, 1986, until August, 1987, he earned approximately $7,000. He stated that he had approximately $1,000 available to make bail, and that his only asset consisted of a Camaro, valued at $750. He has never been convicted of an offense in the United States. Since June, 1987, he has leased an apartment with his girlfriend at $235 per month.
The unlawful delivery of 400 grams or more of cocaine is a felony of the first degree. Tex.Ann.Rev.Civ.St. art. 4476-15 (Vernon Supp.1987). If convicted, appellant would be subject to punishment by confinement in the Texas Department of Corrections for life or any term of not more than 99 years or less than 15 years. In addition to imprisonment, he may be punished by a fine not to exceed $250,000.
Balancing the factors of petitioner's financial condition, and lack of a criminal record against evidence showing his poor family and community ties, the nature and circumstances surrounding the offense, and the potential punishment that could be assessed, we conclude that the bail set is excessive. We vacate the order appealed from the trial court and reduce the bail to $250,000.
It is so ORDERED.
JACK SMITH and HOYT, JJ., also participating.
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231 Md. 618 (1963)
189 A.2d 644
SIMMONS
v.
DIRECTOR OF PATUXENT INSTITUTION
[App. No. 72, September Term, 1962.]
Court of Appeals of Maryland.
Decided April 4, 1963.
Before the full Court.
*619 SYBERT, J., delivered the opinion of the Court.
On March 19, 1958, Wilfred C. Simmons, the applicant, pleaded guilty before Chief Judge Harris in the Circuit Court for Allegany County to a charge of maiming a woman and was sentenced to serve five years in the Maryland House of Correction. In later proceedings the trial judge characterized the maiming as sadistic and as one of the most cruel and unwarranted attacks that had come to his attention. The applicant was transferred later to Patuxent Institution for examination, and, after a hearing in the Circuit Court for Allegany County, he was on April 10, 1959, found to be a defective delinquent and was committed to Patuxent Institution, under the provisions of Code (1957), Art. 31B, Sec. 9 (b). A petition for redetermination of his status as a defective delinquent was filed in the above named court and on May 4, 1962, after a hearing before Chief Judge Harris, the applicant was recommitted to Patuxent Institution. The applicant thereupon filed an application for leave to appeal to this Court on the ground that the Circuit Court in connection with the recommitment made no finding as to whether applicant was or was not a defective delinquent. In a per curiam opinion filed on October 9, 1962 we remanded the case for further proceedings "to the end that the lower court may decide whether or not the applicant was a defective delinquent at the time of the hearing." Simmons v. Director, 229 Md. 638, 184 A.2d 622 (1962).
At a hearing held on December 20, 1962 before Chief Judge Harris, at which further testimony, in addition to that adduced at the hearing on May 4, 1962, was heard, it was held that the applicant was still a defective delinquent and he was recommitted to the Patuxent Institution for further study and treatment.
In this application for leave to appeal, applicant contends that "while there may have been ample evidence of emotional unbalance" adduced at his hearings, there was a lack of evidence that during his confinement in Patuxent Institution he had exhibited any persistent aggravated antisocial or criminal behavior evidencing a propensity toward criminal activity, and that therefore he could not now be held to be a defective delinquent *620 as defined in Code (1962 Cum. Supp.), Art. 31B, Sec. 5. Applicant claims that the lower court's decision on redetermination was based on, or influenced by, the nature of the original crime committed by him, and not solely upon proof as to his present status.
Article 31B, Sec. 5, reads as follows:
"For the purposes of this article, a defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment."
Section 9 (b) of Art. 31B provides that if the court finds the defendant to be a defective delinquent as defined in Sec. 5, it shall order him committed to the institution for an indeterminate period. Section 10 (a) permits the filing, after the lapse of a period therein mentioned, of a petition "for the purpose of having the defective delinquency of such person redetermined" by a jury, if requested, or by the court. Section 10 (a) provides no criteria to govern the redetermination (other than those set out in Sec. 5).
At the hearings to redetermine the status of the applicant, the lower court had before it reports of Dr. Boslow, the Director of Patuxent and a qualified psychiatrist, Dr. Kohlmeyer, a qualified staff psychiatrist, Dr. Manne, a qualified staff psychologist, and Dr. Trevaskis, a qualified psychiatrist who had examined the applicant, at the latter's request, prior to the original commitment and prior to each of the redetermination hearings. Drs. Boslow and Trevaskis testified. While all of them agreed that the applicant had made some progress in his adjustment, the staff members reported that he was still a defective delinquent and that it would not be safe to release him into society. Dr. Trevaskis disagreed. While his report states that he could find no reason to change his original diagnosis *621 of "sociopathic personality disturbance and associated chronic alcoholism", it points out that the applicant had an outstanding record at Patuxent, and concludes that maximum institutional benefit has been achieved and that "this man ought to be a fair risk to release into society".
On the other hand, Dr. Kohlmeyer, who prepared a report for Patuxent's Board of Review, wrote:
"Simmons has been in group therapy with me since September 1961. * * * He has some rather vague notions about the emotional trends leading to his present crime but when pressed on the subject he becomes anxious and confused. He is a self-centered and schizoid individual who communicates very little with others. From occasional remarks one can gather that he is still quite involved in sexual fantasies and has considerable conflict in this field. He has some notion of the role which alcohol has played in disintegrating his defenses, but on the other hand is not convinced that he can give up drinking altogether if released to society.
"Simmons has made a very good institutional adjustment but the staff of the institution feels that this has to stand the test of time. He is still classified as a defective delinquent. No change in his status is recommended at the present time."
Dr. Manne, the staff psychologist, came to substantially the same conclusion. His report states, in part:
"The patient seems to indicate that he has his feelings under somewhat better control than he had before, but this control seems largely intellectual. He still has a poor self-concept, and his relationships with authority seem to be quite disturbing. He displays anxiety in his relationships with authority, and in his perception of male and female sexuality. When in an anxiety provoking situation, or one which rouses his emotions, the patient indicates that he can respond with aggressive feelings. He also seems to indicate *622 that he perceives the male sexual role as being a highly aggressive role.
"The patient still appears to indicate a low frustration tolerance, and the capacity to act-out on aggressive impulses when in interpersonal situations. His poor self-concept, which has been bolstered somewhat during his stay at this Institution, still exists. It is the Examiner's feeling that this patient is still an inadequate individual who can respond with aggressive outbursts when he finds himself in interpersonal situations."
It was Dr. Manne's conclusion that the improvement made has not as yet reached the point where it would be safe to permit the applicant to enter society unless there were extremely close supervision. He concludes, "if he were placed in an unstructured environment, such as society, he would probably continue to act-out unconscious aggressive sexual drives".
Finally, Dr. Boslow, in his Interval Notes of November 8, 1962 and December 18, 1962, in concurrence with the conclusion reached by the others, felt that "it would be extremely inadvisable to release * * * [the applicant] from the institution * * * [as h]e is still considered to be a defective delinquent." In his opinion, at the time of the November 8, 1962 examination, the applicant was very close to a psychotic episode. The applicant, 41 years of age, was found to have an I.Q. of 104, indicating average intelligence. Based upon the findings and recommendations of the institution's trained specialists, the lower court recommitted the applicant to Patuxent as a defective delinquent.
No application for leave to appeal from the original commitment in 1959 of the applicant as a defective delinquent was ever filed, nor is that commitment challenged now. It was based upon the crime committed by the applicant, coupled with a finding that he exhibited such emotional unbalance as to clearly demonstrate an actual danger to society. However, in the present application the applicant, while virtually conceding the sufficiency of the evidence produced at his hearings to show continuing emotional unbalance, contends that he should now be released *623 from Patuxent on the ground that the evidence fails to show that during his confinement there he demonstrated persistent aggravated antisocial or criminal behavior, evidencing a propensity toward criminal activity. He maintains that in the absence of such a showing, even in redetermination proceedings, the person involved cannot be held to be a defective delinquent under the definition set out in Sec. 5. He also argues that the lower court was not entitled to consider the nature of his original offense in determining whether or not he still is a defective delinquent.
We think that the questions raised have already been answered by this Court in Schultz v. Director, 227 Md. 666, 177 A.2d 848 (1962). In that case, which involved a request for redetermination of the status of an inmate of Patuxent, the inmate asserted that the lower court had erred in refusing an instruction to the effect that the jury could only consider the fact of his original conviction, and not the nature of the crime, on the issue of whether or not the defendant was still a defective delinquent. In finding no error, Judge Henderson said for the Court (at p. 668 of 227 Md.):
"* * * The jury was entitled to consider the nature of his previous offense in order to determine whether he had demonstrated persistent, aggravated, antisocial or criminal behavior, so as to demonstrate an actual danger to society. In that connection they were entitled to consider the nature of the crime, and not merely the fact of conviction. * * *"
In the same case, the inmate also claimed error in the refusal of an instruction that the jury should disregard the fact that the inmate had formerly been adjudicated a defective delinquent. We said (ibid.):
"* * * Again we find no error. The case could not be tried in a vacuum. The fact of the prior adjudication was relevant and a part of the past history upon which the experts, and ultimately the jury, were called upon to pass."
*624 See also Queen v. Director, 226 Md. 664, 174 A.2d 351 (1961), a redetermination case, in which an inmate contended that he was placed in double jeopardy because the "recommitment was based on evidence of his past record, which was used on the original commitment." We said (at p. 665 of 226 Md.): "There is no merit in the contention. See Eggleston v. State, 209 Md. 504, 513. Antecedent behavior is a relevant inquiry, and violates no Constitutional rights."
The cases cited recognize that in redetermination proceedings the inmate's propensity toward criminal activity, as manifested through persistent aggravated antisocial or criminal behavior, has been established by his initial commitment to Patuxent, and that the overriding consideration is whether it is "reasonably safe for society to terminate the confinement and treatment". In such cases the propensity toward criminal activity is part of the past history of the inmate. We cannot suppose that the Legislature intended the anomalous and dangerous result contended for by the applicant here that an inmate who had committed a serious crime induced by such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society, must be released if he does not exhibit overt and aggravated antisocial or criminal behavior in Patuxent Institution, even though his dangerous intellectual deficiency or emotional unbalance persists. The answer is given in Eggleston v. State, supra, where we reviewed the history and purpose of the Defective Delinquent Law at length, and observed (at p. 515 of 209 Md.): "The extent of detention depends primarily in each case upon medical findings as to diagnosis and prognosis, not upon a finding of the elements of a criminal offense. * * * The detention is not by way of punishment for a crime, but is preventive and therapeutic."
The lower court was entitled to consider the nature of the applicant's original offense and the fact of his prior adjudication, as we have noted, and to rely upon the expert findings and conclusions of the professional personnel at Patuxent, which are to be accorded very serious consideration. Palmer v. State, 215 Md. 142, 152, 137 A.2d 119 (1957). We cannot find that the court was clearly wrong in ordering the recommitment.
Application denied.
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Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied.
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200 Pa. Super. 614 (1963)
Commonwealth
v.
Henig, Appellant.
Superior Court of Pennsylvania.
Argued March 18, 1963.
April 18, 1963.
*615 Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
*616 Geneva M. Henig, appellant, in propria persona.
Paul R. Sand, Assistant District Attorney, for Commonwealth, appellee.
OPINION BY MONTGOMERY, J., April 18, 1963:
This is an appeal taken by Geneva M. Henig, the natural parent of Aileen Henig, from an order affirming a previous order which committed the said Aileen Henig to the Wallingford Home of the Orphans' Society of Philadelphia, and placing her there in their custody as a ward of the Juvenile Court of Delaware County.
The case resulted from the taking into custody of Aileen Henig, a twelve year old girl, who was apprehended on March 22, 1962, by the Radnor Township police while in Woolworth's department store located in Wayne, Pennsylvania. The child was caught in the act of shoplifting two pairs of nylon stockings valued at seventy-nine cents a pair, three comic books valued at fifteen cents each, and one comb valued at twenty-nine cents, from a counter in this department store. The total value of the articles was $2.32.
Although the child actually committed a crime, since she had no previous record of a violation of the law the normal disposition of this matter would have resulted in the return of this child to the custody of her parents without probationary supervision. Because of *617 the parents' failure to cooperate with the court and the juvenile staff, the lower court felt that a period of detention was necessary in order to more thoroughly evaluate the situation. It was therefore ordered on March 23, 1962, that the staff make an investigation, the case to be returned to court if the family did not cooperate. Two months later another hearing was held before the Honorable WILLIAM R. TOAL, as a result of which it was determined to hold Aileen in detention for further study because the mother not only refused to cooperate, but actively endeavored to obstruct the course of the investigation. She made appointments with the juvenile authorities to discuss Aileen and then either cancelled these appointments or failed to show up. Her attitude was that her child was guilty of no wrongdoing, the police were not telling the truth, and that the child need not answer any questions directed to her by the staff or court psychologist and court psychiatrist.
On July 13, 1962, another hearing was held which developed the fact that from June first until the hearing neither Mr. or Mrs. Henig made any effort to see or visit with Aileen in the detention home although Mrs. Henig had been repeatedly requested by the staff to do so.
At the hearing the court found Aileen to be delinquent, and decided that it was best for the welfare of the child that she be committed to the Wallingford Home of the Orphans' Society of Philadelphia for such time as was necessary in the opinion of the Juvenile Court staff and the authorities of the home; that she remain there in custodial care; and that she be declared a ward of the court.
On August 1, 1962, the Henigs petitioned the court for a rehearing which was held September 7, 1962, at which the lower court ruled that the adjudication in the case was final. This ruling of the lower court has *618 now been appealed to this Court on the ground that the court below violated the constitutional rights of the juvenile by finding her delinquent and committing her to a custodial institution.
A petition for a writ of habeas corpus was also filed with the Superior Court which was denied per curiam February 18, 1963.
On January 25, 1963, another hearing was held by the Juvenile Court, Judge TOAL presiding, at which time it appeared that the staff of the Wallingford Home were of the opinion that Aileen had reached a point where further help from that institution was not indicated and that additional progress would depend upon association with her family and their participation in her life.
Under these circumstances, and in view of the excellent progress which Aileen had shown at the home, the court decided that further custodial care was not necessary and, accordingly, directed that Aileen be discharged from the custody and care of the Wallingford Home and returned to the custody of her parents. The court ordered her discharge effective the same day and further ordered that the existing support order entered against the parents be thereby cancelled, together with all arrearages.
The appellant contends that the actions of the lower court in this matter have violated her right under the Constitutions of the United States and the Commonwealth of Pennsylvania to a fair trial, in that she was deprived of liberty without due process of law; in that the judge sitting in the lower court was biased and prejudiced; in that she was not informed of every charge against her nor was she given an opportunity to refute them in open court; in that she was not permitted to be present during all courtroom proceedings; in that she was not permitted to cross-examine witnesses; in that she was not permitted to be a witness *619 for herself or to have a public trial or to have a jury trial; in that she was not permitted bail, and was held in involuntary servitude; and in that she was not at liberty to be with her family free from the "persecution of public officials". She further contends that the proceedings in the Juvenile Court of Delaware County were contrary to the standards of impartial justice and unconstitutional.
After a thorough review of the record, we can find no merit in any of these contentions. The hearings held by the Court of Quarter Sessions of Delaware County were conducted completely in accordance with the requirements specified in the Juvenile Court Law. Act of June 2, 1933, P.L. 1433, 11 P.S. 243 et seq., as amended. The constitutionality of the procedures in Juvenile Court was tested under the prior act (Act of April 23, 1903, P.L. 274) in Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198, wherein the Court held that to save a child from becoming a criminal, or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, the legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state's guardianship and protection.
The Juvenile Court proceedings are not criminal in nature but constitute merely a civil inquiry or action looking to the treatment, reformation, and rehabilitation of the minor child, and, therefore, many of the constitutional guarantees afforded to a criminal defendant are not available and not necessary. Holmes Appeal, 175 Pa. Super. 137, 103 A.2d 454, affirmed 379 Pa. 599, 109 A.2d 523; Mont Appeal, 175 Pa. Super. 150, 103 A.2d 460.
In the present case there was clearly sufficient direct evidence to warrant the adjudication by the lower *620 court that Aileen Henig was a delinquent under the law, viz., the testimony of the Radnor Township police officer who had observed Aileen in the store, and after waiting for her at the store's exit accompanied her to the office whereupon examination of her clothes and parcels disclosed the stolen articles. As a result of her having committed this crime amounting to petty larceny, she was properly within the jurisdiction of the Juvenile Court. The lower court acted correctly and with due regard to the requirements of the Juvenile Court Law, and its determination that the best interests and welfare of the child required the committing of the juvenile to a noncorrectional institution is well within its discretion. From our review of the record we conclude that the actions of the lower court have proved beneficial to the child in spite of the lack of any assistance on the part of the child's parents.
Order affirmed.
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742 S.W.2d 533 (1987)
Jewell ELLSWORTH, Appellant,
v.
BISHOP JEWELRY AND LOAN COMPANY, Appellee.
No. 05-87-00065-CV.
Court of Appeals of Texas, Dallas.
December 18, 1987.
Rehearing Denied January 18, 1988.
Darrell Panethiere, Linda Turley, Mark Tobey, Dallas, for appellant.
Don Martinson, Todd T. Wong, Dallas, for appellee.
Before WHITHAM, McCLUNG and STEWART, JJ.
McCLUNG, Justice.
Jewell Ellsworth appeals from a take-nothing judgment rendered in a negligence action brought against Bishop Jewelry and *534 Loan Company. Ellsworth brings forward eight points of error. We affirm.
On July 10, 1983, Mrs. Ellsworth was wounded and her husband killed when her younger brother, P.Q. Brown, shot them with a pistol he had purchased from Bishop three days earlier. Ellsworth brought suit against Bishop on a negligence per se theory, alleging violations of federal law in the sale of the pistol to Brown. Ellsworth's initial petition also contained a cause of action alleging Bishop's retail sale of handguns constituted an abnormally dangerous and ultra hazardous activity so as to subject Bishop to strict liability under The Restatement (Second) of Torts, §§ 519, 520 (1977). The trial court struck this claim, holding that the claim did not state a cause of action under Texas law. Trial was had before a jury on Ellsworth's negligence per se cause of action. The jury found no negligence on the part of Bishop, and a take nothing-judgment was accordingly entered. This appeal followed.
By her first four points of error, Ellsworth alleges that the trial court erred in overruling her objection to the testimony of an unannounced expert witness called by Bishop. We disagree.
To fully understand the issues involved in these points of error, some background information is necessary. Ellsworth, in response to Bishop's written interrogatories, identified only one individual, Dr. Michael Murray, as a medical expert witness. Ellsworth stated that Dr. Murray would testify regarding "the psychological effect of the incident suffered by Mrs. Ellsworth." At trial, Dr. Murray testified not only to "the psychological effect of the incident suffered by Mrs. Ellsworth", but also as to how a schizophrenic individual (Brown) would appear to others he interacted with, even though Dr. Murray had never examined Brown. This testimony went to the main issue in the case, that is: did Bishop know or should he have known that Brown was emotionally unstable and had been committed to a mental institution?
Following Dr. Murray's testimony, Bishop requested the court to allow them to call Dr. Myron Weiner as a witness to respond to Dr. Murray's testimony concerning the likely appearance of Brown. Dr. Weiner had previously examined Brown. Following a bench conference, the trial court allowed Dr. Weiner to testify. Dr. Weiner was not listed as an expert witness that Bishop intended to call in their original answer or any supplemental answers to Ellsworth's interrogatories. Consequently, Dr. Weiner should not have been allowed to testify, over objection, absent a showing of good cause. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). Under the circumstances in this case, however, we see no abuse of discretion in the trial court's implicit finding of good cause and allowing Dr. Weiner's testimony. Bishop could not have known that Dr. Weiner's testimony was needed because Bishop could not have known that Ellsworth would elicit testimony from Dr. Murray concerning Brown's appearance to others. It was this surprise testimony that necessitated Dr. Weiner's testimony. Consequently, we hold that the trial court properly allowed Dr. Weiner's testimony responding to Dr. Murray's surprise testimony. See Gannett v. Kubeczka, 710 S.W.2d 79, 83-85 (Tex.App.Houston [14th Dist.] 1986, no writ). Appellants points of error one through four are overruled.
In Ellsworth's fifth point of error she asserts that the trial court erred in submitting special issue number nine because it failed to shift the burden of proof to Bishop to prove that Bishop did not know or had no reasonable cause to know that Brown had been committed to a mental institution. Ellsworth correctly asserts that once a plaintiff has made out a prima facie showing that a statute has been violated, the burden of coming forward with evidence to show excuse under the statute shifts to the defendant. See Impson v. Structural Metals Inc., 487 S.W.2d 694 (Tex.1972). Ellsworth did not make out a prima facie showing of a violation of a statute; consequently, Impson is inapplicable.
The statute Bishop was alleged to have violated was 18 U.S.C. § 922(d).
18 U.S.C. § 922(d) states:
*535 (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
(4) has been adjudicated as a mental defective or has been committed to any mental institution.
Special issue No. 9 stated:
Do you find that when Bishop sold the pistol to Brown, Bishop knew or had reasonable cause to believe that Brown was a person who had been committed to a mental institution?
Answer "yes" or "no".
ANSWER: NO
It is apparent that for Ellsworth to make out a prima facie case showing Bishop violated the statute Ellsworth must have shown that Bishop sold a firearm to a person who had been committed to a mental institution and that Bishop knew or had reasonable cause to believe that the person had been committed to a mental institution. It was Ellsworth's burden to prove both of these elements. Only after having proven both of these elements would a violation of the statute have been shown and the burden shift to Bishop to come forward with evidence showing some excuse for violating the statute. Consequently, the trial court's submission of Special Issue No. 9 was proper. See Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 89-91 (1954). Ellsworth's fifth point of error is overruled.
In Ellsworth's sixth and seventh points of error she maintains that the jury's findings that Bishop did not know or have reasonable cause to believe that Brown was emotionally unstable and had been committed to a mental institution was against the great weight and preponderance of the evidence. Since Ellsworth had the burden of proof on those issues the jury's negative answers need not be supported by affirmative evidence. Missouri Pacific R. Co. v. Lane, 720 S.W.2d 830, 834 (Tex.App.Texarkana 1986, no writ); Tatum v. Huddleson, 711 S.W.2d 367, 369 (Tex.App.Texarkana 1986, no writ). Nevertheless, Ellsworth may successfully challenge the jury's answers if either the facts were established as a matter of law, or the jury's failure to find those facts is against the great weight and preponderance of the evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); Tatum, 711 S.W.2d at 369.
In reviewing a great weight and preponderance point we must consider and weigh all of the evidence to determine if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Missouri Pacific R. Co., 720 S.W.2d at 834; Fortner v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 687 S.W.2d 8, 12 (Tex. App.Dallas 1984, writ ref'd n.r.e.). We may not substitute our judgment for the trier of fact and where there is conflicting evidence the jury's decision will be left undisturbed. Horvath v. Baylor University Medical Center, 704 S.W.2d 866, 869-70 (Tex.App.Dallas 1985, no writ); Martin v. United States Trust Company of New York, 690 S.W.2d 300, 306 (Tex.App.Dallas 1985, writ ref'd n.r.e.). The issues mentioned above were hotly contested with conflicting evidence presented by expert and lay witnesses alike. We have reviewed the record in this case and we cannot conclude that the jury findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. Ellsworth's points of error six and seven are overruled.
Ellsworth's eighth and final point of error alleges the trial court erred in dismissing his ultrahazardous activity claim for failing to state a cause of action. This court held in Robertson v. Grogan Investment Co., 710 S.W.2d 678 (Tex.App.Dallas *536 1986, no writ), that we would not adopt the proposition that "the manufacture or sale of a handgun is an ultrahazardous activity giving rise to strict liability ..." under sections 519 and 520 of the Restatement of Torts. We concluded that the recognition of a new cause of action is a task best left to the legislature or our Supreme Court. Ellsworth attempts to distinguish Robertson by saying that in Robertson there was no allegation that the handgun was defective, that it malfunctioned, or that the sale was illegal or negligent whereas here the petition did allege such facts. This is a distinction without substance. The portion of Ellsworth's petition that was stricken by the trial court read:
ORDERED, ADJUDGED and DECREED that the special exception made by Defendants be, and is hereby sustained, and the following language is hereby stricken from Plaintiff's petition:
Defendants chose to engage in the retail sale of firearms, including the Raven Arms pistol in question. The sale of handguns, such as the Raven Arms pistol in question, to the general public, is an abnormally dangerous and ultrahazardous activity. Defendants having chosen to engage in this abnormally dangerous and ultrahazardous activity are subject to strict liability for the harm resulting from their activities. Defendants are strictly liable to Plaintiff for her damages resulting from selling the Raven Arms .25 automatic pistol to David Lewis Brown, that Mr. Brown used to injure Jewell Ellsworth and Elmer E. Ellsworth and to cause Mr. Ellsworth's subsequent death.
It is clear that this allegation is the same as the allegation in Robertson. We reiterate our belief that the recognition of a new cause of action is a task best left to the legislature or our Supreme Court. Ellsworth's eighth point of error is overruled.
The judgment is affirmed.
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201 F. Supp. 930 (1962)
Freeman M. MILLER, Administrator of the Estate of Clesson Stewart,
v.
STATE OF VERMONT and Michael J. Griffin.
Civ. A. No. 3318.
United States District Court D. Vermont.
January 11, 1962.
*931 Finn & Davis, Barre, Vt., for plaintiff.
Thomas M. Debevoise, for State of Vermont.
Ryan, Smith & Carbine, Rutland, Vt., for defendant Michael J. Griffin.
GIBSON, District Judge.
This is an action brought by a citizen of the State of Florida for recovery of damages suffered as a result of the claimed negligence of the Defendants. The Defendant, State of Vermont, has moved for the dismissal of the suit on the ground that it falls within the prohibition of the 11th Amendment of the Constitution of the United States. The Plaintiff argues that the State of Vermont should not be dismissed as a Defendant because:
1. The State of Vermont is not the real party in interest in this proceeding, and
2. The State of Vermont, by its statutory waiver of sovereign immunity in 29 V.S.A. § 1403, consented to a suit in a federal court otherwise prohibited by the Constitution of the United States.
*932 This Court finds, after hearing and upon consideration, that the State is the real party in interest and that there was no waiver.
The relevant statutory provisions are found in Title 29 V.S.A. §§ 1401-1406. Section 1401 commands the purchasing director to purchase insurance coverage for the benefit of the state and its employees while performing official duties. The policies are to be made payable to the state. Section 1403 provides:
"When the state or a department or board purchases a policy of liability insurance under the provisions of section 1401 of this title, * * * it waives its sovereign immunity from liability to the extent of * * * the policy and consents to be sued."
Section 1404 provides that a judgment for more than maximum insurance coverage shall not be rendered against the state in a proceeding provided for in Section 1403.
Section 1406 provides that the governor, treasurer or auditor of the state may contract to insure state employees against personal liability in civil actions arising from the performance of their duties and while engaged within the scope of their employment. Again sovereign immunity is waived to the extent of insurance coverage.
I.
The Plaintiff contends that the above provisions of the Vermont Statutes create a fund other than a public fund from which assessed damages are to come, and that only the insurer, not the state, is bound by the liability creating acts of state employees. Plaintiff contends that the insurer, not the state, is the real party in interest, and therefore this action is not one against the state and consequently does not fall within the prohibition of the 11th amendment.
The settled rule of the Supreme Court of the United States is that "whether a suit is within the prohibition of the eleventh amendment is not always determined by reference to the nominal parties on the record." In re Ayers, 123 U.S. 443, 487, 8 S. Ct. 164, 173, 31 L. Ed. 216 (1887). And in Illinois Central R. R. Co. v. Adams, 180 U.S. 28, 37, 21 S. Ct. 251, 45 L. Ed. 410 (1901), the Supreme Court, in considering the same matter, stated that it is a question best to be considered on the merits and, "If it were a suit directly against the State by name, it would be so palpably in violation of that amendment (11th) that the court would probably be justified in dismissing it upon motion; * * *." See also Scully v. Bird, 209 U.S. 481, 28 S. Ct. 597, 52 L. Ed. 899 (1908).
However, assuming this Court should not be content with the rule so stated in determining this question, it can look behind the fact that the State of Vermont is ostensibly an interested party. One test is whether the state is made responsible in some way by the proceeding. State of Missouri v. Homestead Life Ass'n, 16 F. Supp. 69 (D.C. Mo., 1936), affirmed 90 F.2d 543 (CA 8th Cir., 1937), Cert. den. 302 U.S. 717, 58 S. Ct. 37, 82 L. Ed. 553 (1937); Cf. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 687, 688, 69 S. Ct. 1457, 93 L. Ed. 1628 (1948). The Plaintiff has cited the case of Linger v. Pennsylvania Turnpike Commission, 158 F. Supp. 900 (D.C.Pa., 1958) in support of its contention that here the insurance company is the real party in interest. But the situation in the case at hand, clearly, is to be distinguished from the Linger case because that case turned on the fact that the Turnpike Commission, which was the named party in the action, was created by the state of Pennsylvania to function as the controlling operator of the Pennsylvania Turnpike. The Commission was an entirely separate entity in all managerial, functional and financial matters. It was determined that the state of Pennsylvania was not the real party in interest, and the Commission may be liable for negligence in the operation of the turnpike. In the present case, no such independent agency of the State of Vermont is created. The State *933 merely buys insurance like any private citizen, and then to that extent consents to suit for acts of its servants. The State of Vermont is the named defendant and is made responsible in an action brought under the insurance provisions. The relief obtained is against the state. The fact that an insurance company is the real source of the funds available to injured persons in no way involves the insurer as a real party in interest. This Court so holds.
II.
Moving to the second question, it appears there are no decisions of the Vermont Supreme Court interpreting the relevant Vermont statutory provisions. The state unquestionably has consented to be sued. The Defendant makes no contention to the contrary. The sole question here is whether the consent to suit as expressed also waives the 11th Amendment prohibition against suit in a federal court. This Court feels bound by the widely accepted rule that a state's consent to suit in its own courts is not a waiver of the 11th Amendment privilege, and that consent by a state to suit in a federal court must be by express legislative authority and in clear and express language. Chicago R. I. & P. R. Co. v. Long, 181 F.2d 295 (CA 8th Cir., 1950), Cf. Smith v. Reeves, 178 U.S. 436, 440, 20 S. Ct. 919, 44 L. Ed. 1140 (1900); Chandler v. Dix, 194 U.S. 590, 24 S. Ct. 766, 48 L. Ed. 1129 (1904). In taxation cases, this rule has been most explicitly based on the reason that the state's own courts should hear tax litigation because of the impact on the state's finances. Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 66 S. Ct. 745, 90 L. Ed. 862 (1946). However the rule is by no means limited to tax litigation. Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S. Ct. 458, 53 L. Ed. 742 (1909), was an action for specific performance of a contract, made by the state, to purchase liquor; Chicago R. I. & P. R. Co. v. Long, supra, was an action for declaratory judgment regarding an order of the Iowa State Commerce Commission; Skokomish Indian Tribe v. France, 269 F.2d 555 (CA 9th Cir., 1959), was an action to quiet title to lands; Copper S. S. Co. v. State of Michigan, 194 F.2d 465 (CA 6th Cir., 1952), was a libel against the state for damages resulting from a boat collision.
If the Vermont statute is tested by this rule, it falls short of waiving the 11th Amendment prohibition because there is no clear and express language to this effect.
This Court finds no real interpretative aid from the fact that a tort claims act was passed, to become effective October 1, 1961, providing for exclusive jurisdiction in the state courts over actions against the State of Vermont for negligent or wrongful acts of state employees 12 V.S.A. §§ 5601-5605. The Plaintiff contends this indicates that the Vermont Legislature must have thought that the insurance provisions included waiver of the 11th Amendment immunity. The Defendant contends that the tort claims provision of exclusive state jurisdiction indicates the legislative intent to limit the state insurance provisions to consent to state jurisdiction only. Whichever interpretation is favored, it would not be controlling in this case. This Court considers the rule derived from the cases outlined above as controlling here, and finds no waiver of the 11th Amendment's provision for state immunity in federal courts by the relevant provisions of the Vermont statutes, and so holds.
Concluding that the State of Vermont is the real party in interest, and that it has not waived its immunity to suit in this Court, this Court is without jurisdiction in the matter, and the motion to dismiss the Defendant State of Vermont must be, and is hereby granted.
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742 S.W.2d 545 (1988)
Alexander CRUZ, Appellant,
v.
The STATE of Texas, Appellee.
Fabian VILLARREAL, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 3-87-007-CR, 3-87-008-CR.
Court of Appeals of Texas, Austin.
January 6, 1988.
*546 Melvin Gray, San Angelo, for appellants.
Ronald Sutton, Dist. Atty., Junction, for appellee.
Before SHANNON, C.J., and GAMMAGE and CARROLL, JJ.
GAMMAGE, Justice.
After separate jury trials, Alexander Cruz and Fabian Villarreal were convicted of the offense of indecency with a child. Tex.Pen.Code Ann. § 21.11(a)(1) (Supp. 1988). The respective juries assessed punishment at 20 years confinement and $5000 fine. We review both convictions in this opinion; we affirm both convictions.
In their first point of error, Cruz and Villarreal complain the trial court erred in not granting their motions for new trial because there was a variance between the respective jury charges and the indictment against them. We disagree.
The indictment alleged Cruz and Villarreal engaged in sexual contact with the victim by touching her "genitals and breasts." (emphasis added). The jury charge in the Cruz trial (No. 3-87-007-CR) allowed the jury to convict if it found Cruz touched the victim's "genitals or breasts." (emphasis added). The jury charge in the Villarreal trial (No. 3-87-008-CR) permitted the jury to convict if it found Villarreal only touched the victim's "breasts." Cruz and Villarreal contend they were convicted on less evidence than required by the indictment because the respective jury charges did not require the juries to find *547 Cruz and Villarreal touched the victim's "genitals and breasts."
It is well settled the State may plead its theories of how a crime was committed in the conjunctive and the trial court may charge the jury in the disjunctive. Anderson v. State, 717 S.W.2d 622, 631-32 (Tex.Cr.App.1986); Zanghetti v. State, 618 S.W.2d 383 (Tex.Cr.App.1981). The first point of error is overruled.
