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https://www.courtlistener.com/api/rest/v3/opinions/1335705/ | 210 S.E.2d 424 (1974)
286 N.C. 327
STATE of North Carolina
v.
James Bobby HARRINGTON.
No. 124.
Supreme Court of North Carolina.
December 30, 1974.
*427 Atty. Gen. James H. Carson, Jr., and Asst. Attys. Gen. James E. Magner, Jr. and Claude W. Harris, Raleigh, for the State.
Philip A. Baddour, Jr., Goldsboro, for defendant.
BOBBITT, Chief Justice.
The only question is whether there was evidence sufficient to require submission of guilty of involuntary manslaughter as a permissible verdict. The answer is provided by application of the well settled legal principles stated below.
"The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954); State v. Foster, 284 N.C. 259, 277, 200 S.E.2d 782, 795 (1973).
The jurors were instructed to return a verdict of not guilty if the State failed to satisfy them from the evidence and beyond a reasonable doubt that defendant intentionally shot Willie Mae Evans and thereby proximately caused her death. Nothing in the State's evidence afforded a basis for submitting involuntary manslaughter as a permissible verdict. Our inquiry is whether defendant's testimony provided a sufficient basis therefor.
Assuming, as defendant testified, the first bullet resulted from an accidental discharge of the rifle, defendant would be guilty of involuntary manslaughter only if there were evidence tending to show that such unintentional killing was caused by defendant's unjustified and wanton or reckless use of the rifle in such manner as to jeopardize Willie Mae's safety. State v. Griffin, 273 N.C. 333, 335, 159 S.E.2d 889, 890-891 (1968); State v. Moore, 275 N.C. 198, 212, 166 S.E.2d 652, 661-662 (1969); State v. Wrenn, 279 N.C. 676, 683, 185 S.E.2d 129, 133 (1971).
Defendant's testimony was to this effect: He started out the back door to engage in target practice. A person in his trailer-home called to him. He turned and went back to find out what the caller wanted. In doing so, he stumbled over a chair in his trailer-home. This caused the accidental discharge of the first (lethal) bullet. This testimony tends to negate culpable negligence in defendant's handling of the rifle.
Defendant cites Moore and Wrenn in support of his contention. Suffice to say, the facts in evidence in each of these cases are quite different from the evidential facts in the present case.
Defendant's testimony being insufficient to provide a basis for submission of involuntary manslaughter as a permissible verdict, the decision of the Court of Appeals is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335706/ | 210 S.E.2d 216 (1974)
24 N.C. App. 127
Virginia Doris Collier HOWELL
v.
John James HOWELL.
John J. HOWELL
v.
Virginia Doris Collier HOWELL.
No. 746DC655.
Court of Appeals of North Carolina.
December 4, 1974.
*217 Johnson, Johnson & Johnson, by Bruce C. Johnson, Conway, for appellant.
No counsel contra.
BRITT, Judge.
Appellant's main contention is that the trial judge should have submitted the issue of constructive abandonment and should have instructed the jury on this issue. We agree. The primary ground of appellant's original action and the counterclaim to her husband's action for an absolute divorce is constructive abandonment. Evidence presented at the trial tended to show: Prior to the separation, Mr. Howell on several occasions had beaten Mrs. Howell, and threatened to kill her; that on the night of 13 December 1972, he severely beat her with his fist and she left the next morning out of fear and remained separated from him; that as a result of said beating, her face and nose were swollen; that they have lived separate and apart since 14 December 1972.
It is well settled that a trial judge has the duty, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings. G.S. § 1A-1, Rule 49(b) [former G.S. § 1-200]; Wheeler v. Wheeler, 239 N.C. 646, 80 S.E.2d 755 (1954); Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876 (1955).
In Panhorst v. Panhorst, 277 N.C. 664, 670, 178 S.E.2d 387, 392 (1971), the court said:
"It is the duty of the court to charge the law applicable to the substantive features of the case arising on the evidence, without special request, and to apply the law to the various factual situations presented by the conflicting evidence." (Citation). Rule 51(a) of the Rules of Civil Procedure, formerly G.S. § 1-180, "requires the judge `to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.' (Citation)." (Citations omitted).
We hold that under the pleadings and evidence in this case, the trial court erred in not submitting an issue with respect to constructive abandonment and in failing to instruct the jury on that issue.
While the error that we have determined relates primarily to only one issue, we conclude that all of the issues are so interrelated that the ends of justice require a new trial of the whole case. It is so ordered. 1 Strong, N.C. Index 2d, Appeal and Error § 62, at 239 (1967); Paris v. Aggregates, Inc., 271 N.C. 471, 157 S.E.2d 131 (1967); Kinney v. Goley, 6 N.C.App. 182, 169 S.E.2d 525 (1969).
New trial.
HEDRICK and MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335709/ | 233 Ga. 289 (1974)
210 S.E.2d 817
WHITE
v.
WHITE.
29355.
Supreme Court of Georgia.
Submitted November 1, 1974.
Decided November 26, 1974.
M. W. Hendon, for appellant.
Rees Smith, for appellee.
NICHOLS, Presiding Justice.
This is the second appeal to reach this court involving attempts to modify a prior divorce decree between the parties. On the first appearance, White v. White, 231 Ga. 52 (199 SE2d 897), the judgment of the trial court changing visitation privileges and awarding attorney fees to the attorney for the former wife was appealed. The judgment changing visitation privileges was affirmed but the award of attorney fees was reversed. Other questions were passed on by the trial court but not *290 raised on appeal. Thereafter, the present complaint was filed by the former husband in which he sought a modification of the decree so as to eliminate any future payments of alimony and to reduce child support payments to figure more in keeping with his present income and financial condition.
The former wife filed written defenses as well as a counterclaim. The first defense alleged that Georgia law does not permit a Georgia court to modify alimony decree of a foreign court. The third defense alleged that the issues raised by this action had previously been decided by the superior court in the prior action between the parties adverse to the former husband's contentions and are res judicata. By way of counterclaim the former wife sought to have the husband held in contempt of court for failure to make the alimony payments required by the divorce decree.
1. The prior judgment between the parties (White v. White, 231 Ga. 52, supra), required the former husband to continue to pay alimony and child support as required by the New Jersey court order. The former wife's counterclaim in the present litigation seeks to have the former husband held in contempt of court, not for a failure to comply with the New Jersey order but for his failure to comply with the former DeKalb Superior Court judgment between the parties.
While properly a motion seeking to have a former husband held in contempt of court for failure to pay alimony in accordance with a court decree is filed in the same case and not as a separate complaint, nor as a counterclaim to a petition filed by the former husband seeking to have such alimony decree modified, yet, where as in the present case, the alimony decree sought to be enforced was rendered by the same court wherein the husband's petition to modify was filed, and there being no question of venue involved there is no harmful error to the former husband resulting from the court considering the counterclaim as a rule for contempt and not requiring a separate motion to be filed by wife.
2. The fact that the prior DeKalb County Superior Court judgment continued in effect the payments previously adjudicated by the New Jersey court and did *291 not modify the same would not preclude the former husband from being held in contempt of court for failure to comply with the DeKalb County judgment.
3. In Knox v. Knox, 225 Ga. 481 (1) (169 SE2d 805), it was held: "A substantial decrease in the husband's income or financial status since the date of the decree may warrant a decrease of alimony but does not demand it. Code Ann. § 30-221 (Ga. L. 1955, pp. 630, 631)." See also Potts v. Potts, 229 Ga. 827 (194 SE2d 471).
The trial court reduced the payments required of the former husband from $850 per month to $600 per month and the failure to further reduce such payments was not reversible error.
4. Any question as to the refusal of the trial court to rule upon the petition for modification until the former husband had purged himself of the contempt of court judgment is now moot.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2567104/ | 396 F. Supp. 2d 969 (2005)
Mark R. TESMER, Plaintiff,
v.
CHARTER FILMS, INC., Defendant.
No. 05-C-309-C.
United States District Court, W.D. Wisconsin.
November 2, 2005.
*970 John D. Finerty, Jr., Michael Best & Friedrich LLP, Milwaukee, WI, for Plaintiff.
Nicholas Ostapenko, Johnson, Killen & Seiler, P.A., Duluth, MN, for Defendant.
OPINION AND ORDER
CRABB, District Judge.
This is a civil action for monetary relief or specific performance of a contract. Plaintiff Mark Tesmer is suing defendant Charter Films, Inc. for breach of contract, alleging that defendant breached its obligation to value his stock according to the procedures outlined in section 5(b) of the parties' stock repurchase agreement. Jurisdiction is present under 28 U.S.C. § 1332(a)(1).[1] Before the court are plaintiff's motion for summary judgment and *971 defendant's renewed motion to dismiss plaintiff's motion pursuant to Fed.R.Civ.P. 56(f). Because I find that section 5(b) applies to the purchase of plaintiff's stock, I will grant his motion for summary judgment and order defendant to comply with the procedures outlined in the agreement. I will deny defendant's motion as unnecessary.
From the parties' proposed findings, I find the following facts to be material and undisputed.
UNDISPUTED FACTS
Plaintiff Mark Tesmer is an adult citizen of the state of Minnesota. Defendant Charter Films, Inc. is a privately held corporation, incorporated under the laws of the state of Wisconsin, with its principal place of business in Superior, Wisconsin. The value of the stock shares at issue in this case exceeds $75,000.
Defendant manufactures plastic film. From approximately December 23, 1998 until February 18, 2005, plaintiff was employed by defendant in Superior, Wisconsin and was responsible for overseeing the sales department, hiring sales staff and assisting them in serving customers and expanding sales of defendant's products. Plaintiff was not responsible for researching, developing, manufacturing or distributing defendant's products.
On December 29, 1998, plaintiff paid defendant $50,000 to purchase 50 shares of Class A voting common stock and 450 shares of Class B non-voting common stock of the company. At present, plaintiff owns 10% of the company. When plaintiff bought his stock shares, he executed a "Stock Repurchase Agreement."
On April 1, 1999, at defendant's request, the original stock repurchase agreement was replaced with a document entitled "Amended and Restated Stock Purchase Agreement" (hereinafter "the agreement"). This is the only contract that exists between the parties.
Section 5(b) of the agreement reads as follows:
5. Death of a Shareholder.
* * * * * *
(b) Death After Three Years from the Date of this Agreement. If a shareholder dies after the third anniversary of the date of this agreement, the personal representative of the estate of the deceased shareholder shall sell to the company, and the company shall purchase from such personal representative, the stock owned by the deceased shareholder's estate at a purchase price equal to the fair market value of such stock as of the end of the company's most recent fiscal year ending prior to the date of the shareholder's death. The purchase price shall be paid in cash at closing which shall occur within 60 days after the appointment of the personal representative of the estate of the deceased shareholder or such other time and place as the parties to the purchase and sale may agree. For purposes of this agreement, "fair market value" shall be determined pursuant to good faith negotiations between the parties to the purchase and sale.
At any time during this negotiation process, either party to the purchase and sale may give written notice to the other party indicating the purchase price per share that such a party is willing to apply to the purchase and sale ("the proposed purchase price per share"). Within 30 days of receiving such notice, the other party to the purchase and sale shall elect to either complete the purchase and sale using the proposed purchase price per share or require that an appraisal be conducted by an appraiser mutually agreeable to the purchaser and *972 seller, which appraiser shall determine the fair market value of the stock. If the purchaser and seller cannot agree upon an appraiser, they shall each name a third appraiser who shall perform the appraisal. The determination made by the appraiser shall be final and binding on all interested parties.
The appraiser shall determine the fair market value of the stock based on the cash or cash equivalent price at which a willing buyer would buy and a willing seller would sell the stock, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts; provided, however, that the appraiser shall not apply any discount from the fair market value due to lack of marketability or minority interest.
Stock Purchase Agreement, dkt. # 9, exh. A at 7-8.
Section 7 of the agreement provides:
7. Termination of Employment After Five Years and Not for Cause. If at any time after the fifth anniversary of the date of this agreement, a shareholder's employment with the company terminates for any reason, other than death or disability or termination by the company for cause, the terminated shareholder shall sell and the company shall purchase all of the terminated shareholder's stock. The purchase price for such stock shall equal the stock's fair market value as of the end of the company's most recent fiscal year ending prior to the termination of the employment. The purchase price shall be paid in cash at closing (which shall occur on a date set by the company which is within 30 days after the date of termination) or, if the purchase price is in excess of $50,000, the company may elect to pay the purchase price as follows: 10% in cash at closing and the balance over five years in equal annual installments of principal, plus interest, at 8% per annum on the outstanding balance until paid in full, with the first payment payable on the first anniversary of closing and the remaining four payments paid on each of the four anniversaries thereafter.
Id. at 9.
Section 8 of the agreement provides:
8. Disability. If any shareholder who is an employee of the company suffers a disability, within 90 days thereafter, the disabled shareholder or his or her personal representative shall sell to the company and the company shall purchase from such disabled shareholder or his or her personal representative, the disabled shareholder's stock at the purchase price and under the terms and conditions of section 5, substituting the date of the disability for the date of death.
Id. at 9-10.
On February 18, 2005, plaintiff resigned. He is not disabled. On March 3, 2005, plaintiff met with defendant's Executive Vice President Todd Johnson and Chief Operating Officer Chris Trapp to discuss the company's repurchase of plaintiff's stock shares. At the meeting, defendant presented plaintiff with three documents entitled "Fair Market Value Calculation," "Payout Structure," and "Charter Films Earning Summary." Defendant contended that the company's total value in outstanding stock shares was $17,674,228, based upon the company's "book value" plus accumulated depreciation. Defendant asserted that plaintiff's stock shares were worth $1,764,228. Plaintiff rejected this proposed repurchase price in a letter dated March 11, 2005.
On March 21, 2005, plaintiff met again with Johnson and Trapp to discuss defendant's repurchase of his stock shares. Defendant *973 maintained its position that the correct value of the stocks was $1,764,228. On April 1, 2005, plaintiff mailed a letter to defendants in which he proposed that his stock's fair market value was $6.2 million. Plaintiff based his proposed purchase price on a press release regarding a publicly reported 2005 transaction in which Appleton Paper purchased New England Extrusion for an amount equal to 1.36 times the value of New England Extrusion's sales. In the April 1 letter, plaintiff designated American Appraisal and Emory Business Valuations as possible appraisers. Defendant responded to plaintiff's correspondence in a letter dated April 4, 2005. In the letter, defendant revoked all outstanding offers and stated, "We intend no further effort to resolve your outstanding matter at this time."
On April 18, 2005, plaintiff's attorney, John Finerty, Jr., sent a letter to defendant's attorney, Vincent J. Beres. Finerty wrote:
It occurred to me after we hung up the phone that there is a 30-day time limit by which a party may designate an appraiser and elect to set the fair market value of the company by appraisal. Arguably, Todd Johnson's letter dated March 21, 2005, would trigger the 30 day time limit. I would kindly ask that you confirm that Charter waives the time limit for the purposes of negotiations for up to 30 days. If our clients reach an impasse, I would be happy to designate an appraiser that, hopefully, we could agree upon. If not, the contract contains a mechanism for resolving the question of how to value the company.
Letter from Finerty to Beres, Apr. 18, 2005, dkt. # 14, exh. C. On April 26, 2005, Finerty wrote again to Beres, this time designating John D. Emory, Sr. of Emory Business Valuations as the appraiser plaintiff chose to value the company.
On April 29, 2005, plaintiff met again with Johnson. During the meeting, Johnson admitted that he had conducted no market research to determine the company's fair market value. He reiterated the company's earlier offer of $1,764,228. Plaintiff asked to see the financial statements defendant had used to calculate its adjusted book value. Johnson refused to provide them, stating that the adjusted book value was "a straight forward calculation" representing a "60% premium over book value." In addition, Johnson told plaintiff, "At the end of 2004, Charter had $11 million in equity and your request for $5 million would represent 50% of the company. I couldn't pay that even if I wanted to."
Once again, on May 13, 2005, plaintiff sent defendant a letter requesting that defendant either accept his proposed purchase price per share or designate an appraiser. Defendant replied in a letter dated May 20, 2005, but did not accept plaintiff's proposed purchase price or designate an appraiser.
Plaintiff filed this lawsuit on May 27, 2005 and its motion for summary judgment on June 22, 2005. As of July 12, 2005, the parties had conducted no discovery.
OPINION
A. Defendant's Renewed Motion to Dismiss Plaintiff's Motion for Summary Judgment
Defendant asks the court to dismiss plaintiff's motion for summary judgment or, in the alternative, to order a continuance before deciding the motion to provide defendant with additional time to engage in discovery. Federal Rule of Civil Procedure 56(f) permits the court to refuse to enter summary judgment or provide a *974 continuance on a motion for summary judgment when "it appear[s] from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Defendant contends that it cannot properly respond to plaintiff's motion because material facts, primarily the fair market value of plaintiff's stock, require further investigation.
Defendant's motion fails for two reasons. First, defendant has not indicated that discovery, as opposed to diligent research, is likely to yield the information it seeks. The fair market value of its company's stock is a figure defendant is capable of discerning on its own without the assistance of discovery.
More important, to resolve plaintiff's motion for summary judgment, the court does not need to determine the fair market value of plaintiff's stock or examine any facts other than those the parties have proposed already. As Judge Crocker indicated in his order denying defendant's original motion to strike plaintiff's motion for summary judgment, plaintiff's motion "asserts that the parties' contract is unambiguous on all salient points... The issue whether the contract is ambiguous can be decided by the court without reference to additional documents or additional discovery by the parties." Order dated July 21, 2005, dkt. # 29, at 1. The parties agree that defendant is obligated to purchase plaintiff's stock at fair market value. They dispute the method for determining the fair market value and, consequently, the ultimate value of the stock. In his motion for summary judgment, plaintiff contends that the method for determining the fair market value is set forth in section 5(b) of the agreement. Additionally, he alleges that he has complied with those procedures. He asks the court to award him $6.2 million or, in the alternative, to order defendant to "comply with the terms of the agreement."
Plaintiff's motion reduces to a single question: Does the stock repurchase agreement set forth a binding method for resolving disagreements about the fair market value of the stock when the shareholder has voluntarily terminated his employment with the company? The question is one of contract interpretation that does not require extensive fact-finding to resolve. Therefore, I will deny defendant's motion as unnecessary.
B. Plaintiff's Motion for Summary Judgment
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); O'Neal v. City of Chicago, 392 F.3d 909, 910 (7th Cir.2004). In ruling on a motion for summary judgment, the court must resolve all factual disputes and draw all inferences in the light most favorable to the non-moving party. Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 480 (7th Cir.2002).
The parties agree that the stock repurchase agreement required defendant to repurchase plaintiff's stock at fair market value when he terminated his employment. They disagree about what, if anything, the agreement required them to do when the fair market value of the stock was disputed. According to plaintiff, defendant was required to follow the procedures outlined in section 5(b) of the agreement and either accept plaintiff's proposed purchase price or select an outside appraiser. Because it did not do so within 30 days, plaintiff argues, defendant must now pay him the repurchase price he proposed. Defendant contends that section 5(b) does not apply to situations, such as this one, where a shareholder has voluntarily terminated his employment.
*975 1. Applicability of section 5(b)
Under Wisconsin rules of contract interpretation, courts must give effect to each of an agreement's provisions. Kurt Van Engel Com'n Co., Inc. v. Zingale, 2005 WI App 82, ¶ 45, 280 Wis. 2d 777, 696 N.W.2d 280 (citing Koenings v. Joseph Schlitz Brewing Co., 126 Wis. 2d 349, 366, 377 N.W.2d 593, 602 (1985) ("agreement should be given a reasonable meaning so that no part of the contract is surplusage")). The stock repurchase agreement is divided into sections discussing the different conditions under which defendant will repurchase stock from a shareholder. Section 5 describes the repurchase process to be followed upon the death of a shareholder. Section 5(b) requires the company to pay fair market value of a shareholder's stocks to the shareholder's estate if the shareholder dies three or more years after the repurchase agreement has been signed. If either the company or the representative of the shareholder's estate contests the fair market value proposed by the opposing party, either party can interrupt negotiations by providing written notice of a proposed purchase price for the stock. Within 30 days of receiving the notice, the opposing party may either accept the proposed price or demand an appraisal conducted by an appraiser agreed upon by both parties. If an appraiser is selected, her assessment of the fair market value of the stock is binding.
The dispute resolution process outlined in section 5(b) is applicable also to stock repurchases that follow the disability of a shareholder. Section 8 requires the company to repurchase a disabled shareholder's stock "at the purchase price and under the terms and conditions of section 5, substituting the date of disability for the date of death." The procedure outlined in section 5 is not referred to explicitly in section 7, which governs repurchase of stock upon termination of a shareholder's employment. Section 7 imposes on defendant a duty to purchase stock from a former employee at "fair market value" but does not indicate how disputes regarding fair market value are to be resolved.
Plaintiff contends that the discussion of fair market value provided in section 5(b) applies unambiguously to the entire agreement. The last sentence of the first paragraph of section 5(b) states, "for purposes of this agreement, `fair market value' shall be determined pursuant to good faith negotiations between the parties to the purchase and sale." The parties agree that the clause "for purposes of this agreement," indicates that the sentence applies to the entire agreement.
Plaintiff argues that the provisions for dispute resolution found in paragraph 5(b) also apply to the entire agreement under the "last antecedent rule." His argument is grounded upon the following text from section 5(b):
... For purposes of this agreement, `fair market value' shall be determined pursuant to good faith negotiations between the parties to the purchase and sale.
At any time during this negotiation process, either party to the purchase and sale may give written notice to the other party indicating the purchase price per share that such a party is willing to apply to the purchase and sale ("the proposed purchase price per share")...
(Emphasis added) Under the last antecedent rule, relative and qualifying phrases are to be applied to the immediately preceding words or phrases. Peterson v. Sinclair Refining Co., 20 Wis. 2d 576, 588-89, 123 N.W.2d 479, 486 (1963). Therefore, the phrase "this negotiation process" refers to the "good faith negotiations" referred to in the preceding sentence. Because *976 the parties agree that "good faith negotiations" must be undertaken with respect to all stock repurchases referred to in the agreement, the methods for resolving that "negotiation process" outlined in the subsequent paragraph must apply to all stock repurchases, including those made under section 7.
Defendant contends that the contract is ambiguous at best. It argues that there would be no need for section 8 of the agreement to explicitly adopt the "terms and conditions of section 5" if section 5 applied unambiguously to all disputes. However, by adopting "the terms and conditions" of section 5, section 8 guarantees not only that the procedures for dispute resolution will be applicable, but guarantees also that the payout procedures of section 5 will apply to stock purchases made under section 8. Section 5 provides for a one-time cash payment to the shareholder's estate made within 60 days of the a shareholder's death. By incorporating the "terms and conditions" of section 5, section 8 guarantees a one-time cash payment to the representative of a disabled shareholder. On the other hand, section 7 does not adopt all of the terms and conditions of section 5. Instead, it provides for a one-time cash payment within 30 days for all stock purchases valued under $50,000 and an optional five year financing for purchases exceeding $50,000. Therefore, the explicit reference to section 5 found in section 8 serves a purpose beyond resolving disputes over the fair market value of stock.
Courts may not depart from the plain meaning of a contract when it is free of ambiguity. United Farm Agency, Inc. v. Klasen, 112 Wis. 2d 634, 641, 334 N.W.2d 110, 113 (1983); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692, 702-703 (Ct.App.1979). Although the drafters placed the terms for resolving disputes over fair market value in the section labeled "death of a shareholder," the terms of the agreement are not limited by headings. The language of the agreement indicates that the provisions of section 5(b) apply to disputes arising any time the parties fail to agree on the fair market value of the stock to be purchased. Therefore, I will grant plaintiff's motion for summary judgment as to the applicability of the provisions of section 5(b) to the purchase of his stock.
2. Remedy
Plaintiff contends that he complied with the terms of section 5(b) by sending defendant a letter on April 1, 2005, proposing that defendant either accept his proposed $6.2 million purchase price or select an appraiser. Defendant did not select an appraiser within 30 days, an omission that plaintiff contends was a de facto acceptance of plaintiff's proposed purchase price. Defendant contends that it provided the first "written notice" of a proposed purchase price when it presented plaintiff with its "fair market value calculation" on March 3, 2005. This argument does not assist defendant, however, because plaintiff responded by letter within 30 days, rejecting defendant's proposed price, proposing his own price and proposing an appraiser. The appraisal never occurred, presumably because the parties were engaged in sporadic attempts to resolve their dispute.
The parties' confusion over who gave notice first is understandable, given the language of section 5(b). On one hand, section 5(b) imposes upon the parties a duty to negotiate in good faith, a process which necessarily requires the parties to exchange proposed purchase prices. On the other hand, the dispute resolution procedures are triggered "at any time during the negotiation process" when one side *977 provides notice to the other side of a proposed purchase price. In his April 18, 2005 letter to defendant's attorney, plaintiff's attorney suggested that the 30-day time limit was triggered by plaintiff's March 21, 2005 letter. He asked, however, that the time limit be waived for 30 days. Now, plaintiff contends that its April 1, 2005 letter began the 30-day time limit for selecting an appraiser. Because the parties continued to negotiate until at least April 29, 2005, it is unclear whether the provisions of section 5(b) were properly invoked prior to that time. On May 13, 2005, plaintiff once again proposed his purchase price and asked defendant to either accept his proposal or designate an appraiser. On May 27, 2005, less than thirty days later, plaintiff filed this lawsuit.
Under the circumstances, it would be wholly unjust to award plaintiff the $6.2 million he requests. His figure is not the result of an appraisal or other expert opinion; it was derived from a press release about the value of an unrelated company. Furthermore, it is unclear when, if ever, defendants "defaulted" under section 5(b), since the parties engaged in sporadic negotiations until the end of April. However, plaintiff has asked for alternative relief in the form of specific performance. Specific performance is an equitable remedy that rests in the discretion of the court. Edlin v. Soderstrom, 83 Wis. 2d 58, 70, 264 N.W.2d 275 (1978). Although "ordinarily a party will not be compelled to specifically perform a contract for the sale of shares of corporate stock ... if the shares cannot be readily secured in the market specific performance is allowed." Kurth v. Hauser, 262 Wis. 325, 327, 55 N.W.2d 367, 368 (1952). If the granting of equitable relief can be framed in such a way as to avoid injustice to the defendant, specific performance should be decreed. Fontaine v. Brown County Motors Co., 251 Wis. 433, 439, 29 N.W.2d 744, 747-48 (1947). In this case, specific performance would be fair to both parties, as it would permit them to begin the process of resolving their dispute with a correct understanding of the operative provisions of section 5(b).
I note that, while asking the court to order defendant "to comply with the terms of the agreement" as set forth in section 5(b), plaintiff requests an order that conflicts with those terms. He asks the court to order (1) an appraisal conducted by an appraiser of his choice and (2) payment in full of the appraisal costs and stock purchase price within thirty days of this court's order. The procedure described in section 5(b) requires the parties to agree upon an appraiser. In addition, under the operative provisions of section 7, defendant has the option of paying the price in full at closing or paying 10% of the purchase price in cash at closing with the balance paid annually over five years at 8% interest. I will grant plaintiff's motion and order defendant to comply with the procedures set forth in section 5(b) and only with those procedures. Under those procedures, defendant has thirty days within which to select an appraiser or consent to plaintiff's proposed purchase price. Once an appraiser is selected, her determination of the fair market value of plaintiff's shares will be binding on the parties. Payment of the purchase price shall be made according to the provisions of section 7 of the agreement.
ORDER
IT IS ORDERED that:
1. Defendant Charter Films, Inc.'s motion to dismiss plaintiff's motion for summary judgment is DENIED;
2. Plaintiff's motion for summary judgment is GRANTED. Defendant is ordered to comply with the provisions of *978 section 5(b) of the parties' stock repurchase agreement
NOTES
[1] In an order dated October 18, 2005, I directed the parties to submit additional information regarding their diversity. In response, defendant asserts "on information and belief" that it believed plaintiff's home was for sale on the date the complaint was filed and that plaintiff might not have been a Minnesota citizen at the time this suit was initiated. Defendant produced no evidence supporting its contention. In a supplemental affidavit, plaintiff testified that at the time the complaint was filed, he was (and remains) a Minnesota resident. Therefore, this court has jurisdiction under 28 U.S.C. § 1332(a)(1). Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71, 124 S. Ct. 1920, 158 L. Ed. 2d 866 (2004)(all challenges to subject-matter jurisdiction premised upon diversity measured against state of facts at time of filing). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335843/ | 474 S.E.2d 152 (1996)
Claudette EVANS (now Hinnant), Employee-Plaintiff,
v.
YOUNG-HINKLE CORPORATION, Employer-Defendant, Self-Insured (Associated Risk Services Corporation, Administering Agent).
No. COA95-987.
Court of Appeals of North Carolina.
September 3, 1996.
*153 Walden & Walden by Daniel S. Walden, Winston-Salem, for plaintiff-appellant.
Hedrick, Eatman, Gardner & Kincheloe by Paige E. Williams, Raleigh, for defendant-appellee.
LEWIS, Judge.
Plaintiff Claudette Evans (now and hereinafter "Hinnant") appeals from an Opinion and Award of the North Carolina Industrial Commission (hereinafter "Commission").
While employed with defendant Young Hinkle Corporation plaintiff suffered a compensable injury arising out of and in the course of her employment. Defendant accepted the claim and agreed to pay temporary total disability from 7 February through 8 April 1990 pursuant to a Form 21 Agreement which was approved by the Commission on 28 August 1990. Defendant further agreed to pay plaintiff ten (10) weeks compensation for a twenty-five percent (25%) permanent partial loss to the second finger (long finger) pursuant to N.C. Gen.Stat. section 97-31(3) in a Form 26 Agreement approved by the Commission on 12 September 1990.
On 2 April 1992, plaintiff filed a Form 33 Request for Hearing seeking additional compensation for permanent partial loss to her hand pursuant to N.C. Gen.Stat. section 97-31(12). Defendant opposed this request and filed a motion requesting costs and attorney's fees. By letter dated 23 October 1992, plaintiff moved for an order prohibiting defense counsel's ex parte contact with plaintiff's treating physician. Deputy Commissioner William L. Haigh denied this request by order filed 2 November 1992.
On 15 January 1993, Deputy Commissioner Haigh filed an Opinion and Award denying plaintiff's claim for additional compensation for loss to the hand and awarding attorney's fees and costs against plaintiff's counsel. In addition, Deputy Commissioner Haigh set aside the Form 26 Agreement pursuant to N.C. Gen.Stat. section 97-17 upon a finding of mutual mistake. On 30 March 1993, plaintiff filed a Form 44 application for Full Commission review. The Full Commission adopted the Deputy Commissioner's decision on 28 April 1995. Plaintiff appeals.
On appeal, plaintiff contends the Commission erred by: (1) denying her 23 October 1992 motion to preclude defendant's ex parte contact with her treating physician; (2) setting aside the Form 26 Agreement; (3) denying her request for additional compensation; and (4) awarding attorney's fees and costs against her attorney.
We first consider plaintiff's assertion that the Commission erred by denying her motion to preclude defense counsel's ex parte contact with plaintiff's treating physician. In Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), our Supreme Court held, in a medical malpractice case, that defense counsel may not interview plaintiff's treating physician privately without the plaintiff's express consent. Id. at 336, 389 S.E.2d at 47. In Salaam v. N.C. Dept. of Transportation, 122 N.C.App. 83, 468 S.E.2d 536, disc. review *154 allowed, 343 N.C. 514, 472 S.E.2d 20 (1996), we applied Crist in the worker's compensation context and held that the Commission erred when it admitted a doctor's deposition testimony taken after defense counsel engaged in ex parte contact with the plaintiff's physician without the consent of plaintiff's counsel. Id. at 88, 468 S.E.2d at 539.
In Salaam, we further held that admission of testimony given after this type of ex parte contact occurred is reversible error in spite of any opportunities the plaintiff's attorney had to cure the resulting prejudice. Id. In accordance with Salaam, we therefore conclude that the Commission committed reversible error by denying plaintiff's motion for an order prohibiting the ex parte contact between the defense counsel and the plaintiff's treating physician. Pursuant to Salaam, as Dr. Naso's deposition testimony followed and was tainted by the improper contact, we remand this case to the Commission to strike this testimony, to reopen the case to receive further evidence, and to reconsider plaintiff's claim for additional compensation.
We now consider the allegation that the Commission erred in ordering that defendant's costs and attorney's fees be paid by plaintiff's counsel. Where a hearing is brought, prosecuted or defended without reasonable ground, N.C. Gen.Stat. section 97-88.1 provides the Commission with the authority to assess the whole cost of the proceedings, including attorney's fees, upon the party who has brought or defended the proceeding. It states that the Commission may assess such costs (including attorney's fees) "upon a party. ..." N.C. Gen.Stat. § 97-88.1 (1991)(emphasis added). The statutory language does not expressly provide the Commission with the authority to assess these costs and fees against a party's counsel.
In Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992), our Supreme Court found that the language of N.C. Gen.Stat. section 6-21.5 refers in every instance to the party with no hint of including the attorney. Id. at 665-666, 412 S.E.2d at 338-339 (emphasis added). In Bryson, the Court held that "`because statutes awarding an attorney's fee to the prevailing party are in derogation of the common law, N.C. Gen.Stat. § 6-21.5 must be strictly construed' " and therefore the statute does not authorize the Court to require counsel to pay attorney's fees to the prevailing party. Id. (quoting Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 257, 400 S.E.2d 435, 437 (1991)). We conclude that the same considerations stated in Bryson are applicable to G.S. section 97-88.1, the statutory provision at issue here.
Furthermore, G.S. section 97-88.1 reads in pertinent part: "If the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for defendant's attorney or plaintiff's attorney upon the party who has brought or defended them." G.S. § 97-88.1 (1991). In Sparks v. Mountain Breeze Restaurant, 55 N.C.App. 663, 286 S.E.2d 575 (1982), we established a test to determine whether attorney's fees should be awarded in a hearing brought before the Industrial Commission. In Sparks, we stated: "The test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness." Id. at 665, 286 S.E.2d at 576. In Robinson v. J.P. Stevens & Co., 57 N.C.App. 619, 292 S.E.2d 144 (1982), we stated that this Court has the right to review whether the evidence shows a reasonable ground to defend. Id. at 627, 292 S.E.2d at 149. In her claim, plaintiff asserts that she is entitled to compensation under G.S. section 97-31(12) for disability to her hand in addition to compensation she has already received for disability to her second (long) finger under G.S. Section 97-31(3). Considering the evidence presented, we find that the claim is not based on unfounded litigiousness and therefore conclude that the awarding of attorney's fees is unwarranted.
Given the disposition of this case, we do not address plaintiff's other assignments of *155 error. We reverse the Opinion and Award filed 28 April 1995 and remand this case to the Commission with directions to strike the deposition testimony of Dr. Stephen J. Naso, Jr., reverse the award of attorney's fees and costs against plaintiff's attorney, reopen the case to receive further evidence and reconsider plaintiff's request for additional compensation.
Reversed and remanded.
EAGLES and McGEE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335846/ | 474 S.E.2d 141 (1996)
George ALLEN, Jr., Plaintiff,
v.
Clyde Heath EFIRD, III, and Leah Karon Efird, Defendants.
No. COA95-807.
Court of Appeals of North Carolina.
September 3, 1996.
*142 Alexander Dawson, P.A. by Alexander Dawson, Graham, and Hemric & Lambeth, P.A. by H. Clay Hemric, Jr., Burlington, for plaintiff-appellant.
Frazier, Frazier & Mahler, L.L.P. by Torin L. Fury, Greensboro, for defendants-appellees.
EAGLES, Judge.
The sole issue before us is whether the trial court erred in instructing the jury on the doctrine of sudden emergency. At trial, plaintiff argued that defendant Clyde Efird was negligent per se based on his being left of the center line when the accident occurred. Defendant sought an instruction on the doctrine of sudden emergency asserting that he was not negligent in being on the wrong side of the road because he acted reasonably when faced with the sudden emergency of unexpectedly hydroplaning. The trial court agreed and accordingly instructed the jury on the doctrine of sudden emergency.
Plaintiff argues that the trial court's instruction was erroneous because any emergency encountered by defendant was created in part by defendant's own failure to properly control his vehicle. We agree.
Two conditions must be met before the doctrine of sudden emergency may be applied: (1) "an emergency situation must exist requiring immediate action to avoid injury...," and (2) "the emergency must not have been created by the negligence of the *143 party seeking the protection of the doctrine." Conner v. Continental Industrial Chemicals, Inc., 123 N.C.App. 70, 73, 472 S.E.2d 176, 179 (1996). In the instant case, defendant unexpectedly hydroplaned as he approached a curve opposite an oncoming school bus. The investigating officer testified and defendant agreed that the road remained wet at the time of the accident, although the actual rainfall had recently subsided. The investigating officer identified no defects in the roadway.
"As a general rule, every motorist driving upon the highways of this [S]tate is bound to a minimal duty of care to keep a reasonable and proper lookout in the direction of travel and see what he ought to see." Keith v. Polier, 109 N.C.App. 94, 99, 425 S.E.2d 723, 726 (1993). In other words, a person may lose control of his vehicle responding to a sudden emergency, but a defendant may not assert the sudden emergency doctrine as a defense where the sudden emergency was caused, at least in part, by defendant's negligence in failing to maintain the proper lookout or speed in light of the roadway conditions at the time. E.g., Masciulli v. Tucker, 82 N.C.App. 200, 206, 346 S.E.2d 305, 309 (1986); White v. Greer, 55 N.C.App. 450, 454, 285 S.E.2d 848, 851-52 (1982). Based on this standard, we conclude that the evidence here is insufficient to support an instruction on the sudden emergency doctrine.
A reasonable driver understands that traction is greatly reduced on wet roads and that the wetness of the roadway introduces a certain variable element into the driving equation. Standing alone, evidence that a driver was able to proceed without incident for some time under adverse conditions does not warrant a sudden emergency instruction just because there is evidence that the driver later unexpectedly lost control due to those same adverse conditions. See, e.g., Holbrook v. Henley, 118 N.C.App. 151, 154-56, 454 S.E.2d 676, 678-79 (1995). A sudden emergency instruction is improper absent evidence of a sudden and unforeseeable change in conditions to which the driver must respond to avoid injury. E.g., Colvin v. Badgett, 120 N.C.App. 810, 812, 463 S.E.2d 778, 780 (1995), aff'd, 343 N.C. 300, 469 S.E.2d 553 (1996); Polier, 109 N.C.App. at 99, 425 S.E.2d at 726-27.
Here, defendant had been proceeding on wet roads for some time prior to the accident, and defendant makes no assertion that there was any unexpected change in condition for the worse immediately prior to his loss of control. Defendant presents no evidence of a "sudden downpour or sudden change of driving conditions ...," Masciulli, 82 N.C.App. at 207, 346 S.E.2d at 309, or of "any road condition or highway exigency..." arising that he could not have avoided through the exercise of due care. Weston v. Daniels, 114 N.C.App. 418, 422, 442 S.E.2d 69, 72, disc. review denied 336 N.C. 785, 447 S.E.2d 433 (1994). The mere fact that defendant lost control under static conditions does not merit a sudden emergency instruction. See, e.g., Holbrook, 118 N.C.App. at 154-55, 454 S.E.2d at 678-79. Accordingly, we conclude that the trial court erred in instructing the jury on the sudden emergency doctrine and we reverse the judgment of the trial court and remand the cause for a new trial.
New trial.
WYNN and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335847/ | 474 S.E.2d 9 (1996)
222 Ga. App. 288
BRINKWORTH
v.
The STATE.
No. A96A0165.
Court of Appeals of Georgia.
June 18, 1996.
Reconsideration Denied July 12, 1996.
Certiorari Denied November 22, 1996.
*10 John K. Dunlap, Atlanta, for appellant.
Ralph T. Bowden, Jr., Solicitor, Lisa A. Jones, Walter C. Howard, Assistant Solicitors, for appellee.
McMURRAY, Presiding Judge.
Defendant Brinkworth appeals his conviction of the offense of simple battery. Held:
1. The State's evidence as to venue was that the crime occurred at "Dugan's Restaurant on Memorial Drive," and when asked whether that establishment was located in DeKalb County, the victim answered: "I guess it would be." Since there is no conflicting evidence, this slight proof of venue is sufficient to authorize a jury to conclude that this element of the State's case was proven beyond a reasonable doubt. Casey v. State, 133 Ga.App. 161(1), 162, 210 S.E.2d 375. Since the State's evidence shows that defendant struck the victim's chin with his hand in an unprovoked attack, the jury was authorized to conclude that defendant was guilty beyond a reasonable doubt of simple battery. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560.
2. The trial court refused to instruct the jury using defendant's requested charge that "physical contact is required to prove a simple battery." Instead, the trial court used a charge requested by the State which used the language of OCGA § 16-5-23(a), "A person commits the offense of simple battery when he either: (1) [i]ntentionally makes physical contact of an insulting or provoking nature...; or (2) [i]ntentionally causes physical harm to another."
During their deliberations the jury returned to the courtroom with a question for the trial court. "May we have clarification of simple battery? Does this, in this charge, necessarily include bodily contact? Could it be just verbal in this charge?" In response, the trial court repeated its earlier charge on simple battery including the quoted language taken from OCGA § 16-5-23(a). After the jury resumed deliberations, defendant requested that his earlier refused charge be given to the jury since it spoke directly to the issue raised by the jury's question. This request was denied, and shortly thereafter court was recessed for the night and the jury sent home.
The following morning defendant renewed his request that the jury be given his refused charge that "physical contact is required to prove a simple battery." Although the trial court initially agreed to do so, after argument from the prosecuting attorney and establishing on the record that the jury had no further questions following the earlier recharge, defendant's motion was denied.
Defendant now enumerates as error the refusal to give his refused instruction in the recharge of the jury, arguing only the duty of the trial court to charge fully on the elements of the crime which was the subject of the recharge. There is no contention that the charge used by the trial court was incorrect, or that there was any detrimental reliance on the trial court's expression of intent to give the refused charge. The most that can be drawn from defendant's argument is a contention *11 that the instruction used by the trial court was incomplete. But we reject this argument since the instruction used by the trial court clearly identifies "physical contact" as an element of the crime of simple battery. The trial court was not obligated to instruct the jury in the exact language requested; it was sufficient that the same principle of law was fairly covered in the instructions actually given the jury. Meeks v. State, 216 Ga.App. 630, 631(3), 632, 455 S.E.2d 350.
Judgment affirmed.
BIRDSONG, P.J., and ANDREWS, JOHNSON, BLACKBURN and SMITH, JJ., concur.
BEASLEY, C.J., and SMITH, J., concur specially.
POPE, P.J., and RUFFIN, J., dissent.
BEASLEY, Chief Judge, concurring specially.
I concur in Division 1 and also in Division 2, with respect to which it is important to consider the jury charge in the context of the accusation, which contained two counts. One charged a violation of OCGA § 16-5-23.1, battery. The other charged that Brinkworth "committed the offense of SIMPLE BATTERY by intentionally making contact of an insulting and provoking nature with [the victim] by HITTING HIM in violation of OCGA § 16-5-23." Thus the words of the statute were used in both the accusation and the jury charge, and defendant was not entitled to a jury instruction employing other words introducing the idea that the statutory words meant other than what they clearly conveyed.
I am authorized to state that Judge Smith joins in this special concurrence.
RUFFIN, Judge, dissenting.
As stated in Division 1 of the majority opinion, the only evidence "proving" venue in DeKalb County was the victim's testimony that she "guessed" the crime occurred there. Although Casey v. State, 133 Ga.App. 161(1), 210 S.E.2d 375 (1974), relied on by the majority, provides authority for its decision, I believe Casey was wrongly decided and should be overruled. Accordingly, I respectfully dissent.
The United States Supreme Court has observed that venue is a matter that touches "closely the fair administration of criminal justice and public confidence in it" and commanded that we not treat it as "merely [a matter] of formal legal procedure." United States v. Johnson, 323 U.S. 273, 276, 65 S. Ct. 249, 250-51, 89 L. Ed. 236 (1944). It is from this perspective that I question not only the sufficiency of venue evidence in this case, but also the State's "burden" for proving venue generally.
While the majority correctly states the general rule that where venue is not contested slight proof will suffice, it is equally true that venue is an essential element in proving guilt, and like every other material allegation, must be proved beyond a reasonable doubt. Thayer v. State, 189 Ga.App. 321, 322(1), 376 S.E.2d 199 (1988); Carter v. State, 146 Ga.App. 681, 247 S.E.2d 191 (1978). Because all material allegations must be proven by competent, affirmative evidence, evidence showing only "[a] bare suspicion... is not sufficient." Diggs v. State, 90 Ga.App. 853, 857(1), 84 S.E.2d 611 (1954); Sokolic v. State, 228 Ga. 788, 790-791, 187 S.E.2d 822 (1972). Testimony constituting mere surmise or conjecture most certainly lies within this latter category. See Marshall v. State, 154 Ga.App. 327, 328(2), 268 S.E.2d 383 (1980).
In Dickerson v. State, 186 Ga. 557, 199 S.E. 142 (1938), our Supreme Court conducted an exhaustive review of earlier cases in which venue was and was not proven by the evidence presented. Although the Court decided that the record before it contained sufficient evidence of venue, it noted that the defendant's argument as to venue was based on "mere conjecture, unsupported by evidence or any reasonable inference deducible therefrom." Id. at 563, 199 S.E. 142. If a defendant is not permitted to attack venue with mere conjecture, the State should not be permitted to meet its burden with such testimony.
In this case, the only "evidence" of venue was conjectural. There was no competent *12 evidence showing affirmatively that Brinkworth committed the offense in DeKalb County. At best, the victim's indefinite testimony showed "only that it was possible the crime was committed within the jurisdiction of the court [which] is insufficient to establish venue. [Cits.]" (Emphasis in original.) Royster v. State, 108 Ga.App. 269, 270(1), 132 S.E.2d 830 (1963).
Similarly, in Casey, relied on by the majority, the only evidence of venue was a witness's "guess" that Cartersville was located in Bartow County. Id. at 162, 210 S.E.2d 375. The court in Casey cited three cases purportedly supporting its conclusion that venue could be established by mere guesswork. See Wells v. State, 210 Ga. 422(2), 80 S.E.2d 153 (1954); Campbell v. State, 202 Ga. 705(2), 44 S.E.2d 903 (1947); and Downs v. State, 175 Ga. 439(1), 165 S.E. 112 (1932). However, those cases state only the general rule regarding slight evidence, and more importantly, none of the cases relied on mere conjecture to prove venue. Based on the above authority, I believe Casey should be overruled.
I am also compelled to note my reservations with the rule requiring only slight evidence of venue. That rule requires, in effect, that if the defendant does not produce any evidence of venue, then the State may meet its burden with only slight evidence. I believe that such a rule erroneously places a burden on the defendant to produce evidence as to an essential element of the crime. It is well settled that a defendant never has such a burden, and that the State always has the burden of proving each element of the crime beyond a reasonable doubt. Sokolic, supra.
Furthermore, a rule requiring only slight evidence diminishes the State's burden without reason. As with other material allegations, the State is required to produce competent evidence of venue. See Thayer, supra; Weeks v. State, 220 Ga.App. 141, 143(2), 469 S.E.2d 316 (1996). It is then for the factfinder to decide whether he or she is persuaded beyond a reasonable doubt that the State has proven venue. See id. The factfinder weighs the evidence and determines its credibility. Id. Whether the factfinder is persuaded by only slight evidence or some greater amount of proof should not be a matter of rules; it is a matter of presenting evidence and decision-making, functions which peculiarly belong to the prosecutor and the factfinder, respectively. The rule allowing venue to be proven by only slight evidence is at best superfluous, and only clouds the law concerning the State's burden of persuasion, while in some cases allowing the State to escape its burden of proving venue by competent evidence, beyond a reasonable doubt. There is no virtue in a jurisprudence of hypocrisy. If truth is to take a leave of absence, such leave should not be judicially impelled nor judicially compelled.
"Where venue is not established by the State, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. [Cit.]" (Punctuation omitted.) Thayer, supra at 322, 376 S.E.2d 199. See also Parks v. State, 212 Ga. 433, 435(3), 93 S.E.2d 663 (1956). Because the only evidence of venue in this case constituted mere conjecture, I believe the conviction should be reversed. Accordingly, I dissent.
I am authorized to state that Presiding Judge POPE joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266293/ | 5 Cal.Rptr.3d 497 (2003)
112 Cal.App.4th 856
In re Leonard James McSHERRY, on Habeas Corpus.
No. B169107.
Court of Appeal, Second District, Division Seven.
October 20, 2003.
Rehearing Denied November 20, 2003.
Review Denied February 4, 2004.
*498 Mark E. Overland, Santa Monica, for Petitioner.
Steve Cooley, District Attorney, Brenda D. Riggs and Jessica Goulden, Deputy District Attorneys, for Plaintiff and Respondent.
MUÑOZ (AURELIO), J.[*]
Penal Code section 1272[1] provides that a criminal defendant who has been convicted of a misdemeanor, but not yet sentenced, has an absolute right to bail. We issued a writ of habeas corpus to consider the question of whether a trial court may impose reasonable bail conditions on the granting of that bail. We hold that it may, but that the conditions have to be reasonable and related to public safety.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2003, petitioner, Leonard James McSherry, was charged with violating five counts of Penal Code section 653g (loitering about schools). At the initial bail hearing the prosecutor informed the court that *499 petitioner had been convicted in 1974 of abducting an eight-year-old girl and placing her into his car, where he proceeded to masturbate in front of her. In 1979 he was sentenced to state prison after he grabbed a 15-year-old girl from a school, told her he was a police officer, drove to another location, masturbated in front of her and then digitally penetrated her. In 1986 he was convicted of five separate counts of violating section 653g and served two and one-half years in the county jail.[2] In 1989 he was convicted of rape and subsequently released when DNA tests proved he was not the perpetrator. Released from custody in 1991, he had been observed around schools where children were playing. Based upon those representations, the trial court set bail at $50,000 per count.
After a jury trial petitioner was convicted on three of the five counts. The jury found him not guilty as to a fourth count and was unable to arrive at a verdict as to the fifth. After petitioner was sentenced to 18 months in county jail, he requested bail on appeal. The trial court elected to continue the $250,000 bail, the same amount as it had been prior to trial, with no other conditions. On July 14 and 15, 2003, the trial court held a hearing and issued a nunc pro tunc order imposing conditions on petitioner's bail pending appeal. The court stated it was doing so out of concern for public safety.
The specific conditions were (1) petitioner was not to drive any motor vehicle; (2) petitioner was to stay at least 500 yards away from children under the age of 17; and (3) petitioner was to stay at least 500 yards away from any school, park, playground, daycare center or swimming pool in which children were present.
On July 24, 2003, petitioner was once again arrested and a new case was filed against him alleging five separate violations of section 166, subdivision (a)(4) (willful violation of court order in that he did not stay away from parks and schools). Based upon the alleged violations, the court exonerated petitioner's $250,000 bail and reset bail in the amount of $1 million.
This petition for writ of habeas corpus followed.
DISCUSSION
A. The Standard for Review
Habeas corpus is an appropriate vehicle by which to raise questions concerning the legality of bail grants or deprivations. (In re Catalano (1981) 29 Cal.3d 1, 8, 171 Cal.Rptr. 667, 623 P.2d 228; In re Newbern (1961) 55 Cal.2d 500, 503, 11 Cal.Rptr. 547, 360 P.2d 43.) In evaluating petitioner's contentions, this court may grant relief without an evidentiary hearing if the return admits allegations in the petition that, if true, justify relief. (In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 2, 275 Cal.Rptr. 384, 800 P.2d 862; In re Sixto (1989) 48 Cal.3d 1247, 1252, 259 Cal. Rptr. 491, 774 P.2d 164; In re Saunders (1970) 2 Cal.3d 1033, 1047-1048, 88 Cal. Rptr. 633, 472 P.2d 921; see, e.g., People v. Frierson (1979) 25 Cal.3d 142, 158 Cal. Rptr. 281, 599 P.2d 587; In re Haygood (1975) 14 Cal.3d 802, 805, 122 Cal.Rptr. 760, 537 P.2d 880.) On the other hand, we may deny the petition, without an evidentiary hearing, if we are persuaded the contentions in the petition are without merit. (See, e.g., People v. Karis (1988) 46 Cal.3d 612, 653-657, 250 Cal.Rptr. 659, 758 P.2d 1189; People v. Babbitt (1988) 45 *500 Cal.3d 660, 248 Cal.Rptr. 69, 755 P.2d 253; People v. Romero (1994) 8 Cal.4th 728, 739, 35 Cal.Rptr.2d 270, 883 P.2d 388.)
B. The Trial Court Had the Authority to Impose Bail Conditions
Section 1272 provides in relevant part, "After conviction of an offense not punishable with death, a defendant who has made application for probation or who has appealed may be admitted to bail: [¶] ... [¶] 2. As a matter of right, before judgment is pronounced pending application for probation in cases of misdemeanors, or when the appeal is from a judgment imposing imprisonment in cases of misdemeanors." Thus, petitioner, who had received jail sentences for his convictions, was absolutely entitled to bail. (In re Newbern, supra, 55 Cal.2d at p. 503, 11 Cal.Rptr. 547, 360 P.2d 43.) Furthermore, in setting bail the court had to take into account the factors set forth in section 1275. (Newbern, at p. 504, 11 Cal.Rptr. 547, 360 P.2d 43.)
Newbern was a case where the defendant was repeatedly arrested for public intoxication. (§ 647, subd. (f).) His intoxication was such a problem that he once made a court appearance while under the influence of alcohol. After he had been convicted and sentenced on two separate counts, the court set bail on appeal in the sum of $500 as to each count and bail at $100 was set on a new charge of public drunkenness. Newbern filed a petition for habeas corpus contending the bail was too high. The Supreme Court stated, "The absolute right to bail extends to the pendency of an appeal after judgment imposing imprisonment in cases of misdemeanor." (Pen.Code, § 1272, subd. 2.) Thus, Newbern had the constitutional and statutory right to be released on a reasonable bail as to all charges with which we are here concerned. The only permissible purpose of such bail, whether before or after conviction, is `practical assurance that defendant will attend upon the court when his presence is required.'" (In re Newbern, supra, 55 Cal.2d at pp. 503-504, 11 Cal.Rptr. 547, 360 P.2d 43.) However, the court then went on to state that considering Newbern's habitual drunkenness, his prior disruption of court proceedings due to his intoxication, the fact he was appearing representing himself as opposed to being represented by "sober counsel," and the fact he was facing a year in jail justified the court's imposing of the bail. (Id., at p. 504.)
In 1961, when Newbern was decided, section 1275 provided the judge setting bail was "to take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his appearance...." That section was amended by the Legislature in 1987 to its present form which now reads, "(a) In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration." (Italics added.) Thus, public safety, not the certainty of appearance, is now the primary factor for the court to consider in the setting of bail.
Petitioner's reliance on People v. Barbarick (1985) 168 Cal.App.3d 731, 736, 214 Cal.Rptr. 322 and its statements that public safety is not to be considered in imposing bail conditions is misplaced. Barbarick was decided in 1985, two years before the amendment to section 1275. Furthermore, in In re York (1995) 9 Cal.4th 1133, 40 Cal.Rptr.2d 308, 892 P.2d 804, the California Supreme Court was considering a similar contention as it related to judges imposing "search conditions" on defendants *501 who were being released on their own recognizance (O.R.). The language of enabling statute (§ 1318) was ambiguous at best as to whether this was proper. Nonetheless, the Supreme Court stated, "Viewed and analyzed in the light of basic rules relating to the interpretation of statutes, we find that, although nothing in the legislative history specifically addresses the question whether the Legislature intended to permit OR releases to be conditioned upon a waiver of Fourth Amendment rights, it is clear the Legislature intended to codify the authority of a court or magistrate, in imposing OR conditions, to weigh considerations relating to the public safety that extend beyond those intended to ensure subsequent court appearances." (In re York, supra, at p. 1144, 40 Cal.Rptr.2d 308, 892 P.2d 804.)
If the bail statutes are read as argued by petitioner, then the change in section 1275 is rendered superfluous for people convicted of misdemeanors. Additionally, petitioner ignores section 1270 which provides that a person charged with a misdemeanor is entitled to an O.R. release unless the court finds release of the defendant is likely to compromise public safety. If the court denies an O.R. release "the court shall then set bail and specify the conditions, if any, whereunder the defendant shall be released." (Ibid.) In making these determinations, "[p]ublic safety shall be the primary consideration." To accept petitioner's contentions would mean that a court has the power to impose bail conditions on a person who has merely been charged with a crime and before the nature of his involvement has been determined, but once the defendant has been found guilty and found to be deserving of the maximum sentence, then the court must release the defendant as a matter of right and is powerless to impose any conditions on his or her bail.
Such an interpretation is nonsensical. Petitioner's arguments also lead to the conclusion that even though a court can set bail conditions for an unconvicted misdemeanant, it could not do so for a person charged with a violent or serious felony because "conditions" are not mentioned in section 1270.1. Likewise, if a defendant has been convicted of a felony, under petitioner's view, even though the right is bail is discretionary, the court is powerless to impose bail conditions even though the defendant's conviction may present a significant legal issue which could lead to a reversal and even though sections 1272 and 1272.1 require the judge to state on the record the reasons for or against granting bail. This cannot be what the legislature intended.
In determining the legislative intent, we "should ascertain the intent of the Legislature so as to effectuate the purpose of the law." (Select Base Materials v. Board of Equal, (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) We must also give the provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. (United Business Com. v. City of San Diego (1979) 91 Cal.App.3d 156, 170, 154 Cal.Rptr. 263.) Significance, if possible, should be attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose, as "the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole." (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) "`The court should take into account matters such as context, the object in view, the evils to be remedied, *502 the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.'" (Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733, 114 Cal.Rptr. 460, 523 P.2d 260; Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 55, 88 Cal. Rptr.2d 891.)
Here, we have a constitutional provision that mandates, with certain exceptions, that persons involved in the criminal process have the right to have reasonable bail set. (Cal. Const., art. I, § 12.) We also have a statute that states a sentence misdemeanant has an absolute right to be released on bail while an appeal is pending. (§ 1272.) Within the bail statutory framework is the Legislature's overriding theme; the safety of the public is of paramount importance. (See §§ 1269c, 1270, 1270.1, 1272.1, and 1275.) At the time of the amendments to the sections just cited, and since, the Legislature of this state has been concerned with public safety and the need to protect that public. Just as in York, the legislative history is ambivalent on the issue.
Given the circumstances of the legislation and the overall plan, it would defeat the Legislature's purpose to hold that a person who has been to prison once for kidnapping and abusing a child, has been sent to a state mental hospital for mentally disordered sex offenders and has been convicted of at least eight separate misdemeanors involving loitering in and around schools and places where children congregate, was absolutely entitled to remain free on bail without any restrictions or conditions being placed upon his movements. Accordingly we hold that under section 1272, a trial court has the right to place restrictions on the right to bail of a convicted misdemeanant as long as those conditions relate to the safety of the public.[3]
C. The Bail Conditions Must Be Reasonable
Petitioner next argues the bail conditions were unreasonable. In support of the argument that the 500-yard[4] restriction is unreasonable, he has provided the court with a map of the area where he lives and a 500-yard overlay that indicates as soon as petitioner stepped out of his front door he was immediately in violation of his bail conditions. We are of the opinion that a 500-yard restriction is too great. A 200-yard[5] restriction will suffice and still serve to protect the public. Accordingly, the 500-yard restriction should be modified to 200 yards. Petitioner also contends the restriction on his driving privilege is also unreasonable. However, considering that he has used his car to abduct children in the past, the restriction is reasonable.
DISPOSITION
The 500-yard bail conditions are modified to 200 yards. In all other respects the petition is denied.
We concur: PERLUSS, P.J., and WOODS, J.
NOTES
[*] Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Unless otherwise indicated, all further references shall be to the Penal Code.
[2] That conviction had been the subject of another writ of habeas corpus. (McSherry v. Block (9th Cir.1989) 880 F.2d 1049.)
[3] Petitioner argues that imposing conditions on bail is more akin to probation than it is to bail. While that may be the case, nonetheless the convicted misdemeanant has been sentenced and is merely waiting for a decision on an appeal. Under those circumstances it does not seem unreasonable to impose conditions that are for the protection of the public.
[4] For the uninitiated, that is almost a third of a mile
[5] This was the distance the court first indicated it was considering, but the prosecutor argued for and convinced the court 500 yards was reasonable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263490/ | 24 Cal.App.4th 1684 (1994)
30 Cal. Rptr.2d 210
LINDA LORENZEN-HUGHES, Plaintiff and Appellant,
v.
MacELHENNY, LEVY & CO., Defendant and Respondent.
Docket No. B069936.
Court of Appeals of California, Second District, Division Six.
May 17, 1994.
*1685 COUNSEL
Diane M. Matsinger and Kristofer Kallman for Plaintiff and Appellant.
Borton, Petrini & Conron and Barton C. Merrill for Defendant and Respondent.
OPINION
GILBERT, J.
Here we hold that the transferor of an interest in real property is not liable for latent defects in the property which the transferor did not know about, and had no reason to believe existed.
*1686 Plaintiff Linda Lorenzen-Hughes appeals from the summary judgment granted defendant-respondent, MacElhenny, Levy & Co. We affirm.
FACTS
On April 19, 1990, Lorenzen-Hughes suffered injuries at work when a cabinet fell from the wall near her desk. The cabinet had been installed in 1979 by a contractor who did a minor remodeling project for the previous tenant, MacElhenny. MacElhenny transferred its assets and lease to Lorenzen-Hughes's current employer on January 16, 1981. Since that date MacElhenny has not had any possessory interest or control over the premises.
Lorenzen-Hughes filed an unverified complaint against MacElhenny and the contractor for negligence and premises liability, alleging that the cabinet "suddenly and unexpectedly came loose...."[1]
MacElhenny moved for summary judgment. Citing Preston v. Goldman (1986) 42 Cal.3d 108 [227 Cal. Rptr. 817, 720 P.2d 476], it asserted that it could not be held liable because it relinquished possession and control of the premises over nine years before this accident occurred.
Lorenzen-Hughes opposed the motion by contending that the Preston case is inapplicable because it concerned injuries resulting from a patent defect created by a "do-it-yourself" homeowner. Here the defect was latent, not patent.
The trial court found the facts to be undisputed because Lorenzen-Hughes filed no statement refuting MacElhenny's statement of undisputed facts. It granted summary judgment pursuant to the Preston case, stating that the Preston court made no distinction between patent and latent defects of property. This appeal ensued.
DISCUSSION
"Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no triable issue of fact and that the moving party is entitled to a judgment as a matter of law. [Citations.] The court must strictly construe the affidavits of the moving party and liberally construe those of his opponent. [Citation.]" (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 [211 Cal. Rptr. 356, 695 P.2d 653, A.L.R.4th 1747].) "Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. *1687 [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal. Rptr. 122, 762 P.2d 46].)
(1a) Lorenzen-Hughes argues that the trial court improvidently granted summary judgment because there are triable issues of material fact regarding whether MacElhenny may be held liable for latent defects in the construction or mounting of the cabinet, under Preston v. Goldman, supra, 42 Cal.3d 108.
In the Preston case, defendants built a pond in their backyard. After they sold the property, a small child visting tenants of the new owner fell into the pool and became severely injured. A jury rendered verdicts in favor of defendants after being instructed that a seller of property is not subject to liability for injuries caused by a dangerous condition on the land, subject to certain exceptions. (42 Cal.3d at p. 111.)
The Court of Appeal reversed, holding that a vendor of land who negligently creates an unreasonably dangerous condition on his land is liable because he created the condition, even though he no longer owns the land. (42 Cal.3d at p. 112.)
Our Supreme Court reversed the Court of Appeal and framed the issue by asking a question similar to the one before us today: "Should former owners, allegedly negligent in constructing an improvement on their property, be subject to liability for injuries sustained on that property long after they have relinquished all ownership and control?" (42 Cal.3d at p. 110.)
The Preston court surveyed the disparate approaches courts have taken on this issue over the years, and summed up those approaches as follows: 1. the buyer must beware (caveat emptor) because a predecessor owner is not liable after transfer; 2. caveat emptor applies except where the vendor of land knows or should have known of hidden defects which present an unreasonable risk of harm that the vendee would not discover; and 3. liability should depend upon the likelihood of harm instead of on the condition of title to the land. (42 Cal.3d at p. 115.)
Almost all states follow the first approach, caveat emptor. "[T]he general rule of nonliability has been applied to conditions on the land created by the predecessor landowner, with the landowner's role as `creator' taking a secondary place." (Preston v. Goldman, supra, 42 Cal.3d at p. 117, fn. omitted.) An exception to this rule exists "where the prior landowner is the contractor or builder of the entire property. Generally, different rules have applied in this context to professional developer/owners. [Citations.]" (Id. at p. 117, fn. 3, italics added.) This exception does not apply to the instant case. The moving and responsive papers establish that MacElhenny did not develop the entire subject property; it had a cabinet installed in a minor remodeling job.
*1688 Our high court emphasized that "we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land," instead of whether one's negligence was active or passive. (42 Cal.3d at p. 119, citing Sprecher v. Adamson Companies (1981) 30 Cal.3d 358 [178 Cal. Rptr. 783, 636 P.2d 1121].)
The Supreme Court in Preston quoted the following language in Copfer v. Golden (1955) 135 Cal. App.2d 623 [288 P.2d 90], "`"`The wrongdoer has not at the time [of the injury] any control over the subject-matter, or any power or right to remedy the evil. The damage in all such cases arises in fact from the continued use of the defective subject, and with that the builder, who has parted with the title, possession, and control of it, has not and cannot have anything to do.'"' [Citations.] Thus, the `active or passive' role of the former owners vis-a-vis creation of the injury-causing condition was irrelevant to the question of liability. [Citation.]" (Preston v. Goldman, supra, 42 Cal.3d at p. 114, italics omitted.)
The Preston court held that "`[a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. [Citations.]'" (42 Cal.3d at p. 119.) According to the Preston court, "ownership and control [is] a fundamental requirement for ascribing liability." (Ibid., italics added.) Preston therefore views possession and control as an indispensable requirement on which to predicate liability. The exception are those cases which involve true commercial developers, or which meet all the requirements of the Restatement Second of Torts section 353. (42 Cal.3d at pp. 122-123.)
Here, it is undisputed that MacElhenny had no possession or control at the time of the accident. This fact negates an essential element of Lorenzen-Hughes's cause of action, thus shifting the burden of proof to her. (Code Civ. Proc., § 437c, subd. (n)(2).) Because she has not borne that burden of proof, the trial court properly granted MacElhenny summary judgment in this case.
Preston does not exclude latent defects from its holding. Nevertheless, Lorenzen-Hughes argues that there remain triable issues of material fact as to latent defects in accord with the rules stated in Restatement Second of Torts section 353. We disagree. Section 353 states:
"(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if
*1689 "(a) the vendee does not know or have reason to know of the condition or the risk involved, and
"(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.
"(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions." (Italics added.)
(2) The requirements of Restatement Second of Torts section 353 are conjunctively stated. Before a vendor of land may be held liable for a latent defect under section 353, all of its elements must exist: 1. that the vendor concealed or failed to disclose a condition which it knows about or has reason to know about; 2. which involves an unreasonable risk that the vendor understands or should realize; 3. which is unknown to the vendee or of which the vendee has no reason to know; and 4. which the vendor has reason to believe the vendee will not discover. Unless the vendor actively conceals the condition, the vendor may be held liable only until the vendee has had sufficient time to discover the condition and to take precautions.
(1b) It is true, as Lorenzen-Hughes admits, "no one could have known that [the cabinet had not been properly attached to the wall], until the cabinet fell." (Italics added.) Of course she is referring to herself and the tenants who occupied the premises after MacElhenny. That is also, however, one reason that MacElhenny is not liable here.
Lorenzen-Hughes's complaint, motion papers and brief fail to establish that MacElhenny deliberately concealed, or failed to disclose, the condition of this cabinet. The factors giving rise to vendor's liability in section 353 are absent here.
The judgment is affirmed. Costs to MacElhenny.
Stone (S.J.), P.J., and Yegan, J., concurred.
A petition for a rehearing was denied June 14, 1994.
NOTES
[1] The contractor, Alex Seaman, is not a party to this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263521/ | 24 Cal.App.4th 425 (1994)
29 Cal. Rptr.2d 413
REGAN ROOFING COMPANY, INC., et al., Petitioners,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; PACIFIC SCENE et al., Real Parties in Interest.
Docket No. D020098.
Court of Appeals of California, Fourth District, Division One.
April 25, 1994.
*428 COUNSEL
McInnis, Fitzgerald, Rees & Sharkey, Timothy S. Thomas, Jeff G. Harmeyer, Stutz, Gallagher, Artiano, Shinoff & Holtz, Daniel R. Shinoff, Robert R. Templeton, Jr., and Richard C. Thomas for Petitioners.
No appearance for Respondent.
Lorber, Volk, Greenfield & Blick, Bruce W. Lorber, M. Bart Beddoe, Jeffrey A. Garofalo, Epsten & Grinnell and Duane E. Shinnick for Real Parties in Interest.
OPINION
HUFFMAN, J.
Petitioner Regan Roofing Company, Inc. (Regan Roofing), joined by New Continental Tile and Marble Company, Inc. (New *429 Continental), brings this petition for writ of mandate to challenge the order of the trial court summarily adjudicating certain issues in this cross-action for contractual indemnity and related theories brought by Pacific Scene et al. (collectively, Pacific Scene), the developer of the Pacific Ridge condominium project, which is claimed to suffer construction defects. (Code Civ. Proc., § 437c, subd. (f).)[1] Regan Roofing and New Continental, among others, were subcontractors in various trades who worked on the construction of the project, pursuant to subcontracts which each contained an indemnity provision in favor of Pacific Scene. In its ruling, the trial court summarily adjudicated the issue that the indemnity provision contained in the exemplar subcontract agreement was a "specific" or "type I" indemnity agreement, which would cover the general contractor's, Pacific Scene's, own negligence in the construction of the project. (See MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal. App.3d 413, 419-421 [105 Cal. Rptr. 725].) The trial court also ruled that the subcontractor cross-defendants had a current duty to defend Pacific Scene regardless of any determination of their duty to indemnify it under the subcontracts.
Regan Roofing[2] makes both procedural and substantive arguments that this ruling was improper. It first claims this ruling was not a proper subject of summary adjudication under section 437c, subdivision (f), because it does not completely dispose of any cause of action or defense of the cross-complaint, nor is it a proper adjudication of an issue of duty owed by cross-defendants to the cross-complainants, as allowed by the statute. In its substantive attack on the ruling, Regan claims the trial court improperly equated contractual indemnitors, such as these subcontractors, with insurance companies, thus improperly expanding the duty to defend; Regan Roofing also claims the trial court incorrectly construed this indemnity clause as providing specific indemnity. We decline to reach these substantive arguments, as this petition for writ of mandate is properly disposed of on the procedural grounds asserted. We explain.
FACTUAL AND PROCEDURAL BACKGROUND
As pled in the petition, Pacific Ridge Condominium Association (the Association) brought suit against Pacific Scene for breach of implied warranties, strict liability, and negligence arising out of construction defects at the project. Pacific Scene filed a cross-complaint for express indemnity, breach of contract, implied indemnity, equitable indemnity, contribution, and declaratory relief against a number of subcontractors who worked at the project, each of which had agreed to a contractual indemnity clause as part *430 of its subcontract. Pacific Scene then brought a motion for summary adjudication under section 437c, subdivision (f), specifying the following two issues for resolution:
"1. ISSUE: WHETHER THE INDEMNITY PROVISION INCLUDED WITHIN THE CONSTRUCTION SUBCONTRACT AGREEMENT ENTERED INTO BETWEEN [PACIFIC SCENE] AND SUBCONTRACTOR/CROSS-DEFENDANTS IS A `TYPE I' OR A `SPECIFIC' INDEMNITY AGREEMENT OF WHICH PACIFIC SCENE IS A BENEFICIARY.
"2. ISSUE: WHETHER CONTRACTOR/CROSS-DEFENDANTS OWE PACIFIC SCENE THE DUTY OF DEFENSE, PURSUANT TO THE CONSTRUCTION SUBCONTRACT ENTERED INTO, BY AND BETWEEN, [PACIFIC SCENE], AND SUBCONTRACTORS/CROSS-DEFENDANTS." (Original italics.)
In support of its motion, Pacific Scene submitted an exemplar construction subcontract, containing an indemnity clause as follows:
"Q. Indemnity Subcontractor shall at all times indemnify and hold Contractor harmless as follows:
"(i) Subcontractor shall indemnify and hold harmless Contractor against all liability for claims or liens for labor performed, or materials used or furnished to be used on the job by or through Subcontractor;
"(ii) Subcontractor shall indemnify and hold harmless Contractor against any other liability, cost or expense of any nature or kind arising out of or in any way connected with Subcontractor's performance of this Subcontract, save and except only such liability, cost or expense caused by Contractor's sole negligence or sole willful misconduct.
"Pursuant to each of the foregoing, Subcontractor shall indemnify and hold harmless Contractor from any costs and expenses for attorney's fees and all incidental and consequential damages resulting to Contractor from such claims or liens. In the event any suit on any claim is brought against Contractor, subject to the provision, Subcontractor shall defend said suit at Subcontractor's own cost and expense and will pay and satisfy any such lien or judgment as may be established by the decision of the Court in such suit. ..." (Italics added.)
Pacific Scene also supplied the court with an exemplar tender of defense letter to one of the subcontractors, requesting it to defend and indemnify Pacific Scene for any loss resulting from the Association's lawsuit. Pacific Scene represented that to date the subcontractors had all rejected this demand for defense and indemnification.
*431 There were 24 subcontractors/cross-defendants named in the motion; the exhibits to the petition show that 12 of those filed opposition. These were A-Built Raingutters; Kenwall Fireplaces; Sunwood Co.; Aero-Crete, Inc.; Jim Best Construction; Ty's Plumbing Co.; Alcala Co.; American Best Distributors, Inc.; New Continental; S.C. Insulation; Regan Roofing and Pacific Structural Concrete. The opposition generally argued that the motion did not dispose of any complete cause of action or defense and, further, that triable issues of material fact existed as to the stated issues. Mike Regan, a principal of Regan Roofing, submitted a declaration asserting that during contract negotiations, the indemnity provision had not been brought to his attention, nor did he understand it or have an opportunity to negotiate its terms. Another subcontractor, S.C. Insulation, asserted that the exemplar subcontract did not apply to it, as it had never signed it, nor had it received the exemplar tender letter.
Pacific Scene filed reply papers asking the court to rule that the exemplar indemnity provision was type I, allowing Pacific Scene indemnity and defense from the subcontractors as a matter of law, covering its own negligence if any.
At oral argument, the court expressed its opinion that the contract of indemnity was the functional equivalent of a contract of insurance, that the duty to defend was independent of any eventual determination of the duty to indemnify, and that the indemnitors might have to pay defense costs whether or not they were ultimately found liable for their own negligence. The court then issued its ruling, summarized by Pacific Scene in its notice of ruling as follows:
"Motion for Summary Adjudication by defendants, Pacific Scene et al. granted in part and denied in part.
"As a matter of law, the indemnity provision, Subsection Q, contained in the exemplar contract attached as Exhibit 1 is a specific or `Type I' indemnity provision as it expressly refers to the negligence of the contractor. See the case of C.I. Engineers & Constructors v. Johnson & Turner Painting (1983) 140 CA3d 1011, 1014 [189 Cal. Rptr. 824].
"However, since defendants have not provided credible evidence that this exact contract was executed by each and every one of the named subcontractors, the Court is not adjudicating the duties, rights and/or liability as it pertains to each individual subcontractor.
"Further, the Court finds that the motion is premature as to the duty to indemnify as Pacific Scene would not be entitled to recover under any *432 indemnity provisions until becoming liable and/or suffering an actual loss by being compelled to pay a claim. See Civil Code Section 2778(1) and (2). There is no evidence that Pacific Scene has suffered a compensable loss.
"The Court does find that there is a duty to defend under Civil Code Section 2778. Section 2778(3) provides that an indemnity against claims, demands or liability embraces the cost of defense. Pursuant to Civil Code Section 2778(4), the indemnitors [the subcontractors] are bound, on request of the indemnitee [Pacific Scene], to defend actions brought against the indemnitee in respect to matters embraced by the indemnity clause. The Court finds that the exemplar subcontract allegedly entered into between each of the named subcontractors and [Pacific Scene] contains an indemnity clause at Paragraph Q which embraces the costs of defense.... Further, this action, which includes a claim for damages arising from work performed by the subcontractors pursuant to the subcontract, is embraced by that indemnity clause....
"Finally, adjudication of the issue regarding primary carriers is denied as improper under CCP 437c(f). Further, there is no argument or evidence presented to support adjudication of this issue."[3]
This writ petition followed and we issued an order to show cause and an order staying the trial date.
DISCUSSION
Regan Roofing has raised a number of interesting substantive questions concerning the scope of a duty to defend arising from a contractual indemnification clause, as opposed to a contract of insurance, and has additionally argued that the trial court incorrectly construed the subject indemnity provision as providing specific indemnification. (1a) The dispositive issue presented by the petition, however, concerns the proper interpretation of the summary adjudication statute, section 437c, subdivision (f), as to the type of issue of duty which may be summarily adjudicated. We shall discuss the substantive issues raised only within the context of deciding whether they were, as the trial court ruled, proper subjects of summary adjudication at all.
(2) Section 437c, subdivision (f)(1), as amended in 1990 and 1993, provides in full as follows: "(f)(1) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that *433 there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Italics added.)
In City of Emeryville v. Superior Court (1991) 2 Cal. App.4th 21, 25 [2 Cal. Rptr.2d 826], the court interpreted section 437c, subdivision (f) in light of its legislative history:
"Section 1 of Statutes 1990, chapter 1561, explained the intent behind the change in subdivision (f): `It is also the intent of this legislation to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense.'
"This statement and the wording of subdivision (f) show clearly that the Legislature wished to narrow summary adjudication from its broad focus on `issues' (sometimes interpreted to mean only asserted `facts') to a more limited focus on causes of action, affirmative defenses, claims for punitive damages, and claims that defendants did not owe plaintiffs a duty." (City of Emeryville v. Superior Court, supra, 2 Cal. App.4th at p. 25.)[4]
In Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App.4th 1848, 1853-1854 [16 Cal. Rptr.2d 458], the court interpreted section 437c, subdivision (f) as creating a means to eliminate those summary adjudication motions that would not reduce the costs and length of litigation. Such an interpretation is in accord with the general policy behind motions for summary judgment or adjudication, i.e., to "`promote and protect the administration of justice, and to expedite litigation by the elimination of needless trials.' [Citations.]" (Lilienthal & Fowler v. Superior Court, supra, 12 Cal. App.4th at p. 1854.) The court thus held that "the time and cost saving purposes of the amendment" (ibid.) did not authorize a ruling which would allow a cause of action in its entirety to proceed to trial where a separately alleged obligation or claim within that cause of action could be summarily defeated by summary adjudication. (1b) In light of this authority, we should analyze the trial court's ruling on the summary adjudication motion *434 with a view to whether it promotes the evident legislative purpose of section 437c, subdivision (f), to prevent adjudication of issues which fail to dispose completely of a particular cause of action or defense, even where "an issue of duty" is involved. (§ 437c, subd. (f).)
(3) The Legislature did not define what it meant by "an issue of duty" in section 437c, subdivision (f). Where a tort duty is involved, as in a negligence cause of action, a finding that a defendant does not owe a duty to the plaintiff may effectively terminate an action or a portion thereof and is thus clearly an example of a proper subject of summary adjudication.[5]
In actions arising out of contract, such as this action for contractual indemnity, the concept of duty is more far-reaching. Williston on Contracts (4th ed. 1990) section 1:1, pages 2-3, explains that the Restatement Second of Contracts defines the term "contract" "as a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." (Ibid., fn. omitted.) The term "contract" refers to "those promises which the law recognizes as creating a duty of performance." (Id. at p. 4.) In defining the contractual concept of "promise," the treatise writers explain that although that term was once defined as an undertaking that something shall or shall not happen in the future, the term "promise" is used in the treatise "to include not only the physical manifestations of assurance by words or conduct, but also the moral duty to make good the assurance by performance. If, by reason of other operative facts, the promise is recognized as creating a legal duty, or if its breach will give rise to a right of redress, then the promise is a contract." (Id., § 1:2, p. 9, fns. omitted.) It will thus be seen that the concept of duty in contract law may refer both to an overall contractual obligation or to a requirement of performance under an agreement. (See 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 775, p. 701 [If impossibility of performance exists at the time an agreement is made, "no duty, i.e., no binding contract, arises. [Citations.]" (Italics omitted.)].) The concept of duty thus enters into the first three of the standard elements of a cause of action for breach of contract: (1) the contract, (2) plaintiff's performance or excuse for *435 nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom. (4 Witkin, Cal. Procedure, op. cit. supra, Pleading, § 464, p. 504.)
(4) In the context of insurance contract law, it is well established that a duty to defend is contractual in nature (Isaacson v. California Ins. Guarantee Assn. (1988) 44 Cal.3d 775, 791 [244 Cal. Rptr. 655, 750 P.2d 297]) and determination of such a duty is a matter of law appropriate for summary adjudication. (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 298-301 [24 Cal. Rptr.2d 467, 861 P.2d 1153]; California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal. App.3d 1, 38 [221 Cal. Rptr. 171].) Interpretation of an insurance policy is a question of law for the court. (Ibid.) Where such a summary adjudication of the duty to defend is made in a declaratory relief action, the entire action may be effectively terminated and summary adjudication thus achieves the policy goals of section 437c, subdivision (f). (Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at pp. 298-299; State Farm Fire & Casualty Co. v. Eddy (1990) 218 Cal. App.3d 958, 964-966 [267 Cal. Rptr. 379].) For example, commentators have suggested an example in the insurance context where summary adjudication of a defendant's duty to plaintiffs might be appropriate: "For example, Insurer sues for declaratory relief that it owes no duty to defend or to indemnify its Insured for certain wrongful acts. These duties are not identical (the duty to defend is broader than the duty to indemnify). Thus, the court could grant summary adjudication that Insurer has no duty to indemnify; and at the same time determine there is a triable issue as to duty to defend." (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1993) ¶ 10:44.2, p. 10-15, original italics.)
(1c) With this theoretical background in mind, we first discuss whether the trial court properly summarily adjudicated that there was a duty to defend in this contractual indemnity context, where a broad scope of relief (more than just declaratory relief) is sought. We then address the portion of the ruling defining the type of indemnity provision from which any alleged duties arose (i.e., specific indemnity). As to both topics, we reiterate that although Pacific Scene's cross-complaint evidently seeks declaratory relief, it also seeks damages and other relief regarding the contractual indemnity provision and related theories.[6] In its ruling, the trial court expressly stated that it was not adjudicating the specific contractual duties, rights, and/or liability as pertaining to each individual subcontractor, as it was not clear *436 that each of them had signed the same exemplar subcontract. The ruling on summary adjudication is thus essentially an interpretation of contract provisions and has certain advisory qualities, as it does not dispose of an entire cause of action or affirmative defense, nor does it terminate any portion of the action with its determination of an issue of duty. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170-171 [188 Cal. Rptr. 104, 655 P.2d 306].)
Thus, regarding the duty to defend, although the ruling attempts to resolve certain elements of the cause of action for breach of contract provisions, i.e., those concerning the nature of the contract and possibly the plaintiff's performance or excuse for nonperformance, it leaves unresolved the issues of the cross-defendants' breach and the cross-complainant's damages. The indemnity clause requires the subcontractor to hold the general contractor harmless "against any other liability, cost or expense of any nature or kind arising out of or in any way connected with Subcontractor's performance of this Subcontract." (Italics added.) Civil Code section 2778 provides rules for interpreting an agreement of indemnity which are to be applied unless a contrary intention appears; subdivision 4 of that section provides: "The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so." (Italics added.) The "matters embraced by the indemnity" (Civ. Code, § 2778, subd. 4) in this case are tied by the indemnity clause to those liabilities or expenses connected with the subcontractor's performance of the subcontract (excepting liabilities or expenses caused by the general contractor's sole negligence or sole willful misconduct).
We believe summary adjudication of the duty to defend and its relationship to the duty to indemnify (i.e., the scope of "the matters embraced by the indemnity") is premature. No determination has yet been made as to whether the subcontractors were negligent in the performance of their work, giving rise to a duty to indemnify and a related duty to defend. Pacific Scene has not clearly established that under this indemnity clause, the duty to defend against claims of liability is entirely free-standing of the duty to indemnify for liability arising out of a subcontractor's negligence. (Civ. Code, § 2778, subd. 4.) (5) While an insurance company has a broad duty to defend, due to the possibility of coverage under the policy, a contract of indemnity is not construed in precisely the same manner as is an insurance contract, because it is not necessarily an adhesion contract as is an insurance policy. (Goldman v. Ecco-Phoenix Elec. Corp. (1964) 62 Cal.2d 40, 49 [41 Cal. Rptr. 73, 396 P.2d 377].) (1d) It is as yet unclear whether the subcontractors *437 are being expected to defend the developer, Pacific Scene, against claims for which it may be strictly liable, but for which the subcontractors are not strictly liable. (La Jolla Village Homeowners' Assn. v. Superior Court (1989) 212 Cal. App.3d 1131, 1144 [261 Cal. Rptr. 146]; GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal. App.3d 419, 429-430 [261 Cal. Rptr. 626].)
(6) Moreover, as a practical matter, the ruling does not finally resolve the duty to defend issue. Since there are approximately 24 subcontractors, each of whom performed work on a different phase or area of construction, their duty to defend is apparently limited by the clause to the issues concerning the type of work they did; Pacific Scene thus seeks to have a series of related defenses provided. While such a fragmented duty to defend poses no particular problems with regard to any ultimate division of the costs of defense, as part of the indemnification duty, it does pose practical problems for an immediate or current duty to defend (or to pay pro rata for another's defense) up to and including trial. There has been as yet no determination of any breach of this duty, which would allow the consequences of a failure to defend to be made clear.[7] The ruling is thus preliminary or advisory in character, and does not fully dispose of any portion of the action; it is inconsistent with the legislative intent of section 437c, subdivision (f). (City of Emeryville v. Superior Court, supra, 2 Cal. App.4th at p. 25.)
With respect to the trial court's labeling of the subject indemnity provision as type I, as opposed to a general indemnity clause, that ruling again is essentially advisory in nature and is premature in the sense that other elements of the breach of indemnity contract cause of action (cross-complainant's, performance or excuse from performance, breach and damages) remain unresolved. (7) Although a trial court is authorized to interpret a contractual provision as a matter of law (Hillman v. Leland E. Burns, Inc. (1989) 209 Cal. App.3d 860, 866-867 [257 Cal. Rptr. 535]), where such interpretation of contractual duties does not fully dispose of any portion of the action, it is not a proper subject of summary adjudication.
In conclusion, this court is not prepared to say that outside the insurance context there may never be an appropriate summary adjudication of a *438 particular contractual duty. We are, however, convinced that this ruling is not an appropriate summary adjudication, and that it creates more problems than it solves in the litigation. We accordingly grant the petition for writ of mandate to require the trial court to vacate its ruling granting in part the motion for summary adjudication.
DISPOSITION
Petition granted. Let a writ of mandate issue directing respondent court to vacate its order granting in part the summary adjudication motion and enter a new order denying the motion in full. The stay of trial is vacated and the parties may seek a new trial date. This opinion shall become final as to this court 10 days after it is filed. (Cal. Rules of Court, rule 24(d).)
Todd, Acting P.J., and Froehlich, J., concurred.
The petition of real parties in interest for review by the Supreme Court was denied July 14, 1994.
NOTES
[1] All statutory references are to the Code of Civil Procedure unless otherwise specified.
[2] We shall refer to the petitioners jointly as Regan Roofing.
[3] Pacific Scene's motion had presented as a subsidiary issue whether the subcontractors' insurance carriers should be considered primary.
[4] At oral argument, Pacific Scene requested judicial notice of various legislative history materials concerning section 437c, subdivision (f). (Evid. Code, §§ 452, subd. (c), 459, subd. (a).) We granted the request and offered Regan Roofing an opportunity to respond. We had previously reviewed these materials in our independent research in preparing this opinion and do not find them dispositive on the particular issue presented. (See, e.g., Beech Aircraft Corp. v. Superior Court (1976) 61 Cal. App.3d 501, 515-517 [132 Cal. Rptr. 541].)
[5] The standard elements of a cause of action for negligence are (1) the defendant's legal duty of care toward the plaintiff, (2) the defendant's breach of that duty by negligent act or omission, (3) injury to the plaintiff due to the breach, shown by proximate or legal cause, and (4) damage to the plaintiff. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 527, p. 558.) Commentators have suggested an example of a proper summary adjudication of an issue of duty in the negligence context: "A negligence action may be based on both the general duty of due care and specific statutory duties. Defendant may seek summary adjudication it did not owe a certain statutory duty without disposing of the action based on the general duty of due care." (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1993) ¶ 10:44.3, p. 10-15.)
[6] At oral argument, counsel for Pacific Scene suggested that if Pacific Scene's cross-complaint were amended to state a single claim for declaratory relief, summary adjudication of the duty to defend would be proper. However, in this proceeding, we are required to take the pleadings as we find them; in any case, as we will explain, there are unresolved issues as to the scope of this particular indemnity clause.
[7] Regan Roofing is evidently arguing that by defending itself against Pacific Scene's cross-complaint, it is impliedly also defending Pacific Scene against the Association's negligence claims and thus is somehow already providing a defense to Pacific Scene under the indemnity clause. However, Pacific Scene's motion apparently sought a more direct performance of the duty to defend, apparently as to all of the Association's claims, including strict liability. At least, the requested ruling on the motion would serve to place considerable settlement pressure on the subcontractors. We are deciding this petition solely on statutory grounds, however. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263533/ | 133 N.J. Super. 394 (1975)
336 A.2d 760
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VINCENT D. BAKER, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued March 4, 1975.
Decided March 21, 1975.
*395 Before Judges KOLOVSKY, LYNCH and ALLCORN.
Mr. Edward J. Ennis, designated counsel, argued for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).
Ms. Susan W. Sciacca, Deputy Attorney General, argued for respondent (Mr. William F. Hyland, Attorney General, attorney).
The opinion of the court was delivered by LYNCH, J.A.D.
This is one of the three appeals presently before this court arising out of convictions of defendant on separate counts of Monmouth County Indictment No. 557-70. That indictment contained six counts. By agreement of the State the counts were severed for trial *396 or other disposition into three parts, each part referring to a separate date and containing two counts wherein defendant was respectively charged with the possession and sale of heroin.[1]
This appeal relates to defendant's convictions after jury trial on the third and fourth counts of the indictment, respectively charging possession and sale of heroin on December 23, 1970.
As in our decision in A-1631-72, 133 N.J. Super. 398, we reverse because of the trial judge's improper limiting of cross-examination of Anthony Martinez, an undercover narcotics investigator for the State Police and the key prosecution witness. In the instant case, at the time of his testimony below Martinez had been indicted by the State for misconduct in office and by the Federal Government for conspiracy to move contraband in interstate commerce. He had not, however, pleaded guilty to the state indictment, in contrast to the situation at the trial of A-1631-72, by which time Martinez had entered a guilty plea to the state indictment.
Since there was no plea of guilty by Martinez on his indictment and no jury conviction thereon at the time of the trial below, there could have been no cross-examination under N.J.S.A. 2A:81-12 with respect to his "convictions." However, under the same statute the "interest" of a witness may be shown for the purpose of affecting his credibility. Martinez' "interest" arises from the possibility that in return for his testimony he had received a promise of lenient treatment on the indictments then pending against him or, on the other hand, was apprehensive of more stringent treatment thereon if he did not so testify. The trial court, following *397 a voir dire conducted outside the presence of the jury, during which the witness denied receiving any such promises or holding any such expectations, refused to allow any mention to the jury of either the indictments or Martinez' suspension from the State Police.
This ruling constituted prejudicial error. Defendant was entitled to have the jury informed of Martinez' status in the eyes of the law, both from the State's point of view as well as the Federal Government's. State v. Curcio, 23 N.J. 521, 527 (1957). The fact that he denied holding any expectation of leniency in return for his testimony was merely another fact to be considered by the jury, not by the trial judge, in assessing his credibility. And it is immaterial for purposes of admissibility whether the pending indictments relate to the same cause in which the witness is testifying. See Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624 (1931); State v. Curcio, supra; State v. Zwillman, 112 N.J. Super. 6, 18-19 (App. Div. 1970), certif. den. 57 N.J. 603 (1971); Annotation, "Preventing or limiting cross-examination of prosecutor's witness as to his motive for testifying," 62 A.L.R.2d 610, §§ 3 and 5 (1958).
Since reversal follows we do not reach defendant's remaining contentions. The convictions on counts three and four of the indictment are reversed and a new trial ordered thereon.
NOTES
[1] The other appeals pending in this court are A-1631-72, stemming from convictions after trial on counts one and two of the indictment, and A-520-72 stemming from a conviction entered on count six pursuant to a plea bargain involving counts five and six. Opinions therein are being filed today. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263538/ | 24 Cal.App.4th 1724 (1994)
30 Cal. Rptr.2d 106
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Appellant,
v.
MARK STANLEY, Defendant and Respondent.
Docket No. A061769.
Court of Appeals of California, First District, Division Four.
April 21, 1994.
*1726 COUNSEL
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White and Mary A. Roth, Deputy Attorneys General, for Plaintiff and Appellant.
Kadushin, Fancher & Wickland and Paige Wickland for Defendant and Respondent.
OPINION
POCHE, J.
Plaintiff, City and County of San Francisco (city), appeals from an order modifying the amount of child support and ordering blood tests of the child, her mother and defendant, Mark Stanley.
In January of 1987 the city brought a complaint for child support, reimbursement of public assistance, and establishment of paternity against Mark Stanley (Stanley) on behalf of a little girl born in October 1985. Stanley, who was represented by counsel, answered the complaint asserting as an affirmative defense that another man was listed as the child's father on the birth certificate, that the mother had refused to communicate with him about the child and that he lacked information to know whether the child was his daughter. Once the district attorney moved for temporary support, the parties entered into a stipulation for paternity blood testing. That testing was apparently never done.
In early May 1988 Stanley substituted himself in propria persona for his counsel. At a hearing later in the month Stanley stipulated to being the parent of the little girl. An order issued establishing his paternity and directing him to pay child support in the amount of $140 monthly to the city.
In February 1993 the district attorney moved on Stanley's behalf to modify the order on the grounds that "claimant's income has substantially decreased since the date of the existing order." At the hearing on the motion, Stanley, representing himself asked the court to order blood testing of the *1727 child in order to verify his paternity. He was separated from his present wife who was unwilling to reconcile without verification that the little girl was indeed Stanley's daughter.
Counsel for the city vigorously opposed the testing, and asked the court if it would also order testing of the man who was listed on the birth certificate as the father. The court granted the testing request, but limited it to "these people [the mother, child and Stanley] under the authority of the court and the jurisdiction of the court." Stanley then stipulated to increased support of $204 a month. The city took a timely appeal from that portion of the order calling for blood testing.
DISCUSSION
(1) As an initial matter defendant contends that the order appealed from is nonappealable. He is wrong. The order from which the city appeals is a postjudgment order modifying child support. (Code Civ. Proc., § 904.1, subd. (a)(2); County of Los Angeles v. Patrick (1992) 11 Cal. App.4th 1246, 1250 [14 Cal. Rptr.2d 665] [city appeals from order modifying amount of child support awarded in Aid to Families With Dependent Children recoupment].)
An action by the county may be brought on behalf of a minor child solely to determine paternity and child support. (Welf. & Inst. Code, § 11350.1.) The issues in such actions are "limited strictly to the question of paternity ... and child support." (Welf. & Inst. Code, § 11350.1, subd. (a).) "A final determination of parentage may be made in any action under this section as an incident to obtaining an order for support." (Welf. & Inst. Code, § 11350.1, subd. (a).) Such an action was brought by the city on behalf of the minor in 1987. A final judgment was entered June 24, 1988, based upon a stipulation between the parties, finding Stanley to be the father of the child, and ordering him to pay child support for her, "[b]ased on the income evidence presented at the hearing."
Stanley moved to modify the support order in February 1993 on the grounds contained in the form pleading that his "income has substantially decreased since the date of the existing order." Thus, the asserted ground for making the motion to modify was the changed circumstance of Stanley's ability to pay. (2) Child support orders are subject to modification upon a showing of a material change of circumstances. (In re Marriage of Catalano (1988) 204 Cal. App.3d 543, 548 [251 Cal. Rptr. 370].)
(3a) At the hearing on the motion to modify support, however, the commissioner expanded the scope of the order to include the question of *1728 blood testing. The city asserts that the request for blood testing was untimely on the basis that Evidence Code former section 892 (now Fam. Code, § 7551) permits such testing where paternity is an issue unless to permit the testing will unduly delay the proceeding. The testing question here was well beyond being one of untimeliness. At the time the challenged blood testing was ordered paternity had long since been determined.
In the original proceeding by a document dated December 16, 1987, made while Stanley was represented by counsel, the parties stipulated to blood testing of Stanley, the mother and the child "to the end that the tests will be completed within 60 days of the date of this order," absent a written extension.[1] Stanley did not participate in the testing he had agreed to, and some six months later in June of 1988 he stipulated to paternity.
"The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes...." (Fam. Code, § 7636.) (4) Therefore, "[a] judgment of paternity, even if taken by default, is res judicata in any subsequent civil enforcement proceeding." (County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 488 [198 Cal. Rptr. 779, 674 P.2d 750].)
Notwithstanding the finality which is imputed to paternity determinations, there are a limited number of situations in which a judgment stemming from a Welfare and Institutions Code section 11350.1 hearing may be attacked. A parent who signed an agreement for entry of judgment may make a successful collateral attack on a final judgment of paternity if the parent acts promptly and can demonstrate both that he or she was not told of his or her right to trial and that he or she was unaware of that right and would not otherwise have executed the agreement. (County of Los Angeles v. Soto, supra, 35 Cal.3d at p. 486.) A parent can challenge the support order which issued from a Welfare and Institutions Code section 11350.1 hearing by bringing his or her own Family Code action. (Welf. & Inst. Code, § 11350.1, subd. (b);[2] see also Monterey County v. Cornejo (1991) 53 Cal.3d 1271, 1283-1284 [283 Cal. Rptr. 405, 812 P.2d 586] [parent can relitigate in a family law action question of entitlement to dependent tax exemption].)
*1729 (5) (See fn. 3.), (3b) We have found no authority, and Stanley offers none, for the proposition that a parent may use a motion to modify child support as a vehicle to reopen the issue of paternity once a final judgment of paternity has been rendered.[3] Indeed, the only authority on the subject holds to the contrary. In De Weese v. Unick (1980) 102 Cal. App.3d 100, 104-106 [162 Cal. Rptr. 259], a father's motion for blood testing with a newly developed test made in response to a motion for modification of support was properly denied where the four-year-old finding of paternity was res judicata on the question of paternity. Since the only conceivable relevance that blood testing could have in this case is to whether or not Stanley is in fact the biological father, the court abused its discretion in ordering blood testing where the issue of paternity was already determined.
The commissioner made this ruling out of a laudable motive, noting "I also believe ... that it is still in the best interest of the children to know their biological history for their own future and I think that it's important for children to have that knowledge." Here, of course, it is not the child who is seeking to verify who her biological father is. We express no opinion as to whether the child, should she wish to do so, could reopen the issue of her paternity.
DISPOSITION
The order filed May 11, 1993, is reversed only insofar as it directs the custodial parent and the minor child to submit to blood testing.
Anderson, P.J., and Reardon, J., concurred.
NOTES
[1] No such written extension is in the record before us. Stanley's suggestion that the stipulation was to blood testing at any time up to and including 1993 when the motion to modify was brought is completely inconsistent with the text of the document which is before us.
[2] "Nothing contained in this section shall be construed to prevent the parties from bringing an independent action under the Family Code or otherwise, and litigating the issue of support. In that event, the court in those proceedings shall make an independent determination on the issue of support which shall supersede the support order made pursuant to this section." (Welf. & Inst. Code, § 11350.1, subd. (b).)
[3] Stanley argues that his stipulation to paternity is, in any event, voidable and thus should not bar the testing order. Such a judgment is voidable if a parent who was unrepresented by counsel can establish that he was not advised by the district attorney of his right to trial and that he was unaware of such rights and would not otherwise have executed the agreement. (County of Alameda v. Mosier (1984) 154 Cal. App.3d 757, 759 [201 Cal. Rptr. 550]; see also County of Los Angeles v. Castro (1984) 160 Cal. App.3d 899, 902-904 [207 Cal. Rptr. 15].) Mr. Stanley was not by this motion, as he himself concedes, attempting to set aside the judgment of paternity and did not even attempt to make either of the required evidentiary showings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263561/ | 479 F. Supp. 189 (1979)
Major Phillip E. HADLEY, Plaintiff,
v.
SECRETARY OF the ARMY et al., Defendants.
Civ. A. No. 78-2406.
United States District Court, District of Columbia.
September 17, 1979.
Alan Dranitzke, Washington, D. C., for plaintiff.
Nathan Dodell, Asst. U. S. Atty., Washington, D. C., for defendants.
MEMORANDUM AND ORDER
OBERDORFER, District Judge.
This matter is before the Court on cross-motions by the parties for summary judgment. The plaintiff, a major in the Army Medical Corps, brought this action for declaratory and injunctive relief to compel the Secretary of the Army to (honorably) discharge him in accordance with 10 U.S.C. § 3303 (1976). The Army's promotion system for officers provides generally that an officer seeking advancement in rank will be considered by promotion selection boards established and governed by statute. See 10 U.S.C. § 3281-3314 (1976). An officer who is not recommended for promotion by a board becomes a "deferred officer"; section 3303 provides that a deferred officer who is not recommended for promotion by the next promotion board to consider him "shall . . . be honorably discharged." 10 U.S.C. § 3303(d).
Plaintiff maintains that having been passed over twice for promotion by statutory *190 promotion selection boards, the Army is compelled to discharge him, despite the fact that he thereafter was promoted. Plaintiff asserts that a subsequent promotion conferred by a Standby Advisory Board ("STAB") exceeded statutory authority and could not nullify the action of the statutory promotion boards. He complains that he is stigmatized by the two pass-overs, and despite his later promotion, is subject to embarrassment and humiliation because of his failure to be promoted by statutory promotion selection boards. Plaintiff also asserts that the presence in his personnel record of the material that justified his earlier non-promotions will effectively foreclose him from future advancement in rank.
The Secretary takes issue with each of the plaintiff's allegations. He asserts that the provision requiring discharge after two "pass-overs" exists solely for the benefit of the Army, and does not confer upon military officers a right to discharge. In addition, the Secretary argues that any effect of plaintiff's second non-promotion was nullified by subsequent favorable review by the STAB Board, which had legal authority to reverse the findings of the statutory board. Finally, the Secretary maintains that to the extent that the plaintiff is subject to embarrassment or prejudice by the presence of adverse material in his personnel file, he has failed to exhaust administrative remedies established by statute and Army regulation.
The exchange of legal assertions, however, only begins to render intelligible the novel issues before the Court. In reality, plaintiff complains that he is the victim of a "wrongful promotion," illegally conferred upon him by the Secretary. The implications of the controversy can best be understood in the context of the fact that plaintiff received his college and medical training at government expense in return for a substantial commitment to serve in the U. S. Army. Defendant's Cross Motion for Summary Judgment, July 12, 1979, Ex. A at 38-39, 96 (hereinafter "Exhibit A"). He had only just begun to fulfill that obligation when he filed the instant action, accusing the Secretary of "contriving" to keep him in the Army in violation of law.
The resolution of this case turns fundamentally upon plaintiff's rights and the defendant's duties under 10 U.S.C. § 3303(d).[1] The parties' statements of material facts filed pursuant to Local Rule 1-9(h) make plain that there are no genuine issues of material fact as to any of the issues raised by the cross-motions for summary judgment. The Court holds that the undisputed material facts warrant the entry of summary judgment for the defendant. The following findings of fact and conclusions of law support that holding.
I. FINDINGS OF FACT
1. The Plaintiff, Major Phillip E. Hadley, graduated from Florida State University in 1970. While attending college, plaintiff participated in the Army ROTC Program, and upon graduation, he was commissioned a Second Lieutenant, Medical Service Corps.
2. After graduation, plaintiff was accepted for a position in the Army's Program for Medical, Dental and Veterinary Education for Regular Army Officers. As a member of this program, plaintiff attended *191 the Medical School of the University of Florida; his educational expenses were paid by the U. S. Army, and he received full military pay and allowances while in medical school.
3. Plaintiff received an M.D. degree from the University of Florida in 1974.
4. During his last year of medical school, plaintiff applied for and was accepted for further military-sponsored professional training in the Army Internship Program to enable him to specialize in obstetrics and gynecology.
5. Upon graduation, plaintiff was assigned for his training to the Walter Reed Army Medical Center, Washington, D. C., where he served as an intern from June, 1974, until June, 1975.
6. By letter of December 3, 1974, plaintiff acknowledged his selection for residency training in obstetrics and gynecology. He participated in the residency program from June 24, 1975, to June 23, 1978.
7. During this period, plaintiff received four annual Officer Efficiency Reports (OER's): the first, covering his intern year, was for the period from July, 1974, to June, 1975; the second, covering the first year of residency, was for the period June, 1975, to June, 1976; the third, covering his second year of residency, was for the period June, 1976, to June, 1977; the fourth, covering his third year of residency, was for the period June, 1977, to June, 1978.
8. In April, 1977, plaintiff was considered for promotion to Captain in the Regular Army (RA) by a statutory Promotion Selection Board. The Board had before it the first three OER's, see paragraph 7, supra. The Board recommended that plaintiff not be promoted; that recommendation was subsequently approved by the Secretary of the Army.
9. By letter of November 10, 1977, plaintiff was notified that the Board had not recommended that he be promoted. The notification indicated that the plaintiff's status was that of a "deferred officer" pursuant to 10 U.S.C. § 3303.
10. In April, 1978, a second statutory Promotion Selection Board convened to consider officers for promotion to Captain in the Regular Army. Plaintiff was one of the officers considered by the Board, which had before it the same three OER's considered by the Board noted in Paragraph 8, supra. The Board recommended that plaintiff not be promoted. The Secretary of the Army approved the Board's action on April 26, 1978.
11. By letter of April 25, 1978, Major Gary L. Tonniges, AMEDD Personnel Support Agency, forwarded a request for Standby Advisory Board (STAB) reconsideration of plaintiff's non-promotion to the U. S. Army Military Personnel Center, Alexandria, Va. According to a notation on the request, a Mr. Dubbs concluded that the records indicated no basis for STAB reconsideration.
12. Subsequently, the Office of the Surgeon General determined that the file reviewed by the second promotion selection board contained two copies of the OER for the period June 24, 1975, through June, 1976, which was unfavorable.[2] On May 4, 1978, Lieutenant Colonel Kleber, Chief Personnel Services Division, Office of the Surgeon General, requested further review of plaintiff's personnel records to determine whether the duplication of the OER would form the basis for a STAB reconsideration of plaintiff's second non-promotion.
13. By letter of May 19, 1978, the Commander, Health Services Command, was notified that plaintiff had not been selected for promotion for a second time and, consequently, would be discharged on November 1, 1978, pursuant to 10 U.S.C. § 3303. However, paragraph 3 of the letter stated:
Subsequent to Captain Hadley's non-selection, it was determined that his Official Military Personnel File (OMPF) was improperly constituted. His records are being corrected and will be submitted to a Standby Advisory Board for consideration. *192 Selection by this board and approval by the Secretary of the Army would result in Captain Hadley's promotion to Captain RA and would invalidate the 1 November 1978 mandatory discharge date . . ..
(Exhibit A, at page 82).[3]
14. Plaintiff was notified of the contents of this letter on June 7, 1978, and acknowledged receipt of the notice of pending discharge. Plaintiff lined through paragraph 3 of the acknowledgement which stated:
I acknowledge that I am aware of the Standby Advisory Board (STAB) which is pending in my case and that favorable action by the board and the Secretary of the Army will terminate this discharge process.
(Exhibit A, at page 81).
15. Plaintiff submitted a request for early discharge on June 30, 1978, pursuant to Chapter 11, AR 635-120. On July 13, 1978, the Office of the Deputy Chief of Staff for Personnel formally disapproved plaintiff's request for early discharge prior to the announcement of the results of the STAB.
16. On July 24, 1978, a STAB Board selected plaintiff for promotion to Captain, Regular Army. Plaintiff was informed of this action in August, 1978.
17. Headquarters, Department of the Army, immediately notified the Commander, Health Services Command, of plaintiff's selection for promotion by the STAB. Based upon this action, the notice of discharge of May 19, 1978, was cancelled.
II. CONCLUSIONS OF LAW
A. Plaintiff's claim that the Army wrongfully promoted and failed to discharge him turns upon whether 10 U.S.C. § 3303(d) confers upon an officer the right to compel the Army to discharge him if he has twice failed to be promoted by statutory promotion selection boards. To litigate this claim, plaintiff must first establish that he has standing to complain of the Army's action. Specifically, a party will be denied standing if the interest allegedly injured is not arguably within the zone of interests protected by the statute invoked, even though injury in fact has been sufficiently established. Committee for Auto Responsibility of Solomon, 195 U.S.App.D.C. 340, 603 F.2d 922 (D.C.Cir. 1979); Tax Analysts & Advocates v. Blumenthal, 184 U.S.App. D.C. 238, 566 F.2d 130 (1977). For the reasons set forth below, the Court concludes that plaintiff Hadley lacks standing to bring this action.
The statutory basis for the Army promotion system is the Officer Personnel Act of 1947, as amended. Act of August 7, 1947, ch. 512, 61 Stat. 795 (1947). The Act substituted a system of statutory promotion selection boards for the former, seniority-based system. Under the promotion board scheme, which has been incorporated virtually intact into the present section 3303, each officer is considered for promotion by a selection board whose membership and procedures are set out by statute. See 10 U.S.C. §§ 3281-3314 (1976). An officer who has been once considered by a selection board and not recommended for promotion becomes a "deferred officer." A deferred officer is considered for promotion by the next selection board considering officers of his grade. Section 3303(d) provides that:
A deferred officer who is not recommended by the next selection board considering officers of his grade shall . . (3) . . . be honorably discharged . . ..
10 U.S.C. § 3303(d) (1976).
The purpose of this system, as described by the House Report on the Act, *193 was to strengthen the officers corps. H.R. Rep.No.640, 80th Cong., 1st Sess. 3 (1947). The provisions of section 3303 are plainly for the benefit of the Army, to guarantee that the most fit officers are systematically selected for promotion and the remaining officers are discharged. The statute cannot sensibly be read to encompass the interest of an officer to seek a discharge when the Army has determined that its interests would best be served by his retention. Such an interpretation would contravene the well-established principle that statutes pertaining to the Army should be read narrowly, so as to limit judicial interference in military affairs and protect the discretion of military commanders. See, e. g., Parker v. Levy, 417 U.S. 733, 743, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974); Orloff v. Willoughby, 345 U.S. 83, 94, 73 S. Ct. 534, 97 L. Ed. 842 (1953); Dilley v. Alexander, 195 U.S.App. D.C. 332, 337-338, 603 F.2d 914, 919-920 (1979). In similar situations, where military personnel have sought to invoke a provision relating to the fitness of personnel as a lever to force their discharge, the Courts have uniformly rejected the proffered constructions. See Orloff v. Willoughby, supra; Allgood v. Kenan, 470 F.2d 1071 (9th Cir. 1972); Silverthorne v. Laird, 460 F.2d 1175, 1186 (5th Cir. 1972). For such a construction would create incentives for military personnel to disqualify themselves physically, or in this case create disincentives for promotion, which would tend to defeat the obvious objective of Congress to create incentives for military personnel to keep fit and to strive for promotion. See Orloff v. Willoughby, supra, 345 U.S. at 94-95, 73 S. Ct. 534.
The conclusion that this plaintiff's claim for discharge is not in the zone of interests protected by 10 U.S.C. § 3303(d) is quite consistent with the Court's recognition that section 3303 protects the interests of officers wrongfully refused promotion and discharged. See, e. g., Knehans v. Alexander, 184 U.S.App.D.C. 420, 566 F.2d 312 (1977), cert. denied, 435 U.S. 995, 98 S. Ct. 1646, 56 L. Ed. 2d 83 (1978). It is no great leap to conclude that a statute designed to strengthen the officer corps would protect the interests of qualified officers who are wrongfully denied promotions through violations of specific procedural guarantees. An officer being discharged, having been wrongfully denied promotion on account of discrimination, for example, might also have such a claim. But the plaintiff here conspicuously fails to complain about the underlying decisions not to promote him. He seeks instead to capitalize upon them by a discharge.
Finally, plaintiff lifts the phrase "shall . . . be honorably discharged" in section 3303(d) out of its context to allege that it is mandatory and designed to confer a right of discharge upon an unhappy officer. This interpretation does not survive analysis. The term "shall" in section 3303(d) precedes three alternatives that describe how an officer not recommended for promotion shall be separated from the Army; it guarantees that officers eligible for retirement will not be perfunctorily discharged, but will be treated with concern for approaching retirement dates. Section 3303(d)(1) guarantees that an officer within two years of retirement under section 3913 will be maintained on the active list until he is eligible for retirement. Read in its entirety, section 3303(d) is plainly inconsistent with the plaintiff's argument that it is designed to protect the interest of a non-promoted officer in a speedy severance from the Army. To the extent that section 3303(d) imposes any mandatory duty upon the Army, it is to protect the interests of a non-promoted officer after the Army has made a discretionary determination to discharge him. It requires the Army to separate the officer in accordance with the provisions of section 3303(d)(1-3) rather than by immediate discharge, without severance pay or concern for upcoming retirement dates.
The Court concludes that the plaintiff's claim is not arguably within the zone of interests protected by section 3303(d) of Title 10, U.S.C. He may not, for this reason, complain of the action of the STAB Board in promoting him to Captain, RA, or of the Secretary of the Army in retaining him on *194 active service. He must, in contending with the consequences of administrative grace, accept the sweet with the bitter. Knehans v. Alexander, 184 U.S.App.D.C. at 423, 566 F.2d at 315; compare Arnett v. Kennedy, 416 U.S. 134, 153-54, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974).
The foregoing conclusions make it unnecessary and inappropriate to reach the question of whether the STAB Board may properly nullify the action of a statutory selection board, or whether the Secretary acted improperly in submitting the plaintiff's file for STAB Board review in the first instance. Compare McClelland v. Andrus, 196 U.S.App.D.C. 371, 384-385, 606 F.2d 1278, 1291-1292 (1979).
B. In his complaint, the plaintiff alleges that his military career is permanently blotted by the presence in his record of the OER's that prompted the statutory selection boards originally to recommend his non-promotion. The Court understands this assertion to be support for plaintiff's claim of an entitlement to discharge. He has made no suggestion that the OER's were inaccurate or improperly included in his file. To the extent that plaintiff has suffered or will suffer injury from the presence of these OER's, he has no claim for judicial relief at this time. The law is clear that "an aggrieved military officer must first exhaust his administrative remedies with his particular service's Board for Correction of Military Records prior to litigating his claims in federal court." Knehans v. Alexander, 184 U.S.App.D.C. at 423, 566 F.2d at 315 and case cited therein. The Army Board for Correction of Military Records (ABCMR) has broad statutory authority conferred by 10 U.S.C. § 1552 to correct any error or to remove an injustice. See Ford, Officer Selection Boards and Due Process of Law, 70 Mil.L.Rev. 137, 152 (1975). It is uncontroverted that plaintiff has not sought relief from the ABCMR. See Defendant's Cross-Motion for Summary Judgment, July 12, 1979, Exhibit C (Declaration of Raymond J. Williams, Executive Secretary of ABCMR). Unless and until plaintiff has tried and failed, the Court may not intervene.[4]
In sum, the Court holds that the defendant is entitled to summary judgment as a matter of law. For this reason, and upon consideration of the cross-motions for summary judgment, the memoranda in support of each, the opposition thereto, and oral arguments thereon, and the pleadings, exhibits, and affidavits in the entire record, it is, this 17th day of September, 1979, hereby
ORDERED, ADJUDGED, AND DECREED: That defendant's motion for summary judgment is GRANTED in all respects, and the complaint is DISMISSED.
NOTES
[1] Section 3303(d) reads:
(d) A deferred officer who is not recommended by the next selection board considering officers of his grade and promotion list shall
(1) if he is eligible, be retired under section 3913 of this title;
(2) if he is not eligible for retirement under section 3913 of this title, but is eligible for retirement under any other provision of law, be retired under that law on the date when he would have been retired under section 3913 of this title if he were eligible; or
(3) if he is not eligible for retirement under section 3913 of this title or any other provision of law, be honorably discharged on the date he would have been retired under section 3913 of this title if he were eligible, with severance pay computed by multiplying his years of service, but not more than 12, computed under section 3927(a) of this title, by two months' basic pay of the grade in which he is serving on the date of his discharge.
[2] Thus the repetition could have had a cumulative impact on a reader who failed to notice the erroneous duplication.
[3] In an affidavit attached to his motion for summary judgment, plaintiff asserts that the finding that his file was "improperly constituted" was "contrived" in order to "circumvent the command of 10 U.S.Code § 3303." Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, June 21, 1979, Exhibit I, at paragraph 11. Plaintiff's allegations of bad motive, even if material, are not sufficient to support a motion for summary judgment under Rule 56(e), Fed.R.Civ.P., since they are not based on "personal knowledge" nor would the plaintiff be "competent to testify" to the motive of defendants in seeking STAB review.
[4] Section 3303(c) is addressed specifically to the problem of foreclosure from future advancement in rank that plaintiff claims. It provides, inter alia, that if an officer who was not recommended for promotion by the first statutory board to consider his record is subsequently promoted by the second statutory board, "his first failure does not count as a failure of selection when he is thereafter considered for promotion to another regular grade." 10 U.S.C. § 3303(c). The statute is silent as to whether section 3303(c) also applies when the subsequent promotion is granted by a STAB Board. Cf. Knehans v. Alexander, supra, 184 U.S.App.D.C. at 423 n. 6, 566 F.2d at 315 n. 6 (STAB Boards are a creature of regulation, not statute). However, if the plaintiff were subject to discrimination because of his non-promotions by statutory boards, any claim under section 3303(c) should first be brought to the attention of the ABCMR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263591/ | 479 F. Supp. 401 (1979)
Karl Dean SCHLOBOHM, Plaintiff,
v.
U. S. ATTORNEY GENERAL, and Warden Charles Fenton, Defendants.
Civ. A. No. 79-320.
United States District Court, M. D. Pennsylvania.
October 19, 1979.
Karl Dean Schlobohm, pro se.
Sal Cognetti, Jr., Asst. U. S. Atty., Scranton, Pa., for defendants.
MEMORANDUM AND ORDER
CONABOY, District Judge.
Petitioner Karl D. Schlobohm, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, filed this action pursuant to 28 U.S.C. § 2241 on March 13, 1979. Petitioner seeks habeas corpus relief from this Court alleging that Respondents have violated his Constitutional rights by restricting his mail. Petitioner also alleges that Bureau of Prisons Policy Statement 7300.1A is discriminatory, and he seeks declaratory and injunctive relief. On May 22, 1979 Respondents filed an Answer to the Petition, and an affidavit and exhibits in support thereof. On October 9, 1979, pursuant to an Order of this Court, Respondents filed an Amendment to their Answer, and the matter is now ripe for disposition. We *402 hold today that Petitioner's Constitutional rights have not been abridged, and therefore the Petition for a Writ of Habeas Corpus is dismissed.
The facts of this case are as follows.[1] On October 16, 1978, Petitioner was cited in an incident report for unauthorized use of the mail. The charges were that Petitioner was corresponding with an inmate at the Federal Correctional Institution, Milan, Michigan, the letter being sent through an intermediate party. Petitioner was served with a copy of the incident report on October 17, 1978, and on that day he appeared before the Unit Discipline Committee. At that time he admitted to corresponding with inmates at other institutions, and he acknowledged that he knew of the prison policy forbidding such action. Petitioner was then placed on indefinite mail restriction.
Petitioner then continued his claim through the prison's appeal process. First, on October 19, 1978 he appealed to the Warden, and then on December 12, 1978 he appealed to the Regional Director of the Bureau of Prisons. Both of these appeals were denied, and Petitioner now seeks relief from this Court.
Petitioner's claims are that the actions of Respondents in placing him on mail restriction violate his right of free speech, association and privacy, and that the policy concerning inmate correspondence is discriminatory in that it allows an exception for male/female relationships while denying equal treatment to male/male relationships. We cannot agree with these contentions.
We must preface our study of the present question with the admonition that this Court does not intend to thrust itself headlong into the management and operations of the prison system. Prison administrators should be accorded wide ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Bell v. Wolfish, ___ U.S. ___, 99 S. Ct. 1861, 1878, 60 L. Ed. 2d 447 (1979). With this standard in mind, we will now consider Petitioner's First Amendment claims.
The United States Supreme Court has held that interference with inmate correspondence is permissible so long as the restrictions "further an important or substantial governmental interest unrelated to the suppression of expression," and they are "no greater than is necessary or essential to the protection of the particular governmental interest involved." Procunier v. Martinez, 416 U.S. 396, 413, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224 (1974). The governmental interests have been defined to be security, order, and rehabilitation. Id., at 413, 94 S. Ct. 1800.
Petitioner Karl Schlobohm admittedly violated the Bureau of Prisons Policy Statement when he corresponded with an inmate at another institution. He was given a three-step appeal process in which to adjudicate his claim. The only issues remaining, therefore, are the propriety of the Regulation itself and the permissibility of the punishment that was given.
The relevant section of the Bureau of Prisons Policy Statement 7300.1A reads as follows:
"Inmates are allowed to correspond with persons confined in other penal institutions provided they are members of his immediate family. Normally, correspondence with other inmates who are not family members will not be permitted except in unusual circumstances such as pre-existing male/female relationships which upon investigation shows that (a) the relationship is bona-fide and existed before commitment (b) the two proposed correspondents can show there is a genuine interest in the party's welfare; and (c) the staff of other institutions agree to the correspondence and agree that such *403 correspondence would be beneficial to both parties."[2]
It is the opinion of this Court today that this prohibition of inmate to inmate correspondence does indeed "further an important or substantial governmental interest." Cases have uniformly upheld the right of prison officials to restrict inmate to inmate correspondence. See Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971); Heft v. Carlson, 489 F.2d 268, 270 (5th Cir. 1973) ("Prison authorities have the right and responsibility to regulate correspondence of inmates"). But we are more enlightened by those Courts that have advanced actual reasons why the government wishes to restrict inmate to inmate correspondence. As the Court pointed out in Mitchell v. Carlson, 404 F. Supp. 1220, 1224 (D.Kan.1975), inmate to inmate correspondence could potentially serve as a "conduit through which inmates could perpetuate further crimes, attempt or plan escapes, or disrupt the effective operation of the federal penal system." And as the Eighth Circuit Court of Appeals pointed out in Watts v. Brewer, 588 F.2d 646, 650 (8th Cir. 1978), the institutional authorities have a peculiar and compelling interest in the regulation of this type of communication, giving as an example the situation where an inmate of one institution is transferred for his own safety to another institution, in which case the transfer could be completely frustrated by correspondence among inmates. We need not delve any further into the logic behind the Policy Statement in question. We are satisfied that the regulation of inmate to inmate correspondence as enumerated in the Policy Statement is designed to further the interests of security, order and rehabilitation.
We are also convinced that the second element of Procunier is satisfied, namely, that the regulation is no greater than is necessary to protect that interest. With the wide range of reasons that have been advanced to demonstrate the dangers to security, order and rehabilitation that inmate to inmate correspondence creates, it would be short-sighted of this Court to demand a more narrowly drawn restriction. It is in this area of regulating prison administration that we must pay special heed to the Wolfish policy of non-intervention. Ideally we would like to allow this correspondence, and to direct the prison officials to monitor each letter for threats to security or order. But in practical terms such an Order would cause shifts in manpower, it would result in a need for more help, more money, and changes in the administration of the entire system of mailing. We cannot act as administrator, and we will not substitute our judgment for that of the prison administrators. Since the present system forbids correspondence from inmate to inmate, but carves out from that restriction family members, and in some instances, girlfriends or boyfriends, we are satisfied that Policy Statement 7300.1A is as narrowly drawn as the prison system allows.
Petitioner has also alleged that since the regulation carves out an exception for male/female relationships while denying equal treatment for male/male relationships, it is unconstitutionally discriminatory. This claim is totally without merit. We consider it to be entirely within the discretion of the prison officials to determine that male/female relationships further an interest of rehabilitation while male/male relationships do not.
Finally, Petitioner attacks the imposition of the punishment of indefinite mail restriction. The facts of the present case indicate that Petitioner admittedly and knowingly violated existing prison regulations, and that he was afforded a full hearing in which to assert his claim. Restriction of his mail rights is reasonably related both to his actions and to the interests of the institution. The case of Mayberry v. Robinson, 427 F. Supp. 297 (M.D.Pa.1977) is instructive. In that case a prisoner attempted to communicate to an inmate at another *404 institution by way of a third party. The punishment meted out was the suspension of contact with that third party, and the Court held that this punishment was a permissible intrusion into the rights of both parties to send and receive information. Respondents in the present case point out that "indefinite mail restriction" is a device which monitors the prisoner's use of the mail, and allows his own actions to determine the duration of this monitoring process. We hold today that this is not an impermissible intrusion into Petitioner's Constitutional rights.
In summary, our analysis today is tempered by the admonition of Bell v. Wolfish, supra, that we should allow prison officials discretion in monitoring and implementing their policies. But we do consider it our duty to safeguard any impermissible restrictions on the free speech of prisoners by applying the principles of Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). Applying these principles to the present case we find that Policy Statement 7300.1A is legitimately related to the goals of security, order and rehabilitation, and that it is not impermissibly broad. We also hold that the punishment of indefinite mail restriction is a legitimate exercise of the prison administration's disciplinary power.
Accordingly, the Petition for a Writ of Habeas Corpus is dismissed.
NOTES
[1] There is no dispute as to any of the material factual issues of this case. We will therefore not require an evidentiary hearing. See 8(a) Rules Governing Section 2254 Cases in United States District Courts, 28 U.S.C.A. Foll. § 2254 (1977) (made applicable to actions under 28 U.S.C. § 2241 by Rule 1(b)).
[2] The focal point of our inquiry today is not so much the exceptions carved out in the policy statement, but rather the underlying order that prohibits inmates in one institution from corresponding with inmates in another. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263415/ | 893 A.2d 1177 (2006)
167 Md. App. 527
NATIONWIDE MUTUAL INSURANCE COMPANY
v.
Taylor F. WILSON.
No. 100, September Term, 2005.
Court of Special Appeals of Maryland.
March 3, 2006.
*1178 Steven E. Leder (Julie F. Maloney, on brief), Baltimore, for appellant.
Peter J. Kozenewski, Westminster, for appellee.
Panel HOLLANDER, SALMON, KENNEY, JJ.
KENNEY, J.
Nationwide Mutual Insurance Company ("Nationwide") appeals the judgment of the Circuit Court for Carroll County, granting summary judgment in favor of Taylor Wilson. The circuit court found invalid the fellow employee exclusion in the Nationwide business automobile policy issued to Allegheny Industries, Inc. ("Allegheny"). The court declared that Nationwide had a duty to indemnify up to $1,000,000 for any liability arising from an accident that Daniel McFarland caused during the course of his employment with Allegheny. Nationwide presents one question for our review, which we have slightly reworded:
Did the circuit court err by declaring invalid a "fellow employee exclusion" in Allegheny's commercial automobile policy, which reduces the amount of liability coverage under the policy to the minimum amount permitted under Maryland's compulsory motor vehicle insurance statute?
*1179 For the following reasons, we hold that the fellow employee exclusion at issue is valid and enforceable.
FACTUAL AND PROCEDURAL HISTORY
The material facts are undisputed. Allegheny, a Maryland corporation, performs general contracting work in the field of telecommunications. Its principal place of business is located in Carroll County, Maryland.
On the evening of June 19, 2002, Wilson and McFarland, both employees of Allegheny, were dispatched in a vehicle owned by Allegheny to perform maintenance work. While returning from the job in the early morning hours of June 20, 2002, McFarland, the driver, reportedly fell asleep, crossed the center line of the highway, and struck another vehicle head on. Wilson sustained severe injuries, including broken bones, cuts, and bruises. As a result of his injuries, he has undergone several operations, including two operations to remove more than ten feet of his small intestine. His medical expenses exceeded $100,000.
At the time of the accident, Allegheny maintained two insurance policies with Nationwide: a business automobile policy (the "Auto Policy") and a workers' compensation policy (the "Workers' Compensation Policy"). The amount of liability coverage under the Auto Policy was $1,000,000. The Auto Policy provided, in relevant part:
SECTION II-LIABILITY COVERAGE
A. Coverage.
We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto."
* * *
We have the right and duty to defend any "insured" against a "suit" asking for such damages or a "covered pollution cost or expense." However, we have no duty to defend any "insured" against a "suit" seeking damages for "bodily injury" or "property damage" or a "covered pollution cost or expense" to which this insurance does not apply. We may investigate and settle any claim or "suit" as we consider appropriate. Our duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements.
1. Who is An Insured
The following are "insureds":
a. You for any covered "auto."
b. Anyone else while using with your permission a covered "auto" you own, hire or borrow.
* * *
B. Exclusions
This insurance does not apply to any of the following:
* * *
5. Fellow Employee
"Bodily injury" to any fellow "employee" of the "insured" arising out of and in the course of the fellow "employee's" employment or while performing duties related to the conduct of your business.
A standard endorsement for Nationwide business automobile policies issued in Maryland was made part of the Auto Policy. The endorsement provided, in pertinent part:
With respect to coverage provided by this endorsement, the provisions of Coverage Form apply unless modified by the endorsement.
*1180 For a covered "auto" licensed or principally garaged in, or "garage operations" conducted in, Maryland, the Coverage Form is changed as follows:
A. Changes in Liability Coverage
Except with respect to the Business Auto Physical Damage Coverage Form, the Fellow Employee Exclusion is replaced by the following:
This insurance does not apply to "bodily injury" to any fellow "employee" of the "insured" arising out of and in the course of the "fellow employee's" employment or while performing duties related to the conduct of your business.
However, this exclusion does not apply for coverage up to the minimum limit specified by the Maryland Vehicle Law.
Wilson made demand upon McFarland and Nationwide, the insurer of the vehicle, for personal injury damages sustained as a result of the accident. Nationwide responded that, because Wilson was a fellow employee of McFarland and was injured in the course of employment, the "fellow employee" exclusion limited liability coverage under the policy to $20,000, the minimum amount of coverage required by Maryland Code (1977, 2002 Repl.Vol.), § 17-103(b) of the Transportation Article ("Trans."). Nationwide offered to settle with Wilson for $20,000 in exchange for a release of all claims.
On January 6, 2004, Wilson filed a complaint for declaratory judgment in the Circuit Court for Carroll County, naming Nationwide, Allegheny, and McFarland as defendants. In his complaint, he argued that the fellow employee exclusion was invalid under Maryland law and requested a declaratory judgment to that effect.
In his answer to Wilson's complaint, McFarland also asserted the invalidity under Maryland law of the fellow employee exclusion in the Auto Policy. Therefore, he requested that the court declare that Nationwide had both a duty to defend him in any action relating to the collision of June 20, 2002, and a duty to indemnify up to the full policy limit of $1,000,000 for any recovery due Wilson resulting from the collision.
Allegheny initially filed a motion to dismiss, but, after withdrawing that motion, it answered Wilson's complaint, asserting that the fellow employee exclusion was invalid. According to Allegheny, the court should issue a declaration imposing a duty on Nationwide to both defend Allegheny in any action relating to the June 20, 2002 collision and to indemnify Allegheny up to the full policy limit of $1,000,000. Neither McFarland nor Allegheny filed counterclaims seeking declaratory relief. Nationwide filed a timely answer and moved to dismiss the complaint.
On August 6, 2004, Wilson filed a motion for summary judgment. McFarland, in his response, requested that the court grant Wilson's motion. Allegheny also filed a counter-motion for summary judgment, asserting that Wilson's claim under Maryland's Workers' Compensation Act constituted his exclusive remedy against Allegheny. Allegheny, therefore, requested the court to deny Wilson's motion for summary judgment "and/or ... declare [Allegheny's] liability to [Wilson] consistent with Maryland Law and the terms and conditions of the automobile policy."
On September 10, 2004, Nationwide filed its own counter-motion for summary judgment. It requested that the court declare that the fellow employee exclusion in the Auto Policy was valid; that it had no duty under that policy to indemnify Allegheny in connection with any claim arising from the collision; and that its duty to indemnify McFarland was limited to $20,000.
*1181 On February 23, 2005, the circuit court, having determined that the material facts were undisputed, granted Wilson's motion for summary judgment. The court declared that the fellow employee exclusion was invalid as a matter of law and that Nationwide was obligated to fully indemnify Allegheny and McFarland "for any sums that Daniel Richard McFarland, as an employee of Allegheny Industries, Inc. becomes legally obligated to pay as a result of the accident that occurred June 20, 2002." Nationwide noted this timely appeal.[1]
STANDARD OF REVIEW
Under Maryland Rule 2-501(f), a court "shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." We review "a trial court's grant of a motion for summary judgment de novo." Remsburg v. Montgomery, 376 Md. 568, 579, 831 A.2d 18 (2003). See also Todd v. Mass Trans. Admin., 373 Md. 149, 154, 816 A.2d 930 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359, 800 A.2d 707 (2002); Schmerling v. Injured Workers' Ins. Fund, 368 Md. 434, 443, 795 A.2d 715 (2002).
When reviewing a grant of summary judgment, we first determine whether a genuine dispute of material fact exists *1182 "and only where such dispute is absent will we proceed to review determinations of law." Remsburg, 376 Md. at 579, 831 A.2d 18. Moreover, "we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party." Id. at 579-80, 831 A.2d 18. We generally "`uphold the grant of a summary judgment only on the grounds relied on by the trial court.'" Mitchell v. Baltimore Sun Co., 164 Md. App. 497, 508, 883 A.2d 1008 (2005) (quoting Ashton v. Brown, 339 Md. 70, 80, 660 A.2d 447 (1995)).
DISCUSSION
Here, the sole issue is the validity of the "fellow employee" provision in the Auto Policy, expressly limiting liability coverage for fellow employee claimants injured during the course of employment to the minimum coverage permitted under Maryland's compulsory motor vehicle insurance statute. Nationwide contends that the provision is valid because the policy provides for the minimum amount of security for bodily injury and death required by Trans. § 17-103(b). It finds support for that contention in the fact that the Court of Appeals has upheld an automobile liability exclusion that limits the level of coverage available to a family member residing with the insured at the time of the accident to the statutorily mandated level of liability coverage. Stearman v. State Farm Mut. Auto. Ins. Co., 381 Md. 436, 849 A.2d 539 (2004).
Wilson argues that the exclusion at issue is indistinguishable from the fellow employee exclusion that was held to be invalid in Larimore v. American Ins. Co., 314 Md. 617, 552 A.2d 889 (1989). Morever, he asserts that upholding the fellow employee exclusion would permit insurers to avoid indemnification despite an insured's payment of premiums for more than minimum coverage. This, he contends, subverts the public policy underlying Maryland's compulsory automobile insurance law.
Fellow employee exclusions are liability exclusions in automobile policies that are seen most often in commercial polices. See Andrew Janquitto, Maryland Motor Vehicle Insurance § 7.11(B), 234. (2d. ed.1999). Such exclusions are designed to prevent an employer from maintaining coverage for employees under both worker's compensation and business automobile insurance policies. Job A. Sandoval, Construction and Application of Provision of Automobile Liability Policy Expressly Excluding From Coverage Liability Arising From Actions Between Fellow Employees, 45 A.L.R.3d 288, § 3 (1972 & Supp.2004) (explaining that fellow employee exclusions seek to "relieve the employer of the onerous requirement of insuring his employees under his public liability insurance policy, such employees being already protected by the workmen's compensation statutes"). Prior to legislative enactment of mandatory automobile insurance coverage, fellow employee exclusions were upheld by federal courts applying Maryland law. See, e.g., Bevans v. Liberty Mut. Ins. Co., 356 F.2d 577, 581 (4th Cir.1966) (interpreting Maryland law and reasoning that the fellow employee exclusion operates to preclude a fellow employee from recovery under general liability insurance in addition to worker's compensation).
In 1972, the General Assembly enacted legislation designed to assure that drivers operating motor vehicles on Maryland roads were financially responsible. See Trans. § 17-101-110; Maryland Auto. Ins. Fund v. Perry, 356 Md. 668, 741 A.2d 1114 (1999). The "legislative policy has the overall remedial purpose of protecting the public by assuring that operators and owners of motor vehicles are financially *1183 able to pay compensation for damages resulting from motor vehicle accidents." Pennsylvania Nat. Mut. Cas. Ins. Co. v. Gartelman, 288 Md. 151, 154, 416 A.2d 734 (1980). Under the statutory scheme, every vehicle, with certain limited exceptions not here applicable, must maintain personal injury liability coverage of at least "$20,000 for any one person and up to $40,000 for any two or more persons" and property damage coverage of at least $15,000. Trans. § 17-103(b)(1)-(2).
After the enactment of the compulsory liability insurance law, certain exclusions commonly found in automobile insurance policies that effectively excluded all liability coverage were held to violate public policy and declared invalid. See, e.g., Salamon v. Progressive Classic Ins. Co., 379 Md. 301, 303, 841 A.2d 858 (2004) (holding that a "pizza exclusion," by which an insurer could deny coverage to an insured driver delivering property for compensation at the time of the accident, was void as against public policy); Lee v. Wheeler, 310 Md. 233, 237, 528 A.2d 912 (1987) (concluding that a "phantom vehicle exclusion," which excluded liability coverage to a Maryland insured in cases where there was no physical contact between the insured vehicle and the phantom vehicle, was invalid under Maryland law).
Among these exclusions that were held to violate the compulsory liability insurance law was the so-called "household exclusion," which excluded coverage for bodily injury sustained by the insured or any family member of the insured residing in the insured's household. The household exclusion sought to limit the potential for fraudulent or collusive claims being brought by members of the insured's household.
In Jennings v. Gov't Employees Ins. Co., 302 Md. 352, 488 A.2d 166 (1985), the Court of Appeals determined that a household exclusion was inconsistent with Maryland's compulsory liability insurance law. It reasoned that, "`[b]ecause the stated purpose of the [compulsory liability insurance law] is to assure that a driver be insured to a minimum level, such an exclusion provision contravenes the purpose and policy of the ... act.'" Id. at 362, 488 A.2d 166 (quoting Bishop v. Allstate Ins. Co., 623 S.W.2d 865, 866 (Ky.1981)). The Court further explained that, ordinarily, where a statute provides for specific exclusions, others will not be permitted. In other words, if the legislature had intended to permit the exclusion from coverage of members of an insured's household, it would have created an express exception to the mandatory coverage provisions. Id. at 359-60, 488 A.2d 166. According to the Court, "if any and all exclusions from this required liability coverage are valid so long as they are not expressly prohibited by statute, the purpose of the compulsory automobile liability insurance could be frustrated to a significant extent." Id. at 360, 488 A.2d 166.
One year later, in State Farm Mut. Auto. Ins. Co. v. Nationwide Mut. Ins. Co., 307 Md. 631, 516 A.2d 586 (1986), the Court of Appeals considered "[w]hether the `household exclusion' [wa]s wholly invalid, or whether its invalidity extend[ed] only to the amount of the minimum liability coverage required by the compulsory insurance law." Id. at 633, 516 A.2d 586. Recognizing that the compulsory liability insurance statute created a floor rather than a ceiling to liability coverage, and relying upon the general principle that "[a] contractual provision that violates public policy is invalid, but only to the extent of the conflict between the stated public policy and the contractual provision," the Court determined that the household exclusion was a valid and enforceable contractual provision for limiting coverage *1184 above the statutory minimum. Id. at 643, 516 A.2d 586. The Court remarked:
Put simply, what the legislature has prohibited is liability coverage of less than the minimum amounts required by § 17-103(b)(1) of the Transportation Article.... The "household exclusion" violates public policy only to the extent it operates to prevent this mandatory minimum coverage.
Id. at 637, 516 A.2d 586.
Recently, in Stearman v. State Farm Mut. Auto. Ins. Co., 381 Md. 436, 849 A.2d 539 (2004), the Court of Appeals again considered the validity of the household exclusion. The policy in Stearman provided for general liability coverage up to $100,000, but limited coverage for bodily injury to the insured or any member of the insured's family residing in the insured's household, to "the limits of liability required by law." Id. at 440, 849 A.2d 539. The claimant argued that State Farm was "`limited to the facts of that case and is not a general validation of exclusions above statutory minimum requirements.'" Id. at 445, 849 A.2d 539. The Stearman Court acknowledged that "State Farm is not a `general validation' of any exclusion above a statutory minimum ... it [is] quite clear that the case does validate household exclusions above those minimums." Id.
It was also argued in Stearman that Maryland Code (1997, 2002 Repl.Vol.), § 19-502(b) of the Insurance Article ("Ins.") demonstrated a legislative intent to require those insurance policies providing for liability coverage in excess of the statutory minimum to provide the same amount of coverage under all circumstances. Insurance § 19-502(b) provides:
On the amount of liability coverage provided by insurer.Neither this substitle nor Title 17 of the Transportation Article prevents an insurer from issuing, selling, or delivering motor vehicle liability insurance policies that provide liability coverage in excess of the requirements of the Maryland Vehicle Law.
The Court rejected the claimant's contention. Judge Greene, writing for a majority of the Court, explained:
The plain language of the quoted section evidences an intention to permit insurance companies to offer policies that contain greater coverage than that required by statute. It certainly does not require insurance companies to provide coverage greater than that mandated by statute. Nor does it display a legislative intention to change the public policy embodied in the statutorily mandated minimum liability coverage requirements.
* * *
As we noted previously, the purpose of the Maryland compulsory insurance statutes is to "`[assure] recovery for innocent victims of motor vehicle accidents.'" Despite the allure of the idea of total compensation for any innocent victim of a motor vehicle accident, there is no indication that the General Assembly's purpose in enacting the compulsory insurance statutes was to assure complete insurance recovery for all victims. As we stated in State Farm, we "do not view that purpose as extending beyond the prescribed statutory minimum coverage, so far as the `household exclusion' is concerned. Clearly, if the General Assembly had intended something closer to complete insurance recovery for all victims, they would have said so or increased the mandatory minimum liability limits."[2]
*1185 Id. at 448-450, 849 A.2d 539 (citations and footnotes omitted).
As the Stearman Court pointed out, had the General Assembly intended uniform coverage beyond the statutory limit for all victims it could have enacted legislation requiring such coverage. For example, the statutory provisions regulating uninsured/underinsured motorist coverage require, unless otherwise waived, that "the amount of uninsured motorist coverage provided under a private passenger motor vehicle liability insurance policy shall equal the amount of liability coverage provided under the policy." Ins. § 19-509(e)(2).
Conversely, the Stearman Court stated that, effective January 1, 2005, an insurer is required to offer a named insured under an automobile liability policy coverage for claims by a family member in the same amount as claims by non-family members. Stearman, 381 Md. at 456 n. 15, 849 A.2d 539 (citing 2004 Md. Laws, Chap. 127). Requiring only the offer of such coverage indicates that the General Assembly had considered the issue, but concluded that mandatory insurance coverage above the statutory minimum for all victims was not necessarily in the public's interest and carried a potentially harmful financial impact in the form of increased insurance premiums. To adopt the position advocated by the claimant, the Stearman Court concluded it would be usurping the responsibilities uniquely delegated to the legislative branch. Id. at 454, 849 A.2d 539.
This Court first considered the validity of a fellow employee exclusion in Larimore v. American Ins. Co., 69 Md.App. 631, 519 A.2d 743 (1987) ("Larimore I"). The automobile policy provision in that case excluded all coverage for injuries sustained by a worker during the course of employment that resulted from the negligent operation of a covered motor vehicle by a fellow employee. There was not, as there is in this case, a contractual exception for the legislatively mandated $20,000/$40,000 minimum liability coverage. Id. at 638, 519 A.2d 743.
We stated in Larimore that the public policy behind mandatory minimum liability coverage was not "protection for the negligent user or operator of an automobile," but instead, "the compensation of injured victims of automobile accidents." Id. at 644-45, 519 A.2d 743. We concluded that compensation for the injured victims of automobile accidents who are injured in the course of their employment by a fellow employee's negligent operation of a motor vehicle was guaranteed, "without litigating any issue of fault, [by] worker's compensation benefits that may exceed the statutorily required $20,000 minimum motor vehicle liability coverage." Id. at 638-39, 519 A.2d 743. Because those excluded under the policy exclusion were guaranteed an alternate means of recovery for injuries, we held that the fellow employee provision did not contravene public policy or Section 17 of the Transportation Article. Id.
The Court of Appeals reversed that decision in Larimore v. American Ins. Co., 314 Md. 617, 552 A.2d 889 (1989) ("Larimore II"). The Court took issue with this Court's conclusion that a fellow employee would be guaranteed collateral source payments. It pointed out that, in some instances, the injured employee may be unable to recover "workers' compensation equal to his actual tort damages up to $20,000." Id. at 623, 552 A.2d 889. Moreover, the exclusion provision did not provide for a set-off against workers' compensation benefits, but excluded motor vehicle liability coverage to fellow employees altogether. Id. at 623-24, 552 A.2d 889.
*1186 Because "Maryland workers' compensation law permits a worker, injured in the course of employment, to maintain a tort cause of action against a fellow employee whose negligence caused the injury, even though the injured worker may be entitled to or has collected workers' compensation benefits," the Court reasoned that validation of "the fellow employee exclusion in motor vehicle insurance policies could result in a large class of claimants being without liability insurance coverage and in a large class of uninsured motorists." Id. at 624-25, 552 A.2d 889. Finally, the Court recognized that, although a number of foreign jurisdictions had upheld fellow employee exclusions from automobile policies, those jurisdictions either did not maintain compulsory liability insurance statutes, had statutes that specifically provided for the exclusion, or had enacted workers' compensation laws that precluded a fellow employee from instituting a tort action. Id. at 625-26, 552 A.2d 889.
Unlike the fellow employee provision in Larimore, the fellow employee exclusion in this case expressly provides for liability coverage up to the statutory minimum. Therefore, Nationwide contends that the policy exclusion more closely resembles the policies at issue in State Farm and Stearman, which provided for reduced liability coverage to the statutory minimum for certain categories of individuals.
Citing West American Ins. Co. v. Popa, 352 Md. 455, 723 A.2d 1 (1998), Wilson contends that permitting an insurer to exclude certain individuals from full policy coverage will have the effect of depriving insureds of the value of their premiums. In Popa, the policy excluded vehicles "[o]wned or operated by a self-insurer under any applicable motor vehicle law" or "[o]wned by any governmental unit or agency" as uninsured/underinsured vehicles. Id. at 474, 723 A.2d 1. The insurer argued that the estate of the insured killed in an accident could not recover uninsured/underinsured motorist benefits because the vehicle at fault was a State police car. The Court of Appeals considered the insurer's argument that an invalid policy exclusion is invalid per se only to the statutory minimum level of coverage. Judge Eldridge, writing for the Court, stated:
Adoption of the broad proposition advanced by [the insurer] would permit insurers to load up motor vehicle insurance policies with a multitude of invalid exclusions, thereby limiting coverage in numerous situations to the statutory minimums instead of the stated coverage limits set forth on the insured's declaration page. For example, an insured could purchase what he believed was $300,000 liability insurance, pay a premium for $300,000 liability insurance, and, after an accident, discover that he has only $20,000/$40,000 liability insurance because the circumstances fell within one or more of the many invalid exclusions or exceptions in the insurance policy. Persons who paid much more in insurance premiums for coverage in excess of minimums could, in many circumstances, receive no more than those who only paid for minimum coverage. Consequently, we decline to extend the holding of State Farm v. Nationwide... beyond the household exclusion clause which was involved in that case.
Id. at 477, 723 A.2d 1 (emphasis added).
The Popa Court reasoned that Maryland law requires every automobile liability policy to contain uninsured/underinsured motorist coverage and permits such coverage to be excluded only in two circumstances. One is when the insured or a family member of the insured is injured by an uninsured vehicle owned by the insured or an immediate family member. The second *1187 is when the named insured, a family member, or another person with other applicable insurance is injured by an insured vehicle operated or used by a person specifically excluded from coverage under the policy. The exclusion of a police car as an uninsured/underinsured vehicle was not within the statutory framework and therefore was an invalid exclusion. Id. at 474-76, 723 A.2d 1.
In discussing State Farm, the Popa Court indicated that it had not extended its reasoning in that case to any exclusion other than the household exclusion. It acknowledged that the issue of "whether, if an exclusion was void, the liability carrier was liable up to the stated policy limits or only to the extent of the statutorily required minimum" was not before the Court in Larimore II.[3]Id. at 476, 723 A.2d 1. The Court went on to explain that, in the absence of a waiver by the insured, the insurer was required by law to provide uniform uninsured/underinsured coverage equal to the liability coverage, and therefore, Popa was a "particularly inappropriate" case in which to apply the reasoning of State Farm. Id. at 478, 723 A.2d 1.
In declining to extend the holding in State Farm, the Court was obviously concerned that, after an accident, the purchaser of a policy could unexpectedly find that the coverage amount set-forth on the declaration page of the policy was limited to the statutory minimum. Id. at 477, 723 A.2d 1. Concern for the purchaser of a policy would have special relevance in the case of uninsured/underinsured coverage, which an insured purchases for his or her own protection, rather than to satisfy a statutory minimum coverage requirement.
Recently, in Zelinski v. Townsend, 163 Md.App. 211, 878 A.2d 623 (2005), cert. granted, Harleysville Mut. v. Zelinski, 389 Md. 398, 885 A.2d 823 (2005), this Court considered whether a named driver exclusion in a commercial policy was valid. The Zelinskis were injured when their vehicle was struck by a truck driven by Robert Townsend, an employee of Mac's Septic Service. After the Zelinskis obtained judgments against Townsend, they filed for a writ of garnishment directed to the Harleysville Mutual Insurance Company, which insured Mac's Septic Service under a commercial motor vehicle policy. The policy was amended in September 2000 to exclude Townsend as a covered driver after his license was suspended. Id. at 214, 878 A.2d 623. The circuit court determined that the named driver exclusion controlled and dismissed the writ of garnishment against Harleysville Mutual.
On appeal, the Zelinskis asserted that a named driver exclusion in the commercial policy was invalid in light of the legislative history of the named driver exclusion as codified at Ins. § 27-606. In 1989, the General Assembly repealed and reenacted the named driver exclusion, but limited its application to "automobile insurance polic[ies] issued in the State to a resident of a household, under which more than one individual is insured." Zelinski, 163 Md. App. at 216, 878 A.2d 623 (quoting 1989 House Bill 62, codified as, Ins. § 27-606(a)). We agreed and held that the named driver exclusion in the commercial motor vehicle policy was void, and remanded the case for a determination of the amount of coverage under the policy.
We explained that "Maryland law `certainly does not require insurance companies to provide for coverage greater than that mandated by statute.'" Id. at 217, 878 *1188 A.2d 623 (quoting Stearman, 381 Md. at 448, 849 A.2d 539). We acknowledged that the Court of Appeals has said that not all exclusions in an automobile policy are invalid only to the extent of the statutory minimum, but concluded that the named driver exclusion in Zelinski could limit the carrier's liability to the statutory minimum coverage, far less than the full policy amount, if the policy exclusion was "(1) accompanied by a reduction in premiums, or (2) issued at the request of the insured to avoid an increase in premiums." Id. at 218, 878 A.2d 623.
A review of the case law leads us to the conclusion that the fellow employee exclusion in this case is valid. We explain.
Transportation § 17-103(b)(1) generally requires "a vehicle liability insurance policy written by an insurer authorized to write these policies in this State" as a minimum security for the "payment of claims for bodily injury or death arising from an accident of up to $20,000 for any one person and up to $40,000 for any two or more persons, in addition to interest and costs." The only "vehicles or drivers" exempted from coverage are farm or "special mobile" equipment and vehicles "operated on a highway only to cross the highway from one property to another." Trans. § 17-102. Clearly then, it is the public policy of this State, as reflected in this legislation, that security for bodily and death claims be provided for all other motor vehicles in the form of liability coverage in the minimum amounts of $20,000 for one person and $40,000 for two or more persons. Therefore, an insurance policy provision that would exclude a non-exempted vehicle and its driver from the minimum required coverage is invalid because it violates the public policy effectuated by statute.
On the other hand, as the Court of Appeals recognized in State Farm, the statute creates a floor, and not a ceiling, and generally a contractual provision that conflicts with a public policy is only invalid to the extent of the conflict between the public policy and the provision. Accordingly, in State Farm, the Court concluded that the household exclusion was only invalid to the extent it denied mandatory minimum coverage. 307 Md. at 636-37, 516 A.2d 586.
The fellow employee exclusion in Larimore II made no exception for the legislatively mandated $20,000/$40,000 coverage. Contrary to public policy, that exclusion created both a large class of uninsured vehicles and a large number of claimants without liability coverage. But, as the Court of Appeals reiterated in Popa, the issue of whether a fellow employee exclusion is valid beyond the required minimum security was not before the court in Larimore II.
To be sure, household exclusions and fellow employee exclusions address different concerns. But, when we read Popa in the light of the more recent discussion of policy exclusions by the Court of Appeals in Stearman, we are persuaded that there is no logical reason not to extend State Farm to a fellow employee exclusion in an automobile policy that expressly provides mandatory minimum coverage for the insured's vehicles and the drivers of those vehicles as required by law.
In Maryland, insurance policies are generally governed by the law of contracts. Mesmer v. Md. Auto. Ins. Fund, 353 Md. 241, 252, 725 A.2d 1053 (1999). Our courts have repeatedly said that, "`"[a]n insurance contract,"' ... `"like any other contract, is measured by its terms unless as statute, a regulation, or public policy is violated thereby."'" Prince George's County v. Local Gov't Ins. Trust, 159 Md. App. 471, 479, 859 A.2d 353 (2004) (quoting *1189 Chantel Assocs. v. Mt. Vernon Fire Ins. Co., 338 Md. 131, 142, 656 A.2d 779 (1995)). The fellow employee exclusion in the Auto Policy does not violate a statute, regulation, or public policy because the policy expressly provides for the minimum coverage mandated by the statute. Moreover, as we reasoned in Matta v. Government Employees Ins. Co., 119 Md.App. 334, 705 A.2d 29 (1998), "An insurance company that contracts to underwrite specific coverage `should not subsequently be expected to assume liability for a risk which it expressly excluded.'" Id. at 348, 705 A.2d 29 (quoting Parker v. State Farm Mut. Auto. Ins. Co., 263 Md. 206, 216, 282 A.2d 503 (1971)). See also Walther v. Allstate Insurance Co., 83 Md.App. 405, 411, 575 A.2d 339 (1990) ("Insurers have a right to limit their liability and to impose whatever condition they please in the policy so long as neither the limitation on liability nor the condition contravenes a statutory inhibition or the State's public policy.").
A fellow employee exclusion in a commercial automobile liability policy that provides coverage only "up to the minimum limit specified by the Maryland Vehicle Law" recognizes an employer's statutory duty to also insure employees under workers' compensation insurance for injuries sustained in the course of employment by a fellow employee's negligent operation of a vehicle. As a result of the exclusion, the employer can minimize the costs associated with providing for coverage under two separate policies, while, at the same time, provide a claimant with the statutorily mandated automobile liability coverage in addition to any workers' compensation benefits.
In this case, Allegheny, presumably a sophisticated business entity capable of understanding the terms of its contract with Nationwide, purchased both the Auto Policy and the Workers' Compensation Policy at the same time. The fellow employee provision was part of the original policy for which the parties bargained. There is no reason to believe that the premium paid by Allegheny did not reflect the reduced coverage limit for fellow employee liability included in the Maryland Changes Endorsement.
JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLANT.
NOTES
[1] The court issued a memorandum opinion and a separate document, declaring that the fellow employee provision in the Auto Policy was invalid and that Nationwide had a duty to indemnify Allegheny and McFarland for any liability accruing to McFarland as a result of the June 20, 2002 accident. The document declaring the rights of the parties also ordered that Wilson's motion for summary judgment was granted. The court did not expressly deny Nationwide's counter-motion for summary judgment or address Allegheny's counter-motion for summary judgment.
In its counter-motion for summary judgment, Allegheny requested that the court declare that its sole liability to Wilson was under his workers' compensation claim. Allegheny did not, however, file a counterclaim for declaratory judgment. The counter-motion requested relief that was collateral to Wilson's pleading. See Master v. Master, 223 Md. 618, 626, 166 A.2d 251 (1960) (permitting the filing of "cross-bill[s] for declaratory judgment" and reasoning that "more than a prayer for declaratory relief is required in a pleading if the jurisdiction of the court to declare the rights and status is to be invoked"). The court's grant of Wilson's motion for summary judgment and its issuance of the declaratory judgment was an implied denial of the counter-motions for summary judgment and resolved the case. See Goldman, Skeen & Wadler, P.A. v. Cooper, Beckman & Tuerk, L.L.P., 122 Md.App. 29, 61, 712 A.2d 1 (1998) ("In a declaratory judgment action, it is the court's duty to declare the respective legal rights of the parties, and it need not follow that the judgment must correspond to either party's view of the case.").
Wilson also noted a cross-appeal from the denial of attorneys' fees. Wilson did not request attorneys' fees in his initial complaint for declaratory judgment or in his initial motion for summary judgment. It appears, from our review of the record, that the first pleading raising the issue of attorneys' fees was Nationwide's "Response to Plaintiff's Reply Memorandum to Defendant's Opposition to Motion for Summary Judgment and Counter-Motion for Summary Judgment and Request for Hearing." Wilson did not raise the issue of attorneys' fees in his brief or at oral argument. In any event, Wilson was not entitled to attorneys' fees as a claimant. See Nolt v. U.S. Fidelity & Guaranty, Co., 329 Md. 52, 67, 617 A.2d 578 (1993) ("`[T]he right of an insured to recover attorneys' fees in such a situation applies not only to the named insured of the policy but also to any person who is within the policy definition of an insured against whom a claim alleging a loss within the policy coverage has been filed.'") (quoting Bankers & Shippers Ins. Co. v. Electro Enters., Inc., 287 Md. 641, 648-49, 415 A.2d 278 (1980)). We are persuaded, therefore, that there is a final appealable judgment in the instant case.
[2] The Court noted, for example, that full compensation to all victims of automobile accidents is required under Delaware law. Id. at 450 n. 9, 849 A.2d 539 (citing Nationwide Gen. Ins. Co. v. Seeman, 702 A.2d 915, 918 (Del.1997)).
[3] The question was before the Court when certiorari was granted, but the appellant conceded at oral argument that, ordinarily, an insurer would be liable only for the minimum required coverage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263418/ | 24 Cal.App.4th 596 (1994)
29 Cal. Rptr.2d 654
In re BABY BOY L., A Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Plaintiff and Respondent,
v.
ANDREA L., Defendant and Appellant.
Docket No. B061491.
Court of Appeals of California, Second District, Division Three.
April 28, 1994.
*599 COUNSEL
Dorothy J. Kray for Defendant and Appellant.
De Witt W. Clinton, County Counsel, Leona R. Salazar and Joyce Aiello for Plaintiff and Respondent.
OPINION
CROSKEY, J.
Andrea L. appeals from the order of the juvenile court freeing her child, Baby Boy L., for adoption. The child, who was born on August 7, 1989, was adjudicated a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (g) on September 11, 1989.[1] On that same date, the child was removed from *600 Andrea's custody under section 361,[2] and reunification services were found not necessary under section 361.5, subdivision (b)(1).[3]
On July 15, 1991, Baby Boy L. was freed for adoption under section 366.26,[4] the court finding him adoptable by clear and convincing evidence *601 and having previously found by clear and convincing evidence that reunification services should not be provided.
We find no errors in the proceedings below and shall therefore affirm the order of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Andrea L. is the mother of Baby Boy L., who was born with a toxic condition indicating cocaine addiction, which could only have resulted from Andrea's use of cocaine during pregnancy. The baby was taken into protective custody at birth by the department of children's services (the Department). Andrea made one telephone call to the Department from the hospital where her baby was born, but she did not appear at the jurisdiction and dispositional hearing regarding the child on September 11, 1989, and her whereabouts were essentially unknown from that time until October of 1990.
Andrea was 14 years of age when her first child was born. Thereafter, she attempted unsuccessfully to finish school, but left home at the age of 17 and set up her own residence on welfare funds. She later married Larry F., lived with him for four years and had two children with him. At the time of Baby Boy L.'s conception and during the pendency of the proceedings below, Larry F. was incarcerated.
Andrea's two eldest children were cared for by their maternal grandmother. The third was cared for by their paternal grandmother, Larry F.'s mother. Neither grandparent could care for Baby Boy L., nor was any other relative available to care for him.
At the time of the six-month review hearing respecting Baby Boy L., Andrea's whereabouts remained unknown. The child, who had been in two placements, was doing well in his present foster home.
At the review hearing of October 22, 1990, Andrea appeared and requested reunification services. According to the social study, the child was *602 over a year old and was bonded to his foster parents, who wished to adopt him. He was receiving good physical and emotional care and was developing normally. The court informed Andrea that if she wished a contested hearing on the issue of instituting reunification, she would be required to file a petition under section 388.[5] Meanwhile, a "2-6," that is, a hearing under section 366.26 for the selection and implementation of a permanent plan, was scheduled for February 19, 1991.
On January 11, 1991, Andrea was arrested and jailed for sale of a controlled substance. She was scheduled for release on March 17. The section 366.26 hearing was continued to April 22, 1991. On April 22, Andrea did not appear for the hearing. She was ordered to participate in counseling for drug and alcohol abuse and to submit to random drug testing, and the matter was continued for a hearing under section 366.26 to October 21, 1991, a date which would have been beyond the last permissible date for such a hearing. Upon motion of the Department, the hearing was advanced to July 15, 1991. Andrea visited Baby Boy L. once, on June 4, 1991, and did not request further visits.
On July 15, 1991, Andrea appeared and presented to the court a letter from a counselor at Family Services of Long Beach. In the letter, the counselor attested that Andrea was enrolled in a drug counseling program and appeared sincere in her desire to become drug free. However, the counselor stated her attendance at counseling was imperfect, that she had missed two appointments for drug testing, and that he was unable as yet to render an assessment of her ability to provide a home for her child. Andrea addressed the court and asked for return of her child, as she was endeavoring to recover from drug dependency. The court expressed sympathy for Andrea's efforts, but found it was required by statute to free the child for adoption under the circumstances existing at the time of the hearing. The court then found the child adoptable and freed him for adoption. This timely appeal followed.
*603 CONTENTIONS ON APPEAL
Andrea contends that: (1) the court erred in failing to offer reunification services and failing to find by clear and convincing evidence that the parents' whereabouts remained unknown at the time of the six-month review; (2) she was deprived of due process by the court's failure to make findings by clear and convincing evidence at the time of the hearing under section 366.26 that at that time there continued to be a severe risk of detriment to the child if he were returned to Andrea's custody; (3) the court erred in failing to consider changed circumstances which existed at the time of the section 366.26 hearing; and (4) there was insufficient evidence to find by the clear and convincing standard that Baby Boy L. was adoptable.
DISCUSSION
1. The Court Below Complied With All Applicable Statutory Requirements in Referring the Minor for a Selection and Implementation Hearing Under Section 366.26.
a. Outline of Applicable Statutes and Rules.
In 1987, the Legislature extensively revised the statutory scheme governing juvenile dependency proceedings, particularly those proceedings which end in a termination of parental rights. (Stats. 1987, ch. 1485, p. 5598; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247 [19 Cal. Rptr.2d 698, 851 P.2d 1307] [Cynthia D.].) Under the current scheme, a child may be removed from his or her parents' or guardians' custody if a peace officer, probation officer or social worker has reason to believe the child falls within the definitions of a "dependent child" set forth in section 300. (§§ 305, 306; Cynthia D., supra, 5 Cal.4th at pp. 247-248.) A petition to have such a child declared a dependent child of the court must be filed within 48 hours, excluding nonjudicial days (§ 313; Cal. Rules of Court, rule 1440(d)), and if the child is detained outside the parents' home, a hearing on the petition must be held within 15 judicial days. (§ 334; Cal. Rules of Court, rule 1447(b).) At this hearing, the court determines whether the child comes within its jurisdiction. Jurisdictional findings must be made by a preponderance of the evidence. (§ 355; Cal. Rules of Court, rule 1450(f).)
If the court finds jurisdiction under section 300, it then holds a dispositional hearing (§ 358; Cal. Rules of Court, rules 1450(g), 1455), at which the court determines whether the child may be returned to his parent or must be removed under section 361, subdivision (b). The standard of proof for removal from a custodial parent is clear and convincing evidence. (§ 361, *604 subd. (b); Cal. Rules of Court, rule 1456(c).) If the child is removed under section 361, the court under most circumstances must make orders for reunification services. (§ 361.5.) However, under certain specified circumstances, including where the court finds by clear and convincing evidence that the parents' whereabouts are unknown, reunification services need not be provided. (§ 361.5, subd. (b)(1).)[6]
After the dispositional hearing, the court must review the case at least once every six months. (§ 366.) At these review hearings, in the usual case, there is a statutory presumption that the child will be returned to parental custody, unless the department of social services establishes by a preponderance of the evidence that return would create a risk of detriment to the child's physical or emotional health. If the child is not returned to parental custody at the first six-month review, the court must order the continuation of reunification services and order any additional services that appear reasonably necessary (§ 366.21, subds. (e), (f); § 366.22, subd. (a).) However, these requirements do not apply where, as here, the court has ordered that reunification services shall not be provided. (§ 366.21, subd. (e), ¶ 1.)
Where reunification services were not ordered because the parents' whereabouts were unknown, and the child was declared a dependent under section 300, subdivision (g) (minor left without provision for his or her support, and parent is incarcerated, or his or her whereabouts are unknown), and the court finds by clear and convincing evidence that the parents' whereabouts are still unknown, or the parents have failed to contact or visit the child, the court may schedule a hearing under section 366.26 to select and implement a permanent plan for the child within 120 days of the first 6-month review hearing. (§ 366.21, subd. (e), ¶ 2.) In all cases, a hearing under section 366.26 must be scheduled within 18 months of the date the child was originally removed from the parents' physical custody. (§ 366.21, subd. (g)(1); § 366.22, subd. (a), ¶ 2.)
Finally, at the hearing under section 366.26, the court must free the child for adoption if: (1) it determines by clear and convincing evidence that the *605 child is adoptable, and (2) there has been a previous determination that reunification services should not be offered or that the child should not be returned to the parent, and (3) the court does not find that the child would benefit from continued contact with the parents (§ 366.26, subd. (c)(1)(A)) or other specified circumstances. (§ 366.26., subd. (c)(1).)[7]
b. Application of the Statutes in This Case.
The mother's contention that the court in this case failed to comply with the above statutory requirements for ordering a hearing under section 366.26 is simply mistaken. (1) First, the court found by clear and convincing evidence at the combined jurisdiction and dispositional hearing that the mother's and father's whereabouts were unknown. Andrea contends the social study prepared for that date did not contain anything excepting her from the requirement of reunification services. However, the report plainly indicated the parents' whereabouts were unknown. At the hearing, the Department's representative filed a "due diligence" declaration as to each parent, as required by section 361.5, subdivision (b)(1) before reunification services may be denied on grounds that the parents' whereabouts are unknown. Based upon the due diligence declarations, the court found the whereabouts of both parents were unknown. Having so found by clear, convincing, and essentially undisputed evidence, the court was not required to order reunification services. (§ 361.5, subd. (b)(1).)
(2) Nor did the court err at the time of the first six-month review by failing to make an express finding that the parents' whereabouts remained unknown. If such a finding is made, a hearing under section 366.26 may be scheduled within 120 days. However, the court in this case did not purport to schedule such a hearing within 120 days, so the failure to make findings regarding the parents' whereabouts had no effect.
(3) At the hearing under section 366.26, the court found by clear and convincing evidence that the child was adoptable. That finding, together *606 with the court's previous finding at the jurisdiction and dispositional hearing that the parents' whereabouts were unknown and reunification services were therefore not required, was all that was required in order to free the child for adoption. (§ 366.26, subd. (c)(1).)
2. California's Statutory Scheme for Freeing Dependent Children of the Juvenile Court for Adoption Is Constitutional.
During the pendency of this appeal, the California Supreme Court determined that the procedures provided in section 366.26 for the termination of parental rights comply with constitutional requirements of due process. (Cynthia D., supra, 5 Cal.4th at p. 256.) That determination was allowed to stand by the United States Supreme Court by a denial of certiorari in the case on March 7, 1994. (Dobles v. San Diego Department of Social Services (1994) ___ U.S. ___ [127 L.Ed.2d 567, 114 S.Ct. 1221].)
(4) Both the California and United States high courts long ago determined that due process is violated if a parent's rights to the care and custody of his or her child are terminated upon findings by anything less than clear and convincing evidence that the parent cannot or will not provide a loving and stable home for the child. (Santosky v. Kramer 1982) 455 U.S. 745, 769-770 [71 L.Ed.2d 599, 616-617, 102 S.Ct. 1388]; In re Angelia P. (1981) 28 Cal.3d 908, 919 [171 Cal. Rptr. 637, 623 P.2d 198].) In Cynthia D., supra, the California Supreme Court concluded the statutory scheme provided by sections 361 through 366.26 satisfies the requirements of due process, although the only matter required to be found by clear and convincing evidence at the termination hearing is that the minor is adoptable. (5 Cal.4th at pp. 253-256.)
This is true, the Supreme Court explained, because numerous hearings precede the one at which termination may be ordered, and at each such hearing, conditions calling for termination must have been found to exist, or the case never proceeds as far as a hearing on termination. (Cynthia D., supra, 5 Cal.4th at p. 253.) At the hearing in which a child is originally ordered removed from parental custody, the court is required to make findings by clear and convincing evidence that removal is necessary to avoid substantial danger to the child's physical or emotional health. (§ 361, subd. (b).) At subsequent hearings, the court must return the child to the parents' custody unless it is found by a preponderance of the evidence that return would create a substantial risk of detriment to the child's physical or emotional health. (§ 366.21, subds. (e), (f); § 366.22, subd. (a).)
*607 For this reason, the high court concluded the three factors which the United States Supreme Court, in Santosky v. Kramer, supra, 455 U.S. 745, relied upon to require an elevated standard of proof for termination are satisfied by the statutory scheme considered as a whole. (Cynthia D., supra, 5 Cal.4th at p. 253.) "By the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer `reason to believe that positive, nurturing parent-child relationships exist' [citations], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished. At this point ..., it has become clear `that the natural parent cannot or will not provide a normal home for the child' [Citation], and the state's interest in finding a permanent alternate home is fully realized. In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness, let alone evidence that meets an elevated standard of proof." (Id. at p. 256.)
It bears emphasis that the juvenile court in this case found by clear and convincing evidence at the first hearing that this child's parents had, in effect, abandoned him, and also found by the same standard that, even if the parents could be found, return of the baby to their custody would create a substantial danger to his physical or emotional well-being. Nearly two years later, after Andrea had visited the baby only once in that time and had failed to demonstrate any real change in her ability or willingness to be a mother to him, the court found by clear and convincing evidence that he was adoptable. No more was required by the applicable statutes or by the Constitution to justify freeing him for adoption.
3. The Court Based Its Order Freeing the Minor for Adoption Upon Appropriate Circumstances.
(5) Neither section 366.26 nor the Constitution required the court to consider Andrea's present circumstances at the time of the hearing under section 366.26 before ordering the child freed for adoption. The court was only required to consider whether the child was adoptable. (§ 366.26., subd. (c)(1); In re Marilyn H. (1993) 5 Cal.4th 295, 304, 310 [19 Cal. Rptr.2d 544, 851 P.2d 826].) After the court has removed a child from parental custody and determined that a permanent plan is appropriate, the court need not make those determinations again unless the parent presents evidence, pursuant to section 388, that her circumstances have changed sufficiently to justify a *608 change in the court's orders. (5 Cal.4th at p. 309; In re Heather P. (1989) 209 Cal. App.3d 886, 891-892 [257 Cal. Rptr. 545].)
Here, at the hearing of October 22, 1990, at which the court first scheduled a hearing under section 366.26, Andrea made her first appearance in the proceedings and requested reunification services. At that time, the child was 14 months of age. When the court informed Andrea that the only way the issue of reunification could be revisited would be through a petition under section 388, Andrea's attorney stated that a petition under section 388 would be filed. However, it does not appear from the record that such a petition was ever filed.
Nevertheless, the record suggests the court gave Andrea ample opportunity to establish a change of circumstances. A hearing under section 366.26 was not in fact held on February 19, 1991. Andrea was in jail on that date. Proceedings were continued to April 22, 1991, for a hearing under section 366.26. Andrea was released from jail on March 11. The minute order for April 22, 1991, shows that the court again made no orders under section 366.26. Instead, the court ordered Andrea to participate in counseling for alcohol and drug abuse and submit to drug testing, and continued proceedings to October 21, 1991, for a hearing under section 366.26.[8] On May 20, the hearing was advanced to July 15, 1991, essentially the latest permissible date for such a hearing. (§ 366.21, subd. (g).)
At the hearing on July 15, 1991, Andrea's attorney represented to the court that Andrea was participating in drug counseling and had brought letters to that effect from her counselor. Counsel also represented that Andrea's drug tests had all been negative.
The court asked the Department's attorney to respond to Andrea's argument that she was rehabilitating herself from drug dependency. Counsel responded that these efforts were "too little too late." In addition, the Department's attorney represented to the court that Andrea had never furnished proof of clean drug tests to the Department. Andrea's attorney stated she could provide the tests to the court, but she evidently did not have test *609 results with her at the hearing. Andrea herself made the following statement to the court: "I would like to have a chance to have my baby because I was once on drugs, but now I am trying to get my life back together."
After consulting the Welfare and Institutions Code, the court stated, "I have some sympathy for the mother's recent attempt, but the juvenile court law as I regard it is clear in this situation that if the parent has not maintained regular visitation and contact and the minor is adoptable, then I am directed by the code to terminate the parental rights." The court then ordered the child freed for adoption.
The court's ruling was correct. When a child has been removed from parental custody under section 361.5, and the court has determined that reunification services need not be offered or should be terminated, the Supreme Court has held it is not unduly burdensome to shift the burden to the parent to file a petition based upon changed circumstances, in order to have the child returned. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Such a petition may be filed at any time before the section 366.26 hearing, and the parent need only make a prima facie showing of changed circumstances to trigger the right to a full hearing. (5 Cal.4th at p. 310; In re Jeremy W. (1992) 3 Cal. App.4th 1407, 1413-1414 [5 Cal. Rptr.2d 148].) However, the court is not required to entertain an oral motion under section 388 at the time set for the 366.26 hearing. If there were such a requirement, the Supreme Court has determined, "... there would be nothing to preclude a parent from appearing at a section 366.26 hearing and, without prior notice to the court and other parties, assert a meritless claim of changed circumstances necessitating a delay of the hearing to allow the court to determine whether there is sufficient evidence to hold a hearing on the issue and to allow the other parties time to respond. After resolution of the issue raised, another such claim conceivably could be raised at the next section 366.26 hearing. This could result in lengthy and unnecessary delay in providing permanency for children, the very evil the Legislature intended to correct." (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
A parent's rights to the care and companionship of her child are, of course, compelling. But the child's rights to a stable and loving family are equally compelling, and in any decision regarding the child's custody, the two must be balanced. The balance between the parent's and the child's rights shifts after the child has been removed from the parent's home for a substantial time, owing to abuse or neglect by the parent, and the parent has failed to correct the problems which led to the removal. (In re Marilyn H., supra, 5 Cal.4th at p. 307.) Accordingly, under California law, after reunification services are terminated in a dependency proceeding, the focus of the *610 court's concern shifts from assisting the parent in reunification with the child to securing a stable new home for the child. (Ibid.)
By the time of the 366.26 hearing in this case, Baby Boy L. was nearly two years of age and had been removed from Andrea's custody for well over eighteen months. This is not a case in which the record suggests that the mother's circumstances had changed for the better, and yet the court refused to receive evidence of the improvement. Quite the contrary. The mother remained entirely out of the picture for the first 13 months of the proceedings the first 14 months of the child's life. Only then did she appear, requesting reunification. Three months later, she was in jail and remained there until approximately the latest time allowed for any continuation of reunification efforts. Three months after that, at the eleventh hour and the fifty-ninth minute, she offered a bare scintilla of proof that she was beginning to rehabilitate. But "[c]hildhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) A mere prima facie showing of changing we hesitate to say, "changed" circumstances was not enough to require or justify a hearing on return of the child to her after two years. (Ibid.)
4. There Is Sufficient Evidence the Minor Is Adoptable.
(6) Finally, there is no merit to Andrea's contention that there was insufficient evidence that the child was adoptable. We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. (In re Jason L. (1990) 222 Cal. App.3d 1206, 1214 [272 Cal. Rptr. 316]; In re Amos L. (1981) 124 Cal. App.3d 1031, 1038 [177 Cal. Rptr. 783].) The evidence in this case was sufficient to support the required findings.
In a psychological evaluation performed in February of 1991, the child was found normal and "a good candidate for adoption." The social worker's report filed on July 15, 1991, states he was still "highly adoptable" at that time. At the July 15 hearing the Department's attorney represented to the court that the child was "an adorable little boy who is adoptable." Counsel also noted that the child had none of the characteristics listed in section 366.26 as justifying a finding that a child would be difficult to place for *611 adoption.[9] Indeed, it appeared the sole circumstance directly relating to the child himself which impeded adoption was the fact that the child had not been freed. The Department's attorney represented that the child's foster parents, who initially asked to adopt him, withdrew their request because the foster mother became pregnant. A second adoptive placement failed, because the family did not wish to become emotionally attached to a child who had not been freed for adoption.
Sufficient evidence before the court thus justified the findings by clear and convincing evidence that the child was not only adoptable, but in urgent need of an order freeing him for adoption at the earliest possible moment.
5. The Law No Longer Tolerates Delay in Proceedings for the Securing of Permanent and Stable Homes for Dependent Children.
"Baby Boy" L. is now nearly five years of age and has still not been freed to be adopted into a family he can count on to care for him forever. Although not commented upon by the parties, we cannot help observing that neither this child's need for a permanent home, nor the Legislature's intent of avoiding delays in dependency proceedings has been furthered at any point in this case. After several delays in the juvenile court, there have been several more on appeal.
Although appeals in dependency cases are required to be given priority over all other appeals (§ 395), this appeal has been pending for two and a half years longer than the case was pending in the trial court. Counsel was appointed on November 27, 1991, but did not receive the record on appeal until February 1, 1992. On May 27, 1992, the first of three successive requests to augment the record was filed, and was thereafter granted. Interspersed among the augmentation requests were five requests for extensions of time to file appellant's opening brief.
Appellant's opening brief was filed on May 27, 1993. One request for an extension of time to file respondent's brief was filed and granted, and *612 respondent's brief was filed on August 6, 1993. The case was not calendared for oral argument until eight months later, on April 20, 1994.
New rule 39.1A of the Rules of Court, effective January 1, 1994, provides for means of avoiding the kinds of delay which have occurred in this case. The rule, which is experimental and expires January 1, 1996, includes several streamlining procedures, including the following provisions: Review by extraordinary writ of orders terminating parental rights is encouraged. Where such review is sought, the rule provides that an appeal will be deemed an inadequate remedy. (Rule 39.1A(b).) The preparation and delivery to counsel of the appellate record in such proceedings is required to be expedited, and the covers of transcripts are required to bear the conspicuous notation, "Appeal from order terminating parental rights," with the code section under which rights were terminated identified. (Rule 39.1A(c).) Preparation of augmentations in such proceedings is given "highest priority." In particular, an appellant's request to augment the record must be filed within 15 days after counsel receives the original record; a respondent's augmentation request must be filed within 15 days of the filing of the appellant's opening brief; if possible, the request for augmentation should include copies of the requested documents. (Rule 39.1A(d).) The courts are required to adopt procedures to expedite the processing of appeals in parental rights termination cases, and the clerks of the courts are required to provide data to the Judicial Council to assist in evaluating the efficacy of the new rule. (Rule 39.1A(e).) A schedule for briefing and argument is prescribed, which permits determination of such cases within 250 days. In particular, the appellant's opening brief must be filed within 30 days after the record is filed in the reviewing court; the respondent's brief must be filed 30 days thereafter, and the minor's brief and the appellant's reply brief, within the next 20 days. (Rule 39.1A(f).) Arguments must be held no later than 60 days after the filing, or due date, of the last brief filed. If oral argument is waived the case will be deemed submitted 60 days after the last brief is filed, or due to be filed. (Rule 39.1A(g).) Extensions of time to prepare the record or file briefs may be granted only upon "an exceptional showing of good cause," and may be granted only by the reviewing court. (Rule 39.1A(h).)
To assure that no child who needs and deserves a permanent home misses the chance to have one, this court will rigorously comply with rule 39.1A of the California Rules of Court. In addition, at oral argument, counsel for the county inquired how his office might assist in expediting dependency appeals. At the very least, the county should carefully review all requests by appellants for extensions of time to file briefs, oppose such requests where *613 appropriate, citing rule 39.1A(h), and avoid requests of its own for extensions of time except in the most compelling circumstances.
DISPOSITION
The order of July 15, 1991, freeing Baby Boy L. for adoption is affirmed.
Klein, P.J., and Kitching, J., concurred.
NOTES
[1] Unless otherwise noted, further statutory references are to the Welfare and Institutions Code.
Section 300 provides in pertinent part as follows: "Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] ... [¶] (b) The minor has suffered ... serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the minor, or ... by the inability of the parent or guardian to provide regular care for the minor due to the parent's or guardian's ... substance abuse.... [¶] ... [¶] (g) The minor has been left without any provision for support ..., the whereabouts of the parent is unknown, and reasonable efforts to locate the parent have been unsuccessful."
[2] Section 361 provides in pertinent part as follows: "(a) In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all such limitations.... [¶] (b) No dependent child shall be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following: [¶] (1) There is a substantial danger to the physical health of the minor or would be if the minor was returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents' or guardians' physical custody.... [¶] ... [¶] (5) The minor has been left without any provision for his or her support, ... and the whereabouts of the parent is unknown and reasonable efforts to locate him or her have been unsuccessful. [¶] (c) The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home or, if the minor is removed for one of the reasons stated in paragraph (5) of subdivision (b), whether it was reasonable under the circumstances not to make any such efforts. The court shall state the facts on which the decision to remove the minor is based."
[3] Section 361.5, subdivision (b) provides in pertinent part as follows: "(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] (1) That the whereabouts of the parent or guardian is unknown. A finding pursuant to this paragraph shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate the parent or guardian...."
[4] Section 366.26 provides in pertinent part as follows:
"(a) This section applies to minors who are adjudged dependent children of the juvenile court pursuant to subdivision (c) of Section 360 on or after January 1, 1989. The procedures specified herein are the exclusive procedures for conducting these hearings; ... [¶] (b) At the hearing, which shall be held in juvenile court for all minors who are dependents of the juvenile court, the court in order to provide stable, permanent homes for these minors, shall review the report as specified in Section 361.5, 366.21, or 366.22, shall indicate that the court has read and considered it, shall receive other evidence that the parties present, and then shall do one of the following: [¶] (1) Permanently sever the rights of the parent or parents and order that the child be placed for adoption. [¶] ... [¶] In choosing among the above alternatives the court shall proceed pursuant to subdivision (c). [¶] (c) At the hearing the court shall proceed pursuant to one of the following procedures: [¶] (1) The court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted. If the court so determines, the findings pursuant to subdivision (b) or paragraph 1 of subdivision (e) of Section 361.5 that reunification services shall not be offered or the findings pursuant to subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months or that the parent has been convicted of a felony indicating parental unfitness, or pursuant to Section 366.21 or 366.22 that a minor cannot or should not be returned to his or her parent or guardian, shall then constitute a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental to the minor due to one of the following circumstances: [¶] ... [¶] (2) The court shall not terminate parental rights if at each and every hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided. [¶] ... [¶] (i) If the court, by order or judgment declares the minor free from the custody of both parents ... the court shall at the same time order the minor referred to the State Department of Social Services or a licensed adoption agency for adoptive placement by the agency. However, no petition for adoption may be granted until the appellate rights of the natural parents have been exhausted...."
[5] Section 388 provides as follows: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstances or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction. [¶] If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Section 386, and in such instances as the means of giving notice is not prescribed by such sections, then by such means as the court prescribes."
[6] Other circumstances in which reunification services need not be provided are where the court finds by clear and convincing evidence that: the parent suffers from a mental disability that prevents him or her from utilizing such services (§ 361.5, subd. (b)(2); the minor was previously adjudicated a dependent child because of severe abuse, was removed from the parents' custody, later returned, and is again being removed for further abuse (§ 361.5, subd. (b)(3); the parent has been convicted of causing the death of another child through abuse or neglect (§ 361.5, subd. (b)(4); the minor was declared a dependent under section 300, subd. (e) because of severe physical abuse caused by conduct of the parent (§ 361.5, subd. (b)(5)); the minor was declared a dependent because of severe abuse inflicted by the parent, and the court finds reunification services would not benefit the child. (§ 361.5, subd. (b)(6)).
[7] Circumstances in which the court should not free for adoption an adoptable child who has been removed from parental custody and cannot or should not be returned are: (1) as above, where the child would benefit from continued contact with the parents, and they have maintained regular visitation with him or her (§ 361, subd. (c)(1)(A)); (2) a child 12 years of age or older objects to termination of parental rights (§ 366.26, subd. (c)(1)(B)); (3) the child is in a residential treatment facility, and adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent home if the parents cannot resume custody when residential care is no longer needed (§ 366.26., subd. (c)(1)(C)); (4) the child is living with a relative who cannot adopt the child but is willing to accept legal responsibility for him or her, and removal of the child from that relative's custody would be detrimental to the child. (§ 366.26, subd. (c)(1)(D).)
[8] Andrea does not contend, and we do not find, that the court's order for drug and alcohol counseling, made on April 22, 1991, constituted a de facto order for reunification services. The order was apparently made at a hearing respecting Andrea's two older children, as well as Baby Boy L. It is thus reasonably likely the order was for purposes of reunification with those children. Such an order would be improper respecting Baby Boy L., as the statutory time limit for reunification passed in mid-March of 1991, and a section 366.26 hearing was mandatory within 120 days, or 4 months, of that time.
[9] Section 366.26, subdivision (c)(3) provides that if the court finds termination would not be detrimental to the minor, and the minor has a probability of being adopted, but is difficult to place for adoption, adoption may be identified as the permanent plan, but termination of parental rights may be delayed for 90 days for intensive efforts to secure an adoptive placement. That subdivision provides that a child may be found difficult to place only if there is no identified or available placement because of the child's (1) membership in a sibling group, or (2) diagnosed medical, physical or mental handicap, or (3) age of seven or more. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263429/ | 142 F.Supp. 1 (1956)
Everett G. RANK et al., Plaintiffs,
v.
(KRUG) UNITED STATES of America, et al., Defendants.
The STATE OF CALIFORNIA, Complainant in Intervention,
v.
Everett G. RANK et al., Defendants in Intervention.
The CITY OF FRESNO, a Municipal Corporation, Complainant in Intervention,
v.
UNITED STATES of America et al., Defendants in Intervention.
TRANQUILLITY IRRIGATION DISTRICT, a Public Corporation, Complainant in Intervention,
v.
UNITED STATES of America et al., Defendants in Intervention.
CITY OF FRESNO, a Municipal Corporation, et al., Petitioners,
v.
A. D. EDMONSTON, as State Engineer of the State of California, etc., et al., Respondents.
No. 685-ND.
United States District Court S. D. California, Northern Division.
February 7, 1956.
Supplemental Memorandum July 11, 1956.
*2 *3 *4 *5 *6 *7 *8 *9 *10 *11 *12 *13 *14 *15 *16 *17 *18 *19 *20 *21 *22 *23 *24 *25 *26 *27 *28 *29 *30 *31 *32 *33 *34 Claude L. Rowe, Fresno, Cal., for plaintiffs, and for Tranquillity Irr. Dist. plaintiffs in intervention.
Claude L. Rowe and Christian M. Ozias, Fresno, Cal., for City of Fresno.
Maddox & Abercrombie, James K. Abercrombie, Erling H. Kloster, Visalia, Cal., for various Irr. Dists.
LeRoy McCormick and John R. Locke, Jr., of Visalia, Cal., for various Irr. Dists.
Henry & Kuney, of Tulare, Cal., for various Irr. Dists.
*35 E. I. Feenister, Lindsay, Cal., for various Irr. Dists.
Green, Green & Plumley, Denslow Green, Madera, Cal., for Chowchilla Water Dist.
David E. Peckinpah, Fresno, Cal., and Harold M. Child, Selma, Cal., for Madera Irr. Dist.
J. O. Reavis, Delano, Cal., for Southern San Joaquin Municipal Utility Dist.
Edmund G. Brown, Atty. Gen., B. Abbott Goldberg, Deputy Atty. Gen., for State of California, plaintiff in intervention.
Edmund G. Brown, Atty. Gen., B. Abbott Goldberg, Deputy Atty. Gen., Henry Holsinger, Principal Atty., Division of Water Resources, State of California, Sacramento, Cal., for respondent State Officials in Ancillary Proceedings.
J. Lee Rankin, Asst. Atty. Gen., William H. Veeder, Sp. Asst. to Atty. Gen., for defendant officials and employees of the Bureau of Reclamation.
No appearance for United States.
Edson Abel, San Francisco, Cal., as amicus curiae in behalf of California Farm Bureau Federation.
INDEX BY TOPICS
Page
I. Preliminary statement .......................................... 36
II. General geographical & physical features ....................... 39
III. History of litigation .......................................... 49
IV. The parties .................................................... 53
V. The pleadings .................................................. 54
VI. Jurisdiction of (1) subject matter
(2) defendant officials
(3) defendant districts ........................ 62
VII. Jurisdiction of the State of California ........................ 66
VIII. Jurisdiction of the United States .............................. 69
IX. Default against United States .................................. 85
X. Eminent domain ................................................. 89
XI. Water rights under California law general .............. 104
XII. California water rights of plaintiffs .......................... 115
XIII. California water rights of defendants .......................... 116
(a) Purchase & exchange contracts ............................ 117
(b) Change of point of diversion ............................. 117
(c) Applications to appropriate held by the United States .... 121
(d) Prescription ............................................. 125
(e) Laches ................................................... 128
(f) Estoppel ................................................. 128
(g) Public use ............................................... 130
XIV. Watershed and county of origin statutes ........................ 149
XV. Class action ................................................... 154
XVI. Election of remedies Tucker Act ........................ 159
XVII. Inadequacy of remedy at law .................................... 160
XVIII. Physical solution & form of judgment ........................... 161
XIX. Injunctive relief against United States ........................ 175
XX. Tranquillity Irrigation District ............................... 176
XXI. City of Fresno ................................................. 178
(a) Complaint in intervention ................................. 178
(b) Ancillary proceedings ..................................... 178
*36 HALL, District Judge.
I.
Preliminary Statement.
This is a water rights case.
One phase or another of it has been considered in five reported opinions, viz.: Rank v. Krug, D.C., 90 F.Supp. 773, United States v. United States District Court, etc., 9 Cir., 206 F.2d 303, State of California v. United States District Court, etc., 9 Cir., 213 F.2d 818, Rank v. United States, D.C., 16 F.R.D. 310, and City of Fresno v. Edmonston, D.C., 131 F.Supp. 421.
In view of the number of cases considered by the court in this opinion, and the fact that many of them are cited to several propositions, and to alleviate the frustrating use of the conventional "supra" and "post," an alphabetical index of cases is attached as Appendix "A," page 187.
This opinion is long. There is repetition in it. But these things are necessitated in order to have a proper understanding of the numerous legal and factual matters involved, many of which are complex, and several are important questions of first impression.
In view of the contentions made by some of the defendants at various times throughout the trial and related proceedings, it is well to state at the outset, as a reminder to the parties that this court has neither the desire nor the power to question the wisdom of any of the applicable Acts of Congress or of the laws of the State of California relating to the Central Valley plan or project or any unit of it, and that this suit is but an invocation of the powers confided by the Constitution and laws to the judicial department of the government to interpret and apply the applicable law to the issues raised by the pleadings and the evidence. Such relief in the form of a judgment as may be found necessary is but the usual exercise of the judicial power, though it may thereby restrict the conduct of the government and its officers to that which is judicially determined to be lawful and within its or their respective powers. If government officials were the sole judges of their powers and their conduct, then the courts would not be necessary.
This is not a suit wherein the plaintiffs seek to establish for each of them their separate rights inter sese to a given quantity of water as between themselves or as against one another, but it is a suit to establish a common right to a common source of water. It is a type of suit familiar, for many years, to the arid West wherein parties seek the adjudication and enforcement by a court of equity of claimed common rights to the use of water, which rights are asserted to be interfered with or taken by the acts of the defendants contrary to applicable laws.
It is impossible to make any short and comprehensive statement of the issues. They will be dealt with in detail hereinafter.
Stated as simply as possible, the controversy may be described as follows: The plaintiffs do not seek to prevent the construction or operation of the Central Valley Plan or any unit or project thereof, but contend that the lawful operation of the Plan and units involved compels recognition and enforcement of their rights to water, as tested by applicable Federal and California laws. The defendants at one stage or another have recognized that the plaintiffs do have rights to water. The dispute throughout the trial has largely been over the extent and enforceability of those rights, the area having the San Joaquin river as its common source, the quantity of water required to fulfill those rights, and the most reasonable and economic method of doing so.
The plaintiffs and their class are riparian and overlying owners of land along the San Joaquin river and on its alluvial cone, below Friant dam and above Mendota Pool, 59 miles below Friant. They formerly had the full flow of the river in its natural channel to satisfy their direct and underground supply. *37 The average annual flow for the period 1897-1944 was 1,797,260 acre-feet,[1] and the average flow was at the rate of 2,463 second-feet[2] measured at Friant.
The government (as that term is used, it applies to the Bureau officials and the United States unless it otherwise appears in the context of the opinion hereinafter) by its submitted plan of physical solution proposes to release only a sufficient amount of water into the natural channel of the river as will produce a flow of five second-feet past the lowest downstream lands (in the vicinity of Gravelly Ford, 36 plus miles downstream from Friant.).
While the prayer of plaintiffs' complaint asked the full flow of the river, their counsel has insisted throughout the trial, and the case was tried on the basis, that the plaintiffs seek only that reasonable amount of water which they insist they are entitled to have for reasonable present and prospective uses by reasonable methods of diversion under the applicable Federal and California laws in the form of a judgment requiring a "physical solution." In relation to the full flow of the river and the amount impounded and diverted at Friant, the amount thus sought is small.
All parties serving pleadings prayed that the court impose a reasonable physical solution as that term has been applied by the courts of California. Plans of physical solution were submitted before the commencement of the trial.
Prior to the commencement of the trial the court suggested that the entire matter be referred to the California Department of Public Works, Division of Water Resources, as special master or referee under the provisions of the California Water Code, Sections 2075-2076. This proposal was rejected by all parties, and the court felt it had no discretion to direct the reference, in view of the fact that government officials who were defendants had had the case removed from the State court to the Federal court.
The trial has been protracted and bitter.[3]
By far, the greater portion of the evidence has dealt with the source, course and direction of underground waters. And while the defendant officials on the original Motion to Dismiss contended the plaintiffs had no rights at all, they, as well as all other answering defendants, admitted in their answers that the plaintiffs do have rights to water. The real difference as it has finally developed is the claim that the United States has taken the entire flow of the San Joaquin river by the exercise of its power of eminent domain, and that whatever rights the plaintiffs have to water to be released from Friant is solely in the discretion and determination of government officials. The question is, therefore, whether the plaintiffs are entitled to uncertain releases as a matter of mere grace in the amounts determined from time to time by government officials, or to releases of water as a matter of adjudicated right by virtue of their status as downstream and overlying owners with vested rights under applicable Federal statutes and the California law.
The lands of the class of landowners represented by the plaintiffs comprise approximately 300,000 acres which for many years have been highly cultivated *38 with ample water supply. The San Joaquin river filled some plaintiffs' needs fully and others partially, which will be discussed later. These lands lie in what may be roughly described as an equilateral triangle with the apex at Friant, and overlay the alluvial cone of the San Joaquin river westerly from Friant. In the Central Valley Plan no provision is made for bringing additional water to these lands, but their supply was to continue by releases from Friant.
It was not until long after the trial started that the definitive quantity of water to be released downstream from Friant to supply the lands of plaintiffs and their class was announced to be approximately only 48,000 acre-feet of water annually.
The first declaration by the Secretary of the Interior of the United States as to just how water was to be supplied to plaintiffs and their class was not made until March 30, 1953. And it is indefinite, as it leaves to the government officials the determination of "all valid legal requirements for the reasonable and beneficial use of water, both surface and underground, by reasonable methods of diversion and reasonable methods of use in that area."
The determination of those things are judicial questions, Gin S. Chow v. City of Santa Barbara, 1933, 217 Cal. 673, 22 P.2d 5, and to have them declared and enforced by judicial process is, in a word, the purpose of this suit.
*39 II.
General Facts, and Geographical and Physical Features.[3a]
*40
*41
*42 In the Opinion of this Court, filed April 13, 1950, 90 F.Supp. 773, a brief description of the Central Valley Plan, as well as its history, legislative and otherwise, was set forth.
It is felt, however, that some general facts and a description of certain geographical features of the valley, as well as a brief description of the physical works immediately involved in this case, will be helpful.
Many voluminous bulletins, reports, and the like, both California and United States, were admitted in evidence as exhibits, and carefully examined by the Court. By reference to such exhibits, or any other reference to them or any other exhibits, the Court does not adopt, or find as true, any statement in any of said exhibits which is contrary to, or inconsistent with, the conclusions expressed in this Opinion. Many of the reports, bulletins and publications contain factual matter concerning the surface and underground waters in issue in this case. The statements in the reports concerning many phases of the Project are merely the opinions of the authors, expressed without any challenge to them, which challenge has occurred in this adversary proceeding, where all the experts were submitted to extensive examination and cross-examination, not only on their opinions, but the factual bases for them. Many of the statements of fact and opinion in such documents are contradictory and conflicting with one another, and were not borne out by the evidence in this case, and are contrary to it.
It would serve no useful purpose to attempt to analyze the voluminous evidence in the case. All of the statements of fact contained in this Opinion are found by the Court to be true from a preponderance of the evidence in the whole case, after carefully weighing it and giving due consideration to all the factors required by the trier of facts to be taken into consideration in making a decision on the facts.
The Central Valley of California is an inland valley having only one outlet to the ocean at San Francisco Bay. It is commonly called the Sacramento-San Joaquin Valley. It is in the shape of an elongated bowl, having mountains on all sides except where the water passes into the sea at San Francisco Bay, and even there, its debouchment to the ocean is through a narrow pass called the Carquinez Straits. The valley, between the foothills, is approximately 400 miles long from the Grape Vine grade on the south to Red Bluff on the north, and at its widest point is approximately 100 miles wide.
The trough of the valley is not in the center of the valley floor, but lies westerly of the center so that only about one-third of the valley lies westerly of the trough.
The Sacramento River basin, with its separate tributary river systems, drains the northern half of the valley. The San Joaquin River basin, with its separate tributary river systems, drains the southern half of the valley.
The tributary river systems of the two basins gather their waters from the separate watersheds of each tributary river system in the mountains on the westerly and easterly sides of the valley, then flow easterly or westerly, as the case may be, to the central trough of the valley where they join the main drainage channels of each basin. After reaching the trough of the valley, they flow toward each other (i.e., the Sacramento southerly, and the San Joaquin northerly), until they meet in the so-called Delta area in the vicinity of Stockton, where they turn again and flow westerly through Carquinez straits into the San Francisco Bay, and thence into the Pacific Ocean.
The estimated mean average seasonal run-off of the combined rivers for the 53-year period 1894-1947 was 33,646,000 acre-feet. Of this, the Sacramento Basin accounted for 22,390,000 acre-feet, and the San Joaquin Basin for 11,246,000 acre-feet. (Ex. Cal.-M-1, p. 39).
This case is not concerned with the Sacramento river or any of its tributary river systems.
*43 In the southern part of the valley there is a negligible contribution of water from the mountains which lie on the west side of the valley. Rainfall on the floor of the valley varies from less than six inches to about twelve inches per annum and likewise, is negligible in contributing to river flow. The economic life of the valley does not depend on rainfall, but depends on the water gathered from the rivers which rise in the Sierra Nevada Mountains easterly of the valley and flows from them on to the floor of the valley for direct diversion into irrigation ditches, or for replenishment of the groundwater for wells. Practically all of the water in the southern or San Joaquin part of the valley comes from streams which have their origin in separate mountain watersheds on the east side of the valley. The water from those rivers then flows westerly to the trough of the valley where it either joins the main San Joaquin drainage channel and flows northerly, or flows southerly into the sinks of Tulare Lake or Buena Vista Lake.
The lands of both plaintiffs and defendant districts which are concerned in this case are in the southern portion of the southern half of the Central Valley, and lie in what is referred to in Exhibit 136 (p. 84, Plate 1) as the "East side Upper (southern) San Joaquin Valley." Such lands are in the counties of Madera, Fresno, Tulare and Kern.
That area lies easterly of the trough of the valley. On the south it is bounded by the Tehachapai Mountains, and on the north by a line slightly north of the Chowchilla River. Seven river systems in that area arise in their separate mountain watersheds in the Sierra Nevada Mountains to the east, from whence each flows westerly across the valley to its trough. The total average seasonal natural run-off for the 53-year period 1894-1947 for these seven river systems, measured at the point of debouchment into the valley, was 5,017,300 acre-feet per year. That of each of them respectively (beginning at the south end of the valley and going northerly), was as follows: Kern River736,000 acre-feet; Tule River140,000 acre-feet; Kaweah River416,000 acre-feet; Kings River 1,715,000 acre-feet; San Joaquin River 1,816,000 acre-feet; Fresno River 103,000 acre-feet; and Chowchilla River 91,300 acre-feet. (Exhibit Cal-M-1, pp. 410-411). There are a number of creeks rising in the foothills in the same area, but their contribution is slight compared to the above-named rivers. All of them fluctuate greatly, not only in different years, but in different seasons of each year.