In Cruz' third point of error and Villarreal's second, they complain the trial court erred in not granting their motions for new trial on newly-discovered evidence. We disagree.
A motion for new trial based on newly discovered evidence is addressed to the sound discretion of the trial judge and absent a clear abuse of discretion should not be disturbed on appeal. Bolden v. State, 634 S.W.2d 710, 711 (Tex.Cr.App.1982). To show the court abused its discretion, the record must indicate:
(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial.
Eddlemon v. State, 591 S.W.2d 847, 849 (Tex.Cr.App.1980). The evidence Cruz and Villarreal claim to be newly discovered is: a pregnancy exam of the victim; the testimony of Teresa Saiz concerning the victim's flight after the incident; a letter written by the victim to her boyfriend; and a physician's testimony about the victim's stomach disorders.
There is a single statement of facts for both motions for new trial based on newly discovered evidence. After careful review of the record, we find the complaints without merit.
The pregnancy exam was apparently offered at the hearing on the motions for new trial to impeach the victim's testimony she was not promiscuous. The exam was never admitted at that hearing because Cruz and Villarreal could not authenticate it. Cruz and Villarreal have failed to meet part three of the Eddlemon test. Moreover, the exam was offered only for impeachment, a purpose prohibited by the Eddlemon test.
Teresa Saiz' testimony was offered to show the victim did not flee to the Saiz home after the incident. Here, again, this testimony is offered only for impeachment. The record furthermore reflects Saiz is the cousin of Alexander Cruz, and we conclude the trial court was within its discretion to disbelieve this as testimony of an interested witness. A review of the voir dire examination in the Cruz trial (the first of the two trials) also reveals defense counsel (the same lawyer represented both Cruz and Villarreal at trial) knew Teresa Saiz was a potential witness, but did not call her during the original trials.[1]
The victim's letter to her boyfriend was apparently offered at the hearing on the motions for new trial for the impermissible purpose of impeaching the victim's testimony that she was not promiscuous. Moreover, the pertinent part of the letter merely asks the victim's boyfriend whether he likes sex. We conclude this evidence would probably not bring about a different result at a new trial.
Cruz and Villarreal also intended to introduce evidence of the victim's stomach disorders to show there were other reasons why she appeared upset after the incident, but we find no evidence of these alleged disorders in the statement of facts for the hearing on the motions for new trial.
Finally, nowhere in the record do we find an allegation that the failure of Cruz and Villarreal to discover this "new" evidence was not due to lack of diligence on their *548 parts. Cruz' third point of error and Villarreal's second are overruled.
In Cruz' fourth point of error and Villarreal's third, they complain the evidence was insufficient to show they touched[2] the victim with the intent to arouse and gratify their sexual desires. We disagree.
"The requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances." McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Cr.App.1981). When reviewing the sufficiency of the evidence to sustain a criminal conviction, the applicable standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." McGoldrick v. State, 682 S.W.2d 573, 577 (Tex.Cr. App.1985).
The victim (thirteen and hearing impaired at the time of the incident) testified that Cruz and Villarreal entered her parents' home at 7:30 p.m. on November 23, 1985, without permission and while she was alone; that Cruz approached the victim and touched her on the breasts and between the legs; that immediately after the touching Cruz told the victim "Not to tell anybody," and softly slapped the victim on the face; that Villarreal then took the victim by the hand to her bedroom and touched her breasts; that she resisted by kicking him in the stomach and running to the living room where Cruz grabbed her; that she scratched him and fled to a neighbor's home; that one week later Cruz and Villarreal returned to the victim's home, again without permission and while she was alone, and asked her "Did you tell anybody?"
Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could reasonably infer Cruz and Villarreal touched the victim with the intent to arouse their sexual desires. Cruz' fourth and Villarreal's third points of error are overruled.
In the only point of error not common to both Cruz and Villarreal, Cruz' second point, he argues the trial court erred in not granting his motion for new trial because the record on which he appeals is incomplete. We disagree.
During the punishment phase of the Cruz trial, the jury sent a note to the judge asking: "If punishment of 20 years is assessed, how much will actually be served? How will he be able to pay a fine if unable to work? Does he get credit for time served?" The trial court's written response was reviewed by both counsel without objection. The written instruction is not in the record and was apparently destroyed or used by the jury as a ballot. Cruz now contends he must have a new trial because Tex.Code Cr.P.Ann. art. 36.27 (1981) mandates that all communications between judge and jury be part of the record.
The instruction was reconstructed by the trial judge, the presiding juror, and another juror at the motion for new trial. As reconstructed, the note reads: "You are not to discuss or consider the possible actions of the Board of Pardons and Paroles or how long this defendant will be required to serve the punishment you assess. You cannot concern yourself with the manner the defendant will be required to pay any fine you may assess." Defense counsel, saying he could not remember the note's contents, did not dispute this reconstruction.
Article 36.27 mandates all communications with the jury be read in open court and recorded by the court reporter *549 unless expressly waived by the defendant. Although the statute is couched in mandatory terms, in the absence of objection the trial court's actions are presumed consistent with the statute. Smith v. State, 513 S.W.2d 823, 829 (Tex.Cr.App.1974). We conclude Cruz' failure to object to the court's procedures at the time waives any complaint he may have about the record in that connection. Moreover, because Cruz had no objection at the time to the substance of the court's additional charge, we fail to see how he could be harmed by the absence of the original note from the record. Cruz' second point of error is overruled.
We affirm the convictions in cause nos. 3-87-007-CR and 3-87-008-CR.
NOTES
[1] Cruz and Villarreal allege the State "in all likelihood" had an exculpatory statement from Saiz in its files which should have been given to them under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We find no adequate Brady motion in either record, however, and no evidence that such a statement ever existed.
[2] Within these points Cruz and Villarreal argue there was no "touching" because there is no evidence of flesh-to-flesh contact. The record is clear they "touched" the victim while she was fully clothed. However, "the essence of the act of touching is to perceive by the sense of feeling. It is a matter of the commonest (sic) knowledge that the interposition of a layer of fabric between a person's hand and an object upon which the hand is placed will not prevent that person from feeling the object thus concealed." Resnick v. State, 574 S.W.2d 558, 560 (Tex.Cr.App.1978).
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104 N.H. 443 (1963)
STATE
v.
HENRY R. LAVALLEE.
No. 5072.
Supreme Court of New Hampshire.
Argued November 7, 1962.
Submitted February 5, 1963.
Decided March 29, 1963.
*444 William Maynard, Attorney General, Frederic T. Greenhalge, Assistant Attorney General, and Conrad Danais, county attorney (Mr. Greenhalge orally), for the State.
James M. Winston and Peter J. Bourque (Mr. Winston orally), as amici curiae, on behalf of the defendant.
Henry R. Lavallee, pro se.
DUNCAN, J.
The defendant, who was then thirty-six years of age, was arrested on January 13, 1961 at approximately 5:00 P. M., following a complaint that he had assaulted Mrs. Elizabeth Lemire in her fourth floor apartment on Central Street in Manchester. There was evidence that they had been drinking together there. Just prior to the defendant's arrest, Mrs. Lemire sought aid in a neighboring store, and was taken to the hospital by police ambulance. She was suffering from fractures of three ribs on one side and two on the other, and from numerous cuts, bruises and lacerations of the scalp, face, and body. She was forty-five years of age, weighed approximately 135 pounds, and for some time previously had suffered from heart disease for which she *445 had been hospitalized periodically. At 1:10 P. M. on Saturday, January 14, 1961, she expired.
At approximately 8:00 P. M. on January 13, 1961, the defendant was charged with aggravated assault, and on January 14, 1961, following Mrs. Lemire's death, the charge was changed to manslaughter. On Monday morning, January 16, 1961, he was taken before the municipal court of Manchester and bound over to the Hillsborough County Superior Court. He was indicted for manslaughter at the next April term of the Superior Court, and a second indictment for the same offense was returned at the following September term.
In October 1961 the defendant moved to quash the second indictment upon the ground that there was pending another indictment charging him with the same offense. On November 1, 1961 the prior indictment was nol-prossed and the motion to quash the second indictment was thereafter denied. The defendant's motion for an allowance of funds to obtain expert and other witnesses was granted. Original counsel having withdrawn, the Court appointed new counsel to represent the defendant. The trial commenced in the Superior Court on November 28, 1961, following the defendant's plea of not guilty, and continued through December 7, 1961 when a verdict of guilty of manslaughter in the first degree was returned.
Just prior to oral argument in this court the defendant discharged his court-appointed counsel. Since they had prepared and filed a brief on his behalf they were permitted to argue as amici curiae. Thereafter at the defendant's request decision was postponed to permit him to file his own brief after having had an opportunity to review the records and proceedings in this and the Superior Court. In addition thereto this court ordered copies of the briefs of the State and amici curiae and transcripts of all oral arguments in this court to be furnished to the defendant.
The first contention made on behalf of the defendant is that his motion to quash the indictment should have been granted. Apart from the issue of the sufficiency of the evidence which is hereinafter considered, the defendant's contention in support of his exception to the denial of his motion to quash the indictment is grounded upon the pendency of the earlier indictment. While the State might have been compelled to elect which indictment it would proceed upon at the trial (see State v. Nelson, 103 N. H. 478, 485), this issue was disposed of by the nolle prosequi entered *446 by the county attorney. It was clearly within the prerogative of the county attorney to take this action (State v. Smith, 49 N. H. 155, 157; State v. Gratta, 101 N. H. 87, 88) and the question presented by the motion to quash thereupon became moot. No defect in the indictment upon which the defendant was tried has come to our attention, and the exception to denial of the motion to quash is overruled.
A major contention relates to the receipt of evidence of certain oral statements made by the defendant following his arrest, and to receipt in evidence of a written statement covering substantially the same facts, which was given on January 14, 1961 just before the charge of manslaughter was lodged against him. In accordance with usual practice, the witnesses by whom this evidence was presented were first heard by the Trial Court without the presence of the jury. See State v. George, 93 N. H. 408. A finding that the defendant's statements were voluntarily made is implied in the ruling of the Trial Court permitting the jury to hear this evidence. A careful examination of the record discloses no error in its admission.
On behalf of the defendant it is argued, in particular, that the evidence was inadmissible under Mapp v. Ohio, 367 U.S. 643, because the statements were made and the written statement was signed while the defendant was being illegally detained. According to the evidence the defendant was placed under arrest shortly before 5:00 P. M. on January 13, 1961, and at 5:07 P. M. was booked at the Manchester police station for investigation. See RSA 594:2. The same day, prior to 8:45 P. M., he was questioned after being informed of his right to decline to answer and he then informed the police among other things that he had been living with Mrs. Lemire on Central Street since March 1960, and that following an argument on the afternoon of January 13, 1961 he had repeatedly punched her in the face and knocked her down; and that if she had said (as she had) that he had kicked her, "then he did." Between 8:45 and 9:00 P. M. on January 13, 1961 the defendant was charged with aggravated assault. On January 14, 1961, after the police learned in the afternoon of Mrs. Lemire's death earlier that day, the defendant was again questioned by officers that evening. After he was advised of Mrs. Lemire's death, he repeated his earlier account, and his statement, after typing, was signed by him at approximately 9:05 P. M. Although the defendant had been *447 told that he would be charged with manslaughter, it did not conclusively appear whether or not he was "booked" for manslaughter or formally charged therewith on January 14, 1961. On Monday morning, January 16, 1961 he was arraigned before a magistrate on a charge of manslaughter.
RSA 594:23 provides that "every person arrested shall be brought before a magistrate within twenty-four hours from the time of his arrest, Sundays and holidays excepted," unless a justice of the municipal court for good cause shown orders that he be held "for a further period of not exceeding forty-eight hours." See also, RSA 594:20. Since no order for extension of time was obtained, the defendant contends that his detention was illegal, and that evidence of statements made during his detention should therefore have been excluded.
The State maintains that the defendant's detention did not violate RSA ch. 594, in view of the sequence of events. However, the issue need not be determined. As was pointed out in State v. Mihoy, 98 N. H. 38, 42, "failure to comply with [RSA 594:23], without more, is not cause to reverse [a] conviction." As in that case, there is no reason in this one to conclude that the statements made by the defendant were the product of illegal detention, or were anything other than voluntary. Nor does Mapp v. Ohio, supra, relied on by amici require us to come to any different conclusion. In Culombe v. Connecticut, 367 U.S. 568, decided on the same day as the Mapp case, the court reversed a conviction upon the ground that certain confessions had been coerced from the defendant; but as appears from the opinion announcing the judgment of the court in the Culombe case, the rule of McNabb v. United States, 318 U.S. 332 has not been "extended . . . to state prosecutions as a requirement of the Fourteenth Amendment." Id., 600, 601. See also, People v. Lane, 10 N.Y. 2d 347, 352; LaFave, Police Detention, 1962 Washington U. L. Q. 331, 332.
As we understand the rule applied by the United States Supreme Court with reference to proceedings in state courts: "The question in each case is whether a defendant's will was overborne at the time he confessed." Reck v. Pate, 367 U.S. 433, 440. "The ultimate test remains . . . the test of voluntariness." Culombe v. Connecticut, 367 U.S. 568, supra, 602. Only when it appears that statements of an accused are involuntary, because produced by coercion or other circumstances overbearing his will, does use *448 of his statement offend due process. Rogers v. Richmond, 365 U.S. 534; State v. Traub (Conn.), 187 A.2d 230. We conclude that the rule in Mapp v. Ohio, 367 U.S. 643, supra, which bars the use in state courts of evidence obtained by illegal search and seizure does not preclude the use of statements by an accused which were voluntarily made during detention which could be found technically illegal. Cf. Wong Sun v. United States, 83 Sup. Ct. 407 (1963).
Other exceptions taken on the ground of inadmissibility of evidence relate to photographs of the corpse of the deceased; testimony as to statements of the deceased when she first sought aid following the assault, and later, on the way to the hospital; and evidence that the defendant was seen to slap the deceased in the face upon the street two days prior to the later assault which proved to be fatal. We find no error in the rulings admitting the evidence. The photographs served to illustrate a differentiation made by witnesses between injuries suffered in the fatal assault, and bruises of prior origin not attributable thereto. There was evidence that following the assault in question when the deceased made the statements attributed to her by witnesses, she was bleeding from the face, complaining of pain in her side, and in a state of nervous excitement; and that they were made within a reasonably short time after the events to which they related. Their receipt in evidence was well within the discretion of the Trial Court. State v. Peters, 90 N. H. 438, 440. The evidence of the previous assault by the defendant was offered to prove motive and prior relationship of the parties and was likewise admissible in the Court's discretion. State v. Palmer, 65 N. H. 216, 219; State v. Peters, supra, 440. See 3 Underhill, Criminal Evidence (5th ed.) ss. 645, 646.
Another argument presented in painstaking detail by amici is directed to the proposition that the medical testimony was insufficient to establish that death resulted from the assault. This contention is founded primarily upon the fact that the medical expert who conducted the autopsy testified that "The multiple injuries in themselves [were] not adequate to have resulted in death." He indicated however that by this he meant merely that such injuries of themselves would not have caused death "in a healthy individual." Explaining his opinion in the same answer, he further stated, "However the deceased was suffering from advanced arteriosclerotic cardiovascular disease and congestive *449 cardiovascular failure. The physical exertion concomitant to efforts of self-protection with the added shock produced by the physical injuries, particularly to the scalp, face and chest, acutely precipitated the mechanism of events which resulted in the untimely death of the deceased."
It is urged that this opinion was without foundation because of the absence of evidence that the deceased endeavored to protect herself from the assault, or that she suffered from shock due to her injuries, as distinguished from symptoms of heart failure. However the witness explained that the instinct of self-protection of any living organism was what he relied upon, and stated that the factor "isn't that important" to his conclusion. We find no error in permitting the expert to testify from his "general medical knowledge" that shock would result to a person in the deceased's physical condition from the fractures and other injuries which she admittedly suffered. In our judgment the issue argued before us by counsel went to the weight rather than the admissibility of the evidence, and the medical testimony was adequate to support a finding by the jury beyond a reasonable doubt that death occurred when it did because of the injuries inflicted.
The contentions made in the brief filed by the defendant personally that this evidence should not have been received because the medical expert was "not qualified as a State pathologist," and that the indictment must be "nol prossed" or dismissed for "lack of substantial evidence" cannot be adopted. The law is clearly established that the testimony of the expert was admissible. State v. Nelson, 103 N. H. 478, 485, supra. The exceptions to the denial of his motions to dismiss for lack of sufficient evidence are overruled.
Toward the close of the trial, the defendant offered in evidence a lengthy record of convictions of the decedent for drunkenness, upon pleas of guilty or nolo, over a period commencing in 1937 and ending in June 1960. The record was offered "to show the type of care that she took in allowing for her heart condition" and to "attack [her] credibility." The defendant's counsel declined to offer the record upon the issue of credibility alone, and excepted to the Court's ruling "excluding it on general medical grounds" when the State objected that there was "no evidence connecting it with death." We think the ruling was proper, and the exception is overruled.
At the close of the trial, the defendant moved that the issue of *450 aggravated assault be withdrawn from the jury upon the ground that there was no evidence, either that the means employed in the assault were highly dangerous, or that the accused had a motive beyond the intent to injure the decedent. State v. Skillings, 98 N. H. 203, 210. The motion was denied subject to exception. Following the charge to the jury, the defendant also excepted to instructions that an assault is an aggravated assault "where the means used are highly dangerous or if it is perpetrated with extraordinary violence which is likely to cause serious bodily harm," the exception being to the concluding clause relating to "extraordinary violence." In view of the evidence that the deceased had stated that the defendant "stomped" her with his feet, in addition to punching her and knocking her down, there was no error in denial of the motion, or in the instructions given. State v. Skillings, supra. See Medlin v. United States, 207 F.2d 33 (D.C. Cir. 1953).
The defendant did not testify at the trial. Contentions advanced in the brief submitted by him personally which have not already been considered are concerned with matters not contained in the record, and hence not supported by evidence. We find no basis for his broad assertion that he has been deprived of his "constitutional rights to a fair trial by due process of law." Prior to trial he was provided with counsel satisfactory to him at the time, and with the means to obtain witnesses. He was afforded full opportunity to present his defense during a lengthy trial, which we conclude after examination of the entire record was free from legal error.
The order in the case is
Exceptions overruled.
All concurred.
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742 S.W.2d 877 (1988)
294 Ark. 227
Johnny SCHERRER, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 87-71.
Supreme Court of Arkansas.
January 19, 1988.
*879 James P. Clouette, Little Rock, for appellant.
Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
HOLT, Chief Justice.
This case was tried and appealed separately from the case of Jimmy Scherrer v. State of Arkansas, 294 Ark. 287, 742 S.W.2d 884 (1988), also decided today. Johnny Scherrer was found guilty of murder in the first degree. Because the jury could not agree upon a sentence, the trial judge sentenced him to life imprisonment pursuant to Ark.Stat.Ann. §§ 41-802 and 43-2306 (Repl.1977). He argues ten points for reversal. We find no error and affirm the judgment of the trial court.
Debbie Watts was murdered in 1985. Terry Harrison, Scherrer's accomplice, and Billy Ivey, who witnessed the murder, offered the principal testimony at trial. Harrison testified that Scherrer, utilizing the name Jim Woods, called the victim's place of employment two days before the murder asking to speak with her. He also testified that Scherrer called the victim on the day of the murder and told her to meet him out near Dunklin's farm, which was near the crime scene. Ivey's and Harrison's testimony essentially established that Scherrer raped her, cut her throat, and then put her body in a nearby canal. Other witnesses placed Scherrer's automobile in the vicinity of the crime scene on the day of the murder.
I. MOTION FOR DIRECTED VERDICT
Scherrer first argues that the trial court erred in refusing to grant his motion for a directed verdict since the state failed to corroborate the accomplice testimony of Ivey and Harrison. Ark.Stat.Ann. § 43-2116 (Repl.1977) provides in pertinent part:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.
We have held that the failure of the state to corroborate its accomplice testimony warrants reversal and dismissal since it is essentially a failure by the state to prove its case. See our supplemental opinion on denial of rehearing in Foster v. State, 290 Ark. 495, 722 S.W.2d 869, cert, denied, ___ U.S. ___, 107 S. Ct. 3213, 96 L. Ed. 2d 700 (1987).
Ark.Stat.Ann. § 41-303(1) (Repl.1977) defines accomplice:
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, or failure to inform officers of the law is not sufficient to make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). The defendant has the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982).
The evidence clearly reflects that Harrison was an accomplice and that Ivey *880 was not. Ivey testified that although he was present at the crime scene, he did not participate in the commission of the crime. Terry Harrison corroborated this testimony. Other evidence introduced at trial establishes that Ivey simply witnessed the crime and then failed to inform the police. The jury was instructed pursuant to §§ 41-2116 and 41-303(1) and evidently concluded that Ivey was not an accomplice. The finding of a jury that a witness is not an accomplice is binding unless the evidence conclusively shows otherwise. Spears, supra. The evidence presented at trial does not show conclusively that Ivey was an accomplice.
When there is no evidence from which a jury could find a defendant guilty without resorting to speculation and conjecture, a trial judge should grant a directed verdict. Fortner v. State, 258 Ark. 591, 528 S.W.2d 378 (1975). Ivey testified that he saw Scherrer cut the victim's throat, place her on a piece of plastic, and rape her. Since Harrison's and Ivey's testimony coupled with other circumstantial evidence are sufficient evidence of Scherrer's guilt, the trial court was correct in refusing to render a directed verdict.
II. DISQUALIFICATION OF THE PROSECUTING ATTORNEY
Scherrer contends that the trial court prejudicially erred in denying his motion to disqualify the prosecutor, Sam Pope. He relies on our holding in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), to the effect that when a prosecutor takes such an active role in the investigation of a crime that he potentially becomes a material witness for either the state or the defense, it is reversible error to allow him to serve as an advocate for the state in the case. In Duncan, the prosecutor engaged in extensive interrogation of the defendant. He testified not only at a suppression hearing in support of interrogation procedures but also, in argument to the jury, he described the events during the defendant's confinement and expressed his opinion regarding a crucial element of the case. We held that in so doing, the prosecutor committed reversible error since he effectively became a witness for the state and underwrote his own credibility.
Unlike in Duncan, the prosecutor did not interrogate Scherrer but merely took a statement from Ivey, a potential witness (after promising him limited immunity), which implicated Scherrer. The defense later called Pope to testify concerning this statement and the offer of immunity. Pope's actions were part of a prosecutor's routine preparation for trial. He did not take such an active role that he potentially became a material witness in the case. The trial court did not err in denying the motion to disqualify.
III. FAILURE TO STRIKE VENIREMEN
Scherrer argues that because he had to use three of his peremptory challenges to strike jurors who should have been excluded for cause, he was forced to allow an objectionable juror to be seated. In order to preserve this point for appeal, an appellant must have exhausted his peremptory challenges and must show that he was later forced to accept a juror who should have been excused for cause. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Hill v. State, 275 Ark. 71, 628 S.W.2d 284, 285 (1982).
The sixth amendment to the Constitution of the United States guarantees a criminal defendant the right to unbiased and unprejudiced jurors. See Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). The burden is on the party challenging the juror to prove actual bias. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). When a juror states that he can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, he qualifies as impartial under constitutional requirements. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970). A defendant is not entitled to a trial before jurors completely ignorant of the alleged crime. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), rev'd on other grounds, Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987).
*881 After Scherrer exhausted his peremptory challenges, the trial court seated juror Rathey as the twelth and final juror. At this point, Scherrer objected by stating that he would strike Rathey if he had a peremptory challenge. From the voir dire testimony, there is no evidence that Rathey was biased. In fact, he indicated that he understood the presumption of innocence and would follow the law as explained by the court. Although Rathey stated that he had heard about the case on television, this in itself is not sufficient cause for removal. Id. There is no merit in Scherrer's contention that an objectionable juror was forced upon him.
IV. VOLUNTARINESS OF CUSTODIAL STATEMENTS
Scherrer contends that the trial court erred in admitting custodial statements coerced from him and Jimmy Scherrer in violation of their fourteenth and fifth amendment right not to incriminate themselves.
Johnny Scherrer does not have standing to assert that Jimmy Scherrer's right not to incriminate himself was violated since this right is personal. United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975); Shinsky v. State, 250 Ark. 620, 466 S.W.2d 911 (1971). In addition, since no custodial statements made by Jimmy Scherrer were introduced into evidence against Johnny Scherrer, Johnny Scherrer was not prejudiced in any way. See Blake v. State, 244 Ark. 37, 423 S.W.2d 544 (1968).
The issue that we must decide is whether Johnny Scherrer's custodial statements were involuntary. Such statements are presumed to be involuntary. Fleming, supra. On appeal the burden is on the state to show that the confession was made voluntarily, freely, and understandingly, without hope of reward or fear of punishment. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).
In determining whether a custodial statement is voluntary, we make an independent review of the totality of the circumstances and will reverse only if the trial court's findings are clearly against the preponderance of the evidence. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Pursuant to the "totality of the circumstances" approach, we examine two basic components: the statements of the officer and the vulnerability of the accused. Fleming, supra. Some of the factors we consider in determining whether a statement was voluntarily made include the youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Jackson, supra.
On September 28, 1985, Scherrer was arrested and taken to the Dumas Police Department. After officers read him his Miranda rights, he was questioned about the murder. When Scherrer did not respond to officer Ed Gilbert's questions, Gilbert, who was approximately six feet from Scherrer, became so angry that he slammed his hand down on a glass desk top, breaking the glass. He then asked Scherrer how he would like it if his throat were cut. The officers who witnessed the episode noticed no change in Scherrer's demeanor. After this, Gilbert did not question Scherrer further, or at least did not question him for more than a few minutes, and then left the room.
Shortly thereafter, Chief Ronnie Ferguson initiated a conversation with Scherrer. Approximately fifteen minutes after Ferguson began talking with Scherrer, Ferguson told him that the reason Scherrer could not remember what he had done the day of the murder was that he was there when the girl was killed. In response, Scherrer remarked that his car may have been there but he was not.
In examining the totality of the circumstances, we find it significant that fifteen minutes elapsed between Scherrer's confrontation with Gilbert and the statement to Ferguson, that Gilbert was not present when Scherrer made the statement, and that Ferguson did not engage in coercion or intimidation during the interrogation. *882 In addition, no physical punishment was inflicted on Scherrer, and he was advised of his constitutional rights prior to the thirty-minute questioning. For these reasons, we conclude that his statement to Ferguson was voluntarily and freely given.
V. IRRELEVANT AND PREJUDICIAL TESTIMONY
Scherrer argues that the trial court erred in allowing irrelevant and prejudicial testimony by state's witness Terry Harrison that Johnny Scherrer, Jimmy Scherrer, and he would pass their time by watching horror and sex movies obtained from the local video rental store. Relevant evidence is defined by Ark.R.Evid. 401:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
The fact that Scherrer passed the time watching sex and horror movies is irrelevant. The trial court should not have allowed the testimony. However, we cannot say this error warrants reversal as the prejudicial effect was minimal and the evidence of guilt so overwhelming. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1986).
VI. HEARSAY TESTIMONY
Scherrer argues that Glenda Bryant's testimony regarding two phone calls should have been excluded as hearsay. Bryant, a secretary at the victim's place of employment, testified at trial that while at work on Monday, September 16, 1985, two days before the murder, she received a phone call from someone who said that he was a friend of a man named Jim Woods. The caller asked for Ms. Watts and when told that she could not come to the phone, he said that he wanted Ms. Watts to speak with his friend, Jim Woods, about going back to school. The caller left directions to a local trailer park. Bryant also received a telephone call on Tuesday, September 17, 1985, from a man who said he was Jim Woods. The caller said that he wanted Ms. Watts to come talk to his mother about going to school.
Bryant's testimony was admissible as an exception to the hearsay rule contained in Ark.R.Evid. 803(3), as showing the declarant's intent on the day of the murder. In State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979), we held a statement by a witness that a murder victim had said she was going to meet the defendant on the night she was murdered was admissible under Rule 803(3), as showing the declarant's intent on the night of the murder. See also Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). Since the testimony was admissible, we affirm the decision of the trial court.
VII. DISCOVERY STATEMENTS
Scherrer contends that the trial court erred by allowing Mary Waltman to testify concerning a statement made to her by Terry Harrison subsequent to the time Ms. Watts became missing since the prosecutor failed to provide this statement pursuant to a discovery request. Waltman testified:
On Friday Terry didn't get out of the car. He acted okay on Thursday. I asked Terry to go around the trailer. That was on Thursday. He had told me he had to tell me something. He looked up at Johnny.
We will not reverse for errors that do not affect the essential fairness of a trial. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert, denied, 470 U.S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 145 (1985). A litigant is entitled to a fair trial, not a perfect one. Id. Even assuming the trial judge erred in allowing Waltman's testimony, Scherrer has failed to show the prejudicial effect of Waltman's statement that Terry had to tell her something. We affirm on this point.
VIII. PRIOR ARREST
Scherrer asserts that the trial court erred by not granting his motion for mistrial. He moved for a mistrial after state's witness Lewis Ash made reference to Scherrer's being "arrested for the first time" and to "the first time that Johnny got locked up." Ash made the statements *883 while describing, on direct examination, his move out of a trailer he shared with Scherrer and the time frame in which he owned the automobile that he later sold to Scherrer. In each instance, the trial court admonished the jury to disregard the statements.
A decision to grant a mistrial rests within the sound discretion of the trial court. Free, supra. A mistrial is an exceptional remedy that should be used only when error is so prejudicial that it cannot be cured by an admonition to the jury. Id; see also Burnett, supra.
In Burnett we held that a witness's reference to the defendant's prior bookings was cured by the trial court's admonishment to the jury. Likewise, the trial court's admonition in the instant case was sufficient to cure any possible prejudice to Scherrer. The court correctly refused to grant the motion for mistrial.
IX. DISCUSSION OF WITNESSES DURING RECESS
Scherrer argues that the trial court erred in failing to declare a mistrial after a police officer and state's witness Ash discussed during recess Ash's testimony concerning the location of a knife allegedly used in the murder. Before taking a recess, the court instructed the litigants not to discuss Ash's testimony with him. After Ash stated on cross-examination that he had talked to an officer during recess, the defense moved for a mistrial. After hearing testimony concerning the content of the conversation, the trial court denied the motion.
As stated above, we will not reverse the trial court's refusal to declare a mistrial in the absence of an abuse of discretion. Free, supra. Although Ash testified after recess as to the location of the knife, his testimony was not affected by the conversation and did not prejudice Scherrer. In fact, he stated, "It's not true that he [Johnny Scherrer] gave me this knife to hide." We find that the trial court did not abuse its discretion.
X. SENTENCING
Finally, Scherrer contends that the trial court erred in sentencing him to life imprisonment, and he should therefore be allowed a rehearing on the sentencing phase of the trial or, in the alternative, a new trial. Sentencing is strictly controlled by statute. Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984). There is no constitutional right to be sentenced by a jury. Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984); Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960).
During deliberation on the appropriate sentence for Scherrer, the jury asked the judge to define ten to forty and to define life. The judge answered, "You can sentence him to a range of not less than ten years nor more than forty years or you can sentence him to life imprisonment." Subsequently, the jury asked, "Are we to pick a number in the ten to forty range or do we just say ten to forty." The judge replied, "You are to pick a number in the ten to forty range or life." It is not clear why the jury asked, "Are we to pick a number in the ten to forty range or do we just say ten to forty." Scherrer argues that this language indicates the jury wanted to sentence him from ten to forty. Although this may have been the case, it is equally plausible that the jury did not understand the ten to forty instruction and merely wanted clarification before deliberating on ten to forty or life.
The jury later returned unable to reach a verdict. The judge sentenced Scherrer to life imprisonment pursuant to Ark.Stat.Ann. §§ 41-802 and 43-2306 (Repl.1977), which provide that the court shall sentence a defendant if the jury fails to agree on a punishment. Therefore, the trial court's action was proper.
Pursuant to Ark.Sup.Ct.R. 11(f), we have made our own examination of all other objections made at trial and find no reversible error.
Affirmed.
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201 F. Supp. 100 (1962)
Jesse BAXTER, Plaintiff,
v.
CURTIS INDUSTRIES, INC., Defendant.
Civ. A. No. 37232.
United States District Court N. D. Ohio, E. D.
January 18, 1962.
Harry A. Blachman, Cleveland, Ohio, for plaintiff.
Fred Ornstein, Cleveland, Ohio, for defendant.
GREEN, District Judge.
This matter is before the Court on the motion of Curtis Industries to dismiss a complaint filed against it by Jesse Baxter, alleging violations of 17 U.S.C. § 101. Baxter alleges that he is the holder of copyrights to certain books containing key code information on Volkswagen automobiles, and that Curtis is infringing thereon by the publication and sale of certain booklets containing similar information and has done so continuously since about February, 1958.
The motion to dismiss is predicated on the proposition that this action is barred by the applicable statute of limitations, 17 U.S.C. § 115(b). That code section provides:
"No civil action shall be maintained under the provisions of this title unless the same is commenced within three years after the claim accrued."
The complaint in this case was filed September 21, 1961.
Section 115(b) was enacted on September 7, 1957, effective September 7, 1958. Prior thereto, the time in which an infringement action could be brought was governed by the limitation prescribed for the class of actions to which the infringement action belonged, by the law of the state where the action was brought. Brady v. Daly, 175 U.S. 148, 20 S. Ct. 62, 44 L. Ed. 109 (1899); McCaleb v. Fox Film Corp., 299 F. 48 (C.A. 5, 1924); Pathe Exchange, Inc. v. Dalke, 49 F.2d 161 (C.A. 4, 1931). This created a wide diversity in limitations, and promoted "forum shopping" in infringement actions. It was to cure that evil *101 this general limitation was adopted. 1957 U.S.Code Cong. & Adm.News, p. 1961.
The determinative issue in this case is, quite clearly, whether the three-year limitation of Sec. 115(b) begins to run from the date of initial infringement, or dates from the last infringing act. If the former, then this action is barred by the passage of time.
A study of the legislative history is often of assistance in arriving at a proper determination of a statute's application. Senate Report 1014 states:
"The committee wishes to emphasize that it is the committee's intention that the statute of limitations contained in this bill, is to extend to the remedy of the person affected thereby, and not to his substantive rights." 1957 U.S.Code Cong. & Adm.News, p. 1963.