The mean seasonal amount of water contributed by nature to the area of defendant districts other than to the lands of plaintiffs, is thus 3,201,300 acre-feet annually, without any contribution from the San Joaquin river.
All of the defendant Irrigation Districts, prior to the building of the Madera and Friant-Kern canals, were traversed by, or secured their water supply from, one or the other of these various river systems by wells or surface diversion. Thus, while water-hungry lands, they are not water-starved lands. Friant dam is calculated to give them a supplemental supply of water.
Each of the above-named river systems has a separate well-defined watershed area in the mountains, separate and well-defined points of debouchment from the mountains, and each has an alluvial cone.[4] Each is a separate river and river system, and has been historically known as such. And each has been concerned in much litigation about water *44 rights. All of them, by the undisputed evidence, at one time in the geological past, emptied into an inland sea, the only remnants of which are now called Tulare Lake and Buena Vista Lake.
Buena Vista Lake is the sink for the Kern River, and Tulare Lake is the sink for all the others, including the San Joaquin in flood time, except the Fresno and Chowchilla rivers whose contributions of water are minor. In times of extreme flood, the Buena Vista Lake empties north across the floor of the valley to Tulare Lake, and when that reaches a sufficient height, the water flows across the low ridge in the vicinity of Mendota and joins the San Joaquin at the place where it turns in the vicinity of Mendota to flow north after flowing westerly.
We are concerned here only with the waters of the San Joaquin river as they flow southwesterly from the mountains to Mendota.
The ultimate plan of development of the Central Valley, as stated in some of the bulletins and reports, calls for dams and reservoirs on each of the rivers as follows: Millerton (Friant Dam) on the San Joaquin River; Pine Flat on the Kings River; Terminus on the Kaweah River; Success on the Tule River; and Isabella on the Kern River. (Plate opposite p. 60, Ex. 136). Of these, the dams on the three large rivers of the area have been completed, viz.: Friant dam on the San Joaquin at Friant; Pine Flat (by the Corps of Army Engineers, and not by the Reclamation Bureau) on the Kings at Piedra since this suit was filed; and Isabella in the mountains on the Kern River since this suit was filed. Terminus dam on the Kaweah River and Success dam on the Tule river were authorized as Flood Control Projects by the Act of December 22, 1944, 58 Stat. 887 at page 901. The ultimate plan is only a plan, and only a few of its many units have been authorized and built.
The Central Valley Plan is a comprehensive and colossal undertaking. It is integrated in the sense that upon completion of all of the units envisioned by it, the very wise object will be accomplished of preventing the waste of millions of acre-feet of water into the sea.
As heretofore indicated, this case is not concerned with the whole Central Valley Plan. It is concerned primarily with Friant dam and the Madera and Friant-Kern canals, and, secondarily, with the Delta-Mendota canal. While each has relation to the objectives of the over-all plan of the Central Valley Plan, each is a complete unit, is physically operated as such, and has been, and is, regarded as such by the Congressional Appropriation Acts and the reports to Congress. They were so regarded and described in the Central Valley Project Act of 1933 of the State of California, Water Code, § 11100 et seq., and in the Feasibility Report approved by the President on December 2, 1935. Reference to the applicable Acts of Congress and the text of the Feasibility Report are found in 90 F.Supp. 773, and will not be repeated here, or hereafter alluded to, unless it is necessary to give point to the matter under discussion.
The San Joaquin river gathers its waters in its mountain drainage basin of 1,633 square miles in the Sierra Nevadas, and debouches from the mountains at Friant. It flows slightly west of south for 14 miles, then more southwesterly 45 miles to a place called Mendota (59 miles below Friant), whence it abruptly turns and flows northerly. The direction of flow is an important factor in connection with the extent of its alluvial cone and the groundwater therein.
Friant dam is built at Friant. The body of water impounded back of it is called Millerton Lake. Construction was started on Friant dam on November 3, 1939. A very small quantity of water was impounded during construction in October, 1941, below the valves which are the outlet to the San Joaquin river. The valves to the river bed were partially closed, and the first diversion of water to the Madera canal was made in 1944. The first diversion to Friant-Kern canal was made in 1949. The date of the completion *45 of the dam is uncertain. It was not completed prior to the filing of the within suit in September, 1947.
Madera canal is 37 miles long, runs northerly from Friant along the easterly side of the valley, and serves the Madera and the Chowchilla Irrigation Districts. Friant-Kern canal, completed after this suit was filed, is 153 miles long, runs southerly along the Sierra-Nevada foothills on the easterly side of the valley, and terminates in the Kern river near Bakersfield, and serves the remaining 13 defendant Irrigation Districts. The take-off valve for the outlet to the Madera canal is lower than the take-off valve to the Friant-Kern canal. Thus, to serve the Friant-Kern canal, waters impounded back of Friant must be above the elevation of that take-off valve; and waters to serve the Madera canal must be above the elevation of the take-off valve to that canal.
The Delta-Mendota canal is on the westerly side of the valley, and begins in the vicinity of Tracy and goes southerly along the westerly side of the valley to Mendota 59 miles below Friant. It is 120 miles long. It is a different physical works than the San Joaquin River Pumping System, which is described in the Federal Feasibility Report of 1935 and the California Central Valley Project Act of 1933. When the change of plan or authority for it occurred, is not clear. It takes water out of the Sacramento river which, after being lifted by the pumping station at Tracy, flows southerly and enters the Mendota Pool where it is re-distributed and flows northerly through the old river bed of the San Joaquin or a system of canals, in the same direction as the San Joaquin river originally flowed at that point, and furnishes water to substantially the same lands (about 200,000 acres) which were supplied by the San Joaquin river either by diversion into canals at Mendota Pool or by the bed of the river, before the building of the Delta-Mendota canal. The Delta-Mendota canal is not directly involved in this lawsuit except as it may be necessary to refer to it. It was not completed until 1951.
It is well at this point to refer to a popular misconception of the function of the Delta-Mendota canal, which easily could be received from the various official publications of both the State of California and the Federal government. That misconception is that the Delta-Mendota canal physically takes water wasting into the ocean from the Sacramento river system, and by the canal physically brings those waters to Millerton lake back of Friant dam, and from thence to the lands throughout the whole southern end of the valley, including the lands of the plaintiffs. That is not the case at all. Not one drop of water from the Sacramento river by way of Delta-Mendota canal, or otherwise, is impounded back of Friant dam or is put upon any of the lands of plaintiffs or of defendant Irrigation Districts, except a small amount temporarily from time to time on lands in the immediate vicinity of the Mendota Pool.
Prior to the inception of the Central Valley Project, Miller & Lux, Inc. and its subsidiary Canal Companies had various rights to the use of water of the San Joaquin river, which rights are complicated to describe in detail, but which may be generally classified as either riparian or appropriative, some of the latter of which had been acquired by prescription. The total quantity of water which such rights covered is not clear but seems to be in the neighborhood of 1,500,000 acre-feet per year. Some of the water was diverted by Miller and Lux canals above Mendota, such as Gravelly Ford, but most of it was gathered back of a comparatively small dam at Mendota in what is known as the Mendota Pool, and from that pool distributed to the lands to be served, either by way of the river bed or by way of various canals. Except for water diverted at Gravelly Ford by canals, all of the water for the Miller & Lux water rights, flowed past the lands of plaintiffs and their class to Mendota, and was used by the *46 plaintiffs and their class, both for direct diversion and for supplying and replenishing the underground.
The United States purchased some of the Miller and Lux rights by the so-called Purchase contract, and paid $2,450,000 therefor. At the same time, and as part of the same transaction it agreed, by contract called the Miller and Lux Exchange contract, to provide water for substantially the same lands theretofor served from the Mendota Pool or by the Miller & Lux Canal Companies, which water was to be taken from the Sacramento river by way of the Delta-Mendota canal to Mendota Pool. From there, the water would be distributed by a system of canals to the lands formerly served by Mendota Pool so that there would be in effect little or no loss of usable water by the Miller and Lux lands, or the lands served by them or their subsidiaries below Mendota because of either the Purchase or Exchange contracts.
Thus, the water taken from the Sacramento river into the Delta-Mendota canal in effect, flows in a circle, beginning at the intake in the Delta in the vicinity of Tracy, thence south to Mendota Pool, thence north again to the Delta, without at any time coming into contact with, or being able to serve, the lands of plaintiffs and their class. And the plaintiffs and their class receive no benefit from the Delta-Mendota canal.
It appears that the San Joaquin river has debouched at or near Friant for more than a million years;[5] it has flowed in its present channel and degraded its bed between the present bluffs during the past 100 or 150 thousand years; prior to that time and during the period of building its alluvial cone, it flowed in other channels, some of them as deep as the present channel, and deposited therein boulders, cobbles, gravel, sand and other alluvial material in the bed of its previous channels, the heavier and coarser material being deposited first and the fines last; water will flow underground through such coarse material more readily than through finer material; those channels changed from geologic time to geologic time[6] because of the tremendous quantities of water and detritus being brought from the mountain watershed on to the valley plain, which, when dropped in the channel, caused obstacles and forced a change in the direction of the flow; after those channels were changed,[7] finer alluvial material from the river, winds of unbelievable velocities carrying dust of extreme fineness, and other action of the elements filled the channels over which form what is known as aquifers,[8] through which water flows more freely underground than in the surrounding material; the aquifers are confined[9] in the sense that they are overlaid or encased in clayish material which is not wholly impervious, but is sufficiently so that water does not percolate freely through it; such aquifers are in contact with the present bed of the San Joaquin river,[10] and branch out from it much as the branches of a bush or tree all stem from the main trunk of the tree;[11] such aquifers are buried and are at different depths;[12] the depth from the surface to the basement rock in the alluvial cone of the San Joaquin river *47 varies from a few hundred feet at Friant to several thousand feet in the vicinity of Biola, and the river in earlier geologic times had a steeper grade than at present so that the deeper the aquifer, the steeper the grade; all of the material from the basement rock to the surface of the ground in the alluvial cone has been filled in by the actions of the San Joaquin river, except for some contribution from the Kings river and for some comparatively shallow alluvial deposits overlying the main cone of the San Joaquin river made by ephemeral small creeks such as Dry Creek, Little Dry Creek, Dog Creek and Fancher Creek; in the natural flow of the San Joaquin river its aquifers receive their supply and replenishment of water from the San Joaquin river; the aquifers, being the former beds of the river at different depths and of different ages, are not straight or regular in course or direction, but are winding and sinuous,[13] as is the present bed of the river, and follow the same general direction as the present bed of the river; some of said aquifers may cross and recross underneath, or at the present level of, the bed of the river; before the construction of Friant dam a great deal of cobbles, boulders, rock, sand and gravel and finer material was washed down from the mountains into the bed of the river, but with the building of the dam and the release of clear water therefrom, the water will tend to degrade the bottom of the San Joaquin river, which will put some aquifers out of contact with whatever flow is in the river; the area where the river formerly flowed and upon which it deposited the detritus and has built up the material, is the area of the alluvial cone; the alluvial cone of the San Joaquin river embraces all of the land within the exterior boundary lines of what has been referred to throughout the trial as the "Lee" lines; the water-bearing strata in the alluvial cone has been supplied and replenished from time immemorial in a substantial part by water percolating from the San Joaquin river; the San Joaquin river is a common source of supply for those pumping directly from the river and those in the alluvial cone taking water by wells; there is no adversity of interest in this case, in maintaining that common source of supply, between any of the plaintiffs or between plaintiffs and any riparian or overlying owner within the boundaries of the alluvial cone; within the limits of the alluvial cone lies a portion of the City of Fresno, other towns and villages, and several water districts, each of which takes water from wells which have been in the past supplied in whole or in part by percolation from the San Joaquin river, and which water is used for the inhabitants and water users for domestic and municipal purposes; all of the water taken either directly from the river, either by means of wells so supplied or replenished by the San Joaquin river by the plaintiffs and by all of the persons within the alluvial cone area, is now, and has been for many years since the first settlement of the area, put to reasonable and beneficial uses by reasonable methods of diversion for agricultural purposes, for stock and poultry raising, and for domestic and municipal uses; the San Joaquin river flowing in its natural state, in addition to providing water for pumping directly from the river and supplying and replenishing the underground aquifers in the alluvial cone of the San Joaquin river, also supplied water by percolation into portions of the area of the alluvial cone immediately adjacent to the river, which water by capillary attraction and by forces of nature unknown to man, was taken by the roots of plants and other vegetation planted as crops upon said land in an amount sufficient to maintain, in the bottom lands between the bluffs, certain crops and vegetation without the necessity of surface irrigation, or by virtue of which a minimum of surface irrigation was required; a great portion of the area of the San Joaquin river alluvial cone south of the river is within the area of the *48 Fresno Irrigation District, and is served water for irrigation by the Fresno Irrigation District which receives its water supply from the Kings river; the water so applied to surface irrigation which is not used by transpiration by plants or evaporation, or which does not run off as excess, seeps and percolates into the ground as a partial source of supply to shallow wells drilled in the area, but the nature of the soil is such that water does not percolate in any substantial quantity to, or penetrate to, the deeper lying aquifers formed by the San Joaquin river as it flowed in the geologic past, which aquifers supply water to the deep wells in the area, such as the City of Fresno wells and the deep wells in, and in the area of, the Tranquillity Irrigation District, and are confined and receive their principal supply and replenishment from the San Joaquin river; since the alteration of the regime of the natural flow of the river by the Friant project, the water level in the wells in the alluvial cone of the San Joaquin river has lowered more than can be ascribed to overpumping; such lowering of water levels is substantially caused by the alteration of the natural regime of the flow of the river as a result of the operation of the Friant project; the shallower water level in wells lying north of the City of Fresno and slightly west forms a groundwater mound,[14] or a perched water table,[15] receiving its supply largely but not wholly from the surface applications of waters by users in the Fresno Irrigation District; that the Fresno Irrigation District spills the excess runoff water into the bed of the San Joaquin river at several places, and as a result thereof, and of rainfall, there have been times when more water flowed in the river below Whitehouse gauging station than flowed from Friant; but such periods were short and varied, and such gain in flow does not indicate that water did not percolate into the aquifers between Friant and the several points of spill to the river from the Fresno Irrigation District.
At all times after the passage or the Central Valley Project Act by the State of California, and after the passage of the Acts of Congress authorizing the construction of Friant dam and its appurtenant works, and during the construction thereof, the plaintiffs and the members of their class were assured by repeated public statements made by the officials of the Department of the Interior, not only to the public generally, but in all reports to Congress, that all of the land lying between Friant dam and Mendota, therefore receiving water in whole or in part by direct pumping or by replenishment of groundwater from the San Joaquin river, would continue to receive the supply of water they had previously received, and that in fact their supply of water would be increased and equated throughout the year, and thus the use thereof increased; that in fact in seasons of the year prior to the filing of the within suit, and after the commencement of the construction of Friant dam, increased quantities of water were released past Friant dam to flow in the channel of the San Joaquin river past the lands of plaintiffs and their class. On July 15, 1947, Richard L. Boke, Regional Director, Region 2, Bureau of Reclamation, wrote a letter, as Regional Director (Exhibit 162), which was the first indication that the plaintiffs and the members of their class would, by impoundment and diversion at Friant, be deprived of the rights which they had theretofore enjoyed to the use of water of the San Joaquin river as it flowed between Friant and Mendota; that after the receipt of such letter, the plaintiffs promptly, on behalf of themselves and all riparian and overlying owners similarly situated in the area of the alluvial cone of the San Joaquin river, commenced the within suit by filing it on September 25, 1947, in the Superior Court of the State of California, which *49 action was thereafter removed to this court.
The natural flow of the San Joaquin river below Friant is, and from year to year and season to season has been, variable and includes all of the flood flow of the river prior to the development in 1928 of power dams upstream from Friant on the San Joaquin river, and since five years after 1928 the natural flow of the river was all of the water, including flood waters flowing past Friant as affected by said power dams.
The operation of the Friant project as conducted since this suit was filed and as threatened by the United States and defendant officials will result in insufficient water flowing in the bed of the San Joaquin river either to replenish and supply the underground as theretofore done, or to permit the pumping of water directly from the river for irrigation, domestic and other useful and beneficial purposes, as theretofore done, all as alleged in plaintiffs' complaint. Unless the plaintiffs and the members of their class receive water, they will be compelled to abandon their farms and homes, and the City of Fresno and others supplying water for domestic and municipal purposes will be unable to supply water, all of which will result in great immediate and irreparable injury, as alleged in plaintiffs' complaint as amended and supplemented.
III.
History of Litigation.
On April 13, 1950, this Court filed its Opinion, 90 F.Supp. 773, denying Motions to dismiss, and also denying the plaintiffs' then pending Application for Temporary Restraining Order, as well as acting upon other motions not concerned here.
The opinions and conclusions therein expressed, as well as those expressed in 16 F.R.D. 310, and 131 F.Supp. 421, will be adhered to unless inconsistent with the opinions and conclusions herein expressed.
The suit was first filed in the State court on September 25, 1947, as a class suit, by certain named plaintiffs on behalf of themselves and all others similarly situated. The class and area involved are described above. The named defendants at that time were certain then officials of the United States (substitutions have since been lawfully made), and two Irrigation Districts which had made, or were about to make, contracts to take water from Friant dam by way of the Madera canal or by way of the Friant-Kern canal. Upon motion by the United States attorney, on behalf of the defendants who were officers of the United States, the case was removed to this Court on October 6, 1947. No motion to remand has ever been made.
In 90 F.Supp. 773 it was held that the Complaint, on its face, stated a claim for relief as a class action on behalf of the named plaintiffs and all those similarly situated, both as to those pumping water for agricultural and domestic uses, directly from the San Joaquin river, and as to those pumping water from the underground, claimed to be replenished by the water from the San Joaquin river as it flowed between Friant and Mendota prior to the building of Friant dam.
The Court held that the Complaint did not state a claim for relief as a class suit for rights of use of the water of the San Joaquin river for other purposes than agricultural, domestic, and municipal uses, including specifically, the right of use of the water for replenishing gravel beds, for spawning and fishing of salmon for both recreational and commercial purposes. In connection with the latter contention, it was pointed out that the responsibility for maintaining the flow in the river for the use of spawning and fishing of salmon and other fish lay with the officials of the State of California.
The State of California was not named as a defendant, but came into the case voluntarily by intervention.
Thereafter, on May 3, 1950, the State of California filed a Complaint in Intervention asserting the right to have the release of a sufficient amount of water *50 from Friant dam which would permit a continuous flow of 250 second-feet to reach the mouth of the Merced river (approximately 50 miles downstream from Mendota and about 100 miles below Friant), for the maintenance of fish life until the end of the 1950 spring salmon run. An application by the State of California for an injunction pendente lite was noticed, brought on for hearing, and heard extensively on May 15, 16, and 17, 1950, on oral evidence and voluminous affidavits. During the course of the hearings an agreement was reached between the defendant officials of the United States and the State of California allowing the release of a certain quantity of water for the maintenance of fish life and the building of a fish ladder in the vicinity of the mouth of the Merced river. The Application for Temporary Injunction was then withdrawn.
Thereafter, on August 11, 1951, the State of California filed a Motion for leave to file an Amended Complaint in Intervention, which motion, after hearing, was granted. In the Amended Complaint the State abandoned its claim of right to have water released from Friant dam for the maintenance of fish life.
Both the City of Fresno and Tranquillity Irrigation District are partially within the boundaries of the alluvial cone lines of the San Joaquin river. The City of Fresno gets its water supply from wells, and distributes it through an integrated system commingling water from all its wells. Both the City of Fresno and Tranquillity Irrigation District claim that their wells are supplied and replenished by the San Joaquin river, and being legal entities, were permitted to be added as named plaintiffs as members of the class, in order to prevent any future contention that as such legal entities they would be only partially bound by any judgment in this case as members of the class.
The total acreage of plaintiffs and their class is approximately 300,000 acres.
The asserted rights of the City of Fresno and the Tranquillity Irrigation District, as named plaintiffs and members of the class of overlying owners entitled to underground supply and replenishment from the San Joaquin river, are not to be confused with the asserted rights of each of them under the second cause of action of each of their Complaints in Intervention, which will be dealt with later.
All of the Irrigation Districts having contracts with the Bureau of Reclamation to release water from Friant dam, either by way of the Friant-Kern canal or by way of the Madera canal, were either joined as defendants, or came in voluntarily as Doe defendants, and filed answers to plaintiffs' Complaint. There are 15 such Irrigation Districts having within them a total acreage of approximately 620,452 acres.
The defendant officials of the United States filed answers to plaintiffs' Complaint as then amended on October 15, 1951.
After hearing, temporary restraining orders were made in August, 1951,[16] and August, 1952, with the consent of all parties. These orders restrained the impounding of water by defendants to an extent not necessary to detail here, and were complied with.
A pre-trial hearing was had, and a pre-trial order was made in January, 1952. The trial of the case commenced in Fresno on January 29, 1952. It continued with interruptions until the close of the evidence on December 31, 1954, a few days short of three years after the trial commenced.
Two extraordinary writ proceedings were had in the course of the trialone in 1953 as a result of a temporary restraining order made on April 24, 1953, *51 with the specific consent of the Attorney General of the United States and the Secretary of the Interior, 9 Cir., 206 F. 2d 303, and the other in 1954, 9 Cir., 213 F.2d 818, as the result of an order dated January 30, 1954, denying a motion to dismiss the United States as a party after an order which joined the United States as a party defendant under the Act of July 10, 1952, 43 U.S.C.A. § 666.[17] No writs were issued in either proceeding.[18] And no stays were ordered but out of respect to the appellate court, this Court took no action during either of the writ proceedings.
Motions of Tranquillity Irrigation District and the City of Fresno to file separate complaints in intervention were first put off calendar, but, on renewal during the trial, were granted as to the second cause of action of each.
After the decision by the Appellate Court in August, 1954, in the second writ proceeding, the plaintiffs, the intervenor City of Fresno, and the intervenor Tranquillity Irrigation District, each on order after notice and motion, filed two separate documents, a "Supplemental Complaint"[19] and an "Amendment and Supplement to Complaint." After due and regular service thereof, and upon due and regular notice, the Court on November 18, 1954, made its order reopening the trial and setting a date therefor. D.C., 16 F.R.D. 310. The Order, among other things, provided that the trial of the above-entitled action be reopened not only to allow any party to introduce evidence discovered since July 3, 1953, but also for the purpose of introducing evidence theretofore introduced for or against the United States of America and/or any of the then parties. A further pre-trial conference on December 3, 1954, was devoted largely to the evidence proposed to be introduced on the trial as reopened, and no further written pre-trial order was made.
The defendant officials were ably represented throughout the trial and other proceedings in this court until July, 1953, by Special Assistant to the Attorney General, Joseph F. McPherson. He also appeared for their substituted successors and for the United States on the Motion to Dismiss filed in December, 1953, after the United States was joined as a party. He did not appear or participate in either of the writ proceedings had in the United States Court of Appeals. He continued to appear on various matters in the case until July 12, 1954, when he advised the Court that by direction of the Attorney General of the United States he would no longer be connected with the case. At that time, Harold Weise, Assistant United States Attorney for the Northern District of California, was presented to the Court with the idea expressed that he "will take over the defense of the case insofar as it affects the defendant officials of the Bureau of Reclamation and the Government of the United States." Mr. Weise stated, however, that he was there that day just to *52 "see how the case is shaping up." He has not since appeared, either in court or on the pleadings. The matter then on for hearing was continued to August 16, 1954.
Since July 12, 1954, astonishingly, no appearance has been made by the United States Attorney, any Assistant United States Attorney, the Attorney General of the United States, or any Assistant or Special Assistant Attorney General of the United States at any proceeding or hearing or trial on behalf of either the defendant officials or the United States of America.[20] Long after due, answers were tendered by the substituted officials, to the Supplemental Complaints filed August 10, 1954, of the plaintiffs and those of Tranquillity and of the City of Fresno. A motion was made by plaintiffs to strike them, on the ground that they were too late, but the motion was denied. No answer or motion to dismiss was ever filed by the defendant officials or the United States to the Amendment and Supplement to the Complaint, filed separately by each, the plaintiffs, the intervenor City of Fresno, and the intervenor Tranquillity, which separately state as a cause of action a claim for declaratory relief under Section 2201 of Title 28 United States Code. The trial as reopened, was set for, and resumed, on December 7, 1954.
Motions were made for default of the United States and the defendant officials in compliance with the Federal Rules of Civil Procedure, so that the trial proceeded on its reopening against all the defendants, whether represented by counsel or not, and all the evidence previously introduced was introduced and admitted against the United States and the substituted defendant officials. It should be noted here that after joinder of the United States, the Court was careful to require notice of all matters and proceedings to be served, not only on the United States Attorney for this District, but also on the Attorney General of the United States.
When the trial closed, dates were fixed for filing briefs, to expire on April 11, 1955, at which time the matter would be finally submitted for decision on the meritsat least that was the hope.
But on the day the trial closedDecember 31, 1954the State set April 5, 1955 (before the briefs were due or filed), as the date to commence administrative hearings under the California Water Code, Sections 1200-1801, on the various applications to appropriate water, which applications had been introduced in evidence, and some of which were relied on by defendants, in part, as supporting the right to impound and take the water in derogation of the plaintiffs' claimed rights. Said applications had laid dormant without action by the State, not only during the seven years since this suit had been filed, but they had been pending from 38 to 16 years without any hearings being called, noticed, or set by the State. The plaintiffs, after a few days of hearing over their objection, then filed an ancillary proceeding in the within suit to restrain further hearings on such applications. This matter was heard on April 27, 28, and 29, 1955, and on May 7, 1955, this Court, by its Memorandum Opinion, directed that the injunction pendente lite be granted. This was followed by formal *53 order to that effect on May 24, 1955. Reference is made to the Opinion of May 7th for further details of that proceeding, which Opinion is published in D.C., 131 F.Supp. 421.
While a Notice of Appeal has been filed from that Order, the main case on the merits is now nevertheless finally postured for decision.
IV.
The Parties.
A further brief word should be said about the parties.
Three of the four Complaints in the action are Complaints in Intervention. For that reason, the plaintiffs, named in and as added to, the original Complaint, will be, and have been hereinbefore, referred to as the "plaintiffs." They are, as the action has stood since the addition of other named plaintiffs in the early stages of the trial, 14 individuals, one private corporation, the City of Fresno, a municipal corporation, and the Tranquillity Irrigation District, a public corporation. They sue, not only on behalf of themselves, but as representatives and members of a class owning rights to the use of water from a common source of supply, viz.: the San Joaquin river as it flowed between Friant and Mendota prior to the Friant Project.
Generally speaking, there are two methods of taking water, viz.: pumping directly from the river, and pumping from wells which receive their underground supply from the San Joaquin river. All those who pump water directly from the river also take water either for domestic or irrigation purposes by wells. Such of the plaintiffs who take directly from the river own lands bordering on the river. Some of the plaintiffs, notably the City of Fresno, do not own land bordering the river, but get water from wells asserted to be supplied in whole or in part by water flowing underground from the San Joaquin river.
Those who pump directly from the river may sometimes hereafter be referred to as riparian owners or riparians, and those taking by wells from the underground, as overlying owners or overlying properties.
The State of California is the plaintiff in a separate Complaint in Intervention. The Tranquillity Irrigation District and the City of Fresno are complainants in separate Complaints in Intervention, as well as being named plaintiffs in the original Complaint.
The original Complaint named as defendants certain officials of the United States, two Irrigation Districts and their officers, and various Does. Substitutions of the official defendants who appeared have since been lawfully made, and parties added, so that now the parties defendant to the original Complaint, as amended and supplemented, and to the Complaints in Intervention of the City of Fresno and Tranquillity Irrigation District, as amended and supplemented, are: the United States of America, Clyde Spencer, Martin Blote, and Edwin F. Sullivan, (officials of the United State Bureau of Reclamation having to do with the operation of Friant dam and other works directly involved in this proceeding) and 15 Irrigation Districts, 13 of which take water from the Friant-Kern canal, and two of which take water from the Madera canal.[21] Plaintiffs' counsel states in his brief that the State of California is a party defendant. But the State was not named originally, and no order has ever been made permitting it to be joined as a defendant.
The parties defendant in the original Complaint in Intervention of the State of California were those named in the plaintiffs' original Complaint. In its Amended Complaint in Intervention, no *54 amendment of parties was made. Thus, the defendants to the State's Complaint in Intervention are all of the defendants designated in plaintiffs' original Complaint. It was assumed that the State of California had issued summons, and served all the defendants, but after many months of trial, during all of which the State participated, it was discovered in late 1953 that no summons had been issued on the State's Complaint in Intervention, and that service of the Complaint had not been made, although an answer thereto had been filed by the original plaintiffs and by one Irrigation District. Thereupon, the Court ordered summons to issue and be served, as well as the State's Amended Complaint in Intervention, upon all parties as they then existed, including the United States. Thereafter all parties answered the State's Complaint in Intervention, except the United States and the officials of the Bureau of Reclamation.
V.
The Pleadings.
This phase of the discussion will deal with the original plaintiffs' Complaint and amendments thereto and supplements, and the Complaint in Intervention of the State of California, as well as the Answers to both sets of pleadings. It will not deal with the Complaints in Intervention of the City of Fresno or Tranquillity, except incidentally.
While the case was tried on the issues described in the pretrial order (set out in full in Appendix B), it is nevertheless necessary to refer to the pleadings in view of contradictory positions taken by various defendants and by the State of California in pleadings and briefs.
The Complaint of the original plaintiffs, as it stood at the time of the ruling on the Motion to Dismiss in April, 1950, insofar as the material portions are set out in D.C., 90 F.Supp. 773, will not be repeated in full.
Paragraph X of the original Complaint contained a count for declaratory relief, not, however, stated as a separate cause of action. Several clarifying amendments were made before and after the April, 1950, ruling, 90 F.Supp. 773, but they are not of particular consequence except the Amendment and Supplement to the Complaint filed on August 10, 1954, after the United States was made a party. By that amendment and supplement, a cause of action for declaratory relief was separately stated.
Summons and copies of all pleadings, as well as Notices of all proceedings, have been duly and regularly served on the defendant officials and on the United States in accordance with 43 U.S.C.A. § 666 and the Federal Rules of Civil Procedure.
No motion to dismiss that Amendment or Supplement has ever been made by the United States or the defendant officials of the United States. No answer has been filed by the United States or the defendant officials of the United States to that Amendment and Supplement, and no answer or responsive pleading at all, other than the Motion to Dismiss, which was denied by the Court in January, 1954, has ever been filed in the name of the United States to any pleading.
In brief, the original Complaint, as amended and supplemented, alleges the ownership of the land of the plaintiffs and their class; the natural flow of the water of the San Joaquin river from time immemorial in its channel between Friant and Mendota prior to Friant dam; the claim of the plaintiffs to that flow of water needed for surface pumping and to restore and supply in whole or in part the underground water supply for the natural sub-irrigation of crops, and for wells of the overlying land owners; the reasonable present and prospective beneficial uses of the water so taken for more than 60 years; that the plaintiffs are members of, and representatives of, a class of landowners taking water directly from the river and from the underground by sub-irrigation of crops, capillary attraction, and by wells; the positions and capacities of the defendant officials; the building of Friant dam and the Madera and Friant-Kern canals; *55 and the continuous open and public representations by all officials of the United States and the State of California assuring the plaintiffs and members of their class that their supply of water or their water rights would not be taken, but that the supply would be improved. Attached to the Complaint is a letter of July 15, 1947, from the then Regional Director of the Bureau of Reclamation, whereby plaintiffs allegedly learned for the first time that such was not the case. The Complaint further alleges the making of contracts between the United States and the defendant Irrigation Districts, the threat of the defendant officials to take and destroy their water supply, and impound and divert water at Friant dam, allegedly contrary to the laws of the United States and of the State of California applicable thereto and contrary to the representations above made. By the amendment and supplement of the Complaint, the claim for declaratory relief originally set forth in Paragraph X of the original Complaint is stated as a separate cause of action against all defendants.
The plaintiffs pray, among other things, for a "physical solution," as that term is used in the decisions of the courts of California, in the event the injunction they ask for is denied; they also pray for a declaration of invalidity of the contracts with the Irrigation Districts, and for other relief.[22]
While the plaintiffs ask for the full natural flow of the river in their prayer, plaintiffs, from the inception, have repeatedly stated that what they desire is a reasonable amount of water in accordance with their vested rights under the Federal Reclamation Act and California law, and the case was tried throughout on that basis.
The defendant officials' Answer to plaintiffs' Complaint raises, as separate defenses, the failure to state a cause of action; that this is an action against the United States; that the United States and the Secretary of the Interior are each an indispensable party, and have not consented to be sued; that the plaintiffs have a plain, adequate, and complete remedy at law; and that the plaintiffs seek by indirection to manage, operate, and control property of the United States over which this Court does not have jurisdiction. It denies that the defendant officials are acting unlawfully. It admits that the San Joaquin river flowing between Friant dam and Mendota Pool supplies underground and percolating water, but denies that it does so to the extent claimed by the plaintiffs; the defendant officials say that they are without knowledge or information sufficient to form a belief as to the truth of the allegations of the Complaint as to the supplying of the underground by percolation, et cetera, "but demand strict and proper proof thereof." The defendant officials deny the allegations of the Complaint as to the use to which the waters are put, with the qualification that they admit that certain of the lands described in the Complaint, as amended, have and are making beneficial use of small quantities of water diverted from the San Joaquin river. The defendant officials further deny that the plaintiffs have or will require all or even a substantial portion of the flow of the San Joaquin river in order to furnish them, and each of them, as may be lawfully entitled thereto, a sufficient quantity of water for beneficial use for surface irrigation and domestic use upon their lands, and to supply and maintain the underground percolating water strata. The defendant officials further state in their answer that the plan of the Central Valley Project, approved by Congress as it affects the San Joaquin river between Friant dam and Gravelly Ford
"requires the Bureau of Reclamation to, and it will, recognize and respect existing water rights of all riparian owners, including such of the plaintiffs, if any, as are riparian *56 owners, on the San Joaquin river between Friant dam and Gravelly Ford, as they exist under the laws of the State of California, and which have not heretofore been acquired or adjusted by the United States. In order to accomplish this purpose, that is to say, to give that recognition to those rights which the laws of California require, it is the plan, purpose, and intention of the Bureau of Reclamation to release at Friant dam into the bed of the river a sufficient quantity of water so as to enable said riparian owners between Friant dam and Gravelly Ford to divert from the stream and to make reasonable beneficial use by using reasonable methods of diversion and reasonable methods of use and purpose, the waters required for irrigation and domestic use and, in addition thereto, to maintain a live stream in the river of not less than five second-feet at Gravelly Ford."[23]
It is alleged that the costs necessarily incurred in converting, altering, or adapting such of the present diversionary facilities as are reasonable to facilitate diversion from the stream as it will exist, or as the flow will be altered under the operational plan therein set forth, will be borne by the Bureau of Reclamation, either as a direct charge or by way of reimbursement to the owners, of costs necessarily incurred by them in such conversion of their presently existing facilities.
It is further alleged that:
"These defendants are informed and believe, and so believing allege, that the costs, if any, necessarily incurred by those diverting from the underground water table supplied or fed by the San Joaquin River, in adapting or adjusting their facilities to meet the change, if any, in said underground water supply caused or resulting from the reduced and controlled flow of the San Joaquin River, will likewise be borne by the Bureau of Reclamation, but these defendants are informed and believe, and therefore allege, that the underground water supply will not be affected by the reduced and controlled flow of the San Joaquin River under the operational plan aforesaid."
The Answer further admits that the Bureau of Reclamation intends to store and divert at Friant certain quantities of water, without specifying the quantity, which would otherwise normally flow along and through the San Joaquin river.
Answering plaintiffs' count for declaratory relief, they
"Admit that an actual controversy exists between the plaintiffs on the one hand and the United States of America and certain of the defendants on the other hand, with respect to the waters, property, and property rights described in the Complaint, as amended."
They further state:
"and these defendants further allege that the authorized and declared plan of operation of the Central Valley Project will not deprive plaintiffs or any or either of them, or any other person, firm or entity, of their water rights as they exist under the laws of the State of California, or impair them or their exercise save and except in the manner hereinbefore alleged."
The official defendants pray for dismissal, and then that the
"Court determine which lands described in plaintiffs' Complaint are riparian to the San Joaquin River, and are entitled to a reasonable quantity of water for irrigation and domestic use therefrom"
and which lands
"have their underground water strata charged and recharged from the San Joaquin River."
*57 They further pray:
"4. That this Honorable Court determine that the lands found to be riparian to the said San Joaquin River shall be entitled to a reasonable quantity of water for beneficial use thereon for irrigation and domestic purposes, and that sufficient water allowed to flow in the San Joaquin River to furnish said riparian owners with said supply of water by the use of reasonable means of diversion from the said San Joaquin River by pumps, and further determine that channelization of the said San Joaquin River be made so as to reduce the quantity of water to be discharged from Friant dam in order to supply said riparian lands with said quantity of water.
"5. That this Honorable Court determine and adjudge that a live stream shall be maintained at all times between Friant dam and Gravelly Ford on said San Joaquin River, which said live stream shall at no time be required to be in excess of the natural flow of the San Joaquin River if Friant dam were not constructed and in operation, which said live stream shall be for the purpose of supplying the said quantity of water for use upon lands riparian to said San Joaquin River and to supply the underground percolating waters for lands determined to be entitled to a recharge from the San Joaquin River for said underground waters.
"6. That this Honorable Court further determine that at no time a flow of greater than five second-feet need pass the downstream boundary of the lowest riparian owner upon said river between Friant dam and Gravelly Ford.
"7. That the plaintiffs' prayer for injunction be denied.
"8. That the Court award to defendants their costs.
"9. That the Court grant such other and further relief as is meet and equitable in the premises."
As will be seen from the foregoing summary of the Answer, the defendant officials admit rights of the plaintiffs to water. But the position taken by the Attorney General of the United States since 1953 is that plaintiffs have no rights to water at all.
In the defendant officials' Answer to the Supplemental Complaint, (none having been filed to the Amendment and Supplement to the Complaint of August 10, 1954), they incorporate all of the allegations of their first answer, thus admitting that the plaintiffs have rights to water. They also again assert separately, the separate defenses set forth in their first Answer, going to jurisdiction, and in addition thereto, claim that the Secretary of the Interior and the Commissioner of the Bureau of Reclamation are each indispensable parties, and that the Court does not have jurisdiction over them, a position which was asserted on the original Motion to Dismiss, but after the ruling in D.C., 90 F.Supp. 773, was not asserted as a special defense in their first Answer. They also assert, as a special defense, that the plaintiffs are not representatives of a class. The Answer also contains admissions and denials which are not of sufficient importance to be recited here. They again assert that the United States "is the owner and operator of Friant dam and appurtenant works." They do not assert in that Answer or in their previous Answer that the United States owns the title, fee or otherwise, to the water or to the use of it.
However, confusion arises by reason of allegations contained in the Answers filed by the Bureau officials to the Complaints in Intervention of Tranquillity and the City of Fresno. In each such Answer they assert that
"A public use in favor of the United States of America has and is attached to all rights to the use of water in the San Joaquin River,"
*58 and that
"The United States of America through the exercise of its power of eminent domain has taken all rights to the use of water in the San Joaquin River which are required for the operation of Friant dam and its appurtenant works, all components of the Central Valley Project, that fee simple title to all the rights to the use of water required for the operation of the Central Valley Project has at all times since that taking resided in the United States of America."
They do not allege the date or manner of such alleged "taking."
The defendants Chowchilla Irrigation District, Madera Irrigation District, and Southern San Joaquin Municipal Utility District, each filed separate Answers. The remaining 12 Districts joined in one Answer.
Madera and Southern San Joaquin Municipal Utility District filed substantially the same answer, containing general denials, and alleging laches and lack of jurisdiction.
The Answer of the Chowchilla District raises certain special defenses and makes denials, but admits that certain land of the plaintiffs is making beneficial uses of certain water of the San Joaquin river, both in surface application and in the supply of underground water, which underground supply is unknown to the answering defendant, Chowchilla. The Answer also demands proof of the area covered and served by underground strata but specifically denies that the lands ascertained will require all the flow of the San Joaquin river. The Answer specifically admits the allegations of Paragraph X of plaintiffs' Complaint, the count for declaratory relief. The prayer of Chowchilla asks that the Court determine which lands are riparian to the San Joaquin river, and are entitled to a reasonable quantity of water for irrigation and domestic uses therefrom, and determine which lands have their underground water strata charged and recharged from the San Joaquin river, and that the Court determine that the lands found to be riparian to, and having their underground waters recharged by, the San Joaquin river shall be entitled to a reasonable quantity of water for beneficial use thereon, for irrigation and domestic purposes, and sufficient waters be allowed to flow in the San Joaquin river to supply said riparian and overlying owners with water by use of reasonable means of diversion from the San Joaquin river, and further prays that certain channel authorization work be done, and a live stream at all times be required to flow between Friant dam and Whitehouse gauging station which shall at no time be greater than five second-feet past the downstream boundary of the lowest riparian owner of said river.
The remaining 12 Irrigation Districts filed a joint Answer, specifically admitting the allegations of plaintiffs' Complaint as to Paragraph X for declaratory relief, and alleging, inter alia, that the United States holds whatever rights it does hold in trust for the use and benefit of answering defendants, among other water users making use of the works of the Central Valley Plan and Project. They deny that the action of the defendants impounding and diverting the water is illegal or unlawful, and allege that the United States holds rights in the waters of the San Joaquin river acquired by purchase, by exchange, by appropriation, and by other means of acquisition in the amount equal to the entire flow of said San Joaquin river. The joint Answer also alleges the various applications made by the State of California, Madera Irrigation District, and others; the assignment thereof to the United States; and that by virtue of the terms of "said assignments" the State of California has become and is the trustor or grantor of an express trust; that the United States has become and is the trustee of that trust; that the landowners acquiring rights to the use of water from the works of the Central Valley Project, including the landowners of defendant districts, have become, and are, *59 the beneficiaries of that trust; that any and all claims or interests of the United States obtained by the "Exchange Contracts" and similar or comparable contracts, and under the assignments hereinabove referred to, are held by the United States as such trustee under said express trust and as a part of a trust fund or res, for the use and benefit of the Central Valley Project, in particular, the landowners of defendant Districts; and that the State of California, as trustor or grantor, and as parens patriae, is entitled to be heard, among other things, as to all matters relating to the administration and execution of said trust by said trustee and entitled to require that the trustee administer said trust according to its true intent and meaning.
The joint Answer of the defendant Districts also alleges that the plaintiffs have no right to the whole flow of the San Joaquin river, nor to any part of the flow of the river in excess of the amounts required to meet their reasonable needs for irrigation and domestic uses, and that the plaintiffs have no right to insist on the uninterrupted use of their diversion devices, and must submit to a physical solution.
The various Districts also answered the Amended and Supplemental pleadings of plaintiffs, in each case incorporating and re-alleging their prior Answers.
The Amended Complaint in Intervention of the State was filed August 11, 1951, by leave of the Court.
The State's Complaint contains a partial description of the Central Valley Project, a recital of some of the legislative history, and mentions what it calls the "Major Engineering features." It alleges the so-called Miller & Lux Purchase and Exchange contracts of July 27, 1939, and in connection therewith, asserts "that the United States acquired certain appropriative and prescriptive rights, contract rights and estoppels against the exercise by said companies and others of riparian and prescriptive rights claimed by them to use for irrigation and other purposes, waters of the San Joaquin river and its tributaries, * * *." It then alleges the filing by the Finance Department of the State of California of applications to appropriate water, and the assignment thereof to the United States, and alleges that by virtue of the said assignments of applications to appropriate water and of the Miller & Lux Purchase and Exchange contracts, the State of California is the trustor or grantor of an express trust; the United States has become and is the trustee of that trust; the landowners who acquire rights to the use of water from the works of the Central Valley Project, including the landowners of defendant Districts, have become and are the beneficiaries of that trust; that the State of California, as such trustor or grantor and as parens patriae, "is entitled to be heard, among other things, as to all matters relating to the administration and execution of said trust by said trustee and entitled to require that the trustee administer said trust according to its true intent and meaning."
It is particularly noted that the State, in its amended Complaint in Intervention, alleges: "That the plaintiffs have no right to insist on the uninterrupted use of their existing diversion devices and must submit to a physical solution whereby their reasonable needs and uses may be supplied; that this Court has the power and duty of requiring a physical solution," and that "* * * it is in the public interest of the People of the State of California that the rights, if any, of the plaintiffs be protected by such a solution if the same is physically possible and feasible." It is further asserted by the State, on information and belief: "that if the San Joaquin river does in fact support, supply, sustain and replenish the underground and percolating waters as described in said Paragraph II (of plaintiffs' Complaint) by seepage, or percolation, the defendants do not have, have not, and do not intend to materially interfere with such seepage or percolation." The State also denies the lands of the plaintiffs contain *60 underground or percolating water supplied by the San Joaquin river.
The State alleges that it is informed and believes, and on the basis of such information and belief, alleges: "that the defendants do, always have, and will continue to, release sufficient quantities of water from Friant dam to make available to the plaintiffs all the water they can reasonably and beneficially use on their land, by reasonable methods of use and by reasonable methods of diversion."
The prayer of the State's Complaint is as follows:
"Wherefore, the intervenor prays:
"(1) That the rights of the plaintiffs and defendants be determined according to the laws of the State of California;
"(2) That the injunction as prayed for in the Complaint be denied and that a physical solution, if possible, be directed;
"(3) That the impairment, if any, of the plaintiffs' rights be declared to be for a public use, and the plaintiffs relegated to their remedy by damages."
The State also filed an Answer to plaintiffs' Complaint wherein it admitted the allegation of Paragraph X for declaratory relief, and the Answer contained many allegations to the same effect as those in the Amended Complaint in Intervention. It is significant that it again alleges it to be the duty of the Court, and in the interests of the People of California and of the plaintiffs, to impose a physical solution, and that such a physical solution is possible and feasible and will be offered by the State. It is of particular significance, in view of the State's contention that the plaintiffs are relegated to damages, that it alleges in that Answer: "that in the event the Court determines that no physical solution is feasible, it is the duty of the Court to relegate the plaintiffs to their remedies, if any, by way of damages." In the prayer to the Answer, the State again prays that the Court make a physical solution.
The plaintiffs filed an Answer to the State's Complaint in Intervention on January 23, 1952, wherein they admitted that the State of California is the technical owner of the water involved, alleging, however, that the State of California holds the water for its inhabitants and "is without power to sell or assign the same." The Answer also alleges that the assignments of applications are void, and that the Central Valley Plan, as provided for in the laws of the State of California, calls for the construction of a hydro-electric plant at Friant dam, and that the same has not been built.
The Court made its order on October 29, 1953, requiring the issuance and service of summons on the Complaint in Intervention of the State of California on all parties, including the United States and defendant officials. Such service was made. Thereafter, the City of Fresno and Tranquillity Irrigation District filed Answers generally asserting the same position they had asserted in their previous pleadings. But the 12 defendant Districts that had previously filed a joint Answer to plaintiffs' Complaint, wherein they asserted it was the power and duty of the Court to impose a physical solution, in their Answer to the State's Complaint in Intervention deny: "that the above entitled Court has the power and the duty of requiring a physical solution in the above entitled action." While these Answers are not responsive to plaintiffs' Complaint, as amended and supplemented, they are exactly contrary to those Answers, and create confusion as to what the real position of defendant Districts is. The defendant Districts participated throughout the trial, and offered evidence in support of the physical solution proposed by the Government.
It is seen that the Answer filed by the Bureau officials, as well as the Complaint in Intervention of the State and the Answers of the defendant Districts, recognize that the plaintiffs and their class have water rights, albeit it is denied that they have the right of the entire flow of the river. But, on the other *61 hand, in other pleadings not responsive to the plaintiffs' Complaint, they deny that the plaintiffs have any rights at all.
At this point it is well to call attention to the fact that the Order of August 29, 1951, which was made with the consent of all parties, provided in Paragraph 12 thereof, that the contending parties submit their proposed plans of physical solution, in the following language:
"12. Plaintiffs, the State of California, and the defendant officials of the Bureau of Reclamation are directed, on or before December 15, 1951, to prepare and serve upon counsel of record for each party hereto their respective plans for a physical solution of the problem of supplying water for irrigation and domestic purposes, (a) to lands heretofore supplied by pumping directly from the San Joaquin river between Friant dam and Gravelly Ford, (b) to lands heretofore supplied by pumping from wells in the San Joaquin river bottoms, and (c) to lands neighboring the river in Madera County and Fresno County, together with such explanatory matter as may in their respective views be necessary for comprehension of such plans."
Thereafter, in December, 1951, before the pre-trial hearing and in compliance with the above-mentioned Order, the plaintiffs, the Bureau officials and the State each filed their respective plans of physical solution. Each of them was later introduced in evidence.
Thereafter, on December 20, 1951, the Court required the parties to file a written statement of their position on the law and the facts. While this Order was made prior to the pre-trial conference, the statements were not filed until the date of the commencement of the trial.
All of the plans for physical solution were before the Court and the parties at the pre-trial conference, called on motion of the State and the Bureau officials, and at the extensive hearings on pre-trial on January 15, 16, and 17, 1952. The result of the pre-trial conference was the pre-trial order of January 17, 1952. The full text of the pre-trial order is set forth as Appendix "B" (page 193 hereof), but the heart of it is contained in Paragraph 4 thereof, which reads as follows:
"4. That said trial will be limited to and relate to the issues framed by the pleadings relating to claims of plaintiffs and the class which they claim to represent, having riparian rights or surface diversion rights to take water from the main channel of the San Joaquin river only between Friant dam and Gravelly Ford, and the claims of plaintiffs and the class which they claim to represent as to underground waters received from the main channel only of the San Joaquin river above its junction with Fresno Slough by lands lying within the exterior limits of the lands described in Exhibit `C' of the Amendment to the Complaint filed July 15, 1951, or within the limits of the so-called alluvial cone or cones shown on plaintiffs' Exhibit `1-52-1,' whichever of said limits are farthest from the main channel of the San Joaquin river."
Statements in the nature of written opening statements were filed as above mentioned by the plaintiffs on January 15, 1952, and by various defendants on January 29, 1952.
The case was tried throughout, not only in the stages before the United States was joined as a party, but thereafter, on the basis of the pre-trial order and the plans of physical solution submitted by the parties as they were modified by amendment during the trial. The pre-trial order was not modified except that the Complaints in Intervention of Tranquillity Irrigation District and the City of Fresno were permitted to be filed during the course of the trial, and the issues raised by them were tried. The case was not tried as a damage or inverse or reverse condemnation case. It was tried throughout, and was treated by all counsel participating therein, as *62 an equity suit for the declaration and ascertainment of the respective rights of the parties to the use of water and such means of enforcing them as would be consistent with applicable law governing present and prospective reasonable and beneficial uses by reasonable methods of diversion.
It was hoped that when briefs were filed all of the parties would attempt to meet the issues as they were framed by the pleadings, as they had been tried by the parties, and indicated by the evidence. But regretfully, the joint briefs filed by the State and certain of the Districts have been of little help, and have only added to confusion of their position. As shortly above noted, the State took the position that the plaintiffs were entitled to the use of water of the river "substantially, but not exactly, as they have enjoyed them," whereas, in the final brief filed by the State, they labor the point that All of the water of the river was intended to be diverted at Friant, leaving the plaintiffs without any water. The brief filed on behalf of the defendant officials does not meet the issues at all, but merely argues abstractly and obliquely as to the alleged invasion by the Court of legislative and executive powers.
The foregoing statement evidences the difficulty of any precise statement of the position of the parties on the various issues.
The Court is thus compelled to distill a definition of issues from the whole case, evidence, pleadings, briefs and arguments, as well as the extraordinary writ proceedings.
The Court, in proceeding to discuss and decide the issues, has hereinbefore and will hereinafter make reference to certain facts which, as heretofore stated, from hearing all of the evidence in the case, are found to be proven by an overwhelming preponderance of evidence.
VI.
Jurisdiction.
While the Court in the Opinion on the Motion to Dismiss90 F.Supp. 773held, that from the pleadings then before it, there was jurisdiction of the subject matter and of the parties then before it, nevertheless, the defendants have raised questions of jurisdiction by answer, which they are entitled to do under the Federal Rules of Civil Procedure.
Thus, the question of jurisdiction must now be settled on the merits as a matter of law and fact from the pleadings and from all of the evidence in the case.
There are five general facets to the question of jurisdiction in this case, viz.: (1) subject matter, (2) the defendant officials, (3) the defendant districts, (4) the State of California, and (5) the United States.
Jurisdiction of:
(1) Subject matter,
(2) Defendant Officials, and
(3) Defendant Districts.
Inasmuch as the question of jurisdiction as to the above-mentioned can be disposed of in one discussion, they will not be dealt with separately.
What is said in connection with jurisdiction applies with relation to the plaintiffs and their class, (members of which are the City of Fresno and Tranquillity Irrigation District), and also applies to the Complaints in Intervention of the City of Fresno and of Tranquillity Irrigation District as to their second causes of action.
The present defendant officials have been regularly and lawfully substituted as defendants under Federal Rules of Civil Procedure, Rule 25(d).
Insofar as the Opinion in D.C., 90 F. Supp. 773 went, on the Motion to Dismiss, the Court adheres to the conclusions therein expressed as a matter of law concerning jurisdiction of the defendant officials and defendant districts and subject matter.
Before discussing the applicable law further, it is now found as a matter of fact from all of the evidence in the case, that the present defendant officials have the same powers and duties *63 under the law as their predecessors had; they, or their predecessors, do now exercise and have exercised the management and control of Friant dam and its appurtenant works, and do determine and control the amount and time of the release of water to be made from Friant dam to the river bed and to the Madera canal and to the Friant-Kern canal without prior approval of such acts by either the Secretary of the Interior or the Commissioner of the Bureau of Reclamation or any other official or officials.
As heretofore noted, this case was removed from the State court by the then defendant officials upon the ground that it was an action of a civil nature arising under the laws of the United States, and that the suit was specifically directed to acts performed or to be performed under those laws by the defendant officials of the United States Bureau of Reclamation in their capacity as agents of the United States, and that the value of the matter in controversy exceeded $3,000, of which suits "the district courts of the United States are given original jurisdiction."
Section 1331 of Title 28 United States Code, is the basic statute conferring general jurisdiction of a suit, the subject matter of which is a Federal question. It provides:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States."
As now commonly understood, a case presents a "Federal question" when it "arises under the Constitution, laws or treaties of the United States."
There has never been any question but that the matter in controversy exceeds the jurisdictional amount.
In a case arising under the Constitution and laws of the United States, with the jurisdictional amount being present, the Court has jurisdiction of the subject matter which is the Federal question. Woods Bros. Construction Co. v. Yankton County, 8 Cir., 1931, 54 F.2d 304-306, 81 A.L.R. 300; Cooper v. Reynolds, 1870, 10 Wall. 308, 77 U.S. 308-316, 19 L.Ed. 931; United States v. Association of American Railroads, D.C. Neb.1945, 4 F.R.D. 510, at page 517.
A United States district court has original jurisdiction, and a case arises under the laws of the United States whenever decision depends on the correct construction of such laws, United States v. "Old Settlers", 1893, 148 U.S. 427, 13 S.Ct. 650, 37 L.Ed. 509, such as when some title, right, privilege or immunity upon which a recovery depends would be defeated by one construction, or sustained by an opposite construction, of such laws. Starin v. City of New York, 1883, 115 U.S. 248, at page 257, 6 S.Ct. 28, 29 L.Ed. 388.
A case presents a Federal question when the rights of either party depend in whole or in part upon the construction of the Constitution or Federal statutes. Chief Justice Marshall said in Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264, 379, 19 U.S. 264, 379, 5 L.Ed. 257: "A case in law or equity consists of the right of one party, as well as the other, and may be truly said to arise under the Constitution or a law of the United States, whenever its correct construction depends on either." (Emphasis supplied). Also see: Patton v. Brady, 1902, 184 U.S. 608, at page 611, 22 S.Ct. 493, 46 L.Ed. 713, and cases there cited, as well as State of Tennessee v. Davis, 1879, 100 U.S. 257, at page 264, 25 L.Ed. 648.
In Ames v. Kansas, 1884, 111 U.S. 449, at page 462, 4 S.Ct. 437, at page 443, 28 L.Ed. 482, the Court said: "* * * to use the language of Chief Justice Marshall in Osborn v. United States Bank, 9 Wheat. [738, at page] 825 [6 L.Ed. 204], an act of congress `is the first ingredient in the case,is its origin, is that from which every other part arises.' The right set up by the [defendants] will be defeated by one *64 construction of these acts and sustained by the opposite construction. When this is so, it has never been doubted that a case is presented which arises under the laws of the United States. Cohens v. [Commonwealth of] Virginia, 6 Wheat. [264] 379 [5 L.Ed. 257]; Gold-Washing & Water Co. v. Keyes, [1877] 96 U.S. [199] 201 [24 L.Ed. 656]; [New Orleans M. & L.] Railroad Co. v. [State of] Mississippi, [1880] 102 U.S. [135] 140 [26 L.Ed. 96]."
In a diversity case, the jurisdiction of the Court is founded entirely on the character of the parties; and the nature of the controversy is not contemplated the character of the parties is everything, the nature of the case nothing. In Federal question cases, the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated; the nature of the case is everything, the character of the parties nothing. Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264, 19 U.S. 264, at page 392, 5 L.Ed. 257.
That is to say, even though the parties to a suit are all citizens of the same State, the Court has jurisdiction if it arises under the laws or Constitution of the United States. Cummings v. City of Chicago, 1903, 188 U.S. 410, 23 S.Ct. 472, 47 L.Ed. 525; Stark v. Payne, D.C. Mont.1921, 271 F. 477, at page 479; Chalmers Chemical Co. v. Chadeloid Chemical Co., C.C.W.Va.1909, 175 F. 995.
Regardless of the source or foundation of the plaintiffs' rights, they allege in their Complaint violations of Federal laws by defendants, and the defendants rely upon various acts of Congress for their authority to impound and divert water at Friant, in derogation of plaintiffs' claimed rights. In the appendix following 90 F.Supp. 773, reference is made to some 30 different Acts of Congress having relation to the issues raised on the motion of the defendant officials to dismiss.
The physical works involved were constructed under the authority of various Acts of Congress, 43 U.S.C.A. § 372 et seq., and statutes cited in appendix to 90 F.Supp. 773. The officials operating such physical works do so under claim or color of authority of the Constitution of the United States and various Acts of Congress.
In a removal case, the question of jurisdiction of the subject matter is to be determined from the Complaint at the time of removal. Great Northern Railway Co. v. Alexander, 1917, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713; State of Minnesota v. Northern Securities Co., 1904, 194 U.S. 48, 24 S.Ct. 598, 48 L.Ed. 870; Houston & Texas Central Railroad Co. v. State of Texas, 1889, 177 U.S. 66, 20 S.Ct. 545, 44 L.Ed. 673; Postal Telegraph Cable Co. v. State of Alabama, 1894, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231; Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962.
As heretofore noted, after removal by the defendant officials, they filed a Motion to Dismiss. The grounds of the Motion were that: the action was one in fact against the United States, asserted to be an indispensable party not consenting to be sued; that the Secretary of the Interior was an indispensable party of which the Court had no jurisdiction; that plaintiffs had a plain, complete, and adequate remedy at law under the Tucker Act for damages; and that the Complaint stated no claim for relief in that defendants' conduct was authorized by various Acts of Congress. In support of these contentions, it was urged that the plaintiffs had no rights to either water or damages on the ground that Friant dam and the attendant works had been constructed by the United States under its constitutional powers to regulate navigable rivers and control floods, by virtue of the Commerce clause. All of these were, and are, substantial questions of primary importance which were postured by the Complaint at the time of removal, requiring the interpretation and application of the Constitution of the United States and various Acts of Congress, including the Reclamation Act of 1902, as amended 43 *65 U.S.C.A. § 372 et seq., to the state of facts set forth in plaintiffs' Complaint, which, under the doctrine of the foregoing cases, gave this Court jurisdiction of the subject matter at the time of the removal.
Nothing has occurred since to cause this Court to lose jurisdiction, and inasmuch as all of the grounds of the Motion to Dismiss are again asserted as special defenses, the Federal questions still remain in the case.
The Court concludes from the foregoing cases that, having jurisdiction of the subject matter, regardless of the lack of diversity of citizenship between the plaintiffs and defendant officials and defendant districts, it acquired jurisdiction over the defendant officials and the defendant districts by either service of process or by their appearance in the case.
As heretofore noted, no motion to remand has ever been made.
If there were any defects in the removal proceedings, they have long since been waived.
In French v. Hay, 1847, 22 Wall. 238, 89 U.S. 238, 22 L.Ed. 854, nearly three years after the case had been removed, a motion to remand was made on the ground that the motion had not complied with the statute. As to this, the Court said, 22 Wall. at page 244: "The objection made in the court below touching the removal of the case from the State court, and which objection has been renewed here, was not made in the court below until testimony was all taken, the case was ready for hearing, and nearly three years had elapsed since the transfer was made. The objection came too late. Under the circumstances it must be held to have been conclusively waived." See also Baggs v. Martin, 1900, 179 U.S. 206-209, 21 S.Ct. 109, 45 L.Ed. 155; American Fire & Cas. Co. v. Finn, 1950, 341 U.S. 6-16, 71 S.Ct. 534, 95 L.Ed. 702; Monroe v. United Carbon Co., 5 Cir., 1952, 196 F.2d 455.
Here, almost eight years have passed since the removal to this Court.[24] The defendant officials and defendant districts answered and participated in a long and extensive trial at great expense to all parties, and the case is now submitted for decision on the merits, so that any defects in the removal proceedings come clearly within the provisions of the last above-cited cases, and have been waived.
Special defenses have been raised by the defendant officials and others that this Court lacks jurisdiction on the ground (1) that the Complaint as amended and supplemented fails to state a claim for relief, (2) that the plaintiffs and the class they represent have an adequate and complete remedy at law, (3) that the United States was, and is, an indispensable party, and (4) that the Secretary of the Interior and the Commissioner of the Bureau of Reclamation were, and are, indispensable parties, and being residents of the District of Columbia, this Court could not acquire jurisdiction over them.
The question as to whether or not the Complaint stated a claim for relief was disposed of in D.C., 90 F.Supp. 773. The court adheres to the conclusion therein expressed, but adds that the Complaint as amended and supplemented, since that Opinion, states claims for relief against all defendants, including the United States.
The special defenses concerning the failure of the plaintiffs to represent a class will be disposed of under the discussion concerning whether or not this is a proper class action.
The question of jurisdiction of the United States, and whether or not it is an indispensable or a necessary party, will be dealt with more fully hereinafter under the heading "Jurisdiction of the United States of America."
*66 With respect to whether or not the Secretary of the Interior and the Commissioner of the Bureau of Reclamation are indispensable parties, the court adheres to the conclusions set forth in D.C., 90 F.Supp. 773, except to add that as heretofore noted, the facts show that the defendant officials are exercising control over the physical works involved, and do make the decision, and control the release of water without prior approval or authority from either the Secretary of the Interior or the Commissioner of the Bureau of Reclamation. All the contracts for water service, except one, were executed on behalf of the United States by the predecessor in office of the defendant, Spencer. The predecessor was then designated "Regional Director, Region 2, Bureau of Reclamation." Spencer's duties and powers are the same as his predecessor.
Neither the Secretary of the Interior nor the Commissioner of the Bureau of Reclamation are indispensable or necessary parties to the relief sought in this case as against either the defendant officials, the defendant districts, or the United States.
The defendant districts also make the point that this Court has no jurisdiction over them because there is no Federal question present. What has been said concerning the existence of the Federal question is equally applicable to the defendant districts.
Although not analytically briefed or argued, a point has been raised to the effect that when the United States was joined as a defendant, this Court lost jurisdiction of some or all of the defendants.
Having jurisdiction of the subject matter, that jurisdiction was not lost by joining the United States if the United States has consented to be sued. The case is still one arising under the Constitution and laws of the United States. Jurisdiction rests on the presence of a Federal question and was obtained as to the parties, without regard to the citizenship or character of the parties, by service of process or appearance in the case, and this jurisdiction obviously continued though the United States was joined.
The contention of the defendants that the Court lost jurisdiction of defendant officials when the United States was joined is really but another way of saying that the joinder of the United States was improper. Thus, the question is solved by the determination as to whether the United States was properly joined, which question is subsequently treated.
It is concluded on this phase that the Court has jurisdiction of the subject matter, the defendant officials, and the defendant districts.
VII.
Jurisdiction of the State of California.
As heretofore noted, the State of California originally intervened to compel a flow of water to sustain fish life in the river. At that time the State sought affirmative relief. Thereafter, the State abandoned its position, and withdrew its request for an injunction. Subsequently, the State of California voluntarily filed its Amended Complaint in Intervention wherein it appeared in its "sovereign, governmental and proprietary capacities in its own interest, and for the protection of its own rights; also as parens patriae, in the interest of and for the protection of, all its citizens, residents, landowners and water users, and its agencies, the defendant districts, and to protect the integrity and proper application of its constitution and laws respecting water and the use thereof, water rights, contracts, property and property rights; also as trustor of express trust," and also "as absolute owner of the corpus of the water."
It must also be pointed out, to clearly understand the status of the State in this suit, that it is not a party defendant. It is true that in the Amended and Supplemental Complaints of the plaintiffs, and the City of Fresno and *67 Tranquillity in their separate Complaints in Intervention filed in August, 1953, the State is designated as a party defendant. However, this occurred during the course of trial, and no motion under the Federal Rules of Civil Procedure, Rule 21, to add the State as a defendant was ever made, and leave of Court was never obtained. It follows that the State is not a party defendant, despite its sometimes designation as such in the pleadings.
It participated in the trial throughout and in all of the proceedings had after August 11, 1951. It produced witnesses and voluminous other evidence to support its theories, and examined and cross-examined all witnesses on a multitude of subjects over long periods of time in support of its various contentions.
The intervention for the State of California was filed by the law officer of the State generally authorized to appear in lawsuits involving the rights and interests of the State, and specifically authorized to institute an action concerning property in which the State claims an interest. People v. Birch Securities Co., 1948, 86 Cal.App.2d 703, 196 P.2d 143, certiorari denied 336 U.S. 936, 69 S.Ct. 745, 93 L.Ed. 1095; Pierce v. Superior Court, 1934, 1 Cal.2d 759, 37 P.2d 453, 460, 96 A.L.R. 1020; People v. Oakland Water Front Co., 1897, 118 Cal. 234, 50 P. 305; People of State of California v. United States, 9 Cir., 1950, 180 F.2d 596, certiorari denied 340 U.S. 826, 71 S.Ct. 61, 95 L.Ed. 607; California Constitution, art. V, Sec. 21; California Government Code, Sections 12510-12522. The appearance in intervention was not of a limited or temporary nature, but could not have been broader and more all-inclusive.
It, thus, having voluntarily come into the case, of which this Court was then vested with jurisdiction, originally seeking affirmative relief, it waived its sovereign immunity and submitted itself to the jurisdiction of the Court. Clark v. Barnard, 1883, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780; State of Puerto Rico v. Ramos, 1914, 232 U.S. 627, 34 S.Ct. 461, 58 L.Ed. 763; State of Missouri v. Fiske, 1933, 290 U.S. 18, 54 S.Ct. 18, 78 L.Ed. 145; Gunter v. Atlantic Coast Line Railway, 1906, 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477; Gardner v. State of New Jersey, 1947, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504. Even in Hans v. State of Louisiana, 1890, 134 U.S. 1, 10 S.Ct. 504, 509, 33 L.Ed. 842, strongly relied on by the State, the Court held that a State consents and is subject to a judgment if it comes voluntarily into court, and stated: "To avoid misapprehension, it may be proper to add that, although the obligations of a state rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the state consents to be sued or comes itself into court, * * *." (Emphasis supplied.)
It should also be stated, that the general proposition of law is well established that when an intervenor comes into a case of which the Court has jurisdiction, it accepts the proceedings as it finds them at the time of the intervention, and is considered for all intents and purposes as one of the original parties. Galbreath v. Metropolitan Trust Co., etc., 10 Cir., 1943, 134 F.2d 569; Piccard v. Sperry Corporation, D.C.N.Y. 1941, 36 F.Supp. 1006, affirmed 2 Cir., 120 F.2d 328; In re Raabe, Glissman & Co., D.C.N.Y.1947, 71 F.Supp. 678; Godfrey L. Cabot, Inc., v. Binney & Smith Co., D.C.N.J.1942, 46 F.Supp. 346. In Rector v. United States, 8 Cir., 1927, 20 F.2d 845-859, the Court said: "By that intervention she became a party to the action clothed with all the rights, burdened with all the duties and subject to to all the legal consequences inhering in such status. French v. Gapen, [1881] 105 U.S. 509, 525, 26 L.Ed. 951; Swift v. Black Panther Oil & Gas Co., [1917] 244 F. 20, 29, this court; Hamlin v. [Toledo, St. L. & K. C.] R. Co., 6 Cir., [1897] 78 F. 664, 666, 36 L.R.A. 826, Circuit Judges Taft and Lurton sitting, the opinion by Judge Lurton. One of the legal consequences was that she (as all other parties to the action) would be bound by all orders properly made thereafter *68 in the litigation. One of the legal rights was to object and to be heard upon all matters affecting her rights and, at some time, to have reviewed on appeal any order she deemed to her prejudice."
Original jurisdiction of a suit wherein either a State, the United States, or both, are or may become parties is not exclusive with the Supreme Court. Congress has the power to confer jurisdiction on an inferior Court. Bors v. Preston, 1884, 111 U.S. 252, 4 S.Ct. 407, 28 L.Ed. 419; Ames v. State of Kansas, 1884, 111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482; State of Minnesota v. United States, 8 Cir., 1942, 125 F.2d 636, 639; United States v. State of Louisiana, 1887, 123 U.S. 32, 8 S.Ct. 17, 31 L.Ed. 69; United States v. State of California, 1936, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567; People of State of California v. United States, 9 Cir., 1950, 180 F.2d 596, certiorari denied 340 U.S. 826, 71 S.Ct. 61, 95 L.Ed. 607; United States ex rel. Charley v. McGowan, D.C.Wash. 1931, 2 F.Supp. 426, affirmed 9 Cir., 62 F.2d 955, 290 U.S. 592, 54 S.Ct. 95, 78 L.Ed. 522; United States v. Gas & Oil Development Co., D.C.W.D.Wash.1954, 126 F.Supp. 840.
In Ames v. State of Kansas, supra, the State of Kansas filed suit in its courts. The case was removed to the Federal court which remanded it to the State court. The Supreme Court reversed the order of remand on the ground that there was a Federal question which gave the Federal courts jurisdiction, under what is now 28 U.S.C.A. § 1331.
As heretofore noted, this Court had original jurisdiction under 28 U.S. C.A. § 1331, and the case was properly removed, at the time the State intervened.
That being so, the mere joinder of the United States did not deprive this Court of jurisdiction of the State.
Whether or not the United States was properly joined under 43 U.S.C.A. § 666 is a question which will shortly be discussed.
The State, in essence, contends that no relief can be given against the State because the State, while voluntarily intervening, has not consented to be sued. The plaintiffs ask no affirmative relief against the State. The plaintiffs do seek a declaration of the rights of the parties; so does the State, and, admitting that a dispute exists between the other parties to the action as to their respective rights to the use of water, the State asks a judicial declaration and determination of those rights. The plaintiffs seek a physical solution. The State asserts that it is the duty of the Court to impose its own physical solution in event none of the physical solutions proposed by the various parties are, in the judgment of the Court, consistent with the California requirements of reasonable use and against waste. The State contends that the plaintiffs' claim of right to the entire flow of the river would contravene the Constitutional prohibition against waste of water.
Though the State submitted a different plan of physical solution than either the plaintiffs or defendant officials, the fact that the Court might conclude that some other plan of physical solution than that submitted by the State should be adopted would not, in itself, amount to a judgment against the State. The State specifically asserted it was the duty of the Court to impose its own plan of physical solution, if the Court should find that those proposed by the parties was not consistent with the requirements of reasonableness of California law. For the State to now contend that the Court has no jurisdiction to impose a physical solution, other than the one it proposed, is tantamount to saying that the Court has no jurisdiction to do other than what the State wants done.
As noted, the State has prayed that the rights of the plaintiffs and defendants to the use of water be judicially declared by this Court. In making such a declaration, the Court is not giving relief for or against the State since it is not the rights of the State that are being *69 judicially settled. The sole purpose of the amended intervention by the State was stated to be the vindication of its laws relating to the use of water, and thus to protect its natural resources by requiring compliance with the California Constitution and laws by all parties to this proceeding. It is this interest of the State which has entitled it to be heard.
When the law of the State of California is applied to the rights of the other parties to this case, and a judgment made declaring them, together with appropriate provisions for enforcing those rights, then the interest of the State is at an end. That is what is done here. The Constitution and laws of the State of California will in this manner be vindicated.
Thus, it is the conclusion of the Court that it has jurisdiction of the State on the basis of its original intervention, but that no relief for or against the State is required or is possible under the pleadings and issues which show an actual litigable controversy only among the parties other than the State.
A judgment of dismissal will be made of the State's Complaint in Intervention.
The ancillary proceedings of the City of Fresno against the State Engineer of California and others to restrain hearings on applications to appropriate water will be treated under the heading "City of Fresno."
VIII.
Jurisdiction of the United States.
The order joining the United States as a party was made on September 18, 1953.
Except for filing a Motion to Dismiss, which was denied on January 30, 1954, the United States has since that time boycotted the litigation. Although, as heretofore noted, a Special Assistant to the Attorney General appeared and actively participated throughout the trial and all other proceedings herein until July 12, 1953, no Answer or other responsive pleading has been filed in the name of the United States, nor has any appearance been made at any hearing, or on the reopened trial, since July 12, 1954, either on behalf of the United States or any of the defendant officials, despite the failure in the Prohibition proceeding of 1954 to secure vacation of the Order dated September 18, 1953, joining the United States, and of the Order of January 30, 1954, overruling the Motion of the United States to dismiss, and ordering it to answer, the vacation of which were specifically sought.[25]
No brief has been filed on behalf of the United States, and the brief filed by the Special Assistant to the Attorney General of the United States on behalf of the defendant officials makes no pretense of meeting the issues. It is of such a nature, in fact, that the Court would be warranted in striking it, and requiring a proper brief to be filed.[26] But such *70 procedure would only further delay a decision in this case.
In order, therefore, to ascertain the position of the Attorney General of the United States, it is necessary to gather it from the pleadings, the memoranda and briefs heretofore filed, and from various "Suggestions", see D.C., 16 F.R.D. 310, which have been filed from time to time, as well as from briefs filed in the two Writ proceedings. Even so, the position of the Attorney General of the United States on the issues in this case is exceedingly vague.[27] The position of the State of California has changed several times, and indicates that the Attorney General of California is uncertain, either as to policy he wishes to adopt, or the stand he wishes to take as to the law.[28]
Nevertheless, it is the duty of the Court to examine the question of jurisdiction over the United States.
Involved in this question are Rules 19, 20 and 21, as well as Rule 1, of the Federal Rules of Civil Procedure, and S. 18, the Act of July 10, 1952, 43 U.S.C.A. § 666. Before discussing the provisions of the Rules, it is best to go at once to a consideration of S. 1843 U.S.C.A. § 666, as it is under that Statute that the waiver of sovereign immunity, if it exists in this case, must be found.
The text of S. 18, the Act of July 10, 1952, in full, is as follows:
43 U.S.C.A. § 666
"(a) Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.
*71 "(b) Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.
"(c) Nothing in this Act shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream."
By statute, consent is given to join the United States in any "suit." There are qualifications, which will shortly be discussed.
The word "suit" has such a common and accepted meaning that it would seem unnecessary to discuss it. But one of the quondam contentions of the defendants is that the word "suit" as used in Section 666 means only administrative proceedings under various State laws. So, it is first necessary to determine what is meant in the Act of Congress by the word "suit."
Courts have been called upon many times to define a "suit."
Said Chief Justice Marshall in Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264, at page 405, 5 L.Ed. 257: "What is a suit? We understand it to be prosecution or pursuit of some claim, demand or request; in law language, it is the prosecution of some demand in a court of justice." Speaking also in Weston v. City Council of Charleston, 1820, 2 Pet. 449, at page 464, 7 L.Ed. 481, he said: "The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit."
The definitions framed by Chief Justice Marshall of the word "suit" have been consistently and universally followed since. It would be supererogation to cite all the cases approving it. Upshur County v. Rich, 1890, 135 U.S. 467, at page 474, 10 S.Ct. 651, 34 L.Ed. 196, collects the authorities. State of Missouri v. Fiske, 1933, 290 U.S. 18, at page 26, 54 S.Ct. 18, 78 L.Ed. 145, quotes with approval the above definition from Cohens v. Commonwealth of Virginia, as does Federal Housing Administration, etc., v. Burr, 1940, 309 U.S. 242, at page 246, 60 S.Ct. 488, 84 L.Ed. 724. In Upshur County v. Rich, 1890, 135 U.S. 467, 10 S.Ct. 651, 34 L.Ed 196, the Court held that proceedings before executive or administrative officers or bodies are not suits. The word "suit" does not include a proceeding before a State Water Board, of so-called adjudication of water rights on a stream. In the case of In re Silvies River, D.C.Or.1912, 199 F. 495, a so-called adjudication proceeding under the laws of Oregon, similar to provisions in the law of California, was removed to the Federal court, but it was remanded on the ground that such a proceeding was not a suit. A similar situation arose, and the same holding was made by the Supreme Court, in Pacific Live Stock Co. v. Lewis, 1916, 241 U.S. 440, at page 446, 36 S.Ct. 637, 60 L.Ed. 1084, where the Court cited with approval the Silvies case, supra.
In Bowers v. New York & Albany Lighterage Co., 1927, 273 U.S. 346, 47 S.Ct. 389, 71 L.Ed. 676, the Court had under consideration provisions of a revenue Act which contained a time limitation on a "suit or proceeding." The petitioner contended that the word "proceeding" was synonymous with the word "suit." As to that the Court said, 273 U.S. at page 349, 47 S.Ct. at page 390: "There are two methods to compel payment. One is suit, a judicial proceeding; the other is distraint, an executive proceeding. The word `proceeding' is aptly and commonly used to comprehend steps taken in pursuit of either. There is nothing in the language or context that indicates an intention to restrict its meaning, or to use `suit' and `proceeding' synonymously."
*72 If there were any question about the meaning of the word "suit" as contained in the first clause of Section 666, it is eliminated by an examination of the rest of the section. Clause (2) of the second sentence of subdivision (a) provides that the United States "shall be subject to the judgments, orders, and decrees of the court". It further provides that no judgment for costs against the United States can be entered in any such suit. A judgment can only be entered in a judicial proceeding.
Subdivision (b) provides for service of summons or other process in any such suit. Summons is universally understood to be the process issued by a court upon the commencement of a suit, and service of it is required to give the court jurisdiction to enter a judgment, after trial, or by default, if the defendant does not appear. 72 C.J.S., Process, § 1(2). Process, while including summons also, on the other hand, may precede or follow a judgment in civil actions, such as Writ of Execution, Federal Rules of Civil Procedure, Rule 69, attachment and sequestration, Federal Rules of Civil Procedure, Rule 70, or other formal writings and commands such as injunctions, writs of habeas corpus, mandamus, and the like. In California, California Code of Civil Procedure, Section 17, subdivision 6, provides that "The word `writ' signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer; and the word `process' a writ or summons issued in the course of judicial proceedings".
The Federal Rules of Civil Procedure, by Rule 4, provide for the issuance and service of summons. It is significant that that Rule is entitled "Process."
Moreover, subdivision (c) of Section 666, Title 43 United States Code Annotated, prohibits the joining of the United States in any suit, or controversy, in the Supreme Court of the United States, involving the rights of States to the use of water in interstate streams. Obviously, the word "suit" in subdivision (c) has the same meaning as the word "suit" in subdivision (a). It can hardly be said that a proceeding in the Supreme Court of the United States is an administrative proceeding, or anything other than a suit.
It cannot be doubted that in this case, the plaintiffs are prosecuting their claims and demands in a court of justice for the establishment and enforcement of their rights to the use of water, and are thus pursuing such remedies as the law affords them. It is thus a "suit" as contemplated by Section 666.
Proceeding with a further analysis of the section, it is appropriate to refer to one of the other contentions of the defendants, that inasmuch as plaintiffs seek, among other things, in personam relief by way of an injunction against defendant officials and others, no adjudication of water rights is required, and that, hence, this is not a suit contemplated by Section 666.
Does the present suit qualify as one for "the adjudication of rights to the use of water of a river system or other source"?
The nature of the relief which might ultimately be granted on a determination that the plaintiffs have rights to use water which have been invaded by the defendants is not controlling. The question is: "Does the suit require an adjudication of water rights?" Here the very essence of the suit is a claim of right to have and use water as it flowed in the San Joaquin river. That claim must be judicially determined before the matter of the relief to be granted is reached. Whatever relief can be granted with or without the United States as a partyan adjudication of the existence vel non of water rights in the plaintiffs would in any event be necessary to the granting of any relief. The essential and primary ingredient in this case is the determination and adjudication of water rights. The fact that this suit may require a determination as to whether or not the impounding and diversion of water is unlawful does not make it any the less a suit for the adjudication of water rights. This, because *73 the lawfulness of the diversion and impoundment is dependent on whether or not existing water rights are respected as required by the Federal statutes, as well as California law. The basic problem has always been the ascertainment of those rights.
Before any judgment is entered prescribing the means for the enforcement of rights, there must be an adjudication that a party has rights. For instance, in the ordinary quiet-title suit, which is an action in rem, the court adjudicates the rights of the parties to the property in question. If it quiets the title in the plaintiff, it enters a decree to that effect and it also issues an injunction which is, in effect, a decree in personam against those asserting rights contrary to the rights of the plaintiff; and, in such case, there may also be a Writ of Ejectment, which also acts in personam. While such a case is a suit in rem, at the same time, one of the means of enforcing it is a decree in personam. Moreover, in the ordinary suit for injunction, it is incumbent upon the Court to first determine the rights of the parties. If it determines that the plaintiffs have rights, either in rem or in personam which have been invaded, it makes its judgment and declaration to that effect, and may issue an injunction. The injunction operates in personam, but there is always first the adjudication that a party has a right.
In California, the rights to the use of water are part and parcel of the land to which they are appurtenant. And while this is not a quiet-title suit in the sense that an individual seeks to quiet the title to the use of a quantity of water measured in miner-inches, second-feet, or acre-feet for a specific parcel of real property, the case, nevertheless, partakes of the nature of a quiet-title suit in that the plaintiffs and their class assert a common right to a flow of water in the stream, which is asserted to be the common source of supply.
In this suit, the plaintiffs and their class assert that they have rights to the use of water of the San Joaquin river; the defendant officials assert that the plaintiffs and their class do not have the rights they claim; the districts who are defendants assert that they have certain rights; and it is asserted that the United States owns the fee title to the water. These different assertions plainly present a suit for adjudication of water rights, regardless of the form of decree enforcing those rights.
The Answer of defendant officials, the defendant districts, and the Complaint in Intervention of the State prayed for "adjudication" of those water rights.
And the Court of Appeals in the 1954 Extraordinary Writ proceedings9 Cir., 213 F.2d 818pointed out that basically this case was for the adjudication of water rights.
It is also contended that by the use of the words "adjudication" or "administration" in Section 666, Congress contemplated only administrative proceedings before State administrative bodies.
By common understanding, the word "adjudicate" means determination by a court or judge in a judicial proceeding. It requires a judgment or a decree by a court. Goldwyn v. United Artists Corp., 3 Cir., 1940, 113 F.2d 703-706. And in view of the meaning of the word "suit," the words "adjudication" or "administration" of rights in a "suit" as used in this section clearly contemplate judicial action.
Considering next, the phrase "(2) for the administration of such rights," does the term "administration" show that the section does not contemplate judicial proceedings?
In the first place, it is noted that the suit may be one for adjudication or administration. As set forth above, the adjudication of rights in a "suit" contemplates judicial action.
In the second place, courts of equity, to carry out a decree of adjudication of water rights, have traditionally undertaken the administration of water rights. For instance, the decree in State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. *74 1815, was actually a decree not only adjudicating water rights, but also for the administration of those water rights. State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, at page 616, 65 S.Ct. 1332, 89 L.Ed. 1815; see also Union Mill & Mining Co. v. Dangberg, 9 Cir., 1897, 81 F. 73; Conrad Investment Co. v. United States, 9 Cir., 1908, 161 F. 829; Pacific Live Stock Co. v. Hanley, 9 Cir., 1912, 200 F. 468; Gila Valley Irrigation District v. United States, 9 Cir., 1941, 118 F.2d 507; Vineyard Land & Stock Co. v. Twin Falls S. R. L. & W. Co., 9 Cir., 1917, 245 F. 9.
Historically and traditionally, courts of equity may adjust their remedies to circumstances of cases and formulate them appropriately to safeguard and conveniently to adjudge and promptly enforce substantial rights of all parties before them.
After all, the appointment of a Watermaster by a court for the enforcement of its decrees is essentially no different than the exercise of the power of the court to appoint a receiver, such as for railroads and the like. The United States has sought and obtained such appointment. In 1930 a judgment was entered in United States v. Angle, et al., No. 30 Equity, by the United States District Court for the Northern District of California, adjudicating water rights on Stoney Creek, and appointing a Watermaster to enforce the decree. The court-appointed Watermaster is still functioning and the judgment is still open and has been modified from time to time. Contempt proceedings have been had from time to time for violation of the decree, including failure to pay the fees of the Watermaster. Other similar cases have occurred in other Districts in other States. In Montezuma Canal Co. v. Smithville Canal Co., 1910, 218 U.S. 371, 31 S.Ct. 67, 54 L.Ed. 1074, the Court approved a decree appointing a Watermaster with broad powers.
Thus, there is embodied in the phrase and term "administration" nothing new or inconsistent with the power of a court of equity. No inference is to be drawn that the use of the phrase "for the administration of such rights" imports exclusively the functions of an administrative body. Especially so, when the phrase is considered with the language of the whole Section. The phrase must be understood in the context of the entire statute in which it appears.
There are several reasons, other than hereinbefore set forth, for concluding that Section 666 does not contemplate that statutory administrative adjudication proceedings should be the exclusive proceedings in which the United States can be joined as a party, if the statute applies in such proceedings at all.
But, in any event, an examination of the California laws relating to adjudication of water rights demonstrates that the administrative procedure set up in the California Water Code is merely optional and not exclusive.
Sections 530 and 534 of the California Code of Civil Procedure have special provisions relating to actions for the determination of water rights and the prevention by injunction of diversion, diminution or increase of flow water. Furthermore, it must be remembered that California law permits suits to quiet title to either real or personal property. As heretofore seen, water rights are part and parcel of the land in California and are real property. Numerous cases have been brought in the California courts which resulted in judgments quieting title to water rights, and enjoining interference with such rights.
The provisions of Division 2, part 3 of the California Water Code, entitled "Determination of Water Rights", are obviously not exclusive, as Sections 2000 and 2076 relate to references to the State Division of Water Resources, Department of Public Works "In any suit brought in any court of competent jurisdiction in this State for determination of rights to water". Thus, it is apparent that the "Statutory Adjudication" procedure set up in Chapter 3 of Division 2 of the California Water Code is one that *75 may be invoked at the option of an owner of water rights, but it is not compulsory upon anyone to invoke it before filing a suit for the determination of their rights to water. If it were compulsory and a preliminary prerequisite to a suit, then the United States, the defendant officials, defendant districts and the State should have long ago invoked it. It is clear from even a cursory examination of the California Water Code that a proceeding before the State Department of Public Works, Division of Water Resources, is not a suit.[29]
It is claimed that the use of the words "river system" in Section 666 further supports their contention. In the first place, Section 666 permits adjudication of rights to the use of waters of a river system "or other source". In the second place, the defendants attempt to define the San Joaquin river "system" as including not only the San Joaquin river, but also all the rivers in the Central Valley from the Delta on the north to the Grapevine on the south. They are: the Stanislaus; the Tuolumne; the Merced; the Chowchilla; the Fresno; the Kings; the Kaweah; the Tule; the Poso; and the Kern, and all intermediate creeks, streams, and flows of water. This area covers millions of acres of lands, and there are thousands of wells and diversion devices on thousands of separately owned parcels of land. It is preposterous that the so-called State administrative method is the exclusive procedure applicable to such a situation or was the exclusive procedure Congress had in mind when it passed Section 666 permitting the joinder of the United States in any suit for the adjudication or administration of water rights.
Furthermore, Section 666 applies throughout the United States. It is a statute of general application, in every State, whether that State has an administrative procedure for the so-called statutory adjudication of water rights or not. If State administrative bodies were the exclusive forum intended by Congress in passing Section 666, a ridiculous result would occur. In States not having such administrative procedure, a party seeking adjudication of rights to the use of water under Section 666 could not join the United States, and there would, in fact, be no remedy against the United States in such States, while there would be in others.
There is one additional reason to support the foregoing conclusions, and that is that the judicial power of the United States courts extends under Article III, Section 2 of the United States Constitution to suits to which the United States is a party. To hold that the State administrative procedure is exclusive, would be to hold that Congress intended not only to waive sovereign immunity, but also intended to deprive the United States of the right to be sued in its own courts. In effect, such a holding would be to negate not only the statutes conferring original jurisdiction on United States courts, but also all the provisions in the statutes for removal of causes from State courts where the interests of the United States are concerned, or where it is a party, or where a Federal question is involved.
The next requisite for joinder of the United States is that the suit be one "where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise".
The recital of facts earlier in this Opinion should be ample to show that this requirement is met, but to dispel any doubts, the status of the United States in this regard will be briefly recapitulated.
First, the previously described applications by the United States to appropriate *76 water are surely intended to result in water rights of some character in the United States. The precise nature of any water rights which might result from the perfection of these applications under the law of California is not important at this point, but it is enough to fulfill this requirement of Section 666 that the United States is in the process of attempting to acquire water rights by applications to appropriate.
Second, the so-called Miller & Lux Purchase and Exchange contracts, previously described, have been entered into. By those contracts, the United States obtained water rights of some character; at least as against the parties with whom it contractedregardless of any lack of rights acquired against plaintiffs herein or others. The true nature of those rights as against the plaintiffs and their class is involved in this case. Thus, if necessary, the requirement that the United States has acquired water rights of some nature on the San Joaquin river is met in this regard.
Third, the United States has impounded water. Possession may be the beginning of ownership. It is asserted that, among other things, the United States has acquired rights by prescription. Whether or not this is or can be so, and the nature of the prescriptive right and its limitations, is not important at this point. It is enough for this statute that the United States may be attempting to acquire some prescriptive right to the use of water involved in this litigation.
The requirement that the United States be the owner of, or in the process of acquiring, water rights of some nature concerned in the suit, is clearly and indisputably met in this case.
Another condition of joinder of the United States is that the United States be a "necessary" party to such suit.
Defendants have argued from the outset, and defendants and the United States contended in the 1954 Writ proceedings9 Cir., 213 F.2d 818that the United States is an indispensable party. This Court held in 90 F.Supp. 773 that the United States is not an indispensable party.[30] Thereafter, this Court proceeded in accordance with the rule laid down in Barney v. City of Baltimore, 1867, 60 Wall. 280, 73 U.S. 280-284, 18 L.Ed. 825, that when the Court does not have jurisdiction of a party who may have an interest in the lawsuit, the Court: "will proceed to administer such relief as may be in its power, between the parties before it." At that time, this Court did not have and could not secure jurisdiction over the United States because no consent to be sued had been granted by a Congressional Act.
The Court now adheres to the conclusion that the United States was not and is not an indispensable party. The Court did not, in permitting the joinder of the United States as a party under Section 666, hold that the United States was an indispensable party, but from all of the files and records and evidence in the case at the time the Motion was granted, and *77 in view of the then existing Congressional consent to be sued, the holding is that the United States is a necessary party in order to give complete relief among those already parties, and that the United States could be joined without ousting the Court of jurisdiction.
Whether the United States or the defendants now concede that the United States is a necessary party is not disclosed in any of the briefs or proceedings in this court, or in the two Writ proceedings in the Appellate Court. How it can be contended that the United States is an indispensable party, but at the same time, not a necessary party, is not clear, as parties who are indispensable parties are also necessary parties, but necessary parties are not always indispensable parties.
The distinction between necessary and indispensable parties has long been established.
In Shields v. Barrow, 17 How. 129, 15 L.Ed. 158, the question was fully discussed.
In State of Washington v. United States, 9 Cir., 1936, 87 F.2d 421, at page 425, the Court said: "Classification of Parties. In Shields v. Barrow, 17 How. 129, 58 U.S. 129, 139, 15 L.Ed. 158, it is said: `The court here points out three classes of parties to a bill in equity. They are: 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.'"
After pointing out that it was essential to maintain these distinctions, the Court, 87 F.2d at page 427, said: "The classification, thus made, and the proper distinctions, are not always verbalized or clearly made in the cases, for an examination of the many cases shows that often the word `necessary' is used, when the word `indispensable' would be the proper classification under the foregoing rules. Necessary parties under the above classification have been referred to as `conditionally necessary' parties, and `indispensable parties' under such classification have been referred to as `unconditionally necessary' parties. In using the words `necessary' and `indispensable' hereinafter, we mean that `necessary' parties are those of the second class, or `conditionally necessary,' and we mean that `indispensable' parties are those of the third class or `unconditionally necessary.'"
Rule 19(b) of the Federal Rules of Civil Procedure provides, in part, as follows:
"When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue and can be made parties without depriving the court of jurisdiction of the parties before it, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them as to either service of process or venue can be acquired only by their consent or voluntary appearance or if, though they are subject to its jurisdiction, their joinder would deprive the court of jurisdiction of the parties before it; but the judgment rendered therein *78 does not affect the rights or liabilities of absent persons."
While this language does not attempt to define who are necessary parties, it is manifest that it distinguishes between indispensable and necessary parties. Necessary parties, in effect, are those who are not indispensable parties, but "who ought to be parties if complete relief is to be accorded between those already parties".
Rule 20 deals with the permissive joinder of parties and provides that a plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded, and that judgment may be given against one or more defendants according to their respective liabilities.
In Barron & Holtzoff Federal Practice and Procedure, Section 511, it is said with respect to Rule 19:
"Rule 19 deals with necessary and indispensable parties.
"Indispensable parties are those without whom the action cannot proceed. They must be joined even if by such joinder the court loses jurisdiction over the controversy.
"`Necessary parties' are those who have an interest in the controversy but whose interests are separable and will not be directly affected by a decree rendered in their absence, which does full justice between the parties before the court.
"The term `necessary parties' is a misnomer. It does not mean `essential parties.' Rather it means `desirable parties' as distinguished from indispensable parties, on the one hand, and from proper parties, on the other hand. It means `parties who should be joined, if feasible.' It has been suggested that `conditionally necessary' may be a preferable term, and the New York Civil Practice Act, § 193, has adopted that term and classifies parties as conditionally necessary and indispensable. However, the term `necessary parties' has acquired a definite meaning in federal law. It has been used in the decisions of the Supreme Court and other federal courts for over a century. To substitute another term, even if it be more accurate, might prove confusing, especially in connection with a reading of decided cases.
"Necessary parties must be joined if they ought to be parties in order to afford complete relief between those already parties, and if they are subject to the jurisdiction of the court both as to venue and service of process, and can be made parties without depriving the court of jurisdiction of the parties already before it. Necessary parties who are not subject to the jurisdiction or venue of the court, or cannot be served with process, or whose joinder would deprive the court of jurisdiction of the parties before it, need not be joined, and the action may proceed without them."
To the same effect see Commercial Casualty Ins. Co. v. Lawhead, 4 Cir., 1933, 62 F.2d 928, 931, certiorari denied 289 U.S. 731, 53 S.Ct. 527, 77 L.Ed. 1480; State of Minnesota v. Northern Securities Co., 1902, 184 U.S. 199, 235, 236, 22 S.Ct. 308, 46 L.Ed. 499; and the recent case of United States v. Aetna Casualty & Surety Co., 1949, 338 U.S. 366, 382, 70 S.Ct. 207, 94 L.Ed. 171, 186.
The United States is a necessary party to the doing of complete relief, though it would not be an indispensable party to the obtaining of relief only against the defendant officials.
The contention was made on the Motion to Dismiss in 1950 that the United States had taken the water by its power to regulate navigable streams under the Commerce clause of the Federal Constitution. That contention was rejected by this Court in its ruling on the Motion to Dismiss, 90 F.Supp. 773, and was also rejected by the Supreme Court in United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231. The Court there held that the Central Valley Project and each unit of it was *79 undertaken and operated under the Reclamation laws, requiring the recognition of water rights measured by and existing under State law. The Answers filed by the defendant officials and by all other defendants concede that. But as the case developed, broad and unlimited claims of ownership in the government of the water and rights to its use were, nevertheless, made. Since the duty was imposed on the defendant officials, of respecting water rights vested by the Reclamation Act according to State law, it is obvious that it becomes necessary for the Court to decide, in ascertaining whether this duty had been breached, whether the plaintiffs had rights to water which were in fact superior to the rights of the government, for whom the defendant officials purported to act. In Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525, the Supreme Court sustained the use of a Court's injunctive process to enforce water rights, though in doing so, it necessarily decided that the United States did not own the water, i. e., it decided rights of the United States when it was not formally and technically a party to the suit. In granting relief in this case against the defendant officials alone without the United States as a party, a decree would not be res judicata against the United States. Complete relief, and the settling of this question for all time, required that the United States be made a party when that became possible. The relief to be had may not be the same against the United States as against the defendant officials, though the question to be determined remains the same.
Thus, though the United States has never been an indispensable party to the injunctive relief sought on account of the alleged wrongful invasion by the defendant officials of the vested water rights of the plaintiffs, a complete settling of the basic controversy entails an adjudication of relative water rights. To this relief the United States is a necessary party.
The defendants rely in this connection upon Larson v. Domestic & Foreign Commerce Corporation, 1948, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628. While that case contains a general discussion of the right to sue an agent of the sovereign, it turns solely upon the question as to whether or not the actions of the particular government officials therein involved were, in truth and in fact, the acts of the sovereign which was an indispensable party and had not consented to be sued. The action was on a contract for the sale of coal, and the Court simply held that under the terms of the contract, injunctive relief would not be granted to compel the delivery of the coal without joinder of the sovereign, and that the sovereign had not consented to be sued, in that instance, and was an indispensable party. The situation is not at all analogous to the situation in this case where Congress, by the Act of July 10, 1952, 43 U.S.C.A. § 666, consented that the United States can be sued, and has commanded for many years prior thereto that the United States and its officers recognize water rights of parties under State law.
The contention of the defendants that by joining the United States the plaintiffs concede that the impoundment and diversion of water at Friant was and is authorized, and that hence the plaintiffs' suit must fail as against both the United States and the defendant officials, is without merit. The plaintiffs seek a declaration of their substantive water rights under the Federal Reclamation statutes and California laws. To a suit for the purpose of seeking such substantive declaration, the United States has consented to be joined, and is a necessary party. The Court has jurisdiction of the United States. It likewise has jurisdiction of the persons of the defendant officials against whom an injunctive decree would be enforceable by the sanctions of contempt.
It is to be noted in this connection that by Clause (2) of the second sentence of Section 666(a) "The United States, when a party to any such suit * * * (2) shall be subject to the judgments, orders, and decrees of the *80 court having jurisdiction * * * in the same manner and to the same extent as a private individual under like circumstances". If a private corporation had built Friant dam and the Madera canal and the Friant-Kern canal, it could not be gainsaid that as a matter of law such private corporation and its employees could be joined in the same suit for the adjudication and enforcement of water rights.
From all of the evidence in the case, as well as from the pleadings and records, clearly the United States ought to be a party if complete relief is to be accorded between those already parties. And, hence, it is a necessary party to the within suit.
The Court turns next to a consideration as to whether or not Section 666 and the Federal Rules of Civil Procedure permit joinder in pending suits.
Even the most conservative construction of a statute waiving sovereign immunity[31] does not permit a narrow, restricted, and technical interpretation which will defeat the purposes of that statute. Miller v. Robertson, 1924, 266 U.S. 243-248, 45 S.Ct. 73, 69 L.Ed. 265. Where broad statutory language is used in a waiver-of-immunity statute, such as is used in Section 666, it "is not to be thwarted by an unduly restrictive interpretation." Canadian Aviator v. United States, 1945, 324 U.S. 215, 222, 65 S.Ct. 639, 643, 89 L.Ed. 901. Or as stated in United States v. Aetna Casualty & Surety Co., 1949, 338 U.S. 366, at page 383, 70 S.Ct. 207, at page 216, 94 L.Ed. 171, in a quote from Judge Cardozo"`The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced.'"
In determining whether Section 666 applies to pending suits, such as this one, it is necessary to inquire into the intent of Congress from the text of the Act, and if necessary, from the legislative history. If the statute neither creates nor abrogates vested rights, then it is remedial and procedural in character, and the general rule requiring a construction for prospective operation only, does not apply, and the statute can properly be held applicable to pending suits. Home Loan Bank Board v. Mallonee, 9 Cir., 1952, 196 F.2d 336, at page 382, certiorari denied Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374; Petition of Callanan, D.C.E.D.Mich.1931, 51 F.2d 1067; Bowles v. Strickland, 5 Cir., 1945, 151 F.2d 419; Federal Reserve Bank of Richmond v. Kalin, 4 Cir., 1935, 77 F.2d 50; Standard Accident Insurance Co. v. Miller, 7 Cir., 1948, 170 F.2d 495; Link v. Receivers of Seaboard Air Line Railway Co., 4 Cir., 1934, 73 F.2d 149; Beatty v. United States, 8 Cir., 1951, 191 F. 2d 317; Dargel v. Henderson, Em.App. 1952, 200 F.2d 564; Fancher v. Clark, D.C.1954, 127 F.Supp. 452; Connett v. City of Jerseyville, 7 Cir., 1938, 96 F.2d 392.
The situation with relation to Section 666 is different than any of the other statutes wherein the United States has consented to be sued, such as the Tort Claims Act, 28 U.S.C. §§ 1346, 2671 *81 et seq., Suits in Admiralty Act, 46 U.S. C.A. § 741 et seq., and the "sue and be sued" agencies of the government. This statute must be read in light of, and construed with reference to, the previous Acts of Congress which recognized the rights of individuals against the United States under State law, and the obligation of the United States to abide the State law with reference to water rights as contained in the Reclamation Act of 1902, as amended, and others.[32]
As conclusively settled by the Gerlach case, supra, the Central Valley Project and all the works involved in the instant suit are being undertaken and operated under the Reclamation Act. The various Acts of Congress authorizing the Central Valley Project, 50 Stat. 850, 54 Stat. 1198, 63 Stat. 852, 64 Stat. 1036, contain declarations by Congress of the recognition of substantive vested rights according to the law of the State where the project is situated, by making the Reclamation Act applicable. Section 666 does not disturb, by enlargement or restriction, the obligations of the United States or the vested substantive water rights of parties under California law, which had theretofore been specifically recognized by Congress in the Reclamation Law and other Acts of Congress.
In Keifer & Keifer v. Reconstruction Finance Corporation, 1939, 306 U.S. 381, at page 394, 59 S.Ct. 516, at page 520, 83 L.Ed. 784, the Court held with relation to the waiver-of-immunity statute concerning the Reconstruction Finance Corporation, that in ascertaining the Congressional will, the Court was not limited to the single statute, and said, to do so "is to impute to Congress a desire for incoherence in a body of affiliated enactments and for drastic legal differentiation where policy justifies none. A fair judgment of the statute in its entire setting relieves us from making such an imputation of caprice."
The difficulty has been that, through all the years since the declaration by Congress of the recognition of existing vested rights as against the United States in the Reclamation Act and others, there was no means of enforcing those rights, except by equity suits against officials of the United States, without joining the United States as a party and without having any conclusive adjudication upon the United States. Obviously, the very purpose of this statute on its face was to provide a remedy and a procedure where these previously Congressionally recognized vested rights could be litigated as against the sovereign, and result in a judgment which would be res judicata upon the United States.
As so aptly stated by the Senate Committee Report, No. 755, 82nd Cong., 1st Sess. Sen., on Senate Bill 18, now 43 U.S.C.A. § 666:
"Down through the years the courts of the respective states marked out the pathway whereby order was instituted in lieu of chaos. Rights were established, and all this at the expense, trial and labor of the pioneers of the West, without material aid from our United States government until a much later time when irrigation projects were initiated by Congress through the Department of the Interior, and later, the Bureau of Reclamation. Even then, Congress was most careful not to upset, in any way, the irrigation and water laws of the Western States. In 1902, Congress wrote into the Federal Reclamation *82 Act a strict admonition to the Secretary of the Interior, * * *. It is most clear that where water rights have been adjudicated by a court and its final decree entered, or where such rights are in the course of adjudication by a court, the court adjudicating or having adjudicated such rights is the court possessing the jurisdiction to enter its orders and decrees with respect thereto and thereafter to enforce the same by the appropriate proceedings. * * * Unless Congress removed such immunity by statutory enactment, the bar of immunity from suits still remains, and any judgment or decree of the State court is ineffective as to the water rights held by the United States. Congress has not removed the bar of immunity even in its own courts in suits wherein water rights acquired under State law are drawn into question. The Bill (S. 18) was introduced for the very purpose of correcting this situation and the evils growing out of such immunity. * * * If a water user possessing a decreed water right is immune from suit and proceedings in the courts for the enforcement of valid decrees, then the years of building the water laws of the Western States in the earnest endeavor of their proponents to effect honest, fair and equitable division of the public waters will be seriously jeopardized. If such a condition is to continue in the future, it will result in a throw-back to the conditions that brought about the enactment of statutory water laws."[33]
Clearly, the statute was intended to be and is remedial and procedural, and provides a remedy to enforce against the United States existing substantive water rights required to be recognized for years by previous Congressional Acts.
Language of the section is also peculiarly apt in indicating an intention to permit the United States to be joined in a pending suit. Consent is given to join the United States as a defendant in any suit.
In Ex parte Collett, 1949, 337 U.S. 55-58, 69 S.Ct. 944, 946, 93 L.Ed. 1207, the Court construed "`any civil action'" in 28 U.S.C. § 1404(a) to include pending actions. In National Labor Relations Board v. Pittsburgh S. S. Co., 1951, 340 U.S. 498, at page 500, 71 S.Ct. 453, at page 455, 95 L.Ed. 479, after final board order, the reviewing power of the United States Courts of Appeal was enlarged, as to which the Court said: "that the scope of the court's reviewing power was governed by the legislation in force at the time that power was exercised even though the Board's order antedated such legislation." Citing United States v. Hooe, 3 Cranch. 73, 79, 2 L.Ed. 370.
The holding in United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058, that parties could not be joined under the Tort Claims Act is not applicable here. The Tort Claims Act contains no language similar to the language here which specifically states that *83 consent is given to "join" the United States as a defendant.
The holding in the Sherwood case that the Federal Rules of Civil Procedure did not enlarge the jurisdiction granted by a waiver statute cannot be challenged. Rule 82, Federal Rules of Civil Procedure, provides that the Rules shall not be construed to extend or limit the jurisdiction of United States District Courts.
Do the Federal Rules of Civil Procedure apply in this case?[34] Inasmuch as Section 666 from its comprehensive language and from the legislative history permits joinder of the United States in pending suits, it is clear that application of the Federal Rules of Civil Procedure relating to joinder does not limit or extend the jurisdiction conferred by Section 666. An awareness of the decisions of the Supreme Court must be imputed to Congress Cary v. Curtis, 1845, 3 How. 236, 44 U.S. 236-239, 11 L.Ed. 576; White-Smith Music Pub. Co. v. Appollo, 1908, 209 U.S. 1-14, 28 S.Ct. 319, 52 L.Ed. 655; Shapiro v. United States, 1948, 335 U.S. 1-16, 68 S.Ct. 1375, 92 L.Ed. 1787 and in view of this imputation, it is evident that by the use of the word "join" and of the words "any suit" in Section 666, Congress intended to avoid any possible restriction on the waiver of sovereign immunity, which might derive from United States v. Sherwood, supra, and similar cases which construed waiver statutes not containing such language.
The rules do apply and provide the procedural mode and time for the exercise of that jurisdiction. They apply to all civil actions, Rule 1, except those stated in Rule 81. Rule 81 does not except suits to which the United States is a party. Rules 4, 12, 13, 25, 37, 39, 45, 54, 55, 62 and 65 expressly make provision for the situation where the United States is a party as either plaintiff or defendant. Notes of Advisory Committee 28 U.S.C.A. following Rule 81.
Rules 18, 19, 20 and 21 were designed for the purpose of avoiding multiple litigation and liberalizing the right to join parties.
By Rule 21, parties may be added or dropped by order of the court on motion of any parties or on its own initiative at any stage of the action and on such terms as are just. Rule 21 thus imposes upon the court the duty of exercising judicial discretion as to the time of joinder.
Testing then whether or not the joinder of the United States constituted a proper exercise of discretion in this instance, the court is at once confronted with the command of Rule 1 that the Rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." It can be readily seen that it would have been neither speedy, nor just, nor inexpensive[35] to any of the parties to this action to have required the re-filing of this suit after the passage of Section 666, and re-litigating all the matters that were covered prior thereto. Especially is this so where, as here, the Special Assistant to the Attorney General of the United States, acting under instructions from the Attorney General of the United States, conducted the main defense to the action and was present on all proceedings prior to the joinder. The various officials and employees of the Bureau *84 of Reclamation were in attendance at all stages of the proceeding. The case had been conducted for defendant officials at the expense of and by the United States.
In Helene Curtis Industries v. Sales Affiliates, D.C.S.D.N.Y.1952, 105 F.Supp. 886, 900, 2 Cir., 199 F.2d 732, the Court stated a test of discretion in making a joinder under Rule 21 to be: "Will it prejudice the non-moving party? Will it serve to avoid multiplicity of suits?"
Clearly, the joinder does not prejudice the United States or any other party to the suit and clearly, the joinder will avoid a multiplicity of suits.
As stated by the Court of Appeals for this Circuit in the 1954 Prohibition proceedings, 9 Cir., 213 F.2d 818, at page 824: "The fact that 210 days have been spent in trial need not be considered a total loss because of the added party-defendant. Unquestionably, much statistical and expert engineering evidence already taken can be accepted as evidence in the case by the United States, not only because of the eminence and credibility of the witnesses, but because there is a close relationship between the issues appertaining to the bureau officials and the United States; and because a government attorney has been at the counsel table continuously representing the bureau officials. The United States as a named party may desire to add to testimony already taken and cross-examine the witnesses, and these matters rightfully belong to the sound discretion of the trial court under the cooperation of able and earnest counsel. Realistically, if not technically, the basic issue that has consumed the 210 trial days has always been the claim of the plaintiffs that they have been and are being deprived by the government of the United States of the use of water to which they are legally entitled. [Emphasis supplied.] In the beginning the case was envisioned as being much broader than a tort action against individuals, since the Secretary of the Interior and the Commissioner of the Bureau of Reclamation of the United States, among other United States government officials, were named parties defendant. We are not prepared to say that a very late order adding parties defendant may not in some circumstances affect our appellate powers, but we are prepared to say that our appellate action upon any decision in the instant case without the United States as a party would solve no basic issue involved and would be next to useless. Actually, our appellate powers over the real issue will be aided by the order of the trial judge as to which the United States is complaining."
In Mullaney v. Anderson, 1952, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458, the Supreme Court permitted the joinder of parties, even after an appeal was taken and while the case was pending before the Supreme Court.
In Lewis v. Darling, 1853, 16 How. 1-8, 14 L.Ed. 819, the Supreme Court held that even upon appeal, an order may be made for the cause to stand over, with liberty to the plaintiff to amend by adding proper parties. See also Curtis v. North American Indian, 9 Cir., 1922, 277 F. 909-912; Noonan v. Caledonia Gold Min. Co., 1887, 121 U.S. 393, 7 S. Ct. 911, 30 L.Ed. 1061.
In view of the broad language of the statute, the time taken and cost to the parties, the assertions of "title" to, and rights to the use of, water in the United States, and all of the pleadings and evidence in the case, the Court deems it would have been a gross abuse of discretion not to have joined the United States, and as such, reversible error. If the case proceeded to appeal without joinder, and were reversed on that ground, there is little doubt but that there would have been a remand to this Court to join the United States, and proceed precisely in the fashion which the Court did proceed after the order of joinder and after the dismissal of the 1954 Extraordinary Writ proceedings.
For all practical purposes, there has been no retrospective application of the statute. After the order of joinder, the United States was served with summons and the Complaint as amended and supplemented *85 to that date, under the terms of the statute43 U.S.C.A. § 666and the Federal Rules of Civil Procedure. The Attorney General of the United States and the United States Attorney were thereafter served with all previous pleadings of plaintiffs and with all subsequent amendments and supplements to the Complaint, and with all notices of motions or other proceedings which were thereafter had. They were served with the Motion to Re-open the trial and did not appear and did not object. They were served with the Order fixing the date of the re-opened trial. There had been present at all previous proceedings a Special Assistant to the Attorney General of the United States, duly authorized to appear in the proceedings, who participated extensively and fully in the trial and in all other matters and proceedings. By the Order to Re-open, the United States and defendant officials were given an opportunity to appear at the re-opened trial and object to the introduction against it or them of any or all of the previously admitted evidence, to examine and cross-examine any previous witnesses and to introduce new evidence. But neither the United States nor the defendant officials did so. The plaintiffs either produced or offered to produce all of the witnesses who had testified on behalf of the plaintiffs and of the plaintiffs in intervention. Thus, the proceedings had after the joinder were for all practical purposes the same as if the suit had been filed anew after the passage of the statute.
The Court concludes that the United States was properly and lawfully joined as a party defendant under the terms of 43 U.S.C.A. § 666 and the Federal Rules of Civil Procedure, and that by such joinder the Court obtained jurisdiction over the United States, and did not lose jurisdiction of the res or of the subject matter of the action, or of the defendant officials, or of the defendant districts, or of the intervenor, the State of California.
The conclusions herein reached are not only in consonance with the text and legislative history of the statute, but also with the Constitution. Instead of invading the executive and legislative powers, they give due credence to the Constitutional framework which also includes the judicial power. The statute provides a forum where the rightswater rights, the basis of life in the Wests affected by the vast dislocation and changes of the monumental Central Valley Project and its units, may be determined impartially under rules of law by the judiciary with the safeguard of Appellate review, instead of by the untrammeled discretion and unreviewable decision of individual officials who assert the right to determine finally and conclusively what those rights are and how much water they will need and when they may have it. To use the expression of Senator Watkins at the Committee Hearings on S. 18 (FN 33, ante, page 75), it prevents the United States from putting the tens of thousands of owners of water rights in the State of California who are affected by the Central Valley Project "over a barrel."
IX.
Default Against United States.
Plaintiffs made timely motion for judgment by default against the United States. And while the defendant officials had answered previous pleadings and been present by counsel throughout the trial and all proceedings prior to July 12, 1954, plaintiffs' counsel apparently considered their failure to answer the last amendment and supplement to Complaint of August 10, 1954, and their failure to be represented by counsel after July 12, 1954,[36] as requiring a motion *86 for default against them as well, which was timely made.
In one of the "Suggestions" filed by the Attorney General of the United States, it is contended that no pleading was directed to the United States.[37] If by this assertion it is meant that the United States is not properly a party because it has not been named as a party, or a claim for relief is not stated against it, then the point is without merit. In the first place, the granting of the Motion joined the United States as a necessary party, under Section 666 of Title 43, United States Code Annotated, and Federal Rules of Civil Procedure, Rules 19 and 21. When it was joined as a party it was named as a party. The United States was served with Summons and Complaint as required by the Statute. As heretofore pointed out, the joinder was made in order that complete relief on the evidence and pleadings, as they then stood, might be given between those who were already parties. The Complaint, as then amended, stated a claim for relief against the defendant officials and the defendant districts, and under the then pleadings and evidence in the case, the United States was a necessary party to complete relief. In any event, the plaintiffs in the amendment and supplement to the Complaint filed August 10, 1954, stated a claim for relief as a separate cause of action under 28 U.S.C. § 2201, The Declaratory Relief Act, against the United States and all the other defendants; and among other allegations therein, it incorporated all of the allegations of the plaintiffs' original Complaint and the previous amendments thereto. The United States is specifically named a defendant herein in the caption of the Complaint. The last amendment and supplement to the Complaint of the plaintiffs, of August 10, 1954, sets forth the controversies concerning the respective rights of the parties. It was served as required by the Statute and by the Federal Rules of Civil Procedure, its prayer is for declaratory judgment as to the respective rights of the parties, including the United States, for imposition of plaintiffs' plan of physical solution, for the injunctive *87 processes of the Court to enforce any such judgment, and for such other relief as is proper.
The complaint, as thus amended and supplemented, plainly and clearly stated a claim for relief against the United States and the other defendants, and plainly and clearly was directed to the United States and all the other defendants.
As noted, no responsive pleading was filed in the name of the United States to that (or any other) pleading. And no Answer or other responsive pleading was filed thereto by the defendant officials. No motion to strike or dismiss the same was ever filed by either the United States or the defendant officials.
In a "Suggestion" filed on December 6, 1954, by the Attorney General of the United States on behalf of the United States, the contention was made that this Court had no jurisdiction, and should enter a judgment of dismissal as to the United States, and "in the event, however, a judgment is entered, that it should be limited to the issues, if any, set forth in the pleadings and Complaints in Intervention."
The same thing, in slightly different language, was contained in the Suggestion filed December 13, 1954, by the Attorney General of the United States "In regard to motion to default, the United States of America." After again objecting to jurisdiction over both the United States and the defendant officials that "Suggestion" states: "Accordingly, this Court is respectfully requested to take into consideration in any disposition which is made of the Motion to Default the United States of America, the fact that any judgment in default must necessarily be limited to the pleadings, if any, and the prayer for relief which are purportedly directed to and against the United States of America; that the disposition of said Motion to Default be strictly within the Federal Rules of Civil Procedure." The United States thus concedes that the pleadings were directed "to and against the United States."
The provisions of Federal Rules of Civil Procedure, Rule 8(d), that averments in a pleading, not denied, are admitted, apply as well to the United States and the defendant officials as others, except that where there is a default, such as here, the provisions of Federal Rules of Civil Procedure 55(e) require that a plaintiff must establish his claim or right to relief by evidence satisfactory to the Court.
The text of Federal Rules of Civil Procedure 55(e) is as follows:
"(e) Judgment Against the United States. No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court."
The notes of the Advisory Committee on Rules, after calling attention to 28 U.S.C. former Section 763, has the following to say: "As this rule governs in all actions against the United States, U.S.C.A., Title 28, former § 45 * * * and similar statutes are modified in so far as they contain anything inconsistent therewith."[38]
*88 As heretofore noted, every opportunity has been given to the United States to appear and contest any of the facts or legal positions asserted by the plaintiffs. At the re-opened trial the plaintiffs not only offered to produce all the witnesses called by plaintiffs, but did produce many who re-asserted all their previous testimony with some slight modifications, and all evidence, testimony and every exhibit theretofore admitted was re-introduced and admitted, without objection, against the United States and the defendant officials. There has thus been strict compliance with the Rules to support by satisfactory evidence any judgment which may be entered in the instant case against the United States and against the defendant officials.
In one of the "Suggestions" filed by the Attorney General (December 6, 1954), and in one of the Extraordinary Writ proceedings, it was stated that the United States "rejects the record" made in the case in its entirety. If the United States is properly joined as a party, as it is in this case, it becomes a judicial question as to whether or not the record applies to the United States. That question was resolved against the United States when, at the re-opened trial, all of the previous records, testimony, exhibits and other evidence were admitted against the United States and the substituted defendant officials, as well as the evidence and testimony produced and taken on the re-opened trial.
The answers filed by defendant officials were prepared by or under the authority of the Attorney General of the United States, the same law officer required by law to represent the United States. It is difficult to see how any defenses could be or could have been raised on behalf of the United States that were not raised in the Answers of the defendant officials and put in issue on the trial.[39]
No suggestion is made either as to how any other or different evidence could have been produced, or how the trial would have been conducted any differently if the Special Assistant to the Attorney General who appeared in all proceedings in this court, and so ably conducted the trial to July 1953, had been also authorized to appear for the United States as well as the defendant officials.
In this connection, it must be kept in mind that an appearance by the United States Attorney, the Attorney General, or Special Assistant to the Attorney General in the trial of any case to which the United States is a party, is not under the same hazard as a private lawyer who chooses to default and not to participate in a lawsuit on behalf of his client. In such case, the private individual hazards the consequences of a judgment for which he alone is responsible, and his counsel is under no public duty to represent his client, such as is required, by Statute, of the Attorney General and the United States Attorney in all civil suits in which the United States is a party. More important, no jurisdiction can be admitted to exist, in any event, over the United States by filing an Answer, or participation by the Attorney General or the United States Attorney in a lawsuit in the name of the United StatesState of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 as such jurisdiction can only be obtained by a waiver of sovereign immunity by Statute *89 such as 43 U.S.C.A. § 666. Defenses can be interposed by Answer. Complete participation in the trial can be had; and the lack of sovereign consent still be available to the United States on appeal. Failure of the United States to answer or participate in the re-opened trial could thus be interpreted only as meaning that the United States, in standing on its objection to jurisdiction, under 43 U.S.C.A. § 666 admits that it would make no other record on trial or answer than that made by the defendant officials. In short, the United States, by failure to plead and appear, is bound by the record as made and will be bound by default judgment against it inasmuch as 43 U.S.C.A. § 666 permits joinder of the United States.
It is to be kept in mind that the Statute which permits the joinder of the United States as a party places the United States in the same position as if they were a private person. And, giving every intendment to the rules of strict construction of a waiver of sovereign immunity, but at the same time having in mind the text and purposes of Section 666 of Title 43 United States Code Annotated, it is concluded that this court has the power, in this case, to enter a judgment by default against the United States in view of the failure of the United States to plead and to appear at the re-opened trial, and against the defendant officials in view of their failure to plead to the last amended and supplemental Complaint, and to appear at the trial as re-opened and tried.
Whether or not the plaintiffs' claims and rights to relief have been established by evidence satisfactory to the court is a matter which is considered separately.
X.
Eminent Domain.
While it is asserted that the water is impounded and diverted by the United States and its officials, as of right, either by prescription, appropriation, public use, or the "purchase and exchange," contracts of Miller & Lux, or by a combination of them, or some of them, the assertions all involve the application of substantive California law, and will be considered in connection with that subject.
The immediately following discussion concerns the all-embracing claim that the United States has taken all the rights of plaintiffs, whatever they are, through the exercise of its power of eminent domain. If this contention is correct, that would end the matter, and plaintiffs could only recover compensation by way of damages for such rights.
In this discussion it must always be kept in mind that the Court is here concerned with whether there has been a lawful taking of water rights and not merely whether there has been a taking of physical possession of the property in which those rights are claimed.
Nor are these plaintiffs and their class in the position of one who, by bringing suit for just compensation for that of which there has been a physical taking, thereby elects to affirm that physical taking and convert it into a taking of his rights by seeking only compensation. In United States v. Great Falls Mfg. Co., 1884, 112 U.S. 645-656, 5 S.Ct. 306, 28 L.Ed. 846, the Court held that a party may waive any objection he may be entitled to make based upon the want of formal proceedings, and elect to regard the action of the sovereign as a taking under its right of eminent domain, and demand compensation. That is what the claimants did in the Gerlach cases. The plaintiffs in this case have not done so, but have and are insisting upon their rights to the use of water consistent with the applicable Federal and State laws.
The same principle is approved in Great Falls Mfg. Co. v. Attorney General, 1880, 124 U.S. 581-598, 8 S.Ct. 631, 31 L.Ed. 527; Juragua Iron Co. v. United States, 1909, 212 U.S. 297-313, 29 S.Ct. 385, 53 L.Ed. 520; See, also, United States v. Rogers, 8 Cir., 1919, 257 F. 397-399; Snowden v. Ft. Lyon Canal Co., 8 Cir., 1916, 238 F. 495, 498.
*90 Here, there are non-acquiescing plaintiffs who assert that whatever physical invasion there may have been of their property rights, those rights were not acquired by the Government by any lawful exercise of the power of eminent domain. The question is, has there been a lawful taking of rights by the power of eminent domain despite the lack of consent of the owners thereof.
As heretofore noted, the defendant officials contended, on Motion to Dismiss in 1950, that the Statutes under which the United States had built Friant Dam and the appurtenant works found their constitutional validity in the power of Congress to regulate navigable rivers and control floods under the Commerce clause of the Constitution, and that as a necessary consequence, the plaintiffs had no rights to either water or damages.
The same matters set forth in the Motion to Dismiss, upon which the above contentions were made, are again raised as separate defenses in the Answers filed by defendant officials. And while the same contention is not spelled out in the briefs filed by the defendants, it is impossible to determine whether or not the defendants have abandoned that position.
Whether they have or have not, the matter was decided adverse to such contentions in the prior decision of this Court 90 F.Supp. 773 to which conclusions therein on the subject the Court now adheres. But if there were any doubt about it, the matter was completely set at rest by the Supreme Court in the Gerlach Live Stock Co. case, 1950, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231, which held that Friant Dam and the works here involved were not constructed as an improvement of navigable waters under the Commerce clause, art. 1, § 8, Cl. 3, but that the construction and operation of the Dam and works, and the acquisition of all property and water rights therefor was and is subject to the basic Reclamation Act of 1902, as amended.
Such holding makes inapplicable United States v. Lynah, 1902, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; Hurley v. Kincaid, 1932, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637; and similar cases relied on by defendants which dealt with the exercise of the power of Congress under the Commerce clause in works upon navigable rivers. Such cases involved damage to property which, when acquired or when the improvement was made by the U. S., was always subject to the dominant servitude of the sovereign to regulate navigation or control floods under the commerce clause, United States v. Kansas City Life Ins. Co., 1950, 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277. In none of such cases was there applicable an Act of Congress, such as the Reclamation laws with the requirement that private water rights shall be measured by State law and when taken by the U. S. shall be taken by judicial proceedings in eminent domain.
It is thus unnecessary to give further consideration to such contentions.
It is asserted by the defendant officials that the United States owns the physical properties known as Friant Dam and its appurtenant works.
As to this, there can be no question.
Owning the Dam and appurtenant works, and thus being in a position of physical power to cut off the plaintiffs' water, does not by itself give any right to impound and divert the water. As to this, it is claimed that the United States owns the "fee simple title to all rights to the use of water" involved in this case, which rights were taken by the United States through the exercise of its power of eminent domain.[40]
*91 It is impossible to determine from the briefs and pleadings and evidence just when or how such rights are contended by defendants to have been taken. It is thus necessary to explore the question.
The controlling issue is whether formal judicial proceedings are necessary to the acquisition by eminent domain of the rights of these plaintiffs. Sub-issues or included issues are formed by the contentions of the defendants that the enactment of legislation authorizing the Central Valley Project was an ipso facto taking; that the impounding and diversion of water was a taking of rights to the use of that water; and that the Secretary made an informal taking by either his Feasibility Report or by a letter purportedly disclosing an exercise of the power. It can readily be seen that each of these contentions is merely another way of saying that formal proceedings were unnecessary. However, each of these will be examined in disposing of the over-riding issue as to whether formal proceedings in condemnation were required.
The basic "Reclamation Act" was adopted in 1902, 32 Stat. 388, now integrated in 43 United States Code Annotated. It has been amended and supplemented many times.[41] The two basic applicable provisions of the Reclamation Act of 1902, Sections 7 and 8, have remained unchanged since their original adoption. And the purpose of Congress not to deviate therefrom, or from the principles set forth therein, has been reasserted many times.[42]
Section 7 and Section 8 of the basic Reclamation Act (now 43 U.S.C.A. §§ 421, 372, and 383) read as follows:
"Sec. 7. That where in carrying out the provisions of this Act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States by purchase or by condemnation under judicial process, and to pay from the reclamation fund the sums which may be needed for that purpose, and it shall be the duty of the Attorney-General of the United States upon every application of the Secretary of the Interior, under this Act, to cause proceedings to be commenced for condemnation within thirty days from the receipt of the application at the Department of Justice.
"Sec. 8. That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate *92 stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."
The evidence shows conclusively that the plaintiffs have rights to the use of water. The nature, character, and extent of those rights are dealt with elsewhere.
The right to the use of water is property. It is part and parcel of the land. United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231, and cases cited and collected in D.C., 90 F.Supp. 773.
Section 7 of the Reclamation Act, as above noted, requires that when it is necessary to acquire any rights or property, the Secretary of the Interior is "authorized to acquire the same for the United States by purchase or by condemnation under judicial process".[43]
From the text of this section it cannot be denied that the Secretary of the Interior has been granted the discretion to exercise the power of eminent domain on behalf of the United States by appropriate judicial proceedings. But in order to take water rights for a reclamation project it is clear that it must be done in judicial proceedings. Has the Secretary of the Interior taken any judicial proceedings to condemn any right to impound or divert the water at Friant Dam? The answer is definitely that neither he nor the United States has done so. No judicial proceedings of any kind have been taken by the United States or by the Secretary of the Interior at any time, either before or since the filing of this suit, to condemn any rights to impound or divert water at Friant Dam.
The contention that Acts of Congress dealing specifically with the Central Valley Project themselves constituted an exercise of the power of eminent domain by Congress, and that by, and upon, the passage of the Acts a "taking" by eminent domain was ipso facto effected is without merit.
Although previous Acts of Congress had made appropriations for the Project, D.C., 90 F.Supp. 791, Appendix A, 1 to 31, the defendants seem to regard Section 2 of the Act of August 26, 1937, 50 Stat. 844-850, as the most important one.[44]
The applicable provisions of the Act of August 26, 1937, so far as here concerned, are "That the entire Central Valley Project, California, heretofore authorized and established under the provisions of the Emergency Relief Appropriation Act of 1935 (49 Stat. 115) and the First Deficiency Appropriation Act, Fiscal Year 1936 (49 Stat. 1622), is hereby reauthorized * * *; Provided further, That, except as herein otherwise specifically provided,[45] the provisions of the reclamation law, as amended, shall govern the repayment of expenditures and the construction, operation, and maintenance of the dams, canals, power plants, pumping plants, transmission lines, and incidental works *93 deemed necessary to said entire project, and the Secretary of the Interior may enter into repayment contracts, and other necessary contracts, with State agencies, authorities, associations, persons, and corporations, either public or private, including all agencies with which contracts are authorized under the reclamation law, and may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes".[46]
Both Section 7 of the Reclamation Act, and the Act of August 26, 1937, only authorize the Secretary of the Interior to acquire rights by condemnation by judicial process, or as stated in the Act of August 26, 1937, by proceedings in eminent domain. Neither of said Acts nor any of the other Acts of Congress dealing with the Central Valley Project, in and of themselves, take any rights by eminent domain, or indicate any intention of Congress by the mere passage of said Acts to thereby take them, but *94 leave such rights to be acquired in the future by condemnation proceedings.
None of the Acts appropriating money to the Central Valley Project or the specific units covered in the different Acts constitute a legislative taking, and they cannot by any conceivable argument be held to be a repeal of the provisions of the basic Reclamation Act or of the Act of August 26, 1937, which require that property necessary for the Project, including water rights, be acquired by condemnation proceedings unless the same may be acquired by purchase or exchange.
In Danforth v. United States, 1939, 308 U.S. 271,[47] at page 286, 60 S.Ct. 231, at page 237, 84 L.Ed. 240, the Court held against the contention that there was a taking by the mere enactment of legislation, as follows:
"The mere enactment of legislation which authorizes condemnation of property cannot be a taking. Such legislation may be repealed or modified, or appropriations may fail."
The Ninth Circuit recently considered the question and followed the Danforth case. In Thompson v. United States, 9 Cir., 1954, 215 F.2d 744, 745, an action was brought under the Tucker Act for damages, claiming that the U. S. had appropriated funds for the construction of a dam across the Columbia River and had commenced construction, and that when completed the dam would wipe out the ancient fishing rights guaranteed to the plaintiff by an Indian treaty. The Trial Court dismissed on the ground that from the face of the Complaint it did not appear that the plaintiff had as yet suffered any damage. In affirming the Court said:
"Clearly, the judgment must be affirmed. The Tucker Act does not authorize suit against the United States for anticipated damages in advance of an actual taking. As yet there has been no taking of appellant's property rights or any interest therein. There may never be a taking. The commencement of construction does not necessarily mean that it will be completed. The project may be abandoned. The height of the dam may be changed, and it may be that no damage to plaintiff will result even though it be completed in a modified form. Compare Pitt River Power Co. v. United States, 1942, 98 Ct.Cl. 253; Poinsett Lumber & Mfg. Co. v. United States, 91 Ct.Cl. 264; Danforth v. United States, 308 U.S. 271, 284, 286, 60 S.Ct. 231, 84 L.Ed. 240."
See, also, 23 Tracts of Land v. United States, 6 Cir., 1949, 177 F.2d 967.
It is noted that the Act of August 26, 1937, in addition to making the general provisions of the Reclamation laws applicable, reauthorized the Central Valley Project as "heretofore authorized and established under the provisions of the Emergency Relief Appropriation Act of 1935 (49 Stat. 115) and the First Deficiency Appropriation Act, fiscal year 1936 (49 Stat. 1622)".[48]
*95 The Secretary of the Interior, on November 26, 1935, made a report under the Act of June 25, 1910, 36 Stat. 835-836, 43 U.S.C.A. §§ 400, 413, which report is commonly termed the Feasibility Report. It was approved by direct order of the President on December 2, 1935, which approval was held by the Supreme Court, in United States v. State of Arizona, 1935, 295 U.S. 174, 55 S.Ct. 666, 79 L.Ed. 1371, to be a necessary prerequisite to the commencement of work on any project under the Reclamation laws.
It would seem, therefore, that the entire Central Valley Project which was authorized by Congress by the Acts of August 26, 1937, October 17, 1940, October 14, 1949 (two years after this suit was commenced), and September 26, 1950, (three years after this suit was commenced), was the Central Valley Project as described in the Feasibility Report.
Thus, even if it could, by any process of reasoning, be held that such legislation was itself a taking, the extent of the taking would be limited to that contemplated by the Feasibility Report which, as will be seen, nowhere indicates that these plaintiffs were to be deprived of water.
The Feasibility Report describes in very broad terms, with a minimum of detail, the general project and the separate units.
The Feasibility Report is set forth in full as Appendix "C", 90 F.Supp. at page 823.
The Feasibility Report contains a general description of the Project in which it is pointed out that the Project will provide urgently needed waters for "existing agricultural, industrial, and municipal developments in the San Joaquin Valley", and that the works therein described "will provide an adequate water supply for all purposes," and states that the economic values of the Project are of great magnitude, and "that the Project will bring into production no new agricultural areas," but "will maintain present values and civilization." Under the heading, "Engineering Features," it has this to say concerning the units of the project in the Southern end of the Valley:
"San Joaquin Pumping System The works for this pumping system will comprise a dam and other works in Sacramento Delta to divert stored water from Kennett Reservoir through a channel into San Joaquin Delta for salinity control, irrigation and other purposes; dredging of existing channels in the San Joaquin Delta; five dams and pumping plants on the San Joaquin River to mouth of Merced River; and four pumping plants and 65 miles of canal on the westerly side of San Joaquin Valley which will deliver water to Mendota Weir on San Joaquin River, elevation 160 feet. These works will be capable of furnishing a substituted supply of 1,000,000 acre-feet to 285,000 acres of land now irrigated from San Joaquin River.
"Friant ReservoirA dam, 250 feet high, will be constructed on San Joaquin River, which will store 400,000 acre-feet of water which will permit the diversion of San Joaquin River water southward at elevation 467 feet. One and one-half million acre-feet annually on the average will be available for transmission from the reservoir through the means of the San Joaquin River Pumping System and the purchase of water rights in the San Joaquin River.
"Friant-Kern CanalThe Friant-Kern Canal will extend from Friant Reservoir to Kern River, a distance of 157 miles and will be capable of *96 serving an area of 1,000,000 acres of developed land.
"Madera CanalThe Madera Canal, maximum capacity 1500 second-feet, will extend from Friant Reservoir to Chowchilla River, a distance of 35 miles and will be capable of furnishing irrigation water to an area of 140,000 acres."[49]
In the estimated cost of the Project, an item is contained of $8,000,000 for rights-of-way, water rights, and general expenses.
While the Feasibility Report also indicates that with the completion of the San Joaquin Pumping System (now known as the Delta-Mendota Canal) the entire flow of the San Joaquin River will be permitted to be regulated at Friant Reservoir, it is to be noted, under the description of "Friant Reservoir" that the total amount annually, on the average available for diversion would be one and one-half million acre-feet from the Friant Reservoir by means of the Friant-Kern Canal and Madera Canal, which water was to be made available "through the means of the San Joaquin River Pumping System and the purchase of water rights in the San Joaquin River."
The average annual flow of the river, as hereinbefore noted, is approximately 1,800,000 acre-feet. Thus, taking the most extreme view as to what was intended by the Feasibility Report, it is evident that the entire flow of the San Joaquin River was not to be diverted at Friant, but that there would be available for down-river use the difference between 1,500,000 and 1,800,000 acre-feet, or approximately 300,000 acre-feet per year below Friant Dam.
Neither the Feasibility Report nor any Act of Congress indicates an intent to authorize the diversion of all of the water of the river at Friant.
The enactment of legislation on the basis of the Feasibility Report cannot be twisted into an ipso facto acquisition by eminent domain by Congress as to the rights of these plaintiffs, particularly in view of the repeated provisions in the Act of Congress dealing with the Project requiring that the Reclamation laws must control the activities of the United States and its officials in the construction and operation of the Project.
Thus it is concluded from the terms of the applicable Reclamation laws and legislation authorizing the Central Valley Project, and particularly Friant Dam and appurtenant works that a taking of water rights of plaintiffs was not intended to be accomplished, ipso facto, by the enactment of legislation authorizing the Project as contained in the Feasibility Report, but for that power to be exercised by the Secretary of the Interior there must be formal judicial proceedings in condemnation. Since there have been no such proceedings, this would ordinarily terminate the inquiry. However, defendants have vigorously urged the Gerlach Opinion as militating against these conclusions. Thus a rather extensive examination of that case would seem to be necessary to show that the Gerlach case is not contrary to these conclusions, but is in many respects the fountain from which they flow.
That case originated in the Court of Claims under the Tucker Act. The claimants were owners of grass lands below Mendota pool and below the lands of the plaintiffs in Rank v. Krug. Their grass lands received water "only from the very crest of the seasonal stage," during those times when the river overflowed its banks and channels,[50] and flooded the grass lands. Because they *97 received water from flooding and not from controlled irrigation, they are known as "uncontrolled" grass lands. It was this characteristic of the river in its uncontrolled or flood stage which supplied the waters necessary to the growth of the grass. The claimants brought suit on the ground that they had riparian rights to this seasonal flooding and were entitled to be compensated for the deprivation of these rights, regardless of the fact that the flooding entailed a waste of water. The Court of Claims made awards of compensation, and the Government appealed, asserting the claimants were entitled to neither water nor damages.
The Supreme Court, as noted, rejected the theory of the Government that the entire project was constructed under the Commerce power in aid of navigation and the Government's contention that it thus did not have to compensate for the destruction of riparian interests, and held that Congress had instead elected to treat the Friant Project as a Reclamation project, and to recognize the claimants' rights as rights to the use of water under California State law.
The Court pointed out that the Central Valley Project, as originally adopted and as carried out by the Bureau of Reclamation included replacement at great expense of all water formerly used for crop lands and "controlled" grass lands, and the purchase of marginal pasture lands. The so-called "controlled" grass lands are those on which water is placed under controlled irrigation which does not entail waste of water. It is further stated that: "Moreover, Congress and the water users have been advised that, in prosecution of the work, existing water rights would be respected." 339 U.S. at page 740, 70 S.Ct. at page 963.
After pointing out the anomaly of the Government's position in asking the Court to hold that there were no riparian rights attached to the claimants' lands when the Government had already paid huge sums to Miller & Lux for identical and for similar rights, the Court turned to a consideration of the nature of those rights.
The Court took notice of the evolution of California Water law culminating in the 1928 amendment to the California Constitution, art. 14, § 3, making beneficial use a limitation on the exercise of riparian rights. It pointed to the abolition, by the amendment, of "dog-in-the-manger" aspects of common law riparianism whereby a shore proprietor could enforce, by injunction, his bare technical right to have the full flow of the stream, including the flood crest, even though he was getting no substantial benefits from it. Thus, the Court said that:
"Since riparian rights [after the amendment] attach to, and only to, so much of the flow of the San Joaquin as may be put to beneficial use consistently with this clause, claimants can enforce no use of wasteful or unreasonable character."
It is clear that the Court, by such statement, at most held a wasteful use was no longer capable of enforcement by injunction, and not that an injunction was unavailable to enforce a reasonable, beneficial use. The very statement implies that remedy by injunction was preserved and is available as to reasonable and beneficial uses, and the California law, since 1928, is in accord, as is later set forth.
The Court then proceeded on the assumption, without a specific holding to the effect, that prodigal use, inseparable *98 from claimants' benefits, such as the right to seasonal flooding, could no longer be enforced by injunction. It stated that the unavailability of such remedies, as to prodigal use, i. e., wasteful uses, did not extinguish the right and make it non-compensable upon a taking. It held that the right of claimants, prior to the amendment, to compensation was clear, and that the right appeared to survive under California law, and was compensable, even though it was no longer enforceable by injunction because seasonal flooding was not a reasonable, beneficial use under the amendment.
The above is the tenor of the decision.
Much is made by defendants of the statement, 339 U.S. on page 739, 70 S.Ct. on page 963 that "Congress elected to recognize any state-created rights and to take them under its power of eminent domain."
As hereinbefore pointed out, the Central Valley Project of California is a colossal undertaking, or as stated by Justice Jackson"[A] big bundle of big projects." The gigantic dams envisioned, some of which are built, the tremendous canals and diversions of waters of rivers, with the resulting change of diversion and of underground waters affects millions of acres of land, tens of thousands of farmers, and practically all, if not all, of the cities in the valley which secure their water mostly from wells. The contentions of the defendants, if adopted, that the above statement was a holding by the Supreme Court that the enactment of the authorizing legislation was a taking by eminent domain, would mean that all the water rights on all rivers in the Central Valley of California where dams have been built or authorized have already been taken, and are owned by the United States, and all State-created rights to water are wiped out, and all parties, including municipalities, are left only to their remedy by way of compensation in damages; even as among themselves, the water users would have no enforceable rights; the doctrine of water rights as appurtenant to the land would have ceased to exist in this valley. The mere statement of the proposition shows its absurdity. No such intention can be attributed to any Act of Congress, and no such interpretation is justified from any statement in the Gerlach case.
Since there was no ipso facto taking of all State-created water rights, could the statement be construed to mean, as also contended by defendants, that whenever and wherever a State-created right to water is invaded or actually interfered with by the mode of operation of Friant Dam and its appurtenances, such right is thereby taken under the power of eminent domain even though the exercise of that State-created water right was wholly consistent with, and under State law? That is, as applied to these plaintiffs and their class, did the mere impoundment and diversion of water at Friant constitute a taking of their rights by the exercise of the power of eminent domain?
This contention is equally as unjustifiable as the last above-mentioned. The foregoing untenable result of the acquisition by the U. S. of all water rights in the valley could in this manner be reached by indirection in that it would place in the hands of those who might at any point be operating the Project an unlimited power and discretion to exercise the power of eminent domain at any time without judicial proceedings.[51] To *99 so hold would amount to a judicial repeal of Section 7 of the Reclamation Act.
To take an extreme example: If such an interpretation should be adopted, the contracts with the fifteen irrigation districts would be meaningless; those in charge of the Dam could cut off the flow of water to any one district, and then declare that they had merely exercised the power of eminent domain; the district would be without water, and defenseless, and could at most recover compensation. The power could thus be exercised against any water user, at any time, without notice or opportunity to be heard. This plainly is contrary to the Reclamation laws, to say nothing of due process.
Instead, the statement in the Opinion makes it clear that where there has been a taking of a wasteful use not enforceable by injunction, it is made pursuant to the eminent domain power, and that the concomitant right of compensation is to be measured under the principles applicable to such a taking.
The plaintiffs in the instant case are seeking to enforce water rights claimed in every respect to be consistent with the overall Congressional and State purpose of beneficial use. Congress has prescribed the procedures to be followed if those rights are to be taken.
In any event, the Supreme Court has held that the mere impounding and diversion of water by the United States under the Reclamation laws does not vest ownership of the water or water rights in the United States. Ickes v. Fox, 1937, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525; State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815, cited in United States v. Gerlach Live Stock Co., 339 U.S. 725, at page 734, 70 S.Ct. 955, 94 L.Ed. 1231.
The State in its brief urged that the Secretary of the Interior was authorized to make, and made, an informal taking of plaintiffs' interests. The case of United States v. Buffalo Pitts Co., 234 U.S. 228, 34 S.Ct. 840, 58 L.Ed. 1290, is relied *100 upon. There the Government merely exercised its right under a contract to complete the contract upon default of the Construction Company employed on a reclamation project, and in doing so, it used an engine belonging to a third party but in possession of the defaulting Construction Company. The holding was that, despite such contractual right to complete on default, an implied promise to pay the third party for the use of the engine arose when Congress had conferred authority to acquire property necessary for the particular work, and to pay therefor. The sole issue was liability vel non of the United States on implied contract under the Tucker Act. That case is inapplicable in fact and law, and does not militate against the conclusions herein reached.
The Secretary of the Interior quite obviously has construed Section 7 of the Reclamation Act to mean that condemnation proceedings by judicial process, that is to say, suits in condemnation, are necessary for the United States to acquire the water rights involved in this case. This is indicated by the letter of the Acting Secretary of the Interior under date of August 20, 1951, (4 years after this suit was commenced), addressed to the Attorney General, and read into the record on August 21, 1951 (TR. pp. 567 et seq.) wherein it is stated:
"In my opinion it is necessary that the power of eminent domain be used to acquire for public uses the rights in those instances wherein the parties in interest have not contracted with or made deeds to the United States and its predecessors in interest, although such an action should not seek to impair the obligations of any of the contracts for the purchase or adjustment of water rights between the United States and the landowners or water users affected by Friant Dam. Accordingly, you are requested to institute appropriate proceedings to acquire the necessary land, easements, rights-of-way, water rights, or other interests which are in conflict with the proposed plan of operation of the dam, or which are, or may become impinged upon, impaired, or taken, by such plan of operation.
"Other areas than those shown on the enclosed map are potentially involved. An investigation is being made concerning such other areas, at the completion of which, a similar request may be made concerning them."
This letter, written after the decision in the Gerlach cases, plainly shows that the Secretary of the Interior did not on that date regard the rights of plaintiffs to have been taken by eminent domain, and did not regard the Gerlach case as so holding.
In this same connection, it is noteworthy that the Water Project Authority of the State of California, on May 22, 1953, (almost 6 years after this suit was commenced) adopted a Resolution requesting the United States to institute condemnation proceedings to acquire the plaintiffs' water rights necessary for the Project. This was two years after the decision in the Gerlach cases, and plainly, the State of California did not on that date regard the rights of plaintiffs to have been taken by eminent domain.
The date of the Resolution is important in view of the contentions made by the defendants that the letter of the Secretary of the Interior, dated March 30, 1953, introduced in evidence herein, constituted a "taking" by eminent domain. The Resolution was subsequent by almost two months to the letter of the Secretary. Obviously, the State of California did not regard the Secretary's letter of March 30, 1953, as a taking by eminent domain. In fact that letter states that the United States will release all the water to plaintiffs to which they are lawfully entitled under California law. It shows an intention not to exercise the power of eminent domain. No condemnation proceedings by judicial process have followed that letter; it was *101 not a taking by eminent domain as contemplated and required by Sections 7 and 8 of the Reclamation Act.
The Supreme Court in the Gerlach case compares the action of Congress, in providing in the Reclamation Act for full recognition of State-created rights, to the action of Congress dealt with in Ford & Son v. Little Falls Fibre Co., 280 U.S. 369, 50 S.Ct. 140, 74 L.Ed. 483. There, Congress had directed in the Federal Water and Power Act, 16 U.S.C.A. § 791a et seq., that State-created rights be respected, and had given licensees of such projects the power of eminent domain, as has the Secretary of the Interior here. The licensee had been restrained by the State Court from maintaining, on its dam, flash-boards which interfered with riparian rights of the plaintiffs. On certiorari the Supreme Court held that even though these riparian rights might be deemed subordinate to the power of the National Government over navigation, the rights were a proper subject of legislative protection. The Court determined that plaintiffs had vested rights, and upheld the determination that the acts of the licensee constituted, under local State law, an actionable wrong, entitling plaintiffs to an injunction and damages. Whether the rights involved were subject to the eminent domain power was not decided. However, the clear implication was that if those rights were subject to that power, the procedure for the exercise of that power by condemnation proceedings must be followed, and, since it was not, the rights were not impaired by the mere grant of that power.
A very similar situation here exists. Congress has indicated an intention to protect State-vested water rights. The power of eminent domain has been granted but no judicial proceedings taken for its exercise. Thus, the Supreme Court in the Gerlach case, by approving the Little Falls case, inferentially indicated that interference with those rights, other than by judicial proceedings in condemnation, is non-compliance with the Congressional mandate contained in Sections 7 and 8 of the Reclamation Act.
Although not in issue here, a statement in Footnote 7, 339 U.S. at page 734, 70 S.Ct. 960, of the Gerlach case casts some doubt on whether the Congressional grant of the power of eminent domain in the Reclamation laws is, in any event, broad enough to permit condemnation of the water rights exercised in a reasonable, beneficial manner under California law. The Court says, after quoting Section 8 of the Reclamation Act, "To the extent it is applicable this clearly leaves it to the State to say what rights of an appropriator or riparian owner may subsist along with any federal right." Without deciding the question, this suggests that the power of eminent domain, aside from acquisition of the project site, was granted only as to water rights which, by State law, were incapable of co-existing with the stated Federal purpose of the project to increase productivity, and at the same time, maintain "existing agricultural development and existing civilization of a high type" and "maintain present values" by an "adequate water supply for all purposes." (Feasibility Report) Deprivation of water to such uses, even by condemnation proceedings might well be contrary to both the project purposes and the State law by which those purposes are measured.
In any event, the Supreme Court in the Gerlach case recognized that crop and "controlled" lands are entitled to water, as a reasonable and beneficial use, as distinguished from damages.
The statement concerning the exercise of the power of eminent domain, appearing as it does in a discussion as to whether Congress intended to exercise its navigation power and take without compensation, cannot be taken out of context and perverted into meaning either, that persons using water in conformity with California law were to be deprived of their equitable remedies and relegated to compensation, or, that the United States could take such water *102 rights without compliance with Sections 7 and 8 of the Reclamation Act. Such a construction would do violence to the language of the Supreme Court which clearly recognizes a distinction between waste of water and a reasonable beneficial use, and the remedies available in each instance. It held beyond dispute that the Reclamation Law controlled the conduct of the United States and its officials in the construction and operation of Friant Project.
Other isolated statements in the Opinion are taken out of context and urged by the defendants as supporting their contention that the Supreme Court held in the Gerlach case that all water rights of plaintiffs in this case were taken by eminent domain by the United States.
For instance, the defendants emphasize that portion of a sentence which reads as follows: "* * * except for occasional spills, only a dry river bed will cross the plain below the dam."
This clause is found in that part of the Opinion which is describing the general physical features of the whole Central Valley Project, and to illustrate the unreasonableness of the conclusions the defendants seek this Court to draw, it is well to quote that portion of the Opinion which was then describing Friant Dam. 339 U.S. at page 729, 70 S.Ct. at page 957.
"Shasta Dam in the north will produce power for use throughout much of the State and will provide a great reservoir to equalize seasonal flows of the Sacramento. A more dramatic feature of the plan is the water storage and irrigation system at the other end of the valley. There the waters of the San Joaquin will be arrested at Friant, where they would take leave of the mountains, and will be diverted north and south through a system of canals and sold to irrigate more than a million acres of land, some as far as 160 miles away. A cost of refreshing this great expanse of semiarid land is that, except for occasional spills, only a dry river bed will cross the plain below the dam. Here, however, surplus waters from the north are utilized, for through a 150-mile canal Sacramento water is to be pumped to the cultivated lands formerly dependent on the San Joaquin."
The Court in the Gerlach case was dealing only with lands located downstream from Mendota pool, which would, in fact, be supplied with exchange waters. It had no reason to, and did not, consider the situation of the present plaintiffs whose lands lie upstream from Mendota pool, and do not and cannot receive exchange water from the Sacramento River. Thus, the statement cannot be applicable to the rights of these plaintiffs.
That the statement was restricted to the lands there in question is also clear from a statement, 339 U.S. on page 730, 70 S.Ct. on page 958 where the Court said that the bed of the San Joaquin "along claimants' lands will be parched, and their grass lands will be barren."
This conclusion is fortified by the other statements in the Opinion that there would be replacement, at great cost, of all water formerly used for crop and "controlled" lands, i. e., irrigated lands.
It follows that these statements, read in context and with an understanding that the situation of the plaintiffs herein, and the precise details of so much of the Central Valley Project as affects their lands, was not before the Court, no inference is to be drawn that the Court anticipated or countenanced any absolute deprivation of water, by eminent domain or otherwise, to thousands of acres of very productive lands, or the rights of the plaintiffs and their class to the use thereof, involved in this case.
Neither these plaintiffs and their class nor their rights, nor anyone representing them, were before the Court in the Gerlach cases. Thus any interpretation out of context of statements of the Supreme Court to mean *103 that Friant Project would impound and take all of plaintiffs' water rights in this case, comes within the rule announced by Chief Justice Marshall in Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 19 U.S. 264, at page 398, 5 L.Ed. 257:
"If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision."
Furthermore, as herein elsewhere noted, and in D.C., 90 F.Supp. 773, the Department of the Interior has repeatedly stated to Congress and to the world that the plaintiffs herein would not be deprived of water, but that water would flow in the bed of the river to meet their rights. At most, assuming, but not holding that, the Feasibility Report indicated an intention to impound and divert at Friant 1,500,000 acre-feet annually, which was not to be supplied by exchange of Sacramento River water, there would still be approximately 300,000 acre-feet of San Joaquin River water which would flow past Friant annually. That is certainly not a dry river bed.
Before leaving the subject of eminent domain, attention should be given to contentions by the defendants, which again are not set forth with clarity, but which seem to amount to the proposition that statements can be found in several reports and bulletins prepared by the State of California which indicate that ultimately there was an intention to divert all of the flow of the San Joaquin at Friant. Several of these reports were put in evidence. Together they comprise several thousand pages and have hundreds of charts and tables. An examination of them indicates that there are contradictory statements therein concerning the water to be supplied to the plaintiffs in this case. And in none of them can there be found any statement indicating that plaintiffs in this case will have no water. While some of those reports were prepared by the State, under contract with the Bureau of Reclamation, there is nothing in any Act of Congress which shows an intention of Congress to build and operate the units of the Project here involved in accordance with detailed plans contained either in those reports or the plans for the different units of the project set forth in the Central Valley Project Act of California of 1933, Cal.Stat.1933, Chap. 1042, p. 2643, Calif.Water Code, § 11100 et seq. None of those reports which are mentioned in any Act of Congress deal with the area involved here, or with Friant Dam and its diversion works.
The works authorized by Congress in the Feasibility Report, and actually built, are not those described by the California reports and by the California Central Valley Project Act of 1933. For instance, the Delta-Mendota canal is an entirely different physical works than the San Joaquin River Pumping System described in both the Feasibility Report and in the California Central Valley Project Act of 1933, and as contained in the 1943 enactment of the Water Code of California. Again, the Central Valley Project Act of California, 1933, as re-enacted by the legislature in the Water Code of 1943, as well as the California Reports on the Central Valley Project, call for the erection of a power plant at Friant Dam, which for its use would require large quantities of water to be released into the bed of the stream to flow past plaintiffs' lands for their use and to replenish the underground waters. No power plant has ever been built. The Feasibility Report does not provide for a power plant at Friant, and the Dam, as built, is not designed for one to be subsequently built.
Further, the Central Valley Project of California, 1933, and the Water Code of California require that any and all water, water rights, and other property needed for the Central Valley Project must be condemned under the provisions of the laws in this State relating to eminent domain proceedings unless the same can be acquired by purchase or agreement with the owner or owners. Cal. *104 Stat.1933, p. 2651, Sec. 12, Calif.Water Code, as amended 1943, Secs. 11575, 11580.
The units here involved have been constructed and are operated and maintained entirely by the Federal government through the Bureau of Reclamation, under appropriations made therefor by Acts of Congress to the Bureau of Reclamation.
In summation on this phase, it is the holding of the Court that, as a matter of law, neither the enactment of legislation authorizing the Project or making appropriations therefor, nor the Feasibility Report, nor the letter of the Secretary of the Interior of March 30, 1953, nor the impounding and diversion of water at Friant constituted an exercise of the power of eminent domain so as to amount to an acquisition of whatever rights the plaintiffs here and their class have, but that under applicable Federal statutes, judicial proceedings in condemnation are necessary; and, as a matter of fact, no judicial proceedings have, at any time, been taken as to the rights here in question.
It follows, and the Court holds, that as against the plaintiffs and their class the United States does not own the "fee simple", or any, title to all or any of the rights to the use of water insofar as any such title or right to impound and divert water as against the plaintiffs and their class at Friant Dam depends on the exercise of the power of eminent domain.
Since there has been no acquisition of the water rights of plaintiffs by an exercise of the power of eminent domain, the contentions as to when that power was purportedly exercised are immaterial in that the query itself presupposes that there has been, at some time, an exercise of the power of eminent domain.
The Court further concludes that, inasmuch as there has been no acquisition by the United States by eminent domain of whatever water rights plaintiff's herein possess, the impounding and diversion of the water at Friant as to rights of plaintiffs and their class, insofar as it depends on the exercise of the power of eminent domain, is unlawful, and the United States and its officials, in doing so, are acting unlawfully insofar as the rights of plaintiffs and their class are concerned, unless the United States has acquired in some other manner, under the State law of California, rights against the plaintiffs to impound and divert the water; to which question the Court will now address itself.
XI.
Water Rights Under California LawGeneral.
In 1922 Chief Justice Shaw of the California Supreme Court remarked that the reported cases in California contained more decisions on the subject of water rights than any other.
It is not the purpose of the Court in this Opinion, nor is it deemed to be necessary, to discuss the entire history of the California Water law as it has developed through various phases of the settlement and growth of California;[52] but the applicable Federal statutes and the nature of the claims of the various parties make it necessary that there be some general discussion of California law on water rights, their nature, limitation, extent and enforceability.
*105 The claims of the parties cover almost the entire gamut of rights to the use of water in California; the rights variously asserted among the parties concerning the use of surface and underground waters invoke the doctrines applicable to riparian and overlying owners, as well as the doctrines relating to prescription, prior appropriation, applications to appropriate surplus waters, the intervention of a so-called "public use," the applicability and effect of the so-called "County of Origin" and "Protection of Watershed" Statutes, and the right to change the point of diversion on the San Joaquin river, which latter also involves the effect of the so-called Miller & Lux Purchase and Exchange, and other contracts. Also involved is the question of a "physical solution" as that term has been developed and is used and enforced by the Supreme Court of California, and the power and the duty of the Court to impose a physical solution.
It is well to again emphasize that there are not involved in this case any asserted rights inter sese between the plaintiffs, individually or as a class, as against one another, or between the defendants as against one another; but the issue, as drawn from the beginning and maintained throughout the trial, is whether the plaintiffs have common paramount rights to a common source of water as against the defendants' assertions of superior right, and if plaintiffs do have such rights, the appropriate relief therefor.
In approaching the problem of the substantive water law of California, it must be remembered that the primary function of this Court is not to make new law in that field, but to ascertain, from cases decided by the California State Courts, what the law is on the particular matter, and to accept and apply it. Only if there is a total absence of California decisions on the precise point or statute will the Court undertake, as it must, to declare the law.
This Court must and will endeavor to resolve the many serious and important questions in this case, either by direct reference to the California cases, or by reasoning from them. It cannot be done in a word. There seems a dearth of State decision on a few questions.
Except as abrogated by statute, constitutional provisions, or as held in the cases to be inapplicable to local conditions, the common law of England relating to riparian and overlying rights is the law of California concerning those rights. Lux v. Haggin, 1886, 69 Cal. 255, 4 P. 919, 10 P. 674; Katz v. Walkinshaw, 141 Cal. 116, 122, 70 P. 663, 74 P. 766, 64 L.R.A. 236; Gin S. Chow v. City of Santa Barbara, 1933, 217 Cal. 673, 22 P.2d 5. The exceptions are many, and have produced a plethora of decisions and opinions in the reported cases which deal with the almost innumerable varieties of conflicts which were bound to arise, and will still arise in this State, with its variations of climate and stream flow, and the necessities for water for rapidly growing population, industry and agriculture.
The right of a riparian is the right to take water directly from the stream for use on his abutting land. The right is part and parcel of the land. It passes with the title to the land and is not gained by use or lost by disuse. A riparian also has an overlying right to take, by means of wells, groundwater regardless of its source. An overlying owner, whether riparian or not, has the right to take water, regardless of its source, from the ground underneath his land for use on his land which lies within the watershed or basin. The overlying right is analogous to the riparian right in that each is based on ownership of the land and is inseparably annexed to the soil. The overlying right, though the manner of its exercise may be different, is identical in law with the riparian right. These rights are absolute property rights against the world, except that as between riparian owners similarly situated, and as between overlying owners similarly situated, their rights are correlative and common with those in a like situation.
*106 The foregoing propositions of law as to the nature of such rights are so firmly and universally supported by the decisions that citation of authority is superfluous and unnecessary.
The extent and enforceability of water rights, riparian, overlying, appropriative and prescriptive, have been the subject of much litigation in California, and are involved in this case.
The terms "appropriator" and "appropriation" are frequently loosely and improperly understood as describing the manner of taking; sometimes as referring to the manner of taking water by wells from the underground, and sometimes to the manner of taking water by storage back of dams and diversion from surface streams.
In the legal and technical sense an appropriator is actually one who takes water, the use of which he did not previously own as part and parcel of land owned by him, whether such taking is from the underground by wells or by surface diversion; one need not appropriate that which he already owns. Thus, an appropriator in the legal sense is one who initially takes water without possessing a property right to take and use such water. As held in City of Pasadena v. City of Alhambra, 1949, 33 Cal.2d 908, 925, 207 P.2d 17, the term "appropriation" refers to the taking of water for other than overlying or riparian uses and not merely to the taking of water from a surface stream on public lands for non-riparian purposes. In this Opinion the terms "appropriator" and "appropriation" are used in the legal sense, and not merely to refer to the manner of taking water.
In 1926 the California Supreme Court decided Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607.[53] It sustained the right of Herminghaus, whose lands were located along, and were riparian to, the San Joaquin river immediately above Mendota, as against Southern California Edison Company which was going to build a dam for power purposes on the San Joaquin river in the mountains above Friant, to have the full natural flow of the San Joaquin river past her lands unlimited "by any measure of reasonableness" as to use. The full natural flow of the San Joaquin river was held to include the crest of the seasonal flood flows.[54] Following that decision by a few months, the Supreme Court in 1927 decided the case of Fall River Valley Irrigation District v. Mt. Shasta Power Corporation, 202 Cal. 56, 259 P. 444, 56 A.L.R. 264, and there affirmed the doctrine of the Herminghaus case.
Thus, prior to the 1928 Constitutional amendment, a riparian owner was entitled, as against an upstream taking by any method of appropriation for any purpose, to have the full flow of waters of a stream past or through his land, except as diminished by reasonable riparian uses of upstream owners and the exercise of perfected prescriptive appropriative rights. This right existed though a beneficial use could have been made by upstream appropriations without interfering with the riparian owner's beneficial use of waters, present and prospective.
The Court did not in either the Herminghaus case or the Fall River case assay to announce any new doctrine, but followed the doctrine of previous cases. The application of the doctrine throughout California permitted vast quantities of water to flow unused into the sea, which did, in fact, result in waste of water. The necessities for putting all *107 water to beneficial use and the prevention of waste resulted in the Constitutional amendment of 1928 modifying the doctrine of those cases insofar as they permitted the enforcement of a flow of water which resulted in waters flowing into the sea, which were in excess of reasonable and beneficial uses.
The California Constitutional amendment of November 6, 1928, art. 14, § 3, since its adoption is thus the point of beginning, in any discussion, of the extent and enforceability of all water rights under California law. Its text is as follows:
"§ 3. Conservation of water resources; Restriction of riparian rights. Sec. 3. It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained."
In 1913 the State adopted the Water Commission Act, Cal.Stats.1913, Ch. 586, in an attempt to bring some order in the law relating to appropriation of water, which was included in the Water Code of 1943 when the State of California codified the law relating to water and water rights. Section 100 of the Water Code[55] and Section 101 of the Water Code[56] are in substantial accord with the declaration of policy contained in *108 the Constitutional amendment. Section 103 provided that in the enactment of this Code, "the Legislature does not intend thereby to effect any change in the law relating to water rights." Section 106 provided that it is "the established policy of this State that the use of water for domestic purposes is the highest use of water and the next highest use is for irrigation."
Other sections and provisions of the Water Code are applicable to certain contentions of the parties, and will be discussed as they arise.
The Constitutional amendment of 1928 has been construed many times by the California Supreme Court. It was held in Gin S. Chow v. City of Santa Barbara, 1933, 217 Cal. 673, 22 P.2d 5, and in Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 1935, 3 Cal.2d 489, 45 P.2d 972, not to be violative of the due-process clause of the Fourteenth Amendment of the United States Constitution. The question of the constitutionality of the 1928 amendment to the California Constitution was not raised in the Gerlach case, although the amendment was construed by the United States Supreme Court. In California-Oregon Power Co. v. Beaver Portland Cement Co., 1935, 295 U.S. 142-159, 55 S.Ct. 725, 79 L.Ed. 1356, and in United States v. Rio Grande Dam & Irrigation Co., 1899, 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136, the Court held that it is within the power of any State to change the common law rule as to the use of water.
The Constitutional amendment did not change the law relating to acquisition, ownership, or nature of water rights, but superimposed on all water rights the requirement that all water must be put to a reasonable and beneficial use and none may be wasted.
It may properly be said that, by the Constitutional amendment and the cases construing it, the use of all water in the State became "vested with a public interest," or as sometimes said, a "public use." But the term "public use" as used in connection with water rights has acquired a limited and restricted meaning under the California Constitution, laws, and cases, and is not strictly accurate in describing the use of all water because it is technically applied to a certain type of use which subjects it to regulation by the State, and which may become superior to others.
Prior to the Constitutional amendment of 1928, the rule of reasonableness of use as a measure of the water right had been applied by the California Supreme Court as between riparian ownersPabst v. Finmand, 190 Cal. 124, 211 P. 11; as between owners overlying an underground water supply Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236, 99 Am. St.Rep. 35; as between appropriators Natoma Water & Mining Co. v. Hancock, 101 Cal. 42, 31 P. 112, 35 P. 334; as between overlying owners and exporters from an underground basin to nonoverlying landsBurr v. Maclay Rancho Water Co., 154 Cal. 428, 98 P. 260; and as between riparian owners and overlying owners under the doctrine of common source of supplyHudson v. Dailey, 156 Cal. 617, 105 P. 748; but the Court, prior to the 1928 amendment, denied its application as between a riparian owner and an appropriator. The Constitutional amendment from its effective date, and as interpreted in the Gin S. Chow case, supra, has enjoined the doctrine of reasonable use as between the riparian and an appropriator. The limitations and prohibitions of the Constitutional amendment now apply to every water right and every method of diversion. Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, at page 367, 40 P.2d 486. The effect of the amendment was also to apply the doctrine of reasonable use between overlying owners and appropriators. Tulare Irrigation District v. Lindsay-Strathmore *109 Irrigation District, 1935, 3 Cal.2d 489-524, 45 P.2d 972.
As stated in the Peabody case, 2 Cal.2d at pages 367-368, 40 P.2d at page 491:
"Epitomized, the amendment declares:
"1. The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served.
"2. Such right does not extend to the waste of water.
"3. Such right does not extend to unreasonable use or unreasonable method of use or unreasonable method of diversion of water.
"4. Riparian rights attach to, but to no more than so much of the flow as may be required or used consistently with this section of the Constitution.
"The foregoing mandates are plain, they are positive, and admit of no exception. They apply to the use of all water, under whatever right the use may be enjoyed. The problem is to apply these rules in the varying circumstances of cases as they arise."
The priority of riparian and overlying rights has thus "been subjected to limitations and regulations prescribed by the Constitution, but it has by no means been abolished." Peabody v. City of Vallejo, supra, 2 Cal.2d at page 368, 40 P.2d at page 492.
The doctrine of inter sese limitation of reasonable and beneficial use as applied prior to the 1928 Constitutional amendment between riparians and as between overlying owners has in this manner been extended and now applies to every right.
It was held in Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, at page 445, 90 P.2d 537, at page 547, 91 P.2d 105, that the cases of Gin S. Chow v. City of Santa Barbara,[57] Peabody v. City of Vallejo,[58] Tulare Irrigation District v. Lindsay-Strathmore Irrigation District,[59] and City of Lodi v. East Bay Municipal Utility District, 1936, 7 Cal.2d 316, 60 P.2d 439,[60] established that, by the Constitutional amendment, the right to use the waters of rivers and streams of the State has been limited to a reasonable and beneficial use; that the riparian and overlying owner has a prior and paramount right to the full flow of the stream or its equivalent undiminished in quantity and unimpaired in quality; that the riparian and overlying owner is safeguarded in this right by the Constitutional amendment; that the Constitutional provision that "`riparian rights in a stream or watercourse attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section' * * * clearly means that when the law has guaranteed to the riparian owner the use of the waters of the stream to the full extent to which he may put the same for all present and prospective useful and beneficial purposes, and has made available to him the means of protecting the rights so guaranteed, he has received the full measure of benefit and protection to which he is entitled, and can claim no more."
We are here dealing with various types of vested rights in relation to subsequent claims of appropriation and subsequent applications to appropriate, and the discussion is to be so interpreted; that is to say, none of the claimed rights of defendants to impound and divert water at Friant are based upon any claimed riparian or overlying right.
The procedure for appropriation of surplus water prescribed by the California Water Code, Section 1200 et seq., is limited to surface streams and to subterranean streams which flow through a known channel, if the channel can be *110 defined. No such procedure is or ever has been prescribed or required for those who take water by means of wells from underground percolating waters or underground basins and apply it to other than overlying uses. Gould v. Eaton, 1896, 111 Cal. 639, 644, 44 P. 319. And the permit and licensing provisions of the Water Code, by the terms thereof, do not apply thereto. City of Pasadena v. City of Alhambra, supra, 33 Cal.2d at page 934, 207 P.2d 17.
Any taking of water, whether from a live stream or from wells, which is not in the exercise of an overlying or riparian right, is an appropriation of water.
Appropriations subsequent in point of time to prior vested rights of whatever nature, are of two types. They are sometimes referred to as either proper or wrongful. A proper appropriation may be made only of excess or surplus waters which are defined as "any water not needed for the reasonable beneficial uses of those having prior rights."[61] And this is so whether the appropriation be from the undergroundCity of Pasadena v. City of Alhambra, supra, 33 Cal. 2d at page 925, 207 P.2d 17or from waters of surface streams subject to the permit and licensing system of the Water Code. Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, 40 P.2d 486; Stevinson Water Dist. v. Roduner, 1950, 36 Cal.2d 264-270, 223 P.2d 209. This surplus is subject to appropriation upon application and permit under the California Water Code, but prescriptive rights are not acquired against the lower riparian owner, overlying owner, or other vested prior right by the appropriation of this excess or surplus. City of Pasadena v. City of Alhambra, supra; City of Los Angeles v. City of Glendale, 1943, 23 Cal.2d 68, 142 P.2d 289; Orchard v. Cecil F. White Ranches, 1950, 97 Cal.App.2d 35, 217 P.2d 143.
A wrongful appropriation is one of non-surplus waters, and against a downstream riparian or overlying owner is a trespassunless and until the right to such use ripens by prescription. Fall River Valley Irrigation District v. Mt. Shasta Power Corp., 1927, 202 Cal. 56, 70, 259 P. 444, 56 A.L.R. 264. As stated in City of Pasadena v. City of Alhambra, supra, 33 Cal.2d at page 926, 207 P.2d at page 29: "Accordingly, an appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile *111 and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under claim of right."
Thus the problem, as between the vested riparian or overlying right and the subsequent appropriator is to determine whether the waters sought to be appropriated are in excess of, or surplus to, the prior vested rights of the riparian and overlying owner to such water as is needed for his reasonable and beneficial uses. A hasty reading of the California cases suggests some confusion in that respect, but, taking them case by case on their particular facts, they show a pattern of decision from which a rule or standard has been developed by the Supreme Court of California for the determination of that problem, which gives full effect to the purposes and protections of the 1928 amendment.
A riparian and overlying owner cannot lose his right to a lower appropriator by prescription. San Joaquin & Kings River Canal & Irrigation Co. v. Worswick (Miller & Lux v. Worswick), 1922, 187 Cal. 674, 203 P. 999, certiorari denied 258 U.S. 625, 42 S.Ct. 382, 66 L.Ed. 797.
But it is the doctrine of City of Pasadena v. City of Alhambra, supra, and cases there cited, that even though a riparian and overlying right is not gained by use or lost by disuse, it may nevertheless be lost to an upper appropriator under the doctrine of prescription, if there is an actual, and not merely a threatened, invasion of the lower riparian and overlying owners' rights by the taking of water which the lower riparian or overlying owner needs for his present beneficial uses, if such taking is actual, open, notorious, hostile and adverse, continuous and uninterrupted for the statutory period of five years, and under claim of right. The protection to the lower riparian and overlying owner for his present needs is in self-help by the actual taking from the wrongful appropriator of the water needed by the riparian or overlying owner before the five year periodCity of Pasadena v. City of Alhambra, supra, 33 Cal.2d at page 931, 207 P.2d 17(a procedure manifestly impossible in this instance with the dam in the possession of the United States and under armed guard), or by seeking the aid of the Courts as here, in a form of declaratory judgment and injunction, or physical solution as soon as it becomes apparent from the stream or well levels, or the actual loss of water, or other conduct or threats, that he will be injured in his right. Peabody v. City of Vallejo, supra, and City of Lodi v. East Bay Municipal Utility District, supra.
City of Pasadena v. City of Alhambra, supra, is also authority for the proposition that a municipality or water district furnishing water to the inhabitants for domestic uses and owning overlying land may acquire an appropriative or prescriptive right to take underground water for domestic and municipal uses in both the overlying area and beyond.
As against a subsequent appropriator, the riparian and overlying owner has a paramount right to that flow of the water necessary for his reasonable beneficial uses, both present and prospective. Thus, though he can no longer compel the full flow of a stream through his property if the amount of that flow exceeds his needs for beneficial uses, he is entitled to so much of the flow, all, if necessary, or its equivalent, as is required for his beneficial uses. Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, at page 445, 90 P.2d 537, 91 P.2d 105; Gin S. Chow v. City of Santa Barbara, supra; Peabody v. City of Vallejo, supra; Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, supra; City of Lodi v. East Bay Municipal Utility District, supra.
What constitutes reasonable beneficial use or unreasonable use of water is a question of fact for judicial determination in the varying circumstances as they arise. And this is so *112 whether the right under consideration is riparian, overlying, appropriative, or prescriptive. Gin S. Chow v. City of Santa Barbara, supra; Meridian, Ltd. v. City and County of San Francisco, supra; Peabody v. City of Vallejo, supra; Turner v. James Canal Co., 1909, 155 Cal. 82, 99 P. 520, 22 L.R.A.,N.S., 401; Callison v. Mt. Shasta Power Co., 1923, 123 Cal. App. 247, 11 P.2d 60; Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, supra; Carlsbad Mutual Water Co. v. San Luis Rey Development Co., 1947, 78 Cal.App.2d 900, 178 P.2d 844.
It necessarily follows that what is surplus, excess or unappropriated water, or what is a waste of water, are also questions of fact for judicial determination, as surplus or excess water can exist only if there are no prior vested rights to the reasonable and beneficial use of it. Gin S. Chow v. City of Santa Barbara, supra, 217 Cal. at page 698, 22 P.2d 5; Matthiessen v. Montecito County Water District, 1933, 217 Cal. 788, 22 P.2d 19.
Although a riparian owner is protected as to present and prospective beneficial uses, the amount of water which he is entitled to have flow through or past his land at a given point in time is to be measured by his then present needs for reasonable and beneficial uses. City of Los Angeles v. City of Glendale, 1943, 23 Cal.2d 68, 142 P.2d 289; Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 1935, 3 Cal.2d 489, 525, 45 P.2d 972; Rancho Santa Margarita v. Vail, 1938, 11 Cal.2d 501, 81 P.2d 533; City of Pasadena v. City of Alhambra, 1949, 33 Cal.2d 908, 207 P.2d 17. His protection as to prospective needs is found in the doctrine that prescriptive rights are not acquired by taking or appropriation of surplus waters. City of Pasadena v. City of Alhambra, supra; Orchard v. Cecil F. White Ranches, 1950, 97 Cal.App.2d 35, 217 P.2d 143; City of Los Angeles v. City of Glendale, 1943, 23 Cal.2d 68, 142 P.2d 289.
The changing crop pattern forced by increases in population and economic conditions may make a riparian or overlying owner's land adaptable 10 years from now, five years beyond the period of prescription, to the raising of crops which require 6 acre-feet of water per year, whereas the land may now be growing crops which require only 2 acre-feet per year. If the present crops require only 2 acre-feet per year all above that is surplus and may be presently appropriated and no prescriptive right can ripen against it; the farmer cannot know today what economic or population conditions will require a change of crop pattern to which his land may be adaptable; he may not know today that the fruit which he is growing will have no market 10 years from now, and at the same time he may not know that rice with its excessive demands for water will be the only crop which will have a market and which he can grow, or that his land may be adaptable to grow potatoes in winter and cotton in the summer, or several crops of truck gardening in a year. Grapes are giving way in some instances to alfalfa, a thirstier crop, but one in increasing use because of the demands of the growing population for dairy products, with an immediate market.
It is stated in Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 1935, 3 Cal.2d 489, at page 525, 45 P.2d 972, that as to prospective beneficial uses of the riparian owners, the judgment or decree should declare such prospective uses paramount to any right of the appropriator in order to protect the riparian owner from losing his rights by prescription.
Inasmuch as it is the established law that prescriptive rights can accrue only as to non-surplus waterFall River Valley Irrigation District v. Mt. Shasta Power Company, 202 Cal. 70, 259 P. 444, 56 A.L.R. 264; City of Pasadena v. City of Alhambra, supra, 33 Cal.2d at page 926, 207 P.2d 17the above statement in Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, supra, *113 would at first seem to indicate that the difference between water presently needed and that which may in the future be needed by a riparian or overlying owner for his reasonable and beneficial uses is non-surplus water. However, it is clear from the later casesCity of Los Angeles v. City of Glendale, supra, and City of Pasadena v. City of Alhambra, supra that all water above that presently needed by the riparian and overlying owner is excess or surplus water, and may be appropriated, but no prescriptive right can accrue under such appropriation against the future reasonable and beneficial needs of the riparian and overlying owner. If there could be any doubt that such was the holding in City of Pasadena v. City of Alhambra, supra, it is dispelled by the dissent in that case where, 33 Cal.2d at page 944, 207 P.2d at page 39 the dissenting judge, in objecting to the decision of the majority stated: "Under the present rule, an appropriator may use water, incur obligations, etc., and then, later, when the riparian [or overlying] owner desires to use the water, have his rights taken from him." This statement is made by the dissenting judge in concluding his objections to the majority holding that a prescriptive right cannot be acquired in water not presently needed by the riparian or overlying owner, and that the riparian or overlying owner need not seek a declaratory judgment within the prescriptive period in order that water may be available to him in the future when he needs it.
In City of Los Angeles v. City of Glendale, supra, 23 Cal.2d at page 75, 142 P.2d 289, the Court pointed out that the Constitutional amendment destroyed the right of the riparian or overlying owner to object to the use of water not presently needed.
The pronouncements in the last above-cited cases that prescriptive rights are not acquired by the taking of surplus waters, seem to be in recognition of the fact that the giving by the Constitutional amendment of a right to appropriate, in derogation of the previous common law right of the riparian owner to have the full flow of the stream, left in the riparian owner a somewhat flexible right variable according to his needs, and that, as to the difference between present needs and prospective beneficial needs, the use by the upstream appropriator was either permissive or non-invasive as to the paramount riparian rights. This is eminently reasonable because any other doctrine would lead to excessive litigation in that a riparian or overlying owner would otherwise have to institute suit each time there was an attempted appropriation in order to protect his right to prospective beneficial use against loss by prescription.
The modification of the rights of riparian and overlying owners from an absolute right at all times to a flexible right dependent upon his needs, has thus resulted in a concomitant modification of the doctrine of prescription. Both rights have yielded under the cases to the Constitutional command of beneficial uses of all the waters of the State at all times.
Since a lower or overlying riparian owner is limited to water needed for reasonable beneficial use, and is protected against prescription by an appropriator of water in excess of, or surplus to, his present needs, the rule has evolved that mere proof of diminution of the flow of a stream by an upstream diversion will entitle the riparian owner or the overlying owner to an injunction only if it appears that after diversion there does not remain sufficient water to satisfy his reasonable demands for beneficial use; and, if the flow of water is not sufficient, he may compel the full natural flow of the river, if needed, or its equivalent, to meet those demands. The equivalent may be a physical solution, if one is possible, which subject is hereafter more fully discussed. Meridian, Ltd. v. City and County of San Francisco, supra, 13 Cal.2d at page 446, 90 P.2d 537, 91 P.2d 105.
Although it is a question of fact in each case as to what is a reasonable beneficial use, it has long been established that uses for domestic purposes, *114 irrigation, and municipal purposes, and storage for such purposes, are beneficial uses. It was held in Meridian, Ltd. v. City and County of San Francisco, supra, that storage for purposes of flood control, equalization and stabilization of flow, and future use, are beneficial uses, but that such right is subordinate to beneficial uses made in the exercise of riparian, overlying, and prior appropriative rights, and may be exercised only upon surplus waters pursuant to appropriations lawfully and properly made.
In the protection afforded to underground waters against an appropriator, the decisions recognize no difference in the rights of an overlying owner regardless of the manner by which the waters reach the underground, whether by percolating through gravel beds and beyond the land of the overlying owner City of Lodi v. East Bay Municipal Utility District, 1936, 7 Cal.2d 316, 60 P.2d 439or by forming an underground basin or lakeCity of Pasadena v. City of Alhambra, supra. In this respect the proposition announced in Miller v. Bay Cities Water Co., 1910, 157 Cal. 256, at page 279, 107 P. 115, 27 L.R.A.,N.S., 772, to the effect that the rights are equally protected, has not been modified or overruled. The only respect in which that case was modified in City of Lodi v. East Bay Municipal Utility District was to apply the doctrine of reasonable use, of the 1928 Constitutional amendment. The Lodi case requires a court to impose a physical solution, if one is possible, instead of permitting the enforcement of the right by injunction to a full flow of the river to force a small quantity of water into the adjacent underground.
Prior to 1928 one having vested rights was entitled to an injunction to compel the full flow of the river, and could not be compelled to accept a conditional injunction by way of a physical solution which would provide him with water and at the same time prevent waste.
The Statements in City of Lodi v. East Bay Municipal Utility District, Peabody v. City of Vallejo, and Rancho Santa Margarita v. Vail that one who has a vested right to take groundwater may not compel the full flow of a stream to force a relatively small quantity of water into the underground, must be read in light of the holdings in those cases that such overlying or riparian owner was nevertheless entitled to the full flow or to a physical solution which would give him the equivalent of the full flow of the stream "undiminished in quantity and unimpaired in quality." Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, at page 445, 90 P.2d 537, at page 547, 91 P.2d 105; Gin S. Chow v. City of Santa Barbara, supra; Hillside Water Co. v. City of Los Angeles, 10 Cal.2d 677, 76 P.2d 681; Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 3 Cal.2d 489, 45 P.2d 972.
Taking a single example, in City of Lodi v. East Bay Municipal Utility District supra, it was determined that although the takers from the underground did not have the right to the full flow, there was an obligation on the diverter to either maintain natural conditions to allow percolation or, at his expense, to supply water directly to the City, or work out some other physical solution in event of a dangerous lowering of the groundwater table.
It is of course a question of fact to be determined from all the evidence as to the amount of water which percolates from a stream, as well as the course and direction thereof.
Keeping in mind that we are not dealing here with rights inter sese between either riparian, overlying owners, or appropriators, it is well to state the rules as succinctly as possible, as evolved by the California cases, interpreting and applying the 1928 Constitutional amendment insofar as they are applicable in this case.[62] They are these:
*115 1. Reasonable and beneficial uses of water by reasonable methods of diversion and use are limitations equally applicable at all times, to all water rights, whether riparian, overlying, appropriative, prescriptive, or claimed public use;
2. The right of a riparian or overlying owner to all water necessary for the reasonable and beneficial uses to which his land is now or may be adaptable in the future is paramount to the right of any subsequent or inferior appropriator;
3. The water necessary for such uses may require the full natural flow of the stream, or its equivalent, by way of a physical solution;
4. Such rights of the riparian or overlying owner are enforceable by injunction or decree only as to his then present needs;
5. Water in excess of such then present needs is excess or surplus water, and is subject to appropriation until, and only until, the prior riparian or overlying owner needs the water for his then beneficial and reasonable uses, at which time the riparian or overlying owner is entitled, as against the appropriator, to enforce such use by injunction or decree;
6. The appropriator of such surplus or excess water can acquire no right by prescription to such surplus against the prior riparian or overlying owner, and the riparian or overlying owner need not bring suit within the prescriptive period of five years to protect that right;
7. Prescriptive rights can be acquired against a prior riparian or overlying owner by an appropriator who takes the water presently needed by the riparian or overlying owner, if the taking is an actual taking, not merely a threatened one, and if it is open, notorious, hostile and adverse, continuous and uninterrupted for a period of five years, and under claim of right;
8. Such prescriptive right can be prevented by the filing of a suit by the riparian or overlying owner, or "self-help" (actual taking of water used by the appropriator) within five years.
It is thus seen from the cases that under the California Constitutional amendment of 1928 making all rights to the use of water subject at all times to reasonable and beneficial uses by reasonable methods of diversion and use, that a right to a fixed and given quantity of water in the flow of any stream cannot be permanently established against the world, regardless of the claim of right or method of taking the water. While the Constitutional amendment thus results in uncertainty as to any permanent measureable quantity of water to which any right may be entitled, it does result in the certainty, born of necessity, that waste of water will be minimized, and that the maximum amount of water will be available for beneficial uses.
With these general observations the Court will now turn to the discussion of specific claimed rights of the various parties.
XII.
California Water Rights of Plaintiffs.
From the facts disclosed by the evidence, it is clear, under the California law, that:
1. The plaintiffs and members of their class lying within the alluvial cone of the San Joaquin river had vested rights, riparian, overlying, appropriative and/or prescriptive to the full natural flow of the San Joaquin river for surface diversion as it flowed between Friant and Gravelly Ford, and for charging, recharging and replenishing the underground waters within the alluvial cone of the San Joaquin river as it flowed between Friant and Mendota; as will later appear, the precise nature of the right attaching to each individual parcel of land is immaterial.
2. These rights were vested for many years, at and prior to the time of the commencement of the Friant project or *116 any of the events leading up to it, and at and prior to the adoption of the 1928 Constitutional amendment, and at and prior to any legislation by the State of California and the United States, and at and prior to the time of filing any of the applications to appropriate water now held by the United States, and at and prior to the assignment of those applications to the United States, and at and prior to the execution of the Purchase and Exchange contracts and other contracts; and at and prior to filing the within suit;
3. No legislation adopted by the State of California or by the United States deprived the plaintiffs or the members of their class of those rights in any degree, or indicated any intention to do so, and no engineering or other reports on the Central Valley Project, or any statements therein by either the State of California or the United States deprived them of those rights in any degree;
4. The 1928 Constitutional amendment safeguarded those rights and did not destroy them, but limited them to such portion of the natural flow of the San Joaquin river, all, if necessary, or its equivalent,[63] required to satisfy the demands for reasonable and beneficial uses by reasonable methods of diversion and use to which the land is presently or in the future may be adaptable, not only for surface diversion but for the purpose of recharging and replenishing the underground supply;
5. The impounding and diversion of water at Friant, as threatened shortly before this suit was filed, and as since carried out by defendants, and proposed to be carried out in the future, did not and does not and will not permit sufficient water to flow down the river to satisfy the lawful rights of the plaintiffs and their class as above set forth;
6. Those rights were at the time of the filing of this suit, and hence are now, paramount and superior to any rights of the defendants, or any of them, and the impoundment and diversion of water at Friant as threatened, carried out, and proposed, will be an impingement upon, and an injury to those rights, and thus unlawful as to those rights, unless, prior to the filing of this action (a) the defendants acquired superior rights by affirmative action, or (b) the plaintiffs and their class lost those rights by inaction, to which questions the court now turns.
XIII.
California Water Rights of Defendants.
The affirmative action upon which defendants rely is not clearly stated, but depends either upon rights under (a) the so-called Miller and Lux Purchase and Exchange contracts and other contracts, which raises the question of (b), the right to change the point of diversion; (c) the assigned applications to appropriate; or (d) prescription by the actual building of the dam and works and the ensuing impounding and diversion of water.
The asserted inaction of plaintiffs, upon which defendants rely, is claimed (e) laches, (f) estoppel, and (g) intervention of public use.
In dealing with each of the contentions of the defendants it is only necessary to determine in each instance whether the United States acquired any water rights superior to the vested rights of the plaintiffs and their class. If superior rights were acquired, it would follow that plaintiffs and their class could not object to any encroachment upon their needs to water. If no superior water rights were acquired by the United States, it follows that the vested water rights of the plaintiffs and their class are paramount and are entitled to that protection which a Court of equity is empowered to provide. The precise extent of that protection to which paramount vested rights are entitled in the case of an encroachment by inferior rights will be dealt with under the heading "Physical Solution."
*117 Turning to the rights claimed by defendants to exist on the basis of affirmative action by them, the Court will consider first the so-called Purchase and Exchange contracts.
XIII.
(a) Purchase & Exchange Contracts.
(b) Change of Point of Diversion.
The phrase "Purchase and Exchange Contracts" refers to a number of contracts whereby the United States purchased water rights in some instances, and in other instances also agreed to give water in exchange for that purchased.
Copies of some of the contracts are collected in Exhibit A-48-A, and data concerning the others is also included therein.
Those relinquishing their water rights to the United States may be referred to as the "grantors." In essence, the grantors fall into two groups with relation to the location of their property: The first group consists of a number of riparian owners interspersed along the San Joaquin river between Friant and Mendota; these grantors contractually relinquished their riparian rights to the United States without conveying their lands; the second group, which is emphasized by the defendants as being of greater importance, consists essentially of appropriators of water and riparian owners downstream from the lands of plaintiffs; by contract they also relinquished to the United States their water rights of whatever character without conveying their lands.
More specifically, the first group covers about a hundred contracts which were made beginning in 1944 and continued after the commencement of this action, whereby the owners of riparian rights upstream from Mendota, severing their water rights from their land, relinquished those rights to the United States without transferring their land. Included in this group are the Edison Securities contract,[64] and the Madera Irrigation District contract only insofar as its riparian rights are concerned, as well as other contracts concerning those riparian lands which had so-called Miller and Lux Reservations.
The second group involves land owners or appropriators mostly at or downstream from Mendota, although some involved diversions at and between Gravelly Ford and Mendota. As to the plaintiffs and their class, the same principles of law apply whether the diversion was below Gravelly Ford or Mendota. The two principal contracts in this group are the so-called Miller and Lux Purchase contract and the Miller and Lux Exchange contract.[65] Inasmuch as what is said concerning the rights between plaintiffs and their class and the defendants, arising out of the Miller and Lux contracts, applies equally to the other contracts, the other court will not be described.
These two contracts were dated July 27, 1939. The contracts were between the United States and Miller & Lux, Inc. and the Gravelly-Ford Canal Company, Inc., but were consented to by the Canal Companies controlled by Miller and Lux, namely, the San Joaquin and Kings River Canal & Irrigation Company, Inc., the San Luis Canal Company, the Firebaugh Canal Company, and the Columbia Canal Company, all of whom may be regarded as grantors. Under the Purchase contract, in substance, the United States agreed to pay the sum of $2,450,000 for the right, as against the grantors and as against the lands of the grantors specifically described, to divert, store, and use by means of Friant dam "all the waters of the San Joaquin river measured at Whitehouse gauging station, as they would flow in the absence of operations by the United States, in excess of the aggregate 24-hour mean flows in cubic feet per second as specified in the schedules *118 set out in the contract, which ranged from a minimum of a release of 400 second-feet in January, to a maximum of 2,475 second-feet during July of each year.[66] Under the Exchange contract, in substance, the grantors agreed that when, and only when, the United States supplied substitute water below Whitehouse gauging station at Mendota pool in the quantity equal to that set forth in the schedules above referred to in the Purchase contract, the United States could store and divert the waters of the San Joaquin river at Friant, insofar as the grantors only were concerned. The substitute waters were to be furnished from the Sacramento river by way of what is now the Delta-Mendota canal. Miller and Lux retained their riparian and appropriative rights to San Joaquin water in the amount set forth in said schedules, which is in excess of 1,000,000 acre-feet per year. These contracts together provide in substance that in exchange for the waters of the San Joaquin river formerly used or purveyed by the grantors, the United States paid approximately $2,500,000 under the Purchase contract and agreed, by the Exchange contract, to furnish water to the grantors, from the Sacramento river by way of what is now the Delta-Mendota canal, to empty into the Mendota pool to supply the uses for water to the lands formerly served by all of the Canal Companies which theretofore took water from the San Joaquin river either above Mendota or at Mendota; that is to say, the San Joaquin river waters which the grantors had the right to take, either above or below Mendota, and to use below Mendota, were to be exchanged at Mendota for Sacramento river waters. If at any time the exchange water from the Sacramento river is not furnished at Mendota, the grantors in the Miller and Lux contracts have the right to receive that flow set forth in Footnote 66, ante, from the San Joaquin by releases from Friant dam.
The question is: what rights, if any, were acquired by the United States as against the plaintiffs and their class, by those contracts?
As to the rights acquired from the first group, riparian owners along the San Joaquin river who contractually relinquished their rights to the United States, the law is well settled in California.
The effect of a grant of riparian rights as separate from the land is simply to convey the grantor's right to the use of water on his own riparian land, and to estop the grantor to complain against any use of water the grantee may make to the injury of such riparian right. The "estate or interest acquired" by the grantee consists of a *119 waiver of any right of the riparian grantor to insist on his riparian interests. The purchaser merely buys the riparian's right to object to the purchaser's use. The one riparian owner or any number less than all cannot by grant extinguish or diminish the riparian rights attaching to the land of other non-consenting riparian owners, and the conveyance does not in any manner affect their rights. Spring Valley Water Co. v. County of Alameda, 88 Cal.App. 157, at pages 164-169, 263 P. 318; Carlsbad Mutual Water Co. v. San Luis Rey Development Co., 1947, 78 Cal.App.2d 900, 911, 178 P.2d 844; Mt. Shasta Power Co. v. McArthur, 1930, 109 Cal.App. 171, 192, 292 P. 549; California Pastoral & Ag. Co. v. Madera Canal & Irrigation Co., 1914, 167 Cal. 78, 86, 138 P. 718.
Riparian rights, being part and parcel of the land to which they attach, must be exercised and the use must be made only on the parcel of land to which the rights attach; and such rights cannot by transfer be made to attach to any other parcel of land. Parker v. Swett, 1922, 188 Cal. 474, 485, 205 P. 1065. And when a riparian right is severed from the land to which it is attached by transfer, it cannot thereafter be classed as a riparian right. Spring Valley Water Co. v. County of Alameda, 1927, 88 Cal.App. 157, 263 P. 318. It follows that when a change in the point of diversion of water is made, or attempted to be made, to land other than that to which the riparian right formerly attached, then the law governing the right to divert is the law relating to appropriation of water, and not the law relating to riparian rights.
These principles of law apply with equal force to whatever riparian rights were transferred by those in both the first and second group.
The delineation of California law leads immediately to the conclusion that, by the contracts for the transfer to the United States of the riparian rights, the United States acquired no rights against the plaintiffs, who, as indicated, possess riparian, overlying, appropriative and prescriptive rights to the full natural flow of the San Joaquin river, if needed. The United States acquired only a right to invoke the doctrine of estoppel against the lands and their owners covered by those contracts. It did not by those contracts acquire the right, as against plaintiffs and their class, to impound and divert any water at Friant.
A further consideration of the second group of contracts exemplified by the Miller and Lux contracts, commences with an examination of the case of San Joaquin & Kings River Canal Co. v. Worswick, and Miller & Lux, Inc., v. Worswick, decided in 1922 187 Cal. 674, 203 P. 999, certiorari denied 258 U.S. 625, 42 S.Ct. 382, 66 L.Ed. 797. It is of especial significance in that both Miller & Lux, Inc. and the San Joaquin & Kings River Canal Company were grantors in the Purchase and Exchange contracts, and the rights adjudicated in that case were among those transferred to the United States by such contracts.
In the above-mentioned case, the plaintiffs San Joaquin & Kings River Canal Company and Miller and Lux were downstream appropriators, and Worswick and others, the defendants, were upper riparian owners of land situated on the San Joaquin river between Mendota and Friant, as are the plaintiffs here.
Among other contentions upon which the plaintiffs relied in that case was the assertion that at the time of the appropriation of water, the lands of the riparian defendants were public lands, as were the lands of plaintiffs, and that plaintiffs' appropriations, being prior to the acquisition of the lands by defendants, they, the defendants, had no right to divert or use the water on their riparian lands. The decision of the question turned on whether or not the lands of the plaintiffs, Miller & Lux and the Canal Company, were public lands at the time of their appropriation of water. The Court affirmed the doctrine recognized by the California decisions that water rights acquired by an appropriation *120 or diversion on private land which lay downstream from an upper riparian or diverter are not superior to the riparian rights pertaining to any land above the place of diversion; and also affirmed the doctrine of previous cases that where a diversion is made by an appropriator on land then belonging to the United States, the right of the appropriator to the water thereby taken is superior to the riparian rights of a subsequent purchaser from the United States of riparian land lying above the point of diversion. But the Court held that the lands of Miller and Lux and the Canal Company were not public lands at the time of their appropriation and diversion of water, but were private lands, and hence, they acquired no right by appropriation, prescriptive or otherwise, and could acquire no right, prescriptive or otherwise against the upper riparian owners.
The general rule applicable here, affirmed in that case, and since, is as follows: A riparian proprietor's right to object to any use or diversion of water ceases when the water has flowed past his boundary, hence, any diversion below his land, regardless of how long continued or what may be the nature of the claim of right, whether riparian or appropriative, is not an invasion of the upper riparian's rights, and thus is not and cannot be a hostile or adverse use which may ripen into prescription. San Joaquin & Kings River Canal Co. v. Worswick (Miller & Lux v. Worswick), 1922, 187 Cal. 674, 203 P. 999, certiorari denied 258 U.S. 625, 683, 684, 42 S.Ct. 382, 66 L.Ed. 797, cited with approval after the 1928 amendment; Akin v. Spencer, 1937, 21 Cal.App.2d 325, 69 P.2d 430, hearing denied by California Supreme Court; Peake v. Harris, 1920, 48 Cal. App. 363, at pages 381-382, 192 P. 310, Opinion of Supreme Court on hearing; Hargrave v. Cook, 1895, 108 Cal. 72, 77, 41 P. 18, 30 L.R.A. 390.
It is well established that while an appropriator of water may change the place of diversion when the rights of others are not adversely affected thereby, the place of diversion cannot be changed to an entirely different tract when to do so will adversely affect the rights of intervening owners. City of San Bernardino v. City of Riverside, 1921, 186 Cal. 7, 198 P. 784; Scott v. Fruit Growers Supply Co., 1927, 202 Cal. 47, 258 P. 1095; City of Lodi v. East Bay Municipal Utility District, 1936, 7 Cal.2d 316, 60 P.2d 439. The provisions in the Water Code relating to change of point of diversion, by an appropriator of either surplus or non-surplus water, Sections 1701-1706 inclusive, are in accord with the holdings of the above cases.
Applying the above rules to the second group, i. e., those owning rights downstream from plaintiffs, and who, as grantors, contracted with the United States, it is apparent that such grantors had no riparian rights superior to plaintiffs and their class, and acquired no appropriative or prescriptive rights of appropriation against plaintiffs and their class as upstream owners of vested water rights, by the downstream use or appropriation of water. It is true that insofar as the downstream users may have been exercising riparian and overlying rights, the doctrine of correlative rights gave the right to each owner to enforce reasonable, beneficial use by upstream owners, but this same doctrine now applies to all water rights. However, this right to enforce reasonable beneficial use between similarly situated riparian and overlying owners gave no superior position to downstream rights but left them in the inferior position of being entitled to only that water which reached them after the reasonable beneficial uses to which those above desired to apply the water, were satisfied.
Thus, at the time of the contracts, the downstream users, whether riparian or appropriative, and howsoever acquired, had only rights inferior to the plaintiffs and their class.
Not only were the downstream rights inferior in this respect, but under the cases above cited and the California *121 Codes,[67] the downstream users who were grantors to the United States could not have changed the point of diversion to Friant to the detriment of the intervening vested rights of the plaintiffs.
It is axiomatic that the users downstream from the plaintiffs could not create in the United States, by the contractual relinquishment of their rights to the United States, any higher right than they themselves possessed and could exercise.
It follows that the United States, by the Purchase and Exchange contracts, and the other contracts above described, acquired no water rights superior to plaintiffs, and acquired no right to divert and impound water at Friant to the detriment of the plaintiffs and their class as owners of vested rights between Friant and Mendota.
XIII.
(c) Applications to Appropriate Held by the United States.
Various applications to appropriate water were filed under the California Water Code, and were assigned to the United States in 1939. Two were previously held by the Madera Irrigation DistrictNo. 234 filed January 19, 1916, designating Friant as the place of diversion, and No. 1465 filed September 26, 1919, designating Friant on the San Joaquin, and Henrietta on Fine Gold Creek as the place of diversion.[68] Miller and Lux filed six applications, No. 5817 to No. 5822 inclusive, in February, 1928, designating various places of diversion, both above Mendota and below. Two were filed by the Department of Finance of the State of California, No. 5638 on July 30, 1927, designating Friant as the place of diversion, and No. 9369 on August 2, 1938, designating Friant and Temperance Flat (above Friant) as the place of diversion. The United States amended all applications on December 20, 1951 (three years after this suit began), seeking to change the point of diversion to Friant dam on all of them, except various alternate points of diversion were designated in the Miller and Lux assigned applications.[69]
None of the applications have been pursued to permit. And, although some had been pending for more than 30 years, no hearings were called by the State until seven years after this action had been pending.
*122 The total amount of water sought to be appropriated in the aggregate by the applications exceeds 4,210,000 acre-feet per annum, as against the average annual flow of 1,800,000 acre-feet per annum, and the highest recorded flow since 1908 of 3,560,000 acre-feet which was in 1911.
The California Water Commission Act as adopted in 1913, Cal.Stats.1913, p. 1012, and as variously amended thereafter, was codified in 1943 as part of the California Water Code.
The portion of the Water Code relating to applications to appropriate water is Part 2 of Division 2 of the Water Code, Sections 1200 to 1801 inclusive.
The Water Commission Act and the Water Code relating to appropriation of appropriable, i. e., surplus waters, was introduced into the law to bring some orderly procedure to the matter of appropriation of waters, which was originally accomplished by merely taking them, and later by the posting of a notice followed by the actual taking and use of water. Bloss v. Rahilly, 1940, 16 Cal.2d 70, 75, 104 P.2d 1049.
The general scheme of Part 2 of Division 2 of the Water Code provides for the filing of an application to appropriate, the giving of a notice of hearing, the holding of a hearing, the granting of the permit, to be followed by construction of diversion works, and upon the completion of diversion works, to be followed by a license from the State of California.
It was held in Crane v. Stevinson, 1936, 5 Cal.2d 387 at page 391, 54 P.2d 1100, at page 1102, that acquisition by appropriation of waters subject to appropriation, i. e., surplus water, "is regulated by the provisions of that law."
By Section 1200 it is provided that the provisions of the Water Code, relating to applications to appropriate water, apply only to surface water and subterannean streams flowing through known and definite channels, and not to underground percolating waters. Gould v. Eaton, supra; City of Pasadena v. City of Alhambra, supra, and by Sections 1201-1202 only surplus water in such streams is subject to appropriation in the manner provided for by the Code.
Section 1225 of the Water Code, § 1c of the Water Commission Act, in 1936, at the time of the decision in Crane v. Stevinson, supra, provides as follows: "No right to appropriate or use water subject to appropriation shall be initiated or acquired except upon compliance with the provisions of this division." Section 1380 provides for the issuance of a permit upon approval of an application, after hearing and notice; Section 1375 declares as a prerequisite to the issuance of a permit that it must appear, inter alia, that there is unappropriated water available to supply applicant; Section 1381 provides that "The issuance of a permit gives the right to take and use water only to the extent and for the purpose allowed in the permit"; Section 1390 provides that the permit is effective for such time as water is actually appropriated and put to beneficial use, but no longer; Section 1395 requires that construction work upon any project shall begin within the time provided in the permit, which time shall be not less than 60 days from the date of the permit, but may be extended; Section 1396 requires the prosecution of the work with due diligence; Section 1410 is important in connection with the general scheme of the Code that a permit shall be issued before work is commenced, in that it provides that if work is not commenced, prosecuted and completed, or water appropriated to beneficial use as contemplated in the permit, the permit may be revoked after a hearing, and the water made subject to further appropriation; Section 1455 provides that the issuance of a permit continues in effect the priority of a right as of the date of the application, and "gives the right to take and use the amount of water specified in the permit until the issuance or the refusal of issuance of a license for the use of the water"; Chapter 9, Sections *123 1600-1677 inclusive, relates to the issuance of licenses upon completion of the project, and provides that such licenses shall be under the terms and conditions of Division 2, and shall be effective only so long as the water is appropriated and put to a useful and beneficial purpose, but no longer; that chapter also provides for revocation of licenses; Chapter 10, Division 2, §§ 1700-1706, deals with the change of point of diversion, and permits such change if the change will not operate to the injury of any legal user of the water involved.
While the plaintiffs assert that the assignments made by the Department of Finance of the State of California in 1939 to the United States are contrary to the California Constitution and laws in that they purport to transfer to the United States "all right, title and interest in and to the water" covered by them, it is not necessary to reach that question here, but it will be treated hereafter under the heading "Watershed and County of Origin Statutes."
The query is: Did the United States, by the assigned-applications to appropriate water, acquire any right to take water at Friant superior to the rights of the plaintiffs and members of their class?
It is clear from the sections of the Water Code above mentioned that the mere filing of the applications and their assignment, and the amendment of such applications filed by the United States, did not vest in the United States any right to appropriate, i. e., impound and divert, water at Friant, either surplus or non-surplus. City of San Bernardino v. City of Riverside, 186 Cal. 7, 138 P. 997 at pages 13-14, 198 P. 784; Palmer v. Railroad Commission etc., 167 Cal. 163, 172.
To hold that by the mere filing of applications, or the assignment thereof, to the United States, or the amendments thereto by the United States, a right was acquired to appropriate, impound and divert water at Friant would be to entirely disregard the provisions of the Water Code, which are clear, absolute and positive that "No right to appropriate or use water * * * shall be * * * acquired" (S. 1225), except upon the compliance with the provisions of the Code, and that the issuance of a permit gives the right to take and use water, Sections 1455 and 1381. Not only would such a holding be in complete disregard of the specific provisions of the Water Code, but to hold that one who is in a position of power may, by the filing of an application, the building of a dam, and the impounding and diversion of water, thereby acquire rights to the whole flow of a stream in derogation of all lower rights, would be to completely ignore the Constitutional amendment and the Water Code, and the long preceding history of legislation substituting orderly procedure and law for the doctrine which previously obtained in California that "might is the only protection. `The good old rule Sufficeth them, the simple plan, That they should take who have the power, And they should keep who can.'" Katz v. Walkinshaw, 1903, 141 Cal. 116, at page 128, 70 P. 663, 74 P. 766, at page 769, 64 L.R.A. 236.
The United States is now actively pursuing these applications, the hearing on which was enjoined until the final decision of this suit. If the United States were the owner of the "fee title" to the water or its use, or otherwise had the right to impound and divert at Friant, there would be no need to file applications or secure permits to appropriate water.
The simple fact that the amount sought to be appropriated annually as surplus water, viz.: 4,210,000 acre-feet, is 2,410,000 acre-feet more than the average flow, and 650,000 acre-feet more than the highest flow ever recorded, is sufficient in itself to show how impossible it is, under any contemplation of the applicable law, to hold that the mere filing of the applications, or their assignment and amendment, without more, gave a vested right to impound and divert the entire flow of the river. If the *124 mere filing of the applications gave a vested right to the flow of the water claimed therein, against downstream riparian and overlying owners, then all downstream rights were thereby extinguished because more water is claimed as surplus than ever flowed in the river. If the filing of the applications gave a vested right to an amount less than that claimed, then all lower rights were endangered, as none could tell whose right was to be appropriated, or the amount thereof. If such vesting of right by filing the applications were to occur, there would have been no need in the United States to make the payment to the Miller & Lux Canal Companies of the sum of $2,450,000 on the Purchase and Exchange contracts, or to expend approximately $70,000,000 in building the Delta-Mendota canal to furnish Sacramento river water to downstream owners below Mendota, in exchange for San Joaquin river water, or to make other payments to downstream owners on the San Joaquin river above Mendota. If the rights were acquired by the filing of the applications in derogation of the rights of these plaintiffs and their class, then they were in derogation of all other downstream owners, and there would have been no need to pay anybody any money.
Another thing which shows that the filing of the applications vested no rights is the fact that the applications as filed and as amended by the United States in 1951, were by their text and terms "subject to existing rights" or "subject to vested rights."
Even if applications to appropriate water might under some conceivable theory of law be held to give a right to appropriate water, the provisions of the Water Code and the cases heretofore adverted to, limit any right of appropriation under the Water Code to surplus waters. As appears from the evidence and cases above mentioned in the general discussion, the plaintiffs and their class as riparian and overlying owners, have vested rights to all of the water that can be put to a reasonable and beneficial use by reasonable methods of diversion for which their land is or may be adaptable, and to all of the flow of the stream if necessary, or its equivalent, which rights are paramount to any right of the appropriator. These rights, under the evidence, existed long prior to the filing of any of the applications.
As noted in the discussion of general California water law, the water required to satisfy the present needs for beneficial uses of the plaintiffs and their class as riparian and overlying owners, is not surplus and cannot be appropriated under the Water Code, Sections 1200 to 1801 inclusive. If water is not presently needed, it may be appropriated as surplus water, under those sections of the Water Code, until the riparian and overlying owner needs it for his reasonable and beneficial uses, at which time it ceases to be surplus water, and can no longer be appropriated. Thus no right to appropriate water needed by the plaintiffs for either present or prospective uses could vest by the filing of the applications to appropriate water, or by their assignment or their amendment or the granting of permits and licenses thereon.
A riparian owner has a present vested right before the appropriation begins, and his right cannot be divested by filing notices of intention to appropriate, or applications to appropriate, Turner v. East Side Canal & Irrigation Co., 1915, 169 Cal. 652, 147 P. 579, or the granting of permits to appropriate.
The ultimate conclusion regarding these applications to appropriate is that neither the bare applications nor the assignment thereof to the United States, nor the amendment thereof by the United States, gave any right to appropriate any water at Friant; that the right to appropriate any water under the statutory scheme depends on compliance with the Statutes and the granting of a permit; that there has been no compliance with the Statutes, and no *125 permits have been issued on the applications to appropriate at Friant; that even upon compliance with the statutory procedure and obtaining of permits to appropriate, only surplus waters can be appropriated under the Water Code, and no prescriptive right can attach thereto; that water presently needed for prior vested rights is not surplus; that even by a full compliance with the statutory procedure for appropriation of surplus waters in a stream, and the granting of permits and licenses, whatever rights are thereby acquired are subject to the prior vested rights of plaintiffs and their class to all of the water presently or prospectively needed for useful and beneficial purposes to which their land is or may be adaptable in the future, by reasonable methods of diversion and use.
Further discussion of the applications to appropriate water will be had under the headings "Public Use," "Watershed and County of Origin Statutes," and "City of Fresno."
XIII.
(d) Prescription.
Since the United States did not acquire any water rights superior to plaintiffs and their class by the applications to appropriate surplus water, did the United States by the impounding and diversion of water at Friant acquire any prescriptive rights against the plaintiffs?
In the determination of that question, several principles of California law, as set forth above, must be recalled.
First, a prescriptive right is acquired only where the use by the appropriator is actual, open and notorious, hostile and adverse to the riparian owner, continuous and uninterrupted for the five year prescriptive period, and under claim of right.
Second, since 1928 an appropriation of surplus waters is not a trespass on the rights of a lower riparian, and thus cannot be adverse or hostile, and cannot ripen into a prescriptive right.
Third, an appropriation of non-surplus waters, i. e., waters needed by the riparian or overlying owner, is a trespass, and wrongful, and may result in a prescriptive right as against the riparian or overlying owner.
Fourth, a lower riparian is protected as to both present and prospective water needs for reasonable beneficial uses, but the existence of surplus subject to a proper appropriation is determined with reference to his present needs, and all water above those needs is surplus at that time; when the amount of water needed by him increases, the additional water needed by him ceases to be surplus, and, if not released to him upon demand, the retention of that additional water is a trespass; but since that additional water continues to be surplus until it is needed by him, no prescriptive right can stem from its use until that time by the upper appropriator.
It is common sense that there is no invasion of the rights of a riparian owner, pumping directly from the river, until that water presently needed by him for his reasonable beneficial uses fails to come down the river in useable quantity.
It is likewise common sense that the rights of an overlying owner are invaded by an appropriator of waters from the source supplying the underground when the water level of the wells of the overlying owner drops in a manner indicating that the drop is due to a failure of supply. When this occurs his rights are invaded though he may still obtain water by further depleting any available underground reserve.
This common sense view is taken by the California cases which hold that there must be an act of invasion of a plaintiff's rights to commence the running of the prescriptive period. City of Pasadena v. City of Alhambra, 1949, 33 Cal.2d 908, 207 P.2d 17; City of Los Angeles v. City of Glendale, 1943, 23 Cal.2d 68, 142 P.2d 289; Morgan v. Walker, 1933, 217 Cal. 607, 20 P.2d 660; Pabst v. Finmand, 1922, 190 Cal. 124, *126 129, 211 P. 11; Moore v. California Oregon Power Co., 1943, 22 Cal.2d 725, 140 P.2d 798;[70] Faulkner v. Rondoni, 1894, 104 Cal. 140, 37 P. 883; Lakeside Ditch Co. v. Crane, 1889, 80 Cal. 181, 22 P. 76; Alta Land & Water Co. v. Hancock, 1890, 85 Cal. 219, 24 P. 645, 20 Am.St.Rep. 217; Hargrave v. Cook, 1895, 108 Cal. 72, 41 P. 18, 30 L.R.A. 390; City of San Diego v. Cuyamaca Water Co., 1930, 209 Cal. 105, 287 P. 475.
Under California law, the prescriptive period is interrupted by the filing of a suit which is pursued to judgment.
Suit having been filed September 25, 1947, the prescriptive period began five years before thisSeptember 25, 1942so the crucial question of fact is whether or not throughout that period there was any actual invasion, by impounding, storage and diversion of water in Millerton Lake back of Friant dam, of the rights of plaintiffs and their class to all of the water that could then be put to beneficial uses.
While the letter to the plaintiffs, [Exhibit 162] from Boke, stated that it is "claimed by some" that the storage of water occurring in 1941 was the date of the beginning of the prescriptive uses, the position of the defendants in that respect is not now clear. In any event, the impounding of 17,400 acre-feet of water back of the dam below the river outlets in 1941, being less than one per cent of the total flow of the river for that year, (2,607,000 acre-feet) did not, under the California cases, constitute an invasion of the rights of plaintiffs to water flowing in the river for their needs for beneficial uses. Especially is this so in view of the fact that no water at all was impounded in Millerton lake back of Friant dam from 1941 to 1944.
Prior to the beginning date for the prescriptive right to commence, viz.: September 27, 1942, there was no impounding of any water needed by plaintiffs and their class. Beginning in February, 1944, storage was made through June and again in October, November and December, but in the months of July, August, September and October, 1944, 219,790 more acre-feet of water was released downstream from Millerton lake through the outlets in Friant dam than flowed into Millerton lake. Only for a few days during April through September, 1944, was the flow of the river less than 2,000 second-feet, and many days it was more. In 1945 the same pattern was repeated except that the flow of the river at one time *127 was as high as 6,540 second-feet in May, and for a period of 30 days from April 20th to May 20th the flow exceeded 5,000 second feet. Many days throughout 1945 more water was released from Millerton lake through Friant than flowed into Millerton lake, and again in the months of July, August, September and October more water was released from Millerton lake through Friant than flowed into Millerton lake.
In 1946 the pattern was again repeated with flows exceeding 6,000 second-feet for a number of days in May, but with more water being released from Millerton lake through Friant than flowed into Millerton lake in July, August, September and October.
In 1947 the same pattern was again repeated. Many individual days considerably more water was released from Millerton lake than flowed into it, and except for a few days during the months of April through September was there a flow of less than 2,000 second-feet, and for a considerable number of days there was a much larger flow. In April, June, July, August, September and October larger flows were released from Millerton lake through Friant than flowed into Millerton lake.
Thus the flow of the river past Friant was in fact increased within the prescriptive period, although the pattern of the flow of the river past Friant was generally the same as during the five previous years since the power dams were built upstream from Friant in 1932.
It is important to note in that connection that all during the prescriptive period large flows occurred, up to as high as 6,000 second-feet, which performed the function of flushing the river of fines and algae which would fill the openings of the aquifers, and which large flows, with their force and volume, under all of the evidence in the case, contributed to the replenishment of the underground water in the area involved in this case. As one of defendants' witnesses put itThe large flows in the river acted as a water dam, and forced water out through the aquifers and adjacent permeable materialand all witnesses conceded that the greater the wetted perimeter, the greater the percolation.
While the letter of July 15, 1947, from Boke, constituted a threat to take plaintiffs' water, it was not until long after the trial started that the defendants proposed, in satisfaction of plaintiffs' rights, to release down the river only 48,400 acre-feet of water per year.
The evidence conclusively shows that on or prior to September 25, 1942, no water then needed for the actual and beneficial uses of the plaintiffs had been actually impounded or diverted; and that after the impounding began there was, nevertheless, sufficient water that flowed in the river past Friant dam to meet the then present needs of the plaintiffs and their class for beneficial uses, both for those pumping directly from the river and for those pumping from the underground; and that the flow of water needed by plaintiffs and their class for their reasonable beneficial uses was not impeded until after this suit was filed. Only water which was surplus as to the plaintiffs' then present needs was impounded prior to the time this suit was filed, and since the 1928 Constitutional amendment, the plaintiffs could not object to any impounding of surplus. City of Los Angeles v. City of Glendale, supra, 23 Cal. 2d at page 75, 142 P.2d 289. Consequently, the prescriptive period as to the non-surplus waters had not begun to run when suit was filed, and no prescriptive rights were acquired.
This would be ample to dispose of the claim of prescription, but there are buttressing reasons why no prescriptive rights were obtained against these plaintiffs and their class.
The plaintiffs and their class herein were assured continuously and repeatedly that their water rights would not be taken, that they would have plenty of water, and in fact, that the flow of it *128 would be increasedD.C., 90 F.Supp. 773. And, as above noted, during the summers of 1944, 1945, 1946 and 1947, more water was released from Millerton lake into the river channel through Friant than flowed into it. The case of Pyramid Land & Stock Co. v. Scott, 1921, 51 Cal.App. 634, 197 P. 398, is direct authority for the proposition that where there are such assurances, there can be no hostile use under claim of right. Furthermore, the letter of the Secretary of the Interior, dated March 30, 1953, states that the United States "will release from Friant Reservoir into the bed of the river a sufficient quantity of water (1) to meet all valid legal requirements for the reasonable and beneficial use of water, both surface and underground, by reasonable methods of diversion and reasonable methods of use in that area."
If a prescriptive right could be acquired against a downstream riparian or overlying owner, insofar as a surface stream is concerned, by the mere construction of a dam and the impounding and diversion of waters, surplus or non-surplus, then in order to protect the right to reasonable and beneficial uses of which his land presently is, or may be, adaptable, every riparian and overlying owner in the whole Central Valley whose lands lay below any of the dams which have been built[71] would have to, or would have had to, bring a suit within the period of five years from the date the first drop of water was impounded to protect the use to which not only his land is presently adaptable, but also to which it may be adaptable in 10 or 20 years. Or stated another way, every riparian and overlying owner, covering millions of acres of land in the whole Central Valley, depending on the surface streams where dams have been built for more than five years, who has not filed a suit, would have lost his right to water uses, and the language of the Constitution, that he has the right to all water to which his land may be adaptable for reasonable and beneficial uses, would be meaningless, as well as the holding of the many California cases decided since 1928 to the effect that the rights of lower riparian and overlying owners, supplied on the surface or by replenishment of the underground, are paramount and protected by the Constitutional amendment.
The conclusion is inescapable, on the law and on the evidence, that no prescriptive rights were acquired by the United States or any defendant or the State of California against the downstream vested rights of the plaintiffs.
Nearly every element necessary to satisfy the doctrine is missing on the facts of this case.
XIII.
(e) Laches.
(f) Estoppel.
Although some of the elements of laches and estoppel are involved in the doctrine of the intervention of a public use, which will be hereinafter discussed, the defenses of laches and estoppel have also been asserted aside from that doctrine, and will be briefly discussed.
It has been said that the doctrine of laches is based on estoppel. Maguire v. Hibernia S. & L. Society, 1944, 23 Cal.2d 719, at page 736, 146 P.2d 673, 151 A.L.R. 1062. And it is also sometimes said that laches constitutes quasi-estoppel. It appears, however, from the cases that there is a distinction. The existence of either or both laches and estoppel is a question of fact.
Laches is a neglect or failure on the part of a party in the assertion of a right, continuing for an unreasonable and unexplained length of time, under circumstances permitting diligence, resulting in a disadvantage to the other party. 30 C.J.S., Equity, § 112, p. 520; 18 Cal.Jur.2d 201-202, and cases there cited.
*129 The essential elements of estoppel are false statements, or concealments, or conduct amounting thereto, with reference to a transaction, made by one who has actual or virtual knowledge of the facts to another who is ignorant of the truth, with the intention, resulting in consummation, that the other would act to his detriment on such false statements, or concealments, or equivalent conduct. 18 Cal.Jur.2d 406; City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 287 P. 475.
As said in Safway Steel Products Co. v. Lefever, 1953, 117 Cal.App.2d 489, at page 491, 256 P.2d 32, at page 33: "`In general, four things are essential to the application of the doctrine of equitable estoppel: first, the party to be estopped must be apprised of the facts; second, he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; third, the other party must be ignorant of the true state of facts; and fourth, he must rely upon the conduct to his injury.'"
It has been said that there must be some degree of turpitude in the conduct of a party before a court of equity will stop him from assertion of his titlethe effect of the estoppel being to forfeit his property and transfer its enjoyment to another. City of San Diego v. Cuyamaca Water Co., supra, 209 Cal. at page 142, 287 P. 475; Biddle Boggs v. Merced Mining Co., 14 Cal. 279, 368.
In Stevens v. Oakdale Irrigation District, 1939, 13 Cal.2d 343, 90 P.2d 58, 63, it was argued that plaintiffs were estopped against the defendants. The court said as to that: "The most that can be said on behalf of plaintiffs is that defendant, with knowledge of plaintiffs' construction of diversion works, stood silent. But in the absence of other essential elements neither expenditures by plaintiffs, defendant's knowledge thereof, nor its silence are sufficient to establish an estoppel. There is no showing whatsoever of any degree of turpitude in the conduct of defendant which would estop it from assertion of its title before a court of equity. See Biddle Boggs v. Merced Mining Co., 14 Cal. 279, 367 et seq.; Dougherty v. Creary, 30 Cal. 290, 291, 89 Am.Dec. 116; Stockman v. Riverside L. & I. Co., 64 Cal. 57, 28 P. 116; Verdugo Cañon Water Co. v. Verdugo, 152 Cal. 655, 674, 93 P. 1021; Kinney on Irrigation and Water Rights, 2d ed., vol. 2, p. 2034 et seq.; Wiel, Water Rights in the Western States, secs. 593, 594, 3d ed., vol. 1." There has been no showing of turpitude on the part of plaintiffs and their class.
Estoppel is a harsh doctrine and the law does not favor it.
Stevinson v. San Joaquin & Kings River Canal & Irrigation Co., 1912, 162 Cal. 141, 121 P. 398, was an action by a lower riparian proprietor on the San Joaquin river to enjoin the unlawful diversion of water, and the Court held that laches could not be imputed to the plaintiff so as to defeat his right to injunction merely by his failure to object to the construction of diversion works of the defendant after he acquired knowledge thereof, where there was nothing further in the evidence to show that the plaintiff had actual or imputed knowledge that the works under construction would divert water to which the plaintiff was entitled, and where plaintiff was assured while such works were being constructed that his water would not be taken.
In Empire West Side Irrigation District v. Stratford Irrigation District, 1937, 10 Cal.2d 376, 382, 74 P.2d 248, the Court refused to find an estoppel by reason of the inactivity of the defendants during the construction by plaintiffs of a siphon, reputedly to carry the water in issue, when that siphon was constructed on a right-of-way belonging to the plaintiffs, and no invasion of the rights of defendants thereby resulted; and when no cause of action arose to the defendants, and none of the water in issue was ever transported by the siphon prior to commencement of the action.
And in Logan v. Guichard, 1911, 159 Cal. 592, 114 P. 989, the Court applied *130 the same reasoning against a claimed estoppel. In that case it was held that although the party against whom the estoppel was asserted had stood by and allowed the other party, without objection, to construct a dam and flume to supply the inhabitants of a village with water, such conduct could not amount to an estoppel when the party sought to be estopped did not know and had no reason to suspect that any intended diversion by those constructing the dam would be made of any water to which he was entitled.
In Verdugo Cañon Water Co. v. Verdugo, 1908, 152 Cal. 655, 93 P. 1021, the Court held that the party estopped must always intend, or must at least be so situated that he should be held to have expected, that the other party shall act, and the other party must, by words, conduct, or silence of the first party, be induced or be led to do what he would not otherwise have done; and the mere fact that persons expended money in sinking wells upon their land with the knowledge of the plaintiff and without objection by them, created no estoppel. The mere passive acquiescence where one is under no duty to speak does not raise estoppel.
And in Miller & Lux v. Madera Canal & Irrigation Co., 1909, 155 Cal. 59, 99 P. 502, 22 L.R.A.,N.S., 391, the Court held that plaintiff in that case was not estopped by the expenditure of money by the defendant in the construction of a reservoir when plaintiff was ignorant of any intent by the construction thereof to take water to which the plaintiff was lawfully entitled.
Although the plaintiffs knew that the defendants were building Friant dam, the Madera canal and the Friant-Kern canal for the purpose of impounding and diverting water of the San Joaquin river, that fact did not and does not justify the invocation of either laches or estoppel against them, particularly in view of the repeated representations made by the defendants that the plaintiffs' water rights would be respected, and in fact, the useable quantities of water would be increased, and were in fact increased at seasons after the building of the dam and before filing suit.
By no conceivable construction of the evidence can it be said that the United States constructed the dam in reliance upon the failure of the plaintiffs to bring an action for the assertion of their rights. Nor are any of the other elements of either laches or estoppel present.
It is unnecessary to repeat here the conclusions on these points set forth in D.C., 90 F.Supp. 773, or to repeat the facts referred to in the discussion concerning prescription, and elsewhere in this discussion. It may be added that there was no actual invasion of the rights of the plaintiffs and their class until after suit was filed, and such invasion was threatened only shortly before suit was filed. The plaintiffs and their class were not called upon to anticipate that the basic Reclamation Act and Water law of the State would not be obeyed in recognition of their water rights. Moreover, the letter of the Secretary of the Interior, of March 30, 1953, assures plaintiffs their lawful rights to water under California law will be fulfilled. And it must be remembered that no objection could be made to the impounding of surplus water.
The plaintiffs and their class were not guilty of laches and were not estopped.
XIII.
(g) Public Use.
It is asserted by some of the defendants that a public use intervened against the rights of the plaintiffs and their class by the construction of the Friant project, and that they are consequently precluded from obtaining any sort of equitable relief which will give them water, but are relegated to damages, if they have any remedy at all.
The position of counsel for defendant officials on this subject is contained in the brief where it is contended that *131 "* * * the laws of California * * * preclude the entry of an injunction, where, as here, rights to the use of water have been taken for public purpose through the exercise of eminent domain." The authority cited for this proposition is Collier v. Merced Irrigation District, 1931, 213 Cal. 554, 2 P.2d 790, more fully discussed hereinafter.
The position of the State of California and the defendant districts joining in the State's brief is substantially the same.
As will be seen from the California cases and law hereinafter discussed, the defense of the intervention of a public use can only be asserted under the California law by one capable of condemning property under the power of eminent domain.
The State does not own the dam and diversion works, and is not in possession or control of the water; it cannot raise the question of public use as it is in no position to exercise the power of eminent domain against the rights of the plaintiffs. The defendant districts cannot raise the question, as they cannot exercise the power of eminent domain against the plaintiffs' rights in this case for the same reason, and for the further reason that they do not take water directly from the plaintiffs and their class, but only indirectly through the United States. A customer of a purveyor of water does not have such a direct interest as will permit the customer to raise the question of intervention of a public use. Allen v. California Water & Telephone Co., 1949, 31 Cal.2d 104, 109, 187 P.2d 393. The defendant officials could not be subjected to a judgment for inverse condemnation.[72] Hence, the only party defendant to this action which would, or may, have the power of eminent domain against the water rights of these plaintiffs,[73] and which could be obligated to pay any judgment in condemnation, and the only defendant in actual control and possession of the dam and works, is the United States, and the United States has not pleaded the intervention of a public use as to the rights of the plaintiffs and their class. On the contrary, the Secretary of the Interior, as noted, has declared that plaintiffs and their class will receive water to which they are lawfully entitled.
The case was not tried by the parties on the theory of inverse condemnation[74] but was tried by all parties as an equity suit to ascertain and declare the rights of the plaintiffs and their class to that flow of water to which they were and are lawfully entitled under California law, and to enforce the right to such flow of water by a physical solution if one is possible.
Thus, to hold that the so-called doctrine of intervention of a public use applies in this case would be to compel the United States to pay for property which it has not in fact condemned, and which it has not, by any pleading in this case, sought to condemn, and which, from the reports to CongressD.C., 90 F.Supp. 773and by the letter of the Secretary of the Interior, of March 30, 1953, is not desired to be taken at all by the United States, and would be to compel the plaintiffs to accept money where water is sought. A sale would be forced on parties, all of which are unwilling.
It has previously been determined in this case that there has never been a proper exercise of the power of eminent domain in the manner specifically required by the Federal Reclamation laws. And, insofar as the contention of the defendants that a public use has intervened may be predicated on a purported exercise of the power of eminent domain *132 as to the water rights of the plaintiffs and their class, that contention is clearly untenable.
The position taken by the Secretary of the Interior in his letter of March 30, 1953, and the defendant officials in their pleadings is that the water rights of these plaintiffs and their class will be respected and that they will be furnished all the water to which they are legally entitled under the California law. It would, therefore, seem to be the position of the Secretary of the Interior, the official ultimately charged under the Federal statutes with the administration of reclamation projects, such as the instant one, that no public use as against the rights of these plaintiffs and their class has intervened on behalf of the United States. Ordinarily that would end the matter. But in view of the contentions of the various parties in their various and conflicting briefs, and the default of the United States, an examination will be made of the question as to whether or not a public use attached to the rights of the plaintiffs and members of their class prior to the filing of the within action, so as to preclude injunctive relief, with or without a physical solution, and relegate them to damages only.
The term "public use" as commonly understood, and in its larger sense, conveys the idea that the thing or service is dedicated and is available to the public generally for their use, participation and enjoyment, or that the particular property involved has been acquired, or money expended in the acquisition of property for the common public good. In that sense, the construction of dams, canals and the like by the United States with public funds is for the common good of all the people of the United States, and in its broadest sense is for a public use.
The term "public use," however, as used in the California Constitution and laws, and as construed by the California cases with relation to water rights, has been given a much more restricted application. It is not to be confused with the term "public advantage" which means "anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, contributes to the general welfare". Gravelly Ford Canal Co. v. Pope & Talbot Land Co., 1918, 36 Cal.App. 556, 565, 178 P. 150, 153, hearing denied by Supreme Court.
In this decision the Court is bound to apply the term as applied and construed in the California law and cases.
Whether or not property has been dedicated to a public use, or a public use has intervened as against a private right, has been the subject of much litigation finding its way into the reported cases of California.
Much of the litigation involving water rights was concerned with whether or not a public use had attached under Article XIV of the California Constitution[75] and its implementing legislation such as Section 2701 of the Public Utilities Code,[76] so as to subject the purveyor *133 of water to regulation as to rates and services by what was formerly the Railroad Commission of the State of California, but what is now the Public Utilities Commission or by cities, towns, and municipalities.
Other cases involve the much narrower question as to the alleged attachment, or intervention, of a public use so as to prevent a prior vested water right from securing specific relief by way of injunction enforcing a flow of water, and instead, relegating the owner of that right to damages.
That is the narrow question here. The California cases on this question have given an even more restricted meaning to the term public use than the cases which involve the question as to whether the purveyor of water was subject to regulation as a public utility.
The California cases involving the application and interpretation of Article XIV, Sections 1 and 2, and their implementing Acts of the legislature of California, lay down certain principles for the ascertainment of whether or not there has been a dedication to, or intervention or attachment of, a public use against water rights. Insofar as applicable, these principles will be adverted to in the discussion which follows.
The reason behind the doctrine of intervention of a public use is stated in City of Pasadena v. City of Alhambra, supra, 33 Cal.2d at page 920, 207 P.2d at page 25, as follows: "This rule has its foundation chiefly in the inconvenience to the public if service is interrupted by the issuance of an injunction to restrain the use." It is stated in Burr v. Maclay Rancho Water Co., 160 Cal. 268, 280, 116 P. 715, 721 and quoted with approval in Miller & Lux, Inc., v. Enterprise Canal & Land Co., 169 Cal. 415, 426, 147 P. 567, that: "The rule concerning the establishment of public service with property of another taken without previous compensation has for its basis chiefly the inconvenience to the public if the service is interrupted by the issuance of an injunction to restrain the use." In Conaway v. Yolo Water & Power Co., 204 Cal. 125, 132, 266 P. 944, 947, 58 A.L.R. 674, it is stated that: "The theory of the rule * * * is that after property is taken for a public use by a public service corporation and has been devoted to that purpose, the public thereby and thereupon acquires rights in such public use * * *." In Miller & Lux, Inc., v. Enterprise Canal Co., supra [169 Cal. 415, 147 P. 573], it is further stated: "That where a person has suffered property belonging to him and under his control to be taken and devoted to a public use by one engaged in administering such use, and the matter has gone on so far that the beneficiaries thereof rely on its continuance and adjust their affairs accordingly, such owner having knowledge thereof and making no objection or protest, this conduct will be regarded by the courts as a dedication by such owner of the property to the particular public use, and he cannot thereafter interrupt nor prevent the same, his only remedy being to seek compensation for the property he has thus allowed to be taken * * *." See also Barton v. Riverside Water Co., 155 Cal. 509, 515, 101 P. 790, 23 L.R.A.,N.S., 331; Reed v. Oakdale Irrigation District, 1920, 46 Cal.App. 139, 142, 188 P. 832.
As previously indicated, care must be taken to avoid confusion in the term "public use." The term "use," when used with reference to an exercise of the power of eminent domain, refers to the future intended purpose or use for which private property may be taken. The purpose or use to which the property is intended to be thereafter devoted *134 must be public before the taking is authorized.
The term "use" as involved in the doctrine of intervention of a public use, refers to the actual use at and before the time suit was filed, as distinguished from a future intended use, of the property for a purpose beneficial to the public. It connotes not an intended future devotion to the public service but an actual previous devotion to the public service.
In those cases where the Court has referred to the doctrine of intervention of a public use as the basis of its decision, the facts show that public service had not only actually commenced, before the filing of the suit for injunctive relief, but had continued to the point of dependence thereon.
It follows that where a suit for injunctive relief is brought prior to the actual service to the public, the objecting private owner can prevail unless he is estopped, has waived his rights, or is guilty of laches. In other words, when the public could not have come to depend on a service which has not actually been furnished, the interests of the public in the continuance of that service which they have not yet received, cannot be jeopardized. In such case it is solely a question of the relative rights of the governmental agency or utility, and the prior vested water right, and the doctrine of the intervention of a public use has no application. In the absence of conduct amounting to estoppel or laches, the California cases hold that injunctive relief should issue as a matter of course,[77] and the governmental agency would have an option to either supply water, (which it has said it will do in this case), or condemn the private property (which it has not done in this case), and the public would have suffered no inconvenience.
The contentions of the defendants that where facilities are in the process of construction a public use intervenes as to all the water which the facilities are in good faith intended to divert, is directly contrary to the holding of the Supreme Court of California in Turner v. East Side Canal Co., 1915, 169 Cal. 652, at page 657, 147 P. 579, at page 582, where the Court said: "There is no merit in the argument that when a person appropriates water to a public use he not only begins his adverse possession of the water he actually takes and puts to such use, but that he also at once institutes an effectual adverse claim to all that he in good faith intends to take or use in the future." See also Thompson v. United States, 9 Cir., 1954, 215 F.2d 744.
Each California case read against its own facts shows that public service had not only actually commenced, but in most cases had continued for a considerable period of time prior to suit.
It is noticeable too that in those cases which discussed the possibility of the intervention of a public use before public service had actually begun, there have been facts showing estoppel or laches. It is conceivable that, in a proper case, there could be laches or an estoppel before the commencement of a public service. Miller & Lux, Inc., v. James, 1919, 180 Cal. 38, 51, 179 P. 174. To apply either of those doctrines before the actual commencement of public service on the basis that a public use had intervened, would be misleading and improper. *135 The California cases must be read carefully to avoid this mis-designation of doctrines, as they have applied the doctrine of intervention of a public use only where public service had actually commenced before suit, and the public had come to rely and depend thereon.
This was the situation in Collier v. Merced Irrigation District, supra, which will hereafter be considered in greater detail. It is sufficient at this time to point out that public service had commenced, as to a part of the flow of the stream there involved, long prior to the time suit was filed. The point in issue was whether plaintiff could enjoin diversions to public service of additional water, as to which, permits for diversion had been issued six years previously, without any objection being made by plaintiff. It was held that under the circumstances of that case, plaintiff could not obtain injunctive relief to prevent the increased diversions, but was relegated to damages instead.
In the later case of Eden Township Water District v. City of Hayward, 1933, 218 Cal. 634, 24 P.2d 492, 495, the main question involved was the measure of the prescriptive right acquired by the City of Hayward by pumping from the underground for distribution to the inhabitants of the City. The City sought to sustain the judgment of the trial court, which defined their annual prescriptive right by the maximum pumped in any one day, by invoking the doctrine of intervention of a public use. It is clear that in that case, as in the Collier case, public service had commenced at the time of suit, and the question was again the extent to which the public use attached. In disposing of the question, the Court stated: "Lastly, respondent insists that if a prescriptive right to the extent claimed cannot be sustained, nevertheless it may claim that a public use has intervened as to the amount of water fixed by the judgment, and for that reason an injunction must be denied and the individual landowners of plaintiff district relegated to a suit at law for damages suffered by this taking for public use. In this behalf we are likewise at a loss to see how respondent may claim the intervention of a public use in more water than it has actually taken and beneficially used of said waters. It is true that the capacity of its system of pumps has been enlarged at a considerable expense to carry the amount of 864,000 gallons per day, but the court expressly found that said city never intended to claim beyond 828,000 gallons per day nor any amount in excess of the reasonable requirements of said city. This amount it has had. These facts distinguish the instant case from Collier v. Merced Irrigation District, 213 Cal. 554, 2 P.2d 790." See also City of Coronado v. City of San Diego, 1941, 48 Cal. App.2d 160, 119 P.2d 359; and Turner v. East Side Canal & Irrigation Co., 1915, 169 Cal. 652, 147 P. 579.
Thus the Court in that case limited the amount to which a public use attached to that actually taken and used in the past, even though public service had long been established.
In Newport v. Temescal Water Co., 1906, 149 Cal. 531, 87 P. 372, 6 L.R.A., N.S., 1098, the defendant water company had for a period of three years been supplying the inhabitants of the town of Corona with water when suit was filed to enjoin further diversions by pumping; in Barton v. Riverside Water Co., supra, the water had been furnished to a community for domestic and municipal use outside the basin for nine years before suit for injunctive relief was commenced; in Miller & Lux, Inc., v. Enterprise Canal & Land Co., 169 Cal. 415, 147 P. 567, it was stipulated that the plaintiff Canal Company had for five years prior to the commencement of the action diverted and furnished water to thousands of acres of land owned by many persons, and to villages which had grown up along the canal. The period of furnishing of water to the public was actually much longer than five years, in some instances 25 years; in Hillside Water Co. v. City of Los Angeles, 10 Cal.2d 677, 76 P.2d 681, the defendant *136 City had for over a year prior to suit been extracting and furnishing water for domestic use of its population; in Conaway v. Yolo Water & Power Co., 204 Cal. 125, 266 P. 944, 58 A.L.R. 674, defendant Utility had for approximately five years diverted waters for distribution and sale to the public; in Reed v. Oakdale Irrigation District, 1920, 46 Cal.App. 139, 188 P. 832, service to the public had existed for about three years, and the doctrine is expressly applied on the basis of acquiescence in the inauguration of a public use carried on for some period of time. The Court states this as an element of the doctrine, 46 Cal.App. at page 142, 188 P. 832; in Holmes v. Snow Mountain Water & Power Co., 36 Cal. App. 394, 397, 172 P. 178, water and power had been furnished to thousands of people over a period of four years before suit was commenced; in Martin v. Western States Gas & Electric Co., 8 Cal.App.2d 226, 228, 47 P.2d 522, suit was commenced on November 8, 1928, to enjoin an enlarged diversion consummated January 27, 1924, by the diversion in canals of 85 second-feet greater than had previously been diverted. Thus the water had been devoted to public service for nearly five years when suit was commenced; in Peckwith v. Lavezzola, 50 Cal.App.2d 211, 122 P.2d 678, the devotion of water to public service had existed for eight years at the time suit was commenced; in Katz v. Walkinshaw, supra, 141 Cal. on page 138, 70 P. at page 664, it is stated: "that defendant is diverting the water for sale". Though neither the facts nor the law concerning public use were fully developed in that case, it is clearly indicated that the Court was dealing with a public service existing prior to suit; in Peabody v. City of Vallejo, supra, water had been distributed to inhabitants of the city for some five months at the time suit was commenced(the court nevertheless required a physical solution); In Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, supra, 3 Cal.2d at page 533, 45 P.2d 972, water had been pumped from the land in question and had been supplied to those within an irrigation district for over two years but the court held no public use had intervened as to others; in Lamb v. California Water & Telephone Co., 21 Cal. 2d 33, 41, 129 P.2d 371, where the defendant had contracted in 1888 to perpetually furnish water at a fixed rate to a lower riparian owner, and the question of the validity of that contract turned on whether the defendant was a public utility, the Court held that a finding that defendant had begun actual service prior to the contract was not contrary to the evidence, and in fact, the contract itself disclosed that use of the water by the water company preceded the contract since it recognized that the water of the riparian owner had "already" been diverted by the company.
Aside from the public policy theory for denying injunctive relief where a public use has in fact attached, if the facts show an implied dedication to the public use by laches or an estoppel against the prior owner, it can be held on that basis that the prior owner's right to prohibitory relief is cut off. In such case the Court is really applying the equitable doctrine of implied dedication by estoppel, though it may be doing so in a situation where a public use has in fact attached.
Where the facts do not show an implied dedication by estoppel, the Court is required to determine whether the public policy against inconvenient interruption of a water service on which the public has come to depend before suit, is offended. The doctrine of intervention of a public use is applicable only if one of the two theories, public policy or implied dedication, is satisfied by the facts of the particular case.
The cases do not present the doctrine of intervention of a public use as an absolute bar to injunctive relief, but rather indicate that prohibitory injunctive relief should be granted only if it appears that no other relief is adequate. Thus it is at most indicated that a Court should be reluctant to grant a *137 prohibitory injunction where a public use has in fact intervened prior to suit.
The Court may, if justice requires, refuse injunctive relief to the private owner, and relegate him to damages if a physical solution is not possible to preserve the rights of the parties. It is clear that the Court is not bound to do so, but that the matter is one depending on the particular facts.
If a physical solution can be worked out which will supply the reasonable and beneficial needs of the prior right, and permit the reasonable and beneficial uses of water in excess of those needs by an appropriator for a public use, it is possible that there may be no damage to the prior right.
The facts in this case disclose that suit was filed in 1947, prior to the time any substantial diversions had been made for use by the defendant Irrigation Districts. In fact, all of the contracts, except one, for the supplying of water to those districts, were made from two to four years after the suit was filed. And the factual reports or letters of justification indicating feasibility of the contracts were all made long after this suit was filed in 1947.[78] This indicates that there was no existing water service on which the public, assuming the contracting districts can be so characterized,[79] had come to depend. Hence, no public use had attached against the rights of plaintiffs and their class. This being so, it would appear that the right of plaintiffs to injunctive relief depends on whether, aside from the doctrine of intervention of a public use, they are estopped or have been guilty of laches on the facts. And they have not as hereinbefore indicated. However, some of the cases purporting to apply the doctrine of intervention of public use on the theory of implied dedication by estoppel will be examined to show that the doctrine as there applied is inapplicable on the facts of this case.
Considering the question of implied dedication by estoppel, it must be kept in mind that since 1928 a lower *138 riparian or overlying owner has no right to object to any upstream appropriation of surplus watersa right which he did possess prior to 1928. It follows as a matter of course that since 1928, the failure to object to the construction of works for an upstream appropriation cannot be construed as either active or passive acquiescence in the taking of water needed by the plaintiffs and their class, as owners of downstream vested rights. This absence of any right to object to the upstream appropriation of water not needed by plaintiffs and their class, i. e., surplus waters, and the consequent absence of a right to sue to abate or prevent such diversions, under the case of Miller & Lux, Inc., v. Enterprise Canal Co., supra, indicates that a public use could not intervene until non-surplus water is taken. It is stated in that case, after a detailed discussion of public use cases, that [169 Cal. 415, 147 P. 573]: "It is to be observed that in all of the above cases the public use involved an interference with the property rights of a private owner sufficient to give such owner an immediate right of action to abate or prevent the same. * * * This right in the owner to enjoin the public use before it had become established appears to have constituted an important factor in the statement of the doctrine in all of the above cases." See also Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, supra, where it was held that the doctrine did not apply to those riparian owners who filed suit in 1916 before their rights were affected by appropriations in 1918, but that it did apply as to those who did not become parties until 1920, two years after appropriations to the public service; and see Miller & Lux, Inc., v. Worswick, supra.
Under the Constitutional amendment of 1928 the riparian right is protected only to the extent that water is needed for the beneficial uses, present and prospective, of the riparian lands, and there is no right to object to the upstream appropriation of water not presently needed, i. e., surplus. If an upstream appropriation and diversion of only surplus waters could result in the intervention of a public use as to all the waters of a stream, including water needed by the lower riparian lands, all protection would be taken from the riparian right. It would no longer be an enforceable right. If the appropriation and use of surplus would automatically bring into play the doctrine of intervention of a public use of the entire stream flow, the riparian owner could never object. He would be precluded from objecting to the initial taking by the prevailing rules as to surplus water and he would be precluded by the doctrine of intervention of a public use from obtaining relief, other than damages, when the amount of water actually taken invaded his present needs for reasonable beneficial uses. It is not conceivable that the 1928 amendment was intended to, in this manner, destroy the riparian right. Nor is it conceivable that all need for condemnation proceedings was to be eliminated. Yet these are the results which must follow if the doctrine can apply where there is a taking of only surplus water prior to suit. The Gin S. Chow case, supra, has held that the 1928 amendment was not an exercise of the power of eminent domain, and to apply the doctrine of intervention of a public use as to all the waters of a stream where the taking prior to suit was of only surplus waters would be contrary to this declaration by the Supreme Court of California. The real impact of such a holding would be deferred until a period of drought or relative water shortage. At that time the downstream owner of a vested right would suddenly find himself absolutely without water and with no means of obtaining any. It is conceivable that he might even face the bar of the statute of limitations as to his claim for damages. Furthermore, if the downstream area to be supplied was large, as here, and the upstream appropriator was a utility with limited resources, it could mean ruin for the utility faced with tremendous damage claims.
*139 It is concluded, from all the declarations in the California cases as to the nature of the riparian right preserved by the 1928 Constitutional amendment, that a taking of only surplus waters does not bring into play the doctrine of intervention of a public use as to a prior vested water right. The Court does not indicate or intend to indicate any right to take surplus waters by defendants, or that any surplus was lawfully taken.
It is to be observed that if a public use attached at Friant as to the waters of the San Joaquin river, it also attached by the building of Shasta dam and Keswick dam on the Sacramento river, Pine Flat dam on the Kings river, and Isabella dam on the Kern river. It is hardly conceivable that thus all water rights on the Sacramento, Kings, and Kern rivers have been relegated to damages and must take such water as the government official in control of such dams and works determines in his sole judgment what each prior water right on those rivers may need or have. Or, stated another way, if the doctrine of the intervention of a public use were applied, the government would be subjected to suits to the extent of the value of all the water rights in the entire Central Valley, which would run into colossal and prodigious sums of money; a situation clearly not contemplated by any Act of Congress or California law; and just as clearly not contemplated by the Secretary of the Interior who asserts the recognition of the water rights of plaintiffs and their class, and is pursuing applications under the California Water Code to appropriate only surplus water in excess of those rights.
The case of Collier v. Merced Irrigation District, supra, has already been adverted to and its inapplicability to the present case pointed out in one respect, but in view of the fact that there are several reasons why the Collier case is inapplicable in the instant matter, and in view of the reliance placed by the parties upon that case, it is well to set forth the facts and discuss the case further.
In the Collier case the predecessor of the defendant district filed applications with the State of California in 1919 for permits to construct a dam on the Merced river for the dual purpose of impounding water for power and diverting it for irrigation to non-riparian lands. The permits were granted in 1922. The plaintiff was a downstream riparian owner of 527.86 acres of land, and the defendant was a public corporation irrigation district owning or serving approximately 189,000 acres of land. The plaintiff had used the full flow of the Merced river as a riparian except for a prior preferential right in the defendant district to divert 1,600 cubic feet per second for use on non-riparian lands of the district. Under the terms of the permits the amount to be diverted by the defendant district for non-riparian uses was increased from 1,600 cubic feet per second to 2,125 cubic feet per second. After the granting of the permit, construction work was commenced, and the dam was completed prior to April 1, 1926. The storage of water immediately commenced, but not to the full capacity of the reservoir in 1926. In 1927 the storage slightly exceeded the full capacity of the reservoir. In 1928 the district was continuing to impound the water until suit was filed on March 7, 1928, six years after granting the permit, to enjoin any diversions in excess of that previously appropriated. It was conceded by the plaintiff that a public use had attached to the amount of water which had in fact been taken from the reservoir in the past year, but it was contended that a public use had not attached to the full amount of water covered by the permits, the permits allowing the impounding and diversion of 850,000 acre-feet, whereas approximately only 300,000 acre-feet had been impounded in the previous year. The Court disposed of this contention by stating [213 Cal. 554, 2 P.2d 793]: "As above pointed out, with full actual knowledge for a period of five years or more of the specific intention of respondent, as disclosed *140 by the several state and national permits, and with knowledge of the effect the works might have upon the stream and consequently upon his riparian right, appellant permitted an outlay, at great cost, for the construction of this dam, power house and diversion works, without protest, and it is not unreasonable to hold that respondent thereby put itself in charge of a public use, as to all that portion of the stream covered by its expressed and known intention within the capacity of the reservoir. The closing of the stream by the dam under these circumstances should allow the use of the reservoir to its capacity during any one season up to the limit of respondent's permits. It utilized during the years 1926-1928 practically the whole yield of the stream, and it is but a fair construction of the effect of its action to say that it secured the right to take all the yield up to its claim of 850,000 acre-feet, and that appellant, by his inaction, waived his right to equitable relief."
From the foregoing statements of the court it is apparent beyond dispute that the actual basis of the decision was estoppel or waiver, doctrines which can operate independently of the intervention of a public use as well as simultaneously therewith. Furthermore, the Court found laches disclosed on the face of the complaint and sustained by the evidence. 213 Cal. at page 564, 2 P.2d 790.
The Court in the Collier case placed great emphasis on the fact that permits had been granted, both State and Federal, designating the total amount of water which the permittee was entitled to divert, without any protest or objection being made by the plaintiff. The plaintiff was entitled under the Statutes to notice and right to object at the hearings on the applications. And the Court held that plaintiff, by such permits, had full and accurate knowledge of the ultimate extent of diversions to be made, and could not, after over five years of silence from the date of the granting of such permits, object to the consummation of the additional diversions.
Similar circumstances are singularly absent here.
In this case eleven applications which had been filed between 1916 and 1938, were assigned to the United States in 1939. Not only were no permits ever granted, but none of them were brought on for hearing before this suit was filed in 1947. In fact, none of them were noticed for hearing until the day the evidence closed in this caseDecember 31, 1954seven years after this suit was filed, 15 years after the applications were assigned to the United States, and from 16 to 38 years after the applications were filed. The United States proceeded to the erection and construction of the dam without any permit or license from the State, and during the intervening eight years from the time the applications were assigned to the United States to the time suit was commenced in 1947, the plaintiffs and their class were continually and repeatedly assured that they would receive water in accordance with their lawful rights under California law. D.C., 90 F.Supp. 797. Had the United States, after the assignment to it of the applications, proceeded to hearing and secured permits before the filing of this suit, defining and stating the amount of water which it would be entitled to divert, then there might be a partial parallel to the Collier case.
With the constant and repeated assurances given to the plaintiffs and their class in the instant case that they would receive water and in fact the amount available would be increased, and the fact that the flow was increased in seasons, the plaintiffs would not have been justified in filing suit prior to the letter from Boke dated July 15, 1947 (Pltfs. Ex. 162). They then proceeded, as promptly as was physically possible thereafter, to prepare and file this suit which was done on September 25, 1947. In view of these facts, the plaintiffs and their class exercised the diligence which is required to prevent the intervention of a public use as to their rights to water. Conaway v. Yolo Water & Power *141 Co., etc., 1928, 204 Cal. 125, at page 131, 266 P. 944, 58 A.L.R. 674.
Furthermore, in the Collier case, it is significant that of the total flow of 2,125 cubic feet per second allowed by the permit 1,600 cubic feet per second had been utilized and diverted for many years prior thereto, and devoted to a public use. During the two years previous to the filing of the suit practically the whole flow of the stream had been impounded and diverted by filling and refilling the reservoir.
No such similar situation is present here. In the instant case diversion of water commenced into the Madera canal in 1944three years before the commencement of this suit. Such diversions did not in fact impinge upon the water received by the plaintiffs because, as elsewhere herein noted, the flow of the stream was increased during certain periods of the year to a greater amount than had flowed during the same periods in previous years of comparable total flow. And no diversions were made to the Friant-Kern canal until 1949two years after this suit was commenced, and none of the contracts for diversion of water by way of the Friant-Kern canal were made until 1951four years after this suit was commenced, except the contract with the South San Joaquin Municipal Utility District. The total diversions into the Madera canal prior to the filing of this suit, between the years 1944 and 1947, inclusive, was 458,146 acre-feet against the total flow of the river for those years of 6,709,000 acre-feet, or an average of 114,536 acre-feet per year, as against the average flow of the river for those years of 1,519,750 acre-feet.
It is clear that the diversions into the Madera canal prior to this suit were not in satisfaction of the right of any district to receive water under a contract with the United States to deliver water. The first diversion through the Madera canal in satisfaction of any of the contracts to supply water did (Footnote 78, 142 F.Supp. 137) not occur until 1951four years after suit was filed. Thus there could not possibly have been any reliance on the slight diversions.
And even if the diversions into Madera canal prior to the filing of this suit should suffice as a furnishing of water to the point of reliance, a conclusion untenable under the evidence, a public use under the cases hereinbefore discussed could attach to no more than the amount actually furnished and beneficially used, an amount which did not impair the vested rights of plaintiffs. Eden Township Water District v. City of Hayward, supra.
Furthermore, in the Collier case, by stipulation of the defendant, there was incorporated into the judgment a requirement that there be available to the plaintiff and his land during the irrigation season, such amount of water as was reasonably required by the plaintiff by reasonable methods of diversion, to the extent and quantity of 18 cubic feet per second, which was not to be diminished by any prior riparian users, and which the Court found was sufficient to meet the needs of plaintiff's 527.86 acres of land for water at all times. He in effect had a physical solution, and was held to be also entitled to damages. Thus, even though it was there held that a public use had intervened on the basis of an estoppel, the doctrine was invoked only as to water above that needed by plaintiff, which, under the law as it now exists would be surplus waters. Furthermore, the dam in the Collier case was completed in 1926two years before the Constitutional amendment of 1928and the plaintiff was then entitled to bring suit to compel the whole flow of the river, surplus and nonsurplus. That right to compel the flow of surplus water was taken away by the 1928 amendment, as hereinbefore shown. Hence, the same case could not arise since 1928 because of the absence of any right to object to the appropriation of surplus watersa right that existed in 1926 when the dam in the Collier case was built.
Another thing should be mentioned, which distinguishes the Collier case from *142 this case. In that case the defendant irrigation district, under Art. XIV, Sec. 1, of the Cal. Court; was, `subject to the regulation and control of the State in the manner to be prescribed by law', which could include regulations as to rates and services. Whether that is true in the instant case is not decided, but in any event, the United States has not submitted to regulation as to rates and service by the State of California.
Still another material factual difference is found in the fact that in the Collier case it was the defendant Irrigation District which constructed the dam and was the direct supplier of water to the individual members of the public. Under the cases all water actually appropriated by such corporate defendant was devoted to the public use in the sense that it was supplied by the appropriator to all within the District as a matter of right, and not merely on the basis of private contracts made selectively and at the will of the supplier. The government is in an entirely different position. It has entered into private contracts to furnish water to corporate districts, and has not undertaken a duty to supply the public generally with water.
By the California cases when a use is a public use, then every member of the public in the service area similarly situated may enforce by mandamus or other proceedings his right to water service, Fellows v. City of Los Angeles, 1907, 151 Cal. 52, 90 P. 137, or may compel the delivery to him of his proportionate share of the water. Butte County Water Users' Ass'n v. Railroad Commission, etc., 1921, 185 Cal. 218, 196 P. 265; California Public Utilities Code, Section 2711.
The "potential service area" shown in Maps XXX-XXX-XX accompanying the amended applications of the United States to appropriate water at Friant Exhibit A-46-Acovers 4,986,000 acres of land which includes all of the counties of Madera, Fresno, Tulare, Kern, and parts of other counties, or "any 900,000 acres during a single year."
Considering next the public policy basis for the doctrine, the Court in the Hillside case, supra, did not rest its conclusions that a public use had attached, on implied dedication by estoppel, but on weighing the equities from the facts in that case, applied the doctrine of public use because to do otherwise would interrupt a service of water to the public which had come to rely thereon before the filing of the suit. The facts there were that the owners of 640 acres of land having "an abundant and perpetual supply of water for surface irrigation" were not entitled to have their underground waters maintained by injunction against the City of Los Angeles which owned 90,000 acres overlying the same underground pool from which it pumped water into its aqueduct for use by the population of Los Angeles. No such facts are present herethe plaintiffs and their class have no other source from which they can secure the water which is taken from them by impoundment and diversion at Friant. Some members of plaintiffs' class can secure water from the Fresno Irrigation District as surface water for irrigation, but the evidence shows that such water does not percolate sufficiently to supply the water to deep wells which secure their water from the aquifers of the San Joaquin river. Moreover, within the area of the San Joaquin cone, are the rights of the City of Fresno and numerous Public Water Districts furnishing water by deep wells from the underground for municipal uses, just as much as the municipal uses of the City of Los Angeleswhich uses are by the Water Code, Section 106, declared to be the highest and best uses[80] and are public uses. In the Hillside case it was not necessary to make a physical solution as to the 640 acres because the plaintiffs had an abundant and perpetual *143 surface supply. But that case supports the conclusion that where it is necessary to supply water to those having prior right, and a physical solution can be had, that remedy should be applied instead of relegating them to damages. This is evident from the requirement therein that a physical solution was feasible and should be made as to remaining respondents in that case other than the overlying owners of the 640 acres.
In Peabody v. City of Vallejo, supra, a suit by riparian owners to enjoin upstream appropriations and diversions by the City, the Court points out, 2 Cal.2d at page 378, 40 P.2d 486, that the doctrine of intervention of a public use has sometimes been said by the court to be based on waiver and estoppel, and at other times it has been said to be based on public policy. It then declares, 2 Cal. 2d at page 379, 40 P.2d at page 497, that: "There is little doubt that the application of the doctrine may be invoked on either ground when public use has attached prior to the commencement of the action and depending on the circumstances of the case." The dam from which the water supply of the defendant City was received was completed in December, 1925ten months before suit was filed on October 13, 1926. The answer of the City alleged that water impounded prior to May 1, 1926, was then being distributed for public purposes to the inhabitants of the City. The court found as a fact that a public use had intervened more than five months prior to the commencement of the suit, and held as a matter of law that the allegation in the city's answer of distribution of water to its inhabitants and the necessity for continuance of such distribution, was sufficient to raise the issue of public use.
It would thus appear from the Peabody case that the underlying reason for the doctrine, avoidance of inconvenient interruption of a public service, was present prior to suit, as were facts showing estoppel and waiver. The Court does not declare on which basis it rested its decision. In any event, after holding that a public use had intervened, it concluded, 2 Cal.2d at page 383, 40 P.2d 486, that the Court below should make a physical solution, if possible, and that plaintiffs were then entitled to damages for injury, if any, remaining after a physical solution.
The inapplicability of the doctrine on the facts in this case is further demonstrated by the latest expression thereon by the Supreme Court of California in the case of City of Pasadena v. City of Alhambra, supra.
In that case the Court refused to invoke the doctrine in favor of either the City of Pasadena or the City of Alhambra against the private user, California-Michigan Water Company, and stated as follows, 33 Cal.2d at page 920, 207 P.2d at page 25: "Appellant further contends that it cannot be enjoined since the water which it produces is devoted to a public use. Reliance is placed upon cases holding that when a public use has attached, inverse condemnation proceedings may be invoked and compensation in lieu of a prohibitory injunction is preferred in most circumstances. See Hillside Water Co. v. City of Los Angeles, 10 Cal.2d 677, 688, 76 P.2d 681; Peabody v. City of Vallejo, 2 Cal.2d 351, 377-380, 40 P.2d 486; Newport v. Temescal Water Co., 149 Cal. 531, 538, 87 P. 372, 6 L.R.A.,N.S., 1098. This rule has its foundation chiefly in the inconvenience to the public if service is interrupted by the issuance of an injunction to restrain the use, Miller & Lux, Inc., v. San Joaquin Light & Power Co., 8 Cal.2d 427, 436, 65 P.2d 1289; Burr v. Maclay Rancho Water Co., 160 Cal. 268, 280, 116 P. 715, and has no application to the problem which confronts us here. The purpose of this litigation is the protection of the interests of both public and private users by preventing further depletion of the water supply. Excepting appellant, all parties, public as well as private, have consented to be enjoined to effect this purpose. There is nothing in the record to indicate that the public interest would be better served by depriving private users of their pumping *144 rights and compensating them therefor. If this were done they would have to purchase their water from municipalities or public utilities which take water from the same underground area, and the total supply available to the public would not be increased. Moreover, it would be exceedingly difficult to fix the monetary loss of each private party and then apportion it among the numerous public users. In these circumstances, the trial court was justified in concluding that the rule against enjoining public utilities was not applicable." City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 920-921, 207 P.2d 17, 25.
When the Court weighs the hardships and conveniences, it finds that here all of the contracts with the irrigation districts, except one, were made long after this suit was started. Thus there was no substantial existing public service which could be interrupted by any injunction. Also, the protection of the rights of the plaintiffs and their class by a conditional injunction by way of a physical solution, in that flow of water needed for their vested rights, will not interrupt the flow of water to the contracting Irrigation Districts, and will not diminish them in any substantial degree. There would not result that inconvenience to the public which would be encountered if an attempt were being made to prohibit entirely the diversion of waters at Friant.
There is nothing in the record here to indicate that the public interest would be better served by depriving plaintiffs of their water, and compensating them therefor, and requiring them in turn to purchase that water from the facility serving the area in which their lands are located. As in the Pasadena case, it would be exceedingly difficult, if not impossible, to fix the monetary loss of each plaintiff, or each member of the class who, in such event, would have to bring an individual suit.
Furthermore, the class acreage here affected by the diversions, including those taking directly from the river as well as from wells, includes cities, towns, villages, and seven domestic water districts within the class area furnishing water for what the California Water Code declares, Section 106, to be the highest and best use. There is not such disparity of acreage or populace to be served as was present in the Hillside case, supra, or the Collier case, supra, and there is no substitute water supply at hand for what is proposed to be taken. It is clear that hardships and inconveniences would result to the inhabitants of this vast area, whether depending on water directly from the river or on wells replenished in whole or in part by the San Joaquin river, if their water supply should be cut off and diverted to others who, only since this suit was commenced, have received any substantial amounts of water from the project works, and who had not, at the time suit was filed, and have not since, developed the same dependence on that supply as have the class plaintiffs through several prior decades of use. It is also clear that such hardships and inconveniences would far outweigh any hardships or inconveniences which might be suffered by the United States or any defendant district, all of which in fact receive water which is only supplemental to that which they already had and still have.
The public policy foundation for an application of the doctrine in such a manner as to relegate plaintiffs to damage is wholly absent.
Though it has been determined that the facts of this case show neither waiver, nor laches, nor an implied dedication by estoppel, and that the public policy basis for the doctrine of intervention of a public use is wholly absent and that plaintiffs and their class are thus not relegated to damages, there are still other principles militating against the applicability of the doctrine of the intervention of a public use in this case against the rights of the plaintiffs and their class.
The cases of Thayer v. California Development Co., post, Leavitt v. Lassen Irrigation Co., post, and Allen v. Railroad Commission, etc., post, deal with *145 the question of when there is dedication to the public use by a supplier of water, and further illustrate the inapplicability of the doctrine of the intervention of a public use against the rights of plaintiffs and their class.
In Thayer v. California Development Co., 1912, 164 Cal. 117, 128 P. 21, the plaintiff, a private landowner, brought a mandamus proceeding to compel the defendant, the California Development Company, to deliver water to her land for farming, at the same rate charged by the Company, under separate contracts to other farmers in the vicinity of her land. It was contended that the Company by its acts had dedicated its property to a public use, and that defendant being within the area of the lands to be served by the Company was entitled to the water on the same basis as others. The Court held there that the act of acquisition (appropriation) of water, and dedication, are distinct from each other, 164 Cal. at page 126, 128 P. at page 21, and appropriation of water is not ipso facto a dedication or an appropriation to a public use; that the additional act of dedication is as necessary to the creation of a public use in a water right as it would be if the right were acquired by conveyance; the test of dedication of public uses in that case was whether or not some acts or declarations of the Development Company indicated their intention to dedicate or devote it to a public use. The Court held there had not been any such dedication because the Development Company had at all times retained the right to say who should have the water, "upon what terms, selling to one and refusing to sell to another at will".[81] 164 Cal. at page 128, 128 P. at page 25. And again, 164 Cal. at page 132, 128 P. at page 27 the Court stated: "It appears, therefore, that the Development Company has always, either directly or through the auxiliary companies, selected the persons to whom it would sell and distribute the water and fixed its own prices." The Court further held that by such method of picking customers and fixing prices by contract, the Development Company was not subject to the provisions of Article XIV, Sections 1 and 2, of the California Constitution, declaring that the use of all water for sale or distribution is a public use and subject to regulation in the manner to be prescribed by law, which "was intended to regulate the use of water appropriated and dedicated generally for sale and distribution among an indefinite number of users." 164 Cal. at page 134, 128 P. at page 28.
In Leavitt v. Lassen Irrigation Co., 1909, 157 Cal. 82, 106 P. 404, 29 L.R.A., N.S., 213, the court held that the appropriator had in fact made a dedication to a public use in that he had offered to distribute water to such members of the public as would apply therefor and pay the legal charge for the service, and having done so as to all of the water, he could not thereafter divert a portion thereof to a private diverter, and thus destroy the public use or "public trust" as the Court stated. Further, 157 Cal. at page 89, 106 P. at page 407: "The fundamental and all-important proposition then is this: That a public service water company which is appropriating water under the Constitution of 1879, for purposes of rental, distribution, and sale, cannot confer upon a consumer any preferential right to the use of any part of its water. * * * He was but the purveyor of this public use, the agent in the execution of this public trust." 157 Cal. at page 89, 106 P. at page 407.
In Allen v. Railroad Commission, etc., 1918, 179 Cal. 68, 175 P. 466, 8 A.L.R. 249, certiorari denied 249 U.S. 601, 39 S.Ct. 259, 63 L.Ed. 797, the Water Company deeming itself a public utility under the Act of 1913, California Public Utilities Code, Sections 2701 et seq., applied to the Railroad Commission for an order fixing rates to be charged for the distribution of water. The users holding private contracts with the Company objected. The Railroad Commission held *146 for the Water Company, but the Supreme Court, on review, annulled the order of the Railroad Commission. The Court again affirmed the fact that the act of appropriation and dedication as announced in the Thayer case, supra, are distinct from each other. It held that Article XIV of the Constitution, 179 Cal. at page 84, 175 P. at page 472: "Must be understood to apply to cases where one has appropriated water generally, for sale, rental, or distribution, and not to cases where sales are made to particular persons at a fixed price by ordinary contracts of purchase and sale." And 179 Cal. at page 85, 175 P. at page 473: "`To hold that property has been dedicated to a public use is "not a trivial thing" [citing cases] and such dedication is never presumed "without evidence of unequivocal intention." (Niles v. City of Los Angeles, 125 Cal. 572, 58 P. 190).'" It further affirmed the doctrine in the Thayer case, 179 Cal. at page 87, 175 P. at page 473: "That the sale in gross by a Water Company of water to a mutual Water Company was not a dedication of such waters to public use."; and of Marin Water & Power Co. v. Town of Sausalito, 168 Cal. 587, 143 P. 767: "That a sale and delivery of water by a water company to a municipality owning its own water system, to be sold by the municipality to its inhabitants, was not a dedication of such water so sold in gross to a public use so that the gross rates were subject to municipal regulation." 179 Cal. at page 88, 175 P. at page 474: "Public use, then, means the use by the public and by every individual member of it, as a legal right", and further, 179 Cal. at page 89, 175 P. at page 474: "It is not the use which the consumer makes of the commodity which constitutes the test * * *. `"It is the duty which the purveyor or producer has undertaken to perform on behalf of and so owes to the public generally, or to any defined portion of it, as the purveyor of a commodity or as an agency in the performance of a service, which stamps the purveyor or the agency as being a public service utility."'" The Court held that by virtue of the private contracts there had been no dedication to a public use.
While the Court does not base its decision on this ground, when the principles set forth in the above cases are applied to the facts in this case, it is difficult to see how the doctrine of the intervention of a public use can be urged so as to preclude the plaintiffs and their class from securing water. The United States is making contracts with whom it chooses for service of water at prices it fixes; the sales, or services, are for water "in gross" to the districts which in turn service it to their members or customers, as was done by the mutual Water Company in the Thayer case, supra, and by the municipality in the Marin case, supra. Neither the government nor the State, nor any of the districts for that matter, have regarded the sales of service made by the contracts to be subject to regulation as to rates and service by the California Public Utilities Commission as required by the California Constitution, Article XIV, and law, where a public use is claimed.[82]
*147 Further doubt as to the availability of the doctrine of intervention of a public use in this case, even if there had been a well-established water service on which the public had come to depend, is created by statements in the Meridian case: "It was undoubtedly the purpose of the proponents of the amendment of 1928 to make it possible to marshal the water resources of the state and make them available for the constantly increasing needs of all of its people. In according to that great purpose its proper significance it is necessary and appropriate to declare, as inherent in the plan, that the storage of water for the purposes of flood control, equalization and stabilization of the flow and future use, is included within the beneficial uses to which the waters of the rivers and streams of the state may be put within the intent of the constitutional amendment. But such right of storage must necessarily be subordinate to all beneficial uses on the stream made in the exercise of riparian and prior appropriative rights. And the right of storage may be exercised only pursuant to appropriations lawfully made." Meridian, Ltd. v. City and County of San Francisco, 13 Cal.2d 424, at pages 449-450, 90 P.2d 537, at page 549, 91 P.2d 105.
These statements, when considered with the fact that the impounding and diversion of water by the government were not preceded by the obtaining of permits in compliance with the statutory procedure, indicate that storage without such compliance is unauthorized.[83] In each of the California water rights cases in which the doctrine of the intervention of a public use has been allowed to prevail as to stream appropriations, the appropriations were lawfully made, i. e., under permits properly obtained prior to diversion and suit.
As stated in Meridian, Ltd. v. City and County of San Francisco, supra, the right of storage can be exercised only as to appropriations lawfully made, and *148 thus it would be in complete disregard of the Water Code and the Meridian case to hold that public use can intervene when the appropriations are made without even colorable compliance with the procedure prescribed as prerequisite to the exercise of any right of storage. A storage without right could not equitably be held to destroy prior vested rights especially where, as here, they were never actually encroached upon until after filing of suit to prevent the encroachment.[84]
As heretofore noted, the requirements of the 1928 Constitutional amendment as to reasonable and beneficial use apply to every use including public use, and guarantee the reasonable and beneficial uses of prior vested rights. In recognition of the paramount importance to the use of water, the Courts of California have worked out as an equitable doctrine the only means whereby there can be a reconciliation of prior rights to the use of water which may come into conflict with a later public use so as to give each the water needed for their present beneficial uses. That means is called a "physical solution" which it is the duty of the Court to impose, if one is possible, which will give full effect to the 1928 amendment by providing water for the prior right for its present reasonable and beneficial uses and will at the same time permit water which is surplus to, or in excess of, such present right to be devoted to reasonable and beneficial uses. As stated in Peabody v. City of Vallejo, 2 Cal.2d 351, at *149 page 383, 40 P.2d 486, at page 499: "That if a physical solution be ascertainable, the court has the power to make and should make reasonable regulations for the use of the water by the respective parties, provided they be adequate to protect the one having the paramount right in the substantial enjoyment thereof and to prevent its ultimate destruction, and in this connection the court has the power to and should reserve unto itself the right to change and modify its orders and decree as occasion may demand, either on its own motion or on motion of any party."
The Court concludes that a public use has not intervened against the rights of plaintiffs and their class so as to relegate them to damages. And as will shortly appear, a physical solution is possible which will protect them in their rights, and still give full effect to the Constitutional requirement of the fullest use of all water at all times for reasonable and beneficial purposes.
XIV.
Watershed and County of Origin Statutes.
Whatever other principles exist which protect the plaintiffs and their class in their rights to water, it is urged by their counsel that the so-called County and Watershed of Origin Statutes of California protect and preserve their vested right to water presently and prospectively needed for their reasonable and beneficial uses against any taking of water out of the Counties of Fresno and Madera by the defendants under any claim or color of right whatsoever.
The so-called Watershed of Origin Statute first appeared as a matter of legislation by the adoption of the 1933 Central Valley Project Act, Cal.Stat. 1933, Chap. 1042, Section 11, page 2650. The material portions of that section are now codified in the 1943 California Water Code, and are Sections 11460 and 11463. They protect (1) "a watershed or area wherein water originates," and (2) "an area immediately adjacent thereto which can conveniently be supplied with water", in the prior right of such areas, "to all of the water reasonably required to adequately supply the beneficial needs of the watershed, area, or any of the inhabitants or property owners therein."[85] Section 10505,[86] known as the "County of Origin" Statute, was added by Chapter 537 of the California Statutes of 1933, as an additional clause to the re-enactment that year of the Statute first enacted in 1927, Cal.Stats. 1927, Ch. 286, which permitted the Department of Finance of the State of California to file applications for unappropriated water.
Prior to the 1928 Constitutional amendment, riparian lands within the watershed were protected against any diversion for non-riparian uses, and *150 their owners could compel the full flow of the river. To a great extent all persons and lands within the watershed were incidentally protected by this rule. By the 1928 Constitutional amendment, the surplus or excess over that needed for the reasonable beneficial uses of the riparian and overlying owners within the watershed was released for appropriation and diversion.
Sections 11460, 11463 and 10505 are in keeping with the provisions and the policy of the 1928 amendment which permits and requires reasonable and beneficial use, and which also protects the vested water rights of the riparian and overlying owners for present and prospective beneficial uses to which the lands are or may be adaptable;[87] and they extend by statute the protection given to riparian and overlying owners by the 1928 amendment to all the inhabitants and property owners of the County in water which may be necessary for the development of the County, and which protection they only incidentally and indirectly received prior to 1928.
While these statutes were the first expression of public policy by the legislature on the subject, the doctrine of protection of the watershed of origin has been consistently applied by the California Courts in the protection of riparian and overlying rights in recognition of the facts that the natural advantages of a surface or underground water supply was the principal reason for the settlement and development of the counties and watersheds where water originates. Bathgate v. Irvine, 1899, 126 Cal. 135, 143, 58 P. 442; Burr v. Maclay Rancho Water Co., 1908, 154 Cal. 428, 436, 98 P. 260; quoted with approval Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, 370, 371, 40 P.2d 486; Miller v. Bay Cities Water Co., 1910, 157 Cal. 256, 279, 107 P. 115, 27 L.R.A.,N.S., 772; Moreno Mutual Irrigation Co. v. Beaumont, etc., 1949, 94 Cal.App.2d 766, 779, 211 P.2d 928.
None of these sections have received judicial construction by the Appellate Courts of California or, so far as known, by any Superior Court of California.
The Attorney General of California, however, has construed them. In Opinion 53/298 filed January 6, 1955 [25 Ops.Cal.Atty.Gen. 8], the Attorney General handed down an opinion which held, among other things, that the provisions of Sections 11460 and 11463 are imposed upon any agency of the State of California or the United States by virtue of the Statute, regardless of their inclusion or omission in any permit issued by the State Engineer of California.
In that conclusion, the Court agrees.
From a literal reading of the Sections, they would appear to apply only to the Water Project Authority of California which did not build and does not operate Friant Project. The United States did build it and does operate it, but it does so under the Federal Reclamation laws making the State law applicable. As the Attorney General points out in his Opinion, Sections 11460 and 11463 of the Water Code are part of the substantive law of water rights of California, and are thus binding on the United States. He further points out that the Secretary of the Interior, the official charged with the administration of the Reclamation laws, has repeatedly recognized the applicability of them to the operations of the United States.[88]
*151 Furthermore, all doubt as to whether or not Sections 11460 and 11463 were part of the substantive law of California and intended to apply to operation of the project by the United States, was removed by the enactment in 1951 of Section 11128 of the California Water Code, which reads as follows "§ 11128. Limitations of §§ 11460, 11463: Application. The limitations prescribed in Sections 11460 and 11463 shall also apply to any agency of the State or Federal Government which shall undertake the construction or operation of the project, or any unit thereof, including, besides those specifically described, additional units which are consistent with and which may be constructed, maintained, and operated as a part of the project and in furtherance of the single object contemplated by this part."
It is clear that Sections 11460 and 11463 apply to the operations of the United States at Friant, and that any diversions of the San Joaquin river waters out of the counties of Fresno and Madera are subject to the prior right of plaintiffs and their class to all the water reasonably required to adequately supply their needs for reasonable and beneficial uses to which their land is now or may be adaptable in the future by reasonable methods of diversion.
In 1927 the Legislature enacted Chapter 286 of the Statutes of California which permitted the Department of Finance to file applications for the appropriation of water. The Statute was amended from time to time, and as so amended was codified in 1943 as Sections 10500, 10504 and 10505 of the California Water Code.
Section 10500[89] authorizes the filing of applications to appropriate water which in the judgment of the Department of Finance may be required in the development and completion of a whole or any part of a general or coordinated plan for the development of water resources, and specifically makes the provisions of Part 2 of Division 2, Sections 1200 to 1801, of the Water Code applicable to such applications; Section 10504[90] permits the assignments of such applications to, among others, "the United States of America or any of its departments or agencies", when the assignment is not in conflict with the general or coordinated plan of development; Section 10505 provides that no assignment shall be made of any such appropriation that will, in the judgment of *152 the Department of Finance, deprive the County in which the appropriated water originates, of any such water necessary for the development of the County.
Applications Nos. 5637 and 5638 were both filed on July 30, 1927, by the Department of Finance, and Application No. 9639 was filed August 2, 1938.[91] As heretofore noted, no permits were ever granted thereon, none of them have ever come on for hearing, or were set for hearing until the day the evidence in this case concluded, on December 31, 1954.
On the 30th day of September, 1939, the Department of Finance assigned said three above-numbered applications to the United States of America. The full text of the assignment appears as part of Exhibit A-48-A. The assignment, after reciting the filing of the applications, the authorization contained in the Act of 1927, as amended, and that the United States was then engaged in the construction of the Central Valley Project, finds that the applications and such appropriations of water as were thereby made, and all right, title and interest therein and thereto, and all right, title and interest in and to water is for the purpose of development not in conflict with any general or coordinated plan looking toward the development, utilization and conservation of water resources of the State of California, but is in furtherance thereof, and "that the said assignment in the form and substance hereinafter made of the aforesaid applications will not in the judgment of the State Department of Finance deprive any county in which said appropriated water originates of any such water necessary for the development of such County." It then provides that the State Department of Finance "does hereby transfer, assign, and set over to the United States of America, to be exercised by and through its Bureau of Reclamation for the use and benefit of said Central Valley Project of California, all its right, title and interest to the aforesaid applications Nos. 5637, 5638 and 9369, and such appropriations of the water of said river as were made thereby, and all right, title and interest in and to the water and the use of water covered thereby or initiated thereunder."
It is the contention of plaintiffs' counsel that insofar as such assignment *153 attempted to transfer "all right, title and interest in and to the water," such assignments are void as being in contravention of the Constitution of California.
It is unnecessary to reach the question of the constitutionality of any statute of California for the reason that, from the terms of the statutes the Department of Finance could not acquire the "right, title and interest in and to the water," and hence could not transfer it. The Department was authorized to file applications to appropriate water, which could give no right until a permit should be granted by the State Engineer, and as seen from the discussion elsewhere, the permit grants only a right to the use of water so long as it is being beneficially and reasonably used by reasonable methods of diversion and use. The assignments by the Department of Finance to the United States were thus ineffectual to transfer anything except the right to pursue the applications to permit, under the terms and conditions of the Water Code of California.
The Attorney General in Opinion No. 53/298 [25 Ops.Cal.Atty.Gen. 8] hereinbefore adverted to, expresses the opinion that Section 10505 "properly construed and applied" does not violate Article XIV, Section 3 of the California Constitution.
While serious doubts are immediately suggested as to the constitutionality of the provisions vesting in the Department of Finance, the power of determination as to whether or not any assignment will deprive a County of origin of the water necessary for the development of that County, without notice to, or hearing of said County of origin, or any of its inhabitants, in view of Article VI, Section 1, Article XIV, Sections 1 and 3, and Article I, Section 14, as well as the due process clause of the California Constitution,[92] it is not necessary to reach or decide that question because, properly construing and applying Sections 10500, 10504 and 10505, and considering them in connection with all other applicable provisions of California law as heretofore discussed, the constitutional question does not arise for several reasons: (1) the assignment to the United States can create no greater right than was possessed by the Department of Finance by the filing of the applications; (2) neither the applications nor permits granted on them could cover or affect any rights to water needed by plaintiffs and their class for their reasonable and beneficial uses, but only water which might be surplus thereto or in excess of those needs; (3) the applications were specifically made "subject to existing rights" which, of course, includes the existing rights of plaintiffs and their class hereinbefore discussed; (4) as heretofore seen under the heading "Applications to Appropriate Water," and as contended by counsel for the California Division of Water Resources, no right can vest under an application until a permit has been grantedand no permits have been granted; (5) any permits which may be granted by the State Engineer upon said applications are subject to the provisions of Sections 11460 and 11463 whether contained in the permit or not.
The watershed of the San Joaquin river is located entirely in the counties of Fresno and Madera. The thread of the river between Friant and Mendota forms the boundary line between Fresno and Madera counties. The areas of Madera and Chowchilla Irrigation Districts served by the Madera canal are located entirely in Madera County; but the area of all the irrigation districts served by the Friant-Kern canal are located in counties other than either Madera or Fresno. Hence the Watershed and County of Origin Statutes would, by themselves, be no bar to the diversions made to the Madera and Chowchilla *154 Irrigation Districts insofar as the rights of the plaintiffs and their class are concerned; but in addition to all the other reasons herein in this Opinion set forth, they do act to protect the plaintiffs and their class in their rights to water for their reasonable and beneficial uses insofar as diversions are made to the districts served by the Friant-Kern canal. The lands of the plaintiffs and their class are not only located in the area immediately adjacent to the river, which can be conveniently supplied by water from the river, but the plaintiffs and their class are "inhabitants and property owners therein," as are also the City of Fresno and its inhabitants, and Tranquillity Irrigation District and its water users.
The Opinion of the Attorney General, No. 54/159 [25 Ops.Cal.Atty.Gen. 32] deals with the application of Sections 10500 and 10505 insofar as proposed assignments are to be made concerning applications filed on the Feather river. That Opinion does not apply to the instant fact situation, and it is necessary only to say that no statements contained therein are controlling or applicable to the assignments involved in the instant case.
XV.
Class Action.
The question as to whether or not this is a class action under Federal Rules of Civil Procedure, rule 23, was raised on the Motions to Dismiss and was decided adversely to the defendants.
Some defendants have again, by special defenses in their answers, raised the same question.
Rule 23 reads as follows:
"(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
"(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
"(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
"(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought."
In the Opinion on the Motion to Dismiss reported in 90 F.Supp. 773, 804 et seq., this Court held against defendants' contention but did not then make a determination as to whether or not the "character of the right" sought to be enforced came under subdivision (1), (2), or (3) of Paragraph (a) of Rule 23, Federal Rules of Civil Procedure.[93]
*155 The "character of the right" sought to be enforced is to be determined according to the laws of the State of California.
It is to be recalled that the Court has found from all of the evidence in the case that all of the land lying within the alluvial cone lines of the San Joaquin river described as the "Lee" lines have as a common source of supply the waters of the San Joaquin river as it flowed before the construction of the Friant project and works.
Although it has been stated many times, it is again necessary to repeat, that this suit is not a case where the water users, either riparian or overlying, are seeking to enforce any separate or several rights among themselves or against one another, or to have a given amount of water declared and adjudicated to be the right for use on a specified tract of land. The Complaint was predicated, the Pre-trial Order formed, and the case tried, upon the basis that the character of the right sought to be enforced is a common right to water from a common source of supply, namely, the San Joaquin river, and that there was but one act of taking that common source of supply, viz.: the impoundment and diversion of the water back of Friant dam.
In addition to the authorities referred to in D.C., 90 F.Supp. 773 to the effect that the character of the right sought to be enforced is a common one, there are numerous other California cases to the same effect.
As early as 1889 the Supreme Court of California in Lytle Creek Water Co. v. Perdeu, 65 Cal. 447, 4 P. 426, 430, held that the several appropriators of all of the water of a stream were either tenants in common or joint tenants of the water, because no one of them could certainly state which part of the waters was his own, and further held that one could sue for all, stating: "Whether joint appropriators, holding the estate as joint tenants or tenants in common, the same is the result. Each can recover the whole, or take the necessary steps to protect the whole against the acts of a wrongdoer."
In Hudson v. Dailey, 1909, 156 Cal. 617, 105 P. 748, the Court held that there was no rational ground for any distinction between overlying and riparian owners as a class when the source of supply was common to both.
In Seneca Consolidated Gold Mines Co. v. Great Western Power Co., 1930, 209 Cal. 206, at page 220, 287 P. 93, at page 98, 70 A.L.R. 210, the Court said: "Indeed, the riparian right is in its nature a tenancy in common and not a separate or severable estate."
In Churchill v. Lauer, 1890, 84 Cal. 233-236 et seq., 24 P. 107, 108, the *156 Court had the following to say: "We think that the plaintiffs had a right to join in the action. There is an exception, at least in equity cases, to the general rule as to joinder. This is stated by Story as follows: `Another exception to the general doctrine respecting multifariousness and misjoinder, which has already been alluded to, is where the parties, either plaintiffs or defendants, have one common interest touching the matter of the bill, although they claim under distinct titles, and have independent interests. The cases respecting rights of common, where all the commoners may join, or one may sue or be sued for all, of parishioners to establish a general modus, or of a parson to establish a general right of tithes against parishioners, and others of a like nature, already stated under another head, fully exemplify the doctrine; for in all of them there is a common interest centering in the point in issue in the cause.' Story, Eq. Pl., § 285. And this exception has been held to cover cases like the present. In Ballou v. Inhabitants of Hopkinton, 4 Gray, Mass., [324] 328, it was held that the owners of different mills may join in a bill in equity to enjoin a stranger from letting off water from a reservoir which they had erected to collect the waters of a stream for the purpose of supplying their several mills. And Shaw, C. J., delivering the opinion, said: `Although the plaintiffs are several owners of separate and distinct mills injured by the alleged stoppage, diversion, and waste of the water of Mill river, and to recover damages for which each owner must bring his several action at law to obtain a remedy for his particular injury, yet they have a joint and common right in the natural flow of the stream, and in the reservoir by which its power is increased, and a joint interest in the remedy which equity alone can afford, in maintaining a regular flow of the water of the reservoir at suitable and proper times, so as best to subserve the equal rights of them all. The remedy in equity, therefore, would, by one decree in one suit, prevent a multiplicity of actions.' In the foregoing case the plaintiffs had increased the flow of the stream by collecting its waters in a reservoir. The decision, however, did not proceed upon this circumstance, but was put upon the ground of the common right `in the natural flow of the stream.' The same principle was laid down in Reid v. Gifford, Hopk. Ch. 419. There several proprietors of separate and distinct lands and mills, supplied by a natural water-course, were allowed to join in an application for an injunction to prevent the defendants from diverting the water by means of a canal above the plaintiffs' property; and Chancellor Sandford said: `The rights of the several complainants to their respective lands are indeed distinct, but the grievance in question is a common injury to all the complainants. The water, in its natural descent from the lake, becomes the property of each of the complainants successively. All the complainants thus have right in the same subject, and the nature of the case forms a community of interests in the complainants.'"[94]
*157 Here the "grievance in question" is the common injury to all the plaintiffs and to all the members of their class by the impoundment and diversion of water at Friant.
The character of the right sought to be enforced is the common interest, not only of each of the plaintiffs, but of all of the riparian and overlying landowners within the alluvial cone to have an assured flow of water necessary to meet the minimum needs of the area.
Clearly, under California law, the "character of the right" sought to be enforced in this case is a "common" right of each and all the riparian and overlying owners on the alluvial cone of the San Joaquin river under the terms of subdivision (1) of Rule 23(a), Federal Rules of Civil Procedure, and not a "several" right under either subdivision (2) or subdivision (3) of that Rule.
Two other elements are necessary to sustain a class action, viz.: the parties must be so numerous as to make it impracticable to bring them all before the court; and those who are parties must fairly insure the adequate representation of all who are not parties but who are in the class.
The first of the above requirements is obviously met as there are many hundreds of owners of property along the river and within the boundary lines of the alluvial cone.
When the second requirement is met by adequacy of representation, then due process is accorded to those who are not named as parties, and the decree is res judicata as to them. The fulfillment of the requirement of due process by adequacy of representation is the prime requisite of a class action. Smith v. Swormstedt, 1853, 16 How. 288, 57 U.S. 288, 301-303, 14 L. Ed. 942; Hansberry v. Lee, 1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22. In the latter case, the Court pointed out *158 that there is adequacy of representation where some members of a class represent other members in a litigation where the sole and common interest of the class in litigation is either to assert a common right or enforce a common obligation. That is precisely the situation here. That test was not met in Hansberry v. Lee, supra, where the facts were so dissimilar from this case that there is no occasion to review them. See also Mullaney v. Anderson, 1952, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458.
The conclusions of this Court on the Motions to Dismiss, that the requirements for adequacy of representation were then met, are abundantly supported by the evidence in the case and are adhered to. No reason can be conceived as to how any property owners,[95] whether riparian or overlying, prescriptive or appropriative, using water for agricultural, domestic, or municipal purposes within the alluvial cone of the San Joaquin river could have an interest in the flow of the water of that river which would be different from, or adverse to, an assured flow of water to meet the needs of the area, under California Law and the Federal Reclamation Acts, for water, which is the relief sought by the plaintiffs on behalf of themselves and their class in this case. For an interest to exist which would be adverse to the interest of the plaintiffs, one would have to suppose that there was a property owner in the area of the alluvial cone who desired that his source of supply of water for agricultural, domestic, or municipal uses be cut off.
Moreover, every type of water right within the area taking or using water for agricultural, domestic, or municipal purposes is, and has been, represented throughout the proceedings.
It is to be remembered that the advantages of a class action device, when the tests of adequacy of representation are met, is not only that the members of the class are saved the cost and trouble of filing or defending separate suits, or of all joining or being joined as parties in one suit, but the opposing party is entitled to the advantage of being free from the harassment of litigation in the future involving the same obligation and right. The opposing parties in this instance are the United States, the defendant officials, and the defendant districts.
The contention of the defendants, as expressed by the Attorney General of the United States, that the interests of the plaintiffs and each of the users within the alluvial cone of the San Joaquin river are adverse to one another, and that this cannot be a class action, is without foundation. The argument is to the effect that some plaintiffs take water directly from the river, others both from the river and from wells, and others from the underground only, and that some rights may be appropriative or prescriptive, and that hence all interests are adverse to one another. The argument confuses the method of taking water with the character of the right sought to be enforced, which is to prevent interference with the common source of supply to all of such uses. The community of interest, in the common source of supply, as seen from the California cases, does not depend upon the nature of the water right; nor does it depend on the particular manner in which the prior right has, in the past, been exercised.
Where, as here, there is a common source of supply to the owners of all rights, and that common source is invaded or threatened, there is no reason in law or logic why any one or another nature of right cannot stand in judgment for all others, whether riparian, *159 overlying, appropriative, or prescriptive, in a class action to protect that source of supply which is common to all of them. As to the common source and the common act of invasion of that source, their interests are identicalalthough as between themselves they may be different in amount, or different in quality, i. e., prescriptive, appropriative, or the like.
It is the conclusion of the Court that the within action is a class action, and meets all the requirements of Rule 23 (a) (1) of the Federal Rules of Civil Procedure.
The rights of those whose property lies within the alluvial cone line of the San Joaquin river, and who have filed disclaimers, sold to, or settled their rights with the Government, or recovered judgments in the Court of Claims, cannot be affected by the within holding.[96] They are estopped from enforcing rights to water contrary to their sale or contract, and those who have recovered damages in the Court of Claims for their entire water right would likewise be estopped from attempting thereafter to secure water. Such interests are not adverse to the interests of the plaintiffs so as to destroy the character of this suit as a class action for two reasons. In the first place, a settlement or a sale or a suit presupposes a right to water from the common source, which is what the plaintiffs seek to establish here. In the second place, if there has been a sale of, or settlement, or recovery of judgment for, an entire right by a member of the class, then that person no longer owns an enforceable right, and that being so, he can have no interest adverse to plaintiffs and their class. That is not to say that damages may or may not be recovered for injury actually sustained prior to the effectuation of a physical solution which would in fact satisfy the prior right to water needed for the reasonable and beneficial uses of such prior right under the 1928 Constitutional amendment.
The contention that because several of the named plaintiffs have filed Tucker Act suits for past damages their interests are so adverse to the remainder of the class as to prevent virtual and adequate representation of the class by them, is without merit, for the same reasons.
XVI.
Election of RemediesTucker Act.
The contention that the plaintiffs who have filed Tucker Act, 28 U.S. C.A. §§ 1346, 1402, 1491 et seq.[97] suits for past damages, made an election of remedies, and are barred from receiving equitable relief, was disposed of in D.C., 90 F.Supp. 773. In addition to what was stated therein and hereinbefore in relation to those matters, it should be added that the Tucker Act suits were filed after the within suit was filed, and the Supreme Court has held that there is no inconsistency in seeking damages for past action after seeking an injunction for the enforcement of a right and the prevention of future damages. In Brady v. Daly, 2 Cir., 83 F. 1007; Id., 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109, the plaintiff sued in equity for an injunction to prevent performance of a play which he asserted infringed his work of art. The injunction was issued. Thereafter, the plaintiff sued for damages under R.S. § 4966. Damages were awarded and an appeal taken. The Court held that there was no accounting for the profits in the equity action and no election of remedies. Upon appeal, Brady v. Daly, 175 U.S. 148, 20 S.Ct. 62, 67, 44 L.Ed. 109, the Supreme Court held that the plaintiff by first proceeding in equity for an injunction and incidentally for profits, did not make an election to recover profits which barred him either from obtaining an injunction or a subsequent action for damages. The court pointed out that *160 the injunction was sought on the ground that plaintiff's damages could not be accurately ascertained or computed and that there was "no election of an inconsistent remedy by the plaintiff in the action which would bar him from the maintenance of this action for the recovery of damages".
Under the Tucker Act, suit can only be filed for damages which have occurred prior to suit. "The Tucker Act does not authorize suit against the United States for anticipated damages in advance of an actual taking", Thompson v. United States, 9 Cir., 1954, 215 F.2d 744, 745. As hereinbefore pointed out that case settled the matter in this Circuit that the making of appropriations for the building of a dam and the commencement of the construction of the dam do not constitute acts which, in and of themselves, cause damage to an owner of a water right. The court further said in that case: "There may never be a taking. The commencement of construction does not necessarily mean that it will be completed. The project may be abandoned. The height of the dam may be changed, and it may be that no damage to plaintiff will result even though it be completed in a modified form."
The only damages the plaintiffs and members of their class could recover at the time of filing the within suit would have been for loss of use of water, or invasion of their vested right, by the actual taking of water before that date. As seen from what has heretofore been said, the plaintiffs and their class could not objecti. e., be damagedby the taking of water they did not need; and prior to suit and after the defendants commenced the impounding of water, there was not only the natural flow in the river, but at times the natural flow was increased over what it would have been had the dam not been there.
XVII.
Inadequacy of Remedy at Law.
In addition to what is said in D.C., 90 F.Supp. 773 in holding against the contention of defendants that plaintiffs have a plain, speedy, and adequate remedy at law by way of suits for damages under the Tucker Act, it should be added that the millions of words of evidence and the hundreds of exhibits in this case demonstrate beyond peradventure not only the ultimate difficulty of ascertainment of the amount of damages which might result from the taking, wholly or partially, of a water right, but also, the difficulty of ascertainment of the time when the injury from such taking might occur. There is still another uncertaintydamage may result to crops in one year and not in another. Certainly there would be nothing either plain, or speedy, or adequate in refusing injunctive relief and relegating the plaintiffs and all the members of their class to damages. The Supreme Court in United States v. Dickinson, 1947, 331 U.S. 745, 748-749, 67 S.Ct. 1382, 91 L. Ed. 1789, recognizes the uncertainties inherent in trying to fix damages resulting from the construction of a dam. See also Danforth v. United States, 1939, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240; Thompson v. United States, 9 Cir., 1954, 215 F.2d 744.
As was said in Walla Walla Water Co. v. City of Walla Walla, 1898, 172 U.S. 1, at page 12, 19 S.Ct. 77, at page 82, 43 L.Ed. 341: "What the measure of such damage was, would be exceedingly difficult of ascertainment, and would depend largely upon the question of whether the value of the plaintiff's plant was destroyed, or merely impaired. It would be impossible to say what would be the damage incurred at any particular moment, since such damage might be more or less dependent upon whether the competition of the city should ultimately destroy, or only interfere with, the business of the plaintiff.
"This court has repeatedly declared in affirmance of the generally accepted proposition that the remedy at law, in order to exclude a concurrent remedy at equity, must be as complete, as practical, and as efficient to the ends of justice and its prompt administration, *161 as the remedy in equity. Boyce's Executors v. Grundy, 3 Pet. 210, 215 [7 L.Ed. 655]; Insurance Co. v. Bailey, 13 Wall. 616, 621 [20 L.Ed. 501]; Kilbourn v. Sunderland, 130 U.S. 505, 514, 9 S.Ct. 594 [32 L.Ed. 1005]; Tyler v. Savage, 143 U.S. 79, 95, 12 S.Ct. 340 [36 L.Ed. 82].
"Where irreparable injury is threatened, or the damage be of such a nature that it cannot be adequately compensated by an action at law, or is such as, from its continuance, to occasion a constantly recurring grievance, the party is not ousted of his remedy by injunction." (Emphasis supplied.)
Clearly the remedies at law of the plaintiffs and their class are so uncertain and inadequate that this court is more than justified, under the evidence, in invoking its equity powers in their fullest scope.
XVIII.
Physical SolutionForm of Judgment.
From what has heretofore been said, it is clear that this Court is required, under the law and the evidence, to make a declaratory judgment to the effect that the rights of the plaintiffs and their class which, without repeating them here, are as set forth under the heading "California Water Rights of Plaintiffs," and are paramount and superior to all claims of right of the United States and all the other defendants, and that, that portion of the flow of the San Joaquin river at Friant which is not necessary to satisfy those rights is, from time to time surplus water, subject to appropriation under the terms of the California Constitution and Laws.
From all the evidence it is clear that unless this court, in the exercise of its equity powers, gives injunctive relief to protect such rights, the damage to the plaintiffs and their class will be great, immediate, and irreparable. From what has been said, it is also apparent that their damage will be continuing and recurring from year to year and season to season, which alone is sufficient to invoke the injunctive processes of a court of equity. As stated in Walla Walla Water Co. v. City of Walla Walla, 1898, 172 U.S. 1, at page 12, 19 S.Ct. 77, at page 82: "Where * * * the damage * * * is such as, from its continuance, to occasion a constantly recurring grievance, the party is not ousted of his remedy by injunction."
The plaintiffs and their class are "if necessary * * * entitled to the full natural flow of the stream or its equivalent undiminished in quantity and unimpaired in quality", Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, 445, 90 P.2d 537, 547, 91 P.2d 105, to satisfy their prior and paramount rights to water for reasonable and beneficial uses by reasonable methods of diversion and use to which their land is presently, or in the future may be, adaptable, not only for surface diversion between Friant and Gravelly Ford, but for recharging and replenishing the underground between Friant and Mendota. If such water is not made available to them, they and each of them will suffer great, immediate and irreparable injury.
The problem is to determine the amount of water necessary to satisfy those rights, and that, in turn, brings the court to the consideration of the form of decree for the enforcement of them.
This court is an equity court. Its powers and responsibilities in that respect are as broad as the powers and responsibilities of equity.
In exercising those powers, this court in a water rights case is to be guided by the exercise of the equity powers by the State Courts of California in similar cases.
Here, the full scope of the equity powers of the court is to be recognized and applied, not only by virtue of the provisions of Section 8 of the basic Reclamation Law, but as well by the very broad grant of jurisdiction contained in S. 18, 43 U.S.C.A. § 666, which makes *162 the United States subject to the judgments, orders and decrees of this court in the same manner and to the same extent as a private individual under like circumstances.
The California courts, confronted with the command of the 1928 Constitutional amendment that water should not be wasted, and also with the guaranties of that amendment that existing water rights be preserved to the extent of their present and prospective reasonable and beneficial uses, evolved a type of decree which for the sake of convenience is called a "physical solution."
In essence, such decree is but the conditional injunctive decree of a court of equity. Such decrees in California water rights cases are characteristic examples of the preservation by equity courts of the elements of flexibility and expansiveness so that new remedies may be invented or old ones modified in order to meet the requirements of every case and to satisfy the needs of every progressive social condition. Union Pacific Railroad Co. v. Chicago, Rock Island & Pacific Railroad Co., 1895, 163 U.S. 564, 601, 16 S.Ct. 1173, 41 L.Ed. 265.
Decrees of physical solution requiring the expenditure of money and making physical changes have been made by the federal courts, and since the approval of such a decree by the Supreme Court in Montezuma Canal Co. v. Smithville Canal Co., 1910, 218 U.S. 371, 31 S.Ct. 67, 54 L.Ed. 1074, the power and duty of an equity court to do so does not seem to have been questioned in the higher courts. In that case the District Court of the Territory of Arizona, in a decree determining the rights of appropriators, appointed a water commissioner, and required a physical solution by giving him the power to: "direct the placing of proper gates, dams or other means for the control of the water of said river at the heads of the canals or other points on the banks of said canals as he may direct, at the expense of the parties hereto interested herein, and to make such rules and regulations as he may deem proper and expedient, to be observed by the parties hereto, for the distribution and use of said water."[98]
The court while remanding the case for further proceedings in connection with a question of res judicata, nevertheless held that the decree appointing the water master with the powers indicated, "did not transcend the bounds of judicial authority." See also the Ninth Circuit cases of: Gila Valley Irrigation District v. United States, 1941, 118 F.2d 507; and Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 1917, 245 F. 9, at page 29.
In State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, at page 616, 65 S.Ct. 1332, at page 1350, 89 L.Ed. 1815, the court said: "There is some suggestion that if we undertake an apportionment of the waters of this interstate river, we embark upon an enterprise involving administrative functions beyond our province. * * * But the efforts at settlement in this case have failed. A genuine controversy exists. The gravity and importance of the case are apparent. The difficulties of drafting and enforcing a decree are no justification for us to refuse to perform the important function entrusted to us by the Constitution."
The problems in a case such as this are pretty well summed up in Union Mill & Mining Co. v. Dangberg, C.C.D.Nev.1897, 81 F. 73, at page 119, where the court said: "The difficulty in arriving at a proper decree is apparent. The power of regulating or controlling the amount of rain or snow is beyond the jurisdiction of courts. No decree can be framed, which is based either upon riparian rights or of appropriation, or of both, which overlooks the uncertainty of the season, or the necessities *163 of the various litigants, so as to meet the demands of justice and of right. It would be unjust and inequitable to compel the farmers in the valley to allow the water to run down to the mills when the quantity of water was wholly insufficient, to enable the complainant to run its mills with water power. There must be a beneficial use before any protection can be invoked. No provisions should be contained in the decree which would result in depriving one party of the use of the water when the other party could make no beneficial use of it. This would amount to a destruction, instead of a protection, of the rights of the parties. In the appropriation of water, there cannot be any `dog in the manger' business by either party, to interfere with the rights of others, when no beneficial use of the water is or can be made by the party causing such interference. The same rules govern riparian rights. No riparian proprietor can dam up or withhold the use of the water of a river simply because the river is on his land, or so use it as to prevent its flowing down the channel to others having an equal right thereto, and entitled to an equal and beneficial use thereof, when such use could be made of the water except for such wrongful acts. A practical view ought to be taken of all the conditions, surroundings, and situations. The rights of all parties must be protected by the decree. The difficulty of enforcing it without the necessity of bringing independent suits should be avoided, if possible. Certainty in its terms, positiveness in its requirements, justice in its conclusions, will materially aid in the accomplishment of such a purpose. No theory is complete or practically efficient which does not recognize two distinct sources and objects of the equity jurisdiction, namely, the primary rights, estates, and interests which equity jurisprudence creates and protects, and remedies which it confers. Complainant would be compelled to resort to numerous actions in order to obtain complete redress, or be subject to numerous actions by its adversary party, unless the court of equity interferes and decides the whole matter, and gives final relief by one decree. `The fundamental principle of equity in relation to judgments is that the court shall determine and adjust the rights and liabilities concerning or connected with the subject-matter of all the parties to the suit, and shall grant the particular remedy appropriate in amount and nature to each of those entitled to any relief, and against each of those who are liable, and finally shall so frame its decree as to bar all future claims of any party before it which may arise from the subject-matter, and which are within the scope of the present adjudication.' 1 Pom.Eq.Jur. § 115. These requirements of the law could readily be complied with by this court in a suit brought for the purpose of establishing the rights of all the parties, unhampered by any former decrees."
This court, in its order of August 29, 1951, required the plaintiffs, the defendant officials and the State of California to each submit its plan of physical solution,[99] which was done in December, 1951, prior to the commencement of the trial.
The matter of a physical solution becomes a practical problem *164 which will vary with each case. That practical problem is best stated by the questionhow can the utmost beneficial use be made of the waters of the particular stream without invading prior vested water rights? If those prior vested water rights can be preserved and satisfied by giving them the water to which they are entitled, and at the same time waste can be prevented by reasonable changes in natural physical characteristics, then, under the California decisions, the court may solve that problem by the use of its injunctive powers, conditioned upon making those physical changes. The parties seeking to make an appropriation or to take water, in derogation of prior vested rights, can be enjoined from taking water until those physical changes are made. The efforts of the courts of California in imposing conditional decrees of injunction requiring a physical solution have been to, as near as possible, satisfy the prior vested right whether riparian or overlying, and at the same time make available, for appropriation and reasonable and beneficial use elsewhere, all water in excess of that required to satisfy those prior vested rights.
Since the 1928 Constitutional amendment, the Supreme Court of California has required or approved conditional injunctions requiring physical solutions in the following cases: Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, 380, 40 P.2d 486; Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 1935, 3 Cal.2d 489, 575, 45 P.2d 972; City of Lodi v. East Bay Municipal Utility District, 1936, 7 Cal.2d 316, 341, 60 P.2d 439; Reclamation District No. 833 v. Quigley, 1937, 8 Cal.2d 183-188, 64 P.2d 399; Hillside Water Co. v. City of Los Angeles, 1938, 10 Cal.2d 677, 688, 76 P.2d 681; Rancho Santa Margarita v. Vail, 1938, 11 Cal.2d 501, 558, 81 P.2d 533; Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, at page 496, 90 P.2d 537, 91 P.2d 105, on petition for rehearing; City of Pasadena v. City of Alhambra, 1949, 33 Cal. 2d 908, 915, 936, 207 P.2d 17; Allen v. California Water & Telephone Co., 1946, 29 Cal.2d 466, 484, 176 P.2d 8.
The California cases establish that prior to 1928 the owner of a prior vested right could not be compelled to submit to a physical solution, but since the 1928 amendment, that is not the law. It is not only within the power, but it is also the duty, of the trial court to suggest on its own motion a physical solution if none satisfactory to it has been offered by the parties. And the court possesses the power to enforce such solution regardless of whether the parties agree. City of Lodi v. East Bay Municipal Utility District, supra, 7 Cal.2d at page 341, 60 P.2d 439; Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, supra, 3 Cal.2d at page 574, 45 P.2d 972; Rancho Santa Margarita v. Vail, supra, 11 Cal.2d at page 559, 81 P.2d 533. In arriving at a physical solution, each case "must turn on its own facts, and the power of the court extends to working out a fair and just solution, if one can be worked out, of those facts." Rancho Santa Margarita v. Vail, supra, 11 Cal. 2d at pages 560-561, 81 P.2d at page 563. The prior vested right cannot be compelled to incur any material expense in connection with the physical changes necessary to a solution, but those expenses must be borne by the one desiring to appropriate. City of Lodi v. East Bay Municipal Utility District, supra, 7 Cal.2d at page 341, 60 P.2d 439; Rancho Santa Margarita v. Vail, supra, 11 Cal.2d at page 561, 81 P.2d 533; Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, supra, 3 Cal.2d at page 574, 45 P.2d 972. The physical solution must protect the one having the superior right and prevent the ultimate destruction of that right. Peabody v. City of Vallejo, supra. The cases all hold that the court should retain jurisdiction to modify its decree as occasion may demand, either on its own motion or on motion of any party. Thus the decree must be sufficiently flexible *165 to permit changes needed to continually insure the utmost beneficial use of water in the stream.
City of Lodi v. East Bay Municipal Utility District, supra, 7 Cal.2d at page 344, 60 P.2d at page 452, illustrates that the decree of physical solution is but a conditional injunction. There, the operations of the defendant district were reducing the underground supply on which the City depended. A decree entailing huge releases of water to preserve percolation was entered by the trial court. After holding that this decree entailed a waste of water and that a physical solution should have been sought, the Supreme Court directed that: "The decree should then be reframed to provide that the duty rests upon the District to maintain the levels of the plaintiff's wells above the danger level so fixed by the trial court; that, in the event the levels of the wells reach the danger point, the duty be cast upon the District to supply water to the city, or to raise the levels of the wells above the danger mark; and, if the District does not comply with this order within a reasonable time, then the injunction decree already framed, or upon a proper showing as modified by the court under its continuing jurisdiction, shall go into effect."[100] See also Rancho Santa Margarita v. Vail, supra, 11 Cal.2d at page 561, 81 P.2d 533.
The physical characteristics involved in this case are clearly such that the "equivalent" of the "full natural flow of the stream * * * undiminished in quantity and unimpaired in quality" can be provided by a reasonable physical solution which will satisfy the prior vested rights of the plaintiffs and their class and, at the same time, make available by far the greater portion of the flow of the stream for other reasonable *166 and beneficial uses under applications to appropriate water, if such applications are pursued to permit.
The lands which are to be served by a physical solution are well defined. They are the lands within the alluvial cone lines (the "Lee" lines) of the San Joaquin river between Friant and Mendota. In the full natural flow of the river after the power dams were completed in 1928, large quantities of water percolated into the underground (though the precise amount thereof cannot be ascertained), and the water level in the river was maintained at a sufficient height and of a sufficient depth to permit surface diversion by pumping directly from the river. One of the defendants' expert witnesses who had spent many years on the river testified that the quantity percolating between Friant and Mendota was in excess of 200,000 acre-feet a year. All of the experts agreed that the greater the "wetted perimeter" of the river (i. e., the greater the volume and the higher the level of the surface of the water flowing between the banks of the river), the greater the percolation, although some of the same witnesses who so agreed, insisted that so long as there was any water at all in the river, there was a maximum percolationa conclusion not justified by the evidence in any respect.
To secure as near as possible the "equivalent" of the natural flow, it is necessary that a physical solution, in order to provide percolation, should maintain the level of the water in the river at a sufficient height between the banks to intersect the aquifers fed by the river, and that there be a sufficient flow to prevent the fines and algae from clogging up and making impervious the entrance to such aquifers, and to provide such velocity and volume of water that will force water into the aquifers. The surface diverters' rights would be satisfied by the maintenance of sufficient water at suitable levels to permit their river pumps to operate as they have in the past.
When these conditions are satisfied by physical changes along the stream, and the amount of water passing the lowest point of the affected lands is fixed at a reasonable quantity, the water rights of owners of land in the alluvial coneso far as water is contributed by the San Joaquin riverare satisfied and protected, and, at the same time, there is no waste of water.
In the Opinion denying the Motion to Dismiss, 90 F.Supp. 773, at page 803, this court stated that one of the requirements of working out a physical solution was the determination of the total amount of water which each plaintiff and each member of the class had vested in each separate parcel of land for reasonable and beneficial uses.
A further examination of the California cases convinces this court such a requirement is not necessary. In fact, since the 1928 amendment, the California courts have progressively been reaching the point of rejection of the idea in any decree of fixing a definite amount of water measurable in second-feet, acre-feet, or miner-inches to any particular parcel of land.
In City of Lodi v. East Bay Municipal Utility District, 1936, 7 Cal.2d 316, 60 P.2d 439, the physical solution that was required was a decree that would be so framed as to put the duty on the defendant Municipal Utility District to maintain the water level in plaintiff's wells above a certain point.
In Stevinson Water District v. Roduner, 1950, 36 Cal.2d 264, 223 P.2d 209, the objection was made to the decree that there was a fatal uncertainty in the injunction because it did not define the extent of plaintiff's superior right in terms of units of flow. This contention was rejected by the Supreme Court which pointed out the difficulty in fixing any precise amount of water which may be the due of any particular parcel of land because of the unpredictable fluctuations in the quantity of water available from year to year and season *167 to season. It may be added that it is just as difficult to predict the precise amount which may be needed to satisfy the reasonable and beneficial uses from year to year on the part of the owners of the prior vested rights in this case. Certain types of crops require more water than others; and when the less thirsty crop is planted, less water can be used. To fix a given quantity of water in terms of unit of flow to be delivered as of right to any particular parcel of land would result either in waste of water, or failure to protect the prior right, both of which are contrary to the requirement of the 1928 amendment to the Constitution. To illustrate, suppose the court should fix as a unit of flow 4 acre-feet for a particular parcel of land, but that during a given year only 2½ acre-feet were used, the rest would be wasted; conversely, if 2½ acre-feet were fixed, and 4 acre-feet were needed, the prior right would not be protected. This also illustrates the irreparable and recurring nature of the injury resulting to plaintiffs and their class from the impounding and diversion at Friant.
It is not necessary, even if it were possible, to determine in this case the precise quantity of water which each parcel of land needs at any given point in time.
The purposes to be accomplished by a physical solution in this case can best be met by requiring ponding dams as hereafter described and a measured minimum unit of flow at the lowest check point to be established on the river below Friant, and not by any measured unit of flow required to be released from Friant dam, or any measured unit of flow to be delivered to any particular parcel of property, or by requiring such flow in the river as will maintain a certain water level in certain wellssuch as the wells of the City of Fresno. Any one of the latter methods would entail the waste of water, whereas the former would not. If the minimum flow at the lowest check point is exceeded, it is an indication that more water is being released than is required to satisfy both the percolation and surface diversions between Friant and the lowest check point. If, on the other hand, the flow at the lowest check point is less than the minimum, then it would indicate that not enough water is being released to satisfy those intervening demands. The greatest water conservation can thus be promoted, and protection at the same time given to the prior uses of water. The plans of physical solution submitted by each, the plaintiffs, the defendant officials, and the State of California, all recognize that such method of measurement at the lowest check point is the only way to accomplish a physical solution in this case, as that is the method of measurement provided in each although the plans differ widely in other respects.
The State and the Attorney General of the United States refer to the State's plan of physical solution and that submitted by the Bureau Officials as being substantially the same. They are not.
The State's plan,[101] without all the details, calls for some channelization in the river bed and the construction of five, and possibly six, permanent dams to be constructed by driving sheet piling across the river at substantially the same locations as dams numbered 1, 2, 3 and 4 of plaintiffs' plan, and the fifth dam to be located below Herndon at the same point as indicated by plaintiffs' dam numbered 8, with a possible sixth dam at mile 25.6 below Friant.[102] Its estimated initial cost is $240,000, with annual maintenance of from $6,000 to $7,000.
The Bureau officials' plan[103] of physical solution, without all the details, calls for some channel realignment and rectification, *168 the substitution of wells in a number of instances for river pumps, initial modification of a number of pumps, one "permanent" barrier equipped with a control gate at the head of Rank Island on the west channel, and "check dams" on the south side of Rank Island. Otherwise, the plan submitted by the officials calls for the installation of no dams, although the principal government witness admitted that check dams might be required where plaintiffs' recommended dams numbered 2, 3, 4, 5 and 8 are located, and possibly at other locations, which would cost from $37,000 to $79,000 each. In view of the indefiniteness of the government's plan, no overall installation cost is available. The maintenance cost under the government's proposed plan was estimated to be from $12,000 to $13,000, per year.[104]
In City of Lodi v. East Bay Municipal Utility District, supra, the court, 7 Cal. 2d at page 344, 60 P.2d at page 452, required a physical solution which "would afford to the city a continuance of its water supply, the same, for all practical purposes, as if natural conditions were required to persist."
Neither the plan of the State nor the plan of the defendant officials makes any pretense of simulating the natural conditions of flow of the river which was at the annual average rate of approximately 2,500 second-feet.
The plaintiffs' plan proposes the construction of 14 dams at specific locations, with a required flow which would permit 10 second-feet to flow over the lowest downstream dam after satisfying all intervening uses. The State's plan and the plan of the Bureau officials each call for the maintenance of only that flow of water in the river which will provide a minimum flow of 5 second-feet at Gravelly Ford.
The first dam downstream from Friant under plaintiffs' plan is approximately 6½ miles below Friant dam. The locations of plaintiffs' dams numbered 1, 2, 3, 4, and 8 are in the same locations as dams proposed by the State. The locations of the other dams are designated *169 by number on the various ExhibitsDefendants' A-9-A-1, No. 118, and Plaintiffs' Plan of Physical Solution, Exhibits 89 and 89-A. The dams proposed to be constructed under plaintiffs' plan call for the construction of a type of "collapsible" dam which has been successfully used for many years by the Pacific Gas and Electric Company on the Feather river. Each dam would consist of earth or rock rip-rap levees on each side of the river, with a section in the middle which would be collapsible; that is, the collapsible portion in the middle would have gates made of treated timber planks permanently attached to rails so that with the use of Gantry cranes they can be raised to create ponding, or lowered to permit flood flows, or flushing or scouring releases. The plan contemplates that the gates will be in ponding position except when necessary to lower them for flood releases or flushing or scouring releases not over three times in each year. The purpose of such flushing or scouring releases is to flush and scour the bed of the river of fines and algae and marine growth which would prevent seepage and percolation. It is estimated that such scouring releases would be of large volume but for short duration, not to exceed 24 hours, in order to give the force and velocity necessary to do not only the scouring, but also to force additional waters into the underground.
The estimated initial cost of the installation of all 14 dams called for in plaintiffs' plan of physical solution, including the purchase of the Gantry cranes for operation of the flood gates, is $1,124,536, and the annual cost of operation is estimated to be approximately $4,000.
The amount of water required to be released from Friant dam to operate the plan of defendant officials was estimated by the defendants' chief expert, Mr. Hill, to be 60,000 acre-feet of water per year, although in documents and tables, allowance was made for only 48,400 acre-feet per year. The amount of water required to operate the State's plan of physical solution was estimated to be about the same as that required by the Bureau of Reclamation plan. The same expert witness of the defendants estimated that plaintiffs' plan of physical solution with all 14 dams built, could be operated with 70,000 acre-feet of water per year, although Mr. Lee, plaintiffs' chief expert, estimated that the amount of water required to operate plaintiffs' plan of physical solution would be slightly in excess of 200,000 acre-feet per year, including 20,000 acre-feet total for the three short scouring and flushing releases. Plaintiffs' Exhibit No. 116 has the details of proposed releases and uses to which the water would be put, i. e., percolation, river pumping, evaporation, transpiration, and the like.
While the average annual flow of the river was at the rate of approximately 2,500 second-feet past plaintiffs' lands prior to the Friant project, plaintiffs' plan of physical solution is designed to simulate a flow of the river at the rate of only 2,000 second-feet. That is to say, if all 14 of the dams were to be built, then the water will be at that level and of that depth in the river bed, which in a natural state of flow would occur when the river was flowing at the rate of 2,000 second-feetor, in short, the equivalent of the natural flow of the river at 2,000 second-feet.
The plans of both the State of California and the defendant officials are each based on three postulates which are contrary to the evidence in the case; first, that the river does not contribute by percolation to the alluvial cone beyond the bluffs of the river; second, that so long as a live stream of five second-feet is flowing in the river, without ponding dams, collapsible or otherwise, all the contribution is made to the underground water which the river made as it flowed in a state of nature; and, third, that a live stream of five second-feet will permit the river pumps to operate.
It would serve no useful purpose to here review all the evidence in that respect, but illustrative of some of the evidence contrary to such contentions is the testimony of two witnesses, one *170 called by the defendant officials, and the other a responsible employee of the United States Bureau of Reclamation. The witness Barnes who had spent many years on the river as an employee of the Madera Irrigation District, was called by defendant officials, and testified that the loss by percolation from the San Joaquin river between Friant and Mendota before the operation of the project, was 211,000 acre-feet per year, or 292 second-feet continuously. According to the testimony of Eugene L. Christian, Central Valley Project Watermaster of the United States Bureau of Reclamation, the unmeasured losses from seepage, evaporation, transpiration, and percolation, not including river pumpers, between Friant and Mendota, with an average flow of the river of 2,500 second-feet, was 213 second-feet, which is in excess of 155,000 acre-feet per year. This witness also testified that with 200 second-feet released from Friant, only three second-feet percolated, whereas if 3,000 second-feet were released, 258 second-feet would percolate between Friant and Mendota.[105]
All of the evidence in the case, when considered together, not only strongly bears out the above conclusions, but just as strongly bears out the admissions made by all the expert witnesses, regardless of who produced them, that the greater the wetted perimeter of the river banks, the greater the percolation. It also bears out the conclusion that there is substantial percolation from the river beyond the bluffs, particularly to the south or Fresno side of the river.
Neither the plan submitted by the State nor the one submitted by the defendant officials makes provision for the sustaining or replenishing such underground water supply, and neither will accomplish that result.
The claim that the plan submitted by the State and the one submitted by the defendant officials will provide enough water to permit the river pumps to operate with a flow of five second-feet past the downstream boundary of each parcel of land and at Gravelly Ford is overwhelmingly refuted by the evidence.
The permanent dams, called for in the State's plan, and tentatively in the government's plan, will neither permit percolation nor provide water for the river pumps. The permanent dams will not permit percolation because the fine material which will be deposited together with algae and marine growth, would stop up the entrance to the aquifers by an impervious material, and prevent percolation, even to the immediate bottom lands. The permanent dams will not provide water for the river pumpers for the reason that in only a few years the ponds formed by them will be completely filled with silt and alluvial material, as admitted by the defendants' witnesses.
In the case of Heilbron v. Fowler Switch Canal Co., 1888, 75 Cal. 426, 17 P. 535, 537, the defendant had constructed *171 a dam and head gate and a canal for the diversion of water, and asserting that the water was worth little to the plaintiffs and much to the defendants, argued that no injunction should be issued because the defendant "had instructed its head-gate keeper that, whenever the water was low in the river, and there could be any cause of complaint by any one, or it would make any appreciable difference in the quantity of water in the river, he was not to take water, but to shut down his gate, and only take water when it would make no appreciable difference in the quantity flowing in the river." That is much the position of the defendants in this case. But as to that, the court said, 75 Cal. at page 432, 17 P. at page 538: "And certainly it would be a poor protection to the plaintiffs to have to depend upon the keeper of the head-gate of defendant to take only a proportionate amount of water, or to take water only when it could be done without injury to plaintiffs."
Neither the plan submitted by the State nor the one submitted by the defendant officials is such a physical solution as would provide water in satisfaction of the prior rights of plaintiffs and their class and at the same time conserve water and prevent its waste, both of which are required to be done by the Constitution and Laws of the State of California.
From the evidence in the case, it is quite clear that, on the whole, the plaintiffs' plan of physical solution will most nearly abide the California Constitutional requirement of conservation of water, by reasonable and beneficial uses of all water, the prevention of waste, and guarantee the protection of prior vested rights such as belong to the plaintiffs and their class here. And the court so holds.
If, as defendants contend, there is but slight percolation into the underground, (a contention not borne out by the defendants' own evidence), then but a slight amount of water would be required to satisfy this percolation, and clearly, none would be wasted. The required releases would be correspondingly reduced. If, as the evidence shows, there is substantial percolation, the legal rights of underground users will be satisfied, as they must be, and as the Secretary of the Interior has stated they will be.
The court, however, is not satisfied that there should be 14 dams built at this time. All of the parties agreed to one thing which is quite obvious that there are drastic hydrological changes taking place and will take place by reason of the alteration of the regime of natural conditions of the rivers by the construction of the Central Valley and Friant projects. And while such fact is certainly no reason for making these plaintiffs and their class suffer the loss of water during the experimental or changing period, it is of sufficient consequence that the court is justified in using caution in the extent of the physical solution imposed if, in the meanwhile, the rights of plaintiffs and their class can be protected.
Before proceeding further, some additional observations should be made concerning the evidence of contribution to groundwater by the San Joaquin river. In doing so, the court is taking into consideration all the evidence in the whole case, and after carefully weighing it, bases its conclusions on the preponderance of the whole evidence.
Upstream from the general area of Herndon, especially to the south of the river, percolation beyond the bluffs occurs principally in the confined aquifers formed by former beds of the river; in that area the aquifers do not have their point of contact with the water of the river at right angles to the river, but upstream from where water is produced by wells, and such aquifers follow the general southwesterly direction of the present bed of the river; such aquifers are confined, but not absolutely so, and the depth to them from the surface increases as the distance from the river increases so that in the vicinity of the City of Fresno, they are the aquifers from which water is produced from the *172 deep wells in that area; the wells in the area upstream from Herndon produce from aquifers at various depths; overlying such deep aquifers is a shallow water table which is caused by drainage of ephemeral creeks having their source in the foothills, by rainfall, by the application of water on lands served by the Fresno Irrigation District, as well as by some percolation from the San Joaquin river; very little water in the shallow water table seeps to and enters the deep confined aquifers which are supplied and replenished by the San Joaquin river.
In the area of the alluvial cone below an approximate point between the 225 and the 250 foot surface contour elevations(the vicinity of Biola)the type of the deep-lying aquifers changes from those formed by former beds of the river to aquifers which exist more or less in layers, with impervious strata above the aquifers, caused, no doubt, by the fact that the alluvial material composing them was laid down in a lake or body of water instead of on land. Such aquifers do extend westerly to the limits of the alluvial cone of the San Joaquin river, and underlie the greater portion, if not all, of the area of the Tranquillity Irrigation District; such aquifers have their head or intake in the vicinity of the area between the 225 and the 250 foot surface contour elevations, and dams built above those elevations, with a sufficient flow of the river, would supply and replenish such aquifers. The contribution from the San Joaquin river to the shallow or free water table in the area downstream from those surface elevations is greater than it is in the area upstream from those elevations, but there is little draft upon that upper water table in the lower area, and the water is of poorer quality than that from the deep aquifers. To supply that upper water table, the dams downstream from the general vicinity of Skaggs Bridge would cause ponds with large surface areas which, in turn, would result in a large amount of evaporation, which is a form of waste to be avoided as much as possible, and at the same time protect the prior vested rights.
In the early part of 1953, after one of several inspections of the river in company with counsel, the court suggested that in view of ponding operations conducted by Sand and Gravel Companies operating at a few places in the bed of the river, the functions which might be performed by building collapsible dams in the same places were possibly being performed at this time at a few places, by those operations. But none of the parties saw fit to introduce any evidence in relation to such matters, or advise the court of their views as to whether or not dams could be dispensed with while such sand and gravel operations, with consequent ponding, continue in the bed of the river.
While the court would be justified, under the evidence, in directing a judgment for conditional injunction requiring all 14 dams proposed by the plaintiffs, nevertheless, in view of all the foregoing and the fact that under the California cases this court must retain continuing jurisdiction for the purposes of making modifications or additions to the judgment, or further orders, as experience may require,Meridian, Ltd. v. City and County of San Francisco, supra, 13 Cal. 2d at page 496, 90 P.2d 537, 91 P.2d 105; City of Lodi v. East Bay Municipal Utility District, supra, 7 Cal.2d at page 347, 60 P.2d 439; State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, at page 671, 65 S.Ct. 1332, 89 L.Ed. 1815 it appears to the court that water would be physically available to supply the rights of plaintiffs and their class, regardless of the nature of taking, or whether the water table is free or confined, and regardless of the nature of the aquifers, if at this time either five or six dams of the type proposed by plaintiffs were constructed above Herndon, and either one or two such dams were constructed below Herndon and above Skaggs Bridge, with sufficient water released from Friant to have a constant minimum flow of five second-feet over *173 the lowest downstream dam and at Gravelly Ford, and with three or less scouring releases each year. The river bed in the vicinity of Friant is at elevation 400 feet above sea level; at Gravelly Ford it is 190 feet, a 210 foot drop in the 37 meandering miles of the river. At Mendota the elevation of the river bed is 160 feet. With large flood flows of the river in its natural state of from 6,000 to 10,000 or more second-feet, the force and pressure of that volume of water put considerable water into the adjacent underground regardless of the nature of the aquifers. The flushing flows proposed by the plaintiffs, while not of the quantity which prevailed in the stream before the operation of Friant, are in such reasonable amounts as will, in addition to the flushing and scouring purposes, force water into the underground. Experience may demonstrate that the releases required for flood purposes in the ordinary operation of the dam may be larger than the plaintiffs propose for the three scouring releases, or may demonstrate that the amounts could be less.
During the trial, the defendants refused to concede any merit at all to the plaintiffs' plan of physical solution. It was suggested, however, by the defendants' witness, Mr. Hill, that if the government were to build collapsible dams of the general type proposed by the plaintiffs, he would recommend some differences in design and construction. The same witness also suggested the possible necessity for some dams at some of the same locations proposed by the plaintiffs. The parties now have the views of the court concerning the extent, area, and nature of percolation of water from the San Joaquin river, and the general plan of physical solution. The general plan herein suggested would no doubt require some channel rectification and realignment below the lowest dam, and might require the change-over from river pumps to wells below the lowest dam. While there did not seem to be much difference of opinion as to the possible locations of several of the dams, it is quite possible that in light of the views herein expressed, the parties may desire to suggest different locations and more desirable designs.
Before directing a conditional decree requiring a specific number of dams at specific locations, the court would like the views of the various parties, expressed evidentiary-wise, as to such matters. Undoubtedly there are engineering details and other matters of location and the like which may be agreed upon in light of the general plan of physical solution indicated herein. Accordingly, the matter will be set down for further hearing on such limited subjects only, to which the parties may appear and present evidence if they so desire. If not, the court will proceed to a conclusion on the evidence before it, and require what it considers the proper number and location of dams of the type proposed by the plaintiffs.
If all 14 dams were constructed as proposed by plaintiffs, the total initial cost would be less than one-fifth of one percent of the amount expended to date on the Central Valley Project. The cost of the eight dams indicated herein, if eight are required after further hearing, would be about half that, or about one-tenth of one percent of the total amount expended to date on the Central Valley Project. The expenditure of that amount of moneywhich would ultimately be charged to, and paid by, water users of the defendant districts, as the matter now appearsis certainly not unreasonable.
This is particularly so in view of several other facts. It must be remembered that the water taken by way of Madera and Friant-Kern canals to the Irrigation Districts served by each of those canals is supplemental to the water supply which they already have. And a part of the plan of taking water from the San Joaquin river by way of these canals is to divert the water and put it upon lands of the Irrigation Districts other than during the crop growing season, with the idea that it will percolate to the underground and make a reserve to be taken *174 by wells during dry years. However, the testimony of the government witness in this respect does not bear out this assumption. The lands served by the Irrigation Districts with water from Friant-Kern canal are at a comparatively high elevation to the lands in the floor of the valley. Water placed upon the lands in the districts will percolate some, but after doing so, according to the testimony of the witness, will flow on beyond the boundary of the Irrigation Districts into the area of the valley where water is being taken by pumps, and thus the water taken from the plaintiffs here, and put upon the lands of the defendant Districts, would ultimately find its way to pumps of irrigators who would pay nothing at all for it. Furthermore, the Delta-Mendota canal was built at a cost of between $60,000,000 and $80,000,000 to bring water from the Sacramento river and put it upon the lands below Mendota in order that water which has flowed past and watered plaintiffs' lands from time immemorial might be stored and diverted at Friant for the benefit of defendant districts.
The government in its brief argues that, inasmuch as the plaintiffs' plan of physical solution is not included in the Feasibility report, to decree a physical solution would be in contravention of the Acts of Congress. There is nothing to that point. The Acts of Congress require compliance with the basic Reclamation Act, which in turn, requires compliance with the laws of the State of California. And under the laws of the State of California, the plaintiffs are entitled to a declaratory judgment of their rights, and an injunction enforcing them, conditioned upon a reasonable physical solution. The Feasibility report is not intended to be a minute engineering set of specifications and blueprints, making no allowance for changes which are trivial, such as here, compared to the whole project.
As a matter of fact, many features have been constructed which are different than set forth in the Feasibility report; the dam is 320 feet high instead of 250; the storage capacity is 520,000 acre-feet instead of 400,000 acre-feet; the San Joaquin river pumping system was not constructed at all, but the Delta-Mendota canal. And none of the changes are found in any amendment or supplement to the Feasibility report. All of which, according to plaintiffs' counsel, renders the operation of the Friant project illegal; but the court expresses no opinion on that contended ground of illegality, as it is not necessary to do so.
Furthermore, the Secretary of the Interior stated in the letter of March 23, 1953 (FN 104, page 217), that the Department of the Interior will "if necessary, construct check dams," and this statement was made without being limited to the plan of physical solution proposed by the defendant officials. This statement of the Secretary of the Interior also indicates that no additional appropriations will be required to be secured from Congress for the construction of such check dams. Moreover, Congress having required by repeated enactments of the provisions of the Reclamation Acts making State laws control as to water rights, and the law of California requiring a physical solution at the expense of an appropriator or would-be appropriator, it is not to be presumed that Congress will not exercise good faith, and will fail to make appropriations if any such are necessary. Great Falls Mfg. Co. v. Attorney General, 1888, 124 U.S. 581, at page 599, 8 S.Ct. 631, 31 L.Ed. 527; Gibbons v. United States, 1868, 8 Wall. 269, 274, 19 L.Ed. 453.
A decree of physical solution which will provide all the lands in the alluvial cone with all the water needed at any given point of time for their reasonable and beneficial uses by reasonable methods of diversion and use, provides all the protection to which the water rights within that area are entitled under California law, which law permits continuing jurisdiction of the court to take care of future needs measured by the same standards. When such a decree is effectuated, there is thereafter no right on the part of anyone in the *175 area so protected by the physical solution, to object to the impoundment and diversion of water not needed to satisfy such physical solution.[106] Under principles of California water law, the effectuation of such a decree will thereafter as effectively bind those for whose benefit the decree is made, as does the entry of the decree under the principles of virtual representation.
A decree of the character herein indicated would certainly "have a tendency to promote peace, protect the rights of all parties, prevent further and unnecessary litigation, and substantially reach the ends of justice, without any material injury to either of the respective parties. The endless complications that have arisen in this case, the exigencies and necessities of the parties, as well as the number of parties involved, justify this court in adopting this rule." Union Mill & Mining Co. v. Dangberg, C.C.D.Nev. 1897, 81 F. 73, at page 121.
XIX.
Injunctive Relief Against United States.
The plaintiffs being entitled to a declaratory judgment of their rights as against the defendants, including the United States, it is urged that a decree of injunction will not run against the United States under the terms of the waiver of sovereign immunity contained in 43 U.S.C.A. § 666.
Water rights are invariably adjudicated in equitable proceedings, whether by way of suit to quiet title, which is a development of the bill of peace, or by declaratory relief, or otherwise. Extraordinary writs, which act in personam, are usually the only means of enforcement of the decrees of equity. Writs of injunction are invariably the means of enforcement of decrees in equity in water rights cases.
Consent to sue the United States at law for damages involving water rights has existed since the passage of the Tucker Act in 1887, 24 Stat. 505, and, if such damages sounded in tort, since the Tort Claims Act of 1946, 60 Stat. 842. The only sovereign immunity which had not been waived in relation to water rights prior to the passage of Section 666 of Title 43 United States Code Annotated, was the immunity of the United States in equity suits to equity decrees, with the traditional power of injunction to enforce them.
If there could have been any possible doubt about the intention of Congress to make the United States amenable to the decrees usually entered in equity suits in water rights litigation, it is dispelled by the plain language of the statute, especially that portion which states: "The United States, when a party * * shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances".
It could not be doubted that if a private person or privately owned corporation had built the Friant project and works, he or it could be subjected to the injunctive processes for the enforcement of the decrees of a court of equity. Furthermore, an injunction against the United States as a sovereign is no different than the injunctions which have in the past been framed by the Supreme Court against sovereign states, of which State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589-616 et seq., 65 S.Ct. 1332, 89 L.Ed 1815, is an example.
Of course, the United States is a sovereign union of sovereign states; and it exercises its governmental powers through three departments, the executive, the legislative and the judicial; and of course, an injunctive decree will not operate upon either the judicial or the legislative branches of the government, but will expend itself upon the United States as the United States acts, through those officials in the executive department, *176 in depriving the plaintiffs and their class of water.
It must also be recalled that the statute gave consent to sue the United States, not only in a suit for the adjudication of water rights, but also in a suit for the administration of such rights. Suits in California are for both purposes, as is this one. How an effective judgment for either adjudication or administration of water rights can be made without compulsory or prohibitory orders of some kind has not been suggested by counsel, and quite a few years at the bar have revealed none to the author of this opinion.
To hold that the statute gave no power of enforcement for any judgment, decree, or order, by the use of injunctive process, would be to make the statute a dead letter.
XX.
Tranquillity Irrigation District.
Tranquillity filed a Complaint in Intervention. As finally amended and supplemented, it is in three separately stated causes of action. The first cause of action claims underground percolating rights from the San Joaquin river; the second, an adjudicated right of 12 percent of the entire natural flow of the river, measured at Whitehouse gauging station, in excess of 1,360 second-feet as said river would in the course of nature flow down the San Joaquin river past said Whitehouse gauging station; and the third is for declaratory relief.
The first cause of action, in the Complaint in Intervention, corresponds to the cause of action in the original Complaint filed in this action, to which Tranquillity, by amendment, became a named plaintiff. Tranquillity, being a corporation, binds all its members as such named plaintiff even though, as hereinbefore held, its members are bound in so far as they are members of the class. Under the evidence and the law, as heretofore indicated, the percolating water rights of Tranquillity and its members, involved in its first cause of action in the Complaint in Intervention, are covered by what has heretofore been said as to the rights of plaintiffs and their class, and will be protected by the decree of physical solution to be formed as indicated, on plaintiffs' complaint as amended and supplemented.
What has heretofore been said with relation to the various questions of jurisdiction, and water rights under California law, and other matters, applies with equal force to the second and third causes of action of Tranquillity.
The second cause of action of Tranquillity, for a declaratory judgment to the effect that it is entitled to 12 percent of the entire natural flow of the San Joaquin river in excess of 1,360 second-feet at Whitehouse, is based, not only on final adjudication to that effect by the California courts, but also on a contract (Exhibit No. 271) dated the 1st day of May, 1933, whereby that right is acknowledged and agreed to by Miller and Lux and its subsidiaries which were parties to the Purchase and Exchange contracts with the United States. The burdens of such adjudications and of the contract of May 1, 1933, were necessarily accepted by the United States when it entered into the Miller and Lux Purchase and Exchange contracts.
Tranquillity is entitled to a judgment declaring its rights, as alleged in its second cause of action, to 12 percent in excess of 1,360 second-feet of the full natural flow at Whitehouse, and will be irreparably injured if it does not receive that amount of water. The water for supplying that right can be provided by a physical solution by supplying the water from the Delta-Mendota canal more consistently with the provisions of the 1928 California Constitutional amendment for reasonable and beneficial uses and California Law than by requiring the full and entire natural flow of the river past Whitehouse in order to supply the 12 percent in excess of 1,360 *177 second-foot flow.[107] The method of calculating the amount of water as testified to by the defendant Sullivan is the proper one, under the decrees and the 1933 contract, except that no deduction should be made from the full natural flow for evaporation from Millerton lake.
The third cause of action is also for declaratory relief, but the only relief to which Tranquillity would be entitled under it, which is not otherwise covered, is a declaratory judgment that under the County of Origin law and Watershed of Origin law of California, Tranquillity is entitled to the water it needs from the San Joaquin river before any is diverted into the Friant-Kern canal for use beyond the watershed and county of origin, and an injunction enforcing such right. From what has heretofore been said under the heading "Watershed and County of Origin Statutes," the contentions of Tranquillity in this respect are clearly right, and it is unnecessary to repeat them. It is also unnecessary to repeat the provisions of the Feasibility Report, or the many other reports to Congress by the Department of the Interior, wherein assurances were given that needed water would not be taken from developed areas to carry out the Central Valley Project.
Tranquillity was a developed area for many years prior to the conception of the Central Valley Project, and all of the water which it uses and has used is, and has been, put to reasonable and beneficial uses by reasonable methods of diversion and use.
Tranquillity is entitled to a declaratory decree to the effect that it is entitled, as a matter of prior right, at the cost of not more than Class I water, to all of the water reasonably required to supply its reasonable and beneficial needs, before the defendants, or any of them, are entitled to take any water of the San Joaquin river out of the watershed or county of origin by way of the Friant-Kern canal.
Here, again, difficulties arise in the formulation of any decree for any definite amount of water. In addition to the difficulty of drawing any decree which is flexible enough to comply with the Constitutional amendment of 1928, and at the same time rigid enough to protect the rights of Tranquillity, complexities arise when the source of supply of water for Tranquillity is considered. In the past, it has taken water from deep wells the decree of physical solution is intended to protect that supply. Its other source of supply has been the Fresno Slough, which is riparian to the San Joaquin river and also riparian to the Kings river. Turner v. James Canal Co., 1909, 155 Cal. 82, at page 91, 99 P. 520, 22 L.R.A.,N.S., 401; Miller & Lux v. Enterprise Canal & Land Co., 1915, 169 Cal. 415, 421, 147 P. 567; Herminghaus v. Southern California Edison Co., 1926, 200 Cal. 81, at page 92, 252 P. 607. In some years in the past it has taken more water from the San Joaquin river than from the Kings, and in other years it has taken more from the Kings river. It has rights of some nature in the Kings river water, but those rights were not litigated herein. In the past several years it has received water from the Delta-Mendota canal by temporary contract with the Bureau of Reclamation. Pine Flat dam has now been built on the Kings river and only comparatively recently has been put in operation. Whether Tranquillity's rights to Kings river water, with Pine Flat dam in operation, will produce a sufficient amount of water in the future that the District will not need water from the Delta-Mendota canal, in addition to its 12 percent above-mentioned, is not clear from the evidence.
The estimate of the demand for, and the amount of, water available from Friant for all purposes are made in the early part of the year. It is understood that such estimates are likewise made as to the probable demands and capabilities of fulfilling them from the Kings river. *178 That being so, the decree in this respect can be flexible, and still protect the District's rights under the Watershed and County of Origin Statutes, as well as be in compliance with the Feasibility report, the various Acts of Congress, and the California Constitution and Laws, if it provides substantially as follows: When it appears, at the time of the estimate of each year's supply from the San Joaquin and from Kings river, that the total sum of water which will be supplied by the 12 percent in excess of 1,360 second-feet of the San Joaquin (measured at Whitehouse) added to the sum which is estimated to be supplied by the Kings river, added to the sum which is estimated to be supplied by the wells of Tranquillity, is not sufficient to meet the reasonable demands for crops of the crop pattern of the preceding year, on the basis of the needs for each crop as testified to by the witness, Lee, then Tranquillity will be entitled to have the defendants enjoined and restrained from taking, by way of the Friant-Kern canal, out of the watershed and county of origin; that amount of water which, in addition to the three sources of water above-described, would be required to satisfy the above-described needs for such crops, unless and until the defendants make available to Tranquillity for the current year substitute water, by way of the Delta-Mendota canal or otherwise, of the same quality as its present water supply, and at a rate not to exceed that then currently charged for Class I water for irrigation from Millerton lake.
XXI.
City of Fresno.
(a)Complaint in Intervention.
(b)Ancillary Proceedings.
While the Complaint in Intervention of the City of Fresno, as finally amended and supplemented, is in three causes of action, there are only two basic sets of rights asserted, viz.:
First, the vested rights of the City of Fresno to have its underground water supply sustained and replenished by the San Joaquin river; and
Second, such litigable rights, if any, as derive to the City of Fresno from its filed applications to appropriate surplus water of the San Joaquin river at Friant dam as against the United States as the present holder of assigned applications to appropriate surplus water of the San Joaquin river. This set of rights will be called "application" rights, for the sake of convenience.
The first set of rights is the subject of the first cause of action of the Complaint in Intervention, and declaratory relief as to such rights is sought, along with other relief, in the first and third causes of action in the Complaint in Intervention. Such rights are the overlying rights of the City of Fresno, and appropriative-prescriptive rights to the use of underground water. What was said with relation to the rights of plaintiffs and their class is equally applicable to all such rights of the City of Fresno. They are vested property rights to the use of water. Such rights are entitled to invoke judicial protection as soon as irreparable injury is threatened or as soon as they are actually invaded. As heretofore noted, these vested rights to water to which the City of Fresno was and is entitled, have been invaded by the defendants by impounding and diverting water at Friant, as hereinbefore set forth. It is hence unnecessary to treat further that set of rights as they will be protected by the decree of injunction conditioned upon the physical solution which the Court has indicated should be made in this case.
It follows that what is hereafter said as to the exhaustion of administrative remedies in connection with applications to appropriate water has no application to any of the riparian, overlying, or appropriative-prescriptive rights of plaintiffs and their class, including the City of Fresno, which rights exist independent of any rights which may be derived from applications to appropriate water *179 filed under the statutory procedure set forth in the Water Code of California.
The asserted "application" rights are described in the second cause of action of the Complaint in Intervention of the City of Fresno, and declaratory relief as to such rights is sought therein and in the third cause of action of the Complaint in Intervention.
By the applications to appropriate water, the City of Fresno is not seeking the protection of a vested property right such as its prescriptive, or appropriative, or overlying right, but is seeking to obtain a future right to the use of water, as is the United States by the applications which have been assigned to it. The conflict is solely one of priority of right under the law of California.
Applications by various organizations and entities to appropriate water at Friant have been on file with the State for many years. All, except those filed by the City of Fresno and one filed by the Fresno Irrigation District, have been assigned to the United States. Pertinent data as to all of them are set forth in Footnote 108.
*180 Although the applications of all parties had been pending since from 1916 to 1938, as heretofore noted, no hearing was ever called or set by the State on them until December 31, 1954 from 16 to 38 years after the applications were filed.[109]
Notwithstanding the requirements of the Federal Reclamation laws and the repeated assurances to Congress, and generally, that it would abide and respect California laws, the United States proceeded to build the dam and canals, store, divert and sell water of the San Joaquin river at and from Friant, without any permit or license to do so as required by the State laws. It constructed the Friant project, and conducted the operations thereof as if it were the absolute owner of the water and the right to use it which it is not, and has never been.
Neither the United States nor the City of Fresno nor the Fresno Irrigation District have any rights to impound or divert water from the San Joaquin river at Friant under the California Water law until a permit is granted. Without obtaining such permits to appropriate water, an applicant cannot acquire valid rights to appropriate water of the San Joaquin river.[110]
At the time the Court granted the Motion of the City of Fresno to file its Complaint in Intervention containing the cause of action concerning the relative priority of its applications to appropriate water as against those held by the United States, it was settled by the following cases that applicants to appropriate water had a litigable interest as to their relative priority, and could maintain an independent suit therefor before the granting of the permit or the hearing on an application:[111] Inyo Consolidated Water Co. v. Jess, 1911, 161 Cal. 516, 119 P. 934; Merritt v. City of Los Angeles, 1912, 162 Cal. 47, 120 P. 1064; Tulare Water Co. v. State Water Commission, 187 Cal. 533, 202 P. 874; Yuba River Power Co. v. Nevada Irrigation District, 1929, 207 Cal. 521, 279 P. 128; East Bay Municipal Utility District v. Department of Public Works, 1934, 1 Cal.2d 476, 35 P.2d 1027.
As heretofore noted, the evidence closed on December 31, 1954, and it was not until February 15, 1955, that the Supreme Court of California handed down its decision in Temescal Water Co. v. Department of Public Works, 44 Cal. 2d 90, 280 P.2d 1, wherein a different rule was announced than had theretofore prevailed as set forth in the above-mentioned cases.
Inyo Consolidated Water Co. v. Jess, supra and Merritt v. City of Los Angeles, supra, were decided before the State Water Commission Act of 1913.[112] Tulare Water Co. v. State Water Commission, supra, in 1921, was the first case which gave consideration to the 1913 Water Commission Act, and held certain sections of it void as an unconstitutional attempt by the Legislature to confer judicial powers upon a State Commission. It did not hold the whole Water Commission Act of 1913 unconstitutional, but did hold that the issuance of a permit upon the filing of an application was purely a ministerial act and enforceable by mandamus. Yuba *181 River Power Co. v. Nevada Irrigation District, supra, 1929, was the first case to reach the Supreme Court of California between two contesting applicants to appropriate water after the passage of the Water Commission Act. There, the Court followed its previous decision in Tulare Water Co. v. State Water Commission, supra, that the issuance of a permit was purely ministerial, and held that the question of whether or not there was water subject to appropriation is a judicial question, as well as holding, 207 Cal. at page 528, 279 P. at page 131, that "Priority among permittees is also a judicial question, whatever the stage of operations thereunder." East Bay Water Co. v. Department of Public Works, supra, 1934, 1 Cal.2d at page 481, 35 P.2d at page 1029, also approved the holding that issuance of a permit was purely ministerial and not reviewable by a court proceeding, and held that the State Agency "may not arbitrarily refuse the granting of the permit, but may be compelled by mandamus to issue it".
In the Temescal case, supra [44 Cal.2d 90, 280 P.2d 7], the Court did not expressly overrule the foregoing cases but reached a different conclusion as a result of the "cumulative effect of the statutory changes", not considered in any of the above-mentioned cases. The necessary effect of the decision in the Temescal case is to hold that all five of the above-mentioned cases are inapplicable under presently existing law, insofar as they held that the granting of a permit to appropriate water upon the filing of an application was purely a ministerial act. "When the reason for the rule ceases, so does the rule" is an axiom which must still prevail in the logic of the law. The reason for the rule in the Yuba River case, and similar cases, that priority among applicants to appropriate water could be litigated even before the issuance of a permit was that the granting of a permit by the State Engineer was a ministerial act not subject to judicial review, and the only way applicants could have their rights and priorities adjudicated was by an independent suit between them, either before or after the granting of a permit. The reason for the rule has ceased to exist by the holding in the Temescal case that the action of the State Engineer is not purely ministerial, but is the action of a State-wide agency involving a measure of discretion, which may culminate in an order which is subject to judicial review de novo under the provisions of Section 1094.5 of the California Code of Civil Procedure, and the further holding that the procedure set up in the Water Code for hearing applications, must be exhausted before that judicial review will lie.
Under the Temescal case, it is ultimately a judicial question as to whether or not facts exist which are prerequisite to the issuance of a permit, such as priorities of time, availability of surplus water, and the like, and judicial determination of those questions may be secured by appropriate review proceedings under California Code of Civil Procedure, Section 1094.5. The determination by the State Engineer as to the availability of surplus water, or other facts, concludes no right to a permit, but is a necessary determination of administrative facts which must be made by him before acting upon applications to appropriate water. Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, at page 103, 280 P.2d 1.
It would also appear from that decision that the Court adopted the approach taken in the Tulare case that "What is unappropriated water is a constantly fluctuating question, depending upon the seasonal flow of the stream, the annual rainfall, the forfeiture of prior appropriations, and default in the use of riparian rights", 187 Cal. 537, 202 P. 876, and stated that "A judicial determination as to existing and appropriative and riparian rights rests upon then present uses which may be quite different at a later time, and a determination as to the future availability of *182 water necessarily can be only an estimate." This makes it clear that, in addition to the review procedure provided by Section 1094.5 of the California Code of Civil Procedure, at any time in the future after the issuance of a permit, an independent judicial proceeding can be brought not only to enjoin an actual invasion of a prior right, but also to determine relative priority between those having permits to appropriate when there is insufficient water to supply all those holding permits, or when there arises a question as to the then beneficial and reasonable use, or questions as to the highest and best uses of water.
Counsel for the City of Fresno argues that the delay of the State Engineer in calling the hearing on the applications to appropriate water for almost 40 years after the first application was filed, and for more than seven years after this suit was filed, amounts to a denial of the administrative process, and entitles the City of Fresno to the declaratory judgment of this Court as to the amount of unappropriated water in the San Joaquin river at Friant and the priority as between applicants and the amount to which each is entitled, and to enforce the same by appropriate process. This contention is based on the line of cases of which Smith v. Illinois Bell Telephone Co., 1926, 270 U.S. 587, 46 S.Ct. 408, 70 L.Ed. 747, is typical. They are not applicable here insofar as the applications to appropriate water are concerned. As in that and similar cases where the rule of that case was applied, there was an actual taking of property of the plaintiff as a result of the failure to conduct the administrative proceedings, whereas here, neither the City of Fresno nor the United States has any property right as a result of the applications until a permit is actually granted. Furthermore, the State Engineer, as well as all the parties filing and holding applications, seem to regard all applications as valid and "in good standing" until a hearing is had and permit granted or denied; and no applicant is under the duty of attempting to force a hearing by a mandamus proceeding, or otherwise, and loses no rights by virtue of the failure to press for hearing. This seems to be a reasonable policy as there is no provision in the California law requiring a hearing in any set time. In fact, Section 1450 of the California Water Code indicates that an applicant is under no necessity to press for a hearing on an application, as it provides that any application properly made has priority of the date of filing it "until such application is approved or rejected." Furthermore, that policy is consistent with the requirements of the 1928 Constitutional amendment that all water shall at all times be put to a reasonable and beneficial use, and with the provisions of the Water Code, and the decisions of the California Supreme Court that only surplus water can be appropriated under the Water Code, and that water may become surplus by non-use. Thus one may file an application to appropriate water when there is no appropriable water, in the expectation, or the hope, that in the future such water may be available for appropriation, and when it is available, then will be plenty of time to hold a hearing, secure a permit, and make the financial commitments necessary to take advantage of the appropriation by the building of dams, et cetera.
It is also contended by counsel for the City of Fresno that the City is entitled to the relief it asks on its applications to appropriate water, and to have the hearings before the State Engineer permanently enjoined on the asserted ground that the hearings will be a "sham." One basis for this assertion is that an employee of the State Engineer testified in this case adversely to the contentions of the City of Fresno. This Court rejects the opinion testimony of that witness. It is not for this Court to presume that the hearing officers and the State Engineer will not faithfully discharge their duties. Specifically this Court will not presume that the State Engineer will not exercise his own judgment, *183 regardless of the opinions of an employee.
The other basis for this assertion by the City of Fresno is likewise not sufficient. It is grounded on contentions made by the Attorney General of California in the briefs, and from time to time during the trial, to the effect that the United States has authority to, and has taken, all the water which is necessary to operate Friant project. This does not appear to be the position of the attorneys for the State Engineer in the Division of Water Resources, and, as seen from what has heretofore been said, this contention is without merit. It appears to be the position of the State Engineer and the Attorneys in the California Division of Water Resources that, as this Court holds, the United States has no right to impound or divert water by appropriation until a permit is issued. And while the Attorney General of California apparently has the right and duty to appear in court in lawsuits wherein the State of California is a party, it does not appear that he has any control over the State Engineer in the exercise of that official's duties with relation to hearing and acting on applications to appropriate water. The State Engineer is bound under the law to act impartially, and this Court must presume that he will do so. Quite evidently the United States does not regard that it has acquired the rights to use the water of the San Joaquin river at Friant for project purposes, as urged by the California Attorney General, as it has filed amended applications to appropriate water, and is apparently prepared to pursue them to a conclusion. At the argument on the ancillary proceedings for the injunction pendente lite against the State Engineer, the Attorney General of California seemed to indicate a change of position, but just how far the change goes is not clear. That is not the first time that has occurred in this case. In any event, the position of the Attorney General, whether shifting or not, is not sufficient grounds to sustain the contention of the City of Fresno in this respect.
The Court concludes that under the Temescal case, the City of Fresno is not entitled in this proceeding to have a declaratory judgment on its second cause of action as to the administrative facts, Section 1375, California Water Code, required to be found by the State Engineer as a prerequisite to the issuance of a permit on the applications to appropriate water made by the City of Fresno and those now held by the United States.
Under the Temescal case, action by the State Engineer on those facts, as well as any discretionary decision made by him, which is claimed to be in error or an abuse of discretion, may be determined judicially by review de novo under California Code of Civil Procedure, Section 1094.5.
It follows from the foregoing that the injunction pendente lite issued in the ancillary proceedings brought by the City of Fresno and Tranquillity against the State Engineer and others, will be dissolved upon the entry of judgment in this case.
While the City of Fresno is not entitled, prior to action by the State Engineer, to have a declaratory adjudication of the administrative facts, upon which the State Engineer must act, such as those above-mentioned, it is nevertheless entitled, as between it and the United States, to a declaration of any rights which may exist under California law aside from any administrative facts or procedure, and irrespective of whether or not either the United States or the City of Fresno receives a permit to appropriate water, and irrespective of the terms and conditions of any permit.
All the applications now held by the United States are "subject to existing rights," as are all the applications of the City of Fresno. Any permits which will be issued will be subject to existing rights. It is the policy of the State Engineer not to delineate those rights, if indeed he would have the power to do so *184 under Tulare Water Co. v. State Water Commission, 187 Cal. 533, 202 P. 874, which held that judicial power could not be delegated to such non-judicial official or body, and which holding was not overturned by the Temescal case.
The query then is: Does the City of Fresno have any existing rights other than those elsewhere in this opinion set forth?
The United States can acquire rights to divert water by appropriation at Friant only under a permit. That is true also of the City of Fresno. But the City of Fresno, being a municipality furnishing water for domestic and municipal uses to its inhabitants, and being in the Watershed and County of Origin, is in a preferred position under the California Constitution and laws, to either the United States or any of the defendant districts. This is so by the terms of the Watershed and County of Origin Statutes and also by virtue of the Statutes of California declaring use of water for domestic and municipal purposes to be the highest and best use.
What is said under the heading "Watershed and County of Origin Statutes" is fully applicable here, and need not be repeated. The City of Fresno is in the County of origin and the Watershed of origin of the San Joaquin river. The Legislature in 1951 added Section 11128, specifically making the County and Watershed of Origin Statutes applicable to federally constructed units of the Central Valley Project.
The City of Fresno does furnish water to its inhabitants for domestic and municipal purposes, by its municipally owned water system.
The provisions of the Water Code declare the general State policy in Section 106[113] that the use of water for domestic purposes is the highest and best use, and in Section 106.5[114] that the rights of municipalities are to be protected to the extent necessary for existing and future uses. These are not sections which regulate only administrative action which might be taken by the State Engineer on applications to appropriate water, such as Section 1460 et seq. They are substantive law. Whether or not Section 1460 et seq. are abided by the State Engineer in the granting of a permit is not for this Court to say in advance, but may be determined upon review under California Code of Civil Procedure, Section 1094.5.
However, the general State policy set forth in the Watershed and County of Origin Statutes and the Statutes declaring domestic and municipal uses to be the highest and best uses, while binding upon the State Engineer, are nevertheless propositions of substantive law which govern the rights and obligations of the United States in its operation of Friant dam and diversionary works, regardless of the granting or denial of any permit, or any conditions which may be placed therein.
Under the evidence the City of Fresno is in pressing present need of an additional supply of water for domestic and municipal purposes; it is reaching the critical point. The United States and the defendant districts have no right to divert water at Friant which is presently needed by the City of Fresno for its domestic and municipal purposes and the City of Fresno is entitled. *185 to a declaratory judgment to that effect. But, under the evidence, the City of Fresno has not, as yet, enabled itself to receive any water from Friant; and, until it is in a position to take the water at a delivery point, it is entitled only to a declaration of its rights, but no decree to enforce them. The City of Fresno has constructed no diversionary or conduit works, and no reservoirs. While not presently in a position to enforce its rights, it is the conclusion of the Court that it is entitled to a declaratory judgment that its rights for domestic and municipal purposes are superior to any right of the United States to divert water beyond the watershed or county of origin, or of the defendant districts. If, as, and when the City of Fresno is in a position to take and receive the water, it will then be sufficient time to enforce that right by an appropriate decree under the provisions of Section 2202 of Title 28 United States Code.
The City of Fresno lies in a position of great natural advantage insofar as water is concerned; it is but a short distance from two rivers, the San Joaquin and the Kings, with a combined average annual flow of approximately 3,000,000 acre-feet. And yet, it is now in the anomalous position of being short of water to supply its inhabitants for the highest and best use, with the United States astride both rivers with gigantic dams exporting water to irrigation districts in counties and watersheds other than the San Joaquin and Kings, which water it used not as primary supply, but as a supplemental supply for irrigation and agricultural purposes, declared by California law to be secondary to the highest and best uses of municipalities for domestic purposes. Moreover, the water which is supplied to those districts by the Friant-Kern canal which, as heretofore stated, is not consumed by transpiration or evaporation, after percolating into the ground would seep to lands which are of lower elevation than the districts, and which lands pay no charge at all for this replenishment to their groundwater.
In the face of this great natural advantage and the advantages in the substantive law of California heretofore referred to, the City of Fresno finds itself confronted with a demand from the United States for the payment of $10 per acre-foot for water for domestic and municipal uses, while the United States is charging only $3.50 per acre-foot for Class I water (firm supply), and $1.50 per acre-foot for Class II water (that which is in addition to Class I water) to Irrigation Districts. In 1952, 1,343,000 acre-feet of Class II water was sold for $1.50 per acre-foot; in 1953, 309,000 acre-feet, and in 1954, 350,000 acre-feet. On the assumed operation of the project for 58 years, there would be 680,000 acre-feet of Class II water on the average per year, at $1.50 per acre-foot to replenish groundwater; but $10 per acre-foot is demanded to furnish drinking water and for other domestic uses.
If the United States can compel the City of Fresno to pay whatever charges it chooses, then it can do the same thing to every other City in California (and in the United States for that matter), after it has erected a dam and impounded the water of rivers adjacent to or near Cities, upon which the civilization and economy and the future of such Cities are founded.
The City of Fresno is entitled to a declaratory judgment that any charge for water which may be made by the United States should be reasonable. Reasonableness, in light of the facts and the Federal Reclamation Act and the Statutes of California, requires that such charges should be no more than the Irrigation Districts are charged from time to time for Class I water.
This is also consistent with the reports made by the Secretary of the Interior to Congress (Exhibit 136, at page 39) where it is stated that the County of Origin Statute of California is complied with, and only "surplus" water will be exported elsewhere.
The Federal Reclamation laws, the Constitution and the Statutes of California *186 were not intended to be "only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will."[115]
It is believed that the opinions and conclusions expressed herein prevent them from becoming just that.
The matters and issues raised by the parties, which are not specifically dealt with in this Opinion, are either unnecessary to decide or are disposed of by what is said.
The Clerk will put the within matter on the calendar for March 12, 1956, at 10 o'clock a. m., for the setting of a date when the parties may put on additional evidence which as indicated under the heading "Physical Solution" will be limited to the number and location of the dams on the river.
*187 Appendix "A"
Index of Cases Cited
Akin v. Spencer, 1937, 21 Cal.App.2d 325, 69 P.2d 430
Allen v. California W. & T. Co., 1946, 29 Cal.2d 466, 176 P.2d 8
Allen v. California W. & T. Co., 1949, 31 Cal.2d 104, 187 P.2d 393
Allen v. Railroad Commission etc., 1918, 179 Cal. 68, 175 P. 466, certiorari denied 249 U.S. 601, 39 S.Ct. 259
Alta Land & Water Co. v. Hancock, 1890, 85 Cal. 219, 24 P. 645
American Fire & Cas. Ins. Co. v. Finn, 1950, 341 U.S. 6, 71 S.Ct. 534
Ames v. State of Kansas, 1884, 111 U.S. 449, 4 S.Ct. 437
Anaheim Union Water Co. v. Fuller, 1907, 150 Cal. 327, 88 P. 978
Anaheim Water Co. v. Semi-Tropic Water Co., 1883, 64 Cal. 185, 30 P. 623
Baggs v. Martin, 1900, 179 U.S. 206, 21 S.Ct. 109
Ballou v. Inhabitants of Hopkinton, Mass.1855, 4 Gray 324, 328
Barney v. City of Baltimore, 1867, 6 Wall. 280, 73 U.S. 280
Barton v. Riverside Water Co., 1909, 155 Cal. 509, 101 P. 790
Bathgate v. Irvine, 1899, 126 Cal. 135, 58 P. 442
Beals v. City of Los Angeles, 1943, 23 Cal.2d 381, 144 P.2d 839
Beatty v. United States, 8 Cir., 1951, 191 F.2d 317
Biddle Boggs v. Merced Mining Co., 1859, 14 Cal. 279
Bloss v. Rahilly, 1940, 16 Cal.2d 70, 104 P.2d 1049
Bors v. Preston, 1884, 111 U.S. 252, 4 S.Ct. 407
Bowers, Inc., v. New York & Albany Lighterage Co., 1927, 273 U.S. 346, 47 S.Ct. 389
Bowles v. Strickland, 5 Cir., 1945, 151 F.2d 419
Boyce's Executors v. Grundy, 1830, 3 Pet. 210, 28 U.S. 210
Brady v. Daly, 2 Cir., 1899, 83 F. 1007; 175 U.S. 148, 20 S.Ct. 62
Burr v. Maclay Rancho Water Co., 1908, 154 Cal. 428, 98 P. 260
Burr v. Maclay Rancho Water Co., 1911, 160 Cal. 268, 116 P. 715
Butte County Water Users' Ass'n v. Railroad Commission etc., 1921, 185 Cal. 218, 196 P. 265
Cabot, Inc., v. Binney & Smith Co., D.C.N.J.1942, 46 F.Supp. 346
California Pastoral & Agricultural Co. v. Madera, etc., Co., 1914, 167 Cal. 78, 138 P. 718
California-Oregon Power Co. v. Beaver Portland Cement Co., 1935, 295 U.S. 142, 55 S.Ct. 725
Callanan, Petition of, D.C.E.D.Mich.1931, 51 F.2d 1067
Callison v. Mt. Shasta Power Co., 1923, 123 Cal.App. 247, 11 P.2d 60
Canadian Aviator, Ltd. v. United States, 1945, 324 U.S. 215, 65 S.Ct. 639
Carlsbad Mutual Water Co. v. San Luis Rey Devel. Co., 1947, 78 Cal.App.2d 900, 178 P.2d 844
Cary v. Curtis, 1945, 3 How. 236, 44 U.S. 236
Chalmers Chemical Co. v. Chadeloid Chemical Co., D.C.W.Va.1909, 175 F. 995
Charnock v. Higuerra, 1896, 111 Cal. 473, 44 P. 171
Chow, Gin S. v. City of Santa Barbara, 1933, 217 Cal. 673, 22 P.2d 5
Chowchilla Farms, Inc., v. Martin, 1933, 219 Cal. 1, 25 P.2d 435
*188 Churchill v. Lauer, 1890, 84 Cal. 233, 24 P. 107
City of Coronado v. City of San Diego, 1941, 48 Cal.App.2d 160, 119 P.2d 359
City of Lodi v. East Bay M. U. Dist., 1936, 7 Cal.2d 316, 60 P.2d 439
City of Los Angeles v. City of Glendale, 1943, 23 Cal.2d 68, 142 P.2d 289
City of Pasadena v. City of Alhambra, 1949, 33 Cal.2d 908, 207 P.2d 17
City of San Bernardino v. City of Riverside, 1921, 186 Cal. 7, 198 P. 784
City of San Diego v. Cuyamaca Water Co., 1930, 209 Cal. 105, 287 P. 475
City of Walla Walla v. Walla Walla Water Co., 1898, 172 U.S. 1, 19 S.Ct. 77
Clark v. Barnard, 1883, 108 U.S. 436, 2 S.Ct. 878
Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264, 19 U.S. 264
Collett, Ex parte, 1949, 337 U.S. 55, 69 S.Ct. 944
Collier v. Merced Irr. Dist., 1931, 213 Cal. 554, 2 P.2d 790
Commercial Cas. Ins. Co. v. Lawhead, 4 Cir., 1933, 62 F.2d 928, certiorari denied 289 U.S. 731, 53 S.Ct. 527
Conaway v. Yolo Water & Power Co., 1928, 204 Cal. 125, 266 P. 944
Connett v. City of Jerseyville, 7 Cir., 1938, 96 F.2d 392
Conrad Inv. Co. v. United States, 9 Cir., 1908, 161 F. 829
Contra Costa Water Co. v. City of Oakland, 1911, 159 Cal. 323, 113 P. 668
Cooper v. Reynolds, 1870, 10 Wall. 308, 77 U.S. 308
Cowell v. Armstrong, 1930, 210 Cal. 218, 290 P. 1036
Crane v. Stevinson, 1936, 5 Cal.2d 387, 54 P.2d 1100
Cummings v. City of Chicago, 1903, 188 U.S. 410, 23 S.Ct. 472
Curtis v. North American Indian, Inc., 9 Cir., 1922, 277 F. 909
Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956
Danforth v. United States, 1939, 308 U.S. 271, 60 S.Ct. 231
Dargel v. Henderson, Em.App.1952, 200 F.2d 564
Dickinson v. Burnham, 2 Cir., 1952, 197 F.2d 973, certiorari denied 344 U.S. 875, 73 S.Ct. 16
Dougherty v. Creary, 1866, 30 Cal. 290
East Bay M. U. Dist. v. Department of Public Works, 1934, 1 Cal.2d 476, 35 P.2d 1027
Eden Township Water District v. City of Hayward, 1933, 218 Cal. 634, 24 P.2d 492
Empire West Side Irr. Dist. v. Stratford Irr. Dist., 1937, 10 Cal.2d 376, 74 P.2d 248
Fallbrook cases, D.C., 101 F.Supp. 298; 108 F.Supp. 72; 109 F.Supp. 28; 110 F.Supp. 767
Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 1927, 202 Cal. 56, 259 P. 444
Faulkner v. Rondoni, 1894, 104 Cal. 140, 37 P. 883
Federal Housing Administration v. Burr, 1940, 309 U.S. 242, 60 S.Ct. 488
Federal Reserve Bank etc. v. Kalin, 4 Cir., 1935, 77 F.2d 50
Fellows v. City of Los Angeles, 1907, 151 Cal. 52, 90 P. 137
Ford & Son v. Little Falls Fibre Co., 1929, 280 U.S. 369, 50 S.Ct. 140
French v. Gapen, 1881, 105 U.S. 509
French v. Hay, 1847, 22 Wall. 238, 89 U.S. 238
Fresno Canal & Irr. Co. v. Park, 1900, 129 Cal. 437, 62 P. 87
Galbreath v. Metropolitan Trust Co., 10 Cir., 1943, 134 F.2d 569
Gardner v. State of New Jersey, 1947, 329 U.S. 565, 67 S.Ct. 467
Gibbons v. United States, 1868, 8 Wall. 269, 75 U.S. 269
Gila Valley Irr. Dist. v. United States, 9 Cir., 1941, 118 F.2d 507
Gold-Washing & Water Co. v. Keyes, 1877, 96 U.S. 199
*189 Goldwyn v. United Artists Corp., 3 Cir., 1940, 113 F.2d 703
Gould v. Eaton, 1896, 111 Cal. 639, 44 P. 319
Gravelly Ford Canal Co. v. Pope, etc., 1918, 36 Cal.App. 556, 178 P. 150
Great Falls Mfg. Co. v. Attorney General, 1880, 124 U.S. 581, 8 S.Ct. 631
Great Northern R. Co. v. Alexander, etc., 1918, 246 U.S. 276, 38 S.Ct. 237
Gunter v. Atlantic Coast Line Co., 1906, 200 U.S. 273, 26 S.Ct. 252
Hamlin v. Toledo, St. L. & K. C. R. Co., 6 Cir., 1897, 78 F. 664
Hans v. State of Louisiana, 1890, 134 U.S. 1, 10 S.Ct. 504
Hansberry v. Lee, 1940, 311 U.S. 32, 61 S.Ct. 115
Hargrave v. Cook, 1895, 108 Cal. 72, 41 P. 18
Heilbron v. Fowler Switch Canal Co., 1888, 75 Cal. 426, 17 P. 535
Helene Curtis Industries v. Sales Affiliates, D.C.S.D.N.Y.1952, 105 F.Supp. 886, 2 Cir., 199 F.2d 732
Herminghaus v. Southern California Edison Co., 1927, 200 Cal. 81, 252 P. 607, certiorari dismissed 275 U.S. 486, 48 S.Ct. 27
Hillside Water Co. v. City of Los Angeles, 1938, 10 Cal.2d 677, 76 P.2d 681
Holmes v. Snow Mountain W. & P. Co., 1918, 36 Cal.App. 394, 172 P. 178
Home Loan Bank Board v. Mallonee, 9 Cir., 1952, 196 F.2d 336, certiorari denied 345 U.S. 952, 73 S.Ct. 863
Houston & Texas Central R. Co. v. State of Texas, 1899, 177 U.S. 66, 20 S.Ct. 545
Hudson v. Dailey, 1909, 156 Cal. 617, 105 P. 748
Hurley v. Kincaid, 1932, 285 U.S. 95, 52 S.Ct. 267
Ickes v. Fox, 1937, 300 U.S. 82, 57 S.Ct. 412.
Insurance Co. v. Bailey, 1871, 13 Wall. 616, 80 U.S. 616
Inyo Consolidated Water Co. v. Jess, 1911, 161 Cal. 516, 119 P. 934
Juragua Iron Co. v. United States, 1909, 212 U.S. 297, 29 S.Ct. 385
Katz v. Walkinshaw, 1903, 141 Cal. 116, 70 P. 663, 74 P. 766
Keifer v. Reconstruction Finance Corp., 1939, 306 U.S. 381, 59 S.Ct. 516
Kilbourn v. Sunderland, 1889, 130 U.S. 505, 9 S.Ct. 594
Lakeside Ditch Co. v. Crane, 1889, 80 Cal. 181, 22 P. 76
Lamb v. California W. & T. Co., 1942, 21 Cal.2d 33, 129 P.2d 371
Larson v. Domestic & Foreign Commerce Corp., 1948, 337 U.S. 682, 69 S.Ct. 1457
Leavitt v. Lassen Irr. Co., 1909, 157 Cal. 82, 106 P. 404
Lewis v. Darling, 1853, 16 How. 1, 57 U.S. 1
Link v. Receivers of Seaboard Airline Ry. Co., 4 Cir., 1934, 73 F.2d 149
Logan v. Guichard, 1911, 159 Cal. 592, 114 P. 989
Lux v. Haggin, 1886, 69 Cal. 255, 4 P. 919, 10 P. 674
Lytle Creek Water Co. v. Perdew, 1884, 65 Cal. 447, 4 P. 426
Magruder v. Belle Forche Valley Water Users Assn., 8th Cir., 1914, 219 F. 72, 81.
Maguire v. Hibernia Sav. & Loan Society, 1944, 23 Cal.2d 719, 146 P.2d 673
Marin W. & P. Co. v. Town of Sausalito, 1914, 168 Cal. 587, 143 P. 767
Martin v. Western States G. & E. Co., 1935, 8 Cal.App.2d 226, 47 P.2d 522
Matthiessen v. Montecito County Water District, 1933, 217 Cal. 788, 22 P.2d 19
Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105
Merritt v. City of Los Angeles, 1912, 162 Cal. 47, 120 P. 1064
Miller v. Bay Cities Water Co., 1910, 157 Cal. 256, 107 P. 115
Miller v. Robertson, 1924, 266 U.S. 243, 45 S.Ct. 73
*190 Miller & Lux, Inc., v. Enterprise C. & L. Co., 1915, 169 Cal. 415, 147 P. 567
Miller & Lux, Inc., v. James, 1919, 180 Cal. 38, 179 P. 174
Miller & Lux, Inc., v. Madera C. & I. Co., 1909, 155 Cal. 59, 99 P. 502
Miller & Lux, Inc., v. San Joaquin L. & P. Corp., 1937, 8 Cal.2d 427, 65 P.2d 1289
Miller & Lux v. Worswick, 1922, 187 Cal. 674, 203 P. 999, certiorari denied 258 U.S. 625, 42 S.Ct. 382
Monroe v. United Carbon Co., 5 Cir., 1952, 196 F.2d 455
Montezuma Canal Co. v. Smithville Canal Co., 1910, 218 U.S. 371, 31 S.Ct. 67
Moore v. California Oregon Power Co., 1943, 22 Cal.2d 725, 140 P.2d 798
Moreno Mutual Irr. Co. v. Beaumont Irr. District, 1949, 94 Cal.App.2d 766, 211 P.2d 928
Morgan v. Walker, 1933, 217 Cal. 607, 20 P.2d 660
Mt. Shasta Power Co. v. McArthur, 1930, 109 Cal.App. 171, 292 P. 549
Mullaney v. Anderson, 1952, 342 U.S. 415, 72 S.Ct. 428
Munn v. State of Illinois, 1876, 94 U.S. 113
Nampa & Meridian Irr. Dist. v. Bond, 1925, 268 U.S. 50, 45 S.Ct. 383
Natoma Water & Mining Co. v. Hancock, 1894, 101 Cal. 42, 31 P. 112, 35 P. 334
N. L. R. B. v. Pittsburgh S. S. Co., 1951, 340 U.S. 498, 71 S.Ct. 453
New Orleans, M. & T. R. Co. v. State of Mississippi, 1880, 102 U.S. 135
Newport v. Temescal Water Co., 1906, 149 Cal. 531, 87 P. 372
Niles v. City of Los Angeles, 1899, 125 Cal. 572, 58 P. 190
Noonan v. Caledonia Gold Mining Co., 1887, 121 U.S. 393, 7 S.Ct. 911
O'Leary v. Herbert, 1936, 5 Cal.2d 416, 55 P.2d 834
Orchard v. Cecil F. White Ranches, 1950, 97 Cal.App.2d 35, 217 P.2d 143
Osborn v. President, etc., of Bank of United States, 1824, 9 Wheat. 738, 22 U.S. 738
Pabst v. Finmand, 1922, 190 Cal. 124, 211 P. 11
Pacific Live Stock Co. v. Hanley, 9 Cir., 1912, 200 F. 468
Pacific Live Stock Co. v. Lewis, 1916, 241 U.S. 440, 36 S.Ct. 637
Palmer v. Railroad Commission, etc., 1914, 167 Cal. 163, 138 P. 997
Parker v. Swett, 1922, 188 Cal. 474, 205 P. 1065
Patton v. Brady, 1902, 184 U.S. 608, 22 S.Ct. 493
Payette-Boise Water Users v. Cole, D.C., Idaho 1919, 263 F. 734
Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, 40 P.2d 486
Peake v. Harris, 1920, 48 Cal.App. 363, 192 P. 310
Peckwith v. Lavezzola, 1942, 50 Cal.App.2d 211, 122 P.2d 678
People v. Birch Securities, 1948, 86 Cal.App.2d 703, 196 P.2d 143, certiorari denied 336 U.S. 936, 69 S.Ct. 745
People v. Oakland Water Front Co., 1897, 118 Cal. 234, 50 P. 305
People of Puerto Rico v. Ramos, 1914, 232 U.S. 627, 34 S.Ct. 461
People of State of California v. United States, 9 Cir., 1950, 180 F.2d 596, certiorari denied 340 U.S. 826, 71 S.Ct. 61
Piccard v. Sperry Corporation, D.C.N.Y.1941, 36 F.Supp. 1006, affirmed 2 Cir., 120 F.2d 328
Pierce v. Superior Court of Los Angeles County, 1934, 1 Cal.2d 759, 37 P.2d 453
Piper v. Hawley, 1918, 179 Cal. 10, 175 P. 417
Pitt River Power Co. v. United States, 1942, 98 Ct.Cl. 253
Poinsett Lbr. & Mfg. Co. v. United States, 91 Ct.Cl. 264
Postal Telegraph Cable Co. v. State of Alabama, 1894, 155 U.S. 482, 15 S.Ct. 192
*191 Pyramid Land Co. v. Scott, 1921, 51 Cal.App. 634, 197 P. 398
Raabe, Glissman & Co., Inc., In re, D.C.N.Y.1947, 71 F.Supp. 678
Rancho Santa Margarita v. Vail, 1938, 11 Cal.2d 501, 81 P.2d 533
Rank v. Krug, D.C., 1950, 90 F.Supp. 773
Rank v. Krug, D.C., 1954, 16 F.R.D. 310
Reclamation District etc. v. Quigley, 1937, 8 Cal.2d 183, 64 P.2d 399
Rector v. United States, 8 Cir., 1927, 20 F.2d 845
Reid v. Gifford, Hopk, Ch. 419
Reed v. Oakdale Irrigation District, 1920, 46 Cal.App. 139, 188 P. 832
Safway Steel Products, Inc. v. Lefever, 1953, 117 Cal.App.2d 489, 256 P.2d 32
San Joaquin & Kings River Canal & Irrigation Co. v. Worswick, 1922, 187 Cal. 674, 203 P. 999, certiorari denied 258 U.S. 625, 42 S.Ct. 382
Scott v. Fruit Growers Supply Co., 1927, 202 Cal. 47, 258 P. 1095
Seneca C. G. M. Co. v. Great Western Power Co., 1930, 209 Cal. 206, 287 P. 93
Shapira v. United States, 1948, 335 U.S. 1, 68 S.Ct. 1375
Shields v. Barrow, 1854, 17 How. 129, 58 U.S. 129
Silves River, In re, D.C.Or.1912, 199 F. 495
Smith v. Swormstedt, 1853, 16 How. 288, 57 U.S. 288
Smith v. Illinois Bell Telephone Co., 1926, 270 U.S. 587, 46 S.Ct. 408
Snowden v. Ft. Lyon Canal Co., 8 Cir., 1916, 238 F. 495
Spring Valley Water Co. v. Alameda County, 1927, 88 Cal.App. 157, 263 P. 318
Spring Valley Water Co. v. City and County of San Francisco, 9 Cir., 1904, 165 F. 676
Standard Acc. Ins. Co. v. Miller, 7 Cir., 1948, 170 F.2d 495
Starin v. City of New York, 1883, 115 U.S. 248, 6 S.Ct. 28
Stark v. Payne, D.C.Mont.1921, 271 F. 477
State of California v. United States District Court, 9 Cir., 1954, 213 F.2d 818
State of Minnesota v. Northern Securities Co., 1902, 184 U.S. 199, 22 S.Ct. 308
State of Minnesota v. Northern Securities Co., 1904, 194 U.S. 48, 24 S.Ct. 598
State of Minnesota v. United States, 8 Cir., 1942, 125 F.2d 636
State of Minnesota v. United States, 8 Cir., 1939, 95 F.2d 468, affirmed 305 U.S. 382, 59 S.Ct. 292
State of Missouri v. Fiske, 1933, 290 U.S. 18, 54 S.Ct. 18
State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332
State of Tennessee v. Davis, 1879, 100 U.S. 257
State of Washington v. United States, 9 Cir., 1936, 87 F.2d 421
Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962
Stevens v. Oakdale Irrigation District, 1939, 13 Cal.2d 343, 90 P.2d 58
Stevinson v. San Joaquin & Kings River Canal & Irr. Co., 1912, 162 Cal. 141, 121 P. 398
Stevinson Water District v. Roduner, 1950, 36 Cal.2d 264, 223 P.2d 209
Stockman v. Riverside Land & Irr. Co., 1883, 64 Cal. 57, 28 P. 116
Supreme Tribe of Ben-Hur v. Cauble, 1921, 255 U.S. 356, 41 S.Ct. 338
Swift v. Black Panther Oil & Gas Co., 8 Cir., 1917, 244 F. 20
Temescal Water Co. v. Department of Public Works, 1955, 44 Cal.2d 90, 280 P.2d 1
Thayer v. California Development Co., 1912, 164 Cal. 117, 128 P. 21
*192 Thompson v. United States, 9 Cir., 1954, 215 F.2d 744
Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 1935, 3 Cal.2d 489, 45 P.2d 972
Tulare Water Co. v. State Water Commission, 1921, 187 Cal. 533, 202 P. 874
Turner v. East Side Canal & Irr. Co., 1915, 169 Cal. 652, 147 P. 579
Turner v. James Canal Co., 1909, 155 Cal. 82, 99 P. 520
Twenty-three (23) Tracts of Land v. United States, 6 Cir., 1949, 177 F.2d 967
Tyler v. Savage, 1892, 143 U.S. 79, 12 S.Ct. 340
Union Mill & Mining Co. v. Dangberg, 9 Cir., 1897, 81 F. 73
Union Pacific Ry. Co. v. Chicago Rock Island & Pacific Ry. Co., 1896, 163 U.S. 564, 16 S.Ct. 1173
United States v. Aetna Cas. & Surety Co., 1949, 338 U.S. 366, 70 S.Ct. 207
United States v. Angle, et alNo. 30 Equity, (N.D.Calif.)
United States v. State of Arizona, 1935, 295 U.S. 174, 55 S.Ct. 666
United States v. Association of American Railroads, D.C.Neb.1945, 4 F.R.D. 510
United States v. Buffalo Pitts Co., 1914, 234 U.S. 228, 34 S.Ct. 840
United States v. State of California, 1936, 297 U.S. 175, 56 S.Ct. 421
U. S. v. Coachella Valley etc., D.C.Cal., 1953, 111 F.Supp. 172
United States v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382
United States v. Gas & Oil Development Co., D.C.W.D.Wash.1954, 126 F.Supp. 840
United States v. Geisler, 7 Cir., 1949, 174 F.2d 992, certiorari denied 338 U.S. 861, 70 S.Ct. 103
United States v. Gerlach Live Stock Co., 1950, 339 U.S. 725, 70 S.Ct. 955
United States v. Great Falls Mfg. Co., 1884, 112 U.S. 645, 5 S.Ct. 306
United States v. Hooe, 1805, 3 Cranch 73, 7 U.S. 73
United States v. Kansas City Ins. Co., 1950, 339 U.S. 799, 70 S.Ct. 885
United States v. Louisiana, State of 1887, 123 U.S. 32, 8 S.Ct. 17
United States v. Lynah, 1902, 188 U.S. 445, 23 S.Ct. 349
United States v. McGowan, D.C.Wash.1931, 2 F.Supp. 426, affirmed 9 Cir., 62 F.2d 955, 290 U.S. 592, 54 S.Ct. 95
United States v. "Old Settlers," 1893, 148 U.S. 427, 13 S.Ct. 650
United States v. Reynolds, 3 Cir., 1951, 192 F.2d 987, certiorari granted 343 U.S. 918, 72 S.Ct. 678, reversed 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727
United States v. Rio Grande Dam & Irr. Co., 1898, 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136
United States v. Rogers, 8 Cir., 1919, 257 F. 397
United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659
United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767
United States v. United States District Court, 9 Cir., 1954, 206 F.2d 303
United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399
Upshur County v. Rich, 1890, 135 U.S. 467, 10 S.Ct. 651
Verdugo Canon Water Co. v. Verdugo, 1908, 152 Cal. 655, 93 P. 1021
Vineyard Land & Stock Co. v. Twin Falls S. R. L. & W. Co., 9 Cir., 1917 245 F. 9
Weston v. City Council etc., 1820, 2 Pet. 449, 27 U.S. 449
White-Smith Music Pub. Co. v. Apollo Co., 1908, 209 U.S. 1, 28 S.Ct. 319
Woods Bros. Const. Co. v. Yankton County, S.D., 8 Cir., 1931, 54 F.2d 304
Yuba River Power Co. v. Nevada Irr. District, 1929, 207 Cal. 521, 279 P. 128
*193 Appendix "B"
United States District Court Southern District of California Northern Division
Filed
Jan. 22, 1952
-----------------------------------------------
EVERETT G. RANK, et al., |
Plaintiffs, |
v. | No. 685-ND Civil
> Order
JULIUS A. KRUG, as Secretary of the Interior, |
et al., |
Defendants. |
-----------------------------------------------
A second pretrial conference having been held on January 15, 16 and 17, 1952, at Los Angeles, California, the Honorable Peirson M. Hall, District Judge, presiding, and all parties who have appeared herein being represented by their respective counsel, and plaintiffs having filed, in response to Paragraph 4 of the Order made herein December 20th, 1951, a map entitled, "Outline Map San Joaquin River Bottoms and Lands Neighboring the River in Madera and Fresno Counties," and said map having been introduced and marked "Plaintiffs' Exhibit 1-52-1," and a written statement setting out the method and character of proof as to certain matters, which statement was introduced and marked "Plaintiffs' Exhibit 1-52-2," and intervener State of California having presented a written statement and map entitled "Data on Lands Along San Joaquin River from Friant to Gravelly Ford Canal, Formerly Owned by Miller and Lux, Inc., Sold With Various Clauses of Water Rights Exceptions and Reservations in the Deeds and Land Sale Contracts," and said statement and map having been introduced and marked "Intervener's Exhibit 1-52-A," and the motions of City of Fresno, a municipal corporation, Tranquillity Irrigation District, an irrigation district, and Emil Schramm, for leave to file their respective complaints in intervention having been made and argued, and good cause appearing therefor,
Now, Therefore, It Is Ordered:
1. That said motions of City of Fresno, Tranquillity Irrigation District and Emil Schramm are ordered off calendar, to be re-set for further hearing upon notice and upon further order of the Court;
2. That pursuant to stipulation of the parties, Intervener's Exhibit 1-52-A is accepted as evidence of the matters which it purports to show, subject to exception, amendment or amplification pursuant to written statement filed by any party hereto on or before March 3, 1952;
3. That the trial of said cause will commence at Fresno, California, on January 29, 1952, and will thereafter continue on Tuesday, Wednesday, Thursday and Friday of each week, subject to such further order as the Court may make.
4. That said trial will be limited to and relate to the issues framed by the pleadings relating to claims of plaintiffs, and the class which they claim to represent having riparian rights or surface *194 diversion rights to take water from the main channel of the San Joaquin River only between Friant Dam and Gravelly Ford, and the claims of plaintiffs and the class which they claim to represent as to underground waters received from the main channel only of the San Joaquin River above its junction with Fresno Slough by the lands lying within the exterior limits of the lands described in Exhibit "C" of the Amendment to the Complaint filed July 26, 1951, or within the limits of the so-called alluvial cone or cones shown on Plaintiffs' Exhibit 1-52-1, whichever of said limits are farthest from the main channel of the San Joaquin River.
5. It is recognized that in the trial of a suit presenting legal and factual questions as complicated and varied as this one, other questions and issues and things not now capable of being foreseen or defined may arise and may be necessary to be decided; so the within Order is intended to be a general one and is not intended to be either all-inclusive or all-exclusive, except that any and all issues which are or are attempted to be raised by the pleadings herein on the following general subjects will not be tried at said trial commencing January 29, 1952, but are reserved for such later consideration, if any, by the Court as may be required in the interest of justice, viz.:
(a)-1. Claims to riparian or surface water rights on that stretch of the main channel of the San Joaquin River below the place called Gravelly Ford;
2. Claims relating to waters, whether surface or underground, of or from Fresno Slough;
(b) Claims relating to waters for commercial recreational uses;
(c) Claims relating to waters for sand or gravel pits;
(d) Claims relating to assessment of past damages;
(e) All claims raised or attempted to be raised by the pleadings herein or by the proposed complaints in intervention of the City of Fresno, Tranquillity Irrigation District and Emil Schramm, other than those set forth in Paragraph 4 of the within Order;
(f) Claims relative to water for industrial uses.
The within Order is made and the trial now set to commence on January 29, 1952, will be had without prejudice to a further determination as to whether or not any of the foregoing claims present issues in, or properly triable in, this case.
6. That counsel for each party or group of parties hereto shall file and serve not later than January 29, 1952, a statement in the nature of an opening statement of such parties' legal position as to the issues to be tried on January 29, 1952, which statement shall be supported by such authorities as counsel may deem applicable.
7. The order of proof at the trial will be:
(1) Evidence going to the determination of the area of lands to be included in the classes of rights mentioned in Paragraph 4 hereof;
(2) Evidence showing lands covered by either waivers of water rights or the water rights relating thereto now reposed for any reason in the United States;
(3) Evidence relating to plans for physical solution.
On Further Hearings as to Physical Solution.
[July 11, 1956.]
On March 12, 1956, upon hearing and after notice to all counsel and parties, the Court fixed May 22, 1956, at Fresno, as the time and place for further hearings concerning a physical solution as indicated in the Opinion filed February 7, 1956. A hearing in the nature of pre-trial, under Rule 16, Federal Rules of Civil Procedure, 28 U.S.C.A., was had on May 14, 1956, at Los Angeles, pursuant to an Order dated April 17, 1956, which, inter alia, provided:
"It Is Further Hereby Ordered and Directed that each of you shall, *195 on or before the close of business on the 9th day of May, 1956, serve by mail, or personally, each of the other above named attorneys and officials of the United States Bureau of Reclamation, and file with the above entitled court, a written statement showing: (1) the persons or parties to the within action for whom you are appearing; (2) the names of the witnesses which you expect to call at the hearing now set for May 22, 1956; (3) an estimate of the length of time required for the production of evidence expected to be produced by you; and (4) such plans, modification, or amendment, or substitution of plans for the physical solution proposed by the plaintiffs, which you may have which shall show the number, type, and location of collapsible check dams and the engineering details therefor, and/or such other physical work as is, or may be, proposed or deemed necessary to accomplish the general plan of physical solution indicated by the Court in the Opinion filed February 7, 1956."
A copy of that Order, as well as each Order fixing the hearings for March 12, 1956, and for May 22, 1956, was mailed to all counsel of record, and to: Herbert Brownell, Jr., The Attorney General of the United States; J. Lee Rankin, Assistant Attorney General of the United States, Office of Legal Counsel; Wm. H. Veeder, Special Assistant to the Attorney General of the United States; Laughlin E. Waters, United States Attorney, Southern District of California, Los Angeles, California; as well as to the following defendant officials of the United States: Clyde Spencer, Supervising Engineer, California Projects, U. S. Bureau of Reclamation, Regional Director of the U. S. Bureau of Reclamation, Region 2, U. S. Bureau of Reclamation, % U. S. Bureau of Reclamation, Sacramento, California; Martin Blote, Watermaster, U. S. Bureau of Reclamation, and Superintendent of Operations of the Central Valley Project, U. S. Bureau of Reclamation, % U. S. Bureau of Reclamation, Sacramento, California; and Edwin F. Sullivan, Operations Supervisor, U. S. Bureau of Reclamation, % U. S. Bureau of Reclamation, Fresno, California.
Neither the Attorney General of the United States, nor any Assistant or Special Assistant Attorney General of the United States, nor the United States Attorney, nor any Assistant United States Attorney, nor any of said defendant officials filed any statement in response to, or in compliance with, said Order, or any statement at all on behalf, or in the name, of the United States or said defendant United States officials or any of them; nor did they or any of them or any one else appear at any of the hearings on March 12, 1956, May 14, 1956, or May 22, 1956, for or on behalf of, or in the name of, the United States, or said defendant United States officials, or any of them.
Most of the defendant Districts filed statements in response to said Order of April 17, 1956, as did the intervenor, State of California, and the officials of the State of California who are defendants in the ancillary proceedings. All such statements indicated that no evidence would be offered at the hearing on May 22, 1956. The defendant Districts in their statements generally suggested that the number of dams to be constructed be held to a minimum and be constructed in the most economical manner.
The plaintiffs, and the plaintiff in intervention City of Fresno, and the plaintiff in intervention Tranquillity Irrigation District filed a written statement in response to said Order indicating that additional testimony would be produced.
At the hearing on May 22, 1956, no evidence was offered by any one except the plaintiffs. Their counsel put on evidence from which it appears that the water levels in the wells in the easterly end of the alluvial cone of the San Joaquin river and within the "Lee" lines had dropped as much as 100 feet since 1952 after the impoundment and diversion of water into both the Madera and Friant-Kern *196 canals, and that some wells, after deepening to bedrock, would only produce a portion of the quantity of water in gallons per minute which they had produced before. The evidence also showed that since 1952, crops and fruit trees had to be, and were, abandoned in that area because of the inability to produce water from wells which had theretofore produced sufficient water for crop and domestic uses, and that unless the water tables were restored, or a substitute water supply found, continuing and progressive abandonment of crops and orchards would result from lack of water.
The defendant Clyde E. Spencer was called to the witness stand by the plaintiffs, but his testimony was limited principally to confirming his duties and those of defendants Martin Blote and Edwin F. Sullivan to be as heretofore indicated by the Court in its Opinion filed February 7, 1956.
The defendant Edwin F. Sullivan was called to the witness stand by plaintiffs, and produced general statistical data concerning the flows of the San Joaquin and Kings rivers.
Plaintiffs also called to the witness stand Mr. Leland Hill, the principal expert of the defendants at the main trial of the case, who stated on the witness stand that on the basis of the conclusions set forth in the Court's Opinion filed February 7, 1956, he had no suggestions for changing the plaintiffs' plan of physical solution except that he did not, under any circumstances, feel that Dams No. 13 and No. 14 were necessary or useful, and that Dam No. 12 should be moved downstream about one-half river-mile so that, in addition to performing its functions as part of plaintiffs' plan of physical solution, it could also act as a weir to divert water into the Gravelly Ford canal, if, as and when the United States was required to do so.
The testimony of Mr. Hill on the main trial of the case suggested that if the government were to build the collapsible dams of the type proposed by the plaintiffs, there would likely be some differences in design and construction, but when asked on the May 22, 1956, hearings if he had any suggestions in that respect, he said that he had none.[116]
In the Opinion of February 7, 1956, and by the Order of April 17, 1956, the Court invited all of the defendants and those who might have any objection to plaintiffs' plan of physical solution to suggest modifications, but no suggested modifications, either as to number, type, or location of any dams were proposed by any of the parties, except the testimony of Mr. Hill as above referred to.
In the Opinion filed February 7, 1956, the Court, while indicating general approval of plaintiffs' plan of physical solution, suggested that all of the fourteen dams, as finally proposed in plaintiffs' amended plan of physical solution, should not be required at the present time as a conditional physical solution, and also indicated that, pending observation of the hydrological changes resulting in the area involved as a consequence of the alteration of the natural regimen of the river by the construction of Friant dam and the diversion of water, less than twelve dams, as originally proposed in plaintiffs' plan of physical solution, should be required at this time as a conditional physical solution "if, in the meanwhile, the rights of plaintiffs and their class can be protected."
From a further consideration of all of the evidence in the case, the *197 Court concludes that the rights of all parties will be best protected and served, reasonable and beneficial use by reasonable methods of diversion and use will be accomplished, and the Constitution and Laws, both of California and the United States, will be complied with by, and that the present minimum requirements for the protection of the rights of plaintiffs and their class require, a decree of injunction prohibiting the impoundment and diversion of waters of the San Joaquin river at Friant, except upon condition that the defendants, at their cost, shall provide a physical solution by the construction of a minimum of ten dams of the height, nature, and type of construction as proposed by the plaintiffs, and located as follows, viz.: Dams Nos. 1, 2, 3, 5, 7, 9, 10 and 11 to be at the sites proposed by plaintiffs; Dam No. 4 to be moved approximately one river-mile downstream from the site proposed by the plaintiffs; Dam No. 12 to be moved downstream to a point approximately one-half of a river-mile below the take-off of Gravelly Ford canal, and Dams No. 4 and No. 12 each raised to sufficient height that they will provide the same upstream impounding as if built at the site proposed by plaintiffs; the physical solution to further provide for the release of sufficient water from Friant as will permit a continuous flow of five cubic feet per second over the last downstream dam, and also for flushing releases as indicated in plaintiffs' plan of physical solution.
Dams Nos. 6 and 8, as proposed by the plaintiffs, are not now required for the reason that rock and gravel operations in the river bed, in the vicinity of each one, now result in the ponding of water. The ponding is not to the same extent as would occur if Dams Nos. 6 and 8 were built, but is sufficient to warrant the Court, in the exercise of caution, to refrain from ordering their construction at this time. If experience develops that the ponding resulting from the rock and gravel operations, together with the other requirements of the physical solution ordered, are not sufficient to satisfy the physical requirements for water for river pumpers or percolation, that will be sufficient time for the Court to give further consideration to their construction.