The Senate Report also embodies a portion of the House Report (No. 150), which similarly indicates that the limitations provision was designed to be remedial in nature.
Prior to the 1957 amendment the weight of authority, applying state statutes of limitation, was that the limitation ran from the last infringing act.
In Cain v. Universal Pictures Co., 47 F. Supp. 1013 (S.D.Cal., 1942), the Court held that acts of infringement continued while a motion picture was being exhibited. There one of the defendants was a script writer for the film. Judge Yankwich concluded that although the writer's direct activity ceased with the delivery of the script, as it was intended that the script would be the basis for the film and the film would be shown continuously, the script writer's infringement carried on while the film was on exhibition.
In the same Circuit, an action for injunction and damages instituted thirteen years after the initial infringing act but within nine months of the last infringing act, was held not barred by laches or limitations. Hampton v. Paramount Pictures, 279 F.2d 100 (C.A. 9, 1960).
Based on the foregoing, it appears that prior to the 1957 Amendment of Sec. 115 (b) the rule as to copyright infringement actions was, that the period of limitation began from the date of the last infringing act.
It is the opinion of the Court that the amendment was not intended to, and did not, change this basic concept. It simply made uniform a three-year limitation dating from the last act of infringement, in place of the multitude of state limitation periods. It is a remedial measure and should operate as such.
The complaint alleged a continuous infringement from February 1958 to the date of the complaint. There is no denial of this allegation by the defendant, and it must be presumed true for the purposes of this motion.
17 U.S.C. § 115(b) may limit the period of time in which damages are recoverable in this case, but by reason of the interpretation that the alleged infringement is continuous, the motion to dismiss is denied.
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742 S.W.2d 687 (1987)
Billy Ray MARTINEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 1357-85.
Court of Criminal Appeals of Texas, En Banc.
December 16, 1987.
George H. Tyson, Jr., Houston, for appellant.
Peter C. Speers, III, Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
TEAGUE, Judge.
Because the five count indictment that pertains to this cause, as it existed when it was filed in the District Clerk's office, is so important to our discussion, we will attach a copy of it to this opinion as "Appendix A".
*688 The indictment reflects that reference was made therein to a deed that expressly related only to the two forgery counts. The deed was to be attached to the indictment in the form of "Exhibit A" and filed with the indictment. However, it was never filed with the indictment. Another and different "Exhibit A", which appears to be in all things identical to the above "Exhibit A", was later caused to be stapled to the indictment by an assistant district attorney of Montgomery County. This was done without the knowledge of the trial judge, appellant, or his attorney.
After the jury was selected in this cause, but out of its presence and prior to the indictment being read to the jury by the assistant district attorney, see Art. 36.01(1), V.A.C.C.P., Billy Ray Martinez, hereinafter appellant, motioned the trial judge to dismiss the entire indictment because of prosecutorial misconduct, which motion the trial judge denied. However, pursuant to motion of the then District Attorney, the trial judge dismissed the two forgery counts from the indictment. Thereafter, appellant was tried and convicted of the remaining three counts of the indictment. Punishment was assessed by the jury at six years' confinement in the Department of Corrections on the two misapplication of fiduciary counts and at ten years' confinement in the Department of Corrections, probated, on the felony theft count.
Appellant thereafter appealed to the Ninth Court of Appeals (Beaumont), which ordered the convictions that he had sustained reversed and ordered the indictment dismissed. See Martinez v. State, 700 S.W.2d 27 (Tex.App.9th Dist.1985).
The court of appeals not only found that the assistant district attorney acted wrongfully, it also found that his conduct was so offensive and egregious that it caused the entire trial to be a nullity. The court of appeals sustained appellant's first ground of error which asserted the following: "The trial court erred in denying appellant's motion to dismiss the [entire] indictment for prosecutorial misconduct". In doing so, the court of appeals totally agreed with appellant's counsel's argument that the misconduct of the assistant district attorney was incurable error because, "First of all, ... [the copy of the deed that related to the two forgery counts in the indictment, which counts were dismissed on motion of the District Attorney prior to trial,] was an integral part of the remaining three counts of the indictment as it formed the basis of, and was material to, those counts." (Page 14 of appellant's counsel's brief.) The court of appeals then reversed the trial court's judgment and ordered the indictment dismissed.
On direct appeal, appellant's counsel also urged the following grounds of error, in addition to the above ground of error, why the trial court's judgment should be reversed: "II. THE FIRST MISAPPLICATION COUNT OF THE INDICTMENT IS FUNDAMENTALLY DEFECTIVE BECAUSE IT FAILS TO SET OUT THE DEED UPON WHICH THE ALLEGED MISAPPLICATION WAS BASED ACCORDING TO ITS TENOR. III. THE SECOND MISAPPLICATION COUNT OF THE INDICTMENT IS FUNDAMENTALLY DEFECTIVE BECAUSE IT FAILS TO SET OUT THE DEED UPON WHICH THE ALLEGED MISAPPLICATION WAS BASED ACCORDING TO ITS TENOR. IV. THE THEFT COUNT OF THE INDICTMENT IS FUNDAMENTALLY DEFECTIVE BECAUSE IT FAILS TO SET OUT THE DEED UPON WHICH THE ALLEGED THEFT WAS BASED ACCORDING TO ITS TENOR." (Pages 2 and 3 of appellant's brief.) Counsel also presented fourteen other grounds of error to the court of appeals, which have not yet been reviewed by that court.
Based upon its statements, that "[The deed which was] [a]n integral part of the indictment on which our appellant was convicted was never presented to or heard by the grand jury", and "At this point in time, no pleader can perform the duties which devolve upon and are confided to the grand jury and to it alone, see Brasfield v. State, 600 S.W.2d 288, 299 (Tex.Crim.App.1980); Sharp v. State, 6 White & W. 650, 653 (1879)", we understand the court of appeals to mean that an element of each of the offenses for which appellant was convicted *689 required a copy of the deed to be attached to the indictment that was presented to the Grand Jury and because the Grand Jury did not have the benefit of the second "Exhibit A" this caused each of the three counts on which appellant was convicted to be void.
We granted the State Prosecuting Attorney's petition for discretionary review in order to make the determination whether the court of appeals' holdings were correct. Although we do not disagree with the court of appeals' implicit finding that the assistant district attorney acted wrongfully, given the state of the record, we cannot agree that his actions caused the entire indictment to be void and that the trial became a nullity.
The record does not actually reflect that the new "Exhibit A", which the assistant district attorney caused to be stapled to the indictment, is an identical copy of the "Exhibit A" that was originally paper clipped to the indictment when the indictment was signed by the foreman of the Grand Jury. However, the record makes it obvious to us that the parties treated it as being an identical copy of the original "Exhibit A".
The indictment reflects that appellant was charged with committing two counts of misapplication of fiduciary property and funds while then acting in the capacity of a trustee of the funds; with committing one count of felony theft; and with committing two counts of forgery, by unlawfully (1) making and (2) delivering a deed to certain church property of which he was a trustee. The misapplication of fiduciary property and funds counts and the felony theft count did not expressly refer to any deed. The forgery counts did. The deed that related to the forgery counts was referenced in the original indictment after each forgery count in the following manner: "See Exhibit A which is appended hereto and incorporated herein for all purposes." This expressly referred to a copy of the deed that was the basis of the forgery counts. However, when the indictment was filed by the clerk, "Exhibit A", which consisted of a copy of the deed, was not attached or stapled to the indictment. The record does not reflect or indicate what happened to the original "Exhibit A". The assistant district attorney attempted to cure this omission by causing to be stapled to the indictment another "Exhibit A", which appears to be identical to the original "Exhibit A". After appellant's counsel became aware of what the assistant district attorney had done, he motioned the trial judge to dismiss the entire indictment. After a hearing was held on appellant's motion to dismiss the entire indictment, which motion was overruled, the then District Attorney, who was the lead prosecutor, motioned the trial judge to dismiss the two forgery counts from the indictment, which motion was granted by the trial judge. Appellant was thereafter tried and convicted on the remaining three counts of the indictment.
We point out that this is not a case involving the situation where the original indictment has been lost or misplaced. For statutory and case law involving a lost or misplaced indictment, see Arts. 20.22 and 21.25, V.A.C.C.P.; Bennett v. State, 77 Tex. Crim. 610, 179 S.W. 713 (1915); Morrison v. State, 43 Tex. Crim. 437, 66 S.W. 779 (1902); Hollingsworth v. State, 87 Tex.Cr. R. 399, 221 S.W. 978 (1920); Morris v. State, 96 Tex. Crim. 337, 257 S.W. 899 (1924); Clark v. State, 717 S.W.2d 910, 919 (Tex.Cr.App.1986).
Because we do not find where it was ever contested in the trial court that the indictment was not duly presented in open court and entered on the minutes of the court, we will apply the presumption of regularity to that phase of the case. E.g., Hardeman v. State, 552 S.W.2d 433, 436 (Tex.Cr.App.1977). Cf. Sommerlatte v. State, 39 S.W.2d 38, 39 (Tex.Cr.App.1931).
In this instance, only the attachment to the original indictment, "Exhibit A", a copy of a deed, became lost or misplaced after the foreman of the Grand Jury signed the indictment and before the indictment was filed.
Therefore, we find and hold that this omission from the indictment did not cause the trial court not to have jurisdiction over the cause.
*690 However, if the missing attachment was a necessary element of each of the alleged offenses, then, of course, this would cause the indictment not to state any offense against appellant. It would then be fundamentally defective and none of appellant's convictions would be valid.
In this cause, apparently aware of this Court's decisions that before a valid conviction can be obtained for the offense of forgery, the indictment must set out the alleged forged instrument according to its tenor, see, for example, Ex parte Davis, 642 S.W.2d 179 (Tex.Cr.App.1982); Harris v. State, 199 S.W.2d 522 (Tex.Cr.App. 1947); Terry v. State, 471 S.W.2d 848, 849-850 (Tex.Cr.App.1971); Ziegler v. State, 50 S.W.2d 317 (Tex.Cr.App.1932), also see 22 Tex.Jur.3rd 654, § 2364; 41 Am.Jur.2d 969, § 143; 42 Corpus Juris Secundum, Indictments and Informations 1055, Section 144, prior to trial, the then District Attorney motioned the trial judge to dismiss the two forgery counts from the indictment, which motion the trial judge granted.
Given what this Court has stated and held in the past, it should not now be questioned that the above rule makes a forged instrument a necessary element of the offense of forgery.
Did the act of the assistant district attorney, that caused a new "Exhibit A" to be stapled to the indictment, cause the indictment in its entirety to be substantially amended? By the usual definition for the word "amendment", see, for example, The American Heritage Dictionary of the English Language 42, which defines that word as "A change for the better; improvement", there should be no question that the assistant district attorney's act caused the indictment to be better. The issue, however, is whether the attachment was necessary to each count of the indictment.
In its "Newsletter" dated December 31, 1971, the Texas District & County Attorneys Association interpreted Calvin v. State, 25 Tex. 789 (1860), to hold that "an unauthorized amendment of one count of an indictment will cause the entire indictment to be void even if another count of the indictment was not affected by the amendment to the other count." The opinion of the Supreme Court reflects that the parties in that cause entered into a formal agreement to erase from the indictment certain wording of a count of the indictment that related to the ownership of a slave who had been allegedly murdered by the defendant, another slave. This act of the parties, however, did not affect another valid count of the indictment. Nevertheless, the Supreme Court held: "There can be no amendment as to any declaration of a fact by the grand jury. If there can be no amendment of matter of substance by the court, a fortiori there can be no alteration of the indictment as to matter of substance by agreement between the district attorney and the counsel for the prisoner... [W]hen a party is put to trial upon an indictment which has been improperly amended by the court in a material respect, or which has been altered by agreement of counsel in a material respect, such amended or altered indictment will not support a conviction; and if there be verdict and judgment upon such an indictment, the judgment should be arrested." (794-795). (Our emphasis.)
Calvin, supra, may be distinguishable from this cause solely on the basis that appellant was not convicted of committing any forgery offenses. He was not put to trial on those counts of the indictment.
We find that Calvin, supra, would be applicable to this cause only if we held that the new attachment was not only a necessary element of the forgery counts, which we do hold, but was also a necessary element of the misapplication and theft counts of the indictment on which appellant was convicted. We find and hold it was not and further hold that the misconduct of the assistant district attorney only went to the forgery counts of the indictment, and did not go to the misapplication and theft counts of the indictment. Validity of the act of the assistant district attorney in causing ex parte the new "Exhibit A" to be attached to the indictment thereby became moot when the trial judge, prior to trial, dismissed the two forgery counts from the indictment.
*691 As we have previously pointed out, it is clear under our law that the copy of the deed was a necessary and substantive part of the forgery counts of the indictment. It is also clear under our law that "No matter of substance [in an indictment] can be amended", Art. 28.10, V.A.C.C.P., prior to amendment in 1985. Our law has long provided that neither the district attorney nor the defense attorney and the accused can materially amend the indictment as to matters of substance, either ex parte or by consent. Calvin v. State, 25 Tex. 789 (1860); Jeters v. State, 82 S.W.2d 150 (Tex.Cr.App.1935); Morman v. State, 75 S.W.2d 886 (Tex.Cr.App.1934); Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975). In Howard v. State, 667 S.W.2d 524 (Tex. Cr.App.1984), this Court recently held: "The attempt at [substantively amending] the indictments was a legal nullity." (526). Furthermore, as Judge Miller pointed out in the concurring opinion that he filed in Howard v. State, supra, it matters not whether the attempt was to add to or delete from the indictment as it was then worded. If the attempt went to a substantive matter of the indictment, the attempt was a legal nullity. In this instance, the copy of the deed was unquestionably legally necessary in order to obtain valid convictions on the forgery counts. We find and hold that the assistant district attorney's unsuccessful attempt to supplement the original indictment with a new copy of the deed was therefore a legal nullity. Any issue arising therefrom became moot when the forgery counts were dismissed pretrial by the trial judge.
We will now examine the misapplication of fiduciary property and the felony theft counts of the indictment. Also see "Appendix A".
The first misapplication count alleges that appellant, while serving as trustee of property, deeded the property to himself. Appellant claims that the new "Exhibit A" was a matter of substance without which that count was rendered fundamentally defective. We disagree.
Our research reveals that this Court has never applied the general rule, that a written instrument must be set out in the indictment according to its tenor, to misapplication of fiduciary property cases.
However, this Court has applied the general rule to forgery, swindling, sending an anonymous letter, false swearing, and untrue advertising cases. See Terry, supra, and the cases cited therein at pages 849-850.
In those cases, also see those set out ante at page 4 and Wilson v. State, 193 S.W. 669 (Tex.Cr.App.1917) and Baker v. State, 14 Tex. 332 (1883), the opinions make it clear that the written instrument was part of or formed the basis of the offense. Thus, integral to those offenses was the exhibition of a written instrument to a third party which formed the basis of the offense.
We find that the first misapplication count did not require that appellant had to exhibit the deed before committing the offense. Appellant was charged with misapplying trust property in violation of the Texas Trust Act, Art. 7425b-12, V.A.C.S., which prohibits a trustee from buying or selling any trust property from or to himself. It was thus unnecessary for the State to allege that appellant exhibited any deed to a third party. It was only necessary for the State to prove that he deeded to himself the property. However, that fact was only evidentiary, and unless a fact is an essential element of the offense, it is not necessary for the State to plead it. See Thomas v. State, 621 S.W.2d 158 (Tex.Cr. App.1981). Because that fact did not have to be pled, that count of the indictment was not fundamentally defective.
What we have said regarding the first misapplication count of the indictment is also applicable to the second misapplication count of the indictment. In that count, appellant was charged with unlawfully misapplying fiduciary funds to himself and others. The unlawful use of the deed enabled appellant to obtain the funds. However, that was an evidentiary fact and not a fact that was an essential element of the offense. It did not have to be pled. See Thomas, supra.
*692 As to the felony theft count, this related to obtaining a check from the County Treasurer of Montgomery County for the sale of the trust property to Montgomery County. In order to obtain the check from the County Treasurer it was unnecessary for appellant to exhibit to her the deed to the property. Any exhibiting of the deed prior to that time was merely an evidentiary fact that did not have to be pled. See Thomas, supra.
Given what we have stated, we hold that no amendment of the three counts of the indictment on which appellant was convicted occurred. Thus, those counts were not affected by the assistant district attorney's unsuccessful attempt to add to the indictment the new "Exhibit A". When the forgery counts were dismissed, prior to trial, this caused the issue of amendment as to those counts to become moot. E.g. Meeks v. State, 653 S.W.2d 6, 10 (Tex.Cr.App.1983).
In holding that the misconduct of the assistant district attorney caused the entire trial to be void ab initio, the court of appeals relied upon this Court's decision of Smith v. State, 406 S.W.2d 455, 456 (Tex. Crim.App.1966). In all due respect to the court of appeals, we find that this Court's decision of Smith, supra, is not authority for its statement that the assistant district attorney's misconduct rendered the trial void ab initio.
The opinion of Smith, supra, reflects that this Court rejected the defendant's contention, which was raised for the first time after trial had taken place, that "the complaint upon which the information was based was added to or altered after it was sworn to and the entire proceedings were thereafter void ab initio." In rejecting the defendant's contention, this Court carefully pointed out in its opinion that it was not undisputed that the complaint in that cause was later altered after it had been originally signed, although the record was clear that at some unknown time certain portions of the complaint had been "x-ed" out and interlineations had also occurred on the complaint. The officer who signed the complaint, however, testified that the complaint on file appeared to be in the same form when he signed it. Thus, the trial judge's finding, that if any "x-ing" out or interlineations had occurred, such occurred prior to the time when the complaint was signed by the officer and filed by the clerk, was supported by the evidence. In short, neither Smith, supra, nor the cases relied upon by the defendant in Smith, supra, which merely held that prosecutions could not be maintained where the complaint was either not sworn to or signed by the affiant, are factually on point with this case, and do not support the statement that the court of appeals made.
Therefore, the judgment of the court of appeals is vacated and the cause remanded to that court for proceedings not inconsistent with this opinion.
CLINTON, MILLER, CAMPBELL and DUNCAN, JJ., concur.
*693
*694
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410 Pa. 285 (1963)
Commonwealth
v.
Gooslin, Appellant.
Supreme Court of Pennsylvania.
Argued January 17, 1963.
March 19, 1963.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
*286 John E. Stively, with him Stively and Mitman, for appellant.
A. Alfred Delduco, Assistant District Attorney, with him Samuel J. Halpern, District Attorney, for Commonwealth, appellee.
OPINION BY MR. CHIEF JUSTICE BELL, March 19, 1963:
The defendant, George Gooslin, was tried for murder of his wife, Sadie Gooslin. The jury returned a verdict of guilty of murder in the second degree. Defendant's motions in arrest of judgment and for a new trial were overruled and he was sentenced to pay a fine of $2,500, plus costs, and to serve not less than 10 or more than 20 years in the State Correctional Institution at Philadelphia, Pennsylvania. Thereafter, defendant appealed the judgment to this Court.
Defendant contends: (1) the trial Court erred in overruling his demurrer; (2) the evidence was insufficient to sustain his conviction and his motion in arrest of judgment should be granted; and (3) the trial Court erred in overruling his motion for a new trial because the verdict was against the weight of the evidence. Defendant places his main reliance on the second contention.
In Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552, the Court said (page 633): "`The test of the sufficiency of the evidence irrespective of whether it is direct or circumstantial is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, i.e., the murder of Max Kravitz: Commonwealth v. Sauders, 390 Pa. 379, *287 134 A.2d 890; Commonwealth v. Boden, 399 Pa. 298, 159 A.2d 894; Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743; Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A.2d 587; Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464; Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733; Commonwealth v. Blanchard, 345 Pa. 289, 26 A.2d 303; Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070.
"`In Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455, the Court said (page 227): "It has become customary for a defendant in his argument before an Appellate Court to base his claims and contentions upon his own testimony or that of his witnesses even after a jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, `we accept as true all of the Commonwealth's evidence upon which, if believed, the jury could have properly based its verdict: Com. v. Blanchard, 345 Pa. 289, 296, 26 A.2d 303, 306 (1942). See also Com. v. Karmendi, 328 Pa. 321, 324, 195 A. 62, 63 (1937); Com. v. Watkins, 298 Pa. 165, 168, 148 A. 65, 66 (1929); Com. v. Carelli, 281 Pa. 602, 605, 127 A. 305, 306 (1925); Com. v. Priest, 272 Pa. 549, 550, 116 A. 403 (1922); Com. v. Diaco, 268 Pa. 305, 306, 11 A. 879, 880 (1920).' . . ."'"
In Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861, the Court said (page 208): "`. . . ". . . Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. `. . . It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt: Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Homeyer, 373 *288 Pa. 150, 94 A.2d 743; Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A.2d 733; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070; Commonwealth v. Wentzel, 360 Pa. 137, 61 A.2d 309': Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 348, 106 A.2d 587."' See also to the same effect: Commonwealth v. Boden, 399 Pa. [298, 159 A.2d 894]; Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435; Commonwealth v. Carey, 368 Pa. 157, 82 A.2d 240."
In Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464, the Court said (pages 510, 511): "Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15. `Murder', Mr. Justice STEARNE aptly said, in Commonwealth v. Buzard, 365 Pa. 511, 515, 516, 76 A.2d 394, `is defined as an unlawful killing of another with malice aforethought, express or implied.' The legislature divided murder into two classifications, murder in the first degree and murder in the second degree; and provided that (1) all murder perpetrated by poison or lying in wait; or by any other kind of wilful, deliberate or premeditated killing, or any murder which shall be committed in the perpetration of or attempt to perpetrate certain specified felonies [arson, rape, robbery, burglary, or kidnapping], is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of June 24, 1939.[*]
"Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances.
*289 "To summarize: If there was an unlawful killing with (legal) malice, express or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental: cf. Commonwealth v. Almeida,[*] 362 Pa. 596, 68 A.2d 595; Commonwealth v. Moyer and Commonwealth v. Byron,[*] 357 Pa. 181, 53 A.2d 736; Commonwealth v. Guida, 341 Pa. 305, 19 A.2d 98; Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213; Commonwealth v. Robb, 284 Pa. 99, 130 A. 302; Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733; Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394; Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125; Commonwealth v. Sterling, 314 Pa. 76, 170 A. 258; Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24; Commonwealth v. Exler, 243 Pa. 155, 89 A. 968; Commonwealth v. Drum, 58 Pa. 9; 4 Blackstone, Commentaries 192-193; 40 C.J.S. § 13 p. 857, § 20 p. 866, § 21 p. 868; Wharton, Homicide § 2 p. 2, § 92 p. 112 (3rd ed. 1907); Maurer, Pennsylvania Criminal Law: Murder § 3582 p. 915 et seq., § 3689 p. 953 et seq.; 1 Warren, Homicide § 74 (Perm. ed. 1938); Clark & Marshall, Crimes § 245 (4th ed. 1940)."
Defendant contends, expressly or impliedly, that his wife must have died from too much alcohol, or that someone else killed her. He does not contend and could not justifiably contend that if she died as a result of brutal beatings, as the Commonwealth's evidence proved, this would not amount to or constitute murder in the second degree: Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125, and cases supra.
We shall briefly summarize the circumstantial evidence produced by the Commonwealth upon which the *290 jury could justifiably have based its verdict that defendant had murdered his wife, Sadie Gooslin.
Sadie Gooslin died in the evening of August 12, 1960, between the hours of 8:30 and 10:30 p.m. Dr. Walter M. Levy, who performed an autopsy on August 13, 1960, testified (a) that the cause of death was bilateral hemothorax; (b) that Mrs. Gooslin had sustained complete fractures of the left 3d, 4th, 5th and 6th ribs and right 8th and 9th ribs; (c) that these fractures had penetrated the plural cavity housing the lungs and causing blood to flow into the cavity, which resulted in an 80% collapse of the lungs; (d) that Mrs. Gooslin suffered contused wounds over her entire body; (e) that her eyes were black, her lower lip was swollen and cut inside and her face was swollen; (f) that the muscles beneath the skin of the chest were swollen, puffed and full of bloody material; (g) that after she had sustained these injuries, she could only have moved or struggled a few feet; and (h) that she died within a few hours after the infliction of the above described injuries.
Although defendant and his wife resided in Chester County, Pennsylvania he worked in Wilmington, Delaware and came home only on weekends. For many months and especially for the month preceding Mrs. Gooslin's death, defendant fought and quarreled with his wife every weekend. At these times Mrs. Gooslin's body was badly battered and bruised and her eyes were constantly black and blue; and while this condition did not clear up during the week, it always was worse during and right after the weekend.
Betty Miller, a neighbor, testified that on December 19, 1959, she and her sister, Goldie Barbara Delp visited the Gooslin home and found Mrs. Gooslin upstairs in bed in a bloody condition. Goldie Delp testified that the defendant remarked after being asked to take his wife to the hospital "I ought to take her *291 and throw her over the dump." Mrs. Gooslin was subsequently taken to the hospital and examined by Dr. John Marlow. He testified that she was treated for swelling of the pelvic region, a bruise of the left eye and jaw and a tear-type laceration (1 1/2 inches long) of the vulva.
Betty Miller further testified that on July 17, 1960 defendant and Mrs. Gooslin quarreled. Josephine Bolt, Mrs. Gooslin's daughter, testified that on Saturday evening, July 31, her mother appeared at her home in a beaten-up condition; her eyes were black and bloodshot and her legs were swollen. She stayed two days and nights and returned to her home with Josephine and Roy McCompsey. Roy McCompsey, a friend of the Gooslins, testified that Sadie said, "Josephine, don't leave me. You'll be sorry for it." The defendant's 15-year old son, Earmel Gooslin, testified that during the six weekends previous to Mrs. Gooslin's death his parents had quarreled on four of them and that during one of these quarrels he heard the sound of dishes breaking. Miss Mary Sheila Beirne, a third-year medical student, testified that on August 8 at 2 a.m. she treated Mrs. Gooslin at Jennersville Hospital for a scalp wound. Emanuel Ciaki, Mrs. Gooslin's half-brother, saw the victim on Friday, August 12, between 5:30 and 6 a.m. and also saw her at 5 p.m. at which times both of her eyes were blackened.
On Friday, August 12, defendant returned from Wilmington about 4:30 or 5:30 p.m. Kenneth Bennett, who was living with the Gooslins, testified that while defendant was upstairs with his wife he heard three or four bangs on the floor. Shortly thereafter defendant and Mrs. Gooslin came downstairs and went into the kitchen. Bennett testified that he heard the sound of breaking glass coming from the kitchen and that the defendant told his wife "if she didn't start cooking, quit running around, he was going to bust the stove *292 up and throw it out." Bennett left the house and returned at 9 p.m. While Bennett was away from the house, defendant was alone with his wife except for their young children. Bennett retired about 10:00 p.m. Defendant woke Bennett about 2:30 a.m. and said "Something's wrong with Sadie." Bennett went with him to her room. Mrs. Gooslin's eyes were blackened, her face was terribly swollen and her condition was much worse than ever before. Defendant then told Bennett to get a doctor. Bennett left the house but shortly thereafter returned because he was unable to procure a physician. Defendant then told him to call the police, which he did.
Two State Police Officers arrived about 2:15 a.m. They summoned Dr. A.J. Torrello who arrived about 2:30 a.m. and made a preliminary examination of the body. He testified that Mrs. Gooslin had been dead from four to six hours; that she had been badly beaten up and that her head, face, neck, arms and legs were covered with bruises. Rigor mortis was complete. The pictures of the victim show her in a condition which was horrible. Defendant admitted that she was often in a beaten-up, black and blue condition, but said he had struck her only once and that was with his open hand two or three years before her death. Defendant denied that he had killed his wife and failed or was unable to explain how or why she was constantly in a "beaten-up" condition, after every weekend on which he was home. On cross-examination he implied that her death must have resulted from excessive use of alcohol, or that she was killed by someone else, or "done it herself."
The trial Judge thus accurately summarized the evidence: "Defendant came home only on weekends. He and his wife quarreled each time they met on each of the four weekends before her death. She was bruised and battered each weekend and the marks carried *293 through each succeeding week. Defendant was at home with the victim at the time [of] her death[*] . . . . Her death was of traumatic origin and her body was brutally injured. She had received severe beatings on prior occasions when Defendant was home, particularly the two weekends immediately previous to that when she died and in December, 1959. When questioned about her death Defendant said once that she must have done it herself and another time that she died from drinking alcohol. Her blood tested negative for alcohol at the autopsy. Defendant denied killing his wife. He further denied striking her except for a single slap two or three years before. In cross-examination of Commonwealth witnesses his defense implied that either Bennett or one Cleo Miller caused the death, but he called no testimony in the defense to support that theory. Nor did Defendant when testifying try to explain his wife's injuries on the fatal weekend or at any previous time when he was home. . . ." Defendant's explanation as to the cause of his wife's death was so obviously false and fabricated, that it tended to further confirm his guilt.
We find no merit in any of defendant's contentions. After a careful review of the record we are of the opinion that the evidence was sufficient to enable the jury to find beyond a reasonable doubt that defendant murdered his wife.
Judgment and sentence affirmed.
Mr. Justice MUSMANNO dissents.
NOTES
[*] P.L. 872, as amended, § 701, 18 PS § 4701.
[*] Reversed on another point.
[*] Italics, ours.
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189 A.2d 542 (1963)
Sumner F. FARR, Peggy M. Farr
v.
STATE HIGHWAY BOARD.
No. 384.
Supreme Court of Vermont. Chittenden.
January 3, 1963.
Reargument Denied March 6, 1963.
*543 Latham & Eastman, Burlington and Robert P. Davison, Jr., Essex Junction, for plaintiff.
Louis P. Peck, Legal Asst. to Atty. Gen., Montpelier, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
*544 HOLDEN, Justice.
By this appeal the state highway board seeks to vacate a judgment of the Chittenden County Court at its March Term 1962 in a highway condemnation proceeding. The judgment followed special and general verdicts returned by the jury on an appeal from an original award by the condemning authority for the taking of 28.7 acres of land from the plaintiffs' farm of two hundred ninety-five acres in the town of Richmond. The land was taken for construction of a part of the Interstate Highway System. The principal question is the court's treatment and consideration of extensive sand deposits on the condemned land.
During the previous March Term in 1961, a pretrial order was entered under the direction of a different superior judge than the judge who presided at the trial. This order confirms the agreement of counsel that the date of taking was December 28, 1960. It further confirms a stipulation concerning identification of the condemned parcel and the parties' arrangements for taking a view. At the conclusion of the pretrial order, without reference to any agreement, it is stated, "There appears to be no extra compensable items."
At the trial the plaintiffs introduced evidence that they had maintained an operating sand pit on other parts of their farm. Prior to the taking, the plaintiffs had sold considerable quantities of sand at unit prices which carried from five to twenty-five cents per cubic yard. Other evidence was introduced by the plaintiffs, and confirmed by the defendant's engineer, that after the date of taking, 200,000 yards of sand were excavated from the condemned parcel which was used in the Interstate Project.
When the case was submitted, the jury was instructed to complete and return two verdicts which had been prepared for them. The first was general in nature and was designed to report the finding as to the difference in the market value of the farm resulting from the condemnation. The second was a special verdict. As to this, the court instructed the jury that if any portion of the first verdict included an allowance for sand, it should indicate the extent of such allowance. The interrogatory prescribed for reporting this determination was, "What portion of the above amount of your verdict is awarded for sand deposits?"
The defendant objected to the requirement of a special verdict on the ground that the issue of the sand deposits constituted an extra compensable item which was specifically precluded by the pretrial of May 1, 1961.
The jury returned a general award for the plaintiffs in the amount of $9180. The special verdict indicated that of this amount, $4500 was allowed for the sand deposits.
The trial court was correct in not withholding consideration of the sand deposits from the jury on the strength of the pretrial order. The order contains no specific agreement or direction that the subject of the inquiry in the special verdict was settled or precluded. It states merely the observation or understanding of the court conducting the pretrial hearing, that no extra compensable items of damage were claimed.
Pretrial orders should be agreed upon by counsel. The order should recite, in unequivocal language, the substance of specific stipulations by the parties resulting from the conference, so there can be no question about these matters when the case comes on for hearing. Issues that are not explicitly disposed of by agreement or express admission remain for trial. 1 Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, § 473, p. 963; Nims, Pretrial, p. 156.
In any event the recital in the pretrial order as to extra compensable items is not of controlling importance, in view of the posture of this appeal. Whether the sand deposits were actually the subject of extra compensation by the jury, apart and independent of the award for the land taken, is *545 the controlling question presented for review. And this very issue is the main concern of the remaining assignments of error claimed by the highway board.
The problem of mineral deposits in land taken by eminent domain presents a peculiar difficulty. The law is well established that the existence of known mineral deposits, including sand and gravel, cannot be ignored. The deposit may be of value and a proper factor to be considered in arriving at the true market worth of the parent property before and after the condemnation. It is equally well settled that such deposits cannot be made the subject of a separate evaluation, apart from the land where it is contained, and added to the market value of the land as additional compensation for the taking. Montana Railway Co. v. Warren, 137 U.S. 348, 352, 11 S. Ct. 96, 34 L. Ed. 681; United States v. 158.76 Acres of Land, 2 Cir., 298 F.2d 559, 561; Nedrow v. Michigan-Wisconsin Pipeline Co., 245 Iowa 763, 61 N.W.2d 687, 694; New York Central Railroad Co. v. Maloney, 234 N.Y. 208, 137 N.E. 305, 308; Edwin Moss & Sons, Inc. v. Argraves, 148 Conn. 734, 173 A.2d 505, 506; Hollister v. Cox, 131 Conn. 523, 41 A.2d 93, 156 A.L.R. 1412, 1415, and annotation that follows; Nichols, Eminent Domain, § 13.22 (4th Ed. 1962); 29 C.J.S. Eminent Domain § 174, p. 1043; 18 Am.Jur., Eminent Domain, § 242, p. 878.
The worth of mineral deposits, like improvements on the land, cannot be recovered as such. But they are material and important to the consideration of the main issue. See Demers v. City of Montpelier, 120 Vt. 380, 389, 141 A.2d 676.