Dams Nos. 13 and 14 were proposed by plaintiffs to be downstream from Dam No. 12 at Gravelly Ford. The nature of the aquifers changes in the vicinity between Skaggs bridge and Gravelly Ford so that below the latter point on the river, from the present evidence in the case, the water percolating as a result of Dams Nos. 13 and 14 would not reach the aquifers in any substantial amount so as to supply the wells in that area. Whatever water would reach such wells as a result of Dams Nos. 13 and 14, would be more than offset by evaporation losses because of the flat nature of the banks and the shallowness of the water back of the dams, so that it would be an unreasonable method of diversion and use to presently require the construction of Dams Nos. 13 and 14 as part of the physical solution.
It is to be remembered that, under California law, there will be an open decree in this case, which will permit the equity powers of the court to be later invoked, if warranted under the facts.
The operation of the physical solution may require the services of some one in the nature of a Watermaster, such as was approved by the Supreme Court in Montezuma Canal Co. v. Smithville Canal Company, 1910, 218 U.S. 371, 31 S.Ct. 67, 54 L.Ed. 1074. But such designation need not be made now as the only variations from year to year in the operation of the plan will be in the date and amounts of scouring releases, and the time of raising the dam gates in the spring for ponding purposes, and lowering them in the fall or winter for flood release purposes. This can be more economically done, and with little inconvenience, if, after the dams are completed, a hearing is held, on motion of any party, and an order made on such matters in the spring of each year before *198 the irrigation season begins. By that time, the record of releases from Friant for flood or other purposes for the past winter will be available, to aid in determining the time and quantity of scouring releases, if any. Information concerning estimated water supply for the ensuing season will also be available, as will the crop plantings and pattern. Such hearing would probably take no more than one day, or even less. If such procedure should, in the future, prove too cumbersome, it will be time enough then to give consideration to the appointment of a Watermaster. Or it is possible that time may demonstrate the need for the formation of a Water District in connection with the operation of the physical solution.
The ponding created as a result of the dams will occur in the bed of the river, and will not raise the water above the level which would take place at a flow of 2,000 cubic feet per second. None of the dams so ordered will raise the water to such height as would cause any flooding or water logging of any lands whatsoever.
This plan will require a minimum of water, and will stabilize and define, as near as can be done at the present time, the rights of all the parties.
Counsel for the plaintiffs, at the hearing, urged that the radical changes in underground water in the easterly end of the alluvial cone, as above indicated, warranted the Court in requiring as a part of a physical solution the furnishing of a given quantity of water from the Friant-Kern canal, measured in acre-feet, directly to a small area of specifically described lands in the Garfield area. The evidence shows radical changes and a lowering in underground water throughout the San Joaquin cone resulting from the impoundment and diversion of water at Friant, and causing a great impingement upon prior vested rights. But the Court is of the view that, as a matter of law in this class action, an order for a physical solution should not be made in terms of delivery of a measured quantity of water to specifically described lands within the alluvial cone unless it is incidental to, and a consequence of, the satisfaction of the common rights to water from a common source, of all of the members of the class. The last above mentioned claim of the lands in the Garfield area is not of such incidental and consequential nature.
In addition to the authorities cited in the Opinion filed February 7, 1956, reference is made to the following cases to support the power of this Court to issue judgment in accordance with that Opinion and this Memorandum, to wit: Magruder v. Belle Forche Valley Water Users' Association, 8 Cir., 1914, 219 F. 72, at page 81; Nampa & Meridian Irr. Dist. v. Bond, 1925, 268 U.S. 50, 45 S.Ct. 383, 69 L.Ed. 843; Payette-Boise Water Users' Association v. Cole, D.C.Idaho 1919, 263 F. 734; United States v. Coachelle Valley, etc., D.C., 111 F.Supp. 172.
NOTES
[1] An acre-foot is that quantity of water which is sufficient to cover one acre of land with water one foot deep.
[2] A second-foot is one cubic foot of water going by a given point in one second.
[3] Twice during the trial the conduct of counsel compelled the court to declare a recess and threaten to vacate the trial to be reset later.
Approximately 30,000 pages of transcript accumulated during the trial. Over 70 witnesses testified on the merits; many of the experts covering weeks or months. Over 800 exhibits were admitted in evidence, many of them consisting of hundreds of pages of scientific and engineering data, as well as hundreds of sheets of maps, charts, graphs and tables.
The court interrogated all witnesses to the end that the court might understand the particular exhibit under discussion, or understand the testimony of the witness and its relation to the issues of the case.
[3a] A map has been compiled from various exhibits introduced in the case. The map covers all of the area involved. It shows the names and location of the rivers; the dams which are built and ultimately proposed; the lands of the defendant districts; the area of plaintiffs' lands; the lands which were involved in the Gerlach case hereinafter mentioned; the Friant-Kern canal; the Madera canal; the Delta-Mendota canal; Tulare lake; Buena Vista lake; the principal cities; and, the 500 foot surface contour elevation on the east side of the valley and on the west side of the valley. The map is reduced from a larger map drawn to scale.
[4] All parties introduced Tolman on "Groundwater." It is plaintiffs' Exhibit 68, Defendants' "P Districts N," California "Q". It defines an alluvial cone to be "A body of alluvial material deposited by a stream debouching from the region undergoing erosion above the apex of the cone." It is usually of a general triangular shape. The apex of the cone in this instance is Friant. Where rivers debouch from the same mountains close to each other, their cones sometimes more or less overlap.
[5] One government witness said two million years; others suggest as long as four million years.
[6] There is evidence that the river at one time had its main channel as far east as Sanger, and at another flowed directly through the area which is now the City of Fresno, and at another time as far north as the Fresno River.
[7] See Figure 139Tolman on "Groundwater," Exhibit 68.
[8] Defined by Tolman on "Groundwater" as "A geologic formation or structure that transmits water in sufficient quantity to supply pumping wells or springs."
[9] Figures 49, 11, and 13Tolman on "Groundwater," Exhibit 68.
[10] Figure 49Tolman on "Groundwater," Exhibit 68.
[11] Figure 139Exhibit 68.
[12] Figures 142, 143, 145Tolman on "Groundwater," Exhibit 68.
[13] Figure 49Tolman on "Groundwater," Exhibit 68.
[14] Figure 75Tolman on "Groundwater," Exhibit 68.
[15] Figure 76Tolman on "Groundwater," Exhibit 68.
[16] This order also required the installation of automatic water level recorders on 25 or more wells in the alluvial cone, the location of which were to be selected by agreement among the experts of the parties. This was done, and the results were introduced in evidence.
[17] The motion to join the United States was granted on September 18, 1954. Summons was duly issued and it and the complaints, intervention and otherwise, were duly served on the United States as required by Section 666 of Title 43, United States Code Annotated, and the Federal Rules of Civil Procedure, 28 U.S.C. Since then, all pleadings and notices have been so served on the United States.
[18] The Order of April 24, 1953, required that releases should not be made below 400 second-feet at Friant. After the Appellate Court refused the writ, releases were raised to more than twice that amount in a few days. The Court appointed an agent to supervise the flow, at the request of the government and the agreement to pay him, but payment was later refused by the government.
[19] The "Supplemental" Complaints of all three alleged the making of certain contracts by the defendant officials; but by denial of the motions, or by disclaimer, or by severance, they become immaterial to the issues here, and will not be further adverted to. The defendant officials answered the "Supplemental Complaints" but filed no answer or other responsive pleading or motion to dismiss to the "Amendment and Supplement to the Complaints."
[20] At a hearing on October 4, 1954, no appearance was made on behalf of the United States or any of the defendant officials. At that time the Court read into the record the text of Section 507 of Title 28 United States Code, relating to the duties of United States attorneys, and transmitted a copy of the transcript to the United States Attorney. Thereafter, on November 24, 1954, by letter, the Court again advised the United States Attorney for this District of a pre-trial hearing, and again called attention to the provision of the Statutes relating to the duties of United States Attorneys and the Attorney General. On December 29, 1954, there was filed in the case a copy of a teletype from J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel, to the United States Attorney of this District, advising that on September 7 he had been relieved in connection with the within case.
[21] The Pacific Gas & Electric Company and Consolidated Irrigation District are also named as parties, but Consolidated has filed a disclaimer, and the trial has been severed as to the Pacific Gas & Electric Company. The State of California is named as a defendant in the "Amendment and Supplement to Complaint" filed August 10, 1954. Whether it may be so joined without an order is disposed of under the heading "State of California."
[22] In the event injunctive relief and physical solution are denied, plaintiffs ask for inverse condemnation, but the case was not tried on that basis.
[23] Emphasis throughout is supplied unless otherwise noted.
[24] The removal occurred in 1947 before the 1948 revision of the Judicial Code. The then applicable provisions of 28 U.S. C.A. § 71 for removal are substantially the same as after the 1948 revision, now 28 U.S.C.A. § 1441(a).
[25] In Petition for Extraordinary Writ, No. 14244, filed by the United States 9 Cir., 213 F.2d 818, the prayer asks:
"1. Commanding the Respondent Honorable Peirson M. Hall, Judge, to vacate the order dated September 18, 1953, joining the United States of America in the injunctive proceeding against the subordinate officials of the Bureau of Reclamation;"
In Petition for Extraordinary Writ filed by the State of California, No. 14243, 9 Cir., 213 F.2d 818, Paragraph 4 of the prayer asks:
"(4) Directing the Respondent Court to vacate its order of September 18, 1953, joining the United States as a party-defendant in Rank v. Krug; to vacate its order of October 29, 1953, requiring the State to serve the United States of America as a defendant in the State's case in intervention in Rank v. Krug; and to vacate the orders of January 27, 1954, and January 30, 1954, requiring the United States of America to answer the Complaints in Intervention, including that of the State of California;"
[26] The general theme of the brief is a declamation of sorts about the invasion, by the judiciary, of the constitutional executive and legislative powers. Although not making the point in so many words, one might get the idea in reading it that its author thought S. 18, 43 U.S.C.A. § 666, to be unconstitutional.
[27] Report of Special Subcommittee, H.R. 1952, on hearings on Central Valley Project, Oct. 29, 30, 31, 1951 (Engle Report)
"Findings(a) That misleading information has been given to the Congress by the sponsors of the Central Valley project and Federal representatives regarding the supply of water necessary to operate, if present Sacramento Valley and Delta water rights claims are valid; (b) There has been an amazing lack of frankness, bordering on bad faith, in dealing with the Congress in view of the rapidly mounting uses of Sacramento River water since the construction of Shasta dam; (c) The project was apparently drifting into danger as far as water supplies are concerned, and State and Federal advocates failed to direct attention to this serious dilemma, or to take any action to halt the trend before serious difficulty was encountered. In fact, State and Federal representatives adopted a `drift and hope' policy with respect to project water supplies; (d) Both State of California representatives and Bureau of Reclamation employees have requested funds annually and failed to indicate to the Congress that there was any question about sufficient water to meet all needs which the initial project features were designed to serve, including uses along the Sacramento river."
[28] Engle Report, supra footnote 27.
"Finding(a) That the statements of policy with respect to the importation of surplus water from the Sacramento Valley made by the State of California, the original sponsors of the project, and subsequently repeated in a similar manner by Interior Department representatives, are certainly confusing, if not misleading."
[29] The recent decision of the California Supreme Court in the Temescal case, supra, raises a question as to whether the entire administrative procedure set up by the Water Code in Chapter 3, Division 2, is contrary to the California Constitution.
[30] Much is made by counsel of a statement contained in D.C., 90 F.Supp. 773, at page 801, as follows: "The defendants' counsel contend that the complaints do not state a cause of action for declaratory relief insofar as the contracts for the diversion of water are concerned. In this respect they are correct. The United States is not a party to the suit, and is not indispensable to the relief otherwise sought in the suit, as elsewhere herein appears."
This statement is misconstrued by counsel. It must be read in the context of the whole opinion on the Motion to Dismiss wherein the Court held that the Court did have jurisdiction, and pointed out the reasons why the United States was not, on the face of the pleadings, an indispensable party.
The above-quoted statement means nothing more than that the Complaints did not state a cause of action for declaratory relief against the United States because the United States was not, on the face of the pleadings, an indispensable party to action for the relief prayed for by the plaintiffs. With the United States joined as a party, and with pleadings as amended and supplemented, a claim for relief is stated as against the United States.
[31] The Supreme Court has said that such statutes are to be construed, "with that conservatism which is appropriate in the case of a waiver of sovereign immunity". United States v. Sherwood, 1941, 312 U.S. 584-590, 61 S.Ct. 767, 771, 85 L.Ed. 1058. The Supreme Court has also taken note of the general relaxation of the rules of waiver of sovereign immunity. Federal Housing Administration, etc. v. Burr, 1940, 309 U.S. 242, 60 S.Ct. 488, 84 L. Ed. 724; United States v. Shaw, 1940, 309 U.S. 495-501, 60 S.Ct. 659, 84 L.Ed. 888; Canadian Aviator, Ltd. v. United States, 1945, 324 U.S. 215-222, 65 S.Ct. 639, 89 L.Ed. 901. And where jurisdiction was clear, recovery has been allowed, despite procedural objections. United States v. Aetna Casualty & Surety Co., 1949, 338 U.S. 366, 70 S.Ct. 207, 94 L. Ed. 171; United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523; Dalehite v. United States, 1953, 346 U.S. 15, 31-32, 73 S.Ct. 956, 97 L.Ed. 1427.
[32] Such as the Act of July 26, 1866, 14 Stat. 251; the Act of July 9, 1870, 16 Stat. 217; the Desert Land Act of 1877, 19 Stat. 377, 43 U.S.C.A. § 321 et seq.; the Timber Land Act of March 3, 1891, 26 Stat. 1101, 43 U.S.C.A. § 946; the Federal Water Power Act of 1920, as amended, 16 U.S.C.A. § 791A, etc.; The Reclamation Act of June 17, 1902, 32 Stat. 388; the so-called Central Valley Re-authorization Act of August 9, 1937, 50 Stat. 564, and of August 26, 1937, 50 Stat. 844; the Flood Control Act of October 17, 1940, 54 Stat. 1198; the Flood Control Act of December 22, 1944, 58 Stat. 887; The Raker Act of 1913, 38 Stat. 242.
[33] All of the hearings on S. 18, as well as the Congressional Record references, have been examined. Without re-stating them at length, it is sufficient to say that they support the conclusions herein reached. Special Assistant to the Attorney General, William H. Veeder, appeared before the Senate Committee in opposition to the Bill. The Department of Justice and the Department of the Interior formally filed objections to the Bill. The Committee Report particularly noted the objections, and concluded: "That the legislation is meritorious." One objection urged by Mr. Veeder to the Committee was that the legislation was not needed because the United States would work out an "amicable adjustment" or "settle those rights," to which the reply of Senator Watkins was: "You say that you can settle amicably these matters. Why is it they are willing to settle amicably? Because you have them over the barrel. They can't take you anywhere else. They can't go into court and fight for their rights. They have to take what you give them. Of course you can work out a settlement if you have a fellow who hasn't any weapons to fight with."
[34] United States v. Sherwood, supra, was decided in 1941, after the promulgation of the Federal Rules of Civil Procedure but before the revision of the Judicial Code in 1948.
Amendment No. 61, S.Rept. 1559, 80th Cong., 2nd Sess., which reported the 1948 revision, is significant in that it states the reason for omission of proposed Section 2676 (formerly 28 U.S.C.A. § 932) making the Federal Rules of Civil Procedure specifically applicable to Tort claims actions, on the ground that the Federal Rules of Civil Procedure "apply to all civil actions."
[35] An affidavit in the case shows that plaintiffs have expended in excess of $60,000 in costs and witness fees alone. The cost to the government and States and Districts must have been equally as great, or greater.
[36] On December 3, 1954, at the pretrial hearing and again on December 7, 1954, at the commencement of the reopened trial, B. Abbott Goldberg, Deputy Attorney General of the State of California, attempted to enter an appearance on behalf of the defendants who are officials of the United States. Upon inquiry (Tr. 22,973, et seq. and 23,408, et seq.) it developed he had no personal authority from any of them, but was depending for such authority on a letter and a telegram from the United States Department of Justice, signed by one J. Lee Rankin, "Assistant Attorney General, Office of Legal Counsel." Upon further inquiry it developed that Mr. Goldberg, was not an Assistant United States Attorney, Assistant Attorney General of the United States, Special Assistant to the United States Attorney General, and neither an employee of the United States Department of Justice, nor an official of the United States, and was a sworn official of the State of California, and had not taken an oath as a United States official.
In light of the requirements of Title 5 U.S.C.A. §§ 8, 16, 306, 309, 312 and 315, and Title 28 U.S.C.A. §§ 502, 503, 504, 505 and 507, and the Opinion of the Attorney General of the United States, 19 Op.A.G. 219-221 (1889), the Court declined to recognize Mr. Goldberg as appearing for said parties.
The Court also based its ruling on the proposition that a lawyer cannot represent interests which are, or may be, adverse. "Even a state, when she voluntarily becomes a complainant in a court of equity, cannot claim to represent both sides of a controversy." State of Minnesota v. Northern Securities Co., 1902, 184 U.S. 199, at page 246, 22 S.Ct. 308, at page 326, 46 L.Ed. 499. In this case the assertion is made that the United States owns the fee title to the water, which is contrary to the claim of the State in its Answer, and which has, at one time or another, been asserted by the State, the Districts, and the plaintiffs to be contrary to the constitutional provisions of the State of California and the California Water Code. Mr. Goldberg contended in December, 1954, that there is no conflict of interest between the State and the United States. But it is impossible to see how one could concede that the United States holds fee title to the water of the State, and at the same time contend that such holding was not in conflict with the provisions of the California Constitution and laws, and was a mere trusteeship, when such trusteeship is not admitted.
[37] In this connection, reference is made to a similar statement by the Court of Appeals in its Opinion in the 1954 Writ proceedings 213 F.2d 818, at page 823.
[38] Neither of the two cases cited to Rule 55(e) are in point. United States v. Geisler, 7 Cir., 1949, 174 F.2d 992, certiorari denied 338 U.S. 861, 70 S.Ct. 103, 94 L.Ed. 528, simply held that a motion to set aside judgment three years after the judgment had been made was not such a proceeding as was contemplated by Rule 55(e) so as to permit a judgment by default against the United States. United States v. Reynolds, 3 Cir., 1951, 192 F.2d 987, reversed 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727, was a case which turned on whether or not a judgment for default against the United States was entitled to be entered upon the basis of the presumption that documents failed to be produced, would be against it when the government failed to produce the documents in question. The court simply held that such a ruling did not amount to a judgment by default on the basis required by Rule 55(e) that the claimant must establish his claim or right to relief by evidence satisfactory to the court.
[39] In Noonan v. Caledonia Mining Co., 1887, 121 U.S. 393, 7 S.Ct. 911, 30 L.Ed. 1061, the court held that where no Answer was filed to an amended Complaint filed after judgment, asserting new interests against a party who had participated at the trial, the defendant should have insisted upon the right to file a formal answer if he desired, and that inasmuch as he did not do so, "He was probably satisfied with the answer of his co-defendant on file, which put in issue the plaintiff's title, and set up all that he could have pleaded for himself. He had on the trial all the benefits of the most formal answer, and his connection with the case as a party sufficiently appears from the amendment filed." 121 U.S. at page 400, 7 S.Ct. at page 914.
[40] The present position of the State of California and the defendant districts is not clear. In their pleadings no such assertion is made, and from time to time they have asserted that the United States derived whatever rights it has to divert and impound the water solely from and under State law. But in the final briefs filed, the briefs in the two Extraordinary Writ proceedings are incorporated by reference. And in the brief filed by the State of California in the 1954 Writ proceedings in the United States Court of Appeals, the State of California asserted that the United States had acquired the water rights necessary for the project by, among others, the "exercise of its power of eminent domain." The defendant districts, except the South San Joaquin Municipal Utility District, in a concurrent petition to the Court of Appeals at the same time, asserted the United States "has taken" all the water rights.
[41] The Supreme Court in United States v. State of Arizona, 295 U.S. 174, at page 181, 55 S.Ct. 666, 79 L.Ed. 1371, collected in Footnote 3, the amendatory and supplemental Acts to that date.
It is to be noted that the Act of June 25, 1910, 36 Stat. 835, 43 U.S.C.A. §§ 400, 413, was there held by the Supreme Court to be an amendment and supplement to the basic Reclamation law.
[42] The present Congress in its 1st session, made such requirements in Public 130, Ch. 271, approved July 4, 1955, 43 U.S. C.A. § 421a et seq.; Public 226, Ch. 548, approved August 4, 1955, 43 U.S.C.A. § 321 note; Public 374, Ch. 860, approved August 12, 1955, 69 Stat. 697; and Public 386, Ch. 872, approved August 12, 1955, 69 Stat. 719.
[43] This section is substantially the same as 40 U.S.C.A. § 257, which deals generally with eminent domain.
[44] The first clause of Section 2 transferred from the Secretary of War to the Secretary of the Interior the work of channelization of the San Joaquin river between Stockton and Mendota for which $12,000,000 had been recommended in the Rivers and Harbors Committee Report No. 35, 73rd Congress. Section 2 exempted such sum from reimbursement under the Reclamation laws. In view of the fact that the channelization was later abandoned and replaced with the Delta-Mendota canal, the reference in the Act of 1937, two years after the Feasibility Report of 1935, signifies that the plans for the Delta-Mendota canal as a substitute for the channelization mentioned in the Feasibility Report and Report No. 35 were not approved or authorized by the Act of August 26, 1937. That question is not decided here.
[45] The only thing in the Act "otherwise provided" was that the $12,000,000 for channelization of the San Joaquin River from Stockton to Mendota was not reimbursable under the Reclamation laws.
[46] Similar re-authorization is contained in almost identical language in Section 2 of the Act of October 17, 1940, 54 Stat. 1198-99. The Act of October 14, 1949, 63 Stat. 852, reauthorized the Central Valley Project as authorized by the Act of Congress of August 26, 1937, 50 Stat. 850, above quoted, to include the American River Development as described in the Act of October 14, 1949. The Act of September 26, 1950, 64 Stat. 1036, reauthorized the Central Valley Project as authorized in the Act of August 26, 1937, 50 Stat. 844-850 and the Act of October 17, 1940, 54 Stat. 1198-99. Both the Act of October 14, 1949, and the Act of September 26, 1950, again require adherence to the provisions of the Reclamation law.
Other Acts of Congress dealing specifically with the Central Valley Project are collected, and the text of the applicable provisions thereof, are set forth in D.C., 90 F.Supp. 773, page 810 et seq., and will not be repeated here except as reference may be necessary in the discussion.
Most of the Acts are appropriation Acts, as distinguished from Authorization Acts, making appropriations in a lump sum to the Bureau of Reclamation for the Central Valley Project, without allocation of sums to particular units. Some of them do so, however. Only one allocates an appropriation to the Delta-Mendota canal, the Act of December 28, 1945, 59 Stat. 632-647, 90 F.Supp. 773, Appendix 29, at page 822; and only three allocate an appropriation to Friant Dam. They are: The Act of June 22, 1936, 49 Stat. 1597-1622, 90 F.Supp. 773, Appendix 10, at page 813, allocating "$6,000,000 * * [to] Friant Reservoir and irrigation facilities therefrom"; the Act of July 12, 1943, 57 Stat. 451, 90 F.Supp. 773, Appendix 25, at page 819, which allocated specific sums to Friant Dam and Reservoir, Madera Canal and Friant-Kern Canal, and also $200,000 for "examinations, surveys, and water rights"; the Act of December 28, 1945, 59 Stat. 632-647, which made an allocation of a specific sum to Friant Dam and Reservoir and to the Friant-Kern Canal. It is noted that only one Act of Congress mentions Madera Canal, and makes an allocation of a specific appropriation to itJuly 12, 1943; and only two mention Friant-Kern Canal, and make a specific appropriation to it the Act of July 12, 1943, and the Act of December 28, 1945.
Other Acts of Congress are: The Act of August 30, 1935, 49 Stat. 1028-38, which dealt only with the Sacramento River; the Act of July 2, 1942, 56 Stat. 506-536, which made a blanket appropriation to the Bureau of Reclamation Central Valley Project; the Act of July 1, 1946, 60 Stat. 348-367, which made appropriations to the Bureau of Reclamation for general purposes and for designated units of the Central Valley Project, not including Friant Dam, Madera Canal, Friant-Kern Canal, or Delta-Mendota Canal; the Act of December 23, 1947, 61 Stat. 941-944, which likewise made appropriations for general purposes and specific units, not including any of those last above mentioned; the Act of October 14, 1949, 63 Stat. 852, and the Act of September 26, 1950, 64 Stat. 1036, each of which dealt with specific units of the Central Valley Project other than those concerned in the instant case.
The Act of October 14, 1949, dealt with Folsom Dam on the American River, and its appurtenant works. The Act of September 26, 1950, dealt with units in "the Sacramento River Basin only." The two last above-mentioned Acts are the only Acts of Congress making specific reference to any reports or bulletins of the State of California, Bulletin 13 and Bulletin 26. Neither of them was offered in evidence or referred to by the parties, and it is hence concluded they have no bearing on the issues in this case.
[47] This case was brought to the attention of the Supreme Court in the Gerlach case by the briefs of the parties. The Supreme Court did not mention it in its decision. Nothing in the Opinion can be said to modify, or overrule it. Hence, it is still the law.
[48] The Emergency Relief Appropriations Act of 1935 above mentioned, (the text of the material provisions of which are found in 90 F.Supp. App., at page 813) made appropriation for $350,000,000 for sanitation, prevention of soil erosion, stream pollution, sea coast erosion, reforestation, forestation, flood control, rivers and harbors and miscellaneous projects. Following that Statute, the President, on September 10, 1935, by Executive Order, made $20,000,000 available for the Central Valley Project, $14,000,000 of which was allotted to Friant Reservoir, with other sums allotted to distribution canals from the Reservoir without describing them.
Again on November 16, 1935, by Executive Order, $14,000,000 was allotted to the Reclamation Service for the Central Valley Project. Whether the Order of November 16, 1935, merely transferred to the Reclamation Service the $14,000,000 allocated to Friant Reservoir by the Order of September 10, 1935, is not clear, and is immaterial.
The First Deficiency Appropriation Act of 1936, 49 Stat. 1622, made an appropriation of $6,000,000 to the Bureau of Reclamation for "Friant Reservoir and irrigation facilities therefrom".
[49] The Feasibility Report has never been amended or modified, and there has been no subsequent Feasibility Report approved by direct order of the President covering either the Friant Dam unit or Delta-Mendota Canal unit as actually constructed.
[50] It is to be noted that the Supreme Court held that the ordinary or "natural" flow of the San Joaquin River included the seasonal flood flows. In this respect the Court, without alluding to them, reached the same conclusion as that reached by California Courts concerning riparian rights to flood flows, in Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607, certiorari dismissed 275 U.S. 486, 48 S.Ct. 27, 72 L. Ed. 387; Chowchilla Farms, Inc., v. Martin, 219 Cal. 1, 33, 25 P.2d 435; Miller & Lux v. Madera Canal & Irrigation Co., 155 Cal. 59, 99 P. 502, 22 L.R.A.,N.S., 391; Piper v. Hawley, 179 Cal. 10, 17, 175 P. 417; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 569, 570, 45 P.2d 972; Miller v. Bay Cities Water Co., 1910, 157 Cal. 256, 107 P. 115, 27 L.R.A.,N.S., 772; Collier v. Merced Irr. Dist., 1931, 213 Cal. 554, 558, 2 P.2d 790.
[51] It is urged in that connection that the Gerlach case stands for the proposition that the Supreme Court held that on October 20, 1841, there was an impounding of water which was an exercise of the power of eminent domain for the entire flow of the river. This was the date adopted by the Court of Claims in the Gerlach case for the date from which interest was computed. Since this date was not rejected by the Supreme Court, it is argued that there was a recognition by that Court that an exercise of the power of eminent domain occurred by the impounding of waters on October 20, 1941. However, the Court, 339 U.S. at page 755, 70 S.Ct. 955, makes it clear that the use of that date for the allowance of interest was justified, not on the theory that a taking occurred on that date, but because such date was adopted by the Government for the expiration of its protection under the Miller & Lux contracts. Thus, no inference that the Supreme Court found an exercise of the power of eminent domain by the impounding of water, can be drawn from the refusal of the Supreme Court to reject October 20, 1941, as the date for the commencement of interest in that case. Even if such an inference could be made, it would have to be restricted to the facts of, and the lands involved in, the Gerlach casewhere seasonal flood waters were concerned. Presumptively, the first waters impounded would be flood waters otherwise wasted. The same reasoning would not be applicable to waters previously put to a reasonable and beneficial usewhich continues after 1928 to be a use enforceable in equity. It follows that the Gerlach case cannot be construed as holding that the impounding of water was an exercise of the power of eminent domain as to all rights of plaintiffs to the use of water.
The evidence shows that initial impounding, which began October 20, 1941, ceased on November 11, 1941, at which time there had been impounded only a total of 17,400 acre-feet of water, which was less than one per cent of the average annual flow of the river of 1,800,000 acre-feet. For this Court to hold that such an impounding constituted a taking by eminent domain of the entire flow of the river at Friant, would not only be contrary to reason, but would fly in the face of cases such as the Danforth case, 1939, 308 U.S. 271, 60 S.Ct. 231, 237, 84 L.Ed. 240, where the Court held that there was not a taking by eminent domain when the work on the levee was commenced or completed, but that the right to compensation would accrue when there was put "upon this land a burden, actually experienced". See, also, United States v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789. As will be seen later, no burden was actually experienced by that impounding, i. e., the plaintiffs continued to receive all the water they formerly had flowing past their lands until long after October 20, 1941. In fact, the flow on occasion was increased. The impounding of water was recommenced in 1944 by a partial closing only of the river outlets, and the plaintiffs in fact, thereafter, continued to receive water past their lands as before, as will hereinafter be discussed.
[52] Many California cases discuss such history at length. Particular reference is made to the address of Chief Justice Shaw to the joint session of the California and American Bar Associations in 1922, found as an Appendix in 189 Cal. 779; Lux v. Haggin, 1886, 69 Cal. 255, 4 P. 919, 10 P. 674; Katz v. Walkinshaw, 1903, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236; City of Pasadena v. City of Alhambra, 1949, 33 Cal.2d 908, 207 P.2d 17; and United States v. Gerlach Live Stock Co., 1950, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231; The Fallbrook cases, United States v. Fallbrook Public Utility District, D.C., 101 F.Supp. 298; Id., D.C., 108 F.Supp. 72; Id., D. C., 109 F.Supp. 28; Id., D.C., 110 F. Supp. 767.
[53] Subsequent to the decision the Edison Securities Company acquired the Herminghaus properties and water rights.
By a series of contracts in 1944 and 1945, the United States acquired all those rights from the then holders. (Exhibit A-48-A, Cont. No. 175-4-82).
[54] Neither the Constitutional amendment nor subsequent cases have changed the doctrine that the full natural or ordinary flow of a river includes the seasonal and cyclic flood flows. See United States v. Gerlach Livestock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231, and cases cited in footnote 50, Page 99.
[55] "§ 100. Fullest beneficial use of water resources: Prevention of waste or unreasonable use or method: Conservation: Limitation of right. It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such water is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or watercourse in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water."
[56] "§ 101. Attachment of riparian rights to flow of stream or watercourse: Construction. Riparian rights in a stream or watercourse attach to, but to no more than so much of the flow thereof as may be required or used consistently with this and the next preceding section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing in this or the next preceding section shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled."
[57] Involving riparian and overlying owners versus appropriators.
[58] Involving riparian owners versus appropriators.
[59] Involving riparian and overlying versus riparian and overlying.
[60] Involving overlying appropriator versus surface appropriator.
[61] While Section 1201 of the California Water Code states what waters of surface streams are subject to appropriation, and Section 1202 declares what waters of such streams are unappropriated, the above terse definition is the one generally accepted by the cases, and in fact is an epitomization of those code sections, which read as follows:
"§ 1201. [Public water of State]. All water flowing in any natural channel, excepting so far as it has been or is being applied to useful and beneficial purposes upon, or in so far as it is or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto, or otherwise appropriated, is hereby declared to be public water of the State and subject to appropriation in accordance with the provisions of this code.
"§ 1202. [Unappropriated water]. The following are hereby declared to constitute unappropriated water:
"(a) All water which has never been appropriated.
"(b) All water appropriated prior to December 19, 1914, which has not been in process, from the date of the initial act of appropriation, of being put, with due diligence in proportion to the magnitude of the work necessary properly to utilize it for the purpose of the appropriation, or which has not been put, or which has ceased to be put to some useful or beneficial purpose.
"(c) All water appropriated pursuant to the Water Commission Act or this code which has ceased to be put to the useful or beneficial purpose for which it was appropriated, or which has been or may be or may have been appropriated and is not or has not been in the process of being put, from the date of the initial act of appropriation, to the useful or beneficial purpose for which it was appropriated, with due diligence in proportion to the magnitude of the work necessary properly to utilize it for the purpose of the appropriation.
"(d) Water which having been appropriated or used flows back into a stream, lake or other body of water."
[62] The facts of this case do not require any discussion of the law relating to loss of rights by an appropriator when he ceases to put the water to reasonable and beneficial uses by reasonable methods of diversion and use. See Water Code, Sections 1240 and 1241, and former Civil Code Section 1411.
[63] The quantity of water thus needed will be dealt with under the heading "Physical Solution."
[64] Covering the Herminghaus lands, the riparian rights to which were adjudicated in Herminghaus v. Southern California Edison Co., supra.
[65] Described in United States v. Gerlach Live Stock Co., 339 U.S. 725, at page 742, 70 S.Ct. 955, 94 L.Ed. 1231, as a "strange transaction."
[66] The schedule for measurements at Whitehouse in second-feet, decreased, by the upstream diversions of the Miller and Lux Canal Companies, as set forth in the contract, is as follows:
Month : Schedule 1 : Schedule 2
--------------------------------------------------------------------------------
January : 372 : 28 plus Chowchilla Canal Water Right (a)
February : 495 : 40 ditto
March : 1,242 : 68 ditto
April : 1,837 : 113 ditto
May : 2,144 : 141 ditto
June : 2,291 : 159 ditto
July : 2,316 : 159 ditto
August : 2,099 : 111 ditto
September : 1,267 : 68 ditto
October : 620 : 40 ditto
November : 445 : 40 ditto
December : 372 : 28 ditto
(a) The Chowchilla right is described in full in the contract; it varies between
60 and 120 second-feet.
[67] California Civil Code § 1412 until its repeal in 1943, and California Water Code, §§ 1701-1706 inclusive since 1943.
[68] By a contract made in May, 1939, the Madera Irrigation District transferred to the United States the property comprising the Friant dam site as well as certain gravel lands lying below Friant, and also whatever rights it had to the use of water in the river, giving to the United States, as against said District only, the right to impound, store and divert the water. The contract specifically covered an assignment of applications to appropriate waterApplications No. 234 filed January 19, 1916, No. 1465 filed September 26, 1919, and No. 2792 filed March 31, 1922. In a final judgment in case No. 25729 of the Superior Court, in and for the County of Fresno, known as the Haynes decree, Miller & Lux was adjudicated to have the right of the entire flow of the river delivered to them as against any rights claimed by the Madera Irrigation District in Applications Nos. 234 and 1465. That decree also provided that as against the riparian rights of Miller & Lux, the right of the Madera Irrigation District by virtue of said applications was to divert only the extraordinary or unusual flow of the waters in the river which were defined to be a flow in excess of 20,000 cubic feet per second at any time, or in excess of 3,000,000 acre-feet in any one year as the river would flow in its natural condition unaffected by storage by the Power Companies or by the diversions up the river.
[69] In addition to the applications, there was assigned to the United States by Miller and Lux the permit and license issued on Application No. 23 to Panoche Water Association for diversion of a small amount of water in the vicinity of or below Mendota. What is said concerning the change of point of diversion under the heading "Purchase and Exchange Contracts" is applicable to this license and permit.
[70] The rule stated in the cases of Moore v. California Oregon Power Co., 1943, 22 Cal.2d 725, 140 P.2d 798, and Seneca Consol. Gold Mines Co. v. Great Western Power Co., 1930, 209 Cal. 206, 287 P. 93, 70 A.L.R. 210, that seasonal and periodic storage of waters is adverse to the rights of lower owners of vested rights, and may thus ripen into a prescriptive right to store, must be read against facts in those cases showing that pre-1928 law was applicable, and that prescriptive right had accrued before the 1928 amendment. At that date all appropriations of a part of the natural flow of a stream were adverse to lower riparians, and could ripen into a prescriptive right. Since 1928 only an appropriation of non-surplus is adverse and can have this result. The doctrine applicable to storage begun since 1928 is set forth in Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, at pages 445-452, 90 P.2d 537. On page 451, of 13 Cal.2d on page 550 of 90 P.2d, the Court states that waters of a river "in excess of the needs of lower riparian owners and prior appropriators for all reasonably useful and beneficial purposes have been released by the constitutional amendment of 1928 for storage and other beneficial uses * * *, and that the injunctive or other processes of the court are not available to the lower riparian owners or appropriators to prevent the storage of such excess waters." This is in effect a statement that there is no invasion of lower vested rights by the storage of surplus since 1928. It follows that no inference is to be drawn from pre-1928 law that periodic storage is, since 1928, ipso facto adverse as to the entire flow of the river, but the proper conclusion is that set forth in 1939 in Meridian, Ltd. v. City and County of San Francisco, supra, concerning post-1928 facts and law.
[71] Shasta and Keswick dams on the Sacramento; Friant on the San Joaquin; Pine Flat on the Kings; and Isabella on the Kern.
[72] To be distinguished from a judgment for damages in tort.
[73] A question not decided herein.
[74] The plaintiffs may be entitled to both water and damages under the California cases, a question not necessary for decision at this time.
[75] Art. XIV, § 1. "Public use; state and local regulations; rates
"Section 1. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law; * * *."
(The remainder of the Section contains self-executing provisions concerning the fixing of rates for water supplied to any city and county, or city or town, or the inhabitants thereof).
[76] "§ 2701. Water companies as public utilities: Control and regulation thereof.
"Any person, firm, or corporation, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating, or managing any water system within this State, who sells, leases, rents, or delivers water to any person, firm, corporation, municipality, or any other political subdivision of the State, whether under contract or otherwise, is a public utility, and is subject to the provisions of Part 1 of Division 1 and to the jurisdiction, control, and regulation of the commission, except as otherwise provided in this chapter."
(The exceptions do not appear to be applicable to the facts in the within case).
[77] In Tulare Irrigation District v. Lindsay-Strathmore etc., 1935, 3 Cal.2d 489, at page 533, 45 P.2d 972, at page 990, the Court stated: "* * * as was held in the Peabody case, and reaffirmed earlier in this opinion, the riparian as against an appropriator, has two major rights: (1) In the event a public use has not attached, and in the absence of a condemnation suit, he is entitled to an injunction to protect his prior right to the amount of water he presently needs for reasonable beneficial purposes; and (2) he is entitled to a judicial declaration of his prior right to whatever quantity he may in the future need for such uses." See also Beals v. City of Los Angeles, 1943, 23 Cal.2d 381, 387, 388, 144 P.2d 839.
[78] From the evidence it appears that the dates of the contracts between the United States and the 15 Irrigation District defendants, together with the date of the factual report upon the feasibility of furnishing water to such districts, as well as the initial water delivery date, are as set forth in the following table:
-------------------------------------------
Factual 1st del.
Contract Report of Water
-------------------------------------------
Delano-Earlimart : 8/11/51 : : June 1950 : 3/ 1/52
Exeter : 11/ 8/50 : : Jan. 1950 : 3/23/51
Ivanhoe : 9/23/50 : : Apr. 1949 : 3/20/50
Lindmore : 2/29/49 : : June 1948 : 5/19/50
Lindsay-Strathmore : 8/ 5/48 : : Jan. 1950 : 7/ 9/49
Lower Tule : 5/ 1/51 : : Aug. 1950 : 3/ 1/52
Orange Cove : 5/20/49 : : Aug. & : 7/ 9/49
: Sept.1947
Porterville : 1/28/52 : : July 1950 : 3/ 1/52
Saucelito : 2/13/51 : : June 1950 : 3/24/51
S.S.J.M.U.D. : 10/18/45 : : Feb. &
: Mar. 1948 : 3/31/51
Stone Corrall : 12/13/50 : : Jan. 1950 : 3/27/51
Terra Bella : 10/12/50 : : Jan. 1950 : 4/13/51
Tulare : 10/18/50 : : Feb. 1949 : 3/19/51
Chowchilla : 7/ 5/50 : : Mar. 1950 : 3/22/51
Madera : 5/14/51 : : Mar. 1950 : 3/ 1/52
[79] There is authority that they are not. Thayer v. California Development Co., 1912, 164 Cal. 117, 128 P. 21; Allen v. Railroad Commission etc., 1918, 179 Cal. 68, 175 P. 466, 8 A.L.R. 249; Marin Water & Power Co. v. Town of Sausalito, 1914, 168 Cal. 587, 143 P. 767.
[80] In City of Lodi v. East Bay Municipal Utility District, 1936, 7 Cal.2d 316, 60 P. 2d 439, the court refused to apply the doctrine of intervention of a Public use, and indicated a doubt that it could be applied against a City.
[81] That is what the United States is doing here.
[82] While the Federal Reclamation laws make the United States subject to the water laws of the State, they also contain elaborate provisions concerning the terms of contracts, which the Secretary of the Interior is authorized to make, for the furnishing of water by the United States from any reclamation project. Act of August 4, 1939, 53 Stat. 1187, 43 U.S.C.A. § 485. All of the contracts with the Irrigation Districts are, from the evidence, made under Section 9(e) of said Act, 43 U.S.C.A. 485h(e), which permits the Secretary, "in lieu" of making contracts for the return of construction costs over 40 years, to make service, or so-called "utility" contracts covering the annual operation costs, with "consideration" to be given to the construction costs connected with the particular works involved. It is not necessary to a decision of this case to construe those sections or to determine whether or not the United States is subject to regulation by the Public Utilities Commission of the State of California as to rates and service in connection with water furnished or agreed to be furnished from Friant dam and diversion works. The contracts are not offered as of right to any district or user which or who may be capable of being served by either Madera or Friant-Kern canal.
It was pointed out in Fresno Canal & Irrigation Co. v. Park, 1900, 129 Cal. 437, 444, 62 P. 87, that the main purpose of the self-executing provisions of Article XIV, Section 1, of the California Constitution requiring the fixing of rates by municipalities or counties, was to remedy the evil that one having a monopoly on a water supply would, by exorbitant charges, oppress a large number of users who would be compelled to have water constantly for domestic or municipal uses.
The legislature extended this purpose to all those furnishing water to users when it implemented those provisions of Article XIV, Section 1, which were not self-executing, by enacting the Statutes which are now in the California Public Utilities Code or Water Code covering other purveyors of water.
The concept of public use as discussed in cases in construing Article XIV, Section 1 of the California Constitution, and its implementing legislation, is, that when a public use has, as a matter of fact, intervened or attached, water shall not only be available to all those in the service area on equal terms as a matter of legal right, Allen v. Railroad Commission etc., supra, but also that the public interest requires that rates and terms of service shall be fixed by a public body after hearing with the right of judicial review. Or as stated in Contra Costa Water Co. v. City of Oakland, 1911, 159 Cal. 323, at page 333, 113 P. 668, at page 673: "`As was said in Spring Valley Water Co. v. [City and County of] San Francisco, 9 Cir., 165 F. 676, this provision of our Constitution is justified and sustained by the well-settled principle enunciated in Munn v. [State of] Illinois, 94 U.S. 113, 126, 24 L.Ed. 77, that where one devotes his property to a public use, "he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created, * * * so long as he maintains the use. * * * When private property is devoted to public use, it is subject to public regulation." If the right to regulate exists, the right to establish the reasonable compensation for services as one of the means of regulation is implied.'"
[83] Section 1052 of the California Water Code declares that the diversion of water without prior compliance with the Water Code is a trespass.
[84] While the principles upon which the Court bases its conclusion are amply set forth throughout the body of the Opinion, it would not be amiss to make a general summary statement of California law as established by the cases on the doctrine of public use. They are:
The attachment of a public use requires a dedication to that use, i. e., if one has a lawful right to appropriate and divert water, he may, by conduct, make it available and purvey it to the public, and when he does so, he is said to have dedicated that portion so made available to a public use. One may dedicate all or only a portion of the flow of a stream or appropriative rights which he has or claims, to a public use: Inasmuch as an appropriation of water may be made for a private use, it follows that the act of acquisition of the lawful right to appropriate water is distinct from the act of attachment of, or dedication to, a public use, and must precede it: If one lawfully owning a right to appropriate water so dedicates it to a public use, and in doing so invades a prior water right, the owner of the prior right is said to have consented to such dedication to a public use if by his conduct he has waived his right to object so as to justify the invocation of the equitable doctrines of laches or estoppel, in which event, the prior right is not destroyed, and he may be, but not necessarily, relegated to a recovery of damages: If there has been no waiver by the owner of the prior right so as to warrant the invocation of the doctrine of laches or estoppel, and if (1) the purveyor of water to the public lawfully owns a right to appropriate water, and (2) if such purveyor has the power of eminent domain under Article I, Section 14 of the California Constitution, and (3) if before filing of the suit by the prior right, (4) such purveyor has in fact actually devoted the water to the use of the public, or that portion to be served (a) on equal terms of service and rates, and (b) not by selecting and choosing whom he shall serve and whom he shall not by entering into separate contracts with each, (c) and members of the public in the service area may demand and enforce such service as a matter of right, and (5) if the general public so served who may demand such service from the purveyor as a matter of right have come to depend upon such service by actual delivery of the water to them prior to the filing of suit by the prior right, and (6) if the prior right is of such nature that the inconvenience to be suffered by its owner is relatively small compared to the inconvenience which would be suffered by depriving the public of the water actually used by them and upon which they have come to depend prior to suit, then it may be said that upon considerations of public policy, a public use has intervened against the owner of the prior right to the extent that he may be, but is not necessarily, compelled to accept damages by way of inverse or reverse condemnation in lieu of an unconditional injunction compelling delivery of water to him in satisfaction of his prior right.
[85] "§ 11460. Deprival of prior right to water to supply watershed area. In the construction and operation by the authority of any project under the provisions of this part a watershed or area wherein water originates, or an area immediately adjacent thereto which can conveniently be supplied with water therefrom, shall not be deprived by the authority directly or indirectly of the prior right to all of the water reasonably required to adequately supply the beneficial needs of the watershed, area, or any of the inhabitants or property owners therein."
"§ 11463. Exchange of water between watersheds or areas. In the construction and operation by the authority of any project under the provisions of this part, no exchange of the water of any watershed or area for the water of any other watershed or area may be made by the authority unless the water requirements of the watershed or area in which the exchange is made are first and at all times met and satisfied to the extent that the requirements would have been met were the exchange not made, and no right to the use of water shall be gained or lost by reason of any such exchange."
[86] "§ 10505. Restrictions. No priority under this part shall be released nor assignment made of any appropriation that will, in the judgment of the Department of Finance, deprive the county in which the appropriated water originates of any such water necessary for the development of the county."
[87] Meridian, Ltd. v. City and County of San Francisco, 1939, 13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105, and other cases cited under heading No. XI et seq. "Water Rights under California Law."
[88] The Opinion says, among other things: "A number of their official utterances are collected in a letter to Congressman Clair Engle from the Regional Director, U.S. Bureau of Reclamation, dated November 15, 1948(printed in Cong.Record, Feb. 21, 1949, 81st Cong., Vol. 95, p. A-961). Likewise the `Comprehensive Departmental Report on the Development of the Water and Related Resources of the Central Valley Basin,' submitted to Congress by the Department of the Interior (Aug. 1949, Senate Doc. 113, 81st Cong., 1st Sess., pp. 39, 64-65, 104, 121-122, 125), makes numerous references to protection of counties and watersheds of origin." See also D.C., 90 F.Supp. 773, and Exhibit 136 therein, pp. 64-65.
[89] "§ 10500. Making and filing of applications by Department of Finance: Procedure: Priority. The Department of Finance shall make and file applications for any water which in its judgment is or may be required in the development and completion of the whole or any part of a general or coordinated plan looking toward the development, utilization, or conservation of the water resources of the State.
"Any application filed pursuant to this part shall be made and filed pursuant to Part 2 of Division 2 of this code and the rules and regulations of the State Engineer relating to the appropriation of water insofar as applicable thereto.
"Applications filed pursuant to this part shall have priority, as of the date of filing, over any application made and filed subsequent thereto. Until October 1, 1955, or such later date as may be prescribed by further legislative enactment, the statutory requirements of said Part 2 of Division 2 relating to diligence shall not apply to applications filed under this part, except as otherwise provided in Section 10504."
[90] "§ 10504. Release or assignment; `Assignee.' The Department of Finance may release from priority or assign any portion of any appropriation filed by it under this part when the release or assignment is for the purpose of development not in conflict with such general or coordinated plan. The assignee of any such application, whether heretofore or hereafter assigned, is subject to all the requirements of diligence as provided in Part 2 of Division 2 of this code. `Assignee' as used herein includes, but is not limited to, state agencies, commissions and departments, and the United States of America or any of its departments or agencies."
[91] Applications Nos. 5637 and 5638 were both filed on July 30, 1927. Each pertained to the waters of the San Joaquin river "located in Madera and Fresno" counties, and the point of diversion specified in each was Temperance Flat which is above Friant, and in each, the height of the dam was stated to be 595 feet.
In Application No. 5637 it was stated that the amount of water desired to be appropriated "without storage" was 4,500 cubic feet per second, to be diverted from January 1st to December 31st of each season, and that it was desired that 1,210,000 acre-feet between the same dates of each year was desired for diversion to be temporarily stored, and that "the use to which the water is to be applied is Power Generation," and that the water would be returned to the river at the power house at the dam site.
In Application No. 5638 it was stated that the amount desired to be diverted without storage was 5,000 cubic feet per second, and that 1,210,000 acre-feet was desired to be temporarily stored and later diverted to be collected between January 1st and December 31st of each year; "The use to which the water is to be applied is irrigation, domestic and flood control."
Application No. 9639 was filed August 2, 1938. It specified 2,000,000 acre-feet to be collected between January 1st and December 31st each year to be temporarily stored and later diverted for use for irrigation, domestic and flood control. The points of diversion were both Temperance Flat and Friant, but the details as to dam and diversion works would be supplied "later," but would have a capacity of 20,000,000 acre-feet, although the area to be irrigated was said to be "900,000 acres on the floor of the San Joaquin valley."
The opening paragraph of each of the applications is as follows: "Department of Finance of the State of California of Sacramento, County of Sacramento, State of California, does hereby make application for a permit to appropriate the following described unappropriated waters of the State of California Subject To Existing Rights."
[92] Tulare Water Co. v. State Water Commission, 1921, 187 Cal. 533, 202 P. 874; Temescal Water Co. v. Department of Public Works, 1955, 44 Cal.2d 90, 280 P. 2d 1.
[93] It is sometimes said that if the character of the right comes within subdivision (1), it is a "true" class action, if subdivision (2) a "hybrid," and if subdivision (3) a "spurious" one. The Court prefers, however, not to use those terms as there is nothing in the Rules or in the history of them, or in the predecessor of Rule 23, which was old Equity Rule 38, which indicates such a distinction.
As noted by Mr. Justice Clark in Dickinson v. Burnham, 2 Cir., 1952, 197 F.2d 973, at page 979, certiorari denied 344 U.S. 875, 73 S.Ct. 169, 97 L.Ed. 678: "These labels should not be pressed so far as to obscure the original meaning and purpose of the rule itself."
While some of the cases indicate that the binding effect of a decree under Rule 23 depends on whether the community of interest or right sought to be enforced comes under subdivision (1), (2), or (3) of Rule 23(a), and while there is no dispute that in a case properly within Rule 23(a) (1) the decree binds absent members, it would seem that the true test of whether absent parties are bound is whether they were adequately represented. If they have been adequately represented (virtually present), they have in substance received their day in court, and due processthe ultimate testwould appear to be satisfied as to all the class whether the character of the right is described in subdivisions (1), (2), or (3). Hence, the decree should be res judicata.
If there is not adequacy of representation, it is difficult to see how there can be a class action. Paragraph (a) of the Rule makes adequacy of representation an absolute prerequisite to a class suit, regardless of the character of the right or community of interest sought to be enforced. Where this element is not satisfied, it would appear that there is no class suit, though the parties present may have been properly joined under Rule 20(a) relating to permissive joinder. If any part of Rule 23 is deemed a mere permissive joinder device, then Rule 20(a) is superfluous. As was said in Supreme Tribe of Ben-Hur v. Cauble, 1921, 255 U.S. 356, 41 S.Ct. 338, 342, 65 L.Ed. 673: "If the federal courts are to have the jurisdiction in class suits to which they are obviously entitled, the decree when rendered must bind all of the class properly represented." If they are not so bound, it is difficult to see how the suit could qualify as a class suit under Rule 23.
Either Rule 23 is inconsistent within itself by calling for adequacy of representation and yet permitting a suit thereunder which does not culminate in a binding decree despite satisfaction of due process, or the Rule is consistent and permits as class suits only those in which the decree will bind absent parties virtually present. The latter appears to be the more reasonable and logical construction.
[94] Reference is made to the following additional California cases:
"All riparian owners of a water course have a common right therein". Carlsbad Mutual Water Co. v. San Luis Rey Development Co., 1947, 78 Cal.App.2d 900, 911, 178 P.2d 844, 851.
"The rights of all landowners over a common basin, saturated strata, or underground reservoir, are coequal or correlative". O'Leary v. Herbert, 1936, 5 Cal.2d 416, 423, 55 P.2d 834, 838; Verdugo Canyon Water Co. v. Verdugo, 152 Cal. 655, 667, 93 P. 1021.
"There is no rational ground for any distinction between such percolating waters and the waters in the gravels immediately beneath and directly supporting the surface flow, and no reason for applying a different rule to the two classes, with respect to such rights, if, indeed, the two classes can be distinguished at all. Such waters, together with the surface stream supplied by them, should be considered a common supply, in which all who by their natural situation have access to it have a common right, and of which they may each make a reasonable use upon the land so situated, taking it either from the surface flow, or directly from the percolations beneath their lands. The natural rights of these defendants and the plaintiff in this common supply of water would therefore be coequal, except as to quantity, and correlative." Hudson v. Dailey, 1909, 156 Cal. 617, 628, 105 P. 748, 753.
"As between overlying owners, the rights are correlative and are referred to as belonging to all in common". Orchard v. Cecil F. White Ranches, Inc., 1950, 97 Cal.App.2d 35, 42, 217 P.2d 143, 148.
"The common-law rule, as interpreted in this country, is that the right to the waters of the steam, with certain exceptions, not material here, belongs to the riparian proprietors in common and equally". Charnock v. Higuerra, 1896, 111 Cal. 473, 479, 44 P. 171, 172, 32 L.R.A. 190; Miller & Lux, Inc. v. Enterprise Canal & Land Co., 1915, 169 Cal. 415, 440, 147 P. 567.
"In my judgment, the rights of the respective parties originated in a riparian source, are held by them in common, and invest each with equal rights to the use and enjoyment of the water of the stream." Anaheim Water Co. v. Semi-Tropic Water Co., 1883, 64 Cal. 185, 197, 30 P. 623, 627, concurrence of McKee, J.
"`The water of a stream belongs by a sort of common right to the several riparian owners along the stream'". Herminghaus v. Southern California Edison Co., 1926, 200 Cal. 81, 97, 252 P. 607, 614, quoting from Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 88 P. 978, 11 L.R.A.,N.S., 1062.
"Under the doctrine established in Katz v. Walkinshaw [141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236] [* * *], and subsequent cases of similar effect, the existence of a common supply of water in a state of percolation of such a character that the taking from one overlying tract will subsequently diminish the quantity available in another overlying tract gives correlative rights in the common supply and creates a right in one such landowner to prevent another from taking the water to distant lands not overlying the common supply". Burr v. Maclay Rancho Water Co., 160 Cal. 268, 273, 116 P. 715, 718.
"We may be guided by the general principle that each of the riparian owners on the stream is entitled to exercise his usufructuary right in the waters of the stream in common with all of the other riparian owners so as to make the most beneficial use of his land, limited, only by what is reasonable, having due regard to the common right of the other riparian owners." Cowell v. Armstrong, 1930, 210 Cal. 218, 226, 290 P. 1036, 1039.
[95] On the Motion to Dismiss, the Complaint was held to be insufficient to state a cause of action for rights to the use of water for recreational purposes, the replenishment of sand and gravel pits, and maintenance of fish life. The complaint has not been amended in that respect, no evidence with relation to such matters was introduced, and no holding herein is concerned therewith.
[96] Carlsbad Mutual Water Co. v. San Luis Rey Development Co., 1947, 78 Cal.App. 2d 900, 911, 178 P.2d 844.
[97] All proceedings in those cases were stayed after the Motions to dismiss were filed, until the conclusion of this suit.
[98] The full text of the decree is set forth in footnote "1" at page 378 et seq.
[99] The text of that portion of the Order is as follows:
"12. Plaintiffs, the State of California, and the defendant officials of the Bureau of Reclamation are directed on or before December 15, 1951, to prepare and serve upon counsel of record for each party hereto their respective plans for a physical solution of the problem of supplying water for irrigation and domestic purposes (a) to lands heretofore supplied by pumping directly from the San Joaquin River between Friant Dam and Gravelly Ford, (b) to lands heretofore supplied by pumping from wells in the San Joaquin River bottoms, and (c) to lands neighboring the river in Madera County and Fresno County together with such explanatory matter as may in their respective views be necessary for comprehension of such plans."
[100] The court further stated, 7 Cal.2d at pages 344-345, 60 P.2d at page 452: "The trial court should by its judgment preserve its continuing jurisdiction to change or modify its orders and decree as occasion may require.
"Such a decree would adequately meet the requirements of the Constitution by preventing an unreasonable waste of the waters of the stream, and at the same time would adequately protect the prior rights of the city of Lodi. It would afford to the city a continuance of its water supply, the same, for all practical purposes, as if natural conditions were required to persist. If its wells go down to the danger level, it would immediately obtain water from the District at the later's expense, or the injunction decree by means of which the underground levels will be artificially maintained would go into effect. It would accord to the District the right, and place upon it the duty, of working out a physical solution unhampered by a rigid decree which, with changing conditions and new methods of conservation constantly being developed, may not only operate inequitably but might actually encourage waste. It would place upon the District the duty at its expense to maintain the underground water levels and, if the District fails to do so, or fails to supply water directly to the city of Lodi, the decree provides for compulsory releases so as to maintain natural conditions. Such a decree would say to the District: You should maintain the water levels so as not to cause substantial damage to the city, and you may do this in any way best suited to your needs, or, if you do not maintain those levels, you should supplement the city's supply to the extent of the deficiency caused by your operations by the furnishing of water by artificial means and at your expense. If you do not do these things, you are subject to an injunction compelling releases to maintain natural conditions. Such a decree would undoubtedly prevent a multiplicity of suits. It would fix the rights of the prior appropriator and would determine the effect of the subsequent appropriator's diversions. Since there is no immediate danger to the prior appropriator, it would fix the danger levels of the prior appropriator's wells, and when that level is reached, upon a showing to that effect, it would require the subsequent appropriator either by direct delivery of water or by compulsory releases to supply the prior appropriator's needs. Such a decree would permit the full use of all available waters, guarantee to the prior appropriator full protection, and would do this without unduly restraining the operations of the subsequent appropriator."
[101] Exhibit "Cal. H and Cal. H-1."
[102] The chief witness for the State, while on the witness stand, equivocated as to the number of dams. The court must, therefore, regard the written plan submitted by the State as its plan.
[103] Exhibit Defts' "B".
[104] The Secretary of the Interior, in his letter of March 23, 1953, stated, inter alia, as follows:
"The impoundment of water in Friant Reservoir for diversion into the Friant-Kern and Madera canals necessarily alters the regimen of the San Joaquin river between Friant dam and the head of the Gravelly Ford canal, some 37 miles downstream. Rank v. Krug involves rights or claims of rights, under California law, to the use of water in an area affecting or affected by the flow of the river. The uncontrollable phenomena of natural forces affecting plant growth and groundwater movement, plus the unpredictable man-made diversion from the river and groundwater bodies in immediate contact with the river, make it impossible to forecast the day-to-day depletion demands upon the stream-flow below Friant dam. The Department of the Interior nevertheless proposes to operate Friant dam and reservoir in such a manner as to provide a continuous flow of water in the bed of the river sufficient, at all times, to satisfy the natural depletions and all valid rights, under California law, to the use of water of the San Joaquin river originating above the Gravelly Ford canal.
"More specifically, the Department will release from Friant reservoir into the bed of the river a sufficient quantity of water (1) to meet all valid legal requirements for the reasonable and beneficial use of water, both surface and underground, by reasonable methods of diversion and reasonable methods of use in that area, and (2) to provide, in addition thereto, a continuous live stream flowing at a rate of not less than five cubic feet per second at specified control points throughout the Friant-to-Gravelly Ford area, the last one to be at a point approximately one-half mile below the head of the Gravelly Ford canal.
"In addition to the maintenance of this flow and in aid of its availability for reasonable and beneficial use, the Department will perform channel rectification work, modify pump installations, substitute, or compensate landowners for the substitution of, wells and necessarily incident equipment for existing river pump installations, and, if necessary, construct check dams, all to such extent as may be necessary to insure the attainment of the objective this Department is committed."
[105] The loss by percolation between Friant and Mendota compared to various releases from Friant Dam, as testified to by Mr. Christian, is shown in the following table in cubic feet per second:
Release from Friant Percolation
-----------------------------------------------------------------
200 3
300 12
400 21
500 30
1000 76
1500 122
2000 167
2500 213
3000 258
[106] See heading "California Water Rights."
[107] Whether Tranquillity's rights are entirely riparian, or partly riparian and partly prescriptive, is immaterial in view of the conclusions herein reached.
108. Applications held by the United Stater
Date Date Applen.
Application Year Name of Assgd. amend. by
Number Filed Applicant to U.S. U.S.
23 1915 Panoche (a) 1939 12/20/51
234 1916 Madera 1939 12/20/51
1465 1919 Madera 1939 12/20/51
2792 1922 Madera (b) 1939
5637 1927 Dept. Finance (c) 1939
5638 1927 Dept. Finance (d) 1939 12/20/51
5817 1928 Miller & Lux 1939 12/20/51
5818 1928 Miller & Lux 1939 12/20/51
5819 1928 Miller & Lux 1939 12/20/51
5820 1928 Miller & Lux 1939 12/20/51
5821 1928 Miller & Lux 1939 12/20/51
5822 1928 Miller & Lux 1939 12/20/51
9639 1938 Dept. Finance (e) 1939 12/20/51
10750 1944 United States 6/21/51
Applications filed by the City of Fresno
67718/20/1930
67728/20/1930
713412/5/1931
713512/5/1931
Fresno Irrigation District
67736/15/1930
(a) The application of Panoche was followed by a permit and license which was owned by Miller and Lux. It concerned a comparatively small amount of water in the vicinity of or below Mendota.
(b) This was an application by Madera Irrigation District to store and divert water for power purposes. The United States has filed no amendment to that application.
(c) This application by the Department of Finance of the State of California was to store and divert water for power purposes at Temperance Flat, above Friant. No application to amend it has been made by the United States.
(d) This application was for irrigation, et cetera, but the point of storage and diversion was Temperance Flat. In the applications to amend filed by the United States, the point of storage and diversion was changed to Friant.
(e) This application designated both Temperance Flat and Friant as the points of diversion, which is sought to be changed to Friant only by the applications to amend filed by the United States.
[109] The hearings set did not cover applications No. 2792 of Madera for power purposes, No. 5637 of the State of California for power purposes at Temperance Flat, or No. 10750 of the United States, which appears to relate to diversions at Mendota.
[110] See heading "Applications to Appropriate held by the United States," ante, page 121.
[111] As noted heretofore, the motion to intervene was first denied in January, 1952, but after the defendants introduced in evidence as part of their case the applications to appropriate water, which had been assigned to the United States, the motions of both Tranquillity and the City of Fresno to intervene were renewed, and granted on May 7, 1953, by oral opinion [TR. 20236].
[112] Cal.Stat.1913, page 1012, as amended since that date, it is now incorporated in the Water Code in various sections, generally Sections 1200 et seq.
[113] "§ 106. * * * It is hereby declared to be the established policy of this State that the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation."
[114] "§ 106.5. * * * It is hereby declared to be the established policy of this State that the right of a municipality to acquire and hold rights to the use of water should be protected to the fullest extent necessary for existing and future uses, but that no municipality shall acquire or hold any right to waste water, or to use water for other than municipal purposes, or to prevent the appropriation and application of water in excess of its reasonable and existing needs to useful purposes by others subject to the rights of the municipality to apply such water to municipal uses as and when necessity therefor exists."
[115] Edwards v. People of State of California, 1941, 314 U.S. 160, at page 186, 62 S.Ct. 164, at page 172, 86 L.Ed. 119.
[116] The Court, desiring to again view the proposed dam sites, requested that plaintiffs' principal expert, Mr. Charles H. Lee, and Mr. Leland Hill, the principal expert for the defendants, accompany the Court to the area for the purpose of aiding the Court in finding the precise location on the ground of the various dam sites, and again inspecting and viewing the sites of the dams on the ground. All counsel consented, and the inspection trip down the river was made by the Court with said engineers on May 24, 1956. No additional evidence was taken on the trip. All dam sites except Nos. 13 and 14 of plaintiffs' plan were again inspected and viewed by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263467/ | 67 N.J. 151 (1975)
336 A.2d 713
SOUTHERN BURLINGTON COUNTY N.A.A.C.P., CAMDEN COUNTY C.O.R.E., CAMDEN COUNTY N.A.A.C.P., GLADYS CLARK, BETTY WEAL AND ANGEL PEREZ, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, AND ETHEL LAWRENCE, THOMASINE LAWRENCE, CATHERINE STILL, MARY E. SMITH, SHIRLEY MORRIS AND JACQUELINE CUSTIS, PLAINTIFFS-RESPONDENTS,
v.
TOWNSHIP OF MOUNT LAUREL, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
The Supreme Court of New Jersey.
Argued January 8, 1974.
Decided March 24, 1975.
*157 Mr. John W. Trimble argued the cause for defendant-appellant and cross-respondent (Messrs. Higgins, Trimble & Master, attorneys; Mr. Peter R. Thorndike, on the brief).
Mr. Carl S. Bisgaier, of Camden Regional Legal Services, Inc., argued the cause for plaintiffs-respondents and cross-appellants (Mr. Kenneth E. Meiser and Mr. Peter J. O'Connor, on the brief).
Mr. Norman Williams, Jr. argued the cause for amicus curiae The Public Interest Research Group of New Jersey.
Mr. Melville D. Miller, Jr. argued the cause for amicus curiae Legal Services Housing Task Force, New Jersey State Office of Legal Services.
The opinion of the Court was delivered by HALL, J.
This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N.J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future, and to present a plan of affirmative public action designed "to enable *158 and encourage the satisfaction of the indicated needs." Jurisdiction was retained for judicial consideration and approval of such a plan and for the entry of a final order requiring its implementation.
The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division. R. 2:12-1.[1]
The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this particular municipality.
There is not the slightest doubt that New Jersey has been, and continues to be, faced with a desperate need for housing, especially of decent living accommodations economically suitable for low and moderate income families.[2] The situation *159 was characterized as a "crisis" and fully explored and documented by Governor Cahill in two special messages to the Legislature A Blueprint for Housing in New Jersey (1970) and New Horizons in Housing (1972).
Plaintiffs represent the minority group poor (black and Hispanic)[3] seeking such quarters. But they are not the only category of persons barred from so many municipalities by reason of restrictive land use regulations. We have reference to young and elderly couples, single persons and large, growing families not in the poverty class, but who still cannot afford the only kinds of housing realistically permitted in most places relatively high-priced, single-family detached dwellings on sizeable lots and, in some municipalities, expensive apartments. We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel's land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality's counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility.
*160 As already intimated, the issue here is not confined to Mount Laurel. The same question arises with respect to any number of other municipalities of sizeable land area outside the central cities and older built-up suburbs of our North and South Jersey metropolitan areas (and surrounding some of the smaller cities outside those areas as well) which, like Mount Laurel, have substantially shed rural characteristics and have undergone great population increase since World War II, or are now in the process of doing so, but still are not completely developed and remain in the path of inevitable future residential, commercial and industrial demand and growth. Most such municipalities, with but relatively insignificant variation in details, present generally comparable physical situations, courses of municipal policies, practices, enactments and results and human, governmental and legal problems arising therefrom. It is in the context of communities now of this type or which become so in the future, rather than with central cities or older built-up suburbs or areas still rural and likely to continue to be for some time yet, that we deal with the question raised.
Extensive oral and documentary evidence was introduced at the trial, largely informational, dealing with the development of Mount Laurel, including the nature and effect of municipal regulation, the details of the region of which it is a part and the recent history thereof, and some of the basics of housing, special reference being directed to that for low and moderate income families. The record has been supplemented by figures, maps, studies and literature furnished or referred to by counsel and the amici, so that the court has a clear picture of land use regulation and its effects in the developing municipalities of the state.
This evidence was not contradicted by the township, except in a few unimportant details. Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and exclusion *161 of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did.
I
The Facts
Mount Laurel is a flat, sprawling township, 22 square miles, or about 14,000 acres, in area, on the west central edge of Burlngton County. It is roughly triangular in shape, with its base, approximately eight miles long, extending in a northeasterly-southwesterly direction roughly parallel with and a few miles east of the Delaware River. Part of its southerly side abuts Cherry Hill in Camden County. That section of the township is about seven miles from the boundary line of the city of Camden and not more than 10 miles from the Benjamin Franklin Bridge crossing the river to Philadelphia.
In 1950, the township had a population of 2817, only about 600 more people than it had in 1940. It was then, as it had been for decades, primarily a rural agricultural area with no sizeable settlements or commercial or industrial enterprises. The populace generally lived in individual houses scattered along country roads. There were several pockets of poverty, with deteriorating or dilapidated housing (apparently 300 or so units of which remain today in equally poor condition). After 1950, as in so many other municipalities similarly situated, residential development and some commerce and industry began to come in. By 1960 the population had almost doubled to 5249 and by 1970 had more than doubled again to 11,221. These new residents were, of course, "outsiders" from the nearby central cities and older suburbs or from more distant places drawn *162 here by reason of employment in the region. The township is now definitely a part of the outer ring of the South Jersey metropolitan area, which area we define as those portions of Camden, Burlington and Gloucester Counties within a semicircle having a radius of 20 miles or so from the heart of Camden city. And 65% of the township is still vacant land or in agricultural use.
The growth of the township has been spurred by the construction or improvement of main highways through or near it. The New Jersey Turnpike, and now route I-295, a freeway paralleling the turnpike, traverse the municipality near its base, with the main Camden-Philadelphia turnpike interchange at the corner nearest Camden. State route 73 runs at right angles to the turnpike at the interchange and route 38 slices through the northeasterly section. Routes 70 and U.S. 130 are not far away. This highway network gives the township a most strategic location from the standpoint of transport of goods and people by truck and private car. There is no other means of transportation.
The location and nature of development has been, as usual, controlled by the local zoning enactments. The general ordinance presently in force, which was declared invalid by the trial court, was adopted in 1964. We understand that earlier enactments provided, however, basically the same scheme but were less restrictive as to residential development. The growth pattern dictated by the ordinance is typical.
Under the present ordinance, 29.2% of all the land in the township, or 4,121 acres, is zoned for industry. This amounts to 2,800 more acres than were so zoned by the 1954 ordinance. The industrial districts comprise most of the land on both sides of the turnpike and routes I-295, 73 and 38. Only industry meeting specified performance standards is permitted. The effect is to limit the use substantially to light manufacturing, research, distribution of goods, offices and the like. Some non-industrial uses, such as agriculture, *163 farm dwellings, motels, a harness racetrack, and certain retail sales and service establishments, are permitted in this zone. At the time of trial no more than 100 acres, mostly in the southwesterly corner along route 73 adjacent to the turnpike and I-295 interchanges, were actually occupied by industrial uses. They had been constructed in recent years, mostly in several industrial parks, and involved tax ratables of about 16 million dollars. The rest of the land so zoned has remained undeveloped. If it were fully utilized, the testimony was that about 43,500 industrial jobs would be created, but it appeared clear that, as happens in the case of so many municipalities, much more land has been so zoned than the reasonable potential for industrial movement or expansion warrants. At the same time, however, the land cannot be used for residential development under the general ordinance.
The amount of land zoned for retail business use under the general ordinance is relatively small 169 acres, or 1.2% of the total. Some of it is near the turnpike interchange; most of the rest is allocated to a handful of neighborhood commercial districts. While the greater part of the land so zoned appears to be in use, there is no major shopping center or concentrated retail commercial area "downtown" in the township.
The balance of the land area, almost 10,000 acres, has been developed until recently in the conventional form of major subdivisions. The general ordinance provides for four residential zones, designated R-1, R-1D, R-2 and R-3. All permit only single-family, detached dwellings, one house per lot the usual form of grid development. Attached town-houses, apartments (except on farms for agricultural workers) and mobile homes are not allowed anywhere in the township under the general ordinance. This dwelling development, resulting in the previously mentioned quadrupling of the population, has been largely confined to the R-1 and R-2 districts in two sections the northeasterly and southwesterly corners adjacent to the turnpike and other major highways. The result has been quite intensive development of these sections, *164 but at a low density. The dwellings are substantial; the average value in 1971 was $32,500 and is undoubtedly much higher today.
The general ordinance requirements, while not as restrictive as those in many similar municipalities, nonetheless realistically allow only homes within the financial reach of persons of at least middle income. The R-1 zone requires a minimum lot area of 9,375 square feet, minimum lot width of 75 feet at the building line, and a minimum dwelling floor area of 1,100 square feet if a one-story building and 1,300 square feet if one and one-half stories or higher. Originally this zone comprised about 2,500 acres. Most of the subdivisions have been constructed within it so that only a few hundred acres remain (the testimony was at variance as to the exact amount). The R-2 zone, comprising a single district of 141 acres in the northeasterly corner, has been completely developed. While it only required a minimum floor area of 900 square feet for a one-story dwelling, the minimum lot size was 11,000 square feet; otherwise the requisites were the same as in the R-1 zone.
The general ordinance places the remainder of the township, outside of the industrial and commercial zones and the R-1D district (to be mentioned shortly), in the R-3 zone. This zone comprises over 7,000 acres slightly more than half of the total municipal area practically all of which is located in the central part of the township extending southeasterly to the apex of the triangle. The testimony was that about 4,600 acres of it then remained available for housing development. Ordinance requirements are substantially higher, however, in that the minimum lot size is increased to about one-half acre (20,000 square feet). (We understand that sewer and water utilities have not generally been installed, but, of course, they can be.) Lot width at the building line must be 100 feet. Minimum dwelling floor area is as in the R-1 zone. Presently this section is primarily in agricultural use; it contains as well most of the municipality's substandard housing.
*165 The R-1D district was created by ordinance amendment in 1968. The area is composed of a piece of what was formerly R-3 land in the western part of that zone. The district is a so-called "cluster" zone. See generally 2 Williams, American Planning Law: Land Use and the Police Power, §§ 47.01-47.05 (1974). That writer defines the concept as follows:
* * * Under the usual cluster-zoning provisions, both the size and the width of individual residential lots in a large (or medium-sized) development may be reduced, provided (usually) that the overall density of the entire tract remains constant provided, that is, that an area equivalent to the total of the areas thus "saved" from each individual lot is pooled and retained as common open space. The most obvious advantages include a better use of many sites, and relief from the monotony of continuous development. § 47.01, pp. 212-213.
Here this concept is implemented by reduction of the minimum lot area from 20,000 square feet required in the R-3 zone to 10,000 square feet (12,000 square feet for corner lots) but with the proviso that one-family houses the single permitted dwelling use "shall not be erected in excess of an allowable development density of 2.25 dwelling units per gross acre." The minimum lot width at the building line must be 80 feet and the minimum dwelling floor area is the same as in the R-3 zone. The amendment further provides that the developer must set aside and dedicate to the municipality a minimum of 15% and a maximum of 25% of the total acreage for such public uses as may be required by the Planning Board, including "but not limited to school sites, parks, playgrounds, recreation areas, public buildings, public utilities." Some dwelling development has taken place in this district, the exact extent of which is not disclosed by the record. It is apparent that the dwellings are comparable in character and value to those in the other residential zones. The testimony was that 486 acres remained available in the district.[4]
*166 A variation from conventional development has recently occurred in some parts of Mount Laurel, as in a number of other similar municipalities, by use of the land use regulation device known as "planned unit development" (PUD). This scheme differs from the traditional in that the type, density and placement of land uses and buildings, instead of being detailed and confined to specified districts by local legislation in advance, is determined by contract, or "deal," as to each development between the developer and the municipal administrative authority, under broad guidelines laid down by state enabling legislation and an implementing local ordinance. The stress is on regulation of density and permitted mixture of uses within the same area, including various kinds of living accommodations with or without commercial and industrial enterprises. The idea may be basically thought of as the creation of "new towns" in virgin territory, full-blown or in miniature, although most frequently the concept has been limited in practice, as in Mount Laurel, to residential developments of various sizes having some variety of housing and perhaps some retail establishments to serve the inhabitants. See generally, 2 Williams, supra, §§ 48.01 to 48.12; cf. Cheney v. Village 2 at New Hope, Inc., 429 Pa. 626, 241 A.2d 81, 82-83 (1968).
New Jersey passed such enabling legislation in 1967 (L. 1967, c. 61, amended c. 286, N.J.S.A. 40:55-54, et seq.), which closely follows a model act found in 114 U. Pa. L. Rev. 140 (1965), and Mount Laurel adopted the implementing enactment as a supplement to its general zoning ordinance in December of that year. While the ordinance was repealed early in 1971, the township governing body in the interim had approved four PUD projects, which were specifically saved from extinction by the repealer.[5]
*167 These projects, three in the southwesterly sector and one in the northeasterly sector, are very substantial and involve at least 10,000 sale and rental housing units of various types to be erected over a period of years. Their bounds were created by agreement rather than legislative specification on the zoning map, invading industrial, R-1, R-1D, R-3 and even flood plain zones. If completed as planned, they will in themselves ultimately quadruple the 1970 township population, but still leave a good part of the township undeveloped. (The record does not indicate how far development in each of the projects has progressed.) While multi-family housing in the form of rental garden, medium rise and high rise apartments and attached townhouses is for the first time provided for, as well as single-family detached dwellings for sale, it is not designed to accommodate and is beyond the financial reach of low and moderate income families, especially those with young children. The aim is quite the contrary; as with the single-family homes in the older conventional subdivisions, only persons of medium and upper income are sought as residents.
A few details will furnish sufficient documentation. Each of the resolutions of tentative approval of the projects contains *168 a similar fact finding to the effect that the development will attract a highly educated and trained population base to support the nearby industrial parks in the township as well as the business and commercial facilities. The approvals also sharply limit the number of apartments having more than one bedroom. Further, they require that the developer must provide in its leases that no school-age children shall be permitted to occupy any one-bedroom apartment and that no more than two such children shall reside in any two-bedroom unit. The developer is also required, prior to the issuance of the first building permit, to record a covenant, running with all land on which multi-family housing is to be constructed, providing that in the event more than .3 school children per multi-family unit shall attend the township school system in any one year, the developer will pay the cost of tuition and other school expenses of all such excess numbers of children. In addition, low density, required amenities, such as central air conditioning, and specified developer contributions help to push rents and sales prices to high levels. These contributions include fire apparatus, ambulances, fire houses, and very large sums of money for educational facilities, a cultural center and the township library.[6]
Still another restrictive land use regulation was adopted by the township through a supplement to the general zoning ordinance enacted in September 1972 creating a new zone, R-4, Planned Adult Retirement Community (PARC). The supplementary enactment designated a sizeable area as the zone perhaps 200 acres carved out of the R-1D and R-3 districts in the southwesterly sector. The enactment recited a critical shortage of adequate housing in the township suitable "for the needs and desires of senior citizens and certain other adults over the age of 52." The permission was essentially for single ownership development of the zone for multi-family *169 housing (townhouses and apartments), thereafter to be either rented or sold as cooperatives or condominiums. The extensive development requirements detailed in the ordinance make it apparent that the scheme was not designed for, and would be beyond the means of, low and moderate income retirees. The highly restricted nature of the zone is found in the requirement that all permanent residents must be at least 52 years of age (except a spouse, immediate family member other than a child, live-in domestic, companion or nurse). Children are limited to a maximum of one, over age 18, residing with a parent and there may be no more than three permanent residents in any one dwelling unit.[7]
All this affirmative action for the benefit of certain segments of the population is in sharp contrast to the lack of action, and indeed hostility, with respect to affording any opportunity for decent housing for the township's own poor living in substandard accommodations, found largely in the section known as Springville (R-3 zone). The 1969 Master Plan Report recognized it and recommended positive action. The continuous official reaction has been rather a negative policy of waiting for dilapidated premises to be vacated and then forbidding further occupancy. An earlier non-governmental effort to improve conditions had been effectively thwarted. In 1968 a private non-profit association sought to build subsidized, multi-family housing in the Springville section with funds to be granted by a higher level governmental agency. Advance municipal approval of the project was required. The Township Committee responded with a purportedly approving resolution, which found a need for "moderate" income housing in the area, but went on to specify that such housing must be constructed subject to all zoning, planning, building and other applicable ordinances and codes. This meant single-family detached dwellings on 20,000 square foot lots. (Fear was also *170 expressed that such housing would attract low income families from outside the township.) Needless to say, such requirements killed realistic housing for this group of low and moderate income families.[8]
The record thoroughly substantiates the findings of the trial court that over the years Mount Laurel "has acted affirmatively to control development and to attract a selective type of growth" (119 N.J. Super. at 168) and that "through its zoning ordinances has exhibited economic discrimination in that the poor have been deprived of adequate housing and the opportunity to secure the construction of subsidized housing, and has used federal, state, county and local finances and resources[9] solely for the betterment of middle and upper-income persons." (119 N.J. Super. at 178).
There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property (Mount Laurel is not a high tax municipality) and that the policy was carried out without regard for nonfiscal considerations with respect to people, either within or without its boundaries. This conclusion is demonstrated not only by what was done and what happened, as we have related, but also by innumerable direct statements of municipal officials at public meetings over the years which are found *171 in the exhibits. The trial court referred to a number of them. 119 N.J. Super. at 169-170. No official testified to the contrary.
This policy of land use regulation for a fiscal end derives from New Jersey's tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality's children. The latter expense is much the largest, so, basically, the fewer the school children, the lower the tax rate. Sizeable industrial and commercial ratables are eagerly sought and homes and the lots on which they are situate are required to be large enough, through minimum lot sizes and minimum floor areas, to have substantial value in order to produce greater tax revenues to meet school costs. Large families who cannot afford to buy large houses and must live in cheaper rental accommodations are definitely not wanted, so we find drastic bedroom restrictions for, or complete prohibition of, multi-family or other feasible housing for those of lesser income.
This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost every one acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing. There has been no effective intermunicipal or area planning or land use regulation. All of this is amply demonstrated by the evidence in this case as to Camden, Burlington and Gloucester counties. As to the similar situation generally in the state, see New Jersey Department of Community Affairs, Division of State and Regional Planning, Land Use Regulation, The Residential Land Supply (April 1972) (a study assembling and examining the nature and extent of municipal zoning practices in 16 counties as affecting residential land available for low and moderate income housing) *172 and Williams and Norman, Exclusionary Land Use Controls: The Case of North-Eastern New Jersey, 22 Syracuse L. Rev. 475, 486-487 (1971). One incongruous result is the picture of developing municipalities rendering it impossible for lower paid employees of industries they have eagerly sought and welcomed with open arms (and, in Mount Laurel's case, even some of its own lower paid municipal employees) to live in the community where they work.
The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorating housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas.
The situation has become exactly the opposite since the end of World War II. Much industry and retail business, and even the professions, have left the cities. Camden is a typical example. The testimonial and documentary evidence in this case as to what has happened to that city is depressing indeed. For various reasons, it lost thousands of jobs between 1950 and 1970, including more than half of its manufacturing jobs (a reduction from 43,267 to 20,671, while all jobs in the entire area labor market increased from 94,507 to 197,037). A large segment of retail business faded away with the erection of large suburban shopping centers. The economically better situated city residents helped fill up the miles of sprawling new housing developments, not fully served by public transit. In a society which *173 came to depend more and more on expensive individual motor vehicle transportation for all purposes, low income employees very frequently could not afford to reach outlying places of suitable employment and they certainly could not afford the permissible housing near such locations. These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a consequent critical erosion of the city tax base and inability to provide the amount and quality of those governmental services education, health, police, fire, housing and the like so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with the other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing.
II
The Legal Issue
The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for the various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources. Necessarily implicated are the broader questions of the right of such municipalities to limit the kinds of available housing and of any obligation to make possible a variety and choice of types of living accommodations.
*174 We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do.[10]
We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs. We begin with some fundamental principles as applied to the scene before us.
Land use regulation is encompassed within the state's police power. Our constitutions have expressly so provided since an amendment in 1927. That amendment, now Art. IV, sec. VI, par. 2 of the 1947 Constitution, authorized legislative delegation of the power to municipalities (other than counties), but reserved the legislative right to repeal or alter the delegation (which we take it means repeal or alteration in whole or in part). The legislative delegation of the zoning power followed in 1928, by adoption of the standard zoning enabling act, now found, with subsequent amendments, in N.J.S.A. 40:55-30 to 51.
It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws. These *175 are inherent in Art. I, par. 1 of our Constitution,[11] the requirements of which may be more demanding than those of the federal Constitution. Robinson v. Cahill, 62 N.J. 473, 482, 490-492 (1973); Washington National Insurance Co. v. Board of Review, 1 N.J. 545, 553-554 (1949). It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare. (The last term seems broad enough to encompass the others). Conversely, a zoning enactment which is contrary to the general welfare is invalid. See generally, e.g., Roselle v. Wright, 21 N.J. 400, 409-410 (1956); Katobimar Realty Co. v. Webster, 20 N.J. 114, 122-123 (1955); Schmidt v. Board of Adjustment of Newwark, 9 N.J. 405, 413-419 (1952); Collins v. Board of Adjustment of Margate City, 3 N.J. 200, 206 (1949). Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N.J.S.A. 40:55-32. Their inclusion therein really adds little; the same requirement would exist even if they were omitted. If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say "theoretically" because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import. Cf. Tidewater Oil Co. v. Mayor and Council of the Borough of Carteret, 44 N.J. 338, 343 (1965). We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category.
*176 The demarcation between the valid and the invalid in the field of land use regulation is difficult to determine, not always clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926):
The ordinance now under review and all similar laws and regulations must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U.S. at 387, 47 S.Ct. at 118, 71 L.Ed. at 310).
This court has also said as much and has plainly warned, even in cases decided some years ago sanctioning a broad measure of restrictive municipal decisions, of the inevitability of change in judicial approach and view as mandated by change in the world around us. Lionshead Lake, Inc. v. Township of Wayne, 10 N.J. 165, 172-173 (1952), appeal dismissed 344 U.S. 919, 73 S.Ct. 386, 97 L.Ed. 708 (1953) (approving requirement of minimum floor area for dwellings, the same in all residential districts); Fischer v. Township of Bedminster, 11 N.J. 194, 205 (1952) (sanctioning minimum lot area of five acres in a then rural municipality); Pierro v. Baxendale, 20 N.J. 17, 29 (1955) (holding valid an ordinance permitting boarding and rooming houses, but not hotels and motels, in residential districts); Vickers v. Township Committee of Gloucester Township, 37 N.J. 232, 250 (1962), cert. den. 371 U.S. 233, 83 S.Ct. 326, 9 L.Ed.2d 495 (1963) (sustaining ordinance provisions prohibiting mobile home parks throughout the township). The warning is perhaps best put in Pierro:
We are aware of the extensive academic discussion following the decisions in the Lionshead and Bedminster cases, supra, and the suggestion that the very broad principles which they embody may intensify dangers of economic segregation which even the more traditional modes of zoning entail * * *. In the light of existing population and land conditions within our State these [municipal zoning] *177 powers may fairly be exercised without in anywise endangering the needs or reasonable expectations of any segments of our people. If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed. (20 N.J. at 29).
The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Frequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many cases have dealt only with regulations having little, if any, outside impact where the local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state's citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served.
This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to "* * * the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way." (272 U.S. at 390, 47 S.Ct. at 119, 71 L.Ed. at 311). Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Cresskill, 1 N.J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:
* * * The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or *178 of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N.J. at 513).
See, to the same general effect, Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 247-249 (1954).
In recent years this court has once again stressed this nonlocal approach to the meaning of "general welfare" in cases involving zoning as to facilities of broad public benefit as distinct from purely parochial interest. See Roman Catholic Diocese of Newark v. Ho-Ho-Kus Borough, 42 N.J. 556, 566 (1964), id., 47 N.J. 211 (1966). In this case we pointed out local action with respect to private educational projects largely benefitting those residing outside the borough must be exercised "with due concern for values which transcend municipal lines." (47 N.J. at 218). Likewise in Kunzler v. Hoffman, 48 N.J. 277 (1966), a case unsuccessfully attacking a use variance granted a private hospital to serve the emotionally disturbed in a wide area of the state, we rejected the contention that local zoning authorities are limited to a consideration of only those benefits to the general welfare which would be received by residents of the municipality, pointing out that "general welfare" in the context there involved "comprehends the benefits not merely within municipal boundaries but also those to the regions of the State relevant to the public interest to be served." 48 N.J. at 288.
This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms of land use regulation which that relationship mandates. There cannot be the slightest doubt that shelter, along with food, are the most basic human needs. See Robinson v. Cahill, supra (62 N.J. at 483). "The question of whether a citizenry has adequate and sufficient housing is certainly one of the prime considerations in assessing the general health and welfare of that body." New Jersey Mortgage Finance Agency v. *179 McCrane, 56 N.J. 414, 420 (1970). Cf. DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428, 442 (1970). The same thought is implicit in the legislative findings of an extreme, long-time need in this state for decent low and moderate income housing, set forth in the numerous statutes providing for various agencies and methods at both state and local levels designed to aid in alleviation of the need. See, e.g., Mortgage Finance Agency Law, N.J.S.A. 17:1B-5 (L. 1970, c. 38); Department of Community Affairs Demonstration Grant Law, N.J.S.A. 52:27D-61 (L. 1967, c. 82); Local Housing Authorities Law, N.J.S.A. 55:14A-2 (L. 1938, c. 19); Housing Co-operation Law, N.J.S.A. 55:14B-2 (L. 1938, c. 20); Redevelopment Companies Law, N.J.S.A. 55:14D-2 (L. 1944, c. 169); State Housing Law, N.J.S.A. 55:14H-2 (L. 1949, c. 303); Senior Citizens Nonprofit Rental Housing Tax Law, N.J.S.A. 55:14I-2 (L. 1965, c. 92); Housing Finance Agency Law, N.J.S.A. 55:14J-2 (L. 1967, c. 81); Limited-Dividend Nonprofit Housing Corporations or Associations Law, N.J.S.A. 55:16-2 (as amended L. 1967, c. 112).
It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it *180 may not adopt regulations or policies which thwart or preclude that opportunity.
It is also entirely clear, as we pointed out earlier, that most developing municipalities, including Mount Laurel, have not met their affirmative or negative obligations, primarily for local fiscal reasons. Governor Cahill summed it up in his 1970 special legislative message, A Blueprint for Housing in New Jersey, supra, at 10-11:
We have reached a point in the State where the zoning criteria in many municipalities is two-fold; dwelling units of all kinds must be curtailed; industrial development must be encouraged. This is a far cry from the original concept of municipal zoning and planning * * *. The fundamental objective of (the) constitutional amendment and the implementing Municipal Zoning Enabling Act was local control of zoning and planning for the purpose of effecting the public good * * *. The original concept of local planning and zoning never contemplated prohibition in lieu of regulation nor the welfare of the few in place of the general welfare.
The exclusionary details are fully set forth in Land Use Regulation, The Residential Land Supply, previously referred to.
In sum, we are satisfied beyond any doubt that, by reason of the basic importance of appropriate housing and the long-standing pressing need for it, especially in the low and moderate cost category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all.
We have spoken of this obligation of such municipalities as "presumptive." The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has *181 not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. Robinson v. Cahill, supra, 62 N.J. at 491-492, and cases cited therein. The substantive aspect of "presumptive" relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality's burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances.
We turn to application of these principles in appraisal of Mount Laurel's zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities.
The township's general zoning ordinance (including the cluster zone provision) permits, as we have said, only one type of housing single-family detached dwellings. This means that all other types multi-family including garden apartments and other kinds housing more than one family, town (row) houses, mobile home parks are prohibited.[12]*182 Concededly, low and moderate income housing has been intentionally excluded. While a large percentage of the population living outside of cities prefers a one-family house on its own sizeable lot, a substantial proportion do not for various reasons. Moreover, single-family dwellings are the most expensive type of quarters and a great number of families cannot afford them.[13] Certainly they are not pecuniarily feasible for low and moderate income families, most young people and many elderly and retired persons, except for some of moderate income by the use of low cost construction on small lots.
As previously indicated, Mount Laurel has allowed some multi-family housing by agreement in planned unit developments, but only for the relatively affluent and of no benefit to low and moderate income families. And even here, the contractual agreements between municipality and developer sharply limit the number of apartments having more than one bedroom.[14] While the township's PUD ordinance has been repealed, we mention the subject of bedroom restriction because, assuming the overall validity of the PUD technique (see footnote (5), supra), the measure could be *183 reenacted and the subject is of importance generally. The design of such limitations is obviously to restrict the number of families in the municipality having school age children and thereby keep down local education costs.[15] Such restrictions are so clearly contrary to the general welfare as not to require further discussion. Cf. Molino v. Mayor and Council of Borough of Glassboro, 116 N.J. Super. 195 (Law Div. 1971).
Mount Laurel's zoning ordinance is also so restrictive in its minimum lot area, lot frontage and building size requirements, earlier detailed, as to preclude single-family housing for even moderate income families. Required lot area of at least 9,375 square feet in one remaining regular residential zone and 20,000 square feet (almost half an acre) in the other, with required frontage of 75 and 100 feet, respectively, cannot be called small lots and amounts to low density zoning, very definitely increasing the cost of purchasing and improving land and so affecting the cost of housing.[16] As to building size, the township's general requirements of a minimum dwelling floor area of 1,100 square feet for all one-story houses and 1,300 square feet for all of one and one-half stories or higher is without regard to required minimum lot size or frontage or the number of occupants (see Sente v. Mayor *184 and Municipal Council of City of Clifton, 66 N.J. 204, 208-209 (1974)). In most aspects these requirements are greater even than those approved in Lionshead Lake, Inc. v. Township of Wayne, supra, 10 N.J. 165, almost 24 years ago and before population decentralization, outer suburban development and exclusionary zoning had attained today's condition. See also Williams and Wacks, Segregation of Residential Areas Along Economic Lines: Lionshead Lake Revisited, 1969 Wis. L. Rev. 827.[17] Again it is evident these requirements increase the size and so the cost of housing. The conclusion is irresistible that Mount Laurel permits only such middle and upper income housing as it believes will have sufficient taxable value to come close to paying its own governmental way.
Akin to large lot, single-family zoning restricting the population is the zoning of very large amounts of land for industrial and related uses. Mount Laurel has set aside almost 30% of its area, over 4,100 acres, for that purpose; the only residential use allowed is for farm dwellings. In almost a decade only about 100 acres have been developed industrially. Despite the township's strategic location for motor transportation purposes, as intimated earlier, it seems plain that the likelihood of anywhere near the whole of the zoned area being used for the intended purpose in the foreseeable future is remote indeed and that an unreasonable amount of land has thereby been removed from possible residential development, again seemingly for local fiscal reasons.[18]
*185 Without further elaboration at this point, our opinion is that Mount Laurel's zoning ordinance is presumptively contrary to the general welfare and outside the intended scope of the zoning power in the particulars mentioned. A facial showing of invalidity is thus established, shifting to the municipality the burden of establishing valid superseding reasons for its action and non-action.[19] We now examine the reasons it advances.
The township's principal reason in support of its zoning plan and ordinance housing provisions, advanced especially strongly at oral argument, is the fiscal one previously adverted to, i.e., that by reason of New Jersey's tax structure which substantially finances municipal governmental and educational costs from taxes on local real property, every municipality may, by the exercise of the zoning power, allow only such uses and to such extent as will be beneficial to the local tax rate. In other words, the position is that any municipality may zone extensively to seek and encourage the "good" tax ratables of industry and commerce, and limit the permissible types of housing to those having the fewest school children or to those providing sufficient value to attain or approach paying their own way taxwise.
We have previously held that a developing municipality may properly zone for and seek industrial ratables to create a better economic balance for the community vis-a-vis educational and governmental costs engendered by residential development, provided that such was "* * * done reasonably as part of and in furtherance of a legitimate comprehensive plan for the zoning of the entire municipality." Gruber v. Mayor and Township Committee of Raritan Township, 39 N.J. 1, 9-11 (1962). We adhere *186 to that view today. But we were not there concerned with, and did not pass upon, the validity of municipal exclusion by zoning of types of housing and kinds of people for the same local financial end. We have no hesitancy in now saying, and do so emphatically, that, considering the basic importance of the opportunity for appropriate housing for all classes of our citizenry, no municipality may exclude or limit categories of housing for that reason or purpose. While we fully recognize the increasingly heavy burden of local taxes for municipal governmental and school costs on homeowners, relief from the consequences of this tax system will have to be furnished by other branches of government. It cannot legitimately be accomplished by restricting types of housing through the zoning process in developing municipalities.
The propriety of zoning ordinance limitations on housing for ecological or environmental reasons seems also to be suggested by Mount Laurel in support of the one-half acre minimum lot size in that very considerable portion of the township still available for residential development. It is said that the area is without sewer or water utilities and that the soil is such that this plot size is required for safe individual lot sewage disposal and water supply. The short answer is that, this being flat land and readily amenable to such utility installations, the township could require them as improvements by developers or install them under the special assessment or other appropriate statutory procedure. The present environmental situation of the area is, therefore, no sufficient excuse in itself for limiting housing therein to single-family dwellings on large lots. Cf. National Land and Investment Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1965). This is not to say that land use regulations should not take due account of ecological or environmental factors or problems. Quite the contrary. Their importance, at last being recognized, should always be considered. Generally only a relatively small portion of a developing *187 municipality will be involved, for, to have a valid effect, the danger and impact must be substantial and very real (the construction of every building or the improvement of every plot has some environmental impact) not simply a makeweight to support exclusionary housing measures or preclude growth and the regulation adopted must be only that reasonably necessary for public protection of a vital interest. Otherwise difficult additional problems relating to a "taking" of a property owner's land may arise. See AMG Associates v. Township of Springfield, 65 N.J. 101, 112, n. (4) (1974).
By way of summary, what we have said comes down to this. As a developing municipality, Mount Laurel must, by its land use regulations, make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course including those of low and moderate income. It must permit multi-family housing, without bedroom or similar restrictions, as well as small dwellings on very small lots, low cost housing of other types and, in general, high density zoning, without artificial and unjustifiable minimum requirements as to lot size, building size and the like, to meet the full panoply of these needs. Certainly when a municipality zones for industry and commerce for local tax benefit purposes, it without question must zone to permit adequate housing within the means of the employees involved in such uses. (If planned unit developments are authorized, one would assume that each must include a reasonable amount of low and moderate income housing in its residential "mix," unless opportunity for such housing has already been realistically provided for elsewhere in the municipality.) The amount of land removed from residential use by allocation to industrial and commercial purposes must be reasonably related to the present and future potential for such purposes. In other words, *188 such municipalities must zone primarily for the living welfare of people and not for the benefit of the local tax rate.[20]
We have earlier stated that a developing municipality's obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to "* * * the municipality's fair share of the present and prospective regional need therefor."[21] Some comment on *189 that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than in another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be on an individual municipal basis, rather than regionally.[22] So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)
The composition of the applicable "region" will necessarily vary from situation to situation and probably no hard and fast rule will serve to furnish the answer in every case. Confinement *190 to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable. (This is not to say that a developing municipality can ignore a demand for housing within its boundaries on the part of people who commute to work in another state.) Here we have already defined the region at present as "those portions of Camden, Burlington and Gloucester Counties within a semicircle having a radius of 20 miles or so from the heart of Camden City." The concept of "fair share" is coming into more general use and, through the expertise of the municipal planning adviser, the county planning boards and the state planning agency, a reasonable figure for Mount Laurel can be determined, which can then be translated to the allocation of sufficient land therefor on the zoning map. See generally, New Jersey Trends, ch. 27, Listokin, Fair Share Housing Distribution: An Idea Whose Time Has Come?, p. 353.[23] We may add that we think that, in arriving at such a determination, the type of information and estimates, which the trial judge (119 N.J. Super. at 178) directed the township to compile and furnish to him, concerning the housing needs of persons of low and moderate income now or formerly residing in the township in substandard dwellings and those presently employed or reasonably expected to be employed therein, will be pertinent.
There is no reason why developing municipalities like Mount Laurel, required by this opinion to afford the opportunity for all types of housing to meet the needs of various categories of people, may not become and remain attractive, viable communities providing good living and adequate services for all their residents in the kind of atmosphere which a democracy and free institutions demand. They can have industrial sections, commercial sections and sections for every kind of housing from low cost and multi-family to lots *191 of more than an acre with very expensive homes. Proper planning and governmental cooperation can prevent over-intensive and too sudden development, insure against future suburban sprawl and slums and assure the preservation of open space and local beauty. We do not intend that developing municipalities shall be overwhelmed by voracious land speculators and developers if they use the powers which they have intelligently and in the broad public interest. Under our holdings today, they can be better communities for all than they previously have been.
III
The Remedy
As outlined at the outset of this opinion, the trial court invalidated the zoning ordinance in toto and ordered the township to make certain studies and investigations and to present to the court a plan of affirmative public action designed "to enable and encourage the satisfaction of the indicated needs" for township related low and moderate income housing. Jurisdiction was retained for judicial consideration and approval of such a plan and for the entry of a final order requiring its implementation.
We are of the view that the trial court's judgment should be modified in certain respects. We see no reason why the entire zoning ordinance should be nullified. Therefore we declare it to be invalid only to the extent and in the particulars set forth in this opinion. The township is granted 90 days from the date hereof, or such additional time as the trial court may find it reasonable and necessary to allow, to adopt amendments to correct the deficiencies herein specified. It is the local function and responsibility, in the first instance at least, rather than the court's, to decide on the details of the same within the guidelines we have laid down. If plaintiffs desire to attack such amendments, they may do so by supplemental complaint filed in this cause within 30 days of the final adoption of the amendments.
*192 We are not at all sure what the trial judge had in mind as ultimate action with reference to the approval of a plan for affirmative public action concerning the satisfaction of indicated housing needs and the entry of a final order requiring implementation thereof. Courts do not build housing nor do municipalities. That function is performed by private builders, various kinds of associations, or, for public housing, by special agencies created for that purpose at various levels of government. The municipal function is initially to provide the opportunity through appropriate land use regulations and we have spelled out what Mount Laurel must do in that regard. It is not appropriate at this time, particularly in view of the advanced view of zoning law as applied to housing laid down by this opinion, to deal with the matter of the further extent of judicial power in the field or to exercise any such power. See, however, Pascack Association v. Mayor and Council of Township of Washington, 131 N.J. Super. 195 (Law Div. 1974), and cases therein cited, for a discussion of this question. The municipality should first have full opportunity to itself act without judicial supervision. We trust it will do so in the spirit we have suggested, both by appropriate zoning ordinance amendments and whatever additional action encouraging the fulfillment of its fair share of the regional need for low and moderate income housing may be indicated as necessary and advisable. (We have in mind that there is at least a moral obligation in a municipality to establish a local housing agency pursuant to state law to provide housing for its resident poor now living in dilapidated, unhealthy quarters.) The portion of the trial court's judgment ordering the preparation and submission of the aforesaid study, report and plan to it for further action is therefore vacated as at least premature. Should Mount Laurel not perform as we expect, further judicial action may be sought by supplemental pleading in this cause.
The judgment of the Law Division is modified as set forth herein. No costs.
*193 MOUNTAIN, J. (concurring).
I agree with the conclusions reached in the Court's opinion and essentially with the opinion itself. In one important respect, however, I disagree. The Court rests its decision upon a ground of State constitutional law. I reach the same result by concluding that the term, "general welfare," appearing in N.J.S.A. 40:55-32, can and should properly be interpreted with the same amplitude attributed to that phrase in the opinion of the Court, as well as otherwise in the manner there set forth. I therefore would rest the conclusions we here announce upon an interpretation of the statute, and not upon the State constitution.
Accordingly, since I read the statute without resort to the Constitution to justify, if not compel, our decision, I find it unnecessary to express any view as to the merits of the constitutional argument set forth in the Court's opinion.
PASHMAN, J. (concurring).
With this decision, the Court begins to cope with the dark side of municipal land use regulation the use of the zoning power to advance the parochial interests of the municipality at the expense of the surrounding region and to establish and perpetuate social and economic segregation.
The problem is not a new one. Early opponents of zoning advanced the possibility of such abuse as an argument against allowing municipalities the power to zone. See, e.g., Ambler Realty Co. v. Euclid, 297 F. 307, 316 (N.D. Ohio 1924), rev'd 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Later, even those sympathetic to the goals and methods of zoning began to express concern. See, e.g., Haar, "Zoning for Minimum Standards: The Wayne Township Case," 66 Harv. L. Rev. 1051 (1953). In that spirit, Justice Jacobs wrote for this Court in Pierro v. Baxendale, 20 N.J. 17, 29 (1955):
We are aware of the extensive academic discussion following the decisions in the Lionshead and Bedminster cases, supra, and the suggestion that the very broad principles which they embody may intensify dangers of economic segregation which even the more traditional *194 modes of zoning entail. * * * In the light of existing population and land conditions within our State these powers may fairly be exercised without in anywise endangering the needs or reasonable expectations of any segments of our people. If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed.
The growth of the new suburbs, first as affluent residential communities and, more recently, as sites for commercial and industrial development, leaving persons with low or even moderate incomes housed inadequately in the cities and the older, inner suburbs, far from new sources of employment, magnified the importance of the problem, moving it from the realm of speculation to that of physical and social reality. Justice Hall was among the first to recognize the new significance of the problem in his now classic dissent to Vickers v. Gloucester Tp., 37 N.J. 232, 252 (1962), appeal dismissed 371 U.S. 233, 83 S.Ct. 326, 9 L.Ed.2d 495 (1963). The facts of this case, as well as the information compiled by various governmental agencies, of which the Court may take notice, e.g., Nat'l Comm'n on Urban Problems, Building the American City, H.R. Doc. No. 34, 91st Cong. 1st Sess. 211 (1968); N.J. Dept. of Community Affairs, Land Use Regulation: The Residential Land Supply (1972),[1] demonstrate that judicial action in this area is long overdue.
Therefore, I join in the thoughtful and eloquent majority opinion of Justice Hall. I differ from the majority only in that I would have the Court go farther and faster in its implementation of the principles announced today. The fact that abuses of the municipal zoning power are now widespread and derive from attitudes and premises deeply ingrained in the suburban planning and zoning processes requires that the Court not restrict itself to the facts of this particular case but, rather, lay down broad guidelines for judicial review of municipal zoning decisions which implicate *195 these abuses. Cf. Busik v. Levine, 63 N.J. 351, 363-64 (1973), appeal dismissed 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973).
I
The misuse of the municipal zoning power at issue in this case, generically described as "exclusionary zoning," see, e.g., Brooks, Exclusionary Zoning 3 (Am. Soc'y of Planning Officials 1970), involves two distinct but interrelated practices: (1) the use of the zoning power by municipalities to take advantage of the benefits of regional development without having to bear the burdens of such development; and (2) the use of the zoning power by municipalities to maintain themselves as enclaves of affluence or of social homogeneity.
Both of these practices are improper and to be strongly condemned. They are violative of the requirement, found both in the Constitution of 1947, Art. I, § 1 and the zoning enabling statute itself, N.J.S.A. 40:55-32, that municipal zoning ordinances further the general welfare. Cf. Cresskill v. Dumont, 15 N.J. 238, 247-49 (1954); Duffcon Concrete Products, Inc. v. Cresskill, 1 N.J. 509 (1949). They are inconsistent with the fundamental premise of the New Jersey zoning legislation that zoning is concerned with the physical condition of the municipality not its social condition. In a deeper sense, they are repugnant to the ideals of the pluralistic democracy which America has become.
The motivation for exclusionary zoning practices are deeply embedded in the nature of suburban development. In part, these practices are motivated by fear of the fiscal consequences of opening the community to all social and economic classes. Residents of the municipality anticipate that higher density development will require the construction of additional roads, sewers, and water systems, the provision of additional municipal services, and the increase of school expenditures, all of which must be financed through local property taxes. Often, although not universally, this is a reasonable concern, *196 see generally Sternlieb, Residential Development, Urban Growth and Municipal Costs (1973); N.J. Cty. & Mun. Gov. Study Comm'n, Housing & Suburbs: Fiscal & Social Impact of Multifamily Development (1974), and, as long as these costs are primarily financed through local property taxes, will continue to impel suburban communities to use the zoning laws to encourage commercial development and discourage settlement of less affluent families. But cf. Robinson v. Cahill, 62 N.J. 473 (1973), cert. denied 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973). Insofar as this fiscal situation prevails, suburban communities will find the temptation of exclusionary zoning alluring.
In addition, exclusionary zoning practices are also often motivated by fear of and prejudices against other social, economic, and racial groups.[2]Nat'l Comm. Against Discrimination in Housing, Jobs and Housing: Final Summary Report on the Housing Component, 25-29 (1972). Thus, in a recent survey of suburban municipal leaders, 42.6% identified social and racial conflict as being the chief impact of low and moderate cost subsidized housing on the municipality, while only 21.3% identified fiscal problems as the chief impact. Cty. & Mun. Gov. Study Comm'n, Housing & Suburbs: Fiscal & Social Impact of Multifamily Development, supra at 86. A large proportion felt that even State assumption of the additional municipal costs of a balanced housing policy would not make a great impact on the general unacceptability of low or moderate income housing. Id. at 89. Nor are these attitudes, however disappointing we may find them at this late date, wholly surprising. Many people who settle in suburban areas do so with the specific intention of living in affluent, socially homogeneous communities and of escaping what they perceive to be the problems of the cities. See generally, Clawson, Suburban Land Conversion in the *197 United States, 45 (1971). They do not wish their insular communities to be disturbed by the introduction of diverse social, racial, and economic groups. The experience of the nation over the past 20 years must serve as a caution that, however much we might wish it, we cannot expect rapid, voluntary reversal of such attitudes.
Exclusionary zoning may assume a wide variety of forms. Ultimately, the existence of such practices must be measured by exclusionary intent and actual or potential exclusionary effect. Cf. Hawkins v. Shaw, 437 F.2d 1286 (5 Cir.1971); Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff'd sub nom. Smuck v. Hobson, 132 U.S. App. D.C. 372, 408 F.2d 175 (D.C. Cir.1969). Some zoning devices, however, which are inherently exclusionary in effect or which lend themselves especially readily to abuse have come into wide-spread use and are a revealing gauge of the extent of exclusionary zoning in New Jersey:
1) Minimum house size requirements
As of 1970, 92% of the land in the Department of Community Affairs study area[3] zoned for single family housing was covered by some minimum house size requirement. More than 65% was zoned for houses with 1,000 square feet or more of floor space, and 38.9% for houses of 1,200 square feet or more. By contract, the controversial case of Lionshead *198 Lake v. Wayne Tp., 10 N.J. 165 (1953), appeal dismissed 344 U.S. 919, 73 S.Ct. 386, 97 L.Ed. 708 (1953), upheld a minimum of 768 square feet in all districts. There is wide variation from county to county and within the various counties.[4] In the so-called "outer-ring" counties in northern New Jersey Morris, Somerset, Middlesex, and Monmouth[5] houses of less than 1,000 square feet may be built on only about 10% of the land zoned for single family dwellings. On 77% of the land zoned for single family dwellings, houses must have 1,200 square feet or more of floor space. In the South Jersey outer-ring counties, Burlington, Camden, and Gloucester, the figures are 31.9% and 43.5% respectively.
The effect on the cost of housing of such requirements is obvious. If one assumes construction costs of $20 per square foot of floor space,[6] a 1,000 square foot minimum imposes a corresponding minimum figure of $20,000 upon the portion of the cost of a new house attributable to construction. A recent *199 study of housing costs indicates that floor space is the single most important factor contributing to differences in prices for new housing, even more important than the socio-economic status of the municipality. Sagalyn & Sternlieb, supra at 48.
2) Minimum lot size and minimum frontage requirements
On two-thirds of the land in the Department of Community Affairs study area zoned in 1970 for single family dwellings, houses could not be built on lots of less than an acre. Upon only 5.1% could houses be built on 10,000 square feet or less. Approximately 10% of such land in the outer-ring counties in South Jersey was zoned for 10,000 square foot lots or less; 45.9% was zoned for an acre or more. In the North Jersey outer-ring counties only 1.2% of the land zoned for single family dwellings was available for use as lots of 10,000 square feet or less; 77% was zoned for one acre or larger lots. Here, too, there are wide variations among counties. In Camden, 24.5% of the land was zoned for lots of 10,000 square feet or less, and less than 34% for lots of an acre or more. In Somerset County, only .2% of the land was zoned for lots of 10,000 square feet or less; 85.3% was zoned for lots of an acre or more, and 24.6% was zoned for three acres or more. By way of comparison, the American Public Health Association, a vigorous advocate of high minimum standards, recommends 6,000 square feet as a suitable minimum lot size based upon health considerations. Am. Public Health Ass'n, Planning the Neighborhood, 37 (1948).
Minimum frontage requirements frequently, although not invariably, are found together with minimum lot size requirements. The Residential Land Supply at 21-24. Only 13.5% of the land zoned in 1970 for single family housing in the Department of Community Affairs study area was zoned for 100 foot minimum frontage or less. In that area, 54.3% was zoned for 150 feet or more. This device was widely used in the northern outer-ring counties, where only 5% of the land is zoned for less than 100 foot frontage and 68.4% is zoned for more than 150 feet, but somewhat less widely used in the southern outer-ring counties, where 22.7% of *200 the land was zoned for less than 100 foot frontage and 42.5% was zoned for more than 150 feet.
Analysis of the exclusionary impact of the widespread use of minimum lot size and minimum frontage requirements is a more complex task than that of analyzing minimum building requirements. See generally, Building the American City, supra at 213-15; Williams & Norman, supra at 493-97; Sagalyn & Sternlieb, supra at 6-16, 66-67. There is a significant correlation between lot size and price of housing in areas without sewage service and between frontage and price in areas with sewage service. Sagalyn & Sternlieb, supra at 54-56. At the very least, it can be said with certainty that extensive mapping for large lots or large lot widths drives up the cost of smaller lots and thereby significantly raises the overall price of housing. Williams & Norman, supra at 496-97.
3) Prohibition of multifamily housing
Realistically, much of the housing needs of persons with low or moderate incomes will have to be met through various forms of multifamily housing. Williams & Norman, supra at 481. Hence, restrictions upon the construction of such housing have a highly exclusionary effect. In the Department of Community Affairs study area, construction of multi-family housing was permitted on only 6.2% of the land zoned for residential uses. If six aberrant rural municipalities are disregarded, the percentage falls to 1.1%.[7] In the South Jersey outer-ring counties, 2.7% of such land is zoned for multifamily housing; in the northern outer-ring counties, only 1/2 of 1% is so zoned. There is no land zoned for multi-family *201 housing in Somerset County and only .006% is so zoned in Monmouth County.[8]
4) Bedroom restrictions
The effect of zoning against multifamily dwellings is magnified by restrictions upon the number of bedrooms which may be included in each dwelling unit. In the Department of Community Affairs study area[9] 59% of the already limited area of land zoned for multifamily dwellings is restricted to one-bedroom or efficiency apartments. On only 20.4% of this land is construction of apartments of three or more bedrooms permitted. In addition, in many areas where some construction of larger apartments is permitted, they are limited to a small percentage of any individual development. The Residential Land Supply, supra at 11. In the North Jersey outer-ring counties, 78% of the land zoned for multi-family housing is burdened with bedroom restrictions. In the South Jersey outer-ring counties, 83% of the land zoned for multifamily housing is so restricted. The situation is particularly acute in Burlington County, where 95.8% of the land zoned for multifamily housing has bedroom restrictions.
The Department of Community Affairs concluded from these figures that: *202 * * * [I]n general, the multi-family zoned land is geared to accommodate the housing needs of single people, married couples without children, and retired people, and not geared to the housing needs of the large part of the population living as families with children. [The Residential Land Supply, supra at 12; footnote omitted].
5) Prohibition of mobile homes
Mobile homes offer an alternate, less expensive form of housing. They have long since ceased to be mere "house trailers" but have become an important form of mass produced semi-permanent housing. Indeed, for many persons they may be the only form of new housing available. However, only .1% of the land zoned for residential use in the Department of Community Affairs study area was zoned for use by mobile homes. In the South Jersey outer-ring counties, .3% of the residential land was so zoned, the bulk of it being in Gloucester County, which had twice as much land zoned for mobile homes as the rest of the study area combined. None was zoned for this purpose in Camden County. No land was zoned for mobile homes in the northern outer-ring counties.[10]
6) Overzoning for nonresidential uses
Zoning a great proportion of the developable land in a municipality noncumulatively for nonresidential uses may have the effect of forcing the price of land zoned for residential purposes up beyond the reach of persons with low or moderate incomes. Neither statewide nor countywide figures provide unambiguous evidence of the use of such practice at present in New Jersey. Land Use Regulation, supra at 6-8; Sagalyn & Sternlieb, supra at 96. At the municipal level, the use of such practices is more evident in some areas. Thus, in Mt. Laurel itself, 29.2% of the land in the township, totaling 4,121 acres, is zoned for industrial uses, although *203 only 100 acres within the township has actually been developed for such use in the past 10 years, and there is no reasonable prospect of industrial uses expanding to such proportions.
If anything, these figures underestimate the extent of exclusionary zoning in this State. A wide variety of other techniques may be used to achieve an exclusionary effect. In addition, a municipality need not use all of these techniques to achieve exclusionary ends. Municipalities which have large lot-size and frontage requirements may not have building-size requirements and vice versa. Thus, only 18% of the land in the Department of Community Affairs study area zoned for single family residences permitted houses with less than 1,200 square feet of floor space to be constructed on a 1/4 acre or less site with 100 foot or less frontage.
Forceful judicial intervention is necessitated not only by the already widespread use of exclusionary zoning practices and by the fact that the motivations for such are deeply ingrained in the suburban zoning and planning process, but also by certain extrinsic factors of which the Court may take notice.
First, the United States suffers from an acute national housing shortage. It has been estimated that over 10 million dwelling units would be needed to provide each family in the country with adequate housing. Building the American City, supra at 75. In New Jersey, it has been estimated that there is an immediate need for over 400,000 dwelling units. Dep't of Community Affairs, The Housing Crisis in New Jersey, 1970 (1970).[11] New Jersey, already the second most densely populated state in the country, is experiencing continuing population growth it is estimated that by 1985 the total population will have increased from its 1970 figure of 7,200,000 to about 10,000,000. Special Message to the Legislature by Governor Cahill, A Blueprint for Housing in New *204 Jersey, Dec. 7, 1970, at 1. Housing, particularly in urban areas, is deteriorating. The percentage of substandard units throughout the State increased from 14.8% in 1960 to 17.4% in 1969. In Hudson County, the increase was from 22.3% to 31.3%. Housing Crisis in New Jersey, supra at 14. Some of these units dropped out of the housing market altogether. It has been estimated that simply to keep up with population growth and to replace units which drop out of the housing market, 100,000 new units would have to be constructed in the State each year. Special Message to the Legislature by Governor Cahill, A Blueprint for Housing in New Jersey, Dec. 7, 1970, at 1. In fact, the construction of new housing in the State peaked in 1964, when permits were issued for the construction of 68,078 units, and has declined steadily since then. In 1970, permits were issued for construction of only 39,897 units. Sagalyn & Sternlieb, Zoning & Housing Costs, 98 (1972).
The brunt of this shortage is, of course, borne by persons with low or moderate incomes. As of 1970, it was estimated that not only were half of all low income families in the State obliged to live in inadequate housing, but so were approximately 125,000 families with moderate incomes. Housing Crisis in New Jersey, supra at iv. The median cost of a new single family detached house was $30,000 in the northeastern region of the country in 1969. Sagalyn & Sternlieb, supra at 20. Prices since then have risen precipitously. A study made in 1971 found median new house costs in suburban counties to range from $33,263 in Burlington to $62,500 in Somerset and $67,000 in Bergen. Id. at 22. Such housing was effectively beyond the reach of families with incomes of less than $15,000 per year. Housing Crisis in New Jersey, supra at 42. As of the time of that study, the median family income in New Jersey was $11,407 per year. Analyses by both the federal and state governments, Building the American City, supra at 93; Housing Crisis in New Jersey, supra at 40-43, indicate that the majority of families can afford to neither rent nor buy new housing at current prices. Other *205 authorities estimate that such housing may be beyond the financial capacity of as much as 3/4 of all the families in the State, Sagalyn & Sternlieb, supra at 64, and as much as 90% of those families in which the head of the household is below the age of 35. Nat'l Comm. Against Discrimination in Housing, Housing and Jobs: Final Summary Report on the Housing Component, supra at 22. In theory, low and moderate income families should benefit even from construction of new housing which they themselves cannot afford because such housing creates vacancies which "filter down." In reality, however, most of these vacancies are absorbed by the enormous lag between population growth and new housing construction. Sagalyn & Sternlieb, supra at 42. The housing which does "filter down" to persons with low or moderate incomes is often badly dilapidated and in deteriorating neighborhoods. Building the American City, supra at 11; Clawson, Suburban Land Conversion in the United States, 330 (1970).
The existence of this housing shortage has been amply recognized by all branches of government in this State. See, e.g., Inganamort v. Borough of Fort Lee, 62 N.J. 521 (1973); N.J. Mortgage Finance Agency v. McCrane, 56 N.J. 414 (1970); Marini v. Ireland, 56 N.J. 130 (1970); Mortgage Finance Agency Law, N.J.S.A. 17:1B-5 (L. 1970, c. 38); Department of Community Affairs Demonstration Grant Law, N.J.S.A. 52:27D-61 (L. 1967, c. 82); Special Message to the Legislature by Governor Cahill, A Blueprint for Housing in New Jersey, Dec. 7, 1970; Special Message to the Legislature by Governor Cahill, New Horizons in Housing, Mar. 27, 1972.
Second, the growing movement of commerce and industry to the suburbs is imposing a heavy burden upon employees who are unable to obtain housing in these suburban areas. The trend, which began after World War II and has continued unabated, arises from a variety of causes need for additional land for expansion, automated methods of handling goods which make single-floor layout of manufacturing plants economically desirable, increased access provided *206 by superhighways, desire for aesthetic surroundings, lower suburban property taxes, etc. See generally, Clawson, Suburban Land Conversion in the United States, 40 (1971). Retail establishments have also relocated in the suburbs, taking advantage of the shift in the affluent population, the access provided by suburban highways, and the more attractive surroundings. Id. at 40-41. The result has been a shift of blue-collar jobs from the cities to the suburbs. Id. at 40. Thus in the New York metropolitan region,[12] 75% of the 990,000 new jobs created between 1959 and 1967 were located outside of New York City. Jobs at manufacturing production sites outside New York City increased during that period by 138,440, while such jobs within New York City diminished by 47,110. Of the 100,600 new jobs created in retailing between 1959 and 1965, 95% were located outside of New York City. The new jobs created within New York City in recent years have been confined almost exclusively to services, finance, insurance, communications, utilities, government and manufacturing headquarters offices, all of which are fields with high percentages of white-collar employment. It appears that these trends will continue into the foreseeable future. It has been estimated that between 1970 and 1985 New York City will lose another 137,700 factory jobs, and the suburbs gain 122,700. Nat'l Comm. Against Discrimination in Housing, Jobs and Housing, 6-9 (1970). Job movement in the Philadelphia metropolitan region displays an essentially identical pattern. Nat'l Comm. Against Discrimination in Housing, Impact of Housing Patterns on Job Opportunities, 21-26 (1968). This is, of course, the natural and foreseeable consequence of "fiscal zoning" that encourages the development within a municipality of commercial establishments, which are net tax-providers, and discourages the development of housing for persons *207 who would work in such establishments, on the grounds that they are net revenue-absorbers.
This trend is one that imposes unfair burdens on the worker who is locked out of suburban residential areas. For blue-collar workers, commutation from the cities to suburban job locations is both time-consuming and prohibitively expensive. There is often no access at all by public mass transit and even when such transportation is available in theory it is frequently impractical in fact. Nat'l Comm. Against Discrimination in Housing, The Impact of Housing Patterns on Job Opportunities, supra at 27-30; Nat'l Comm. Against Discrimination in Housing, Jobs and Housing, supra at 23-26. See generally, Babcock and Bosselman, Exclusionary Zoning: Land Use Regulation in the 1970s, 114-15 (1973).
Third, even as we write, development proceeds apace. Once an area is developed, it becomes much more difficult to alter its social and economic character. There is a hazard that prolonged judicial inaction will permit exclusionary practices to continue to operate and will allow presently developing communities to acquire permanent exclusionary characteristics. The concern is not that New Jersey will soon be without developable land, but that large areas now in the process of development will have already acquired irrevocably exclusionary characteristics before the courts effectively intervene. Thus, the Delaware Valley Regional Planning Commission has estimated that the amount of developed land in the Philadelphia metropolitan area (including Burlington, Camden, Gloucester, and Mercer Counties) will increase by 38% between 1960 and 1985, Clawson, supra at 294, and the Regional Plan Association has estimated that intensive land use in the New York metropolitan area (which includes most of northern New Jersey) will double in the same period, Clawson, supra at 279.
Finally, we must take notice of the fact that the cost of building new housing has increased steadily over the past 10 years and shows all signs of continuing to increase in *208 the future. Between 1963 and 1969, the median sales price of new single-family housing in the northeastern part of the United States rose from $20,000 to $30,500. Sagalyn & Sternlieb, supra at 20. The costs of building rental housing had increased comparably. See generally, Clawson, supra at 82-83. As the costs of housing slip farther beyond the reach of persons of low and moderate incomes, the practical value of zoning reform diminishes and becomes increasingly contingent on the establishment of new State and federal housing subsidy programs.
Today's decision by its terms expressly concerns exclusionary zoning practices in municipalities which are developing but which "still are not completely developed and remain in the path of inevitable future residential, commercial and industrial demand and growth." Ante at 160. As to these communities, the Court holds:
* * * [E]very such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do. [Ante at 174; footnote omitted].
The majority has chosen not to explore in this case either the extent of the affirmative obligations upon developing municipalities or the role of the courts in enforcing those obligations. It has also chosen not to consider the degree to which the principles applicable to developing municipalities are also applicable to rural ones and to largely developed ones. The facts set out above seem to me to demonstrate that exclusionary zoning is a problem of such magnitude and depth as to require that the Court extend these principles to all municipalities in the State, recognizing, of *209 course, that they may have different implications for municipal conduct when applied in different areas, and that the Court establish a policy of active judicial enforcement, not only of the negative obligations imposed upon municipalities by this decision but also of the affirmative obligations.
II
I consider first the extent of the affirmative obligation to plan and provide for housing opportunities for persons with low and moderate incomes that municipalities assume when they choose to avail themselves of land use controls permitted by statute. Although this discussion will concern itself initially with developing municipalities, many of the same considerations also apply mutatis mutandi to developed municipalities and rural areas, as will subsequently become clear.
A municipality need not exercise at all the powers permitted it by the zoning and planning statutes, N.J.S.A. 40:55-30 et seq. and N.J.S.A. 40:55-1.1 et seq.[13] Once, however, it chooses to enter the field of land use regulation it assumes a duty one of constitutional dimensions, deriving from N.J. Const. (1947), Art. I, § 1 to act affirmatively to provide its fair share of the low and moderate income housing necessary to meet the regional housing needs. Cf. Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291, 295-6 (9 Cir.1970); Williams, American Planning Law: Land Use and the Police Power §§ 66.15, 66.16 (1974).
The substantive content of this affirmative obligation will necessarily vary from municipality to municipality, depending *210 upon, among other things, the intensity of the regional housing needs, the extent of previous exclusionary practices by the municipality, and the degree to which the municipality is benefiting, directly or indirectly, from regional economic development. A factor of special importance is the sufficiency of local housing opportunities for persons who might fill jobs created by new commercial and industrial development in the locality. Cf. Building the American City, supra at 243; ALI, Model Land Development Code, § 7-405 (Ten. Draft No. 3, 1971); Babcock & Bosselman, Exclusionary Zoning: Land Use Regulation and Housing in the 1970s, 114-15 (1973).
Every developing municipality has at least a duty to consider regional housing needs in all its planning activities, both formal and informal, including its formulation of the comprehensive plan underlying its zoning ordinance, N.J.S.A. 40:55-21, its adoption of a master plan, N.J.S.A. 40:55-1.10 and its consideration of applications for zoning variances, N.J.S.A. 40:55-39, and for approval of subdivision plats, N.J.S.A. 40:55-1.14.[14] In addition, since effective planning for regional needs is virtually impossible without some degree of intergovernmental cooperation, all developing municipalities also have an affirmative obligation to cooperate, where appropriate, in regional planning efforts, to cooperate, for example, with regional planning boards established pursuant to N.J.S.A. 40:27-9 and in area review procedures established under the Intergovernmental Co-operation Act, 42 U.S.C. 4231 and implemented by U.S. Office of Management and Budget Circular A-95 (July 24, 1969) and N.J.A.C. 5:42-1.1 et seq. See generally Babcock & Bosselman, Exclusionary Zoning: Land Use Regulation and Housing in the 1970s, 135-47 (1973).
*211 There is little hope that the private housing construction industry will be able to satisfy the State's housing needs in the foreseeable future, even if all exclusionary barriers are removed. Building the American City, supra at 93. To meet these needs, State or federal assistance will be required. This fact has been recognized by both the State Legislature and Congress in a lengthy series of statutes providing governmental subsidies for private construction and ownership of low and moderate income housing. See, e.g., Housing and Community Development Act of 1974, 88 Stat. 633 (codified at various places in 12, 42 U.S.C.); National Housing Act of 1959, § 202, as amended, 12 U.S.C. 1701q; National Housing Act, §§ 235, 236, as amended, 12 U.S.C. 1715z, 1715z-1 et seq.; Mortgage Finance Agency Law, N.J.S.A. 17:1B-4 et seq.; Housing Finance Agency Law, N.J.S.A. 55:14J-1 et seq.; Department of Community Affairs Demonstration Grant Act, N.J.S.A. 52:27D-59 et seq. To a greater or lesser degree, all of the programs require active municipal cooperation. Failure to actively cooperate in the implementation of such programs as effectively thwarts the meeting of regional needs for low and moderate income housing as does outright exclusion. See, e.g., Farmworkers of Florida Housing Projects, Inc. v. Delray Beach, 493 F.2d 799 (5 Cir.1974); Kennedy Park Homes Ass'n v. Lackawanna, 318 F. Supp. 669 (W.D.N.Y. 1970), aff'd 436 F.2d 108 (2 Cir.1970), cert. den. 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971). Developing municipalities have a duty to make all reasonable efforts to encourage and facilitate private efforts to take advantage of these programs.
Finally, there may be circumstances in which the municipality has an affirmative duty to provide housing for persons with low and moderate incomes through public construction, ownership, or management. See, e.g., Community Development and Housing Act of 1974, Title II, 42 U.S.C. 1401 et seq.; Local Housing Authority Law, N.J.S.A. *212 55:14A-1; cf. Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F. Supp. 1257 (N.D. Ohio 1973) rev'd 500 F. 2d 1087 (6 Cir.1974), cert. den. 419 U.S. 1108, 95 S.Ct. 781, 42 L.Ed.2d 805 (1975).
There are certain important limitations on the scope of these affirmative obligations. While municipalities must plan and provide for regional housing needs, no municipality need assume responsibility for more than its fair share of these needs. The purpose of land use regulation is to create pleasant, well-balanced communities, not to recreate slums in new locations. It is beyond dispute that when the racial and socioeconomic composition of the population of a community shifts beyond a certain point, the white and affluent begin to abandon the community. While the attitudes underlying this "tipping" effect must not be catered to, the phenomenon must be recognized as a reality. See, e.g., Graves v. Romney, 502 F.2d 1062 (8 Cir.1974), cert den. ___ U.S. ___, 95 S.Ct. 1354, 43 L.Ed.2d 440 (1975); Otero v. New York City Housing Authority, 484 F. 2d 1122 (2 Cir.1973). Municipalities have a legitimate interest in placing an upper limit on the extent of uses which, if permitted to expand without limit, might reasonably be feared to operate to the general detriment. Tidewater Oil Co. v. Carteret, 84 N.J. Super. 525 (App. Div. 1965), aff'd 44 N.J. 338 (1965). The limitation of the municipality's affirmative duty to one of providing for its fair share of reasonable needs responds to this interest. Cf. Mass. Gen. Laws Ann., c. 40B, §§ 20-23 (a statute authorizing the state to override local zoning restrictions for low and moderate income housing projects, but limiting the municipality's obligations to fixed annual and total maxima). A number of regions have, in response to the problem of exclusionary zoning, voluntarily sought to put such fair share housing plans into effect. See Babcock & Bosselman, supra at 109-13.
Nor need a municipality altogether give up control of the pace and sequence of development. A municipality has *213 a legitimate interest in insuring that residential development proceeds in an orderly and planned fashion, that the burdens upon municipal services do not increase faster than the practical ability of the municipality to expand the capacity of those services, and that exceptional environmental and historical features are not simply concreted over. See, e.g., Golden v. Ramapo Planning Board, 30 N.Y.2d 359, 334 N.Y.S. 2d 138, 285 N.E.2d 291 (1972), appeal dismissed 409 U.S. 1003, 93 S.Ct. 436, 34 L.Ed.2d 294 (1972); Construction Industry Ass'n of Sonoma County v. Petaluma, 375 F. Supp. 574 (N.D. Cal. 1974); Mass. Gen. Laws Ann., c. 40B, §§ 20, 23.[15] On the other hand, such regulations must be reasonable, substantially related to the purpose which they seek to achieve, and must adopt the least exclusionary means practical. "Zoning is a means by which a governmental body can plan for the future it may not be used as a means to deny the future." National Land and Investment Co. v. Kohn, 419 Pa. 504, 528, 215 A.2d 597, 610 (Pa. Sup. Ct. 1965). By way of illustration, large lot zoning is commonly rationalized as a device for preventing premature development. Such zoning, it is claimed, merely creates holding zones. In practice, however, it appears that land zoned for large lots, even where intended as an interim holding zone, tends to become frozen in a pattern of low density development. Williams & Norman, supra at 495. Such zoning is not a reasonable device for regulating the pace and sequence of development. Its effects on development, if any, are merely exclusionary.
Finally, the affirmative duty to plan and provide for regional needs does not require the municipality to make any specific piece of property available for low or moderate income housing, absent a showing that there are inadequate alternative sites realistically available for that type of development. *214 A municipality must zone in accordance with a comprehensive plan. N.J.S.A. 40:55-32. Once it has adopted a comprehensive plan which properly provides for the community's fair share of the regional housing needs, it is entitled to be able to enforce that plan through its zoning ordinances. To permit a developer to come in at a later date and demand, as a matter of right, that a piece of property not presently zoned to permit development of low or moderate cost housing be so zoned, is to undermine the entire premise of land use regulations. Williams, supra at § 66.15; see Confederation de la Raza Unida v. Morgan Hill, 324 F. Supp. 895 (N.D. Cal. 1971). The one exception to this principle is the situation in which the developer can show that, as a matter of practical fact, sufficient land is not available for development in the areas zoned for low or moderate income housing. See, e.g., Kennedy Park Homes Association v. Lackawanna, 318 F. Supp. 669 (W.D.N.Y. 1970), aff'd 436 F. 2d 108 (2 Cir.1970), cert. den. 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) (construction of multi-family housing in area zoned for it would perpetuate a segregated housing pattern and add to existing problem of overcrowding); Pascack Ass'n v. Washington Tp., 131 N.J. Super. 195 (Law Div. 1974) (area zoned for multi-family housing was already largely occupied by other, non-residential uses, and was burdened with other zoning requirements that made construction of low or moderate income housing impractical).
The affirmative obligations of developing municipalities so far discussed are legally binding and judicially enforceable. It is a truism that courts have no inherent expertise in matters of land use planning. They are not equipped to sit as higher planning boards and substitute their judgment for municipal bodies lawfully established for the purpose of making planning and zoning decisions. Bow & Arrow Manor v. West Orange, 63 N.J. 335, 343 (1973); Kozesnik v. Montgomery Tp., 24 N.J. 154, 167 (1957). The decision as to *215 how the municipality should go about performing the affirmative duties set out above is one initially to be made by the officials of the municipality itself. Nevertheless, if the municipality has failed to take affirmative steps to make realistically possible a variety and choice of housing so as to meet its fair share of the regional housing needs, its actions are presumptively illegal and the burden shifts to the municipality to justify them. The mere fact that local land use control issues are involved does not preclude the court from making such determinations, nor, if a court finds that the municipality has failed to meet its obligation, from exercising the full panoply of equitable powers to remedy the situation. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2 Cir.1968); Hawkins v. Shaw, 437 F.2d 1286 (5 Cir.1971); Pascack Ass'n v. Washington Tp., 131 N.J. Super. 195 (Law Div. 1974).
Judicial enforcement of municipal obligations, both negative and affirmative, to plan and provide for a fair share of regional housing needs, even if only directed to one municipality, necessarily has grave implications for the entire region. In dealing with such cases courts must act both deliberately and imaginatively. In administering such relief the trial court ought to proceed in four steps:
(1) identify the relevant region;[16]
(2) determine the present and future housing needs of the region;
(3) allocate these needs among the various municipalities in the region;[17] and
*216 (4) shape a suitable remedial order.
Cf. Williams, American Planning Law: Land Use and the Police Power § 66.38 (1974). Needless to say, all of these steps involve difficult factual determinations based upon expert testimony and statistical evidence. It may well be appropriate for the court to appoint independent experts or consultants for its assistance, see Pascack Ass'n v. Washington Tp., 131 N.J. Super. 195 (Law Div. 1974); cf. Handleman v. Marwen Stores Corp., 53 N.J. 404 (1969); Polulich v. J.G. Schmidt Tool Die & Stamping Co., 46 N.J. Super. 135 (Cty. Ct. 1957); Manual for Complex Litigation, Pt. 1 §§ 1.42, 1.46, 2.60, 3.40 (1973), or to invite participation by the Department of Community Affairs as amicus curiae.
Since conflicting decisions within a given region would be highly undesirable, all municipalities in the region should be joined as parties at the earliest practical point in the proceedings, if not at the instance of one of the parties, then on the motion of the court. R. 4:28-1, 4:30.
*217 The trial court must be flexible and imaginative in molding remedies to fit the facts of each case, balancing the need to vindicate the rights of persons who have been or will be deprived of the opportunity for decent housing if no relief is granted against the principle of local decision-making in land use planning matters. Pascack Ass'n v. Washington Tp., supra; see e.g., Kennedy Park Homes Ass'n v. Lackawanna, 318 F. Supp. 669 (W.D.N.Y. 1970) aff'd 436 F.2d 108 (2 Cir.1970) cert. den. 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F. Supp. 1257 (N.D. Ohio 1973) rev'd on other grounds, 500 F.2d 1087 (6 Cir.1974), cert. denied 419 U.S. 1108, 95 S.Ct. 781, 42 L.Ed.2d 805 (1975); United Farmworkers of Florida Housing Projects, Inc. v. Delray Beach, 493 F.2d 799 (5 Cir.1974); Lakewood Homes, Inc. v. Lima Bd. of Adjustment, 23 Ohio Misc. 211, 52 Ohio Op.2d 213, 258 N.E.2d 470 (Ohio Ct. C.P. 1970); mod. 25 Ohio App.2d 125, 267 N.E.2d 595 (Ohio Ct. App. 1971).
III
It can hardly be denied that there are some suburban municipalities which have already developed in an exclusionary mold. These communities, which have benefited from regional development, have, by their land use controls, contributed to the regional housing shortages. Cf. United States v. Black Jack, 372 F. Supp. 319 (E.D. Mo. 1974). It would be both highly inequitable to absolve them of any responsibility for solving those problems and inconsistent with the legal analysis developed by the Court today. Although the majority does not reach this issue in the present case, I would hold that developed suburban municipalities which have availed themselves of the land use controls permitted by statute and which have not provided sufficient opportunities for development of low and moderate income housing to meet their fair share of regional needs, have both *218 a negative obligation not to use zoning and subdivision controls to obstruct the construction of such housing and an affirmative duty to plan and provide for such housing, insofar as these obligations can be carried out without grossly disturbing existing neighborhoods. It is, of course, neither practical nor wise to demand that such communities completely rezone established neighborhoods; to do so would in all likelihood contribute to neighborhood instability and permit certain property owners and developers to obtain windfalls rather than actually effecting construction of low or moderate income housing.
Occasions, however, arise in every community when land becomes available for development or redevelopment. It is on these occasions that these obligations come into play most strongly. Thus the existence of an unmet regional need for low and moderate income housing in appropriate cases must be given great weight in considering applications for variances under N.J.S.A. 40:55-39(d) to permit the construction of such housing. De Simone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428 (1970); Brunetti v. Madison Tp., 130 N.J. Super. 164 (Law Div. 1974).
The discussion above of judicial enforcement applies equally to developed suburban communities, save only that in formulating relief the trial judge must be alert to take into consideration the delicacy and difficulty of altering the character of already developed areas.
IV
Substantial portions of New Jersey are neither experiencing a surge of development nor situated in the imminently foreseeable path of development. These include much of Cape May, Cumberland, and Salem Counties, portions of Atlantic, Ocean, Sussex and Warren Counties, and some rural areas in other parts of the State. In these municipalities, it is not meaningful to speak of failure to meet regional housing needs, not because there are no persons who are inadequately *219 housed,[18] but because it is not yet meaningful to speak of "regional" needs nor is it clear that land use controls play a significant role in the housing shortage at the present time. Nevertheless, the time may well come when the frontiers of suburbia will reach these areas. Municipalities may not act to deter the future development of a diversified housing stock by establishing land use controls which are inherently exclusionary and which bear no substantial relationship to any legitimate zoning purpose.
Without purporting to exhaust the list of zoning devices which are presumptively objectionable, I would note that minimum house size requirements which bear no substantial relationship to health needs[19] and requirements as to the minimum or maximum number of bedrooms which a dwelling unit may contain, cf. Molino v. Glassboro, 116 N.J. Super. 195 (Law Div. 1971), are presumptively invalid. Zoning for excessively large lots and large frontages presents more difficult analytic problems, cf. Steel Hill Development, Inc. v. Sanbornton, 469 F.2d 956 (1 Cir.1972), but excessive mapping for such lots is, absent extraordinary environmental factors, also presumptively invalid. Cf. Williams & Norman, supra at 496-97.
These obligations, too, are judicially enforceable, albeit without need for the more elaborate procedures appropriate for litigation concerning developing and developed areas which are discussed above.
*220 V
The problems we begin to face today are of awesome magnitude and importance, both for New Jersey and for the nation as a whole. It will not do to approach them gingerly; they call out for forceful and decisive judicial action.
The flow of low and moderate income persons is toward urban areas, but the cities have neither the space nor the resources to house these people. The question is whether the suburbs will act to accommodate this growth in an orderly way or will simply and blindly resist. Two well-entrenched zoning objectives, low density land use and favorable fiscal balance, though sometimes at odds with each other, have on the whole cooperated to create a milieu of discriminatory zoning which threatens to make the next 30 years of suburban growth a disaster.
The shape of the possible disaster can now be foreseen. The inevitable alternative to assumption by suburban communities of an obligation to provide for their fair share of regional housing needs is an increase in the size of slums with all their attendant miseries. The consequences of such economic, social, and racial segregation are too familiar to need recital here. See Nat'l Advisory Comm'n on Civil Disorders, Report (1968). Justice must be blind to both race and income.
It is not the business of this Court or any member of it to instruct the municipalities of the State of New Jersey on the good life. Nevertheless, I cannot help but note that many suburban communities have accepted at face value the traditional canard whispered by the "blockbuster": "When low income families move into your neighborhood, it will cease being a decent place to live." But as there is no difference between the love of low income mothers and fathers and those of high income for their children, so there is no difference between the desire for a decent community felt by one group and that felt by the other. Many low income families have learned from necessity the desirability of community involvement *221 and improvement. At least as well as persons with higher incomes, they have learned that one cannot simply leave the fate of the community in the hands of the government, that things do not run themselves, but simply run down.
Equally important, many suburban communities have failed to learn the lesson of cultural pluralism. A homogeneous community, one exhibiting almost total similarities of taste, habit, custom and behavior is culturally dead, aside from being downright boring. New and different life styles, habits and customs are the lifeblood of America. They are its strength, its growth force. Just as diversity strengthens and enriches the country as a whole, so will it strengthen and enrich a suburban community. Like animal species that over-specialize and breed out diversity and so perish in the course of evolution, communities, too, need racial, cultural, social and economic diversity to cope with our rapidly changing times.
Finally, many suburban communities have failed to recognize to whom the environment actually belongs. By environment, I mean not just land or housing, but air and water, flowers and green trees. There is a real sense in which clean air belongs to everyone, a sense in which green trees and flowers are everyone's right to see and smell. The right to enjoy these is connected to a citizen's right to life, to pursue his own happiness as he sees fit provided his pursuit does not infringe another's rights.
The people of New Jersey should welcome the result reached by the Court in this case, not merely because it is required by our laws, but, more fundamentally, because the result is right and true to the highest American ideals.
MOUNTAIN and PASHMAN, JJ., concurring in the result.
For modification Chief Justice HUGHES and Justices JACOBS, HALL, MOUNTAIN, SULLIVAN, PASHMAN and CLIFFORD 7.
Opposed None.
NOTES
[1] The judgment stayed the declaration of invalidity of the zoning ordinance until the court should decide "that sufficient time has elapsed to enable the municipality to enact new and proper regulations." The other provisions of the judgment were stayed pending appeal by subsequent order of the trial court.
[2] "Low income" was used in this case to refer to those persons or families eligible, by virtue of limited income, for occupancy in public housing units or units receiving rent supplement subsidies according to formulas therefor in effect in the area. "Moderate income" was similarly used to refer to those eligible for occupancy in housing units receiving so-called Section 235 or 236 or like subsidies. In another case, Oakwood at Madison v. Township of Madison, 128 N.J. Super. 438, 445 (Law Div. 1974), the figures of income up to $7,000 a year for the first category and up to $10,000-$12,000 for the second were projected. While the formula figures vary depending on family size, the dollar amounts mentioned are close enough to represent the top income in each classification for present purposes. "Middle income" and "upper income" are the designations of higher income categories.
[3] Plaintiffs fall into four categories: (1) present residents of the township residing in dilapidated or substandard housing; (2) former residents who were forced to move elsewhere because of the absence of suitable housing; (3) nonresidents living in central city substandard housing in the region who desire to secure decent housing and accompanying advantages within their means elsewhere; (4) three organizations representing the housing and other interests of racial minorities. The township originally challenged plaintiffs' standing to bring this action. The trial court properly held (119 N.J. Super. at 166) that the resident plaintiffs had adequate standing to ground the entire action and found it unnecessary to pass on that of the other plaintiffs. The issue has not been raised on appeal. We merely add that both categories of nonresident individuals likewise have standing. N.J.S.A. 40:55-47.1; cf. Walker v. Borough of Stanhope, 23 N.J. 657 (1957). No opinion is expressed as to the standing of the organizations.
[4] The validity of cluster zoning and of particular ordinance provisions, including, as here, those requiring the dedication of open space for public uses, has never been passed upon by this court. See generally 2 Williams, supra, §§ 47.02, 47.03, 47.05.
[5] The ordinance was held, in a taxpayer's suit, to be unconstitutional under the zoning section of the state constitution (Art. IV, sec. VI, par. 2) and violative of the general zoning enabling act (N.J.S.A. 40:55-30 et seq). Rudderow v. Township Committee of Mount Laurel Township, 114 N.J. Super. 104, decided in March 1971 by the same judge who determined the instant case. His judgment was reversed by the Appellate Division in December 1972, 121 N.J. Super. 409, after the ordinance had been repealed and the instant case heard and decided at the trial level. This court has never passed upon the PUD enabling legislation, any local implementing ordinance or any municipal approval of a PUD project. The basic legal questions involved in Rudderow, which include among others the matter of what requirements a municipal authority may, in effect, impose upon a developer as a condition of approval, are serious and not all easy of solution. We refer to the Mount Laurel PUD projects as part of the picture of land use regulation in the township and its effect. It may be noted that, at a hearing on the PUD ordinance, the then township attorney stated that "* * * providing for apartments in a PUD ordinance in effect would seem to overcome any court objection that the Township was not properly zoning in denying apartments."
[6] The current township attorney, at oral argument, conceded, without specification, that many of these various conditions which had been required of developers were illegal.
[7] This court has not yet passed on the validity of any land use regulation which restricts residence on the basis of occupant age.
[8] The record is replete with uncontradicted evidence that, factually, low and moderate income housing cannot be built without some form of contribution, concession or incentive by some level of government. Such, under various state and federal methods, may take the form of public construction or some sort of governmental assistance or encouragement to private building. Multi-family rental units, at a high density, or, at most, low cost single-family units on very small lots, are economically necessary and in turn require appropriate local land use regulations.
[9] Such "finances and resources" has reference to monies spent by various agencies on highways within the municipality, loans and grants for water and sewer systems and for planning, federal guarantees of mortgages on new home construction, and the like.
[10] While, as the trial court found, Mount Laurel's actions were deliberate, we are of the view that the identical conclusion follows even when municipal conduct is not shown to be intentional, but the effect is substantially the same as if it were.
[11] The paragraph reads:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.
[12] Zoning ordinance restriction of housing to single-family dwellings is very common in New Jersey. Excluding six large, clearly rural townships, the percentage of remaining land zoned for multi-family use is only just over 1% of the net residential land supply in 16 of New Jersey's 21 counties (not included are Atlantic, Cumberland, Cape May, Salem and Hudson counties). See Land Use Regulation, The Residential Land Supply, supra, pp. 10-13. (It is well known the considerable numbers of privately built apartments have been constructed in recent years in municipalities throughout the state, not allowed by ordinance, by the use variance procedure. N.J.S.A. 40:55-39(d). While the special exception method, N.J.S.A. 40:55-39(b), is frequently appropriate for the handling of such uses, it would indeed be the rare case where proper "special reasons" could be found to validly support a subsection (d) variance for such privately built housing.) Pennsylvania has held it unconstitutional for a developing municipality to fail to provide for apartments anywhere within it. Appeal of Girsh, 437 Pa. 237, 263 A.2d 395 (1970).
[13] Some authorities suggest that such dwellings are rapidly becoming financially possible only for those of relatively high income. See New Jersey Trends, ch. 24, Sternlieb, Introduction: Is This The End of the American Dream House?, p. 302 (Institute for Environmental Studies, Rutgers University, 1974).
[14] Apartment bedroom restrictions are also common in municipalities of the state which do allow multi-family housing. About 60% of the area zoned to permit multi-family dwellings is restricted to efficiency or one-bedroom apartments; another 20% permits two-bedroom units and only the remaining 20% allows units of three bedrooms or larger. See Land Use Regulation, The Residential Land Supply, supra, pp. 11-12.
[15] For a full report on the fiscal aspects of multi-family housing, see New Jersey County & Municipal Government Study Commission, Housing & Suburbs, Fiscal & Social Impact of Multifamily Development (1974).
[16] These restrictions are typical throughout the state. As shown in Land Use Regulation, The Residential Land Supply, supra, pp. 14-16, in the 16 counties covered by that study, only 14.1% of the available single-family land is allowed to be in lots of less than one-half acre, only 5.1% (and that mostly in urban counties) in those of less than 10,000 square feet, and 54.7% of it requires lots of from one to three acres.
The same study, pp. 17-18, demonstrates that only as to 13.5% of the available single-family land is a frontage of less than 100 feet required, 32.2% requires 100-149 feet, 23.3%, 150-199 feet and 31%, 200 feet or more.
[17] Minimum floor area requirements exist as to all but 8% of the available residential land supply in the 16 counties studied in Land Use Regulation, The Residential Land Supply, supra, pp. 18-20; the Mount Laurel dimensions are representative of those most commonly imposed.
[18] Land Use Regulation, The Residential Land Supply, supra, pp. 6-8, shows that in the 16 county area only 14.7% of the net land supply is zoned for industrial uses (including offices and research laboratories). 3.6% is zoned for commercial uses and the remainder (81.7%) for residential uses of all types.
[19] The township has not been deprived of the opportunity to present its defense on this thesis, since the case was very thoroughly tried out with voluminous evidence on all aspects on both sides.
[20] This case does not properly present the question of whether a developing municipality may time its growth and, if so, how. See, e.g., Golden v. Planning Board of the Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291 (1972), appeal dismissed 409 U.S. 1003, 93 S.Ct. 436, 440, 34 L.Ed.2d 294 (1972); Construction Industry Association of Sonoma County v. City of Petaluma, 375 F. Supp. 574 (N.D. Cal. 1974), appeal pending (citation of these cases is not intended to indicate either agreement or disagreement with their conclusions). We now say only that, assuming some type of timed growth is permissible, it cannot be utilized as an exclusionary device or to stop all further development and must include early provision for low and moderate income housing.
[21] This was said with the realization that most of such housing will require some form of governmental subsidy or assistance at some level to construct and, if the present tax structure remains unchanged, perhaps also some assistance to the municipality itself in connection with the furnishing of the additional local services required. See recommendations, Housing & Suburbs, Fiscal & Social Impact of Multifamily Development, supra, pp. 123, et seq.
We further agree with the statement in the separate summary of the cited study, p. 2: "We recognize that new development, whatever the pace of construction, will never be the source of housing for more than a small part of the State's population. The greater part of New Jersey's housing stock is found and will continue to be found in the central cities and older suburbs of the State * * *." (Substantial housing rehabilitation, as well as general overall revitalization of the cities, is, of course, indicated.) So, while what we decide today will produce no mass or sudden emigration of those of low and moderate income from the central cities and older suburbs to the developing municipalities, our conception of state law as applied to land use regulation affecting housing requires that the fair opportunity therefor be afforded at once, with the expectation and purpose that the opportunity will come to fruition in the near future through private or public enterprises, or both, and result in available housing in the developing municipalities for a goodly number of the various categories of people of low and moderate income who desire to live therein and now cannot.
[22] This court long ago pointed out "* * * the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality." Duffcon Concrete Products, Inc. v. Borough of Cresskill, supra (1 N.J. at 513). It is now clear that the Legislature accepts the fact that at least land use planning, to be of any value, must be done on a much broader basis than each municipality separately. Note the statutes establishing county planning boards, with the duty to prepare a county master plan and requiring that board's review and approval of certain subdivisions, N.J.S.A. 40:27-1 to 8; authorizing voluntary regional planning boards, N.J.S.A. 40:27-9 to 11; creating state planning and coordinating functions in the Department of Community Affairs and its Division of State and Regional Planning, N.J.S.A. 52:27D-6 and 9 and 13:1B-5.1 and 15.52; and providing for New Jersey to join with New York and Connecticut in the establishment of the Tri-State Regional Planning Commission with extensive area planning functions, N.J.S.A. 32:22B-1, et seq. (Federal statutes and regulations require many federal grants for local public works and installations to have the approval of regional planning agencies, consistent with comprehensive area plans.) Authorization for regional zoning the implementation of planning , or at least regulation of land uses having a substantial external impact by some agency beyond the local municipality, would seem to be logical and desirable as the next legislative step.
[23] The questions mentioned in this paragraph are more fully involved in Oakwood at Madison v. Township of Madison, supra, 128 N.J. Super. 438, appeal pending unheard in this court.
[1] Hereinafter cited as Building the American City and The Residential Land Supply, respectively.
[2] Defendant contends that no such motivation is at work in this case. I, like my brethren, accept that claim.
[3] The Department of Community Affairs surveyed the use of exclusionary devices in municipal zoning laws as of 1970. The study area included all developable land in New Jersey except that in Atlantic, Cape May, Cumberland, Hudson, and Salem Counties and in the Hackensack Meadowlands District. The Residential Land Supply, supra. All figures in this opinion as to the extent of use of various zoning provisions are based on that study. For other analyses of Department of Community Affairs data, see Special Message to the Legislature by Governor Cahill, A Blueprint for Housing in New Jersey, Dec. 7, 1970; Williams & Norman, "Exclusionary Land Use Controls: The Case of North-eastern New Jersey," 22 Syracuse L. Rev. 476 (1971); Sagalyn & Sternlieb, Zoning and Housing Costs, 93-115 (1972); Nat'l Comm. Against Discrimination in Housing, Jobs and Housing: Final Summary Report on the Housing Component, supra at 25-37.
[4] The extreme case is Morris County, where 87% of the land zoned for single family housing had a 1,200 square foot minimum floor space requirement and 66.3% had a 1,600 square foot or more minimum. In Burlington, only 54.7% was zoned for 1,000 square feet or more and 24% had no minimum house size requirement at all.
[5] The term "outer-ring" is used here in the same sense as it is used in the majority opinion, ante at 162. See Williams & Norman, supra at 479. It should be noted that this term is not used consistently by professional planners. The Regional Plan Association, the principal New York planning group, describes the counties referred to here as "outer-ring" counties as the "intermediate ring," reserving the former term for more outlying areas, Sussex, Warren, Hunterdon, and Ocean. Clawson, supra at 368. The Delaware Valley Regional Planning Commission, the principal Philadelphia planning group, does not describe suburban development in the Philadelphia region in terms of concentric "rings" at all, perhaps because development in that region has been more blotchy. Id. at 291.
[6] This concededly is an oversimplified measure, see Williams & Norman, supra at 481 n. 13, but one widely used by persons in the housing construction industry. The Residential Land Supply, at 18. The $20 figure was considered conservative at the time of publication of the Department of Community Affairs study in 1972. Id.
[7] The communities are Lamberton Township (Burlington); Winslow Township (Camden); Franklin Township (Gloucester); Plumstead Township (Ocean); Montague Township (Sussex); Allamuchy Township (Warren). All are distant from the path of development and rural in character.
[8] It should be noted that despite these restrictions a significant amount of multifamily housing has been built in the suburbs in recent years. Thus, even in Somerset County, which had no vacant land zoned for multifamily dwellings during the period between 1960 and 1970, 7,635 multifamily units were built in those 10 years. This seems to have been achieved through variances and specially procured zoning ordinance amendments. Such individually negotiated variances and amendments, however, have usually been accompanied by formal or informal restrictions limiting development to small high-rent units, which are wholly unsuited to the needs of families with low or moderate incomes. Nat'l. Comm. Against Discrimination in Housing, Jobs and Housing: Final Summary Report on the Housing Component, supra at 35-37.
[9] Here, too, Winslow, Franklin, Plumstead, and Montague Townships are aberrant and not included.
[10] In a few municipalities in Gloucester and Burlington Counties mobile homes are permitted in some nonresidential use areas. In a few localities scattered through the State, mobile homes are permitted as conditional uses. The Residential Land Supply, supra at 13; Williams & Norman, supra at 488-89.
[11] Hereinafter cited as Housing Crisis in New Jersey.
[12] As the term is used by the Regional Planning Association, which includes much of northern New Jersey.
[13] As of 1971, 96% of all municipalities in New Jersey had zoning ordinances and 85% had subdivision controls. Sagalyn & Sternlieb, Zoning and Housing Costs 102 (1972). We need not consider here the affirmative duties of a municipality which once had but has now abandoned zoning or subdivision regulations.
[14] While this opinion is principally directed towards municipalities, the same considerations also apply to planning at the county level when the county has chosen to exercise power to regulate land use permitted it by N.J.S.A. 40:27-1 et seq.
[15] It should be emphasized that citation of these cases and statutes is not intended to indicate approval of the specific zoning provisions approved therein.
[16] Relevant considerations might include: the area included in the interdependent residential housing market; the area encompassed by significant patterns of commutation; the area served by major public services and facilities, e.g., parks, hospitals, cultural facilities, etc.; the area in which the housing problem can be solved. All of these considerations must be evaluated in terms of both present facts and projections of future development.
[17] The following factors were considered in developing a fair share plan for the Dayton, Ohio area:
[T]he needed low and moderate income dwelling units were assigned to the planning units using a composite of numbers resulting from six calculation methods: (1) equal share; (2) proportionate share of the county's households; (3) proportionate share of the county's households making less than $10,000 annually (or less than $7,000 in the three more rural counties); (4) the inverse of #3; (5) a share based on the assessed valuation per pupil of the school districts covering the planning units; and (6) a share based on the relative over-crowding of the school districts involved.
* * *
The six factors used in the calculations, however, seemed to reflect some very basic determinations: the possibility of each sub-area being treated equally, the existing distribution of each county's households and lower income households, and two indicators of the receiving school districts' ability to accept new students. The latter two were used because the school question emerged as a critical concern whenever low and moderate income housing was mentioned for placement in a given area.
[Bertsch & Shafer "A Regional Housing Plan: The Miami Valley Regional Planning Commission Experience," 1 Planners Notebook No. 1 (1971) quoted in Williams, supra § 66.36.]
[18] In 1970 the Department of Community Affairs, in its study, Housing Crisis in New Jersey 1970, reported that 13.9% of the dwelling units in Cape May County were substandard, 32.8% in Cumberland, 34.7% in Salem, 16.9% in Atlantic, 19.5% in Sussex, and 23.2% in Warren. All of the counties have significant populations near or below the poverty level. Id.
[19] Unjustifiable minimum house size requirements should, of course, be distinguished from housing code minimum space requirements which bear a real and substantial relationship to health needs. Sente v. Clifton, 66 N.J. 204, 209 (1974) (Pashman J. dissenting); Building the American City, supra at 215 n. 19. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263478/ | 461 Pa. 271 (1975)
336 A.2d 280
COMMONWEALTH of Pennsylvania
v.
William X. HINES, Appellant.
Supreme Court of Pennsylvania.
Submitted March 10, 1975.
Decided April 17, 1975.
*272 John J. Dean, John R. Cook, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
In September, 1970, appellant William Hines pleaded guilty to a charge of murder. A degree of guilt hearing was held and appellant was found guilty of murder *273 in the first degree and sentenced to life imprisonment. Post-trial motions were filed and denied, but no direct appeal was taken. Subsequently, appellant filed a petition under the Post-Conviction Hearing Act,[1] contending that his plea of guilty was invalid because involuntary and made without understanding of its consequences. Counsel was appointed to represent him and a hearing was held, after which the PCHA court denied relief on the ground that the plea was voluntarily and intelligently entered. This appeal followed.[2] We affirm because appellant has failed to show that his claim was not waived.[3]
Section 3 of the Post-Conviction Hearing Act provides, in pertinent part:
"To be eligible for relief under this act, a person. . . must prove the following:
"(d) That the error resulting in his conviction has not been . . . waived."
Section 4 defines waiver as follows:
"(b) For purposes of this act, an issue is waived if:
"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised. . . on appeal . . .; and
"(2) The petitioner is unable to prove the existence of extraordinary and unusual circumstances to justify his failure to raise the issue.
*274 "(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
Appellant first raised the claimed invalidity during the hearing on the degree of guilt when he moved to withdraw his plea. The trial court denied the motion and the claim was renewed in post-trial motions. Clearly, the claim of an involuntary and unintelligent plea of guilty was available on appeal. E.g., Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Nowhere in the record has appellant even alleged, much less proved, that his failure to pursue this claim on appeal was anything but a knowing and intelligent waiver of any right to relief based upon that claim.[4] Neither has he alleged or proved any "extraordinary and unusual circumstances to justify his failure to raise the issue." Consequently, appellant has failed to prove a fact essential to eligibility for relief under the Act.
Order affirmed.
NOTES
[1] Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. §§ 1180-1 to -12 (Supp. 1974).
[2] Id. § 11, 19 P.S. § 1180-11, and Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, § 202(1), 17 P.S. § 211.202(1) (Supp. 1974).
[3] While the question of waiver has not been raised by any party to this litigation, this Court may affirm an order if it is correct for any reason. Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975); Gilbert v. Korvette, Inc., 457 Pa. 602, 604, n. 5, 327 A.2d 94, 96 n. 5 (1974); Estate of Prynn, 455 Pa. 192, 197 n. 9, 315 A.2d 265, 267 n. 9 (1973); Concord Township Appeal, 439 Pa. 466, 469, 268 A.2d 765, 766 (1970).
[4] Compare, e.g., Commonwealth v. Horner, 453 Pa. 435, 309 A.2d 552 (1973), in which appellant established in a PCHA proceeding that his right to a direct appeal as mandated by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), had been violated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263497/ | 336 A.2d 193 (1975)
MOUNT MANSFIELD TELEVISION, INC.
v.
VERMONT COMMISSIONER OF TAXES.
No. 124-74.
Supreme Court of Vermont, Chittenden.
April 1, 1975.
Paul D. Sheehey, Burlington, for plaintiff.
M. Jerome Diamond, Atty. Gen., Georgiana O. Miranda, Asst. Atty. Gen., Montpelier, for defendant.
Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.
KEYSER, Justice.
This case raises for our determination the issue of whether the receiving and subsequent televising of films and video tapes supplied for a fee by out-of-state distributors constitutes a taxable use under the Vermont sales and use tax. Appellant, Mount Mansfield Television, Inc., was assessed on this premise by the Vermont Department of Taxes. The assessment was *194 affirmed on appeal by the Commissioner of Taxes who, in turn, was upheld by the Chittenden Superior Court.
Taxpayer obtains films and video tapes from various out-of-state distributors and broadcasts them, pursuant to the terms of the agreements under which they are supplied, over its television station WCAX in Burlington. The fees paid vary depending, in part, on the advertising fees which are charged by taxpayer. Under 32 V.S.A. § 9774(c), the three per cent use tax is based upon the amount of the fee paid to the supplier.
The use tax in question is imposed under 32 V.S.A. § 9773(1) on any tangible personal property purchased at retail unless the property has been or will be subject to the sales tax or is otherwise exempted. The absence of such an exception is not challenged here; the question is simply whether the subject transactions fall within the ambit of the statutory classification.
Purchase is defined in 32 V.S.A. § 9701(6) as:
any transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor.
"Tangible personal property" is statutorily defined as "personal property which may be seen, weighed, measured, felt, touched or in any other manner perceived by the senses." 32 V.S.A. § 9701(7). This statutory definition provides the source of taxpayer's basic contention that the real subject of its transactions with the film and video tape distributors is an intangible right to broadcast which does not fall within the meaning of "tangible personal property".
Although the question presented is one of first impression in Vermont, there is no dearth of analogous case law in other jurisdictions on both sides of the issue. Without engaging in a protracted analysis of the subtle factual and statutory language distinctions which can be found in cases cited by both parties here, it is fair to say that the cases which taxpayer has cited in support of its position generally support the theory that transactions of the type here in question involve "intangible" reproduction rights as opposed to "tangible" property rights. These cases take the view that products such as television films are nothing without the attendant right to broadcast and that they thus cannot be classified as "tangible personal property" for tax purposes. See Washington Times Herald v. District of Columbia, 94 U.S. App.D.C. 154, 213 F.2d 23 (1954); Watson Industries, Inc. v. Shaw, 235 N.C. 203, 69 S.E.2d 505 (1952); Burgess v. Ames, 359 Ill. 427, 194 N.E. 565 (1935).
Cases cited by the Department of Taxes, on the other hand, stand for the proposition that it is a finished product (video tape or film) which is the subject of the transaction and that a license to exhibit or broadcast without the tangible finished product itself would be valueless. See Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 282 So.2d 892 (1973); Florida Association of Broadcasters v. Kirk, 264 So.2d 437 (Fla.Dist.Ct.App.), cert. denied, 268 So.2d 534 (Fla.1972); Crescent Amusement Co. v. Carson, 187 Tenn. 112, 213 S. W.2d 27 (1948).
To the extent that these cases can be extracted from their singular factual and statutory contexts and reduced to abstract legal holdings, we must recognize the existence of a genuine split of authority on the issue before us. The opposing theories are not difficult to conceptualize; the choices are clear.
We are pursuaded by the reasoning of the more recent decisions in this area which have embraced the theory now advanced by the Department of Taxes. We find particularly germane the point made by the Supreme Court of Arkansas that *195 "the right to use property cannot be separated from the property itself." American Television Co. v. Hervey, 253 Ark. 1010, 1014, 490 S.W.2d 796, 799 (1973). The right of which taxpayer speaks is simply of no value to it without the use of the video tape or film itself.
Taxpayer has pointed to no language in our statutes which would lead us to a different conclusion, nor has our examination uncovered any. The applicable wording is precise and taxpayer's argument must rise or fall upon the tangible-intangible distinction which it seeks to draw but which we are not pursuaded to recognize. The tax was properly assessed.
Taxpayer also challenges the assessment of penalty and interest which was originally imposed on the films and video tapes in question here and also on the purchase and use of certain capital supplies and equipment. The issue of the taxability of the capital supplies and equipment had initially been appealed to the Commissioner but was settled before hearing in favor of the Department of Taxes. The five per cent penalty and one per cent per month interest with respect to these materials were affirmed by the Commissioner, but with respect to the films and video tapes the penalty was abated in full and the interest was reduced to one-half per cent per month.
Taxpayer maintains that any delay in the payment of the taxes was caused by the Commissioner's failure to provide adequate and timely notice of liability. The Commissioner's authority for remissions and abatements under 32 V.S.A. § 9814 is purely discretionary. Bearing in mind the affirmative duties placed upon the taxpayer by 32 V.S.A. § 9775, and in view of the fact that the entire penalty and one-half of the interest were abated with respect to the films and video tapes, we are satisfied that no abuse of discretion has been demonstrated.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335703/ | 133 Ga. App. 128 (1974)
210 S.E.2d 245
DAVIDSON
v.
RAMSBY et al.
49368.
Court of Appeals of Georgia.
Argued May 10, 1974.
Decided October 23, 1974.
Wm. Boyd Lyons, for appellant.
John K. Dunlap, for appellees.
EVANS, Judge.
On the evening of December 30, 1971, Gilbert Davidson drove his automobile to the Ambassador Restaurant in Atlanta, Georgia. Upon arrival at the restaurant he stopped at the entrance, locked the glove compartment, but left the key and several other keys, including the ignition key, in the car. He then gave possession of the car to an attendant so the car might be parked. The attendant, representing Charles Ramsby, who operated the parking lot for Ambassador Restaurants, Inc., gave Davidson a parking check and parked the automobile.
*129 For the mutual purposes of inducing the restaurant trade to use its facilities, Ambassador Restaurants, Inc. had contracted with a private person to furnish the parking facilities to its guests who mutually enjoy the use of the facilities. The cost of same is presumably within the price of the food and drink, and there is no extra charge except for the "gratuitous" tip which is the usual and customary charge for services.
Davidson did not read the language on the parking check. After the attendant parked the automobile, the keys were placed on a peg board in the restaurant, which was numbered according to the parking spaces in which the vehicles were parked. The parking checks used by Ramsby have large numbers thereon, with the words, "Ambassador Restaurant and Embassy Lounge," and "Not responsible for items left in car."
Several hours later, after he had dined, Davidson returned for his car. The automobile was missing from the lot, presumably stolen. It was recovered the following day with numerous articles of personality missing from the interior, the glove compartment and the trunk. The keys to the automobile were found in the rear seat.
Davidson sued Ambassador Restaurants, Inc., as principal, and Ramsby, as agent, for negligence in allowing the automobile to be removed from the parking lot, which resulted in the loss of the personal items for which he seeks $1,113.07 in damages. The personality which plaintiff alleges was missing from the car upon its return to him included camera equipment, binoculars, brief cases, sporting equipment, and a tool box and tools. It was not contended by Davidson that defendants had knowledge that such personalty was contained within the car at the time of delivery to defendant.
Defendants answered, and denied liability. After discovery, defendants moved for summary judgment, the principal grounds urged in support thereof being first that the exculpatory language on the parking checks absolved defendants; and second that no bailment was created as to the items of personalty because defendants had no knowledge that same were contained within the automobile.
The trial court granted summary judgment for *130 defendants. The questions to be determined here are as to whether the exculpatory language on the parking ticket absolved defendants from liability, and as to whether a bailment for hire was created as to the items of personalty in the absence of defendants' knowledge of same being contained in the car. A finding in defendants' favor on either of these questions would be sufficient to support the finding in favor of summary judgment for defendants. Held:
1. A mere disclaimer of responsibility on a receipt is insufficient to absolve one of responsibility where negligence is alleged in the handling of plaintiff's automobile while defendants had it in their possession so as to allow the keys to be used in removing it. Further, there was no evidence that plaintiff was aware of the disclaimer written on the receipt. See in this connection, American Laundry v. Hall, 27 Ga. App. 717 (1) (109 SE 676); Red-Cross Laundry v. Tuten, 31 Ga. App. 689 (1) (121 SE 865). Compare Evans & Pennington v. Nail, 1 Ga. App. 42 (1, 2) (57 SE 1020); Ellerman v. Atlanta American Motor Hotel Corp., 126 Ga. App. 194 (191 SE2d 295); Diplomat Restaurant v. Townsend, 118 Ga. App. 694 (165 SE2d 317). The case of Brown v. Five Points Parking Center, 121 Ga. App. 819 (175 SE2d 901), relied upon by the defendants, is not applicable to the facts of this case.
2. Agency may be established by circumstances, apparent relations and conduct of the parties. Code § 4-101; Germain Co. v. Bank of Camden County, 14 Ga. App. 88 (1) (80 SE 302); Cable Co. v. Walker, 127 Ga. 65 (56 SE 108); Executive Committee v. Ferguson, 95 Ga. App. 393 (98 SE2d 50); King v. Towns, 102 Ga. App. 895 (118 SE2d 121); Fordham v. Garrett-Schwartz Motor Co., 121 Ga. App. 237, 238 (3) (173 SE2d 450). The parking checks or receipts for automobiles containing the alleged waiver of responsibility had the names of the two establishments owned by the defendant Ambassador Restaurants, Inc. and not Ramsby.
3. In view of all of the foregoing, we hold that defendants could not escape liability because of the exculpatory language printed on the parking ticket.
4. We now come to the critical question in this case, *131 to wit, are the circumstances here sufficient to create a bailment for hire as to the contents of the automobile?
5. To create a bailment, express or implied, there must be an actual or constructive delivery of the goods with actual or constructive possession in the bailee, exclusive and independent of the bailor and all other persons. Code §§ 12-101, 12-102; Atlantic C. L. R. Co. v. Baker, 118 Ga. 809, 810 (45 SE 673).
6. The relationship of the owner of an automobile and the owner of a garage for the storage of such automobile is that of bailor and bailee. Code § 12-403; Bunn v. Broadway Parking Center, 116 Ga. App. 85 (156 SE2d 464).
7. Where the object of the bailment is beneficial to both bailor and bailee, the degree of diligence required of the bailee is ordinary care. Merchants National Bank v. Guilmartin, 88 Ga. 797, 799 (15 SE 831); Renfroe v. Fouche, 26 Ga. App. 340 (2) (106 SE 303); Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570, 578 (5) (49 SE2d 184).
8. In all cases of bailment after proof of loss, the burden is on the bailee to show proper diligence. Code § 12-104.
9. But as to the contents of an automobile, admitting that the automobile is properly shown to be a bailment for hire, when and under what circumstances does a bailment for hire arise as to such contents of which the bailee has no actual knowledge? How far does his liability extend as to contents, of which he has no knowledge or notice? Does the law impose upon the bailee strict liability for the safekeeping of articles stored inside the car, even though he has no notice or knowledge as to such contents? Can the law regard him as a bailee of items entrusted to him, when he has no knowledge or notice that he has been entrusted with such items? In this case, all of the keys to the car were surrendered to the bailee, and presumably he could have made a thorough search of the car to determine for himself what it contained. Does the law contemplate such search, and if so, must each car be thoroughly searched and checked out at time of its delivery to the bailee, and in the presence of the bailor? How many cars of other customers will be backed-up *132 while waiting for this exhaustive search by the person who takes charge of your car at a restaurant or hotel?
If the law is as contended by plaintiff, and if the bailee is responsible for all contents of the car whether he had any knowledge of such contents or not, suppose the car contained an expensive diamond ring of the value of $100,000 (or $100,000 in currency for the matter), must the bailee come up with $100,000 when the car is stolen? What position is bailee in to dispute the car owner's declaration that the automobile did not contain such an expensive ring, or $100,000 in currency?
This is a case of first impression in Georgia, so we reluctantly look to authorities from other jurisdictions. The New Hampshire case of Campbell v. Portsmouth Hotel Co., 91 N. H. 390 (20 A2d 644), discusses this question as to a hotel, and holds that such hotel, though having no knowledge of the contents of the car of its guest, "it might be held that the agreement to take care of the car implied a promise to take care of what might be expected to be in it." (Emphasis supplied.) Under this authority, before the plaintiff could recover, he would first have to introduce evidence to show that the bailee should have expected such items as cameras, binoculars, sporting equipment, etc. to be contained in the car.
Continuing our search into other jurisdictions, in 27 ALR2d 796 Annot. (Liability of Bailee for Hire of Automobile for loss of contents) at p. 799, it is stated: "In most of the cases the liability of a bailee for hire of an automobile for loss of, or damage to, the contents of the automobile is made to depend on the absence or presence of notice or knowledge of the contents." (Emphasis supplied.) And in 27 ALR2d 796, 811, it is stated: "The rule of nonliability for loss of, or damage to, contents of an automobile, where there is no notice or knowledge of the contents has been applied to parking lot operators." (Emphasis supplied.)
Our Georgia courts have decided cases which involve similar facts, but without ever deciding the question here involved. For instance, in Diplomat Restaurant v. Townsend, 118 Ga. App. 694, supra, the only question decided was whether Code § 52-111 limiting an innkeeper's liability to $100 applied to restaurants, and *133 it was held that same did not apply to restaurants. In Ellerman v. Atlanta American Motor Hotel Corp., 126 Ga. App. 194, supra, the question decided was whether an innkeeper could limit his liability by exculpatory language printed on a check delivered to the car-owner at time of bailment. In Traylor v. Hyatt Corp., 122 Ga. App. 633 (178 SE2d 289), and at 636 (7), this court made it plain that it would not decide whether the bailee must have notice as to the contents of the car before being held liable. In Humphrey v. Merchants &c. Co., 38 Ga. App. 578 (144 SE 354), loss of articles from a passenger's room in a steamship were sued for and this court said: "Whether the defendant be treated as an innkeeper or as a common carrier of goods, it would at least be responsible to plaintiff for the loss of such articles as the passenger might be reasonably expected to carry on his person, where the loss occurred as a result of defendant's negligence." (Emphasis supplied.) The articles involved were a watch, watch-chain, and a small amount of money. To the same effect, and using almost identical language, see Pullman's Palace Car Co. v. Martin, 95 Ga. 314 (1) (22 SE 700). In Blosser Co. v. Doonan, 8 Ga. App. 285 (2) (68 SE 1074), it is held that before the bailee is charged with the duty of safe-keeping property "he must assent to the bailment, either expressly or impliedly." In the case sub judice the bailees assented as to the car, but it was not conclusively shown that they assented as to the contents.
10. We hold that a bailee for hire as to an automobile is not liable for the contents thereof unless he has actual or implied knowledge or notice as to such contents. If the articles are such as the bailee might "reasonably expect" to be therein this would be sufficient notice.
11. But a jury question is made in this case as to whether the articles of personalty sued for, camera, binoculars, etc. were such as the bailees should have "reasonably expected" to be contained in the car. Under the very rigid rules as to summary judgments, laid down in Holland v. Sanfax Corp., 106 Ga. App. 1, 4-5 (126 SE2d 442); and McCarty v. National Life Ins. Co., 107 Ga. App. 178, 179 (2) (129 SE2d 408), all of the evidence, and all deductions and inferences arising from the evidence, *134 must be construed most strongly against the movant for summary judgment, and this is true as to circumstantial evidence as well as direct evidence. See Whitaker v. Paden, 78 Ga. App. 145, 148 (50 SE2d 774).
12. The judgment of the trial court in granting summary judgment for defendants is reversed, and it is ordered that the case be submitted to a jury for determination as to whether the defendants had notice or knowledge of the contents of the car, and as to whether the articles were such that the defendants should have reasonably expected to be contained therein.
Judgment reversed. Pannell, P. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335761/ | 210 S.E.2d 221 (1974)
24 N.C. App. 107
Hannah S. JOLLIFF and W. Savage Jolliff
v.
Cortez WINSLOW.
No. 741DC668.
Court of Appeals of North Carolina.
December 4, 1974.
Appeal Dismissed March 11, 1975.
*222 James R. Walker, Jr., Weldon, for the defendant-appellant.
No counsel contra.
Appeal Dismissed by Supreme Court March 11, 1975.
BROCK, Chief Judge.
By way of five assignments of error, defendant essentially advances two arguments: first, that G.S. § 1A-1, Rule 65(b) of the North Carolina Rules of Civil Procedure violates the equal protection and due process clauses of the State and Federal Constitutions, and, second, that G.S. § 1-485, authorizing preliminary injunctions, is unconstitutional because it too violates those provisions of the State and Federal Constitutions.
Rule 65(b) of the North Carolina Rules of Civil Procedure permits the issuance of temporary restraining orders "without notice to the adverse party if it clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon." Because a temporary restraining order is an immediate remedy, Rule 65 carefully sets forth several protections designed to check the extent of use of the remedy.
Defendant contends that Rule 65(b) is unconstitutional because it permits the invasion of property rights upon a showing of "possible injury, loss, or damage" and because it authorizes the entry of a temporary restraining order without notice to the adverse party.
A temporary restraining order is not predicated upon illusory injury, loss, or damage, as is stated by defendant, but is entered only upon a showing of immediate and irreparable injury, loss, or damage. Because it is an ex parte injunction, a temporary restraining order, by its nature, necessarily issues upon plaintiff's evidence either by affidavit or by verified complaint. Such an order is to be entered only when plaintiff can "show a need for relief so compelling that there is no time for notice and hearing." Dobbs on Remedies, § 2.10 (1973).
We see nothing unconstitutional about a rule that permits the issuance of a temporary restraining order. The entry of such an order does not determine the respective rights of the parties but preserves the status quo until a motion for a preliminary injunction can, after notice, be heard, affording the parties a full and fair investigation and determination according to strict legal proofs and the principles of equity. Defendant's first argument is without merit.
Defendant argues that G.S. § 1-485, authorizing the issuance of a preliminary injunction, is also void and unconstitutional on its face and as it is applied. A preliminary injunction, unlike a temporary restraining order, requires notice to the adverse party and a hearing. G.S. § 1A1, Rule 65 N.C.R.Civ.P.; Lambe v. Smith, 11 N.C.App. 580, 181 S.E.2d 783. The preliminary injunction "serves as an equitable policing measure to prevent the parties from harming one another during the litigation; to keep the parties, while the suit goes on, as far as possible in the respective positions they occupied when the suit began." Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953). See generally Dobbs on Remedies, § 2.10 (1973). We fail to see how G.S. § 1-485, authorizing preliminary injunctions, is unconstitutional. Defendant's second argument is without merit.
A preliminary mandatory injunction may be issued when an easement into one's property has been obstructed. Leaksville Woolen Mills v. Land Company, 183 N.C. 511, 112 S.E. 24. In the case at bar, the trial judge heard evidence before issuing the preliminary injunction. Defendant has not preserved this evidence in the record on appeal; consequently, we must presume *223 that the evidence supported the findings and rendered the findings conclusive. In re Reassignment of Albright, 278 N.C. 664, 180 S.E.2d 798.
Affirmed.
CAMPBELL and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335892/ | 474 S.E.2d 740 (1996)
222 Ga. App. 563
OWENS et al.
v.
HEWELL et al.
No. A96A1404.
Court of Appeals of Georgia.
August 20, 1996.
McKinney & Salo, Jan McKinney, Norcross, for appellants.
Barnhart, O'Quinn & Williams, Michael A. O'Quinn, Margaret E. Sanders, Atlanta, for appellees.
*741 BLACKBURN, Judge.
Mary and Clarence Owens appeal the trial court's order granting summary judgment to Terry Hewell and the City of Loganville based upon the expiration of the statute of limitation and the inapplicability of OCGA § 9-2-61 to state cases originally filed in federal court. The issues presented are: Do the renewal provisions of OCGA § 9-2-61 apply to state actions which were originally filed in federal court, and if so, from what date does the renewal period run for such cases.[1]
On October 29, 1991, Mary Owens was involved in a motor vehicle collision with Hewell, a Loganville police officer. Following the collision, Owens and her husband filed a lawsuit against Hewell and the City of Loganville in the United States District Court for the Northern District of Georgia. Owens asserted both civil rights claims and pendent state law tort claims pursuant to 28 U.S.C.A. § 1367(a). Her husband sought relief for loss of consortium. The United States District Court dismissed the Owenses' federal claims for failure to state a claim upon which relief could be granted. Consequently, the Owenses' state law tort claims were also dismissed for lack of subject matter jurisdiction.
The Owenses appealed to the Eleventh Circuit Court of Appeals, which on January 7, 1994, affirmed the District Court's dismissal. The Owenses, without seeking a stay, then petitioned the United States Supreme Court for certiorari, which was denied on October 3, 1994. On November 2, 1994, the Owenses refiled their tort claims in Walton County Superior Court under the renewal provisions of OCGA § 9-2-61. The Superior Court granted summary judgment in favor of Hewell and the City of Loganville, finding that OCGA § 9-2-61 was not applicable in this case because the action was originally filed in federal court and that, consequently, the Owenses' claims were barred by the statute of limitation. This appeal ensued.
Since its amendment in 1985, OCGA § 9-2-61 permits a plaintiff whose timely filed federal action is dismissed without prejudice to renew that claim in a state court, within the original statute of limitation period or within six months after the dismissal, whichever is later. See O'Neal v. DeKalb County, 667 F. Supp. 853 (N.D.Ga.1987), aff'd, 850 F.2d 653 (11th Cir.1988). OCGA § 9-2-61 applies to involuntary, as well as voluntary dismissals, where the merits of the case are not adjudicated. Swartzel v. Garner, 193 Ga.App. 267, 268, 387 S.E.2d 359 (1989).
OCGA § 9-2-61 requires plaintiffs to refile their claims within six months of their having been dismissed in federal court. The Owenses assert that their action was timely under OCGA § 9-2-61 because they refiled it within six months of the United States Supreme Court's denial of their petition for certiorari. Hewell and the City of Loganville contend that the Owenses' action is barred because the renewal period runs from the date of the Eleventh Circuit's decision affirming the District Court's dismissal. The first impression question to be resolved is from which date does the six-month renewal period under OCGA § 9-2-61 run, the date of the Eleventh Circuit Court of Appeals' decision, or the date of the U.S. Supreme Court's denial of the subsequent petition for certiorari?
Pursuant to 28 U.S.C.A. § 1291, the Owenses had the statutory right to appeal to the *742 United States Court of Appeals. However, the Owenses did not have a statutory right to appeal to the United States Supreme Court. See 28 U.S.C.A. § 1254(1); see also Potts v. Flax, 313 F.2d 284, 290, n. 6 (5th Cir.1963) ("grant of certiorari is a discretionary review and not one which the Supreme Court must hear as a matter of right"). The Eighth Circuit Court of Appeals addressed this issue in Glick v. Ballentine Produce, 397 F.2d 590 (8th Cir.1968).
In Glick, plaintiffs' original action was dismissed for failure to state a claim. Id. at 591. The dismissal was affirmed by the Eighth Circuit Court of Appeals, and plaintiffs sought a writ of certiorari from the United States Supreme Court which was denied. Id. The plaintiffs refiled their action less than one year after their writ was denied but more than one year after their dismissal was affirmed by the Eighth Circuit.
The renewed action was dismissed by the trial court for failure to comply with the one-year limitation of the renewal statute therein involved. The Eighth Circuit Court of Appeals affirmed because the plaintiffs never sought a stay while petitioning for certiorari and rejected the plaintiffs' argument that their action did not reach its final disposition until the United States Supreme Court denied certiorari. "We find no support for the contention that the filing of a petition for a writ of certiorari prevents the judgment of [the Eighth Circuit Court of Appeals] from becoming final until the [United States] Supreme Court acts upon the petition, where no stay of mandate has been filed under 28 U.S.C.A. § 2101(f).[[2]] ... While it is true that the actual granting of a writ of certiorari does operate as a stay [cit.] the mere petition for certiorari does not have such an effect." Id. at 594.
While this Court is not bound to follow Glick, supra, its logic is persuasive. The Owenses' unsuccessful pursuit of a discretionary appeal to the United States Supreme Court did not extend their right to renew their action under OCGA § 9-2-61, absent a stay, and the six-month renewal period thus ran from the date of the Eleventh Circuit Court of Appeals' affirmance of the trial court's dismissal of their action.
The trial court based its summary judgment on the erroneous determination that OCGA § 9-2-61 does not apply to claims originally filed in federal courts. This was the law prior to its amendment in 1985. For the reasons outlined above, however, the renewal period had expired prior to the bringing of the subject action and is thus barred by the statute of limitation. Appellee was therefore entitled to summary judgment and "a grant of summary judgment must be affirmed if it is right for any reason." Hanna v. McWilliams, 213 Ga.App. 648, 651, 446 S.E.2d 741 (1994).
Therefore, the trial court did not err in finding that appellants' claims are barred by the statute of limitation.
Judgment affirmed.
BEASLEY, C.J., and BIRDSONG, P.J., concur.
NOTES
[1] As amended in 1985, OCGA § 9-2-61 provides in pertinent part: "(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or, if permitted by the federal rules of civil procedure, in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, ... provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once .... (c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state."
[2] 28 U.S.C.A. § 2101(f) provides in pertinent part: "In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335890/ | 474 S.E.2d 658 (1996)
222 Ga. App. 550
BOB
v.
HARDY et al.
HARDY et al.
v.
BOB.
Nos. A96A0980, A96A0981.
Court of Appeals of Georgia.
August 8, 1996.
Reconsideration Denied August 20, 1996.
Certiorari Denied November 22, 1996.
*660 Barham & Dover, J. Carol Sherwood, Jr., Valdosta, Berrien L. Sutton, Homerville, for appellant.
Michael J. Bowers, Atty. Gen., George P. Shingler, Deputy Atty. Gen., Eric A. Brewton, Carlton L. Kell, Asst. Attys. Gen., for appellees.
*659 BIRDSONG, Presiding Judge.
This is a pre-Tort Claims Act case in which certain DOT employees were alleged to have been negligent in regard to the maintenance, construction and design of a guardrail and embankment on I-75 south of Valdosta. In November 1988, Emma Bob was a passenger in a car driven south on I-75; she was injured when the driver fell asleep, ran off the road and plunged down a steep embankment. She filed suit contending that her quadriplegia occurred as a result of the lack of a guardrail of sufficient length and strength to protect against a steep embankment, the failure of DOT employees to have eliminated the embankment if a proper guardrail was not to be provided and the failure to provide rumble strips and reflectors to alert motorists who leave the traveled portions of the roadway. Prior to the incident, the guardrail was reconstructed as a part of a bridge widening project; however, this was not a general program for upgrading guardrails. DOT replaced the guardrails which had to be removed for the bridge to be widened. The design plans included guardrail specifications. Appellant's expert, Mr. Roberts, opined that the guardrail at the location of the incident appeared to conform to design plans.
DOT contractors who performed certain improvement work on the embankment and guardrail were previously found to have no responsibility for the dangerous condition as their work was accepted by DOT employees. See generally Bob v. Scruggs Co., 204 Ga.App. 375, 419 S.E.2d 100.
In Case No. A96A0980, appellant Emma Bob appeals from the grant of summary judgment to certain DOT construction, maintenance and design personnel and to Mr. Thomas Moreland in his capacity of state highway engineer.
In Case No. A96A0981, cross-appellants appeal from the denial of summary judgment to Floyd Hardy and Kim Fulbright, asserting their alleged negligent actions were not, as a matter of law, the proximate cause of Emma Bob's injuries, and appeal from the denial of the deceased William Johnson's motion to dismiss. Held:
Case Nos. A96A0980, A96A0981
1. The applicable summary judgment standard is that of Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. However, a grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga.App. 764, 767(5), 431 S.E.2d 746.
Case No. A96A0980
2. Appellant contends the trial court erred in granting summary judgment to Mr. Bullard, Mr. Burnsed, Mr. Walker, Mr. Senkbeil and Mr. Byrom, who were DOT construction personnel. As to appellees Mr. Bullard, Mr. Burnsed, Mr. Walker, and Mr. Senkbeil, we find the holding in Painter v. Sorrow, 205 Ga.App. 775, 423 S.E.2d 684, although not directly in point, to be controlling. Assuming arguendo some of these appellees subsequently may have been placed on actual or constructive notice of the alleged defect in the design of the length and placement of the guardrail, to impose a legal duty on the part of these particular construction *661 engineer/supervisors to redesign the length and placement of the guardrail would, in our view, "`extend the duty of reasonable care beyond reasonable limits.' [Cit.]" Id. at 776, 423 S.E.2d 684. The trial court did not err in granting summary judgment in favor of these appellees. Mr. Byrom, the Director of Construction, testified as follows: He did not play a part in the design of the project; although he stopped at the project sites, he does not believe he stopped at the site of this incident. Mr. Byrom testified that, although Director of Construction, he did not play any part or have any input in the design of the project as reflected in its plan, and he had no responsibility for determining the length of the guardrail at the incident site. His responsibility basically extended to seeing that the project was completed according to the plans. The standards for guardrail installation contained in the plans are separate from standards pertaining to the length of a guardrail. While a project plan contains detail as to the length of a guardrail at a bridge approach, it does not necessarily "spell out" the guardrail length required for the "extended fills on down the road." This latter information would normally be provided by "the design office." He further testified that it was DOT's design office which had the responsibility to determine the length of guardrail needed for the bridge's approach; Mr. Fulbright, Mr. Brisendine (also referred to in the record as Mr. Brizendine), and Mr. Hardy were in the design department at that time. Appellee Byrom met his burden under Lau's Corp., supra; however, appellant/non-movant failed thereafter to carry her burden of going forward and pointing to specific evidence of record giving rise to a triable issue as to the scope of duty of appellee Byrom. Id. at 491, 405 S.E.2d 474. The trial court did not err as enumerated.
3. Appellant contends the trial court erred in granting summary judgment to these maintenance personnel: Mr. Hartley, district maintenance engineer, Mr. James, assistant area engineer in charge of maintenance, and Mr. Joyner, county maintenance foreman. This enumeration is without merit. There exists no genuine issue of material fact that these maintenance personnel were involved in any manner in the design of the guardrail in the bridge widening project, and appellant makes no such contention. The duty of maintenance personnel is to preserve what is there; it is not a part of daytime inspection to determine guardrail design requirements. Appellee maintenance personnel gave testimony by way of deposition which carried their burden under Lau's Corp., supra, for establishing that they had no duty to engage in or review guardrail design requirements. See also Ethridge v. Price, 194 Ga.App. 82, 84(3), 389 S.E.2d 784. Where, as here, the movants have carried their burden under Lau's Corp., supra, the non-movant may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. Precise v. City of Rossville, 261 Ga. 210, 212(3), 403 S.E.2d 47; Malaga Mgmt. Co. v. John Deere Co., supra at 767(6), 431 S.E.2d 746. Appellant has failed to do this. Additionally, we decline, as a matter of law, to impose a duty on DOT highway maintenance personnel to redesign or report to DOT design personnel any proposals for the redesign of an existing guardrail in the absence of some evidence that the maintenance personnel actually were involved in the design phase of the project at issue. "`To impose such a duty on employees in the position of [these appellees] would, in our view, extend the duty of reasonable care beyond reasonable limits.' [cit.]" Painter v. Sorrow, supra at 776, 423 S.E.2d 684; see also Ethridge, supra.
4. Appellant contends the trial court erred in granting summary judgment to Mr. Moreland, Commissioner of DOT from 1975 to 1987, and state highway engineer/chief engineer of DOT at the time plans pertaining to the project were signed with Mr. Moreland's name. Mr. Moreland gave unrefuted testimony by way of deposition that he did not sign his name to the plans. He also testified without contradiction that he did not perform any review of the plans, nor did he have any input as to the design of the roadway, the approach to the bridge or the guardrail. His signature on the plans, as state highway engineer, was merely the result of department custom. All duties with regard to the plans and design of the project were delegated by Mr. Moreland to other *662 employees. "`The rule of respondeat superior does not apply where public officers are sought to be bound by the negligence of subordinate officers or employees, unless there has been a failure to exercise due care in the selection of such subordinates, or the officers have actual knowledge of the negligent acts of their employees, and their knowledge, coupled with a refusal to correct or properly instruct such employees, amounts to a ratification of such negligent act.' [cits.]" Peavy v. Chavers, 121 Ga.App. 354, 355(1), 173 S.E.2d 749. Although Mr. Brisendine testified that Moreland's signature made the plans official, he also admitted that he did not know if Moreland personally signed the plans or whether someone else had signed his name. Although appellant's expert, Mr. Roberts, testified that the ultimate responsibility for what went on or what was failed to be done at the project site "would ultimately go up to Tom Moreland," he did not opine expressly that Mr. Moreland had any input as to the actual design of the project. Moreover, Mr. Roberts based his generalized opinion as to ultimate legal responsibility, an issue not beyond the ken of the average jury, substantially upon the fact that Mr. Moreland's signature was on the plans. At best, appellant has offered circumstantial evidence as to the overall responsibility of Mr. Moreland for approving the project plans; Mr. Moreland, on the other hand, has given direct testimony that he had delegated all design responsibilities to other employees, did not have any input as to project design, had not personally reviewed the plans and had not placed his signature to the plans. In passing upon a summary judgment motion, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Rowell v. McCue, 188 Ga.App. 528, 531, 373 S.E.2d 243. Moreover, appellee Moreland carried his burden under Lau's, supra; the burden of going forward then shifted to appellant, as non-moving party, to point to specific evidence giving rise to a triable issue. Lau's Corp., supra; compare Precise, supra at 212(3), 403 S.E.2d 47. This appellant failed to do. There is no genuine issue of fact established by the record that Mr. Moreland's duties included the actual design or construction of the roadway project. See Ethridge, supra at 84(3), 389 S.E.2d 784. The trial court did not err in granting summary judgment in favor of Mr. Moreland.
5. Appellant contends the trial court erred in granting summary judgment to Mr. Brisendine and Mr. Pierce. These appellees were never served with process in this suit. The senior assistant attorney general representing DOT filed a motion for summary judgment which sought, inter alia, a motion for summary judgment on behalf of Mr. Brisendine and Mr. Pierce asserting the cause of action against them was "barred by the statute of limitations." However the trial court, apparently considering that portion of the motion according to its substance rather than its nomenclature (see generally Cain v. Moore, 207 Ga.App. 726, 727(2), 429 S.E.2d 135), ordered appellees Brisendine and Pierce to "be dismissed on the ground of insufficiency of service of process." Compare Cheshire Bridge Enterprises v. Lexington Ins. Co., 183 Ga.App. 672, 674(2), 359 S.E.2d 702. Notwithstanding the nature of the trial court's ruling, appellant crafted his enumeration of error to assert that the trial court erred in granting these appellees summary judgment "on the ground that the statute of limitations had expired." This tailored enumeration does not reasonably encompass a claim that the trial court erred in dismissing appellees from the suit on the ground of insufficiency of service of process, the separate ground relied upon by the trial court. "`On appeal an enumeration of error cannot be enlarged by (a) brief to give appellate viability to an issue not contained in the original enumeration.' [Cit.] One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold. [cits.]" Crotty v. Crotty, 219 Ga.App. 408, 410(3), 465 S.E.2d 517. The insufficiency of service issue has not been preserved on appeal.
Case No. A96A0981
6. Genuine issues of material fact exist whether cross-appellants Mr. Hardy and Mr. Fulbright of the DOT design office were liable for cross-appellee's injuries.
*663 The posture of the record does not establish by clear, plain, palpable and undisputed evidence that no genuine issue of material fact exists as to one or more essential elements of proof as to the claims against Mr. Hardy and Mr. Fulbright. See generally Lau's Corp., supra. "In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion." Moore v. Goldome Credit Corp., 187 Ga.App. 594, 596, 370 S.E.2d 843. A reasonable inference to be drawn from the driver's testimony is that he was traveling less than 55 mph when the incident occurred. Cross-appellee's experts expressed opinions which provided a sufficient basis, when examined under Lau's Corp., standards, to support the trial court's denial of summary judgment to cross-appellants. It is well settled that "opinion evidence can be sufficient to preclude the grant of summary judgment." Mitchell v. Rainey, 187 Ga.App. 510, 513, 370 S.E.2d 673. No legal basis exists to depart from the general rule that "`"[q]uestions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases."' [cits.]" Horney v. Lawrence, 189 Ga.App. 376, 377(3), 375 S.E.2d 629. The trial court did not err in denying cross-appellants' summary judgment motions.
7. As cross-appellee/plaintiff voluntarily dismissed Mr. Johnson from the suit prior to the trial court's order denying the deceased Johnson's motion to dismiss, we find that cross-appellants' enumeration of error as to this matter is moot.
Judgments affirmed.
BEASLEY, C.J., and BLACKBURN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335934/ | 474 S.E.2d 243 (1996)
222 Ga. App. 419
HYMAN
v.
The STATE.
No. A96A1090.
Court of Appeals of Georgia.
July 22, 1996.
Reconsideration Denied August 6, 1996.
*244 Jason K. Hoffman, San Francisco, CA, for appellant.
C. Paul Bowden, Dist. Atty., for appellee.
BLACKBURN, Judge.
Claude Demetrius Hyman appeals his convictions of armed robbery, attempted armed robbery, two counts of aggravated assault of a peace officer, and two counts of interference with government property.
1. In his first enumeration of error, Hyman asserts that the trial court erred in failing to grant his motion for directed verdict on the armed robbery and attempted armed robbery charges. Hyman contends that he had abandoned any effort to commit the crimes charged.[1]
The evidence viewed in the light most favorable to the verdict shows that Hyman was arrested after he ran his vehicle into an embankment while being pursued by two police cars. After his arrest, Hyman made a statement to Kay Fulford, a special agent with the Georgia Bureau of Investigation. In his statement, Hyman admitted that he was driving his girl friend's 1986 red Pontiac Sunbird and that his two passengers were Mark Edwards and Carlos Laster.[2] Hyman stated that he had taken Laster to Laster's house so that Laster could get his "thing." After Laster obtained his "thing," Hyman realized that the "thing" was a sawed-off shotgun with pistol grips. Laster said that they needed to make a "hit," and that he would split any money with Hyman and Edwards.
Laster instructed Hyman to drive by a detail shop where several people were working. Laster told Hyman and Edwards to walk by the detail shop to determine how many people were present. Laster was then going to approach with the gun, and Hyman and Edwards were supposed to take the *245 victims' money and jewelry. Laster failed to approach with the gun when Hyman and Edwards were at the detail shop, so Hyman agreed with Edwards' suggestion that they "pull out." As Hyman and Edwards got back to the car, Hyman heard Laster's gun cock and Laster yell "Get down, get down." Hyman and Edwards started back to the detail shop where Hyman saw a couple of people on the ground and another man running away. Upon seeing a car coming toward them that looked like a police car, Hyman and Edwards returned to their car. Laster got back to the car and said, "That's trouble, go, go, go." Hyman then drove the car while Laster fired his gun two different times at the two police cars chasing them. After Hyman turned off the highway and onto a dirt road, the car ran into an embankment.
Hyman argues that because he agreed to "pull out," and did not participate in the actual robbery, his motion for directed verdict should have been granted. While we recognize that mere presence at the scene of a crime is insufficient to convict, "the jury was authorized to infer his criminal intent from his conduct before, during, and after the commission of the crime." Thompson v. State, 210 Ga.App. 655, 656, 436 S.E.2d 799 (1993). In the present case, although the robbery was not accomplished as planned, by Hyman's own statement, after he heard Laster's gun cock he started to go back to the detail shop, an act which the jury could infer was inconsistent with an intent to abandon the crime. Hyman went back to his car only upon seeing a car he thought was a police car, from which the jury could infer an increased probability of detection. See OCGA § 16-4-5(b)(1). Moreover, Hyman's assistance in the participants' flight by driving was consistent with his participation in the criminal enterprise.
"A directed verdict of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1(a). On appeal we must view the evidence in the light most favorable to the verdict, [Hyman] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve." (Citations and punctuation omitted.) Thompson, supra.
Having viewed the evidence under the appropriate standards of appellate review, we conclude that a rational trier of fact could find Hyman guilty beyond a reasonable doubt of armed robbery and attempted armed robbery. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
2. In his second enumeration of error, Hyman contends the trial court erred in failing to grant his motion for directed verdict on the two aggravated assault and two interference with government property charges. Hyman asserts that because only one of the officers testified, the additional charge was supported only by hearsay.
James York, with the Tift County Sheriff's Department, testified that he was informed by a witness that a man in a white shirt was running down the street carrying a shotgun. Officer York testified that he drove to the area indicated by the witness and he saw a man in a white shirt getting into a car, which Officer York proceeded to follow. After Officer York attempted to stop the car he was following by activating his blue lights, the car sped up. During the chase which ensued, the person in the back seat of the car shot the shotgun in Officer York's direction. Officer York testified that he could see the flash from the gun before hearing the pellets hit his car. Sergeant Brown, driving the second pursuing police car, pulled his car in front of Officer York's car and the chase continued. Officer York saw two more flashes come from the vehicle being chased.
We have previously held that "intentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault." Steele v. State, 196 Ga.App. 330, 331, 396 S.E.2d 4 (1990). Therefore, construing the evidence in favor of the verdict we find that Officer York's testimony was sufficient to support both aggravated assault charges.
*246 "A person commits the offense of interference with government property when he ... damages ... government property." OCGA § 16-7-24(a). In support of these charges, Officer York identified photographs of his vehicle and the vehicle driven by Sergeant Brown. Sergeant Brown's vehicle's blinker was broken by shotgun blast. Officer York further testified that their vehicles were inspected daily. Although Hyman complains that Officer York had no way of knowing that Sergeant Brown's blinker was broken by the shotgun blast, the basis of Officer York's knowledge was never questioned. Therefore, because Officer York's knowledge could have been first hand, rather than hearsay, we cannot assume that the testimony was hearsay. On appeal, we must construe the evidence to support the verdict, and by so construing the evidence we find it sufficient to support the crimes charged. See Jackson v. Virginia, supra.
3. In his third enumeration of error, Hyman contends the State failed to provide him with all his in-custody statements prior to trial and the admission thereof required a mistrial. Hyman maintains that the additional statements not provided to him were harmful to his defense because they tended to show that Hyman was aware that Laster was going to get his gun when Hyman took Laster to Laster's house. Hyman, however, was provided with a copy of his statement which indicated that he was aware Laster had obtained a sawed-off shotgun from his house prior to discussing making "a hit."
Pretermitting whether the State violated former OCGA § 17-7-210, we note that the punishment for failure to comply with the statutory requirements is the exclusion of such evidence from the State's "case-in-chief or in rebuttal." See former OCGA § 17-7-210(c). In the present case, the testimony to which Hyman objects was rendered during defense counsel's cross-examination of the State's witness. The State did not pursue the objected-to line of questioning. Therefore, we do not find any error. See Stuldivant v. State, 202 Ga.App. 64(1), 413 S.E.2d 247 (1991). See also Henson v. State, 168 Ga.App. 210, 211(2), 308 S.E.2d 555 (1983).
4. In his final enumeration of error, Hyman contends that his conviction of two counts of aggravated assault must merge with the two counts of interference with government property.[3] We cannot agree because the evidence indicated that at least two shots were fired at each officer. Therefore, the State did not use identical evidence to prove each crime. Furthermore, the elements of interference with government property are not included in the elements required for aggravated assault. Compare OCGA §§ 16-5-21 and 16-7-24(a). Hyman's enumeration of error is without merit.
Judgment affirmed.
BEASLEY, C.J., and BIRDSONG, P.J., concur.
NOTES
[1] OCGA § 16-4-5 provides: "(a) When a person's conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose. (b) A renunciation of criminal purpose is not voluntary and complete if it results from: (1) A belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose; or (2) A decision to postpone the criminal conduct until another time."
[2] Edwards and Laster were Hyman's co-defendants, but they are not involved in this appeal.
[3] OCGA § 16-1-7(a) provides that "[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335937/ | 474 S.E.2d 634 (1996)
222 Ga. App. 476
CORNELL
v.
The STATE.
No. A96A1437.
Court of Appeals of Georgia.
July 22, 1996.
Reconsideration Denied August 13, 1996.
*635 Letitia B. Delan, for appellant.
Eddie Cornell, pro se.
J. Tom Morgan, District Attorney, Robert M. Coker, Jacqueline S. Hardy, Assistant District Attorneys, for appellee.
McMURRAY, Presiding Judge.
Defendant was tried before a jury for kidnapping with bodily injury, rape, false imprisonment, possession of a firearm by a convicted felon and obstruction of an officer in that he did resist and obstruct S.E. Buice and G.R. Horner, law enforcement officers, in the lawful discharge of their duties, by offering and doing violence to the officers. The evidence adduced at trial reveals that defendant physically resisted arrest when law enforcement officers entered defendant's home to execute a warrant for defendant's arrest. The jury found defendant guilty of obstruction of an officer, but could not reach verdicts as to the other crimes charged in the indictment. This appeal followed the denial of defendant's motion for new trial. Held:
Defendant challenges the sufficiency of the evidence, arguing that he did not willfully and knowingly resist the officers when they entered his home. Defendant explains that he was merely attempting to stand when the arresting officers forcibly entered his home and violently subdued him with unwarranted force. This enumeration of error is without merit.
"On appeal of criminal convictions, we do not weigh the evidence or determine the credibility of witnesses; these are jury functions. When the jury has considered the evidence and made its finding, then on appeal the evidence is construed in favor of the jury's verdict. Gurlaskie v. State, 196 Ga.App. 794, 397 S.E.2d 66. On review of a verdict of guilty, we merely determine whether the evidence is sufficient from which a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the offense as charged. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560." Williams v. State, 202 Ga.App. 728(1), 729, 415 S.E.2d 327. In the case sub judice, Officer S.E. Buice of the DeKalb County Police Department testified that defendant "made a lunge toward [him] from the couch" when he attempted to execute the warrant for defendant's arrest. Officer Buice explained that a violent struggle then ensued and that he and other law enforcement officers subdued defendant and executed the warrant for defendant's arrest. Detective G.R. Horner of the DeKalb County Police Department testified and corroborated Officer Buice's testimony that defendant violently resisted arrest. This evidence alone is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of obstruction of an officer as charged in the indictment. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, supra; Duitsman v. State, 212 Ga.App. 348(1), 441 S.E.2d 888.
Judgment affirmed.
JOHNSON and RUFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335969/ | 474 S.E.2d 627 (1996)
222 Ga. App. 324
WORTHY et al.
v.
KENDALL et al.
No. A96A0874.
Court of Appeals of Georgia.
July 15, 1996.
*628 Richard T. Bridges, Thomaston, for Appellants.
Alan W. Connell, Thomaston, for Appellees.
BLACKBURN, Judge.
Betty Worthy and her husband appeal the judgment entered following a jury trial of their tort action stemming from an automobile collision. Worthy sought damages for her personal injuries, and her husband sought damages for his loss of consortium. The jury returned a verdict of $319 for Worthy and $0 for her husband. Worthy and her husband appeal the trial court's denial of their motion for new trial.
On March 25, 1993, Worthy was a passenger riding in the front seat of a car driven by Minerva Williams. Williams was driving east-bound on East Thompson Street when she collided with a car driven by Matthews Charles Kendall. At the time of the collision, Kendall was in the process of turning right onto East Thompson from Glendale Road. It is undisputed that traffic entering East Thompson from Glendale is required to stop and yield the right-of-way to traffic traveling on East Thompson pursuant to a stop sign erected on Glendale. The proximate cause of the accident, however, is in dispute.
Kendall testified that he stopped at the stop sign on Glendale and noticed that two cars were traveling east-bound on East Thompson Street, the second car being the vehicle driven by Williams. The first vehicle had its turn signal on and slowed down to make a right-hand turn onto Glendale. As a result, Kendall believed it was safe to turn right onto East Thompson and did so. He further testified that Williams, rather than remaining behind the turning vehicle ahead of her, illegally passed it, resulting in the collision. Williams, on the other hand, testified that there was no turning vehicle ahead of her, and that Kendall simply failed to yield the right-of-way to traffic on East Thompson. Worthy testified that she did not see the accident occur because she was facing the back of the car at the time.
1. Worthy and her husband contend that the trial court erred in allowing the defendants *629 to introduce, over objection, collateral source evidence of Worthy's receipt of disability benefits. The trial court overruled the objection on the grounds that Worthy's husband "opened the door" to such testimony when his counsel asked: "How have y'all handled the finances on [one] income?" and Mr. Worthy testified that he had exhausted his retirement fund and worked a large amount of overtime, which aggravated his own existing leg injury.
Evidence of disability payments is generally inadmissible under the collateral source rule. Dietz v. Becker, 209 Ga.App. 678, 680, 434 S.E.2d 103 (1993). "[I]mpeachment by evidence of collateral sources is only allowed if the false testimony is related to a material issue in the case. Waits v. Hardy, 214 Ga. 495, 496 (105 SE2d 719) (1958); Mann v. State, 124 Ga. 760, (53 S.E. 324) (1906)." Warren v. Ballard, 266 Ga. 408, 467 S.E.2d 891 (1996).
Georgia law does not authorize the Worthys to recover damages for the exhaustion of the husband's retirement fund or for the fact that he worked overtime to pay bills after his wife's accident. The financial resources of Worthy and her husband are irrelevant to the issue of damages. See Denton v. Con-Way Southern Express, 261 Ga. 41, 42, 402 S.E.2d 269 (1991), overruled on other grounds, Grissom v. Gleason, 262 Ga. 374, 376, 418 S.E.2d 27 (1992); see also Warren, supra (a plaintiff's anxiety over bills following an accident is immaterial). As a result, such testimony did not relate to a material issue and is not subject to impeachment by collateral source evidence. The proper remedy would have been for the defendants to object to this line of questioning. See Warren v. Ballard, supra.
We cannot say that the trial court's error in admitting evidence of Worthy's disability payments was harmless because it is likely that it negatively impacted the amount awarded by the jury. Compare Dietz, supra at 680, 434 S.E.2d 103. Accordingly, the trial court's judgment must be reversed and the case remanded for retrial consistent with this opinion.
2. We will address the remaining enumerations of error which are capable of repetition at retrial.
(a) The Worthys contend that the trial court erred in charging the jury on comparative negligence over their objection. At the time of the collision Worthy had taken off her seatbelt and was riding backwards in the front seat propped up on her knees in order to look into a passenger's mouth, who was complaining that he had a broken tooth. In light of this evidence, the jury could have rationally believed that Worthy's position in the car at the time of the accident evidenced a failure of Worthy to use ordinary care and contributed to the severity of her injuries. As long as there is "any evidence, however slight," that a plaintiff was negligent, a comparative negligence charge will not constitute reversible error. See Beringause v. Fogleman Truck Lines, 209 Ga.App. 470, 472, 433 S.E.2d 398 (1993).
Moreover, Williams testified that she failed to see Kendall's vehicle until she was about 10 feet from it, although there was at least 100 feet of visibility in front of the intersection and she testified that no other cars were ahead of her. From this evidence, a jury could infer that Williams' view may have been blocked by Worthy at the time of the accident. As long as there is some slight "indirect evidence from which a jury might infer that" a passenger was riding in a position that is likely to interfere with the driver's view ahead or to the sides in violation of OCGA § 40-6-242(b), it is not an error to give a charge on comparative negligence. Brown v. Sims, 174 Ga.App. 243, 246, 329 S.E.2d 523 (1985). As a result, this enumeration of error is without merit.
(b) The Worthys contend that the trial court erred in giving jury charges as to OCGA § 40-6-46 (no-passing zones), OCGA § 40-6-45 (driving left of the centerline), and OCGA § 40-6-180 (basic rules of the road).
The Worthys contend that it was error for the trial court to give the preceding charges because the negligence of Williams, as the host driver, cannot be imputed to Worthy, the passenger. See King v. Parson, *630 149 Ga.App. 28, 29-30, 253 S.E.2d 426 (1979). In his defensive pleadings, and in his testimony at trial, however, Kendall alleged that the negligence of Williams, the host driver, was the sole proximate cause of the accident.[1] "The issue of the host driver's negligence as constituting the sole proximate cause of the plaintiff's injuries having been injected into this case by the defensive pleadings and the evidence, it was pertinent for the trial judge to charge the jury on this subject. [Cit.]" Stroud v. Willingham, 126 Ga.App. 156, 160, 190 S.E.2d 143 (1972). As a result, this enumeration is without merit.
Judgment reversed and case remanded.
BEASLEY, C.J., and BIRDSONG, P.J., concur.
NOTES
[1] Although Kendall pled guilty to the traffic citation he received for failing to yield the right-of-way, such guilty plea does not establish as a matter of law that Kendall was negligent. See Peacock v. Strickland, 198 Ga.App. 406, 407, 401 S.E.2d 601 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335975/ | 474 S.E.2d 762 (1996)
222 Ga. App. 589
In the Interest of L.N.M., a child.
No. A96A1010.
Court of Appeals of Georgia.
August 22, 1996.
*763 Twitty & Bankston, Michael L. Bankston, Camilla, for appellant.
Robert E. Hughes, Camilla, for appellee.
BLACKBURN, Judge.
L.N.M. appeals the trial court's adjudication of her as a delinquent for violating OCGA § 16-11-127.1.
It is not disputed that L.N.M. brought an instrument to school described as a "silver retractable razor blade" or a utility knife with a blade less than three inches long. The sole issue on appeal is whether the instrument she brought to school fell within the definition of a weapon pursuant to OCGA § 16-11-127.1.
OCGA § 16-11-127.1(a)(2) defines "weapon" to include "any pistol, revolver, or any weapon designed or intended to propel a missile of any kind, or any dirk, bowie knife, switchblade knife, ballistic knife, any other knife having a blade of three or more inches, straight-edge razor, spring stick, metal knucks, blackjack, any bat, club, or other bludgeon-type weapon, or any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain, or any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart, or any weapon of like kind, and any stun gun or taser as defined in subsection (a) of Code Section 16-11-106." The State asserted that the instrument herein involved fell under the straight-edge razor designation.
"`It is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning.'" Fields v. State, 216 Ga.App. 184, 186, 453 S.E.2d 794 (1995). The term razor is defined in Webster's Third New International Dictionary as "a keen-edged cutting instrument made with the cutting blade and handle in one (as a straight razor) or with the cutting blade inserted into a holder (as a safety razor or electric razor) and used chiefly for shaving or cutting the hair." It is clear that a utility knife is a "keen-edged cutting instrument" made either with a connected handle or with a razor inserted into a holder. From the testimony describing the instrument, it is evident that the razor had a straight edge as listed in the applicable Code section. The positioning of the handle on the straight-edged razor, whether it folds over the razor or allows the razor to slide into the holder, is of little significance to whether the instrument is a weapon pursuant to OCGA § 16-11-127.1(a)(2) because the instrument has a razor with a straight edge.
"We have recognized that mathematical certainty is not necessary in statutes. A criminal statute is sufficiently definite if its terms furnish a test based on knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command. In addition, the statute must be read as a whole, each phrase or word in conjunction with the other in order to determine the scope of prohibited activity." (Citations and punctuation omitted.) Dorsey v. State, 212 Ga.App. 830, 831, 442 S.E.2d 922 (1994).
Whether the silver retractable razor blade met the definition set forth in OCGA § 16-11-127.1(a)(2) was a question for the finder of fact. Cf. id. Furthermore, "[d]eterminations of fact ... are questions which must be resolved by the fact finder, and appellate courts must accept such determination on review unless they are clearly erroneous." (Punctuation omitted; emphasis supplied.) State v. Wilson, 220 Ga.App. 538, 539, 469 S.E.2d 804 (1996).
We cannot say that the trial court erred in finding that the retractable razor blade at issue was one which was prohibited by OCGA § 16-11-127.1. As the trial court's determination is not clearly erroneous, L.N. M.'s adjudication as a delinquent is correct.
Judgment affirmed.
BEASLEY, C.J., and BIRDSONG, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335978/ | 205 Va. 277 (1964)
WARREN HOWARD CALDWELL
v.
COMMONWEALTH OF VIRGINIA.
Record No. 5736.
Supreme Court of Virginia.
June 15, 1964.
Dabney Overton and Blake T. Newton (Overton & Overton, on brief), for the plaintiff in error.
Present, Eggleston, C.J., and Spratley, Buchanan, Snead, I'Anson and
1. On appeal from conviction of driving while intoxicated defendant contended the state had failed to show compliance with Code 1950, section 18.1-55, in that the arresting officer had failed to inform him of his right to refuse to take the blood test to which he consented when the officer told him the law required this of him. The argument was held without merit because under the law defendant had no right to refuse the test, though he had the power to refuse and be subject to criminal penalties for the refusal.
2. The officer was not required under the statute to inform defendant of his right to have the test made within two hours, by a physician of his own choice, and to know the results of the test.
3. The evidence was sufficient to show that the doctor complied with the statute in all the particulars challenged by defendant, and in particular that he used properly sterilized instruments.
4. Once the blood sample is extracted, the doctor himself is not required to perform the acts of sealing the vials, mailing, and so forth. These may be done by other persons at his direction.
5. Defendant was given a sample of his blood with an instruction sheet naming laboratories to which it should be sent without delay for analysis. While incarcerated for eighteen hours he made no request that it be sent and when released he threw it away. Under these circumstances it could not be said that he was, through no fault of his own, deprived of the right to have the analysis made and the results received in evidence.
6. Defendant was not deprived of his constitutional right not to give evidence against himself. Since he had under the statute and in fact consented to take the test the blood sample was lawfully gotten and the certificate of analysis attested by the Chief Medical Examiner was properly admitted.
Error to a judgment of the Circuit Court of Essex county. Hon. Daniel Weymouth, judge presiding. The opinion states the case.
R. D. Mcllwaine, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.
SNEAD
SNEAD, J., delivered the opinion of the court.
Warren Howard Caldwell, defendant, was found guilty on a warrant charging that he did "operate a motor vehicle on the highways of the State of Virginia while under the influence of intoxicating beverages" (Code, | 18.1-54), and that he had been previously convicted of the same offense within a period of ten years. The jury fixed his punishment at a fine of $200 and by confinement in jail for a term of one month. Code, | 18.1-58. The case is before us upon writ of error and supersedeas to the judgment of conviction entered on the verdict.
On April 1, 1963, at approximately 7:45 p.m. trooper P.R. Jeffrey, Jr., was proceeding north on U.S. Route No. 17 in Essex county. He was "attempting to clock" the speed of a station wagon. When the speed of that vehicle was slackened he observed a pick-up truck in front of it traveling in the same direction, which was being driven by Caldwell, the defendant, over into the southbound lane and back into the northbound lane. The trooper was unable to pass defendant's truck and waited until it reached Brays Fork, a short distance away. There defendant turned his vehicle into a service station and ran it up on a curb between eight and twelve inches in height. The truck "rolled back" off the curb and defendant drove it again onto the curb. According to the trooper this performance occurred three times. The defendant alighted from his vehicle and the trooper *279 observed that he was "unsteady on his feet, his eyes were glassy, and he had thick speech." A "faint odor of alcohol" was detected on his breath. A bottle of vodka was found on he seat of the truck and defendant stated that he had "had a couple of drinks with a war buddy of his" from this bottle.
The trooper informed defendant that he was being placed under arrest for operating his vehicle under the influence of alcohol, and that "a new Virginia law required you to submit to a blood test." The trooper asked defendant "would he like to take one" and he replied: "[Yes,] let's go and get it over with now."
The trooper carried defendant to a justice of the peace who issued a warrant charging him with the offense for which he was tried and convicted. From there he was taken to the office of Dr. Douglas Andrews in Tappahannock where 20 c.c. of defendant's blood was extracted for chemical analysis.
The defendant testified that it was his intention to proceed south on Route No. 360 towards Richmond; that by mistake he took U.S. Route 17 where it intersects with Route No. 360; that after he had traveled a short distance he turned around and proceeded back, "looking at the signs" in order to turn left on Route No. 360; that while looking for the signs he "probably" crossed over the center line of the highway, and that he drove into the service station to get his bearings and information about making the desired turn. He further testified that he was not "intoxicated", and that an operation for varicose veins in his leg affected his ability to walk.
In his assignments of error defendant contends that the court erred in admitting in evidence the results of the blood test, and in refusing to strike the Commonwealth's evidence and dismiss the prosecution because (1) the Commonwealth failed to comply with the provisions of Code, | 18.1-55 [1], the "Implied Consent Law", and (2) he "was *280 deprived of his right not to give evidence against himself, as guaranteed to him under the Constitutions of Virginia and the United States."
"(b) Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a public highway in this State on and after July one, nineteen hundred sixty-two shall be deemed thereby to have agreed as a condition of such operation to consent to, and shall be entitled to, have a sample of his blood taken for a chemical test to determine the alcoholic content thereof if he is arrested for a violation of | 18.1-54 * * *."
"(c) Only a physician, registered professional nurse or graduate laboratory technician, using some type of a cleanser or sterilizer for the instruments used and for the part of the body from which the blood is taken, other than alcohol or other substance which might in any way affect the accuracy of the test, shall withdraw blood for the purpose of determining the alcoholic content therein; where practicable, the physician of such person's choice shall withdraw said blood. The blood sample shall be placed in each of two sealed containers provided by the Chief Medical Examiner. Upon completion of taking of the sample, the containers shall be resealed in the presence of the accused after calling the fact to his attention. The containers shall be especially equipped with a sealing device, sealed so as not to allow tampering, labelled and identified showing the person making the test, the name of the accused, the date and time of taking. One sample shall then be delivered by the person who withdrew it to the police officer for transporting or mailing to the Chief Medical Examiner; and the other sample shall be delivered to the person accused, * * *."
* * *
"(f) * * * [When] the person arrested within two hours of the time of his arrest requests or consents to the taking of a blood sample for chemical analysis, if the result of such chemical analysis of the blood sample taken is not received in evidence at the trial for any reason whatever, including but not limited to the failure on the part of any person, except the person arrested,"
to comply strictly with every provision of this section, then the rights of the person arrested shall be deemed to have been prejudiced, and he shall be found not guilty of any offense under | 18.1-54, * * *. (Italics supplied.)
"(g) If a person, after being arrested and after having been advised by the arresting officer that the law of Virginia requires a person accused of the violation of | 18.1-54 or of a similar ordinance of any county, city or town to permit a sample of his blood to be taken so that a test may be made of his blood to determine the alcoholic content thereof and that refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of this State, then refuses to permit the taking of blood for such a test and does further so refuse upon being taken before a committing justice, and being there again by the committing justice advised of the law requiring a blood test to be taken and the penalty for refusal, all within two hours of the alleged offense, and so declares again his refusal in writing upon a form provided by the committing justice, then no blood sample shall be taken."
"(h) * * * If such person refuses or fails to execute such declaration, the committing justice shall certify such fact and that the committing justice advised the person arrested that such refusal or failure, if found to be unreasonable, constitutes grounds for revocation of such person's license to drive upon the form and sign same. The committing or issuing justice shall forthwith issue a warrant charging the person refusing to take the test to determine the alcoholic content of his blood, with violation of this section, which warrant shall be executed as any other criminal warrant. The defendant shall be given a copy of said warrant."
Note: Section 18.1-55 was repealed by the 1964 General Assembly and | 18.1-55.1, which made substantial changes, was enacted in lieu thereof, effective July 1, 1964.
The defendant contends that the Commonwealth failed to comply with Code, | 18.1-55 in that (1) the trooper failed to inform him of the provisions of the law; (2) the doctor who extracted his blood did not comply with the plain mandate of the statute; (3) he was deprived of his right to have a separate sample of his blood analyzed.
The defendant argues that the trooper failed to advise him "that he had the right to refuse to take such blood test; that he *281 had the right to request same within a two-hour period; that if practicable, he had the right to have a physician of his own choice administer the blood test; or that he would be entitled to know the results of the test." He testified that he was told by the trooper that "it was a new State law that you had to take" a blood test, and that he would not have taken the test had he not been informed by the trooper that he was required under the law to do so. Thus, he says, he cannot be deemed to have consented to submit to the test, or to have waived his right not to consent.
Under the statute any person who operates a motor vehicle upon a public highway in this Commonwealth shall be deemed to have consented to, and shall be entitled to, have a sample of his blood taken for a chemical analysis to determine its alcoholic content when arrested for operating a motor vehicle while under the influence of alcohol. In Walton City of Roanoke, 204 Va. 678, 133 S.E.2d 315, we said that "the defendant was not compelled under $18.1-55 to submit to the blood test. He had a choice of either allowing the test to be made or refusing it." We adhere to that holding. However, the statute does require an accused to submit to a blood test in order to avoid prosecution for refusing to take it, which may result in the suspension of his operator's license if such refusal is found to be unreasonable. He has the power to refuse to submit to the test but no right to refuse it. Since there exists no "right to refuse" to submit to a blood test, the trooper was without authority to advise defendant that he had such a right. Furthermore, defendant orally consented to submit to the test so that it was not incumbent upon the trooper to advise him of the consequences if he refused. Had defendant refused to submit to the test, it then would have been the duty of the trooper to advise the accused that "refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of this State".
There is no provision in the statute which expressly requires that the arresting officer advise the accused of his rights to request a test within a two-hour period; to have, if practicable, a physician of his own choice to extract his blood, or to know the results of the test. These provisions are available to an accused but are merely directory, not mandatory, insofar as they apply to the arresting officer. We conclude that the failure of the trooper to inform defendant of the provisions of the statute complained of did not constitute a lack of compliance.
It is next contended that the doctor failed to comply with the *282 mandate of the statute, because the record does not show that the instruments he used in extracting defendant's blood were sterilized and because he did not personally perform certain acts prescribed by the statute. Defendant makes no claim that the containers were not especially equipped with a sealing device and were not sealed so as to prevent tampering.
The statute requires the using of "some type of a cleanser or sterilizer for the instruments used and for the part of the body from which the blood is taken, other than alcohol or other substance which might in anyway affect the accuracy of the test," in extracting blood for analysis.
Dr. Andrews testified emphatically that he washed defendant's arm with "an antiseptic surgical soap", which contained no alcohol or other substance which might in any way affect the accuracy of the test. With respect to sterilization of the instruments used, he had this to say: "By Mr. Overton:"
* * *
"Q. When you withdrew the blood sample, just how did you do that?"
"A. The patient was seated in a chair, his arm was resting on our examining table, and a tourniquet, a stretchable rubber strip, was placed around his upper arm. This makes the veins stand out so I can better find the vein, and cause less pain. The accused's arm was then wiped off and washed off thoroughly with a surgical soap. The syringe was taken from its sterile container. It was a sterile needle. It was placed on the syringe -- the needle was -- then inserted into the vein, and twenty CC's of blood were withdrawn from the patient's vein."
* * *
"Q. Dr. Andrews, I ask you if you can say of your own knowledge the instruments you used were sterilized?"
"A. The instruments that I used were in a sterile container where sterile instruments are kept."
"Q. I ask you again, sir, can you say of your own knowledge that those instruments were sterilized?"
"A. I cannot say of my own knowledge they were sterilized. They were in a container where the sterilized instruments are kept."
* * * "By the Court: *283 "
"Q. Was the apparatus working you stuck it in?"
"A. They are sterilized in a steam-a large steam apparatus, under pressure. They are then taken out and placed with transfer forceps again in a sterile container, which contains several syringes and several needles and all."
"Q. Was the apparatus working, was it on this day?"
"A. Yes, sir."
"Q. And you put them in the apparatus provided for this?"
"A. They were in this container, in this sterile container, and I took them from the sterile container."
"Q. Did you have any reason to believe that they weren't all right?"
"A. No, sir. I did not."
* * * "By Mr. Carlton:"
* * *
"Q. What is the office routine?"
"A. The routine is that when a syringe has been used that it is placed in the cleaning solution in a separate container, a wet container. Mrs. Glanagan [nurse] takes this container, takes the syringes out, washes them in water, and places them in our pressure apparatus for sterilizing. It's called an autoclave."
"Q. What substance is used in cleaning and sterilizing those instruments previous to putting them in the sterile container?"
"A. Soap is used to clean them, and then they are cleaned further with water. They are washed several times with water, then they are placed in the steam apparatus and sterilized by live steam under pressure."
Mrs. Louis Flanagan, office nurse for Dr. Andrews, testified in part as follows: "By the Court:"
"Q. What do you do with the instruments he uses to draw blood from people's arteries?"
"A. When the syringes are used they are put in a solution, BD Syringe Cleaner -- solution. And when -- every morning I take those trays and wash them out with the BD Syringe Cleaner, and then I separate the syringes and wash them under running tap water, and then put them in a tray and in the autoclave, and autoclave them under twenty pounds of pressure for fifteen minutes. *284 "By Mr. Carlton:
"Q. What do you do with the tray?"
"A. The tray is covered and each office has one of these covered sterile trays."
"Q. Is that routine?"
"A. That is done every morning."
"Q. Every morning? "By the Court:
"Q. Did you do that on April 1st?"
"A. I do it every morning. "By Mr. Carlton:
"Q. Was it done on April 1st, 1963?"
"A. Yes, I did."
* * * "By the Court:"
"Q. When you talk about syringes, are those the syringes he uses to draw blood from the arms of these people accused of driving under the influence of liquor?"
"A. Yes, sir."
"Q. Were those particular syringes sterilized as you have indicated there, did you have that process to go through on April 1st?"
"A. Yes, sir."
* * * "By Mr. Overton:"
* * *
"Well, if that be true, and assuming Dr. Andrews did use a syringe and a needle to draw blood from that man's arm, you couldn't possibly testify that that syringe had been cleaned by you if you didn't see it done?"
"A. I can testify that all the syringes in the office are cleaned and sterilized by me."
"Q. Every morning?"
"A. Every morning."
In Kyhl Commonwealth, 205 Va. 240, 135 S.E.2d 768, we said that the statute does not require that the instruments used in extracting blood be sterilized in the presence of the accused. The statute clearly states that the instruments must cleansed or sterilized, but it does not specify by whom or when such must be done. We hold that there was sufficient evidence adduced for the jury to conclude *285 that the instruments used were properly sterilized before extracting defendant's blood.
The defendant argues that "The statute requires that the physician break open the containers [boxes], take out and open the vials sealed therein, withdraw the sample of blood and place it in the vials, close the vials and replace them in the containers, seal the containers and deliver one to the arresting officer and the other to the defendant." He points out that the trooper performed some of these acts. However, the evidence shows that they were done at the request of the doctor in his presence and in the presence of defendant.
The statute specifically requires that only a physician, registered professional nurse or graduate laboratory technician may extract the blood, and that after it has been placed in the vials, labelled and sealed, "One sample shall then be delivered by the person who withdrew it to the police officer * * * and the other sample shall be delivered to the person accused * * *." The statute does not specify that the person who extracts the blood must personally perform the other procedures mentioned. The evidence is uncontradicted that Dr. Andrews extracted defendant's blood. It is true that he did not actually hand the accused's sample to him. It was delivered to defendant by the trooper at the doctor's request and in his presence. That constituted a valid delivery by the doctor. We find that the doctor did not fail to comply with the statute on the grounds relied upon.
As has been stated defendant was given a sample of his blood. He was also given an instruction sheet containing the names and addresses of laboratories authorized to analyze his blood and stating, among other things, that the sample "should be taken or mailed-without delay". Upon his arrival at the jail he was incarcerated and his sample was taken from him without objection by the jailer for safekeeping. No one offered to take or mail the sample for him nor did he make the request of anyone. The sample and the instruction sheet were returned to defendant when he was released about 18 hours later. He was asked:
"Q. Did you ever send it to any of those laboratories?"
"A. No, sir. It said on those instructions that it had to be done immediately, right now, so seventeen or eighteen hours after I didn't figure it was worth sending in, so I throwed it away."
The instruction sheet did not state that the blood sample "must" be forwarded to a private laboratory "immediately". It stated: "To *286 insure the fullest possible protection of your rights, the container should be taken or mailed-without delay." If defendant had forwarded his blood sample after he was released it would have been "without delay." He made no inquiry or request and decided to throw away his sample. Under these circumstances it cannot be said that he was, through no fault of his own, deprived of his right to have his blood sample analyzed and the results thereof received in evidence. Thus, he was not entitled to have the prosecution dismissed under the provisions of the statute.
Finally, defendant contends that he was deprived of his right not to give evidence against himself in violation of | 8 of the Constitution of Virginia and the Fifth Amendment to the Constitution of the United States. In
Walton City of Roanoke, supra, we held that | 18.1-55 was not violative of these constitutional provisions. The defendant does not attack the constitutionality of the statute itself but he contends that it is unconstitutional as applied in the case at bar. He argues that his submission to the blood test was unlawfully obtained because he was told by the trooper that he was required to submit under the statute and was not advised that he had the right to refuse such a test. There has been no showing of coercion. By operating his motor vehicle upon a public highway defendant, under the statute, was deemed to have consented to take the blood test. When asked if he would like to take the test, he expressly consented. As was previously said defendant had the power to refuse the blood test but he had no right to refuse it. We find that this contention is without merit.
We hold that the trial court did not err in admitting in evidence the certificate attested by the Chief Medical Examiner, which showed defendant's blood contained 0.18% alcohol by weight, and in refusing to strike the Commonwealth's evidence and dismiss the prosecution.
For the reasons stated, the judgment appealed from is
Affirmed.
NOTES
[1] | 18.1-55. "Use of chemical test to determine alcohol in blood; procedure; costs; evidence; suspension of license for refusal to submit to test. -- * * * | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336269/ | 219 Ga. 51 (1963)
131 S.E.2d 547
WEBB
v.
HOUSING AUTHORITY OF THE CITY OF ATLANTA et al.
22031.
Supreme Court of Georgia.
Argued May 14, 1963.
Decided May 29, 1963.
Arnall, Golden & Gregory, Moreton Rolleston, Jr., for plaintiff in error.
Buchanan, Edenfield & Sizemore, Newell Edenfield, King & Spalding, John Izard, Charles Kirbo, R. Byron Attridge, contra.
CANDLER, Justice.
Allen G. Webb, alleging himself to be a citizen and taxpayer of the City of Atlanta, filed a petition in the Superior Court of Fulton County on November 29, 1962, in which he prayed for an injunction temporarily and permanently restraining and enjoining the Housing Authority of the City of Atlanta from accepting bids for and consummating a sale of certain realty which the City of Atlanta acquired under and pursuant to the provisions of the Urban Redevelopment Act of 1955 (Ga. L. 1955, p. 354). His petition alleges that the published notice for bids did not give prospective purchasers, including himself, sufficient bidding time. On presentation of his verified petition, it was ordered filed, a restraining order was granted, and the case was set down for an interlocutory hearing at a specified place on a fixed date. On that hearing, and after the parties had introduced their evidence, the court dissolved the restraining order previously granted and denied the application for a temporary injunction. The plaintiff excepted but no supersedeas was applied for or granted. When the case was orally argued in this court, counsel for defendants in error stated that a bid which Marriott Motor Hotels of Atlanta, Inc. made for the subject property pursuant to the published notice for sealed bids had been accepted since the restraining order was dissolved and after *52 petitioner's application for a temporary injunction was denied; that the property had been conveyed to the bidder, and the amount of its bid had been paid. As to that statement, there was no denial. Since the case was orally argued, a motion has been filed in this court to dismiss the writ of error on the ground that the question thereby presented for decision is moot. The motion has an affidavit attached to it as an exhibit which shows that the bid Marriott Motor Hotels of Atlanta, Inc. made for the property in question has been accepted; that the amount it bid for the property has been paid; that the property has been conveyed by warranty deed to the purchaser; and that such deed has been recorded in the office of the Clerk of the Superior Court of Fulton County in deed record book 4056 at page 156. There is no denial of the facts alleged in the motion to dismiss. Held:
This court does not pass on moot questions. Abernathy v. Dorsey, 189 Ga. 72 (5 SE2d 39); Jones v. Jones, 207 Ga. 698 (63 SE2d 895); Kight v. Gilliard, 215 Ga. 152 (109 SE2d 599). Since the motion to dismiss the writ of error shows without dispute that the sale which the plaintiff sought to enjoin was made and fully closed after the court refused to temporarily enjoin it, the question which the writ of error presents for decision is moot; and being so, it will not be decided.
Writ of error dismissed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263424/ | 24 Cal.App.4th 1468 (1994)
30 Cal. Rptr.2d 466
In re REYES P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
REYES P., Defendant and Appellant.
Docket No. E012059.
Court of Appeals of California, Fourth District, Division Two.
May 10, 1994.
*1469 COUNSEL
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley, and Holley A. Hoffman, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
McKINSTER, J.
Following a contested jurisdiction hearing, the trial court found true the only allegation in a subsequent petition under Welfare and Institutions Code section 602 that defendant possessed a firearm while on probation and in violation of an express probation condition prohibiting such activity (Pen. Code, § 12021, subd. (d)). Thereafter, and at the conclusion of a contested dispositional hearing, the trial court ordered defendant committed at the California Youth Authority for a maximum term of six years four years maximum on a 1991 car theft (Veh. Code, § 10851), one year maximum for a 1990 violation of Penal Code section 496.1 (receiving stolen property) and one year on the current offense of possessing a firearm in violation of Penal Code section 12021, subdivision (d).
DISCUSSION
1.
Application of Penal Code Section 12021, Subdivision (d) to Juvenile Offenders
(1) Defendant's first contention in this appeal is that Penal Code section 12021, subdivision (d) applies only to adult probationers and, therefore, the trial court erred in denying defendant's motion to dismiss the subsequent petition which alleged only a violation of that purportedly inapplicable code section. The trial court denied defendant's motion based on what defendant contends was an erroneous interpretation of the statute in question. Specifically, defendant contends, as he did in the trial court, that the Legislature did not intend subdivision (d) of Penal Code section 12021 to apply to juvenile offenders as evidenced by the fact that subdivisions (b) and (e) of that code section specifically refer to, and, therefore, specifically include juveniles. According to defendant, the specific reference to juvenile offenders in the *1470 two noted subdivisions of Penal Code section 12021 reflects the Legislature's intent to exclude juveniles from the remaining subdivisions. We disagree.
Defendant's claim depends, first, on the language of Penal Code section 12021. In raising his claim, defendant acknowledges the established rule that, "If the language [of a statute] is clear and unambiguous, there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature...." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d 299].) At the time relevant to this appeal Penal Code section 12021[1] provided, in pertinent part, as follows:
"(a) Any person who has been convicted of a felony ... or of an offense enumerated in Section 12001.6, or who is addicted to the use of any narcotic drug who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.
"(b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 12001.6, when that conviction results from certification by the juvenile court for prosecution as an adult in adult court under Section 707 of the Welfare and Institutions Code, who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.
"(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of [specified Penal Code sections] and who, within 10 years of the conviction, owns, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable [either as a felony or misdemeanor]. The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision....
"(2) .... .... .... .... .... .... .... ....
"(d) Any person who, as an express condition of probation, is prohibited or restricted from owning, possessing, controlling, receiving, or purchasing a firearm and who owns, or has in his or her possession or under his or her custody or control, any firearm but who is not subject to subdivision (a) or (c) is guilty of a public offense, which shall be punishable [either as a felony or misdemeanor]. The court, on forms provided by the Department of *1471 Justice, shall notify the department of persons subject to this subdivision. The notice shall include a copy of the order of probation and a copy of any minute order or abstract reflecting the order and conditions of probation.
"(e) Any person who (1) is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, (2) is found to be a fit and proper subject to be dealt with under the juvenile court law, and (3) is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years. A violation of this subdivision shall be punishable [either as a felony or misdemeanor]. The juvenile court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision. Notwithstanding any other law, the forms required to be submitted to the department pursuant to this subdivision may be used to determine eligibility to acquire a firearm."
In our view, the language of section 12021 is clear and unambiguous and, therefore, does not require interpretation.[2] As set out above, the various subdivisions of section 12021 pertain to different types of offenders. To identify those offenders, the Legislature used the phrase "any person" followed by a modifying phrase. With the exception of subdivision (d), the modifying phrases recounted above have the effect of distinguishing between adult and juvenile offenders, as a result of which subdivisions (a) and (c), by their express terms, apply only to adult offenders while subdivisions (b) and (e) are applicable only to juvenile offenders.[3]
In contrast, subdivision (d), as recounted above, pertains to "[a]ny person who, as an express condition of probation, is prohibited or restricted from owning, possessing, controlling, receiving, or purchasing a firearm ... but *1472 who is not subject to subdivisions (a) or (c) ...." The emphasized modifying language does not distinguish between juvenile and adult offenders but, instead, identifies offenders who are also subject to subdivisions (a) or (c) and, therefore, should be charged under those subdivisions. In short, according to its plain language, subdivision (d) applies to "any person," adult or juvenile, on probation, except a person who also is prohibited from possessing, et cetera, a firearm under subdivision (a) or (c). Because we conclude subdivision (d) applies to a juvenile offender on probation, we must reject defendant's claim that the trial court erred in denying defendant's motion to dismiss the subsequent petition.
2., 3.[*]
.... .... .... .... .... .... .... .
DISPOSITION
The judgment is affirmed.
Ramirez, P.J., and Hollenhorst, J., concurred.
A petition for a rehearing was denied June 3, 1994, and appellant's petition for review by the Supreme Court was denied August 11, 1994.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 2 and 3.
[1] Unless otherwise indicated, all further statutory references are to Penal Code section 12021.
[2] Based on our initial review both of the statute and the parties' respective briefs on this issue, we requested further briefing by the Attorney General and specifically requested the Attorney General provide this court and defendant with the legislative history of section 12021, subdivision (d). After the Attorney General complied with our request, and after defendant replied to the Attorney General's additional briefing, we recognized, as noted, the statute is clear and unambiguous and, therefore, does not require interpretation.
[3] Defendant asserts, as previously noted, that because the Legislature specifically limited subdivisions (b) and (e) to juvenile offenders, the Legislature necessarily intended to exclude juveniles from all other subdivisions, including subdivision (d). Defendant's assertion arguably would be persuasive were it not for the fact that the Legislature, as noted above, also specifically limited subdivisions (a) and (c) to adult offenders. Consequently, by parity of defendant's reasoning we could conclude the Legislature did not intend subdivision (d) to apply to adult offenders.
[*] See footnote, ante, page 1468. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263436/ | 24 Cal.App.4th 1044 (1994)
30 Cal. Rptr.2d 109
THE PEOPLE, Plaintiff and Respondent,
v.
MARK BATT, Defendant and Appellant.
Docket No. F018821.
Court of Appeals of California, Fifth District.
April 29, 1994.
*1045 COUNSEL
Joseph Morehead, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
*1046 OPINION
FRANSON, J.[*]
Pursuant to a plea bargain, defendant pleaded no contest to two counts of residential burglary on the condition two remaining charges would be dismissed and the prosecution would not oppose a commitment to the California Rehabilitation Center (CRC). Following denial of his motion to withdraw his plea, he was sentenced to an aggregate prison term exceeding six years, thereby rendering him ineligible for a CRC commitment.
We reject defendant's primary contention he should have been permitted to withdraw his plea on the ground he was misinformed by the court and counsel about the likelihood of a CRC commitment. In the published portion of this opinion, we also reject his contention Penal Code[1] section 859a requires the same judge who took the plea, as opposed to the same court, to hear a motion to withdraw the plea. And we hold defendant waived objection to imposition of a restitution fine by failing to raise the issue at or before sentencing. However, we agree with his final contention he was entitled to an additional three days of presentence custody credits. Accordingly, we affirm the judgment in all respects save the matter of custody credits.
FACTUAL AND PROCEDURAL HISTORY[]
.... .... .... .... .... .... .... .
DISCUSSION
1., 2.[]
.... .... .... .... .... .... .... .
3. Section 859a Motion to withdraw the plea heard and determined by a different judge than the one who accepted the plea.
Defendant's change of plea was taken in municipal court on August 7, 1992, by Judge Scott, a visiting judge who apparently was no longer assigned to that court on October 30 when defendant's motion to withdraw his plea was set to be heard. The motion was heard instead by Judge Castellucci. At the outset of the hearing, defendant, citing section 859a, argued his motion must be heard by Judge Scott. However, Judge Castellucci *1047 concluded the statute requires only that the motion be heard by the same court and not necessarily by the same judge who took the plea.
Section 859a generally provides that a defendant who has entered a plea of not guilty before a magistrate[7] may thereafter change his plea to guilty or nolo contendere. In that event, the magistrate must certify the case to the superior court where such proceedings "shall be had as if the defendant had pleaded guilty in that court." The section then goes on to provide in part: "If the defendant subsequently files a written motion to withdraw the plea under Section 1018, the motion shall be heard and determined by the court before which the plea was entered." (Italics added.) (1a) Defendant asserts on appeal, as he did below, this language requires a motion to withdraw a plea to be heard by the same judge who took the plea. Therefore, he argues, the matter must be remanded so Judge Scott can hear the motion.
Defendant relies entirely on dictum by this court in People v. Mesa (1985) 174 Cal. App.3d 58 [219 Cal. Rptr. 720]. The defendant in Mesa, pursuant to a plea bargain, pleaded guilty before a magistrate, and the matter was certified to the superior court. Prior to sentencing, the defendant orally moved to withdraw his plea. The court, however, found there was no good cause for withdrawal and declined to remand the matter to the lower court. The defendant, citing section 859a, contended on appeal the court had exceeded its jurisdiction by failing to remand the case. (174 Cal. App.3d at pp. 59-60.) In affirming the judgment, we stated:
"The legislative history[[8]] of this statutory requirement demonstrates that the legislative purpose of the provision is to require the motion to withdraw a plea to be heard by the judge who accepted the plea and is therefore most familiar with the circumstances. However, by the clear and unequivocal wording of the statute, the obligation to refer the motion to withdraw to the judge who accepted the plea is conditioned upon written motion. (`If the defendant subsequently files a written motion to withdraw the plea....')
"Assuming arguendo there may be some circumstances under which a court would be justified in acting on an oral motion to withdraw a plea, nothing in the facts of this case favors such a course. Most importantly, the record demonstrates that defendant was not prejudiced by the superior *1048 court's failure to refer the defendant's motion to the municipal court." (174 Cal. App.3d at p. 60.)
Thus, our decision in Mesa was based on the defendant's failure to file a written motion to withdraw his plea, not on a resolution of the question presented here.
Section 859a refers to the "magistrate" who takes a defendant's guilty or nolo contendere plea, but requires only that a subsequent motion to withdraw the plea must be heard by the same "court." Clearly, if the Legislature had intended to require the same magistrate to hear the motion, it easily could have said so. (Compare, e.g., section 661 of the Code of Civil Procedure [a motion for new trial shall be heard by the judge who presided at the trial unless he or she is absent or unable to act] with section 663 of the same code [a judgment may be vacated by the same court in which the trial was held].) Although it may be desirable in most cases for the same magistrate to hear the motion, nothing in the language of section 859a requires that result.
(2) In holding that a judge may not retain jurisdiction in himself or herself during the period of a defendant's probation, the Supreme Court has stated: "An individual judge (as distinguished from a court) is not empowered to retain jurisdiction of a cause. The cause is before the court, not the individual judge of that court, and the jurisdiction which the judge exercises is the jurisdiction of the court, not of the judge. Rules of court which provide that posttrial proceedings in a cause shall be heard by the judge who tried the matter are entirely proper, but the individual judge cannot order that such proceedings must be heard by him." (People v. Osslo (1958) 50 Cal.2d 75, 104 [323 P.2d 397]; see also 2 Witkin, Cal. Procedure (3d ed. 1985) § 50, Courts, p. 65.) (1b) This rule applies equally well to the present situation absent clear statutory language requiring a particular judge to hear defendant's motion to withdraw his plea.
In addition, a construction of section 859a which requires the same magistrate who took the change of plea to hear the motion to withdraw it would obstruct the efficient operation of the courts where, as evidently was the case here, the magistrate is not available to hear the motion.
In determining legislative intent, the court must look first to the words of the statute themselves; when the language is clear and unambiguous, statutory construction is unnecessary. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007 [239 Cal. Rptr. 656, 741 P.2d 154].) Nothing in the language of section 859a suggests the Legislature intended "the court" to be given the narrow construction urged by defendant. Section 859a should be interpreted *1049 to mean no more than what it plainly says: a motion to withdraw a guilty or nolo contendere plea shall be heard and determined by the court before which the plea was entered. This requirement was satisfied here.
4., 5.[*]
.... .... .... .... .... .... .... .
DISPOSITION
The cause is remanded to the superior court with instructions to modify the abstract of judgment to reflect that appellant is entitled to an additional three days of presentence custody credits. In all other respects, the judgment is affirmed.
Martin, Acting P.J., and Buckley, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 20, 1994.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of the Factual and Procedural History, and parts 1, 2, 4 and 5.
[*] Retired Presiding Justice of the Court of Appeal, Fifth District, sitting under assignment by the Chairperson of the Judicial Council.
[1] All future statutory references are to the Penal Code unless otherwise indicated.
[] See footnote, ante, page 1044.
[7] Section 859, which immediately precedes section 859a, provides in part: "When the defendant is charged with the commission of a public offense over which the superior court has original jurisdiction, by a written complaint subscribed under oath and on file in a court within the county in which the public offense is triable, he or she shall, without unnecessary delay, be taken before a magistrate of the court in which the complaint is on file."
[8] The legislative history the court has received in the present case sheds no light on the issue.
[*] See footnote, ante, page 1044. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263440/ | 24 Cal.App.4th 1695 (1994)
30 Cal. Rptr.2d 214
ROBERT R. DAVENPORT, Plaintiff and Appellant,
v.
UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent.
Docket No. B069264.
Court of Appeals of California, Second District, Division Four.
May 18, 1994.
*1696 COUNSEL
Robert R. Davenport, in pro. per., for Plaintiff and Appellant.
Daniel E. Lungren, Attorney General, Charlton G. Holland III, Assistant Attorney General, John H. Sanders and Jill P. Armour, Deputy Attorneys General, for Defendant and Respondent.
OPINION
VOGEL (C.S.), J.
Plaintiff and appellant Robert R. Davenport appeals from the judgment denying his petition for a writ of administrative mandamus (Code Civ. Proc., 1094.5) to review the decision of defendant and respondent California Unemployment Insurance Appeals Board (CUIAB or Board) which denied Davenport unemployment insurance compensation.
*1697 Davenport was a student at the University of Southern California. He was employed by the university as a student worker, a job position open only to students. After losing this job, he was denied unemployment compensation on the ground that this job was exempted from covered employment by Unemployment Insurance Code section 642. That section provides in pertinent part: "`Employment' does not include service performed in the employ of a school, college, or university, if such service is performed: [¶] (a) By a student who is enrolled and is regularly attending classes at such school, college, or university...."
A regulation of the Director of Employment Development interprets this statute and provides in pertinent part: "An employee who performs service for the school, college, or university as an incident to, and for the purpose of pursuing a course of study at such school, college, or university has the status of a student for the purpose of this section. If the course of study is incidental to the employment, the exemption shall not apply." (Cal. Code Regs., tit. 22, 642(a)-1, subd. (c).)
The theory of Davenport's case is that because his course of study was in the cinema department and his job was in the business school, his job was not exempt, because it did not directly further his course of study. His argument was rejected by the administrative law judge (or ALJ), the Board, and the trial court.
Davenport contends the administrative law judge and the Board misinterpreted the regulation as applied to undisputed facts of his case. The interpretation of the regulation and its application to undisputed facts are questions of law for this court's independent review. (David Kikkert & Associates, Inc. v. Shine (1970) 6 Cal. App.3d 112, 116 [86 Cal. Rptr. 161].) Because we agree with the previous rulings, we affirm the judgment.
FACTS
Davenport was a full-time student in graduate studies. His studies were in the School of Cinema-Television. His job was in the School of Business Administration.[1] Davenport's job category was student worker. This position was available only to students. It was a "nonbenefits" position because the university did not provide a funding pool for unemployment benefits for this position. Davenport was informed when he took the position that it was not eligible for benefits. Although Davenport's position was described as "faculty assistant" by the School of Business Administration, it contrasted with *1698 graduate assistant teaching positions, which involved a substantial tuition remission. Davenport was not given or offered a graduate teaching position or tuition remission.
The purpose of the student worker position was to assist students financially to enable them to attend school. The university was not always able to provide a job position in the same school or department the student was attending. There was a common university payroll, rather than a separate financial structure for each college.
Davenport testified at the administrative hearing that he was qualified for the job by his past education, was performing it in order to earn money, and that the job had absolutely nothing to do with his education in cinema studies. The administrative law judge commented "there's no controversy that you were not in the same school where you were working."
ALJ DECISION
The decision of the administrative law judge states in pertinent part, "[Davenport] was primarily a student at the university. While a student, he applied for a job that is available only to students. Even though his work was performed in a different college than the one he was attending, both are part of the same university system and the same payroll system. His eligibility for the job was premised on his being a student at the university." Therefore, the administrative law judge held, Davenport's employment was in an exempt position not eligible for benefits.
CUIAB DECISION
Respondent Board affirmed the decision of the administrative law judge. Respondent's decision stated, in pertinent part, "The claimant's appeal stresses the difference between being enrolled in one college while teaching in a different one in the same university. We believe such a differentiation is not recognized in the statute or in the implementing regulation. The last sentence in subsection (a) of section 642, title 22, California Code of Regulations, clearly indicates that the words `school, college, or university' are merely descriptive of the institution by whom the employee is employed and not descriptive of various subentities within the school, college or university."[2]
*1699 TRIAL COURT DECISION
The trial court's minute order denying Davenport's petition for a writ of administrative mandamus states, "Matter is called for trial. Petition is denied as it was not well founded."
DISCUSSION
(1) Davenport contends "[t]he California Unemployment Insurance Appeals Board has violated their regulations." Davenport points out that, when subdivisions (a) and (c) of the regulation are read together,[3] it is theoretically possible for a person to be both a student and an employee at the same university, with the studies merely incidental to the employment.
Davenport erroneously applies this theoretical possibility to his own case, however. Here, as pointed out by the administrative law judge, the undisputed evidence showed that Davenport was employed in a position available only to students regularly enrolled in the university, the purpose of which was to provide financial assistance to students to enable them to pursue their studies. In these circumstances, the job, regardless of its character or place performed, was incidental to the studies, not the other way around.[4]
Moreover, to construe the regulation, as Davenport advocates, to mean that in order to be exempt from covered employment the job must have educational content which is directly related to the student's particular course of study, would impermissibly allow the Director of Employment Development by regulation to modify, alter, or enlarge Unemployment Code *1700 section 642, which by its plain language contains no exception. (See Nadler v. California Veterans Board (1984) 152 Cal. App.3d 707, 718 [199 Cal. Rptr. 546].)
OTHER ISSUES
Davenport also raises several procedural issues which lack merit.
Davenport inexplicably contends that he was not afforded a hearing on his petition for writ of administrative mandamus. The record shows to the contrary. The joint appendix on appeal contains the trial court's minute order for April 14, 1992, which shows that Davenport was present in propria persona and that "Matter is called for trial. Petition is denied as it was not well founded."
Davenport contends that he was denied a record of the hearing. Again, the record shows to the contrary. The minute order for the hearing shows the presence of an electronic recording monitor, T. Blaylock. Davenport could have obtained a transcript on appeal. (Code Civ. Proc., § 270, subds. (d), (e).) The burden is on the appellant to produce an adequate record on appeal affirmatively demonstrating error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [224 Cal. Rptr. 664, 715 P.2d 624].) Davenport has failed to sustain his burden to produce the record.
(2) Davenport contends that the trial court erroneously denied him a statement of decision. This contention lacks merit because Davenport fails to show that he was entitled to a statement of decision. Code of Civil Procedure section 632 requires a statement of decision, if timely requested, "upon the trial of a question of fact by the court." Here, Davenport contended that the transcript of the administrative record showed that respondent Board erred as a matter of law in its application of the regulation to the facts of Davenport's case. The court found the petition "not well founded." The petition was denied on a question of law, not a trial of disputed facts, therefore a statement of decision was not required. (Enterprise Ins. Co. v. Mulleague (1987) 196 Cal. App.3d 528, 538-539 [241 Cal. Rptr. 846].) To put it another way, because we independently review the question of law, the absence of a statement of decision is not prejudicial to Davenport. (Palm v. Schilling (1988) 199 Cal. App.3d 63, 67 [244 Cal. Rptr. 600]; City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal. App.3d 1277, 1291-1292 [258 Cal. Rptr. 795].)
*1701 DISPOSITION
The judgment is affirmed.
Woods (A.M.), P.J., and Klein (Brett), J.,[*] concurred.
NOTES
[1] Davenport already had a master of business administration degree. At the time of the administrative hearing, he was also a member of the State Bar of California.
[2] Respondent was referring to California Code of Regulations, title 22, section 642(a)-1, subdivision (a), which provides, "For purposes of Section 642 of the code, `school, college, or university' shall be taken in the commonly or generally accepted sense. The amount of remuneration for the service, the type of [sic] character or [sic] the service, and the place where service is performed are immaterial, except as provided in subdivision (c) of this section. The statutory tests under Section 642 of the code are whether the organization is a school, college, or university and whether the employee is a student who is enrolled and is regularly attending classes at the institution employing him."
[3] "(a) ... The amount of remuneration for the service, the type of [sic] character or [sic] the service, and the place where service is performed are immaterial, except as provided in subdivision (c) of this section. [¶] ... [¶] (c) ... If the course of study is incidental to the employment, the exemption shall not apply." (Cal. Code Regs., tit. 22, § 642(a)-1.)
[4] We agree with Davenport that an example given in the CUIAB's decision, of a student at University of California at Los Angeles working at University of Southern California, was inapt. At the administrative hearing, however, the university's representative, Ms. Croy, gave a better example of a case which would more nearly fit the rule posed by Davenport: suppose "he goes over to the other side of campus to somebody who doesn't have any idea that he's a student on campus ... and says, I'm applying for a part time position here ... and they give him a regular position for anyone who walks off the street with qualifications to do it and is hired as a regular employee with benefits and FICA and everything else."
[*] Judge of the Municipal Court for the Los Angeles Judicial District sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263443/ | 24 Cal.App.4th 1740 (1994)
30 Cal. Rptr.2d 233
In re the Marriage of BARBARA JEAN and JOEL FRANCIS TAMRAZ.
BARBARA JEAN TAMRAZ, Respondent,
v.
JOEL FRANCIS TAMRAZ, Appellant.
Docket Nos. B070292, B072405.
Court of Appeals of California, Second District, Division Seven.
May 19, 1994.
*1743 COUNSEL
Joel Francis Tamraz, in pro per., for Appellant.
Marian L. Stanton, Lascher & Lascher, Wendy C. Lascher and Gabriele Mezger-Lashly for Respondent.
[Opinion certified for partial publication.[*]]
OPINION
JOHNSON, J.
In consolidated actions for dissolution of marriage the trial court awarded judgment to wife based on a marital settlement agreement and ordered the judgment effective nunc pro tunc. In a subsequent order, the trial court awarded attorney fees to wife. We affirm.
FACTS AND PROCEEDINGS BELOW
We will refer to appellant, Joel Tamraz, as "husband" and respondent, Barbara Tamraz, as "wife."
In September 1976, husband filed an action for dissolution of marriage. In October of that year husband and wife entered into a marital settlement *1744 agreement "to effect a complete and final settlement of all matters with reference to the rights of each party...." Among other things, the agreement provided for the distribution of community assets, payment of child support, and attorney fees in the event of an action or proceeding to enforce the agreement.
With respect to wife's community property share in husband's law practice, the parties agreed there were outstanding preseparation accounts receivable for legal work performed by husband. They agreed that as those bills were collected husband would pay a designated percentage to wife and husband will periodically account to wife for the amounts collected. Husband never paid wife any sums under this provision of the agreement and never gave her an accounting.
As to child support, the agreement recited the parties have two children: Susan born December 1967, and Joel born October 1971. The parties agreed husband would pay to wife $200 per month per child commencing on November 15, 1976; that such amount is reasonable and sufficient for the needs of the children and based on husband's financial ability. The agreement provided child support obligations would terminate as to each child upon the child reaching the age of majority or upon other events not relevant here.
The agreement also covered certain procedural matters concerning the pending dissolution action. The parties agreed that upon the execution of the agreement they would stipulate to the entry of a default against wife in the pending action which then would proceed as a default matter. Husband was to handle the appearance at the hearing on the matter and prepare the interlocutory judgment. Husband was to submit the stipulation for default and the judgment to wife's attorney for his approval.
Under "General Provisions" the agreement provided:
"A. This Agreement shall be effective immediately as of the day and year first above written [October 30, 1976]. It shall survive a reconciliation by the parties unless otherwise agreed in writing.
"B. If an interlocutory judgment of dissolution of marriage is obtained by either party, the original of this Agreement shall be introduced into evidence in said action, and the executory provisions of this Agreement shall be included in a stipulated or proposed judgment, which shall state that the Agreement is made a part thereof, and is incorporated as a part of the judgment for the purpose of being an operative part of said judgment. The parties agree that the Court shall be requested to approve the Agreement as fair and equitable and to make specific orders requiring each party to do all of the things provided for in this Agreement that at the time have not been fully performed."
*1745 (1) (see fn. 1) It is undisputed husband never prepared a stipulation for default or interlocutory judgment in the 1976 dissolution action.[1]
In 1977 the parties attempted a reconciliation and signed a reconciliation agreement under which their earnings would remain their separate property, they would equally share the expenses to maintain their residence and they would set up a joint checking account to pay joint expenses incurred in supporting their two children and maintaining their residence. The parties dispute whether a reconciliation ever occurred.
Wife's declaration states husband continued to maintain a separate residence and the joint checking account was never established. In any event, the marital settlement agreement specifies, "It shall survive a reconciliation by the parties unless otherwise agreed in writing." The reconciliation agreement contains no such agreement.
In 1989 wife filed a dissolution action and moved the court to enter a judgment nunc pro tunc in the 1976 action incorporating the parties' marital settlement agreement or, in the alternative, to enter a judgment on the agreement in the present action. Husband opposed the entry of judgment on the marital settlement agreement in either action. Following wife's motion for entry of judgment nunc pro tunc in the 1976 action, husband requested and the clerk of court entered a dismissal of that action.
By stipulation the matter was referred to retired Commissioner Robert L. Brock as a temporary judge for decision under Code of Civil Procedure section 638. Commissioner Brock ordered the 1976 and 1989 dissolution actions consolidated, granted the motion to enter judgment in the 1976 action nunc pro tunc as of November 1, 1976[2] and found husband to be in arrears in child support from June 1984 through October 1989 in the sum of $17,420.70. The trial court entered a further order which essentially incorporated the marital settlement agreement as the court's judgment in the consolidated cases. Subsequently, the trial court granted wife's motion for attorney fees.
*1746 Husband appeals, contending the court erred in awarding judgment nunc pro tunc in the 1976 action on the ground, among others, he had unilaterally dismissed that action under Code of Civil Procedure section 581 prior to the court's entry of judgment. Husband also contends the trial court abused its discretion as to the amount of attorney fees awarded wife.
I. The Trial Court Properly Ordered Entry of Judgment on the Marital Settlement Agreement Nunc Pro Tunc.
(2) After reading the parties' declarations and points and authorities and hearing oral argument, Commissioner Brock concluded, "Based on wife's reliance on husband to have the Marital Settlement Agreement entered as a judgment and husband's fiduciary obligations both as spouse and attorney it is fair and equitable that the Marital Settlement Agreement be entered nunc pro tunc providing that the child support commence retroactive to November 1, 1976." Substantial evidence supports these findings.[3]
The settlement agreement provided, "[u]pon the execution of this Agreement, the parties shall stipulate to the entry of a default against Wife...." It also provided husband would prepare the necessary papers and submit them to wife's attorney for approval. Although the agreement did not set a time limit for husband to perform these acts, a reasonable time is inferred. Wife was obviously aware husband had not prepared the stipulation and judgment. However, the evidence shows wife relied upon husband's representations the settlement agreement was fully enforceable and entry of judgment was a mere formality. Husband told wife she could "trust him" and he "would never try to cheat [her]." Wife testified she relied on the above representations. Furthermore, the evidence shows husband took advantage of the settlement provisions favorable to him by taking out a loan on the family residence, selling stock and claiming one of the children as a dependent on his income tax returns. Finally, the evidence showed in 1988 husband did prepare a judgment in the 1976 action and presented it to wife. This judgment, however, did not cover child support for Susan or back support for both children and made no reference to wife's interest in the accounts receivable from husband's law practice. Wife refused to approve it. Therefore, husband's attempt to dismiss the 1976 action was ineffective under Code of Civil Procedure section 581, former subdivision (h) (now subdivision (i)).
(3a) At the time husband requested dismissal, Code of Civil Procedure section 581, former subdivision (h) provided in relevant part, "No dismissal *1747 of an action may be made or entered ... where affirmative relief has been sought by the cross-complaint of a defendant...." Although we have found no case holding this exception applicable in a dissolution proceeding, we find persuasive dictum to this effect in In re Marriage of Dover (1971) 15 Cal. App.3d 675 [93 Cal. Rptr. 384].
In Dover, the court recognized there is no such thing as a cross-complaint in a dissolution proceeding but "[t]he controlling factor in determining whether a plaintiff has the right to dismiss under this section has been held to be whether the other party has requested affirmative relief, regardless of the form of the pleading. (Guardianship of Lyle, 77 Cal. App.2d 153, 154-155 [174 P.2d 906].)" (15 Cal. App.3d at p. 679, fn. 4, italics by the court.) In the case of a response to a petition for dissolution of marriage, the court reasoned, if the response seeks affirmative relief, it must be treated as a cross-complaint of the defendant within the meaning of Code of Civil Procedure section 581. California Rules of Court, rule 1206 specifies provisions of law apply regardless of nomenclature if they would otherwise apply under the Family Law rules. Therefore, where a response seeking affirmative relief has been filed, "the `plaintiff' (petitioner) would have no right, merely because of the difference in nomenclature, to request a dismissal thereafter without the consent of the respondent." (15 Cal. App.3d at p. 679.)
History shows that as pleading rules have changed, so has the nomenclature of Code of Civil Procedure section 581. Prior to 1971 the statute prohibited the plaintiff from voluntarily dismissing an action if a counterclaim had been filed "or affirmative relief sought by the cross-complaint or answer of the defendant." In 1971, the Code of Civil Procedure was amended to abolish counterclaims and claims for affirmative relief in the answer. A corresponding amendment was made to Code of Civil Procedure section 581 eliminating references to counterclaims and affirmative relief in the answer. (Review of Selected 1971 Legislation (1972) 3 Pacific L.J. 258-259.) This left cross-complaints but, we note, not just any cross-complaint only cross-complaints "where affirmative relief has been sought." Thus the sine qua non of preventing voluntary dismissal has remained the opposing party's claim for affirmative relief regardless of the form that claim may take.
(4) Affirmative relief for purposes of Code of Civil Procedure section 581 is "the allegation of new matter which in effect amounts to a counter-attack." (Wilson v. L.A. County Civil Service Com. (1954) 126 Cal. App.2d 679, 682 [273 P.2d 34].) "[I]n order to curtail the plaintiff's privilege of dismissing his action voluntarily, the defendant must clearly and specifically bring himself within the terms of the statute, i.e., by plainly requesting affirmative relief." (In re Mercantile Guaranty Co. (1968) 263 Cal. App.2d 346, 352 [69 Cal. Rptr. 361].)
*1748 (3b) In the present case, the record does not show wife filed a responsive pleading to husband's petition in the 1976 dissolution action. She did, however, respond by filing a motion for entry of judgment based on the marital settlement agreement. This motion plainly requested affirmative relief different from what husband was seeking as evidenced by the proposed judgment in that action he prepared and submitted to her in 1988. Therefore, we conclude, husband could not unilaterally dismiss the 1976 dissolution action and such action was still pending at the time of Commissioner Brock's orders.
(5) Husband next argues Commissioner Brock's order violated Civil Code former section 4513[4] which prohibited entry of a judgment nunc pro tunc if it appeared an appeal would be taken in the action and prohibited a judgment to be nunc pro tunc as of a date prior to trial in the matter, prior to the date of an uncontested judgment hearing or prior to the date of submission of an application for judgment on affidavit. Husband contends it was clear he would file an appeal if judgment was granted nunc pro tunc and it is undisputed there never was a trial, hearing on uncontested judgment or application for judgment on affidavit in the 1976 action.
As to evidence an appeal would be taken in the action, we have reviewed husband's citations to the record and find they merely contain his assertions it would be error to enter a judgment nunc pro tunc. The trial court need not have inferred from this argument an appeal would be filed by husband. Furthermore, the judgment was based on the 1976 marital settlement agreement. Obviously, there would have been no point in stipulating to have judgment entered on this agreement if husband intended to appeal the judgment.
It is true there never was a trial, hearing on uncontested judgment or application for judgment on affidavit in the 1976 action. However, the trial court found the reason none of these events occurred was because husband failed to follow through on his obligations under the settlement agreement. The purpose of a judgment nunc pro tunc "is to avoid injustice to a person whose rights are threatened by a delay which is not his fault." (Hurst v. Hurst (1964) 227 Cal. App.2d 859, 868 [39 Cal. Rptr. 162, 19 A.L.R.3d 635].) Civil Code section 4513 "is to be liberally construed to effectuate its object." (Adoption of Graham (1962) 58 Cal.2d 899, 904 [27 Cal. Rptr. 163, 377 P.2d 275].) Under the facts of this case, it was husband's fault alone no application for judgment was made and no default judgment taken against wife as contemplated in the settlement agreement. Husband should not be allowed to take advantage of his own wrong in order to avoid obligations he clearly undertook in the settlement agreement.
*1749 (6) Finally, there is no merit to husband's contention Commissioner Block lacked authority to enter judgment in the 1976 action because the stipulation for reference only applied to the action filed by wife in 1989. The stipulation provided Commissioner Brock "shall have complete jurisdiction over this action for all purposes, except as provided herein" and "[a]ny ruling, decision or judgment made in this matter shall be made with the same force and effect, as well as all procedural rights, as if the matter had been determined by a judge of the Superior Court of the County of Los Angeles." Commissioner Brock acquired jurisdiction over the 1976 action by ordering it consolidated with the 1989 action. A judge of the superior court would have had authority to order the 1976 and 1989 actions consolidated (Code Civ. Proc. § 1048, subd. (a)), and nothing in the stipulation specifically prohibited Commissioner Brock from doing so.[5]
For the reasons set forth above, we conclude the trial court properly entered judgment nunc pro tunc in the 1976 dissolution action.[6]
II. The Trial Court Properly Awarded Attorney Fees to Wife and Wife Is Entitled to Attorney Fees on Appeal.[*]
.... .... .... .... .... .... .... .
DISPOSITION
The orders and judgment are affirmed. The trial court shall award wife reasonable attorney fees on this appeal.
Lillie, P.J., and Woods (Fred), J., concurred.
A petition for a rehearing was denied June 14, 1994, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied July 27, 1994.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication. The portions directed to be published are: the Introduction, Facts and Proceedings, part I and the Disposition.
[1] On petition for rehearing husband contends, "Under the settlement agreement husband had no obligation to prepare a stipulation for default, and any reference to such a fact in the decision is false." Paragraph 6 of the settlement agreement provides, in relevant part, "[I]t is agreed that upon execution of this Agreement, the parties shall stipulate to the entry of a default against Wife and the proceeding filed by Husband shall proceed as a default matter. Husband shall ... prepare the interlocutory judgment, and has, in fact, prepared this Agreement. Husband, shall, however, submit said documents to attorney for Wife for his approval." (Italics added.) Although the agreement does not specify husband shall prepare the stipulation for default, as it does with respect to the interlocutory judgment, the obligation to prepare the stipulation for default is reasonably inferable from his duty to prepare the judgment and from the requirement he submit "said documents" to wife's attorney for approval. The stipulation for default is one of the documents identified in the previous sentence and, therefore, is among the "said documents."
[2] The commissioner's reference to November 1, 1967, was clearly a typographical error.
[3] At the time of the order, Civil Code section 4513 provided in relevant part, "In cases in which the court has determined that a decree of dissolution ought to be granted, but by mistake, negligence or inadvertence, the judgment has not been signed, filed, and entered, the court may cause the judgment to be signed, dated, filed and entered therein as of the date the same could have been signed, dated, filed and entered originally ...."
[4] See now Family Code section 2346.
[5] Cochrane v. Superior Court (1968) 261 Cal. App.2d 201 [67 Cal. Rptr. 675], relied upon by husband, is not on point because it involved an attempt to consolidate with a superior court action a municipal court action over which the superior court had no jurisdiction.
[6] In his reply brief, husband contends for the first time Commissioner Brock's finding he was over $17,000 in arrears in child support is not supported by the evidence. As a general rule, new issues cannot be raised by appellant in a reply brief. (Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 496, p. 484.) In any event, we find the commissioner's ruling was supported by substantial evidence.
[*] See footnote, ante, page 1740. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263456/ | 24 Cal.App.4th 1564 (1994)
29 Cal. Rptr.2d 916
FNS MORTGAGE SERVICE CORPORATION, Plaintiff and Appellant,
v.
PACIFIC GENERAL GROUP, INC., et al., Defendants, Cross-complainants, and Appellants; INTERNATIONAL ASSOCIATION OF PLUMBING AND MECHANICAL OFFICIALS, Defendant, Cross-defendant and Respondent.
Docket No. C014392.
Court of Appeals of California, Third District.
May 12, 1994.
*1566 COUNSEL
Brown & Wood, Thomas G. Wood and David C. Powell for Plaintiff and Appellant.
Greve, Clifford, Diepenbrok & Paras, William L. Baker, Craig L. Scott, Steefel, Levitt & Weiss, Barry W. Lee and Donald P. Gagliardi for Defendants, Cross-complainants and Appellants.
Loeb & Loeb, Robin Meadow, Peter S. Selvin and Bert C. Cozart for Defendant, Cross-defendant and Respondent.
OPINION
BLEASE, Acting P.J.
This is an appeal from a defendant's summary judgment in an action for damages caused by defective plastic plumbing pipe installed in a 384-unit apartment complex. We will reverse the summary judgment.
Plaintiff, FNS Mortgage Service Corporation, is a developer and owner of the apartment complex. Cross-complainants, Pacific General Group, Inc., and P.E. O'Hair & Co., are, respectively, the general contractor and the distributor of the defective pipe. Defendant and cross-defendant is the International Association of Plumbing and Mechanical Officials (IAPMO), a nonprofit association controlled by officials engaged in the enforcement of local plumbing codes.
IAPMO promotes uniformity in the plumbing trade through its Uniform Plumbing Code (UPC) and publishes a plumbing research directory which lists plumbing products that it has found to meet UPC standards. Virtually all public entities, including the City of Sacramento, have adopted the UPC. An unlisted pipe not bearing the UPC logo is unmarketable, as building *1567 inspectors will not sanction its use. Plumbing wholesalers will not sell, and plumbers will not buy, such unlisted pipe.
The defective pipe was listed by IAPMO and stamped with IAPMO's federally registered mark, which certifies that the product has been approved by IAPMO as meeting uniform standards which it has promulgated.
The plaintiff and the cross-complainants, in pertinent part, seek to hold IAPMO liable on a theory of negligence. The trial court entered summary judgment for IAPMO on grounds that it owes them no duty because it is a nonprofit organization and because its activities are in the nature of a governmental function.
We conclude, following Restatement Second of Torts section 324A, that because IAPMO has undertaken to inspect pipe for conformity with uniform standards which it has promulgated and which have been adopted by public entities as part of the uniform building code, and has undertaken to enforce the standards by delisting or withdrawal of certification or destruction of nonconforming pipe, IAPMO is liable to purchasers injured by nonconforming pipe as a result of its failure to exercise reasonable care in the performance of these undertakings.
FACTS
IAPMO is a private, nonprofit corporation "formed for the purposes of promoting the interests of the science of plumbing and plumbing officials, and for the purpose of promoting the interests of all persons whose responsibility it is to interpret plumbing laws and practices to the public." It provides information about the science of plumbing, promulgates standards in plumbing technology and practice, promotes the adoption of a uniform plumbing code employing the standards, and works to educate the public and bring about cooperation among plumbing officials and those involved in the trade.
IAPMO promotes uniformity in the plumbing trade through its UPC and publishes a plumbing research directory which lists plumbing products, such as acrylonitrite-butadiene-styrene (ABS) drain, waste and vent (DWV) pipe, that it has found to meet UPC standards.
According to IAPMO's former executive director, IAPMO's purpose "is, and always has been, to assist state and local governmental entities in the development and enforcement of their plumbing codes." According to IAPMO's director of plumbing research programs, another of IAPMO's *1568 purposes is "to protect the consumers of pipe products from products which do not meet [standards]." According to IAPMO's present executive director, the listing service is designed to save plumbing officials "the trouble of having to reinvent the wheel and certify the product themselves."
IAPMO has voting and nonvoting memberships. Public entity members and their employees (typically plumbing inspectors) are entitled to vote; nonvoting members include representatives of private industry, labor and consumers. IAPMO is controlled by public entities and their employees through its officers and directors, who must be active, voting members.
To list a product in the plumbing research directory a manufacturer must submit a sample to IAPMO for testing for conformity with UPC standards. The manufacturer must also enter into a listing agreement under which IAPMO agrees to list the product and the manufacturer agrees to make the product according to standard. The manufacturer must affix IAPMO's federally registered mark, the letters "UPC" within a shield, to each product made in accordance with the standard, which certifies that the product conforms to minimum IAPMO standards and specifications. Manufacturers may, and typically do, use the UPC logo on product cartons, containers and advertising to promote their products. The listing agreement recites that the listing is "a representation of [IAPMO] that the product has been found to meet applicable standards and the requirements of the Uniform Plumbing Code." The listing period is one year, during which time the manufacturer agrees to four unannounced inspections by IAPMO at the manufacturer's expense. In the present case, an amendment to the listing agreement with the manufacturer of the allegedly defective pipe called for unannounced monthly inspections and for more specific test requirements for quality control. This was apparently in response to a growing problem of manufacturers using substandard materials in ABS products. The failure of the manufacturer to comply with the terms of the listing agreement is cause for delisting the product.
IAPMO collects an annual fee from a manufacturer to defray the costs of listing a product. In 1985, the listing fee for ABS DWV pipe was $522.50.
Virtually all public entities, including the City of Sacramento, have adopted the UPC. According to IAPMO's executive director, ABS DWV pipe must be listed with IAPMO to be installed in the State of California. An unlisted ABS DWV pipe not bearing the UPC logo is unmarketable, as building inspectors will not sanction its use. Plumbing wholesalers will not sell, and plumbers will not buy, unlisted ABS DWV pipe.
IAPMO recognizes the "marketplace or economic consequences" of product listing and exercises caution before imposing the "harsh sanction" of *1569 delisting an allegedly substandard product and ordering the UPC logo removed. IAPMO's executive director said delisting "would be like a death penalty" for a manufacturer.
In 1984 and 1985, Centaur Manufacturing made ABS DWV pipe that IAPMO approved for listing. In September 1984, an internal IAPMO memo directed that Centaur's operation be inspected and its pipe tested "ASAP" because "it has been alleged that Centaur is using outside regrind." UPC standards require virgin material; outside regrind is reprocessed material, and use of it in ABS pipe is reason for delisting the product. A March 1985 inspection found that Centaur's ABS DWV pipe did not meet minimum specifications for dimension and it was discovered that Centaur was using reprocessed ABS material. IAPMO put a hold on the pipe and told Centaur to either destroy the pipe or remove the UPC logo in the presence of an IAPMO representative. In May 1985, IAPMO imposed on Centaur a 30-day suspension of use of the UPC logo on ABS DWV pipe that failed thickness and impact tests. That same month, IAPMO renewed for one year its listing agreement with Centaur for the same pipe. In November 1985, IAPMO delisted Centaur's ABS DWV pipe but only for Centaur's failure to pay outstanding inspection fees.
In April 1985, San Juan Group, a partnership composed of FNS Mortgage Service Corporation and the developers of an apartment complex, PGG Real Estate Investors, Ltd., entered into a general contract with Pacific General Group for the construction of Park City Apartments, a 384-unit apartment complex, in the City of Sacramento. Pacific General Group subcontracted with Pacific Plumbing & Heating Company for installation of the plumbing. The contract and subcontract, consistent with the City of Sacramento codes, required that plumbing systems meet UPC specifications. From May through July 1985, Pacific Plumbing & Heating purchased ABS DWV pipe from P.E. O'Hair & Company, a plumbing supply distributor. The pipe sold to Pacific Plumbing & Heating was manufactured by Centaur. It was listed with IAPMO and bore the UPC logo; had it not, it would not have been purchased and installed.
Subsequently, it is claimed, the pipe prematurely deteriorated and failed because it was manufactured improperly and contained substandard materials, causing substantial property damage. Centaur admitted during the course of this litigation that, as a cost-saving measure, it used nonvirgin, regrind material, "everything that was available," in the manufacture of its ABS pipe.
The owners and developers of the project, FNS Mortgage Service Corporation, PGG Real Estate Investors, and San Juan Group, sued, as pertinent *1570 here, the general contractor, Pacific General Group, for strict product liability and negligence, the plumbing supply distributor, P.E. O'Hair, for strict product liability, negligence and negligent misrepresentation, and IAPMO for negligence and negligent misrepresentation. Pacific General Group cross-complained against IAPMO for negligence and equitable indemnity; P.E. O'Hair cross-complained against IAPMO for equitable indemnity.
The complaint and the cross-complaints against IAPMO allege that in listing and continuing to list the ABS pipe manufactured by Centaur that foreseeably would be relied upon by the plaintiffs and other defendants, IAPMO failed to use reasonable care in monitoring, inspecting and testing the pipe; that the pipe was defective; and that, had IAPMO exercised reasonable care, it would have discovered the defect and should have delisted the product.
IAPMO moved for summary judgment on the complaint and the cross-complaints. It contended, inter alia, that it is not liable for negligence because it had no duty to protect the plaintiffs and the cross-complainants from the risk of damage by defective pipe. For purposes of IAPMO's summary judgment motion, the allegations of negligent conduct were assumed to be true. The dispositive issue on which IAPMO sought summary judgment was whether, on the undisputed facts set out above, IAPMO's duty of due care ran to those who purchased and used the defective pipe.
The court granted IAPMO's motion and entered judgment for IAPMO on the complaint and the cross-complaints, concluding that policy considerations the fact that IAPMO does not profit by its services, and the fact that IAPMO performs services in the nature of a governmental function leave IAPMO unaccountable to the plaintiff and the cross-complainants for negligence.[1]
DISCUSSION
I
IAPMO contends that the summary judgment should be upheld based on the trial court's finding that it has no duty to avoid negligent conduct. IAPMO argues that under case law, e.g., Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], the issue of duty is governed by the balancing of policy considerations and that the *1571 balance in this case weighs against the existence of a duty of care. We disagree.
IAPMO's arguments begin and end with a discussion of the application of the policy considerations in Rowland to this case. However, the place to begin is at the beginning. (1) Rowland begins its analysis with Civil Code section 1714: "Every one is responsible ... for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person...." (Rowland v. Christian, supra, 69 Cal.2d at pp. 111-112.) It then says:
"Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. [Citations.]
"A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]" (Rowland v. Christian, supra, 69 Cal.2d at pp. 112-113, italics added.)
At this point Rowland turns to an examination of the common law rule that excepted a possessor of land from liability for injuries to persons who had entered upon that land, the criticisms and erosion to which it had been subjected in the light of changes in the law and society, and the lack of a present relationship between the categories of the common law and the considerations pertinent to an exception from the prevailing rule of liability. (69 Cal.2d at pp. 113-118.)
This recapitulation reveals two significant omissions in IAPMO's argument. The first is its failure to recognize that it bears the burden of demonstrating that the exception from liability it seeks is "clearly supported by public policy." The second is its failure to recognize that the question of duty must be considered in light of the existing law, rather than as a novel abstraction in each case. (Also cf., e.g., Andalon v. Superior Court (1984) *1572 162 Cal. App.3d 600, 610 [208 Cal. Rptr. 899]; Merenda v. Superior Court (1992) 3 Cal. App.4th 1, 8 [4 Cal. Rptr.2d 87].)
II
(2) The existing rule of liability pertinent to this case is set out in the Restatement Second of Torts section 324A (hereafter section 324A). "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking."
(3) IAPMO has undertaken to render the service of inspecting pipe manufacturers and delisting those who are unwilling or unable to adhere to standards it has promulgated. It should recognize that these services are necessary for the protection of third persons, consumers who will acquire the pipe and install it in improvements to realty. Indeed, such protection is one of IAPMO's avowed purposes. IAPMO's failure to exercise reasonable care in its undertakings increases the risk of harm to such consumers from defective pipe that otherwise would have been removed from the stream of commerce. IAPMO arguably has undertaken to perform a duty owed by local building officials to consumers (albeit one for which the officials would be afforded statutory immunity). The consumers here suffered harm because of the reliance of local building officials upon IAPMO's undertakings. IAPMO is subject to liability to consumers under the principles of section 324A for physical harm resulting from its failure to exercise reasonable care in its undertakings.
These principles were relied upon in Hempstead v. General Fire Extinguisher Corporation (D.Del 1967) 269 F. Supp. 109 to hold Underwriters' Laboratories accountable for negligence in approving the design of a fire extinguisher. Underwriters operates in a manner remarkably similar to IAPMO it is a nonprofit organization that provides services in fire, crime and casualty prevention. Among its activities is the establishment of minimum product standards and a listing service of products that meet the standards. Before listing a product, Underwriters tests it to determine whether it meets standards. If it passes, the product is listed in a publication, and the manufacturer is permitted to affix Underwriters' logo to products found to have met the standard. Underwriters may inspect operations of *1573 manufacturers with listed products to insure product standards continue to be met. If deficiencies are found, they must be corrected or the Underwriters' logo removed from the product. (Id. at pp. 116-117.)
In Hempstead, much like this case, the local fire prevention code authorized public officials to rely upon the services of Underwriters to determine the suitability of a particular type of fire extinguisher, thus Underwriters' approval of the fire extinguisher "was unquestionably of aid to [the plaintiff] in selling ... the extinguisher which exploded." (269 F. Supp. at p. 117.) Hempstead observed that, because of its testing and listing services, "[i]t is straining at words to say that Underwriters does not approve the design of a product. The design may originate with the manufacturer, but when Underwriters lists it, it thereby tacitly impresses its approval upon the design." (Ibid.)
A similar thread runs through Hanberry v. Hearst Corp. (1969) 276 Cal. App.2d 680 [81 Cal. Rptr. 519, 39 A.L.R.3d 173], although the opinion does not cite section 324A. Hanberry involved an injury caused by a defective product that carried Good Housekeeping magazine's seal of approval, a representation that the magazine is satisfied the product is a "good" one and not defective and on which the plaintiff relied in purchasing the product. The plaintiff sued Good Housekeeping's publisher, Hearst Corporation, for negligent misrepresentation. The trial court sustained Hearst's demurrer, and the Court of Appeal reversed, reasoning as follows. "Implicit in the seal and certification is the representation [Hearst] has taken reasonable steps to make an independent examination of the product endorsed, with some degree of expertise, and found it satisfactory. Since the very purpose of [Hearst]'s seal and certification is to induce consumers to purchase products so endorsed, it is foreseeable certain consumers will do so, relying upon [Hearst]'s representations concerning them, in some instances, even more than upon statements made by the retailer, manufacturer or distributor. [¶] Having voluntarily involved itself into the marketing process, having in effect loaned its reputation to promote and induce the sale of a given product, the question arises whether [Hearst] can escape liability for injury which results when the product is defective and not as represented by its endorsement. In voluntarily assuming this business relationship, we think [] Hearst has placed itself in the position where public policy imposes upon it the duty to use ordinary care in the issuance of its seal and certification of quality so that members of the consuming public who rely on its endorsement are not unreasonably exposed to the risk of harm." (Id. at p. 684.)
IAPMO seeks to distinguish Hanberry as a case involving an entity that endorsed a product for its own commercial gain, in contrast to IAPMO, *1574 which realizes no profit from its listing service and lists products to facilitate the work of public officials. However, nonprofit status is not a basis for exemption from liability. "[B]y the great weight of authority, and clearly the rule in California, persons who are not recipients of the charity, such as employees and strangers, may maintain an action based on negligence." (Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802, 812 [167 P.2d 729].) Although IAPMO does not profit by its enterprise, its activities are not wholly gratuitous it collects a fee from the manufacturer of every product it lists.
IAPMO argues that, unlike Hanberry, IAPMO's logo is the manufacturer's representation that it has agreed to manufacture the product to conform to UPC standards. Whatever the semantic merit of this claim, it has no bearing in this case as we look to Hanberry only for general support. The gravamen of the claim in the present case is IAPMO's negligence in failing to inspect or to take appropriate delisting action, and these omissions are clearly the conduct of IAPMO.
Nor do we find the fact that IAPMO is governed by public entities and governmental officials an appropriate basis for distinction. This would effectively confer on IAPMO governmental immunity, a legislative, not a judicial function. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-793 [221 Cal. Rptr. 840, 710 P.2d 907]; Coppernoll v. Board of Directors (1983) 138 Cal. App.3d 915, 918 [188 Cal. Rptr. 394].)
Unlike the hoary exception to liability in question in Rowland v. Christian, the rule of section 324A as reflected, inter alia, in Hempstead and Hanberry, has not been eroded by changed social circumstances, nor are we aware of any persuasive body of criticism of that principle. Accordingly, IAPMO bears a dual burden in this case in seeking an exception from the general rule of liability. It must overcome both the general rule and the weight of precedent which specifically supports the imposition of liability.
With these considerations in mind, we turn to the public policy arguments tendered by IAPMO.
III
As related, IAPMO's arguments track the list of considerations pertinent to an exception from the usual rule of liability given in Rowland v. Christian. We respond seriatim.
The first consideration is the extent to which IAPMO's conduct was intended to affect the plaintiffs. IAPMO argues that the only intended users *1575 of its listing service are public entities which require compliance with IAPMO standards. This is an evasion. The "end and aim" of IAPMO's undertakings is that the manufacture of the relevant building materials, according to safety and durability standards it has promulgated, benefits the consumers of the products. IAPMO's conduct is by this measure "intended to affect the plaintiff[s]." (See Biakanja v. Irving (1958) 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358].)
The next consideration is the foreseeability of harm to the plaintiffs. IAPMO argues that, in the light of Centaur's ability to manufacture pipe properly, Centaur's promise in the listing agreement to do so, and the potential sanctions to Centaur for failure to comply, IAPMO could not have foreseen that Centaur would continue to manufacture and sell non-UPC pipe. But the very existence of the inspection and delisting scheme contemplates that unscrupulous manufacturers may breach their promise to manufacture pipe in accordance with the standards. Though the draconian nature of a penalty may deter recidivism it is flatly untenable to claim that one cannot foresee recidivism in light of the severe penalties that are prescribed for its occurrence.
The degree of certainty that the plaintiffs suffered harm is not in issue. If their allegations are proven they certainly have.
That brings us to the closeness of the connection between IAPMO's conduct and the damage suffered. IAPMO claims that it did not manufacture the substandard pipe, or have the power to prevent Centaur from doing so; nor did IAPMO affix the UPC logo to the substandard pipe. Therefore it cannot be said to have caused the plaintiffs' damage.
That is not the case. If IAPMO delists the product it will not be installed. If IAPMO should have delisted the substandard pipe here in issue and negligently failed to do so, its conduct was a cause of the damage suffered.
The next consideration is the moral blame attached to IAPMO's conduct. IAPMO claims "[i]t is impossible to attach any moral blame to its conduct, which [it says] evinces none of the features that one normally associates with moral culpability, such [as] dishonesty, malice, avarice, and the like" and suggests that its nonprofit status confers morality upon its conduct. IAPMO's list of normal moral considerations is conveniently elliptical. It would contract tort law to cases of intentional and outrageous conduct. It is enough to say that where a sufficient likelihood of harm to another attends a failure to perform an undertaking, sloth or timidity can be characterized as immoral. As to IAPMO's beneficent purposes, good ends do not render moral any means of attaining them.
*1576 IAPMO's next argument addresses conjointly the consideration of the policy of preventing future harm and the truncated consideration of consequences to the community of imposing potential for liability. IAPMO argues that the public will be harmed if it owes a duty of due care to purchasers and users of listed products because that would force IAPMO to discontinue its listing service, with the consequence that dishonest or incompetent manufacturers would be free to enter the market with substandard products. This argument only has application to the latter of the two fused considerations. As to the prevention of future harm, it is enough to say that the policy is advanced by a rule that induces competent inspection and enforcement of delisting where appropriate.
We discern no unusual or peculiar burden on IAPMO in recognizing an ordinary duty of due care. IAPMO asserts that the imposition of liability would cause it to withdraw entirely from the field of inspection and certification of manufactured products subject to its standards. The assertion is predicated on the claim that IAPMO "does not have the financial ability to guarantee the quality of products it lists." The claim is vastly overblown; the imposition of liability for negligence for the conduct in this case does not entail a guarantee of products that IAPMO lists, only that it reasonably perform the tasks it has undertaken.
In any event, we are chary of indulging a conclusionary, self-serving assertion of this nature by a litigant, unsupported by appropriate fiscal evidence, especially in the context of a summary judgment motion. We note that while IAPMO may have limited direct resources of its own, no reason appears why it could not pass on to the manufacturers this aspect of the costs of the service it provides as it already does with other such costs.
The final consideration is the availability, cost, and prevalence of insurance for the risk involved. IAPMO candidly admits "[t]here was no substantive evidence on this subject." It nonetheless asserts that in light of the large number of products which it lists "[p]lainly, it would be prohibitively expensive, if not impossible, for IAPMO to obtain enough insurance to allow it to be the guarantor of the quality of each and every product bearing the UPC label." This argument rests on a hollow reed. The liability in issue is far from equivalent to such a guarantee. In the absence of evidence we cannot conclude that this consideration weighs in favor of IAPMO.
A review of the considerations pertinent to duty listed in Rowland v. Christian affords no significant support for IAPMO's claim for exemption from the ordinary rule of liability for negligent conduct. In light of this, and in light of the precedents which support the imposition of a duty of care in *1577 the circumstances alleged in this case, the summary judgment cannot be upheld.[2]
DISPOSITION
The judgment is reversed. Plaintiff and cross-complainants shall recover their costs on appeal.
Nicholson, J., and Raye, J., concurred.
Respondent's petition for review by the Supreme Court was denied August 11, 1994. George, J., was of the opinion that the petition should be granted.
NOTES
[1] Although recognizing that IAPMO performs functions for the benefit of public entities, the trial court rejected the notion that IAPMO is itself a de facto public entity and therefore entitled to governmental immunity. IAPMO has no quarrel on appeal with that determination.
[2] In light of this conclusion, we need not address the claims and arguments pertaining to other possible theories of liability presented, and we imply no view on these matters. IAPMO did move for summary adjudication of issues as an alternative to summary judgment. However, the matters as to which it sought summary adjudication were "that the specific issues enumerated in defendant's separate statement of undisputed facts, which is filed concurrently herewith, are established as being without substantial controversy." However, this is not a matter within the compass of summary adjudication of issues. (See Code Civ. Proc., § 437c, subd. (f).) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263471/ | 24 Cal.App.4th 1455 (1994)
30 Cal. Rptr.2d 138
THE PEOPLE, Plaintiff and Respondent,
v.
GREG AVILA, Defendant and Appellant.
Docket No. H011281.
Court of Appeals of California, Sixth District.
May 5, 1994.
*1457 COUNSEL
Michael A. Willemsen for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ann K. Jensen and Christina V. Kuo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MIHARA, J.
After pleading guilty to second degree murder, defendant Greg Avila moved to withdraw his plea on the ground that he had been misadvised regarding the length of the parole term he would be required to serve. Defendant appeals from the trial court's denial of that motion, arguing that the court's misadvisement violated an integral term of the plea agreement. We disagree and affirm the judgment.
BACKGROUND
Because the issues raised in this appeal are essentially procedural, a detailed recital of the underlying facts is unnecessary. Defendant's conviction arose from a confrontation with Isabol Lemus (referred to by witnesses as "Izzy") over a carton of cigarettes. Witnesses saw defendant slapping Izzy and demanding money. Later police found Izzy fatally stabbed in the chest near the site of the confrontation. Eight years later, while being detained for being intoxicated in a public place (Pen. Code[1], § 647, subd. (f)), defendant told a police officer that he had killed "Izzy" five years earlier by slashing the victim's throat. Unable to verify this information, the police officer released defendant. Two days later, however, another officer arrested defendant for the murder.
After a preliminary hearing, the People charged defendant by information with murder. (§ 187.) The information further alleged an enhancement for the personal use of a deadly weapon (§ 12022, subd. (b)) and one prior serious felony conviction (§§ 667, 1192.7). On February 10, 1992, defendant pleaded guilty to second degree murder, admitted the use of a knife, and submitted a motion to strike the prior conviction allegation. At the plea hearing, the trial court advised defendant of his constitutional rights and explained that defendant would receive a prison sentence of 15 years to life, plus one year for the knife enhancement. The court also told defendant that *1458 when he had completed his prison term, he would be on parole "for a period of up to three years."
Prior to sentencing defendant moved to withdraw his plea, contending the court had erred in advising him that the parole period would be up to three years. Instead, defendant noted, section 3000.1, subdivision (a), would subject him to parole for the rest of his life.[2] Relying on People v. Victorian (1992) 2 Cal. App.4th 954 [4 Cal. Rptr.2d 460], defendant characterized the trial court's error as a violation of his plea bargain, which required that he be permitted to withdraw his plea. The People, citing People v. McMillion (1992) 2 Cal. App.4th 1363 [3 Cal. Rptr.2d 821], responded that the parole period was not part of the bargain, and that defendant had failed to show prejudice from the misadvisement.
The trial court agreed with the People that McMillion controlled the outcome of the proceedings. In denying defendant's motion the court commented: "I think that it's clear the defendant was misadvised regarding this; but I think that with that mandatory, looking at that by the Board of Prisons in this case, that the defendant has received a good plea bargain." The trial court was uncertain whether defendant would be found guilty or not guilty if he received a trial. Nevertheless, the court found the parole period was not part of the plea bargain, and again expressed its view that defendant had received a "good plea bargain." The court then sentenced defendant to 15 years to life in prison, imposed a $200 restitution fine, and advised defendant that upon his release from prison he would be on parole for five years to life.
DISCUSSION
(1a) On appeal, the parties renew their debate over the applicability of People v. Victorian, supra, and People v. McMillion, supra, to this case. The People maintain that the court's error was in the nature of a failure to advise defendant of the consequences of his plea. (See Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [119 Cal. Rptr. 302, 531 P.2d 1086].) Since defendant failed to show prejudice from the error, he was not entitled to any remedy. (Cf. People v. McMillion, supra, 2 Cal. App.4th 1363.) Defendant, on the other hand, argues that because the error was one of "misadvice" *1459 rather than failure to advise, he was entitled to withdraw his plea without a showing of prejudice. (Cf. People v. Victorian, supra, 2 Cal. App.4th 954.)
(2a) Defendant's contention cannot succeed. In In re Moser (1993) 6 Cal.4th 342 [24 Cal. Rptr.2d 723, 862 P.2d 723], the Supreme Court emphasized that a particular error cannot automatically be categorized as either a failure to advise or a violation of a plea bargain; the advisement requirement and adherence to a plea bargain are two distinct principles which must be separately examined in every case. "`In any given case, there may be a violation of the advisement requirement, of the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially. Indeed, much of the confusion engendered by the appellate decisions on this issue results from a blurring of the distinction between these principles.'" (Id. at p. 351, quoting People v. Walker (1991) 54 Cal.3d 1013, 1020 [1 Cal. Rptr.2d 902, 819 P.2d 861].)
(1b) Defendant insists that People v. Victorian requires the trial court to permit him to withdraw his plea, even if the parole period was not a term of the plea agreement. We believe, however, that the approach taken by the appellate court in that case is inconsistent with People v. Walker, supra, and the more recent discussion in Moser. In Victorian, like the present case, the trial court misadvised the defendant regarding the applicable parole period following his prison term. The First District, Division Three, assumed that the court's misadvisement in a negotiated plea required a remedy even when the parole consequences were not terms of the plea agreement. The court accordingly did not discuss whether the misadvisement was in fact a breach of the plea agreement or whether the defendant was prejudiced by the misadvisement.
We believe this approach perpetuates the "blurring of the distinction" of which the Supreme Court has disapproved, and we therefore decline to follow it. Instead, we will apply the principles articulated in Walker and reaffirmed in Moser, analyzing separately the issues of erroneous advisement of penal consequences and adherence to the terms of the plea agreement.
1. Advisement of the Penal Consequences of the Plea
(2b) A trial court's misadvisement of the parole consequences of a plea, like a failure to advise, is error under Bunnell v. Superior Court, supra, 13 Cal.3d 592. (In re Moser, supra, 6 Cal.4th at p. 352.) Such error is not reversible unless the defendant demonstrates prejudice "i.e., that the defendant would not have entered the plea of guilty had the trial court given a *1460 proper advisement." (Ibid.; People v. Walker, supra, 54 Cal.3d at pp. 1022-1023; People v. McMillion, supra, 2 Cal. App.4th at p. 1370.) In Moser, supra, the defendant's petition for habeas corpus in superior court did not specifically allege prejudice from the trial court's erroneous advisement regarding his parole term. In their response the People did not mention the failure to assert prejudice, but only contested the remedy urged by the petitioner. Under these circumstances, the court determined that the appropriate disposition was to remand to the superior court for a hearing and findings on the question of prejudice.
(1c) In the present case, defendant's motion to withdraw his guilty plea was accompanied by a declaration stating that his request was based on his "inability to receive the benefit of [his] negotiated plea agreement." Like the petitioner in Moser, defendant did not specifically allege that he was prejudiced by the trial court's misadvisement. Unlike Moser, however, the People's response to the motion did assert that defendant had failed to show prejudice from this error. Specifically, the People suggested that, like the defendant in People v. McMillion, supra, defendant had received a favorable plea bargain, and that his prior experience in prison made him "presumably familiar with parole procedures."
The trial court agreed with the People that McMillion was controlling on the facts of the case. Accordingly, we may infer the court's reasoning to be based on the standard of prejudice described in that case i.e., whether it is reasonably probable the defendant would have pleaded guilty had he or she been correctly advised. (People v. McMillion, supra, 2 Cal. App.4th at p. 1370.) Although the trial court did not expressly articulate this standard, it did note that defendant had negotiated a "good plea bargain" and avoided a possible 30-year sentence resulting from a first degree murder conviction after a trial. We construe this reasoning as support for an implied finding that defendant would have pleaded guilty even if he had been correctly advised regarding the parole term he faced after prison.
This finding is supported by the record. Had he not pleaded guilty defendant could have been found guilty of first degree murder and received a prison term of 31 years to life.[3] His negotiated sentence of 16 years to life was thus a favorable one. We must conclude, therefore, that the court properly determined that defendant suffered no prejudice from the misadvisement of the parole consequences of his plea.
*1461 2. Violation of the Plea Bargain
(2c) The primary emphasis of defendant's argument is directed at the separate issue of whether the court's misadvisement violated a term of the plea agreement. If so, defendant is entitled to relief without a showing of prejudice. (People v. Walker, supra, 54 Cal.3d at p. 1026; In re Moser, supra, 6 Cal.4th at p. 354.)
(1d) Under the circumstances presented, however, we cannot agree that such a violation occurred. First, there is no evidence that a three-year maximum parole period was "a subject of negotiation (or even discussion) during the plea-negotiation process, or that the prosecutor made any promises or inducements relevant to the challenged element. (Cf. Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433, 92 S.Ct. 495] [`[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.'].)" (People v. McClellan (1993) 6 Cal.4th 367, 379 [24 Cal. Rptr.2d 739, 862 P.2d 739].)[4] Second, the parole period was a statutorily mandated consequence of defendant's conviction; it therefore could not have been the subject of negotiations or a condition of the final agreement. (Cf. People v. McMillion, supra, 2 Cal. App.4th at p. 1369; People v. McClellan, supra, 6 Cal.4th at pp. 380-381.) We must conclude, therefore, that the trial court's erroneous advisement regarding the parole period did not violate a term of the plea bargain. Reversal is not required.
DISPOSITION
The judgment is affirmed.
Premo, Acting P.J., and Wunderlich, J., concurred.
A petition for a rehearing was denied June 3, 1994.
NOTES
[1] All further code references are to the Penal Code.
[2] Section 3000.1, subdivision (a), provides: "In the case of any inmate sentenced under Section 1168 for any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate's life." Subdivision (b) of this section provides: "Notwithstanding any other provision of law, when any person referred to in subdivision (a) has been ... on parole ... continuously for ... five years in the case of any person imprisoned for second degree murder, since release from confinement, the board shall, within 30 days, discharge such person from parole, unless the board, for good cause, determines that such person will be retained on parole...."
[3] The information accused defendant of murder with the use of a deadly weapon, and one prior serious felony conviction. A trial could have resulted in a finding either that defendant premeditated the killing or that he killed the victim in the course of robbery. (§ 189.) Thus, defendant could have been convicted of first degree murder, carrying a penalty of 25 years to life. The prior conviction enhancement would have added five years to the sentence (§ 667), and the weapon use enhancement carried an additional one year. (§ 12022, subd. (b).)
[4] In his declaration supporting the motion to withdraw his plea, defendant stated that the court's parole advisement was made "pursuant to a negotiated plea agreement," thereby implying that the court was following the terms set by prior negotiations. This suggestion, however, is not supported by the record of the plea hearing. At that hearing the court referred to parole in the course of advising defendant of the penal consequences of his plea. Nothing in these advisements reflects any prior negotiation regarding the parole period. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263473/ | 24 Cal.App.4th 1780 (1994)
30 Cal. Rptr.2d 238
THE PEOPLE, Plaintiff and Respondent,
v.
DOUGLAS BRUCE JONES, Defendant and Appellant.
Docket No. F019656.
Court of Appeals of California, Fifth District.
May 19, 1994.
*1781 COUNSEL
John M. Hanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Garnand Venturi and Janette H. Shaw, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
VARTABEDIAN, J.
Douglas Bruce Jones appeals the sentence imposed for involuntary manslaughter on remand after his previous appeal. He challenges the trial court's denial of probation and its imposition of the middle prison term and a greater restitution fine than previously imposed. Our published discussion concerns only the fine issue. Other than to modify the restitution fine, we affirm.
FACTS AND PROCEEDINGS
John Miller was appellant's former employer. The two men had a misunderstanding about money. Appellant, who had been drinking, called Miller about the dispute, and the two men argued. Miller told appellant to come to Miller's place of business to settle the matter.
Appellant armed himself with a pistol and called his former wife to say he loved his daughters "no matter what happen[s] to him." He called his present *1782 wife at work, sounding upset. He started for Miller's, but then waited until other employees had left before entering through the rear door.
After appellant entered the building, the two men fought. Miller ended up on top of appellant. Appellant recalled Miller was skilled in martial arts and previously had told appellant he did not end a fight until the opponent was "finished." Accordingly, appellant pulled the pistol from his waistband. Appellant testified Miller said, "I don't give a fuck what you have in your hand.... I'll kill ya." Miller came toward appellant. Appellant shot Miller once in the stomach. Miller died.
Appellant was charged with first degree murder. A jury convicted him of voluntary manslaughter and found true an enhancement for personal use of a firearm. (Pen. Code, § 12022.5, subd. (a).)[1] The court sentenced appellant to the middle term of six years for voluntary manslaughter and four years for personal use of a firearm.
In 1993, we reversed appellant's conviction on the basis the trial court erroneously failed to instruct the jury on involuntary manslaughter as a lesser included offense of first degree murder. (People v. Jones (Jan. 15, 1993) F016771 [nonpub. opn.].) Our directions to the court on remand were "to enter a judgment of guilty of involuntary manslaughter unless within 20 days after this decision is final the prosecution files a written election with the court stating its intention to re-try defendant on charges of voluntary manslaughter. If the prosecution forgo[e]s prosecuting defendant for voluntary manslaughter, then defendant shall be resentenced for the crime of involuntary manslaughter plus the personal use of a firearm."
On April 7, 1993, the prosecutor stated in open court her election not to retry the case. Judgment of guilty of involuntary manslaughter (§ 192, subd. (b)), with the personal-use-of-a-firearm enhancement, was entered on April 28, 1993.
On May 12, 1993, appellant was sentenced to the middle term of three years for involuntary manslaughter and the four-year middle term on the gun-use enhancement. The court orally imposed a restitution fine of $5,000 pursuant to Government Code section 13967, although the fine was not noted in the clerk's minutes of the sentencing hearing. Appellant filed a timely notice of appeal on May 19, 1993.
*1783 DISCUSSION
I., II.[*]
.... .... .... .... .... .... .... .
III. Increase of Restitution Fine on Resentencing
(1) Appellant contends the trial court violated the state constitutional prohibition on double jeopardy by imposing a $5,000 restitution fine, when a fine of $1,000 was part of the sentence originally imposed for voluntary manslaughter.[4]
In 1963, the Supreme Court decided People v. Henderson (1963) 60 Cal.2d 482 [35 Cal. Rptr. 77, 386 P.2d 677]. That case held that under article I, section 13, of the California Constitution a capital defendant sentenced to life imprisonment at his first trial cannot receive the death penalty upon retrial after a successful appeal. (Id. at p. 497.) "A defendant's right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal." (Ibid.)
"The Henderson holding was not confined to invalidation of a death sentence after reversal of a judgment imposing a life sentence; it was applied to any case in which a more severe sentence is sought to be imposed on retrial." (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Defenses, § 316, p. 365.)
Respondent argues: "[A] defendant whose sentence was increased at resentencing after remand does not establish a violation of the proscription against double jeopardy. (People v. Savala [(1983)] 147 Cal. App.3d [63, 66] [195 Cal. Rptr. 193].) Here, the record contains numerous factors which support the [imposition] of the $5,000 fine and there is no indication that the increase was the result of the court punishing appellant for exercising his constitutional rights to appeal."[5]
In People v. Savala (1983) 147 Cal. App.3d 63, 67-68 [195 Cal. Rptr. 193], the question was, when a defendant's appeal is successful as to an enhancement upon which he was sentenced, may the trial court reconsider the *1784 sentences on other counts and enhancements in light of the modification of the overall sentence caused by the enhancement error? The court held that "the sentence" which may not be exceeded on remand is the aggregate sentence, not simply the sentence on the enhancement. Although expressly recognizing that the California Supreme Court "has imposed a limitation that the defendant not be sentenced to a punishment in excess of his original sentence" (id. at p. 67), the court held that this rule was not violated in the case before it because the aggregate sentence on remand was lower than the original aggregate sentence. (People v. Begnaud (1991) 235 Cal. App.3d 1548, 1557 [1 Cal. Rptr.2d 507]; see also In re Ditsch (1984) 162 Cal. App.3d 578, 582 [209 Cal. Rptr. 12].)
The critical question before us, which respondent has not addressed at all and appellant resolves only implicitly, is: What does "greater" mean when a sentence is composed of a monetary and a temporal component? Must we determine whether $4,000 is "greater" than the three-year difference in the original and remand sentences? We conclude that policy considerations discussed in People v. Walker, supra, 54 Cal.3d 1013 dictate that these sentencing components be examined separately.
Walker dealt with the imposition of restitution fines in the context of plea bargains that did not specifically contemplate such fines. After holding that imposition of such fines was in most circumstances impermissible, the *1785 California Supreme Court directed its attention to the appropriate remedy for violation of the plea agreement "To avoid the anomaly of restitution fines costing more money than they generate, and causing more harm than benefit to victims, a bright-line rule is desirable.... Accordingly, we hold that if the breach of the plea bargain is first raised after sentencing, the proper remedy generally is to reduce the fine to the statutory minimum, and to leave the plea bargain intact." (54 Cal.3d at p. 1029.)
In the present circumstances, the same practical considerations militate in favor of a bright-line rule. The rule must provide for ease of application in the trial court and it must foster a reduction of appeals that cost more than the public ever may collect from convicted felons. Consequently, we hold that, in cases where the Henderson double jeopardy prohibition is otherwise applicable, the monetary portion of a sentence on remand from a successful appeal may not exceed the monetary portion of the sentence originally imposed, absent some express agreement by the defendant to the contrary.
In this case, respondent has suggested no exception to the Henderson rule, nor are we aware of one applicable here. Thus, the trial court should have imposed a restitution fine no greater than the original fine.
DISPOSITION
The judgment is modified to reduce the Government Code section 13967 restitution fine from $5,000[6] to $1,000. As modified, the judgment is affirmed.
Ardaiz, Acting P.J., and Harris, J., concurred.
A petition for a rehearing was denied June 7, 1994, and appellant's petition for review by the Supreme Court was denied August 17, 1994.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I and II.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[*] See footnote, ante, page 1780.
[4] On appellant's motion, and over respondent's "relevancy" objection, we take judicial notice of our file in People v. Jones, supra, No. F016771. Respondent does not dispute that a $1,000 restitution fine was imposed originally.
[5] This position is at odds with established California authority: "[O]ur Supreme Court continues to reiterate its concern that a defendant not be placed in the `"`incredible dilemma'"' of suffering an erroneous conviction to stand unchallenged or risking a more severe sentence (People v. Henderson, supra, 60 Cal.2d at pp. 496-497) even though the United States Supreme Court has since determined that in general `the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction.' (North Carolina v. Pearce [(1969)] 395 U.S. [711, 719 (23 L.Ed.2d 656, 666, 89 S.Ct. 2072)].) Although presented with both the opportunity to do so and subsequent clarification of federal constitutional law, the court has never retreated from the rationale or holding of Henderson. (See, e.g., People v. Collins (1978) 21 Cal.3d 208, 216-217 ...; People v. White (1976) 16 Cal.3d 791, 802 ...; People v. Serrato (1973) 9 Cal.3d 753, 763-764 ..., disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 ...; Curry v. Superior Court [(1970)] 2 Cal.3d [707, 716-717]; People v. Hood (1969) 1 Cal.3d 444, 459 ...; see also People v. Ali (1967) 66 Cal.2d 277, 281 ...; People v. Foley (1985) 170 Cal. App.3d 1039, 1047-1048 ...; People v. Savala (1983) 147 Cal. App.3d 63, 67 ..., disapproved on other grounds in People v. Foley, supra, 170 Cal. App.3d at p. 1044; People v. Harvey (1978) 76 Cal. App.3d 441, 447-448....)" (People v. Superior Court (Harris) (1990) 217 Cal. App.3d 1332, 1337 [266 Cal. Rptr. 563].)
Respondent also contends appellant has waived this issue by not raising it in the trial court, relying on People v. Walker (1991) 54 Cal.3d 1013 [1 Cal. Rptr.2d 902, 819 P.2d 861]; see also People v. Welch (1993) 5 Cal.4th 228 [19 Cal. Rptr.2d 520, 851 P.2d 802]. It is not necessary to resolve that issue in this case, because the absence of any possible tactical purpose for counsel's silence on the double jeopardy issue, on the facts before us, would require that we reach the double jeopardy issue on a theory of ineffective assistance of trial counsel in any event. (See People v. Ledesma (1987) 43 Cal.3d 171, 217 [233 Cal. Rptr. 404, 729 P.2d 839].)
[6] As previously noted, the written minutes and judgment do not reflect any restitution fine; our record of the fine is based upon the court's oral imposition of judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263480/ | 142 F.Supp. 246 (1956)
J. A. HUMPHREY, G. E. Hall, A. Pollard Simons and William D. McBee, Plaintiffs,
v.
PLACID OIL COMPANY, Defendant.
Civ. A. No. 1135.
United States District Court E. D. Texas, Sherman Division.
May 29, 1956.
*247 *248 Lanham Croley (of Golden, Croley, Howell, Johnson & Mizell), Dallas, Tex., for plaintiffs, J. A. Humphrey and G. E. Hall.
Bascom Thomas (of Bowyer, Gray, Thomas, Crozier & Harris), Dallas, Tex., for plaintiff, A. Pollard Simons.
Fred G. Gannon, Dallas, Tex., for plaintiff, William D. McBee.
Ralph B. Shank (of Shank, Dedman & Payne), Dallas, Tex., for defendant, Placid Oil Co.
SHEEHY, Chief Judge.
This is an action by the plaintiffs, each of whom is a resident and citizen of the State of Texas, to recover from the defendant, a Delaware corporation, damages in the sum of $25,000 for alleged breach of contract or in the alternative to recover in quantum meruit the reasonable value of their services which plaintiffs allege is the sum of $25,000, which action grows out of a dry hole contribution letter agreement dated April 8, 1955, executed by the defendant and accepted by the plaintiffs' assignors.
The pertinent facts are found to be as hereinafter stated.
In the early part of April, 1955, Alex Hickey and H. R. Randall were contemplating drilling a test well for oil or gas in the southwest quarter of the I. Abraham Survey in Grayson County, Texas. This well was to be what is commonly referred to as a wildcat well. At that time Placid Oil Company owned oil and gas leases covering four tracts of land in the immediate area of the I. Abraham Survey, two of which tracts were contiguous to the I. Abraham Survey. The Shell Oil Company and Midwest Oil Corporation each owned oil and gas leases covering lands in the immediate area of the I. Abraham Survey. As is often done in the oil business, Hickey and Randall sought financial assistance in the drilling of the test well from other owners of oil and gas leases covering lands in the area in which the test well was to be drilled. The defendant, Placid Oil Company, gave to Hickey and Randall what is commonly referred to as a dry hole contribution letter. This letter, which *249 hereinafter will be referred to as the dry hole letter, is dated April 8, 1955, and was accepted by Hickey and Randall on April 12, 1955. The body of the letter is set out in Appendix A attached hereto and made a part hereof. Similar dry hole letters were obtained by Hickey and Randall from Midwest Oil Corporation and Shell Oil Company under the terms of which Midwest Oil Corporation was to make a dry hole contribution of $1,000 and Shell Oil Company was to make a dry hole contribution of $10,000. The test well could not have been drilled without the agreement of defendant to make the dry hole contribution in the sum of $25,000 and defendant was so advised by Hickey and Randall before it agreed to make the dry hole contribution in the sum of $25,000. After having first obtained the written consent of the defendant so to do, Hickey and Randall assigned all of their right, title and interest in and to the dry hole letters, including the dry hole letter of the defendant, to the plaintiffs, and thereafter the plaintiffs undertook the drilling of the test well referred to in the dry hole letters which is known as the S. A. Johnson No. 1 well. The well was commenced on April 28, 1955, and the plaintiffs continued the drilling of same until a depth of 10,025 feet was reached on July 27, 1955, at which time certain electrical logs or surveys of the well down to the 10,025 foot depth were made. The Oil Creek Sand of Ordivician Age was not encountered or reached at or prior to the 10,025 foot depth. At all times during the drilling of the well to the 10,025 foot depth defendant's representatives had free access to the derrick floor and were given all information concerning the drilling of the well, including daily drilling reports, samples of all cuttings and cores obtained in the drilling operations and copies of all electrical logs or surveys. During the process of drilling to the 10,025 foot depth the plaintiffs caused several drill stem tests to be made of certain formations or horizons in which there was either a showing of oil or the presence of oil sand. The first drill stem test was attempted on July 6, 1955, when a depth of 8,380 feet had been reached. Plaintiffs gave the defendant notice that this test was to be made, and the defendant had its geologist present at the well when the test was made. However, at the time plaintiffs notified defendant of the fact that such test was to be made defendant advised plaintiffs that it would not be necessary, in the future, to give advance notice to defendant of further drill stem tests. The first drill stem test was an effort to test the formation between 8,258 feet and 8,380 feet. Because of a packer failure this drill stem test was not successful. On July 8, 1955, when the well had been drilled to a depth of 8,422 feet, a second drill stem test was made testing the formation or formations between 8,255 feet and 8,422 feet. There was no failure of this test, and the results of the test were promptly transmitted to the defendant. On July 11 and 12 when the well had been drilled to a depth of 8,606 feet, a drill stem test was made of the formation or formations between 8,571 feet and 8,606 feet. The results of this test were promptly furnished to the defendant. On July 19 and 20, 1955, when the well had been drilled to a total depth of 9,270 feet, the plaintiffs made a drill stem test of the formation or formations between 9,202 feet and 9,270 feet. The results of this test were promptly furnished the defendant.
When the electrical logs or surveys of the well were made on July 27, 1955, as aforesaid, defendant's geologist was present and defendant was furnished with true and correct copies of said electrical logs or surveys.
On July 27, 1955, after obtaining the information shown by the electrical logs or surveys above mentioned, plaintiffs considered that information, together with the results of the drill stem tests that were made during the course of drilling and the samples of the various cuttings and cores obtained throughout the drilling operation and after obtaining the advice and opinions of their geologists and a petroleum engineer, concluded *250 that the well down to the 10,025 foot depth was a dry hole, i. e., it was not capable of producing oil or gas in paying quantities. Subsequent to reaching that conclusion and on the same date plaintiffs contacted defendant's representatives in defendant's office in Shreveport, Louisiana, and advised defendant's said representatives of its conclusions as to the well being a dry hole and made inquiry of defendant's representatives with reference to defendant's attitude as to making payment of the $25,000 provided for in its dry hole letter. Defendant's representatives contacted by plaintiffs advised plaintiffs that the defendant's decision in the matter would await the return of defendant's President, Mr. Dalton, to Shreveport on July 28, 1955. On the afternoon of July 28, 1955, defendant sent to plaintiffs the following telegram:
"Reference Made To Dry Hole Contribution Agreement Of April 8, 1955, Under Which S A Johnson # 1 Is Drilling. You Are Obligated To Properly Test All Horizons In Well Which Appear Promising Of Producing Oil Or Gas. To Do So You Must Set Pipe And Conduct Tests By Perforating And Sandfracing The Following Zones: 8142-8160; 8176-8190; 8240-8300; 8390-8450; 8570-8676; 8832-8870; 8955-8992; And 9200-9350. We Request That Well Be Properly Tested As Herein Provided, Th[e] Failure Of Which Will Be A Material Breach Of Agreement And A Forfeiture Of All Your Rights Under Same."
This telegram was received by plaintiffs in Dallas, Texas, at approximately 5 o'clock p.m. on July 28. The telegram was confirmed by defendant in a letter to plaintiffs dated July 28, 1955. From the time the plaintiffs completed the making of the electrical logs or surveys of the well on July 27 until defendant's telegram, above mentioned, was received on the afternoon of July 28 all operations at the well were shut down. Plaintiffs, upon receiving defendant's said telegram, treated same as an anticipatory breach or repudiation on the part of the defendant of the dry hole letter agreement in question. Considering that defendant had breached or repudiated said dry hole letter agreement plaintiffs decided to drill the well deeper and drilling operations were resumed. The well was then drilled to a depth of 10,250 feet. Upon that depth being reached additional electrical logs or surveys were run. These last mentioned electrical logs or surveys showed the formation between 10,028 feet and 10,060 feet to be promising of producing oil in paying quantities. As a result of that information plaintiffs proceeded to set pipe in the well, to perforate the pipe at the depth from 10,028 to 10,060 feet and to sandfrac.[1] Upon the completion of this last mentioned operation the plaintiffs were able to and did complete the well as a producing well on or about August 1, 1955, with production being from a formation or formations below 10,025 feet. The well has never been plugged and is still producing oil, however, the production has consistently declined each month. In September, 1955, the first month of production from the well, 1,403.96 barrels of oil were produced. Each month thereafter the production became less. In January, 1956, the production was down to 525.82 barrels and the evidence does not show the exact production for any month after January, 1956.
Up to the time plaintiffs received defendant's telegram, above quoted, plaintiffs had allowed defendant's agents or representatives full access to the derrick floor of the drilling rig and had furnished to defendant all information relative to said well and the drilling thereof available to plaintiffs as required by defendant's dry hole agreement in question.
*251 By registered letter dated August 5, 1955, the defendant advised plaintiffs in part as follows:
"Under the Dry Hole Contribution Letter Agreement of April 8, 1955, which was accepted by you on April 12, 1955, the consideration to us, for our agreement therein contained, was the furnishing to us the information and material set forth in said agreement.
"Our duly authorized representative, Mr. Charles Williams, who has been present at the location of operations, has requested and demanded such information and material in accordance with the agreement and you have denied and have consistently denied him such information and material and have refused and failed to send said information to us at the above address, so please be advised that this letter is notice to you of our termination of said agreement and all rights you once had under same."
By letter dated August 25, 1955, addressed to the defendant plaintiffs, acting through their attorneys, made demand on defendant for the payment of the sum of $25,000, the amount the defendant had agreed to pay plaintiffs in its dry hole contribution letter. By letter dated August 26, 1955, addressed to plaintiffs' attorneys and in reply to plaintiffs' said letter of August 25, defendant refused to pay said sum of $25,000 and advised plaintiffs in part as follows:
"Since your clients breached the agreement by failing to supply the necessary information, we terminated same as of August 5, 1955, which relieves us of any obligations under said agreement; therefore, we specifically deny any obligation that we owe your clients the sum of $25,000.00"
The actual drilling of the well in question was performed on behalf of plaintiffs by M. J. DeLaney Company of Dallas, Texas, and the said M. J. DeLaney Company acted for and on behalf of plaintiffs in the drilling of the well and in the furnishing of the information relative to the drilling of the well to those entitled thereto, including defendant. At the outset of the drilling operations there was set up in the office of M. J. DeLaney Company a list of those entitled to receive the information relative to the well and the drilling thereof, and included on this list, among others, was the defendant. On or about September 15, 1955, when distribution of certified copies of the driller's log on the well in question was being made to those entitled to receive information as to the drilling of said well, a secretary in the office of M. J. DeLaney Company by letter of transmittal dated September 15, 1955, sent to defendant a certified copy of the driller's log on the well in question.
In drilling the Johnson well to the 10,025 foot depth and in making the electrical logs or surveys that were made on August 27, 1955, the plaintiffs expended approximately $121,000. If plaintiffs had plugged the well at the 10,025 foot depth, the cost to them of the plugging operation would have been $2,000. The cost to plaintiffs of testing the formation or zones mentioned in defendant's telegram, above quoted, in the manner requested by defendant in said telegram would have been approximately $75,000, exclusive of any cost for casing and tubing.
Subsequent to the completion of the Johnson well the defendant drilled a well on a tract of land east of and adjacent to the I. Abraham Survey on which it had an oil and gas lease, the primary term of which was expiring in May, 1956. This well was known as the J. H. Lawrence No. 1 well and was located approximately one-quarter of a mile almost due east of the Johnson well. Defendant started the drilling of the Lawrence well on or about September 13, 1955, and drilled same to a depth of approximately 10,435 feet, which depth was reached in the early part of November, 1955. The Lawrence well was completed *252 as a producer of oil in a zone or formation deeper than the zone or formation in which the Johnson well was completed as a producer. Defendant in the drilling of the Lawrence well did not make a drill stem test or any other test of any zone or formation above 10,025 feet and did not set pipe and test any zone or formation above 10,025 feet by perforating the pipe and sandfracing. When the Lawrence well reached the total depth of approximately 10,435 feet, the defendant did set pipe and test the zone or formation from which the Lawrence well is now producing by perforating the pipe in that zone or formation and sandfracing.
The plaintiffs contend that the defendant's telegram of July 28, 1955, constituted an anticipatory breach or renunciation of the dry hole letter agreement in question, which they elected to accept and treat as such, thereby relieving them from any further performance, and because of said breach or renunciation plaintiffs have been damaged in the sum of $25,000 which they are entitled to recover herein. In the alternative plaintiffs contend that, even if defendant's said telegram did not constitute an anticipatory breach or renunciation of the dry hole letter agreement and plaintiffs breached said contract, plaintiffs are entitled to recover in quantum meruit the reasonable value of the services they rendered defendant in the furnishing to defendant of the information relative to said well and the drilling thereof that they did furnish defendant which reasonable value they alleged to be the sum of $25,000. The defendant denies that it was guilty of any anticipatory breach or renunciation of the dry hole letter agreement and further contends that if its telegram and letter dated July 28, 1955, constituted an anticipatory breach or renunciation of the dry hole letter agreement, plaintiffs waived any such anticipatory breach or renunciation by its conduct subsequent to July 28, 1955, in demanding payment from defendant of the $25,000 as they did in the letter of their attorneys to defendant dated August 25, 1955, above referred to, and by furnishing defendant with a certified copy of the driller's log on the well in question on or about September 15, 1955. The defendant also denies that the plaintiffs are entitled to recover on a quantum meruit basis.
The doctrine of allowing a recovery for an anticipatory breach of a contract is recognized in Texas.[2] The repudiation of a contract by one of the parties to it before the time of performance by the repudiating party has arrived amounts to a tender of breach of the entire contract, and, if it is accepted by the other party, it constitutes what is known in law as an anticipatory breach of such contract as a whole, and in such event the injured party is at liberty to treat the contract as terminated and to at once demand his damages for such breach.[3] In order for there to be such a repudiation of a contract the declaration of an intention not to perform the contract in the future must be positive and unconditional in its terms.[4] Such an anticipatory breach or repudiation has been committed when one party to the contract demands of the other a performance to which he has no right under the contract and states definitely that unless his demand is complied with he will not render his promised performance.[5]
*253 In order to determine whether defendant's telegram of July 28 constitutes an anticipatory breach or repudiation of the dry hole letter agreement we must look to the purposes of the dry hole letter agreement and the rights and obligations of the respective parties thereunder. The dry hole letter agreement is a type of contract that could be referred to as an information contract and is quite common in the business of exploring for and producing oil and gas. It is the type of contract under which one who drills a test well on a lease in which he is interested receives financial assistance by way of contributions from an owner or owners of adjoining land or oil or gas leases covering adjoining or nearby lands. The object of the party to the contract who is the contributor is to secure the benefit of information to be derived from the drilling of a test well near his holdings in order that he might act prudently in future expenditures in the development of his holdings for oil and gas. Prior to and at the inception of the dry hole letter agreement plaintiffs' assignors were desirous of drilling the Johnson well on lands in which they owned an interest in the oil and gas but in order to drill such well they were going to have to have financial assistance in the event the well was a dry hole. The defendant, as the owner of oil and gas leases covering four tracts of land in the general area of the Johnson well, two of which tracts were adjacent to the tract of land upon which the Johnson well was to be drilled, realized the value to them of the information that would be received if the Johnson well were drilled to either a given depth or to a certain formation or zone. It was under these circumstances that defendant and plaintiffs' assignors entered into the dry hole letter agreement.
The only performance required of defendant by the dry hole letter was the payment by defendant to plaintiffs of the sum of $25,000 when the plaintiffs had performed those performances required of them by the dry hole letter. At the time plaintiffs' representatives contacted defendant's representatives on July 27, 1955, after defendant had been furnished with copies of the electrical logs or surveys made of said well that day to the 10,025 foot depth, the plaintiffs had drilled the well to the total depth required by the dry hole letter, i. e., they had drilled the well to a depth slightly in excess of 10,000 feet without having encountered Oil Creek Sand of Ordivician Age, and at that time the plaintiffs had fully complied with all the terms and provisions of the dry hole letter with the exception of furnishing defendant with a certified copy of the driller's log, abandoning and plugging the well as a dry hole and furnishing defendant with a plugging report evidencing the plugging of the well in accordance with the law of the State of Texas and the testing of the horizons or zones mentioned in defendant's telegram of July 28 in the manner requested by defendant in said telegram, provided plaintiffs under the dry hole letter were required to test said horizons or zones in the manner requested by defendant. All the information that would be contained in a copy of the driller's log had been furnished defendant through the daily drilling reports previously furnished defendant by the plaintiffs. When plaintiffs contacted defendant's representatives on July 27, as aforesaid, they did not request or demand of defendant that the defendant immediately pay the sum of $25,000. The effect of the statements made by plaintiffs' representatives to defendant's representatives on that occasion was to advise the defendant's representatives that the plaintiffs had concluded that the well to the 10,025 foot depth was a dry hole and to make inquiry of the defendant as to their attitude in that respect to the end that if defendant concurred in the opinion that the well was a dry hole and the well were plugged and abandoned at that depth, the defendant would make payment of the sum of $25,000. Plaintiffs did not at that time indicate to the defendant that they would not abandon and plug the well and furnish *254 defendant with a plugging report evidencing the plugging of the well in accordance with the law of the State of Texas and would not furnish defendant with a certified copy of the driller's log, and defendant did not believe or understand from that conversation with plaintiffs' representative that plaintiffs would not abandon and plug the well and would not furnish defendant with a copy of the plugging report and a copy of the driller's log.
Did defendant's telegram of July 28, above quoted, considered in the light of all attending circumstances, above mentioned, constitute an anticipatory breach or renunciation of the dry hole letter agreement by defendant? Although the telegram might be said to be couched in terms of a request, it is in effect a positive unconditional statement on the part of the defendant that it would not perform the contract by making payment to plaintiffs of the sum of $25,000 unless the plaintiffs set pipe and tested the zones or horizons mentioned in said telegram by perforating the pipe and sandfracing. If the plaintiffs were not required by the dry hole letter agreement to test such zones and horizons in such manner, defendant's said telegram was an arbitrary and unreasonable demand of a performance on the part of plaintiffs which plaintiffs had not contracted to perform and clearly constituted an anticipatory breach or renunciation of the dry hole letter agreement by the defendant. The only type of test specifically mentioned in the dry hole letter agreement is the drill stem test, several of which the plaintiffs made in the process of drilling as above pointed out.
In order to determine whether plaintiffs were under the duty to test the zones or horizons mentioned in the telegram in question in the manner set out in the telegram an examination of the seventh paragraph of the dry hole letter must be made. Under the provisions of that paragraph the plaintiffs were under the duty to properly test any horizon or formation when an electrical formation survey is made, either before or after contract depth, and the information from such survey considered by itself or in conjunction with other indications or evidence from cuttings, cores or showings makes the formation appear promising of producing oil or gas in paying quantities, provided the plaintiffs had not previously tested any such formation. Did the electrical logs or surveys made on July 27, 1955, above referred to, either by themselves or in conjunction with other indications or evidence from cuttings, cores or showings made or encountered during the drilling of the well to the 10,025 foot depth make the formation or zones mentioned in defendant's said telegram or any of them promising of producing oil or gas in paying quantities? In order to answer that question the meaning of the phrase "makes the formation appear promising of producing oil or gas in paying quantities" as used in the seventh paragraph of the dry hole letter must be determined. The word "makes" is defined in Webster's New International Dictionary, Second Edition, Unabridged, under Note 21 as meaning "to cause; to constrain or compel." In the same dictionary "promising" is defined as meaning "full of promise; likely," and the word "likely" is defined as meaning "of such a nature or so circumstanced as to render something probable." Neither party has cited a case from Texas or elsewhere wherein the term "paying quantities" as used in a dry hole contribution agreement similar to the one here in question was construed and I have been unable to find any such case. The Supreme Court of Texas in Garcia v. King, 139 Tex. 578, 164 S.W.2d 509, in construing the habendum clause of an oil and gas lease under the terms of which the lease was extended "and so long thereafter as oil, gas, or other minerals is produced from said land," held that the term "produced" meant "produced in paying quantities" and that "paying quantities" meant that the production be sufficient under normal conditions that lessee could realize a profit over and above current operating cost after deducting lessor's *255 royalty. In actions to cancel an oil and gas lease on the ground that the lessee has failed to develop the lease under his implied covenant to develop, the Courts of Texas have held that there must be a reasonable expectation that oil or gas can be produced in paying quantities and by "paying quantities" as used in that respect is meant that it must reasonably appear that oil or gas can be produced in such quantities as to pay the cost of development and production and afford a reasonable profit to lessee.[6] The term "paying quantities" as used in the provisions of an oil and gas lease to the effect that the lessee must drill to a certain depth unless oil or gas be encountered in paying quantities above that depth has been construed to mean such quantities of oil or gas that an ordinarily prudent person experienced in oil or gas production, would, taking into consideration the surrounding circumstances and conditions, expect a reasonable profit over and above the entire cost of drilling, equipping and operating the well so drilled.[7]
It is noted that the court in the Garcia Case, supra, did not include the cost of drilling or development in the definition of "paying quantities." That is readily understandable because the purpose of that part of the habendum clause of the oil and gas lease construed by the court in that case had for its purpose the extension of an oil and gas lease beyond its primary term because of the production of oil or gas from said land at the time of the expiration of the primary term. Under those circumstances the cost of drilling or development is not entitled to consideration as the well had already been drilled and that cost incurred. The proper and only inquiry under those circumstances was whether oil or gas was being produced at or after the expiration of the primary term in sufficient quantity that it would be profitable for the lessee to continue producing the well.
Considering the objects of the dry hole letter, both from the standpoint of the plaintiffs and from the standpoint of the defendant, I am of the opinion and so conclude that "paying quantities" as used in the dry hole letter agreement in question means such quantities of oil or gas that an ordinarily prudent person experienced in oil or gas production, would, taking into consideration the circumstances and conditions then existing, expect a reasonable profit over and above the cost of drilling, equipping and operating the well. In view of that conclusion and the definitions of "makes" and "promising," above pointed out, it follows that the phrase "makes the formation appear promising of producing oil or gas in paying quantities" as used in the dry hole letter means "to cause the formation to appear reasonably probable of producing oil or gas in such quantities that an ordinarily prudent person experienced in oil or gas production, would, taking into consideration the existing conditions and circumstances, expect a reasonable profit over and above the cost of drilling, equipping and operating the well."
Whether in defining the term "paying quantities" as used in the dry hole letter the element of cost of drilling or development should be included or whether only cost of production should be considered is not too material to the decision of this case because I find from the evidence that the electrical logs or surveys made of the well in question on July 27, 1955, considered by themselves or in conjunction with other indications or evidence from cuttings, cores, showings or drill stem tests did not make any formation, zone, or horizon down to the 10,025 foot depth, including the zones *256 or horizons mentioned in defendant's telegram of July 28, appear reasonably probable of producing oil or gas in such quantities that an ordinarily prudent person experienced in oil or gas production would, taking into consideration the existing conditions and circumstances, expect a reasonable profit over and above current operating cost.
In view of the finding last mentioned, it is apparent that the plaintiffs were under no duty to make the test of the zones, or any of them, referred to in defendant's telegram of July 28, in the manner therein requested or in any other manner but in order that there might be a decision on all issues raised in this case I will take up the question as to the meaning of "properly test" as used in the seventh paragraph of the dry hole letter and plaintiffs' duty or responsibility in that respect. Neither party has cited any case construing the term "properly test" but to me that term could have only one meaning and that is the making of such test or tests in such manner as an ordinarily prudent operator would have made under the same or similar circumstances. In applying that meaning to the term "properly test" I find that an ordinarily prudent operator would not have tested the zones referred to in defendant's telegram of July 28, or any of them, in the manner defendant in said telegram requested the plaintiffs to test said zones.
Under the findings and conclusions above made, I have reached the inevitable conclusion that defendant's telegram of July 28 constituted an anticipatory breach or repudiation of the dry hole letter agreement. That being true, plaintiffs, under the authorities hereinabove cited, had the right to accept such repudiation as final and to treat the contract as terminated with no duty being on them to perform further under the contract. This, the plaintiffs did. Within a very short time after plaintiffs received defendant's telegram in question and after seeking the advice of their attorneys the plaintiffs concluded that said telegram constituted an anticipatory breach or renunciation on the part of the defendant of the dry hole letter agreement and they accepted it as such a breach or renunciation. Under these circumstances plaintiffs, considering the dry hole letter agreement no longer in force, decided to resume drilling operations and to drill the Johnson well deeper in an effort to find oil or gas in paying quantities. Drilling operations were resumed in the late afternoon of July 28, 1955, and continued until the depth of 10,250 feet was reached on or about August 1, 1955. At all times subsequent to the resumption of drilling on the afternoon of July 28 the plaintiffs refused defendant and its representatives access to the derrick floor and refused to and did not furnish defendant with any information, samples, cuttings, cores or reports, including copies of electrical logs or surveys made of the well subsequent to July 28, relative to said well and the drilling thereof except a certified copy of the driller's log that was furnished defendant on or about September 15, 1955, as above mentioned. Plaintiffs, having promptly elected to accept the anticipatory breach or renunciation, continued at all times subsequent thereto to treat said contract as terminated and never at any time waived such breach or renunciation.
The damages to which plaintiffs are entitled because of said anticipatory breach or repudiation of the dry hole letter agreement are to be determined as of the date of the breach or repudiation, but such damages are to be full compensation for the loss occasioned by depriving plaintiffs of the benefit of the contract.[8] Since the injury is to the contract as a whole, the measure of damages is the value of the thing injured or destroyed regarded as an article or property.[9]
Under the findings hereinabove made, the plaintiffs, at the time the well reached the 10,025 foot depth and the *257 electrical logs or surveys of July 27 had been made, had fully complied with their obligations under the dry hole letter agreement with the exception of plugging the well and furnishing defendant with a copy of the plugging report and a certified copy of the driller's log. Had the well been plugged at that time the defendant would have been obligated to pay the plaintiffs the sum of $25,000 upon being furnished a copy of the plugging report and a certified copy of the driller's log. The cost of plugging the well, which cost the plaintiffs did not incur, would have been the sum of $2,000. The plugging report could not have been of value to the defendant and, as above set out, all the information that would have been contained in the driller's log was previously furnished the defendant by plaintiffs in the daily drilling reports. In light of those facts I find that by reason of the anticipatory breach and renunciation of the dry hole letter agreement on the part of the defendant, plaintiffs have been damaged in the sum of $23,000.
As above indicated, plaintiffs alternatively to their cause of action for breach of contract seek to recover herein in quantum meruit the value of the services rendered by them to the defendant and accepted by the defendant in connection with the drilling of the test well in question. The services rendered by plaintiffs to the defendant under the dry hole letter agreement were the various types of information furnished by plaintiffs to the defendant during the course of the drilling of the well in question up to the time plaintiffs received defendant's telegram of July 28 as hereinabove set out.
Texas recognizes the doctrine that one who has but partially performed a contract and is himself guilty of a breach of the contract may recover on quantum meruit the reasonable value of the services rendered and knowingly accepted by the other party subject to the right of the other party to recoup or reconvene his damages for the breach of the contract.[10] The amount that may be recovered under this doctrine may not exceed the contract price.[11]
Although I am of the opinion that plaintiffs' recovery herein should be on their cause of action for breach of contract, I will nevertheless make a finding as to the reasonable value of the information that was furnished defendant by the plaintiffs to the end that if an appeal is taken from the judgment entered herein and on said appeal it is determined that plaintiffs are not entitled to recover on their cause of action for breach of contract as herein concluded but that plaintiffs are entitled to recover on their action in quantum meruit, the appellate court will have before it a finding of fact as to the reasonable value of said information furnished defendant by plaintiffs.
Unquestionably, the type of information obtained and furnished by plaintiffs to defendant and accepted in connection with the drilling of the well had a definite value to the defendant and the courts have so recognized.[12] By the dry hole letter agreement the parties thereto contemplated the drilling of the well to a depth of 10,000 feet or to a depth sufficient to test the Oil Creek Sand of Ordivician Age provided the last mentioned depth was reached before the 10,000 foot depth. The undisputed evidence shows that the Oil Creek Sand of Ordivician Age had not been encountered to the 10,025 foot depth. Obviously, the defendant at the time it entered into the dry hole letter agreement believed that the information it would receive from plaintiffs down to the 10,000 foot depth *258 would be worth $25,000 to it because that is the amount it agreed to pay for such information. Therefore, I find that the reasonable value of the information plaintiffs furnished defendant in connection with the drilling of the Johnson well, as above pointed out, and accepted by the defendant is the sum of $25,000.
Judgment will be entered herein in favor of the plaintiffs on their action for breach of contract, and that judgment will be to the effect that plaintiffs, jointly, recover of and from the defendant the sum of $23,000, together with all costs of Court incurred herein.
This Memorandum Decision shall constitute the Findings of Fact and Conclusions of Law herein as authorized by Rule 52, Fed.Rules Civ.Proc., 28 U.S. C.A.
Appendix A.
"When accepted by you this letter will constitute our agreement regarding the drilling by you of a test well for oil or gas in Grayson County, Texas, and our dry hole contribution in support of the well.
"The well shall be located 660 feet from the South line and 660 feet from the West line of I. Abraham Survey, A-1578, being the Northeast Quarter (NE¼) of Section 8, University Leagues 1, 11, 15 and 16, Grayson County, Texas.
"Operations for the drilling of said well shall be commenced on or before thirty (30) days from the date hereof and shall be prosecuted thereafter with due diligence and in a good and workmanlike manner until one of the following depths is reached:
"(a) A depth which, in the opinion of our geologist, is sufficient to test the Oil Creek Sand of Ordivician Age, or
"(b) A total depth of 10,000 feet; whichever is the lesser depth.
"In the event that said well is abandoned as a dry hole after reaching either of the depths set out above and provided that you have complied with all of the terms and conditions of this letter, then in that event and only in that event, we will pay you jointly as a dry hole contribution the sum of $25,000.00.
"At all times during the drilling, testing and completing of said well (regardless of depth actually drilled and even though you should elect to forfeit the dry hole contribution by failing to perform fully the conditions of this letter), our agents or representatives shall have access to the derrick floor and shall be entitled to receive all information during such operations the same as though we were drilling the well; and specifically, but not limited to, we shall be furnished:
"(1) Daily drilling reports:
"(2) Samples of all cuttings and cores obtained in said drilling operations unless we elect not to take same;
"(3) Certified copy of driller's log;
"(4) True copy of an electrical formation survey from the base of the surface casing to total depth;
"(5) Complete information on drill stem tests made during drilling or after completion of drilling;
"(6) Sufficient notice of the taking of any cores or of the making of any tests for us to have a representative present to witness the operation if we so desire; and
"(7) Completion and plugging report evidencing the plugging of the well in accordance with the law of the State of Texas if said well results in a dry hole.
"After location of the above well has been staked and prior to the spudding in of the well you shall furnish us with a plat of the location of the well.
"When an electrical formation survey is made, either before or after contract depth, and the formation from such survey considered by itself or in conjunction with other indications or evidence from cuttings, cores or showings makes the formation appear promising of producing oil or gas in paying quantities, you *259 shall properly test such horizon if you have not previously tested it in this well.
"The agreement evidenced by this letter shall not be construed as creating a partnership or joint venture between us as the well is to be drilled at your sole cost, risk and expense.
"Neither this letter nor any rights hereunder may be assigned by you to any person or firm without our written consent.
"All notices required hereunder shall be given to our office at 418 Market Street, Shreveport, Louisiana, Telephone 42691.
"It is understood and agreed by all parties hereto that this letter supersedes and takes the place of a prior letter agreement dated April 5, 1955, addressed to M. E. Wainright, 601 Gulf States Building, Dallas, Texas, and M. E. Wainright joins herein to acknowledge the fact that the letter of April 5, 1955, is of no further force and effect.
"If the foregoing is in keeping with your understanding of our agreement, please execute the original and one copy of this letter in the space provided below and return the fully executed copy to us within fifteen (15) days from the date hereof."
NOTES
[1] Sandfracing is an operation designed to loosen or break up tight formations which contain oil, thus causing said formations to have more permeability and resulting capability of producing oil.
[2] Pollack v. Pollack, Tex.Com.App., 46 S.W.2d 292; Englehart v. Volunteer State Life Ins. Co., Tex.Civ.App., 195 S.W.2d 798 (Writ of Error Refused)
[3] Greenwall Theatrical Circuit Co. v. Markowitz, 97 Tex. 479, 79 S.W. 1069, 65 L.R.A. 302; Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975; and Pollack v. Pollack, supra.
[4] Moore v. Jenkins, supra; and Kilgore v. Northwest Texas Baptist Educational Ass'n, 90 Tex. 139, 37 S.W. 598.
[5] L. G. Balfour Co. v. Brown, Tex.Civ. App., 110 S.W.2d 104, 107; Swift & Co. v. Continental Oil & Cotton Co., Tex. Civ.App., 170 S.W. 114 (Writ of Error Refused); Jordan v. Madsen, 252 P. 570; and Corbin, Contracts, Vol. 4, Sec. 973.
[6] Fort Worth National Bank v. McLean, Tex.Civ.App., 245 S.W.2d 309 (Writ of Error Refused NRE); and Magnolia Petroleum Company v. Page, Tex.Civ. App., 141 S.W.2d 691 (Writ of Error Refused).
[7] Wolf Creek Oil Co. v. Turman Oil Co., 148 Kan. 414, 83 P.2d 136; and Riedman v. Barkwill, 139 Cal.App. 564, 34 P. 2d 744.
[8] Pollack v. Pollack, supra.
[9] Pollack v. Pollack, supra.
[10] City of Sherman v. Connor, 88 Tex. 35, 29 S.W. 1053; Colbert v. Dallas Joint Stock Land Bank, Tex.Com.App., 129 Tex. 235, 102 S.W.2d 1031; and 10 Tex.Jur., Sec. 235, pp. 411 and 413.
[11] Colbert v. Dallas Joint Stock Land Bank, supra.
[12] Hoffer Oil Corporation v. Carpenter, 10 Cir., 34 F.2d 589; and Atlantic Oil Producing Co. v. Masterson, 5 Cir., 30 F.2d 481. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263486/ | 142 F.Supp. 602 (1956)
Walter W. FLORA, Plaintiff,
v.
The UNITED STATES of America, Defendant.
Civ. No. 3916.
United States District Court D. Wyoming.
July 24, 1956.
*603 A. G. McClintock, Cheyenne, Wyo., for plaintiff.
John F. Raper, U. S. Atty., of Cheyenne, Wyo., and Thomas H. Foye, Atty., U. S. Dept. of Justice, Tax Division, Washington, D. C., for defendant.
KERR, District Judge.
The primary question here is whether losses sustained by taxpayer in 1950, resulting from trading in commodities and commodity futures, were capital losses within the meaning of the term defined by Section 117(a) (1) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 117(a) (1).
The taxpayer by this action seeks to recover payments made by him upon his 1950 income tax which he claims to have been illegally assessed.
Flora, the taxpayer, is a partner in the Flora Engineering Company. In its partnership return of income for 1950 it claimed as ordinary loss the amount of $85,216.10 growing out of transactions in commodities and commodity futures during that year. The loss so claimed was disallowed by the Bureau, thereby resulting in an additional income to taxpayer in the amount of $42,608.05. On March 27, 1953, a deficiency assessment was made against the taxpayer in the amount of $27,251.13. Taxpayer paid the sum of $5,058.54 on said deficiency assessment and this action has for its purpose the recovery of said sum so paid.
The government filed a motion to dismiss this action and as a basis therefor alleged that this Court was without jurisdiction to hear and determine the matter as the complaint showed conclusively on its face that the taxpayer has not paid the full amount of the tax deficiency assessed against him.
Historically, it has been the established policy of our tax system for the taxpayer to pay first and litigate afterwards. This is the method of corrective justice consistently followed by the lower courts since the decision of Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561. Recently, however, in the case of Bushmiaer v. United States, 8 Cir., 230 F.2d 146, at page 149, the Court held: "There is no provision in the revenue act specifically requiring the taxpayer to pay the full amount of the additional assessment unless that may be inferred from the provision requiring the taxpayer as a condition precedent to his right to maintain a civil action in the District Court to file a claim for refund." The court in reversing the decision of the trial court allowed suit to be maintained where the taxpayer paid the sum of $5,000 on an assessment of $137,987.28.
The Bushmiaer case is in direct conflict with Suhr v. United States, 3 Cir., 18 F.2d 81, at page 83, where the court stated:
"None of the various tax acts provide for recourse to the courts by a taxpayer until he has failed to get relief from the proper administrative body or has paid all the taxes assessed against him. The payment of a part does not confer jurisdiction upon the courts. Blair v. United States ex rel. Birkenstock, supra [271 U.S. 348, 46 S.Ct. 506, 70 L.Ed. 983]."
It is important to note that in the Cheatham case the court said, 92 U.S. at page 88:
"So also, in the internal-revenue department, the statute which we have copied allows appeals from the assessor to the commissioner of internal revenue; and, if dissatisfied with his decision, on paying the tax the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay.
"It will be readily conceded, from what we have here stated, that the *604 government has the right to prescribe the conditions on which it will subject itself to the judgment of the courts in the collection of its revenues."
And again, 92 U.S. at page 89:
* * * "It is essential to the honor and orderly conduct of the government that its taxes should be promptly paid, and drawbacks speedily adjusted; and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. * * * He can, if the decision is delayed beyond twelve months, rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period."
It will be noted that the Court refers to paying "the tax" as a prerequisite to suit for recovery. It contemplates a payment of the entire tax assessed and not a token payment for the purpose of obtaining a judicial determination of the unpaid balance prior to the payment of the same.
This principle has been consistently approved by the Supreme Court in the following cases: Kings County Savings Institution v. Blair, 116 U.S. 200, 6 S.Ct. 353, 29 L.Ed. 657; Dodge v. Osborn, 240 U.S. 118, 36 S.Ct. 275, 60 L.Ed. 557; Graham v. Du Pont, 262 U.S. 234, 43 S.Ct. 567, 67 L.Ed. 965; Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289; United States v. Jefferson Electric Mfg. Co., 291 U.S. 386, 54 S.Ct. 443, 78 L.Ed. 859; Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248.
In 1924 Congress recognized the hardships imposed on taxpayers in being required to pay the tax assessed as a condition precedent to bringing a suit for recovery of the same and established the Board of Tax Appeals (now the United States Tax Court). The Board of Tax Appeals was set up as a place where the validity of an income tax assessment could be litigated prior to the payment of the deficiency assessment. It is important to quote the precise language of the House Committee on Ways and Means when it created the Board of Tax Appeals:
"(H. Rep. No. 179, 68th Cong., 1st Sess., pp. 7-8 (1939-1 Cum.Bull. (Part 2) 241, 246-247)):
"The committee recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excess-profits, war-profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination of the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in non-liquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment."
I have carefully considered the decisions respecting the rights of the taxpayer and it is my reasoned judgment that since the complaint shows on its face that the plaintiff has not paid the entire tax assessment he should not maintain the instant suit. However, since the Third and Eighth Circuits are in conflict on the subject and this Circuit has not had occasion to pass on the matter I deem it advisable to pass upon the merits of the case as the record consists *605 only of a stipulation of facts and a few pages of testimony.
The facts are not in serious dispute, if in dispute at all. The Flora Engineering Company is a family partnership and was formed to engage in the business of engineering and farming; in 1950 the taxpayer acquired seats on both the Chicago Board of Trade and the New Orleans Exchange; the seats were owned by the plaintiff and not by the partnership; taxpayer's trading on these exchanges was done for his own account or for the account of the partnership; he testified that during 1950 he spent 60% to 70% of his time on the floors of these exchanges.
During the year 1950 his total volume of trading in commodity futures was $16,940,000; his total volume of trading in actual commodities for the same year was $322,000; that there were 397 transactions.
He further testified that he maintained an office in Denver, Colorado, in the name of the Flora Engineering Company; that he contacted people by telephone from his office in an attempt to sell actual commodities to them or in some cases people contacted him at his office in an attempt to buy actual commodities.
He did not maintain a board in his office for quoting prices of commodities or commodity futures; neither did he advertise or employ salesmen or customers' men; that his dealings in both commodities and commodity futures were of a speculative nature; that during 1950 he was not engaged in farming, manufacturing, or other activity which would require the use of commodities purchased and sold.
With this evidence in mind I shall try to square the facts in line with decided cases.
Taxpayer has placed some emphasis on Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 76 S.Ct. 20, 23. As I read that opinion the Corn Products was a manufacturer of products made from grain, viz: starch, syrup, sugar and by-products, feed and oil. In substance Mr. Justice Clark stated: * * * "it is difficult to imagine a program more closely geared to a company's manufacturing enterprise or more important to its successful operation." The officers testified in that case that the company was trying to protect a part of its manufacturing cost to fill an actual need for the quantity of corn purchased in order to cover a market over a period of fifteen or eighteen months. I do not think that the Corn Products case is in point.
A rather exhaustive discussion on this subject, together with an interpretation of the revenue act involved can be found in Commissioner of Internal Revenue v. Covington, 5 Cir., 120 F.2d 768. Further light is shed on this subject by the concurring opinion of Judge Holmes. He stated, 120 F.2d at page 771:
"Transactions in commodity futures are commonly spoken of as purchases and sales of a specific commodity such as corn, wheat, or cotton, but the traders really acquire rights to the specific commodity rather than the commodity itself. These rights are intangible property which may appreciate or depreciate in value. They are capital assets held by the taxpayer (whether or not connected with his trade or business), but, unless they are hedges (which are in a class by themselves), they cannot be regarded as stock in trade or other property of a kind which would properly be included in the inventories of the taxpayer if on hand at the close of the taxable year. Neither are they property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business."
The taxpayer's primary interest during 1950 was trading in commodity futures. His greatest volume was in futures. I think his case comes clearly within the rule laid down in Faroll v. Jarecki, 7 Cir., 231 F.2d 281. During the year of 1943 Faroll, the taxpayer, in more than ten thousand separate transactions, personally purchased and *606 sold as principal on his own account commodity futures involving almost eighty-one million bushels of grain at prices amounting in the aggregate to more than $84,000,000. He averaged at a minimum 41 separate transactions and $340,000 per day. He devoted all of his time to the business of buying and selling in futures. His losses for the year were $136,421.59. The only persons permitted to buy and sell commodity futures on the floor of the Exchange in 1943 and both prior and subsequent thereto were members thereof. Faroll made all his commodity future purchases from other members of the exchange and he made all his sales of commodity futures to other members of the exchange.
On the above evidence the trial court held that the sales were made in the ordinary course of the taxpayer's trade or business. In reversing the decision of the trial court Judge Finnegan stated, 231 F.2d at pages 287-288:
"From the stipulated activities and description of the Board of Trade's operations, we would have to ignore the realities of the market place, to hold otherwise than that Faroll's losses resulted from declines and advances in prices in the market, Chicago Board of Trade, where he daily bought and sold commodity futures on his own behalf. To say all businesses contain an element of speculation is not an answer here. Life itself is a speculation. We also think the inter-member transactions in commodity futures operating in the `pit' are not, on these facts, sales to customers within the meaning of § 117(a) (1). Even capital assets, uncontroverted in such classification, may be sold to a customer or customers without losing preferential treatment under the Code. Indeed, frequently, that is the tax-wise juncture of realization to the holder of such assets.
* * * * *
"It is evident, and undisputed, that Faroll's transactions were not in the commodity itself. This significant aspect is also brought into further sharp relief by Hoffman's statement: `Future contracts should * * * be thought of as rights to the commodity rather than the commodity itself and in dealing in futures one is dealing not in the actual commodity but in claims on or contracts for the commodity.' Hoffman, Future Trading 111 (1932). We are aware that Mr. Justice Holmes, speaking for the majority in Board of Trade of City of Chicago v. Christie Grain & Stock Co., 1905, 198 U.S. 236, 250, 25 S.Ct. 637, 639, 49 L.Ed. 1031, where the legality of commodity futures traders was in issue, said: `A set-off is, in legal effect, a delivery. We speak only of the contracts made in the pits, because in them the members are principals.' Here our concern is not with legality of Faroll's transactions but rather the relations which commodity futures contracts bear to transactions in the actual commodity. Christie describes some of the activities at the Board of Trade, federal income tax law was not there involved."
I cannot distinguish the Faroll case from the situation in the case at bar. The fact that Flora did accept a few commodities and re-sold them to individuals other than fellow brokers does not operate to change the tax treatment of the losses incurred. The taxpayer has produced no authority and I have found none to support the proposition that losses from future trading should be afforded different tax treatment because losses from future trading were accompanied by losses from trading in actual commodities. The trading in actual commodities is a natural incident of future trading.
After a careful examination of the stipulation of facts, the evidence adduced and an exhaustive examination of the authorities I am impelled to hold the losses sustained by Flora were capital losses within the meaning of the term defined by Section 117(a) (1) of the *607 Internal Revenue Code of 1939. Accordingly plaintiff's prayer for judgment is denied.
Counsel will collaborate and prepare findings of fact and conclusions of law in conformity with this opinion and submit the same, together with judgment, within twenty days from and after the date of this opinion and the clerk will enter an order accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263487/ | 24 Cal.App.4th 1528 (1994)
30 Cal. Rptr.2d 478
THE PEOPLE, Plaintiff and Respondent,
v.
JOSE WALTER FRANCO, Defendant and Appellant.
Docket No. B063577.
Court of Appeals of California, Second District, Division Seven.
May 11, 1994.
*1532 COUNSEL
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka and Mitchell Keiter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS (Fred), J.
Convicted by jury of first degree murder (Pen. Code,[1] §§ 187, 12022, subd. (a)(1)) and sentenced to state prison for 26 years to life, appellant contends prosecutorial misconduct, instructional errors, and an abuse of sentencing discretion require a reversal of the judgment. We find no error and affirm.
PROCEDURAL BACKGROUND
Jose Walter Franco (appellant), George Farias, and Augustine Gallardo were charged with the October 15, 1989, murder of Luis Arevalo. It was alleged that Gallardo used a firearm, a.22-caliber rifle, in the commission of the murder (§ 12022.5) and the codefendants were principals in its use (§ 12022, subd. (a)(1)).
Prior to trial, on September 6, 1990, Farias pleaded guilty to voluntary manslaughter. Trial of appellant and Gallardo began November 19, 1990, but on November 29, still during jury selection, the proceedings were continued to December 10. On December 10, Gallardo pleaded guilty to second degree murder. The trial of appellant resumed but on December 13, 1990, was continued until January 14, 1991. There were other trial interruptions. Testimony concluded February 13, 1991, jury instruction began February 19, and jury deliberation commenced February 21. On February 28, 1991, the jury found appellant guilty of first degree murder and found true the firearm allegation (§ 12022, subd. (a)(1)). On June 11, 1991, appellant's new trial motion was denied and he was referred to the Youth Authority for evaluation (Welf. & Inst. Code, § 707.2). On September 22, 1991, appellant was sentenced to a 26-years-to-life state prison term, to be housed at the Youth Authority. (Welf. & Inst. Code, § 1731.5, subd. (c)). This appeal followed.
*1533 FACTUAL BACKGROUND
There being no insufficiency of evidence claim, we summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal. Rptr. 228, 721 P.2d 110].)
In 1989 two East Los Angeles gangs, the 39th Street Gang and the 36th Street Gang, had a history of animosity. Their claimed territories were adjacent and their members knew each other. Both gangs marked their turf by writing their gang name and members' names on walls.
Luis Arevalo (the victim), called "Dreamer," was 14 years old and a member of 36th. Appellant, 17 years old, was a member of 39th. Appellant had associated with members of 39th for years and when he was 15 years old became a member. He didn't get along with any members of 36th.
The victim, like many gang members, had his name (Dreamer) on walls in 36th territory. About three months before his death someone circled his name. This signified he was going to be killed.
About a month before the victim's death, appellant met a 36th gang member, Droopy, at a party. The next day Droopy telephoned appellant and proposed a peace treaty between the two gangs. Appellant informed senior 39th members who called a meeting and agreed to the peace treaty. According to the treaty, the gangs were not to disrespect each other and were to avoid each others' territory.
Within a month the treaty was broken. Thirty-sixth members beat up a 39th member, Little Bird, and showed disrespect by crossing out his name. Appellant telephoned Droopy and informed him all members of 39th were mad because of these incidents.
Several occurrences caused appellant to dislike Dreamer. At a party, Dreamer had bumped into appellant's shoulder. After that, at school, Dreamer had told appellant's younger sister, Claudia, that "they couldn't catch [appellant] ... [and] that he was going to fuck her up...." Dreamer then pushed her. Then about two days before Dreamer was killed, a 36th member bumped Claudia and spit on her.
On Saturday, October 14, 1989, 39th members attended a party at 39th Street and Grand. Adults, nongang members, were having the party inside but had invited 39th members who congregated outside by the street. Bird, a 39th member, told other 39th members he had heard 36th was going to do a *1534 "drive-by"[2] at the party. In the early evening, two 36th members, Rascal and Gizmo, arrived and were ordered by Bird, who had a rifle, to leave.
About 10 p.m. appellant, Gallardo (a 39th member), and Farias, Gallardo's cousin who lived in San Bernardino, arrived at the party. They arrived in Gallardo's parents' station wagon, which Farias drove. Bird told them about the Rascal-Gizmo intrusion.
Bird, who lived in the "party" building, went inside, returned with a .22-caliber semiautomatic rifle with a sawed-off stock, and showed it to the others. Gallardo took possession of the rifle. Appellant, Gallardo, and Bird said "Let's go do a drive-by." The three of them, with Farias driving, drove into 36th territory.
At 36th Street and Maple, Osvaldo Miranda, a 36th member, was walking with his mother and aunts when a station wagon slowed beside him. The front passenger (Gallardo) who had something in his hands, said "39th Street." Miranda thought he was going to be shot. The station wagon drove on. Gallardo didn't shoot Miranda "because [he] was walking with grown ladies."
Appellant, Gallardo, Bird, and Farias returned to the party. About 15 minutes later a car drove by with the front passenger leaning out the window "throwing" gang signs.[3] Appellant "screamed `That's Dreamer, that's Dreamer.'"
Appellant and the others didn't pursue Dreamer because a police car appeared.
Sometime after midnight, October 15, appellant, Gallardo, and Farias left the party. Gallardo, with the rifle, sat in the rear because that window opened more readily. Farias drove and appellant sat in front. As they approached 40th Place appellant told Farias to turn. Appellant knew Dreamer lived on 40th Place and hoped to see him, to "surprise" him.
Midblock, appellant saw someone walking toward their car and as they passed him appellant yelled, "That's Dreamer." Farias stopped the car. Gallardo, head first, holding the rifle, crawled half out the window, sat on the sill, and over the roof pointed the rifle at the victim, said "Fuck 36th," pulled the trigger, noticed the safety was on, released it, fired, hit the victim in the leg, saw the victim fall holding his leg and trying to cover himself, and *1535 continued firing the remaining seven or eight rounds. Two were fatal: one to the chest, another to the head.
When Farias sped from the scene, appellant told him to slow down otherwise they'd attract police attention. They went to Gallardo's house where Gallardo removed the clip and put the rifle under his bed. He handed the clip and bullets to appellant who reloaded the clip. Appellant went home. Later, about noon, appellant told a fellow 39th member (Gerardo Zambrano) "they" had killed Dreamer.
The rifle, which Gallardo sold, was not recovered.
The police arrested appellant, Gallardo, and Farias. Each gave tape-recorded statements and signed statement summaries.
DISCUSSION
1. Appellant contends prosecutorial misconduct denied him a fair trial.
(1) Appellant asserts prosecutorial misconduct first occurred during juror voir dire when the prosecutor stated: "I think we can all pretty much admit that there is a tremendous gang problem in Los Angeles County, there is a lot of violence. [¶] There is not a day that goes by that you don't open up the Metro Section and read about some senseless drive-by shooting."
Defense counsel objected to this statement and the trial court admonished the jury that this was not what appellant was charged with.
Although we do not commend the remark, we cannot, in context, condemn it as misconduct.
A jury questionnaire had asked numerous questions concerning gangs: whether prospective jurors were familiar with them, knew members, had themselves belonged, etc. And defense counsel, before the prosecutor made the subject remark, had commented about publicized shootings and killings of innocent people, had stated "all ... of us have heard a lot of publicity about shootings, drive-bys ... gangs," had referred to a "gang type situation," and represented that appellant may be a member of a gang.
The subject remark largely repeated defense counsel comments and stated what is common knowledge. Moreover, any potential prejudice was cured by the trial court's admonition.
(2) Appellant argues prosecutorial misconduct next occurred, also during jury voir dire, when the prosecutor reacted to a prospective juror's *1536 statement that she knew an Officer Ken Bell. The prosecutor stated "It's a small world" because "I work with the District Attorney's Hardcore Gang Division" and have contact with Officer Bell. The prosecutor indicated it was possible Officer Bell could be a witness and questioned the juror about whether, in that event, she could be impartial in assessing his credibility. The prospective juror was later excused.
Although inappropriate, this unelaborated reference to the hardcore gang division did not deprive appellant of a fair trial. The comment was addressed to a prospective juror who did not sit on the jury, was made months before jury deliberations began, was neither repeated nor elaborated upon, was not inflammatory and if not common knowledge (that such specialized units exist), was hardly startling.
(3) Finally, appellant contends prosecutorial misconduct occurred during jury argument when the prosecutor referred to appellant as a "hard-core experienced sophisticated gang member." We disagree.
As to appellant being a gang member, not only did prosecution witnesses so testify but appellant, during his testimony, stated he had been a member of the 39th Street Gang for one and a half years and had associated with its members for years before that. He further testified to helping negotiate a peace treaty on behalf of his gang, being willing to "back up" members of his gang, disliking all members of a rival gang, frequently going target shooting with other gang members, and calmly telling Farias to slow down after the victim had been shot.
For a prosecutor, during argument, to characterize such a gang member as "hard-core," "experienced," and "sophisticated" did not exceed the bounds of vigorous and fair argument. (People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [254 Cal. Rptr. 586, 766 P.2d 1] [the prosecutor referred to the defendant as a "contract killer," "a snake in the jungle," "slick," "tricky," a "pathological liar," and "one of the greatest liars in the history of Fresno County"].)
2. Appellant contends the trial court erred in giving an unmodified accomplice instruction (CALJIC No. 3.18).
Because the prosecutor called Gallardo as a witness and the defense called Farias, the trial court gave a series of accomplice instructions to the jury. (CALJIC Nos. 3.10 [Accomplice Defined], 3.11 [Testimony of Accomplice Must Be Corroborated], 3.12 [Sufficiency Of Evidence To Corroborate An Accomplice], 3.13 [One Accomplice May Not Corroborate Another], *1537 3.16 [Witness Accomplice As A Matter Of Law], and 3.18 [Testimony Of Accomplice To Be Viewed With Distrust].)
Appellant faults only one accomplice instruction, CALJIC No. 3.18, which reads: "The testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case."
Appellant does not argue that the trial court should have entirely omitted CALJIC No. 3.18. He apparently concedes that because the prosecutor called Gallardo, an accomplice as a matter of law, who, in part, gave damaging testimony against appellant, the trial court had a sua sponte duty to give No. 3.18. (People v. Belton (1979) 23 Cal.3d 516 [153 Cal. Rptr. 195, 591 P.2d 485].)
(4) Instead, appellant, who did not object to the trial court's giving CALJIC No. 3.18, argues the trial court had a sua sponte duty to modify No. 3.18 as follows: "The testimony of an accomplice which tends to incriminate the defendant ought to be viewed with distrust." Appellant relies on People v. Flanders (1979) 89 Cal. App.3d 634 [152 Cal. Rptr. 696] and People v. Graham (1978) 83 Cal. App.3d 736 [149 Cal. Rptr. 6]. Neither supports appellant's contention.
In Flanders the defendant was charged with robbing a victim of his wallet and assaulting him. The prosecution called defendant's confederate, Anderson, who had pleaded guilty to assaulting the victim. Anderson gave both favorable testimony (only he, not defendant, assaulted the victim) and unfavorable testimony (he didn't take the victim's wallet and defendant was present during the assault). The defense was alibi.
The trial court, without objection by defendant, gave modified accomplice instructions (the testimony of an accomplice which tends to incriminate the defendant should be viewed with distrust). Despite the modification, defendant claimed the accomplice instructions were error. In rejecting this contention Flanders stated: "The testimony and prior statement of the accomplice had two natures, one incriminating (which appellant would like to be viewed with distrust), and one exonerating (which appellant would like the jury to believe). If appellant believed that additional instructions were necessary to separate or clarify the jury's duties with regard to these two aspects, he was required to make known his views to the trial court. From appellant's failure to object or request other instructions, we can only conclude he felt that in *1538 this respect the instruction given, which limited the view with distrust to that portion of the testimony or prior statement `which tends to incriminate the defendant,' was acceptable to him. In this type of situation, he may not now urge that it was inadequate." (People v. Flanders, supra, 89 Cal. App.3d at p. 640.)
In People v. Graham, supra, 83 Cal. App.3d 736, although the prosecutor called an accomplice, her testimony was entirely favorable to the defendant. She testified, consistent with the defense, that the victim was shot during a struggle for the rifle, not while fleeing, as the prosecution urged. In such circumstances it was error, Graham held, to instruct the jury they must view the accomplice testimony with distrust. (Id. at p. 744.) But the error was found harmless (ibid.) and Graham observed, in connection with another instruction, "We note that `[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'" (Id. at p. 742, fn. 3.)
Unlike Graham, the testimony (and prior statements) of Gallardo and Farias were partly favorable and partly unfavorable to appellant.
Apposite is People v. Miller (1960) 185 Cal. App.2d 59 [8 Cal. Rptr. 91] where the prosecutor called an accomplice and then the defendant called the same accomplice. The trial court gave the "view with distrust" instruction without objection by defendant. On appeal, defendant claimed error. Miller rejected the claim, stating: "[T]o permit the defendant in this case to claim error in the giving of the instruction under consideration would pervert the purposes of justice. Under the authorities heretofore noted and the circumstances of this case, a failure to give that instruction would have been error. It was given for the benefit and protection of the defendant. If this benefit was outweighed by a disadvantage attributable to the fact that the witness was called by him, as well as by the People, he should have informed the trial court of his wishes in the premises, i.e., whether to accept or reject the instruction. If the allegedly objectionable instruction had not been given, it is more than likely that the defendant would now be complaining because of such failure. He may not sit silently during the course of his trial; create a situation which may be to his advantage or disadvantage and require the court to make an election on his behalf without being bound by that election. He must make his own election and advise the court thereof by requesting an instruction acceptable to him, or in some other appropriate manner. To proceed otherwise is to require the court to choose one of two alleged evils and reserve to the defendant the right to claim error irrespective of the choice made. This does not comport with justice. Analogous applicable principles of law are found in the rules which foreclose a consideration of *1539 invited error ...; require a party to make his election of remedies...; or support a waiver or estoppel based on conduct." (Id. at pp. 83-84, citations omitted.)
The Supreme Court recently approved this statement in Miller observing: "A comparable situation exists when an alleged accomplice testifies as a prosecution witness and then again as a defense witness, giving testimony favorable to both the prosecution and the defense, so that an instruction to view the witness's testimony with caution could be either beneficial or harmful to the defendant. In such cases, contrary to the general rule that a jury instruction may be challenged on appeal even though no objection was raised at trial (§§ 1259; 1469; People v. Hannon (1977) 19 Cal.3d 588, 600 [138 Cal. Rptr. 885, 564 P.2d 1203]), an objection to a cautionary instruction has been required before the defendant may assert error on appeal because a defendant `may not sit silently during the course of his trial; create a situation which may be to his advantage or disadvantage and require the court to make an election on his behalf without being bound by that election.' (People v. Miller (1960) 185 Cal. App.2d 59, 84 [8 Cal. Rptr. 91]; see also People v. Flanders (1979) 89 Cal. App.3d 634, 640 [152 Cal. Rptr. 696].)" (People v. Toro (1989) 47 Cal.3d 966, 975 [254 Cal. Rptr. 811, 766 P.2d 577].)
In accordance with Miller and Toro, we hold that it was incumbent upon appellant to object to the cautionary instruction (CALJIC No. 3.18) in the trial court in order to claim error on appeal.[4]
3. Appellant contends the trial court erred in refusing to give voluntary manslaughter instructions.
(5) Appellant asserts voluntary manslaughter instructions are required when there is any evidence of honest but unreasonable self-defense. (People v. Flannel (1979) 25 Cal.3d 668 [160 Cal. Rptr. 84, 603 P.2d 1].) He contends the trial court erred in refusing such instructions because there was such evidence, regardless of how weak. Appellant is mistaken in both parts of his argument.
People v. Flannel explicitly disapproved the "any evidence" test for jury instructions. It stated: "Many cases cite, often without elaboration, language in Carmen, supra, 36 Cal.2d 768, or in People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal. Rptr. 225, 382 P.2d 33], to the effect that jury instructions must be given whenever any evidence is presented, no matter how weak. To *1540 the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved." (People v. Flannel, supra, 25 Cal.3d 668, 684-685, fn. 12.) Since Flannel, our Supreme Court has consistently held "[a] trial court need only give those requested instructions supported by evidence that is substantial." (People v. Bacigalupo (1991) 1 Cal.4th 103, 125 [2 Cal. Rptr.2d 335, 820 P.2d 559]; People v. Jackson (1980) 28 Cal.3d 264, 305 [168 Cal. Rptr. 603, 618 P.2d 149].)
The "any evidence" relied upon by appellant consists of this testimony by Gallardo:
"[Defense counsel] Q. Now, I have a real serious question for you.
"Why is it that you fired at Dreamer, who apparently did nothing to you either?
"What made you fire at him?
"A. When I was on top of the window sill, I saw him move his right hand in an upper motion, and that's when I started to fire.
"Q. What did you think he was going to do?
"A. Shoot at me.
"Q. Did you see something in his hand?
"A. I couldn't see. It was too far.
"Q. I can't hear you. What?
"A. It was too far.
"Q. But he moved his hand?
"A. Yes.
"Q. Did you ever tell the police that?
"A. No."
This testimony did not amount to substantial evidence requiring voluntary manslaughter instructions because there was undisputed evidence of the *1541 following: (1) appellant and Gallardo were "looking" for Dreamer (the victim); (2) before any hand movement by the victim, Gallardo had crawled half out of the window, sat on the sill, and over the roof pointed the rifle at the victim and shouted "Fuck 36th"; (3) when Gallardo first shot the victim, the victim "took a step forward, and [his] hand, right hand went like in an upper motion when I pulled the trigger" (italics added); (4) the first, nonfatal shot struck the victim in the leg; the victim fell, clutching his leg and covered himself; and (5) thereafter, the fatal shots to the victim's chest and head were fired.
If the victim made a hand movement it occurred after Gallardo pointed a rifle at him and shouted "Fuck 36th." Under such circumstances the "hand movement" cannot be relied upon for a Flannel defense. (See People v. Jackson, supra, 28 Cal.3d 264, 305-306; People v. Williams (1977) 75 Cal. App.3d 731, 740 [142 Cal. Rptr. 704].) Additionally, Gallardo did not claim he acted in fear when after the victim had fallen, was clutching his leg, and trying to cover himself he fired the two fatal shots.
The trial court properly refused voluntary manslaughter instructions.
4. Appellant contends the trial court erred in refusing to instruct the jury to view with caution his oral admissions.
(6) A trial court must instruct a jury to view with caution evidence of an oral admission. (People v. Beagle (1972) 6 Cal.3d 441, 455 [99 Cal. Rptr. 313, 492 P.2d 1]; People v. Stankewitz (1990) 51 Cal.3d 72, 94 [270 Cal. Rptr. 817, 793 P.2d 23].) But the instruction should not be given if the oral admission was tape-recorded. (People v. Hines (1964) 61 Cal.2d 164, 173 [37 Cal. Rptr. 622, 390 P.2d 398], overruled on other grounds by People v. Murtishaw (1981) 29 Cal.3d 733, 774-775, fn. 40 [175 Cal. Rptr. 738, 631 P.2d 446].)
Appellant's statements to the investigating officers, made during an approximately one-hour interview, were tape-recorded and admitted into evidence. Accordingly, they were not subject to a "view with caution" instruction.
(7) But appellant contends there was other, non-tape-recorded, evidence of his admissions which required the "view with caution" instructions (CALJIC Nos. 2.70, 2.71). Two statements are cited: "Let's do a drive-by" and "We just shot Dreamer."
*1542 Assuming these statements required a "view with caution" instruction[5] we find the omission harmless. As to the first statement ("Let's do a drive-by") the evidence was contradictory and equivocal concerning who made the statement. Gallardo first testified "someone" made the statement and later testified he, not appellant, made the statement. Gerardo Zambrano testified "they" (appellant, Gallardo, Farias, and Bird) made the statement. Moreover, appellant conceded that others said they wanted to go to 36th (enemy territory) and he knew Gallardo had the rifle but he accompanied them anyhow.
As to the second statement ("We just shot Dreamer"), appellant conceded he told people "Dreamer was shot" but denied saying "We shot Dreamer." It is unlikely, even if they believed he made the statement, the jury would have attributed much significance to it. Alone, it conveyed little more than that he, Farias, and Gallardo were together in a car when one of them (Gallardo) shot Dreamer. It was appellant's preshooting statements and conduct that inculpated him.
Moreover, "`The omission ... does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.' ... Especially in view of the fact that, in substance, the jurors were properly instructed as to how they should treat the testimony of an accomplice, a more favorable result was not reasonably probable here absent the error." (People v. Williams (1988) 45 Cal.3d 1268, 1315 [248 Cal. Rptr. 834, 756 P.2d 221] [citation omitted]; People v. Stankewitz, supra, 51 Cal.3d 72, 94.)
5. Appellant contends the trial court abused its discretion in not committing him to the Youth Authority.
(8) Following an evaluation by the Youth Authority (Welf. & Inst. Code, § 707.2) the trial court (Superior Court Judge Cecil J. Mills) rejected the commitment to Youth Authority recommendation and sentenced appellant to state prison, although to be housed at the Youth Authority (Welf. & Inst. Code, § 1731.5, subd. (c)). Appellant contends the trial court abused its discretion in not committing him to the Youth Authority. Appellant is mistaken.
"Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not *1543 be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316 [228 Cal. Rptr. 197, 721 P.2d 79], original italics.)
There was no "manifest miscarriage of justice." The sentencing court expressly and carefully considered the Youth Authority report and its recommendation and the statutory considerations[6] for its sentence. We find no error. (See People v. Jones (1988) 46 Cal.3d 585, 600-603 [250 Cal. Rptr. 635, 758 P.2d 1165]; People v. Prothro (1989) 215 Cal. App.3d 166, 169-172 [263 Cal. Rptr. 433].)
DISPOSITION
The judgment is affirmed.
Lillie, P.J., and Johnson, J., concurred.
Appellant's petition for review by the Supreme Court was denied August 10, 1994.
NOTES
[1] Statutory references, unless otherwise noted, are to the Penal Code.
[2] I.e., while passing by in a car, shoot at 39th members.
[3] Gerardo Zambrano testified throwing gang signs constitutes a challenge.
[4] Had there been error, it would have been harmless. (See People v. Graham, supra, 83 Cal. App.3d pp. 744-745 and fn. 6.)
[5] The tape recording of appellant's statements to the investigating officers was not transcribed, nor played during trial, nor reported. Although admitted into evidence (exhibit A) the record on appeal does not reflect whether or not the jury, during deliberations, played the tape (they did inquire about it). The tape has not been included as part of the record on appeal.
[6] In pertinent part, Welfare and Institutions Code section 707.2 reads: "The need to protect society, the nature and seriousness of the offense, the interests of justice, the suitability of the minor to the training and treatment offered by the Youth Authority, and the needs of the minor shall be the primary considerations in the court's determination of the appropriate disposition for the minor." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1067797/ | 474 S.E.2d 860 (1996)
23 Va. App. 161
Scott Allen CHARLES
v.
COMMONWEALTH of Virginia.
Record No. 2180-94-2.
Court of Appeals of Virginia, Richmond.
September 10, 1996.
G. Barton Chucker, Richmond (Chucker & Reibach, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present MOON, C.J., and BAKER, BENTON, COLEMAN, WILLIS, ELDER, BRAY, FITZPATRICK and OVERTON, JJ.
ELDER, Judge.
Scott Allen Charles (appellant) appeals his conviction for operating a motor vehicle after illegally consuming alcohol under the age of twenty-one, in violation of Code § 18.2-266.1. Appellant contends: (1) the trial court erred in finding that his blood alcohol test, administered one hour after his arrest, established a presumption of his blood alcohol content when he was operating his motor vehicle; (2) the trial court improperly denied his proffer of evidence meant to explain why he performed poorly on field sobriety tests; and (3) the General Assembly's use of the words "illegally consuming alcohol" in Code § 18.2-266.1(A) required the Commonwealth to *861 prove the source of the alcohol he consumed. Because the trial court committed no error, we affirm appellant's conviction.
I.
FACTS
On July 23, 1994, at 2:14 a.m., Deputy W.P. Jones of the Amelia County Sheriff's Office stopped a vehicle driven by appellant. The stop occurred at an administrative roadblock. Appellant admitted that he had consumed two beers and was under age twenty-one. Appellant did not state when he had consumed the alcohol or disclose the source of the alcohol he had obtained. Jones arrested appellant for operating a motor vehicle after illegally consuming alcohol under age twenty-one. Appellant did not pass the field sobriety tests administered by Jones. At least one hour after being arrested, appellant underwent a blood alcohol test. The Commonwealth introduced the certificate of analysis, which showed that appellant's blood alcohol level registered at .02 percent at the time the test was administered.
Appellant was tried in the Circuit Court of Amelia County on October 5, 1994, for violating Code § 18.2-266.1. Appellant argued that the Commonwealth had to introduce evidence that his blood alcohol level was .02 percent at the time he operated his vehicle. The trial court rejected this argument. The trial court also refused to allow appellant to proffer evidence as to why he failed his field sobriety tests, reasoning that such evidence was irrelevant in light of the statutory language. The trial court also ruled that the Commonwealth did not need to prove that the alcohol was consumed illegally. The trial court found appellant guilty as charged.
II.
PRESUMPTION OF ALCOHOL CONCENTRATION
Appellant argues that the trial court erred in applying a presumption that his blood alcohol level one hour after operating the vehicle was the same as when he operated the vehicle. We disagree.
Neither this Court nor the Supreme Court has addressed the issue of whether Code § 18.2-266.1 creates a rebuttable presumption that a defendant's blood alcohol content while driving was the same as indicated by the results of a subsequently administered test. However, based on Davis v. Commonwealth, 8 Va.App. 291, 381 S.E.2d 11 (1989), and its progeny, we hold that Code § 18.2-266.1 creates such a presumption. Code §§ 18.2-266.1[1] and 18.2-266(i),[2] which contain similar language, each make it "unlawful" for a driver to operate a motor vehicle while the driver's blood alcohol content is at or above a certain level. In Davis, this Court held that Code § 18.2-266(i) creates a rebuttable presumption "that the blood alcohol concentration while driving was the same as indicated by the results of the subsequent test." 8 Va.App. at 300, 381 S.E.2d at 16. See also Lemond v. Commonwealth, 19 Va. App. 687, 692, 454 S.E.2d 31, 34 (1995); Kehl v. Commonwealth, 15 Va.App. 602, 605, 426 S.E.2d 127, 129 (1993). We hold that this logic applies with equal force to Code § 18.2-266.1.[3]
*862 III.
PROFFER OF EVIDENCE
As this Court has stated in cases involving prosecutions under Code § 18.2-266(i), a defendant may rebut the presumption that the blood alcohol concentration measurement accurately reflected the defendant's blood alcohol concentration at the time of driving. Commonwealth v. Ayers, 17 Va.App. 401, 404, 437 S.E.2d 580, 582 (1993); Lemond, 19 Va.App. at 693, 454 S.E.2d at 35. Thus, in cases involving prosecutions under Code § 18.2-266.1, "[a] defendant... may introduce evidence to show that, despite his blood alcohol concentration of at least 0.10 percent on a subsequently administered test, his blood alcohol concentration at the time of driving was less than 0.10 percent." Ayers, 17 Va.App. at 404, 437 S.E.2d at 582. A defendant "may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results." Davis, 8 Va.App. at 300, 381 S.E.2d at 16. However, evidence tending to prove that the defendant was not under the influence, such as adequate performance on field sobriety tests, is irrelevant and inadmissible. Id. In this case, therefore, the trial court did not err in refusing to allow appellant to explain his physical condition and his poor performance on the field sobriety tests.
IV.
PROOF OF "ILLEGAL CONSUMPTION"
For the reasons stated in Mejia v. Commonwealth, 23 Va.App. 173, 474 S.E.2d 866 (1996) (en banc), we hold that the trial court did not err in denying appellant's motion to strike the evidence, which was grounded on the Commonwealth's failure to prove that his consumption of alcohol was illegal.
Based on the foregoing, we affirm appellant's conviction.
Affirmed.
BENTON, Judge, dissenting.
For the reasons stated in my dissent to Davis v. Commonwealth, 8 Va.App. 291, 381 S.E.2d 11 (1989), I would hold that Code § 18.2-266.1 does not create a presumption "that the blood alcohol concentration while driving was the same as indicated by the results of the subsequent test." 8 Va.App. at 300, 381 S.E.2d at 16. Until the General Assembly enacts a rebuttable presumption for Code § 18.2-266.1, "I find nothing in either the text or logic of [Code § 18.2-266.1] that leads me to conclude the General Assembly intended anything other than that guilt would be proved beyond a reasonable doubt according to the normal processes of human reasoning and experience." Id. at 303, 381 S.E.2d at 17-18 (Benton, J., dissenting).
Because I do not believe Code § 18.2-266.1 creates a rebuttable presumption, I would find the trial judge erred in barring evidence of Charles' physical condition and performance on field sobriety tests. The Commonwealth administered the breathalyzer test an hour after the officer stopped Charles. During this one hour period, the level of Charles' intoxication may have fluctuated. Evidence of his physical condition at the time of the stop was probative of whether he operated the vehicle when his breath contained .02 grams or more of alcohol per 210 liters of breath. Where the statute bars a person from operating a vehicle with a certain bodily alcohol content and the test is not performed until after that person ceases to operate the vehicle, then evidence of the driver's physical condition may be probative of the driver's level of intoxication when operating the vehicle. Thus, I would also hold that the trial judge erred in refusing to admit the evidence *863 of Charles' physical condition. The statute does not create a rebuttable presumption regarding the scientifically measured alcohol level.
I dissent from Part IV for the reasons stated in my dissent to Mejia v. Commonwealth, 23 Va.App. 173, 474 S.E.2d 866 (1996)(en banc). Code § 18.2-266.1(A) requires the Commonwealth to prove the accused "illegally consum[ed] alcohol." The Commonwealth introduced no evidence concerning the circumstances of Charles' consumption of alcohol. Therefore, the evidence was insufficient to support a conviction.
Accordingly, I would reverse Charles' conviction.
NOTES
[1] Code § 18.2-266.1(A) states:
It shall be unlawful for any person under the age of twenty-one to operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article shall be in violation of this section.
[2] Code § 18.2-266 states "[i]t shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more...."
[3] Appellant also contends that Code § 18.2-269, entitled, "Presumptions from alcohol content of blood," applies to Code § 18.2-266(ii) but does not apply to Code § 18.2-266.1. While this assertion is accurate, it does not affect the issue at hand. Code § 18.2-266(ii) punishes offenders who drive under the influence of alcohol and utilizes Code § 18.2-269's presumptions to prove intoxication. In contrast, Code § 18.2-266.1 does not concern itself with offenders who drive under the influence. Instead, Code § 18.2-266.1 punishes offenders whose blood alcohol content measures between .02 and .08 percent. Therefore, we hold that Code § 18.2-269's presumptions are irrelevant to proving a violation of Code § 18.2-266.1. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1067810/ | 474 S.E.2d 863 (1996)
23 Va. App. 167
Alfred McKinley JONES
v.
CITY OF LYNCHBURG.
Record No. 1896-95-3.
Court of Appeals of Virginia, Richmond.
September 10, 1996.
*864 James B. Feinman, Lynchburg (James B. Feinman & Associates, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: BENTON, WILLIS and ELDER, JJ.
ELDER, Judge.
Alfred McKinley Jones (appellant) appeals his conviction for driving with a prohibited blood alcohol level, in violation of Lynchburg Code § 25-162. Appellant contends that the trial court erred in failing to dismiss the drunk driving charge as barred on double jeopardy and collateral estoppel grounds. Because the trial court did not err, we affirm appellant's conviction.
I.
FACTS
On April 8, 1995, a vehicle driven by appellant nearly struck another vehicle. Officer P.K. Redd of the Lynchburg Police Department arrived at the scene shortly thereafter. Appellant failed three field sobriety tests, and breathalyzer test results indicated that appellant's blood alcohol level was .20 percent.
Pursuant to Code § 46.2-391.2, upon appellant's arrest, his driver's license was suspended administratively for seven days. On April 12, 1995, appellant filed a motion for review of his administrative suspension. The Lynchburg General District Court held a hearing on the matter the same day, at which the Commonwealth chose not to appear. No police reports or other evidence on the Commonwealth's behalf were offered. After hearing appellant's testimony, the court rescinded the license suspension, finding that the police lacked probable cause to arrest appellant.
Despite the general district court's ruling that no probable cause existed for appellant's arrest, the City of Lynchburg prosecuted appellant in the general district court pursuant to Lynchburg Code § 25-162, which prohibits drunk driving. On May 2, 1995, appellant filed a motion to dismiss on grounds of acquittal, based on the ruling that there was no probable cause for his arrest. Appellant argued that the Commonwealth was collaterally estopped from proceeding on the related drunk driving charge and that the prosecution of the criminal charge was barred on double jeopardy grounds. The general district court overruled the motion and on May 3, 1995, convicted appellant of drunk driving.
After appealing his conviction to the circuit court, appellant again filed a motion to dismiss on grounds of acquittal. On August 8, 1995, the circuit court denied appellant's motion. The circuit court ruled that pursuant to Code § 46.2-391.2(C) the prior determination of no probable cause did not constitute a binding or final judgment upon which collateral estoppel could be based.[1] After appellant stipulated to the Commonwealth's evidence, the circuit court found appellant guilty of drunk driving.
II.
DOUBLE JEOPARDY & COLLATERAL ESTOPPEL
Appellant argues that his prosecution for drunk driving was constitutionally impermissible because the administrative license suspension proceeding was a criminal proceeding, and the double jeopardy protection of the Fifth Amendment of the United States Constitution barred a second prosecution. We disagree.
In Tench v. Commonwealth, 21 Va. App. 200, 204, 462 S.E.2d 922, 923-24 *865 (1995)(en banc), we held that an administrative license suspension is a civil penalty and does not constitute "punishment" for double jeopardy purposes. See United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). Here, pursuant to Code § 46.2-391.2(C), appellant timely requested the general district court to review the license suspension, and a hearing was held on the matter four days after the suspension. It follows logically from Tench that the district court's license suspension hearing was a civil proceeding. See, e.g., State v. Young, 249 Neb. 539, 544 N.W.2d 808, 811 (1996)(holding that an administrative license suspension hearing is civil); State v. Cassady, 140 N.H. 46, 662 A.2d 955, 958 (1995)(same); Walton v. State, 831 S.W.2d 488, 490 (Tex.Ct.App.1992)(same); People v. Moore, 138 Ill. 2d 162, 149 Ill. Dec. 278, 280, 561 N.E.2d 648, 650 (1990)(same). Therefore, because the license suspension proceeding "did not impose punishment within the meaning of the double jeopardy clause, [appellant] was not twice placed in jeopardy in violation of the United States Constitution when prosecuted for driving while intoxicated." Tench, 21 Va.App. at 208, 462 S.E.2d at 925.
"The doctrine of collateral estoppel in criminal cases ... means `that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.'" Rogers v. Commonwealth, 5 Va.App. 337, 341, 362 S.E.2d 752, 754 (1987)(quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970)). "The party seeking the protection of collateral estoppel carries the burden of showing that the verdict in the prior action necessarily decided the precise issue he seeks to now preclude." Rogers, 5 Va.App. at 341, 362 S.E.2d at 754. "[T]he doctrine of collateral estoppel is a constitutional requirement embodied in the fifth amendment protection against double jeopardy and is applicable to the states through the fourteenth amendment to the United States Constitution." Simon v. Commonwealth, 220 Va. 412, 415, 258 S.E.2d 567, 569 (1979).
Because the license suspension hearing was a civil proceeding, "[a]pplication of the doctrine of collateral estoppel is not constitutionally mandated." Cassady, 662 A.2d at 958 (holding that collateral estoppel did not prevent relitigation in a criminal proceeding of issues of fact previously decided in defendant's favor in an administrative hearing); Young, 544 N.W.2d at 812 (same); State v. Arnold, 593 So. 2d 1293 (La.Ct.App. 1991)(same), writ denied, 594 So. 2d 1305 (La. 1992); Moore, 149 Ill.Dec. at 282, 561 N.E.2d at 652. "Because the `issues of ultimate fact' in an administrative hearing held pursuant to [Code § 46.2-391.2] are different from those in a prosecution for the offense of driving while intoxicated, the doctrine of collateral estoppel does not bar ... [a] subsequent prosecution for driving while intoxicated." Walton, 831 S.W.2d at 490 (holding that administrative hearing to revoke defendant's license did not collaterally bar prosecution and did not violate double jeopardy).
Furthermore:
If we were to hold the doctrine of collateral estoppel applicable to later criminal proceedings, the [Commonwealth] would be forced to litigate thoroughly every fact at issue in an administrative license suspension proceeding. This would undermine the goal of providing informal and prompt review of a decision to suspend a driver's license.
Cassady, 662 A.2d at 958. See Young, 544 N.W.2d at 812; Moore, 149 Ill.Dec. at 282, 561 N.E.2d at 652. "From the [Commonwealth's] perspective, [an administrative] hearing is a minor matter where one would not expect the [Commonwealth] to prosecute the action vigorously[.]" State v. Gusman, 125 Idaho 805, 874 P.2d 1112, 1115 (1994). Also, because license suspension hearings are civil in nature, "the court may rely on law enforcement officers' official reports in the absence of the officers themselves." Moore, 149 Ill.Dec. at 280, 561 N.E.2d at 650; State v. Higa, 79 Hawai'i 1, 897 P.2d 928, 936 (1995); see Code § 46.2-391.2(B), (C).
For these reasons, we hold that the doctrines of double jeopardy and collateral estoppel *866 did not bar appellant's prosecution for drunk driving, and we affirm his conviction.
Affirmed.
BENTON, Judge, concurring.
I concur in the majority's holding that our decision in Tench v. Commonwealth, 21 Va. App. 200, 462 S.E.2d 922 (1995)(en banc) is dispositive of appellant's double jeopardy argument.
While I generally agree with most of the majority's discussion of collateral estoppel, I believe that the following language of Code § 46.2-391.2(C) is dispositive of the collateral estoppel issue:
The [general district] court's findings [with regard to the review of the license suspension] are without prejudice to the person contesting the suspension or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.
"In Virginia, it is well established that collateral estoppel requires mutuality." Hampton Roads Sanitation Dist. v. City of Virginia Beach, 240 Va. 209, 213, 396 S.E.2d 656, 658 (1990). Under the mutuality doctrine, for which no exception applies in this case, "a litigant is generally prevented from invoking the preclusive force of a judgment unless he would have been bound had the prior litigation of the issue reached the opposite result." N & W Railway Co. v. Bailey Lumber Co., 221 Va. 638, 640, 272 S.E.2d 217, 218 (1980). See also Angstadt v. Atlantic Mutual Ins. Co., 249 Va. 444, 447, 457 S.E.2d 86, 87 (1995). Under the language of Code § 46.2-391.2(C), no party to the license suspension hearing was bound by any ruling made by the general district court. Indeed, the statute states that the findings may not be used in any proceeding.
Thus, I would also affirm the conviction.
NOTES
[1] This statutory section reads, in part:
The court's findings [with regard to the review of the license suspension] are without prejudice to the person contesting the suspension or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335933/ | 474 S.E.2d 281 (1996)
222 Ga. App. 389
LEE
v.
The STATE.
No. A96A1359.
Court of Appeals of Georgia.
August 1, 1996.
*282 Michael R. McCarthy, Rocky Face, for appellant.
Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.
BLACKBURN, Judge.