The jury was bound to consider the farm as an entire unit, prior to the condemnation, and afterward as well. Like most farm properties, its total value was composed of different elements. The growing timber and the sand deposits, although not essential to the dairy operation, each contributed something to the overall market value of the property.
The uncertainties of the commodity market, and the unpredictable and speculative nature of anticipated profits or unexpected losses, forbid the evaluation of the sand deposits as potential merchandise. Nichols, Eminent Domain, supra, § 13.22. Although the plaintiff introduced evidence which had this tendency, and the defendant cross-examined on the subject, it is apparent that the jury was not persuaded by it. And the plaintiffs' evidence in this regard was not accepted as the criterion for the amount indicated in the special verdict.
Had the jury adopted the plaintiffs' minimum calculation of 200,000 yards at five cents a yard, the valuation of the sand deposit would have reached at least $10,000. The interrogatory was answered in the amount of $4500.00.
There was nothing in the court's instructions to convey the idea that the jury was to determine the "before and after" market value of the farm and add to that computation the separate value of the sand deposit. After explaining that the plaintiffs' compensation should be measured by the difference in the fair market value of their land before, as compared to the market value after the taking, the court went on to explain: "In arriving at the fair market value, you should consider, naturally, the number of acres involved, the location, the nature of it; that is whether meadow or timber land or woodland or pasture; the use that was made of it; that is the most reasonable use, the original cost of the property to the Plaintiffs, the value of the non-access acreage, the effect of the taking as it pertains to the remaining property, if any, the physical condition, the general overall usefulness of the property, the timber, loss of timber, the loss of wood, loss of sand, if any. Consider all these matters as you find them to be from the evidence and then decide what the difference in the fair market value of the property is, or was, on December 28, 1960, when the State acquired the land." Later the presiding judge pointed out to the jury that "the Law does not permit land owners to isolate areas *546 of land and place upon it an inflated value. You must look at the property on the overall basis."
From the colloquy that followed the instructions, between the presiding judge and counsel, it appears that the court was apprehensive that the question of the sand deposits might have violated the pretrial order in reference to extra compensable items. In substance, the trial court stated it required the special verdict to enable this reviewing court to reduce the general award by the amount specified in the interrogatory, if the jury's consideration of the sand deposit should be held to be in error.
We interpret the special verdict as the expression by the jury of its judgment in dollars of the amount and degree by which the market value of the Farr Farm was affected by the presence of the sand deposit. This conclusion is consistent with the requirement that we construe the record on appeal to support the result reached in the court below, if this reasonably can be accomplished. Goodwin, Admx. v. Gaston, 103 Vt. 357, 371, 154 A. 772. To hold otherwise would require an assumption on our part that the jury disregarded the court's instructions on the correct measure of compensation. Such an assumption is not supported by the record and is unwarranted in law.
Since the extent of the sand deposit was not treated as marketable merchandise, nor added as an extra increment to the differential in the market values of the farm caused by the condemnation, the jury's statement as to how this factor was composed in the ultimate award was not in error. A review of the record in its entirety indicates the judgment was reached according to law and achieved a proper result.
Judgment affirmed.
ON REQUEST FOR PERMISSION TO REARGUE
The defendant has filed a timely request for permission to reargue this appeal on the contention this Court has overlooked and failed to apply the so-called enhancement principle, particularly as expressed in United States v. 158.76 Acres of Land, (C.C. A.2d 1962) 298 F.2d 559, 560. This case and its doctrine was not overlooked. Indeed, this authority was cited in the opinion in support of the only point to which it is germane to the present controversy; namely, "* * * that if the condemned land contains a mineral deposit, such as gravel, it is proper to consider this fact in determining the market value of the land as a whole, but it is not permissible to determine separately the value of the mineral deposit and add this to the value of the land as a unit." United States v. 158.76 Acres of Land, supra, 298 F.2d at 561.
In the federal case, the enhancement principle became involved on a point of evidence. The landowner introduced in evidence a contract for the sale of gravel for the very project for which the land was condemned. This and other evidence along the same line was held to have been improperly received on the settled rule that it is unfair to require the Government to pay the enhanced price which the federal project alone has created. The enhanced price reflects elements of value which are dictated by the urgency of the situation which is not the true market value. U. S. v. Cors, 337 U.S. 325, 332, 69 S. Ct. 1086, 93 L. Ed. 1392; see also, United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336, 147 A.L.R. 55, 63, and annotation; Calvo v. United States, 9 Cir., 303 F.2d 902, 907.
The record certified in the present appeal does not support the application of the doctrine of these cases, to achieve a reversal of the judgment below. Although the plaintiff testified without objection that he had sold some sand for use in the project, there was nothing in the evidence to indicate that the market value of lands containing sand deposits was controlled or enhanced by the construction of the interstate system. There was evidence that the *547 plaintiff had sold sand and gravel from operating pits on other holdings in the area over an extended period of time. One appraiser testified, in response to cross-examination by the defendant, that there was always a good demand for sand in the general area. Unlike the United States v. 158.76 Acres of Land referred to above, evidence concerning the plaintiffs' current contracts for the sale of sand and gravel was specifically excluded.
The testimony that 200,000 yards of sand was removed from the condemned land was received without objection. In any event, this was a relevant and material fact to the nature and extent of the deposit in considering the overall value of the land as a unit.
The remaining points upon which the defendant seeks reargument were not presented in the original briefs as required by Supreme Court Rule 22. Moreover it does not appear these questions were raised in the trial court, nor that they would affect the final result had they been properly preserved.
Permission for leave to reargue is denied. Let full entry go down.
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189 A.2d 423 (1963)
The PENNSYLVANIA RAILROAD COMPANY, a corporation of the Commonwealth of Pennsylvania, Defendant Below, Appellant,
v.
Ray THARP, Plaintiff Below, Appellee.
Supreme Court of Delaware.
February 28, 1963.
Petition for Reargument Denied March 21, 1963.
C. W. Berl, Jr., of Berl, Potter & Anderson, Wilmington, for appellant.
Gerald Z. Berkowitz, of Wahl, Greenstein & Berkowitz, Wilmington, for appellee.
Before SOUTHERLAND, C. J., and WOLCOTT and TERRY, JJ., sitting.
*424 WOLCOTT, Justice.
This is an appeal by the Pennsylvania Railroad Company from a judgment of $25,000 entered on a jury's verdict in a personal injury case.[*] At the close of the plaintiff's evidence, the Railroad moved for a directed verdict in its favor and renewed its motion to that effect at the close of all the evidence. Both motions were denied and the case submitted to the jury. Following the verdict, the Railroad moved for a new trial under Civil Rule 59 and for judgment N.O.V. under Civil Rule 50(b), Del.C. Ann. Both post-verdict motions were denied. The Railroad's appeal is from the judgment entered on the verdict, from the denial of its pre-verdict motions, and from the denial of its motions under Civil Rules 59 and 50(b).
Numerous points are raised by the appeal but, fundamentally, the questions before us are whether or not the evidence supports a finding of negligence on the part of the Railroad, and whether or not the evidence requires that the plaintiff be held guilty of contributory negligence as a matter of law, thus taking the case from the jury. Also, the Railroad argues that the verdict of $25,000 is so excessive under the circumstances as to require it to be set aside.
The accident out of which arose the plaintiff's personal injuries occurred on November 5, 1959 at the New Castle Avenue crossing of the Railroad's track in the City of Wilmington. The crossing in question is protected by a system of flashing lights and a warning bell set in operation by the approach of a train. At the time of the accident the plaintiff's evidence was to the effect that neither the warning bell nor the flashing lights were working when he tried to drive his truck across the tracks.
The plaintiff was thoroughly familiar with the crossing in question, and ordinarily used it three to five times a day. He testified that he never had had occasion to observe a train passing across New Castle Avenue when the flasher lights and warning bell were not working.
The plaintiff was proceeding south in his truck on the day in question. The Railroad's evidence is that in approaching the crossing from this direction, it is possible to see approximately 150 feet down the track to the right from the point where plaintiff testified he looked. On the other hand, the plaintiff testified that a loading platform and warehouse obstruct the view in this direction. A view of the scene of the accident in the course of the trial was had by the jury.
The plaintiff testified that as he approached the crossing, he looked to the right or west at a distance of approximately 40 or 50 yards from the crossing and saw no train approaching. He further testified that the warning signals were not in operation and that, in view of his knowledge of the crossing, itself, through his daily use thereof, he relied on the fact that the warnings were not operating. Thereafter, he did not see the train until just before it struck his truck. He shifted his truck into *425 second gear and proceeded into the crossing, relying upon the absence of warning signals and his failure to see any train approaching when he looked to his right.
On this showing and the view of the scene had by the jury, the trial judge submitted the issues to the jury which returned a verdict for the plaintiff in the amount of $25,000.
Following the filing of the Railroad's motion for a new trial, the trial judge, himself, viewed the scene of the accident and concluded to deny a new trial. The denial of a new trial was made upon the basis that the distances, the volume of traffic, the physical layout of the streets and tracks, and the age and intelligence of the plaintiff, posed a question for the jury as to whether or not his conduct was reasonable.
Initially, the Railroad argues that a verdict should have been directed in its favor by reason of the failure of the plaintiff to make out a prima facie case of negligence against it. We think, however, accepting the evidence offered by the plaintiff at its face value, that it would appear that the Railroad's warning system at the time was inoperative. Therefore, a finding of negligence on the part of the Railroad was justified.
The Railroad, however, primarily argues that the plaintiff was guilty of contributory negligence as a matter of law. The argument goes as follows: The plaintiff's own testimony shows that at a point 40 or 50 yards from the crossing he was proceeding at 18 miles per hour and that he then looked to his right and saw nothing. He did not thereafter look again to his right in reliance upon the absence of the warning signals maintained by the Railroad at its crossing. He testified that he could at any time have stopped his truck within five feet and that his hearing and eyesight were perfect. The Railroad, accordingly, argues that his failure to see the train approaching was an act of negligence on his part which bars his recovery.
The Railroad argues that a railroad crossing is a place of danger which must be recognized as such by persons crossing it, and that, accordingly, the failure of the plaintiff to observe the train at a time when he could have safely stopped his truck was, in itself, contributory negligence. The Railroad relies upon Tompkins v. Baltimore & O. Railroad Co., 7 Terry 156, 81 A.2d 288.
The Tompkins case, however, was a trial before the court without a jury, and had no element in it of the failure of warning signals maintained by the Railroad at the crossing to operate. Furthermore, the circumstances of the crossing were different. There was no audible warning system and no obstructions to view either up or down the track.
In any event, we think this case more analogous to Baltimore & O. Railroad Co. v. Hawke, 4 W.W.Harr. 25, 143 A. 27, in which the Supreme Court affirmed a judgment entered on a jury's verdict under somewhat similar circumstances. In the Hawke case the plaintiff had stopped pursuant to a red warning light to let a southbound train pass. The lights went out when the train cleared the crossing and he proceeded into the crossing and was struck by a northbound train concealed from his view by the first train. The court held that if warning signals are maintained, a traveler is entitled to rely upon them when they are not flashing a warning, provided that he does so in the exercise of due care and caution to see that which is there to be seen. Under the circumstances of the Hawke case, it was held that the plaintiff in that case had the right to presume from the fact that the warning lights went out that he could cross in safety.
The Hawke case is not dissimilar from the case at bar and, absent some showing that there was some other circumstance to put the plaintiff on notice that a train was approaching even though the warning signals were not operating, he was entitled to rely upon the nonoperation of the warning signals.
*426 The factual issue presented as to the exercise of due care and caution on the part of the plaintiff, under the circumstances, is a close and troublesome one. The jury had the benefit of a view of the physical circumstances of the crossing and of the obstructions to the view of a traveler using the crossing. This, coupled with a belief in the plaintiff's evidence that the warning system was inoperative, and the plaintiff's reliance upon that circumstance is sufficient, we think, to support the conclusion of the jury that the plaintiff proceeded with due care and caution on his part. It follows, therefore, that he is not guilty of contributory negligence as a matter of law.
The Railroad argues that its proof demonstrates, however, that it would have been a scientific impossibility for the warning signals not to operate since they are so designed and constructed that any malfunctions sets them off automatically. However, the system designed to insure the operation of the warning signals in the event of malfunction is a mechanical one, and it is, of course, common knowledge that mechanical devices oftentimes go awry. The safety device, therefore, built mechanically into the system could, itself, malfunction. In any event, it is the fact that the plaintiff produced testimony other than his own to the effect that the warning signals were not operating.
The Railroad complains of an instruction given by the trial judge to the jury to the effect that it is the law of this State that since a railroad crossing is a place of danger, the Railroad Company is bound to erect a system of warning signals so as to provide reasonable warning to persons about to cross its tracks. The jury was instructed that the type of warning which the Railroad is obligated to install depends upon the nature of the crossing and its physical surroundings.
This instruction is complained of on the basis that the plaintiff produced no evidence of any kind as to whether or not the crossing was improperly protected. The jury, however, viewed the crossing as a part of the plaintiff's evidence and the instruction given it was undoubtedly correct and did not prejudice the defendant with respect to the type of warning required to be given. We think that no prejudice resulted to the Railroad by reason of this instruction.
Finally, the Railroad argues that the verdict was so excessive as to require that it be set aside. The difficulty with this argument is that the proven life expectancy of the plaintiff, and his loss of earnings resulting from his injuries, fully support the verdict. While the verdict may seem high, it is not, as a matter of law, under the circumstances, excessive.
The judgment below is affirmed.
NOTES
[*] Subsequent to the entry of judgment and during the pendency of this appeal, the plaintiff died and his administrator was substituted as a party.
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742 S.W.2d 379 (1987)
James M. BRIDDLE, Appellant,
v.
The STATE of Texas, Appellee.
No. 68990.
Court of Criminal Appeals of Texas, En Banc.
September 23, 1987.
*380 Allen C. Isbell, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., & Winston E. Cochran, Jr. & Joe Bailey, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION
ONION, Presiding Judge.
Appellant was convicted of capital murder. After the jury found the appellant guilty and answered affirmatively the two special issues submitted under Article 37.071, V.A.C.C.P., the court imposed the death penalty as required by law. See Article 37.071, supra; V.T.C.A., Penal Code, §§ 12.31 and 19.03.
The indictment charged capital murder in two counts. In count one the indictment charged the capital murder of Bob Skeens while in the course of committing a robbery. *381 The second count of the indictment alleged the capital murder of Robert Banks while in the course of committing a robbery. Only the second count of the indictment was submitted to the jury.
Appellant does not challenge the sufficiency of the evidence to sustain the conviction nor the affirmative answers to the special issues submitted at the penalty stage of the trial.
Nine points of error are advanced by appellant. In two points he contends the trial court erred in excluding for cause two prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). In another point of error he claims the court erred in excluding a prospective juror because of her views on the burden of proof in a criminal case. In appellant's fourth point of error he contends the trial court erred in admitting his oral confession. In his fifth point he contends the prosecutor erred in argument at the penalty stage in attacking his court-appointed counsel. In three other points of error he complains of the admission into evidence of communications between him and his former wife while the marriage relation still existed. In his last point he complains of the admission of an unadjudicated extraneous offense of robbery at the penalty stage of the trial.
In order to place our discussion of appellant's points of error in proper perspective we briefly summarize the facts.
The State's chief witness was Linda Joyce Fletcher, appellant's former wife. The record reflects the couple married in California. On February 14, 1980, the couple began hitchhiking to Florida with a few clothes and $30.00. They were joined in Arizona by Pamela Perillo. On February 22, 1980, after reaching Houston the three were hitchhiking near the Astrodome when they were picked up by the alleged deceased, Robert Banks. Banks was in the process of moving to another house and the three hitchhikers assisted him in moving some of his belongings. Banks treated them to dinner. When Banks paid for the meal, Fletcher and Perillo observed he had several hundred dollars in his wallet, and Perillo told appellant about the money.
Appellant, his wife (Fletcher) and Perillo spent the night at Banks' house and then helped him move other belongings the next day. In the process the appellant discovered Banks had some guns. When Banks took a shower appellant telephoned a friend in California and invited him to come to Texas as he (appellant) "had a pigeon out here with lots of money and guns." Appellant proposed a robbery, but the California friend declined.
Banks then took his three guests to a carnival and rodeo at the Astrodome. There Perillo told appellant she wanted to kill Banks and appellant answered "Okay." He then went off to do some "planning," telling Perillo to relax when she agitated to "do it tonight." After the rodeo Banks and his guests went to dinner and returned to Banks' house where they met Bob Skeens, Banks' friend from Louisiana, who had arrived there in his green Volkswagen.
On Sunday, February 24, Banks and Skeens left the house to get coffee and doughnuts for everyone. While they were gone appellant armed himself with a shotgun and Perillo got a handgun. While awaiting the return of the two men appellant jumped up and down with excitement. When Banks and Skeens returned Perillo hid in the bedroom and appellant got inside a closet. He began to make a tapping sound. When Banks reached to open the closet door the appellant jumped out announcing "This is a robbery."
Skeens got down on the floor and pleaded for mercy. Banks came toward the appellant, who struck him in the face with the butt end of the shotgun. Perillo came out of her hiding place and told Banks to get on the floor, "that it wasn't any joke." Perillo obtained a machete and cut up some rope and then she and the appellant tied Banks and Skeens with rope. After they were bound appellant and Perillo took the wallets from the two. Appellant took $800.00 from Banks' wallet and waved it around saying "he had it." Appellant ransacked the bedroom, taking clothes and a backpack. Perillo found a cassette recorder *382 and camera. Appellant took Skeens into the bedroom and told Skeens that he (appellant) had killed five people and two more didn't matter. Fletcher, appellant's wife, did not see what happened to Skeens, but she did see appellant loop a rope around Banks' neck. Fletcher was then ordered to wait in Skeens' green Volkswagen. About 20 minutes later Perillo came to the car with the shotgun wrapped in a blanket. She also brought out a machete, handgun and other items. Appellant brought out the backpack and a rifle. They drove in the Volkswagen to Dallas, where they abandoned it and took a bus to Colorado.
When Banks failed to appear for work for two days, his supervisor went to Banks' house to investigate. A man with the supervisor looked in a window and saw a body. The police who arrived at the scene found the bodies of Banks and Skeens, each bounded and with a rope around the neck. Dr. Joseph Jachimczyk, the Chief Medical Examiner, testified that each died from asphyxia due to strangulation with a rope.
On March 3, 1980, Perillo gave a statement to Denver, Colorado police and a description of appellant. With her consent they entered a room at a hotel in Denver and found appellant, his wife and two boys. The backpack was found in the room.
A Houston detective went to Denver and interviewed appellant and obtained an oral confession in which he told of his participation in the alleged offense. He admitted putting a rope around Banks' neck and pulling on it with Perillo until Banks was unconscious. He admitted he took the wallets, several hundred dollars, the machete and shotgun. He maintained his wife (Fletcher) was outside the house during the entire incident.
Appellant initially asserts that the court erred in excluding for cause, over objection, prospective juror, Robert E. Goodwin, who asserted his general opposition to the death penalty but was not disqualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).
Goodwin made clear at the outset of the voir dire examination that he was "against" the death penalty although he did not fault the system for having established such a penalty. It was a deep-seated feeling that he had thought about. When asked by the court if there was any reason that would preclude him from devoting his full attention to the case, Goodwin replied, "Well ... the only thing would be the death penalty I'm against that." When asked by the court if he could consider the infliction of the death penalty in a proper case, he answered that he did not see how his feelings could be altered. When asked about the special issues that could be submitted in a capital murder case, Goodwin told the prosecutor he did not want to directly contribute to "the death" and his conscience would bother him. When asked if he would vote "no" to a special issue because of his feelings against the death penalty, Goodwin stated he didn't know what he would do at that time. Upon further interrogation Goodwin told the prosecutor that he "probably would" vote "no" to a special issue because of his feelings about the death penalty, and later stated that he would do just that because of the capital punishment involved. Goodwin then told the defense counsel he would "probably vote no" to a special issue because he did not want to contribute to the death penalty, but he "did not know when it came right down to it." Subsequently, however, Goodwin told the prosecutor he would vote "no" to a special issue if he "knew it would result in the death penalty, yes." The court sustained the challenge for cause.
In Witherspoon v. Illinois, supra, the United States Supreme Court held that a prospective juror may not be excluded by the trial court for cause unless that person makes it absolutely and unmistakably clear that 1) he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, or 2) that the prospective juror's attitude towards the death penalty would prevent him from making an impartial decision as to the defendant's guilt.
In Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980), the question *383 presented was whether Texas contravened the Sixth and Fourteenth Amendments of the United States Constitution as construed and applied in Witherspoon when it excluded members of the venire from jury service because they were unable to state under oath as prescribed by V.T.C.A., Penal Code, § 12.31(b), that the mandatory penalty of death or life imprisonment in a capital murder case would not affect their deliberations on any issue of fact.
The United States Supreme Court reversed the Adams conviction and set aside the death penalty imposed holding that Witherspoon and said § 12.31(b) may not coexist as separate and independent bases for excluding prospective jurors so as to permit exclusion under § 12.31(b) on a ground broader than permitted by Witherspoon. The Court noted, however, that although the State could, consistent with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views in capital punishment are such as to make them unable to follow the law or obey their oaths.
Adams at 448 U.S. at p. 46, 100 S.Ct. at p. 2527, said:
"If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.
* * * * * *
"We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths." Adams, 448 U.S. at p. 52, 100 S.Ct. at p. 2529.
The standard set out in Adams was as follows:
"This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the fact impartially and conscientiously apply the law as charged by the court." 448 U.S. at 45, 100 S.Ct. at 2526. (Emphasis in original.)
In Williams v. State, 622 S.W.2d 116, 118 (Tex.Cr.App.1981), it was held that certain veniremen whose views on the death penalty would have prevented or substantially impaired their performance as jurors in accordance with their instructions were properly excused in light of Witherspoon and Adams. See also Bass v. State, 622 S.W.2d 101, 108 (Tex.Cr.App.1981); Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981); Griffin v. State, 665 S.W.2d 762 (Tex.Cr. App.1983); Smith v. State, 676 S.W.2d 379 (Tex.Cr.App.1984).
Still further in Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the Adams standard was declared proper and preferable to the strict standards of Witherspoon. See also Bell v. State, 707 S.W.2d 52, 66 (Tex.Cr.App.1986). Witherspoon is no longer the standard for determining whether a challenge for cause by the State has been improperly granted. Sharp v. State, 707 S.W.2d 611, 620 (Tex. Cr.App.1986).
In Wainwright v. Witt, supra, the United States Supreme Court held in that case that in determining whether a prospective juror could be excluded for cause because of her views on capital punishment, the Court of Appeals, at minimum, erred in focusing unduly on lack of clarity of questioning of prospective jurors, and in focusing on whether her answers indicated that she would "automatically" vote against the death penalty.
There the Court wrote:
"We therefore take this opportunity to clarify our decision in Witherspoon and to reaffirm the above-quoted standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment.
*384 That standard is whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' We note that, in addition to dispensing with Witherspoon's reference to `automatic' decisionmaking, this standard likewise does not require that a juror's bias be proved with `unmistakable clarity.' This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made `unmistakably clear'; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. For reasons that will be developed more fully infra, this is why deference must be paid to the trial judge who sees and hears the juror."[1] (Emphasis supplied.)
It is also to be observed that Article 35.16(b), V.A.C.C.P., provides in part:
"(b) A challenge for cause may be made by the State for any of the following reasons:
"(3) That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." (Emphasis supplied.)
In fact, bias against the range of punishment applicable by law is a proper area of inquiry for both challenges for cause and peremptory challenges. Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App.1979); Martinez v. State, 588 S.W.2d 954 (Tex.Cr.App. 1979).
We cannot conclude the court erred in sustaining the challenge for cause to prospective juror Goodwin. See Carter v. State, 717 S.W.2d 60 (Tex.Cr.App.1986).
Next appellant contends the trial court erred in excusing for cause, over objection, prospective juror Beatrice Brock, in light of Witherspoon v. Illinois, supra.
Appellant candidly characterizes Brock as a vacillating prospective juror. This is perhaps an understatement. In answer to the court's questions she stated she had no objections to the death penalty because "that person is getting what he deserves." Soon, however, she explained she didn't "particularly believe in capital punishment really." She believed a person should be punished "but as far as getting the electric chair ... no." She stated she could find a person guilty but could not give the death penalty as punishment.
She told the prosecutor that to protect her personal feelings about the death penalty she would automatically vote "no" to one or the other of the special issues submitted. When asked if she would do that if she felt from the evidence the answers to the special issues should be "yes," she responded, "Well, in that case I would probably vote yes. In that case, I probably would." When the prosecutor returned to the same question later she answered, "Yes, I would vote no to one [special issue] because of my feelings." She then told the prosecutor that no matter what the facts were she would vote "no" to one or the other of the special issues to keep the judge from sentencing someone to die.
In response to interrogation by appellant's counsel she stated she could answer the special issues "yes" if the defendant "poisoned his own child or something like that," and that she could answer the special issues affirmatively if it was her duty *385 under the law and evidence. When then asked by defense counsel if she could affirmatively answer the second special issue on future dangerousness if it was supported by the evidence she replied, "I don't know." Later Brock stated she wouldn't want to but she could answer the second special issue affirmatively although "it would be a heavy burden because of my beliefs ... I don't believe in capital punishment."
However, upon reexamination by the prosecutor she again stated that she would answer one or the other special issue "no" to avoid the death penalty from being imposed because her feelings against the death penalty were "that strong" and that she felt in her heart that is what she would do. The record then reflects:
"Q. (by prosecutor) Just for the purposes of the record, if the evidence showed beyond a reasonable doubt that the answer should be yes to question No. 1 and question No. 2, because of your religious or moral feelings against the inflection of the death penalty, you would answer no to one of those two questions so the judge would have to sentence him to die? You would not participate in a man being sentenced to the death penalty?
"A. Yes, I would have to.
"Q. You would answer no?
"A. I would."
The court sustained the State's challenge for cause. The court explained from its observations and own questions that the prospective juror was confused in her answers, replying to the same question with different answers, that it (the court) could not ascertain that the prospective juror "could honestly find the facts and answer the questions in an affirmative manner if she was convinced beyond a reasonable doubt" because she was so strongly opposed to capital punishment. The court, in effect, further stated it had the definite impression that the prospective juror would be unable to impartially apply the law.
Deference must be paid to the trial judge who sees and hears the juror. Wainwright v. Witt, supra. For that reason and in light of the authorities earlier discussed in the preceding point of error, we cannot conclude that the trial court erred in sustaining the challenge for cause to prospective juror Brock. The point of error is overruled.
In another point of error appellant contends the court erred in sustaining the State's challenge for cause to prospective juror Joann Zimmer.
The basis for the challenge appears to be founded on Article 35.16(b)(3), V.A.C.C.P., which provides for the exclusion of a venireman or prospective juror who "has a bias or prejudice against any phase of the law upon which the state is entitled to rely for conviction or punishment." It is the State's position that the prospective juror would hold the State to a greater burden of proof on the issue of guilt in a capital murder case than beyond a reasonable doubt.
The prosecutor explained the burden of proof in a criminal case to Zimmer, informing her the burden (beyond a reasonable doubt) was the same as in Municipal Court and in a capital murder case. Zimmer stated she would require proof "beyond all doubt" in a capital murder. In response to the court's inquiry whether she could follow the court's instructions as to the law on the burden of proof on the issue of guilt, she responded, "I still feel the same way." Later she added, "I am confused, I guess that I would need to be convinced beyond all doubt. That's what I want to say."
The defense counsel sought to rehabilitate the prospective juror by contrasting the burden of proof in a civil case with the burden of proof in a criminal case, then discussing circumstantial evidence with Zimmer, and eliciting from her that she would vote "guilty" if the State satisfied its burden "to a moral certainty beyond a reasonable doubt."
The prosecutor again inquired if Zimmer could follow the court's instruction on the burden of proof. She responded that she could if "beyond a reasonable doubt" and *386 "beyond all doubt" were the same thing. When it was made clear that it was not, Zimmer made known that she, as a juror, would require proof "beyond all doubt." Her final position was that she would required a higher standard of proof than the law requires. The court did not err in sustaining the challenge for cause. See and cf. Bodde v. State, 568 S.W.2d 344, 349 (Tex.Cr.App.1978), cert. den. 440 U.S. 968, 99 S. Ct. 1520, 59 L. Ed. 2d 784 and cases there cited. See also Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983); Franklin v. State, 693 S.W.2d 420, 424 (Tex.Cr. App.1985).
The point of error is overruled.
Appellant urges the court erred in admitting his oral confession in Denver, Colorado to Houston Police Detective Vernon West because it did not comply with Article 38.22, § 3(c), V.A.C.C.P., in existence at the time. Appellant insists that the fact that Nina Skeens Bryant found a machete in her deceased son's car after recovering it from the Dallas Police Department did not serve as "corroboration" and justify the admission of the oral confession.
West testified he investigated the scene of the homicide on February 27, 1980, and viewed the bodies. On March 4, 1980, he received a phone call from the Denver Police Department in which it was learned that Pamela Perillo had given a statement and had informed the Denver Police the green Volkswagen they had taken after the killings had been left in a Holiday Inn parking garage in Dallas near the bus station. Officer West called the Dallas Police Department and gave them this information. On March 4, 1980, Dallas Police Officer Michael Ramsey found the green Volkswagen and secured it. Dallas Police Officer H.O. Ford, a 17-year veteran, made an inventory search and recovered a shotgun, but he denied looking under the seats. The automobile was impounded. At 6:30 p.m. on March 4, 1980, Officer West left Houston for Denver, Colorado, arriving about 9:30 p.m. At 11 p.m. he began to interview the appellant, who was in custody in Denver. West gave the appellant his Miranda warnings, etc. Appellant refused to give a written confession to West, but made an oral confession in which appellant detailed how he, his wife, and Petrillo encountered the deceased Banks, the events that followed, the flight to Dallas in Skeen's green Volkswagen, the abandonment of the car and the taking of the bus to Denver. In the course of his oral confession appellant related how Petrillo obtained a machete which was used to cut the rope in order to tie the two men, and how the machete and the shotgun were taken along with the Volkswagen when they fled to Dallas. He related that the shotgun and the machete were left in the green Volkswagen.
Mrs. Nina Skeens Bryant testified that Bob Skeens, who had been killed, was her son, that she had been called by the Dallas Police Department and asked to claim her son's car which was then in the police pound. She went to Dallas and obtained the car, and on March 29, 1980, she found a machete under the front seat, between the springs and the seat; that she called an assistant district attorney in Houston and told him of her discovery. She had no idea as to whom the machete belonged and did not know of the oral confession. At trial the machete was positively identified by Robert Banks' brother as belonging to Banks. The machete was shown to have been used to cut rope to tie up the men, and was later stolen.
Article 38.22, § 3(c), V.A.C.C.P., in effect at the time, provided:
"Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed."
As a general rule oral confessions are not admissible. Jimmerson v. State, 561 S.W.2d 5 (Tex.Cr.App.1978); McGilvery v. State, 533 S.W.2d 24 (Tex.Cr.App.1976); Smith v. State, 514 S.W.2d 749, 752 (Tex. Cr.App.1974); Pierson v. State, 168 S.W.2d 256, 258-259 (Tex.Cr.App.1943). On this the State and appellant both agree. The above quoted statute provided an exception *387 to the general rule. As to the application of the exception, the State and the appellant express different views.
The State cites Valtiero v. State, 219 S.W.2d 73, 79 (Tex.Cr.App.1949), for the proposition that the statutory reference to finding physical evidence is "illustrative only, and not limitations on the statements which conduce to establish guilt, and which are found to be true." The State argues that appellant's oral confession was admissible because it identified the machete as both stolen property and as an instrument used in the commission of the alleged crime.
In Valtiero, supra, where a hat belonging to the victim was discovered by following the defendant's directions, this Court wrote:
"The facts here presented demonstrate that facts and circumstances may be stated by an accused which unquestionably are inculpatory and conduce to establish his guilt, and yet neither lead to the recovery of stolen property, or the instrument with which the offense was committed."
In McGilvery v. State, 533 S.W.2d 24, 26 (Tex.Cr.App.1976), this Court wrote in part:
"When a defendant's in-custody statement of facts or circumstances which conduce to establish his guilt is found to be true, the statute permits introduction of the statement at trial. The facts or circumstances stated must be shown to conduce to establish guilt by showing the statement led to the discovery of items or information not previously discovered by the State and must be incriminating. Chase v. State, Tex.Cr.App., 508 S.W.2d 605, cert. denied, 419 U.S. 840, 95 S. Ct. 71, 42 L. Ed. 2d 68 (1974); Ashley v. State, Tex.Cr.App., 362 S.W.2d 847, cert. denied, 372 U.S. 956, 83 S. Ct. 955, 10 L. Ed. 2d 10 (1963); cf. Smith v. State, Tex.Cr. App., 514 S.W.2d 749."
Citing McGilvery, supra, Shelton v. State, 328 S.W.2d 445 (Tex.Cr.App.1959), and Chase, supra, appellant argues that (1) the facts must be found to be true, (2) must be incriminating and (3) must be found as a result of the defendant's oral statement. Appellant argues that appellant's oral statement did not lead to the discovery of the stolen machete, that Mrs. Bryant found the machete independent of the oral statement. Appellant argues that if the items or information are known to the police before an oral confession or statement is given the statement is not admissible. McBride v. State, 506 S.W.2d 887 (Tex.Cr. App.1975); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974); Gifford v. State, 630 S.W.2d 387 (Tex.App.-Austin 1982). Appellant then argues that if stolen property is discovered after an oral statement but not as a result of the oral statement, it is not admissible either.
The State calls our attention to several cases. In Ashley and Lima v. State, 362 S.W.2d 847, 851 (Tex.Cr.App.1962), where the conviction was set aside on other grounds, 319 F.2d 80 (5th Cir.1963), the defendants were jointly tried. Ashley and Lima were apprehended in New York after fleeing Houston in the deceased's car. When an F.B.I. agent emptied Lima's purse on a desk, Lima identified some keys as being the keys to the deceased's automobile. Up until then the agent "had no knowledge concerning the keys." This Court reasoned that Lima's oral statements were admissible under then Article 727, V.A.C.C.P. (1925), as an oral statement because the keys fit the ignition of the deceased's Lincoln automobile which was in police custody before Lima's arrest, and showed that the automobile had recently been under the control and in possession of the defendants. The Court cited Valtiero with approval.