Renata Gunter Lee appeals her conviction, rendered at a bench trial, of driving under the influence of alcohol (DUI) in violation of OCGA § 40-6-391(a)(1).[1]
Lee was involved in an vehicle collision caused by another driver and was transported to Hamilton Medical Center's emergency room. At the accident scene, the investigating officer, Trooper Robert Turner, detected the smell of alcoholic beverage in Lee's vehicle and went to interview her at the hospital. While Lee was lying on a backboard in the emergency room awaiting treatment, Trooper Turner detected the smell of alcoholic beverage on her person and observed her to have "glassy eyes." Lee admitted she had been drinking earlier that day. A blood test was performed, and it revealed Lee's blood alcohol content was .10 percent.
1. Lee contends that the trial court did not have jurisdiction over her misdemeanor DUI traffic offense. We disagree. "The superior courts have concurrent jurisdiction over misdemeanors with inferior courts. Ga. Const., Art. VI, Sec. I, Par. IV; *283 OCGA § 15-6-8." Hall v. State, 200 Ga.App. 585, 588, 409 S.E.2d 221 (1991).
2. In her second enumeration of error, Lee claims that the trial court erred in denying her motion in limine to suppress blood evidence. Specifically, Lee contends that she was never arrested and that in the absence of an arrest, the blood evidence must be suppressed in accordance with OCGA § 40-5-67.1(a).[2]
OCGA § 17-4-1 states that "[a]n actual touching of a person with a hand is not essential to constitute a valid arrest. If the person voluntarily submits to being considered under arrest or yields on condition of being allowed his freedom of locomotion, under the discretion of the officer, the arrest is complete." Clements v. State, 226 Ga. 66, 67, 172 S.E.2d 600 (1970) (an arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be). Trooper Turner testified that he placed Lee under arrest prior to reading her the DUI implied consent warning and Lee indicated that she understood.
"When reviewing a trial court's decision on a motion to suppress, this court's responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them." (Citations and punctuation omitted.) State v. Burnett, 220 Ga.App. 133, 469 S.E.2d 324 (1996). The trial court's finding that Lee was placed under arrest is supported by the evidence, and therefore, it will not be reversed.
Alternatively, Lee contends that the arrest was lacking probable cause. For an officer to have sufficient probable cause to conduct a valid DUI arrest, he must have "knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely." Griggs v. State, 167 Ga.App. 581, 582, 307 S.E.2d 75 (1983). Lee was driving a motor vehicle at the time the accident occurred. The smell of alcoholic beverage was present in Lee's car, she displayed the physical symptoms of someone who had been drinking, and she admitted consuming alcohol earlier in the day. This information was reasonably trustworthy and enabled Trooper Turner to conclude that Lee was under the influence of a drug which would prevent her from driving safely. Consequently, Trooper Turner had probable cause to arrest Lee.
Lee further contends that the blood evidence was obtained by Turner in a coercive manner. Specifically, Lee claims Turner told her that if she refused to take the test, he would take her license away. Turner testified that he read the DUI implied consent warning mandated by law which requires a driver to be informed that refusal to submit to the testing may result in suspension of their license. OCGA § 40-5-67.1(b)(2). Turner was merely complying with the implied consent law when he read the license revocation statement to Lee and was not acting coercively.
3. In her final enumeration of error, Lee contends that the evidence was insufficient to prove her guilt beyond a reasonable doubt. In light of the evidence outlined above, we conclude that a rational trier of fact could have found Lee guilty beyond a reasonable doubt of driving under the influence of alcohol in violation of OCGA § 40-6-391(a)(1). *284 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Judgment affirmed.
BEASLEY, C.J., and BIRDSONG, P.J., concur.
NOTES
[1] OCGA § 40-6-391(a)(1) provides in pertinent part: "A person shall not drive or be in actual physical control of any moving vehicle while ... [u]nder the influence of alcohol to the extent that it is less safe for the person to drive."
[2] OCGA § 40-5-67.1(a) provides in pertinent part: "The test or tests required ... shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391." (Emphasis supplied.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335921/ | 474 S.E.2d 690 (1996)
222 Ga. App. 501
PEAVY et al.
v.
BANK SOUTH, N.A.
No. A96A1054.
Court of Appeals of Georgia.
August 15, 1996.
*691 L. Wayne Gilleland, Macon, for appellants.
Martin, Snow, Grant & Napier, William K. McGowan, John T. McGoldrick, Jr., Macon, for appellee.
McMURRAY, Presiding Judge.
Plaintiffs Jerry O. Peavy, Sr. and his wife, Lillie J. Peavy, brought this action for damages against defendant Bank South, N.A. ("the Bank"), alleging that they were customers of the Bank, and that, as an accommodation to his son, "Jerry Otha Peavy, Jr., who did not have a bank account of his own," plaintiff Jerry O. Peavy, Sr. allowed his son to deposit a certain draft "in the amount of $5,323.60 drawn by CNL Insurance America on its account with BANK SOUTH, N.A." This draft was jointly "payable to the order of Jerry Peavy and Trust Company Bank[; however, on December 29, 1992,] the draft was [presented and accepted for deposit even though] endorsed only by Jerry Peavy, plaintiff's son." "Notwithstanding these explicit written instructions, ... BANK SOUTH, N.A. [allegedly] paid the draft to one endorsee only," thereby allegedly acting as both a depository bank and a collecting bank. Plaintiffs, "acting in good faith and believing that the $5,323.60 had been deposited in their account lawfully and properly, and therefore rightfully belonged to their son, wrote checks over the period of January and February 1993 withdrawing the funds and exhausting said amount for the direct benefit of their son, Jerry Otha Peavy, Jr." No one from the Bank contacted plaintiffs until March 30, 1993. At that point, the Bank concluded that the draft had been improperly deposited and reversed the transaction it had made on December 29, 1992, by debiting plaintiff's account and crediting CNL Insurance America's account in the sum of $5,323.60. Also, on or about March 30, 1993, Bank officer Cecil Gordon "telephoned [plaintiffs] and [allegedly] threatened to send them to jail if they did not immediately deposit the sum of *692 $5,323.60 into their account to make up for the amount of the draft [the Bank] had removed from [plaintiffs'] account." Plaintiffs complied with this directive from the Bank, by depositing the proceeds from a previously planned sale of stock. Plaintiffs sought to recover the $5,323.60 they paid into their account as a result of the Bank's alleged conversion and tortious coercion, as well as other unspecified damages and attorney fees.
The Bank admitted the chronology of events and that it "credited the account of plaintiffs with the amount of the draft." On or about March 30, 1993, the Bank "became aware that the draft had been knowingly deposited ... without the signature of the copayee. [The Bank] then credited the account of CNL Insurance America in the sum of $5,326.60 ... and debited the account of Jerry O. Peavy, Sr. by that same amount...." But the Bank denied any conversion of funds, contending that the charge-back was authorized under Article 4 of the "Uniform Commercial CodeBank Deposits and Collections," OCGA § 11-4-101 et seq., and also under its deposit account agreement with plaintiffs. The Bank further admitted that Cecil Gordon was its agent attempting to collect a debt from plaintiffs when he insisted that plaintiffs make an immediate deposit, but denied that Cecil Gordon threatened to institute criminal proceedings.
After discovery, the Bank moved for summary judgment, contending that the undisputed facts showed no tortious coercion by the Bank and that plaintiffs cannot recover for their voluntary payment of additional sums paid into their overdrawn checking account. The Bank supported its motion with the deposition of plaintiff Lillie J. Peavy, who affirmed that she gave a deposit slip to her husband's son, who actually endorsed the CNL Insurance America draft and deposited it in plaintiffs' checking account. It was Lillie J. Peavy's understanding that this draft from the insurance company was "to take care of [certain] damage to [Jerry O. Peavy, Jr.'s] car." She confirmed her understanding that Trust Company Bank "ha[d] a lien on the car," but did not know that the insurer's draft was made payable jointly to her stepson and Trust Company Bank. It is undisputed that the draft was never endorsed over as payable to plaintiffs.
Lillie J. Peavy recalled her telephone conversation with someone who "identified himself as Cecil Gordon from Bank South Security.... He said ..., you need to bring fifty-four hundred dollars down to Bank South immediately. I said, I don't have fifty-four hundred dollars. He said, what did you do with the money, Ms. Peavy. I said, I didn't do nothing with no money. He said, do you not know this is a criminal offense. I said, what. Then he explain [sic] to me, you know, that this check from C & L Bank [sic] was returned to Bank South with insufficient endorsement and [he] wanted to know what was my relation to it and I explained to him as far as we knew that money belonged to [Jerry O. Peavy, Jr.] and that he deposited it in our account because he was going back out on the road and when he would ask for money, he would have me write a check for him and I would write a check for whatever he asked for. He said, so you're an innocent party in this. I said, well, yes, I guess so." Lillie J. Peavy confirmed that "Mr. Gordon told [her] or asked [her] don't you know that this is a criminal offense." She also confirmed that, while Cecil Gordon "didn't threaten [her] with prosecution or anything like that[, ... ] the way he was speaking to [her] harshly. It was likehe acted like I was a criminal and like I was going to go to jail or something. He scared [her]." That same day, Mrs. Peavy sold some stock and caused "[a]round ten thousand [dollars]" to be deposited into her checking account, to cover the negative balance. Bank records demonstrated this deposit was actually $8,634.70. Plaintiffs sold that stock intending "to put a down payment on a large truck so [Jerry O. Peavy, Sr.] could go into the trucking business. The bank had already approved the loan." But Lillie J. Peavy confirmed that her conversation with Cecil Gordon took place "[a]fter [she] had [already] sold the stock." (Emphasis supplied.) Mrs. Peavy further affirmed that the Bank "cover[ed] any checks" that plaintiffs had written on their account. Plaintiffs never sought legal counsel before telling Cecil Gordon that they would make the additional deposit.
*693 The Bank further relied on plaintiffs' deposit contract, which incorporates by reference the Bank's published General Deposit Regulations and accorded the Bank "a security interest in all amounts credited to the Account and in all checks or other items now or in the future delivered to the Bank for collection.... The Bank may charge any... indebtedness against the Account whenever the Bank believes in good faith that the prospect of payment of such indebtedness is then matured...."
Plaintiffs filed their own cross-motion for partial summary judgment, based on the Bank's alleged breach of warranty and coercion. The trial court granted the Bank's motion for summary judgment, and this appeal followed. Held:
1. In their second enumeration, plaintiffs contend that the trial court erred in granting summary judgment as to the claim for tortious coercion, because the Bank's agent, Cecil Gordon, threatened Lillie J. Peavy by asking her if she knew writing bad checks was a criminal offense.
"Duress is shown where there was an apparent intention and ability to execute the threat that would have coerced action or inaction contrary to the victim's will." (Citations and punctuation omitted.) Fields v. Thompson, 164 Ga.App. 331, 332(2), 333, 297 S.E.2d 100. "It has been frequently held that mere threats of criminal prosecution, where neither warrant has been issued nor proceedings commenced, do not constitute duress.... The threatened prosecution must be for an act either criminal or which the party threatened thought was criminal. A mere empty threat does not amount to duress." Bond v. Kidd, 1 Ga.App. 798, 801, 57 S.E. 944.
OCGA § 16-9-20(a) proscribes the offense of deposit account fraud, including drawing bad checks. There is considerable doubt that a question directed to a bank customer, as to whether that customer knew writing checks drawn against an account with insufficient funds (in exchange for a present consideration or wages) was a criminal offense, constitutes anything more than a truism. Moreover, Lillie J. Peavy conceded that Cecil Gordon never threatened her with prosecution for any criminal offense. There is no evidence that any criminal warrant was ever issued at the behest of the Bank. In our view, any implied threat of prosecution subjectively perceived by Lillie J. Peavy in the case sub judice was a mere empty threat by the Bank. Consequently, we hold that such a question as was posed to Lillie J. Peavy is not that coercion or duress contemplated by the law as would render the Bank liable to these plaintiffs for reimbursement of the funds they deposited into their overdrawn account allegedly in response to such interrogation. Yearwood v. Nat. Bank of Athens, 222 Ga. 709, 712, 152 S.E.2d 360. The trial court correctly granted summary judgment as to plaintiffs' claim of tortious coercion.
2. In related enumerations, plaintiffs contend the trial court erred in granting summary judgment as to their claim in conversion and breach of statutory warranties. They argue that a jury question exists as to "whether the wrongful debiting of a bank account without the consent nor [sic] knowledge of the owners and holders of said account constitutes tortious conversion." In our view, although plaintiffs, in the depository agreement, gave the Bank their prior consent to exercise a right of setoff, we nevertheless agree that a jury question is presented as to whether the Bank's actions in the case sub judice were timely and in good faith.
"An instrument payable to the order of two or more persons: ... [i]f not in the alternative is payable to all of them and may be negotiated, discharged, or enforced only by all of them." (Emphasis supplied.) OCGA § 11-3-116(b). "An instrument is converted when: ... (b) Any person to whom it is delivered for payment refuses on demand either to pay or to return it; or ... (c) It is paid on a forged endorsement." OCGA § 11-3-419(1). "Payment of [a] check [or draft] without the endorsement of a joint payee is an exercise of dominion and control over the check [or draft] inconsistent with the nonsigning payee's rights amounting to a conversion. F.D.I.C. v. Marine Nat. Bank of Jacksonville, 431 F.2d 341(3-6) (5th Cir.1970). The situation is analogous to payment *694 of the check [or draft] on a forged endorsement, which Code Ann. § 109A-3-419 (1)(c) [OCGA § 11-3-419(1)(c)] acknowledges to be a conversion." Trust Company of Columbus v. Refrigeration Supplies, 241 Ga. 406, 408, 246 S.E.2d 282.
In the case sub judice, there is no evidence that, after a demand by plaintiffs to pay or return the instrument, the Bank refused to return that instrument, i.e., the CNL draft itself. Consequently, the Bank did not wrongfully exercise any dominion over that draft amounting to a conversion under OCGA § 11-3-419(1)(b). See generally Bank South, N.A. v. Roswell Jeep Eagle, 204 Ga.App. 432, 434(5), 419 S.E.2d 522. Nor would the Bank's reversal of the transaction amount to an act of dominion inconsistent with the rights of the nonsigning co-payee (Trust Company) as would be a conversion by the Bank, acting in its capacity as the collecting bank. Compare Trust Co. of Columbus v. Refrigeration Supplies, 241 Ga. 406, 407, 246 S.E.2d 282, supra. Contrary to plaintiffs' contentions, as depositors, they do not occupy the position of an "other payor" so as to benefit from any warranties made by a collecting bank to a payor bank or drawee, as imposed by OCGA § 11-4-207(1)(a). Compare Ins. Co. of North America v. Atlas Supply Co., 121 Ga.App. 1, hn.2, 172 S.E.2d 632. Consequently, we agree with the trial court that the acts alleged do not amount to any conversion which is inimical to any property interests of the plaintiff-depositors in the draft.
3. As to the alleged conversion of the funds (versus the draft) subsequently deposited into plaintiffs' checking account, plaintiffs' depository agreement granted the Bank a security interest in all deposits credited to plaintiffs' account and expressly made all deposits provisional. Consequently, the Bank had a contractual right to reverse the transactions by debiting plaintiffs' account and crediting CNL's account in the amount of the draft, upon learning that the draft had not been properly endorsed. Friedland Properties v. C. & S. Nat. Bank, 148 Ga.App. 259, 260, 251 S.E.2d 143. See also OCGA § 11-4-207(1). Nevertheless, it is our view that, a jury question remains as to the complete propriety of the Bank's actions in asserting its contractual rights in this particular case.
Generally, the time for a payor Bank to accept and pay, or else to return, a demand item such as the CNL draft in the case sub judice is by "midnight of the banking day of receipt ..." of the item. OCGA § 11-4-301(1). The CNL draft, with its patently insufficient endorsement, was accepted for deposit on December 29, 1992. Fully three months later, the Bank "became aware" that the draft it had accepted was insufficiently endorsed, although the record is devoid of specific facts showing how this circumstance was, at last, brought to the Bank's attention. Since the Bank was both the depository-collecting bank and the ostensible payor bank, the three-month delay in identifying the inadequate endorsement is attributable to no one but the Bank. "Particularly in the case of a missing endorsement, even a cursory glance at the back of the [draft], by either the bank or the customer, [here CNL as drawer,] would bring the mistake to light." Trust Co. Bank v. Atlanta IBM Employees Fed. Credit Union, 245 Ga. 262, 264, 264 S.E.2d 202. The missing endorsement in the case sub judice was irregular enough on its face to raise some question as to the validity of an endorsement for deposit into the account of one not a payee. Consequently, the Bank had a duty to inquire to ascertain the authority of the depositor-plaintiffs. Thornton & Co. v. Gwinnett Bank & Trust Co., 151 Ga.App. 641, 646(4), 647, 260 S.E.2d 765. Thus, although the Bank revoked its settlement and charged plaintiffs' account, ostensibly under OCGA § 11-4-212(3), claiming that plaintiffs breached warranties imposed by OCGA § 11-4-207(1), the record in the case sub judice does not establish beyond all question that the Bank acted with all commercially reasonable due diligence and dispatch, in discovering the irregularity, or that it acted evenhandedly as between its two customers, plaintiffs on the one hand and CNL on the other, in addressing the error. The Bank's contractual right of setoff must be exercised in good faith. First Nat. Bank etc. v. Appalachian Indus., 146 Ga.App. 630, 634(4), 247 *695 S.E.2d 422. Based on the record before us, those questions of diligence, commercial reasonableness, and good faith are for the jury. See, e.g., Trust Co. of Ga. Bank of Savannah, N.A. v. Port Terminal etc. Co., 153 Ga.App. 735, 736(1), 741, 266 S.E.2d 254. Consequently, the trial court erred in granting summary judgment as to plaintiffs' claim sounding in wrongful setoff. Any remedy may be limited as justice requires to avoid unjust enrichment. Woodard v. First Nat. Bank etc., 159 Ga.App. 769, 771, 285 S.E.2d 229.
Judgment affirmed in part and reversed in part.
JOHNSON and RUFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335950/ | 474 S.E.2d 278 (1996)
222 Ga. App. 383
RODRIQUEZ
v.
CITY OF AUGUSTA.
No. A96A1033.
Court of Appeals of Georgia.
July 31, 1996.
Calvin A. Rouse, Augusta, for appellant.
Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Ziva P. Bruckner, Augusta, for appellee.
HAROLD R. BANKE, Senior Appellate Judge.
Orlando O. Rodriquez, Jr. sued the City of Augusta d/b/a Bush Field ("the City") for damages allegedly sustained when he slipped and fell in an airport rest room. The trial court granted the City's motion for summary judgment, and this appeal followed.
Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 *279 S.E.2d 474 (1991). Viewed in that light, the evidence was as follows. In order to obtain a rental car, Rodriquez went to Bush Field Airport which is owned and operated by the City. While at the airport Rodriquez used a rest room where Steve Weber, an airport employee, was present. Weber testified that the restroom floor appeared clean and that there were no foreign objects or spills on it. Shortly after Weber left, Rodriquez allegedly slipped and fell. Rodriquez, who denoted himself as a "floor specialist with chemicals in anti-slip resistant matters," testified that he tended to pay attention to floors because of the nature of his occupation. Rodriquez conceded that "[t]here was nothing unusual about the floor," the floor was not wet and no water was on it. He testified that "[t]here was apparently something on the floor that was not visible to the eye" which was slimy to touch but not visible. Rosevelt Abrarm, the employee in charge of the rest room at issue, testified that five or ten minutes before Rodriquez fell, when he cleaned the rest room he checked the floor and it was dry and free of foreign substances. Held:
1. The trial court properly granted summary judgment. It is undisputed that Rodriquez was an invitee at the time of the incident. Liability for an invitee's injuries in a slip and fall premises liability case is determined by the relative knowledge possessed by the owner and the invitee of the condition or hazard which resulted in the injury. Shansab v. Homart Dev. Co., 205 Ga.App. 448, 450(3), 422 S.E.2d 305 (1992). To avoid summary judgment on his slip and fall claim, Rodriquez had to show that 1) the City had actual or constructive knowledge of the foreign substance, and 2) that he was without knowledge of it or for some reason attributable to the City was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980).
No evidence was presented that the City had actual knowledge of the alleged hazard. Constructive knowledge can be established in two ways: first, it may be inferred where there is evidence that an employee of the defendant was in the immediate vicinity of the dangerous condition and could easily have noticed and corrected the hazard; and second, knowledge can be imputed to a defendant if a plaintiff can show the dangerous condition was on the floor for a sufficient length of time. Smith v. Wal-Mart Stores, 199 Ga.App. 808, 809, 406 S.E.2d 234 (1991).
Attempting to show that the City had constructive knowledge, Rodriquez offered only his own self-contradictory testimony. In his deposition, he testified that there was no water on the floor and that the slimy substance which purportedly caused his fall was not visible. According to his deposition testimony, he could not feel the slippery spot with his foot. In his affidavit, he testified that he noticed there was water on the floor, that the floor had a wet area, that the water concealed the slick spot and that the water did not cause him to fall. According to his affidavit, the slick spot was easy to detect with his foot. Contradictory testimony, where no reasonable explanation for the inconsistencies has been offered, must be eliminated from consideration on motion for summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30(2), 343 S.E.2d 680 (1986).
Rodriquez's claim that an employee should have noticed the alleged hazard is not factually supported by any evidence. "Constructive knowledge can only be inferred where there is evidence that an employee was in the immediate vicinity of the dangerous condition and could have easily discovered and removed the hazard. [Cit.]"(Emphasis in original.) Drake v. Kroger Co., 213 Ga.App. 72, 74(1), 443 S.E.2d 698 (1994). The fact that Rodriquez admitted that the alleged dangerous substance was not visible precludes finding that the City's employee could have easily noticed and corrected it. Jester v. Ingles Market, 206 Ga.App. 327, 328, 425 S.E.2d 323 (1992). Further, Rodriquez failed to show that the substance was on the floor for an appreciable amount of time, and the City offered testimony from two employees that the bathroom floor appeared to be dry and free of foreign substances just prior to the time of the alleged fall. Smith, 199 Ga.App. at 809, 406 S.E.2d 234. The trial court correctly determined that the City *280 had no notice of the alleged hazard. Having successfully pierced an essential element of Rodriquez's prima facie case, the City was entitled to summary judgment as a matter of law. OCGA § 9-11-56(c); Lau's Corp., 261 Ga. at 495, 405 S.E.2d 474.
2. In light of our holding in Division 1, we need not reach Rodriquez's remaining enumeration.
Judgment affirmed.
POPE, P.J., and ANDREWS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/758118/ | 156 F.3d 1154
47 U.S.P.Q.2d 1829
Dr. Raymond G. TRONZO, Plaintiff-Appellee,v.BIOMET, INC., Defendant-Appellant.
Nos. 97-1117, 97-1177 and 97-1213.
United States Court of Appeals,Federal Circuit.
Aug. 28, 1998.Rehearing Denied Oct. 19, 1998.
James F. Davis, Howrey & Simon, Washington, DC, argued, for plaintiff-appellee. With him on the brief were Jeffrey I. Auerbach and Michael N. Haynes. Of counsel on the brief were Robert S. Hackleman, Connis O. Brown, III, and George S. LeMieux, Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., Fort Lauderdale, FL.
Donald R. Dunner, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., Washington, DC, argued, for defendant-appellant. With him on the brief were Don O. Burley and Robert L. Burns. Of counsel on the brief was L. Martin Reeder, Jr., Steel Hector & Davis, West Palm Beach, FL.
Before RICH and NEWMAN, Circuit Judges, and ARCHER, Senior Circuit Judge.*
Opinion for the court filed by Senior Circuit Judge ARCHER. Concurring opinion filed by Circuit Judge NEWMAN.
ARCHER, Senior Circuit Judge.
1
Biomet, Inc. (Biomet) appeals the judgment of the United States District Court for the Southern District of Florida, 91-CV-8175, holding Biomet liable for infringement of U.S. Patent No. 4,743,262 ('262 patent) and, under Florida law, for breach of a confidential relationship and fraud. The court determined that claims 1, 2, 9, and 10 of the '262 patent were not invalid or unenforceable for inequitable conduct and that Biomet's device infringed claims 1 and 9 literally and claims 1, 2, 9, and 10 under the doctrine of equivalents. Because claims 1 and 9 are not entitled to the filing date of the '262 patent's parent application and are anticipated by intervening prior art, we reverse the district court's judgment that these claims are not invalid. Because infringement under the doctrine of equivalents would vitiate the conical limitation in claims 2 and 10, we reverse the district court's judgment of infringement as to these claims. Finally, because substantial evidence supports the jury's verdicts regarding the state law causes of action but the damages awarded thereunder are not commensurate with Dr. Tronzo's (Tronzo) injury, we affirm-in-part and vacate-in-part on those issues, and remand for reconsideration of damages.
BACKGROUND
2
The patent and technology in this case relate to artificial hip sockets that include cup implants adapted for insertion into an acetabular, or hip, bone. The claims of the '262 patent at issue read:
3
1. An acetabular cup prothesis [sic] comprising a body extending generally longitudinally and terminating into front and rear surfaces, said front surface extending substantially transversely to said body; and at least one fin for securing said cup to a prepared acetabulum cavity, said fin having a length extending generally longitudinally from said front surface toward said rear surface continuously along said body throughout the entire length of said fin, and said fin being configured so as to extend radially outwardly beyond the perimeter of said front surface and said body so as to engage with the cavity thereby securing said cup.
4
2. An implant of claim 1, wherein the body has a generally conical outer surface.
5
9. An acetabular prosthesis consisting essentially of (1) a body extending generally longitudinally and terminating into front and rear surfaces extending substantially transversely to said body; and (2) at least one fin for securing said cup to a prepared acetabulum cavity, said fin having a length extending generally longitudinally from said front surface toward said rear surface continuously along said body throughout the entire length of said fin, and said fin being configured so as to extend radially outwardly beyond the perimeter of said front surface and said body so as to engage with the cavity thereby securing said cup.
6
10. A prosthesis of claim 9, wherein the body has a generally conical outer surface.
7
Figures 1 and 3 of the '262 patent illustrate the preferred embodiment of the invention:
8
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The cup 12 is inserted into a bore or hole 14 in the patient's hip bone 10. The cup has a plurality of longitudinally extended fins (24, 26, and 28) that allow the cup to grip beyond the bore 14 and to lock the prosthesis in place. Once the cup is in place, the fins provide additional resistance to the rotation of the cup and allow bony ingrowth into areas not necessarily found in other systems.
Pictured below is the accused Mallory/Head cup, DTX 469A, a hemispherical, finned cup.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
9
On March 24, 1987, Tronzo filed the application that yielded the '262 patent as a continuation-in-part of an application filed on June 1, 1984, which issued as U.S. Patent No. 4,681,589 ('589 patent). The '262 patent issued to Tronzo on May 10, 1988. Subsequently, the '262 patent was twice reexamined at the Patent and Trademark Office, resulting in the confirmation of the patentability of the original claims and the addition of claims 9, 10, and 11.
10
Tronzo sued Biomet on April 25, 1991 for patent infringement and, under Florida law, for breach of a confidential relationship, fraud, and unjust enrichment. By special verdict, the jury found that the patent was entitled to the filing date of the '589 patent's application (the parent application), was not invalid, and was willfully infringed and that Biomet was liable under state law for breach of a confidential relationship, fraud, and unjust enrichment. The jury awarded Tronzo $3,805,000 for patent infringement; $4,757,000 in compensatory plus $15,000,000 in punitive damages for the breach of a confidential relationship; $7,134,000 in compensatory and $20,000,000 in punitive damages for fraud; and $4,750,000 in compensatory damages for unjust enrichment.
11
In accordance with the jury's findings on the patent issues, including willful infringement, the district court enhanced the damages for patent infringement by fifty percent, resulting in a total award of $5,707,500. See 35 U.S.C. § 284 (1994) (permitting enhancement of damages up to three times the amount assessed). The district court denied Biomet's motion for judgment as a matter of law (JMOL) on the patent issues. The court further determined that the patent was not unenforceable. Finally, the court granted Biomet's motion for JMOL with respect to the state law claims, dismissing with prejudice the unjust enrichment count and capping the total recovery available to avoid double recovery at $7,134,000 in compensatory damages and $20,000,000 in punitive damages.
DISCUSSION
12
We review a denial of a motion for JMOL de novo by reapplying the JMOL standard. See Read Corp. v. Portec, Inc., 970 F.2d 816, 821, 23 USPQ2d 1426, 1431 (Fed.Cir.1992); see also Fed. R. Civ. Proc. 50(b). Thus, we will reverse a denial of a motion for JMOL only if the jury's factual determinations are not supported by substantial evidence or the legal conclusions implied from the verdict cannot be supported in law by those findings. See Kearns v. Chrysler Corp., 32 F.3d 1541, 1547-48, 31 USPQ2d 1746, 1751 (Fed.Cir.1994).I.
13
For a claim in a later-filed application to be entitled to the filing date of an earlier application under 35 U.S.C. § 120 (1994), the earlier application must comply with the written description requirement of 35 U.S.C. § 112, p 1 (1994). See Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1571, 41 USPQ2d 1961, 1965-66 (Fed.Cir.1997). Section 112, paragraph 1 requires that the specification "contain a written description of the invention, and of the manner and process of making and using it ." To meet this requirement, the disclosure of the earlier application, the parent, must reasonably convey to one of skill in the art that the inventor possessed the later-claimed subject matter at the time the parent application was filed. See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19 USPQ2d 1111, 1116 (Fed.Cir.1991); see also Hyatt v. Boone, 146 F.3d 1348, 1354-55, 47 USPQ2d 1128, 1132 (Fed.Cir.1998). A disclosure in a parent application that merely renders the later-claimed invention obvious is not sufficient to meet the written description requirement; the disclosure must describe the claimed invention with all its limitations. See Lockwood, 107 F.3d at 1572, 41 USPQ2d at 1966. Because the issue of whether the written description requirement has been satisfied is a question of fact, we must determine whether substantial evidence supports the jury's verdict that the requirement has been met. See Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 865, 26 USPQ2d 1767, 1774 (Fed.Cir.1993).
14
Biomet asserts that claims 1 and 9 of the '262 patent are not entitled to the filing date of the parent application and consequently that intervening prior art anticipates these claims.1 Specifically, Biomet argues that the '589 patent's specification describes only one cup--a conical cup--and thus does not provide sufficient support for claims 1 and 9, which are generic as to the shape of the cup. Thus, Biomet contends that claims 1 and 9 are not entitled to the benefit of the parent application's earlier filing date and are anticipated under 35 U.S.C. § 102(b) (1994) by intervening prior art, including Tronzo's British application which was published on December 4, 1985, more than one year before the filing of the CIP application resulting in the '262 patent, and which was the counterpart to his U.S. application that yielded the '589 patent.2
15
Tronzo responds that claims 1 and 9 are generic claims as to the shape of the cup and that the '589 patent's specification need only describe a sufficient number of species of cups to support the generic claim. Tronzo asserts that the '589 patent discloses six species of acetabular cup implants, which is sufficient support.
16
The patentee has conceded that intervening prior art would anticipate claims 1 and 9.3 Thus, the only issue is whether claims 1 and 9 are entitled to the earlier filing date of the parent application. We conclude that substantial evidence does not support the conclusion that the '589 patent specification meets the written description requirement relative to claims 1 and 9 of the '262 patent. Accordingly, these claims are not entitled to the parent application's filing date.
17
The '589 patent describes the invention as a "trapezoid," a "truncated cone," or a cup of "conical shape." ' 589 Patent, col. 3, l. 63, col. 4, ll. 22-23. A reading of the specification demonstrates that these labels describe the same cup, and not three different species as asserted by Tronzo. Indeed, contrary to Tronzo's assertions, the '589 patent discloses only two species of cups: an "eccentric cup," which has a top lip shorter than the bottom lip, and a "true" cup, with all sides being equal. See id. at col. 5, ll. 3-10.
18
Moreover, the only reference in the '589 patent's specification to different shapes is a recitation of the prior art. See id. at col. 1, ll. 13-24 & 45-49. Instead of suggesting that the '589 patent encompasses additional shapes, the specification specifically distinguishes the prior art as inferior and touts the advantages of the conical shape of the '589 cup. See, e.g., id. at col. 3, ll. 63 ("Another extremely important aspect of the present device resides in the configuration of the acetabular cup as a trapezoid or a portion of a truncated cone."). Such statements make clear that the '589 patent discloses only conical shaped cups and nothing broader. The disclosure in the '589 specification, therefore, does not support the later-claimed, generic subject matter in claims 1 and 9 of the '262 patent.
19
The expert testimony offered at trial does not require a contrary conclusion. Tronzo's expert, Dr. Catanzaro, testified that hemispherical cups are disclosed in the '589 patent's specification, identifying two sections in the '589 patent supposedly making such a disclosure. As recognized by the district court, however, the first section referred to by Dr. Catanzaro as a sufficient disclosure served the narrow purpose of reviewing the prior art and did not describe the invention. See id. at col. 1, ll. 13-17. The second section identified by Dr. Catanzaro described "hemispheroidal" position maintaining devices, see id. at col. 1, ll. 46-52, but Dr. Catanzaro later conceded that this section did not refer to the shape of the patented cup.
20
Indeed, the district court recognized that "the written description in the parent '589 does not attempt to identify other, equally functional shapes or talk in terms of a range of shapes...." The court concluded that "the narrow language of the '589 application cannot be said to disclose expressly either the particular hemispherical shape of the '262 claims or the entire genus of cups within which the conical cup of the '589 claims and the hemispherical cup of the '262 claims belong." The district court nevertheless determined that the jury's conclusion could be supported because the '589 patent's specification inherently contained a disclosure sufficient to meet the written description requirement of § 112, p 1.
21
The only evidence claimed as supporting an inherent disclosure, however, is the testimony of Norman Torchin, another Tronzo expert. Torchin testified that when the inventor stated at column 4, lines 34-38 of the '589 patent that "[a]propos of this, the present concept or invention differs completely from the blades as shown, for example, in prior U.S. Pat. No. 3,840,904" the inventor meant that "the difference is in the blade as opposed to the structure of the cup, although [the inventor] does prefer the conical cup."
22
In order for a disclosure to be inherent, however, the missing descriptive matter must necessarily be present in the parent application's specification such that one skilled in the art would recognize such a disclosure. See Continental Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268, 20 USPQ2d 1746, 1749 (Fed.Cir.1991). There is nothing in the '589 specification to suggest that shapes other than conical are necessarily a part of the disclosure. Indeed, as discussed above, the specification clearly suggests the contrary by asserting advantages of the conical shape over prior art shapes. The rationale of Tronzo's expert claimed to support inherency is not sufficient to support the generic claims in the '262 patent. See In re MacLean, 454 F.2d 756, 759, 172 U.S.P.Q. (BNA) 494, 497 (CCPA 1972) ("Certainly the single exemplary disclosure of using 93% by weight water in the liquid phase provides no support or description of the recited range 'preponderantly water,' i.e. anything above 50% by weight."). Torchin's testimony does not explain why a broader supporting disclosure is necessarily part of the '589 patent. We also agree that the district court properly rejected Torchin's reliance on an incorporation by reference of a prior Tronzo patent as supporting inherency.
23
Finally, relevant expert testimony of Biomet's witness, Dr. Hill, who testified that in his view as an orthopedic surgeon the '589 patent disclosed only a trapezoidal cup and nothing more is consistent with the express language in the '589 specification.
24
Accordingly, because the specification of the '589 patent fails to meet the written description necessary to support claims 1 and 9 of the '262 patent, these claims are not entitled to the filing date of the parent application and are invalid as anticipated by the intervening prior art.
II.
25
The remaining claims at issue, claims 2 and 10, were found to be infringed under the doctrine of equivalents. An accused device may infringe under the doctrine of equivalents only if it possesses all of the limitations of the relevant claim either literally or equivalently. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 117 S. Ct. 1040, 1054, 137 L. Ed. 2d 146 (1997). Whether an element of the accused device is equivalent to a claim limitation depends on "whether the substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role substantially different from the claimed element." Id. If a theory of equivalence would vitiate a claim limitation, however, then there can be no infringement under the doctrine of equivalents as a matter of law. See id. 117 S.Ct. at 1049, 1053 n. 8.
26
Biomet argues that infringement of claims 2 and 10 under the doctrine of equivalents by a hemispherical cup would vitiate the limitation requiring that the cup have a "generally conical outer surface." Tronzo responds that substantial evidence supports the jury's conclusion that a hemispherical shape is equivalent to a generally conical shape.
27
We are convinced that the evidence offered did not adequately establish legal equivalency of the hemispherical shape. While the evidence tended to demonstrate that the shape of the cup was irrelevant to achieving the desired result and that after successful implantation any shape would function essentially the same way, it also indicated that various shapes could produce "forces that might be different." Thus, Tronzo's expert, Dr. Catanzaro, testified that
28
when either a hemispherical cup or trapezoidal cup or any other shape cup is successfully implanted into the body, it functions almost exactly the same way. Now, you can measure forces that might be different in various shapes, but don't forget, once these things are incorporated by the body, the body doesn't look at the shape of the cup, all it is looking at is a ball rotating inside a piece of plastic, because both these things are now part of the body.
29
(Emphasis added). This testimony as to function and way is merely conclusory on the legal issue to be decided. According to the expert testimony, any shape would be equivalent to the conical limitation of claims 2 and 10. Such a result is impermissible under the all-elements rule of Warner-Jenkinson because it would write the "generally conical outer surface" limitation out of the claims. See 117 S. Ct. at 1053 n. 8. Accordingly, the accused cup cannot infringe claims 2 and 10 under the doctrine of equivalents as a matter of law.
III.
30
At trial, the jury additionally found Biomet liable for fraud, and for breach of a confidential relationship, under Florida law. Under the fraud count, Tronzo asserted that Biomet had promised to pay Tronzo a royalty if he obtained a patent protecting his implant. Tronzo claimed detrimental reliance on this promise in pursuing patent protection and asserted that Biomet never intended to fulfill its promise. Tronzo thus contended that Biomet was liable for fraud. Under the breach of confidentiality count, Tronzo argued that Biomet disclosed his design to others in breach of a confidential relationship between himself and Biomet.
31
Biomet challenges the jury's verdict regarding liability and damages under these state law claims. As to liability, Biomet asserts a litany of challenges to the legal standards applied by the district court and to the adequacy of the evidence supporting the jury's factual determinations. We discern neither legal errors by the district court nor a lack of substantial evidence supporting the jury's verdict regarding liability.
32
Biomet also challenges the award of either a constructive trust of Biomet's profits or a reasonable royalty to Tronzo under the state law claims because, in Biomet's view, neither is causally related to Tronzo's actual injury. Tronzo responds that a constructive trust is an appropriate remedy under Florida law for either of the state law claims and that there is substantial evidence to support the jury's verdict under either theory.
33
In order for an award of damages to be proper, there must be some nexus between the damages claimed and the injury incurred. See Rucker v. Garlock, Inc., 672 So. 2d 100, 102 (Fla.Dist.Ct.App.1996). Under Florida tort law, the damages awarded should place the plaintiff in the position he would have been absent the tortious conduct. See Phillips v. Ostrer, 481 So. 2d 1241, 1246 (Fla.Dist.Ct.App.1985); Ashland Oil, Inc. v. Pickard, 269 So. 2d 714, 723 (Fla.Dist.Ct.App.1972); see also Restatement (Second) of Torts § 549 cmt. g (1977) ("[T]he purpose of a tort action is to compensate for the loss sustained and to restore the plaintiff to his former position, and not to give him the benefit of any contract he has made with the defendant.").
34
We conclude that the award of lost profits (as a constructive trust) or a reasonable royalty as damages for the torts asserted is inappropriate because it does not properly reflect Tronzo's actual injury. The district court noted, regarding the fraud claim, that
35
[w]hile Biomet's argument that a patent is not a detriment has perhaps a superficial appeal, it neglects the costs to Dr. Tronzo of seeking his patent, defending it on re-examination, and of foregoing opportunities to pursue relationships with other companies or to pursue other means for bringing his acetabular cup to market.
36
While we agree with this characterization of the injury to Tronzo, such injury is not related to the lost profits damages awarded in this case. Nor do we see how, under the breach of confidentiality claim, Tronzo would have been injured in a way to entitle him to such damages. Instead, the award seems more akin to a remedy for breach of contract instead of either of the alleged torts. See Ashland, 269 So. 2d at 723 ("[P]laintiffs recovered out-of-pocket expenses ... plus loss of profits on their sales. This would ordinarily be an impermissible double recovery. However, such an award is permissible where plaintiffs pursue an action both for deceit and breach of contract.") (emphasis added).
37
Moreover, the use of a constructive trust is inappropriate in these circumstances. Generally, to impose a constructive trust, there must be an express or implied promise, a transfer of property in reliance thereon, a confidential relationship, and unjust enrichment. See Abreu v. Amaro, 534 So. 2d 771, 772 (Fla.Dist.Ct.App.1988). The purpose of this equitable remedy is both to prevent unjust enrichment and to restore property to its rightful owner. See id. Here, the only transfer of "property" that occurred in reliance on Biomet's promise was the transfer of information. The lost profits cannot properly be considered to be the rightful property of Tronzo--he never possessed such money or transferred it to Biomet. Thus, a constructive trust remedy is inappropriate in this case.4
38
We also note that upon the record before us there is no evidence to prove any of the costs and injuries incurred by Tronzo, such as the costs of prosecuting the patent and lost business opportunities. Thus, we remand to the district court to determine whether such evidence was presented and, if not, whether in the district court's discretion it would be appropriate to take new evidence in this regard.CONCLUSION
39
We have considered Biomet's other arguments on appeal and find them without merit. We reverse the district court's judgment that claims 1 and 9 are not invalid and that claims 2 and 10 are infringed under the doctrine of equivalents. Given our conclusions regarding invalidity and noninfringement, we do not reach the issues of inequitable conduct or the invalidity of claims 2 and 10. We affirm the district court's judgment of liability under the state law claims but vacate and remand for the district court to determine an appropriate award of damages in accordance with this opinion.
40
AFFIRMED-IN-PART, REVERSED-IN-PART, VACATED-IN-PART AND REMANDED.
41
PAULINE NEWMAN, Circuit Judge, concurring in the judgment.
42
I concur in the judgment that claims 1 and 9 of the '262 patent are invalid on the ground of obviousness, in view of the references to Deyerle and McBride. However, the panel majority has erred in its treatment, as "anticipating" prior art under section 102(b), of Dr. Tronzo's own British counterpart of his United States parent application. The disclosure in the British patent is identical to that of the earlier-filed United States parent application; nonetheless, the panel majority treats the British patent as invalidating prior art. However, the patentee is entitled to the benefit of the prior filing of the parent United States application for the subject matter contained therein. Without the improperly relied-upon British counterpart, the rejection based on "anticipation" can not stand.
43
A continuation-in-part application relates back to its parent's filing date for the common subject matter. Since the intervening publication of the common subject matter is antedated by the United States parent application, the British counterpart is neither an "anticipating" reference nor a statutory bar against the continuation-in-part application. The publication of the British counterpart of Dr. Tronzo's parent application does not deprive him of the benefit of the filing date of the parent application for the subject matter of the parent application.
44
The contrary holding of the panel majority will have a dramatic adverse effect on continuation-in-part practice. The ruling that the disclosure in an inventor's parent application becomes prior art against a continuation-in-part application, when it is published before the filing of the continuation-in-part application, is a new and pernicious burden on inventors who seek early entry into the patent system while continuing to investigate the subject of their invention.
45
The issue of relating back to a parent filing date is different from the issue of constructive reduction to practice of generic claims in the continuation-in-part. There is no issue in this case of determining priority of invention. The issue is whether a patentee can rely on the filing of subject matter in a parent application in order to predate the later publication of that subject matter. According to the court's ruling today, the patentee loses the entire benefit of that earlier filing whenever a continuation-in-part is filed with additional data and broadened claims based in part on that data. That is, the patentee's own prior disclosure now becomes prior art against him. That is new, and incorrect, law. A later publication can not "anticipate" what is already on file; to the contrary, the later publication is removed as a reference by the identical earlier filing in the United States.
46
The purpose of the continuation-in-part is to permit an applicant to add new information and data, while retaining the benefit of the original filing date for what was originally filed. Many applicants obtain foreign patents based on the original filing, because of the first-to-file rule in foreign countries and the comity rules of the Paris Convention; some countries publish patents within a few months of their filing. With the court's holding today, such foreign patents are a statutory bar if the continuation-in-part is filed more than a year after the publication of the foreign counterpart. Thus the patentee is deprived of the benefit of the earlier filing in the United States, whenever new matter and broader claims are added by continuation-in-part. This destruction of the continuation-in-part practice is contrary to law and to the public interest. Thus I must, respectfully, dissent from the reasoning relied on by the panel majority.
*
Senior Circuit Judge Glenn L. Archer, Jr. vacated the position of Chief Judge on December 24, 1997
1
Biomet concedes that claims 2 and 10 are adequately supported by the specification of the '589 patent and thus are entitled to the earlier filing date
2
Biomet also asserts that intervening sales of the accused device should also constitute invalidating, intervening prior art. The district court, however, refused to consider this argument because Biomet had failed to timely raise it. Because Biomet has not demonstrated error in the district court's decision to bar the argument, we also do not reach this contention. See Austin-Westshore Constr. Co. v. Federated Dep't Stores, Inc., 934 F.2d 1217, 1222 (11th Cir.1991); see also Holmes v. United States, 85 F.3d 956, 963 (2d Cir.1996)
3
Although the basis of the patentee's concession of intervening prior art is not evident from the record, we note that the CIP application disclosed for the first time generically-shaped implant bodies. See '262 Patent, col. 5, ll. 30-31 (disclosing an implant body having "a spherical, conical, trapezoidal, or other suitable outer surface"); id. at col. 10, ll. 12-13 (disclosing an implant body having "a semi-circular external shape, or another suitable shape"); see also Vas-Cath, 935 F.2d at 1562, 19 USPQ2d at 1115; In re Lukach, 442 F.2d 967, 969-70, 169 U.S.P.Q. (BNA) 795, 797 (CCPA 1971)
4
Additionally, such a remedy is only appropriate if there are no adequate remedies at law. Bender v. Centrust Mortgage Corp., 51 F.3d 1027, 1030 (11th Cir.1995) (applying Florida law). In our view, allowing Tronzo to recover only his actual injuries will provide adequate redress | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1725071/ | 197 So. 2d 447 (1967)
Hubert Damon STRANGE
v.
STATE.
7 Div. 760.
Supreme Court of Alabama.
February 13, 1967.
PER CURIAM.
Petition of Hubert Damon Strange for certiorari to the Court of Appeals to review Strange v. State, 43 Ala.App. 599, 197 So. 2d 437. Death of petitioner suggested, and petition dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1167007/ | 630 P.2d 13 (1981)
Anthony MORRIS, Appellant,
v.
STATE of Alaska, Appellee.
Randolph Francis MILLER, Appellant,
v.
STATE of Alaska, Appellee.
Nos. 4264, 4318.
Supreme Court of Alaska.
June 26, 1981.
*14 Bonnie J. Coghlan, Aschenbrenner & Savell, Fairbanks, for appellant Miller.
David C. Backstrom, Deputy Public Defender, Fairbanks, Brian Shortell, Public Defender, Anchorage, for appellant Morris.
Randy M. Olsen, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.
OPINION
BURKE, Justice.
Anthony Morris and Randolph Francis Miller were convicted of dispensing marijuana (Count I) and possession of marijuana for the purpose of sale (Count II) in violation of AS 17.12.010.[1] Morris and Miller were sentenced to five-year terms of imprisonment on each count,[2] to be served *15 concurrently, with four and one-half years suspended. See AS 12.55.080.
I
In late February or early March, 1978, Miller asked Andy "Moose" Harlan, age seventeen, if he would sell some marijuana for him. Harlan agreed, and a few days later went to a small cabin in Fairbanks to pick up the marijuana. Harlan purchased a small amount of the drug for his own use for ten dollars, and received an additional four ounces from Miller, with the understanding that he would pay $185.00 for it after he sold it. Later, Morris came from behind a curtain which divided the cabin. Miller handed Morris the ten dollars that Harlan had given him, and told him it was Harlan's payment for some marijuana.
Harlan was arrested shortly after he began his sales efforts, and agreed to cooperate with the police. He and David Curwen, a police agent, returned to the cabin, where Morris answered the door. Harlan told him that Curwen had purchased the four ounces, whereupon Curwen and Morris began to discuss the possibility of more marijuana sales. In the course of the conversation, Morris "indicated that he was supposed to take the [$185.00 owed on the four ounces]; that's what Randy wanted him to do." Curwen gave him the money, which Morris put in his pocket. By this time, Curwen had tentatively agreed to buy an additional one-half pound. Morris "indicated that there was a half-pound at the location, however, it was his partner's, and he indicated the name, Randy, twice in ... the conversation... . That he couldn't get rid of that, he would have to go across town to get his own." A signal was given, and other police officers entered the cabin and arrested Morris. Miller, who had apparently been in the curtained-off section of the cabin while the negotiations between Curwen and Morris took place, was also arrested.
On March 7, 1978, the Grand Jury returned an indictment charging both Miller and Morris with dispensing marijuana to a minor, Andrew Harlan, and possession of marijuana for purposes of sale.
Prior to trial, Miller moved to sever his trial from that of his co-defendant, Morris, on the ground that he would be unable to cross-examine Morris concerning Morris' alleged statements to Curwen. The motion was denied. The court indicated, however, that it would hold a hearing on the admissibility of those statements at the time of trial, and that it would not permit the statements to be introduced if it appeared, at that time, that their introduction would violate Miller's right of confrontation. At trial the court found Morris' references to "Randy" and "my partner" admissible, because there was sufficient independent evidence of a joint undertaking to establish an exception to the hearsay rule.
As previously indicated, Morris and Miller were both convicted on each of the two counts charged.
II
Morris argues that his conviction on Count I (dispensing marijuana to a minor) was partly the result of an improper instruction. Over Morris' objection, the court instructed the jury on accomplice liability. Morris contends that this deprived him of due process of law under the Fifth Amendment to the United States Constitution and article I, section 7 of the Constitution of Alaska, because he understood the indictment charged him as a principal, not an accomplice. This, he argues, is analogous to charging him with one offense and permitting the jury to find him guilty of another.
Morris' argument is frivolous: there is no distinction between principles and accomplices under Alaska law. AS 12.15.010 (repealed by Ch. 166, § 21, SLA 1978, effective January 1, 1980).[3] "[A]ll persons concerned *16 in the commission of a crime, whether they directly commit the act constituting the crime or, though not present, aid and abet in its commission, shall be prosecuted, tried, and punished as principals." Id. The indictment, therefore, was sufficient to put Morris on notice that he could be found liable under evidence showing that he was a principal or under evidence showing that he only acted as an accomplice. See Scharver v. State, 561 P.2d 300, 302 (Alaska 1977). Morris does not contend that he was misled as to what facts the state intended to prove, only that he thought those facts were going to be used under instructions which would omit mention of accomplice liability. Thus, we conclude that there was no error.
III
Morris further argues that, even if the accomplice instruction was properly given, the evidence at trial was insufficient to establish his criminal liability on Count I. According to Morris, there was a complete lack of evidence showing that he aided and abetted Miller's sale of four ounces of marijuana to Harlan.[4] We disagree.
There was evidence showing that Morris was more than a passive observer. He collected the proceeds from two drug sales, including the one to Harlan, and negotiated a third sale with Curwen. Thus, we believe reasonable persons could differ on the question of whether Morris was Miller's partner and had aided and abetted him in the transaction leading to his conviction on Count I. Such being the case, Morris was not entitled to a judgment of acquittal. Ladd v. State, 568 P.2d 960, 969 (Alaska 1977) cert. denied 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524; Gray v. State, 525 P.2d 524, 526 (Alaska 1974).
IV
Miller, in his appeal, claims that it was error to refuse to sever the trials because of the incriminating nature of Morris' out-of-court statements to Curwen, which Miller says "should not have been admitted against [him] in a joint trial." Miller's argument misses the point: the trial court found that the out-of-court statements were admissible against Miller, because of the co-conspirator exception to the hearsay rule. Thus, even if the trials had been separate, the evidence would still have been admissible against Miller. If the court erred, it was in admitting the evidence at all, not in denying the motion for separate trials.[5]
The statements attributed to Morris were clearly hearsay[6] as applied to Miller, and the only question is whether they were nonetheless admissible. In Amidon v. State, 565 P.2d 1248 (Alaska 1977), we adopted and set out the requirements for *17 the Alaska version of the co-conspirator exception to the hearsay rule. Relying on Kay v. United States, 421 F.2d 1007, 1010 (9th Cir.1970), we found the exception applicable to a joint trial even in the absence of a conspiracy count. In order to establish the exception, the out-of-court "declaration must have been made while the joint undertaking was continuing, and must have been in furtherance thereof." 565 P.2d at 1259. Furthermore, "the existence of the joint undertaking must be proven independently to justify the admission of the co-defendant's statement." Id.
Assuming, for purposes of argument, that the evidence was sufficient to establish a joint undertaking, we are unpersuaded by the state's argument that Morris' statements to Curwen were made in furtherance of the conspiracy. Thus, those statements were not admissible against Miller on the charge contained in Count II of the indictment (possession of marijuana for sale). Since we cannot say this error was harmless, Miller's conviction on Count II must be reversed.
V
In addition to the separate arguments discussed thus far, Miller and Morris raise a joint objection to their convictions on Count I. This claim of error concerns the trial court's refusal to instruct the jury that a reasonable belief that the alleged purchaser was over the age of eighteen years was a defense to the charge.
Count I charged Morris and Miller with selling marijuana "to a minor ... in violation of AS 17.12.010 and AS 17.12.110." Arguing that they could have reasonably believed that Andrew Harlan "was of legal age," the defendants argue that they should have been acquitted of the charged offense. This argument, we believe, fails to recognize the significance of the purchaser's age at the time of the alleged offense. Contrary to the defendants' belief, and the language of their proposed instruction, a reasonable belief that Harlan was over the age of eighteen years would not, in and of itself, have entitled them to an acquittal.
Harlan's age had no bearing on the question of whether the defendants were guilty of a violation of AS 17.12.010. Guilt was established when the jury concluded beyond a reasonable doubt that the defendants sold marijuana to Harlan on the date in question; regardless of the purchaser's age, the crime of selling marijuana, in violation of AS 17.12.010, was complete. Harlan's age was important only in determining the punishment that could be imposed for that offense.
If the sale was "to a person less than 19 years of age," Morris and Miller were subject to the enhanced penalty provisions of AS 17.12.110(c), thus "punishable by imprisonment for any term of years or life, or by a fine of not more than $25,000, or by both." Otherwise, they were subject to the lesser penalties authorized by AS 17.12.110(b)(1): "imprisonment for not more than 25 years, or by a fine of not more than $20,000, or by both." Since it is clear from the record that the defendants were sentenced under AS 17.12.110(b)(1), rather than AS 17.12.110(c), the court's refusal to give their requested instruction was of no legal significance.[7]
VI
Finally, Morris and Miller both claim that the superior court imposed excessive sentences. Our reversal of Miller's conviction on Count II, of course, requires that his sentence on that conviction be set aside. As to Miller's conviction on Count I, and Morris' conviction on both counts, we must determine both whether the court was "clearly mistaken," McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974), and whether it acted under an "incorrect legal assumption." Campbell v. State, 594 P.2d 65, 67 *18 (Alaska 1979). We are unable to say that the court was clearly mistaken as to the length of its sentences.
However, we are persuaded to remand for resentencing of both defendants because the trial judge evidently utilized an improper legal standard in imposing sentence. It appears that the superior court classified the crimes for which Morris and Miller were convicted as coming somewhere between the two worst categories of drug offenses set forth in Waters v. State, 483 P.2d 199, 201 (Alaska 1971).[8] In fact, Morris and Miller were convicted of "marijuana offenses" which fall within the least serious category of Waters. See Snyder v. State, 585 P.2d 229, 234 (Alaska 1978). Thus, resentencing is required because of the court's error, as the improper classification plainly "had significance in the court's sentencing decision." See Campbell v. State, 594 P.2d 65, 67 n. 6 (Alaska 1979).
We do not mean to imply that all marijuana offenses are to be treated alike, or that a particular marijuana offense cannot be regarded as sufficiently serious to call for a heavy penalty. We believe it is important, however, that in sentencing the superior court apply appropriate legal standards.
Morris' conviction on Counts I and II is affirmed. Miller's conviction on Count I is affirmed. On Count II, Miller's conviction is reversed and the case remanded for a new trial. The sentences of both defendants are vacated and their cases remanded for resentencing in accordance with this opinion.
RABINOWITZ, C.J., concurs in part, dissents in part.
COMPTON, J., not participating.
RABINOWITZ, Chief Justice, concurring in part, dissenting in part.
I agree with all of the court's holdings except its reversal of Miller's conviction on Count II. The majority bases its reversal upon the conclusion that Morris' statements to Curwen were not made in furtherance of their joint undertaking. Here the joint undertaking between Morris and Miller was the sale of marijuana. In my view, the questioned statements were made in the course of negotiations between Morris and Curwen and furthered that end.
Additionally, assuming error, I believe any error here was harmless. Miller was convicted by Harlan's testimony as to Miller's statements and actions, not by anything that Morris attributed to him.
NOTES
[1] AS 17.12.010 provides:
Act prohibited. Except as otherwise provided in this chapter, it is unlawful for a person to manufacture, compound, counterfeit, possess, have under his control, sell, prescribe, administer, dispense, give, barter, supply or distribute in any manner, a depressant, hallucinogenic or stimulant drug.
[2] AS 17.12.110 provides, in relevant part:
(b) A person who violates ... a provision of this chapter relating to the possession or control of depressant, hallucinogenic and stimulant drugs, when his possession or control is for the purpose of sale or other disposal to another person, is guilty of a felony and upon conviction is punishable as follows:
(1) For the first offense, by imprisonment for not more than 25 years, or by a fine of not more than $20,000, or by both;
(2) For the second and subsequent offenses, by imprisonment for any term of years or life, or by a fine of not more than $25,000.00 or by both.
(c) A person who violates a provision of this chapter by selling or otherwise disposing of a depressant, hallucinogenic or stimulant drug to a person less than 19 years of age is guilty of a felony and upon conviction is punishable by imprisonment for any term of years or life, or by a fine of not more than $25,000.00, or by both.
[3] The repeal of AS 12.15.010, and its replacement by the addition of chapter 16 to AS 11, was made entirely prospective. Ch. 166, § 23(f), SLA 1978. Thus, AS 12.15.010 continues to apply to all crimes committed before January 1, 1980. Id.
[4] Morris challenged the sufficiency of the evidence in two motions, one for a directed verdict and one for judgment notwithstanding the verdict. Morris' first motion challenged both counts of the indictment, but no argument was presented regarding Count II. After the verdict, the motion was renewed only as to Count I. Morris' brief claims that the latter motion "was in effect a renewal of the earlier motion for acquittal." We hold that Morris failed to make a valid objection to Count II. Only a single sentence in his brief addresses it, and the issue was not properly presented to the trial court.
[5] We observe that in this case the statements objected to were testified to at trial, prior to resolution of the admissibility issue. Since the trial court then found the statements admissible, this lapse was not of concern to Miller. If, however, the trial court had found that the statements were inadmissible, a mistrial might have been necessary. We take this opportunity to stress the importance of the economical and efficient administration of the judicial system in determining evidentiary issues such as this one in a fashion that will avoid these difficulties. See generally, ABA Standards Relating to Joinder and Severance § 2.3 (Approved Draft 1968).
[6] This case was tried prior to the promulgation of the Alaska Rules of Evidence. Under the present rules, a co-conspirator's incriminating statements are admissible because they are not within the definition of hearsay. See Alaska Rules of Evidence 801(d)(2)(E).
[7] The trial court concluded, as a matter of law, that the defendants could reasonably have believed that Harlan was 19 years of age or older. Moreover, its remarks at and before sentencing clearly indicate the court's understanding that the defendants were not subject to the enhanced penalties authorized by AS 17.12.110(c). Thus, this is not a case where the court misperceived the length of the sentences that could be imposed.
[8] In Waters, we established four "categories ... relevant in sentencing of drug offenders." In descending order of seriousness, those categories are:
(1) Smuggling or sale of large quantities of narcotics or possession of large quantities for sale.
(2) Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale.
(3) Possession of narcotics without intent to sell.
(4) Marijuana offenses.
483 P.2d at 201. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725093/ | 226 S.W.2d 856 (1950)
MASSEY
v.
STATE.
No. 24556.
Court of Criminal Appeals of Texas.
February 15, 1950.
Blalock & Hardage, Texarkana, Bryan Blalock, Texarkana, for appellant.
*857 George P. Blackburn, State's Atty., of Austin, for the State.
DAVIDSON, Judge.
McCall was the owner of a frame building situated just outside the city limits of the city of Texarkana. Appellant operated Burkhalter's Drive-in Cafe in the building, and owned the furniture and fixtures. McCall had leased the building originally to Rice, who assigned the lease to Treadway, who, in turn, assigned to Chapman. Chapman had then assigned the lease to appellant and sold him the furniture and fixtures for $2,000that is, $250 cash and a note for $1,750. Appellant obtained a fire insurance policy on the furniture and fixtures for $2,000, with loss payable to Chapman. Appellant acquired the cafe some time in September, 1948, and endeavored to secure a license to sell beer therein. Being unable to secure the license, he offered to sell to Mrs. Bell, an employee of the cafe, for the same amount and under the same conditions that he had purchased the cafe. Mrs. Bell agreed to buy provided a license to sell beer could be obtained. A license was refused her and the deal was not consummated. Appellant operated the cafe until about the 15th day of October, or four or five days before the fire, at which time he closed up the business, realizing he could not make a success of it without a license to sell beer. At that time he owed the $1,750 to Chapman and a month's rent of $50 to McCall. Up until a few days before the cafe was closed, appellant lived in the building. About that time and while negotiating the sale to Mrs. Bell, appellant moved from the building and rented a room in the city. This is the fact situation existing at the time of the fire on October 20, 1948.
Scott, a patrolman in the city of Texarkana, discovered the cafe on fire, as he says, "around 2 or 2:30 * * * somewhere up in the morning." He was not more specific about the exact time. At that time, he testified, "the fire was burning out the left side of the building from the front, the east side." He reported the fire to the fire department.
Benjamin, chief of the fire department, testified that it was "sometime after 3 o'clock in the morning" when the fire department arrived at the scene of the fire and that when he got there "the entire rear of the Drive-in had burned * * *. The fire was in the back of the building when I got there."
Evans, a highway patrolman, was present at the fire, and some four or five days thereafter he took some pictures of the burned premises, as to which he testified: "I don't know whether the debris had been cleared off the floor,there wasn't anything left on the floor except just in this condition here. When I went out to take the pictures the floor appeared to have been burned, some of it,trails or sections had been burned in the floor, and these pictures pretty well show that."
The record before us does not reflect that the pictures referred to were introduced in evidence.
Smith, a special agent of the National Board of Fire Underwriters, visited the scene of the fire on the 7th or 8th of November, 1948, or about eighteen days after the fire, and made an investigation to determine its origin. Whether the predicate offered for the testimony of this witness was sufficient to qualify him as an expert in such matters is not before us, inasmuch as no bill of exception has been brought forward complaining of his testimony because of an insufficient predicate. According to Smith's testimony, the kitchen, or rear, portion of the building was practically burned away; the front of the building, though badly burned, was still standing, the floor of which was burned in spots or trails. We quote from his testimony, as follows:
"I am familiar with the type of burning caused by inflammable liquids on the floor and have seen numerous instances of it. If you have asphalt drops, composition roof drops, it would be in drops; if a liquid was spread on the floor that spreads out more or less in a trail. The liquid will go to a certain line or spot and that will be irregular. The liquid burns, alcohol, whiskey or anything, will burn to the edge, and where *858 the floor is not saturated with the liquid it will not burn. It might burn later but the floor saturated by the liquid will burn first. As to whether the floor will burn in that area, it will depend on the type of liquid used and also on how much resin was in the pine, and whether or not burning continued after the accelerant had has burned itself out.
"In this instance, roofing material didn't drop. A few pieces of celotex had burned or dropped but it makes a different mark from liquid; but those showing there, I could not say the exact volitive (sic) used but I can describe the condition of the floor. The interior of the building was 20 by 30 feet, and in the north end was a double front door with windows on either side; and about eleven feet from the rear wall of the building there was a curved counter where some six or seven stools were, and on either side of the building, the west and east side, were booths, some three or four double booths, table between seats. Where these booths were, on that portion of the floor there were no trails at all, trails where I speak of where there was a curve or spotted burning. Right at the common wall between this building and the kitchen that has burned away completely, that spotted and trailed burning occurred on up in the front and the front door,it was charred on the floor. There would be a section of perfect uncharred floor and then an area of charred floor with irregular outline. I noticed where some of the celotex had dropped and that was a distinct line and you could tell the difference, but it was burned all over it. There was areas all over where the floor was not burned bur spotted around it, up in the front in the middle of the building but not where the booths were or had been. Between the booths and the other side of the building there was an open space where customers would walk or dance. As to whether there was any furniture or equipment or anything along there that would have burned and made those spots,I wasn't there immediately prior to the fire or after it, but the last time I was in there three years before the fire there was an open area and the booths on the side and counter."
Witness was then asked to state: "* * * whether or not in your opinion these charred or burned places in the floor in their regular pattern were caused by some volitive (sic) fluid having been put on there and ignited."
He replied as follows: "Yes, I would say that there had been not only volitive (sic) fluid but some accelerated fluid was apparently on that floor in an irregular pattern. As to how it got ignited I don't know but it apparently burned in spots."
(Parentheses, supplied in foregoing quoted testimony.)
To connect appellant with the fire the State relied upon the following:
The witness Birtcher, a taxicab driver in Texarkana, testified that around 2:30 o'clock on the morning of October 20, 1948, in answer to a call, he picked up appellant and a woman at the Olympia Cafe. He first drove the woman to her house. At appellant's direction he then took him to the Burkhalter Drive-In Cafe, where appellant got out of the cab. After paying his cab fare, he was seen by Birchter to go "down by the side of the building on the east side next to the creek." Witness then drove away, returning to his cab stand, where he picked up other passengers. As he was driving them to their destination, he heard the siren of a fire truck.
The witness Brooks, another passenger, or friend, who had been riding in the taxicab all this time, corroborated the witness Birtcher. The witness Claudie Phillips, a waitress in the Olympia Cafe, who called the taxicab for appellant, also corroborated Birchter as to appellant and the woman getting into the taxicab and as to the time thereof.
Appellant's defense was that of alibi. He testified that about 11 o'clock on the night of the fire Bratton, a taxicab driver for the Yellow Cab Company, picked up a woman and him at the corner of 6th and Texas Streets in the city of Texarkana and carried them to a tourist camp; that upon registering there and signing. "T. E. Massey and wife" on the registration card he was assigned a room; that he and the woman remained there until after 4 o'clock the *859 next morning, at which time they left and went to a cafe about a block and a half from the tourist camp and called the Yellow Cab Company for a cab. The call was answered by Elrod, the driver, who carried him and the woman to their respective places of residence.
Appellant denied the testimony of the State's witnesses and that he burned or had any connection with the burning of the building.
The witnesses Bratton and Elrod corroborated appellant's testimony in that he and the woman were taken to and from the tourist camp, as testified by him. The clerk at the tourist camp who took the registration and assigned the room identified the registration card as having been signed in his presence. He was unable, however, to identify the appellant as the person who signed the card. The State did not challenge the signature on the registration card as being in appellant's handwriting.
The jury rejected appellant's defense and convicted him of the crime of arson in the wilful burning of the house of McCall, and assessed his punishment at five years in the penitentiary.
This extended statement of the facts is deemed necessary in view of appellant's insistence that the facts are insufficient to support the convictionwhich question he presents by several bills of exception, in determining the merits of which it is pertinent to refer to certain well-established legal principles.
The essential element of the crime of arson is the wilful burning of the building, without which that crime has not been committed. Proof, merely, that the building burned is not sufficient to establish that fact. Duncan v. State, 109 Tex. Crim. 668, 7 S.W.2d 79. Nor is the fact that the burning was done by the accused to be taken for granted simply from the circumstance that he could have done it. 4 Tex. Jur., p. 824, Sec. 23. There must be some proof, direct or circumstantial, showing the wilful burning of the building by some one and the criminal connection of the accused therewith, which is the corpus delicti of the crime of arson. Duncan v. State, supra; Zepeda v. State, 139 Tex. Crim. 258, 139 S.W.2d 820.
That appellant had a motive to burn the building is shown by the fact that the business was not a success. He had endeavored to sell the business, and could not. By burning the building he might assure the regaining of the $250 cash he had put into the business. Appellant was at and in the vicinity of the building a short time before the fire was discovered; he had the opportunity to burn the building.
But motive and opportunity, alone, are not sufficient to establish that he set fire to the building. There must be some testimony showing that the fire was of incendiary originthat is, that some one wilfully burned the building; proof, merely, that the building burned is not sufficient to so show.
To meet this burden, the State relies upon the testimony of the witness Smith and his opinion, based upon an examination of the burned premises some eighteen days after the fire, that some "volitive" and "accelerated" fluid had been on the floor of the building in an irregular pattern. The witness did not explain what he meant by the terms, "volitive" and "accelerated." His testimony as a whole indicates that he intended the word, "volatile," instead of "volitive." In any event, his testimony is susceptible of the construction that it was his opinion that some quick vaporizing and inflammable fluid had been placed on the floor of the burned building.
It appears undisputed that the fire originated in the kitchen, or rear, of the building. It did not originate in that portion of the building where Smith found the evidence that an inflammable liquid had been used. There is no testimony showing that at the time of the fire any person detected, by smell or otherwise, that any inflammable fluid had been used in the building or that portion where the fire originated.
We have searched this record in vain for any testimony showing that the burned building was in the same condition at the time Smith made his examination as it was *860 immediately after the fire. For the burned places on the floor, as described by the witness and upon which he based his opinion, to be of any probative value they must of necessity have been the result of the fire upon which this prosecution is based.
It is a rule applicable to circumstantial evidence that where a relevant, competent, and material fact is in possession of the State and not disclosed it will not be resolved against the accused. 18 Tex.Jur., p. 440, Sec. 318.
Here, the record reflects that the fire marshall and representatives of the insurance company interrogated the accused after the fire, and that the chief of the fire department testified as a witness in the case, yet none of them were interrogated relative to these matters which were very material to the State's case. It is apparent, therefore, that the State was in position to show, if such was the case, that the burned premises were in the same condition at the time Smith made this examination as they were immediately after the fire. The State's failure to make such proof is a circumstance against it and not against the accused.
However strong the inference may be that some inflammable fluid had been poured in an irregular pattern on the floor of the building prior to the time of the fire, that inference is not as strong as, and must yield to, the presumption of innocence which follows the accused throughout the trial of every criminal case.
Finally, then, the State's case depends upon the indulgence of the inference that inflammable liquids were poured on the floor of the building just before the fire, and upon that inference the further inference is indulged that such showed an incendiary or wilful burning of the building. Thus the State's case is entirely circumstantial, resting upon an inference based upon an inference. This may not be done. 18 Tex.Jur., p. 16, Sec. 5. Presumptions of fact are not indulged against an accused. East v. State, 146 Tex. Crim. 396, 175 S.W.2d 603.
The State's testimony raises a strong suspicion or probability of appellant's guilt but such does not constitute proof of his guilt.
Believing the evidence insufficient to support the conviction, the judgment is reversed and the cause remanded.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743584/ | 511 So. 2d 1103 (1987)
FLORIDA POWER & LIGHT COMPANY, Appellant,
v.
AMERICAN LIMITED CORPORATION, Appellee.
No. 86-1464.
District Court of Appeal of Florida, Fifth District.
September 3, 1987.
Barry R. Davidson and John W. Little, III, of Steel, Hector & Davis, Miami, for appellant.
William L. Coalson of Greene, Greene & Coalson, P.A., Jacksonville, for appellee.
COBB, Judge.
Florida Power and Light Company (FPL) filed a condemnation proceeding seeking a 300-foot wide easement across land in Putnam County owned by American Limited Corp. American counterclaimed for specific performance, asserting that FPL had orally contracted to buy the land in question for $150,000. FPL answered the counterclaim and raised the statute of frauds[1] as an affirmative defense. The specific performance claim was severed for separate trial from the condemnation action.
At the conclusion of a nonjury trial, the trial judge granted specific performance requiring conveyance of the property to FPL for $150,000. This holding was based on a finding that promissory estoppel negated the statute of frauds defense. We reverse. Promissory estoppel is not a valid bar to the statute of frauds defense under Florida law. Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So. 2d 777 (Fla. 1966). Equitable relief is not available to one who relies upon the validity of an unenforceable express contract rather than seeking quantum meruit relief. 27 Fla.Jur.2d, Statute of Frauds, § 12 (1981).
REVERSED.
ORFINGER, J., concurs.
DAUKSCH, J., dissents with opinion.
DAUKSCH, Judge, dissenting.
I respectfully dissent, but not too strongly because perhaps the pleadings must be stretched a bit to reach my conclusion. In my view, when the parties agreed upon the $150,000 figure the actual consideration for that sum was the forbearance from a defense of the condemnation action not the conveyance of the land. FPL had the legal right and authority to condemn the land and take it away from the appellee so there was not really a price-for-conveyance agreed upon. If no land conveyance was involved in the $150,000 agreement then the statute of frauds is not involved, but merely an oral contract for payment to facilitate the taking. I would sustain the trial judge's result.
NOTES
[1] See § 725.01, Fla. Stat. (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266346/ | 5 Cal.Rptr.3d 107 (2003)
112 Cal.App.4th 272
The PEOPLE, Plaintiff and Respondent,
v.
Daniel Patrick HARD, Defendant and Appellant.
No. A097349.
Court of Appeal, First District, Division Five.
September 26, 2003.
*109 Joseph Baxter, under appointment by the Court of Appeal, Santa Rosa, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Violet M. Lee and John R. Vance, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
*108 SIMONS, J.
Under Health and Safety Code section 11379.8, a defendant convicted of manufacturing methamphetamine "with respect to" a substance of a certain volume containing methamphetamine earns an enhanced penalty. In this case we consider whether a defendant arrested in the early stages of the manufacturing process is subject to this volume enhancement when he possesses more than three gallons of a solvent containing methamphetamine to be used in the final stage of the process to purify crystallized methamphetamine. Defendant argues that the volume enhancement applies only to a substance produced during the manufacture and does not apply to a substance possessed for later use in the process. We disagree and conclude that the volume enhancement applies to any substance containing methamphetamine which is produced, used, or to be used in the process of manufacturing methamphetamine.
Health & Safety Code section 11379.8, subdivision (d) grants discretion to the sentencing court to strike the volume enhancement. Because the trial court mistakenly believed it lacked such discretion, we remand for resentencing. (People v. Meloney (2003) 30 Cal.4th 1145, 135 Cal. Rptr.2d 602, 70 P.3d 1023.)[1]
Procedural Background
A jury found defendant guilty of manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)) and of doing so with respect to a substance containing methamphetamine that exceeded three gallons of liquid by volume (Health & Saf. Code, § 11379.8, subd. (a)(1)). The jury also found him guilty of possession of ephedrine with intent to manufacture methamphetamine (Health & Saf.Code, § 11383, subd. (c)), and of obstructing or delaying a peace officer (Pen.Code, § 148, subd. (a)). ` In a separate court trial, the court found true special allegations that defendant had been convicted in the past of possessing methamphetamine for sale (Health & Saf.Code, §§ 11370.2, subd. (b), 11378) and had served a prior prison term (Pen.Code, § 667.5, subd. (b)).
The court sentenced defendant to prison for the aggregate term of 14 years, comprised of the upper seven-year term for processing methamphetamine, to run consecutively with a three-year term for the volume enhancement, a three-year term for the prior conviction of possessing methamphetamine for sale, and a one-year term for having served a prior prison term. The court stayed an upper six-year term on the conviction for possession of ephedrine with intent to manufacture methamphetamine, and sentenced defendant to a concurrent one-year jail term for the misdemeanor conviction of obstruction of a police officer.
*110 FACTUAL BACKGROUND
In the course of investigating another crime, a Lake County deputy sheriff smelled a strong odor related to methamphetamine manufacture emanating from a pickup truck located in the parking lot next to a motel in Lakeport. Later, the officer smelled the same odor coming from room 10 at the motel, situated directly across the lawn from the truck. The officer knocked on the door of room 10 and demanded entry to do a search but was refused. The officer went around to the back door of room 10 and noticed it was ajar, but when the officer started to push it open, defendant slammed the door shut. Next, the officer heard what sounded like furniture being moved against the door as though the person in the room was barricading himself inside.
After several hours of negotiations failed to persuade defendant to surrender, tear gas was used to drive him from the room. Defendant was taken into custody and the room was searched.
Keys to the truck were found in the room. From the truck, law enforcement officers seized numerous items that could be used in the manufacture of methamphetamine, including two plastic gas cans, a five-gallon white plastic bucket with a lid on it, and a red zippered bag that held three canning jars. Each contained liquid. By combining the contents of the five-gallon bucket with those of the two gas cans, the total volume amounted to at least four gallons.
From room 10, officers seized additional items that could be used in the manufacture of methamphetamine. These items included several pieces of glassware that can function as chemical reaction vessels. In addition, officers seized a garbage bag containing a box of Red Devil lye, also used in the methamphetamine manufacturing process, and empty boxes of pseudoephedrine. Pseudoephedrine can be a source of ephedrine used in the manufacture of methamphetamine. Ephedrine was found in a round bottomed flask located in the bathroom of room 10.
Gregory Popovich, a clandestine controlled substances laboratory expert employed by the California Department of Justice, testified that he arrived at the scene soon after the arrest of defendant, examined the materials found in the truck, and entered and examined room 10. He found evidence of two different methods for manufacturing methamphetamine: the ephedrine reduction method and the phenyl-2-propanone (P-2-P) method. In the ephedrine reduction method, ephedrine is extracted from cold tablets by a multistep process that includes grinding the tablets into a fine powder to which chemicals are applied. Popovich testified that the ephedrine in the round bottomed flask represented an early stage of this process. He explained that in later steps the ephedrine is turned into crystallized methamphetamine, which is then washed with an organic solvent to further purify it. He found no completed methamphetamine in room 10, but did find chemicals consistent with manufacture employing the ephedrine reduction method.
Popovich found glassware in room 10 that he associated with the P-2-P method due to residue in the glassware. However, he did not find all of the other materials needed for production under the P-2-P method in room 10 or in the truck. The liquids found in the containers seized from the truck were organic solvents that had earlier been used to produce methamphetamine by means of the P-2-P method. The presence of methamphetamine, together with P-2-P in these liquids, suggested that these solvents were waste material from which methamphetamine had previously been extracted. In the final *111 step of both the P-2-P and ephedrine reduction processes, an organic solvent is used to clean or purify the crystallized methamphetamine. Popovich explained that methamphetamine manufacturers tend to save and reuse such solvents because law enforcement agents look for large sales of them. He further stated that methamphetamine could be extracted from these solvents, but that they probably did not contain a "significant amount of product." Popovich could not say that the solvent taken from the truck had been produced in room 10, but stated that it had the potential to be used to further purify the methamphetamine that was in the course of production in room 10, even though the method being used in room 10 was the ephedrine reduction method. He concluded that the presence of methamphetamine in the solvent would not increase its effectiveness in the purification process.
DISCUSSION
1. The Jury Instruction on Volume Enhancement Was Valid
Over defendant's objection the court modified the 1996 version of CALJIC No. 17.21,[2] the standard instruction defining the volume enhancement imposed by Health and Safety Code[3] section 11379.8, subdivision (a)(1). The key portion of the court's modified instruction read as follows: "It is alleged under count one in the first special allegation that the substance containing methamphetamine exceeded three gallons of liquid by volume within the meaning of [section] 11379.8, subdivision (a)(1). [¶] In order for you to find this special allegation to be true, the following elements must be proved: [¶] One, the person was convicted of manufacturing methamphetamine; two, one of the substances used in, to be used in or produced during the manufacturing process contained methamphetamine; and three, that substance containing methamphetamine exceeded three gallons of liquid by volume." The jury later found this volume enhancement true. This instruction permits a true finding even if the substance containing methamphetamine, the solvent in this case, had not yet been used in the manufacturing process. Defendant contends that this instruction exceeds the intended scope of section 11379.8, and that it was error to provide it. Resolution of this contention requires an analysis of the section's breadth.
In construing this statutory provision, familiar rules of statutory interpretation guide our task. "The primary duty of a court when interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate the purpose of the law. [Citation.] To determine intent, courts turn first to the words themselves, giving them their ordinary and generally accepted meaning. [Citation.] If the language permits more than one reasonable interpretation, the court then looks to extrinsic aids, such as the object to be achieved and the evil to be remedied by the statute, the legislative history, public policy, and the statutory scheme of which the statute is a part. [Citation.] ... Ultimately, the court must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general *112 purpose of the statute, and it must avoid an interpretation leading to absurd consequences. [Citation.]" (In re Luke W. (2001) 88 Cal.App.4th 650, 655, 105 Cal.Rptr.2d 905.)
In pertinent part, section 11379.8, subdivision (a) provides: "Any person convicted of a violation of subdivision (a) of Section 11379.6 ... with respect to any substance containing a [statutorily specified] controlled substance ... shall receive an additional term as follows: (1) Where the substance exceeds three gallons of liquid by volume or one pound of solid substances by weight, the person shall receive an additional term of three years." (Italics added.) Defendant would have us construe the italicized phrase narrowly so that one convicted of manufacturing methamphetamine would be liable for the enhanced penalty only if the substance containing methamphetamine was manufactured in that process. This imposes too limited a meaning for the phrase "with respect to" used by the drafters. Under the term "respect," Webster's defines "with respect to" as "with reference to: in relation to." (Webster's 10th Collegiate Diet. (2000) pp. 994-995.) While the phrase certainly applies to those who manufacture a substance of sufficient volume, it is broad enough to also cover persons who used or will use such a substance in the course of producing the final product.
This broader interpretation is supported by evaluating the language of the enhancement in the context of the breadth of the underlying offense, section 11379.6 (manufacturing methamphetamine). Section 11379.6 provides, in relevant part, "[E]very person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section ... 11055 [ (methamphetamine) ], ... shall be punished by imprisonment in the state prison...." As our Supreme Court has explained, "The conduct proscribed by this section encompasses the initial and intermediate steps carried * but to process a controlled substance." (People v. Coria (1999) 21 Cal.4th 868, 874, 89 Cal.Rptr.2d 650, 985 P.2d 970, citing People v. Lancellotti (1993) 19 Cal.App.4th 809, 813, 23 Cal. Rptr.2d 640.) "It is evident from the Legislature's use of such all-encompassing language that it intended to criminalize all acts which are part of the manufacturing process, whether or not those acts directly result in completion of the final product." (People v. Heath (1998) 66 Cal.App.4th 697, 705, 78 Cal.Rptr.2d 240.) The scope of the prohibition in section 11379.6 is broad because the production of methamphetamine is an incremental, not instantaneous process, often conducted in a piecemeal fashion to avoid detection. (Lancellotti at pp. 811, 813, 23 Cal.Rptr.2d 640.) Because the police can interrupt production at any stage, the language of section 11379.6 should be construed broadly to ensure that a manufacturer will not receive any benefit from police intervention early in the process.
Consequently, section 11379.6 contemplates that a conviction may result even though production is interrupted before all of the substances gathered by a manufacturer and necessary to produce a final product have been utilized. We believe that section 11379.8 should be interpreted in a similar fashion. Had the deputy sheriff arrived at room 10 while newly purified crystallized methamphetamine settled in the solvent, the volume enhancement would clearly apply. We see no reason to interpret the enhancement narrowly to provide a benefit to a manufacturer simply because law enforcement officers *113 arrive earlier in the process, before the solvent has been employed.
Defendant argues the methamphetamine in the solvent was chemically irrelevant to the solvent's role in the process, and, therefore, no legitimate statutory goal is served by subjecting the substance to the volume enhancement. We disagree. The Legislature stated in the uncodified portion of the statute enacting section 11379.8 that: "It is the intent of the Legislature in enacting [section 11379.8] to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity." (Stats.1985, ch. 1398, § 1, p. 4948, italics added.) We believe the intent expressed in this italicized phrase is furthered by interpreting section 11379.8 to authorize the challenged instruction. The solvent contained methamphetamine because it had been utilized in the past to produce that controlled substance. Punishing a current manufacturer who intends to reuse a solvent more severely than one who will use a clean solvent is consistent with the legislative goal of punishing repeat manufacturers. Thus, the instruction given by the trial court in this case was correct.
II. Section 11379.8 Is Not Unconstitutionally Vague
Defendant contends that if the trial court were correct in applying the volume enhancement to the facts in this case, then the section, as applied, would be void for vagueness. He argues that the language of section 11379.8 fails to provide adequate notice that "the volume enhancement applies to supplies prior to their use in the chemical production process." He claims that section 11379.8, by its terms, "only appears to apply to chemicals produced in the manufacturing process."
The Attorney General argues this contention is waived because defendant did not raise it below. Some Courts of Appeal have extended the doctrine of waiver to constitutional issues, including vagueness or overbreadth. (See People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152, 93 Cal. Rptr.2d 863; In re Josue S. (1999) 72 Cal.App.4th 168, 170-174, 84 Cal.Rptr.2d 796.) However, the Court of Appeal in In re Justin S. (2001) 93 Cal.App.4th 811, 814-815, 113 Cal.Rptr.2d 466, held that a constitutional vagueness or overbreadth challenge is not waived where the challenge presents a pure question of law that can be resolved without reference to the record. Assuming without deciding that the waiver rule is inapplicable, we find defendant's claim without merit.
In People v. Rubalcava (2000) 23 Cal.4th 322, 96 Cal.Rptr.2d 735, 1 P.3d 52, the court set forth the parameters of the vagueness doctrine: "A law is void for vagueness only if it `fails to provide adequate notice to those who must observe its strictures' and `"impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."' [Citations.]" (Id. at p. 332, 96 Cal.Rptr.2d 735, 1 P.3d 52.) "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888; accord, People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115, 60 Cal. Rptr.2d 277, 929 P.2d 596.)
In order for a criminal statute to satisfy the dictates of due process, it must meet two requirements. "First, the provision *114 must be definite enough to provide a standard of conduct for those whose activities are proscribed. [Citations.] Because we assume that individuals are free to choose between lawful and unlawful conduct, `we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly. Vague laws trap the innocent by not providing fair warning.' [Citations.] [¶] Second, the statute must provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. [Citations.]" (People v. Heitzman (1994) 9 Cal.4th 189, 199-200, 37 Cal.Rptr.2d 236, 886 P.2d 1229.)
In analyzing whether a statute is sufficiently definite to pass constitutional muster, we look not only at the language of the statute but also to legislative history and California decisions construing the statute. (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 246, 158 Cal.Rptr. 330, 599 P.2d 636.) This is because the courts require citizens to apprise themselves not only of statutory language, but also of legislative history and subsequent judicial construction. (People v. Heitzman, supra, 9 Cal.4th at p. 200, 37 Cal.Rptr .2d 236, 886 P.2d 1229; see also People v. Falck (1997) 52 Cal.App.4th 287, 293-295, 60 Cal. Rptr.2d 624.) In addition, our Supreme Court has cautioned that "abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness. Indeed, in evaluating challenges based on claims of vagueness, the [United States Supreme Court] has said `[t]he particular context is all important.' " (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1116, 60 Cal. Rptr.2d 277, 929 P.2d 596, quoting Communications Assn. v. Douds (1950) 339 U.S. 382, 412, 70 S.Ct. 674, 94 L.Ed. 925.)
"All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears. [Citations.]" (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484, 171 P.2d 21.) A statute "cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." (Ibid.)
Defendant's vagueness challenge is unpersuasive. As we have already discussed, the wording of section 11379.8 does not limit the volume enhancement to only those substances that are manufactured during a violation of subdivision (a) of section 11379.6. The plain language of section 11379.8 applies, without any limitation, to persons convicted of section 11379.6 "with respect to any substance containing a [statutorily specified] controlled substance ...; [¶] (1) Where the substance exceeds three gallons of liquid by volume." (§ 11379.8, subd. (a)(1).) Furthermore, the statement of statutory intent for section 11379.8 makes explicit that this section was intended to cover persons, like defendant, who engage in large scale or repeated production of prohibited substances. (Stats.1985, ch. 1398, § 1, p. 4948.) Finally, the cases interpreting the laws prohibiting the manufacture of methamphetamine have held that it applies to each step in the manufacturing process, regardless of whether a defendant has completed production at the time the operation is halted. Thus, section 11379.8, viewed in the appropriate context, places persons on notice that all substances containing methamphetamine, used or to be used in an operation prohibited by section 11379.6, are subject to the volume enhancements *115 specified in section 11379.8. Persons who conduct such an operation and utilize or produce large volumes of substances containing a controlled substance have fair warning that doing so will subject them to longer terms of imprisonment than those who "have a less serious, occasional or relatively minor role." (Stats.1985, ch. 1398, § 1, p. 4948.)
III. Substantial Evidence Supports the Jury's Finding on Volume Enhancement
Defendant contends that there was insufficient evidence to support the true finding on the volume enhancement. In determining whether a criminal conviction lacks sufficient evidentiary support, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses "substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." {People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)
In this case, it was undisputed that the solvents seized from the truck contained methamphetamine and amounted to more than three gallons by volume. The criminalist testified that such solvents are often reused by methamphetamine manufacturers in the final stages of production to further purify the methamphetamine being produced. He further testified that the solvents from the truck were suitable to be used to purify the particular methamphetamine that had been under production in room 10, even though the ephedrine reduction method was being employed. In other words, the mere fact that these specific solvents had been used in the past to purify methamphetamine made with the P-2-P method, and could be considered a waste product of that process, did not preclude them from being reused to purify the contraband under production inside room 10. These facts are substantial evidence from which the jury could determine that, but for the interruption by law enforcement, the solvents in the truck were to be used by defendant in a later stage of the methamphetamine manufacture underway in room 10.
IV. Sentencing Error Requires Remand For Resentencing
Section 11379.8, subdivision (d) expressly provides: "Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment." Defendant correctly contends the trial court mistakenly believed it lacked this discretion in its sentencing of defendant. Hence, we remand the case to permit the trial court to determine whether or not to exercise this discretion. (See People v. Meloney, supra, 30 Cal.4th at pp. 1151, 1165, 135 Cal.Rptr.2d 602, 70 P.3d 1023.)
At the sentencing hearing, the trial court provided an extended explanation of its intended sentencing decisions before allowing counsel to argue and before pronouncing judgment and sentence. The court recognized that it had to decide whether to stay the sentence for count two under Penal Code section 654. Further, the court noted that it had discretion to select the lower, middle, or upper term on the conviction for count one. However, as to the three enhancements for count one (prior prison term, three-gallon volume enhancement, past conviction of possessing methamphetamine for sale), the court stated in the clearest language possible that it *116 had no discretion and must increase the prison term selected by seven years.[4] Under section 11379.8, subdivision (d), this conclusion was erroneous. Defendant had a right to have the court exercise the discretion it possessed prior to imposing sentence on the enhancement. We remand to permit this to occur. (People v. Meloney, supra, 30 Cal.4th at p. 1165, 135 Cal.Rptr.2d 602, 70 P.3d 1023.)
DISPOSITION
The judgment is reversed and remanded to the trial court for a new sentencing hearing, at which the trial court shall exercise its discretion under section 11379.8, subdivision (d) in deciding whether to strike the three-year enhancement provided by that section.
We concur JONES, P.J., and STEVENS, J.
NOTES
[1] In an opinion filed on May 27, 2003, we affirmed the judgment in this matter in its entirety. On August 27, 2003, the Supreme Court granted review and transferred the matter to us with directions to "vacate [our] decision and to reconsider the cause in light of People v. Meloney (2003) 30 Cal.4th 1145, 135 Cal.Rptr.2d 602, 70 P.3d 1023." In part IV of this opinion, we apply Meloney and alter our prior determination.
[2] The relevant portion of CALJIC No. 17.21 (6th ed.1996) states: "It is alleged [in Count ____] that at the time of the commission of the crime of which the defendant is accused, [he] [she] ______ a substance containing ______ which exceeded . . . [______ by liquid volume]."
[3] All undesignated section references are to the Health and Safety Code.
[4] The court's pertinent comments were: "There are three enhancements that were found to be true by the jury. One is a prior prison term, another is the three-gallon measurement and another is a combination of a current conviction with a prior conviction. That is a conviction for count one with a prior conviction of possession for sale, [section] 11378, which you have. That's a three-year enhancement. [¶] So there's seven years worth of enhancements. All of them are mandatory consecutive. Okay. So whatever prison term I select has to be increased by seven years. There is no if's, and's or but's. Again, my hands are basically tied." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263779/ | 336 A.2d 209 (1975)
Charles DARBY et al., Defendants below, Appellants,
v.
NEW CASTLE GUNNING BEDFORD EDUCATION ASSOCIATION, Plaintiff below, Appellee.
Supreme Court of Delaware.
Argued March 18, 1975.
Decided April 7, 1975.
David F. Anderson, of Potter, Anderson & Corroon, Wilmington, for defendants below, appellants.
John S. Grady, of Bader, Dorsey & Kreshtool, Wilmington, for plaintiff below, appellee.
Before HERRMANN, C. J., DUFFY and McNEILLY, JJ.
DUFFY, Justice:
This appeal from a Superior Court order of mandamus involves a single question: May a School Board be compelled to submit to fact-finding under 14 Del.C. § 4010?[1]
*210 I
Plaintiff is the exclusive negotiating representative for teachers of the New Castle Gunning Bedford School District. 14 Del. C. §§ 4004, 4006. Defendants are members of the Board of Education of that District. The parties reached an impasse during negotiations over a new contract and plaintiff filed a petition for a writ of mandamus to compel the Board to submit to fact-finding. The essential facts were admitted by the parties and thereafter the Court granted plaintiff's motion for summary judgment. This appeal followed.
II
In Delaware the law as to mandamus is well settled. The writ is extraordinary and appropriate only when a plaintiff is able to establish a clear legal right to the performance of a non-discretionary duty, Remedio v. The City of Newark, Del.Supr., 337 A.2d 317 (April, 1975); 2 Woolley on Delaware Practice 1126, § 1655. The nature of the writ, its purpose and limitations were defined at least as far back as the opinion by the Court of Errors and Appeals in McCoy v. State, 36 A. 81 (1897), wherein it was stated:
"Mandamus, according to the uniform current of our well-considered adjudications, is, in this state, a prerogative writ, in the supervisory sense, issuable exclusively by our superior court, not of course, but only in the exercise of a sound judicial discretion. It is a remedial writ, the appropriate functions of which are the enforcement of the performance of duties, imposed by law, by officers and others who neglect or refuse to perform their duty. The remedy is extraordinary, and, if the right is doubtful, or the duty discretionary, or the power to perform the duty wanting or inadequate, or if there be any other specific and adequate legal remedy, this writ will not, in general, be allowed. The right which it is sought to protect must be clearly established, and the writ is not granted in doubtful cases. When substantial doubt exists as to the duty whose performance it is sought to coerce, or as to the right or power of the officer to perform the duty, the relief will be withheld, since the granting of the writ in such cases would render the process of the court nugatory and fruitless."
See also Webb v. Diamond State Telephone Company, Del.Ch., 237 A.2d 143 (1967).
The legal issue in the appeal is simply whether plaintiff has been given a statutory right (and defendants a corresponding legal duty) which may be enforced in a mandamus proceeding.
III
The statute under which the writ is sought, 14 Del.C. § 4010, provides in part:
"Whenever it appears to the Board of Education or the exclusive negotiating representative that a persistent disagreement exists with respect to salaries, employee benefits and working conditions... concerning which the parties have been negotiating, either the Board of Education or the exclusive negotiating representative may request mediation by any method mutually agreed upon. In the absence of such an agreement, and within 10 days, the Board of Education and the exclusive negotiating representative should select a mediator by mutual agreement. In the absence of such agreement, and within another 10 days, a mediation committee, which shall consist of 3 persons, 1 selected by the exclusive negotiating representative, 1 selected by the Board of Education, and a third person selected by mutual agreement of both parties, shall be formed. The third person mentioned above will serve as chairman of the mediation committee.
In the event that fact-finding is requested by either party, a fact-finding committee will be selected by the method described above for mediation."
*211 Plaintiff argues, and the Trial Court agreed, that § 4010 imposes a duty on the Board to submit to fact-finding on request. If such a duty be clear, under the tests stated above, the writ may properly issue to enforce a statutory duty imposed on a school board. 52 Am.Jur.2d Mandamus § 232.
If the statute imposes a ministerial duty, it is plain that a prerequisite to the existence of that duty is the formation of a fact-finding committee. That in turn can only be accomplished by "mutual agreement" of the parties in selecting the third member who acts as chairman of the committee.
Plaintiff asks that the Board be compelled to submit to fact-finding but since the statutory scheme requires mutual agreement as a condition precedent to fact-finding, we must determine if the act of agreement can be compelled by mandamus. See 52 Am.Jur.2d Mandamus § 83.
We think that it may not. Agreement by its nature presumes the power and discretion to disagree until and unless there is a meeting of the minds of the parties in the same intention. Compare Stuckert v. Cann, Del.Super., 111 A. 596 (1920). Under the statute there is discretion to agree or disagree as to each nominee for the chairmanship. To be ministerial the duty must be prescribed with such precision and certainty that nothing is left to discretion or judgment, 55 C.J.S. Mandamus § 63a, p. 100, while the act itself is one that must be performed in a prescribed manner without regard to the actor's judgment as to its propriety or impropriety. Case v. Daniel C. McGuire, Inc., 53 N.J.Super. 494, 147 A.2d 824 (1959).
The statute here does not circumscribe the discretion which inheres in the "agreement." Indeed, endless rounds of nominations without agreement are possible under the statute. Mandamus cannot force the parties to perform the discretionary act of agreement. While the writ may compel the exercise of official discretion, it may not interfere with the manner in which it is exercised nor force a particular result. Borough of Eatontown v. Danskin, 121 N.J.Super. 68, 296 A.2d 81 (1972); 52 Am.Jur.2d Mandamus § 78.
It is thus an ineffectual remedy and the writ should not issue where it cannot provide an effective and enforceable remedy. See State ex rel. Sloan v. Hazzard, Del.Super., 171 A. 454 (1933); cf. State ex rel. Smith v. Carey, Del.Supr., 112 A.2d 26 (1955); 55 C.J.S. Mandamus § 11, p. 36.
We conclude that while fact-finding may be a ministerial duty under § 4010, it is dependent on the exercise of a discretionary duty (to "mutually agree" to a chairman of the committee) which may not be compelled by mandamus.[2]
Reversed.
NOTES
[1] At oral argument plaintiff's counsel filed an affidavit suggesting that the appeal is moot but, in view of the substantial public interest in the statute, we consider the merits of the appeal under the well-established public-interest-exception-to-the-mootness doctrine. Cf. State ex rel. Traub v. Brown, Del.Supr., 197 A. 478 (1938); 5 Am.Jur.2d Appeal and Error § 768. See Annot., 132 A.L.R. 1186.
[2] The statute before the Court in Capital Educators Association v. Camper, Del.Ch., 320 A.2d 782 (1974), (14 Del.C. § 4008), differs in this critical aspect. It does not require a result reached by discretionary means. The statute imposes a duty to meet and confer and to negotiate, not to reach an agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263529/ | 336 A.2d 856 (1975)
Carroll CARON
v.
Dr. Loring PRATT.
Supreme Judicial Court of Maine.
April 23, 1975.
Jerome G. Daviau, Waterville, for plaintiff.
Mahoney, Robinson, Mahoney & Norman by Lawrence P. Mahoney, Portland, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
POMEROY, Justice.
This action, charging defendant with malpractice, is before us on appeal from the direction of a verdict for the defendant.
We deny the appeal.
The plaintiff underwent a tonsillectomy, performed by the defendant, on September *857 29, 1966. No apparent complications having developed, plaintiff was discharged from the hospital shortly thereafter. His readmission five days later was occasioned by the fact that he was experiencing some bleeding while at home.
During the early morning hours of October 5, he began "spitting up blood." He was seen in the hospital by the defendant, who anesthetized him and "sutured the bleeding blood vessel." Later, during the afternoon of the same day, another more serious bleeding episode occurred. The defendant was not in the City at the time but was notified by telephone of plaintiff's condition. He discussed the case with another physician on duty at the hospital, requesting him to look after plaintiff until he could get there. By the time defendant arrived at the hospital a surgical procedure involving an incision in the neck and ligation of part of the branches of the external carotid artery had been partially completed. The attending surgeon's report included the following findings:
"There were two fair-sized holes in what appeared to be a large vessel, and they were pumping out blood. It was impossible to put any sutures in this region."
Plaintiff's condition stabilized somewhat thereafter, although two subsequent bleeding episodes on October 10th and October 14th required further suturing, and eventually ligation of all remaining major branches of the external carotid artery. On October 31, 1966, plaintiff was discharged from the hospital.
At trial, plaintiff availed himself of the provisions of Rule 43(b) M.R.Civ.P., which allowed him to call the defendant as his witness, interrogate him by leading questions, and impeach and contradict him in all respects as if he had been called by an adverse party. His obvious purpose in doing so was to elicit from the defendant himself those facts which would prove the latter's failure to exercise reasonable care in his treatment of the case.
Defendant testified essentially that the surgical procedure he employed in this case was the same normal careful procedure he had employed in performing over 8,000 other tonsillectomies.
It was his experience, he testified, that in the ordinary course of post-operative healing, all tonsillar fossae became infected to a greater or lesser degree, causing some necrosis of the blood vessels in the localized area. He attributed the two holes in plaintiff's artery to this "infectious process" in the throat region which erodes the blood vessels.
That the holes could not have been caused by any manual imprecision during the original surgery was patent, in his opinion, because
"If you create a hole and rent at the time of surgery in an artery like this, you would be flooded with blood, so you would know it right then, and you wouldn't find it out seven days later."
To discredit defendant's testimony attributing plaintiff's bleeding to a diseased blood vessel, plaintiff offered into evidence a deposition taken from a Massachusetts physician specializing in internal medicine and neurology. That deposition read, in material part:
"Question: Now, first Doctor, whether an artery which has a rent or a hole in it can this occur without trauma?
The Witness: No, it cannot.
Question: Now once there is a rent or hole can it be sutured and closed?
* * * * * *
Answer: Yes, the artery can be sutured."
The trial Justice sustained defendant's objection to the admission of the proffered deposition on the grounds the physician
". . . does not describe what he contends would be a type of rent or hole he was talking about, he does not refer to the records or the notes of the review of the material that was made available *858 to him. He does not in any way describe what he called `trauma,' whether it is from an outside force, or a result of a disease. And he does not qualify as an expert in the field of otolaryngology."
Plaintiff did not present any medical or expert testimony other than the disputed deposition.
At the close of plaintiff's evidence, the Court in directing a verdict for defendant, observed that neither party had called to the stand the two surgeons who had treated plaintiff in defendant's absence although both physicians were present and available as witnesses throughout the trial. The defendant's testimony assigning the cause of plaintiff's bleeding to an unavoidable inflection was therefore not contradicted by any direct medical evidence attributing the bleeding to any act or omission on the part of the defendant.
With the evidence in this posture, the plaintiff had failed to establish a case which would warrant submission of the issue of defendant's negligence to the jury.
The doctrine of res ipsa loquitur was unavailable to plaintiff in the opinion of the Court, because
"Negligence on the part of physicians and surgeons by reason of their departure from the recognized standards of practice has to be established by medical testimony. Negligence will not and cannot be presumed and cannot be inferred from the occurrence alone, and there is testimony only that the patient developed an infection in the area under treatment, and this does not in and of itself raise a presumption or inference of negligence."
We consider the ruling of the trial Justice to be substantially a correct statement of the law of this State.
Plaintiff advances the argument that the deposition of the Massachusetts specialist constituted legally competent expert evidence that the unusually excessive bleeding could not have been caused by disease. Therefore, he says, its admission would have generated an issue for the triers of fact.
Failing a favorable ruling on the admissibility of the deposition however, plaintiff places his reliance on the doctrine of res ipsa loquitur. That rule, he urges, operates to supply an inference of negligence, sufficient to take the case to the jury notwithstanding the absence of any direct medical evidence to indicate that plaintiff's damage was caused by the failure of defendant to exercise reasonable care and diligence in his treatment of the case. Specifically, plaintiff claims the introduction of evidence that "unusual" and unexplained bleeding occurred coincidentally with the performance of surgery performed by the defendant, standing alone, raises an inference of the latter's negligence.
Established by the evidence was (a) that the defendant had performed a tonsillectomy, (b) that following the surgery there was unusual bleeding from the area of the tonsillectomy, and (c) two rents or holes were observed in an artery some five days after the surgery from which holes there was excessive bleeding.
The gap between the evidence and legal liability becoming fixed on the defendant was that there was no evidence in the case establishing causal connection between defendant's conduct and the unusual post-surgical happenings.
The question then becomes, had the deposition of Dr. England been received in evidence, would it have closed the gap and thus created an issue for a decision of the jury?
The relevant portion of Dr. England's deposition was that the rents or holes could not have existed without trauma. At no time did he explain what he meant by *859 "trauma." There was no evidence in the case which could permit a reasonable jury to conclude that the defendant had not employed acceptable surgical procedures.
We consider the deposition was properly excluded from evidence on either of the following grounds:
1. It had no bearing on the question whether or not the defendant had employed acceptable surgical procedures in performing the tonsillectomy.
2. The general statement that arteries do not develop holes or rents without trauma in the absence of any definition of the term "trauma" was not relevant.
Such testimony can, in no way, be characterized as an expression of opinion that defendant had violated community standards of proper medical treatment. Nor does it constitute evidence that the surgical procedure undertaken by defendant was the legal cause of plaintiff's injury. It was the responsibility of the trial Justice to determine, in the exercise of sound discretion, the relevancy of the proffered testimony. Turgeon v. Lewiston Urban Renewal Authority, Me., 239 A.2d 173, 174 (1968). Because the proffered testimony had no probative value on the issue of defendant's legal liability it was properly excluded.
However, assuming for the purposes of argument only, the testimony had probative value, the record nevertheless demonstrates that the witness was unqualified in any event to express an opinion as to the probable negligence of this defendant.
Having stated that he was a specialist in internal medicine and neurology, the witness conceded that he had never performed a surgical procedure. While we need not decide whether a physician in general practice or specializing in a different field of medicine is ever qualified to testify as an expert as to the proper surgical procedures to be undertaken by a surgeon specializing in otolarynology, we believe it was well within the wide discretion of the trial Justice to exclude as incompetent the opinion of a physician specializing in a wholly unrelated and non-surgical branch of medicine.
"Whether this witness was qualified to testify as an expert, was a question of fact for the presiding judge, and his decision of such a question is usually final. In extreme cases, where a serious mistake has been committed through some accident, inadvertence, or misconception, his action may be reviewed. This is not such an instance." Fayette v. Chesterville, 77 Me. 28, 33 (1885).
Defendant's legal obligation to the plaintiff was clearly defined in Coombs v. King, 107 Me. 376, 78 A. 468 (1910).
"The measure of a physician's legal responsibility has been stated many times by this court. He contracts with his patient that he has the ordinary skill of members of his profession in like situation, that he will exercise ordinary or reasonable care and diligence in his treatment of the case, and that he will use his best judgment in the application of his skill to the case. . . ." 107 Me. 376, 378.
Proof of an unfavorable result, without more, will not suffice to establish the liability of a physician. Downer v. Veilleux, Me., 322 A.2d 82 (1974); Duguay v. Pomerleau, Me., 299 A.2d 914 (1973).
" . . . the plaintiff must prove that the poor result was caused either by the defendant's lack of that degree of skill and knowledge ordinarily possessed by physicians in his branch of medicine, or, by his failure to exercise his best judgment in the application of that skill, or, by his failure to use ordinary care in performing the operation or in administering the treatment involved." 322 A.2d 82, 87.
*860 In Downer, the plaintiff sustained multiple fractures and injuries in an automobile accident. Defendant, a general surgeon who ministered to plaintiff upon her admission to the hospital, elected not to reduce the fracture of the femoral neck. The bone did not heal properly. To establish defendant's negligence in failing to reduce the fracture, in applying traction instead of another recognized form of treatment, and in failing to consult with an orthopedic specialist, plaintiff introduced the testimony of Dr. England, an internist-neurologist. The sum of Dr. England's testimony was that the plaintiff did experience a "poor result," the exact cause of which could not be stated with certainty, and that it was "bad practice" not to have consulted a specialist. We held that in the absence of any direct medical evidence to show the objective standard of care required of the defendant, and his departure from such recognized practice, a verdict for defendant was properly directed.
Similarly, in Cyr v. Giesen, 150 Me. 248, 108 A.2d 316 (1954), this Court denied an appeal from the granting of a nonsuit for defendant where the expert testimony, although establishing that plaintiff had developed aseptic necrosis of the femur following a transcervical fracture of the bone failed to indicate that defendant had breached any recognized standards of treatment or care.
Cyr held that where the exercise of proper skill or treatment on the part of a physician is in issue, expert medical testimony is essential, unless the consequences are of such extraordinary character that a layman is able to say as a matter of common knowledge they would not have followed had due care been exercised.
"The case under consideration concerns such technical and involved medical procedure that it rules out any possibility of understanding on the part of a layman as to its medical nature and it is therefore self evident that this is not a case falling within the exception of the general rule relating to expert medical testimony in malpractice cases." 108 A. 2d 316, 318.
While there is no express mention in Cyr of the doctrine of res ipsa loquitur, the Cyr rule states a requirement that has been uniformly attached to the invocation of that doctrine in medical malpractice actions. Lambert v. Soltis, 422 Pa. 304, 221 A.2d 173 (1966); Hasemeier v. Smith, Mo., 361 S.W.2d 697 (1962); Lyu v. Shinn, 40 Hawaii 198 (1953); Hornbeck v. Homeopathic Hospital Association, Del.Super., 197 A.2d 461 (1964); Hoffman v. Naslund, 274 Minn. 521, 144 N.W.2d 580 (1966).
Moreover, it has been specifically recognized that the mere fact that a patient develops an infection in the area under treatment does not raise an inference of negligence on the part of the physician. Haliburton v. General Hospital Society, 133 Conn. 61, 48 A.2d 261 (1946); Harmon v. Rust, Ky., 420 S.W.2d 563 (1967); Pfeifer v. Konat, 181 Neb. 30, 146 N.W.2d 743 (1966); Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964); Smith v. Curran, 28 Colo.App. 358, 472 P.2d 769 (1970).
In view of our conclusion that a verdict for defendant was properly directed, we have no need to discuss the other issues raised by this appeal.
The entry must be,
Appeal denied.
All Justices concurring. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336011/ | 136 S.E.2d 623 (1964)
262 N.C. 94
STATE
v.
Jack W. FRANKS.
No. 584.
Supreme Court of North Carolina.
June 12, 1964.
*624 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, and Asst. Atty. Gen. Richard T. Sanders, for the State.
Butler, High & Baer, by L. Sneed High, Fayetteville, for defendant appellant.
PARKER, Justice.
Defendant assigns as error the admission in evidence, over his objection, of seven volumes containing a loose-leaf record of sales of debentures of Franks' Finance Company to certain persons, which were marked State's Exhibits 1 through 7, both inclusive. Defendant contends these volumes were improperly admitted in evidence, for the reason the State did not properly identify and authenticate them.
The first witness for the State was E. B. Rannells, Jr., who lives in Sanford, North Carolina, and was employed by Franks' Finance Company from the middle of June 1955 through September 1959. He testified in substance: He was employed as a salesman to sell burial lots from the beginning of his employment through the early part of 1957; after that he sold debentures. He was shown seven volumes by Mr. Rollins, a prosecuting officer for the State, which were marked for identification State's Exhibits 1, 2, 3, 4, 5, 6, and 7, and asked to look at them and state what they were, if he knew. He replied they were records of debenture sales for Franks' Finance Company, and that he had seen them before in the office of Franks' Finance Company on Davie Street in the city of Greensboro. That these volumes were loose-leaf records of debenture purchases from Franks' Finance Company by various individuals. The volume marked State's Exhibit 6, on page 142, contains a record of a $1,000 debenture sold by him to Mrs. Estelle Day Clayton; on page 122 of the same volume appears a record of a sale on 3 January 1958 by him of a $100 debenture to Dr. Ernest H. Reynolds; on page 278 of the volume marked State's Exhibit 7 appears a record of a sale by him of a $2,000 debenture to Lloyd E. Watson; and on page *625 588 of the volume marked State's Exhibit 5 appears a record of a sale made by him to a Marshall B. McBryde. Jack W. Franks was the president of Franks' Finance Company during the period of his employment.
At this point in his testimony the State was permitted, over defendant's objection, to introduce these seven volumes in evidence. Immediately thereafter Rannells, after stating that Mrs. Jettie Franks was an officer of the company during his period of employment, testified: "Mr. Franks, the defendant, signed my compensation with the company and gave me instructions in reference to my employment; Mr. Franks was my boss."
This is the substance of his testimony on cross-examination, except when quoted: He never worked in the Greensboro office. "No records were kept under my supervision except my own personal records." He did not participate in the making of any of these records marked State's Exhibits 1 through 7 and did not make any entries in them. The only part of these records that he inspected were those that related specifically to him. He first inspected these volumes of records in their entirety in the municipal court in the city of Greensboro. "I had seen Jack W. Franks sign one of these debentures. I had stated in recorder's court that I have seen him sign a lot of checks, but, actually, I never saw him sign debentures.'"
Rannells testified in substance on redirect examination: During the period of his employment he attended a sales meeting in the office practically every Monday. Defendant Franks was always there. He waited to get signed debentures and carried them away and delivered them.
The next witness for the State was James Darrell Lemons, a debenture salesman with Franks' Finance Compay from March 1961 to August 1963. He testified in part in substance: He frequently brought orders for the purchase of debentures of Franks' Finance Company to its home office at 807 Summit Avenue, Greensboro. Within a period of one year he saw defendant Franks sign probably a dozen debentures. Defendant Franks was president of Franks' Finance Company.
William W. Coppedge is employed as Security Deputy in the office of the Secretary of State of North Carolina. The record shows that Mr. Rollins handed Mr. Coppedge the volumes marked State's Exhibits 1 through 7. Immediately thereafter Coppedge testified in respect to these volumes: "I have seen them before; they were delivered to my office in Raleigh. I requested that they be delivered; the request was made on Mr. Franks, Mr. Joseph Franks, the attorney." Coppedge testified in substance: The records delivered in his office were the seven debenture books marked State's Exhibits 1 through 7.
On cross-examination Coppedge testified in respect to these volumes marked State's Exhibits 1 through 7 in substance, except when quoted: These books were delivered to him personally in a big box on 17 July 1963. They were not delivered to him by defendant or by an employee of Franks' Finance Company. They were delivered to him by a Mr. Starling, who identified them by telling him they were the records which he had requested from Franks' Finance Company, and which he had been asked to bring to his office. He could not find anyone in Franks' Finance Company who knew anything about them. "I had requested by telephone certain records from the gentleman (designating Mr. Joseph D. Franks who was sitting at Mr. High's left); they were not delivered for some time and then they were delivered by Mr. Starling; I only looked at the books and checked them against a list that I had been asked to sign, and no one has ever pointed out to me what these books are and I have never gone over these books with anyone who was charged with the preparing of the books." He gave Mr. Starling a signed receipt for the records he brought him. The books marked State's Exhibits 1 through 7 were in his possession until they were carried to Greensboro by the *626 State Highway Patrol on the day of the preliminary hearing and were then turned over to the court. They were the same records delivered to him in Raleigh by Mr. Starling. The court impounded these records.
The State's evidence further shows that the defendant was given a preliminary hearing in August 1963 in the municipal county court of Guilford County. The books marked State's Exhibits 1 through 7 were impounded by the court at that hearing and turned over to Mr. Rollins after the hearing. Mr. Rollins carried them to the office of the State solicitor where they were kept under lock and key until the trial.
James Lane Thomas, who lives in Greensboro, North Carolina, testified in substance: He bought some debentures from Jack W. Franks. He talked with him in his office several times. He bought a $1,000 debenture to start with, then a little later on in the same year he bought another $1,000 debenture, and the rest of the debentures were $100, $200, or $300 debentures; the debentures were on Franks' Finance Company. Mr. Franks was the president of the company. Mrs. Dolly Nichols Buckner, who lives in Winston-Salem, North Carolina, testified in substance: She bought $4,000 of debentures of Franks' Finance Company. She purchased these debentures after talking with Jack W. Franks, who told her he was the president of the company. The State further offered evidence to show that Ernest Oakley purchased $5,000 of debentures of Franks' Finance Company from Emmett Fulk, and the signature of Jack W. Franks on the debentures was in the handwriting of Jack W. Franks. Later he told Jack W. Franks he would like to have his money back and Franks told him they would probably be able to pay some of it back in 60 to 90 days, but he has never received any of it back. Mrs. Molly P. Cockerman, a widow, who lives in Winston-Salem, North Carolina, bought $800 of debentures of Franks' Finance Company, and the name of Jack W. Franks was on these debentures in his handwriting. Her check was made payable to Franks' Finance Company, and it has been paid.
That there is evidence of identity that the books marked State's Exhibits 1 through 7 were records of Franks' Finance Company of debenture sales seems not open to debate. E. B. Rannells, Jr., testified that he had seen these books in the office of Franks' Finance Company in Greensboro; that they were records of debenture sales for this company; and that the book marked State's Exhibit 6 contained a record of a $1,000 debenture sale by him to Mrs. Estelle Day Clayton and of a $100 debenture sale by him to Dr. Ernest H. Reynolds, and that the book marked State's Exhibit 7 contained a record of a $2,000 debenture sale by him to Lloyd E. Watson. Rannells further testified: "No records were kept under my supervision except my own personal records." William W. Coppedge, Security Deputy in the office of the Secretary of State, requested that Franks' Finance Company deliver to him in his office its records of debenture sales. On 17 July 1963 a Mr. Starling delivered to Coppedge in his office the seven debenture books marked State's Exhibits 1 through 7 and said they were the records which Coppedge had requested from Franks' Finance Company. See LeMaster v. People, 54 Colo. 416, 131 P. 269.
Defendant contends that the State's evidence does not show by whom the entries in these books were made or authorized and does not show that they were made in the regular course of business, at or near the times of the transactions involved, and consequently the books were improperly admitted in evidence.
A similar contention was made by the defendant and rejected by the Court in State v. Rhodes, 202 N.C. 101, 161 S.E. 722, a prosecution of a bank president on a charge of embezzlement, abstraction, and misapplication of the funds of the bank, and for making and causing to be made a *627 false entry in the records of the bank. The Court said:
"It is contended, however, that the evidence does not show by whom the entries in the books were made or authorized, and that the testimony of the accountant and the liquidating agent in explanation of the entries should have been excluded. The supporting argument proceeds on the theory that the records and books of a corporation may not be received in evidence for any purpose unless it is shown or admitted that the entries were made by an authorized servant or agent of the corporation. It is not doubted that cases apparently of such tenor may be cited, but the question of their application to given cases must be solved by reference to the matters in controversythe object and scope of the litigation and the particular facts admitted or established.
"The First Bank & Trust Company was created by statute; it was subject to public supervision; its rights, powers, and privileges were prescribed by law. It was presumed in the exercise of its powers to have appropriate books and to keep a correct record of its transactions. That it had such books is not denied. Proof of their identity as the property of the bank raised the additional presumption that the entries and records which they contain were made by an accredited clerk or agent of the corporation. Glenn v. Orr, 96 N.C. 413, 2 S.E. 538; Buncombe Turnpike Co. v. McCarson, 18 N.C. 306."
The State's evidence shows that James Darrell Lemons saw defendant, president of Franks' Finance Company, sign probably a dozen debentures of Franks' Finance Company in one year; that the $5,000 of debentures of Franks' Finance Company sold to Ernest Oakley and the debentures of the same company sold to Mrs. Molly P. Cockerman were signed Jack W. Franks in the handwriting of Jack W. Franks; and that Ernest Oakley later told Jack W. Franks he would like to have his money back, and Franks told him they would probably be able to pay some of it back in 60 to 90 days, but he has never received any of it back. This evidence tends to show an actual connection between defendant and the contents of the debenture sales books of Franks' Finance Company marked State's Exhibits 1 through 7.
It seems to be the general rule under modern business conditions that entries or statements in corporate books or records are admissible in evidence against its officers in a criminal prosecution only if there is evidence tending to show that there exists some kind of actual connection between the officers and the contents of the books or records, predicated upon some facts other than their mere status as corporate officers. Annotation 154 A.L.R., p. 281. See 32 C.J.S. Evidence § 699, p. 596, Admissions; Stansbury's N.C. Evidence, 2d Ed., § 155, p. 392; 20 Am.Jur., Evidence, § 977.
Even if we concede that the State had not laid the proper foundation for the introduction in evidence of the books marked State's Exhibits 1 through 7 at the time the trial court permitted them to be introduced in evidence, the error was harmless, for the reason that the State before it rested its casedefendant introduced no evidencedid lay a proper foundation for their admission in evidence. Smith Builders Supply Co. v. Dixon, 246 N.C. 136, 97 S.E.2d 767. Defendant's assignment of error to their admission in evidence is overruled.
William W. Coppedge, Security Deputy in the office of the Secretary of State of North Carolina was asked: "What was the total of debentures sold that you found from these Exhibits 1 through 7?" He replied: "I can tell you exactly if you'd like for men to look at my records, but I *628 am sure it was more than $1,688,000." Defendant assigns the question and answer as error. Defendant also assigns as error the admission in evidence over his objection of the testimony of E. B. Rannells, Jr., that in certain of the books marked State's Exhibits 1 through 7 were entries of debenture sales by him to certain individuals, and that the books marked State's Exhibits 1 through 7 were loose-leaf records of debenture sales of Franks' Finance Company. Rannells testified that he had seen these books marked State's Exhibits 1 through 7 in the office of Franks' Finance Company in the city of Greensboro, and that he had inspected these books in respect to entries relating specifically to him. Even if they were permitted by the court over objection to testify as to the entries in these books before a proper foundation for their admission in evidence had been laid, the error was harmless, for the reason that the State before it rested its case had laid a proper foundation for their admission in evidence. All these assignments of error are overruled. In State v. Rhodes, supra, it is said:
"They [T. R. Grubbs and H. G. Kramer] examined the books, made tabulations and calculations, and testified as to the results of their investigation. This mode of exemplifying the records of an insolvent bank has received the approval of this court in State v. Hightower, 187 N.C. 300, 121 S.E. 616. It is founded on considerations of policy and convenience, if not of necessity, and commendably results in relaxation of the rigid rule which would require the production of all the employees, who through an indefinite period had made entries in books of the corporation. Where a fact can be ascertained only by the inspection of a large number of documents made up of many detailed statements, it would be practically out of the question to require the entire mass of documents and entries to be read by or in the presence of the jury. As such examination cannot conveniently be made in court, the results may be shown by the person who made the examination. Wigmore on Evidence (2d Ed.) § 1234; Chamberlayne on Evidence, § 2317. The production of the documents and the privilege of cross-examination and of the introduction of evidence afford ample protection of the defendant's rights."
Defendant further assigns as error the testimony of witnesses that debentures bought by them and which were introduced in evidence were debentures of Franks' Finance Company. These assignments of error are without merit.
Defendant assigns as errors that the trial court, over his objections, permitted William W. Coppedge, Security Deputy in the office of the Secretary of State of North Carolina to testify that a search of the books and records in the office of the Secretary of State disclosed that a number of debentures of Franks' Finance Company sold in this State to certain persons were required to be registered in this State pursuant to G.S. Ch. 78, and were not registered as required by our statute; that no application for their registration had been filed as required by our statute; that these debentures were not exempted securities as set forth in G.S. § 78-3; that defendant Jack W. Franks had never made application for registration as a salesman or broker of securities in the office of the Secretary of State; and that the sales of debentures of Franks' Finance Company were not exempt transactions under our statute.
Coppedge testified on cross-examination:
"I am a lawyer. There are securities which are exempt under the North Carolina Securities Act, and whether a security is exempt or not is a matter of law and it does not depend upon anyone's opinion as to whether they are exempt; if they comply with the law, they are exempt; one person *629 must determine whether or not the law is applicable; the law itself cannot decide whether or not something is exempt; in a majority of the cases I am the individual who determines whether or not the law is applicable; there are securities transactions which are exempt under the North Carolina law; I am familiar with them; I am familiar with all the exemptions; it is a matter of law whether a transaction is exempt or not; a security might be non-exempt and the transaction itself exempt, or an exempt security can be sold under certain circumstances to persons other than by broker-dealers; if the transaction is exempt from the Securities Law, it may be sold under the North Carolina Securities Act."
After Coppedge had finished his testimony, the State called three witnesses to the stand. After these three witnesses had finished their testimony, Coppedge was recalled to the stand. On redirect examination he testified, over objection by the defendant, that the sales of debentures of Franks' Finance Company to purchasers, shown by its debenture records marked State's Exhibits 1 through 7 were not exempt from the operation of the security laws of North Carolina requiring registration of securities. Then Coppedge on recross-examination testified as follows: "I am basing my answers on my opinion as to the interpretation of the security laws and as instructed by Mr. Eure, who has administered this law for many, many years. I base my answers on my own opinion and as I have been instructed by Mr. Eure."
G.S. § 78-2, Definitions, in (g) states that "[t]he term `securities' or `security' shall include any * * * debenture * * *." G.S. § 78-13 provides: "The Secretary of State shall keep and maintain a permanent register of qualified securities and shall enter therein the names and amounts of all securities, the privilege of offering which to the public in the State of North Carolina has been granted by the Secretary of State, and the date thereof, and such other data as the Secretary of State may deem proper. All securities admitted to record and recorded in such register shall be deemed, for the purpose of this chapter, to have been fully qualified for sale in the State of North Carolina and thereafter any person may lawfully sell or offer for sale any part of such issue as recorded; subject, however, to the provisions of this chapter. Such register shall be open to inspection by the public." G.S. § 78-19, so far as relevant here, provides: "No dealer or salesman shall carry on business in the State of North Carolina as such dealer or salesman, or sell securities, including any securities exempted under the provisions of § 78-3, unless he has been registered as dealer or salesman in the office of the Secretary of State pursuant to the provisions of this section. Every applicant for registration shall file in the office of the Secretary of State, pursuant to the provisions of this section, an application in writing, duly signed and sworn to, in such form as the Secretary of State may prescribe, giving particulars concerning the business reputation of the applicant."
The testimony of William W. Coppedge, Security Deputy in the office of the Secretary of State of North Carolina to the effect that a search of the books and records in the office of the Secretary of State disclosed that a number of debentures of Franks' Finance Company sold to certain persons in North Carolina were not registered in the permanent register in the office of the Secretary of State and that a similar search disclosed that Jack W. Franks had never made application for registration as a salesman or broker of securities in the office of the Secretary of State, while of a negative nature, was admissible in evidence. Duren v. Arkansas State Board of Optometry, 211 Ark. 565, 201 S.W.2d 578, Reh. Den. 19 May 1947; Brown v. State, 150 Tex.Crim.App. 285, 201 S.W.2d 50; Wigmore on Evidence, 3d Ed., Vol. 5, § 1633(6), p. 519.
*630 Defendant contends that the trial court erred in permitting Coppedge, over his objections, to express an opinion that the debentures of Franks' Finance Company sold in this State to certain individuals were required to be registered in the office of the Secretary of State by G.S. Ch. 78 and that such sales by Franks' Finance Company were not exempt transactions.
G.S. § 78-3 recites a long list of securities to which our Securities Law does not apply. G.S. § 78-4 recites a long list of transactions exempted from the operation of our Securities Law.
G.S. § 78-5 reads as follows: "It shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, indictment or proceeding laid or brought under this chapter in either a court of law or equity, or before the Secretary of State, in either a civil or a criminal action or suit. The sale, unless the transaction is exempted from the operation of this chapter, of any security not exempt from the provisions of this chapter as hereinbefore provided and not admitted to the record and recorded as hereinafter provided, shall be prima facie evidence of the violation of this chapter and the burden of proof of any such exemption shall be upon the party claiming the benefit thereof."
G.S. § 78-6, so far as relevant here, reads: "No securities except of a class exempt under any of the provisions of § 78-3 or unless sold in any transaction exempt under any of the provisions of § 78-4 shall be offered for sale or sold within this State unless such securities shall have been registered by notification or by qualification as hereinafter defined * * *."
G.S. § 78-23 sets forth punishment for a violation of our Securities Law.
State v. Hightower, 187 N.C. 300, 121 S.E. 616, was a criminal prosecution tried upon an indictment charging J. H. Hightower and one H. H. Massey, president and cashier, respectively, of Central Bank and Trust Company located in Raleigh, North Carolina, with feloniously receiving money, checks, drafts or other property as deposits in said bank on 13 January 1922, when they and each of them had knowledge of the fact that said bank was insolvent and unable to meet its depository liabilities as they became due in the regular course of business, in violation of chapter 4, section 85, Public Laws 1921. The jury acquitted Massey and convicted Hightower. From a judgment of imprisonment, Hightower appealed. The Court, speaking by Stacy, J., began its opinion by quoting the relevant parts of section 85 of the statute which is headed "Insolvent banks, receiving deposits in." The opinion then states that one of the essential elements of the offense condemned by the statute, which the State must prove beyond a reasonable doubt to obtain a conviction, is "(2) that the bank in question was insolvent at the time the alleged deposits were received therein." The opinion then goes on to state in substance that the principal evidence offered by the State is that of Clarence Latham, State Bank Examiner, and W. S. Coursey, an expert accountant, or auditor employed by the banking department to make an audit of the bank, to the effect that, in the opinion of said witnesses, the Central Bank and Trust Company was insolvent on 13 January 1922. These opinions were based upon an examination and investigation of the affairs of the bank, made by the two witnesses in the discharge of their official duties. Defendant assailed the competency of this evidence upon two grounds: First. Because the witnesses were allowed to express their opinions upon one of the essential facts necessary to constitute the offense charged, and which the jury alone was impaneled to decide. Second. Because, as a prerequisite to the expression of such opinions, the witnesses were not required to state the facts upon which they based their conclusions. The Court in its opinion, 187 N.C., at p. 304, 121 S.E., at p. 619, speaking to the subject said: "The business of examining banks undoubtedly falls within the classification of trades or pursuits, requiring *631 special skill or knowledge, and hence one versed in its intricacies, we apprehend should be permitted to speak as an expert. It is not questioned, on the instant record, but that the two witnesses offered by the state are competent to speak as experts in their field, or in their line of work." At p. 307 of our Reports, 187 N.C., and at p. 620 of the 121 Southeastern report, the Court said: "Applying these principles to the instant case, we think the better practice would have been for Latham and Coursey to have stated the facts or to have detailed the data observed or discovered by them before drawing their conclusions or giving their opinions in evidence, but we shall not hold it for legal or reversible error that such was not required as a condition precedent to the admission of their opinions in evidence before the jury. State v. Felter, 25 Iowa, 75; State v. Foote, 58 S.C. 218, 36 S.E. 551. Speaking to a similar question in Com. v. Johnson, 188 Mass. [382] p. 385, 74 N.E. 940, Braley, J., said: `By this form of examination no injustice is done, for whatever reasons even to the smallest details that an expert may have for his opinion can be brought out fully by cross-examination.'" The Court held that where an expert has made a proper examination of bank's assets, he may testify that bank was insolvent at a certain date.
This Court made a similar holding in State v. Brewer, 202 N.C. 187, 162 S.E. 363.
In Bank of Vance v. Crowder, 194 N.C. 331, 139 S.E. 604, the Court held that the admission of the testimony of an expert witness as to the entries found in the books of a bank kept by the cashier and their meaning was not improper.
The administration of our Securities Law manifestly falls within the classification of pursuits, requiring special knowledge, and "hence one versed in its intricacies, we apprehend, should be permitted to speak as an expert." The sole reference to Coppedge's qualifications in defendant's brief is, "the State did not show what, if any, qualifications William W. Coppedge had." Defendant on crossexamination elicited from Coppedge that he came to the Secretary of State's office in August 1961, and elicited further the qualifications he had in administering the Securities Law of the State as set forth above in quotations from his cross-examination and recross-examination. It seems manifest from such evidence that Coppedge was competent to speak as an expert in his line of work as Security Deputy in the office of the Secretary of State. The questions of what securities are exempted securities under G.S. § 78-3, and of what transactions are exempted from the operation of our Securities Law under G.S. § 78-4, and of what securities cannot be offered for sale or sold unless registered under G.S. § 78-6 are questions of law. The questions of whether the debentures of Franks' Finance Company sold to individuals in this State in the instant case are exempted securities under G.S. § 78-3, and of whether such sales were transactions exempted from the operation of our Securities Law under G.S. § 78-4, and of whether the debentures sold to individuals in this State in the instant case were of a class that should have been registered under G.S. § 78-6 before being offered for sale or sold within this State are questions of fact. To illustrate: We have held that what constitutes practicing law by unauthorized persons is a question of law, but whether the particular acts and methods of the defendants constituted a violation of the statute prohibiting the practice of law by unauthorized persons is a question of fact. Seawell, Attorney General v. Carolina Motor Club, 209 N.C. 624, 184 S.E. 540. See State v. Pledger, 257 N.C. 634, 127 S.E.2d 337, to the same effect. The trial court properly permitted Coppedge, because of his superior knowledge and of his manifest qualifications, to express an opinion that the debentures of Franks' Finance Company sold in this State to certain individuals were required to be registered in the office of the Secretary of State under our Securities Law, and that such debentures were not exempted securities *632 under our Securities Law, and that the sale of the debentures of Franks' Finance Company were not transactions exempted from the operation of our Securities Law.
Our conclusion finds support in our decisions of State v. Hightower, supra, and State v. Brewer, supra.
All defendant's assignments of error to the admission of evidence are overruled.
Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence.
G.S. § 78-23(b) provides: "Whoever shall sell or cause to be sold, or offer to sell or cause to be offered for sale, any security in this State, which is not exempt under any of the provisions of § 78-3, unless sold in any transaction exempt under any of the provisions of § 78-4, and which such securities so sold, or caused to be sold or so offered for sale or caused to be offered for sale shall not have been registered as provided in this chapter, shall be guilty of a violation of this chapter, and upon conviction thereof shall be imprisoned in the State prison for a period of not less than one, nor more than five years, or fined in any sum not more than one thousand dollars ($1,000), or both." The word "whoever," used in this statute, is all embracive and includes within its terms corporations, officers and agents of corporations and all other persons.
It seems to be settled law that any officers, directors, or agents of a corporation actively participating in a violation of the provisions of G.S. § 78-23 of our Securities Law in the conduct of the company's business, or which such conduct they have actively directed, may be held criminally liable individually therefor. State v. Agey, 171 N.C. 831, 88 S.E. 726; State v. Fraser, 105 Or. 589, 209 P. 467; 19 C.J.S. Corporations § 931; 53 C.J.S. Licenses § 78, 13 Am.Jur., Corporations, § 1100. The State's evidence is amply sufficient to carry the case to the jury on the first count in the indictment. The second count in the indictment charges sales of debentures of Franks' Finance Company to Vivian M. Fulk and Lidia Duncan Clayton, but the record is bare of any evidence to support such charge of sales in the second count. The trial court erred in denying defendant's motion for judgment of compulsory nonsuit in respect to the second count in the indictment; consequently, the verdict of guilty on the second count in the indictment and the judgment imposed upon such conviction on the second count are vacated.
Defendant has a number of assignments of error to the charge. A careful study of the judge's charge to the jury fails to disclose any error sufficiently prejudicial to warrant a new trial on the first count in the indictment.
The result is this: In the trial as to the first count in the indictment, we find no error; in the trial as to the second count in the indictment, reversed.
DENNY, C. J., took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335981/ | 136 S.E.2d 882 (1964)
C. Paul JONES
v.
CITY OF MANNINGTON et al.
No. 12256.
Supreme Court of Appeals of West Virginia.
Submitted May 5, 1964.
Decided June 23, 1964.
*885 Furbee & Hardesty, Russell L. Furbee, Thomas J. Whyte, Fairmont, for appellant.
A. Blake Billingslea, Fairmont, for appellees. *883
*884 CALHOUN, Judge:
This case involves an action instituted in the Circuit Court of Marion County by C. Paul Jones against the City of Mannington, a municipal corporation, and Thelma Shaw to recover damages for personal injuries to the plaintiff and damage to his automobile caused by the falling of a boulder or large stone from a rock precipice or cliff located on the property of Thelma Shaw near Pyles Avenue, one of the public streets of the city.
Upon a jury trial, the court, at the conclusion of all the testimony, directed a verdict in favor of Thelma Shaw, and overruled a motion for a directed verdict made on behalf of the municipality. The jury returned a verdict against the city for $2,875.00 and judgment was entered on that verdict. From an order entered on February 8, 1963, by which the trial court refused to set aside the verdict and to award the defendant a new trial, the city has been granted an appeal to this Court.
The complaint is somewhat vague concerning the alleged basis of liability of the defendants, though it refers to "their concurrent negligence." From the entire record, including particularly Plaintiff's Instruction No. 1 which was read to the jury, it is obvious that the alleged liability of the municipality is based on Code, 1931, 17-10-17, as amended, which imposes liability upon a municipality to any person who sustains an injury to his person or property by reason of any street, sidewalk or alley within such municipality being out of repair.
*886 Assignments of error relied upon by the defendant in this Court may be summarized as follows: (1) The injuries to the plaintiff and his automobile were caused by his own negligence; (2) the trial court erred in authorizing the jury to return a verdict against the city on the basis of the statute previously referred to because the plaintiff did not prove that the city failed to perform any duty imposed upon it; (3) the evidence shows that the plaintiff is not entitled to recover because of his contributory negligence and assumption of risk; (4) the court refused to grant Defendant's Instruction No. 3-A which would have submitted the issue of contributory negligence to the jury; and (5) the court refused to grant Defendant's Instruction No. 7A which would have submitted to the jury the issue of assumption of risk.
The rock precipice or cliff is quite steep, almost perpendicular, from its base to its top. It is on and a part of a four-acre tract of land owned by Thelma Shaw. It is of natural origin. There is nothing to indicate that it has been altered in any respect by man. The evidence indicates that it is common knowledge in the community that, by operation of forces of nature, portions of the face of the cliff, consisting of stones of varying sizes, have broken loose and fallen intermittently for many years. The plaintiff, almost seventy years of age at the time of the trial, testified that he had known previously that large boulders fell from the cliff from time to time and that the consequent situation there was a dangerous one. At least since 1935, two signs have been maintained along the street, to warn persons approaching the area from both directions, bearing the following words: "FALLING ROCKS TRAVEL AT YOUR OWN RISK."
Pyles Avenue has a brick pavement fourteen feet in width. It was constructed as a public highway by the county in 1914, though in more recent years it has been maintained as a city street. The right of way is thirty feet in width. Apparently the base of the cliff is sixteen or seventeen feet from the right of way, or about thirty-one or thirty-two feet from the center of the paved portion of the street. That is to say, apparently it is approximately sixteen or seventeen feet from the edge of the right of way to the base of the cliff and that area constitutes a part of the four-acre tract of land owned by Thelma Shaw.
The stone which fell came from the face of the cliff, rather than from land at the top of and beyond the cliff. It appears without question, therefore, that the stone came from the property of Thelma Shaw. There is no contention that the stone came from within the right of way or from any other property owned by or under the control of the city. There is no contention that the falling of the stone was caused by the city street actually "being out of repair."
The basis of the plaintiff's contention appears to be that the city exercised control to some degree of the sixteen or seventeen-foot area between the right of way and the base of the cliff; that this area was used at least to some degree by the public; that consequently there devolved upon the city in these circumstances a duty to keep such area in proper repair; that it became "out of repair" by the inaction of the city in failing to take precautions to prevent injury to persons and their property; and that such precautions could have been taken by discontinuing the use of Pyles Avenue and preventing travel thereon or by the erection of a wall or fence in front of the cliff and between it and the traveled portion of the street to protect the public from falling rocks.
The accident occurred during the early afternoon of November 20, 1961. At that time the plaintiff had driven to Pyles Avenue to have some work done on his automobile at Longstreth Garage, which is located directly across the street from the cliff. The plaintiff testified that another automobile was coming out of the entrance to the garage when he arrived; that he therefore backed his automobile toward the *887 cliff and stopped while one-third or one-half of his automobile was still on the pavement; and that while his car was parked in that position, with its motor still running, the large boulder fell and struck the left rear of the car, driving it forward four to six feet. He testified that his car had been standing there less than a minute when it was struck by the boulder.
Frank Baker, aged seventy-nine, testified that he was in the garage at the time of the accident and that, when he came out of the garage after the accident, the plaintiff's "car was in the middle of the street" and that the boulder also was on the paved portion of the street. This witness and the plaintiff were the only witnesses who testified in behalf of the plaintiff concerning the occurrence of the accident and the position of the plaintiff's automobile. All witnesses who testified in behalf of the defendants concerning the accident and the position of the car, three in number, testified that both the car and the boulder were completely off the pavement on the side toward the cliff after the accident. The testimony of these three defense witnesses indicates that the rear of the plaintiff's automobile was near the base of the cliff when it was struck by the boulder.
The testimony indicates that over a period of years prior to the accident the municipality, two or three times each year, has cleared out the fallen stones between the street and the base of the cliff with a road scraper or grader. There is no evidence that the city exercised control over the area in any other manner. Various people through the years have hauled away the stones which fell from the cliff and used them for fill purposes. J. L. Longstreth testified that he has tried to keep the area cleaned out and level to prevent danger to his garage from falling rocks. He testified that his purpose in doing so has been to keep the area cleared and level so falling stones will not roll in the direction of his place of business.
It appears from the testimony that it is necessary for motor vehicles to leave the pavement partially in order to pass each other; but, since the right of way is thirty feet in width, it is obvious that it is not necessary for a motor vehicle to leave the right of way, wholly or partially, merely to pass another vehicle approaching properly from the opposite direction. The record indicates that motor vehicles were parked from time to time between the pavement and the base of the cliff, apparently in part at least beyond the right of way line and on the Shaw land. We do not believe, however, that the evidence is sufficient to establish that this portion of Thelma Shaw's land was dedicated by her and accepted by the city as a part of its public street system. Mere intermittent use by the public of private property adjacent to a public street cannot be held sufficient to constitute a dedication by the owner and an acceptance by municipal authorities of such property as a public street so as to impose liability on the municipality under the provisions of Code, 1931, 17-10-17, as amended. Michaelson v. City of Charleston, 71 W.Va. 35, pt. 4 syl., 75 S.E. 151; Zirkle v. City of Elkins, 93 W.Va. 39, 115 S.E. 875; Monk v. Gillenwater, 141 W.Va. 27, pt. 1 syl., 87 S.E.2d 537.
Counsel for the plaintiff asserts in his brief that the "undisputed evidence shows that the plaintiff was injured as the proximate result of the creation and maintenance by the City of Mannington of a dangerous nuisance." We consider that position untenable. It cannot be said that the municipality either created or maintained the dangerous situation arising from the operation of forces of nature on the private property near the city street. No allegation of this nature appears in the complaint. The case was not tried in whole or in part on such a theory. On the contrary, the case was tried on the basis of the municipality's alleged liability under the statute to which reference has been made previously; and on the basis of that *888 statute alone the liability or nonliability of the municipality must be tested and determined.
At common law, a municipality is not liable for damages caused by the negligence of its officers, agents, or employees in the exercise of governmental functions. Hayes v. Town of Cedar Grove, 128 W.Va. 590, pt. 3 syl., 37 S.E.2d 450; Hayes v. Town of Cedar Grove, 126 W.Va. 828, pt. 5 syl., 30 S.E.2d 726, 156 A.L.R. 702; Haney v. Town of Rainelle, 125 W.Va. 397, pt. 6 syl., 25 S.E.2d 207; Carder v. City of Clarksburg, 100 W.Va. 605, pt. 1 syl., 131 S.E. 349; Gibson v. City of Huntington, 38 W.Va. 177, pt. 4 syl., 18 S.E. 447, 22 L.R.A. 561; Anno. 60 A.L.R. 2d 1198. The statute upon which the action in this case is based creates a liability which did not exist at common law. Corrigan v. Board of Commissioners of Ohio County, 74 W.Va. 89, 81 S.E. 566; Hayes v. Town of Cedar Grove, 128 W.Va. 590, 595, 596, 37 S.E.2d 450, 453; Cunningham v. County Court of Wood County, W.Va., 134 S.E.2d 725, 728. The liability of the city, therefore, must be determined and limited according to the terms of the statute.
The case seems to have been tried under the theory that the liability of the municipality under the statute is absolute. The trial court properly refused instructions on the mere alleged negligence of the city in performing the governmental function of maintaining the city street. One instruction granted told the jury, quite properly, that there could be no recovery by the plaintiff if his injuries and damages "were caused wholly by his own conduct;" but the trial court refused to grant instructions which would have submitted to the jury the issues of contributory negligence and assumption of risk.
The liability of a municipality under the statute is absolute in a sense, but that means merely that liability is absolute, even in the absence of negligence and in the absence of notice of the defect, provided the cause of action itself is established within the terms of the statute. Yeager v. City of Bluefield, 40 W.Va. 484, pt. 5 syl., 21 S.E. 752; Van Pelt v. Town of Clarksburg, 42 W.Va. 218, pt. 2 syl., 24 S.E. 878; Waggener v. Town of Point Pleasant, 42 W.Va. 798, 801, 26 S.E. 352, 353; Williams v. Main Island Creek Coal Co., 83 W.Va. 464, pt. 7 syl., 98 S.E. 511; Taylor v. City of Huntington, 126 W.Va. 732, 735, 736, 30 S.E.2d 14, 16; Burdick v. City of Huntington, 133 W.Va. 724, 727, 728, 57 S.E.2d 885, 888.
A municipal corporation is not an insurer against accidents and injuries on its streets and sidewalks; nor is every defect in a street or sidewalk actionable, even though it be the cause of the injury forming the basis of the action for damages. From the municipality's standpoint, it is sufficient if its streets and sidewalks are in a reasonably safe condition for travel in the ordinary modes, with ordinary care, by day or night; and whether the street or sidewalk is in such condition is a practical question to be determined in each case by its particular circumstances. Costello v. City of Wheeling, 145 W.Va. 455, pt. 1 syl., 117 S.E.2d 513; Morris v. City of Wheeling, 140 W.Va. 78, pt. 4 syl., 82 S.E.2d 536; Van Pelt v. Town of Clarksburg, 42 W. Va. 218, pt. 1 syl., 24 S.E. 878; Yeager v. City of Bluefield, 40 W.Va. 484, pt. 4 syl., 21 S.E. 752.
"A street, sidewalk, or alley of a municipal corporation is `out of repair' within the meaning of Code, 17-10-17, when the municipal corporation permits the street, sidewalk or alley to become unsafe for ordinary and lawful use by ordinary modes and with reasonable care by day or night." Burcham v. City of Mullens, 139 W.Va. 399, pt. 1 syl., 83 S.E.2d 505. To the same effect, see Reynolds v. Town of Milton, 93 W.Va. 108, pt. 1 syl., 116 S.E. 516. Whether a street or sidewalk is "out of repair" is ordinarily a question of fact for the jury but such question should be decided by the court where the facts are undisputed or are such as would reasonably support only one conclusion. Silverthorn v. City of *889 Chester, 106 W.Va. 613, syl., 146 S.E. 614; Taylor v. City of Huntington, 126 W.Va. 732, 737, 30 S.E.2d 14, 17.
While the liability of the municipality under the statute may exist in the absence of negligence chargeable to it, the plaintiff, nevertheless, may be barred by his own contributory negligence. The question of contributory negligence is ordinarily one for the jury. Haney v. Town of Rainelle, 125 W.Va. 397, pt. 2 syl., 25 S.E.2d 207; Reynolds v. Town of Milton, 93 W.Va. 108, pt. 2 syl., 116 S.E. 516; Corbin v. City of Huntington, 74 W.Va. 479, pt. 3 syl., 82 S.E. 323. The question is one for the jury when the facts, though undisputed, are such that reasonable men may draw different conclusions from them. Taylor v. City of Huntington, 126 W.Va. 732, pt. 3 syl., 30 S.E.2d 14. When the facts relating to the issue of contributory negligence are undisputed or are of such nature that only one conclusion may reasonably be drawn from them, the question becomes one of law for the court. Hesser v. Grafton, 33 W.Va. 548, pt. 2 syl., 11 S.E. 211; Slaughter v. City of Huntington, 64 W.Va. 237, pt. 2 syl., 61 S.E. 155, 16 L.R.A.,N.S., 459; Hysell v. Central City, 68 W.Va. 769, pt. 2 syl., 70 S.E. 767; Paugh v. City of Parsons, 74 W.Va. 425, syl., 82 S.E. 204; Fields v. City of Spencer, 111 W.Va. 355, syl., 161 S.E. 613; Smith v. City of Bluefield, 132 W.Va. 38, pt. 3 syl., 55 S.E.2d 392. A plaintiff may be denied recovery in a case of this nature, not only because of his contributory negligence, but also on the basis of principles relating to assumption of risk. Boyland v. City of Parkersburg, 78 W.Va. 749, pt. 4 syl., 90 S.E. 347.
We believe and therefore hold that the trial court erred in refusing to submit to the jury the issues of contributory negligence and assumption of risk. The 1955 model Chevrolet automobile which the plaintiff was operating at the time he sustained the injuries and damages of which he complains was approximately sixteen and one-half feet in length. There was testimony from which the jury might reasonably have found that the automobile was completely off the pavement and even off the right of way and wholly on the private property of Thelma Shaw when it was struck by the falling boulder. It is undisputed that the two warning signs have been in existence since 1935 and it was common knowledge in the city and community that a dangerous situation had existed over a long period of time because of falling stones. The plaintiff testified that he was cognizant of that dangerous situation at the time he backed his automobile in the direction of the rock precipice or cliff and permitted it to stand at that place.
The defendant complains also of the action of the trial court in granting Plaintiff's Instruction No. 1 which, with emphasis supplied, is as follows:
"The court instructs the jury that it was the duty of the defendant, the City of Mannington, to keep Pyles Avenue, a public street, in good repair and in reasonably safe condition for travel by the public and this plaintiff, and that the duty to keep said street in repair included not only the paved portion of the road or the right of way itself, but the surrounding terrain, including the slopes of said street or avenue, and if the jury find and believe that the said City of Mannington has failed to keep said street and the surrounding slopes in reasonably safe condition for travel by the public and this plaintiff, and the plaintiff was injured, as a proximate result of said conduct, then said defendant, the City of Mannington, is liable in this action."
To the granting of that instruction counsel for the municipality objected on the ground that there was no duty on the part of the city "to keep the surrounding terrain in repair." We believe that the language used in the instruction is too broad, of a nature likely to have misled the jury and that the *890 giving of the instruction constituted prejudicial error.
It is true that the duty of a municipality to keep its public streets and alleys in a reasonably safe condition for travel "extends, not only to that part of such streets actually used for travel, but to adjacent parts so close to the traveled way as that it may reasonably be contemplated that obstructions thereon or defects therein may cause injury to travelers, should they slightly diverge from the beaten path or traveled way." Garr v. City of McMechen, 86 W.Va. 594, pt. 2 syl., 104 S.E. 101; Taylor v. City of Huntington, 126 W.Va. 732, pt. 1 syl., 30 S.E.2d 14. See also Waddell v. City of Williamson, 98 W.Va. 547, pt. 5 syl., 127 S.E. 396. We construe these cases to hold that a municipality's obligation in this respect extends to and embraces portions of its streets or alleys which are not paved and portions which are not customarily traveled; but we do not construe them to hold that an obligation is imposed upon the municipality in relation to defects or dangerous situations existing on private property near or adjacent to the street or alley. We believe the correct rule in this respect is stated in the third point of the syllabus of Biggs v. City of Huntington, 32 W.Va. 55, 9 S.E. 51, as follows: "This duty of a city or town in this state to keep its streets, sidewalks, alleys, etc., safe for foot-passengers and vehicles, is not met by keeping simply the bed of the highway or the surface of the sidewalk in proper condition; but such duty is violated if a dangerous excavation or open well be permitted so close to the margin of the sidewalk or highway as to make the use of them as such dangerous. But if a traveler unnecessarily, for his own convenience, deviates designedly from the highway, and in so doing meets with an accident outside of the highway, the city cannot be responsible, no matter how near the highway the obstruction may be." (Italics supplied.)
We are not aware of any prior decision of this Court holding that liability may be imposed on a municipality under the statute involved in this case by reason of a defect or dangerous situation existing on private property near a city street, alley or sidewalk. The contrary is indicated by Watkins v. County Court of Preston County, 30 W.Va. 657, 5 S.E. 654, in which it was held that the county was not liable for personal injuries sustained by the plaintiff by reason of the falling of a dead tree which previously had stood five feet from the highway on private property; and Toler v. City of Charleston, 115 W.Va. 191, 174 S.E. 891, in which it was held that the municipality was not liable in damages to a plaintiff who suffered personal injuries while a pedestrian on a public sidewalk by reason of the falling of a limb from a tree standing upon adjacent private property. Other cases, while not direct precedents for the precise situation presented by this case, are pertinent in determining when a street, alley or sidewalk may be considered out of repair so as to impose liability on a municipality under the statute. In Haney v. Town of Rainelle, 125 W.Va. 397, 25 S.E.2d 207, it was held that the municipality was not liable in damages to one who sustained personal injuries while using a board walkway which led from a public street to a municipal jail. See also Carder v. City of Clarksburg, 100 W.Va. 605, 131 S.E. 349; Douglass v. Roane County Court, 90 W.Va. 47, 110 S.E. 439; Holsberry v. City of Elkins, 86 W.Va. 487, 103 S.E. 271.
In the light of the authorities to which we have referred, the Court holds that the evidence in this case fails to disclose that the street was out of repair so as to impose any basis of liability against the municipality under the statute.
For reasons stated, the judgment of the Circuit Court of Marion County is reversed, the verdict of the jury is set aside, and the defendant is awarded a new trial.
Judgment reversed; verdict set aside; new trial awarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336029/ | 136 S.E.2d 647 (1964)
262 N.C. 206
In the Matter of Custody of Debra Carol SIMPSON and Johnny Simpson, Minors.
No. 669.
Supreme Court of North Carolina.
June 12, 1964.
*650 D. Leon Moore, Reidsville, for petitioner appellants.
McMichael, Griffin & Rankin, Reidsville, for respondent appellee.
BOBBITT, Justice.
Our first question is whether Judge Gwyn had original jurisdiction to hear and pass upon the questions presented by the petition.
The only procedure for the adoption of minors is that prescribed by G.S. Chapter 48. "Adoption shall be by a special proceeding before the clerk of the superior court." G.S. § 48-12. A superior court judge has no jurisdiction in adoption proceedings except upon appeal from the clerk. See G.S. § 48-21 and G.S. § 48-27. There is nothing in the evidence concerning an adoption proceeding, if any, filed by petitioners except the allegation that "your petitioners are in the process of filing a Special Proceeding for the adoption of the * * * children with the Clerk of the Superior Court for Rockingham County." Clearly, Judge Gwyn had no jurisdiction to make an order relating to any adoption proceeding.
Did Judge Gwyn have original jurisdiction to determine whether custody of Debra and Johnny should be awarded to petitioners?
The petition was not filed in any pending civil action or special proceeding. It was presented directly to Judge Gwyn as Resident Judge some two months after the children had been removed to another county and placed in the custody of prospective adoptive parents in accordance with an interlocutory order in an adoption proceeding.
It does not appear that Debra and Johnny were subject to adoption until the order of January 12, 1960, in which they were adjudged abandoned children. G.S. § 48-2 (3a); G.S. § 110-28 et seq. Prior thereto, the order of March 12, 1958, made provision for immediate (temporary) custody. G.S. § 110-27.
Under G.S. § 110-21, the clerk of the superior court, in his capacity as Juvenile Judge, has exclusive jurisdiction of an abandoned child under sixteen years of age; and, "(w)hen jurisdiction has been obtained in the case of any child, unless a court order shall be issued to the contrary, or unless the child be committed to an institution supported and controlled by the State, it shall continue for the purposes of this article during the minority of the child."
It is noteworthy that the Juvenile Court, under G.S. § 110-21, has exclusive original jurisdiction of a child under sixteen years of age "whose custody is subject to controversy" in all cases except those in which the superior court is given jurisdiction by G.S. § 17-39 or G.S. § 50-13. In re Melton, 237 N.C. 386, 74 S.E.2d 926; Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906; In re Prevatt, 223 N.C. 833, 28 S.E.2d 564.
*651 By his order of January 12, 1960, the Juvenile Judge placed the custody of Debra and Johnny in the then Superintendent (now Director, see Session Laws of 1961, Chapter 186) of Public Welfare of Rockingham County and her successors in office. The record does not indicate there were any further proceedings or orders in the Juvenile Court.
Petitioners allege that the children are in the legal custody of the Director of the Department of Public Welfare of Rockingham County. It is noted that respondent denies this allegation. It is respondent's contention that the custody of Debra and Johnny was properly transferred (incident to the adoption proceedings) to the Department of Public Welfare of an unidentified county, which county, under the inter-county agreement, has assumed responsibility for supervision of the children. It is noted that one of the statutory powers and duties of a County Director of Public Welfare is "(t)o investigate cases for adoption and supervise placements for adoption." G.S. § 108-14(10).
To support their contention, petitioners cite In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R. 2d 818. In that case, the Domestic Relations Court, in which was vested Juvenile Court jurisdiction, made an order relating to a dependent child. Thereafter, the mother of such child made a motion before the said Domestic Relations Court for a modification of said order. The motion was contested by those who had actual custody. The matter was heard in the superior court on appeal from the order of the Domestic Relations Court.
The basis for petitioners' allegation and contention is the order entered January 12, 1960, by the Juvenile Judge. Whether, under this order, the Director of Public Welfare of Rockingham County was authorized to transfer the custody of the children to the Director of Public Welfare of another county, and if not, whether the Juvenile Court should authorize such transfer, are questions determinable in the first instance in the Juvenile Court. The superior court has jurisdiction to hear appeals from orders and judgments of the Juvenile Court. G.S. § 110-40.
In our view, Judge Gwyn did not have original jurisdiction to determine whether custody of Debra and Johnny should be awarded to petitioners.
With reference to petitioners' legal status: Petitioners are not the natural parents of Debra and Johnny. During the period petitioners had actual custody of the children, the legal right to custody was in the Director of Public Welfare of Rockingham County; and petitioners' actual custody was under authority granted by said Director pursuant to the arrangement for their care. Understandably, petitioners, on account of their long and happy association with the children, are deeply concerned for their welfare. Without passing upon petitioners' legal standing, if any, to proceed by motion in the Juvenile Court, it would be appropriate for the Juvenile Court to hear any matters brought to its attention bearing upon what occurred subsequent to its order of January 12, 1960, with reference to the custody and welfare of the children.
Although compensated to the extent indicated, it seems appropriate to say that the care and affection provided by petitioners to Debra and Johnny deserve the highest commendation.
We express no opinion as to whether the Director of Public Welfare of Rockingham County acted legally or wisely in removing the children from petitioners' custody and placing them under the supervision of the Department of Public Welfare of an unidentified county. Decision on this appeal is based solely on the ground Judge Gwyn did not have original jurisdiction to hear and pass upon the questions presented by the petition.
*652 For lack of jurisdiction, the judgment from which petitioners appeal is vacated.
Judgment vacated.
SHARP, J., took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336048/ | 109 Ga. App. 571 (1964)
136 S.E.2d 510
ACRES, by Next Friend
v.
KING et al.
40586.
Court of Appeals of Georgia.
Decided April 14, 1964.
J. E. Wilson, for plaintiff in error.
James A. Bagwell, contra.
PANNELL, Judge.
1. An order of the court under Code Ann. § 38-2105 requiring the payment of attorney's fees by one party to another on the taking of depositions is such a judgment as will support a bill of exceptions to this court. "A judgment may be rendered separable from a judgment disposing of the entire case, and yet be a judgment that is final as to some of the substantial rights of the parties. . . It is final when, as to the subject matter of the judgment, any of the substantial rights of the parties litigant are finally settled by the judgment." Booth v. State of Ga., 131 Ga. 750, 756 (63 S.E. 502). Mendenhall v. Stovall, 191 Ga. 452 (1) (12 SE2d 589). That the holdings by Federal courts might be different under the Federal Rules of Civil Procedure is not controlling, as there is no provision under the law of this State, as there is in the Federal courts, for the taxing of such attorney's fees as court costs against the losing party in a final determination of the case. See, in this connection, Fred Benioff Co. v. McCulloch, 133 F2d 900 (1); Newton v. Consolidated Gas Co., 265 U.S. 78, 83 (44 SC 481, 68 LE 909).
2. Our rules relating to the taking of depositions, fashioned after the Federal Rules of Civil Procedure as to the same subject matter, make no provision as to which party pays the cost of taking depositions in the first instance. It would seem, however, that the party desiring the testimony, particularly where discovery is one of the purposes for taking the deposition, should be primarily responsible therefore in the absence of an order of the court to the contrary under Code Ann. § 38-2105 (b) or (d), and we so hold. See in this connection, In Re Coronet Metal Products Corporation, 81 FSupp. 500; Burke v. Central-Illinois Securities Corp., 9 F. R. D. 426 (1); Saper v. Long, 17 F. R. D. 491.
3. While it is true that the notice for the taking of the depositions in the present case by the plaintiff stated the deposition was for the purpose of cross examination of an adverse *572 witness (whose affidavit had been introduced as evidence by the defendant on defendant's motion for summary judgment) and no objection was made thereto by the defendant; yet, Code Ann. § 38-2101 (c) provides that "examination and cross examination of the deponents may proceed as permitted at the trial under the rules of evidence," and since a defendant under such circumstances has the right to examine the witness on redirect examination after the cross examination, Cameron v. State, 66 Ga. App. 414 (3) (18 SE2d 16), Corbin v. State, 81 Ga. App. 353, 357 (58 SE2d 485), the trial court did not err in overruling plaintiff's motion to limit the deposition to cross examination by plaintiff and in sustaining the motion of the defendant to continue the suspended examination of the witness and requiring plaintiff to pay the cost thereof.
4. The trial court, however erred in ordering the plaintiff to pay the defendant the sum of $100 for attorney's fees. It appears that at the taking of the depositions, after the cross examination by plaintiff, the defendant demanded the right to cross examine the witness, which the plaintiff refused to permit. After some discussion, plaintiff agreed that the defendant could question the witness, but only at defendant's expense. Upon motion of the defendant the taking of the deposition was suspended pending the decision of the matter by the trial judge upon the motions of the respective parties. It is our opinion that the action of the plaintiff under the circumstances does not show such bad faith as would authorize the imposition of attorney's fees for defendant's attorney, particularly when the defendant could have protected himself from abuse by examining the witness and then submitting the matter of the cost thereof for decision of the trial judge, rather than suspending the taking of the deposition which suspension resulted in the order for a further examination on another day. See, generally, in this connection, Sanib Corp. v. United Fruit Co., 19 F. R. D. 9; Yonkers Raceway, Inc. v. Standardbred Owners Association, Inc., 21 F.R.D. 3.
Judgment reversed. Felton, C. J., and Frankum, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336049/ | 244 S.C. 256 (1964)
136 S.E.2d 297
McCray EADDY, Appellant,
v.
JACKSON BEAUTY SUPPLY COMPANY, Inc., Respondent.
18213
Supreme Court of South Carolina.
May 13, 1964.
Dan M. McEachin, Esq., of Florence, for Appellant.
*257 Messrs. Wright, Scott, Blackwell & Powers, of Florence, for Respondent.
May 13, 1964.
BRAILSFORD, Justice.
In this action for damages for personal injuries, allegedly caused by the negligence of an agent of the corporate defendant in the operation of a motor vehicle in the scope and course of his employment, the jury found a verdict for the defendant and plaintiff has appealed.
The complaint contained appropriate allegations to charge the defendant with liability under the doctrine of respondent superior. The first defense of the answer denied these allegations. Subsequent defenses admitted that the defendant's truck was being driven by its employee on the occasion in question, but did not admit that the employee was acting in the scope and course of his employment.
The first and second exceptions charge error in the refusal of the court to give certain instructions which were *258 requested by the plaintiff. The factual basis on which these exceptions rest is set forth in the agreed statement, from which we quote.
"At the conclusion of the charge of the Court, the plaintiff-appellant requested a peremptory instruction that the negligence of the employee of the defendant, James R. Fagan, was imputable to the defendant or in the alternative that the negligent acts of an agent committed while in and about the duties of his principal are attributable to the principal. There was no dispute in the testimony that James R. Fagan was an employee of the defendant and was acting in and about the business of the defendant and within the scope of his employment at the time of the accident. The Court refused both of these requests and submitted the matter to the jury with no charge upon the law of principal and agent at all. * * *"
Although, as stated by the trial judge in his order refusing a new trial, there was no conflict in the testimony as to agency and no issue of fact thereabout, the legal principle of respondent superior lay at the foundation of plaintiff's claimed right to recover. It was a fundamental part of the applicable law which the judge was required to declare in his instructions to the jury. "Judges shall not charge juries in respect to matters of fact, but shall declare the law." Constitution of South Carolina, Article 5, Section 26.
The opinion in Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797, which has been referred to as a legal classic, compares the foregoing section with Article IV, Section 26, Constitution of 1868 and comments: "The permission to `declare the law' has been changed into a mandate. Instead of the former permissive clause, `Judges * * * may * * * declare the law,' we find the now imperative provision, `Judges * * * shall declare the law'." 47 S.C. 507, 25 S.E. 804.
It was said of this section in Powers v. Rawles, 119 S.C. 134, 112 S.E. 78, 83, "But conjoined with the duty to refrain from trespassing upon the domain of the facts is *259 the mandatory and nondelegable duty imposed upon the judge of declaring the law."
We quote from Collins-Plass Thayer Co. v. Hewlett, 109 S.C. 245, 95 S.E. 510, 513:
"* * * The law is the right of a party arising out of a state of facts. A jury ought to be instructed about what right springs out of a fact to be determined by them. The jury ought not to be left to cut a way through the woods with no compass to guide it. * * *"
Of course, the right to have the law declared may be waived by the parties and, ordinarily, silence in the face of an omission from or error in the charge amounts to waiver. Van Dolson v. Earles, 234 S.C. 593, 109 S.E. (2d) 456.
Here the request to charge was of a controlling principle of law and was timely made. Section 10-1210, Code of 1962; Goodwin v. Harrison, 231 S.C. 243, 98 S.E. (2d) 255. Refusal of it was error requiring reversal and a new trial. The other questions raised are not likely to recur and need not be considered.
Reversed.
TAYLOR, C.J., and MOSS, LEWIS and BUSSEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336063/ | 219 Ga. 816 (1964)
136 S.E.2d 379
MULLINS
v.
MULLINS.
22417.
Supreme Court of Georgia.
Submitted March 9, 1964.
Decided April 13, 1964.
Glenn G. Dickenson, Isaac S. Peebles, Jr., for plaintiff in error.
D. Field Yow, Boller & Yow, contra.
QUILLIAN, Justice.
The principal question in the case sub judice is whether Richmond Superior Court had jurisdiction to entertain *817 a proceeding seeking a modification of a child support decree.
The pertinent facts are as follows: on February 24, 1958, there was a judgment rendered in Richmond Superior Court granting a final divorce to Lottie Carr Mullins and D. Franklin Mullins, Jr., in which decree the custody of the two minor children of the marriage was given to Lottie Mullins and the amount of alimony and child support was fixed. The order further recited: "Until further order of the court, the said sums to be paid for the maintenance and support of the two said minor children shall be paid to the plaintiff [Lottie Mullins]." The petition for divorce and the judgment rendered thereon were filed under the number 7897-A.
In September, 1963, Franklin Mullins filed his petition in the same superior court seeking not a downward revision in the amount of the support payments, but that such payments for his minor son no longer be made to Lottie Mullins as provided in the divorce decree and in view of Lottie Mullins' conduct and refusal to properly utilize the money (so that the son might obtain a college education) that an order issue directing the payments be made directly to the son, Donald Foster Mullins, or to such person "as the court may direct." The petition was filed under the number of the divorce action, #7897-A, and did not pray process. The defendant filed her general demurrers and pointed out that process was not attached to the petition as required by law. She also filed an answer and cross action in which she alleged that there had been a substantial increase in the income of the husband and prayed for an upward modification in the child support payments; that the husband was in arrears in his payments and prayed that he be held in contempt. To the answer and cross action the plaintiff filed general and special demurrers.
The issue came on to be heard on the merits, evidence being introduced in the form of affidavits by both parties. Subsequently, the trial judge sustained the plaintiff's demurrers to the answer and cross action and overruled the defendant's demurrers to the petition. In the final order there were findings of facts based on which certain payments made by the plaintiff to his son, in order that the son might attend college, were applied against the father's obligation for support payments, both past and future. The order further provided *818 that future payments of the son's college expenses, up to the amount of the award, might be made jointly to Lottie Mullins and the educational institution the son was attending; if the expenditures were less than the amount of the award then the surplus might be paid to Lottie Mullins or jointly to Lottie Mullins and the son. The final judgment and all the pleadings in the case were filed under the same number as the original decree.
The defendant excepted and assigns as error all the adverse rulings made against her.
1. The absence of jurisdiction, appearing on the face of a petition, may be raised by general demurrer complaining that the petition fails to allege a cause of action for the relief sought. Mullally v. Mullally, 199 Ga. 708 (2) (35 SE2d 199); Brown v. Mathis, 201 Ga. 740, 743 (1) (41 SE2d 137).
2. A trial court has no authority save that provided by statute (Ga. L. 1955, p. 630; Code Ann. § 30-220 et seq.) to revise or otherwise modify a child support decree after the term in which such judgment was rendered has expired. Burch v. Kenmore, 206 Ga. 277, 279 (56 SE2d 508); Davis v. Davis, 218 Ga. 250 (127 SE2d 296).
(a) An attempt to retain jurisdiction of a judgment rendered on a jury verdict by the use of such language as "until further order of the court" is a nullity. Gilbert v. Gilbert, 151 Ga. 520 (1, 2) (107 S.E. 490); Fricks v. Fricks, 215 Ga. 137 (109 SE2d 596); Zuber v. Zuber, 215 Ga. 314, 316 (2) (110 SE2d 370).
3. Where, as here, the petition obviously does not institute a new and distinct action separate from the original divorce action, and in actuality amounts to no more than a motion made in a case previously disposed of at a prior term, the trial court is without jurisdiction. Samples v. Alewine, 217 Ga. 669 (124 SE2d 394); Davis v. Davis, 218 Ga. 250, 253, supra.
The trial judge having erred in overruling the defendant's demurrer to the petition, all other proceedings were nugatory.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336028/ | 136 S.E.2d 873 (1964)
STATE ex rel. Millard Junior BONNETTE, alias Tony Anthony Debreno,
v.
Otto C. BOLES, Warden, West Virginia Penitentiary.
No. 12338.
Supreme Court of Appeals of West Virginia.
Submitted June 2, 1964.
Decided June 23, 1964.
*874 Neal A. Kinsolving, Charleston, for relator.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.
HAYMOND, President:
This is an original habeas corpus proceeding instituted in this Court May 25, 1964. The petitioner, Millard Junior Bonnette, alias Tony Anthony Debreno, a prisoner in the West Virginia Penitentiary, to which he was sentenced by final judgment of the Intermediate Court of Kanawha County rendered February 10, 1961, for a term of not less than one year or more than ten years for the principal offense of which he was convicted and for an additional term of five years, seeks a writ to prevent the enforcement of the additional term of five years imposed by the court under the provisions of Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended.
On May 25, 1964, this Court awarded the writ and appointed an attorney to represent the petitioner in this proceeding. On June 2, 1964, the date to which the writ was returnable, the defendant appeared and produced the prisoner before this Court. The defendant, who was represented by an assistant attorney general, presented no defense to the petition, and this proceeding was submitted for decision upon the petition and its exhibits and the written brief of the attorney in behalf of the petitioner.
The facts which are not disputed are stipulated by the attorneys for the respective parties.
A grand jury of the Intermediate Court of Kanawha County at the September Term, 1960, returned an indictment for a felony which charged the petitioner with the crime of breaking and entering; and at that term of court, on November 28, 1960, the petitioner entered a plea of guilty to the offense charged in the indictment. On January 4, 1961, another day of the same term of the court, the prosecuting attorney filed an information in which it was charged that the petitioner had previously been convicted and sentenced for an offense punishable by confinement in the penitentiary. No further action was taken by the court concerning the petitioner during the September Term, 1960, which ended on January 7, 1961. The petitioner was not confronted with the foregoing information until after the adjournment of the September Term, 1960, of the court or until February 10, 1961, during the January Term, 1961, of the court. At that time the court entered an order filing the information, duly cautioned the petitioner, and required him *875 to say whether he was the same person named in the information. The petitioner acknowledged, in open court, that he was the same person and the court found that he had previously been convicted of a felony and had been sentenced on December 16, 1953, by the Circuit Court of Putnam County, West Virginia, to be confined in the penitentiary of this State at Moundsville, West Virginia, for a term of ten years and that he had been so confined in the penitentiary under the sentence of imprisonment.
The court by its final judgment rendered February 10, 1961, sentenced the petitioner to confinement in the penitentiary of this State for a term of not less than one year or more than ten years for the principal offense and, because of his one prior conviction of a crime punishable by imprisonment in a penitentiary, also sentenced the petitioner to confinement in the penitentiary for an additional term of five years to begin at the expiration of the term of one year to ten years. The judgment provided that he be given credit for the time he spent in jail awaiting trial and conviction and that the sentence imposed should begin as of October 10, 1960.
It is the contention of the petitioner that the trial court, in imposing the sentence of imprisonment for an additional period of five years, did not comply with or satisfy the provisions of Section 19, Article 11, Chapter 61, Code, 1931, as amended, and that for that reason any sentence in excess of that provided by statute for the principal offense is void and unenforceable.
The decision in this proceeding is controlled by the decision of this Court in the habeas corpus proceeding of State ex rel. Foster v. Boles, W.Va., 130 S.E.2d 111, and under that decision the petitioner is entitled to relief from the additional sentence of five years which the court imposed under Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended, which are known as the habitual criminal statute. Section 19 of that statute provides that the information by the prosecuting attorney of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary be given to the court immediately upon conviction and before such person is sentenced and that the court shall, before the expiration of the term at which such person was convicted, cause such person to be brought before it and confronted with the charge set forth in the information and duly cautioned before such person is sentenced to further confinement under the habitual criminal statute.
It clearly appears from the record in this proceeding that the trial court did not comply with the requirement of Section 19 of the statute in that it failed to cause the defendant to be confronted with the charges set forth in the information and to be duly cautioned at the same term of court at which he was convicted of the principal offense charged in the indictment. The provisions of that section are clear and free from ambiguity and the procedural requirements which it imposes are mandatory. In the Foster case this Court, approving and quoting point 3 of the syllabus in State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873, held in point 1 of the syllabus that "A person convicted of a felony cannot be sentenced under the habitual criminal statute, Code, 61-11-19, unless there is filed by the prosecuting attorney with the court at the same term, and before sentencing, an information as to the prior conviction or convictions and for the purpose of identification the defendant is confronted with the facts charged in the information and cautioned as required by the statute."
It is well settled by the decisions of this Court that the jurisdiction of a trial court to sentence to further confinement in the penitentiary a person who is convicted of an offense and is subject to confinement in the penitentiary for such offense depends upon and is derived from Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended. State ex rel. Foster *876 v. Boles, W.Va., 130 S.E.2d 111; State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707; Shears v. Adams, 145 W. Va. 250, 114 S.E.2d 585; State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R. 2d 1234. This Court has also held that the provisions of Section 19 of the statute are mandatory and must be complied with fully for the imposition of a valid sentence of further confinement under the statute. State ex rel. Foster v. Boles, W.Va., 130 S.E.2d 111; State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707; State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892; State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740.
When, as here, it affirmatively appears from the record in the trial of a criminal case on an indictment for a felony punishable by confinement in the penitentiary for a period of less than life imprisonment that the trial court entered a judgment imposing an additional period of imprisonment under the habitual criminal statute, Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended, but did not fully comply with the provisions of that statute by failing to cause the defendant in such case to be confronted with the charges in the information and to be duly cautioned at the same term of court at which he was convicted of the principal offense charged in the indictment, the added portion of the sentence, in excess of the maximum statutory sentence for such principal offense, is void for the reason that the trial court lacked jurisdiction to impose such additional sentence. State ex rel. Foster v. Boles, W.Va., 130 S.E.2d 111; State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707; State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892; State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S.E.2d 740; State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 146; Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R. 2d 1234; Ex Parte Evans, 42 W.Va. 242, 24 S.E. 888; Ex Parte Mooney, 26 W.Va. 36, 53 Am. St. Rep. 59.
The judgment which sentenced the petitioner to confinement in the penitentiary for an additional period of five years, being in excess of the imprisonment for an indeterminate period of one year to ten years, the maximum sentence of imprisonment which the trial court had jurisdiction to pronounce upon the plea of guilty entered by the petitioner to the indictment against him for breaking and entering, is a void judgment to the extent that it exceeds the maximum sentence of one year to ten years. A judgment which is wholly void, or is void in part, is subject to collateral attack in a habeas corpus proceeding. State ex rel. Foster v. Boles, W.Va., 130 S.E.2d 111; State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707; State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S.E.2d 740; State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 146. The effect of a void judgment will be avoided and the enforcement of such judgment will be prevented by the writ of habeas corpus. State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R. 2d 1234; Ex Parte Evans, 42 W.Va. 242, 24 S.E. 888; Ex Parte Mooney, 26 W.Va. 36, 53 Am. St. Rep. 59. In the opinion in Ex Parte Evans, 42 W.Va. 242, 24 S.E. 888, this Court said: "Where the imprisonment is under process or order that is void, as distinguished from irregular or erroneous, the writ of habeas corpus holds it for naught, disregards or ignores it as not furnishing warrant for imprisonment; but it does not operate directly on the void process or judgment by annulling or reversing it, like an appeal, writ of certiorari, or writ of error, but, as a collateral procedure, simply releases from the prison by ignoring the alleged warrant for imprisonment."
*877 The sentence of confinement for the additional period of five years, being void, can not be enforced. The relief from that portion of the sentence imposed upon the petitioner as prayed for by him is granted, and the petitioner after completely serving the valid portion of his sentence must be released. At this time, however, he has not served the valid portion of his sentence of one year to ten years. For this reason the writ, which would presently release him from confinement, is denied and the petitioner is remanded to the custody of the defendant until he has completely served the valid portion of his sentence of confinement in the penitentiary of this State.
Writ discharged; prisoner remanded | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336065/ | 205 Va. 292 (1964)
BERNARD C. BOND
v.
MARGARET JOYNER.
Record No. 5746.
Supreme Court of Virginia.
June 15, 1964.
Harry E. McCoy (Seawell, McCoy, Winston & Dalton, on brief), for the plaintiff in error.
Herbert K. Bangel (Bangel, Bangel & Bangel, on brief), for the defendant in error.
Present, All the Justices.
1. Plaintiff Margaret Joyner obtained a judgment for $18,000 for personal injuries against Bond, in whose car she was a passenger when it was in a collision with a truck driven by one McDougle. She moved to dismiss Bond's appeal on the ground he had failed to designate for printing all the material evidence. But since he was in fact not in default in this respect, and since plaintiff had not availed herself of the right to make additional designation, her motion was dismissed.
2. Defendant Bond testified that as he was driving north into an intersection with the green light McDougle, who was traveling south, made a left turn in front of him and caused the collision. McDougle and other witnesses testified that the truck was halted and that Bond crossed into the wrong lane. Plaintiff testified that Bond was driving in a normal and safe manner prior to entering the intersection, and Bond contended she was bound by this testimony and was thus precluded from recovery. But the usual rule that a plaintiff is bound by his testimony as to facts on which his case turns was inapplicable because the crucial issue was what happened after Bond entered the intersection; and since plaintiff's attention had been diverted so that she did not observe the truck or the situation at the time of the collision she did not testify as to these controlling facts.
3. The court should have struck plaintiff's evidence, however, on the ground it failed to establish gross negligence on Bond's part. It showed at most that, though he had been driving carefully, he for some reason allowed his left front wheel to cross over the center line. This inadvertence did not constitute more than simple negligence.
Error to a judgment of the Circuit Court of the city of Portsmouth. Hon. Henry W. MacKenzie, Jr., judge presiding. The opinion states the case.
I'ANSON
I'ANSON, J., delivered the opinion of the court.
This action was instituted by Margaret Joyner, plaintiff, against Bernard C. Bond and David McDougle, defendants, to recover damages for personal injuries sustained when Bond's automobile, in which plaintiff was riding as a guest, collided with a truck driven by McDougle.
There was a jury trial, and at the conclusion of plaintiff's evidence, and again after all the evidence was heard, Bond made a motion to strike the evidence and enter summary judgment as to him on the ground that as a matter of law it failed to establish gross negligence. These motions were overruled and the jury returned a verdict against both defendants in the amount of $18,000, upon which judgment was entered. We granted Bond a writ of error, but McDougle's petition for a writ was denied and the judgment is final as to him.
Plaintiff filed a motion to dismiss this appeal because the defendant Bond failed to designate for printing all of the material testimony given at trial in the court below. Rule 5:1, | 6.
The material testimony which plaintiff alleges is not in the printed record appears in her reply brief. From an examination of testimony in the reply brief and the printed record, we find that all the testimony which is material to the disposition of this case is indeed in the printed record.
Moreover under Rule 5:1, | 6(a), plaintiff was afforded the opportunity to designate for printing those additional portions of the evidence which she considered to be material, but she failed to exercise this right. Frye Alford, 203 Va. 461, 462-463, 125 S.E.2d 177, 178; Jenkins Womack, 201 Va. 68, 69, 109 S.E.2d 97, 98; Boyd, Annual Survey of Virginia Law, 48 Va.L.Rev. 1523, 1543-1545. Hence, the motion to dismiss is overruled.
Bond contends that as a matter of law the evidence failed to establish gross negligence on his part, and that the trial court erred in *294 overruling his motions to strike and enter summary judgment for him.
The jury's verdict having settled all conflicts in the evidence, plaintiff is entitled to have it considered in the light most favorable to her.
The accident occurred at 10 P.M. on March 31, 1962, at the intersection of Elm avenue and South street in the city of Portsmouth. It had been raining and the streets were wet. Elm avenue is a fourlane street divided by a double unbroken line, and runs north and south. South street is a two-lane street running generally east and west and intersects Elm avenue at a slight angle. The intersection is controlled by a conventional overhead traffic light.
Earlier that evening, the plaintiff and Bond had dinner at a restaurant in South Norfolk, where each of them had drunk a bottle of beer. They were on their way to plaintiff's home, traveling north on Elm avenue, when the accident occurred. Plaintiff testified that Bond drove in a proper and normal manner during the evening, and that she felt "perfectly safe" with him. As they approached the intersection of Elm avenue and South street Bond was in his proper lane, traveling at a lawful and reasonable rate of speed, and he had the green light to proceed through the intersection. At the moment Bond's car entered the intersection plaintiff's attention was diverted to her right and she did not see the automobile collide with the truck operated by McDougle. She did not deny that she had told Bond on several occasions after the accident that it was not his fault.
Both defendants were called by the plaintiff as adverse witnesses. Bond testified that after he had traveled through the intersection the truck operated by McDougle, which was traveling in the opposite direction on Elm avenue, suddenly made a left turn across his lane of travel and the left front fender of his car struck the left front of the truck. On the other hand, McDougle, who the evidence shows was under the influence of intoxicants at the time of the collision, testified that he had stopped his truck in the inside lane on Elm avenue within one foot of the north edge of its intersection with South street. His left-turn signal light was blinking, and while the truck was stopped Bond's car crossed the center line of Elm avenue into the lane for southbound traffic and collided with his truck.
There was testimony from many disinterested witnesses that at the time of the collision the left front wheel of the truck was on the center line of Elm avenue with both front wheels turned as if it was going to *295 make a left turn into South street, and that the Bond automobile crossed two or three feet to the west of the center line into the truck's lane of travel. Some of these witnesses placed the point of impact at approximately twenty to thirty feet north of the intersection.
Bond first says that the trial court erred in not sustaining his motion to strike plaintiff's evidence and enter summary judgment because under the doctrine of Massie Firmstone, 134 Va. 450, 114 S.E. 652, the plaintiff cannot make out a better case against him than that shown by her own testimony, and that it exonerates him of gross negligence.
Under the rule of Massie Firmstone, supra, a plaintiff is bound by his unequivocal testimony as to facts within his knowledge and upon which his case turns. See also Virginia R. & P. Co. Godsey, 117 Va. 167, 171, 83 S.E. 1072, 1073; and Anno., 169 A.L.R. 798, 815, 825, where many Virginia cases are collected. But this rule is subject to qualifications and exceptions. Whether a litigant is precluded from recovery by his own testimony must be determined from a fair reading of it in its entirety, rather than by reference to isolated adverse statements, and it must clearly and unequivocally show that the party has no case. Crew Nelson, 188 Va. 108, 114, 49 S.E.2d 326, 329; VEPCO Mabin, 203 Va. 490, 493, 494, 125 S.E.2d 145, 148.
Measuring plaintiff's testimony by these principles, it is not of such a nature in itself as to preclude her from a recovery against Bond as a matter of law. It is true plaintiff testified that Bond's actions when he approached the intersection, and as he entered it, were normal and proper. However, she gave no testimony as to the manner in which Bond operated the car after he entered the intersection because her attention was diverted away from the street and she never saw the truck operated by McDougle. Thus plaintiff's testimony is silent as to whether or not Bond crossed the center line of the street into the lane of travel of the truck, and she was entitled to present for the jury's consideration the testimony of other witnesses, which was not in conflict with her own, as to the events which occurred immediately after Bond's car entered the intersection. Hence the trial court did not err in refusing to strike plaintiff's evidence on the sole ground that her testimony alone exonerated him of gross negligence.
Bond next says that as a matter of law all the evidence offered by the plaintiff fails to establish gross negligence on his part and the *296 trial court should have sustained his motion to strike her evidence and enter summary judgment. We agree with this contention.
Gross negligence is that degree of negligence which shows an utter disregard of prudence, amounting to complete neglect of the safety of another, such as would shock reasonable men. Whether gross negligence has been proved depends upon the facts and circumstances of each case. If reasonable men should not differ as to the conclusion to be drawn from the facts proved, the question becomes one of law for the court. Rigney Neauman, 203 Va. 822, 826, 127 S.E.2d 403, 406; Alspaugh Diggs, 195 Va. 1, 5, 77 S.E.2d 362 364;
Dishman Pitts, 202 Va. 548, 551, 118 S.E.2d 509, 511. See | 8-646.1, Code of Virginia, 1957 Repl. Vol.
While driving on the wrong side of the highway, in violation of Code | 46.1-203, is negligence, mere inadvertence in permitting the wheels of a vehicle to cross over the center line of a highway does not in itself constitute gross negligence. Smith Turner, 178 Va. 172, 178, 16 S.E.2d 370, 372, 136 A.L.R. 1251, 1254; Dishman Pitts, supra, 202 Va. at pp. 553, 554, 118 S.E.2d at p. 513.
Plaintiff's testimony shows that prior to the time Bond's automobile entered the intersection it was traveling on the proper side of Elm avenue, at a lawful and reasonable rate of speed. Thus if Bond was guilty of gross negligence in operating his automobile, it must have occurred during that moment in which the car traveled from the south to the north edge of the intersection, or at some point which was approximately twenty to thirty feet north thereof, where it collided with the truck driven by McDougle. The evidence merely shows that at some point during this short interval of time and distance the left front wheel of Bond's car crossed over the center line of Elm avenue two to three feet into the lane for traffic moving in the opposite direction. At most, such action constituted simple negligence. Manifestly Bond's conduct in the operation of his car, as shown from all the evidence, was not such as to be shocking to reasonable men, or indicate that he operated it in a manner as to show an utter disregard for the safety of the plaintiff. Given the entire evidence all the force and effect it may fairly be said to possess, as a matter of law it falls short of proving gross negligence on the part of Bond. It shows no more than mere inadvertence.
The cases of Smith Turner, supra, 178 Va. 172, 16 S.E.2d 370, 136 A.L.R. 1251, and McGehee Perkins, 188 Va. 116, 49 S.E.2d 304, relied upon by the plaintiff are readily distinguishable on their facts. *297
For the reasons stated, the judgment of the court below is reversed and final judgment is here entered for the defendant Bond.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312893/ | Robert M. Dow, Jr., United States District Judge
Before the Court is Defendant's motion for summary judgment [43]. For the reasons set forth below, Defendant's motion for summary judgment [43] is granted. Plaintiff is given until April 29, 2019 to file materials relating to the viability of his retaliation claim, as discussed below. Plaintiff's failure to file these materials by that date will result summary judgment being granted in favor of Defendant on Plaintiff's retaliation claim and this civil case being terminated. Defendant is given until May 27, 2019 to file a response to any materials that Plaintiff may file. The Court will set this case for further status hearing after reviewing any materials submitted on the briefing schedule above.
I. Background
Defendant Maryville Academy is a not-for-profit child welfare agency that runs private shelter and residential programs for children and teenagers in Des Plaines, Illinois. [46 (Def.'s Stmt. of Facts), at ¶¶ 1, 37.] The programs are staffed 24 hours a day, seven days a week, 365 days a year. [Id. at ¶ 37.] Pro se Plaintiff Kahn Dockery was an employee of Defendant. [Id. at ¶ 1.] After Plaintiff moved back to Chicago from Tennessee in July 2011, he was rehired by Defendant (who previously employed Plaintiff before he moved to Tennessee) as a youth care worker. [Id. at ¶ 2.] When Plaintiff was rehired in July 2011, Plaintiff identified himself as a "Jew" on his employee information sheet. [Id. at ¶ 24.] Plaintiff's initial schedule required that he work every other weekend, which Plaintiff testified included Saturday and Sunday. [Id. at ¶¶ 3, 5.] Plaintiff's shift was 2:00 p.m. to 10:00 p.m. [46-1 (Pl.'s Dep. Tr.), at 18:1-5.] During that period, Plaintiff did not indicate that it was against his religion to work weekends. [46 (Def.'s Stmt. of Facts), at ¶ 4.] Nor did Plaintiff request any accommodation. [Id. ] In July 2012, Plaintiff was promoted to the position of evening supervisor at the St. Martin de Porres program at Maryville. [Id. at ¶ 6.] In that position, Plaintiff worked Sunday through Thursday. [Id. at ¶ 7.] However, Plaintiff was on-call for work duties every other weekend. [Id. ] Being on-call meant that Plaintiff had to be available by cellular phone to assist with any work emergencies *708and to go to work if necessary. [Id. at ¶ 8.] Although Plaintiff testified that he rarely had to go into the office when he was on-call during the weekend, he acknowledged that it did sometimes happen. [46-1 (Pl.'s Dep. Tr.), at 21:15-18, 22:8-11.] On-call weekend hours were Friday from 3:00 p.m. through Monday at 6:00 a.m. [46 (Def.'s Stmt. of Facts), at ¶ 9.] Plaintiff occasionally asked for specific days off-such as the Day of Atonement (i.e. , Yom Kippur) and other high holidays-but did request a religious accommodation to be relieved of his on-call duties every other weekend. [Id. at ¶ 10; 46-1 (Pl.'s Dep. Tr.), at 22:23-23:5.]
Eventually Plaintiff was transferred to the St. George program at Maryville, after the St. Martin de Porres program closed. [46 (Def.'s Stmt. of Facts), at ¶ 11; 54 (Def.'s Resp. to Pl.'s Stmt. Add'l Facts), at ¶ 2.] Plaintiff was informed that his days off in the new program would be Sunday and Monday instead of Friday and Saturday. [46 (Def.'s Stmt. of Facts), at ¶ 12.] However, Plaintiff contends that the Executive Director Sister Cathy1 Ryan and the Division Director Evelyn Smith gave him a verbal guarantee that he would be moved bilaterally to a different program, keeping the same shifts, days off, and employee benefits.2 [48 (Plaintiff's Resp. to Def.'s Rule 56.1 Stmt.), at ¶ 12.] Plaintiff further claims that he did not receive any written documentation from the personnel department relative to the change in his work schedule. [Id. ] In his deposition, Plaintiff provided the following account of his reaction to being told that he would have to work Fridays and Saturdays:
Q: When you were told that your days off would now be Sunday and Monday, what, if anything, did you say?
A: I believe I asked if something can be changed or if Carr and I can switch days, or if there was some kind of way that those off days could continue to be -- if those off days could be respected. I've been used to them for over two years now in the program and I was pretty much set in my lifestyle with those days.
Q: At that time did you specifically indicate that you needed those days off due to your religion?
A: I believe Ms. Gaston asked for reasons why I would need those days off. I explained to her because of my religious belief system.
Q: What specifically did you tell her?
A: I told her I've been used to having these days off, and I have become accustomed to having these days off and to be able to worship with my family and do different things with my family around those days off that I've been used to having or following my schedule that I would usually do in life on those days off.
[46-1 (Pl.'s Dep. Tr.), at 40:2-24.] After being told that Sundays and Mondays were his days off, Plaintiff nonetheless reported for duty on a Sunday evening in *709October of 2014. [54 (Def.'s Resp. to Pl.'s Stmt. of Add'l Facts), at ¶ 4.] Plaintiff's immediate supervisor Marikah Carr informed Plaintiff that he could not work on Sundays because it conflicted with his own days off.3 [Id. at ¶ 6.] Mr. Carr then sent Plaintiff home.4 [Id. at ¶ 7.] Plaintiff returned to work on Tuesday and worked through Thursday. [48 (Pl.'s Aff.), at 40.] He again reported to work on Sunday, at which time Mr. Carr again sent Plaintiff home. [Id. ] This pattern continued for several weeks until a meeting was called by Program Director Sabrina Gaston. [Id. ] At that meeting, Plaintiff informed Ms. Gaston that he "could not accept [having Sunday and Monday off] due to a personal conflict." [Id. ] He further explained that he could not revert back to working regularly on Fridays and Saturday due to his religious beliefs. [Id. ] According to Plaintiff, Ms. Gaston asked Plaintiff if he would be willing to quit his job because of his religious beliefs. [Id. ] After Plaintiff responded in the affirmative, Ms. Gaston instructed Plaintiff to write a statement of resignation citing his religious belief as his cause.5 [Id. ] Believing there was no other option, Plaintiff drafted such a letter. [Id. ] On November 2, 2014, Plaintiff tendered his resignation letter to the then-Director of Human Resources Betty Barnes.6 [Id. ] Ms. Barnes did not provide any receipt for the letter, nor did she place the letter in Plaintiff's personnel file.7 [Id. ]
A few days later, Plaintiff was instructed to provide proof of his religious affiliation to the Human Resources Department. [Id. ] Plaintiff provided Defendant a letter from his brother Reverend Ruben Dockery-Founder and Pastor of Beythel Family Church in Nashville, Tennessee-indicating that Plaintiff was a member of that church.8 [46-3 (Def.'s Ex. 3).] The letter *710indicated that Plaintiff's "family teachings and religious practices have been based on the same principles all of his life." [Id. ] The letter further indicated that since moving back to Chicago, Plaintiff had "been in fellowship with a local Sabbath observing group." [Id. ] Plaintiff's brother ended the letter by noting that he was happy to respond to any further inquiries. [Id. ] But the letter did not affirmatively state that Plaintiff's religion requires that he have Fridays and Saturdays off from work.9 [Id. ; 46 (Def.'s Stmt. of Facts), at ¶ 18.] Plaintiff's brother has been an ordained minister for over 20 years. [54 (Def.'s Resp. to Pl.'s Stmt. of Add'l Facts), at ¶ 27.]
Defendant submitted an affidavit from Teresa Maganzini, Director of Human Resources and Employee Relations at Maryville Academy, indicating that "[g]iven the timing of the letter, questions about what, if any relationship the author of the letter had to [Plaintiff], and [her] own knowledge that Plaintiff had worked many Fridays and Saturdays in the past, [she] requested additional information from [Plaintiff] regarding his religious beliefs and his request for a religious accommodation." [46-7 (Maganzini Aff.), at ¶ 14.] On November 14, 2014, Plaintiff was summoned to the office of Ms. Maganzini. [48 (Pl.'s Aff.), at 41.] Ms. Maganzini informed Plaintiff that she had some concerns. First, she told Plaintiff that she needed additional documentation from Plaintiff regarding his requested accommodation.10 [Id. ] Second, she mentioned a case that Plaintiff was involved in while he lived in Nashville that had no bearing on his request for a religious accommodation. [Id. ] Plaintiff contends that it then became apparent to him that Defendant would not provide him a religious accommodation, so he filed a complaint with the Equal Opportunity Commission ("EEOC") on November 17, 2014. [Id. ] However, Plaintiff continued to work for Defendant. [46-1 (Pl.'s Dep. Tr.), at 54:19-22; 46-5 (Def.'s Ex. E).]
On November 26, 2014, Plaintiff called off work because of illness. [46-1 (Pl.'s Dep. Tr.), at 54:14-18; 46-5 (Def.'s Ex. E).] On December 1, 2014, Ms. Maganzini sent Plaintiff an email purporting to memorialize a November 26, 2014 conversation. [46-4 (Def.'s Ex. D).] In that email, Ms. Maganzini asked that Plaintiff "provide documentation of the specific belief of Judeo-Christian doctrine with regard to Sabbath observance as well as identifying information *711for the local Sabbath observing group with which" Plaintiff was affiliated. [Id. ] Plaintiff again called off of work on December 2, 2014, again because of illness. [46-1 (Pl.'s Dep. Tr.), at 54:23-55:6; 46-5 (Def.'s Ex. E).] Between December 3, 2014 and December 13, 2014, Plaintiff did not come to work.11 [46 (Def.'s Stmt. of Facts), at ¶ 22.]
On December 19, 2014, Ms. Maganzini sent Plaintiff a letter asking that he contact her no later than Monday, January 5, 2015 to discuss his intentions regarding his continued employment at Maryville Academy. [46-5 (Def.'s Ex. E).] The letter noted that Plaintiff failed to appear to work on nine separate occasions between December 3, 2014 and December 13, 2014, and that Plaintiff had not properly notified his Program Manager or Program Director of his work status. [Id. ] The letter also indicated that Plaintiff "failed to provide documentation regarding [his] request for a religious accommodation of [his] schedule." [Id. ] Although Defendant contends that Plaintiff failed to provide notice of this failure to appear at work during this period, Plaintiff testified that he attempted to contact his immediate supervisor Mr. Carr, but Plaintiff was unable to reach him. [46-1 (Pl.'s Dep. Tr.), at 55:22-56:10.] The Court credits that testimony.12 Still, Plaintiff has not presented any credible evidence establishing that he responded to Ms. Maganzini's December 19, 2014 letter requiring that he contact her. Although Plaintiff testified that he was "pretty sure" that he called Ms. Maganzini after he received her December 19, 2014 letter requiring that he contact her, he was unable to recall whether he was able to speak with or whether he left a message. [Id. at 53:11-54:2.] Nor could Plaintiff recall when he spoke with her. [Id. at 54:3-5.]
On January 9, 2015, Plaintiff appeared at Maryville Academy at Ms. Maganzini's request. [46-7 (Maganzini Aff.), at ¶ 19.] Defendant terminated Plaintiff on January 9, 2015. [46 (Def.'s Stmt. of Facts), at ¶ 41.] Ms. Maganzini submitted an affidavit averring that she terminated Plaintiff because of his continuing failure to report to work. [46-7 (Maganzini Aff.), at ¶ 19.] The reason for termination listed on the Discharge Action Document was job abandonment. [46-6 (Def.'s Ex. F).] The Discharge Action Document noted that Plaintiff failed to report to work on 30 days from November through January, including January 6-8, 2015, the three days immediately preceding his termination.13 [Id. ] The Discharge *712Action Document further noted that Plaintiff was absent from work for three consecutive days without calling a supervisor. [Id. ] Plaintiff has not submitted any evidence indicating that he attempted to contact his supervisor or anyone else at Maryville on January 6-8, 2015.
The EEOC provided Plaintiff with a right to sue letter on March 22, 2016. [1, at 5.] Plaintiff filed this lawsuit on June 14, 2016. [See 1.] During Plaintiff's deposition, Plaintiff answered numerous questions about his religion and his beliefs. For example, Plaintiff was asked to identify his religion:
Q: * * * What religion do you belong to?
A: I would like to consider it a culture. My family, my mother and father raised me under, I guess general view Judaism. But my family see it as a culture versus a religion.
Q: When you say your family views it as a culture versus a religion, is that the way you view it?
A: Yes.
[46-1 (Pl. Dep. Tr.), at 23:16-24:1.] During his deposition Plaintiff was unable to name the high holy days from his claimed religion. [46 (Def.'s Stmt. of Facts), at ¶ 26.]
In his opposition to Defendant's motion for summary judgment, Plaintiff makes reference to a settlement offer made to Plaintiff and the fact that Ms. Maganzini testified that her recollection was that a settlement was made because Defendant just wanted "to make it go away." [51 (Maganzini Dep. Tr.), at 14:7-14.] Although Plaintiff asserts that the offer was made "[d]uring the time of [Ms.] Maganzini's supervision of" Plaintiff's request for an accommodation [54 (Def.'s Resp. to Pl.'s Stmt. of Add'l Facts), at ¶ 24], Plaintiff has not presented any evidence regarding when the settlement offer was made. The cited deposition testimony does not support Plaintiff's contention that the offer was made "[d]uring the time of [Ms.] Maganzini's supervision of" Plaintiff's request for an accommodation.
II. Legal Standard
Summary judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a). Rule 56 makes clear that whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Id. In determining whether summary judgment is appropriate, the Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor (here, Plaintiff). Majors v. Gen. Elec. Co. , 714 F.3d 527, 532 (7th Cir. 2013) (citation omitted). But Plaintiff "is only entitled to the benefit of inferences supported by admissible evidence, not those 'supported by only speculation or conjecture.' " Grant v. Trs. of Ind. Univ. , 870 F.3d 562, 568 (7th Cir. 2017) (citation and quotation marks omitted). Rule 56(a) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, the moving party may meet its burden by pointing out to the court that "there is an absence of *713evidence to support the nonmoving party's case." Id. at 324, 106 S.Ct. 2548.
It is not the role of the Court to scour the record in search of evidence to defeat a motion for summary judgment; instead, the nonmoving party bears the responsibility of identifying evidence to defeat summary judgment. Harney v. Speedway SuperAmerica, LLC , 526 F.3d 1099, 1104 (7th Cir. 2008). To avoid summary judgment, the nonmoving party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation marks and citation omitted). For this reason, the Seventh Circuit has called summary judgment the "put up or shut up" moment in a lawsuit-"when a party must show what evidence it has that would convince a trier of fact to accept its version of events." See Steen v. Myers , 486 F.3d 1017, 1022 (7th Cir. 2007). In other words, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson , 477 U.S. at 252, 106 S.Ct. 2505.
III. Analysis
"Title VII prohibits employers from discriminating against employees and job applicants based on their religion." Adeyeye v. Heartland Sweeteners, LLC , 721 F.3d 444, 448 (7th Cir. 2013) (citing 42 U.S.C. § 2000e-2(a) ). As defined by Title VII, the definition of "religion" also includes "an implied duty to accommodate employees' religions and an explicit affirmative defense for failure-to-accommodate claims if the accommodation would impose an undue hardship on the employer." Id. Defendant moves for summary judgment on Plaintiff's Title VII failure to accommodate and discrimination claims.
A. Failure to Accommodate
"To prove a Title VII claim for failure to accommodate religion, an employee must prove three things: (1) 'the observance or practice conflicting with an employment requirement is religious in nature;' (2) the employee 'called the religious observance or practice to [the] employer's attention;' and (3) 'the religious observance or practice was the basis for [the employee's] discharge or other discriminatory treatment.' " Adeyeye , 721 F.3d at 449 (quoting Porter v. City of Chicago , 700 F.3d 944, 951 (7th Cir. 2012) ). "If the employee shows these elements, the burden then shifts to the employer to show that it could not accommodate the employee's religious belief or practice without causing the employer undue hardship." Id. (citing Baz v. Walters , 782 F.2d 701, 706 (7th Cir. 1986) ).
i. Sincerely Held Religious Belief or Practice
Defendant argues that summary judgment should be granted on Plaintiff's religious accommodation claim because Plaintiff cannot demonstrate that his sincerely held religious beliefs prevented him from working on Fridays and Saturdays. As discussed above, in order to succeed on a religious failure to accommodate claim, Plaintiff must show that the observance or practice conflicting with an employment requirement (here, working on the Sabbath) is religious in nature. Adeyeye , 721 F.3d at 449. "The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance *714or practice without undue hardship on the conduct of the employer's business." 42 U.S.C.A. § 2000e(j). "In interpreting what qualifies as religion under the broad statutory definition of Title VII," the Seventh Circuit has identified the relevant test as "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by orthodox belief in God." Adeyeye , 721 F.3d at 448 (quoting United States v. Seeger , 380 U.S. 163, 166, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) ) (internal quotation marks omitted).
Defendant moves for summary judgment on the ground that Plaintiff cannot show that his request for Fridays and Saturdays off was the product of a sincerely held religious belief or practice. In support of that argument, Defendant notes that Plaintiff referred to his belief as a culture and not a religion, citing to the following deposition testimony:
Q: * * * What religion do you belong to?
A: I would like to consider it a culture. My family, my mother and father raised me under, I guess general view Judaism. But my family see it as a culture versus a religion.
Q: When you say your family views it as a culture versus a religion, is that the way you view it?
A: Yes.
[46-1 (Pl.'s Dep. Tr.), at 23:16-24:1.] Although Plaintiff referred to Judaism as his "culture" in his deposition, Plaintiff went on to describe part of that "culture" in religious terms. For example, Plaintiff explained that part of his "culture" is his belief that "Jesus Christ is a savior, versus just being a prophet." [Id. at 24:2-14.] Drawing all reasonable inferences in Plaintiff's favor, Plaintiff's testimony that he views his Judaism as his culture does not preclude a finding that Plaintiff has religious beliefs stemming from his Jewish culture. Still, the Court understands how Defendant lacked (and continues to lack) clarity regarding Plaintiff's claimed religious beliefs. It remains unclear to the Court what religion Plaintiff claims to belong. Some evidence indicates that Plaintiff is Jewish. Plaintiff identified himself as a "Jew" on his employee information sheet. Plaintiff refereed to his culture as Judaism during his deposition. Yet Plaintiff also testified that his culture believes that Jesus Christ is the savior. Plaintiff's brother Reverend Ruben Dockery wrote a letter indicating that Plaintiff belonged to a church (not a temple or a synagogue) in Nashville, Tennessee that subscribes to the Judeo-Christian doctrine. Still, the Court recognizes that "sincerity rather than orthodoxy is the touchstone" for determining whether a belief is sincerely held. Vinning-El v. Evans , 657 F.3d 591, 594 (7th Cir. 2011) (addressing claim under the Religious Land Use and Institutionalizes Persons Act). Plaintiff need not "be a member of an authorized church or subscribe to its full menu of orthodox beliefs" to have a sincerely held religious belief. Seshadri v. Kasraian , 130 F.3d 798, 800 (7th Cir. 1997) (citations omitted); see also Frazee v. Ill. Dep't of Emp't Sec. , 489 U.S. 829, 831, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989) (rejecting position that a religious objection "must be found in a tenet or dogma of an established religious sect" in order to be protected by Free Exercise Clause of the First Amendment).14
*715Defendant also argues that Plaintiff's initial statements regarding his request to have Fridays and Saturdays off indicate that he wished to have those days off because of his personal preferences, not because of his religious beliefs. Plaintiff's own testimony provides support for this position:
Q: When you were told that your days off would now be Sunday and Monday, what, if anything, did you say?
A: I believe I asked if something can be changed or if Carr and I can switch days, or if there was some kind of way that those off days could continue to be -- if those off days could be respected. I've been used to them for over two years now in the program and I was pretty much set in my lifestyle with those days.
Q: At that time did you specifically indicate that you needed those days off due to your religion?
A: I believe Ms. Gaston asked for reasons why I would need those days off. I explained to her because of my religious belief system.
Q: What specifically did you tell her?
A: I told her I've been used to having these days off, and I have become accustomed to having these days off and to be able to worship with my family and do different things with my family around those days off that I've been used to having or following my schedule that I would usually do in life on those days off.
[46-1 (Pl.'s Dep. Tr.), at 40:2-24.] "[A]n employee is not permitted to redefine a purely personal preference or aversion as a religious belief." Reed v. Great Lakes Companies, Inc. , 330 F.3d 931, 935 (7th Cir. 2003) (citations omitted). Defendant further argues that Plaintiff's prior conduct demonstrates that it was not against Plaintiff's sincerely held beliefs to work on the Sabbath. When Plaintiff returned to work for Maryville Academy in July 2011, he worked Fridays and Saturdays. [46-1 (Pl.'s Dep. Tr.), at 19:15-21.] Although Plaintiff no longer regularly worked on Fridays and Saturdays after he was promoted to evening supervisor around July 2012 [Id. at 20:1-7, 20:23-21:18], Plaintiff still had on-call responsibilities every other weekend. [46-1 (Pl.'s Dep. Tr.), at 20:1-21:11.] Being on call meant that Plaintiff had to have access to his phone during that time. [Id. at 21:12-14.] Although Plaintiff testified that he rarely had to go into the office when he was on call during the weekend, he testified that it did happen. [Id. at 21:15-18, 22:8-11.] During that time, Plaintiff would request that he be relieved of his on-call duty for "High Holy Days" such as the "Day of Atonement or Passover services." [Id. at 22:23-23:5.] There is no indication in the record that any such requests were denied. In that position, Plaintiff never requested an accommodation for his religious objection to working on the Sabbath. [46 (Def.'s Stmt. of Facts), at ¶ 10.]
During his deposition Plaintiff tried to explain why he previously was willing to work at Maryville Academy on the Sabbath:
Q: When you say [the Sabbath] is a day of rest, under your culture do you work on Saturday?
A: Not supposedly.
*716Q: When you say "not supposedly," what do you mean by that?
A: Being in America, sometimes life forces you to do things outside of what you would normally do, such as working at Maryville. But one may take that to be some [sic] different, because it is helping people or whatever, I guess. Depends on a person's perspective.
Q: Did you consider your work at, your employment at Maryville to be helping people?
A: I did. I do.
[46-1 (Pl.'s Dep. Tr.), at 26:16-27:5.] But Plaintiff has never offered an explanation as to why his religious convictions changed between the time he worked in the St. Martin de Porres program and the time he was transferred to the St. George program. Cf. E.E.O.C. v. Ilona of Hungary, Inc. , 108 F.3d 1569, 1575 (7th Cir. 1997) (affirming finding that plaintiff's religious beliefs were sincerely held where plaintiff explained that recent family events-including "her mother-in-law's death, her husband's growing faith, the birth of her son, and the death of her own father in Russia"-"caused religion to play an increasingly important role in her life"). Plaintiff's willingness to work on the Sabbath on an on-call basis immediately before he was transferred to the St. George program certainly calls into question the sincerity of Plaintiff's claimed religious objection to working on the Sabbath immediately after he was transferred. Hussein v. The Waldorf-Astoria , 134 F.Supp.2d 591, 596 (S.D.N.Y. 2001) ("[Plaintiff] has made no effort to explain why, if his religion prevented him from shaving, he had never worn a beard before. He does not contend, for example, that he had just converted to his religion."), aff'd sub nom. Hussein v. Waldorf Astoria Hotel , 31 F. App'x 740 (2d Cir. 2002). At the same time, the Court recognizes that "Title VII and courts * * * do not require perfect consistency in observance, practice, and interpretation when determining if a belief system qualifies as a religion or whether a person's belief is sincere." Adeyeye , 721 F.3d at 453 ; see also Grayson v. Schuler, 666 F.3d 450, 454-55 (7th Cir. 2012) ("[A] sincere religious believer doesn't forfeit his religious rights merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?").
Plaintiff argues that the fact that he was willing to resign demonstrates that his religious objection to working on the Sabbath was sincere. In support of that argument, Plaintiff cites McGinnis v. U.S. Postal Serv. , in which the court found that a postal clerk's conscientious objection to processing draft forms was based on a sincerely held religious belief. 512 F.Supp. 517 (N.D. Cal. 1980). In reaching that conclusion, the court found it compelling that the clerk was willing to jeopardize her job for her belief, which stemmed from her Quaker roots. Id. at 520 ("Particularly since Petitioner is willing to jeopardize her job in support of that belief, this Court has little occasion to question her assertion."). However, in that case, there was no evidence that the petitioner previously had acted inconsistently with her claimed religious beliefs. Furthermore, there was no evidence that the petitioner in that case had any non-religious reason for jeopardizing her job. Here, on the other hand, Plaintiff's own testimony indicates that he may have preferred to have Fridays and Saturdays off for "lifestyle" reasons.
The sincerity of a person's religious beliefs generally is an issue of fact not properly resolved on a motion for summary judgment. E.E.O.C. v. Ilona of Hungary, Inc. , 108 F.3d 1569, 1575 (7th Cir. 1997) (recognizing that the sincerity of a religious belief generally depends on an "assessment of the employee's credibility");
*717E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico , 279 F.3d 49, 56 (1st Cir. 2002) ("Credibility issues such as the sincerity of an employee's religious belief are quintessential fact questions. As such, they ordinarily should be reserved 'for the factfinder at trial, not for the court at summary judgment.' ") (quoting Simas v. First Citizens' Fed. Credit Union , 170 F.3d 37, 49 (1st Cir. 1999) ). Still, to the extent that Plaintiff's employer was aware of these facts during the relevant time-frame, Defendant was justified in questioning the sincerity of Plaintiff's religious objection. Although Defendant raises numerous facts that call into question the sincerity of Plaintiff's claimed religious objection to working on the Sabbath, the Court need not determine whether Plaintiff's objection to working on the Sabbath was the product of sincerely held religious beliefs because Plaintiff's Title VII failure to accommodate claim fails for another reason discussed below.
ii. Bilateral Cooperation
Defendant argues that summary judgment should be granted on Plaintiff's failure to accommodate claim because Plaintiff cannot demonstrate that he engaged in bilateral cooperation with Defendant when Defendant began making inquiries into the sincerity of Plaintiff's claimed religious beliefs. "In requiring employers to 'offer reasonable accommodations,' [the Seventh Circuit has] encouraged 'bilateral cooperation' between the employee and employer and recognized that employers must engage in a dialogue with an employee seeking an accommodation." Porter v. City of Chicago , 700 F.3d 944, 953 (7th Cir. 2012). Although bilateral cooperation usually becomes necessary in the process of identifying a reasonable accommodation, courts have held that the duty also applies to the determination of whether there exists a duty to accommodate. Bushouse v. Local Union 2209, United Auto., Aerospace & Agric. Implement Workers of Am. , 164 F.Supp.2d 1066, 1075 (N.D. Ind. 2001) ("Title VII does permit an inquiry into the sincerity and religious nature of an employee or member's purported beliefs before the duty to accommodate such a belief arises[.]"); E.E.O.C. v. Papin Enterprises, Inc. , 2009 WL 2256023, at *4 n.11 (M.D. Fla. July 28, 2009) ("[A]s a matter of common sense an employer must be permitted some inquiry into the purported beliefs of an employee before the duty to accommodate arises.").
In this case, the undisputed facts indicate that Defendant repeatedly requested additional documentation from Plaintiff regarding his claimed religious objection to working on the Sabbath. Plaintiff does not cite to any cases indicating that an employer may not inquire into the sincerity of an employee's religious beliefs before the duty to accommodate arises. Instead, Plaintiff argues (1) that the letter from his brother was sufficient to establish the sincerity of his beliefs, and (2) that it was unclear what additional information Defendant wanted. With respect to the first point, the letter provided by Plaintiff's brother did not establish that it was against Plaintiff's sincerely held beliefs to work on Friday and Saturday. The letter does not explicitly say so. Although the letter indicated that Plaintiff belonged to a local Sabbath observing group [46-3 (Def.'s Ex. C) ], it did not identify the group.
That brings the Court to Plaintiff's second point. Although Plaintiff asserts that it was unclear to him what additional information Defendant wanted, Defendant's December 1, 2014 email to Plaintiff (which Plaintiff admits he received) specifically asked for "documentation of the specific belief of Judeo-Christian doctrine with regard to Sabbath observance" and "identifying information for the local Sabbath observing group" with which Plaintiff is *718affiliated. [46-4 (Def.'s Ex. D).] Although the Court can appreciate that Plaintiff may not have understood exactly what was meant by "documentation of the specific belief of Judeo-Christian doctrine with regard to Sabbath observance," Defendant clearly asked that Plaintiff provide identifying information for the local Sabbath observing group referenced in his brother's letter.15 Furthermore, Plaintiff acknowledged that he could have asked the reverend at his local church to write a letter, but he chose not to do so because his relationship with the reverend and/or his family was strained at the time. [46-1 (Pl.'s Dep. Tr.), at 48:18-23.] Given this testimony, Plaintiff's claim to not understand the kind of additional information that Defendant wanted rings hollow.
Given that Defendant had reason to doubt Plaintiff's claimed religious objection to working on Fridays and Saturdays, as well as the letter provided by Plaintiff's brother in Tennessee, Defendant was justified in seeking additional information from Plaintiff.16 EEOC guidance indicates that if "an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information."17 EEOC Compliance Manual § 12-I.A.3. This position is supported by case law. See Adeyeye , 721 F.3d at 451 ("If the managers who considered the request had questions about whether the request was religious, nothing would have prevented them from asking [the employee] to explain a little more about the nature of his request[.]"); Vinning-El v. Evans , 657 F.3d 591, 594 (7th Cir. 2011) ("Such a belief isn't impossible, but it is sufficiently rare that a prison's chaplain could be skeptical and conduct an inquiry to determine whether the claim was nonetheless sincere."); see also E.E.O.C. v. Papin Enterprises, Inc. , 2009 WL 2256023, at *4 n.11 (M.D. Fla. July 28, 2009) ("[A]s a matter of common sense an employer must be permitted some inquiry into the purported beliefs of an employee before the duty to accommodate arises. * * * Determination of sincerity is a delicate task, but an employer is entitled to investigate whether the belief is sincere and religious in nature."). Absent the ability to inquire into the sincerity of a person's *719religious beliefs, "all statements of belief would have to be automatically accepted as sincerely held and be accommodated."18 Papin Enterprises, Inc. , 2009 WL 2256023, at *4 n.11.
Because (1) Plaintiff previously was willing to work on Fridays and Saturday and (2) Plaintiff himself testified that he told his employer he could not work on Fridays and Saturdays because he was "used to" and "accustomed to" having those days off "to be able to worship with [his] family and do different things with [his] family," Defendant had an objective basis for questioning whether Plaintiff sincerely believed that it was against his religion to work during the sabbath. Plaintiff's failure to provide more information to his employer as requested is grounds for granting summary judgment. Ranger , 983 F.Supp.2d at 976 (granting summary judgment on disability discrimination claim where the plaintiff failed to provide medical documentation supporting requests before she retired). Accordingly, the Court grants Defendant's motion for summary judgment on Plaintiff's failure to accommodate claim.
B. Religious Discrimination
Plaintiff also claims that Defendant discriminated against him because of his religion. To succeed on a Title VII discrimination claim, Plaintiff "must prove three elements: '[1] [that] he is a member of a class protected by the statute, [2] that he has been the subject of some form of adverse employment action (or that he has been subjected to a hostile work environment), and [3] that the employer took this adverse action on account of the plaintiff's membership in the protected class.' " Abrego v. Wilkie , 907 F.3d 1004, 1012 (7th Cir. 2018) (quoting Morgan v. SVT, LLC , 724 F.3d 990, 995 (7th Cir. 2013) ). Here, the only adverse employment action identified by Plaintiff is his termination.19 If Plaintiff is able to establish his prima facie case of discrimination, the burden shifts back to the Defendant "to articulate a legitimate, non-discriminatory reason for terminating his employment." Khowaja v. Sessions , 893 F.3d 1010, 1015 (7th Cir. 2018) (citation omitted). Plaintiff then must present evidence that the proffered reason is pretextual. Id.
Although Defendant disputes whether Plaintiff can carry his burden of proving his prima facie case of discrimination at trial, for the purposes of this motion for summary judgment, Defendant asks that the Court proceed to the analysis of *720whether Defendant can articulate a legitimate, non-discriminatory reason for terminating Plaintiff's employment. The Seventh Circuit has recognized that courts may consider an employer's claimed non-discriminatory reason for terminating an employee's employment without first addressing the employee's prima facie case. E.E.O.C. v. Our Lady of Resurrection Med. Ctr. , 77 F.3d 145, 149 (7th Cir. 1996) (collecting cases).
Defendant argues that summary judgment should be granted on Plaintiff's religious discrimination claim because Plaintiff was not meeting the reasonable expectations of his employer when his employment was terminated. Specifically, Defendant has identified evidence showing that it terminated Plaintiff because of his absenteeism. Ms. Maganzini submitted an affidavit averring that she terminated Plaintiff because of his continuing failure to report to work. [46-7 (Maganzini Aff.), at ¶¶ 2, 19.] The reason for termination listed on the Discharge Action Document was job abandonment. [46-6 (Def.'s Ex. F).] The Discharge Action Document noted that Plaintiff failed to report to work on 30 days from November through January, including January 6-8, 2015, the three days immediately preceding his termination. [Id. ] The Discharge Action Document further noted that Plaintiff was absent from work for three consecutive days without calling a supervisor. [Id. ] Plaintiff does not contend that he showed up to work on the days listed on the Discharge Action Document. Nor does he offer any explanation for these absences.
The Court recognizes that Plaintiff submitted his resignation on November 2, 2014. [48, at 24.] But Plaintiff does not argue that he was constructively discharged. Nor could he, given that the undisputed evidence establishes that Defendant did not accept Plaintiff's resignation. In fact, Plaintiff continued to work for Defendant after he submitted his resignation letter. [46-1 (Pl.'s Dep. Tr.), at 44:24-45:10.] Plaintiff "called off" work on November 26, 2014 because of illness, not because he had resigned or because his request for an accommodation was still pending. [46-5 (Def.'s Ex. E); 46-1 (Pl.'s Dep. Tr.), at 54:14-18.] He again called on sick on December 2, 2014. [46-5 (Def.'s Ex. E); 46-1 (Pl.'s Dep. Tr.), at 54:23-55:6.] Plaintiff has not offered any explanation for his failure to return to work after December 2, 2014. Although Plaintiff has presented evidence indicating that he was unable to get a hold of his immediate supervisor regarding his absences in December, Plaintiff has not presented evidence showing that he attempted to contact him regarding his unexcused absences in January. Furthermore, although Plaintiff testified that he was "pretty sure" that he called Ms. Maganzini after he received her December 19, 2014 letter requiring that he contact her, he could not actually recall reaching out to her. Finally, Plaintiff does not dispute that he was terminated on January 9, 2015. [46 (Def.'s Stmt. of Facts), at ¶ 41.]
Given that Plaintiff's request for a religious accommodation was still pending, Plaintiff arguably was justified in missing work on Fridays and Saturdays (although that proposition is highly questionable in light of Plaintiff's continued failure to provide additional information as requested by Defendant). Still, although some of the challenged absences were on Fridays and Saturdays (i.e. , on the Sabbath as Plaintiff views it), twenty of the challenged absences were on other days of the week. Plaintiff's absenteeism is a legitimate, non-discriminatory reason for terminating Plaintiff's employment. Lindemann v. Mobil Oil Corp. , 940 F.Supp. 189, 196 (N.D. Ill. 1996) ("Courts have held that excessive absenteeism is a legitimate, nondiscriminatory reason for terminating an employee *721which is dispositive unless there is evidence that absenteeism is merely a pretext[.]"), aff'd, 141 F.3d 290 (7th Cir. 1998). Defendant therefore has shifted the burden back to Plaintiff to establish that his absenteeism was a pretextual justification for his termination. Khowaja , 893 F.3d at 1015.
Plaintiff argues that a reasonable jury could find that his employment was terminated because of his scheduling conflict with his supervisor Mr. Carr and not because of his absenteeism. However, Plaintiff has not identified evidence-beyond mere speculation-that would support that conclusion. Furthermore, the Court notes that even if Plaintiff had provided Defendant with sufficient documentation of his religious objection to working on the Sabbath, this would not mean that Defendant legally would have been required to provide Plaintiff with his requested schedule to the detriment of his supervisor. "Title VII does not require an employer to interfere with a valid seniority system in the interests of religious accommodation." Rose v. Potter , 90 F. App'x 951, 953 (7th Cir. 2004) (citing US Airways, Inc. v. Barnett , 535 U.S. 391, 403, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) ; Trans World Airlines, Inc. v. Hardison , 432 U.S. 63, 79, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) ). The Court therefore finds it implausible that Defendant would fabricate a pretextual justification for terminating Plaintiff's employment on that basis.
Plaintiff also argues that a reasonable jury could find that "[Ms.] Maganzini intervened in the matter by removing Ms. Barnes from her position as Human Resources Director, then assuming her title and engaging in a conspiracy to," in her own words, "make it go away." [49 (Pl.'s Mem.), at 6.] However, as discussed above, Plaintiff has not identified any evidence showing that Ms. Barnes's change in position was in any way connected to Plaintiff's request for an accommodation. To the contrary, Ms. Barnes testified that she was not demoted and that her position changed because there was a restructuring of the department that went into effect once the union went into effect. [53 (Barnes Dep. Tr.), at 10:16-20.] Furthermore, to the extent that Plaintiff relies on Ms. Maganzini's statement that Defendant made a settlement offer to Plaintiff to "make it go away," Plaintiff has not presented any evidence regarding when the settlement offer was made. A post-termination settlement offer to make the prospect of costly litigation go away does not undermine Defendant's contention-supported by documentary evidence-that Plaintiff was terminated because of his absenteeism. Accordingly, the Court grants Defendant's motion for summary judgment on Plaintiff's Title VII religious discrimination claim.
C. Retaliation
Plaintiff's amended complaint indicates that he is seeking to bring a retaliation claim against Defendant. [15, at 4.] Yet neither party discusses such a theory in their summary judgment briefs. "To state a retaliation claim under Title VII, 'the plaintiff must prove that he engaged in protected activity and suffered an adverse employment action, and that there is a causal link between the two.' " Emerson v. Dart , 900 F.3d 469, 472 (7th Cir. 2018) (quoting Lord v. High Voltage Software, Inc. , 839 F.3d 556, 563 (7th Cir. 2016) ), reh'g denied (Sept. 25, 2018). As with a Title VII discrimination claim, if a plaintiff makes a prima facie showing of retaliation, the burden shifts to the employer to identify a legitimate, nondiscriminatory reason for the adverse employment action. Alexander v. Gerhardt Enterprises, Inc. , 40 F.3d 187, 195 (7th Cir. 1994). Once the employer makes such a showing, the burden shifts back to the employee to establish *722that the proffered reason was pretextual. Id. To the extent that Plaintiff seeks to bring a retaliation claim based on his termination, for the same reasons the Court grants summary judgment on Plaintiff's discrimination claim, the Court questions whether Plaintiff's retaliation claim remains viable. Specifically, the Court questions whether Plaintiff can meet his burden of showing that Plaintiff's purported justification for terminating Plaintiff was pretextual. To the extent that Plaintiff seeks to bring a retaliation claim based on the denial of his request for an accommodation, the Court suspects that such a claim would be barred as a repackaging of Plaintiff's failure to accommodate claim. Koty v. Zaruba , 2017 WL 4150684, at *7 (N.D. Ill. Sept. 19, 2017) ("Courts * * * do not recognize ADA retaliation claims that are simply repackaged failure to accommodate claims."), aff'd sub nom. Koty v. DuPage Cty., Illinois , 900 F.3d 515 (7th Cir. 2018).
The Court therefore is considering granting summary judgment on Plaintiff's retaliation claim. Before doing so, however, the Court gives Plaintiff notice of that possibility and an opportunity to respond. Hertel v. Miller-Lewis , 695 F. App'x 957, 961 (7th Cir. 2017) ("[A] district court may grant summary judgment on its own initiative, even on grounds not argued by the winning party, so long as the losing party is given notice and a full opportunity to respond.") (citing Pactiv Corp. v. Rupert , 724 F.3d 999, 1001-02 (7th Cir. 2013) ). Plaintiff is given until April 29, 2019 to file a brief addressing the issues flagged by the Court and to identify any admissible evidence relating to the viability of his retaliation claim. Plaintiff's failure to file these materials by that date will result summary judgment being granted in favor of Defendant on Plaintiff's retaliation claim and this civil case being terminated. Defendant is given until May 27, 2019 to file a response to any materials Plaintiff may file.
D. Punitive Damages
Defendant also argues that Plaintiff should be precluded from seeking punitive damages if summary judgment is denied. Because the Court is granting Defendant's motion for summary judgment on Plaintiff's Title VII failure to accommodate and discrimination claims, this issue is moot with respect to those claims. If Plaintiff is allowed to proceed with his retaliation claim, Defendant may again raise this issue with respect to that claim.
IV. Conclusion
For the reasons set forth above, Defendant's motion for summary judgment [43] is granted. Plaintiff is given until April 29, 2019 to file materials relating to the viability of his retaliation claim, as discussed above. Plaintiff's failure to file these materials by that date will result summary judgment being granted in favor of Defendant on Plaintiff's retaliation claim and this civil case being terminated. Defendant is given until May 27, 2019 to file a response to any materials Plaintiff may file. The Court will set this case for further status hearing after reviewing any materials submitted on the briefing schedule above.
Plaintiff spells the name Kathy with a "K" while Defendant spells it Cathy with a "C." The Court assumes Defendant's spelling is correct, as Defendant presumably has access to personnel records.
Defendant notes that Plaintiff has provided inconsistent statements regarding who told him that he would be able to keep the same days off. [54 (Def.'s Resp. to Pl.'s Stmt. of Add'l Facts), at ¶ 3.] However, such inconsistencies go to the credibility of Plaintiff's statement. Defendant also notes that Plaintiff has not produced any testimony from Evelyn Smith or Cathy Ryan supporting that assertion. However, Plaintiff may rely on his own testimony to establish a fact. Sarsha v. Sears, Roebuck & Co. , 3 F.3d 1035, 1041 (7th Cir. 1993) ("The nonmoving party's own affidavit or deposition will constitute affirmative evidence to defeat a summary judgment motion[.]" (citations omitted)). Regardless, the viability of Plaintiff's claim is not dependent on this fact.
Defendant contests this fact "as written" by Plaintiff. However, Defendant does not challenge the evidentiary basis cited by Plaintiff. Nor does Defendant cite any contrary evidence. Accordingly, Plaintiff's statement is deemed admitted. Shelton v. Wright , 2013 WL 212910, at *2 (N.D. Ill. Jan. 18, 2013). Even if Defendant had identified contrary evidence, on Defendant's motion for summary judgment, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving party. Bell v. Taylor , 827 F.3d 699, 704 (7th Cir. 2016).
Defendant disputes this fact, asserting that the Plaintiff's citation is misleading and conclusory and that the pages cited by Plaintiff speak for themselves. However, the cited materials support Plaintiff's assertion. Defendant does not explain how the fact is misleading and/or conclusory. And Defendant does not identify any contrary evidence. The Court therefore credits this fact, as well as other properly supported facts challenged by Defendant on similar bases.
The Court recognizes that Ms. Gaston denies directing Plaintiff to draft a resignation letter. However, Plaintiff's testimony supports this assertion, creating an issue of fact with respect to that issue. Sarsha , 3 F.3d at 1041.
Plaintiff contends that Ms. Barnes attempted to persuade Sabrina Gaston to reverse her actions, via a phone conversation. [54 (Def.'s Resp. to Pl.'s Stmt. of Add'l Facts), at ¶ 18.] However, the portion of Ms. Barnes's deposition testimony cited by Plaintiff does not support that assertion.
Plaintiff asserts that Ms. Barnes was demoted soon after she attempted to help Plaintiff with his request for a religious accommodation. Although Ms. Barnes changed position from Director of Human Resources to Assistant Director of Human Resources just days after Plaintiff claims he submitted his resignation letter, there is no evidence that this change in position was in any way connected to Plaintiff's request for an accommodation. To the contrary, Ms. Barnes testified that she was not demoted and that her position changed because there was a restructuring of the department that went into effect once the union went into effect. [53 (Barnes Dep. Tr.), at 10:16-20.]
Defendant cites numerous facts regarding how Beythel Family Church allows members to determine for themselves what doctrinal principles to follow, such as what teaching regarding the Sabbath to follow. [46 (Def.'s Stmt. of Facts), at ¶¶ 32-35.] While these facts do not establish that Plaintiff sincerely believed that it was against his religion to work on the Sabbath, they also do not undermine that claim. For example, it could be true that Plaintiff sincerely believes that his religion prohibits him from working on the Sabbath and also true that the Beythel Family Church allows members to attend worship services on Fridays, Saturdays or Sundays. The Court therefore finds these facts of limited usefulness.
Plaintiff disputes this fact. However, in so doing, Plaintiff recognizes that any "specific reference to 'requirements of off days' were not addressed." [48 (Plaintiff's Resp. to Def.'s Stmt. of Facts), at ¶ 18.] Plaintiff contends that this is because Defendant never identified what information they needed. Given that Plaintiff was seeking an accommodation based on his claimed religious belief that he cannot work on the Sabbath, however, it is unclear why such information would not be included.
In his response to Defendant's statement of facts, Plaintiff repeatedly asserts that "a specific request for details in writing to Teresa A. Maganzini was made." [See, e.g. , [48 (Pl.'s Resp. to Def.'s Stmt. of Facts), at ¶ 21.]] Although the cited portions of his deposition indicate that Plaintiff verbally requested more details regarding what additional information was needed, the cited material does not reference any written request to Ms. Maganzini.
Plaintiff disputes this fact. However, Plaintiff does not cite to any evidence indicating that he went to work on these dates. Furthermore, in his deposition, Plaintiff contested whether he attempted to contact his supervisor regarding these absences but did not contest that he failed to appear for work during this period. [46-1 (Pl.'s Dep. Tr.), at 55:7-56:1.]
Plaintiff also provided phone records which the Court believes Plaintiff submitted to show that he called his direct supervisor. [48, at 25-32.] It is likely that these are the phone records referenced in Plaintiff's deposition. However, Plaintiff does not provide any sort of explanation or authentication of the phone records. Still, for the purposes of Defendant's motion for summary judgment, the Court credits Plaintiff's testimony on this issue.
Defendant's statement of facts indicates that Plaintiff did not report to work for a total of 31 days between November 3, 2014 and January 8, 2015. [46 (Def.'s Stmt. of Facts), at ¶ 23.] The difference between 30 days and 31 days is not outcome determinative. Plaintiff disputes that he did not report to work for a total of 31 days during this time period, not based on the number of days identified, but based on the fact that he was unjustly sent home when he reported to work on a Sunday in October and the fact that he was forced to resign. The Court considers the impact of those facts on the arguments addressed below. However, those facts do not contradict Defendant's assertion that Plaintiff did not appear for work on the identified dates.
Plaintiff relies on Frazee in support of his argument that he has identified sufficient evidence for a reasonable jury to find that his religious objection to working on the Sabbath was sincere. In that case, the Supreme Court held that it violated the appellant's First Amendment rights to deny him unemployment benefits because he denied a position that required him to work on Sunday because of his religious beliefs even though his objection to working on Sunday was "not claimed to represent a tenet of a religious organization of which he was a member." 489 U.S. at 835, 109 S.Ct. 1514. However, in Frazee , the courts below did not question the sincerity of the appellant's belief and the appellee conceded the sincerity of his beliefs before the Supreme Court. Id. at 829, 109 S.Ct. 1514. Furthermore, unlike this case, there is no indication that the appellant in that case previously had acted contrary to his claimed religious objection.
Plaintiff repeatedly notes that his brother's letter indicated that Defendant could contact him for more information. Still, it is not unreasonable to believe that Plaintiff was a better source than his brother in Nashville in regard to identifying information for his local religious group.
As discussed above, Defendant submitted an affidavit from Teresa Maganzini indicating that "[g]iven the timing of the letter, questions about what, if any relationship the author of the letter had to [Plaintiff], and [her] own knowledge that Plaintiff had worked many Fridays and Saturdays in the past, [she] requested additional information from [Plaintiff] regarding his religious beliefs and his request for a religious accommodation." [46-7 (Maganzini Aff.), at ¶ 14.]
Indeed, under the Americans with Disabilities Act ("ADA"), an employee's failure to provide requested documentation of a disability is grounds for concluding that the plaintiff failed adequately to engage in the "interactive process" required under the ADA. Ekstrand v. Sch. Dist. of Somerset , 583 F.3d 972, 976 (7th Cir. 2009) ("[O]ur cases have consistently held that disabled employees must make their employers aware of any nonobvious, medically necessary accommodations with corroborating evidence such as a doctor's note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA's reasonableness standard to provide a specific modest accommodation the employee requests."); Ranger v. Colvin , 983 F.Supp.2d 966, 976 (N.D. Ill. 2013) (granting summary judgment on disability discrimination claim where the plaintiff failed to provide medical documentation supporting requests).
The Court notes that while the "validity" of a religious belief cannot be questioned, "the threshold question of sincerity * * * must be resolved in every case." United States v. Seeger , 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (applying First Amendment law). Although sincerity must be resolved in every case, the Court does not hold that an employer always can require the kind of documentation requested by Defendant in this case. For example, in many instances, an employer would have no reason to question an employee's religious beliefs where the employee has acted-at least for the most part-consistent with the claimed relief. Here, however, the undisputed fact that Plaintiff was willing to be on call during the Sabbath before he was transferred provided Defendant a good faith basis for requiring some more documentation and/or explanation for Plaintiff's sudden change in beliefs without any sort of explanation from Plaintiff.
Although the denial of a request for an accommodation may qualify as an adverse action, that is only if the request for an accommodation improperly was denied. Meador v. Metro. Water Reclamation Dist. of Greater Chicago , 2007 WL 4162809, at *13 (N.D. Ill. Nov. 15, 2007) ("But the action is only adverse if he can prove that he was improperly denied a reasonable accommodation."). Here, Defendant never denied Plaintiff's request for an accommodation. Defendant did ask Plaintiff to provide more information regarding his claimed religious belief, but for the reasons discussed above, that request was not improper, and Plaintiff never responded to it. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1336067/ | 205 Va. 357 (1964)
COUNTY OF LOUDOUN
v.
LEONARD W. PARKER.
Record No. 5759.
Supreme Court of Virginia.
June 15, 1964.
Stirling M. Harrison and George M. Martin, for the plaintiff in error.
Richard E. Hill (Hill, diZerega & deButts, on brief), for the defendant in error.
Present, All the Justices.
1. The county of Loudoun sought judgment for money due under the county's trailer camp ordinance which imposed an annual fee of $50 per trailer space. The decision of the trial court was that the ordinance was regulatory only and was invalid because the fee charged admittedly had no reasonable relation to the cost of regulation. This holding was reversed because the ordinance was held not only to regulate but to levy a license tax for revenue purposes, a power given to the county and other municipalities by section 35-64.1 of the Code, added by Acts of 1952.
2. The definition of a trailer given in the ordinance was adequate to identify the kind of vehicle referred to, hence there was no merit to defendant's argument that the ordinance was invalid for vagueness.
3. Nor was his position sound that under the statute giving any political subdivision the right to levy taxes on the operation of trailer camps only one could exercise the right and the county was precluded because the town of Leesburg had enacted such an ordinance. The word "any" is indefinite and includes "all" unless restricted.
Writ of error to an order of the Circuit Court of Loudoun county. Hon. Rayner V. Snead, judge presiding. The opinion states the case.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
The County of Loudoun filed its motion for judgment against Leonard W. Parker, defendant, for $6,300, alleged to be due under the Trailer Camp Ordinance of the County for the operation of a trailer camp in said County from July 7, 1959, through February 1, 1961 (sic). It was alleged that the trailer camp was composed of at least thirty-six trailer spaces, upon which the ordinance imposed an annual license tax of $50 each.
The defendant demurred to the motion for judgment on the grounds that the ordinance was unconstitutional, was vague and indefinite, and was not authorized by Title 35, Chapter 6, Article 1.1 [|| 35-64.1 through 35-64.6] of the Code.
By writing executed by the parties it was stipulated that only a small portion, if any, of the fees paid to the County under the ordinance is used for regulating or policing; that in adopting the ordinance no consideration was given by the Board of Supervisors to the cost of regulation in fixing the amount of the tax; that no additional personnel were employed or necessary for enforcement; that the tax collected is not deposited in a special account; that the health officials of the County visit the camps only several times a year and that the camps are seldom patrolled by the Sheriff's Department. It was also stipulated that the defendant's trailer camp is located in the Town of Leesburg, which had adopted a Trailer Camp Ordinance effective July 1, 1959.
Upon consideration of the demurrer and stipulation of facts the court entered the order appealed from which overruled the demurrer on the points that the ordinance was unconstitutional, or was invalid as being vague and indefinite or because the County was not authorized to enact it after the licensing power under | 35-64.1 of the Code had been exercised by the Town of Leesburg in said County. The order then held [on the ground that the ordinance was only regulatory] that the "fee" of $50 per trailer lot was for the purpose of regulation but did not bear any reasonable relation to the cost of regulation, and therefore the County could recover nothing on its motion for judgment.
To the latter holding the County assigned error, and the defendant assigned cross-error to the holdings that the ordinance was not invalid *359 because vague and indefinite or because the County was not authorized to enact it.
The Trailer Camp Ordinance of the County recited in its opening paragraph that it was "AN ORDINANCE to regulate the location, construction and operation of Trailer Camps in Loudoun County, Virginia, for the purpose of promoting the health, safety, morals and general welfare."
It then proceeded in Article I to define the terms used in the ordinance; in Article II to provide for the issuance of permits for the operation, to limit trailer parking to trailer camps, and to set forth the requirements for all trailer camps. These requirements include adequate water supply, garbage disposal, fire extinguishing equipment and a register of the patrons.
Subsection 2-5.10 of said Article II imposed on every person operating a trailer camp in the County "an annual license tax of $50.00 for each trailer space used or held out for use within the trailer camp." Said license tax was payable on or before January 1 of each year, and any camp or space established on or before July 1 of any year was subject to a full year's tax, and after July 1 to one-half of the annual license tax for that year.
Article III of the Ordinance provided for inspection; Article IV for adoption of regulations by health officers of rules for health, sanitation and safety; Article V provided for fines for violation of the ordinance; Article VI for the effect of partial invalidity, and Article VII for the effective date of the ordinance.
This ordinance was adopted July 6, 1959, more than seven years after our decision in County Bd. of Supervisors American Trailer Co., 193 Va. 72, 68 S.E.2d 115, in which we held that the Trailer Ordinance of Fairfax County, which as amended in 1948 imposed a license tax of $50 per year per trailer lot, was a regulatory ordinance and was invalid as such because the amount of the tax did not have a reasonable relation to the cost of enforcing the ordinance. In that case the county contended that Chapter 308, Acts 1946, page 518, now | 35-62 of the 1950 Code, in effect when the ordinance was amended in 1948, authorized an ordinance to raise revenue as well as to regulate trailer camps. But we held it was only a regulatory act and authorized only a regulatory ordinance, and that authority to adopt an ordinance to regulate was not authority to adopt an ordinance for general revenue purposes.
That case was decided December 3, 1951, and a few months later, at its 1952 session, the General Assembly enacted Chapter 592, Acts *360 1952, page 1036, which contained an emergency clause and was approved April 3, 1952. Its title is "An Act to require licenses of and to impose a trailer tax upon the operation of trailer camps and trailer parks and the parking of trailers, and to provide a penalty for violations." It contained six sections which are now || 35-64.1 through 35-64.6 of the Code of 1950. These sections compose Article 1.1 of Chapter 6 of Title 35 of the Code on the subject of Trailer Camps and bear the title "Licensing by Political Subdivisions" and follow Article 1 of that chapter which has the title "Regulation by Counties."
Section 1 of the 1952 Act, now | 35-64.1 of the Code, provides: "The governing body of any political subdivision in this State is authorized to levy, and to provide for the assessment and collection of, license taxes upon the operation of trailer camps and trailer parks and the parking of trailers."
It seems clear that it was the purpose of this legislation to supply what was lacking in the Fairfax County case, i.e., legislative authority to levy license taxes for revenue purposes as distinguished from license fees for regulation purposes.
Loudoun County, a political subdivision of the State, clearly had the right to levy a revenue license tax.
We said in the Fairfax County case that "a license tax may be imposed both for revenue and to regulate." 193 Va. at 76, 68 S.E.2d at 119. We had said so previously in Flax City of Richmond, 189 Va. 273, 283, 52 S.E.2d 250, 254. And see Wiggins Ferry Co. City of East St. Louis, 107 U.S. 365, 2 S. Ct. 257, 27 L.ed. 419; State Kartus, 230 Ala. 352, 162 So. 533, 101 A.L.R. 1336; 33 Am. Jur., Licenses, | 7, p. 330.
The trial court in its written opinion recognized this principle but was of the opinion that the legislature in enacting Chapter 592, Acts 1952, authorizing political subdivisions to levy license taxes on trailer camps, did not change the rule of construction stated in Chambers Higgins, 169 Va. 345, 193 S.E. 531. That case involved the priority of State and City license taxes on pool tables. It was contended that a license is not a tax, but the opinion pointed out that it may be assessed as a police regulation or as a license tax and that where the fee is imposed for the purpose of regulation, and compliance with certain conditions is required in addition to the payment of a prescribed sum, such sum is a license proper, imposed by virtue of the police power; but where it is exacted solely for revenue purposes and its payment gives the right to carry on the business without any further conditions, it is a tax. The same rules are more fully *361 stated in Charlottesville Marks' Shows, 179 Va. 321, 329, 18 S.E.2d 890, 894.
However, the Loudoun County Ordinance both regulates the business and imposes a license tax upon it. It is true that its title says it is an ordinance to regulate, "[but] the character of such an enactment is determined not by the denomination given to it by the legislative body, but rather from its substance and its real purpose." 179 Va. at 329, 18 S.E.2d at 894. The purpose of the Loudoun County Ordinance is twofold. It regulates the operation of trailer camps and it taxes the operation of trailer camps. The regulation feature occupies more space in the ordinance because it covers more requirements. Only one paragraph is devoted to levying the tax, but it is not questioned that it is sufficient for that purpose. However, as it is stipulated, only a small portion, if any, of this tax is used to pay for regulating, and in adopting the ordinance the Board of Supervisors gave no consideration to the cost of regulation in fixing the amount of the tax, employed no additional personnel for supervision, and deposited the money in no special account.
In County Bd. of Supervisors American Trailer Co., supra, the Trailer Park Ordinance of Fairfax County made similar detailed requirements with respect to location, water supply, sewage disposal, and other regulations, but it also imposed a license tax of $50 per trailer per year, the same as the Loudoun County Ordinance. We held in that case that since the amount of the tax bore no relation to the cost of regulation, the ordinance must be regarded as a revenue measure, and as such was invalid because not authorized by any law then in effect.
The authority then lacking has now been supplied by the General Assembly by the Act of 1952, as above noted, and it is now within the power and authority of the county to levy such tax. And the ordinance which levies such tax on trailer camps may also contain provisions which regulate the operation of such camps, as we said in the Fairfax County case, supra. That is what the Loudoun County Ordinance does and it is a valid enactment for those two purposes.
Defendant's cross assignments of error referred to above are without substance.
He contends that the definition of a trailer in | 1-3 of the Ordinance is so vague and indefinite "that it is impossible to determine with exactness what is being regulated." That section defines a trailer as "Any vehicle used or constructed for use as a conveyance upon highways, so designed and constructed as to permit occupancy *362 thereof as a dwelling or sleeping place for one or more persons." It is in practically the same words as the definition in | 35-64.3 of the Code, and it seems sufficient to identify the kind of vehicle referred to. See Fallon Florist City of Roanoke, 190 Va. 564, 587, 58 S.E.2d 316, 327.
Defendant also argues that Loudoun County was without authority to enact a revenue license tax since the licensing power had been exercised by the Town of Leesburg, in Virginia. He says this is not a problem of double taxation but "a question of statutory construction."
The statute, | 35-64.1, supra, gives authority to "any political subdivision in this State" to levy license taxes on the operation of trailer camps. Defendant concedes that Loudoun County is a political subdivision ( Mann County Board, 199 Va. 169, 173, 98 S.E.2d 515, 518), but he says the statute gives the right to "a" political subdivision but not to "any and all" political subdivisions. We are not persuaded that the statute may be so interpreted. "Any" is an indefinite word and includes "all" unless restricted, Black's Law Dict., 3d ed., p. 119; Webster's 3d New Int. Dict., p. 97.
For the reasons stated the order appealed from is affirmed with respect to its holding that the Loudoun County Ordinance is not invalid because vague and indefinite, or because the Town of Leesburg has a similar ordinance; but its holding that the ordinance is invalid as a revenue measure is reversed and the case is remanded for the entry of a judgment in favor of the plaintiff against the defendant for the amount due under the terms of said ordinance at the time of the institution of this action.
Affirmed in part, reversed in part, and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336066/ | 109 Ga. App. 542 (1964)
136 S.E.2d 507
McLENDON
v.
GRAY.
40545.
Court of Appeals of Georgia.
Decided April 7, 1964.
*545 Cassandra E. Maxwell, for plaintiff in error.
Sam Dettelbach, contra.
FRANKUM, Judge.
This was a suit to recover $500 earnest money paid by the plaintiff-purchaser to the defendant-seller under a contract for the sale of realty by the terms of which the defendant agreed to furnish to the plaintiff a marketable title to said property. The plaintiff alleged that upon examination of the title some 16 objectionable items were discovered, and that the defendant was notified thereof in writing, but that he failed to clear any of the items. At the time the case came on for trial plaintiff was permitted to amend his petition by adding a claim for an additional $500 allegedly paid pursuant to the contract. The case was tried before a judge of the Civil Court of Fulton County sitting without a jury, who, after hearing evidence, rendered judgment for the plaintiff in the amount of $1,000. The defendant made a motion for new trial on the general grounds and on seven special grounds, which motion was overruled, and the exception here is to that judgment. Error is also assigned in the bill of exceptions upon the ruling of the court permitting the plaintiff to amend his complaint so as to include therein a claim for the additional $500 alleged to have been paid.
1. So far as the record appears in this case the allowance of the amendment over the objection that it set forth a new cause *543 of action was not erroneous. Paragraph 4 of the original petition alleged that, in connection with the signing of the sale contract, the petitioner deposited with the defendant the sum of $500. The amendment to the petition merely added a paragraph 4 (a), which alleged that, subsequent to the signing, an additional sum of $500 was paid to the defendant, making a total of $1,000 paid, and the original prayer, which was for the recovery of $500, was amended so as to seek the recovery of $1,000. Nothing else appearing, this amendment did not add a new cause of action, and it was not subject to the objection urged.
2. The contract provided that the defendant would furnish the plaintiff a marketable title, and that the seller was to convey the property to the purchaser by warranty deed subject only to (1) all valid restrictions of record, (2) zoning ordinances affecting the property, (3) encumbrances as specified in the contract, and (4) existing leases. No encumbrances were specified by the contract as being excepted. A special stipulation provided that the seller would be liable for all liens upon the property for street improvements which bore a date prior to the acceptance of the contract. The evidence and the record showed that there were at least seven liens against the property for street improvements dated prior to the contract date, and the total amount covered thereby was $1,892.18. The evidence shows that the defendant never did offer to perform the contract in accordance with its terms, and there was no obligation on the plaintiff to undertake to perform until the liens were discharged. Douglas v. McNabb Realty Co., 78 Ga. App. 845, 853 (3c) (52 SE2d 550). See also City of Rome v. Breed, Elliot & Harrison, 21 Ga. App. 805 (95 S.E. 474); Kenney v. Walden, 28 Ga. App. 810 (3) (113 S.E. 61); Youngblood v. Schwan, 72 Ga. App. 86 (33 SE2d 26). The evidence authorized the judgment for the plaintiff.
3. A ground of a motion for new trial complaining of the exclusion of documentary evidence must set forth, literally or substantially, either in the ground itself or as an exhibit thereto, or by specific reference to another part of the record, the document excluded so that the court can ascertain whether the excluded evidence was material and relevant to the issues and whether its exclusion was harmful to the complaining party. A ground of a motion for new trial complaining of the exclusion of evidence, which does not thus set forth the *544 evidence offered and excluded, is incomplete and presents nothing for the court's consideration. Harris v. State, 96 Ga. App. 395, 400 (2) (100 SE2d 120); Thrailkill v. State, 103 Ga. App. 189, 191 (3) (118 SE2d 837), and cits. As a corollary proposition a special ground of a motion for new trial complaining of the exclusion of oral testimony which fails to show that a pertinent question was asked, that a statement was made to the court at the time it was asked showing what the answer would be, and that the testimony was material and would have benefited the movant, is too incomplete to be considered. Griffin v. Henderson, 117 Ga. 382 (2) (43 S.E. 712); Bowden v. Bowden, 125 Ga. 107, 108 (1) (53 S.E. 606); Bourquin v. Bourquin, 151 Ga. 575, 578 (2) (107 S.E. 767); Clare v. Drexler, 152 Ga. 419 (1) (110 S.E. 176); Thompson v. Central of Ga. R. Co., 102 Ga. App. 5, 7 (4) (115 SE2d 471). Special ground 1 assigns error "because the court refused to admit the defendant's exhibit No. 2, being affidavit of Regal Conception." This ground does not set forth the substance of defendant's exhibit No. 2, or make reference to any place in the record where it might be found. Special grounds 4, 5, 6, and 7 complain of the exclusion of oral testimony sought to be elicited from various witnesses. None of these grounds shows that a pertinent question was asked or that a statement was made to the court at the time showing what answer was expected, nor is there any showing in any of these grounds as to how the expected testimony would have been material or would have benefited the movant, if it had been admitted. In these circumstances there was nothing for the trial court to decide, and it is impossible for this court to ascertain whether the movant would have been benefited by the admission of the evidence or how he was injured by its exclusion.
4. Special grounds 2 and 3 attempt to assign error on the allowance of the amendment to the petition. It is fundamental that objections to rulings on pleadings are not proper grounds of a motion for new trial. Beck v. State, 100 Ga. App. 759, 760 (1) (112 SE2d 426); Halligan v. Underwriters at Lloyd's, 102 Ga. App. 905, 909 (2) (118 SE2d 107). These grounds cannot, therefore, be considered.
Judgment affirmed. Felton, C. J., and Pannell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336064/ | 136 S.E.2d 87 (1964)
261 N.C. 688
Mary Ruth HORNE and husband, James D. Horne,
v.
Hettie Griffin HORNE, Widow, and Jesse Brady Horne and wife, Elizabeth Arney Horne.
No. 450.
Supreme Court of North Carolina.
April 29, 1964.
*88 Taylor, Kitchin & Taylor, Wadesboro, for petitioner appellees.
E. A. Hightower, Wadesboro, for respondent appellants.
DENNY, Chief Justice.
The question posed for determination on this appeal is whether or not the respondent Jesse Brady Horne is entitled to have the entire 46 acre tract of land partitioned between the two tenants in common, subject to the dower of Hettie Griffin Horne.
It is provided in pertinent part by G.S. § 46-15: "When there is dower or right of dower on any land, petitioned to be sold or divided in severalty by actual partition, the woman entitled to dower or right of dower therein may join in the petition. The land to be divided in severalty shall be allotted to the tenants in common * * * subject to the dower right or dower, and either may be asked and assigned at the same time that partition thereof is made and by same commissioners. * * *" (Emphasis added.)
Dower may be allotted and the lands partitioned among the tenants in common in the same proceeding. Vannoy v. Green, 206 N.C. 77, 173 S.E. 277; Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86; McIntosh, North Carolina Practice & Procedure, Partition, section 2402, at page 502.
Ordinarily the order of a judge affirming the clerk in ordering actual partition is an interlocutory order and is not res judicata and therefore not appealable. Hyman v. Edwards, 217 N.C. 342, 7 S.E.2d 700; Navigation Co. v. Worrell, 133 N.C. 93, 45 S.E. 466.
On the other hand, a decree denying the right to actual partition and ordering a sale, affects a substantial right from which an appeal may be taken. Hyman v. Edwards, supra.
In the instant case, it may be that the order entered below, if no appeal had been taken therefrom, would result eventually in the necessity for a sale of that portion of the 46 acre tract allotted as dower. The respondent Hettie Griffin Horne, widow of Brady B. Horne, in her answer requested the appointment of commissioners to allot to her one-third in value of said tract of land, including the dwelling house and outbuildings and improvements appurtenant thereto, for the term of her natural life.
In the case of Luther v. Luther, 157 N.C. 499, 73 S.E. 102, it is said: "The authorities seem to agree that tenants in common cannot, as a matter of right, have partial partition of the lands owned by them, and that when only a part of the land is described in the petition the defendant may allege that there are other lands owned in common, and have them included in the order of partition. 30 Cyc. 177; Barnes v. *89 Lynch, 151 Mass. 510, 24 N.E. 783, 21 Am. St.Rep. 473; Bigelow v. Littlefield, 52 Me. 24, 83 Am.Dec. 484.
"In the last case cited, the court says: `One tenant in common cannot enforce partition of part only of the common estate. Such a course would lead to fraud and oppression.'
"If a different rule should be adopted, and three or four small tracts of land were owned in common, separate petitions could be filed for each, costs would be increased, and frequently sales for division would be necessary, when, if all were included in one petition, an actual partition would be practicable."
In 40 Am.Jur., Partition, section 32, page 27, it is said: "It is a well-established rule that a suit for partition should include all the lands of the original cotenancy, and if it does not, any party, whether his interest extends through all such lands or is restricted to some specific part, may insist that the omitted land or lands be included in the suit, and that all persons be made parties whose presence is necessary to a partition with such lands included * * *. Where two or more persons become cotenants either of a single or of several distinct tracts of land, each of them is entitled to partition of all their common property, within the jurisdiction of the court, by a single proceeding, and cannot be deprived of this right by any act or conveyance of any of his cotenants. * * * The fact that one cotenant has mortgaged a part of the lands of the cotenancy does not entitle the others to partition of that part of the land only not covered by the mortgage * * *.
"If cotenants own two tracts, they may voluntarily divide one of them, or they may ask the court to divide one of them, without depriving themselves of the right or the court of jurisdiction subsequently to apportion the other. * * *"
The case of Seaman v. Seaman, 129 N.C. 293, 40 S.E. 41, holds that where a petitioner petitions the court for sale of land for partition, and one of the respondents is a widow entitled to dower, the dower should be allotted before the land is sold.
Likewise, in Baggett v. Jackson, supra, it was held that, although M. A. Baggett might be the owner of a life estate, the petitioning cotenants could have actual partition of the remainder. The Court said: "The law was otherwise prior to chapter 214 of Laws of 1887, section 2 of which is copied in section 2508 of the Revisal (now codified as G.S. § 46-23), which reads as follows: `The existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seized and possessed as if no life estate existed. But this shall not interfere with the possession of the life tenant during the existence of his estate.'" (Emphasis added.)
In the instant case, all parties agree that the entire 46 acre tract can be partitioned without injury to any of the parties in interest, consequently, the provisions of G.S. § 46-16 and G.S. § 46-22 are not applicable to this proceeding.
Where there is no allegation, proof, or finding that an actual partition cannot be made without injury to some or all of the parties, the court is without jurisdiction to order a sale. Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369.
In the absence of any allegation, proof, or finding that the entire tract owned by the tenants in common herein cannot be partitioned without injury to any of the parties in interest, the tenants in common are entitled to have the entire 46 acre tract allotted in severalty to the tenants in common, subject to the dower of Hettie Griffin Horne, as authorized by G.S. § 46-15.
This cause is remanded for further proceeding not inconsistent with this opinion.
Error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204025/ | 688 N.W.2d 503 (2004)
PEOPLE
v.
CRAWFORD.
No. 122976.
Supreme Court of Michigan.
September 28, 2004.
SC: 122976, COA: 232962.
By order of June 30, 2003, the application for leave to appeal was held in abeyance pending the decision in People v. Kimble (Docket No. 122271). On order of the Court, the opinion having been issued on June 29, 2004, 470 Mich. 305, 684 N.W.2d 669 (2004), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263620/ | 24 Cal. App. 4th 1012 (1994)
30 Cal. Rptr. 2d 111
THE PEOPLE, Plaintiff and Respondent,
v.
ARTHUR ANTHONY SANCHEZ, Defendant and Appellant.
Docket No. B071169.
Court of Appeals of California, Second District, Division Seven.
April 29, 1994.
*1014 COUNSEL
Bruce Eric Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Cynthia G. Besemer and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
*1015 OPINION
WOODS (Fred), J.
We are asked to decide this novel question: if a defendant's lawyer delivers inculpatory writings to the trial court, under seal, may the trial court furnish those writings to the prosecutor without violating either the defendant's privilege against self-incrimination or the reciprocal discovery statutes (Pen. Code,[1] §§ 1054-1054.7)? Our answer is yes. We affirm the first degree murder judgment.
PROCEDURAL AND FACTUAL BACKGROUND
By information, Arthur Anthony Sanchez (appellant) was charged with the March 28, 1992, murder of Rufugia Limon Huerta. It was alleged he personally used a deadly weapon, a rope (§ 12022, subd. (b)). Appellant pleaded not guilty and denied the allegation.
On June 10, 1992, the prosecutor filed a motion with the trial court "to produce and ... unseal documents in the custody of the county clerk." Defense counsel filed an opposition. On July 7, 1992, Superior Court Judge James H. Piatt, after hearing argument by counsel, granted the motion. Execution of the order was stayed to permit appellant to petition for a writ of prohibition. On August 5, 1992, Division Three of this court summarily denied appellant's petition. The next day, on August 6, 1992, Judge Piatt personally turned the subject writings over to the prosecutor.
Trial began on September 8, 1992. Jury deliberations began September 22, 1992, and later that day the jury found appellant guilty of first degree murder (§ 187) and found true the allegation he had personally used a deadly weapon, a rope. (§ 12022, subd. (b).) The trial court, Superior Court Judge Thomas F. Nuss, denied appellant's new trial motion and sentenced him to state prison for 26 years to life.
There being no insufficiency of evidence claim, we summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal. 3d 284, 303-304 [228 Cal. Rptr. 228, 721 P.2d 110].)
That appellant strangled Ruth[2] Huerta in his bedroom of his parents' house in the early afternoon of March 28, 1992, was not disputed. Appellant admitted as much before and during trial. In dispute was only the degree of his culpability.
Appellant and the victim began dating in October 1991 and some months later became engaged. But in late February or early March 1992 their *1016 relationship became strained. Appellant was unemployed, lived with his parents, and was depressed. During a meeting with Ruth appellant became upset and shook her. She said she did not want to see him anymore. Appellant continued to telephone her, became angry, and called her names.
On March 28, 1992, the victim and her 16-year-old sister Roxanne planned to celebrate Roxanne's good grades by going shopping in the mall and then out to eat. But early that morning appellant called and told Roxanne he wanted to speak to Ruth. Informed she was in the bathroom, he called again. Ruth talked to appellant and they yelled at each other. Finally, Ruth agreed to briefly see appellant.
Before she left, around 1 p.m., Ruth told Roxanne to telephone her at appellant's house and say there was an emergency, otherwise appellant probably would not let her leave.
A little after 1 p.m. appellant's uncle arrived at appellant's house, saw Ruth's car in the driveway, and spoke briefly to appellant outside the house. The uncle left but returned in about 15 minutes, saw Ruth's car still in the driveway, talked to appellant for a few minutes outside the house, and left. He had not seen or heard Ruth. Appellant did not appear intoxicated to him; appellant seemed "normal."
Appellant's parents returned home about 5:30 p.m. and saw a note from appellant on the kitchen table. It stated: "Mom Dad I love you and I'm so sorry for what has happened. I love you. Please forgive me. I will call you. If anyone calls for Ruth, say that we went to Newport Beach."
A short time later appellant's married sister, Sherri Lucero, called her parents and asked if appellant's bedroom door was locked.[3] When told it was, she urged her parents to get into the room. They did. On the floor was an object wrapped in a tarp and covered by a blanket. Appellant's mother called 911.
The police arrived and found Ruth inside the blanket and tarp coverings, dead, strangled by a double looped rope around her neck. Her ankles, wrists, and elbows were bound with telephone cord.
Appellant, after killing Ruth, drove her car to a bank and used her automated teller machine (ATM) card to withdraw $200. Later, about 6:30 p.m., he drove to his sister Kathy's house and told her something bad had happened, that someone had been killed.
*1017 The next day, March 29, 1992, accompanied by his sisters, appellant surrendered to the police.
Appellant testified that on March 28, 1992, he consumed quantities of alcohol and cocaine, argued with Ruth at his house, put a rope around his neck and then remembered sitting on the bedroom floor, looking up and seeing Ruth's eyes staring at him. He did not see the rope around her neck, he only saw her eyes. He was scared and, still seated, flipped the blanket over Ruth. He felt weak, hot, had difficulty standing up, ran around the house yelling, returned to the bedroom, and, in stumbling, pulled Ruth from the bed onto the floor. He tried to lift her in order to carry her to the car and get help but he could not lift her. So he tied her ankles together to lift her, but still could not. He did not remember tying her wrists and elbows and did not remember strangling her.
DISCUSSION
A. Did the trial court err in furnishing the inculpatory writings to the prosecutor?
1. The inculpatory writings.
About a week after the offense, appellant's sisters Kathy and Sherri decided to air out appellant's bedroom and also to look for letters. They, along with appellant's parents, other relatives and friends began looking into the closets of his two bedrooms. In the middle bedroom, where Ruth's body had been found, Sherri saw a bag in the closet filled with magazines. Among the magazines were papers with appellant's writing.
In a back bedroom, also used by appellant, Sherri found other papers on the closet floor. Some were balled up. Others were in a little box. They also had appellant's writing.
The writings were of various sorts. Some were dated (Mar. 26 or Mar. 27 or Mar. 28), some were signed by appellant, and almost all referred to Ruth and appellant's feelings toward her. One dated "3/26" stated: "I don't want to hurt my girl but if she's not going to be mine, she won't be anyone else's either. Our love was meant to be `Death do us Part'."
Another stated that Saturday "could be the perfect opportunity, to follow through with what may very well be necessary. [¶] I really do wish that I had a gun, it would be so much easier and less painfull. Although if it needs to come to this, maybe pain should be felt?"
*1018 Still another appeared to be a murder checklist. On a three-and-one-half-by seven-and-one-half-inch piece of paper were the following numbered entries: "(1) strangle-stab[[4]] (2) enter into 4-ply gray plastic bags (3) seal bags thoroughly (4) empty trunk and line w/ blanket to place 4-ply into a cover with blanket. Check all oil, fluids, tires. (5) place two (5 gall.) gas containers in both corners of trunk (6) P. hills [?] ATM bogus deposit of $320[[5]] /withdraw $200 try to write check to guerrero bail for $100 $200 (7) use credit card to fill gas tank and containers, purchase tire flat fix cans (9)[[6]] Roy (cocaine) (10) need two cocaine bullets to be able to snort and drive calmly and safely to Seattle.[[7]]"
2. Transmission of the inculpatory writings.
In a declaration filed with the trial court, the prosecutor described the transmission and delivery of the subject writings as follows. Sherri, appellant's sister, and other family members found the writings and gave them to Kathy Gonzales, another sister of appellant. She gave them to an attorney, Henry Gonzales. Mr. Gonzales gave them to a public defender investigator who gave them to appellant's attorney, Deputy Public Defender Henry Bastien. Mr. Bastien placed the writings in a sealed envelope, and without informing the prosecutor, delivered them to the clerk of the court.
The prosecutor learned of the writings from Sherri Lucero's husband who also told the prosecutor that appellant's sister Kathy had given them to the Attorney Henry Gonzales.
3. Defense counsel's delivery of the inculpatory writings to the trial court.
Although defense counsel did not explain why he delivered, under seal, the inculpatory writings to the trial court, case law suggests an explanation.
In People v. Lee (1970) 3 Cal. App. 3d 514, 526 [83 Cal. Rptr. 715][8] the court stated it was "`an abuse of a lawyer's professional responsibility knowingly to take possession of and secrete the instrumentalities of a *1019 crime.'" Its discussion made clear the responsibility extended to other physical evidence. (Ibid.) Defense counsel could withhold the physical evidence for a reasonable time to examine it but then "`should, as an officer of the court, on his own motion turn the same over to the prosecution.'" (Ibid.)
Our Supreme Court extended this responsibility in People v. Meredith (1981) 29 Cal. 3d 682 [175 Cal. Rptr. 612, 631 P.2d 46]. In Meredith the victim was robbed and murdered. One of the defendants (Scott) told his lawyer he took "the victim's wallet, divided the money with Meredith, attempted to burn the wallet, and finally put it in the trash can." (Id. at p. 686.) The lawyer had his investigator retrieve the wallet from the trash can. "Counsel examined the wallet and then turned it over to the police." (Ibid.) The admissibility of the wallet was not in dispute but the testimony of the investigator who retrieved it was contested. Defendant (Scott) claimed the attorney-client privilege prevented the prosecution from calling the investigator and eliciting the location of the retrieved wallet.
Justice Tobriner, writing for a unanimous court, held "that whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence...." (29 Cal.3d at p. 695.)
Justice Tobriner also referred to an attorney's responsibility when given evidence not by his client but third parties. He stated, "Two decisions, People v. Lee (1970) 3 Cal. App. 3d 514 [83 Cal. Rptr. 715] and Morrell v. State (Alaska 1978) 575 P.2d 1200, held that an attorney must not only turn over evidence given him by third parties, but also testify as to the source of that evidence. Both decisions emphasized that the attorney-client privilege was inapplicable because the third party was not acting as an agent of the attorney or the client." (29 Cal.3d at p. 693, fn. 5, original italics.)
In People v. Superior Court (Fairbank) (1987) 192 Cal. App. 3d 32 [237 Cal. Rptr. 158] the prosecutor learned from defendant's intercepted jail letter to another inmate that defendant's lawyer had possession of the murder weapons. When the trial court refused to order defense counsel to deliver them to the prosecutor, the prosecutor petitioned for a writ of mandate. In issuing the writ the court stated, "If counsel ... chooses to ... possess ... physical evidence pertaining to the crime, counsel must immediately inform the court of the action." (Id. at pp. 39-40.) The court also noted this "legal obligation[] should be self-executing and no motion by the prosecution or order by the court should be required to enforce [it]." (Id. at p. 39.)
*1020 In delivering the inculpatory writings to the trial court defense counsel did no more[9] than his "legal obligation." (192 Cal. App.3d at p. 39.)
4. Privilege against self-incrimination.
(1a) The Fifth Amendment of the United States Constitution states "No person ... shall be compelled in any criminal case to be a witness against himself...." Appellant contends the trial court violated this provision by furnishing his inculpatory writings to the prosecutor. Appellant's sole authority is Izazaga v. Superior Court (1991) 54 Cal. 3d 356 [285 Cal. Rptr. 231, 815 P.2d 304].
Izazaga, which upheld as constitutional the reciprocal discovery provisions (§ 1054 et seq.) of Proposition 115, did not involve a defendant's writings. (54 Cal.3d at p. 364, fn. 1.) (2) But in considering the petitioner's claim that the reciprocal discovery statutes violated his Fifth Amendment privilege, Izazaga stated: "Under cases of the Supreme Court, there are four requirements that together trigger this privilege: the information sought must be (i) `incriminating'; (ii) `personal to the defendant'; (iii) obtained by `compulsion'; and (iv) `testimonial or communicative in nature.' (See United States v. Nobles (1975) 422 U.S. 225 [45 L. Ed. 2d 141, 95 S. Ct. 2160] ...; Schmerber v. California (1966) 384 U.S. 757, 761 [16 L. Ed. 2d 908, 914, 86 S. Ct. 1826]; Doe v. United States (1988) 487 U.S. 201, 207 [101 L. Ed. 2d 184, 194-195, 108 S. Ct. 2341].)[4]" (Id. at p. 366.) Footnote 4 stated: "These four requirements emanate directly from the wording of the self-incrimination clause: `No person ... shall be compelled in any criminal case to be a witness against himself ....'" (Ibid., original italics.)
(1b) Appellant argues that each of these four requirements was satisfied. In making this argument appellant neither discusses the three cases cited by Izazaga (Nobles, Schmerber, and Doe) nor any other pertinent authority. We consider appellant's contention.
Three of the requirements cannot seriously be questioned: the writings, concededly, are incriminating, personal to the defendant, and communicative in nature.
As to the fourth, "obtained by `compulsion'," appellant's entire argument consists of this: "they were obtained ... by compulsion i.e., they were obtained against appellant's will and over his objection."
Appellant is mistaken. He cites no authority for the proposition that a prosecutor obtains evidence by compulsion if the defendant objects to his obtaining that evidence. The law is otherwise.
*1021 In United States v. Nobles (1975) 422 U.S. 225 [45 L. Ed. 2d 141, 95 S. Ct. 2160], the first case cited by Izazaga, after the defense called its investigator as a witness, the defense was required to disclose its investigator's interview report of prosecution witnesses. Notwithstanding the defendant's objection, the high court stated, "Requiring their production from the investigator therefore would not in any sense compel [defendant] to be a witness against himself or extort communications from him." (Id. at p. 234 [45 L.Ed.2d at p. 150].)
In Schmerber v. California (1966) 384 U.S. 757 [16 L. Ed. 2d 908, 86 S. Ct. 1826], the second case cited by Izazaga, the issue was not compulsion (it was clearly present) but rather whether the compulsion was testimonial. In upholding the taking of a blood sample from the defendant the court found it was not.
Before considering Doe v. United States (1988) 487 U.S. 201 [101 L. Ed. 2d 184, 108 S. Ct. 2341], the third case cited by Izazaga, it is useful to note four of its antecedents.
In Warden v. Hayden (1967) 387 U.S. 294 [18 L. Ed. 2d 782, 87 S. Ct. 1642] the Supreme Court stated: "Nothing in the language of the Fourth Amendment supports the distinction between `mere evidence' and instrumentalities, fruits of crime, or contraband.... Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband." (Id. at pp. 301-302 [18 L.Ed.2d at pp. 788-789].) Warden upheld the search and seizure of the defendant's cap and jacket and rejected the Boyd rule (Boyd v. United States (1886) 116 U.S. 616 [29 L. Ed. 746, 6 S. Ct. 524]) that "`to permit them to be used in evidence would be, in effect ... to compel the defendant to become a witness against himself.'" (Warden v. Hayden, supra, 387 U.S. at p. 302 [18 L.Ed.2d at p. 789].)[10]
In Fisher v. United States (1976) 425 U.S. 391 [48 L. Ed. 2d 39, 96 S. Ct. 1569] taxpayers being investigated by the Internal Revenue Service (IRS) *1022 obtained documents from their accountants and, within the attorney-client relationship, transferred those documents to their lawyers. IRS served summonses on the lawyers, requiring them to produce the documents. The lawyers refused.
Fisher held: "The taxpayer's privilege under [the Fifth] Amendment is not violated by enforcement of the summonses involved in these cases because enforcement against a taxpayer's lawyer would not `compel' the taxpayer to do anything and certainly would not compel him to be a `witness' against himself." (425 U.S. at p. 397 [48 L.Ed.2d at p. 47].)
Justice White made clear that the Fifth Amendment is not implicated just because communicative evidence is compelled. It is implicated only when the compulsion is against the defendant. Justice White stated: "The taxpayers' Fifth Amendment privilege is therefore not violated by enforcement of the summonses directed toward their attorneys. This is true whether or not the Amendment would have barred a subpoena directing the taxpayer to produce the documents while they were in his hands." (425 U.S. at p. 397 [48 L.Ed.2d at p. 48].) He added, "This personal privilege was in no way decreased by the transfer. It is simply that by reason of the transfer of the documents to the attorneys, those papers may be subpoenaed without compulsion on the taxpayer. The protection of the Fifth Amendment is therefore not available. `A party is privileged from producing evidence but not from its production.'" (Id. at pp. 398-399 [48 L.Ed.2d at p. 49].)
Fisher also makes clear that not only must the "compulsion" be against the defendant but it must be the testimony the communication which is compelled. It states, "[T]he Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the court's view, did not involve compelled testimonial self-incrimination of some sort.
"The proposition that the Fifth Amendment protects private information obtained without compelling self-incriminating testimony is contrary to the clear statements of this Court that under appropriate safeguards private incriminating statements of an accused may be overheard and used in *1023 evidence, if they are not compelled at the time they were uttered, Katz v. United States, 389 U.S. 347, 354, [19 L. Ed. 2d 576, 583-584, 88 S. Ct. 507] (1967); Osborn v. United States, 385 U.S. 323, 329-330 [17 L. Ed. 2d 394, 399-400, 87 S. Ct. 429] (1966); and Berger v. New York, 388 U.S. 41, 57 [18 L. Ed. 2d 1040, 1051, 87 S. Ct. 1873] (1967); cf. Hoffa v. United States, 385 U.S. 293, 304 [17 L. Ed. 2d 374, 383, 87 S. Ct. 408]; and that disclosure of private information may be compelled if immunity removes the risk of incrimination. Kastigar v. United States, 406 U.S. 441 [32 L. Ed. 2d 212, 92 S. Ct. 1653] (1972). If the Fifth Amendment protected generally against the obtaining of private information from a man's mouth or pen or house, its protections would presumably not be lifted by probable cause and a warrant or by immunity. The privacy invasion is not mitigated by immunity; and the Fifth Amendment's strictures, unlike the Fourth's, are not removed by showing reasonableness. The Framers addressed the subject of personal privacy directly in the Fourth Amendment. They struck a balance so that when the State's reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue. They did not seek in still another Amendment the Fifth to achieve a general protection of privacy but to deal with the more specific issue of compelled self-incrimination." (425 U.S. at pp. 399-400 [48 L.Ed.2d at pp. 49-50].)
Andresen v. Maryland (1976) 427 U.S. 463 [49 L. Ed. 2d 627, 96 S. Ct. 2737] found no violation of the Fifth Amendment in the seizure of business records, including those written by defendant. The issue was framed this way: "There is no question that the records seized from petitioner's offices and introduced against him were incriminating. Moreover, it is undisputed that some of these business records contain statements made by petitioner.... The question, therefore, is whether the seizure of these business records, and their admission into evidence at his trial, compelled petitioner to testify against himself in violation of the Fifth Amendment." (Id . at p. 471 [49 L.Ed.2d at p. 637], internal citations omitted.)
In answering no, the court explained that "petitioner was not asked to say or to do anything. The records seized contained statements that petitioner had voluntarily committed to writing. The search for and seizure of these records were conducted by law enforcement personnel. Finally, when these records were introduced at trial, they were authenticated by a handwriting expert, not by petitioner. Any compulsion of petitioner to speak, other than the inherent psychological pressure to respond at trial to unfavorable evidence, was not present.
"This case thus falls within the principle stated by Mr. Justice Holmes: `A party is privileged from producing the evidence but not from its production.' *1024 Johnson v. United States, 228 U.S. 457, 458 [57 L. Ed. 919, 920, 33 S. Ct. 572]." (427 U.S. at p. 473 [49 L.Ed.2d at p. 638].)
Andresen, like Fisher, concludes that no Fifth Amendment violation occurs when a defendant, without being compelled to do so, makes a writing and the government, without compelling the defendant to produce the writing, obtains that writing.
In United States v. Doe (1984) 465 U.S. 605 [79 L. Ed. 2d 552, 104 S. Ct. 1237], there was little left to decide. A grand jury investigating corruption served respondent with five subpoenas for specified business records. In accordance with Fisher and Andresen, the court rejected any Fifth Amendment claim based upon the content of the documents. The court stated, "Where the preparation of business records is voluntary, no compulsion is present."[11] (United States v. Doe, supra, 465 U.S. at p. 610 [79 L.Ed.2d at p. 559].) It also rejected the argument that a "zone of privacy" protects private papers from compelled production. (Id. at p. 610, fn. 8 [79 L.Ed.2d at p. 559].)
In the third case cited by Izazaga, Doe v. United States (1988) 487 U.S. 201 [101 L. Ed. 2d 184, 108 S. Ct. 2341] (a related case to United States v. Doe, supra), the Supreme Court held that compelling Doe to execute a form authorizing disclosure of his records was not violative of the Fifth Amendment. (Id. at p. 206 [101 L.Ed.2d at p. 194].) Although the records were clearly communicative and Doe was compelled to authorize their disclosure, the compelled act of authorization was not "testimonial" within the meaning of the Fifth Amendment. (See also SEC v. Jerry T. O'Brien, Inc. (1984) 467 U.S. 735, 742 [81 L. Ed. 2d 615, 621-622, 104 S. Ct. 2720].)
Accordingly, if a defendant, without being compelled to do so, creates inculpatory writings and the government obtains them without compelling the defendant to authenticate or vouch for those writings, the Fifth Amendment is not violated. (People v. Thayer, supra, 63 Cal. 2d 635, 638; Fisher v. United States, supra, 425 U.S. 391; Andresen v. Maryland, supra, 427 U.S. 463; United States v. Doe, supra, 465 U.S. 605; SEC v. Jerry T. O'Brien, *1025 Inc., supra, 467 U.S. 735; United States v. Moody (11th Cir.1992) 977 F.2d 1425 [defendant's personal writings and his jail cell oral communications properly seized and admitted]; People v. Miller (1976) 60 Cal. App. 3d 849 [131 Cal. Rptr. 863] [defendant's diary properly admitted]; State v. Barrett (Iowa 1987) 401 N.W.2d 184 [Iowa Supreme Court held no violation of Fifth Amendment in admitting defendant's 143-page personal journal]; State v. Andrei (Me. 1990) 574 A.2d 295 [Maine Supreme Court held defendant's diary admissible]; see generally, 1 LaFave, Search & Seizure (2d ed. 1987) §§ 2.6(d) and 2.6(e), pp. 487-494; 8 Wigmore, Evidence (McNaughton rev. 1961) §§ 2263, 2264, pp. 378-386; Burkoff, Search Warrant Law Deskbook, § 18.3, pp. 18-12, 18-13; Note (1977) 76 Mich.L.Rev. 184, 206-211; Note (1977) 90 Harv.L.Rev. 945; McCormick, Evidence (3d ed. 1984) §§ 125-127, pp. 304-311; see also People v. Sirhan (1972) 7 Cal. 3d 710 [102 Cal. Rptr. 385, 497 P.2d 1121] [defendant's private journals properly admitted but Fifth Amendment not addressed]; People v. Frank (1985) 38 Cal. 3d 711 [214 Cal. Rptr. 801, 700 P.2d 415] [search warrant for defendant's diary invalid because affidavit failed to provide probable cause the diary existed and was present at the search location].)
There is nothing in Izazaga to suggest disagreement with this settled proposition. To the contrary, Izazaga expressly adopts it. It states, "[P]etitioner's argument misinterprets the scope of the self-incrimination clause, which `protects a person only against being incriminated by his own compelled testimonial communications.'" (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 366, original italics.)
(1c) We conclude that because appellant voluntarily created the subject writings and the prosecutor obtained them from the trial court, not appellant, there was no violation of appellant's privilege against self-incrimination.
5. The reciprocal discovery statutes (§ 1054 et seq.)
(3) The linchpin of appellant's next contention is this statement in In re Littlefield (1993) 5 Cal. 4th 122, 129 [19 Cal. Rptr. 2d 248, 851 P.2d 42]:[12] "In criminal proceedings, under the reciprocal discovery provisions of section 1054 et seq., all court-ordered discovery is governed exclusively by and is barred except as provided by the discovery chapter newly enacted by Proposition 115. (§§ 1054, subd. (e), 1054.5, subd. (a).)"
Appellant, based upon this language, argues: "In order to determine whether the discovery of appellant's writings was lawful, consequently, the *1026 four corners of the new discovery scheme must be scrutinized. If such discovery was not authorized by the latter scheme, then it was `barred.'"
Appellant then proceeds to "scrutinize" the statute, readily concluding the subject "discovery" is outside section 1054.3.[13] (Respondent concedes as much.) Appellant then turns to section 1054.4, relied upon by the trial court and respondent, which provides: "Nothing in this chapter shall be construed as limiting any law enforcement or prosecuting agency from obtaining nontestimonial evidence to the extent permitted by law on the effective date of this section."
Appellant concedes this section authorizes a prosecuting agency to obtain "nontestimonial evidence" outside the "four corners" of the discovery statutes but only "nontestimonial evidence."
Finally, appellant concludes that because the subject writings are communicative (citing Schmerber v. California, supra, 384 U.S. 757) and contain factual assertions they are "testimonial" and therefore not authorized by section 1054.4.
We find the contention a sophism. It is erroneously based upon the notion that the prosecutor's motion was a "discovery" motion to which the reciprocal discovery statutes applied. It was not.
To return to the linchpin language of Littlefield: "In criminal proceedings, under the reciprocal discovery provisions of section 1054 et seq., all court-ordered discovery is governed exclusively by and is barred except as provided by the discovery chapter...." (5 Cal.4th at p. 129, italics added.)
The statute makes clear the meaning of "discovery" in its statement of purposes: "To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested." (§ 1054, subd. (b).)
In making its motion, the prosecutor sought no evidence from appellant, testimonial or nontestimonial. The evidence sought by the prosecutor was *1027 possessed by the trial court (not a "party") and it was from the trial court the prosecutor sought and obtained it.[14]
In rejecting a similar "four corners scrutiny" argument, People v. Superior Court (Broderick) (1991) 231 Cal. App. 3d 584, 594 [282 Cal. Rptr. 418], stated, "Proposition 115 discovery procedures apply only to discovery between the People and the defendant. They are simply inapplicable to discovery from third parties." (See also 5 Witkin & Epstein, Cal. Criminal Law (1993 Supp.) § 2498D, pp. 16-17.)
We add these brief observations. In delivering the writings to the court, appellant makes no claim that he acted pursuant to the reciprocal discovery statutes. Yet by that delivery, and dispossession, he would foreclose not only reciprocal "discovery" but "normal investigative efforts." (5 Witkin & Epstein, Cal. Criminal Law, supra, § 2498D, p. 17.)
Additionally, appellant makes no claim that by granting the prosecutor's motion the trial court ordered appellant to disclose anything, testimonial or nontestimonial.
Finally, we note that as used in section 1054.4 the writings, although communicative, were "nontestimonial." The section "makes clear that it is not directed at normal investigative efforts of law enforcement agencies." (5 Witkin & Epstein, Cal. Criminal Law, supra, § 2498D, p. 17.) Seizing murder checklists and diaries containing evidence are normal investigative efforts. (See, e.g., People v. Miller, supra, 60 Cal. App. 3d 849; 1 LaFave, Search & Seizure, supra, §§ 2.6(d) and 2.6(e), pp. 487-494.) In concluding otherwise appellant misreads Schmerber v. California, supra, 384 U.S. 757, and Doe v. United States, supra, 487 U.S. 201.
In Schmerber the issue was whether compelling a defendant to give a blood sample was "testimonial" and thus violative of the Fifth Amendment. In Doe the issue was whether compelling Doe to execute consent bank disclosure forms was "testimonial." (Doe held it was not.) Similarly, when the issue involved compelling a defendant to do something (give a handwriting exemplar, try on a jacket, make sounds) courts have determined whether the compelled act is "testimonial." (See Doe v. United States, supra, 487 U.S. at pp. 210-211 [101 L.Ed.2d at p. 197].) Implicit in such use of "testimonial" is "compulsion." It is in that sense that the term is used in section 1054.4. (See United States v. Moody, supra, 977 F.2d 1145; Fisher v. United States, supra, 425 U.S. 391, 399-400 [48 L. Ed. 2d 39, 49-50].) As we have noted, *1028 voluntarily created writings do not involve compelled testimony. (See also Evid. Code, § 140: ["`Evidence' means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact."]; Stern v. Superior Court (1947) 78 Cal. App. 2d 9, 13 [177 P.2d 308] ["All evidence is not testimony. Testimony is limited to that sort of evidence which is given by witnesses speaking under oath or affirmation".]). Appellant's contention that "every written ... statement ... is necessarily testimonial" was explicitly rejected by Doe v. United States, supra, 487 U.S. 201, 208-209 [101 L. Ed. 2d 184, 196].
In holding the trial court properly furnished the inculpatory writings to the prosecutor[15] we implement the purpose of the reciprocal discovery statutes: "To promote the ascertainment of truth in trials...." (§ 1054, subd. (a).) As Justice Powell observed in United States v. Nobles: "`The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.'" (United States v. Nobles, supra, 422 U.S. 225, 231 [45 L. Ed. 2d 141, 149].)[16]
B. Reasonable Doubt.
Appellant contends the trial court erred in giving the standard reasonable doubt instruction. (CALJIC No. 2.90.) We disagree.
The California Supreme Court (People v. Jennings (1991) 53 Cal. 3d 334, 385-386 [279 Cal. Rptr. 780, 807 P.2d 1009]; People v. Johnson (1992) 3 *1029 Cal.4th 1183, 1234 [14 Cal. Rptr. 2d 702, 842 P.2d 1]; People v. Sandoval (1992) 4 Cal. 4th 155, 185-186 [14 Cal. Rptr. 2d 342, 841 P.2d 862]; People v. Noguera (1992) 4 Cal. 4th 599, 633-634 [15 Cal. Rptr. 2d 400, 842 P.2d 1160]) and the United States Supreme Court (Victor v. Nebraska (1994) 511 U.S. ___ [127 L. Ed. 2d 583, 114 S. Ct. 1239]) have both found CALJIC No. 2.90 constitutional.
C. CALJIC Nos. 2.03 and 2.62.
(4) Appellant contends the trial court erred in giving a consciousness of guilt instruction (CALJIC No. 2.03).[17] We disagree.
It was for the jury to determine whether the note appellant left for his parents and some of his statements to Detective Reed were "false or deliberately misleading." If the jury found them so, CALJIC No. 2.03 provided appropriate legal guidance. (See People v. Bacigalupo (1991) 1 Cal. 4th 103, 127-127 [2 Cal. Rptr. 2d 335, 820 P.2d 559]; People v. Kelly (1992) 1 Cal. 4th 495 [3 Cal. Rptr. 2d 677, 822 P.2d 385]; People v. Liss (1950) 35 Cal. 2d 570, 576 [219 P.2d 789]; People v. Waller (1939) 14 Cal. 2d 693, 702 [96 P.2d 344].)
(5) Appellant also contends the trial court erred in giving CALJIC No. 2.62[18] (failure to deny or explain evidence). We disagree.
The instruction, if justified by the evidence, does not violate a defendant's privilege against self-incrimination, deny him the presumption of innocence, nor violate due process. (People v. Saddler (1979) 24 Cal. 3d 671, 678 [156 Cal. Rptr. 871, 597 P.2d 130].)
When a defendant testifies but fails to deny or explain inculpatory evidence or gives a "bizarre or implausible" explanation, the instruction is *1030 proper. (People v. Mask (1986) 188 Cal. App. 3d 450, 455 [233 Cal. Rptr. 181]; see also People v. Belmontes (1988) 45 Cal. 3d 744, 784 [248 Cal. Rptr. 126, 755 P.2d 310].) "[T]he applicability of CALJIC No. 2.62 is peculiarly dependent on the particular facts of the case." (People v. Roehler (1985) 167 Cal. App. 3d 353, 393 [213 Cal. Rptr. 353].)
Appellant testified, failed to deny or explain inculpatory evidence, and gave a bizarre and implausible explanation. We cite only some of the many examples.
Appellant gave detailed and specific testimony about his prolific consumption of alcohol and cocaine during the afternoon of March 28, 1992, but had no memory of inculpatory events during that same afternoon: he did not remember tying the victim's wrists and elbows; he did not remember double-looping the rope around the victim's neck and strangling her; he did not remember seeing the noose around the victim's neck after he had strangled her (he saw only her "eyes"); although too weak to lift the victim appellant did not explain how she was found wrapped in a tarp and then covered by a blanket; although appellant testified he called out for help and looked for neighbors to assist the victim, he did not explain why he then drove the victim's car to withdraw $200 and did not seek help for her; and appellant failed to explain what appeared to be his murder checklist.
The trial court properly gave CALJIC No. 2.62.
DISPOSITION
The judgment is affirmed.
Lillie, P.J., concurred.
JOHNSON, J.
I respectfully dissent from the majority's holding the defendant's diary was properly turned over to the prosecution.
The majority affirms the trial court's order releasing the diary to the prosecution on a ground not raised in the parties' briefs: defense counsel had a duty to voluntarily disclose the diary anyway. (Maj. opn., ante, at pp. 1018-1020.) Government Code section 68081 provides, "Before ... a court of appeal ... renders a decision in a proceeding ... based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party." In their briefs, *1031 the parties focused exclusively on the issues of whether disclosure of the diary was permissible under the criminal discovery statutes (Pen. Code, §§ 1054-1054.7)[1] and whether its disclosure to the prosecution would violate defendant's privilege against self-incrimination.[2] If the majority believes the trial court's order may be upheld on the ground defense counsel had an ethical duty to disclose the diary to the prosecution, then it is bound by statute as well as fundamental fairness to order a rehearing on that issue.
I would join the majority in issuing such an order because I am not convinced the issue is as cut-and-dried as the majority seems to believe. While the cases cited by the majority are surely on point they are not dispositive. People v. Meredith (1981) 29 Cal. 3d 682 [175 Cal. Rptr. 612, 631 P.2d 46] did not involve the duty of a defense attorney to voluntarily turn over incriminating evidence to the state. While the court suggests in dictum such a duty exists in certain circumstances, it does not follow all such evidence should be disclosed in all circumstances. (Id. at p. 693, fn. 7.) People v. Superior Court (Fairbank) (1987) 192 Cal. App. 3d 32, 39-40 [237 Cal. Rptr. 158] stated defense counsel must immediately inform the trial court when choosing to remove, possess, or alter physical evidence pertaining to the crime and the court must then take appropriate action to ensure the prosecution has timely access to the evidence. The evidence in Fairbank was the purported murder weapon which the defense counsel allegedly obtained from the defendant factors which may distinguish Fairbank from the case before us. (See discussion below.) Finally, People v. Lee (1970) 3 Cal. App. 3d 514 [83 Cal. Rptr. 175], was a case in which the evidence was seized pursuant to a warrant from a third party who was holding it for safekeeping under an agreement between defense counsel and the prosecutor. The only similarity between Lee and the present case is that the evidence, defendant's bloodstained boots, again an item of physical evidence, was given to defense counsel by a third party.
All three cases relied upon by the majority involved physical evidence of the crime: in Meredith, the victim's wallet; in Fairbank, the alleged murder weapon; in Lee the boots with which the defendant allegedly tried to kick the victim to death. I, for one, would like to hear argument on whether the defendant's private thoughts committed to paper are analogous to the evidence in the above cases. I would also like to hear argument on the ramifications of a holding incriminating writings must be voluntarily turned over to the prosecution. Would an attorney defending a tax evasion or other *1032 white-collar crime involving hundreds or even thousands of documents have to make a determination as to each page of each document whether it should be revealed to the prosecution? What would the ramifications of such a rule be on the defendant's right to effective assistance of counsel?[3]
Although Lee involved evidence given to defense counsel by a third party, the court did not focus on the significance of that fact. I would like to hear argument on the consequences of a policy of revealing to the prosecutor information received in confidence from a third party. What effect would such a policy have on the willingness of third parties to come forward with evidence which might be helpful to the defense? What would be the effect on the defense attorney's willingness to receive such evidence? Will the mere risk that such evidence may turn out to be incriminating be sufficient to convince attorneys to adopt an attitude of calculated ignorance?
Before holding defense counsel owed a duty to voluntarily turn over defendant's diary to the prosecution, a duty which the trial court merely facilitated counsel in meeting, we should hear argument on the foregoing questions and other relevant considerations the parties may choose to bring to our attention.[4]
The majority also concludes the criminal discovery statutes do not apply to this case because the diary was in the possession of the court, not defense counsel, and the criminal discovery statutes are inapplicable to third parties. The majority further concludes even if the criminal discovery statutes were *1033 applicable the diary was discoverable as "nontestimonial evidence" pursuant to section 1054.4. I respectfully disagree with both conclusions.
Although defense counsel did not explain why he delivered the diary to the trial court under seal, he did state to the court during argument on the prosecutor's motion to produce, "[W]e lodged those papers with the court in a sealed condition. We, the defense, did for safekeeping for the defense." I conclude from this statement defense counsel did not intend to surrender possession to the court, but to retain constructive possession of the documents anticipating a hearing on their discoverability at some future time. Furthermore, the transcript of the hearing on the People's motion to produce clearly shows the court and the parties were operating on the assumption the criminal discovery rules applied and that the issue was whether the documents were discoverable under section 1054.4 which provides, "Nothing in this chapter shall be construed as limiting any law enforcement or prosecuting agency from obtaining nontestimonial evidence to the extent permitted by law on the effective date of this section." (Italics added.)
Section 1054.4 does not authorize discovery of statements made by the defendant in his personal diary because such evidence is testimonial in character. In Izazaga v. Superior Court (1991) 54 Cal. 3d 356, 367 [285 Cal. Rptr. 231, 815 P.2d 304] the court held with respect to the disclosure of defense witnesses' statements under section 1054.3, subdivision (a): "clearly such statements are `testimonial or communicative in nature.'" If statements made by the defendant's witnesses are "testimonial or communicative in nature" then surely so are statements made by the defendant himself.
My analysis, however, does not rest on Izazaga alone. On the question of what constitutes testimonial evidence, Izazaga cited Schmerber v. California (1966) 384 U.S. 757, 761 [16 L. Ed. 2d 908, 914, 86 S. Ct. 1826]. There, the United States Supreme Court held the privilege against self-incrimination "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature...." The court went on to explain the term "testimonial" "relates only to acts on the part of the person to whom the privilege applies." (Id. at p. 761, fn. 5 [16 L.Ed.2d at p. 914].) The court concluded requiring defendant to submit to a blood test did not violate his privilege against self-incrimination. "Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone." (Id. at p. 765 [16 L. Ed. 2d 908, 916], fn. omitted.) Later the same term the court equated testimonial evidence with the disclosure of "knowledge [defendant] might have." (United States v. Wade (1967) 388 U.S. 218, 222 [18 L.Ed.2d *1034 1149, 1155, 87 S. Ct. 1926].) More recently, the court held "... in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information," be an "expression of the contents of an individual's mind," "reveal, directly or indirectly, his knowledge of facts relating him to the offense or ... share his thoughts and beliefs with the Government." (Doe v. United States (1988) 487 U.S. 201, 210 & fn. 9, 213 [101 L. Ed. 2d 184, 197, 198-199, 108 S. Ct. 2341].)
In contrast, nontestimonial evidence consists of such things as fingerprints, blood and urine samples, appearances in lineups and handwriting and voice exemplars. (See People v. Collie (1981) 30 Cal. 3d 43, 55, fn. 7 [177 Cal. Rptr. 458, 634 P.2d 534], citing cases.) The purpose of section 1054.4 was to ensure such nontestimonial evidence, which was discoverable prior to enactment of the discovery provisions of chapter 10, would continue to be discoverable.
The fact the accused has committed his thoughts and knowledge to paper does not make this paper discoverable as "nontestimonial" real or physical evidence. Testimonial evidence is not limited to oral statements. In Doe v. United States, supra, 487 U.S. 201, the court observed, "There are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts. The vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege [against self-incrimination]." (487 U.S. at pp. 213-214 [101 L.Ed.2d at p. 199], fn. omitted; see also Gilbert v. California (1967) 388 U.S. 263, 266-267 [18 L. Ed. 2d 1178, 1182-1183, 87 S. Ct. 1951] in which the court drew a distinction, for purposes of determining what is testimonial evidence, between the defendant's handwriting and "the content of what is written....")
If, as respondent contends, a defendant's knowledge or thoughts about some aspect of the crime are discoverable under section 1054.4 merely because they exist on a piece of paper, then all writings by anyone with knowledge or thoughts about the crime, whether or not a prospective witness, would be discoverable under section 1054.4. Section 1054.3, which restricts discovery of written statements to those of witnesses, other than defendant, whom defendant intends to call at trial, would be meaningless. Such an interpretation would contravene the well-established rule a statute should be construed so as to give effect to all its provisions, not so that one section will destroy another. (Rodriguez v. Superior Court (1993) 14 Cal. App. 4th 1260, 1269 [18 Cal. Rptr. 2d 120].) Furthermore, by excluding the defendant's statements from discovery under section 1054.3 the drafters of Proposition 115 sought to avoid entangling Fifth Amendment issues in the *1035 authorization of prosecutorial discovery. (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 368.) Interpreting section 1054.4 as urged by the majority would judicially engraft onto the statute authorization for discovery of the very statements the drafters intended to exclude under section 1054.3.
If, as the prosecution argued, defendant's diary contained his plans for the murder of Ms. Huerta, disposal of her body, and escape from detection and capture then it clearly reveals his knowledge of the crime and facts relating him to the offense. Therefore, the diary is "testimonial" evidence under the authorities cited above.
A petition for a rehearing was denied May 19, 1994. Johnson, J., was of the opinion that the petition should be granted. Appellant's petition for review by the Supreme Court was denied July 28, 1994. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
NOTES
[1] Statutory references, unless otherwise noted, are to the Penal Code.
[2] The victim's friends called her Ruth, not Rufugia.
[3] The record does not disclose what information prompted Sherri Lucero's call. She testified that just prior to her call, her husband had received a telephone call.
[4] The police recovered a knife from a drawer in the bedroom where the victim's body was found.
[5] Among the recovered papers was a filled out deposit slip for the victim's Wells Fargo account, complete except for a signature, dated March 28, 1992, in the amount of $324.94.
[6] There is no number (8).
[7] Appellant's former girlfriend Jane lived in Seattle. Other writings refer to contacting her.
[8] In Lee, almost mirroring the instant facts, the defendant's wife gave his bloody boots (the attempted murder weapons) to a public defender investigator who gave them to defendant's public defender attorney who gave them to a magistrate, notifying the prosecutor he had done so. The prosecutor ultimately obtained the boots with a search warrant.
[9] Whether, by delivering a sealed envelope without other notice or explanation to the trial court and without notice to the prosecutor, he did less we are not asked to consider.
[10] California anticipated Warden v. Hayden in People v. Thayer (1965) 63 Cal. 2d 635 [47 Cal. Rptr. 780, 408 P.2d 108]. Justice Traynor, for a unanimous court, upheld a seizure of records, pursuant to a search warrant, against claims of Fourth and Fifth Amendment violations. He stated the prohibition against "mere evidence" was "impossible to understand." (Id. at p. 637.) He noted, "It has also been suggested that the rule protects privacy by preserving a man's most private papers from any scrutiny or seizure, however reasonable.... The difficulty with this rationale is that the rule protects, not private papers, but mere evidence. `There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized.' ... Private papers that are the instruments of crime, such as a spy's code books ... may be seized. Finally, it is impossible to sustain the mere evidence rule as a corollary of the privilege against self-incrimination. It is not limited to self-incriminating writings, and when such writings are obtained by seizure, instead of by subpoena, the defendant does not impliedly admit their genuineness.... Moreover, the papers are no less self-incriminating when they can be classified as contraband, instruments of crime, or fruits of crime.
"In California, the mere evidence rule is rejected by statute. (Pen. Code, § 1524, subd. 4)." (63 Cal.2d at p. 638, internal citations omitted.) (See also People v. Trujillo (1948) 32 Cal. 2d 105 [194 P.2d 681] [The prosecution obtained defendant's clothing and introduced expert testimony that it matched fibers found on the deceased victim's body. Fifth Amendment claim rejected].)
[11] The court repeated this holding: "Respondent does not contend that he prepared the documents involuntarily or that the subpoena would force him to restate, repeat, or affirm the truth of their contents. The fact that the records are in respondent's possession is irrelevant to the determination of whether the creation of the records was compelled." (465 U.S. at pp. 611-612 [79 L.Ed.2d at pp. 559-560].) Also: "If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged." (Id. at p. 612, fn. 10 [79 L.Ed.2d at p. 560].)
In her concurring opinion, Justice O'Connor was even more emphatic: "... the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." (465 U.S. at p. 618 [79 L.Ed.2d at p. 563].)
[12] Littlefield held lawful a trial court order requiring defense counsel to contact a likely defense witness in order to acquire her address for disclosure to the prosecution. (5 Cal.4th at p. 137.) For technical reasons it invalidated the trial court's order holding defense counsel in contempt for noncompliance.
[13] The section reads: "The defendant and his or her attorney shall disclose to the prosecuting attorney:
"(a) The names and addresses of persons, other than the defendant, he she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.
"(b) Any real evidence which the defendant intends to offer in evidence at the trial."
[14] In granting the prosecutor's motion the trial court stated, "I am now going to turn the documents over to [the prosecutor]."
[15] Since appellant did not retain possession of the inculpatory writings we need not consider whether, had they been retained, they were "discoverable" after appellant waived his privilege against self-incrimination by testifying (inconsistently with those writings).
[16] We find the dissent curious. It does not explain how or why unprivileged, highly relevant evidence may be concealed from a jury if only the defendant can transfer it to a court before the prosecution seizes it. Instead, the dissent chooses to: (1) erroneously claim our holding depends upon a defense counsel duty to relinquish the evidence (a nonissue because defense counsel did relinquish the evidence) and (2) ignore binding United States Supreme Court and California Supreme Court authority that unvouched for, voluntarily created writings are not testimonial.
The dissent does not suggest the prosecutor could not have obtained the writings while they were in appellant's closet (e.g., by search warrant) or when appellant's sister Sherri had them or when appellant's sister Kathy had them or when Attorney Henry Gonzales had them or when a public defender investigator had them. But somehow, according to the dissent, by transferring possession of this unprivileged, highly relevant evidence to a court it became concealable! We think the dissent should explain its curious notion that courts are safe burial grounds of the truth.
[17] The instruction reads: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime for which he is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination."
[18] The instruction reads: "In this case defendant has testified to certain matters.
"If you find that defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.
"The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
"If a defendant does not have the knowledge that he would need to deny or to explain evidence against [him,] it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence."
[1] Unless otherwise indicated to the contrary, all future references are to the Penal Code.
[2] I agree with the majority's conclusion disclosure of the diary is not barred by the privilege against self-incrimination. However, for reasons I express below, I disagree the diary is discoverable under section 1054 et seq.
[3] If, as the majority asserts, California law clearly holds that once defense counsel accepted the diary from defendant's sister he had a duty to turn it over to the prosecutor, we should also request additional briefing on the issue of whether defendant was denied effective assistance of counsel.
[4] The majority misconstrues the basis of my dissent on this issue. (See maj. opn. fn. 16, ante, at p. 1028.) It is not my view that courts, any more than law offices, should be "safe burial grounds of the truth." (Cf. People v. Lee, supra, 3 Cal. App.3d at p. 526, quoting from State v. Olwell (1964) 64 Wash. 2d 828 [394 P.2d 681, 684-685, 16 A.L.R. 3d 1021].) It is my view Government Code section 68081 means what it says: no matter how convinced the court is that it has reached the correct legal conclusion on an issue, if that issue has not been briefed by the parties they must be afforded the opportunity to present their views on the matter through supplemental briefing. Thus, contrary to the view expressed by the majority in footnote 16, it not up to the dissent to explain why defendant's diary should not have been turned over to the prosecution. It is up to counsel on appeal to explain why the evidence should or should not have been turned over to the prosecutor.
The majority seeks to avoid a rehearing on this issue by claiming defense counsel's duty to relinquish the evidence is not the basis of its holding and, in any event, this is a nonissue because defense counsel did relinquish the evidence. If I mistook the lengthy discussion of an attorney's duty to turn over evidence (maj. opn., ante, at pp. 1018-1020) for a holding when it was merely dictum, I stand corrected. For the record, however, I would note it is clear defense counsel did not relinquish the evidence to the prosecution or there would have been no need for the prosecution to file a motion to produce. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/523951/ | 875 F.2d 868
Unpublished DispositionNOTICE: 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.UNITED STATES of America, Appellee.v.Khalid Jamil SHABA, Appellant.
No. 88-1535.
United States Court of Appeals, Sixth Circuit.
May 2, 1989.
Before ALAN E. NORRIS and RYAN, Circuit Judges, and CHARLES M. ALLEN*, Senior District Judge.
PER CURIAM.
1
This case concerns the appeal of the defendant from his jury conviction of unauthorized acquisition and possession of food stamps having a face value of over $100.
2
In June 1987, Leonard Dorsette, an investigative aide for the Department of Agriculture, was given $170 worth of food stamps by Special Agents John Helgeson and Robert W. Wawrzyniak to exchange for cash with an individual who was known to Dorsette as "Mike" and who was later identified as Mufat Shaba. Dorsette was provided with a body transmitter and a microcassette tape recorder so that any conversations which took place could be monitored and recorded. Dorsette then proceeded around the corner in the direction of the Michigan and 31st Street Market where Mike worked.
3
When Dorsette entered the store and inquired, he was told that Mike was not there. The person who told him was identified to Dorsette as "Kelly," Dorsette told Kelly he had some food stamps, and Kelly said he would take care of it. Dorsette then gave Kelly the food stamps which had a value of $170 in return for receiving from Kelly cash in the amount of $110 or $120. The price was not negotiated, and there was testimony that it was common knowledge that the exchange rate on the street was 70% of the face value of the food stamps.
4
A few days subsequent to the meeting between Dorsette and Kelly, Dorsette returned to the market, making a small purchase while Agents Helgeson and Wawryzniak waited outside. After Dorsette rejoined the agents and gave descriptions of the two people inside the store, identifying them as Mike and Kelly, the Agents entered the store on a pretext. They were met by an individual who identified himself as Khalid Shaba, and who matched the description given by Dorsette of the man named Kelly.
5
At trial, the United States produced a tape recording, and Dorsette confirmed that it accurately reflected the brief conversation he and Kelly had at the market. Following voir dire by defense counsel, the tape was received into evidence without objection. Dorsette also testified that he had participated in the preparation of a transcript of the tape recording, and the transcript accurately reflected what appeared on the tape. That transcript included the statement, attributed to Kelly, that is central to this appeal: "I gave you one extra dollar."
6
Before the jury was called, Judge Gilmore and counsel listened to the tape to compare it with the transcript. Judge Gilmore stated that he thought the transcript accurately reflected the tape. Counsel for defendant agreed and said he had no objections. Shortly after the tape was admitted without objection, counsel for appellant stated that he had changed his opinion, and that he was going to object to the transcript's inclusion of the word "dollar" because he could not make that word out on the tape. The trial judge then stated that he would let the jury listen to it, and defendant could argue the matter to the jury.
7
Judge Gilmore gave a cautionary instruction to the jury before the tape was played. He did not explicitly state that the tape was to control in the event of a perceived conflict between the recording and the transcript. The impact of the instruction was the same, however, since it repeatedly emphasized that only the recording was in evidence.1 Mr. Shaba did not object to the instruction, tender an alternative, or request an additional instruction at the conclusion of the proof.
8
At oral argument, counsel for appellant, in effect, conceded that the only reversible error allegedly committed by Judge Gilmore was in allowing the jury to read the transcript. Reliance is placed upon the case of U.S. v. Robinson, 707 F.2d 872 (6th Cir.1983). Robinson involved 25-30 tape recordings, substantial portions of which were either inaudible or unintelligible. The trial judge did not acknowledge the accuracy of the transcripts. Neither could any witness verify the accuracy of the transcriptions. This Court held that the unintelligible portions of the tapes were so substantial as to make the recording as a whole untrustworthy, and that, therefore, the use of the transcripts at trial was improper.
9
The Robinson case reflects the concern that if the tape recordings, which are evidence, are unintelligible, the transcripts purporting to decipher those tapes will cease being mere aids and will become the evidence. When the inaudible portions are not so substantial as to render the entire recording untrustworthy, the trial court should order deletion of the unreliable portion of the transcript.
10
In light of appellant's failure to object to the introduction of the tape and to object to the cautionary instruction given by the judge when the tape was admitted, appellant has the burden of persuading this court that it was not plain error for the court to follow the procedure it did. This court cannot see any manifest injustice in the introduction of the tape recording or the wording of the cautionary instruction. United States v. Martin, 757 F.2d 770 (6th Cir.1985). In disposing of the issue in this manner, we do not mean to suggest that the trial court abused its discretion.
11
Even if we assume, without deciding, that appellant made timely objection to the jury's use of the transcript as it was written, there is no basis for reversal. In contrast to Robinson, this case reflects that the trial judge listened to the tape, and had no difficulty at all acknowledging the accuracy of the transcript. In contrast to Robinson, this case included a witness who was a participant in the conversation in question, and who confirmed the accuracy of the transcript. Also testifying at trial was another witness who had heard the conversation as it was being transmitted, and he, too, confirmed that the transcript accurately reflected what he had heard.
12
Even Mr. Shaba's counsel, upon hearing the original tape, agreed that the transcript accurately reflected the recording, and it was not until the next day that he reconsidered and decided that the word "dollar" was insufficiently clear. Our attention has not been directed to any indication that appellant cross-examined Dorsette regarding the accuracy of the transcript, preparation of which Dorsette had overseen. In closing argument, appellant's counsel did not question the accuracy of the transcript or refer to any unintelligible portion of the tape. The defense theory did not question that an illegal transaction had taken place, or that it was recorded on the tape; rather, it questioned whether Mr. Shaba was the person who had been involved in that transaction.
13
We note also that the evidence was very strong as to appellant's guilt. Dorsette positively identified defendant and confirmed the illegal purchase.
14
In light of the above, we hold that the trial judge did not err, and that the conviction should be affirmed. In so doing, we note that the other arguments raised by the appellant in his brief are without merit.
15
AFFIRMED.
*
The Honorable Charles M. Allen, United States District Court for the Western District of Kentucky, sitting by designation
1
The instruction given at the time the tape was to be played was as follows:
Members of the jury, they are going to play a tape now and they are going to give you the transcript of it. Now the transcript is not evidence. That is just to help you listen to the tape. The only evidence before you is the tape itself. So the transcript is merely being given to you to assist you in listening to the tape, but the evidence is the tape itself. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/545438/ | 909 F.2d 511
Federal Deposit Insurance Corp.v.Alexander (Larry K.)
NO. 89-5561
United States Court of Appeals,Eighth Circuit.
APR 16, 1990
1
Appeal From: D.Minn.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/224308/ | 179 F.2d 827
NORWICH UNION INDEMNITY CO.v.HAAS et al.
No. 9980.
United States Court of Appeals, Seventh Circuit.
February 7, 1950.
Melville A. Gray, Frank H. Masters, Jr., and Gray, Thomas & Wallace, Joliet, Ill., for appellant.
Erwin W. Roemer, James A. Velde, Chicago, Ill. (Gardner, Carton & Douglas, Wayland B. Cedarquist, Chicago, Ill., of counsel), for appellee.
Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judge.
LINDLEY, Circuit Judge.
1
Plaintiff appeals from a judgment for defendants in an action in which plaintiff sought a declaratory judgment that defendant Haas had violated the terms of an insurance policy issued to him by plaintiff and that, consequently, plaintiff was not liable to pay a judgment rendered against Haas in the state court. The policy provided that, as a condition precedent to liability of the company, the insured would comply with all the terms of the policy, one of which was that "The Insured shall cooperate with the Company, and, upon the Company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits." It was Haas' alleged breach of this obligation upon which plaintiff relied.
2
On July 27, 1947, while the policy was in effect, Haas was involved in an accident in which defendant DeMitchell was injured and the automobile of defendant Halstead damaged. The automobile driven by the insured, Haas, collided with the Halstead car, driven by DeMitchell, on Route 66, on the outskirts of Joliet. The next day plaintiff, through its agents, instituted its investigation of the accident. Maute, an attorney retained by plaintiff, took a statement from Haas in which the latter averred that, at the time of the accident, he was returning to Joliet from Chicago, where he had attended a party. Haas testified that, before he signed the statement, he thought he had asked Maute "if it made any difference" where the party had been held. Haas was then referred to Harvey, an attorney whom Maute had employed to assist in the investigation. Haas was in Harvey's office at the time and in the presence of defendant DeMitchell when the latter said to Harvey that Haas had been drinking, (Haas admitted to Harvey that he had had "a few beers") and insisted that the accident had been due to the fact that Haas was driving without lights. When Harvey observed that it would be impossible for a man to drive from Chicago to Joliet at night without lights, DeMitchell told Harvey, "* * you will find that the party they attended * * * was held locally on 4-A Highway." Harvey thereupon asked Haas where he had been before the accident; Haas asked Harvey if it made any difference. Harvey replied that "it didn't make any difference," but that he wanted the facts concerning the accident. Haas then said that the party had been somewhere in Chicago.
3
In August, 1947, after defendants DeMitchell and Halstead had filed their complaint against Haas in the Circuit Court, Maute delivered his file on the accident to the lawyers who had been employed by plaintiff to defend the suit. Thereafter, neither Maute nor Harvey had any further connection with the case, which was placed in the hands of Mr. Masters, a member of the defending firm. In January, 1948, when his discovery deposition was taken, Haas testified concerning the party from which he stated he was returning at the time of the accident. Some three months later, Masters was told, by the attorney for DeMitchell and Halstead, "* * * you will find that Mr. Haas and the people in his car were at Elsie's," a tavern located on Route 66 about eight blocks from the scene of the accident. Masters promptly called Mrs. Haas, who, when told of what DeMitchell's attorney had said, admitted that the party had not been held in Chicago but at the Hi-Ho Club, near Lockport. Haas, also, admitted that the story he had related in his earlier statements and on discovery deposition was not true in that one respect, whereupon Masters told him that his action had been such as to furnish a basis for disclaimer of liability by the insurance company. However, with the authorization of plaintiff, Masters continued to represent Haas after the latter signed a reservation of rights agreement by which plaintiff reserved any defense it might have, due to Haas' "failure to cooperate."
4
The action in the state court resulted in a judgment against Haas, which was affirmed by the Appellate Court. Meanwhile, subsequent to the entry of judgment by the trial court but prior to the appeal therefrom, plaintiff had filed, in the District Court, its complaint for a declaratory judgment absolving it from all liability upon the policy held by Haas. The court below held that Haas had not broken the promises made by him in the cooperation clause, for the reason that his statement that he had been in Chicago prior to the accident did not relate to a material issue and that, even if the alleged breach were regarded as material, it had been waived by plaintiff; accordingly, judgment was entered denying the relief sought.
5
It is plaintiff's contention that the evidence shows conclusively that Haas failed to perform his obligations under the policy and that plaintiff did not waive such breach, and, consequently, that the judgment should be reversed. Plaintiff also urges that the findings of fact are insufficient and, in part, incorrect.
6
Plaintiff's criticism of the trial court's findings stems from the fact that no reference is made therein to Haas' misstatements in his deposition and that paragraph 6 of the findings contains an erroneous statement of fact. With respect to the lower court's failure to find that Haas had testified falsely, we observe that, under the decision of this court, in Gay Games, Inc. v. Smith, 7 Cir., 132 F.2d 930, 932, Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A., does "not require the court to do more than to cover the ultimate fact issues" (See also Klimkiewicz v. Westminister Deposit & Trust Co., 74 App.D.C. 333, 122 F.2d 957, 958, and Schilling v. Schwitzer-Cummins Co., 79 U.S.App.D.C. 20, 142 F.2d 82.) Consequently such finding was unnecessary, for Haas' misstatements, which stood admitted, were not ultimate facts at issue in this case.
7
Paragraph 6 of the findings of fact, which plaintiff asserts is incorrect, is as follows: "On July 28, 1947, the day following said accident, plaintiff insurance company, through its agents, upon being informed of the happening of said accident, caused an investigation to be made concerning the same. In the course of the investigation on said day, plaintiff insurance company, through its agents, asked defendant Walter C. Haas where he had been before the accident. Whereupon said Walter C. Haas asked whether it made any difference where he had been before the accident and whether it was any of their business. In reply, said agents said in substance that they were not interested in what he was doing before the accident; and what they wanted was the facts at the time of the accident. Thereupon said Walter C. Haas stated that he had attended a birthday party in the City of Chicago, Illinois, before the accident, and signed a written statement to that effect."
8
Plaintiff, apparently relying on the last eight words of this paragraph, in conjunction with the word "thereupon" in the last sentence thereof, asserts that it is stated, in effect, that "Haas signed his written statement after his conversation with Harvey and DeMitchell," whereas the "true fact * * * is that Haas signed the statement before he ever saw Harvey." So to interpret this finding is to assume that Haas signed only one statement — the one prepared by Maute — whereas it appears from the record that he signed a second one in Harvey's office, obviously after he had seen and talked with Harvey. Moreover, plaintiff's argument assumes that Haas asked only Harvey whether it made any difference where the party had been held, while Haas testified that he thought he had discussed this matter with Maute as well as Harvey. The court's use of the word "agents" in its finding would seem to imply that it so found. And, finally, even were this court to regard the last eight words as "clearly erroneous" the sequence of these events, all of which occurred in the space of a few hours on the same morning can hardly be said to be of such vital importance, in relation to the ultimate fact found by the District Court, as to require or justify a reversal of its decision thereon.
9
Defendants assert that, in order for an insurance company to escape liability on the basis of the insured's breach of the cooperation clause in a liability policy, it must establish that the misstatement, where it is a misstatement on which the insurance company relies, relates to a material fact and has operated to its prejudice. Plaintiff replies that it has no quarrel with this proposition, but insists that Haas' misstatements were as to a material fact and prejudicial to it.
10
That a misstatement must be both material and prejudicial in order to constitute a breach of the cooperation clause of a liability insurance policy is evident from the Illinois cases. Thus, in Harrison v. U. S. Fidelity & Guaranty Co., 255 Ill. App. 263, 286, the court stated: "Whether (the insured) rendered all reasonable cooperation and assistance to defendant, whether he intentionally made false and fraudulent statements to defendant as to the accident shortly thereafter, whether defendant relied upon the same or it or its counsel were deceived thereby * * * were all questions of fact for the jury and not for the court to determine." (Emphasis supplied.) And, in Rowoldt v. Cook Farmers Mutual Ins. Co., 305 Ill.App. 93, 26 N.E. 2d 903, 906, where, after verdict against the insurance company, the trial court granted the company's motion for a new trial on the basis of a breach by the insured of the policy's cooperation clause (the insured had told representatives of the insurer that he was not involved in an accident which he was charged with having caused and in which he later admitted he had been involved), the appellate court reversed the new trial order, holding that, among other things, "The rights of the insurance company were not prejudiced by the failure of Rowoldt, the insured, to file the written notice or truthfully to inform the company of the facts in the first instance."
11
But whether Haas' statement that the party was held in Chicago was a misstatement of a material fact is not necessarily decisive in this case. In the course of the trial of the negligence action against Haas the trial judge expressed doubt as to its materiality. He asked, "Does it make any difference whether the people were to Elsie's or Hi Ho Inn or my house or your house insofar as what was happening?" Furthermore, plaintiff's present insistence that the situs of the party was a material fact hardly coincides with the statement of its agent, Harvey, that "it didn't make any difference." Despite this evidence, we shall assume arguendo the materiality of the misstatement. The record reflects no prejudice to plaintiff, as the Illinois cases require, in view of the fact that its agent knew or should have known the true fact, after having been informed of it by DeMitchell.
12
Plaintiff denies that Harvey had any knowledge that Haas was not telling the truth, but it seems beyond doubt that, after hearing DeMitchell's story, had he promptly and diligently investigated the disputed question of fact, or had he made an attempt to impress upon Haas, when Haas asked him if it made any difference where the party had been held, that it might be a material fact, he could have learned the truth, for when Masters did investigate later he did promptly discover the truth. Plaintiff suggests that Harvey was under no compulsion to give any credence to DeMitchell's statement, since DeMitchell was "a person with whom plaintiff's interests were in complete conflict." But the same thing is true of DeMitchell's attorney, yet, when the latter told Masters, in almost identical words, what DeMitchell had told Harvey, Masters, with no more information than Harvey had possessed several months earlier, displayed no hesitation in initiating an investigation which immediately revealed the truth.
13
Plaintiff asserts that it was prejudiced not so much by Haas' false statement to its agents as by his subsequent repetition which cast doubt upon his credibility and hampered it in its defense of the suit brought against him. But Haas' reiteration was no more than a projection of his original false statement to plaintiff and would have been forestalled had plaintiff's agent, Harvey, exercised ordinary diligence in ascertaining the true facts. Consequently, plaintiff, chargeable with the knowledge attributable to its agent, Harvey, that the party from which Haas was returning had not been held in Chicago, was not deceived and, consequently, not prejudiced by Haas' statement to the contrary. Under the Illinois decisions, therefore, Harrison v. Fidelity & Guaranty Trust Co., 255 Ill.App. 263; Rowoldt for Use of Flanagan v. Cook Farmers Mutual Ins. Co., 305 Ill.App. 93, 26 N.E.2d 903, there was no breach of the cooperation clause by Haas.
14
Over and beyond the questions of materiality or prejudice to plaintiff, the findings of fact of the trial court, supported by substantial evidence, clearly sustain the court's ultimate conclusion that even though the alleged breach may have been with respect to a material issue, plaintiff waived the point. The court found that, upon inquiry by the plaintiff's investigators, Haas was asked where he had been before the accident and that Haas inquired whether it made any difference where he had been, and whether it "was any of their business"; that in reply, the agent said that plaintiff was not interested in what he was doing on that day before the accident, and that DeMitchell also advised plaintiff's agent that Haas had not been in Chicago before the accident but at a night club near Joliet. These evidentiary findings are amply supported by the evidence, and from them and other evidence in the record, it is apparent that plaintiff's agent at least had notice of the dispute about the location of the party as a result of DeMitchell's statement, if he did not actually know the location. The agent pursued the matter no further. He did not even inform his principal, the plaintiff, that a question about where Haas had been had arisen. Thus, on the day after the accident, the agent was put on notice of the fact that a dispute existed. It seems settled in Illinois that an insurance company waives its defense by continuing under the policy when it "knows or in the course of ordinary events should have known" the facts in question and further that the company was bound to have known, if in the exercise of ordinary diligence it could have known. These conclusions, we think, are amply supported by Illinois authorities. Korch v. Indemnity Ins. Co., 329 Ill.App. 96, 104, 67 N.E.2d 298; A-1 Cleaners & Dyers v. American M. L. Ins. Co., 307 Ill.App. 64, 73, 30 N.E. 2d 87; Stevens v. Fidelity & Casualty Co. of N. Y., 178 Ill.App. 54, 62; Columbian Three Color Co. v. Aetna Life Ins. Co., 183 Ill.App. 384, 389. See also cases discussed in 81 A.L.R. 1374, et seq. Upon careful review of the evidence we think there can be no question that it amply supports the ultimate finding of waiver by plaintiff.
15
We have considered plaintiff's contention that the findings of the District Court are insufficient. It must be remembered that Rule 52 of Federal Rules of Civil Procedure does not require the trial court to make findings on all the facts presented or to make detailed evidentiary findings; if the findings are sufficient to support the ultimate conclusion of the court they are sufficient. Gay Games, Inc. v. Smith, 7 Cir., 132 F.2d 930, 932. In Schilling v. Schwitzer-Cummins Co., 79 U.S.App.D.C. 20, 142 F.2d 82, 84, the court said: "The ultimate test as to the adequacy of findings will always be whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence." See also Bowles v. Cudahy Packing Co., 3 Cir., 154 F.2d 891, 894. In view of these decisions we think the findings were sufficient. Thus, the court found ultimately that the insurer did not breach the cooperation clause and that, even though there was a breach, plaintiff had waived it. The more detailed findings fully support these conclusions and the evidence supports the findings.
16
The judgment is affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2263542/ | 133 N.J. Super. 234 (1975)
336 A.2d 40
KINGSTON EAST REALTY CO., A PARTNERSHIP OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued October 29, 1974.
Decided March 26, 1975.
*236 Before Judges COLLESTER, LORA and HANDLER.
Mr. Harvey M. Douglen argued the cause for appellant (Stier and Douglen, attorneys).
Mr. Stephen A. Herman, Deputy Attorney General argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
The opinion of the court was delivered by HANDLER, J.A.D.
Plaintiff Kingston East Realty Co. instituted this action by filing a complaint in lieu of prerogative writs against the State of New Jersey, by the Commissioner of Transportation. In the first count of the complaint plaintiff sought damages because the actions of the Department of Transportation in delaying the issuance of a building permit and in otherwise inhibiting or discouraging the preparations for and development of the land for a large 18-building research, office and laboratory complex, caused plaintiff to suffer substantial financial loss. The second count, which incorporated the factual allegations of the first count, *237 asserted that the activities of the State resulted in "constructive condemnation" since the utilization of the property through development had thereby been substantially inhibited or denied. The third count characterized the conduct of the State in negotiating for or acquiring other properties, but refusing to negotiate for or acquire the premises in question, as arbitrary and capricious and as a result substantial damages were suffered. Plaintiff sought on these latter two counts a judgment compelling defendant to institute an action for the acquisition of its property. The fourth count, which also included by reference preceding allegations, stated that there had been a depreciation in the value of plaintiff's property for which it demanded judgment seeking the appointment of commissioners to assess the value of damages. On the second, third and fourth counts those "sounding" in condemnation plaintiff sought an award for various expenditures under N.J.S.A. 20:3-26(c). The complaint was verified and supported by a certification in lieu of affidavit by one of plaintiff partners.
On application plaintiff obtained an order to show cause why the requested relief should not be granted. The State made a motion returnable on the adjourned return day for an order to dismiss plaintiff's complaint on the ground that it failed to state a claim upon which relief could be granted. The judge entered an order dismissing the complaint with prejudice and plaintiff took this appeal.
The facts may be gathered from the pleadings, the moving papers and supporting briefs.
It appears that in 1964 plaintiff, a partnership, purchased approximately 93 acres of land fronting on Route 27 in Franklin Township, Somerset County, New Jersey. Under the applicable zoning ordinance the land may be used for research, office and laboratory purposes. In February 1971 a highway alignment preservation map was filed pursuant to N.J.S.A. 27:7-66. This map showed the proposed alignment of Route 92 Freeway, which included a portion of plaintiff's *238 property. In February 1972 a revised map was submitted, still including some of plaintiff's property.
It further appears that the State had acquired some properties for the Route 92 Freeway, utilizing funds from a bond issue of 1968. One of these acquisitions was a piece of property across from plaintiff's premises on the other side of Route 27. This property was one of four properties located in section 3 of the proposed plan and was the only parcel in that section which was taken. Plaintiff's property is in section 4, with respect to which there have been no acquisitions. It is also alleged that, since the defeat of the 1972 transportation bond issue, no further acquisitions or condemnation actions have been instituted in section 3. Plaintiff asserts that, according to the filed map of Route 92, his property is intended to be used for the construction of ingress and egress for the proposed road, and that the property already acquired across the street is of no use for the highway unless plaintiff's property is also obtained.
Plaintiff contends that "several years" after the alignment map was filed it decided to develop a research office laboratory complex. This decision allegedly was made after responses by the State that acquisition would not occur for some time. Engineers and architects were hired to prepare studies, surveys and plans for a complex consisting of 18 primary buildings, accessory buildings and roads. Financing was also obtained.
On January 8, 1973 plaintiff submitted an application for obtaining a building permit to the building code enforcement officer of Franklin Township. The application was forwarded to the Department of Transportation pursuant to N.J.S.A. 27:7-67. The Department notified plaintiff by letter dated March 7, 1973 that "the proposed building is in the center of the alignment [and] we are now preparing acquisition documents for our needs in this area." On March 8, 1973 plaintiff received a letter from the building code enforcement officer of Franklin Township that the building permit was *239 denied because of the action by the Department of Transportation. Thereafter plaintiff wrote to the Department of Transportation on July 23, 1973 asking for a statement of the Department's intention and received no reply. The complaint was then filed.
Plaintiff contends that the trial judge erred in denying its motion for summary judgment the judge having apparently so considered the respective motions of the parties. It is argued that its uncontradicted allegations of fact demonstrated that the State's actions constituted a "constructive or de facto taking."
N.J.S.A. 27:7-66 provides:
Whenever the location of a proposed line of any new State highway shall have been approved by the commissioner, the commissioner may file a certified copy of a map, plan or report indicating such proposed line, the width whereof shall not exceed what is reasonably required in accordance with recognized standards of highway engineering practice, with the county clerk of each county within which the proposed line of said new highway is to be located and with the municipal clerk, planning board and building inspector of each municipality within which said line is located.
The mere plotting and planning in anticipation of condemnation without any actual physical appropriation or interference does not constitute a taking or compel the State to institute condemnation proceedings. Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270 (1897); Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240 (1939); Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 377-378 (1971); Wilson v. Long Branch, 27 N.J. 360, 373-375, cert. den. 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104 (1958); Haycock v. Jannarone, 99 N.J.L. 183, 185 (E. & A. 1923); Annotation, "Condemnation Preimprovement Planning," 37 A.L.R.3d 127 (1971).
It is asserted that the Department has denied plaintiff "the right to use and enjoy" its property and that the Department has not rescinded its alignment map or revised its plans to indicate any change of its intention to build Route *240 92 over plaintiff's property. Aside from the issue of whether there was a temporary taking by the State of an interest in property in the nature of an option under N.J.S.A. 27:7-67, the actions complained of by plaintiff did not deprive it of the use of its property. The planning engaged in by the State involving plaintiff's property, the filing of an alignment map, the acquisition of a nearby parcel, and the refusal to abandon any long-range plan for the eventual acquisition of the property for the proposed highway did not, in actuality, bar plaintiff from utilizing and developing its property. Hence, a constructive or de facto taking did not occur. Cf. Jersey City Redev. Agency v. Bancroft Realty Co., 117 N.J. Super. 418, 424 (App. Div. 1971); East Rutherford Industrial Park, Inc. v. State, 119 N.J. Super. 352, 370 (Law Div. 1972).
There was, moreover, no such actual or threatened interference with the use of the property of such a permanent, serious or continuing nature, to justify the conclusion that a "taking" had occurred as of the time plaintiff's action was instituted. Cf. Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N.J. 539 (1963); Morristown Bd. of Ed. v. Palmer, 88 N.J. Super. 378 (App. Div. 1965), rev'd 46 N.J. 522 (1966); Grosso v. Millburn Twp. Bd. of Adj., 137 N.J.L. 630 (Sup. Ct. 1948). There is no implication in the facts asserted that any delays or uncertainties in connection with the proposed development of plaintiff's property were the result of official bad faith or knowing unlawful conduct. There would be no basis, therefore, to entitle plaintiff to damages, by way of just compensation, for condemnation or otherwise. Cf. Beech Forest Hills, Inc. v. Morris Plains, 127 N.J. Super. 574, 582-583 (App. Div. 1974).
Consequently, we concur in the result reached by the trial judge that plaintiff, as of the date of the filing of its complaint, was entitled legally to proceed with the development of its property and that it would be entitled to compensation for its property and by implication for any improvements *241 made thereto "if and when the condemnation and the taking of the property by the State becomes effective." In rejecting plaintiff's demand for inverse condemnation, as well as damages the judge, in effect, determined, correctly in our view, that the circumstances related by plaintiff were not tantamount to an appropriation or taking of its property, or wrongful, actionable conduct by the State justifying compensatory damages.
Plaintiff further contends that it is entitled to be compensated by virtue of a "temporary taking" of its property occasioned by the Commissioner's actions pursuant to N.J.S.A. 27:7-67(a).
As noted, plaintiff applied for a permit to build on its property, a portion of which was situated within the alignment of the map for proposed Route 92 as filed under N.J.S.A. 27:7-66. Pursuant to N.J.S.A. 27:7-67(a), the local authority forwarded the application to the Commissioner of Transportation for his recommendation as to the effect of the proposed development upon the proposed highway. Under that statute, upon such a referral no permit could issue until the lapse of 45 days without a recommendation from the Commissioner. The Commissioner, however, in this case, did respond directly to the plaintiff on March 7, 1973, and on the next day plaintiff received a communication from the municipality to the effect that action on the permit was being withheld because of the position of the Department of Transportation. Thereafter, under the statute, N.J.S.A. 27:7-67(a)(1), the Commissioner had 120 additional days in which to acquire, agree to acquire, or commence an action to condemn said property; during this time no permit could issue, but after the expiration of the 120-day period without state action as specifically required by the statute, plaintiff would have been entitled to have had its application for a building permit processed by the local authority.[1]
*242 The Commissioner did not take any of the specific measures required by N.J.S.A. 27:7-67(a). Therefore, upon the passage of 120 days from the earlier notification in March 1973, plaintiff was entitled to proceed to obtain a building permit from the municipality. Cf. Beech Forest Hills, Inc. v. Morris Plains, supra at 584.[2] It is the period of time the 120 days utilized under the statute by the Commissioner during which the issuance of a building permit was withheld, that plaintiff claims constitutes a temporary taking and for which it is entitled to compensation.
Primary reliance is placed on Lomarch Corp. v. Englewood Mayor and Common Council, 51 N.J. 108 (1968). There the court considered the provisions of the Official Map and Building Permit Act, N.J.S.A. 40:55-1.30 to 1.42, that upon application for approval of a plat the municipality may reserve for future public use the subject property for a period of one year as parks and playgrounds as shown on the official map. The court held that the statutory provision imposed on the municipality an implied duty and obligation to make payment of adequate compensation to the landowner for the *243 temporary taking and deprivation of use and, conditioned upon the implied duty of compensation, the statute was not constitutionally defective for failure to provide expressly for payment. 51 N.J. at 113. In Beech Forest Hills, Inc. v. Morris Plains, supra, on the strength of Lomarch, it was recognized that a similar reservation of property as park land for one year under the Municipal Planning Act, N.J.S.A. 40:55-1.1-1.29, was compensable as a taking of property.
The similarities between the statute here under consideration and those considered in Lomarch and Beech Forest Hills are apparent. In a comparable sense, the actions of the State in this case under N.J.S.A. 27:7-67 constituted a restriction upon the use of plaintiff's property, which can be analogized to an option to purchase since its imposition was to enable the State, during the period of its existence, to determine whether or not to acquire the property for a public purpose.
Nevertheless, here, the period during which plaintiff was unable to secure a building permit was substantially less than the one year period involved in Lomarch and Beech Forest Hills. Moreover, the restriction thus imposed was reasonably designed to reduce the cost of public acquisitions. 2 Nichols, Eminent Domain (3 ed. 1970), § 6.351 at 6-102. The statutory provisions, N.J.S.A. 27:7-66 and 67, when enacted, were included as a constituent part of L. 1968, c. 393. A portion of that act was subsequently repealed and superseded by L. 1972, c. 47; N.J.S.A. 27:7-72 to 88. A purpose of chapter 393 was to provide compensation for persons "displaced for any transportation purpose" and also "to protect the proposed alignment of new highways to minimize the necessity for and the cost of relocation." This public policy is evident in the current legislation. L. 1972, c. 47. § 2; N.J.S.A. 27:7-73. Thus, the legislation is based upon a salutary recognition by the State of its responsibilities for persons displaced by highway improvements. It seeks to minimize such economic injury and grave inconveniences by avoiding these consequences through a restriction against *244 the physical improvement of affected property for a limited period of time in accordance with N.J.S.A. 27:7-66 and 67, or, if this has already occurred, by compensation for the expenses of relocation as otherwise provided specifically in the statute.
The statute not only provides redress for aggrieved property owners, as indicated, but also seeks to avoid the necessity therefor, if possible. As an incident to this purpose, it discourages, for a relatively short period of time the physical development or improvement of land. Similar measures, designed to restrain temporarily the inimical utilization of land, have been recognized under narrow circumstances as reasonable regulations in the exercise of governmental police powers. E.g., Deal Gardens, Inc. v. Loch Arbour Bd. of Trustees, 48 N.J. 492 (1967); Monmouth Lumber Co. v. Ocean Tp., 9 N.J. 64 (1952); Meadowland Regional Devel. Agency v. Hackensack Meadowlands Devel. Comm'n, 119 N.J. Super. 572 (App. Div.), certif. den. 62 N.J. 72 (1972); Rockaway Estates v. Rockaway Tp., 38 N.J. Super. 468 (App. Div. 1955); Campana v. Clark Tp., 82 N.J. Super. 392 (Law Div. 1964).
As noted, unlike the one-year reservation in Lomarch, the restrictions here are for a considerably lesser period of time, and are not a blanket reservation. Under this statute the Commissioner is required to act affirmatively and promptly by making a decision initially within 45 days and then, if need be, taking specific action within 120 days in order to conclude the question of whether the land is to be acquired for transportation purposes. These statutory steps are designed to provide some assurance that the temporary restriction upon the use of the property by the State shall be expeditiously and carefully reviewed and shall not last any longer than reasonably necessary to reach a sound decision on the need for the property for transportation purposes.
Accordingly, the decision below is affirmed.
NOTES
[1] The statute also provides that if the Commissioner initially gives notice that there is no objection to the granting of the permit or approval, the municipal authority may proceed to act upon the application. N.J.S.A. 27:7-67(a) (3). Further, the Commissioner can within the 45-day period recommend the grant of the permit subject to conditions which may be accepted by the owner and municipality within 20 days thereafter; but if the modifications are not accepted no action on the permit can be taken for an additional 20-day period during which the Commissioner may give notice either of his intent to abandon acquisition of the property or to proceed with acquisition and, if the latter, then no permit or approval shall issue for a 120-day period during which there must be an acquisition or agreement to acquire the property, or the institution of a condemnation action, and failing which the parties would be free to proceed. N.J.S.A. 27:7-67(a) (2).
[2] It appears that the State failed to make a recommendation within 45 days of the reference to it on or about January 11, 1973 by the municipal authority. While the Commissioner's recommendation on March 7-8, 1973 was late, no issue is made that plaintiff became legally entitled thereby to proceed on its application or that the Department of Transportation was barred from having a building permit withheld for an additional period of 120 days. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336072/ | 136 S.E.2d 209 (1964)
262 N.C. 45
STATE
v.
William Graham STEPHENS.
No. 650.
Supreme Court of North Carolina.
May 20, 1964.
*210 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Richard T. Sanders for the State.
Bethea & Robinson by Norwood E. Robinson, Reidsville, for defendant appellant.
PARKER, Justice.
The State introduced evidence; defendant did not. Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of the State's case.
The State's evidence, considered in the light most favorable to it, State v. Haddock, 254 N.C. 162, 118 S.E.2d 411, shows the following facts:
About a mile north of the corporate limits of Reidsville, Highway 2552 crosses the tracks of the Southern Railway Company, and about 40 feet in a westerly direction from the railway tracks it intersects Highway 29. This is a grade crossing. At this point the railway tracks run approximately in a north and south direction. A little past 12 a. m. on 3 February 1963, Henry Strader drove his automobile up to this grade crossing and saw the defendant's automobile standing still on the railway tracks headed north with its rear end at the north edge of Highway 2552 as it crosses the railway tracks. Defendant was sitting on the front seat under the steering wheel. No other person was in his automobile. Strader drove his automobile off the railway tracks, got out, and walked back to where defendant was. Defendant was "cranking" his automobile and trying to back off the railway tracks, but his automobile sat there spinning. He saw the defendant get out of his automobile two or three times and then get back in it and try to back it off the railway tracks. Strader saw a train coming and went to his automobile. A train struck defendant's automobile. Defendant was not in his automobile when the train hit it. Strader did not stay, but drove away. Strader got within a few feet of defendant. *211 In his opinion, he was drunk. He based his opinion upon the fact that defendant staggered in getting in and out of his automobile.
G. F. Conrad, a member of the State Highway Patrol, arrived at the scene about 12:30 a.m. and saw the defendant standing with the conductor of the train beside the railway crossing. Defendant's automobile was on the railway track about 1,500 feet north of the grade crossing and under the front end of the railway engine. Defendant's automobile was struck by the engine of the train directly in the rear and was demolished. In Conrad's opinion, defendant was very drunk and unable to walk without aid. Conrad testified on direct examination: "The only statement I could get out of him was that he was driving the car and it was his car and I couldn't find out where he came from or which way he was going or anything. Every time I asked him a question, he would mutter John Price's name. I didn't know who John Price was and about a week later I finally located John Price." Conrad was asked this question: "Well, did he tell you who had driven the car up on the railroad track?" He replied, "He stated that he had." Conrad testified on cross-examination: "He was so drunk it was hard to understand him. I understood what I stated that he said. Even though he was so drunk I couldn't understand what he was saying I understood him enough to where I understood him to say he was driving his car." Conrad testified further on cross-examination: "When I arrived at the scene of the accident there was no one helping him [defendant], he was standing still there in the presence of Mr. C. M. Ferrill and some other trainmen. No one was holding on to him to keep him standing up. It was only when I walked him to the car that it was necessary for me to hold on to him."
Conrad turned the defendant over to Deputy Sheriff Duke Setliff to carry him to the police station in Reidsville. Setliff testified on cross-examination: "The defendant rode with me from approximately one mile north of Reidsville to the city jail and at no time did I have any conversation with him. He walked by himself from my car into the police station. In order to get from my car into the police station, it was necessary for the defendant to walk up a short flight of steps. When he came into the police station he was what we call `booked in.' At that time he had a rather large sum of money and cash on his person. * * * The desk sergeant counted the money himself. He counted it after the defendant counted it." Setliff smelled a strong odor of alcohol on the defendant's breath, and in his opinion the defendant was drunk.
The factual situation in State v. Isom, 243 N.C. 164, 90 S.E.2d 237, 69 A.L.R. 2d 358, is quite similar to the factual situation in the instant case, but the State's evidence in the Isom case is not as strong as the State's evidence in this case. Isom was tried upon an indictment charging him with the operation of a motor vehicle on the public highway while under the influence of intoxicating liquor. In the Isom case the State's evidence, as stated in the Court's opinion, tended to show:
"An automobile wreck occurred on East Salisbury Street, Asheboro, on 14 August, 1954, at about 12:30 A.M. When the officers arrived at the scene, defendant was not there.
"The officers found defendant about two blocks from the scene of the wreck. He was leaning against his 1950 Plymouth car. The car was sitting on the edge of a dirt road, the back wheels some three feet from the paved highway. The front of the Plymouth was knocked in against the wheels and the wheels would not turn. Three or four `other fellows' were with defendant. All had been drinking.
"Two officers testified that defendant stated that he had been driving the car.
"One officer testified: `The defendant was very drunk.' `He lay down a *212 while.' `He was not passed out but he was in a pretty drunken condition, obviously he was very clogged up.' `I don't know whether he knew what I was referring to.'
"Another officer testified: `He (defendant) was very much intoxicated. He would have to hold to something in order to move.' `I do not know whether he knew what he was talking about or not.'
"Another officer, who saw defendant some twenty minutes later, testified: `He was intoxicated, and talking slow and incoherently. I think he had judgment enough to know what he was talking about.' `I do not know whether he realized what place he was talking about.'
"Apart from the statement attributed to defendant, there was no testimony that the defendant was driving the car at the scene of the wreck or elsewhere.
"The court overruled defendant's motion for nonsuit and submitted the case to the jury on the State's evidence. Defendant offered no evidence."
The jury returned a verdict of guilty. Judgment was pronounced thereon and the defendant appealed to the Supreme Court. Bobbitt, J., writing the opinion for a unanimous Court, with the exception of Higgins, J., who took no part in the consideration or decision of this case, stated:
"The evidence, considered in the light most favorable to the State, was sufficient to survive defendant's motion for nonsuit. Hence, assignment of error directed to the court's ruling in this respect cannot be sustained.
* * * * * *
"Ordinarily, intoxication of an accused person does not render inadmissible his confession of facts tending to incriminate him. But the extent of his intoxication when the confession was made is relevant; and the weight, if any, to be given a confession under the circumstances disclosed is exclusively for determination by the jury. 20 Am.Jur., Evidence, sec. 525; 22 C.J.S. Criminal Law § 828; Annotation: 74 A.L.R. 1102 et seq., and supplemental decisions. See, State v. Bryan, 74 N.C. 351."
In an annotation to the Isom case in 69 A.L.R.2d § 3, p. 364, it is stated: "The courts are agreed that proof that one who has confessed to crime was intoxicated at the time of making a confession goes to the weight and credibility to be accorded to the confession, but does not require (at least where the intoxication does not amount to mania, and the intoxicants were not furnished the accused by the police or other government officials) that the confession be excluded from evidence." The annotation cites cases from twenty-one states (including our case of State v. Isom), the District of Columbia, England, and Canada, which are authority, either express or clearly implied, for the rule stated.
The State's evidence that defendant was sitting on the front seat under the steering wheel of his automobile, which was standing still on the railway tracks with its rear end at the north edge of Highway 2552 as it crosses the railway tracks at a grade crossing, and was "cranking" his automobile and trying to back off the railway tracks, and that he got out two or three times and got back in it and tried to back it off the railway tracks; that he was not in his automobile when the train hit it; and that he counted a large sum of money he had on his person at the police station in Reidsville would permit a jury to find that defendant's intoxication did not amount to "mania" or a condition in which he was unconscious of the meaning of his words when he told State Highway Patrolman Conrad about 12:30 a. m. at the scene that it was his car and he was driving it, but that defendant was capable of knowing the meaning and effect of his words when *213 he told Conrad that it was his car and that he was driving it.
A person, when drunk, is, of necessity, under the influence of intoxicating liquor within the intent and meaning of G.S. § 20-138. State v. Painter, 261 N.C. 332, 134 S.E.2d 638, State v. Carroll, 226 N.C. 237, 37 S.E.2d 688.
The State's evidence was sufficient to carry the case to the jury. Defendant's assignment of error to the denial of his motion for judgment of compulsory nonsuit is overruled.
When the solicitor for the State was making his argument to the jury, defendant's counsel objected to it and asked that the jury be instructed not to consider it, and further asked for a new trial. Whereupon, the trial judge instructed the jury as follows:
"During the progress of the argument by the Solicitor, the defendant, through counsel, objects to the argument of the Solicitor and asks that the jury be instructed not to consider it and further asks for a new trial. Now, Gentlemen of the Jury, the law presumes every defendant charged to be innocent until he is proved guilty beyond a reasonable doubt. The law does not require him to give testimony against himself or to go on the stand and testify. The fact that he does not testify in his own behalf is not a circumstance to be considered against him. Any reference to what the defendant personally may know must not be considered by you as an inference that he should have testified, so do not consider any circumstance or any statement or any argument on the part of the Solicitor as an obligation on his part or the part of the defendant to testify because he is not prejudiced and should not be prejudiced in his case by his failure to go on the stand. Now, if any argument like that will affect your verdict, then, of course, that would be improper.
"The Court will instruct you upon the law which is applicable to this case, if you Gentlemen can follow it and will follow it, then you may continue to sit; otherwise, I'll let the case be tried again. Now, is there any juror who cannot follow the instruction of the Court, that is, upon the law as is applicable to this case? He is not required to testify. The Solicitor did not say that he was required to testify or that he should have gone upon the stand. The Solicitor didn't say that, but from his argument, if you should draw any inference that that was what he intended, then that would be improper. Go ahead."
After the judge gave this instruction to the jury, the jury was sent to its room, and a long colloquy took place between the judge, the solicitor, and defendant's counsel. The substance of what the solicitor said to the judge of what his argument was is this: That if any witnesses could help defendant, he had nothing to prevent him from getting the witnesses to help him in his case. Counsel for the defendant told the judge in substance that he had no objection to that argument, but what he was objecting to was that the solicitor in his argument was clearly inferring to the jury that the defendant was the only man who could go on the witness stand and tell the jury anything. The judge said in substance that it was his impression from what the solicitor was saying that if there were any witnesses that could help the defendant he knew where they were; that he did not get the impression that the solicitor was suggesting that defendant go on the stand and tell who they were.
The court overruled defendant's motion to withdraw a juror and declare a mistrial because of the solicitor's argument to the jury, and defendant excepted and assigns this as error.
*214 After the argument of the solicitor and the counsel for defendant, the judge began his charge as follows:
"At the outset, the Court instructs you that the defendant is presumed to be innocent and may not be convicted until he is proved guilty beyond a reasonable doubt and the defendant is not required to give evidence against himself. The fact that he did not testify in his own behalf is not a circumstance to be considered against him.
It may not be contended that he should testify in his own behalf because of anything peculiar within his knowledge or otherwise. If any such inference may arise from any argument made by the Solicitor, then you will disregard it and you will not permit your verdict to be influenced by that. If you can do that, we will proceed with the case. If you cannot, then say so at this time. (No reply from the jury.)"
Later on in the charge the judge instructed the jury again: "The defendant did not testify in his own behalf and, as I have heretofore instructed you, that is not a circumstance against him."
Defendant's counsel objected to the solicitor's argument to the jury when it was being made. His argument was interrupted, and the trial judge carefully instructed the jury that defendant's failure to testify in his own behalf should not be construed in any way to his prejudice, that the solicitor had made no such argument, but that if the jury should draw any inference that the solicitor intended that, it was improper argument and the jury should not consider it. Later, after the argument of counsel and at the very beginning of the charge, the judge instructed the jury again to that effect. We feel that under the circumstances as disclosed by the record, the trial judge properly and effectively removed any prejudicial effect that might have resulted from the solicitor's argument to the jury, and that he correctly denied defendant's motion to withdraw a juror and order a new trial. G.S. § 8-54; State v. Lewis, 256 N.C. 430, 124 S.E.2d 115; State v. Brackett, 218 N.C. 369, 11 S.E.2d 146; State v. Fogleman, 204 N.C. 401, 168 S.E. 536; State v. McIver, 175 N.C. 761, 94 S.E. 682.
All defendant's assignments of error are overruled. In the trial we find
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336086/ | 136 S.E.2d 67 (1964)
261 N.C. 754
Clifford J. LOCKWOOD
v.
Earl McCASKILL, and Charles Albert Macon d/b/a C. A. M. Machine Company.
No. 234.
Supreme Court of North Carolina.
May 6, 1964.
*68 H. Parks Helms, Charlotte, for plaintiff appellant.
Kennedy, Covington, Lobdell & Hickman and Charles V. Tompkins, Jr., Charlotte, for defendant appellee Macon.
BOBBITT, Justice.
Referring to the deposition statute, G.S. § 8-71, this Court in Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297, in opinion by Higgins, J., said: "This statute does not contemplate the taking of deposition of a person disqualified to give evidence in the case."
As in Yow, the deposition statute must be considered in connection with G.S. § 8-53, which provides: "Communications between physician and patient.No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is *69 necessary to a proper administration of justice."
In Yow, a similar motion was heard by Judge Rudisill, the Resident Judge, in Chambers. His denial of the motion as a matter of law was affirmed by this Court. The ground of decision was stated as follows: "While Judge Rudisill was a Judge of the Superior Court, he was not at the time the presiding judge of a superior court in term. He had no authority to enter the requested order in Chambers."
While Judge McConnell was the Presiding Judge at the October 21, 1963, Regular Schedule "C" Session of Mecklenburg Superior Court, this case was not before him for trial. It was brought before him on October 24, 1963, solely for hearing on said motion of October 17, 1963.
Questions relating to the privilege created by G.S. § 8-53 have been discussed and decided often by this Court. Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137, and cases cited; Sims v. Charlotte Liberty Mutual Insurance Co., 257 N.C. 32, 125 S.E.2d 326, and cases cited. In all of our decisions except Yow v. Pittman, supra, the questions presented related to rulings made during the progress of the trial by the presiding superior court judge.
"It is the accepted construction of this statute (G.S. § 8-53) that it extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe." Smith v. John L. Roper Lumber Co., 147 N.C. 62, 64, 60 S.E. 717, 718; Sims v. Charlotte Liberty Mutual Insurance Co., supra, 257 N.C. p. 37, 125 S.E.2d 326, and cases cited.
Undoubtedly, Judge McConnell's order purports to compel Dr. Wright to testify concerning matters which otherwise would be privileged. Whether Dr. Wright's deposition is offered in evidence is immaterial. If and when Dr. Wright is required to testify concerning privileged matters at a deposition hearing, eo instante the statutory privilege is destroyed. This fact precludes dismissal of the appeal as fragmentary and premature. Cf. Waldron Buick Co. v. General Motors Corp., 251 N.C. 201, 110 S.E.2d 870.
In the construction of G.S. § 8-53, our chief concern is to ascertain the legislative intent. As stated by Stacy, C. J., in Branch Banking & Trust Co. v. Hood, Comr. of Banks, 206 N.C. 268, 270, 173 S.E. 601, 602: "The heart of a statute is the intention of the lawmaking body." In performing our judicial task, "we must avoid a construction which will operate to defeat or impair the object of the statute, if we can reasonably do so without violence to the legislative language." Ballard v. City of Charlotte, 235 N.C. 484, 487, 70 S.E.2d 575, 577.
Appellee contends the statute, G.S. § 8-53, is in derogation of the common law and should be strictly construed. However, we are not considering what matters are privileged or questions relating to waiver of the statutory privilege. Rather, our question is what superior court judge, upon appropriate findings of fact, may compel disclosure.
The following statement is pertinent: "A proviso should be construed together with the enacting clause or body of the act, with a view to giving effect to each and to carrying out the intention of the legislature as manifested in the entire act and acts in pari materia. A strict but reasonable construction is to be given to the proviso so as to take out of the enacting clause only those cases which are fairly within the terms of the proviso." 82 C.J.S. Statutes § 381b (1). Here, construction of the proviso is necessary to decision.
The sole purpose of the 1885 statute (Public Laws of 1885, Chapter 159), now codified as G.S. § 8-53, was to create *70 a privileged relationship between physician and patient. In view of this primary purpose, we think it clear the proviso was intended to refer to exceptional rather than ordinary factual situations.
Under a literal interpretation, the words of the proviso, "the presiding judge of a superior court," might include the superior court judge currently presiding in the judicial district. As indicated above, we have held they refer solely to a superior court judge presiding "in term." Too, the words, "the presiding judge of a superior court," might include any superior court judge who happens to be presiding over any term in any county in North Carolina. We think it obvious they refer solely to a judge presiding at a term of superior court in the county in which the action is pending. In short, the words, "the presiding judge of a superior court," must be construed to effectuate rather than to defeat the dominant purpose of the statute.
In our view, it was the intention of the General Assembly that the presiding judge authorized to compel disclosure by a physician on the ground such disclosure is necessary to the proper administration of justice is the judge presiding on the occasion when the physician is called upon to testify, namely, the trial judge. All relevant circumstances, including the nature and character of evidence offered by or in behalf of the injured person, are available for consideration by the trial judge. Moreover, the trial judge may ascertain from the physician the nature of the evidence involved and may determine what part, if any, should be disclosed as necessary to the proper administration of justice. Obviously, the proper administration of justice might require disclosure as to certain but not as to all matters under the privilege. In short, we think it was intended that disclosure should be compelled only when the examination of the physician was conducted under the supervision of the trial judge.
G.S. § 8-71 provides that a party may take "the depositions of persons whose evidence he may desire to use." (Our italics) Appellee's contention, as stated in his brief, is that disclosure "is necessary to enable the defendant to accurately evaluate the case against him and to prepare his defense."
In our view, the proviso in G.S. § 8-53 does not authorize a superior court judge, based on the circumstance that he is then presiding in the county in which the action is pending, to strike down the statutory privilege in respect of any and all matters concerning which the physician might be asked at a deposition hearing. Doubtless, in practically all personal injury actions the defendant would deem it advisable, if permitted to do so, to examine before a commissioner or notary public in advance of trial the physician(s) of the injured party to "evaluate the case" and "to prepare his defense." Obviously, if this course were permitted, the privilege created by the statute would be substantially nullified. This practice, if considered desirable, should be accomplished by amendment or repeal of the statute.
Although the question before us was not decided or drawn into focus, expressions in opinions of this Court would seem to indicate an understanding that the words, "the presiding judge of a superior court," refer to the superior court judge who presides at the trial. Creech v. Sovereign Camp of Woodmen of the World, 211 N.C. 658, 661, 191 S.E. 840, 842; Sims v. Charlotte Liberty Mutual Insurance Co., supra, 257 N.C. pp. 38-39, 125 S.E.2d 326.
With reference to examinations prior to trial by court-appointed physicians to ascertain the nature and extent of alleged injuries, see Helton v. Stevens Co., 254 N.C. 321, 118 S.E.2d 791.
In view of the foregoing, we need not consider whether the motion itself and the record proper constitute a sufficient basis *71 for a finding "that said deposition is necessary to a proper administration of justice."
For the reasons stated, the order of the court below is reversed.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336099/ | 109 Ga. App. 559 (1964)
136 S.E.2d 493
RICHARDSON
v.
POTTER et al.
40600.
Court of Appeals of Georgia.
Decided April 8, 1964.
A. S. Dodd, Jr., for plaintiff in error.
Hitch, Miller, Beckmann & Simpson, Luhr G. C. Beckmann, Reginald C. Haupt, Jr., Allen & Edenfield, Francis W. Allen, Adams, Adams & Brennan, Edward T. Brennan, contra.
PANNELL, Judge.
Plaintiff, a guest passenger of the defendant Adkins, brought an action to recover for damages received in a collision between a car driven by Adkins and a car belonging to Sisson and driven by Potter, the petition alleging in part as follows: Plaintiff does further show that as said vehicles approached each other from opposite directions, defendant Walter Brooks Adkins, with utter disregard for the safety of himself, his passengers and others, did drive his vehicle to the left, crossing said center line and the northerly bound traffic *560 lane of said highway, and onto the paved parking area of said Sand Hill Motel which was on the easterly side of said highway.
Plaintiff does further show that when defendant Adkins did so drive his vehicle to the left, defendant Delzon Burdette Sisson's agent, defendant Dennis E. Potter, driving his vehicle at a speed of 55 miles per hour did apply his brakes and skidded 40 feet and losing control of said vehicle did allow said vehicle to swerve and skid to the right where the front end of defendant Delzon Burdette Sisson's vehicle did strike with great force and violence the right front door area of defendant Walter Brooks Adkins' vehicle. The point of impact was just east of the edge of the paved portion of said highway with the right side of defendant Adkins' car at the east edge of said paved highway. Plaintiff's injuries and damages were caused by the following negligent acts of the defendants: (a) Defendant Adkins, in cutting across the northbound traffic lane when the other vehicle was approaching within approximately 250 and 300 feet, such act being in violation of Ga. L. 1953, Nov. Sess., pp. 556, 582; (b) Defendant Adkins in failing to drive his vehicle with ordinary care for the safety of others on the highway; (c) Defendant Adkins in failing to wait until the vehicle driven by defendant Potter had passed before crossing the north bound traffic lane, such constituting lack of ordinary care; (d) Defendant Potter in driving his vehicle after dark at a speed of 55 miles per hour, such act being in violation of Ga. L. 1953, Nov. Sess., pp. 556, 577, and negligence per se; (e) Defendant Potter in failing to drive his vehicle with due care for the safety of others using the highway; (f) Defendant Potter in failing to have his vehicle under proper control; (g) Defendant Potter in failing to drive his vehicle to the left after he ascertained the presence of Adkins' vehicle across the north bound traffic lane and thus avoid the collision; (h) Defendant Sisson in all acts of defendant Potter, defendant Potter being agent of defendant Sisson; (i) Defendant Sisson in allowing defendant Potter, a youth of 16 years of age, to operate his vehicle upon a heavily traveled main highway at a rapid and excessive rate of speed with said speed being 55 miles per hour at 12:15 a. m., all of which things were known to the defendant Sisson.
The defendant Adkins was stricken as a party on oral motion *561 on the grounds that the petition alleged no gross negligence as against him. There is no exception to this ruling. The plaintiff's evidence failed to show that the automobile being driven by Potter was being driven in excess of 50 miles per hour; failed to show that he did not have his vehicle under control; failed to show that Potter was driving his vehicle without due care for the safety of others using the highway; failed to show that Potter had an opportunity to drive to the left and avoid the collision after he ascertained or could have ascertained the presence of Adkins' car in Potter's lane of traffic; failed to show that at the time and place of collision the highway was a heavily traveled main highway.
When plaintiff rested, the defendant made a motion for nonsuit and prior to the decision of the trial judge on the motion plaintiff made a motion to reopen the case so as to permit her to introduce the testimony on cross examination of the defendant Adkins. The trial judge sustained the motion for nonsuit and refused to permit the plaintiff to reopen the case. The case is before this court for review of these rulings of the trial judge. A motion to dismiss the bill of exceptions in this court was made by the defendant in error.
1. The motion to dismiss the bill of exceptions on the grounds that the brief of evidence was not approved at the time the bill of exceptions was presented to the trial court is overruled. The decision of the Supreme Court in Blalock v. Blalock, 214 Ga. 586 (2) (105 SE2d 721), construing its own decision in Days v. Atlanta &c. R. Co., 101 Ga. 785 (29 S.E. 21), is controlling upon this court. Therefore, a brief of the evidence approved prior to or at the time the bill of exceptions is certified and approved as true is approved in time and properly includable in the record sent to this court.
2. While on a motion for nonsuit the evidence and all legitimate inferences therefrom should be constructed in favor of the plaintiff, Caldwell v. Knight, 92 Ga. App. 747 (2) (89 SE2d 900), and although there may be no conflict in the evidence, matters should be left to the jury where reasonable men might differ as to the inferences to be drawn from certain evidence, Elrod v. McConnell, 170 Ga. 892 (1) (154 S.E. 449); yet, where as in the instant case, including in all reasonable inferences from the evidence adduced, no facts appear from which it could be inferred that the defendants were negligent, a nonsuit was proper.
*562 3. The plaintiff also assigns error on the refusal of the trial judge to permit her to reopen the case and introduce the cross examination of Walter B. Adkins contained in a deposition taken in behalf of the defendants in error pending the action. Code Ann. § 38-2101 (d) provides in part as follows: "(3) The deposition of a witness, whether or not a party, taken upon written interrogatories, may be used by any party for any purpose if the court finds: 1, that the witness is dead; or 2, that the witness is out of the county unless it appears that the absence of the witness was procured by the party offering the deposition; or 3, that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or 4, that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 5, that because of the nature of the business or occupation of the witness it is not possible to secure his personal attendance without manifest inconvenience to the public or to third persons; or 6, that the witness will be a member of the General Assembly and that the session of the General Assembly will conflict with the session of the court in which such case is to be tried. (4) The deposition of a witness, whether or not a party, taken upon oral examination, may be used in the discretion of the trial judge, even though the witness is available to testify in person at the trial. The use of the deposition shall not be ground for excluding the witness from testifying orally in open court." Assuming, without deciding, that the refusal of the trial judge to reopen the present case after motion for nonsuit made, may have been error if the evidence offered was admissible, McColgan v. McKay, 25 Ga. 631, Parker v. Fulton Loan &c. Assn., 42 Ga. 451, Penn v. Georgia, Sou. &c. R. Co., 129 Ga. 856 (60 S.E. 172), Rice v. Ware & Harper, 3 Ga. App. 573 (1b) (60 S.E. 301), Ellenberg v. Southern R. Co., 5 Ga. App. 389 (2) (63 S.E. 240), Cone v. American Surety Co., 29 Ga. App. 676 (6) (116 S.E. 648), the failure to reopen the case to admit inadmissible evidence under such circumstances could not be termed erroneous; and, it not appearing from the record that the requirements of subparagraph (3) above were met so as to make the evidence admissible in the form presented, or that facts exist indicating the trial judge abused the discretion given him in subparagraph (4), the action of the trial judge must be affirmed. As was said in Stubbs v. Central Bank of Ga., 7 Ga. 258 (4), 262, "We can indulge in no *563 presumption against the regularity of the proceedings below. The party who challenges the legality of the proceedings of inferior tribunals, must prove the error by the record."
Judgment affirmed. Felton, C. J., and Frankum, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336103/ | 109 Ga. App. 459 (1964)
136 S.E.2d 499
NATIONAL-BEN FRANKLIN INSURANCE COMPANY OF PITTSBURGH, PA.
v.
PRATHER, Administrator.
40512.
Court of Appeals of Georgia.
Decided March 4, 1964.
Rehearing Denied March 31, 1964.
*460 Fulcher, Fulcher, Hagler & Harper, Gould B. Hagler, for plaintiff in error.
Randall Evans, Jr., contra.
RUSSELL, Judge.
1. The only previous discussion in this State of the exclusionary clause "furnished for the regular use of" in automobile liability policies is to be found in State Farm *461 Mut. Auto. Ins. Co. v. Bates, 107 Ga. App. 449 (130 SE2d 514) where Pacific Auto Ins. Co. v. Lewis, 56 Cal. App. 2d 597 (132 P2d 846) is cited as authority for the proposition that the word "furnished for" must be read in connection with "regular use" and that both are operative parts of the exclusion. As there stated: "Assuming that the use of such a car may be regular without being exclusive, there are other elements which may be considered in determining the meaning intended . . . [An automobile] furnished for all purposes and at all times and places would clearly be for his regular use. One furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes." This is emphasized in the special concurrence in Bates where it is stated (P. 453): "The provision should be interpreted to mean that to exclude coverage there must have been the furnishing for regular use and also regular use." In at least one case the court has gone so far as to hold that a stolen car, not being furnished, is covered under this provision. Sperling v. Great Amer. Indem. Co., 199 NYS2d 465 (7 NY2d 442, 166 NE2d 482).
The plaintiff testified positively that the automobile was not furnished for his use. Under the facts, the truth of this statement was for the jury. It is uncontested that the car was county property and that the commission had no authority in the absence of a resolution to furnish the vehicle for the use of the chairman, and that there was no such resolution. It is true that the county might in fact have so furnished it in an irregular manner, but this is a fact question for the jury and not the court to decide. The jury might have reached the conclusion that it was not furnished to the plaintiff but was merely county property available to county authorities generally, or they might have determined that it was regularly furnished to the county commissioners for official use, but not to the plaintiff for private use. Whether the defendant carried the burden of showing that the facts fell within the exclusion was a jury question. The motion for judgment notwithstanding the verdict was properly overruled.
*462 2. The only ground of the motion for a new trial which was insisted upon is that contending that the finding for the plaintiff of $2,500 as attorney fees was not authorized in that there was no showing that the defendant had acted in bad faith by a frivolous or unfounded refusal to pay. This issue was extremely close on its facts, since the evidence showed without dispute that the plaintiff had had far more actual use of the vehicle than any other person or group of people, and whether or not the board of county commissioners had in fact furnished it for his regular use was left as a conclusion or inference which the jury must necessarily have to reach from all the facts; indeed, the plaintiff in error is doubtless correct in its contention that more evidence points to the conclusion it was furnished for regular use than against it. The preponderance of evidence is for the jury, however, and not for this court to decide. As in the main issue of coverage or noncoverage, so in the issue of whether the defendant's refusal to pay was frivolous and unfounded, if there is some evidence to support the verdict it will not be disturbed. However, where it appears from the evidence that the defendant's refusal to pay was justified on the basis of the facts appearing to the defendant at the time of the refusal, bad faith is not shown. Georgia Life &c. Ins. Co. v. Gammage, 91 Ga. App. 125 (1) (85 SE2d 85). None of the evidence here supports the position that the defendant in bad faith contended the vehicle in question was not furnished for the regular use of the plaintiff. The award of attorney fees was therefore not authorized.
The overruling of the motion for a new trial is affirmed with direction that the sum of $2,500 awarded by the jury as attorney fees be stricken. Byrd v. Equitable Life Assur. Soc., 185 Ga. 628 (6) (196 S.E. 63). Since this amounts to a substantial modification of the judgment, the motion of the plaintiff in error to tax costs in the appellate court against the plaintiff is granted. Anderson v. Beasley, 169 Ga. 720 (151 S.E. 360).
Judgment affirmed with direction. Nichols, P. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336089/ | 136 S.E.2d 40 (1964)
261 N.C. 674
Thurman SHORT
v.
Joyce Iva CHAPMAN, a Minor, by her Guardian ad Litem, Velma W. Rhoney.
No. 174.
Supreme Court of North Carolina.
April 29, 1964.
*42 Carpenter, Webb & Golding, by John G. Golding, Charlotte, for plaintiff appellant.
Hollowell & Stott, by Grady B. Stott, and Mullen, Holland & Cooke, by Frank P. Cooke, Gastonia, for defendant appellee.
PARKER, Justice.
Both plaintiff and defendant offered evidence. Plaintiff assigns as error the denial of his motion for judgment of compulsory nonsuit of defendant's counterclaim made at the close of all the evidence. Plaintiff contends that defendant's own evidence shows as a matter of law that she was guilty of legal contributory negligence, in that she was driving an automobile with its headlights on low beam, and she failed to keep a proper lookout without regard to the sufficiency of her headlights.
Defendant's counterclaim or cross-action is substantially the allegation of a cause of action on the part of defendant against plaintiff arising out of the automobile collision that is the basis of plaintiff's action. Perkins v. Perkins, 249 N.C. 152, 105 S.E.2d 663; Strong's N.C. Index, Vol. 3, Pleadings, § 8.
In respect to defendant's counterclaim or cross-action, the plaintiff may successfully avail himself of his plea of contributory negligence of defendant by a motion for a compulsory judgment of nonsuit if, and only if, the facts necessary to show contributory negligence of defendant are established so clearly by her own evidence that no other conclusion can be reasonably drawn therefrom. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Hayes v. Western Union Telegraph Co., 211 N.C. 192, 189 S.E. 499.
Plaintiff's contention that defendant was guilty of contributory negligence as a matter of law, thereby barring any recovery by her on her counterclaim or crossaction, necessitates an appraisal of her evidence in the light most favorable to her. Beasley v. Williams, 260 N.C. 561, 133 S.E.2d 227; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.
*43 The allegations of fact in the complaint, which are admitted to be true in the answer, show these facts: On 26 May 1960 the Gaston County Moose Lodge was situate on the south side of Wilkinson Boulevard about two miles east of the city of Gastonia. Wilkinson Boulevard is a four-lane highway, 44 feet wide with wide shoulders on each side, and runs in a general east and west direction. It is divided into four lanes for traffictwo lanes for eastern traffic and two lanes for western traffic. These lanes are divided by painted stripes on the highway. About 10 p. m. on 26 May 1960 plaintiff drove his 1960 Dodge automobile from the parking lot of Gaston County Moose Lodge across Wilkinson Boulevard and into the northernmost lane of traffic adjacent to the shoulder of the highway and proceeded to drive his automobile in a western direction toward Gastonia. The minor defendant was driving a Renault automobile in a western direction on Wilkinson Boulevard at the same time. The parties stipulated that the posted maximum speed limit on the Boulevard in the area of the collision is 55 miles an hour.
Defendant's evidence, considered in the light most favorable to her, shows these facts: She was driving the Renault automobile in the northernmost lane of Wilkinson Boulevard next to the shoulder at a speed of 45 miles an hour. She was alone in the automobile. It was drizzling rain, there was fog, and it was hard to see. The road was slick. The headlights on her automobile were burning on "low beam" and her windshield wiper was working. Her car lights were illuminating the highway for two car lengths ahead of her. As to whether they were illuminating it further she does not know. She was meeting no approaching traffic. She was watching the road ahead of her. When she approached the area adjacent to the Gaston County Moose Lodge, an automobile without any lights shining and traveling not over ten miles an hour "pulled out" on the Boulevard not over two car lengths, or about 25 feet ahead of her. When she first saw this automobile, it had reached the center line dividing eastbound and westbound traffic and had not straightened up in the nothernmost lane. Immediately upon seeing this automobile, she "slammed on" her brakes and "cut her wheel" to the left in an endeavor to get around it. Her automobile started "to spin," turned completely around on the road, slid about 15 or 20 feet with the rear part going in a westerly direction, and the rear end of her automobile hit the bank. All the damage to her automobile was to its rear end; there was no damage to its front. If her automobile touched the automobile in front of her, it was very light. When her automobile hit the bank, she was thrown out of it and knocked unconscious. There was nothing to obscure her vision of the parking lot of the Gaston County Moose Lodge. The area of the parking lot and of the Gaston County Moose Lodge was "lighted some."
Plaintiff's evidence shows these facts: When he and his wife came out of the Moose Lodge, it was drizzling rain. They went to his automobile, which was parked in the parking lot facing the highway. He turned on his lights and rolled the glass of the window down on his side; his wife rolled down the glass of the window on her side. He looked west toward Gastonia, and the road was clear. He then looked east toward Charlotte and saw an automobile "approximately almost two blocks away" to his right that had just come over the crest of a hill and started down it. This automobile was traveling 60 miles an hour or better. He then drove almost straight into the Boulevard, proceeded to its northernmost lane of traffic, and had traveled in this lane at a speed of about 40 miles an hour about 200 yards when he heard tires squealing. His wife looked back and "yelled." He turned and looked back and saw a Renault automobile coming toward him in a spin sideways. He stepped on the gas, and the Renault hit the left rear end of his automobile and went straight into the bank near the highway. When his automobile was hit, it swerved to the right *44 throwing him against his wife and then back, hitting his hip on the armrest. He stopped a short distance down the road and came back to where his automobile was struck. When he got back, defendant was lying down crying with her head in some man's lap; she was not unconscious. The taillight assembly on the model Dodge plaintiff was driving lights up real bright.
In respect to defendant's counterclaim or cross-action, considering defendant's evidence in the light most favorable to her, there is plenary evidence tending to show that plaintiff was guilty of negligence in operating his automobile, and that such negligence was a proximate cause of defendant's injuries. Plaintiff's contention that defendant's counterclaim or cross-action should be nonsuited on the ground that defendant was guilty of contributory negligence as a matter of law presupposes negligence on his part. Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163.
Plaintiff makes this contention in respect to defendant's testimony that she was operating her automobile on low beam: "The only occasion when it is permissible to dim one's lights is when one meets another vehicle on a highway. G.S. § 20-131(b). Even then it is required that the dimmed headlights render clearly discernible a person 75 feet ahead. When there is no oncoming traffic, one's headlights must render clearly discernible a person 200 feet ahead. G.S. § 20-131(a). Where a person operates an automobile on the highway at night with headlights on low beam when nothing exists to require this, he is negligent as a matter of law. Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884."
It would seem that plaintiff's reference to G.S. § 20-131(b) is erroneous, and that he means to cite G.S. § 20-131(d). G.S. § 20-131(d) reads in part: "Whenever a motor vehicle meets another vehicle on any highway it shall be permissible to tilt the beams of the head lamps downward * * * subject to the requirement that the tilted head lamps * * * shall give sufficient illumination under normal atmospheric conditions and on a level road to render clearly discernible a person seventy-five feet ahead * * *." (Italics ours.) G.S. § 20-131(a) provides: "The head lamps of motor vehicles shall be so constructed, arranged, and adjusted that, except as provided in subsection (c) of this section [a subsection in reference to a motor vehicle being operated upon a highway or portion thereof, which is sufficiently lighted to reveal a person on the highway at a distance of 200 feet ahead of the vehicle], they will at all times mentioned in § 20-129, and under normal atmospheric conditions and on a level road, produce a driving light sufficient to render clearly discernible a person two hundred feet ahead, but any person operating a motor vehicle upon the highways, when meeting another vehicle, shall so control the lights of the vehicle operated by him by shifting, depressing, deflecting, tilting or dimming the headlight beams * * *." (Italics ours.)
Defendant's evidence shows that it was drizzling rain and there was fog. Certainly, this was not operating a motor vehicle "under normal atmospheric conditions." It would seem that driving an automobile at night with its head lamps on bright might prove to be deficient in drizzling rain and fog, and that driving under such conditions with the head lamps on dim might be more effective to see ahead. However that may bethere is no evidence in the record on this pointthe General Assembly in defining a motorist's duties as to the lighting equipment of his head lamps refers, in G.S. § 20-131, to visibility "under normal atmospheric conditions." See Cheatham v. Chabal, 301 Ky. 616, 192 S.W.2d 812, for a like construction of quite similar Kentucky statutes. Certainly, no provision of G.S. § 20-131 states that it is permissible to dim one's head lamps only when one meets another motor vehicle on a highway, and we know of no statute or decision of this State that states or holds that it is permissible for a motorist to dim his headlights only *45 when he meets another vehicle on the highway.
Plaintiff states in his brief: "Where a person operates an automobile on the highway at night with headlights on low beam when nothing exists to require this, he is negligent as a matter of law. Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884." This case does not support the sentence for which it is cited as authority, and we know of no case in our Reports or any statute of this State that supports such a statement as made by plaintiff in his brief. The Pike case holds that under the statute in force in 1941 plaintiff Pierce who outran his headlights was guilty of contributory negligence as a matter of law.
G.S. § 20-141 prescribes speeds at which motor vehicles may be lawfully operated on the highways of the State. The 1953 General Assembly amended this statute by a provision which reads: "(e) The foregoing provisions of this section shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as the proximate cause of an accident: Provided, that the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits prescribed by G.S. 20-141(b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator."
Defendant, according to her testimony, was operating her automobile at a speed of 45 miles in a 55-mile speed zone. Therefore, under the provisions of G.S. § 20-141(e) in force on 26 May 1960, she cannot be held guilty of contributory negligence per se merely because she was operating her automobile on "low beam" and was unable to stop her automobile within the radius of her lights or the range of her vision. Burchette v. Davis Distributing Co., 243 N.C. 120, 90 S.E.2d 232; Beasley v. Williams, supra.
It is a fundamental principle that the only contributory negligence of legal importance is contributory negligence which proximately causes or contributes to the injury under judicial investigation. Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854; Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904; Elder v. Plaza Ry., 194 N.C. 617, 140 S.E. 298; Moore v. Chicago Bridge & Iron Works, 183 N.C. 438, 111 S.E. 776; 65 C.J.S. Negligence § 129.
What is the proximate or a proximate cause of an injury is ordinarily a question for a jury. It is to be determined as a fact from the attendant circumstances. Conflicting inferences of causation arising from the evidence carry the case to the jury. Pruett v. Inman, supra.
Cookson v. Humphrey, 355 Mich. 296, 93 N.W.2d 903, is a case with a factual situation in many ways similar to the instant case. In the Cookson case the Court said: "That plaintiff was guilty of negligence as a matter of law cannot be doubted. Was his negligence a proximate cause of the accident?" The Court held that it was improper to nonsuit plaintiff where the evidence raised an issue as to whether the deficiency of his lights or his excessive speed contributed to causing the collision with defendant's truck, which had negligently entered a four-lane intersection across the path of plaintiff, who was traveling on a favored street, since it could have been found that under the circumstances plaintiff would not have been able to avoid the collision even if he had been driving at a proper speed with adequate lights.
In 8 Am.Jur.2d, Automobiles and Highway Traffic, § 707, and in Annotation, 67 A.L.R. 2d 141, § 7(a), there are set forth a number of cases which hold that the plaintiff was contributorily negligent, or a finding that he was contributorily negligent *46 was justified or required where it appeared that he was driving his vehicle with inadequate, dim, or deflected headlights and was involved in a collision with a vehicle proceeding in the opposite direction, or the same direction, or at an intersection, and also a number of cases which hold that under such circumstances the plaintiff was not negligent or that, if he was negligent, it was not a contributing cause of the collision. A study of a number of these cases, which have reached divergent results, shows that each case was controlled by its attendant facts and circumstances.
That defendant was guilty of negligence in operating her automobile on "low beam" at a speed of 45 miles an hour in drizzling rain and fog, when her head lamps were illuminating the highway only two car lengths ahead, is manifest. However, if more than one legitimate inference can be drawn from the evidence, the question of proximate cause is to be determined by the jury. Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601. Defendant's evidence would permit a jury to find that she was driving her automobile at night with her headlights on low beam and her windshield wiper working, under prevailing conditions of drizzling rain and fog, at a speed of 45 miles an hour in a 55-mile speed zone in her extreme right lane of traffic on a four-lane highway, when her head lamps were illuminating the highway only two car lengths ahead; that she was watching the road ahead of her; that under such conditions it would have been hazardous for her to have been watching a parking lot off the four-lane highway to her left; that plaintiff drove his automobile with no lights burning into the highway about two car lengths, or about 25 feet, ahead of her and in the path of her lane of traffic; that with plaintiff's automobile coming into the highway from her left, it would not have come within the ambit or spread of the rays of her head lamps if they had been on bright and had complied strictly with the provisions of G.S. § 20-131(a), in time to have permitted defendant to see it and to avert a collision; and that even though defendant was negligent in the operation of her automobile, it did not contribute to her injuries as a proximate cause thereof. The trial court properly denied plaintiff's motion for judgment of compulsory nonsuit of defendant's counterclaim or cross-action.
In its charge on the fifth issue, the court instructed the jury, inter alia, that if defendant was entitled to recover at all, she was entitled to recover for future suffering of body and mind, and that if by such injury she has been to any extent permanently disabled, then the jury should take such fact into consideration in determining her damage. Plaintiff assigns this part of the charge as error, on the ground that defendant has offered no evidence tending to show that she sustained any permanent injury in the collision, which will result in future suffering.
The amount of pecuniary damages is not presumed. The burden of proving such damages is upon the party claiming them to establish by evidence, (1) such facts as will furnish a basis for their assessment according to some definite and legal rule, and (2) that they proximately resulted from the wrongful act. If there is no evidence as to the extent of the pecuniary damage, there can be no recovery of substantial damages, where the elements of damage are susceptible of pecuniary admeasurement. Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658; 25 C.J.S. Damages, § 144.
Where there is evidence from which a conclusion of permanent injury proximately resulting from the wrongful act may properly be drawn, the court should charge the jury so as to permit its inclusion in an award of damages. On the other hand, where there is not sufficient evidence of the permanency of an injury proximately resulting from the wrongful act, the court should not give an instruction allowing the jury to assess damages for permanent injuries. To warrant an instruction *47 permitting an award for permanent injuries, the evidence must show the permanency of the injury and that it proximately resulted from the wrongful act with reasonable certainty. While absolute certainty of the permanency of the injury and that it proximately resulted from the wrongful act need not be shown to support an instruction thereon, no such instruction should be given where the evidence respecting permanency and that it proximately resulted from the wrongful act is purely speculative or conjectural. Hermilla v. Peterson, 171 Neb. 365, 106 N.W.2d 507; Diemel v. Weirich, 264 Wis. 265, 58 N.W.2d 651; MacDonald v. Firth, 202 Va. 900, 121 S.E.2d 369; 25 C.J.S. Damages, § 185, d.; 15 Am.Jur., Damages, § 377.
Defendant testified as to the injuries she sustained in the collision substantially as follows: As a result of the collision, she was thrown from her automobile and knocked unconscious. When she recovered consciousness in a hospital the next morning, she had some pulled muscles in her neck and could not raise her head off the bed, and her head and left leg were bruised. During her stay in the hospital, she could not lift her head up because of these muscles, her head and leg hurt her, and she could hardly move her leg for a while. She had had no prior injury to her head and leg. Her physician in the hospital was Dr. Morgan. While she was in the hospital, he performed a rectal operation upon her, which had no connection with the collision. On 2 June 1960 she was discharged from the hospital and removed to her home. She was confined there for some time. About a month later she returned to work as a looper at Vision Hosiery in Belmont. She was out of work about a month. Her head and neck still hurt. Her left leg still hurts; it has never gotten better; it has a numbness. She can sit a while and it goes to sleep and gets real numb, and she can hardly walk. She has been to see Dr. Morgan several times about her leg. He sent her to see Dr. Miller, an orthopedic doctor. She saw him twice in August 1962. He prescribed exercises for her leg. Dr. Morgan's bill for attending her for her injuries sustained in the collision was $25.
Dr. Charles Morgan, a witness for plaintiff, testified in substance except when quoted: He saw defendant on the night of 26 May 1960 in the emergency room at Gaston Memorial Hospital. She was complaining of headache and of bruises on her leg and body. She was quite dazed. She had amnesia as to the circumstances immediately preceding the accident. Her amnesia cleared up after 12 to 14 hours. He saw her during her stay in the hospital. In the hospital she had some bruised areas on her left hip, left thigh, and tenderness over the area. Subsequently he saw her at his office. The tenderness had disappeared, but she had some numbness to pinpricks or touching of the left thigh area. Because of pain in her left hip and numbness to pin-pricks, he referred her for an orthopedic consultation. When he examined her at the hospital, no bleeding was apparent, and there was no rigidity or stiffness of the neck. In the hospital he took X-rays of her skull and of her neck, and they were normal. "I had noted in the hospital records no indication of bruising to the left leg or scratches or cuts. The only specific statement with regard to this was in the emergency room, at which time nothing was apparent at that time on admission. In the discharge notes I've noted no complaints about the left leg or any injury to it. * * * The appearance of the area as far as the left leg and thigh are concerned here, or what you might want to term the hip area, seemed at the time to be of relatively trivial or slight nature. There was nothing apparent in the emergency room, and, of course, it takes some time usually for a relatively moderate bruise to develop when you see something like this. It remained in my opinion relatively trivial at least `til I discharged her from the hospital. I made no notes of that. It was something which in this sense we expected to clear itself *48 without any specific treatment, as we would expect a contused area that might develop to do. * * * Well, the patient's had continuing complaints." Dr. Morgan expressed no opinion that any of defendant's injuries were permanent, and no opinion as to the cause of the pain and numbness in defendant's left leg.
Dr. Miller was not called as a witness. We have summarized all the evidence in the record as to defendant's injuries.
Defendant's testimony is to the effect that at the time of the trial her head and neck and left leg still hurt, and that she still has numbness in her left leg. Is this condition permanent, and was it proximately caused by the wrongful act of plaintiff? Is this numbness in her left leg caused or contributed to by the injuries she sustained in the collision, or is it caused or contributed to by poor circulation or arthritis? Defendant's evidence gives no answer; it is left in the realm of conjecture and speculation. The record has no evidence that would permit a jury to find with reasonable certainty that she sustained any permanent injury as a proximate result of the collision. The instruction permitting the jury to award damages for permanent injury was highly prejudicial to plaintiff, because it is apparent from the evidence in the record of defendant's injuries, and of her continuing complaints of pain, which complaints of pain are subjective in character, and from the size of the verdict that the jury awarded defendant damages on the theory she had sustained permanent injuries proximately resulting from the collision.
In Diemel v. Weirich, supra, the Court said: "It is a rare personal injury case indeed in which the injured party at time of trial does not claim to have some residual pain from the accident. Not being a medical expert, such witness is incompetent to express an opinion as to how long such pain is going to continue in the future. The members of juries also being laymen should not be permitted to speculate how long, in their opinion, they think such pain will continue in the future, and fix damages therefor accordingly."
Plaintiff has numerous other assignments of error to the charge in respect to the first, second, and fourth issues, which present serious questions as to whether the trial judge complied with the provisions of G.S. § 1-180 requiring him to declare and explain the law arising on the evidence given in the case. We refrain from a discussion of these other assignments of error, for the questions presented thereby may not recur when the case is tried again. In our opinion, and we so hold, plaintiff is entitled to a new trial, and it is so ordered.
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336101/ | 136 S.E.2d 783 (1964)
STATE ex rel. Wayne BRONAUGH
v.
The CITY OF PARKERSBURG, West Virginia, etc., et al.
No. 12312.
Supreme Court of Appeals of West Virginia.
Submitted April 28, 1964.
Decided June 9, 1964.
*784 William L. Jacobs, Parkersburg, for relator.
Charles V. Renner, Parkersburg, for respondents.
CAPLAN, Judge:
In this original proceeding in mandamus instituted in this Court on February 4, 1964, the petitioner, Wayne Bronaugh, seeks a writ to compel the defendants, The City of Parkersburg, a Municipal Corporation, and Paul D. Bee, Superintendent of the Department of Public Safety of the City of Parkersburg and, as such, an ex officio member of the Board of Trustees of the Camden-Clark Memorial Hospital, and H. E. Dearth, Okey Bailes, George Stevenson, W. W. Jackson, Max Beren, Dr. Charles Goodhand, Elsie G. Hiehle, B. Barrett Evans, Roy Bundy, R. E. Stealey, Kathryn M. England, Joseph R. Farra, George Ruoff and H. Sutton Sharp, as members of the Board of Trustees of the Camden-Clark Memorial Hospital, "to honor the petitioner's application for Staff Membership in and to use the facilities of the said Camden-Clark Memorial Hospital, or in the alternative commanding and compelling the said Board of Trustees of said Camden-Clark Memorial Hospital to give to the petitioner notice and hearing as required by law with respect to his request for Staff Membership and request for the privilege of using the facilities of said public hospital, * * *." A rule was granted by this Court returnable April 28, 1964, at which time the case was submitted *785 for decision upon the pleadings, exhibits and stipulation, and upon the briefs and arguments of counsel.
Wayne Bronaugh is a physician and surgeon. Although he is a resident of Belpre, Ohio, he has been licensed to practice medicine in the State of West Virginia since 1933 and has practiced his profession in the Parkersburg area for more than thirty years. Doctor Bronaugh is a graduate of Jefferson Medical College in Philadelphia, a member of the American Medical Association, a member of the Ohio and West Virginia Medical Associations, and is a member of the Parkersburg Academy of Medicine. For many years the petitioner had been a member of the staff of the Camden-Clark Memorial Hospital and performed professional services for his patients at that institution.
Camden-Clark Memorial Hospital is a public hospital. It is owned by the City of Parkersburg and is under the general supervision and control of the council of said city, acting through a Board of Trustees, the members of which are defendants in this proceeding.
On July 1, 1960, the petitioner's staff privileges at that hospital were suspended for a period of three months. It is apparent from the record that sometime after the expiration of the suspension period Doctor Bronaugh made application for reinstatement as a member of the staff. Staff membership is granted on an annual basis from July 1 to June 30. The record does not reveal the exact date of his application for reinstatement as a staff member but on November 19, 1963, the Board of Trustees of said hospital passed a resolution denying the petitioner staff membership, stating therein that "there has been presented to the Board of Trustees at this meeting credible information that the privileges of the said Wayne Bronaugh, M.D., were revoked by the St. Joseph's Hospital, Parkersburg, West Virginia, for good and sufficient cause and reason, * * * that the application for membership of the said Wayne Bronaugh, M.D., on the staff of this hospital be deferred until such time that the said Wayne Bronaugh, M.D., is reinstated as a member in good standing on the staff of said St. Joseph's Hospital, or that the said Wayne Bronaugh, M.D., shows unto this Board of Trustees that said St. Joseph's Hospital is ready and willing to reinstate him as a member of its staff in good standing."
The petitioner alleges that he repeatedly has attempted to be advised of the reasons for the denial of staff membership but that no reason has ever been given. He further alleges that he was unable to obtain a hearing on any charges upon which the Board may rely. The record reveals that the Board of Trustees forwarded a copy of the aforesaid resolution to the petitioner and that he was not afforded a hearing on the said Board's action.
It is the position of the defendants that the petitioner was cognizant of the reason for the revocation of his staff privileges at St. Joseph's Hospital and it was therefore not necessary to give any further reasons for their action or to grant him a hearing in relation thereto. In their demurrer the defendants say that the petitioner fails to allege grounds for mandamus; that mandamus is not the proper remedy in this case; and that the petitioner fails to allege that he has the necessary qualifications for staff membership or that he has complied with the requirements of the by-laws and rules and regulations of the said hospital in making his application.
Certain exhibits were filed by the parties hereto which, under the provisions of Rule II, 8, of the Rules of this Court, may become a part of the pleadings. By a properly executed stipulation the parties agree that the exhibits so filed are true copies of the originals thereof.
The first question to be considered is whether mandamus is the proper remedy for the relief sought. It has been authoritatively stated that the primary purpose or *786 function of a writ of mandamus is to enforce an established right and to enforce a corresponding imperative duty created or imposed by law. Brumfield v. Board of Education of Logan County, 121 W.Va. 725, 6 S.E.2d 238; Koebert v. City of Clarksburg, 114 W.Va. 406, 171 S.E. 892; 55 C.J.S. Mandamus § 51. We must look to the facts and circumstances of this case to determine the right of the petitioner and the duty of the defendants.
The petitioner, Wayne Bronaugh, applied for membership on the staff of Camden-Clark Memorial Hospital, a public hospital. That his application was proper and his qualifications satisfactory was readily admitted by the following language contained in a letter from Charles F. Whitaker, M.D., Chairman, Credentials Committee, to the president of the staff, a copy of which letter is an exhibit herein: "This application has been reviewed by each member of the Credentials Committee, and we find it in order and take no exception as to the qualifications and data which has been submitted." Numerous meetings were thereafter held by the hospital authorities in relation to this petitioner's application. Subsequently, on November 19, 1963, the Board of Trustees, by resolution, deferred the petitioner's application for membership on the staff until he be reinstated as a member of the staff of St. Joseph's Hospital.
The authorities are almost unanimous in holding that private hospitals, in the exercise of their discretion, have the right to exclude licensed physicians from the use of their facilities. Public hospitals, however, are not entitled to that immunity. A regularly licensed physician and surgeon has a right to practice in the public hospitals of the state so long as he stays within the law and conforms to all reasonable rules and regulations of the institutions. Henderson v. Knoxville, 157 Tenn. 477, 9 S.W.2d 697, 60 A.L.R. 652; Findlay v. Board of Supervisors, 72 Ariz. 58, 230 P.2d 526, 24 A. L.R.2d 841; Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N.E.2d 469, 85 N.E.2d 365; 26 Am.Jur., Hospitals and Asylums, Section 9; 41 C.J.S. Hospitals § 5.
While the right of the petitioner in this proceeding to become a member of the staff of this public hospital is not unlimited, such right nonetheless exists so long as he stays within the law and conforms to all reasonable rules and regulations of the hospital. He has a right to be admitted as a member of the staff or to be informed of the reason for the board's denial of that right. If he has violated the law or has failed to conform to the rules of the hospital he should be afforded an opportunity to hear any charge against him and to offer his defense thereto. The petitioner has been given no such opportunity here, although the record clearly shows that he many times has attempted to obtain a hearing.
It has been suggested that mandamus is not the proper remedy if the petitioner has any remedy at all. Admittedly, mandamus is not available where another adequate and specific remedy exists. This Court held in Point 2 of the Syllabus, Stowers v. Blackburn, 141 W.Va. 328, 90 S.E.2d 277: "Mandamus will not be denied because there is another remedy, unless such other remedy is equally beneficial, convenient and effective." It is stated in 12 M.J., Mandamus, Section 9: "A remedy cannot be said to be fully adequate to meet the justice and necessities of a case, unless it reaches the end intended, and actually compels a performance of the duty in question." In the instant case the petitioner has a right to be admitted as a member of the staff of this public hospital so long as he stays within the law and conforms to all reasonable rules and regulations of the hospital. The governing body of such public hospital is under a corresponding duty to either admit the petitioner to staff membership or to deny his application for substantial cause or reason. No other remedy will more adequately compel the performance of this duty. The authorities reflect that the tendency is to enlarge and advance the remedy of mandamus rather than to restrict and *787 limit it, in order to afford the relief a party is entitled to when there is no other adequate and complete relief: Stowers v. Blackburn, 141 W.Va. 328, 90 S.E.2d 277; Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; Cross v. West Virginia Central and Pittsburgh Railway Company, 35 W.Va. 174, 12 S.E. 1071; 12 M.J., Mandamus, Section 3.
Defendants assert that injunctive relief is available to the petitioner and that he is thereby precluded from resorting to mandamus. We can not agree with this assertion. In this case the petitioner is seeking to restore the status quo, that is, he is attempting to compel the defendants to reinstate him as a hospital staff member. He is seeking affirmative relief. Any injunctive relief in these circumstances would be mandatory in nature, a harsh remedial process, used only in cases of great necessity and not looked upon with favor by the courts. 28 Am.Jur., Injunctions, Section 17. It was succinctly stated by this Court in Backus v. Abbot, 136 W.Va. 891, 69 S.E.2d 48: "When the same relief sought by mandatory injunction in a suit in equity may be fully had in a proceeding in mandamus, a court of equity is without jurisdiction to entertain such suit for injunctive relief."
A further position taken by the defendants is that mandamus will not lie where the duty sought to be enforced is discretionary. It is generally accepted that mandamus may not be employed to compel an administrative officer to perform a particular act which he has refused to do, where his action depends upon the exercise of judgment or discretion on his part. However, when his refusal is arbitrary or capricious or is based upon no substantial reason, mandamus will lie. Backus v. Abbot, 136 W.Va. 891, 69 S.E.2d 48; Beverly Grill, Inc. v. Crow, 133 W.Va. 214, 57 S.E.2d 244; State ex rel. Dillon v. Neal, 104 W. Va. 259, 139 S.E. 757; State ex rel. Noyes v. Lane, 89 W.Va. 744, 110 S.E. 180; 12 M.J., Mandamus, Section 6.
In the instant case the petitioner was given no substantial reason for the denial of his request. He was merely told that his application was denied because similar privileges were revoked at a private hospital "for good and sufficient cause and reason". This does not inform him of the reason for the denial of his application for staff membership at Camden-Clark Memorial Hospital. He was not thereby apprised of the commission of any violation of law or of the failure to comply with the rules and regulations of the public hospital to which he sought admission as a staff member. In the circumstances of this case the Board gave no substantial reason for its refusal and such action was arbitrary. We are of the opinion that mandamus is the proper remedy to compel the defendants to afford the petitioner an opportunity to be confronted with the reasons for the denial of his application and to be heard and offer his defense in relation thereto.
It is clear from the record in this case that one must be a member of the staff of this public hospital before he can practice his profession therein. A physician or surgeon who is not permitted to practice his profession in a hospital is, as a practical matter, denied the right to fully practice his profession. Much of what a physician or surgeon must do in this day of advanced medical technology can be done only in a hospital. Only there are found the facilities necessary for proper diagnosis or treatment. Although one's right to practice medicine is not absolute and unqualified, it is a valuable franchise afforded to one properly trained which should be reasonably protected. To make certain that this petitioner is not unduly deprived of his license to effectively practice his profession, it must be determined that the defendants acted fairly and that their decision was based on sufficient evidence. They can not act arbitrarily. Here their action was based on hearsay evidence, that is, matters which allegedly occurred at another hospital. This can not form a basis for any substantial *788 reason to deny the petitioner's application for membership on the staff.
Although the defendants say that they have merely deferred action on the petitioner's application, their action is in effect a denial. They deferred action on his application "until such time that the said Wayne Bronaugh, M.D., is reinstated as a member in good standing on the staff of said St. Joseph's Hospital." The record clearly reveals that the petitioner has made an earnest effort to be reinstated as a staff member at that private hospital but has been unsuccessful. St. Joseph's, being a private hospital, is not obligated to reinstate the petitioner. There is no manner in which the petitioner legally can force that hospital to reinstate him. Actually, the defendants have conditioned Doctor Bronaugh's admission as a staff member of Camden-Clark Memorial Hospital upon the happening of an event over which the latter has no control.
In Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N.E.2d 469, 85 N.E.2d 365, the governing body of a public hospital, through its rules and regulations, required a doctor to become a member of a certain medical association before he could be eligible to become a staff member of such public hospital. This was a voluntary medical association to which he may not have desired to belong or to which for some reason he may not have been admitted. The Court said that such regulation was unreasonable for the reason that whether he could ever become a member of that association was beyond his control. Likewise, in the instant case the defendants are exacting a requirement of the petitioner which is beyond his control to fulfill. In effect, the defendant trustees are making eligibility for staff membership dependent, not upon their own regulations, but upon the occurrence of a contingency at another institution, over which none of the parties hereto has any control. This, in our opinion, constitutes a further abuse of discretion.
Although we believe that the defendants have abused their discretion, we are not disposed, in the present circumstances of this case, to compel the admission of this petitioner as a staff member of Camden-Clark Memorial Hospital. We do believe, however, that the petitioner has established a clear legal right to a hearing on his application and that such hearing must be afforded him.
For the foregoing reasons a writ is awarded compelling the defendants to grant the petitioner a hearing on his application in accordance with the views expressed herein.
Writ awarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336134/ | 136 S.E.2d 688 (1964)
262 N.C. 276
Louis GAMBLE
v.
Lucian Kelly STUTTS.
No. 522.
Supreme Court of North Carolina.
June 12, 1964.
*689 Nance, Barrington, Collier & Singleton, Fayetteville, for plaintiff appellant.
Albert A. Corbett, Smithfield, for defendant appellee.
RODMAN, Justice.