In McGilvery, supra, the defendant remarked to a fellow prisoner "I didn't know the other dude was going to kill the lady." The fellow inmate reported this to the police who were surprised that more than one person was involved. Further lab tests were conducted and it was verified that at least two men had raped the victim. The accused's statement led to the discovery of information previously unknown which proved to be true and which proved incriminating. It was held admissible.
*388 In Chase the appellant orally confessed to the murder, explaining that the plywood board found with the body was a table top from his brother's room. Three weeks later the police took the board to the said room and found it fit to the wall as described by appellant. The hinges on the board matched the holes on the wall and the metal eye hooks on the board could be hooked to the chains on the wall. The origin of the plywood board was unknown to the police prior to the defendant's statement. The oral statement was held admissible.
We know from Valtiero that the example given in the statute is illustrative only and not a limitation on the statements which conduce to establish guilt and shown to be true. Some case law indicates the oral confession or statement must lead to the recovery of the items or information before the oral confession or statement is admissible. The statute plainly requires only the statement asserts "facts or circumstances that are found to be true and which conduce to establish the guilt of the accused." The statute places no limitation upon the manner in which the facts asserted are found to be true. If a defendant orally confesses to the police to a murder and states he has thrown the murder weapon, a pistol, in a certain well, and the police search the well and find the pistol, whose location was previously unknown to them, there is no problem with the admissibility of the oral confession. Suppose, however, the police search the well and do not find the pistol, but on the next day a passing neighbor, who knows nothing of the oral confession, dips the bucket in the well and it comes up with the pistol, which he turns over to the police. The pistol is identified as the murder weapon. Can it be said the oral confession is not admissible because it did not lead to the recovery of the pistol by the police or its agents? The finding of the pistol by the passing neighbor supports the truth of the facts asserted by the defendant and conduces to establish his guilt, and establishes the reliability of the confession which is the concern of the statute involved.
We conclude that the finding of the machete by Mrs. Bryant under the circumstances described supported the facts asserted by the appellant and conduced to establish his guilt. The requirements of the statute were met. The court did not err in admitting the oral confession. The point of error is overruled. We need not determine whether in light of all the other evidence in the record whether the admission of the oral confession was harmless error beyond a reasonable doubt.
Appellant also contends the prosecutor committed fundamental error in his jury argument at the penalty stage of the trial "by attacking the noble office and function of an appointed lawyer defending a person accused of a capital crime."
The complained of argument reads:
"You are here because he has put you here. That's why we are all assembled here. Mr. Thomas [defense counsel] is right when he tells you that we're all advocates. They're doing their job. Somebody has to represent them, but it doesn't have to be me. I will tell you right now that I will not ever represent anybody like that. I probably could make a lot more money by moving my chair on the other side of that thing, but I will not. I may not become rich down here, but I feel good about what I do even though they may think it's just another case. It's not with me. I feel good about what I do. I feel good about these families over here and the people I represent. There have been times during the course of this trial when I wasn't feeling very well. In fact I was sick as a dog. I hope that didn't affect my temperament such that I may have done something that might have been offensive to you...."
There was no objection to such argument nor was any other form of relief requested.
Prior to the now complained of argument appellant's attorney Thomas had argued to the jury at the penalty stage of trial:
"It is now your job to answer these questions. This is your case. It is not my business. I'm an advocate. Pat McKenna [prosecutor] is an advocate. *389 After you get out of here, you will remember this the rest of your life. Pat McKenna and Al Thomas will probably try other cases together until they leave the DA's office. What I am saying is that it's your case not Pat McKenna's and not Al Thomas' and not Jim Sims'. It is your case to do whatever you want to do with it."
Later appellant's counsel, Jim Sims, argued to the jury prior to the complained of argument:
"As Mr. McKenna has told you and Mr. Thomas has told you, lawyers are advocates, advocates with a position. There are no victors here. There certainly would never be a victory for the State or for the families of the victims or for the defense lawyers or for the defendant himself. Mr. Thomas and I were appointed by the court to represent Mr. James Michael Briddle. It was something we didn't seek out. It was something that we didn't want to do. No one wants to be involved on this type of case because it is a life-and-death, a life-and-death judgment that we are a part of. That is something that I will have to live with as a lawyer for the remainder of my professional career. It's a heavy burden."
The argument of the prosecutor was obviously in response to the inference left by defense counsel argument that it was an important case for the jurors but just another for the prosecutor who would go on trying cases until he left the district attorney's office. The argument, as the State concedes, should not have been made and was improper, but does the unobjected to argument in the context in which it was made at the penalty stage of the trial call for reversal?
The general rule is that any impropriety in the prosecutorial argument is waived by a defendant's failure to make a proper and timely objection. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982); Sanchez v. State, 589 S.W.2d 422 (Tex.Cr. App.1979). An exception exists where the prosecutor's argument is so prejudicial that an instruction to disregard will not cure the harm. Romo v. State, supra; Smith v. State, 541 S.W.2d 831 (Tex.Cr.App.1976); Rodriguez v. State, 530 S.W.2d 944 (Tex. Cr.App.1975).
Appellant calls attention to Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974), and Bray v. State, 478 S.W.2d 89 (Tex.Cr. App.1972), in both of which the conviction was reversed because of similar jury argument. In Boyde the prosecutor argued that defense counsel had insinuated that one day the prosecutor would be "out on the other side" and added "you'll never find me defending criminals in this or any other county. You will never find me accepting stolen money, stolen merchandise as a fee. You will never find me standing up here and trying to get a murder...." The objection was overruled and the murder conviction was reversed.
In Bray the prosecutor argued that he was grateful to be employed by the people of Dallas County "and not the likes of him and ... not representing this sort of thing... I am grateful that I don't have to make my living that way ... make my living representing a man who first set up the robbery...." See also Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975) (wherein the prosecutor argued that he had "taken a solemn oath to God to seek justice. You judge whether or not we have done it. No such oath bears on either of these [defense] attorneys.") Both Bray and Lewis resulted in reversal despite the fact that the objections were not properly preserved, the court holding that an instruction to disregard would not have cured the prejudicial effect of the statement.
In Todd v. State, 598 S.W.2d 286, 296, 297 (Tex.Cr.App.1980), it was stated:
"It is settled that the approved general areas of jury argument, within which all proper arguments must fall re (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Dunbar v. State, 551 S.W.2d 382 (Tex.Cr.App.1977); Alejandro v. State, 493 S.W.2d 230 (Tex. Cr.App.1973). Even when an argument exceeds the permissible bounds of the *390 above areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused into the trial proceeding. Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App. 1972)." (Emphasis added.)
In Borgen v. State, 672 S.W.2d 456 (Tex. Cr.App.1984), this Court noted that almost every right, constitutional or statutory, may be waived by failure to object. In Borgen this Court held that the remark by the prosecutor, unobjected to by the defendant, that "as long as lawyers are for hire, justice is for sale" was not so prejudicial under the circumstances as to call for the reversal of the sexual abuse conviction or to reflect a violation of due process, though the argument was improper and the phrase should not have been used.
Likewise in the instant case reviewing the argument in light of the record as a whole, we do not find the unobjected to argument to call for reversal or to reflect a violation of due process even though the argument was not proper and should not have been made.
The point of error is overruled.
In three points of error appellant contends the trial court erred in permitting his former wife, Linda Fletcher (1) to testify that during the marriage he told her he wanted to be like Charles Manson and have women groupies, (2) to testify that during the marriage he told her he wanted her to have sex with truck drivers in exchange for rides, and (3) to testify that during the marriage he told her he went into the bathroom on the bus and threw the deceased's credit cards out the window.
The record shows that the appellant and the witness were married on June 12, 1979, and were married at the time when the alleged offense occurred. Subsequently she filed a petition in California to nullify the marriage, and a final judgment dissolving the marriage was entered on April 13, 1981. At the time of trial the witness was no longer appellant's wife. She had received five years, probated, for aggravated robbery growing out of the same transaction.
Appellant relies upon the provisions of Article 38.11, V.A.C.C.P.,[2] in effect at the time of appellant's trial in support of his three points of error. The first section of the statute creates a privilege as to confidential communications and the second section creates an absolute disqualification with certain exceptions. This distinction must be kept carefully in mind.[3]
Under Article 38.11, supra, when the witness is still the spouse of the defendant the witness is absolutely disqualified with certain exceptions. This disqualification cannot be waived. See Stewart v. State, 587 S.W.2d 148, 154 (Tex.Cr.App. 1979). Where the witness is the ex-wife or ex-husband of the defendant the witness is no longer disqualified and is competent to testify, Robinson v. State, 487 S.W.2d 757 (Tex.Cr.App.1972), and Bear v. State, 612 S.W.2d 931, 932 (Tex.Cr.App.1981). The privilege in the first section of the statute remains after the marriage relation ceases with an exception. Unlike the absolute disqualification the privilege can be waived. Johnson v. State, 95 Tex. Crim. 483, 255 S.W. 416, 417 (1923); Bruni v. State, 669 S.W.2d 829 (Tex.App.-Austin 1984).
*391 In the instant case the witness, Linda Fletcher, no longer the wife of the appellant, was a competent witness for the State. The privilege against communications during marriage which appellant could have claimed was waived when he did not object to the interrogation of his former wife in the three instances made the basis of three points of error.[4] Appellant's points of error are overruled.
Appellant further complains the court erred at the penalty stage of this capital murder prosecution in admitting testimony of an unadjudicated, extraneous offense of robbery which occurred in California.
In Smith v. State, 676 S.W.2d 379 (Tex. Cr.App.1984), this Court wrote:
Article 37.071(a), V.A.C.C.P., provides:
"`... In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.' (Emphasis supplied.)8
"Thus the trial court at the penalty stage of a capital murder trial has wide discretion in admitting or excluding evidence. Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977); Felder v. State, 564 S.W.2d 776 (Tex.Cr.App.1978), cert. den. 440 U.S. 950, 99 S. Ct. 1433, 59 L. Ed. 2d 640; Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979); McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Sanne v. State, 609 S.W.2d 762 (Tex.Cr. App.1980). See also Green v. State, 587 S.W.2d 167 (Tex.Cr.App.1979).
"However, it has been said that this discretion extends only to the question of the relevance of the facts sought to be proved, and that Article 37.071(a), supra, does not alter the rules of evidence insofar as the manner of proof is concerned. See Porter v. State, 578 S.W.2d 742, 748 (Tex.Cr.App.1979).
"It has been consistently held that evidence of unadjudicated extraneous offenses are admissible at the penalty stage of a capital murder trial absent showing of unfair surprise. Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980), cert. den. 449 U.S. 893, 101 S. Ct. 256, 66 L. Ed. 2d 121; Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980); Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr. App.1982). And such admission does not render the proceedings fundamentally unfair or deprive an accused of due process and equal protections of the laws. Williams v. State, 622 S.W.2d 116 (Tex. Cr.App.1982), cert. den. 455 U.S. 1008, 102 S. Ct. 1646, 71 L. Ed. 2d 876. See also Garcia v. State, 581 S.W.2d 168 (Tex.Cr. App.1979).
"In Green v. State, 587 S.W.2d 167 (Tex.Cr.App.1979), it was held under Article 37.071, supra, that it was within the discretion of the court to admit the testimony of a deputy sheriff showing details of a similar murder committed approximately one month after the charged offense including verbal description of the body of the subsequent victim.
"And in Davis v. State, 597 S.W.2d 358 (Tex.Cr.App.1980), cert. den. 101 S. Ct. 388, this court held that it was not error in a capital murder trial for the court, after admitting four prior convictions of the defendant, to permit the State to call witnesses to testify as to the details of *392 the events which formed the bases of the prior convictions."
We perceive no error in the admission of testimony concerning the California robbery at the penalty stage of the instant trial. The point of error is overruled.
The judgment is affirmed.
TEAGUE, J., concurs in the result.
CLINTON, Judge, concurring.
Having just recently argued against our causing the Court to adopt as state law a federal habeas statutory rule for reviewing substantial federal questions raised in state convictions, see Clark v. State, 717 S.W.2d 910 (Tex.Cr.App.1986) (opinion joining judgment, at 920), I do not reiterate my objections. Suffice to say that often "we but engage in an amiable fiction by pretending to give deference to a determination never made," id., at 921.
The instant cause presents contrasting situations involving voir dire examination of venirepersons, namely Robert E. Goodwin and Beatrice Brock. Yet the Court seem to make the same analysis in each.
From the Court's resume of examination of Godwin there is no indication that the trial judge was troubled enough by his answers to resort to an examination of demeanor, tone and the like in order to decide the challenge for cause. Thus it is not a matter of paying deference to the trial judge, but whether the ruling made for the court is correct. Given his answers I agree the trial court did not err.
On the other hand Brock is characterized as a "vacillating" venireperson. In her case after the trial court sustained the challenge for cause by the State, the judge mentioned observations made as she answered questions and "confusion" in her answers leading to a stated impression of inability of Brock to perform her duties as a juror because of her strong views against capital punishment. Since in my judgment the record sustains that impression, again I agree the trial court did not err.
As to points of error six, seven and eight pertaining to testimony of Linda Fletcher, at page 7, in note 4, the Court describes a hearing on appellant's motion in limine held by the trial court just before Fletcher would take the stand to testify at the first stage of trial. Manifestly, counsel was well aware of the marital communications privilege. The prosecutor gave assurances that he had instructed Fletcher to restrict her testimony to conversations with appellant in the presence of a third party, and he was prepared to demonstrate that was true in each instance; counsel for appellant seems to have accepted those assurances, requesting the showing be made in advance; but the trial judge demurred. In that context and apparently for those reasons the court overruled the motionin effect it became moot.
From my reading of relevant portions of the statement of facts it appears that the prosecution did not show that a third party was present when the three statements complained of were made. Considering the bizarre nature of the first two and the inculpatory character of the third, one is at loss to comprehend an utter failure to object on either ground available, or both. Like other privileges, this one is given special protection. See Tex.R.Cr.Evid. Rules 104(a), 504(1) and 1101(b). Nevertheless, prior case law and now Rule 504(1)(c) make clear this privilege must be claimed.
With those observations I join the judgment of the Court.
NOTES
[1] Texas cases have also emphasized the deference that must be given to trial court's rulings on voir dire examination where the court had heard the prospective juror's tone of voice and observed his demeanor, etc. See Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1974); Villareal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978); Garza v. State, 622 S.W.2d 85, 92 (Tex.Cr.App. 1981); Smith v. State, 683 S.W.2d 393, n. 5 (Tex.Cr.App.1984).
[2] Article 38.11, V.A.C.C.P. (Husband or wife as witness), provides in pertinent part:
"Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married. Neither husband nor wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communication made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or by the husband to the wife goes to extenuate or justify the offense. The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution."
[3] A review of the history of the statute will clarify the distinction. See 3 L. Simkins, Texas Family Law with Forms, § 33.2 at 656-58 (Speer's 5th Ed.1976).
[4] Prior to the testimony by Linda Fletcher, appellant did object that she was absolutely disqualified from testifying because she was his wife. Evidence of the annulment was offered and the court ruled she was a competent witness. When appellant's motion in limine to prevent testimony as to communications between husband and wife while the marriage relation existed was presented to the court, appellant asked that no such testimony be permitted unless it was shown that a third person was present. The prosecutor stated he had instructed the witness not to go into such conversations unless a third person was present, and that before going into those matters he was prepared to show that a third person was present, and that appellant would still have his right to object. The motion in limine was overruled. Even if it had been granted, it still was incumbent upon the appellant to timely object to each instance where he thought the privilege was violated. This he did not do.
8 "In Earvin v. State, 582 S.W.2d 794, 799 (Tex.Cr.App.1979), this court wrote:
"`Under Article 37.071(a), V.A.C.C.P., the court is authorized to admit any evidence which is relevant to the punishment, and the jury is authorized to consider this relevant evidence along with that adduced at the guilt-innocence phase of the trial.'"
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742 S.W.2d 695 (1988)
Ronald Curtis CHAMBERS, Appellant,
v.
The STATE of Texas, Appellee.
No. 69609.
Court of Criminal Appeals of Texas, En Banc.
January 6, 1988.
Richard Kristin Weaver, Richard Alan Anderson, Dallas, for appellant.
John Vance, Dist. Atty. and Jeffrey B. Keck, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
CAMPBELL, Judge.
Appellant was convicted of capital murder and assessed the death penalty. Appellant raised thirteen points of error on appeal; however, the nature of points one through seven cause us to restrict our discussion to these points.
In the first seven points of error, appellant argues that he was denied a fair trial under the Fourteenth Amendment due to the prosecutor's use of peremptory challenges to strike all of the blacks from the jury panel. Appellant relies on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In Batson, the Supreme Court set out the basic requirements for such a challenge:
To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Id. 106 S.Ct. at 1723 (citations omitted). The trial court must then rule whether *696 defendant's showing constitutes a prima facie case of discrimination. Id. If the trial court determines that a prima facie case has been made, the burden shifts to the State to come forward with a neutral explanation for its use of peremptory strikes. Id. After the neutral explanation is offered, the trial court makes a final determination as to whether purposeful discrimination has been shown. Id. at 1723-24.
The instant case was tried before the Supreme Court announced Batson, supra. However, Batson has been applied to cases which were pending on appeal at the time of that decision. Griffith v. Kentucky, ___ U.S. ___, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987).
For cases which fit within the window of time described in Griffith, supra, this Court has limited its inquiry to whether the defendant preserved the error in accord with the guidelines described in Henry v. State, 729 S.W.2d 732, 736 (Tex. Cr.App.1987). E.g., DeBlanc v. State, 732 S.W.2d 640 (Tex.Cr.App.1987). In the instant case, appellant perfected the record by noting the race of each venireman. In each instance where the State exercised a peremptory challenge to excuse a black venireman, appellant objected, asked for a racially neutral explanation of the State's challenge, and obtained an adverse ruling from the trial judge. Finally, appellant proffered that if he could examine the prosecutor, he expected to prove that each challenge was racially motivated. Appellant's preservation of error meets the standard provided in Henry, supra, and the State concedes that appellant properly preserved the issue.
Appellant argues that his proffer of proof that the prosecutor challenged the three black veniremen for improper reasons under Batson binds this Court to reach the conclusion that the veniremen were improperly challenged. In support of this proposition, he cites Stewart v. State, 686 S.W.2d 118 (Tex.Cr.App.1984), and Johnson v. State, 527 S.W.2d 525 (Tex.Cr. App.1975). We feel that appellant's reliance on these cases for this assertion is misplaced. We read those cases to hold that when evidence is excluded, counsel must make a proper proffer of proof to preserve the question for appellate review. Stewart, supra, and Johnson, supra, do not require us to view offers of proof as dispositive findings of fact. Appellant's contention that we are bound by his assertion that there was racial motivation in the prosecutor's actions is overruled. Batson, supra, places such a determination in the hands of the trial judge.
Because the trial court did not have the benefit of the Supreme Court's opinion in Batson, we feel it is now appropriate to remand the case so that the trial court may have the opportunity to consider first whether appellant had made a prima facie showing of discrimination, and then if so, whether the State had a neutral explanation for the strikes. If the State is unable to explain properly its use of peremptory strikes on minority members of the prospective jury panel such that the trial court concludes that purposeful discrimination was the sole motivating factor behind any of the State's strikes, then the trial court should enter this finding in his findings of fact and conclusions of law. Such findings of fact and conclusions of law shall be forwarded to this Court for review.
DeBlanc, supra at 642.
This appeal is hereby abated with instructions to the trial court to conduct further proceedings not inconsistent with this opinion and Batson. The trial court shall forward the record of those proceedings and findings of fact and conclusions of law to this Court. DeBlanc, supra at 642.
It is so ordered.
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189 A.2d 664 (1963)
Arthur J. L. HUTCHINSON, Plaintiff,
v.
The FISH ENGINEERING CORPORATION, a Delaware corporation, and Pacific Northwest Pipeline Corporation, a Delaware corporation, Doe One, Doe Two, Doe Three, Doe Four, Doe Five, and Doe Six, Defendants.
Court of Chancery of Delaware, New Castle.
February 19, 1963.
*665 Herbert L. Cobin, of Coxe, Booker, Walls & Cobin, Wilmington, and Leonard J. Meyberg of Los Angeles for plaintiff.
Arthur G. Connolly and Januar D. Bove, Jr., of Connolly, Bove & Lodge, Wilmington, for defendant, The Fish Engineering Corporation.
John VanBrunt, Jr., of Killoran & VanBrunt, Wilmington, for defendant, Pacific Northwest Pipeline Corporation.
SEITZ, Chancellor.
Plaintiff's claims are that the managing officers of defendant Fish Company took advantage of a confidential relationship purportedly existing between themselves and plaintiff and in effect defrauded him in an effort to obtain for Fish Company title to some six patents which allegedly belong to him. The relief primarily sought is rescission and a declaration that title is in plaintiff or, in the alternative, recovery of the reasonable value of each such patent. Plaintiff seeks as further relief an accounting both of damages purportedly suffered by plaintiff as the result of an alleged wrongful exercise of dominion and control by the two corporate defendants and of profits allegedly received by them. The defendant Pacific is joined because it is alleged to have knowingly participated profitably in the improper action taken by the defendant Fish Company.
At an earlier stage this court denied defendants' motion to dismiss the complaint on the grounds of laches or limitations. See Hutchinson v. Fish Engineering Corp. (Del.Ch.), 153 A.2d 594; appeal dismissed, Del., 162 A.2d 722.
I now consider defendant Fish Company's motion for summary judgment based on the separate defense of laches. I also must consider defendant Pacific's separate motion for summary judgment based on the contention that as a matter of law none of the alleged improper conduct by which Fish Company obtained an interest in plaintiff's inventions is to be imputed to it. The disposition of these motions has been rendered extremely difficult because the prolix record with its disjointed and inconsistent narrative varied from the complaint and obscured the search to ascertain whether the facts material to the disposition of the motions were undisputed.
At the heart of the present controversy lies the question of the ownership of six patents developed at least in part by plaintiff during his employment in various capacities with Fish Company and issued in his name.[1] Three of these patents (the so-called (a), (b), and (c) patents) were assigned to the Fish Company, while the remaining three ((d), (e), and (f)) have never been assigned.
Plaintiff makes a broad claim in rather general terms that during the whole period of his employment by Fish Company he relied on the advice and assurances given him by his associates in the company who were its founders, directors, and managing officers. Plaintiff thus seeks to establish that a kind of confidential relationship existed between himself and these other persons which required them to deal fairly with him and not at arms' length. He claims that all of the actions of the defendants must be viewed as being colored by the existence of this relationship. Plaintiff says that whatever interest the defendants purportedly acquired in his inventions resulted from their knowingly abusing such relationship. In addition, he sets out specific instances of "fraud" with respect to each set of patents which are said to have caused him to convey to the defendants the interest they acquired therein. First, with respect to (a), (b), and (c), plaintiff claims that assignments of such patents were obtained from him initially by certain misrepresentations *666 of law concerning his obligation to execute assignments to Fish Company as his employer. He further contends that he was lulled into inaction in protecting his legal rights in these patents by certain further assurances or promises by Fish Company which Fish Company never intended to perform. Thus, plaintiff now seeks rescission of these assignments. Next, with respect to (d), (e), and (f), plaintiff claims first that these inventions were used by the defendants though they had no rights whatever therein and secondly, in the alternative, that though defendants may have had certain rights in such inventions, they obtained such rights by making certain promises to plaintiff which they had no intention of performing. Also, plaintiff says that even if defendants intended to perform these promises, the agreement they made with him was unconscionable per se in view of the confidential relationship existing between the parties. Thus, under (d), (e), and (f) plaintiff seeks either a declaration of his rights or, in the alternative, rescission of the transactions whereby defendants acquired their purported rights.
I am persuaded after close examination of the record that any decision on the application of laches and limitations to these claims must be deferred until trial. It is presently disputed whether plaintiff had knowledge of his legal rights before April 1956. While Fish Company has pointed out certain areas where plaintiff ought to have known at an earlier time that defendants were taking a position contrary to the legal rights which he now claims he possessed, plaintiff raises genuine issues of fact as to whether his delay in asserting such rights resulted from his reliance on the assurances given him by Fish Company. Such reliance on his part would I think be relevant to the question of laches even in the absence of some special relationship between the parties.
The complaint in this suit was filed on February 2, 1959. Defendants contend that in April of 1956 plaintiff obtained full knowledge of the facts concerning his legal rights in all these inventions including the purported abuse of any existing confidential relationship. Defendants claim, and plaintiff apparently concedes, that to the extent the Texas statute of limitations is applicable, the period is two years (Vernon's Ann.Civ.St., Art. 5526). Thus, defendants assert in effect that plaintiff's claims are stale.
In cases falling within the exclusive jurisdiction of this court, the Statute of Limitations otherwise applicable is but one factor to be considered in measuring the legal effect of the complainant's delay. It is to be considered in conjunction with the complainant's own conduct from the time he discovered the alleged wrong. Bay Newfoundland Co. v. Wilson & Co., 24 Del. Ch. 30, 4 A.2d 668. Thus, the Texas statute is not to be considered as binding on this court in determining the availability of the remedy presently sought by plaintiff.
I am persuaded on the basis of the present record that a decision on this issue also must await the trial. The application of the statute cannot be determined here in the absence of a resolution of the factual issues pertinent to the defense of laches. If, as alleged by defendants, plaintiff knew of his purported legal rights from and after April 1956, it is also true on this record that defendants were aware on that date of plaintiff's claims in that respect. There is nothing to indicate that plaintiff thereafter acquiesced in the assertions of defendants as to the limited nature of his rights.
The record indicates that after the April 1956 confrontation between plaintiff and Fish Company's officers, plaintiff contacted an attorney who until his illness was in communication with Fish Company. Plaintiff's present attorney, Mr. Meyberg, thereafter corresponded with defendants and their attorneys and prepared the Notice of Rescission. Plaintiff later rejected a tender of royalties under Fish Company's version of one of the contracts in dispute. Thus, while the present situation may be one of *667 lapse of time before the commencement of a suit, it is not on the present record one where defendants have clearly been prejudiced by plaintiff's inaction. If one assumes that plaintiff's Notice of Rescission was timely, there is no convincing evidence that defendants thereafter suffered such a prejudicial change of position as should cause all relief to be denied to plaintiff for the alleged frauds. Thus, a decision on this issue will be deferred and defendant Fish's motion for summary judgment will be denied.
Next, I turn briefly to defendant Pacific's separate motion for summary judgment based on the contention that its sole connection with plaintiff's patents was that it bore the cost of testing the devices incorporating the inventions and then purchased the finished units either directly or indirectly from Fish Company. It claims that the undisputed facts demonstrate that at most it is chargeable with an unauthorized use of the inventions under a mistaken belief as to ownership. It contends therefore that such cause of action as might exist, presumably patent infringement, would not be cognizable in this court.
Defendant's argument as I understand it turns on whether Ray Fish and other Fish Company officers, in dealing with plaintiff with respect to the patents, are to be deemed as a matter of law as having acted solely on behalf of Fish Company and not in the interest of defendant Pacific. Plaintiff contends that Fish Company, Pacific, and all the Fish affiliates were mutually under the dominating influence of Ray Fish and that actions taken by him and others on behalf of these companies are binding on each of them respectively. Plaintiff claims that his inventions provided Pacific with an efficient and economical means of dehydrating gas for which no compensation other than his salary was paid to him. Thus, he contends that the alleged improper actions of Fish and of certain of his former associates were intended to benefit Pacific as well as the Fish Company and that their knowledge of such wrongs may be imputed to Pacific.
At this stage of the proceedings I am unable to find as a matter of law that the conduct of Fish and of plaintiff's associates in Fish Company is to be imputed solely to Fish Company and not to Pacific. I say this because there is considerable testimony in the record indicating a close relationship between these two entities. Moreover, there are statements by Ray Fish which tend to support plaintiff's view of Fish's pervasive influence or raise at a minimum a genuine issue of fact in that respect. I cannot say at this stage, if the 1954 contract was obtained by fraud, that Pacific would not be chargeable with participation in the alleged wrongs, at least to the extent of having knowingly profited from the use of the inventions. Consequently, Pacific's separate motion for summary judgment is denied.
Present order on notice.
NOTES
[1] One of these patents was issued in the names of two other persons as well as in plaintiff's name, but this fact is of no consequence in view of the conclusions here reached.
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201 F. Supp. 287 (1962)
PRESTIGE FLORAL, SOCIETE ANONYME, A. E. DeCamp and A. J. Fristot, Plaintiffs,
v.
CALIFORNIA ARTIFICIAL FLOWER COMPANY, (Inc.) and Calart (Inc.), Defendants.
United States District Court S. D. New York.
January 5, 1962.
Kane, Dalsimer & Kane, New York City, for plaintiffs, Philip Dalsimer, and John Kurucz, New York City, of counsel.
Barlow & Barlow, Providence, R. I., Herbert B. Barlow, Jr., Providence, R. I., of counsel, and Keith, Bolger, Isner & Byrne, New York City, for defendants, Thomas J. Byrne, Jr., New York City, of counsel.
FEINBERG, District Judge.
This is a motion for a preliminary injunction. Plaintiff Prestige Floral, Societe Anonyme, ("Prestige") filed its complaint on June 22, 1961, alleging *288 copyright infringement under 17 U.S.C. § 101 and seeking a permanent injunction, damages, and other relief. Jurisdiction is vested in this Court by 17 U.S.C. § 112 and 28 U.S.C. § 1338. The article allegedly infringed is a molded polyethylene flower in the form of a Charles lilac.[1]
Defendant California Artificial Flower Company (Inc.) ("California") is a Rhode Island corporation and defendant Calart (Inc.) is a New York corporation. Both defendants have an office and a place of business at 225 Fifth Avenue, New York City. Defendants filed their answer on July 10, 1961. Beginning early in August 1961, settlement discussions were held intermittently. These proved abortive and on October 30, 1961, plaintiff noticed its motion for a preliminary injunction returnable on November 14, 1961. Thereafter, affidavits were submitted to the Court by plaintiff Prestige and by defendants. In addition, a hearing was held on December 11, 1961,[2] at which various exhibits were introduced and three witnesses testified: Donald A. Paulsen, an officer of D. Arnold Associates, exclusive distributor in this country for Prestige's artificial flowers; Edward R. Hughes, an expert on thermoplastic materials and molding; and Michele D'Agnillo, the principal of defendant corporations. From the affidavits, the exhibits, and the testimony of witnesses, and giving effect to my judgment as to the credibility of the witnesses where appropriate, I find the facts as hereinafter set forth.
Prestige is a French corporation engaged in designing, creating and manufacturing molded polyethylene flowers. Prestige has pioneered in the artificial flower field and enjoys a reputation for products of high quality and as a leader in the creation of new styles. Prestige created as an original work of art a sculptured lilac, made out of polyethylene, and first published this work on or about September 19, 1959. On or about September 22, 1960, a replica of the lilac was deposited by Prestige with the Copyright Office together with its application for copyright registration of the article as a sculpture, Class G. Thereafter, copyright registration No. Gp 25925 was issued.
Prestige's copyright lilac has at all times since publication had the copyright notice "© PRESTIGE FLORAL" molded on the long stem of the lilac near its base and on the underside of one of its leaves. A new version of the lilac was introduced into this country in the spring of 1961. This flower had similar copyright notices on the stem and leaf. The later version of the lilac differed from the original only by the inclusion of additional foliage on the main stem and is sufficiently similar to the earlier model to be covered by copyright registration No. Gp 25925.
Defendant California is well known in the artificial flower market offering a line of over seven hundred flowers and fruits. Some of its items are made in Rhode Island and others are imported. Defendants have offered for sale and sold artificial lilacs which Prestige claims infringe its copyright. The allegedly infringing lilacs were imported by defendant from a company in Hong Kong which admits making a copy of another artificial flower of French origin. Prior to ordering the lilacs from Hong Kong, defendants had knowledge of Prestige's lilac and, in fact, had tried to order a small supply of them early in *289 January 1961 from Prestige's distributor in New York. Copying of artificial flowers in Hong Kong is well known in the trade.
Artificial lilacs are a seasonable item in greatest demand during the early spring. The season for lilacs begins in January and lasts through Easter. In November and December most wholesalers will decide which items they will carry during the spring season. Prestige's exclusive distributor in this country has conditioned its acceptance of Prestige's lilacs on Prestige's success in stopping the importation of "pirated duplicates * * * from Hong Kong." If this is not stopped, the distributor reserves the right to cancel its order. The lilac sold by defendants is offered at a price substantially lower than that of the Prestige lilac.
I
It is settled in copyright infringement cases that a preliminary injunction should issue when the plaintiff makes a prima facie showing that his copyright is valid and that the defendant has infringed. H. M. Kolbe Co. v. Armgus Textile Co., 279 F.2d 555 (2 Cir. 1960); Houghton Mifflin Co. v. Stackpole Sons, Inc., 104 F.2d 306, 307 (2 Cir.) cert. denied 308 U.S. 597, 60 S. Ct. 131, 84 L. Ed. 499 (1939); Trifari, Krussman & Fishel, Inc. v. Charel Co., 134 F. Supp. 551, 554 (S.D.N.Y.1955).
Initially, defendants have raised several questions as to the validity of plaintiff's copyright. First, they attack the copyright generally, claiming that there is not sufficient artistry in the creation of artificial flowers to justify copyright protection. Second, they raise various narrower objections to the copyright, including claims that the copyright notice on plaintiff's flowers was defective and that plaintiff has not produced a specimen of the alleged copyrighted lilac.
In connection with the broad attack on the copyright, 17 U.S.C. § 4 provides:
"The works for which copyright may be secured under this title shall include all the writings of an author."
17 U.S.C. § 5 provides that the application for registration shall specify to which of various enumerated classes the work in which copyright is claimed belongs. Plaintiff's application specified Class G, covering works of art, as the applicable class.[3] The basic question, therefore, is whether plaintiff's artificial flower is copyrightable as a work of art.