As an affirmative defense to Gamble's action, defendant alleges these facts: Stutts, in July 1958, instituted an action in the Superior Court of Johnston County to recover from Gamble $10,500 for personal injuries and property damage sustained by him because of Gamble's negligence which caused the collision of May 30, 1958. That action was, on Gamble's motion, based on diversity of citizenship, moved to the U. S. District Court for trial. Gamble denied the collision was caused by his negligence. He asserted a counterclaim in the amount of $26,500 for personal injuries and property damage resulting from Stutts' negligence. After the pleadings were filed, the District Court ordered a pre-trial conference. The parties were represented at that conference by the attorneys who had signed the pleadings. The case was set for trial in the District Court in Raleigh on October 24, 1960, "when and where plaintiff, Stutts, and defendant, Louis Gamble, were present in court with their counsel; that just before entering into trial of said cause, the defendant, Louis Gamble, through his counsel agreed to pay, and soon thereafter, paid or caused to be paid to Lucian Kelly Stutts, the sum of $1500.00 in settlement of plaintiff's claim for injuries and property damages, and further agreed that his counterclaim be dismissed; that defendant, Gamble, obtained from the plaintiff, Lucian Kelly Stutts, a general release releasing the defendant, Louis Gamble and Selected Risk Insurance Company, from further claims by said plaintiff Stutts, arising out of the collision referred to herein, as appears from a copy of said release attached hereto as defendant Stutts' EXHIBIT H.
"That the plaintiff, Louis Gamble, was present in the courtroom in Raleigh, N. C. at the time of said settlement, acquiesced in and had full knowledge of said settlement, as set forth above, and the dismissal by the court of his counterclaim for alleged injuries and property damages."
Attached to the answer, to support the plea of settlement, are copies of the release executed by Stutts, the pleadings and orders made in the action brought by Stutts against Gamble.
Gamble, in reply to the plea of settlement, alleged: The action instituted by Stutts was removed to the Federal court by the attorney for his insurance carrier. "[P]laintiff *690 (then defendant) Louis Gamble was represented by Attorney Hillard Chapnick, Patterson, New Jersey, and Louis Gamble's liability insurance company, Selected Risks Insurance Company, was represented by Attorney Joseph C. Moore." Gamble and his attorney, Chapnick, "recognized the right of Selected Risks Insurance Company pursuant to the terms of the liability policy to settle any claims against Gamble, but specifically instructed Attorney Joseph C. Moore, in event of such settlement, that it be effectuated in such a manner that Louis Gamble's counterclaim or right to institute an independent action be not adversely affected." Stutts' attorney "was aware at all times of Louis Gamble's intent to pursue his claim against Stutts."
Recognizing the limitation on Mr. Moore's authority to act, the parties, when the settlement was made, stipulated: "It is hereby stipulated by all parties hereto, through their respective counsel, that an order may be entered by the Court, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, that the complaint of plaintiff and counterclaim of defendant be dismissed."
Stutts, in support of his motion to strike plaintiff's reply, asserts, "said allegations are irrelevant, redundant, immaterial and improper." The court assigned no reason for allowing the motion to strike plaintiff's reply.
This is a typical case where each operator of a motor vehicle places the entire blame for a collision and resulting damages on the other. In such a case, a payment by one to the other in compromise and settlement puts an end to the controversy. Neither can thereafter recover from the other. Keith v. Glenn, N.C., 136 S.E.2d 665; Snyder v. Oil Company, 235 N.C. 119, 68 S.E.2d 805. It follows, therefore, that defendant's plea of settlement, if established, effectively bars plaintiff's cause of action; but a payment made by a third person who acts without authority from claimant does not bar him unless subsequently ratified. Bradford v. Kelly, 260 N. C. 382, 132 S.E.2d 886; Lampley v. Bell, 250 N.C. 713, 110 S.E.2d 316; Beauchamp v. Clark, 250 N.C. 132, 108 S.E.2d 535.
Here, plaintiff denies any settlement made or ratified by him. He admits his insurance carrier, acting through its counsel, made a payment to Stutts, but he says that payment was made for the sole purpose of terminating the liability of the insurance company, a right which it could exercise without consulting him. G.S. § 20-279.21(f) (3); Bradford v. Kelly, supra; Daniel v. Adorno, D.C.Mun.App., 107 A.2d 700; Perry v. Faulkner, 98 N.H. 474, 102 A.2d 908; Wm. H. Heinemann Cream v. Milwaukee Auto Ins. Co., 270 Wis 443, 71 N.W.2d 395, aff'd 270 Wis. 443, 72 N.W.2d 102; Eller v. Blackwelder, 204 Va. 292, 130 S.E.2d 426. He alleges the action in the Federal court was dismissed pursuant to Federal Rule 41(a), expressly preserving his right to assert his claim against Stutts.
Plaintiff cannot be deprived of the right to show facts necessary to determine whether he is bound by the payment made to Stutts, and because he has the right to show what the facts are, he had the right to allege those facts.
The court erred in allowing defendant's motion to strike. Notwithstanding that conclusion, it does not follow that we should reverse Judge Walker's order. That would be true only if the error were prejudicial. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597; In re Will of Harrington, 252 N.C. 105, 113 S.E.2d 21.
It is provided by statute, G.S. § 1-159: New matter in an answer, if not a counterclaim, is "deemed controverted by the adverse party as upon a direct denial or avoidance, as the case requires." Under this statutory provision, plaintiff is permitted to offer evidence avoiding the plea in bar without the necessity of alleging the facts by way of reply. Creech v. Creech, 256 N.C. 356, 123 S.E.2d 793; Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876; Williams *691 v. Thompson, 227 N.C. 166, 41 S.E.2d 359; Virginia Trust Company v. Dunlop, 214 N.C. 196, 198 S.E. 645; Simon v. Masters, 192 N.C. 731, 135 S.E. 861; Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091; Askew v. Koonce, 118 N.C. 526, 24 S.E. 218.
Because plaintiff is not prejudiced by the erroneous ruling, the judgment is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336154/ | 109 Ga. App. 422 (1964)
136 S.E.2d 387
ATLANTIC COAST LINE RAILROAD COMPANY
v.
HEATH, by Next Friend.
40522.
Court of Appeals of Georgia.
Decided March 11, 1964.
Rehearing Denied March 24, 1964.
*424 Cumming, Nixon, Eve, Waller & Capers, Joseph B. Cumming, for plaintiff in error.
Randall Evans, Jr., contra.
PANNELL, Judge.
1. "The amendment to the Code, § 6-806, by the Act of 1946 (Ga. L. 1946, p. 726), making certain changes in our law of appellate procedure, is construed to mean that, where the trial judge's certificate to a bill of exceptions varies from the form as contained in § 6-806, the language of his certificate cannot, merely by implication, be construed as being a denial of the truth of any part of the bill; but the *423 language of the certificate shall be construed as a verification of the contents of the bill unless it affirmatively appears to be a denial of the truth of some part thereof." W. T. Rawleigh Co. v. Forbes, 202 Ga. 425 (1) (43 SE2d 642); Crumley v. Hall, 202 Ga. 588 (1) (43 SE2d 646). Accordingly, a bill of exceptions is not conditionally certified where the certificate, after having asserted that the bill of exceptions is true, recites that all the record necessary is specified, and the judge adds, "except" designated pleadings. Johnson v. Giraud, 191 Ga. 577 (1) (13 SE2d 365); Harris v. Lumpkin, 136 Ga. 47 (1) (70 S.E. 869).
2. Where a number of witnesses testify positively that a train whistle was blown on the occasion in question, and plaintiff, suing by next friend, when asked, "Did you hear the whistle?" answered, "Not that I remember," such answer is equivalent to testifying that he did not hear the train whistle, Franklin v. Mayor &c. of Macon, 12 Ga. 257 (2), Mimbs v. State, 2 Ga. App. 387, 388 (2) (58 S.E. 499), Saliba v. Saliba, 202 Ga. 791, 806 (44 SE2d 744), and the question at issue thus being supported on one side by positive evidence and on the other side by negative evidence, is issuable and not to be determined by the court as a matter of law. Climer v. Southern R. Co., 43 Ga. App. 650 (1, 2) (159 S.E. 782), and cits.; Hunter v. State, 4 Ga. App. 761 (1) (62 S.E. 466); Pendergrast v. Greeson, 6 Ga. App. 47 (64 S.E. 282); Peak v. State, 5 Ga. App. 56 (62 S.E. 665).
3. The question as to whether the whistle was blown in the present case being a question for the jury, and the evidence in this case in other particulars which might affect the application of the rule in headnote 2 being substantially the same as that in the case of Heath v. Charleston &c. R. Co., 218 Ga. 786 (130 SE2d 712), reversing Charleston &c. R. Co. v. Heath, 107 Ga. App. 23 (129 SE2d 92), holding that the jury was authorized to find that a failure to comply with the Blow Post Law could have been the proximate cause of the injury, and being bound by this decision, we must hold that the trial court did not err in overruling the motion by the defendant for a judgment notwithstanding the verdict for the plaintiff.
Judgment affirmed. Felton, C. J., and Frankum. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336163/ | 136 S.E.2d 71 (1964)
261 N.C. 760
NORTH CAROLINA STATE HIGHWAY COMMISSION
v.
John C. PEARCE and wife, Annie Pearce.
No. 533.
Supreme Court of North Carolina.
May 6, 1964.
*72 Thomas Wade Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., Claude W. Harris, Trial Atty., for plaintiff appellee.
Miller & Beck, by Adam W. Beck, Asheboro, for defendant appellants.
HIGGINS, Justice.
All matters in dispute were settled by a consent judgment except the amount of just compensation which the plaintiff is due the defendants for the taking of a perpetual easement for highway purposes over their lands. With its declaration of taking, the plaintiff had deposited the sum of $5,950.00 as its estimate of the amount due. The defendants, in their answer, demanded $20,000.00. The jury fixed the recovery at $8,500.00.
The defendants demand a new trial upon the asserted ground the trial judge committed errors of law in three particulars: (1) By refusing to permit defendants' witnesses Galloway and Roberts to testify as to the price paid for other property in the vicinity; (2) by refusing to order a mistrial or set aside the verdict because of the argument of plaintiff's counsel; (3) by failing to instruct the jury as to the correct rule for the assessment of damages.
The defendants' witness Galloway, a real estate dealer, testified he knew the property involved and that immediately before the taking the 12 acres of defendants' property was worth $72,808.00; and immediately after, the remainder was worth $58,158.00, leaving a total damage of $24,650.00. The witness attempted to testify with respect to the sale of a lot on Balfour Avenue, (though he did not make the sale) to Esso (Humble Oil Company). Upon objection, the court excused the jury "to determine whether or not it was comparable." The court declined to permit the witness to tell how he knew the price, and refused to admit evidence on the ground it violated the hearsay rule. The court did not permit the defendant to insert in the record Galloway's answer to the question as to how he knew the price Esso paid for the lot.
The witness Roberts testified he knew the Pearce property and that immediately before the taking the whole was worth $74,439.00, and immediately afterwards the remainder was worth $48,001.00. In the abscence of the jury the witness offered to testify that he sold a lot across 220 to "Carr Drug" and the Balfour Avenue property to Humble Oil Company, and the price paid by each purchaser. During the preliminary examination in the absence of the jury, it developed that the Oil Company had a lot on either side of the Balfour lot which was needed in order to complete the development. The judge held this sale to Humble was a pressure or a forced purchase, because of necessitynot on the open marketand refused to permit the witness to testify as to the price paid.
Evidently, in excluding the proffered testimony of Galloway and Roberts as to the *73 sale of other properties, the judge had in mind what the Court said in Barnes v. Highway Comm., 250 N.C. 378, 109 S.E.2d 219: "Actually no two parcels of land are exactly alike. Only such parcels may be compared where the dissimilarities are reduced to a minimum and allowance is made for such dissimilarities. * * * It is within the sound discretion of the trial judge to determine whether there is a sufficient similarity to render the evidence of the sale admissible. It is the better practice for the judge to hear evidence in the absence of the jury as a basis for determining admissibility."
In this case the evidence of similarity between the defendants' property and the lots purchased by Carr Drug and by Humble Oil, was not sufficient to require the court to admit evidence of the prices at which they sold. However, the trial judge should have permitted the defendants to insert in the record Galloway's evidence as to how he knew the price Humble Oil Company paid for the lot on Balfour Avenue. Having excepted to the exclusion of the evidence, the defendants were entitled to have the answer of the witness inserted in the record for purposes of review on appeal. However, the defendants' witness Roberts disclosed that the sale to Humble was not a sale on the open market, so the exclusion of Galloway's answer was not prejudicial. Gallimore v. State Highway Comm., 241 N.C. 350, 85 S.E.2d 392; Harmon v. Harmon, 245 N.C. 83, 95 S.E.2d 355, 63 A.L.R. 2d 808; Brown v. W. T. Weaver Power Co., 140 N.C. 333, 52 S.E. 954, 3 L.R.A.,N.S., 912.
After the defendants had completed their evidence, the plaintiff called as a witness H. R. Trollinger who testified he lived in Asheboro, had been engaged in the appraisal of real estate for 20 years. He had made appraisals for many banks, oil and power companies, city, county, State and Federal agencies, and private individuals. He gave as his opinion the fair market value of the Pearce property immediately before March 8, 1962, was $45,996.00. The value of the remaining property immediately after the appropriation was $39,450.00. On cross-examination, the witness testified he had appraised approximately 180 parcels of land for the State. The attorney for the Highway Commission argued to the jury that Mr. Trollinger had appraised more than 180 parcels for the Highway Commission which had settled with the majority of the owners on the basis of his appraisals. The court promptly and properly sustained the defendants' objection to the argument and cautioned the jury not to consider it. We must assume the jury heeded the instruction and did not consider it to the defendants' prejudice.
Finally, the defendants contend the court committed prejudicial error by charging the jury: "* * * (T)he measure of damages in such a proceeding as this is the difference between the fair market value of the entire tract of 12 acres immediately before the taking and the fair market value of what is left after the taking of the .35 of an acre in this case. * * * the court has given you * * * the rule of law in determining just what is fair market value of the entire tract before the taking. When all of you have agreed upon that, then you will write the figure down. Then, you will determine what the fair market value of the remaining land is after the taking; write that figure down and subtract one figure from the other; * * * your difference will be your answer."
The defendants contend the evidence disclosed they had begun constructing a building on the remaining portion of the land before the taking and completed it afterwards, which added to the after-taking value; that the jury may have included the completed structure in their value of the remaining portion, thus reducing defendants' damages. However, the evidence of all witnesses fixed before and after value as of the date of the taking. There is no *74 likelihood or reason to suppose the jury failed to understand they were dealing with the value of the whole immediately before the taking and what was left immediately afterwards, as required by G.S. § 136-112. The date of the taking was stipulated. Nothing in the charge suggests the defendants were penalized by completing the building which they had previously begun; or that the jury failed to understand the issue before them.
A careful review of the assignments of error fails to disclose any reason in law why the verdict and judgment should be disturbed.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336160/ | 244 S.C. 276 (1964)
136 S.E.2d 708
William EDWARDS, Respondent,
v.
Billy Lucian LAWTON and one 1955 Chevrolet Automobile, S.C. License No. D-154636 (1963) Appellant.
18216
Supreme Court of South Carolina.
May 25, 1964.
Paul Montjoy, Esq., of Greenville, for Appellant.
*277 Richard J. Foster, Esq., of Greenville, for Respondent.
May 25, 1964.
TAYLOR, Chief Justice.
This action was instituted in the County Court for Greenville County before the Honorable James H. Price, J., for personal injuries and property damage arising out of an automobile accident. The jury returned a verdict for plaintiff in the amount of $5,000.00 actual damages.
The only question for determination is whether the trial Judge committed error in permitting plaintiff's attorney, over objection of the defendant, to argue to the jury that if the jury found plaintiff was entitled to compensation for pain and suffering, one of the allowable methods of computing such compensation was through the use of a per diem formula, and in further allowing plaintiff's attorney to illustrate the use of such formula on the blackboard.
It has been settled in this State that counsel may use a blackboard during jury argument to illustrate points that are properly arguable or to bring to the jury's attention facts or figures properly revealed by the evidence. We stated in Johnson v. Charleston & W.C. Ry. Co., 234 S.C. 448, 108 S.E. (2d) 777:
"There is no impropriety in counsel's use of a blackboard, during his argument to the jury, for the purpose of fairly illustrating points that are properly arguable. 53 Am. Jur., *278 Trial, Section 490; 88 C.J.S., Trial, Section 177; Lauderdale County Cooperative v. Lansdell, 263 Ala. 557, 83 So. (2d) 201; Nehi Bottling Co. of Ellisville v. Jefferson, 226 Miss. 586, 84 So. (2d) 684; Annotation: 44 A.L.R. (2d) 1205. Calculations made, or diagrams drawn, thereon are of course not evidence. Like statements of counsel in oral argument, they should have reasonable foundation in the evidence or in inferences fairly arguable from the evidence. Just as oral argument may be abused, so may such visual argument; and its abuse may be so flagrant as to require a new trial. Control of the arguments of counsel, with regard to the use of such visual aids, as with regard to oral statements, rests in the sound discretion of the trial judge. Johnson v. Life Insurance Co. of Georgia, 227 S.C. 351, 88 S.E. (2d) 260, 55 A.L.R. (2d) 813; Andrews v. Cardosa, Fla. App., 97 So. (2d) 43; Miller v. Loy, 101 Ohio App. 405, 140 N.E. (2d) 38."
In Harper v. Bolton, 239 S.C. 541, 124 S.E. (2d) 54, counsel in the lower Court was permitted to endorse on a blackboard his own personal opinion as to the per diem value of pain and suffering. Finding error in such presentation, we said:
"In allowing counsel for the respondent to endorse on a blackboard his own opinion as to the per diem value of pain and suffering was to permit him to make an argument that had no foundation whatever in the evidence. Though wide latitude and freedom of counsel in arguments to the jury are and ought to be allowed, such arguments cannot be based on facts not in the record, or inferences based on or drawn from facts which are not even admissible in evidence."
The transcript of record contains the argument objected to by defendant, the pertinent parts of which appear as follows:
"* * * Mr. Foreman and gentlemen of the jury, there is no market price on the value for pain and suffering. There is no rule of damages that we could come in here and say *279 that this plaintiff is entitled to so much pain for an arm injury or so much pain for a foot injury. Whatever I say to you with regard to any suggestions about how you may arrive at a verdict is argument and you must consider it so. Any determination for pain and suffering is solely a matter within your province; and it is solely a matter for your judgment. But, if you find that this plaintiff has suffered pain, you may go further and you may decide that he is entitled to have compensation for that pain. You may use any one of a number of methods of arriving at that, and one of them is this; you may decide to try to estimate his pain by what we call a per diem, what may be called a per diem value. It has been almost four months, certainly more than four months since the accident. Now, is he entitled to any compensation I ask you in all fairness, for the suffering that he has endured from the time of this accident up until the day of this trial? * * * Now, if you decide, and you may decide, that he is entitled to fifteen dollars a day, or ten dollars a day, or five dollars a day, or nothing; but if you decide that over the period of the last four months for this one hundred and twenty days, if you should find as a fact that he is entitled to ten dollars a day for that pain and suffering, let us put it on the board and see what that would amount to and see if it will aid you in arriving at a figure. But, up through September at ten dollars a day, is that an unreasonable figure for you to decide? If it is, you can ignore it. But, if you decide that he is entitled to that that will come to some one hundred one thousand, two hundred dollars, the cost of one hundred and twenty days at ten dollars per day. * * * You may decide, Mr. Foreman and gentlemen of the jury, that he is entitled to a dollar a day; you may decide that he is entitled to nothing. But, if you decide that he is entitled to a dollar a day for this condition that will be with him, and if you find that he is going to have this permanent condition for the rest of his life, that would be what? That would amount to three hundred and sixty-five dollars a *280 year. And he has got a life expectancy, and his Honor will charge you that you have the right to consider what we call the Mortuary Table which means that it is set down in statistics how much longer and predicted how much longer that you and I and the rest of us are going to live. And you can apply that to his approximately fifty years that he testified to; that gives him approximately twenty years or a little more than that, but let's say twenty years. If you decide that he is entitled to the sum of a dollar a day that would come to three hundred and six-five dollars a year, and that would be some seven thousand three hundred dollars that he would be entitled to; and we can put that on the board, and we can add that up you may, you have the right to do that, I don't; what I am saying to you, of course, is pure argument, but you have the right to use whatever method you want to arrive at that is a proper compensation for his pain. That comes to a total, according to the figures I have made, of five thousand, one hundred and twenty-five dollars and thirty-three cents. Now, those figures, Mr. Foreman and gentlemen of the jury are not evidence. But they are simply a method that may aid you if you decide that he is entitled to a verdict, if you decide and feel that he is entitled to compensation for his pain, you may decide that he is not, if you do agree with Mr. Burgess that he is not entitled to no compensation for his pain and suffering, all we are entitled to is what actual damages you may find. If you find that he is entitled to compensation for pain and suffering, you may use that method to arrive at it. If you do not feel that's right, you can throw that out the window, for that is argument as you can see from the plaintiff's standpoint. If you decide he is entitled to fifty cents a day that would reduce it half of the seventy-three hundred dollars. You may decide he is entitled to nothing. * * *"
Defendant sets forth in his briefs that he does not contend the question here is the same as the issue decided by Harper v. Bolton, supra, 239 S.C. 541, 124 S.E. (2d) *281 54, and recognizes that the issue then before the Court was "whether the trial Judge committed error in permitting one of the attorneys for the respondent, while addressing the jury and over the objection of the appellant, to endorse on a blackboard his own opinion as to the per diem value which the jury should award to the respondent for her pain and suffering." Defendant contends here that although plaintiff's counsel did not give his opinion as such on the proper sum to be assessed by the jury for pain and suffering, to permit the use of the per diem formula as was heretofore related has the same effect and is error.
"Pain and suffering is recognized by the Courts of this State as a very material element of damages on which a recovery may be bottomed. Campbell v. Hall et al., 210 S.C. 423, 43 S.E. (2d) 129. Damages for pain and suffering are unliquidated and indeterminate in character and the assessment of unliquidated damages must rest in the sound discretion of the jury, controlled by the discretionary power of the trial Judge. Wright v. Gilbert et al., 227 S.C. 334, 88 S.E. (2d) 72. Pain and suffering have no market price. They are not capable of being exactly and accurately determined, and there is no fixed rule or standard whereby damages for them can be measured. Hence, the amount of damages to be awarded for pain and suffering must be left to the judgment of the jury, subject only to correction by the courts for abuse." Harper v. Bolton, supra, 239 S.C. 541, 124 S.E. (2d) 54.
In instant case there is ample testimony of pain and suffering and counsel carefully refrained from giving his opinion as to the per diem value thereof, being careful to point out that only the jury could place a monetary value thereon; and we are of opinion that the use of the per diem formula for illustrative purposes was not error.
*282 For the foregoing reasons we are of opinion that the Order appealed from should be affirmed; and it is so ordered.
Affirmed.
MOSS, LEWIS, BUSSEY and BRAILSFORD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263550/ | 133 N.J. Super. 277 (1975)
336 A.2d 62
FLORENCE L. TURNER, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF THOMAS W. TURNER, PLAINTIFF,
v.
INTERNATIONAL HARVESTER COMPANY, A DELAWARE CORPORATION, AND HALL & FUHS, INC., A NEW JERSEY CORPORATION, DEFENDANTS.
Superior Court of New Jersey, Law Division.
March 7, 1975.
*282 Mr. Mitchell Glucksman for plaintiff.
Mr. Harold I. Braff for defendant International Harvester Company (Messrs. Braff, Litvak, Ertag, Wortmann & Harris, attorneys).
Mr. Frank L. Brunetti for defendant Hall & Fuhs, Inc. (Messrs. Lamb, Hutchinson, Thompson & Chappell, attorneys).
DREIER, J.D.C., Temporarily Assigned.
Defendant Hall & Fuhs, Inc. has moved for summary judgment in this product liability case. The motion shall be granted in part and denied in part for the reasons following.
On or about December 2, 1969 plaintiff's decedent, Thomas W. Turner, acquired a 1967 IHC tractor-truck manufactured by defendant International Harvester Company. There is an issue in the case whether the truck was purchased from defendant Hall & Fuhs, Inc., as set forth in an agreement of sale (Hall & Fuhs, Inc. as the "seller" and *283 Turner as the "buyer"), or whether the truck was in fact purchased from Turner's friend, one Richard W. Carman, or his corporation R.W. Carman, Inc. According to the affidavit of Carman filed in opposition to the motion the truck in question had been traded in by him on a new truck purchased from Hall & Fuhs, Inc. in or about October 1969, and the used truck was delivered to Hall & Fuhs, Inc's place of business during the first week in October 1969. He further alleges that at no time was the truck delivered directly from Carman or his company to Turner. Since this court is enjoined by R. 4:46-2 and the cases interpreting the rule to grant summary judgment only when there is no issue of a material fact, and to grant all favorable inferences to the party opposing such motion, it will be assumed for the purpose of this motion that the truck in question was purchased from Hall & Fuhs, Inc. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954).
The truck was of the type where the engine is located beneath the cab; to work on the engine the cab must be raised and propped or counter-balanced. Two years and four days after taking delivery of the truck, that is, on or about December 6, 1971, plaintiff's decedent was working on the engine. While he was under the cab (which was in its raised position) the cab suddenly collapsed and fell upon him. He died from the ensuing injury. Plaintiff, his widow, sues on behalf of herself and their children for the death on the theories of (a) strict liability, (b) negligence and (c) breach of warranty.
The bill rendered by Hall & Fuhs, Inc. to plaintiff's decedent for the truck in question stated that the sale encompassed:
USED TRACTOR SOLD AS IS
One (1) used 1967 IHC model CO4000D Serial G226064
The price was $14,000 plus sales tax.
The summary judgment motion of defendant Hall & Fuhs. Inc. is based upon two theories. First, that the designation *284 of the sale "as is" in the sale of a used vehicle precludes any claim alleging a defective product; second, the relationship between the parties was that of financing agent and purchaser from a third party and not that of seller and buyer. With respect to the second basis, as noted above this court has determined that the contract and supporting documents (installment sale and security agreement, bill, etc.) signed or issued by Hall & Fuhs, Inc. designate it as the "seller." A sufficient issue of fact is thus raised as to the status of the parties that summary judgment would be improper here on that basis. Therefore, the real questions on this motion are the effect of the sale of used goods and of the words "as is" upon the three causes of action alleged by plaintiff.
I
We will first consider the third claim, that of breach of warranty, for it is the easiest to dispose of. The Uniform Commercial Code in N.J.S.A. 12A:2-316 covers the subject of exclusion or modification of warranties. One subsection reads as follows:
(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."
The next subsection, however, covers the situation now before the court and states:
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and * * * *285 Circumstances here did not indicate other than the normal statutory exclusion of warranties. The New Jersey Study Comment number 3, citing prior New Jersey case law, shows that this section merely restated the then existing law of the State as of the date the Code was enacted. It therefore appears that plaintiff's claim for breach of warranty must be dismissed, because the sale was for used goods explicitly noted "as is."
II
Several recent cases have discussed the necessity for proving a specific defect which caused an injury in order to substantiate a claim in strict liability for tort in product liability actions. See Moraca v. Ford Motor Company, 132 N.J. Super. 117 (App. Div. 1974), aff'd 66 N.J. 454 (1975). That issue, which will no doubt be central to the trial of this matter, is not a proper subject of this motion since discovery has not yet been concluded. The court will assume for the purpose of this motion either that a specified defect existed which caused the cab to fall, or sufficient circumstantial proofs could be shown to substantiate the existence of some defect. There is no question that such defect, if it existed, manifested itself over two years after the truck had been purchased by plaintiff's decedent. Whether this delay exceeded the time within which it was reasonable to expect the cab catch or counterbalance not to be defective is a jury question and will not be decided here. Moraca, at p. 460. If such is shown at trial the tests of liability set forth in Moraca as to remoteness of time would thus be satisfied. See also, Scanlon v. General Motors, 65 N.J. 582 (1974). There also is little question but that a dealer in used equipment is strictly liable for defective work repairs or replacement that such dealer has performed on the vehicle before the sale. Realmuto v. Straub Motors, 65 N.J. 336, 344-345 (1974). What is before this court, however, is the very question left open in Realmuto, where the Supreme Court stated:
*286 * * * The strict liability in tort rule is of course, grounded in reasons of public policy. Restatement, Torts (2d) § 402A, comment c. It may well be that these policy reasons are not fully applicable to the seller of a used chattel for example, the buyer cannot be said to expect the same quality and durability in a used car as in a new one and so the used car dealer should not be held to the same strict liability as the seller of new automobiles. We need not reach that broad question here, for we are of the view that a used car dealer ought to be subject to strict liability in tort with respect to a mishap resulting from any defective work, repairs or replacements he has done or made on the vehicle before the sale and we so hold. That in essence is the instant case, at least as it was set forth in the pleadings as a "defect" case. [at 344-345; emphasis supplied]
The germinal statement of the rule of strict liability in tort is found in the Restatement, Torts 2d, § 402A, although the New Jersey courts have expanded the rule beyond these limits:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold * * *
As the Supreme Court in Realmuto noted, quoting from 2 Frumer and Friedman, Products Liability, § 16A[4][b][iv], at 3-282 to 3-283, no case in New Jersey has yet applied the rules of strict liability in tort to the seller of a used product. Both the Supreme Court and the authors of the text note that the strict liability rules have been applied in Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 451-453 (1965), where a defect in a leased motor vehicle was held to be a sufficient basis for applying the rule of strict liability in tort. In New Jersey it appears that the Cintrone case and the recent Realmuto case are the closest that our courts have come to applying this rule to a seller of a used chattel.
*287 Nationally, the cases are collected in Annotation, "Products Liability Used Products," 53 A.L.R.3d 337 (1973).
* * * [C]ourts may consider as a liability-limiting factor the requirement that the used product be unreasonably dangerous, by applying the test of whether an ordinary purchaser of the particular product, considering its age and condition, would regard it as unreasonably dangerous when sold. [Comment at 340]
In Pennsylvania, for example, plaintiff buyer purchased a ten-year-old car from a dealer. Within 15 minutes after leaving the dealer's place of business in the car, brake failure caused an accident in which plaintiff sustained injury. As plaintiff had not altered the condition of the car since taking delivery, a good cause of action was found under § 402A of the Restatement. Lewis v. E.F. Moore, Inc., 87 Montg. Cty. L.R. 379 (Pa. 1967). A similar cause of action went to the jury in Grady v. Kenny Ross Chevrolet Co., 332 F. Supp. 689 (D.C. Pa. 1971), applying Pennsylvania law where plaintiff's decedent had died of carbon monoxide poisoning allegedly resulting from a defective tail pipe assembly in a used car purchased from defendant dealer. But see Cornelius v. Bay Motors, Inc., 258 Or. 564, 484 P.2d 299 (Sup. Ct. 1971), wherein the court expressly reserved ruling on whether strict liability under § 402A applied to sellers of used cars, while upholding a jury verdict for defendant dealer who had sold a seven-year-old car whose brakes failed on the day of purchase. The concurring opinion in that case suggests that a used-car dealer should not be regarded as making any implied representations since that is not the expectation or understanding of either the buyer or seller in such a transaction. See also, Ikerd v. Lapworth, 435 F.2d 197 (7 Cir.1970), in which strict tort liability was held inapplicable to a new car dealer who sold a car to a used-car dealer, who thereafter sold it to the injured plaintiff, because the first dealer had sold the car along with several others, all "as is," and was found to have relied upon the second dealer to inspect and *288 discover any defects before resale to third parties. In dictum the court noted:
Plaintiffs cite numerous cases in which automobile manufacturers and dealers have been held liable for injuries resulting from the sale of an automobile in a defective condition to a consumer-customer. They conclude from these cases that the seller of a used-car is negligent, or accountable under the doctrine of strict product liability if he sells the used car in a defective condition to one who he should know will use or resell it without first remedying the defect * * *. [at 201]
This court must therefore come to grips with the underlying policy considerations and determine what should be the rule when applied to the case at bar. Three questions appear relevant: (1) In a sale of used goods, should the seller be held strictly liable in tort for defects, unknown at time of sale, that affect the safety (as opposed to economic value of the bargain) of ordinary buyers (and third persons)? Expressed in terms of the Restatement, are safety defects, by their very nature, unreasonably dangerous to ordinary consumers? (2) If so, should an "as is" disclaimer effectively insulate the seller of used goods from such liability to buyers (and third persons) by transferring the burden of all risks to the buyer? (3) If not, should such a disclaimer effectively insulate the seller of used goods from strict liability where the particular buyer was knowledgeable and in as good a position as the seller (or better) to guard against all risks of the product? That is, as to this buyer, was the product unreasonably dangerous?
We will first consider whether this is the type of case for the application of strict liability in tort. An economic analysis of enterprise liability, which includes direct as well as indirect costs, would charge those in the business of selling a defective product with responsibility for all harms, physical and economic, which result from its use. Baxter, "The SST: From Watts to Harlem in Two Hours," 21 Stanf. L. Rev. 1 (1968); Coase, "The Problem of Social Cost," 3 J. Law & Econ. 1 (1960). To a considerable extent with respect to *289 new goods the manufacturer bases the cost of his product on his expenses, which include damages caused by the product and insurance to cover those damages. This cost is spread among all the customers for that product; it reflects the justifiable expectations of customers regarding safety, quality and durability of new goods. Sellers of used goods may similarly distribute their costs of doing business which, in turn, will reflect what is considered by the public to be justifiable expectations regarding safety, quality and durability of used goods.
As suggested by the court in Realmuto and the A.L.R. annotations, realistic expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price.
However, safety of the general public demands that when a used motor vehicle, for example, is sold for use as a serviceable motor vehicle (and not as junk parts), absent special circumstances, the seller be responsible for safety defects whether known or unknown at time of sale, present while the machine was under his control. Otherwise, the buyer and the general public are bearing the enterprise liability stemming from introduction of the dangerously defective used vehicle onto the public highways. Public policy demands that the buyer receive a used chattel safe for the purpose intended (where no substantial change will occur prior to reaching the buyer or foreseeable consumer). See discussion in 2 Frumer & Friedman, Products Liability, supra:
* * * It is conceded that a buyer of a used car, for example, cannot expect it to last as long as a new one. But it can be argued that he is entitled to expect that there is no latent defect in the brakes or other parts of the car. [§ 19.03[5] at 5-129]
Justifiable expectations for safety run to ordinary parts expected to receive regular maintenance and replacement, e.g., brake shoes and linings, steering linkage, exhaust system, etc. On the other hand, surface dents, rust or metal fatigue resulting from mere old age would be defects the *290 risk of which a buyer reasonably may be expected to absorb without undue threat to the public at large.
It is also significant in this case that the safety defect seemingly had nothing particular to do with the truck qua motor vehicle. Unlike virtually all of the cases dealing with the topic of dealer liability for used motor vehicles, this defect did not involve the ordinary use of the truck insofar as its operation on the highway was concerned. The "defect," if any, in the cab latch was collateral; it could just as well have been a defective latch on an overhead garage door or a piece of stationary machinery. Cf. Rodrigues v. Elizabeth-town Gas Co., 104 N.J. Super. 436, 445-446 (App. Div. 1969). It is clear, therefore, that this is an "ordinary" product liability problem, not affected by theories of motor vehicles as "dangerous instrumentalities," and special only in that it deals with reasonable expectations of buyers of used goods.
That there is room for further definition of the "unreasonably dangerous" standard of the Restatement rule, and of its application to used products in our society (which increasingly sets a premium on recyclability of resources) is demonstrated by the A.L.R. annotation comment quoted earlier (53 A.L.R.3d at 340), as well as by further discussions in recent New Jersey and out-of-state products liability opinions. This very language, however, has been questioned by the New Jersey Supreme Court in its recently rendered opinion in Brody v. Overlook Hospital, 66 N.J. 448 (1975). There, the Appellate Division had held that defendants were under an obligation only to use due care and "were not accountable under a theory of strict liability in tort" for supplying blood infected with viral hepatitis. The Appellate Division determined that Restatement § 402A governed the case, but that it had not been shown that the product (blood) was "unreasonably dangerous." Brody v. Overlook Hospital, 127 N.J. Super. 331, 339 (1974), aff'd 66 N.J. 448 (1975). The Supreme Court (at 451), however, added the following language to its affirmance:
*291 * * * but for present purposes we need not consider whether its requirement of a showing that the product was "unreasonably dangerous" is to be deemed generally applicable in other contexts. Cf. Glass v. Ford Motor Co., 123 N.J. Super. 599 (Law Div. 1973); Cronin v. J.B.E. Olson Corporation, 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153 (1972); Note, 5 Seton Hall L. Rev. 152 (1973).
The cited Glass case had held that a requirement that the product be shown "unreasonably dangerous" had no role in the common law concept of strict liability in tort. Moreover, in quoting from the Cronin case (cited by the Supreme Court), the court in Glass found that an "unreasonably dangerous" qualification burdens "the injured plaintiff with proof of an element which rings of negligence," and this would influence a jury "to employ the `reasonable man' standard and arrive at a conclusion that an `ordinary consumer' either would, or would not have expected the defective condition of the particular product," (emphasis in original). This court agrees that if such were the sole function of the "unreasonably dangerous" qualification, it serves no useful purpose. But, there are different and necessary functions for this qualification prerequisite for a finding of strict liability in tort for sale of used products.
The Restatement rule without the "unreasonably dangerous" qualification has been criticized as creating a trial situation "too imprecise for judicial application." 5 Seton Hall L. Rev. 152, 166 (1973). Even the Cronin court noted that the "unreasonably dangerous" standard appears in two places in the Restatement rule, first where it is quoted above, and again in its definition of what is a "defective condition." 104 Cal. Rptr. at 441, 501 P.2d at 1161. The Restatement, comment (g), states that such is a condition "not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." It is only where there is an unreasonable danger of personal injury in the defective product that recovery can be founded on the rule of strict liability in tort, and this should be especially so when dealing with used goods. Only by this word "unreasonable" is the court or *292 jury permitted an inquiry into the nature of the product, its age and condition, and thus able to set a standard against which the defect can be measured.
Should a simple "as is" disclaimer effectively insulate the dealer from a claim of strict liability in tort following an accident resulting from a safety defect present in the vehicle when it was in the control of the dealer? When selling to the ordinary consumer, the answer must be No. Bargaining power and ability to protect one's interests are generally disproportionate as between the buyer of used goods and one in the business of selling them. While freedom to contract need not be impaired if a buyer wishes to contract away his right to protection, an unequivocal waiver of safety defects must be shown (see the discussion with respect to waiver of tort claims under section III of this opinion, infra). Otherwise, when the additional indirect costs will be borne by the public through insurance costs, a decent regard for the public safety requires the thumb of the State to be on the buyer's side of the scale. Cf. Henningsen v. Bloomfield Motors, 32 N.J. 358 (1960).
The third question also raises a jury issue. It may be found that the buyer in this case was (or represented himself to be) knowledgeable about this product because of his background or experience. This will not necessarily result from the transaction being denominated "commercial" see Monsanto Co. v. Alden Leeds, 130 N.J. Super. 245 (Law Div. 1974). Also, the effect upon plaintiff and her family, and upon injured persons in general, is no less because the injury occurred in a nonconsumer atmosphere. In fact, the pleadings and affidavits submitted here suggest that plaintiff's decedent may have been personally familiar with the particular truck he bought. The goods should be viewed, not in the abstract, but as they affect a particular seller, purchaser or user, and the circumstances of the sale.
Use of the "unreasonably dangerous" standard, whether viewed from the general statement of the rule or the definition of a dangerous condition, permits a court to *293 look both at the sophistication of the injured purchaser and the reasonable expectations of the seller to determine whether the strict liability rule should be applied.
Looking at the used automobile situation, one can readily envision an antique car buff or "hot rod" enthusiast purchasing a car which is defective in many respects and where the relationship between the buyer and seller is such that both reasonably expect that all aspects of the automobile will be separately appraised and all defects corrected by the purchaser. In this connection see Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 27 Cal. Rptr. 697, 700, 377 P.2d 897, 900, 700 (Sup. Ct. 1963), in which Justice Traynor stated that a manufacturer "is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being."
Even with respect to the sale of a truck, the actual situation of the parties to the contract may present a question. A used truck purchased by a large trucking company known by both buyer and seller to have extensive repair facilities might be expected to undergo great scrutiny only by the buyer, while a similar truck purchased by a merchant to make his retail deliveries might not reasonably be expected to be so examined unless special circumstances exist. Thus, in some circumstances the relationship of the parties and apparent sophistication of the purchaser might indicate that the defect did not present an unreasonable danger to the particular purchaser as user of the product. In others the purchaser's conduct in not discovering or correcting a defect which a reasonable person of his background and experience should have corrected might warrant a finding that the defect was not unreasonably dangerous. (These latter aspects of the "unreasonable" danger qualification, however, should be treated within the area of contributory negligence, which in the appropriate case may be a defense to a claim of strict liability. Cintrone v. Hertz Truck Leasing & Rental Service, supra, 45 N.J. at 457-459; Bexiga v. Havir Mfg. *294 Corp., 60 N.J. 402 (1972); Restatement, Torts 2d, § 402A, Comment (n) at 356.) Thus, in these unusual cases the "unreasonably dangerous" qualification has a very practical use in stating the rule for strict liability in tort. With this "unreasonably dangerous" element intact, the Restatement rule is as applicable to the sale of a used product as to the sale of a new product. The failure of the Supreme Court to use the "unreasonably dangerous" standard in its statements of the rule of strict liability in tort (e.g., Scanlon v. General Motors Corp., 65 N.J. 582, 590 (1974)), should not be taken as a negation of its usefulness in the appropriate case.
On the record before this court, defendant dealer has not shown that special circumstances of this sale constituted either an express or implied waiver of this buyer's reasonable expectations regarding the absence of safety defects. Thus, summary judgment must be denied on the strict liability claim.
III
With respect to the claim for negligence, the court in Realmuto v. Straub Motors, supra, set forth the standards to be applied:
There is no doubt of the applicability of the negligence theory; a used car dealer has the duty of reasonable inspection, testing and warning of any defects, as well as that of reasonable care with respect to any repairs or replacements he may make to the vehicle. [65 N.J. at 344, n. 3; emphasis supplied]
An annotation, 6 A.L.R.3d 12, § 10 at 43-47, deals with this matter also, commenting that:
* * * [a] seller of a used or secondhand product especially, but not exclusively, a motor vehicle has often been held to have a duty to test or inspect it, and to be liable for injuries resulting from the omission of proper tests or inspections.
A current model, low-mileage automobile purchased by a consumer from a dealer in such automobiles is subject to *295 nearly all of the expectations on the part of the public as is a new motor vehicle purchased under similar circumstances. As the vehicle's age increases, however, such expectations will tend to decrease. So, too, with other products. This is true especially where the sale of motor vehicles is concerned, considering the tremendous volume of sales evidenced by even the most casual perusal of the used car sections of a newspaper. It has been informally estimated that for every new car purchased in this country, five are traded used. "King of the Iron Merchants," New York Times Magazine, March 2, 1975, p. 12 at 33. To preclude recovery merely because of the used nature of a product would, therefore, be to defeat the interests of the public. A dealer in used trucks is subject to similar expectations. Of course, there are additional elements that must be proven in the negligence claim that need not be proven under the strict liability in tort cause of action described above, but a cause of action has been stated in the complaint.
The "as is" notation, however, adds an additional element to the negligence aspects of this case. In Monsanto Co. v. Alden Leeds, supra, 130 N.J. Super. at 254, this court held that disclaimers of warranties, if not unconscionable, may be enforced in commercial settings. Here, there is no allegation of unconscionability. In section I of this opinion the warranty disclaimer has been held to have its statutory effect. In section II, it was noted that an unequivocal waiver was necessary to defeat a claim of strict liability in tort. But, does a disclaimer of statutory warranties also act as a waiver of both tort claims in strict liability and negligence? Without any language of waiver, and without any evidence before this court that the "as is" language was meant to serve as an intentional relinquishment of a known right, such effect will not be implied. Cf. Gindy Mfg. Corp. v. Cardinale Trucking Corp., 111 N.J. Super. 383 (Law Div. 1970), where the clause was found not to have even its statutory effect of removing warranties under the peculiar facts of that case.
*296 This determination, however, does not fully answer the question of the effect of the "as is" statement, for it will have a very real evidentiary effect at the trial. What conditions did the "as is" designation disclaim? A jury must eventually determine what was reasonable with respect to any proven danger present in a product sold "as is." Did the parties understand that the "as is" designation applied only to body damage, gas mileage, worn tires or other such problems that could be discerned by a reasonable inspection or test drive? Was it limited to performance rather than safety defects? Was the designation intended to cover all defects? See, for example, Chamberlain v. Bob Matick Chevrolet, Inc., 4 Conn. Cir. 685, 239 A.2d 42 (Cir. Ct. 1967); Varkell v. United States, 334 F.2d 653, 167 Ct. Cl. 522 (Ct. Cl. 1964); Mulder v. Casho, 61 Cal.2d 633, 39 Cal. Rptr. 705, 394 P.2d 545 (Sup. Ct. 1964); Hembree v. Southard, 339 P.2d 771 (Okl. Sup. Ct. 1959); Armour v. Haskins, 275 S.W.2d 580 (Ky. Ct. App. 1955); Byrd v. Harry Sommers, Inc., 87 Ga. App. 663, 75 S.E.2d 287 (Ct. App. 1953); Gaidry Motors, Inc. v. Brannon, 268 S.W.2d 627 (Ky. Ct. App. 1953); and cf. Benton v. Sloss, 38 Cal.2d 399, 240 P.2d 575 (Sup. Ct. 1952), referring to California statutory requirements that a used car dealer inspect brakes before resale.
Defendant Hall & Fuhs, Inc. alleges that the cause of the accident was a design defect, and thus is the responsibility of the manufacturer. Whether this is so and whether a reasonable inspection, testing or warning of the defect had or had not been accomplished is not now before the court, but as a matter of law, from the affidavits and supporting documents, this court cannot say that the defendant dealer is free from negligence.
Plaintiff's attorney should present an order denying summary judgment on the issues of strict liability in tort and negligence, and granting summary judgment on the issue of breach of warranty, pursuant to R. 4:42-1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204026/ | 888 N.E.2d 875 (2008)
BREDEMEIER
v.
STATE.
No. 26A05-0712-CR-685.
Court of Appeals of Indiana.
June 11, 2008.
BARNES, J.
Disposition of case by unpublished memorandum decision. Affirmed.
CRONE, J. Concurs.
BRADFORD, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265153/ | 422 Pa. Super. 584 (1993)
619 A.2d 1378
COMMONWEALTH of Pennsylvania
v.
Charles A. MANCE, Appellant.
Superior Court of Pennsylvania.
Argued October 14, 1992.
Filed February 17, 1993.
*586 Paul D. Boas, Pittsburgh, for appellant.
Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
Before TAMILIA, JOHNSON and HESTER, JJ.
*587 JOHNSON, Judge:
In this appeal we are asked to further define when police conduct during a reverse sting operation becomes so outrageous as to violate due process. A reverse sting is an undercover operation in which the government agents pretend to be selling (rather than as is the more usual case, buying) illicit drugs from the soon-to-be defendants. United States v. Ruiz, 927 F.2d 139 (3d Cir.1991). It is a recognized investigative tool used in law enforcement against middle-level illicit drug dealers.
Charles A. Mance appeals from the judgment of sentence following his jury convictions for criminal solicitation, 18 Pa. C.S. § 902(a), and criminal attempt, 18 Pa.C.S. § 901(a), which resulted from a reverse sting operation in which undercover law enforcement officers purported to sell him one hundred (100) pounds of marijuana. Mance was sentenced to a term of five years' probation and costs.
Mance maintains that: (1) he was entrapped as a matter of law; (2) police conduct was so outrageous it constituted a violation of due process; and, (3) he was prejudiced by the admission of irrelevant testimony concerning the drug trafficking business. Because Mance raises no claim of merit, we affirm.
Mance was telephoned in late December, 1987, or early January, 1988, by an acquaintance, Rocco Scarfone, who had become a paid informer for Detective Steven Medley, an undercover narcotics officer for the Fort Lauderdale, Florida, police. Scarfone testified that during the first telephone conversation, Mance asked him whether he knew if any marijuana was available. While Scarfone told Mance that he would see if any marijuana was available, in actuality, he reported the inquiry to Medley. Medley instructed Scarfone what Mance should be told when Scarfone called Mance back.
Scarfone testified that he had one or two additional telephone conversations with Mance before establishing a three-way telephone conversation with Medley, who pretended to be the seller of the marijuana. It is undisputed that the initial *588 calls between Scarfone and Mance were not recorded. There were three telephone conversations, secretly recorded, between Scarfone, Mance, and Medley. These three-way conversations disclose Mance negotiating the sale and delivery of the 100 pounds of marijuana for $50,000. Mance also agreed to fly to the Charlotte, North Carolina, airport to sample the marijuana he was buying, and to give Medley $1000 in expense money, with delivery of the 100 pounds to be made later in Pittsburgh.
The meeting at the Charlotte airport, also secretly recorded, occurred as planned. Two days later Scarfone, accompanied by various law enforcement agents, came to Pittsburgh and met with Detective William Joyce of the narcotics section of the Pittsburgh Police. Joyce became the team leader for the finale. Ostensibly arranging for the delivery of the marijuana, Scarfone, in another recorded conversation, called Mance at his home and told him where Mance could meet Scarfone and the driver (actually an undercover agent) to complete the deal. Mance came to the designated meeting spot, displayed the money, and after the government agent agreed to exchange the marijuana at Mance's house, Mance was arrested.
Mance testified that when he had first met Scarfone a number of years earlier, Scarfone bragged about his connections with organized crime and ability to supply illicit drugs. According to Mance, Scarfone had pressured him into buying some cocaine after Scarfone had provided Mance with a discounted hotel room and rental car in Florida. Through the ensuing years, Mance secured a college degree, obtained a good job with Westinghouse Electric Corporation, got married and had children. Mance claimed that Scarfone had called him some eight or ten times, starting in October, 1987. Mance testified that when Scarfone telephoned him toward the end of 1987, he told Mance that he was in financial trouble because he couldn't pay the money he owed to some "big people," who were threatening him. If Mance could help Scarfone sell their marijuana, it would reduce Scarfone's debt. Mance asserted that he agreed to purchase the marijuana in order to help Scarfone.
*589 Initially, Mance contends that he was entrapped as a matter of law. Entrapment is defined as:
(a) General rule. A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purposes of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof. Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment. . .
18 Pa.C.S. § 313.
The entrapment statute "places the burden of proof on the defendant and applies an objective test with regard to police conduct." Commonwealth v. Dukeman, 413 Pa.Super. 397, 408, 605 A.2d 418, 423 (1992). Once a defendant has properly established the defense of entrapment, "the trial court should determine the question as a matter of law wherever there is no dispute as to the operative facts relating to the defense." Commonwealth v. Thompson, 335 Pa.Super. 332, 341, 484 A.2d 159, 164 (1984).
In Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), alloc. denied, 526 Pa. 648, 585 A.2d 468 (1991), we set forth the standard for determining whether entrapment as a matter of law exists, stating:
Whether an "entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law."
* * * * * *
*590 Moreover, where there is conflicting testimony on the subject of inducement, the matter is properly left for the jury to resolve.
Id., 396 Pa.Super. at 288-289, 578 A.2d at 519-520 (citations omitted). See also Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989).
After a thorough review of the record, we conclude that Mance's argument is without merit. The testimony of the informant, Scarfone, and the testimony of Mance is in sharp conflict on the matter of whether Mance voluntarily entered into the illicit drug transaction or whether the illicit drug transaction was improperly induced by Scarfone. Scarfone's testimony was that he contacted Mance because he knew that Mance had been involved in purchasing marijuana in the past (which Mance had denied). Scarfone also testified that during his initial conversation with Mance, Mance asked Scarfone whether any marijuana was available. Moreover, the recorded conversations vividly portray Mance as an experienced marijuana dealer attempting to negotiate the sale and delivery of 100 pounds of marijuana. Detective Medley's testimony supported Scarfone's version of the deal. Mance testified that Scarfone first started calling him in late October, 1987, and called him somewhere between eight and ten times before the first recorded telephone call with Medley. Mance contends that he was induced to purchase the marijuana by Scarfone's plea for assistance in paying off the debt Scarfone owed to some "big people." Mance claimed that Scarfone coached him in what to say before the recorded telephone conversations with Medley.
Thus, the issue is whether Mance was induced to participate in the scheme. Where there is conflicting testimony on the subject of inducement, there is not, and cannot be, entrapment as a matter of law. The conflict is for the jury to resolve. Wright, supra. The judge properly denied Mance's motion on the basis of entrapment as a matter of law.
Next, Mance claims that the government's conduct in this case was so outrageous that it violated due process. We conclude that the facts do not support this claim.
*591 "The question whether government conduct has been so outrageous as to constitute a violation of due process is a question of law to be determined by the court, not the jury." Commonwealth v. Benchino, 399 Pa.Super. 521, 526, 582 A.2d 1067, 1069 (1990) (citations omitted). Only in the rarest and most outrageous circumstances will government conduct in a criminal investigation be found to violate due process. Id. at 527, 582 A.2d at 1069.
Before the conduct of law enforcement officials or government agents will be found to have violated due process, however, it must be shown that police conduct was "so grossly shocking and so outrageous as to violate the universal sense of justice." The establishment of a due process violation "generally requires `proof of government overinvolvement in the charged crime and proof of the defendant's mere passive connection to the government orchestrated and implemented criminal activity.'" Moreover, for due process to bar a conviction, the government's involvement in the commission of the crime "must be malum in se or amount to engineering and direction of the criminal enterprise from beginning to end."
Id. (citations omitted) (emphasis in original).
This case is similar to Benchino. Benchino involved a reverse sting in which the defendant claimed that his due process rights were violated because he had been implicitly threatened by the Commonwealth's informant, to whom he owed a drug-related debt. The defendant alleged that these threats caused him to purchase drugs from an undercover narcotics agent. This court rejected Benchino's claim.
"[T]he mere fact that an investigation has begun without probable cause or reasonable suspicion does not violate due process." Id. at 527, 582 A.2d at 1070. The government does not violate due process simply by employing an undercover or reverse sting operation, or because its agents supply ingredients for commission of a crime or contraband to a defendant. Id. at 528, 582 A.2d at 1070.
*592 Providing Mance with a sample of the marijuana did not offend due process. See Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988), alloc. denied, 520 Pa. 595, 552 A.2d 250; Benchino, supra. Due process is not offended because the investigation began without probable cause or reasonable suspicion, nor is due process offended because it was a reverse sting operation conducted by the police. Benchino, supra. Moreover, Mance was not improperly induced to purchase illicit drugs even if the police gave Mance the opportunity to make a substantial profit on the transaction by offering the marijuana at $500 per pound, delivered to Pittsburgh, when marijuana was then selling in Pittsburgh on the street at $1200 to $1500 per pound. Benchino, 399 Pa.Super. at 525, n. 2, 582 A.2d at 1069, n. 2.
We cannot conclude that the police conduct with respect to informant Scarfone was so grossly shocking and outrageous as to violate the universal sense of justice. There is no due process violation merely because an informant receives money for cooperating in a reverse sting, even if the compensation was on a contingent basis. Id. at 529, 582 A.2d at 1071. Scarfone's financial interest here, the $1,500 he was subsequently paid by various law enforcement agencies, was simply a matter to be considered by the jury in determining his credibility. Ruiz, supra. Furthermore, we cannot conclude from the record that the government purposefully failed to preserve evidence by not recording the initial telephone conversations between Scarfone and Mance, as Mance infers. Rather than amounting to outrageous conduct, such an act would, at best, strengthen a defendant's claim that he was entrapped. United States v. Olson, 978 F.2d 1472, 1482 (7th Cir.1992). We observe that the jury was properly charged on entrapment, and weighed this evidence in reaching its determination that Mance had not been entrapped. We also note that at trial the government had provided an adequate explanation of the failure to record the initial telephone calls between Mance and Scarfone. "Mere negligence cannot serve as the predicate for government misconduct." Id.
*593 The most that can be said of Scarfone's involvement is that he was an intermediary between the police and Mance. According to Mance's own testimony, Scarfone was just an acquaintance, a braggart boasting of his mob and drug connections, who had pressured Mance into buying cocaine from him a number of years earlier after he had provided Mance with a discounted hotel room and rental car in Florida. Viewed in its entirety, we do not find this to be coercive police conduct. See Commonwealth v. Timer, 415 Pa.Super. 376, 609 A.2d 572 (1992).
Scarfone's actions were part of the ordinary tactics in narcotics trafficking, and were necessary to maintain a credible cover. Benchino, 399 Pa.Super. at 529, 582 A.2d at 1070-1071. We are constrained to conclude that Mance was simply contacted and afforded the opportunity to commit the crime. Here, we cannot find the level of police overinvolvement which constitutes a violation of due process.
Finally, Mance contends that the trial court erred in admitting Detective Medley's testimony regarding the drug trafficking trade. We conclude that Mance's claim that this testimony was prejudicial and irrelevant is also without merit.
Matters relating to the admissibility of evidence are within the sound discretion of the trial court, and an appellate court will not reverse the trial court's ruling absent a clear abuse of discretion. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985); Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982). This court has said that an abuse of discretion can be found if it appears that the trial judge admitted irrelevant evidence that was prejudicial to the accused or evidence the probative value of which was outweighed by its prejudicial impact or its tendency to suggest a decision on an improper basis. Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1248 (1984); see also Commonwealth v. Day, 399 Pa.Super. 399, 582 A.2d 655 (1990). Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue, or it in some degree advances the inquiry and *594 thus has probative value. Shain, 324 Pa.Super. at 462-463, 471 A.2d at 1249. Thus, we must evaluate the relevance of the evidence admitted by the trial court's rulings and then weigh relevancy and probative value against prejudicial impact.
The record reveals that Mance failed to object to Medley's initial reference to South Florida as the hub through which marijuana is imported into the United States. Mance did, however, object to Medley's explanation of a typical illicit drug distribution chain. Mance argued then, as now, that the evidence was irrelevant because no marijuana actually existed. Mance also contends that there was an unspoken inference that this evidence somehow connected him to Manual Noriega and the invasion of Panama.
We find both arguments meritless. The evidence was inherently relevant to the jury's understanding of the facts of this case, as the prosecutor aptly noted at sidebar following Mance's objection. Mance was buying 100 pounds of commercial grade marijuana for $50,000 from a marijuana wholesaler, clearly placing him in the distribution chain. It does not matter that the marijuana did not materialize. A description of the chain of marijuana distribution enabled the jury to understand the role that Detective Medley was playing in the operation, i.e., a bulk marijuana dealer from South Florida negotiating a sale to a new customer/distributor from Pennsylvania. This evidence further clarified the recorded conversations concerning the negotiations for the sale of the marijuana. This evidence is relevant and probative.
While relevant evidence may be inadmissible if it is too prejudicial or would tend to support a jury verdict on an improper basis, neither condition exists here. We conclude that the evidence was properly admitted by the trial court, and find no error.
For all of the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336118/ | 136 S.E.2d 113 (1964)
261 N.C. 692
Lillie L. COATS, Widow, et al.
v.
Peggy L. WILLIAMS, Minor, and husband, Marvin Williams, Christine L. Byrd, Minor, and husband, Bobby Byrd, David Bruce Langdon, a Minor, and Bobby Ray Langdon, Minor.
No. 530.
Supreme Court of North Carolina.
April 29, 1964.
*114 E. V. Wilkins, Smithfield, for petitioner appellants.
Lyon & Lyon, Smithfield, for respondent appellees.
*115 BOBBITT, Justice.
"General rules of pleading as to demurrers ordinarily apply as to the grounds for demurrer to a bill, complaint, or petition for partition." 68 C.J.S. Partition § 97b; 40 Am.Jur., Partition § 71; McIntosh, N.C. Practice and Procedure, § 910(2).
The facts alleged in the petition disclose: Subject to the widow's right of dower, each of the nine children acquired an undivided one-ninth interest in the 18-acre and in the 33.2-acre tracts.
The widow's right of dower is "a fixed and vested right of property in the nature of a chose in actionthe right to demand an assignment of dower." Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 294, 1 S.E.2d 853, 855. Here there has been no assignment of dower to the widow. Unless and until dower is assigned, both tracts, nothing else appearing, are subject to the widow's right of dower. G.S. § 30-5; Harrington v. Harrington, 142 N.C. 517, 55 S.E. 409.
Tenants in common are entitled as a matter of right to partition or to a partition sale if actual partition cannot be made without injury to some of the tenants. Batts v. Gaylord, 253 N.C. 181, 116 S.E.2d 424, and cases cited. Too, a widow, in respect of her right of dower, may join in the petition. G.S. § 46-15; Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86.
The purport of petitioners' allegations seems to be that the widow, on the one hand, and the five children who are petitioners, on the other hand, have entered into an agreement whereby the widow renounces her right of dower in the 18-acre tract in consideration of their conveyance to her of their respective interests in the 33.2-acre tract. The allegations are indefinite, indeed somewhat contradictory, as to the extent, if any, the alleged agreement has been executed. Too, the petition is silent as to the widow's claim and right of dower in respect of the 33.2-acre tract.
The four children who are respondents are not parties to the alleged agreement. Consequently, petitioners may assert against said respondents only rights to which they are entitled under the law.
The petition discloses affirmatively that the sole purpose of the special proceeding is to sell the 18-acre tract and divide the proceeds equally among the nine children. The petition and prayer contemplate no action whatever with reference to the 33.2acre tract.
"The authorities seem to agree that tenants in common cannot, as a matter of right, have partial partition of the lands owned by them, and that when only a part of the land is described in the petition the defendant may allege that there are other lands owned in common and have them included in the order of partition. 30 Cyc., 177; Brown v. Lynch, 21 Am.St., 473; Bigelow v. Littlefield, 83 Am.Dec., 484." Luther v. Luther, 157 N.C. 499, 73 S.E. 102; see also, 40 Am.Jur., Partition § 32; 68 C.J.S. Partition § 55b (1).
Here, the petition discloses that parties to this proceeding are the owners of the two tracts. Even so, under petitioners' allegations the facts as to the respective interests of the parties in each tract are unclear. Suffice to say, the facts alleged are insufficient to show that petitioners are entitled to a partition sale of the 18-acre tract. In the absence of all relevant facts, we deem it inappropriate to discuss the extent, if any, ultimate decision may be based upon Luther v. Luther, supra.
The judgment of Judge Phillips sustained the demurrer of respondents Williams but did not dismiss the proceeding. Petitioners were granted leave to amend. In our view, this judgment was correct and is affirmed.
*116 Since the record does not show the appointment of a guardian ad litem for respondent Peggy L. Williams, we assume she was of age when the demurrer was filed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336107/ | 109 Ga. App. 301 (1964)
136 S.E.2d 179
MOREHOUSE COLLEGE et al.
v.
RUSSELL.
40221.
Court of Appeals of Georgia.
Decided March 11, 1964.
Sam F. Lowe, Jr., Smith, Field, Ringel, Martin & Carr, for plaintiffs in error.
Houston White, Beryl H. Weiner, John E. Hogg, contra.
PANNELL, Judge.
Eva Lou Russell brought an action in the Superior Court of Fulton County, Georgia, against Morehouse College, a corporation, certain named trustees thereof, and James Edward Haines, individually, seeking to recover for the full value of the life of her son, Arlee Russell, Jr., who came to *302 his death by drowning in the swimming pool owned and operated by the defendant college, and its trustees because of the alleged negligence of the defendants. After various allegations relating to the charter of the defendant corporation and the power and authority of the trustees, the petition alleged:
"That pursuant to their powers contained in said charter, said defendant trustees in office during the calendar year 1959 maintained and operated the school known as Morehouse College, having four scholastic years of collegiate study. In said college said trustees establish various departments of study and student activity, such as the department of arts, economics and business administration, education and psychology, history and political sciences, mathematics, modern foreign languages, music, physical education, religion and sciences.
"That said board in behalf of defendant corporation also employed at salaries fixed by it, various officers, professors, instructors and teachers, for said school, and placed professors, instructors and teachers in charge of the various departments and the courses of instruction within said departments, and outlined, approved, and directed not only said instruction personnel but also the technique and methods of instruction for each of said courses.
"That defendant trustees employed James Edward Haines as professor of physical education, and placed him in charge of instruction of swimming for said freshman class, including said son. One of the courses directed by said trustees to be taught by said Haines was known as physical education course No. 151, denominated `Station No. 1. Aquatics,' which was required of all freshmen unskilled in swimming or who could not swim. Under the terms of his employment, it was Haines' duty to supervise and direct personally at all times the activities of said student members of said class while the members thereof were using said pool for class or instruction purposes. Said trustees employed as Haines' assistant instructors in said class No. 151 for the fall semester of 1959 a student in the Senior Class in said college, named Robert Carver Murphy, and a student in the Junior Class in said college, named Robert Edward Blount. Each of said students was a member of the *303 swimming team of said college, and had passed the senior life-saving course of the American National Red Cross on May 7, 1958. Neither of said students had sufficient training and experience as an instructor for said class of beginning or freshman students in that such instruction required experience and training in simultaneously watching for and guarding the safety of groups, and each member thereof, while at the same time giving instruction to the members of said group. Said students had not had sufficient training to teach and assure the safety of each member of said class at the same time. Neither of said student assistants had passed the water safety instructor course of the American National Red Cross.
"Said class No. 151 was to be held and was held in the gymnasium on the campus of defendant college. Said pool was 42 feet wide and 75 feet long. At one end said pool was shallow and of a depth varying from three to five feet for a distance of approximately twenty feet from said shallow end, and at the other end said pool was deep in that for at least twenty feet from said deep end said pool was at least twelve feet deep. There were two diving boards, one approximately ten feet above the surface of the water and the other approximately three feet above the surface of the water. Said ten feet diving board was in the middle of said deep end, and looking at said deep end from the shallow end said three foot board was on the right of said ten foot board in approximately the middle of said right side of said deep end. Said swimming pool was indoors, and was illuminated with daylight and electric lights. Experienced instructors in the exercise of ordinary care should and could have seen the body of any of said students on the floor of said swimming pool at all times, as hereinafter alleged.
"That petitioner's said son graduated from A. H. Parker High School, in Birmingham, Alabama, on May 28, 1959, applied for and on his merits won and was granted by the committee on scholarships of defendant corporation a tuition scholarship at Morehouse College for the school year 1959-1960 in the amount of three hundred and twenty-five ($325) dollars, payable $162.50 for the 1959 fall semester and $162.50 for the spring semester.
*304 "That on September 7, 1959, petitioner's said son entered the defendant Morehouse College as a freshman student in the premedical course for the degree of Bachelor of Science. Petitioner's said son on September 9, 1959 paid all entrance fees for the fall semester of 1959 required by defendant corporation and said trustees, in the amounts of $162.50 for tuition, and $119.50 as the balance of fees due, and deposited $40.00 with defendant corporation in payment of his school books. On April 1, 1959, said son had paid $25.00 to defendant corporation as part payment on said entrance fees. Of said sums paid, said $162.50 resulted from said scholarship.
"As a result of said payments set forth in the prior paragraph, petitioner's said son became a paying and paid-up freshman student in defendant college for the fall semester, commencing on September 14, 1959. Said son was also present as a member of said freshman class during the week of September 7-13, 1959, a period denominated as freshman week. As a freshman, said son was required to take the course known as physical education course No. 151, Station 1 in said course in aquatics or swimming, the first class in which was to take place on said Wednesday, September 23, 1959.
"That on September 23, 1959, said son reported for said swimming class No. 151 at said designated time in his swimming trunks at said swimming pool. At said time, said Haines, Murphy and Blount, were present for the purpose of instructing said class and safeguarding the lives of the members of said class during the course of said instruction. Haines was the only competent and experienced instructor in swimming present at any time during said class, and he was present only as hereinafter alleged.
"That at the beginning of said class Haines called the roll of said class, and introduced Murphy and Blount to said class. Haines told said class that Murphy and Blount were members of the swimming team, and would instruct said class on said date, and that each member of the class should know them, and should do whatever Murphy and Blount told them to do, and that no member of the class should take advantage of them simply because they were students. There were approximately *305 fifteen members of said beginner class. Haines then directed said class to divide into two groups, the first group so directed being those who could not swim at all and the second group so directed being those who could swim. Said son separated himself into the group who could swim, and remained with said group. Said son was a beginner in swimming, and could swim only a short distance, and had never swum in a line with other swimmers swimming along with him. Said son had never received instructions in the proper use of his hands and feet and the proper method of breathing while swimming, and when he swam, he struggled to keep afloat, and did so with a great deal of difficulty.
"At approximately 3:00 o'clock P.M., said group who had segregated themselves from the other members of the class as being able to swim, consisting of nine or ten students, including said son, were told by said Murphy to line up across the end of the pool at the deep end thereof, and to swim from said deep end to said shallow end, and directed each of said group to get in the water and swim to the shallow end at the same time.
"Petitioner's said son lined up on the left side of said deep end facing the shallow end, and entered the water with said other students for the purpose of swimming to the shallow end, swam approximately ten feet in the direction of the shallow end, sank to the bottom and drowned. Petitioner charges that while said son was sinking and after he sank to the bottom, the fact of his sinking and the fact that his body was on the bottom of said pool should and would have been seen by a trained and experienced swimming instructor and that he would have been rescued by said instructor if said instructor had been present and watching from the proper location on the side of said pool while said group was swimming from said deep end to the shallow end of said pool, and that at least one of two trained and experienced instructors would have seen his sinking and his body on the bottom of said pool and rescued him, if at least two trained and experienced instructors had been in charge of said class at said time.
"While said class was separating into said two groups, and *306 before said group containing said son was directed by said Murphy to enter the water and swim to the shallow end of said pool, said Haines left said swimming pool room and went to another part of said building, which petitioner charges was his office. At the time Murphy gave said instructions to said group lined up at the deep end to swim to the shallow end and while said group was so swimming, and said son was drowned, said Haines was not present in the room nor was he watching or guarding said class or group thereof at any other location. At the time said son was drowned there was no trained, experienced and competent instructor in said swimming pool room.
"That after said Haines left said swimming pool room, said Murphy took charge of said group of students including petitioner's son, and first stood at said deep end with said group on the side opposite from where said son was lined up at said deep end to commence said swim to the shallow end. Said other group were receiving instruction from said Blount at the other end of said pool and Blount's attention was being given to his group. Blount was paying no attention to Murphy's said group while its members were swimming from the deep to the shallow end of said pool. Neither Murphy nor Blount saw said son sink to the bottom of said pool. The other members of said group of said class swimming from said deep end to said shallow end succeeded in arriving at the shallow end, where they were met by said Murphy. Said swimmers were directed by said Murphy to get out of said pool, where they remained for a period of from three to five minutes while said Murphy gave said group instructions on how to swim. At the end of said period, said Murphy directed said group to return to the water at the shallow end and to swim back to the deep end. After said group swam back to the deep end one of said swimmers, Albert Brooks, reported to said Murphy that he had seen and thereupon pointed out the body of said son at the bottom of the pool at said deep end. Said Murphy immediately dove in and brought the body of said son out of said water, laid his body by the side of said pool and commenced artificial respiration by manual means, there being no respirator provided by defendant trustees for said purpose. At 3:12 o'clock *307 P.M., some person, unknown to petitioner, telephoned the City of Atlanta Fire Department, which brought an artificial respirator within approximately five minutes after said call was made, used said artificial respirator on said son for approximately ten to fifteen minutes in an effort to resuscitate him, but without success. At approximately 3:32 P.M., a doctor from the Grady Hospital in the City of Atlanta arrived, examined said son and pronounced him dead. At said time said son was dead from drowning. Petitioner charges that said son sank to the bottom of said pool and remained there at least five or six minutes before his body was discovered and taken from said pool by said Murphy. Petitioner charges that if said son had been seen and rescued within two and a half minutes after he sank under said water, he could and would have been revived.
"That at said time and place, and during the entire time said class was in session said Haines, Murphy and Blount were employees of defendant corporation and defendant trustees, and were at all times acting within the scope of their employment.
"Petitioner charges that defendant trustees and defendant corporation, and each of them, in the exercise of ordinary care, were under the duty of prescribing, outlining and specifying a safe method for the use of said swimming pool by the members of said class No. 151, including said son, during the course of said instruction, and said Haines, Murphy and Blount were each under the duty to follow the method or methods so prescribed, outlined, and specified by defendant Board of Trustees. No such safe method of conduct for such instruction was so prescribed, outlined, and specified by said defendant Board of Trustees and said corporation.
"That before directing said group of nine or ten members of said class to enter said water at said deep end to swim to the shallow end, neither said Haines, said Murphy or said Blount had a reasonable knowledge of the ability of said members of said group to swim. Said Haines, Murphy and Blount knew that said class was a beginner class and that said swim, as directed by said Murphy, from the deep to the shallow end, was the first such swimming some of said swimmers, including said *308 son, had ever made in said manner, and that said swim was the first swim some of them, including said son, had ever made in said pool. Neither said Haines, Murphy or Blount had tested the ability to swim of the members of said group at the shallow end of said pool prior to the time said Murphy directed said group to swim from the deep end to the shallow end, and, not knowing their ability to swim, should have, in the exercise of ordinary care provided at least two trained and experienced instructors to watch and guard the members of said group while swimming from said deep end to said shallow end, and should have divided said group into groups of two at the time of said swimming from said deep to said shallow end of said pool so that each of said swimmers could be carefully watched and guarded.
"That said defendant trustees and each of them and said defendant corporation failed to provide a sufficient number of competent and experienced instructors to instruct and guard the safety, during said instruction, of the members of said class including said son; selected and employed as instructors for said class, said Murphy and said Blount who were known to be incompetent for said purpose; failed to prescribe, outline, and specify as a direction to said Haines and his said assistants that each student in said class be first examined in small groups of two or three students or by themselves in order to acquaint said instructors factually with the proficiency in swimming of each class member; failed to prescribe, outline, and specify that while said freshman students in said class No. 151 were assembled and receiving instruction in said class said Haines and at least one other trained, experienced and competent instructor be present at all times while said class was in session; failed to have any prescribed, outlined, or specified directions to guide and direct said Haines and said assistants in conducting said class to assure the safety of each member thereof; failed to provide a swimming pool with adequate safeguards, adequate personnel, and adequate rules for instructing said class safely to prevent the drowning of any member thereof.
"That defendant trustees were negligent in the following particulars: a. In failing to provide a sufficient number of competent *309 and experienced instructors, to instruct and guard the safety during said instruction of the members of said class, including said son. b. In selecting and employing as instructors for the members of said class, including said son, said Murphy and said Blount, who were not competent swimming instructors for said class in that each was without sufficient training and experience as instructors for said class, including petitioner's son, at said time and place, in that each lacked training and experience in observing and safeguarding the personal safety of said class members, including said son, while at the same time instructing each member thereof in swimming. Defendant trustees and defendant corporation in the exercise of ordinary care, should have known of the said incompetency of said Murphy and said Blount as instructors for said class, in that each had been students in said physical education department for at least one year prior thereto, and said Haines knew of their said lack of training and inexperience. c. In failing to prescribe, outline, and specify as a direction to said Haines and his said assistants that each student in said class be first examined in small groups of two to three students or by themselves in order to acquaint themselves factually in said pool with the proficiency in swimming of each class member before directing said student so examined to enter said swimming pool for the purpose of swimming with said class or such a group of nine or ten students thereof, as said son was directed to do, so as to enable said Haines and said assistants to watch and safeguard said swimmers at all times and to have actual knowledge of the swimming capabilities of each, and to watch and safeguard said class members at all times. d. In failing to prescribe, outline, and specify that while said freshman students in said class No. 151 were assembled and receiving instruction as said class, said Haines and at least one other trained, experienced and competent instructor be present at all times directing and supervising said instruction in order to protect the safety of each member of said class, and that all times while said class was in session said Haines at least be present for said purposes. e. In failing to have any prescribed, outlined or specified directions to guide and direct said Haines and said assistants in the conducting of *310 said class No. 151 with respect to assuring the safety of each member thereof, such as requiring their instruction in smaller groups or singly or in shallow water in order to test their capacity to swim. f. In failing to provide a swimming pool for instruction for the members of said class No. 151, including said son, with adequate safeguards, adequate personnel, and adequate rules for instructing said class safely, to prevent the drowning of any member thereof while receiving instruction therein.
"Petitioner charges that the negligence as alleged in the foregoing paragraph was administrative negligence of said trustees, and as such was attributable to defendant corporation as corporate or administrative negligence, rendering said corporation liable to the extent of all of its assets and said trustees liable to the extent of any assets held in trust by them for the use of said defendant corporation.
"That defendant Haines divided said class into two groups, swimmers and non-swimmers, and permitted said swimmers group including said son to swim at said deep end without having first tested said son's ability to swim; permitted said son to enter into and swim with said group of nine or ten students in said swimming pool for the first time without providing a competent instructor to watch and guard the safety of said son and without having first tested and acquired actual knowledge of the swimming ability of said son; permitted said group of said class to make as their first effort to swim in said class with said group the swimming of the length of a seventy-five foot pool without having tested and acquired actual knowledge of the ability of each of said students; permitted said group to first enter said pool at the deep end for the purpose of executing their first swim in said pool without having first tested and acquired actual knowledge of the swimming ability of each of the members of said class; departed from said class while it was in session and going to another part of said gymnasium building out of the sight of said swimmers and said pool during the time said son first entered the water to swim as a member of the class No. 151; failed to be present to supervise and guard the safety and instruction of petitioner's said son at all times while he *311 was in the water; failed to supervise and guard the safety of each member of said group at all times while said son was in the water at a time when he had not acquired knowledge of the ability of each member of said class to swim and look after his own safety while in the water; left said class in the control and direction of Murphy and Blount whom he knew to be untrained and inexperienced as instructors at the said time when Haines knew said class to be a freshman or beginning class and unskilled in swimming; failed to require said group to be divided into small groups of two or three students or singly in the shallow end of said pool in order to test their ability to swim; failed to watch and observe petitioner's said son during said swim and failed to observe him sinking and his body at the bottom of said pool; failed to rescue said son within at least two and a half minutes after said son sank underneath said water; failed to revive or cause said son to be revived by artificial respiration.
"That said Haines was negligent in the following particulars: a. In dividing said class into said two groups of swimmers and non-swimmers and permitting said swimming in said swimmers group at said deep end without first having tested said son's ability to swim by having said son perform in his presence in said pool in a smaller group at the shallow portion thereof to determine and acquire knowledge of the degree of proficiency of said student in swimming and his ability to look after his own safety while swimming. b. In permitting said son to enter into and swim with said group of nine or ten students in said swimming pool for the first time during said first class without providing competent instructors to watch and guard the safety of said son while at the same time causing him to be instructed in swimming, and without having first tested and acquired actual knowledge of the swimming ability of said son. c. In permitting said group of said class to make as their first effort to swim in said class the swimming with said group of the length of said seventy-five foot pool, without having tested and acquired actual knowledge of the swimming ability of each of said students in said group, including said son. d. In permitting said group of said class, including said son, to first enter said pool at the deep *312 end of said pool for the purpose of executing their first swim in said pool, without having tested and acquired actual knowledge of the swimming ability of each of said students in said group. e. In departing from said class while it was in session and from said swimming pool room and going to another part of said building out of the sight of the said swimmers and said pool, who were also out of his sight, and there remaining during the time said swimmers, including petitioner's son, first entered the water as a member of said class No. 151 and attempted to swim from the deep end to the shallow end of said pool. f. In failing to be present to supervise and guard the safety and instruction of petitioner's said son at all times while he was in the water as a member of said class. g. In failing to supervise and guard the safety of each member of said class, at all times while said son was in the water as a member of said class, at a time when he had not acquired knowledge of the ability of each member of said class to swim and look after his own safety while in the water. h. In leaving said class in the control and direction of said Murphy and said Blount, who were not trained and experienced as instructors sufficiently to supervise and instruct and at the same time observe and guard the safety of each and all of said members of said class No. 151, which members were known by said Haines to be the freshman or beginning class, and unskilled in swimming, while said lack of training and experienced in such instruction of said Murphy and said Blount was known or in the exercise of ordinary care should have been known to said Haines, in that he had been their instructor in swimming for at least a year prior thereto. i. In failing to require said class to be divided into small groups of two or three students or singly in the shallow end of said pool in order to test their ability to swim, thereby first acquiring knowledge of the swimming ability of each member of said class before directing them or any of them to swim first at the deep end of said pool. j. In failing to watch and observe petitioner's said son during said swim and in failing to observe him sinking and his body on the bottom of said pool and failing to rescue said son therefrom within at least two and a half minutes after said son sank underneath said water. k. In failing to revive said son by artificial respiration, or to cause same to be done.
*313 "That said Murphy and said Blount and each of them permitted said son to enter into and swim in said swimming pool for the first time during said first class and permitted said son to enter said pool at the deep end without having first tested and acquired knowledge of said son's ability to swim; attempted to supervise and guard the safety of each member of said group and at the same time to instruct each member of said group in swimming when each of them was incompetent as an instructor; failed to observe each member of said group at all times while each was in the water when neither said Murphy or said Blount had prior to said time acquired reasonable knowledge of each member of said class to swim and look after his own safety while in the water; failed to place themselves in said swimming pool room at such location where either or both could observe each member of said group while said member was swimming from the deep to the shallow end; failed to watch and observe petitioner's said son during said swim and failed to observe him sinking and his body on the bottom of said pool; failed to rescue said son therefrom at least two and a half minutes after said son sank underneath the water; failed to revive said son by artificial respiration or cause same to be done.
"That said Murphy and said Blount were jointly and severally negligent, in the following particulars: a. In permitting said son to enter into and swim in said swimming pool for the first time during said first class lined up with said group of said class, including at least nine or ten of said students, and in permitting said son to enter said pool at the deep end and to swim to the shallow end of said pool without having first tested and acquired knowledge of said son's ability to swim by testing him in a smaller group or singly at the shallow end of said pool. b. In permitting said members of said group, including said son, to first enter said pool at the deep end of said pool for the purpose of executing their first swim in said pool without having tested and acquired actual knowledge of the swimming ability of each of said students in said group, including said son. c. In attempting to supervise, observe and guard the safety of each member of said group and at the same time attempting to instruct each member of said group in swimming at a time *314 when each of them was incompetent as an instructor for said class No. 151 in that each had not had sufficient experience and training in instructing to perform the duties of an instructor and at the same time to observe and guard the safety of each of the members of said group. d. In failing to observe each member of said group at all times while each was in the water as a member of said class, when neither of them had prior to said time acquired reasonable knowledge of the ability of each member of the class to swim and look after his own safety while in the water. e. In failing to place themselves in said swimming pool room at such location within said room where either could observe each member of said group while said member was swimming from the said deep end to said shallow end of said pool. While said group was swimming from said deep end to the shallow end, none of the group of non-swimmers were in the water. While said group were attempting to swim from the deep end to the shallow end, said Blount stood at the shallow end of the pool, and said Murphy was standing at the left corner of said pool on the left side, when looking toward said large diving board from the opposite end, in neither of which locations could said Murphy or said Blount adequately observe and safeguard said son in said group swimming from the deep to said shallow end. f. In failing to watch and observe petitioner's said son during said swim and in failing to observe him sinking and his body on the bottom of said pool and in failing to rescue said son therefrom within at least two and a half minutes after said son sank underneath said water. g. In failing to revive said son by artificial respiration, or to cause same to be done.
"That the said administrative negligence of each of said trustee defendants, defendant corporation, and the said joint and several negligence of said Haines, said Murphy and said Blount, jointly and severally, was the proximate cause of the drowning of petitioner's said son in that the negligence of each of said defendants and said Haines, Murphy and Blount entered into and contributed directly, and effectively and proximately to cause said drowning of said son.
"Petitioner alleges that at the time of said drowning on September *315 23, 1959, defendant corporation had purchased and held title to and possession of a liability insurance policy issued by American Surety Company of New York, covering the liability, jointly and severally, of any of the named defendants for their negligence resulting in the homicide of petitioner's said son, in an amount unknown to petitioner, but charged by petitioner to be at least equal to or more than the amount sued for herein.
"That, in addition to said liability insurance policy, petitioner charges that defendant corporation acquires large sums from time to time, and has on hand at this time large sums derived from the tuition and other charges received from other paying students entering and remaining in said school. Each of the students entering said school and remaining therein are required by defendant corporation to pay tuition and other charges in order to enter as a student and remain in said school as a student.
"That defendant corporation is the owner of other than said aforedescribed assets, some of which are dedicated and devoted to college uses and purposes of defendant corporation, but others of said properties are held purely for investment in that said properties are not actually used by the students and faculty of Morehouse College for educational purposes, although the income and principal of said additional properties are used by said trustees for the further development and current expenses of said college."
The remainder of the petition contains allegations as to the son's scholastic honors and record, his good health and his earnings, and that plaintiff claims the full value of the son's life, to wit, $100,000 for which judgment was prayed.
Attached to the petition were the original charter, amendments and revivers thereof of the corporate defendant and the insurance policy. Various demurrers, both general and special, of the corporate defendant and the trustees, and the individual defendants, were filed to the petition. The trial court overruled all the demurrers, and the case is before this court for review of that order.
The numerous demurrers, both general and special, compose approximately 45 pages of the record. The special demurrers *316 were directed primarily to the allegations of the petition relating to the duties alleged and the specifications of negligence. The demurrers to the allegations of administrative negligence on the part of the trustees of the defendant college and to the allegations of the individual negligence of the employees and agents in most particulars raise substantially the same controlling questions. These questions may be stated in general terms as follows: Do the allegations of the petition affirmatively show that the deceased assumed the risk of drowning or showed such lack of ordinary care for his own safety as to preclude a recovery for his death under Code Ann. § 105-1307? Were the allegations of the duties and specifications of negligence conclusions of the pleader or insufficient as a matter of law to show either a duty or actionable negligence, either administratively or otherwise? Are the assets described in the petition such nontrust assets as could be subjected to a judgment obtained for nonadministrative negligence?
1. The petition alleges that the swimming class attended by the deceased at the time of his death by drowning was one required of any freshman "unskilled in swimming or who could not swim." Under these circumstances, the deceased who, according to the allegation of the petition, was an unskilled swimmer who could barely stay afloat, did not, as a matter of law, assume the risk of death by drowning, nor was he, as a matter of law, guilty of such contributory negligence as would bar a recovery for his death because of the fact that he separated himself into the group who could swim and entered the water upon instructions of his swimming teacher. The swimming instructors knew he was either an unskilled swimmer or one who could not swim, and the deceased, by separating himself into the group who could swim, did not represent that he was, or assume the position of one skilled in swimming, but was entitled to assume that his instructors knew he was not and would exercise ordinary care to protect him. Ordinary care on the part of the defendants under these circumstances might require a greater degree of care, Young Men's Christian Assn. of Metropolitan Atlanta, Inc. v. Bailey, 107 Ga. App. 417, 419 (130 SE2d 242) than would be required in those cases where the deceased was a mere volunteer *317 invitee or trespasser. St. Clair v. City of Macon, 43 Ga. App. 598 (159 S.E. 758); Day v. Trion Co., 56 Ga. App. 1 (192 S.E. 88); Henroid v. Gregson Hot Spring Co., 52 Mont. 447 (158 P. 824). It is for the jury to say whether the proximate cause of the death of the plaintiff's son was his own negligence or that of the defendants.
2. As a general rule, a private corporation, primarily maintained as an eleemosynary or charitable institution, is not liable for the negligence of its officers and employees unless it fails to exercise ordinary care in the selection of competent officers and servants or fails to exercise ordinary care in retaining such officers and employees. Morton v. Savannah Hospital, 148 Ga. 438 (4) (96 S.E. 887). The reason for the rule is that it is the policy of this State that the trust funds of such an institution are not to be depleted by subjection to liability for negligence. However, such institution may be liable for the negligence of its employees and officers, not administrative in character, but recovery would be restricted to noncharitable income or assets. Morton v. Savannah Hospital, 148 Ga. 438 (3), supra. "A charity hospital owes the same duty to a paying patient as does a hospital operated for pecuniary gain and the same law is applicable in both instances. The only difference would be from what funds an eventual judgment for the plaintiff would be satisfied." Executive Committee &c. v. Ferguson, 95 Ga. App. 393, 400 (98 SE2d 50), citing Morton v. Savannah Hospital. We see no difference between a hospital and an educational institution insofar as this principle is concerned. Morton v. Savannah Hospital was followed in Bazemore v. Savannah Hospital, 171 Ga. 257, 263 (155 S.E. 194). Two Justices dissented, but not upon application of Morton v. Savannah Hospital. Justice Atkinson dissented from the rulings in Morton v. Savannah Hospital herein referred to. It might be well to call attention to the fact that in the Morton v. Savannah Hospital case, the record discloses there was no allegation that the institution was being operated for a profit, nor was there any allegation that the payment for the services paid for the entire cost of rendering the services. In conforming to the opinion of the Supreme Court, this court in Morton v. Savannah Hospital, 22 Ga. App. 607 (96 *318 SE 888), said, "Under the answers made by the Supreme Court (148 Ga. 423, 96 S.E. 887) to the several questions certified by this court in this case, it appears that the trial judge erred in sustaining the general demurrer to the plaintiff's petition; and therefore his judgment must be reversed." In Robertson v. Executive Committee of the Baptist Convention, 55 Ga. App. 469 (1) (190 S.E. 432), it was held: "Although an institution which is chartered as a hospital for the treatment of sick people is established primarily as an eleemosynary or charitable institution, yet where in its operation it takes pay patients and charges them for its services, the institution is liable to a patient who pays for the services rendered, for injuries to the patient while in the hospital, caused from the negligence of the institution; but the recovery would be restricted to the income derived from the pay patients or from other noncharitable sources. Morton v. Savannah Hospital, 148 Ga. 438 (96 S.E. 887); McKay v. Morgan Memorial Stores, 272 Mass. 121 (172 N.E. 68); Gamble v. Vanderbilt University, 138 Tenn. 616 (200 S.W. 510, LRA 1918C 875)." In Division 3 of the opinion, the court held: "Where it appeared from the evidence that the defendant maintained and operated the Georgia Baptist Hospital as a place for the treatment of sick people, and charged for such services, but, in instances where patients were unable to pay, the defendant received and treated them as charity patients, that the cost of treating charity patients came out of the income derived from the pay patients, that there were no stockholders of the institution and none of the income derived from the treatment of patients went to profits, but was used to defray the expenses of operating the hospital, including the treatment of the pay patients and the charity patients; and where it appeared that the plaintiff received physical injuries, as alleged in the petition, resulting from the negligence of the agents and servants of the defendants, the evidence was sufficient to support the allegations of the petition."
In Community Hospital, Inc. v. Latimer, 83 Ga. App. 6 (1) (62 SE2d 379), it was held: "Where in this suit by a minor through a next friend against the defendant for injuries negligently inflicted on such minor by a servant or employee of the *319 defendant acting in the performance of the defendant's business, the evidence upon the trial of a special plea in bar showed that the plaintiff and others had patronized the defendant hospital as paying patients under agreements to pay stipulated sums for all services rendered, but that the defendant hospital was chartered to `be operated solely and only as a charitable organization and for the purpose of furtherance of aid to the general welfare and public health of said community, and organized solely with charitable purposes and a nonprofit organization insofar as any of its stockholders, contributors or donors are concerned,' and that no profit, dividends or pecuniary gain should `ever enure or come into the hands of any stockholder, incorporator, association, donor or contributor of said hospital,' and that the defendant is permitted by its charter `to receive any patients in said hospital, but any such funds or profits made, received from such patient shall be paid solely and only into the treasury of said hospital for the use solely to extend further charitable work of said organization,' such facts did not demand a finding for the defendant and in favor of the plea that the defendant was a charitable organization and not liable for the torts or negligence of its servants, and this is true although there was no allegation or proof that the defendant corporation had failed to exercise ordinary care in the selection of competent officers and servants, or had failed to exercise ordinary care in retaining such officers and employees, and the trial court, having directed a verdict in favor of the defendant did not thereafter err in granting a proper motion for a new trial. Morton v. Savannah Hospital, 148 Ga. 438 (96 S.E. 887); Robertson v. Executive Committee of the Baptist Convention, 55 Ga. App. 469 (190 S.E. 432)."
While there may be some inconsistencies in the holdings by this court in Butler v. Berry School, 27 Ga. App. 560 (109 S.E. 544) and Georgia Baptist Hospital v. Smith, 37 Ga. App. 92 (139 S.E. 101), and possibly in Jackson v. Atlanta Good Will Industries, Inc., 46 Ga. App. 425 (167 S.E. 702) and Burgess v. James, 73 Ga. App. 857 (38 SE2d 637), this court is bound by the rulings of the Supreme Court in Morton v. Savannah Hospital, 148 Ga. 438, supra, and the decisions of this court in conformity therewith. It follows that the funds derived from regular tuition *320 paid by students do not constitute charitable funds and are not part of the charitable trust. They are not charitable donations but are payments for services rendered or to be rendered.
It follows, therefore, that the petition in the instant case sets forth a cause of action against the corporate defendant and the trustees in their official capacity, not only for any administrative negligence charged, for which recovery may be had against the general assets of the trust, but also on the theory of respondeat superior for any negligence of its employees and servants, recoverable out of any nontrust or noncharitable assets as might be disclosed by the allegations of the petition. The trial court did not err in overruling the general demurrers to the petition.
In this connection it is most strenuously insisted by the defendant that there are no facts alleged as to how the two instructors were incompetent, and that administrative negligence is confined to knowingly employing incompetent personnel, or retaining them after discovering their incompetency. The petition sufficiently alleged that the instructors were incompetent because they "lacked training and experience in observing and safeguarding the personal safety of said class members, including said son while at the same time instructing each member thereof on swimming." Administrative negligence was further alleged in the failure of the trustees to prescribe, outline and specify certain directions of conduct of the swimming class and the instructors thereof as more specifically alleged in detail in the petition. As was said in Young Men's Christian Assn. of Metropolitan Atlanta, Inc. v. Bailey, 107 Ga. App. 417, 420, supra: "It is our opinion that should the jury find that the defendant was negligent in providing an insufficient number of employees under all the existing conditions and in giving them adequate instructions as to the performance of their duties, the same would constitute an act of corporate or original negligence for which the doctrine of charitable immunity would not shield the defendant."
3. Headnote 3 requires no elaboration.
4. In paragraph 62 of the petition it is alleged that "others of said properties are held purely for investment in that said properties are not actually used by the students and faculty of *321 Morehouse College for educational purposes although the income and principal of said additional properties are used by said Trustees for the further development and current expenses of said college." A petition, when considered on demurrer, must be considered most strongly against the pleader and in applying this rule the petition should be construed in the light of its omissions as well as its averments. Toler v. Goodin, 200 Ga. 527, 534 (37 SE2d 609), and citations. There is no express allegation that the "properties" invested are noncharitable or nontrust assets, and that they are such will not be inferred unless the inference is demanded from the facts alleged. Bivins v. Tucker, 41 Ga. App. 771, 774 (154 S.E. 820). The mere fact that "properties" are invested and the income used for charitable purposes does not demand the inference that the principal is not held in trust for the same charitable use. Further, it appears from additional allegations in the same paragraph that the principal and income are used for further development and current expenses of the defendant college. It appears, therefore, that the special demurrers to this paragraph of the petition should have been sustained. The allegations that the defendants Haines, Murphy and Blount were negligent "in failing to revive said son by artificial respiration, or to cause same to be done," should have been stricken on demurrer. While there may have been a duty upon these defendants to attempt to revive the son by artificial respiration (which the petition alleged they did as soon as they discovered him on the bottom of the pool and removed him therefrom), there was no duty upon them to be successful in such attempt.
5. "Where a petition states the facts upon which the claim of negligence is based, a general allegation in the petition, following a statement of facts relied upon to show negligence, will be construed to have reference to the particular facts pleaded; and, so construed, it is not subject to special demurrer." Fuller v. Inman, 10 Ga. App. 680 (4) (74 S.E. 287). "It is the general rule that the allegations of a petition, when attacked by appropriate demurrer, be construed most strongly against the pleader. So, where general allegations setting up negligence are followed or preceded by specific detailed averments, the general ordinarily *322 must yield to the specific averments. Baggett v. Edwards, 126 Ga. 463 (55 S.E. 250); Palmer Brick Co. v. Chenall, 119 Ga. 837, 844 (47 S.E. 329); McClure Ten Cent Co. v. Humphries, 29 Ga. App. 524 (1) (116 S.E. 54); Doyal v. Russell, 183 Ga. 518 (189 S.E. 32); Green v. Perryman, 186 Ga. 239 (197 S.E. 880); Wood v. Pynetree Paper Co., 29 Ga. App. 81 (114 S.E. 83)." Carter v. Callaway, 87 Ga. App. 754, 761 (75 SE2d 187); Henderson v. Baird, 100 Ga. App. 627, 634 (112 SE2d 221). See, also, Miller v. Ben H. Fletcher Co., 142 Ga. 668 (5) (83 S.E. 521), and the special demurrers therein set forth, and the rulings in Young Men's Christian Assn. of Metropolitan Atlanta, Inc. v. Bailey, 107 Ga. App. 417, supra, in which the allegations and the demurrers thereto were very similar to those in the instant case.
Upon application of these rulings to the special demurrers in the instant case, except for those already considered above, the allegations of the petition are not subject to the special demurrers interposed.
Judgment reversed in part; affirmed in part. Bell, P. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336161/ | 109 Ga. App. 225 (1964)
136 S.E.2d 18
WOODS et al.
v.
STATE OF GEORGIA et al.
40528.
Court of Appeals of Georgia.
Decided February 27, 1964.
*226 Nelson & Nelson, Carl K. Nelson, Jr., for plaintiffs in error.
Eugene Cook, Attorney General, William L. Harper, Olin O. Rambo, Assistant Attorneys General, G. Wesley Channell, Beverly B. Hayes, H. Dale Thompson, Nelson & Nelson, contra.
BELL, Presiding Judge.
We conclude that Mrs. Woods' position *227 is well taken. While Code § 28-405 provides that no creditor shall acquire any preference under proceedings commenced after the filing of a receivership petition, it must be observed that the receivership here was not against Kellam, the debtor of Mrs. Woods, and that Mrs. Woods was not a creditor of Hobbs, the insolvent debtor for whose estate a receiver was appointed. If Hobbs had been the maker of the note instead of Kellam, it can be seen that to allow Mrs. Woods to give the 10-days notice and increase her claim by adding 15 percent to the obligation as attorney's fees might be allowing her to acquire a preference against his other creditors in violation of Code § 28-405.
But here, although required by the court to desist from exercising her power of sale from Kellam and to set up her claim by way of intervention in the proceedings, Mrs. Woods was not asserting any claim against Hobbs or his estate, nor did she become his creditor. As between Mrs. Woods and Kellam, there was nothing to prevent her from giving the 10-days notice to him so as to bind him for payment of attorney's fees.
Mrs. Woods' claim against Kellam is conceded by all to have been based on a separate contractual relationship not connected with the receivership proceedings. It is also acknowledged that her security deed was a valid conveyance pre-existing the receivership proceedings. The interest of Hobbs in the property was nothing more than the equity which Kellam had owned in it which was only that sum over and above the amount sufficient to pay Mrs. Woods in full. The provision for payment of attorney's fees was in the note when Kellam executed it. That obligation and the right to enforce it were secured by the security deed. When Hobbs acquired the property, he took it subject to all rights held by Mrs. Woods under her security deed including the right held against Kellam to enforce payment of attorney's fees as the note provided.
The receiver succeeded only to the rights of Hobbs in the real estate. Neither he nor the creditors of Hobbs could take any steps or do anything adversely affecting the rights of Mrs. Woods which arose from her contractual transaction with Kellam.
The case of Strickland v. Williams, 215 Ga. 175 (109 SE2d 761), is not in point. In Strickland the obligation for the payment *228 of attorney's fees was in a note from Parramore, against whom the receivership was brought, and the payee in the note, Strickland, attempted to enforce it by giving of notice to Parramore and after the appointment of the receiver to the receiver himself. The maker of the note there was the insolvent debtor. Here the maker is a third party.
The right of Mrs. Woods to receive 15 percent of the principal and interest due as attorney's fees having been perfected at the expiration of 10 days from the service of the notice under Code Ann. § 20-506, she was entitled to have that amount paid in full, and the court erred in awarding the lesser sum of $300.
Judgment is reversed with direction to the trial court to enter judgment for Mrs. Evelina K. Woods for the full amount of the attorney's fees as provided in the note.
Judgment reversed with direction. Jordan and Eberhardt, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336156/ | 136 S.E.2d 617 (1964)
262 N.C. 153
Katherine Todd WATSON
v.
George Robert CLUTTS.
No. 602.
Supreme Court of North Carolina.
June 12, 1964.
*618 Harry J. O'Connor, Jr., Sapp & Sapp, by Armistead W. Sapp, Greensboro, for plaintiff appellant.
Jordan, Wright, Henson & Nichols, G. Marlin Evans, Hubert E. Seymour, Jr., by G. Marlin Evans, Greensboro, for defendant appellee.
HIGGINS, Justice.
The plaintiff alleged that on September 13, 1960, she became the patient of the defendant, a physician specializing in surgery, having been referred to him by her regular physician, Dr. Merritt. The defendant had the plaintiff admitted to the L. Richardson Memorial Hospital in Greensboro "for examination and probable surgery. Defendant advised the plaintiff that additional studies would be made at the hospital to determine whether surgery was necessary."
The complaint, among other allegations, contained the following:
"VII. While in defendant's office on September 13, 1960, the defendant advised plaintiff that she would have to remain in the hospital approximately a week prior to surgery as this was a serious operation; that the operation was not done without risk, that it was a bigger operation than one would say of an appendectomy or some lesser procedure. No further explanation or description of the operation nor of its possible results was made to plaintiff.
"When plaintiff entered L. Richardson Memorial Hospital and before any tests or examinations were made she was presented and signed a form which contained a written consent for defendant to perform an operation on her.
"On September 26, 1960 at L. Richardson Memorial Hospital the defendant operated on the plaintiff's throat for the purpose of performing a subtotal thyroidectomy. * * *
"During the operation defendant carelessly and negligently severed both recurrent laryngeal nerves which resulted in paralysis of plaintiff's vocal cords on both sides of her throat."
Additional allegations charged that the defendant negligently failed (1) to ascertain that the thyroid gland was not malignant and should have been treated by medication rather than by surgery; (2) to advise the plaintiff of the dangers involved in surgery; (3) to obtain an enlightened consent for the operation; (4) to follow proper surgical procedures in performing the operation, thereby severing the recurrent laryngeal nerves, causing permanent paralysis of the vocal cords; (5) to evaluate and remedy in so far as possible the injuries resulting from the operation.
The trial consumed almost one week. The record and the briefs are full and complete. The evidence consisted in the main of technical medical testimony and hospital records. In addition, the plaintiff, age 32, testified that in March or April, 1960, she consulted Dr. Fred Merritt, her family physician, because of her nervousness and loss of weight. Dr. Merritt prescribed "thyroid, vitamins, and iodine." This treatment continued, except for a short interval, until September when Dr. Merritt advised, "That I was able to take the operation * * * and he sent me to Dr. Clutts. * * * After examination, Dr. Clutts said, `There's thyroid there * * * that it should be removed * * *. He told me that I would have to remain in the hospital a week before the operation in order to run some tests." Dr. Merritt checked the charts on Thursday. "Dr. Clutts * * * asked me was I ready for the operation. I told him, `Yes.' He said, *619 * * * `We will do it on Monday and after this operation you will feel like you are 16 again.' At no time while I was in the hospital did Dr. Clutts make any further statement to me as to the nature of the operation and its probable consequences."
"I talked to Dr. Clutts about my condition the next morning (after the operation) and he said that he had run up on a little difficulty and said that my thyroid was wrapped around my vocal cord and that was the condition he found. * * * He said it was nothing to worry about, that it would be all right."
The plaintiff further testified as to the hoarseness, difficulty in breathing and in talking, beginning immediately after the operation and continuing, although she returned to work for a few months. After consulting with Dr. Clutts a number of times, she returned to Dr. Merritt for treatment. Thereafter, she consulted with Dr. Shahane Taylor who sent her to the Memorial Hospital in Chapel Hill where she submitted to a tracheotomy
Dr. Groat, pathologist at the Richardson Memorial Hospital in Greensboro, made a microscopic examination of the thyroid tissues (removed by the operation). Diagnosis, "Diffuse hyperplasia of the thyroid," and "Parathyroid gland * * * there was no malignancy in this tissue. * * * The gland I examined which came from the patient was diseased. * * * This is the type of thyroid gland that is removed surgically. This is generally done when a patient does come under the care of a physician who finds the condition of thyrotoxicosis, so this is a type of gland which is frequently removed in such case * * * a disease of the thyroid gland in which a gland oversecretes thyroxine or * * * If a patient has that type condition and nothing is done about it, no treatment is given, it may well be fatal sooner or later. * * *
"The vocal cords in relation to the thyroid gland and the larynx or voice box, are in the interior, the interior of the larynx, interior of the upper part of the larynx. Inside the upper part of the larynx. The vocal cords run horizontal from front to back. They consist in part of muscle, which is the interior of the vocal cords. They are covered over by some other types of tissue on the outside. Immediately covering the vocal cords, there is a type of tissue called the connective tissue. Immediately over that, there is a type of tissue lying on the surface of the vocal cords called epithelium. The vocal cords which run from front to back of the throat inside the upper part of the voice box or larynx, open and close. When you breathe in, when you inhale, the cords are open. When you speak, the vocal cords open and close, or go through the motions of what we doctors call abduction and adduction, very rapidlyvibrate. They vibrate at very high speed, and as you speak, that vibration is going on in your vocal cords all the time, but of course, you are not conscious of it. * * * While I was making this examination of this tissue, the results of which are covered in my report, Plaintiff's Exhibit 5, during either the gross or microscopic examination, I did not discover the presence of any nerve tissue."
Plaintiff's witness, Dr. Lusk, testified: "There are three basic treatments for an overactive thyroid gland. There is drug treatment. There is radioactive iodine treatment, and there is surgery. * * *
"Now, all three are used and must be used in different conditions. For instance, we generally prefer drug treatment for children and preparation for surgery. Radioactive iodine treatment is x-ray, and we generally reserve that for an older age person or the poor risk patient, or those with a diffuse goiter, who may have exophthalmos, prominence of the eyes.
"Surgery is generally reserved for the younger patient, who is too young to be exposed to the radiation of radioactive *620 iodine or who has a large gland, and, of course, surgery is also reserved for those in which there is any question of cancer. If there is any question of cancer, surgery, of course, becomes the immediate form of treatment, so we have basically three forms of treatment for thyroid, and we have to use our judgment in regards to the patient, each individual, as to which is going to be the best treatment for this patient."
The records from Memorial Hospital at Chapel Hill contain these entries: "`Section of recurrent laryngeal nerve secondary to thyroidectomy bilateral,' and the words in item 3 on that page `due to lesion of nerve.'
"`Bilateral paralysis of the vocal cords,' these words in quote and enclosed in brackets, `following surgical trauma to the recurrent laryngeal nerve on each side,' * * `due to lesion of nerve.'"
Dr. Shahane Taylor of Greensboro, a specialist in otolaryngology, and a plaintiff's witness, testified:
"My examination revealed a complete abductor paralysis of the vocal cords. The abductors of the larynx are muscles which pull the vocal cords apart. When you take a deep breath, your abductor muscles pull your vocal cords apart so you can breathe. I found a complete paralysis of the abductor muscles on both sides. * * *
"I believe that had this girl had an abductor paralysis, she would have had to have had the tracheotomy before she did have it. I don't believe she could have gone that long, and that is my opinion, and the only thing that I know oftalking about fibrous tissue, the only thing that I know of that came on here to cause this delayed paralysis of this larynx is fibrosis from healing, which we all know is one of nature's processes of healing. Fibrosis, formation of scar tissue in healing, it's all the same. All of us heal in scar tissue."
In reviewing a week-long trial in which most of the evidence came from medical experts and from hospital records, the Court necessarily must confine the factual recitals to those matters which bear directly on the questions of law presented by the appeal. To begin with, the plaintiff concedes the defendant possessed the necessary qualifications to permit him, as a surgeon, to accept the plaintiff as his patient and to undertake the diagnosis and treatment of her thyroid involvement. She also concedes he is a specialist in surgery. Her family physician, Dr. Merritt, after diagnosis and treatment for several months, advised surgery, and he referred her to the defendant for the operation. The defendant arranged for her admission to the Richardson Memorial Hospital in Greensboro for further tests and preparation for surgery if required. She signed a proper authorization for the operation.
Notwithstanding this background, the plaintiff alleged the defendant was negligent in that he should have discovered her thyroid condition was nonmalignant and should have treated her by medication rather than by surgery. Not only did the plaintiff fail to offer medical evidence in support of this contention, but her own expert witness, Dr. Foust, testified he made a microscopic examination of the gland after removal, and while it was nonmalignant, nevertheless it was diseased. "This is the type of thyroid that is removed surgically." The plaintiff's witness, Dr. Lusk, testified she is in the category indicating surgery. The decision to operate, therefore, is supported by the plaintiff's own evidence. Negligence in the decision to operate is not disclosed.
The plaintiff next contends her consent to the operation was obtained because of the defendant's negligent failure to advise her of the "nature of the operation and its probable consequences." She so testified. However, in paragraph VII of the complaint she alleged the defendant advised the plaintiff that she would have to remain in the hospital approximately a week prior to surgery as this was a serious operation; that the operation was not done *621 without risk. * * * The plaintiff is bound by that allegation. "A party is bound by his pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader." Davis v. Rigsby, 261 N.C. 684. The plaintiff's testimony that she was not advised of danger must give way to the judicial admission contained in her complaint. In addition, she knew her family physician had advised, and for months had been preparing her for, a thyroidectomy. He checked her chart before the operation.
Courts have expressed widely divergent views as to how far the surgeon should go in advising of dangers involved in a proposed operation. Plaintiff insists this Court should take the extreme view expressed in Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal. App. 2d 560, 317 P.2d 170: "A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent." See, also, 40 Minn.Law Review 876.
Of course, the type of risk involved should have bearing on the completeness of the disclosure required. Obviously, brain or heart surgery involves high risks. Removal of an ingrown toe-nail ordinarily does not. However, a surgeon, except in emergency, should make a reasonable disclosure of the risk involved in a proposed surgical operation if the operation involves known risk. And yet, to send a patient to the operating room nervous from fright is not often desirable. The middle ground rule is admirably stated in 175 Harvard Law Review 1445: "The duty narrows then, in the average case, to disclosure of dangers peculiar to the treatment proposed and of which it is likely that the patient is unaware. The doctor should have little difficulty in choosing from these the risks that are sufficiently serious and likely to occur as to be essential to an intelligent decision by his patient."
Difficulty arises in attempting to state any hard and fast rule as to the extent of the disclosure required. The doctor's primary duty is to do what is best for the patient. Any conflict between this duty and that of a frightening disclosure ordinarily should be resolved in favor of the primary duty. And yet, the consent of the patient or of someone duly authorized to consent for him, except in emergencies, is required before the operation is undertaken. The surgeon should disclose danger of which he has knowledge and the patient does notbut should havein order to determine whether to consent to the risk.
In this instance the defendant, according to the plaintiff's judicial admission, was advised the operation was serious and involved risk. For months Dr. Merritt had been preparing her for surgery. If, in order to withdraw her written consent, she desired to be further advised, a simple request would have disclosed the surgeon's view as to adverse possibilities. The claim of defendant's failure to advise the patient that the proposed operation was serious and involved risk is not sustained.
Does the evidence disclose negligence in performing the operation? The plaintiff's pathologist made a microscopic examination of the gland after removal. "I did not discover the presence of any nerve tissue." Plaintiff's witness, Dr. Taylor, gave as his opinion that if the nerve had been severed by the operation, paralysis would have been immediate, and a tracheotomy would have been required. The delayed paralysis, in his opinion, resulted from the formation of scar tissue developed in the healing process. This view appears to be strengthened by the plaintiff's evidence that on the day following the operation the defendant told her he ran into some difficulty during the operation and that the gland had wrapped itself around the vocal cord. Hospital records at Chapel Hill disclose heavy scar tissue was encountered in the tracheotomy. The evidence is insufficient to disclose negligence *622 in the surgical procedure followed by the defendant in this case. Either of two operative procedures has its advocates among surgeons. See DiFilippo v. Preston, 3 Storey 539, 173 A.2d 333 (Supreme Court of Delaware, decided June 29, 1961).
The evidence offered at the trial indicates that the slow process involved in scar tissue formation following the operation finally choked off the flow of blood to the nerves which supply the motor power for the vocal cords, causing paralysis. Plaintiff's evidence fails to show the paralysis resulted from a severance of the nerves during the operation. This view is supported by the plaintiff's own evidence. After the operation at Richardson Hospital in Greensboro in September, 1960, and before the tracheotomy in Memorial Hospital at Chapel Hill in November, 1961, the plaintiff was treated by her regular physician, Dr. Merritt. She did not call him as a witness.
The plaintiff attempted to testify that if the defendant had advised her the operation might involve paralysis of the vocal cords she would have withdrawn her consent. The court excluded this testimony which presented a case of looking backward. Perhaps the defendant with the benefit of a backward look would not have performed the operation; but at the time decision was made to operate the surgeon was dealing with a patient who had a diseased gland which failed to secrete the proper amount of hormone. The medical experts, plaintiff's witnesses, say surgery in such event is indicated. All cutting operations involve some risks. Possible dangers of an operation had to be balanced against the certain danger of a diseased thyroid. Decision had to be made before the operation. To permit the plaintiff to change the decision afterwards is equivalent to looking at the answer without solving the problem.
The court, over objection, admitted in evidence certain entries made in the hospital records at Chapel Hill, including the following: "Diagnosis: paralysis of vocal cords (due to nerve lesions) * * * secondary to thyroidectomy bilateral * * (due to nerve lesions)." These entries were made by Dr. Haywood, then serving his first year as assistant resident physician. Later in the record Dr. Haywood repeated in substance this diagnosis. At the time of these entries, Dr. John W. Foust was resident physician and in overall charge of the patient and the records. He actually initialed them as approved.
Dr. Foust and Dr. Mason performed the tracheotomy. Dr. Foust testified: "* * * (T)he first diagnosis that is listed here is one that I don't think can be made on the basis of studies that have been made on the patient while at Chapel Hill. * * * I would interpret this diagnosis to mean that the nerve had been sectioned, which means cut, * * *. From the information we have in this chart, we have no evidence that a nerve has been cut." On the basis of the foregoing testimony of the plaintiff's witness, Dr. Foust, the court withdrew from the jury that part of Dr. Haywood's diagnosis enclosed in parenthesis. If the plaintiff's own evidence shows that Dr. Haywood did not have sufficient basis for the opinion he expressed in the hospital records, and in fact without a showing of his having made any tests, or his qualification to make them, the exclusion was not error.
The decisions of this Court generally hold that liability in malpractice cases must be based on proof of actionable negligence. The doctrine res ipsa loquitur cannot be relied on to supply deficiencies in the proof. Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485; Smith v. Wharton, 199 N.C. 246, 154 S.E. 12.
After careful review of all assignments of error, we conclude the demurrer to the evidence was properly sustained.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336150/ | 109 Ga. App. 386 (1964)
136 S.E.2d 461
FULLER, Executrix
v.
FULLER, Administrator, et al.
40354.
Court of Appeals of Georgia.
Decided March 6, 1964.
Rehearing Denied March 19, 1964.
*389 J. Willard Register, Hatcher, Stubbs, Land & Rothschild, Albert W. Stubbs, for plaintiff in error.
Cartledge & Cartledge, Emmett B. Cartledge, Kelly, Champion & Henson, Forrest L. Champion, Jr., John W. Denney, J. Norman Pease, contra.
BELL, Presiding Judge.
1. (a) Plaintiffs introduced sufficient evidence as to the creation of the parol contract, its precise terms, its continuance, performance by the plaintiffs over a long period of time until the deceased married and left plaintiff's home thereby rendering continued performance by plaintiffs impossible, and as to the measure of damages to support the jury verdict for plaintiffs.
The evidence supported the verdict for the plaintiffs. The trial judge did not err in overruling defendant's motion for new trial on the general grounds and her motion for judgment notwithstanding the verdict. Peek v. Peek, 207 Ga. 72, 73 (2) (60 SE2d 138); Middleton v. Waters, 205 Ga. 847 (55 SE2d 359); Davis v. State, 68 Ga. App. 296 (22 SE2d 762).
(b) Ground 9 of defendant's amended motion for new trial alleges that the court erred in failing "to instruct the jury as to what constituted a contract, and that one of the essential elements of a contract is that there must be a meeting of the minds between contract parties."
The court charged fully on plaintiff's burden of proving the existence and the precise terms of the parol contract.
In regard to the other points on which defendant contends *390 the judge should have charged, no issue was made by the evidence as to whether the parties were competent to contract, whether there was consideration for the contract, whether any subject matter existed upon which it could operate, whether there had been substantial compliance with the contract, nor whether any nonperformance was caused by the act or fault of the opposite party. The evidence clearly showed that if an agreement were made as plaintiffs contend, it was a valid contract between parties able to contract, supported by valuable consideration, namely the mutual promises of the parties and performance by the plaintiffs in supporting and taking care of Ernest Fuller as a member of L. A. Fuller's family without payment for 37 years and 3 months. Finally, the failure of the trial court to charge that plaintiffs would be excused from performance of their part of the contract if their nonperformance were caused by the act or fault of the opposite party to the contract, could only have resulted in harm to the plaintiffs, and the failure to give this charge inured to the benefit of defendant. He cannot complain.
Defendant relies on Flatauer v. Goodman, 84 Ga. App. 881 (67 SE2d 794). In that case, however, the court held that "the trial judge's charge to the jury in the present case amply covered the issues of the case and, if more specific instructions and definitions were desired, a proper written request to charge should have been made." In Rome R. &c. Co. v. King, 33 Ga. App. 383, 384 (126 S.E. 294), the court said that, "it is also the established general rule that, where the judge has thus fairly and correctly instructed the jury, a party who desires more specific and concrete instructions as to one of his contentions, or a definition or more detailed explanation of general technical or legal words or phrases, should make in writing a timely request therefor." In the case before us the defendant submitted no requests for charges. "In the absence of a request, the court did not err in his charge to the jury in failing to define a contract, as the charge given fully covered the issues in the case." Whitley v. Wilson, 90 Ga. App. 16, 17 (81 SE2d 877). "The court did not err in failing to charge that `A contract is an agreement between two or more parties *391 for the doing or not doing of some specific things.' There was no request to charge this proposition. The instructions sufficiently covered the issues made by the pleadings and under the facts. There was no error in the failure so to charge." Rowland v. Elkin, 85 Ga. App. 301, 305 (69 SE2d 388).
Special ground 9 has no merit.
2. Defendant contends in special ground 4 of her amended motion for new trial that the instructions of the judge on the credibility of witnesses are limited to determining where the preponderance of evidence lies and that the judge erred in failing to repeat the same rules on credibility as applicable where the burden of the plaintiff was to prove the existence of the alleged oral agreement beyond a reasonable doubt. Defendant alleges that by implication the jury was not bound by any rule relating to the credibility of witnesses in determining whether the oral agreement was made. This ground has no merit.
The court instructed the jury: "Now, gentlemen, you are made by law the exclusive judges as to the credibility of witnesses. In passing upon the credibility and in determining where a preponderance of the evidence lies you may consider all the facts and circumstances of the case," after which the court listed all the factors relating to credibility from Code § 38-107. The next paragraph of the court's charge on credibility again makes it clear that the instruction on credibility applied to all witnesses; it is not limited specifically or by implication to particular witnesses or particular issues. "Credibility" and "determining where a preponderance of the evidence lies" are separate factors. The court charged all of Code § 38-107, and we cannot agree that the trial judge started to charge a principle of law and committed harmful error by failing to charge the jury fully as defendant alleges.
The court's charge made it abundantly clear that plaintiff's burden of proving an issue beyond a reasonable doubt was considerably heavier than the burden of proving an issue by the preponderance of the evidence. Reasonably intelligent jurymen would realize from this emphasis alone that, instead of being freed from any limitation on what reliance to place on a witness's impartiality, veracity, or opportunity to know the truth, *392 they were bound to weigh all evidence with even greater care when determining that plaintiff had proved an issue beyond a reasonable doubt.
Furthermore, if the court had charged the language for which defendant contends in her assignment of error 4 (c), it would probably have committed reversible error by commingling references to the subjects of the burden of proving by a preponderance of the evidence and the burden of proving the issue beyond a reasonable doubt. Tidwell v. Garrick, 149 Ga. 290 (99 S.E. 872). See also criminal cases in which the burden of proof "is beyond reasonable doubt." Gale v. State, 135 Ga. 351 (69 S.E. 537); and Eller v. State, 48 Ga. App. 163 (172 S.E. 592).
The ground has no merit for the additional reason that in the absence of a proper request, and none was submitted to the trial court by defendant, it is not error to fail to charge the law applicable in determining the credibility of witnesses. Childs v. Ponder, 117 Ga. 553 (43 S.E. 986); Campbell v. Dysard Const. Co., 40 Ga. App. 328 (4) (149 S.E. 713); Baker v. State, 14 Ga. App. 578 (3) (81 S.E. 805).
Special ground 4 was properly denied.
3. In special ground 5, defendant's contention that only opinion evidence of the value of the property was introduced is not supported by the record, in which the defendant herself testified as to actual monthly and aggregate rental income from the property. In addition, the location and type of property, including the types of buildings and their use, are outlined by the report of the three-man appraisal committee of the Columbus Real Estate Board and could have been considered by the jury. Thus, even though the defendant stated in open court and counsel for both sides stipulated that the committee's valuation was the fair market value of the property at the death of its owner, the trial judge correctly instructed the jury to make its own determination of the market value of the real property. The jury is not required to accept as correct even the uncontradicted opinion or estimate of a witness as to the value of property. Hay v. Carter, 91 Ga. App. 540, 541 (86 SE2d 532). This court cannot hold that the charge was unauthorized by the evidence. Southern v. Cobb County, 78 Ga. App. 58 (2) (50 SE2d 226), and numerous cases cited therein.
*393 This case is distinguishable from Sammons v. Copeland, 85 Ga. App. 318, 321-322 (69 SE2d 617), relied upon by defendant, in which the admittedly correct general rule on valuation stated above, and used in the judge's charge in the case before us, was held to be inapplicable in the absence of any evidence, other than opinion evidence, from which the jury could draw its own conclusions.
The charge that in determining the value of the realty the jurors could consider maps, photographs and diagrams, when none were in evidence, was mere surplusage or for purposes of illustration and did not constitute harmful error.
The appraisal committee of the board valued Ernest C. Fuller's real estate at $174,682 at the time of his death. This did not include several parcels of property he sold for about $41,000 prior to his death, nor did the appraisal include the new home and the duplex he had given his wife before his death. The duplex rented for approximately $90 per month. Defendant and her counsel conceded that the appraisal represented fair market value. The evidence disclosed funeral expenses, flowers, drug bills, a slab for the grave, incidental debts on open accounts, attorney's fees for representation of the estate in this litigation, the amount of year's support taken by the widow, and the principal of a $9,900 note Ernest Fuller had endorsed for defendant's brother. Defendant stated that no other debts were outstanding. The plaintiffs also offered proof of the value of defendant's right in Ernest C. Fuller's estate. In calculating the amount of the dower upon total appraised real estate, the property already set aside as a year's support for her was included. All of these amounts were charged against the estate to determine its net value, the measure of damages for plaintiffs.
The evidence indicates that the deseased's assets were $174,682 (the value of real estate) plus $23,000 in collected rents since his death, totaling $197,682. The debts prior to plaintiff's claim were $10,450 for year's support, $1,477 for funeral expenses, $9,000 attorney's fees, $9,900 contingent liability as endorser on unpaid note, $1,168 for open accounts, and $26,726 for defendant's dower interest. In their brief the plaintiffs concede that commissions in the amount of $8,784 would be prior to their *394 rights. Defendant testified she had paid some taxes, but she did not give the amount. No mortgages or other debts owed by the executrix are shown. Thus the record shows $67,505 in debts prior to defendant's claim. The total assets of $197,682, as shown above, less $67,505 in charges leaves a balance of $130,177. After plaintiffs' claim of $119,672 is paid, a balance of $10,505 would still remain in the estate for the defendant or other charges having priority over plaintiffs' damages. The precise amounts of these priority items have not been adjudicated by this action, but both the plaintiffs and the defendant undoubtedly are bound by admissions in judicio which they cannot later contest.
There is no harmful error in special ground 5.
4. (a) Ground 7 contends that the judge erred in his charge on the measure of damages plaintiffs could recover, if the jury found that the alleged contract was made and performed. Again the defendant did not request a charge. Movant avers that the charge was erroneous because "dower" was not defined. We find, however, that dower was fully defined in the judge's charge in almost the precise words in which movant asserts it should have been given.
Movant avers further that the judge erred in instructing the jury to deduct movant's right of dower from the estate before fixing damages. Obviously, the complaining party, the defendant, could not have been harmed by this instruction since its effect is to reduce plaintiffs' damages further.
Movant also alleges that there was no competent evidence of probative value as to the value of movant's right of dower. An attorney testified as to the method by which the dower was evaluated. The gist of movant's argument is that this testimony is not competent because it is based on Federal estate tax tables. There was no objection to the evidence on the value of the dower right during the trial, nor did defendant attempt to refute it by other evidence. In this situation, and considering that defendant submitted no request to charge, we feel that the defendant has no standing to raise this objection to the judge's charge. We need not decide whether the method of valuing dower and the use of the Federal tables would otherwise have been error.
*395 (b) Movant also avers that in the charge on damages the judge erred in instructing the jury to deduct all Federal, State and local taxes, if any, but did not instruct the jury in detail how to determine taxes due. Also, defendant avers that no evidence of any taxes was submitted to the jury and therefore this charge tended to distract the jury from the real issues in the case. The defendant executrix was in the best position to know whether taxes had been paid or were due; she testified that she had paid property taxes several times, but she did not specify the amounts paid. She gave the amounts of several debts paid and then testified that $1,000 would cover all other chargeable debts. When asked whether any more debts were chargeable against the estate, she replied that she knew of none. The defendant executrix cannot defeat the agreement or successfully challenge the judge's charge by secretly withholding information on debts for which the estate is liable. Since evidence of other debts that would affect the net value of the estate do not appear in the record, this issue is not subject to review. Also, she has no ground for complaint against the charge on taxes, because the effect of the jury's considering this matter could only have been a further reduction in the net estate, the damages accruing to plaintiffs. We cannot countenance defendant's allegation that the charge on taxes "distracted" the jury to her detriment.
(c) In special ground 7, movant objected to the part of the charge instructing the jury, in fixing damages, that the measure of damages was the value of Ernest C. Fuller's estate, less all reasonable charges against the estate and after legal claims and debts against the estate were considered and allowed for. She claims the evidence fails to show the amount of such debts, claims and charges, that the evidence failed to show all of the deceased's property and that the judge did not instruct the jury about legal commissions due her, as executrix.
There was no evidence of the legal commissions due her as executrix, and she had ample opportunity to make a timely claim. The court did not reject any evidence of additional debts, claims and charges. Executrix explicitly denied that she knew of any more charges. As for the alleged failure to show all of *396 the deceased's property, the record indicates that the deceased owned no real estate other than that listed and valued in the assessor's report (except the home he built for her and some property he gave her before his death, not claimed by plaintiffs; the property she accepted for year's support was included in the valuation by the assessors, but its value was considered a charge against the estate with priority over plaintiffs' claim, so there is no difficulty about that). The only personal property in the late Ernest C. Fuller's estate against which plaintiffs asserted a claim was the $23,000 in rentals collected by the defendant from the time of his death until trial of this case.
If the property left by the deceased is in fact inadequate to cover all the prior charges and the judgment for the plaintiffs, only the latter would suffer, and defendant is not harmed.
The cases cited by defendant, Mayor &c. of Americus v. Brightwell, 90 Ga. App. 341 (82 SE2d 732), and Leggett v. Brewton, 104 Ga. App. 580, 583 (122 SE2d 469), are not in point because there the court gave the jury no charge at all as to the rules for fixing damages. In the case before us the court gave the correct measure of damages; the difficulty of determining damages does not render a correct charge error.
There is no merit in ground 7.
5. Special grounds 6 and 8 complain of portions of the charge dealing with the enforcement of certain parol contracts to convey or devise land by the equitable remedy of specific performance, the degree of proof required to establish such contracts, and their enforcement by a suit for damages like the present action. The assailed excerpts include language that "the disappointed party may apply to a court of equity for a specific performance of the contract, if it was one of such a nature that a court of equity could require specific performance, and if not, and the contract was one dealing with property, equity would award damages as for a breach of the contract."
The prayers of the petition in this case were specifically for money damages and generally for relief. Therefore, there was no issue in the case involving the right of a party to specific performance of the contract. Williams v. Manchester Building Co., 213 Ga. 99, 102, 103 (97 SE2d 129). However, any suit for damages for the breach of a contract to will property requires *397 strong and convincing proof of the contract and of partial performance by the plaintiffs, as does a suit for specific performance of the contract. Wynne v. Buyers, 53 Ga. App. 660, 662-663 (187 S.E. 173); Rodgers v. Street, 215 Ga. 643, 644 (112 SE2d 598); 94 CJS 897, Wills, § 126; 57 Am. Jur. 163, Wills, § 185.
The words "and if no . . . equity would award damages as for a breach of contract" merely state that if specific performance was not possible under the facts of a case then damages for breach of the contract would be an alternative remedy. Spearman v. Wilson, 44 Ga. 473, 478. These words did not, as contended by the defendant, instruct the jury, either explicitly or implicitly, that the legal principles the court had previously mentioned in conjunction with specific performance had no application to the claim for breach of contract. In considering whether a charge excepted to is error it is proper that it be considered in its context and in connection with the entire charge. Jordan v. Fowler, 104 Ga. App. 824 (123 SE2d 334); Underwood v. Atlanta &c. R. Co., 105 Ga. App. 340, 357 (124 SE2d 758); Venable v. Gresham, 105 Ga. App. 720, 724 (125 SE2d 507); Butler v. Reville, 107 Ga. App. 345 (130 SE2d 161); State Hwy. Dept. v. Cochran, 108 Ga. App. 61, 62 (131 SE2d 802). The court also charged the jury that the plaintiffs in this proceeding are seeking damages because of an alleged breach of contract and fully charged the jury on the requirements of proof for such an action in basically the same language as that included in the excerpt relating to specific performance. While the court unnecessarily instructed the jury on the alternative remedy of specific performance, this cannot be said, when the charge is viewed as a whole, to have confused or misled the jury nor to have been prejudicial or harmful to the defendant so as to require the grant of a new trial.
6. All of defendant's general and special demurrers which had merit were cured by plaintiffs' amendments to their petition.
Judgment affirmed. Hall and Pannell, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336220/ | 131 S.E.2d 491 (1963)
259 N.C. 545
Lillian H. WHALEY, Administratrix of the Estate of William Charles Whaley, Deceased, and Firestone Tire and Rubber Company,
v.
GREAT AMERICAN INSURANCE COMPANY and Insurance Company of North America.
No. 313.
Supreme Court of North Carolina.
June 14, 1963.
*495 Taylor, Allen & Warren, Scott B. Berkeley and John H. Kerr, III, Goldsboro, for plaintiffs.
Braswell & Strickland, Goldsboro, for defendant Great American Ins. Co.
T. Lacy Williams, Raleigh, for defendant Insurance Co. of North America.
BOBBITT, Justice.
In the Burgess (consent) judgment it was agreed that, upon payment thereof by Firestone, "an action may be brought by it, as subrogee of the William Charles Whaley estate, or in the name of Lillian H. Whaley, Administratrix of the estate of William Charles Whaley v. Great American Insurance Company and North American Insurance Company (sic), to determine their liability on the policies referred to." Firestone paid the judgment. This action was instituted solely for its benefit. It is not an insured under either policy. It must recover, if at all, as subrogee. It stands in the same position as that in which the administratrix of Whaley's estate would stand if she had paid the judgment and were the plaintiff and real party in interest herein.
Plaintiffs' Appeal.
Plaintiffs' appeal is from the portion of the judgment providing that they "have *496 and recover nothing of the defendant Insurance Company of North America."
When the accident occurred, Whaley was driving Firestone's Ford. He was not driving the automobile specifically described in the policy, to wit, his Plymouth.
The liability, if any, of Insurance Company of North America must be based on Paragraph V ("Insuring Agreements") of its policy, which, in pertinent part, provides:
"V. Use of Other Automobiles: If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages A, B, division 1 of coverage C and E with respect to said automobile applies with respect to any other automobile, subject to the following provisions:
"(a) * * *
"(b) * * *
"(c) * * *
"(d) This insuring agreement does not apply:
"(1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse; * * *."
Was Firestone's Ford "furnished for regular use to" Whaley within the intent and meaning of (d) (1)?
The "Use of Other Automobiles" clause "extends the driver's regular insurance to casual driving of automobiles other than his own without the payment of an extra premium, and usually excludes from coverage other cars owned by the insured or by members of his household as well as cars furnished for regular use of the insured or used in his business." 7 Am.Jur. 2d, Automobile Insurance § 105; Annotations: 173 A.L.R. 901, 83 A.L.R. 2d 926, 86 A.L.R. 2d 937; 7 Appleman, Insurance Law and Practice, § 4455.
"The obvious purpose of the `other car' provisions, with the exceptions, as to provide coverage to a driver without additional premiums, for the occasional or infrequent driving of an automobile other than his own. They are not to take the place of insurance on automobiles which are furnished for the regular use of the insured. (Citations) The purpose is not to insure more than one car on a single policy." Wyatt v. Cimarron Insurance Company, 10 Cir., 235 F.2d 243; Home Insurance Company v. Kennedy (Del.), 2 Storey 42, 152 A.2d 115.
In Campbell v. Aetna Casualty and Surety Co., 4 Cir., 211 F.2d 732, the Court of Appeals, in opinion by Soper, J., quotes with approval, as in accord with the great weight of authority, the following from the opinion of Chestnut, J., in Aler v. Travelers Indemnity Co., D.C., 92 F. Supp. 620, viz.: "The general purpose and effect of this provision of the policy is to give coverage to the insured while engaged in the only infrequent or merely casual use of an automobile other than the one described in the policy, but not to cover him against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to do so." In Leteff v. Maryland Casualty Company, La.App., 91 So. 2d 123, the court, after an exhaustive review of earlier decisions, approves the interpretation given in Judge Chesnut's opinion in Aler. Later decisions of like import include Home Insurance Company v. Kennedy, supra; O'Brien v. Halifax Insurance Co. of Massachusetts, Fla.App., 141 So. 2d 307.
"No absolute definition can be established for the term `furnished for regular use'. *497 Each case must be decided on its own facts and circumstances." Home Insurance Company v. Kennedy, supra; Miller v. Farmers Mutual Automobile Insurance Co., 179 Kan. 50, 292 P.2d 711.
During 1959 and prior thereto, Firestone's Ford "was stationed" at its place of business at Goldsboro "for the regular use of its manager, William Charles Whaley, and five other employees in the conduct of the company's business." Clearly, the policy on Whaley's own individual car, the Plymouth, would provide no coverage if Whaley, when the accident occurred, had been engaged "in the conduct of the company's business." Farm Bureau Mut. Automobile Ins. Co. v. Boecher, Ohio App., 48 N.E.2d 895; Farm Bureau Mutual Automobile Ins. Co. v. Marr, D.C., 128 F. Supp. 67; Voelker v. Travelers Indemnity Company, 7 Cir., 260 F.2d 275; Home Insurance Company v. Kennedy, supra. Of like import, but relating to medical payments coverage rather than liability coverage: Dickerson v. Millers Mutual Fire Ins. Co. of Texas, La.App., 139 So. 2d 785; Moore v. State Farm Mutual Automobile Ins. Co., 239 Miss. 130, 121 So. 2d 125; O'Brien v. Halifax Insurance Co. of Massachusetts, supra.
When the accident occurred, Whaley was using the Ford "for his own personal business or pleasure without the knowledge, permission or consent" of Firestone. Firestone's regulations provided, inter alia, that "(n)o one, under any circumstances (was) to use or operate company vehicles for personal affairs or pleasure." When employed by Firestone in 1941, Whaley agreed (in writing) to comply with Firestone's instructions concerning the use of company cars by an employee, including the following: "Under no circumstances is the Company car to be used or operated by you in the interest of your personal affairs or pleasure and not upon the business of the Company and the carrying out of Company duties you were employed to perform."
Whaley had, "on numerous occasions between January 8, 1959 and June 13, 1959, and prior thereto," used the Ford "for his own personal business and pleasure." (Our italics) Firestone had no actual notice or knowledge of Whaley's use of its Ford for his own personal business and pleasure until the trial of the Burgess case in October, 1960. Whaley was manager of Firestone's Goldsboro store; and, as manager, Whaley's authority in Goldsboro with reference to the use of Firestone's Ford was final. In fact, Firestone's Ford was available for Whaley's use for his own personal business and pleasure and was so used by him "on numerous occasions."
The contention that the policy provides coverage because, when the accident occurred, Firestone's Ford was being used by Whaley for his own business and pleasure rather than "in the conduct of the company's business," is untenable. The fact that Whaley was using the Ford in violation of Firestone's regulations and instructions cannot enlarge the coverage provided Whaley by the policy on his own individual car, a Plymouth. To hold otherwise would permit Whaley to benefit from his own wrongful conduct. A different basis of decision must be found.
In Iowa Mutual Insurance Company v. Addy, 132 Colo. 202, 286 P.2d 622, the "Use of other automobiles" clause under consideration provided, inter alia, it did not apply to any other automobile furnished for regular use to the named insured. The question was whether the policy, which specifically described an Oldsmobile owned by the insured, provided coverage to the insured with reference to a liability he incurred while operating his employer's Chevrolet. The employer, a casualty company, had provided the Chevrolet for the insured's use as a claim adjuster. The insured used the Chevrolet daily in his employer's business and, with his employer's knowledge and consent, kept it at his home overnight. On Thanksgiving Day the insured was involved *498 in an accident while en route to the home of friends "across the City of Denver," with whom the insured, his wife and their children were to have dinner. The court held the policy did not cover the insured's liability and reversed the judgment the plaintiff (insured's wife) had obtained in the trial court. The opinion of Holland, J., states: "It is undisputed and undenied that the automobile in which plaintiff was riding was furnished her husband for his regular use in his employment. Such automobile by a provision of paragraph V(b) (1) of the policy is excluded, because the provisions are clear that the insuring agreement did not apply to any automobile `furnished for the regular use to the named insured.'" This Colorado decision is discussed in Ransom v. Fidelity & Casualty Co., 250 N.C. 60, 108 S.E.2d 22, with particular reference to the "Temporary Substitute Automobile" clause. Here it was stipulated Firestone's Ford "was not a temporary substitute automobile as that term is used in the policies issued by the defendants" to Whaley.
In our view, coverage depends upon the availability of the Ford for use by Whaley and the frequency of its use by Whaley. Rodenkirk for Use of Deitenbach v. State Farm Mut. Automobile Ins. Co., 325 Ill.App. 421, 60 N.E.2d 269; Vern v. Merchants Mut. Casualty Co., 21 Misc. 2d 51, 118 N.Y.S.2d 672. It was "furnished" to Whaley by Firestone in the sense it was placed and continued under Whaley's authority and control. It was available for use by Whaley over an extended period and was used by him "on numerous occasions." The stipulated facts dispel any suggestion that Whaley's use of the Ford "for his own personal business and pleasure," was casual, occasional or infrequent. The stipulated facts establish that Whaley regularly used the Ford "for his own personal business and pleasure" as well as "in the conduct of the company's business." It is our opinion, and we so decide, that Firestone's Ford was "furnished for regular use to" Whaley within the meaning of the policy.
The factual situation is quite different from those considered in Miller v. Farmers Mutual Automobile Insurance Co., supra, and Comunale v. Traders & General Ins. Co., 116 Cal. App. 2d 198, 253 P.2d 495, where it was held the evidence sustained the trial court's findings that the car the insured was driving at the time of the accident was not furnished for his regular use.
Decisions cited and stressed by plaintiffs, discussed below, are factually distinguishable. We perceive no conflict between these decisions and our present decision. In this jurisdiction, the question appears to be one of first impression.
In Pacific Automobile Ins. Co. v. Lewis, 56 Cal. App. 2d 597, 132 P.2d 846, the accident occurred when Wells, by express permission of the sales manager, was driving his employers' car from San Diego to Pomona to make a personal visit. Wells, a salesman for a San Diego automobile agency, had been permitted to use his employers' cars as demonstrators and at times for personal purposes in the San Diego area. He had not on any previous occasion taken an automobile belonging to his employers away from the vicinity of San Diego. It was held that Wells' liability to Lewis, an injured party, was covered under the "drive other cars" provision in policies which provided principal coverage for automobiles not involved in the accident. The basis of decision is indicated by this excerpt from the opinion: "* * * But when a car thus furnished for such a use is driven to a distant point on one occasion, with the special permission of the one furnishing the car, that particular use would hardly seem to be a `regular use' of the car. It cannot be said, as a matter of law, that such a use on a particular occasion, which is a departure from the customary use for which the car is furnished, is a regular use within the meaning of these clauses of the policies. * * *" (Our italics)
*499 In Palmer v. Glens Falls Insurance Company, 58 Wash.2d 88, 360 P.2d 742, the opinion, referring to Pacific Automobile Ins. Co. v. Lewis, supra, states: "There, a salesman, who regularly drove a company automobile in his employment, was held not to be engaged in the regular use of it on a special occasion when, by special permission for one occasion only, he was permitted to take it for a private purpose on a personal visit." In accord with Pacific Automobile Ins. Co. v. Lewis, supra, it was held: "An agreement for a regular use of an automobile does not, in fact, preclude a special use of a different nature if it is specifically authorized for one occasion only." (Our italics)
In Schoenknecht v. Prairie State Farmers Ins. Ass'n, 27 Ill.App.2d 83, 169 N.E.2d 148, the policy involved specifically insured the plaintiff's Buick. The accident occurred May 2, 1957, about 11:00 p. m., when plaintiff was driving his employer's Chevrolet. The employer furnished plaintiff the Chevrolet for use in the performance of the duties of his employment. When the accident occurred plaintiff, in violation of his duty to return the Chevrolet to his employer's shop at the conclusion of each day's work, was using the Chevrolet for personal purposes. It was held the plaintiff's liability was covered by the "Use of Other Automobiles" clause in his policy. This excerpt from the opinion indicates the basis of decision: "Plaintiff was furnished this car (the Chevrolet) for his sole use in connection with the business of his employer during his working hours. He had never used the car to take him anywhere except upon the business of his employer and during his working hours. The only time he had ever used it was during his working hours and in furtherance of his employer's interest except on the occasion in question. The use of this car at this time was under the authorities, an isolated, casual, unauthorized use of an automobile other than his own and comes within the insuring agreements of this policy designated `use of other automobiles'."
In Sperling v. Great American Indemnity Company, 7 N.Y.2d 442, 199 N.Y.S.2d 465, 166 N.E.2d 482, the policy issued to Mrs. Nystrom specifically covered her Buick. A Chevrolet, parked on a public street, was stolen by Christine, Mrs. Nystrom's 16-year-old daughter; and an accident occurred while Christine was operating the stolen car. In a wrongful death action, the plaintiff recovered a judgment against Christine for approximately $125,000.00. The plaintiff contended Christine was an insured under the following provisions (under the heading "Persons Insured") of the policy:
"The following are insureds under Part I [Liability]:
"(a) With respect to the owned automobile, (1) the named insured and any resident of the same household, (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured;
"(b) With respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or trailer not regularly furnished for the use of such relative."
The term "non-owned automobile" was defined as meaning "an automobile or trailer not owned by the named insured or any relative, other than a temporary substitute automobile."
The Court of Appeals, in a four to three decision, held the judgment debtor was covered while operating a stolen car because she was a relative and driving a private passenger car not regularly furnished for her use. As stated by Hastie, J., in Home Indemnity Company v. Ware, 3 Cir., 285 F.2d 852, "* * * the dissenters derived a contrary meaning from the language of the policy. In their view the expression `not regularly furnished' for the use of a relative means `occasionally furnished' for his use, and no more than *500 that. Under this analysis a stolen car, which is not `furnished' at all, is excluded entirely from the coverage of the policy." The majority view was that the manner in which Christine acquired the Chevrolet was irrelevant. The majority opinion states: "The exclusion of coverage for relatives driving nonowned automobiles was, by its terms, concerned with regularity of use, not permissiveness of use, and was designed to protect the company from being subjected `to greatly added risk without the payment of additional premiums' (Vern v. Merchants Mut. Cas. Co., 21 Misc. 2d 51, 52, 118 N.Y.S.2d 672, 674)."
Whatever the correct view with reference to the policy provisions and facts considered in Sperling, the stolen (Chevrolet) car was operated by Christine only on one occasion. It had not been regularly used by her nor had it been available for her use. It would seem such a policy would not provide coverage if the "non-owned automobile," although a stolen car, had been available for regular use and had been so used.
Upon the stipulated facts it is our opinion, and we so decide, that the policy issued by the Insurance Company of North America to Whaley, providing principal coverage for Whaley's Plymouth, did not cover the liability incurred by Whaley while operating Firestone's Ford on the occasion of the collision. Hence, the portion of the judgment providing that plaintiffs "recover nothing of the defendant Insurance Company of North America," is affirmed.
Great American's Appeal.
Great American's appeal is from the portion of the judgment providing that plaintiffs "have and recover of Great American Insurance Company the sum of $7,770.00," together with interest and costs.
The liability, if any, of Great American must be based on the following provisions of its policy:
"Persons Insured. The following are insureds under Part 1:
"(a) With respect to the owned automobile,
"(1) * * *
"(2) * * *
"(b) With respect to a non-owned automobile,
"(1) the named insured,
"(2) any relative, but only with respect to a private passenger automobile or trailer,
provided the actual use thereof is with the permission of the owner;
"(c) * * *."
The term "non-owned automobile," as used in (b) under "Persons Insured," and as defined in the policy, "means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile." It was stipulated Firestone's Ford "was not a temporary substitute automobile."
The "owned automobile" referred to in (a) was Whaley's Plymouth. The policy provided coverage if, but only if, Firestone's Ford operated by Whaley was a "non-owned automobile" as defined in the policy. Kirk v. Nationwide Mutual Insurance Co., 254 N.C. 651, 655, 119 S.E.2d 645, and cases cited. A "non-owned automobile" was an automobile "not * * * furnished for the regular use" of Whaley.
Upon the stipulated facts, and for the reasons stated in connection with our consideration of plaintiffs' appeal, we are of opinion, and so decide, that Firestone's Ford was furnished for the regular use of Whaley within the intent and meaning of the policy; and that Great American's policy, providing principal coverage for Whaley's Plymouth, did not cover the liability incurred by Whaley while operating *501 Firestone's Ford on the occasion of the collision. Hence, the portion of the judgment providing that plaintiffs recover from Great American must be and is reversed.
In view of the conclusion(s) reached, we do not discuss other defenses asserted by defendants or the evidence pertinent thereto.
On plaintiffs' appeal: Affirmed.
On Great American's appeal: Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743604/ | 710 N.W.2d 258 (2005)
EGGIMAN v. SELF-INSURED SERVICES CO.
No. 05-0246.
Court of Appeals of Iowa.
November 23, 2005.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725167/ | 197 So. 2d 12 (1967)
H.M. COVERT, Appellant,
v.
TERRI AVIATION, INC., a Delaware Corporation, and George Barrie, Individually, Appellees.
No. 66-365.
District Court of Appeal of Florida. Third District.
March 21, 1967.
Robert M. Palmer, Miami, for appellant.
Frates, Fay, Floyd & Pearson, Miami, for appellees.
Before HENDRY, C.J., and CARROLL and BARKDULL, JJ.
*13 HENDRY, Chief Judge.
Plaintiff, H.M. Covert, appeals from an order dismissing his third amended complaint with prejudice as to the defendants, Terri Aviation, Inc. and George Barrie, individually
On June 1, 1963, Terri Aviation, Inc. entered into a written contract with Covert wherein Covert was hired to sell one DC6B aircraft N 37569 to Compagnia Dominicana d'Aviacion. The contract provided that Covert was to receive $15,000.00 from Terri Aviation on the day that financing had been completed and monies disbursed.
In his third amended complaint, Covert alleges that on July 1, 1963, the contract was orally modified by the parties so that Covert would be paid the $15,000.00 immediately upon the signing of a contract between Terri Aviation and Compagnia Dominicana d'Aviacion, and that he did arrange for and deliver a signed contract. It is further alleged that Terri Aviation has refused his demand for $15,000.00 commission as agreed upon.
As a second cause of action, Covert alleges that George Barrie is the controlling stockholder of Terri Aviation and that Barrie did maliciously induce Terri Aviation to break its agreement with Covert. Whereby he demands compensatory and punitive damages against Barrie individually.
In testing the sufficiency of a complaint, all well pleaded allegations must be accepted as true.
The trial court correctly dismissed the second cause of action with prejudice against George Barrie, individually. Barrie, acting as a representative of Terri Aviation can not be sued in tort for allegedly procuring a breach of contract by Terri Aviation. See Days v. Florida East Coast Railway Company, Fla.App. 1964, 165 So. 2d 434.
Accepting the allegations of the complaint as true, we hold that it does state a cause of action against Terri Aviation. Therefore, the trial court erred in dismissing the complaint as to the cause of action for breach of contract against Terri Aviation. That portion of the order dismissing the complaint against George Barrie, individually, is affirmed; that portion of the order dismissing the complaint against Terri Aviation is reversed and the cause remanded for further proceedings.
Affirmed in part, reversed in part and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336422/ | 194 Ga. App. 465 (1990)
390 S.E.2d 673
THE STATE
v.
BROOKS.
A89A1827.
Court of Appeals of Georgia.
Decided February 12, 1990.
Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Judith C. Emken, Assistant Solicitors, for appellant.
William M. Davidson, Stephen P. Fuller, for appellee.
COOPER, Judge.
On August 6, 1988, a police officer stopped the vehicle appellee was driving and issued to appellee uniform traffic citations for speeding, driving under the influence, and driving with a suspended license (OCGA § 40-5-121). The solicitor filed an accusation in October 1988, charging appellee with the same violations, to which accusation appellee filed a general demurrer in February 1989, contending that the count accusing him of driving with a suspended license was fatally defective. After conducting a hearing on the matter, the trial court granted the demurrer and dismissed that count of the accusation. The State appeals from the trial court's action.
Appellee contended, and the trial court ruled, that the arresting officer's failure to comply with OCGA § 40-5-121 (b) (1) (1988) resulted in a statutorily-mandated end to the prosecution. The version of OCGA § 40-5-121 (b) (1) in effect when the citations were issued and the accusation filed provided that "[t]he charge of driving with a suspended license shall not be made unless the arresting officer has verified a service date and such date is placed on the Uniform Citation."[1]*466 It is undisputed that the arresting officer did not verify the service date and place it on the uniform traffic citation issued to appellee for driving with a suspended license. Thus, under the clear mandate of that version of the statute then in effect, no charge of driving with a suspended license could be made against appellant.
Actual or legal notice to the defendant of the suspension of his license is an element of the offense of driving while his license is suspended. State v. Orr, 246 Ga. 644 (272 SE2d 346) (1980). Requiring an officer to verify and record when a driver received actual or legal notice of the license suspension before charging the driver with driving while his license is suspended may, as the State believes, "produce absurd results." However, the requirement at issue was the law of this State for nine months, and we may not sanction noncompliance because we perceive it to be unnecessary or cumbersome. Inasmuch as the Legislature has amended the statute, the "absurd result" has a definitively short life span.
The State argues that it was prosecuting appellee under OCGA § 40-5-121 (a), not § 40-5-121 (b). Subsection (a) sets forth the offense of driving while a license is suspended or revoked, and subsection (b) states when the charge of driving with a suspended license cannot be made. A prosecution must be made under subsection (a) since it sets forth the offense; however, no prosecution for driving with a suspended license can proceed without reference to and compliance with subsection (b). Subsection (a) cannot, as the State wishes, be read in a vacuum.
Judgment affirmed. Deen, P. J., and Birdsong, J., concur.
NOTES
[1] The version of the statute now in issue was in effect from July 1, 1988 until April 10, 1989. The current statute requires such verification only where the license suspension is the result of a failure to respond to a citation (OCGA § 40-5-56) or an insurance cancellation. See OCGA § 40-5-121 (b) (1) (1989); Ga. L. 1989, p. 519, § 15. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336281/ | 108 Ga. App. 74 (1963)
131 S.E.2d 799
ROSS
v.
PANTER.
40010.
Court of Appeals of Georgia.
Decided June 19, 1963.
William Butts, Herman J. Spence, T. H. Crawford, H. G. Vandiviere, H. L. Buffington, Jr., for plaintiff in error.
Robert K. Ballew, contra.
FRANKUM, Judge.
Mrs. Bonnie Mae Panter sued Carl Ross for the value of the life of her seven-year-old daughter who was killed when she was struck by the defendant's automobile while being driven by his son. It was alleged in the petition and admitted on the trial of the case that the defendant's vehicle was a family purpose car and was being used as such by his son at the time and place of the homicide. Briefly stated, it appears from the facts alleged and from the evidence that the deceased child was, on June 16, 1961, at about 8:10 p. m., walking with the plaintiff along the southerly shoulder of a public highway in Fannin County at a point just a few yards east of where said highway crosses Blue Ridge Dam. The weather at the time was *75 cloudy, and the road at that place was somewhat within a cut and overhung by the limbs and foliage of trees. The plaintiff alleged that the defendant's son was operating the defendant's automobile in a westerly direction at a speed in excess of 60 miles per hour as he approached the point where the deceased was walking; that at said time and place he was operating the automobile without having thereon any headlights or other illumination; that the deceased, under the supervision of the plaintiff, endeavored to cross the highway and was struck by the defendant's automobile as she reached a point near the center line of the highway and instantly killed. The petition charged the defendant's son with negligence in operating the automobile without headlights; in operating it in excess of 60 miles per hour and at a speed that was greater than was prudent under the conditions then existing; in not having the vehicle under reasonable control; in failing to keep a proper lookout ahead so as to avoid striking the deceased; in failing to avoid striking her, and in failing to sound the horn of the automobile or to make any other kind of alarm so as to warn of the approach of the vehicle.
Upon the trial of the case the jury returned a verdict for the plaintiff. The defendant made a motion for a new trial on the general grounds and amended it by the addition of 7 special grounds. The trial court overruled that motion, and one of the assignments of error before this court is to that judgment. Plaintiff in error also assigns error in his bill of exceptions on the judgment overruling his special demurrers to an amendment to the plaintiff's petition.
We have examined the assignments of error contained in the general and special grounds of the motion for new trial and the assignment of error on the overruling of the special demurrers to the amendment to the petition, and find no harmful or reversible error in any of them except in the seventh special ground of the motion. That ground assigns error because the trial court failed to give to the jury, without request, instructions on the duty of the plaintiff herself to exercise ordinary care in protecting her daughter from the negligence, if any, of the defendant's son. The evidence showed that the plaintiff was walking along the shoulder of the said public road holding the hand of her daughter. *76 She had charge of the child and was actively supervising her activities at the time and place. The jury would have been authorized to find that the plaintiff released the child's hand for her to run across the road at a time when, in the exercise of ordinary care, she could have seen the defendant's automobile approaching and in such close proximity as to create an immediate hazard of its colliding with the child. The evidence thus presented a jury issue as to whether Mrs. Panter, the plaintiff, exercised ordinary care to protect her daughter from the negligence of the defendant's son, if any. Woodham v. Powell, 61 Ga. App. 760 (7 SE2d 573). This issue was also presented by the pleadings, since the defendant, in his answer, denied that his son was negligent in operating the automobile or that his negligence was the proximate cause of the death of the plaintiff's daughter. Under this plea it was permissible for the defendant to show that the child's death was caused by anything other than the negligence of his son, including that it resulted solely from the failure of the plaintiff to exercise ordinary care in avoiding the effects of his son's negligence in operating the automobile. Russell v. Bayne, 45 Ga. App. 55, 57 (2) (163 S.E. 290). Accordingly, it was error for the court to fail to instruct the jury as contended in special ground 7, and this error requires a reversal of the case.
Judgment reversed. Nichols, P. J., and Jordan, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336312/ | 108 Ga. App. 113 (1963)
131 S.E.2d 859
HEMBREE
v.
CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION.
40202.
Court of Appeals of Georgia.
Decided June 26, 1963.
Rich, Bass & Kidd, Charles T. Bass, for plaintiff in error.
King & Spalding, William H. Izlar, Jr., contra.
*115 CARLISLE, Presiding Judge.
1. "In the absence of fraud, findings of fact made by the director and approved on appeal by the full board are binding on the court if there is any evidence to support them; and, where no error of law appears, such findings will not be disturbed on appeal." Fleming v. Fidelity &c. Co., 89 Ga. App. 405 (1) (79 SE2d 407). Garrett v. Employers Mutual Liab. Ins. Co., 105 Ga. App. 308 (1) (124 SE2d 450). The evidence authorized the finding that the claimant suffered no injury and disability by reason of his alleged fall.
2. At the hearing, the record was left open 30 days for the purpose of completing medical testimony, and the depositions of Dr. Marvin A. Mitchell, entitled in the cause, were taken in behalf of claimant after the hearing under the following stipulation: "All objections to the questions, with the exception *114 to form, will be noted at this time, however, the deponent will answer the question asked and the director will pass upon the legitimacy of the question at the time the director or deputy director reads the deposition," and the depositions of Dr. Floyd W. Morgan, entitled in the cause, were taken in behalf of the claimant after the hearing under the following stipulation: "That objections would be made for the record with rulings thereon to be made by the deputy director, before whom the case was heard, at the time she reads the testimony." Attorney for claimant also dictated for the stipulation the following: "The form of the question will be passed on by the deputy director when she reads the deposition . . . it is to be used in evidence for the claimant in the Workmen's Compensation Board." While it does not appear that these depositions were formally introduced in evidence, it appears that they were taken by the claimant for the purpose of being submitted to the director and to the board when taken, and that it was contemplated between the parties acting by and through their attorneys that the depositions would be used as evidence in the case and that they were transmitted to the board. Under these circumstances the director and the board properly considered the depositions as evidence in the case, Fleming v. Fidelity &c. Co., 89 Ga. App. 405 (2), supra, and the claimant will not be heard to complain. The case of Smith v. Continental Cas. Co., 102 Ga. App. 559 (2) (116 SE2d 888) relied upon by claimant is not applicable to the present case in view of the agreement of counsel and that they were taken in behalf of the objecting party and that the board ordered the record held open for 30 days for the express purpose of receiving medical testimony. One of the cases cited, Bowie v. Findly, 55 Ga. 604, to sustain the ruling in Smith expressly noted an exception "unless there is some order or agreement of parties to the contrary."
3. It follows that the judge of the superior court did not err in affirming the action of the Board of Workmen's Compensation in affirming the findings and award of the single director.
Judgment affirmed. Bell and Hall, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336314/ | 218 Ga. 858 (1963)
131 S.E.2d 176
BYCK
v.
LAWTON et al.
21990.
Supreme Court of Georgia.
Argued March 12, 1963.
Decided April 16, 1963.
Rehearing Denied May 13, 1963.
*860 Aaron Kravitch, Sylvan A. Garfunkel, for plaintiff in error.
Richardson, Jones & Doremus, Richardson & Doremus, contra.
MOBLEY, Justice.
1. (a) We first consider the questions presented by defendant's demurrers to plaintiffs' replication to defendant's cross-bill. Defendant demurs generally to the replication as a whole on the grounds that it fails to set up an issuable defense, attempts to raise questions already adjudicated adversely to plaintiffs by this court, and fails to set forth facts to meet the previous decision of this court. The replication denies certain paragraphs of the cross-bill relating to the value of the property here in question. For this reason alone it sets up an issuable defense and raises a question not previously adjudicated by this court, and the court therefore did not err in overruling the three grounds of general demurrer to the replication as a whole. Fraser v. Jarrett, 153 Ga. 441, 442 (5) (112 S.E. 487); Tietjen v. Meldrim, 169 Ga. 678 (1) (151 S.E. 349); Cherry v. Cherry, 208 Ga. 213, 215 (1) (65 SE2d 805). Further, the cross-bill alleges that the defendant in good faith verily believed that plaintiffs were owners of the property listed in the option and the replication denies this allegation and sets forth facts tending to show that defendant did not in good faith believe that plaintiffs were the owners of the property listed in the option but had actual and constructive knowledge that the plaintiffs did not own the 6 acres, the value of which is here in dispute. Defendant insists that by these allegations in the replication the plaintiffs are attempting to relitigate the questions of fraud and mutual mistake which were adjudicated adversely to them on the previous appearance of this case in Lawton v. Byck, 217 Ga. 676 (124 SE2d 369), and that the law of the case as established by the judgment of this court in that case precludes plaintiffs from so doing. We cannot agree with defendant *861 on this point. All that the decision in Lawton v. Byck, supra, established by affirming the trial court's judgment sustaining general demurrers to plaintiffs' petition was that the petition set forth no reason sufficient in law to avoid the option. That decision made no adjudication with reference to the right of the defendant to maintain by way of cross-bill his action seeking specific performance of the option. "Specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Mere inadequacy of price may justify a court in refusing to decree a specific performance of a contract of bargain and sale; so also may any other fact showing the contract to be unfair, or unjust, or against good conscience." Williams v. Hudgens, 217 Ga. 706, 710 (4) (124 SE2d 746); Code § 37-805. It is axiomatic that one who seeks the aid of a court of equity must come into court with clean hands. See Griffith v. City of Hapeville, 182 Ga. 333 (2) (185 S.E. 522). The allegations of the replication in denial of the allegation in the cross-bill of defendant's good faith are not subject to the general demurrers as they relate to the question of whether or not it would be strictly equitable and just for equity to grant specific performance.
(b) Defendant specially demurred to a certain paragraph of the replication on the ground that it was vague, ambiguous, and indefinite, and to another paragraph on the ground that the allegations therein were irrelevant and immaterial to the issues in the case. A special demurrer being a critic must itself be free from criticism. These grounds of special demurrer which fail to point out wherein or how the allegations are subject to the criticisms advanced are themselves subject to the criticism that they are too vague and indefinite and therefore raise no question for decision by this court. Veal v. Beall, 189 Ga. 31 (2) (5 SE2d 5). The trial court did not err in overruling the sixth ground of demurrer, a ground of special demurrer, as to paragraphs 12 through 21 and paragraph 23 of the replication for the reasons given in Subdivision (a) above. No assignment of error is before this court as to the sustaining of the sixth ground of demurrer to paragraph 22 of the replication.
*862 2. Since special grounds 1, 2, 3, 9 and 11 of the amended motion for new trial are controlled by a single principle of law, they may be conveniently dealt with in one division of this opinion. Special ground 1 complains of the trial court's charging as contentions of the plaintiffs 11 paragraphs of the plaintiffs' replication, including paragraph 22 which was stricken by the sustaining of defendant's special demurrer number 6 as to that paragraph, the substance of these paragraphs being that Sylvan A. Garfunkel as attorney for and as partner of the defendant prepared the option and included therein 6 acres of tract C-3 with knowledge that the plaintiffs did not own them and could not convey them, paragraph 22 concluding that this constituted "actual fraud perpetrated upon the plaintiffs." Special grounds 2 and 3 complain of the court's charging that if the defendant through his agent knew of the plaintiffs' lack of title to a portion of tract C-3 but wilfully and intentionally included it in the option contract drawn by him through his agent, he could not take advantage of this deficiency in acreage. Special ground 9, an amplification of the general grounds, complains that the verdict is contrary to the law and evidence in that there was no evidence of an emergency or condition authorizing the plaintiffs to rely on the alleged fraudulent representations of defendant. Special ground 11 complains of the admission of testimony as to mutual mistake.
Each of these grounds relates either to the question of whether or not specific performance of the option contract should be decreed or to whether or not there should be a reduction in the purchase price; none relates to the question of the amount of such reduction in purchase price in the event the jury should find for specific performance and for a reduction in purchase price. Since the trial court directed the jury to find for specific performance and the jury found the defendant entitled to a reduction in purchase price, the defendant is the prevailing party on these issues and could not have been harmed by the rulings of the trial court with respect to the above-enumerated grounds of his amended motion for new trial. Harrison v. Hester, 160 Ga. 865 (3) (129 S.E. 528); Holcombe v. Jones, 197 Ga. 825, 826 (3) (30 SE2d 903); Avary v. Avary, 202 Ga. 22 (1) (41 SE2d *863 314); McKenney v. Woodbury Banking Co., 208 Ga. 616 (2) (68 SE2d 571).
3. The fourth special ground of the amended motion complains of the trial court's charging the jury that if they found for a reduction in the purchase price, the form of their verdict should be, "We, the jury, find for the specific performance of the contract, and the sum to be paid shall be so many dollars," on the ground that by that charge the jury was told to find the value of the property which could be delivered, while the true issue was the value of the property which could not be delivered. Code § 37-806. The jury asked for a recharge on the subject of the form of its verdict and the court instructed them to disregard the form it had previously given them because it might be subject to some misunderstanding, and instructed them that if they found for a reduction in purchase price, the form of their verdict would be, "`We, the jury, find in favor of the specific performance of the contract. We further find that the purchase price should be reduced by the sum of blank dollars,' whatever amount you find the value of that property to be that has been lost due to a defect in the title." The ground is not meritorious, as the court gave the correct form of the verdict to the jury on recharge and specifically admonished the jury to disregard the former charge on the ground that the form of the verdict suggested thereby might be subject to some misunderstanding. Central of Ga. R. Co. v. Ray, 133 Ga. 126 (1) (65 S.E. 281); Chauncey v. Barlow, 166 Ga. 156 (3) (142 S.E. 673); Lubeck v. Dotson, 192 Ga. 258 (1) (15 SE2d 205); Davis v. Guffey, 196 Ga. 816, 817 (27 SE2d 689); Poythress v. Poythress, 213 Ga. 882, 884 (6) (102 SE2d 607); Seaboard Air Line R. Co. v. Taylor, 214 Ga. 212, 219 (11) (104 SE2d 106). The court properly overruled this ground.
4. Special grounds 5, 6, and 7 of the amended motion complain of the failure of the trial court to give certain written requests to charge, and special ground 8 complains of the court's failure to charge certain matters without request. Before this court can rule that a certain charge should have been given, it must ascertain whether the evidence would authorize the giving of the charge, as it is error to give a charge which is not authorized *864 by the evidence. Bethune v. McCrary, 8 Ga. 114 (2); Betts v. State, 157 Ga. 844 (3) (122 S.E. 551); Martin v. Smith, 211 Ga. 600, 605 (3) (87 SE2d 406). A ground of a motion for new trial which requires a consideration of the evidence must either set forth the evidence relied upon or point out where in the record such evidence may be found. Code Ann. § 6-901; Maxwell v. Hollis, 214 Ga. 358 (1) (104 SE2d 893). Since the above-mentioned grounds neither set forth the evidence which would have authorized the giving of the charges nor specify where in the record it may be found, they are not in proper form, are incomplete and insufficient to raise any question for decision. Maxwell v. Hollis, 214 Ga. 358 (1), supra; Singleton v. Singleton, 202 Ga. 269, 270 (4) (42 SE2d 737); Martin v. Smith, 211 Ga. 600, 605 (3), supra; Hodges v. Gay, 100 Ga. App. 210 (1) (110 SE2d 570); King v. Mayor &c. of Savannah, 105 Ga. App. 701, 702 (3) (125 SE2d 552).
5. There is no merit in special ground 10 which complains of the refusal of the trial court to restrict the case to one issue, the value of the 6 acres not owned by plaintiffs, as the issue of whether the optionee was entitled to have the option specifically performed was an issue for the jury's determination.
6. We now reach the general grounds. While there was evidence that the portion of the tract which could not be conveyed was more valuable than the portion that could be conveyed, that the portion which could not be conveyed was sold in 1960 for $15,000 and this was a fair price for it, there was also evidence that all of the land in the tract was of the same relative value, that the purchase price was to have been $23,000 for the entire parcel of about 55 acres, and that the portion of the parcel which plaintiff was unable to convey was about 6 acres. There being therefore some evidence to support the verdict of the jury that the purchase price should be reduced by the amount of $2,588, we must affirm the trial court's denial of the general grounds of the motion for new trial. Adler v. Adler, 207 Ga. 394, 405 (7) (61 SE2d 824).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336315/ | 242 S.C. 397 (1963)
131 S.E.2d 257
The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant,
v.
W.K. SHARPE, Respondent.
18071
Supreme Court of South Carolina.
May 16, 1963.
*398 Messrs. Daniel R. McLeod, Attorney General, and J. McNary Spigner, Assistant Attorney General, of Columbia, and Francis R. Fant, and Paul K. Rogers, of Anderson.
Messrs. Watkins, Vandiver, Freeman & Kirven, of Anderson, for Respondent.
*399 Messrs. Daniel R. McLeod, Attorney General, and J. McNary Spigner, Assistant Attorney General, of Columbia, and Francis R. Fant, and Paul K. Rogers, of Anderson, for Appellant, in Reply.
May 16, 1963.
BUSSEY, Justice.
This is a highway condemnation case arising out of the acquisition in Anderson County of a portion of the right-of-way for the construction of the Interstate Highway designated as I-85. A trial de novo was held before his Honor Judge Spruill and a jury and upon this trial one of the attorneys for the landowner in his opening argument to the jury said:
"You should be fair to the landowner, to the state government, and to the Federal government."
Counsel for the Highway Department objected to the reference to the Federal government. Thereupon, in the presence of the jury, landowner's counsel, in an effort to justify his statement and without awaiting a ruling said:
"It is common knowledge that the Federal government pays nine tenths of the verdict in these cases."
Counsel for the Highway Department then repeated his objection and moved for a mistrial upon the ground that *400 remarks of counsel were prejudicial to the Department. This motion was argued in the absence of the jury and overruled, following which the trial judge fully instructed the jury that the remarks of counsel for the landowner were improper and that the jury should disregard them.
After verdict for the landowner, a motion for a new trial was made by the Highway Department on the same ground, and overruled. In his order overruling the motion for a new trial, the court, inter alia, had the following to say:
"When the jury was called back it was instructed that counsel's statement was improper and that the members of the jury should disabuse their minds of any such consideration.
"In view of the case of Johnson v. South Carolina State Highway Department, 236 S.C. 424, 114 S.E. (2d) 591, there seems to be no question that counsel's argument was improper."
The trial court then went on to point out that while the verdict was a liberal one, it was well within the limits justified by the testimony in behalf of the landowner, and that in the opinion of the trial court, the Highway Department had suffered no substantial prejudice by reason of counsel's statement.
The appellant, in support of its contention that the circuit judge should have ordered a mistrial, relies upon cases such as Horsford v. Carolina Glass Co., 92 S.C. 236, 75 S.E. 533, wherein it has been repeatedly held that it is improper to bring to the attention of the jury the existence of liability insurance; arguing that it is just as prejudicial for it to be brought to the attention of the jury that the Federal government will participate in the payment of a verdict. Appellant also relies strongly on Johnson v. South Carolina Highway Dept., supra.
In the Johnson case the appellant landowner charged that the trial court committed error in refusing to allow evidence that the highway there involved was being financed by the *401 U.S. Government. The holding of this court was simply to uphold the ruling of the trial judge in excluding the proffered evidence, the court saying that the sole question for determination was what compensation, if any, the landowner was entitled to for the taking of his property. The court there also said that the source of the funds for the payment of the verdict in this case was not an issue in the trial. Thus it will be seen that while the Johnson case is authority for the proposition that the argument or statements of counsel here were improper, that case was not concerned with whether the disclosure of Federal participation would constitute such prejudicial error as to warrant or require declaring a mistrial.
The precise question as to whether disclosure of Federal participation is prejudicial was involved in the recent Georgia case of State Highway Department v. J.A. Worley & Co., 103 Ga. App. 25, 118 S.E. (2d) 298, and we quote the following from the opinion in that case:
"The condemnor contends that the mention of the Federal government participating in the construction of the highway project automatically prejudiced the jury, and that they would therefore return a larger verdict than had the State alone been constructing the highway. Such argument is without merit for the jury consisted of taxpayers to both the State and Federal governments. Whether the State or the Federal government was paying the judgment it was still being paid out of tax money, tax money paid by the public. To hold that the mention of the Federal government was prejudicial would mean that in all cases where the Federal government acted as condemnee no fair trial could ever be had. This ground of the motion for new trial is without merit."
No other authority dealing with the precise question has been cited or come to our attention.
As to granting or denying a motion for a mistrial we quote the following from the case of Wynn v. Rood, 228 S.C. 577, 91 S.E. (2d) 276:
*402 "It is well settled that the granting of a motion for a mistrial by reason of anything occurring during the trial of a case is in the sound discretion of the trial Judge, and his ruling thereabout will not be disturbed unless there has been an abuse of discretion."
See also cases of Rogers v. Florence Printing Co., 233 S.C. 567, 106 S.E. (2d) 258; McCrae v. McCoy, 214 S.C. 343, 52 S.E. (2d) 403; State v. Homewood, 241 S.C. 231, 128 S.E. (2d) 98.
The question before us, therefore, becomes simply whether or not there was an abuse of discretion on the part of the trial judge in failing to order a mistrial. As pointed out in the case of Bridges v. Wyandotte Worsted Co., 239 S.C. 37, 121 S.E. (2d) 300, and the many cases therein cited, the term "abuse of discretion" has no opprobious implication and means nothing more or less than that the ruling of the trial court was without reasonable factual support, resulted in prejudice to the rights of the appellant, and, therefore, in the circumstances, amounted to an error of law.
There is no contention before us that the verdict of jury here was excessive, and nothing else to show any prejudice to the Department other than the contention that the mere mention of the fact and extent of Federal participation was ipso facto prejudicial as a matter of law. We agree with the conclusion arrived at by the Georgia Court in the case of State Highway Department v. J.A. Worley & Co., supra, that the mere mention of Federal participation is not automatically prejudicial as a matter of law. On the other hand, Federal participation, or the extent thereof, is not an issue in a case such as this and the injection thereof into the case by counsel was improper. Such should be scrupulously avoided because it is quite possible for such to be injected in such a manner as to constitute prejudice and require the granting of a mistrial or a new trial.
*403 Here, however, we think the trial judge correctly concluded that there was no prejudice, even though the statements by counsel were improper. The entire colloquy between counsel resulted from a relatively simple request to the jury by counsel for the landowner for fairness to all parties directly concerned or indirectly affected. The judge promptly excused the jury and, upon their recall, fully and properly instructed them to disregard the improper remarks of counsel.
Under all of the circumstances, we fail to see where there was an abuse of discretion on the part of the trial judge, amounting to an error of law, in failing to order a mistrial or to thereafter order a new trial.
The only other question presented by this appeal is whether or not the landowner is entitled to interest on the verdict or the judgment entered thereon. This question has been decided adversely to the landowner in the case of South Carolina State Highway Department v. Schrimpf, (S.C.) 131 S.E. (2d) 44.
Affirmed, without interest.
TAYLOR, C.J., and MOSS, LEWIS and BRAILSFORD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336298/ | 131 S.E.2d 456 (1963)
259 N.C. 520
N. H. GODWIN, Trustee for Angier Avenue Baptist Church, et al.
v.
WACHOVIA BANK & TRUST COMPANY, Executor Under the Purported Last Will and Testament of Frank C. Griffin, Deceased, Charlie C. Griffin and Essie Lenora Griffin Stevenson.
No. 670.
Supreme Court of North Carolina.
June 14, 1963.
*460 Bryant, Lipton, Bryant & Battle, Durham, for plaintiff appellant.
Spears, Spears & Barnes, Durham, for defendants appellees.
DENNY, Chief Justice.
It is universally recognized in this country that a power of attorney, unless coupled with an interest, is terminated by the death of the principal. The power of attorney involved in this case was not coupled with an interest and was revoked upon the death of Nell J Griffin. Fisher v. Southern Loan & Trust Co., 138 N.C. 90, 50 S.E. 592; Citizens Bank v. Grove, 202 N.C. 143, 162 S.E. 204; Dowling v. Winters, 208 N.C. 521, 181 S.E. 751; Julian v. Lawton, 240 N. C. 436, 82 S.E.2d 210.
The execution of the trust agreement under consideration was not acknowledged as required by G.S. § 52-12. Even so, Chapter 1178 of the 1957 Session Laws of North Carolina purports to cure this defect. The Act, which became effective 10 June 1957, provides: "Any contract between husband and wife coming within the provisions of G.S. § 52-12 executed between July 1, 1955 and the effective date of this Section which does not comply with the requirement of a private examination of the wife and which is in all other respects regular is hereby validated and confirmed to the same extent as if the examination of the wife had been separate and apart from the husband."
Our decisions have been to the effect that an attempted conveyance by a wife to the husband, directly or indirectly, without the private examination and certificate as required by G.S. § 52-12, is absolutely void. Foster v. Williams, 182 N.C. 632, 109 S.E. 834; Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624, and cases cited therein; Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165.
We have also expressed doubt as to whether or not such defective acknowledgment could be rendered valid by a subsequently passed statute. Foster v. Williams, supra. Be that as it may, conceding but not deciding that this trust agreement was void as an inter vivos or active trust during the lifetime of the Griffins, such agreement was incorporated in the respective wills of the Griffins by reference and made an integral part thereof as effectively, in our opinion, as if the trust agreement had been set out in full in each of the Griffins' wills.
In the case of Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089, Hoke, J., speaking for the Court said: "It is well recognized in this state that a will, properly executed, may so refer to another unattested will or other written paper or document as to incorporate the defective instrument and make the same a part of the perfect will, the conditions being that the paper referred to shall be in existence at the time the second will is executed, and the reference to it shall be in terms so clear and distinct that from a perusal of the second will or with the aid of parol or other proper testimony full assurance is given that the identity of the extrinsic paper has been correctly ascertained. The principle is sometimes referred to as `the doctrine of incorporation by reference,' and is very well stated by Chief Justice Gray in Newton v. Seaman's Friend *461 Society, 130 Mass. 91, as follows: `If a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and should be admitted to probate as such.' While there are some discrepancies in the application of the principle to the facts of the different cases, this statement is in accord with the great weight of authority here and in other jurisdictions in this country and in England, where the subject has been very much considered."
In 94 C.J.S. Wills § 163, page 952, et seq., it is said: "The doctrine of incorporation by reference, as applied to wills, is followed in many jurisdictions. Under this doctrine, and subject to certain conditions and limitations, a properly executed will incorporates in itself by reference any document or paper not so executed, so as to take effect as part of the will, whether such document or paper be in the form of a will, codicil, contract, deed, or other written form of conveyance of realty, mere list, schedule, or memorandum. If the document is incorporated by reference it makes no difference whether or not the document of itself was valid at law."
In Montgomery v. Blankenship, 217 Ark. 357, 230 S.W.2d 51, 21 A.L.R. 2d 212, the Court said: "As stated in 1 Page on Wills (Lifetime Ed.) Sec. 266, p. 522: `If incorporated by reference it makes no difference whether the original document of itself was valid at law or not. A deed invalid because it never was delivered, may be incorporated in a will. A prior defectively executed will, or the will of another person, or a part of the will of another person, may thus be incorporated. * * * The incorporated document may be treated as part of the will for the purpose of ascertaining the beneficiaries and the share to be given to each.'"
In the case of Fifth Third Union Trust Co. v. Wilensky, 79 Ohio App. 73, 70 N.E.2d 920, the Court said: "A deed, a contract, or any other instrument may be incorporated in a will by reference, and its terms employed as testamentary clauses, although such instrument may have lost its force as to the peculiar original purpose of the document."
Likewise, in In re Sciutti's Estate, 371 Pa. 536, 92 A.2d 188, it was held that "an extrinsic writing, having no validity in itself as a will, nevertheless may be incorporated by reference as part of a valid will."
In the case of Clark v. Citizens National Bank of Collingswood, 38 N.J.Super. 69, 118 A.2d 108, the Court held, contrary to the above views, to the effect that where no valid trust existed, the trust instrument could not be incorporated by reference in a will. However, this seems to be the minority view.
The evidence in this case is to the effect that the Griffins first executed the trust agreement on 13 October 1956 and then immediately thereafter executed their respective wills.
Furthermore, the Griffins were not responsible for the failure of their attorney to have the trust agreement properly executed in accordance with the provisions of G.S. § 52-12. Even so, as stated in Lawrence v. Ashba, 115 Ind.App. 485, 59 N.E.2d 568, "[i]t is apparent however that their minds did meet on a particular testamentary disposition of the property to accomplish a particular purpose, and that they intended the wills made pursuant thereto to remain unrevoked at their death. The mutual agreement of the makers of the wills was sufficient consideration to bind the promisors. Equity will enforce such an agreement when well and fairly founded, and will not suffer one of the contracting parties to defraud and defeat his obligation, but will *462 fasten a trust upon the property involved. Plemmons v. Pemberton, supra (1940, 346 Mo. 45, 139 S.W.2d 910); Sample v. Butler University, 1937, 211 Ind. 122, 4 N.E.2d 545, 5 N.E.2d 888, 108 A.L.R. 857; Brown v. Johanson, 1921, 69 Colo. 400, 194 P. 943; 69 C.J., p. 1302, § 2725."
The appellant assigns as error the refusal of the court below to permit the plaintiff to testify regarding the instructions given him by the Griffins in connection with the preparation of the power of attorney, the trust agreement, and the wills involved herein, as well as to conversations with the Griffins in respect thereto. This evidence was excluded by reason of the provisions of G.S. § 8-51.
The testimony of a witness is incompetent under the provisions of the above statute when it appears (1) that such witness is a party, or interested in the event, (2) that his testimony relates to a personal transaction or communication with the deceased person, (3) that the action is against the personal representative of the deceased or a person deriving title or interest from, through or under the deceased, and (4) that the witness is testifying in his own behalf or interest. Collins v. Covert, 246 N.C. 303, 98 S.E.2d 26; Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156; Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542; Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043.
Since the plaintiff is a party to this action, this assignment of error must be overruled.
It is stated in Anno.Joint, Mutual, and Reciprocal Wills, 169 A.L.R., page 22: "The general rule is that a will jointly executed by two persons, being in effect the separate will of each of them, is revocable at any time by either one of them, at least where there is no contract that the joint will shall remain in effect," citing Ginn v. Edmundson, 173 N.C. 85, 91 S.E. 696. See also Walston v. Atlantic Christian College, 258 N.C. 130, 128 S.E.2d 134.
In Ginn v. Edmundson, supra, where a husband and wife made a joint will disposing of property held as tenants by the entireties, it was held that the survivor could revoke the will at pleasure and take the property free of the will. The Court said: "A joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons, and a mutual or reciprocal will is one in which two or more persons make mutual or reciprocal provisions in favor of each other.
"* * * (I)n the absence of contract based upon consideration that such wills may be revoked at pleasure. * * *"
In the case of In re Davis' Will, 120 N.C. 9, 26 S.E. 636, 38 L.R.A. 289, 58 Am. St.Rep. 771, which involved what purported to be a joint will, this Court said: "There is nothing from which it can be implied even that there was any agreement that, if one should devise to these devisees, the other would do so, or that, if one should afterwards revoke, the other would do so. Either had the right to do so, and without notice to the other. It is not like the case of a mutual will, in which, after the husband's death, by which event the wife's estate was much increased, she makes another will, and diverts the husband's property from the course intended and agreed upon by them at the execution of the joint will. In such case the probate court was unable to control and prevent the wrong, but a court of equity takes hold on the ground of preventing a fraud."
It is equally well settled that where a husband and wife make an agreement for the disposition of their respective estates, in a particular manner, and execute either a joint will or separate wills providing for the disposition of their estates in accordance with the agreement, such agreement may be upheld by specific performance. *463 Turner v. Thiess, 129 W.Va. 23, 38 S.E.2d 369; Underwood v. Myer, 107 W.Va. 57, 146 S.E. 896; Deseumeur v. Rondel, 76 N. J.Eq. 394, 74 A. 703; Ohms v. Church of the Nazarene, Weiser, Idaho, 64 Idaho 262, 130 P.2d 679; 57 Am.Jur., Wills, Section 718, page 488, et seq.; 97 C.J.S. Wills § 1367, page 307, et seq.
In 97 C.J.S. Wills § 1367d, page 305, it is said: "The rights and obligations of the parties to an agreement to make a joint or mutual will are determined by the terms of the agreement; where the intent of the contracting parties is expressed in clear and unambiguous language, the court is relieved of the necessity of resorting to rules of construction, but has the duty to give the contract effect according to its terms. In ascertaining the contract, the situation of the parties and the surrounding circumstances may properly be considered, as in the case of contracts generally; and the contract, or agreement, must be construed in the light of the joint will executed simultaneously therewith. Where the makers of mutual wills make a contract as to the disposition of property, the court will give effect to the contract as made, rather than attempt construction by implication or insertion by reference."
In Thompson on Wills (Second Edition), section 153, page 200, it is said: "As a general rule, a mutual or joint will may be revoked by either of the comakers, provided it was not made in pursuance of a contract. But where such will has been executed in pursuance of a compact or agreement entered into by the testators to devise their separate property to certain designated beneficiaries, subject to a life estate or other interest in the survivor, it is generally held irrevocable when, upon the death of one, the survivor avails himself of the benefits of the devise in his favor.
"In the absence of a valid contract, however, the mere concurrent execution of the will, with full knowledge of its contents by both testators, is not enough to establish a legal obligation to forbear revocation. On the other hand, mutual wills executed in pursuance of a contract are not irrevocable in such sense that one of the makers can not make a subsequent will which will be entitled to probate, although the remedy for breach of such contract may be enforceable in a court of equity. A joint and mutual will is revocable during the joint lives by either party, so far as relates to his own disposition, upon giving notice to the other party; but it becomes irrevocable after the death of one of them, if the survivor takes advantage of the provisions made by the other."
In our opinion, when the wills of the Griffins are considered in light of the provisions contained in the trust agreement, which agreement was incorporated by reference in both wills as containing the provisions for the disposition of their respective estates, the wills themselves establish the existence of the contract and the plaintiff is entitled to specific performance for the benefit of the beneficiaries named in the mutual wills, and we so hold.
The appellant assigns as error the refusal of the court below, as a matter of law, to make allowance of attorney fees for his counsel, and in the discretion of the court to tax the costs against the defendant Wachovia Bank & Trust Company.
G.S. § 6-21, as amended by Chapter 1364 of the 1955 Session Laws of North Carolina, and codified as G.S. § 6-21(2) in the 1961 Cumulative Supplement, leaves the taxing of court costs and the apportionment thereof to be made in the discretion of the court. Moreover, the fixing of reasonable attorney fees in applicable cases is likewise a matter within the sound discretion of the trial court. Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 113 S.E.2d 689; Hoskins v. Hoskins, N.C., 131 S.E.2d 326.
We think there was error in ruling as a matter of law that the petition for counsel fees should be denied.
*464 In view of the conclusion we have reached, the appellant's assignment of error to the sustaining of the defendants' motion for judgment as of nonsuit is upheld, and the judgment entered below is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336317/ | 131 S.E.2d 329 (1963)
259 N.C. 566
In the Matter of Sadie H. MARKHAM, Petitioner.
No. 676.
Supreme Court of North Carolina.
June 14, 1963.
*332 Blackwell M. Brogden, Durham, and Charles B. Markham, New York City, for petitioner.
Claude V. Jones, Durham, for respondents.
BOBBITT, Justice.
The question presented by respondents' appeal, as stated in the briefs, is this: "May a decision of the Durham City Council, reached after public hearing in accordance with the zoning ordinances and statutes, not to amend its existing zoning ordinance so as to change certain property located in Residence and Apartment Residence Zones to a Commercial Business Zone, be reviewed directly by the Superior Court by means of Certiorari directed to the City Council, in the absence of statutory provision for such procedure?"
"At common law and under the practice in most jurisdictions, the writ of certiorari will lie to review only those acts which are judicial or quasi judicial in their nature. It does not lie to review or annul any judgment or proceeding which is legislative, executive, or ministerial rather than judicial. The writ does not lie to review the action of an inferior tribunal or board in the exercise of purely legislative functions." 10 Am.Jur., Certiorari § 10; 14 C.J.S. Certiorari § 18b.
The writ of certiorari issues only to review the judicial or quasi-judicial action of an inferior tribunal, commission or officer. Pue v. Hood, Comr. of Banks, 222 N.C. 310, 312, 22 S.E.2d 896; Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897; State v. Simmington, 235 N.C. 612, 613, 70 S.E.2d 842; Wilson Realty Co. v. City & County Planning Board, 243 N.C. 648, 655-656, 92 S.E.2d 82.
The General Assembly has delegated to "the legislative body" of cities and incorporated towns the power to adopt zoning regulations and, from time to time, to amend or repeal such regulations. G.S. § 160-172 et seq.; Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880; In re O'Neal, 243 N.C. 714, 92 S.E.2d 189.
The "legislative body" of the City of Durham is its City Council. "Municipal ordinances are ordained for local purposes in the exercise of a delegated legislative function * * *." State v. Freshwater, 183 N.C. 762, 111 S.E. 161. "In enacting a zoning ordinance a municipality is engaged in legislating * * *." Marren v. Gamble, supra. It may amend or repeal such ordinance only by acting legislatively. Paliotto v. Harwood, Sup., 217 N.Y.S.2d 864. When acting upon a request for amendment of its zoning ordinance, the City Council of Durham acts in its legislative capacity and not in a judicial or quasi-judicial capacity.
In Rheinhardt v. Yancey, 241 N.C. 184, 84 S.E.2d 655, the plaintiffs sought to restrain the members of the City Council of Gastonia from passing an ordinance relating to annexation. This Court, in ordering the temporary restraining order dissolved, said: "Ordinarily, equity deals with conduct, actual or threatened, not with how the members of legislative bodies vote. In reaching the conclusion stated, we are mindful of the importance of keeping in proper relation and in careful balance the power and authority vested in our distinct, coordinate departments of government, legislative, executive and judicial; for, whatever may be the merits of plaintiffs' cause, a contrary rule would open the door to suits to restrain the adoption of ordinances to such extent as to interfere seriously with the proper functioning of the legislative body. Too, a contrary rule, if carried to its logical conclusion, would warrant, if sufficient facts were alleged, judicial restraint of members of the General Assembly from the passage of legislation alleged to be in conflict with provisions of our organic law. This cannot be done." It was held in State ex rel. Pleasant v. Hardy (La.App.), 157 So. 130, the court had no jurisdiction to hear a suit to restrain a city council from passing an amendment to its zoning ordinance reclassifying certain property in such *333 manner as to permit its use for commercial purposes.
The legal principles stated in the quotation from Rheinhardt apply equally where the plaintiff seeks by mandamus or mandatory injunction to compel a municipal "legislative body" to enact, amend or repeal an ordinance relating to zoning. Northwood Properties Co. v. Perkins, 325 Mich. 419, 39 N.W.2d 25; Paliotto v. Harwood, supra. In Northwood, the action was for a writ of mandamus directing the defendant city inspector to issue to the plaintiff a building permit for the erection of multiple dwellings on certain property owned by the plaintiff and directing the defendant city, mayor, and city commissioners to amend the city zoning ordinance by changing said property from a residence "A" classification, in which single residences only were permitted, to a residence "B" classification where the erection of multiple dwellings was permitted. On the defendants' appeal, the judgment of the lower court ordering issuance of such writ was reversed. The court, in opinion by Dethmers, J., said: "While it is within the province of the courts to pass upon the validity of statutes and ordinances, courts may not legislate nor undertake to compel legislative bodies to do so one way or another. (Citations) The court erred in seeking to compel the defendant mayor and city commission members to amend the ordinance."
"The courts may not interfere with or control a municipality's zoning power or direct zoning ordinances to be repealed, enacted, or amended." 101 C.J.S. Zoning § 323, pp. 1115-1116; Randall v. Township Board of Meridian Township, 342 Mich. 605, 70 N.W.2d 728; Northwood Properties Co. v. Perkins, supra; Paliotto v. Harwood, supra; Schoenith v. City of South Miami (Fla.App.), 121 So. 2d 810; State ex rel. Pleasant v. Hardy (La.App.), 157 So. 130, supra; People ex rel. Danielson v. City of Rockford, 338 Ill.App. 347, 87 N.E.2d 660; Dunbar v. City of Spartanburg, 226 S.C. 360, 85 S.E.2d 281; Lang v. Town Council, 82 R.I. 361, 108 A.2d 166; Beauregard v. Town Council, 82 R.I. 244, 107 A.2d 283, 108 A.2d 253; Herzog v. City of Pocatello, 83 Idaho 365, 363 P.2d 188; Edward H. Snow Const. Co. v. City of Albuquerque, 65 N.M. 133, 333 P.2d 877; State ex rel. Croy v. City of Raytown (Mo. App.), 289 S.W.2d 153. In Herzog, after the Board of Commissioners had denied the owner's request that his property be rezoned, the owner (plaintiff) instituted "this action seeking to compel appellant city to permit respondents to use their said property for the purpose of constructing and maintaining an automobile service station thereon."
"In the absence of statutory authority therefor, certiorari usually is not a proper remedy to test the legislative action of a municipality as to zoning." 101 C.J.S. Zoning § 335, p. 1153. Specifically, it has been held that the refusal by a city council to amend the zoning ordinance to change the classification of specific property in accordance with the request of the owner was an exercise of its legislative function and not subject to judicial review on certiorari. Dunbar v. City of Spartanburg, supra; Lang v. Town Council, supra; Beauregard v. Town Council, supra. Upon like ground, it has been held that the enactment by a municipal legislative body of an ordinance rezoning property is not subject to judicial review on certiorari. Edward H. Snow Const. Co. v. City of Albuquerque, supra; State ex rel. Croy v. City of Raytown, supra.
We are advertent to decisions in New Jersey in which it is held that certiorari is the appropriate remedy to test the reasonableness of a zoning ordinance. Brown v. Terhune, 125 N.J.L. 618, 18 A.2d 73. The New Jersey procedure as set forth in Payne v. Borough of Sea Bright, 14 N.J.Misc. 756, 187 A. 627, is approved in Eastern Boulevard Corporation v. Board of Com'rs of Town of West New York, 124 N.J.L. 345, 11 A.2d 832. See also Cliffside Park Realty Co. v. Borough of Cliffside Park, 96 N.J.L. 278, 114 A. 797. It would serve no useful purpose to discuss the distinctive features of the New Jersey procedure.
*334 We have considered the decisions referred to in the excellent briefs filed in behalf of petitioner. However, we find no decision in New Jersey or elsewhere in which the failure of a city council to enact a proposed amendment to a zoning ordinance has been successfully challenged by certiorari or otherwise.
The Planning and Zoning Commission (G.S. § 160-22 et seq. and G.S. § 160-177) had no legislative, judicial or quasijudicial power. Its report (recommendation) did not restrict or otherwise affect the legislative power of the City Council. The hearings before the Planning and Zoning Commission as well as the hearings before the City Council (G.S. § 160-177 and G.S. § 160-175) are required in order to afford "parties in interest and citizens" an opportunity to be heard with reference to proposed legislation. Whether the zoning ordinance should be amended as requested by petitioner was for determination by the City Council in the exercise of its purely legislative function.
The Planning and Zoning Commission is separate and distinct from the Board of Adjustment appointed in accordance with G.S. § 160-178. The Board of Adjustment "is clothed, if not with judicial, at least with quasi-judicial power, it being its duty to investigate facts and from its investigation to draw conclusions as a basis of official action and to exercise discretion of a judicial nature." Harden v. Raleigh, 192 N.C. 395, 135 S.E. 151; Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1. Even so, it "is not a lawmaking body" and may not disregard zoning regulations adopted by the "legislative body," to wit, the City Council "It can merely `vary' them to prevent injustice when the strict letter of the provisions would work `unnecessary hardship.'" Lee v. Board of Adjustment, supra. "Every decision of such board shall, however, be subject to review by proceedings in the nature of certiorari." G.S. § 160-178; In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1; Lee v. Board of Adjustment, supra; Chambers v. Board of Adjustment, 250 N.C. 194, 198, 108 S.E.2d 211, 74 A.L.R. 2d 412; Jarrell v. Board of Adjustment, 258 N.C. 476, 480, 128 S.E.2d 879.
The statute (G.S. Chapter 160, Article 14) contains no provision for judicial review by certiorari or otherwise of the action of the "legislative body" of cities and towns with reference to the enactment, amendment or repeal of zoning regulations.
We have not overlooked Bryan v. Sanford, 244 N.C. 30, 92 S.E.2d 420, where this Court, as stated correctly in the third headnote in our Reports, held: "Mandamus will lie to compel a municipality to zone one of four corners at an intersection in the same manner as it had zoned two other corners at the intersection, such action being a ministerial duty of the city under G.S. 160-173." In the specific factual situation described therein, G.S. § 160-173 expressly deprives a city council of its legislative discretion and authority.
Pursuant to petitioner's request, hearings were held in accordance with statutory procedure. No action was instituted by petitioner against the City of Durham or against its Mayor or against the members of its City Council. Until the City Council refused to enact the (specific) ordinance submitted by petitioner, relating solely to petitioner's said property, petitioner sought to invoke the legislative powers of the City Council. Neither the City of Durham nor its Mayor nor the members of its City Council were in the position of adverse litigant. They were cast in this new role when the motion (under special appearance) to dismiss the writ of certiorari was overruled and they were required to answer the allegations of the petition for certiorari.
For the reasons stated, we are of opinion, and so decide, that the court had no jurisdiction to review on certiorari or otherwise the City Council's failure to amend the zoning ordinance as requested by petitioner. The said motion of "respondents" should have been allowed. The court was in error *335 in undertaking to pass upon the "merits" of petitioner's asserted grievance. Hence, the judgment affirming the action (in refusing to enact the requested ordinance) of the City Council is vacated; and the proceeding is remanded to the superior court for entry of an order dismissing the writ of certiorari and the petition therefor.
The real controversy would seem to be whether the zoning ordinance now in effect is invalid as to petitioner's property. Appropriate procedures are available for a judicial determination thereof. Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867, 126 A.L.R. 634; Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870; Penny v. Durham, 249 N.C. 596, 107 S.E.2d 72; Helms v. Charlotte, 255 N.C. 647, 122 S.E.2d 817.
Error and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336323/ | 107 Ga. App. 712 (1963)
131 S.E.2d 782
LEVERETTE
v.
THE STATE.
39978.
Court of Appeals of Georgia.
Decided April 9, 1963.
Rehearing Denied May 3, 1963.
*713 Walton Hardin, for plaintiff in error.
Clete D. Johnson, Solicitor General, Williford & Grant, John W. Williford, William F. Grant, contra.
JORDAN, Judge.
1. Special ground 1 of the amended motion which complains that the trial court erred in refusing to sustain the movant's challenge to a juror for cause, thus causing the defendant to "exhaust one of her 20 strikes" in removing said juror from the panel, presents no cause for a new trial since it does not affirmatively appear from said ground that the movant exhausted all of her strikes, or that she was injured by the court's ruling. Ethridge v. State, 163 Ga. 186 (1b) (136 S.E. 72); Crews v. State, 44 Ga. App. 546 (2) (162 S.E. 146).
2. The defendant admitted shooting the deceased with a .22 caliber pistol, her defense being that the shot was fired in self-defense in an attempt to frighten the deceased (who according to the defendant's testimony was standing within the front door of her home and was threatening her with bodily harm at the time of the shooting) and that said shot accidentally struck the deceased. In support of her defense the defendant, who had been sworn as a witness in her own behalf, testified that she had been terrified by the appearance of the deceased at her home on the evening of the shooting since, earlier in the day, she had *714 encountered the deceased in Calhoun Falls, South Carolina, where she had gone in search of her husband, and the deceased had violently beaten her, scarring her about the face. She also testified in regard to her experience with firearms and stated that "I had never loaded the gun [from which the fatal shot was fired] and I had never shot the gun before."
After the defendant had completed her testimony, the State presented various rebuttal witnesses who gave testimony to the effect that the defendant's husband, and not the deceased, had beaten the defendant on the occasion alluded to, that the defendant had admitted that the scarring of her face was caused by a beating administered by her husband, and that she had admitted firing the pistol with which she shot the deceased on an occasion prior to the occurrence in controversy. The testimony of these rebuttal witnesses was objected to on the ground that their testimony illegally put the defendant's character in issue and violated the law of the case as established by the prior decision of this court in Leverette v. State, 104 Ga. App. 743, supra; and the remaining special grounds assign error on the denial of the defendant's motions to strike said testimony.
These grounds are not meritorious for any reasons assigned, for the evidence complained of therein was clearly admissible for purposes of impeachment by disproving material facts testified to by the defendant and as proof of contradictory statements made by the defendant on matters relevant to her testimony and to the case under the provisions of Code §§ 38-1802, 38-1803; and the trial judge specifically instructed the jury that said evidence was being admitted for that purpose and that purpose alone. The defendant having been sworn as a witness in her own behalf in this case was subject to examination and cross-examination as any other witness under the provisions of Code Ann. § 38-415, "except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue." Ga. L. 1962, pp. 133, 134. Accordingly, while the defendant was not subject to impeachment by proof of general bad character or prior convictions in the manner provided by Code § 38-1804 unless and until she had put her character in evidence, she was *715 subject to impeachment, as any other witness, under the provisions of Code §§ 38-1802, 38-1803.
An examination of the record before this court on the prior appearance of this case discloses that the objectionable evidence concerned the defendant's alleged attempt to shoot her husband and was introduced by the State as evidence of a similar crime to that for which the defendant was then being tried in an attempt to prove her guilt of the latter offense. Such evidence was clearly inadmissible under the circumstances of the prior trial and, since it illegally put the defendant's character in issue, the admission of the same constituted reversible error. As pointed out above, the circumstances of the admission of the evidence objected to in this case were materially different, the evidence being offered in rebuttal for the purposes of impeachment only; and the trial judge severely limited the scope of the evidence admitted for such purpose (there being no evidence relating to the alleged attempt by the defendant to shoot her husband) and specifically instructed the jury as to the limited purposes for which said evidence complained of in this case was not in violation of the rulings made on the prior appearance of the case and was not erroneous for any reason assigned.
3. The general grounds of the motion for new trial have been abandoned and will not be considered by the court.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur. | 01-03-2023 | 10-30-2013 |
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