A recent comprehensive report of the Register of Copyrights[4] summarized pertinent court decisions on copyrightability as follows:
"It is well estabished, by a long line of court decisions, that in order to be copyrightable under the statute a work must meet the following requirements:
"(a) The work must be in the form of a `writing,' i. e., it must be fixed in some tangible form from which the work can be reproduced.
"(b) The work must be a product of original creative authorship. Two interrelated elements are involved here: originality and creativity.
"(1) The work must be original in the sense that the author produced it by his own intellectual effort, as distinguished from merely copying a preexisting work. It need not be novel (as a patentable invention must be); in theory at least, it could be precisely the same as a preexisting work as long as it *290 was created by the author independently.
"(2) The work must represent an appreciable amount of creative authorship."[5]
The parties have not cited any cases involving artificial flowers. However, there are closely analogous situations which indicate that plaintiff's artificial flower may properly be the subject of a copyright. In Peter Pan Fabrics, Inc. v. Candy Frocks, Inc., 187 F. Supp. 334 (S.D.N.Y.1960), this Court granted a preliminary injunction in an infringement action where the copyrighted work of art was a floral design for a dress fabric. The Court pointed out (at 187 F. Supp. 336) that "Obviously, floral patterns are in the public domain, but plaintiff has contributed enough originality in the designs to qualify them as distinguishable variations."[6] Similarly, in F. W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162 (1 Cir.1951), aff'd 344 U.S. 228, 73 S. Ct. 222, 97 L. Ed. 276 (1952), copyright protection was afforded to statutes of a "Cocker Spaniel in Show Position" sold commercially. In its opinion, the Court of Appeals for the First Circuit said (193 F.2d at 164):
"It is the well established rule that a copyright on a work of art does not protect a subject, but only the treatment of a subject. * * * The proposition was elaborated by Mr. Justice Holmes in Bleistein v. Donaldson Lithographing Co. * * * wherein with respect to cromolithographs of a circus scene prepared for advertising purposes he said: `But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. * * * The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright * * *.' Here the `something irreducible' * * * was shape. * * * It means the proportion, form, contour, configuration, and conformation, perhaps the latter in details too subtle for appreciation by anyone but a fancier, of the dog represented by the sculptured work of art."
In Mazer v. Stein, 347 U.S. 201, 74 S. Ct. 460, 98 L. Ed. 630 (1954), the question raised was whether statuettes used as bases for electric lamps were protected by the copyright of the original models. The statuettes were of Balinese dancers. The Supreme Court held that use in industry would not bar or invalidate the copyrights.
One of the studies upon which the Report of the Register of Copyrights, supra, was based pointed out the following on the recent trend in copyrighting three-dimensional objects:
"The courts in recent years, particularly since Mazer v. Stein, are beginning to realize the validity of the copyright approach and are gradually overcoming their hesitation to hold, expressly or impliedly, that a three-dimensional object is a `writing.' Perhaps the Copyright Office anticipated this development by changing its regulation with regard to the definition of the term `work of art.' Prior to 1949 three-dimensional objects, intended primarily for commercial use, were not ordinarily granted registration. On *291 the contrary, applicants were advised that `protection of productions of the industrial arts, utilitarian in purpose and character, even if artistically made or ornamented, depends upon action under the patent law.' However, in 1949 section 202.8 of the Regulations was changed so as to make registrable the artistic features of jewelry, enamel, glassware, tapestries, and other similar materials. Such registration was to cover only the artistic aspects, as distinguished from `the mechanical or utilitarian' aspects. When the validity of this regulation was challenged in Mazer v. Stein, the Register of Copyrights, as amicus curiae, took the position that the new regulation actually reflected the previous practice of the Office. The brief said in this regard
that the Copyright Office has consistently since 1909 and even before then registered works like the one in this case following the clearly stated mandate of Congress.
"In August, 1956, the Copyright Office issued regulations which, in greater detail than ever before, explicitly describe what can be registered. These regulations do not talk in terms of `writings' but do require that any object offered for registration meet at least minimal standards of originality and creativity, as well as fall within one of the classes enumerated in section 5 of the copyright statute."[7]
Applying these principles and analogous decisions to the instant case, it would seem that though a flower, like a dog, is a creation of nature, a likeness of it may be copyrighted. This conclusion seems particularly justified when the creation of the likeness involves, in the words of the Woolworth case, supra, numerous and detailed decisions as to "proportion, form, contour, configuration, and conformation." Plaintiff's expert testified at length as to the "series of determinations" that had to be made by the creator of plaintiff's artificial flowers. Since plaintiff's lilac reflects originality and a substantial degree of skill and independent judgment, it is a proper subject for copyright. Mazer v. Stein, supra; Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2 Cir.1951).
II
Defendants also press narrower objections to the copyright notice. Defendants first contend that the notices are insufficient because they cannot be seen by the naked eye. The notice on the stem though is clearly visible to the naked eye. The notice on the leaf, however, is considerably more difficult to make out. That it is on the underside of a leaf would not of itself seem objectionable. Coventry Ware, Inc. v. Reliance Picture Frame Co., 288 F.2d 193, 195 (2 Cir.) cert. denied 368 U.S. 818, 82 S. Ct. 34, 7 L. Ed. 2d 24 (1961); Scarves by Vera, Inc. v. United Merchants & Mfgrs., Inc., supra. The notice can be seen by the naked eye although "close examination is required to locate it." Trifari, Krussman & Fishel, Inc. v. Charel Co., supra. Even if this were not so, I find from the affidavits and evidence before me that plaintiff has made a prima facie case that, before engaging in the sale of their lilacs, defendants had actual notice of plaintiff's copyright. Under these circumstances, I do not believe that difficulty in discerning the notice on the leaf should of itself prevent the granting of a preliminary injunction if plaintiff is otherwise entitled to it. Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., 144 F. Supp. 577, 581 (S.D.N.Y.1956); accord, Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 490 (2 Cir. 1960).
*292 Second, defendants urge that "* * * there is a strong possibility that the copyright here in suit is invalid because of a postdated notice thereby claiming a date a year too late, and thereby claiming a year more for monopoly. * * *" It should be noted that although apparently no date was necessary on plaintiff's flower, Fleischer Studios v. Ralph A. Freundlich, Inc., 73 F.2d 276, 278 (2 Cir.1934) the legend "MOD. DEPOSE 1961" did appear on the stem of plaintiff's later lilac,[8] although the publication date was 1959.[9] Defendants cite in support of their position Baker v. Taylor, 2 Fed.Cas. 478, No. 782 (C.C.S.D.N.Y.1848) and American Code Co. v. Bensinger, 282 Fed. 829, 836 (2 Cir.1922). While it may be possible to limit the effect of these cases,[10] it would seem that they are inapplicable on the facts of the instant case. Defendants do not contend that the notice on the leaf was inaccurate although, as noted, they claim it is not sufficiently legible. Since the notice on the leaf and the notice on the steam differ as to date, this may be confusing. But I do not believe that plaintiff's copyright notice is thereby rendered so affirmatively misleading as to justify invalidating the copyright. The decisions upon which defendants rely require at least this likelihood. National Comics Publications v. Fawcett Publications, 191 F.2d 594, 602 (2 Cir.1951). Further, I do not find on the record now before the Court that defendants were in fact misled.
Defendants also argue that plaintiff did not produce a specimen of the lilac filed in the Copyright Office, and that plaintiff has failed to prove exactly what is covered by its copyright. On the affidavits and evidence before me, however, I feel this contention is incorrect and that plaintiff has made a prima facie showing. The affidavits submitted include one by plaintiff's trial counsel that he personally supervised the application for the copyright registration and submitted a three-dimensional replica of the copyrighted work. While it is true that the Copyright Office has been unable *293 to locate the deposited work in its files, the affidavit of plaintiff's counsel, the colloquy in Court between respective counsel and the stipulation thereon,[11] and the testimony of Mr. Paulsen[12] all support the conclusion that the lilacs produced in Court by plaintiff are specimens of what was copyrighted.
III
In addition to validity of the copyright, it is, of course, essential for plaintiff to make a prima facie case of infringement. I find from the affidavits and evidence that defendants had access to the copyrighted lilac. Arc Music Corp. v. Lee, 296 F.2d 186 (2 Cir.1961). Also, plaintiff's expert testified at length about the similarity between plaintiff's and defendants' lilacs and the extreme unlikelihood that such similarity was brought about by chance. It is true that the test for copying cannot be stated with precision. Thus, in Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra, 274 F.2d at 489, Judge Learned Hand stated:
"The test for infringement of a copyright is of necessity vague. In the case of verbal `works' it is well settled that although the `proprietor's' monopoly extends beyond an exact reproduction of the words, there can be no copyright in the `ideas' disclosed but only in their `expression.' Obviously, no principle can be stated as to when an imitator has gone beyond copying the `ideas,' and has borrowed its `expression.' Decisions must therefore inevitably be ad hoc. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible. No one disputes that the copyright extends beyond a photographic reproduction of the design, but one cannot say how far an imitator must depart from an undeviating reproduction to escape infringement. In deciding that question one should consider the uses for which the design is intended, especially the scrutiny that observers will give to it as used. * * * However, the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same."
Applying the test which rests on the intended use of the copyrighted article, and basing my conclusion upon the affidavits and evidence before me and on my own comparison of the flowers, I find that the allegedly infringing lilacs are copies of plaintiff's lilac and that the claimed variations between them do not sufficiently differentiate them.
Defendants have also contended that plaintiff has not shown sufficient likelihood of immediate irreparable injury to justify the granting of a preliminary injunction. While no detailed proof of such harm is required on this motion, Rushton v. Vitale, 218 F.2d 434, 436 (2 Cir.1955), plaintiff has made out a prima facie case and I do so find that unless afforded preliminary relief, it will suffer immediate substantial and irreparable injury.[13]
Therefore, for the reasons set forth above, I conclude that plaintiff has made a prima facie case that it has validly copyrighted the artificial flower in issue, that defendants have been selling or offering for sale lilacs copied from plaintiff's lilac, that this infringes plaintiff's copyright, that defendants' various contentions are lacking in merit, and that plaintiff will suffer immediate irreparable injury unless granted preliminary relief. Consequently, plaintiff's motion for a preliminary injunction should be and hereby is granted as to both defendants.
Settle order on notice on the first cause of action. The findings and conclusions *294 required by Rule 52(a), Fed. Rules Civ.Proc., 28 U.S.C., are contained in this opinion. Plaintiff must furnish security in the amount of $10,000 to defendants.
NOTES
[1] The complaint also included a second count for infringement of a copyrighted artificial geranium. Plaintiffs on this second cause of action are A. E. DeCamp and A. J. Fristot. At the hearing on the preliminary injunction, defendants stipulated to entry of a preliminary injunction with regard to the geranium, reserving their rights for trial on the suit for a permanent injunction.
[2] In the few weeks prior to the hearing there were conferences between the Court and counsel regarding procedural matters and the practicality of getting testimony from a witness in France. Proposed findings of fact and conclusions of law were to be submitted by December 18, 1961; the date was later advanced to December 21, 1961.
[3] The statutory description of the class in 17 U.S.C. § 5(g) is "Works of art; models or designs for works of art." See 37 C.F.R. § 202.10.
[4] Copyright Law Revision, House Comm. on the Judiciary, 87th Cong., 1st Sess. (Comm.Print 1961). This report is the culmination of a program of scholarly studies by the Copyright Office preparatory to a general revision of the copyright law.
[5] Ibid, p. 9.
[6] In Scarves by Vera, Inc. v. United Merchants & Mfgrs., Inc., 173 F. Supp. 625, 627 (S.D.N.Y.1959), this Court noted that "Obviously, fish, sailor suits and ice cream parlor trappings are in the public domain," but silk screen paintings of these subjects used in the manufacture of blouse materials were protected.
[7] Study No. 3, The Meaning of "Writings" in the Copyright Clause of the Constitution, pp. 100-101, Subcommittee on Patents, Trademarks, and Copyrights, Senate Committee on the Judiciary, 86th Cong., 1st Sess. (Comm.Print 1960); also published as Note, 31 N.Y.U.L.Rev. 1263, 1303 (1956).
[8] On plaintiff's Exhibit D (the earlier model) the notice appears on the stem in the following form:
© PRESTIGE FLORAL 1959 MOD. DEPOSE and on the underside of a leaf in the following form:
© PRESTIGE FLORAL 1959 MODELE DEPOSE
On Plaintiff's Exhibit C (the later model), the notice appears on the stem in the following form:
© PRESTIGE FLORAL MOD. DEPOSE 1961
and on the underside of a leaf in the following form:
© PRESTIGE FLORAL 1959 MODELE DEPOSE
[9] Defendants also contend in submitting proposed finding of fact No. 4 that plaintiff admitted that its earlier lilac was on sale in 1958, one year prior to the date of publication stated in the Certificate of Registration (plaintiff's Exhibit A at the hearing). This is apparently based upon a statement by Mr. Paulsen on December 11, 1961, that plaintiff's earlier lilac was introduced into this country "approximately 3 years ago." (Tr., p. 13) However, on cross-examination, Mr. Paulsen indicated that the first items received from Prestige Floral were "extremely close to the date of the copyright." (Tr., p. 35), by which I assume he meant September 1959, and I find that plaintiff has made a prima facie case that the date of publication was actually 1959, not 1958. Cf. also 17 U.S.C. §§ 209, 210 to the effect that the statement in plaintiff's Certificate of Registration is "prima facie evidence of the facts stated therein."
[10] In Baker v. Taylor, there was more than a mistake, because plaintiffs there knew of the error before publication and did not trouble to correct it; the statement in Bensinger is a dictum. See Heim v. Universal Pictures Co., 154 F.2d 480, 490 (2 Cir. 1946), indicating that these cases still represent the law; but cf. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra, 274 F.2d 490; Ziegelheim v. Flohr, 119 F. Supp. 324, 328 (S.D.N.Y.1954); Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., supra, 144 F. Supp. 581.
[11] Tr., pp. 11-12.
[12] Tr., pp. 13-15, 35.
[13] See Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F. Supp. 142 (S.D. N.Y.1959).
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01-03-2023
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10-30-2013
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189 A.2d 435 (1963)
In re ARTESIAN WATER COMPANY.
Superior Court of Delaware, New Castle.
March 14, 1963.
*436 F. Alton Tybout (of Prickett, Prickett & Tybout), Wilmington, for appellant.
Bayard W. Allmond (of Allmond & Wood), Wilmington, for appellee.
WRIGHT, Judge.
This is an appeal from an order of the Public Service Commission.
The appellant is the City of Newark, a municipal corporation of the State of Delaware, hereinafter referred to as "Newark" and the appellee is Artesian Water Company, a public utility operating in New Castle County, Delaware, hereinafter referred to as "Artesian".
Artesian presently serves water to some 20,000 customers in an area which may be roughly designated as lying between the City of Wilmington and the City of Newark. Artesian's growth pattern has been in a westerly direction toward Newark.
In 1955 by amendment to Newark's charter, Newark was authorized to extend its water system ten miles beyond its city limits. Newark has extended its service in an easterly direction by the installation of main down Robert Kirkwood Highway. North of Robert Kirkwood Highway and northeast of the Corporate limits of Newark, laterals have been extended from this main into the developments of Delaplane Manor and Roseville Park. These extensions run a distance of forty or fifty feet.
Almost directly north of Robert Kirkwood Highway at the point described above and approximately one mile distant lies an elevated area known as Crow Hill. It is here that Artesian proposes to install a two million gallon storage facility and it is this installation to which Newark objects.
Newark's objection is simply stated. In order to establish this facility in the proposed area, it is contended, Artesian was required to secure a Certificate of Public Convenience and Necessity from the Public Service Commission due to the provisions of 26 Del.C. § 162 and in fact no public convenience and necessity justifies such a facility.
The Public Service Commission decided that Artesian was required to obtain a Certificate of Public Convenience and Necessity before proceeding to install the proposed facility and granted such Certificate after a full hearing.
*437 Initially it is necessary to dispose of a question which has been raised concerning the function of this Court in an appeal of this nature. I shall not review the contentions of the parties in this respect because I consider that it is settled law that the Superior Court does not sit, in such appeals as a superior administrative tribunal. In the Matter of Application of Diamond State Tel. Co., 9 Terry 497, 107 A.2d 786 (1954), modified on other grounds 10 Terry 203, 113 A.2d 437. As was said in that case, a different rule would render the hearings below as "mere rehearsals". Absent some Constitutional or statutory violation, not suggested here, this Court will reverse only when it is shown that the administrative body from which the appeal was taken abused its discretion and where a finding below is supported by some evidence this Court will not substitute its judgment in the matter for that rendered by the administrative body.
I agree with the Commission's ruling that Artesian was required to secure a Certificate of Public Convenience and Necessity. This was necessary because Artesian's lines which would run from the proposed installation to its present service area would cross Newark's at Robert Kirkwood Highway. Under this circumstance the application of 26 Del.C. § 162 could not be more clear.
The record reveals evidence presented on behalf of Artesian that the projected population increase at the western end of Artesian's present facilities justifies the proposed facility at the site selected by Artesian at this time. Upon such evidence the Commission found a future public convenience and necessity. In my opinion the evidence presented was sufficient to sustain the Commission's finding and their action in issuing a Certificate of Public Convenience and Necessity was proper. Under the view I have expressed above concerning the scope of this Court's review in matters of this nature, it is unnecessary to comment upon the contrary evidence presented.
The action of the Commission in requiring and granting a Certificate of Public Convenience and Necessity with the conditions thereto attached is affirmed.
Order accordingly.
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Criminal Court of Appeals of Oklahoma. Certiorari denied.
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01-03-2023
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09-09-2022
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https://www.courtlistener.com/api/rest/v3/opinions/2190547/
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113 Ill. App. 3d 588 (1983)
447 N.E.2d 909
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DARRYL BELL et al., Defendants-Appellants.
Nos. 81-929, 81-931, 81-953, 81-1110 cons.
Illinois Appellate Court First District (5th Division).
Opinion filed March 25, 1983.
*589 *590 James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellants Darryl Bell, William Martin, and Kevin Mitchell.
Steven Clark and Gordon Berry, both of State Appellate Defender's Office, of Chicago, for appellant Vincent Bevley.
Richard M. Daley, State's Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, Anthony John Calabrese, Michael J. Kelly, and Peter Delonges, Assistant State's Attorneys, of counsel), for the People.
Affirmed in part and vacated in part.
JUSTICE LORENZ delivered the opinion of the court:
Defendants Darryl Bell, Kevin Mitchell, William Martin, and Vincent Bevley were convicted, after trial by jury, of murder (one count each), attempted murder (five counts each), and armed violence based on attempted murder (five counts each). (See Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a), 8-4(a), and 33A-2.) No issue is raised on the sentences imposed by the trial court, but the defendants assert that their *591 convictions should be reversed for the following reasons:
1. The evidence is not sufficient to prove that (a) Mitchell and Bell intended to kill the attempted-murder complainants, or (b) that Bevley and Martin are accountable for the conduct of their codefendants.
2. The court erred when it declined to answer a question submitted by the jury during its deliberations.
3. A prosecutor made improper comments during argument.
4. It was improper to enter concurrent convictions on the attempted-murder and armed-violence verdicts.
We disagree with the first three contentions, and accordingly, we affirm in part and vacate in part. Before stating the evidence which is material to our decision, it is important to clarify our role in reviewing the adequacy of evidence to support criminal convictions.
"The elementary but crucial difference between burden of proof and scope of review is, of course, a commonplace in the law. The difference is most graphically illustrated in a criminal case. There the prosecution is generally required to prove the elements of the offense beyond a reasonable doubt. But if the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. In other words, an appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence." Woodby v. Immigration & Naturalization Service (1966), 385 U.S. 276, 282, 17 L. Ed. 2d 362, 367, 87 S. Ct. 483, 486; see also Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (holding that when reviewing the sufficiency of evidence to support a State criminal conviction, "the relevant question [under the due process clause of the fourteenth amendment] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt").
Illinois reviewing courts follow the same approach when evaluating evidence in criminal cases, and where there is sufficient evidence of guilt, if believed by the jury, to prove defendant guilty beyond a reasonable doubt, a conviction will not be reversed. (See People v. Goodpaster (1966), 35 Ill. 2d 478, 480.) As the supreme court explained *592 in People v. Henderson (1947), 398 Ill. 348, 353-54,
"It was for the jury to determine the credibility of the various witnesses and to attach such weight to their testimony as they thought it was entitled to. The jury accepted the testimony of the People as being the correct version of what occurred. The jurors' acceptance of the People's theory leaves nothing for the court to determine except as to whether there is sufficient evidence, if believed to be true, to prove defendant's guilt beyond a reasonable doubt."
1 Accordingly, we must view the evidence in the light most favorable to the prosecution, and the evidence of guilt cannot be disregarded on review unless it is improbable, inconclusive or contrary to human experience. (See People v. Stevenson (1962), 25 Ill. 2d 361, 364-65; People v. Ellis (1978), 74 Ill. 2d 489, 496.) Also, in light of the legal principles mentioned above, we need not set forth a comprehensive abstract of the testimony, and our statement of the material evidence represents the testimony taken in the light most favorable to the prosecution.
On August 29, 1980, there was a backyard party, attended by about 40 young people, at 8856 South Union Street in Chicago. Around midnight, defendant Kevin Mitchell began to repeatedly make unusual gestures which involved crossing his arms over his chest with thumbs up, and then moving clenched fists to his forehead. Andre Long testified that some of the other young men at the party reacted to these gestures by talking among themselves. According to Long, he asked Mitchell to leave the party because he was afraid there was going to be a fight between Mitchell and some of the others at the party.
Mark Petties testified that he and Chappelle Crump escorted Mitchell to the front of the house. They were followed by 10 unidentified young men. Andre Long testified that these were the same gentlemen who began to talk among themselves when they saw Mitchell making his unusual gestures.
When these two groups got to the front of the house, several of the unidentified young men began to beat Mitchell. The beating was eventually stopped, and Mitchell, bloodied, drove off in a blue car. Two or three people left with Mitchell, and one of the other occupants was identified by Derrick Sims as defendant William Martin.
About 15 minutes later, Mitchell drove back to 8856 South Union, stopped, got out of his car, fired several shots at the house, and drove away. Nobody was injured during this incident. And although there were two or three passengers in Mitchell's car, they could not be identified.
*593 The guests at the party began to go home after the first shooting, and about 15 people were standing near the front of the house when, 20 minutes later, Mitchell approached the house driving a white car. The car stopped in front of the house, and Mitchell fired several shots out of the window with a .38-caliber handgun, while one of his passengers, Darryl Bell, fired a sawed-off .22-caliber rifle. Up to six shots were fired, and Ronald Yates, who was standing in front of the house, was killed by a .38-caliber bullet in the forehead.
Mark Petties, Carlos Tyree, Chappelle Crump, Andre Long, and Derrick Sims were in front of or near the front of the house at 8856 South Union during the second shooting incident. These witnesses testified that Mitchell and Bell fired at the house, and the witnesses said they ducked when the volley of gunfire began.
Vincent Bevley was identified as sitting behind Mitchell during the second shooting incident, and William Martin was identified as sitting on the passenger side of the backseat. A nearby police car responded to the gunfire, and Officer George Bryja testified that defendant Bevley threw the sawed-off rifle out the car window during the chase. Plus, after the defendants were arrested, a .38-caliber revolver was discovered under the rear seat near where Martin was sitting.
Based on this evidence, the jury found the defendants guilty of murdering Ronald Yates, and of attempting to murder Mark Petties, Carlos Tyree, Chappelle Crump, Andre Long, and Derrick Sims. The jury also found the defendants guilty of armed violence based on the attempted-murder findings.
The first issue on appeal is whether the evidence is sufficient to support finding that the shooters, Mitchell and Bell, intended to kill Petties, Tyree, Crump, Long and Sims.
Intent to kill is not necessary for a murder conviction, and it is sufficient to sustain such a charge if the defendant knew his acts "create[d] a strong probability of death or great bodily harm." (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2).) But such knowledge is not sufficient to support an attempted-murder conviction (see People v. Trinkle (1977), 68 Ill. 2d 198, 201-02), and "to convict for attempted murder nothing less than a criminal intent to kill must be shown." People v. Harris (1978), 72 Ill. 2d 16, 27.
"The gist or essence of the crime of assault with intent to murder is a specific intent to take life and such intent must be proved as charged beyond a reasonable doubt. However, since intent is a state of mind, and, if not admitted, can be shown *594 only by surrounding circumstances, it has come to be recognized that an intent to take life may be inferred from the character of the assault, the use of a deadly weapon and other circumstances." People v. Coolidge (1963), 26 Ill. 2d 533, 536; accord, People v. Koshiol (1970), 45 Ill. 2d 573, 578; People v. Wilson (1930), 342 Ill. 358, 366; see also LaFave & Scott, Criminal Law sec. 28, at 203 (1972); Ill. Ann. Stat., ch. 38, par. 4-3, Committee Comments, at 256 (Smith-Hurd 1972).
The courts have sometimes stated that there is a "presumption" of intent to kill "[w]here one voluntarily and willfully does an act, the natural tendency of which is to destroy another's life." (People v. Shields (1955), 6 Ill. 2d 200, 206; see also People v. Marrow (1949), 403 Ill. 69, 74.) But, "If this is taken as a rule of substantive law, it is apparent that it would in effect destroy the concept of intention and replace it entirely with negligence. This is because the defendant would be held to have intended whatever a reasonable man would have foreseen as probable." LaFave & Scott, Criminal Law sec. 28, at 203 (1972).
Properly understood, however, this so-called "presumption" merely means it may be permissible, depending upon the circumstances of the particular case, for a trier of fact to infer intent to kill. (LaFave & Scott, Criminal Law sec. 28, at 203 (1972); see also People v. Shields (1955), 6 Ill. 2d 200, 205.) As the court explained in Crosby v. People (1891), 137 Ill. 325, 337, "The intent with which the act was done is a question of fact, either to be shown by the declaration of the party, or to be inferred from the character, manner and circumstances of the assault." For example, in People v. Gonzales (1968), 40 Ill. 2d 233, the defendant drove up in a car and fired a shotgun at a group of men standing in front of a tavern. Affirming defendant's conviction for attempted murder, the supreme court stated:
"It is not necessary to show that he formed an intent to kill any particular person since there can be no question but that the natural tendency of this act would be to destroy another's life. In a situation such as this the criminal intent to murder may be implied from the character of the act." People v. Gonzales (1968), 40 Ill. 2d 233, 241-42.
2 The evidence in the present case, taken with credibility questions resolved in favor of the State, shows that Kevin Mitchell and Darryl Bell fired up to six shots at a house while Petties, Tyree, Crump, Long, Sims and the decedent stood in front of or near the front of the building. Mitchell and Bell fired deadly weapons from close range, and the natural tendency of these acts was to kill those *595 who, like Ronald Yates, stood in the target area. The circumstances of the attack made by Mitchell and Bell persuades us the evidence was sufficient for a rational trier of fact to find, beyond a reasonable doubt, that Mitchell and Bell acted with intent to kill Petties, Tyree, Crump, Long and Sims.
Next, Bevley and Martin argue that the evidence is not sufficient to support finding them accountable, as accomplices, for the actions of their codefendants.
Among other specified situations, a person is legally accountable for the conduct of another if, with intent to promote or facilitate the commission of an offense, he agrees to aid in the commission of the offense. (See Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c).) Although "mere presence at the commission of an alleged offense, without any affirmative act of assisting, abetting or encouraging the commission of the act, is not sufficient to make one a principal in the commission of the offense" (People v. Shields (1955), 6 Ill. 2d 200, 207), "[t]he encouragement may come long before the time the crime was committed * * *. It is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice's intentions." LaFave & Scott, Criminal Law sec. 64, at 503 (1972); accord, People v. Rudecki (1923), 309 Ill. 125, 130-31.
3 As with any other fact-to-be-proved, circumstantial evidence may establish that there was an agreement or understanding, between principal and accomplice, that the accomplice would stand by at the scene of a crime and assist if necessary. "Circumstances may show that there is in such case a common design to which all assented, and where that is so it is not necessary that each one shall take an active part in the commission of the crime." People v. Powers (1920), 293 Ill. 600, 603.
"While it is true that mere presence or negative acquiescence is not enough to constitute a person a principal, one may aid and abet without actively participating in the overt act and if the proof shows that a person was present at the commission of the crime without disapproving or opposing it, it is competent for the trier of fact to consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the crime." People v. Cole (1964), 30 Ill. 2d 375, 379; see also People v. Cione (1920), 293 Ill. 321, 331.
*596 In the present case, Mitchell and Bell, the triggermen, went to 8856 South Union armed with deadly weapons, and they were clearly seeking revenge for what had happened to Mitchell earlier in the evening. Bevley and Martin argue that the evidence fails to show that they were anything more than innocent spectators to the criminal conduct of their fellow automobile occupants. But common sense tells us that Mitchell and Bell would not have brought Bevley and Martin along on their deadly mission unless these self-professed "spectators" had agreed that they would assist the triggermen if necessary.
It isn't likely that Mitchell and Bell decided to bring "innocent spectators" with them to insure that there would be eyewitnesses to their crimes. Moreover, the evidence, taken in the light most favorable to the prosecution, shows that Bevley and Martin did assist when it became necessary, by disposing of the guns while the police pursued them.
4 The circumstances of this case are sufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that:
(1) when Bevley and Martin accompanied Mitchell and Bell in the white car, they agreed that, if necessary, they would aid their codefendants commit acts which "create[d] a strong probability of death or great bodily harm" (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2));
(2) these "spectators" intended to facilitate commission of the acts which resulted in the death of Ronald Yates; and
(3) both Bevley and Martin knew there was a strong probability that these acts would result in death or great bodily harm. Consequently, there was sufficient evidence to find them accountable for the murder of Ronald Yates.
A similar question is whether the evidence was sufficient to hold Bevley and Martin accountable for attempted murder.
An accomplice can be held accountable for murder even in the absence of intent to kill (see LaFave & Scott, Criminal Law sec. 64, at 507 (1972); Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a), 5-2(c)), but, as we noted earlier, principals (such as Mitchell and Bell) are not guilty of attempted murder unless they acted with intent to kill.
We agree that the evidence in the present case is not sufficient to justify concluding that Bevley and Martin intended for Mitchell and Bell to kill Pettie, Tyree, Crump, Long and Sims. In many jurisdictions this would absolve them from legal liability as accomplices for attempted murder, because "[t]he prevailing view is that the accomplice must also have the mental state required for the crime of which he is to be convicted on an accomplice theory." (LaFave & Scott, Criminal Law sec. 64, at 506 (1972).) "[F]or example * * * one may not *597 be held as an accomplice to the crime of assault with intent to kill if that intent was not shared by the accomplice." LaFave & Scott, Criminal Law sec. 64, at 507 (1972); see also Ill. Ann. Stat., ch. 38, par. 5-2, Committee Comments, at 288 (Smith-Hurd 1972) (stating that liability under section 5-2(c) "requires proof of an "intent to promote or facilitate * * * commission' of the substantive offense").
Nevertheless, in People v. Kessler (1974), 57 Ill. 2d 493, the supreme court construed section 5-2 as providing that an accomplice can be held accountable for attempted murder even in the absence of intent to kill. In that case, a defendant who aided and abetted the burglary of a tavern, by driving the getaway car, was held accountable for two attempted murders committed by the principals when they were unexpectedly discovered inside the tavern. The appellate court reversed the defendant's attempted-murder convictions because there was no proof that he intended for his companions to kill the persons who unexpectedly discovered them during the burglary. People v. Kessler (1973), 11 Ill. App. 3d 321, 325-26.
The supreme court reversed the appellate court and affirmed Kessler's attempted-murder convictions, holding that section 5-2 incorporated the "common design rule." (57 Ill. 2d 493, 497-98.) Under the "common design rule," "where defendants have a common design to do an unlawful act, then whatever act any one of them does in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed." (People v. Armstrong (1969), 41 Ill. 2d 390, 399; accord, People v. Tate (1976), 63 Ill. 2d 105, 109-10.) Since Kessler was legally accountable for the crime of burglary, as an accomplice, the common design rule meant that he was also accountable for the attempted murders committed during the burglary by his cohorts. 57 Ill. 2d 493, 499.
In the present case, the jury was instructed to apply the principles of accountability set forth in section 5-2(c), and defendant Martin argues that his conviction cannot be affirmed based on the common law common design rule. However, in Kessler the supreme court read the common design rule into section 5-2 by holding that "the statute, as it reads, means that where one aids another in the planning or commission of an offense, he is legally accountable for the conduct of the person he aids; and that the word `conduct' encompasses any criminal act done in furtherance of the planned and intended act." (Emphasis added.) 57 Ill. 2d 493, 497.
5 Applying these legal principles to the facts of the present case, Bevley and Martin are accountable for the attempted murders committed by Mitchell and Bell because the evidence was sufficient to *598 support finding that they all had a common design to perform the unlawful acts which resulted in the murder of Ronald Yates.
Another issue raised by Bevley and Martin is that the trial court erred in declining to answer a question from the jurors. During their deliberations, the jurors sent a note to the trial court asking, "Does any testimony place V. Bevley or W. Martin in the blue car at the time of the first shooting?" According to Bevley and Martin, the court committed reversible error by not informing the jury there was no testimony that Bevley and Martin accompanied Mitchell during the first shooting.
Trial courts in Illinois have discretion to permit or refuse a request from a jury that it be permitted to review or hear a transcript of trial testimony. (People v. Pierce (1974), 56 Ill. 2d 361, 364; People v. Queen (1974), 56 Ill. 2d 560, 565; People v. Autman (1974), 58 Ill. 2d 171, 176.) But the trial court does not have authority to answer a question from the jury which calls for the court to give a conclusion based on its evaluation of the evidence. People v. Williams (1975), 60 Ill. 2d 1, 13.
6 The line drawn by the supreme court in these cases gives trial courts discretion to permit a jury to hear a replay of certain testimony, but prohibits the court from usurping the jury's function as trier of fact. Even assuming that the trial court could have answered the jury's inquiry in the present case without the court abandoning its role as a neutral referee, we find that the court did not abuse its discretion.
In its discussion with counsel, the trial court acknowledged that there was no direct evidence identifying Bevley and Martin as occupants of the blue car during the first shooting incident. But the court also realized that there was substantial circumstantial evidence placing them in the car. The court therefore concluded that telling the jury there was no such "testimony" might amount to judicial oversteering, usurping the jury's function as trier of fact. The court's decision was within the range of reason, and it did not constitute an abuse of discretion.
The next issue concerns prosecutorial argument. According to the defendants, the prosecutors (a) violated an in limine order, (b) gave unsworn testimony during argument; (c) made improper rebuttal argument; (d) misstated the law of accountability; and (e) improperly belittled the prosecution's burden of proof.
The prosecution had intended to present testimony that the unusual hand gestures made by Kevin Mitchell signified membership in a particular street gang the Disciples. Through a motion in limine the *599 defense sought to preclude any mention of the gestures themselves and of their significance. The court's in limine order prohibited the prosecution from presenting evidence that the gestures signified affiliation with the Disciples, but the court permitted introduction of eyewitness testimony and demonstrations concerning the gestures themselves, as well as testimony concerning the reaction to the gestures from other partygoers.
Mitchell's attorney argued that there was a substantial likelihood the jury would conclude, even without explanatory testimony, that the gestures signified membership in a street gang. Counsel therefore concluded that this would violate the in limine order prohibiting introduction of testimony that the gestures signified affiliation with the Disciples. The court emphatically replied, "No, No, No, that wouldn't violate it, what they figure out isn't going to violate any ruling."
Then, during rebuttal argument, a prosecutor made the following comments:
"[Y]ou heard that Kevin [Mitchell] was making these hand motions. Don't you think those meant something?
* * *
Don't you think that meant something?
* * *
The people that these were made to got angry he was making motions * * * and a fight resulted therefrom. This is Cub Scouts [indicating], this is Boy Scouts [indicating]. Don't you think this nonsense means something too. [Indicating.] * * * Don't you think it indicates why somebody was kicked out of the party? They were telling the people who they were."
The defendants argue that these comments violated the court's in limine order, and constituted unsworn testimony, as well as improper rebuttal. However,
"[I]n the absence of express prohibition every fact which, in no illegal manner, comes to the knowledge of the jury during the progress of a trial, and which may reasonably influence their judgment is a proper subject of comment in argument." (Emphasis added.) People v. Williams (1968), 40 Ill. 2d 522, 529-30; see also People v. Wright (1974), 56 Ill. 2d 523, 531 ("The initial test which must always be considered is whether the argument complained of is based upon relevant evidence in the record or legitimate inferences deducible therefrom").
The key question in the present case is whether the trial court's in limine order expressly prohibited the prosecution from arguing that the gestures made by Mitchell signified gang membership. As the *600 supreme court noted in Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 550, "[I]t is imperative that the in limine order be clear and that all parties concerned have an accurate understanding of its limitations."
7 The in limine order in the present case prohibited the prosecution from adducing evidence that Mitchell's gestures identified him as a member of a particular gang the Disciples. But the gestures themselves were in evidence, and the trial court contemplated that the jurors could, and almost certainly would, infer that the gestures signified membership in a street gang. The court's order may not have been as precise as it could have been, but the gestures themselves, as well as the reactions they caused, were properly in evidence, and in light of the court's statement that "what they figure out isn't going to violate any ruling," we cannot conclude that the prosecution violated an express prohibition by presenting argument implying the gang-related significance of the gestures.
Furthermore, these comments constituted reasonable inferences based on the evidence, and they did not amount to unsworn testimony. A similar comment that this case was reminiscent of a 1920's gangland slaying also constituted a reasonable inference based on the evidence.
We agree, after examining the record, that these comments constituted improper rebuttal argument because they were new arguments rather than responses to defense arguments (see People v. Bundy (1920), 295 Ill. 322, 330-31), but we do not think the jury could possibly have failed to realize the significance of Mitchell's gestures. The error is not reversible because there is no reasonable likelihood that it could have affected the results of the trial. See People v. Kirkwood (1959), 17 Ill. 2d 23, 33; People v. Allen (1959), 17 Ill. 2d 55, 63.
Defendants Bell, Bevley, and Martin argue that it was improper for the prosecutor to state, in the comments quoted above, "They were telling the people who they were." However, there was no objection made to this comment during trial, and the right to assert that this comment was improper has been waived. See People v. Carlson (1980), 79 Ill. 2d 564, 577; People v. Dukett (1974), 56 Ill. 2d 432, 442; People v. McCurrie (1929), 337 Ill. 290, 296.
Bevley and Martin also argue the prosecutor committed reversible error by stating, over objection, that "mere presence at the scene is enough as the instructions will tell you if you've got the intent to aid or abet or you even attempt to aid or abet."
8 As we noted above, presence at the scene of a crime, plus intent *601 to aid if needed, is sufficient to call for accomplice liability if the intent to aid was communicated to the principal. The prosecutor's comment was not as precisely phrased as it should have been, but (1) the jury was properly instructed, and (2) the comment itself expressly referred the jurors to the court's instructions of law. Also, the error was not emphasized or repeated, and we are convinced that there is no reasonable likelihood that the misstatement could have affected the results of the trial.
The last contention concerning prosecution argument concerns a comment in which the prosecutor told the jurors that the burden of proving guilt beyond a reasonable doubt is "the same burden, and the same presumption [of innocence] that put about twelve thousand people in the penitentiary, the same one."
Similar comments have been held improper on the grounds that they "had the effect of lessening the importance of the State's burden of proof by implying that reasonable doubt was merely a pro-forma or minor detail." People v. Martinez (1979), 76 Ill. App. 3d 280, 285; accord, People v. Frazier (1982), 107 Ill. App. 3d 1096, 1102.
9 Assuming that the comment in question was improper, the error was not reversible because the jury was properly instructed on the prosecution's burden of proof, and the comment did not negate these instructions or shift the burden of proof to the defendants. (Compare People v. Weinstein (1966), 35 Ill. 2d 467, 469-70.) It must be presumed that the jurors followed the court's instructions, and we conclude there is no reasonable likelihood that the results of the trial would have differed in the absence of the comment in question.
Finally, the defendants argue the trial court erred by imposing concurrent sentences for each defendant on the five attempted-murder counts, and the five counts of armed violence based on attempted murder.
The supreme court has held that, because the legislature did not clearly manifest a contrary intent, the armed-violence statute (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-1 through 33A-3) must be construed as providing "that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges." People v. Donaldson (1982), 91 Ill. 2d 164, 170; accord, People v. Simmons (1982), 93 Ill. 2d 94, 97.
10 The evidence in the present case shows that up to six shots were fired during the second shooting. One shot was the basis for convicting each defendant of murder, and the other shots provided the basis for finding each defendant guilty of five counts of attempted *602 murder and five counts of armed violence based on the underlying felony of attempted murder. But each armed-violence conviction was based on the same discrete physical act as the corresponding attempted-murder conviction. Therefore, under Donaldson, the underlying attempted-murder convictions should have been vacated.
We note the prosecution argues on appeal that the shots fired by Mitchell during the initial shooting incident constitute separate offenses justifying additional convictions for each defendant. However, the case was not tried on this theory, and fundamental requirements of due process mandate that the defendants' convictions cannot be affirmed based on crimes for which they were not tried.
Based on all the foregoing reasons, we vacate the defendants' convictions for attempted murder, and we affirm the rest of the trial court's judgments.
Affirmed in part; vacated in part.
WILSON, P.J., and MEJDA, J., concur.
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742 S.W.2d 279 (1986)
Loyal E. LUNDSTROM, Appellant,
v.
The STATE of Texas, Appellee.
No. 898-84.
Court of Criminal Appeals of Texas, En Banc.
April 23, 1986.
On Rehearing April 8, 1987.
*280 Bill B. Hart, Eastland, for appellant.
Emory C. Walton, Dist. Atty., Robert Huttash, State's Atty., and Alfred Walker, First Asst., State's Atty., Austin, for the State.
Before the Court en banc.
*281 OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
Appellant was convicted of the murder of his wife by a jury that assessed his punishment at life imprisonment. The conviction was affirmed by the Eleventh Court of Appeals. Lundstrom v. State, 678 S.W.2d 130 (Tex.App.Eastland 1984). We granted appellant's petition to review the court of appeals' holding that appellant's motion for change of venue was properly overruled by the trial court.
At the time of the killing appellant and the deceased had been married for ten years and had five children. They operated a motel and a cemetery monument business together and were both prominent in local affairs. Appellant was the mayor pro tem of Cisco, a town of 4,200. His wife was president of the P.T.A. Both were active in their church.
The murder, appellant's flight from the State, his voluntary return, and preparations for his trial were covered extensively by the press that served Eastland County. Also uncovered and widely disseminated was the news that appellant had been convicted of manslaughter in the death of his first wife, in Minnesota. That conviction had been reversed by the Minnesota Supreme Court and appellant had not been retried.
Appellant's counsel filed a pretrial motion for change of venue alleging appellant could not receive a fair trial in Eastland County due to pervasive prejudice against him. The motion was supported by the affidavits of five residents of Eastland County in conformity with Article 31.03 V.A.C.C.P.[1] The State filed a motion alleging appellant could receive a fair trial in the county, supported by the affidavits of five residents.
When the motion for change of venue came for a hearing appellant contended that the State's affidavits did not properly controvert appellant's in accordance with 31.04, V.A.C.C.P., and appellant was therefore entitled to change of venue as a matter of law. The trial court decided "to treat your motion as a motion for summary ruling on the change of venue," denied the motion, and invited appellant to put on his evidence. Appellant's counsel, citing caselaw to the court holding that putting on evidence would waive his objection to the form of the State's controverting affidavits, declined to do so. No evidence was heard, and appellant's motion was denied.
A defendant seeking a change of venue must file a written motion supported by affidavits of at least two credible residents of the county (known as compurgators), asserting that the defendant cannot receive a fair trial in that county due to either prejudice or a combination of influential persons against him. Article 31.03, supra. If the defendant's motion is not in the proper form, it is not error for the trial court to overrule it without a hearing. Ward v. State, 505 S.W.2d 832 (Tex.Cr. App.1974) (not supported by affidavits of at least two credible persons); Donald v. State, 453 S.W.2d 825 (Tex.Cr.App.1970) (motion not sworn); Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App.1970) (motion supported only by the affidavit of defendant's attorney). If the motion is proper on its face, however, the defendant is entitled to a change of venue as a matter of law, unless the State properly challenges the defendant's motion. Revia v. State, 649 S.W.2d 625 (Tex.Cr.App.1983). As explained in McManus v. State, 591 S.W.2d 505, 516 (Tex.Cr.App.1980):
"... if no controverting affidavit is filed by the State, the defendant is entitled to *282 a change of venue as a matter of law. [citations omitted] The reason that the defendant is entitled to this change as a matter of law is because in the absence of controverting evidence, there is no issue of fact to be resolved. When there is no issue of fact to be determined by the trial court, and no place for its exercise of discretion, it must grant the defendant's motion. This is the reason it is stated that in this situation, a defendant is entitled to such a change as a matter of law." [emphasis in original.]
The defendant waives this right if he participates in a hearing on the motion when the State has filed no controverting affidavits or an improper controverting motion. "Where the defendant ... allows the trial court to hear the merits of the issue and to thus exercise its discretion in determining the issue of fact, he cannot thereafter argue that no issue of fact was raised and that he was entitled to the change as a matter of law." Id. See also Fields v. State, 627 S.W.2d 714 (Tex.Cr.App.1982); Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr. App.1978). Therefore if the defendant, though entitled to a change of venue as a matter of law, nevertheless puts on evidence concerning the reasons for the change of venue, and allows the State to do so, the issue then becomes one of fact for the trial court to determine.
In the instant case appellant's motion was proper as to form and supported by affidavits of five residents of the county, who asserted that appellant could not receive a fair trial therein due to prejudice against him. The State contends, inter alia, that these affidavits were insufficient because they stated it was the "opinion" of the affiants that defendant could not receive a fair trial in Eastland County. The court of appeals held these affidavits defective: "The affidavits do not swear to the `fact' that: `There exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial.' See TEX. CODE CRIM.PRO.ANN. art. 31.03." Lundstrom, supra, at 133.
The sentence quoted in the opinion is from 31.03, but from what source the word "fact" is quoted is unclear. It appears nowhere in 31.03, which states a change of venue may be granted "for either of the following causes ..." (Emphasis added.) Of course whether great enough prejudice exists to deny appellant a fair trial was a question of the compurgators' opinions. In Burleson v. State, 131 Tex. Crim. 576, 100 S.W.2d 1019, 1021 (1937) (On State's motion for rehearing), affidavits saying "... we do not believe that a fair and impartial trial in this county can be had ..." were held sufficient. In Runnels v. State, 152 Tex. Crim. 545, 213 S.W.2d 545 (1948), the defendant was held entitled to a change of venue as a factual matter after thirteen witnesses testified it was their "opinion" he could not receive a fair trial. Those opinions must be based on facts, but sworn opinions alone are enough to raise the issue. Id., at 546. Though it would perhaps have been preferable for appellant's compurgators simply to have sworn that appellant could not receive a fair trial, the affidavits need not follow the exact wording of the statute. Hussey v. State, 590 S.W.2d 505 (Tex.Cr.App.1979) ("... in our opinions, there does in fact exist ... a dangerous combination against the defendant... by reason of which the defendant cannot expect a fair trial ..." was sufficient to comply with Article 31.03).
Appellant's motion for change of venue was properly made and properly supported. That placed the burden on the State, if it wished to challenge the motion, to controvert appellant's affidavits in the manner prescribed by Article 31.04, V.A.C. C.P.:
"The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant."
The State in this case also filed affidavits from five persons, but these attacked neither the credibility nor the means of knowledge *283 of appellant's compurgators. Instead the State's affiants swore that appellant could receive a fair trial in the county.
The original of Article 31.04, stated in virtually identical language, was art. 583, passed in 1879. From the beginning it was held that this article supplied the only means by which the State could challenge a defendant's motion for change of venue. In Davis v. The State, 19 White & W. 201 (Ct.App.1885) the court of appeals interpreted the relatively new article:
"The State has the right to controvert the application; but in what manner? How must this be done? The manner is plainly pointed out in this article. This must be done by the affidavit of some credible person that the general reputation of the supporting affiants is bad ...; or by the affidavit of some credible person that their means of knowledge are not sufficient to support and justify the statements contained in their said affidavits... The credibility or means of knowledge of the persons making the affidavit being thus attacked, an issue is formed between the defendant and the State ...
... Now, if there be no affidavit of a credible person made controverting the affidavit [sic: credibility?] of the defendant's supporting affidavits, the change must be granted, because there is no issue between the parties. But where the affidavit of some credible person is made controverting the credibility or the means of knowledge of the compurgators, an issue is formed; and, until this be done, there being no issue between the parties, there is nothing `to be tried and determined' by the judge."
Id., at 221-222. In Davis the district attorney's affidavits only asserted that the defendant could receive a fair trial, and so did not properly controvert the defendant's affidavits. (The defendant, however, waived his right to a change of venue by putting on evidence at a hearing.) Id., at 222-223.
Carr v. The State, 19 White & W. 635 (Ct. App.1885), from that same year, reversed and remanded a case in which the State filed nine affidavits in response to the defendant's application for change of venue, "but neither the credibility or means of knowledge of defendant's supporting affiants is attacked." Id., at 656.
These hundred year old cases have been cited as recently as Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978) (capital murder conviction reversed because the State filed no controverting affidavits) and Turner v. State, 641 S.W.2d 383 (Tex.App.El Paso 1982, PDR ref'd) (a case directly on point with the instant case but reaching an opposite result from that of the court of appeals herein).
The State cites two cases of the same approximate vintage as Davis and Carr, Dunn v. The State, 7 White & W. 600 (Ct. App.1880), and Meuly v. State, 26 White & W. 274, 9 S.W. 563 (1888), for the proposition that the State need file no controverting affidavits in order to make a factual issue of the change of venue question. Any language to that effect in those cases is dicta because in both Dunn and Meuly the State did properly controvert the defendant's affidavits and evidence was heard on the issue. Furthermore, a hundred years of precedents since have held the opposite, that a defendant is entitled to the change of venue as a matter of law when the State files no controverting affidavits. Revia, supra; Durrough, supra; Roy v. State, 608 S.W.2d 645, 647 (Tex.Cr.App.1980).
The State further contends that its affidavits did properly controvert appellant's. By asserting that appellant could receive a fair trial, the State's affiants implicitly attacked the credibility or means of knowledge of appellant's compurgators who asserted he could not.
The Legislature, however, has been very specific as to the manner in which the State is to controvert a defendant's affidavits. In one hundred years of judicial interpretation that Article 31.04 and its predecessors describe the only methods by which the State may make such a challenge, the Legislature has seen fit to leave the article virtually unchanged, through three incarnations *284 of the Code of Criminal Procedure.[2]
Before art. 583 went into effect in 1879 it was not entirely clear how the State could challenge a defendant's application for change of venue. In 1875 the State attempted the method used by the State in the instant case: filing affidavits that simply contradicted the defendant's. In Walker v. The State, 42 Tex. 360 (1875), the defendant had filed a proper application for change of venue supported by three affidavits. The State filed forty-nine "controverting" affidavits alleging the defendant could receive a fair trial in the county, but not directly attacking the credibility or means of knowledge of the defendant's compurgators. The Texas Supreme Court found these forty-nine affidavits insufficient to raise a fact issue, reasoning thusly:
"Supposing the three persons supporting the defendant's application to be credible, which we must, as their credibility was not attacked, the law had been complied with, which, prima facie, gave him the right to have the venue changed. If that is allowed to be resisted and overborne by counter affidavits of a negative character, such as that in this case, made by a number of persons, the determination of his right to a change of venue would descend into a struggle between him and the District Attorney to get the greater number of persons to swear for and against the application; and the stronger the prejudice against him the more certain would be his defeat if thus determined."
Id., at 377.
The State must instead show that the defendant has not made out a prima facie case for change of venue, because his supporting affidavits are not to be believed. It is in this way the legal issue becomes a factual issue, and evidence is to be heard from both sides. The Legislature apparently found this method satisfactory, because art. 583, enacted four years later, is essentially a codification of the holding of Walker.
The State's affidavits in the instant case were, under 31.04, insufficient to raise a factual issue, and appellant was entitled to a change of venue as a matter of law.
Finally, the court of appeals noted that individual voir dire was granted in this case, allowing appellant's counsel to question each prospective juror as to his ability to afford appellant a fair trial, free of prejudice. "We note that all twelve jurors were accepted by appellant and that appellant did not use all of his peremptory challenges. See Von Byrd v. State [supra]." Lundstrom, supra, at 134. This observation misses the point. Von Byrd, as noted supra, was a case in which the defendant waived his right to change of venue as a matter of law by putting on evidence. The issue thus became one of fact, in which it was appropriate for this Court to review all the circumstances militating against a finding of prejudice. In appellant's case that stage was never reached. He remained entitled to a change of venue as a matter of law, no matter what the veniremen said during voir dire: "... the selection of an unbiased jury is insufficient to satisfy the State's burden to join issue with a motion for change of venue." Fields v. State, 627 S.W.2d 714, 719 (Tex.Cr.App.1982).
Appellant properly moved for change of venue and the State failed to controvert that motion in the manner prescribed by Article 31.04. Appellant was therefore entitled to a change of venue as a matter of law. It was error to deny his motion.
The judgments of the trial court and the court of appeals are reversed and the cause is remanded to the trial court for new trial.
MILLER, Judge, concurring.
The dissent "gleans" that once the defendant files his affidavits supporting a motion for change of venue, the State's controverting affidavits need only "show that such prejudice does not exist." (At *285 287). To hold otherwise is, to paraphrase the dissent, to elevate the importance of magic phrases and incantations at the expense of the real substance of the issue and is further a retreat from this Court's recent moves away from the concept of "automatic" reversible error as exemplified in Almanza v. State, 686 S.W.2d 157 (Tex. Cr.App.1985) (abolishing the concept of automatic reversal in jury charge error); Adams v. State, 707 S.W.2d 900, (Tex.Cr. App.1986) (abolishing the concept of automatic reversal in motion to quash error); Santana v. State, 714 S.W.2d 1, (Tex.Cr. App. No. 68,930, delivered April 9, 1986) (abolishing the concept of automatic reversal in voir dire questioning error). I beg to differ with the dissenters on both points.
The Chapter 31, V.A.C.C.P. statutory means by which an issue concerning change of venue is joined, as consistently interpreted by this Court since the last century, acknowledges the trait of human nature that we seldom all agree on anything. It is plainly contemplated, it seems to me, that the State will always be able to get as many witness affidavits stating that the defendant can obtain a fair and impartial trial as the defendant will be able to get stating that he cannot. So rather than enter into the numbers game feared by Chief Justice Roberts in Walker v. The State, 42 Tex. 360 (1875), as quoted by the majority opinion (page 284), it is contemplated that if at least two persons whose credibility or means of knowledge has not been attacked by affidavit under oath believe that the defendant cannot expect or obtain a fair trial, then no further proceedings are relevant to the question. The motion is to be granted as a matter of law notwithstanding the acknowledged reality that the State is most certainly able to find witnesses who have a contrary opinion.
The threshold question therefore is not whether the defendant can, as a matter of reality, receive a fair trial but whether at least two people in the community whose credibility and means of knowledge are unassailed believe that he can't expect or obtain one. Only when the credibility or means of knowledge of the witnesses has been challenged by affidavit[1] does the trial court enter into the determination of the merits of the motion.[2] At that point, as pointed out by Presiding Judge White in Meuly v. State, 26 White & W. 274, 9 S.W. 563 (1888) (cited as supportive by the majority and the dissent) the issue is the existence or non-existence of prejudice rather than the credibility or means of knowledge of the witnesses who swore to the affidavits.
This, in the wisdom of the Legislature, is the procedure and it is their prerogative to change this procedure or leave it substantially unchanged. As the majority correctly points out, they have since the 1800's chosen the latter course. At the risk of being redundant I must point out that the majority opinion, rather than being an "effort to promote form over substance" (dissenting opinion, opening sentence), is merely adhering to stare decisis and the Legislature's choice.
As a proponent of the holdings in Almanza, supra, Adams, supra, and Santana, supra, I feel further compelled to point out that the gist of those cases did not so much involve a change in what was error but rather promulgated a change in the effect of the commission of the error. If one wants to complain that the majority opinion is a retreat from the spirit of these cases, one might attack the majority for not finding that the error here was harmless in light of the fact a jury of seemingly fair and impartial citizens was in fact chosen.[3] But in maintaining that what has *286 been error for a hundred plus years is still error, the majority in no way retreats from the spirit of Almanza, supra, Adams, supra, and Santana, supra.
With these comments, I join the majority opinion.
CAMPBELL, Judge, dissenting.
One would cast his eyes upon the land and not find a greater effort to promote form over substance than the majority opinion in the instant case. It is by all conceded that the controverting affidavits filed by the State in answer to appellant's motion for change of venue did not attack such motion by the specific magical incantation "no credibility or no means of knowledge". But can it seriously be doubted that the controverting affidavits attack the very heart of the appellant's motion for change of venue i.e., there existed in Eastland County so great a prejudice against him that he cannot obtain a fair and impartial trial?
The majority opinion would decry the overruling of precedent 100 years in age, and in doing so, sets its feet in the concrete of Davis v. State, 19 Tex.Ct.App. 201 (1885) and Carr v. State, 19 Tex.Ct.App. 635 (1885). So be it. Let us also then examine the holdings in Meuly v. State, 26 White & W. 274, 9 S.W. 563 (1888) and Pierson v. State, 21 White & W. 14, 17 S.W. 468 (1885).
In Pierson, supra, Presiding Judge White opined that a State's controverting affidavit was sufficient which contained a "general denial of the sufficiency of means of knowledge of the compurgators," without more. In other words, that Court sanctioned the mere conclusory recitation of one of the statutory requirements of attacking a defendant's motion for change of venue. But three (3) years later in Meuly, supra, the same Presiding Judge White explicated the following:
"To show that such prejudice did not exist manifestly tends most strongly to prove that they did not possess correct means of ascertaining the truth of the matter."
Id., 9 S.W. at 564. Thus the same Court of Appeals that decided Davis, supra, and Carr, supra, acknowledged implicitly in Meuly, supra, that affidavits such as those filed by this State in the instant case would be sufficient to controvert the motion for change of venue in the instant case.
What I glean from all of these old cases is that the burden is on a defendant to file his motion for change of venue with supporting affidavits, and that the State must then either default by filing nothing, see Durrough v. State, 562 S.W.2d 488 (Tex. Cr.App.1978), or join issue by filing controverting affidavits to show that such prejudice does not exist. It may successfully controvert by means of a general denial of the "credibility" or "means of knowledge" of the defendant's compurgators, or it may, as in the instant case, generally deny that there exists "so great a prejudice against" the defendant or a "dangerous combination against" the defendant so that "he cannot expect a fair trial." See generally, Art. 31.03, V.A.C.C.P.
By elevating magic phrases or incantations such as "credibility" or "means of knowledge" to the sacred altar of fundamental error, the majority seriously erodes what a majority of this Court accomplished in Almanza v. State, 686 S.W.2d 157 (Tex. Cr.App.1985) and Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986). To such erosion, I vigorously dissent.
ONION, P.J., and TOM G. DAVIS and W.C. DAVIS, JJ., join in the dissent.
OPINION ON STATE'S MOTION FOR REHEARING
WHITE, Judge.
On rehearing, the State Prosecuting Attorney argues that our opinion on original submission erroneously evaluated *287 the State's controverting affidavits in the instant case. The majority held the State's affidavits failed for lack of specificity ("the Legislature, however, has been very specific as to the manner in which the State is to controvert the defendant's affidavits."). The majority concluded that, as a result, the appellant should have been granted a change of venue as a matter of law. Lundstrom v. State (No. 898-84 delivered April 23, 1986).
We now conclude that the dissenting opinion was correct on original submission and we adopt it. See Dingler v. State, 705 S.W.2d 144, 150 (Tex.Cr.App.1984).
In accordance with the decisions of Dunn v. State, 7 White & W. 600 (1880), Pierson v. State, 21 White & W. 14, 17 S.W. 468 (1885), and Meuly v. State, 26 White & W. 274, 9 S.W. 563 (1888), we find that affidavits, such as those filed by the State in the instant case, substantially controverted those filed by the appellant and therefore complied with Article 31.04, V.A.C.C.P., in order to join the issue of the defendant's entitlement to a change of venue. To the extent they are in conflict, Davis v. State, 19 White & W. 201 (1885), Carr v. State, 19 White & W. 635 (1885), and their progeny are overruled.
We hold that appellant was not entitled to a change of venue as a matter of law. The trial court did not err in overruling the appellant's motion.
The judgments of the trial court and the Court of Appeals are affirmed.
CLINTON, DUNCAN and TEAGUE, JJ., dissent.
MILLER, J., dissents for the reasons stated in his concurring opinion on original submission.
NOTES
[1] "(a) A change of venue may be granted in any felony or misdemeanor case punishable by confinement on the written motion of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine:
1. That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial; and
2. That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial."
[2] The article has not gone completely ignored. In the 1925 version of the Code of Criminal Procedure the long last sentence of the original was broken into two sentences, and in 1965 the word "motion" was substituted in place of the old "application." Those have been the only changes in more than a hundred years.
[1] A relatively easy feat to accomplish where the State truthfully believes their credibility or means of knowledge merits attack. See Mansell v. State, 364 S.W.2d 391, 395 (Tex.Cr.App.1963).
[2] Except of course where the defendant waives such challenge by affidavit by proceeding to a hearing without objection. Lewis v. State, 505 S.W.2d 603 (Tex.Cr.App.1974).
[3] The defense didn't use all his peremptory strikes, didn't object to any improper sustaining of State's challenges and didn't complain that any objectionable jurors served on the jury. Still the State neither makes such a harmless error contention nor asserts such a proposition in its petition for discretionary review (nor should such a contention be entertained for the first time on motion for rehearing). It must be remembered that in this case the appellant specifically relied on stare decisis and, after pointing out the relevant caselaw to the trial judge, gave up his right to present his evidence (as he had to in order to preserve error) and relied on the hitherto unchallenged fact that he need make no record of further harm.
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742 S.W.2d 134 (1987)
STATE ex rel. WILLIAM RANNI ASSOCIATES, INC., Relator,
v.
Honorable James R. HARTENBACH, Judge, Circuit Court of St. Louis County, Respondent.
No. 69380.
Supreme Court of Missouri, En Banc.
December 15, 1987.
*135 Adrian P. Sulser, Edward S. Meyer, St. Louis, for relator.
Alan J. Agathen, Clayton, for respondent.
HIGGINS, Judge.
William Ranni Associates, Inc., a New York corporation claiming that Missouri courts cannot exercise personal jurisdiction over it, seeks a writ of prohibition to prevent Judge Hartenbach from proceeding to trial on underlying claims against Ranni.[1] This Court issued a preliminary writ of prohibition which is now made absolute.
This proceeding arises from the resolution of a claim on a life insurance policy issued to Morris Victor, a Missouri resident who died September 23, 1981. Plaintiffs, beneficiaries under the policy, are the three children and former wife of Morris Victor. He was insured under a group life policy purchased and maintained by Thrifty Drug, *136 an Illinois corporation, where he was an employee and officer. The policy was issued by Manhattan Life Insurance Company with a face amount of $95,000. Ranni is the general agent of Manhattan Life with duties of transmitting the application from Thrifty Drug to Manhattan Life and the policy proceeds from Manhattan Life to the beneficiaries. It did not participate in the sale of the policy. Joseph Victor, a nephew of Morris Victor, was appointed executor of the estate by the will of Morris Victor. Believing himself to be the beneficiary under the policy, Joseph Victor submitted a claim for the policy proceeds. Manhattan Life determined on or about March 11, 1982, that Joseph Victor was not a policy beneficiary and so informed Ranni.
Plaintiffs subsequently filed suit contesting the will which designated Joseph Victor executor and principal beneficiary. In an effort to induce settlement of this lawsuit, Joseph Victor disclosed the existence of the Manhattan Life policy and plaintiffs' status as beneficiaries thereunder. Plaintiffs promptly submitted their claim to the policy proceeds August 31, 1983, and Manhattan Life paid the claim September 10, 1983.
Plaintiffs sued Ranni in Missouri for alleged breach of fiduciary and contractual obligations, as well as for negligent handling of the insurance policy and claim, seeking recovery for loss of use of the $95,000 benefit for the 14-month period during which payment was delayed, together with exemplary damages and attorney fees. Service on Ranni was made in New York under the provisions of the long arm statute, sections 506.500-510, RSMo 1986.
Ranni moved to quash service and dismiss the petition for lack of personal jurisdiction. Judge Hartenbach ordered the motion held in abeyance for 30 days so that plaintiffs could file jurisdictional interrogatories. Ranni claims the interrogatory answers demonstrate an absence of jurisdictional grounds. Plaintiffs claim that Ranni's interrogatory answers misrepresented its contacts with the State of Missouri. Because of this alleged misrepresentation, plaintiffs claim this Court should remand for further discovery. Even without further discovery, plaintiffs claim that sufficient contacts with Missouri have been established to satisfy the due process clause of the federal constitution and the Missouri long arm statute.
I.
Plaintiffs contend this Court should remand to the trial court to permit them to obtain additional record to support the trial court's ruling. They claim the record is incomplete because Ranni has manipulated the discovery process. Plaintiffs' interrogatories asked Ranni if it had any role in "processing the claim" of either Joseph Victor or plaintiffs on the life insurance policy in question. Ranni answered, "None." Plaintiffs assert this response is contradicted by the interrogatory responses of Manhattan Life which indicates that as "Manhattan Life's general agent, Ranni had primary responsibility for communications with Ranni's clients, in this case, Thrifty Drug." Manhattan's answers also revealed that Ranni participated in the relaying of information between its client, Thrifty Drug Company, and Manhattan Life, concerning the proceeds of the policy insuring Morris Victor's life. According to Manhattan, "Ranni's duties included receiving completed life insurance applications and forwarding them and other needed material to the home office. On the claims side, the duties included notifying the home office of the death of an insured, supplying the beneficiary or broker with claims forms, forwarding completed forms to the home office and forwarding claims checks to the broker or the beneficiary." Manhattan further states that "Ranni forwarded the death certificates and claim forms completed by Joseph Victor and Thrifty Drug Company to the home office." In addition, Manhattan states that "Ranni forwarded the check in payment of the benefits of the policy to the payee on or about September 13, 1983."
Plaintiffs claim that the term "processing the claim" includes the entire sequential procedure for handling a claim from beginning to end. Ranni argues that the term "processing the claim" involves only *137 the decision-making process of whether to pay the claim. Thus Ranni alleges it had no part in the processing of the claim, as indicated in its interrogatory answers.
Plaintiffs claim that Ranni, by incorrectly denying that it played a role in the processing of claims, was able to avoid answering follow-up interrogatories numbered 9 and 10. They believe answers to these interrogatories may have helped establish the nature, scope and extent of Ranni's contacts with the state of Missouri. These interrogatories asked Ranni if it had assisted in processing any other claim of Manhattan Life on policies issued to Missouri residents and requested identification of all such policies. By the time plaintiffs received Ranni's interrogatory responses the 30-day discovery period had lapsed and plaintiffs were foreclosed from further discovery. When Ranni's motion to dismiss came before the trial court, after close of the discovery period, plaintiffs had no reason to challenge Ranni's interrogatory answer 8 and seek an augmentation of the record regarding Ranni's contact with this state because the motion was denied.
Since this Court granted the preliminary writ of prohibition, plaintiffs ask remand to the trial court for further discovery. They cite Se-Ma-No Electric Cooperative v. City of Mansfield, 321 S.W.2d 723, 730 (Mo.App. 1959); State ex rel. McElvain v. Riley, 276 S.W. 881, 883 (Mo.App.1925); 63A Am. Jur.2d, Prohibition, section 88 (1984), for the proposition that this Court has authority on a petition for a writ of prohibition to remand to the trial court with instructions for further action.
None of the authorities cited involved prohibition where the court remanded for further discovery. In the absence of extraordinary circumstances, this Court will either make the writ absolute or quash the preliminary writ, depending on whether plaintiffs have met the burden of establishing sufficient contacts with Missouri to satisfy due process. This dispute regarding the meaning of a discovery term could not be characterized as an extraordinary circumstance. Accordingly, this Court denies plaintiffs' request for remand and will limit the inquiry to whether plaintiffs have met their burden of establishing jurisdictional contacts.
II.
Ranni contends that Judge Hartenbach exceeded his jurisdiction in denying Ranni's motion to quash and dismiss for lack of personal jurisdiction. Ranni alleges it did not have sufficient minimum contacts with the state of Missouri to make it amenable to process in this state in compliance with the due process clauses of the federal and Missouri constitutions.
Prohibition is the proper remedy to prevent further action of the trial court where personal jurisdiction of the defendant is lacking. State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (1956).
When a defendant raises the issue of lack of personal jurisdiction, the plaintiff has the burden of pleading and proving the existence of sufficient minimum contact with a forum state to justify the exercise of jurisdiction. State ex rel. Honda Research & Development Co., Ltd. v. Adolf, 718 S.W.2d 550, 552 (Mo.App.1986). Plaintiff must prove the suit arose out of an activity covered by the long arm statute, section 506.500, RSMo 1986, and that defendant had sufficient minimum contacts with Missouri to satisfy due process requirements. Medicine Shoppe Intern., Inc. v. J-Pral Corp., 662 S.W.2d 263 (Mo.App.1983). "[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' " State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 893 (Mo. banc 1970). "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of the rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant *138 purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40, 2 L. Ed. 2d 1283 (1958). In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum and the litigation. Calder v. Jones, 465 U.S. 783, 788, 104 S. Ct. 1482, 1486, 79 L. Ed. 804 (1984).
Ranni contends that it is not subject to jurisdiction in Missouri courts because it conducted no purposeful activity within the state, citing State ex rel. Bank of Gering v. Schoenlaub, 540 S.W.2d 31 (Mo. banc 1976). In Gering, plaintiff sought to recover damages from a nonresident bank for its allegedly negligent failure to notify plaintiff within a reasonable time that certain bank drafts would not be honored. This "negligence" allegedly caused the plaintiff to sustain damage in Missouri. This Court held that personal jurisdiction could not constitutionally be exercised against the defendant because it had not purposefully availed itself of the privilege of conducting activities in this state. Gering, 540 S.W.2d at 35.
Plaintiffs claim Gering is distinguishable because the Bank of Gering had not solicited the business of the Missouri resident. The Missouri resident, the plaintiff, had deposited a draft in his Missouri bank, drawn on defendant's account at the Bank of Gering. The Court said it was unforeseeable to the Nebraska bank that such a draft would originate in Missouri and therefore that a Missouri resident would suffer adverse consequences from a mishandling of the draft.
Plaintiffs contend that in this case, the record supports an inference that the policy was sold in an interstate marketing scheme. They allege that Ranni, as part of that scheme, knew in advance that the activities rendered in execution of its obligations might well have interstate consequences. Thus, respondent argues Ranni is subject to the jurisdiction of Missouri courts because it had reason to know that these consequences might affect Missouri residents.
This argument is not persuasive. Because someone in Missouri conceivably could suffer a financial loss as a result of Ranni's out-of-state activities does not make Ranni amenable to the courts of this state. This Court rejected a similar argument in Gering. In order to satisfy due process, a defendant must also purposefully avail itself of the benefits and protections of the forum's laws. Those cases involving a defendant who shipped a product into Missouri which ultimately caused a physical harm in this state are inapposite. See, e.g., Deere, 454 S.W.2d 889. The minimal contacts required in the products' liability area involving stream of commerce are less stringent than in other areas. State ex rel. Wichita Falls General Hospital v. Adolf, 728 S.W.2d 604, 608 (Mo.App. 1987).
The jurisdictional contacts in Wichita Falls are similar to those in this case. The court there considered a wrongful death action against the hospital which had supplied a donated heart for transplantation purposes. The hospital was incorporated in Texas, with its principal place of business in that state. It had no agents and did not conduct any business in Missouri. The court concluded that due process would not support the exercise of long arm jurisdiction over the hospital because the defendant did not purposefully avail itself of the benefits and protections of the forum's laws. The court explained that the "purposeful availment" requirement:
ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts ... or of the "unilateral activity of another party or third person,".... Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum State.
State ex rel. Wichita Falls, 728 S.W.2d at 607-608, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985).
*139 In Wichita Falls, the record demonstrated that the contacts were fortuitous because the defendant had no history of contacts with Missouri, did not utilize the benefits of the laws of Missouri, and did not purposefully select a Missouri resident as the recipient of the organ to be transplanted. The record further established that although the supplying of the organ had an effect in Missouri, the contact with Missouri resulted from the unilateral activity of the co-defendants.
In this case Ranni's only involvement was as a conduit of information between Manhattan Life and Thrifty Drugs. Plaintiffs have shown no history of contacts with the state of Missouri; they have not shown that Ranni maintained any agents, transacted any business, or committed any tortious act within the state. That Missouri residents were named as beneficiaries was random, fortuitous and the result of unilateral activity of the insured. Any contact with Missouri was initiated by the other parties, Manhattan Life and Thrifty Drugs. Any failure to act on the part of Ranni occurred in New York, not in Missouri. In short, Ranni has not purposefully availed itself of the laws and protections of Missouri and therefore contacts with Missouri are not sufficient to meet constitutional due process.
Because Ranni did not purposefully avail itself of the privilege of conducting business in Missouri, it is unnecessary to discuss plaintiffs' contention that Ranni conducted business within this state which would constitute a jurisdictional act under the long arm statute, section 506.500, RSMo 1986.
III.
Plaintiffs argue that Missouri courts can properly assert jurisdiction over Ranni because it committed a tortious act within the state, citing State ex rel. Caine v. Richardson, 600 S.W.2d 82 (Mo.App. 1980). A single tortious act is sufficient to support personal jurisdiction consistent with due process standards. Caine, 600 S.W.2d at 84. Commission of a tortious act within this state includes extraterritorial acts of negligence producing actionable consequences in Missouri. Caine, 600 S.W. 2d at 85. A party relying on a defendant's commission of a tort within this state to invoke long arm jurisdiction must make a prima facie showing of the validity of his claim. Deere, 454 S.W.2d at 892.
Ranni contends that plaintiffs failed to make such a showing because Ranni's obligation to carry out Manhattan Life's instructions to notify beneficiaries inured only to the benefit of Manhattan Life. Ranni further argues that plaintiffs are mere incidental or donee beneficiaries of the contract between Ranni and Manhattan Life and therefore lack standing to sue it for the alleged breach of contractual duties.
On the question whether Ranni committed a tort in allegedly failing to notify plaintiffs of the existence of the policy in a timely manner, Ranni cites 44 C.J.S. Insurance, section 165, (1945), which cites Greyhound Corporation v. Commercial Casualty Insurance Co., 259 A.D. 317, 19 N.Y.S.2d 239 (N.Y.Sup.Ct.1940), for the proposition that an agent, acting within the scope of his authority, is not liable in tort to third persons for economic harm caused by his actions. Greyhound held that an agent who allegedly induced the insurance carrier (the principal) to breach an insurance contract between his employer and a third person, does not become liable in tort for the breach. Procuring the breach of a contract is a wrong committed against the principal, not the insured. The agent is liable only if he commits acts which would constitute an independent tort.
Plaintiffs counter by citing three Missouri decisions, Lee v. Allen, 120 S.W.2d 172 (Mo.App.1938); Guthrie v. Albert Wenzlick Real Estate Co., 54 S.W.2d 801 (Mo.App.1932); Case v. Missouri Public Service Corp., 78 F. Supp. 776 (W.D.Mo. 1948), for the proposition that an agent's misfeasance in the execution of his duties can render him liable to a third party injured thereby. These cases can be distinguished because they involve an agent who committed separate tortious acts. None of *140 the cases cited involve a situation where the agent's only wrong is an alleged breach of duties owed to his principal. Because this case does not involve an agent's independent tortious conduct, Ranni is not liable for the alleged failure to notify plaintiffs. See, e.g., American Insurance Co. v. Material Transit, Inc., 446 A.2d 1101, 1104 (Del.Super.1982). American Insurance held that an agent owed no duty of care to insured for economic harm resulting from the agent's failure to inform the insured of increased premium rates. The premise of this holding is that the agent is the agent for the insurance carrier, not the insured. Thus, the agent's only duty to avoid the economic loss was owed to the principal. The court relied on Restatement of Agency, section 357 (1958), for the proposition that an agent is not liable for economic loss to third persons when he negligently fails to perform duties owed only to his principal.
On the question of whether Ranni committed a tort in causing a breach of the life insurance contract, Restatement (Second) Agency, section 320, 328 (1958), and 16 Appelman Insurance Law and Practice, section 8832 at 30 (1981), establish that an agent for a disclosed principal is not a party to a contract and is not liable for its nonperformance. See also Grether v. DiFranco, 178 S.W.2d 469, 473 (Mo.App. 1944). Thus the only parties to this allegedly breached contract for life insurance are Manhattan Life and Thrifty Drug. Ranni is not personally liable to the plaintiffs for economic loss caused by acts performed within the scope of its authority. Had plaintiffs been able to establish that they were third party beneficiaries, Ranni would not be liable because it was not a party to the contract. If plaintiffs suffered economic loss from the acts of Ranni as an agent, their remedy is to sue the principal, Manhattan Life, who is subject to the jurisdiction of Missouri courts. Greyhound and American Insurance also support this position in that the agent is not liable for economic loss resulting from acts performed within the scope of its agency.
Plaintiffs' assertion that Ranni's alleged breach of the agency contract between Ranni and Manhattan Life would constitute a tort is also rejected. They theorize that as beneficiaries under the policy they were owed some duty which, when breached, constituted a tort. This theory is rejected because the mere failure to perform a contract cannot serve as the basis of tort liability for negligence. See, e.g., Davidson v. Hess, 673 S.W.2d 111 (Mo.App. 1984); State ex rel. Cummins Missouri Diesel Sales Corp., v. Eversole, 332 S.W.2d 53 (Mo.App.1960).
To determine the character of an action, whether tort or contract, it is necessary to ascertain the source of the duty claimed to be violated. Davidson, 673 S.W. 2d at 112. Here the source of the duty is in contract. The failure to perform a contracted obligation in a timely manner would not be an independent tort in the absence of a contract. This case is not similar to Davidson, where the tenant was wrongfully evicted and the landlord's retention of the tenant's possessions amounts to an act of tortious conversion independent of the contract. Because the duty breached in this case stems from the contract, the breach does not amount to a tort.
Plaintiffs claim that they are owed some duty because they are third party beneficiaries is also rejected. Their theory is mistaken because it fails to recognize that two separate contracts are involved in this case. Plaintiffs obviously are the third party beneficiaries of the life insurance contract between Manhattan Life and Thrifty Drug. But plaintiffs are mere "incidental beneficiaries" of the agency contract between Ranni and Manhattan Life. Incidental beneficiaries are parties benefitting only collaterally from the contract and are not entitled to recover. Volume Services, Inc. v. C.F. Murphy & Assoc., 656 S.W.2d 785, 795 (Mo.App. 1983); Teter v. Morris, 650 S.W.2d 277 (Mo.App. 1982). In order to be designated a "third party beneficiary" who would be owed contractual duties, the contract terms must "clearly express" an intent to either benefit that party or an identifiable class of which *141 the party is a member. Volume Services, 656 S.W.2d at 795. Absent such express declarations, a strong presumption arises that parties contract for themselves and not for the benefit of others. Id.
The agency contract between Ranni and Manhattan Life appears as one for the convenience of those parties only. The contract may show an intent to benefit the client, Thrifty Drug, but plaintiffs have not shown that it clearly expresses an intent to benefit the plaintiffs as beneficiaries under the contract for life insurance. There was no showing that the parties to the contract, Ranni and Manhattan Life, intended plaintiffs to be able to enforce the contract. Thus, plaintiffs have not established that they were third party beneficiaries of the agency contract.
Because Ranni owed no duty to plaintiffs, plaintiffs fail to make a prima facie tort case. Thus jurisdiction cannot be founded on the commission of a tortious act.
Because plaintiffs have not met their burden of establishing a basis for the exercise of personal jurisdiction over Ranni, the preliminary writ is made absolute.
All concur.
NOTES
[1] Victor, et al., plaintiffs, v. Joseph Victor and The Manhattan Insurance Company and William Ranni Associates, Inc., defendants.
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732 N.W.2d 114 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Michelle Elizabeth LABELLE, Defendant-Appellee.
Docket No. 133126, COA No. 261749.
Supreme Court of Michigan.
June 8, 2007.
On order of the Court, the application for leave to appeal the December 12, 2006 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and we REMAND this case to the 53rd District Court for further proceedings not inconsistent with this order. The driver of the motor vehicle in which the defendant was a passenger violated MCL 257.652(1) by failing to come to a full stop before entering a highway from a private drive. Thus, there were objective and reasonable grounds to stop the vehicle. If a stop of a motor vehicle is objectively lawful, the subjective intent of the officer is irrelevant to the validity of the stop or a subsequent arrest or search and seizure of evidence. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). That is, a valid stop on the basis of a traffic violation will not be invalidated on the ground that the officer had an ulterior motive when he or she made the stop. Id.; People v. Davis, 250 Mich.App. 357, 363, 649 N.W.2d 94 (2002). Thus, even if the defendant had standing to raise a constitutional objection to the stop of the vehicle, there exists a valid ground to declare the stop lawful. The search of the interior of the vehicle was valid because the driver *115 consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Frohriep, 247 Mich.App. 692, 703, 637 N.W.2d 562 (2001). Alternatively, since the law enforcement officer who effectuated the stop had the authority to arrest the driver of the vehicle because the driver failed to produce a valid operator's license, the search was valid. The search incident to arrest exception to the warrant requirement "applies whenever there is probable cause to arrest, even if an arrest is not made at the time the search is actually conducted." People v. Solomon (Amended Opinion), 220 Mich.App. 527, 530, 560 N.W.2d 651 (1996). See also People v. Arterberry, 431 Mich. 381, 384-385, 429 N.W.2d 574 (1988); People v. Champion, 452 Mich. 92, 116, 549 N.W.2d 849 (1996). The search of the backpack was valid. Because the stop of the vehicle was legal, the defendant, a passenger, lacked standing to challenge the subsequent search of the vehicle. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); People v. Smith, 420 Mich. 1, 360 N.W.2d 841 (1984); People v. Armendarez, 188 Mich.App. 61, 468 N.W.2d 893 (1991). Authority to search the entire passenger compartment of the vehicle includes any unlocked containers located therein, including the backpack in this case. Moreover, the defendant did not assert a possessory or proprietary interest in the backpack before it was searched but, rather, left the backpack in a car she knew was about to be searched. See People v. Mamon, 435 Mich. 1, 6-7, 457 N.W.2d 623 (1990), quoting United States v. Thomas, 864 F.2d 843, 845-846 (C.A.D.C., 1989).
MICHAEL F. CAVANAGH, J., would deny leave to appeal.
MARILYN J. KELLY, J., dissents and states as follows:
I dissent from the Court's decision to resolve the jurisprudentially significant issues presented in this case in a peremptory fashion. This case deserves a full hearing to consider whether defendant, an automobile passenger, had standing to object to the traffic stop and, if so, whether the stop was valid.
The majority relies on Whren v. United States[1] and People v. Davis[2] for the proposition that a legal traffic stop will not be invalidated merely because the officer had an ulterior motive in making the stop. However, in those cases, the police stopped the respective defendants for violating traffic code provisions. Whren, 517 U.S. at 810, 116 S.Ct. 1769; Davis, 250 Mich.App. at 362, 649 N.W.2d 94. Therefore, regardless of the officers' motivations for making the stops, the courts found that they did not violate the Fourth Amendment of the United States Constitution. Whren, 517 U.S. at 812-813, 116 S.Ct. 1769; Davis, 250 Mich.App. at 362, 649 N.W.2d 94. These cases do not hold that the officer can justify the stop by asserting a previously unknown basis for the stop when the reason stated originally is declared invalid.
In this case, the officer detained a vehicle and ticketed the driver for failing to stop at a stop sign. It was later revealed that no stop sign existed. Therefore, unlike in Whren and Davis, here it appears that the arresting officer did not rely on objective and reasonable grounds to stop the vehicle.
The Court should grant leave to appeal to determine whether the traffic stop was valid. The other significant issue that has *116 been raised is whether defendant had standing to challenge the stop. Because of the significance of the issues involved, this case should not be disposed of in a peremptory fashion.
NOTES
[1] 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
[2] 250 Mich.App. 357, 649 N.W.2d 94 (2002).
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74 N.Y.2d 404 (1989)
In the Matter of Hedvig Zellweger, on Behalf of Robert Zellweger, Appellant,
v.
New York State Department of Social Services et al., Respondents.
Court of Appeals of the State of New York.
Argued October 11, 1989.
Decided October 26, 1989.
Norma E. Hogan for appellant.
Robert Abrams, Attorney-General (Clifford A. Royael, O. Peter Sherwood and Wayne L. Benjamin of counsel), for New York State Department of Social Services, respondent.
Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
*406Chief Judge WACHTLER.
Robert Zellweger, the appellant here, is 91 years of age and has suffered from Alzheimer's disease for the past 20 years. He has resided in a Lake Placid nursing home since 1979. His illness has rendered him incompetent, and he is represented in this appeal by his wife Hedvig, who is 86 years of age. His wife suffers from asthma and was hospitalized for extreme respiratory distress during much of the period that is at issue in this appeal.
The Zellwegers have spent more than $127,000 of their savings to meet Mr. Zellweger's expenses at the nursing home. As their life savings dwindled, Mrs. Zellweger became increasingly concerned about her ability to support herself and her husband. In December of 1983, at the urging of a hospital social worker, she applied for Medicaid benefits for her husband. At that time, less than $20,000 of the Zellweger's savings remained and their combined monthly income was approximately $800.
Mrs. Zellweger's application for medical assistance on her husband's behalf was granted on February 24, 1984, when she was informed by letter that her husband would be eligible to *407 receive benefits effective October 1, 1983. On March 31, 1984, however, her husband's benefits were discontinued because of "excess resources." The respondent Franklin County Department of Social Services (County) apparently concluded from a disclosure form submitted by Mrs. Zellweger in connection with her husband's Medicaid application that funds being held in trust for her husband, but not accessible to him, were in fact owned by him and were available for his support. On June 24, 1986, Mrs. Zellweger requested a fair hearing regarding the discontinuance of her husband's benefits in March of 1984 and subsequent denials of medical assistance by the County in March, June and November of 1985 and January of 1986.
The Commissioner of the Department of Social Services (Commissioner) determined that he was without subject matter jurisdiction to consider the merits of any of the denial notices at issue because Mrs. Zellweger had not requested a fair hearing within the 60-day limitation period (Social Services Law § 22 [4]; see, 18 NYCRR 358.5 [a]). She commenced an article 78 proceeding seeking a review of the Commissioner's determination. The trial court, "in light of the circumstances of this particular case, including the obvious incompetency of Robert [and] the advanced age and frailty of Hedvig," decided that the 60-day statutory period should be tolled, and remitted the matter to the Commissioner for further proceedings. The Appellate Division reversed, concluding that Mrs. Zellweger's "failure to timely request a hearing at each stage effectively deprived [the Commissioner] of jurisdiction to review her present claims" (148 AD2d 865, 868).
We disagree. To be sure, Mrs. Zellweger did not meet the County's 60-day deadline for requesting a hearing on her husband's behalf. But the indignation of the Social Services Department (Department) and the County over her failure to meet the 60-day deadline rings hollow in light of their own failure to comply with the law and regulations that govern the conduct of fair hearings. While holding a 91-year-old Alzheimer's patient and his 86-year-old wife to strict compliance with the statute, the respondents have in this case failed to follow the clear language of their own regulations.
It is uncontested that the County sent the March 1984 notice of discontinuance directly to Mr. Zellweger, who was completely unable to evaluate the information contained in it, and not to his wife, who had actually applied for the benefits *408 on his behalf. Social Services Law § 22 (12) requires that notice of any action "affecting [the] receipt of assistance or care" be sent in writing to both the recipient and the applicant (see also, 18 NYCRR 358.3). Mr. Zellweger's right to a fair hearing on the merits was most certainly prejudiced by the County's failure to send the notice of discontinuance directly to his wife. We conclude, therefore, that the County's failure to comply with the clear language of section 22 (12) of the Social Services Law effectively tolled the 60-day limitations period (see, Matter of Angelo v Toia, 61 AD2d 1121, 1122; Matter of Pratt v Blum, 111 Misc 2d 228, 229). As a result, Mr. Zellweger is entitled to a fair hearing regarding both the initial discontinuance of benefits and the subsequent notices of denial for the period in question, since the later applications for medical assistance were necessitated by the decision in March of 1984 to discontinue benefits previously awarded. As noted by the trial court, the November 1985 notice of denial was later rescinded and any review of that denial is therefore moot.
Additionally, it would appear that the Department did not comply with 18 NYCRR 358.18, which states that a fair hearing decision "shall be issued as promptly as feasible and within 90 days from the date the request for a fair hearing is received by the department" (see also, 42 CFR 431.244 [f]). Mrs. Zellweger first requested a fair hearing in connection with the notices of denial in June of 1986. A second hearing concerning a July 16, 1986 notice was requested on July 18, 1986. A fair hearing was conducted in two parts, on August 14, 1986 and September 26, 1986. Yet the Department did not issue its decision until March of 1987, nearly nine months from the initial fair hearing request.
Finally, we would note that the March 1984 notice of discontinuance was defective because it did not alert Mrs. Zellweger to the fact that she needed to request a fair hearing within 60 days. Social Services Law § 22 (12) requires that notice of agency actions affecting the receipt of medical assistance specify hearing rights and procedures. We conclude from the language of this section that any such notice should contain information relating to the time limit for hearing requests. Lower courts have determined that a failure to specify the 60-day period for requesting a hearing tolls the time limit and permits a determination on the merits (see, Matter of Melgar v D'Elia, 96 AD2d 1101, 1102; Matter of Piasecki v Blum, 78 AD2d 950).
*409Inasmuch as the record does not indicate a violation of 42 USC § 1983, we find the appellant's claim for attorneys' fees to be without merit.
Accordingly, the order of the Appellate Division should be reversed, with costs, and this matter remitted to the Commissioner of the Department of Social Services for further proceedings and a review on the merits of all determinations denying appellant medical assistance from March 21, 1984 through May 31, 1986.
Order reversed, with costs, and matter remitted to Supreme Court, Franklin County, with directions to remand to the Commissioner of the State Department of Social Services for further proceedings in accordance with the opinion herein.
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742 S.W.2d 1 (1987)
Richard Morales CASTILLO, Appellant,
v.
The STATE of Texas, Appellee.
No. 1022-84.
Court of Criminal Appeals of Texas, En Banc.
December 16, 1987.
Manuel J. Barraza, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., D.D. Sitgraves, Karen Shook, Asst. Dist. Attys., El Paso, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Judge.
Appellant was convicted of murder and punishment was assessed at forty years' confinement.
On original submission the Eastland Court of Appeals affirmed appellant's conviction in an unpublished opinion. Castillo v. State, No. 11-84-053-Cr (Tex.App. Eastland, delivered September 13, 1984). In one of his grounds of error in the Court of Appeals, appellant argued that the trial court erred in finding that appellant voluntarily waived his right to counsel during the taking of his statement. The Court of Appeals held that the evidence supported the trial court's finding.
In his petition for discretionary review, appellant asks us to review this holding. The record shows that a hearing on the motion to suppress the confession was held outside the presence of the jury. At the hearing Judge Walter McGhee, an El Paso justice of the peace, testified that the fifteen year old appellant was brought to his (the judge's) home at approximately 11:55 p.m. on August 19, 1980. In accordance with the V.T.C.A., Family Code, Section 51.09, Judge McGhee gave appellant his warnings. These warnings included appellant's right to have a lawyer present during questioning by police. McGhee testified that he felt appellant understood the warnings. Following these warnings, appellant was taken by Detective George Drennan to the local juvenile detention facility. There *2 appellant indicated that he wished to make a statement. Drennan testified that he again warned appellant of his rights, including his right to have an attorney present during questioning. Appellant told Drennan he understood his rights and then began giving his statement. Drennan testified that after appellant had finished giving his statement appellant, while looking through his wallet, pulled out an attorney's business card and laid it on the desk.
"Q. And then explain what happened when he showed you the card?
"A. I had asked him a question. I don't specifically recall what the exact question was, but he reached back into his wallet. He wasn't handcuffed. He was going through his wallet and he pulled out a card and put it down on the table there in front of the typewriter. He said, `This is my lawyer.' I asked him if he had a lawyer in the past and he said that he did.
"Q. Did he ask you for an attorney then?
"A. No, he did not.
"Q. Did he say what that lawyer was for? Explain what he said.
"A. I asked him if that was his lawyer and he stated it was. So I said, `So you have had a lawyer in the past?' or words to that effect, and he said yes. At that particular point I asked him if he had been in trouble before and he said yes. He said, `This is why I have this card. The lawyer gave it to me.' I asked him, again, if he had ever been in trouble, if he had ever been charged with another offense.
"Q. And what did he say?
"A. He said that he had been charged with a rape.
"Q. At that time did he say, `I want to see this lawyer at this point?'
"A. No, he did not.
"Q. Did you have any way of knowing what he meant by that? Did you believe him to be asking for a lawyer?
"A. No, I believe that he was not asking for a lawyer.
"Q. Because you asked him some questions about that, right?
"A. Yes. I asked him the question, but he never specifically ask (sic) me for an attorney.
"Q. So he handed you that card but he never asked you for a lawyer?
"A. He never did."
On cross-examination, Drennan testified that, although he filed a report which indicated that appellant had pulled out the attorney's business card immediately after Drennan had read him the warnings and before appellant began giving his statement, the report was inaccurate and the true sequence of events was as he testified on direct examination. Drennan further testified that in accordance with Section 51.09 of the Family Code appellant was again taken before Judge McGhee. Judge McGhee testified appellant was again brought before him at approximately 2:00 a.m. on August 20. Detective Drennan gave Judge McGhee appellant's unsigned statement. Once again Judge McGhee went over the juvenile warnings with appellant, including appellant's right to consult with an attorney. Judge McGhee then went over appellant's statement with him and made sure that appellant was voluntarily confessing. Judge McGhee testified that at the conclusion of his conversation with appellant he was convinced that appellant understood what he was doing and was acting voluntarily. Appellant then signed the statement. McGhee testified that at no time during this latter conversation did appellant indicate that he wished to speak with counsel.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court outlined the procedural safeguards that must be taken during custodial interrogation. Included in these safeguards was the requirement that the suspect be told of his right to the presence of an attorney, either retained or appointed. The Court went on to acknowledge that the suspect's right to remain silent and his *3 right to counsel could be waived but added a cautionary note:
"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...." 384 U.S. at 444-445, 86 S.Ct. at 1612.
Clearly under Miranda, an unequivocal request for counsel precludes subsequent police-initiated interrogation. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981); Bush v. State, 697 S.W.2d 397 (Tex.Cr.App.1985); Green v. State, 667 S.W.2d 528 (Tex.Cr.App.1984); Coleman v. State, 646 S.W.2d 937 (Tex.Cr. App.1983). However, the issue is not so clear-cut in situations like the instant case where there is no unequivocal request.[1]
In Curtis v. State, 640 S.W.2d 615 (Tex. Cr.App.1982), as Curtis was being led from his home by officers, someone who was not identified at trial stopped Curtis and asked him if he had a lawyer. Curtis replied that he did not have a lawyer, that he did not want one and that he thought his brother was getting one for him. Later in a conversation with the officer who ultimately took his confession, Curtis made an inquiry as to how he would be provided a court appointed attorney. Noting that Curtis told the officer he wanted to go ahead and give a statement, this Court held that neither the incident outside the appellant's home nor his inquiry as to court appointed counsel was "tantamount to invocation of right to have counsel present during custodial interrogation." Compare Ochoa v. State, 573 S.W.2d 796 (Tex.Cr.App.1978), where testimony from both the interrogating officer and Ochoa showed that prior to interrogation, Ochoa made the statement that he thought he should probably talk to an attorney before answering any questions or signing anything. The interrogating officer testified that, since he did not consider this to amount to a formal request for an attorney and since Ochoa did not insist upon talking to an attorney, he continued questioning him until he made a confession. On appeal, this Court held that although the defendant's statement did not amount to a formal request for counsel it was a sufficient indication that the defendant wanted to exercise his right to counsel.
In United States v. Jardina, 747 F.2d 945 (5th Cir.1984), the defendant never requested to see an attorney but stated that he already had an attorney in Texas. He then told the interrogating officers that he was interested in seeing what type of deal he could arrange between the government and his attorney. The Court of Appeals held that the mere mention of an attorney did not serve as an invocation of Jardina's right to counsel:
"... Jardina never asked that counsel be present at the ongoing questioning. Indeed, the words he spoke clearly indicated that he wished his attorney to work out a cooperative deal with the government in the future. Jardina stated *4 without the slightest ambiguity that he would then and there answer some questions but not others. The word `attorney' has no talismanic qualities. A defendant does not invoke his right to counsel any time the word falls from his lips. See Nash, supra [Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) cert denied, 444 U.S. 981, 100 S. Ct. 485, 62 L. Ed. 2d 409 (1979)], at 519; Thompson v. Wainwright, 601 F.2d 768, 772 (5th Cir.1979). Jardina's statements and actions did not invoke any present right to counsel." United States v. Jardina, 747 F.2d at 949. (emphasis added, material in brackets added).
In Gorel v. United States, 531 F. Supp. 368 (S.D.Tex.1981), Gorel a middle-aged business man was arrested at his home by F.B.I. agents. He was immediately given his Miranda warnings. At the hearing on his motion to suppress, Gorel testified that prior to leaving his house one of the F.B.I. agents told his (Gorel's) wife that her husband was going to need the services of an attorney. Gorel testified that he himself made no attempt to contact an attorney at that time. Gorel's wife testified that, although she could not remember who instructed her to call an attorney, she did attempt to contact an attorney while the agents were in her home. She further testified that her husband told her to continue to try to reach an attorney as he wanted an attorney that night. One of the F.B.I. agents testified that while they were questioning Gorel at his home, he was trying to contact an attorney. At trial, Gorel testified that the attempts to contact counsel were made because he realized, as a result of the agent's suggestion, that he would need legal representation to assist in his defense at some time in the future.
The district court found that the key to the issue was Gorel's intent at the time. Analyzing the facts the court held that the attempts to contact an attorney were initiated to obtain representation by counsel for Gorel at a time in the future and not during the questioning immediately following Gorel's arrest.
"... the court will not construe any mention of an attorney as an invocation of the right to counsel or as an equivocal request for counsel which forecloses interrogation.
"... Implicit ... is the possibility that an accused, who in some way indicates he may want representation, does not have in fact a present desire for counsel....
"While the court will indulge a presumption that any effort to contact an attorney is an invocation to the right of present representation by counsel, where conclusions drawn from the totality of the circumstances overwhelmingly rebut this presumption, the court will decline to find Miranda violated." Gorel v. United States, 531 F.Supp. at 371-372.
As shown above, not every mention of the word "attorney" constitutes an invocation of the right to counsel. The issue to be resolved then in the instant case is whether the appellant's action of pulling an attorney's business card out of his wallet was an invocation of his right to counsel. We make this determination by looking at the totality of the circumstances. Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). Miranda v. Arizona, supra; Holloway v. State, 691 S.W.2d 608 (Tex.Cr.App.1984); McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976). See also Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979) (holding that the totality of the circumstances analysis is applicable in cases involving waiver of rights by juveniles.) The totality approach mandates inquiry into all the circumstances surrounding the interrogation, including an evaluation of the juvenile's age, experience, education, background, intelligence and his capacity to understand the warnings given him, the nature of this Fifth Amendment rights and the consequences of waiving those rights. Fare v. Michael C., supra.
The record reflects that the fifteen year old appellant was warned of his rights some five times before he signed his confession. At no time did he make an unequivocal request for counsel. After pulling out the business card and showing it to the detective, appellant was taken back to *5 Judge McGhee who questioned him thoroughly about his desire to make a written confession. Judge McGhee testified that throughout the whole process appellant was calm and appeared to know what he was doing. Again, although clearly presented with the opportunity to request counsel, appellant made no such request. Viewing the totality of the circumstances, we hold that appellant's action of pulling an attorney's business card out of his wallet and showing it to the detective was not an invocation of his right to counsel. We overrule this ground for review.
The judgments of the Court of Appeals and the trial court are affirmed.
CLINTON and TEAGUE, JJ., dissent.
NOTES
[1] In Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984), the Supreme Court noted in dicta that courts have developed conflicting standards for determining the consequences of an ambiguous request for counsel. The Court wrote that one group of courts have defined a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. Thus not all references to counsel will constitute an invocation of the right to counsel. People v. Krueger, 82 Ill. 2d 305, 311, 45 Ill. Dec. 186, 189, 412 N.E.2d 537, 540 (1980), cert. denied, 451 U.S. 1019, 101 S. Ct. 3009, 69 L. Ed. 2d 390 (1981). A second group of courts have adopted an approach which holds that when an accused makes an equivocal statement that arguably can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to clarify the earlier statements and the accused's desires respecting counsel. Thompson v. Wainwright, 601 F.2d 768, 771-772 (5th Cir.1979); State v. Moulds, 105 Idaho 880, 888, 673 P.2d 1074, 1082 (App. 1983). Finally, some courts hold that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. People v. Superior Court, 15 Cal. 3d 729, 735-736, 125 Cal. Rptr. 798, 802-803, 542 P.2d 1390, 1394-1395 (1975), cert. denied, 429 U.S. 816, 97 S. Ct. 58, 50 L. Ed. 2d 76 (1976). The opinion included our case of Ochoa v. State, 573 S.W.2d 796, 800-801 (Tex.Cr.App.1978) in this last category. We do not construe Ochoa in that manner. Rather we find that Ochoa falls within the first category. And by this opinion we are enunciating our position that in Texas not every mention of the word "attorney" operates as a request for counsel. Massengale v. State, 710 S.W.2d 594 (Tex.Cr.App.1986).
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